Federal Court of Australia

Dunstan v Orr [2026] FCA 212

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal dated 28 July 2025 (as amended) be dismissed.

2.    The applicant pay the respondents’ costs of the application for leave to appeal (including the application as amended), to be determined on a lump sum basis.

3.    By 4.00 pm on 27 March 2026, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the respondents’ costs.

4.    In the absence of agreement:

(a)    by 4.00 pm on 10 April 2026, the respondents file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) (Practice Note);

(b)    by 4.00 pm on 24 April 2026, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 and 4.14 of the Practice Note; and

(c)    the matter of an appropriate lump sum figure for the respondents’ costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, Mr Colin Dunstan, seeks leave to appeal from the judgment of a Judge of this Court dated 25 July 2025: Dunstan v Orr [2025] FCA 858 (the Reasons). By that judgment, the primary judge held that the proceeding at first instance should be summarily dismissed. As that order is interlocutory in character, the applicant requires leave in order to appeal from the judgment.

2    The applicant originally filed an application for leave to appeal dated 28 July 2025. However, he subsequently filed and now relies on an amended application for leave to appeal dated 27 January 2026. He also relies on two affidavits of himself dated 28 July 2025 and 27 January 2026. The applicant has provided and relies on an amended draft notice of appeal dated 27 January 2026.

3    In advance of the hearing of the applicant’s application for leave to appeal, the applicant filed an outline of submissions dated 12 February 2026, the respondents filed an outline of submissions dated 12 February 2026, and the applicant filed an outline of submissions in reply dated 16 February 2026.

4    By his draft amended notice of appeal, the applicant seeks to rely on four grounds of appeal:

(a)    the Court erred in proceeding on the basis that the applicant’s amended pleading had been validly taken into account, where the procedural basis upon which it was so taken into account was unclear;

(b)    the Court erred in dismissing the proceeding without resolving, or adequately addressing, the procedural status of the applicant’s amended pleading;

(c)    the Court erred in summarily dismissing the proceeding in circumstances where the procedural treatment of material relied on by the applicant was not apparent from the record; and

(d)    in the alternative, the judgment of the primary judge is affected by procedural error such that it cannot stand.

5    For the reasons that follow, I have concluded that the application for leave to appeal should be dismissed. In summary, I am not satisfied that the judgment of the primary judge is attended with sufficient doubt to warrant its reconsideration by a Full Court.

Background

6    The factual and procedural background is set out in the Reasons at [1]-[6] and [10]-[27]. I adopt that statement of the background. Key elements of the procedural background are as follows:

(a)    In 1998, the applicant commenced a proceeding in this Court in which he sought relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of three decisions made, or allegedly made, under the Public Service Act 1922 (Cth) which related or led to his suspension from duty. That proceeding was heard by Besanko J in July 2007 and dismissed with costs on 25 January 2008: Dunstan v Orr [2008] FCA 31; 217 FCR 559 (the 2008 Judgment).

(b)    The applicant filed an appeal from the judgment of Besanko J. In 2008, however, the appeal was dismissed because the applicant failed to comply with orders in respect of prosecution of the appeal.

(c)    In 2010, the applicant instituted a proceeding in the Supreme Court of the Australian Capital Territory against Mr John Higham, Mr John Growder, Ms Robyn Orr, two other Australian Taxation Office officers and the Commonwealth. The applicant advanced a number of serious claims and allegations against the defendants to the proceeding. That proceeding was heard by Burns J in the ACT Supreme Court over eleven days in 2013. The applicant was represented by counsel. On 27 August 2014, Burns J dismissed each of the applicant’s claims and ordered him to pay the defendants’ costs: Dunstan v Higham [2014] ACTSC 206 (the 2014 Judgment).

(d)    The applicant lodged an appeal against the judgment of Burns J. That appeal was heard in May 2015. The applicant was represented by senior and junior counsel. On 24 June 2016, the Court of Appeal of the ACT Supreme Court dismissed the applicant’s appeal with costs: Dunstan v Higham [2016] ACTCA 20; 310 FLR 58 (the 2016 Judgment).

(e)    In 2021, the applicant commenced a proceeding in this Court in which he contended (among other things) that the 2008 Judgment was procured by fraud and should be set aside. The respondents to the proceeding were Ms Orr, Mr Higham, Mr Growder and the Commonwealth. The respondents brought an application for summary dismissal, which was heard by Wigney J. On 7 December 2023, Wigney J summarily dismissed the proceeding: Dunstan v Orr (No 2) [2023] FCA 1536 (the 2023 Judgment). Wigney J stated that the proceeding was “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]. 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.

Proceeding below

7    On 30 August 2024, the applicant commenced the proceeding below by filing an originating application. By the originating application, the applicant sought orders setting aside the 2023 Judgment. The applicant contended that the 2023 Judgment and the orders giving effect to the judgment were procured by fraud. The applicant also filed a concise statement on 30 August 2024 and a statement of claim on 29 November 2024. The respondents to the proceeding below were the same as the respondents to the proceeding the subject of the 2023 Judgment. As noted at [6] of the Reasons, Mr Growder has died.

8    By an interlocutory application dated 14 March 2025, the respondents applied for summary dismissal (alternatively strike-out) of the proceeding.

9    By an amended interlocutory application dated 7 July 2025, the applicant sought various orders. The orders sought by the applicant are set out in the Reasons at [28].

The Reasons

10    The primary judge concluded that the applicant’s amended interlocutory application should be dismissed with costs and the proceeding should be summarily dismissed with costs. The primary judge’s reasons are encapsulated at [7] of the Reasons:

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.

11    The primary judge dealt with the applicant’s amended interlocutory application at [28]-[59] of the Reasons.

12    The primary judge then considered the respondents’ interlocutory application seeking summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or r 26.01 of the Federal Court Rules 2011. His Honour set out the applicable principles at [60]-[67] of the Reasons. His Honour then considered the application at [68]-[106], concluding that the proceeding should be summarily dismissed. Given that the proceeding was to be summarily dismissed, it was unnecessary to consider the strike-out application: Reasons, [107].

13    The primary judge then stated that the material before the Court raised an issue as to whether a vexatious proceedings order should be made in respect of the applicant. His Honour therefore made orders giving the applicant the opportunity to file evidence and submissions on whether such an order should be made. Subsequently, a hearing took place before the primary judge and the primary judge made a vexatious proceedings order. However, it is common ground before me that that order does not affect the applicant’s ability to pursue his present application for leave to appeal. Further, I do not consider the primary judge’s reasons for making the vexatious proceedings order (Dunstan v Orr (Vexatious Proceedings Order) [2025] FCA 1653) to have any relevance for present purposes.

Orders of primary judge

14    Although the primary judge decided to summarily dismiss the proceeding, the orders that he made on 25 July 2025 did not provide for that to occur immediately. Rather, paragraph 2 of those orders provided that immediately after determination of the process timetabled in paragraphs 4 to 8 of the orders (which related to the issue whether a vexatious proceedings order should be made), pursuant to s 31A of the Federal Court of Australia Act and r 26.01 of the Federal Court Rules, judgment be entered in the respondents’ favour against the applicant in respect of the whole of the proceeding.

Application for leave to appeal

15    The applicant seeks leave to appeal from the judgment of the primary judge.

16    There is no issue between the parties as to the applicable principles in relation to an application for leave to appeal. The applicant for leave must ordinarily show: (a) that the judgment of the primary judge is attended with sufficient doubt to warrant its reconsideration by a Full Court; and (b) that substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

17    The applicant’s proposed grounds of appeal have been set out in the Introduction to these reasons. The proposed grounds of appeal relate to an amended pleading which the applicant had sought to file shortly before the hearing before the primary judge (which took place on 17 July 2025). The proposed grounds may also relate to the way in which the primary judge dealt with two alternative proposed amended statements of claim which were before the primary judge at the hearing on 17 July 2025. Those two alternative proposed pleadings were marked “MFI-1” and “MFI-2”. Copies of those proposed pleadings have been provided to the Court by the parties for the purposes of the present application for leave to appeal.

18    In his affidavit dated 27 January 2026, the applicant refers to lodging an amended statement of claim and receiving an email from Registry on 16 July 2025 stating that it was not possible to determine whether leave would be granted in respect of the amended statement of claim and acceptance for filing would be addressed at an interlocutory hearing the next day. The applicant states that his understanding at that time was that rr 16.51(1) and (4) of the Federal Court Rules permitted the amendment without leave (in circumstances where, he contends, pleadings had not closed). The applicant also states that on 29 July 2025, the Registry accepted the amended statement of claim for filing.

19    In the same affidavit, the applicant states that in his submission an instruction given on 16 July 2025 to Registry not to accept his amended statement of claim for filing raises issues under ss 35 and 35A of the Federal Court of Australia Act, including s 35A(4), which provides that a Registrar is not subject to direction or control in the exercise of powers under that section.

20    The applicant states in the affidavit that issues arise as to whether any unfairness resulted in circumstances where the respondents made no application to dismiss the proceeding on the basis of the amended statement of claim at the hearing on 17 July 2025, and the proceeding was summarily dismissed without such an application having been made.

21    The applicant also states in the affidavit that issues arise as to the procedural basis upon which the amended statement of claim was taken into account in the judgment delivered on 25 July 2025, given that it was not accepted for filing until 29 July 2025.

22    In his outline of submissions, the applicant submits that the procedural history set out in his affidavits “discloses procedural matters which are capable of giving rise to an arguable appeal and which are not confined to findings of fact or the exercise of discretion”.

23    In his outline of submissions in reply, the applicant submits that the proposed appeal raises a specific question of procedural regularity: whether a Court can summarily dismiss a proceeding based on an amended pleading that was not legally before the Court at the time of judgment, and “where the filing of that pleading had been hindered by an irregular judicial direction”.

24    In my opinion, these contentions and submissions are without merit.

25    At [23] of the Reasons, the primary judge referred to the fact that, at the hearing, the applicant “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”. The primary judge noted that the applicant submitted that he was entitled to file an amended statement of claim without leave because pleadings had not closed (relying on r 16.51(1)), and that the respondents submitted that leave was required and that, in any event, they could apply for an order disallowing any amendment. The primary judge stated at [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.

26    In my opinion, it is clear from the above paragraph that the primary judge assessed the respondents’ application for summary dismissal against each of: the statement of claim; the first alternative proposed amended statement of claim; and the second alternative proposed amended statement of claim. In other words, it would have been enough for the applicant to succeed (in defeating the application for summary dismissal) if any of those documents disclosed a reasonably arguable cause of action and was not an abuse of process. See also the Reasons at [7], [77], [78], [95], [105], [107].

27    In my opinion, the “practical approach” adopted by the primary judge was conventional and not productive of any unfairness to the applicant. The fact that the amended statement of claim which the applicant had lodged with Registry had not been accepted for filing before the hearing on 17 July 2025 made no substantive difference to the way in which the primary judge dealt with the respondents’ application for summary dismissal. Indeed, the applicant was better off under the approach taken by the primary judge because the judge considered all three documents, rather than just the amended statement of claim that the applicant had lodged, in determining whether the applicant had a reasonable cause of action that was not an abuse of process.

28    If and to the extent that the applicant contends that a direction was given contrary to s 35A(4) of the Federal Court of Australia Act, that contention also lacks merit. The applicant’s affidavit dated 28 July 2025 annexes a copy of the email he received from Registry on 16 July 2025, which stated:

Dear Mr Dunstan

It is not possible to determine whether leave will be granted in respect of the statement of claim today. [The primary judge] has indicated that whether it will be accepted for filing can be addressed at tomorrow’s interlocutory hearing. You should bring a sufficient number of hard copies to provide one to your opponent and to the Court.

29    It is not apparent from this email or the applicant’s affidavit material that any direction was given to a Registrar in relation to the manner in which they exercised any power pursuant to s 35A(1).

30    For these reasons, none of the applicant’s proposed grounds of appeal raises a sufficient doubt as to the correctness of the primary judge’s decision to warrant its reconsideration by a Full Court.

31    As the applicant has failed to satisfy the first limb of the usual test for leave to appeal, it is unnecessary to consider the second limb (relating to substantial injustice).

32    There are no other circumstances which make it appropriate to grant leave to appeal.

Conclusion

33    For these reasons, the application for leave to appeal is to be dismissed.

34    At the hearing, it was accepted by both parties that if the application for leave to appeal were dismissed, costs should follow the event. I will therefore also make an order that the applicant pay the respondents’ costs of the application for leave to appeal. In accordance with usual practice, these costs will be determined on a lump sum basis.

Associate:

Dated:    6 March 2026

SCHEDULE OF PARTIES