When the Tax Commissioner tells lies to defend legal action based on the Tax Commissioner telling lies
A pattern is emerging...
A surprise in an affidavit and submissions filed in the Federal Court of Australia by the Australian Taxation Commissioner's legal representatives was:
- An unprofessional false allegation by his solicitor against the applicant in the proceeding, and
- The response to the applicant's criticism of this unprofessional false allegation was not the expected retraction and apology, but instead, a further false allegation by his junior and senior counsels in submissions falsely asserting the false allegation was true.
BREAKING
In an unexpected twist, just a few days after filing an Interlocutory Application and submissions in response to the Australian Taxation Commissioner's counsel making baseless allegations against the Applicant, the Tax Commissioner's solicitor has advised that those counsel HAVE RETURNED THEIR BRIEFS and will no longer appear for the Tax Commissioner.
An exchange of emails between the Applicant and the Tax Commissioner's solicitor on this bizarre development is available here: "The Commissioner of Taxation's "absolute immunity" is fading".
The Applicant's submissions on his interlocutory application to have the Federal Court of Australia address this issue before hearing the Tax Commissioner's interlocutory application to strike out the original proceeding are included below. The original proceeding is about the Tax Commissioner's legal representatives making deceptive and misleading submissions in a previous proceeding:
The applicant's interlocutory application and affidavit filed in support of the application are available in pdf files on Google Drive:
APPLICANT’S
OUTLINE OF SUBMISSIONS
On the
Applicant’s Interlocutory Application on Preliminary Issues
No. ACD57 of 2024
Federal
Court of Australia
District
Registry: Australian Capital Territory
Division:
General
COLIN
GEORGE DUNSTAN
Applicant
ROBYN
ORR and others named in the schedule
Respondents
Contents
A.
LEGAL
PRINCIPLES
1. The Legal Profession (Barristers) Rules
2021 made under the Legal Profession Act 2006, s579(1) (Rules for
barristers) in the extract below:
|
PREAMBLE These
Rules are made in the belief that: 1. The
administration of justice is best served by reserving the practice of law to
officers of the Supreme Court who owe their paramount duty to the
administration of justice. 2. As
legal practitioners, barristers must maintain high standards of professional
conduct. 3. The
role of barristers as specialist advocates in the administration of justice
requires them to act honestly, fairly, skilfully, diligently and fearlessly. 4. Barristers
owe duties to the courts, to other bodies and persons before whom they
appear, to their clients, and to their barrister and solicitor colleagues. … INTRODUCTION
& INTERPRETATION 8. These
Rules are made by the Bar Council.
They may be cited as the ACT Barristers’ Rules. 9. These
Rules are not, and should not be read as if they were, a complete or detailed
code of conduct for barristers.
Other standards for, requirements of and sanctions on the conduct of
barristers are found in the inherent disciplinary jurisdiction of the Supreme
Court and in the general law (including the law relating to contempt of
court). 10. These
Rules should be read and applied so as most effectively to attain the objects
and uphold the values expressed in their Preamble. 11. General
provisions of these Rules should not be read or applied in a limited way by
reason of any particular or illustrative provisions. 12. Headings
in these Rules shall be read as part of these Rules, but
shall not be used so as to read or apply any of the
Rules in a more limited way than would have been so if the headings were not
part of the Rules. 13. These
Rules are not to be read by reference to any former rules made by the Bar
Association, whether or not the substance of any
such rule is reflected in any of these Rules. … ADVOCACY
RULES … Delinquent or guilty
clients 32. A
barrister whose client informs the barrister, during a hearing or after
judgment or decision is reserved and while it remains pending, that the
client has lied to the court or procured another person to lie to the court
or has falsified or procured another person to falsify in any way a document
which has been tendered: (a) must
refuse to take any further part in the case unless the client authorises the
barrister to inform the court of the lie or falsification; (b) must
promptly inform the court of the lie or falsification upon the client
authorising the barrister to do so; but (c) must
not otherwise inform the court of the lie or falsification. … Briefs
which must be refused 87. A
barrister must refuse to accept or
retain a brief or instructions to appear before a court if: … (e) the
barrister has reasonable grounds to believe that the barrister's own personal
or professional conduct may be attacked in the case; |
2. The Legal Profession (Solicitors)
Conduct Rules 2015 made under the Legal Profession Act 2006,
s 580 (Rules for solicitors) in the extract below:
|
… 3 PARAMOUNT
DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE 3.1 A
solicitor’s duty to the court and the administration of justice is
paramount and prevails to the extent of inconsistency with any other duty. … 18 FORMALITY BEFORE THE COURT 18.1 A solicitor must not,
in the presence of any of the parties or solicitors, deal with a court on
terms of informal personal familiarity which may reasonably give the
appearance that the solicitor has special favour with the court. 19 FRANKNESS
IN COURT 19.1 A solicitor must not
deceive or knowingly or recklessly mislead the court. 19.2 A solicitor must take
all necessary steps to correct any misleading statement made by the solicitor
to a court as soon as possible after the solicitor becomes aware that the
statement was misleading. … 20 DELINQUENT
OR GUILTY CLIENTS 20.1 A solicitor who, as a result of information provided by the client or a
witness called on behalf of the client, learns during a hearing or after
judgment or the decision is reserved and while it remains pending, that the
client or a witness called on behalf of the client: 20.1.1 has lied in a material particular to
the court or has procured another person to lie to the court;
20.1.2 has falsified or procured another
person to falsify in any way a document which has been tendered; or 20.1.3 has suppressed or procured another
person to suppress material evidence upon a topic where there was a positive
duty to make disclosure to the court; must
– 20.1.4 advise the client that the court should
be informed of the lie, falsification or suppression and request authority so
to inform the court; and 20.1.5 refuse to take any further part in the
case unless the client authorises the solicitor to inform the court of the
lie, falsification or suppression and must promptly inform the court of the
lie, falsification or suppression upon the client authorising the solicitor
to do so but otherwise may not inform the court of the lie, falsification or
suppression. … 21 RESPONSIBLE
USE OF COURT PROCESS AND PRIVILEGE … 21.2 A solicitor must take
care to ensure that decisions by the solicitor to make allegations or
suggestions under privilege against any person: 21.2.1 are reasonably justified by the
material then available to the solicitor; 21.2.2 are appropriate for the robust
advancement of the client’s case on its merits; and 21.2.3 are not made principally in order to harass or embarrass a person. 21.3 A solicitor must not
allege any matter of fact in: 21.3.1 any court document settled by the solicitor; 21.3.2 any submission during any hearing; 21.3.3 the course of an opening address; or 21.3.4 the course of a closing address or
submission on the evidence, unless the solicitor
believes on reasonable grounds that the factual material already available
provides a proper basis to do so. 21.4 A solicitor must not
allege any matter of fact amounting to criminality, fraud or other serious
misconduct against any person unless the solicitor believes on reasonable
grounds that: 21.4.1 available material by which the
allegation could be supported provides a proper basis for it; and 21.4.2 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. |
B.
PRELIMINARY
ISSUES
3.
The
solicitor for the Respondents, Ms McKean filed an affidavit in this proceeding
that contained an allegation against the Applicant that is in breach of rules
21.2, 21.3 and 21.4 of the Legal Profession (Solicitors) Conduct Rules 2015
made under the Legal Profession Act 2006, s 580 (Rules for
solicitors).
4.
When
informed of this in the Applicant’s affidavit and submissions in reply,
rather than withdrawing and apologising for the breach, the Counsels for the
Respondents filed an outline of submissions on 12 June 2025 which falsely
asserts at [22] the truth of the allegation:
“AA1
[51] and [53]-[55] should be read together. They appear to reduce to the
proposition that Ms. McKean has deposed to incidents of misconduct having been
committed by Mr. Dunstan. She has. In doing so she has done no more than recite
conclusions of fact recorded by Besanko J (Dunstan v.
Orr [2008] FCA 31; 217 FCR 559 and MCM-1 p. 9). Mr. Dunstan failed to
prosecute his appeal from Besanko J’s judgment, as the public record of
the appeal proceeding, ACD 12 of 2008, shows. It was unremarkable for Ms. McKean
to give the evidence she did …”
5.
The
reference to “conclusions of fact recorded by Besanko J” is not a
reference to any identifiable conclusion of fact that Ms McKean is asserted to
have recited.
6.
The
plainly false and serious allegation Ms McKean has made against the applicant
does not exist in MCM-1 p.9 which is page 1 of the judgment Dunstan v Orr
[2008] FCA 31.
7.
The
relevant conclusion of fact is in that judgment at [56], the dot-point at the
top of page 21 of the decision:
·
Mr
Higham was unable to determine the motives behind the alleged attempted
breaches. Mr Higham did not pursue this aspect as it was not, in his opinion,
essential to the notion that misconduct may have occurred.
8.
This
conclusion of fact recorded by Besanko J is at MCM-1 p.9 of the annexure to Ms
McKean’s affidavit. Plainly her allegation does NOT recite any conclusion
of fact. It is a serious, false allegation against the applicant.
9.
The
Counsels’ reply adds another serious, false allegation against the
applicant:
“Ms.
McKean has deposed to [sic, falsely alleged] incidents of misconduct having
been committed [sic, having not been committed] by Mr. Dunstan.”
10. There are NO “incidents of
misconduct having been committed by Mr. Dunstan”.
11. It has never been asserted and in any
other proceeding that the Applicant committed any such misconduct.
12. The Counsels, Mr Parkinson and Mr Smyth,
have lied about what is in the judgment Dunstan v Orr [2008] FCA 31 to
cover up the lie told by Ms McKean in the affidavit she filed in this
proceeding.
13. In doing so, Mr Parkinson and Mr Smyth breached
rule 2 of the Legal Profession (Barristers) Rules 2021 made under the Legal
Profession Act 2006, s579(1) (Rules for barristers). This breach is further addressed by
rule 87 (e):
87. A
barrister must refuse to accept or retain a brief or instructions to appear
before a court if:
…
(e) the
barrister has reasonable grounds to believe that the barrister's own personal
or professional conduct may be attacked in the case;
14. Rule 18.1 of the Legal Profession
(Solicitors) Conduct Rules 2015 requires:
“A
solicitor must not…deal with a court on terms of informal personal
familiarity which may reasonably give the appearance that the solicitor has
special favour with the court.”
15. Ms McKean was able to electronically
lodge an affidavit in this proceeding with fewer requirements than were imposed
on the Applicant.
16. The Applicant raised this in writing to
the Court and the Ms McKean, and consequently a different process was offered
to the Applicant.
17. In reply to a query from Ms McKean
asking the Applicant if this resolved his concerns of unequal treatment, the
Applicant asked Ms McKean about the process made available to her for lodging
affidavits in the Federal Court.
18. Ms McKean, to date, has not answered.
19. Rule 32 of the Legal Profession
(Barristers) Rules 2021 and rule 20 of the Legal Profession (Solicitors)
Conduct Rules 2015 address in similar terms the issue of delinquent or guilty
clients.
20. Correspondence exchanged between the
Applicant and the legal representatives of the respondents following the
hearing in September 2022 canvas raise this issue. There are reasonable grounds
to believe that the Respondents did provide relevant admissions of wrongdoing
in unredacted copies of the “Molyneux Notes” immediately prior to
the hearing.
21. The Applicant is blocked for the time
being from agitating this issue with the legal representatives rejecting the
Applicant’s request to re-assess all claims of privilege on the basis
that the claims have been superseded by communications that amount to waiver.
22. The Court may inspect documents to
assess whether claims of privilege should be upheld.
23. There is no reason the Court should not
also inspect documents subject to claims of privilege to assess whether the
communications in those documents from clients to their legal representatives
are admissions relevant to professional standards on delinquent clients.
C.
CONCLUSION
24. Based on the legal principles and reasons
set out in these submissions and the evidence in support:
a.
the orders requested in the
Applicant’s Interlocutory Application of 16 June 2025 should be made, and
b.
Any
further orders the Court considers appropriate in the circumstances
16 June 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
Comments
Post a Comment