Porter v Dyer

• Jurisdiction: Australia Federal only
• Judgment Date: 14 July 2022
• Neutral Citation: [2022] FCAFC 116
• Date: 14 July 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

Porter v Dyer [2022] FCAFC 116

Appeal from:	Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642 Dyer v Chrysanthou (NSD 426 of 2021, Orders dated 23 June 2021)
File number:	NSD 612 of 2021
Judgment of:	BESANKO, LEE AND ABRAHAM JJ
Date of judgment:	14 July 2022
Catchwords:	PRACTICE AND PROCEDURE — appeal from orders made by Federal Court of Australia pursuant to s 23 of Federal Court of Australia Act 1976 (Cth), enjoining second respondent from acting for appellant in proceedings NSD 206 of 2021 (defamation proceedings) — where prior to defamation proceedings being brought by appellant, first respondent had sought legal advice and attended conference with second respondent and instructing solicitor, as well as friend of first respondent, Mr James Hooke — where primary judge found real and sensible possibility of misuse of confidential information imparted to second respondent during conference, applying analytical framework in Nash v Timbercorp Finance Pty Ltd (in liq) [2019] FCA 957; (2019) 137 ACSR 189 and, as second basis for order, need to protect integrity of judicial process and due administration of justice — whether open to primary judge to accept evidence of Mr Hooke as to what occurred at conference — whether error established on basis that confidential information found by primary judge or any of it had lost character of confidentiality by having entered public domain — whether primary judge erred in finding second respondent proposed to act “against” first respondent in defamation proceedings — whether primary judge erred in finding real risk that confidential information imparted during conference was relevant to defamation proceedings — whether error established in relation to conclusion of risk of misuse of confidential information — whether primary judge erred in relation to second basis of injunction in failing to consider “cab rank” principle in Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and appellant’s rights — appeal dismissed ; PRACTICE AND PROCEDURE — appeal from ruling made during hearing before primary judge, allowing second affidavit of Mr Hooke to be filed and read by first respondent — where affidavit served on appellant two days before first day of hearing before primary judge and purported to set out precise content of confidential information said to have been imparted to second respondent at conference — whether primary judge failed to consider matters advanced by appellant in the appeal as giving rise to prejudice to appellant — appeal dismissed ; PRACTICE AND PROCEDURE — application for leave to appeal from orders made by primary judge pursuant to s 37AF of Federal Court of Australia Act, prohibiting publication or disclosure of documents tendered as Exhibits 2, 3 and 6 — whether error in process of reasoning adopted by primary judge, to link information in Exhibits 2, 3 and 6 to one or more of categories of confidential information identified — application dismissed — consideration of requirement in s 37AJ of Federal Court of Australia Act that order specify a period for its operation
Legislation:	Evidence Act 1995 (Cth) s 135 Federal Court of Australia Act 1976 (Cth) ss 24, 37AE, 37AF, 37AG, 37AH, 37AI, 37AJ Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Cases cited:	Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 Australian Competition and Consumer Commission v Air New Zealand Limited (No 12) [2013] FCA 533 Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198; (1999) 88 FCR 438 Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; (2014) 228 FCR 252 Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642 Dyer v Chrysanthou [2021] FCA 578 El-Cheikh v Miraki [2017] NSWSC 1765 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Giannarelli v Wraith (1988) 165 CLR 543 Grant v Downs (1976) 135 CLR 674 Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 House v The King [1936] HCA 40; (1936) 55 CLR 499 James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102 Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 Nash v Timbercorp Finance Pty Ltd (ACN 054 581 190) (in liq) [2019] FCA 957; (2019) 137 ACSR 189 Oreb v Australian Securities and Investments Commission [2016] FCA 321; (2016) 154 ALD 124 Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 Russell v Russell (1976) 134 CLR 495 Scott v Scott [1913] AC 417 Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98
Division:
Registry:
National Practice Area:
Number of paragraphs:	175
Date of last submissions:	3 June 2022 (Appellant)
Date of hearing:	20 April 2022
Counsel for the Appellant:	Mr B Walker SC with Mr C O’Neill
Solicitor for the Appellant:	Company Giles
Counsel for the First Respondent:	Mr M Hodge QC with Ms A Cameron
Solicitor for the First Respondent:	Marque Lawyers
Counsel for the Second Respondent:	Ms A Horvath SC with Mr D Harris
Solicitor for the Second Respondent:	Kennedys (Australasia Partnership)

ORDERS

		NSD 612 of 2021
BETWEEN:	CHARLES CHRISTIAN PORTER Appellant
AND:	JOANNE ELIZABETH DYER First Respondent ; SUE CHRYSANTHOU SC Second Respondent

order made by:	BESANKO, LEE AND ABRAHAM JJ
DATE OF ORDER:	14 July 2022

THE COURT ORDERS THAT:

1. The parties confer as to the outstanding issues of the duration of the order of 23 June 2021, the costs of the cross-appeal and any final suppression orders to be made with respect to documents in the appeal proceeding, including the Court’s reasons. Within 14 days, the first respondent is to file the following:

   1. Agreed...