Here and there –Porter v ABC and Milligan

The highpoint of the attack on the ABC as pleaded in the Statement of Claim is as follows.

The ABC and Milligan knew that Porter would be readily identifiable as the subject of the article and that he would ultimately be compelled to publicly respond.  They knew that the allegations by AB could never be proved in any civil or criminal proceeding and despite that they published the article to harm Porter and to ensure that he was publicly condemned and disgraced in the absence of any finding against him.  They were frustrated that they were unable to broadcast AB’s allegations in the November 4Corners as they intended (because they were indefensible) and thus disingenuously published the article without naming Porter in order to give effect to their intention to harm him.  Milligan engaged in a campaign against Porter in order to harm his reputation and have him removed as Attorney-General by her continued publications about him.  She has further continued to defame him in republishing assertions that AB should be believed and other allegations.  The ABC and Milligan published the article making serious allegations of criminal conduct about Porter without any warning to Porter and without any attempt to give him an opportunity to respond.  They selected portions of the dossier to quote in the article for the purpose of making AB’s allegations as credible as possible when there were other significant portions of the dossier which demonstrated that the allegations were not credible.  Milligan did not disclose her close friendship with a friend or friends of AB including persons named on the ABC.  Milligan acted with malice knowing of the impossibility of any finding of guilt or civil liability in the circumstances and believing that a public campaign designed to damage his reputation would be a more effective substitute against Porter in replacement of the process of the justice system.

The popular word for that process is lynching.  Another word is pogrom.  It is the sort of thing we associate with the grosser parts of the Murdoch press – as in their recent pogrom against the Premier of Victoria.

The allegations are made by counsel as good as you can get for this purpose, doubtless on the express instructions from the plaintiff, who happens to be the first Law Officer – and most probably with the knowledge of at least the Prime Minister.

It is curious that the press has not as far as I can see commented on this aspect of the case.  The word ‘libel’ then becomes a kind of coat-hanger for the real charge.  It is about as lethal a charge as you could make against a member of the press.  Against a commercial broadcaster, it could put its licence in play.  It is more deadly for the ABC because the attitude of the government to it is roughly equivalent to the attitude alleged against Louise Milligan to Porter.  It wants the ABC taken out.  It must think Christmas has come very early this year.

The pleading is unusual on two counts.  It is extremely well drawn.  And it is permissibly loaded with evidence because the plaintiff will rely on inferences to be drawn about states of mind from a chain of events.  Most direct allegations of events are on the record – there is no controversy.  There is more than enough to force the defendants into evidence.  (There may even be an application to split the case, but we can put that technicality to one side.  It’s about forty years since I did that.)  More importantly, discovery will produce truckloads of documents that will embarrass the ABC and Milligan – and sources – and urgers, like Malcolm Turnbull.  That embarrassment might drive the ABC to settle – especially if the embarrassment rises up the scale.

All litigation is a form of lottery that few can afford and none can predict.  That uncertainty is made worse here by politics at both ends.  But after fifty years of them, this is how I see libel actions in this country.  Australians treat the press like government.  They need it, but they don’t trust it.  They rely on both, but begrudge them their power.  If they – a jury or a judge – think that the press has behaved reasonably and that the plaintiff more or less deserved it, so be it.  But if they think that the press has gone in too hard, and that the plaintiff has not had a fair deal, they put the press down – with gusto and a very big bang.  I say that as a lawyer who I think still holds the record for copping the biggest libel verdict in the history of Victoria – while acting for the ABC – in a case that we thought we would win.

That is not a happy outlook for Aunty or Louise.

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