James Ashby and Harmers fail in lunge for Commonwealth to pay costs of proceedings against former Speaker, Peter Slipper … The latest, and maybe final, chapter in one of the nation’s grubbiest political escapades 

WAS February’s Full Federal Court judgment knocking back James Ashby’s desperate plea for the Commonwealth to pay his costs the end of his squalid affair with Peter Slipper?  

The Full Feds had little trouble rejecting the Michael Harmer inspired lunge for the money. Harmer’s law shop is down the tube in the Ashby case to a tune estimated variously to be between $1.5 million and $3 million. It was a shocking punt on a dreadful political stitch-up. 

Harmers wanted the Commonwealth to pay Ashby’s costs of Slipper’s application for summary dismissal of the case against him and the subsequent appeal. 

On February 27, 2014 a Full Fed majority found that the action against the former Speaker was not an abuse of process. Contrary to the suggestions from Ashby’s spin machine there were no findings of fact about the sexual harassment claims.  

In September 2012 Ashby settled his case against the Commonwealth for $50,000, with the parties agreeing not to seek costs. 

Ashby subsequently discontinued his action against Slipper just weeks before the case due to be heard.  

Since Harmer had sunk a small fortune into the litigation, the immediate concern for him was to try and recoup some of his investment. 

This most recent action was an unsuccessful attempt to get the court to vacate an earlier costs order that had been vacated by an earlier order. 

In recent appearances Slipper’s legal team has been led by Ian Neil SC, acting pro-bono. 

Initially the Full Feds had ordered Slipper to pay the costs of his summary dismissal application and the appeal.

Slipper later applied under the Federal Court Rules to vary the order on the basis that the court had not considered s.570 of the Fair Work Act. On June 10, 2014 the Fulls vacated its own costs order. 

On June 18, 2014, Ashby applied under the FC Rules to have the June 10 orders vacated. That was amended on August 1, 2014 to an application for both Slipper and the Commonwealth to pay his costs of the dismissal application and the appeal. 

That’s what John Mansfield, Antony Siopis and John Gilmour JJ addressed in this most recent chapter of the Ashby v Slipper campaign. 

They found that there was no direct involvement by the Commonwealth in the conduct of the claim or of the abuse of process application by Slipper after it settled with Ashby on October 4, 2012. 

“We consider that the terms of settlement are clear. It reflects an offer by the Commonwealth to settle Ashby’s claims against it in the primary proceeding accepted unconditionally by Ashby, including that he would make no application for costs against the Commonwealth. That was acknowledged by Ashby’s counsel on October 2, 2012. 

On its face, the proposed application is clearly in violation of that agreement. The agreement was reached in relation to the primary proceeding, but was clearly intended to cover any circumstance (such as an appeal) arising directly from the ongoing conduct of the primary proceeding by Ashby against Slipper, including of course Slipper’s then outstanding summary dismissal application … 

Both Ashby and the Commonwealth clearly intended that there would be no further issue as to costs between them, in particular by Ashby seeking costs against the Commonwealth.” 

Short of a successful special leave application that’s the end of it – except one wrinkle remains. Before Steven Rares in the summary dismissal application, Slipper alleged that Ashby had acted improperly by obtaining his diaries and publishing them. 

Subsequently, Slipper amended his pleadings to delete the allegations about his purloined diaries – a grubby exercise in which Mal (Odorous) Brough, the Liberal candidate seeking Slipper’s Queensland seat, played a part. 

Rares awarded indemnity costs to apply to this withdrawn element of Slipper’s case. That order was later vacated by Geoffrey Flick J, but the entitlement to seek that order has been preserved.  

Ashby has no means of meeting the massive bill and Slipper even less so, and now the Commonwealth is off the hook. 

Harmers is also deeper into the costs mire because the Fulls awarded indemnity costs for the Commonwealth in this final round. 

“In our view, therefore, the normal rules as to costs should apply. The Commonwealth is entitled to its costs of opposing the application to amend the interlocutory application of Ashby of 18 June 2014. Having regard to our reasons for refusing leave to amend that application, it is our view that the Commonwealth’s request that it should recover costs on an indemnity basis should also be acceded to.

As indicated, we refuse Ashby leave to amend his interlocutory application of 18 June 2014 in the terms of his proposed amended interlocutory application dated 1 August 2014. We also order that Ashby pay to the Commonwealth its costs of resisting that application, on an indemnity basis but limited to such costs as were reasonably incurred in doing so.” 

Ouch. 

Slipper was also successful last week (Thursday, Feb 26) in his appeal against his conviction and sentence for dishonesty, relating to the misuse of his Cabcharge allowance.  

ACT Supremes justice John Burns said that magistrate Lorraine Walker did not take into account a number of possible explanations for Slipper’s trips to wineries in the Canberra region. Witness were not called to give evidence about the reasons for these bibulous excursions. 

The judge also suggested that the definition of “parliamentary business” might have been applied too narrowly. 

Unlike prime minister Abbott and attorney general Brandis, Slipper was not permitted to refund money used for what allegedly were rorted expenses. 

Last September James Ashby appeared on Channel Nine’s 60 Minutes and said then shadow minister Christopher (Poodles) Pyne promised him legal assistance and a ongoing job in the event his allegations against Slipper were brought to court. 

The sexual harassment attack on the Speaker was part of the Coalition’s campaign of destabilisation on Julia Gillard’s minority government, assisted by News Corp. 

If Pyne knew about it and endorsed the strategy, it defies reason for Abbott to claim he knew nothing. 

In a piece of awe-inspiring synchronicity, Abbott’s press release calling for Slipper’s resignations was on the stocks the moment the Telegraph went to press with the story about the sexual harassment allegations against the Speaker. Some metadata experts suggest it was even prepared before the story hit the streets. 

As Ashby agreed, in his carefully choreographed interview with Liz Hayes, this information was “dynamite in Pyne’s hands”. 

The revelations on 60 Minutes that senior people in the Liberal Party were actively engaged with the plans to sue Slipper, reinforce the correctness of Rares’ original finding that the case was an abuse of proceess. 

Given Slipper’s reputation as a sleazy character it is amazing that Ashby, who paints himself as a lily-white victim, would want to work for him. Closer to the truth, and this is suggested in Ashby’s emails, is that the young staffer was a “honey-pot”, snaring the sexually ambivalent Speaker into politically disastrous escapades. 

Now, Slipper is a broken man. His career is finished, his marriage over and his mental and physical health impaired. 

That is just part of the price of a thuggish campaign conceived and embellished in the bowels of the Liberal Party and with active encouragement from its highest reaches.