Dunstan v Higham

[2014] ACTSC 206

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dunstan v Higham & Ors

Citation:

[2014] ACTSC 206

Hearing Date(s):

26 – 29 August 2013, 2 – 5 September 2013, 11, 24, 25 October 2013

DecisionDate:

27 August 2014

Before:

Burns J

Decision:

Judgment be entered for the defendants.

The plaintiff is to pay the defendants’ costs unless a party makes an application for some other costs order within 14 days.

Category:

Principal Judgment

Catchwords:

CIVIL LAW – misfeasance in public office – breach of contract of employment – conspiring to injure by lawful means

CIVIL LAW AND PROCEDURE – limitation of actions – fraud and concealment

EQUITY – issue estoppels – whether non-disclosure of evidentiary material constitutes a special circumstance

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Limitation Act 1985 (ACT) s 33 (1) (b)
Public Service Act 1922 (Cth) ss 61, 63C, 76W

Cases Cited:

Australian Wool Innovation Ltd v Newkirk [2005] FCA 290

Arnold v National Westminster Bank PLC [1991] 2 AC 93
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885
Dunstan v Orr [2008] FCA 31
Jones v Dunkell (1959) 103 CLR 314

Parties:

Colin Dunstan (Plaintiff)

John Higham (First Defendant)

John Growder (Second Defendant)

Robyn Orr (Third Defendant)

Richard Highfield (Fourth Defendant)

Geoff Seymour (Fifth Defendant)

Commonwealth of Australia (Sixth Defendant)

Representation:

Counsel:

Mr McKeown with Mr Crispin (Plaintiff)

Mr Stretton SC with Mr McCarthy (Defendants)

Solicitors:

Ron Clapham (Plaintiff)

Clayton Utz Lawyers (Defendants)

File Number(s):

SC 273 of 2010

THE COURT:

1. In January 1987 the plaintiff, a long time public servant, was promoted to occupy the position of Assistant Director, Database Administration Subsection, in the Australian Taxation Office (the ATO).  In late 1990 he entered into an intimate relationship with another ATO employee, Ms X.  That relationship broke down, and subsequently both the plaintiff and Ms X made complaints about the alleged conduct of the other in the workplace.  The plaintiff was not content with the response of management of the ATO to his grievances concerning Ms X, and he commenced various proceedings against members of the ATO.

1. In or around early June 1997 the ATO became concerned that the plaintiff may have been guilty of systems violations of the ATO Production and Development mainframes.  The ATO retained IBM to investigate whether the plaintiff was involved in any such system violations.  On 12 June 1997 David Pasch of IBM provided the ATO with a report titled “Review of User Violations – ATO, June 1997”, the main findings of which were that there was evidence that the plaintiff had engaged in systems violations which could potentially have serious consequences for the ATO.

1. On 4 June 1997 the plaintiff was suspended from duty and escorted from the workplace. On 16 June 1997 he met with management at the ATO and was handed 19 written questions to be answered within two days. On 18 June…