Applicant's Affidavit of 14 May 2025 - Dunstan v Orr and Others - ACD57 of 2024
Form 59
Rule 29.02(1)
Affidavit
No. ACD 57 of 2024
Federal
Court of Australia
District
Registry: Australian Capital Territory
Division: General
COLIN
GEORGE DUNSTAN
Applicant
ROBYN ORR and others
Respondents
Affidavit of: Colin George Dunstan
Address: 22 Sentry Crescent, Palmerston ACT 2913
Occupation: Retired
Date: 14 May 2025
Contents
|
Document number |
Details |
Paragraph |
Page |
|
1 |
Affidavit of Colin George Dunstan. |
1 |
1-30 |
|
2 |
Annexure “CGD05” being a copy my letter to Ms McKean dated 28 April 2025 and a reply from Mr Pipolo on behalf of Ms McKean dated 9 May 2025. |
6 |
31-60 |
|
3 |
Annexure “CGD06” being a bundle of documents revealed to the Applicant by the Commissioner of Taxation in answer to a summons from the AAT in 2009. |
19 |
61-93 |
|
4 |
John Higham’s minute of 29 July 1997 to John Whyte and John Growder. |
19(a) |
62-66 |
|
5 |
Geoffrey Seymour’s memorandum of 30 July 1997 to Richard Highfield |
19(b) |
67-71 |
|
6 |
Robyn Orr’s Memorandum of 15 August 1997 to Richard Highfield. |
19(c) |
72-76 |
|
7 |
Geoffery Seymour’s documents dated 19 August 1997 and 14 October 1997 (intended for John Growder’s signature, after Geoff Seymour’s resignation). |
19(d) |
77-84 |
|
8 |
An instrument signed on 17 April 1998 by the Commissioner of Taxation– the Fourth Respondent - delegating Barbara Benson to be the decision maker under the Public Service Act 1922 (Cth). |
19(e) |
85-86 |
|
9 |
A draft, unsent letter intended for the Applicant from Barbara Benson, and an email from Barbara Benson to John Whyte dated 21 September. |
19(f) |
87-88 |
|
10 |
Emails to and from Barbara Benson, including another decision on 24 November 1998 to extend hardship payments to the Applicant until 31 March 1999. |
19(g) |
89-91 |
|
11 |
An email dated 23 December 1998 about responding to questions from HREOC in December 1999. |
19(h) |
92 |
|
12 |
A file note dated 29 January 1999 about an email to Barbara Benson on the same date asking for a decision on stopping hardship payments. |
19(i) |
93 |
|
13 |
Annexure “CGD07” being a copy of the first letter by Greg Farr dated 18 December 1998, inviting submissions about a decision he proposed he might make about hardship payments. Also included is advice by email on 3 December 1998 of a previous decision, and a file note on ceasing payments made pursuant to that decision. |
20(a) |
94-98 |
|
14 |
Annexure “CGD08” being a copy of Greg Farr’s affidavit of 1 September 1999 filed by the Australian Government Solicitor in the Federal Court of Australia proceeding AG 58 of 1999. Greg Farr’s decision dated 5 August 1999 is annexure “B” to that affidavit. |
23 |
99-111 |
|
15 |
Annexure “CGD09” being a copy of a letter from the Australian Government Solicitor dated 4 September 2002. |
31 |
112-130 |
|
16 |
Annexure “CGD10” being a copy of Ms McKean’s affidavit filed for the Respondents in this proceeding together with parts of the annexure to that affidavit. |
55 |
131-160 |
|
17 |
Annexure “CGD11” being a copy of an investigation into unauthorised access and alteration of restricted electronic data of the Commonwealth of Australia conducted in January 1996 and two preceding documents dated 23 and 24 August 1995. |
67 |
161-179 |
|
18 |
Annexure “CGD12” being a copy of a bundle of documents on the Applicant’s judicial review of Registrar Morgan’s decision rejecting for filing the application dated 23 June 2024 to commence this proceeding. |
108 |
180-309 |
|
19 |
My application on 11 July 2024 requesting that the hearing date of 4 September 2024 for my application for leave to appeal be vacated, and for the judicial review of a decision by Registrar Morgan dated 8 July. |
108(a) |
181-189 |
|
20 |
My letter dated 12 August 2024 in response to a request from Ms McKean for a copy of an affidavit I filed in the abovementioned judicial review application. |
108(b) |
190-281 |
|
21 |
The transcript of the hearing of my judicial review application on 23 August 2024. |
108(c) |
282-297 |
|
22 |
My letter of 26 August 2024 to Kennett J following the hearing, addressing what I described as a “dilemma” [1] at the conclusion of my submissions at the hearing. |
108(d) |
298-299 |
|
23 |
The judgment Dunstan v Morgan [2024] FCA 982, of Kennett J on 28 August 2024. |
108(e) |
300-309 |
|
24 |
Annexure “CGD13” being a copy of the Applicant’s “genuine steps statement” and “concise statement” filed in this proceeding. |
109 |
310-321 |
|
25 |
Annexure “CGD14” being a bundle of documents which are communications between the Applicant and Ashurst Australia after the hearing in September 2022 and before the delivery of the judgement by Wigney J in December 2023. |
116 |
322-357 |
|
26 |
Email with letter from Applicant to Ashurst Australia, dated 12.10.2022. |
116(a) |
323-325 |
|
27 |
Email with letter from Applicant to Ashurst Australia, dated 07.11.2022. |
116(b) |
326-334 |
|
28 |
Email with letter from Ashurst Australia in reply to the Applicant, dated 16.11.2022. |
116(c) |
335-336 |
|
29 |
Email with letter from Applicant to Ashurst Australia, dated 01.02.2023. |
116(d) |
336-356 |
|
30 |
Email from Ashurst Australia in reply to the Applicant, dated 07.02.2023. |
116(e) |
357 |
|
31 |
Annexure “CGD15” being a copy of the Applicant’s affidavit of 14 May 1996 given to the ACT Human Rights Office, listing claims by Anne Hanh of her relationship with the Applicant, and his reply. |
124 |
358-397 |
|
32 |
Annexure “CGD16” being a copy of an agreement dated 30 August 1992. |
125 |
398-400 |
|
33 |
Annexure “CGD17” being a copy of Linda Millar’s letter dated 20 November 1992 to Nhon Tran. |
126 |
401-406 |
I Colin George Dunstan, retired, affirm:
1. I am the Applicant in this proceeding.
2. Each of the answers below are true based on my own knowledge.
4. In response to that application, affidavit and submissions I read and rely upon this affidavit.
5. The Respondents have not filed a defence, and I reserve the right to file further evidence in support of my application.
7. In reply to paragraphs [8] – [10] of Ms McKean’s’ affidavit, I have responded to the Respondents submissions in my written submissions in reply.
Relevant Background –
Ms Kean’s affidavit paragraphs [11] – [19]
8. There are multiple contributing factors leading up to the Federal Court proceedings I commenced in November 2021 that Ms McKean mentions at paragraph [19].
9. Each contributing factor is material. Each one explains the reasoning and careful consideration that preceded each of the legal proceedings I commenced. I do not enjoy litigation and only enter it when all other avenues for resolving issues in dispute are ruled out.
Contributing Factor 1
– “Distant Past”
10. I had a successful career working on information systems for Australian Public Service departments from October 1975 and was promoted to various departments where they needed staff with expertise to fix long-standing software problems. After resolving each of these fairly quickly I would then look for a vacancy in another department with new challenges to solve.
12. In July 1991 I was first diagnosed with depression attributed to the harassing behaviour of my obsessed colleague.
13. In December 1992 I asked my then employer, the Australian Taxation Office for help, stating I was not able to continue working in the same area as my colleague. My employer decided to transfer us to different areas, and without telling me at the time, that we could return – if my harassing colleague requested and approved of my return.
14. In September 1993 my solicitor, after one telephone conversation with Geoffrey Seymour – the supervisor of John Growder – said I should lodge a complaint with the Human Rights Office over the circumstances in which I was transferred from my position.
15. This complaint evolved into an application to Comcare – to obtain a “Return to Work” program. My employer rejected proposals to negotiate any Return to Work, so the Comcare application continued as a long-running review process culminating with an AAT decision in June 1996 to reject the compensation claim for two brief periods of time off work for depression. I had lodged for the purpose of seeking a “Return to Work” program.
16. My appeal from the abovementioned AAT decision was upheld by Mansfield J in the Federal Court of Australia 10 years later, in 2006. [1]
Contributing Factor 2 – New
Information
17. Following my appeal that was upheld by the Federal Court heard in 2006, the AAT issued summonses that resulted in me being given 40 boxes of documents in 2009 related to my employment by the Fourth Respondent, the Commissioner of Taxation. I had not seen many of these documents previously.
18. Some of the documents revealed issues about the conduct of senior delegates my employer, the Fourth Respondent. The issues were relevant to the Respondents in this proceeding, and another related proceeding in the Federal Court in 1999. [2] That proceeding was about hardship payments I received after the First Respondent, Robyn Orr’s decision to suspend me from duty without pay from 13 October 1997.
19. Those new documents, copies of which are in a bundle which is annexure “CGD06”, relevant to answering Ms McKean’s affidavit include:
(a) John Higham’s minute of 29 July 1997 to John Whyte and John Growder. I had seen a description of this document in 2007,
(d) Geoffery Seymour’s documents dated 19 August 1997 and 14 October 1997 (intended for John Growder’s signature, after Geoff Seymour’s resignation) on terminating my employment by an “excess officer” process if the disciplinary process failed to achieve this objective. The 14 October 1997 was the date for a meeting between Robyn Orr, John Growder and me that had been scheduled before Geoffrey Seymour resigned. The meeting terminated abruptly before John Growder gave me the letter Geoffrey Seymour had written for him to use to terminate my employment.
(e) An instrument signed on 17 April 1998 by the Commissioner of Taxation– the Fourth Respondent - delegating Barbara Benson to be the decision maker under the Public Service Act 1922 (Cth), replacing Robyn Orr, that named me and the section of the PSA applying to officers suspended from duty. The delegation was accompanied by a minute with notes signed by John Whyte (who was advising John Higham on his investigation into allegations against me) and signed by Greg Farr, the immediate supervisor of Robyn Orr.
Contributing Factor 3
– The New versus the Previous Information
20. From December 1998 to July 1999, Greg Farr – the immediate superior of the First Respondent Robyn Orr - wrote repeatedly to my solicitor and/or to me asking for submissions on whether he should decide to make any hardship payments to me. Greg Farr was the author of a minute on 16 April 1998 asking the Commissioner of Taxation to delegate Barbara Benson a specific authority concerning payments to me. (See paragraph 19(e) and Annexure “CGD06”.)
(b) The ATO communication to Barbara Benson on 21 January 1999 - at paragraph 19(i) - shows her decision for hardship payments to continue to 31 March 1999 prevailed.
(c) Evidently the statutory constraints of the Public Service Act 1922 (Cth) prevented Greg Farr replacing that decision with another decision he strongly desired to make.
21. Hardship payments continued until they ended abruptly without notice on 31 March 1999. I did not know that Barbara Benson had a specific delegation to make decisions about hardship payments to me – at paragraph 19(e). I did not know she decided on 24 November 1998 – at paragraph 19(g) - I was to receive hardship payments to 31 March 1999.
22. In July 1999 I had still not received any further hardship payment and Greg Farr did not make any decision. I lodged an application in the Federal Court about this continuing financial hardship in July 1999. [3]
24. The section of the Public Service Act 1922 (Cth) for his purported decision did not apply to the hardship payments from 19 to 31 March 1999. These payments were in fact made due to Barbara Benson’s decision. Greg Farr’s purported decision could not replace her decision, not matter how strongly he felt about the matter.
25. The affidavits filed by the Australian Government Solicitor for Greg Farr and Michael Monaghan concealed the fact of the specific delegation and the decisions made by Barbara Benson. Greg Farr’s evidence to the Federal Court presenting a false narrative that he was going to make new a decision. This “new” decision was to replace the decision that I did not know had been made by Barbara Benson on 24 November 1998.
26. The decision Greg Farr told the Court he made could, at best, only explain hardship payments I received until 19 March 1999. The hardship payments continued to 31 March 1999, only because of Barbara Benson’s decision that I only learned of in 2009.
27. Another senior officer, Michael Monaghan filed an affidavit in that proceeding before Weinberg J. His evidence was that he was the delegate to decide about hardship payments to me.
28. The real issue in that proceeding, concealed from me and from Weinberg J in the Federal Court of Australia, was:
What prevented Barbara Benson making any decision under the delegation signed by the Fourth Respondent on 17 April 1998 about hardship payments to me after her last documented decision on 24 November, to extend hardship payments to 31 March 1999?
29. The purported decision Greg Farr made on 5 August 1999 was not valid. The hardship payments continued to 31 March 1999 because of the decision by Barbara Benson on 24 November 1998, concealed from me and from the Federal Court of Australia.
30. Neither the Federal Court nor I had the Fourth Respondents instrument signed 17 April 1998 delegating Barbara Benson to make decisions about me receiving hardship payments. The Court therefore could not make any finding about why she was “frozen out” by the ATO and why Greg Farr, and then Michael Monaghan usurped the authority delegated specifically to her by the Fourth Respondent.
32. I concluded that senior officers and delegates of the Fourth Respondent and their legal representatives believed that if a decision had been made and was concealed then it could be replaced with a different decision later.
Contributing Factor 4
– The New versus the Respondents’ Previous Information
33. John Higham gave oral evidence in July 2007 in the Federal Court of Australia to Besanko J that he never wrote a document that, by the description in the question he was asked, exactly matched the document he signed on 29 July 1997.
34. Robyn Orr gave oral evidence in July 2007 in the Federal Court of Australia that she had no involvement at all in the process after she had suspended me from duty on 4 June 1997. The memorandum she wrote on 15 August 1997 did not corroborate that oral evidence.
Contributing Factor 5 – The Evidentiary
Value of the New Information
35. The Higham minute of 29 July 1997 is described by Jagot J in her ACT Supreme Court judgment Dunstan v Highman [sic Higham] and Ors [2010] ACTSC 133 at [23]:
“…It is clear from Besanko J's reasons for judgment that the status and legal consequences of the 29 July 1997 document were not in issue in those proceedings. Yet the document is the essence of the present proceedings. … It necessarily follows that it cannot be found … that Mr Dunstan acted unreasonably by not raising the present claims before Besanko J.”
36. The Higham minute of 29 July 1997 is also described by Murrell CJ, Penfold and Rangiah JJ in the ACT Court of Appeal judgment Dunstan v Higham [2016] ACTCA 20, at [92], [93], [102] and [108]:
“92. … A decision to not charge the appellant was certainly capable of being made at the time the Minute was written, and the making of a decision at that time would be consistent with Mr Higham's obligation to make the decision "as soon as practicable".
93. It can be concluded that the natural and obvious meaning of the text of the National Office Minute was Mr Higham had already made a decision pursuant to s 61(2) of the Public Service Act to not charge the appellant with misconduct.
…
102. … the National Office Minute points strongly towards Mr Higham having made a decision on about 29 July 1997 to not charge the appellant ...
…
108. …the natural and obvious meaning of the National Office Minute is consistent with Mr Higham having already made a decision …”
37. The following opinion of the Respondents’ legal representatives about the Higham minute dated 29 July 1997 was first expressed in 2009. It is recorded by Jagot J in the ACT Supreme Court judgment Dunstan v Highman [sic Higham] and Ors [2010] ACTSC 133 at [14]:
“The defendants' essential submission is that the document of 29 July 2007 is not a decision at all and thus can have no legal significance.”
38. As an aside from my affidavit evidence thus far it is worth posing a rhetorical question having regard to the above paragraph:
Does Anshun estoppel apply to both parties, applicants and respondents, in legal proceedings?
Though the Respondents state they were entitled to not disclose the minute dated 29 July 1997 to this Court in the Besanko proceeding in July 2007, one must question the wisdom of their choice, having regard to:
(a) The proceedings that ensued from failing to disclose this document to Besanko J in 2007 only to submit in 2010 it was nothing other than “a document that was not a decision at all and thus can have no legal significance”, notwithstanding
(b) The contrary “natural and obvious meaning of the National Office Minute” that the ACT Court of Appeal set out in its judgment in 2016.
39. Had the Respondents tendered the minute of 29 July 1997 to Besanko J in 2007, not one of the proceedings that followed would have nor could have taken place. The entire Federal “matter” between the parties would have been settled in 2007. There would be nothing further to litigate arising from the Higham minute.
40. The further litigation that ensued, inevitably, from the Respondents’ decision in 2007 was part of the one Federal “matter”. Proceedings that comprise this one Federal “matter” have been conducted in this and other Courts since 2007.
Contributing Factor 6 – Consideration
of whether to commence legal proceedings
41. Before commencing the proceeding in the ACT Supreme Court in 2010:
(a) I requested the AAT to issue summonses to Robyn Orr and John Higham to give evidence at a hearing into my claim that had been referred to the AAT by Mansfield J in 2006. This would have allowed me to find whether there was anything about the new documents that was open to misinterpretation.
(b) Comcare, represented by the same Counsel who appeared for the Respondents in the Besanko proceedings successfully argued that the summonses the AAT issued be set aside, and
(c) Only then did I seek legal advice that recommended legal action. My solicitor and barrister shared the opinion of the 29 July 1997 minute that the ACT Court of Appeal held in its judgment six years later in 2016, that: “the natural and obvious meaning of the National Office Minute is consistent with Mr Higham having already made a decision”. There was no contrary information.
42. My counsel prepared the application lodged in the ACT Supreme Court on 17 May 2010 with my solicitor’s certificate about the merit of the case:
“I, Ron Clapham certify that I believe, on the basis of provable facts and a reasonably arguable view of the law, that this claim has reasonable prospects of success.”
43. Following the judgment of Burns J delivered four years later, Dunstan v Higham & Ors [2014] ACTSC 206, on 27 August 2014, both my junior and senior counsel expressed a view that the judgment was flawed and strongly urged me to file an appeal. In addition to appellable aspects my legal representatives were critical of, the date written on the top of the decision was wrong, and two corrigenda were issued, on 27 August 2014 and 2 September 2014 to correct various mistakes, reflecting little due care in the construction of the judgment.
44. After I had considered my counsels’ advice, I asked my solicitor to file the appeal in the ACT Court of Appeal that was prepared by my junior and senior counsel. This was filed on 22 September 2014.
45. The Respondents filed an application in the ACT Court of Appeal for security for costs, on 27 January 2015. Their application was at “last minute”, after the appeal books were printed, filed and served, and just one day before the Respondents advised the Court, on 28 January 2015, that the matter was ready for hearing in the May 2015 appeal sittings.
46. On the question of where to commence a proceeding, and whether the Federal Court of Australia had jurisdiction to make orders for restoring the losses I incurred in proceedings in other Courts was informed by the paper by the Hon. Justice James Allsop “An Introduction to the Jurisdiction of The Federal Court of Australia”.
47. The relevant excerpts are the paragraph at the end of page 22, and the conclusion of the paragraph at the end of page 27:
“When a right, as part of a claim or defence, which is said to arise under a law of the Parliament, is put forward by the party, the assertion of the federal issue, not its disposition, and not its merit, attracts the jurisdiction of the court to the relevant matter of which the federal issue forms part: Miller v Haweis (1907) 5 CLR 89 at 93; Troy v Wrigglesworth (1919) 26 CLR 305 at 311; National Union of Workers v Davids Distribution 91 FCR at [22]; Felton v Mulligan 124 CLR at 374; Australian Solar Mesh 101 FCR at 8-9; Westpac Banking Corporation v Paterson (1999) 167 ALR 377; and Hooper v Kirella 96 FCR 1 at [55], unless the claim or defence is made colourably, that is not genuinely or as a ‘mere subterfuge’ in order to fabricate jurisdiction: Burgundy Royale v Westpac (1987) 18 FCR 212 at 219.”
And
“If within that exchange a party asserts in the sense described above (see Owen Dixon KC’s evidence referred to above) a right or claim under a federal law, (whether by way of claim to be asserted or defence to be vindicated) there is a controversy in which one party is asserting a question arising under a federal law. If, thereafter, one party wishes to seek the aid of the Court to quell the controversy, it will be bringing a matter forward which has within it a question under a federal statute, even if the enunciation of the claim in the originating process contains no explicit foundation upon a federal statute. The justiciable controversy will be federal.”
Commencement of the Federal Court of
Australia proceeding in 2021
48. There was and is a continuing unresolved controversy between the Respondents and me. The Respondents have made no attempt to resolve this controversy by negotiation or by any other means.
49. The conduct revealed by documents from the Fourth Respondent in 2009 - about the proceeding before Weinberg J in the Federal Court of Australia, where the decision of Barbara Benson made on 24 November 1999 was replaced with the desired decision by Greg Farr on 5 August 1999 - mirrored the conduct in replacing what Robyn Orr believed was the first decision by John Higham dated 29 July 1997 with the desired decision on 13 October 1997.
50. I considered this mirror of behaviour as an explanation for why John Whyte was not called as a witness in the Burns proceeding:
(a) The Fourth Respondent demonstrated in documents about the decision on hardship payments by the delegate, Barbara Benson, that the statutory constraints of the Public Service Act 1922 did not allow the Commonwealth to replace any decision once she had communicated it to the Personnel area. The email to Barbara Benson dated 21 January 1999 asking if hardship payments could be stopped notwithstanding her decision that they continue to 31 March 1999 is evidence of this.
(b) The legal representatives for the Respondents in the ACT Court of Appeal hearing of my appeal from the decision in the Burns proceeding submitted that John Higham’s minute dated 29 July 1997 could not be a decision because it had not been communicated to me. In the transcript at pages P-80 to P-81 on 7 May 2015:
RANGIAH J: So the real question is what was communicated to Mr Whyte and Mr Growder - - -
MR STRETTON: Yes
…
MR STRETTON: We know one thing for sure, it wasn’t communicated to Mr Dunstan.
RANGIAH J: But did it have to be? It wasn’t Mr Dunstan who appointed - - -
MR STRETTON: No but if a decision was to be made with respect about him, then surely, he was the person who had to be notified one way or another of that decision.
(c) This is contrary to the position the Commonwealth confirmed on 29 January 1999, and by making hardship payments to me until 31 March 1999. After Barbara Benson communicated her decisions, to continue hardship payments to me until 31 March 1999, to the ATO Personnel Area, it did not matter that her decisions were not communicated to me.
(d) John Higham’s 29 July 1997 minute was communicated to John Whyte in the ATO Personnel Area. Every witness who knew of this communication gave evidence that they believed John Higham had decided he could not charge me with misconduct.
(e) In the Burns proceeding the legal representatives for the Respondents tendered a document in evidence on 28 August 2013 labelled “Dramatis personae”. It omitted John Whyte from the list of names. I believe it is reasonable to conclude this omission could only be because of careful consideration and that it could not be accidental.
51. The legal representatives acting on behalf of the Respondents – first the Australian Government Solicitor, then Clayton Utz Lawyers, and most recently Ashurst Australia in the present proceeding, have repeatedly filed affidavits on behalf of the Respondents that contain false and misleading statements.
(a) The legal representatives of the Respondents should have been aware of these false and misleading statements at the time they filed these affidavits.
(b) The legal representatives of the Respondents have not denied the allegations that the affidavits filed for the Respondents contain false and misleading statements.
52. In the judgement Rose v Secretary of the Department of Health and Aged Care [2025] FCA 339, Katzmann J stated at [100] – [104]:
|
100 The applicants filed the 3FASOC on 7 May 2024 — almost six months after AGS informed their lawyers that none of the individual respondents approved the vaccines. In these circumstances, the allegations of misfeasance in connection with the approvals are scandalous. I fail to see how it was reasonably open to the applicants’ lawyers, consistent with their professional obligations, to make the allegations of misfeasance relating to the approvals. It is no answer to point to the “asymmetry of information” or the availability of discovery as the applicants did both in correspondence and submissions. 101 The Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) relevantly provide that “[a] barrister must not allege any matter of fact in … any court document settled by the barrister … unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so”: see r 64. 102 Moreover, r 65 provides that: A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper basis for it; and 103 Identical rules appear at rr 63 and 64 of the 2011 Barristers’ Rules (Qld) as amended, notified under s 225 of the Legal Profession Act 2007 (Qld). 104 Similar provisions appear in the Solicitors’ Conduct Rules: see Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 21.4; Australian Solicitors Conduct Rules 2023 (Qld), r 21.4. |
53. Ms McKean in her affidavit at [14] alleges a matter of fact amounting to serious misconduct against me, namely “the applicant's access to restricted electronic data held by the ATO”. There was no concern I accessed restricted electronic data, and I did not access restricted electronic data. Nevertheless, I was concerned of the illegal access and alteration of secure electronic data held by the ATO that occurred in 1995 – detailed at paragraphs 62-71 below.
54. Ms McKean cannot believe on reasonable grounds that there is available material by which her allegation could be supported that provides a proper basis for it. Her affidavit is accompanied by the consistent evidence of the First, Second and Third Respondents that rebuts this alleged serious misconduct.
56. The affidavit of the Second Respondent, John Higham, annexed to Ms McKean’s affidavit alone is sufficient to show the lie in this serious, baseless allegation against me:
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34. On or about 20 June 1997, I met Mr Whyte in my office and obtained from him various papers, including: · … · A copy of a letter from Mr Dunstan to Mr Growder dated 18 June 1997. A copy of that report is annexed to this affidavit and marked with the letter "C". … 69. Mr Pasch said to me words to the effect of, "the records of Mr Dunstan's computer use suggested he may have been "navigating" the ATO computer system in search of a point of weakness …"... … 76. I am not aware of Mr Dunstan having reported to the ATO's Director of Computer Security that a weakness existed in the security of the ATO's taxpayer data. If Mr Dunstan had made such a complaint, he did not ever tell me about it. |
57. The annexure to the abovementioned affidavit of the Second Respondent John Higham marked with the letter “C”, at paragraph 4.2 states:
4.2 ...I advised the Director of Computer Security that this problem exists, that it is very serious, and it needs to be fixed. …
58. Although Katzmann J’s judgment would mean that Ms McKean should believe on reasonable grounds that:
“the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out”
The advice to the Respondents by their legal representatives in these proceedings is evidenced by the submission by the Respondents’ legal representatives in the proceeding before Wigney J. This advice, contrary to Katzmann J’s reference to “possible consequences”, is that the Respondents and their legal representatives have “Absolute Immunity” for anything said in evidence and submissions in all legal proceedings.
(a) This is consistent with the information that was false, misleading and material in Greg Farr’s affidavit of 1 September 1999 the Australian Government Solicitor filed in AG 58 of 1999 - Dunstan v Farr [1999] FCA 1551; 43 ATR 148.
(b) This is consistent with the information that was false and misleading in John Higham’s affidavit of 9 March 2007 Clayton Utz filed in ACD 77 of 1997.
(c) This is consistent with the information that was false, misleading and material in John Higham’s affidavit of 11 September 2011 Clayton Utz filed in SC 273 of 2010.
59. An article produced earlier this year is evidence that the submission by the Respondents’ counsel to Wigney J about “Absolute Immunity” is deceptive and misleading. This article “An Insight into the Doctrine Protecting Legal Practitioners in Court-Related Work”, 3 February 2025 states:
“While advocates’ immunity shields legal professionals in certain situations, it is not absolute [emphasis added]. The following are key exceptions where advocates’ immunity does not apply:
1. Dishonesty or Fraud: Immunity does not protect legal practitioners from claims involving fraud or dishonesty. If a lawyer intentionally deceives their client or the court, they can be held liable for their actions, regardless of whether their conduct was related to court proceedings. Example: The solicitor intentionally provides false or misleading statements to the court, knowing it would improve the chances of winning the case. …”
The Serious Allegation of Misconduct at
[14] in Ms Mckean’s Affidavit
60. There are no concerns or allegations that I accessed restricted electronic data held by the ATO.
61. However, if this serious allegation was accepted by the Court, it would dramatically improve the Respondents’ prospects success, as described in the preceding paragraph:
“The solicitor intentionally provides false or misleading statements to the court, knowing it would improve the chances of winning the case.”
63. I was absent from work throughout the second half of 1995 on long service leave and for almost all of 1996 on sick leave.
64. My investigation in January 1996 of the illegal access and alteration of restricted data held by the ATO included an inquiry via email on 3 January 1996 attaching NOMAD printouts to the department that maintained software for the NOMAD personnel system used by the ATO.
65. Later in January 1996 I typed up a summary of the results of that investigation and met with officials at the Department of Finance responsible for the Finance System that processes salary transactions generated by the NOMAD personnel system.
66. My note of 10 January 1996 records the advice from the department that maintains the software for the NOMAD personnel system used by the ATO. The following part of my note is a brief description of the illegal access and alteration of secure electronic data of the ATO:
“Inconsistency between:
Page 3: "Processed Leave". (showing "M/C" as "N" (No Medical Certificate), "Rate of Pay" and "Balances") and
Page 5: "Sick Leave with M/C Taken Since Last Accrual”, showing Medical Certificate details.
Cause: Someone has modified the database in some unexpected and incorrect manner.
(See Line K, change 2.)”
67. A copy of documents about this investigation I conducted in January 1996 and two documents exchanged between the Fourth Respondent and the ACT Human Rights Office in August 1995 - immediately before the illegal alteration of secure electronic data - are at annexure “CGD11”.
68. The illegal alteration of restricted electronic data had an adverse impact on my children and me. My salary entitlements were reduced by 11 days, resulting in no child support payments being made for my children at Christmas 1995. My medical insurance for my children lapsed due to the cessation of automatic premium payments.
69. At a Senate Economics Reference Committee hearing about “the operation of the Australian Taxation Office” on 13 October 1999, Greg Farr volunteered “vindictiveness” as a motive for illegal access to ATO electronic records. He avoided telling the committee of cases where secure data was not only unlawfully accessed but had been illegally altered. Before the illegal access and alteration of secure data in 1995 I investigated, I believed fraud would be the only motive behind illegal access and alteration of secure electronic data in the ATO.
70. File notes the Fourth Respondent supplied to the AAT in 2009 showed that the ATO Personnel area was aware in January 1996 that:
(a) I met with officials at the Department of Finance, and
(b) Junior salaries clerks in the Personnel area gave me printed copies of the NOMAD transactions to process what they believed was an application from me for two weeks sick leave without a medical certificate. (Clearly, the junior salaries clerk did not know there was anything amiss with the transaction they created.)
“At this time, I had no direct dealings with Colin DUNSTAN but I became aware that the Personnel Section had ongoing dealings with him. I was also aware that these dealings had originated from a relationship he had had with a female co‑worker. I don't know her name or any further details.”
Fresh facts, theories, fresh evidence and
diligence
72. My experience in resolving one long-standing problem shows what I believe is the correct distinction between these concepts. A similar experience preceded and was my reasoning for commencing the Federal Court case in 2021.
73. The Department of the Capital Territory, now the ACT Government, had contracted ICL Australia to develop a computer system to manage about 30,000 home loans accounts. It was keeping these accounts on paper records maintained by many accounting machine operators.
74. When the four senior analysts employed by ICL Australia had completed the software, a large data entry process was completed to transfer the information from the 30,000 paper records into electronic format.
75. One of the criteria for final payment to ICL Australia was a test that an accounting reconciliation summary could be produced after every daily “transaction run” showing many different financial sub-totals and, importantly for the accountants, a total at the top of the report had to be identical to a total at the bottom of the report.
76. Unfortunately, for two years the ICL systems analysts had been unable to complete this final requirement. For most runs, the summary report was correct. Inexplicably, a small discrepancy occasionally was generated.
77. For two years, the Department of the Capital Territory accumulated daily payment transaction files that had to be processed, eventually, against the 30,000 electronic records of the data from the paper versions of home loan accounts. It could not go back to update the paper records.
78. For those two years ICL Australia had to employ its four systems analysts to try to resolve the inexplicable and intermittent error in their system’s reconciliation report. It does not receive the final payment for completing the system until this test was performed.
79. About this time the Department of the Capital Territory decided it had to employ some additional staff with IT expertise to deal with steadily growing problem of how to process 2 years of accumulated payment transactions for its 30,000 home loans customers.
80. I began work in the Department of the Capital Territory as a result. Shortly after I obtained a copy of the program that generated the reconciliation report that mostly produce a correct output and intermittently produced an output with discrepancies.
81. The program change history showed the four ICL systems analysts had made numerous small changes to the program over a long period of time. There were few software development tools at this time to help validate the operation of programs.
82. I chose one set of valid input data for validating that the computer program would produce valid output. The input data I used was just the balance owing, interest rate and a monthly instalment for one loan account. It took me 3 to 4 hours with a piece of paper next to the program, with a column to write the value for each intermediate variable, so that as I evaluated each line of the program, I recorded every change in the value of the intermediate variables.
83. At the end of this process, I concluded the program was correct. The myriad changes to the program made over the previous two years had made no progress in changing the correctness of the output.
84. After pondering this for short time, a thought occurred to me. A theory. I cannot explain or describe the process for this thought coming to mind. I am not aware of how this happened. The theory that came to mind was that if the program is correct when it processes correct input, it might produce an incorrect output if the input data is not correct.
85. I changed the test data I had used so that the input was now incorrect for another evaluation of the program. Specifically, I reduced the monthly instalment so that it was less than the monthly interest calculated from the balance owing and the interest rate. Loan balances should always reduce eventually to nil. If the monthly instalment has been calculated incorrectly, to be less than the monthly interest, then the loan balance will grow indefinitely and never fall to nil.
86. After another 2-3 hours evaluating every line of code in the program, I confirmed this theory – the program did produce the incorrect output that had been seen if the input data is incorrect. I asked the programmer replacing me on the afternoon shift that day to write a program to read the 30,000 home loan accounts and produce a report of any where the instalment amount was less than the calculated amount for monthly interest payable. Their program found a small number, about three, out of the 30,000 accounts had this error. The system written by the ICL systems analysts only produced an incorrect report, with a small discrepancy, on those random occasions when it processed a payment made by a customer with one of those few accounts that had this error.
87. The theory, followed up by considerable research, eventually led to the discovery of a fresh fact. The evidence was there all the time.
My decision to commence Federal Court
proceedings in 2021
88. John Higham’s “Final Report” said to have been written in October 1997 was used in John Higham’s affidavit of 2007 in the Besanko proceeding, in his affidavit of 2011 in the Burns proceeding, and in Ms McKean’s affidavit of 16 May 2022 in the Wigney proceeding.
89. This “Final Report” is described inaccurately by Murrell CJ, Penfold and Rangiah JJ in the ACT Court of Appeal judgment Dunstan v Higham [2016] ACTCA 20, at [45]:
“When Mr Higham eventually decided to charge the appellant with misconduct, a document was provided to the appellant in the same terms as the draft report, save that the word ‘draft’ was deleted.”
90. Not only was the word “draft” deleted:
· The date the draft was written, “11 July 1997” was deleted, and not replaced with any other date, and
· The name of the author “John Higham” was also deleted.
91. A more prominent inaccuracy was the phrase “a document was provided to the appellant in the same terms as the draft report” – when Mr Higham eventually decided to charge me in October 1997. This was inexplicable because:
(a) At the May 2015 appeal hearing, Penfold J volunteered a comment that showed her understanding which was correct and quite clear. She confirmed that the Court knew a “Final Report” had not been sent to anyone when John Higham eventually decided to charge me with misconduct in October 1997, and
(b) It was ten years later when I first saw this document, annexed to John Higham’s affidavit of March 2007 in the Besanko proceedings, when it was sent to me by his legal representative, Robert Cutler of Clayton Utz Lawyers.
92. Later, after noticing this puzzling misstatement in the judgment in 2016 a theory came to mind that perhaps the “Final Report” had not been written in October 1997 at all.
93. I was compelled to re-examine this matter when the question of legal costs was brought on. The bill of costs for the Respondents revealed that after the appeal hearing there was communication between Clayton Utz lawyers for the Respondents and the ACT Court of Appeal. This previously unknown communication raised the possibility that the Respondents believed it was important to establish evidence that the “Final Report” existed in 1997.
94. This paralleled the tactic in 2002, where the Australian Taxation Office did not want to say hardship payments to me were authorised by a decision of Greg Farr – which they were not - and did not want to reveal the decision of Barbara Benson – real authorisation for the payments. Instead, it claimed the payments were “authorised” by a statement found in the judgment of Weinberg J. This ACT Court of Appeal judgment raised the possibility that the incorrect statement about the “Final Report’ being sent to me was only useful to the ATO. No one else had any motive for making such a mistake.
95. The Respondents’ legal representatives submitted that this allegation in my amended statement of claim in the Wigney proceeding commenced in 2021 was merely a theory.
96. Their submission is a misrepresentation, glossing over the intervening period in which I examined available evidence to test the theory and researched legal precedents to understand what was required for a case to have reasonable prospects for success.
97. The allegations in my amended statement of claim in the Wigney proceeding began from a theory that occurred to me in 2016. There was considerable investigation to test the theory before I prepared and lodged the application in the Federal Court of Australia in 2021. I could not have made those allegations at any earlier time because I did not know the facts which underpin them. The evidence was there all the time. The facts that were concealed, scattered in the evidence, were not known to me.
98. I wrote to the Fourth Respondent in December 2021 and the Respondents’ legal representatives in January 2022, asking if they had any contrary evidence.
(a) They chose to not reply.
(b) They chose to not deny the allegation.
(c) Of the hundreds of pages of affidavit evidence filed by the Respondents’ legal representatives in the Wigney proceeding in 2022, there is not one page that hints at the “Final Report” existing in 1997. One of the documents the Respondents’ legal representatives put in evidence shows the opposite. It corroborates the allegation that the “Final Report” did not exist in 1997.
The importance of
legal representation
99. I arranged for a barrister to represent me at the hearing that was held before Wigney J in September 2022. My reasons originally included that I believed it was important to have an experienced advocate with the knowledge to be able to respond to anything arising at the hearing, and because I find it stressful and difficult to do this work.
100. Two further reasons arose while considering whether to make a request I did eventually make for Wigney J to recuse himself. These were from information Wigney J volunteered at his swearing in ceremony on 9 September 2023 on his attitude to self-represented litigants and his relationship with Ian Temby QC in 1998, the partner of Diana Temby:
“MR J. GLEESON SC: …In 1998 you helped establish Third Floor St James Hall Chambers, led by Ian Temby AO QC, where you remained until today. …
…
WIGNEY J: …Famous victories against self-represented litigants in the Wallsend Local Court became the stuff of third floor folklore. As much as I would love to, I cannot mention everyone from my old floor, but I must mention two. First, I must thank Ian Temby, who comes about as close to being my mentor as anyone. …”
101. Diana Temby was the executive director of the Human Rights and Equal Opportunity Commission at the same time, in 1998, and made statements to the Australian Federal Police in December 1998 that showed great hostility towards me. At the time I did not know she was employed at HREOC and had no communication with her over the previous years. Staff I had spoken with noted I was never threatening. Diana Temby however alleged in statements to the AFP that I had made threats against staff.
102. An unfortunate set of circumstances resulted in me being required to appear without my barrister. I was waiting for a decision from Burley J on an application I made for leave to appeal from the decision of Wigney J to not recuse himself.
103. My barrister had a case due to end on Friday, but was required to continue the following week when it did not finish when expected. There was a decision pending on my application for Wigney J to recuse himself.
104. The decision by Burley J was emailed to me early Saturday morning – at 3:45 AM, 17 September 2022 - on the weekend before the hearing was to commence. Because of the unusually timed delivery of the decision, I could not contact my barrister before the hearing was to proceed.
105. The respondents rejected every one of my requests to consent to vacating the hearing. Wigney J refused my applications to vacate the hearing at the commencement of the hearing, and to adjourn after hearing my application for access to documents so that I may be legally represented for the hearing of the respondents’ application.
Communications
with Ashurst Australia and “the other proceeding”
106. In Ms McKean’s affidavit, paragraph [22] refers to my application dated 18 December 2023 for leave to appeal from the judgment of Wigney J delivered on 7 December 2023.
107. This is immediately followed in paragraph [23] of Ms McKean’s affidavit which is a statement about my application dated 30 August 2024 commencing the present proceeding.
(a) My application on 11 July 2024:
i. That the hearing date of 4 September 2024 for my application for leave to appeal be vacated, and
ii. For the judicial review of what I considered an unexpectedly delayed decision by Registrar Morgan dated 8 July 2024 refusing to accept for filing my application lodged 15 days earlier, on 23 June 204 to commence the present proceeding,
(c) The transcript of the hearing of my judicial review application on 23 August 2024,
(d) My letter of 26 August 2024 to Kennett J following the hearing, addressing what I described as a “dilemma” [4] at the conclusion of my submissions at the hearing, and
(e) The judgment Dunstan v Morgan [2024] FCA 982, of Kennett J on 28 August 2024.
Relevant
documents omitted from Ms McKean’s affidavit
110. Ms McKean’s reference at [29b] to the letter in the Statement of Claim at [34] corrects the mistaken date of a letter, 16 November 2023 [sic, 2022].
111. Relevant evidence for this proceeding is my correspondence with the Respondents’ legal representative, Ashurst Australia that was exchanged after the hearing in September 2022 and before the judgment was delivered in December 2023.
112. This communication to Ashurst Australia was intended to make Ashurst aware that evidence it used and submissions it made suggested it had been misinformed and deceived by its clients.
113. In this communication, I was following the steps shown to be appropriate and adequate in the Wavetrain judgment. [5] In that example, the legal representative for the respondent, aware of material deceptive evidence filed for the applicant, informed the applicant’s legal representative who accepted responsibility for that evidence and informed the Federal Court of Australia, at [7]:
“The solicitors for the applicant said they notified the Court pursuant to rule 20.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) and apologised unreservedly to the Court and the respondents.”
114. Ashurst Australia refused to act as happened in Wavetrain, expressing the opinion in its letter to me dated 7 February 2023:
“Thank you for your letter of 1 February 2023, and the further information you have provided.
Having reviewed and considered, we remain of the view that no obligation of the type in rule 20 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) arises.”
115. My concerns, clearly conveyed in that communication, over the deceptive representations and evidence before Wigney J remained unresolved, until now.
(a) My email and letter to Ashurst Australia, dated 12.10.2022.
(b) My email and letter to Ashurst Australia, dated 07.11.2022.
(c) Email with letter from Ashurst Australia in reply to me, dated 16.11.2022.
(d) My email and letter to Ashurst Australia, dated 01.02.2023.
(e) Email from Ashurst Australia in reply to me, dated 07.02.2023.
The Dichotomy of an Application to Set
Aside a Judgment versus Leave to Appeal
117. Horan J expressed a view on this at the first case management hearing on 6 June 2024 after I lodged an application for leave to appeal. That application had to be commenced within weeks of the judgement delivered by Wigney J in December 2023, and there was little other option given the amount of information to examine in the time available:
MR DUNSTAN: there are two quite separate issues. One is the leave to appeal [application], which has to do with errors I would see in the judgment that Wigney J handed down, [and] the failure of the respondents and their solicitors to inform the court of what has happened and their failure to comply with the duty to the administration of justice. It is quite a separate matter and can be dealt with without the need for my application to proceed.
HIS HONOUR: There’s only one matter before the court, that’s your application [for leave to appeal].
118. Ms Firkin KC for the Respondents before Horan J, and Federal Court Registrar Morgan both stated that an application for leave to appeal was the only option for seeking to overturn the judgment by Wigney J.
119. Kennett J in his judgment Dunstan v Morgan [2024] FCA 982, on my question of a situation in which both, rather than one or the other application may be the correct approach said at [14]-[15]:
…Her Honour [Perry J, in Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617] observed at [62] that it is generally appropriate for a party wishing to impeach a judgment on the ground of fraud to institute independent proceedings for that purpose. The Registrar thus erred in law in proceeding on the basis that an appeal was the only means by which the judgment in Dunstan v Orr (No 2) could be impugned.
This is not to suggest that the allegations of fraud which Mr Dunstan seeks to pursue would not be capable of being raised and determined in an appeal from Dunstan v Orr (No 2), assuming that leave to appeal is granted. … The commencement of a separate proceeding seeking essentially the same outcome might be regarded as an abuse of process. Alternatively, one proceeding or the other would be likely to be stayed. However, Mr Dunstan currently requires a grant of leave in order to pursue his allegations in the appellate jurisdiction.
120. The Respondents’ submissions in this proceeding have retreated from Ms Firkin’s assertion made at the final case management hearing before Horan J of there being only one way to overturn the judgment of Wigney J – that being by an application for leave to appeal. The latest submission, omitting any consideration of the cause of error, states:
“The conventional method by which a disappointed party would raise an argument that a judge of this Court has committed a legal, factual or discretionary error material to a judgment the judge has given is for that party to seek to access the appellate jurisdiction of the Court. …”
Evidence for contribution to material
errors in the judgment
121. The only evidence before Wigney J that alleged false evidence by John Higham, namely that he claimed he wrote his “Final Report” in 1997, was … the evidence that was alleged to be false. In the transcript of ACD93/2021 20.9.22 at page P-72, line 43:
HIS HONOUR: Well, Mr Higham’s evidence was that the report existed.
122. There is one specific example with which the competing authorities of Anshun estoppel and Fraud on the Court can be ventilated and resolved:
(a) Robert Cutler’s sworn list of documents filed 27 March 2007 in the Besanko proceeding is evidence he had in his possession a copy of Tony Burslem’s minute dated 29 July 1997 with legal advice for John Higham, John Higham’s minute of 29 July 1997 and Geoffrey Seymour’s memorandum to Richard Highfield dated 30 July 1997.
(b) Robert Cutler filed John Higham’s affidavit of 11 September 2011 in the Burns proceeding in which John Higham stated at [10] that he was “somewhat disturbed and puzzled” when he received the written legal advice from Tony Burslem on 29 July 1997.
(c) The judgment in the Burns proceeding relied upon this evidence. [6]
(d) At the time Robert Cutler filed John Higham’s affidavit in 2011 he knew, or ought to have known, that John Higham was not disturbed and puzzled by the legal advice in Tony Burslem’s minute dated 29 July 1997.
i. The legal advice was the subject of discussion between John Whyte, John Higham and Tony Burslem at a meeting two weeks earlier, on 14 July 1997, and was confirmed in writing on 29 July 1997.
ii. John Higham’s minute of 29 July 1997 states he was at the stage of deciding to charge me when he wrote his draft report dated 11 July 1997 – and he then discussed this draft with Tony Burslem. That he changed his mind because of that discussion on 14 July 1997 – was a material fact that Robert Cutler knew, or ought to have known.
(e) That John Whyte was present at the meeting with John Higham and Tony Burslem on 14 July 1997 is significant. John Growder denies having received John Higham’s minute of 29 July 1997. The only other person to whom John Higham sent it was John Whyte. On or before 30 July 1997, Robyn Orr, Geoff Seymour and Richard Highfield were in no doubt John Higham decided he could not charge me with misconduct.
(f) Robert Cutler was in possession of evidence from which he knew, or ought to have known neither John Higham nor John Whyte was disturbed and puzzled by the written legal advice John Higham received on 29 July 1997. John Whyte was expecting John Higham’s decision – in writing - because of the discussion at the meeting he attended with him on 14 July 1997.
123. During the hearing before Wigney J, his Honour remarked on a submission by Ms Firkin KC that what she was proposing – on diligence – was contrary to the line of authority. The judgment of Wigney J does not reflect what he said to Ms Firkin KC at the hearing on authorities on diligence. This is recorded in the transcript for 21 September 2022, at page P142, Lines 6-22:
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MS FIRKIN: The fresh facts must be material to the actual outcome of the original action. Now, as Mr Dunstan adverted to yesterday, there’s not an obligation on a party claiming fraud to have exercised reasonable care or due diligence to discover the fraud, but that does not mean that parties are simply at liberty to reagitate ad infinitum new points that they have failed to raise in previous proceedings, and that is especially if they rely on nothing more than the evidence upon which they have previously failed. HIS HONOUR: So things like new arguments based on documents or other evidence, that’s not sufficient to amount to a new fact. MS FIRKIN: Yes, your Honour. HIS HONOUR: That’s a different – it’s different to the line of authority about not diligently acting. MS FIRKIN: Yes. |
The Origin of the Controversy
127. After I expressed serious reservations about working with Anne Hanh, she obtained an agreement from Geoff Seymour that she could return to work alongside me, until he transferred both of us to different areas. That if one of us was to return then both would at the same time. I would not be allowed to return unless Anne Hanh consented.
128. After this, Anne Hanh made an application for a restraining order against me. In the application she alleged I had been seen waiting in my car near her workplace to harass her. I had receipts with the time I left a car-parking station more than a kilometre from Anne Hanh’s workplace – for claiming a refund of parking charges. When my solicitor showed these to Anne Hanh’s solicitor at the ACT Magistrate’s Court she withdrew her restraining order. She agreed to let me return to my former position in exchange for me not seeking costs against her.
129. I spoke to Geoff Seymour about Anne Hanh agreeing for me to return. He then said that there was another obstacle. My solicitor spoke by phone to Geoff Seymour. Following this call my solicitor told me I should lodge a discrimination against the Tax Office about being transferred from my position as I was the victim workplace harassment to ACT Human Office.
130. I later wrote to the Tax Office soon after saying I did not want compensation. I would be satisfied with an apology and my position back. The ATO did not reply but the ATO continued to victimise me. See my affidavit dated 11 August 2011 filed in the Burns proceeding in the ACT Supreme Court describes acts of victimisation against me by delegates of the Fourth Respondent. Ms McKean has filed a copy of that affidavit, without annexures, in this proceeding. It is in the annexure “MCM-1” of Ms McKean’s affidavit affirmed 14 March 2025, at pages 387 – 437 withing document 7 of that annexure.
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Affirmed by the deponent at Gungahlin in the Australian Capital Territory on 14 May 2025 Before me: |
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Signature of witness
Name
Qualification
Address of witness
[1] Dunstan v Comcare [2006] FCA 1655
[2] Dunstan v Farr [1999] FCA 1551
[3] Dunstan v Farr [1999] FCA 1551 (12 November 1999)
[4] Transcript, page P-15, lines 5 to 23 in ACD47 of 2024, 23 August 2024.
[5] Wavetrain Systems AS v Next Generation Rail Technologies SL [2019] FCA 350
[6] See Dunstan v Higham 2016 ACTCA 20 at [54]:
“…His Honour said that the Minute was written immediately upon receipt of the advice from the Australian Government Solicitor, which not only explained its brevity, but was itself suggestive that it was not intended to be a final determination.”
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