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[1999] FCA 1608
Federal Court of Australia
1999-11-19
Higgins J, Mansfield J
Original judgment source is linked above.
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:
"The Applicant is aggrieved by conduct of officers of the First and Second Respondents and their former officers, the Third and Fourth Respondents: giving and/or using false or misleading testimony for the purpose of instituting judicial proceedings against the Applicant, and/or fabricating and using fabricated evidence to mislead tribunals in proceedings against the Applicant."
13 Paragraph 2 refers expressly, and only, to the criminal proceedings. Paragraph 3 also alleges that the pursuing of the criminal proceedings has been maintained "to the following ends", namely to delay Mr Dunstan's civil proceedings (presumably a reference to matters AG 30 of 1997 and AG 77 of 1997, or at least including those actions), to inflict economic hardship on Mr Dunstan, and to deprive Mr Dunstan of the opportunity for summary dismissal of the criminal proceedings and to keep him in custody. Paragraphs 4 and 5 of the application refer to some medical evidence also directed to the claim in respect of the criminal proceedings. 14 For reasons which appear below, it is also desirable to set out pars 6 and 7 of the application. They are as follows:
"6. The Respondents to both those earlier civil proceedings and to this application continue their earlier negligence and thereby exacerbate that psychiatric injury and other losses already suffered by the Applicant: at the same time achieving a further delay in the Applicant's attempts to obtain redress for past wrongs.
7.1 Failing to conduct proper inquiries and taking no action in respect to four complaints to the Australian Federal Police made by the Applicant against unlawful and illegal actions by the Respondents, being complaints made in August 1996, February 1997, May 1997 and April 1998; and
7.2 Terminating proceedings the Applicant had commenced - in September 1993 and April 1997 - in his attempts to deter continuing unlawful and illegal actions by officers of the First and Second Respondents."
15 Paragraphs 8-10 of the application concern the question of jurisdiction. It is asserted that this Court has jurisdiction under ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth). In the course of submissions, Mr Dunstan also sought to rely upon the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It is put that the Court should exercise its jurisdiction because much of the conduct of the respondents complained of is in breach of ss 35 and 36 of the Crimes Act 1914 (Cth), that is that it involves giving false testimony and fabricating evidence. 16 The claim for relief is in par 11 of the application. It is in the following terms:
"On the grounds stated in the accompanying affidavit the Applicant claims:
(1) an order prohibiting the Respondents from engaging in the further collection of false or misleading testimony and the fabrication of further evidence;
(2) an order directing the Respondents to withdraw or otherwise clarify all false or misleading testimony and the fabricated evidence supplied to others;
(3) an order directing the Second Respondent to provide the Applicant with evidence obtained but thus far concealed from him;
(4) an order directing the Second Respondent to conduct proper inquiries into the complaints of unlawful or illegal actions made by the Applicant against the Respondents;
(5) damages against any or all Respondents as joint tortfeasors;
(7) interest as per s.51A of the Federal Court Act 1976; and
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:
"The same people and organisations, especially [the first, third and fourth respondents] continue to inflict injuries on my family and me through their furtive conduct and continuing disregard for the law and their duty of care to me."
30 Neither the third nor fourth respondents are parties to AG 30 of 1997 or AG 77 of 1997. Paragraph 38 contains no assertions of material facts. I do not know whether it seeks to allege matters already raised in those two earlier proceedings, or different facts. In its present form, it is incapable of sustaining any cause of action against those respondents, or the respondents generally to this application. 31 The consequence, in my judgment, is that par 38 of the affidavit in support of the application contains no allegations of material facts sufficient to maintain any arguable cause of action against the respondents or any of them. If there were a statement of claim, I would strike it out. On occasions, bearing in mind that the power to dismiss proceedings under O 20 r 2 should be sparingly exercised: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, the Court gives leave to replead a claim rather than dismiss it. I have given consideration to whether I should adopt that course in respect only of the very general matters in par 38 of the affidavit. In respect of the other matters in the affidavit, I am satisfied that the application is foredoomed to fail. 32 To consider that question further, I return to pars 1, 6 and 7 of the application and to par 11 containing the orders sought. 33 As noted, apart from the criminal proceedings, no judicial proceedings or other tribunal proceedings against Mr Dunstan have been identified. The allegation of giving false or misleading testimony or fabricating evidence is a very serious one. I have searched in vain for any fact alleged in the affidavit in support of that application and which might conceivably give some substance to the allegation. Paragraph 35 does not do so. The allegation is one which should be fully spelled out: O 12 rr 2 and 3 of the Rules. In my judgment there is no fact alleged in the application or in the affidavit which, if proved (as I assume for the purposes of this application it would be proved) could give rise to the cause of action spelled out in very general and unsatisfactory terms in par 1 of the application. 34 Paragraph 6 of the application is set out above. I have dealt with the question of delay. That paragraph otherwise refers to the respondents continuing "their earlier negligence". There are no material facts asserted which indicate that the claim in that respect is different from the claim in matter AG 30 of 1997. It seems to indicate that the consequences of the negligent behaviour alleged in that proceeding (if made out) are continuing to be suffered. There are no facts alleged from which a fresh cause of action in negligence could properly be asserted to have arisen. The claim is also unsatisfactory because the third and fourth respondents are not respondents to that earlier claim. If a separate and additional claim of negligence against them is to be made out, it must be properly pleaded. The assertion of "furtive conduct" and "continuing disregard for the law" does not constitute such a pleading. 35 Paragraph 7 of the application is also set out above. It is curiously expressed. It refers to the lack of action of officers of HREOC and the Commonwealth "in respect to" four complaints made by Mr Dunstan to the Australian Federal Police alleging unlawful and illegal actions by the respondents. It does not appear to be an allegation against officers of the Australian Federal Police. If it is an allegation against the respondents generally, there are no facts alleged in the application or in the affidavit which could constitute material facts to give rise to a claim that the respondents or any of them should have taken particular action with respect to any of those complaints and did not do so, or made any decisions with respect to those complains which influenced their outcome. The proceedings which the application refers to commenced by Mr Dunstan in September 1993 and in April 1997 (probably the proceedings in matter 30 of 1997 which were commenced on 22 April 1997) are not identified. The proceedings in matter AG 30 of 1997 are not terminated. How, if at all, the first and second respondents terminated the proceedings referred to is not explained. In respect of those matters, there is no basis alleged to show that decisions were made by any of the respondents which are capable of review in these proceedings. There are no allegations made concerning the third and fourth respondents. There are no facts or decisions identified which could constitute decisions under an enactment, so as to render those decisions potentially judicially reviewable, and no conduct identified which could be described as conduct engaged in for the purposes of making a decision under an enactment, which could make that conduct judicially reviewable. In addition, bearing in mind the delay since the conduct or decisions to which par 7 of the application apparently refers, there are no facts alleged relevant to whether the application is within the prescribed period specified by s 11 of the Administrative Decisions (Judicial Review) Act 1977. 36 Those considerations lead me to the conclusion that, even in respect of the very general allegations in pars 1, 6 and 7 of the application and par 38 of the affidavit, (excluding allegations concerning the conduct of the criminal proceedings for reasons given earlier) those matters as presently expressed have no prospect of success. As I indicated, I have considered whether I should allow pars 1, 6 and 7 of the application to stand, at least provisionally, to enable Mr Dunstan to file and serve a fresh affidavit or a statement of claim to be limited to the general category of issues to which par 38 of the affidavit hints. I do not consider I should do so. I have identified above the obvious shortcomings in the application and the affidavit. I cannot see how Mr Dunstan could properly file and serve a fresh affidavit or file and serve a statement of claim which could meet those shortcomings, at least not in the present proceedings with their substantial (but not total) focus upon the criminal proceedings. 37 Accordingly, in my judgment the proper order is to accede to the application on the two motions. I order that the application be dismissed. 38 I also propose to order that the time from which any application for leave to appeal from this decision, or from which any appeal from this decision, commence to run from Monday 22 November 1999. 39 In my judgment the applicant should pay to the first and second respondents costs of the application to be taxed, including costs of the notices of motion. The fourth respondent has not appeared in the proceedings, and the third respondent filed an appearance in person. Neither was represented by counsel, although counsel for each of the first and second respondents indicated that in a general way each was attending to their respective interests. In my view it is inappropriate in those circumstances for any order for costs in favour of those respondents to be made. I have also considered the claim for costs by the DPP. Having regard to the basis upon which the DPP participated in the proceedings, and the basis upon which I have resolved the proceedings, in my discretion, the appropriate order is that there be no order for costs in favour of the DPP. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.
Associate: Dated: 19 November 1999 Applicant appears in person
Counsel for the First Respondent: Mr W Davis
Solicitors for the First Respondent: Clayton Utz
Counsel for the Second Respondent: Mr G Stretton
Solicitors for the Second Respondent: Australian Government Solicitor
No appearance by or on behalf of the Third and Fourth Respondents
Counsel for the Director of Public Prosecutions: Mr R Refshauge
Date of Hearing: 12 November 1999
Date Orders made: 16 November 1999
Date of Reasons for Decision: 19 November 1999
Dunstan
Human Rights & Equal Opportunity Commission
(1994) 53 FCR 78
(1993) 177 CLR 378
(1992) 174 CLR 509
(1940) 64 CLR 130
(1997) 191 CLR 204
(1964) 112 CLR 125