There has now been quite a bit of discussion about this week’s dismissal of James Ashby’s sexual harassment proceedings against former Speaker of the House of Representatives Peter Slipper for abuse of process (although nowhere near as much as the salacious coverage when Ashby’s ambush claim was first launched on 20 April. I wrote about the seemingly slender merits of Ashby’s claim shortly afterwards.
I want to focus on the role of Michael Harmer, Ashby’s aptly named lawyer, in orchestrating what Richard “Justinian” Ackland rightly calls a “shakedown” and “one of the grubbiest, underhand, unmeritorious, political assaults on a government in recent democratic memory, fanned by leading adornments of the Liberal Party”.
The core of the abuse of process involved in this case is also succinctly summarised by Ackland:
The judge explained the inclusion of allegations about misuse of Cabcharge dockets and a previous sexual relationship between Slipper and a young member of his staff, were designed to injure the parliamentarian for no legitimate forensic purpose.
They were irrelevant and scandalous, and were designed to maximise and inflame the media coverage.
Those superfluous flourishes were withdrawn when the statement of claim was filed a month after the originating application.
The real purpose of this litigation was to fire-up an attack not just on Slipper but on the government, and to seek to bring about its downfall.
It’s worth spelling out exactly why Harmer’s (and Ashby’s) conduct was so disgraceful, especially in Australia’s common law legal system.
Pleadings in court proceedings (and indeed court documents generally) are absolutely privileged from action for defamation for any allegations contained in them((See Defamation Act (NSW) section 27(2)(b) ~KP)). It isn’t difficult to see that such a privilege must exist if litigants are to be able effectively to prosecute or defend any claim.
By contrast, journalists do not enjoy absolute privilege for publishing reports about legal proceedings and/or court documents. Media privilege is qualified by the requirement that the report or summary must be a fair one.((See Defamation Act (NSW) sections 28 and 29. ~KP)) However, it isn’t difficult to fairly summarise an originating application in a sexual harassment matter relating to a prominent person where the lawyer has carefully crafted every paragraph of it to be scandalously newsworthy.
However, the sustainability of absolute privilege attaching to court documents themselves is heavily dependent on legal practitioners always honouring their ethical obligations not to abuse that privilege. Professional conduct rules in all states and territories contain detailed provisions about such conduct. The relevant NSW rules (which apply to Michael Harmer) are as follows:
A.35. A practitioner must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the practitioner or on the practitioner’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:
(a) are reasonably justified by the material already available to the practitioner;
(b) are appropriate for the robust advancement of the client’s case on its merits;
(c) are not made principally in order to harass or embarrass the person; and
(d) are not made principally in order to gain some collateral advantage for the client or the practitioner or the instructing practitioner out of court.
A.36. A practitioner must not allege any matter of fact in:
(a) any court document settled by the practitioner;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence; unless the practitioner believes on reasonable grounds that the factual material already available provides a proper basis to do so.
A.37. A practitioner must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the practitioner believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it; and;
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
In his answering affidavit to Slipper’s (ultimately successful) abuse of process application, Harmer deposed to being fully aware of these ethical obligations (see paragraphs 11-13). However, as Rares J found, he blatantly ignored and flouted those obligations:
A lawyer cannot properly make an allegation on originating application or pleading in this Court that departs from the standard of propriety set by the High Court in Clyne 104 CLR at 200-201. A lawyer cannot open a case in court by making statements that may have ruinous consequences to the person attacked that the lawyer cannot substantiate or justify by evidence. Similarly, a lawyer cannot plead such statements and assert that they are supported by sworn or affirmed evidence, when he or she does not have a reasonable basis for making such an assertion. …
Mr Harmer was aware how damaging the making of each of the 2003 and Cabcharge allegations as a whole would be to Mr Slipper and his reputation. As he appreciated, this would be a “high profile workplace case” that would attract publicity about Mr Slipper who was a “high profile respondent”. The imputation of not just misuse, but criminal misuse, of the Cabcharge dockets was obviously likely to damage Mr Slipper. So too were the 2003 allegations. The deployment by Mr Harmer in the originating application of the scandalous and irrelevant 2003 allegations and the assertion that Mr Ashby intended to report the Cabcharge allegations to the police, had no legitimate forensic purpose. No lawyer acting responsibly could have included either of those matters (leaving aside what would have been the position in respect of the Cabcharge allegations had the reference to the intention to report them to the police been omitted) in the originating application to make what would become a public attack on Mr Slipper when it was filed: Clyne 104 CLR at 200-201. Their inclusion made the originating application an abuse of the process of the Court.
Moreover, it appears that such conduct is Harmer’s standard modus operandi. As Rick Fenely and Paul Bibby note in the Sydney Morning Herald:
The judge in the David Jones case was similarly unimpressed with an attempt to include allegations of harassment, by anonymous women, against McInnes.((No proceedings or evidence from these women ever materialised. ~KP))
Fraser-Kirk’s explosive statement of claim was timed for maximum effect, lodged the day before the DJs’ spring-summer fashion launch. McClellan called Sydney journalists to tell them the court papers were to be lodged.
Inclusion of scandalous and irrelevant material in the originating application was only half of Harmer’s well rehearsed litigious character assassination technique, however. The other half involves taking the opponent by complete surprise in a litigation ambush. That technique was used by Harmer in the Fraser-Kirk litigation as well, as Fenely and Bibby observe. However, by the time Ashby’s proceedings were commenced it had become a little harder to launch a blitzkrieg character assassination attack while retaining the huge advantage of taking your opponent by complete surprise (especially if you have tame media all lined up, as Harmer always does).
Since April last year most federal proceedings (including the Ashby proceeding because it included a claim for common law damages) have been governed by the Civil Dispute Resolution Act 2011 (Cth). Its primary object is “to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted”. For that purpose, parties are expected before proceedings commence to notify each other of the basis of their claim and issues in dispute, disclose relevant documents, and enter (or offer to enter) into settlement negotiations or alternative dispute resolution processes.
Of course, there was no way Harmer was going to do any of those things, because they would have put Slipper on notice and thwarted the blitzkrieg media character assassination campaign he was busily orchestrating. Failure to take genuine steps aimed at resolution of disputes before commencing proceedings can have serious costs and other consequences. Fortunately (or so it no doubt seemed at the time), the Civil Dispute Resolution Act itself offered Harmer a potential avoidance tactic. Section 6 provides:
(1) An applicant who institutes civil proceedings in an eligible court must file a genuine steps statement at the time of filing the application.
(2) A genuine steps statement filed under subsection (1) must specify:
(a) the steps that have been taken to try to resolve the issues in dispute between the applicant and the respondent in the proceedings; or
(b) the reasons why no such steps were taken, which may relate to, but are not limited to the following:
(i) the urgency of the proceedings;
(ii) whether, and the extent to which, the safety or security of any person or property would have been compromised by taking such steps.
As Rares J notes:
The Genuine Steps Statement 1 baldly stated:
“1. The matter is urgent and
2. The matter involves aspects of victimisation. Alerting the Respondents to the matter would only increase the opportunity for victimisation.”
In fact no evidence of objective urgency was ever adduced and no urgency existed. Moreover, an unparticularisd pleading of “victimisation” in the initial irregularly drafted Originating Application of 20 April ((note that rather unusually almost all the court documents in Ashby v Slipper are available on the Federal Court website. ~KP)) was completely abandoned (along with scandalous and irrelevant material about alleged activities by Slipper in 2003 and claims about possible misuse of Cabcharge vouchers, as well as most of the salacious text messages that had been included in the disgraceful originating Application) when a proper Statement of Claim was eventually filed on 21 May. Rares J’s scathing finding about Harmer’s urgency claim was:
Mr Harmer did not explain why he decided to file the originating application on 20 April 2012, just at the time Mr Slipper was about to leave New York for home. Nor did he explain what the urgency was that he asserted in the genuine steps statement. There was no need for urgency that was apparent on the evidence except if the plan had been to raise the allegations in the originating application when Mr Slipper would have great difficulty, while travelling, in responding and putting his position. Mr Ashby had begun collaborating with Ms Doane and Mr Brough shortly after Mr Slipper left for overseas on 24 March 2012. Mr Ashby is highly likely to have told Mr Harmer that Mr Slipper was overseas and when he was to return.
As for Harmer’s assertion that alleged “victimisation” by Slipper justified commencement of proceedings by ambush, not only was that claim not ultimately pursued at all, but it was also effectively torpedoed by his own client. Somewhat ironically, Ashby’s penchant for endless text messages about everything under the sun not only provided the raw fodder for Harmer’s character assassination strategy, it also contributed in no small measure to its deserved demise. In a text message to a friend only days before the Originating Application was filed and instantly leaked to Murdoch journalist Steve Lewis, Ashby said:
Hey glen. I mean Nathan. I mean glen lol. So sorry bout that. It’s been a day from hell. I think it all came crashing down on me when the lawyers said they would like me to have 24 hr security with me to avoid death. That really hit home what I’m dealing with. I broke down and had a bit of a teary moment with the journos today. I fucking hate weak pricks but the assassination remark hit a raw nerve. I’m back in meetings tomorrow at 8am. I spent the night with Steve Lewis who is the news ltd journo. Nice guy. I really needed a drink tonight to take the edge off a very long day. Hope you’re all good. I’ll be back in Qld somewhere by the weekend. Can’t say exactly where cause the sexual harassment story will likely break by the weekend or Monday. Chat soon. :)
In other words, Ashby harboured no concerns about his own safety until his lawyers told him that he should! He was blatantly coached by his lawyers. One suspects Harmer intended to make more of Ashby’s alleged fears had his client not sent a SMS that let the cat out of the bag. As it transpired, Harmer was only able in his answering affidavit to make a weak rejoinder to Slipper’s accusation that this conduct amounted in itself to a flagrant abuse of process:
I did not believe as at 10 April 2012 that any concerns Mr Ashby had as to his safety in connexion with the commencement of this proceeding, was a proposition which was manifestly nonsensical.
Harmer studiously avoided mentioning that the extent of Ashby’s concerns in that regard was precisely zero until Harmer himself enlivened them.
Writing about this aspect of the case a couple of days ago, Independent Australia’s Vince O’Grady asked:
Why would employment lawyers like Harmer’s advise Ashby to have 24-hour security?
The answer is simple. It provided at least a shred of evidence to justify Harmer’s strategic failure to take the “genuine steps” required by the Civil Dispute Resolution Act. And Harmer might even have got away with it but for Ashby’s ill-advised SMS.
I certainly hope either Rares J or the Law Society makes a complaint about Harmer’s conduct to the Legal Services Commissioner. This sort of “over-the-top lawyering” (as Richard Ackland calls it) brings the entire legal profession into disrepute, casts unjustified doubts on the veracity of the many genuine victims of workplace sexual harassment, and even undermines the rule of law itself. It possibly isn’t quite as disgracefully unethical as the epic overcharging of disadvantaged personal injury clients by Keddies partners, but it’s certainly bad enough to warrant drastic disciplinary action in my view.
- filed by Harmer[↩]
Justice Rares has not referred the case to the LSC; it would have been noted in the judgment if he had done so.
However, the LSC has the ability to launch own-motion investigations when a judgment makes adverse findings against a lawyer and if the mooted appeal fails you’d expect that would happen.
Note that with his ticket at risk, Harmer needs to appeal even if his client doesn’t want to. I have no idea of how this would work in practice if Ashby pulled out.
It seems to me (and some other lawyers) that there is now a clear ethical conflict of interest in Harmer continuing to act for Ashby. As you say, Harmer’s own interests are vitally bound up with prosecuting a successful appeal to help preserve his practising certificate. That interest clearly differs radically from Ashby’s interest. Ashby has a costs order against him, but Slipper was unrepresented from the time the Commonwealth settled with Ashby. Thus Slipper’s costs might not be huge, they might even be covered by the $50K Ashby got from the Commonwealth. Thus there is a plausible argument that the appeal game is not worth the candle for Ashby, especially given that the harassment of which he complains is trivial and worth a few $K damages at most even if his appeal were to succeed and he then succeeded in proving harassment (which I doubt he would). OTOH a successful appeal by Ashby may well be the only way Harmer can save his own professional bacon.
This was very very interesting and informative. Thank you. I have no law training but just like logic and I felt there were enormous holes in the evidence and big questions raised. The whole thing read like some sort of novel.
Thanks for the post Ken. Very informative for someone not keeping up with all the sleaze.
On what possible grounds could an appeal succeed. Doesn’t seem possible. The only reason an appeal would be launched would be to maintain some sort of media coverage against Slipper and by extension the government in the hope of more political damage. Or as you say for Harmer to save himself. Can Harmer save himself? Can you spell out what damage Harmer has done himself professionally and how he can save himself? PS. From the start this was obviously a stitch up except apparently to our compliant media. Related. They and the LNP disgust me so much I find it hard to elaborate.
You’d have to ask why there cannot be a civil analogue to malicious prosecution. Where, as with this case, the court has found abuse of process, shouldn’t the defendant be able to vindicate their rights in some way?
That is a REALLY interesting point Alan. I think Slipper could potentially sue Ashby, Harmer and Brough in:
(a) the tort of malicious prosecution (which can include wrongful civil action); or
(b) the tort of abuse of process; or
(c) the tort of intimidation.
All this is a blast from the past for me. One of my first cases as a lawyer was the famous Mudginberri case in 1983 (the direct precursor of Peter Costello’s Dollar Sweets case), where on behalf of the employer we sued the Meatworkers Union not only under sections 45D of the TPA (secondary boycott) but also for the old common law industrial torts of conspiracy, intimidation and interference with contractual relations. We won (although the abattoir eventually went broke anyway). Only conspiracy would appear to be relevant to Peter Slipper’s situation. However, given Rares J’s findings, IMO each of (a), (b) and (c) above would be well and truly worth a run. Ashby and Doane clearly aren’t worth suing, but Harmer and Brough certainly would be!!
If Ashby isn’t the sharpest tool in the box, he might think an appeal will vindicate him. No doubt since the judgement he has been frantically texting empathic colleagues (preferably Aquarian ) who will proffer reasonable advice regarding his future in court. A future which may have limited prospects.
Hopefully they discourage him from appealing. The rule of law should be upheld. It is not equitable that a lawyer should be able to hide behind legal processes to further his own ends.
some of this really extends my legal knowledge; I just completed yr. 12 legal studies… but from what I gather, does it not seem as if the court should have taken a more thorough avenue to determine whether Harmer & Ashby actually did have genuine steps to bypass the civil pre-trial procedures? It seems as though Harmer has easily – by use of deceit – wriggled his way through a not-so-stringent loophole. Perhaps an element of investigation should have taken place to make a decision on whether the case was in fact ‘urgent’, and whether in fact ‘victimisation’ was present.
In any case, I hope the MSM do not run with this story. Yes, it is legitimate. Yes, the LNP may well have committed significant wrongs. But this is not what is needed, and it is certainly not what the people want. It is another case – similar to AWU ‘scandal’ – whereby details are minute and the public discourse fails to keep track of who has done what and when.
Very informative. Thanks, Ken.
I would argue that no particular magic privilege needs to exist. You would hope that most people tell the truth in court (and if they don’t then there are other mechanisms to deal with that), so straight away you have “Defence of justification” and also “Defences of fair report of proceedings of public concern”.
Isn’t that just a more complicated way of getting around to the same situation as you would have without special privilege? Again, you would hope that most people tell the truth in court. Being able to force someone to substantiate their claims doesn’t sound too unreasonable, that being the general idea of even having a court in the first place.
The unions have a strong vested interest in keeping this government as long as possible, and they have form on violence and intimidation. Bob Kernohan got bashed, Ralph Blewitt got death threats in the form of bullets being sent to him, Kathy Jackson got death threats in the form of a shovel dumped on her doorstep.
Security would be just a normal precaution and nothing more than that, you are trying hard to read something into it.
great post, Ken. Like many other commentators, I am ignorant of the law but you make a strong case that Harmer has overstepped the boundaries of what is decent.
Ken, the case was conducted in the federal courts, so why are you relying on the NSW Defamation Act? Surely the Federal Court rules of procedure and legislation (e.g. CDRA) are more relevant to the conduct of litigation in that jurisdiction than NSW state legislation and NSW ‘ethical’ requirements? The court did not spend that much time on defamation, or even with the NSW ethic rules, and let’s face it, the judge was quite blunt with his assessment of the conduct of the case.
Have a good Xmas and good luck with the new law firm.
General tort law (including defamation) is a matter of state legislative power not Commonwealth. The same is true of the regulation of the legal profession. Rares J’s references to the absolute privilege of court documents is to the privilege under state defamation law, and his references to Harmer’s ethical breaches are to the relevant NSW Solicitors (ethical) Rules. Harmer quotes them expressly in his affidavit (which I linked) and deposed to being aware of their requirements. Merely because a substantive cause of action is a matter of federal law does not make state law irrelevant.
Thanks for the clarification.
Great post Ken,
Do you think the NT would benefit from a legal services commissioner? I think some lawyers in the NT get away with conduct that other states wouldn’t stand for. I don’t think the law society does a satisfactory job of regulating the profession.
The Legal profession is a law unto itself.
I was a client hunted for unsubstantiated fees months after we had lost. I was taken to court, where in preparation Misconduct, misleading and deceptive behavior etc all exposed.
The Legal representative in my defence became scared, spooked and wanted nothing more to do with my case.
Dubious offers made and rescinded afterward.
Applied to Legal Commissioner requesting fair closure only to have outright, provable lies from the Lawyers satisfy the OLSC I had no avenue to pursue. With their opening line stating, HWL can and probably will continue their pursuit of me in the future.
Deceptive and misleading conduct, consequential loss. Negligent in the handling of my initial case. All terms I learnt in the preparation of my defence.
As a result; professional intimidation and subtle scare tactics including “they know where you live.” I have lost everything.
The long arm of the law has certainly protected itself in my case. Whilst I am left with no avenue to pursue any type of justice for the average citizen. With the threat of further relentless hunting in the future. All despite having made generous offers of settlement; Prior to learning of costs disclosure and having paid accordingly.