Former attorney general Christian Porter has lost his appeal against a federal court decision which blocked his barrister from acting in a now-abandoned defamation case against the ABC.
In a decision likely to cost Porter hundreds of thousands of dollars in legal costs, the full bench of the federal court ruled on Thursday that Justice Tom Thawley was right to bar high-profile barrister Sue Chrysanthou SC from acting in the case against the ABC.
Thawley ruled in May last year that Chrysanthou could not act for the former attorney general because she held confidential information that was relevant to the case and could present a “danger of misuse”. Days later Porter discontinued his case against the national broadcaster.
The original case to bar Chrysanthou was brought by Jo Dyer, a friend of the woman who accused Porter of raping her 30 years ago, which Porter strongly denies.
Dyer alleged that during a meeting between the two women in November 2020 – which related to a separate matter – the lawyer was given “confidential information” about Porter’s defamation case against the ABC.
In January she was awarded more than $400,000 in costs over the case.
Porter launched an appeal to the full bench of the federal court disputing the ruling, arguing, among other things, that the barrister was not in possession of confidential information.
During the appeal his barrister, Bret Walker SC, argued the case had been brought by Dyer because of her animosity towards the former attorney general.
She “wishes him ill”, Walker said of Dyer’s attitude toward Porter during a hearing in April, arguing information given to Chrysanthou was not substantially confidential.
He argued that it would not have been possible for Chrysanthou to turn down the brief on the basis that it would have been “awkward”.
“One looks in vain in the rules for any out for counsel that it would be embarrassing to have to take a brief,” he said at the time.
But the court disagreed. On Thursday, Justice Anthony Besanko handed down the ruling during a brief hearing in the federal court, saying all three justices who heard the case had agreed to dismiss the majority of the appeal.
In their judgment the justices agreed with Thawley’s conclusion that it was “improbable” the confidential information at the heart of the case was not discussed during the meeting.
“Ms Chrysanthou’s denials that she was told about this topic during the conference were taken not as a pointer to the witness being untruthful, but as a matter … reflecting a lack of accurate recollection,” they said in the judgment.
“This reasoning not only involved no error, but was compelling.”
While neither Thawley or the appeals judges, questioned Chrysanthou’s evidence that she did not recall receiving confidential information, the full bench said there was still a risk of misuse of the information.
“It was open to the primary judge to draw the conclusion, given the nature of the confidential information, that one cannot exclude the real risk that this confidential information, either consciously or subconsciously, may inform actions taken in the performance of the brief to act for Mr Porter,” the justices said.
“It is no answer that Ms Chrysanthou had forgotten things: one cannot exclude the possibility that recollection can be triggered or of subconscious derivative use.”
In a statement after the decision was handed down, Dyer, who ran unsuccessfully for federal parliament in May, thanked her lawyers and paid tribute to the woman at the centre of the original allegations made about Porter.
“It has been two years since Kate’s tragic death,” she said.
“With this litigation and Mr Porter’s political career now over, it is our fervent wish that Kate can be remembered neither for what was alleged to have been done to her, nor the trauma that flowed from it, but for the brilliant, passionate, curious and creative daughter, sister, partner and friend that she was.”
Porter left federal parliament at the May election, and has since been working as a barrister himself. He is acting for the underworld figure Mick Gatto in a bid for a high court appeal in his defamation case against the ABC.