A legal eye on the Ashby ruling

The reasons for the decision published by Justice Rares of the Federal Court of Australia on December 12, 2012, in Ashby v Commonwealth of Australia & Slipper, have led to headlines such as “Slipper Vindicated” and “Slipper Cleared”. The first headline is misleading and the second is inaccurate. The confusion arises from a misunderstanding of the legal concept of “abuse of process”.

The concept of “abuse of process” is not, at least as a general proposition, a recent invention by activist judges who mistake themselves for legislators. It has a long history in legal systems which follow the English common law tradition. For example, in Morice v The Bank of England (1732), in the old High Court of Chancery, Chancellor King said that it was “an Abuse of the Process of this Court to keep a Writ in a Person’s Pocket so long and make no Use of it, and afterwards serve it on the Party.”

Further, the rules of procedure which govern the conduct of proceedings in Australian courts often contain an express provision permitting a Judge to stay an action on the grounds of abuse of process. For example, the rules of the WA Supreme Court provide that the Court may strike out any pleading on the ground that “it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed”.

The High Court of Australia has held, in a decision referred to by Rares J, that the categories of abuse of process are not closed. There are a number of recognised categories: bringing two separate actions in the same court, or different courts, in respect of essentially the same subject matter; raising in a new action an issue of fact or law that has already been decided in a previous action; refusing to submit to a medical examination in an action to recover damages for personal injury; destroying documents that would have been produced on discovery; delay between the events that are the subject of the litigation and the commencement of proceedings.

The particular category of abuse of process which was the subject of Rares J’s decision may be referred to as “improper purpose”. Although the categories of abuse of process referred to above may appear relatively uncontroversial, “improper purpose abuse” raises some interesting questions.

The leading Australian decision on that form of abuse is the High Court’s 1992 decision in Williams v Spautz. By a 4-3 majority the court held that even if the plaintiff has a prima facie case, the action will be permanently stayed if the plaintiff’s predominant, but not sole, purpose in commencing the action is to achieve an “improper purpose” – ie when “the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or collateral advantage beyond what the law offers”. If James Ashby was found to have such a purpose, then Rares J was bound by Williams v Spautz to put an end to Ashby’s action against the Commonwealth and Slipper.

On the facts of the case as found by Rares J, it seems fairly clear that at least one of the purposes which Ashby had in bringing the action was to cause Slipper political damage (to the advantage of Mal Brough) upon the media reporting of the allegations made in the Federal Court documents filed on behalf of Ashby. Documents filed in court registries are subject to “absolute privilege” from defamation proceedings in the same way that statements made in Parliament are privileged – even if that privilege is abused.

It is important to note that the first court document filed on behalf of Ashby (essentially a writ) made three categories of (very serious) allegation – only one of which was sexual harassment. When it came time for those allegations to be expanded upon in a document called a “statement of claim”, only the sexual harassment claim was pleaded and the other allegations were abandoned. Rares J held that the making and then the abandonment of the other two allegations was an abuse of process.

But for present purposes, let it be assumed that Ashby’s court documents had only ever alleged sexual harassment. On that assumption, should Ashby have been denied his day in court because of the political motive referred to above?

The starting point must surely be, as the former Governor General, Sir William Deane, said in a 1987 High Court decision, that the conferral of jurisdiction on a court imports a prima facie right in the person invoking that jurisdiction to have it exercised. On the other hand, the High Court has also held that such a “right” is not at large and is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, … [including] the principles respecting abuse of process”.

Rares J opined that sexual harassment of an employee such as Ashby is a violation of the person’s human dignity and that the courts must be available to hear bona fide actions to vindicate that dignity. Rares J also opined that he did not find it “necessary to make any findings about … whether Mr Slipper did sexually harass Mr Ashby in any of the ways alleged.”

Nonetheless, Rares J did make a number of findings of fact that were seemingly relevant to the sexual harassment claim. Those findings were largely based on the mobile phone “text trail” between Ashby and Slipper.

One finding of fact was that Ashby was a very disloyal employee who, contrary to his duties as an employee: worked behind Slipper’s back to undermine him; lied to Slipper about his health in order to explain his absences from work; and may have been privy to passing on to Brough extracts from Slipper’s diary. Another finding of fact was that Ashby considered himself well able to, and did, confidently deflect Slipper’s sexual advances towards him.

But should a complainant’s strength of character in the face of frequent highly provocative sexual overtures made to an employee commencing within the employee’s first working week, deprive the complainant of her or his day in court in an action for sexual harassment – even if the complaint also has an “improper motive” in the sense described above?

Further, why should an employee (with or without such strength of character) be denied a hearing of the substantive sexual harassment allegations, even if she or he, although otherwise minded not to go through the time, stress and expense of litigation, decides to do so in order to achieve inevitable “flow on” political consequences?

Sir Gerard Brennan was in the minority in Williams v Spautz, and was of the view that an “improper predominant subjective purpose” does not transform well-founded proceedings into an abuse of process. If that view of the law had carried the day then, had Ashby’s court documents always been confined to sexual harassment allegations, then Ashby would have had his day in court.

It is perhaps unfortunate that Rares did not grant a permanent stay of Ashby’s proceeding rather than dismiss them. Although the distinction is technical, and from a practical point of view both forms of order may be said to have the same effect, a “permanent stay order” at least reflects the procedural reality – ie. that there has been no hearing of the substantive allegations, and hence neither Ashby nor Slipper may be said to have “won” the sexual harassment case.

Slipper has been “vindicated” only in the sense that he asserted that Ashby’s Federal Court action was the product of a conspiracy to politically harm Slipper. Slipper has not, however, been “cleared” of sexual harassment. This is so despite the form of order “dismissing” the proceeding for sexual harassment.

There were no winners in the case of Ashby v Commonwealth of Australia & Slipper. But there were losers – Australian voters and taxpayers have had to witness their politicians and taxpayer funded parliamentary “staffers” engage in Machiavellian antics which have nothing to do with the “peace, order, and good government of the Commonwealth” mentioned in section 51 of the Constitution.

Peter Hannan is a Perth barrister based at John Toohey Chambers