Extract from The Guardian
As the attorney general takes on the ABC the stakes will be high, and the legal fees could be even higher, running into the millions of dollars.
Last modified on Sat 20 Mar 2021 06.01 AEDT
A cabinet minister sues the public broadcaster and one of its star journalists after an explosive story. Two legal teams that could cost millions of dollars are assembled for battle. And Sydney, arguably the defamation capital of the world, is chosen as the arena.
Perhaps it is little wonder that Charles Christian Porter v the ABC is already being dubbed the “defamation trial of the century”, despite the case being months away from any court hearings, let alone a trial.
On 26 February, the ABC published an article by Louise Milligan entitled “Scott Morrison, senators and AFP told of historical rape allegation against cabinet minister”.
The story did not name Porter, but five days after it was published, the attorney general denied the allegations in a tearful press conference. It was another 12 days – during which Porter was on leave – before it was announced he was suing the ABC.
Since Porter lodged his statement of claim in the federal court on Monday, details about each side’s legal teams have come to light.
Porter will be represented by top silk Bret Walker SC and Sydney defamation specialists Sue Chrysanthou SC and Rebekah Giles.
Walker and Gleeson are considered among the preeminent silks in Australia.
Walker was Australia’s first independent national security legislation monitor, appointed by the Gillard government to review national security and counter-terrorism laws.
Last year, the NSW government appointed him to lead an inquiry into the Ruby Princess saga, and he acted for Cardinal George Pell in his successful appeal to the high court.
One of his recent defamation-related engagements was another success: Walker acted for Geoffrey Rush in an appeal brought by the Daily Telegraph over the decision to award him $2.9m damages.
Chrysanthou previously represented another federal Liberal MP, Dave Sharma, in a defamation matter last year, and is currently acting in a defamation action brought by fellow Sydney lawyer Chris Murphy.
Chrysanthou and Giles worked together with Walker on the Rush case.
The duo have also run recent defamation cases together on behalf of the Greens senator Sarah Hanson-Young against former senator David Leyonhjelm, venture capitalist Elaine Stead against the Australian Financial Review and Joe Aston, and a Sydney plastic surgeon, all of which were either successful at trial or settled beforehand.
But another recent defamation case involving Chrysanthou and Giles failed: a claim made by two doctors from the Chelmsford psychiatric hospital against journalist Steve Cannane and the publisher of his book on Scientology.
The case also happened to be before Jagot and marked the first time a journalist successfully used qualified privilege in an Australian defamation case since the laws were introduced in 2006.
The fact that case was even allowed to go to trial was considered a troubling reminder of the state of Australia’s defamation laws – which Porter himself has acknowledged should be overhauled.
“People with deep pockets and a sense of grievance can take you all the way for years, and it can cost so much money that a lot of media organisations would just drop it at the first hurdle,” Cannane said after the verdict was handed down last November.
Gleeson weighed into the Porter case earlier this month when he urged Scott Morrison to seek the advice of the current solicitor general on whether Porter remained a fit and proper person to be attorney general. As a former solicitor general himself, it was an argument he was uniquely qualified to make.
He has had less involvement in defamation cases than Walker, but as a constitutional law expert will be well-placed to argue points that could form a qualified privilege defence, should the ABC decide to use it.
Enbom, one of the other two lawyers in the ABC’s team, has acted in some of the most prominent legal matters in recent Victorian history: for Victoria police in the royal commission into the management of police informants, and for the AFL in anti-doping matters involving Essendon players.
She has represented media outlets defending defamation claims but also represented Rebel Wilson in her successful $4.7m defamation action against publisher Bauer (the damages amount was reduced on appeal).
Amato has previously appeared in defamation cases involving politicians, including on behalf of BuzzFeed when it was sued by the former Labor MP Emma Husar, and for the former federal Labor leader Mark Latham when he was sued by journalist Osman Faruqi.
So what will this all cost? Lawyers’ fees are closely guarded, and the case could, in theory at least, settle within days, or alternatively run for years.
But if it goes to trial, the combined legal fees would be expected to climb well into the millions of dollars. How many millions depends on the length of the trial and how long it takes to get there. And that is before any appeals are considered.
Lawyers on both sides have been involved in recent defamation trials where the fees reached seven figures.
When Chrysanthou and Giles acted for Stead in her federal court matter, the fees reached $1.1m for the venture capitalist alone and more than $2m overall when including the costs of the AFR.
In the Wilson matter, which involved Enbom, the actor racked up $1.5m in costs – and that was before the case was appealed to higher courts, incurring more fees.
Walker alone can command fees above $20,000 a day, with Gleeson expected to charge closer to $15,000, Guardian Australia understands.
Porter is due to file more information about his case, including fleshing out a claim for aggravated damages, on Tuesday. The ABC must file its defence by 4 May. Porter will have a week to respond.
And then a case management conference – the first time the two legal teams will face off and perhaps the first court hearing of many – is expected to be held on 14 May.
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