James Ashby and the $3 million costs conundrum

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James Ashby is up for $3 million in costs after an adverse judgement by the Federal Court in the Peter Slipper matter, so why isn't he worried? The Ashbygate Trust investigates.

'It is neither appropriate nor feasible to finally decide questions of fact, especially questions of such seriousness, on a costs application and without the benefit of a full factual hearing. But for the discontinuance of his claim, Ashby may well have been tested about why the primary proceeding was instituted in the terms it first appeared, and on a range of matters raised by Slipper arising in his summary dismissal application and defence of the claim.' (Ashby v Slipper (No 3) [2015] FCAFC 9, para 47)

And therein lies the dilemma.

The above paragraph formed part of a Federal Court judgement handed down on 9 February 2015.

Their Honours Mansfied, Siopis & Gilmore JJ, the same team who granted Ashby’s Leave to Appeal, were in Adelaide when they issued their judgement on Harmers/Ashby’s costs application.

Their Honours denied Ashby recourse to either Slipper or the Commonwealth for costs and, in so doing, reversed its previous decision that Slipper meet the costs of Ashby’s appeal. Expensive.

Worse was to come:

'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.' (Ashby v Slipper (No 3) [2015] FCAFC 9, para 82)

Back in September 2012, Ashby settled his claim against the Commonwealth for $50k. It caused then Attorney-General Nicola Roxon no end of pain at the time, but it was an actuarial decision to cap and terminate Commonwealth liability. It was agreed by both parties the $50k was the end of the matter.

But Ashby’s legal team had another go at the Commonwealth anyway, arguing, through variously unsuccessful legal semantics, that Ashby’s settlement was void and that the Commonwealth remained liable as a third-party.  The Commonwealth was forced to defend and racked up a bill doing so. Our sources tell us the Commonwealth’s costs were way in excess of the $50k Ashby and his legal team initially pocketed.

So, Team Ashby is up for the lot. In a telephone conversation, James hinted the costs to his side were about $3 million. Add the Commonwealth.

And now no recourse — though of course Team Ashby immediately floated the idea of an appeal.

It’s a dead horse, stop hitting it.

We had another quick chat with James to seek his view on the decision. He sounded busy with his printing business. As always, he was polite but said he didn’t want to talk about it. Fair enough. More to the point though, he gave no evidence of concern when asked about the bucks.

Which brings to the point of who is going to pay for all this? Not Jim.

On 11 February, Michael Harmer issued a statement saying he would:

"Continue to meet James' legal costs and will continue to support him."

Really? Harmers will swallow $3 million? 

Even if a fair chunk of barrister’s fees were traded off against the promise of future paid work, it’s hard to get that number down to under $2 million. The Trust was in court on a number of occasions and the Harmers’ legal team, wielding polished trolleys groaning with files, outnumbered their opposition about ten to one. So internal costs alone must have been huge.

Who benefitted?

The LNP, that’s for sure. Mal Brough. That’s about it. No other contenders. Except the hard, rich right who wanted IPA Abbott in regardless.

Australia lost one of its best Speakers — an eccentric, flawed perfectionist who effectively managed one of the most exciting parliaments ever. Things got done, and Slipper was integral to its success.

This man has been reduced to stumbling through the moonscape of a previously rich life.

The Trust has completed its preliminary report into this matter.

Sadly, we do not enjoy coercive powers like, say, the AFP, the same people who knowingly let the Bali 9 fall into a death jurisdiction. But there is enough to go on.

In, or after 2016, we can have a jolly good parliamentary enquiry. That would have coercive powers.

If the L-NP had half a brain, it would ditch Bishop, Pyne and Brough now. But you just know they won’t.


Catch up on the full Ashbygate saga on our dedicated page.

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