Applicant's submissions on Federal Court proposal to block proceedings
APPLICANT’S SUBMISSIONS
IN RESPONSE TO ORDER 4 MADE BY THAWLEY J ON 25 JULY 2025
No. ACD57 of 2024
Federal Court of Australia
District Registry: Australian Capital Territory
Division: General
COLIN GEORGE DUNSTAN
Applicant
ROBYN ORR and others named in the schedule
Respondents
SUBMISSIONS
These submissions are pursuant to Order 4 of Thawley J made on 25 July 2025:
The Applicant reads his affidavit and supplementary affidavit, both affirmed 14 May 2025 in the present proceedings, and his further affidavit dated 11 August 2025 and relies upon his submissions dated 15 May 2025 filed in this proceeding.
There are no grounds for making of an order proposed in the judgment Dunstan v Orr [2025] FCA 858 at [108] – [118]:
At [111] of this judgment three authorities are cited in support of the proposed order against the Applicant. There is little difference between them. The remarks below on two of those three authorities are enough. One of the authorities is Storry v Parkyn [2023] FCA 1141. This case is described in the judgment Storry, in the matter of Storry [2025] FCA 231 at [2] – [3]:
“The Vexatious Proceedings Order judgment was an appeal from a decision of a single judge of this Court (Storry v Parkyn [2023] FCA 1141) reviewing a Registrar’s decision to refuse to accept for filing Ms Storry’s originating process and affidavit which, on their face, the Registrar considered were frivolous or vexatious.
In making the order, the Full Court observed Ms Storry had been involved in 24 matters over the last seven years, including 19 since 2021.”
In this judgment at [115], the list of litigation by the Applicant includes Dunstan v Morgan [2024] FCA 982. This was canvassed in the hearing of the Respondents’ interlocutory application on 17 July 2025. It was clearly put in oral submissions that almost all judicial reviews of decisions by Registrars to refuse to accept documents for filing are unsuccessful. This judgment obtained by the Applicant is one of the very few successful judicial reviews of a decision by Registrars to refuse to accept documents for filing.
It is illogical to claim that this litigation, Dunstan v Morgan [2024] FCA 982, where the Applicant is successful can be vexatious or can be referenced as supporting an allegation of vexatious litigation.
Also, at [111] of this judgment another of the authorities cited in support of the proposed order Ferdinands v Registrar Burns [2024] FCAFC 105 which states at [5]:
“Mr Ferdinands has instituted many proceedings in many different courts and tribunals over many years. Mr Ferdinands’ near constant purpose has been to attempt to ventilate (and re-ventilate) grievances he holds in relation to events dating back to 1999. The key events giving rise to Mr Ferdinands’ discontent appear to be as follows. On 4 November 1999, he was convicted of an assault of an inferior by a Defence Force Magistrate. His penalty was to be demoted from the rank of corporal to private. ... On 27 February 2001, he was convicted of an assault in the Adelaide Magistrates Court. In November 2001, Mr Ferdinands was dismissed from the South Australian Police Service. As will be demonstrated in the analysis which follows, Mr Ferdinands appears to have exhausted all available avenues of challenging his convictions and the termination of his employment. Yet he persists. …”
This judgment at [115] makes an unsustainable assertion of the Applicant’s litigation:
“Mr Dunstan has also been involved in at least the following litigation in this Court, all of which appear to relate to the circumstances surrounding his suspension from duty as an officer of the ATO in 1997. …”
This assertion may be construed as an intentional attempt to draw a false resemblance between the litigation by the Applicant and the litigation by Mr Ferdinands described in Ferdinands v Registrar Burns [2024] FCAFC 105.
A cursory examination of litigation conducted by the Applicant listed at [115] in this judgment reveals that little has any connection with the Applicant being suspended from duty in June 1997. There is no resemblance with litigation by Ferdinands.
There is however what is certainly an unintended inference that might be drawn from the false assertion. This would be that the Applicant’s suspension from duty in June 1997 was an act of victimisation in retaliation for:
the Applicant lodging a complaint against the ATO for victimisation to HREOC in 1993,
the Applicant lodging claims to Comcare for harassment in his employment in 1994 and 1996, and
the Applicant commencing Federal Court proceedings in April 1997 ensuing from the 1993 complaint to HREOC.
The Respondents in the affidavit evidence of Ms McKean in this proceeding do not support the above inference and oppose the assertion in the judgment at [115].
Specifically, the affidavit evidence of Ms McKean dated 14 March 2025 does not support the assertion that litigation involving matters that arose in 1993, 1994, 1996 and April 1997 are related to the Applicant being suspended from duty in June 1997. This evidence at [14] – [15] of Ms McKean’s affidavit is:
“In early 1997, concerns arose in the ATO about the applicant’s access [sic, attempted access] to restricted electronic data held by the ATO. Officers of the ATO undertook an internal enquiry process, the consequence of which was that the applicant was suspended from duty on 4 June 1997 …
By various means, the applicant has sought to impugn the disciplinary process to which he was subjected in 1997 …”
Litigation by the Applicant has followed consideration of legal advice whenever it was accessible. This is true of litigation related to the complaint of victimisation made to HREOC in 1993, claims to Comcare made in 1994 and 1996, the proceeding in April 1997 arising from the complaint to HREOC in 1993, and proceedings arising from the Applicant’s the suspension from duty in June 1997.
In each of the above four separate matters the Applicant only commenced litigation as a last resort and only after the breakdown of administrative decision-making processes to resolve controversies.
The following sections demonstrate that the proposed order does not and cannot have any relevance to the Applicant. There is no resemblance at all between the Applicant and Ferdinands and the Applicant and Storry.
Comcare
Comcare and his employer, the Australian Taxation Office rejected an application for a “Return to Work Programme” and then Comcare rejected claims for compensation for periods of incapacity arising from a compensable illness that was contributed to by harassment in my employment.
Comcare’s legal representatives encouraged the Administrative Appeals Tribunal to make an invalid decision published on 28 June 1996, Dunstan v Comcare [1996] AATA 40. The Applicant was represented at this hearing by Christopher Ryan counsel, and Lander & Co, solicitor.
On appeal to the Federal Court of Australia, Mansfield J agreed with the Applicant that the Tribunal had erred and remitted the claim to be heard again by the Administrative Appeal Tribunal. On 11 December 2006 Mansfield J published his judgment Dunstan v Comcare [2006] FCA 1655, allowing the Applicant’s appeal, ordering that the decision of the Administrative Appeals Tribunal of 28 June 1996 be set aside. The Applicant was self-represented in this proceeding.
At the rehearing of the Applicant’s claim for compensation which included a further period of incapacity for work throughout 1996 contributed to by the Applicant’s employer conduct towards the Applicant. The Applicant was self-represented in this proceeding.
The Administrative Appeals Tribunal published its decision Dunstan v Comcare [2010] AATA 449 on 10 June 2010:
Encouraged by Comcare’s legal representative, repeated the error first made in its decision on 28 June 1996 and that Mansfield J had criticised in his judgment Dunstan v Comcare [2006] FCA 1655.
Was critical of the conduct of the Australian Taxation Office towards the Applicant in December 1995 and decided he should be compensated for the period throughout 1996 in which he was incapacitated for work, and
Neglected to make any decision on the Applicant’s continuing incapacity due to a chronic ailment contributed to by his employment.
On appeal to the Full Court of the Federal Court of Australia, in which the Applicant was represented by Timothy Crispin, counsel and Ron Clapham, Solicitor & Notary Public, the FCAFC allowing the appeal, publishing its decision Dunstan v Comcare [2011] FCAFC 108 on 24 August 2011:
the presiding judge observed in opening the hearing it was unusual for the appellant, as in this case, to rely upon the evidence of Comcare’s medical expert.
In its unanimous decision the Full Court was critical of the Administrative Appeal Tribunal:
failing to comply with the findings of error made by Mansfield J, and
failing to judicially consider and make any decision about the continuing incapacity of the Applicant after 1996 due to a chronic ailment he suffered contributed to by harassment in his employment.
On remitting these matters for rehearing, one of the three Federal Court judges said it should be heard by a Tribunal differently comprised.
The Administrative Appeal Tribunal reheard the matters remitted by the Full Court of the Federal Court. The Applicant was represented by Timothy Crispin, counsel and Ron Clapham, Solicitor & Notary Public. The Tribunal in its decision Dunstan and Comcare [2012] AATA 567 on 28 August 2012 corrected the errors identified by the FCAFC, including setting aside Comcare’s decisions of 7 June 1995 and 3 September 1996, substituting:
“the applicant has suffered a disease, namely chronic depression (disease), that was contributed to in a material degree by his employment with the Commonwealth, …”
“…remits the matter to the respondent to assess the periods during which the applicant suffered incapacity as a result of his injury and to calculate the amount of compensation to which he is entitled in respect of those periods…”
Comcare shortly after, on or before 10 December 2012 [1] , reversed a policy it had followed on legal advice since 2001:
“The consensus of the advice provided to Comcare is that there is no legal basis under which an employee who has preserved a benefit in either the CSS or the PSS could be considered to have received a lump sum for the purposes of sections 20 to 21A of the SRC Act. So Comcare proposes to amend the current policy approach to take account of these factors. [2] ”
Comcare did not inform the Applicant of this policy change until later, redetermining the compensation payable to the Applicant on 21 January 2013.
An effect of the policy change was to transfer liability for all recipients of compensation from Comcare to Comsuper upon recipients reaching minimum retirement age. The Applicant, represented by counsel Timothy Crispin and solicitor Ron Clapham, Solicitor & Notary Public conducted the test case on this policy reversal. The Administrative Appeal Tribunal set aside Comcare’s change in policy in its decision Dunstan v Comcare [2013] AATA 402 on 17 June 2013.
Comcare appealed this decision to the Full Court of the Federal Court of Australia. The Applicant was represented by counsel Timothy Crispin and solicitor Ron Clapham, Solicitor & Notary Public. Comcare’s appeal was dismissed by the FCAFC in its judgment Comcare v Dunstan [2014] FCAFC 21 given on 7 March 2014.
All similar cases had been stayed in July 2013 pending the outcome of Comcare’s appeal.
Comsuper also had a direct interest in the outcome of this appeal. It would have become liable for income support payments that Comcare expected to avoid had its appeal been upheld.
HREOC (now the Australian Human Rights Commission)
The Applicant lodged a complaint alleging victimisation in employment with the ACT Human Rights Office in September 1993, on the advice of his solicitor. The ACT Human Rights Office at that time was acting as the ACT agent of HREOC.
Two documents the Applicant obtained several years later showed that in December 1993:
an ATO officer Don White selected by Geoff Seymour wrote a decision he submitted to Moira Scollay, First Assistant Commissioner, Human Resources Division, on a complaint the Applicant made alleging harassment in the workplace by a female subordinate. This decision said there was no harassment, and
Sally Petherbridge, Director, ATO Human Rights Office, requested legal advice from HREOC on whether she should handle a harassment complaint by the Applicant given she had previously advised Linda Millar, an ATO Equal Employment Officer, who was providing help to the female colleague who was harassing the Applicant. This legal advice stated there was a prima facie case of harassment in the workplace, and the Applicant’s complaint should be accepted and investigated
Two to three years later in early 1996 Sally Petherbridge conducted a reconciliation process between the Applicant and senior ATO officers. This process broke down when the ATO officers confirmed their position was the Applicant should withdraw his complaint against them, and they would continue to prevent him returning to his position as Assistant Director, Database Service.
Sally Petherbridge then investigated further after joining the Applicant’s harassing colleague as a respondent and asked her to reply to the Applicant’s complaint. See annexure CGD15 of the Applicant’s affidavit dated 14 May 2025.
Following this investigation, Sally Petherbridge wrote a decision referring the Applicant’s complaint for a public hearing by HREOC. This decision, accompanied by a report occupying 3 large lever-arch folders was sent to Legal Services area at HREOC in Sydney. Before any reply was received, Sally Petherbridge departed from the ACT Human Rights Office.
Due to a blunder, the Sex Discrimination Commissioner Sue Walpole and the Director of Investigations, Keiran Pehm concluded that further investigation was needed. They reached this conclusion in the mistaken belief that Sally Petherbridge’s investigation report consisted only of Volume 1 of the three lever arch folders she assembled.
They then returned only Volume 1 of the three lever arch folders to the ACT Human Rights Office with a request for further investigation. In the next day or two, everyone involved in this process learned of the additional two lever arch folders of documents that were not considered when deciding more investigation was needed. Despite this, the decision for yet another investigation instead of arranging a public hearing was not changed.
If HREOC had proceeded with the public inquiry after realising it only looked at one of the three volumes prepared by Sally Petherbridge in her decision to refer the Applicant’s complaint for a public hearing, the Applicant would not have commenced any of the three legal proceedings in the Federal Court of Australia in April 1997 (ACD30 of 1997, ACD31 of 1997, and ACD32 of 1997). These proceedings arose because of the folly in rejecting the decision of Sally Petherbridge to refer the complaint for a public hearing. There was no fault on the part of the Applicant that caused court resources to be taken up.
HREOC’s repeated investigation in second half of 1996 was still incomplete in December 1996 when the ACT Human Rights Office ceased to act as an agent for HREOC, and the Applicant’s complaint file was transferred to HREOC’s office in Sydney.
During this period, the Sex Discrimination Commissioner Sue Walpole retired, and Moira Scollay transferred from the ATO to the position of Privacy Commissioner with HREOC. She was given the delegation of Acting Sex Discrimination Commissioner. She was also named as a respondent in the Applicant’s complaint of victimisation in employment at the ATO.
In a phone conversation with the Applicant the HREOC Director of Investigations, Keiran Pehm assured the Applicant that Moira Scollay would not take any part in deciding what to do with his complaint.
A HREOC investigating officer who reported to Kieran Pehm, Rocky Clifford, asked Moira Scollay - a respondent to a complaint of victimisation made by the Applicant - if she agreed to discontinue the Applicant’s complaint (against herself and former ATO colleagues). Moira Scollay gave her agreement to this decision.
Conduct of FCA Proceedings ACD30, ACD31 and ACD32 of 1997
The Respondents in the above proceedings were represented by the Australian Government Solicitor. In a written submission to the Federal Court of Australia, Kim Bennet for the Australian Government Solicitor asserted the Respondents could not defend the claims in ACD30 of 1997 if privileged documents in their possession were disclosed (See paragraph 48.d below).
The Applicant believed this legal opinion of the Respondents’ legal representative - that they could not defend the claims he made against them in ACD30 of 1997. There was no reason to doubt their own legal representative.
Orders for discovery were made in ACD30 of 1997 on 19 August 1997:
The sworn list filed on behalf of Geoff Seymour did not include a claim of privilege over any documents in his custody or control. His memorandum dated 30 July 1997 to Deputy Commissioner Richard Highfield was not in his sworn list of documents.
The sworn list of documents for John Growder was not filed in the Court, in defiance of the order Finn J made on 19 August 1997. The sworn list of documents given to the Applicant did not include a privilege claim over any documents in his custody and control. The minute dated 29 July 1997 that John Higham sent to John Growder is not in his sworn list.
The Australian Government Solicitor wrote on 24 September 1997 to the Applicant giving a reason for a delay in providing John Growder’s sworn list of documents, claiming that he has been on sick leave for some time. This reason is inconsistent with items in a bill of costs filed later by the Australian Government Solicitor. The items implied a meeting took place, and that there was no delay due to any absence on leave.
The most credible explanation for the inconsistencies is that the real reason for the delayed service was this meeting at which a decision was made to delete John Higham’s minute sent to John Growder in July, and in view of this calculated omission, to not file the sworn list in defiance of the Court order.
The Australian Government Solicitor asserted in submissions to the Federal Court of Australia, at paragraph 48.d below, that Finn J’s order for discovery of 19 August 1997 in ACD30 of 1997 was not made.
There were four issues that concerned the Applicant regarding the bills of costs filed by the Australian Government Solicitor in ACD31 of 1997 and ACD32 of 1997:
The Australian Government Solicitor included many items that clearly were for ACD30 of 1997. This was resolved when the AGS acknowledged that the objection was valid, and those items were removed.
The Australian Government Solicitor included an amount for a meeting between one of their inhouse counsels and the Applicant. The Applicant knew that no meeting had taken place and had a diary that recorded the activity on which he was engaged on the date of the supposed meeting. The AGS withdrew this item but only after proposing to bring their inhouse counsel to a taxation hearing to “confirm” the false claim.
In 1998 Finn J advised the parties that it was necessary to inform the Director of Public Prosecutions of the private prosecutions, ACD31 OF 1997 and ACD32 of 1997. Following this, the DPP soon after took over and immediately discontinued the prosecutions. The AGS then applied for a non-party cost order against the Applicant and was successful in this:
The bills of costs prepared by the AGS revealed that all but a small sum for items claimed was incurred before the date the DPP discontinued the prosecutions, and
The items billed after the DPP’s decision were mostly for legal research on obtaining non-party cost orders, this research being preceded by a request from the DPP to the AGS for advice on this topic. The Applicant objected to paying for research on a legal principle the AGS carried out on behalf of the DPP.
There was a clear inference that the DPP’s agreement to take over the private prosecutions was conditional on the defendants’ solicitor seeking non-party cost orders against the Applicant. This of course meant the DPP was signalling to the defendants’ solicitor that it would discontinue the prosecutions if its condition was met. That is, that their solicitor was to seek non-party cost orders against the Applicant once the DPP discontinued the prosecutions.
Kim Bennett, Australian Government Solicitor, wrote to the Applicant on 19 September 2001 about the taxation of the bills of costs that the AGS was pressing to be undertaken without delay, even though no hearing date had been set for ACD30 of 1997:
“7. AGS will, of course, substantiate the respondents' bills of costs in the above matters on the basis of their files.”
But following a direction from a Registrar, Kim Bennet of the AGS made the following written submission to the Federal Court of Australia, resiling from her undertaking that the AGS will “of course” substantiate the respondents' bills of costs:
The next taxation conference was the final one the Respondents’ legal representative attended. There was an acrimonious exchange between the taxing officer and the Respondents’ legal representative. The taxing officer expressed doubt that any item related to doing legal research was allowable and took a dim view that the Respondents should seek to profit by twice claiming the maximum amount allowable for each item of work, once for each Respondent, even though it was performed only once on behalf of both Respondents.
The next step that was wasteful of court resources was proceedings taken by the Respondents’ legal representatives. They applied for lump sum cost orders against the Applicant after choosing to discontinue the taxation process which was not going well.
Comments on a few statements in the judgment
The judgment relies upon statements from the impugned judgement of Wigney J given in December 2023. That December 2023 judgment, including the statements in it, is the subject of the present proceeding that alleges it was obtained by fraud, misconduct and other irregularities. Reliance upon any of those statements is premature.
The judgment at [95] states:
“…[Mr Dunstan’s] argument that the 2023 Judgement was procured by fraud is ultimately no more than a further attempt, which he has no reasonable prospect of successfully prosecuting, to seek to revisit the case against the respondents which he has been pursuing for many years and had determined against him.”
Several leaps and turns must be traversed to arrive, ultimately, at the above statement. The issue in this proceeding is quite simple. It is that fraud on the Federal Court of Australia in the proceeding before Wigney J procured the judgment given by Wigney J in December 2023. No more. No less. It is what it is.
The above statement at [95] in the judgment resembles reasons for a decision of Registrar Morgan to refuse to accept for filing the Applicant’s application commencing this proceeding:
These reasons were considered and rejected in the judgment of Kennett J Dunstan v Morgan [2024] FCA 982 given on 28 August 2024.
As Thawley J observed at the hearing of the Respondents’ summary dismissal application, a hearing before a single judge of the Federal Court of Australia cannot overturn in a judgment given by another judge of this court.
He is bound by that judgment by Kennett J.
The Respondents have not appealed that judgment by Kennett J.
Returning to the judgment given by Thawley J, at [100] it states:
“…even if it were established that a fraud was committed which led to Wigney J making the orders which he did, that would not disturb the fact that the proceeding before Wigney J was an abuse of process which ought to have been summarily dismissed”
Plainly this is contrary to the principle “fraud unravels all” [3] . If it were established that fraud was committed which led to Wigney J making the orders which he did, that most certainly would disturb any judgment given by Wigney J. It must be set aside.
A party who commits fraud on the court is not entitled to the benefit of any judgment obtained, even if it may have obtained the same judgment had it not committed the fraud. [4]
As to the second part of the judgment at [100]:
“…the fact that the proceeding before Wigney J was an abuse of process which ought to have been summarily dismissed.”
It is not permissible to make this finding in the absence of a hearing of evidence and submissions on fact and law, which requires a hearing of the Applicant’s claim. It is not a matter for cursory consideration in a summary judgment application.
In any event, what is alleged in the current proceeding is that Wigney J was deceived by the Respondents’ legal representatives. The above part of the judgment at [100] is an answer to a question that is not before the Court in this proceeding.
The essence of the Applicant’s claim is that the First Respondent, Robyn Orr, was required by the Public Service Act 1922 to recall the Applicant to duty on her understanding on 29 July 1997 that the authorised officer, the Second Respondent John Higham had decided he could not charge the Applicant with misconduct. This has not been decided before.
It is inevitable that if Besanko J knew the “final report” was fabricated to deceive him so that he would not become aware that the First Respondent, Robyn Orr, failed to carry out her statutory obligation arising on 29 July 1997, he would have made a different decision,
If not for the failure of the Respondents’ legal representative to disclose the Higham Minute of 29 July 1997 to Besanko J after privilege was waived on 2 July 2007, it is also inevitable that Besanko J would have made a different decision, and
The judgment at [71] notes:
“It goes without saying that the allegation of fraud must be established by the strict proof which such a charge requires”.
This fails to consider two crucial factors addressed in the Federal Court Rules 2011 (Cth) and the Legal Services Directions 2017:
The Commonwealth has not denied the allegations [5] , and
As a model litigant, the Commonwealth is obliged to not require a party to prove a fact that it knows is true. [6]
There are three further issues:
It is well-established that in any case where it is necessary to make findings of fact, a hearing of the claims, after the filing of a defence and evidence, is necessary. An application for summary judgment cannot be used to make findings of fact regarding evidence. [7]
At the two-day hearing in September 2022 of the Respondents’ interlocutory application to dismiss the Applicant’s proceeding, the Applicant gave documents showing the “final report” did not exist in 1997. Ms Firkin said she didn’t understand the documents and asked that they not be accepted into evidence. Wigney J in his judgment did not accept the evidence. This was the very same evidence the Applicant explained in a letter to the Respondents before the first case management hearing and which the Respondents chose to not answer. (See [59] below.)
My submission in this proceeding addressed this matter but Thawley J omitted this from his judgment. Rejecting and failing to consider evidence is a tactic that can only be intended to prevent proof.
As to vexatious conduct and taking up Court resources, the Applicant wrote to the Respondents before the first case management in the proceeding before Wigney J and asked if there was any basis for questioning his reason for believing the “final report” was not written in 1997.
The Applicant was amenable to discontinuing the proceeding if he was mistaken.
The Respondents chose to not respond, preferring to waste the Court’s resources to challenge the proceeding by deceit while failing also to deny the truth of the allegation of fraud in the Besanko proceedings.
This judgment fails, and indeed refuses, to acknowledge that the conduct of the Respondents, and their legal representatives is solely responsible for the proceedings that ensued from the Besanko judgment of January 2008.
This judgment is instead full of passages taken from previous decisions that, likewise, fail to acknowledge this fact, preferring to attribute responsibility to the Applicant:
The judgment at [11] includes a summary from the impugned judgment of Wigney J, which is itself a copy of the impugned judgment of Burns J, where at [52], Wigney J says:
“…Mr Dunstan argued that the minute was concealed by the defendants because they falsely claimed legal professional privilege in respect of the whole of the minute, as opposed to the single paragraph of the minute that contained or referred to legal advice. The solicitor who acted for and advised the defendants in respect of the privilege claim gave evidence and was cross-examined in the proceeding before Burns J. The solicitor maintained that he believed that there was a proper basis for a claim of privilege over the whole document. The ACT Court of Appeal held that the solicitor was wrong in his belief that legal professional privilege could and should be claimed in respect of the whole minute, but that there was no basis to conclude that he did not genuinely believe that there was a proper basis for the privilege claim. …”
The Applicant’s real argument is quite different to the above statement. The Applicant’s real argument was clearly expressed in the Federal Court proceedings before Wigney J and before Thawley J.
There is no mention of the Applicant’s real argument in either of their judgments.
If there was, this attempt to sheet home responsibility for the use of Court resources to the Applicant would be untenable. The Applicant’s real argument can only have been omitted, improperly and deliberately, for this purpose. The question of responsibility for “taking up Court resources” rests solely on the conduct of the Respondents and their legal representatives.
The related transcript of evidence given by Robert Cutler, solicitor for the Respondents in the Burns proceeding is embedded below. Note that the Applicant has taken NO ISSUE with the initial claim of privilege in the Besanko proceeding over the Higham minute dated 29 July 1997:
It is necessary to include the transcript here because every statement in all documents filed by the Applicant, and in oral submissions on the issue of the waiver of privilege of the Higham minute dated 29 July 1997 have been studiously omitted from the judgments given by Wigney J and by Thawley J.
The only reason further proceedings occurred was because Robert Cutler, solicitor for the Respondents, failed to “turned his mind” to the question of waiver of privilege at the hearing before Besanko J on 2 July 2007, and “did not disclose the minute of 29 July 1997 at that time”.
The judgment of Jagot J, Dunstan v Highman [sic, Higham] 2010 ACTSC 133 given on 27 October 2010 makes it very clear that no fault can be attributed to the Applicant for the proceedings that followed because of Robert Cutler’s failure in 2007.
During the hearing before Thawley J, counsel revealed that the Respondents had not checked if redactions in documents filed in the present proceeding also concealed evidence over which privilege was waived.
The judgment of Thawley J was that the Applicant’s application requesting the Respondents check the redacted evidence to see if privilege was waived is dismissed. The reason for this judgment disregarded one obvious fact – that the Applicant did not know (and indeed could not know) what the concealed evidence was. The “reason” for dismissing the application was that the Applicant was unable to say what forensic value the concealed evidence may have. Logical thinking is in short supply in examples such as this.
Authorities – A brief observation on the legal principle
In the judgment Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100, of Lee, Feutrill and Jackman JJ state at [3]:
“Most self-represented litigants behave courteously and are often forced to do so because of circumstances outside their control and sometimes, of course, they present valid claims and defences. But a few self-represented litigants, unrestrained by the norms regulating the professional conduct of lawyers and aggrieved by a perceived wrong, become serial litigants obsessed with seeking vindication of their position and in doing so mount, often repeatedly, arguments which would never be advanced by a responsible practitioner. This phenomenon has occasioned significant problems for this Court in the efficient exercise of its original and appellate jurisdiction.”
The Applicant in the present proceedings has invariably preferred to engage legal representatives, including senior counsel assisted by junior counsel to conduct litigation for him, and has done so every time he has been able to do so.
The Applicant was prevented from being represented by counsel Richard Thomas in the hearing before Wigney J in September 2022 due to circumstances that were not of the Applicant’s choosing.
Both the Court and the Respondents’ legal representatives refused all (five or more?) requests the Applicant made to adjourn the hearing in September 2022 so that his counsel would be available to represent him.
With the judgment of Wigney J being given 15 months later, on 7 December 2023, and with only two weeks to meet the deadline for filing any appeal, there was no time to engage legal representatives who were available immediately before the December/January holiday period.
That judgment was also at such variance to the evidence, written submissions, and what transpired at the hearing that to do so would have created a very difficult exercise to communicate, let alone explain the plethora of issues to a responsible practitioner.
Notwithstanding this uncharacteristic choice by the Applicant to not engage legal representation following the Wigney J judgment, he was nevertheless successful as a self-represented litigant in a judicial review of a Registrar’s decision – being only the third successful Applicant with such a review in the last decade – the judgment of Kennett J, Dunstan v Morgan [2024] FCA 982 finding the Registrar made an error in refusing to accept for filing an application lodged by the Applicant.
In contrast to vexatious litigants, the Applicant also accepted responsibility for conducting the test case with Comcare in the Administrative Appeals Tribunal, and the ensuing appeal by Comcare to the Full Court of the Federal Court of Australia – described at paragraphs [24] to [29] above. This litigation was of public importance to Comsuper and all current and future recipients of income support from Comcare. The Applicant’s legal representatives were successful in both proceedings.
15 August 2025
Colin Dunstan
Applicant
[1] Staunton-Latimer and Comcare [2013] AATA 389 (6 June 2013) at [10].
[2] Comcare Jurisdictional Policy Advice No. 2001/18 at [12].
[3] Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766 at [51] – [52].
[4] Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766 at [51] – [52].
[5] Federal Court Rules 2011 (Cth), r 16.07.
[6] Legal Services Directions 2017, at 2(e)(i).
[7] The Applicant’s submissions dated 15 May 2025 in this proceeding at [16] – [18] citing FCA judgments of Mortimer CJ
Schedule
No. ACD57 of 2024
Federal Court of Australia
District Registry: Australian Capital Territory
Division: General
Respondents
Second Respondent: JOHN HIGHAM
Third Respondent: JOHN GROWDER
Fourth Respondent: COMMONWEALTH OF AUSTRALIA
Date: 15 August 2025
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