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By\u00a0Joan Evatt<\/a><\/p>\n May 3, 2013<\/p>\n It was Peter Slipper\u2019s turn today in Day 2 of the Ashby v Slipper Appeal. Slipper was represented by well-known Sydney silk, Ian Neil SC. He had to wait for twenty minutes or so while Michael Lee SC endeavoured to add further to his submissions from yesterday.<\/p>\n The issues Lee wanted to expand on were questions about the urgency of Ashby\u2019s application preventing Ashby and his representatives from pursuing all alternative remedies available to him on the sexual harassment issue.<\/p>\n Lee also raised the question of whether there was evidence given on what was in the mind of Michael Harmer on the question of \u2018genuine steps.\u2019<\/p>\n He got short shrift from Justice Siopis. As Mr Lee had a right of reply following Ian Neil\u2019s submissions it may have been more circumspect to wait until then to raise these issues.<\/p>\n It is the role of Mr Neil SC to argue that the decision of Justice Rares is correct and should stand. He outlined in order nine subject headings raised in the written submissions of Ashby and Harmer he wanted to address.<\/p>\n \u201cThe best laid plans of mice and men \u2026\u201d on paper this would have looked neat and logical. In reality their Honours were feisty and challenging. For most of the remainder of the morning Neil\u2019s oral submissions were punctuated with rugged questioning as we bounced from issue to issue making it increasingly difficult for those few from the media and the general public present to follow with any confidence.<\/p>\n At no stage did Mr Neil show any impatience with or discomfiture by this morning\u2019s proceedings. It is worth noting that he didn\u2019t wilt under the pressure either, but continued to argue the merits of his case.<\/p>\n Neil started his oral submission considering the questions of procedural fairness as raised in the Ashby submission. In his decision Rares J is satisfied Slipper established that Mr Ashby had combined with one or more of the persons named as part of the conspiracy that would result in his finding \u2018an abuse of the process\u2019.<\/p>\n Justice Gilmour asked whether it only related to Mr Harmer. Mr Neil\u2019s answer took the court down a grammatical path. A definitive \u201cNo Your Honour\u201d was his response. The relevant paragraph in Rares\u2019s decision \u2018has to relate conjunctively\/disjunctively with each, some or all of the persons named\u2026 It\u2019s inelegant English but it\u2019s not bad syntax and its meaning is clear.\u2019 His Honour didn\u2019t continue asking questions about sentence structure.<\/p>\n The grammar lesson set the tone of the rest of the morning\u2019s hearings.<\/p>\n Rares J found in his decision that Mr Harmer wasn\u2019t part of the conspiracy to abuse the process of justice – that he was an innocent party in bringing the court into disrepute. However, Rares was very critical of the \u2018professional conduct\u2019 of Mr Harmer, commencing with his drafting of the originating application.<\/p>\n Justice Siopis asked whether it was legitimate to question the decision\u2019s criticisms and their severity of Mr Harmer on professional grounds. Mr Neil replied that Mr Harmer was ultimately responsible for both the 2003 allegations and the Cabcharge allegations being included in Mr Ashby\u2019s originating application. Both of these allegations were abandoned in Mr Ashby\u2019s 15th May 2012 statement of claim.<\/p>\n Of course by then these allegations had become front page news, as they formed part of the originating application.<\/p>\n Peter Slipper and his wife Inge leave the Federal Court in Sydney.<\/p><\/div>\n Suddenly we were off track again and trying to ascertain Mr Harmer\u2019s purpose in the inclusion of both the 2003 allegations and the Cabcharge allegations in the originating application.<\/p>\n Neil was steely in arguing that there was just no legitimate forensic purpose to the inclusion of 2003 allegations. It is just \u2018salacious detail\u2019 with no illegality or wrongdoing on Mr Slipper\u2019s part, and \u2018which can\u2019t give rise to any legal consequences or any cause of action.\u2019<\/p>\n Bounce. Bounce. Suddenly the court\u2019s in the middle of discussing Mr Ashby\u2019s predominant purpose which Rares found, after looking through a truckload of text messages and emails, to be the intention of bringing Mr Slipper into disrepute.<\/p>\n Mr Slipper was representing himself when these issues were raised before Justice Rares. Mr Harmer went into the witness box, and Mr Ashby could have been called by Mr Slipper, but wasn\u2019t. Both men were not cross-examined by Slipper as to their intent. All their Honours have raised, through thorough questioning, the lack of cross-examination by Slipper of both Ashby and Harmer, which would indicate it could be a problem.<\/p>\n The difficulty of hearing concurrently both an application for leave to appeal and the substantive appeal itself, was made abundantly clear when Mr Neil suddenly raised arguments against Mr Harmer being given leave to appeal the Rares decision.<\/p>\n The morning came alive, and stayed on topic when Mr Neil raised the question of Mr Harmer\u2019s ability to appeal as a non-party. He argued that Mr Harmer didn\u2019t have a \u2018sufficient interest\u2019 in the matter to appeal.<\/p>\n Neil argued that despite the fact the Rares J raises questions with regard to the professional conduct of Mr Harmer, such findings in themselves have no legal effect. The right to appeal can only happen if and when orders were made against Mr Harmer. They haven\u2019t.<\/p>\n Neil went on to state \u2018there is no authority anywhere\u2019 that supports a non-party being given leave to appeal if he doesn\u2019t have \u2018sufficient interest\u2019 nor does Mr Harmer meet any of the tests outlined in the Federal Court Rules, 2011.<\/p>\n The implication of Mr Neil\u2019s point was clear. If their Honours grant Mr Harmer leave to appeal they will be creating a precedent that could well open the flood gates to aggrieved third parties who may be mentioned adversely in findings.<\/p>\n For the first time in the morning\u2019s session their Honours became very quiet as the implication of Neil\u2019s point sank in.<\/p>\n The remainder of Mr Neil\u2019s arguments in support of the Rares decision seemed almost inconsequential by comparison. It dealt with the General Steps Statement and the matter of Ashby\u2019s perceived urgency.<\/p>\n The right of reply by both Mr Lee and Mr Pritchard were thankfully brief. Mr Pritchard endeavoured to counter Neil\u2019s arguments against granting Mr Harmer leave to appeal. He raised the issue of natural justice, which had already been dealt with by Neil in his original written submissions.<\/p>\n Mr Neil earned his money today.<\/p>\n The matter is now for the consideration of the Full Court. These are the options they have before them.<\/p>\n 1. Neither leave to appeal is successful and the Rares decision stands; Your guess is as good as mine as to how their Honours will find in this case. Options 2 and 3 provide easier alternatives without creating a precedent for which the rest of the legal fraternity won\u2019t thank them.<\/p>\n Read More:<\/p>\n Ashby v Slipper Appeal: the first\u00a0round<\/a><\/p>\n Joan Evatt\u2019s preview of #Ashby\u00a0appeal<\/a><\/p>\n #Ashby appeal, Day\u00a01<\/a><\/p>\n Submissions in the Ashby\/Harmer\/Slipper appeal\u00a0<\/a><\/p>\n![\"Peter](\"https:\/\/i0.wp.com\/nofibs.com.au\/wp-content\/uploads\/2013\/05\/20130502000689931362-original_fct1024x772x17_t460.jpg?resize=460%2C346\")
\n2. Harmer\u2019s leave to appeal is unsuccessful but Ashby \u2018s leave to appeal is successful but Ashby loses the appeal and the Rares decision stands;
\n3. Harmer\u2019s leave to appeal is unsuccessful but Ashby wins both his leave to appeal and the appeal itself. The result is that the trial of Ashby v Slipper is then heard in full;
\n4. Harmer and Ashby win their leave to appeal, but lose the appeal proper and the Rares decision stands;
\n5. Harmer and Ashby win both their leave to appeal and the appeal proper. The result is that the trial of Ashby v Slipper is then heard in full. Slipper will be open for legal costs from Harmer as well as Ashby.<\/p>\n