Dunstan v Holland

[2008] FCA 1450

FEDERAL COURT OF AUSTRALIA

Dunstan v Holland [2008] FCA 1450

COLIN GEORGE DUNSTAN v ERIN HOLLAND and COMMONWEALTH OF AUSTRALIA

ACD 22 OF 2008

STONE J
22 SEPTEMBER 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 22 OF 2008

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

ERIN HOLLAND
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	22 SEPTEMBER 2008
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The application for an order of review filed by the applicant on 16 July 2008 be dismissed.

2.The notice of motion filed by the applicant on 15 September 2008 be dismissed.

3.The applicant pay the respondents’ costs of and incidental to the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 22 OF 2008

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

ERIN HOLLAND
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	STONE J
DATE:	22 SEPTEMBER 2008
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. I have before me two notices of motion.  The applicant seeks an order for summary judgment in this matter which he commenced by application filed on 16 July 2008.  The respondents seek summary dismissal of that application.  The applicant has also raised the possibility of the Court referring him to a legal practitioner on the pro bono panel under O 80 of the Federal Court Rules. 

2. It is clear that if the respondents’ notice of motion for summary dismissal of the application is successful, then the applicant’s notice of motion for summary judgment must fail and in those circumstances, it would not be necessary for me to consider any question arising under O 80.  For that reason, as I indicated to the parties at the commencement of the hearing today, I propose to consider the respondents’ application first.

3. The respondents seek summary dismissal of the application on the basis that the Court has no power to make the orders sought in the application.  Those orders are as follows:

   1. In respect to application(1) a declaration that at the time of commencement of this proceeding there has been an unreasonable delay in the failure of the first respondent to make a decision under section 62 “Inquiries into misconduct” of the Public Service Act 1922 (C’th).

   2. In respect to application(2) a declaration that at the time of commencement of this proceeding there has been an undue delay in the holding of an inquiry contrary to the procedure required by law under sub-section 62(1) of the Public Service Act 1922 (C’th).

   3.        That the appeal, action ACD12 of 2008, Dunstan v Orr and Others, set           down for hearing on 7 August 2008 be adjourned pending the         resolution of this proceeding.

   4.        Such further orders as the Court deems fit.

4. Clearly order 3 is now moot, as the appeal to which it refers has been dismissed.  The respondents submit that the Court has no power…