Federal Court of Australia

Dunstan v Orr [2025] FCA 858

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended interlocutory application filed on 7 July 2025 be dismissed.

2.    Immediately after determination of the process timetabled in orders 4 to 8 below, 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.

3.    The applicant pay the respondents’ costs of the proceeding to the date of these orders, including all interlocutory applications.

4.    By 15 August 2025, the applicant is to file any evidence and submissions on which he intends to rely on the question of whether the Court should make an order (s 37AO(2)(b) order) substantially in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), Mr Colin George Dunstan be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the Federal Court Act.

5.    By 29 August 2025, the respondents file and serve any evidence and submissions on the question of whether the Court should make a s 37AO(2)(b) order and the terms of any such order.

6.    If the respondents file evidence and submissions as permitted by Order 5, the applicant file and serve any evidence and submissions in reply by 5 September 2025.

7.    By 5 September 2025, the applicant is to notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the s 37AO(2)(b) order ought to be made and, in the absence of such notification, the issue as to whether the proposed order ought to be made is to be dealt with on the papers.

8.    Any oral hearing in relation to the making of the s 37AO(2)(b) order under Pt VAAA, Div 2 of the Federal Court Act is to be listed for hearing on a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J

INTRODUCTION

1    These reasons address interlocutory applications brought by the applicant and respondents. By an interlocutory application dated 14 March 2025, the respondents applied for summary dismissal (alternatively strike-out) of proceedings brought by the applicant, Mr Colin Dunstan. By an amended interlocutory application dated 7 July 2025 (amending an interlocutory application dated 16 June 2025 which had been filed after a hearing date had been set for the respondents’ interlocutory application), Mr Dunstan sought various orders, including an order that his interlocutory application be heard before the respondents’ interlocutory application.

2    In the originating application filed on 30 August 2024 by which this proceeding was commenced, Mr Dunstan seeks orders setting aside the orders made in Dunstan v Orr (No 2) [2023] FCA 1536 (Wigney J) (2023 Judgment). Mr Dunstan contends that the 2023 Judgment and the orders giving effect to the judgment were procured by fraud. Mr Dunstan has also filed a concise statement on 30 August 2024 and a statement of claim on 29 November 2024.

3    In the proceeding heard by Wigney J, Mr Dunstan alleged “that the Commonwealth [was] liable to him in the tort of negligence because the officers who were involved in the events that led to his suspension [from the Australian Taxation Office (ATO)] gave false evidence and concealed documents in … previous proceedings that were determined adversely to him” and that “the judgment in the first of those previous proceedings [Dunstan v Orr [2008] FCA 31; 217 FCR 559 (Besanko J) (2008 Judgment)] was procured by fraud and should be set aside”: 2023 Judgment at [1].

4    Wigney J summarily dismissed Mr Dunstan’s proceeding. His Honour described the proceeding the subject of the 2023 Judgment as “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 … ATO … way back in July 1997”: 2023 Judgment at [1]. Wigney J concluded that “it would be an affront to the administration of justice to permit Mr Dunstan to pursue the proceeding any further”: 2023 Judgment at [3].

5    More specifically, Wigney J’s conclusions in the 2023 Judgment included that:

(a)    Mr Dunstan’s pleading, considered together with the evidence he had adduced and the submissions he had made, did not disclose a reasonable cause of action in negligence: at [198]; see also [105]–[197], [221].

(b)    Mr Dunstan had no reasonable prospect of establishing that he had 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 in the 2008 Judgment: at [210].

(c)    Whilst Mr Dunstan’s pleading raised many serious allegations against many people, those allegations were not clearly tethered to any discernible cause of action apart from the cause of action in negligence and the claim that the judgment of Besanko J was procured by fraud: at [230].

(d)    By the proceeding, Mr Dunstan was 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: at [215].

(e)    Mr Dunstan had no, 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: at [217].

(f)    The proceeding was an abuse of process irrespective of the application of any principles of issue and Anshun estoppel and judgment should be entered against Mr Dunstan in respect of the proceeding on that basis alone: at [222]–[229].

6    The respondents in the proceeding the subject of the 2023 Judgment were Ms Robyn Orr, Mr John Higham, Mr John Growder and the Commonwealth of Australia. They are also the respondents in the present proceeding, although – as is explained further below – Mr Growder has died. In the context of considering whether the proceeding was an abuse of process, Wigney J stated at [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.

7    As is explained further below, the present proceeding (including Mr Dunstan’s amended interlocutory application) is an abuse of process much like the proceeding before Wigney J, save only that the degree of abuse is compounded by this being yet another proceeding in which Mr Dunstan seeks to revisit issues which have in substance already been litigated and determined. The proceeding should be dismissed on that basis alone, irrespective of the existence of any issue or Anshun estoppel and irrespective of whether a reasonable cause of action has been pleaded. Further, however, Mr Dunstan’s pleading, and his proposed amended pleadings, do not disclose a reasonably arguable cause of action that Mr Dunstan has any prospect, let alone any reasonable prospect, of successfully prosecuting.

8    Mr Dunstan’s amended interlocutory application should be dismissed with costs and the proceeding should be summarily dismissed with costs.

9    As is explained below, after reviewing the evidence, submissions and procedural history in order to determine the interlocutory applications, and after concluding that Mr Dunstan’s amended interlocutory application should be dismissed and that the proceeding should be summarily dismissed, I formed the view that the circumstances raised the question whether grounds might exist for the Court possibly to be satisfied that a vexatious proceedings order might be made against the applicant under s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), with the effect of prohibiting Mr Dunstan from instituting proceedings in the Court without first obtaining the leave of the Court. Notwithstanding the exceptional nature and seriousness of making such an order, and acknowledging that the potential impact of such an order on Mr Dunstan’s rights would be significant if it were ultimately made, weight must be given to the need to protect Court resources so that they are not used in re-litigating issues which have already been determined by this and other Courts and to the potential unfairness visited on the respondents in repeatedly being required to meet proceedings concerning events which occurred many years ago and which have already been the subject of judicial determination. Accordingly, orders will be made for the consideration and determination of this further issue before orders are made finally dismissing the proceeding.

BACKGROUND

10    A general summary of the factual background to the claims made by Mr Dunstan in the proceeding which led to the 2023 Judgment is set out at [5]–[23] of the 2023 Judgment. It is repeated here for convenience (emphasis in original):

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 Higham 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.

11    In the 2023 Judgment, and relevantly to the issues which arise on the interlocutory applications which these reasons address, Wigney J summarised two of the many proceedings instituted by Mr Dunstan in the following terms (emphasis in original):

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.

12    In the 2023 Judgment, Wigney J summarised the nature of the proceedings then brought by Mr Dunstan in the following way:

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 Molineux 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.

13    As mentioned, the respondents sought summary dismissal of the proceeding before Wigney J. Immediately before the hearing of the summary dismissal application, Wigney J rejected an application by Mr Dunstan for the production by the respondents of certain documents, raising issues which, although approached in a somewhat different manner, Mr Dunstan again in substance raises in the present proceeding.

14    Wigney J granted the respondents’ application for summary judgment for reasons given in the 2023 Judgment at [103]–[231]. In summary, his Honour concluded that Mr Dunstan’s “pleading and submissions do not disclose a reasonable cause of action … that he has no reasonable prospect of successfully prosecuting the proceeding” and that “[p]erhaps more fundamentally, the proceeding is an abuse of process”: at [231].

15    On 19 December 2023, Mr Dunstan filed an application for leave to appeal from the orders made by Wigney J: Exhibit MCM-1 at page 1086. Mr Dunstan also filed a draft notice of appeal and a supplementary notice of appeal.

16    On 16 June 2024, Mr Dunstan sought to commence a further proceeding in this Court, seeking to have the orders made by Wigney J set aside on the ground that those orders had been procured by fraud. He sought to file amended documents in that regard on 23 June 2024.

17    Exercising the function in r 2.26 of the Federal Court Rules 2011 (Cth), a Registrar of the Court refused to accept Mr Dunstan’s originating application and other documents for filing. The Registrar’s reasons included that the proposed proceeding:

-     as a matter of form … and substance seeks to appeal the decision of Justice Wigney in circumstances where the only avenue for appeal is an application for leave to appeal; and

-     appears to be an attempt to re-litigate proceedings that have already been litigated.

18    The Registrar’s decision was set aside by orders made on 28 August 2024: Dunstan v Morgan [2024] FCA 982 (2024 Judgment).

19    In the 2024 Judgment, Kennett J concluded that the Registrar had erred in refusing to accept the documents for filing and remitted the issue for reconsideration.

20    On 29 August 2024, the day after Kennett J made orders and delivered reasons, Mr Dunstan discontinued his application for leave to appeal from the orders made by Wigney J. The originating application and concise statement commencing this proceeding were lodged and accepted for filing on 30 August 2024.

21    As mentioned, the respondents applied for summary dismissal of the proceeding or, alternatively, orders striking out the pleadings. By orders made on 13 December 2024, that interlocutory application was listed for hearing on 17 and 18 July 2025 with a timetable for the filing of evidence and submissions.

22    On 16 June 2025, Mr Dunstan filed an interlocutory application seeking various orders, including orders directed to documents he had sought before Wigney J and in other proceedings, and for his interlocutory application to be heard before the respondents’ interlocutory application. That interlocutory application was amended on 7 July 2025.

23    At the hearing, Mr Dunstan provided two further statements of claim identifying what he would plead if any of the arguments advanced by the respondents found favour with the Court. Mr Dunstan relied first on a lengthier proposed statement of claim (MFI 1) and, alternatively, on a shorter proposed statement of claim (MFI 2). Mr Dunstan submitted that he was entitled to file an amended statement of claim without leave of the Court because pleadings had not closed – see: r 16.51(1). Mr Dunstan also relied on r 16.51(4) in relation to events which had occurred since the proceeding started. The respondents submitted that leave was required and that, in any event, the respondents have a right under r 16.52(1) to apply for an order disallowing an amendment made pursuant to the right in r 16.51(1) if it applied.

24    At the hearing, the Court indicated it proposed to take the practical approach of permitting the filing of one or other of the proposed amended statements of claim if the filing of them would not constitute an abuse of process and one or other of them disclosed a reasonable cause of action that would not be summarily dismissed under s 31A. No party objected to this course.

25    The final matter to mention by way of background is that the Court was informed at the commencement of the hearing that the third respondent had died. The remaining respondents submitted that there was, at that time, no personal representative of the third respondent’s estate. The Court reserved liberty to the respondents and any present or future personal representative of the third respondent to apply.

26    The interlocutory applications were heard on the same day, with the parties first addressing Mr Dunstan’s amended interlocutory application and then the respondents’ interlocutory application. Mr Dunstan addressed the Court first. Mr Clark SC addressed the Court next. Mr Dunstan made submissions in reply.

27    Given the order in which the issues were addressed, it is convenient first to address Mr Dunstan’s amended interlocutory application.

MR DUNSTAN’S INTERLOCUTORY APPLICATION

28    The orders Mr Dunstan sought in the amended interlocutory application filed on 7 July 2025 were as follows:

1.    That this application be heard before the hearing of the respondents’ interlocutory application dated 14 March 2025 to address preliminary issues arising in the preparation for the hearing of the application.

2.    That the question of the waiver of privilege of redacted parts of documents filed in affidavit evidence by Ms McKean raised in correspondence between the parties be answered.

2A.    That the question of waiver of privilege of documents of the third respondent John Growder consequent upon his death be addressed.

3.    That the question of breaches of professional conduct standards by the legal representatives representative Ms McKean, Mr Parkinson and Mr Smyth be answered.

4.    That the question of … whether the legal representatives for [the] respondents have received advice from the respondents relevant to professional conduct and duty to the Court amounting to admissions of wrongdoing be answered, and further:

a.    That the respondents are ordered to produce to the Court all communications about, consenting to or directing an allegation of misconduct be made against the Applicant in Ms McKean’s affidavit of 14 March 2025 at [14] and that she did not resile from in her email of 25 June 2025 to the Applicant.

5.    That the question of Ms McKean having dealings with the Court which may reasonably give the appearance that Ms McKean has special favour with the Court be answered.

6.    Further orders that the Court considers appropriate in the circumstances.

29    The respondents’ position was, in summary, that Mr Dunstan’s amended interlocutory application should be dismissed because, like the proceeding instituted by him, it constituted an abuse of process by seeking to re-litigate issues which had already been decided. The respondents submitted that, in any event, none of the relief sought by Mr Dunstan in the amended interlocutory application should be granted for various other reasons.

Order 1

30    As mentioned, Mr Dunstan’s amended interlocutory application was addressed immediately before the respondents’ interlocutory application. Order 1 has been superseded by events.

Order 2

31    The second order sought by Mr Dunstan concerned documents which Mr Dunstan sought in the proceeding the subject of the 2023 Judgment, namely notes made by Dr Molineux in 1997 and two file notes made by Mr Raymond Donaldson of the ATO in 1997. Mr Dunstan did not expressly seek production of the documents; rather, he sought an order that the “question of waiver of privilege … be answered”. As will be seen the central complaint advanced by Mr Dunstan is that no-one has “answered” his question as to whether privilege in those documents was waived by the disclosure to Mr Dunstan of other privileged communications. Mr Dunstan appeared to accept that the relevant parts of the contentious documents would be privileged had privilege not allegedly been waived.

32    There was also reference in argument to the “National Office Minute” from Mr Higham dated 29 July 1997. It is uncontroversial that an unredacted version of that document is in Mr Dunstan’s possession: Dunstan 1 14 May 2025 at page 40. Mr Dunstan stated that he received the unredacted version of the “National Office Minute” from the ATO in 2009: T34.29. This is one of the documents relied upon by Mr Dunstan as giving rise to the question whether privilege has been waived in the Molineux or Donaldson notes.

33    Wigney J addressed the interlocutory application brought by Mr Dunstan in the 2023 proceedings, and the Molineux notes more specifically, at [72]–[75] of the 2023 Judgment:

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.

34    Mr Dunstan’s primary contention in the present proceeding was that Wigney J did not address his submission that, although the Molineux notes may once have been privileged, that privilege had subsequently been waived, such that – as at the time of his application before Wigney J – legal privilege in the notes no longer subsisted.

35    On this application, Mr Dunstan appeared to concede that the Molineux notes were privileged at the time the relevant notes were made (or did not seek to revisit that issue): T35.19–20. Mr Dunstan’s question was whether that privilege had later been waived by the disclosure of other legally privileged material: T35.21–3.

36    It is sufficient to record three difficulties with the relief which Mr Dunstan seeks in this respect.

37    First, Mr Dunstan did not establish a reasonable basis to conclude that privilege in the redacted portions of the Molineux notes had or might have been waived or that any such waiver occurred at a relevant time – for example, at the time the proceeding giving rise to the 2008 Judgment was heard – or how, even if there had been a waiver, that could lead to a conclusion of fraud. If Mr Dunstan had documents at the relevant time which he contended led to a conclusion that privilege in other documents had been waived, he could have and should have so contended at the relevant time.

38    Mr Dunstan did not adduce sufficient evidence, or make a sufficiently cogent case, for the Court to exercise any discretion it might have to examine the redacted parts of the Molineux notes (or the Donaldson notes).

39    Secondly, before Wigney J, Mr Dunstan did not establish any legitimate forensic purpose for production of the Molineux (or Donaldson) notes in the proceeding. It followed that production ought to have been refused, as it was, irrespective of any question of privilege or waiver. On this application, Mr Dunstan stated that he “wasn’t attempting to argue that it had forensic value” and that he could only know if it had forensic value if he first saw the document in unredacted form: T106. This submission misses the point that Mr Dunstan had to establish that there was some legitimate forensic purpose in seeking production, which ordinarily would require identification of the potential relevance of the document to issues which properly arose for consideration or determination in the proceeding. A document’s forensic value once produced is a different issue.

40    Thirdly, if it is the case that Wigney J failed to address an argument about waiver or addressed it incorrectly, then that matter would properly be the subject of appeal, not collateral challenge before a second trial judge.

41    Mr Dunstan did not seek production of the Molineux notes by his amended interlocutory application dated 7 July 2025. There is no proper basis to order that Mr Dunstan’s question about waiver be answered.

42    Wigney J addressed the application for production of the Donaldson file notes at [76]–[78]. At [77] and [78], his Honour’s reasons included:

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.

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 …

43    This reasoning addressed the substance of the waiver argument which Mr Dunstan had put. Even if Wigney J failed to address an argument about waiver or addressed it incorrectly, then that matter would properly be the subject of appeal, not collateral challenge before a second trial judge.

44    Wigney J also rejected the application for production on the basis that, 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. Further, Wigney J concluded that, “perhaps most fundamentally, Mr Dunstan failed to demonstrate any legitimate forensic purpose for requiring the production of the two file notes”: at [78].

45    As Wigney J observed, the privilege claims over the Donaldson file notes were determined by Mansfield J in Dunstan v Orr [2007] FCA 652 at [4]; Exhibit MCM-1 at 343–7. That decision was not apparently questioned, and no suggestion of subsequent waiver was advanced, when the substantive case was heard and determined by Besanko J in 2008.

46    On this application, Mr Dunstan submitted that privilege over the Donaldson file notes was waived when the respondents provided two documents to him – a file note prepared by Mr Growder dated 18 June 1997 (Dunstan 1 14 May 2025 pages 56–9) and an email from Ms Benson sent on 25 August 1998 (Dunstan 1 14 May 2025 pages 54–5).

47    The same submission about the Growder file note was made to Wigney J and rejected in the 2023 Judgment: at [77]–[78]. Mr Dunstan did not articulate an acceptable reason why this Court should depart from the ruling made by Wigney J.

48    As to the Benson email, Mr Dunstan did not identify how its disclosure could sensibly result in a potential waiver of privilege in the Donaldson file notes.

49    Mr Dunstan did not satisfy Wigney J that there was a legitimate forensic purpose behind his seeking production of the Donaldson file notes. The forensic purpose, if there was one, has not been explained.

50    Mr Dunstan did not seek production of the Donaldson file notes in this proceeding. There is no proper basis to order that Mr Dunstan’s question about waiver be “answered”.

Order 2A

51    At the hearing, Mr Dunstan abandoned the relief sought by paragraph 2A: T76.44–5.

Orders 3 to 5

52    The third to fifth orders sought in the amended interlocutory application concern a variety of matters, including allegations that the respondents’ solicitor had breached certain professional obligations. The central complaint in this respect was about [14] of an affidavit affirmed by Ms McKean in which she summarised background facts in a manner which Mr Dunstan considered purposefully misrepresented those facts. Although not entirely clear, Mr Dunstan appeared to suggest that the terms of the paragraph were crafted by the ATO. The relevant affidavit was not read, but the paragraph forms a part of Mr Dunstan’s shorter alternative amended statement of claim (MFI 2), which is further addressed at [96] below. The relevant paragraph of the affidavit stated:

In early 1997, concerns arose in the ATO about the applicant’s access to restricted electronic data held by the ATO.

53    In his submissions filed on 16 June 2025, in support of his (unamended) interlocutory application dated 16 June 2025, Mr Dunstan also accused the respondents’ previous counsel in this proceeding of lying “to cover up the lie told by Ms McKean” and therefore also of breaching certain ethical obligations: at [12]. Those counsel no longer appear, and Mr Dunstan no longer pursues an order that “question of breaches of professional conduct standards by [them] … be answered”. He pursues such an order only in relation to Ms McKean.

54    Mr Dunstan was concerned that [14] of Ms McKean’s affidavit was misleading in that it inaccurately suggested that he had accessed restricted electronic data, rather than having attempted to access restricted electronic data: T109.6–110.28. The latter, he submitted, was a justifiable performance of his duty; the former, however, would have justified his termination and would “certainly be a reason for describing all of my [Mr Dunstan’s] processes as vexatious”: T110.11–12.

55    As mentioned, Ms McKean’s affidavit was not read, but was relied upon for the purposes of Mr Dunstan’s shorter alternative proposed amended statement of claim (MFI 2). I do not consider the statement in [14] of the affidavit was intended to, or objectively does, assert that Mr Dunstan in fact accessed restricted electronic data held by the ATO at the relevant time (about 28 years ago). The paragraph sought only to summarise the background of complex and lengthy litigation for the purposes of addressing the real issues in dispute on the present applications.

56    Paragraph 14 of the affidavit (which was not read) is not capable, either alone or in combination with other pleaded facts, of founding a reasonable cause of action against the respondents on the basis put forward in the various statements of claim, namely that the 2023 Judgment was procured by fraud. In particular, as is discussed further at [96] below, there is no sensible connection between [14] of the affidavit and the reasons for the 2023 Judgment, which adopt Mr Dunstan’s preferred description of the ATO’s perception of his conduct as “attempting to access files”: at [13].

57    Mr Dunstan’s allegations of “special favour” being given to the respondents’ solicitor centred on Mr Dunstan having difficulty uploading documents onto the Court’s electronic file, being difficulties apparently not encountered by the respondents’ solicitor. Assuming that these events occurred, and there is no reason to think that difficulties are not encountered from time to time in the uploading of documents (particularly of lengthy documents), the evidence did not establish that this was anything other than a random event which occurred in the ordinary course. Nor did Mr Dunstan articulate any connection between his difficulties in filing documents with the Court and any dealings with the Court by the respondents’ solicitors that were on terms of “informal personal familiarity”.

58    Mr Dunstan also suggested that there was some form of inappropriate or improper dealing between the Court and the ATO, although he later appeared to put this in the “field of a hypothesis at the moment” which “may become an allegation”: T44–48. His submissions in this respect centred on the length of time (13 days) it took the Registrar not to accept his documents for filing. These allegations were not shown to have any reasonable foundation, assessed from the perspective of an objective and rational bystander.

59    Mr Dunstan’s amended interlocutory application must be dismissed.

THE RESPONDENTS’ INTERLOCUTORY APPLICATION

Summary dismissal principles

60    Section 31A(2) authorises summary judgment in favour of a respondent if the Court “is satisfied that the [applicant] has no reasonable prospect of successfully prosecuting the proceeding”. It provides:

(2)    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.

61    The concept of having “no reasonable prospect of success” must be understood through the lens of s 31A(3):

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

62    Thus, as s 31A(3) expressly provides, “a proceeding need not be ‘hopeless’ or ‘bound to fail’ for it to have no reasonable prospect of success”: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [17] (French CJ and Gummow J).

63    In Spencer at [22], French CJ and Gummow J observed that s 31A might apply in a number of situations, including to proceedings which constituted an abuse of process:

… The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

64    Rule 26.01 also provides for summary judgment where there is “no reasonable prospect of successfully prosecuting the proceeding”. It expressly covers situations where “the proceeding is frivolous or vexatious” or “no reasonable cause of action is disclosed” or “the proceeding is an abuse of the process of the Court”.

65    Seeking to re-litigate issues determined in earlier proceedings, or raising issues that should have been raised in earlier proceedings, can constitute an abuse of process, regardless of whether the facts also give rise to a merger or res judicata in the strict sense; a claim (or cause of action) estoppel (see Clayton v Bant [2020] HCA 44; 272 CLR 1 at [28]); or an Anshun estoppel – see: Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 256 (Mason CJ), 287–90 (McHugh J); Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [26] (French CJ, Bell, Gageler and Keane JJ); UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [43] (Kiefel CJ, Bell and Keane JJ), [68] (Gageler J).

66    The power to give judgment for one party against another is not to be exercised lightly: Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ).

67    Exercise of the power conferred by s 31A(2) requires a practical judgment about an applicant’s prospects of success. As French CJ and Gummow J observed in Spencer at [25]:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

Consideration

68    As has been mentioned, the relief sought by Mr Dunstan in his originating application is that the orders made by Wigney J be set aside on the basis that those orders were procured by fraud. The concise statement and statement of claim also raise claims for damages on the bases mentioned earlier.

Principles relevant to setting a judgment aside for fraud

69    The circumstances in which a judgment might be set aside for fraud were considered by the New South Wales Court of Appeal in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (Kirby P, Hope and Samuels JJA agreeing). The Court of Appeal observed that such proceedings were well-established in Australian law, independent of an appeal and equitable in origin and nature: at 537. The requirements were summarised by French J in Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262 at [60] and by Robertson J in SZSXT v Minister for Immigration and Border Protection [2013] FCA 1440 at [67]. The requirements relevant to a private law case may be summarised as follows.

70    First, the essence of the action is fraud: Spalla at [60] (proposition 1). Fraud means actual fraud: Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; 264 CLR 165 at [2] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). In Clone at [55], the High Court set out with apparent approval the following observations of Sir John Rolt LJ in Patch v Ward (1867) LR 3 Ch App 203 at 212–3:

I think, for the reasons which have been given by my learned brother, that the fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. Mere constructive fraud not originating in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance, would probably not be sufficient – at all events I think could not, after such delay as has occurred in this case, be deemed sufficient – to set aside the order which has been made. What, therefore, the Appellant has to do is to satisfy the Court that the decree was obtained by the positive and actual fraud and contrivance of the party obtaining it.

71    It goes without saying that the allegation of fraud must be established by the strict proof which such a charge requires.

72    Second, actual fraud must be proved by evidence not available to the moving party before the judgment was delivered, namely by “fresh evidence”: Clone at [64], [65]; Storry v Parkyn [2024] FCAFC 67 at [16] (Lee, Feutrill and Jackman JJ). The party asserting that a judgment was procured by fraud must show that there was a “new discovery” (a discovery after the judgment was delivered) of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, provide a reason for setting aside the judgment: Spalla at [60] (proposition 2).

73    Third, although it necessarily follows from what has already been said, “[m]ere suspicion of fraud raised by fresh facts later discovered will not be sufficient to secure relief”: Spalla at [60] (proposition 3).

74    Fourth, although perjury by the successful party or a witness may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where proof of perjury could suffice without more to warrant relief (see also Clone at [53]; Baker v Wadsworth (1898) 67 LJQB 301; Cabassi v Vila (1940) 64 CLR 130 at 148 (Williams J); McDonald v McDonald [1965] HCA 45; 113 CLR 529 at 544 (Menzies J)), proof of perjury will not normally be sufficient to attract the exceptional relief of setting aside a judgment: Spalla at [60] (proposition 4). In SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [16], the High Court observed that “except in very exceptional cases, fraud constituted by perjury by a witness or witnesses acting in concert is not a sufficient ground for setting aside a judgment”.

75    Fifth, “[i]t must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge”: Spalla at [60] (proposition 5). It would generally be insufficient to show that an agent of the successful party was convicted of giving perjured evidence in the impeached previous proceeding; rather, it would need to be established that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: SZSXT at [67].

76    Sixth, the onus 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: Spalla at [60] (proposition 6).

Mr Dunstan’s statements of claim

77    Mr Dunstan’s statement of claim and the proposed alternative statements of claim are not easy to follow, but centre on three broad topics. These topics are at the heart of Mr Dunstan’s case: the Higham Report; the Molineux notes; and the role of Ms Orr and her evidence. The matters raised by Mr Dunstan, including in relation to each of these topics, do not include any newly discovered facts capable of supporting a case for setting aside a judgment as being procured by fraud. Rather, by the statement of claim (and its proposed alternatives), Mr Dunstan is effectively seeking to re-litigate matters of fact and issues which have already been determined adversely to him. An example of how these topics interrelate is contained in [5AA] to [5AC] of the lengthier proposed statement of claim (MFI 1) which includes:

5AA    The essential elements of the Applicant’s proceeding before Wigney J are straightforward. The challenge and goal of counsel for the Respondents was to deceive and mislead Wigney J to procure summary judgment to deny the Applicant a hearing on questions of fact and law on fraud in the Besanko proceeding that are:

a.    The respondents procured the decision in the Besanko proceeding heard in July 2007 by fraud.

b.    The intent of the fraud was to avoid a judgment that the first respondent Robyn Orr was required under the Public Service Act 1922 to recall the Applicant to duty on or immediately after 29 July 1997.

c.    To achieve this result, the respondents concealed from Besanko J evidence that Robyn Orr had any knowledge that enlivened her statutory obligation to recall the Applicant to duty.

d.    Several omissions and misleading statements in the evidence given to Besanko J were either essential or helpful to achieve the goal:

i.    Robyn Orr omitted evidence of her role after 4 June 1997 when she suspended the Applicant from duty, and gave oral evidence that she was not involved after that date,

ii.    John Growder omitted evidence that he had any role after 18 June 1997 and denied receiving a minute that John Higham addressed to him on 29 July 1997,

iii.    John Higham omitted evidence that he performed any activity as the “authorised officer” after 10 July 1997 and added misleading evidence that he was busy on other duties.

iv.    John Higham fabricated a report that he said he wrote in September or October 1997 so there could be no suspicion aroused by an AGS solicitor giving expansive reasons in a letter in 1998. This letter detailed John Higham’s reasons for his decision after John Higham refused to give the Applicant a statement of reasons for his October 1997 decision.

v.    The Personal Manager John Whyte who guided John Higham in his role as “authorised officer” was kept out of the proceeding and gave no evidence.

vi.    Diaries kept by John Molyneux of activities, meetings and conversations with officers of the Fourth Respondent about terminating the Applicant’s employment in 1997 were concealed.

e.    Unplanned disclosures shortly before the Besanko hearing in July 2007 interfered with but ultimately did not derail the respondents’ goal of obtaining the decision they intended.

i.    A draft report dated 11 July 1997 that was identical to the report that John Higham included in his affidavit of 2007 in the Besanko proceeding where the ONLY differences were that the draft included his name as the author and had a date on which he wrote it,

ii.    A minute date 30 July 1997 by Geoff Seymour, the immediate superior of John Growder, and the First Assistant Commissioner of Information Technology Services of the ATO. The final paragraph of this minute began with the sentence:

“Mr Dunstan must immediately return to work from suspension”, and

iii.    A description of a document, but not the document, dated 29 July 1997 by John Higham addressed to John Growder and John Whyte, a Personal Manager reporting to Robyn Orr:

“29 July 1997 - National Office Minute from John Higham to John Growder and John Whyte both of the ATO which contains advice from Tony Burslem of the AGS and attaches a draft report by John Higham of the ATO and a document titled ‘Your Password Your Access YOUR Responsibility’.”

f.    The above unplanned disclosures did not prevent the respondents’ achieving their intended goal of obtaining the decision by fraud in the Besanko proceeding:

i.    John Higham when pressed in cross-examination on the description of minute he wrote on 29 July 1997 and the implication of the minute of Geoff Seymour written on 30 July 1997 claimed he could not remember any minute he wrote dated 29 July 1997.

ii.    John Higham when pressed in cross-examination on why he could not make a decision on 29 July 1997 and the implication that his reasons he wrote on 11 July 1997 were precisely identical to the anonymous and undated report he annexed to his affidavit, gave false evidence that he was busy preparing to go overseas and could not complete his role as “authorised officer” until October 1997.

5AB    The planned fraud, together with John Higham’s hastily constructed oral evidence at the hearing before Besanko J in July 1997 necessitated by the above unplanned disclosures shortly before the hearing, were successful.

5AC    Besanko J remained unaware of Robyn Orr’s knowledge that she obtained on or very soon after 29 July 1997 that required her to recall the Applicant to duty. In his decision Besanko J accepted and relied upon the false and misleading evidence of John Higham:

120    As I have already said (at [55]), at about the time the second respondent made his decision to charge the applicant and in fact charged him, he prepared a report which set out the course of events and details of his decision. It is in similar terms to the statement of his reasons set out in the letter from the AGS dated 28 July 1998 (see [56] above). There was a draft of the report as early as 11 July 1997, and other than the date and the second respondent’s name, the draft report and the report are in the same terms. The applicant submitted that in those circumstances the second respondent had been guilty of unreasonable delay and had failed to decide to charge, or to charge, or both, “as soon as practicable” after forming the opinion required by s 61(2).

121    The second respondent gave evidence, which I accept, that he was very busy in July and August 1997 and that he was required to travel overseas in order to carry out a research project. He was overseas from late August to late September 1997.

78    To the extent that there are new allegations made by Mr Dunstan in the lengthier proposed statement of claim (MFI 1) – for example, it is possible that the allegation that “John Whyte who guided John Higham in his role as ‘authorised officer’ was kept out of the proceeding and gave no evidence” is a new allegation – these were allegations of facts occurring and known to Mr Dunstan before 21 September 2022 (the date of the hearing before Wigney J) and they should have been raised before Wigney J. None of them are “fresh facts” capable of supporting an order setting aside a judgment as having been procured by fraud.

The Higham Report

79    In relation to the Higham Report and as noted earlier, Mr Dunstan contended before Wigney J that the undated Higham Report was created in 2007, rather than 1997, and was being alleged by the respondents to have been created in 1997 to mislead the Court: 2023 Judgment at [19]. Mr Dunstan in substance repeated those submissions on this application and claimed that the respondents’ submissions before Wigney J were variously “misleading”, “obfuscating”, “confused” and “mischievous”: statement of claim at [9]. In the lengthier proposed statement of claim (MFI 1), certain of the respondents’ King Counsel’s submissions to Wigney J were said to be deceitful and misleading and amounting to sophistry: at [12A], [12B], [15A] to [15C], [16A]. Much of the statement of claim comprises extracted sections of transcript or submissions from the proceeding the subject of the 2023 Judgment that Mr Dunstan asserts were false or misleading. Mr Dunstan was necessarily aware of the submissions at the time those submissions were made. They were directed to answering the case which had been advanced by Mr Dunstan. Mr Dunstan disagrees with the accuracy of the respondents’ submissions and presumably disagreed with the submissions at the time they were made. If the submissions were false or misleading, that was or should have been apparent to Mr Dunstan at the time of the hearing before Wigney J. Mr Dunstan implicitly accepted that he addressed the respondents’ submissions before Wigney J, claiming in his written submissions that Wigney J did not consider his written and oral submissions on the allegations of fraud by John Higham: at [49].

80    The submissions made by the respondents, through their legal representatives, to Wigney J are not “fresh facts” discovered after the 2023 Judgment.

81    Mr Dunstan contended that there was a “new discovery” of a “fresh fact” when the judgment was delivered and he discovered the effectiveness of the alleged deception: statement of claim at [28].

82    It is difficult to see that the acceptance by a judge of a submission made by a party can constitute a “fresh fact” capable of supporting relief of the kind sought by Mr Dunstan. The same may be said about the result in the proceedings. Mr Dunstan had the opportunity to correct submissions which were made and with which he disagreed.

83    Further, Mr Dunstan in fact addressed Wigney J at length. The submissions made by the respondents were known to Mr Dunstan and it was an obvious possibility that Wigney J might accept the respondents’ submissions.

84    The respondents’ and Mr Dunstan’s evidence and submissions were considered by Wigney J in the 2023 Judgment. It would be an abuse of process to permit essentially the same case to be re-litigated via the device of a broad ranging and imprecise allegation that the respondents’ submissions were fraudulently made.

85    No “fresh facts” have been identified in relation to the first topic in the statement of claim which could possibly found an arguable case for setting aside the 2023 Judgment on the basis of fraud. This aspect of Mr Dunstan’s case has no prospect of success.

The Molineux notes

86    The Molineux notes are the primary subject of [19]–[22] of the statement of claim (and proposed statements of claim). The Molineux notes were notes made by Dr Molineux of the meeting at which Mr Dunstan was suspended from duty. In proceedings in the ACT Supreme Court in 2013, the Molineux notes were produced under subpoena. Claims for privilege over parts of the notes were upheld by Burns J and were not challenged by Mr Dunstan’s Queen’s Counsel on appeal. As mentioned, unredacted versions of the notes were sought by Mr Dunstan in the proceeding before Wigney J, but that application was rejected by Wigney J: 2023 Judgment at [72]–[79].

87    Although it is somewhat difficult to discern from the statement of claim, it appears that Mr Dunstan’s case is that:

(a)    in various other previous proceedings, unredacted versions of the Molineux notes should have been discovered or produced but were not; and

(b)    the submissions of the respondents in the proceeding before Wigney J “conceal[ed] the seriousness” of this alleged omission.

88    This case involves an attempt to re-litigate issues already determined in other proceedings and, even if established, has no prospect alone or in combination with the other pleaded facts of resulting in the orders made by Wigney J being set aside as having been procured by fraud. Wigney J decided not to revisit the correctness of the earlier privilege ruling over the Molineux notes (2023 Judgment at [75]), pointed out that Mr Dunstan had the redacted Molineux notes and was aware of the existence of unredacted copies since at least the 2013 Proceedings (at [141]), and rejected any suggestion that the material was concealed in previous proceedings (at [142]). As Wigney J also identified, Mr Dunstan failed to identify how the redacted sections of the Molineux notes might have assisted his case or were relevant to the perpetration of any fraud: 2023 Judgment at [144].

89    Mr Dunstan contended that the 2023 Judgment failed to consider “fresh evidence revealed on the morning the hearing commenced” and the issue of the respondents failing to provide discovery of the notes in 2007 and 2011: statement of claim at [27]. To the extent that this pleading was directed to a case that the 2003 Judgment was procured by fraud, the evidence given at a hearing cannot constitute a “fresh fact” for the purposes of establishing that a judgment given after the hearing was procured by fraud. To the extent that the pleading contends that evidence or issues were not considered by Wigney J, those matters would be the proper subject of an appeal, not a collateral attack in further proceedings. It is appropriate also to observe that the contentions appear to have no merit.

90    Mr Dunstan failed to identify how the redacted sections of the Molineux notes are relevant to the perpetration of any fraud affecting the 2023 Judgment. It would be an abuse of process to allow Mr Dunstan to repeat arguments about fraud allegedly perpetrated in the concealment of the Molineux notes that he has already made and that have already been rejected. This aspect of Mr Dunstan’s case has no prospect of success.

The role of Ms Orr

91    The third broad topic addressed in Mr Dunstan’s statements of claim concerned the role of Ms Orr in suspending Mr Dunstan from duty on 4 June 1997: statement of claim at [23]–[26] and [28]–[29]. In essence, Mr Dunstan contended that the respondents’ submissions in the proceeding before Wigney J “concealed”, by mischaracterising his case, the fraud that Mr Dunstan submitted affected the 2008 Judgment: statement of claim at [24].

92    This aspect of Mr Dunstan’s case is again an attempt to re-litigate issues already decided against him, including in the 2023 Judgment. Mr Dunstan had the opportunity to reply to the respondents’ allegedly misleading submissions, which themselves were directed to responding to the case which Mr Dunstan had brought. Wigney J accepted the arguments put by the respondents over those put by Mr Dunstan. There is no arguable case that his Honour’s acceptance of the arguments was procured by fraud in the relevant sense. This aspect of Mr Dunstan’s case has no prospect of success.

Abuse of process and no reasonable cause of action capable of being successfully prosecuted

93    Mr Dunstan submitted that his case was not barred by any Anshun or issue estoppel. He submitted that Anshun estoppel might apply where something should have been, but was not, raised in a proceeding and that an issue estoppel arises where something is raised by a party in a proceeding and that issue was determined in the resulting judgment: T107.4–24. Mr Dunstan submitted:

[I]n each of the cases where points are made about Anshun estoppel and issue estoppel, it’s my submission that where [the respondents] have said I should have raised something, I think, from the information I provided, you will see that it was raised. And when they argue that there is issue estoppel because a judgment was made, the judgment did not address the argument that was raised. And that’s particularly true here. I was saying, is this – is privilege waived over this document?

94    As mentioned above, a proceeding can constitute an abuse of process even if the relevant facts do not give rise to an Anshun or issue estoppel – see: [65] above. The difficulty which Mr Dunstan faces is that, in substance, he is seeking to re-litigate issues which have been determined against him in other proceedings. This is not changed by an argument that principles of Anshun or issue estoppel do not apply or by the addition of some new arguments and some new factual allegations. For example, for the reasons given earlier, his argument – emphasised in his submissions set out above – that questions of waiver of privilege have not been determined and should now be “answered” does not have the result that the proceeding is not an abuse of process.

95    Mr Dunstan has not identified a cause of action which he wishes to advance which does not constitute an abuse of process. His argument that the 2023 Judgement was procured by fraud is ultimately no more than a further attempt, which he has no reasonable prospect of successfully prosecuting, to seek to revisit the case against the respondents which he has been pursuing for many years and had determined against him. This is made abundantly clear in the paragraphs of the lengthier proposed amended statement of claim (MFI 1) set out above.

96    The shorter proposed amended statement of claim (MFI 2) differs from the statement of claim by the addition of [29A] to [29H]. These paragraphs assert fraud in the present proceedings by virtue of [14] of Ms McKean’s affidavit, referred to earlier. It is asserted in MFI 2 that this contained “a fraudulent allegation intended to deceive and mislead the Court”: at [29A]. It is asserted in [29D] that counsel previously appearing for the respondents in this proceeding also made a fraudulent statement intended to deceive the Court about Ms McKean’s (allegedly) false allegation. It alleges that the respondents’ new counsel “compound the offensiveness of the false allegation”, but does not appear to accuse them of fraud: at [29F]. Ultimately, these paragraphs all concern [14] of Ms McKean’s affidavit. That paragraph is not capable of forming a “fresh fact” establishing fraud of a kind which would warrant setting aside an earlier judgment for fraud, it not being possible that it could have affected the reasons for making the 2023 Judgment. Nor is the conduct of the respondents’ previous counsel in this proceeding.

97    Mr Dunstan also contended that his discovery of a publication by the Australian Government Solicitor (AGS) about its duties to the Court, and of cases bearing on the legal principles relevant to setting aside a judgment for fraud, constituted “fresh facts”: statement of claim at [30]–[32]. The AGS publication could not have played any operative part in Wigney J making the relevant orders. The publication cannot constitute a “fresh fact” capable of justifying an order setting aside a judgment for fraud. Perhaps needless to say, the discovery of authorities or cases relevant to the general principles applicable to setting aside a decision for fraud cannot itself be a basis for setting aside a judgment for fraud.

98    Each of the bases said by Mr Dunstan to be potentially capable of justifying an order setting aside the 2023 Judgment enjoy no reasonable prospect of success, whether individually or taken as a whole.

99    Even if the facts alleged by Mr Dunstan were proved, he has not been able to point to any “new discovery” of a “fresh fact” that would provide a reason for setting aside the 2023 Judgment. Leaving aside (a) the publication of the article by the AGS, (b) the existence of cases bearing on the principles relevant to setting aside a judgment for fraud and (c) the fact that Ms McKean affirmed an affidavit which contained what was said in [14] of that affidavit, the prospect of any of the matters alleged being proved by Mr Dunstan is also fanciful.

100    Further, even if it were established that a fraud was committed which led to Wigney J making the orders which he did, that would not disturb the fact that the proceeding before Wigney J was an abuse of process which ought to have been summarily dismissed. That is, any misrepresentation of the facts or asserted fraud could not have affected the conclusion that the proceeding was an abuse of process. Mr Dunstan does not challenge in this proceeding the factual findings which inexorably led Wigney J to the conclusion that the proceeding before his Honour was an abuse of process.

101    These conclusions are reached acknowledging that the task must be approached with considerable caution and that there must be a high degree of certainty that the case is likely to fail: Spencer at [24]. Although it is not necessary that Mr Dunstan’s case to be hopeless or bound to fail for it to have no reasonable prospect of success, in this case it is hopeless, and it is bound to fail: Spencer at [17].

102    Mr Dunstan’s claim is an abuse of process in that it seeks to re-litigate issues that have been resolved against him in other proceedings and, at least in substantial part, seeks to attack the 2023 Judgment in collateral proceedings, rather than by an appeal. It is unjustifiably oppressive to the surviving respondents (and the estate of the third respondent, Mr Gowder) that they are required repeatedly to meet essentially the same allegations (sometimes with permutations or additions), particularly given the absence of any prospect of success. Mr Dunstan submitted that he was trying to use the Court’s processes rather than abuse them, submitting (T17.7–12):

MR DUNSTAN: - - - Australia is well-served by having a reliable judicial system of courts and tribunals. That’s why we don’t have people wandering around with duelling pistols to resolve the conflicts, so I wouldn’t like to abuse the process. I like to see actually using the process, and I would like to see it come to a conclusion rather than just feel like I’m being pummelled [by people] who think I’m a terrible ogre.

103    Abuse of process comes in a variety of forms. Here, the abuse lies in the attempt to re-litigate issues which have already been determined, including by the mechanism of asserting that judgments were procured by fraud. That abuse exists whether or not Mr Dunstan understands that is what he is doing, and irrespective of whether he genuinely believes that, underlying all that has gone before, he was wronged in some way. Those issues have been thoroughly explored by many judges and Mr Dunstan was unsuccessful. His continuing attempts to revisit what has been judicially determined constitute an abuse of process.

104    Allowing the present proceeding to continue would involve an unwarranted use of judicial resources and would bring the administration of justice into disrepute as a result of the Court permitting its resources and processes to be used in the manner described earlier – see: UBS at [43] and [68].

105    This is not a case in which Mr Dunstan has shown he has a reasonable cause of action, or reasonable prospects of success, but merely failed to disclose that case in his pleadings (the statement of claim) or proposed pleadings (MFI 1 and MFI 2): White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [47]. Having regard to what has been said earlier, and to MFI 1 and MFI 2, it is clear that a further opportunity to replead will not improve Mr Dunstan’s position.

106    For these reasons, subject to what is said below, this proceeding should be summarily dismissed under s 31A of the Federal Court Act.

Application for strike-out

107    Given that Mr Dunstan’s case will be summarily dismissed, it is unnecessary to decide whether his statement of claim should be struck out under r 16.02. Had it been necessary to decide, it would have been appropriate to strike-out Mr Dunstan’s statement of claim. The statement of claim does not disclose a reasonable cause of action. Neither do the two proposed alternative statements of claim.

VEXATIOUS PROCEEDINGS ORDERS

108    The review of the material in the course of considering and deciding these interlocutory applications has given rise to a further issue.

109    Section 37AO of the Federal Court Act confers on the Court a power to make “vexatious proceedings orders” that include, under ss 37AO(2)(b), an order prohibiting the person from instituting proceedings (or proceedings of a particular type) in the Court.

110    The Court is empowered to make such an order if satisfied that the person has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”, which is determined having regard to matters that may include the proceedings that have been instituted, the orders that have been made in those proceedings, and the person’s “overall conduct” in those proceedings – see: ss 37AO(1)(a) and (6).

111    The Court can initiate a process on its own initiative to ascertain whether the Court “could be satisfied that [a litigant] has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals and, if this was established, that a vexatious proceedings order could follow”: Storry at [40]–[43]; see also Ogawa v Australian Information Commissioner [2025] FCAFC 37; Ferdinands v Registrar Burns [2024] FCAFC 105.

112    Having reviewed the submissions and procedural history in this case and determined that the proceedings are an abuse of process, I have concluded that it is appropriate to commence a process to determine whether an order under s 37AO should be made.

113    As is explored in earlier sections of this judgment, Mr Dunstan is a frequent litigant.

114    These reasons for judgment resolve an attempt to set aside a previous decision for fraud (the 2023 Judgment), which itself resolved an attempt to set aside a previous decision for fraud (the 2008 Judgment). The proceeding the subject of 2023 Judgment was, in substance, Mr Dunstan’s second attempt to set aside the 2008 Judgment, having brought (and been unsuccessful in) a proceeding in the ACT Supreme Court based on allegations that certain documents had been concealed from Besanko J and certain witnesses had given false evidence: Dunstan v Higham [2014] ACTSC 206 (Burns J). Mr Dunstan appealed against the orders made by Burns J and was represented by Queen’s Counsel in the appeal. His appeal was dismissed: Dunstan v Higham [2016] ACTCA 20. Mr Dunstan applied to the ACT Court of Appeal to set aside the orders dismissing his appeal and that application was also rejected: Dunstan v Higham (No 2) [2016] ACTCA 28 (Elkaim J). He also applied to the High Court for special leave to appeal, which was refused: Dunstan v Higham [2016] HCASL 308.

115    Mr Dunstan has also been involved in at least the following litigation in this Court, all of which appear to relate to the circumstances surrounding his suspension from duty as an officer of the ATO in 1997: Dunstan v Morgan [2024] FCA 982; Dunstan v Orr (No 2) [2023] FCA 1536; Dunstan v Orr [2022] FCA 1589; Dunstan v Orr [2022] FCA 1006; Comcare v Dunstan [2014] FCAFC 21; Dunstan v Comcare [2011] FCAFC 108; Dunstan v Holland [2008] FCA 1450; Dunstan v von Doussa (No 2) [2008] FCA 827; Dunstan v Orr [2008] FCA 736; Dunstan v von Doussa [2008] FCA 97; Dunstan v Orr [2008] FCA 31; Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326; Dunstan v Orr [2007] FCA 873; Dunstan v Orr [2007] FCA 652; Dunstan v Comcare [2007] FCA 504; Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 191; Dunstan v Comcare [2006] FCA 1655; Dunstan v Seymour [2006] FCA 917; Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916; Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885; Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137; Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284; Dunstan v Seymour [2002] FCA 1195.

116    While the potential impact on Mr Dunstan’s rights in making an order under s 37AO is likely to be significant if it is ultimately made, weight must be given to the need to protect Court resources and avoid repeated abuses of the procedures of the Court.

117    To give Mr Dunstan an opportunity to address the issue, it is appropriate to make orders that he file any evidence and submissions he intends to rely on in addressing the question of whether an order should be made in the following (or substantially similar) terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), Mr Colin George Dunstan be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the Federal Court Act.

118    Orders will also be made permitting the respondents to file any evidence and submissions, should they wish to be heard on the issue.

CONCLUSION AND ORDERS

119    For the foregoing reasons, it is appropriate to summarily dismiss Mr Dunstan’s case immediately after determination of the question whether to make an order under s 37AO of the Federal Court Act.

Associate:

Dated:    25 July 2025