PRACTICE AND PROCEDURE – respondents’ application under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) for summary judgment – where applicant’s claims arose from applicant’s suspension from duty under Public Service Act 1922 (Cth) in 1997 and the conduct of the respondents and their legal advisers in subsequent unsuccessful proceedings concerning the suspension – first claim in negligence against the fourth respondent in relation to novel duty of care in conduct of proceedings – where nature and scope of alleged duty of care is unclear – found no reasonable prospects of establishing alleged duty or breaches – found applicant estopped from reagitating allegations of false evidence – found claim to be statute barred by expired limitation periods – second claim that respondents procured a previous judgment by fraud – where no new relevant or material facts established – found no reasonable prospects of establishing actual fraud on the part of the respondents to the proceeding or their legal advisers – further finding that the applicant’s proceeding constitutes an abuse of process – found that both claims doomed to fail – application for summary judgment granted
PRACTICE AND PROCEDURE – respondents’ alternative application under r 16.21 of the Federal Court Rules 2011 (Cth) for striking out of the applicant’s statement of claim – where serious allegations not pleaded with sufficient specificity and clarity – where pleadings a series of broad and sweeping allegations – found that had summary judgment not been entered the pleading would have been struck out
[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.
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AGLC
Dunstan v Orr (No 2) [2023] FCA 1536
Case
[2023] FCA 1536
Decision Date
CaseChat Overview and Summary
In the case of Dunstan v Orr (No 2), the applicants sought summary judgment against the respondent, Mr Dunstan, in relation to claims arising from his suspension from duty under the Public Service Act 1922 (Cth) in 1997 and subsequent unsuccessful proceedings concerning the suspension. The applicants contended that Mr Dunstan's claims were doomed to fail and constituted an abuse of process. The court was required to decide whether there were reasonable prospects of Mr Dunstan establishing his claims, and whether the proceeding was frivolous, vexatious, or an abuse of process.
The court found that there were no reasonable prospects of Mr Dunstan establishing a novel duty of care in the conduct of the proceedings or actual fraud on the part of the applicants. The court also found that Mr Dunstan was estopped from reagitating allegations of false evidence and that his claims were statute-barred by expired limitation periods. Furthermore, the court found that Mr Dunstan's proceeding constituted an abuse of process. In light of these findings, the court granted the applicants' application for summary judgment and dismissed Mr Dunstan's claims.
The court also considered the applicants' alternative application for striking out Mr Dunstan's statement of claim under r 16.21 of the Federal Court Rules 2011 (Cth). The court found that Mr Dunstan's pleadings were a series of broad and sweeping allegations that were not pleaded with sufficient specificity and clarity. The court found that had summary judgment not been entered, the pleading would have been struck out.
In summary, the court found that Mr Dunstan's claims were doomed to fail and that his proceeding constituted an abuse of process. The court granted the applicants' application for summary judgment and dismissed Mr Dunstan's claims. The court also found that Mr Dunstan's pleadings were insufficiently specific and clear and would have been struck out had summary judgment not been entered. The applicants were awarded costs of the proceeding.
Orders
Orders of the court
1. 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.
2. To the extent that it is necessary to do so, prayers 4, 5 and 6 of the applicant’s interlocutory application filed on 20 July 2022 be dismissed.
3. The applicant’s interlocutory application filed on 8 June 2022 be dismissed.
4. The applicant pay the respondents’ costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, it is appropriate to enter summary judgment in favour of the respondents and against Mr Dunstan. Indeed, it would be an affront to the administration of justice to permit Mr Dunstan to pursue the proceeding any further. In commencing and prosecuting the proceeding, Mr Dunstan effectively seeks to rake over the coals of litigation that was determined adversely to him many years ago concerning events which occurred over 25 years ago. His pleadings, evidence and submissions do little more than reagitate, rehash or repackage serious allegations of fraud that were categorically rejected in the prior litigation in circumstances where nothing of substance has changed and no material fresh facts have emerged. There is, in any event, no sound or reasonable legal or factual basis for the pleaded causes of action. The proceeding is doomed to fail.FACTUAL BACKGROUND TO MR DUNSTAN’S CLAIMS Following is a short summary of the factual background to Mr Dunstan’s claims. Mr Dunstan commenced employment with the Commonwealth Public Service in 1975. By 1987 he occupied the position of Assistant Director, Database Services at the ATO. In 1990, Mr Dunstan commenced an ill-fated relationship with another ATO employee. The breakdown of that relationship in 1992 spawned a number of complaints and in due course proceedings. Mr Dunstan lodged a complaint concerning the actions of certain ATO officers with the Human Rights and Equal Opportunity Commission (HREOC). One of the ATO officers who was the subject of that complaint was Mr John Growder, who was Mr Dunstan’s supervisor. Mr Growder is the third respondent in this proceeding. When HREOC decided not to inquire into that complaint, Mr Dunstan commenced judicial review proceedings against HREOC in this Court in April 1997. Mr Growder was also named as a respondent in that proceeding. That proceeding was eventually heard and dismissed in 2005: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885. Mr Dunstan also commenced a private prosecution against Mr Growder and another ATO officer in April 1997. The Commonwealth Director of Public Prosecutions eventually took control of that prosecution and in August 1998 the charges were dismissed after the Director declined to proceed. Mr Dunstan’s proceedings against HREOC and his private prosecution are not directly relevant to the current proceeding. They are, however, indirectly relevant. As will be seen, Mr Growder was involved in the events that culminated in Mr Dunstan’s suspension from duty. In later proceedings concerning his suspension, which are directly relevant to this proceeding, Mr Dunstan alleged that Mr Growder and other officers who were involved in the decision to suspend him were improperly motivated by a desire to retaliate against Mr Dunstan for commencing the HREOC and private prosecution proceedings against Mr Growder. In May 1997, Mr Growder presented information concerning Mr Dunstan to Ms Robyn Orr, who was then Acting Assistant Commissioner, Human Resources at the ATO. Ms Orr is the first respondent in this proceeding. The information presented to Ms Orr concerned what Mr Growder believed to be “systems violations” by Mr Dunstan in respect of his access to the ATO’s mainframe computer system. Mr Growder expressed the opinion that the systems violations were such that Mr Dunstan had failed to fulfil his duties as an officer.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Rule 16.21 of the Rules, which deals with striking out, provides as follows:(1)A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:(a) contains scandalous material; or(b) contains frivolous or vexatious material; or(c) is evasive or ambiguous; or(d)is likely to cause prejudice, embarrassment or delay in the proceeding; or(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or(f) is otherwise an abuse of the process of the Court.(2)A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.Relevant principles – Summary judgment The relevant principles in relation to summary judgment or dismissal under s 31A of the FCA Act were considered by the High Court in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 and have been discussed in numerous judgments in this Court. They may be summarised as follows. First, s 31A authorises summary disposition of proceedings “on a variety of bases under its general rubric” (that being, “no reasonable prospect of successfully prosecuting…”). Those bases include, but are not limited to: cases where the pleadings disclose no reasonable cause of action and their deficiency is incurable; cases in which there is unanswerable or unanswered evidence of a fact fatal to either the pleaded case or any case that might be propounded by permissible amendment; and the “longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’”: Spencer at [22] (per French CJ and Gummow J). It should be noted, in this context, that r 26.01 of the Rules expressly provides for summary judgment not only where there is no reasonable prospect of successfully prosecuting the proceeding, but also where the proceeding is frivolous or vexatious, or no reasonable cause of action is disclosed, or the proceeding is an abuse of process. The meaning of “vexatious” in this context is considered later in the context of the principles relating to striking out pleadings. Second, the power to summarily dismiss a proceeding is to be distinguished, in its application to deficient pleadings, from provisions such as r 16.21 of the Rules: Spencer at [23] (per French CJ and Gummow J). Where the evidence shows that a party may have a reasonable cause of action or reasonable prospects of success, but the party’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at [47], referred to in Spencer at [23]. That said, a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries at [47].