© 2018 Greg & Sylvia RAY
Asking King Pyrrhus for legal advice

Asking King Pyrrhus for legal advice

Another victory like that one and we will be utterly ruined.

That quote, attributed to King Pyrrhus in about 275 BC, sprang to mind when I heard that former Australian Attorney General Christian Porter had described the withdrawal of his defamation action against the ABC and journalist Louise Milligan as “a humiliating backdown” for the broadcaster.

It’s not a very useful quote, I suppose, because King Pyrrhus certainly won the battle against the Romans that prompted his rueful remark. His point was simply that the cost was so high he couldn’t afford another victory like it. In the case of Mr Porter things aren’t quite the same, as far as I can see. While I’m happy to concede that he might really consider his own withdrawal of proceedings a “backdown” by his opponent, it’s easy to see how a great many other people might struggle to reach the same conclusion.

If, for example, I imagine that it wasn’t Mr Porter suing the ABC for defamation, but substitute some unknown character – Fred Bloggs – then retell the bare bones of a similar story with Mr Bloggs as protagonist, it seems somehow easier to follow.

So, Mr Bloggs gets upset because he believes an item on a TV current affairs program induced some people to believe he had been accused of committing a crime a long time ago. (It turns out he had, in fact, been accused of committing a crime a long time ago.) Mr Bloggs sues for defamation, immediately stopping all media reports and speculation about who did what to whom a long time ago. Next, Mr Bloggs gets to see the material that the current affairs program will be using to defend its report in the defamation case. Apparently this material upsets him, since he applies to have the material suppressed. Some legal advice suggests this application won’t succeed, but a hearing date is set.

But before his application to suppress the material the current affairs program will be using to defend itself against his defamation action is heard, Mr Bloggs goes to mediation with the program and agrees to walk away with no damages and none of his costs paid (except for the costs of the mediation). As part of the agreement Mr Bloggs demands that the material the current affairs program was going to use to defend itself against his defamation action be permanently struck from court records.

In these circumstances would we say, do you think, that Mr Bloggs had achieved a victory? Would we say that the current affairs program had humiliatingly backed down? Would we be inclined to think more highly of Mr Bloggs than was previously the case? This is a matter of opinion. In my opinion I would suggest that Mr Bloggs had shot himself in the foot, as the saying goes. I would suggest that Mr Bloggs had even blown one of his legs completely off, as far as my perception of him is concerned.

But there is no Mr Bloggs. Instead we are talking about a former Attorney General, accused of a historical rape and vehemently denying the accusation. And walking away from a defamation action with no dollars and apparently wearing his own costs (which may or may not be being covered by a benefactor).

In a way, things are more or less back to where they were before the defamation action was announced, except not exactly. Now everybody wants to know what it was that made Mr Porter willing to drop his action. The ABC has announced that its defence was not going to be a truth defence. So it wasn’t going to try to prove that the alleged rape took place. What else could it have been? Will we ever find out?

And one’s mind idly moves on to other matters that seem somehow related. Can a political reputation survive a “victory” of the type Mr Porter appears to be claiming? It seems to me that – like King Pyrrhus – Mr Porter couldn’t afford any more such victories.

Then there’s the matter of how the government and the prime minister are affected . . .


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