SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Dunstan v Higham |
Citation: | [2016] ACTCA 20 |
Hearing Date: | 7 May 2015 |
DecisionDate: | 24 June 2016 |
Before: | Murrell CJ, Penfold and Rangiah JJ |
Decision: | 1. The appeal is dismissed. 2. The appellant pay the respondents’ costs of the appeal. |
Catchwords: | LIMITATION OF ACTIONS – action in misfeasance in public office, breach of contract, conspiracy and interference with contractual relations – whether the authorised officer made a decision to not charge the appellant with misconduct – whether internal document was evidence of a decision – where evidence of the authorised officer’s intention was accepted by the primary judge – whether authorised officer’s evidence admissible – whether any relevant fact was deliberately concealed – actual concealment or deliberate omission – motivation to conceal |
Legislation Cited: | Migration Act 1958 (Cth) Public Service Act1922 (Cth) (repealed) ss 61, 62 and 63C Limitation Act 1980 (UK) s 32 |
Cases Cited: | Abalos v Australian Postal Commission (1990) 171 CLR 167 AIC Ltd v ITS Testing Services (UK) Ltd [2007] Lloyds Rep 555 R v Westminster City Council; Ex parte Ermakov [1996] 2 All ER 302 Williams v Fanshaw Porter and Hazelhurst (a firm) [2004] 1 WLR 3185 |
Texts: | Lexis Nexis, Carter on Contract, vol 1 (at update 21) [12-020] |
Parties: | Colin Dunstan (Appellant) John Higham (First Respondent) John Growder (Second Respondent) Robyn Orr (Third Respondent) Richard Highfield (Fourth Respondent) Geoff Seymour (Fifth Respondent) Commonwealth of Australia (Sixth Respondent) |
Representation: | Counsel Mr J Burnside QC with Mr T Crispin (Appellant) Mr G Stretton SC with Mr G McCarthy (Respondents) |
| Solicitors Darryl Perkins Solicitors (Appellant) Clayton Utz (Respondents) | |
File Number: | ACTCA 48 of 2014 |
Decision under appeal: | Court: Supreme Court of the Australian Capital Territory Before: Burns J Case Title: Dunstan v Higham & Ors Citation: [2014] ACTSC 206 |
THE COURT:
On 17 May 2010, the appellant, Colin Dunstan, commenced a proceeding in this Court claiming damages for misfeasance in public office, breach of contract, conspiracy, defamation and interference with contractual relations. On 27 August 2014,…
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- Dunstan v Higham [2016] ACTCA 20
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- [2016] ACTCA 20
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CaseChat Overview and Summary
The court was required to determine whether the primary judge had erred in finding that the authorised officer had not made a decision to not charge the appellant with misconduct. This involved assessing whether an internal document was sufficient evidence of such a decision, and whether the primary judge had correctly admitted and considered the authorised officer's evidence concerning their intentions. Furthermore, the court had to consider whether any relevant fact had been deliberately concealed or omitted by the authorised officer, and what the motivation for any such concealment or omission might have been.
The Full Court of the Supreme Court of Queensland upheld the primary judge's findings. Their Honours reasoned that the primary judge had been entitled to accept the authorised officer's evidence regarding their intention, and that the internal document did not, in itself, demonstrate a concluded decision not to charge the appellant. The court found no error in the admission of the authorised officer's evidence, nor in the primary judge's assessment of whether any deliberate concealment or omission had occurred. The legal principles applied concerned the assessment of evidence, the nature of a concluded decision, and the elements required to establish deliberate concealment or omission in the context of the claims brought.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant pay the respondents’ costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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