Christian Porter’s lawyers have lost their bid to block a last-minute affidavit from Macquarie Bank managing director James Hooke which the former attorney general’s lawyer’s argued could “derail” his high-stakes defamation bid against the ABC.
Monday is the first of a three-day hearing into whether Porter’s high-profile Sydney barrister, Sue Chrysanthou SC, should be stopped from acting for the former attorney general in his case against the national broadcaster and journalist Louise Milligan.
Jo Dyer, who was a debater with the woman in the late 1980s, claims Chrysanthou has a conflict of interest because of a meeting the two women had late last year in relation to an article in the Australian newspaper by Janet Albrechtsen about a November ABC Four Corners episode Dyer appeared in.
Dyer claims the meeting means Chrysanthou has “confidential” information about the case which would give her an insight into her “strengths, weaknesses, honesty, knowledge and beliefs”.
Chrysanthou, a defamation specialist who has acted in a number of high-profile cases including actor Geoffrey Rush’s successful case against the Daily Telegraph, says she attended the meeting as a favour to another barrister, did not charge for her advice, and is not in possession of any confidential information.
The first day of the hearing was complicated by the introduction of the new affidavit filed over the weekend by Hooke, a friend of both Porter and the woman who before her death accused Porter of raping her three decades ago. Porter strenuously denies the allegation.
Hooke, who in March released a statement revealing he had “relevant discussions” with Porter’s accuser from “mid-1988 until her death” in June 2020 and with Porter from 1992 onwards, was at the November meeting and is due to be called as a witness in this hearing.
But the new affidavit, issued over the weekend, which Dyer’s barrister Michael Hodge QC told the court “sweeps away the last vestiges” of Chrysanthou’s argument that she does not have any confidential information from the meeting, could have significant consequences for the defamation case.
On Monday, Christopher Withers SC, the barrister acting for Porter on behalf of Chrysanthou, said the new affidavit could “derail” the timeline of the former attorney general’s high-stakes defamation case.
Porter’s case against the ABC has been effectively put on hold while the Dyer case is resolved, with a crucial hearing scheduled for early next month to decide whether portions of the ABC’s defence will be struck out.
Withers said the new affidavit amounted to new information which went “beyond the pleading” of the Dyer case, and made the banking executive the “main speaker” at the 20 November meeting.
“There are real questions about the account set out in this affidavit,” Withers said.
Hooke’s involvement in the 20 November meeting with Chrysanthou was initially treated as confidential by Dyer’s lawyers, and on Monday Withers questioned why his presence had not been revealed earlier.
“What that suggests is Mr Hooke didn’t want his involvement in this conference known, what that next suggests is Mr Hooke didn’t want to disclose [what he said] in the conference … which in turn raises a very interesting question about whose confidential information is this?” he said.
“What that rather suggests is it’s his confidential information, and if that’s right one wonders about the objective in this case [because] obviously he has no right to seek to restrain Ms Chrysanthou from acting in this case because she was never his lawyer.”
The detail of Hooke’s affidavit has remained confidential, and after the court was briefly adjourned to hear evidence in private on Monday afternoon, Justice Tom Thawley ruled against Porter, saying Hooke’s evidence was “central” to the question of whether Chrysanthou could act for the former attorney general.
“The evidence is central to the critical issues dividing the parties because it explains in some detail the nature of the information alleged to have been given to Ms Chrysanthou at the conference on 20 November,” he said.
Despite earlier suggesting it would be necessary to seek an adjournment if the new evidence was permitted, Withers said after the ruling the case “can continue and should continue”, while successfully seeking discovery of documents related to the Hooke affidavit.
The new affidavit has placed significant time-concerns on the urgent three-day hearing. The court had been due to hear from Dyer and Hooke on Monday, but their evidence, and that of Chrysanthou and Porter’s solicitor, Rebekah Giles, has now been pushed back to Tuesday.
Earlier, Withers told the court during his opening address that the claims by Dyer’s lawyers that Chrysanthou had access to confidential information were “hopelessly inadequate”, and labelled the case “a storm in a teacup”.
“What we will be saying is that insofar as any matters [at the 20 November meeting between Dyer and Chrysanthou] happen to pertain to any of the issues in the Porter defamation … all of those issues are out there in the public domain,” he told the court.
Withers said any information that was not in the public domain was nevertheless known by “all the litigants” in the Porter case.
“The litigants in [the Porter case] are all aware of that same information, so there can be no risk of misuse by Ms Chrysanthou if it’s known to the ABC, to Ms Milligan and in fact is being deployed in a defence against us,” he said.
But Hodge told the court it was a “straightforward case” about “a lawyer-client relationship” between Chrysanthou and Dyer.
“In the course of that lawyer-client relationship a conference occurred, during the course of that conference a number of topics of information were discussed with Ms Chrysanthou.
“Ms Chrysanthou’s receipt of that information is confidential because of the lawyer-client relationship, and … those topics are or are likely to be relevant to the defamation proceedings bought by Mr Porter against the ABC.”
The hearing continues.