Dunstan v Human Rights & Equal Opportunity Commission

REASONS FOR DECISION 1 There is before the Court two notices of motion of the first respondent ("HREOC") and of the second respondent ("the Commonwealth") under O 20 r 2 of the Federal Court Rules ("the Rules") to dismiss this application on the grounds that no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious, or that the proceeding is an abuse of the process of the Court. 2 Neither motion was supported by affidavit (see O 19 r 1(2) of the Rules). Each of those respondents made submissions based upon the terms of the application itself and upon the affidavit of the applicant ("Mr Dunstan") filed in support of the application (see O 4 r 6). They did not seek to rely upon any extraneous material. In those circumstances, in my view, it is appropriate to dispense with compliance with O 19 r 1(2) of the Rules in respect of each motion. I do so, pursuant to the power in O 1 r 8 of the Rules. 3 As the parties did in the course of submissions, I have however also had regard to the nature of the allegations in matters AG 30 of 1997 and AG 77 of 1997. In each of those proceedings Mr Dunstan is the applicant. In matter AG 30 of 1997, HREOC and the Commonwealth are also respondents, and in matter AG 77 of 1997, the respondents are named officers of the Commonwealth. Upon the same basis, I have also had regard to the nature of certain criminal proceedings extant against Mr Dunstan. For the purposes of understanding the nature of those criminal proceedings, and the recent applications relating to them, by consent I have been provided with a copy of the bench sheets from the committal proceedings, a copy of the draft indictment (Mr Dunstan is to be indicted on 22 November 1999 when it is anticipated that the hearing of those charges will then proceed), and a copy of Mr Dunstan's application made to the Supreme Court of the Australian Capital Territory and heard before Higgins J on 11 November 1999, together with Mr Dunstan's affidavit in support of that application and the transcript of the hearing of that application. Mr Dunstan also presented on the hearing on the two motions copies of three notices of motion in matters AG 30, 31 and 32 of 1997, a statement of an officer of the Commonwealth made to a police officer on 6 December 1998, and a letter from Mr Dunstan to the Legal Aid Office (ACT) dated 30 October 1999. 4 Without opposition, the Director of Public Prosecutions for the Australian Capital Territory ("the DPP") was given leave also to make submissions on the motions. His concern was more with the claim for interlocutory relief to stay the criminal proceedings, which was included in the application. That claim in the event was not pursued. The background to the claim 5 The application is somewhat difficult to comprehend fully. That is understandable, given the long history of Mr Dunstan's disputes with HREOC and the Commonwealth, partly identified in the earlier proceedings, and given the fact that he is not legally represented. It is helpful to understand the nature of those allegations in those earlier proceedings. 6 At material times Mr Dunstan was employed in the Commonwealth Public Service in the Australian Taxation Office ("ATO"). 7 In matter AG 30 of 1997, against HREOC, the Commonwealth, and certain officers of those entities, his claim concerns four matters: (1) Following complaints made by him to HREOC on 17 September 1993 of sexual harassment and racial and sexual discrimination, and later in January 1995 of disability discrimination, HREOC on 2 April 1997 determined not to continue to inquire into the complaints of sexual harassment and sexual discrimination. He seeks judicial review of that decision. (2) In the period September 1993 to June 1997, in relation to the investigation and consideration of those complaints, three officers of the Commonwealth (who are also respondents to that application) maliciously published false and misleading information about him to HREOC and to the Commonwealth, so as to cause damage to him. He seeks damages from them for that conduct, and from the Commonwealth on the basis that it is responsible for that conduct. (3) During 1995 and 1996, on a number of occasions, an officer of EASACT Australia Pty Ltd (an organisation providing staff services to the ATO) published to an officer of the Commonwealth, and then officers of the Commonwealth in turn republished, material which was defamatory of Mr Dunstan, so as to cause him damage. Again he seeks damages for that conduct. (4) In the period November 1992 to January 1996, the Commonwealth by its officers and agents (who are alleged to include HREOC, COMCARE Australia, EASACT Australia Pty Ltd and others) was negligent in failing properly to investigate Mr Dunstan's complaints, in failing to protect him from harassment, and in the manner it responded to his complaints, so that he has suffered substantial loss and damage. He has been charged with misconduct and has been suspended from duty. He again claims damages as a result. 8 Mr Dunstan's claim in matter AG 77 of 1997 is against three officers of the Commonwealth who were apparently his superiors in the ATO and charged with supervising the performance of his work. He complains in that proceeding of the following: (1) the decision of 4 June 1997 to notify him that he may have failed to fulfil his duty as an officer, under s 56 of the Public Service Act 1922 (Cth) (2) the decision of 4 June 1997 to suspend him from duty, and (3) the decision of 13 or 20 October 1997 to charge him with misconduct under the Public Service Act 1922. He seeks to have each of those decisions declared void, and to have his entitlement to pay and to continued employment recognised. 9 I shall use the term "the criminal proceedings" to generally describe the course of the committal proceedings and the proposed criminal trial and matters relating to those proceedings about which Mr Dunstan has made allegations. The criminal proceedings concern allegations that Mr Dunstan sent to a number of persons, said to be connected with grievances he has in relation to his employment, a series of letter bomb devices. Of course, those matters are but allegations. On 4 December 1998, Mr Dunstan was arrested in respect of allegations concerning that behaviour. He was charged in the Magistrates Court in the Australian Capital Territory with a number of counts arising out of those allegations, including one count alleging contravention of s 19 of the Crimes Act 1900 (ACT) and a number of counts alleging contraventions of s 27(3)(e) of that Act. He was subsequently committed for trial, but it is not clear on the material before me whether he was committed for trial on all counts. His trial was first listed for hearing on 19 July 1999, but was adjourned. It is now to commence on 22 November 1999. The criminal proceedings were, and are, being conducted by the DPP under the provisions of the Director of Public Prosecutions Act 1990 (ACT). The DPP proposes to lay a fresh indictment against Mr Dunstan on 22 November 1999, with charges somewhat different from those which were the subject of the committal hearing. The draft indictment presently proposed contains twenty-one counts: (a) between 28 November 1998 and 4 December 1998 at Canberra, Mr Dunstan knowingly caused to be carried by post an article that contained a totally prohibited substance, namely an explosive (eleven counts) (s 85X Crimes Act 1914 (Cth)) ("Crimes Act (Cth)"), and (b) between those dates, at Canberra, Mr Dunstan intentionally attempted to inflict grievous bodily harm on ten named persons (10 counts). 10 On 8 November 1999, Mr Dunstan applied to the Supreme Court of the Australian Capital Territory for orders setting aside the committal order, and for a stay or adjournment of the criminal proceedings. He complained that he was unable to get a fair trial because · material evidence had been withheld from him at the committal hearing and subsequently · he had difficulty in obtaining access to materials relevant to the criminal proceedings (a matter which, he told me in submissions, has now been redressed), and · the proposed laying of a fresh indictment at the criminal proceedings deprived him of the opportunity to invite the Magistrates Court, at a committal hearing in respect of those charges, to dismiss them by reason of mental illness or intellectual disability under s 20BQ of the Crimes Act (Cth), or otherwise to deal with them summarily. At the time of the committal, those powers were not available to the magistrate because of the different and more significant nature of the charges then laid. Mr Dunstan also sought an adjournment of the criminal proceedings while the current proceedings before me were heard and determined. 11 Higgins J heard that application on 11 November 1999. His Honour refused the application. As his Honour's remarks during the course of the hearing indicated, he was of the view that the possible unfairness of which Mr Dunstan complained could be addressed by the trial judge so as to secure for Mr Dunstan a fair trial. His Honour was not persuaded that he should stay the criminal proceedings because the charges proposed to be laid differed from those before the magistrate at the time of the committal hearing. He did not think a case had been made out that a magistrate, with only the charges now proposed to be laid before that magistrate, would have been persuaded to dismiss them under s 20BQ of the Crimes Act (Cth), or would otherwise have dealt with any of those charges summarily. The present proceedings 12 The gravamen of the present proceedings is set out in par 1 of the application as follows:

17 In addition, the application identified claims for interlocutory relief. The first was for an order granting an expedited hearing of this application, together with the civil actions in matters AG 30 of 1997 and AG 77 of 1997. Secondly, it sought an order temporarily staying the progress of the criminal proceedings against the applicant pending both the completion of these proceedings and compliance by the respondents with any orders this Court may make and which may affect the future conduct of criminal proceedings against the applicant. 18 That interlocutory relief is no longer sought. I have very grave doubts that the Court could make an order staying the criminal proceedings, but it has not been necessary to further pursue that question. I also note the decision of Heerey J in Second Life Decor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78 in that regard. The contentions 19 The submissions put on behalf of HREOC and the Commonwealth were: (1) The Court has no jurisdiction to hear and determine the application (2) The application was "foredoomed to fail" so that it constituted an abuse of the process of the Court; Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ (3) The application was brought for an improper purpose, namely either an attempt to intimidate or discourage witnesses from giving evidence in the criminal proceedings or to obtain information relevant to the prosecution of the criminal proceedings which is not otherwise available to Mr Dunstan, or to delay the criminal proceedings. If those purposes were made out, clearly they would constitute an abuse of the process of the Court: Williams v Spautz (1992) 174 CLR 509. Consideration of contentions 20 In my judgment I can resolve the motions by ruling on submission (2) above. 21 I have referred to the detailed claims in the application. In large measure they are directed at the conduct of the criminal proceedings. To the extent that they do so, Mr Dunstan now accepts that he cannot maintain the proceedings. Higgins J has addressed the issues which Mr Dunstan sought to raise in these proceedings regarding access to material, the withholding of relevant material, and the significance and consequences of the change in the nature of the charges after the committal hearing. Mr Dunstan acknowledges that the proper avenue, if he is dissatisfied with that ruling, is to appeal from that decision. He also acknowledges that matters such as access to material going to the conduct of a fair trial is a matter for the trial judge. 22 Mr Dunstan nevertheless submits that the application is not directed exclusively to the course of the criminal proceedings. I accept that pars 1, 6 and 7 of the application are not expressly so confined. I have referred above to pars 2 and 3 of the application. They expressly relate to the criminal proceedings. Paragraphs 4 and 5 do not identify possible claims, but recite historical or factual matters, and pars 8 and 9 deal with jurisdiction only. 23 Paragraph 1 of the application refers to judicial proceedings instituted against Mr Dunstan, or to the tribunals in which proceedings have been instituted against him. Those proceedings are nowhere identified. The affidavit in support of the application does not refer to any such proceedings, other than the criminal proceedings. Paragraph 1 of the affidavit is introductory. Paragraph 2 recites a series of general "grounds" for the application. To the extent to which there is any specific focus on those allegations, it is directed to the criminal proceedings (pars 2.4-2.7). Paragraph 3 does not refer to any such proceedings. The affidavit then deals with the "evolution" of charges and the alleged fabrication of evidence in relation to the criminal proceedings (par 4), with the significance of the change in the proposed charges after the committal hearing (pars 5-10 and 35), and with the quality of the proposed evidence concerning intent and other matters in relation to the criminal charges (pars 11-34). 24 There remains, therefore, pars 36-38 of the affidavit. They also do not identify any such proceedings. In my judgment, those paragraphs (even if taken in conjunction with those parts of pars 2 and 3 of the affidavit which do not explicitly refer to the criminal proceedings) do not assert any facts which could give rise to a cause of action against any of the respondents and which could show any prospect of the claim in par 1 of the application succeeding. 25 The defacto "stay" of proceedings in the civil actions to which par 36 of the affidavit refers is not a matter which can give rise to a separate claim. The two proceedings in matters AG 30 of 1997 and AG 77 of 1997 are on foot. They were listed for hearing earlier this year, but were adjourned at Mr Dunstan's request and by consent because of their close proximity to the time of the committal proceedings. The Court will relist those proceedings for hearing when the parties are in a position to proceed with them. It has offered to make available hearing time to relist those matters since the proceedings were first adjourned, but no date convenient to the parties has yet been able to be fixed. 26 Mr Dunstan also brought separate proceedings in matters AG 58 of 1999 on 27 July 1999 seeking review of the decision of a delegate of the Commissioner of Taxation to refuse to continue any salary payment of Mr Dunstan from 1 April 1999. That application was heard on 7 October 1999 and judgment delivered on 12 November 1999 (Dunstan v Farr [1999] FCA 1551 by Weinberg J ("Dunstan v Farr")). 27 Paragraph 37 alleges "cancellation of my salary payments, and about six months detention" causing damage to Mr Dunstan. In so far as the cancellation of salary payments is able to be ventilated in proceedings, the recent cancellation of those payments has been dealt with in Dunstan v Farr. In so far as it relates to earlier events, there is no fact alleged to indicate that it is not the same conduct as is the subject of the ongoing civil proceedings. There is no fact alleged upon which a separate cause of action could be shown to arise. There is no additional decision in relation to the cancellation of salary payments which has been identified in the affidavit, or in the application. 28 In so far as that paragraph relates to "about six months detention", which I assume refers to periods that Mr Dunstan has been in custody since the committal hearing, there are no facts alleged from which it can be discerned that any of the respondents specifically or directly played a part in the order for committal for trial. The evidence shows the committal proceedings, and the criminal proceedings generally, are being conducted by the DPP under s 6 of the Director of Public Prosecutions Act (ACT). The judgment of Weinberg J in Dunstan v Farr (at pars 7-12) refers to Mr Dunstan having been in custody from the time of his arrest on 4 December 1998 to 19 March 1999. It is nowhere alleged in this proceeding that he applied for bail and was refused bail at the time of his arrest. On 9 April 1999, the Full Court of the Supreme Court of the Australian Capital Territory revoked bail, and following Mr Dunstan's committal for trial he did not seek bail until 24 May 1999. Miles CJ refused bail on 2 June 1999, but that decision was set aside by the Full Court of this Court on 7 July 1999. Mr Dunstan has been free on bail since. This application is not an appropriate vehicle to review those processes. There are avenues to review a decision refusing bail (or granting bail) as the matters just referred to demonstrate. There are, in any event, no facts alleged from which an arguable cause of action can be shown to exist against any of the respondents in respect of any of those periods of detention, in the sense that they or any of them played a direct part in the decision to lay the charges. That, on the material before me, was done by the DPP. Moreover, the position of persons providing information to prosecuting authorities and of giving evidence is well protected by the law: Cabassi v Vila (1940) 64 CLR 130; Mann v O'Neill (1997) 191 CLR 204; R v McLachlan [1998] 2 VR 55. There are no facts alleged which could indicate any arguable foundation for the respondents in this proceeding being liable to Mr Dunstan for the provision of information to the prosecuting authorities. 29 Paragraph 38 of the affidavit is in the most general term. It reads:

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