The Ashby Affair is like a zombie, one of the undead. You can’t kill it with an axe. It just keeps on walking, slowly and inexorably, towards those who were involved in this sorry saga.
While Mal Brough remains in Parliament the issue of his role in the tawdry affair will not go away.
Brough’s elevation to the Special Minister of State by new Prime Minister, Malcolm Turnbull, presumably for leadership spill services rendered, has reinstated the Ashby affair as an issue of concern, as it should. Not even Tony Abbott was prepared to appoint Mal Brough to any Cabinet position whilst question marks hung over the Ashby affair like the sword of Damocles.
It is ironic that among Brough’s new and probably most important duties, is the responsibility for those agencies which manage the integrity matters of a working Parliament; agencies such as, The Australian Electoral Office, the Ombudsman and the National Auditors, among others.
The key issue at the heart of the Rare’s decision in Ashby v Slipper is the abuse of the administration of justice. It was an application from Slipper’s lawyers that the case in which Ashby alleged sexual harassment by Slipper, be dismissed. By the time Rares’ brought down his decision to dismiss the case there was a mountain of evidence, raising serious doubts as to Ashby’s veracity and implicating others in the Ashby v Slipper saga.
One of those key others to benefit from Slipper’s political demise was Mal Brough, aka by his Ashby affair codename of Jacky. Many in the Opposition believed at the time that with a hung Parliament, getting rid of the then Speaker of the House, Slipper would bring down the Gillard Government, which was sufficient motivation for the apparent cloak and dagger operations as outlined in so many of the emails and text messages submitted in evidence. It did not bring down the Government as it happens, but Brough went on to win Slipper’s old seat in the 2013 Federal election, and Tony Abbott become PM.
The Rares’ decision was over-turned by a split decision of the Full Bench of the Federal Court essentially on a technical issue of uncontested evidence. All evidence given by Ashby and Harmer went unchallenged by an unrepresented Slipper and was therefore, in the view of two of the three judges, a failure by Rares J.
In the concluding paragraphs of their majority judgement Mansfield J. and Gilmour J. said as follows:
“We are satisfied that the evidence before the primary judge [Rares} did not warrant the adverse finding said to constitute an abuse of the Court’s process on the two bases found and did not warrant the rejection by His Honour of the sworn and unchallenged evidence of each of Ashby and Harmer.” Ashby Appeal decision Mansfield J and Gilmour J (par.225)
This was in response to those paragraphs in the Rares judgment, which included the following:
“Having read all of the text messages…as well as the other evidence, I have reached the firm conclusion that Mr Ashby’s predominant purpose for bringing these proceedings was to pursue a political attack against Mr Slipper and not to vindicate any legal claim he may have for which the right to bring proceedings exist. …As Mr Ashby and Ms Doane agreed in their texts of 30 March 2012 what they were doing ‘will tip the govt to Mal’s [Brough] and the LNP’s advantage”:  Rares decision para.196
“…Mr Ashby acted in combination with Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough. Mr Ashby and Ms Doane set out to use the proceedings as part of their means to enhance or promote their prospects of advancement or preferment by the LNP, including by using Mr Brough to assist them in doing so. And the evidence also established that the proceedings were an abuse of the process of the Court for the reasons I have given…” Rares J [par. 199]
Siopis J, in his minority decision, did what judges are supposed to do, and weighed the abundant evidence before coming to a decision that the appeal be dismissed. He believed the evidence substantiated Rares’ J judgment that the process had been abused and therefore tainted.
There is an irony to this story. If Rares J had let the original case proper, Ashby v Slipper, continue until the very end, then the claims of not having ‘my day in court’ and uncontested evidence may have resulted in a totally different outcome.
Throughout the appeal the one dominate plea pushed by Ashby and his legal and PR representatives, was that he did not have his full ‘day in court’ on the sexual harassment matter. Of course, within a few months after the appeal decision dismissing the Rares’ judgment was published, Ashby withdrew the allegations of sexual harassment giving Slipper’s mental state as his primary reason. The Ashby v Slipper matter was no more. Ultimately there was no ‘day in court’. After all, the strategy had been successful. Slipper was a man broken beyond repair; Brough was to become the new MP, and the LNP the newly elected Government.
And what about the abuse of the justice system? It had taken yet another body blow.
Brough’s admission on 60 Minutes in an interview with Liz Hayes that he’d asked Ashby for Slipper’s diary entries was a matter that should’ve resulted in an immediate AFP inquiry. It was an extraordinary admission, which underscored concerns about the abuse of the administration of justice in this matter.
An abuse of the justice process sounds as boring as watching paint dry, and it is.
Is it so very important? Critically so.
The ‘administration of justice’ as a principle goes hand in hand with the principle of ‘open justice’, and they both form a key foundation stone on which any democratic society is built. Undermine it, and the fabric of your democracy starts to crumble. Extremist totalitarian and corrupt regimes, whether fascist or communist, flourish as a result.
Hence we get to the nub of the problem. The Opposition under Abbott and subsequently as Government, always seemed content to use the justice system as a political weapon in an endeavor to defeat or exact revenge from identified opponents. It has been their M.O. The pursuit of Slipper in which Brough was involved, as were others in the Government, is just one example. The Ashby affair has also raised the concern in its being just another step in the apparent politicization of the Australian Federal Police, and in on going attempts to politicize the courts.
In the last two years we have seen in operation three Royal Commissions. The Royal Commission into the sexual abuse of children by institutions has been a very fine example of how a Royal Commission should be structured and how it should behave. There was no political agenda, the terms of reference were broad and it appeared driven by a desire to get to the truth. It was implemented by the previous Government and continues despite budget cut-backs.
The Royal Commission into Pink Batts was designed to attack the Abbott Government’s political opponents, which it did although not very successfully, and has now faded into obscurity.
The Trade Union Royal Commission is similarly being used to achieve a political end. Its narrow terms of reference were designed to only identify corruption in certain unions and union officials. TURC certainly wasn’t supposed to find companies who may be complicit in the corruption, nor favoured whistle-blowers like Kathy Jackson. Turc’s performance, its treatment of company officials who’ve been called, Kathy Jackson and lack of real understanding of Industrial Relations law enshrined in High Court precedents has resulted in its abject failures so far to ‘get their man’ or ‘woman’. Its competence aside, it has now been tainted beyond repair. TURC, it seems, is proving to be ‘a bridge too far’.
These two Royal Commissions are part of this M.O.; one of using the justice system as a weapon to achieve an outcome as part of a political agenda. These are Abbott’s legacies, and therein lies the real problem for Malcolm Turnbull. He’s inherited them.
By appointing Mal Brough to the Cabinet, Turnbull runs the risk of being tainted by the odour that seems to follow the Ashby saga wherever it goes. One thing is certain. It is not going away.
If, as is being reported by the mainstream media, the AFP is continuing to investigate these allegations then questions arise as to the appropriateness of Brough to be given any Cabinet position, especially one involving probity and ethics.
This article was published on NoFibs.com.au , 23rd September 2015.
Last night a man died. I’ve known him now for over five years. I never knew his name.
There are thousands of homeless people living rough in Sydney. This man was one of them.
He was a gentle giant who didn’t have much to say except a whispered hello or thank you.
My husband and I live in a very swanky apartment complex by the harbour. We first encountered our very own homeless person on the night we moved in. It was a balmy summer’s night and he was sound asleep on a bench by the water’s edge. His gentle snoring made us tip-toe past so we wouldn’t wake him.
In the five plus years since there hasn’t been a day when we haven’t seen him. He was adopted by both the residents and commercial operators in this complex. If it rained he took shelter under an awning near a fire escape. Umbrellas would magically appear. Residents fed him; clothes given to him. Security wouldn’t move him on instead only checked that he was ok and had everything he needed. A locker was provided for his few possessions. At night his gentle snores could be heard if you went outside to look at the stars reflections playing on the water. The seagulls congregating for their morning breakfast of breadcrumbs from his dinner the previous night, were a welcome wake-up call.
He didn’t want emergency housing. He liked Pyrmont, and so he stayed.
He became ill this week. Hot soup became a staple. A doctor was organised to come and pay him a house call. There was great concern for his health. He refused to go to hospital and died in the early hours of yesterday morning.
I don’t know if there is any family but he had become a part of our community for over a decade. He will be missed.
Any matter involving Peter Slipper would appear to be always complicated, never easy. The simple matter of a mention before the Federal Circuit Court today proved to be no different. Instead of just setting dates for hearings to commence the court ended up with a new version of a legal soap opera.
Before Judge Manousaridis legal representatives involved in Doane v Slipper & Anor., were pushed to the end of the queue. It appeared everybody knew that this was going to be the first round of the next chapter in the on-going legal serial.
And so it proved.
Mr S Berry was the first to throw a curveball in the proceedings. He is representing Peter Slipper in this matter, but at this stage only conditionally. The nature of the condition was never spelt out, but he assured the court it would be sorted out in the next few days.
Miss Marks from Harmer’s solicitors and representing Karen Doane was quick to complain about the difficulties her firm had faced in being able to serve Mr Slipper with the Statement of Claim. Mr Berry replied by requesting an adjournment of four weeks.
Mr Berry explained to the court that he wasn’t prepared to be served with the Statement of Claim until all the conditional aspects of his representation of Mr Slipper were finalized, and, further to that, when he had received final instructions from his client.
Miss Wright, representing the Commonwealth of Australia, seemed resigned to play the supernumerary role in the next chapter of this legal “Days of our Lives”.
To further complicate the issue there was a concern expressed by Miss Marks about the involvement of an insurer who was opposing any Government liability in this matter.
Once an insurer is involved in these matters court cases can take forever as there’s another player in the game who doesn’t want to part with a cent.
Judge Manousaridis cut through the growing gordian knot by referring back to the existing Statement of Claim filed by Miss Doane.
His Honour said that the Statement of Claim was too general and needed to be specific in details about the breaches of the relevant sections of the Acts.
The current Statement of Claim just quotes the relevant sections of the Acts, which Miss Doane argues have been breached.
These breaches include the following:
s.14(2)(a) and/or (b) and/or (d) of the Sex Discrimination Act 1984 (Cth);
s.15(1)(b) of the Racial Discrimination Act 1975 (Cth);
s.15(2)(a) and/or (b) and/or (d) of the Disability Discrimination Act 1992 (Cth).
What is omitted from Doane’s Statement of Claim is how these sections of the various Acts have been breached.
Miss Marks attempted to justify the existing Statement of Claims by stating they were “concerned about the increasing cost of the case”, and had been hoping to use the breaches outlined in the Human Rights Commission hearings where orders were sought by Doane for alleged breaches by Slipper of s.46PO(4)(a) and (d) of the Australian Human Rights Commission Act 1986 (Cth), and s,15(2) of the Disability Discrimination Act 1992 (Cth).
Judge Manousaridis stated that the Human Rights Commission documentation “was interesting but not relevant to the process here…”
He ordered Doane to file a detailed and specific Statement of Claim, and gave her four weeks to comply.
He then ordered Mr Berry to reply to this Statement of Claim in five weeks, giving Mr Berry more than sufficient time to not only sort out his instructions from his client, but also submit a defence to the more appropriately constructed Statement of Claim.
Peter and Inge Slipper at the Ashby v Slipper Appeal hearing. c/- Ross Jones and Independent Australia
The fortnight began with the #MARCHinMARCH. Over 100,000 people took to the streets because they’ve already had enough of Abbott’s policies, which seem to be so driven by ideology. The IPA, a tea-party styled think-tank, and their itemized conservative wish list is being ticked off a few items at a time.
The mainstream media didn’t cover the #MarchInMarch events despite its turn out although various St Patrick’s Day marches received prominence on page 3 of most main publications. Social media was, as usual, bitingly sarcastic about the lack of coverage. This prompted various replies but the most interesting was Jacqueline Maley’s from the SMH.
It was a grudging apology at best, but quickly descended to justification about a digital coverage of the most offensive placards she could find. To be honest there weren’t that many. There is always going to be placards that offend present at any demonstration. I was surprised at how few there were. Of course this seemed to be that the angle that was taken by most in the mainstream media. Sky News air-headed reporter Laura Jayes had tweeted a request for people to send her their photographs of offensive placards. Well, we all knew at that point what angle Sky News was going to take in their coverage of this event. Silly woman.
Jacqueline Maley’s other main complaint was that the March in March was unfocused. I want to apologise at the outset that there isn’t a war in Southeast Asia on which we can all focus. She missed the most interesting and newsworthy aspects of this story.
This demonstration was organic in origin. It wasn’t organised by a political party, a trade union or any other institution, think-tank, association and the like. It grew organically from and through social media. It went on to resonate throughout the country. It wasn’t confined to the big cities. Marches occurred throughout all rural and regional centres. The MarchInMarch movement is a new phenomenon worthy of research and analysis by the media.
Not being driven by a single issue was one of the more newsworthy aspects of these demonstrations. Virtually all policy initiatives that have been presented by this government within the last six months were the subject of outrage by those participating.
That was the real story of #MarchinMarch.
As a result an eclectic coalition of concerned citizens has sprung to life.
THERE’S SOMETHING ABOUT ARFUR:
To understand the significance of what a problem the Sinodinos issue is for the federal government you need to know a little bit about his background.
Arthur was one of the back-room mainstays of Howard’s term as prime minister. He left his job as Howard’s Chief of Staff with plenty of plaudits being perceived as super smart, highly competent, shrewd, intelligent and tactically astute. He went on to become the Treasurer of the Federal Liberal Party until his election to the Senate in 2011.
Sinodinos was, until a few weeks ago, the assistant treasurer as he was deamed numerate, unlike his colleague Joe Hockey who, in another highlight of the week, was challenged in understanding the difference between deficit versus debt, much to the hilarity of the other side of the House.
Sinodinos’s involvement in the highly questionable dealings of Australian Water Holdings, and his relationships with the Obeid family are currently being examined by ICAC. This is from a man who was regarded as one of the smartest on the Front Bench. In any normal government with consideration for their appearance as being clean and above board, his return to any position of influence or authority would not be considered for a second.
But then, this is Tony Abbott’s government.
Suspension of FUTURE of FINANCIAL ADVICE Reforms:
One of the items on the IPA’s agenda has been a reform of the Labor Government’s Future of Financial Advice legislation which outlawed the previous practice of financial advisers taking commissions from companies whose investment packages financial advisors then on-sold to their clients.
Many small investors and self-funded retirees always thought this outrageous as it easily exposed them to being ripped off. Financial advisers and consultants did not have to inform their clients about any commissions they were receiving from the sale of investment packages.
The absence of regulation in this area resulted in numerous cases of abuse where ordinary people lost considerable amounts of money due to questionable advice driven by greed.
Sinodinos was one of the main proponents for this legislative change. It’s a sweet irony that his involvement with AWH has resulted in an undignified appearance before ICAC; an appearance, which will, more than likely, result in the end of any parliamentary ambitions Sinodinos may have had. It certainly raises the question as to just how professionally and financially astute he really is. His reputation for being one of the smartest men in the room is no longer viable as a Government commodity that can easily be sold to the electorate.
This issue will not disappear quickly as Mr Sinodinos’s role as AWH’s chairman and director must surely be further scrutinised by other appropriate authorities.
Attorney-General BRANDIS and the RIGHT TO BEING A BIGOT
The attorney general, George Brandis, introduced his amendments to the Racial Discrimination Act, in particular section 18, which are are now known as the Bolt amendments so named after that well-known shock jock, Andrew Bolt. Mr Bolt’s continual whinge has been against those aspects of the law which prevent him from pursuing what he perceives is his right to be a racist, bigot, misogynist and all round not very nice person.
In introducing the Bolt amendments to the act Brandis managed to shoot himself in the foot by stating, “It’s everyone’s right to be a bigot.” The fact is there are many bigots, racists, homophobes, misogynists etc, out there, but they don’t want to be reminded that they are bigoted, racist, misogynistic, homophobic et al. Brandis, in one little line, did just that, and a storm of outrage from a broad-based community was the result.
Any changes to this piece of legislation were always going to be fraught with danger. Brandis’s mismanagement of the introduction and promotion of the Bolt amendments is further indicative of a government that is increasingly being described as Australia’s most inept yet.
The changes to the Racial Discrimination Act are now being put on the backburner as the Government scuttles about looking for more acceptable amendments that they might be able to sell. The New South Wales Premier, Barry O’Farrell, sealed the Bolt amendments delayed fate by stating publicly that these amendments were unacceptable.
Bolt must be furious.
BACK TO TIMES OF YORE; WHERE TALES ABOUND of KNIGHTS ERRANT and DAMES APLENTY
The twitter reaction to Abbott’s resurrection of titular monikers was hilarious. Within minutes of his announcement twitter handles throughout Australia were being changed to reflect his anachronistic move back to the future.
It would have been far more appropriate to announce this on April 1st, but that would’ve prevented Abbott’s using Quentin Bryce as a political pawn in his idiosyncratic move. No discussion was had in Cabinet, much less the coalition party room. It was Abbott’s decision and his alone. It’s worth remembering that the choice of Governor-General is the Prime Minister’s sole preserve. Apparently the same must be for imperial titles, whatever we want to call them this week.
The overriding derision of a large percentage of the population pooping their pants laughing did not go down well with Abbott, but that was nothing to how he must have felt when his hero, John Howard, stated that it was now too anachronistic for titles to be reinstated.
The sound of laughter does not go down well with the Conservative side of the House of Representatives it seems. A sense of the ridiculous will soon be outlawed in this country, because it is now the cause for a MP to be thrown out of the House of Representatives for being unparliamentary, which brings me to Bronwyn Bishop.
BRONWYN BISHOP: AS SPEAKER OF THE HOUSE SHE AINT HELPING YOU TONY.
From the moment she became Speaker of the House under Abbott’s Government, Bronwyn Bishop signaled her intent as to how she would manage the affairs of the HoR. It is, therefore, no surprise to anyone when confronted with her blatantly obvious bias to one side of the House.
Previous Speakers have had the good grace and intelligence to attempt to mask their bias when managing and dispensing penalties under Standing Orders. Not so Bronwyn. She is Brunhilde or Boadicea when occupying the Speaker’s chair.
Actually she reminds me of a very scary Scottish teacher of French I had at school. No one who attended her classes ever got constipation.
The thing is Bishop is giving every appearance of not knowing her Standing Orders stuff, which seems to explain her over-the-top treatment of those members who try to bring her to book, which of course in the current political climate is the Opposition.
Bishop carried around the Standing Orders tome for years. I’m now convinced it was as a prop. Whether she is now too old and is therefore losing it, or whether she never had it in the first place; after all she has never been really tested, but in either case I don’t care. It is not in the interest of the Government that she brings the House into serious disrepute through disdain and derision at the performance of her job.
By way of example yesterday’s parliamentary question time was a hoot. Tony Burke had a list of transgressions and inappropriate behavior on Bishop’s part as Speaker. It must have been very difficult for her to sit there and listen to it, especially when so much of it was met with loud guffaws.
The outcome of Burke’s motion of no confidence in her was always known. It was always going to be decided along party lines, and so it was.
Bishop’s lack of ability not to bully from the Chair was evident to all when she threw one member out for laughing and warned one and all that if they continued to laugh they would be thrown out as well. Dreyfus suffered a more serious fate. For his interjection of “Madam Speaker” he was named the penalty for which is a 24 hours suspension from the House.
It was also totally and utterly inappropriate that Bishop remained in the Chair as the debate in a no confidence motion in her occurred. However, my favourite Bishop faux pas was when she wouldn’t even hear a point of order from Burke because she knew what it was going to be about, so she said, and therefore denied it before he could even put it. Bishop really is a disgrace, and she’s giving those of us who hold Senior’s Cards a bad rap.
In the meantime the half-an-hour of hilarity was solace of sorts. As the Readers’ Digest once told me: ‘Laughter is the best medicine.’
AND WHILE I’M ABOUT IT.
Don’t even start me on George Pell. His apology to Ellis was embarrassing and rude. His behavior throughout has done nothing to dispel the appearance that the Roman Catholic hierarchy is nothing more than an old boys’ club.
And, as for Campbell Newman giving himself a sizeable increase to his salary all the while still in the midst of a slash and burn of the public service that has resulted in thousands now unemployed; nor forgetting the scrapping of essential health, transport, educational and medical services especially in the rural and regional areas – well it just beggars belief.
In a majority decision of the Full Court of the Federal Court of Australia Justices Mansfield and Gilmour granted James Ashby the leave to appeal and upheld that appeal thereby overturning the decision of Rares J. A minority decision by Siopis J granted Ashby leave to appeal and then dismissed the appeal.
All three judges denied Michael Harmer leave to appeal.
Lawyers will always tell you that there are two key components to any case that must be met if a disaster is to be avoided.
The first is a lawyer striving to provide that hook upon which a judge can hang his hat.
The second is a minefield for the unwary. It won’t necessarily be the law that will bite you in the butt, but rather the procedures required and strategies employed during the progress of a court case.
In the matter of the Ashby appeal both of these fundamental components were ignored by Slipper causing difficulties for the Rare’s decision, and consequently Slipper himself.
In December 2012 Justice Rares granted an interlocutory judgment to Peter Slipper, which in effect dismissed James Ashby’s action alleging sexual harassment against Mr Slipper. The Rares decision dismissed the Ashby case on the grounds that he had found the legal action taken by Mr Ashby was for a different purpose than a quest for justice from some form of legal settlement to a legal problem. That purpose was to harm Peter Slipper politically thereby benefiting the position of Mal Brough and the LNP. Rares J found this to be an abuse of the judicial process and dismissed the sexual harassment case.
Justice Mansfield, Justice Gilmore and Justice Siopis were given the onerous task of hearing an application for leave to appeal the Rares decision by both James Ashby and Mr Ashby’s solicitor, Michael Harmer, a non-party to the proceedings.
For their Honours this was never going to be an easy task. Whichever side of the fence their decision/s fell there was always going to be political repercussions and media interest in the outcome, no matter how hard they tried to avoid them.
Despite Harmer’s leave to appeal being filed after Ashby’s, Harmer’s application for leave to appeal was the first matter dealt with by Mansfield J.
Their Honours were unanimous in denying Michael Harmer leave to appeal on any ground. Siopis J found that Harmer was a non-party to the proceedings who had not been substantially affected by the ‘operation of interlocutory order.’ Mansfield J and Gilmour J found that the interlocutory order did not “itself affect the reputation of Harmer.”
The judiciary must have breathed a collective sigh of relief on that decision. A finding to the contrary would have opened a Pandora’s box of appeal applications from aggrieved professional witnesses against whom adverse findings have been made in a judgment. As each side of a legal argument often has expert witnesses there is always one ego at least, which is going to feel bruised and aggrieved.
Reading between the lines of various comments contained in their decisions it would seem to indicate the disagreement between the three judges may well have been responsible for the additional and unacceptable time taken in reaching and bringing down their judgments. The two-day hearing for the applications for leave to appeal and the appeal proper were heard in the first week of May 2013. The decision was brought down on 27th February 2014.
The majority decision of Mansfield and Gilmour uses muddied language and muddled thinking. Despite the fact that we were in the land of law there still needs to be an obvious logic to any decision driven by a narrative fuelled by precedent and legal interpretation. The decision of Mansfield and Gilmour lacks logic.
Mansfield J and Gilmour J rely heavily on the fact that Justice Rares didn’t accept uncontested evidence. Throughout their decision the words ‘uncontested evidence’ and ‘not cross-examined’ are constantly used. They take the view that evidence that was uncontested or not subject to cross-examination stands irrespective of the body of contrary evidence contained elsewhere.
One such example was the inclusion in the originating application of 2003 allegations of a consensual sexual relationship between Slipper and a member of staff, and allegations about the misuse of Cabcharge vouchers, which had not been reported by Ashby to the appropriate authorities, as in the Federal Police. In Rares’s view it raised questions as to the legitimacy of Ashby’s purpose in bringing the sexual harassment case as these allegations included in the originating application had no ‘legitimate forensic purpose.’
Mansfield J and Gilmour J dismiss this view as Ashby had ‘when his statement of claim was filed, abandoned the 2003 allegations and all the Cabcharge allegations, which the primary judge held … had done harm to Slipper that Ashby and Harmer had intended when those allegations were included in the originating application.’ Of course the original claim filed on Ashby’s behalf by Harmers contained these allegations before being amended some weeks later deleting the 2003 and Cabcharge allegations.
It may seem disingenuous to suggest that the miles of media print and hours of broadcast time devoted to those allegations contained in the originating application didn’t do exactly what Rares J found had been accomplished. It is difficult to see how these original allegations can be detached from the purpose of the proceedings argument but somehow Mansfield and Gilmour seem to manage it.
Much of course is made of Slipper, who was appearing for himself at the time, not cross-examining Harmer when he was in the witness box called by his client, Ashby, to give evidence on the originating application. Nor was Ashby called by Slipper to question him on the purpose behind the inclusion of these allegations in the originating application.
With no cross-examination it is easier to validate existing evidence irrespective of how clumsy or flimsy it may appear to be. Virtually every issue the majority decision considers has at its core the fact that there was uncontested evidence making it easier for them to dismiss any alternative view. This was a serious mistake by Slipper. Even a poor cross-examination would have been better than none.
There is precedence with regards to weight of evidence with the general proposition being that such evidence, which is not ‘inherently incredible and which is unchallenged, ought to be accepted.’ Of course the exception to the rule is that evidence can be rejected if it is contradicted by the facts established elsewhere.
So argued Siopis J who, in his minority decision, continually looks at the weight of the evidence and its consistency with non-verbal evidence contained in 270 pages of text and email messages upon which Slipper was relying.
One such example Siopis J gives is “…the highly probative evidential value of the verbatim transcripts of the text messages sent and received by Mr Ashby, which reflected an accurate record of contemporaneous dealings between Mr Ashby and others, the primary judge had a rich vein of reliable evidence against which to weigh Mr Ashby’s affidavit evidence of his purpose.”
The most blissful example of evidence coming unstuck which Mansfield and Gilmour seem not to get their heads around and, quite frankly, stinks like dead fish sitting out in the summer sun for three days, was the medical certificate supplied to Mr Ashby by Dr Shaiza Mazhar.
It was never given to Slipper’s staff for his sick leave from 10th April but appeared attached as evidence to an affidavit dated 26 September 2012.
The medical certificate was dated the 5th April 2012 and states:
“Mr James Ashby has a medical condition and will be unfit for work from 10/04/2012 to 22/04/2012 inclusive.”
Of course it was during this period that Mr Ashby was in Sydney with News Limited’s Steve Lewis for press coverage of the Cabcharge allegations, and Harmer’s staff preparing documents for a sexual harassment case.
Siopis J describes this evidence as ‘curious.’ What is ‘curious’ is that Mansfield J and Gilmour J didn’t.
The options are now limited for Slipper. He could seek leave to appeal to the High Court, but appears to be without sufficient funds to pursue this option. It is more likely Ashby v Slipper will begin again. Of course Slipper has to contend with the discrimination allegations at the heart of a civil case brought against him by Karen Doane and which will be heard on April 1.
Mr Ashby and his team seem intent to continue with the sexual harassment case so Ashby v Slipper may go back before a new judge and start again at Square 1. I’m sure there will be a few highly placed LNP politicians who hope he doesn’t.
The day was grey and drizzling. The courtroom was cavernous and empty. The usual motley crew of lawyers, hangers-on and a few representatives from the media, old and new, were scattered throughout the room. On the bench, where their Honours sit, was one glass of water. There were no Slippers.
James Ashby visibly slumped, shed a tear and become overwhelmed with relief when Justice Mansfield, the presiding judge in this appeal, brought down the decision by the Full Court of the Federal Court of Australia in his favour.
At the end of 2012 Justice Rares had thrown out Ashby’s sexual harassment case against Mr Slipper describing it ‘as an abuse of the judicial process’ with the main purpose to cause Mr Slipper ‘significant public, reputational and political damage’ with the aim of advancing ‘… the interests of the Liberal National Party.’
Ashby’s application for leave to appeal the Rares decision was granted, and his appeal was upheld by the Full Court. Costs were awarded in Ashby’s favour.
Harmer’s application for leave to appeal was not successful. He will have to pay the respondent, Peter Slipper, costs.
It was more than half-an-hour after Justice Mansfield pronouncement before Ashby fronted the media outside the Court. Harmer, McClellan and the rest of Ashby’s team were ensconced in one of the many interview rooms that are adjacent to the courts, celebrating their win as well as deciding the answer to the obvious question of ‘where to now’
Mr Ashby made it clear that today’s success enabled him to continue with his legal fight, his ‘chance to obtain justice for my original claim against Mr Slipper.’
His legal representatives contend that Ashby had ‘never had a proper hearing on the merits of his case’. This, so they say, is ‘what we’ve been after for a long time.’
There may be a few on the front bench of the LNP Government who hope that Mr Ashby doesn’t continue in his quest for justice and just vanishes into the political ether.
Time will tell.
In the meantime Mr Slipper could well be fighting on two fronts as his former media advisor, Ms Karen Doane, has brought an action against him alleging discriminatory practices during her period of employment in Mr Slipper’s office. This matter is due to be heard on April 1.
Sydney Cove Oyster Bar on a lovely Spring afternoon celebrating the harbourside beach barbie. Photo by JEE
The Sydney Cove Oyster Bar is celebrating the SMH’s good food month and their 25th anniversary with a Harbourside Beach Barbie. Chef Rhys Ward has created a menu especially for it, and we were the first beneficiaries.
I started to write a piece about one of my favourite restaurants in Sydney. After a thousand words or more I decided to delete the lot.They say a picture is worth a thousand words so I’ve decided to show you what we ate rather than waffle on. It’s enough to say that all the ingredients are fresh, it’s cooked there and then to perfection, and was as terrific as the photos indicate.
Fresh shucked Sydney rock and Pacific oysters. Photo JEE
You can’t go to the Sydney Cove Oyster Bar without having oysters. Our first course was freshly shucked Sydney Rock and Pacific oysters. They were so fresh they were on the point of giving you a wink as you popped them into your mouth.
Chef Rhys Ward with king prawns on the BBQ. Photo JEE
The oysters were followed by salt-and-pepper barbecued king prawns. As they were happily being cooked on the BBQ the aroma went wafting down the Quay concourse. Passers-by turned their heads, stopped, sniffed the air and smiled. The scent is the promise of a summer yet to come. What a brilliant advertisement for a restaurant’s food – aromarama.
These locally sourced prawns went from the hot plate to my plate where they didn’t last very long I’m ashamed to say.
Prawns on a plate, but not for long. Photo JEE
The third course is tender chargrilled lamb on skewers, punctuated with mushrooms and cherry tomatoes. The lamb was cooked in rosemary, garlic, lemon juice and olive oil I think. If I’ve left out any ingredient I apologise I was too busy eating to go and ask Rhys for details. I know I’m shameless.
Rhys Ward and @pwafork in deep and meaningful (I’m sure) secret men’s BBQ business. Photo JEE
These had my name tag on them.
Tender chargrilled lamb skewers with mushrooms and cherry tomatoes. Photo JEE
Topped with a little Tzatziki style dollop of creamy yoghurt minty goodness.
…and finally with a dollop of tzatziki. Photo JEE
The lamb on skewers was followed by a zingy marinated octopus salad. Octopus, like squid or calamari, is a bellwether dish for me. If it can be cooked just right then the kitchen can cook anything. There is such a short time-frame to get it right. The octopus salad with a nam jam dressing was sensational. There are nuts with this so be warned if you suffer a nut allergy. Let the kitchen know and they can accommodate any problems you may have.
Zingy marinated octopus salad. It was a feast for the eyes as well as the mouth where it quickly disappeared. Photo JEE
To finish off the meal is a cool lemon gelato in a cone. It was just the right balance between creamy and zesty.
Rhys Ward, Chef at Sydney Cove Oyster Bar. Photo by JEE
For me eating food is a social activity. Good food on its own is always missing something, but when it’s mixed with great company and quite a few laughs it becomes memorable. The ambience and the locale makes this restaurant one to which we always want to return.
The celebrations will occur on Saturdays from 12pm-3pm throughout the month of October. Check out all the details at the Sydney Cove Oyster Bar website
In the aftermath of Labor’s defeat in Saturday’s elections the first item of business for Labor is the problem of who is going to lead them over the next three years. Within a matter of a few hours after the polls were showing a sizeable defeat to Labor, social media, new and old media were engaged in second-guessing who that person may be.
Four names were immediately bandied about. They were: Bill Shorten, Tanya Plibersek, Anthony Albanese and Penny Wong.
Senator Penny Wong
I’d like to eliminate Penny Wong from the debate at the outset. Penny Wong has been one of the best performers for the Labor government over its term. She is, however, a senator from South Australia. This precludes her in the short-term from becoming the leader of the opposition. Whatever her future aspirations may be they do not include the disarray that moving to the House of Representatives would cause. She will, and should be, to the forefront of any shadow ministry.
Bill Shorten will probably be the short priced favourite for Labor leadership. This would be a serious mistake. Shorten has been, and will be in the future, an extremely competent minister. But far more is required of a leader.
Unfortunately Bill Shorten is perceived by so many Labor supporters and those in the broader community as nothing more, nor nothing less, than one of Labor’s so-called faceless men,and just another former union-hack. He doesn’t have what Labor needs for the next three years. He is unable to communicate effectively, nor does he resonate with the broader community, and he carries baggage, rightly or wrongly, that will make him an easy target for the Abbott government and the media.
Bill Shorten will deliver to Labor more of the same; more of the same image; more of the same spin. This is exactly the opposite of what is needed.
I love Tanya Plibersek. She is my local member and has been one of the best performing ministers for the Labor Government over the last three years. I understand why her name would be put forward as a potential leader. But she is 43 years old with three very young children, and she’s a woman.
Why anyone would start a campaign to conscript her in the current circumstances beggars belief. To my horror the one thing I’ve learnt from the past three years with Julia Gillard as Prime Minister is just how deeply misogynist as well as racist, this country is.
Apart from the obvious question, of ‘why would any woman put their hand up for the job having seen how Gillard was treated’, the next question is ‘why would any woman try and conscript another woman to face the same poisonous environment?’
If Tanya does put her hand up for the job more power to her; she’s got my vote. Please don’t be surprised if she doesn’t, nor hold it against her. Unlike many who don’t even think about the consequences to those around them that come from living in the spotlight on a political stage, Tanya will not readily do anything that has such a substantial impact on her immediate family.
For me that leaves Anthony Albanese, known affectionately Australia-wide as Albo. For whatever reason, seemingly the continuing friendly working relationship with Gillard and a widely perceived engaging personality, Albo, unlike Shorten, appears Teflon-coated in not carrying the huge baggage resulting from his continued support of Kevin Rudd.
Albo ticks all the boxes, except of course for the faction box. He’s an extremely competent minister. He communicates brilliantly with not only core Labor people, but with the wider community at large. Albo doesn’t talk in political spin instead he uses language that resonates. He’s not afraid of wearing his heart on his sleeve. He is a truly brilliant communicator. The surgical precision with which Albo dismantled David Speers in a Sky News interview late last week, was masterly. Everyone in the media, old and new, respects him. But most importantly of all, Abbott fears him. Indeed most of the coalition frontbench fear him. That speaks volumes.
Albo is what is needed in the short term to re-engage the Labor heartland, and articulate the differences between an Abbott Government and a Labor opposition. He is, of course, from the wrong faction. With Labor’s primary vote being the lowest in 100 years factional considerations shouldn’t even come into play. Labor needs a clever, engaging, brilliant and proven communicator who has a touch of the mongrel in him. For me that’s Albo.
Of course over the next couple of days others may put up their hand. I would ask all Labor members to consider the only thing that matters – who is the most able among you who can lead Labor away from the edge of the political precipice?
On July 1st this year the NSW Government’s amendments to the NSW Court Security Act (2005) became effective as law. It is the Government’s first real attempt to come to terms with the growth of social media and its impact on the law.
Usually the law is very slow in catching up with what is happening in society. In many ways that is part of its traditional role. It has always been an institutionalised brake on too rapid a change affecting society generally and societal institutions in particular.
The media has historically played a critical role in the ‘open justice’ principle of the law. Its role has been the public’s eyes and ears in any court proceedings. Now that the mainstream media is in such financial and structural disarray that role has been compromised. ‘New media’ or ‘social media’ has started to fill the void left by the inability of the mainstream media to adequately and appropriately cover the courts.
It’s been deemed necessary for the law and its institutions to get its head around ‘new media’ and ‘social media’, or rather the technology that drives it.
There are a number of reports from research projects that have raised broad areas of concern about the growth and use of social media platforms and its impact on the courts and their ability to do their job without the administration of justice process being compromised.
A recent report prepared for the Victorian Department of Justice by a number of very well regarded academics looked at JURIES and SOCIAL MEDIA in particular.
An article in the current Judicial Officers’ Bulletin (Vol 25, Issue 6) gives details of the findings of the Judicial Commission of NSW’s first embryonic research project looking at the impact of and general concerns about the increasing use of social media in court.
To precis the precis of the report, which was delivered in February this year, it identified twenty areas of concern, laid out in descending degrees of importance.
The issues the participants identified, in ranked order, were:
1. Juror misuse of social media (and digital media) leading to aborted trials.
2. Sub judice issues/breach of suppression orders (by tweets, Facebook or other social media), that “go viral”, and the difficulties associated with enforcement of restraining orders.
3. Increased risk of cyber stalking/opportunities for invasion of privacy or intimidation/bullying of the private lives of court case participants, including victims, jurors, judges, workers.
4. Misrepresentation of court work and activity to a community that may not understand the processes or issues involved/rapid spread of misinformation about trial processes and courts.
5. Disclosure of information to witnesses or others waiting outside inside court.
6. Difficulty in testing authenticity and credibility of social media journalism/lack of verification of social media publications.
7. Need to educate judges, court staff, the public and media. Risk of disenfranchisement of people and institutions that do not use social media.
8. Using social media to communicate court decisions and engage with the community.
9. Improper recording of court proceedings, confidential matters, evidence.
10. Defamatory statements that “go viral” on social media, creating the spectre of increased litigation.
11. Using social media to enhance court procedure (eg service via Facebook).
12. The use of social media posts as relevant evidence.
13. Difficulty in ascertaining ownership of information
sources on social media.
14. Public expectation that courts will adopt social media
15. Impact of social media on court orders, including
orders relating to social media use, jury directions,
16. Social media can be distracting in court/potential for
disruption of court activity;
17. Whether to have central control of court
18. Need for information technology systems/staff to
support social media (lack of resources for social
19. Failure of courts to use social media affects timeliness
20. Locating the origins of the user/tweeter/contributor. (pp 48 & 49)
In an attempt to deal with some of the issues that have been causing concern for some time now and which are being identified in reports such as these, the NSW Government’s amendments to the NSW Court Security Act (2005) became effective on 1st July 2013.
It is the first real piece of legislation by this Government to regulate the use of social media in an attempt to nullify its impact on the ability of the courts to do their job properly, to safeguard the principle of the ‘administration of justice’ and how that process can remain untainted by the growth and impact of social media.
The new amendment, Section 9(A), is a prohibition on the ‘unauthorized transmission of court proceedings from the courtroom’.
“SECTION 9A. Prohibition on unauthorised transmission of court proceedings from courtroom
(1) A person must not use any device to transmit sounds or images (or both) from a room or other place where a court is sitting, or to transmit information that forms part of the proceedings of a court from a room or other place where that court is sitting, in any of the following ways:
(a) by transmitting the sounds, images or information to any person or place outside that room or other place,
(b) by posting entries containing the sounds, images or information on social media sites or any other website,
(c) by otherwise broadcasting or publishing the sounds, images or information by means of the Internet,
(d) by otherwise making the sounds, images or information accessible to any person outside that room or other place,
whether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both).
Maximum penalty: 200 penalty units or imprisonment for 12 months (or both).”
Journalists, doing their job, for the purposes of a media report on the proceedings concerned, are exempt from these restrictions under Section 9B.
Journalists are defined under Section 4 of the Act as meaning a
‘… person engaged in the profession or practice of reporting, photographing, editing or recording for a media report of a news, current affairs, information or documentary character’,
and a media report is defined as being
‘… an article, program or other report for publication in or broadcast on any of the following:
(a) a newspaper, magazine, journal or other periodical,
(b) a radio or television broadcasting service,
(c) an electronic service (including a service provided by the Internet) that is similar to a newspaper, magazine, radio broadcast or television broadcast’.
This amendment has primarily resulted from jurors, witnesses and others texting, ‘facebooking’ or tweeting evidence and other information to those outside of the courtroom. This is a serious problem worthy of concern as it poses a very real threat to the process, which needs to remain untainted if a fair trial is to be achieved.
My obvious concern with the new amendment is the possibility to silence the “mummy bloggers” and “citizen journalists”, which is fast becoming a pejorative, from reporting on court cases. It all gets down to the definition of ‘properly accredited’ journalists.
The last six words of Section 9A(1)(d) “… whether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both).” are words that leave open to apply these new restrictions to bloggers or citizen journalists who report or comment on the case and aren’t deemed to be accredited journalists.
In the Judicial Officers’ Bulletin article the report touches on bloggers, citizen journalists and the members of the mainstream media. There are assumptions made in the following paragraph that amused, especially the assumed knowledge of legal matters, and the level of support supposedly still given to accredited journalists covering a legal matter; such knowledge and support being unavailable to the citizen journalist.
“Information that has been suppressed by a court ‘going viral’ via social media
… At common law, sub judice contempt enabled the punishment of people who published material that had a real and definite tendency to prejudice the administration of justice in a pending proceeding. Parliament has also provided that the courts may make a non-publication order directed at preventing prejudicial material from being published at this time at any time during proceedings.
Social media present new challenges to these traditional approaches. Social media empower anyone to be a publisher. “Citizen journalists” — people formerly known as the audience who can now employ press tools to inform each other — tend not have any professional training in journalism or the law; it is unlikely that they would be aware of the law of sub judice contempt, defamation and other restrictions on freedom of speech.In addition, in a professional media system, checking takes place at multiple levels, by sub-editors, production editors and lawyers. In contrast, ‘citizen journalists’ do not have their work verified and are less likely to appreciate the legal constraints involved. Indeed, they may be unaware of the existence of these rules, believing instead that Australians enjoy free speech to say whatever they like about anything or anybody at any time. The rules of contempt are not exerting the chilling effect on speech that was traditionally regarded as necessary to ensure the due administration of justice” (pp49-50)
“Difficulty in testing the authenticity and
credibility of journalists using social media
The sixth issue centred on concerns that journalists using social media (when contrasted to journalists in the mainstream or “legacy” media) lacked credibility. With the rise of “citizen journalists” not everyone who reports on courts will be trained and experienced in this field.” (p. 50)
The judiciary and lawyers have long complained, often loudly and despairingly, about the standard of court reporting in the mainstream media. Their complaints include journalists who don’t seem to have even the most basic understanding of how the justice system is structured, what its overall role is, what functions it performs, the limitations on journalists when a court is in session, the role court officials play, a basic understanding of the difference between civil and criminal cases, and between common and statutory law.
Sometimes it just may be the “citizen journalist” or the “blogger” who is better qualified to report and comment on legal matters. Long gone are the days when specialist journalists like Pamela Bornhorst for the ABC and Jennifer Falvey sat in a courtroom all day, every day for weeks covering the one case. These journalists were highly respected within legal circles for knowing their job and doing it well.
The NSW Court Security Act (2005) amendments and reports as outlined in the Judicial Officers’ Bulletin may be the first salvo in the genuine diminution of the principle of ‘open justice’. The concerns of the judiciary are understandable. But the arguments being used and the overall thinking is concentrated against the new technology rather than the underlying lack of knowledge of or understanding in the law by those outside the law especially the media when it comes to its role of reporting court proceedings. The concerns expressed by those in the law about social media are so similar to those arguments used when the Gutenberg printing press appeared on-line in Europe in 1450. It was going to be the end of the world.
With this new technology the problem, ensuring the untainted administration of justice, is the same problem it has always been; the problem hasn’t changed and suddenly morphed into something new. What has changed is the instant and far-reaching means of delivery.
The system shouldn’t be distracted by or only focus on the new technology. The courts have always had the capacity to take action to prevent and/or penalize behaviour that threatens the justice system from doing its job.
Suppression orders are preventative measures, and then there is a plethora of contempt laws, from scandalizing the court to contempt sub-judice that can be used. In recent times, the judiciary has rarely resorted to using the contempt measures. Suppression orders and contempt laws are still the first and only real line of defence from the attacks on the justice process.
The judiciary needs to enforce the existing measures when suppression orders aren’t met or contempt behavior threatens the court’s ability to do its job.
Governments and the legal system need now to consider educational procedures for jurors, witnesses or those who report on legal matters, whether they are journalists or citizen bloggers. The ability of the courts to comment on, as well as insist on rectification when regulations and rules are breached, should be enhanced and pursued.
Underpinning and strengthening the ‘administration of justice’ needs to be done, but not by dismantling the fundamentals contained in the principle of ‘open justice.’ A balance between the two is essential for a healthy democracy.
I’ve received a number of requests about the Ashby v Slipper appeal. I’ve put all the posts I’ve written into one blog so you can get up to speed on it at your convenience.
ASHBY v SLIPPER APPEAL: The First Round
There were surprisingly few members of the general public present at today’s directions hearing before Emmett J in the matter of the Ashby v Slipper applications for leave to appeal to the Full Bench of the Federal Court. Is this issue dead in the water with the masses and is now only of interest to the mainstream media? I’ll let others decide.
The applications for leave to appeal were not heard today but will be heard before the Full Bench of the Federal Court during their May sittings. At the conclusion of the matter before Emmett J representatives of all parties toddled off to hammer out suitable dates in May.
It was made clear by Emmett J that if leave to appeal is granted by the Full Bench then they would likely go on to hear the appeal at that time during their May sittings.
One thing that did amuse me was the issue of the length of written submissions arguing a case for the leave to appeal to be either granted or rejected. Apparently written submissions are limited to 10 pages but parties for Harmer asked for them to be increased to 30 pages. Emmett J granted this request subject to the presiding judge of the Full Bench countering the request and enforcing the 10 page rule. (For some reason this tickled my fancy and I had a quiet snigger).
The other matter for business was the issue of costs being awarded to Slipper as a result of Rare’s decision now, of course, the subject of two applications for leave to appeal.
Emmett J slated the hearing on costs to 30th May. The logic seems to be if leave isn’t granted then the hearing on costs can go ahead, but it will be totally dependent on the outcome of the leave to appeal.
So bing bang wallah wallah bing bang – all over in a very short time.
The other highly amusing thing for me was my engagement with members of the mainstream media in the lift going down while they chatted between themselves trying to sort out what had just happened in court.
It was my “OH For Fuck’s Sake” moment as I then, without the benefit of any notes, gave them a six point summary as to what had happened – all done and dusted before we hit the ground floor. Once outside the court precincts I was asked to repeat what I had said in the lift, which I did while notes were taken, much to the amusement of the delightful Ross Jones, my comrade for the morning and occasional contributor to Independent Australia, the on-line magazine.
To my very best new friends in the MSM: Today wasn’t exactly rocket science, and it helps to prepare and listen to what is being said in court instead of chatting, even if it is about the case. I don’t even want to think about what is not being taught in journalism degrees.
The focus of the Ashby-Slipper story will change as this appeal proceeds. It isn’t about Ashby anymore or, for that matter, Slipper. Well, maybe a bit. But they are now playing second fiddle to Michael Harmer. Make no mistake Harmer is now driving this engine. That is the story in my view. Appeals will be lodged all the way if necessary because at stake is Harmer’s professional reputation and career. If I was occupying Harmer’s shoes I would be doing the same.
EPISODE 2. THE ASHBY APPEAL: The Saga Continues
Just when you think it is safe to re-enter still waters, the waves start to churn again. It’s a cause to pause. The matter of an application before the Court of Appeal to grant leave, and to consider reasons why Justice Rare’s decision in Ashby v Slipper should be overturned, will be heard this week.
The next saga resulting from Justice Rares’s decision in Ashby v Slipper was always going to be of interest. Public scrutiny of the appeal is further heightened because of one unusual aspect of the appeal. One of the appellants is Mr Ashby’s high-profile solicitor, Michael Harmer, of Harmer’s Workplace Lawyers.
For Mr Slipper, although the appeal is a continuing financial and emotional burden, this time should prove a slightly more refreshing exercise. Slipper is no longer on the back foot. Rather it is Mr Ashby and Mr Harmer who are both now fighting for their future professional careers and public standing.
Both applications contain identical grounds founded in Mr Ashby’s and Mr Harmer’s belief that Rares J erred in finding that the “predominant purpose” of Mr Ashby
“ … for bringing the proceedings was to pursue a political attack against the Respondent (Mr Slipper) and not to vindicate any legal claim he (that is Mr Ashby) may have… and accordingly that the proceedings were an abuse of process.”
Ashby and Harmer also believe the Judge erred “… in finding that Mr Harmer intended to cause harm to Mr Slipper by including scandalous and irrelevant allegations in the originating application…”
Justice Rares also found this to be an “abuse of process”; and consequently dismissed the proceedings under regulation 26.01 of the Federal Court Rules 2011.
Rule 26.01 of the Federal Court Rules 2011 sets out the reasons why, and how, a party in a case can apply to the Court for an order that judgment be given against the other party. The reasons are limited and appear simple. A common one used is that the case is “frivolous and vexatious”. Others include that one of the parties can’t successfully either prosecute or defend the matter, and of course, the one at the heart of Ashby v Slipper: the proceeding is “…an abuse of the process of the Court…”
Both applications also argue that the judgment is substantially unjust as Mr Ashby was denied a hearing on the merits of his case.
Ashby and Harmer raise specific questions they want the Court of Appeal to consider although there is precedent in all these matters.
They are, however, interesting and include:
a.) how evidence on an application for the summary dismissal of proceedings for abuse of process is to be evaluated and assessed;
b.) the role of pleadings in such an application;
c.) the provision of procedural fairness in such an application;
d.) how evidence of a legal practitioner called to give evidence in the interests of his client and instructed to claim client legal privilege is to be evaluated and assessed;
e.) the professional obligations of solicitors when filing originating
applications or pleadings in the Court.
The sole area of difference between the applications for leave to appeal appears in Mr Harmer’s application, as you would expect. Harmer is no longer a voice for his client, but is now a participant in the process.
Harmer’s application argues that substantial injustice would be caused if the judgment is allowed to stand as it “… contains serious adverse findings impacting upon the professional reputation and standing of Mr Harmer…” consequently exposing Mr Harmer to the “potential of professional disciplinary action”.
The technical minutiae on issues of unchallenged evidence, evidence limited by professional and legal obligations to a client, and whether there’s an obligation of a judge to give adequate prior notice of his intentions regarding his findings, will no doubt be grist for the academic mill for decades to come on whichever side of the fence the Court of Appeal decides to squat.
There is the likelihood the application for leave to appeal, as well as the substantive issues raised in the appeal applications, will be heard concurrently. This is not uncommon. A betting person would probably wager a few bob on a concurrent hearing as two days have been set aside to hear the matter.
There is a lot riding on the outcome of this case, and not just for the parties directly involved. For a couple of days there will be people in key positions who’ll be holding their breath, not the least being Mr Brough, Miss Doane, some key people in the Opposition, and of course, the Government.
On the matter of costs this last week hasn’t been a great one for Michael Harmer and his firm.
In another sexual harassment case, Richardson v Oracle Australia, Federal Court’s Justice Buchanan, in his decision on legal costs, has been extremely critical of Harmer’s firm rejecting settlement offers. His decision suggests in continuing, “… the proceedings would have been conducted solely for the financial benefit of her lawyers.” Her being Miss Richardson.
In the Ashby v Slipper matter the issue of legal costs is dependent upon the outcome of this appeal. It has been slated for consideration by another judge, and will be heard later this month.
Here are some links with regard to the Buchanan decision on legal costs in Richardson v Oracle.
ASHBY & Anor v SLIPPER APPEAL HEARING: Full Court of the Federal Court
With the exception of Michael Harmer all the key players were there for the media to take quick photos and 15-second video grabs. Peter Slipper and James Ashby are starting to look a little frayed around the edges as they prepare to endure yet another round in this legal saga.
Today was the first day of a two-day hearing by the Full Court of the Federal Court. Justices Mansfield, Siopis and Gilmour are concurrently hearing both the application for leave to appeal along with the more substantive issues of the appeal itself.
Justice Mansfield tipped the wink to the parties’ representatives as to how much time the court thought should be allocated to each of the lawyers. For Michael Lee SC, Mr Ashby’s counsel and the first legal cab off the rank, this was always going to be difficult. His job is to plough the field for the first time with no real indication of the legal hoops he may have to jump through when they are presented to him by any one of the justices presiding.
Lee’s argument is that Rares J. made three fundamental errors resulting in Ashby not being able to present his case in full and therefore ‘be determined on its merits.’ He put forward the view that Ashby had not received procedural fairness.
Lee argued that the finding of an abuse of process by Rares J was
flawed as the seriousness of that finding required an onus that was a ‘heavy one’. Rares J needed to be ‘cautious’ in his consideration of this issue and, according to Mr Lee, Justice Rares wasn’t.
Mr Lee further argued that Justice Rares adopted an ‘impressionistic view’ about Mr Ashby’s involvement in a conspiracy to harm Mr Slipper with inferences being drawn that compromised the fact finding process.
The third error in the Rares decision, according to Mr Lee, involved the conduct of Mr Ashby’s solicitor, Mr Harmer. This was dealt with comparatively briefly as Mr Harmer, now a party to the appeal, is being separately represented by counsel, David Pritchard SC.
Lee SC also raised concerns about Justice Rares’s rejection of unchallenged evidence. Mr Slipper was representing himself at the time Michael Harmer gave evidence and didn’t subject Harmer’s evidence to any cross-examination.
Lawyers will tell you it is not necessarily the law where parties representing themselves can come unstuck but rather the lack of knowledge of, or practice in, the procedures required and their importance.
The rest of the day’s proceedings were occupied by submissions from David Pritchard SC appearing on behalf of Michael Harmer, Mr Ashby’s solicitor.
The decision of Rares J was especially critical of Mr Harmer, calling into question his professional conduct.
Questions were asked by their Honours over the level of detail in the originating application drafted by Mr Harmer. This application found its way into the press before Mr Slipper had seen it, as he was overseas at the time.
The application included details of the ‘2003 allegations’ of a seemingly consensual sexual relationship between Mr Slipper and a member of staff. An allegation of Cabcharge fraud was also included as was the indication of Mr Ashby’s intention to report the matter to the AFP. Of course, the prime allegation was that Mr Slipper had sexually harassed Mr Ashby ‘in the course of his employment.’
The game of second guessing what judges are thinking during the progress of a hearing is a long and well-established one. More often than not even the most skilled in this game fail dismally.
Questions asked of lawyers during the progress of a case can be deceptive if relied upon. Nevertheless all judges asked plenty of questions during both counsels’ oral submissions. Of seeming significance to their Honours were two issues to which they kept returning.
The first is the primary or subjective intention of Mr Ashby in bringing this matter to court. Was his original intention to pursue an issue of sexual harassment or was it to use the judicial process to harm Mr Slipper for the benefit of others, namely Mr Mal Brough and the Federal LNP? This is at the core of the ‘abuse of process’ finding by Rares J.
The second issue, which resulted in a large number of question and answer sessions throughout the day, was the matter of the ‘Genuine Steps’ obligation.
The ‘Genuine Steps Rule’ is a relatively new set of procedures introduced in the Commonwealth’s ‘Civil Dispute Resolution Act (2011)’ requiring parties to take necessary alternative measures in an endeavour to resolve their dispute before heading off to court. Both parties in a legal stoush have to file ‘genuine steps statements’ outlining what they’ve done in trying to settle the dispute.
The argument put by both Ashby’s and Harmer’s legal representatives for the seemingly inadequate Genuine Steps process, was the one of urgency. All three judges questioned the reasoning behind bringing the matter to court without going through all the alternative remedies available to Mr Ashby.
At one stage Mr Pritchard was asked the $64,000 question: the matter of payment to Mr Harmer. It was the question by Justice Siopis that caused head-turning consternation at the bar table and was never really answered. Siopis J wanted to know if there would be an apparent difference if Mr Harmer was ‘an investor in the proceedings?’ The spluttering silence of both legal counsel was his reply, and the question wasn’t pursued.
Tomorrow morning is the turn of Peter Slipper’s legal representative, Ian Neil SC.
IT WAS PETER SLIPPER’S TURN TODAY. ASHBY v SLIPPER APPEAL.
It was Peter Slipper’s turn today in Day 2 of the Ashby v Slipper Appeal. Slipper was represented by well-known Sydney silk, Ian Neil SC. He had to wait for twenty minutes or so while Michael Lee SC endeavoured to add further to his submissions from yesterday.
The issues Lee wanted to expand on were questions about the urgency of Ashby’s application preventing Ashby and his representatives from pursuing all alternative remedies available to him on the sexual harassment issue.
Lee also raised the question of whether there was evidence given on what was in the mind of Michael Harmer on the question of ‘genuine steps.’
He got short shrift from Justice Siopis. As Mr Lee had a right of reply following Ian Neil’s submissions it may have been more circumspect to wait until then to raise these issues.
It is the role of Mr Neil SC to argue that the decision of Justice Rares is correct and should stand. He outlined in order nine subject headings raised in the written submissions of Ashby and Harmer he wanted to address.
“The best laid plans of mice and men …” on paper this would have looked neat and logical. In reality their Honours were feisty and challenging. For most of the remainder of the morning Neil’s oral submissions were punctuated with rugged questioning as we bounced from issue to issue making it increasingly difficult for those few from the media and the general public present to follow with any confidence.
At no stage did Mr Neil show any impatience with or discomfiture by this morning’s proceedings. It is worth noting that he didn’t wilt under the pressure either, but continued to argue the merits of his case.
Neil started his oral submission considering the questions of procedural fairness as raised in the Ashby submission. In his decision Rares J is satisfied Slipper established that Mr Ashby had combined with one or more of the persons named as part of the conspiracy that would result in his finding ‘an abuse of the process’.
Justice Gilmour asked whether it only related to Mr Harmer. Mr Neil’s answer took the court down a grammatical path. A definitive “No Your Honour” was his response. The relevant paragraph in Rares’s decision ‘has to relate conjunctively/disjunctively with each, some or all of the persons named… It’s inelegant English but it’s not bad syntax and its meaning is clear.’ His Honour didn’t continue asking questions about sentence structure.
The grammar lesson set the tone of the rest of the morning’s hearings.
Rares J found in his decision that Mr Harmer wasn’t part of the conspiracy to abuse the process of justice that he was then an innocent party in bringing the court into disrepute. However, Rares was very critical of the ‘professional conduct’ of Mr Harmer commencing with his drafting of the originating application.
Justice Siopis asked whether it was legitimate to question the decision’s criticisms and their severity of Mr Harmer on professional grounds. Mr Neil replied that Mr Harmer was ultimately responsible for both the 2003 allegations and the Cabcharge allegations being included in Mr Ashby’s originating application. Both of these allegations were abandoned in Mr Ashby’s 15th May 2012 statement of claim.
Of course by then these allegations had become font page news as they formed part of the originating application.
Suddenly we were off track again and trying to ascertain Mr Harmer’s purpose in the inclusion of both the 2003 allegations and the Cabcharge allegations in the originating application.
Neil was steely in arguing that there was just no legitimate forensic purpose to the inclusion of 2003 allegations. It is just ‘salacious detail’ with no illegality or wrongdoing on Mr Slipper’s part, and ‘which can’t give rise to any legal consequences or any cause of action.’
Bounce. Bounce. Suddenly the court’s in the middle of discussing Mr Ashby’s predominant purpose which Rares found, after looking through a truckload of text messages and emails, to be the intention of bringing Mr Slipper into disrepute.
Mr Slipper was representing himself when these issues were raised before Justice Rares. Mr Harmer went into the witness box, and Mr Ashby could have been called by Mr Slipper, but wasn’t. Both men were not cross-examined by Slipper as to their intent. All their Honours have raised, through thorough questioning, the lack of cross-examination by Slipper of both Ashby and Harmer, which would indicate it could be a problem.
The difficulty of hearing concurrently both an application for leave to appeal and the substantive appeal itself, was made abundantly clear when Mr Neil suddenly raised arguments against Mr Harmer being given leave to appeal the Rares decision.
The morning came alive, and stayed on topic when Mr Neil raised the question of Mr Harmer’s ability to appeal as a non-party. He argued that Mr Harmer didn’t have a ‘sufficient interest’ in the matter to appeal.
Neil argued that despite the fact the Rares J raises questions with regard to the professional conduct of Mr Harmer, such findings in themselves have no legal effect. The right to appeal can only happen if and when orders were made against Mr Harmer. They haven’t.
Neil went on to state ‘there is no authority anywhere’ that supports a non-party being given leave to appeal if he doesn’t have ‘sufficient interest’ nor does Mr Harmer meet any of the tests outlined in the Federal Court Rules, 2011.
The implication of Mr Neil’s point was clear. If their Honours grant Mr Harmer leave to appeal they will be creating a precedent that could well open the flood gates to aggrieved third parties who may be mentioned adversely in findings.
Justice Mansfield went from saying ‘that doesn’t sound right’ and for the first time in the morning’s session their Honours became very quiet as the implication of Neil’s point sank in.
The remainder of Mr Neil’s arguments in support of the Rares decision seemed almost inconsequential by comparison. It dealt with the Genuine Steps Statement and the matter of Ashby’s perceived urgency.
The right of reply by both Mr Lee and Mr Pritchard were thankfully brief. Mr Pritchard endeavoured to counter Neil’s arguments against granting Mr Harmer leave to appeal. He raised the issue of natural justice, which had already been dealt with by Neil in his original written submissions.
Mr Neil SC earnt his money today.
The matter is now for the consideration of the Full Court. These are the options they have before them.
1. Neither leave to appeal is successful and the Rares decision stands;
2. Harmer’s leave to appeal is unsuccessful but Ashby ‘s leave to appeal is successful but Ashby loses the appeal and the Rares decision stands;
3. Harmer’s leave to appeal is unsuccessful but Ashby wins both his leave to appeal and the appeal itself. The result is that the trial of Ashby v Slipper is then heard in full;
4. Harmer and Ashby win their leave to appeal, but lose the appeal proper and the Rares decision stands;
5. Harmer and Ashby win both their leave to appeal and the appeal proper. The result is that the trial of Ashby v Slipper is then heard in full. Slipper will be open of to pay legal costs for Harmer as well as Ashby.
Your guess is as good as mine as to how their Honours will find in this case. Options 2 and 3 provide easier alternatives without creating a precedent for which the rest of the legal fraternity won’t thank them.
ASHBY v SLIPPER APPEAL: The principle of OPEN JUSTICE and the role of the MEDIA.
The last time I walked into a courtroom I was so heavily pregnant I waddled in rather than walked, and that was nearly twenty-eight years ago. I was there as a character witness for an occasional work colleague who was discovered driving without a licence. On that occasion the Prosecutor, a pompous prat with a Jimmy Edwards handlebar moustache and I exchanged heated words much to the amusement of the judge and a bunch of law undergraduates all who sat back and enjoyed the repartee. With my last name it is always difficult to have anything to do with the law as assumptions are going to be made. So it was with a certain concern mixed with caution when I decided to follow the Ashby v Slipper appeal.
I have long been frustrated by the quality of the dailies’ coverage of legal matters. My frustration was underscored by the media’s serious misunderstanding of issues and decisions at the directions hearing before Emmett J. I decided to do that ‘mother’ thing. You know. ‘If you can’t get somebody to do it right, go do it yourself and stop complaining.’
Throughout the recent hearing dates in the Ashby v Slipper appeal there have been certain key matters that have been constantly gnawing at my gizzards. I wanted to vent because I believe them to be of critical importance.
One of them was the mainstream media’s coverage of this case, which, if it is indicative of how they cover most cases, means we’re in trouble.
The media’s incompetence raised two critical issues, which are fundamental to law and the practice of law in this country, and more importantly, the effectiveness of the administration of justice.
Unbeknown to me I wasn’t the only one doing handstands on Wednesday trying to get my hands on the written submissions of the three parties, Harmer, Ashby and Slipper. The written submissions outline the key areas that each of the three lawyers would talk to during the two days of hearing. To not be able to read written submission at the very least means you are walking cold into a case and will find it impossibly difficult to follow.
On Thursday, day one of the hearing, I discovered David Marr who was without written submissions as well. He toddled downstairs to the Registry while I went to work on the legal representatives to see if I could acquire the submissions for perusal. To give all parties their due they had no problem with sending and giving us their submissions. For that I’m very grateful to Michael Lee SC Ashby’s barrister, Anthony McClellan, from AMC MEDIA the well known Public Relations firm working for both Mr Ashby and Mr Harmer, and to Peter Slipper’s barrister, Mr Ian Neil SC who gave us the submissions immediately. It wasn’t until the next day that their Honours let it be known that written submission would be placed on-line for our access.
The judiciary and the legal fraternity cannot have it both ways when it comes to being critical of the quality of mainstream media coverage of the courts. Just as judges and lawyers have to do their homework before going into court to either hear or present a case, so does the media. For journalists to cover a case cold does the parties and the system a disservice. Is it any wonder then that the reports written by journalists with difficult deadlines become more error-prone. A journalist’s role is a critical one to a justice system where open justice prevails.
There are three principles that form part of the justice foundation stone that underpins any functioning democratic society. The first is the independence of the judiciary from interference especially political interference known under the banner headline as the separation of powers; a principle enshrined in our constitution.
The other two are conjoined at the hip but always remain in permanent conflict. Each one is critically important in itself, but both are engaged in a never-ending war with each other in an attempt to gain dominance.
The first is the administration of justice, which is a concept that is about a community having a structure and a process in place for dispute resolution and dispensing justice that is fair and untainted by either corruption or other external influences such as trial by media.
The administration of justice has to be fair, just and impartial which assumes a level playing field between the parties when in the courtroom. Of course, those with bottomless pockets will always have the advantage. They can hire the stronger team. It now appears you also need to hire a Public Relations firm.
Anthony McClellan is a former journalist who runs a prestigious PR firm and golly he’s good. He’s short, engaging and he twinkles. If he says he’ll do something; he does it. It is a joy to see him work a room. He whispers in the appropriate ear when he feels the need, and spends the day massaging the message and the media.
The Ashby prepared statement before the commencement of the first day’s hearing was inspired. That was pretty much all that those of the mainstream media who were present, carried that night on television and radio. London to a brick on this was McClellan’s strategy and execution. If I were ever to be in trouble, I would want his firm. He’s one very clever bugger.
However the question remains; does the active role of a PR firm during the process of a court case taint the process in any way through spinning their message to a media anxious for additional tidbits that help their plight?
I’ll leave this to the legal eagles to argue, but it worries me and I think is a question worthy of careful consideration by those involved in the administration of justice and those who are concerned that it remains untainted.
Of course, the tainting of the process of the administration of justice is at the core of the Rares decision in Ashby v Slipper. I’m not sure the media coverage indicates an understanding of just what that is and what its implications are. I’m pretty sure the media would never question whether their being fed, and their acceptance of, spin from a PR firm is possibly tainting the process. So why would I expect them to be concerned about the core of Rares decision, which finds political operatives tainted the process of the administration of justice to achieve a political outcome favourable to their cause. The Rares decision is important as no act of terrorism could do as much damage as any domestic action that effectively undermines any of the institutions that bear the burden of our democracy.
The other issue is the principle of open justice. As they say in the classics; “…justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Well in this instance it was said by Lord Hewitt in Rex v Sussex Justices; Ex parte McCarthy which all lawyers seem to regard as a classic because His Lordship’s words are so often quoted.
Courts are public domains. With the exception of the Family and the Juvenile Courts, all courts are open to the public. This allows ordinary citizens like you and me being able to toddle into a courtroom to ensure that the court is not behaving like a ‘kangaroo’ court. It doesn’t matter if you’re the Queen of England. If you are in a case either as a party or a witness you have to appear in an open court before the public.
When the entire population of Sydney can’t get into a courtroom to see Gina Rinehart ‘s family stoush we then rely on the media to do the public oversight job for us. They become our eyes and ears in the courtroom. This is their role during a court proceeding. What you see when the media is doing their job properly, and in accordance with the law, is the open justice principle at work.
There were so few members of the mainstream media present during Ashby v Slipper appeal hearings. Given the media had pages covering the details of the case when Ashby first sued Slipper and when the case first started being heard, it’s a matter of real concern to me that there wasn’t a word in the printed version of the SMH Sat edition the day after the hearing finished. Not one word.
If the media starts to cover a case there is an obligation on the media’s part to finish covering it, and that means both sides. Otherwise the media is both abdicating their responsibilities as our eyes and ears, and tainting the process of the administration of justice by not being balanced in their coverage. If the media reports on one side of a legal matter, they are legally obliged to also report the other side’s case. By failing to fulfill this obligation they have under the principle of open justice, the public’s knowledge of a court case becomes distorted and the process of the administration of justice is made more vulnerable to being tainted.
Again I leave these issues to the legal powers that be but it’s worrying the hell out of me.
There is some interesting reading for those of you like-minded possums patient enough to get beyond the legal eagle jargon and distill the guts of what lawyers are trying to say.
I’ve included a link to the wonderful speech by Jim Spigelman when he was Chief Justice of the NSW Supreme Court entitled ‘SEEN TO BE DONE’ a look at the principle of open justice.
There’s an article by Garth Nertheim on the issue of ‘Open Justice versus Justice’ that appeared in the Adelaide Law Review. It outlines the dilemma when the two legal principles are discussed and how difficult it will always be to find the balance between the two.