The #Ashbyappeal decision: @boeufblogginon explainer

By Joan Evatt

28 February 2014

In a majority decision of the Full Court of the Federal Court of Australia Justices Mansfield and Gilmour granted James Ashby the leave to appeal and upheld that appeal thereby overturning the decision of Rares J. A minority decision by Siopis J granted Ashby leave to appeal and then dismissed the appeal.

All three judges denied Michael Harmer leave to appeal.

Lawyers will always tell you that there are two key components to any case that must be met if a disaster is to be avoided.

The first is a lawyer striving to provide that hook upon which a judge can hang his hat.

The second is a minefield for the unwary. It won’t necessarily be the law that will bite you in the butt, but rather the procedures required and strategies employed during the progress of a court case.

In the matter of the Ashby appeal both of these fundamental components were ignored by Slipper causing difficulties for the Rares’ decision, and consequently Slipper himself.

In December 2012 Justice Rares granted an interlocutory judgment to Peter Slipper, which in effect dismissed James Ashby’s action alleging sexual harassment against Mr Slipper. The Rares decision dismissed the Ashby case on the grounds that he had found the legal action taken by Mr Ashby was for a different purpose than a quest for justice from some form of legal settlement to a legal problem. That purpose was to harm Peter Slipper politically thereby benefiting the position of Mal Brough and the LNP. Rares J found this to be an abuse of the judicial process and dismissed the sexual harassment case.

Justice Mansfield, Justice Gilmore and Justice Siopis were given the onerous task of hearing an application for leave to appeal the Rares decision by both James Ashby and Mr Ashby’s solicitor, Michael Harmer, a non-party to the proceedings.

For their Honours this was never going to be an easy task. Whichever side of the fence their decision/s fell there was always going to be political repercussions and media interest in the outcome, no matter how hard they tried to avoid them.

Despite Harmer’s leave to appeal being filed after Ashby’s, Harmer’s application for leave to appeal was the first matter dealt with by Mansfield J.

Their Honours were unanimous in denying Michael Harmer leave to appeal on any ground. Siopis J found that Harmer was a non-party to the proceedings who had not been substantially affected by the ‘operation of interlocutory order.’ Mansfield J and Gilmour J found that the interlocutory order did not “itself affect the reputation of Harmer.”

The judiciary must have breathed a collective sigh of relief on that decision. A finding to the contrary would have opened a Pandora’s box of appeal applications from aggrieved professional witnesses against whom adverse findings have been made in a judgment. As each side of a legal argument often has expert witnesses there is always one ego at least, which is going to feel bruised and aggrieved.

Reading between the lines of various comments contained in their decisions it would seem to indicate the disagreement between the three judges may well have been responsible for the additional and unacceptable time taken in reaching and bringing down their judgments. The two-day hearing for the applications for leave to appeal and the appeal proper were heard in the first week of May 2013. The decision was brought down on 27th February 2014.

The majority decision of Mansfield and Gilmour uses muddied language and muddled thinking. Despite the fact that we were in the land of law there still needs to be an obvious logic to any decision driven by a narrative fuelled by precedent and legal interpretation. The decision of Mansfield and Gilmour lacks logic.

Mansfield J and Gilmour J rely heavily on the fact that Justice Rares didn’t accept uncontested evidence. Throughout their decision the words ‘uncontested evidence’ and ‘not cross-examined’ are constantly used. They take the view that evidence that was uncontested or not subject to cross-examination stands irrespective of the body of contrary evidence contained elsewhere.

One such example was the inclusion in the originating application of 2003 allegations of a consensual sexual relationship between Slipper and a member of staff, and allegations about the misuse of Cabcharge vouchers, which had not been reported by Ashby to the appropriate authorities, as in the Federal Police. In Rares’s view it raised questions as to the legitimacy of Ashby’s purpose in bringing the sexual harassment case as these allegations included in the originating application had no ‘legitimate forensic purpose.’

Mansfield J and Gilmour J dismiss this view as Ashby had ‘when his statement of claim was filed, abandoned the 2003 allegations and all the Cabcharge allegations, which the primary judge held … had done harm to Slipper that Ashby and Harmer had intended when those allegations were included in the originating application.’ Of course the original claim filed on Ashby’s behalf by Harmers contained these allegations before being amended some weeks later deleting the 2003 and Cabcharge allegations.

It may seem disingenuous to suggest that the miles of media print and hours of broadcast time devoted to those allegations contained in the originating application didn’t do exactly what Rares J found had been accomplished. It is difficult to see how these original allegations can be detached from the purpose of the proceedings argument but somehow Mansfield and Gilmour seem to manage it.

Much of course is made of Slipper, who was appearing for himself at the time, not cross-examining Harmer when he was in the witness box called by his client, Ashby, to give evidence on the originating application. Nor was Ashby called by Slipper to question him on the purpose behind the inclusion of these allegations in the originating application.

With no cross-examination it is easier to validate existing evidence irrespective of how clumsy or flimsy it may appear to be. Virtually every issue the majority decision considers has at its core the fact that there was uncontested evidence making it easier for them to dismiss any alternative view. This was a serious mistake by Slipper. Even a poor cross-examination would have been better than none.

There is precedence with regards to weight of evidence with the general proposition being that such evidence, which is not ‘inherently incredible and which is unchallenged, ought to be accepted.’ Of course the exception to the rule is that evidence can be rejected if it is contradicted by the facts established elsewhere.

So argued Siopis J who, in his minority decision, continually looks at the weight of the evidence and its consistency with non-verbal evidence contained in 270 pages of text and email messages upon which Slipper was relying.

One such example Siopis J gives is “…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.”

The most blissful example of evidence coming unstuck which Mansfield and Gilmour seem not to get their heads around and, quite frankly, stinks like dead fish sitting out in the summer sun for three days, was the medical certificate supplied to Mr Ashby by Dr Shaiza Mazhar.

It was never given to Slipper’s staff for his sick leave from 10th April but appeared attached as evidence to an affidavit dated 26 September 2012.

The medical certificate was dated the 5th April 2012 and states:

“Mr James Ashby has a medical condition and will be unfit for work from 10/04/2012 to 22/04/2012 inclusive.”

Of course it was during this period that Mr Ashby was in Sydney with News Limited’s Steve Lewis for press coverage of the Cabcharge allegations, and Harmer’s staff preparing documents for a sexual harassment case.

Siopis J describes this evidence as ‘curious.’ What is ‘curious’ is that Mansfield J and Gilmour J didn’t.

The options are now limited for Slipper. He could seek leave to appeal to the High Court, but appears to be without sufficient funds to pursue this option. It is more likely Ashby v Slipper will begin again. Of course Slipper has to contend with the discrimination allegations at the heart of a civil case brought against him by Karen Doane and which will be heard on April 1.

Mr Ashby and his team seem intent to continue with the sexual harassment case so Ashby v Slipper may go back before a new judge and start again at Square 1. I’m sure there will be a few highly placed LNP politicians who hope he doesn’t.

Read more Ashby Affair stories