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Two major media companies have lost in their bid to have 27 redacted pages of the ABC’s defence in the Christian Porter defamation case released to the public, with a judge ruling the document should be removed from the court’s file “to prevent prejudice to proper administration of justice”.
Although Porter ended his defamation case against the ABC in May, agreeing to keep the document secret, both Nine and News Limited had sought access to the document.
Lawyers for the media companies argued that normally when a proceeding is settled documents remained on the court file available for inspection, and that Porter should not obtain “special treatment” as a result of the agreement with the ABC.
Justice Jayne Jagot also had reservations about the agreement, questioning whether the two parties could agree to destroy documents contained in the broadcaster’s still-redacted defence.
In her judgement Jagot agreed that although ordinarily a document would remain on the court file, it did not amount to “special treatment” to remove it. She sided with Porter’s lawyer’s who had argued against the application by the media companies on the basis the court should not unnecessarily impede the agreement between the former attorney general and the public broadcaster.
To do so, she found, “would be to undermine the lawful contractual bargain which the parties struck to compromise all of their claims” and that refusing to uphold the agreement “may involve prejudice to the proper administration of justice by potentially discouraging parties from settling all elements of their dispute”.
“Provided a contract is lawful and the parties are competent, freedom to contract is one of the foundational pillars of the common law,” Jagot wrote in her judgement.
“Between themselves the parties have determined a lawful way in which to resolve all disputes between them and that resolution, accordingly, reflects the just resolution of the disputes between them as quickly, inexpensively and efficiently as possible.”
The judge ordered the document be removed from the court file and placed in an envelope marked “NSD206/2021 Charles Christian Porter v Australian Broadcasting Corporation and Anor, Unredacted Defence and Unredacted Reply”.
It would be removed from the court file and was “not to be opened or made available for inspection by the public other than by leave of the court”.
The decision, she found in her brief orders, was made “on the grounds it is necessary to prevent prejudice to the proper administration of justice”.
Porter agreed to discontinue his defamation case against the ABC over a news article that reported allegations an unnamed cabinet minister had been accused of raping a woman in the 1980s.
Porter has strenuously denied the allegations, but dropped the defamation case despite failing to secure an apology or retraction from the public broadcaster over the story.
The decision comes after Jagot made orders to release the document to the South Australian Coroners Court as part of an investigation into the death of the woman who accused him of raping her three decades ago. In her judgement Jagot acknowledged that order had been granted after a request from the SA coroner.
“Since the hearing, and with the agreement of the parties, I varied the interim suppression and non-publication orders on 28 July 2021 to permit the South Australian Coroner’s Court access to the unredacted defence in accordance with a request received from that Court,” she wrote.