Judge Mr Brough

For the recod, this is what the Rares J said of the role of Mal Brough.

Let's just look at excerpts from the conclusion first

197 For the reasons above, I am satisfied that these proceedings are an abuse of the process of the Court. The originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper......

199 Even though I have not found that the combination was as wide as Mr Slipper alleged in his points of claim, the evidence established that there was a combination involving Mr Ashby, Ms Doane and Mr Brough of that kind. Mr Ashby acted in combination with Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough. Mr Ashby and Ms Doane set out to use the proceedings as part of their means to enhance or promote their prospects of advancement or preferment by the LNP, including by using Mr Brough to assist them in doing so. And the evidence also established that the proceedings were an abuse of the process of the Court for the reasons I have given. Accordingly, I am satisfied that the exceptional situation that enlivens the Court’s power to dismiss (or stay) proceedings as an abuse has been proved to the heavy standard required: Williams 174 CLR at 529. The duty and power of the Court to protect its own processes require that I give effect to the findings I have made by dismissing the proceedings under r 26.01. **********

Ms Doane’s and Mr Brough’s roles

131 Mr Ashby and Ms Doane had decided to work together on a “journey” from no later than their exchanges of texts on 28 March 2012: [56]. Mr Ashby had told Mr McArdle two days before that he had decided to press ahead with what the two had discussed on 2 February 2012: [55]. Mr Ashby’s text messages with his friends Martin, Mr Nagle and Ms Hubbard in early February 2012 revealed that what he was proposing as his course of action at that stage would “empower someone else definitely”. He asked Ms Hubbard whether by acting to empower that person he would be rewarded or condemned. He told Martin that what he was contemplating involved “national decisions”: [34]. The messages suggest that Mr Ashby was proposing using the record of his text messages with Mr Slipper for a political attack that would be the impetus for national decisions.

132 Mr Ashby and Ms Doane had decided by 29 March 2012 that Mr Ashby would make allegations of sexual harassment in legal proceedings against Mr Slipper and would assist Mr Brough and Mr Lewis to damage Mr Slipper in the public eye and political arena with any information they could find including using the requested diary entries together with any proceedings. Mr Ashby referred to seeing or using lawyers in his texts from about this time. Accordingly, I have inferred that he, Ms Doane and Mr Brough intended that Mr Ashby would bring proceedings against Mr Slipper alleging at least sexual harassment. Over the six previous months Mr Ashby had described Mr Brough to Mr Slipper in the most foul terms. He had also been considerably unflattering about Mr Lewis when discussing him with Mr Slipper. Yet, by 29 March 2012, Mr Ashby had confided in Mr Slipper’s political foe, Mr Brough, about being sexually harassed by Mr Slipper and sought Mr Brough’s help in obtaining a lawyer. Moreover, within a day or so Mr Ashby and Ms Doane were providing Mr Brough and Mr Lewis with copies of Mr Slipper’s diaries.

133 Once they had decided on their course of action, Mr Ashby and Ms Doane did not go straight to see a lawyer to air any concerns about any legal wrongs that either may have suffered. Instead, Mr Ashby or Ms Doane contacted Mr Brough and they began working with him and Mr Lewis. That was an act of disloyalty that they both knew was antithetic to their continuing to work for Mr Slipper. But they did continue. They asked Mr Brough to help them find a lawyer. They used their positions on his staff surreptitiously to copy and provide extracts from Mr Slipper’s diaries for periods in 2009 and 2010 at the requests of both Mr Brough and Mr Lewis. There is no evidence that Mr Ashby ever provided any of Mr Slipper’s diary entries concerning the 2012 Cabcharge allegations to anyone. Mr Ashby met Mr Lewis on 4 April 2012 and Mr Ashby so enthused Mr Lewis that the latter wrote “We will get him!!” just before flying to Sydney.

134 Objectively, the conduct of Mr Ashby in relation to Ms Doane, Mr Brough and Mr Lewis prior to the meeting with Mr Russell QC is consistent with Mr Ashby working towards a politically damaging attack on Mr Slipper. That conclusion is reinforced by the absence of any indication in the text messages recorded on Mr Ashby’s phone that indicate that he had expressed any concern, let alone distress, about any sexually harassing behaviour by Mr Slipper.

135 Mr Ashby asserted to Mr Harmer that his justification for his disloyalty as an employee in providing copies of Mr Slipper’s 2009 and 2010 diaries was that he wished to place the material in the public domain. That was, his assertion went, because he “believed that the conduct was morally and legally wrong and he felt aggrieved that he had been placed in the situation of becoming, as he understood it, exposed to (and potentially implicated in) what he regarded as the wrongful conduct of a public official”: [116] above. The words I have emphasised were ambiguous. If they referred to Mr Slipper’s conduct on the days covered by the 2009 and 2010 diary entries he surreptitiously sent to Mr Brough and Mr Lewis, there is no evidence to support Mr Ashby’s description or that he had any knowledge of particular conduct of Mr Slipper that was morally or legally wrong prior to him or Ms Doane sending the diary extracts to Mr Brough and Mr Lewis.

136 Notably, Mr Lewis had emailed Mr Brough on 29 March 2012 saying that he (Mr Lewis) “would be fascinated to see what his diary said for these dates, they involve some large outlays, and the destinations were … er .… unusual!!”: [58]. The fascination expressed by Mr Lewis did not warrant Mr Ashby acting at that time on the basis that the diary entries he and Ms Doane surreptitiously copied and sent showed any legal or moral wrongdoing by Mr Slipper. Rather, Mr Ashby’s and Ms Doane’s conduct at that point indicated that he and she were anxious to supply information to Mr Brough and Mr Lewis so that they could use it to assemble an attack on Mr Slipper, if they could find sufficient material to do so, using the diary entries and other evidence. Mr Lewis was raising questions – not answers. The diary entries by themselves, or even with Mr Lewis’ questions, did not reveal any legal or moral wrongdoing by Mr Slipper in relation to the occasions covered by the diary entries, even if they revealed a line of inquiry.

137 If the reference to “the conduct”, in Mr Ashby’s self-serving assertion to Mr Harmer, related to the subject matter of the Cabcharge allegations, Mr Ashby never asked Mr Slipper about the arrangements he had with the Sydney driver. Mr Ashby was ready, willing and able to assert himself and to protect his own position when he perceived Mr Slipper to compromise that, as the texts of 1 and 26 February 2012 demonstrated. I do not accept that Mr Ashby ever believed that Mr Slipper had acted in a legally or morally wrong way so as to compromise Mr Ashby in relation to his use of Cabcharge vouchers.

138 I am also satisfied that Mr Ashby and Ms Doane by about 29 March 2012 were in a combination with Mr Brough to cause Mr Slipper as much political and public damage as they could inflict on him. They believed and hoped that Mr Lewis would publish unfavourable stories about Mr Slipper concerning whatever they could help Mr Lewis find in relation to Mr Slipper’s use of his travel entitlements in the areas of Mr Lewis’ curiosity. That is why each of Mr Ashby, Ms Doane and Mr Brough were anxious to provide Mr Lewis with the diary entries he sought. It is not clear whether Mr Brough had passed on to Mr Lewis Mr Ashby’s foreshadowed complaint of sexual harassment in late March 2012. They also believed that Mr Lewis, and the media generally, would report on any legal proceeding against Mr Slipper in which Mr Ashby alleged sexual harassment. At this time, Mr Ashby and Ms Doane saw Mr Brough as their means of obtaining favour from the LNP in seeking new employment. It was obvious that once what Mr Ashby was then planning became public, he and Ms Doane could no longer work as members of Mr Slipper’s personal staff. The relationship of trust and confidence (if it still subsisted) between Mr Slipper and the two staff members would have been destroyed by their acts of calculated disloyalty.

139 The timing of Mr Ashby’s and Ms Doane’s actions immediately after 24 March 2012 is also significant. They believed that new job opportunities would open up to them after the LNP won government in Queensland on the weekend of 24-25 March 2012. If Mr Ashby could discredit Mr Slipper politically by helping Mr Brough and using Mr Lewis, he perceived that would gain favour for him and Ms Doane in the eyes of the LNP. Mr Russell QC may have disabused Mr Ashby of that perception on 6 April 2012. However, both Mr Ashby and Ms Doane acted on that basis before 6 April 2012 and she, at least, continued to do so later.

140 I also infer that Mr Ashby and Ms Doane perceived that once the dust had settled after Mr Ashby’s proceedings against Mr Slipper, they would have, what they perceived to be, the “black mark” of having worked for Mr Slipper removed and that this would open the way for the LNP or persons with whom Mr Brough and his allies appeared to have had influence, such as Mr Palmer, to give them favourable consideration for employment once again. Thus, on 30 March 2012, Ms Doane had emailed Mr Ashby about a future with “focussed careers with people we can be proud to affiliate our names”: [59], [66]. After the meeting with Mr Russell QC, Ms Doane continued to press Mr Brough for help in pursuing her opportunities. Thus, on 10 April 2012 she emailed him with her resume for consideration by Mr Palmer.

141 Mr Brough was unlikely to have been offering to assist Ms Doane and Mr Ashby in seeing Mr Russell QC for advice or looking for new careers out of pure altruism. Realistically, his preparedness to act for them was created and fed by their willingness to act against Mr Slipper’s interests and assisting Mr Brough’s and the LNP’s interests in destabilising Mr Slipper’s position as Speaker and damaging him in the eyes of his electorate. Mr Ashby wrote that he totally agreed with Ms Doane’s observation in texts on 30 March 2012 that what they were doing, seeking to bring the sexual harassment case would “tip the govt to Mal’s and the LNP’s advantage”. They also thought that meeting with Mr Russell QC would also be “[d]efinitely a good move for us” by aiding them in removing “the black mark from being” with Mr Slipper: [66]. By this time Ms Doane’s animus against Mr Slipper was pronounced, as her text expressing loathing of 3 April 2012 showed: [67]. Novae Meridianae Demetae Dexter delenda est

Toxic Metrics

I had a delightful lunch today with an old and dear friend. He lives in the US and is hence is exposed even more to the culture of capitalism than we are in Oz. He introduced me to a new term, "toxic metric". A toxic metric put simply is a metric introduced as a way of measuring progress to something we really care about, but once introduced the metric becomes the target even as it starts to diverge from the actual goal. NAPLAN svhool progress testing is demonstrating this tendency in society. In business it is the call holding time statistic in call centres. Feel free to add to the list - and to promote the term.

Learning Science in song

What do you do when a colleague asks "What is the second law of thermodynamics"? In our office two people go straight to Flanders and Swan. This is quickly followed with the suggestion of Monty Python for astrophysics (or the universe at least) Then yet another of the classics with Tom Lehrer on chemistry (more specifically Chemistry) Which then led to a suggestion for zoology, about which I'm not so sure about Bad enough, but it is also a place where you don't want to use a greengrocer's apostrophe.

Even remnant parties have factions and discord

Twitter is - perhaps surprisingly to some - not a private communications channel. Courtesy of that fact we can see that there is apparently a lack of harmony among the members of the Australian Democrats. Part of the untold story of the Democrats is how, beginning with the GST deal, the party successfully managed to jettison large slabs of its membership through winner-take-all stoushes.

How about no absolution without genuine repentence

So the Catholic Church is worried that the secular state is going to at last look to break the "seal of confession" - at least for child abuse. How about a much simpler approach by the church. Absolution comes not just from confessing to God and asking his fogiveness, and saying some words, but from confessing to society and asking for fogiveness from your victims. That would be a real response.

Taking Agent Based Computational Economics to a new level

A greast little item in the SMH today about an economist applying theory to the question of the economies inside online games. A couple of interesting comments are included, For example, many would agree that; "Professor Varoufakis believes economics has ''hit the wall'' as a credible source of policy insight because its mathematical models are ''irrelevant'' or even ''dangerously wrong'', crippled by the lack of sufficiently accurate, complete and timely real life data." The kinds of events like asset bubbles and banking crises occur, despite theory, because of the interaction between agents tin the formation of prefernces that is ignored by traditioonal economics - and can't be reliably modeled. The interaction between agents is in pat transmitted by the fact that preferences are formed by expectation of future events - houses can be valued on the basis of their rental income (or the opportunity saving of not paying rent) or on the basis of their future value for esale. Bubbles grow as the latter becomes more important in valuation than the former. They pop when the gap between the two becomes so large that valuations start shifting back to the former. The article notes that; "Part of the aim is to avoid speculative bubbles and banking crises such as the one in Second Life that caused players to lose $750,000 in real money in 2007. He is also analysing the transactional data for its ''tremendous theoretical and empirical interest'' and writing a Valve blog." Question - do you think the makers of Stream could be encouraged to make a version of a game that could be played by economics students with the intention of testing the boundaries of collapse?

No comment

We all know the US plays rough to defend its industries, but is it playing rough when they attack a firm in an industry that they "invented and developed ... but is largely out of the business now"?

How to stop extremists

The Daily Terror has today calculated the increase in Australian overseas aid since 2008 and claimed the increase was all about getting a seat on the UN Security Council. It could of course simply be increased overseas aid. Meanwhile The Economist has reported on the case of Nigeria. This is yet another case where poverty and a dysfunctional state leads to extremists. So just maybe the Terror could have said the increased aid was part of trying to rid the world of extremism.

For the Tin Foil Hat Brigade

Great scholarly article on The Effectiveness of Aluminium Foil Helmets. A must read.

Inconsistency

When is trawling through the deepest recesses of the internet to resurface claims about events 17 years ago that have already been answered "holding to account"? How can Chris Pyne yesterday look at a camera with a straight face and suggest that any of that had anything to do with actions that have been in court? When is assault - throwing a punch to make someone be afraid - anything other than assault, and not just the "rough and tumble" of student politics? How can a person whose approach to politics was "robust" using intimidation and hateful language (mostly directed at gays) come out and attack people who use similar tactics for their own cause?

Quiggin on Posner

Folks, a good simple read from Joghn Quiggin on how Richard Posner, leader of the Law and Economics cheer squad for the Republicans has changed his mind. Quiggin writes, "Posner is one of a small minority on the intellectual right who have responded to the economic crisis by changing their view of the world, rather than by finding more and more absurd defenses of the indefensible." Reminiscent of the line attributed to Keynes "When the facts change, I change my mind. What do you do, sir?"

Abbott and language

This has been an amazing week. At least the SMH got it right in yesterday's editorial when they noted the absence of anything amounting to policy. Senator Conroy's media releases covered the NBN bit. The SMH however saw fit to say nice things about the Abbott commitment to teaching foreign languages. I won't here go into the fact that such teaching would be advanced by the NBN. The question is the need, the observation is the hypocrisy. Australia is actually a linguistically diverse nation due to its high levels of immigration. But the single most important language to speak is English. That's what the Europeans an Asians all most want to learn. Better resource use would be to boost English language training to others in the region. But the policy stands in stark contrast to opposition to multiculturalism. That opposition takes the form of objecting to the useof community languages and encourages migrants to integrate. So Abbott's view is that if you already speak a language other than English you shouldn't, but if you don't speak a language other than English you should learn one. And this man is taken seriously? Wake up Australia.

Reporting the "news"

If Chicken Little runs around and says "The sky is falling" it could be reported in three ways. The first way would be "The sky is falling". This would be inaccurate. The second would be "Today Chicken Little claimed that the sky is falling." This would be a completely accurate report but of little value. The third would be "Today Chicken Little lied. Little claimed that the sky is falling. Investigations reveal it is not." This would be a completely accurate and highly valuable report. We call the third one "journalism". I wonder which one of the three ways of reporting will be used to cover politics tonight. Experience is rapidly telling me that it is most often the second, sometimes the first. Very very seldom is it the third, even amongst those outlets who talk about the need to fund "investigative journalism."

The Liberals and Indigenous Australians

So that's twice in recent times the Labor PM has saved the Opposition Leader from the consequence of a gaffe over indigenous affairs.

The first was Kevin Rudd helping Brendon Nelson over the disaster that was his address in the Apology by going across the chamber to get Nelson to accompany the elders into the Parliament.

Then yesterday we had Julia Gillard ensuring her security detail escorted Tony Abbott as well as her out fro the Lobby restaurant.

It transpires today that the activities that the PM regretted for disrupting the ceremony were in part caused by one of her staff being in a communication chain that passed on Mr Abbott's planned location for the day to the protesters. It doesn't seem to be he wo informed them of Mr Abbott's view that the Tent Embassy had passed its useful time. It wasn't he or anyone else that inspired Mr Abbott to assert that really we'd taken care of aborigines now with the apology and possible constitutional recognition so they didn't need their Embassy.

The Liberals in Government are notable for the demolition of ATSIC (for goodish reasons) and the NT intervention. No matter how honestly motivated the latter was it was as poorly executed a piece of paternalism as was taking half-caste children from their parents.

Perhaps, rather than saying it is tme the Tent Embassy moved on, we should consider the value of a permanent "embassy" - a place of representation of the indigenous Australians - within the Parliamentary triangle. And perhaps National Australia Day/Invasion Day/Survival Day ceremonies could start with a smoking ceremony there like NSW ones do with a smoking ceremony at Farm Cove.

It would be more useful than the former ATSIC building stuck over by the Museum of Australia.

I note that Google Maps identifies an area between Old Parliament House and the lake as "Reconciliation Place" - but it just seems to be a circle. If that is indeed what it is - more needs to be made of it.


Novae Meridianae Demetae Dexter delenda est

Kodak

Anyone observing the latest chapter in the Kodak story would do well to read Clayton Christiansen's The Innovator's Dilemma.

Kodak, you see, invented digital photography but didn't invest for fear of cannibalising the film business. This the only technology choice where this occurred.

There ought to be a saying somewhere, if you don't cannibalise your own business you will just end up road kill.

That said, this is the US, and "bankruptcy" doesn't mean what we think it means.


Novae Meridianae Demetae Dexter delenda est

Not Blogging Really

Anyone in Australia thinking of the idea of primaries should take a bit of a look at what happens in the US.

This ad is run by Newt Ginrich to destroy the credibility of Mitt Romney.



But Ron Paul goes one better and just attacks Newt and Mitt.



But when you follow these links you find a really monumental pro-Ron Paul piece which argues that a non-interventionist Foreign Policy as proposed by Paul ticks the Libertarian boxes.



It is frightening that Julie Borowski - who describes herself as TokenLibertarianGirl on YouTube - can hold such views so young. But then again anyone in their early to mid twenties who wears pearls like those is a bit doubtful to begin with. I guess Tanya Costello (nee Coleman) was just like her at that age.

Anyhow, she has conveniently told us the libertarian books she recommends. Some of the more serious of these I have read - and they are as dangerous nonsense as Marx's Capital or Hitler's Mein Kampf. Simple prescriptions unbounded by empirical evidence. More fascinating still is that she holds up Bastiat's The Law telling us how politicians use the Law to take away our freedom.

The fascinating part is that this volume is getting close to two hundred years old and describes a slightly different world. However, Bastiat was at his best using a method of rhetoric that outlined the stupidity of some policy proposals - as for example his item on a Negative Railroad.

Should we start a charity to rescue young people from the libertarian fold - like a variety of a cult busting group?


Novae Meridianae Demetae Dexter delenda est