Dunstan v Orr

Case [2025] FCA 858

FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2025] FCA 858

File number(s): ACD 57 of 2024
Judgment of: THAWLEY J
Date of judgment: 25 July 2025
Catchwords:

PRACTICE AND PROCEDURE – where respondents applied for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) – where applicant seeks to set aside an earlier judgment (2023 Judgment) on the basis it was procured by fraud – where 2023 Judgment addressed an application for summary dismissal of a different proceeding brought by the applicant seeking to aside an earlier judgment (2008 Judgment) on the basis it was procured by fraud – where 2008 Judgment was subject to an unsuccessful appeal – whether current proceeding an abuse of process – whether current proceeding has no reasonable prospect of success – where no reasonable cause of action disclosed – where current proceeding in substance an attempt to re‑litigate issues already judicially determined – where applicant has failed to identify a “fresh fact” capable of justifying an order setting aside the 2023 Judgment for fraud – proceeding should be summarily dismissed

PRACTICE AND PROCEDURE – alternative application for strike‑out of the applicant’s statement of claim under r 16.21 of the Federal Court Rules 2011 (Cth) – unnecessary to determine

PRACTICE AND PROCEDURE – where material before the Court indicates that the Court might be satisfied that the applicant has frequently instituted or conducted vexatious proceedings in Australian courts – notice given to applicant of a proposal by the Court to consider whether it should make an order under s 37AO(2)(b) of the Federal Court Act prohibiting the applicant from instituting proceedings without making an application for leave to institute proceedings

Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

Baker v Wadsworth (1898) 67 LJQB 301

Cabassi v Vila (1940) 64 CLR 130

Clayton v Bant [2020] HCA 44; 272 CLR 1

Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; 264 CLR 165

Comcare v Dunstan [2014] FCAFC 21

Dunstan v Comcare [2006] FCA 1655

Dunstan v Comcare [2007] FCA 504

Dunstan v Comcare [2011] FCAFC 108

Dunstan v Higham (No 2) [2016] ACTCA 28

Dunstan v Higham [2014] ACTSC 206

Dunstan v Higham [2016] ACTCA 20

Dunstan v Higham [2016] HCASL 308

Dunstan v Holland [2008] FCA 1450

Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885

Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916

Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137

Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284

Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326

Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 191

Dunstan v Morgan [2024] FCA 982

Dunstan v Orr (No 2) [2023] FCA 1536

Dunstan v Orr [2007] FCA 652

Dunstan v Orr [2007] FCA 873

Dunstan v Orr[2008]…

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Details
AGLC
Dunstan v Orr [2025] FCA 858
Case
[2025] FCA 858
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Mr Colin Dunstan sought to set aside a judgment procured by fraud. The respondents, Ms Robyn Orr, Mr John Higham, Mr John Growder, and the Commonwealth of Australia, applied for summary dismissal of Mr Dunstan's application under section 31A of the Federal Court of Australia Act 1976 and rule 26.01 of the Federal Court Rules 2011. The respondents argued that Mr Dunstan's application was an abuse of process, had no reasonable prospect of success, and disclosed no reasonable cause of action. The court was also required to determine whether an application to strike out Mr Dunstan's statement of claim should be granted. The court concluded that the proceeding was an abuse of process and should be summarily dismissed. The court also noted that there was evidence suggesting Mr Dunstan frequently instituted vexatious proceedings and gave him notice of a proposal to consider prohibiting him from instituting proceedings without leave. The court dismissed Mr Dunstan's application and ordered him to pay the respondents' costs. The court also ordered that the respondents file evidence and submissions on whether Mr Dunstan should be prohibited from instituting proceedings without leave and that Mr Dunstan file any reply evidence and submissions by a specified date. An oral hearing on the making of the proposed order was to be listed for a date to be fixed.

The court considered the requirements for setting aside a judgment for fraud, which include actual fraud and fresh evidence not available before the judgment was delivered. The court found that Mr Dunstan had failed to establish that the judgment was procured by fraud or that he had discovered fresh facts capable of justifying an order setting aside the judgment. The court also found that Mr Dunstan's proceeding was an abuse of process and had no reasonable prospect of success. The court concluded that Mr Dunstan's proceeding was the latest in a long and tortuous series of proceedings that related back to his suspension from the Australian Taxation Office in 1997. The court found that it would be an affront to the administration of justice to permit Mr Dunstan to pursue the proceeding any further. The court also found that Mr Dunstan's pleading, evidence, and submissions did not disclose a reasonable cause of action in negligence and that he had no reasonable prospect of establishing that the judgment was procured by fraud. The court found that Mr Dunstan was simply endeavouring to relitigate and reagitate claims and allegations that were categorically rejected by previous courts. The court found that the proceeding was an abuse of process and that judgment should be entered against Mr Dunstan in respect of the proceeding on that basis alone.

Orders

Orders of the court

1. The applicant’s amended interlocutory application filed on 7 July 2025 be dismissed.

2. Immediately after determination of the process timetabled in orders 4 to 8 below, pursuant to s 31A of Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered in the respondents’ favour against the applicant in respect of the whole of this proceeding.

3. The applicant pay the respondents’ costs of the proceeding to the date of these orders, including all interlocutory applications.

4. By 15 August 2025, the applicant is to file any evidence and submissions on which he intends to rely on the question of whether the Court should make an order (s 37AO(2)(b) order) substantially in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), Mr Colin George Dunstan be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the Federal Court Act.

5. By 29 August 2025, the respondents file and serve any evidence and submissions on the question of whether the Court should make a s 37AO(2)(b) order and the terms of any such order.

6. If the respondents file evidence and submissions as permitted by Order 5, the applicant file and serve any evidence and submissions in reply by 5 September 2025.

7. By 5 September 2025, the applicant is to notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the s 37AO(2)(b) order ought to be made and, in the absence of such notification, the issue as to whether the proposed order ought to be made is to be dealt with on the papers.

8. Any oral hearing in relation to the making of the s 37AO(2)(b) order under Pt VAAA, Div 2 of the Federal Court Act is to be listed for hearing on a date to be fixed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the proceeding heard by Wigney J, Mr Dunstan alleged “that the Commonwealth [was] liable to him in the tort of negligence because the officers who were involved in the events that led to his suspension [from the Australian Taxation Office (ATO)] gave false evidence and concealed documents in … previous proceedings that were determined adversely to him” and that “the judgment in the first of those previous proceedings [Dunstan v Orr[2008] FCA 31; 217 FCR 559 (Besanko J) (2008 Judgment)] was procured by fraud and should be set aside”: 2023 Judgment at [1]. Wigney J summarily dismissed Mr Dunstan’s proceeding. His Honour described the proceeding the subject of the 2023 Judgment as “the latest in a long and tortuous series of proceedings commenced by Mr Colin Dunstan that relate back to his suspension from duty as an officer of the … ATO … way back in July 1997”: 2023 Judgment at [1]. Wigney J concluded that “it would be an affront to the administration of justice to permit Mr Dunstan to pursue the proceeding any further”: 2023 Judgment at [3]. More specifically, Wigney J’s conclusions in the 2023 Judgment included that:(a)Mr Dunstan’s pleading, considered together with the evidence he had adduced and the submissions he had made, did not disclose a reasonable cause of action in negligence: at [198]; see also [105]–[197], [221].(b)Mr Dunstan had no reasonable prospect of establishing that he had discovered fresh facts which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment of Besanko J in the 2008 Judgment: at [210]. (c)Whilst Mr Dunstan’s pleading raised many serious allegations against many people, those allegations were not clearly tethered to any discernible cause of action apart from the cause of action in negligence and the claim that the judgment of Besanko J was procured by fraud: at [230].(d)By the proceeding, Mr Dunstan was simply endeavouring to relitigate and reagitate claims and allegations that not only did not find favour with Besanko J but were categorically rejected by Burns J and the ACT Court of Appeal: at [215].(e)Mr Dunstan had no, let alone any reasonable, prospect of establishing that the respondents to the litigation before Besanko J, or their legal advisers, were party to any actual fraud in respect of the conduct of that litigation: at [217].(f)The proceeding was an abuse of process irrespective of the application of any principles of issue and Anshun estoppel and judgment should be entered against Mr Dunstan in respect of the proceeding on that basis alone: at [222]–[229]. The respondents in the proceeding the subject of the 2023 Judgment were Ms Robyn Orr, Mr John Higham, Mr John Growder and the Commonwealth of Australia. They are also the respondents in the present proceeding, although – as is explained further below – Mr Growder has died. In the context of considering whether the proceeding was an abuse of process, Wigney J stated at [228]:It would, on any view, be demonstrably and unjustifiably oppressive to the parties to this proceeding to permit Mr Dunstan to vex them for a second or even third time in respect of his claims and allegations concerning his suspension from work and charging under the Public Service Act over 25 years ago. It would also be manifestly contrary to the public interest in the finality of litigation and would bring the administration of justice into disrepute.

Ratio Decidendi

Legal Principle Established

Exercise of the power conferred by s 31A(2) requires a practical judgment about an applicant’s prospects of success. As French CJ and Gummow J observed in Spencer at [25]:Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.Consideration As has been mentioned, the relief sought by Mr Dunstan in his originating application is that the orders made by Wigney J be set aside on the basis that those orders were procured by fraud. The concise statement and statement of claim also raise claims for damages on the bases mentioned earlier. Principles relevant to setting a judgment aside for fraud The circumstances in which a judgment might be set aside for fraud were considered by the New South Wales Court of Appeal in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (Kirby P, Hope and Samuels JJA agreeing). The Court of Appeal observed that such proceedings were well‑established in Australian law, independent of an appeal and equitable in origin and nature: at 537. The requirements were summarised by French J in Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262 at [60] and by Robertson J in SZSXT v Minister for Immigration and Border Protection [2013] FCA 1440 at [67]. The requirements relevant to a private law case may be summarised as follows. First, the essence of the action is fraud: Spalla at [60] (proposition 1). Fraud means actual fraud: Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; 264 CLR 165 at [2] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). In Clone at [55], the High Court set out with apparent approval the following observations of Sir John Rolt LJ in Patch v Ward (1867) LR 3 Ch App 203 at 212–3: I think, for the reasons which have been given by my learned brother, that the fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. Mere constructive fraud not originating in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance, would probably not be sufficient – at all events I think could not, after such delay as has occurred in this case, be deemed sufficient – to set aside the order which has been made. What, therefore, the Appellant has to do is to satisfy the Court that the decree was obtained by the positive and actual fraud and contrivance of the party obtaining it. It goes without saying that the allegation of fraud must be established by the strict proof which such a charge requires. Second, actual fraud must be proved by evidence not available to the moving party before the judgment was delivered, namely by “fresh evidence”: Clone at [64], [65]; Storry v Parkyn [2024] FCAFC 67 at [16] (Lee, Feutrill and Jackman JJ). The party asserting that a judgment was procured by fraud must show that there was a “new discovery” (a discovery after the judgment was delivered) of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, provide a reason for setting aside the judgment: Spalla at [60] (proposition 2).