In the matter of Ashby versus the Commonwealth, there is now a staggering $4,537,000 at stake and a piper still waiting to be paid, writes investigations editor and Ashbygate author Ross Jones.
IN OUR LAST episode of the Ashbygate conspiracy, we reported James Ashby and his lawyers had initiated legal action against the Commonwealth, arguing it should pay Ashby’s legal bill which then stood at close to $4 million.
We were wrong, the actual amount sought was $4,537,000.
This figure was revealed in a judgement delivered in the Federal Court by Justice Bromwich on 29 January 2021.
Unfortunately for James, Bromwich determined his arguments that the Crown should satisfy his costs, that is, pay the bill due to his legal representatives Harmers Workplace Lawyers, were, with perhaps one minor qualification yet to be resolved, not worth a pinch.
The Judge concluded:
As none of grounds 1, 3 or 4 of the amended statement of grounds of judicial review have been made out, to the extent that paragraphs 1 and 2 of the originating application depend on those grounds they must fail. It is appropriate to defer the question of costs until the balance of Mr Ashby’s case is heard, not least because that may entail a consideration of the application of s570 of the Fair Work Act to the balance of this proceeding, and thereby to this aspect of the proceeding.
Ground 1, James’ assertion that he’d racked up the monstrous legal bill because he had been a whistle-blower motivated by goodness and a desire to protect others, was nixed by the Court:
“Mr Ashby’s whistle-blowing and public interest motivations could have been advanced by other means than a court proceeding.”
Ground 3 was a James dummy-spit. His lawyers argued that because Slipper’s legal costs had been met by the Federal Government as an act of grace, the Court was somehow prejudiced against him because this act of grace had been made by an ALP Commonwealth Government.
Bromwich also nixed ground 3:
“Mr Ashby has not made good any case of constructive failure to exercise jurisdiction, improper exercise of power or other error of law. It follows that this ground must also fail.”
Ground 4, an extension of the same dummy-spit as ground 3, had James and his legal team trying to convince the Federal Court that 'the delegation of authority to decide whether an act of grace payment application should be granted was flawed'.
This argument met the same fate as grounds 1 and 3.
That leaves ground 2, a claim that the Commonwealth’s refusal to provide an act of grace to James, was 'adverse action contrary to the Fair Work Act 2009'.
Bromwich deferred judgement on this final matter:
'A second arm of the case will proceed in February. It centres on Ashby’s claim that the rejected grace payment application was an adverse action contrary to the Fair Work Act.'
Bromwich stated he would defer awarding costs until ground 2 is decided, but a loss in three from four so far does not augur well for the Ashby team.
As discussed in Ashbygate: The plot to destroy Australia’s speaker (p321):
As Justice Rares pointed out, Harmers picked s570 of the Fair Work Act as its chosen assault weapon in the full knowledge it contained a presumption against costs being awarded. In other words, s570 contained a presumption both parties would meet their own costs, unless, as Rares found in this case, the matter was demonstrably unreasonable; costs can then be awarded against the unreasonable party.
In his December 2012 judgement, Justice Rares determined:
The power to make an order for costs is in the discretion of the Court once the factors in s 570(2)(a) or (b) have been satisfied. The power must be exercised judicially. Mr Ashby instituted the proceedings without reasonable cause because they were and are an abuse of the process of the Court. Additionally, his unreasonable acts of instituting and prosecuting the proceedings caused Mr Slipper to incur costs for the same reason. Mr Ashby should be ordered to pay Mr Slipper’s costs of the proceedings.
~ Ashbygate: the plot to destroy Australia’s speaker (p320)
If Bromwich awards the costs of Ashby’s latest try-on against him as expected, that will bring the total legal bill towards $5 million.
In a nutshell, things aren’t looking good for Team Ashby.
Ashby always maintained Harmers were acting pro bono and no evidence has surfaced to say otherwise. But this was obviously never the case, otherwise, why does James want the money?
One way for James to generate some cash to pay his bills would be a fair-dinkum tell-all book, naming names and setting out just what the Liberal Party really did to game our Australian democracy.
That would sell.
Investigations editor Ross Jones is a licensed private enquiry agent and the author of 'Ashbygate: The Plot to Destroy Australia's Speaker'. You can follow Ross on Twitter @RPZJones.
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