14 December 2012

If you're going to sue someone, get it right


(NB for those of you who think I may have a prejudice, I have never voted for the Australian Labor Party).

In December 2012 the Federal Court handed down a decision in Ashby v Commonwealth of Australia & Anor (No 4) [2012] FCA 1411 (12 December 2012). It was interesting because of the notorious reputation of the parties - the respondent (the person who was sued) was the Speaker of the House of Representatives and the applicant (the one doing the suing) was one of his staff members. Mr Ashby also sued the Commonwealth of Australia (the technically correct name of Australia), since the Speaker is an official of Australia and Mr Ashby was therefore actually employed by the Commonwealth.

The originating application was made pursuant to the Fair Work Act 2009, and was ultimately dismissed pursuant to r 26.01(1) of the Federal Court Rules 2011. That rule deals with abuse of process, and the Court ordered that Mr Ashby (the complainant) pay the costs of Mr Slipper (the former Speaker). This is an exceptional order in the Fair Work Act jurisdiction.

Mr Ashby started working for Mr Slipper on 22 December 2011. Mr Slipper had been Speaker for about a month and his party (the Queeensland Liberal National Party) had "dumped" him. He was therefore an independent.

On 20 April 2012 Mr Ashby sued Mr Slipper, making a number of allegations. Mr Slipper responded by applying to have the claim dismissed as an abuse of the process of the Court. This kind of application is very serious, because it means that the Court stops a court case in its tracks - the case is never heard. That sort of power needs to be used carefully, because even a weak case needs to have its day in court. However, an abusive case is a waste of the Court's time and the Court should be able to terminate it at an early stage.

The dramatis personae in this case were James Ashby (the applicant), Peter Slipper (the second respondent), the Commonwealth of Australia (the first respondent), Karen Doane (a staffer for Mr Slipper), the Hon Malcom Brough (a senator who wanted to move to the House of Representatives), Steve Lewis (a journalist at News Limted), Anthony McClellan (a media consultant), Peter Clyne (a barrister), and the solicitor for Mr Ashby Michael Harmer (well known in industrial relations legal circles and also for having a stoush with a former legal partner).

A proper analysis of this case would take quite some time, so we'll have a look at a few key points (with my emphases):

"5. Mr Slipper also argued that the proceeding should be characterised as an abuse of the process of the Court because it was commenced and prosecuted in a manner that was seriously and unfairly burdensome, prejudicial and damaging to him, or productive of serious and unjustified harassment. He argued that the proceedings were commenced and prosecuted in a manner that brought the administration of justice into disrepute, based on those vexatious and oppressive features together with the allegedly improper purpose of Mr Ashby and his confederates. He also contended that the process of the Court had been used as an instrument of a calculated and orchestrated political and public relations campaign with the object of harming him, aiding his political opponents and advancing the interests of Mr Ashby and Ms Doane."
Mr Ashby had, amongst other things,  made allegations known as the 2003  and Cabcharge allegations, which were later abandoned in the Statement of Claim, which was filed on 15 May 2012. Mr Slipper noted that no evidence of these allegations was filed, and the Court found that Mr Harmer had breached his professional obligation "not to misuse his privilege to make allegations under absolute privilege in Court documents." (para 190).

The Court came down pretty hard at this point:
"Mr Harmer knew that Mr Ashby had the right, if not the duty, to go to the police with any concerns he genuinely had about Mr Slipper’s use of Cabcharge vouchers. But, the pleading of Mr Ashby’s intention to do so had no legitimate forensic purpose. His inclusion of irrelevant assertion of Mr Ashby’s intention to go to the police in the originating application was an abuse of the process of the Court for the same reasons as was the submission of the barrister, Peter Clyne in open court that a solicitor, Mr Mann, had been guilty of professional misconduct."
"191. Here, it is difficult to avoid the conclusion, that I draw, namely that the inclusion in the originating application of the assertion that Mr Ashby intended to report the Cabcharge allegations to the police, offered him and Mr Harmer the opportunity to make a more serious public attack on Mr Slipper than would have been the case merely by making the balance of the Cabcharge allegations. That attack, in the form it was made, was a misuse of Mr Harmer’s privilege as a lawyer. The use of the Court’s process to make that attack in that form was an abuse of process."
I can't put it any better than the Federal Court:
"For the reasons above, 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 that Mr Ashby intended to report to the police Cabcharge allegations. 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 all the Cabcharge allegations, the features that I have criticised 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, irrelevant or 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."
A lot of comments could be made about these portions of the judgement, but a lesson from this case is that one should only plead allegations that are intended to be made, intended to be pursued at trial, and are supported by evidence.

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