Applicant's Oral Submissions at Hearing for Thawley J to Make Vexatious Litigant Order
APPLICANT’S ORAL SUBMISSIONS
IN RESPONSE TO ORDERS 4, 6 and 7 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
ORAL SUBMISSIONS AT HEARING
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These oral, additional, submissions summarise and expand those made pursuant to Orders 4 and 6 of Thawley J made on 25 July 2025:
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The Applicant also received new information last week of relevance to the matter before the Court. The implications add to three of the matters canvassed in the original submissions.
New Information
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The Applicant’s submissions of 15 August 2025 at [51] are on the premature reliance in the judgment by Thawley J of 25 July 2025 of statements from the judgment of Wigney J that are challenged in these proceedings.
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The Applicant has recently received information about seriously flawed statements in that impugned judgment.
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The Applicant first raised issues with the statements in his affidavit affirmed 5 February 2024. This affidavit was filed in his application for leave to appeal (proceeding ACD72 of 2023) from that 2023 Judgment of Wigney J.
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Following the judgment Dunstan v Morgan [2024] FCA 982 of Kennett J accepting the Applicant’s judicial review of a Registrar to not allow filing of the present proceeding, that leave to appeal application was discontinued. The present challenge on the grounds that the decision of Wigney J was procured by fraud was then commenced in place of that discontinued proceeding.
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The concerns the Applicant raised at [32] – [35] and [50] of his affidavit are:
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Evidently without considering these issues Thawley J in his judgment Dunstan v Orr [2025] FCA 858 on 25 July 2025 repeated and relied upon those statements, at [10]:
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Further to the flaws the Applicant had previously raised, it is now clear that the judgments of both Wigney and Thawley JJ disclosed and took into account that the applicant was charged with, or convicted of, offences to which subsection 85ZW(b) of the Crimes Act 1914 (Cth) applies:
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The Applicant highlights that the statement of Wigney J, repeated by Thawley J, has omitted the pertinent details that Wigney J introduced with his unfinished phrase “On 26 April 2000, Mr Dunstan was convicted of [?] …”.
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The Applicant filed the omitted details pertinent to the Crimes Act 1914 in his affidavit of 5 February 2024 in proceeding ACD72 of 2023. The evidence is at pages 27 – 38 of the affidavit.
A further contravention of a Commonwealth Statute
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Thawley J stopped the Federal Court of Australia Registry accepting for filing an amended Statement of Claim that the Applicant lodged for filing on 16 July 2025. A copy of an email from the Federal Court Registry of 16 July 2025 is attached.
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In doing so, his Honour disregarded and / or contravened subsection 35A(4) of the Federal Court of Australia Act 1976 in subjecting a Registrar and the Federal Court of Australia Registry to his direction or control in relation to the manner in which they were to exercise their power:
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A fair-minded lay observer aware of this interference and the benefits for the Respondents described in paragraphs [15] - [20] below would have a reasonable apprehension that Thawley J might not bring an impartial mind to the adjudication of the issues before him.
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The Respondents could easily have given themselves the opportunity to argue that leave to file the amended Statement of Claim should not be granted. They lost this opportunity by failing to comply with the Federal Court Rules 2011 that required them to file a defence to the original Statement of Claim. Had they done so, the Applicant would have needed leave to file the amended Statement of Claim.
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Had the Respondents complied with the requirement to file a defence, they would have the further obligation of a Commonwealth Agency to be a model litigant. One such obligation is they are not to require a party to prove something they know is true.
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By choosing to not comply with the Court Rules, and not file a defence, the Respondents thus avoided their obligation to admit any of the allegations in the original Statement of Claim they know to be true. This failure by the Respondents created the situation that allowed an amended Statement of Claim to be filed without leave.
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By interfering with Federal Court Registry’s duty to accept for filing the amended Statement of Claim without leave pursuant to the FCR, Thawley J relieved the Respondents of the consequences of their decision to not file a defence while allowing them to retain the advantage this gave them.
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The reason Registries are allocated such duties is to alleviate the workload on Justices of the Federal Court of Australia. It is inconsistent for Thawley J to take over duties assigned to Registrars and at the same time claim his motive for proposing draconian action to limit the Applicant’s use of Court resources is to avoid what he has himself engaged in.
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Thawley J in his decision of 25 July 2025 compounded the advantage the Respondents derived, speculating on proof of allegations that the Respondents may have been obliged to admit were true.
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On 29 July 2025, the Federal Court of Australia Registry accepted for filing the Applicant’s amended Statement of Claim. In doing so, the Registry completed the duty assigned to it by the Federal Court Rules 2011, delayed by Thawley J’s improper interference in the performance of its functions on 16 July 2025.
The Serious Nature of the Misrepresentation of the Applicant’s Proceedings
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The Applicant addresses this matter in the original submissions filed 15 August 2025.
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To have obtained several authorities in which the Court has held it appropriate to make vexatious litigant orders, and to then deliberately misrepresent the Applicant’s litigation so as to resemble those authorities gives rise to a reasonable apprehension on the part of a fair-minded lay observer that the judge might not bring an impartial mind to the adjudication of the issues.
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The most relevant case law for this circumstance is in the area where a litigant makes unfounded and baseless allegations in an affidavit against another party. Plainly the Respondents would not and could not have made such baseless allegations in support of an application against the Applicant. Any such affidavit would be appropriately subject to removal under Federal Court Rules 2011 r2.26, r6.01 and r29.03.
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It is pernicious for Thawley J to have relieved the Respondents of the insurmountable obstacles such an application would face if they were to make it, by making baseless, contrived but clearly purposeful allegations against the Applicant.
Further implications from consideration of the new information
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One of the “misunderstandings” in Thawley J’s Judgment is the assertion that the Applicant’s litigation is related to nothing other than the Applicant's personal interest in the circumstances of being permanently suspended from duty on 4 June 1997.
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The Applicant gave one example in his original submissions where he engaged in litigation that was in the public interest, where his legal representatives were successful in test cases in the Administrative Appeals Tribunal and the Full Court of the Federal Court of Australia with Comcare Australia.
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There is substantial public interest surrounding the litigation that the Applicant has undertaken in connection with the issue Thawley J has proposed as the sole reason for all the Applicant’s litigation. Unlike the authorities Thawley J likens to the Applicant’s litigation on this issue, where vexatious litigants conduct proceedings that no legal professional would undertake:
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In the hearing of the Respondents’ strike-out application before Jagot J in the ACT Supreme Court, the Applicant was represented by Ron Clapham, Lawyer and Notary Public, with counsel Timothy Crispin,
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In the hearing of the substantive proceeding before Burns J in the ACT Supreme Court, the Applicant was again represented by Ron Clapham, Lawyer and Notary Public, with counsels Timothy Crispin and Chris McKeown, and
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In the hearing of an appeal before the Court of Appeal of the ACT Supreme Court, following the retirement of Ron Clapham, the Applicant was represented by Darryl Perkins, Solicitor, with Counsels Timothy Crispin and Julian Burnside AO QC, and
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In May 1997 the Applicant found a serious defect in the Tax Office’s production database and was working on a solution when on 4 June 1997 he was suspended from work indefinitely and was prevented from completing the repair.
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This circumstance, namely the reason for the Applicant being suspended from work – irrational fears the Applicant may perform some dastardly act undermining the Tax Office’s computer system’s security – thus ensuring the Applicant’s work on removing a catastrophic computer security failing was halted - was absurd.
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The seeming absurdity has continued unabated with Respondents together with their legal representatives and witnesses in litigation taking what amount to unwarranted risks in defying Court orders, giving false evidence, concealing material evidence, and volunteering admissions in writing to the Federal Court of Australia.
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The phrase “seeming absurdity” is used above because the extremely high-risk tactics adopted in litigation with the Applicant are only absurd if the opponents’ concern was nothing more than a questionable decision on the Applicant’s employment. Another phrase, “he who would steal an egg would steal on ox”, in this situation means the respondents are unlikely to act honestly with systems processing billions of dollars of Government revenue each year when they cannot be trusted in conduct about the employment of just one Tax Office employee.
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This is where the public interest in the present litigation comes to the fore. The Applicant has raised this in writing to the Respondents’ legal representatives on 1 February 2023, and with the Court, annexing a copy of that communication in affidavit evidence (See the Applicant’s supplementary affidavit 12 January 2024, in ACD72 of 2023):
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The Applicant was invited on 4 June 1997 to assist in an investigation to “get to the bottom” of the fears John Growder held. John Growder then arranged an investigation. The Applicant was not informed of it and was precluded from assisting in it. Handwritten notes of the meeting on 4 June 1997 show the Applicant's home phone number which was supplied when the agreement that he assist with the investigation was made. This section of the handwritten notes was omitted from the typed version of the meeting minutes that John Growder gave to the Applicant two weeks later when the investigation by an external consultant was finished.
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An investigation by an external consultant after the Applicant was suspended from duty identified a separate and equally serious security exposure in the Tax Office’s information systems, namely that 14 officers had the authority to add, delete and change access violation records,
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Geoff Best, the Director of Computer Security asked the external consultant to move this information out of his report. As a result, it was recorded in a second report.
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The ATO Personnel area did not give that second report to John Higham in 1997, and
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The affidavit of the external consultant filed in the Besanko proceedings in 2007 also omitted this second report and the facsimile in which Geoff Best asked him to create it.
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John Growder’s purpose for engaging the external consultant was to review what the Applicant was doing by examining files the Applicant had written, accessed or attempted to access.
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The documents the Applicant created while finding the serious defect identified in May, and the Applicant’s access privileges to read security reference manuals used in researching a solution, were removed prior to the external consultant commencing any investigation,
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In addition to asking the external consultant to delete information about the further serious security defect from his report, in the Burns proceeding, Geoff Best, the former Director of Computer Security, filed an affidavit as a witness for the Commissioner of Taxation.
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In this, he denied that the Applicant had found any computer security defect and
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denied that the additional access privileges he arranged to be granted to the Applicant were to assist in work to remove it. These were among the access privileges that were removed before the external consultant began an investigation into what the Applicant was doing.
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In the Besanko proceedings, John Higham, who went on after October 1997 to become responsible for the design of the ill-fated Good and Services Tax System, filed an affidavit denying that the Applicant told him that he had informed Geoff Best of a serious computer defect.
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In the Applicant’s cross-examination of John Higham in 2007, beginning with a question about paragraph 76 of his affidavit, John Higham’s lack of engagement with this serious security issue at the Australian Taxation Office is unfathomable:
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In John Higham’s affidavit filed later in the Burns proceeding, he annexed part of the transcript of the Besanko proceeding but omitted the cross-examination on 25 July 2007.
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Geoff Best, the Director of Computer Security at the Australian Taxation Office until 1999, in his affidavit of September 2011 filed in the Burns proceeding stated:
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The Applicant has preferred an innocent explanation for Geoff Best’s actions, such that they were motivated by Geoff Best’s concern for his professional reputation.
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The Applicant however concedes that Geoff Best’s actions would be identical if his motivation was to conceal involvement in serious fraud.
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Four articles, copies of which are attached, are consistent with both serious fraud and Geoff Best’s actions. The first three are also consistent with a rational explanation for John Higham’s otherwise unfathomable lack of interest in an extremely serious computer security defect that he read about in July 1997, and his ensuing responsibility from October 1997 for construction and security of the GST system:
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Crime gangs rort $5 billion in tax office refunds , Richard Baker, The Age, 25 March 2007 (Published 14 May 2008),
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‘Absolutely rampant’: How the ATO missed a $4.6b crime wave , Neil Chenoweth, Australian Financial Review, 14 August 2023,
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ATO GST scam rocks public sector as taxpayer losses hit $2 billion , TA@NEA, The Hellenic Australian Insight, 9 July 2025,
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Criminals get the drop on customs as syndicates track progress of drug shipments , Richard Baker and Nick McKenzie, Sydney Morning Herald, 29 March 2012.
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It may be a coincidence that Michael Carmody, the Commissioner of Taxation in 1997 is quoted in the fourth of these articles when he had a different role at another agency.
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A further coincidence is that Michael Carmody and Geoff Best shared the misfortune to have worked together in the two largest Commonwealth revenue-raising agencies when those agencies encountered prolonged periods of exploitation by criminal syndicates and serious fraud.
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John Higham in his affidavit of 9 March 2007 in the Besanko proceeding describes his over-arching responsibility for the Goods and Services Tax system at [11]:
“In October 1997, I became the Assistant Commissioner for Information Technology in the Tax Reform Project [the GST system]. This position involved the examination of systems issues in relation to tax reform. In 2002, I became Senior Assistant Deputy Commissioner of GST Compliance.”
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The Applicant notes that:
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The first article listed above, about crime gangs having rorted $5 billion from the GST system, was written on 25 March 2007, and for some unknown reasons was not published until 14 May 2008, and
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In the second article of a further loss of $4.6 billion from the GST system, a senior ATO figure is quoted:
“It was ‘the biggest tax revenue fraud against the community in the history of the ATO’, deputy commissioner John Ford said in a speech in May [2023]”.
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The third article on the loss of $2 billion from the GST system is evidence that defects in the GST system from the beginning still exist in 2025:
“The ATO has recovered only $160 million of the $2 billion lost—just 8% of the total—raising serious questions about systemic vulnerabilities and oversight in one of the nation’s most trusted institutions.”
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In Storry v Parkyn [2024] FCAFC 67 the Court noted that Ms Storry is an indefatigable litigant.
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Of the attributes of someone who is indefatigable, namely:
assiduous, diligent, dogged, energetic, inexhaustible, painstaking, relentless, tireless, unflagging, unwavering, and vigorous,
the Applicant concurs that he is assiduous, that is capable of hard work, care, and attention to detail, and is diligent and painstaking. He does not claim to being inexhaustible and tireless. This is reflected in the Applicant’s demonstrated unwillingness to engage in litigation and when required, a strong preference to be legally represented by solicitors and Counsels.
Notes regarding litigation in 2008 the Applicant recovered recently from backup files.
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The judgment of Thawley J at [11] copies a summary from the 2023 judgment by Wigney J that includes the following at [30]:
“Mr Dunstan filed an appeal from the judgment of Besanko J. In 2008, however, that appeal was dismissed because Mr Dunstan failed to comply with orders in respect of the prosecution of the appeal.”
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The Applicant and Respondents had completed many of the tasks required for the appeal. The reason was that the Applicant’s GP had referred him to a private eye specialist, and that specialist referred him to another eye specialist in hospital. The Applicant had adverse experiences with many Commonwealth agencies. The Applicant’s wife suggested and he went to see an eye specialist in France.
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On 11 July 2008 the Applicant requested an adjournment of the appeal set down for hearing on 7 August 2008.
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The Federal Court was both unhelpful and inflexible, recorded in an exchange of emails from 11 July 2008 to 29 July 2008 between the Applicant, the ACT Registry, and the Associate of Moore J.
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The Applicant’s final email was sent on 29 July 2008, replying to an email sent on 28 July 2008. The Applicant repeated earlier advice that he was returning to Australia on 2 August 2008 and advised he was unable to participate in a direction hearing to be held on 30 July 2008 (at 1:30am Paris time) of which the Associate of Moore J notified him in the email sent 28 July 2008.
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In response to the Applicant’s email of 29 July 2008, Moore J made orders requiring the Applicant to file and serve 5 copies of appeal books and submissions by 5 August 2008 and dismissing the appeal if the Applicant failed to comply.
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It was impossible in the two days available after the Applicant returned to Australia on 2 August 2008 to comply.
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There was no hearing of the Applicant’s application of 11 July 2008 seeking an adjournment of the appeal hearing on 7 August 2008.
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That Moore J saw it appropriate to include a “self-executing order” should the Applicant be unable to comply with the order to file the copies of the appeal books was an acknowledgment of the Applicant’s advice that it was virtually impossible for the Applicant to comply with the order.
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That the appeal did not proceed had a “silver lining” for the resources of the Court, the Applicant and the Respondents:
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The Commissioner of Taxation first gave a copy of the Higham minute of 29 July 1997, and the Orr memorandum of 15 August 1997 (on the need for John Higham to reconsider his decision) in response to a summons issued by the AAT on 30 April 2009.
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The ensuing litigation after April 2009 was unlikely to have been avoided by the Federal Court appeal, even if it had proceeded in 2008. The material evidence was not available until the following year.
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While the Respondents and Thawley J wish to blame the Applicant for the use of Court resources, all the litigation could have been concluded much earlier but for the conduct of the Respondents:
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The litigation did not end in 1998 because the respondents asked the Federal Court to set aside a subpoena dated 23 April 1998 to supply to the Federal Court:
“All records, note, documents, working papers and file(s) relating to Colin Dunstan being suspended from duty and Colin Dunstan being charged with misconduct.”
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Finn J granted the Respondents’ request and set aside the subpoena on 14 May 1998,
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The litigation did not end with the Besanko proceeding in 2007 because the Respondents:
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failed to reveal the contents of the Higham minute,
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did not reveal the existence of the Orr memorandum, and
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it remains to be seen if they created an alleged fraudulent “final report” to conceal from Besanko J the fact that Robyn Orr believed in July 1997 that John Higham decided to not charge the Applicant with misconduct.
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That this allegation of a fraudulent “final report” remains to be determined is a matter of fact and of law:
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The Respondents have not denied the allegation, and
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The Federal Court has failed to require the Respondents to file a defence and has not allowed a hearing of the evidence on the allegation.
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The judgment Dunstan v Highman [2010] ACTSC 133 by Jagot J makes clear that the failure BY THE RESPONDENTS to disclose the content of the Higham minute of 29 July 1997 in the Besanko proceeding in 2007 (not to mention in 1998) is the ONLY reason litigation was not finalised in 2008 (or in 1998).
A Note on Allegations
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The Respondents’ submissions at [2] mention the making of serious allegations. The authority on Ms Storry the Respondents’ submissions refer to at [11] requires these are “Unjustified allegations”.
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The Respondents do not specify any allegations by the Applicant or those made by his legal representatives. Statements of Claims contain allegations. If any allegations are denied, it is a question of evidence and law for a Court to decide if they are substantiated.
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For instance, the Applicant alleges in the Statement of Claim filed in the Wigney proceeding that John Higham gave evidence under oath in the Besanko proceeding that was not true.
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The evidence to justify this allegation is oral evidence that John Higham gave under oath in the Burns proceeding that the oral evidence he gave in the Besanko proceeding was not true.
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If the Respondents wanted to allege the Applicant has made “unjustified allegations” they had an obligation to specify which allegations they assert are “unjustified”, and to provide evidence to substantiate each such assertion.
12 December 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: 12 December 2025
Index to attachments referred to in oral submissions, 12 December 2025.
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