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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.

Buchanan J Decision.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/359.html

Various articles in the MSM and appropriate journals.

http://www.smh.com.au/nsw/judge-criticises-law-firm-over-rejection-of-settlement-offer-20130428-2imnr.html

http://www.itnews.com.au/News/340607,ex-oracle-worker-left-with-heavy-legal-price-in-harassment-case.aspx

http://www.lawyersweekly.com.au/news/harmers-in-firing-line-over-legal-costs

DAY 1
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.

DAY 2.
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.

http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_spigelman_091099

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.

Click to access alr_V9n4_1985_NetOpe.pdf