Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411

FEDERAL COURT OF AUSTRALIA

Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411 Citation: Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411

Parties: JAMES HUNTER ASHBY v COMMONWEALTH OF AUSTRALIA and PETER SLIPPER

File number: NSD 580 of 2012

Judge: RARES J

Date of judgment: 12 December 2012

Corrigendum: 28 May 2013

Catchwords: PRACTICE AND PROCEDURE – dismissal or stay – application for proceedings to be dismissed or stayed as an abuse of process pursuant to r 26.01(1) of the Federal Court Rules 2011 (Cth) – categories of abuse of process not closed – where allegations allegedly made in pleading for predominant purpose of a political attack to advance maker's own interests – where some allegations made that were irrelevant, scandalous or calculated to injure – where applicant's lawyer responsible for impugned allegations – where applicant and lawyer intended or aware that media would obtain a copy of pleading and publish allegations made in it COSTS – where Court's power to order a party to pay costs limited by s 570(1) of the Fair Work Act 2009 (Cth) – to cases where Court satisfied that applicant instituted proceedings vexatiously or without reasonable cause, or that applicant's unreasonable act or omission caused respondent to incur costs Held: proceedings an abuse of process – applicant to pay costs

Legislation: Constitution of the Commonwealth of Australia s 40 Evidence Act 1995 (Cth) s 126H Fair Work Act 2009 (Cth) ss 340, 342, 351, 372, 545, 550, 570(1), 570(2)(a), 570(2)(b) Federal Court of Australia Act 1976 (Cth) s 37M(2)(e) Federal Court Rules 2011 (Cth) rr 2.32, 2.32(2,) 6.02, 8.05(1)(a), 26.01, 26.01(1)(b) Judiciary Act 1903 (Cth) ss 78B, 78B(1) Legal Profession Act 1987 (NSW) s 57B Legal Profession Act 2004 (NSW) Professional Conduct and Practice Rules 1995 (NSW) Safety Rehabilitation and Compensation Act 1988(Cth) s 45(4)