A close friend of the woman who accused Christian Porter of rape may be forced to hand over private communications including Facebook messages about the case as the former attorney general fights her attempt to stop his barrister appearing in his defamation trial against the ABC.
In a hearing on Wednesday, lawyers for Porter argued Jo Dyer, who has brought an application to stop high-profile defamation lawyer Sue Chrysanthou SC acting for the former attorney general, should hand over all communications including posts and messages sent on Facebook related to the case.
Dyer, who was a debater with the woman in the late 1980s, is attempting to block Chrysanthou from acting for Porter in the high-stakes trial against the ABC over what she says is a conflict of interest. The two women had a meeting in November last year in relation to coverage by The Australian of an ABC Four Corners episode Dyer appeared in.
Porter has strenuously denied the allegations made against him and is suing the ABC for defamation over its report of the claim.
In court documents lawyers for Dyer argue Chrysanthou should be removed from the case to “prevent prejudice to the proper administration of justice, and to preserve confidentiality and legal professional privilege”.
Chrysanthou has said she does not remember what was disclosed to her during the meeting, and acting on behalf of Porter, Christopher Withers SC said it would be a “very, very big deal” if she was blocked from acting in the case because of the time already invested in the trial and her “specialist skills” as a defamation expert.
Withers said he would attempt to prove that Chrysanthou did not receive confidential information during the meeting, and messages sent by Dyer about the case would show “to what extent has [Dyer] talked about these matters to anyone who is interested”.
On Wednesday Withers went through a list of public tweets made by Dyer about the issue, saying she was “a person who has an interest and a desire to make sure that this issue remains at the forefront of public discussion”.
“That is something which she is entitled to do [but] an inference could be drawn that when she comes to Ms Chrysanthou’s chambers [and] gives her information … that is not the only instance that she has said the things that she is alleged to have said on the 20th of November,” he said.
“The inference can be drawn, we will submit, that these kinds of statements she has made have been made more broadly, in small forums and in large forums. If that is right, that will be directly relevant to whether the information [at the meeting] was in fact confidential at the time and remains confidential.”
But acting for Dyer, Michael Hodge QC argued attempting to have Dyer disclose all of her communications was “onerous” and not relevant because, he said, of the “nature of the lawyer-client relationship” between the two women. He also said the nature of the public statements about the case made by Dyer “do not cover the entirety of the information that was disclosed” to Chrysanthou during the November meeting.
“If the information had been disclosed to the public then [yes it would be relevant] but this is not limited to information which has gone into the public domain, this is concerned with any communication that Ms Dyer has had with anybody about anything to do with the things she discussed with Ms Chrysanthou,” he said.
In his orders, Justice Thomas Thawley amended Withers’ request, ordering Dyer to hand over communications except information which she had “explicitly or implicitly” said was confidential.
Withers also told the court that at next week’s hearing he would argue that the 20 November meeting did not constitute a lawyer-client relationship on the basis it did not involve a formal retainer.
Asked by Thawley during Wednesday’s hearing whether it was “a little bit odd” for a barrister “to give a client advice and not be retained”, Withers said: “No. You can have a situation where as a barrister … where you function as a sounding board, someone comes to you and say I’ve got this case, I want to ask you some questions and get your feedback [and] you have an informal discussion over a coffee and you give some feedback.
“In those circumstances you haven’t agreed to act for that client.”
