The only thing that prevented Christian Porter’s barrister Sue Chrysanthou from being humiliated in court on Friday (7/5/1) is the fact that she has no shame. In filing a Notice of Motion to have suppression orders put on a large part of the ABC’s defence against Porter’s defamation claim Sue Chrysanthou had to ignore a precedent in the Geoffrey Rush case where she was also one of the applicant’s barristers and where the judge refused suppression orders in almost identical circumstances.
This was not lost on the ABC’s barrister Renee Enbom QC, who was on video link from Melbourne, and she proceeded to use the Rush precedent to argue against the interim suppression orders. But Justice Jayne Jagot said the directions hearing was only to set a date for a hearing of Porter’s Notice of Motion to strike our part of the ABC’s defence and then have suppression orders put on the part struck out. Justice Jagot put an interim suppression order on a large part of the ABC’s defence and a redacted version was published on the court’s website but based on the Rush precedent even if it is struck out there will be no suppression order put on it.
I live Tweeted the hearing with one Tweet saying:
“Christian Porter’s barrister wants the earliest possible hearing date because Porter has had to stand aside as Attorney-General which implies he will be reinstated as Attorney-General if he wins the defamation matter”
I wrote an article on the 5th of May titled “Alleged rapist Christian Porter’s defamation case against the ABC is in crisis as his lawyers try to hide evidence so the public do not know the truth” and at the end of the article I said:
“If the ABC hold the line and refuse to have any of their defence suppressed, then Porter’s last chance would be to ask Justice Jayne Jagot to put a suppression order on it which would scandalise the court as there is no justification to do so” (Click here to read more) And that is exactly what happened and why there was a court hearing on Friday which I watched via the live internet broadcast.
While Porter’s defamation claim is against the ABC and journalist Louise Milligan, his evidence refers to and names many social media users, independent journalists and even this website (Click here to read more). So social media users and independent journalists have a stake in the outcome of this court case and even more so considering that one of the key defences that the ABC are using is common law qualified privilege as per the High Court of Australia 1997 precedent Lange v ABC.
The bottom line to the common law qualified privilege defence is that they are arguing it is political communication protected by the implied freedom of political communication in the Australian Constitution and if the ABC succeeds in that defence, it will have a huge on flow effect helping protect other journalists as well as social media users from frivolous defamation claims by politicians.
Scott Morrison gives the green light to attack social media users
Scott Morrison recently gave a speech which was reported as “Prime Minister Scott Morrison has suggested social media could be used by “the evil one” to undermine Australian society” (Click here to read more) which at least to some degree has given the green light for other politicians to attack social media users, if not sue them.
Add Porter’s case to Morrison’s comment and then add federal MP Peter Dutton suing Twitter user Shane Bazzi (Click here to read more) and it is becoming obvious suing journalists and social media users is starting to become commonplace for Liberal/National MP’s to try and hide their corrupt conduct. And NSW Deputy Premier John Barilaro has also said he will be suing “YouTuber and political satirist Jordan Shanks, better known as friendlyjordies”. (Click here to read more)
For reasons that are largely outlined above, I tried to intervene in the hearing on Friday, which the media can do, to argue against the suppression orders. I emailed the court Thursday night but only received a response after the hearing on Friday telling me I would need to file a Notice of Motion and affidavit to intervene. At the hearing on Friday, there was already one barrister, Dauid Sibtain, intervening on behalf of News Corp and Nine Entertainment but he was in the courtroom which might explain how he managed to intervene. But News Corp and Nine are both aligned to the Liberal Party which might impact on how hard they try to have the suppression orders lifted.
I am still considering filing the Notice of Motion to intervene as I think with the changing media landscape it is time independent journalists do intervene when appropriate to argue against suppression orders. I have had some good wins lifting suppression orders in my own matters including in the NSW Supreme Court and Court of Appeal, so I know that area of the law well as it is not overly complex. Christian Porter needs an “exceptional circumstance” to justify the suppression orders which he does not have nor did his barrister Sue Chrysanthou claim Porter had one when in court on Friday.
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