Form 17
Amended Statement of claim
No. ACD57 of 2024
Federal Court of Australia
District Registry: Australian Capital Territory
Division: General
COLIN GEORGE DUNSTAN
Applicant
ROBYN ORR and others
Respondents
Pursuant to Thawley J’s order 1 on 25 October 2024:
On or before 4:00pm on 29 November 2024, the applicant is to file and serve a Statement of Claim compliant with Part 16.1 of the Federal Court Rules 2011 (Cth), identifying the issues of fact and / or law he wishes to raise in this proceeding:
The context of this proceeding – preliminary discussion
The immediate precursor to this proceeding was the hearing before Wigney J in September 2022 of the applicant’s case pleaded in an Amended Statement of Claim lodged 20 September 2022 and filed on 21 September 2022.
That Amended Statement of Claim contains background information and pleadings that allege fraud by the Respondents to procure a fraudulent decision Dunstan v Orr [2008] FCA 31 (25 January 2008):
The Respondents did not deny the alleged fraud, and
It is alleged in this proceeding that the Respondents relied upon fraudulent evidence and deceptive submissions in the proceeding before Wigney J:
To deceive the Court,
With the intention that the Court would rely upon that evidence and deception to dismiss the Applicant’s proceeding, and
With the result that the Court was deceived, and because it was deceived, made the decision Dunstan v Orr (No 2) [2023] FCA 1536 (7 December 2023) dismissing the Applicant’s proceeding.
A copy of the Amended Statement of Claim lodged on 20 September 2022 referred to above is attached.
Background about the facts:
The Applicant was diagnosed with Major Depressive Disorder caused by harassment by an obsessive work colleague.
The Applicant made a written request for help to his employer that resulted in the Applicant being removed from his position as head of the Australian Taxation Office’s Database Administration Subsection.
The Applicant’s employer and the Australian Human Rights Commission (the AHRC) acted as though the goal of officers of both were to suppress evidence that the Applicant had been discriminated against. For instance, the following three documents, copies of which are attached, were created by officers of the AHRC (known as the Human Rights and Equal Opportunity Commission at the time) and were only disclosed to the Applicant many years after creation because he commenced proceeding ACD30 of 1997 in April 1997 – when the AHRC gave him a decision refusing to investigate the Applicant’s complaint lodged in September 1993:
20 December 1993 – Internal legal advice: “the ...material supplied ...would certainly seem to raise a prima facie case of sexual harassment...”
16 August 1995 – President Ron Wilson’s advice: “I think it would be best if I … returned the file for the sex harassment complaint to be investigated.”
28 June 1996 – Delegate of the Sex Discrimination Commissioner: “This complaint is not amenable to conciliation. Consequently, I am referring it for inquiry by the Commission.”
About the law:
The Applicant has become aware of judgments canvassing fraud since the hearing before Wigney J in 2022. The legal significance of what is referred to as “new evidence”, “fresh evidence” and “fresh facts” in cases involving fraud might equally be called “fresh knowledge”.
The issue is whether a party did not raise fraud in an earlier proceeding for a tactical reason.
The possibility of knowledge without evidence of knowledge is no defence.
It is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in.
In Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766 at [60] and [61]:
60. The question whether evidence “could reasonably have been deployed” is self-evidently different from the question whether it “could reasonably have been discovered”. A person cannot take a deliberate decision not to rely on evidence of fraud, unless he is not only aware of that evidence, but knows that he can rely on it to plead fraud in answer to the case brought by his opponent. 61. It is clear from their judgments that both Lord Kerr and Lord Sumption used the expression “new evidence” or “fresh evidence” to denote evidence that was not deployed in the action which led to the imputed judgment, not just evidence that had only come to light since the judgment. |
The Respondents in the Wigney proceeding did not challenge the Applicant’s claim that he had no reason to suspect the alleged fraud at any time before the ACT Court of Appeal decision Dunstan v Higham (No 2) [2016] ACTCA 28 (20 July 2016). This suspicion first arose because the decision included a statement that was plainly contrary to what the Court understood about the fraudulent “Final Report”.
In the present proceeding an issue that has not been addressed in prior judgments arises. Namely, who is the intended victim of a deception.
In Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766 at [51]: “…the defrauder, in obtaining a judgment, has perpetrated a deception not only on their opponent and the court but on the rule of law…”
And at [58]:
58. Lord Sumption went further. ... He said: … the basis on which the law unmakes transactions, including judgments which have been procured by fraud, is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows they are. That is why it is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in… It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he “should” have raised it.” |
Alleged fraud by the Respondents during the hearing before Wigney J in September 2022 was not in issue in that proceeding:
The intention of the fraud that is alleged in this proceeding was to deceive the Court in September 2021 to obtain a judgment in favour of the Respondents. The intended victim was not the other party. The intended victim of the alleged fraud was the Court and the rule of law.
Whether the Applicant was deceived or not, and whether the unrepresented Applicant’s endeavours to prevent the Respondents’ senior counsel successfully deceiving the Court, is no defence.
In Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766 the Court held that, in a case where the alleged fraud had not been in issue in the original proceedings, even if the judgment was entered after a trial on the merits, the innocent party is not obliged to show that the fraud could not have been discovered before the original trial by reasonable diligence on his or her part. The well-known requirement in Henderson v Henderson (1843) 3 Hare 100 that “a litigant should bring forward his whole case” in the first set of proceedings does not apply in such circumstances, and there were no good policy reasons to allow a fraudulent party to rely upon the passivity or lack of due diligence of its opponent [and the Court].
The Applicant could not have known whether any of the alleged fraud that he may have responded to at the hearing, or further deception that escaped his notice, had succeeded in deceiving the Court until the Court delivered its decision in December 2023.
The cause of action requires that the alleged fraud influenced the Court’s decision.
It is no answer to a claim to set aside a judgment procured by a dishonest representation that the Respondents might have had an alternative argument on which they could have succeeded without relying on the dishonest representation.
That some or even much of the alleged fraud may ultimately have failed to deceive the intended victim is still relevant to the issue of intent. This is not a case where one accidental misstatement determined the result. There was steady stream of deceptive written and oral submissions all carefully crafted to deceive the Court.
The authorities on “fresh facts” in a proceeding alleging fraud are concerned with nothing more than that the Applicant intentionally did not bring the claim at an earlier stage for a tactical reason. It follows that evidence that the Applicant was prevented from bringing the claim in a previous proceeding is relevant to this issue. See for instance:
Dunstan v Orr [2007] FCA 873 (28 May 2007) at [2 and 6] … the application to join the Commonwealth so that a breach of contract claim could be pursued is quite a different claim from the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the AD(JR) Act) claim now before the Court. Mr Dunstan, if he is so advised, and as the respondents have indicated in their written submission, may bring such a claim independently of this action subject to the usual risks of doing so, and bearing in mind the lapse of time since that cause of action apparently accrued (if it exists). … …There is an issue about a particular privileged document (or a document said to be privileged), namely a memorandum from Mr Seymour of 30 July 1997, which the respondents say was accidentally given to Mr Dunstan. I do not propose to determine whether, via the production of that document to Mr Dunstan at this point, there has been a waiver of the privilege. There are principles to be applied in that assessment. If Mr Dunstan seeks to adduce that document in evidence I will address the issue of waiver, and hence of its admissibility at the hearing. Dunstan v Orr [2008] FCA 31 (25 January 2008) at [15] The applicant sought to put forward new and quite different claims at a very late stage of the trial. It was clear, at least from the respondents’ point of view, that it was likely that if the amendments were allowed, witnesses would have to be recalled and new witnesses may need to have been called. If the amendments were allowed, the trial would have had to be adjourned and it was likely that another pre-trial set of procedural orders would need to have been made. The applicant asserted, but did not establish to my satisfaction, that his application to amend had come forward only because of late discovery or disclosure of material by the respondents. … Dunstan v Higham [2014] ACTSC 206 (27 August 2014) at [32] At the conclusion of the hearing, in submissions in reply, the plaintiff sought to expand his case based upon concealment of a material fact to include alleged concealment by the defendants of other alleged facts … The plaintiff should not be allowed to change his position in this way. |
Background to the Amended Statement of Claim
5A At the first case management hearing on 25 October 2024 the Applicant raised concerns about the usefulness of a Statement of Claim, citing the Respondents’ “difficulties” with the formal, structured Statement of Claim filed in the proceedings before Wigney J. This concern was heightened by the Respondents’ proposed “order 2” – to be excused from the requirement to file a defence. These concerns were made in an email to the Respondent’s solicitor, and to the Court by email of 24 October 2024.
The first proposed order seems unlikely to serve any worthwhile purpose in view of the difficulties Ashurst Australia demonstrated with a Statement of Claim in the previous proceedings before Justice Wigney: 1. Misunderstanding that a Statement of Claim referenced all the evidence on which allegations were based, 2. Misunderstanding that Ashurst Australia should paraphrase and in doing so, redefine the allegations in a Statement of Claim, and 3. Misunderstanding that it was incumbent on an applicant to prove allegations in a Statement of Claim when: a. no defence was filed and hence, b. the allegations had not been denied and were deemed to be true – in accordance with Federal Court Rules. Regarding the second proposed order, I will be able to let you know my position on it if you could explain the rationale / purpose for it. 1. It seems open to creating some mischief – where Ashurst Australia may file and rely upon evidence that is known to be false. 2. Please let me know why this order is proposed. |
5B The Applicant’s concern on the Respondents’ pre-emptive request to avoid filing a defence was raised and discussed at the first case management hearing – at transcript P-8 line 45 – P-9, line 40:
MR SMYTH: …The purpose of order 1 is, simply – the route we’re going with to approach this is that we really want Mr Dunstan to put his best foot forward. HIS HONOUR: Yes MR SMYTH: And if he wants to say that there was misleading, or fraudulent, conduct on the part of those instructing me, or those who are my predecessors as counsel in this matter, and that they actuated the court, in some material way, then we say he ought to say what that was. And what principles are attracted, by the facts that he seeks to rely on. So we recognise that Mr Dunstan is a self-represented litigant, and so we’re not trying to put him to the discipline of pleading as – a sophisticated pleading – settled by senior counsel might be. There are two options that we propose. Either he can put on a proper statement of claim. Or in proposed order 1B, he can put on a proper affidavit deposing to the matters. What he can’t do, in our respectful submission, is simply to put on the broad form that he has relied on in the concise statement that’s before your Honour, simply alleging that there were false, and misleading – there were false and misleading submissions made, or evidence-tendered. HIS HONOUR: Yes. MR SMYTH: I think your Honour sees the point of that. HIS HONOUR: I do. MR SMYTH: In relation to order 2, there has been a point taken up, in correspondence, that Mr Dunstan doesn’t understand what the point of that is. Can I tell your Honour what the point is? HIS HONOUR: Yes. MR SMYTH: Under the Rules of the court, once a statement of claim is filed, the respondent has 28 days to put in a defence. We apprehend that there might be issues arising in terms of timing, and in terms of the need to get instructions. And then, in terms of the application that we anticipate we will make, which is the subject of order 3. So we simply seek a procedural accommodation that we need not put on a defence within the time provided by the Rules. HIS HONOUR: But, if you were to put on an interlocutory application, for example, for summary dismissal or strike-out - - - MR SMYTH: Yes. HIS HONOUR: - - - you would propose to do that after filing a defence, wouldn’t you? MR SMYTH: Probably not, because we don’t think the allegations are going to be of sufficient quality to require a defence. |
5C Noting that a defence was only required if a Statement of Claim was filed, the Applicant agreed to this path – at transcript P-12, lines 23-45:
MR DUNSTAN: Yes, I – since writing my response yesterday, I checked on the Federal Court Rules regarding the filing of a defence. And I would be most concerned if the respondents did not file a defence. And your suggestion that I file a statement of claim, and then we come back to look at the question of the requirement to file a defence. HIS HONOUR: Yes, I think that the – this - - - MR DUNSTAN: That would satisfy – that would satisfy my requirement. HIS HONOUR: Yes. MR DUNSTAN: And in fact, perhaps, in Rule 16.3, the requirement to file a defence arises only if there’s a statement of claim, in which case - - - HIS HONOUR: All right. MR DUNSTAN: - - - my desire for a defence where they actually admit or deny things to narrow the issues in - - - HIS HONOUR: Yes. MR DUNSTAN: So that we’re able to narrow what the issues are. |
5D The Respondents in their affidavit evidence and submissions have evidently paid attention to what Thawley J said at the first case management but have abused that information. The affidavit evidence by Ms McKean of 14 May 2025 at [27] asserted a baseless “understanding” the Applicant is not relying upon documents with which the proceeding was commenced. From the transcript on 25 October 2024, P-11, line 44 - P-12, line 12 the documents are described as follows:
HIS HONOUR: So, Mr Dunstan, I’ve read the concise statement, and the genuine steps document that you’ve kindly prepared. And if I may say, they’re both clear, and I fully understand the – what you’re conveying. But, it does seem to me that what’s lacking, at the moment, is a very precise identification of the statements that you say were false and misleading. And why they were false and misleading. And how they were, then, relied upon in the judgment. Which is, effectively, I’m saying to you the same thing I think that Kennett J has said in his judgment. MR DUNSTAN: Yes. HIS HONOUR: And so, I’m – the parties would be assisted, and the court would be assisted, by that being identified. And I think, it really does have to be identified, in some way. Now, for my part, I don’t mind if it’s done by way of a statement of claim, or by way of an affidavit. But, it does need to be – you will need to identify, with precision, what it is, precisely, that you say amounted to a misleading statement, or a false statement. … |
5E. The Applicant’s concerns set on 24 October 2024, described at 5A above, and the forecast of the Respondents’ then counsel Mr Smyth on 25 October 2025 (transcript P-11 lines 3-9 have been borne out with false allegations being made in the affidavit evidence filed by the Respondents solicitors, the counsel for the respondents returning their briefs, and most recently the solicitors Ashurst Australia being replaced:
MR SMYTH: I thought your Honour might challenge me about the dates that we proposed. And your Honour might have used some New South Wales words like “leisurely”. The reason that we’ve allowed ourselves a fair amount of time is that we don’t know what’s going to come in from Mr Dunstan. And depending on what does, there might need to be a change of solicitors. HIS HONOUR: I see. Yes. |
The Challenge - To avert a hearing of the SOC alleging fraud in the Besanko proceeding
5AA The essential elements of the Applicant’s proceeding before Wigney J are straightforward. The challenge and goal of counsel for the Respondents was to deceive and mislead Wigney J to procure summary judgment to deny the Applicant a hearing on questions of fact and law on fraud in the Besanko proceeding that are:
The respondents procured the decision in the Besanko proceeding heard in July 2007 by fraud.
The intent of the fraud was to avoid a judgment that the first respondent Robyn Orr was required under the Public Service Act 1922 to recall the Applicant to duty on or immediately after 29 July 1997.
To achieve this result, the respondents concealed from Besanko J evidence that Robyn Orr had any knowledge that enlivened her statutory obligation to recall the Applicant to duty.
Several omissions and misleading statements in the evidence given to Besanko J were either essential or helpful to achieve the goal:
Robyn Orr omitted evidence of her role after 4 June 1997 when she suspended the Applicant from duty, and gave oral evidence that she was not involved after that date,
John Growder omitted evidence that he had any role after 18 June 1997 and denied receiving a minute that John Higham addressed to him on 29 July 1997,
John Higham omitted evidence that he performed any activity as the “authorised officer” after 10 July 1997 and added misleading evidence that he was busy on other duties.
John Higham fabricated a report that he said he wrote in September or October 1997 so there could be no suspicion aroused by an AGS solicitor giving expansive reasons in a letter in 1998. This letter detailed John Higham’s reasons for his decision after John Higham refused to give the Applicant a statement of reasons for his October 1997 decision.
The Personal Manager John Whyte who guided John Higham in his role as “authorised officer” was kept out of the proceeding and gave no evidence.
Diaries kept by John Molyneux of activities, meetings and conversations with officers of the Fourth Respondent about terminating the Applicant’s employment in 1997 were concealed.
Unplanned disclosures shortly before the Besanko hearing in July 2007 interfered with but ultimately did not derail the respondents’ goal of obtaining the decision they intended.
A draft report dated 11 July 1997 that was identical to the report that John Higham included in his affidavit of 2007 in the Besanko proceeding where the ONLY differences were that the draft included his name as the author and had a date on which he wrote it,
A minute date 30 July 1997 by Geoff Seymour, the immediate superior of John Growder, and the First Assistant Commissioner of Information Technology Services of the ATO. The final paragraph of this minute began with the sentence:
“Mr Dunstan must immediately return to work from suspension”, and
A description of a document, but not the document, dated 29 July 1997 by John Higham addressed to John Growder and John Whyte, a Personal Manager reporting to Robyn Orr:
“29 July 1997 - National Office Minute from John Higham to John Growder and John Whyte both of the ATO which contains advice from Tony Burslem of the AGS and attaches a draft report by John Higham of the ATO and a document titled ‘Your Password Your Access YOUR Responsibility’.”
The above unplanned disclosures did not prevent the respondents’ achieving their intended goal of obtaining the decision by fraud in the Besanko proceeding:
John Higham when pressed in cross-examination on the description of minute he wrote on 29 July 1997 and the implication of the minute of Geoff Seymour written on 30 July 1997 claimed he could not remember any minute he wrote dated 29 July 1997.
John Higham when pressed in cross-examination on why he could not make a decision on 29 July 1997 and the implication that his reasons he wrote on 11 July 1997 were precisely identical to the anonymous and undated report he annexed to his affidavit, gave false evidence that he was busy preparing to go overseas and could not complete his role as “authorised officer” until October 1997.
5AB The planned fraud, together with John Higham’s hastily constructed oral evidence at the hearing before Besanko J in July 1997 necessitated by the above unplanned disclosures shortly before the hearing, were successful.
5AC Besanko J remained unaware of Robyn Orr’s knowledge that she obtained on or very soon after 29 July 1997 that required her to recall the Applicant to duty. In his decision Besanko J accepted and relied upon the false and misleading evidence of John Higham:
120 As I have already said (at [55]), at about the time the second respondent made his decision to charge the applicant and in fact charged him, he prepared a report which set out the course of events and details of his decision. It is in similar terms to the statement of his reasons set out in the letter from the AGS dated 28 July 1998 (see [56] above). There was a draft of the report as early as 11 July 1997, and other than the date and the second respondent’s name, the draft report and the report are in the same terms. The applicant submitted that in those circumstances the second respondent had been guilty of unreasonable delay and had failed to decide to charge, or to charge, or both, “as soon as practicable” after forming the opinion required by s 61(2). 121 The second respondent gave evidence, which I accept, that he was very busy in July and August 1997 and that he was required to travel overseas in order to carry out a research project. He was overseas from late August to late September 1997. |
5AD The issue of fraud raised in the proceeding before Wigney J had not been raised in any other proceeding:
The suspicion that there was fraud in the Besanko proceeding first arose on publication of the ACT Court of Appeal decision in 2016, and
The Burns proceeding was conducted on an administrative law principle; that the respondents believed, incorrectly, that they were at liberty to replace a decision by an authorised officer with a later decision. Fraud had never been alleged in any previous occasion. This legal basis for the Burns proceeding was encouraged by counsel for the Respondents:
In submissions by Mr Stretton for the respondents before the Administrative Appeals Tribunal on 2 February 2010 at transcript P-121, line 34 – P-122 line 5:
MR STRETTON: Yes. Thank you. May I deal with the last matter that Mr Dunstan dealt with the last matter of documents which he handed up; the transcript before Besanko J and the with that document and the [Higham] minute of 29 July 1997. In my submission, Mr Dunstan has been a little bit disingenuous in relation to his submissions because he is full well aware that Mr Burslem provided advice to the Tax Office, which is the advice he’s referred to. The Tax Office did not accept that advice [emphasis added]. The matter was then referred to an independent barrister, a Mr McInnes, I think in Melbourne, who provided advice that Mr Burslem’s advice was wrong and the Tax Office then proceeded on the advice that Mr Burslem was wrong and that Mr McInnes was right and they were entitled to proceed with the charges.
So, if anything, the memo which Mr Dunstan relies upon dated 29 July 2007 is a memo which substantiates Mr Higham’s integrity because at that stage Mr Higham’s only got Mr Burslem’s advice and not the subsequent advice. So he’s said, “Well obviously if Mr Burslem of AGS advises I can’t charge him. Well, I can’t charge him. I’m not going to charge him. And he should be recalled to duty.” But, of course, what transpired was that the correct advice was then obtained and the charges were proceeded with. So that explains quite clearly those documents and that passage in the evidence. |
And in written submissions by Mr Stretton to the ACT Supreme Court dated 13 October 2010 at [3.6]:
The document [John Higham’s minute of 29 July 1997] does not set out a final decision [emphasis added] on whether to charge Mr Dunstan. The final decision [emphasis added] to charge Mr Dunstan was set out in charges dated 13 October 1997 issued by Mr Higham, following the ATO's receipt of further advice from Mr M. McInnes of counsel (who disagreed with earlier AGS advice). These charges were unsuccessfully challenged by the plaintiff in ACD 77 of 1997 [in the Besanko proceeding in 2007]. |
5AE John Higham gave oral evidence in the Burns proceeding in 2013 admitting that the evidence he gave to Besanko J about why he was unable to make a decision in July 1997 was false.
Fraud in the Proceeding before Wigney J – Unsuccessful attempts and successful attempts
5AF In the present proceedings the respondents’ legal representatives perpetrated a fraud, details of which are set out in the paragraphs that follow, deceiving and misleading Wigney J. The decision of Wigney J copies deceptive and misleading submissions including those that plainly misrepresent and bear no similarity to allegations and facts pleaded in the Statement of Claim:
Deceitful misrepresentation of the elements of the fraud the respondents perpetrated in the Besanko proceeding contrary to rule 21 of the Australian Capital Territory Legal Profession (Barristers) Rules 2021.
Conflating the proceeding brought by the Applicant in the Federal Court of Australia on 4 November 2021 with the events and proceedings ensuing and caused by the fraud perpetrated by the respondents in the Besanko proceeding, and
Conflating the proceeding brought by the Applicant in the Federal Court of Australia on 4 November 2021 with the events and proceedings ensuing and caused by the first respondent Robyn Orr failing to recall the Applicant to duty in July 1997.
Counsel for the Respondents made this submission at transcript page P-147, lines 35 - 45:
MS FIRKIN: …The second element of a fraud claim is that there must be actual fraud. This is set out in the reply at paragraph 13(b). It’s – it requires a meditated and intentional contrivance. It requires, actually, knowingly - - - HIS HONOUR: And recklessness wouldn’t be sufficient? MS FIRKIN: No, actually, and knowingly defrauding the court. And something more than incorrect or false evidence is required. And we say for the reasons I’ve already given that nothing comes close to establishing a fraud on the court in the allegations made by Mr Dunstan and there’s simply no basis in the pleaded claim for a meditated and intentional contrivance to keep the court in ignorance of the true facts |
Counsel for the Respondents made a related written submission dated 16 May 2022:
120. Allegation 5 is that Mr Higham gave deliberately or recklessly [sic] false evidence during the Besanko J proceeding and the Burns J proceeding of having created his Final Report in September or October 1997, at the time of deciding to lay charges of misconduct against Mr Dunstan. Mr Dunstan alleges that Mr Higham only created the Final Report at the time he filed his affidavit on 9 March 2007 in the Besanko J proceeding. 121. The evidence of Mr Higham which is alleged to be false is identified in the particulars of the SOC at [39]. It is the references to Mr Higham’s “final report” in paragraph 84 of Mr Higham’s affidavit dated 9 March 2007 in the Besanko J proceeding, paragraphs 21 to 23 of Mr Higham’s affidavit sworn 11 September 2011 in the Burns J proceedings, and the Final Report which is annexed. |
Contrary to the Counsel for the Respondents misleading and deceptive submissions, that were unsuccessful:
The Statement of Claim pleaded intent, and not recklessness, at [40]:
40. The second respondent Mr Higham’s evidence referred to in paragraph 39 hereof was false at the time he gave it, in that: a. The second respondent Mr Higham did not write the “final report” in 1997, and b. The “final report” was created some time after 1997 for the purpose of being given in evidence to mislead the court in the Besanko proceedings. |
and
The Applicant’s oral submissions, in this instance of an unsuccessful attempted fraud, conveyed to the Court the correct position at transcript pages P-153 line 24 - P-154 line 8:
HIS HONOUR: The point that was being made is that people can give what turns out to be incorrect or false evidence for all manner of different reasons. MR DUNSTAN: Yes. HIS HONOUR: They may have a faulty recollection – all manner of things. The point is that if your action for – based on fraud before Besanko J, you have to demonstrate not just that the evidence was false or not credible or not plausible, but deliberately false MR DUNSTAN: Yes. HIS HONOUR: with the intention of MR DUNSTAN: Yes. HIS HONOUR: deceiving the court. That’s the point. MR DUNSTAN: Yes. And the point that I was going to make in reply is while people may misremember and give an incorrect description of what they remember, you can’t create a document 10 years after you – you can’t create a document and then say, “I wrote this 10 years ago”. That’s not something that you HIS HONOUR: I think MR DUNSTAN: That is clear evidence of intent. HIS HONOUR: If you had an arguable case that a document had been falsely manufactured well after the event, then that would most likely constitute fraud. MR DUNSTAN: Yes, that’s my understanding, that if you’re looking for intent, you couldn’t go much better than someone having created a document and falsely stating that it had been created in different circumstances. … |
Counsel for the Respondents made obfuscating and confused submissions at the hearing before Wigney J, to the effect that discovery of some of the July 1997 documents in the Besanko proceedings, unforeseen by the respondents when their affidavits were filed, was supposedly a complete “answer” to allegations of the respondents’ fraudulent intentions, their legal representative’s knowledge of the fraudulent intention, and their representative’s effort to conceal the fraudulent intention after he learned of it. Counsel for the Respondents also submitted that allegations in the Statement of Claim, that she persistently referred to mischievously as “theories”, could not be proved when relevantly the allegations were not denied.
These deceptions were successful, becoming the foundation and key elements of the decision delivered by the Court.
At transcript pages P-118, line 21 – P-120, line 45:
MS FIRKIN: … The second allegation which also goes to Mr Higham’s decision and somewhat inconsistently reverting back to the argument that Mr Higham did not decide to charge Mr Dunstan at all on 29 July 1997 – and we’ve called this allegation 5 – this is said to be that Mr Higham gave false evidence during both the Besanko J proceeding and the Burns J proceeding about having created his final report in September or October 1997, at the time of deciding to lay charges of misconduct against Mr Dunstan. HIS HONOUR: So this is a claim that the final report was, in fact, created in 2007 - - - MS FIRKIN: Yes. HIS HONOUR: - - - for the purpose – presumably for the purposes of the proceedings before Burns J – or, anyway, whatever - - - MS FIRKIN: No. HIS HONOUR: - - - for whatever reason that it was created - - - MS FIRKIN: So I can – and I will tell you the - - - HIS HONOUR: - - - in 2007. MS FIRKIN: I want to step through the - - - HIS HONOUR: Okay. You do that. MS FIRKIN: - - - argument, because – just to show the flaws that are inherent in it. So what the – what Mr Dunstan asks this court to do is to draw a string of inferences and he alleges this is a fresh fact. So the first thing he says is that Mr Dunstan – sorry, Mr Higham gave affidavit evidence before Besanko J about the final report. That affidavit was on 9 March 2007 and what Mr Dunstan alleges is that when Mr Higham gave that affidavit evidence about the final report, he did not expect the court or Mr Dunstan to be aware of – and this is important, your Honour – the draft report, the Higham minute, the Molineux notes or the Orr minute, so that the theory [sic, undenied allegation], your Honour, is that he has deliberately referred to a final report, thinking that Mr Dunstan would not have all of those other documents. Now, the critical one in all of those is the draft report and we submit, your Honour, that this very first part of the inference falls down because the draft report was discovered in the Besanko J proceeding on 27 March 2017, which is only 18 days after the date of Mr Higham’s affidavit and the discovery of the draft report is inconsistent with any theory [sic, undenied allegation] of an attempt by Mr Higham to conceal the draft report. So next, what Mr Dunstan says is that – and we come back to this meeting on 14 July 1997 – Mr Dunstan says that Mr Higham must have given his draft report to Mr Burslem at this meeting and then he asserts that the Burslem advice – sorry, I retract that. Then he says that the statement of reasons that Mr Burslem gave on 28 July 1998 to Mr Dunstan copied from that draft report. So you will remember, potentially, your Honour - - - HIS HONOUR: But the draft report is in, effectively, the same form as the final report? MS FIRKIN: As the final report. And then the - - - HIS HONOUR: Which is in the same form as the draft report, other than it doesn’t have “draft” in the name. MS FIRKIN: I think that date – or I can’t remember - - - HIS HONOUR: Yes. MS FIRKIN: - - - the specifics, but the material substance was the - - - HIS HONOUR: Yes. MS FIRKIN: - - - same. And you will recall that Mr Dunstan sought reasons for the decision to charge and, in 1998 - - - HIS HONOUR: Yes. MS FIRKIN: Yes. And those reasons, effectively, take from what could have been either the draft report or the final report. So there’s no – and Mr Dunstan wants your Honour to infer that they were taken from the draft report and not the final report because of this meeting on 14 July 1997. HIS HONOUR: What’s the meeting of 14 July got to do with it? MS FIRKIN: Well, this is the opportunity, according to Mr Dunstan’s theory [sic, undenied allegation], for Mr Higham to give Mr Burslem the draft report and from that, you’re asked [sic, NOT asked] to infer that the statement of reasons takes from the draft report, as opposed to the final report. And, in our submission, there – that is not a proper basis for that inference to be drawn. Then – and this is the crux of the theory [sic, undenied allegation]. Then Mr Dunstan concludes that if the court was not to know that the draft report existed – this is the court before Besanko J – as Mr – if they were – if the court was not to know that the draft report existed as Mr Higham had intended, he must have invented a final report as the presumed source of the statement of reasons and we submit that that’s entirely rebutted by the fact that the draft report was discovered in the Besanko J proceedings. But in any event, putting all of that to the side, the hypothesis [sic, undenied allegation] isn’t coherent in this way: your Honour, the hypothesis [sic, undenied allegation] is directed towards an allegation that Mr Higham is trying to conceal the fact that he did not – he decided not to charge in July 1997. The draft report reflected a decision - - - HIS HONOUR: To charge. MS FIRKIN: - - - to charge. HIS HONOUR: To charge, yes. MS FIRKIN: There is no - - - HIS HONOUR: Because it was before the Burslem advice. MS FIRKIN: Yes. And so there’s no sensible basis to say he had a motive to conceal the draft report. The other thing that, on this argument, Mr Dunstan says is that there is no evidence that the final report ever existed in an official file. Now, this is something to which – that is pleaded and to which the respondents submitted there was no basis for that final assertion. And you will recall yesterday that Mr Dunstan said multiple times, “Well, I asked for proof that the final report was prepared at the time by writing to the solicitors for the respondents and they responded that they were not obliged to provide me proof”. And you will recall also that Mr Dunstan said multiple times that the respondents have put on 600 pages of evidence. Now, can I just make very clear that the evidence that the respondents have put on is the evidence which we understand Mr Dunstan to rely upon and as having been referred to in his original statement of claim and not intended, obviously, for an adjudication of the truth of the allegations that Mr Dunstan makes. |
And at Transcript P-144, line 30 – P-145, line 26.
HIS HONOUR: So the fresh fact is Mr Dunstan’s allegation that the final report was only created in 2007 and that that fresh fact is really a process of reasoning MS FIRKIN: Yes. HIS HONOUR: arising supposedly from something said in the Court of Appeal. MS FIRKIN: I believe what is adverted to there is that Mr Dunstan – I think I, yesterday, took you to a decision where Mr Dunstan sought to challenge a paragraph of the Court of Appeal’s reasoning as being incorrect. HIS HONOUR: Paragraph 45. MS FIRKIN: Yes. HIS HONOUR: That’s – I see. So when Mr Higham eventually decided to charge the appellant with misconduct, the document was provided to the appellant in the same terms as the draft report save that the word “draft” was deleted. That’s the final report. MS FIRKIN: Yes. And I understand the challenge is that Mr Dunstan says he did not receive a final report. And, therefore, I understand the argument to be that, upon thinking about that alleged error, he has come up with a credible motive which is referred to in paragraph 67 subparagraph (C)(i). HIS HONOUR: But hang on. I’m sorry I keep coming back to this and I may be completely wrong about it, again, but wasn’t the final report discovered? MS FIRKIN: The final report was attached to the – the final report was attached to the affidavit of Mr Higham in the Besanko J proceeding and the draft report was discovered, I think, it was 18 days following. HIS HONOUR: So the final report was MS FIRKIN: Attached to the affidavit. And the draft report was discovered all in the Besanko J proceeding. HIS HONOUR: Okay. Yes. MS FIRKIN: And so it’s – but, on top of this not being clearly pleaded, the other point to raise is this only goes to allegation 5 of the eight allegations that I’ve taken you to. And for the reasons I’ve already taken you to, it’s not material in that there was no need to conceal the draft report but also there’s the issue estoppel. … |
12A The Respondents’ counsel Ms Firkin knew that her assertion of John Higham having no motive for concealing his draft report from Besanko J was deceitful and misleading:
It was common ground that the second respondent John Higham did not decide to charge the Applicant with misconduct in July 1997, although the draft report was dated 11 July 1997.
In 2007 the Respondents and their legal representatives anticipated correctly that revealing the draft report to Besanko J would create a conundrum. How to explain an implausible delay from July to October 1997 before any decision was made?
The Applicant did not ask the Court to make any inference, including that the sole or main purpose of the “Final Report” was to explain the contents of a letter by the AGS written in 1998. This was an allegation for the respondents to admit or deny by filing a defence. If denied, I would ask the Court to consider the evidence I would file prior to a hearing.
The crucial conclusion to be established by a consideration of all the evidence at a hearing of the application was that the Court in the Besanko hearing was to have no knowledge of a document by John Higham dated 29 July 1997 that Robyn Orr believed was a decision to not charge the applicant. This allegation is spelled out in the Statement of Claim filed in the Wigney proceeding.
Compelled to address this issue by the unplanned disclosure of the draft report, John Higham gave evidence under oath to Besanko J that he was preparing to go overseas and did not have time to finalise writing a decision. His explanation was accepted, and this is reflected in the Besanko decision at [120]-[121].
Cross-examined in the proceeding before Burns J, John Higham gave evidence under oath that he was not preparing to go overseas and that his evidence to Besanko J in July 2007 to explain the delay was false.
The problem created by the unplanned disclosure of the draft report remained. John Higham still needed an explanation for a delay of 3 months from mid-July and mid-October 1997.
In support of this deceit, Ms Firkin also tried to discredit the allegations and material facts in the Statement of Claim that listed John Higham’s evidence in which he acknowledged that evidence he had given under oath to Besanko J was false. This is in Ms Firkin’s submissions on 21 September 2021, transcript P-109, lines 3-25. Ms Firkin makes her deceitful submission that the second respondent John Higham’s acknowledgement of giving false evidence are not his admissions at all, but are conclusions made by the Applicant:
“[Mr Dunstan] draws from all of that the conclusion that the evidence that was given by Mr Higham in the Besanko J proceedings was false.”
In doing so, Ms Firkin has deceived and manipulated the Court to consider and dismiss the allegations in the Statement of Claim by misrepresenting allegations and statements of fact as “conclusions” drawn by the Applicant – and to deceive the Court into this path in the absence of any hearing of evidence and before the filing of a defence that denies any allegation.
12B Deceit by Ms Firkin - that the fraud John Higham intended with his fabricated “Final Report” was not a material fact - was relied upon by Wigney J in the decision he made at [3]:
“…nothing of substance has changed and no material fresh facts have emerged.”
12C The unplanned disclosure of the draft report created the same inexplicable delay to be addressed in the Burns proceeding. In this occasion, the explanation John Higham invented was that he was surprised when he received written legal advice on 29 July 1997. The true situation was that he and the Personnel Manager, John Whyte received that legal advice at a meeting on 14 July 1997 with Tony Burslem of the AGS. The truth was that the written version was anticipated.
12D Burns J relied upon this false evidence from the second respondent John Higham in 2013.
Counsel for the Respondents had the opportunity to develop the above submissions overnight after the Applicant provided the correct, and clear explanation of the case the previous day at transcript page P-56 Lines 6-45:
MR DUNSTAN: One of the submissions in reply was that the documents were before me, which was true. But the precedents on fraud deal with fresh facts. The idea that the document is the same document is not quite the same as having a fact recognising that there’s a discrepancy. And a recent British case dealt with a signature on a piece of paper that – it wasn’t recognised at the time – was a fraudulent signature. And that person was given the right to argue that there had been fraud by using a document with – her signature had been forged. Certainly, it was the same document. But the fresh fact was recognising that the signature was forged. So the fact that I had seen the documents before is not a response to – a document – it’s the same document. But the fresh fact is the recognition of the fraud, your Honour. My submission is – on set 4, on the front page, your Honour – yes. In relation to the evidence that was just removed, that you said was not relevant, about the file and so on – in my statement of claim, I’ve mentioned that I became suspicious after the – I noticed – sorry. I never suspected the possibility of fraud with that final report until after the decision by the ACT Court of Appeal. But it still never occurred to me, even when I looked through the evidence. And those things that you say aren’t admissible in evidence – they certainly persuaded me that this didn’t look right. I was – if you like, my inquisitive mind said – “This doesn’t look right.” But I still couldn’t think of a motive for doing it. It seemed a very strange thing … to do. I just couldn’t imagine why someone would fabricate a report. And it was only quite recently, when I looked through the things again, that it, sort of – it was like a [light bulb moment]. I said, “You need something then – if you’re going to hide the – if you’re going to hide all the work that was done in July, including the minute at the end of July to say that Colin should be recalled to duty – if that’s all to be kept hidden, then you have to come up with a reason how Tony Burslem was able to include those reasons [from the draft report written in July] in the letter he wrote the following year.” And so it was only when realising that there was a purpose, that it struck me as, “That would explain why that document [the “final report”] was brought into existence.” And HIS HONOUR: Now, remember, Mr Dunstan, we’re just dealing with the production application. And I think you’re, sort of, straying more into the nature of your broader case. MR DUNSTAN: With respect, your Honour, I’m straying into the area of the loss of legal privilege as a result of – into the fraud exception principle of privilege, as the reason why no privilege should be accorded to the respondents on the basis of there’s a prima facie case that they have engaged in fraud, your Honour. |
In one attempted deception, Counsel for the Respondents perversely argued to the Court that the allegation of a fraudulent document could not be proven, when:
the allegation was not denied and
the Respondents filed evidence, inadvertently, of the truth of the allegation.
The Applicant attempted to avoid the Court being taken in by part of this attempted deception, taking the Court to the evidence filed by the Respondents that showed the Fourth Respondent had no record of any “Final Report” said to have been written in 1997, at transcript page P-74, lines 30-47:
MR DUNSTAN: There’s something in terms of the evidence about the final report. What is odd is that the solicitor for the respondents in 2007 received a bundle of documents that he had requested from the Tax Office personnel area, and he was then helping John Higham prepare his affidavit, and I’m surprised that he didn’t notice that John Higham had a document to attach to his affidavit that wasn’t among the documents that the Tax Office had provided. And I would have thought a question he might have thought of asking is, “Where did that document come from?” I would have been suspicious if I was a solicitor representing John Higham at that time, when I was filing his affidavit, your Honour. HIS HONOUR: Yes. MR DUNSTAN: And that is the evidence that the respondents have filed in response to my question, which was, “Is there any evidence that this document existed in 1997?” I didn’t ask them to put in that evidence, but they’ve filed the 2007 list voluntarily [- the list of documents the Tax Office personnel area provided in 2007 that did not contain a “final report” John Higham said he wrote in October 1997]. HIS HONOUR: Yes. |
When the Applicant showed the Court other evidence he described to the Respondents in writing almost a year before the hearing, Counsel for the Respondent was ready to make deprecating and misleading submissions:
That she did not understand the Respondents’ folio numbering procedure used in official personnel files,
That some documents in an affidavit had a different numbering scheme, and
That the documents exhibited by the Applicant – about the crucial allegation – not be accepted into evidence at Transcript P-122, line 40 to P-123, line 40:
HIS HONOUR: There would have to be some evidence about it. You just - - - MS FIRKIN: Yes. HIS HONOUR: - - - can’t tender a bundle of pages in the absence of any evidence and say something – some inference should be drawn from it in the absence of any evidence about the provenance at all MS FIRKIN: Yes, your Honour, and we agree and reaffirm our submission to that effect. I just wanted to correct something I had said - - - HIS HONOUR: Yes. MS FIRKIN: - - - for completeness, so I – there was – so I hadn’t said anything that was incorrect. But, I mean, the obvious things to note are that the numbers, 69 through to 82 – it’s not clear what happened before and it’s not clear if there are any documents that come after. We note that there are other versions of these same documents that are before your Honour. We don’t need to go to them, but they are found in MCM 16, pages 449 onwards, with different numbering on them. And even if it were the case that you could establish a file and that the final report were not on it, it’s still not a basis to infer that the final report was - - - HIS HONOUR: I – for me to make anything of this, I would have to – presumably, this may have been produced on subpoena at some stage and I would have to look at the original document, really, to make anything of it, as - - - MS FIRKIN: Well, your Honour, you can see by the headers it was produced – it has not been produced as one document and - - - HIS HONOUR: So it may have – so it has been reconstructed? MS FIRKIN: Yes, and Mr Dunstan said as much to the court yesterday. HIS HONOUR: Yes. MS FIRKIN: So I just wanted to clarify that I, on my feet yesterday, looking at it for the first time, thought it was running backwards but it turns out the documents were backwards. And so if all of those – I have taken your Honour in some detail through the allegations that were made. We say that the allegations do not reach the level that is necessary to say that there has been any fraud. We also say - - - HIS HONOUR: Well, at this stage of the proceeding – that is, in the context of a summary judgment application and a strike-out application, it – Mr Dunstan has to do no more than demonstrate an arguable case, so you - - - MS FIRKIN: Yes. HIS HONOUR: - - - really have to demonstrate it’s not even arguable. |
This evidence described in the Applicant’s letters to the Respondents and their legal representatives prior to the first case management hearing was plainly evidence the Applicant was to rely upon. Ms Firkin was deliberately deceitful in her response on being shown the evidence and her contradicting submission at [11] above:
“Now, can I just make very clear that the evidence that the respondents have put on is the evidence which we understand Mr Dunstan to rely upon…”
The thrust of the above submissions was to invite and encourage the Court to make decisions of fact in a summary dismissal application:
in the absence of evidence of the facts,
in the absence of any denial of the allegations, and
solely upon deceptive and false descriptions of the supposed evidence.
15A Where it is necessary to examine evidence to determine questions of fact that it is necessary to proceed to a hearing of a claim. Ms Firkin was deceitful:
in submitting firstly that the respondents had filed all the evidence they understood the Applicant was depending upon,
seeking to draw hypothetical inferences from this subset of evidence in a summary dismissal application, and
submitting she had no knowledge of further evidence - that the Fourth Respondent’s official file where the “final report” written in 1997 should be found but was conspicuous by its absence.
15B This was not the only evidence that was never considered. The deceit by Ms Firkin was successful in preventing a hearing of the applicant’s claims that was the only appropriate avenue for making findings of fact after a consideration of evidence. This of course is only necessary where the Respondents deny any of the allegations in the proceeding. Where it is necessary to examine evidence to determine questions of fact the appropriate course must be to proceed to a hearing of a claim.
15C Other evidence relevant to a hearing of evidence that the deceit avoided included:
In the minute by Geoffrey Seymour dated 30 July 1997, the first sentence in the final paragraph reads: “Mr Dunstan must immediately return to work from suspension”. This minute was given voluntarily to the Applicant by the Respondents’ then legal representative Robert Cutler with no claim of privilege except for 3 redacted parts.
A decision over the privilege claim – based on the Burslem legal advice mentioned in those redactions - was made at the hearing before Besanko J. The transcript reveals Besanko J made this decision before privilege was waived over the McInnis legal advice that revealed the Burslem advice – the basis of the privilege claim over some parts of the Seymour minute. He did not revisit that decision after the waiving of those privilege claims.
The reasons for the decision published in January 2008 might seem to allow a claim of privilege over the entire document – though the claim of privilege was for 3 passages related to the Burslem legal advice. Again, the effect of the waiver of the McInnis advice that revealed the Burslem advice was not considered.
A handwritten note by the second respondent John Higham dated 10 July 1997 is headed “Note to File S2 501 Pt1” . Its folio number is “69”.
The cover of the official file S2/501 Part 1 shows the file initially assigned to the First Respondent, Robyn Orr.
The Second Respondent, John Higham gave evidence on the disposition of his documents on completing his role of authorised officer, that the file would be retained in Personnel:
“All documentation in relation to such action is forwarded to the appropriate area of the ATO for retention on file.”
Second Tax Commissioner Richard Highfield in the Burns proceeding gave oral evidence on 24 October 2013. Two statements assumed greater relevance after the realisation the “final report” did not exist in 1997:
(Transcript page 641)
“When you read that document of 30 July, who did you give this memo to after receiving it from Mr Seymour?---Well, after reading it, I believe I gave it to Ms Orr, asking for her views.
You handed her a copy, did you?---I don’t recall specifically how the – the file [emphasis added] went from me to her.”
AND (Transcript page 652 and 653)
“Now, sir, what was your understanding on 30 July about the authorised officer’s position?---I have – I have no detailed recollection of that.
Well, sir, it’s the case, isn’t it, that he decided that he shouldn’t lay charges?
---Correct.”
The Court, and the Applicant alike, were confused by some of the above sophistry at the time.
16A. The Court, and the Applicant alike, were confused by some of Ms Firkin’s sophistry set out above in which Ms Firkin was theorising about the scope of the available evidence and what inferences she imagined could be drawn from it – assuming a defence was filed in which some of the allegations were denied:
The Applicant understood the Statement of Claim contained a complete answer to the most deceitful sophistry:
The crux of what the Respondents needed to hide in the Besanko proceeding and in the Burns proceeding was that the First Respondent, Robyn Orr, was required to recall the Applicant to duty in July 1997 because she believed the Second Respondent, John Higham had decided to not lay any charge against the Applicant.
The Applicant attempted to alert the Court to the key deceptive part of the submission at transcript page P-154 lines 3-12:
HIS HONOUR: If you had an arguable case that a document had been falsely manufactured well after the event, then that would most likely constitute fraud. MR DUNSTAN: Yes, that’s my understanding, that if you’re looking for intent, you couldn’t go much better than someone having created a document and falsely stating that it had been created in different circumstances. That’s not something that you can put down to a failure of memory and, sort of, excuse people for doing. In looking for evidence of intent, that is a key piece of evidence – and I was also concerned there that the explanation on why it was not credible to make that allegation was that the draft report was disclosed in the same proceedings. |
The Applicant’s submissions explained his understanding at that time of what could be a “fresh fact” in actions for fraud at transcript page P-73, lines 1-26:
MR DUNSTAN: It was never alleged that he [John Higham] had fabricated that document, because it never occurred to anyone during those hearings that it might have been fabricated. It did not occur to anyone until after the conclusion of those hearings. And so that was – the document was there, but a fresh fact was the possibility and the - - - HIS HONOUR: It’s not a fresh fact. That’s fresh – it’s not a fresh fact. It’s just a fact that someone, you, had thought about something after the fact. That’s not a fresh fact. MR DUNSTAN: No. It is, your Honour - - - HIS HONOUR: It’s not. MR DUNSTAN: - - - and is the same as the precedent that exists in the UK [Takhar v Gracefield Developments Ltd & Ors [2019] UKSC 13]. A signature on a piece of paper was there during the hearing. The signature was on the piece of paper when the claim that it was alleged to be a fraudulent signature was made. It was still the same document. It was still the same signature. It was still in front of the court the time before. It was even mentioned in the first proceeding that that document – that signature may be forged. But the court said, “Well, we’re not looking at that at the moment”. And that person was allowed her right to file an application alleging fraud on the basis that it was not simply a fresh fact, but it was also a cause of action that had not been argued and had not been determined before. And because it had not been determined before, it was held that that person had the right to commence a proceeding to have that question determined. HIS HONOUR: Yes, very well. |
The Applicant’s oral submissions addressed this important issue further at transcript pages P-185, line 16 – P-188, line 21:
HIS HONOUR: There’s still time available for you this afternoon and I’m not trying to shut you down at all. MR DUNSTAN: Yes. The nub of the answer is to avoid the use of the word “very similar”. They are similar [this proceeding versus the Besanko and Burns proceedings] but not the same. HIS HONOUR: Right. MR DUNSTAN: …[It] is necessary to agitate these claims which – the claims based on fraud were never put before. We never had the whole picture. We didn’t realise. We knew people might have forgotten to put something in an affidavit or they might have made a wrong statement but now we see it was actually a plan. The Orr affidavit that has been filed in the Besanko proceeding was filed back in November 2006, leaving out the mention of the Orr memorandum dated 15 August. The Growder affidavit was filed before the discovery documents were produced. His affidavit said, “I did not receive a document at all from John Higham.” And, finally, the third part of the puzzle [sic, scheme] was John Higham putting in an affidavit saying, “I didn’t do any work at all in July.” And, now, when you put all the pieces of the puzzle together, you can see the plan had been hatched back in July – in November, when the first affidavit was lodged, followed by the second piece which was to deny receiving the Higham minute [in July] and then, finally, the third piece of the entire scheme was to file a third affidavit that said, “I didn’t write a minute.” And that third affidavit wouldn’t have succeeded without the previous two affidavits having been designed deliberately for that purpose. That has never been seen before. Having the whole picture, it has never been examined by any court before because it wasn’t recognised before the key piece of – the key realisation of the fresh fact and said, “It all fits a pattern.” HIS HONOUR: So what was the fresh fact? MR DUNSTAN: Realising that that final report had been fabricated. HIS HONOUR: That’s – when you say, “realising”, you realising. MR DUNSTAN: Yes. HIS HONOUR: Yes. MR DUNSTAN: There was absolutely no reason to – I had no reason to suspect that John Higham would do something like that. HIS HONOUR: So realising that the final report had been falsified. MR DUNSTAN: Yes. That was the key fresh fact [emphasis added] and the precedents [emphasis added] I’m bringing a case for fraud are based on a fresh fact and HIS HONOUR: And what was it that made you realise that the final report had been falsified? MR DUNSTAN: I never – it never crossed my mind that it might be until I saw the mistake in the Supreme Court appeal decision, and I thought, “That does not look right.” I had – it just sort of rang a bell saying, “That doesn’t look right. I wonder why they said that.” HIS HONOUR: So you MR DUNSTAN: And, even then, I still couldn’t think of why he – I could say, “Okay. Well, it looks like the evidence indicates that that didn’t exist then.” But I had no – I couldn’t understand why he would do it. I said, “Okay. Well, it looks like he wrote it in 2007.” But I had no idea why someone would do something so silly. HIS HONOUR: So is this a fair way of putting what you’ve just said? That when you saw what you’ve called a mistake in the Court of Appeal’s decision which was the reference at paragraph 45 to the – Mr Higham providing a document – providing you with a document in the same terms as the draft save that the word “draft” was deleted. They’re the words. MR DUNSTAN: Yes. Yes. It might have been just HIS HONOUR: So when you saw that, the penny dropped, so to speak, and you went back and reanalysed all of the material you already had but with – in a different light and then pieced it together in a different way and it made you – is that a fair way of putting it? MR DUNSTAN: Yes. And I did that reasonably – like, those – the objection to one of the MFIs about the file that I tried to reassemble. That was part of the process of trying to work out HIS HONOUR: Yes. MR DUNSTAN: And that was – yes. It was a piece of information from 2007, a bit from the Administrative Appeal Tribunal, a bit from the discovery bundle from the [Supreme Court] – I think was sort of looking for copies with similar folio numbers and found as many as I could. HIS HONOUR: So you approached it – you approached the material – you already had with MR DUNSTAN: Yes. With a fresh – yes. Yes. But those pages were all over the place. It took a long time to collect – collate them. HIS HONOUR: Right. MR DUNSTAN: But I – so I had – I never began investigating until I had a suspicion, and I just never imagined that someone would do that and then even when I had a suspicion, I thought, “No. That can’t be right.” I mean, that just doesn’t make sense that it wouldn’t be – that he would create that document. And then that was – and I was so disappointed with that hearing and the outcome there, I sort of just – I didn’t want to think about it and that’s why it took a long time afterwards. I was sort of pressured into doing something. I just tried to ignore everything that happened outside the house. I stayed inside. I don’t go out much and I preferred not to think about it because it has always been painful dealing with the Tax Office. Eventually, I had to deal with it, and it was at that stage that I was – well, I cope reasonably well just by dealing with problems as a puzzle. I find like solving puzzles is relaxing and I don’t – I try not to get upset about them. That way it actually helps me just manage by looking at things as a puzzle. I thought, you know, like a – I think reading an Agatha Christie mystery where I feel that there’s – maybe book number four is missing. Like, somebody has torn out the last chapters of the novel and, of course, there must be an explanation for what happened at the end. So I try to think of it as a puzzle. And the puzzle to me was why would somebody do that and that was just sort of an unplanned thought that popped into my mind about what would be the possible reason for doing that. Now, my reason might be wrong but it wasn’t until then that I had the information to justify. You can make serious – I understand it’s quite improper to make serious allegations of misconduct of this nature without having an arguable case. And I couldn’t do that until this second moment of sort of accidental, you know HIS HONOUR: What was that? MR DUNSTAN: I’m not sure. Serendipitous as just a thought popped in my head and said, “That might be a reason.” Now, it may not be that that’s the right reason but it was at that point I thought, well, this is an arguable – this is a reasonable case to make and there were a lot of other pieces of information not – I haven’t listed all of the evidence in the statement of claim. I just wanted to make sure I wanted to followed the [Federal Court] rules carefully. It said, “Make sure that the other side is aware of what it is you’re alleging, but don’t put all of the evidence in.” So I put enough pointers to evidence to say, “This is clearly what it is I’m alleging.” You know, it was a big puzzle. Lots of jigsaw puzzle pieces that went together to come to this conclusion. I’m not happy with the conclusion. My relationship with John Higham was cordial. I can’t – so yes. Disappointed. I wasn’t angry. I was just disappointed and I didn’t believe that he would do something like this. So anyway, it took me a long time. I just ignored everything for a long time after the Court of Appeal decision. Circumstances required me to revisit it. For example, the cost order application. The money had been sitting in the Supreme Court’s trust account for five years or something. I just didn’t want to bother about it and they sent us a letter saying, “Please, resolve this.” So I had to go back and look at it then but I didn’t want to. It was just depressing. I prefer to stay home and solve puzzles. HIS HONOUR: So that explains MR DUNSTAN: That’s why it took so long, your Honour. HIS HONOUR: That explains from the time of the Court of Appeal decision. |
Counsel for the Respondents gave carefully constructed and copious deceptive misrepresentations of legal authorities about “fresh facts” in proceedings in which fraud is alleged at transcript pages P-142, line 6 – P-144, line 36:
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 [emphasis added]. HIS HONOUR: So things like new arguments based on documents or other evidence, that’s not sufficient to amount to a new fact [emphasis added]. MS FIRKIN: Yes [emphasis added], your Honour. HIS HONOUR: That’s a different – it’s different to the line of authority about not diligently acting. MS FIRKIN: Yes [emphasis added]. And so what we understand that to be directed to is if, through a lack of diligence, you weren’t aware of the fresh evidence and you become aware of the fresh evidence some time later, you can’t be criticised for not having raised that, what is considered the fresh evidence, in the earlier proceeding. HIS HONOUR: Yes. MS FIRKIN: But that’s something different than asking to take exactly the same evidence and recast the arguments and ask the court to draw different inferences from exactly the same evidence [emphasis added]. Now, Mr Dunstan yesterday made a number of references to a UK authority HIS HONOUR: Yes MS FIRKIN: - - - about a signature yesterday. We understand this to be a reference to the case found in the respondent’s bundle of authorities at tab 69, and you don’t necessarily have to – I’ve got a very short point. HIS HONOUR: No. No. I just want to mark it. MS FIRKIN: Yes. And it’s a decision of Takar. HIS HONOUR: Yes. MS FIRKIN: And I understood Mr Dunstan to be saying that the same evidence was the fresh fact because it was the forged signature on a document which was raised at a later point in time, but, in fact, the fresh evidence in that case was not the same document, but expert handwriting evidence that was obtained [emphasis added]. HIS HONOUR: Demonstrated that it was a forgery. MS FIRKIN: Yes. HIS HONOUR: Now - - - MS FIRKIN: And that’s found at paragraph 13. Now, to deal with the fresh facts – and this gets a little bit complicated, but the only fresh fact that is pleaded in the statement of claim in those terms - - - HIS HONOUR: This is a critical consideration [emphasis added] not only to – that is, fresh facts, not only a critical consideration to the so-called fraud claim, but again we come back to the negligence claim because you rely on various forms of estoppel or abuse of process, and you say what has changed since the Burns proceedings [emphasis added]. So it’s really a central issue [emphasis added]. MS FIRKIN: It is a central issue [emphasis added]. I’m not sure that any of the authorities goes so far on the estoppel point. HIS HONOUR: Well, no. I mean, it is a different point, but - - - MS FIRKIN: Yes. HIS HONOUR: But that Mr – I suppose the point is that Mr Dunstan might have an argument in respect of the estoppel point if some new facts had come to light since the Burns J proceedings. MS FIRKIN: Potentially. HIS HONOUR: Yes. MS FIRKIN: For the purposes of this application – and again reserving the respondent’s right – let’s assume that to be the case at its highest. HIS HONOUR: Anyway. Sorry. So which is the - - - MS FIRKIN: The only pleaded fresh fact is found at - - - HIS HONOUR: I think your reply submissions might have had a typographical error here because I - - - MS FIRKIN: I believe they do. HIS HONOUR: I tried to work it out and I couldn’t. MS FIRKIN: Sorry, your Honour. If you could bear with me. I will find it. HIS HONOUR: It’s really 67(A), isn’t it? MS FIRKIN: It is, your Honour. And here we come back to the theory [sic, undenied allegation] about a final report being created at a later point in time, and essentially what we can see is that Mr Dunstan asserts that there was no basis for their suspicion, it was still below the level required for alleging – before Besanko J was still below the level required for Burns J. And then it was only, according to Mr Dunstan, upon happening by chance on a credible motive for Mr Higham to create the final report in 2007 that the fresh fact is said to arise, and that’s in subparagraph (C)(i). HIS HONOUR: Sorry. Which paragraph are you - - - MS FIRKIN: So it’s 67, subparagraph (C)(i). HIS HONOUR: I see. I see. (i), yes. MS FIRKIN: So he happened by chance upon a fresh fact which was a credible motive – there is no fresh fact [emphasis added], your Honour. Mr Dunstan is simply seeking to raise a new argument which is an argument about what he considers to be a credible motive for creating a final report which, for the reasons we’ve already submitted, is not coherent, but, on any view, does not amount to a fresh fact in the reckless sense [emphasis added]. HIS HONOUR: Yes. MS FIRKIN: And just going back to my pleading point, this fresh fact is raised in the context of limitations as opposed to an action of fraud on the court. HIS HONOUR: So the fresh fact is Mr Dunstan’s allegation that the final report was only created in 2007 and that that fresh fact is really a process of reasoning - - - MS FIRKIN: Yes. HIS HONOUR: - - - arising supposedly from something said in the Court of Appeal. |
Counsel for the Respondents in written submissions filed 13 September 2022 gave misleading and incomplete information on an important legal principle:
B.2.1 Fraud on the Court: Relevant legal principles … 13. Heavy in the assessment of whether to grant relief is the principle of finality. In order to enliven the Court’s power to set aside a perfected judgment, an applicant must satisfy the Court of the following: (a) A party seeking to prosecute an action to set aside a judgment on the grounds of fraud must produce evidence of fresh facts that would provide a reason for setting aside the impugned judgment if the facts were established by proof. … |
This submission was misleading and incomplete, failing to inform the Court:
It conflicts with the Model Litigant Obligation of the Fourth Respondent – that it is not to require a party to prove something it knows to be true,
It has no relevance until the truth of the alleged fraud is denied, and
The Federal Court of Australia authority that evidence of fraud may be added after commencing a case in fraud. An argument that it is impermissible to “seek further evidence of fraud when the case to be met is that as at the time that the originating application was filed” was rejected in the Federal Court decision in 2016. See Commissioner of Taxation v Rawson Finances Pty Ltd (No 2) [2016] FCA 402 at [41].
The Applicant raised with the Court the fresh evidence disclosed by the Respondents on the morning the hearing commenced – that the Respondents had failed to provide discovery of the “Molineux Notes” when discovery was ordered in the Federal Court of Australia in 2007, and the ACT Supreme Court in 2011, and had failed to answer a 2013 ACT Supreme Court subpoena for the production of the Molineux Notes in circumstances where to have done so would have revealed the failure to provide discovery in 2007 and 2011. The Fourth Respondent also failed to provide the Molineux Notes in answer to a summons of the AAT in 2008.
Counsel for the Respondent gave deceptive and misleading submissions intended to conceal the seriousness of this belated revelation of evidence of repeated failure of the Fourth Respondent to comply with discovery orders and subpoenas issued by Courts, at transcript page P-192 lines 1 -37:
MS FIRKIN: And I believe you have before you the letter that Mr Dunstan referred to of my instructors on 16 September where they advise they did not have a more legible copy of the redacted version of MCM21, and that was in response to the case management hearing. And then to avoid any argument about not being transparent about what the respondents have, they set out precisely what they have, and that is Mr Dunstan’s own version of what he says is produced at the AAT, the redacted version, MCM, and then the Commonwealth identifies in answer to Mr Dunstan’s question, “Do you have an unredacted version?” – because if not, this whole production application is a waste of time. There is an answer to that, saying: We have an unredacted version with not all of the pages, but some of the pages. And then on 20 September, again to be fulsome to Mr Dunstan, there is a further letter that we heard about yesterday, and it says: Further to paragraph (c) of the previous letter, we advise that the Commonwealth yesterday located a copy of the pages from the notebooks of Dr John Molineux produced in the Supreme Court of the ACT on 11 October 2013 in unredacted form. There is nothing new in any of that [emphasis added]. Clearly the respondents must have had the unredacted document to put before Burns J as they did. Burns J ruled on the redactions. So it is clear that the respondents had an unredacted version. HIS HONOUR: I mean, part – some of the difficulties that may have been encountered by the respondents and/or their instructors – or your instructors simply arise from the fact that this all happened a very long time ago - - - MS FIRKIN: It does - - - HIS HONOUR: - - - including the proceedings before Burns J and - - - MS FIRKIN: That’s correct. With different solicitors - - - [sic, with the same solicitors] HIS HONOUR: Yes. MS FIRKIN: - - - different people across different documents and different times [emphasis added]. |
And at transcript page P-193 lines 3 - 16:
MS FIRKIN: - - - “what was produced to Burns J in unredacted form”. Now, there were some allegations that were bandied about a little bit earlier about something to do with this demonstrating that the Tax Office has had a complete version of John Molineux’s notes since 1997 and then an allegation that they weren’t discovered in 2007 – that 1999, 2007 and 2011 and that’s all something which Mr Dunstan intimated that he would include in an amended statement of claim as something else that is new. And I wish to nip this in the bud, your Honour, because again, we are still talking about the Molineux notes and all of the submissions that we have made about what can be drawn from those Molineux notes, the findings that have already been made with those notes present before Burns J, before the Court of Appeal, all of those submissions apply. There is not some new cause of action that arises from the fact that the respondents have provided an unredacted document in the same form – or, sorry, have in their possession an unredacted document in the same form as was provided to Burns J [sic, and another copy since 1997, part of which was revealed in the AAT in 2009]. … |
Contrary to the submission by Counsel for the Respondents, they had been represented by the same solicitor in the Federal Court from 2006, the AAT from 2008 and the ACT Supreme Court from 2010.
Counsel for the Respondents did not respond to the key allegation in the Applicant’s Statement of Claim of the fraud perpetrated on Besanko J in the Federal Court. They instead “paraphrased” it to conceal its existence from the Wigney J. Counsel for the Respondents “explained” this key instance of deceptive misrepresentation in their “Submissions in Reply” dated 13 September 2022, replying to the Applicant’s Submissions (“AS”):
… C.2.3 Alleged conspiracy to terminate Allegation 6: Ms Orr’s knowledge and role after her decision to suspend Mr Dunstan on 4 June 1997 64 49. Mr Dunstan contends at AS [78]-[83] that: (a) the allegation in the SOC [53] (Particular C(ii)) is that Ms Orr erred in failing to lift Mr Dunstan’s suspension from duty after Mr Higham’s “decision” on 29 July 1997, contrary to the PS Act; (b) the SOC does not allege, as the Respondents submit at RS [130], that Ms Orr conspired to terminate Mr Dunstan after she decided to suspend him under the PS Act on 4 June 1997. 50. If the Court is not satisfied that these are two different ways of raising the same issue [sic, emphasis added] such that the doctrine of issue estoppel does not arise, the Commonwealth maintains that Mr Dunstan made and / or had the opportunity to make all of these challenges to Ms Orr’s evidence that he now seeks to make in Dunstan v Higham [2014] ACTSC 206 and in Dunstan v Higham (2016) 310 FLR 58. To the extent that the challenges that Mr Dunstan now seeks to make to Ms Orr’s evidence are not identical to those recorded in those decisions, principles of Anshun estoppel or abuse of process prevent him from agitating them in this proceeding (see RS [127]-[131] and [133]). 64 SOC at [35], [36], [48], [53] (Particular C(ii)). |
Counsel for the Respondents in the above reply acknowledge grossly misrepresenting the key allegation contained in the Statement of Claim, and then immediately:
concealed the fact that this allegation is of fraud on Besanko J in the Federal Court,
concealed that the “paraphrasing” is not some arbitrary choice of words. The text that has replaced the real allegation is lifted from the Statement of Claim in the proceeding before Burns J in the ACT Supreme Court, and
concealed the fact that the foundation underpinning the ACT Supreme Court decision was the judgement in the Federal Court of Australia that was the result of the alleged fraud.
That is, the Counsel for the Respondents were not only deceiving Wigney J that the key allegation did not exist in the Applicant’s Statement of Claim. They were trying to persuade Wigney J to incorrectly believe that the Statement of Claim contained an allegation that was considered in the ACT Supreme Court proceeding without reliance on the fraud that was alleged in the Federal Court of Australia.
25A Counsel for the Respondents deceived Wigney J in stating:
“To the extent that the challenges that Mr Dunstan now seeks to make to Ms Orr’s evidence are not identical to those recorded in those decisions, principles of Anshun estoppel or abuse of process prevent him from agitating them in this proceeding.
25B Counsel for the Respondents deceived Wigney J, arriving at the above statement with a circuitous submission:
That a failure by the first respondent Robyn Orr to take an action required by law was instead a conspiracy with a number of people, and
That the real allegation, that Robyn Orr understood that John Higham had made a decision on 29 July 1997, was according to Ms Firkin something else entirely different and on which Burns J had made some decision – that he had not:
Transcript P-125 line 40 to P-126 line 33: MS FIRKIN: Yes. All right. Your Honour, I’m going to turn to allegation 6. Allegation 6 is a standalone allegation and this is that Ms Orr deliberately or recklessly gave false evidence during the Besanko J proceeding that concealed her knowledge and role after her decision to suspended Mr Dunstan on 4 June 1997. And essentially, what Mr Dunstan criticises her for is her belief that she was at liberty to obtain a second opinion about the Burslem advice. He refers to the minute and that there was no doubt in Ms Orr’s mind that Mr Higham had decided he would not proceed to charge Mr Dunstan and that he now alleges that she attempted to conceal that minute, even though that was not alleged before Burns J. Now, the respondents understood [sic, chose to misrepresent] all of that to be an allegation of false evidence which related to an alleged conspiracy by Ms Orr to terminate Mr Dunstan’s employment after her decision to suspend him and the respondents have submitted that that question was determined by Burns J and, in particular, Mr Dunstan’s cause of action in relation to conspiracy relying on the Orr minute was rejected and we’ve set out the relevant paragraphs at paragraph 130, your Honour. That finding was upheld by the Court of Appeal and to the extent that Mr Dunstan sought to challenge what we understood to be the case now being argued – sorry, what we understood the case now being argued as compared to the former decisions, we again rely on estoppel and abuse of process. Now, in response to all of that, Mr Dunstan contends at his submissions, paragraph 78 to 83, that he is not alleging that Ms Orr conspired to terminate him. Instead, what he is alleging is that she erred in failing to lift Mr Dunstan’s suspension from duty after Mr Higham’s decision not to charge him in July 1997 – so this piggybacks, if you like, on the other challenges, where Mr Dunstan seeks to re-agitate that Mr Higham had made that decision not to charge. Now, I’m not sure that that isn’t – to be – just to explain our reading at the statement of claim paragraph 35, what is said is Ms Orr gave evidence in the Besanko proceedings that concealed her knowledge and role after her decision to suspend the applicant, so to the extent that that is the allegations, the submissions that we made in the response answer that. To the extent that we are now dealing with a new allegation that the suspension should have been lifted – and, sorry, when I say “new”, this is also contained in the statement of claim that to the extent it’s a different argument, the fact that Mr Higham did not make a decision not to charge in July 1997 has been determined by Burns J and the Court of Appeal. Estoppel and abuse of process means that Mr Dunstan cannot rely on the evidence of Ms Orr in the Burns J proceeding to challenge those findings. There’s no proper basis to allege that Ms Orr erred in failing to lift the suspension. |
25C Anshun estoppel is relevant where a party fails to agitate a matter in a proceeding in which they might have. It has nothing to say where a party has agitated a matter, and the judgment of the Court in that proceeding fails to consider that matter.
See the applicant’s submissions in reply at [6] and [19] – [20] in the Burns proceeding:
“6. Mr Higham came to the view that charges should not be laid. He then provided advice to Mr Whyte and Mr Growder by minute that Mr Dunstan should be counselled. This was entirely in accordance with the requirements of section 61(2)(a). ... The obligation to take further action and recall the plaintiff to duty fell on the relevant secretary [Ms Orr], not the authorised officer.
…
19. Indeed, even if this court were to be satisfied that Mr Higham did not know he had made a decision, and did not know he was committing a breach of his obligations by reversing that decision, that would provide no comfort to the other defendants. Ms Orr gave evidence that there was ‘no doubt’ in her mind that Mr Higham had decided he could not proceed with the charge (transcript p703, line 29-31).
…
No ignorance on the part of Mr Higham can protect …[her] from the consequences of …[her] actions.
20. Similarly, no ignorance on the part of Mr Higham can protect the Commonwealth. The minute was forwarded to Mr John Whyte. Mr Whyte was not called to give evidence, and the court is therefore entitled to assume that his evidence would not have assisted the Commonwealth. …”
and
The judgment Dunstan v Higham [2016] ACTCA 20 by Murrell CJ, Penfold and Rangiah JJ in the ACT Court of Appeal judgment, at [38]:
“... Importantly, it was common ground between the parties that a decision made under s 61(2) of the Public Service Act that a person should not be charged is final, and the authorised officer has no power to subsequently make a contrary decision.”
The Court delivered a judgment in favour of the Respondents, having been deceived into forming the wrong conclusion, inconsistent with relevant authorities, that the “fresh fact” on which the claim was based was not material and was not a “fresh fact”, and that the allegations had been addressed in ACT Supreme Court proceedings.
That judgment also failed to consider the fresh evidence revealed on the morning the hearing commenced, and the issue of the Respondents failing to provide discovery of the “Molineux Notes” in 2007 and in 2011 and failing to answer an ACT Supreme Court subpoena in 2013 to produce the copy in their custody and control since 1997.
There was nothing to indicate to the Applicant that the efforts of the Counsel for the Respondents had succeeded in making the Court the victim of the deceit until the judgment was delivered in December 2023. This was a “fresh fact” only revealed when the decision was delivered.
While waiting for the decision, the Applicant understood that no cause of action in fraud existed unless and until a judgment obtained by fraud resulted from attempted fraud on the court.
More Fraud – In the Current Proceeding
29A An affidavit filed for the Respondents in the present proceedings contains a fraudulent allegation intended to deceive and mislead the Court.
29B The fraudulent allegation is first made in the affidavit of Ms McKean affirmed 14 March 2025 at [14]:
“In early 1997, concerns arose in the ATO about the applicant's access to restricted electronic data held by the ATO. …”
29C Ms McKean gives her fraudulent allegation a false imprimatur by the adjacent statements in her affidavit at [12]:
“For the purpose of making this affidavit, members of my team and I have reviewed the file and other papers held by Ashurst, as well as the public record of the applicant's litigious history. On the basis of that review, I am able to state the following understanding.”
29D Counsels Mr Parkinson and Mr Smyth for the respondents in written submissions dated 12 June 2025 made another fraudulent statement intended to deceive the Court about Ms McKean’s false allegation at [2]:
“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 and in doing so she stands in a completely different position to the pleader with whom Katzmann J was dealing in the extracted passage of Rose.”
29E Ms McKean in an email dated 25 June 2025 reaffirmed and did not resile from the false allegation she made in her affidavit filed for the respondents and endorsed the fraudulent statements made by counsel in written submissions she filed for the respondents:
“Having regard to the allegations advanced in your interlocutory application against them, the respondents' counsel have returned their briefs and will not appear for the respondents at the hearing. For the avoidance of doubt, the respondents consider that the allegations in your interlocutory application are unfounded and unmeritorious, and the withdrawal by the respondents' counsel is not (and should not be considered) a concession or admission by the respondents in respect of your allegations.”
29F Further submissions on 14 July 2025 by new counsel for the Respondents compound the offensiveness of the false allegation of serious misconduct against the applicant:
Submissions at [10] that the paragraph [14] of the affidavit in which the false allegation is made will not be read - not because it is admitted being false, but “in the interests of time and efficiency” (but see paragraph [c. i.] below),
Other submissions at [41] and [42] that allege the Applicant, in raising the issue of the false allegation of serious misconduct, has engaged in some further improper / inappropriate conduct – contrary to Dunstan v Morgan [2024] FCA 982 at [22] , and
Submissions at [44] that Counsel, instead of reading [14] of the affidavit filed on 14 March 2025, intend to “refer the Court to passages of previous judgments”:
Notwithstanding that the reason for not reading parts of the affidavit filed in March 2025 is “in the interests of time and efficiency” and the now proposed oral submissions are “in the interests of focusing on the real issues in dispute”, and
To put on evidence and ask the Court in their summary judgment application to consider questions of fact and of law that have arisen in this proceeding and are now included in the Statement of Claim.
29G The affidavit of MsMcKean filed in this proceeding misleads this Court by mirroring the deceitful submissions made to Wigney J alleged at [12A h] above. The Statement of Claim before Wigney J at [38] Particulars [B] sets out the evidence John Higham gave before Burns J in which he admitted that the evidence he gave before Besanko J was not true.
29H Ms McKean’s affidavit of 14 March 2025 again omits and obscures this material fact that John Higham made admissions in the Burns proceeding of giving evidence to Besanko J that was not true, stating at [17]:
“In proceedings commenced in the Supreme Court of the ACT in May 2010 (proceeding SC 273 of 2010), the applicant sought among other things to impugn the Besanko J judgment on the basis that there had been concealment from Besanko J of certain documents, and that certain witnesses had given untruthful evidence to his Honour.”
Fresh Facts
On or about 9 June 2024 the Applicant learned of the AGS article by Tom Begbie “Duties to the Court”. Material parts included:
The overriding duty of a lawyer to the court requires them to be frank and honest with the court about both facts and law. This applies to all dealings with the court, whether through pleadings, evidence or argument. … Lawyers must not misrepresent the law to courts and tribunals. Rather, they have a positive duty to bring to the court’s attention applicable legislation and any authorities that are binding or that have been decided by an appellate court. This obligation requires lawyers to make the court aware of binding or appellate authority that may be unhelpful to their client’s case. It is an obligation with added significance for the Commonwealth, because one component of the model litigant obligation is to act consistently in litigation. Leaving a court to act unaware of significant contrary authority may therefore breach not only the duty that lawyers owe to the court but also in some cases the model litigant obligation. … The evidence given in an affidavit should be frank and complete. In In re Thom (1918) 18 SR (NSW) 70 the court described as ‘reprehensible’ a solicitor’s involvement in preparing an affidavit that, though not literally false, created a misleading impression. |
On or about 21 June 2024 the Applicant learned of the legal principles set out in the judgment Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766 handed down on 24 November 2021. One source was an online article written by the UK law firm Exchange Chambers on 29 November 2021 at url https://www.exchangechambers.co.uk/park-v-cnh-industrial-capital-europe/
On or about 25 June 2024 the Applicant learned of the legal principle set out in the judgement Commissioner of Taxation v Rawson Finances Pty Ltd (No 2) [2016] FCA 402 handed down on 22 April 2016.
Before, during and after the hearing before the Court in September 2022 the Applicant understood that if the Respondents were unsuccessful with their Interlocutory Application they would then file a defence and a final hearing would follow. Because he held this belief, the Applicant could not rule out that the Respondents had provided evidence to their legal representatives that the “final report”, central to the basis of his case, had been created in 1997, and this would be revealed at a later step in the proceeding.
In the hearing the Court clearly conveyed that it understood the affidavit filed for the Respondents on this key issue was truthful.
Counsel for the Respondents did not correct this understanding:
ACD93/2021 20.9.22 P-72, lines 35 – 46 to P-73 lines 1 - 26 MR DUNSTAN: …[You’ve said] …that I’m asking the court to deal with the fact that there’s no evidence that it [the “final report”] did not exist in 1997. That would only arise if there is a defence filed in which it is denied – when the allegation that it was created in 2007 is denied, and that has not been done. And 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 [emphasis added], and you’ve criticised his evidence in various ways, before Burns J and in submissions in support of the appeal in the Court of Appeal of the ACT. And your submissions in that regard were rejected. MR DUNSTAN: It was never alleged that he had fabricated that document, because it never occurred to anyone during those hearings that it might have been fabricated. It did not occur to anyone until after the conclusion of those hearings. … |
In a letter to the Applicant of 16 November 2023 2022, the legal representatives for the Respondents disclosed that they did not claim or intend the Court to accept affidavit evidence they filed in the proceeding was true, and confirmed they had delayed until the day of the hearing to disclose the Respondents had more than one copy of the “Molineux Notes” in their custody and control: namely one since 1997, the second from 2013:
“our letters to you dated 16 and 20 September 2022 simply explained what copies [emphasis added] of the 'Molineux notes' were available to the Respondents”
“annexure MCM16 to the McKean affidavit is a copy of an affidavit sworn by Mr Higham on 11 September 2011. That annexure was included in the part of the McKean affidavit which chronicles the 2011 ACT Supreme Court proceedings”
“the transcript section to which you refer contains your response to a question from his Honour Justice Wigney as to whether you asserted "any other new allegations of fraud". Your response included a claim that Mr Higham's affidavit contained a false statement and that documents had been concealed during prior proceedings. Those assertions were unsubstantiated and the Court has not ruled on them [emphasis added, and, ultimately, failed to rule on them].”
More Recent Fresh Facts
On 19 June 2025 the Applicant wrote to Ms McKean, solicitor for the Respondents asking that she confirm an understanding that rule 87 (e) of Legal Profession (Barristers) Rules 2021required the respondents’ barristers to return the briefs they have accepted for this proceeding.
Ms McKean confirmed this understanding by email on 25 June 2025, writing:
“Having regard to the allegations advanced in your interlocutory application against them, the respondents' counsel have returned their briefs and will not appear for the respondents at the hearing.
The same obligation applied to the respondents’ counsel for the proceeding before Wigney J.
A second issue arising from the Respondents’ legal representatives in evidence and submissions is obligations of counsel to comply with a code of conduct made pursuant to legislation regulating their professions.
Authorities on judgements obtained by fraud address the question of diligence of the party who the is victim of the fraud.
No question of diligence by party arises where counsel appear before a Court in breach of their duty under the Barristers’ code of conduct. The responsibility to comply with their professional code of conduct rests squarely on the counsel.
The issue of Ms Firkin and Mr McDermott’s conduct relevant to rule 87 (e) of Legal Profession (Barristers) Rules 2021 had plainly been raised in the Applicant’s written submissions in reply to their misleading and deceitful submissions they filed prior to the hearing on 20 and 21 September 2021 before Wigney J. An instance is described at paragraph [23] above.
With total disregard for the Barristers’ professional code of conduct, Ms Firkin and Mr McDermott were in breach of that code when they appeared before the Court. Consistent with this disregard for profession codes of conduct, Ms Firkin asserted deceptively, among other things, to be protected by “absolute immunity” for anything she and her junior counsel submitted.
Exercise of Discretion
The Respondents’ legal representatives in evidence and submissions filed in support of their summary judgment application raise further issues.
One of these is whether the Court should exercise its discretion to set aside the decision of Wigney J.
In addition to errors induced by fraud, there are further matters the Court may take into account in coming to a conclusion that it should exercise its discretion to set aside the decision.
Authorities on summary dismissal are consistent, that where questions of fact arise, then it is necessary for a hearing after evidence has been filed. For instance,
Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458 by Mortimer CJ at [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.
And Colin Dunstan v John Highman [sic, Higham] & Ors [2010] ACTSC 133 by Jagot J at [14-15]
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. The difficulty with this submission is that it cannot be resolved on a summary judgment application. It appears that Mr Dunstan's case is that, a decision having been made on 29 July 1997, the disciplinary process under the Public Service Act 1922 was exhausted. The first defendant was thus functus officio. The disciplinary action taken against Mr Dunstan thereafter was outside the scope of the Public Service Act 1922 and thereby unlawful, giving rise to the various causes of action identified.
15. Whether these arguments have substance depends on the provisions of the Public Service Act 1922 (s 61(2) in particular), and the facts as found. It is not sufficient, as the defendants appeared to assume, to invite examination of the document of 29 July 1997 and a conclusion that the document does not constitute a decision for the purpose of s 61(2). …
Wigney J took a different and inconsistent approach, encouraged by the respondents’ deceptive submissions. This is illustrated in the following exchange:
Transcript, 21 Sep 2022 p.158 lines 43-46, p.159, lines 1-57, p.160, lines 1-17 MR DUNSTAN: Let’s see. That was – and there was a couple of other places where the submissions were based on an assumption that the evidence that I’ve pointed to didn’t conclusively prove the allegation and it wasn’t my intention that I would provide all of the evidence. So - - - HIS HONOUR: Sorry. We’re talking about two different things. One is the pleading, and you’re perfectly correct - - - MR DUNSTAN: Yes. HIS HONOUR: - - - that the pleading is to allege the essential facts, but not necessarily the evidence. MR DUNSTAN: Correct. HIS HONOUR: But once the respondents file an application saying you have no reasonable prospects of success, it is a matter for you to adduce evidence which persuades the court that you actually do have reasonable prospects of proving what is a very serious allegation, and so that is something that you have to attend to. So there’s no point saying, “I have other evidence,” or “I might have other evidence.” You have to show that you have evidence at least of an arguable basis for putting that serious allegation. |
The Applicant being taken by surprise by this approach, handed up a bundle of documents described in a letter he had sent to the Respondents and their legal representatives before the first case management hearing. That letter described in detail further evidence that the “Final Report” did not exist in 1997 when the Second Respondent, John Higham, claimed to have produced it.
The Applicant’s surprise with this approach was for two reasons:
One was an understanding that the evidence for establishing facts in dispute was a matter for a hearing and not for consideration in a summary judgment application, and
No allegations were denied and the Commonwealth as a model litigant was prohibited from requiring proof of an allegation it knew to be true.
Ms Firkin, counsel for the Respondents submitted in regard to the bundle of documents:
Asserted the 600 pages of affidavit evidence filed for the respondents was all the evidence the Applicant was relying upon, when plainly the Applicant’s letters about this bundle of documents described further material evidence,
That she did not understand her clients’ folio numbering scheme used universally for many decades in its official files – and thereby disputed that the documents were evidence of what was alleged, and further,
asked that the Court not accept the documents into evidence.
Wigney J agreed to Ms Firkin’s request and did not accept the evidence.
Date: 29 November 2024 16 July 2025
Signed by Colin Dunstan Applicant |
This pleading was prepared by the applicant, Colin Dunstan.
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