The Tax Commissioner does not like to tell Courts the whole truth
The first hearing - application in October 1997, heard in July 2007
The Applicant was suspended from duty on 4 June 1997. This was:
- The last day the Applicant ever worked, and
- Two weeks after the Applicant had discovered, reported to the Director of Computer Security, and began work on removing a "backdoor" that circumvented all security on access to the Australian Taxation Office's production databases.
The Applicant's report dated 21 May 1997 describes briefly (the highlighted section on page 5) the defective security parameters that he found had been installed in the Australian Taxation Office's production database system. A copy the Applicant's 21 May 1997 report is available on Google Drive.
The Applicant commenced the proceeding in the Federal Court of Australia in October 1997, at first on 17 October 1997 because it seemed the Tax Office was taking an extraordinary long time to make any decision having suspended him from duty on 4 June 1997.
At the same time the Applicant was filing this application and affidavit, the Tax Office had sent him decisions dated 13 October 1997 that were delivered on 20 October 1997, to charge him with misconduct, and to cancel his salary.
The first two affidavits the applicant filed in the Federal Court, and the Statement of Claim amended in 1998 for this proceedings that are in PDFs on Google Drive were:
Though it was not revealed until many years later, it was evident that John Higham, delegate of the Australian Taxation Commissioner, Michael Carmody made a decision on 29 July 1997 requiring another of Michael Carmody's delegates, Robin Orr, to recall the Applicant immediately to duty.
This did not happen. Instead, two separate actions were commenced to ensure the Applicant would never work again:
- The Australian Taxation Officer responsible for Information Technology Services, Geoff Seymour, wrote a document to declare the Applicant a "surplus officer" and drafted a letter for his second-in-charge, John Growder, to hand to the Applicant at a meeting in October 1997. Geoff Seymour then resigned.
- Legal advice "shopping" obtained a carefully constructed memorandum from an external barrister, Murray McInness, to replace the legal advice of the Australian Government Solicitor, Tony Burslem. It was Tony Burslem's advice that had confirmed for John Higham that he should make the decision on 29 July 1997 that the Applicant was to be recalled to duty.
The affidavit evidence of the respondents in this proceeding:
- John Higham,
- John Growder, and
- Robyn Orr
have a common feature. In their evidence to the Federal Court of Australia in 2007, there is no suggestion that John Higham did anything at all from early July 1997 to October 1997.
It is not the content of their evidence that is of most interest. It was what they omitted and concealed.
Their affidavit evidence is available on Google Drive in PDF files:
Their was another affidavit filed for the respondents. It was an affidavit by an IBM consultant that John Growder engaged in June 1997 to examine the work the Applicant had been performing over the previous 6 months.
Difficulties for the Respondents over their evidence surfaced early in 2007.
Sadly, these difficulties did not prove fatal to the deception that was perpetrated on the Federal Court by the Tax Commissioner's senior officers and his legal representatives.
The Tax Commissioner and the respondents were represented by Robert Cutler of Clayton Utz Lawyers.
The Applicant wrote to Robert Cutler requesting that he provide discovery of documents held by the Australian Commissioner of Taxation, including one specific document that Geoff Seymour mentioned that he had written to Second Tax Commissioner Richard Highfield in 1997.
Two separate problems emerged:
- Geoff Seymour's minute to Second Tax Commissioner Richard Highfield was dated 30 July 1997 and described Geoff Seymour's consternation that the Applicant was to be recalled to duty, and he wanted advice on how to stop this happening. The problem with this is that none of the Respondents' affidavits mentioned any possibility of the Applicant being recalled to duty at the end of July 1997. This was a newly revealed "mystery" about what had taken place in 1997.
See Geoff Seymour's minute to Richard Highfield dated 30 July 1997 (tags on pages 3 and 4 show the redacted sentences).
The following text was redacted (hidden from the Federal Court)
On page 3:
Mr Higham sought legal advice, on the charges he proposed to lay, from the Australian Government Solicitor (AGS) because of their involvement in the other actions involving Mr Dunstan. The AGS advice is not supportive on the basis that we are unable to prove that Mr Dunstan -
- had no valid reason associated with his duties to gain access (to mainframe systems), and
- was attempting to breach security.
Therefore, AGS advise that it is not legally open to us to conclude that Mr Dunstan may have failed to fulfil his duty as an officer. I do not accept (1) above but do accept (2). Consequently I agree that charges cannot be pursued.
On page 4:
In view of the advice from AGS he must return to work.
And:
We continue to be advised that we have insufficient grounds to terminate his employment.
- Documents collected by the Australian Taxation Commissioner's personnel area and sent to Robert Cutler revealed that his clients' affidavits that he filed in the Federal Court of Australia were inconsistent with the facts.
Robert Cutler's response to the second of these difficulties included:
- Not replying to the Applicant's request for the documents until one month AFTER the date set by the Court for the Applicant to file evidence in reply to the Respondents' affidavits, and
- Writing to the Applicant that he had "some documents", falsely asserting "they are all privileged" and thus concealing all of the documents from the Applicant.
The Applicant made a number of attempts to learn something about the documents the Tax Commissioner had given to Robert Cutler, including:
- Writing to Robert Cutler with a request that the Tax Commissioner waive privilege over the documents. He replied that the Tax Commissioner would NOT waive privilege.
- Applying to the Court for an order that the "privileged documents" be described in a list to be supplied to the Applicant.
The application to the Court revealed a good deal more than just a list of descriptions of documents that Robert Cutler had asserted were all privileged.
In response to the Court order that the list be provided, Robert Cutler's answer revealed that his assertion that they were all privileged was false.
Forty eight documents were provided. Descriptions of a further dozen or so were described, together with a partially redacted version of Geoff Seymour's minute to Richard Highfield dated 30 July 1997.
See the list of documents and the bundle of documents provided by Robert Cutler in a pdf file on Google Drive.
Revelations of the Tax Commissioner's Deceit in 2009
The Applicant was successful in a Federal Court of Australia application filed in 1996, and heard in 2006, to review a decision by Comcare and the Administrative Appeal Tribunal to reject an application for compensation due to harassment at work causing chronic Major Depressive Disorder.
From this, the Applicant's compensation case was returned to the Administrative Appeals Tribunal to be heard again. The Administrative Appeals Tribunal issued a summons to the Commissioner of Taxation for all documents related to the Applicant's employment.
The result was surprising. Among the documents supplied on 25 May 2009 was a minute written by John Higham dated 29 July 1997 that says the applicant must be recalled to duty. Another surprising document was one written by Robyn Orr dated 15 August 1997. Robyn Orr was the delegate responsible for recalling the Applicant to duty following the decision of John Higham. Instead of following the legislation, in her 15 August 1997 memorandum, Robyn Orr writes of getting new legal opinions and trying to persuade John Higham to "reconsider" his decision. AN unredacted copy of Geoff Seymour's memorandum dated 30 July 1997 on his consternation of the Applicant having to return to work was also supplied by the Tax Commissioner.
These and other documents showed the affidavit evidence and the oral evidence given by the Tax Commissioner's senior office in the Federal Court in 2007 was seriously flawed.
The Applicant commence a new proceeding in the ACT Supreme Court in 2010 to address the new information revealed in these documents. The Tax Commissioner filed an application to strike out this proceeding. This application was rejected by the ACT Supreme Court, and the application then proceeded through steps of discovery and filing affidavit evidence.
A long delay arose with the ACT Supreme Court not setting the application down for hearing until September 2013. Near the end of the 10-day hearing, a witness John Molyneux, for the Tax Commissioner revealed that:
- he had kept diaries throughout 1997 of discussions and meetings on the process to terminate the Applicant's employment,
- he had given copies of those diaries to the Australian Tax Commissioner in 1998.
These diaries were concealed by the Tax Commissioner during the discovery process leading to the hearing of the application in September 2013.
The parts of the heavily redacted notes ("the Molyneux Notes") revealed that the Tax Commissioner's senior officers had deceived both Justice Besanko in the hearing in the Federal Court in 2007 and had also deceived Justice Burns in the hearing in the ACT Supreme Court in 2013. A key witness, the Tax Commissioner's Personnel Manager, John Whyte had been kept out of the proceeding entirely. He had played a pivotal role in guiding John Higham and also discussing options with John Molyneux, the keeper of the diaries on the process.
The Applicant's affidavit filed in the ACT Supreme Court covers the harassing conduct of a colleague who had become obsessed with him, and the string of acts of victimisation by the Tax Commissioner's officers in determined effort to avoid any investigation and responsibility for the harassment of the Applicant.
This is a copy of that Affidavit of the Applicant dated 10 August 2011.
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