Dunstan v Orr

The Court has a power to make a vexatious proceedings order

1. The Court's power to make a vexatious proceedings orders is in s 37AO of the Federal Court Act, which relevantly provides as follows:

37AO Making vexatious proceedings orders

(1) This section applies if the Court is satisfied:

(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2) The Court may make any or all of the following orders:

(a) an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c) any other order the Court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

...

(6) For the purposes of subsection (1), the Court may have regard to:

(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b) orders made by any Australian court or tribunal; and

(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

1. The consequence of making a vexatious proceedings order under s 37AO(2)(b) is that the person the subject of the order must apply for leave to institute proceedings (or, if the order is limited, proceedings of the particular type nominated in the relevant order): s 37AQ.
2. The four "cumulative conditions" under s 37AO(1)(a) are that a person has: (1) frequently; (2) instituted or conducted; (3) vexatious proceedings; (4) in Australian courts or tribunals: Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318 at [20].
3. A proceeding that is an "abuse of process" or that is "instituted or pursued without reasonable ground" is a "vexatious proceeding": s 37AM(1).
4. Once the statutory preconditions to the making of an order under s 37AO are satisfied, the power to make the order and the terms on which it is made are discretionary: Luck v Secretary, Services Australia (Vexatious Proceedings Order) [2025] FCAFC 103 at [13].
5. As explained by the Full Court in Ferdinands v Registrar Burns (Vexatious Proceedings Order) [2024] FCAFC 157 at [31], in determining whether a litigant has commenced proceedings which were vexatious, in that they constituted an abuse of process or were instituted or pursued without reasonable grounds:

the Court is not required to make findings about the facts in issue but rather, to take account of the record and make an assessment as to its character. Section 91 of the Evidence Act 1995 (Cth), which provides that evidence of a decision, or of a finding of fact in another proceeding, is not admissible to prove the existence of a fact that was in issue in that proceeding, does not preclude this Court from relying on the orders and reasons for judgment in other proceedings for the purposes of considering whether a proceeding is vexatious (and hence whether s 37AO(1) is engaged).

Mr Dunstan has frequently instituted vexatious proceedings

1. Mr Dunstan has frequently instituted vexatious proceedings. This conclusion is based solely on what has been described earlier as the "ATO litigation", and includes the following proceedings:

(a) The "Besanko J Proceedings":

(i) Dunstan v Orr [2007] FCA 652 (Mansfield J);

(ii) Dunstan v Orr [2007] FCA 873 (Buchanan J);

(iii) Dunstan v Orr [2008] FCA 31; 217 FCR 559 (Besanko J); and

(iv) Dunstan v Orr [2008] FCA 736 (Stone J);

(b) The "Stone J Proceedings":

(i) Dunstan v Holland [2008] FCA 1450 (Stone J);

(c) The "Burns J Proceedings":

(i) Dunstan v Highman [2010] ACTSC 133 (Jagot J);

(ii) Dunstan v Higham [2014] ACTSC 206 (Burns J);

(iii) Dunstan v Higham [2016] ACTCA 20; 310 FLR 58 (Murrell CJ, Penfold and Rangiah JJ);

(iv) Dunstan v Higham (No 2) [2016] ACTCA 28 (Elkaim J).

(v) Dunstan v Higham [2016] HCASL 308 (Bell and Nettle JJ);

(vi) Dunstan v Higham (No 3) [2020] ACTCA 50 (Mossop J); and

(vii) Dunstan v Higham [2021] HCASL 43 (Keane and Edelman JJ);

(d) The "Wigney J Proceedings":

(i) Dunstan v Orr [2022] FCA 1006 (Wigney J);

(ii) Dunstan v Orr [2022] FCA 1589 (Burley J); and

(iii) Dunstan v Orr (No 2) [2023] FCA 1536 (Wigney J);

(e) The "Thawley J Proceedings":

(i) Dunstan v Morgan [2024] FCA 982 (Kennett J); and

(ii) Dunstan v Orr [2025] FCA 858 (Thawley J).

1. Without restating in detail the circumstances of the ATO litigation - which are summarised in [2023] FCA 1536 and [2025] FCA 858 - Mr Dunstan has repeatedly sought to relitigate issues connected with his suspension from duties at the ATO that have either already been finally determined or should have been raised in earlier proceedings. He continues to prosecute claims concerning, among other things: the circumstances in which his duties associated with the ATO were suspended; the subsistence of privilege in certain documents; alleged deliberate concealment of documents; and the supposed procurement of judgments by fraud.
2. The ongoing pursuit of these issues is an abuse of process and is vexatious in circumstances where: (a) the issues have been decided or should have been raised in earlier proceedings; and/or (b) the pursuit of the issues by asserting the judgments were procured by fraud enjoys no prospect of success.
3. Although the proceedings comprising the ATO litigation are not especially numerous, the term "frequently" is relative and contextual, and a small number of proceedings can suffice to enliven the Court's power if those proceedings relitigate issues previously determined: Storry (Vexatious Proceedings Order) at [66]. Mr Dunstan submitted that his applications were not as numerous as those in other cases where vexatious proceedings orders have been made. Whilst that may be accepted, the real issue is whether the conditions for making the order are satisfied and, if so, whether an order should be made and in what form.
4. Although Mr Dunstan enjoyed some success in the "Comcare litigation", and the proceedings in that litigation are not vexatious, that does not immunise the ATO litigation from constituting "vexatious proceedings". Mr Dunstan was represented in most of the Comcare litigation. It concluded more than 10 years ago.
5. Mr Dunstan has instituted vexatious proceedings sufficiently often in Australian courts to satisfy the conditions in s 37AO(1).

1. It is appropriate to make an order under s 37AO(2)(b). While the making of such an order is a serious matter for Mr Dunstan, it is necessary and appropriate to protect the Court and the respondents from the expense and waste of time involved in adjudicating repetitious proceedings initiated by Mr Dunstan. It is not in the interests of justice that Mr Dunstan be allowed to continue to prosecute proceedings which are an abuse of process. It is relevant that the individual respondents in the present proceeding have been respondents to Mr Dunstan's claims since the Besanko J Proceedings, which were initiated in 1997. They are now in their 70s. One has died.
2. As the Full Court observed in Laverack (Formerly AZO24) v Commonwealth of Australia (Vexatious Proceedings Order) [2025] FCAFC 162 at [29], the "import of s 37M(3) of the Federal Court Act requires that the Court not remain passive and [that it] take appropriate steps to identify early and quell abuses of the Court's processes".
3. The likelihood is that, absent an order under s 37AO(2)(b), Mr Dunstan will continue to attempt to litigate issues which ultimately stem from his suspension from duty at the ATO. In substance, Mr Dunstan has had some application or other on foot concerning his suspension from duty at the ATO since he commenced the Besanko J proceedings, which were dismissed on 25 January 2008. Mr Dunstan has made it clear that his intention is to pursue the issues, including those which arise out of the proceedings in which he has been involved. This is in part because of Mr Dunstant's apparent belief that his pursuit of these issues is in the public interest.
4. Mr Dunstan submitted that his case was distinguishable from other cases in which vexatious proceedings orders were made because he is litigating in the public interest: T21.20-3. He stated that he was "not fixated on what happened to me", but rather "fixated on what these people have shown in trying to get rid of my litigation, and the fact that they held very senior and very powerful positions in an organisation with very large revenues at stake and under their control": T20.12-5. He submitted that he "might be fixated on a problem, but not something that's trivial and baseless": T35.7-8. In apparent support of this and other submissions, he tendered the following newspaper articles:
   • Baker R, "Crime Gangs Rort $5 Billion in Tax Office Refunds", The Age (25 March 2007), which Mr Dunstan emphasised was not published until May 2008 "for some unknown reason": T35.14;
   • Chenoweth N, "'Absolutely Rampant': How the ATO Missed a $4.6b Crime Wave", Australian Financial Review (14 August 2023);
   • "ATO GST Scam Rocks Public Sector as Taxpayer Losses Hit $2 Billion", The Hellenic Australian Insight (9 July 2025); and
   • Baker R and McKenzie N, "Criminals Get the Drop on Customs as Syndicates Track Progress of Drug Shipments", Sydney Morning Herald (29 March 2012).
5. Obviously enough, the subject matter of these articles post‑dates the events in 1997 by some considerable time. Mr Dunstan stated that, in his affidavit in the Besanko J Proceedings, Mr Higham, had stated, "In October 1997, I became the assistant commissioner for information technology in a tax reform project". Mr Dunstan submitted that the tax reform project was the GST system. He stated (T34.24-28):

My submission is that, based on what I've read out, is it would be inappropriate to make a vexatious litigant order on the basis of authorities where a person has been fixated on a particular problem that affected them. I'm not fixated on a problem that affected me in 1997. I mean, the most recent of these articles was from July 2025. So there's a serious problem.

(a) asserted that the Australian Government Solicitor made the decision to "delete" evidence relevant to a case (AS[46]); claimed costs for a meeting that it knew never took place (AS[48(b)]); resiled from an undertaking (AS[48(d)]); and is in breach of its obligations under the Legal Services Direction 2017, because it is requiring him to prove that the Commonwealth committed fraud, which he says it knows to be true: AS[58(g)].

(b) submitted that there was some connection between the way litigation with him had been conducted and instances in which the ATO was defrauded, as well as the circumstances in which his duties were suspended: T32-5.

(c) asserted that various judicial officers that decided his cases have engaged in misconduct, including "tactics ... intended to prevent proof" of his claim and "improperly and deliberately" omitting his "real argument" in an attempt to "sheet home [to Mr Dunstan] responsibility for the use of Court resources": AS[58(h)(iii)]; AS[59(c)(iv)].

1. Mr Dunstan distinguished himself from the litigant in Storry v Parkyn [2024] FCAFC 67 who was described as "indefatigable". Mr Dunstan submitted that it was not necessarily a bad thing to be "indefatigable", given that someone who is indefatigable, is someone "assiduous, diligent, dogged, energetic, inexhaustible, painstaking, relentless, tireless, unflagging, unwavering, and vigorous". Mr Dunstan accepted he was assiduous; capable of hard work, care, and attention to detail; and that he was diligent and painstaking, but did not claim to be inexhaustible and tireless: T35. He said this was reflected in his "demonstrated unwillingness to engage in litigation": T35.35-6. He also submitted that, when he was "required to" engage in litigation, he preferred to do so with the benefit of legal counsel: T35.36. Mr Dunstan has been represented in a number of cases. I do not accept that Mr Dunstan has demonstrated "an unwilling to engage in litigation" or that he has been "required to" engage in litigation.
2. Mr Dunstan's success in the Comcare litigation does not weigh heavily against making an order under s 37AO(2)(b) for the reasons given at [15] above.
3. Mr Dunstan was asked whether an order under s 37AO(2)(b) should be made in some limited form, including by reference to the respondents in this proceeding or classes of respondents or by reference to the connection with the events in the ATO in 1997. In response, Mr Dunstan indicated that the identification of classes of respondents against whom litigation should be prohibited without leave would be "more complex than just a bare-bones order" and that a possible limitation would be only to commence proceedings if he was legally represented and there was a certificate from a solicitor stating that the solicitor considered the case has merit: T55-6. On balance, I consider that the issue raised by Mr Dunstan is better considered as a factor relevant to a decision whether to grant leave under s 37AT(3).
4. The Comcare litigation also does not weigh heavily in the decision whether to make an unlimited or limited form of order, given that Mr Dunstan confirmed that there is no realistic prospect of further litigation in this stream.
5. In my view, the appropriate form of order is an unlimited one. Mr Dunstan's allegations focus not only on the circumstances surrounding his suspension from his duties at the ATO, but also the subsequent conduct of various persons, and a supposed broader suspicion of fraud or something seriously wrong. Mr Dunstan mentioned individuals other than the present respondents in his submissions as potentially being involved, although he submitted that he was not making an allegation, only that there was "a suspicion that something has gone wrong" or that there was "evidence that something has gone seriously wrong" and the individual "happened to be at both agencies [the ATO and Customs] where serious things went wrong": T33.37. Mr Dunstan has previously made serious allegations against the respondents' legal representatives in the present case.
6. It is difficult in these circumstances to make an order limited to certain identified classes of respondents or to subject matters connected with the issues in the proceedings which have been held to be an abuse of process. An order which was limited by reference to a connection with the events which occurred at the ATO in 1997, or with subsequent litigation, is likely to be met with an argument that there is no connection and the issue is new.
7. If Mr Dunstan has a genuine grievance not connected to the substratum of facts previously litigated, or the conduct of the ATO litigation in which Mr Dunstan has been involved, it is hard to see why he would not be granted leave to bring proceedings under s 37AT(3).
8. Although the Court has the power under s 37AO(2)(a) to order a stay of Mr Dunstan's extant application for leave to appeal against the orders made on 25 July 2025 in [2025] FCA 858, such an order should not be made in circumstances where Mr Dunstan was not forewarned of the possibility and has not been given the opportunity to provide considered submissions on the issue. The respondents did not submit that such an order should be made.

Mr Dunstan's other submissions should be rejected

1. Mr Dunstan made several other submissions which should also be rejected for reasons set out below.
2. First, I understood Mr Dunstan to submit that apprehended bias arose from my decision to initiate a process of determining whether to make a vexatious litigant order, stating that I "deliberately misrepresent[ed his] litigation so as to resemble" other cases in which a vexatious proceedings order was made, so as to give "rise to a reasonable apprehension on the part of a fair-minded observer that your Honour may not bring an impartial mind to the adjudication of the issues": T16.30-33.
3. Mr Dunstan's submission must be rejected. A reasonable bystander would conclude that the decision to commence the process of determining whether an order under s 37AO should be made arose directly from a consideration of the circumstances of Mr Dunstan's case and the history of litigation. The reference in the reasons for judgment in [2025] FCA 858 to authorities on the topic would not be construed by a reasonable bystander as a judicial attempt to make Mr Dunstan's litigation resemble the facts underling those authorities. As was made clear to Mr Dunstan, the process was commenced in order to determine whether an order under s 37AO should be made. There is no basis on which a fair‑minded observer might reasonably apprehend that I might not bring an impartial mind to the decision whether to make an order under s 37AO(2)(b).
4. Secondly, Mr Dunstan made various submissions about errors in the judgment of Wigney J, passages of which were extracted in my judgment: T7-12. He submitted that his criminal conviction was for 9 years, not 11 years. He submitted that Wigney J "recklessly and gratuitously used" 11 years. He further submitted that regard should not have been had to the conviction in any event, because it was a spent conviction and he had not put it in issue: T6. He submitted that "both Wigney J and Thawley J disclosed and took into account that the applicant was charged with or convicted of offences", which was prohibited by s 85ZW of the Crimes Act 1914 (Cth): T8-11.
5. It does not matter to the determination of the present issues, whether there was any error in those aspects of Wigney J's judgment or in my judgment setting out parts of that judgment. Those matters were mentioned for background only and were not a material consideration in Wigney J's decision to dismiss Mr Dunstan's application. Nor were they material in my decision to dismiss his proceedings seeking to set aside the orders made by Wigney J on the basis that those orders had been procured by fraud.
6. Thirdly, Mr Dunstan submitted that I breached s 35A(4) of the Federal Court Act, in that I allegedly directed or controlled a Registrar in the exercise of his or her powers to prevent the acceptance for filing of Mr Dunstan's amended statement of claim the day before the hearing of the application for summary dismissal.
7. At the time Mr Dunstan lodged his amended statement of claim, it was uncertain whether leave was required. No decision was made about whether to accept the document for filing and Mr Dunstan was informed that the issue would be addressed at the hearing the following day. There was no breach of s 35A(4) and no unfairness to Mr Dunstan in circumstances where the amended statement of claim was accepted for filing after the hearing (and taken to have been filed the day before the hearing) and his application was dismissed having regard to the terms of the amended statement of claim.
8. Fourthly, Mr Dunstan argued that he had been prevented from proving his case because the respondents had not been required to file a defence to his statement of claim prior to the hearing of the application for summary dismissal. He said that if the respondents had been required to file a response, their model litigant obligations would have bound them to admit various matters that they knew to be true.
9. Mr Dunstan's submission must be rejected. It was appropriate not to require a defence to be filed to the statement of claim in circumstances where the statement of claim was alleged to be deficient and an abuse of process, and there was an application for strike‑out and summary dismissal of it. The reasons why an order was made for judgment to be entered in the respondents' favour (after the process contemplated by orders 4 to 8 made on 25 July 2025) are contained in the reasons published that day.
10. I should note that Mr Dunstan repeatedly referred to, and appeared on occasion to read from, affidavits or material that he expressly disavowed reliance on but considered informed his submissions. Mr Dunstan submitted that the material showed that my decision to dismiss his application summarily was premature "because there has been no hearing looking at the evidence of all of the problems with the judgment of Wigney J": T12.20-21.
11. I informed Mr Dunstan that I could not have regard to evidence that was not before the Court. Mr Dunstan appeared to understand that to be the case.

1. An order should be made under s 37AO(2)(b) in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), Mr Colin George Dunstan be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the Federal Court Act.

I certify that the preceding forty‑three (43) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Thawley.