Ashby v Slipper [2014] FCAFC 15

Ashby v Slipper [2014] FCAFC 15

The Full Court (by majority, Mansfield and Gilmour JJ) held that the summary dismissal of Ashby's proceedings as an abuse of process was erroneous, as the primary judge drew speculative and unwarranted adverse inferences, failed to give proper weight to unchallenged evidence, and did not provide procedural fairness to Mr Harmer before making serious findings of professional misconduct. The evidence did not support the conclusions about predominant improper purpose or Harmer's intention. Leave to appeal was granted to Ashby; his appeal succeeded and orders of dismissal were set aside. Harmer's application for leave to appeal as a non-party was dismissed for lack of standing, as he was not...

Jurisdiction
Australia
Judgment Date
27 February 2014
Procedural Posture
Appeal / Judgment on Applications for Leave to Appeal, Appeals and Cross Applications
Outcome
Ashby's application for leave to appeal was granted and the appeal allowed; orders dismissing his proceedings were set aside; Harmer's application for leave to appeal as a non-party was refused.
Legal Topics
['abuse of Process' 'sexual Harassment' 'adverse Action' 'summary Dismissal' 'standing of Non Party Solicitor to Appeal' 'professional Obligations of Legal Practitioners']
['practice and Procedure' 'employment Law' 'professional Responsibility'] ['abuse of Process' 'sexual Harassment' 'adverse Action' 'summary Dismissal' 'standing of Non Party Solicitor to Appeal' 'professional Obligations of Legal Practitioners']

Case Brief

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Procedural Posture

Appeal / Judgment on Applications for Leave to Appeal, Appeals and Cross Applications

Legal Issues

  1. 1 ["Whether the primary judge erred in dismissing Ashby's proceedings as abuse of process on grounds of improper purpose and collateral motives" 'Whether findings of unprofessional conduct against Mr Harmer (solicitor) were properly made without fair notice and opportunity to respond' 'Whether interlocutory summary dismissal and adverse findings were supported by the evidence or inferences were unwarranted or speculative' 'Whether a solicitor (Harmer) has standing as a non-party to appeal adverse findings made in judicial reasons for judgment']

Ratio Decidendi

The Full Court (by majority, Mansfield and Gilmour JJ) held that the summary dismissal of Ashby's proceedings as an abuse of process was erroneous, as the primary judge drew speculative and unwarranted adverse inferences, failed to give proper weight to unchallenged evidence, and did not provide procedural fairness to Mr Harmer before making serious findings of professional misconduct. The evidence did not support the conclusions about predominant improper purpose or Harmer's intention. Leave to appeal was granted to Ashby; his appeal succeeded and orders of dismissal were set aside. Harmer's application for leave to appeal as a non-party was dismissed for lack of standing, as he was not...

Court Disposition

Ashby's application for leave to appeal was granted and the appeal allowed; orders dismissing his proceedings were set aside; Harmer's application for leave to appeal as a non-party was refused.

Orders

  • ['Leave to appeal granted to Ashby; appeal allowed.' "Orders made on 12 December 2012 set aside; in lieu, Slipper's interlocutory application dismissed and Slipper to pay Ashby's costs." "Respondent to pay Ashby's costs of the application for leave to appeal and appeal." "Harmer's application for leave to appeal...