Dunstan v Orr - [2008] FCA 736

FEDERAL COURT OF AUSTRALIA
Dunstan v Orr [2008] FCA 736
COLIN GEORGE DUNSTAN v ROBYN ORR, JOHN HIGHAM and JOHN GROWDER
ACD 12 OF 2008
STONE J
12 MAY 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 12 OF 2008

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

ROBYN ORR
First Respondent

JOHN HIGHAM
Second Respondent

JOHN GROWDER
Third Respondent

JUDGE:

STONE J

DATE:

12 MAY 2008

PLACE:

CANBERRA

REASONS FOR JUDGMENT

On 29 April 2008 the applicant, Mr Colin Dunstan, filed a notice of motion seeking an order that the Court assign a judge other than myself to hear his application for a referral under O 80 of the Federal Court Rules. I listed his motion for hearing on 12 May 2008. At that hearing Mr Dunstan made it clear that he was also requesting me to recuse myself from any further involvement in relation to the management of the appeal that he has filed in this Court on the grounds of bias. At the conclusion of the hearing I dismissed his application that I recuse myself and said I would provide written reasons at a later date. These are my reasons.
On 14 February 2008 Mr Dunstan filed a notice of appeal from orders made by Besanko J on 25 January 2008; [2008] FCA 31. At the Full Court callover for the ACT District Registry on 21 April 2008 Mr Dunstan, who appeared for himself, opposed the appeal being listed in the next Full Court period in August 2008 saying that he would be unavailable because he would be overseas for most of or possibly all of August. He said that it was to seek medical treatment for a confidential condition but did not give any further information other than to say that the trip had been planned since January and that it could not be taken earlier as he had a parole hearing on 13 May which might result in his parole being revoked and him being again taken into custody.
Mr Dunstan declined to give any further information. In particular he would not explain why it was necessary for him to be away in August rather than at a later date. He did not give details of any arrangements that had already been put in place for medical treatment, his proposed departure and return dates or bookings made. I explained to Mr Dunstan that it was necessary in the interests of all parties for appeals to be handled expeditiously and ordered him, by 29 April 2008, to file an affidavit setting out the reasons why he would be unavailable during the August Full Court period. I also explained that I required details of where he was intending to go, the arrangements that had been made for him overseas, any arrangements that could not now be changed and why it was essential that he not be in Australia in August. I indicated that if necessary he could mark the affidavit confidential and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunstan v Orr

Details

AGLC: Dunstan v Orr [2008] FCA 736
Case: [2008] FCA 736
Decision Date: 12 May 2008

CaseChat Overview and Summary

In the case of Dunstan v Orr, the applicant, Colin George Dunstan, sought an order for the recusal of Justice Stone from hearing his appeal, arguing that the judge was biased. The respondents, Robyn Orr, John Higham, and John Growder, were not directly involved in the appeal process but were named as respondents in the court filing. The legal issues at hand were whether Justice Stone was biased against the applicant and whether a referral under Order 80 of the Federal Court Rules for pro bono legal assistance was warranted.

The court evaluated the applicant's claims of bias based on the judge's handling of the appeal and his refusal to consider the request for pro bono legal assistance. The applicant argued that the judge's comments indicated bias, but the court found no substance in these allegations. Justice Stone noted that the refusal to consider the referral was based on the applicant's failure to provide the required details and not on any bias. Additionally, the court clarified that Order 80 of the Federal Court Rules allows for the referral of litigants to pro bono legal assistance at the court's discretion, and the refusal did not reflect any view on the merits of the case.

The court dismissed the applicant's request for recusal and for a referral under Order 80, ruling that there was no evidence of bias. The judge also ordered that the applicant's appeal be listed for hearing in the August Full Court sittings, despite the applicant's concerns about his availability due to a planned overseas trip for medical treatment. The court emphasized that the applicant's inability to instruct counsel while in custody was not a valid reason to defer the appeal hearing, as appropriate measures could be taken if such difficulties arose.

Orders