The James Ashby ‘Leave to Appeal’ came on a little earlier than I expected. The two-day hearing is now complete and we await the decision of the three judges. The purpose of this piece is to point out or highlight some of the more memorable events and how much they might affect the outcome. In doing so, it is important to remember that the application for leave to appeal and the appeal were being heard concurrently. The Justices of the Full Court of the Federal Court are Messrs Mansfield, Siopis and Gilmore.
Michael Lee SC is representing James Ashby and argues that Justice Rares made three errors in his judgement. Resulting in James Ashby not being able to present his case in full.
Because mainstream media are not reporting the appeal, I have sought to reference from other sources and I have lent heavily on Margo Kingston and Joan Evatt from Australians For Honest Politics.
Firstly that the finding of an abuse of process by Rares J was flawed as the seriousness of those 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 counsel, David Pritchard SC., is separately representing Mr. Harmer, now a party to the appeal.
Lee SC raised other matters about Justice Rarest rejection of unchallenged evidence. Remember Mr. Slipper represented himself and elected not to cross-examine Michael Harmer. Apparently, when people represent themselves the law can become a little bit muddled and in this case, matters of procedure might have some bearing on the outcome of the appeal.
Another complication in these proceedings is that Mr. Ashby’s lawyer Michael Harmer who was harshly condemned by Rares is also seeking leave to appeal.
Yet another point addressed by the three member panel was the “Genuine Steps Rule” This is a procedure introduced in 2011 that requires parties to try to sort out their disputes before taking court action. In this case, the Justice’s questioned why a relatively minor matter like sexual harassment claims could not have been settled another way. Like why didn’t he in the first instance complain to his employer.
The atmosphere in the court at times is reported to have been electric. Joan Evatt from Australians for Honest Politics reports that (quote):
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 counsels was his reply, and the question wasn’t pursued.
Peter Slipper’s turn.
Represented by Ian Neil QC
First up Neil hones in on the genuine steps issue and as to why Ashby had not pursued all the avenues open to him. He then argues that Justice Rares decision was the correct one. The panel subjects him too much questioning but he stands firm and addresses nine subject headings from the written submissions of Ashby and Harmer.
After that some, important matters arise that well may have a major bearing on the outcome. These are best understood by again quoting Joan Evatt at length:
At no stage did Mr. Neil show any impatience with or discomfiture by this morning’s proceedings. It is worth noting that he did not 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 Honor” 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 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 front-page news, as they formed part of the originating application.
Peter Slipper and his wife Inge leave the Federal Court in Sydney.
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 Honors grant Mr. Harmer leave to appeal, they will be creating a precedent that could well open the floodgates to aggrieved third parties who may be mentioned adversely in findings.
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 for legal costs from Harmer as well as Ashby.
Whatever the outcome is the shit is yet to hit the fan. And the other question at the conclusion will be. How seriously will the mainstream media report all this? When the justices will deliver, their verdict is unknown. STAY TUNED.
James Ashby (image from news.com.au)