Dunstan v Orr

[2007] FCA 652

FEDERAL COURT OF AUSTRALIA

Dunstan v Orr [2007] FCA 652

COLIN GEORGE DUNSTAN v ROBYN ORR, JOHN HIGHAM AND JOHN GROWDER

ACD 77 OF 1997

MANSFIELD J
4 MAY 2007
CANBERRA (BY VIDEO)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 77 OF 1997

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

ROBYN ORR
First Respondent

JOHN HIGHAM
Second Respondent

JOHN GROWDER
Third Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	4 MAY 2007
WHERE MADE:	CANBERRA (BY VIDEO)

THE COURT ORDERS THAT:

1.Application for leave to amend application refused.

2.Application for leave to issue subpoenas to Richard Highfield and Geoffrey Seymour refused.

3.Application to inspect privileged documents of the respondents refused.

4.Leave to applicant to issue subpoenas to Barbara Benson and Erin Holland returnable at 10:15 am on 2 July 2007 for the purpose of giving oral evidence at the hearing.

5.Any proposed further evidence which applicant may seek leave to adduce at trial be filed and served by 31 May 2007.

6.Costs of today reserved.

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 77 OF 1997

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

ROBYN ORR
First Respondent

JOHN HIGHAM
Second Respondent

JOHN GROWDER
Third Respondent

JUDGE:	MANSFIELD J
DATE:	4 MAY 2007
PLACE:	CANBERRA (BY VIDEO)

REASONS FOR RULINGS

1. In this matter, which is now listed for hearing on 2 July 2007, there are a number of interlocutory applications before me today.

2. The first concerns the proposed amendment of the application by the addition of causes of action and by the addition of respondents.  I do not propose to grant leave to amend the application or to add causes of action or to add respondents.  In my view, insufficient ground has been shown to warrant the proposed amendment in any event.  An illustration is provided by the application to join Erin Holland in respect of some putative decision that she made.  But I was told this morning by Mr Dunstan that she never made a decision.  That is simply an illustration of the uncertainty with which I think the proposed amendment must struggle.  The form of the proposed amendment is quite unsatisfactory.  In any event, to allow the proposed amendment would involve an adjournment of the hearing.  Given the lengthy history of this matter, which I will not go into, it would be inappropriate to allow an amendment which would put the hearing at risk.  The joinder of new parties would necessarily do so.

3. In addition, the application to join the Commonwealth so that a breach of contract claim could be pursued is quite a different claim from the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the AD(JR) Act) claim now before the Court.  Mr Dunstan, if he is so advised, and as the respondents have indicated in their written submission, may bring such a claim independently of this action subject to the usual risks of doing…