Former David Jones chief Mark McInnes might be feeling quietly vindicated today after Justice Rares singled out Harmers Workplace Lawyers for scathing criticism in his judgment in the case brought by James Ashby against the former Parliament 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.
Harmer has a reputation for actively seeking out media coverage and filing a broad-ranging statement of claims. He is best known for acting in the sexual harassment claim brought by Kristy Fraser-Kirk against Mark McInnes, which resulted in a confidential settlement and McInnes’ resignation from David Jones.
Most of Harmer’s cases do settle before they get to court, partially as a result of defendants who don’t want to bear the brunt of the media spotlight, but the action brought by James Ashby proceeded all the way to a judgment which was highly critical of Harmer.
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 originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper,” Justice Rares found.
“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,” he found.
“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 and Harmer has issued a statement saying he is “shocked and disappointed” by Justice Rares’ findings.
“We will argue strongly on appeal that the conclusions in his Honour’s judgment made about our conduct of the case are simply not justified by the evidence. Neither myself, nor this firm, are part of any conspiracy,” Harmer said.
McInnes was contacted for comment but failed to respond. However, a source told SmartCompany that 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 says.
For both the McInnes and Slipper case, Harmers engaged spin doctor Anthony McClelland in order to facilitate media coverage of these early claims.
“It is all to do with pressuring clients into settling. 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, told SmartCompany that legal practitioners, particularly in the area of employment law, are often placed in situations where their client is suggesting that 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.
“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 does not think the judgment will make a difference to the tactics used by lawyers in the future as most do not engage in the sort of strategy deployed by Harmer.
“I don’t think these tactics are part of mainstream practice anyway and this just emphasises why they are not,” he says.
Power says 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 and the duty to the court involves 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 says.
“It’s an active warning to lawyers and clients with prospective claims that they should not expect their lawyers to do unrealistic things.”