Former Attorney General Christian Porter has lost his appeal of a restraint against Defamation specialist Sue Chrysanthou SC representing him in his claim against the ABC.
Justice Thawley had ruled that there was a potential conflict of interest and the integrity of the judicial process and the due administration of justice required Ms Chrysanthou to be restrained. Furthermore, whilst Ms Chrysanthou had given evidence she did not recall any confidential information and that she no longer had emails received in connection with the meeting, Justice Thawley held that:
“However recollections are liable to being revived and there is nevertheless a risk of subconscious use of confidential information”
Porter subsequently settled his claim against the ABC.
The Full Court made the following observations:
18.We have considered the transcripts of the hearings on 17 and 18 June 2021 and the letter from the primary judge’s chambers carefully. The following matters are clear:
(1) The basis for the orders advanced by the first respondent was confidential communications and prejudice to the proper administration of justice, not legal professional privilege as such.
(2) The appellant accepted before the primary judge that insofar as material discloses confidential and privileged communications, that would ordinarily be a matter which provides a basis for a suppression order.
(3) The question the primary judge posed for himself was whether a reasonable person would draw the inference that the information in Exhibits 2, 3 and 6 (or any part of it) was information provided in confidence to the second respondent at the conference on 20 November 2020 with the result that the reasonable person would become aware of the confidential information disclosed at the conference by the disclosure of the exhibits (Transcript of proceedings on 18 June 2021 p 14, line 16). The letter from the primary judge’s chambers suggests a modification of this test to one of reasonably likely to result in disclosure. In our opinion, that less demanding test is nevertheless a sufficient basis for the making of a suppression order.
(4) The first respondent submitted that the reasonable person would draw the inference that the information in Exhibits 2, 3 and 6 was provided at the conference on 20 November 2020 because the exhibits were relevant to the issues in the proceeding — they had been discovered by the first respondent — and had been tendered by the appellant on the second day of the hearing, i.e., 25 May 2021, at which time they were made the subject of non-publication orders. Moreover, the issue of their possible disclosure was discussed in open Court at the hearings on 17 and 18 June 2021.
(5) The final step in the process of reasoning adopted by the primary judge was to link the information in Exhibits 2, 3 and 6 to one or more of the categories of confidential information identified by the primary judge.
The Full Court hence concluded that “in our opinion, it was open to the primary judge to conclude that the disclosure of the text messages was reasonably likely to result in the disclosure of confidential information”, and that “We see no reason to interfere with the primary judge’s conclusion that the second purpose of the conference was confidential information”.
The appeal essentially was a bid to overturn a $430k costs order awarded against Porter and Chrysanthou SC resulting from Justice Thawley’s decision. They will also have to pay the costs of the appeal.
