Applicant's Submissions in Reply to Submissions of Tax Commissioner

APPLICANT’S SUBMISSIONS 

IN RESPONSE TO ORDER 6 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 IN RESPONSE TO RESPONDENTS’ SUBMISSIONS

1. These submissions are pursuant to Order 6 of Thawley J made on 25 July 2025: 

If the respondents file evidence and submissions as permitted by order 5, the applicant file and serve any evidence and submissions in reply by 5 September 2025.

2. The most apt submission on behalf of the Respondents is at [44] where the failure to distinguish cause from consequences is clear: 

44. Further, Ferdinands and Storry (and indeed Luck, Ogawa and AZO24) are important Full Court decisions showing how the Court’s finite resources require protection.  The nature and frequency of the Applicant’s litigation as disclosed in Annexures A and B show there is a real risk that judicial resources will continue to be unduly burdened by the Applicant [sic]. His prior litigation history, and the findings made against him, establish that he will almost certainly continue to seek to litigate his grievance, and the cases of Ferdinands, Storry, Luck, Ogawa and AZO24 provide a sound jurisprudential basis for the Court to intervene and invoke a filter on any such future litigation brought by the Applicant.

3. “Table 4 – Comcare Litigation” of the Respondents’ submissions lists cases in which the judicial resources of the Administrative Appeals Tribunal and the Federal Court of Australia were unduly burdened. The cause was not the litigation of the Applicant. ALL of this litigation was caused by the failure of Comcare to perform its statutory functions. 

4. Ultimately, after three hearings before the Administrative Appeals Tribunal, a hearing before a single judge and two hearings before the Full Court of the Federal Court of Australia, the outcome achieved was: 

1. Two decisions made by Comcare, one in each of 1995 and 1996 were set aside, and 

2. An ill-considered reversal of a policy by Comcare that it had followed for over ten years was cancelled by the Full Court of the Federal Court of Australia in 2014. This was the outcome of Comcare’s meritless appeal of a 2013 decision by a presidential member of the AAT, the Honourable Justice Tamberlin. (Comcare proposed redefining a section of the SRC Act that read “had received a superannuation benefit” to be read to also mean, “had not received a superannuation benefit”.)

5. Comcare was successful in only the first of the above-listed cases – heard before the Administrative Appeals Tribunal in 1996. In doing so, it revealed crucial aspects of its approach to its statutory functions and highlighted that it was aware of specific defects in its decisions: 

1. Comcare asked the AAT to issue a summons to a counselling service provider, EASACT, that had a contract with the Applicant’s employer to provide counselling to its employees. 

2. The counselling service provider, in response to the AAT summons:

1. withheld some counselling notes of sessions the Applicant had attended. Some of the counselling notes contained references to withheld counselling notes, such as “Joint session with [another]. See file SLL[nnn]”, and 

2. Rewrote some counselling notes. These revised counselling notes contradicted a written report a counsellor had given to the Applicant two years earlier. 

6. That Comcare was able to make use of this relationship with EASACT alerted the Applicant to two problems with how it performed its statutory functions: 

1. Comcare knew it could rely on a counselling service provider to amend and withhold evidence that did not support the decisions it made, and 

2. The specific changes it obtained from the counselling service provider alerted the Applicant to the specific evidence Comcare considered was most damaging to the defective decisions it had made. 

7. Likewise with the proceedings involving HREOC and senior ATO officials, the Respondents’ own legal representative made a written submission to the Federal Court of Australia: 

1. that the senior ATO officials could NOT defend the claims the Applicant made without concealing documents in their custody and control, and

2. denied the existence of an order for discovery that had been made against those senior officials in that proceeding. 

8. By failing to comply with a Court order to file a sworn list of documents in those proceedings, the senior ATO officials’ legal representatives alerted the Applicant to the weaknesses that the Australian Taxation Office considered most damaging to its attempt to conceal defects in the performance of its statutory functions. 

9. The decisions, in the ACT Supreme Court of Burns J and Murrell CJ, Penfold and Rangiah JJ, in the Federal Court of Australia of Wigney J and the process in the Federal Court of Australia pursued by Horan J indicate the Respondents rely upon unreasonable expectations of members of the judiciary, just as Comcare understood it could rely upon its established relationships with EASACT to help conceal its failings in the performance of its statutory duties. 

5 September 2025

Colin Dunstan

Applicant

Schedule

No. ACD57 of 2024

Federal Court of Australia

District Registry: Australian Capital Territory

Division: General

Respondents

Second Respondent: JOHN HIGHAM 

Third Respondent: JOHN GROWDER 

Fourth Respondent: COMMONWEALTH OF AUSTRALIA 

Date: 5 September 2025