Ashby v Commonwealth (No 4)
[2012] FCA 1411
•12 December 2012
FEDERAL COURT OF AUSTRALIA
Ashby v Commonwealth of Australia (No 4)
[2012] FCA 1411
Citation: Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 Parties: JAMES HUNTER ASHBY v COMMONWEALTH OF AUSTRALIA and PETER SLIPPER File number: NSD 580 of 2012 Judge: RARES J Date of judgment: 12 December 2012 Corrigendum: 28 May 2013 Catchwords: PRACTICE AND PROCEDURE – dismissal or stay – application for proceedings to be dismissed or stayed as an abuse of process pursuant to r 26.01(1) of the Federal Court Rules 2011 (Cth) – categories of abuse of process not closed – where allegations allegedly made in pleading for predominant purpose of a political attack to advance maker’s own interests – where some allegations made that were irrelevant, scandalous or calculated to injure – where applicant’s lawyer responsible for impugned allegations – where applicant and lawyer intended or aware that media would obtain a copy of pleading and publish allegations made in it
COSTS – where Court’s power to order a party to pay costs limited by s 570(1) of the Fair Work Act 2009 (Cth) – to cases where Court satisfied that applicant instituted proceedings vexatiously or without reasonable cause, or that applicant’s unreasonable act or omission caused respondent to incur costs
Held: proceedings an abuse of process – applicant to pay costs
Legislation: Constitution of the Commonwealth of Australia s 40
Evidence Act 1995 (Cth) s 126H
Fair Work Act 2009 (Cth) ss 340, 342, 351, 372, 545, 550, 570(1), 570(2)(a), 570(2)(b)
Federal Court of Australia Act 1976 (Cth) s 37M(2)(e)
Federal Court Rules 2011 (Cth) rr 2.32, 2.32(2,) 6.02, 8.05(1)(a), 26.01, 26.01(1)(b)
Judiciary Act 1903 (Cth) ss 78B, 78B(1)
Legal Profession Act 1987 (NSW) s 57B
Legal Profession Act 2004 (NSW)
Professional Conduct and Practice Rules 1995 (NSW)
Safety Rehabilitation and Compensation Act 1988(Cth) s 45(4)Cases cited: Ahern v The Queen (1988) 165 CLR 87 applied
Ashby v Commonwealth of Australia (No 2) (2012) 203 FCR 440 referred to
Ashby v Commonwealth of Australia [2012] FCA 640 referred to
Barker v Commonwealth Bank of Australia [2012] FCA 942 applied
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 referred to
Chamberlain v The Queen (No 2) (1984) 153 CLR 521 referred to
Clyne v NSW Bar Association (1960) 104 CLR 186 appliedFraser-Kirk v David Jones Ltd (2010) 190 FCR 325 referred to
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 applied
Jones v Skelton [1963] 63 SR (NSW) 644 applied
Kraus v Menzie [2012] FCAFC 144 applied
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to
Lewis v Daily Telegraph Ltd [1963] 1 QB 340 applied
Lewis v Daily Telegraph Ltd [1964] AC 234 applied
Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 applied
Lloyd v David Syme & Co Ltd [1986] AC 350 applied
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 applied
Omilaju v Waltham Forest London Borough Council [2005] 1 All ER 75 referred to
Plomp v The Queen (1963) 110 CLR 234 referred to
The Queen v Hillier (2007) 228 CLR 618 applied
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 referred to
Williams v Spautz (1992) 174 CLR 509 appliedDates of hearing: 23 July 2012, 17 August 2012, 2, 4 and 5 October 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 202 Counsel for the Applicant: Mr M B J Lee SC
with Ms J McDonald (23 July 2012, 2, 4 and 5 October 2012)
and Ms R Francois (23 July 2012, 17 August 2021 and 4 October 2012)Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the First Respondent: Mr J W K Burnside QC ( 23 July 2012, 2 and 4 October 2012)
with Ms M Richards (23 July 2012, 17 August 2012) and
Mr M Albert (2 and 4 October 2012)Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr I Neil SC with Mr D Chin (23 July 2012, 17 August 2012)
Mr Slipper appeared in person on 4 and 5 October 2012
Solicitor for the Second Respondent: Maurice Blackburn (up to 18 September 2012) FEDERAL COURT OF AUSTRALIA
Ashby v Commonwealth of Australia (No 4)
[2012] FCA 1411CORRIGENDUM
1.In paragraph 19(1) of the Reasons for Judgment, fourth dot point in the first line, the word “to” should be inserted after the word “go”.
2.In paragraph 19(4) of the Reasons for Judgment, second last dot point in the first line, the word “a” should read “an”.
3.In paragraph 24 of the Reasons for Judgment, in the second last line, the words “of the” before “LNP” should be deleted.
4.In paragraph 51 of the Reasons for Judgment, in the third line, the word “a” should read “an”.
5.In paragraph 54 of the Reasons for Judgment, in the third line, the words “to Mr Slipper to his” should read “to Mr Slipper on his”. In the seventh line, the end quotation marks should be inserted after the word “weird!!”.
6.In paragraph 55 of the Reasons for Judgment, in the second line of the quotation the word “be” should be inserted after “to”.
7.In paragraph 59 of the Reasons for Judgment, after the quote, the words “(emphasis added)” should be inserted.
8.In paragraph 91 of the Reasons for Judgment, in the fourth line, the word “of” should be inserted after the word “number”.
9.In paragraph 108 of the Reasons for Judgment, in the third last line, the word “was” should be inserted after the word “there”.
10.In paragraph 114 of the Reasons for Judgment, in the second last line, the word “the” should be inserted before “2003”.
11.In paragraph 123 of the Reasons for Judgment, in the second last line, the colon should be moved to after the word “case”.
12.In paragraph 143 of the Reasons for Judgment, in the seventh line, the word “a” should be inserted after the word “were”.
13.In paragraph 166 of the Reasons for Judgment, at the end of the quote add the words “(emphasis added)”.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 28 May 2013
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 580 of 2012
BETWEEN: JAMES HUNTER ASHBY
ApplicantAND: COMMONWEALTH OF AUSTRALIA
First RespondentPETER SLIPPER
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
12 DECEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceedings be dismissed.
2.The applicant pay the second respondent’s costs.
3.The costs ordered on 17 August 2012 to be paid by the second respondent to the applicant be set off against costs the subject of order 2.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 580 of 2012
BETWEEN: JAMES HUNTER ASHBY
ApplicantAND: COMMONWEALTH OF AUSTRALIA
First RespondentPETER SLIPPER
Second Respondent
JUDGE:
RARES J
DATE:
12 DECEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
James Ashby commenced working as advisor to the Hon Peter Slipper in his capacity as Speaker of the House of Representatives, on 22 December 2011. Mr Slipper had become Speaker on 24 November 2011 with the support of the Labor Party Government in circumstances of some controversy. On the same day, Mr Slipper had ceased to be a member of the Queensland Liberal National Party (LNP) which was part of the Parliamentary Opposition. He then sat as an independent. Neither the Government nor the Opposition had a majority of seats in the House and the Government depended on the support of a number of independents.
On 20 April 2012, Mr Ashby’s solicitors, Harmers Workplace Lawyers, electronically filed in the Court an originating application under the Fair Work Act 2009 (Cth). The originating application alleged, among other serious matters, that during Mr Ashby’s employment Mr Slipper had sexually harassed Mr Ashby and involved him in “questionable conduct in relation to travel”. The originating application named the Commonwealth as the first respondent and Mr Slipper as the second respondent. Members of the staff of Senators, Members of the House of Representatives and Parliamentary office-holders, such as the Speaker, are employed by the Commonwealth under the Members of Parliament (Staff) Act 1984 (Cth) (the MOPS Act).
Mr Slipper applied to have these proceedings dismissed as an abuse of the process of the Court. Mr Slipper contended that Mr Ashby’s predominant purpose in bringing the proceedings against him, in combination with Karen Doane (another member of Mr Slipper’s staff), the Hon Malcolm Brough (who was seeking to contest Mr Slipper’s seat for the LNP at the next federal election), Steve Lewis (a journalist, employed by one of News Limited’s subsidiaries as the national political correspondent for the Daily Telegraph), Anthony McClellan (a media consultant engaged by Mr Ashby) and Mr Ashby’s lawyers, Michael Harmer and his firm, Harmers was, in effect, to inflict damage on Mr Slipper’s reputation and political career in order to assist the LNP and Mr Brough and, so, to advance Mr Ashby’s and Ms Doane’s prospects of advancement or preferment by the LNP. The present application has been bitterly fought.
The legal principles at the heart of Mr Slipper’s central allegation that the proceeding is an abuse of process are not in doubt. The Courts have an unlimited power over their own processes to prevent those processes being used for the purpose of injustice. That is why the categories of abuse of process are not closed: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93-94 [27]-[28] per French CJ, Gummow, Hayne and Crennan JJ. Proceedings that are seriously or unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment are examples of abuses of process. So too are proceedings where the Court’s process is employed for an ulterior or improper purpose, or in an improper way, or in a way that would bring the administration of justice into disrepute among right thinking people: 239 CLR at 93-94 [27]-[28]. In Williams v Spautz (1992) 174 CLR 509 at 529 Mason CJ, Dawson, Toohey and McHugh JJ held (applying what the English Court of Appeal had held in Metall & Rohstoff v Donaldson Inc [1990] 1 QB 391 at 469) that a party who alleged that a proceeding had been brought, or was being prosecuted, as an abuse of process had to show that the pre-dominant purpose of the other party in using the legal process “has been one other than that for which it was designed”. They held that the onus of satisfying the Court that there was an abuse of process lay on the party alleging it and that this onus was “a heavy one”. Their Honours cautioned that the power to grant a permanent stay in such cases could only be exercised in the most exceptional circumstances.
Mr Slipper also argued that the proceeding should be characterised as an abuse of the process of the Court because it was commenced and prosecuted in a manner that was seriously and unfairly burdensome, prejudicial and damaging to him, or productive of serious and unjustified harassment. He argued that the proceedings were commenced and prosecuted in a manner that brought the administration of justice into disrepute, based on those vexatious and oppressive features together with the allegedly improper purpose of Mr Ashby and his confederates. He also contended that the process of the Court had been used as an instrument of a calculated and orchestrated political and public relations campaign with the object of harming him, aiding his political opponents and advancing the interests of Mr Ashby and Ms Doane.
PROCEDURAL BACKGROUND
The originating application filed on 20 April 2012 was in an irregular and unusual form. It sought damages for breach of contract and should have claimed the relief that Mr Ashby sought while being accompanied by a statement of claim as required by r 8.05(1)(a) of the Federal Court Rules 2011 (Cth): Ashby v Commonwealth of Australia [2012] FCA 640 at [2]-[3]. On its final page the originating application contained a statement that the allegations it made were supported “by sworn/affirmed evidence”, that included a forensic report in respect of text messages that it set out verbatim. The originating application made a number of serious allegations concerning Mr Slipper’s conduct including that:
·Mr Slipper had sexually harassed Mr Ashby in the course of his employment (the sexual harassment allegations);
·in 2003 Mr Slipper had a relationship of a sexual nature with a younger male member of his staff and an encounter between them had been recorded on a video, a viewer of which had concluded that the relationship was consensual (the 2003 allegations); and
·Mr Ashby had been forced on three occasions to watch Mr Slipper sign multiple Cabcharge vouchers during his employment and hand them to the driver of a vehicle in which they both travelled and that Mr Ashby intended to report these matters to the Australian Federal Police (the Cabcharge allegations).
I will describe those allegations in more detail later in these reasons. Importantly, by filing the originating application in the Court, Mr Ashby, Mr Harmer and Harmers made the allegations it contained under absolute privilege.
On the same day as the originating application was filed, Vanda Carson, a journalist from the Daily Telegraph, a newspaper published by News Limited or one of its subsidiaries, sought and obtained access to the “statement of claim” under r 2.32 of the Federal Court Rules. Later on 20 April 2012, Mr Lewis, sent a text message to Mr Slipper saying he would like to contact him for his comment on the allegations in “court documents”. Mr Lewis and Mr Ashby knew that Mr Slipper was then overseas. The next day many of the allegations about Mr Slipper’s conduct that were made in the originating application received significant publicity in the media.
On Tuesday 15 May 2012, three days before the proceedings were first listed for directions, Mr Ashby filed a statement of claim that had been settled by senior counsel. That pleading substantially repeated, in a pithier form, the sexual harassment allegations made in the originating application. However, the statement of claim did not repeat the 2003 allegations and the Cabcharge allegations. Mr Ashby had only served Mr Slipper formally with the original originating application early that week.
On 18 May 2012, Mr Ashby applied in Court to amend his originating application to a more conventional form. On that occasion, senior counsel for the Commonwealth and the solicitor for Mr Slipper, both foreshadowed that they wished to give consideration to making an application to have the proceedings dismissed on the ground that they were an abuse of the process of the Court. I made directions that any such application be filed by 8 June 2012. In the event, both Mr Slipper and the Commonwealth filed such applications. Both based their applications under r 26.01. In addition, Mr Slipper sought an order that Mr Ashby not continue the proceedings on the ground that they were vexatious within the meaning of r 6.02.
On 15 June 2012, I directed each of the Commonwealth and Mr Slipper to plead points of claim in support of their interlocutory applications in order to identify the issues they wished to raise. I also ordered Mr Ashby to file and serve points of defence in reply. However, Mr Slipper’s original and amended points of claim, when filed, suggested that Mr Ashby may have acted unlawfully in providing Mr Lewis and Mr Brough with photocopies of Mr Slipper’s diary entries for particular periods in 2009 and 2010. (I will refer to the amended points of claim filed on 26 June 2012 as “Mr Slipper’s points of claim”.) As a result, on 6 July 2012, I relieved Mr Ashby of having to file any defence or evidence until the moving parties, on the interlocutory applications to dismiss the proceedings, had closed their cases. This was to avoid Mr Ashby being put in the position of potentially having to incriminate himself until he knew the case and evidence he had to meet and could make an informed decision as to the course he wished to take. On 13 July 2012, I decided another interlocutory application filed by Mr Lewis. He had sought to be excused from producing a document in answer to a subpoena which he claimed was the subject of journalist’s privilege under s 126H of the Evidence Act 1995 (Cth): Ashby v Commonwealth of Australia (No 2) (2012) 203 FCR 440.
The interlocutory applications under r 26.01 were fixed for hearing on 23 July 2012. On that day, I ordered that evidence in each interlocutory application be evidence in the other and that they be heard together. After the Commonwealth and Mr Slipper had closed their cases, Mr Ashby announced that he elected to go into evidence and filed points of defence with two affidavits. The affidavits were made by David Russell QC, a former senior office holder of the LNP and one of its predecessor parties, the National Party and the Liberal Party, and Mr Harmer, who had caused the originating application to be filed in its original form. Mr Ashby also filed in Court a notice under s 78B of the Judiciary Act 1903 (Cth). That notice asserted that to the extent any obligation of confidence or contract might have prevented him from supplying copies of Mr Slipper’s diary to Mr Lewis and Mr Brough, Mr Ashby’s conduct in doing so was protected under the implied constitutional freedom of communication on government and political matters: see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Accordingly, the hearing of the interlocutory applications had to be adjourned, as required by s 78B(1), and they were fixed for further hearing on 2 October 2012.
On 17 August 2012, Mr Slipper applied to withdraw the allegations of unlawfulness made in his points of claim against Mr Ashby that had given rise to, among others, the constitutional issue. As a result, the evidence in the interlocutory applications was somewhat simplified, although it would not be accurate to describe it as simple. Indeed, the evidence is complex and voluminous. On 18 September 2012, Mr Slipper’s solicitors filed a notice of ceasing to act and he then began to represent himself. At about 4.15 pm on the public holiday, 1 October 2012, Mr Slipper sent an email to my associate asserting that he had only formally learnt, on 28 September 2012, of the settlement of the proceedings arrived at between Mr Ashby and the Commonwealth and he was not in a position to appear the next day. However, on numerous occasions, commencing when Mr Slipper first began to represent himself, Harmers had written to him informing him that his interlocutory application was listed for hearing on 2 October 2012 and that any application by him to adjourn that hearing would be opposed.
When the proceedings were called on 2 October 2012, Mr Slipper did not appear. Mr Ashby and the Commonwealth announced that they had entered into a settlement that each regarded as binding. However, they disagreed about the meaning of a term requiring the provision of “appropriate releases”. Because the proceedings between Mr Ashby and the Commonwealth had not completely resolved and both part-heard interlocutory applications were subject to the order made on 23 July 2012 that they be heard together with evidence in one being evidence in the other, I ordered the whole of the proceedings, including the dispute as to the terms of release the subject of the settlement and all outstanding interlocutory applications to be referred to the Registrar for mediation the next day. All parties attended the mediation but after a lengthy period in discussion, the mediation was unsuccessful.
The parties returned to Court on 4 October 2012. Mr Slipper appeared and represented himself. I resolved the issue of what were “appropriate releases” and, by consent, the Commonwealth discontinued its interlocutory application and Mr Ashby discontinued his proceedings as against the Commonwealth. Part of the settlement involved the Commonwealth paying Mr Ashby $50,000 in settlement of all his claims against it, excluding any claim he might have against Comcare under the Safety Rehabilitation and Compensation Act 1988 (Cth) and the proceedings he had against Mr Slipper.
Throughout the proceedings the media have displayed a great deal of interest in what has transpired in Court. This has included reporting on the details of publicly available documents, such as the originating and interlocutory applications that have been filed in the Court, and the evidence adduced in open Court, some of which, is of a highly personal and, in some instances, quite vulgar or inappropriate nature. At times each of Mr Ashby and Mr Slipper sent text messages, now in evidence, that used vile, and sometimes sexually inappropriate language and descriptions.
THE ORIGINATING APPLICATION
Mr Ashby’s originating application made two claims for relief:
(1)a claim under the Fair Work Act 2009 (Cth) that Mr Ashby had suffered adverse action by both the Commonwealth and Mr Slipper in the form of sexual harassment by Mr Slipper because of Mr Ashby’s sexual preferences. Mr Ashby sought orders that Mr Slipper undergo counselling and training in the area of anti-discrimination, civil penalties be imposed on each of the Commonwealth and Mr Slipper and he be awarded compensation (after receipt of medical evidence);
(2)a claim for damages for breach by the Commonwealth of Mr Ashby’s contract of employment “by involving [him] in questionable conduct in relation to travel”, namely the Cabcharge allegations.
The sexual harassment claim comprised, first, the 2003 allegations and, secondly, a series of incidents involving Mr Slipper during the period between 4 January 2012 and 20 March 2012. The latter series was repeated in substantially similar terms in the statement of claim. I will summarise below the three sets of allegations that were made in the originating application.
The 2003 allegations
The 2003 allegations pleaded that:
·in mid 2003, the Commonwealth became aware that Mr Slipper had formed a relationship of a sexual nature with a younger male member of his staff, because Megan Hobson, a former member of Mr Slipper’s staff had informed a senior adviser to the then Prime Minister that she had viewed a video in which Mr Slipper was observed to:
(a) enter the bedroom of the male staff member via the window;
(b)lie on a bed in shorts and a t-shirt with the staff member and hug him in an intimate fashion;
(c)“urinate out of the window of the room” of his staff member.
·after she had viewed the video Ms Hobson had concluded that the relationship was consensual ;
·the Prime Minister’s adviser told Ms Hobson to “forget all about it”;
·the Commonwealth thereafter failed “to take reasonable and effective steps to prevent [Mr Slipper] from utilising his office to foster sexual relationships with young male staff members”;
·in around budget week in May 2003, the young male staff member had complained to Ms Hobson to the effect that he had been abused by Mr Slipper after an event in January 2003 when Mr Slipper made advances on him which were rejected.
The sexual harassment allegations
In substance, the sexual harassment allegations were that:
(1)In Mr Ashby’s first week of work, commencing on 2 January 2012:
·At Mr Slipper’s insistence he stayed in the latter’s flat in Canberra. Mr Slipper had told Mr Ashby that another longer term male staff member normally stayed in the flat but was away and that others had also stayed in the flat.
·Mr Slipper had come into his office during that week and said that the male staff member referred to above had made an observation of a sexual kind concerning the relationship between Mr Slipper and Mr Ashby that Mr Ashby had brushed off at the time.
·On 4 January 2012, in his offices in Parliament House, Mr Slipper complained of having a sore neck and that, despite the availability of medical and other services in Parliament House, he asked Mr Ashby, at his flat, later that day to massage his neck. Mr Ashby claimed that he agreed to do so, not knowing what the appropriate response for a new staff member should be. When Mr Slipper lay on his bed clothed only in shorts, Mr Ashby commenced to massage his neck. Mr Slipper made groaning noises of a sexual nature that shocked Mr Ashby and made him very uncomfortable so that he stopped massaging, told Mr Slipper that he had finished and proceeded to leave the room. Mr Slipper had observed that the massage “felt so good”.
·Mr Slipper suggested that Mr Ashby should shower and go the toilet with the door open and that Mr Ashby responded that it was not appropriate to do so. The next day Mr Ashby heard Mr Slipper showering and saw that the bathroom door was open.
·As they were returning to Queensland via Sydney where they stopped over, Mr Slipper allegedly made a rude remark that the casual shirt Mr Ashby was then wearing made him appear to be fat. This was said to be an act of victimisation, since Mr Ashby was sensitive about his weight.
(2)On 14 January 2012, as he was driving Mr Slipper to a meeting, Mr Slipper made an enquiry about whether Mr Ashby had had a particular form of homosexual intercourse. Mr Ashby claimed to have been shocked and to have replied that this was not the kind of question Mr Slipper should ask.
(3)Some weeks later, while he was driving Mr Slipper in a car, Mr Slipper repeated the question in (2) above and asked Mr Ashby a question relating to the types of homosexual partners he had and that he (Mr Ashby) again responded that these were not the type of question that he should be asked.
(4)A long series of text messages were exchanged between Mr Ashby and Mr Slipper on 1 and 2 February 2012, from late in the afternoon of 1 February 2012 to the following effect:
·Mr Ashby advised Mr Slipper not to give a particular interview to a journalist.
·After Mr Ashby had discovered that Mr Slipper had gone ahead with the interview, Mr Ashby sent a text message telling Mr Slipper that what he had done was not funny and that he could not believe that Mr Slipper had called the journalist. He added: “We’ll have to clean this mess up now!!! F[…] f[…] f[…]”.
·Mr Slipper responded: “Relax my friend! x”. The originating application stated that “x” in a text message is a reference to a kiss.
·Mr Ashby immediately replied: “It’s so very hard when u care about the bloke they keep f[…]ing over. I hope like hell they don’t f[…] u over this report.”
·Mr Slipper subsequently responded: “Xxx”. Mr Ashby asserted that that message made him concerned and that he viewed it as bizarre.
·Later that night Mr Slipper sent a text message: “Would be good if you were here but perhaps we are not close enough?”.
·Mr Ashby did not respond and, about 20 minutes later, Mr Slipper resent the message, as was his habit when he received no response to text messages.
·Mr Ashby responded: “Ha ha, where’s [a long term male staff member] tonight?”.
·The two then exchanged text messages that dealt in a mutually provocative way, with speculation as to the possible activities of the other male staff member and the strength of Mr Slipper’s personal relationships with both that person and Mr Ashby. The exchanges included both of Mr Ashby and Mr Slipper making sexually provocative statements to one another. Mr Slipper again inquired during this exchange whether Mr Ashby would be interested in being closer and praised his ability at massages. Mr Ashby said that he was happy the way things were adding “I care for u Pete but the massage is as far as it goes. Life’s a lot simpler when it’s business and a few drinks after work.”
·By about 11 pm the exchange ended with Mr Slipper saying that he was sorry things were not working out but appreciated Mr Ashby’s frankness. Mr Slipper said that in future circumstances Mr Ashby was to arrange all communications through the other male staff member as he, Mr Slipper, could not guarantee his availability and that he was sorry Mr Ashby was missing Sydney Harbour cruises. (The latter was reference to the harbour cruise that Mr Slipper was scheduled to attend with a visiting overseas parliamentary delegation.) Mr Ashby considered that the withdrawal of the invitation to go on a cruise and the suggestion that he communicate through the other staff member with Mr Slipper to be a sudden change that were reprisals for his declining, what he interpreted to be, Mr Slipper’s sexual invitations.
·Mr Ashby inquired whether he was missing the cruise and Mr Slipper responded with a number of ambiguous replies.
·Early on the morning of 2 February 2012, Mr Slipper sent a text message to Mr Ashby saying that he had only been joking on the previous night and inquiring how that day’s media was. He added: “Sometimes I feel depressed and as tho the weight of the world is on my shoulders”.
·About a hour later Mr Slipper added that he suspected he was fairly stressed about the next week. (This would be the first sitting of the House of Representatives since Mr Slipper had been made Speaker and he would have to preside over the House.)
·Mr Ashby responded that he understood but that Mr Slipper should “be mindful we all carry that same level of commitment and stress for various reasons”.
(5)On 26 February, Mr Ashby and Mr Slipper had a lengthy exchange of text messages including:
·Around 7.30pm, Mr Slipper texted Mr Ashby, who was in Canberra while Mr Slipper was elsewhere, “Lucky Canberra. [A third person] thought you were a nice twink!”.
·Mr Slipper repeated the message shortly afterwards and Mr Ashby responded: “Why would he have seen a pic[ture] of me? That’s a little weird that comment from him. Weird he was having that convo with u”.
·Mr Slipper responded that Mr Ashby had met the third person. After Mr Ashby recollected that he had, Mr Ashby asked what the conversation had been about. Mr Slipper responded that it had been about whether Mr Ashby’s loyalty “… was to the thugs in LNP or to me! I told him I was hopeful your loyalty was to me”.
·The originating application then stated that there was a lengthy exchange of text messages in which Mr Slipper appeared to be questioning Mr Ashby’s loyalty and attempting to control his actions. In the course of that exchange Mr Slipper sent Mr Ashby a message that he did like Mr Ashby but the latter had to understand “I get upset when you play with my enemies and keep me in the dark. It is not what I expect of someone I considered I am close to. If you find this intolerable please discuss.” (I have given some more detail of the exchanges on this occasion later in these reasons.)
(6)Mr Ashby had kept all the text messages on his mobile phone and that they had been forensically examined to ensure that they were genuinely sent.
(7)On 1 March 2012, Mr Ashby had prepared a YouTube video of Mr Slipper that explained the significance of the Mace in the Parliament and as, Mr Ashby was showing it to Mr Slipper on Mr Ashby’s laptop, Mr Slipper stood behind him and put his arm on Mr Ashby’s arm, stroking it and saying that he did “such a beautiful job with these videos”. Mr Ashby immediately dropped his arm to ensure the touching ceased.
(8)On 20 March 2012, Mr Slipper walked into Mr Ashby’s office and said loudly: “Can I kiss you both”. Ms Doane was in the next office and, when Mr Ashby responded very loudly: “No”, she looked up. By this time Mr Ashby had formed the view that Mr Slipper had recruited him to his personal staff for the purpose of pursuing a sexual relationship with him.
The Cabcharge allegations
The originating application pleaded that:
(1)the terms on which the Commonwealth employed him included terms that the Commonwealth would:
(a)not conduct itself without reasonable and proper cause in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties (the trust and confidence term);
(b)act towards Mr Ashby fairly and in good faith;
(c)act with due regard for the agreed purpose of Mr Ashby’s contract of employment, consistently with his justified expectations, and with due care to avoid or minimise adverse consequences to him;
(d)provide a safe system of work for all its employees, including Mr Ashby, and take all reasonable steps to protect their safety (the safe work term).
(2)the Commonwealth and Mr Slipper breached their obligations under each of those terms “by involving [Mr Ashby] in questionable conduct in relation to travel”. This breach was particularised by reference to the following three incidents:
(a)on 27 January 2012, Mr Ashby was required to travel in Sydney with Mr Slipper as part of his duties. They travelled in a vehicle that was not a Commonwealth car, a taxi cab and did not otherwise display that it was available for hire or reward. Mr Slipper allegedly told Mr Ashby that he was being picked up by a friend and during the journey asked the driver how many Cabcharge dockets he required. The driver replied “three” and at the end of the journey Mr Slipper allegedly signed three Cabcharge vouchers without otherwise filling in any details before handing them to the driver;
(b)on 5 February 2012, Mr Ashby again travelled with Mr Slipper in Sydney and was driven by the same driver in the same vehicle. The pleading asserted that Mr Ashby “was forced to witness [Mr Slipper] sign multiple Cabcharge vouchers without any details being completed, and witnessed [Mr Slipper] hand them to the driver”;
(c)on 11 February 2012 Mr Ashby alleged that he was again required to travel in Sydney with Mr Slipper and was “forced to witness” Mr Slipper sign multiple Cabcharge vouchers in the same way and hand them to the driver.
(3) Next the originating application stated:
“[Mr Ashby] intends to make arrangements to make a statement to the Australian Federal Police concerning these expense issues concurrently with the filing of this application”.
The originating application concluded with a general allegation that, due to the conduct of the Commonwealth and Mr Slipper, Mr Ashby had suffered “considerable stress, humiliation and illness and is currently seeking medical assistance”.
THE BASIS OF MR SLIPPER’S AND THE COMMONWEALTH’S CLAIMS OF ABUSE OF PROCESS
Mr Slipper’s points of claim pleaded that the proceedings were an abuse of the Court’s process on the following basis:
“10. This proceeding is an abuse of the Court's process because:
(a)the predominant purpose of Ashby's conduct in bringing this proceeding against Slipper, in combination with Doane, Brough, Lewis, McClellan, Harmer and/or Harmers, was
(i) to vilify Slipper;
(ii) to expose Slipper to opprobrium and scandal;
(iii) to bring Slipper into disrepute; and/or
(iv)to destroy or seriously damage Slipper's reputation and standing, and his political position and career;
in order to advance the political interests of the LNP and/or Brough, and by those means to enhance or promote Ashby's and Doane's prospects of advancement or preferment within, or at the hands of, the LNP;
(b)this proceeding was commenced and prosecuted in a manner that is seriously and unfairly burdensome, prejudicial and damaging to Slipper, or is productive of serious and unjustified trouble and harassment, in that:
(i)no steps of any kind had been taken by Ashby to raise or resolve any dispute with Slipper prior to the dissemination of the allegations made in the proceeding by means of the publication of the Originating Application;
(ii)the allegations that were set out in the Originating Application were disseminated to the media for publication before any notice of those allegations was given to Slipper and at a time when, to the knowledge of Ashby, Slipper's capacity to respond to the media reports of those allegations was substantially inhibited because he was overseas;
(iii)Ashby abandoned some of those allegations after they had been widely reported in the media
(iv)the proceeding is vexatious and fails to disclose a reasonable cause of action against Slipper; and
(v)in the alternative to (iv), the claims made against Slipper in the proceeding are manifestly weak, and the damage that Ashby's claims to have suffered is illusory or trivial, both absolutely and relative to the damage inflicted on Slipper as a consequence of the commencement of the proceeding and the manner in which it has been prosecuted; and
(c)for the reasons given in (a) and (b), this proceeding was commenced and prosecuted in a manner that:
(i) brings the administration of justice into disrepute; and
(ii)used the processes of the Court as an instrument in a calculated and orchestrated political and public relations campaign which had as its objects the purposes referred to in (a);
in connection with which Slipper relies upon the facts and matters referred to hereafter in these points of claim.” (emphasis added)
Mr Slipper then pleaded points of claim in some detail setting out the factual basis on which he contended that these allegations would be established. While Mr Ashby accepted that a number of those facts were correct, he disputed others and the ultimate conclusion asserted by Mr Slipper. Mr Slipper’s pleaded case was elaborated as follows:
(1)from mid 2011 Mr Ashby began providing voluntary assistance to Mr Slipper in managing the media;
(2)from mid-October 2011 until 20 April 2012, Mr Ashby fostered beliefs in Mr Slipper that:
·they were friends;
·Mr Ashby supported him politically, had his interests at heart and opposed Mr Brough (who was proposing to contest LNP pre-selection to become its candidate at the next federal election for Mr Slipper’s seat in the House of Representations);
·Mr Ashby frankly discussed his homosexuality with him and engaged in light hearted banter that occasionally contained sexual comments;
(3)despite the allegation in Mr Ashby’s statement of claim that on 1 February 2012 Mr Slipper had directed him to make future contact through another member of Mr Slipper’s staff, Tim Knapp, Mr Ashby continued freely to communicate directly with Mr Slipper at all times until 20 April 2012. (The allegation in the statement of claim was substantially similar to an allegation made in the originating application);
(4)from at least 2 February 2012, Mr Ashby’s conduct towards Mr Slipper was duplicitous and deceitful because Mr Ashby:
·had conceived, or begun to conceive, plans to bring proceedings and make allegations of the kind in the originating application that would inflict damage on Mr Slipper and empower Mr Slipper’s political opponents, including Mr Brough and the LNP;
·met secretly with Mark McArdle ( who was a lawyer and then a senior shadow Minister in the Queensland LNP State opposition) and discussed those plans;
·asserted his loyalty to Mr Slipper in text messages on 26 February 2012;
·decided to commence proceedings on or about 26 March 2012;
·from about 29 March 2012, communicated and sent extracts of Mr Slipper’s 2009 appointments diary to Mr Brough knowing that that material would be used in an attempt to damage Mr Slipper and assist Mr Brough politically against Mr Slipper;
·from 29 March 2012, affirmed with Ms Doane that they were working together in “this journey” and they communicated with one another as well as with Mr Brough and a “Jackie”, about their intention to seek employment positions with LNP politicians including in the newly elected Queensland LNP State Government;
·communicated from 2 April 2012 with Mr Lewis about allegations of misuse by Mr Slipper of his travel entitlements, including sending to Mr Lewis extracts of Mr Slipper’s 2009 and 2010 appointments diaries;
·was absent from work on sick leave on and after (Tuesday) 10 April 2012, while he secretly travelled to, and stayed in Sydney, in accommodation paid for by News Limited and arranged by Mr Lewis, in order to meet with Mr Lewis, Mr Harmer and his firm and to bring these proceedings;
·Mr Ashby, through Harmers, arranged on about 12 April 2012 that Mr McClellan manage Mr Ashby’s contact with the media, including Mr Lewis;
(5)the proceedings were commenced in the context that:
·from 16 April 2012, Mr Lewis commenced publishing newspaper articles alleging that Mr Slipper had incurred excessive travel expenses;
·the originating application was filed on 20 April 2012 and Mr Ashby was aware that Mr Slipper was then in New York, making it difficult for Mr Slipper to respond to the allegations;
·Mr Slipper later received an email in New York from Harmers sent from Sydney at about 4 pm that day which was his first notice of the allegations made in the originating application;
·Mr Slipper left New York at 6.45 pm on 20 April 2012 (Sydney time) and arrived in Los Angeles later that day to be met by members of the Australian media, including television crews, questioning him over the allegations that had been made in the proceedings. When he arrived in Brisbane he was also met by a large media contingent;
·at 7.18 pm on 20 April 2012 (Sydney time), Mr Lewis sent Mr Slipper an email asking for his response to those allegations;
·a representative of the Daily Telegraph applied to the Court for access to the originating application on 20 April 2012;
·Mr Ashby, Mr McClellan and or Harmers had informed the media that the originating application had been, or would be, filed in Court before it was emailed to Mr Slipper so as to cause the allegations to receive maximum publicity, while Mr Slipper was not in a position to respond or seek legal advice, thus exposing him to the maximum adverse public reaction and damage to his reputation and so advantaging the LNP and Mr Brough;
·personal service of the originating application was not effected on Mr Slipper until 15 May 2012;
·the originating application was irregular in form and was not supported by a statement of claim or affidavit;
·the originating application contained the 2003 allegations and Cabcharge allegations, the latter suggesting criminal conduct by Mr Slipper, both of which were abandoned in the statement of claim filed on 15 May 2012;
·the 2003 allegations were not supported by sworn or affirmed evidence, contrary to the assertion made on the last page of the originating application that all its allegations were so supported;
·the genuine steps statement filed by Mr Ashby on 20 April 2012 asserted that the matter was urgent, involved aspects of victimisation and stated that “Alerting the Respondents to the matter would only increase the opportunity for victimisation”, when most of the conduct complained of had occurred by 1 February 2012, and Mr Ashby had continued working for a further six weeks without complaining of being subjected to victimisation in Mr Slipper’s office.
·Mr Ashby did not seek to use other remedies, including the Commonwealth’s policy and procedure for complaints by staff employed under the MOPS Act or complaining to the Australian Human Rights Commission.
The Commonwealth’s points of claim had alleged that the proceeding against it was an abuse of the process of the Court because Mr Ashby had brought it for the predominant purpose of damaging Mr Slipper and aiding his political opponents. It also alleged that Mr Ashby had a subsidiary purpose of pursuing collateral benefits for himself and Ms Doane, who was also employed by the Commonwealth as a media advisor of Mr Slipper. The Commonwealth asserted that each of those purposes was collateral to the legal remedies that Mr Ashby sought from the Commonwealth in the proceedings. It contended that the manner in which Mr Ashby had begun, and was conducting, the proceedings was unjustifiably oppressive to both the Commonwealth and Mr Slipper. It also alleged the manner in which Mr Ashby had invoked the Court’s procedures brought the administration of justice into disrepute.
In essence, Mr Slipper’s allegation of Mr Ashby’s predominant purpose required Mr Slipper to establish that Mr Ashby had combined with one or more of Ms Doane, Mr Brough, Mr Lewis, Mr McClellan, Mr Harmer and or his firm to publicly damage him in order to advance the political interests of the LNP, and or Mr Brough and, by those means to enhance or promote Mr Ashby’s and Ms Doane’s prospects of advancement or preferment within, or at the hands of, the LNP. That purpose went well beyond the improper purpose asserted by the Commonwealth, namely that Mr Ashby had brought the proceeding for the predominant purpose of damaging Mr Slipper publicly and aiding his political opponents. First, Mr Slipper’s pleading alleged that a number of persons had combined with Mr Ashby for the purpose of bringing the proceedings and, secondly, those persons had sought to give effect to the purpose in order to advance the interests of the of the LNP and or Mr Brough so as, thirdly, to enhance or promote Mr Ashby’s and Ms Doane’s career prospects.
Mr Slipper did not wish to cross- examine either Mr Russell QC or Mr Harmer when their affidavits were read and he was then representing himself. He relied on the written submissions previously filed by both his counsel and the Commonwealth. However, the Commonwealth’s formulation of the alleged abuse of process was different to Mr Slipper’s.
The period before Mr Ashby began work with Mr Slipper
A great deal of material was in evidence. This included two extracts from Mr Ashby’s affidavit of 13 April 2012. In the first extract, Mr Ashby said that, before he began work with Mr Slipper, he had been told by Judy McArdle, Mr McArdle’s wife, of a rumour that Mr Slipper had had a relationship with a male staff member and that there was a video of it. Mrs McArdle told him that a female member of Mr Slipper’s staff had seen the video and it showed Mr Slipper and the male staff member “on a bed and there was something involved” but that she “didn’t elaborate”. In the second extract from his affidavit, Mr Ashby said that he was no longer a member of the LNP, having resigned on 14 December 2011. He asserted that in making a complaint about Mr Slipper he was not motivated by any political or financial considerations and that his motivation was to ensure that Mr Slipper’s “conduct towards me stops, and more importantly, that such conduct is not repeated in relation to any other staff, current or future”. He also asserted that he had not been paid or promised any benefit in connection with his complaints about Mr Slipper’s conduct including those of sexual harassment and his conduct in relation to the use of the Cabcharge vouchers.
On 10 October 2011, Mr Slipper and Mr Ashby exchanged text messages in which each referred to Mr Brough in terms of vulgar and sexualised abuse. The exchange related to a YouTube video concerning Mr Brough that Mr Ashby had just launched on Mr Slipper’s behalf. At one point Mr Ashby introduced a suggestion that Mr Slipper could become Speaker in the following exchanges:
Mr Ashby:So tell me, do u want to run again or du u want to step up to speaker of the house and not bother with pre selection. I wanna know how much fight u have in u and whether I put my tactical brain into action to see us give Mal a carving up.
Too personal?
Mr Slipper:What’s too personal? Throwing stones?
Mr Ashby:Throwing stones? No the question about running for pre selection?
Mr Slipper:Range of options open. But destroying Brough should happen anyway. Where did you get the idea I could become Speaker?
Mr Ashby:A tactical thought that would allow u to remain in parliament without having to have a seat. Means that u don’t have to battle shit fight with Mal. SCD [Sunshine Coast Daily] would still have a front page story for a week, but it would be a finger in the air to them, brough and anyone else who might want to c u go. Just a thought…
Mr Slipper corrected Mr Ashby by saying that the Speaker had to have a seat in the House of Representatives. At the time, Mr Slipper was Deputy Speaker. In a series of text messages on 28 October 2011, Mr Ashby and Mr Slipper exchanged some banter concerning a person with whom Mr Ashby was having a relationship. In response to a text message that Mr Slipper was “weird” he asked whether he had offended Mr Ashby. The latter said he had not been offended and did not offend that easily. Mr Slipper replied that he had warned Mr Ashby of his “warped sense of humour” to which Mr Ashby replied:
“Yes, I raise an eyebrow from time to time wondering what some messages mean. I’ll be the first to say if something offends I’m not one to hold back.”
(emphasis added)At that time Mr Ashby indicated to Mr Slipper that he was working in the interests of Mr Slipper’s then party, the LNP. Earlier, Mr Ashby had formed a friendship with Mr McArdle who was a shadow minister in the then Queensland LNP State Opposition.
When Mr Slipper was elected as Speaker on 24 November 2011, Mr Ashby sent him a text: “I’m in ore [sic] of the tactical response to the pressure that LNP and it’s [sic] party members put u under. I will say I had this theory in my head when I text u on the 10.10.11”.
On 1 December 2011, Mr Slipper offered Mr Ashby a job on his staff in the Speaker’s office that had a base salary of about $138,000 (including an allowance in lieu of overtime) together with other entitlements. Mr Ashby accepted this position on the Speaker’s staff and commenced working on 22 December 2011.
The events of early February 2012
On one view, Mr Slipper’s messages of 1 February 2012, suggesting a closer relationship, could be read as a proposal that he and Mr Ashby have a sexual relationship. Mr Ashby rebuffed the suggestion to be met by Mr Slipper’s withdrawal of his invitation to the harbour cruise and the instruction that Mr Ashby, directly in the future, should not contact Mr Slipper directly but communicate through another male adviser, Mr Knapp. Mr Slipper corrected that situation early the next day. His conduct might have been attributable to the stress Mr Slipper said, in his text message, that he felt. Not every attempt to develop a relationship into a sexual one, that is unsuccessful, necessarily has the character of sexual harassment: see Kraus v Menzie [2012] FCAFC 144 at [68] per Rares, McKerracher and Murphy JJ. Nonetheless, Mr Slipper’s conduct in some of those text messages is capable of being characterised as sexual harassment. Thus, it was open to Mr Ashby to make such an allegation in both the originating application and statement of claim, whatever Mr Slipper may have intended to convey. What is significant from the text message exchanges on 1 February 2012 is that Mr Ashby was able to draw a firm line against having the proposed “closer” relationship and that appeared to have a relatively lasting effect.
Following the exchanges of text messages on 1 and 2 February 2012 between Mr Slipper and Mr Ashby, Mr Ashby texted Mr McArdle saying that what he wanted to discuss was 100% confidential, with which Mr McArdle agreed. In his affidavit of 31 August 2012, Mr Harmer recorded comments by Mr Ashby on selected text messages in the approximately 270 pages of them in evidence. I will refer to these as Mr Ashby’s commentary. According to Mr Ashby’s commentary he spoke to Mr McArdle on 2 February 2012, complaining of feeling distressed and uncomfortable about the text messages he had received from Mr Slipper (summarised in [19(4)] above) and that, in response, Mr McArdle told Mr Ashby that it was probably best to ignore the messages and go on having a normal professional relationship. Mr McArdle said that he would think the matter over and would give Mr Ashby any further advice if he changed his mind.
Later, on the night of 2 February 2012, Mr Slipper invited Mr Ashby on a second Sydney Harbour cruise, which Mr Ashby accepted enthusiastically. On 3 February 2012, Mr Ashby had dinner with a friend of his, whose first name was “Martin”. After thanking Martin for dinner in a text message sent at about 12.30 am on 4 February 2012, Mr Ashby extended his thanks for him being “so supportive in a moment when a fella needs real mates to make life changing decisions. National decisions actually”. Soon after that text Mr Ashby sent a text to another friend Paul Nagle, at 12.44 am saying: “I’m serious when I ask this, would u put a bullet in my head to save the nation?”. Later on 4 February 2012, another friend of Mr Ashby’s, Tania Hubbard sent him a text saying that she had sat up all night about their chat and continued:
“Are you decision making from ego? Are you feeling a rush from the power of this moment – are you clear this is not the case? I could not tell completely last night. Am concerned that you will not be protected. I understand you trust Mark – is his and your intention clear – measure up all the costs and consequences – remember this is not a heart decision – this requires logic, reasons, analysis. No meetings for you with any other Min was what we discussed last night – pass the text forward in hard copy only to Mark – let him move it forward. Backup phone, delete messages, put in safe and let it be. A smoking gun usually means someone has already been shot! Don’t let it be you – please.”
Mr Ashby responded:
“… I really enjoyed our chat last night and I must admit there is an understanding of what power can do to people, but this doesn’t empower me once the information is passed on. I don’t want to use it for my personal power. It will empower someone else definitely. Will I be rewarded or condemned? Who knows. You are right though. The smoking gun is after the shot has been fired. We haven’t yet seen the gun go off. I need protection, you’re right. I always welcome your wisdom, so please feel free to text me anytime with thoughts. I will talk to Mark again tomorrow and See what his ideas are.” (emphasis added)
The text messages on the evening of 1 February 2012 were, of course, because of the features that I have just mentioned, capable of being used to damage Mr Slipper if they were put into the public or political arena. On one view Mr Ashby could have seen Mr Slipper’s approaches on that occasion as harassing. Hence, the way in which Mr Ashby reacted is significant. He saw Mr McArdle and discussed some plan with him, as appears from a text Mr Ashby sent later on 26 March 2012 (see [55] below). His text messages with Martin, Mr Nagle and Ms Hubbard are redolent of Mr Ashby having a purely political intention to use his text exchanges with Mr Slipper to damage him and assist his political opponents, rather than of Mr Ashby being in any way emotionally traumatised or even upset.
Mr Ashby’s commentary asserted that he had confided in Ms Hubbard his feelings of distress and harassment he had felt concerning Mr Slipper’s actions. His commentary also asserted that he had informed Ms Hubbard that he had spoken to Mr McArdle who had told him not to take steps to raise issues concerning Mr Slipper’s behaviour and to see whether he could ignore the problem. Mr Ashby’s commentary added that, by this time, Mr Ashby felt resentful towards Mr Slipper.
I do not accept Mr Ashby’s commentary that he had feelings of distress and harassment concerning Mr Slipper’s actions. Ms Hubbard’s message quoted in [34] above suggests that at 4 February 2012 Mr Ashby was contemplating that Mr McArdle would use the text messages. The passages I have emphasised from the exchanges of text messages show that Mr Ashby’s discussion with Mr McArdle concerning his text message exchanges with Mr Slipper, particularly those of 1 and 2 February 2012, was to do with empowering Mr McArdle or someone else with the ability to use those messages against Mr Slipper. Mr Ashby’s references to “empowering others”, and “national decisions”, were concerned solely with the political consequences of what Mr Ashby was contemplating. Those consequences could affect the balance of power in the House of Representatives, depending on whether Mr Slipper could remain as Speaker if Mr Ashby used his “power” and what effect that use would have. That was because the Government did not have a majority in the House and was reliant on cross bench support, assisted by Mr Slipper having ceased to be a member of the Opposition and not being able to vote while Speaker, by reason of s 40 of the Constitution, unless the votes in the House were tied.
What is singular about all of the text message exchanges that Mr Ashby had with his friends and others in the period prior to the commencement of these proceedings is the lack of any complaint by him of feeling sexually harassed. And his friends’ texts had no words of comfort for Mr Ashby as a victim of some traumatic experience of that kind. The exchanges between Martin, Mr Nagle, Ms Hubbard and Mr Ashby on 3 and 4 February 2012 do not read like those concerning a man claiming to feel sexually harassed or emotionally distressed by such conduct. Rather they read as if the participants were discussing the political ramifications of Mr Ashby revealing material that was sexually and politically embarrassing and that would compromise Mr Slipper and his position as Speaker if it appeared in the public domain. At least initially, Mr Ashby was contemplating that Mr McArdle, an LNP politician, would use the text messages against Mr Slipper’s political interests – hence his text that this did not “empower me once the information is passed on ... Will I be rewarded or condemned?”. Read in its context with all his texts, I am satisfied that if Mr Ashby were the victim of sexual harassment he would not have speculated with his friend in this way about whether he would be rewarded by revealing it.
Mr Ashby’s defiance of Mr Slipper
The exchange of messages on 26 February 2012 complained of (see [19(5)] above) centred on Mr Slipper remonstrating with Mr Ashby because of his failure to consult Mr Slipper about helping LNP candidates in the State election campaign. Mr Slipper led up to the discussion by texting that a third person had “thought you were a nice twink!” I infer that was a reference of a homosexual nature. Mr Ashby had made a video for one of the LNP candidates whom he considered to be a friend. Mr Ashby forcefully asserted in his texts to Mr Slipper that he would not turn his back on friends who had not turned their back on him and that Mr Slipper needed “to respect my decisions outside of work, the same as I respect your decisions”. Mr Slipper replied “Happy dreams. In this job you are no longer a free agent and I get held to political account for whatever you do”. Mr Slipper explained that he required to be told about whom Mr Ashby proposed to work for outside of his job. Mr Ashby responded:
“You don’t get held to political account for my private life Peter. I will not have my private life managed. I would not bring you into disrepute thru my actions. If I felt my actions would have an impact on u or the speakers role I would resign. I am proud of the fact I took on this role against all advice from the LNP. I am as independent as you in my right to make decisions.” (emphasis added)
Mr Slipper responded that that was unreasonable and that if Mr Ashby intended to assist his political enemies, which was his right, he owed it to Mr Slipper to inform him so that Mr Slipper could sort out their respective positions. Mr Ashby replied that this issue should be discussed in person because text messaging did not give a reasonable opportunity to both of them to state their cases. Mr Ashby’s texts asserted that he was working strongly for Mr Slipper’s re-election. He asserted that he was only giving assistance towards State candidates and had “no respect for Mal Brough and never will”.
The debate continued on 26 February 2012 in further text messages with Mr Ashby showing no inhibition in making his own views clear and standing his ground. For example, he remonstrated with Mr Slipper stating: “It’s unreasonable of u to have this conversation on text. I’m actually angry u would do this. It makes for a jolted conversation and doesn’t come across reasonable”. Mr Slipper responded that he liked Mr Ashby but that Mr Ashby had to understand that he would:
“… get upset when you play with my enemies and keep me in the dark. It is not what I expect of someone I considered I am close to. If you find this intolerable please discuss.” (emphasis added)
The exchanges continued for some time further. Those texts demonstrated that Mr Ashby had no difficulty whatsoever in firmly putting forward his point of view and, in refusing to accept instructions from Mr Slipper on matters to do with Mr Ashby’s conduct, even though that conduct may have impacted, or been seen to impact, on Mr Slipper’s public position. It was self-evident, if Mr Ashby were known to be assisting persons who were politically hostile to Mr Slipper, that this could be seen to reflect badly, in political terms, on Mr Slipper and that others, as well as Mr Slipper, could see that conduct as disloyal to Mr Slipper. It was reasonable for Mr Slipper to insist on knowing what Mr Ashby was doing and to approve it before Mr Ashby made a public demonstration that, while he was a staff member of Mr Slipper, he was publicly known to be working for LNP candidates or causes.
The point of these exchanges which came most powerfully across was that Mr Ashby felt not the slightest inhibition in putting Mr Slipper in, what Mr Ashby considered, his place. It is difficult to believe that while Mr Ashby felt no inhibition in firmly and forcefully insisting that he was entitled to engage in political activities when Mr Slipper sought to restrain him from doing so, Mr Ashby would have felt inhibited in complaining to Mr Slipper about other conduct that he, Mr Ashby, did not appreciate. The contemporaneous documents in evidence do not reveal that Mr Ashby felt or expressed to Mr Slipper or any of his friends any such inhibitions or any distress occasioned by the conduct he complained of in his originating application. Similarly, the texts of 1 February 2012 showed that Mr Ashby felt able to decline the suggestion of a “closer” relationship.
The dispute over Mr Ashby’s political activities concerned a matter about which Mr Slipper would have been entitled to terminate his services had he considered Mr Ashby to have been relevantly disloyal or acted in an unsatisfactory way. Mr Ashby’s resolute defiance of Mr Slipper in respect of his conduct of the political aspects of his private life makes it highly unlikely that Mr Ashby would have felt any inhibition in putting Mr Slipper in his place in respect of any activity that he, Mr Ashby, felt was inappropriate in a sexual respect. It is also highly unlikely that Mr Ashby felt threatened that he would lose his job if he complained to or rebuffed Mr Slipper in respect of any conduct of a sexual nature that Mr Ashby found unwelcome. After all, Mr Ashby had put his job squarely on the line when he debated his asserted right to engage publicly in political activities in support of LNP candidates at the State election while remaining a member of Mr Slipper’s staff. Additionally, Mr Ashby continued to work for particular State LNP candidates up to the 24 March 2012 election, albeit with Mr Slipper’s acceptance. Right after that election, he secretly began actively working against Mr Slipper while remaining employed, despite his assertion in his text quoted at [39] above that he would resign in such circumstances.
During the course of the proceedings, Harmers served an affidavit made on 20 July 2012 by Dr Jonathan Phillips, a clinical associate professor and consultant psychiatrist. Dr Phillips annexed to his affidavit a medical report he had made in respect of Mr Ashby for the purposes of the proceedings. In his report, Dr Phillips referred to “the very large power differential between Mr Ashby and Mr Slipper”. He asserted that Mr Slipper was in a powerful position and that Mr Ashby “would readily be placed in a compromised situation, from which there was no ready path of escape”. In submissions Mr Ashby placed some emphasis on Dr Phillips’ identification of this power differential.
I do not accept that Mr Ashby felt in any way inhibited in his dealings by a “power differential” between him and Mr Slipper. The text exchanges of 26 February 2012 demonstrate that no such imbalance was perceived by Mr Ashby. Those exchanges occurred well after most of the allegations of sexual harassment had taken place. The originating application asserted that in these exchanges Mr Slipper appeared to question Mr Ashby’s loyalty and was attempting to control his actions. A reasonable person in Mr Slipper’s position would be entitled to express such concerns having regard to Mr Ashby’s conduct. While Mr Slipper may have introduced that discussion using what I infer was a sexualised reference by a third person about Mr Ashby, both of them used sexualised and, on occasions, far more vulgar terminology in their communications. Sexual references in the texts must be considered having regard to the terms of a relationship in which both men used such means of communicating with one another in what they (or at least Mr Slipper) thought, at the time, were private communications that would never be publicly put forward in open court, as they have been.
As Dr Phillips observed, on several occasions Mr Ashby joined in text conversations with Mr Slipper that were “somewhat provocative and sexualised”. He observed, and I find, that Mr Ashby on occasion “added to the frission of the interchange”. Thus, in context, the mere fact that Mr Slipper commenced his text discussion on 26 February 2012 of Mr Ashby’s work for LNP candidates with a sexualised reference, is not necessarily demonstrative of sexual harassment or victimisation. In all the circumstances I am not persuaded that it was on this occasion. Had Mr Ashby been upset by Mr Slipper’s reference to another person saying he was a “twink” there is no doubt he would have remonstrated then and there with Mr Slipper as he forcefully did for some time in the later text exchanges on 26 February 2012 on Mr Ashby’s political activities.
Mr Ashby asks to go overseas with Mr Slipper
During late March and April 2012, Mr Slipper was to lead a Parliamentary delegation on a visit to a number of countries, including Hungary. Mr Slipper was expected to be overseas from 24 March 2012 to 22 April 2012. In early to mid March 2012 Mr Ashby proposed that he accompany Mr Slipper on a visit to Hungary, at Mr Ashby’s own expense. On 16 March 2012, Mr Slipper emailed Mr Ashby saying that it was not possible for Mr Ashby to accompany him on the trip writing: “Sadly, the excellent … suggestion you made seems too hard in an entitlement (even tho you paying) and PR and departmental/delegation sense. Gather it would be perceived as odd/risky.” Mr Ashby replied “That’s no worries. It was only a wild idea, but sometimes wild ideas become reality”.
It is not credible that when Mr Ashby asked Mr Slipper if he could accompany him to Hungary at his own expense that Mr Ashby had any real concern about sexual harassment or “questionable conduct in relation to travel” on Mr Slipper’s part. Such a trip had every potential to expose Mr Ashby to one or both categories of the alleged misconduct he subsequently complained of. If Mr Ashby were seriously concerned about either of these matters at that time, it defies belief that he would have volunteered to pay his own way to accompany Mr Slipper rather than stay in Australia away from the supposed source of his harassment and concerns. This episode demonstrates the likelihood that Mr Ashby’s case involves an adventitious use by him of incautious text messages by Mr Slipper for the predominate purpose alleged by Mr Slipper.
The 20 March incident
Based on Mr Ashby’s history to him, Dr Phillips gave a different account to that in the originating application of the incident on 20 March 2012 when Mr Slipper said: “Can I kiss you both”. Dr Phillips recorded that Mr Ashby said that he believed that he had been adversely affected in the longer term by Mr Slipper saying: “He wished to kiss the applicant and his female co-worker” and that Mr Slipper looked at Mr Ashby when he made the comment.
On 20 March 2012, Mr Slipper was excited by a successful tactic devised by both Mr Ashby and Ms Doane that had deflected Mr Lewis from running an adverse story about Mr Slipper. Mr Lewis said in a interview with Chris Smith on Radio 2GB during the week after 20 April 2012: “I have been reporting on Mr Slipper and his abuse of the public purse for about two years”. Mr Ashby and Ms Doane would have been well aware of the attitude of Mr Lewis in his reporting on Mr Slipper by 20 March 2012. Mr Slipper forwarded onto Mr Ashby a text on 20 March 2012 from Mr Lewis that read: “Thanks for the great publicity … we r not running the story tomorrow. Cheers Steve”, to which Mr Ashby responded: “That’s priceless!!!”. The next day Ms Doane emailed Mr Slipper and Mr Ashby saying that Mr Lewis had left her a message saying that he would no longer be sending her emails and:
“… is clearly unhappy. I feel no obligation to speak to him but I want to be assured I’m not a victim of his attacks, so unsure what can be done?”
Would appreciate your thoughts on the way forward as he is a muck-raker and I do not need him to go after me in any way as you can imagine.”
Mr Ashby responded: “Love it! You’ve backed him into a corner and he has nowhere further to go”. Ms Doane added that Mr Lewis appeared to be disappointed.
Mr Ashby had alleged in the originating application that he was alone when Mr Slipper made the remark about kissing “you both”. Dr Phillips’ recording of the incident is inherently more likely to be correct. While perhaps an odd way of expressing his appreciation, Mr Slipper’s conduct occurred in the presence or hearing of Ms Doane and reflected his pleasure at what she and Mr Ashby had each achieved in thwarting whatever they all feared that Mr Lewis may have had in mind. If it were capable of being seen as sexual harassment, it was at most a trivial incident. And, had he felt any genuine discomfort, Mr Ashby would have remonstrated with Mr Slipper then and there. Once again, there is no mention of this incident, let alone any distress Mr Ashby felt from it, in the text messages with his friends.
It is difficult to treat that occasion as a factor that crystallised Mr Ashby’s decision to bring these proceedings. Mr Ashby argued that he formed the view, upon reflection from about 1 February 2012 on, that he should take proceedings claiming that Mr Slipper sexually harassed him. Mr Ashby argued that he had taken his time in arriving at this position, having sought advice from friends such as Mr McArdle, Ms Hubbard, Mr Nagle and Martin, and that ultimately he found his work position to be intolerable. That characterisation is unpersuasive given that between 2 February and 20 March 2012, only three incidents occurred of which Mr Ashby complained; namely Mr Slipper’s use of the word “twink” and the discussion that took place in the text messages on 26 February, the alleged stroking of Mr Ashby’s arm on 1 March and the “kiss” remark on 20 March.
The text messages revealed that particularly on Friday, 23 March 2012, the relationship between Mr Slipper, Mr Ashby and Ms Doane became strained, Mr Ashby had been out of contact and was not responding to Mr Slipper to his mobile phone. No doubt Mr Slipper was preparing to go overseas the next day and felt frustrated about Mr Ashby’s lack of response. Mr Ashby sent Ms Doane a text message at 7.50 pm that night stating: “I just want to get Peter off my back. He’s being so weird tonight! Weird beyond weird!! Ms Doane responded: “You have no idea!!! 6.22 and all sorted”. Mr Ashby responded: “He’s asked me for a complete report. He’s obsessive and ridiculous. You’re sick and I’ve been in back to back meetings”. Later that night she texted Mr Ashby: “He has crossed the line with me”.
Mr Slipper goes overseas
Mr Slipper left for overseas on 24 March 2012, the same day as the Queensland State election. By late that night it was clear that the LNP had been elected to be the State Government with a large majority. On 26 March 2012 Mr Ashby sent a text message congratulating Mr McArdle on his role in the campaign and stated:
“I’ve decided to press ahead with what I spoke to u about some weeks ago. It’s going to the biggest challenge of my life, but this man needs stopping. He’s hurt too many people. I appreciate your comments about not doing it, but I have the strength to go thru with it and regardless of the outcome I know I’ll have done the right thing. I have no doubt we’ll chat soon.” (emphasis added)
On 28 March 2012, Mr Ashby exchanged some texts with Ms Doane that must have been preceded by two prior events, one being a conversation in which he had asked her to look at Mr Slipper’s electorate diaries for 2009 and provide him with copies of some portions (4/244-245). The other prior event must have been Mr Ashby making contact with Mr Brough to indicate his preparedness to undermine Mr Slipper. That became apparent when Mr Ashby began exchanging texts the next day with Mr Brough about the diary entries.
On 29 March 2012, Mr Ashby exchanged texts with Ms Doane telling her that he did not want her to be stressed, that he had “so much support” and that she did as well. He added: “We’ve been chosen to take this journey for some bizarre reason”. The texts referred to the need for each of them to remain strong and to an expectation of hearing from a woman called “Jackie” or a man called “Murray”. One of the texts Ms Doane sent to Mr Ashby said: “I need to secure my deal or will need to work a plan B”.
Later on 29 March 2012, Mr Brough exchanged texts with Mr Ashby. Mr Brough asked whether Mr Ashby could email a document because, what Mr Ashby had sent is “hard to read”. Mr Ashby said that he would email it and Mr Brough later responded: “Will need to get daily printouts tomorrow with greater detail”. I infer that this exchange related to Mr Brough having been sent, and later emailed, copies of printouts from Mr Slipper’s electorate diary from 2009 made by Mr Ashby or Ms Doane. Earlier that day, Mr Lewis had emailed Mr Brough questions concerning Mr Slipper which he said would be:
“a start. I would be fascinated to see what his diary said for these dates, they involve some large outlays, and the destinations were … er …. unusual!!”
Mr Lewis’s email asked how many times Mr Slipper had travelled to New Zealand since July 2010 and asked for diary extracts for three date ranges in 2009 and 2010. Later on 29 March 2012, Mr Lewis emailed Mr Brough seeking further information on a date range in late 2009.
From around 29 March 2012, Mr Ashby also began communicating directly with Mr Lewis. Mr Ashby had been told by one of his friends who had worked on it that Mr Lewis was interested in investigating Mr Slipper’s 2010 election campaign. On 29 March 2012, Mr Ashby forwarded to Ms Doane his friend’s email with Mr Lewis’ contact details. Ms Doane responded in an email to Mr Ashby on 30 March 2012:
“Awesome – what a tangled web this all is!?!?!!
My batteries are recharged as is my resolve to do the right thing for all of us. Bring on the future w[ith] focussed careers with people we can be proud to affiliate our names.”On about 29 March 2012, Mr Brough telephoned Mr Russell QC and said that he had been contacted by a person who worked in Mr Slipper’s office and had raised a number of issues with Mr Brough, including sexual harassment and the person’s view that there had been a misuse of entitlements. Mr Brough told Mr Russell QC that the staffer did not think that Mr Slipper had behaved appropriately towards him and wanted to get some legal advice about what he should do. Mr Russell said that he would think carefully about the matter because he was principally a tax lawyer and did not know much about sexual harassment legal issues. He also said that because of his political position, he would feel uncomfortable about acting for the staffer professionally but was prepared to give him some general advice.
Mr Russell QC explained in his evidence that he was not a particularly close colleague of Mr Brough and that they had taken opposite sides in the debate on forming the LNP, although, more recently, they had become closer acquaintances. During the conversation Mr Russell QC said that he could charge a nominal amount for seeing the staffer (still unnamed) of, say, $1.00. He said he also would speak to a junior counsel in his Sydney chambers who had acted in another highly publicised sexual harassment claim involving David Jones’ former chief executive.
Mr Brough met with Ms Doane on Friday, 30 March 2012. On that occasion, among other matters, he agreed to assist her in seeking employment with the new Queensland LNP government. This emerged from an email she sent to Mr Brough on 2 April 2012 attaching an updated resume for the new Government’s consideration and nominating her portfolio preferences in working for the new Ministers, concluding “I appreciate your consideration of my interest in serving the LNP in government”.
On 30 March, Mr Ashby texted one of his friends, Glen, saying that he was hopeful “this all comes out within 2 weeks. I’m over the suspense in not having a lawyer to back me right now. My new lawyer will be back in a week.”
Mr Ashby also sent a text on 30 March 2012 to Ms Doane about the success “Jackie” had had in arranging a lawyer for $1, being Mr Russell QC. (I infer that he was the lawyer referred to in the text to Glen, since the meeting with Mr Russell QC occurred on 6 April 2012.) Also on 30 March, Ms Doane texted Mr Ashby saying that she was very happy with the chat that she had had with “Jackie”. Ms Doane also texted that Mr Ashby should smile and “feel loved, you are very courageous my friend. Proud of what u r doing”.
Later on 30 March Ms Doane texted Mr Ashby encouraging him to contact Murray, saying:
“You need to keep everyone on side and have options. Not sure if State will be your future, or that you’ll want it to be, so the more options the better. I really want the Sports portfolio that is my passion and I know it on many levels so I would be perfect …” (emphasis added)
and asked for Mr Ashby to send her Jackie’s email address. Later that night, Ms Doane texted Mr Ashby saying that she had just been informed that:
“State staffing isn’t the decision of the Minister … do you think Jackie has influence? I would think yes?!?”
Mr Ashby said that he had no idea of that rule but:
“I bet the likes of Jacki and Bruce McIver [the State President of the LNP] have some influence. Jacki is definitely a key player in the party these days. To arrange a lawyer for $1 of that calibre is a big thing in my mind.” (4/1471)
Ms Doane responded that she agreed that arranging a lawyer of Mr Russell QC’s calibre was a big thing and observed:
“It is also due to the barrister’s ties to the LNP and the way this will tip the govt to Mal’s [Brough] and the LNP’s advantage. Definitely a good move for us to meet with him so he gets to know us rather than w the black mark from being w Peter!!” (emphasis added)
Mr Ashby responded:
“I totally agree. We are fixing the black mark … You don’t have to thank me Karen. I think we’re equally supportive for one another. We compliment one another nicely. I’m very pleased u have been on board even though we’ve both been thru so much shit.” (emphasis added)
Ms Doane asked Mr Ashby to provide details of Mr Brough’s email address so that she could send through her updated curriculum vitae and she offered to help Mr Ashby complete his. Mr Ashby’s commentary to Mr Harmer asserted that he did not begin these proceedings “to earn favour with any political party or remove any ‘black marks’”. I do not accept that assertion. It is in the teeth of contemporaneous documentary evidence including his total agreement with Ms Doane in the texts just quoted above.
On 2 April 2012, Mr Ashby texted Ms Doane that he had a most lengthy telephone conversation with Mr Lewis who would fly up on Wednesday, 4 April. The next day Ms Doane sent a text to Mr Ashby saying “I friggin loath Peter Slipper!!!”. She sent another text message later that day saying that she wanted to “balance” Mr Ashby’s harassment charge with one of her own concerning Mr Slipper’s behaviour towards her which she considered unprofessional and indicated that she would think about contacting a lawyer for herself. Mr Ashby responded in a text saying he would contact Mr Brough again that day, failing which he would make contact with someone himself. Thus, Mr Ashby was using Mr Brough as the channel through which he was seeking, at that time, to obtain legal advice as well as a means of passing on information to Mr Lewis that could be used to damage Mr Slipper.
Next, on 2 April 2012, Ms Doane wrote to Mr Ashby that Mr Brough had forwarded her curriculum vitae and told her that she should receive a call within the next day or two and that if she was unsuccessful she should contact him again. As noted in [62] above, Ms Doane had emailed Mr Brough saying: “I appreciate your consideration of my interest in serving the LNP in government”. She offered to assist Mr Ashby in putting his curriculum vitae together and he said that he would appreciate her doing it. They arranged to meet for dinner on 4 April.
Mr Harmer said that his firm was first contacted by Mr Ashby on 3 April 2012 and that Mr Ashby first met with Harmers on 10 April 2012.
Mr Ashby meets Mr Lewis
On 4 April 2012, Mr Lewis met with Mr Ashby at noon in a café on the Sunshine Coast in Queensland having previously arranged the rendezvous. Following their meeting, Mr Ashby sent Mr Lewis some details about a person in nearby Maroochydore and they also exchanged the following text messages.
Mr Ashby: “Spoke to Richard about car. Richard said he has travelled in the car but was instructed to book the car on two occasions when the pope was in australia. The car was apparently used twice for different pope ceremonies. Good luck.”
Mr Ashby: “That should have been hasn’t travelled in the car.”
Mr Lewis: “Ta Abt to hop on plane Will call later We will get him!!”
Mr Ashby: “Great Thanks for coming up”.
Mr Lewis: “I am here to help!!!” (emphasis added)
Mr Harmer gave evidence that Mr Lewis had informed him that his remark (emphasised in the above exchanges) “We will get him!!” referred to locating the hire car driver so that he could corroborate some material. I do not accept that assertion. That is not how the text messages read. In my opinion the reference is clearly to Mr Ashby and Mr Lewis “getting” Mr Slipper, not to Mr Lewis finding a driver. Mr Ashby had been interviewed by Mr Lewis from noon. The texts were sent from about 3.40 pm. I infer that Mr Ashby had revealed or expanded on material concerning his sexual harassment claims and Mr Slipper’s use of his travel entitlements, including the Cabcharge allegations. These stories would be sensational news if they were published and would have a very significant adverse effect on Mr Slipper and his reputation. Mr Lewis had been a journalist whom Mr Slipper, Mr Ashby and Ms Doane considered was hostile to Mr Slipper’s interests and had been pursuing Mr Slipper in the press over, among other things, his use of travel entitlements. I am not satisfied that Mr Lewis was texting Mr Ashby, while he was boarding a plane, about “getting” a driver. It is difficult to see why Mr Lewis would use the words “get him” rather than “find him” if he was talking of locating a driver. Moreover, Mr Lewis’ next comment: “I am here to help!!!”, in response to Mr Ashby’s thanks for his visit, again suggests collaboration with Mr Ashby and Ms Doane in damaging Mr Slipper. I find that on 4 April 2012, Mr Lewis referred to Mr Slipper when he wrote: “We will get him!!”.
The meeting with Mr Russell QC
Mason J cited a passage from the judgment of Holroyd Pearce LJ in Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374 that made a similar point: Harrison 149 CLR at 302. His Lordship said:
“When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean.”
Here, the bare facts pleaded in the originating application about Mr Slipper handing over three and multiple incomplete signed Cabcharge vouchers on three different occasions, coupled with both the description of this as “questionable conduct” and the statement that Mr Ashby intended to report these matters to the police, invited an ordinary reasonable reader of the originating application to conclude that Mr Ashby (and the pleader) was alleging that Mr Slipper was guilty of misuse of Commonwealth funds, as indeed Mr Lewis reported. The reasoning of the Privy Council in Jones v Skelton [1963] 63 SR (NSW) 644 at 651 and Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H-364A explains why an ordinary reasonable reader of the Cabcharge allegations in the originating application would conclude that what they were really asserting was that Mr Slipper was guilty of misuse of taxpayer funded Cabcharge vouchers. Their Lordships said:
“The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer... did not care or did not dare to express in direct terms.”
If Mr Slipper had done nothing legally wrong in handing over signed, but incomplete, Cabcharge vouchers, for example for the reason Mr Brough gave during the meeting with Mr Russell QC on 6 April 2012, then Mr Ashby had no basis to complain of a breach of contract based on the Cabcharge allegations. And, as I have found Mr Ashby’s conduct in asking, at his own expense, to accompany Mr Slipper on his official visit to Hungary some time after the last of this allegedly “questionable conduct” had occurred, is completely inconsistent with any honest belief of Mr Ashby’s that Mr Slipper had committed any legal wrong by engaging in the conduct the subject of the Cabcharge allegations.
The assertion that Mr Ashby intended to report the conduct to the police was irrelevant to any cause of action he may have had, but was included for the purpose of creating an allegation tantamount to criminality against Mr Slipper. However, Mr Ashby and Mr Harmer did not plead any criminality directly, for they stopped at the characterisation of “questionable conduct”. That was done with both of Mr Ashby and Mr Harmer knowing and intending that the media could and would report the allegations in the originating application and so damage Mr Slipper’s reputation and credibility. It came on the heels of Mr Ashby’s intention to file the originating application after Mr Lewis had set the scene by earlier publishing stories (on 16 April 2012) damaging to Mr Slipper concerning other incidents related to his use of travel entitlements.
Accordingly, the inclusion of the allegation that Mr Ashby intended to report the Cabcharge conduct to the police was an abuse of the process of the Court. As I have noted, had the pleading not added the reference to Mr Ashby’s intention it may not have been an abuse of process.
The propriety of Mr Harmer making the 2003 and Cabcharge allegations
During the hearing, I raised concern about the propriety of Mr Ashby and Mr Harmer pleading in the originating application each of the 2003 allegations and the assertion that Mr Ashby intended reporting Cabcharge allegations to the police. I referred the parties to the well known principles that apply to the use by a member of the legal profession of the absolute privilege given to statements made in open court or in court documents identified in Clyne v NSW Bar Association (1960) 104 CLR 186 at 200-201. There, Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ said:
“Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side.” (emphasis added)
Those statements are apposite to the contents of an originating application and a pleading in a jurisdiction such as in this Court where the Rules give a public right of access to such documents: see my reasons in Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at 299 [29]; see too Fraser-Kirk v David Jones Ltd (2010) 190 FCR 325 at 340 [50]-[51] per Flick J. A lawyer cannot properly make an allegation on originating application or pleading in this Court that departs from the standard of propriety set by the High Court in Clyne 104 CLR at 200-201. A lawyer cannot open a case in court by making statements that may have ruinous consequences to the person attacked that the lawyer cannot substantiate or justify by evidence. Similarly, a lawyer cannot plead such statements and assert that they are supported by sworn or affirmed evidence, when he or she does not have a reasonable basis for making such an assertion.
The Cabcharge allegations as a whole (including the assertion that Mr Ashby intended to report Mr Slipper’s conduct to the police) conveyed the imputation that Mr Slipper was guilty of misusing Commonwealth funds. The assertion of intention to report to the police was irrelevant as well as serious. It was calculated to add to the damage Mr Slipper in his office as Speaker and as a Member of the Parliament that the other Cabcharge allegations conveyed. Mr Harmer did not have a proper basis for including the assertion that Mr Ashby intended to report the other allegations to the police: see too Clyne 104 CLR at 201; Rule A.36 of the Professional Conduct and Practice Rules.
Mr Harmer was aware how damaging the making of each of the 2003 and Cabcharge allegations as a whole would be to Mr Slipper and his reputation. As he appreciated, this would be a “high profile workplace case” that would attract publicity about Mr Slipper who was a “high profile respondent”. The imputation of not just misuse, but criminal misuse, of the Cabcharge dockets was obviously likely to damage Mr Slipper. So too were the 2003 allegations. The deployment by Mr Harmer in the originating application of the scandalous and irrelevant 2003 allegations and the assertion that Mr Ashby intended to report the Cabcharge allegations to the police, had no legitimate forensic purpose. No lawyer acting responsibly could have included either of those matters (leaving aside what would have been the position in respect of the Cabcharge allegations had the reference to the intention to report them to the police been omitted) in the originating application to make what would become a public attack on Mr Slipper when it was filed: Clyne 104 CLR at 200-201. Their inclusion made the originating application an abuse of the process of the Court.
The abandonment of the 2003 and Cabcharge allegations
Mr Slipper also contended that Mr Ashby’s abandonment of the 2003 and all Cabcharge allegations on 15 May 2012 when the statement of claim was filed, demonstrated that by then those allegations had served their intended purpose of harming Mr Slipper. Mr Slipper relied on the absence of any evidence on Mr Ashby’s part as to why the allegations had been made, only to be later withdrawn.
Mr Harmer gave evidence seeking to explain why he had pleaded those allegations and why he considered that doing so was consistent with his obligations to the Court as a lawyer. Mr Ashby contended, based on Mr Harmer’s evidence, that his solicitor had a subjective and objective basis on which to found the Cabcharge allegations. He argued that:
“Mr Harmer believed that conduct which could be regarded (objectively and subjectively) as unfairly and improperly implicating an employee in seriously wrongful conduct, could amount, on the state of the authorities, to the pleaded breach of the implied term of trust and confidence;”
Mr Ashby asserted that breach of the trust and confidence term can arise from a series of events over time, each event being a “straw” placed on the camel’s back. He argued that his assertion in the originating application that he intended reporting the Cabcharge conduct to the police had to be considered in this context. He also argued that the Cabcharge allegations should be viewed as relevant to the breach of the safe system of work term of Mr Ashby’s contract: see [20(1)(d)] above.
I reject those submissions. As Dyson LJ explained in Omilaju [2005] 1 All ER at 83 [22], the test of whether an employee’s trust and confidence has been undermined is objective. Mr Ashby’s history given to Dr Phillips was simply that Mr Ashby believed that Mr Slipper’s actions “may have been unlawful”. Mr Ashby did not have any genuine disquiet when he raised the Cabcharge allegations in the originating application, for the reasons I have given.
Even if I am wrong and Mr Ashby did have some disquiet, that could not have justified him or Mr Harmer pleading Mr Ashby’s asserted intention to go to the police with his concerns. By pleading that damaging assertion, Mr Harmer breached his professional obligation not to misuse his privilege to make allegations under absolute privilege in Court documents. Mr Harmer knew that Mr Ashby had the right, if not the duty, to go to the police with any concerns he genuinely had about Mr Slipper’s use of Cabcharge vouchers. But, the pleading of Mr Ashby’s intention to do so had no legitimate forensic purpose. His inclusion of irrelevant assertion of Mr Ashby’s intention to go to the police in the originating application was an abuse of the process of the Court for the same reasons as was the submission of the barrister, Peter Clyne in open court that a solicitor, Mr Mann, had been guilty of professional misconduct. The High Court said of that in Clyne 104 CLR at 201:
“If the solicitor [against whom Mr Clyne made the allegations] was guilty of misconduct, the proper course was to report him to the Law Institute. It is difficult to avoid the conclusion that the course adopted was chosen because of the opportunities which it offered for a public attack on Mr. Mann.” (emphasis added)
Here, it is difficult to avoid the conclusion, that I draw, namely that the inclusion in the originating application of the assertion that Mr Ashby intended to report the Cabcharge allegations to the police, offered him and Mr Harmer the opportunity to make a more serious public attack on Mr Slipper than would have been the case merely by making the balance of the Cabcharge allegations. That attack, in the form it was made, was a misuse of Mr Harmer’s privilege as a lawyer. The use of the Court’s process to make that attack in that form was an abuse of process.
The Genuine Steps Statement
There was no basis for Mr Harmer to assert in the genuine steps statement that the matter was so urgent that genuine steps to resolve it could not have been undertaken before the proceedings were filed. The inclusion of the 2003 and Cabcharge allegations in the originating application certainly inflamed the matter, but that was Mr Ashby’s and Mr Harmer’s doing. The originating application did not make any allegation that Mr Ashby had been “victimised” in the period of more than two months after 1 February 2012. Moreover, the subsequently filed statement of claim pleaded no acts of victimisation. As at 20 April 2012, Mr Ashby was nowhere near ready to litigate the matter at a final hearing. The originating application pleaded that his damages claim for breach of contract would “be calculated following the receipt of expert medical evidence”. He only first attended on Dr Phillips on 19 June 2012, two months after the asserted urgency in the genuine steps statement. Mr Ashby had been actively intending to bring the proceedings since at least 26 March 2012, but only in his good time and after Mr Lewis had gone to press first (on 16 April 2012) with other allegations against Mr Slipper.
As the Commonwealth identified, a range of alternative remedies were available to Mr Ashby. These included his rights to:
·complain under the Bullying, Harassment and Workplace Violence Policy and Procedure for MOPS Act employees;
·complain to the Ministerial and Parliamentary Services Division of the Commonwealth Department of Finance;
·apply to Fair Work Australia under s 372 of the Fair Work Act 2009 (Cth) to deal with the dispute by conducting a conference;
·refer the matter to the Department of Finance and Deregulation under cl 74.4(c) of the Commonwealth Members of Parliament Staff Enterprise Agreement 2010-2012;
·complain to the Australian Human Rights Commission and seek conciliation there.
None of these courses would have resulted in a public vindication of Mr Ashby in respect of his complaint of sexual harassment against Mr Slipper. In addition, only the Court could impose a pecuniary penalty or make an order under s 545 of the Fair Work Act that Mr Slipper undergo counselling and attend training in the area of anti-discrimination, as Mr Ashby sought in his originating application (OA 52). If any of the alternative courses of action had been pursued, there is no evidence to suggest that it would not have provided an effective resolution of any grievance Mr Ashby had against Mr Slipper. And, if there were any substance in his allegations, any such procedure could have offered the possibility that steps would be taken to prevent any repetition.
The existence of other alternatives to Court proceedings cannot deny the right of any person to seek the resolution of any bona fide dispute by a Court including under the Fair Work Act. However, these proceedings do not fall into such a category. The maximum damages that the Court can award an employee for any non-economic loss under s 45(4) of the Safety Rehabilitation and Compensation Act 1988 (Cth) is $110,000. Any injury suffered by Mr Ashby would have been sustained by him as an employee of the Commonwealth in the course of his employment. As I have found, the contemporaneous texts messages and other documents do not reveal any trace of psychological or emotional suffering or complaint by Mr Ashby arising from any sexual harassment. Mr Ashby’s request in early to mid March 2012 to accompany Mr Slipper overseas, at Mr Ashby’s own expense, reinforces the obvious lack of any, or any perceivable substantive damage that he may have suffered from any inappropriate conduct by Mr Slipper. In any event, the $50,000 paid by the Commonwealth ensured that Mr Ashby recovered more than he would have been awarded in damages and pecuniary penalties against both the Commonwealth and Mr Slipper if he had established his claims relating to the relatively trivial incidents of sexual harassment he pleaded.
CONCLUSION
Having read all of the text messages on Mr Ashby’s mobile phone, as Mr Ashby’s senior counsel invited me to do, 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 exists. Mr Ashby began planning that attack at least by the beginning of February 2012. 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”: [66]. It may be a coincidence that Mr Ashby suggested to Mr Slipper the idea of becoming Speaker just as Mr Brough began to move towards challenging Mr Slipper for LNP pre-selection for his seat and Mr Ashby ended up in an alliance in late March 2012 with Mr Brough to bring down Mr Slipper after he became Speaker. It is not necessary to make any finding about this or about whether Mr Slipper did sexually harass Mr Ashby in any of the ways alleged. It is also not necessary to consider whether these proceedings are “vexatious proceedings” within the meaning of r 6.02 or if that expression has a different meaning in r 26.01(1)(b) under which the Court can give summary judgment if “the proceeding is frivolous or vexatious”.
For the reasons above, I am satisfied that these proceedings are an abuse of the process of the Court. The originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper. It contained the scandalous and irrelevant 2003 allegations and assertion that Mr Ashby intended to report to the police Cabcharge allegations. To allow these proceedings to remain in the Court would bring the administration of justice into disrepute among right-thinking people and would be manifestly unfair to Mr Slipper: Jeffery & Katauskas 239 CLR at 93 [28]. Even though Mr Ashby has now abandoned the 2003 and all the Cabcharge allegations, the features that I have criticised did the harm to Mr Slipper that Mr Ashby and Mr Harmer intended when those allegations were included in the originating application. A party cannot be allowed to misuse the Court’s process by including scandalous, irrelevant or damaging allegations knowing that they would receive very significant media coverage and then seek to regularise his, her or its pleading by subsequently abandoning those claims.
Sexual harassment of anyone, including an employee such as Mr Ashby, is a violation of the person’s human dignity and rights. The Court must always be available for the hearing and determination of bona fide proceedings to vindicate and protect those rights. But for the reasons I have given, Mr Ashby’s pre-dominant purpose in bringing the proceedings was not a proper one.
Even though I have not found that the combination was as wide as Mr Slipper alleged in his points of claim, the evidence established that there was a combination involving Mr Ashby, Ms Doane and Mr Brough of that kind. 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. Accordingly, I am satisfied that the exceptional situation that enlivens the Court’s power to dismiss (or stay) proceedings as an abuse has been proved to the heavy standard required: Williams 174 CLR at 529. The duty and power of the Court to protect its own processes require that I give effect to the findings I have made by dismissing the proceedings under r 26.01.
COSTS
Ordinarily, s 570(1) of the Fair Work Act limits the powers of a Court exercising jurisdiction under that Act to order a party to pay costs. However, the Court can make such an order where it is satisfied that the party instituted the proceedings vexatiously or without reasonable cause (s 570(2)(a)) or that the party’s unreasonable act or omission caused the other party to incur the costs (s 570(2)(b)). Initially, these proceedings were not brought solely under that Act because of the existence of the common law claims in contract against the Commonwealth. Those claims gave Mr Ashby a vehicle to make the 2003 and Cabcharge allegations against Mr Slipper, even though he was not liable in contract to Mr Ashby.
Mr Ashby began these proceedings as against Mr Slipper on Mr Harmer’s advice, in the “no costs” jurisdiction under the Fair Work Act. Mr Ashby and Mr Harmer determined to raise the stakes by including the 2003 allegations, the intention to report the Cabcharge allegations to the police and the assertion of there being sworn or affirmed “evidence” to support all the allegations in the originating application. Mr Ashby’s claims of sexual harassment involved relatively minor incidents. Those claims were only ever likely to attract only a very modest award of damages or other compensation (such as a pecuniary penalty) if Mr Ashby were successful. It is likely that by engaging Mr McClellan at $550 per hour plus GST, on top of Mr Ashby’s irrecoverable solicitor and client costs, would have resulted in Mr Ashby receiving virtually no damages or other compensation in his own pocket even if he were “successful”. He now has the $50,000 paid by the Commonwealth.
The power to make an order for costs is in the discretion of the Court once the factors in s 570(2)(a) or (b) have been satisfied. The power must be exercised judicially. Mr Ashby instituted the proceedings without reasonable cause because they were and are an abuse of the process of the Court. Additionally, his unreasonable acts of instituting and prosecuting the proceedings caused Mr Slipper to incur costs for the same reason. Mr Ashby should be ordered to pay Mr Slipper’s costs of the proceedings. Mr Slipper is entitled to an order for his costs of the proceedings subject to those being set off against the order for costs I made against him on 17 August 2012. If any special order for costs is sought in consequence of the orders I will make today either party may apply within 7 days.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 12 December 2012
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