RSS Feed

Tag Archives: Ashby v Slipper Appeal

ASHBY v SLIPPER the appeal; OPEN JUSTICE and 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.

http://digital.library.adelaide.edu.au/dspace/bitstream/2440/43917/1/alr_V9n4_1985_NetOpe.pdf

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

%d bloggers like this: