The judge in Christian Porter’s now-defunct defamation action against the ABC has questioned whether the two parties can agree to destroy documents contained in the broadcaster’s still-redacted defence, as a number of news organisations seek access to the confidential file.
The former attorney general on Monday dropped his high-stakes defamation case against the ABC, holding a press conference in which he sought to claim he had forced the broadcaster to back down, despite not securing an apology or retraction.
But at a federal court hearing on Tuesday, Justice Jayne Jagot questioned part of the out-of-court deal struck by the two parties.
The agreement states that the ABC’s defence – now subject to an interim suppression order – would be “permanently removed from the court file”, which would potentially prevent any challenge to its confidentiality.
But on Tuesday Jagot said she was not convinced that it was up to Porter and the ABC to make that decision.
“You’ve filed orders in a court, it doesn’t then become a matter for you about what is to be disclosed or not disclosed,” she said in court.
Calling it “a fundamental issue about the integrity of the court file”, Jagot said the parties would need to convince her “why a court would allow the removal of a document from a court file”.
“I want to keep the costs as low as possible but this is an unavoidable issue if you want to press [the consent order],” she said.
While lawyers for the ABC said they took a neutral position on the issue, Porter’s barrister, Barry Dean, said the former attorney general wanted the document to be removed from the file. “Our position is it is a consent order between the parties,” he said.
“That’s not the point,” Jagot responded.
Lawyers for both Nine and News Corp are seeking to intervene to make the document public. On Tuesday Jagot said a hearing to decide that matter would take place later this month or early in July.
In the meantime, it means the deal between Porter and the ABC has not been formally ended, raising the possibility hostilities could resume if the settlement were to fall apart.
The issue raised its head on Monday when the journalist who wrote the story at the centre of the case, Louise Milligan, tweeted that she and the ABC remained “absolutely committed” to the 27 redacted pages of its court defence “being in the public domain”.
That prompted an angry riposte from Porter’s lawyer, Rebekah Giles, who said it was “astonishing” the ABC and Milligan had “seen fit to publish statements inconsistent with the settlement that they themselves personally agreed to”.
Far from ending hostilities between the parties, the deal to drop the case has sparked a fierce war of words between Porter and the ABC and Milligan.
The ABC has doubled down on its defence of the Four Corners article, with the public broadcaster stating it does not regret its reporting and stands by the story.
After the ABC agreed to add an editor’s note on its story saying it “regretted” that some readers had “misinterpreted” the article “as an accusation of guilt against Mr Porter”, the former attorney general insisted the public broadcaster had been forced into a “humiliating backdown” and had admitted to regretting the “sensationalist” article.
But the ABC hit back, saying it “has not said that it regrets the article” and “stands by the importance of the article”.
“The article was not ‘sensationalist’,” an ABC spokesperson said in a statement. “It was an accurate and factual report on a letter that had been sent to the prime minister and two other senior politicians.”
The statement then linked to the 26 February Four Corners article, noting that it “remains online without any amendments”.
On Twitter, Milligan also took a number of shots at Porter, describing his press conference as “utterly misleading”.
The parties have also engaged in a slanging match over what money was paid to Porter. When the ABC announced Porter had dropped his case, the Four Corners executive producer, Sally Neighbour, tweeted that “no money was paid” by the broadcaster. She quickly deleted that message, replacing it with “no damages were paid”.
Porter leapt on that during his press conference, stating Neighbour had “lied”.
“The ABC has determined not to defend the matter, they have been forced by these proceedings to explicitly state that the accusations which were contained in the article could not be proved to either a civil or a criminal standard,” Porter said.
But the ABC said in its new statement that the “only costs paid by the ABC, apart from its own, were mediation and related costs”.
A schedule of the consent orders seen by Guardian Australia shows no costs orders were made on the case.
“Four Corners EP Sally Neighbour did not ‘lie’ when she tweeted that ‘No money was paid’,” the ABC spokesperson said in a statement.
“Ms Neighbour meant that no money was paid to Mr Porter, which is correct. Ms Neighbour quickly clarified her tweet to say that ‘No damages were paid’.
The end of the defamation proceedings has immediately sparked renewed calls for an independent inquiry into the allegations made against Porter – which he strenuously denies.
Labor’s shadow attorney general, Mark Dreyfus, released a statement on Monday saying the prime minister, Scott Morrison, “no longer has an excuse to refuse to hold an independent inquiry into these allegations”.
“Only a truly independent inquiry, conducted at arm’s length from government according procedural fairness to Mr Porter and all witnesses appearing before it, will provide an opportunity for the serious allegations against Mr Porter to be tested,” he said. “Australians must be satisfied that Mr Porter is a fit and proper person to serve in federal cabinet.”
In the Coalition party room on Tuesday, the Nationals MP George Christensen spoke up in defence of Porter and urged the government to take action against the ABC.
Christensen claimed that the ABC had defamed Porter and then settled the case. He complained of systemic bias at the public broadcaster and urged the government to “strike while the iron is hot ... starting with the chairman”, a comment that Coalition members believe was targeted at the ABC chair, Ita Buttrose.
The contribution was met with applause. The prime minister, Scott Morrison, responded that these were “live issues”.
Christensen, an outspoken conservative, indicated in April that he will not seek re-election at the next election, blaming an “activist mainstream media” for the “broken” state of Australian politics.
After the meeting, the Nationals MP Barnaby Joyce backed Christensen’s comments, arguing that Coalition members were concerned the ABC “more and more sees its remit as reflecting one side of politics”.
“That isn’t a problem if it’s a privately funded organisation,” Joyce told Guardian Australia. “But taxpayers are evenly split between the left and right.
“We expect the ABC to genuinely display both sides of politics. As that’s not the case – they can either talk to an audience twice the size or expect half the funding.”
Porter announced in March that he would sue the public broadcaster and Milligan over an article alleging that an unnamed cabinet minister had been accused of rape in January 1988 in a dossier sent to Morrison and three other MPs.
Although Porter was not named in the article, he identified himself as its subject after a week of intense media scrutiny. Legal documents submitted during the case on his behalf argued that he was easily identifiable.