26 - 29 August 2013, 2 - 5 September 2013, 11, 24, 25 October 2013

The plaintiff is to pay the defendants' costs unless a party makes an application for some other costs order within 14 days.

CIVIL LAW - misfeasance in public office - breach of contract of employment - conspiring to injure by lawful means

CIVIL LAW AND PROCEDURE - limitation of actions - fraud and concealment

EQUITY - issue estoppels - whether non-disclosure of evidentiary material constitutes a special circumstance

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Limitation Act 1985 (ACT) s 33 (1) (b)

Australian Wool Innovation Ltd v Newkirk [2005] FCA 290

Arnold v National Westminster Bank PLC [1991] 2 AC 93

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885

Dunstan v Orr [2008] FCA 31

1. In January 1987 the plaintiff, a long time public servant, was promoted to occupy the position of Assistant Director, Database Administration Subsection, in the Australian Taxation Office (the ATO). In late 1990 he entered into an intimate relationship with another ATO employee, Ms X. That relationship broke down, and subsequently both the plaintiff and Ms X made complaints about the alleged conduct of the other in the workplace. The plaintiff was not content with the response of management of the ATO to his grievances concerning Ms X, and he commenced various proceedings against members of the ATO.

2. In or around early June 1997 the ATO became concerned that the plaintiff may have been guilty of systems violations of the ATO Production and Development mainframes. The ATO retained IBM to investigate whether the plaintiff was involved in any such system violations. On 12 June 1997 David Pasch of IBM provided the ATO with a report titled "Review of User Violations - ATO, June 1997", the main findings of which were that there was evidence that the plaintiff had engaged in systems violations which could potentially have serious consequences for the ATO.

3. On 4 June 1997 the plaintiff was suspended from duty and escorted from the workplace. On 16 June 1997 he met with management at the ATO and was handed 19 written questions to be answered within two days. On 18 June the plaintiff provided the ATO with written answers to the 19 questions. On 26 June 1997 an authorised officer (John Higham, the first defendant) was appointed pursuant to s 61 (2) of the Public Service Act 1922 (Cth) (the Public Service Act) to decide whether the plaintiff should be charged with failing to fulfil his duty as an officer of the Commonwealth Public Service.

4. On or around 29 July 1997 Mr Higham sent a National Office Minute (the Higham Minute) to another senior officer at the ATO, John Growder, the second defendant, concerning whether the plaintiff should be charged. The plaintiff alleges that this was a decision by the authorised officer not to charge him with an offence. The defendants say it was not. It is common ground that the plaintiff did not become aware of the Higham Minute until 17 May 2009.

5. On 13 October 1997 Mr Higham purported to make a decision as an authorised officer to charge the plaintiff. Another public servant was appointed to be the investigating officer tasked with investigating two charges of misconduct against the plaintiff, and on 20 October 1997 the plaintiff was notified of the decision to charge him. On that date he received a letter from Robyn Orr of the ATO, the third defendant, advising him he had been suspended without pay.

6. In December 1998, before the charges against the plaintiff had been determined, the plaintiff posted a number of explosive devices to senior officers of the ATO. On 26 April 2000 he was sentenced to a total of 11 years' imprisonment, and a non-parole period of five years was set.

7. The defendants say that on 21 May 2001 the plaintiff's employment in the Commonwealth Public Service was terminated, although I understand the plaintiff does not accept this.

8. The current proceedings were commenced on 17 May 2010. They are the latest in a series of proceedings brought by the plaintiff seeking redress for perceived wrongs done to him in the process of his suspension and charging. At the present time I will limit myself to mentioning two of those earlier proceedings which bear upon the issues in the current action: first, Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885 (the Mansfield J judgment); and secondly, Dunstan v Orr [2008] FCA 31 (the Besanko J judgment).

9. In Dunstan v Human Rights and Equal Opportunity Commission (No 2), the plaintiff unsuccessfully sought damages for defamation and misfeasance in public office by the second and fifth defendants in the current proceedings. In dismissing the plaintiff's claims in those earlier proceedings, Mansfield J made findings of fact that the defendants in these proceedings submit bind this Court (issue estoppels).

10. Subsequently, in Dunstan v Orr, the plaintiff was unsuccessful in an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of decisions made by the first, second and third defendants to the present proceedings, concerning the process surrounding his suspension and charging in 1997. In dismissing those proceedings, Besanko J also made findings of fact which the present defendants submit estops the plaintiff from reagitating those issues.

11. The above is a thumbnail sketch of the history of the plaintiff and of the matters that are the subject of these proceedings. For present purposes, and for the reasons that follow, I consider this sketch to be adequate to set the scene. A comprehensive summary of the facts may be found in the Mansfield J judgment. There was little dispute about what happened in the dealings between the plaintiff and the defendants, the real issue being the purpose or motive of the defendants in deciding to charge the plaintiff with an offence and have him suspended. The evidence adduced by both parties was wide ranging, but the task before me is ultimately one of assessing the evidence and determining whether the plaintiff has established his case to the requisite standard.

12. The plaintiff's case is that the defendants engaged in a disgraceful and unlawful campaign to have him removed from his office as a public servant. In assessing the evidence I remind myself of the well known principles laid down by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, where Dixon J said (at 361-362):

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood on an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters " reasonable satisfaction " should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

13. The first defendant, Mr John Higham was a long-term public servant who held various Senior Executive positions in the ATO in Canberra from 1986 onwards. He had a significant background in information technology. In 1997 his position was at the level of Assistant Commissioner within the ATO. Prior to June 1997 he had had only minor professional dealings with the plaintiff. On about 18 June 1997 he was asked by the second defendant, Mr John Growder to act as an authorised officer under the Public Service Act in relation to a disciplinary issue involving the plaintiff. Mr Growder held the office of First Assistant Commissioner, Information Technology Services in the ATO in 1997. He was the branch head to whom the plaintiff reported in 1997. The third defendant, Ms Robyn Orr was, in June 1997, the Acting Assistant Commissioner, Human Resource Services within the ATO. Her duties included general oversight of the Human Resources Management function of the ATO, covering activities including workforce planning, human resource development, industrial relations, occupational health and safety, performance management and other case management including rehabilitation services, employment equity and diversity and development of human resources policy and strategy. The fourth defendant, Mr Richard Highfield was, as at June 1997, a Second Commissioner of Taxation at the ATO in Canberra. Along with the Commissioner and two other Second Commissioners, Mr Highfield was responsible for executive leadership and management of the ATO. The fifth defendant, Mr Geoffrey Seymour, held the position of First Assistant Commissioner, Information Technology within the ATO in Canberra in 1997. In that position he was head of Information Technology at the ATO, and responsible for computer application development, computer system operations and all communication capabilities. He had a large number of staff under his control, both in Canberra and throughout Australia.

14. In final submissions the plaintiff made numerous criticisms of the evidence of the defendants. It would be an unproductive use of my time to set out in full those criticisms, which mainly centred around minor inconsistencies within the evidence that they gave, or between the evidence that they gave in these proceedings and that which they had given in earlier proceedings. To my mind none of the matters raised by the plaintiff raised serious concerns about the credit of the defendants. It is to be expected that after 17 years their memories will have deteriorated. Because of the importance of the evidence of Mr Higham concerning his Minute, I will deal separately with the issues raised by the plaintiff concerning that witness later in these reasons.

15. The relevant Statement of Claim is the Amended Statement of Claim lodged 26 August 2013. It pleads actions in misfeasance in public office, breach of contract, conspiracy, defamation and interference with contractual relations. I will briefly consider the way in which the plaintiff puts each of these causes of action.

16. The plaintiff's claim for misfeasance in public office is pleaded as follows:

21. At all relevant times, the first through fifth defendants (inclusive) were public officers.

22. In seeking to have the plaintiff's employment terminated outside of the scope of the Public Service Act 1922, the first through fifth defendants (inclusive) acted in bad faith.

23. In carrying out the above actions, the first through fifth defendants intended harm to the plaintiff.

24. In carrying out the above actions, by reason of the above, the first through fifth defendants abused their office.

25. By reason of the above actions, the plaintiff suffered harm.

17. The way in which the plaintiff puts this claim is set out in particulars provided on 28 September 2010:

Upon deciding not to pursue misconduct charges against the plaintiff, the authorised officer's statutory role was exhausted. The decision to "reconsider" the administrative decision not to pursue misconduct charges was ultra vires the powers conferred by the relevant provisions of the Public Service Act 1922. By attempting to procure such a "reconsideration", the first through fifth defendants sought to have the authorised officer exceed his authority and ultimately bring about the termination of the plaintiff's employment.

In taking such action, the first through fifth defendants were aware that there was insufficient evidence to suggest any deliberate misconduct by the plaintiff. The exercise was intended to bring about his removal from the public service. In so doing, the first through fifth defendants acted in bad faith.

18. The plaintiff's claim for breach of contract was pleaded thus:

26. The plaintiff was employed by contract pursuant to the Public Service Act 1922.

27. It was a condition of the employment contract that disciplinary matters be dealt with in accordance with the provisions of the Public Service Act 1922.

28. It was a condition of the employment contract that the plaintiff's employment not be suspended other than in accordance with the provisions of the Public Service Act 1922.

29. The sixth defendant breached its contract with the plaintiff.

Particulars of Breach

a) The sixth defendant commenced misconduct proceedings after issuing a contrary decision pursuant to section 61 of the Public Service Act 1922.

b) The sixth defendant failed to revoke the plaintiff's suspension upon receiving a decision not to proceed with misconduct charges as required under section 63C (3)(b) of the Public Service Act 1922.

19. In particulars provided on 28 September 2010 the plaintiff confirmed that the "contrary decision" referred to in paragraph 29 a) of his Statement of Claim was the supposed decision he identifies in the Higham Minute.

20. The conspiracy claims were pleaded as follows:

Conspiracy to Injure by Lawful Means

30. By their correspondence of 15 August 1997 and subsequent actions following 29 July 1997, the first, third, fourth and fifth defendants entered into a conspiracy.

31. The predominant purpose of this conspiracy was to terminate the plaintiff's employment and cause him harm.

32. The conspiracy was carried out and its purpose achieved.

33. By reason of the conspiracy, the plaintiff suffered loss.

Conspiracy to Injure by Unlawful Means

1. By their actions following 29 July 1997, the first, third, fourth and fifth defendants entered into a conspiracy.

35. The conspiracy required the above-named defendants to perpetrate breaches of sections 61 and 63C of the Public Service Act 1992.

36. The conspiracy also required the above-named defendants to interfere with a lawful contract between the sixth defendant and the plaintiff.

37. The predominant purpose of this conspiracy was to terminate the plaintiff's employment and cause him harm.

38. In the alternative to paragraph 36, an intention of the conspiracy was to cause the plaintiff harm.

39. The conspiracy was carried out and its purpose or intention achieved.

40. By reason of the conspiracy, the plaintiff suffered loss.

21. In particulars provided on 28 September 2010 the plaintiff identified the correspondence referred to in paragraph 30 of the Statement of Claim as correspondence exchanged between the third and fourth defendants regarding methods by which the plaintiff's employment could be terminated. The plaintiff also stated that the conspiracy commenced on 15 August 1997 and was substantially completed upon his termination, although he alleged that the testimony of the first defendant on 25 July 2007 was an act taken in furtherance of the conspiracy and ought properly to be considered a part of the conspiracy. As to paragraph 35 of his Statement of Claim, the plaintiff alleges that the defendants have breached s 61 of the Public Service Act by failing to comply with the requirements of s 61 2 (a) and purporting to bring charges pursuant to s 61 2 (b) after issuing a contrary decision. He also alleges that the defendants breached s 63C of the Public Service Act by failing to remove his suspension upon receipt of the supposed decision by the authorised officer on 29 July 1997.

22. The next cause of action pleaded by the plaintiff is that the second defendant defamed him in a meeting on 4 June 1997, and that the third and fourth defendants defamed him in correspondence dated 15 August 1997.

23. In particulars provided on 28 September 2010 the plaintiff indicated that he was unable to recall the words used by the second defendant on 4 June 1997 which he claims were defamatory, but that the imputations were that the plaintiff had improperly accessed the ATO computer system and was guilty of fraud.

24. The plaintiff also claims that the first through fifth defendants induced the sixth defendant to unlawfully breach the contract of employment between it and the plaintiff.

25. In his particulars provided on 28 September 2010 the plaintiff states that the actions of the first through fifth defendants alleged to constitute the inducement of the sixth defendant to unlawfully breach the contract of employment between it and the plaintiff are:

(a) those actions surrounding his suspension from duty in June 1997;

(b) the actions of the fifth defendant writing to the fourth defendant on 30 July 1997 seeking advice on methods by which the plaintiff's employment could be terminated;

(c) the actions of the third and fourth defendants exchanging correspondence on 15 August 1997 regarding methods by which the plaintiff's employment could be terminated;

(d) the actions of the fourth defendant on 15 August 1997 recommending that the first defendant be requested to reconsider his decision as an authorised officer not to pursue misconduct charges against the plaintiff as set out in the Minute;

(e) the actions of the fourth defendant on 15 August 1997 inviting the first defendant to participate in a fact finding mission to Europe during August and September that year; and

(f) the actions of the first defendant on 13 October 1997 to charge the plaintiff with misconduct.

I will interpolate at this point to observe that the pleading that the first defendant was "invited to participate in a fact finding mission to Europe" in 1997 is purely gratuitous. It was never suggested to Mr Highfield that there was anything sinister in his travel to Europe on ATO business late in 1997.

26. Somewhat unusually, the Amended Statement of Claim also addresses the question of the limitation period relevant to these claims. The plaintiff pleads that he was never provided with a copy of the "written decision" made by the first defendant on 29 July 1997 (referring to the Higham Minute), and did not obtain a copy of it until 17 May 2009 or shortly thereafter. He then pleads:

51. The existence and content of the written decision dated 29 July 1997 is a fact relevant to a cause of action for the purpose of section 33 (1)(b) of the Limitation Act 1998.

52. The existence of the written decision was deliberately concealed.

53. By reason of the above, the limitation period does not commence until 17 May 2009 or shortly thereafter.

27. In particulars provided on 28 September 2010 the plaintiff said that the document dated 29 July 1997 is a written decision concluding the investigation against the plaintiff, and that its existence rendered all subsequent action against the plaintiff by the defendants as outside the powers conferred upon them by the Public Service Act.

28. In their Defence the defendants deny that they are liable to the plaintiff with regard to any of the pleaded causes of action. They deny that the existence of the Higham Minute was concealed from the plaintiff, claiming that it was disclosed in a schedule of documents filed in the Federal Court in March 2007, and over which privilege was claimed. The defendants also plead that findings of fact concerning the allegations made by the plaintiff in these proceedings were made by Besanko J and Mansfield J in earlier proceedings, and that the plaintiff was estopped from re-agitating the same questions of fact. Finally, they plead that each of the causes of action are not maintainable by virtue of the provision of the Limitation Act 1985 (ACT) (the Limitation Act).

29. In a Reply to Defence, the plaintiff says that the Besanko and Mansfield JJ judgments were made in ignorance of the nature and content of the Higham Minute, which could not have been ascertained by the plaintiff through reasonable diligence. The plaintiff says that the unavailability of the Higham Minute constitutes special circumstances as referred to in Arnold v National Westminster Bank PLC [1991] 2 AC 93, so that no issue estoppels arise.

Limitation Act 1985 (ACT)

30. As the plaintiff himself concedes, on the face of it each of his causes of action is statute barred. The events the subject of these proceedings all occurred in 1997. The limitation period in respect of a cause of action in defamation is one year from the date of publication of the matter complained of. The remaining causes of action were not brought within the required period of six years running from the date when each of those causes of action first accrued to the plaintiff. It is clear that the plaintiff was aware of this difficulty because he sought to address it in the Statement of Claim itself, rather than in a Reply after the provisions of the Limitation Act had been pleaded as a defence. To meet this difficulty, the plaintiff relies upon the provisions of s 33 (1) (b) of the Limitation Act, which provide:

(a) there is a cause of action based on fraud or deceit; or

(b) a fact relevant to a cause of action or the identity of a person against whom a cause of action lies is deliberately concealed;

the time that elapses after a limitation period fixed by or under this Act for the cause of action begins to run before the date when a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the cause of action by him or her or by a person claiming through him or her against a person answerable for the fraud, deceit or concealment.

(2) Subsection (1) has effect whether the limitation period for the cause of action would, apart from this section, end before or after the date mentioned in that subsection.

(3) Without limiting subsection (1), deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

(4) For subsection (1), a person is answerable for fraud, deceit or concealment if, but only if -

(a) he or she is a party to the fraud, deceit or concealment; or

(b) he or she is, in relation to the cause of action, a successor of a party to the fraud, deceit or concealment under a devolution from the party occurring after the date when the fraud, deceit or concealment first occurs.

31. The status of the Higham Minute is crucial to the plaintiff's case. In paragraph 14 of his Statement of Claim the plaintiff alleges that, in the Higham Minute, the first defendant elected not to pursue disciplinary action against the plaintiff and recommended his return to work. It is accepted by the defendants that the plaintiff was not provided with a copy of the Higham Minute at the time it was written, but they reject the claim that the Higham Minute constituted a final decision by the first defendant not to charge the plaintiff.

32. The case as pleaded by the plaintiff is that there is a postponement of the bar provided by the Limitation Act by virtue of s 33 because the defendants concealed a fact relevant to the now pleaded causes of action, being the existence of and content of the Higham Minute. 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, such as the fact that the authorised officer had expressed a view to his superiors, and that he had then received unsolicited legal advice (concerning which I will speak below). The plaintiff should not be allowed to change his position in this way. It is abundantly clear from the plaintiff's pleadings, including particulars, that his case is based upon the proposition that the material fact which was concealed was the existence of and content of the Higham Minute. This was reinforced by the plaintiff's opening, where his counsel said:

"On 17 May 2009 the plaintiff sees the 29 July decision for the first time. It was produced along with a box of documents ordered to be produced in the AAT. The plaintiff commenced his proceedings on 17 May 2010. The plaintiff will argue that s 33 of the Limitation Act permits him to bring these proceedings, given a wrongful withholding of this document".

It would be unjust on the defendants for the plaintiff to be permitted, after all of the evidence has been taken, to expand the basis upon which he asserts s 33 operates so as to postpone the statutory bar.

The National Office Minute of 29 July 1997 (the Higham Minute)

33. As noted above, on 26 June 1997 Mr John Higham was appointed an authorised officer pursuant to s 61 (2) of the Public Service Act to decide whether the plaintiff should be charged with failing to fulfil his duty as an officer of the Public Service. The relevant provisions of the Public Service Act as at June 1997 are:

(2) Where an officer authorized [sic] by the relevant Secretary for the purposes of this subsection is of the opinion that an officer may have failed to fulfil his duty as an officer, the authorized [sic] officer shall, as soon as practicable, decide whether he should be charged and:

(a) if he decides that the officer should not be charged - may counsel the officer or cause a supervisor of the officer to counsel the officer; or

(b) if he decides that the officer should be charged - shall, by writing under his hand delivered to the officer, charge the officer with the failure.

(3) An officer charged under subsection (2) may request the relevant Secretary to furnish copies of the charge to either or both of the following, that is to say:

(a) to an organisation specified by the officer, being an organisation within the meaning of the Workplace Relations Act 1996; or

(b) to a person specified by the officer, being a person whom the officer wishes to assist him in relation to the charge;

and, if the officer makes such a request, the relevant Secretary shall comply with the request.

34. After conducting investigations Mr Higham initially concluded that charges should be laid against the plaintiff. He prepared a draft report recommending that charges be brought . He subsequently sought advice from an officer of the Australian Government Solicitors Office (Mr Tony Burslem). On 29 July 1997 he then wrote the National Office Minute which is central to the plaintiff's case. His Minute reads:

SUBJECT: Disciplinary Matter

PURPOSE: Outcome Of Authorised Officer Process

I recently agreed to be the Authorised Officer in the matter of the suspension of Colin Dunstan.

In progressing this role I produced a draft report which is attached. At the stage of producing this report I had come to the conclusion that a charge was warranted. I then discussed the draft report with Tony Burslem of the Australian Government Solicitors Office.

Mr Burslem has provided a report from a legal perspective which indicates that I have insufficient information to demonstrate Mr Dunstans [sic] motivation and what was in his mind in attempting to access files he was not authorised for. Mr Burslem concludes that he does not believe "it is legally open to me to conclude the Mr Dunstan may have failed to fulfil his duty as an officer".

I therefore do not propose to charge Mr Dunstan.

As a result it will be necessary to recall Mr Dunstan to duty.

I believe it will be necessary to councel [sic] Mr Dunstan in relation to his attempted accesses and may require him to be put on notice with respect to any further attempts which are not advised to his supervisor.

I would ensure that Mr Dunstan is specifically briefed with the material "Your Password, Your Access, YOUR Responsibility".

35. It is this Minute that the plaintiff alleges constituted a final decision by Mr Higham not to charge him.

36. Officers within the ATO thought that the advice given by Mr Burslem was wrong. One of the officers of the ATO, Mr John Molineux, who held the office of Senior Consultant, Human Resources within the ATO in 1997, sought urgent advice from a barrister, Mr Murray McInnis, who provided a written advice that the advice given by Mr Burslem was wrong, and that there was sufficient prima facie evidence of misconduct against the plaintiff to support a charge (the McInnis advice). Subsequently, Mr Higham recommended that charges be laid against the plaintiff.

37. It is the plaintiff's case that the Higham Minute constituted a decision by the authorised officer, Mr Higham, not to charge him, thus concluding the function of the authorised officer under s 61 (2) of the Public Service Act. It is the plaintiff's contention that the subsequent decision of Mr Higham to charge him was invalid. It is the defendants' contention, supported by the evidence of Mr Higham, that the Higham Minute was not a final decision, but was in the nature of an indication of what the final decision was likely to be, based upon the legal advice of Mr Burslem, so as to allow those responsible for supervising the plaintiff to make arrangements for his return to the workplace.

38. Mr Higham swore an affidavit dated 11 September 2011 in these proceedings. The relevant portions of that affidavit read:

9. On 29 July 1997 I received written advice from Mr Tony Burslem, a solicitor in the employ of the Australian Government Solicitor, to the effect that I had "insufficient information to demonstrate Mr Dunstan's motivation and what was in his mind in attempting to access files he was not authorised for". Mr Burslem stated in his advice that he did not believe it was open to me to legally conclude that Mr Dunstan may have failed to fulfil his duty as an officer (AGS advice).

10. I was somewhat disturbed and puzzled by the AGS advice. I thought it might not be correct because:

(a) If it was right, I could not understand how the ATO could ever legally prove Mr Dunstan's "motivation and what was in his mind in attempting to access files he was not authorised for" (see third paragraph of my Minute);

(b) There was no mention of the need to determine mental state or motive in the advice I had received from Mr Whyte ... about my role in the disciplinary process;

(c) There was no mention of the need to determine mental state or motive in the Public Service Commissions publication entitled "Personnel Management Guideline Discipline Rights and Responsibilities"...;

(d) I thought that the AGS Advice was inconsistent with the word "may" in section 61 (2) of the Public Service Act 1922 (Cth), which I understood permitted me to charge Mr Dunstan if I thought he "may have failed to fulfil his duty as an officer" without me having to decide or determine whether he had done so. I understood that later task was a function of an inquiry officer appointed under s 62 (1) of that Act;

(e) The AGS Advice would make it very difficult to charge anyone with any offence; and

(f) If the AGS Advice was right, then it seemed that there would not be any need for the inquiry officer's role - it may as well be a "one step" process.

11. Despite my concerns about the correctness of the AGS Advice, I felt obliged to accept the advice, and so I wrote my Minute, which is Annexure AE to Mr Dunstan's Affidavit. I also intended to review the material I held to see if I could address the issues raised by Mr Burslem in his advice.

12. The version of my Minute that is at Annexure AE to Mr Dunstan's Affidavit omits my draft report dated 11 July 1997..., which was an attachment to my Minute.

1. In my Minute, I recounted the effect of the AGS Advice and stated "I therefore do not propose to charge Mr Dunstan." When I sent this Minute to Mr Growder (copied to Mr Whyte), I had not made a decision not to charge Mr Dunstan. I was expressing my intention at the time, because of the legal advice I had received. I also expressed my opinion at the time, because of the advice, about the steps that I thought should be taken particularly in response to Mr Dunstan's attempt unauthorised access to the ATO's computer mainframe, or "systems violations" ....

14. To the best of my recollection, I did not have any conversation with Mr Growder or Mr Whyte about the content of the AGS Advice or my Minute. I did not receive a response from either of them or from anyone else to my Minute.

15. I kept my papers concerning Mr Dunstan for the purpose of seeing if I could address the issues in the AGS Advice, and because I thought I may receive a reply to my Minute.

16. A day or two before leaving Australia, I received a copy of the legal advice from Mr Murray McInnis of counsel (McInnis Advice)... it read, among other things:

(I) In my opinion there is sufficient material to justify a charge of misconduct as an officer... At this stage there is sufficient prima facie evidence of misconduct and the charges should therefore be prepared... I disagree with the conclusion of the Australian Government Solicitor in its letter dated 29 July 1997 that it would be necessary to obtain further information as to Mr Dunstan's state of mind before bringing the charge.

17. I cannot recall who sent me the McInnis Advice.

18. For the reasons given in paragraph 10 above, I preferred the McInnis Advice (rather than the AGS Advice) that it was not necessary for me as an authorised officer to have evidence about Mr Dunstan's state of mind or motivation in relation to his own authorised attempts to access the ATO's computer mainframe. The McInnis Advice also supported my view that there was sufficient evidence to lay a charge of misconduct against Mr Dunstan, as I had expressed in my draft report dated 11 July 1997.

19. I had no further input from anyone concerning any disciplinary action that might be brought against Mr Dunstan until I finalised my report as set out in paragraphs 22 and 24 below.

20. I did not have an opportunity to progress the matter before I went overseas on 25 August 1997. I took my papers overseas for this purpose. Whilst overseas, I thought further about Mr Dunstan's conduct and my role as authorised officer and was still of the opinion that it was appropriate to charge Mr Dunstan. I held this opinion because of the seriousness of what he had done and the word "may" in s 61 (2) of the Public Service Act 1922 (Cth). Having read the McInnis Advice, I also now understood that it was legally permissible for me to do so.

21. After returning to Australia, I finalised my report concerning the allegations against Mr Dunstan, stating my conclusion that there were sufficient grounds to support a charge that misconduct may have been committed.

22. I saw no reason to contact Mr Dunstan again because I understood that Mr Dunstan had already provided all the information he wished me to consider and did not want to meet with me, as stated in paragraph 74 of my ACD 77 Affidavit. With reliance on the McInnis Advice, and having reconsidered all the information I had about the conduct I had investigated, I saw no reason to change anything in my draft report, except for deleting the word "DRAFT" at the beginning and the date "11 July 1997" at the end. I also omitted my name at the end of the report, but cannot now recall why I did so. I discussed my intentions concerning finalisation of my report with Mr Ted Miller, as set out in paragraph 85 of my ACD 77 Affidavit, and also Mr Whyte, who both agreed that no changes were necessary.

23. A copy of my final report is Annexure H to my ACD 77 Affidavit (Final Report).

24. Mr Miller or Mr Whyte helped me to draft two charges that I thought captured the substance of the misconduct that I thought Mr Dunstan may have committed. On 13 October 1997, I signed two charges, Charge A and Charge B, together with the Notices of Charge A and B, and dated each of the documents 13 October 1997. I arranged for Mr Miller or Mr Whyte to send the signed Charges and Notices of Charge to Mr Dunstan by registered mail.

39. The evidence of Mr Higham was criticised by the plaintiff on numerous grounds.

40. First, he was criticised because in his affidavit in these proceedings sworn on 11 September 2011 he "makes no mention" of the Higham Minute, "despite its obvious critical importance to this case". This assertion is incorrect. At paragraph 8 of his affidavit Mr Higham directly refers to the Minute. He then refers to the circumstances that led up to him drafting his Minute, before referring to it again in paragraphs 11, 12, 13 and 15 of his affidavit. This attack upon the credibility of Mr Higham is without foundation.

41. Secondly, the plaintiff criticises Mr Higham for only annexing to his affidavit a transcript of his evidence in chief in the proceedings before Besanko J, but not his cross-examination. It is entirely unclear to me how this reflects upon Mr Higham's credibility. The plaintiff was clearly aware of the existence, and the content, of that cross-examination, so it can hardly be suggested that his failure to include the transcript of his cross-examination in the exhibit to his affidavit was an attempt to conceal its existence. In any event, for the reasons given below, I am satisfied that there is no material inconsistency between the evidence of Mr Higham in these proceedings, and the evidence he gave during cross-examination in the proceedings before Besanko J.

42. The third criticism made of Mr Higham concerns the evidence he gave in these proceedings concerning the evidence he gave before Besanko J. Effectively, it was suggested that Mr Higham had attempted to mislead Besanko J about the existence of the Minute. In order to understand this criticism of Mr Higham, it is necessary to refer to his evidence before Besanko J and before me.

43. In cross-examination before Besanko J, Mr Higham was extensively questioned by the plaintiff (who was not represented by lawyers in those proceedings) about a variety of issues. The cross-examination was, with respect, confused and confusing. In the proceedings before Besanko J the then defendants, who included Mr Higham, had provided an affidavit of documents in which, as I understand it, the Higham Minute was labelled as 'document 44'. As the Minute contained a summary of legal advice provided by Mr Burslem, a claim for privilege was maintained over it. In the course of cross-examination, the plaintiff questioned Mr Higham about that document, but in doing so the Minute was not placed before Mr Higham. Mr Higham was simply questioned based on the description of the numbered document set out in the affidavit of documents. In that context the following exchange occurred:

Mr Dunstan: Now if you could turn to page 4, it's got 4 at the top, the centre of the page. If you look at - I'm sorry, do you have page 4?---Yes.

There's a document number 43 there?---Yes.

That's a letter, isn't it, dated 29 July 1997 addressed to you from the Government Solicitor?---Yes.

If you look at document 44, that's a document that you've prepared in relation to these disciplinary procedures, isn't it?---Sorry, what was that?

That is a document you prepared, isn't it, and the document was dated 29 July 1997? That's a description of a document you prepared?---Yes, I can't - I don't recall that.

I'm sorry your Honour. I'm disorganised.

If you look back at document 43, the letter addressed to you by the Australian Government Solicitor of 29 July 1997, that contains advice that you cannot lay a charge against me without evidence of my state of mind, doesn't it?---It could do.

In fact, if you look at Mr Pasch's report that you have, a piece that you didn't quote in your affidavit but which is annexed to it, at the top of folio 14, it reads:

There is not any evidence to indicate malicious or fraudulent intent by the user

Doesn't it?---Sorry, that's folio 14?

Yes?---Sorry, are you in Mr Pasch's - - -

HIS HONOUR: Mr Dunstan, what page are you referring to?

MR DUNSTAN: I'm sorry.

It's folio 14 of your affidavit.

HIS HONOUR? Folio?---No, that's - - -

That's part of the affidavit. Are you referring to part of Mr Pasch's report?

MR DUNSTAN: Sorry, yes.

HIS HONOUR: All right. Now, what part of Mr Pasch's report?

MR DUNSTAN: I'm sorry, your Honour. It's page 4 of Mr Pasch's report.

HIS HONOUR: Yes, right at the top of the page?---The first paragraph?

Yes.

MR DUNSTAN: He states there:

There is not any evidence to indicate malicious or fraudulent intent by the user.

Do you see that?---Yes.

In the terms that are in Mr Pasch's affidavit, which is at folio 16, if you have that. Maybe not. I will read it to you. This is the draft terms of reference of Mr Growder dated 10 June '97. Under the heading Purpose of Assignment under point 2, it says:

The ATO is concerned about the intent behind these actions.

So Mr Pasch is being engaged to analyse the intent behind the actions. He has provided evidence saying:

There is not any evidence to indicate malicious or fraudulent intent by the user.

The[n] on 29 July you get advice from the government solicitor saying that you cannot lay a charge without any evidence of my mental state at the time. I guess what I'm trying to understand is why you were unable to make a decision at that point?---Why I wasn't?

Yes. You have on one hand a terms of reference for your external - - -

HIS HONOUR: Well, you put them to him; the terms of reference, Mr Pasch's statement, advice from the government solicitor. Now, you're putting to him, are you, why he made the decision he did?

MR DUNSTAN: No, why he didn't make a decision at that point to follow the advice that he received on 29 July.

HIS HONOUR: Which would have resulted in what? No charge being laid?

MR DUNSTAN: Yes, that was the advice from the government solicitor.

HIS HONOUR: That's bring put to you, Mr Higham. Do you understand the question?---Yes.

All right. Can you answer it?---Yes. It was purely a matter that I was still reviewing these papers and preparing to go overseas. As I said before, I was taking the opportunity to review those papers with the view to finalising this on my return.

MR DUNSTAN: That was deleting the word "draft" and the name and date from the report, you mean?---Well, as it turned out, I had prepared a - well, as we saw earlier, I had prepared a draft report. I used the time when we were travelling overseas, as I said, to review all of that, and before finalising that, as I also mentioned in relation to discussing with Ted Miller, was reviewing the things that I had covered, and in particular the content that a report would have to have. Now, I already had a draft report put together, as we've seen, and I discussed that draft with him, and I was verifying with him whether it was a suitable document as a report and covered the matters that were to be covered.

I see. I was wondering if Mr Higham could be shown document 49, your Honour?

HIS HONOUR: Document 49 of?

MR DUNSTAN: Of annexure D of exhibit 8.

HIS HONOUR: All right. I will have the list of documents brought back.

MR DUNSTAN: Document 49 is the very last document, so at the end of annexure D of exhibit 8.

HIS HONOUR: Is this Mr Seymour's - - -

MR DUNSTAN: That's correct. A memorandum of - - -

HIS HONOUR: Yes?

MR DUNSTAN: This is a memorandum of Mr Seymour dated 30 July [1997] .

HIS HONOUR: Do you want him to read that?

MR DUNSTAN: No, no, sorry.

Now, we looked previously at document number 49, which was a national office minute from you to John Growder and John Whyte containing the advice from the government solicitor which says that you can't lay charges against in the in absence of evidence of my mental state. The day after that, Mr Seymour signs a memorandum. If you look at the very last paragraph, you will see the first statement there says:

Mr Dunstan must immediately return to work from suspension.

HIS HONOUR: Yes. Now, what's the question you want to put to him?

MR DUNSTAN: I put it to you that the decision you had made and conveyed quite clearly in the document dated 29 July 1997 that you can't remember at the moment was the one that expressed what the correct decision was that you understood had to be made on that date?---No, I never prepared a document of that sort.

Sorry? You now remember the type of document that you wrote on the 29th of - - -?---No. I'm just saying I never prepared a document saying what you said.

Previously I thought you had trouble recalling what this document written on 29 July 1997 was. Are you now able to clarify what that document is?---No. I'm just saying I never - - -

HIS HONOUR: He has already said he can recall what it isn't?---That's right.

So I don't think it would be fair to suggest that there was now an inconsistency, Mr Dunstan?---The only document I prepared was the one that you mentioned had "draft" at the top.

MR DUNSTAN: Sorry? Are you saying that document number 44 on this list doesn't exist?---No. I don't know - - -

Sorry. I just thought you said that only the document dated 11 July 1997 existed?---Yes. I don't recall preparing another document, but I certainly didn't prepare a document saying what you said before.

Do you deny preparing a document that's described in the list dated the - document number 44, the document dated 29 July 1997, that's described as national office minute from John Higham to John Growder and John Whyte, both of the ATO, which contains advice from Tony Burslem of the Australian Government Solicitor and attaches a draft report by John Higham of the ATO?---I think I - sorry. I may have referred a copy of the document from the attorney-general, or was it the solicitor general.

The Australian Government Solicitor?---Australian Government Solicitor.

HIS HONOUR: I don't think Mr Higham had the list of documents before him. That might just help.

MR DUNSTAN: Thank you, your Honour.

HIS HONOUR: I think the document Mr Dunstan was referring to is document number 44. You don't actually have the document. What you have is a description of the document?---Yes.

Yes. Now do you have a question, Mr Dunstan?

MR DUNSTAN: The question did he deny - do you deny that that document exists?---I don't know what the document would be. I don't have a recollection of it.

HIS HONOUR: I just want to get one thing clear. We are talking about the document which is number 44 or the reference to some report you prepared?---Well, I do recall because a report from Tony Burslem I think came to me, I think I forwarded that on to John Growder and John Whyte.

I see?---I recall that, but I don't recall another document.

All right.

44. Mr Higham was cross-examined in these proceedings about the evidence he gave before Besanko J. He confirmed that he wrote the Minute because he was concerned about the legal advice he had received from Mr Burslem, and that he felt Mr Whyte and Mr Growder should know the nature of the advice. He denied that in writing the Minute he had attempted to bring Mr Growder and Mr Whyte into his function as an authorised officer. As Mr Higham said, "I thought it would be important to [Mr Growder] as the person responsible for IT services group to know that, in this disciplinary matter, I had received advice that said I couldn't legally charge Mr Dunstan". He agreed that when he wrote the Minute he had "some expectation" that Mr Growder or Mr Whyte may respond, but he had no expectation as to what the nature of any response might be.

45. The cross-examination of Mr Higham to the effect that he had expected some form of response from Mr Gowder or Mr Whyte to the Minute sits awkwardly with the plaintiff's case that the Minute constituted a final decision by Mr Higham not to lay charges against the plaintiff. If the Minute was intended to provoke a response from Mr Growder or Mr Whyte which would have some effect on the charging process, it could hardly be couched in terms of a final determination. What is more, if it was intended to be part of a conspiracy between Mr Higham, Mr Whyte and Mr Growder, the object of which was to ensure that the plaintiff was removed from the ATO or the Public Service, why would Mr Higham commit it to writing? A simple telephone call or personal meeting would have been much more effective, and would have left no trail.

46. Mr Higham testified that, in writing the Minute, he had not intended to convey that, based on the advice of Mr Burslem, he did not at that point in time intend to lay charges against Mr Dunstan; rather, he intended to convey that he had not yet made a final decision. He intended to look at Mr Burslem's advice in detail, and determine whether there was anything he could do to address the issues raised in the advice.

47. In cross-examination Mr Higham agreed that the heading of the Minute, "Outcome Of Authorised Officer Process", had connotations of finality to it, but said it was intended in the sense of achieving an outcome to the process. He denied the Minute was the final outcome of the process. He said that he used the word "propose" in the Minute to indicate something to happen in the future, and that if he had finalised the matter at that time he would have provided a final report setting out, in terms, his decision not to charge the plaintiff. He would also not have attached the draft report recommending the plaintiff be charged.

48. In the proceedings before me, Mr Higham was cross-examined on issues concerning his evidence in cross-examination before Besanko J. Mr Higham was taken to the excerpt of his evidence before Besanko J set out at [30] above, and the following exchange occurred:

MR McKEOWN: You were attempting, sir, to deny that you'd made a decision that was favourable to Mr Dunstan in charges not being laid?---Yes.

And when you were giving your evidence you remembered the document that you'd done on 29 July '97, hadn't you?---Not in detail, no. But it was - the key point in my mind was that I hadn't provided a document that was a final decision. And that's what this is attempting to say.

Yes, so on 25 July 2007 you were wanting to indicate that the document wasn't a final decision?---Yes, that's right.

49. In his written submissions the plaintiff submits that, in his evidence before Besanko J, Mr Higham was attempting to conceal the true nature of his Minute by pretending to have no recollection of its contents. This suggestion is absurd. The Higham Minute only assumes any importance if you start from the position it was intended to be a final determination. If, as Mr Higham asserts, it was not a final determination, but simply an indication to the plaintiff's superiors of the legal advice Mr Higham had received and the likely consequence of that advice, then there is no reason why, 10 years later, Mr Higham would have a recollection of that document. That is particularly so where the advice referred to in the Minute was quickly superseded by different advice.

50. The language of the Higham Minute is equivocal. It may be read as indicating a final determination by Mr Higham, but there are circumstances that suggest otherwise. As Mr Higham said in his evidence, why would he attach to the Minute the draft decision recommending charges against the plaintiff if it was a final decision not to charge him? I would also have expected, as Mr Higham testified, a final determination to have set out his findings , and his reasons, at greater length than is found in the Minute. It is easy, with the benefit of hindsight, to be critical of the language used by Mr Higham in his Minute, but Mr Higham was not to know in July 1997 of the events that would transpire so as to give the Minute its present importance. The Minute was written immediately upon his receipt of advice from Mr Burslem, which not only explains its brevity but is in itself suggestive that it was not intended to be a final determination. It is understandable that Mr Higham would want to consider the advice given by Mr Burslem, particularly where that advice seemed to be illogical. It would, indeed, be strange if Mr Higham had not wanted to give consideration to the effects of the advice, and whether there was anything further that could be done to meet Mr Burslem's contentions, before finally determining whether to charge the plaintiff. As it transpired, Mr Burslem's advice was incorrect and those matters in the Burslem advice that had troubled Mr Higham were addressed in the subsequent advice of Mr McInnis.

51. I am satisfied that the Higham Minute was not intended by Mr Higham to be a final determination not to charge the plaintiff. I accept the evidence of Mr Higham on this issue.

52. After Mr John Molineux became aware of the Burslem advice, he arranged for further advice from a barrister, Mr McInnes. Mr McInnes concluded that the advice given by Mr Burslem was wrong, and opined that charges could be laid against Mr Dunstan. The plaintiff complained that the unsolicited provision of this second legal advice to Mr Higham was an interference with the "authorised officer" process laid down in s 61 of the Public Service Act. This submission is little more than cynical nonsense. What should senior public servants do if they are advised by an authorised officer of the content of legal advice the authorised officer has received, and they believe that advice is wrong? Should they simply ignore the situation, and let the whole process under s 61 go awry? One only has to state the proposition to reject it. It may readily be accepted that an authorised officer must make the decision whether or not to lay charges independently, but that does not mean that he or she may not obtain advice, and even be given unsolicited advice. What s 61 requires is that the ultimate decision to charge or not to charge be made independently by the authorised officer, in the sense that the authorised officer does not act under direction or is not subject to duress, intimidation or inducement. It can hardly be an improper inference with the functions of an authorised officer to ensure that he or she acts on correct legal advice. I am satisfied that the sourcing of the McInnis advice by Mr Molineux was perfectly proper, as was the provision of the advice to Mr Higham. I am further satisfied that Mr Higham then independently and properly made a decision that charges should be laid against the plaintiff.

53. I will now consider each of the causes of action pleaded by the plaintiff.

54. The plaintiff's claim under misfeasance in public office is that the first through fifth defendants sought to have his employment terminated outside the scope of the Public Service Act. As a question of fact, I am satisfied that this was not the case. I am satisfied that there were legitimate concerns within the ATO in 1997 that the plaintiff may have attempted to engage in unauthorised access to the ATO's mainframe. These concerns were supported by the independent investigation by Mr Pasch of IBM. These concerns clearly warranted investigation. An authorised officer, Mr Higham, was appointed under s 61 of the Public Service Act to investigate and to determine if charges should be laid against the plaintiff. The plaintiff was suspended from duty pending the outcome of this process. This process was never completed, perhaps because events overtook it and in December 1997 the plaintiff's position was declared excess under the Public Service Act, with the consequence that he was offered a choice between a redundancy package or, if he was unable to be redeployed within the public service, retirement under s 76W of that Act.

55. Further, this cause of action is statute barred. The finding that the Higham Minute was not a final decision not to charge the plaintiff means that the existence of the Minute and its contents were not relevant to any cause of action available to the plaintiff alleging misfeasance in public office. As such, the alleged concealment of the Minute does not come within the scope of s 33 (1) (b) of the Limitation Act, and the limitation period should not be taken to run from the date the plaintiff became aware of the existence of the Minute. On this basis, the six year limitation period has clearly expired.

56. Further again, I am satisfied as a question of fact that the defendants did not attempt to have the plaintiff's employment terminated outside of the scope of the Public Service Act, and did not act in bad faith in their dealings with the plaintiff.

58. This cause of action as pleaded by the plaintiff depends upon a finding that the Minute was a final decision pursuant to s 61 of the Public Service Act. I have found that was not the case. As such, not only can this cause of action not succeed on the facts, it is also statute barred for the reasons set out above. This cause of action must also fail.

59. In his written submissions the plaintiff accepts that the elements of an action in conspiracy are as set out by Healy J in Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 (at 60-61):

Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. Historically there are two kinds of conspiracy, the elements of which are distinct:

(1) an "unlawful means" conspiracy in which the participants combined together to perform acts which are themselves unlawful; and

(2) a combination to perform acts which, although not themselves unlawful, are done with the sole or predominant purpose of injuring the claimant...

Bullen & Leake identifies the necessary elements in an action in conspiracy at [50 - 01.1]:

the claimant must plead and prove the following necessary elements:

(i) a combination or agreement between two or more individuals (required for both types of conspiracy);

(ii) an intent to injure (required for both types of conspiracy but must be shown as the sole or predominant purpose for type (2) above);

(iii) pursuant to which combination or agreement and with that intention certain acts were carried out;

(iv) resulting loss and damage to the claimant.

[citations omitted]

60. The plaintiff's causes of action in conspiracy are brought with reliance on a minute dated 15 August 1997 from Ms Robyn Orr to Second Commissioner Mr Richard Highfield (the Orr Minute), as is made clear by the particulars provided by the plaintiff which allege that the conspiracy commenced on 15 August 1997.

61. It is necessary to refer briefly to some of the evidence in order to understand the plaintiff's claims. On 30 July 1997 Mr Geoffrey Seymour wrote a Minute to Second Commissioner Highfield concerning the plaintiff's employment (the Seymour Minute). Mr Seymour noted in that minute that he was referring the issues concerning the plaintiff's employment to Mr Highfield, rather than dealing with them as part of normal management processes, because the plaintiff had legal actions against a number of ATO staff including himself which he did not wish to complicate. The Seymour Minute provides a background, as Mr Seymour saw it, to the events leading up to the date of the Seymour Minute. The Seymour Minute sets out Mr Seymour's belief that the plaintiff had, despite ample opportunity, failed to demonstrate that he could successfully become a productive member of IT Services Group, noting that former colleagues of the plaintiff would no longer work with him, and that he was not an effective contributor to the work of his section and could not be assigned normal work at his level. He also noted that as a result of work and job design his position was potentially excess. Mr Seymour also noted that he no longer trusted the plaintiff. In writing the Minute Mr Seymour was clearly of the view that the plaintiff would return to work, and set out the options for dealing with the plaintiff accordingly. These included options that the plaintiff be offered a redundancy package or that he be declared potentially excess.

62. The Orr Minute sets out the options available to the ATO in dealing with the plaintiff. These options included:

(a) that the plaintiff returned to work and continue on his previous assignment: Ms Orr commented that there was little prospect of this working successfully;

(b) that the plaintiff returned to work and move to another business services unit: Ms Orr commented that this option had a better chance of success than the first option;

(c) that the plaintiff's employment be terminated: Ms Orr commented that it was unlikely that the plaintiff would resign, and that other options for terminating his employment did not appear to be currently viable;

(d) that the plaintiff accept a voluntary redundancy, or be made redundant involuntarily: Ms Orr commented that if the ATO proceeded down this path it was better to take an "upfront" approach, informing the plaintiff of the fact that he was in an excess staff situation, and to allow him to make a decision about accepting a voluntary redundancy in full knowledge of the options open to him and the steps to be taken.

63. Mr Orr's minute concluded by making the following recommendations:

(e) that the plaintiff's position be declared excess and he be advised of his rights, including voluntary redundancy;

(f) that the ATO continue with the disciplinary proceedings that had been commenced. Ms Orr went on to say: "This would involve the Authorised Officer reconsidering his options having regard to the new legal advice which is expected shortly";

(g) that the plaintiff not be allowed access to the computer system until a decision could be made regarding his situation once the outcome of the disciplinary proceedings was known, and that, if necessary, the assistance of other areas in the ATO be sought in finding suitable work for the plaintiff;

(h) that if the plaintiff ultimately returned to work a number of specified steps be taken concerning his supervision.

64. There is nothing extraordinary in this correspondence. There is no evidence to suggest that this discussion about potential means of dealing with the issues created by the plaintiff in the workplace was contrary to law or the practices of the Public Service. Only the most jaundiced eye could see in this correspondence evidence of a conspiracy against the plaintiff. Whatever may have been the rights or wrongs of the plaintiff's complaints about his workplace or his colleagues, it was indisputable that his actions had consequences within the section in which he was working, and that management had to deal with those issues.

65. The plaintiff does not suggest that the Orr Minute of 15 August 1997 was concealed from him. The plaintiff's claim is statute barred. In addition, I am satisfied that the actions the plaintiff complains of were part of legitimate management discussions within the ATO, and were not part of a conspiracy to harm him. The plaintiff's causes of action in conspiracy fail.

66. On 4 June 1997 the plaintiff met with Mr Growder and Ms Orr, during the course of which meeting the plaintiff alleges Mr Growder accused the plaintiff of having attempted to procure improper access to ATO computer systems. The plaintiff further alleges that on the basis of this accusation, Ms Orr suspended the plaintiff from active duty pending investigation.

67. I agree with the submissions of the defendants that the plaintiff's claim in defamation arising from what was said in the course of the meeting with him on 4 June 1997, or what was written in the Orr Minute of 15 August 1997 must fail for two reasons. Firstly, the claims are statute barred. Secondly, the statements about which the plaintiff complains were made on an occasion of qualified privilege. I reject the submission made by the plaintiff that the defendants were motivated by malice in making these statements.

68. There is no material difference between this cause of action and the plaintiff's cause of action for breach of contract. For the reasons I have given with respect to the plaintiff's claim in breach of contract, this claim must also fail.

69. Before concluding, there are two matters raised by the plaintiff in his written submissions which I should address. First, the plaintiff submitted that his evidence should be accepted as it had not been adequately challenged in cross-examination: Browne v Dunn (1893) 6 R 67. There is no merit in this submission. As the plaintiff acknowledges, the rule in Browne v Dunn is a rule of fairness, designed to ensure that a witness has their attention drawn to some aspect of their evidence which is to be disputed by the cross examiner so as to allow the witness an opportunity to respond. In this case, bearing in mind the history of litigation between the parties and the fact that evidence in chief was by way of affidavit, the plaintiff could have been under no misapprehension as to what matters were in dispute. Secondly, the plaintiff calls in aid the principles set out in Jones v Dunkell (1959) 103 CLR 314 with respect to the failure of the defendants to call Mr John Whyte to give evidence. At best, this may lead to an inference that Mr Whyte's evidence would not have assisted the defendants. This is a neutral finding. The failure to call the witness does not lead to an inference that he would have given evidence in favour of the plaintiff.

70. As all of the evidence concerning the plaintiff's claim was led before me, I have deemed it appropriate to make factual findings about all of these allegations. My conclusion that the Minute of 29 July 1997 was not a final determination by Mr Higham means, of course, that there was no concealment by the defendants of any fact relevant to a cause of action pleaded by the plaintiff. As such, the existence of the Minute was not relevant in the proceedings before Mansfield J or Besanko J, with the consequence that issue estoppel also operates to preclude the plaintiff reagitating the factual findings in those proceedings.

71. Judgment will be entered for the defendants against the plaintiff in these proceedings.

72. Unless the parties make some application for a different costs order within 14 days of publication of this judgement, I order that the plaintiff pay the defendants' costs of the proceedings.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.