ABC not a model litigant in Andrew Laming defamation

Chris Merritt                 21 October 2021

Published in the Australian Newspaper

When agencies of the federal government are sued, and they know they are in the wrong, they are supposed to concede promptly to ensure taxpayers’ money is not wasted defending the indefensible.

This is one of the key requirements of the model litigant rules that are outlined in the government’s legal services directions to the public sector. But when it comes to the ABC, these rules are optional.

This gives the national broadcaster an enormous advantage when confronted by defamation claims. It can choose on a case-by-case basis whether to spend taxpayers’ money defending cases it knows it cannot win.

Sometimes the ABC volunteers to abide by the rules, as it did when former Attorney-General Christian Porter was pursuing the national broadcaster over an article by reporter Louise Milligan.

Porter’s lawyers filed particulars with the Federal Court on April 1 that say: “We also understand that it is agreed between the parties that the ABC is subject to the Legal Services Direction 2017 in so far as it is required to adhere to Appendix B, being the obligations of model litigants.”

But the ABC is also free to ignore those rules.

This has been made clear in a letter to the Rule of Law Institute from the organisation that administers the rules.

That letter, dated September 24, is from Elle Fittler, the acting principal legal officer of the Office of Legal Services Coordination within the Attorney-General’s Department. It says:

“The ABC is a corporate commonwealth entity that is independent from the government and exempt from government policy orders including the directions. The directions, including the model litigant obligation, therefore do not apply to the ABC.”

That needs to change.

Had the ABC been required to adhere to the model litigant rules in all circumstances it might have conducted itself a little differently in the recent defamation disaster involving Milligan.

This is the case in which the ABC chose to spend $200,000 of taxpayers’ money on legal and settlement costs when Liberal MP Andrew Laming sued Milligan in her private capacity.

Milligan was always in a hopeless position and could have settled with minimal costs had she apologised promptly, like others in the media, when Laming pointed out their error.

But the ABC, which was not a party to the Laming case, decided to pay Milligan’s legal bills which kept the case alive. Until this week this appeared to be nothing more than inexplicable favouritism.

But this affair has now been examined by the Australian National Audit Office and a more troubling aspect has emerged.

The Audit Office has revealed that ABC managing director David Anderson was involved in talks about backing Milligan that concerned the fact that Laming was represented by the same legal team that was representing Porter.

That team was solicitor Rebekah Giles and defamation silk Sue Chrysanthou SC.

Auditor-general Grant Hehir did not refer to Porter’s case by name. But at the time of Anderson’s discussions, the Porter case was the only matter Giles and Chrysanthou were running against the ABC.

Hehir writes that the ABC believed the fact that the same lawyers were running both cases was among the factors that “had a potential impact on the ABC’s ability to reach an optimum legal and financial outcome”.

The Audit Office’s report is silent about whether this was a reference to an optimum outcome in the Laming litigation or the Porter case.

But the ABC had no exposure in the Laming case. Its only legal and financial exposure was in the Porter case.

This suggests that the ABC discussed involving itself in the Laming matter not out of favouritism for Milligan, but to achieve a collateral benefit for itself in the Porter case.

Anderson’s discussions about financing Milligan in the Laming case concerned “the potential legal options available to the ABC in both proceedings”, according to the Audit Office report.

They also covered the “confluence” of the two cases, the risk of being roped into the Laming case and the fact that “the ABC would benefit from engagement with the proceedings brought by Dr Laming and have input into its resolution”.

The nature of that benefit to the ABC and the link to the Porter litigation needs to be explored when Anderson next appears before a Senate estimates hearing.

Anderson might also be asked whether he needs to clarify what he told an estimates hearing on March 23 when questioned by Liberal senator Eric Abetz about whether the ABC was covered by the model litigant rules.

Anderson asserted that the ABC was bound by those rules – which is at odds with the letter from the Office of Legal Services Coordination which administers the rules.

Abetz: Do you consider yourself to be bound by the Commonwealth legal services directions in relation to being a model litigant?

Anderson: Yes.

Abetz: You do?

Anderson: Yes.

Abetz: So you wouldn’t be relying on any technical defences or any other delaying tactics in any court proceedings in which you might be involved?

Anderson: Senator, we will approach these court proceedings in good faith. We’ll of course defend ourselves. I don’t …

Abetz: I’m not talking about this court proceeding. I have been very studiously avoiding mentioning any proceeding. This is all as a matter of principle as to the normal course of business.

Anderson: In the normal course, I have to go on a case-by-case basis as to how the ABC has conducted itself.

Abetz: You are bound by the model litigant rules?

Anderson: We are. I have not seen evidence to suggest otherwise.