No reasonable case in respect of the alleged breaches of duty
127 The absence of any arguable case that the Commonwealth owed Mr Dunstan a duty of care is a sufficient basis upon which to enter summary judgment against Mr Dunstan in respect of his negligence case against the Commonwealth. There are, however, other fundamental and insurmountable difficulties with Mr Dunstan's case in negligence against the Commonwealth. I should, in deference to the detailed and persuasive submissions of the respondents, deal briefly with some of the difficulties in respect of the other elements of Mr Dunstan's negligence case.
128 Mr Dunstan's claim that the Commonwealth breached the duty of care it owed him, or is in some way vicariously liable for the negligent acts of the individual respondents and the legal advisers, is based on a series of complex, convoluted and arcane allegations concerning allegedly false or fraudulent evidence in the proceedings before Besanko J and Burns J, the allegedly deliberate concealment of documents or parts of documents that supposedly should have been discovered in that litigation, and an alleged conspiracy between the individual respondents to terminate Mr Dunstan's employment.
129 In short summary, Mr Dunstan alleges that: Mr Growder gave deliberately or recklessly false evidence before Besanko J concerning his motive for investigating Mr Dunstan's systems access and the timing of the commencement of that investigation; Dr Molineux gave deliberately or recklessly false evidence before Besanko J in respect of a meeting which he had with Mr Growder on 13 May 1997 which was said to be relevant to Mr Growder's intention or desire to have Mr Dunstan's employment terminated; Ms Orr gave deliberately or recklessly false evidence before Besanko J in respect of her knowledge, as at 13 May 1997, of the HREOC proceedings and private prosecution commenced by Mr Dunstan; Mr Higham gave deliberately or recklessly false evidence during the proceeding before Besanko J, and the proceeding before Burns J, concerning why, as at 29 July 1997, he had not decided, or could not have decided, not to charge Mr Dunstan under the Public Service Act; Mr Higham gave deliberately or recklessly false evidence before both Besanko J and Burns J to the effect that he created his final report in September or October 1997; Ms Orr gave deliberately or recklessly false evidence in the proceeding before Besanko J concerning her knowledge, state of mind and involvement in the events that occurred after her decision on 4 June 1997 to suspend Mr Dunstan; the Commonwealth failed to discover certain documents in both the proceeding before Besanko J and the proceeding before Burns J; and the Commonwealth's legal representatives failed to inform the court that Mr Growder, Ms Orr and Mr Higham lied and suppressed material evidence in both the proceeding before Besanko J and the proceeding before Burns J, and falsely claimed legal professional privilege in respect of certain documents.
130 I have read and given detailed consideration to the voluminous affidavit and documentary evidence and written submissions relied on by Mr Dunstan in respect of those serious allegations. I have also given detailed consideration to the respondents' written submissions which address the allegations at some length. For reasons that will become apparent, I do not propose to address or analyse in detail the allegations and the prolix and labyrinthine arguments that Mr Dunstan advanced in respect of them. It suffices to address what I consider to be the fundamental problems with Mr Dunstan's case in respect of those serious allegations and his contention that they establish, or if made out are capable of establishing, a breach of the duty of care that Mr Dunstan alleges the Commonwealth owed him.
131 The first problem is that in the proceeding before Besanko J, Mr Dunstan challenged the evidence of Mr Growder, Dr Molineux, Ms Orr and Mr Higham and sought to impugn their credibility and reliability as witnesses. The underlying claims or allegations upon which Mr Dunstan relied in challenging the evidence of the relevant witnesses in the proceeding before Besanko J are, for all intents and purposes, essentially the same as those upon which he relies in this proceeding. The problem for Mr Dunstan is that Besanko J categorically dismissed his challenges to the evidence of the witnesses and categorically rejected his contention that the witnesses had given false evidence.
132 As noted earlier, the proceedings before Besanko J concerned Mr Dunstan's challenge to three decisions that he alleged were made in respect of the investigation into his alleged systems violations, his suspension from duty and the subsequent charges that were laid against him under the Public Service Act. It is unnecessary to descend into detail in relation to the particulars of Mr Dunstan's challenge to those decisions. It is readily apparent that one of the central planks of his case was that Mr Growder was improperly motivated to pursue Mr Dunstan by a desire to retaliate against him because he had commenced the HREOC and private prosecution proceedings against him. Mr Dunstan also alleged that Mr Higham's improper motivation or desire came to be shared by Dr Molineux, Mr Higham and Ms Orr. He alleged, in short, that there was a conspiracy against him led by Mr Growder.
133 Many, if not most, of the allegations concerning false evidence that Mr Dunstan seeks to agitate in this proceeding directly or indirectly relate to his overriding allegation that Mr Growder, Ms Orr, Dr Molineux and Mr Higham conspired against him and acted for an improper purpose. Mr Dunstan alleges, in summary, that the evidence that the witnesses gave before Besanko J that tended to refute that allegation was false. Justice Besanko gave detailed consideration to Mr Dunstan's allegation that the ATO officers were improperly motivated and detailed consideration to Mr Dunstan's contention that the evidence the witnesses gave which bore on that issue was false. His Honour made the following findings.
134 First, each of Mr Growder, Ms Orr, Dr Molineux and Mr Higham "was an honest and straightforward witness" and his Honour accepted the evidence that they gave: Dunstan v Orr at [19].
135 Second, Mr Growder's actions "were not motivated by a desire to retaliate" and Mr Growder "acted in good faith and genuinely formed the opinion that [Mr Dunstan] may have failed to fulfil his duties as an officer": Dunstan v Orr at [72]. His Honour was "not satisfied that the fact that [Mr Dunstan] had commenced criminal and civil proceedings against [Mr Growder] played any part in the opinion formed by [Mr Growder]" and was "not satisfied on the evidence that [Mr Growder] wished to remove [Mr Dunstan] from his place of employment or that he wished [Mr Dunstan] to have no entitlement to salary payments while conducting legal proceedings against him": Dunstan v Orr at [105].
136 Third, insofar as Mr Dunstan had put to Ms Orr that she acted on Mr Growder's opinion and that, as his purpose was improper, her purpose was also improper, that submission failed given the finding that Mr Growder's purpose was not improper: Dunstan v Orr at [73]. His Honour accepted that Ms Orr "did not have a clear recollection of all matters, but she was a credible witness and the fact that her recollection was not perfect is unsurprising having regard to the lapse of time between the relevant events and the time at which she gave evidence": Dunstan v Orr at [73]. His Honour rejected Mr Dunstan's contention that Ms Orr improperly exercised her power under the Public Service Act because she acted at the behest of Mr Growder and found that there was no evidence to suggest that Ms Orr "did not consider the matters she was required to consider" in making the decision she did: Dunstan v Orr at [117].
137 Fourth, nothing that Mr Dunstan put to Mr Higham concerning his decision "affected his credibility or supported any of the grounds upon which his decision [was] challenged": Dunstan v Orr at [79].
138 Fifth, in relation to Dr Molineux, his Honour noted that in his evidence Dr Molineux had denied Mr Dunstan's assertion that the sequence of events, including the decision to get a second opinion, indicated "an intention by officers of the ATO to 'get' [Mr Dunstan]" and found that there was "no reason to doubt his denial": Dunstan v Orr at [81]. More generally, his Honour declined to draw the inference that the ATO officers were out to "get" Mr Dunstan: Dunstan v Orr at [81].
139 Justice Besanko's judgment was the first occasion on which the substance of many, if not most, of the serious allegations that Mr Dunstan seeks to level against Mr Growder, Ms Orr, Dr Molineux and Mr Higham in this proceeding were categorically rejected by a judge.
140 Mr Dunstan contended, in effect, that he was not in any way estopped or otherwise precluded from reagitating the claims and allegations which were put to and rejected by Besanko J in the ADJR Act proceeding. That was because, so he claimed, certain documents were concealed from him at the time of the proceedings before Besanko J. Those documents were: first, all four "day books" containing the "Molineux notes"; second, Mr Higham's minute dated 29 July 1997; third, the legal advice that the ATO received from Mr Burslem; fourth, a minute prepared by Mr Seymor dated 30 July 1997; fifth, Ms Orr's memorandum dated 15 August 1997; and sixth, some pages of Dr Molineux's notes.
141 It is unnecessary to deal at length with Mr Dunstan's claims about what documents he maintains he did not have access to for the purposes of the proceeding before Besanko J. That is because, for the most part, he had access to those documents, or those parts of the documents that were not privileged, for the purposes of the proceeding before Burns J. It is the findings made in the disposition of the proceeding before Burns J that provide the insurmountable estoppel issues for Mr Dunstan. The following brief points, however, should be noted.
142 First, the contention that the documents were "concealed" from Mr Dunstan is unsupported by any probative evidence and must be rejected.
143 Second, the critical document would appear to be Mr Higham's minute dated 29 July 1997. That document was included in the respondents' list of discovery documents in the proceeding before Besanko J. It was, however, the subject of a claim of legal professional privilege. As will be seen, that privilege claim was dealt with at length by the ACT Court of Appeal in the appeal from the judgment from Burns J: Dunstan v Higham CA at [138]-[159].
144 Third, the relevance and materiality to the issues in the proceeding before Besanko J of the other documents identified by Mr Dunstan is at best questionable. It is doubtful that they would have provided any support for the contentions Mr Dunstan advanced before Besanko J and even more doubtful that they provide any support for the serious allegations he raises in this proceeding.
145 The more fundamental problem for Mr Dunstan in relation to his claim that the Commonwealth breached its duty of care is that the allegations that he advances in that regard are effectively the same as those that were advanced by him in the proceeding before Burns J. To the extent that the allegations are not the same as those that were advanced before Burns J, the allegations plainly could and should have been raised in that proceeding.
146 As noted earlier, the proceeding before Burns J involved claims by Mr Dunstan against, relevantly, the Commonwealth, Mr Growder, Ms Orr and Mr Higham, of misfeasance in public office, breach of contract, conspiracy, defamation and interference with contractual relations. Mr Dunstan's claim focussed on the allegation that Mr Higham had decided not to charge him on 29 July 1997 and could not lawfully subsequently decide to charge him. That contention was based mainly on the terms of Mr Higham's minute dated 29 July 1997, a copy of which had by this time been obtained Mr Dunstan. Mr Dunstan did, however, also reagitate his claim that Mr Growder, Ms Orr and Mr Higham had unlawfully conspired to have his employment terminated.
147 It is readily apparent that, in pursuing those allegations, both at first instance before Burns J and on appeal to the ACT Court of Appeal, Mr Dunstan again contended that Mr Growder, Ms Orr, and Mr Higham had given false evidence in respect of the events surrounding his suspension and the laying of charges against him, both in the proceeding before Besanko J and the proceeding before Burns J. The allegations that the Mr Growder, Ms Orr and Mr Higham had given false evidence again focussed to a large extent on their evidence which bore, or was said to bear, directly or indirectly on the question whether, in acting as they did, Mr Growder, Ms Orr and Ms Higham were improperly motivated by a desire to retaliate against Mr Dunstan for commencing the HREOC proceeding and the private prosecution. Mr Dunstan also contended that Mr Higham gave false evidence, both in the proceeding before Besanko J and in the proceeding before Burns J itself, in respect of the timing of his decision to lay charges against Mr Dunstan.
148 The principal reason given by Burns J for dismissing Mr Dunstan's claim with costs was that his pleaded causes of action were all statute barred. Mr Dunstan argued that his case fell within the postponement of the bar in s 33(1) of the Limitation Act because the existence of Mr Higham's minute had been concealed from him. That contention was rejected by Burns J on the basis that Mr Higham's minute did not constitute or evidence a final decision by Mr Higham not to charge Mr Dunstan and therefore could not constitute a "fact relevant to a cause of action" for the purposes of s 33(1) of the Limitation Act: Dunstan v Higham at [51], [55], [58], [65], [67].
149 It is, however, readily apparent that Burns J also rejected Mr Dunstan's contention that Mr Growder, Ms Orr and Mr Higham had given false evidence. His Honour also rejected Mr Dunstan's contention that Mr Growder, Ms Orr and Mr Higham had "engaged in a disgraceful and unlawful campaign to have him removed from his office as a public servant": see Dunstan v Higham at [12], [52], [56] and [64].
150 As for the contention that Mr Growder, Ms Orr and Mr Higham had given false evidence, Burns J concluded (Dunstan v Higham at [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.
151 His Honour dealt at length with Mr Dunstan's criticisms of Mr Higham's evidence and the contention that he had given false evidence, including in the proceeding before Besanko J, concerning the existence of his minute and the timing of his decision to charge Mr Dunstan: Dunstan v Higham at [39]-[51]. His Honour rejected Mr Dunstan's contentions in that regard, including his contention that, in his evidence before Besanko J, Mr Higham had attempted to mislead and conceal the true nature of the minute: Dunstan v Higham at [49], [51]. His Honour also found that Mr Higham "independently and properly made a decision that charges should be laid against [Mr Dunstan]" (Dunstan v Higham at [52]) and that Mr Growder, Ms Orr and Mr Higham "did not attempt to have [Mr Dunstan's] employment terminated outside the scope of the Public Service Act, and did not act in bad faith in their dealings with [him]": Dunstan v Higham at [56].
152 Justice Burns's judgment was the second occasion on which the substance of the serious allegations that Mr Dunstan seeks to level against Mr Growder, Ms Orr and Mr Higham in this proceeding were categorically rejected by a judge.
153 As has already been noted, Mr Dunstan appealed the judgment of Burns J. That appeal was unsuccessful. Relevantly, for present purposes, the ACT Court of Appeal rejected Mr Dunstan's contention that Burns J had erred in accepting the evidence of Mr Growder, Ms Orr and Mr Higham, or in rejecting Mr Dunstan's contention that there was a conspiracy against him: Dunstan v Higham CA at [132]. The ACT Court of Appeal also considered at length Mr Dunstan's contention that Mr Higham, Ms Orr and Mr Growder had deliberately concealed Mr Higham's minute dated 29 July 1997 from Besanko J by improperly claiming legal professional privilege over the whole document. The court found that, while a claim of legal professional privilege was only properly made in respect of those parts of the minute that recorded legal advice, the solicitor who had advised the respondents in relation to the privilege claim genuinely believed that the claim was appropriate: Dunstan v Higham CA at [154]. The court also found that Mr Dunstan had not established that Mr Growder, Ms Orr and Mr Higham had a motivation to conceal the minute, or that they acted improperly in claiming legal professional privilege over the whole of the document, or that they deliberately concealed the minute: Dunstan v Higham CA at [158]-[159].
154 The ACT Court of Appeal judgment was, in effect, the third time that a court had rejected the substance of Mr Dunstan's claim, that he seeks to reagitate in this proceeding, that Mr Growder, Ms Orr and Mr Higham had given false evidence in the proceedings before Besanko J and Burns J. The ACT Court of Appeal also rejected Mr Dunstan's serious allegations concerning the conduct of the respondents' legal advisers: Dunstan v Higham CA at [154].
155 The judgments of Burns J and the ACT Court of Appeal in the litigation instigated by Mr Dunstan in the ACT Supreme Court create insurmountable hurdles for his contention in this proceeding that, assuming the Commonwealth owed him a duty of care, the Commonwealth breached that duty of care in some way arising from the fact that Mr Growder, Ms Orr and Mr Higham gave false evidence in the proceedings before Besanko J and Burns J. Given the findings in those cases, Mr Dunstan is estopped from reagitating the allegations against Mr Growder, Ms Orr and Mr Higham in this proceeding. He is also estopped from reagitating the allegations against the respondents' legal advisers in respect of their conduct of the earlier proceedings.
156 It is unnecessary to deal at length with the relevant principles in respect of issue estoppel and Anshun estoppel. In summary, issue estoppel "operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment": Tomlinson at [22]. The consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies": Blair v Curren (1939) 62 CLR 464 at 531; [1939] HCA 23.
157 Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45), on the other hand (Tomlinson at [22]):
operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of the first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.
(Footnotes omitted)
158 The factual claims and allegations that Mr Dunstan raises in this proceeding in the context of his allegation that the Commonwealth breached its alleged duty of care are in substance the same as the factual claims and allegations that were resolved or determined against him by Burns J at first instance and the ACT Court of Appeal on appeal. While the arguments Mr Dunstan advances in respect of those claims and allegations in this proceeding are perhaps more elaborate and intricate than those he advanced in the earlier proceedings, the essence or substance of them remain the same: first, in acting as they did, Mr Growder, Ms Orr and Mr Higham were improperly motivated by a desire to retaliate against Mr Dunstan for having commenced the HREOC proceeding and private prosecution; second, on 29 July 1997, Mr Higham decided not to lay charges against Mr Dunstan; third, the evidence given by Mr Growder, Ms Orr, Mr Higham and Dr Molineux which tended against or was inconsistent with Mr Dunstan's claims in that regard was false; and fourth, Mr Growder, Ms Orr, Mr Higham, the Commonwealth and their legal advisers concealed documents which supported Mr Dunstan's claim. The rejection of those allegations and claims by both Burns J and the ACT Court of Appeal precludes Mr Dunstan from raising them again in this proceeding. Those issues of fact have been disposed of once and for all.
159 Alternatively, if the allegations and claims that Mr Dunstan raises in this proceeding are not sufficiently the same as those raised in the proceeding before Burns J and the ACT Court of Appeal such as to give rise to an issue estoppel, they could certainly be said to be so connected with the subject matter and substance of the claims in the those proceedings as to make it unreasonable for them not to have been raised in them such as to give rise to an Anshun estoppel. To the extent that the factual claims and allegations Mr Dunstan raises in this proceeding differ at all to those he raised in the proceeding in the ACT Supreme Court, those differences are very minor matters of emphasis. The differences, if there are any, simply reflect the fact that Mr Dunstan has had more time to conjure up ever more elaborate arguments and theories to support his claims and allegations.
160 In the course of his oral submissions, Mr Dunstan eventually conceded that the claims and allegations against Mr Growder, Ms Orr and Mr Higham that he raises in this proceeding are similar to those that he raised in the earlier proceedings. He sought to justify his reagitation of those claims and allegations in three ways. First, he complained that Dr Molineux's notes were only disclosed to him in the course of the hearing before Burns J. Second, he advanced a series of somewhat perplexing claims concerning Dr Molineux's notes. Those claims included: first, that a line in the copy of Dr Molineux's notes that were disclosed to him in separate proceedings had been erased; second, there was some other version of the Molineux notes which had not been disclosed to him; third, there was a "fourth day book" of notes made by Dr Molineux that had not been disclosed to him; and fourth, that the respondents had somehow acted improperly in only recently confirming that they had been able to locate an unredacted copy of the notes that had been disclosed to him in a redacted form in the proceeding before Burns J. Third, Mr Dunstan contended that "fresh facts" had become available to him in recent times.
161 None of those three matters provides any explanation for why the claims and allegations that he raises in this proceeding, to the extent (if any) that they differ to the claims and allegations raised in the proceedings in the ACT Supreme Court, were not raised in those proceedings. None of the three matters provides any justification whatsoever for the reagitation of the claims and allegations in this proceeding.
162 As for Mr Dunstan's claim that Dr Molineux's notes were only disclosed to him part way through the hearing before Burns J, even if that is accepted, there is no basis for Mr Dunstan's implicit assertion that he was somehow prejudiced by that late production. Mr Dunstan was represented by experienced counsel at the hearing before Burns J. If the notes were produced late, and if that caused Mr Dunstan any prejudice, it was open to his counsel to either apply for an adjournment, or apply for witnesses to be recalled, or take some other step to remedy or deal with any prejudice. It may be inferred that a forensic or strategic decision was taken by him or his counsel to proceed with the hearing as they did. In any event, it appears that the notes were produced at a sufficiently early stage of the trial as to permit debate and resolve the issues concerning the redactions that had been made to the copies of the notes on the basis of relevance and privilege.
163 As for Mr Dunstan's other claims concerning Dr Molineux's notes, in my view they rose no higher than bare speculation or somewhat paranoid conspiracy theories. The claim concerning erasure was based on the fact that a line in a copy of Dr Molineux's notes that was produced in the course of separate proceedings in the Administrative Appeals Tribunal appeared to have been erased. It is clear, however, that the line that was erased was a fax header. In the version of the notes produced in the proceeding before Burns J, the fax header had been redacted on the basis of relevance. It is entirely unclear how or why the fact that someone (it is not known who it was) chose to erase the fax header on the copy of the notes produced in a different proceeding somehow justifies the reagitation, in this proceeding, of serious claims and allegations that were emphatically rejected in the proceedings in ACT Supreme Court.
164 Mr Dunstan's claim that there was a fourth day book containing notes by Dr Molineux that had never been disclosed appeared to be based on nothing more than pure speculation that Dr Molineux would have been involved in, and would have recorded his involvement in, further events concerning Mr Dunstan. In any event, this was a claim that Mr Dunstan could have, but did not, raise in the proceeding before Burns J if it had any merit or relevance.
165 There is also no basis whatsoever for Mr Dunstan's claim that the respondents or their legal advisers somehow acted inappropriately by confirming, only shortly prior to the hearing of this application, that they had taken steps to locate an unredacted copy of Dr Molineux's notes. The respondents confirmed that they had been able to locate an unredacted version of the notes so that, if the Court allowed Mr Dunstan's production application and ordered an unredacted copy of the notes to be produced, the respondents would be able to comply with that order without delay. For the reasons given earlier, however, I dismissed Mr Dunstan's production application in respect of the unredacted notes. Mr Dunstan's complaint that he only received notice that the respondents had an unredacted copy of the notes shortly prior to the hearing therefore goes absolutely nowhere. It certainly does not provide any justification for Mr Dunstan's attempt to reagitate in this proceeding claims and allegations that were rejected many years ago by Burns J and the Court of Appeal. I should also add that it is not surprising that the respondents' legal advisers took some time to locate an unredacted version of the notes given the time that has passed since the redacted version of the notes was produced and tendered in the proceeding before Burns J.
166 Finally, Mr Dunstan's claim that he has recently come into possession of fresh facts is also entirely without merit.
167 When pressed at the hearing to identify any fresh facts or evidence that had come into his possession since the proceeding before Burns J, the only fresh fact that Mr Dunstan was able to identify was his recent "realisation" that Mr Higham's final report had been fabricated. According to Mr Dunstan, he first came to realise that Mr Higham's report was fabricated after he read paragraph 45 of the judgment of the Court of Appeal, where the court said that "[w]hen Mr Higham eventually decided to charge the appellant with misconduct, a document was provided to the appellant in the same terms as the draft report, save that the word 'draft' was deleted". According to Mr Dunstan, when he read that paragraph it "rang a bell" and he thought "that doesn't look right". He then collated and reanalysed the material that he already had in a different light. Mr Dunstan's submissions concerning this supposed fresh fact were broadly consistent with what is stated in his pleading, albeit in the context of why the proceeding is not statute barred.
168 The fundamental problem for Mr Dunstan, however, is that this recent realisation could not possibly be said to be a fresh fact, or fresh evidence. It is, at best, a fresh theory or process of reasoning in respect of existing facts and evidence. It is also a theory or process of reasoning that has no sound or reasonable basis and is little more than a rehash or slight variation on Mr Dunstan's case, already twice rejected, that Mr Higham had lied in the proceeding before Besanko J about when he made his decision to charge Mr Dunstan. The proposition that Mr Higham's final report, which was in evidence in the proceeding before Besanko J, had been fabricated, or was only created in 2007 for the purpose of misleading the court, was never put to Mr Higham when he gave evidence in either the proceeding before Besanko J or the proceeding before Burns J. Nor does it appear to have featured in Mr Dunstan's submissions in either of those proceedings. The fact that Mr Dunstan has recently realised that he should have put his case differently in the earlier proceedings provides no justification whatsoever for permitting Mr Dunstan to effectively reagitate, in this proceeding, his previously rejected claims that Mr Higham lied in the earlier proceedings.
169 Mr Dunstan's pleading, as amended, also purports to identify four further fresh facts upon which this proceeding is based. Those four supposedly fresh facts may be dealt with shortly.
170 The first fresh fact was said to be the concealment of the fourth "day book" containing Dr Molineux's notes. That is not a fresh fact. It is an allegation which, as already noted, rises no higher than bare speculation or conjecture.
171 The second fresh fact was said to be Mr Higham's draft report dated 11 July 1997. It is difficult to see how that could possibly be a fresh fact given that it was discovered in the proceeding before Besanko J and was in evidence in the proceeding before Burns J: see Dunstan v Higham CA at [44].
172 The third fresh fact was said to be the concealment of the two file notes made by Mr Donaldson. That again is not a fresh fact. As discussed earlier, a claim of legal professional privilege was made in respect of those file notes in the proceeding before Besanko J. That privilege claim was not disputed or contested and there is no reason why it should be revisited. Mr Dunstan did not demonstrate that there was any legitimate basis for re-visiting or going behind that previously unchallenged privilege claim.
173 The fourth fresh fact was said to be the apparent erasure of a line in a version of Dr Molineux's notes which was produced in separate proceedings. As previously discussed, even if a line of that version of the notes was erased, Mr Dunstan's apparent claim that the erasure was fraudulent or concealed a material fact is entirely speculative. There is no basis whatsoever for inferring that the erased portion of the note could or would assist Mr Dunstan's case. Indeed, it is readily apparent that the line that was erased was a fax header, the content of which is entirely irrelevant.
174 It follows that Mr Dunstan's contention that he has come into possession of fresh facts or evidence following the proceeding before Burns J has no merit whatsoever.
175 The upshot is that, even if there is any material difference between the claims and allegations that Mr Dunstan raises in this proceeding and those that he raised in the proceedings in the ACT Supreme Court, Mr Dunstan has failed to demonstrate that there is any reasonable justification for him not having raised those claims in the earlier proceedings in the ACT Supreme Court. He is accordingly also estopped from raising them in this proceeding on the basis of the principles in Anshun.
176 I should also make clear in this context that, even if Mr Dunstan was not issue estopped or Anshun estopped from raising, in this proceeding, the allegations against Mr Growder, Ms Orr, Mr Higham, Dr Molineux and the Commonwealth which form the basis of his claim that the Commonwealth breached his duty of care, I would nonetheless conclude that it would be an abuse of process for him to do so. I will, however, separately address the question of abuse of process in the context of the proceeding as a whole.
177 There are other fundamental problems with Mr Dunstan's pleaded case in respect of the allegation that the Commonwealth breached its duty of care. Given the findings I have made in respect of estoppel it is unnecessary to discuss those problems in any detail. It suffices to note that it is not entirely clear how it is alleged that the Commonwealth breached its duty of care even if it is established that Mr Growder, Ms Orr, Mr Higham and Dr Molineux gave false evidence as alleged. It is not, for example, clearly alleged that the Commonwealth knew, or ought reasonably to have known, that the evidence given by those witnesses was false. The pleading also does not state any material facts, as opposed to bare assertions, capable of supporting the very serious allegation that the Commonwealth knew or ought to have known that the witnesses gave false evidence. The same can be said concerning the very serious allegations that the Commonwealth and its legal advisers fraudulently failed to discover documents, or concealed evidence and documents in the course of the litigation. Mr Dunstan's pleadings in relation to those allegations do not rise above bare assertion.