Dunstan v Seymour

REASONS FOR JUDGMENT (revised from transcript) 1 I have before me this afternoon two notices of motion filed in matters AG31 of 1997 and AG32 of 1997 by Mr Colin Dunstan. In each motion Mr Dunstan seeks an order setting aside orders for costs made against him by Justice Finn on 14 September 1998. Mr Dunstan contends that I ought to set aside the cost orders upon the ground that they were procured by fraud. 2 The substance of Mr Dunstan's claim that the cost orders were procured by fraud is that he says that an affidavit sworn by Mr Burslem on 27 August 1998 contained a material misrepresentation as to the basis upon which a private prosecution commenced by Mr Dunstan was referred to the Commonwealth Director or Public Prosecutions ("the Commonwealth DPP"). He says that the statement in the affidavit, to the effect that Mr Thomas indicated to the court that Mr Dunstan would write to the Commonwealth DPP to request that they take over the prosecution, was at very least misleading, and on Mr Dunstan's submission, sufficiently misleading to constitute fraud. 3 It is well established that if an order of the court is procured by fraud there is power in the court to set aside the order and indeed that it ought to be set aside. 4 Mr Dunstan also relies upon information, which he says he gleaned from the defendant's bill of costs to the effect that there were discussions on 24 June 1998 and 21 July 1998 between the Commonwealth DPP and the defendant in relation to the issue of a potential costs order in the matter being obtained against the Commonwealth DPP. Mr Dunstan contends that the conversations were undertaken in collusion between the Commonwealth DPP and the Australian Government Solicitor for the purpose of avoiding a cost order against the Commonwealth DPP and ensuring that the costs order was made against Mr Dunstan. 5 Mr Dunstan has put in evidence the transcript of a pre-trial conference which took place before Finn J on 13 May 1998. On page 3 of the transcript his Honour asked the question as to whether the Commonwealth DPP had been informed of the proceedings. His Honour stated that it was a matter in respect of which the Commonwealth DPP could take an interest. 6 Mr Thomas of counsel represented Mr Dunstan at the pre-trial conference on 13 May 1998. At page 4 of the transcript Mr Thomas said that it seemed that something needed to be drawn to the attention of the Commonwealth DPP and indeed that that had caused some delay in the proceedings. Mr Thomas went on to say at page 5 of the transcript of the same date that the appropriate course would be for Mr Dunstan as the informant to draw the proceedings to the attention of the Commonwealth DPP and put the strongest case forward for the Commonwealth DPP to either take up the offer and run the matter or to decline to do so and leave it in the informant's hands. He also said that that would give a way of putting the best case forward to the Director. Mr Thomas proceeded to say that so far as his Honour Finn J was concerned the matter may go away and if the course proposed was agreeable to all the parties he would arrange for the matter to be referred to the Commonwealth DPP as soon as possible. 7 The matter was again before Finn J on 28 August 1998. Mr Dunstan appeared for himself in both of the matters of concerning the defendants' Growder and Seymour. Mr Oakey of the Commonwealth DPP appeared before his Honour on that date. Mr Oakey said at page 34 of the transcript that in May 1998, as he understood it, at a pre-trial conference, Mr Thomas raised the possibility that the matter ought to be referred to the Commonwealth DPP and that was done. Mr Oakey informed his Honour that the Commonwealth DPP had considered the matter and that the Commonwealth DPP had made a decision that he should take over the proceedings in matters AG31 of 1997 and AG32 of 1997 and to decline to carry on those proceedings. 8 The costs argument took place before Finn J on 14 September 1998, that is to say the same date on which the cost orders were made. Mr Thomas appeared before his Honour on that date. At page 3 of the transcript Mr Thomas said that he did not understand that the matter was coming on for argument on that date. Mr Dunstan says that he did not have sufficient time to give Mr Thomas instructions or to sufficiently discuss the matter with Mr Thomas prior to the hearing on 14 September 1998. 9 Nonetheless, Mr Thomas informed his Honour that there had been discussions between counsel in relation to the question of costs. He mentioned that one basis upon which costs could be awarded was a party and party basis. The reference to the word "avoided" at line 23 on page 3 of the transcript is an error and it can correct by substituting the word "awarded". 10 Mr Thomas made the point to his Honour that not a great deal of court time had been spent on the matter. He said that he had sought some instructions and that it really was, perhaps, a question of quantum. He mentioned that counsel had indicated a ballpark figure and stated that it may be possible to resolve the matter by negotiation. 11 At page 4 of the transcript of 14 September 1998 his Honour stated that if the matter could be settled by agreement he would be happy for that to happen. He indicated that it is a matter in which it would be difficult for Mr Thomas to resist a costs order. Significantly, Mr Thomas stated that he did not disagree with his Honour's remarks. Mr Stretton, who appeared for the defendant in both of the motions, submitted that Mr Thomas put no substantial argument against the costs order on 14 September 1998. Mr Thomas, of course, must be taken to have been acting on Mr Dunstan's instructions. Although the transcript discloses that Mr Thomas was not entirely prepared for the argument, it cannot be suggested, in my view, that if there was any misrepresentation which gave rise to the matters which brought about the costs order, Mr Thomas would not have put those matters to his Honour Finn J on 14 September 1998. 12 In my opinion, there is no basis for any suggestion that the costs orders made by his Honour on 14 September 1998, were tainted by fraud. I do not accept Mr Dunstan's submission that there was any collusion between the parties. The items appearing in the bill of costs, which indicate that there were some discussions on 24 June 1998, and 21 July 1998, cannot possibly give rise to any suggestion of collusion. Mr Thomas referred me to a recent authority in the High Court. The principle, which was adverted to in that case, is a well established principle, namely, that knowledge of fraud can be found where a person has wilfully shut his or her mind to the truth and abstains from inquiry. In my view, there is nothing in the evidence relied upon by Mr Dunstan to support such a finding in this case. 13 Mr Oakey, for the Commonwealth DPP, made the point that there was nothing misleading in what he said to his Honour Finn J, on 28 August 1998. Although Mr Oakey was not present at the pre-trial conference in 1998, it seems to me that what Mr Oakey said accurately reflects the transcript of 13 May 1998. Accordingly, as I think I've already said, any suggestion that the Commonwealth DPP was a party to any fraud or, indeed, any misconduct, is rejected. 14 I should make mention of the fact that Mr Dunstan relied on an anonymous letter to the Federal Court dated 21 May 2001. The letter stated that at the pre-trial conference on 13 May 1998, Mr Dunstan's counsel, Mr Thomas, suggested that it would be appropriate for the Commonwealth DPP to take over the prosecutions and discontinue them. Mr Stretton conceded that this was not an accurate statement of what Mr Thomas had, in fact, said. Whoever wrote the letter of 21 May 2002, may have misinterpreted Mr Thomas' words as an invitation to the Commonwealth DPP to discontinue. Nevertheless, I do not see that anything turns on this because it is perfectly clear that Mr Thomas was suggesting that the Commonwealth DPP be contacted with a view to taking over the conduct of the prosecutions. 15 For those reasons the motions in matters AG31 of 1997 and AG32 of 1997 are dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.