FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2007] FCA 873

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court Rules o 1 r 4, o11 r 7

Judiciary Act 1903 (Cth)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Dunstan v Orr [2007] FCA 652

Ex parte Bucknell (1936) 56 CLR 221

O’Reilly v The Commissioners of the State Bank of Victoria (1982) 153 CLR 1

Yap v Granich & Associates [2001] FCA 1735

COLIN GEORGE DUNSTAN v ROBYN ORR, JOHN HIGHAM AND JOHN GROWDER

ACD 17 OF 2007

BUCHANAN J

28 MAY 2007

CANBERRA

THE COURT ORDERS THAT:

1.         The application for leave to appeal is refused.

2.         The applicant for leave to appeal pay the costs of the respondent to be taxed, if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BUCHANAN J:

1                     The application with which this judgment deals is for leave to appeal against interlocutory decisions made by a judge of this Court on 4 May 2007 (Dunstan v Orr [2007] FCA 652).  The proceedings in which the interlocutory rulings were made are proceedings brought by the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) and the Judiciary Act 1903 (Cth).

2                     In those proceedings, which were commenced by application filed in 1997, Mr Dunstan has pleaded (by Statement of Claim filed 4 November 1998) a challenge to three identified ‘decisions’.  They were (accepting for present purposes they are in fact decisions open to judicial review) a ‘decision’ that Mr Dunstan may have failed to fulfil his duty as an officer of the Commonwealth public service, a decision to suspend him from duty and a decision to charge him with misconduct.  The grounds of challenge are conventional ones reflected in the ADJR Act.  He seeks that the decisions be set aside and his pay and other entitlements be restored.

3                     The interlocutory applications, the decisions upon those applications and the reasons therefore may be summarised as follows:

(i)         Application to amend the application in the main proceedings by the addition of causes of action and further respondents – refused – insufficient grounds shown, unsatisfactory form, necessity for an inappropriate adjournment.  As to an application to join two further individual respondents, no foundation for the joinder.  As to an application to join the Commonwealth of Australia, a different cause of action is alleged which may be the subject of separate proceedings independently commenced.

(ii)        Access to privileged documents – refused – documents clearly privileged on their face and no other basis exists to indicate that privilege does not apply.

(iii)       Leave to adduce further evidence – to be ruled on at trial – directions given that further evidence be filed and served by 31 May 2007.

(iv)       Admissibility of a document in the applicant’s possession said by the respondents to be privileged and therefore inadmissible – ruling deferred – any issue of waiver of privilege and admissibility can be addressed at the hearing.

(v)        Issue of subpoenas to four individuals – leave granted in part – as to two persons insufficient reason shown for a subpoena to be issued, as to two other persons leave granted ‘out of an abundance of precaution’.

4                     The present application is for leave to appeal against the rulings I have identified in (i) and (ii) refusing leave to join additional individual respondents and the Commonwealth of Australia and against the decision to uphold claims of legal professional privilege. 

5                     The orders which Mr Dunstan wishes to seek on appeal, if granted leave, are as follows:

‘3.1      Leave is granted to amend the AD(JR) Act application to review the conduct of ERIN HOLLAND.

3.2       Leave is granted to amend the AD(JR) Act application to review the decisions of BARBARA BENSON.

3.3       The claims of legal professional advice privilege of the Commonwealth are set aside.

3.4       Leave is granted for filing an amended application, adding BREACH OF CONTRACT, and joining the Commonwealth of Australia as a respondent, or

3.4.1    In the alternative to 3.4; A direction that the said amendment to the application and joinder may be made without leave, pursuant to Order 11, rule 7.’

6                     When leave to appeal against an interlocutory decision is under consideration it is normal to make a distinction between an interlocutory decision on a point of practice or procedure and an interlocutory judgment which has the effect of finally determining an issue between parties to the litigation (see Ex parte Bucknell (1936) 56 CLR 221 at 225-226 and Yap v Granich & Associates [2001] FCA 1735).

7                     A grant of leave to appeal against an interlocutory decision involves the exercise of a judicial discretion.  In most cases the exercise of that discretion should be guided by the principle distilled in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 – namely, ‘whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong’.

8                     So far as the joinder of additional parties is sought it is necessary to deal first with the application to join two individual respondents and then the application which is made to join the Commonwealth of Australia and at the same time give leave to raise a separate cause of action against the Commonwealth.

9                     One of the matters which was resolved in Mr Dunstan’s favour was the grant of leave to issue a subpoena to Ms Holland and to Ms Benson to give evidence in the pending proceedings.  His earlier Notice of Motion seeking leave to join each of them as a party to the proceedings posed, as an alternative to that course, that leave be granted to issue a subpoena against each of them.  At the hearing before Mansfield J on 4 May 2007 he made it clear that remained his position.  Mansfield J’s grant of leave to issue subpoenas disposes of this issue.  There is no matter raised before Mansfield J left to agitate on appeal so far as Ms Holland and Ms Benson are concerned.

10                  In the proceedings before me, Mr Dunstan explained that if they were joined as parties to the proceedings, he thought they would be obliged each to file affidavits which he might, in some fashion or other, be able to use in the preparation of his case.  In my view, this explanation affords no reason to depart from the course which his Honour took. 

11                  The application to amend the proceedings to commence a case of action against the Commonwealth of Australia raises different issues.  Mansfield J rejected the application because, on its face, an independent cause of action was propounded which might, more conveniently, proceed in different proceedings.  I see no basis to doubt the correctness of that assessment.  Moreover, it appears clear from what Mr Dunstan said at the hearing before Mansfield J that although he proposed to amend his application to add a common law count of breach of contract against the Commonwealth in fact he wishes, rather, to suggest that some other persons had acted to attempt to induce a breach of his contract of employment with the Commonwealth.  Any such cause of action would be a different cause of action from the breach of contract that he suggests he wishes to raise in the proceedings.

12                  This added confusion and probable contradiction provides an added reason why, in my view, there is no sufficiently arguable case to be ventilated on appeal against the ruling made by Mansfield J not to permit the Commonwealth to be added as a party. 

13                  Mr Dunstan also suggests that he may amend his existing application to raise a cause of action against the Commonwealth under O 11 r 7 of the Federal Court Rules which provides:

‘A party may plead a fact or matter that has occurred or arisen since the commencement of the proceeding.’

14                  Order 11 concerns the amendment of pleadings.  An application is not a pleading (see Order 1, rule 4).  Order 11 does not seem to me to have any bearing on the present issue.

15                  That leaves for consideration the question of access to documents over which a claim of privilege has been made.  Mansfield J dealt with that issue as follows:

‘The second issue concerns the request of Mr Dunstan to have access to privileged documents.  The privileged documents are described in Schedules 2 and 3 of the list of documents filed by the respondents on 27 March 2007.  There is nothing in the material before me to indicate that the description of those documents is inaccurate.  On their face, they are clearly privileged.  The decision of O'Reilly v Commissioner of State Bank of Victoria, (1982) 44 ALR 27, does not provide any foundation to direct the discovery of privileged documents.  The discussion in that case to which my attention was drawn by Mr Dunstan concerned a discussion as to the extent to which legal professional privilege may have been abrogated by the operation of s 264 of the Income Tax Assessment Act 1936 (Cth), and a discussion as to the extent to which legal professional privilege applied in respect of non-curial proceedings.  Neither of those things is applicable here.’

16                  I have examined the list of documents in respect of which privilege is claimed and also looked at O’Reilly v The Commissioners of the State Bank of Victoria (1982) 153 CLR 1.  I can see no basis for an argument on appeal that his Honour erred in the ruling that he made having regard to the matters which Mr Dunstan submitted to his Honour at the time.

17                  Before me, however, Mr Dunstan sought to argue the matter in a different way.  He referred me to an affidavit affirmed by John Neville Higham and filed on 9 March 2007.  He referred, in particular, to paragraph 82 of the affidavit, although it is necessary to make reference to one or two additional paragraphs. 

18                  In paragraph 80, Mr Higham referred to a view which he had formed:

‘…that it was appropriate to charge Mr Dunstan with misconduct under the Public Service Act.’

19                  Paragraph 82 refers to the factual material upon which Mr Higham said his decision was based.  Paragraph 83 confirmed that his reasons were as set out in a letter to Mr Dunstan from a Mr Burslem of the Australian Government Solicitor.  He referred, in particular, to paragraph 4 of the letter.  Mr Burslem’s letter was attached to the affidavit as annexure G.  In paragraph 4 of the letter Mr Burslem set out in point form 13 matters to which Mr Higham had regard in making his decision.  Finally, as a 14^th element, Mr Burslem said:

‘Mr Higham also took into account legal advice.’

20                  Although Mr Dunstan referred to this same passage in Mr Burslem’s letter as attached to Mr Higham’s affidavit in the proceedings before Mansfield J on 4 May 2007, he did not attribute the same significance to it as he did before me.  His explanation was that he was not then aware of the principle of implied waiver of privilege which, in his view, might be applied to this passage might be applied.  It may be noted that Mr Higham did not disclose the content of any legal advice to which he paid regard, and nor did he identify, by description date or otherwise, from whom any advice was provided or in what form.

21                  Mr Dunstan’s submission was that, having regard to the passage which I have quoted, he was entitled to access to all of the documents over which privilege had been claimed.  In my view this submission should not be accepted and affords no reason why leave to appeal in the present case should be granted.  The passage to which Mr Dunstan refers and upon which he relies does not appear to me to waive privilege in the content of the advice to which Mr Higham said he had regard.

22                  The decisions in respect of which leave to appeal is sought are decisions on points of practice or procedure.  None of them finally determine adversely to Mr Dunstan any legal right or issue.  I am not persuaded that there is a sufficiently arguable case to warrant their reconsideration in advance of the hearing of the main proceedings, that any injustice would result to Mr Dunstan if leave was refused. 

23                  The application for leave to appeal is refused.  I order that the applicant for leave to appeal pay the costs of the respondent to be taxed, if not agreed.

Associate:

Dated:         6 June 2007