Key evidence used to deprive former attorney-general Christian Porter of his lawyer in his defamation case against the ABC was improper and odd, the Federal Court has heard.
Mr Porter has now retired from federal politics after a tumultuous final two years, during which he was accused of an alleged historical rape.
That accusation, which appeared in an ABC story, was against an unnamed cabinet minister, but Mr Porter later revealed he was the minister.
He emphatically denied any wrongdoing.
Before Mr Porter's defamation action against the ABC had begun, his lawyer Sue Chrysanthou was restrained from acting for him because of a perceived conflict of interest.
But they are now challenging that earlier Federal Court ruling, which included a costs payment of more than $400,000.
The case arose from a meeting between Ms Chrysanthou and Jo Dyer, a friend of the now-dead woman who had alleged that Mr Porter raped her.
Ms Dyer had sought advice about an article in a newspaper that referred to her appearance on the ABC's Four Corners program.
Ms Dyer challenged Ms Chrysanthou's right to represent Mr Porter, saying there was a conflict because knowledge of matters discussed in their consultation could have advantaged Mr Porter in his action against the ABC.
A key part of the case involved evidence from a friend of Ms Dyer, James Hooke.
In his judgement, Justice Tom Thawley noted that Mr Hooke had drawn Ms Dyer's attention to the article, suggesting it insinuated her decision to appear on Four Corners was politically motivated and the article might be defamatory.
Mr Hooke was with Ms Dyer when she met Sue Chrysanthou and another lawyer to discuss what to do.
His recollections about what was discussed in that meeting were key to the ruling that saw Mr Chrysanthou restrained.
Justice Thawley concluded there was a risk of misuse of information.
"Ms Chrysanthou acted for Ms Dyer in circumstances in which fair-minded members of the public would think that it was likely that material was disclosed to Ms Chrysanthou, which would be relevant to the proceedings instituted by Mr Porter against the ABC … and that Mr Porter might gain an advantage from his barrister possessing such information," he said.
'Advantageous' confidential details remain concealed
For her part, Ms Chrysanthou said she could not remember discussing any confidential material.
Just what those confidential details were are not known, as the court has redacted them. The court also closed to the public on Wednesday while they were discussed.
Barrister Bret Walker SC, who is representing Mr Porter, told the court it was odd that Ms Dyer's case had hinged on evidence from Mr Hooke, who was simply a witness.
Mr Walker argued that Justice Thawley had improperly allowed Mr Hooke's affidavit to be included.
But Michael Hodge, who is representing Ms Dyer, told the court that Mr Hooke's evidence was appropriately received.
"There is no error in his Honour's acceptance of the affidavit into evidence."
Mr Hodge also challenged Mr Porter's lawyers over their assertions about the way barristers are assigned cases.
Mr Walker told the court that barristers could not be "bagsed" and they could not turn down a brief. Instead, they needed to abide by a "cab rank" rule.
Mr Hodge said the restraint rule did not mean barristers were restricted from representing other people, but in the absence of consent they could not breach confidentiality.
Lawyers representing Ms Chrysanthou told the court there had never been a finding that she had breached any ethical duties, nor any suggestion she had not given truthful evidence.
Mr Porter settled the case with the ABC with no damages paid.
The settlement happened just before a hearing into whether the ABC's defence should remain confidential.
As a result, most of that defence evidence has never been revealed.
A bid by other media groups, Including News Corporation and Nine Newspapers, to have the suppression lifted failed.
