Lawyers for Christian Porter have accused the ABC of dragging its feet to avoid a trial date in the former attorney general’s high-stakes defamation case against the national broadcaster.
After federal court justice Jayne Jagot effectively paused the case last week following a separate bid to block barrister Sue Chrysanthou SC from appearing for the former attorney general, documents filed in the court show a tense week of negotiations between the two parties in the lead-up to Friday’s hearing.
Jo Dyer, a friend of the woman who accused Porter of rape – an allegation he strenuously denies – is attempting to stop Chrysanthou acting for Porter over what she says is a conflict of interest.
Dyer claims she sought advice from Chrysanthou in relation to an article in the Australian newspaper about her appearance in a November Four Corners program, and that the high-profile Sydney defamation silk had reviewed a legal letter sent on her behalf.
In the lead-up to Friday’s hearing, Grant McAvaney, the ABC’s in-house lawyer and a former Minter Ellison partner, wrote to Porter’s lawyers saying Dyer’s application was of “significant relevance and concern” to the national broadcaster, raising a “possible misuse” of confidential information by Chrysanthou.
“Ms Dyer alleges that, in the course of the lawyer-client relationship, she provided Ms Chrysanthou with confidential information which relates to Mr Porter’s proceeding against our clients in which Ms Chrysanthou is now acting for Mr Porter,” McAvaney wrote.
“Counsel for Ms Dyer submitted to His Honour Justice Thawley in a hearing [on 12 May] that there was a possible misuse of confidential information by Ms Chrysanthou. We understand this to mean that Ms Chrysanthou has possibly used confidential information obtained from Ms Dyer in acting for Mr Porter in the proceedings against our clients.”
McAvaney foreshadowed the ABC’s eventually successful attempt to have the pre-trial proceedings delayed until the Chrysanthou matter is dealt with in a three-day hearing later this month.
But in a fiery reply, Porter’s solicitor, Rebekah Giles, said there was “no allegation” that Chrysanthou “has possibly misused confidential information”, saying the ABC lawyer’s suggestion was “improper and should be withdrawn immediately”.
Giles also took aim at the ABC’s assertion it had learned about Dyer’s intervention in the case through media reports, writing: “Are you seriously suggesting that your clients were not aware that Ms Dyer had been threatening this application?”.
If that was the ABC’s claim, she said, “we request an affidavit attesting to this”.
“Upon receipt, we will seek production of all of your clients’ communications with Ms Dyer [and] any other person in relation to this matter”.
While the Porter trial is likely to go ahead in September, no date has been formally scheduled, and in the letter Giles accused the ABC of seeking to delay proceedings.
“You have neglected for a week to inform us of your clients’ position in relation to the hearing date,” she wrote.
“It is clear to us that your clients are trying to avoid a hearing date and your letter this morning evidences that.”
After initially suggesting Chrysanthou would have to be “quarantined” from the case, Jagot eventually decided to adjourn Friday’s procedural hearing for a fortnight until the Dyer matter had been heard.
In a separate hearing earlier last week, Michael Hodge, QC, acting for Dyer, reportedly said his client had a “lawyer-client relationship” with Chrysanthou, and that there was a “real and obvious possibility that the information disclosed in the course of relationship will have relevance to Mr Porter’s proceedings”.
But lawyers for both Porter and Chrysanthou have argued the barrister has no substantive memory of her dealings with Dyer.
In another short hearing on Friday in which the three-day hearing was set down, Christopher Withers SC, acting for Porter, said there was “no allegation” Chrysanthou had “breached her duty” and suggested it was “common ground” that she did not recall her conversations with Dyer.
Dyer’s intervention in the Porter case has added a new complication in a trial that is likely to draw national attention if and when it eventually begins. One of Sydney’s highest-profile defamation specialists, Chrysanthou has acted for a string of high-profile clients, including Geoffrey Rush and the Greens senator Sarah Hanson-Young.
The former attorney general is suing the public broadcaster, and journalist Louise Milligan, over an article alleging that an unnamed cabinet minister had been accused of a January 1988 rape in a dossier sent to Scott Morrison and three other parliamentarians.
After a storm of media attention, Porter identified himself in early March as the minister and strenuously denied the allegation.
The ABC has said truth will play a “significant” part in its defence, with at least 15 witnesses to be called.