“In making this affidavit, I am not instructed or authorised, and nor do I intend, to waive any client legal privilege or legal professional privilege of any of the respondents or of any person whatsoever. To the extent that any part of this affidavit might be construed as such a waiver, if read, I withdraw and do not rely on that part.”

3. Observations about this cautionary statement’s absence of a sense of proportion:

a. This proceeding originates from the conduct of a handful of senior Australian Taxation Office (“the ATO”) officers who became fixated with preventing one Commonwealth officer performing his duties, as a manager in the ATO’s Database Administration section, many years ago.

b. In view of this objective nature underpinning the proceeding, and the material already available, it is incredulous that the ATO has even more undisclosed records and that it harbours fears implicit in Ms McKean’s statement.

4. A real issue with the statement is that many documents that on their face are plainly subject to legal privilege are no longer privileged because of communications that have resulted in the waiving of that privilege. Ms McKean’s affidavit at paragraph [11] notes her involvement in the litigation commenced approximately January 2022.

5. The Applicant wrote to Ms McKean on 28 April 2025[1] attaching many of the communications of information that was legally privileged, to request that she send:

a. The two documents dated 12 June 1997 over which privilege was waived by the communication by the Australian Government Solicitor on 6 August 1999 of a file note dated 18 June 1997 by John Growder, and

b. Copies of redacted portions of documents annexed to her affidavit where privilege has been waived by communications from previous legal representatives and the Commissioner of Taxation prior to Ms McKean’s involvement.

6. Mr Pipola of Ashurst Australia wrote in reply on 9 May 2025, denying that privilege was waived and declining to consider these requests. [2]

7. It is requested that the Court direct the Respondents provide the Applicant with copies of the abovementioned documents over which privilege has been waived, and that they review legal privilege claims over redacted parts of the documents annexed to Ms McKean’s affidavit, providing unredacted copies where privilege no longer exists.

B. INTRODUCTION

8. These submissions are pursuant to Order 2 b of Thawley J made on 13 December 2024:

On or before 4pm on 15 May 2025, the applicant is to file and serve:

b. any outline of written submissions, with a limit of 20 pages, on which he proposes to rely – in opposition to the relief sought in any application filed pursuant to Order 1.

9. The Applicant lodged documents to commence the present proceeding in the original jurisdiction of the Federal Court of Australia on 30 August 2024. In this proceeding, the Applicant claims that the judgment of the court in Dunstan v. Orr (No 2) [2023] FCA 1536 by Wigney J on 7 December 2023 is vitiated by errors, including:

a. That access to documents in the Court file and copies of unredacted copies of documents filed by the Respondents in that proceeding – and now in this proceeding – was not decided according to law. Namely, where privilege has been waived, a later decision on privilege “on the face of the document” has no effect. The preceding waiving of privilege remains.

b. That the Respondents’ application for summary judgment was granted without proper consideration of the relevant legal principles, and

c. That the Applicant’s application for summary judgment was not granted without any consideration of the relevant legal principles.

10. The Respondents have not filed a defence and have not denied the allegations in the Statement of Claim.

11. On 14 March 2025 the Respondents’ legal representatives filed an affidavit in support of the application for summary judgment or, in the alternative, the Statement of Claim filed on 29 November 2024 be struck out:

a. The affidavit alleges serious misconduct by the Applicant.

b. The allegation of serious misconduct is false and misleading.

c. The allegation of serious misconduct plainly and clearly improves the Respondents’ chances of the winning the case.

d. The affidavit includes redacted documents where the Respondents’ legal representatives do not know and have not considered whether privilege has been waived over any or all the text that is redacted.

e. The affidavit is materially deceptive and misleading, clearly intended to falsely portray the Applicant as an unreasonably persistent litigant.

12. The deceptive and misleading material in the affidavit filed in support of the Respondents’ summary judgment application, mentioned above and described further in the following paragraphs are consistent with a pattern of behaviour of the Respondents and their legal representatives.

13. Ms McKean’s affidavit of 14 March 2025 filed in support of the Respondents’ summary judgment application has further material deceptive and misleading contents. At [14] and [15] the assertion that litigation concerns a disciplinary process in 1997 is not only false and misleading in alleging the disciplinary process was about “access to restricted electronic data held by the ATO.”

14. The Applicant’s affidavit of 14 May 2025 addresses Ms McKean’s serious and improper allegation against the Applicant. It is addressed in the Applicant’s affidavit at [52] – [59] and in the section headed “The Serious Allegation of Misconduct at [14] in Ms Mckean’s Affidavit” at [60] – [71].

15. Ms McKean’s affidavit of 14 March 2025 at [14] is also materially misleading and deceptive about the origin of the litigation, that this was in 1997. The Applicant in his affidavit of 14 May 2025 in reply addresses the origin of the litigation:

a. Four years earlier, in 1993[3] the Applicant had made complaints of harassment and discrimination in employment, and in 1994 lodged a claim with Comcare for a Return-to-Work program to return to the position of Assistant Director, Database Service from which he was removed in early 1993.

b. A letter from John Whyte, Personnel Manager, ATO dated 23 August 1995 to the ACT Human Rights Office[4] clearly conveys that ATO officers harbour antipathy towards the Applicant at that point.

c. Action taken by ATO officers against the Applicant in 1995 reflects that deep antipathy. [5] At that time the Applicant had accrued a balance of 14 weeks for sick leave with full pay, and applied for 11 days paid sick leave, using a little of that accrued leave. The secure electronic data of the ATO representing that leave application, authorised by his supervisor, was illegally altered to appear to be an application for which there was no entitlement to paid leave. The application for sick leave with a medical certificate (“SLWMC”) was illegally accessed and altered to look like an application for sick leave without a medical certificate (“SLW/OMC”).

d. It is nonsensical that any ATO employee with an available balance of 14 weeks paid sick leave would apply for 11 days sick leave without pay. The illegal alteration of secure electronic data of the ATO was incomplete, showing the perpetrator had a low level of skill. The secure electronic data record describing the medical certificate was left in place, providing clear evidence of the illegal access and alteration of the application for sick leave to which the certificate previously had been linked.

e. The annexed documents with Ms McKean’s affidavit of 14 March 2025, at page 622, are notes of a meeting between John Whyte, Personnel Manager, ATO with John Molyneux, Human Resources Advisor, ATO early in 1997. The discussion canvasses options for terminating the Applicant’s employment that were available in the Public Service Act 1922 (Cth). Note the suggestion on how to engage the disciplinary option did not involve any concern about access to ATO data:

John Whyte x 62175 Ground Floor Office adjacent to counter

Complex personality + Medical history

Won't go away

Tangled up in legal situation.

MPRA (???, etc—- withdrew some on condition that J Wilkinson was investigated), HREOC, AAT (1^st knocked back at AAT & Fed Court, Depression - 2^nd reconsideration) & Fed Ct. Small Claims Court action (Staff clerk and ??? staff } 4).

We are defending the people.

?? Medical = fit for duty as SITOB : was working on project

(s566A considered)

?? Inefficiency – Behaviour & effect on work place.

- IRC Pres. Duncan (6 months ago).

Persisting & intimidating personality.

? * VR [Voluntary Redundancy]. IT going to team environment...

- Advice from AGS : Small claims action in ACT {Spending time at ANU law office.

? * Discipline : eg. Absent from workplace. [emphasis added]

Grievance : investigated by Ralph Lummis (ats John Wilkinson) leaked info.

~ Harassment cases:

HREOC ruled ats him. Harassment – Geoff Seymour, Don Bartley. Sex Harassment – Anne Hanh.

f. The Third Respondent John Growder’s immediate supervisor, Geoff Seymour was one of the ATO officers harbouring deep antipathy toward the Applicant. He resigned before October 1997, shortly after Finn J made orders on 19 August 1997 in the Federal Court of Australia that he file a discovery list on ACD 30 of 1997.

g. At the date of his resignation, the senior ATO officers involved were uncertain that the Second Respondent John Higham would agree to charge the Applicant with misconduct. A meeting had been scheduled for 14 October 1997 with the Applicant, the First Respondent and the Third Respondent. In preparation for that meeting, Geoff Seymour signed a document making the Applicant’s position potentially surplus, and wrote a letter dated 14 October 1997 intended for the Third Respondent, John Growder to hand to the Applicant at the planned meeting to ensure the Applicant knew that his employment was to be terminated no matter what the Second Respondent John Higham might choose to do. [6]

C. LEGAL PRINCIPLES

16. The applicable principles for the Court’s consideration of a summary judgment application and that in substance the same principles apply as between s 31A and r 26.01 are summarised in the recent Federal Court of Australia judgment Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458 by Mortimer CJ at [15]:

In relation to s 31A and r 26.01, I have summarised my approach in Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [46]–[52] and rely on that approach, including by reference to the authorities there referred to. There was no dispute that generally the Court should approach its task under s 31A (and r 26.01) on the basis that “[w]here there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on [a] factual issue”: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [25] (French CJ and Gummow J).

17. Two principles of relevance to this case are referred to in the above judgment of Mortimer CJ. The first of these is stated at [17]:

In particular I emphasise what I said in Plaintiff M83A at [48]:

Despite the acknowledged broadening of the approach for summary dismissal brought about by s 31A, in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [25]-[26], French CJ and Gummow J also recognised a proceeding should not be summarily dismissed simply because the allegations in a proceeding challenge existing law, or involve questions of fact which would be difficult to prove. Indeed, Spencer itself involved allegations of this character, both as to law and fact. This is one reason it is important for Courts to be cautious in exercising summary dismissal powers. The law advances and develops though claims thought at the time to be novel, and which are sometimes made in circumstances of considerable controversy.

18. The second of these principles is described at [94]:

94 …The object of s 31A is not to permit respondents to pluck certain legal aspects of an applicant’s case out of context, encourage the Court to examine them in fine detail and analysis, reach final conclusions about them and thereby avoid a trial.

Adding to this description of the principle at [19]:

19 The parties’ submissions traversed a range of factual matters which it would not be appropriate for me to canvass in these reasons given the conclusions I have reached, and the orders the Court has made. The matter will go to trial in the usual way, and the facts will be determined on the basis of the evidence adduced at trial.

Proceedings for Setting Aside Decisions

19. The Applicant at first lodged an application for leave to appeal from the judgment Dunstan v. Orr (No 2) [2023] FCA 1536. [7] The Applicant discontinued that application as soon as it was practical to do so - after the judgment Dunstan v Morgan [2024] FCA 982 by Kennett J was delivered on 28 August 2024.

20. The Applicant contends that the Respondents made false and deceptive submissions – perpetrating fraud, and that Wigney J also erred.

21. A question whether the Applicant should apply to set aside the judgment on the grounds of fraud AND apply for leave to appeal on the grounds of errors was considered in the decision Dunstan v Morgan [2024] FCA 982[8] by Kennett J 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.

22. Pursuing allegations of fraud in the appellate jurisdiction, if the leave to appeal is granted, is contrary to the over-arching principle for litigation in the Federal Court of Australia; it compels the parties and the Court to conduct a Full Court hearing of an appeal rather than a hearing before a single judge in the original jurisdiction of the Court.

23. An inference from the judgment of Kennett J is that alleged errors made in the judgment may be ventilated in the proceeding to set aside the judgment on the grounds of fraud.

Fraud Unravels All

24. Authorities on setting aside judgements where fraud has occurred rarely consider the situation where judgment was given for the party that committed the fraud because of errors made in reasons for the judgment.

25. In a submission considered by Kennett J in his decision, the Applicant said of the authority Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766:

[In] this decision, …[their Honors] said, “Well, the respondents might have won had they simply relied upon valid evidence, but because they’ve inserted this fraudulent piece, we’re going to grant the relief sought by the litigant. They – the respondents - aren’t entitled to keep a decision, even if they could have won had they not inserted this fraudulent element into their case”, and that seems to water down the requirement that the fraud has to have a material effect on the judgment even. It’s altering that authority, your Honour.

26. A summary of the judgment was also published on 21 December 2021. This was nine months before the hearing in September 2022 by Wigney J of the Respondent’s application for summary dismissal.

27. The Respondents’ legal representatives failed to mention this significant and relevant authority [9] at the September 2022 hearing. Published summaries available in December 2021 include the statement:

The fact that, prior to the original proceedings, the party was aware of the factual circumstances now relied on to plead fraud did not mean that the action was an abuse of process.

28. Throughout the chain of litigation, the Respondents have relied upon the alleged fraudulent evidence of the Second Respondent, John Higham, that he wrote a “final report” in October 1997 when he states he decided to lay charges against the Applicant under the Public Service Act 1922 (Cth). That alleged fraudulent evidence is annexed to the affidavit filed by Ms McKean in support of the Respondents’ present application.

D. SUBMISSIONS

29. There is a theme of persistent contemptible conduct by the Respondents, their legal representatives, and other senior delegates of the Fourth Respondent in litigation. The dominant issue is not about the doctrines of finality and fraud which unravels all. It is the erosion of public confidence in the administration of justice by the abject failure of the Respondents to conduct litigation in good faith.

30. Two proceedings where the Federal Court of Australia was deceived, and because of the deception, inevitably made decisions with no consideration of material facts are:

a. The Weinberg proceeding in 1999, and

b. The Besanko proceeding in 2007.

31. In the Weinberg proceeding, the Court had no knowledge of the decision by the Fourth Respondent’s delegate, Barbara Benson on 24 November 1998 that hardship payments were to be paid to the Applicant to 31 March 1999[10].

32. Like the matter in the Besanko proceeding, officers of the Fourth Respondent made approaches to Barbara Benson to “reconsider” her decision made on 24 November 1998.

33. Unlike the matter in the Besanko proceeding, that hardship payments continued in accordance with Barbara Benson’s decision of 24 November 1998 confirms that she refused to entertain the request to “reconsider” her decision.

34. Regardless of whether the decision-maker acquiesced to requests to “reconsider” a decision once it had been made, the legal representatives and the Respondents in the Weinberg matter, like those in the Besanko matter, gave evidence of a later purported “decision” and did not reveal the existence of the decision that had been made.

35. In the Weinberg proceeding the legal representative of Greg Farr - the immediate supervisor of the First Respondent, Robyn Orr - filed an affidavit by Greg Farr claiming that he decided on 5 August 1999 about hardship payments to the Applicant from 3 December 1998 to 17 March 1999. The payments to 31 March 1999 remained unexplained in the judgment of the Court. The Court was prevented from making any other decision because, like the Applicant, it had no knowledge of the valid decision.

36. In the Besanko proceeding, like the Weinberg proceeding, the judgment of the Court could not include any consideration of a decision made on 29 July 1997 for one reason, and one reason alone. That is because, like the Applicant, it had no knowledge of that decision.

37. Two proceedings, one the ACT Supreme Court and one in the Federal Court of Australia where both were deceived, and because of the deception, made decisions with no consideration of material facts are:

a. The Burns proceeding in the ACT Supreme Court in 2013, and

b. The Wigney proceeding in the Federal Court of Australia in 2022.

38. These two proceedings have some features in common, but with important differences. They are unlike the first two above - the Weinberg and Besanko proceedings.

39. In the Burns proceeding the legal representative of the Respondents filed an affidavit by John Higham with a false and misleading statement that was plainly shown to be false by evidence in the legal representative’s possession at the time he filed it:

a. John Higham, and John Whyte, were not surprised when the legal advice they received orally at a meeting on 14 July 1997 was written down and received in writing on 29 July 1997, and

b. The evidence before Burns J at the time of the hearing of the falsity of the evidence and was available to him for the 12 months from the end of the hearing in 2013 until he delivered his judgment in 2014.

c. The judgment by Burns J failed to judicially consider the evidence before him and referred to the evidence of John Higham being “surprised” as a reason for the decision he made.

40. In the Wigney proceeding, the Applicant was not legally represented, and the Respondents rejected all requests for a delay so that his legal representative could advocate on his behalf.

41. Some exchanges at the hearing before Wigney J in September 2022 on the need for evidence to support the Applicant’s Statement of Claim, only now in light of the decision by Mortimer CJ are difficult to reconcile with both the principles Mortimer CJ set out for considering applications for summary judgment, and with the perfunctory treatment of two issues by Wigney J in his judgment that were raised in the Applicant’s Statement of Claim. Questions of fact are matters to be addressed at trial after a hearing of evidence. An application for summary judgment is not an occasion to consider evidence.

42. The relevance of evidence in any application for summary judgment was a concern created by the Respondents’ legal representatives filing over 600 pages of affidavit evidence in the Wigney proceeding.

43. The Applicant expressed a reservation about this at the hearing on 20 September 2022, at transcript page [P-20], lines 13-29:

MR DUNSTAN: I mention in my submissions that I had asked the Tax Commissioner and their solicitors – as soon as the Tax Commissioner filed an appearance, I wrote a – I sent a copy of the information, the request, to Ashurst, saying, here’s my analysis of what I think. There’s evidence that the final report was written in 2007 for the purpose of deceiving Besanko J and had not been written in 1997 when John Higham, the second respondent, claimed to have written it. And I said – in those two letters I said this is my reasoning for why I think that document is a forgery or a fraudulent letter used in evidence improperly and do you think there’s anything wrong with my reasoning and do you have any evidence to show that the letter did exist in 1997. And I – my letter was – my letters were inquisitive, not – I wasn’t accusing. I was saying had I got this wrong and I never got an answer.

And then when the respondent said they did not want to file – they didn’t want to be compelled to file evidence, they then filed 600 pages of evidence which they weren’t compelled to do. And I found out that in there they didn’t have any evidence to show the document was created in 1997, but they had supplied some of the evidence that shows that it was not created in 1997…

44. Continuing at transcript page [P-21], lines 2-8

MR DUNSTAN: …[The] evidence from the second respondent that he had given previously was that he had completed his final report, gave that and the signed charging documents to Personnel to file and distribute. The problem is that, when you assemble the file in numerical sequence, there is no gap for a final report to have existed. On this evidence, it never existed. It was never stored by the Personnel area and never placed on an official file.

45. References to evidence were again introduced at the hearing on 20 September 2022 by both Wigney J. This followed a question by the Applicant to his Honour, querying the need for him to have filed evidence on the Respondents’ summary dismissal application where no defence to deny allegations had been filed, at transcript page [P-72], lines 39‑43:

MR DUNSTAN: …[The] Federal Court Rules say that in the absence of a denial of an allegation in a statement of claim, it is assumed to be true. So the idea that the court would need to waste its time looking at evidence where something has not yet been denied is simply not true.

HIS HONOUR: Well, Mr Higham’s evidence was that the report existed ...

46. The Applicant referred to one occasion in his letter to Ashurst Australia dated 12 October 2022, where Ms Firkin for the Respondents expressed complete surprise at evidence from one of the Fourth Respondents’ official files at the hearing on 21 September 2022 – even though this evidence was clearly and fully explained in the Applicant’s letter to Ashurst Australia on 31 January 2022. [11]

47. This letter the Applicant wrote in January 2022 explained that the Fourth Respondent’s official file with documents of its disciplinary process involving the Applicant did not contain a “final report” the Second Respondent claimed he wrote in October 1997.

48. In his judgment, Wigney J did not mention evidence. To do so would reveal he embarked at the hearing on an incorrect consideration of the Respondents’ application for summary judgment.

49. Wigney J also did not judicially consider any of the Applicant’s written and oral submissions on the allegations of fraud by the Second Respondent, John Higham, and on the failures of the Respondents’ legal representatives behind their filing fraudulent evidence for their clients. Where a judicial consideration should have been provided, the judgment contains only an emotive tirade criticising the Applicant. For example, at [129]‑[130]:

“…the Commonwealth’s legal representatives failed to inform the court that Mr Growder, Ms Orr and Mr Higham lied and suppressed material evidence in both the proceeding before Besanko J and the proceeding before Burns J, and falsely claimed legal professional privilege in respect of certain documents.

I have read and given detailed consideration to the voluminous affidavit and documentary evidence and written submissions relied on by Mr Dunstan in respect of those serious allegations. I have also given detailed consideration to the respondents’ written submissions which address the allegations at some length. For reasons that will become apparent, I do not propose to address or analyse in detail the allegations and the prolix and labyrinthine arguments that Mr Dunstan advanced in respect of them. [emphasis added]”

50. The Applicant’s arguments on the alleged conduct of the Respondents’ legal representative Robert Cutler of Clayton Utz Lawyers were neither prolix nor labyrinthine.

a. Those allegations have not been denied, and

b. In his decision Wigney J has failed to provide any judicial consideration of this crucial element of the Applicant’s case and fails to consider the submissions on the allegations in the Statement of Claim.

51. Robertson J in his paper “Affidavit Evidence” on 26 February 2014 in the College of Law 2014 Judges’ Series wrote:

“A practitioner must not permit the swearing of an affidavit which he or she is aware is false.”

52. The Applicant nevertheless did provide clear unambiguous evidence about the conduct of the Respondents’ legal representatives in previous proceedings.

53. At the hearing before Wigney J the Applicant described and made clear submissions that the evidence available to Robert Cutler of Clayton Utz Lawyers showed John Higham’s affidavits contained statements that his legal representative would suspect of being false or would know they were unequivocally false.

54. Two examples are sufficient:

a. John Higham annexed an undated document to his 2007 affidavit in the Besanko proceeding that was not among the documents the Australian Taxation Office held in its files from 1997 when the undated document was purported to have been created. John Higham’s affidavit contained a statement that he created the undated “final report” in 1997. Robert Cutler had the documents from the Australian Taxation Office official files that were created in 1997 and knew the undated “final report” was not among them. That “final report” was also not in the bundle of documents John Higham’s legal representatives prepared in 1999 following an order by Finn J in the proceeding that was eventually heard before Besanko J in 2007.

b. John Higham stated in his 2011 affidavit in the Burns proceeding that he was surprised with the written legal advice he received on 31 July 1997 from Tony Burslem, an Australian Government Solicitor. This was relied upon in the Burns judgment in the ACT Supreme Court. [12] Robert Cutler had a copy of that written legal advice and contemporaneous notes by John Molyneux, both of which confirmed the written legal advice did not surprise John Higham. John Higham expected that the oral advice he received two weeks earlier at a meeting with Tony Burslem was to be put in writing and forwarded to him so that he could act upon it as he intended after the face-to-face meeting.

55. Wigney J approach of using derogatory language to describe the Applicant’s case while avoiding judicially considering the arguments before him is repeated in the judgment at [128]:

“Mr Dunstan’s claim that the Commonwealth breached the duty of care it owed him, or is in some way vicariously liable for the negligent acts of the individual respondents and the legal advisers, is based on a series of complex, convoluted and arcane allegations [emphasis added] concerning allegedly false or fraudulent evidence in the proceedings before Besanko J and Burns J, the allegedly deliberate concealment of documents or parts of documents that supposedly should have been discovered in that litigation, and an alleged conspiracy between the individual respondents to terminate Mr Dunstan’s employment [emphasis added].”

56. The Statement of Claim did not contain any allegation of a conspiracy between the individual respondents to terminate Mr Dunstan’s employment.

57. Wigney J is plainly “cutting and pasting” the Respondents’’ submissions uncritically into the judgment with no consideration of the case the Applicant presented.

58. There was nothing complex, convoluted or arcane about the allegation set out in plain language in the Statement of Claim. Upon believing that the Second Respondent had decided on 29 July 1997 to not charge the Applicant with misconduct, the First Respondent was required by the Public Service Act 1922 (Cth) to recall the Applicant to duty. It is that simple.

59. That Wigney J was “cutting and pasting” submissions from the Respondents’ counsels explains the otherwise inexplicable judgment at [143]:

“Second, the critical document would appear to be Mr Higham’s minute dated 29 July 1997. That document was included in the respondents’ list of discovery documents in the proceeding before Besanko J. It was, however, the subject of a claim of legal professional privilege. As will be seen, that privilege claim was dealt with at length by the ACT Court of Appeal in the appeal from the judgment from Burns J: Dunstan v Higham CA at [138]-[159].”

60. The Applicant’s SOC before Wigney J did not contain any allegation about the privilege claim made on 27 March 2007 over this minute dated 29 July 1997. The SOC plainly alleges that the privilege was waived three months later, on 2 July 2007, by the Respondents’ counsel tendering the “McInnis advice” in evidence in the Besanko proceeding.

61. The Applicant’s statement on this was pellucid in his written submissions of 29 August 2022 at [116]. This stated that the Respondents’ submissions failed to address the allegation at [60] in the SOC.

62. Wigney J chose to construct his judgment by blindly copying and pasting from the misleading and deceptive submissions of the Respondents’ legal representatives. Whatever the Applicant submitted was neither heard nor seen.

63. Further in that judgment, where judicial consideration of the issue of Anshun estoppel versus setting aside a judgment procured by fraud should be found, there is only another emotive tirade critical of the Applicant’s case.

64. Importantly, there is no judicial consideration of the material about the legal representative for the Respondents filing false and misleading evidence – where the Respondents have not denied that that is exactly what they did – and there is no comment about the Court that failed to notice the deception and instead relied upon the false evidence in giving judgment for the Respondents.

65. Incongruously, in the judgment of Wigney J, it is only the Applicant who bears the entire onus for detecting the perpetrators’ fraud.

The Respondents’ submissions

66. The legal representatives for the Respondents foreshadowed at the first case management hearing that they did not expect to file a defence to a Statement of Claim that had not been written.

67. Following through with this assumption, the Respondents did not file a defence.

68. By choosing to not deny the allegations in the Statement of Claim, the Respondents were limited in what was possible to argue about the allegations in the Statement of Claim. The only logical position remaining was what appears in their submissions – which is to deny the presence of the allegations clearly set out in the Statement of Claim.

69. Though slightly amusing, their submission on the allegations does not deserve any further time or discussion.

70. The remedy the Applicant seeks includes restitution for all costs incurred in every Court in which parts of this Federal matter have occurred. My affidavit in reply shows that the failure of the Respondents to give the Higham Minute of 29 July 1997 to Justice Besanko in 2007 inevitably resulted in all the litigation that followed.

71. A key allegation about culpability is the allegation that privilege over that document was waived at that hearing before Besanko J in July 2007 – and the Respondents failed to disclose it to the Court after privilege was waived.

72. This was an allegation in the Statement of Claim before Wigney J:

a. The Respondents’ legal representatives failed to address that allegation and instead deceived Wigney J into believing that the allegation was a about the original claim of privilege made in March 2007.

b. Wigney J completely ignored the Applicant’s submissions, and the Statement of Claim, for some personal antipathy he plainly held towards the Applicant,

c. The failure by Wigney J to consider the allegation in the Statement of Claim is of no assistance to the Respondents’ legal representatives. The deception in which they engaged stands in condemnation of their conduct.

E. CONCLUSIONS

73. The Respondents’ application should be dismissed.

15 May 2025

Colin Dunstan

Applicant

Schedule

No. ACD57 of 2024

Federal Court of Australia

District Registry: Australian Capital Territory

Division: General

Respondents

Second Respondent: JOHN HIGHAM

Third Respondent: JOHN GROWDER

Fourth Respondent: COMMONWEALTH OF AUSTRALIA

Date: 15 May 2025

[1] Affidavit of Colin Dunstan dated 14 May 2025, at paragraph 6, and at pages 31-59.

[2] Affidavit of Colin Dunstan dated 14 May 2025, at paragraph 6, and at pages 60.

[3] Affidavit of Colin Dunstan dated 14 May 2025, at [13]-[14].

[4] Affidavit of Colin Dunstan dated 14 May 2025, at [71] and pages 173-175.

[5] Affidavit of Colin Dunstan dated 14 May 2025, at [62]-[71] and Annexure CGD11.

[6] Affidavit of Colin Dunstan dated 14 May 2025, at [19(d)] and pages 77 – 84.

[7] Affidavit of Colin Dunstan dated 14 May 2025, at [108] and annexure CGD12.

[8] Affidavit of Colin Dunstan of 14 May 2025, at [108(e)], and pages 300-309 of annexure [CGD12].

[9] Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766

[10] Affidavit of Colin Dunstan dated 14 May 2025 at [20]-[31]

[11] Affidavit of Colin Dunstan, 14 May 2025 at [116] and annexure CGD14.

[12] 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.”

Legal Notes

Applicant's Submission in Reply - Dunstan v Orr and others - ACD57 of 2024

A. APPLICANT’S MATERIAL and A PRELIMINARY MATTER

B. INTRODUCTION

C. LEGAL PRINCIPLES

D. SUBMISSIONS

E. CONCLUSIONS

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