Ashby v Slipper (No 2) [2016] FCA 550

Ashby v Slipper (No 2) [2016] FCA 550

The Court had jurisdiction to make supplemental orders after the substantive proceeding had concluded and there was no reason to confine that power to applications by a party who remained a party at conclusion. Good reason existed to release the Commonwealth from the implied undertaking because Mr Ashby and Mr Slipper consented, there was a legitimate public interest in assisting an Australian Federal Police investigation into alleged unlawful disclosure of the official diary of a former Speaker of the House of Representatives, the discs could contain relevant text messages, the original phone was no longer available, and a further search warrant had failed to disclose the information.

Jurisdiction
Australia
Judgment Date
19 May 2016
Procedural Posture
Interlocutory Application for Release From Implied Undertaking and Supplemental Orders / After the Substantive Proceeding Had Concluded
Outcome
Application granted; the Commonwealth was released from the implied undertaking to the extent identified in the orders, with no order as to costs.
Legal Topics
['release From Implied Undertaking' 'jurisdiction After Proceeding Concluded' 'supplemental Orders' 'disclosure to Australian Federal Police' 'facilitation of Criminal Investigation']
['practice and Procedure' 'employment & Industrial Relations'] ['release From Implied Undertaking' 'jurisdiction After Proceeding Concluded' 'supplemental Orders' 'disclosure to Australian Federal Police' 'facilitation of Criminal Investigation']

Case Brief

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Procedural Posture

Interlocutory Application for Release From Implied Undertaking and Supplemental Orders / After the Substantive Proceeding Had Concluded

Legal Issues

  1. 1 ['Whether the Court retained jurisdiction after the substantive proceeding had concluded to make orders releasing the Commonwealth from any implied undertaking in respect of two discs exhibited to an affidavit.' 'Whether special circumstances or good reason existed to permit the Commonwealth to provide the two discs to the Australian Federal Police for investigation, advice and possible prosecution relating to offences against laws of the Commonwealth.']

Ratio Decidendi

The Court had jurisdiction to make supplemental orders after the substantive proceeding had concluded and there was no reason to confine that power to applications by a party who remained a party at conclusion. Good reason existed to release the Commonwealth from the implied undertaking because Mr Ashby and Mr Slipper consented, there was a legitimate public interest in assisting an Australian Federal Police investigation into alleged unlawful disclosure of the official diary of a former Speaker of the House of Representatives, the discs could contain relevant text messages, the original phone was no longer available, and a further search warrant had failed to disclose the information.

Court Disposition

Application granted; the Commonwealth was released from the implied undertaking to the extent identified in the orders, with no order as to costs.

Orders

  • ['The Commonwealth of Australia has leave to use Exhibit RDM-2 and Exhibit RDM-3 to the Affidavit of Mr Rodney David McKemmish dated 24 April 2012 by providing them to the Commissioner of the Australian Federal Police (the "AFP") to be used for the following purposes: (i) the conduct of investigations by the AFP as...