Ashby v Slipper
[2014] FCAFC 15
•27 February 2014
FEDERAL COURT OF AUSTRALIA
Ashby v Slipper [2014] FCAFC 15
Citation: Ashby v Slipper [2014] FCAFC 15 Appeal from: Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 Parties: JAMES HUNTER ASHBY v PETER SLIPPER
MICHAEL DANIEL HARMER v PETER SLIPPER and JAMES HUNTER ASHBY
File number(s): NSD 22 of 2013
NSD 31 of 2013Judges: MANSFIELD, SIOPIS & GILMOUR JJ Date of judgment: 27 February 2014 Corrigenda: 24 March 2014
5 March 2014Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from decision to dismiss proceedings as an abuse of process – leave to appeal required – principles relating to appellate review – challenge to factual bases upon which proceedings classified as an abuse of process – whether or not improper collateral purpose for bringing proceeding – adverse inferences drawn by primary judge - whether solicitor has standing to appeal in relation to adverse findings made as to the conduct of a proceeding - whether the Court has duty to act in relation to a perceived abuse of process - inferences to be drawn from a failure of a witness to depose to matters in issue - application of the Ferrcom principle. Legislation: Fair Work Act 2009 (Cth) ss 340, 351, 372, 539, 540, 545, 550
Federal Court of Australia Act 1976 (Cth) s 24(1A), 37M(2)(e), Part VB
Federal Court Rules 2011 (Cth) rr 2.32, 6.02, 8.05(1)(a), 26.01, 34.05
Evidence Act 1995 (Cth) s 140
Civil Dispute Resolution Act 2011 (Cth) s 6
Legal Profession Act 1987 (NSW) s 57B
Revised Professional Conduct and Practice Rules 1995 (NSW) rr A.35, A.36, A.37
Members of Parliament (Staff) Act 1984 (Cth)
Australian Human Rights Commission Act 1986 (Cth) s 46PO(1)Cases cited:
AJ v The Queen (2011) 32 VR 614
Ashby v Commonwealth of Australia [2012] FCA 640
Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475
Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297
Axon v Axon (1937) 59 CLR 395
Bale v Mills (2011) 81 NSWLR 498
Ballerini v Shire of Berrigan [2004] VSC 321
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179
Clyne v The New South Wales Bar Association (1960) 104 CLR 186
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Commonwealth v Construction Forestry Mining and Energy Union (2000) 98 FCR 31
Commonwealth v Fernando (2012) 200 FCR 1
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
CSR Ltd v Della Maddalena (2006) 224 ALR 1
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 299
European Hire Cars Pty Ltd v Beilby Poulden Costello [2009] NSWSC 526
Ex‑Christmas Islanders Assn Inc v Attorney General (Cth) (2005) 149 FCR 170
Ex parte Bucknell (1936) 56 CLR 221
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2011) 281 ALR 38
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Fox v Percy (2003) 214 CLR 118
Grace Worldwide Group v Roberts [2012] NSWSC 1111
Harmer v Oracle Corporation Australia Pty Ltd (2013) 299 ALR 236
Holloway v McFeeters (1956) 94 CLR 470
In re Securities Insurance Company [1894] 2 Ch 410 Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23
Jago v The District Court of New South Wales (1989) 168 CLR 23
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Jones v Dunkel (1959) 101 CLR 298
Jones v Skelton [1963] 1 WLR 1362
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
Libke v The Queen (2007) 230 CLR 559
Lithgow City Council v Jackson (2011) 244 CLR 352
Malik v Bank of Credit and Commerce International SA (In Compulsory Liquidation) [1998] AC 20
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Medcalf v Mardell [2003] 1 AC 120
Momibo Pty Ltd v Adam (t/as Marsdens Law Group) (2004) 1 DCLR (NSW) 316
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84
Offstage Support Association Inc v Time of My Life Pty Ltd(No 2) (2011) 284 ALR 362
Pearce v WD Peacock & Company Limited (1917) 23 CLR 199
Precision Plastics Pty Limited v Demir (1975) 132 CLR 362
Qantas Airways Ltd v Gama (2008) 167 FCR 537
R v Birks (1990) 19 NSWLR 677
R v Carroll (2002) 213 CLR 635
Re Markham, Markham v Markham (1880) 16 Ch D 1
Reid v New Zealand Trotting Conference [1984] 1 NZLR 8
Royal Aquarium and Summer and Winter Garden Society, Limited v Parkinson [1892] 1 QB 431
Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683
The Queen v Ireland (1970) 126 CLR 321
Three Rivers District Council v The Governor and Company of the Bank of England [2006] EWHC 816 (Comm)
White Industries (Qld )Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
Williams v Spautz (1992) 174 CLR 509
Witness v Marsden (2000) 49 NSWLR 429
Date of hearing: 2-3 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 458 Counsel for the Applicant in NSD 22 of 2013: Mr M B J Lee SC with Ms R Francois Solicitor for the Applicant in NSD 22 of 2013:
Counsel for the Respondent in NSD 22 of 2013:
Harris Freidman
Mr I M Neil SC
Solicitor for the Respondent in NSD 22 of 2013: Berry Buddle Wilkins
Counsel for the Applicant in NSD 31 of 2013: Mr D Pritchard SC with Mr M D Harmer
Solicitor for the Applicant in NSD 31 of 2013: Harmers Workplace Lawyers
Counsel for the First Respondent in NSD 31 of 2013: Mr I M Neil SC
Solicitor for the First Respondent in NSD 31 of 2013: Berry Buddle Wilkins
Counsel for the Second Respondent in NSD 31 of 2013: Mr M B J Lee SC with Ms R Francois
Solicitor for the Second Respondent in NSD 31 of 2013:
Harris Freidman
FEDERAL COURT OF AUSTRALIA
Ashby v Slipper [2014] FCAFC 15
CORRIGENDUM
1.In paragraph 411 of the Reasons for Judgment, in the third sentence, the word “interlocutory” should be replaced with “originating”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Mansfield, Siopis & Gilmour. Associate:
Dated: 24 March 2014
FEDERAL COURT OF AUSTRALIA
Ashby v Slipper [2014] FCAFC 15
CORRIGENDUM
1.Insert a new order number 3 to the orders of the Reasons for Judgment as follows:
“3. The respondent pay the applicant’s costs of the application for leave to appeal and of the appeal.”
2.Order numbers 3, 3.1 and 3.2 be re-numbered 4, 4.1 and 4.2 respectively.
3.Insert Ms J C McDonald in the appearances (with Mr M B J Lee SC and Ms R Francois) in NSD 22 of 2013 and NSD 31 of 2013.
4.Remove Mr M D Harmer in the appearances in NSD 31 of 2013.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justices Mansfield, Siopis & Gilmour. Associate:
Dated: 5 March 2014
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 22 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JAMES HUNTER ASHBY
ApplicantAND: PETER SLIPPER
Respondent
JUDGES:
MANSFIELD, SIOPIS & GILMOUR JJ
DATE OF ORDER:
27 FEBRUARY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave to appeal be granted.
2.The appeal be allowed.
3.The orders made on 12 December 2012 be set aside and in lieu thereof there be orders that:
3.1 the respondent’s interlocutory application dated 8 June 2012 be refused.
3.2 the respondent pay the applicant’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 31 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MICHAEL DANIEL HARMER
ApplicantAND: PETER SLIPPER
First RespondentJAMES HUNTER ASHBY
Second Respondent
JUDGES:
MANSFIELD, SIOPIS AND GILMOUR JJ
DATE OF ORDER:
27 FEBRUARY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal be refused.
2.The applicant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION NSD 22 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JAMES HUNTER ASHBY
Applicant
AND: PETER SLIPPER
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 31 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MICHAEL DANIEL HARMER
Applicant
AND: PETER SLIPPER
First RespondentJAMES HUNTER ASHBY
Second Respondent
JUDGES:
MANSFIELD, SIOPIS AND GILMOUR JJ
DATE:
27 FEBRUARY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MANSFIELD AND GILMOUR JJ:
The applicant, James Ashby, seeks leave to appeal and to appeal from an interlocutory judgment of a judge of this Court delivered on 12 December 2012 by which Ashby’s application against the second respondent, Peter Slipper, was dismissed as being an abuse of the process of the Court. We are satisfied that Ashby should be granted leave and that his appeal should be allowed.
There is a further application before the Court. Michael Harmer, of Harmers Workplace Lawyers (Harmers), Ashby’s solicitor, was not a party to the proceeding but is the subject of adverse findings made by the primary judge. These findings also attached to Ashby. Harmer personally seeks leave to appeal and to appeal the judgment. We agree with Siopis J, having had the benefit of considering his reasons in draft, that Harmer ought not be granted leave to appeal. Nonetheless, we have concluded that the adverse findings in relation to his conduct, with their flow on affect upon Ashby, ought not to have been made.
Background
The following background is largely as described in the reasons of the primary judge.
Slipper was a member of the Commonwealth House of Representatives. Prior to 24 November 2011, Slipper had been a member of the Liberal National Party of Queensland (LNP). On 24 November 2011, Slipper was appointed Speaker of the House of Representatives in controversial circumstances. Those circumstances led Slipper to resign from the LNP. Ashby joined the staff of the Hon Peter Slipper, then the Speaker of the House of Representatives, in late December 2011. Ashby was a political advisor to Slipper.
On 20 April 2012, Ashby’s solicitors, Harmers, electronically filed in the Court an originating application under the Fair Work Act 2009 (Cth) (the FW Act) which included an allegation that during Ashby’s employment Slipper had sexually harassed him and involved him in “questionable conduct in relation to travel”. The originating application named the Commonwealth as the first respondent and Slipper as the second respondent. As required, that application was accompanied by a genuine steps statement.
The originating application sought damages for breach of contract. It should have claimed the relief that Ashby sought, and should have been 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 Slipper’s conduct including that:
(1)Slipper had sexually harassed Ashby in the course of his employment by conduct between 4 January 2012 and 20 March 2012 (the sexual harassment allegations);
(2)in 2003 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
(3)Ashby had been forced on three occasions to watch Slipper sign multiple Cabcharge vouchers during his employment and hand them to the driver of a vehicle in which they both travelled and that Ashby intended to report these matters to the Australian Federal Police (the Cabcharge allegations).
As the primary judge observed, by filing the originating application in the Court, Ashby, and as lawyers acting for Ashby, Harmer and Harmers, made the allegations it contained under absolute privilege.
The Commonwealth settled Ashby’s claim by payment of $50,000. It is not necessary to refer to that aspect of the proceeding further except so far as it is incidental to the present applications.
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, Steve Lewis, a journalist employed as the national political correspondent for the Daily Telegraph, sent a text message to Slipper saying he would like to contact him for his comment on the allegations in “court documents”. Lewis and Ashby knew that Slipper was then overseas. The next day many of the allegations about 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 proceeding was first listed for directions, Ashby filed a statement of claim that had been settled by senior counsel. That pleading substantially repeated the sexual harassment allegations made in the originating application. However, the statement of claim did not repeat the 2003 allegations and the Cabcharge allegations. Both the Commonwealth and Slipper filed interlocutory applications seeking orders that the proceeding be dismissed on the ground that it was an abuse of process under r 26.01 of the Federal Court Rules. Slipper, in addition, sought an order that Ashby not continue the proceeding on the ground that it was vexatious under r 6.02.
Slipper’s original and amended points of claim (APOC) in relation to his interlocutory application claimed that Ashby may have acted unlawfully in providing Lewis and The Hon Malcolm Brough, who was seeking to contest Slipper’s seat for the LNP at the next Federal election, with photocopies of Slipper’s diary entries for particular periods in 2009 and 2010. That aspect of his assertions ultimately was not pursued.
An order was made on 23 July 2012 that evidence in each interlocutory application be evidence in the other and that they be heard together. As noted, the Commonwealth’s application was not decided as the claim against it was resolved by agreement by the payment to Ashby of $50,000. Slipper’s application was successful, and the proceeding against him was dismissed. The primary application now before the Court is Ashby’s application for leave to appeal from that decision, and if leave is granted, for an order that his claim against Slipper be reinstated.
It is necessary to refer in some detail to the material before the primary judge.
The originating application
Ashby’s originating application made two claims for relief:
(1)a claim under the FW Act that Ashby had suffered adverse action by both the Commonwealth and Slipper in the form of sexual harassment by Slipper because of Ashby’s sexual preferences, arising from the sexual harassment allegations, and from the 2003 allegations. Ashby sought orders that Slipper undergo counselling and training in the area of anti-discrimination, civil penalties be imposed on each of the Commonwealth and Slipper and he be awarded compensation (after receipt of medical evidence);
(2)a claim for damages for breach by the Commonwealth of Ashby’s contract of employment “by involving [him] in questionable conduct in relation to travel”, namely the Cabcharge allegations.
Only the sexual harassment allegations were maintained in the statement of claim when it was filed. However, it is necessary to record each of the sets of allegations to understand the context of this application.
The 2003 allegations
The 2003 allegations pleaded that:
(1)in mid 2003, the Commonwealth became aware that Slipper had formed a relationship of a sexual nature with a younger male member of his staff, because Megan Hobson, a former member of Slipper’s staff, had informed a senior adviser to the then Prime Minister that she had viewed a video in which 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.
(2)after she had viewed the video Hobson had concluded that the relationship was consensual;
(3)the Prime Minister’s adviser told Hobson to “forget all about it”;
(4)the Commonwealth thereafter failed “to take reasonable and effective steps to prevent [Slipper] from utilising his office to foster sexual relationships with young male staff members”;
(5)in or around budget week in May 2003, the young male staff member had complained to Hobson to the effect that he had been abused by Slipper after an event in January 2003 when Slipper made advances on him which were rejected.
The sexual harassment allegations
In substance, the sexual harassment allegations were that:
(1)In Ashby’s first week of work, commencing on 2 January 2012:
(a)At Slipper’s insistence he stayed in the latter’s flat in Canberra. Slipper had told 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.
(b)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 Slipper and Ashby that Ashby had brushed off at the time.
(c)On 4 January 2012, in his offices in Parliament House, Slipper complained of having a sore neck and that, despite the availability of medical and other services in Parliament House, he asked Ashby, at his flat, later that day to massage his neck. Ashby claimed that he agreed to do so, not knowing what the appropriate response for a new staff member should be. When Slipper lay on his bed clothed only in shorts, Ashby commenced to massage his neck. Slipper made groaning noises of a sexual nature that shocked Ashby and made him very uncomfortable so that he stopped massaging, told Slipper that he had finished and proceeded to leave the room. Slipper had observed that the massage “felt so good”.
(d)Slipper suggested that Ashby should shower and go to the toilet with the door open and that Ashby responded that it was not appropriate to do so. The next day Ashby heard Slipper showering and saw that the bathroom door was open.
(e)As they were returning to Queensland via Sydney where they stopped over, Slipper allegedly made a rude remark that the casual shirt Ashby was then wearing made him appear to be fat. This was said to be an act of victimisation, since Ashby was sensitive about his weight.
(2)On 14 January 2012, as he was driving Slipper to a meeting, Slipper made an enquiry about whether Ashby had had a particular form of homosexual intercourse. Ashby claimed to have been shocked and to have replied that this was not the kind of question Slipper should ask.
(3)Some weeks later, while he was driving Slipper in a car, Slipper repeated the question in (2) above and asked Ashby a question relating to the types of homosexual partners he had and that he [Ashby] again responded that these were not the types of question that he should be asked.
(4)A long series of text messages were exchanged between Ashby and Slipper on 1 and 2 February 2012, from late in the afternoon of 1 February 2012 to the following effect:
(a)Ashby advised Slipper not to give a particular interview to a journalist.
(b)After Ashby had discovered that Slipper had gone ahead with the interview, Ashby sent a text message telling Slipper that what he had done was not funny and that he could not believe that Slipper had called the journalist. He added: “We’ll have to clean this mess up now!!! F[…] f[…] f[…]”.
(c)Slipper responded: “Relax my friend! x”. The originating application stated that “x” in a text message is a reference to a kiss.
(d)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”.
(e)Slipper subsequently responded: “Xxx”. Ashby asserted that that message made him concerned and that he viewed it as bizarre.
(f)Later that night Slipper sent a text message: “Would be good if you were here but perhaps we are not close enough?”.
(g)Ashby did not respond and, about 20 minutes later, Slipper resent the message, as was his habit when he received no response to text messages.
(h)Ashby responded: “Ha ha, where’s [a long term male staff member] tonight?”
(i)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 Slipper’s personal relationships with both that person and Ashby. The exchanges included both Ashby and Slipper making sexually provocative statements to one another. Slipper again inquired during this exchange whether Ashby would be interested in being closer and praised his ability at massages. 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”.
(j)By about 11 pm the exchange ended with Slipper saying that he was sorry things were not working out but appreciated Ashby’s frankness. Slipper said that in future circumstances Ashby was to arrange all communications through the other male staff member as he, Slipper, could not guarantee his availability and that he was sorry Ashby was missing Sydney Harbour cruises. (The latter was a reference to the harbour cruise that Slipper was scheduled to attend with a visiting overseas parliamentary delegation). 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 Slipper to be a sudden change that were reprisals for his declining, what he interpreted to be, Slipper’s sexual invitations.
(k)Ashby inquired whether he was missing the cruise and Slipper responded with a number of ambiguous replies.
(l)Early on the morning of 2 February 2012, Slipper sent a text message to 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”.
(m)About an hour later 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 Slipper had been made Speaker and he would have to preside over the House).
(n)Ashby responded that he understood but that Slipper should “be mindful we all carry that same level of commitment and stress for various reasons”.
(5)On 26 February 2012, Ashby and Slipper had a lengthy exchange of text messages including:
(a)Around 7.30 pm, Slipper texted Ashby, who was in Canberra while Slipper was elsewhere, “Lucky Canberra. [A third person] thought you were a nice twink!”
(b)Slipper repeated the message shortly afterwards and 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”.
(c)Slipper responded that Ashby had met the third person. After Ashby recollected that he had, Ashby asked what the conversation had been about. Slipper responded that it had been about whether Ashby’s loyalty “… was to the thugs in LNP or to me! I told him I was hopeful your loyalty was to me”.
(d)The originating application then stated that there was a lengthy exchange of text messages in which Slipper appeared to be questioning Ashby’s loyalty and attempting to control his actions. In the course of that exchange Slipper sent Ashby a message that he did like 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”.
(6)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, Ashby had prepared a YouTube video of Slipper that explained the significance of the Mace in the Parliament and as Ashby was showing it to Slipper on Ashby’s laptop, Slipper stood behind him and put his arm on Ashby’s arm, stroking it and saying that he did “such a beautiful job with these videos”. Ashby immediately dropped his arm to ensure the touching ceased.
(8)On 20 March 2012, Slipper walked into Ashby’s office and said loudly: “Can I kiss you both”. Karen Doane, another member of Slipper’s staff, was in the next office and, when Ashby responded very loudly: “No”, she looked up. By this time Ashby had formed the view that 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 Ashby fairly and in good faith;
(c)act with due regard for the agreed purpose of 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 Ashby, and take all reasonable steps to protect their safety (the safe work term).
(2)the Commonwealth and Slipper breached their obligations under each of those terms “by involving [Ashby] in questionable conduct in relation to travel”. This breach was particularised by reference to the following three incidents:
(a)on 27 January 2012, Ashby was required to travel in Sydney with 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. Slipper allegedly told 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 Slipper allegedly signed three Cabcharge vouchers without otherwise filling in any details before handing them to the driver;
(b)on 5 February 2012, Ashby again travelled with Slipper in Sydney and was driven by the same driver in the same vehicle. The pleading asserted that Ashby “was forced to witness [Slipper] sign multiple Cabcharge vouchers without any details being completed, and witnessed [Slipper] hand them to the driver”;
(c)on 11 February 2012 Ashby alleged that he was again required to travel in Sydney with Slipper and was “forced to witness” Slipper sign multiple Cabcharge vouchers in the same way and hand them to the driver.
(3)Next the originating application stated:
[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 Slipper, Ashby had suffered “considerable stress, humiliation and illness and is currently seeking medical assistance”.
The abuse of process grounds
Slipper’s APOC 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 [sic] 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.
It should be observed firstly that the predominant collateral purpose pleaded in APOC 10(a) involved Ashby acting in combination with five other persons (treating Harmer and Harmers together) to cause damage to Slipper for a particular purpose. There is much to be said that the pleading, as expressed, includes as the alternatives only Harmer or Harmers and should be read as asserting that all of the five persons acted in combination for that purpose. The primary judge found that none of Lewis, Anthony McClellan, a media consultant engaged by Ashby, or Harmer acted in combination with Ashby with that purpose, so on that view the allegation was simply not made out. The primary judge regarded the allegation as being that one or more of the five persons acted together with Ashby to achieve that purpose. We proceed on the assumption that that construction of the pleading is available.
Secondly, we observe that the allegations in APOC 10(b) provided an alternative basis for the contention that the proceeding was an abuse of the Court’s process or was vexatious, so it is necessary to consider that alternative separately.
Thirdly, the hearing of Slipper’s application (and for some time before it was resolved, the Commonwealth’s application) proceeded over five days on three separate occasions. On the final occasion, Slipper, who had previously been represented, appeared in person. There was extensive affidavit evidence read.
The affidavit evidence read by Ashby included affidavits of David Russell QC, a former senior office holder of the LNP, affidavits of Harmer, and an affidavit of 20 July 2012 of Dr Jonathan Phillips, a consultant psychiatrist, annexing and adopting a medical report on Ashby. There was no cross-examination in the course of the hearing of any deponent.
Ashby’s affidavit of 13 April 2012 included that, in making a complaint about Slipper, he was not motivated by any political or financial considerations and that his motivation was to stop Slipper’s conduct towards him and “more importantly, that such conduct is not repeated in relation to any other staff, current or future”.
The evidence included extensive text messages between Slipper and Ashby from October 2011, that is before the period Ashby commenced to work for Slipper, and up to March 2012. It is evident that the primary judge placed considerable weight on those text messages.
Harmer’s affidavit, apart from explaining when and why he acted as he did in relation to the conduct of the proceeding, at least so far as he could without breaching Ashby’s legal professional privilege, included an extensive commentary of Ashby on the text messages (the commentary). The primary judge measured those comments against the content of the text messages in making his findings and conclusions.
Slipper invited the primary judge to infer that the collateral purpose pleaded at APOC 10(a) was Ashby’s predominant purpose in bringing the proceeding and that it outweighed any legitimate purpose he might have had.
This submission before the primary judge was said to be supported by the following:
(a)there was express agreement between Ashby and Doane that the proceeding was for the collateral purpose;
(b)prior to commencing the proceeding, Ashby made no attempt, genuine or otherwise, to achieve any result for which the proceeding is designed;
(c)the manner in which the proceeding was commenced and prosecuted was designed to inflict damage on Slipper beyond what the law offers and consistent with Harmers’ approach to litigation which was avowedly designed to achieve outcomes beyond what the law offers;
(d)the available and potential remedies were wholly disproportionate to the costs and complexity of bringing the proceeding, having regard to s 37M(2)(e) of the Federal Court of Australia Act 1975 (Cth) (FCA Act); and
(e)in light of Ashby’s conduct in carefully cultivating a close personal and flirtatious relationship with Slipper the proceeding was wholly unmeritorious and manifestly weak.
Findings of the primary judge
The findings of fact of the primary judge are found in two separate sections of his reasons. There is an extensive section under the heading “The Basis of Mr Slipper’s and the Commonwealth’s Claims of Abuse of Process” where his Honour considered the evidentiary material and then, by a series of chronological steps, its significance. That analysis shows the process by which the ultimate conclusions were reached, set out later in the reasons.
After considering the text messages of February 2012, the primary judge accepted that Slipper’s conduct in some of them was capable of being characterised as sexual harassment, so it was open to Ashby to make the sexual harassment allegations in the proceeding.
However, his Honour observed from the text messages of 1 and 2 February 2012 “that Ashby was able to draw a firm line against having the proposed ‘closer’ relationship” with Slipper. At that time, Ashby had consulted a lawyer and senior shadow minister in Queensland LNP State opposition Mark McArdle, and according to the commentary complained to him of feeling distressed and uncomfortable about the text messages. The text messages around that time also included messages between Ashby and certain friends, as to which his Honour said at [35] that they:
… are redolent of Mr Ashby having a purely political intention to use the 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.
The commentary also asserted that Ashby had confided to one of those friends that he had feelings of distress and harassment.
His Honour also concluded that text messages in the latter part of February 2012 also revealed Ashby showing no inhibition in making his own views clear and standing his ground, in particular in Ashby’s proposed support for the LNP in the then proceeding Queensland election. His Honour said at [43] and [44] that those contemporaneous documents do not reveal that Ashby felt or expressed any distress from the conduct of Slipper of which the application complains, and that it was highly unlikely that Ashby would have felt any inhibition in dealing with Slipper in respect of any inappropriate sexual conduct.
Consequently, the primary judge rejected or placed no weight on the evidence of Dr Phillips concerning “the very large power differential” between Ashby and Slipper, and its consequences on the way Ashby and Slipper related. Dr Phillips’ views were expressed having regard to the terms of the text communications.
There was a further element of the text exchanges relied on by the primary judge which, he said at [49], demonstrated the likelihood that Ashby’s claim involved the “adventitious use by him of incautious text messages” by Slipper. Ashby suggested to Slipper in early to mid March 2012 that he (Ashby) accompany Slipper on a visit to Hungary at Ashby’s expense, when Slipper was to be there as part of a proposed Parliamentary delegation.
In this section of the reasons of the primary judge, there is then a section dealing with Ashby’s dealings with Brough and Lewis in late March 2012 whilst Slipper was overseas. Brough referred Ashby to Russell QC to give informal advice to Ashby. Russell QC’s advice was temperate and cautious. The recital of his evidence includes that he made it clear that the LNP would not help Ashby, or give him or Doane any assurances of later employment. It also records that, in Russell QC’s presence, both Ashby and Doane referred to the need to stop Slipper’s “ongoing pattern of behaviour” before he hurt others. In early April 2012, Ashby arranged to see Harmer.
There is a separate section of this part of the reasons recording Harmer’s evidence in some detail.
Under the principal heading of “Consideration”, further conclusions of the primary judge are set out with reasons for those conclusions.
The primary judge found that the Cabcharge allegations as a whole, including the assertion that Ashby intended to report Slipper’s conduct to the police, conveyed the imputation that Slipper was guilty of misusing Commonwealth funds. His Honour also concluded that the assertion of intention to report to the police was irrelevant as well as serious and was calculated to add to the damage Slipper in his office as Speaker and as a Member of the Parliament would suffer as a result of what was conveyed by the other Cabcharge allegations. The primary judge held that Harmer did not have a proper basis for including the assertion that Ashby intended to report the other allegations to the police. In so finding his Honour had regard to Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201 (Clyne) and r A.36 of the Revised Professional Conduct and Practice Rules 1995 (NSW).
The primary judge at [185] made the following findings in relation to Harmer. These findings were, in themselves, found by his Honour to constitute an abuse of process of the Court quite apart from the abuse claims founded on the pleaded combination of Ashby and others.
[185]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 primary judge held at [190] that by pleading that damaging assertion, Harmer breached his professional obligation not to misuse his privilege to make allegations under absolute privilege in Court documents and that the pleading of Ashby’s intention to do so had no legitimate forensic purpose. The inclusion of this irrelevant assertion of Ashby’s intention to go to the police in the originating application was, his Honour held, 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 (see Clyne at 201).
The primary judge concluded that its inclusion offered Ashby and Harmer the opportunity to make a more serious public attack on Slipper than would have been the case merely by making the balance of the Cabcharge allegations, that this was a misuse of Harmer’s proper function as a lawyer and the use of the Court’s process to make the attack in that form was an abuse of process.
The primary judge held that there was no basis for 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. His Honour observed that the inclusion of the 2003 and Cabcharge allegations in the originating application had inflamed the matter, and that this was Ashby’s and Harmer’s doing. His Honour found that the originating application did not make any allegation that Ashby had been “victimised” in the period of more than two months after 1 February 2012 and that the subsequently filed statement of claim pleaded no acts of victimisation. There were additional reasons including that the originating application pleaded that his damages claim for breach of contract would “be calculated following the receipt of expert medical evidence”. Ashby first attended on a consultant psychiatrist Dr Phillips on 19 June 2012, two months after the asserted urgency in the genuine steps statement. His Honour then concluded that 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”.
The primary judge noted that a range of alternative remedies had been available to Ashby, including his rights to:
(a)complain under the Bullying, Harassment and Workplace Violence Policy and Procedure for Members of Parliament (Staff) Act 1984 (Cth) (the MOPS Act) employees;
(b)complain to the Ministerial and Parliamentary Services Division of the Commonwealth Department of Finance;
(c)apply to Fair Work Australia under s 372 of the FW Act to deal with the dispute by conducting a conference;
(d)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 (the Enterprise Agreement);
(e)complain to the Australian Human Rights Commission and seek conciliation there.
However, the primary judge acknowledged that none of these courses would have resulted in a public vindication of Ashby in respect of his complaint of sexual harassment against Slipper, and that only this Court could impose a pecuniary penalty or award compensation or make an order under s 545 of the FW Act that Slipper undergo counselling and attend training in the area of anti-discrimination, as Ashby sought in his originating application. His Honour reasoned that if any of the alternative courses of action had been pursued, there was no evidence to suggest that it would not have provided an effective resolution of any grievance Ashby had against Slipper.
The primary judge accepted that the existence of other alternatives to Court proceedings could not deny the right of any person to seek the resolution of any bona fide dispute by a Court including under the FW Act. However, he found that this proceeding did not fall into such a category. His Honour then made certain observations to the effect that Ashby had not suffered perceivable substantive damage. This was based on his Honour’s critical finding that the contemporaneous text messages and other documents did not reveal any trace of psychological or emotional suffering or complaint by Ashby arising from any sexual harassment. Moreover, his Honour found that Ashby’s request in early to mid March 2012 to accompany Slipper overseas, at Ashby’s own expense, reinforced the obvious lack of any such substantive damage that he may have suffered from any inappropriate conduct by Slipper. The primary judge also held that in any event, the $50,000 paid by the Commonwealth in settlement of Ashby’s claims against it ensured that Ashby recovered more than he would have been awarded in damages and pecuniary penalties against both the Commonwealth and Slipper if he had established his claims relating to what his Honour characterised as “the relatively trivial incidents of sexual harassment” pleaded by Ashby.
The primary judge concluded that Ashby’s predominant purpose for bringing the proceedings was to pursue a political attack against Slipper and not to vindicate any legal claim he may have had for which the right to bring proceedings exists. His Honour held that Ashby began planning that attack at least by the beginning of February 2012.
His Honour held that it was not necessary to make any finding about whether Slipper did sexually harass Ashby in any of the ways alleged, although he found that the claims were arguable, or to consider whether the proceedings were “vexatious proceedings” within the meaning of r 6.02 or r 26.01(1)(b).
Accordingly, the proceedings were dismissed as an abuse of the process of the Court. This was so even though Ashby had, when his statement of claim was filed, abandoned the 2003 allegations and all the Cabcharge allegations which the primary judge held, in respect of the features criticised by his Honour, had done the harm to Slipper that Ashby and Harmer had intended when those allegations were included in the originating application.
Leave to appeal
The orders are interlocutory in nature. Accordingly, leave to appeal is required pursuant to s 24(1A) of the FCA Act. The decision whether to grant leave or not involves an exercise of judicial discretion.
The well-known test generally applied is whether the decision below is attended by sufficient doubt to warrant it being reconsidered by an appellate court and whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Decor).
In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43], citing Ex parte Bucknell (1936) 56 CLR 221 at 225, French J, with whom the other members of the Court agreed, said that a “prima facie case exists for granting leave to appeal” if the judgment, although interlocutory, has the practical operation of finally determining the rights of the parties.
Ashby
The test in Decor, for reasons as will become apparent, is readily satisfied in the case of Ashby. The interlocutory order was final in its effect. Leave to appeal will be given to Ashby. It is therefore necessary to consider his appeal as found in the draft notice of appeal.
Harmer
As noted above, we have had the benefit of reading, in draft, the reasons of Siopis J on this issue. To the extent that his Honour has concluded that Harmer should be refused leave, we agree with him in general and his reasons for so finding.
The Federal Court has recently affirmed that an appeal under s 24 of the FCA Act involves, relevantly, an appeal against a judgment, decree or order itself whether final or interlocutory order, but not against the reasons given for the judgment. Reasons necessarily include findings of fact: Harmer v Oracle Corporation Australia Pty Ltd (2013) 299 ALR 236 at [21]-[22]. The Court observed at [35] that reputational damage arising from a judgment or orders could, in some circumstances, provide sufficient standing to seek leave to appeal. This is not such a case. The order of dismissal made by the primary judge did not itself affect the reputation of Harmer. Harmer contends that it is the adverse findings concerning him in the reasons of the primary judge which have or are likely to have affected his reputation. The particular findings in this case do not give him standing to appeal.
We have come to a different view from his Honour’s finding that Harmer was given sufficient notification that the Court may make findings that Harmer abused the privilege given to legal practitioners by making serious and inappropriate allegations in court documents. That is dealt with in more detail later in these reasons because those findings were employed to sustain a conclusion that Ashby and Harmer had combined to abuse the process of the Court. Such a combination on these grounds had never been pleaded.
Ashby’s appeal
We have set out only certain of the proposed grounds of appeal. The identification of these is sufficient for the disposition of Ashby’s appeal. We have employed the numbers contained in the draft notice of appeal. They are as follows:
Grounds of appeal
1.The primary judge erred in finding (at [196]) that the appellant's predominant purpose for bringing the proceedings below was to pursue a political attack against the respondent and not to vindicate any legal claim he may have for which the right to bring proceedings exists and accordingly that the proceedings were an abuse of the process.
2.The primary judge erred in finding (at [197]) that Mr Michael Harmer intended to cause harm to the respondent by including scandalous and irrelevant allegations in the originating application and accordingly that the proceedings were an abuse of process.
3. The primary judge erred in dismissing the proceedings pursuant to r 26.01 of the Federal Court Rules 2011 in reliance upon the findings identified in paragraphs 1 and 2 above.
The Evidence and Factual Findings
4. The primary judge erred in law in taking an approach to the evidence and fact finding which:
a.did not give any proper regard to section 140(2) of the Evidence Act 1995 (EA);
b.was wrong, unreasonable or perverse in rejecting unchallenged evidence in the particular circumstances the case, being evidence which was not inherently incredible or improbable;
c.contrary to the established approach on the hearing of summary applications, failed to take the appellant's case at its highest and speculated that no evidence could or would be led at trial which would support or corroborate the appellant's evidence which he otherwise rejected; and
d.involved the drawing of inferences that were not open as they were the product of conjecture and speculation.
No or Insufficient Evidence for Findings
5.In the circumstances of a. summary application and having regard to section 140(2) of the EA, there was no or no sufficient evidence upon which the primary judge could find, as he did [in respect to some 35 different findings of fact set out seriatim under this ground].
Unreasonable Rejection of Evidence
6.In the circumstances of a summary application and having regard to section 140(2) of the EA, the primary judgment erred in rejecting unchallenged evidence without a proper basis to do so, including [a series of discrete findings are included under this ground].
. . .
14. The primary judge erred in law in failing to consider (as the appellant submitted) that the material in Mr Harmer's possession which formed a reasonable basis for making the 2003 allegations could be affected by the "cloak of legal-professional privilege" (T12.12 ff - 5.10.12) in circumstances where the evidence disclosed that Mr Harmer had been specifically instructed to maintain claims for privilege until the trial (and according fell into error (at [160]) by speculating in finding on a summary application that Mr Harmer did not have any “proper evidence or other basis on which to make the 2003 allegations”).
15. The primary judge erred in law, when determining whether there was a reasonable basis for the inclusion of the 2003 allegations in the originating application, in taking into consideration (at [161]) the lack of evidence that the staff member involved in the 2003 allegations had ever complained to the Commonwealth about the respondent's conduct or that in had any complaint to make, particularly given:
a.Mr Harmer gave unchallenged evidence that he [sic] factual material available to him which provided a proper basis for the 2003 allegations;
b.the summary nature of the application and the possibility (as submitted by the appellant) that Mr Harmer may have had such 'evidence', but was not at liberty to disclose such material due to the appellant asserting a claim of legal professional privilege prior to trial; and
c.the circumstances of the case and having regard to section 140(2) of the EA.
. . .
19. The primary judge erred in law in failing to accord the appellant procedural fairness by finding (at [199]) without giving notice to the appellant prior to the close of the appellant's case that he may do so, that the appellant had acted in combination with only two of the alleged conspirators, namely Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough, when this was not the case pleaded and advanced on the application as against the appellant in the respondent's amended points of claim.
20. The primary judge erred in law in failing to accord the appellant procedural fairness by finding (at [185]) without giving notice to the appellant prior to the close of the appellant's case that he may do so, that the inclusion in the originating application of the 2003 allegations and the assertion that the appellant intended to report the Cabcharge allegations to the police, was, per se, an abuse of process.
21. The primary judge erred in law in failing to accord the appellant procedural fairness by finding (at [197]) without giving notice to the appellant prior to the close of the appellant's case that he may do so, that Mr Michael Harmer intended to cause harm to the respondent by including scandalous and irrelevant allegations in the originating application and accordingly for this reason alone that the proceedings were an abuse of process.
. . .
23. Having found (at [145] and [149] that Mr Lewis and Mr McClellan were not part of the pleaded combination the primary judge should have found that the case as pleaded and advanced by the respondent had not been proved and dismissed the respondent's' interlocutory application.
. . .
26. The primary judge erred in law in finding that the proceedings were an abuse of process because, in part, the appellant had provided information to Mr Lewis about the respondent's travel claims, knowing that Mr Lewis would cause stories to be published in the press that were critical of the respondent.
27. The primary judge erred in law in taking into consideration when determining that the proceedings were an abuse of process whether Mr Harmer did or did not have ‘sworn or affirmed evidence’ that supported the 2003 allegations when he filed the originating application given Mr Harmer's unchallenged evidence as to why those words were used in the originating application.
28. The primary judge erred in law in holding (at [153], [160], [162], [185] and [190]) that the 2003 allegations and the assertion about reporting the Cabcharge allegations to the police had no legitimate forensic purpose and (at [153]), that the appellant and Mr Harmer included such allegations "to further damage Mr Slipper in the public eye and politically and to attract to him significant adverse publicity in the media."
29. The primary judge erred in law:
a.in finding (at [164]) that “no reasonable person acting within the dictates of a professional lawyers obligations, such as Mr Harmer, could have justified referring to the video [referred to in the 2003 allegations] in the originating application at all”;
b.in holding (at [165]) that the appellant's and Mr Harmer's "pleading of the 2003 allegations was scandalous, oppressive and vexatious and an abuse of Mr Harmer's obligations to the Court as a lawyer"; and
c.in holding (at [185] and [191])) that the inclusion of the 2003 allegations and the assertion that the appellant intended to report the Cabcharge allegations to the police was an abuse of the process of the Court.
. . .
32. The primary judge erred in finding (by implication at [194]) that the proceedings were an abuse of process due to the appellant's failure to seek redress in another forum or by other means, by failing to take into account or giving insufficient weight to:
a.the importance to the appellant of the vindication of a judgment; and
b.the fact that the respondent denies the conduct complained of and that therefore the only way the factual dispute could be resolved authoritatively is by a finding of fact by a Chapter III Court.
Many of the grounds overlap and it will be convenient to deal with the grounds in a composite manner.
Nature of the appeal
Appellate review of the exercise of power by a judge to stay or dismiss a proceeding on grounds of abuse of process “looks to whether the primary judge acted on a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration”: R v Carroll (2002) 213 CLR 635 at [73] per Gaudron and Gummow JJ, adopted by the majority in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [7]. It is not enough if the circumstances are such that minds may differ as to whether or not they constitute an abuse. There must be demonstrable error: Batistatos at [150]. Here Ashby seeks to contend that numerous factual findings, including key ones made by the primary judge, were erroneous.
Almost all of the factual challenges by Ashby are directed to inferences drawn by the primary judge. Slipper’s case was, to a significant extent, built on circumstantial evidence. There was, in particular, no direct evidence of Ashby’s alleged motivation, so that Slipper’s case as to that central issue was circumstantial. These inferences were characterised by Ashby in submissions as, in part, speculation and, in part, as incapable of supporting a finding of abuse of process or as consistent with a benign explanation. In short, the complaint is that despite his recitation of relevant principles, the primary judge did not bring the appropriate caution to the fact finding process in deciding the existence or not of such an abuse as the authorities require in the particular circumstances.
Ashby submits that it was this approach to fact finding which led the primary judge to conclude at [196] that Ashby’s predominant purpose was to pursue a political attack against Slipper and not to vindicate any legal claim he may have for which the right to bring proceedings exists, and accordingly, that the proceeding was an abuse of process; and at [197] that Harmer intended to cause harm to Slipper by including scandalous and irrelevant allegations in the originating application and accordingly that the proceeding was an abuse of process.
It is correct, as put by senior counsel for Slipper, that, at bottom, the primary judge was asked to make findings about Ashby’s motivation in instituting the proceedings. Accordingly, the principal challenge by Ashby goes to the heart of the factual bases upon which the primary judge concluded that Ashby’s predominant motivation in bringing these proceedings rendered them an abuse of process.
An appeal, pursuant to s 24(1)(a) of the FCA Act, is in the nature of a re-hearing. When reviewing findings of fact, the principled approach is as summarised in the majority judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118. It was there noted that “mistakes ... can occur at trial in the comprehension, recollection and evaluation of evidence” at [24] and that a “real review” must be undertaken on appeal ([25]). In circumstances where the Court is required, as the first step, to consider the merits of the proposed appeal on the application for leave, that is the approach to be taken.
A “real review” obliges the appellate court to conduct a thorough examination of the record and the Court:
… is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. … Having conducted a rehearing as so described, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”.
CSR Ltd v Della Maddalena (2006) 224 ALR 1 at [16] per Kirby J.
The primary judge correctly acknowledged in the primary reasons at [4], [123], [199] that Slipper’s onus of satisfying the Court that there was an abuse of process was “a heavy one” that could only be exercised in “the most exceptional circumstances”: Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ. His application involved accusations of moral impropriety. Significantly, the relief sought was the summary dismissal of the proceeding, without a full trial on the merits. The application for dismissal was the subject of evidence which the primary judge described at [12] as “complex and voluminous”. As Dixon J explained in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
Ashby contends that these observations are apposite to this case once the factual errors are corrected.
Fact finding: relevant principles
Ashby submitted to his Honour that Slipper had failed to prove the wide ranging conspiracy he had alleged and that he had not discharged the heavy onus of proof carried by a party who alleges that his opponent has begun or prosecuted proceedings as an abuse of process. Indeed, the primary judge at [199] accepted that he did “not f[ind] that the combination was as wide as Slipper alleged in his points of claim”. The primary judge at [196] concluded that Ashby’s predominant purpose for bringing these proceedings was to pursue a political attack against Slipper and not to vindicate any legal claim he may have and for which the right to bring proceedings exists. He found at [197]) that the originating application was used by Ashby for the predominant purpose of causing significant public, reputational and political damage to Slipper. Then at [199] the primary judge concluded that there was a combination involving Ashby, Doane and Brough of the kind alleged: Ashby acted in combination with Brough to advance the interests of the LNP and Brough; Ashby and Doane set out to use these proceedings as part of their means to enhance or promote their prospects of advancement or preferment by the LNP including by using Brough to assist them in doing so. Accordingly, the case pleaded and which Ashby met was not established.
That burden which Slipper carried in his interlocutory application required him to show on the whole of the evidence to the reasonable satisfaction of the Court the elements of his contention: Axon v Axon (1937) 59 CLR 395 per Dixon J at 403. Inferences, that is, affirmative conclusions from circumstances otherwise proved in evidence are part of the process by which the court determines whether it has been persuaded to the requisite standard of the existence of a fact in issue. As Dixon CJ explained in Jones v Dunkel (1959) 101 CLR 298 at 305, “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”.
Section 140(2)(a) of the Evidence Act
The standard of proof in a civil proceeding before this Court is prescribed by s 140 of the Evidence Act 1995 (Cth) (the Evidence Act): Qantas Airways Ltd v Gama(2008) 167 FCR 537 at [110] and [139]. Section 140 of the Evidence Act provides as follows:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.As the Full Court observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 (CEPU v ACCC) at [30]:
[30]The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
These observations are an echo of what was said by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 which was decided before the Evidence Act was enacted:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Whilst these remarks were directed to fraudulent or criminal conduct they are apt also to the statutory requirements of s 140(2) in the present context where very serious allegations, said to constitute an abuse of the process of this Court, were made.
The nature of the cause of action was significant, seeking, as it did, in effect, final relief in the way of dismissal of the proceeding but without a full trial on the merits. The nature of the subject matter of the proceeding involved whether the processes of the Court were being abused because Ashby’s predominant purpose, in combination with others in bringing the proceedings was an improper collateral purpose and not primarily to vindicate any legal right as expressed in [10](a) of the APOC.
As to the gravity of the allegations of abuse made by Slipper these were most serious: that the collateral purpose of Ashby, in combination with others, was to vilify Slipper, expose him to opprobrium and scandal, bring him into disrepute and to destroy or seriously damage his reputation and standing, his political position and career for the purpose of advancing 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. Those allegations of improper purpose would, necessarily, raise for Ashby, and those with whom he was asserted to have acted in combination, serious consequences to their personal and professional reputations. Each would undoubtedly be viewed as guilty of grave moral delinquency. Such was the case when RD Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 found that a claim of unlawful conspiracy to cause injury on the part of government ministers executing their public duties was a serious matter requiring consideration pursuant to s 140(2) as an adverse finding against the parties accused would raise an event of “grave moral delinquency”: at [206].
The gravity of the allegations embraces a consideration of the likely consequences if the allegations are made out. The graver the allegations and their potential consequences, the stronger is the evidence required to conclude that the allegations have been established which will give rise to those consequences. Thus, in Commonwealth v Fernando (2012) 200 FCR 1 where the allegation was that a Minister of the Commonwealth had deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully, the allegation was held by the Full Court to be a grave allegation. The Court, against that background, said at [130]:
[130]… The legal consequences are potentially serious as too is the effect on the Minister’s reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the Court will not be satisfied that the applicant’s case has been proved to the necessary standard.
As we have observed, Slipper’s case was, in important aspects such as Ashby’s motivation in bringing these proceedings, circumstantial. There is nothing surprising about this given the nature of the allegations made. Accordingly, the primary judge was invited to find certain “intermediary facts” and then to consider whether those facts, in combination and by inference, proved Slipper’s claims on the civil onus. Justice Dixon (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 said at 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
(Emphasis added.)The so-called Briginshaw standard, whilst it has been criticised by some, nonetheless is well enough understood. It is effectively enshrined in s 140 of the Evidence Act. However, an inference must not be drawn where it is but “a choice among rival conjectures but rather there must be “evidence supporting some positive inference … which arises as an affirmative conclusion from the circumstances proved in evidence”: Jones v Dunkel at 304. As was stated in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, reported in Holloway v McFeeters (1956) 94 CLR 470 at 480-481:
… you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687).
The Full Court in CEPU v ACCC at [38] stated in a paraphrase of this passage:
Ultimately, because this is a civil, not criminal, proceeding the civil standard of proof applies. Thus, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that [the impugned conduct had occurred].
As was put more recently by the Full Court in Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297 at [31], drawing from what was said by Crennan J in Lithgow City Council v Jackson (2011) 244 CLR 352 at [94]:
[31]Inference does not mean conjecture, even in a civil case. In civil proceedings the inferential process “may fall short of certainty, [but] must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture”. ... A court is not authorised to choose between guesses, even on the ground that one guess seems more likely than another or others.
Rejection of unchallenged evidence
The principle known as the “rule” in Browne v Dunn (1893) 6 R 67 has two aspects. First, it is a rule of practice and procedure designed to achieve fairness. The rule requires that a party or cross-examiner who intends to invite the court to disbelieve an opposing witness put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The rule is designed to “achieve fairness to witnesses and a fair trial between the parties”.
The rationale of the rule was explained by Lord Herschell at 70-71 as follows:
...it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
Similarly, Lord Halsbury at 76-77 stated:
To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.
The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.
As Samuels JA observed in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587-588, it may be "wrong, unreasonable or perverse to reject unchallenged evidence" and if an appellate court concludes that it were so, in the particular circumstances of a given case, it may overturn the decision of the primary judge on the basis of an error of fact, rather than an error of law. However, as his Honour observed at 588, there is no rule of law in this country that a Court must accept unchallenged evidence.
Consideration of the factual challenges
The core challenge
Central to the disposition of the application before him was the finding by the primary judge in which he rejected Ashby’s unchallenged claim in the commentary that he felt distressed and harassed by Slipper’s alleged sexual conduct: at [37]-[38]. That Ashby did not complain to his friends of feeling sexually harassed in his text messages was prominent in the reasoning of the primary judge in reaching this conclusion at [35], [37], [38], [52] and [134], together with the fact that by contrast, Ashby had felt readily able to complain about political matters to Slipper (at [42]-[44]). This was tantamount to a finding that Ashby was lying about this matter which was an essential fact in his case. It was this finding, it seems, which was prominent in leading the primary judge to conclude that Ashby’s predominant purpose in initiating the proceeding was to pursue a political attack against Slipper and not to vindicate any legal claim: at [196].
His Honour rejected Ashby’s claim that he had contemporaneously complained of being distressed to both McArdle (then a senior shadow minister in the Queensland LNP State opposition) and his friend Hubbard (at [37]). The primary judge considered that an overwhelmingly negative inference was available from Ashby’s text messages sent on 4 February 2012, which discussed mainly the political implications of what Ashby was contemplating but which failed to state expressly that he felt distressed.
The primary judge considered Ashby’s claims to have been distressed and the 4 February text messages as follows:
[32]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.
[33]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.
[34]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)
[35]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.
[36]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.
[37]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.
[38]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.
The primary judge, correctly in our view, in light of the content of Slipper’s text messages to Ashby, numerous of which contained overtly repugnant sexual language, concluded that they were capable of being characterised as conduct constituting sexual harassment. Slipper denies those allegations. For example, there was, in evidence, a media statement of 22 April 2012 by Slipper in which he denied the allegations. It was tendered through an affidavit sworn by a solicitor in the employ of Slipper’s then solicitors. But there was no direct evidence by affidavit by Slipper tendered in evidence. Accordingly there is neither a direct denial nor an explanation of, or in relation to, those allegations made by Ashby, at least not by Slipper on his oath.
In support of his observations, Heydon J referred, in a footnote, to the following observations of Barton ACJ in Pearce v WD Peacock & Company Limited (1917) 23 CLR 199 at 203:
The question was solely as to the reason for the dismissal. No doubt, it is an inquiry in a large measure as to motive; and no doubt also, the motive is to be inferred from facts, and mere declarations as to the mental state that prompted the employer’s action are entitled to but little regard, though in the present case they seem to have been admitted without objection.
These observations were made in the context of cases where the employer bore the onus of establishing the reason for the dismissal of the employee. However, in my view, the observations apply more generally to the assessment of the weight to be accorded to the evidence of a witness’s “mental state” which is pitched at a high level of generality.
An instructive case is the case of Offstage Support Association Inc v Time of My LifePty Ltd (No 2) (2011) 284 ALR 362. In that case, Edmonds J considered an application for indemnity costs against a solicitor personally for commencing a winding-up application which Edmonds J had dismissed as an abuse of process. The basis upon which Edmonds J had dismissed that application was that the application enjoyed no prospect of success either in law or on the basis of the evidence which had been filed.
The solicitor in question filed an affidavit in response to the application that he pay costs personally on an indemnity basis. In the affidavit, the solicitor deposed in general terms that he formed the view prior to the commencement of the application, and also at a later stage in the proceeding, that the matter was “properly arguable”, and did not involve an abuse of process. The solicitor was not cross-examined on those parts of his affidavit. Edmonds J accepted that there had not been cross-examination on those parts of the affidavit, but found the views which the solicitor deposed that he held, were:
[N]ot views which, in my opinion, a competent solicitor experienced in this area of the law could reasonably come to; and I have no reason to doubt that Mr McCartney is a competent solicitor experienced in this area of the law. For those reasons, I attach no weight at all to what Mr McCartney deposes to…
Further, Mr Harmer, being the draftsman of the originating application, was the person who would be expected to give evidence of the reason for the inclusion of the obviously scandalous allegations relating to the contents of the videotape. Mr Harmer, having given evidence, chose not to address the specific complaint about the scandalous and gratuitous form of the pleading he had drafted, nor to depose to the basis for his belief that the 2003 allegations were relevant to a breach of contract.
In the case of White Industries, an issue also arose as to whether there was a basis for senior counsel to have pleaded an allegation of fraud. The statement of claim had been drafted and settled by senior counsel. Senior counsel gave evidence by way of affidavit but did not address the question of how he came to plead fraud. Nor was there evidence from the solicitor who had briefed senior counsel of their discussions relating to the pleading of fraud. Flower & Hart submitted that the failure by senior counsel to turn his mind to the basis for the pleading of fraud should have been put to the witness. At 225, Goldberg J observed:
The documentary evidence which White tendered is such that it raises the issue that fraud was alleged without any factual basis for the allegation and it was open to infer from that documentation that fraud was pleaded without any factual basis for it. It is relevant to a consideration of that issue to know and understand how counsel and solicitors saw the basis for the fraud pleading. In the absence of any evidence from them on that topic, squarely raised in White’s amended statement of facts and contentions and White’s contentions of fact and law, it is open for me to infer from the documentation that they did not at the time address the justification for pleading fraud. If I draw such an inference that assists me in reaching a conclusion that there was no factual basis for pleading fraud, certainly fraud with knowledge. (Emphasis added.)
Goldberg J went on to observe at 226:
It would have been simple and straightforward in those circumstances for [senior counsel] and/or [junior counsel] to set out the basis for which, or the chain of reasoning by which, they pleaded fraud at least fraud with knowledge. They did not do so. I make these observations, conscious, as I have noted earlier, that the burden of proof lies on White to prove that fraud was pleaded where there was no factual basis for the allegation.
Goldberg J then cited with approval, the well-known observations of Handley JA in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (Ferrcom) at 418-419. Goldberg J then went on to say at 228:
I approach the issue before me in the same way and decline to infer that counsel and [the solicitor] considered there was a justification and factual basis for alleging fraud. The allegation was squarely raised and the documentation upon which White relies was exhibited before [senior counsel] and [the solicitor] each swore their second affidavit. They did not respond or refer to the allegation. Accordingly, I do not consider that any inference favourable to those witnesses should be drawn when they either ignored or failed to deal with the issue.
These observations are germane to the assessment of Mr Harmer’s evidence. The circumstances by reference to which the assessment of the weight to be given to Mr Harmer’s evidence by the primary judge, were the following.
First, Mr Harmer’s evidence was cast at a high level of generality, comprising a bare denial that he intended to harm Mr Slipper, and an assertion that he included the 2003 allegations because he believed that they were relevant to a claim in breach of contract. Mr Harmer did not depose to the facts or matters upon which he relied for the holding of the belief he expressed. If there was a rational basis for that belief it would have been a simple issue for Mr Harmer to depose to the basis for that belief. Nor did Mr Harmer attempt in his evidence to explain why it was necessary to make the 2003 allegations in the scandalous form they were made. By reason of the application of the principle in Ferrcom, Mr Harmer was not entitled to the drawing of any inference in his favour on this issue.
In the absence of any explanation of the basis for his asserted belief, and the obvious scandalous nature and irrelevance of the allegations in question, the primary judge was entitled to place no weight on Mr Harmer’s evidence. In a manner similar to that adopted by Edmonds J, the primary judge assessed Mr Harmer’s assertion as to his belief by reference to whether a reasonable lawyer would have held that belief. It was open to the primary judge to adopt this course and to come to the conclusion at [381] above that he did.
Secondly, an examination of the originating application shows that when he drafted that application in April 2012, Mr Harmer addressed his mind specifically to those paragraphs of the originating application which he believed were relevant to Mr Ashby’s breach of contract claim. Mr Harmer identified in para 54 of the originating application those paragraphs of the originating application which he believed were relevant to the plea for breach of contract. Paragraph 54 reads:
By the conduct described in paragraphs 18 to 27, 30 to 36, 37 to 42 and 44 to 48, the Respondents have breached the Applicant’s contract of employment, including but not limited to the Trust and Confidence Term, the Good Faith Term, the Cooperation Term and the Safe Work Term.
As mentioned, the 2003 allegations are set out in paras 5-9 of the originating application. It is significant that paras 5-9 are not among those paragraphs identified by Mr Harmer in para 54 of the originating application as being relevant to Mr Ashby’s claim for breach of contract. Accordingly, Mr Harmer’s affidavit evidence given on 26 September 2012, that he included the 2003 allegations because he believed they were relevant to a claim in breach of contract, is inconsistent with the manifestation of his belief five months earlier when he drafted the interlocutory application. The primary judge was entitled, also, for this reason, to place no weight on Mr Harmer’s affidavit evidence. To use the language of Heydon J in Barclay, there were, in this case, “external circumstances” which undermined the reliability of Mr Harmer’s mere declaration of his belief in April 2012, deposed to in his September 2012 affidavit. Plainly, in the absence of a reliable and plausible explanation for their inclusion, the overwhelming inference to be drawn from the obviously scandalous and irrelevant nature of the allegations, and the fact that Mr Harmer knew that the filing of the originating application would attract widespread publicity, was that Mr Harmer’s purpose for including the allegations was to cause harm to Mr Slipper.
In my view, therefore, notwithstanding the seriousness of the finding in relation to Mr Harmer’s conduct and the evidentiary consequence of that by reason of s 140(2) of the Evidence Act, it was, in my view, open to the primary judge to conclude, as he did, that Mr Harmer’s purpose in including the description of the contents of the videotape as part of the 2003 allegations in the originating application was to cause harm to Mr Slipper and was, therefore, an abuse of process.
On the final day of the hearing before the primary judge, senior counsel for Mr Ashby submitted that Mr Harmer’s purpose in including the 2003 allegations was in support of Mr Ashby’s claims that the Commonwealth had breached two terms of his employment contract. These terms were the employer’s obligation to provide a safe system of work and the employer’s obligation not to undermine the relationship of trust and confidence between an employer and an employee. Senior counsel’s contention was that Mr Harmer’s purpose had been to allege that the Commonwealth had breached these terms in that it had failed to investigate the report to Mr Howard’s aide of Mr Slipper’s sexual encounter with the man on the videotape and, that had the report been investigated, it would have established that Mr Slipper had utilised his office to foster sexual relations with young male staff members. Senior counsel went on to say that the breach of the safe system of work and the trust and confidence term arose because the Commonwealth had failed to prevent a recurrence of Mr Slipper’s misuse of his office.
The primary judge rejected senior counsel for Mr Ashby’s contention. In my view, it was open to the primary judge to do so.
First, senior counsel’s submissions made no attempt to justify the need to plead the scandalous contents of the videotape, and in particular, the fact that Mr Slipper had entered the bedroom through the window and that Mr Slipper had urinated out of the window, by reference to any of Mr Ashby’s claims.
Secondly, Mr Harmer’s evidence did not refer to the matters referred to by Mr Ashby’s senior counsel as being the reason why he included the 2003 allegations in the originating application. As mentioned before, Mr Harmer’s evidence comprised no more than an assertion that he believed the 2003 allegations were relevant to a claim in breach of contract. Also, as mentioned before, by reason of the failure of Mr Harmer to depose to any basis for his belief that the 2003 allegations related to Mr Ashby’s claim of breach of contract, Mr Harmer was not entitled to the drawing of any inference in his favour in respect of that issue.
Thirdly, senior counsel’s contentions as to Mr Harmer’s belief in April 2012, are not reflected in the originating application Mr Harmer drafted in April 2012. As mentioned, para 54 of the originating application identifies the relevant paragraphs Mr Harmer then believed were relevant to the allegation he made that the Commonwealth had breached the safe system of work term and the trust and confidence term. No reference is made in the originating application, to the 2003 allegations as being relevant to that claim. Further, paras 5-9 of the originating application contained no allegation to the effect that, had the Commonwealth investigated the 2003 report, it would have discovered that Mr Slipper had utilised his office to foster sexual relations with young male staff members.
Senior counsel’s contentions before the primary judge, have the tenor of being the product of counsel’s ingenuity rather than being founded on the evidence. This is because, aside from the contentions to which I have already referred, another of senior counsel’s contentions was that the 2003 allegations had been included because they were relevant to penalty. The difficulty with this contention is that in his evidence, Mr Harmer makes no reference at all to the fact that he included the 2003 allegations because he believed that they were relevant to penalty.
Further, support for the finding that the 2003 allegations were irrelevant is to be found in the fact that before the Commonwealth and Mr Slipper made any complaint as to the propriety or otherwise of the inclusion of the 2003 allegations in the originating application, senior and junior counsel for Mr Ashby chose to exclude the 2003 allegations from the statement of claim. Mr Ashby called no evidence which explained that action. It is not open to Mr Ashby to contend that there was a legitimate reason for withdrawing these allegations and then not disclose the reason by claiming legal professional privilege (Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 492-493).
Accordingly, as I have said, in my view, it was open to the primary judge to conclude that the inclusion of the 2003 allegations in the originating application was an abuse of process and, on that basis alone, the appeal should be dismissed.
Mr Ashby also sought to rely upon the following observations of Heydon, Crennan and Bell JJ in the case of Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [75] (Kuhl):
There was no point in the trial judge mentioning his conclusion that the plaintiff’s evidence was not frank and complete unless it played a role in his decision adverse to the plaintiff. In the absence of any challenge from the cross-examiner to the frankness and completeness of the plaintiff's evidence, it was incumbent on the trial judge, if his conclusion that the plaintiff had not been frank and complete was to play a role in his decision adverse to the plaintiff, to make the challenge himself. Perhaps the criticism in the judgment did not occur to the trial judge until after the plaintiff had left the box, or until after the hearing had concluded and before the judge's reserved judgment was given. It remained necessary either to recall the plaintiff or to have no regard to that aspect of the plaintiff’s evidence.
In my view, the observations are not germane to Mr Harmer’s evidence.
The observations of the High Court were addressed to the position of a party witness. That is apparent from the following observations of the High Court at [67]:
It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.
Also, the factual scenario in Kuhl was different from that which pertained in this case. In Kuhl, the plaintiff was a live party-witness and the judge, in effect, made an implied adverse credibility finding of which the plaintiff had no warning, based on the manner in which the plaintiff had answered a question put to him by his own counsel. The High Court expressly distinguished that situation from the Ferrcom situation where, as in this case, a witness does not give evidence in respect of an issue which he or she would be expected to address in his or her evidence.
In any event, this is not a case where a damaging finding was made in a judgment, in respect of which no notice was given. As mentioned at [345]-[357] and [367]-[377] above, Mr Ashby and Mr Harmer were given notice on several occasions of the allegation of abuse of process before and during the hearing. Like Flower & Hart in White Industries, Mr Ashby and Mr Harmer cannot complain of unfairness, if having been notified of the case to be made against them, Mr Ashby and Mr Harmer chose to meet the case with evidence at a high level of generality which did not address the specifics of the allegations made against them. (See [394] above.)
The inclusion of the allegation that Mr Ashby intended to report Mr Slipper’s use of Cabcharge vouchers to the police
In relation to the finding of abuse of process arising from the inclusion of the allegation that Mr Ashby intended to report Mr Slipper’s conduct relating to the use of Cabcharge vouchers to the police, the primary judge made the following observations at [180]–[181]:
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…
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.
Mr Ashby also contended that it was not open to the primary judge to find that Mr Harmer’s conduct in this respect was an abuse of process, because Mr Harmer had given evidence and was not cross-examined.
In para 8 of his affidavit of 26 September 2012, Mr Harmer deposed that he believed he had a reasonable basis for alleging as a matter of fact and law that Mr Ashby’s contract of employment had been breached by the actions of Mr Slipper’s “alleged travel misconduct”.
Mr Harmer further deposed in his affidavit of 26 September 2012, that he turned his mind to the issue of whether the requirement for Mr Ashby to acquiesce in, or witness, Mr Slipper failing to comply with proper travel requirements could amount to a breach of an implied term of his employment contract. Mr Harmer then went on to depose in some detail as to what he perceived to be some uncertainty in the law relating to the implied term of trust and confidence in employment contracts.
However, the claim that was made was that Mr Harmer had no justification for including in the originating application, the plea that Mr Ashby intended to report Mr Slipper’s Cabcharge conduct to the police, because it was not relevant to any cause of action pleaded by Mr Ashby. Mr Harmer’s evidence did not address that issue and Mr Harmer did not disclose any basis upon which he believed the pleading of that fact to be relevant. More specifically, Mr Harmer did not depose to what Goldberg J in White Industries referred to as the basis or chain of reasoning for believing that the pleading of the allegation that Mr Ashby intended to report Mr Slipper’s conduct to the police, was relevant to any cause of action relied on by Mr Ashby in the originating application.
It followed that Mr Harmer was not entitled to the drawing of any inferences as to the relevance of that pleading in his favour. In light of the fact that the pleading of Mr Ashby’s intention to report Mr Slipper’s conduct to the police was inherently irrelevant to any cause of action, it was open to the primary judge to find that there was no forensic purpose for Mr Harmer to include that allegation in the originating application, and that it was included for the purpose of harming Mr Slipper.
Accordingly, it was in my view, open to the primary judge to find that the inclusion of the allegation that Mr Ashby intended to report Mr Slipper’s conduct in relation to the use of the Cabcharge vouchers to the police was an abuse of process, notwithstanding the seriousness of that finding and the evidentiary consequences thereof.
It follows also that this is a further basis upon which Mr Ashby’s appeal should be dismissed.
The finding that Mr Ashby’s predominant purpose in bringing the proceeding against Mr Slipper was to pursue a political attack on Mr Slipper
In light of the view to which I have come, it is unnecessary for me to have regard to the question of whether the primary judge erred in finding that Mr Ashby’s predominant purpose in bringing of the proceeding against Mr Slipper was to pursue a political attack on Mr Slipper.
However, in my view, it was open to the primary judge to make that finding. I will set out briefly my reasons for coming to that view.
Mr Ashby’s request to accompany Mr Slipper to Hungary
It was a central part of Mr Ashby’s pleaded claim that he suffered considerable stress, humiliation and illness by reason of Mr Slipper’s sexual harassment towards him. As mentioned, Mr Ashby did not read any affidavits as part of his own case. Rather, Mr Ashby’s affidavit of 13 April 2012 was accepted into evidence when the Commonwealth sought to tender a part of that affidavit in support of its case. In that affidavit, sworn before the commencement of the proceeding, Mr Ashby deposed that he commenced the proceeding to vindicate his rights by reason of the injury that he had suffered as a result of the sexual harassment by Mr Slipper, and to prevent Mr Slipper from injuring other persons. He said that he had no other purpose in commencing the action.
The primary judge did not accept Mr Ashby’s evidence as to his purpose for commencing the proceeding, notwithstanding that Mr Ashby had not been cross-examined on that evidence. To the contrary, the primary judge found that the weight of the evidence was inconsistent with that evidence. The primary judge relied on an aspect of Mr Ashby’s conduct as being particularly inconsistent with his claim to have suffered considerable stress, humiliation and illness by reason of the alleged incidents of sexual harassment upon which he relied.
The evidence disclosed that in March 2012, Mr Ashby asked Mr Slipper if he could accompany him on a parliamentary trip to Hungary. Mr Ashby offered to pay his own expenses. The primary judge observed that this offer by Mr Ashby was made after the alleged Cabcharge incidents, and all but one of the alleged incidents of sexual harassment had already occurred. The primary judge went on to observe that if, as Mr Ashby now claimed, he had been seriously concerned about these matters at the time, “it defies belief that [Mr Ashby] 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”.
Prior to the commencement of the hearing, Mr Ashby had been put on notice that Mr Slipper would rely upon Mr Ashby’s offer to accompany Mr Slipper to Hungary for the inference that Mr Ashby had not been genuinely aggrieved by the incidents which he now alleged to be sexual harassment; in support of his contention that the predominant reason for Mr Ashby raising these matters in the proceeding was to cause Mr Slipper political harm and embarrassment. (See affidavit of Ms Siobhan Keating dated 12 June 2012.) Mr Ashby, however, did not give evidence in response to that evidence. In particular, Mr Ashby did not depose to matters which sought to explain the apparent incongruity of him volunteering to spend more time with Mr Slipper than he needed to, whilst at the same time contending that by his conduct, Mr Slipper had caused, and was continuing to cause, him considerable stress, humiliation and illness. The failure by Mr Ashby to depose to this issue meant that on the application of the Ferrcom principle, no inference could be drawn in his favour on this issue.
As mentioned, the primary judge relied strongly on the evidence that Mr Ashby had asked Mr Slipper if he could accompany him, at his own expense, to Hungary, to support the inference that Mr Ashby’s predominant purpose in bringing the proceeding was to cause Mr Slipper political harm and embarrassment.
In my view, it was open to the primary judge to rely upon that objective evidence, which was not explained by any evidence from Mr Ashby, to draw the inference which he did.
Further, the primary judge did not err in drawing that inference, notwithstanding the expert opinion of the psychiatrist. Nowhere in the psychiatrist’s report is there any indication that the psychiatrist took into account in expressing the views he did, of the fact that Mr Ashby had after all but one of the events said by Mr Ashby to have been the cause of his stress, humiliation and illness, asked Mr Slipper if he could accompany him, at Mr Ashby’s own expense, to Hungary.
The weight to be placed on Mr Ashby’s affidavit evidence
It was one of Mr Ashby’s main submissions that the primary judge had erred in failing to accept Mr Ashby’s evidence as to the purpose for which he commenced the proceeding in circumstances where Mr Ashby had not been cross-examined.
For the reasons set out at [345]-[357] and [367]-[377] above, the rule in Browne v Dunn was not transgressed in this case. Mr Ashby’s affidavit evidence was just one item of evidence going to his purpose for commencing the proceeding. As mentioned, Mr Ashby was a prolific user of the text message as a means of communication. A verbatim transcript was made of all messages sent and received by Mr Ashby during all but a few days of the period in question. The primary judge was in the position of having before him an accurate record of the original contemporaneous evidence from which to draw inferences in relation to Mr Ashby’s predominant purpose for commencing the proceeding, and the involvement of third parties in Mr Ashby’s endeavour.
On the other hand, Mr Ashby’s evidence as to his purpose for bringing the application was at a high level of generality and fell into the category of a “mere declaration” as to his “mental state”. The principles referred to at [390]‑[406] above, applied to his evidence of purpose and the weight to be accorded to it. In my view, it was open to the primary judge to assess Mr Ashby’s affidavit evidence of his purpose, along with the other evidence which was before the Court, to draw inferences in respect of Mr Ashby’s purpose in commencing the proceedings. By reason of the highly probative evidential value of the verbatim transcripts of the text messages sent and received by Mr Ashby, which reflected an accurate record of contemporaneous dealings between Mr Ashby and others, the primary judge had a rich vein of reliable evidence against which to weigh Mr Ashby’s affidavit evidence of his purpose. Like Goldberg J in White Industries, the primary judge preferred to base his findings on the highly probative objective evidence of the contemporaneous communications than on Mr Ashby’s mere declaration of purpose in his affidavit. It was open to the primary judge to adopt this approach.
The primary judge’s finding that Mr Ashby was physically fit during the period when Mr Ashby had claimed sick leave
Mr Ashby complained about the primary judge’s finding that contrary to the representation he made to Mr Slipper on 10 April 2012 that he was too sick to work, Mr Ashby was, in fact, during the period 10 April to 13 April 2012, physically fit. Mr Ashby’s main complaint was that the primary judge did not accept the “unchallenged evidence” of Dr Shaiza Mazhar that Mr Ashby had a medical condition and was unfit for work from 10 April 2012 to 22 April 2012. The “unchallenged evidence” to which Mr Ashby referred was no more than the receipt into evidence, as an exhibit to Mr Harmer’s affidavit, of the medical certificate to which I have referred at [263] above.
Mr Ashby did not, in fact, read any affidavit evidence from Dr Mazhar explaining the circumstances and content of the medical certificate. Mr Harmer made no comment about these matters in his affidavit, nor as to the providence of the medical certificate. Also, Mr Ashby did not depose as to the medical condition from which he claimed he was suffering on 10 April 2012 and thereafter. This was notwithstanding the allegation made against him in para 32 of the amended points of claim that Mr Ashby “falsely informed Slipper and Slipper’s office that he was unable to attend work because he was sick”.
In my view, it was open to the primary judge to place no weight on the medical certificate of Dr Mazhar which was annexed to Mr Harmer’s affidavit.
First, the terms of the medical certificate were curious in that the medical certificate was issued on 5 April 2012 in respect of an unspecified medical condition which would render Mr Ashby unfit for work five days hence. Further, this five day delay is incongruous with the immediacy of the doctor’s concern as to the poor state of Mr Ashby’s health reported by Mr Ashby in his email of 10 April 2012 to Mr Slipper (see [262] above). In that email, Mr Ashby stated that he had visited a doctor who was “even more” concerned about Mr Ashby’s health than he was, and who had “insisted” that he take two weeks off from work. By reason of the failure to call Dr Mazhar to explain the nature of Mr Ashby’s medical condition and the apparent incongruity to which I have just referred, no inferences in respect of the issue of the medical certificate favourable to Mr Ashby could be drawn.
Secondly, the fact that the medical certificate was dated 5 April 2012 is incongruous with the advice by Mr Ashby in his text message to Ms Ellis, from Mr Slipper’s office, on the morning of 10 April 2012, that Mr Ashby would get a medical certificate (see [262] above).
It is incongruous because Mr Ashby relied upon a medical certificate which predated the message that he sent to Ms Ellis on 10 April 2012. Mr Ashby did not give any evidence seeking to explain this incongruity, nor the incongruity referred to in [449] above. Nor did he give an explanation for failing to supply to Mr Slipper’s office the medical certificate to which he referred in his text message to Ms Ellis of 10 April 2012 and his email to Mr Slipper of 10 April 2012. Nor did he depose to the nature of the medical condition from which he was suffering, nor the element of the condition which disabled him from carrying out his normal employment duties. In the absence of Mr Ashby having deposed to these issues, he was not entitled to the inferences in his favour in respect of those issues.
Thirdly, the objective evidence did not support Mr Ashby’s claim that during the period 10 April to 13 April 2012, he was unfit to carry out his employment duties. During this period, Mr Ashby was able to fly to Sydney, meet with Mr Lewis on two separate occasions - once to have drinks with Mr Lewis, read documents as part of the process of giving instructions to Harmers, attend at Harmers’ premises and give instructions for the drafting of an affidavit, read and understand a lengthy affidavit, affirm the affidavit, communicate with other persons by telephone and text message. In short, the evidence demonstrated that none of the faculties which Mr Ashby needed in order to carry out his ordinary employment duties, which included communicating with journalists, – of whom Mr Lewis was one – was impaired during the period when he claimed that he was too ill to attend work.
In my view, it was open to the primary judge in those circumstances to make the findings in relation to Mr Ashby’s health which he did.
On the appeal, counsel for Mr Ashby sought to explain Mr Ashby’s absence from work on the basis that Mr Ashby did not want to be in Mr Slipper’s presence. There are three difficulties with this submission. First, Mr Ashby gave no evidence to that effect, which, in any event, is contrary to what he claimed in April 2012. Therefore, Mr Ashby is not entitled to the drawing of any inference to that effect in his favour. Secondly, if Mr Ashby had attended work from 10 April 2012 to 13 April 2012, he would not have been in Mr Slipper’s presence because Mr Slipper was overseas at the time. Thirdly, there was no evidence as to why this affliction only moved Mr Ashby to apply for sick leave on the day he was due to be flown to Sydney to commence the process of bringing his application against Mr Slipper. There is no substance in this submission.
Not taking Mr Ashby’s evidence at its highest
I reject Mr Ashby’s complaint that the primary judge erred because he did not take Mr Ashby’s evidence at its highest. This is because there is no universal rule that in all contested interlocutory applications, the Court is required to take the evidence of a party at its highest. The application of this principle will depend on the nature of the interlocutory application. Thus, for example, in a case where a respondent to an originating application brings an interlocutory application to dismiss the claim on the basis that it has no reasonable prospects of success, it may be appropriate to consider the evidence of the applicant at its highest. However, in a case such as this where the question was whether there had been an abuse of process on the grounds that a party had commenced a proceeding for an improper purpose, and there had been points of claim exchanged, all parties had filed extensive evidence, with the opportunity for cross-examination, it was appropriate, in my view, for the primary judge to assess the evidence as a whole, and accord such weight to Mr Ashby’s affidavit evidence as was appropriate. None of the cases relied upon by Mr Ashby for his contention, were cases of abuse of process on the grounds of bringing a proceeding for an improper purpose.
Breach of natural justice
I also reject Mr Ashby’s contention that the primary judge erred in finding there had been an abuse of process which involved Mr Ashby acting in combination with others, because the findings made by the primary judge were not in terms of the combination referred to in Mr Slipper’s pleaded points of claim. As I have mentioned, there is a wider public interest in ensuring that the Court’s process is not abused. It was open to the primary judge to find an abuse of process had occurred even though the abuse of process found was not in the form pleaded.
In any event, in relation to the abuses of process found by the primary judge in relation to the 2003 allegations and the impugned Cabcharge allegation, those abuses of process were, as I have found, pleaded by the Commonwealth and Mr Slipper.
Mr Ashby’s appeal is dismissed with costs.
I certify that the preceding two hundred and thirty-one (231) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 27 February 2014
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