Christian Porter is seeking to prevent the ABC’s redacted defence from ever being viewed by the public, a move lawyers for Nine and News Corp Australia say would amount to “special treatment” for the former attorney general.
Following Porter’s sensational decision to drop his highly-anticipated defamation bid against the national broadcaster in May, both parties agreed to destroy the still-redacted defence which had been put forward in the case.
But a number of news organisations have sought access to the confidential file, and at a hearing in June, justice Jayne Jagot questioned whether the parties could make that decision as part of the out-of-court deal.
In a hearing to decide the fate of the defence on Friday, Porter’s barrister, Bret Walker SC, argued before Jagot that the document should be removed from the court file as a result of the “emphatic” agreement between the two parties that the defence should not be made public.
In the absence of any improper agreement between the parties the court should agree to consent to the order, he said.
Walker said removing the defence from the court file would not mean “expungement by way of some intellectual black hole form the records of the court”, but to be held in the court records in a way that would “remove the possibility of access [to it] by other parties”.
That had the practical effect, he said, of making an interim suppression order regarding the material invalid, which in turn removed the standing of the intervening media companies.
Jagot put it to Walker that the “practical legal consequence of what you’re saying is that ... it would not be a document in a proceeding amenable to inspection by a non-party”.
Appearing on behalf of both Nine and News Corp, barrister David Sibtain said making the defence available would not “detract” from the agreement struck between Porter and the ABC. Sibtain said it would be a “defacto exceptional case” if an out-of-court settlement resulted in a document being removed from a file, saying the “ordinary course” was for the court file to “remain intact”.
“The question your honour is called on to decide is whether it is appropriate to make that order by consent,” Sibtain said.
“My submission is it would not be because it would be giving special treatment to this proceeding, special beyond the treatment given to other proceedings which settle.”
Jagot reserved her decision. In June she had questioned the ability of the parties to make an out-of-court agreement about the fate of the document.
Calling it “a fundamental issue about the integrity of the court file”, Jagot said the parties would need to convince her “why a court would allow the removal of a document from a court file”.
