Dunstan v Orr

Case [2022] FCA 1589

FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2022] FCA 1589  

File number(s): ACD 45 of 2022
Judgment of: BURLEY J
Date of judgment: 16 September 2022
Date of publication of reasons: 23 December 2022
Catchwords: PRACTICE AND PROCEDURE – application seeking leave to appeal from decision of primary judge not to recuse himself from the proceedings on the grounds of actual and apprehended bias  – application dismissed  
Legislation: Federal Court Rules 2011 (Cth) r 36.11(2)(f)
Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397

Dunstan v Orr [2008] FCA 31; 217 FCR 559

Dunstan v Orr [2022] FCA 1006

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150

House v The King [1936] HCA 40; 55 CLR 499

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507

Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 26
Date of last submissions: 13 September 2022
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant was self-represented
Solicitor for the Respondents: Ashurst
Counsel for the Respondents: Christopher McDermott

ORDERS

ACD 45 of 2022
BETWEEN:

COLIN GEORGE DUNSTAN

Applicant
AND:

ROBYN ORR

First Respondent

JOHN HIGHAM

Second Respondent

JOHN GROWDER (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

16 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The application for leave to appeal from the judgment of Justice Wigney given on 29 August 2022, filed on 5 September 2022, be dismissed.

2.The applicant pay the respondent’s costs of the application for leave to appeal.

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


REASONS FOR JUDGMENT

BURLEY J:

  1. On 5 September 2022, the applicant, Colin Dustan, filed an application for leave to appeal from a decision given on 29 August 2022 whereby the primary judge declined to recuse himself on the grounds of apprehended or actual bias; Dunstan v Orr [2022] FCA 1006 (recusal judgment).

  2. On 7 September 2022 I made directions that the parties file written submissions in relation to the application, and, on the request of the applicant, that the application be determined on the papers. The parties duly filed submissions. On 16 September 2022 I determined that the application for leave be refused with costs. These are my reasons for doing so.

  3. The proceedings are brought by the applicant against the Commonwealth of Australia and three former officers of the Australian Taxation Office (ATO), Ms Robyn Orr, Mr John Higham and Mr John Growder (collectively, the respondents). The applicant alleges, in summary, that the respondents and another former officer…

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Details
AGLC
Dunstan v Orr [2022] FCA 1589
Case
[2022] FCA 1589
Decision Date

CaseChat Overview and Summary

The case of Dunstan v Orr involved an application for leave to appeal a decision of Justice Wigney, who was the primary judge in the Australian Capital Territory registry of the Federal Court. The proceedings were at an early stage, with several interlocutory applications filed, including one seeking the primary judge's recusal on grounds of actual and apprehended bias. The applicant, Dunstan, sought leave to appeal from Justice Wigney's refusal to recuse himself, arguing that the decision was manifestly unreasonable and that it denied him natural justice. The application also sought a stay of the proceedings and an order for the respondents to provide information about the custody of documents sought in another interlocutory application.

The legal issues before the court included whether Justice Wigney's refusal to recuse himself was manifestly unreasonable and whether it denied the applicant natural justice. The court had to consider whether the primary judge's conduct in setting the hearing dates, handling ex parte communications, and making orders about costs demonstrated actual or apprehended bias. The court also needed to determine if the applicant was denied a fair opportunity to present his case due to the primary judge's actions.

The court found that the application for leave to appeal should be dismissed. The reasons included that the primary judge's refusal to recuse himself was not manifestly unreasonable, and there was no evidence of actual or apprehended bias. The court concluded that the applicant had not demonstrated that the primary judge's decisions were so flawed as to warrant an appeal. The court also found that the applicant had not been denied natural justice, as the primary judge had acted fairly in considering the interlocutory applications.

ORDERS:
1. The application for leave to appeal from the judgment of Justice Wigney given on 29 August 2022, filed on 5 September 2022, be dismissed.
2. The applicant pay the respondent’s costs of the application for leave to appeal.

Orders

Orders of the court

1. The application for leave to appeal from the judgment of Justice Wigney given on 29 August 2022, filed on 5 September 2022, be dismissed.

2. The applicant pay the respondent’s costs of the application for leave to appeal.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The primary judge was responsible for case managing matters filed in the Australian Capital Territory registry of this Court. At the time of the judgment the proceedings were at an early stage. Two case management hearings had been conducted and procedural directions made. Three interlocutory applications had been filed. In the first, the respondents sought summary disposal of the application or an order striking out the pleading (summary judgment application). In the second, the applicant sought production and inspection of a document from the respondents (production application). In the third, the applicant (relevantly) sought orders that the primary judge recuse himself from hearing the proceedings, including all other interlocutory applications, on the basis of apprehended and actual bias (recusal application). It is the primary judge’s refusal of the recusal application that is the subject of the present application, which came before me as duty judge. A need for urgency was said to have arisen from the fact that the summary judgement and the production applications were listed before the primary judge on 20 and 21 September 2022. It was contended that the question of leave should be determined before that date. The applicant sought orders, in addition to the grant of leave to appeal, staying the continuation of the proceedings and staying an order for the applicant to pay the respondents’ costs of the recusal application, pending determination of the appeal and also directions pursuant to Federal Court Rules 2011 (Cth) r 36.11(2)(f) to the effect that: (a) the primary judge does not hear and determine the interlocutory applications; (b) the respondents provide information as to the custody of the documents sought in the production application; and (c) that any interlocutory application be heard by a judge other than the primary judge. The grounds of the application are as follows:1. That the decision of Wigney J to decline to recuse himself on the grounds of actual bias and apprehended bias is manifestly unreasonable:a. His Honour has led the applicant to believe he has no right to access additional evidence to resist an application for summary judgment when there is a relevant authority to the contrary. b.His Honour has set matters for consecutive hearing on 20 and 21 September 2022 and led the applicant to believe the right to appeal a decision on the first matter – his application to access evidence to resist an application for summary judgment - will be extinguished by His Honour’s stated intention to immediately hear the summary judgment application after any ex-tempore decision to refuse the applicant’s application. c.His Honour has revealed and used inaccurate ex parte communication prejudicial to the applicant at [49] in the reasons for his decision given on 29 August 2022. 2. That the applicant was denied natural justice by Wigney J in his decision on 29 August 2022 that the applicant pay the respondents’ cost of a hearing on 2 August 2022 – that hearing being on a date agreed between His Honour and the respondents, when: a.His Honour requested the applicant’s view, and then ignored the applicant’s proposal to allow more time to prepare. b.The respondents agreed to the suggested date only to need and receive exceptional Court assistance to have their List of Authorities – for a 1,500-page book of authorities – stamped as filed electronically at or about 6:30 pm on the night before the hearing. c.The applicant was prejudiced by the respondents’ belated preparation for the hearing on the date they and His Honour had agreed between themselves, having ignored the applicant’s cautionary suggestion to allow more time to prepare. 3. That the applicant was denied natural justice by His Honour in his decision on 29 August 2022 to fail to make an order the applicant requested - to require the respondents to comply with a request His Honour had made that they supply information to the applicant about custody of evidence the applicant has applied to access to resist the respondents’ summary judgment application. 4. That the making of the order at Ground 2 and the failure to make the order requested at Ground 3 emanated from actual bias by Wigney J and that a reasonable observer would view as apprehended bias favouring the respondents.

Ratio Decidendi

Legal Principle Established

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