Colin Dunstan v John Higham ((First Respondent))

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Penfold,Rangiah JJ
• Judgment Date: 24 June 2016
• Docket Number: File Number: ACTCA 48 of 2014
• Date: 24 June 2016

[2016] ACTCA 20

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Murrell CJ, Penfold and Rangiah JJ

File Number: ACTCA 48 of 2014

Colin Dunstan

(Appellant)

and

John Higham

(First Respondent)

John Growder

(Second Respondent)

Robyn Orr

(Third Respondent)

Richard Highfield

(Fourth Respondent)

Geoff Seymour

(Fifth Respondent)

Commonwealth of Australia

(Sixth Respondent)

Representation:

Counsel

Mr J Burnside QC with Mr T Crispin (Appellant)

Mr G Stretton SC with Mr G McCarthy (Respondents)

Cases Cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167 (1990) 171 CLR 167

AIC Ltd v ITS Testing Services (UK) Ltd [2007] Lloyds Rep 555 [2007] Lloyds Rep 555

Allesch v Maunz (2000) 203 CLR 172 (2000) 203 CLR 172

Briginshaw v Briginshaw (1938) 60 CLR 336 (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67 (1893) 6 R 67

Cave v Robinson Jarvis & Rolf [2003] 1 AC 384 [2003] 1 AC 384

Commonwealth v Cornwell (2007) 229 CLR 519 (2007) 229 CLR 519

Devries v Australian National Railways Commission (1993) 177 CLR 472 (1993) 177 CLR 472

Dunstan v Orr & Ors [2008] FCA 31

Dunstan v Orr & Ors [2007] FCA 652

Dunstan v Orr & Ors [2007] FCA 873

East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605

Fox v Percy (2003) 214 CLR 118 (2003) 214 CLR 118

Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 (2012) 206 FCR 25

Paramasivam v Flynn (1998) 90 FCR 489 (1998) 90 FCR 489

R v Westminster City Council; Ex parte Ermakov [1996] 2 All ER 302 [1996] 2 All ER 302

Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 (2000) 96 FCR 533

Wagdy Hanna & Associates Pty Ltd v National Library of Australia (2012) 7 ACTLR 70

Williams v Fanshaw Porter and Hazelhurst (a firm) [2004] 1 WLR 3185 [2004] 1 WLR 3185

Legislation Cited:

Migration Act 1958 (Cth)

Public Service Act 1922 (Cth) (repealed) ss 61, 62 and 63C

Limitation Act 1985 (ACT) ss 11 and 33

Supreme Court Act 1933 (ACT) s 37E

Limitation Act 1980 (UK) s 32

Texts:

Lexis Nexis, Carter on Contract, vol 1 (at update 21) [12–020]

LIMITATION OF ACTIONS — action in misfeasance in public office, breach of contract, conspiracy and interference with contractual relations — whether the authorised officer made a decision to not charge the appellant with misconduct — whether internal document was evidence of a decision — where evidence of the authorised officer's intention was accepted by the primary judge — whether authorised officer's evidence admissible — whether any relevant fact was deliberately concealed — actual concealment or deliberate omission — motivation to conceal

Decision:

• 1. The appeal is dismissed.

• 2. The appellant pay the respondents' costs of the appeal.

THE COURT:

1 On 17 May 2010, the appellant, Colin Dunstan, commenced a proceeding in this Court claiming damages for misfeasance in public office, breach of contract, conspiracy, defamation and interference with contractual relations. On 27 August 2014, a single judge gave judgment for the respondents. This is an appeal against that judgment.

2 The appellant was a public servant working in the Australian Taxation Office (‘the ATO’). On 13 October 1997, the first respondent made a decision to charge the appellant with misconduct. That decision and events surrounding it are at the heart of the appellant's proceeding.

3 The first line of the respondents' defence was the limitation period, the proceeding having been commenced some 13 years after the events. The appellant argued that the respondents had deliberately concealed a relevant fact, such as to cause the limitation period to be postponed, but the primary judge rejected that submission. His Honour then proceeded to consider the appellant's causes of action on their merits, holding that none of them were made out.

4 The notice of appeal raises ten grounds, but three grounds were abandoned at the commencement of the hearing of the appeal. The appellant's oral submissions focused on the sixth ground, namely:

His Honour fell into error by finding that the National Office Minute was not a statutory decision for the purpose of the Public Service Act 1922 on the basis of the subjective intention of the first defendant.

5 The sixth ground deals with the primary judge's rejection of the appellant's argument that the limitation period had been postponed. The appellant submitted that a National Office Minute was a decision made by the first respondent on 29 July 1997 to not charge the appellant with failing to fulfil his duties as an officer. The argument continued that the first respondent was then functus officio; and the first respondent's subsequent decision on 13 October 1997 to charge the appellant was invalid. The appellant contended that the National Office Minute had been deliberately concealed from him, and that, under s 33(1)(b) of the Limitation Act 1985 (ACT), the limitation period did not begin to run until he obtained a copy of the Minute on 17 May 2009.

6 The appellant's counsel accept that the fate of the appeal rests upon the sixth ground. They advanced no oral argument upon the other grounds. To succeed, the appellant must demonstrate that the primary judge erred in holding that the limitation period had expired before the appellant commenced his proceeding.

Factual background

7 The appellant occupied a senior position in the ATO. In 1990, he commenced an intimate relationship with another ATO employee, but the relationship broke down in 1992. The appellant and the other employee made complaints about each other's conduct in the workplace. The appellant was dissatisfied with the responses of the ATO's management staff and commenced a number of legal proceedings against the ATO and its staff.

8 The appellant took extended sick leave for a psychiatric illness, before returning to work in late December 1996. In early June 1997, his supervisors became concerned that he may have engaged in ‘systems violations’ by attempting to access areas of the ATO's computer system that he was not authorised to access. They were particularly concerned that he appeared to have attempted to access the ATO's personnel system, including the records of a staff member against whom he had commenced legal proceedings. The appellant was suspended from duty and an investigation was commenced into his conduct. The investigator found that there was evidence that the appellant had engaged in systems violations which could potentially have had serious consequences for the ATO.

9 On 16 June 1997, the appellant met with management staff of the ATO and was handed a set of 19 written questions to answer. On 18 June 1997, the appellant provided the ATO with written answers. The appellant maintained that he was legitimately testing the computer system for weaknesses and legitimately ‘cutting and pasting’ source data, rather than seeking to access material he was not authorised to access.

10 On 26 June 1997, the first respondent, John Higham, was authorised under s 61(2) of the Public Service Act 1922 (Cth) (now repealed) to decide whether the appellant should be charged with failing to fulfil his duties as an officer. A charge of failing to fulfil such duties was referred to in s 62 of the Public Service Act as a charge of ‘misconduct.’

11 On 29 July 1997, Mr Higham wrote a document called a ‘National Office Minute’ concerning whether the appellant should be charged. The appellant alleged at the trial that the National Office Minute was a final decision that the appellant should not be charged with misconduct. However, Mr Higham's evidence was that he had not made a final decision, and that the Minute was intended to indicate only that, based on advice from the Australian Government Solicitor that there was no basis to charge, his final decision was likely to be to not charge the appellant.

12 The ATO subsequently obtained further legal advice from a barrister and provided that advice to Mr Higham. The advice was that there was a basis to charge the appellant. Mr Higham then made a decision on 13 October 1997 to charge the appellant with misconduct.

13 On 20 October 1997, the appellant was notified of the decision to charge him. He was suspended from his position without pay pending an inquiry into those charges under s 62 of the Public Service Act.

14 In December 1998, before the inquiry had been completed, there was a dramatic development. The appellant posted a number of letter bombs to senior officers of the ATO. One of the letter bombs exploded in the Canberra Mail Centre. The appellant was subsequently charged and convicted of a number of offences and sentenced to 11 years imprisonment, with a non-parole period of five years.

15 Unsurprisingly, the appellant's employment in the public service was terminated on 21 May 2001. Presumably, it was misconduct to send letter bombs to his supervisors.

16 Despite his conduct, the appellant continues to receive a Comcare benefit for his psychiatric illness. Since his release from prison, he has prosecuted a number of proceedings concerning events that occurred at the ATO.

17 Those proceedings have included an application for judicial review of the decision by the first respondent to charge him with misconduct, a decision by the third respondent to suspend him from duty and a decision by the second respondent to inform the third respondent that the appellant may have failed to fulfil his duties as an officer. The appellant made an interlocutory application for production of documents in respect of which legal professional privilege was claimed. One...