Christian Porter’s defamation case against the ABC has effectively stalled while a judge decides whether his high-profile barrister has a conflict of interest in the case.
Though the former attorney general’s high-stakes case against the ABC and journalist Louise Milligan is still months from going to trial, an intervention from Jo Dyer, a friend of the woman who accused Porter of rape – an allegation he strenuously denies – led Justice Jayne Jagot to make an order on Friday effectively pausing the case.
Dyer is attempting to stop Sue Chrysanthou SC acting for Porter over what she says is a conflict of interest.
Dyer, a debater with the complainant in the late 1980s, appeared in a Four Corners episode in November in which she accused Porter of displaying “an assuredness that’s perhaps born of privilege”.
She has claimed she sought advice from Chrysanthou after an article in the Australian newspaper described the program as “a poorly executed political hatchet job”, and that the Sydney defamation specialist had reviewed a legal letter sent on her behalf.
The application – which has been made separately – turned an otherwise procedural hearing in the federal court on Friday into a fiery encounter which saw Jagot effectively put the case on hold for a fortnight.
She had earlier suggested Chrysanthou may need to be “quarantined” and “isolated” from the case until the matter was decided, saying it would be necessary “for the integrity of these proceedings in term of the proper administration of justice”.
The case required a short adjournment in which Chrysanthou was relegated to the public gallery and Porter’s other high-profile silk, Bret Walker, SC, was fetched.
When he arrived, he claimed isolating Chrysanthou would set a “dreadful precedent” and do “irreparable harm”.
Walker said the idea of isolating a counsel would be to the “disadvantage or detriment” of Porter, despite the court not knowing whether the application by Dyer was “valid”.
“We’re not fungibles, in other words choice of counsel is not a lottery,” he said.
“People choose counsel for reasons, [it is] a respected liberty.”
Former commonwealth solicitor general Justin Gleeson, SC, who is representing the ABC in the case, said that if a lawyer had taken on a conflicting brief “consciously or otherwise” and remembered elements of the case it could lead to an “infection of the material”.
In the end, Jagot decided not to rule on the issue and instead delayed the hearings until 26 May when the Dyer matter is due to conclude.
“In some ways the eggs already scrambled, I guess,” she said.
“My view is the risk on my mind when I came into court … is that we shouldn’t be adding more eggs to the bowl.”
Dyer’s lawyers are seeking an order restraining her from acting in the case on the basis it is “necessary to prevent prejudice to the proper administration of justice, and to preserve confidentiality and legal professional privilege”.
Lawyers for both Porter and Chrysanthou have argued the barrister has no substantive memory of her dealings with Dyer.