ABC faces tough fight in Christian Porter defamation case

Chris Merritt                 19 March 2021

Published in the Australian Newspaper

Right now, the penny must be dropping for Louise Milligan and the ABC about what is at stake in the defamation proceedings that have been launched by Attorney-General Christian Porter.

The big issue is not whether the national broadcaster will lose; that’s almost a given. It’s how badly it loses, how much material comes to light in court and whether the Federal Court will declare that the national broadcaster and one of its most famous journalists were motivated by malice.

Porter’s statement of claim has been drafted with the goal of proving that the ABC and Milligan were predominantly motivated by malice when they published a February 26 report that, according to Porter, contains the defamatory imputation that he raped a 16-year-old girl in 1988.

In defamation law, malice is present when an otherwise legitimate act is predominantly undertaken for a improper purpose.

And in this case, the improper purpose Porter aims to prove is one that has actually become fashionable among parts of the political class and the media: the sidelining of the justice system.

This is how the statement of claim, which was settled by Bret Walker SC, puts that accusation: “Milligan acted with malice knowing of the impossibility of any finding of guilt or civil liability in the circumstances and believing that a public campaign designed to damage his reputation would be a more effective substitute against Porter in replacement of the process of the justice system.”

Plenty of media organisations have been sued in the past for defaming politicians. But this case is about something more important than Christian Porter’s reputation.

It is literally about the rule of law — whether everyone’s rights and liabilities are governed by the requirements of the normal law and whether the ABC and Milligan tried to displace that system.

If that improper purpose is proven in court, two remedies will be needed — one for the damage inflicted on Porter’s reputation, but a much more significant remedy for what would be a proven malaise inside the national broadcaster.

The Federal Court would require solid proof before siding with Porter on this point. But if it does, those still lobbying for a special inquiry would be in a difficult position.

So how does Porter propose to satisfy the court that there is substance to his accusation?

If his legal team has followed normal practice, it would have rattled off an unwelcome letter to the ABC and Milligan soon after filing their statement of claim on Monday.

This letter would require them to preserve certain material in their possession so it can later be subject to the process of discovery.

That means Porter and his lawyers are almost certainly planning to take possession of Milligan’s emails, text messages, notebooks, interviews, unedited video footage and a range of other material — everything that is relevant to the statement of claim.

That will give them an insight into what was said during every electronic exchange between Milligan, her ABC associates and the people she was dealing with while preparing to publish the rape accusation.

This procedure is not unusual. But it can have significant consequences, which was apparent six years ago when former treasurer Joe Hockey sued Fairfax Media Publications, which then owned The Sydney Morning Herald.

In June 2015, the Federal Court made a finding of malice against Darren Goodsir, who was then editor-in-chief of that newspaper. Hockey’s legal team had required Fairfax to preserve, and later surrender, Goodsir’s emails and other internal documents that concerned their coverage of Hockey.

Goodsir left the Herald some years later and went on to hold senior roles elsewhere. He is now, according to his entry on LinkedIn, the executive director, communications and engagement, for the NSW Department of Education.

The judgment in the Hockey case, by Justice Richard White, gives an indication of the sort of material Porter’s lawyers will be looking for when they sift through Milligan’s emails, text messages and other documents.

White said the subject of the Herald’s coverage of Hockey was a matter that was appropriate to bring to the attention of readers. But he found that Goodsir’s animus towards Hockey, who had insisted on an apology over an earlier mistake, had not abated and the Herald had published material about Hockey “predominantly actuated by that improper purpose”.

If that approach in taken in Porter’s case, it would mean that the ABC and Milligan could be in trouble — without viable defences and facing an intense search for malice.

To add to their woes, a 2015 ruling from the NSW Court of Appeal in a case known as Fairfax v Pedavoli suggests Porter will be able to show he was identified as the subject of the rape allegation even though he was not named in the February 26 article.

For the ABC and Milligan, proving the truth of the published imputation is impossible as the woman at the heart of the affair had a history of mental health problems and took her own life after withdrawing a complaint to police.

They are unlikely to be able to show they conducted themselves reasonably while discussing government or political matters because, according the statement of claim, they gave Porter no opportunity to respond.

Even if they somehow managed to overcome that difficulty, malice negates that defence. It all depends on why they did it.

The process of discovery might also solve a riddle: one of the last acts of the woman at the heart of this affair was to withdraw her complaint. It might soon be clear why her friends chose to ignore that and promote this allegation.