“The principle of open justice is fundamental but not absolute”,Justice Jagot said,and the order was necessary “to prevent prejudice to the proper administration of justice”.
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Justice Jagot noted the ABC and journalist Louise Milligan had consented to the making of the order and “an important function of a court is ... to facilitate the settlement of disputes by parties on terms agreed between the parties”.
“For the Court to refuse to make ...[the order],in these circumstances,would be to undermine the lawful contractual bargain which the parties struck to compromise all of their claims,” Justice Jagot said.
She said the settlement meant parts of the ABC’s defence would “remain allegations which will never be the subject of judicial determination”.
In tweets published after the judgment,Milligan posted screenshots of the blacked-out redacted pages and said “Justice Jagot has decided the ABC’s redacted Porter defence will not be made available to the public and will be removed from the court file”.
“Thank you to all of our witnesses,who wanted to be heard,” she said.
Justice Jagot said that if she had not made the order she would have been “re-writing” the contract between Mr Porter,the ABC and Milligan.
In his statement of claim,Mr Porter had alleged an online article by Milligan,published by the ABC in February,defamed him in a number of ways,including by suggesting he “brutally raped a 16-year-old girl in 1988”,when he was 17,and that this contributed to her taking her own life last year,after she told NSW Police that she did not wish to pursue her complaint. He strenuously denies the claims.
In a statement in March,NSW Police said there was “insufficient admissible evidence to proceed” with an investigation in the matter.
Mr Porter had alleged the article also suggested there were “reasonable grounds” for suspecting him of the crime,and for suspecting that the alleged crime contributed to the woman taking her own life.
In its written defence,10 pages of which are publicly available,the ABC said the article did not convey any of the defamatory claims alleged by Mr Porter and the article was not “of and concerning” him,because he was not named.
But the ABC also said it could prove it was true to say there were “reasonable grounds for suspecting” Mr Porter of the alleged crime,and for suspecting that it contributed to the woman taking her own life.
The broadcaster expected to call at least 15 witnesses,the court has previously heard. Particulars set out in support of its defence were suppressed.
Justice Jagotmade an order earlier this week to allow the South Australian Coroner’s Court to access the ABC’s full defence as it continues its investigation into the death of the woman who accused Mr Porter of rape.
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