More #Ashby #mediafail: Joan Evatt on the appeal

Chief Justice of the Supreme Court, the Honourable Justice James Spigelman, second right,Source: The Daily Telegraph

By Joan Evatt
@NoFibs legal writer

May 13, 2013

The last time I entered a courtroom, nearly 28 years ago, I was so heavily pregnant I waddled rather than walked. I was a character witness for a work colleague discovered driving without a licence.  On that occasion I exchanged heated words with the Prosecutor, a pompous prat with a Jimmy Edwards handlebar moustache, much to the amusement of the judge and a bunch of law undergraduates. With my last name it is always difficult to have anything to do with the law, as assumptions will be made. So it was with a certain concern mixed with caution when I decided to follow the Ashby v Slipper appeal.

I have long been frustrated by the quality of the dailies’ coverage of legal matters. My frustration was underscored by the media’s serious misunderstanding of issues and decisions at the directions hearing before Emmett J.  I decided to do that ‘mother’ thing.  You know: ‘If you can’t get somebody to do it right, go do it yourself and stop complaining.’

Throughout the recent hearing dates in the Ashby v Slipper appeal certain key matters constantly gnawed at my gizzards. I wanted to vent because I believe them to be of critical importance.

One was the mainstream media’s coverage of this case, which, if it is indicative of how they cover most cases, means we’re in trouble. (See here and here)

The media’s incompetence raised two critical issues, which are fundamental to law and the practice of law in this country, and more importantly, the effectiveness of the administration of justice.

Unbeknownst to me, I wasn’t the only one doing handstands on Wednesday trying to get my hands on the written submissions of the three parties; Harmer, Ashby and Slipper. The written submissions outline the key areas that each of the three lawyers would talk to during the two days of hearing.  To not be able to read written submission at the very least means you are walking cold into a case and will find it impossibly difficult to follow.

On Thursday – day one of the hearing – I discovered David Marr who was without written submissions as well. He toddled downstairs to the Registry while I went to work on the legal representatives to see if I could acquire the submissions for perusal. To give all parties their due they had no problem with sending and giving us their submissions. For that I’m very grateful to Michael Lee SC (Ashby’s barrister), Anthony McClellan, from AMC MEDIA –  (the well known Public Relations firm working for both Mr Ashby and Mr Harmer) – and to Peter Slipper’s barrister Mr Ian Neil who gave us the submissions immediately.  It wasn’t until the next day that their Honours let it be known that written submission would be placed online for our access.

The judiciary and the legal fraternity cannot have it both ways when it comes to being critical of the quality of mainstream media coverage of the courts. Just as judges and lawyers have to do their homework before going into court to either hear or present a case, so does the media.  For journalists to cover a case cold does the parties and the system a disservice. Is it any wonder then that the reports written by journalists with difficult deadlines become more error-prone? A journalist’s role is a critical one to a justice system where open justice prevails.

There are three principles that form part of the justice foundation stone that underpins any functioning democratic society. The first is the independence of the judiciary from interference, and especially political interference, known under the banner headline as the separation of powers; a principle enshrined in our constitution.

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#Ashby appeal: Slipper’s turn

By Joan Evatt

May 3, 2013

It was Peter Slipper’s turn today in Day 2 of the Ashby v Slipper Appeal. Slipper was represented by well-known Sydney silk, Ian Neil SC. He had to wait for twenty minutes or so while Michael Lee SC endeavoured to add further to his submissions from yesterday.

The issues Lee wanted to expand on were questions about the urgency of Ashby’s application preventing Ashby and his representatives from pursuing all alternative remedies available to him on the sexual harassment issue.

Lee also raised the question of whether there was evidence given on what was in the mind of Michael Harmer on the question of ‘genuine steps.’

He got short shrift from Justice Siopis. As Mr Lee had a right of reply following Ian Neil’s submissions it may have been more circumspect to wait until then to raise these issues.

It is the role of Mr Neil SC to argue that the decision of Justice Rares is correct and should stand. He outlined in order nine subject headings raised in the written submissions of Ashby and Harmer he wanted to address.

“The best laid plans of mice and men …” on paper this would have looked neat and logical. In reality their Honours were feisty and challenging. For most of the remainder of the morning Neil’s oral submissions were punctuated with rugged questioning as we bounced from issue to issue making it increasingly difficult for those few from the media and the general public present to follow with any confidence.

At no stage did Mr Neil show any impatience with or discomfiture by this morning’s proceedings. It is worth noting that he didn’t wilt under the pressure either, but continued to argue the merits of his case.

Neil started his oral submission considering the questions of procedural fairness as raised in the Ashby submission. In his decision Rares J is satisfied Slipper established that Mr Ashby had combined with one or more of the persons named as part of the conspiracy that would result in his finding ‘an abuse of the process’.

Justice Gilmour asked whether it only related to Mr Harmer. Mr Neil’s answer took the court down a grammatical path. A definitive “No Your Honour” was his response. The relevant paragraph in Rares’s decision ‘has to relate conjunctively/disjunctively with each, some or all of the persons named… It’s inelegant English but it’s not bad syntax and its meaning is clear.’ His Honour didn’t continue asking questions about sentence structure.

The grammar lesson set the tone of the rest of the morning’s hearings.

#Ashby appeal, Day 1

James Ashby, flanked by his parents and his lawyer Michael Harmer at the NSW Supreme court for their appeal application. Photo: Kate Geraghty, Fairfax

By Joan Evatt

May 3, 2013

With the exception of Michael Harmer all the key players were there for the media to take quick photos and 15-second video grabs. Peter Slipper and James Ashby are starting to look a little frayed around the edges as they prepare to endure yet another round in this legal saga.

Yesterday was the first day of a two-day hearing by the Full Court of the Federal Court. Justices Mansfield, Siopis and Gilmour are concurrently hearing both the application for leave to appeal along with the more substantive issues of the appeal itself.

Justice Mansfield tipped the wink to the parties’ representatives as to how much time the court thought should be allocated to each of the lawyers. For Michael Lee SC, Mr Ashby’s counsel and the first legal cab off the rank, this was always going to be difficult. His job is to plough the field for the first time with no real indication of the legal hoops he may have to jump through when they are presented to him by any one of the justices presiding.

Lee’s argument is that Rares J. made three fundamental errors resulting in Ashby not being able to present his case in full and therefore ‘be determined on its merits.’ He put forward the view that Ashby had not received procedural fairness.

Lee argued that the finding of an abuse of process by Rares J was
flawed as the seriousness of that finding required an onus that was a ‘heavy one’. Rares J needed to be ‘cautious’ in his consideration of this issue and, according to Mr Lee, Justice Rares wasn’t.

Mr Lee further argued that Justice Rares adopted an ‘impressionistic view’ about Mr Ashby’s involvement in a conspiracy to harm Mr Slipper with inferences being drawn that compromised the fact finding process.

The third error in the Rares decision, according to Mr Lee, involved the conduct of Mr Ashby’s solicitor, Mr Harmer. This was dealt with comparatively briefly as Mr Harmer, now a party to the appeal, is being separately represented by counsel, David Pritchard SC.

Lee SC also raised concerns about Justice Rares’s rejection of unchallenged evidence. Mr Slipper was representing himself at the time Michael Harmer gave evidence and didn’t subject Harmer’s evidence to any cross-examination.

Joan Evatt’s preview of #Ashby appeal

By Joan Evatt

April 29, 2013

Editors note: Here is Joan’s preview of the appeals by Ashby and his lawyer Michael Harmer against the Justice Rares’ dismissal of Ashby’s sexual harassment claim against Slipper as an abuse of the judicial system. Joan will report the hearing for @NoFibs.  Her first report is here.

Just when you think it is safe to re-enter still waters, the waves start to churn again. It’s a cause to pause. The matter of an application before the Court of Appeal to grant leave, and to consider reasons why Justice Rare’s decision in Ashby v Slipper should be overturned, will be heard this week.

The next saga resulting from Justice Rares’s decision in Ashby v Slipper was always going to be of interest. Public scrutiny of the appeal is further heightened because of one unusual aspect of the appeal. One of the appellants is Mr Ashby’s high-profile solicitor, Michael Harmer, of Harmer’s Workplace Lawyers.

For Mr Slipper, although the appeal is a continuing financial and emotional burden, this time should prove a slightly more refreshing exercise. Slipper is no longer on the back foot. Rather it is Mr Ashby and Mr Harmer who are both now fighting for their future professional careers and public standing.

Both applications contain identical grounds founded in Mr Ashby’s and Mr Harmer’s belief that Rares J erred in finding that the “predominant purpose” of Mr Ashby

“ … for bringing the proceedings was to pursue a political attack against the Respondent (Mr Slipper) and not to vindicate any legal claim he (that is Mr Ashby) may have… and accordingly that the proceedings were an abuse of process.”

Ashby v Slipper Appeal: the first round

By Joan Evatt
Source: Boeufblogginon
February 8th 2013

Michael Harmer

There were surprisingly few members of the general public present at today’s directions hearing before Emmett J in the matter of the Ashby v Slipper applications for leave to appeal to the Full Bench of the Federal Court. Is this issue dead in the water with the masses and is now only of interest to the mainstream media? I’ll let others decide.

The applications for leave to appeal were not heard today but will be heard before the Full Bench of the Federal Court during their May sittings. At the conclusion of the matter before Emmett J representatives of all parties toddled off to hammer out suitable dates in May.

It was made clear by Emmett J that if leave to appeal is granted by the Full Bench then they would likely go on to hear the appeal at that time during their May sittings.

One thing that did amuse me was the issue of the length of written submissions arguing a case for the leave to appeal to be either granted or rejected. Apparently written submissions are limited to 10 pages but parties for Harmer asked for them to be increased to 30 pages. Emmett J granted this request subject to the presiding judge of the Full Bench countering the request and enforcing the 10 page rule. (For some reason this tickled my fancy and I had a quiet snigger).

The other matter for business was the issue of costs being awarded to Slipper as a result of Rare’s decision now, of course, the subject of two applications for leave to appeal.

Emmett J slated the hearing on costs to 30th May. The logic seems to be if leave isn’t granted then the hearing on costs can go ahead, but it will be totally dependent on the outcome of the leave to appeal.

So bing bang wallah wallah bing bang – all over in a very short time.

The other highly amusing thing for me was my engagement with members of the mainstream media in the lift going down while they chatted between themselves trying to sort out what had just happened in court.

It was my “OH For Fuck’s Sake” moment as I then, without the benefit of any notes, gave them a six point summary as to what had happened – all done and dusted before we hit the ground floor. Once outside the court precincts I was asked to repeat what I had said in the lift, which I did while notes were taken, much to the amusement of the delightful Ross Jones, my comrade for the morning and occasional contributor to Independent Australia, the on-line magazine.

To my very best new friends in the MSM: Today wasn’t exactly rocket science, and it helps to prepare and listen to what is being said in court instead of chatting, even if it is about the case. I don’t even want to think about what is not being taught in journalism degrees.

The focus of the Ashby-Slipper story will change as this appeal proceeds. It isn’t about Ashby anymore or, for that matter, Slipper. Well, maybe a bit. But they are now playing second fiddle to Michael Harmer. Make no mistake Harmer is now driving this engine. That is the story in my view. Appeals will be lodged all the way if necessary because at stake is Harmer’s professional reputation and career. If I was occupying Harmer’s shoes I would be doing the same.