Federal Court of Australia
Dunstan v Orr (No 2) [2023] FCA 1536
ORDERS
Applicant | ||
AND: | First Respondent JOHN HIGHAM Second Respondent JOHN GROWDER Third Respondent COMMONWEALTH OF AUSTRALIA Fourth Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to s 31A of Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered in the respondents’ favour against the applicant in respect of the whole of this proceeding.
2. To the extent that it is necessary to do so, prayers 4, 5 and 6 of the applicant’s interlocutory application filed on 20 July 2022 be dismissed.
3. The applicant’s interlocutory application filed on 8 June 2022 be dismissed.
4. The applicant pay the respondents’ costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WIGNEY J:
1 This is the latest in a long and tortuous series of proceedings commenced by Mr Colin Dunstan that relate back to his suspension from duty as an officer of the Australian Taxation Office (ATO) way back in July 1997. In this proceeding, Mr Dunstan alleges, in essence, that the Commonwealth is liable to him in the tort of negligence because the officers who were involved in the events that led to his suspension gave false evidence and concealed documents in the previous proceedings that were determined adversely to him. He also claims, or appears to claim, that the judgment in the first of those previous proceedings was procured by fraud and should be set aside.
2 The respondents to the present proceeding, being the Commonwealth and three of the officers who Mr Dunstan alleges gave false evidence in the previous proceedings concerning his suspension, seek to have summary judgment entered in their favour, or to have Mr Dunstan’s pleading struck out. They contend that Mr Dunstan has no reasonable prospect of successfully prosecuting the proceeding, that no reasonable cause of action is disclosed, that Mr Dunstan is estopped from raising the principal claims and allegations that underly his causes of action and that the proceeding is otherwise an abuse of process.
3 For the reasons that follow, it is appropriate to enter summary judgment in favour of the respondents and against Mr Dunstan. Indeed, it would be an affront to the administration of justice to permit Mr Dunstan to pursue the proceeding any further. In commencing and prosecuting the proceeding, Mr Dunstan effectively seeks to rake over the coals of litigation that was determined adversely to him many years ago concerning events which occurred over 25 years ago. His pleadings, evidence and submissions do little more than reagitate, rehash or repackage serious allegations of fraud that were categorically rejected in the prior litigation in circumstances where nothing of substance has changed and no material fresh facts have emerged. There is, in any event, no sound or reasonable legal or factual basis for the pleaded causes of action. The proceeding is doomed to fail.
FACTUAL BACKGROUND TO MR DUNSTAN’S CLAIMS
4 Following is a short summary of the factual background to Mr Dunstan’s claims.
5 Mr Dunstan commenced employment with the Commonwealth Public Service in 1975. By 1987 he occupied the position of Assistant Director, Database Services at the ATO.
6 In 1990, Mr Dunstan commenced an ill-fated relationship with another ATO employee. The breakdown of that relationship in 1992 spawned a number of complaints and in due course proceedings. Mr Dunstan lodged a complaint concerning the actions of certain ATO officers with the Human Rights and Equal Opportunity Commission (HREOC). One of the ATO officers who was the subject of that complaint was Mr John Growder, who was Mr Dunstan’s supervisor. Mr Growder is the third respondent in this proceeding. When HREOC decided not to inquire into that complaint, Mr Dunstan commenced judicial review proceedings against HREOC in this Court in April 1997. Mr Growder was also named as a respondent in that proceeding. That proceeding was eventually heard and dismissed in 2005: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885.
7 Mr Dunstan also commenced a private prosecution against Mr Growder and another ATO officer in April 1997. The Commonwealth Director of Public Prosecutions eventually took control of that prosecution and in August 1998 the charges were dismissed after the Director declined to proceed.
8 Mr Dunstan’s proceedings against HREOC and his private prosecution are not directly relevant to the current proceeding. They are, however, indirectly relevant. As will be seen, Mr Growder was involved in the events that culminated in Mr Dunstan’s suspension from duty. In later proceedings concerning his suspension, which are directly relevant to this proceeding, Mr Dunstan alleged that Mr Growder and other officers who were involved in the decision to suspend him were improperly motivated by a desire to retaliate against Mr Dunstan for commencing the HREOC and private prosecution proceedings against Mr Growder.
9 In May 1997, Mr Growder presented information concerning Mr Dunstan to Ms Robyn Orr, who was then Acting Assistant Commissioner, Human Resources at the ATO. Ms Orr is the first respondent in this proceeding. The information presented to Ms Orr concerned what Mr Growder believed to be “systems violations” by Mr Dunstan in respect of his access to the ATO’s mainframe computer system. Mr Growder expressed the opinion that the systems violations were such that Mr Dunstan had failed to fulfil his duties as an officer.
10 On 4 June 1997, Mr Dunstan met with Mr Growder and Ms Orr concerning the alleged systems violations. Dr John Molineux, who held the office of Senior Consultant, Human Resources at the ATO, attended and took notes at the meeting. Mr Growder asked Mr Dunstan about the alleged systems violations and Mr Dunstan answered, or at least purported to answer, those questions. Mr Growder and Ms Orr considered that Mr Dunstan’s answers were unsatisfactory and as a result Ms Orr suspended Mr Dunstan from duty under the Public Service Act 1922 (Cth).
11 On 26 June 1997, Mr John Higham was appointed pursuant to s 61(2) of the Public Service Act to decide whether Mr Dunstan should be charged with failing to fulfil his duty as an officer of the Commonwealth Public Service having regard to the alleged systems violations. Mr Higham was then an Assistant Commissioner at the ATO. Mr Higham is the second respondent in this proceeding.
12 Mr Highham subsequently collected information and communicated with Mr Dunstan concerning the alleged systems violations. He then prepared a draft report which was dated 11 July 1997. The draft report stated that Mr Higham had concluded that there were sufficient grounds to support a charge that misconduct may have been committed by Mr Dunstan and that Mr Dunstan may have attempted to breach security. The draft report also stated that, while Mr Higham had considered counselling to be an option, in light of the seriousness of the matter he proposed to lay charges against Mr Dunstan for improper conduct as an officer.
13 Mr Higham subsequently discussed his draft report with a solicitor working for the Australian Government Solicitor, Mr Tony Burslem. Mr Burslem advised Mr Higham that in his opinion it was not open to Mr Higham to charge Mr Dunstan with misconduct. In Mr Burslem’s opinion, there was insufficient information about Mr Dunstan’s motivation in attempting to access files on the ATO computer system to support the proposed charges.
14 Following his receipt of that legal advice Mr Higham sent a minute to Mr Growder and another ATO officer concerning the charging of Mr Dunstan. That minute, which was dated 29 July 1997, referred to and attached a copy of Mr Higham’s draft report and referred to the advice that Mr Higham had received from Mr Burslem. After referring to that advice, the minute stated: “I therefore do not propose to charge Mr Dunstan”.
15 As will be seen, Mr Higham’s minute was a critical document in at least one of the subsequent proceedings commenced by Mr Dunstan. Mr Dunstan’s claims in this proceeding also hinge to a large extent on an allegation that the content of this minute was concealed from him.
16 Returning to the chronology of events in 1997, it would appear that officers of the ATO who became aware of Mr Burslem’s advice believed that it was wrong. Legal advice was accordingly sought from a barrister.
17 On 15 August 1997, Ms Orr sent a minute to a senior officer in the ATO which set out the options available to the ATO in dealing with Mr Dunstan. The minute concluded by making various recommendations. One of the recommendations was that the ATO continue with the disciplinary proceedings which had been commenced. That recommendation was said to involve Mr Higham “reconsidering his options having regard to the new legal advice” which was “expected shortly”. As will be seen, Ms Orr’s minute also featured fairly prominently in some of the litigation which followed.
18 On 21 August 1997, the barrister who had been retained by the ATO advised the ATO that Mr Burslem’s advice was wrong and that there was sufficient evidence to charge Mr Dunstan.
19 On 13 October 1997, Mr Higham decided to charge Mr Dunstan. Two charges were laid in due course. There exists a final version of Mr Higham’s report which is in the same terms as the draft report save that the word “draft” is removed and the document is not dated. As will be seen, Mr Dunstan now alleges that Mr Higham did not finalise his report in 1997, but rather prepared it in 2007 so as to mislead the court in proceedings commenced by Mr Dunstan that were on foot at the time.
20 On 28 July 1998, Mr Dunstan was provided with a statement of reasons in respect of Mr Higham’s decision. The statement of reasons was in similar terms to Mr Higham’s report.
21 On 4 December 1998, Mr Dunstan was arrested and charged with offences relating to the sending of explosive devices through the post to several people, including Mr Higham and Mr Growder. On 26 April 2000, Mr Dunstan was convicted of and sentenced to imprisonment for 11 years with a non-parole period of 5 years.
22 On 21 May 2001, Mr Dunstan’s employment under the Public Service Act was terminated by reason of his conviction.
23 Mr Dunstan was released from prison on parole on 2 January 2008.
THE EARLIER PROCEEDINGS INSTITUTED BY MR DUNSTAN
24 Mr Dunstan has prosecuted numerous proceedings concerning the events and circumstances that culminated in the suspension of his employment at the ATO. Reference has already been made to the judicial review proceedings against HREOC and the private prosecution that Mr Dunstan commenced against Mr Growder and another. It is unnecessary, at least for present purposes, to refer to many of the other proceedings commenced by Mr Dunstan. There are, however, two that are of particular relevance and importance to this proceeding and the respondents’ application for summary judgment. The findings made in those two proceedings are of considerable importance in the current application because the respondents claim that they preclude Mr Dunstan from reagitating most, if not all, of the allegations that are central to his causes of action in this proceeding.
The ADJR Act proceeding
25 In 1998, Mr Dunstan commenced a proceeding in this Court in which he sought relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in respect of three decisions made, or allegedly made, under the Public Service Act which related or led to his suspension from duty. The three decisions challenged by Mr Dunstan were: first, Mr Growder’s decision made on 4 June 1997 to tell Ms Orr under s 63B of the Public Service Act that he was of the opinion that Mr Dunstan may have failed to fulfil his duty as an officer; second, Ms Orr’s decision on 4 June 1997 to suspend Mr Dunstan from duty under s 63B of the Public Service Act; and third, Mr Higham’s decision on 13 October 1997 to charge Mr Dunstan under s 61(2) of the Public Service Act with failing to fulfill his duty as an officer. Ms Orr, Mr Higham and Mr Growder were each named as respondents to the proceeding. The Commonwealth was not named as a respondent.
26 The proceeding was eventually heard by Besanko J in July 2007 and dismissed with costs on 25 January 2008: Dunstan v Orr (2008) 217 FCR 559; [2008] FCA 31 (or, the ADJR Act proceeding).
27 Justice Besanko held that the first decision was not a decision to which the ADJR Act applied and that, in any event, Mr Dunstan’s three grounds of challenge to the decision had no merit. His Honour found, contrary to Mr Dunstan’s contentions, that the rules of natural justice did not apply to the alleged decision and there was in any event no breach of those rules. His Honour also found that Mr Growder did not take into account any irrelevant considerations and that, contrary to Mr Dunstan’s contention, there was evidence or other material to justify the making of the decision.
28 In relation to the second decision, while Besanko J accepted that the decision was one to which the ADJR Act applied, his Honour held that Mr Dunstan had failed to make out his grounds of challenge to that decision. His Honour concluded that, contrary to Mr Dunstan’s contentions, there was no breach of the rules of natural justice, s 63B of the Public Service Act had been complied with and Ms Orr had not improperly exercised her power by acting at the behest of Mr Growder.
29 As for the third decision, Besanko J held that Mr Dunstan had not made out any of his grounds of challenge. His Honour concluded that, contrary to Mr Dunstan’s contentions: the rules of natural justice did not apply to the third decision and there had been no breach in any event; the decision was made “as soon as practicable” as required by s 61(2) of the Public Service Act and there was no unreasonable delay in making the decision; Mr Higham did not take into account any irrelevant considerations or fail to take into account any relevant considerations; and there was evidence or other material to justify the making of the decision, or at least Mr Dunstan had not established to the contrary.
30 Mr Dunstan filed an appeal from the judgment of Besanko J. In 2008, however, that appeal was dismissed because Mr Dunstan failed to comply with orders in respect of the prosecution of the appeal.
31 It is important to emphasise that each of Ms Orr, Mr Higham and Mr Growder gave evidence in the ADJR Act proceeding. Dr Molineux also gave evidence. Mr Dunstan extensively cross-examined each of Ms Orr, Mr Higham, Mr Growder and Dr Molineux and sought to impugn their credibility. He ultimately submitted to Besanko J that important aspects of the evidence of those parties and witnesses should not be accepted. It is apparent that the contention that formed the basis of much of Mr Dunstan’s cross-examination of the witnesses was that Mr Growder’s actions were improper because he was motivated by a desire to retaliate against Mr Dunstan for commencing the HREOC proceeding and the private prosecution. Mr Dunstan also alleged that the subsequent actions and decisions of Ms Orr, Dr Molineux and Mr Higham were infected by that improper purpose against him. Without putting too fine a point on it, the effect of what Mr Dunstan put to Mr Growder, Ms Orr, Dr Molineux and Mr Higham was that they had unlawfully or improperly conspired to have his employment with the ATO terminated. While Mr Dunstan sought to impugn the credibility and reliability of the evidence given by each of the witnesses on the basis of alleged inconsistencies, it is also readily apparent that he contended, directly or indirectly, that the evidence they gave in the proceeding was false and deliberately so.
32 Mr Dunstan’s challenges to the evidence of Ms Orr, Mr Higham, Mr Growder and Dr Molineux were all rejected by Besanko J. His Honour accepted the evidence of each of those witnesses and held that they were honest and straightforward witnesses. His Honour also expressly rejected Mr Dunstan’s contention that they were motivated by a desire to retaliate or “get” him as a result of the earlier proceedings and held that, to the extent that there were any inconsistencies in the evidence, those inconsistencies could be explained on the basis that the relevant events had occurred many years ago.
The ACT Supreme Court proceeding
33 In 2010, after he had been released from prison, Mr Dunstan instituted a proceeding in the Supreme Court of the Australian Capital Territory (ACT Supreme Court) against Mr Higham, Mr Growder, Ms Orr, and two other ATO officers, Mr Richard Highfield and Mr Geoff Seymour. The Commonwealth was also named as a defendant to the proceeding.
34 Mr Dunstan advanced a number of serious claims and allegations against the respondents to the proceeding.
35 First, he alleged misfeasance in public office by Mr Growder, Mr Highfield, Ms Orr, Mr Seymour and Mr Higham on the basis that they had sought to have Mr Dunstan’s employment terminated outside the scope of the Public Service Act. The main allegation that formed the basis of that claim was that Mr Higham had made a decision on 29 July 1997 not to charge Mr Dunstan and that the subsequent decision to charge him on 13 October 1997 was therefore ultra vires the Public Service Act. Mr Dunstan alleged that Mr Growder, Mr Highfield, Ms Orr, and Mr Seymour induced Mr Higham to exceed his lawful authority in that regard and acted in bad faith.
36 Second, Mr Dunstan alleged that the Commonwealth breached its contract of employment with him by failing to adhere to the Public Service Act. The allegation that formed the basis of that claim was essentially the same as that which formed the basis of the misfeasance claim. Mr Dunstan alleged, in essence, that: Mr Higham had decided not to charge Mr Dunstan on 29 July 1997; Mr Higham acted beyond his lawful authority in subsequently deciding to charge him on 13 October 1997; Mr Growder, Mr Highfield, Ms Orr and Mr Seymour had induced Mr Higham to take that course; and Mr Growder, Mr Highfield, Ms Orr, Mr Seymour and Mr Higham therefore induced the Commonwealth to breach its employment contract with Mr Dunstan.
37 Third, Mr Dunstan alleged that Mr Higham, Ms Orr, Mr Highfield and Mr Seymour had conspired to injure Mr Dunstan in his employment by unlawful means. Mr Dunstan’s conspiracy claim appeared to be based on the terms of Ms Orr’s minute dated 15 August 1997.
38 Fourth, Mr Dunstan claimed that Mr Growder, Ms Orr and Mr Highfield had defamed him by imputing that he had improperly accessed the ATO computer system.
39 This proceeding was heard by Burns J in the ACT Supreme Court over eleven days in 2013. Mr Dunstan was represented by counsel. On 27 August 2014, Burns J dismissed each of Mr Dunstan’s claims and ordered him to pay the defendants’ costs: Dunstan v Higham [2014] ACTSC 206.
40 In dismissing Mr Dunstan’s case, Burns J held that each of Mr Dunstan’s causes of action or claims were statute barred and that the factual allegations underlying each of the claims were in any event unmeritorious.
41 One of the key findings made by Burns J was to reject Mr Dunstan’s claim that Mr Higham had decided not to charge Mr Dunstan on 29 July 1997.
42 Mr Dunstan’s claim that Mr Higham had decided not to charge him on 29 July 1997 was based on the terms of the minute that Mr Higham sent to Mr Growder on 29 July 1997. Mr Higham, however, gave evidence that he wrote the minute because he was concerned about the legal advice he had received and that he had not decided not to charge Mr Dunstan at that time. Mr Higham’s evidence was, in effect, that when he stated in his minute that he did not propose to charge Mr Dunstan, he was only expressing his intention at that point in time based on the legal advice he had received. He had not made any final decision to that effect. Mr Higham was cross-examined and his evidence was criticised by Mr Dunstan on numerous grounds. One of the main criticisms was that, in his evidence in the ADJR Act proceeding, Mr Higham had intended to mislead Besanko J concerning the existence of the minute. Justice Burns, however, rejected the criticisms of Mr Higham’s evidence and accepted his evidence that the minute he wrote on 29 July 1997 was not intended to be a final decision not to charge Mr Dunstan.
43 Justice Burns’s finding that Mr Higham did not make, and did not intend to make, a final decision not to charge Mr Dunstan on 29 July 1997 was also central to his Honour’s conclusion that each of Mr Dunstan’s claims was statute barred. Mr Dunstan conceded that each of his causes of action had accrued outside the applicable limitation period in the Limitation Act 1985 (ACT), but claimed that there had been a “postponement of the bar” pursuant to s 33 of the Limitation Act because a fact relevant to the causes of action had been concealed from him. That concealed fact was said to be the existence of Mr Higham’s minute dated 29 July 1997. Justice Burns concluded, however, that because that minute was not, and was not intended to be, a final decision by Mr Higham not to charge Mr Dunstan, the existence of the minute was not a fact relevant to Mr Dunstan’s causes of action.
44 While Burns J concluded that Mr Dunstan’s claims were statute barred, his Honour nevertheless made a number of other critical findings that were fatal to Mr Dunstan’s claims. First, in relation to the claim of misfeasance in public office, his Honour found that the defendants did not attempt to have Mr Dunstan’s employment terminated outside the scope of the Public Service Act and did not act in bad faith in their dealings with Mr Dunstan. Rather, his Honour found that they had acted on the basis of legitimate concerns about Mr Dunstan’s unauthorised access to the ATO’s computer system and had acted in accordance with the Public Service Act. Second, in relation to the conspiracy claim, Burns J held that there was nothing in the terms of Ms Orr’s minute of 15 August 1997 which provided any evidence of a conspiracy against Mr Dunstan. Third, in relation to Mr Dunstan’s cause of action in defamation, Burns J held that the statements about which Mr Dunstan complained were made on an occasion of qualified privilege and that the cause of action failed.
45 Mr Dunstan lodged an appeal against the judgment of Burns J. That appeal was heard in May 2015. Mr Dunstan was represented by senior and junior counsel. On 24 June 2016 the Court of Appeal of the ACT Supreme Court (ACT Court of Appeal) dismissed Mr Dunstan’s appeal with costs: Dunstan v Higham (2016) 310 FLR 58; [2016] ACTCA 20 (Dunstan v Higham CA).
46 Mr Dunstan’s main argument on appeal was that Burns J had erred in concluding that Mr Higham’s minute dated 29 July 1997 was not, or did not constitute, a decision by Mr Higham not to charge Mr Dunstan. It was submitted on Mr Dunstan’s behalf that Burns J should have decided whether the minute constituted a decision not to charge Mr Dunstan objectively and having regard to the terms of the minute alone, without regard to Mr Higham’s evidence concerning his subjective belief or intention. It was also submitted that Burns J should in any event have rejected Mr Higham’s evidence concerning his intention or belief for a number of reasons.
47 The ACT Court of Appeal rejected Mr Dunstan’s submissions in respect of the finding by Burns J that Mr Higham had not finally decided that Mr Dunstan would not be charged. The court held that, while the terms of Mr Higham’s minute were consistent with Mr Higham having made a decision not to charge Mr Dunstan, Mr Higham’s evidence to the contrary was plausible and Burns J did not err in accepting it.
48 It is important to emphasise a number of arguments that were advanced on Mr Dunstan’s behalf before the ACT Court of Appeal in support of the proposition that Burns J should have rejected Mr Higham’s evidence.
49 First, Mr Dunstan submitted that Mr Higham had given false evidence before Besanko J concerning the existence of his minute dated 29 July 1997. The ACT Court of Appeal rejected that argument, noting that the existence and authorship of the minute had been disclosed in the list of documents that had been filed on behalf of the respondents in the proceeding before Besanko J, though a claim of privilege had been made in respect of its contents. Mr Dunstan had cross-examined Mr Higham about the minute, apparently based on its description in the list of documents. The ACT Court of Appeal held, however, that the cross-examination of Mr Higham concerning the minute was confusing and that Mr Higham was accordingly confused about what document he was being asked about: Dunstan v Higham CA at [120]. The court also held that it was unsurprising, given the effluxion of time, that Mr Higham could not recall the terms of the minute merely from its description in the list of documents: Dunstan v Higham CA at [121].
50 Second, Mr Dunstan argued that Mr Higham’s evidence should not have been accepted because there was an illegitimate plan between him and some or all of the other individual defendants to have Mr Dunstan charged with misconduct in order to “get rid” of him from the public service. Mr Dunstan’s submissions in that regard focussed on what he contended were inconsistencies or conflicts in the evidence of the defendants, including Mr Growder and Ms Orr. The ACT Court of Appeal rejected those submissions and held that there was no error in Burns J’s assessment of the credibility of the witnesses, or his Honour’s rejection of the allegation that there was a conspiracy against Mr Dunstan.
51 Third, Mr Dunstan argued that Mr Higham and some or all of the other individual defendants deliberately concealed Mr Higham’s minute dated 29 July 1997 in order to cover up their plan to have Mr Dunstan’s employment terminated. That argument was again rejected by the ACT Court of Appeal. The court found that it was reasonable for Burns J to accept Mr Higham’s evidence and that Mr Dunstan had not demonstrated his Honour erred in that regard.
52 Fourth, Mr Dunstan again argued that the existence of Mr Higham’s minute had been deliberately concealed in the proceeding before Besanko J. While the existence of the minute was disclosed in the defendants’ list of documents, Mr Dunstan argued that the minute was concealed by the defendants because they falsely claimed legal professional privilege in respect of the whole of the minute, as opposed to the single paragraph of the minute that contained or referred to legal advice. The solicitor who acted for and advised the defendants in respect of the privilege claim gave evidence and was cross-examined in the proceeding before Burns J. The solicitor maintained that he believed that there was a proper basis for a claim of privilege over the whole document. The ACT Court of Appeal held that the solicitor was wrong in his belief that legal professional privilege could and should be claimed in respect of the whole minute, but that there was no basis to conclude that he did not genuinely believe that there was a proper basis for the privilege claim. It also held that Mr Dunstan had not demonstrated that any of the defendants acted improperly in claiming legal professional privilege over the whole document.
THE CURRENT PROCEEDING
53 Mr Dunstan commenced the current proceeding by filing an originating application and concise statement on 10 November 2021. The originating application and concise statement were extremely confused and confusing. Among other things, the concise statement did not clearly disclose the causes of action and material facts relied on by Mr Dunstan. Mr Dunstan was accordingly ordered to file a statement of claim. He did so, however the statement of claim did not greatly assist in explaining and delineating the nature and scope of Mr Dunstan’s case. It was prolix, convoluted, ambiguous and inconsistent. The precise nature of Mr Dunstan’s legal and factual case against each of the named respondents remained less than clear. The situation was made worse by the fact that Mr Dunstan filed an amended statement of claim (ASOC) at the hearing of the summary dismissal application. That amended pleading regrettably does not greatly assist in delineating the legal and factual bases of Mr Dunstan’s case against the respondents. Nor do the affidavits and written submissions that Mr Dunstan has filed and relied upon in opposition to the application for summary judgment.
54 Overall, the state of the documentation filed by Mr Dunstan in this proceeding is less than satisfactory. That is so even taking into account the fact that he is not legally represented. The situation is made all the worse having regard to the seriousness of the allegations that Mr Dunstan levels against the respondents and their former legal advisers, which include serious allegations of fraud, fraudulent concealment and misleading the court. What follows is an attempt to make some sense of what Mr Dunstan has pleaded or otherwise sought to explain in his affidavits and submissions.
55 The respondents to Mr Dunstan’s claim are Ms Orr, Mr Higham, Mr Growder and the Commonwealth, or possibly the Commissioner of Taxation.
56 There would appear to be two pleaded causes of action. The first is a cause of action in negligence against the Commonwealth. There is no claim in negligence against the other respondents. The second cause of action appears to amount to a claim that the judgment of Besanko J in the ADJR Act proceeding was procured by fraud or fraudulent concealment and should be set aside.
57 The cause of action in negligence against the Commonwealth would appear to be based on the following pleaded elements.
58 First, the Commonwealth owed Mr Dunstan a duty of care. That duty of care was said to have a number of legal or factual sources: first, the common law; second, Mr Dunstan’s employment pursuant to the Public Service Act; third, the statutory duty of solicitors acting for the Commonwealth; and fourth, the statutory duty of solicitors pursuant to the Legal Profession (Solicitors) Conduct Rules under the Legal Profession Act 2006 (ACT). The precise nature and scope of the alleged duty of care is unclear, though it may perhaps be gleaned from the allegations concerning the alleged breach of the duty of care.
59 Second, the Commonwealth is alleged to have breached its duty of care to Mr Dunstan in various ways, including: first, by reason of its officers giving false evidence in the ADJR Act proceeding before Besanko J and in the ACT Supreme Court proceeding before Burns J; second, by fraudulently concealing and failing to discover material evidence in those proceedings; third, by reason of its legal advisers failing to inform this Court, in the ADJR proceeding before Besanko J, and the ACT Supreme Court in the proceeding before Burns J, that its officers had lied and suppressed material evidence in those proceedings; and fourth, by its legal advisers not disclosing, or fraudulently concealing, various documents in the proceedings before Besanko J and Burns J.
60 Third, the Commonwealth’s breach of its duty is alleged to have caused Mr Dunstan loss or damage. That loss or damage was alleged to be: Mr Dunstan’s liability for costs in the proceedings before Besanko J and Burns J; the costs and disbursements incurred by Mr Dunstan in the proceedings before Burns J; and economic loss and damage for psychological harm.
61 As for the second cause of action, the factual allegations that underpin Mr Dunstan’s claim that the judgment of Besanko J was procured by fraud appear to overlap to a considerable extent with the factual allegations which are said to support the negligence claim. There appears, in summary, to be two elements to Mr Dunstan’s claim of fraud.
62 The first element of the fraud claim would appear to be that each of Ms Orr, Mr Growder, Mr Higham and Dr Moliuneux gave deliberately false and fraudulent evidence before Besanko J in a number of respects. The specific allegations concerning false evidence would appear to be as follows: first, Mr Growder, Dr Molineux and Ms Orr gave false evidence concerning Mr Growder’s motive for commencing his investigation into Mr Dunstan’s alleged systems violations; second, Mr Higham gave false evidence about whether he initially decided not to charge Mr Dunstan, the timing of his decision to charge Mr Dunstan and the date on which he made his final report; and third, Ms Orr gave false evidence concerning her knowledge and involvement in the events following her decision to suspend Mr Dunstan.
63 The second element of the fraud claim is less than clear. It appears to be that the Commonwealth was recklessly indifferent as to whether its legal advisers in the proceedings before Besanko J and Burns J were recklessly indifferent in respect of its discovery of certain documents. The allegations concerning the conduct of the Commonwealth and its legal advisers appears to centre on alleged failures to discover documents in the proceeding before Besanko J (though it may be noted that the Commonwealth was not a party to that litigation), allegations concerning false claims of legal professional privilege in respect of certain documents, and an alleged failure to inform the court that Mr Growder, Ms Orr and Mr Higham had lied and suppressed evidence in the proceeding before Besanko J. In relation to the last mentioned allegation, even assuming, for the sake of argument, that Mr Dunstan had or has an even remotely arguable case that the witnesses did in fact lie, it is far from clear how Mr Dunstan alleges that the Commonwealth became aware that those witnesses had lied.
THE SUMMARY DISMISSAL AND STRIKE OUT APPLICATION
64 The respondents contend that summary judgment should be given against Mr Dunstan pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) because Mr Dunstan has no reasonable prospect of successfully prosecuting the proceeding, the documents filed by Mr Dunstan disclose no reasonable cause of action and the proceeding otherwise constitutes an abuse of process. The respondents relied on affidavit evidence from their solicitor which annexed or exhibited voluminous documentary evidence relating to the previous proceedings instituted by Mr Dunstan.
65 For his part, Mr Dunstan relied on six affidavits sworn by him, though the relevance of much of his affidavit evidence to the issues that arose in respect of the summary judgment application is difficult to fathom. A number of the affidavits dealt with issues that had arisen in respect of the case management of this proceeding, including Mr Dunstan’s claims and demands for the production of documents. One of the affidavits dealt with the production of a redacted copy of Dr Molineux’s notes in the course of the proceeding before Burns J, a topic that is addressed in more detail later in these reasons. At the hearing, Mr Dunstan also tendered, or sought to tender, seven large bundles of documents. I rejected the tender of those bundles of documents on the basis that I was not persuaded that any of the documents in the bundles were relevant to the issues that arose in relation to Mr Dunstan’s production application or the respondents’ summary dismissal application. I should also note that Mr Dunstan had not given either the Court or the respondents any, or any adequate, notice of his intention to tender those large bundles of documents.
66 The respondents’ submissions in support of summary judgment focussed primarily on Mr Dunstan’s pleaded cause of action in negligence against the Commonwealth, though the submissions also addressed the claim that the previous judgments were procured by fraud. The respondents submitted that there was no proper or reasonable basis upon which it could be said that the Commonwealth owed Mr Dunstan any duty of care in respect of the conduct of either the proceeding before Besanko J or the proceeding before Burns J. That alone was said to be a sufficient basis upon which to summarily dismiss this proceeding.
67 The respondents nevertheless contended that, even if there was a basis for finding that the Commonwealth owed Mr Dunstan a duty of care, Mr Dunstan had not demonstrated any reasonably arguable case that the Commonwealth had breached that duty of care. They advanced detailed submissions in support of that contention. The respondents submitted that the alleged breaches of the duty of care, which relied on serious allegations that Ms Orr, Mr Growder, Mr Higham and Dr Molineux had deliberately lied in the earlier proceedings and that the Commonwealth and the respondent’s legal advisers had falsely claimed legal professional privilege and failed to inform the court of material matters, were not maintainable on the pleaded facts. They also submitted that Mr Dunstan was estopped from raising those allegations as they had either been rejected in the earlier proceedings, or could and should have been raised in the earlier proceedings. Finally, the respondents submitted that the cause of action in negligence was statute barred.
68 The respondents’ submissions concerning Mr Dunstan’s claim that the judgment of Besanko J had been obtained by fraud centred on the contention that Mr Dunstan had not demonstrated that any fresh facts that were relevant and material to his claims had emerged since Besanko J handed down the judgment in 2008. The supposed fresh facts which had been identified by Mr Dunstan were either not facts, or were not material. The respondents also submitted that Mr Dunstan’s allegations of fraud, which were essentially the same as those relied on by him in support of his claim that the Commonwealth had breached its duty of care, were not maintainable and that Mr Dunstan was in any event estopped from reagitating those allegations.
69 The respondents also contended that, if the Court was not minded to enter summary judgment against Mr Dunstan, it should nonetheless strike out Mr Dunstan’s Amended Statement of Claim pursuant to r 16.21(1) of the Rules on the basis that it fails to disclose a reasonable cause of action and is otherwise an abuse of process.
70 Perhaps not surprisingly, Mr Dunstan submitted that summary judgment should not be entered against him. He maintained that he had a good arguable case against the respondents and that the Commonwealth had failed to establish, to the required standard, that his pleading did not disclose a reasonable cause of action or that he did not have any reasonable prospect of successfully prosecuting his claims. Mr Dunstan also maintained that there was nothing wrong with his pleading and it therefore should not be struck out.
71 Mr Dunstan’s specific arguments in response to the Commonwealth’s submissions are dealt with in context and in more detail later in these reasons, though it would be fair to say that Mr Dunstan’s submissions did not engage with many of the main arguments advanced by the respondents. It suffices at this point to note that Mr Dunstan asserted that he had discovered fresh facts or fresh evidence supporting his case in recent times and that issue estoppel, Anshun estoppel and the Limitation Act “offer no refuge for those who intentionally deceive Courts and opponents in litigation”. Of course, that argument would appear to be somewhat circular in the context of this case as it would depend on Mr Dunstan establishing, in the first place, that he had a reasonably arguable case that the respondents had intentionally deceived him and the courts who have entertained his claims in the past.
MR DUNSTAN’S PRODUCTION APPLICATION
72 Before addressing the respondents’ summary dismissal application, it is necessary to provide some reasons in respect of an interlocutory ruling that was made immediately before the hearing of that application. That ruling concerned an application by Mr Dunstan for the production by the respondents of certain documents.
73 The first document which Mr Dunstan claimed that the respondents should be ordered to produce was an unredacted copy of various pages of notes made by Dr Molineux back in 1997. Redacted copies of those notes had been produced on subpoena in the proceeding before Burns J. The notes had been redacted on the basis of legal professional privilege and relevance claims made by or on behalf of Dr Molineux and the defendants in the proceeding before Burns J. The privilege and relevance claims were upheld by Burns J and the notes remained in their redacted form. The redacted version of the notes was tendered in the course of the proceeding. It does not appear that the ruling by Burns J was the subject of any challenge on appeal.
74 In seeking the production of the unredacted version of the notes in this proceeding, Mr Dunstan effectively sought to circumvent the ruling that had been made by Burns J, despite the fact that the ruling had not been challenged on appeal. When pressed as to why the Court should revisit that ruling, Mr Dunstan submitted, in effect, that production of the notes was now justified on the basis of supposed new evidence of fraud. He also appeared to suggest that there were unresolved issues concerning the notes produced by Dr Molineux.
75 I do not propose to rehearse or unpack the elaborate and convoluted submissions advanced by Mr Dunstan in that regard. It suffices to note that Mr Dunstan was unable to point to any evidence, let alone new evidence, of fraud, or any unresolved issues concerning Dr Molineux’s notes, that amounted to anything more than mere conjecture, speculation or bare assertion. I was not persuaded that Mr Dunstan had demonstrated a proper or reasonable basis for the Court to revisit the unchallenged interlocutory ruling made by Burns J almost 10 years ago. Nor was I persuaded that Mr Dunstan had demonstrated a legitimate forensic purpose for requiring production of the unredacted version of the notes. The notes made by Dr Molineux are only fleetingly referred to in Mr Dunstan’s pleading and his apparent suggestion that the redacted parts of the notes might in some way assist his case again amounted to nothing beyond mere conjecture and speculation.
76 Much the same can be said in respect of the other documents production of which was sought by Mr Dunstan. While not strictly the subject of his interlocutory application, Mr Dunstan sought production of two documents which were identified in the list of documents filed by the respondents to the proceeding before Besanko J. Those documents were, however, the subject of a claim of legal professional privilege. They were described in the list of docuyments as “file note[s] made by Raymond Donaldson of the ATO” of in respect of separate conversations he had with with Mr Burslem and Mr Growder on 12 June 1997. The first conversation was said to relate to proceedings instituted in this Court by Mr Dunstan and the second was said to relate to “advice provided to the AGS and independent advice being sought concerning technical questions before considering the laying of charges”. The privilege claim in respect of the two file notes was upheld by Mansfield J, in an interlocutory judgment, on the basis that “on their face [the documents] are clearly privileged”: see Dunstan v Orr [2007] FCA 652 at [4]. There was apparently no challenge to that interlocutory judgment or the privilege claim generally when the proceeding was in due course heard by Besanko J.
77 Mr Dunstan sought production of the two file notes in this proceeding on the basis that, in his submission, the privilege claim in respect of them had been, or must have been, made in error because the content of the notes had been disclosed in a file note dated 18 June 1997, an unredacted copy of which was, so Mr Dunstan claimed, produced to him as long ago as 1999.
78 There were several difficulties with that argument. First, Mr Dunstan’s claim that the privilege claim was made in error and that the content of the two 12 June 1997 file notes was disclosed in the later note rose no higher than bare assertion and speculation. Second, if the content of the two 12 June 1997 notes had in fact been disclosed in the other note produced to Mr Dunstan in 1999, that is an issue he should have raised in opposition to the privilege claim in the proceeding before Besanko J. I was not persuaded that there was any sound or reasonable basis to revisit or go behind the previously unchallenged privilege claim. Third, and perhaps most fundamentally, Mr Dunstan failed to demonstrate any legitimate forensic purpose for requiring the production of the two file notes. Despite apparently knowing the contents of the file notes, Mr Dunstan was unable to articulate how they would support his case. They are not referred to in the pleadings and there was no other basis for believing that their content would somehow assist Mr Dunstan’s pleaded case in any way.
79 It was for those reasons that I rejected Mr Dunstan’s application for production at the hearing.
RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
80 The respondents’ application for summary judgment was brought under s 31A of the FCA Act and r 26.01 of the Rules. Their strike out application was brought under r 16.21 of the Rules.
81 Subsection 31A(2) of the FCA Act provides as follows:
(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
82 Rule 26.01 of the Rules is in the following terms:
(1) A party may apply to the Court for an order that judgment be given against another party because:
(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or
(b) the proceeding is frivolous or vexatious; or
(c) no reasonable cause of action is disclosed; or
(d) the proceeding is an abuse of the process of the Court; or
(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.
(2) The application must be accompanied by an affidavit stating:
(a) the grounds of the application; and
(b) the facts and circumstances relied on to support those grounds.
(3) The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application.
(4) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order.
(5) If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant’s claim, a respondent who has a cross‑claim against the applicant or some other party may:
(a) continue to prosecute the cross‑claim against the applicant or other party; and
(b) apply to the Court for an order staying execution on or enforcement of the judgment until the respondent’s cross‑claim is determined.
Note: See also section 31A of the Act.
83 Rule 16.21 of the Rules, which deals with striking out, provides as follows:
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
Relevant principles – Summary judgment
84 The relevant principles in relation to summary judgment or dismissal under s 31A of the FCA Act were considered by the High Court in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 and have been discussed in numerous judgments in this Court. They may be summarised as follows.
85 First, s 31A authorises summary disposition of proceedings “on a variety of bases under its general rubric” (that being, “no reasonable prospect of successfully prosecuting…”). Those bases include, but are not limited to: cases where the pleadings disclose no reasonable cause of action and their deficiency is incurable; cases in which there is unanswerable or unanswered evidence of a fact fatal to either the pleaded case or any case that might be propounded by permissible amendment; and the “longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’”: Spencer at [22] (per French CJ and Gummow J). It should be noted, in this context, that r 26.01 of the Rules expressly provides for summary judgment not only where there is no reasonable prospect of successfully prosecuting the proceeding, but also where the proceeding is frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceeding is an abuse of process. The meaning of “vexatious” in this context is considered later in the context of the principles relating to striking out pleadings.
86 Second, the power to summarily dismiss a proceeding is to be distinguished, in its application to deficient pleadings, from provisions such as r 16.21 of the Rules: Spencer at [23] (per French CJ and Gummow J). Where the evidence shows that a party may have a reasonable cause of action or reasonable prospects of success, but the party’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at [47], referred to in Spencer at [23]. That said, a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries at [47].
87 Third, “a proceeding need not be ‘hopeless’ or ‘bound to fail’ for it to have no reasonable prospect of success”: Spencer at [17] (per French CJ and Gummow J). The enquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52] (per Hayne, Crennan, Kiefel and Bell JJ).
88 Fourth, the “exercise of powers to summarily terminate proceedings must always be attended with caution”, whatever may be the basis upon which that disposition is sought: Spencer at [24] (per French CJ and Gummow J). It is not a power to be exercised lightly: Spencer at [60] (per Hayne, Crennan, Kiefel and Bell JJ). There must be a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [46], citing Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], referred to in Spencer at [24] (per French CJ and Gummow J).
89 While s 31A does not expressly refer to abuse of process as being a ground upon which summary judgment may be given, it is clear from Spencer that abuse of process is encompassed by the general rubric of “no reasonable prospect of successfully prosecuting”. Abuse of process is also specified as a ground upon which summary judgment may be entered in r 26.01(1)(d) of the Rules.
90 The concept of abuse of process is flexible and insusceptible of a formulation which comprises closed categories; it applies in any circumstances in which the court’s processes are used for an illegitimate purpose, or are used in a way which would be unjustifiably oppressive to a party, or would bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]; Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286; [1994] HCA 42. It is unnecessary to consider the many circumstances which may, or have been found to, amount to an abuse of process. It suffices to refer to one circumstance which is of particular relevance to this case.
91 The making of a claim or the raising of an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process, even where the earlier proceeding might not have given rise to an estoppel: Tomlinson at [26]; UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [43], [68]. The rationale underlying the application of the concept of abuse of process in this context is that there should be finality in litigation and that “a party should not be twice vexed in the same matter”: UBS AG at [66] (per Gageler J) referring to Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.
Relevant principles – Striking out
92 Rule 16.02 of the Rules provides, amongst other things, that a pleading must: be as brief as the nature of the case permits; identify the issues that the party wants the Court to resolve; state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against the party at trial, but not the evidence by which the material facts are to be proved; not contain any scandalous, frivolous or vexatious material; not be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay; not fail to disclose a reasonable cause of action appropriate to the nature of the pleading; and not otherwise be an abuse of the process of the Court. It is well established, in this context, that material facts must be pleaded with a degree of specificity which is sufficient to convey to the opposite party the case that that party has to meet and that a “bare conclusion” is ordinarily not a proper allegation: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 at 235; [1994] FCA 636 at 21.
93 Rule 16.21 of the Rules provides, in effect, the remedy of striking out a pleading, or any part of it, which materially fails to meet any of the requirements in r 16.02.
94 Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the FCA Act, which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
95 The grounds upon which a pleading can be struck out under r 16.21 of the Rules correspond, to a large extent, with the grounds upon which a proceeding may be summarily dismissed under s 31A of the FCA Act and r 26.01 of the Rules. The Court will proceed to strike out under r 16.21, rather than summarily dismiss the proceeding under r 26.01 of the Rules, where, although there are deficiencies in the pleading, a reasonable cause of action may still exist. The granting of leave to replead in those circumstances may allow the applicant to remedy the deficiencies.
96 The word “vexatious” in the context of rules such as r 16.21 is an “omnibus expression” that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing or the inclusion of which is otherwise an abuse of the processes of the court: Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984) per Starke at 12, Crockett and Beach JJ agreeing at 17, referred to with approval in Matthews v State of Queensland [2015] FCA 1488 at [87]. Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are “obviously untenable or manifestly groundless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491-492; see also Von Reisner v Commonwealth (2009) 177 FCR 531; [2009] FCAFC 97 at [27].
97 A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations, or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434; [1995] FCA 1429 at 12; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd (2011) 209 IR 263; [2011] FCA 803 at [18]; Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278 at 283; [2004] FCA 1393 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purpose of r 16.21(1)(c) of the Rules.
98 A pleading can be said to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead in defence to: Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27 at [80], [84]. A party cannot be expected to respond to mere context, commentary, history, narrative material or material of a general evidentiary nature: Fuller v Toms at [83].
99 A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd v Pearce (1996) 138 ALR 522 at 531; [1996] FCA 599 at 21.
100 A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42]-[43]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Allstate at 236.
101 If substantial parts of a pleading are struck out, the court may strike out the entire pleading on the basis that the residue would be confusing: Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 92 ALR 395 at 413; [1990] FCA 18 at 38; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 153-154; [1998] FCA 791 at 24.
102 Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: Allstate at 236. The power is discretionary and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685 at 695; [1994] FCA 628 at 21.
SHOULD SUMMARY JUDGMENT BE ENTERED AGAINST MR DUNSTAN?
103 The short answer to this question is “yes”. Summary judgment should be entered against Mr Dunstan because no reasonable cause of action is disclosed in his pleading, he has no reasonable prospect of successfully prosecuting the proceeding and the proceeding is otherwise an abuse of process.
104 While there is a considerable overlap between Mr Dunstan’s claim that the Commonwealth is liable to him for negligence and his apparent claim that the judgment of Besanko J was procured by fraud, it is best to consider those claims separately when considering whether a reasonable cause of action is disclosed and whether Mr Dunstan has reasonable prospects of successfully prosecuting the claims.
The action in negligence
105 Mr Dunstan’s principal claim against the Commonwealth is, or at least appears to be, a claim for damages for negligence. He claims that the Commonwealth owed him a duty of care, that the Commonwealth breached that duty of care in various ways and that those breaches caused him loss and damage.
106 There are, however, a number of fundamental and incurable defects and deficiencies in his negligence claim as pleaded.
No arguable basis for the alleged duty of care
107 The starting point in any action in negligence is the existence of a duty of care owed by the defendant (or respondent) to the plaintiff (or applicant). In his pleading, Mr Dunstan alleges, somewhat ambiguously, that “the Commissioner of Taxation for the Commonwealth of Australia owed a duty of care to [him] and is responsible for its negligent acts and those of the respondents, witnesses, and its agents including the legal representatives it engaged to represent itself and the respondents in proceedings with [him]”: ASOC [55]. The particulars of that allegation in the pleading suggest that the duty of care arose by reason of either the common law, or Mr Dunstan’s employment under the Public Service Act, or the Commonwealth’s model litigant obligations, or certain rules under the Conduct Rules under the Legal Profession Act. There is also some suggestion that the duty of care arose because the Commonwealth could foresee harm to Mr Dunstan because it was aware that he suffered from chronic major depression.
108 While the nature and content of the duty of care that Mr Dunstan alleges the Commonwealth owed him is somewhat obscure and unclear, the allegation appears to be that the Commonwealth owed him a duty of care in relation to the conduct of the litigation in which he was engaged, in particular the proceedings that were heard in this Court by Besanko J and in the ACT Supreme Court by Burns J. That is because the postulated duty of care, to the extent that it is defined at all, appears to be defined by reference to allegedly negligent acts which occurred in that litigation. The fundamental problem for Mr Dunstan, however, is that there is no basis, or no reasonably arguable basis, upon which it could be concluded that the Commonwealth owed him a duty of care in the context of the relevant litigation. None of the facts or circumstances identified in the pleading provide a sound or reasonable basis for the existence of the alleged duty of care.
109 As for the contention that the duty of care is “established” by the common law, Mr Dunstan’s pleading and submissions do not elaborate on how the common law is said to establish the alleged duty of care. Nor was Mr Dunstan able point to any authority which provided any support for that proposition. That is perhaps not surprising because such authority as exists in respect of the issue tells against the existence of any such duty of care arising in the context of litigation. In particular, there is “a well-recognised general rule that a litigant owes no duty of care to another litigant in the conduct of civil litigation”: Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [52]-[53]; see also Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181; [2006] UKHL 28 and Jain v Trent Strategic Health Authority [2009] AC 853; [2009] UKHL 4 at [35]. In Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307; [2005] QCA 475 at [19], McPherson JA (with whom Jerrard JA and Chesterman J agreed) said that “apart from remedies conferred by statute or by the common law in the form of malicious prosecution or collateral abuse of process, no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff”.
110 Mr Dunstan does not claim or plead that the Commonwealth is liable to him for malicious prosecution or collateral abuse of process. It follows that there is no sound basis for any contention by Mr Dunstan that the Commonwealth owed him a duty of care by virtue of the fact that it was a party to the relevant litigation. It may also be noted in that regard that, while the Commonwealth was a party to the proceeding that was heard by Burns J in the ACT Supreme Court, it was not a party to the proceeding in this Court before Besanko J. Mr Dunstan’s allegation that the Commonwealth owed him a duty of care in respect of the conduct of that proceeding is accordingly even more obscure.
111 Mr Dunstan also appears to allege that the Commonwealth was somehow liable for the negligent acts of not only the individual respondents who gave evidence in the proceedings before Burns J and Besanko J, but also their legal advisers. The fundamental problem for Mr Dunstan in respect of that allegation, however, is that a “party cast in a judgment in a suit at law cannot maintain an action against the adverse party for suborning a witness, whose false testimony tended to produce the judgment” and an “action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent”: Cabassi v Vila (1940) 64 CLR 130 at 139; [1940] HCA 41; see also Commonwealth v Griffiths (2007) 245 ALR 172; [2007] NSWCA 370 at [41]-[44].
112 In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [39], the plurality (Gleeson CJ, Gummow, Hayne and Heydon JJ) expressed the relevant principles in the following emphatic and unambiguous terms:
From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit. As the whole Court said in Lange v Australian Broadcasting Corporation:
“The result [of the defence] is to confer upon defendants, who choose to plead and establish an appropriate defence, an immunity to action brought against them.”
(Footnotes omitted)
113 Because it is not open to Mr Dunstan to sue the individual respondents who were witnesses in the relevant litigation on the basis that they gave false evidence, it is also not open to Mr Dunstan to sue the Commonwealth on the basis that it is vicariously liable for the acts of those respondents. That is because “a person who is vicariously liable for the tortious conduct of another is protected by any immunity that is available to the actual wrongdoer”: Commonwealth v Griffiths at [115] (Beazley JA, Mason P agreeing at [1] and Young CJ in Eq agreeing at [144] and [152]).
114 As for Mr Dunstan’s claim that the Commonwealth is somehow liable in respect of the allegedly negligent acts of its legal advisers, or the legal advisers of the individual respondents, in respect of the conduct of the litigation, the fundamental problem is that, like witnesses, advocates, including counsel and solicitors, are subject to an absolute immunity from suit in relation to their conduct of litigation: D’Orta-Ekenaike at [43]-[45]. That immunity extends to “work done out of court which leads to a decision affecting the conduct of the case in court”: Giannarelli v Wraith (1988) 165 CLR 543 at 560; [1988] HCA 52; Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [2]. It again follows that the Commonwealth cannot be said to be somehow vicariously liable for the allegedly negligent acts of its legal advisers, or the legal advisers who acted for the individual respondents, in respect of the earlier litigation.
115 It should also be noted in this context that Mr Dunstan’s pleading does not clearly or directly allege that the Commonwealth was vicariously liable. The basis upon which the Commonwealth is said to be liable in negligence is at best obscure.
116 The other bases upon which Mr Dunstan contends that the Commonwealth owed him a duty of care in the context of the previous litigation are equally unmeritorious.
117 As for the allegation that the Commonwealth owed him a duty of care because he was employed under the Public Service Act, the fundamental problem is that Mr Dunstan was no longer an employee of the Commonwealth by the time the proceedings before Besanko J and Burns J were heard. In any event, the Commonwealth might be said to have owed Mr Dunstan a duty of care as an employee in respect of matters relating to his employment, for example a duty to provide him with a safe workplace. That duty of care would not, however, extend to matters arising in the context of litigation, all the more so in the case of litigation which took place many years after the employment relationship was terminated.
118 The allegation that a duty of care arose as a result of the Commonwealth’s obligation to act as a model litigant is also fundamentally flawed. It may be accepted that, at the time of the relevant litigation, the Commonwealth was obliged to act as a model litigant by reason of the Legal Services Directions 2005 (Cth) made under s 55ZF(1) of the Judiciary Act 1903 (Cth). That obligation extended to the individual respondents because they were granted legal assistance by the ATO. The legal representatives for the Commonwealth and the individual respondents were also obliged to comply with the Legal Services Directions: see s 55ZG(1)(f) of the Judiciary Act.
119 It does not follow, however, that the Commonwealth owed Mr Dunstan a duty of care such as to found any action in negligence based on alleged breaches of the Legal Services Directions. Indeed, it is abundantly clear that non-compliance with the Legal Services Directions cannot form the basis of any civil action. Section 55ZG(3) of the Judiciary Act provides that the “issue of non-compliance with a Legal Services Direction may not be raised in any proceeding … except by, or on behalf of, the Commonwealth”. Section 55ZI(2) of the Judiciary Act also provides that a person “is not liable to an action or other proceeding, whether civil or criminal, for or in relation to an act done or omitted to be done by the person in compliance, or in good faith in purported compliance, with a Legal Services Direction”. In those circumstances, it has been held that no private rights are conferred by, or as a result of, the Commonwealth’s obligation to act as a model litigant: Caporale v Deputy Commissioner of Taxation (2013) 212 FCR 220; [2013] FCA 427 at [39].
120 It follows that the Commonwealth’s obligations under the Legal Services Directions provide no basis for finding that the Commonwealth owed Mr Dunstan a duty of care.
121 Mr Dunstan’s allegation that the Commonwealth somehow owes him a duty of care as a result of the operation of the Conduct Rules is similarly without any merit. The Conduct Rules impose certain obligations on legal practitioners in the ACT. It is impossible to see how they could sensibly be said to give rise to a duty of care on the part of the Commonwealth. It is equally impossible to see how the Commonwealth could be said to be vicariously liable in negligence in respect of any breach of the Conduct Rules by a legal practitioner in circumstances where, as already noted, legal practitioners have an absolute immunity from suit in relation to their conduct of litigation.
122 Finally, even if it could be accepted that the Commonwealth could foresee harm to Mr Dunstan because it was aware that he suffered a mental illness, which is itself a doubtful proposition, it does not follow that the Commonwealth owed him a duty of care. A “defendant does not owe a duty to take reasonable care in relation to acts or omissions merely because they may foreseeably cause harm to a plaintiff”: Perera at [40]. Rather, a “defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care”: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [42]. For the reasons already given, there is no sound basis upon which it could be contended that the Commonwealth owed Mr Dunstan a duty of care as he alleges.
123 The question whether a defendant owes a plaintiff a duty of care is ultimately a question of law: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [62]. The relevant inquiry, however, is multifaceted and “fact rich and fact intensive”: State of New South Wales v Spearpoint [2009] NSWCA 233 at [23]. It is for that reason that it has been said that it is “often, though not always, inappropriate to dismiss summarily a claim [alleging a novel duty of care] on the pleadings, at least as they stand at an early stage in litigation”: Spearpoint at [26]; Perera at [33]. The fact that a novel duty of care has been alleged, however, does not immunise a pleading from summary dismissal: Perera at [32]. Indeed, the principles of general application by which the law of tort develops “give a measure of coherence to the law as a whole, and they permit a court to identify, with the requisite confidence required for summary dismissal, cases where no duty of care will lie”: Perera at [39].
124 This is a case where the Court can determine, with the requisite confidence, that the Commonwealth did not owe Mr Dunstan any duty of care in respect of, or in the context of, the litigation instigated by him. None of the facts, matters or circumstances referred to in Mr Dunstan’s pleadings and submissions, even if proved at trial, would be capable of establishing that the Commonwealth owed Mr Dunstan the alleged duty of care.
125 It follows that the alleged cause of action in negligence against the Commonwealth is not a reasonable cause of action. It can also safely and confidently be concluded that Mr Dunstan does not have any reasonable prospect of successfully prosecuting his claim in negligence. The conclusion that summary judgment should be entered against Mr Dunstan in respect of his claim against the Commonwealth in negligence on this basis is fortified by the fact that summary judgment was entered against plaintiffs who alleged duties of care in relevantly similar circumstances in Commonwealth v Griffiths, Perera, and more recently Eastlund (a pseudonym) v Westlake (a pseudonym) [2022] ACTSC 52 and Eastlund (a pseudonym) v Orezykowski; Eastlund (a pseudonym) v Shavaiz [2022] ACTSC 68.
126 I should also add, for more abundant caution, that I am also satisfied to the requisite standard that Mr Dunstan’s pleadings and submissions also do not disclose any reasonable cause of action against the Commonwealth on the basis that it is somehow vicariously liable for the allegedly negligent acts of the individual respondents who gave evidence in the proceedings before Besanko J and Burns J, or the legal representatives who acted for the individual respondents and, in the case of the proceedings before Burns J, the Commonwealth. Mr Dunstan does not directly plead or allege that the individual respondents and the legal advisers owed him a duty of care. I am in any event satisfied that there is no principled basis upon which it could be found that the individual respondents and the legal advisers owed Mr Dunstan any duty of care in respect of the conduct of the litigation. More fundamentally, for the reasons already given, the individual respondents have immunity from suit in respect of the evidence they gave in the proceedings before Besanko J and Burns J and the legal advisers have immunity from suit in respect of their conduct of the litigation. It follows that there is no arguable basis upon which it could be concluded that they are liable to Mr Dunstan in negligence, or that the Commonwealth is vicariously liable for their negligence.
No reasonable case in respect of the alleged breaches of duty
127 The absence of any arguable case that the Commonwealth owed Mr Dunstan a duty of care is a sufficient basis upon which to enter summary judgment against Mr Dunstan in respect of his negligence case against the Commonwealth. There are, however, other fundamental and insurmountable difficulties with Mr Dunstan’s case in negligence against the Commonwealth. I should, in deference to the detailed and persuasive submissions of the respondents, deal briefly with some of the difficulties in respect of the other elements of Mr Dunstan’s negligence case.
128 Mr Dunstan’s claim that the Commonwealth breached the duty of care it owed him, or is in some way vicariously liable for the negligent acts of the individual respondents and the legal advisers, is based on a series of complex, convoluted and arcane allegations concerning allegedly false or fraudulent evidence in the proceedings before Besanko J and Burns J, the allegedly deliberate concealment of documents or parts of documents that supposedly should have been discovered in that litigation, and an alleged conspiracy between the individual respondents to terminate Mr Dunstan’s employment.
129 In short summary, Mr Dunstan alleges that: Mr Growder gave deliberately or recklessly false evidence before Besanko J concerning his motive for investigating Mr Dunstan’s systems access and the timing of the commencement of that investigation; Dr Molineux gave deliberately or recklessly false evidence before Besanko J in respect of a meeting which he had with Mr Growder on 13 May 1997 which was said to be relevant to Mr Growder’s intention or desire to have Mr Dunstan’s employment terminated; Ms Orr gave deliberately or recklessly false evidence before Besanko J in respect of her knowledge, as at 13 May 1997, of the HREOC proceedings and private prosecution commenced by Mr Dunstan; Mr Higham gave deliberately or recklessly false evidence during the proceeding before Besanko J, and the proceeding before Burns J, concerning why, as at 29 July 1997, he had not decided, or could not have decided, not to charge Mr Dunstan under the Public Service Act; Mr Higham gave deliberately or recklessly false evidence before both Besanko J and Burns J to the effect that he created his final report in September or October 1997; Ms Orr gave deliberately or recklessly false evidence in the proceeding before Besanko J concerning her knowledge, state of mind and involvement in the events that occurred after her decision on 4 June 1997 to suspend Mr Dunstan; the Commonwealth failed to discover certain documents in both the proceeding before Besanko J and the proceeding before Burns J; and the Commonwealth’s legal representatives failed to inform the court that Mr Growder, Ms Orr and Mr Higham lied and suppressed material evidence in both the proceeding before Besanko J and the proceeding before Burns J, and falsely claimed legal professional privilege in respect of certain documents.
130 I have read and given detailed consideration to the voluminous affidavit and documentary evidence and written submissions relied on by Mr Dunstan in respect of those serious allegations. I have also given detailed consideration to the respondents’ written submissions which address the allegations at some length. For reasons that will become apparent, I do not propose to address or analyse in detail the allegations and the prolix and labyrinthine arguments that Mr Dunstan advanced in respect of them. It suffices to address what I consider to be the fundamental problems with Mr Dunstan’s case in respect of those serious allegations and his contention that they establish, or if made out are capable of establishing, a breach of the duty of care that Mr Dunstan alleges the Commonwealth owed him.
131 The first problem is that in the proceeding before Besanko J, Mr Dunstan challenged the evidence of Mr Growder, Dr Molineux, Ms Orr and Mr Higham and sought to impugn their credibility and reliability as witnesses. The underlying claims or allegations upon which Mr Dunstan relied in challenging the evidence of the relevant witnesses in the proceeding before Besanko J are, for all intents and purposes, essentially the same as those upon which he relies in this proceeding. The problem for Mr Dunstan is that Besanko J categorically dismissed his challenges to the evidence of the witnesses and categorically rejected his contention that the witnesses had given false evidence.
132 As noted earlier, the proceedings before Besanko J concerned Mr Dunstan’s challenge to three decisions that he alleged were made in respect of the investigation into his alleged systems violations, his suspension from duty and the subsequent charges that were laid against him under the Public Service Act. It is unnecessary to descend into detail in relation to the particulars of Mr Dunstan’s challenge to those decisions. It is readily apparent that one of the central planks of his case was that Mr Growder was improperly motivated to pursue Mr Dunstan by a desire to retaliate against him because he had commenced the HREOC and private prosecution proceedings against him. Mr Dunstan also alleged that Mr Higham’s improper motivation or desire came to be shared by Dr Molineux, Mr Higham and Ms Orr. He alleged, in short, that there was a conspiracy against him led by Mr Growder.
133 Many, if not most, of the allegations concerning false evidence that Mr Dunstan seeks to agitate in this proceeding directly or indirectly relate to his overriding allegation that Mr Growder, Ms Orr, Dr Molineux and Mr Higham conspired against him and acted for an improper purpose. Mr Dunstan alleges, in summary, that the evidence that the witnesses gave before Besanko J that tended to refute that allegation was false. Justice Besanko gave detailed consideration to Mr Dunstan’s allegation that the ATO officers were improperly motivated and detailed consideration to Mr Dunstan’s contention that the evidence the witnesses gave which bore on that issue was false. His Honour made the following findings.
134 First, each of Mr Growder, Ms Orr, Dr Molineux and Mr Higham “was an honest and straightforward witness” and his Honour accepted the evidence that they gave: Dunstan v Orr at [19].
135 Second, Mr Growder’s actions “were not motivated by a desire to retaliate” and Mr Growder “acted in good faith and genuinely formed the opinion that [Mr Dunstan] may have failed to fulfil his duties as an officer”: Dunstan v Orr at [72]. His Honour was “not satisfied that the fact that [Mr Dunstan] had commenced criminal and civil proceedings against [Mr Growder] played any part in the opinion formed by [Mr Growder]” and was “not satisfied on the evidence that [Mr Growder] wished to remove [Mr Dunstan] from his place of employment or that he wished [Mr Dunstan] to have no entitlement to salary payments while conducting legal proceedings against him”: Dunstan v Orr at [105].
136 Third, insofar as Mr Dunstan had put to Ms Orr that she acted on Mr Growder’s opinion and that, as his purpose was improper, her purpose was also improper, that submission failed given the finding that Mr Growder’s purpose was not improper: Dunstan v Orr at [73]. His Honour accepted that Ms Orr “did not have a clear recollection of all matters, but she was a credible witness and the fact that her recollection was not perfect is unsurprising having regard to the lapse of time between the relevant events and the time at which she gave evidence”: Dunstan v Orr at [73]. His Honour rejected Mr Dunstan’s contention that Ms Orr improperly exercised her power under the Public Service Act because she acted at the behest of Mr Growder and found that there was no evidence to suggest that Ms Orr “did not consider the matters she was required to consider” in making the decision she did: Dunstan v Orr at [117].
137 Fourth, nothing that Mr Dunstan put to Mr Higham concerning his decision “affected his credibility or supported any of the grounds upon which his decision [was] challenged”: Dunstan v Orr at [79].
138 Fifth, in relation to Dr Molineux, his Honour noted that in his evidence Dr Molineux had denied Mr Dunstan’s assertion that the sequence of events, including the decision to get a second opinion, indicated “an intention by officers of the ATO to ‘get’ [Mr Dunstan]” and found that there was “no reason to doubt his denial”: Dunstan v Orr at [81]. More generally, his Honour declined to draw the inference that the ATO officers were out to “get” Mr Dunstan: Dunstan v Orr at [81].
139 Justice Besanko’s judgment was the first occasion on which the substance of many, if not most, of the serious allegations that Mr Dunstan seeks to level against Mr Growder, Ms Orr, Dr Molineux and Mr Higham in this proceeding were categorically rejected by a judge.
140 Mr Dunstan contended, in effect, that he was not in any way estopped or otherwise precluded from reagitating the claims and allegations which were put to and rejected by Besanko J in the ADJR Act proceeding. That was because, so he claimed, certain documents were concealed from him at the time of the proceedings before Besanko J. Those documents were: first, all four “day books” containing the “Molineux notes”; second, Mr Higham’s minute dated 29 July 1997; third, the legal advice that the ATO received from Mr Burslem; fourth, a minute prepared by Mr Seymor dated 30 July 1997; fifth, Ms Orr’s memorandum dated 15 August 1997; and sixth, some pages of Dr Molineux’s notes.
141 It is unnecessary to deal at length with Mr Dunstan’s claims about what documents he maintains he did not have access to for the purposes of the proceeding before Besanko J. That is because, for the most part, he had access to those documents, or those parts of the documents that were not privileged, for the purposes of the proceeding before Burns J. It is the findings made in the disposition of the proceeding before Burns J that provide the insurmountable estoppel issues for Mr Dunstan. The following brief points, however, should be noted.
142 First, the contention that the documents were “concealed” from Mr Dunstan is unsupported by any probative evidence and must be rejected.
143 Second, the critical document would appear to be Mr Higham’s minute dated 29 July 1997. That document was included in the respondents’ list of discovery documents in the proceeding before Besanko J. It was, however, the subject of a claim of legal professional privilege. As will be seen, that privilege claim was dealt with at length by the ACT Court of Appeal in the appeal from the judgment from Burns J: Dunstan v Higham CA at [138]-[159].
144 Third, the relevance and materiality to the issues in the proceeding before Besanko J of the other documents identified by Mr Dunstan is at best questionable. It is doubtful that they would have provided any support for the contentions Mr Dunstan advanced before Besanko J and even more doubtful that they provide any support for the serious allegations he raises in this proceeding.
145 The more fundamental problem for Mr Dunstan in relation to his claim that the Commonwealth breached its duty of care is that the allegations that he advances in that regard are effectively the same as those that were advanced by him in the proceeding before Burns J. To the extent that the allegations are not the same as those that were advanced before Burns J, the allegations plainly could and should have been raised in that proceeding.
146 As noted earlier, the proceeding before Burns J involved claims by Mr Dunstan against, relevantly, the Commonwealth, Mr Growder, Ms Orr and Mr Higham, of misfeasance in public office, breach of contract, conspiracy, defamation and interference with contractual relations. Mr Dunstan’s claim focussed on the allegation that Mr Higham had decided not to charge him on 29 July 1997 and could not lawfully subsequently decide to charge him. That contention was based mainly on the terms of Mr Higham’s minute dated 29 July 1997, a copy of which had by this time been obtained Mr Dunstan. Mr Dunstan did, however, also reagitate his claim that Mr Growder, Ms Orr and Mr Higham had unlawfully conspired to have his employment terminated.
147 It is readily apparent that, in pursuing those allegations, both at first instance before Burns J and on appeal to the ACT Court of Appeal, Mr Dunstan again contended that Mr Growder, Ms Orr, and Mr Higham had given false evidence in respect of the events surrounding his suspension and the laying of charges against him, both in the proceeding before Besanko J and the proceeding before Burns J. The allegations that the Mr Growder, Ms Orr and Mr Higham had given false evidence again focussed to a large extent on their evidence which bore, or was said to bear, directly or indirectly on the question whether, in acting as they did, Mr Growder, Ms Orr and Ms Higham were improperly motivated by a desire to retaliate against Mr Dunstan for commencing the HREOC proceeding and the private prosecution. Mr Dunstan also contended that Mr Higham gave false evidence, both in the proceeding before Besanko J and in the proceeding before Burns J itself, in respect of the timing of his decision to lay charges against Mr Dunstan.
148 The principal reason given by Burns J for dismissing Mr Dunstan’s claim with costs was that his pleaded causes of action were all statute barred. Mr Dunstan argued that his case fell within the postponement of the bar in s 33(1) of the Limitation Act because the existence of Mr Higham’s minute had been concealed from him. That contention was rejected by Burns J on the basis that Mr Higham’s minute did not constitute or evidence a final decision by Mr Higham not to charge Mr Dunstan and therefore could not constitute a “fact relevant to a cause of action” for the purposes of s 33(1) of the Limitation Act: Dunstan v Higham at [51], [55], [58], [65], [67].
149 It is, however, readily apparent that Burns J also rejected Mr Dunstan’s contention that Mr Growder, Ms Orr and Mr Higham had given false evidence. His Honour also rejected Mr Dunstan’s contention that Mr Growder, Ms Orr and Mr Higham had “engaged in a disgraceful and unlawful campaign to have him removed from his office as a public servant”: see Dunstan v Higham at [12], [52], [56] and [64].
150 As for the contention that Mr Growder, Ms Orr and Mr Higham had given false evidence, Burns J concluded (Dunstan v Higham at [14]):
In final submissions the plaintiff made numerous criticisms of the evidence of the defendants. It would be an unproductive use of my time to set out in full those criticisms, which mainly centred around minor inconsistencies within the evidence that they gave, or between the evidence that they gave in these proceedings and that which they had given in earlier proceedings. To my mind none of the matters raised by the plaintiff raised serious concerns about the credit of the defendants. It is to be expected that after 17 years their memories will have deteriorated. Because of the importance of the evidence of Mr Higham concerning his Minute, I will deal separately with the issues raised by the plaintiff concerning that witness later in these reasons.
151 His Honour dealt at length with Mr Dunstan’s criticisms of Mr Higham’s evidence and the contention that he had given false evidence, including in the proceeding before Besanko J, concerning the existence of his minute and the timing of his decision to charge Mr Dunstan: Dunstan v Higham at [39]-[51]. His Honour rejected Mr Dunstan’s contentions in that regard, including his contention that, in his evidence before Besanko J, Mr Higham had attempted to mislead and conceal the true nature of the minute: Dunstan v Higham at [49], [51]. His Honour also found that Mr Higham “independently and properly made a decision that charges should be laid against [Mr Dunstan]” (Dunstan v Higham at [52]) and that Mr Growder, Ms Orr and Mr Higham “did not attempt to have [Mr Dunstan’s] employment terminated outside the scope of the Public Service Act, and did not act in bad faith in their dealings with [him]”: Dunstan v Higham at [56].
152 Justice Burns’s judgment was the second occasion on which the substance of the serious allegations that Mr Dunstan seeks to level against Mr Growder, Ms Orr and Mr Higham in this proceeding were categorically rejected by a judge.
153 As has already been noted, Mr Dunstan appealed the judgment of Burns J. That appeal was unsuccessful. Relevantly, for present purposes, the ACT Court of Appeal rejected Mr Dunstan’s contention that Burns J had erred in accepting the evidence of Mr Growder, Ms Orr and Mr Higham, or in rejecting Mr Dunstan’s contention that there was a conspiracy against him: Dunstan v Higham CA at [132]. The ACT Court of Appeal also considered at length Mr Dunstan’s contention that Mr Higham, Ms Orr and Mr Growder had deliberately concealed Mr Higham’s minute dated 29 July 1997 from Besanko J by improperly claiming legal professional privilege over the whole document. The court found that, while a claim of legal professional privilege was only properly made in respect of those parts of the minute that recorded legal advice, the solicitor who had advised the respondents in relation to the privilege claim genuinely believed that the claim was appropriate: Dunstan v Higham CA at [154]. The court also found that Mr Dunstan had not established that Mr Growder, Ms Orr and Mr Higham had a motivation to conceal the minute, or that they acted improperly in claiming legal professional privilege over the whole of the document, or that they deliberately concealed the minute: Dunstan v Higham CA at [158]-[159].
154 The ACT Court of Appeal judgment was, in effect, the third time that a court had rejected the substance of Mr Dunstan’s claim, that he seeks to reagitate in this proceeding, that Mr Growder, Ms Orr and Mr Higham had given false evidence in the proceedings before Besanko J and Burns J. The ACT Court of Appeal also rejected Mr Dunstan’s serious allegations concerning the conduct of the respondents’ legal advisers: Dunstan v Higham CA at [154].
155 The judgments of Burns J and the ACT Court of Appeal in the litigation instigated by Mr Dunstan in the ACT Supreme Court create insurmountable hurdles for his contention in this proceeding that, assuming the Commonwealth owed him a duty of care, the Commonwealth breached that duty of care in some way arising from the fact that Mr Growder, Ms Orr and Mr Higham gave false evidence in the proceedings before Besanko J and Burns J. Given the findings in those cases, Mr Dunstan is estopped from reagitating the allegations against Mr Growder, Ms Orr and Mr Higham in this proceeding. He is also estopped from reagitating the allegations against the respondents’ legal advisers in respect of their conduct of the earlier proceedings.
156 It is unnecessary to deal at length with the relevant principles in respect of issue estoppel and Anshun estoppel. In summary, issue estoppel “operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment”: Tomlinson at [22]. The consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”: Blair v Curren (1939) 62 CLR 464 at 531; [1939] HCA 23.
157 Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45), on the other hand (Tomlinson at [22]):
operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of the first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.
(Footnotes omitted)
158 The factual claims and allegations that Mr Dunstan raises in this proceeding in the context of his allegation that the Commonwealth breached its alleged duty of care are in substance the same as the factual claims and allegations that were resolved or determined against him by Burns J at first instance and the ACT Court of Appeal on appeal. While the arguments Mr Dunstan advances in respect of those claims and allegations in this proceeding are perhaps more elaborate and intricate than those he advanced in the earlier proceedings, the essence or substance of them remain the same: first, in acting as they did, Mr Growder, Ms Orr and Mr Higham were improperly motivated by a desire to retaliate against Mr Dunstan for having commenced the HREOC proceeding and private prosecution; second, on 29 July 1997, Mr Higham decided not to lay charges against Mr Dunstan; third, the evidence given by Mr Growder, Ms Orr, Mr Higham and Dr Molineux which tended against or was inconsistent with Mr Dunstan’s claims in that regard was false; and fourth, Mr Growder, Ms Orr, Mr Higham, the Commonwealth and their legal advisers concealed documents which supported Mr Dunstan’s claim. The rejection of those allegations and claims by both Burns J and the ACT Court of Appeal precludes Mr Dunstan from raising them again in this proceeding. Those issues of fact have been disposed of once and for all.
159 Alternatively, if the allegations and claims that Mr Dunstan raises in this proceeding are not sufficiently the same as those raised in the proceeding before Burns J and the ACT Court of Appeal such as to give rise to an issue estoppel, they could certainly be said to be so connected with the subject matter and substance of the claims in the those proceedings as to make it unreasonable for them not to have been raised in them such as to give rise to an Anshun estoppel. To the extent that the factual claims and allegations Mr Dunstan raises in this proceeding differ at all to those he raised in the proceeding in the ACT Supreme Court, those differences are very minor matters of emphasis. The differences, if there are any, simply reflect the fact that Mr Dunstan has had more time to conjure up ever more elaborate arguments and theories to support his claims and allegations.
160 In the course of his oral submissions, Mr Dunstan eventually conceded that the claims and allegations against Mr Growder, Ms Orr and Mr Higham that he raises in this proceeding are similar to those that he raised in the earlier proceedings. He sought to justify his reagitation of those claims and allegations in three ways. First, he complained that Dr Molineux’s notes were only disclosed to him in the course of the hearing before Burns J. Second, he advanced a series of somewhat perplexing claims concerning Dr Molineux’s notes. Those claims included: first, that a line in the copy of Dr Molineux’s notes that were disclosed to him in separate proceedings had been erased; second, there was some other version of the Molineux notes which had not been disclosed to him; third, there was a “fourth day book” of notes made by Dr Molineux that had not been disclosed to him; and fourth, that the respondents had somehow acted improperly in only recently confirming that they had been able to locate an unredacted copy of the notes that had been disclosed to him in a redacted form in the proceeding before Burns J. Third, Mr Dunstan contended that “fresh facts” had become available to him in recent times.
161 None of those three matters provides any explanation for why the claims and allegations that he raises in this proceeding, to the extent (if any) that they differ to the claims and allegations raised in the proceedings in the ACT Supreme Court, were not raised in those proceedings. None of the three matters provides any justification whatsoever for the reagitation of the claims and allegations in this proceeding.
162 As for Mr Dunstan’s claim that Dr Molineux’s notes were only disclosed to him part way through the hearing before Burns J, even if that is accepted, there is no basis for Mr Dunstan’s implicit assertion that he was somehow prejudiced by that late production. Mr Dunstan was represented by experienced counsel at the hearing before Burns J. If the notes were produced late, and if that caused Mr Dunstan any prejudice, it was open to his counsel to either apply for an adjournment, or apply for witnesses to be recalled, or take some other step to remedy or deal with any prejudice. It may be inferred that a forensic or strategic decision was taken by him or his counsel to proceed with the hearing as they did. In any event, it appears that the notes were produced at a sufficiently early stage of the trial as to permit debate and resolve the issues concerning the redactions that had been made to the copies of the notes on the basis of relevance and privilege.
163 As for Mr Dunstan’s other claims concerning Dr Molineux’s notes, in my view they rose no higher than bare speculation or somewhat paranoid conspiracy theories. The claim concerning erasure was based on the fact that a line in a copy of Dr Molineux’s notes that was produced in the course of separate proceedings in the Administrative Appeals Tribunal appeared to have been erased. It is clear, however, that the line that was erased was a fax header. In the version of the notes produced in the proceeding before Burns J, the fax header had been redacted on the basis of relevance. It is entirely unclear how or why the fact that someone (it is not known who it was) chose to erase the fax header on the copy of the notes produced in a different proceeding somehow justifies the reagitation, in this proceeding, of serious claims and allegations that were emphatically rejected in the proceedings in ACT Supreme Court.
164 Mr Dunstan’s claim that there was a fourth day book containing notes by Dr Molineux that had never been disclosed appeared to be based on nothing more than pure speculation that Dr Molineux would have been involved in, and would have recorded his involvement in, further events concerning Mr Dunstan. In any event, this was a claim that Mr Dunstan could have, but did not, raise in the proceeding before Burns J if it had any merit or relevance.
165 There is also no basis whatsoever for Mr Dunstan’s claim that the respondents or their legal advisers somehow acted inappropriately by confirming, only shortly prior to the hearing of this application, that they had taken steps to locate an unredacted copy of Dr Molineux’s notes. The respondents confirmed that they had been able to locate an unredacted version of the notes so that, if the Court allowed Mr Dunstan’s production application and ordered an unredacted copy of the notes to be produced, the respondents would be able to comply with that order without delay. For the reasons given earlier, however, I dismissed Mr Dunstan’s production application in respect of the unredacted notes. Mr Dunstan’s complaint that he only received notice that the respondents had an unredacted copy of the notes shortly prior to the hearing therefore goes absolutely nowhere. It certainly does not provide any justification for Mr Dunstan’s attempt to reagitate in this proceeding claims and allegations that were rejected many years ago by Burns J and the Court of Appeal. I should also add that it is not surprising that the respondents’ legal advisers took some time to locate an unredacted version of the notes given the time that has passed since the redacted version of the notes was produced and tendered in the proceeding before Burns J.
166 Finally, Mr Dunstan’s claim that he has recently come into possession of fresh facts is also entirely without merit.
167 When pressed at the hearing to identify any fresh facts or evidence that had come into his possession since the proceeding before Burns J, the only fresh fact that Mr Dunstan was able to identify was his recent “realisation” that Mr Higham’s final report had been fabricated. According to Mr Dunstan, he first came to realise that Mr Higham’s report was fabricated after he read paragraph 45 of the judgment of the Court of Appeal, where the court said that “[w]hen Mr Higham eventually decided to charge the appellant with misconduct, a document was provided to the appellant in the same terms as the draft report, save that the word ‘draft’ was deleted”. According to Mr Dunstan, when he read that paragraph it “rang a bell” and he thought “that doesn’t look right”. He then collated and reanalysed the material that he already had in a different light. Mr Dunstan’s submissions concerning this supposed fresh fact were broadly consistent with what is stated in his pleading, albeit in the context of why the proceeding is not statute barred.
168 The fundamental problem for Mr Dunstan, however, is that this recent realisation could not possibly be said to be a fresh fact, or fresh evidence. It is, at best, a fresh theory or process of reasoning in respect of existing facts and evidence. It is also a theory or process of reasoning that has no sound or reasonable basis and is little more than a rehash or slight variation on Mr Dunstan’s case, already twice rejected, that Mr Higham had lied in the proceeding before Besanko J about when he made his decision to charge Mr Dunstan. The proposition that Mr Higham’s final report, which was in evidence in the proceeding before Besanko J, had been fabricated, or was only created in 2007 for the purpose of misleading the court, was never put to Mr Higham when he gave evidence in either the proceeding before Besanko J or the proceeding before Burns J. Nor does it appear to have featured in Mr Dunstan’s submissions in either of those proceedings. The fact that Mr Dunstan has recently realised that he should have put his case differently in the earlier proceedings provides no justification whatsoever for permitting Mr Dunstan to effectively reagitate, in this proceeding, his previously rejected claims that Mr Higham lied in the earlier proceedings.
169 Mr Dunstan’s pleading, as amended, also purports to identify four further fresh facts upon which this proceeding is based. Those four supposedly fresh facts may be dealt with shortly.
170 The first fresh fact was said to be the concealment of the fourth “day book” containing Dr Molineux’s notes. That is not a fresh fact. It is an allegation which, as already noted, rises no higher than bare speculation or conjecture.
171 The second fresh fact was said to be Mr Higham’s draft report dated 11 July 1997. It is difficult to see how that could possibly be a fresh fact given that it was discovered in the proceeding before Besanko J and was in evidence in the proceeding before Burns J: see Dunstan v Higham CA at [44].
172 The third fresh fact was said to be the concealment of the two file notes made by Mr Donaldson. That again is not a fresh fact. As discussed earlier, a claim of legal professional privilege was made in respect of those file notes in the proceeding before Besanko J. That privilege claim was not disputed or contested and there is no reason why it should be revisited. Mr Dunstan did not demonstrate that there was any legitimate basis for re-visiting or going behind that previously unchallenged privilege claim.
173 The fourth fresh fact was said to be the apparent erasure of a line in a version of Dr Molineux’s notes which was produced in separate proceedings. As previously discussed, even if a line of that version of the notes was erased, Mr Dunstan’s apparent claim that the erasure was fraudulent or concealed a material fact is entirely speculative. There is no basis whatsoever for inferring that the erased portion of the note could or would assist Mr Dunstan’s case. Indeed, it is readily apparent that the line that was erased was a fax header, the content of which is entirely irrelevant.
174 It follows that Mr Dunstan’s contention that he has come into possession of fresh facts or evidence following the proceeding before Burns J has no merit whatsoever.
175 The upshot is that, even if there is any material difference between the claims and allegations that Mr Dunstan raises in this proceeding and those that he raised in the proceedings in the ACT Supreme Court, Mr Dunstan has failed to demonstrate that there is any reasonable justification for him not having raised those claims in the earlier proceedings in the ACT Supreme Court. He is accordingly also estopped from raising them in this proceeding on the basis of the principles in Anshun.
176 I should also make clear in this context that, even if Mr Dunstan was not issue estopped or Anshun estopped from raising, in this proceeding, the allegations against Mr Growder, Ms Orr, Mr Higham, Dr Molineux and the Commonwealth which form the basis of his claim that the Commonwealth breached his duty of care, I would nonetheless conclude that it would be an abuse of process for him to do so. I will, however, separately address the question of abuse of process in the context of the proceeding as a whole.
177 There are other fundamental problems with Mr Dunstan’s pleaded case in respect of the allegation that the Commonwealth breached its duty of care. Given the findings I have made in respect of estoppel it is unnecessary to discuss those problems in any detail. It suffices to note that it is not entirely clear how it is alleged that the Commonwealth breached its duty of care even if it is established that Mr Growder, Ms Orr, Mr Higham and Dr Molineux gave false evidence as alleged. It is not, for example, clearly alleged that the Commonwealth knew, or ought reasonably to have known, that the evidence given by those witnesses was false. The pleading also does not state any material facts, as opposed to bare assertions, capable of supporting the very serious allegation that the Commonwealth knew or ought to have known that the witnesses gave false evidence. The same can be said concerning the very serious allegations that the Commonwealth and its legal advisers fraudulently failed to discover documents, or concealed evidence and documents in the course of the litigation. Mr Dunstan’s pleadings in relation to those allegations do not rise above bare assertion.
Damages and limitation issues
178 A cause of action in negligence accrues or is complete when the plaintiff suffers loss or damage as a result of the defendant’s breach of duty. Mr Dunstan alleges that he suffered the following loss or damage as a result of the Commonwealth’s breach of duty: first, liability for the Commonwealth’s costs in the proceeding before Besanko J; second, the costs incurred by him in the proceedings before Burns J, the ACT Court of Appeal and the High Court; third, liability for the Commonwealth’s costs in respect of the proceedings before Burns J, the ACT Court of Appeal and the High Court; and fourth, largely unparticularised economic loss and psychological harm.
179 There are issues with each of the four items of damage claimed by Mr Dunstan. More fundamentally, given the dates that he allegedly suffered the loss and damage identified by him, his claim in negligence is plainly statute barred. Section 11(1) of the Limitation Act relevantly provides that “an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff”. The problem for Mr Dunstan is that each of the items of damage identified by him was suffered by him more than six years before the commencement of this proceeding.
180 There are a number of issues in relation to the first item of damage identified by Mr Dunstan, that being his supposed liability for the Commonwealth’s costs in the proceeding before Besanko J. First, the Commonwealth was not a party to the proceeding. Not surprisingly then, no costs order was made in the Commonwealth’s favour. Even if Mr Dunstan intended to refer to a costs order made in favour of the individual respondents in the proceeding before Besanko J, the problem is that the costs order, which was made on 25 January 2008, has never been enforced and is no longer enforceable as it is statute barred. That is because there is a 12 year limitation period for the enforcement of judgments: s 14(1) of the Limitation Act. Mr Dunstan therefore has not suffered and cannot suffer any actual loss as a result of the costs order. Alternatively, if he suffered damage simply by reason of the making of the costs order on 25 January 2008, his claim in that regard is plainly statute barred.
181 Mr Dunstan’s contention that the statutory bar was or has been postponed will be considered later. As will be seen, it has no merit.
182 The second item of damage identified by Mr Dunstan, being his costs incurred in conducting the proceedings before Burns J, the Court of Appeal and the High Court, is at best highly questionable. While it is somewhat unclear, Mr Dunstan’s case would appear to be that he incurred those costs as a result of the Commonwealth’s negligence because, but for the Commonwealth’s breach of duty, it would not have been necessary for him to pursue those proceedings. The merits of that claim are at best doubtful. The reality is that Mr Dunstan incurred those costs not because of any negligence on the part of the Commonwealth, but rather because his claims before both Besanko J and Burns J were unsuccessful. Had his claim been successful, a costs order would most likely have made in his favour.
183 Putting that issue to one side, the more fundamental difficulty is that Mr Dunstan’s claim based on this item of damage is statute barred. Mr Dunstan’s liability to pay his legal representatives’ costs crystalised when a bill of costs was prepared in May 2015: see ASOC [63(b)]. Any cause of action in respect of this item of damage accordingly accrued more than six years before Mr Dunstan commenced this proceeding.
184 The same difficulties arise in respect of the third item of damage identified by Mr Dunstan, that being his liability for the Commonwealth’s costs relating to the proceeding before Burns J, including the appeals therefrom. It is also highly questionable that it could be said that Mr Dunstan’s liability to pay those costs was caused by the Commonwealth’s negligence. Rather, the costs orders were the result of the fact that Mr Dunstan failed before Burns J, the Court of Appeal and the High Court because his case had no merit.
185 In any event, Mr Dunstan’s claim arising from these costs orders is statute barred. Mr Dunstan was ordered to pay costs in respect of the proceeding before Burns J on 27 August 2014. Any cause of action arising from adverse costs orders in respect of the proceeding before Burns J accrued from that date. The sustaining of some loss or damage on a particular date, so long as it is not negligible or minimal, will trigger the commencement of the relevant limitation period, even if further loss or damage may have been suffered after that date: Innes v Commonwealth [2015] ACTCA 33 at [28]. Any cause of action in respect of this item of damage accordingly accrued more than six years before Mr Dunstan commenced this proceeding.
186 The fourth item of damage identified by Mr Dunstan is, to say the very least, nebulous and not properly pleaded or particularised. It is, however, apparent from the particulars that are provided, that some, or all, of the economic loss and psychological harm that Mr Dunstan claims he suffered as a result of the Commonwealth’s alleged negligence was incurred or suffered prior to the proceeding before Burns J: see ASOC [63(c)]. It must follow that any cause of action in respect of this item of damage accrued more than six years before Mr Dunstan commenced this proceeding and is therefore statute barred.
187 Mr Dunstan contended that there were three reasons why the Court should not accept, at least at this stage, that his cause of action in negligence is statute barred.
188 First, he contended that the time limitation in his case was suspended pursuant to s 30 of the Limitation Act because he was “incapable of, or substantially impeded in, the management of [his] affairs in relation to the cause of action” and was therefore “under a disability” for the purposes of the Limitation Act. There is, however, no basis for finding that Mr Dunstan was “under a disability” within the meaning of the Limitation Act at any relevant time during the limitation period. Indeed, all indications are quite to the contrary.
189 Mr Dunstan has instigated or been involved in numerous proceedings in numerous courts and tribunals since 1997, when the events which underlie the alleged causes under this litigation occurred. He appeared for himself in many of those proceedings and retained lawyers in others. My attention was not drawn to any statement in any of the numerous statements of reasons or judgments that have been published in respect of those proceedings which would provide any support whatsoever for Mr Dunstan’s assertion that he was incapable of, or substantially impeded in, the management of the proceedings. The fact that Mr Dunstan was able to instigate and prosecute those many and varied proceedings tells strongly against his bare assertion that he was incapacitated at any relevant time such as to postpone the limitation period relevant to his negligence claim.
190 Second, Mr Dunstan relied on s 33 of the Limitation Act and contended that the limitation was postponed or did not begin to run until 2021 or 2022 because facts relevant to his cause of action had been deliberately concealed from him and those facts had only been discovered by him in 2021 or 2022. Those “fresh facts” were said to be: first, his supposed discovery between June and November 2021 that Mr Higham (so Mr Dunstan alleged) had falsified his final report or the date that it had been prepared; second, Mr Higham’s draft report; third, the concealment of what was said to be the fourth of Dr Molineux’s day books; fourth, the concealment of two file notes made by Mr Donaldson on 12 June 1997; and fifth, the erasure of some of the contents of a page of Dr Molineux’s notes.
191 Mr Dunstan’s contention that the relevant limitation period was postponed because facts relevant to his cause of action in negligence were deliberately concealed from him has no merit and is rejected, essentially for the reasons I have already given.
192 I am not satisfied that Mr Dunstan’s asserted discovery that Mr Higham falsified his final report is capable of constituting a relevant fact for the purposes of s 33 of the Limitation Act, let alone a fact that was deliberately concealed from him. Mr Dunstan has not discovered any new fact relating to Mr Higham’s final report that had previously been concealed from him. He has, on his own account, always suspected that Mr Higham had prepared his final report in 2007. All that has happened is that Mr Dunstan has in more recent times conjured up what he considers to be a “credible motive” for Mr Higham to have falsified the report, that motive supposedly being to mislead Besanko J about the timing of his decision to charge Mr Dunstan. He has then reassessed facts and evidence already known to him and confirmed, albeit in his own mind, that Mr Higham falsified his final report. That is not a fact. It is no more than a new theory, or an allegation, or an argument by Mr Dunstan as to why it can or should be inferred that Mr Higham falsified his final report. Indeed, in reality it is no more than a slight variation to an argument concerning the truthfulness of Mr Higham’s evidence that has been put to and rejected by Burns J, Besanko J and the ACT Court of Appeal.
193 I am not persuaded that there is any evidence capable of supporting the serious allegation that Mr Dunstan falsified his final report, or that Mr Dunstan has demonstrated any reasonable basis for raising this supposedly new allegation over 20 years after the events in question and over 15 years after the proceeding before Besanko J, when Mr Dunstan first challenged the truthfulness of Mr Higham’s evidence.
194 I am also not satisfied, for the reasons I have already given, that anyone deliberately concealed from Mr Dunstan the existence of any relevant or additional notes made by Dr Molineux, or Mr Higham’s draft report, or Mr Donaldson’s file notes made on 12 June 1997, or the fact that someone may have erased a line in a copy of Dr Molineux’s notes. Even if there was any substance to Mr Dunstan’s claims that any of those documents were concealed from him at any relevant time, I am not persuaded that any fact disclosed in or evidenced by any of those documents, to the extent that this fact has not already been considered by either Besanko J, Burns J, or the ACT Court of Appeal, is relevant to Mr Dunstan’s negligence claim.
195 Third, Mr Dunstan submitted that a limitation point is not a matter generally dealt with in a strike out application, that limitation periods are matters to be pleaded in a defence and that it was accordingly not incumbent on him to plead or establish that his action was not statute barred, at least at this stage of the proceeding. There is some merit in Mr Dunstan’s submission that it is, at least in some cases, undesirable to determine whether a cause of action is statute barred at an early stage of the proceeding. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, the plurality of the High Court (Mason CJ, Dawson, Gaudron and McHugh JJ) said (at 533):
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
196 That said, where it is clear that an applicant cannot succeed on the pleaded case because a limitation period will be a complete answer to the claim, “the court should not merely defer the inevitable”: Reilly v Australia and New Zealand Banking Group Ltd (No 2) [2020] FCA 1502 at [19]-[21]. In other words, the court can and indeed should deal with a limitation issue at an interlocutory stage where the application of the limitation period is clear on the pleaded case and does not turn on contested matters of fact, or the contentious characterisation of undisputed facts, the determination of which should be left to the trial.
197 In this case, it is tolerably clear from Mr Dunstan’s pleaded case that his cause of action in negligence is statute barred. It is, nevertheless, unnecessary for me to go that far. It suffices to conclude that the likelihood that Mr Dunstan’s claim is statute barred is another factor that strongly militates towards the conclusion that he has not demonstrated that he has a reasonable cause of action, or that it may safely and comfortably be concluded that he has no reasonable prospect of successfully prosecuting this action.
Conclusion in relation to the pleaded negligence claim
198 I am satisfied that Mr Dunstan’s pleading, considered together with the evidence he has adduced and the submissions he has made, does not disclose a reasonable cause of action in negligence. I am equally satisfied that Mr Dunstan has no reasonable prospect of successfully prosecuting his negligence claim. I am not satisfied that any of the fundamental defects and deficiencies in Mr Dunstan’s pleaded negligence case could be remedied by an amendment to his pleading.
199 I accept that I must approach the task of assessing whether Mr Dunstan has a reasonable prospect of successfully prosecuting this claim with considerable caution and that I must be satisfied that there is a high degree of certainty that Mr Dunstan’s case is likely to fail. As will be apparent from my reasoning, I am comfortably satisfied that Mr Dunstan’s negligence claim is fundamentally flawed and will almost certainly fail.
200 Judgment should accordingly be entered against him and in favour of the respondents in respect of his negligence claim.
201 I will deal separately with whether the prosecution of Mr Dunstan’s claims generally would amount to an abuse of process.
The claim that the judgment of Besanko J was obtained by fraud
202 Mr Dunstan’s claim that the judgment of Besanko J was obtained by fraud for the purposes of r 39.05(b) of the Rules is by no means clearly or distinctly pleaded. The allegations of fraud, misrepresentation, non-disclosure and fraudulent concealment which are contained in the pleading are not clearly or directly linked to any such claim and the pleading itself does not explicitly seek the setting aside of the judgment of Besanko J on that basis. That relief is, however, sought in Mr Dunstan’s originating application. It is therefore appropriate to proceed on the basis that Mr Dunstan seeks to prosecute a claim, separate and distinct from his claim in negligence, that the judgment of Besanko J was obtained by fraud and should be set aside.
203 It is nevertheless abundantly clear that Mr Dunstan’s case that the judgment of Besanko J was obtained by fraud is based on exactly the same factual allegations as those that are said to support his negligence claim. There is considerable overlap between those two claims. It is accordingly possible to deal with the question whether Mr Dunstan’s claim that the judgment of Besanko J was obtained by fraud has any reasonable prospect of success in fairly brief terms.
Relevant principles
204 The principles that govern an application to set aside a judgment on the basis that it was obtained by fraud are well-established. They were conveniently summarised in the following passage from the judgment of Kirby P (with whom Hope and Samuels JJA agreed) in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539E-F:
… the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
205 The reason that the setting aside of a judgment is described as a “drastic step” and the reason that the components necessary to warrant the taking of that drastic step are quite onerous is that there is a clear public interest in finality in litigation. As Kirby P explained in Wentworth (at 538F):
Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed.
206 There is a need for a strict approach to finality in the context of claims that a judgment was obtained by fraud: Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers and Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12 at [69]-[70].
207 The reason why allegations of perjury, or even proof of perjury, would not ordinarily be sufficient to set aside a judgment was explained as follows by Kirby P in Wentworth (at 539B-D):
In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.
208 It should also be emphasised that a judgment will only be set aside as having been obtained by fraud if “actual fraud” is established. Actual fraud means “acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him” and “a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case, and obtaining [the judgment] by that contrivance”: Clone at [55] quoting Patch v Ward (1867) LR 3 Ch App 203 at 207 and 212-213. A judgment will not be set aside for “misconduct, accident, surprise, or mistake”: Clone at [55].
No reasonable cause of action or prospect of success
209 There are a number of fundamental problems with Mr Dunstan’s pleaded case that the judgment of Besanko J was obtained by fraud.
210 First, and most fundamentally, I am satisfied that Mr Dunstan has no reasonable prospects of establishing that he has discovered fresh facts which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment of Besanko J. The fresh facts that Mr Dunstan has identified in his pleading have already been the subject of detailed consideration earlier in these reasons. They are, in summary: first, Mr Dunstan’s supposed discovery that Mr Higham falsified his final report; second, the concealment of a supposed fourth day book of notes made by Dr Molineux; third, Mr Higham’s draft report; fourth, the concealment of Mr Donaldson’s file notes dated 12 June 1997; and fifth, the erasure of a line in a copy of a page of Dr Molineux’s notes produced in the context of another proceeding: ASOC [67] and [67A].
211 For the reasons already given, none of the supposed fresh facts identified by Mr Dunstan in his pleading are facts, let alone fresh facts which, by themselves or in combination with previously known facts, would provide any reason for setting aside the judgment of Besanko J.
212 In summary, and at risk of repetition, my reasons for so concluding are as follows. First, Mr Dunstan’s supposed discovery that Mr Higham had falsified his final report is no more than a new theory or argument that Mr Dunstan has conjured up in recent times. Second, Mr Dunstan’s arguments about the fourth day book rise no higher than speculation. It certainly has not been established that there is in fact a fourth day book, or that the book was concealed from Mr Dunstan, or that it contains anything that might conceivably assist Mr Dunstan’s case. Third, Mr Higham’s draft report was discovered in the proceeding before Besanko J and was in evidence in the proceeding before Burns J. It could not in any sense be said to be a fresh fact, let alone one which is capable of supporting Mr Dunstan’s case. Fourth, Mr Donaldson’s file notes were not concealed from Mr Dunstan. They were disclosed subject to a claim of legal professional privilege that appears not to have been disputed. There is no basis for going behind that privilege claim and in any event no basis for supposing that the contents of the file note would assist Mr Dunstan’s claim. Fifth, the supposed erasure of what appears to be an entirely innocuous and irrelevant line in a copy of Dr Molineux’s notes produced in a different proceeding could hardly be said to constitute a fresh fact, let alone a material or even relevant fact which might assist Mr Dunstan’s case.
213 I should add for completeness that at various points Mr Dunstan’s submissions adverted to other documents which he claims were somehow concealed from him by the respondents in the proceedings before Burns J and Besanko J or their legal representatives. I have endeavoured to address all of Mr Dunstan’s claims in that regard. I am unpersuaded that Mr Dunstan has established that any document which was capable of supporting his case was deliberately concealed from him by the respondents or their legal advisers in the course of the litigation.
214 Second, Mr Dunstan’s case in respect of fraud is primarily based on his allegations that Mr Growder, Ms Orr, Mr Higham, and Dr Molineux perjured themselves in the proceeding before Besanko J. Those allegations were effectively rejected by both Burns J and the ACT Court of Appeal. Nothing has changed. In any event, as the authorities referred to earlier indicate, perjury, even if made out, would not ordinarily, let alone necessarily, be sufficient to justify the setting aside of a judgment on the basis that it was obtained by fraud.
215 Third, in reality and in substance, Mr Dunstan is simply endeavouring to relitigate and reagitate claims and allegations that not only did not find favour with Besanko J, but were categorically rejected by Burns J and the ACT Court of Appeal. For the reasons given in detail earlier in the context of the analysis of Mr Dunstan’s claim that the Commonwealth breached its alleged duty of care, Mr Dunstan is effectively estopped from reagitating in this proceeding most, if not all, of the claims and allegations that form the basis of his case that the judgment of Besanko J was obtained by fraud. I should emphasise here, for the sake of clarity, that the issue estoppel or Anshun estoppel that applies in this case arises not from anything that was argued and determined in the proceeding before Besanko J, but rather arises from what was argued and determined in the proceedings before Burns J and the ACT Court of Appeal.
216 Fourth, Mr Dunstan must establish that the other parties to the proceeding before Besanko J were responsible for the alleged fraud in such a way as to render it inequitable that those parties should take the benefit of the judgment. Ms Orr, Mr Higham and Mr Growder were the respondents to the proceeding before Besanko J. To the extent that Mr Dunstan’s case in respect of fraud includes allegations against the Commonwealth, Dr Molineux and the lawyers who acted for the respondents, Mr Dunstan’s pleading and submissions do not identify any material facts which could support a finding that the Commonwealth, Dr Molineux or the legal representatives acted in concert with Ms Orr, Mr Higham or Mr Growder in fraudulently obtaining the judgment. Indeed, that is not even alleged to be the case, at least in any clear or direct terms.
217 It is, of course, a very serious matter to allege that a judgment was obtained by fraud. The Court must also be astute to the public interest in finality. Mr Dunstan has adduced voluminous affidavit and documentary evidence, and advanced detailed and lengthy written and oral submissions. I have carefully considered all that material. I am unpersuaded from Mr Dunstan’s pleading, evidence, and submissions that he has any, let alone any reasonable, prospect of establishing that the respondents to the litigation before Besanko J, or their legal advisers, were party to any actual fraud in respect of the conduct of that litigation.
218 I reiterate that I am of conscious that I must approach the task of assessing whether Mr Dunstan has a reasonable prospect of successfully prosecuting this claim with considerable caution and that I must be satisfied that there is a high degree of certainty that Mr Dunstan’s case is likely to fail. I am comfortably satisfied that Mr Dunstan’s claim that the judgment of Besanko J was obtained by fraud is fundamentally flawed and will almost certainly fail.
219 I should finally add that I find it difficult to comprehend what Mr Dunstan seeks to achieve in pursuing his claim that the judgment of Besanko J was obtained by fraud. The only relief available to Mr Dunstan if he successfully establishes that the judgment of Besanko J was obtained by fraud is the setting aside of that judgment. As discussed earlier, in the proceeding before Besanko J, Mr Dunstan sought to set aside the decisions that culminated in him being suspended from duty and ultimately charged under the Public Service Act. Justice Besanko dismissed Mr Dunstan’s application. If the judgment of Besanko J was set aside, the administrative decisions that were challenged in that case would remain in force with the effect that Mr Dunstan would be in the same position as he was before he challenged the decisions. It may be that Mr Dunstan’s intention, should he succeed in setting aside the judgment of Besanko J, is to again challenge the decisions that resulted in his suspension and charging over 25 years ago. The point of such an exercise is difficult to fathom.
220 That is perhaps a convenient segue to the issue of abuse of process.
Abuse of process
221 I have concluded, for the reasons already given, that Mr Dunstan’s pleading and submissions do not disclose any reasonable cause of action and that I am well satisfied that he has no reasonable prospect of successfully prosecuting either his claim in negligence, his claim that the judgment of Besanko J was obtained by fraud, or the proceeding generally. An element of my reasoning, in arriving at those conclusions, is that in prosecuting this proceeding, Mr Dunstan is effectively seeking to reagitate or relitigate claims and allegations that he made, or should reasonably have made, in the proceeding before Burns J and the appeal from the decision of Burns J in the ACT Court of Appeal. I have found, in that regard, that Mr Dunstan is estopped, either by the principles of issue estoppel or Anshun estoppel, from pursuing the allegations that are central to his causes of action in this proceeding.
222 I should emphasise that, even if the principles of issue and Anshun estoppel do not apply to some or even all of the claims and allegations raised by Mr Dunstan in this proceeding, I am nevertheless firmly of the view that this proceeding is an abuse of process.
223 In Tomlinson, referred to earlier in these reasons, the plurality in the High Court (French CJ, Bell, Gageler and Keane JJ) said as follows (at [24]-[26]) in respect of abuse of process as a result of repeated litigation:
… The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel …
(Footnotes omitted)
224 In UBS AG, also referred to earlier in these reasons, a majority of the High Court applied Tomlinson. Justice Gageler referred (at [66], quoting Johnson at 31) to an earlier decision of the House of Lords in Johnson in which the doctrine of abuse of process was explained in terms consistent with the judgment of the plurality in Tomlinson. His Honour noted that Lord Bingham in Johnson had identified as the “underlying public interest” that “there should be finality in litigation and that a party should not be twice vexed in the same matter” and that the public interest in that respect was “reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole”.
225 While many cases which consider the doctrine of abuse of process do so in the context of an application for a permanent stay, as discussed earlier abuse of process is also a ground upon which summary judgment may be entered.
226 This case involves a clear abuse of process. As I have explained at length earlier in these reasons, all of the claims and allegations upon which Mr Dunstan relies in support of his pleaded causes of action either were, or could and should have been raised, if not in the original proceeding before Besanko J, then certainly in the proceeding before Burns J and on appeal in the ACT Court of Appeal. Nothing whatsoever of substance has changed since Mr Dunstan prosecuted his case before Burns J and on appeal in the ACT Court of Appeal. His multifarious claims that documents or facts were concealed from him, or that he discovered fresh facts after the proceedings before Burns J and the ACT Court of Appeal are, upon analysis, without foundation or merit. At most, Mr Dunstan has refined or tweaked the arguments that he advanced in the earlier litigation. He effectively seeks to reagitate and reargue his case concerning his suspension from work for a third time.
227 To make matters worse, even putting the limitation issues to one side, the events that lie at the heart of Mr Dunstan’s case occurred over 25 years ago. They were first the subject of litigation which concluded over 15 years ago. They were then the subject of further litigation which concluded at first instance over nine years ago and on appeal over seven years ago. There has been a demonstrable and largely unexplained delay between the conclusion of the proceeding on appeal in the ACT Court of Appeal and Mr Dunstan’s commencement of this proceeding.
228 It would, on any view, be demonstrably and unjustifiably oppressive to the parties to this proceeding to permit Mr Dunstan to vex them for a second or even third time in respect of his claims and allegations concerning his suspension from work and charging under the Public Service Act over 25 years ago. It would also be manifestly contrary to the public interest in the finality of litigation and would bring the administration of justice into disrepute.
229 The court should be “astute to protect litigants and the system of justice itself against abuse of process”: UBS AG at [45] (per Kiefel CJ, Bell and Keane JJ). This is a clear case of abuse of process. Judgment should be entered against Mr Dunstan in respect of this proceeding on that basis alone.
No other discernible cause of action
230 Mr Dunstan’s pleading raises many serious allegations against many people. Many, if not most, of those allegations are not clearly tethered to any discernible cause of action, save for the cause of action in negligence and, to a lesser extent, the claim that the judgment of Besanko J was procured by fraud. The parties proceeded on the basis that they were the only two discernible causes of action. Certainly, Mr Dunstan did not identify any other cause of action in his voluminous submissions. I have accordingly proceeded on the basis that those are the only two causes of action in issue.
Conclusion – Summary judgment should be entered against Mr Dunstan
231 For all the foregoing reasons, summary judgment should be entered against Mr Dunstan in respect of this proceeding. His pleading and submissions do not disclose a reasonable cause of action and I am satisfied that he has no reasonable prospect of successfully prosecuting the proceeding. Perhaps more fundamentally, the proceeding is an abuse of process.
SHOULD MR DUNSTAN’S PLEADING BE STRUCK OUT?
232 The respondents contended that, if the Court concluded that summary judgment was not appropriate in the circumstances, the Court should, in the alternative, strike out Mr Dunstan’s pleading on the basis that it discloses no reasonable cause of action and otherwise constitutes an abuse of process.
233 It is unnecessary to address this alternative contention given the finding that it is appropriate to enter summary judgment against Mr Dunstan. Given the possibility, if not likelihood, that Mr Dunstan will seek leave to appeal this judgment, I should make it clear that if, for some reason, summary judgment was considered not to be warranted or appropriate in the circumstances, I would nevertheless have struck out Mr Dunstan’s pleading for essentially the same reasons that I have given for concluding that summary judgment is appropriate.
234 I would also add that Mr Dunstan’s pleading is manifestly deficient and defective, particularly given the serious allegations it contains. While I have endeavoured to make sense of the pleading, it is readily apparent that the serious allegations of fraud made against the respondents are not pleaded with sufficient specificity and clarity to convey to the respondents the precise case that they have to meet. Rather, the pleading contains a series of bare conclusions or broad and sweeping allegations without adequate particularisation. It is also in parts vague and ambiguous and the key elements of the supposed causes of action are not properly pleaded. Were it necessary for me to do so, I would have concluded that most, if not all, of the serious allegations in the pleading could appropriately be characterised as vexatious, scandalous, and embarrassing in the requisite sense referred to earlier in these reasons.
MR DUNSTAN’S OTHER INTERLOCUTORY APPLICATIONS
235 It remains for me to briefly deal with three orders that were sought by Mr Dunstan in an interlocutory application that he filed in apparent response to the respondents’ application for summary judgment. Mr Dunstan’s application for me to recuse myself, which was dismissed, is addressed in a separate judgment: Dunstan v Orr [2022] FCA 1006. Mr Dunstan’s interlocutory application sought three other orders which were to be heard concurrently with the respondents’ summary dismissal application, those orders being: first, that the respondents’ summary dismissal application be summarily dismissed on the basis that it is hopeless, bound to fail and an abuse of process; second, that default judgment be entered against the respondents in this proceeding because they have not filed a defence; and third, that summary judgment be entered in his favour and against the respondents on the basis that the respondents have no reasonable prospects of successfully defending this proceeding.
236 Given the conclusion that I have arrived at concerning the respondents’ application for summary dismissal, these outstanding applications by Mr Dunstan can be dealt with in brief terms. First, given that I have found that the respondents’ application for summary dismissal of the proceeding is meritorious and should be allowed, Mr Dunstan’s contention that the respondents’ application be summarily dismissed because it is hopeless is obviously without merit. Second, having regard to the case management orders that I have made and the fact that summary judgment is to be entered against Mr Dunstan, his application for default judgment is also hopeless and must be dismissed. Third, for essentially the same reasons, Mr Dunstan’s contention that the respondents have no reasonable prospects of successfully defending this proceeding is also hopeless and must be rejected.
237 Accordingly, Mr Dunstan’s application for the orders identified in prayers 4, 5 and 6 of his interlocutory application filed on 20 July 2022 must be dismissed.
CONCLUSION AND DISPOSITION
238 Judgment will be entered for the respondents against the applicant pursuant to s 31A of the FCA Act and r 26.01 of the Rules on the basis that there is no reasonable prospect of the applicant successfully prosecuting the proceedings, no reasonable cause of action is disclosed and the proceeding is an abuse of process. Prayers 4, 5 and 6 of the applicant’s interlocutory application filed on 20 July 2022 and the entirety of the applicant’s interlocutory application filed on 8 June 2022 will be dismissed. The applicant should be ordered to pay the respondents’ costs of the proceeding, including the costs of these interlocutory applications.
I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. |
Associate:
