Ashby v Slipper (No 2)

Case [2016] FCA 550

FEDERAL COURT OF AUSTRALIA

Ashby v Slipper (No 2) [2016] FCA 550

File number: NSD 580 of 2012
Judge: FLICK J
Date of judgment: 19 May 2016
Catchwords:

PRACTICE AND PROCEDURE – release from implied undertaking – jurisdiction of Court after proceeding concluded – considerations to be taken into account – the facilitation of a criminal investigation

PRACTICE AND PROCEDURE – power to make supplemental orders after conclusion of proceedings – application made by a former party  
Legislation: Fair Work Act 2009 (Cth)
Cases cited:

Ashby v Commonwealth (No 4) [2012] FCA 1411, (2012) 209 FCR 65

Ashby v Slipper [2014] FCA 973

Ashby v Slipper [2014] FCAFC 15, (2014) 219 FCR 322

Ashby v Slipper [2016] FCAFC 63

Ashby v Slipper (No 2) [2014] FCAFC 67, (2014) 194 ALD 10

Australian Trade Commission v McMahon (1997) 73 FCR 211

Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476

Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (in liq) (1993) 45 FCR 224

Camp Curlewis Resorts Pty Ltd v Hamersley Iron Pty Ltd (Unreported, Federal Court of Australia, Branson J, 20 December 1994)

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Hearne v Street [2008] HCA 36, (2008) 235 CLR 125

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, (2005) 218 ALR 283

Plate Glass Holdings Pty Ltd v Fraser Gordon Investments Pty Ltd [2012] FCA 1487

Websyte Corporation Pty Ltd v Alexander [2012] FCA 69, (2012) 95 IPR 344
Date of hearing: 12 May 2016
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 16
Solicitor for the Applicant: Mr S Berry of Hilliard & Berry Solicitors
Solicitor for the Respondent: Mr D Russell of Harmers Workplace Lawyers
Counsel for the Applicant in the Interlocutory Proceeding: Mr A Berger for the Commonwealth of Australia
Solicitor for the Applicant in the Interlocutory Proceeding: Australian Government Solicitor for the Commonwealth of Australia

ORDERS

NSD 580 of 2012
BETWEEN:

JAMES HUNTER ASHBY

Applicant
AND:

PETER SLIPPER

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

19 MAY 2016

THE COURT ORDERS THAT:

1.The Commonwealth of Australia has leave to use Exhibit RDM-2 and Exhibit RDM-3 to the Affidavit of Mr Rodney David McKemmish dated 24 April 2012 by providing them to the Commissioner of the Australian Federal Police (the “AFP”) to be used for the following purposes:

(i)the conduct of investigations by the AFP as to whether offences have occurred against the laws of the Commonwealth;

(ii)to obtain advice in relation to whether any offences have occurred against the laws of the Commonwealth; and

(iii)in evidence in relation to any prosecution for an offence against a law of the Commonwealth.

2.No order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

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AGLC
Ashby v Slipper (No 2) [2016] FCA 550
Case
[2016] FCA 550
Decision Date

CaseChat Overview and Summary

In the case of Ashby v Slipper (No 2), the parties involved were the Commonwealth of Australia, represented by the Australian Federal Police, and two former individuals, Mr Ashby and Mr Slipper. The dispute centred around the release of two discs containing text messages that were potentially relevant to an ongoing criminal investigation. The Federal Court of Australia was tasked with determining whether the Commonwealth should be permitted to release these discs to the Australian Federal Police for the purposes identified in the proposed orders. The legal issues the court had to resolve included the release of the Commonwealth from an implied undertaking regarding the two discs and the power to make supplemental orders after the conclusion of proceedings. The court found that the Commonwealth should be released from the implied undertaking as both Mr Ashby and Mr Slipper consented to the orders sought, and there was a legitimate public interest in facilitating the police investigation. Additionally, the court considered that the text messages on the discs could lead to the disclosure of further information relevant to the police investigation, and the original mobile phone from which the information was downloaded was no longer available. The court concluded that the orders sought by the Commonwealth should be made, and the Commonwealth should be released from the implied undertaking to the extent identified in the orders sought and in the form to which Messrs Ashby and Slipper consented. The court also agreed that there should be no order as to costs.

Orders

Orders of the court

1. The Commonwealth of Australia has leave to use Exhibit RDM-2 and Exhibit RDM-3 to the Affidavit of Mr Rodney David McKemmish dated 24 April 2012 by providing them to the Commissioner of the Australian Federal Police (the “AFP”) to be used for the following purposes:

(i) the conduct of investigations by the AFP as to whether offences have occurred against the laws of the Commonwealth;

(ii) to obtain advice in relation to whether any offences have occurred against the laws of the Commonwealth; and

(iii) in evidence in relation to any prosecution for an offence against a law of the Commonwealth.

2. No order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the facts of the present case it has been concluded that the Commonwealth should be permitted to release the two discs to the Australian Federal Police for the purposes identified in the proposed orders, because: ·both Mr Ashby and Mr Slipper consent to the orders sought; ·there is a legitimate public interest in permitting the Australian Federal Police access to materials that may assist its investigation into the alleged unlawful disclosure of the official diary of a former Speaker of the House of Representatives;·from the limited available information relating to the contents of the two discs, there is a legitimate basis to conclude that the text messages Mr Ashby sent (and those he received) could lead to the disclosure of further information relevant to the police investigation; ·the original mobile phone from which Mr McKemmish downloaded the information is no longer available, meaning that the police cannot simply seek access to that phone and undertake their own forensic analysis; and·the execution of a further search warrant in November 2015 failed to disclose the information in question. Although there may be no necessity to do so, it would appear that steps have been pursued in the present case with a view to obtaining further information of relevance to the criminal investigation now being pursued before making the present application. CONCLUSIONS The orders which the Commonwealth seeks should be made. The Commonwealth should be released from the “implied undertaking” in respect to the two discs to the extent identified in the orders sought and in the form to which Messrs Ashby and Slipper consent. It was agreed that there should be no order as to costs. THE ORDERS OF THE COURT ARE:1.The Commonwealth of Australia has leave to use Exhibit RDM-2 and Exhibit RDM-3 to the Affidavit of Mr Rodney David McKemmish dated 24 April 2012 by providing them to the Commissioner of the Australian Federal Police (the “AFP”) to be used for the following purposes:(i)the conduct of investigations by the AFP as to whether offences have occurred against the laws of the Commonwealth;(ii)to obtain advice in relation to whether any offences have occurred against the laws of the Commonwealth; and(iii)in evidence in relation to any prosecution for an offence against a law of the Commonwealth.2.No order as to costs.

Ratio Decidendi

Legal Principle Established

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