Christian Porter has paid high profile, and an even higher priced, barrister Bret Walker SC to lie, deceive and abuse processes and procedures in the Federal Court of Australia to protect the estimated $1 million that Porter received in secret donations to pay his legal bills to sue the ABC and journalist Louise Milligan for defamation.
Bret Walker SC didn’t fail to disappoint in court on Wednesday (20/4/22) and was on fire with his lies and deception but let’s quickly look at the background of the matter first before we look at Walker’s handiwork.
Christian Porter withdrew his defamation claim, which related to allegations he raped the now deceased Katharine Thornton in 1988, against the ABC and Louise Milligan and the ABC agreed to pay Porter $100,000 for mediation costs but that would still have left Porter with close to $500,000 of legal fees just for the defamation case.
But during the course of the defamation proceedings Jo Dyer, who was a friend of Katharine Thornton, took legal action against Christian Porter and his barrister Sue Chrysanthou SC seeking to have Ms Chrysanthou restrained from representing him. The reason for the application is that Jo Dyer had been advised by Sue Chrysanthou SC regarding an article in The Australian which Ms Dyer believed defamed her covering some of the same issues at Porters defamation case and that Jo Dyer might be called as witness for the ABC in the Porter defamation matter.
That would have meant that at one point Sue Chrysanthou SC was representing a key defence witness in Jo Dyer and been privy to confidential information and then a couple of months later in effect jumped ship to the other side by representing Mr Porter covering some of the same confidential information. Looking at all the facts Sue Chrysanthou SC should never have been anywhere near the Porter defamation case and that is what Justice Tom Thawley decided. (Click here to read the judgment) Jo Dyer succeeded and was awarded $430,000 in costs in January 2022.
With the defamation matter finalised in 2021 the Jo Dyer matter doesn’t matter except for Porter having to pay Jo Dyer’s costs of $430,000 plus his own costs which would be about the same plus the estimated $500,000 for his legal fees for the defamation matter. By appealing the Jo Dyer matter Christian Porter is hoping to save about $900,000 but it could backfire if he loses as he will be up for even more costs.
Sue Chrysanthou SC could also have appealed but she didn’t although she had a barrister in court today representing her interests and Ms Chrysanthou was also in court as she has a lot riding on it reputational wise as it is rare for courts to restrain a barrister from representing a client.
Today in court it became obvious from the start that Porter’s barrister Bret Walker SC has total contempt for the law. The hearing started with Walker being called out by Dyer’s barrister, Michael Hodge QC, for Walker serving and handing up new evidence/submissions on the day of the hearing which Walker called an “aide-memoire”. Even though Michael Hodge QC objected to the aide-memoire being tendered the judges allowed it with Bret Walker SC later claiming the aide-memoire was not new evidence or submissions.
The problem with anything Bret Walker SC says in court is that he was later caught out by me telling a straight out lie about what Justice Tom Thawley said in his judgment which was the judgment that was being appealed.
At one point one of the judges Justice Michael Lee, who was appointed by Attorney-General George Brandis and sworn in in April 2017, seemed to be coaching Bret Walker SC and asked him if one of his grounds of appeal was whether or not Jo Dyer might have been called as a witness in the Christian Porter matter.
“Yes”, Bret Walker SC said, and he went on to say there was no chance that Jo Dyer would have been called as a witness in the Porter / ABC defamation matter so there for there was no reason why Sue Chrysanthou SC could not have continued to represent Christian Porter. Bret Walker SC also went on to say, words to the effect, that the judge, Justice Thawley had also said in his judgment that it was highly unlikely that Jo Dyer would have been called as a witness.
I watched the hearing via video link and when Walker said what I wrote above in the last paragraph I could see Jo Dyer’s barrister Michael Hodge QC smile and have a chuckle. The judges then spoke about the paragraph in the judgment “105 and 106” so I wrote in down and checked and this is what it said in the judgment:
105 On the basis of matters as they presently stand, it is at least reasonably possible that Ms Dyer will be called as a witness in the proceedings between Mr Porter and the ABC and Ms Milligan.
And later in 105 “there is a real possibility that Ms Dyer will be called as a witness”
106 It is not necessary to the relief sought that I conclude that Ms Dyer will or might possibly be called as a witness in the defamation proceedings. In the particular circumstances of this case, Ms Chrysanthou’s conflict with her duty of confidentiality to Ms Dyer arises whether or not Ms Dyer is called as a witness or is likely to be called as a witness. (Click here to read the judgment)
So that is Bret Walker lying and deceiving the court when he said that Justice Thawley had also said in his judgment that it was highly unlikely that Jo Dyer would have been called as a witness. Was Walker doing it for people watching on video link who wouldn’t check or was he doing it because he was poorly prepared? Who knows, but Porter’s legal team were at best very sloppy in their preparation and performance and Bret Walker SC as the leader has to take ownership of that.
A number of times there was discussion about what the exact grounds of appeal were. It became clear that on several occasions that Porter’s legal team had appealed certain grounds in their submissions but had not written them as grounds of the appeal in their appeal application which doesn’t give the other party a chance to prepare properly. That is the cart before the horse type of scenario which is not allowed in court unless of course the judge is corrupt which in that case anything is allowed.
Watching on video link was a bit hard to hear at times because of reception etc but I think Porter’s lawyer might have also failed to apply for leave to appeal which if that is the case means they were not entitled to appeal anyhow but I am not 100% sure because as I said it was hard to hear at times.
Overall, Porter’s lawyer did a shocking job but that doesn’t mean they will lose because money talks. All this happened because Christian Porter was allowed to set up a dodgy “Blind trust” to raise money to pay his legal fees. The “blind trust” is not a “blind trust” and should be investigated as a financial scam which is what it is.
This matter might end up in the High Court of Australia, so I’ll keep an eye on it. The judges today reserved their decision which means it could be anytime from a month to a year or more before we have a decision.