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It was Peter Slipper’s turn today. ASHBY v SLIPPER. Day 2.

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 General 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 earned 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 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.

Episode 2. THE ASHBY APPEAL: The saga cont…

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;

and

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

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.

CRIMINAL CASES, the ADMINISTRATION OF JUSTICE and the FREEDOM OF SPEECH.

Can I say at the outset that I am not a lawyer I just seem to have accumulated a plethora of legal subjects in the various tertiary qualifications amassed over time. This has resulted in a love affair with matters legal. I guess it also helps that there have been lawyers in almost every generation of my family going back 900 years, give or take.
Being comparatively new to the whole social media thing I would like to just take the time to raise a couple of issues that are causing me some concern following the dreadful circumstances of Jill Meagher’s death.
Social Media allows all of us a ready voice enabling and empowering us to comment on virtually any matter.  It is a wonderful feeling of liberation. But there are a number of occasions where certain lines must be drawn in the sand, which result in our collectively needing to shut up.
The situation surrounding Jill Meagher’s death is such an occasion.
Now that the matter is sub judice, under the management of the justice system, under the judge as it were, all of us need to allow the administration of justice to do its job untainted by our opinions fuelled by our horror at the manner of Ms Meagher’s death.
Media workers have an obligation ethically as well as legally under the contempt sub judice rules, to report within the constraints that sub judice contempt allows.  This also applies to those of us who engage in social media. We too are obliged to follow the law.
If anyone of us in our ignorance taints or unwittingly corrupts the justice process then there is always the possibility that someone will walk who probably shouldn’t, or who will be incarcerated when they were innocent.
The courts are not supposed to take notice of the baying of the wolves at their door, but that kind of pressure can be hard to withstand. After all, judges too are only human.
Being in USA last year for the duration of the Casey Anthony trial, including the jury’s verdict and its aftermath, underscored how much I value the restrictions imposed on how our media covers criminal cases.  (Of course, this applies to members of the general public as well.)
There is no doubt that in the Casey Anthony matter a Not Guilty verdict would have been far more difficult for a jury if they had not been sequestered.
The sequestering of a jury is where a jury is effectively removed from the world. Their isolation effectively means no contact with the outside; no phones, papers, television, i-pads, i-pods, no i-anything. The aim is to ensure that the jury is not tainted by outside influences. The Casey Anthony jury was held in isolation for the duration of the trial until a verdict was reached, which was nearly seven weeks. It happens rarely in Australia, probably because of the costs associated with the practice.
The American media’s frenzied coverage of the Casey Anthony case was most unpleasant to witness. The vast majority of the mainstream media were convinced of her guilt in the murder of her 2-year old infant.  As for the shock-jocks on pay TV and radio, they were relentless in their pursuit of her, and gobsmackingly outrageous in the extreme.
Only a small select group of the media reminded people, during the trial process,  of fundamental human rights such as, the right to a fair trial, the presumption of innocence and the onus of proof resting on the State’s representative to present a case proving beyond a reasonable doubt the guilt of the person charged.  This small select media group included The New York Times and the faux news programme, Jon Stewart’s The Daily Show.
The vitriol hurled at members of the jury who found Casey Anthony not guilty of murder in the state of Florida (which has a capital punishment for murder 1) was unexpected and unprecedented. Individual members of the jury were so distressed they were moved to comment publicly citing some of their reasons behind the verdict.
They included two critical concerns for all jury members. The first was that the state wasn’t able to ascertain how the child actually died. The second was the absence of incriminating hard evidence rather than speculation and assumptions about how people should behave in these kinds of circumstances. It was on the speculation and assumptions that the rest of the country had convicted Casey Anthony and had metaphorically already strung her up.

The American media’s role was reprehensible. They didn’t like being shown to be wrong and therefore, made fools of by the jury. I suspect that the State of Florida’s decision to go with the big charge of murder one rather than a lesser charge of manslaughter, didn’t help.
To this day I don’t know whether Ms Anthony did or did not deliberately kill her child. And that is the point. The State’s DA was unable to supply the sufficient hard evidence to prove that she, beyond a reasonable doubt, did. On that basis there had to be only one outcome. It was a sophisticated decision by 12 members of the general public who took their responsibilities as jurors very seriously, and who were greeted by venom and death threats after their decision was handed down.
The whole time we were following the Anthony Case we were comparing it to Lindy Chamberlain. Enough said.
The area of contempt law in Australia does need to be clarified ensuring we all know what is expected of us. It also needs to be consistent and less discretionary, however, this is an on-going debate, which brighter minds than mine will ultimately resolve.
I’ve included a truncated version of the TIME ZONES for reporting and commenting on criminal matters that appears in Mark Pearson’s excellent ‘The Journalist’s Guide to Media Law – Dealing with legal and ethical issues’.  (Allen &  Unwin)

CRIME REPORTING TIME ZONES FOR CONTEMPT SUBJUDICE.

AFTER crime; BEFORE arrest or charges have been laid:

No restrictions are on reporting for contempt. Please remember that defamation can still apply.

AFTER  arrest or charges; BEFORE first court appearances:  

Reporting is to be limited to the BARE  FACTS of the crime. Do not interview witnesses.  Don’t mention confessions, previous charges or convictions , and there’s to be no identification of the defendant as this is usually an issue that will come before the court..

AFTER charges laid, during preliminary court appearances:   

As above. The details of the court appearance can be carefully reported.

DURING trial: 

The description of the BARE FACTS and a ‘fair and accurate’ report of the trial. Don’t try and second-guess the jury. Don’t speculate on a result.

AFTER trial BEFORE Appeal Expiry Date: 

Report with extreme care. An appeal can result in a new trial so as  no-one wants to taint the process therefore there’s no interviewing jurors, witnesses nor any implication that an acquitted person is guilty.

AFTER appeal or acquittal: 

GO for it.

Remember defamation laws still apply at all times.

Anyone can be charged with contempt subjudice. This is a defence for the administration of justice to proceed without being tainted. The right to a fair trial is as important a right as the freedoms to speak, assemble, to worship, etc. These fundamental rights underpin the basis of our democratic society. They form one group among many aspects of that, which civilizes us.
What does our civilized society need from us – the average Joe, or Josephine Citizen? In this instance it requires our patience, tolerance and minimal understanding of how the administration of justice works so it can do its job properly and effectively on behalf of us all.

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