Barrister in Porter defamation fight may need to be ‘quarantined’ from case

A Federal Court judge has suggested a Sydney barrister may need to “isolate” herself from Christian Porter’s defamation case against the ABC, pending an application to stop her acting in the proceedings.

On Wednesday a friend of the woman who accused Mr Porter of rape filed an urgent application in the Federal Court, seeking an order to restrain defamation barrister Sue Chrysanthou, SC, from acting for Mr Porter on the basis that she previously advised Ms Dyer in a separate matter and a conflict of interest arose.

The application is set to be heard in the week beginning May 24.

Sue Chrysanthou, SC, is acting for Christian Porter in his defamation case against the ABC.Credit:AAP

Jo Dyer, who was a debater with the woman in the late 1980s, seeks an order restraining Ms Chrysanthou from acting in the case on the basis that “the order is necessary to prevent prejudice to the proper administration of justice, and to preserve confidentiality and legal professional privilege”.

Justice Jayne Jagot, who is presiding over the defamation proceedings but not the application to remove Ms Chrysanthou from the case, said at a preliminary hearing on Friday that it appeared to her that there were two options while that application was outstanding.

The first was the defamation proceedings could be stayed, or temporarily halted, pending the resolution of that issue. The second was Ms Chrysanthou could give an undertaking to have no involvement in the defamation proceedings “unless and until” the application to oust her was rejected.

She described the latter as the “quarantining opinion”.

Ms Chrysanthou said there were no temporary orders sought or made against her to stop her acting in the case before the application to oust her was resolved.

“That doesn’t really matter,” Justice Jagot said.

Sydney silk Bret Walker, SC, who is acting for Mr Porter with Ms Chrysanthou, appeared in court later on Friday as the court and the parties attempt to resolve the issue of Ms Chrysanthou’s current involvement in the case.

Mr Walker insisted “it would be the most dreadful precedent for Your Honour to set” to stay the proceedings or force Ms Chrysanthou to isolate herself from involvement in the matter until the application was resolved.

He said Justice Jagot did not have any information about “the merit of that application [to stop Ms Chrysanthou acting in the defamation case], prima facie or otherwise”.

Justice Jagot said she accepted that but would be acting “to protect the integrity of this proceeding” pending the resolution of the application.

Mr Walker said judges should not “dictate to parties” who could act for them, prompting a quick rejoinder from Justice Jagot.

“This has nothing to do with my view … about counsel. That’s completely irrelevant,” Justice Jagot said.

Appearing for Ms Dyer at an urgent hearing in the Federal Court in Sydney on Wednesday, Michael Hodge QC said Ms Chrysanthou was “in a lawyer-client relationship with Ms Dyer and there is the real and obvious possibility that the information disclosed in the course of that relationship will have relevance to Mr Porter’s proceedings”.

Mr Hodge said there was the possibility of misuse of confidential information, but also the “possibility of apprehension of the interference with the administration of justice” if Ms Chrysanthou continued to act for Mr Porter.

Appearing for Ms Chrysanthou, barrister Noel Hutley, SC, said his client “will give evidence that she has in effect no substantive recollection of what is said to have been reported to her” by Ms Dyer.

“That’s been the subject of correspondence between solicitors … My client’s position is she is a member of the bar. She is an officer of the court. She will do anything that the court thinks she ought to do.”

The former attorney-general, now the Minister for Industry, Science and Technology, is suing the ABC and Milligan over a February 26 online article about a rape allegation against a Cabinet minister. Mr Porter was not named but he alleges he was identifiable.

Mr Porter claims the article defamed him in a number of ways, including by suggesting he “brutally raped a 16-year-old girl in 1988”, when he was 17, and this contributed to her taking her own life last year, after she told NSW Police that she did not wish to pursue her complaint. Mr Porter strenuously denies the claims.

The ABC was represented in court on Friday by former Commonwealth solicitor-general Justin Gleeson, SC, who is leading the broadcaster’s team of lawyers defending the defamation case.

The hearing continues.

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