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Federal Court of Australia FEDERAL COURT OF AUSTRALIA Ashby v Slipper [2014] FCAFC 15 Citation: Ashby v Slipper [2014] FCAFC 15 Appeal from: Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 Parties: JAMES HUNTER ASHBY v PETER SLIPPER MICHAEL DANIEL HARMER v PETER SLIPPER and JAMES HUNTER ASHBY File number(s): NSD 22 of 2013 NSD 31 of 2013 Judges: MANSFIELD, SIOPIS & GILMOUR JJ Date of judgment: 27 February 2014 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from decision to dismiss proceedings as an abuse of process – leave to appeal required – principles relating to appellate review – challenge to factual bases upon which proceedings classified as an abuse of process – whether or not improper collateral purpose for bringing proceeding – adverse inferences drawn by primary judge - whether solicitor has standing to appeal in relation to adverse findings made as to the conduct of a proceeding - whether the Court has duty to act in relation to a perceived abuse of process - inferences to be drawn from a failure of a witness to depose to matters in issue - application of the Ferrcom principle. Legislation: Fair Work Act 2009 (Cth) ss 340, 351, 372, 539, 540, 545, 550 Federal Court of Australia Act 1976 (Cth) s 24(1A), 37M(2)(e), Part VB Federal Court Rules 2011 (Cth) rr 2.32, 6.02, 8.05(1)(a), 26.01, 34.05 Evidence Act 1995 (Cth) s 140 Civil Dispute Resolution Act 2011 (Cth) s 6 Legal Profession Act 1987 (NSW) s 57B Revised Professional Conduct and Practice Rules 1995 (NSW) rr A.35, A.36, A.37 Members of Parliament (Staff) Act 1984 (Cth) Australian Human Rights Commission Act 1986 (Cth) s 46PO(1) - 2 - Cases cited: AJ v The Queen (2011) 32 VR 614 Ashby v Commonwealth of Australia [2012] FCA 640 Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297 Axon v Axon (1937) 59 CLR 395 Bale v Mills (2011) 81 NSWLR 498 Ballerini v Shire of Berrigan [2004] VSC 321 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179 Clyne v The New South Wales Bar Association (1960) 104 CLR 186 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commonwealth v Construction Forestry Mining and Energy Union (2000) 98 FCR 31 Commonwealth v Fernando (2012) 200 FCR 1 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 CSR Ltd v Della Maddalena (2006) 224 ALR 1 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd [2003] QSC 299 European Hire Cars Pty Ltd v Beilby Poulden Costello [2009] NSWSC 526 Ex-Christmas Islanders Assn Inc v Attorney General (Cth) (2005) 149 FCR 170 Ex parte Bucknell (1936) 56 CLR 221 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2011) 281 ALR 38 Fountain Selected Meats (Sales) Pty Ltd v International - 3 - Produce Merchants Pty Ltd (1988) 81 ALR 397 Fox v Percy (2003) 214 CLR 118 Grace Worldwide Group v Roberts [2012] NSWSC 1111 Harmer v Oracle Corporation Australia Pty Ltd (2013) 299 ALR 236 Holloway v McFeeters (1956) 94 CLR 470 In re Securities Insurance Company [1894] 2 Ch 410 Senior v Holdsworth, Ex parte Independent Television News Ltd [1976] 1 QB 23 Jago v The District Court of New South Wales (1989) 168 CLR 23 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 Jones v Dunkel (1959) 101 CLR 298 Jones v Skelton [1963] 1 WLR 1362 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Libke v The Queen (2007) 230 CLR 559 Lithgow City Council v Jackson (2011) 244 CLR 352 Malik v Bank of Credit and Commerce International SA (In Compulsory Liquidation) [1998] AC 20 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 Medcalf v Mardell [2003] 1 AC 120 Momibo Pty Ltd v Adam (t/as Marsdens Law Group) (2004) 1 DCLR (NSW) 316 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 Offstage Support Association Inc v Time of My Life Pty Ltd (No 2) (2011) 284 ALR 362 Pearce v WD Peacock & Company Limited (1917) 23 CLR 199 Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 Qantas Airways Ltd v Gama (2008) 167 FCR 537 R v Birks (1990) 19 NSWLR 677 R v Carroll (2002) 213 CLR 635 Re Markham, Markham v Markham (1880) 16 Ch D 1 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 Royal Aquarium and Summer and Winter Garden Society, Limited v Parkinson [1892] 1 QB 431 Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 The Queen v Ireland (1970) 126 CLR 321 Three Rivers District Council v The Governor and Company of the Bank of England [2006] EWHC 816 (Comm) White Industries (Qld )Pty Ltd v Flower & Hart (a firm) - 4 - (1998) 156 ALR 169 Williams v Spautz (1992) 174 CLR 509 Witness v Marsden (2000) 49 NSWLR 429 Date of hearing: 2-3 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 458 Counsel for the Applicant in Mr M B J Lee SC with Ms R Francois NSD 22 of 2013: Solicitor for the Applicant in Harris Freidman NSD 22 of 2013: Counsel for the Respondent Mr I M Neil SC in NSD 22 of 2013: Solicitor for the Respondent in NSD 22 of 2013: Berry Buddle Wilkins Counsel for the Applicant in NSD 31 of 2013: Mr D Pritchard SC with Mr M D Harmer Solicitor for the Applicant in NSD 31 of 2013: Harmers Workplace Lawyers Counsel for the First Respondent in NSD 31 of Mr I M Neil SC 2013: Solicitor for the First Respondent in NSD 31 of Berry Buddle Wilkins 2013: Counsel for the Second Respondent in NSD 31 of 2013: Mr M B J Lee SC with Ms R Francois Solicitor for the Second Respondent in NSD 31 of - 5 - 2013: Harris Freidman IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 22 of 2013 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: JAMES HUNTER ASHBY Applicant AND: PETER SLIPPER Respondent JUDGES: MANSFIELD, SIOPIS & GILMOUR JJ DATE OF ORDER: 27 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave to appeal be granted. 2. The appeal be allowed. 3. The orders made on 12 December 2012 be set aside and in lieu thereof there be orders that: 3.1 the respondent’s interlocutory application dated 8 June 2012 be refused. 3.2 the respondent pay the applicant’s costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. - 2 - IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 31 of 2013 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: MICHAEL DANIEL HARMER Applicant AND: PETER SLIPPER First Respondent JAMES HUNTER ASHBY Second Respondent JUDGES: MANSFIELD, SIOPIS AND GILMOUR JJ DATE OF ORDER: 27 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be refused. 2. The applicant pay the first respondent’s costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 22 of 2013 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: JAMES HUNTER ASHBY Applicant AND: PETER SLIPPER Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 31 of 2013 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: MICHAEL DANIEL HARMER Applicant AND: PETER SLIPPER First Respondent JAMES HUNTER ASHBY Second Respondent JUDGES: MANSFIELD, SIOPIS AND GILMOUR JJ DATE: 27 FEBRUARY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT MANSFIELD AND GILMOUR JJ: 1 The applicant, James Ashby, seeks leave to appeal and to appeal from an interlocutory judgment of a judge of this Court delivered on 12 December 2012 by which Ashby’s application against the second respondent, Peter Slipper, was dismissed as being an abuse of the process of the Court. We are satisfied that Ashby should be granted leave and that his appeal should be allowed. - 2 - 2 There is a further application before the Court. Michael Harmer, of Harmers Workplace Lawyers (Harmers), Ashby’s solicitor, was not a party to the proceeding but is the subject of adverse findings made by the primary judge. These findings also attached to Ashby. Harmer personally seeks leave to appeal and to appeal the judgment. We agree with Siopis J, having had the benefit of considering his reasons in draft, that Harmer ought not be granted leave to appeal.
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