In federal court room 18c this week, Sue Chrysanthou SC spent much of her time with her head buried in legal briefs.
Having found herself in the unusual position of being banished from the bar table, the not-typically-reserved silk did her best to keep her focus on the work – and there is no suggestion she will have any shortage of it.
Like most barristers, Chrysanthou does not give interviews. But during a four-day trial this week, she received the kind of advertising most can only dream of.
Her client, the former Australian attorney general Christian Porter, spent what a letter read out in court estimated would be $150,000 to keep her – one of the country’s top defamation silks – on his highly anticipated case against the ABC over the broadcaster’s reporting of an alleged historical rape claim made against him, which he vehemently denies.
It didn’t work. A few hours after closing submissions on Thursday, the federal court justice Tom Thawley delivered his judgment: Chrysanthou, he said, would have to remove herself from Porter’s case because of confidential information she received during a 20 November meeting with two friends of Porter’s accuser.
As his defence of Chrysanthou’s place at his bar table suggests, the result is a blow for Porter. The stock of Australia’s defamation bar is not deep. Though still relatively new to silk – appointed senior counsel in 2020 – Chrysanthou has established a fearsome record. Notably, she acted for the actor Geoffrey Rush in his case against the Daily Telegraph – a win which netted him a record damages payout of $2.9m.
A trial in the Porter case – if it makes it that far – is still at least four months away, but already the case has been subject to a myriad of twists. Just hours before the Thawley judgment was handed down, documents published by the federal court revealed the parties had agreed to engage in mediation.
Though many assumed it was linked to Chrysanthou’s impending restriction, mediation is common in defamation cases, and it is not clear that it was Porter who initiated it. The ABC’s statement, that as a model litigator it was “especially” important for it to “seek to explore potential resolution options” seemed to suggest as much. There is also a question over whether evidence presented during the Chrysanthou case may yet have some bearing on the Porter trial.
Add to that, the week ahead. On Tuesday the parties will return to the federal court in a two-day hearing in which Porter’s lawyers will attempt to strike out major portion’s of the ABC’s defence.
Filed after the public broadcaster lodged its defence earlier this month, the application accuses the ABC of filing material that is either scandalous, frivolous, vexatious, evasive or “otherwise an abuse of the process of the court”.
But first, the former attorney general will need to find another lawyer.
Explaining how Chrysanthou’s case got to Thursday takes a dizzying amount of exposition, but here we go. On 8 November, Four Corners broadcast “Inside the Canberra Bubble”, an episode that focused on Porter and another minister, Alan Tudge.
Five days later, on 13 November, Janet Albrechtsen, a conservative columnist from the Australian, published an opinion piece under the headline “vested interests cornered by shoddy ABC hatchet job”.
The article made a number of claims about one of the people interviewed in the piece, Jo Dyer, a director of the Adelaide Writers’ Week, who, in the 1980s, had been a school debater with both Porter and, the public would learn a few months later, the woman who accused him of raping her.
Concerned about the article, Dyer, and another friend of the woman’s, James Hooke, a managing director at Macquarie Bank, enlisted solicitor Michael Bradley and barrister Matthew Richardson to seek advice on a concerns notice to be sent to the newspaper.
Richardson, the son of former Labor powerbroker Graham Richardson, asked his close friend, Chrysanthou, to meet them for advice. Held in Chrysanthou’s chambers, what happened at the meeting is simultaneously contested, and a mystery.
Much of this week’s evidence was heard in secret. Outside court, Chrysanthou seemed sanguine about the proceedings, joking with journalists that rather than the case in question, the real story they should be covering was a rare possum virus that had killed two of the animals she had been looking after in her side-gig as a wildlife rescue volunteer.
What happened inside remains confidential, but Dyer and Hooke told the court that confidential information relevant to the case was disclosed at the November meeting. Chrysanthou disputed that, saying her recollection was that it was she who had done most of the talking.
She further argued, through Porter’s lawyers, that any information she did learn at the meeting had subsequently been made public.
The meeting was not the last contact Chrysanthou had with the parties. Indeed, their last interaction was not until 4 March this year, only 11 days before Porter’s statement of claim was filed. The court heard that when she was offered the brief, Chrysanthou had turned her mind to whether she had a conflict, but decided she did not. She also sought advice from “two former bar association presidents [and] two other silks” who agreed with her.
Her friend, Richardson, however, disagreed, and the court heard evidence that after a number of discussions he told her as much: “I just keep thinking how I would feel if I was in the position of James and Jo and the answer is not good,” the court heard he said in an email.
During cross-examination she was pushed by Dyer’s barrister, Michael Hodge QC, on why she had not listened to Richardson, replying that everyone she had spoken to “disagreed with Matthew”.
“Yes but the difference between Mr Richardson and everyone else was that everyone else could only rely on what you told them about what you knew [and] Mr Richardson was the one person you spoke to who was also at the conference,” Hodge responded.
A last-minute affidavit by Hooke, whose presence at the meeting and involvement in the case had previously been kept secret for reasons never explained in open court, seemed to contradict her version. As Thawley found in his decision to allow the evidence in opposition to Porter’s lawyers, the affidavit was “central to the critical issues dividing the parties”. Or, as Hodge said, it “sweeps away the last vestiges” of the claim that no confidential information was discussed at the meeting.
In the end, Thawley agreed with Dyer and Hooke’s version of events. While he did not disagree that Chrysanthou could not remember receiving confidential information, he found that memories were “liable to being revived”.
The information relayed at the meeting, Thawley said, was “confidential and has remained confidential since”. Some of it, he ruled, “is relevant to the defamation proceedings brought by Mr Porter”, and could present a “danger of misuse”.
