Dunstan v Higham

Case [2016] ACTCA 20


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Public Service Act1922 (Cth) (repealed) ss 61, 62 and 63C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 1985 (ACT) ss 11 and 33
Supreme Court Act 1933 (ACT) s 37E

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
Allesch v Maunz (2000) 203 CLR 172
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Cave v Robinson Jarvis & Rolf [2003] 1 AC 384
Commonwealth v Cornwell (2007) 229 CLR 519
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dunstan v Orr & Ors [2008] FCA 31
Dunstan v Orr & Ors [2007] FCA 652
Dunstan v Orr & Ors [2007] FCA 873
East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605
Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25
Paramasivam v Flynn (1998) 90 FCR 489

R v Westminster City Council; Ex parte Ermakov [1996] 2 All ER 302
Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533
Wagdy Hanna & Associates Pty Ltd v National Library of Australia (2012) 7 ACTLR 70

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
Date of Decision:          27 August 2014

Case Title:  Dunstan v Higham & Ors

Citation: [2014] ACTSC 206

THE COURT:

  1. 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
Case
[2016] ACTCA 20
Decision Date

CaseChat Overview and Summary

The appeal in *Dunstan v Higham* concerned a dispute between the appellant, Dunstan, and the respondents, Higham and others. The primary judge had made findings against the appellant in relation to claims of misfeasance in public office, breach of contract, conspiracy, and interference with contractual relations. The central issue revolved around whether an authorised officer had made a decision not to charge the appellant with misconduct, and whether an internal document constituted evidence of such a decision. The admissibility of the authorised officer's evidence regarding their intention was also a point of contention.

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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