The Cabcharge allegations
166 Mr Ashby contended that the assertion, in the originating application, of his intention to inform the police, reflected his subjective view that he considered the Cabcharge allegations to be so serious, subjectively and objectively, as to warrant such an investigation. For that reason he also contended that the alleged conduct breached the trust and confidence term. Mr Ashby argued that Dr Phillips' report supported the objective reasonableness of his assertion that the Cabcharge conduct amounted to a breach of the safe work term that required the Commonwealth to provide a safe system of work for Mr Ashby and to take all reasonable steps to protect his safety. Dr Phillips said:
"Mr Ashby identified a series of incidents which he believes affected him adversely in the longer term. Specifically:
…
• He was alarmed and worried when [Mr Slipper] on a small number of occasions, handed signed Cabcharge dockets to the driver of an Audi A8 car which the Speaker used on a reasonably frequent basis.
He thought, at the time, and continues to believe, that the actions of the Speaker may have been unlawful …"
Mr Ashby also relied on Dr Phillips' opinion that the main cause for his psychological decompensation in late 2011/early 2012 was what Dr Phillips described as "the increasing psychological trauma which he experienced in his professional relationship with Mr Slipper".
167 I reject those arguments. In my opinion, Mr Ashby included the Cabcharge allegations in the originating application for the predominant purpose of injuring Mr Slipper and assisting a political attack on him to benefit Mr Brough and the LNP. This is emphasised by his decision to include the assertion that he intended to report the matter to the Australian Federal Police. Mr Russell QC had told him, in Mr Brough's presence, two weeks before the originating application was filed that he was free to do so if he was concerned about Mr Slipper's conduct. Mr Ashby did not do so. Instead, he waited to announce his "intention" to do so in the originating application knowing that this would be reported in the media. His statement that he "intended" to make the report was itself made two months after the alleged conduct last occurred and over one month after Mr Ashby had requested that he be allowed to travel at his own expense with Mr Slipper on an overseas trip.
168 Mr Russell QC had also told Mr Ashby that he should check with Harmers about how to deal with the issue. If Mr Ashby or Mr Harmer considered that the Cabcharge allegations warranted reporting to the police, the delay of a week from 13 April 2012 when Mr Ashby swore his affidavit to the filing of the originating application is difficult to comprehend. There was no need to delay reporting conduct to the police that was alleged or suspected of being criminal for over a week so that Mr Ashby could announce his "intention" to make such a report when his application was filed. Mr Ashby's planned attack on Mr Slipper involved prior publicity concerning other allegations of Mr Slipper's misuse of his travel entitlements.
169 There is no evidence to suggest that Mr Ashby ever asked Mr Slipper for or received any explanation of what he pleaded as being "questionable conduct". Mr Ashby's delay, and most particularly his request to accompany Mr Slipper overseas, point to his predominant purpose as being to seek publicity for the allegations so as to damage Mr Slipper and assist the latter's political opponents. They were allegations that were calculated to raise the spectre that Mr Slipper had engaged in criminal conduct, without actually asserting that he had done so.
170 Additionally, Mr Russell QC said that Mr Ashby had told him that he had observed Mr Slipper give three unsigned Cabcharge dockets to a cab driver on one occasion. Mr Russell QC had responded that that seemed highly inappropriate and would not be done in the military, of which he had experience. At the same time, Mr Brough said that the position was similar for members of parliament and the conduct seemed highly irregular, adding "I guess it's possible it might relate to three different journeys and if so, it would be within entitlement". In his originating application, Mr Ashby had asserted that Mr Slipper engaged in similar conduct on two further occasions. However, Mr Ashby alleged that on those two other occasions, Mr Slipper handed over "multiple" signed Cabcharge vouchers. Mr Ashby was intending to use his contemplated proceedings to damage Mr Slipper. It is not necessary to decide whether Mr Ashby forgot, or overlooked mentioning in the meeting with Mr Russell QC, or Mr Russell QC did not take in that Mr Ashby had told him, about two other instances of conduct that had given Mr Ashby concern at the time each occurred where Mr Slipper handed over multiple blank, but signed, Cabcharge vouchers without asking the driver how many vouchers he wanted.
171 Mr Ashby's conduct in early to mid March 2012 when he sought to travel overseas at his own expense with Mr Slipper, well after he asserted the last of the Cabcharge incidents had occurred, demonstrated that he had no genuine belief in his later assertion, in the originating application that Mr Slipper had involved him in "questionable conduct in relation to travel" or that Mr Slipper or the Commonwealth had acted in breach of any contract in that respect.
172 In Omilaju [2005] 1 All ER at 80-83 [14]-[22], Dyson LJ explained that a term of trust and confidence in an employment contract may be breached by a relatively minor act that occurs against a background of a series of other acts or incidents, some of them quite trivial. He held that those acts or incidents cumulatively may amount to a repudiatory breach of the implied term of trust and confidence. However, he said that an entirely innocuous act on the employer's part cannot be the final straw even if the employee genuinely, but mistakenly, interprets it as hurtful and destructive of his trust and confidence in the employer. The test of whether the employee's trust and confidence has been undermined is, as his Lordship said, objective: [2005] 1 All ER at 83 [22].
173 The makers of the Cabcharge allegations were anxious to wound but afraid to strike. The originating application stopped short of alleging directly that the "questionable conduct" amounted to a breach of the law, whether civil or criminal. Rather, it described the conduct in a way that made it appear that Mr Slipper misused his entitlements by handing over blank signed vouchers without any proper basis. But, as Mr Brough had tellingly said in the discussion with Mr Russell QC and Mr Ashby on 6 April 2012, if the number of vouchers handed over, in fact, related to the number of journeys that Mr Slipper had previously made, it would have been within Mr Slipper's entitlement to act as he did.
174 The originating application raised, but did not answer, the obvious question of why Mr Slipper would hand over more vouchers than represented journeys he had made. That conduct may well have justified pleading the allegation that Mr Slipper engaged in questionable conduct in relation to travel. However, when the pleader coupled Mr Slipper's conduct with the allegation that Mr Ashby intended to go to the police with the details, the originating application then conveyed to an ordinary reasonable reader that Mr Ashby and Mr Harmer believed Mr Slipper's actions involved more than "questionable conduct". Mr Ashby and Mr Harmer added to the characterisation of Mr Slipper's conduct, the damaging and prejudicial assertion that Mr Ashby intended to go to the police about it. That assertion was calculated to create the impression, conveyed by the originating application, that the Cabcharge allegations involved Mr Slipper in breaching the criminal law. Mr Harmer had not merely pleaded that Mr Slipper had "involved" Mr Ashby in "questionable conduct in relation to travel" but added that his client intended to go to the police, in the context that those allegations were "supported by sworn/affirmed evidence".
175 The recitation of the three Cabcharge incidents in the originating application, without any other context or explanation, coupled with the assertion of Mr Ashby's intention to inform the police, was capable of conveying, and I find did convey, to an ordinary, reasonable reader of the pleading that Mr Ashby was alleging that Mr Slipper was guilty of misuse of the Cabcharge dockets. Mr Ashby and Mr Harmer knew, and intended, that the media, including Mr Lewis, would obtain access to the originating application as soon as possible after it was filed and publish its allegations extensively. They both knew that the publication of those allegations would be highly damaging to Mr Slipper. Mr Lewis commenced his article published in The Courier Mail on 21 April 2012:
"Speaker Peter Slipper is facing explosive allegations he sexually harassed a young male adviser and misused taxpayer-funded Cabcharge dockets in a major new crisis for the Gillard Government."
176 A person may publish matter concerning another person (such as Mr Slipper) that an ordinary reasonable person, drawing on his or her knowledge and experience of human affairs, would understand in a defamatory sense. A publisher who does so is responsible, for the purposes of the tort of defamation, for conveying that imputation or understanding. However, the publisher will not be responsible for conveying an imputation or understanding if the matter complained of is only capable of conveying the defamatory meaning because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the other person (such as Mr Slipper): Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 per Mason J with whom Gibbs CJ, Wilson and Brennan JJ each agreed. In his seminal speech in Lewis v Daily Telegraph Ltd [1964] AC 234 at 284, Lord Devlin explained:
"When an imputation is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts …" (emphasis added)
And, his Lordship continued (at 285) in a passage partly cited with approval (commencing with my first emphasis below) by Brennan J in Harrison 149 CLR at 304:
"It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.". (emphasis added)
177 Mason J cited a passage from the judgment of Holroyd Pearce LJ in Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374 that made a similar point: Harrison 149 CLR at 302. His Lordship said:
"When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean."
178 Here, the bare facts pleaded in the originating application about Mr Slipper handing over three and multiple incomplete signed Cabcharge vouchers on three different occasions, coupled with both the description of this as "questionable conduct" and the statement that Mr Ashby intended to report these matters to the police, invited an ordinary reasonable reader of the originating application to conclude that Mr Ashby (and the pleader) was alleging that Mr Slipper was guilty of misuse of Commonwealth funds, as indeed Mr Lewis reported. The reasoning of the Privy Council in Jones v Skelton [1963] 63 SR (NSW) 644 at 651 and Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H-364A explains why an ordinary reasonable reader of the Cabcharge allegations in the originating application would conclude that what they were really asserting was that Mr Slipper was guilty of misuse of taxpayer funded Cabcharge vouchers. Their Lordships said:
"The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer... did not care or did not dare to express in direct terms."
179 If Mr Slipper had done nothing legally wrong in handing over signed, but incomplete, Cabcharge vouchers, for example for the reason Mr Brough gave during the meeting with Mr Russell QC on 6 April 2012, then Mr Ashby had no basis to complain of a breach of contract based on the Cabcharge allegations. And, as I have found Mr Ashby's conduct in asking, at his own expense, to accompany Mr Slipper on his official visit to Hungary some time after the last of this allegedly "questionable conduct" had occurred, is completely inconsistent with any honest belief of Mr Ashby's that Mr Slipper had committed any legal wrong by engaging in the conduct the subject of the Cabcharge allegations.
180 The assertion that Mr Ashby intended to report the conduct to the police was irrelevant to any cause of action he may have had, but was included for the purpose of creating an allegation tantamount to criminality against Mr Slipper. However, Mr Ashby and Mr Harmer did not plead any criminality directly, for they stopped at the characterisation of "questionable conduct". That was done with both of Mr Ashby and Mr Harmer knowing and intending that the media could and would report the allegations in the originating application and so damage Mr Slipper's reputation and credibility. It came on the heels of Mr Ashby's intention to file the originating application after Mr Lewis had set the scene by earlier publishing stories (on 16 April 2012) damaging to Mr Slipper concerning other incidents related to his use of travel entitlements.
181 Accordingly, the inclusion of the allegation that Mr Ashby intended to report the Cabcharge conduct to the police was an abuse of the process of the Court. As I have noted, had the pleading not added the reference to Mr Ashby's intention it may not have been an abuse of process.