Yesterday (12 December 2012) Justice Rares of the Federal Court of Australia handed down his judgement in Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411. The judgement has thrown out Ashby's sexual harassment claims in an emphatic judgement which among other things found: “that these proceedings are an abuse of the process of the Court. "
Justice Rares found that the "originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper". The judge then questioned various claims saying they "contained the scandalous and irrelevant 2003 allegations and assertion about intended reporting of the Cabcharge allegations to the police."
Finally, Justice Rares concluded that 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."
The key facts
The case was an application by Peter Slipper MP and former Speaker to have the proceedings brought against him by Ashby dismissed or stayed as an abuse of the process of the Court.
The key contention was that an abuse had arisen because the Court's process was 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”.
It was further alleged by Slipper that Ashby had an “improper, predominant purpose for commencing and pursuing … proceedings that he commenced on 20 April 2012 by filing his originating application”.
Ashby accepted a position as an adviser on Slipper's official staff shortly after Slipper became Speaker of the House of Reps in controversial circumstance in 2011, Slippper also resigning his position as a member of the opposition Liberal National Party and sitting as an independent. As a result of this Slipper was then facing a possible challenge for pre-selection for his seat by Mal Brough a former Howard Government minister.
Ashby made serious allegations against Slipper as follows:
- that he had sexually harassed Ashby in the course of his employment verbally, in text messages, and on one occasion, by stroking his arm in his office;
- that in 2003 Slipper 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; and
- that 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 Ashby intended to report these matters to the AFP.
In response Slipper alleged Ashby had “commenced and prosecuted the proceedings in a manner that was seriously and unfairly burdensome, prejudicial and damaging” to him.
Slipper further alleged that Ashby brought and continued the proceedings in combination with one or more co-workers on his staff and Mr Brough and a News Ltd journalist, a media consultant (Anthony McClellan), his solicitor (Michael Harmer and Harmers Workplace Lawyers), for an improper predominant purpose. Finally, Slipper alleged that Ashby had brought and continued the proceedings, for the predominant purpose of forming a political attack on Slipper to aid the Liberal National Party and or Mr Brough so that Ashby and Doane would be able to find new employment with the help of the LNP.
Justice Rares Conclusions
All Quotes below are from the summary of case.
Justice Rares concluded that Ashby's primary consideration in launching proceedings was political and not for redress of a wrong and as such an abuse of process.
To quote “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."
“I am satisfied that these proceedings are an abuse of the process of the Court.”
“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.”
On Slipper's argument of a wider conspiracy which would have included a News Ltd journalist and Ashby’s legal team, Justice Rares did not find such a wide conspiracy existed. He did find collusion at the level of Ashby, Doane and Brough.
“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. "
Justice Rares concluded: "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.”
Comment
This decision is on the one hand a victory for law over lynch mobs. On the other proof that even with a less interested in fact media the truth and justice find a way into the public domain. Serious questions now arise to be answered by he likes of Mal Brough, the people who mentored this in the Liberal National Party who mentored the claims and most of all the leader of the opposition in terms of what he knew of the collusion and what he will do with respect to Mal Brough now an endorsed Liberal candidate.
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