Dunstan v Morgan

1. The decision by the first respondent on 8 July 2024 to reject the documents sought to be filed by the applicant on 23 June 2024 be set aside.
2. The question whether the documents sought to be filed on 23 June 2024 should be accepted for filing be remitted to a Registrar for consideration. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNETT J: 1 The applicant (Mr Dunstan) is a frequent litigator in this Court. The many proceedings that he has commenced arise from events connected with his employment in the Australian Public Service in the 1990s and the termination of that employment. An account of this tortured history is given in the judgment which Mr Dunstan seeks to have set aside: Dunstan v Orr (No 2) [2023] FCA 1536 at [4] - [52] (Wigney J) (Dunstan v Orr (No 2)). 2 The proceeding which gave rise to Dunstan v Orr (No 2) was commenced by Mr Dunstan in 2021. As recounted by Wigney J at [1], Mr Dunstan alleged, in essence, that: … the Commonwealth is liable to him in the tort of negligence because the officers who were involved in the events that led to his suspension gave false evidence and concealed documents in the previous proceedings that were determined adversely to him. He also claims, or appears to claim, that the judgment in the first of those previous proceedings was procured by fraud and should be set aside. 3 The respondents, who included three of the officers who were alleged to have given false evidence in the previous proceedings, sought summary judgment in their favour. That application was heard on 20 and 21 September 2022 and his Honour made orders, dismissing the proceeding, on 7 December 2023. An application for leave to appeal from Dunstan v Orr (No 2) is on foot. 4 On 16 June 2024 Mr Dunstan sought to commence a separate proceeding, seeking to have the judgment in Dunstan v Orr (No 2) set aside on the ground that it was procured by fraud. A Registrar of the Court refused to accept Mr Dunstan's originating application and other documents for filing, in reliance on r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules), in a decision communicated to him on 18 June 2024. The letter referred to authority on the meaning of "abuse of process", "frivolous" and "vexatious", and continued: I am satisfied that I should refuse to accept the Application for filing because, on its face or by reference to the Concise Statement, it meets the definitions of "frivolous", "vexatious" and "abuse of process" described by Justice White in [Ferdinands v Registrar Cridland [2022] FCAFC 80]. I note in particular that: (1) the Application fails to state, to the extent it is claimed under a provision of an Act, the Act and the provision under which the relief is claimed in accordance with rule 8.03 of the Rules. (2) the Application as a matter of form and substance seeks to appeal the decision of Justice Wigney in Dunstan v Orr (No 2) [2023] FCA 1536, in circumstances where the only avenue of appeal is an application for leave to appeal in accordance with section 24(1A) of the Federal Court of Australia Act 1976 (Cth). (3) the Application appears to be an attempt to re-litigate proceedings, whether based on new evidence or not, that have already been litigated: see McDonald v Colbran [2019] FCA 1937. (4) the Application does not properly state any reasonable cause of action and has no prospects of success. In summary, I refuse to accept the documents for filing pursuant to rule 2.26 of the Rules for the reasons outlined above. 5 No complaint is currently made concerning this decision. 6 Mr Dunstan made some changes to his documents in the light of the letter of 18 June 2024 and sought to file a new version on 23 June 2024. The "Details of claim" set out in his originating application included the following: The Federal Court has implied jurisdiction to set aside orders procured by fraud. This is reflected in r 39.05(b) of the Federal Court Rules 2011 (Cth) (FCR) which provides that the Federal Court may set aside or vary any judgment or order after it has been entered if it was "obtained by fraud". A footnote referred to Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617; 116 ATR 458 (Rawson) at [57]. 7 By a letter dated 8 July 2024, over the signature of the first respondent (Registrar Morgan), Mr Dunstan was informed that these documents had also been rejected for filing (the refusal). The letter gave the following reasons: My reasons are as follows: The grounds set out in the application are identical or substantially similar to an application presented by you on 16 June 2024 for which [sic] Judicial Registrar Buckingham refused to accept on a number of grounds including that the application: - fails to state the provision under which relief is claimed; - as a matter of form or and [sic] substance seeks to appeal the decision of Justice Wigney in circumstances where the only avenue for appeal is an application for leave to appeal; and - appears to be an attempt to re-litigate proceedings that have already been litigated. The reasons and authorities relied on by Judicial Registrar Buckingham in the letter of 18 June 2024 apply equally to this latest application you wish to file. For these reasons, in my view the application sought to be heard by the filing of the Documents cannot possibly succeed and therefore the Documents are an abuse of the process of the Court and frivolous and vexatious. (Emphasis in original.) 8 Rule 2.26 of the Rules provides as follows. A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. 9 In this proceeding Mr Dunstan has applied, under the Administrative Decisions (Judicial Review) Act 1976 (Cth) (ADJR Act) or alternatively s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), for orders setting aside the refusal and directing the acceptance of his documents for filing. He also seeks orders, in effect, staying his application for leave to appeal. 10 Mr Dunstan also relies on two affidavits in which he records his attempts to confirm the identity of the decision maker. As noted above, the refusal was conveyed by a letter signed by Registrar Morgan. (This was confirmed by an email from the ACT Registry to Mr Dunstan on 9 July 2024.) Mr Dunstan has obtained metadata for the letter which suggests that its author was the second respondent, Ms Fernando, who is a junior officer in the Registry. Mr Duncan submits that, on the balance of probabilities, the decision maker was Ms Fernando and that she did not have power to make a decision under r 2.26. 11 I reject this particular submission. The fact that Registrar Morgan signed the letter conveying the refusal indicates that he at least approved and took responsibility for its contents. That external manifestation of the decision, by a repository of the power in r 2.26, is what constitutes the purported exercise of the power. 12 Mr Dunstan also alleges the following errors in the refusal. (a) It was not correct that his originating application failed to identify the provision under which relief was claimed. It did so expressly. In this regard, the reasoning which had led to the earlier version of his documents being rejected was not applicable. (b) It was also not correct that the "only avenue" for having the orders in Dunstan v Orr (No 2) set aside was to seek leave to appeal. (c) It was also contended that, in so far as the decision maker had regard to the decision in Dunstan v Orr (No 2), they took into account an irrelevant consideration. 13 As to the first argument, Mr Dunstan had remedied one of the defects in his earlier application so that it stated the foundation in law for the main relief that he sought. The reasons given for the refusal were therefore incorrect in so far as they referred to a failure to state the provision under which relief was claimed. This was a misunderstanding of the contents of the documents under consideration. Whether an error of this kind renders the refusal liable to be set aside under the ADJR Act or the Judiciary Act need not be decided, in the light of the other conclusions I have reached. 14 Mr Dunstan's second argument is also correct. Rawson is a recent example of a judgment found to have been procured by fraud and set aside in a separate proceeding. In that case, the judgment that was set aside had been pronounced by a Full Court in the exercise of appellate jurisdiction; yet Perry J, sitting in the original jurisdiction, was able to set it aside once fraud was established. Her Honour observed at [62] that it is generally appropriate for a party wishing to impeach a judgment on the ground of fraud to institute independent proceedings for that purpose. The Registrar thus erred in law in proceeding on the basis that an appeal was the only means by which the judgment in Dunstan v Orr (No 2) could be impugned. 15 This is not to suggest that the allegations of fraud which Mr Dunstan seeks to pursue would not be capable of being raised and determined in an appeal from Dunstan v Orr (No 2), assuming that leave to appeal is granted. If an appeal were on foot, it might be regarded as the preferable forum for ventilating these issues. The commencement of a separate proceeding seeking essentially the same outcome might be regarded as an abuse of process. Alternatively, one proceeding or the other would be likely to be stayed. However, Mr Dunstan currently requires a grant of leave in order to pursue his allegations in the appellate jurisdiction. 16 As to Mr Dunstan's third argument, the power in r 2.26 is enlivened by an opinion that the document is an abuse of process or frivolous or vexatious: (a) "on the face of the document"; or (b) "by reference to any documents already filed or submitted for filing with the document". 17 The reference to "documents already filed" has been held to mean documents filed in the same proceeding: Frigger v Trott [2021] FCA 18 at [14] (Jackson J) (Frigger). It is apparent that the rule is intended to permit rejection of an originating document only if the document can be seen on its face to be an abuse of process, frivolous or vexatious (eg because it fails to articulate any meaningful claim or advances a claim that is clearly doomed to fail); it is not intended to require or permit a Registrar to range more widely, consider matters of history or make fine judgments of law or fact. 18 However, I do not think it follows that the Registrar in this case was not permitted to take into account the existence and general nature of the judgment in Dunstan v Orr (No 2). The setting aside of that judgment was what Mr Dunstan's proposed new proceeding was seeking. The document sought to be filed could not be meaningfully assessed for the purposes of r 2.26 without understanding that it was an attempt to set aside a specific earlier judgment. Registrar Morgan did not purport to analyse the prospects of success of the new proceeding by reference to the merits of the earlier judgment. Instead, he concluded that it was an abuse of process or frivolous or vexatious because it was an attempt to re-litigate the earlier proceeding otherwise than by way of appeal. That reasoning was erroneous for reasons noted above. There is no additional error arising from the fact that the reasoning involved consideration of matters outside the four corners of the document sought to be filed. 19 Relief under s 16 of the ADJR Act and s 39B of the Judiciary Act is discretionary. It would not be appropriate to grant relief if it had no utility, which would be the position if the proceeding Mr Dunstan was seeking to commence was doomed to fail in any event. I have therefore had regard to the document which Mr Dunstan sought to file. 20 The central allegation appears to be that, at the hearing of the application for summary judgment in Dunstan v Orr (No 2), the respondents' solicitors and counsel relied on affidavit evidence that was false and made submissions that were "false, deceptive and misleading". Mr Dunstan then refers to a course of correspondence between him and the respondents' solicitors, seemingly in order to suggest some failure by the solicitors to comply with their professional duties, but this is at least prima facie irrelevant to whether there was a fraud on the Court. Two problems are immediately apparent. 21 One is that there is not sufficient particularity as to what evidence (or what submission) was false and why. Relevant dates are given but otherwise Mr Dunstan limits himself to sweeping assertions that evidence and submissions were "false" or "false and misleading". The respondents to the proposed proceeding would be entitled to know a great deal more about what was alleged against them. 22 The other problem is that the allegations concern propositions advanced in writing and during the hearing in the presence of Mr Dunstan himself, who knew of their (alleged) falsity. In the months following the hearing he entered into correspondence with the respondents' solicitors, apparently seeking to persuade them of the error of their ways. There is no indication of why it was not open to Mr Dunstan to draw the attention of Wigney J to propositions that he considered to be false and adduce evidence of the true position (or indeed whether he contradicted the allegedly false statements but was not believed). In these circumstances, even if false statements were made, it is far from clear that the judgment is to be regarded as having been procured by fraud. 23 However, while the proposed proceeding has at least these difficulties, it does not follow that it is so clearly hopeless as to require the relief currently sought to be refused. Relevant particulars can be given; and there may be an argument, if fraud is established, that the judgment should be set aside even though scope existed for the false statements to be rebutted. Nor is the proposed proceeding rendered futile by the fact that Mr Dunstan has already sought leave to appeal from Dunstan v Orr (No 2), although that position may change if leave to appeal is granted. 24 The appropriate relief is orders under the ADJR Act setting aside the refusal and remitting the matter for reconsideration (cf SZVPC v Cho [2017] FCA 310; 250 FCR 225 at [46] (Markovic J) (Cho); Frigger at [42]). I note that, in Cho, Markovic J ordered that the matter be reconsidered by a Registrar other than the one who had made the latest of the impugned decisions. That Registrar had taken into account extraneous material, and it might have been thought that their ability to reconsider the matter without being influenced by that material was open to question. In the present case, I do not think there is any reason why Registrar Morgan could not properly reconsider the question of filing the documents. I will therefore order that the matter be remitted to a Registrar, without attempting to specify whether any particular Registrar should or should not consider the documents sought to be filed. 25 When these reasons were close to completion, my chambers received a communication from Mr Dunstan indicating that he was having second thoughts as to whether he should pursue his claims through the application for leave to appeal or through a separate proceeding. He proposed an order setting aside the refusal but giving him an option as to whether reconsideration would be required. I have not changed the orders that I propose to make. Remittal of the matter to a Registrar under the ADJR Act in substance does no more than to clarify that, with the refusal set aside, the decision required to be made (whether to accept the documents for filing) has not been made in a legally effective manner. It will be open to Mr Dunstan to ask for the documents to be returned to him and not filed, or to discontinue the proceeding later if the documents are accepted for filing. I do not think it is appropriate for the documents to remain in limbo for some indeterminate period while Mr Dunstan considers whether he wishes a Registrar to consider them. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.