One of Australia’s most prominent employment lawyers has asked the Federal Court to let him appeal adverse findings made against him personally.
The findings were made by Justice Rares in relation to Michael Harmer’s representation of political staffer James Ashby in the legal battle against the former House Speaker Peter Slipper and follows criticism of Harmer’s conduct when representing Kristy Fraser-Kirk in her sexual harassment claim against former David Jones boss Mark McInnes.
Harmer has a reputation for actively seeking out media coverage and filing broad-ranging statements of claim. Justice Rares slammed Harmer for including damaging and at times irrelevant allegations in the originating process in the Slipper case which were then quietly dropped after extensive media coverage.
In his judgment in December last year, 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”.
In response, Harmer has taken the unusual move of challenging Justice Rares’ finding by pursuing an appeal on his own behalf.
Harmers Workplace Lawyers, the law firm founded by Harmer, announced he would seek leave to appeal Justice Rare’s decision.
“Although there are many common grounds in the findings, Justice Rares made separate and distinct findings regarding Mr Ashby and Mr Harmer, so each presently is being separately represented in these applications,” the statement said.
Employment lawyer Peter Vitale told SmartCompany Harmer’s actions were “quite unusual”.
“Firstly because he himself is not a party to the proceeding and so I guess one of the first things that he is going to have to establish is that he has a sufficient interest to be a party,” Vitale says.
“Also it strikes me this is possibly part of a defensive strategy against any application by Slipper for Harmer to pay his legal costs directly.”
But Vitale says it will be difficult for Harmer to succeed in his appeal application.
“It is very difficult to appeal against findings of fact, usually an appeal will only be heard against findings of law that are considered by the appeal court to be wrongly determined in the first instance by the judge,” he says.
Vitale says it is entirely different for findings of fact to be challenged in this way and it would be unusual for an appeal court to overturn findings of fact.
“That said, the findings by the trial judge are incredibly harmful and, whatever assessments are made of his prospects, you can understand why he is appealing,” he says.
“What this appeal indicates is that he contests the findings of the judge that there is anything wrong in the way he handled the case.”