Joan Evatt’s preview of #Ashby appeal

By Joan Evatt

April 29, 2013

Editors note: Here is Joan’s preview of the appeals by Ashby and his lawyer Michael Harmer against the Justice Rares’ dismissal of Ashby’s sexual harassment claim against Slipper as an abuse of the judicial system. Joan will report the hearing for @NoFibs.  Her first report is here.

Just when you think it is safe to re-enter still waters, the waves start to churn again. It’s a cause to pause. The matter of an application before the Court of Appeal to grant leave, and to consider reasons why Justice Rare’s decision in Ashby v Slipper should be overturned, will be heard this week.

The next saga resulting from Justice Rares’s decision in Ashby v Slipper was always going to be of interest. Public scrutiny of the appeal is further heightened because of one unusual aspect of the appeal. One of the appellants is Mr Ashby’s high-profile solicitor, Michael Harmer, of Harmer’s Workplace Lawyers.

For Mr Slipper, although the appeal is a continuing financial and emotional burden, this time should prove a slightly more refreshing exercise. Slipper is no longer on the back foot. Rather it is Mr Ashby and Mr Harmer who are both now fighting for their future professional careers and public standing.

Both applications contain identical grounds founded in Mr Ashby’s and Mr Harmer’s belief that Rares J erred in finding that the “predominant purpose” of Mr Ashby

“ … for bringing the proceedings was to pursue a political attack against the Respondent (Mr Slipper) and not to vindicate any legal claim he (that is Mr Ashby) may have… and accordingly that the proceedings were an abuse of process.”

Ashby and Harmer also believe the Judge erred “… in finding that Mr Harmer intended to cause harm to Mr Slipper by including scandalous and irrelevant allegations in the originating application…”

Justice Rares also found this to be an “abuse of process” and consequently dismissed the proceedings under regulation 26.01 of the Federal Court Rules 2011.

Rule 26.01 of the Federal Court Rules 2011 sets out the reasons why, and how, a party in a case can apply to the Court for an order that judgment be given against the other party. The reasons are limited and appear simple. A common one used is that the case is “frivolous and vexatious”. Others include that one of the parties can’t successfully either prosecute or defend the matter, and of course, the one at the heart of Ashby v Slipper: the proceeding is “…an abuse of the process of the Court…”

Both applications also argue that the judgment is substantially unjust as Mr Ashby was denied a hearing on the merits of his case.

Ashby and Harmer raise specific questions they want the Court of Appeal to consider although there is precedent in all these matters.

They are, however, interesting and include:

a.) how evidence on an application for the summary dismissal of proceedings for abuse of process is to be evaluated and assessed;
b.) the role of pleadings in such an application;
c.) the provision of procedural fairness in such an application;
d.) how evidence of a legal practitioner called to give evidence in the interests of his client and instructed to claim client legal privilege is to be evaluated and assessed;

and

e.) the professional obligations of solicitors when filing originating applications or pleadings in the Court.

The sole area of difference between the applications for leave to appeal appears in Mr Harmer’s application, as you would expect. Harmer’s no longer a voice for his client, but is now a participant in the process.

Harmer’s application argues that substantial injustice would be caused if the judgment is allowed to stand as it “… contains serious adverse findings impacting upon the professional reputation and standing of Mr Harmer…” consequently exposing Mr Harmer to the “potential of professional disciplinary action”.

The technical minutiae on issues of unchallenged evidence, evidence limited by professional and legal obligations to a client, and whether there’s an obligation of a judge to give adequate prior notice of his intentions regarding his findings, will no doubt be grist for the academic mill for decades to come on whichever side of the fence the Court of Appeal decides to squat.

There is the likelihood the application for leave to appeal, as well as the substantive issues raised in the appeal applications, will be heard concurrently. This is not uncommon. A betting person would probably wager a few bob on a concurrent hearing as two days have been set aside to hear the matter.

There is a lot riding on the outcome of this case, and not just for the parties directly involved. For a couple of days there will be people in key positions who’ll be holding their breath, not the least being Mr Brough, Miss Doane, some key people in the Opposition, and of course, the Government.

On the matter of costs this last week hasn’t been a great one for Michael Harmer and his firm.

In another sexual harassment case, Richardson v Oracle Australia, Federal Court Justice, Robert Buchanan, in his decision on legal costs, has been extremely critical of Harmer’s firm rejecting settlement offers. His decision suggests in continuing, “… the proceedings would have been conducted solely for the financial benefit of her lawyers.” Her being Miss Richardson.

In the Ashby v Slipper matter the issue of legal costs is dependent upon the outcome of this appeal. It has been slated for consideration by another judge, and will be heard later this month.

More articles that discuss the Oracle decision:

Ex-Oracle worker left with heavy legal price in harassment case

Harmers in firing line over legal costs

Judge criticises law firm over rejection of settlement offer

 James Ashy Affair Archive