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Letter-bomber’s suit an abuse of process

A man who was suspended from the Australian Tax Office (ATO) in 1997, and who then sent letter bombs to those involved in his suspension, has lost his latest bid to sue the Commonwealth.

In what Federal Court Justice Wigney called “the latest in a long and tortuous series of proceedings”, ACT man Colin Dunstan alleged senior public servants and the Commonwealth had colluded to have him terminated from the public service.

In a 61-page decision published on Thursday, Justice Wigney said it would be “an affront to the administration of justice to permit Mr Dunstan to pursue the proceeding any further”.

Since his suspension over systems violations, Mr Dunstan, who served nine years in prison for the explosives offences, has initiated numerous proceedings about the events and circumstances that led to his suspension.

In 1997, he lodged a complaint with the Human Rights and Equal Opportunity Commission against ATO officers. The Commission opted not to investigate, then Mr Dunstan sought a judicial review in 1997, with the complaint eventually heard and dismissed in 2005.

Also in 1997, Mr Dunstan also began a private prosecution against two of the officers. The Commonwealth Director of Public Prosecutions eventually took control of that prosecution, with the charges dismissed in 1998.

In 1998, Mr Dunstan began Federal Court proceedings, challenging decisions made by those involved in his dismissal. This matter was eventually heard and dismissed in 2008.

In 2010, Mr Dunstan began proceedings in the ACT Supreme Court against ATO officers and the Commonwealth, alleging misfeasance and breach of his employment contract. This matter was eventually heard and dismissed in 2013. An appeal was dismissed in 2016.

The most recent proceedings were initiated in 2021 with an originating application and concise statement which were “extremely confused and confusing”, then a statement of claim which was “prolix, convoluted, ambiguous and inconsistent”, Justice Wigney said.

“His pleadings, evidence and submissions do little more than reagitate, rehash or repackage serious allegations of fraud that were categorically rejected in the prior litigation in circumstances where nothing of substance has changed and no material fresh facts have emerged,” he said.

Mr Dunstan – whose employment was terminated in 2001 by reason of his conviction – alleged the Commonwealth was negligent because the officers involved in his suspension gave false evidence and concealed documents, and so the judgment against him was procured by fraud and should be set aside.

The Commonwealth and three officers Mr Dunstan alleged to have given false evidence sought summary judgment in their favour or to have Mr Dunstan’s pleading struck out.

They contended his case had no reasonable prospect of success, that no reasonable cause of action had been disclosed, that he was estopped from raising the allegations, and that the proceeding was otherwise an abuse of process.

Justice Wigney agreed, and under Section 31A of the Federal Court of Australia Act 1976 (Cth) and Rule 26.01 of the Federal Court Rules 2011 he ordered judgment be entered against Mr Dunstan for the whole of the proceeding.

“It would, on any view, be demonstrably and unjustifiably oppressive to the parties to this proceeding to permit Mr Dunstan to vex them for a second or even third time in respect of his claims and allegations concerning his suspension from work and charging under the Public Service Act over 25 years ago,” he said.

“It would also be manifestly contrary to the public interest in the finality of litigation and would bring the administration of justice into disrepute.”

Justice Wigney added Mr Dunstan’s pleading was “manifestly deficient and defective, particularly given the serious allegations it contains”.

“While I have endeavoured to make sense of the pleading, it is readily apparent that the serious allegations of fraud made against the respondents are not pleaded with sufficient specificity and clarity to convey to the respondents the precise case that they have to meet,” he said.

“Rather, the pleading contains a series of bare conclusions or broad and sweeping allegations without adequate particularisation.  It is also in parts vague and ambiguous and the key elements of the supposed causes of action are not properly pleaded.

“Were it necessary for me to do so, I would have concluded that most, if not all, of the serious allegations in the pleading could appropriately be characterised as vexatious, scandalous, and embarrassing in the requisite sense referred to earlier in these reasons.”

Justice Wigney also ordered Mr Dunstan pay the respondents’ costs.

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