Christian Porter has failed to prevent a detailed account of a meeting being admitted into evidence in a case about whether his barrister in his defamation case against the ABC must stop acting for him.
Mr Porter's lawyer argued that his defamation case would go "off the rails" if the evidence from a Macquarie Group executive was received.
Federal Court judge Tom Thawley today determined the evidence was "central" to the case about whether defamation specialist Sue Chrysanthou SC has a conflict of interest.
There is a public interest in Mr Porter's case against the ABC and journalist Louise Milligan being seen to be conducted in the proper way, he ruled on Monday afternoon.
Without the affidavit from Mr Hooke, the court would be forced to decide if Ms Chrysanthou received confidential information from Jo Dyer, who will likely be a witness for the ABC, without knowing exactly what was said in the November meeting. Ms Dyer says Ms Chrysanthou could use the information against her or to help the now-industry, science and technology minister in the case, which is likely to be heard later this year.
Ms Dyer's lawyer Michael Hodge QC told the Federal Court on Monday it was a "straightforward case" of a conflict of interest. But Mr Porter's silk Christopher Withers SC said it was a "storm in a teacup" because Ms Chrysanthou didn't have any relevant confidential information.
The November 20 meeting between Ms Dyer, Macquarie Group senior managing director James Hooke, Ms Chrysanthou and other lawyers is at the heart of the dispute. They met to discuss a possible defamation claim over an article in The Australian which was critical of Ms Dyer's appearance in a Four Corners program.
Ms Dyer and Mr Hooke were both friends of "Kate", the woman whose rape allegations against Mr Porter are at the centre of the defamation proceedings. Kate took her own life in 2020.
The former attorney-general is suing the ABC over an article which published historical rape allegations.
Barrister Sue Chrysanthou arriving at at NSW Federal Court, in Sydney, on 14 May 2021. Source: AAP
Ms Dyer's lawyers filed an affidavit from Mr Hooke on Friday evening that describes what he remembers being said in the meeting. Mr Withers argued the evidence would "derail" the case by weeks and push back Mr Porter's attempt to vindicate his reputation in the defamation case. A major battle in the defamation case - over whether the ABC's defence must be partially struck out - is scheduled to start next Tuesday.
Ms Chrysanthou had only a "short discussion" with Ms Dyer and gave her "very limited advice" about the article in The Australian, Mr Withers said. But she was in email conversation with Ms Dyer and others about the Australian article as late as March 4. The court heard on Monday that multiple lawyers indicated Ms Chrysanthou had a conflict of interest and should not act for Mr Porter, before the dispute spilled over into public view.
Her friend and colleague, defamation barrister Matthew Richardson, told her in person and then in an email that she should return the brief, Mr Hodge said.
Leading silk Nick Owens SC wrote an opinion concluding that Ms Chrysanthou had a conflict of interest as well, Mr Hodge said. Ms Dyer raised her objection to Ms Chrysanthou representing Mr Porter on the same day he lodged his statement of claim to start the case in March. Ms Chrysanthou is represented in the dispute but is not making submissions.
