Federal Court of Australia

Dunstan, in the matter of an application by Dunstan [2026] FCA 1527

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to institute a proceeding filed on 14 January 2026 be dismissed.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.     INTRODUCTION    

1    The applicant, Mr Colin Dunstan, is subject to a vexatious proceedings order made by a judge of this Court under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth): see Dunstan v Orr (Vexatious Proceedings Order) [2025] FCA 1653 (J). As a result, Mr Dunstan is prohibited from instituting in this Court any proceeding (including an appeal from the vexatious proceedings order) without a prior grant of leave in accordance with s 37AR of the Act.

2    Mr Dunstan now seeks leave to institute an appeal to the Full Court of this Court from the vexatious proceedings order.

3    For the reasons developed below, leave to institute the appeal should be refused.

B.     BACKGROUND

4    Mr Dunstan has a lengthy and somewhat complex litigation history in this Court and in other courts and tribunals in Australia. That litigation history has its genesis in events relating to Mr Dunstan’s suspension from duty as an officer of the Australian Taxation Office almost 30 years ago, in 1997. That history is set out in detail by Wigney J in Dunstan v Orr (No 2) [2023] FCA 1536 (2023 judgment) and the primary judge in Dunstan v Orr [2025] FCA 858 (25 July 2025 judgment); and is conveniently summarised by Moshinsky J in Dunstan v Orr [2026] FCA 212 (2026 judgment).

5    Of immediate relevance, on 30 August 2024 Mr Dunstan commenced a proceeding, which I will refer to as the 2024 proceeding, in which he sought to set aside orders made by Justice Wigney in the 2023 judgment by which his Honour dismissed Mr Dunstan’s application to set aside orders made by Justice Besanko in 2008 in Dunstan v Orr [2008] FCA 31; (2008) 217 FCR 559. Mr Dunstan contended that the orders made by each of Justices Besanko and Wigney had been procured by fraud.

6    On 25 July 2025, the primary judge, inter alia, ordered that: (1) there be judgment in the respondents’ favour in the 2024 proceeding (25 July 2025 judgment order), with such order to take effect immediately after the determination of whether a vexatious proceedings order should be made against Mr Dunstan; and (2) initiated a process for ascertaining whether the Court could or should make such an order: see the 25 July 2025 judgment.

7    On 31 July 2025, Mr Dunstan applied for leave to appeal from the orders made on 25 July 2025.

8    On 12 December 2025, the primary judge conducted a hearing as to whether a vexatious proceedings order could or should be made and on 19 December 2025, the primary judge made the vexatious proceedings order. The 25 July 2025 judgment order thus became operative on that day.

9    On 19 February 2026, Justice Moshinsky heard Mr Dunstan’s application for leave to appeal from the 25 July 2025 judgment order. On 6 March 2026, his Honour dismissed that application, for the reasons set out in the 2026 judgment.

C.     REASONS OF THE PRIMARY JUDGE

10    The primary judge, at J[4], provided a broad overview of the proceedings to which Mr Dunstan had been a party to since 1997:

In their submissions, the respondents provided to the Court a table identifying litigation in which Mr Dunstan has been a party. The table refers to 30 judgments, two special leave dispositions and 11 tribunal decisions, divided into four streams of litigation:

•    proceedings connected to Mr Dunstan’s suspension from duty at the ATO in 1997 (ATO litigation);

•    proceedings related to complaints made to the Human Rights and Equal Opportunity Commissioner regarding events during Mr Dunstan’s time at the ATO;

•    Mr Dunstan’s private prosecution of two of his former colleagues, Mr John Growder and Mr Geoff Seymour; and

•    Mr Dunstan’s litigation in relation to his Comcare entitlements (Comcare litigation).

(bold emphasis in original)

11    After setting out the general principles related to the power to make a vexatious proceedings order under s 37AO of the Act at (J[6] to [11]), the primary judge addressed the question of whether Mr Dunstan had frequently instituted vexatious proceedings at J[12] to [17] and concluded that he done so:

12     Mr Dunstan has frequently instituted vexatious proceedings. This conclusion is based solely on what has been described earlier as the “ATO litigation”, and includes the following proceedings:

(a)     The “Besanko J Proceedings”:

(i)     Dunstan v Orr [2007] FCA 652 (Mansfield J);

(ii)     Dunstan v Orr [2007] FCA 873 (Buchanan J);

(iii)     Dunstan v Orr [2008] FCA 31; 217 FCR 559 (Besanko J); and

(iv)     Dunstan v Orr [2008] FCA 736 (Stone J);

(b)     The “Stone J Proceedings”:

(i)     Dunstan v Holland [2008] FCA 1450 (Stone J);

(c)     The “Burns J Proceedings”:

(i)     Dunstan v Highman [2010] ACTSC 133 (Jagot J);

(ii)     Dunstan v Higham [2014] ACTSC 206 (Burns J);

(iii)     Dunstan v Higham [2016] ACTCA 20; 310 FLR 58 (Murrell CJ, Penfold and Rangiah JJ);

(iv)     Dunstan v Higham (No 2) [2016] ACTCA 28 (Elkaim J).

(v)     Dunstan v Higham [2016] HCASL 308 (Bell and Nettle JJ);

(vi)     Dunstan v Higham (No 3) [2020] ACTCA 50 (Mossop J); and

(vii)     Dunstan v Higham [2021] HCASL 43 (Keane and Edelman JJ);

(d)     The “Wigney J Proceedings”:

(i)     Dunstan v Orr [2022] FCA 1006 (Wigney J);

(ii)     Dunstan v Orr [2022] FCA 1589 (Burley J); and

(iii)     Dunstan v Orr (No 2) [2023] FCA 1536 (Wigney J);

(e)     The “Thawley J Proceedings”:

(i)     Dunstan v Morgan [2024] FCA 982 (Kennett J); and

(ii)     Dunstan v Orr [2025] FCA 858 (Thawley J).

13     Without restating in detail the circumstances of the ATO litigation – which are summarised in [2023] FCA 1536 and [2025] FCA 858 – Mr Dunstan has repeatedly sought to relitigate issues connected with his suspension from duties at the ATO that have either already been finally determined or should have been raised in earlier proceedings. He continues to prosecute claims concerning, among other things: the circumstances in which his duties associated with the ATO were suspended; the subsistence of privilege in certain documents; alleged deliberate concealment of documents; and the supposed procurement of judgments by fraud.

14     The ongoing pursuit of these issues is an abuse of process and is vexatious in circumstances where: (a) the issues have been decided or should have been raised in earlier proceedings; and/or (b) the pursuit of the issues by asserting the judgments were procured by fraud enjoys no prospect of success.

15     Although the proceedings comprising the ATO litigation are not especially numerous, the term “frequently” is relative and contextual, and a small number of proceedings can suffice to enliven the Court’s power if those proceedings relitigate issues previously determined: Storry (Vexatious Proceedings Order) at [66]. Mr Dunstan submitted that his applications were not as numerous as those in other cases where vexatious proceedings orders have been made. Whilst that may be accepted, the real issue is whether the conditions for making the order are satisfied and, if so, whether an order should be made and in what form.

16     Although Mr Dunstan enjoyed some success in the “Comcare litigation”, and the proceedings in that litigation are not vexatious, that does not immunise the ATO litigation from constituting “vexatious proceedings”. Mr Dunstan was represented in most of the Comcare litigation. It concluded more than 10 years ago.

17     Mr Dunstan has instituted vexatious proceedings sufficiently often in Australian courts to satisfy the conditions in s 37AO(1).

(italic emphasis in original; bold emphasis added)

12    The primary judge then considered whether he should exercise the discretion that had been enlivened so as to make a vexatious proceedings order, and concluded that the making of such an order was necessary and appropriate. At J[18] to [20], the primary judge reasoned:

18     It is appropriate to make an order under s 37AO(2)(b). While the making of such an order is a serious matter for Mr Dunstan, it is necessary and appropriate to protect the Court and the respondents from the expense and waste of time involved in adjudicating repetitious proceedings initiated by Mr Dunstan. It is not in the interests of justice that Mr Dunstan be allowed to continue to prosecute proceedings which are an abuse of process. It is relevant that the individual respondents in the present proceeding have been respondents to Mr Dunstan’s claims since the Besanko J Proceedings, which were initiated in 1997. They are now in their 70s. One has died.

19     As the Full Court observed in Laverack (Formerly AZO24) v Commonwealth of Australia (Vexatious Proceedings Order) [2025] FCAFC 162 at [29], the “import of s 37M(3) of the Federal Court Act requires that the Court not remain passive and [that it] take appropriate steps to identify early and quell abuses of the Court’s processes”.

20     The likelihood is that, absent an order under s 37AO(2)(b), Mr Dunstan will continue to attempt to litigate issues which ultimately stem from his suspension from duty at the ATO. In substance, Mr Dunstan has had some application or other on foot concerning his suspension from duty at the ATO since he commenced the Besanko J proceedings, which were dismissed on 25 January 2008. Mr Dunstan has made it clear that his intention is to pursue the issues, including those which arise out of the proceedings in which he has been involved. This is in part because of Mr Dunstant’s (sic) apparent belief that his pursuit of these issues is in the public interest.

(italic emphasis in original; bold emphasis added)

13    The primary judge then addressed various submissions made by Mr Dunstan at J[21] to [23].

14    The primary judge next considered, at J[26] to [30], the appropriate form of the vexatious proceedings order and concluded that an unlimited order was appropriate.

15    The primary judge noted, at J[31], that although he had the power to order a stay of Mr Dunstan’s application for leave to appeal the 25 July 2025 judgment order, he was not inclined to make such an order in the circumstances and in fairness to Mr Dunstan. The primary judge had earlier noted at J[3] that there was no such stay in place, that Mr Dunstan had applied for leave to appeal the 25 July 2025 judgment order, and that his application was yet to be determined.

16    The primary judge then addressed Mr Dunstan’s various other submissions at J[32] to [42], before concluding at J[43] that the vexatious proceedings order should be made.

D.     LEAVE TO INSTITUTE THE APPEAL

17    I turn now to the question of whether Mr Dunstan should be granted leave to institute his proposed appeal against the vexatious proceedings order.

D.1     Legal framework and principles

18    As previously noted, Mr Dunstan requires leave under s 37AR of the Act to institute any proceeding: s 37AQ of the Act. Leave is necessary to file an appeal from a vexatious proceedings order: see, e.g., Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 at [18] (Besanko, Logan and McKerracher JJ); Mbuzi v Griffith University [2015] FCA 862 at [9] (Rangiah J); Agapis [2017] FCA 286 at [2] (McKerracher J); Hii v Commissioner of Taxation [2020] FCA 1452 at [14] (Greenwood J) and Pekar, in the matter of Pekar [2021] FCA 362 at [2] (Wheelahan J).

19    Relevant to the determination of Mr Dunstan’s application for leave to institute his appeal are ss 37AS and 37AT of the Act, which provide:

37AS    Dismissing application for leave

(1)     The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).

(2)     The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

(3)     The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

37AT  Granting application for leave

(1)     Before the Court makes an order granting an application under section 37AR for leave to institute a proceeding, it must:

(a)     order that the applicant serve:

(i)     the person against whom the applicant proposes to institute the proceeding; and

(ii)     any other person specified in the order;

with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

(b)     give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

(2)     At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3)     The Court may make an order granting the application. The order may be made subject to the conditions the Court considers appropriate.

(4)     The Court may grant leave only if it is satisfied the proceeding is not a vexatious proceeding.

20    The Court cannot grant leave to institute a proceeding which it considers to be a vexatious proceeding: s 37AS(2) of the Act. Further, before leave can be granted, the Court must be satisfied that the proposed proceeding is not a vexatious proceeding: s 37AT(4) of the Act.

21    In this regard, “vexatious proceeding” is defined in s 37AM of the Act as including “a proceeding that is an abuse of the process of a court…” and “a proceeding instituted or pursued in a court … without reasonable ground”.

22    In the context of an application for leave to institute an appeal, a proposed proceeding will be considered an “abuse of process” and/or “without reasonable ground” if the Court is satisfied that it has no reasonable grounds or has otherwise been instituted without merit so that it is in effect “bound to fail”: see Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); Garrett, in the matter of Company One [2016] FCA 703 at [8] to [20] (Charlesworth J); Crocker, in the Matter of Debra Ann Crocker [2024] FCA 1423 at [34] to [36] (Meagher J); Mbuzi at [16]. Conversely, an applicant for leave need show only that the proposed proceeding is reasonably arguable: Crocker, in the matter of Crocker [2019] FCA 432 at [12] (Logan J); and Lawrence, in the matter of Lawrence [2026] FCA 1507 at [34] (Younan J).

23    For the reasons which follow, I am satisfied that none of the proposed grounds of appeal raised by Mr Dunstan have any reasonable prospects of success and thus that the proposed appeal is without reasonable ground and a vexatious proceeding.

D.2    Proposed appeal grounds 1, 2 and 7: no basis to make vexatious proceedings order

24    It is convenient to address proposed grounds 1, 2 and 7 together. Those proposed grounds are:

1.     Error in principle in making the vexatious litigant order

The Court erred in principle in making a vexatious litigant order under s 37AO of the Federal Court of Australia Act 1976 (Cth) in circumstances where, at the time the order was proposed and made, the only proceeding in prospect was an application arising from an appeal against the judgment delivered on 25 July 2025, and there was no basis to conclude that further proceedings were likely to be instituted.

2.     Error in the exercise of discretion

The Court erred in the exercise of its discretion by making a vexatious litigant order that was not reasonably necessary to protect the Court or the Respondents from the institution of vexatious proceedings.

…

7.     Disproportionality

The Court erred by making a vexatious litigant order that was disproportionate to the Appellant’s litigation history and to the limited scope of proceedings then in prospect, and which did not serve the protective purpose of s 37AO of the Federal Court of Australia Act 1976 (Cth).

(italic and bold emphasis in original)

25    Mr Dunstan’s submissions in support of these grounds are, in summary, that: (1) the only extant proceeding at the time that the vexatious proceedings order was made was his application for leave to appeal the 25 July 2025 judgment order; (2) that application provided no sound basis for the primary judge to conclude that each of the conditions in s 37AO of the Act had been satisfied, for reasons including the absence of the requisite frequency of proceedings; (3) there was no basis for the primary judge to have concluded that Mr Dunstan was likely to institute any further proceedings so as to justify the making of such a vexatious proceedings order; and (4) the scope of the vexatious proceedings order as made was disproportionate.

26    These submissions operate upon the premise that the primary judge was entitled to take into account only proceedings on foot as at the date of the making of the vexatious proceedings order. No basis for this premise was provided and it is plainly false. In considering whether the preconditions for the enlivenment of the discretion to make a vexatious proceedings order exist, the nature of the inquiry required by s 37AO(1) of the Act (as informed by s 37AO(6) of the Act) is broad and expressly permits the Court to have regard to, inter alia, any proceeding which has been instituted (or attempted to be instituted) in any Australian court or tribunal, as well as the subject person’s overall conduct in any such proceeding; and is not restricted to extant proceedings. In considering, as a matter of discretion, whether to make a vexatious proceedings order once the preconditions for the enlivenment of the discretion have been found to exist, the history of proceedings is directly relevant to the assessment of the future risk of vexatious proceedings and thus centrally relevant to the exercise of the discretion: see e.g., Garrett at [19].

27    When the history of proceedings is taken into account, there is no reason to doubt that the preconditions for the enlivenment of the discretion existed.

28    Further, Mr Dunstan cannot succeed in challenging the exercise of discretion by the primary judge unless he establishes an error of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 to 505 (Dixon, Evatt and McTiernan JJ):

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

29    Proposed grounds 1, 2 and 7 disclose no reasonable prospect of establishing an error of the kind described in House v The King.

30    For the above reasons, there is no reasonable prospect of proposed grounds of appeal 1, 2 and 7 succeeding on appeal.

D.3    Proposed appeal ground 3: effect of vexatious proceedings order on the appeal from the 25 July 2025 orders dismissing the 2024 proceeding

31    Proposed appeal ground 3 is:

3.     Imposition of an unjustified procedural impediment to an appeal

The Court erred by making a vexatious litigant order which had the practical effect of requiring the Appellant to obtain leave to institute proceedings in relation to an appeal arising from the judgment delivered on 25 July 2025, notwithstanding that the possibility of such an order had been foreshadowed in that judgment.

(bold emphasis in original)

32    Mr Dunstan submits that ground 3 raises a separate “procedural” or “sequencing issue” in that the vexatious proceedings order had the effect, in its practical operation, of wrongly prohibiting him from pursuing his appeal of the 25 July 2025 judgment order. Mr Dunstan also submits that the 25 July 2025 judgment order was “treated as non-operative for the purposes of the appeal, while being used as the basis for making a vexatious litigant order”. I understand by these submissions Mr Dunstan to be contending that he was in some way prevented from pursuing an appeal from the 25 July 2025 judgment order.

33    That contention cannot succeed. As noted above, the primary judge expressly declined to stay Mr Dunstan’s application for leave to appeal from the 25 July 2025 judgment order. Further, as also noted above, Mr Dunstan pursued such an application, which he filed on 31 July 2025, within days of the 25 July 2025 orders, and that application was heard and determined.

34    Proposed ground of appeal 3 has no reasonable prospects of success.

D.4    Proposed appeal grounds 4, 5 and 6: failure to engage with submissions and evidence and procedural fairness

35    Grounds 4, 5 and 6 of Mr Dunstan’s draft notice of appeal – which concern a challenge to the primary judge’s consideration of Mr Dunstan’s evidence and submissions – can also be dealt with together. Those proposed grounds are:

4.     Failure to engage with relevant submissions and evidence

The Court erred by failing to engage with, or by materially mischaracterising, submissions and documentary evidence relied upon by the Appellant, including submissions and evidence that were not disputed by the Respondents and were relevant to the exercise of the discretion under s 37AO.

5.     Mischaracterisation of the Appellant’s submissions

The Court erred by characterising the Appellant’s submissions as allegations of judicial misconduct, when those submissions were directed to matters of procedural history and conduct evidenced by documents filed by the Respondents or their legal representatives.

6.     Denial of procedural fairness

By mischaracterising, omitting, or failing to engage with significant submissions and evidence advanced by the Appellant, the Court denied the Appellant procedural fairness in the determination of whether to make a vexatious litigant order.

(bold emphasis in original)

36    None of these proposed grounds of appeal are reasonably arguable, for the following reasons.

37    First, the evidence and submissions that Mr Dunstan contends were not taken into account or were mischaracterised are not identified in the proposed grounds of appeal, nor are they identified with any particularity in Mr Dunstan’s submissions (including his post-hearing submissions) and affidavit evidence on this application. This is so, despite the Court’s express invitation to Mr Dunstan during the hearing of the application to provide such particularisation in post-hearing submissions and his indication that he would do so (T4.8 to 5.15).

38    Secondly, the evidence and submissions that are referred to in Mr Dunstan’s submissions and affidavit evidence on this application are largely evidence and submissions in the 2024 proceeding concerning the application for summary dismissal of that proceeding. Relatedly, much of Mr Dunstan’s challenge appears to be to findings made by the primary judge in his reasons for making the 25 July 2025 judgment order, rather than to findings in his reasons for making the vexatious proceedings order. As noted above, Mr Dunstan’s application for leave to appeal from the 25 July 2025 judgment order was dismissed.

39    Thirdly, to the extent that Mr Dunstan’s submissions (including those submissions contained in his affidavit evidence) might, on a construction favourable to Mr Dunstan, challenge the reasons of the primary judge for making the vexatious proceedings order, there is no obvious merit in such challenges. In this regard: (1) it is clear from the primary judge’s reasons that the primary judge considered in some detail the evidence and submissions put forward by Mr Dunstan which were relevant to the question of whether a vexatious proceedings order should be made; and (2) the primary judge was not required to accept each of the submissions made by Mr Dunstan, nor to set out each and every submission in detail.

40    Thus, proposed grounds of appeal 4, 5 and 6 do not enjoy any reasonable prospect of establishing error on the part of the primary judge.

41    As none of Mr Dunstan’s grounds of appeal have reasonable prospects of success, the proposed appeal is a vexatious proceeding.

F.     CONCLUSION

42    For the foregoing reasons, the application for leave to institute the proposed appeal must be dismissed.

Associate:

Dated:    15 October 2026