The first was that the Ashby text exchanges presented as evidence in the case "do not read like those concerning a man claiming to feel sexually harassed or emotionally distressed by such conduct".
The second was that the intention behind the allegations was fundamentally to make a public relations splash, and to use the filing of documents in the courts to create the substance of a damaging media story.
A similar method had been used in the David Jones sexual harassment case by the same legal and PR team, and on both occasions selected public relations and media representatives were allegedly informed before the court documents were lodged.
Irrespective of the merits of the complaint in the David Jones case, it was settled out of court. This meant the judiciary did not have occasion to express a view on the role of public relations in the way that case was handled. Justice Rares took the opportunity to make up for that deficiency in delivering his ruling on the Ashby application.
Of the six named parties in the Ashby case, three are public relations operatives: Anthony McClellan runs his own PR consultancy, and Ashby and his colleague Karen Doane were employed at the time as in-house PR staffers for Slipper. The other three are Mark McArdle and Mal Brough, Queensland politicians, and Michael Harmer, the lawyer who acted for Ashby.
On the conduct of the named parties, the judge found as follows:
"A party cannot be allowed to misuse the Court's process by including scandalous and 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 curious use of pronouns in the judge's ruling ("his, her or its") throws a wide net over the potential offenders in this case. It's not beyond reason to wonder whether a strict application of the decision might cost Harmer his practising certificate or cause difficulties for Brough in holding on to his candidacy of Slipper's Queensland seat of Fisher, for which he has now won pre-selection.
McClellan is a seasoned PR practitioner who is in a position somewhat analogous to Harmer, with one difference. Harmer has been given a sobering reminder that the first duty of a practising solicitor is to the court, a proven breach of which can bring to an end an otherwise promising career.
Nobody would begrudge Harmer or McClellan the professional entitlement to take on an undeserving client. But Harmer cannot do so while knowingly being a party to false or misleading allegations being placed before the court, even if they are subsequently withdrawn.
McClellan, however, can largely operate as a free spirit with no presiding body to which he is professionally accountable. The public relations institute (PRIA) boasts a 15-point code of conduct but McClellan can safely take consolation in its impotence, even if he is a PRIA member.
That's not to say he would be safe in the event that conspiracy allegations on the matter were pursued in the courts along the lines of those raised in a letter to the Australian Federal Police by Queensland backbencher Graham Perrett. Were such an eventuality to unfold, McClellan might require more than professional indemnity insurance for protection.
As for Slipper's two PR staffers, it seems they were working covertly against the interests of the man whose interests they were being paid to serve. Although they appear to have breached most points of the PRIA code, Doane probably has little to fear from the courts. Her encouragement of Ashby's activities may have been self-serving but she stopped short of action. As for Ashby, his background would suggest his move into PR was largely opportunistic, as it appears was his initiative with respect to the Slipper allegations.
Against that view, Margot Saville was in court to hear Rares' judgment. She wrote in Crikey that Ashby was "a small but perfectly formed Trojan Horse who was wheeled into Slipper's office to blow it up".
On that reading, one might infer that Ashby was passively engaged in a bit-part within a larger game played out by more powerful forces. If a criminal conspiracy charge ever came to pass, Ashby may wish to rely on an interpretation along those lines — although the Rares' judgment noted a text message from Ashby's friend and confidante, Tania Hubbard, which expressly warned him at the time that his decision to act against Slipper might be being made "from ego". She also cautioned him with this question: "Are you feeling a rush from the power of this moment?".
The icing on the cake in a strategic public relations campaign is a compliant reporter, and the journalist of choice in the Ashby campaign was Steve Lewis of News Limited, a "popular" reporter among his press gallery peers.
As history records, the Ashby allegation was a Lewis exclusive and, by most standards, a journalistic success story run on front pages around the nation during the latter part of April 2012.
That said, the Rares' finding now casts the April exclusive in a somewhat different light. Among the skills usually associated with a leading hard-nosed reporter, of which Lewis is reputedly an exemplary specimen, are a propensity for scepticism and a capacity for objectivity.
On the question of objectivity, Justice Rares did not accept the News Limited argument about Lewis's enthusiastic text to Ashby: "We will get him". News submitted that the expression did not refer to Slipper but to a Commonwealth driver. Justice Rares refused to believe that account and concluded that Lewis was referring to Slipper.
As far as scepticism is concerned, when all matters are considered and set against Justice Rares' finding of what actually happened, it has to be admitted that Steve Lewis asked no hard questions, and as a consequence, to put it plainly, he was conned.
While Justice Rares spared Lewis his harshest comments and did not lump him with the main named parties directly implicated in the abuse of process ruling, it might be interesting to watch how this case plays out with respect to the Finkelstein report into the Australian media, and in particular its proposed establishment of an independent news media council.
Former British Prime Minister Tony Blair told the UK Leveson Inquiry that he was reluctant to goad the press barons in government, and there is merit in that caution. However, if there were there nothing to lose in this country, government strategists might ask themselves the question: why not?
In some quarters there is an abiding belief that the News Limited press, in particular, would be hard pressed to be more unfair to the Gillard Government than they are now. If that belief became prevalent, the Communications Minister, Senator Conroy, may very well get the green light to set the Finkelstein wheels in motion. And Steve Lewis will have done his bit to make it happen.
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