Former commonwealth attorney-general Christian Porter has lost his appeal over hundreds of thousands of dollars in legal costs and the removal of his barrister in a now-settled defamation case against the ABC.
Mr Porter appealed the disqualification of prominent silk Sue Chrysanthou SC and around $500,000 in potential costs after losing a legal battle against the friend of a woman who alleged he raped her in 1988.
Mr Porter has strenuously denied the rape allegations.
Jo Dyer — who brought the application to restrain Ms Chrysanthou from acting in the proceedings — consulted with Ms Chrysanthou about a potential defamation claim against News Limited for an article in The Australian in November 2020 and provided confidential information to the barrister, which was potentially relevant to Mr Porter's lawsuit against the ABC, Justice Tom Thawley found in May last year.
After a Federal Court justice ordered Christian Porter's lawyer to step down, Mr Porter dropped his lawsuit against the ABC. Source: AAP
After Justice Thawley ordered Ms Chrysanthou to step down, citing the potential for the misuse of confidential information, Mr Porter dropped his lawsuit against the ABC.
In his appeal, Mr Porter challenged the judge's findings that Ms Dyer had provided information which was in fact confidential to Ms Chrysanthou and that this could potentially be misused in the defamation lawsuit.
On Thursday, the Full Court of the Federal Court dismissed Mr Porter's appeal, finding that when meeting with Ms Dyer in November 2020, there was a chance the leading barrister may have received material outside of what Mr Porter could obtain through his case against the ABC.
Justice Michael Lee, supported by the other appeal judges, said that just because this information had been forgotten did not mean it could not be used in the defamation lawsuit.
"It is no answer that Ms Chrysanthou had forgotten things: one cannot exclude the possibility that recollection can be triggered or of subconscious derivative use," he wrote.
As well as creating the impression that Mr Porter could gain some sort of unfair advantage through his choice of barrister, there was also the chance that allowing him to retain his legal counsel could lead the public to have less faith in the judicial system, Justice Lee said.
A cross-appeal, filed by Ms Chrysanthou against legal costs ordered in the case, was also rejected by the Full Court.
Mr Porter appealed the disqualification of prominent silk Sue Chrysanthou SC and around $500,000 in potential costs. Source: AAP / Lukas Coch
Ms Dyer's barrister Michael Hodge QC said Justice Thawley's findings should hold because of the potential for the subconscious misuse of confidential information within the defamation proceedings.
Ms Chrysanthou, through legal counsel Anne Horvath SC, rejected claims she misunderstood her professional obligations or planned to deliberately misuse the court's processes.
On Thursday, Justice Lee found that the barrister had not been unethical in choosing to represent Porter.
"Although Ms Chrysanthou was mistaken in the judgement she formed, no finding was made by the primary judge that her view was not formed in good faith," he wrote.
