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RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

The decision by Christian Porter to settle his defamation action against the ABC is the end of one battle. But the former Attorney General, accused of a historic rape that he strenuously denies, is still fighting on at least two other fronts.

Today, Mike Seccombe on how the so-called ‘Defamation trial of the century’ ended - and what happens next.

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RUBY:

Mike, to explain the latest developments in the Christian Porter case, I think that it would be helpful to go back to the beginning of this story. So where does it all start?

MIKE:

Well, it starts with the publication of an online article by one of the ABC's senior investigative journalists, Louise Milligan, from Four Corners. And that article contained allegations that a serving cabinet minister had sexually assaulted a woman way back in 1988.

RUBY:

Mike Seccombe is the National Correspondent for The Saturday Paper.

MIKE:

And it referred to a letter that had been sent to the Prime Minister calling on him to launch an investigation into this alleged assault. Now, the article didn't name any names, but there was immediately, of course, speculation about who it could be.

Archival tape -- Unknown Person 1:

“Everyone the Attorney General will make a statement and then is happy to answer all your questions.”

MIKE:

And five days after the story was published, Christian Porter, then the Attorney General, came out, held a press conference and identified himself as the cabinet minister against whom the allegations had been made.

Archival tape -- Christian Porter:

“Had the accusation ever been put to me before they were printed, I would have at least been able to say the only thing that I can say — and that is that nothing in the allegations that have been printed ever happened.”

MIKE:

He strongly denied them and he said he was going to take a short period of leave to assess how he would respond and to mend his mental health. He said he was under a lot of stress.

Archival tape -- Christian Porter:

“I have discussed with the Prime Minister today that after speaking with my own doctor I am going to take a short period of leave to assess and hopefully improve my own mental health.”

MIKE:

Soon after that, Porter announced that he would be assembling a legal team and suing the ABC and Louise Milligan for defamation. And this was dubbed by some people the defamation trial of the century. You know, a cabinet minister, the Attorney General, no less, chief law officer of land, suing the national broadcaster.

RUBY:

Hmm. And so, Mike, can you tell me a bit more about what Christian Porter was trying to achieve here by launching this legal action? Was this about trying to clear his name?

MIKE:

Well, these things are always justified as trying to clear your name, and I'm sure that was part of it. But, you know, when you sue for defamation, there's a number of possible outcomes apart from clearing your name.

So, best case scenario for Porter would have involved a grovelling apology from the ABC. It would have involved the removal of the offending article from the online site where it was published and a promise not to republish it. And, of course, the payment of substantial damages for damage to his reputation and potentially, some people suggested also aggravated damages, if it could be shown that the publication was made in malice.

So Porter was trying to achieve all of these outcomes, I would suggest. And, you know, there were some commentators who thought it was just a slam dunk for him. I mean, The Australian's legal affairs editor wrote at the time, and I'm quoting, ‘The big issue is not whether the national broadcaster will lose. That's almost a given. It's how badly it loses.’

RUBY:

So these are fairly high stakes, Mike, and this was an intensely watched and commented upon legal battle. I think there was a broad sense that Porter was well placed to win. So where did things start to go wrong for Porter?

MIKE:

Well the big stumbling block for Porter was the controversy over his choice of legal counsel, Sue Chrysanthou, SC. Chrysanthou is one of the most respected defamation lawyers in the business and very expensive, I might add, as well. And Porter's decision to engage her showed, you know, he was going in big, going in hard, willing to spend big to try and win.

But it didn't work out for him because Jo Dyer, who was a friend of Porter's accuser, brought legal action objecting to Chrysanthou acting for Porter.

Dyer's claim was that Crysnthou had received confidential information relevant to the Porter case when she, Dyer, consulted her on a separate but related matter. So this necessitated a lot of toing and fraying between the parties. Eventually, a four day separate hearing. And at the end of that, the judge in that case, Justice Thomas Thorley, ruled that Chrysanthou would have to relinquish the brief due to a, quote, danger of misuse, unquote, of the information that she'd received from Dyer.

RUBY:

So that must have been a blow for Porter.

MIKE:

Well, that blew a very big hole in things for Porter. Because he'd lost his counsel, who'd done all the work. Of course, there were extra costs involved in this second matter before the court. And bottom line, the very same day, Porter and the ABC went into mediation to try and resolve the case before trial.

And very soon after that, it was announced that they had reached an agreement.

Archival tape -- Reporter 1, 2 & 3:

“To breaking news now and the former Attorney General Christain Porter has claimed vindication after dropping his defamation case against the ABC…”

“An eleventh hour defamation settlement secured…”

“But Hugh, it seems the fight is far from over with a war of words erupting over the terms of the settlement…”

MIKE:

Whereby Porter would drop the case and the ABC would publish a small editor's note at the bottom of the article. So the article was not taken down. There was no apology.

And importantly, no damages were paid to Porter either. The parties covered their own costs. The ABC picked up the cost for the mediation. But in the scale of things, that was very small beer.

RUBY:

We’ll be back in a moment.

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RUBY:

Mike, Christian Porter went into this defamation case hoping for a retraction, for an apology and for damages. He got none of that. So what is he saying about what happened and how it ended the way that it did?

MIKE:

Well, he's spinning like a dervish.

I mean, he really is when he addressed the media on Monday last week, he portrayed the withdrawal of his defamation claim as a personal victory and a, quote, humiliating backdown, unquote, by the ABC.

Archival tape -- Christian Porter:

“They regret the outcome of that article, that is a humiliating backdown for the ABC no matter what way they want to spin it.”

MIKE:

And he claimed the national broadcaster had been forced to go into mediation because of flaws in its defence, which he said were revealed in the case involving Chrysanthou.

Archival tape -- Christian Porter:

“The ABC has determined not to defend the matter. They have been forced by these proceedings to explicitly state that the accusations that were contained in their article could not be proved to either a civil or criminal standard…”

MIKE:

He said that his view was that there was, quote, incontrovertible evidence that someone was coached.

Archival tape -- Christian Porter:

“My view is that there being incontrovertible evidence in a court. That someone was coached by Louise Milligan, to destroy important communications.”

MIKE:

My view is, he said that's what got the ABC forced them to ask us into mediation. That's what he said.

Archival tape -- Christian Porter:

“My view is that that shook them.”

RUBY:

And what did the ABC say about that?

MIKE:

Well well, first thing to say is that he didn't mention Dyer, but it was obvious that it was Dyer who was talking about - she subsequently identified herself and at the ABC identified her as well.

The claim related to Dyer, having told the court that she had deleted some signal messages sent between herself and Milligan. But this doesn't seem to have been terribly relevant. And the ABC responded with a statement saying that the parties had begun discussions about going into mediation before the Dyer vs Chrysanthou case even began. So to quote them, it is simply incorrect to suggest that evidence in that case led to the ABC seeking mediation.

Furthermore, the ABC said it categorically rejected the claim that Louise Milligan had coached Jo Dyer. They said the suggestion was not only an insult to Ms Milligan but also to Ms Dyer’s intelligence and integrity. So, you know, that was a pretty strong rebuttal of what Porter had had to say.

Archival tape -- Jo Dyer:

“I just don't understand, I don't even understand the political and PR strategy in what he's doing. Let alone any legal strategy…”

MIKE:

I spoke to Dyer after all of this…

Archival tape -- Jo Dyer:

“I’ve just come out of one, what was very stressful legal stoush. I’m not in a hurry to go back into another, but nor am I prepared to let the record stand uncorrected.”

MIKE:

And she is now threatening herself to sue Porter for defamation over both the coaching claim and an earlier media statement that was released by Porter's solicitors back on May 12.

Archival tape -- Jo Dyer:

“I’m not going to put up with him spinning things in a way which reflects badly upon me or my friends, and certainly not my dear, dead friend Kate, which is really what this is all about.”

RUBY:

Right. So does that mean that Christian Porter could now be facing another possible trial, this time as the defendant?

MIKE:

Yes, it does. It's not clear yet whether Dyer will proceed to sue. Possibly if Porter and his lawyers make an apology and a retraction, she mightn't, she mightn't go them. But let's face it, she's a very steely woman. I mean, taking the case against Chrysanthou, put her potentially in line for some very large costs, had she lost, she won, but nonetheless, she took a big, big risk there.

Archival tape -- Jo Dyer:

“There were moments throughout the last week, when I looked at the array of lawyers who were sitting in that court and I, you know, my heart did turn to ice to think that, Wow, could be me picking up the bill, it's lucky that that didn't happen.”

MIKE:

So there is an ongoing threat of defamation action by Dyer, but that's not the only problem facing Porter. Another potential crisis relates to the agreement that was struck between his lawyers and the ABC in mediation. And that relates to 27 pages of particulars submitted by the ABC in its defence.

RUBY:

Can you tell me more about that?

MIKE:

Well, obviously, they go to what the original complainant had to say, but also potentially to what other potential witnesses in the case might have to say. And they're obviously pretty explosive because Justice Jayne Jagot, the judge in the case, imposed a temporary non-public order on that material during the trial. But under the deal struck in mediation, Porter's people and the ABC agreed the media should be, quote, permanently removed from the court file, i.e., destroyed never to come to the light of day. But as Jagot reminded them, it wasn't their place to decide what material would be disclosed or not disclosed on the court file. They would have to persuade her to order its removal.

And I have to say that her tone of voice and her choice of words suggested that she was by no means persuaded yet.

Further complicating the picture, Australia's two biggest media companies, Nine and News Corp, are seeking to intervene, to get access to the redacted material - to have it made public. The ABC has told the court it's not interested in fighting the issue, which leaves the burden for this case, too, including all the costs, solely on Porter.

RUBY:

Hmm. So this doesn't really seem like the end of the issue, Mike. Porter and his supporters, they were framing this defamation case as a sort of enquiry into the allegations against him. But given that the trial didn't go ahead and this evidence is 27 pages as well as any other potential evidence wasn't heard, does it seem likely that we will now get some other form of enquiry?

MIKE:

Well, you're quite right. I mean, the fact that the court process ended in this way means that the allegations themselves have not been examined. And so there's now a renewed push for an independent enquiry into Porter's fitness to serve as a minister.

The Greens Senate leader, Larissa Waters announced last week that she would introduce a bill for a commission of enquiry to be presided over by a former judge appointed by the solicitor general. And she said this was necessary because Porter's abandonment of the defamation case, quote, leaves serious allegations against him unexamined, which is perfectly true.

All of this really makes you wonder whether after three months of legal wrangling and untold legal fees, what exactly has Porter achieved?

He got one paragraph at the end of an online story. He lost his role as Attorney General. And depending on what Justice Jagot decides and whether Jo Dyer sues and what the political process unearths, he may actually have succeeded in making things worse for himself, the only certainty here and as as you say, is that it's not over yet, and there could be many more twists and turns to come.

RUBY:

Mike, thank you so much for your time.

MIKE:

Thank you very much.

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RUBY:

Also in the news,

Victoria reported 11 Covid-19 cases yesterday, only nine of which were new. All cases were linked to existing clusters, and three of them were children. There are currently 81 active cases in the state.

And in NSW, the defamation case launched by former SAS soldier Ben Roberts-Smith against the Nine Newspapers had its first day of hearings. Roberts-Smith says he was defamed by articles that alleged he committed six murders in Afghanistan, that he bullied other soldiers, and that he committed domestic violence. His barrister said the claims were motivated by cowardice and jealousy, and that they justified, quote, “the largest award of aggravated damages ever in this country”.

I’m Ruby Jones, this is 7am, see you tomorrow.

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