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Ashby v Slipper

Ashby v Slipper

Case [2014] FCA 973 11 September 2014

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FEDERAL COURT OF AUSTRALIA
Ashby v Slipper [2014] FCA 973

Citation: Ashby v Slipper [2014] FCA 973

Parties: JAMES HUNTER ASHBY v PETER SLIPPER

File number: NSD 580 of 2012

Judge: FLICK J

Date of judgment: 11 September 2014

Catchwords:
PRACTICE AND PROCEDURE – application to vacate order not entered – proceeding summarily dismissed – appeal to Full Court – proceeding re-instated – power to vacate order after decision of Full Court

PRACTICE AND PROCEDURE – notice of discontinuance – application to set aside indemnity costs order made in 2012 – reservation of liberty to argue indemnity costs order

PRACTICE AND PROCEDURE – application to
re-open after hearing – application made the day before judgment – application refused – the interests of justice

Legislation: Fair Work Act 2009 (Cth) s 570
Judiciary Act1903 (Cth) s 78B
Federal Court Rules 2011 (Cth) rr 26.12, 39.04
Federal Court Rules 1979 (Cth) O 22 r 2

Cases cited: Ashby v Commonwealth (No 4) [2012] FCA 1411, (2012) 209 FCR 65
Ashby v Slipper [2014] FCAFC 15, (2014) 219 FCR 322
Ashby v Slipper (No 2) [2014] FCAFC 67
Austin Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72, (2012) 202 FCR 506
El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474
Fastlane Australia Pty Ltd v Nolmont Pty Ltd [2007] FCA 492
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
O’Neill v Mann [2000] FCA 1680
O’Neill v Mann (1994) 54 FCR 212
Oswal v Apache Corporation (No 2) [2014] FCA 778
Trade Practices Commission v APM Investments Pty Ltd (1983) 74 FLR 276
Travaglini v Raccuia [2012] FCA 620
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Date of hearing: 2 September 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 30

Counsel for the Applicant: Mr T Blackburn SC with Mr R Gration

Solicitor for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondent: Mr I M Neil SC

Solicitor for the Respondent: Hilliard & Berry Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 580 of 2012

BETWEEN:
JAMES HUNTER ASHBY
Applicant

AND:
PETER SLIPPER
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

11 SEPTEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The indemnity costs order made on 17 August 2012 is vacated.
2.There is no order as to costs in relation to the Interlocutory Application filed on 23 June 2014.
3.The Interlocutory Application filed on 10 September 2014 is dismissed.
4.There is no order as to costs in relation to the Interlocutory Application filed on 10 September 2014.

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 580 of 2012

BETWEEN:
JAMES HUNTER ASHBY

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ashby v Slipper

Details

AGLC: Ashby v Slipper [2014] FCA 973
Case: [2014] FCA 973
Decision Date

CaseChat Overview and Summary

The parties involved in this case are Mr Ashby and Mr Slipper. The nature of the dispute is centred around the discontinuance of proceedings initiated by Mr Ashby against Mr Slipper. This matter was brought before the Federal Court of Australia. The central legal issue before the court was whether an indemnity costs order could be made in the circumstances of this case, given the statutory framework provided by section 570 of the Fair Work Act.

The court had to determine if the discontinuance of proceedings by Mr Ashby warranted an indemnity costs order against him, and if so, whether this was permissible under the Fair Work Act. Additionally, the court considered whether Mr Slipper's contention that the proceedings were an abuse of the court process had been adequately addressed. The court examined the fairness and implications of leaving unresolved significant allegations made by Mr Ashby against Mr Slipper. It also weighed the potential impact of proceeding with the case on both parties and the broader public interest.

The court found that the discontinuance of the proceedings left unresolved many allegations against Mr Slipper, which had attracted significant media attention. The court held that it would have been unfair to Mr Slipper to leave his rebuttal of the allegations unresolved and untested by cross-examination. However, the court concluded that under section 570 of the Fair Work Act, there should be no order as to costs. The court dismissed the Interlocutory Application filed on 10 September 2014, and vacated the indemnity costs order made on 17 August 2012.

The court ordered that there be no order as to costs in relation to the Interlocutory Application filed on 23 June 2014 and the Interlocutory Application filed on 10 September 2014. This decision aimed to balance the fairness to both parties while adhering to the statutory provisions governing costs in such disputes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The conclusion is also consistent with basic notions of fairness. The discontinuance of the proceeding left unresolved the various and many allegations that had been made by Mr Ashby. In advance of the order granting leave to discontinue, evidence had been filed on behalf of both Mr Ashby and Mr Slipper. Mr Slipper, in that evidence, sought to address the allegations levelled against him. The allegations being made, it may be accepted, attracted considerable media attention. Had the matter proceeded to hearing, it would inevitably have been the case that the competing factual accounts would have been vigorously contested. And that debate itself would most probably have attracted even further media attention. The discontinuance of the proceeding by Mr Ashby left Mr Slipper in the position where his rebuttal of the allegations remained unresolved and the allegations made by Mr Ashby left untested by cross-examination. It is unnecessary for present purposes to even attempt to make an assessment as to how those competing allegations may have been resolved. Indeed, it would be wrong to do so. It also left Mr Slipper in the position that his contention that the proceedings instituted by Mr Ashby were an abuse of the process of the Court had not been resolved on a final basis. Had he been ultimately successful in respect of that contention, he may possibly have secured an order in his favour that Mr Ashby pay the costs of the proceeding, notwithstanding s 570 of the Fair Work Act.CONCLUSIONS The indemnity costs order made on 17 August 2012 should be vacated. Given the terms of s 570 of the Fair Work Act, there should be no order as to costs. The Interlocutory Application filed on 10 September 2014 is to be dismissed.THE ORDERS OF THE COURT ARE:1.The indemnity costs order made on 17 August 2012 is vacated. 2.There is no order as to costs in relation to the Interlocutory Application filed on 23 June 2014. 3.The Interlocutory Application filed on 10 September 2014 is dismissed.4.There is no order as to costs in relation to the Interlocutory Application filed on 10 September 2014

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Ashby v Slipper [2014] FCA 973

Most Recent Citation

Condon (Trustee), in the matter of Rayhill (Bankrupt) v Truthful Endeavour Pty Ltd [2015] FCA 7

Cases citing this decision · 8 of 8 shown

Tresize v National Australia Bank Limited
[2020] FCA 902 Para 9

…will affect the result: see Telstra Corporation Ltd v Australian Competition & Consumer Commission (2008) 171 FCR 174 at [207]-[211]; Ashby v Slipper [2014] FCA 973 at [10].…
Australasian Jet Pty Ltd v Air Affairs (Australia) Pty Ltd
[2017] FCA 1043 Para 15

…As Flick J said in Ashby v Slipper [2014] FCA 973 at [20]: “[t]he right to discontinue a proceeding is a recognition of the fact that a party should not be forced to litigate a case … But where a party seeks to discontinue a proceeding, be it with consent or with leave, that party usually is required to pay the c…
Mbuzi v AGL Sales Pty Limited
[2016] FCA 1313 Para 19

…His Honour stated that whether leave to reopen proceedings should be granted or refused depends on the interest of justice, citing Ashby v Slipper [2014] FCA 973 at [10] and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [48]. His Honour said that it was not in the interests of justice to…
Mbuzi v AGL Retail Energy Limited
[2016] FCA 590 Para 27

…Whether leave to reopen proceedings should be granted or refused depends on the interests of justice: Ashby v Slipper [2014] FCA 973 [10] (Flick J) citing Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, 478 (Clarke JA; Mahoney and Meagher JJA agreeing); Walsh v Greater Metropolitan Cemeteries Trus…
Ashby v Slipper (No 2)
[2016] FCA 550 Para 2

…costs order that had previously been made. The Court as presently constituted set aside that indemnity costs order in September 2014: Ashby v Slipper [2014] FCA 973.There was a challenge to that decision. In April 2016 a Full Court granted leave to appeal but then dismissed the appeal: Ashby v Slipper [2016] FCAF…
Winn v Leigh
[2016] FCA 319 Para 17

…tralia Act 1976 (Cth) vests a discretion in the Court to make an order as to costs, I note respectfully the observation of Flick J in Ashby v Slipper [2014] FCA 973 at [20] that: The right to discontinue a proceeding is a recognition of the fact that a party should not be forced to litigate a case: Trade Practice…
Ashby v Slipper (No 3)
[2015] FCAFC 9 Para 16

…As Flick J later observed, both Ashby and Slipper “took their chances” as to whether the indemnity costs order would be vacated: Ashby v Slipper [2014] FCA 973 at [5].…
Condon (Trustee), in the matter of Rayhill (Bankrupt) v Truthful Endeavour Pty Ltd
[2015] FCA 7 Para 27

…ere not in dispute: (1)The “fundamental principle” which determines whether leave should be granted is the interests of justice ( Ashby v Slipper [2014] FCA 973 at [10] per Flick J, citing Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 ( Nweiser ) at 478 per Clarke JA (Mahoney and Meagher JJA agre…

View all 8 citing cases →

Cases cited in this decision · 17 of 17 shown

Ashby v Slipper (No 3)
[2015] FCAFC 9 Para 3

…monwealth (No 4) [2012] FCA 1411, (2012) 209 FCR 65. There was an appeal. In February 2014 the appeal was allowed: Ashby v Slipper [2014] FCAFC 15, (2014) 219 FCR 322. Mr Slipper was ordered to pay the costs of the application for leave to appeal and the costs of the appeal. That order as to costs was subsequently se…
Oswal v Apache Corporation (No 2)
[2014] FCA 778 Para 15

…ce are better served by allowing or rejecting the application for leave to re-open”: …. See also: Oswal v Apache Corporation (No 2) [2014] FCA 778 at [3] per Gilmour J.…
Ashby v Slipper (No 2)
[2014] FCAFC 67 Para 3

…cation for leave to appeal and the costs of the appeal. That order as to costs was subsequently set aside by the Full Court: Ashby v Slipper (No 2) [2014] FCAFC 67. The Full Court agreed with Mr Slipper’s contention that it had no jurisdiction to award costs given the terms of s 570 of the Fair Work Act .…
El-Debel v Secretary, Department of Immigration and Border Protection
[2014] FCA 474 Para 20

…h leave, that party usually is required to pay the costs of the discontinuance: El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 at [17] per Foster J; Travaglini v Raccuia [2012] FCA 620 at [36] per McKerracher J.…
Walsh v Greater Metropolitan Cemeteries Trust (No 2)
[2014] FCA 456 Para 10

…992) 28 NSWLR 471 at 478 per Clarke JA (Mahoney and Meagher JJA agreeing). See also: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [48] per Bromberg J. In the circumstances of the present case, the interests of justice do not require Mr Slipper being granted leave to re-open. Even if leav…
Ashby v Slipper
[2014] FCAFC 15 Para 3

…ding: Ashby v Commonwealth (No 4) [2012] FCA 1411, (2012) 209 FCR 65. There was an appeal. In February 2014 the appeal was allowed: Ashby v Slipper [2014] FCAFC 15, (2014) 219 FCR 322. Mr Slipper was ordered to pay the costs of the application for leave to appeal and the costs of the appeal. That order as to costs…
Ashby v Commonwealth (No 4)
[2012] FCA 1411 Para 3

…an abuse of the Court’s process. A Judge of this Court (Rares J) at first instance agreed and dismissed the proceeding: Ashby v Commonwealth (No 4) [2012] FCA 1411, (2012) 209 FCR 65. There was an appeal. In February 2014 the appeal was allowed: Ashby v Slipper [2014] FCAFC 15, (2014) 219 FCR 322. Mr Slipper was o…
Travaglini v Raccuia
[2012] FCA 620 Para 20

…f the discontinuance: El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 at [17] per Foster J; Travaglini v Raccuia [2012] FCA 620 at [36] per McKerracher J.…
Austin, Nichols and Co Inc v Lodestar Anstalt (No 2)
[2012] FCAFC 72 Para 15

…need for finality in litigation and the need to exercise the power with “ great caution ”: Austin Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72 at [6], (2012) 202 FCR 506 at 508 per Jacobson, Yates and Katzmann JJ. And in this very course of this litigation the Full Court has again endorsed these con…
Fastlane Australia Pty Ltd v Nolmont Pty Ltd
[2007] FCA 492 Para 21

…interlocutory costs orders which had been made in his favour ”: Fastlane Australia Pty Ltd v Nolmont Pty Ltd [2007] FCA 492 at [15]. Jessup J there went on to observe that it “ was because Finn J did not consider it just or appropriate that the applicant in O’Neill v Mann should have the benefit of such orders,…
Inspector-General in Bankruptcy v Bradshaw
[2006] FCA 22 Para 10

…y be accepted is one of the recognised circumstances in which leave may be granted to re-open: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] per Kenny J. But the fundamental principle which determines whether leave to re-open should be granted or refused is the interests of justice: Urban Tran…
O'Neill v Mann
[2000] FCA 1680 Para 21

…ding should not be permitted to do so whilst at the same time retaining the benefit of an interlocutory costs order previously made: O’Neill v Mann [2000] FCA 1680. In that case Mr O’Neill had commenced a defamation action against Dr Mann. The Full Court had made a costs order in favour of Mr O’Neill on the hearin…
Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin
[1997] HCA 6 Para 21

…osts. As McHugh J observed in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Qin (1997) 186 CLR 622 at 625 of one common category of case: “[i]f it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties…
O'Neill, J.J. v Mann, A
[1994] FCA 923 Para 21

…gainst Dr Mann. The Full Court had made a costs order in favour of Mr O’Neill on the hearing of a preliminary question of law: O’Neill v Mann (1994) 54 FCR 212. Mr O’Neill thereafter sought to discontinue. Mr O’Neill conceded that he should pay the costs thrown away by reason of the discontinuance but sought to reta…
Fuderer, Waltraud v Commonwealth of Australia
[1983] FCA 359 Para 20

…a proceeding is a recognition of the fact that a party should not be forced to litigate a case: Trade Practices Commission v APM Investments Pty Ltd (1983) 74 FLR 276 at 280 per Woodward J. But where a party seeks to discontinue a proceeding, be it with consent or with leave, that party usually is required to pay t…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 7

…resolved – and, indeed, should have been resolved – on appeal or cross-appeal to the Full Court (cf. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). To contend otherwise and to contend that there was either no power to make an order for costs or to make an order that costs be paid on an indemnity ba…
Urban Transport Authority of New South Wales v Nweiser
4 QBD 217 Para 10

…determines whether leave to re-open should be granted or refused is the interests of justice: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 per Clarke JA (Mahoney and Meagher JJA agreeing). See also: Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [48] per Bromberg J. In…

Legislation cited in this decision · 6

Federal Court Rules 2011 (Cth)
26.12, 39.04 3 mentions (from Para 15)
Fair Work Act 2009 (Cth)
570 2 mentions (from Para 2)
Judiciary Act 1903 (Cth)
78B 2 mentions (from Para 12)
Corporations Act 2001 (Cth)
1 mention (from Para 19)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 21)
Federal Court Rules 1979 (Cth)
1 mention (from Para 19)

Citation:	Ashby v Slipper [2014] FCA 973
Parties:	JAMES HUNTER ASHBY v PETER SLIPPER
File number:	NSD 580 of 2012
Judge:	FLICK J
Date of judgment:	11 September 2014
Catchwords:	PRACTICE AND PROCEDURE – application to vacate order not entered – proceeding summarily dismissed – appeal to Full Court – proceeding re-instated – power to vacate order after decision of Full Court PRACTICE AND PROCEDURE – notice of discontinuance – application to set aside indemnity costs order made in 2012 – reservation of liberty to argue indemnity costs order PRACTICE AND PROCEDURE – application to re-open after hearing – application made the day before judgment – application refused – the interests of justice
Legislation:	Fair Work Act 2009 (Cth) s 570 Judiciary Act1903 (Cth) s 78B Federal Court Rules 2011 (Cth) rr 26.12, 39.04 Federal Court Rules 1979 (Cth) O 22 r 2
Cases cited:	Ashby v Commonwealth (No 4) [2012] FCA 1411, (2012) 209 FCR 65 Ashby v Slipper [2014] FCAFC 15, (2014) 219 FCR 322 Ashby v Slipper (No 2) [2014] FCAFC 67 Austin Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72, (2012) 202 FCR 506 El-Debel v Secretary, Department of Immigration and Border Protection [2014] FCA 474 Fastlane Australia Pty Ltd v Nolmont Pty Ltd [2007] FCA 492 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 O’Neill v Mann [2000] FCA 1680 O’Neill v Mann (1994) 54 FCR 212 Oswal v Apache Corporation (No 2) [2014] FCA 778 Trade Practices Commission v APM Investments Pty Ltd (1983) 74 FLR 276 Travaglini v Raccuia [2012] FCA 620 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456
Date of hearing:	2 September 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	30
Counsel for the Applicant:	Mr T Blackburn SC with Mr R Gration
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondent:	Mr I M Neil SC
Solicitor for the Respondent:	Hilliard & Berry Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 580 of 2012

BETWEEN:	JAMES HUNTER ASHBY Applicant
AND:	PETER SLIPPER Respondent

JUDGE:	FLICK J
DATE OF ORDER:	11 SEPTEMBER 2014
WHERE MADE:	SYDNEY