Ashby v Slipper

Case [2014] FCA 973


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

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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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