Ashby v Commonwealth of Australia (No 4): Abuse of Process

In Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 (12 December 2012) Rares J has thrown out the Ashby sexual harassment claims in an emphatic judgement which among other things says:

“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.” 

Background

The case was an application by the second respondent (Peter Slipper MP) to have the proceedings brought against him by the applicant (Ashby) dismissed or stayed as an abuse of the process of the Court. 

The 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 alleged by the second respondent that the applicant (Ashby) had an “improper, predominant purpose for commencing and pursuing … proceedings that he commenced on 20 April 2012 by filing his originating application”.

The applicant (Ashby) accepted a position as an adviser on Slipper's official staff shortly after he became Speaker of the House of Reps in 2011 in controversial circumstances resigning his position as a member of the opposition Liberal National Party and sitting as an independent. Slipper was then facing a possible challenge for pre-selection for his seat by Mal Brough a former Howard Government minister.  

The applicant (Ashby) made serious allegations against Slipper. 

• 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. 

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.

Findings of Rares J

Quotes from summary of case:

“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.”

Rares J, did not find a conspiracy had come about as wide as the one alleged by Slipper which would have included a News Ltd journalist and Ashby’s legal team but did find a conspiracy existed:

“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.”

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