Friday, December 21, 2012

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

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