One Nation staffer James Ashby has failed in his bid to sue the commonwealth to recover $4.5m in legal costs incurred in litigation with his former boss Peter Slipper.
The federal court justice Robert Bromwich on Friday dismissed Ashby’s application for a judicial review of his request for an act of grace payment.
Ashby v Commonwealth of Australia was the latest legal chapter in an almost decade-long fight between Ashby and Slipper, the former speaker of federal parliament’s lower house.
Ashby – who is now the chief of staff to the One Nation leader, Pauline Hanson – sued Slipper for alleged sexual harassment in 2012.
The case was dismissed in December 2012 as an “abuse of process”, a finding overturned by the full federal court in February 2014. Ashby nevertheless dropped the case later that year.
The former Labor government agreed to pay Slipper’s legal costs but Ashby was left to foot his own bill totalling $4.5m.
In October 2018, Ashby applied to the then finance minister, Mathias Cormann, to reimburse him through a discretionary power to make an “act of grace” payment, arguing he was a whistleblower and the commonwealth had unfairly tipped the scales by agreeing to pay Slipper’s costs.
Ashby sought $3.7m for his own costs and more than $780,000 to cover legal costs incurred by his solicitor, Michael Harmer.
When that failed he applied to the federal court for a judicial review, which has now been denied.
“Doubtless Mr Ashby considered that his asserted status as a whistleblower, and his asserted public interest motive in bringing the proceeding against Mr Slipper and the commonwealth, were of great and even determinative significance in his application for an act of grace payment,” Bromwich said. “However, the delegate was not obliged to share that view or to treat such claims as being significant, let alone determinative.”
The finance department had rejected his request to waive costs because they believed “there were alternative options available” to Ashby apart from legal ones. “Implicit in that conclusion is that Mr Ashby’s whistleblowing and public interest motivations could have been advanced by other means than a court proceeding.”
Bromwich said the department had found Ashby had access to a professional counselling service, to the bullying, harassment and workplace violence policy, was able to lodge claims under the Safety, Rehabilitation and Compensation Act and did not raise any concerns about Slipper’s conduct with the department or seek guidance on the complaints resolution procedure.
“In light of the basis upon which the application for an act of grace payment was not approved by the delegate, I am not satisfied that the delegate was required to give any further or better consideration of Mr Ashby’s claims to be a whistleblower, or his claimed motivation for commencing the proceeding against Mr Slipper and the commonwealth,” Bromwich said.
The judge said Ashby “has not made good any case of constructive failure to exercise jurisdiction, improper exercise of power or other error of law”.
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.
