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Fillable Printable Federal Count Affidavit Form - Federal Count of Australia

Fillable Printable Federal Count Affidavit Form - Federal Count of Australia

Federal Count Affidavit Form - Federal Count of Australia

Federal Count Affidavit Form - Federal Count of Australia

IN THE FEDERAL COURT OF AUSTRALIA (FCA)
NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA
FAIR WORK DIVISIONNo: NSD580/2012
NOTICE OF FILING
This document was filed electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on
13/06/2012.
DETAILS OF FILING
Document Lodged:
Affidavit - Form 59 - Rule 29.02(1)
File Number:
NSD580/2012
File Title:James Hunter Ashby v Commonwealth of Australia & Anor
District Registry:NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA
Dated: 14/06/2012Registrar
Note
This Notice forms part of the document and contains information that might otherwise
appear elsewhere in the document. The Notice must be included in the document served
on each party to the proceeding.
Affidavit
Federal Court of Australia
No: NSD580/2012
District Registry:
New South Wales
Division:
Fair Work
JAMES HUNTER ASHBY
Applicant
COMMONWEALTH OF AUSTRALIA and another according
to the Schedule
First Respondent
Affidavit of:
Siobhan Michelle Keating
Address:
456 Lonsdale Street, Melbourne, Vic, 3000
Occupation:
Legal Practitioner
Date:
13 June 2012
I, Siobhan Michelle Keating, of 456 Lonsdale Street, Melbourne, Legal Practitioner, affirm:
1.
I am a solicitor in the employ of Maurice Blackburn Lawyers
(Maurice Blackburn),
which represents the Second Respondent in this proceeding
(the Proceeding).
2.
The statements set out in this affidavit are made from my information, knowledge and
belief based on instructions given to me by the Second Respondent or from my own
personal knowledge.
3.
On 18 May 2012, Justice Rares made orders in relation to the Proceeding
(18 May
Order)
including an order that the Respondents file and serve any application to
strike out the Statement of Claim, in whole or in part, and any application to stay or
dismiss the Proceeding, on or before 8 June 2012. His Honour ordered that any
strike out application be fixed for hearing on 15 June 2012 and any application to
stay or dismiss the Proceeding be listed for directions on that day.
Form 59, Rule 29.02(1)
Filed on behalf of
Prepared by
Law firm
Tel
Email
Address for service
Mr Peter Slipper, the Second Respondent
Siobhan Keating, Legal Practitioner
Maurice Blackburn Lawyers
(03)
.
9605 2831
Fax
(93)
9258 9613
ibornstein@mauriceblackburn.com.au
Level 10, 456 Lansdale Street, Melbourne, Vic, 3000
Taken by
4.
On 28 May 2012, the Applicant served, in accordance with Order 4 of the 18 May
Order an affidavit of Mr Rodney McKemmish
(McKemmish Affidavit) and an
affidavit of Mr Michael Harmer.
Leave to Issue Subpoenas
5.
I have analysed the affidavit of McKemmish. It annexes two CDs, marked
RDM-2
and RDM-3. RDM-2 contains a forensic image of an iPhone said to belong to the
Applicant. RDM-3 contains a spreadsheet of data extracted from that 'Phone
including logs of SMS messages, MMS messages and Chat messages sent to and
from the Applicant's iPhone.
6.
The annexures to the McKemmish Affidavit show, in the period 1 February 2012
through 12 April 2012, communications relevant to the purpose or purposes for which
the Proceeding was commenced, between the Applicant and a number of people
(relevant communications)
including:
(a)
a journalist in the employ of News Limited;
(b)
a senior member of the Liberal National Party in Queensland;
(c)
another member of the Second Respondent's personal staff; and
(d)
a professional media adviser.
7.
Based on my analysis of the affidavit of McKemmish I have formed the view that the
relevant communications provide a basis for inferring that the Proceedings were
substantially or wholly commenced for a collateral purpose such that the Proceeding
constitutes an abuse of process.
8.
After analysing the McKemmish Affidavit in the manner described above, on 8 June
2012 the Second Respondent filed an Interlocutory Application seeking, inter alia,
final relief and/or an order that the Proceeding be stayed on the grounds that the
Proceeding constitutes an abuse of process. Annexed hereto and marked
SK-1
is a
copy of the Second Respondent's Interlocutory Application
(Interlocutory
Application).
Taken by
9.
I have also formed the view that further documents and records are relevant to the
issue of the purpose for which the Proceeding was substantially or wholly
commenced and thus relevant to the disposal of the Interlocutory Application,
namely, all communications in the period leading up to and immediately after the
commencement of the Proceeding: (1) between the Applicant and each of the
individuals referred to in paragraph 6 above, and (2) all such communications
between each of the individuals referred to in paragraph 6.
10.
Accordingly, the Second Respondent respecffully seeks the leave of the Court to
issue subpoenas to produce documents for this purpose as against the Applicant and
each of the individuals referred to in paragraph 6. Annexed hereto and marked
SK-2
are copies of the proposed subpoenas.
Variation of Order of 18 May 2012
11.
The primary relief sought in the Interlocutory Application is the final relief or
permanent stay of the Proceeding on the grounds of abuse of process.
12.
Consolidating the hearing of the Second Respondent's applications for the strike out
and the final relief/stay is desirable in that:
(a)
if the Second Respondent is successful in his application to stay the
Proceeding, the strike out application would be rendered otiose; and
(b)
the issue of whether there is a reasonable cause of action against the
Second Respondent is common to both applications.
13.
This approach would avoid the duplication of proceedings and is consistent with the
overarching purpose set out in section 37M(1) of the
Federal Court of Australia Act
1976
(Cth) in that it will best facilitate the resolution of the dispute as quickly,
inexpensively and efficiently as possible.
Deio ent
-
Taken by
14.
On the basis of the foregoing the Second Respondent seeks an order varying Order
6 of the Order of Justice Rares of 18 May 2012, such that the totality of the prayer for
relief set out in the Interlocutory Application be heard together on a date to be fixed,
such date being not earlier than the date for compliance with the subpoenas that are
annexure SK-2.
Affirmed by the deponent
at Melbourne
in Victoria
on 13 June 2012
Before me:
Legal Practitioner
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Federal Court of Australia
NS358012012
District Registry:
New South Wales
Division:
Fair Work
Schedule
JAMES HUNTER ASHBY
Applicant
COMMONWEALTH OF AUSTRALIA
First Respondent
PETER SLIPPER
Second Respondent
Federal Court of Australia
No: NSD580/2012
District Registry:
New South Wales
Division:
Fair Work
JAMES HUNTER ASHBY
Applicant
COMMONWEALTH OF AUSTRALIA and another according
to the Schedule
First Respondent
Affidavit of:
Siobhan Michelle Keating
Address:
456 Lonsdale Street, Melbourne, Vic, 3000
Occupation:
Legal Practitioner
Date:
13 June 2012
CERTIFICATE IDENTIFYING ANNEXURE
This is the, annexure marked "SK-1"now produced and shown to
Siobhan Michelle Keating
at the time of affirming her affidavit on 13 June 2012.
Before me:
oe
46'2
DASik
r-7.
132,§1112
V:44.
An nexure "SK-1"
SECOND RESPONDENT'S INTERLOCUTORY
APPLICATION DATED 8 JUNE 2012
IN THE FEDERAL COURT OF AUSTRALIA (FCA)
NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA
FAIR WORK DIVISION
No: NSD580/2012
NOTICE OF FILING
AND HEARING
This application was filed electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on
8/06/2012.
DETAILS OF FILING
Document Lodged:
Interlocutory Application (Fair Work Schedule 3 Exemption) - Form
35 - Rule 17.01(1)(a)
File Number:
NSD580/2012
File Title:
James Hunter Ashby v Commonwealth of Australia & Anor
District Registry:
NEW SOUTH WALES REGISTRY - FEDERAL COURT OF
AUSTRALIA
Reason for Listing:
Directions
Time and date for hearing:
15/06/2012, 9:30 AM
Place:
To Be Advised
Dated:
12/06/2012
Registrar
NOTES
• This Notice forms part of the application and contains information that might
otherwise appear elsewhere in the application. The Notice must be included in the
application served on each party to the proceeding.
2. The 'reason for listing' is descriptive and does not limit the issues that might be
dealt with, or orders that might be made, at the hearing.
Interlocutory Application
Federal Court of Australia
No: NSD580/2012
District Registry:
New South Wales
Division:
Fair Work
JAMES HUNTER ASHBY
Applicant
COMMONWEALTH OF AUSTRALIA and another according
to the Schedule
First Respondent
To the Applicant
The Second Respondent applies for the interlocutory orders set out in this application.
The Court will hear this application, or make orders for the conduct of the proceeding, at the
time and place stated below. If you or your lawyer do not attend, then the Court may make
orders in your absence.
Time and date for hearing:
15 June 2012
Place:
Level 17, Commonwealth Law Courts Building
Queens Square
SYDNEY NSW 2000
The Court ordered that the time for serving this application be abridged to 8 June 2012.
Date: 8 June 2012
Signed by an officer acting with the authority
of
the
District Registrar
Form 35, Rule 17.01(1)
Filed on behalf of
Prepared by
Law firm
Tel
Email
Address for service
Peter Slipper, the Second Respondent
Josh Bornstein
Maurice Blackburn Lawyers
(03)
.
9605 2831
Fax
(08) 9258 9613
jbornsteinQmauriceblackburn.com.au
_
Level 10, 456 Lonsdale Street, Melbourne, Vic, 3000
2
Interlocutory orders sought
1.
Pursuant to rule 26.01 of the Rules, an order that judgment be given against the
Applicant because the proceeding as against the Second Respondent is an abuse of
the process of the Court.
2.
In the alternative to order 1, an order that the proceeding as against the Second
Respondent be permanently stayed as an abuse of the process of
the
Court.
3.
In the alternative to orders 1 and 2, pursuant to rule 6.02 of the Rules, an order that the
Applicant must not continue the proceeding as against the Second Respondent without
the leave of the Court on the ground that the Applicant started a vexatious proceeding
against the Second Respondent.
4.
Pursuant to rule 26.01 of the Federal Court Rules 2011
(the Rules)
an order that
judgment be given against the Applicant because no reasonable cause of action
against the Second Respondent is disclosed.
5.
Further or in the alternative, pursuant to rule 16.21 of the Rules an order that the
Statement of Claim served by the Applicant on 15 May 2012
(the Claim),
in so far as it
alleges any contraventions, or conduct constituting contraventions, of the
Fair Work Act
2009
(Cth) against the Second Respondent, be struck out on the ground that the Claim
fails to disclose a reasonable cause of action.
6.
In the alternative to order 5, pursuant to rule 16.21 of the Rules, an order that
paragraphs 26, 27, 28, 31, 32(b) and 32(c)(ii) of the Claim be struck out on the ground
that the Claim fails to disclose a reasonable cause of action.
7.
Costs; and
8.
Such further or other orders as the Court considers appropriate.
Service on the Applicant and First Respondent
It is intended to serve this application on the Applicant and the First Respondent.
Date: 8 June 2012
Signed b
sh/13
ornstein
1
Solicitor or he Second Respondent
3
Federal Court of Australia
NSD580/201 2
District Registry:
New South Wales
Division:
Fair Work
Schedule
JAMES HUNTER ASHBY
Applicant
COMMONWEALTH OF AUSTRALIA
First Respondent
PETER SLIPPER
Second Respondent
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