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Peter Slipper case: why Mark McInnes is grinning

Former David Jones chief Mark McInnes might be feeling quietly vindicated after Justice Rares’ judgment in the Slipper trial. The same lawyer has been slammed by the judge for his tactics.

Former David Jones chief Mark McInnes may be feeling quietly vindicated today after Justice Steven Rares singled out Harmers Workplace Lawyers for scathing criticism in his judgment in the case brought by James Ashby against the former speaker Peter Slipper.

After leaving his partnership at Freehills and a host of blue-chip clients, Michael Harmer established his own practice in 1996 and has gained a reputation as an aggressive workplace relations litigant bringing claims against high-profile defendants.

He’s known for actively seeking out media coverage and filing broad-ranging statements of claim. The best example of that was s-xual harassment claim brought by Kristy Fraser-Kirk against McInnes, which resulted in a confidential settlement and McInnes’ resignation from the retailer. Most of Harmer’s cases settle before they get to court, partially as a result of defendants who don’t want to bear the brunt of the media spotlight.

Justice Rares slammed Harmer for including damaging and at times irrelevant allegations in the originating process, which were then quietly dropped after extensive media coverage, and held that the case was an abuse of process. The judgment read:

The originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper.

A lawyer cannot open a case in court by making statements that may have ruinous consequences to the person attacked that the lawyer cannot substantiate or justify by evidence. Similarly, a lawyer cannot plead such statements and assert that they are supported by sworn or affirmed evidence, when he or she does not have a reasonable basis for making such an assertion.”

Justice Rares found the inclusion of “scandalous and irrelevant” allegations from 2003 in the originating process and the assertion about Cabcharge allegations had “no legitimate forensic purpose”:

No lawyer acting responsibly could have included either of those matters … in the originating application to make what would become a public attack on Mr Slipper when it was filed.

A party cannot be allowed to misuse the court’s process by including scandalous, irrelevant or damaging allegations, knowing that they would receive very significant media coverage and then seek to regularise his, her or its pleading by subsequently abandoning those claims.”

The judgment is likely to be appealed; Harmer has issued a statement saying he is “shocked and disappointed” by the findings.

McInnes was contacted for comment but did not respond. However, a source told Crikey Harmer employed exactly the same tactics against Slipper as he did against McInnes.

At one stage they said they had 14 co-claimants and none ever materialised, and there were various other accusations made at various stages which delivered front pages and led the news; none of which were shown to have any merit,” the source said.

For both the McInnes and Slipper cases, Harmers engaged spin doctor Anthony McClelland to handle media coverage of these early claims. “It is all to do with pressuring clients into settling,” the source said. “You would think that clients would think twice before putting themselves in that position, it is pretty horrible stuff.”

Charles Power, partner at law firm Holding Redlich, says legal practitioners, particularly in the area of employment law, are often placed in situations where their client is suggesting allegations be made or steps be taken in the conduct of the case because of the potentially adverse publicity that it might generate for the other party.

This case is a reminder that you have got to be careful if you are considering taking those steps,” he said. “At all times you have got to satisfy yourself, as a legal practitioner, that there is a genuine belief in the facts that are alleged in the case by your client, and that the allegations that you are making have a reasonable relationship with the claim that you are making.”

Power says he doesn’t think the judgment will make a difference to the tactics used by lawyers in the future because most don’t play by Harmer’s strategy. “I don’t think these tactics are part of mainstream practice anyway and this just emphasises why they are not,” he said.

Power reckons if an appeal is not successful, Harmer could face an investigation by the NSW Law Society.

Workplace relations lawyer Peter Vitale says the duty of a lawyer is, first and foremost, to the court — so not putting forward claims which the lawyer knows are not supported by evidence. “I am certainly not suggesting the solicitor in this case is guilty of wrongdoing but it seems to me that, regardless of all of that, the case is still a very apt warning to lawyers and their clients about putting forward spurious claims,” he said.

It’s an active warning to lawyers and clients with prospective claims that they should not expect their lawyers to do unrealistic things.”

*This article was originally published at SmartCompany

17
  • 1
    Posted Thursday, 13 December 2012 at 1:56 pm | Permalink

    I note that Shadow Attorney General George Brandis *QC* has been very slow to comment on this fiasco, despite being very quick to stoke it up while it was still before the court.

  • 2
    shepherdmarilyn
    Posted Thursday, 13 December 2012 at 2:04 pm | Permalink

    What is that spiv. going to appeal, anyone with 2 brain cells could see there was never a case.

  • 3
    Mike Smith
    Posted Thursday, 13 December 2012 at 3:50 pm | Permalink

    Another mud-slinging case from the Coalition where the mud turned out to be Fullers Earth.

    (Fuller’s earth is usually highly plastic, sedimentary clays or clay-like earthy material used to decolorize, filter, and purify animal, mineral, and vegetable oils and greases)

    IOW, you end up cleaner after the process; :)

  • 4
    Patrick Brosnan
    Posted Thursday, 13 December 2012 at 4:45 pm | Permalink

    This seems to have completely stumped the numpties in the MSN. You’d think they’d be trying really hard to find a smoking gun in the hands of current LNP members. But no, they appear to be desperately trying for “balance” which seems to involve constructing the story that’s it’s all the govts. fault that there was a conspiracy to use the courts to bring themselves down. It is quite right to point out, as Emerson has, that, on the balance of probabilities, others within the LNP were involved. And yet the LNP members that made all sorts of allegations whilst the case was on foot are now nowhere to be seen and it is beyond the capabilities of journalists to ferret them out and ask difficult questions. Pathetic. They must think we are idiots.

  • 5
    lloydois
    Posted Thursday, 13 December 2012 at 6:09 pm | Permalink

    Couldn’t agree more Patrick.

    The MSN proving what a conflicted, pathetic bunch of insiders they really are. From VP of the National Press Club Steve Lewis who ‘broke’ the smear down. What a contrast with Slater & Gordon when News Ltd aren’t driving the story.

  • 6
    Warren Joffe
    Posted Thursday, 13 December 2012 at 6:25 pm | Permalink

    A question. Despite my very slight interest in this case which at least has ensured the final end to the ghastly Slipper’s political career I did listen to an ABC news or PM report which said the judge had said the “principal purpose” of Ashby in bringing the case was to damage Slipper politically (and ? help Brough)”.

    My question is “what’s wrong with that, tout court?”.

    Might I not bring a winnable case for damages against the son of someone who I believe had ruined a business I once owned with the not-very-noble but very human and traditional motive of revenge? And would my principal motive (or purpose) mean that I wasn’t entitled to pursue my case to judgment on the merits?

  • 7
    Christopher Nagle
    Posted Thursday, 13 December 2012 at 6:42 pm | Permalink

    I can’t ever remember in my nearly 65 years of life, ever wittnessing such viscerally nasty and unprincipled politicking. One has to go back to the parliaments of the eighteenth century, with their personality factions, to see anything quite so unedifying.

  • 8
    taylormade
    Posted Thursday, 13 December 2012 at 7:02 pm | Permalink

    Having Emerson as the lead prosecuter is not helping the ALP. with the slow uptake with the MSN.

  • 9
    Andybob
    Posted Thursday, 13 December 2012 at 8:42 pm | Permalink

    With so many lawyers involved, one might have thought a little more discipline as regards discoverable text messages could have been exerted. The participants appear to have failed Conspiracy 101.

  • 10
    David O
    Posted Thursday, 13 December 2012 at 9:15 pm | Permalink

    If Fairfax need to see why I stoped buying thier Newpapers and subscribed to Cikey, they only need look at themselves with this case, how they have delt with it in the past and how they are dealing with it now. It does seem a case of trying to find a way to blame Labor in anyway possible, but not investigating the clear discrepancies in the stories of senior members of the LNP, including Tony Abbott and Joe Hockey.

    The findings from Justice Rares seem to have come as a shock to the MSM, yet the writing has been on the wall, most of this evidence has been in the public domain, but as much News print has been wasted on mis representation of this story, it has taken Justice Rares to make a wll argued case, which is in line with what some of the online press of IA and Crikey have been putting forward more than most.

  • 11
    Hugh (Charlie) McColl
    Posted Thursday, 13 December 2012 at 10:44 pm | Permalink

    Patrick Brosnan, if we even start to think the Australian media, in particular the News Ltd newspapers, will go after the Liberals who devised this theatre to “ferret them out and ask difficult questions”, then we are idiots.

  • 12
    Julia
    Posted Thursday, 13 December 2012 at 11:16 pm | Permalink

    Marilyn, I take it your question was rhetorical…i.e. 2 braincells are required.

  • 13
    CML
    Posted Friday, 14 December 2012 at 2:18 am | Permalink

    I hope Peter Slipper slaps a defamation suit on all those responsible when the appeal is, hopefully, denied. The damage to his reputation, deserved or not, and the destruction of his career, is not acceptable. Especially since he was used as a pawn in a much larger game, namely to bring down the government.
    For once I think the government is right about “enquiries”. At the very least there should be a judicial enquiry, if not a Royal Commission. The attempt by the LNP to remove a democratically elected government, is taking us back to 1975. It shouldn’t have happened then, and it definitely must not happen now.

  • 14
    Peter Shute
    Posted Friday, 14 December 2012 at 8:37 am | Permalink

    Warren Joffee read the judgement before asking silly questions.

    Tony Abbott is again claiming today in London that Labor must explain why they chose Peter Slipper to be Speaker (a job he performed adequately) yet fails to explain why he chose Slipper to be his Best Man. Tony has no morality.

    Michelle Grattan (why doesn’t she retire ?)demonstrates why she is losing the plot by claiming investigations into Slippergate and the HSU concocted scandal will help no-one.

    What happens in Canberra ? Is it something in the air that makes them confused?.

    There will be no investigation into HSU if the LNP win as it will have served it’s purpose but during an election year a good look at Slippergate is disaster for the Libs. Blind Freddy can see that.

  • 15
    Hugh (Charlie) McColl
    Posted Friday, 14 December 2012 at 9:41 am | Permalink

    Warren Joffe, I think the case was thrown out because there was no evidence of sexual harassment. In other words, there was another motive for bringing the matter to court and the judge decided his court was not going to be (ab)used for that purpose.
    If you have revenge as a motive you had better shop carefully for a court (and judge) that will admit your case and you’d better prepare to pay handsomely if your concealed intent is uncovered.

  • 16
    qwerty bluett
    Posted Friday, 14 December 2012 at 11:38 am | Permalink

    what the hell is wrong with Australians, where they’d leave themselves with a choice between a douche and a turd sandwich?

  • 17
    SBH
    Posted Friday, 14 December 2012 at 1:50 pm | Permalink

    So, How’s Ashby funding all this?

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