Ashby v Commonwealth of Australia (No 4)
[2012] FCA 1411
RARES J
summary
In accordance with the practice of the Federal Court in some cases of public interest, the following Summary has been prepared to accompany the reasons for judgment delivered today. The Summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The published reasons for judgment and this Summary will be available on the Internet at www.fedcourt.gov.au.
Ashby v Commonwealth of Australia (No 4)
[2012] FCA 1411
RARES J
SUMMARY
This is an application by the second respondent, the Hon Peter Slipper MP, to have the proceedings brought against him by the applicant, James Ashby, dismissed or stayed as an abuse of the process of the Court. An abuse can occur when the Court’s process is employed for an ulterior or improper purpose, or in an improper way, or in a way that would bring the administration of justice into disrepute among right thinking people. Mr Slipper alleged that Mr Ashby had an improper, predominant purpose for commencing and pursuing these proceedings that he commenced on 20 April 2012 by filing his originating application.
Mr Ashby accepted a position as an adviser on Mr Slipper’s official staff shortly after he became the Speaker of the House of Representatives late in 2011. The circumstances in which Mr Slipper became the Speaker were controversial. He resigned his position as a member of the opposition Liberal National Party (LNP) and sat as an independent. Mr Slipper was then facing a possible challenge for LNP pre-selection for his seat by the Hon Mal Brough. Mr Ashby was a member of the LNP and had provided Mr Slipper with voluntary assistance prior to joining his staff.
Mr Ashby’s originating application made a number of serious allegations against Mr Slipper. Those allegations concerned events in the period of about three months between his commencing employment and late March 2012. Mr Slipper departed for overseas on a Parliamentary delegation on 24 March 2012. That was also the day of the Queensland State election at which the LNP was returned to State Government.
The originating application asserted that the allegations it contained were supported “by sworn/affirmed evidence”. It was in an irregular form but read like a pleading. In it, Mr Ashby’s principal allegations were that:
Mr Slipper had sexually harassed Mr Ashby in the course of his employment verbally, in text messages, and on one occasion, by stroking his arm in his office (the sexual harassment allegations);
in 2003 Mr Slipper had had relationship of a sexual nature with a younger male member of his staff and an encounter between them had been recorded on a video. A viewer of the video had concluded that the relationship depicted was consensual (the 2003 allegations); and
Mr Ashby had been forced on three occasions in late January to mid February 2012 to watch Mr Slipper sign multiple Cabcharge vouchers during his employment and hand them to the driver of a vehicle in which they both travelled and that Mr Ashby intended to report these matters to the Australian Federal Police (the Cabcharge allegations).
Mr Slipper alleged that Mr Ashby had commenced and prosecuted the proceedings in a manner that was seriously and unfairly burdensome, prejudicial and damaging to Mr Slipper. He also alleged that Mr Ashby brought and continued the proceedings, in combination with one or more of a co-worker on Mr Slipper’s staff, Karen Doane, Mr Brough, a journalist, Steve Lewis, a media consultant, Anthony McClellan, his solicitor, Michael Harmer and Harmers Workplace Lawyers, for an improper, predominant purpose. Mr Slipper alleged that Mr Ashby had brought and continued the proceedings, with one or more of those people, for the predominant purpose of forming a part of a political attack on Mr Slipper to aid the LNP and or Mr Brough so that Mr Ashby and Ms Doane would be able to find new employment with the help of the LNP.
There was a great deal of documentary evidence, including about 270 pages of Mr Ashby’s text messages with Mr Slipper and many other people. On 1 February 2012, Mr Ashby had an exchange of text messages with Mr Slipper. That exchange could be read as conveying a proposal by Mr Slipper that the two have a “closer”, and hence sexual, relationship. Mr Ashby rebuffed whatever the proposed closer relationship was. The next day Mr Ashby went to see Mark McArdle, a senior frontbencher in the then Queensland State LNP opposition. There was no hint, in contemporaneous texts with his friends, of Mr Ashby feeling upset as a result of sexual harassment. Rather those texts suggested that he was planning to use the record of his texts with Mr Slipper to empower others in a way that would affect the balance of power in the House of Representatives. Mr Ashby asked one friend whether his contemplated action would result in his being “rewarded or condemned”. However, he did not take any action at that time.
On 26 February 2012, Mr Ashby and Mr Slipper had an argument in texts concerning Mr Ashby’s public support of LNP candidates in the State election campaign. Mr Slipper suggested that such activity could be seen as politically damaging and disloyal to him. Mr Ashby wrote, forcefully, that he would not have his private life managed and that he was free to work publicly in his own time in support of his LNP friends.
In early to mid March 2012, Mr Ashby asked Mr Slipper if he could accompany him, at Mr Ashby’s own expense, on part of the overseas trip with the Parliamentary delegation later that month. On 16 March 2012, Mr Slipper told Mr Ashby in an email that his “excellent suggestion” could not be implemented because of the problem it would create with public perceptions.
As soon as the State election had occurred, Mr Ashby told Mr McArdle that he had decided to press ahead with what he and Mr Ashby had talked about in early February 2012. Mr Ashby and Ms Doane immediately made contact with Mr Brough and Mr Lewis. Previously, Mr Ashby and Mr Slipper had expressed very hostile feelings to one another about both Mr Brough and Mr Lewis.
By 29 March 2012, Mr Ashby and Ms Doane were supplying Mr Brough and Mr Lewis with copies of Mr Slipper’s diaries for dates in 2009 and 2010 that Mr Lewis had requested. Mr Lewis had been reporting for about two years on what he alleged were abuses “of the public purse” by Mr Slipper. Mr Ashby and Ms Doane discussed how what they were doing was going on a “journey” together. Mr Brough was helping them seek out job opportunities with the new LNP State Ministers and senior LNP figures, including, in Ms Doane’s case, the entrepreneur Clive Palmer. Mr Brough also arranged for Mr Ashby to see a lawyer for a nominal fee about his sexual harassment claim. The lawyer was a prominent LNP figure, David Russell QC.
Mr Russell QC and Mr Brough met with Mr Ashby and Ms Doane on Good Friday, 6 April 2012. Mr Russell QC, a tax lawyer, told Mr Ashby that he would need to have a lawyer act for him who practised in the field of sexual discrimination to look at his claims further to see if they were worth pursuing. Mr Ashby mentioned Harmers. During the meeting Mr Ashby mentioned his concerns that on one occasion, not three, he had seen Mr Slipper hand over three incomplete Cabcharge dockets to a driver. Both Mr Russell QC and Mr Brough said that this seemed irregular. Mr Brough observed that it was possible that Mr Slipper may have been within his entitlements if the dockets related to three different journeys. Mr Russell QC also told Mr Ashby and Ms Doane that the LNP could not help them in their careers if they proceeded with what they were discussing.
In the meantime, Mr Lewis had flown up to the Sunshine Coast from Sydney and met Mr Ashby on 4 April 2012. Mr Lewis arranged for his employer, a News Ltd company, to pay for Mr Ashby to stay at a Sydney hotel the next week while he saw Mr Harmer and lawyers at his firm.
Mr Ashby claimed two weeks sick leave from Tuesday 10 April 2012 when he travelled to Sydney and went into what he described as “lockdown”. He texted another friend that day writing “… it’s all about to erupt. Stories likely to start coming out in Thursday’s paper. Sexual harassment case likely to come out next week. Legal team meeting me in Sydney at 8 pm pro bono”.
Mr Harmer recommended that Mr Ashby engage Mr McClellan as his media consultant to handle dealings with the media because Mr Slipper would be a high profile respondent in the intended proceedings. Mr Ashby and Ms Doane engaged Mr McClellan at $550 per hour plus GST on a no win no fee basis.
On Monday 16 April 2012, Mr Lewis published stories in major News Ltd newspapers. His article in the Daily Telegraph detailed alleged irregularities and excesses in Mr Slipper’s use of his parliamentary entitlements.
Once the originating application was filed on 20 April 2012, a reporter from the Daily Telegraph obtained access to it under the Federal Court Rules. Mr Lewis emailed Mr Slipper in New York, as he was preparing for the journey home, asking for his comments about allegations in Court documents of sexual harassment by a staff member and of fraud against the Commonwealth. Harmers also emailed Mr Slipper a copy of the originating application.
On the next day, 21 April 2012, News Ltd newspapers broke the story. In Mr Lewis’ words Mr Slipper was “facing explosive allegations he sexually harassed a young male adviser and misused taxpayer-funded Cabcharge dockets in a major new crisis for the Gillard Government”.
On 15 May 2012, senior counsel for Mr Ashby settled a statement of claim that alleged that Mr Slipper sexually harassed Mr Ashby but did not repeat the 2003 and Cabcharge allegations.
I have concluded that the inclusion by Mr Ashby and Mr Harmer of each of the 2003 allegations and the assertion that Mr Ashby intended to report the Cabcharge allegations to the police in the originating application was an abuse of the process of the Court. The 2003 allegations dealt with what was apparently consensual behaviour and included details that were intended to demean Mr Slipper for no legitimate forensic purpose. Mr Harmer had no sworn or affirmed evidence from anyone who could establish that in 2003 Mr Slipper had sexually harassed his staff member, who was, in fact, working for Mr Slipper in 2011 and 2012. The 2003 allegations were irrelevant and scandalous.
I have also concluded that the part of the Cabcharge allegations concerning Mr Ashby’s intention to report them to the police was included by Mr Ashby and Mr Harmer for the purpose of injuring Mr Slipper and for no legitimate forensic purpose. Handing over multiple signed but incomplete vouchers may well have been odd and questionable, but the assertion that Mr Ashby had intended to report the Cabcharge allegations to the police was irrelevant to the allegation that Mr Slipper had involved Mr Ashby in questionable conduct in relation to travel.
Mr Ashby and Mr Harmer knew that the allegations in the originating application were made under absolute privilege when it was filed in the Court. And, they knew that Mr Lewis, or his colleagues, would be on the alert to obtain a copy from the Court once Mr Ashby’s originating application was filed. The clear imputation conveyed by the Cabcharge allegations, because of the inclusion of the assertion that Mr Ashby intended reporting them to the police, was that Mr Slipper was guilty of misusing Commonwealth funds. It would be one thing for Mr Ashby to have taken any genuine concerns he had privately to the police. It was quite another to use a publicly available Court pleading to announce that Mr Ashby had the intention to do so. The reason Mr Ashby and Mr Harmer took the latter course was to make a public attack on Mr Slipper that his conduct would be reported to the police so as to suggest that he was guilty of misusing Commonwealth funds.
I have found that Mr Slipper has not proved that Mr McClellan or Mr Lewis acted as part of a combination with Mr Ashby as alleged.
I have reached the firm conclusion that Mr Ashby’s predominant purpose for bringing these proceedings was to pursue a political attack against Mr Slipper and not to vindicate any legal claim he may have for which the right to bring proceedings exists. Mr Ashby began planning that attack at least by the beginning of February 2012. As Mr Ashby and Ms Doane agreed in their texts of 30 March 2012 what they were doing “will tip the govt to Mal’s [Brough] and the LNP’s advantage”.
I am satisfied that these proceedings are an abuse of the process of the Court. The originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper. It contained the scandalous and irrelevant 2003 allegations and assertion about intended reporting of the Cabcharge allegations to the police. To allow these proceedings to remain in the Court would bring the administration of justice into disrepute among right-thinking people and would be manifestly unfair to Mr Slipper. Even though Mr Ashby has now abandoned the 2003 and Cabcharge allegations in their entirety, they did the harm to Mr Slipper that Mr Ashby and Mr Harmer intended when those allegations were included in the originating application. A party cannot be allowed to misuse the Court’s process by including scandalous and damaging allegations, knowing that they would receive very significant media coverage, and then seek to regularise his, her or its pleading by subsequently abandoning those claims.
Sexual harassment of anyone, including an employee such as Mr Ashby, is a violation of the person’s human dignity and rights. The Court must always be available for the hearing and determination of bona fide proceedings to vindicate and protect those rights. But for the reasons I have given, Mr Ashby’s pre-dominant purpose in bringing the proceedings was not a proper one.
Even though I have not found that the combination was as wide as Mr Slipper alleged in his points of claim, the evidence established that Mr Ashby acted in combination with Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough. Mr Ashby and Ms Doane set out to use the proceedings as part of their means to enhance or promote their prospects of advancement or preferment by the LNP, including by using Mr Brough to assist them in doing so. And the evidence also established that other aspects of the proceedings were an abuse of the process of the Court for the reasons I have given.
Accordingly, I am satisfied that the exceptional situation that enlivens the Court’s power to dismiss proceedings as an abuse has been proved to the heavy standard required. The duty and power of the Court to protect its own processes require that I give effect to the findings I have made by dismissing the proceedings with costs.
