{"id":200,"date":"2013-05-03T06:52:37","date_gmt":"2013-05-02T20:52:37","guid":{"rendered":"http:\/\/australiansforhonestpolitics.wordpress.com\/?p=200"},"modified":"2019-04-13T23:24:15","modified_gmt":"2019-04-13T13:24:15","slug":"ashby-appeal-day-1","status":"publish","type":"post","link":"https:\/\/archive.nofibs.com.au\/ashby-appeal-day-1\/","title":{"rendered":"#Ashby appeal, Day 1"},"content":{"rendered":"
\"dn-ashby-main-20130502140948594432-620x349\"

James Ashby, flanked by his parents and his lawyer Michael Harmer at the NSW Supreme court for their appeal application. Photo: Kate Geraghty, Fairfax<\/p><\/div>\n

By Joan Evatt<\/a><\/p>\n

May 3, 2013<\/p>\n

With the exception of Michael Harmer all the key players were there for the media to take quick photos and 15-second video grabs. Peter Slipper and James Ashby are starting to look a little frayed around the edges as they prepare to endure yet another round in this legal saga.<\/p>\n

Yesterday was the first day of a two-day hearing by the Full Court of the Federal Court. Justices Mansfield, Siopis and Gilmour are concurrently hearing both the application for leave to appeal along with the more substantive issues of the appeal itself.<\/p>\n

Justice Mansfield tipped the wink to the parties\u2019 representatives as to how much time the court thought should be allocated to each of the lawyers. For Michael Lee SC, Mr Ashby\u2019s counsel and the first legal cab off the rank, this was always going to be difficult. His job is to plough the field for the first time with no real indication of the legal hoops he may have to jump through when they are presented to him by any one of the justices presiding.<\/p>\n

Lee\u2019s argument is that Rares J. made three fundamental errors resulting in Ashby not being able to present his case in full and therefore \u2018be determined on its merits.\u2019 He put forward the view that Ashby had not received procedural fairness.<\/p>\n

Lee argued that the finding of an abuse of process by Rares J was
\nflawed as the seriousness of that finding required an onus that was a \u2018heavy one\u2019. Rares J needed to be \u2018cautious\u2019 in his consideration of this issue and, according to Mr Lee, Justice Rares wasn\u2019t.<\/p>\n

Mr Lee further argued that Justice Rares adopted an \u2018impressionistic view\u2019 about Mr Ashby\u2019s involvement in a conspiracy to harm Mr Slipper with inferences being drawn that compromised the fact finding process.<\/p>\n

The third error in the Rares decision, according to Mr Lee, involved the conduct of Mr Ashby\u2019s solicitor, Mr Harmer. This was dealt with comparatively briefly as Mr Harmer, now a party to the appeal, is being separately represented by counsel, David Pritchard SC.<\/p>\n

Lee SC also raised concerns about Justice Rares\u2019s rejection of unchallenged evidence. Mr Slipper was representing himself at the time Michael Harmer gave evidence and didn\u2019t subject Harmer\u2019s evidence to any cross-examination.<\/p>\n

Lawyers will tell you it is not necessarily the law where parties representing themselves can come unstuck but rather the lack of knowledge of, or practice in, the procedures required and their importance.<\/p>\n

The rest of the day\u2019s proceedings were occupied by submissions from David Pritchard SC appearing on behalf of Michael Harmer, Mr Ashby\u2019s solicitor.<\/p>\n

The decision of Rares J was especially critical of Mr Harmer, calling into question his professional conduct.<\/p>\n

Questions were asked by their Honours over the level of detail in the originating application drafted by Mr Harmer. This application found its way into the press before Mr Slipper had seen it, as he was overseas at the time.<\/p>\n

The application included details of the \u20182003 allegations\u2019 of a seemingly consensual sexual relationship between Mr Slipper and a member of staff. An allegation of Cabcharge fraud was also included as was the indication of Mr Ashby\u2019s intention to report the matter to the AFP. Of course, the prime allegation was that Mr Slipper had sexually harassed Mr Ashby \u2018in the course of his employment.\u2019<\/p>\n

The game of second guessing what judges are thinking during the progress of a hearing is a long and well-established one. More often than not even the most skilled in this game fail dismally.<\/p>\n

\"Peter

Peter Slipper accompanied by his wife. Photo: Kate Geraghty, Fairfax<\/p><\/div>\n

Questions asked of lawyers during the progress of a case can be deceptive if relied upon. Nevertheless all judges asked plenty of questions during both counsels\u2019 oral submissions. Of seeming significance to their Honours were two issues to which they kept returning.<\/p>\n

The first is the primary or subjective intention of Mr Ashby in bringing this matter to court. Was his original intention to pursue an issue of sexual harassment or was it to use the judicial process to harm Mr Slipper for the benefit of others, namely Mr Mal Brough and the Federal LNP? This is at the core of the \u2018abuse of process\u2019 finding by Rares J.<\/p>\n

The second issue, which resulted in a large number of question and answer sessions throughout the day, was the matter of the \u2018Genuine Steps\u2019 obligation.<\/p>\n

The \u2018Genuine Steps Rule\u2019 is a relatively new set of procedures introduced in the Commonwealth\u2019s \u2018Civil Dispute Resolution Act (2011)\u2019 requiring parties to take necessary alternative measures in an endeavour to resolve their dispute before heading off to court. Both parties in a legal stoush have to file \u2018genuine steps statements\u2019 outlining what they\u2019ve done in trying to settle the dispute.<\/p>\n

The argument put by both Ashby\u2019s and Harmer\u2019s legal representatives for the seemingly inadequate Genuine Steps process, was the one of urgency. All three judges questioned the reasoning behind bringing the matter to court without going through all the alternative remedies available to Mr Ashby.<\/p>\n

At one stage Mr Pritchard was asked the $64,000 question: the matter of payment to Mr Harmer. It was the question by Justice Siopis that caused head-turning consternation at the bar table and was never really answered. Siopis J wanted to know if there would be an apparent difference if Mr Harmer was \u2018an investor in the proceedings?\u2019 The spluttering silence of both legal counsel was his reply, and the question wasn\u2019t pursued.<\/p>\n

Tomorrow morning is the turn of Peter Slipper\u2019s legal representative, Ian Neil SC.<\/p>\n

Read More:<\/p>\n

Justice Rares Judgment<\/a><\/p>\n

Ashby v Slipper Appeal: the first\u00a0round<\/a><\/p>\n

Joan Evatt\u2019s preview of #Ashby\u00a0appeal<\/a><\/p>\n

#Ashby appeal: Slipper\u2019s\u00a0turn<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

By Joan Evatt May 3, 2013 With the exception of Michael Harmer all the key players were there for the media to take quick photos and 15-second video grabs. Peter Slipper and James Ashby are starting to look a little frayed around the edges as they prepare to endure yet another round in this legal […]<\/p>\n","protected":false},"author":29,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"jetpack_publicize_message":"","jetpack_is_tweetstorm":false,"jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false}}},"categories":[3434,59,20,26],"tags":[113,116,216,263,544,367],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p3t0mw-3e","jetpack_likes_enabled":false,"jetpack-related-posts":[],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts\/200"}],"collection":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/users\/29"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/comments?post=200"}],"version-history":[{"count":0,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts\/200\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/media?parent=200"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/categories?post=200"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/tags?post=200"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}