Table of Contents

• A. Applicant’s Material & A Preliminary Matter: The issue of legal professional privilege and waiver.
• B. Introduction: The grounds for setting aside the judgment in Dunstan v Orr (No 2) [2023] FCA 1536.
• C. Legal Principles: The high threshold for summary judgment and Mortimer CJ’s recent standards.
• D. Submissions: The chronological paper trail of institutional overreach and litigation fraud.
• E. Conclusions: Why the Respondents’ application must be dismissed.

A. Applicant’s Material & A Preliminary Matter

The Applicant reads and relies upon his principal affidavit affirmed 20 January 2025, his substantive affidavit affirmed 14 May 2025, and his supplementary affidavit affirmed 14 May 2025.

A preliminary issue of critical legal significance arises from paragraph [6] of Ms McKean’s affidavit dated 14 March 2025. Ms McKean asserts a blanket, cautionary claim that she is not authorized, and does not intend, to waive any legal professional privilege of the Respondents.

This statement highlights a profound lack of proportion:

1. The Objective Reality: This proceeding arises from the documented conduct of a handful of senior ATO officers who became fixated on preventing an experienced Database Administrator from performing his technical duties decades ago. It is incredulous that the ATO continues to hide behind claims of privilege over historical files that have already been legally exposed.
2. The Waiver of Privilege: Many documents which the Respondents claim are subject to privilege are no longer privileged. The privilege was voluntarily and permanently waived by previous communications. On 28 April 2025, the Applicant wrote to Ms McKean attaching clear proof of these waivers. This included the 12 June 1997 documents (waived by the AGS on 6 August 1999) and various redacted portions of the 1997 minutes.
3. The Evasive Denial: Mr Pipola of Ashurst Australia replied on 9 May 2025, flatly denying that privilege was waived and declining to review the redacted documents. The Applicant requests that the Court direct the Respondents to provide unredacted copies of all documents where privilege has historically been waived.

B. Introduction

The Applicant commenced this proceeding in the original jurisdiction of the Federal Court of Australia on 30 August 2024. In this proceeding, the Applicant claims that the summary dismissal judgment of Wigney J in Dunstan v Orr (No 2) [2023] FCA 1536 is fundamentally vitiated by errors of law, including:

4. That the Court failed to decide access to documents in accordance with the law of waiver — a prior waiver cannot be retroactively extinguished by a subsequent claim of privilege.
5. That the Respondents’ application for summary dismissal was granted without any proper or impartial consideration of the Applicant’s pleadings, written submissions, or supporting evidence.
6. That the Respondents’ legal representatives submitted a highly deceptive and misleading affidavit (McKean 14 March 2025) alleging that the 1997 dispute was about the Applicant “accessing restricted electronic data held by the ATO.” This is a fabricated and scandalous accusation designed to improve their prospects of summary dismissal.

Contemporaneous notes from a meeting between Personnel Manager John Whyte and HR Advisor John Molyneux in early 1997 expose the true, highly personal nature of the dispute. The notes record their raw opinions: “Complex personality… Won’t go away… Tangled up in legal situation… We are defending the people… VR [Voluntary Redundancy] considered… Inefficiency considered… Discipline considered: e.g. absent from workplace.”

There is absolutely no mention of any computer security breach or restricted database access. The disciplinary “security threat” narrative of June 1997 was a subsequent, bad-faith pretext manufactured to lock the Applicant out of the workplace.

C. Legal Principles

The threshold for summary dismissal under s 31A of the Federal Court Act is exceptionally high. As Mortimer CJ recently re-emphasized in Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458:

“…Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on a factual issue.”

Mortimer CJ noted that s 31A is not a license for respondents to pluck specific legal aspects of an applicant’s case out of context to avoid a full trial of the facts.

Furthermore, the doctrine of “fraud unravels all” (Park v CNH Industrial Capital Europe Ltd [2021] EWCA Civ 1766) dictates that a party is not entitled to retain a judgment if they have introduced fraudulent or misleading evidence into the case, even if they could have succeeded without that element. Fraud vitiates the entire proceeding.

D. Submissions

The Respondents and their legal representatives have engaged in a persistent, decades-long pattern of litigation misconduct, violating their strict statutory Model Litigant Obligations:

7. The 1999 Weinberg Deception: The ATO completely concealed Barbara Benson’s 24 November 1998 delegation and decisions to pay the Applicant hardship payments to 31 March 1999. They instead filed a false affidavit from Greg Farr claiming he made a “new” decision on 5 August 1999, ensuring the Federal Court and the Applicant remained blind to the true, valid decisions.
8. The 2007 Besanko Deception: The Respondents completely suppressed the 29 July 1997 Higham Minute clearing the Applicant of misconduct. By hiding this exculpatory document, they prevented Besanko J from evaluating the core decision that legally required the Applicant’s immediate recall to duty.
9. The 2013 Burns Deception: The Respondents filed an affidavit from John Higham containing the highly misleading claim that he was “surprised” by Tony Burslem’s legal advice on 29 July 1997. In truth, Higham, Whyte, and Burslem had met on 14 July and agreed on the advice; Higham was expecting the written minute and wrote his July clearance in direct response to it.
10. The 2022 Wigney Evasion: Wigney J conducted no independent analysis of my case. He uncritically “cut and pasted” Ashurst’s misleading submissions into his judgment. He claimed my Statement of Claim alleged a “conspiracy to terminate employment” (which was never pleaded) and asserted that the Higham Minute privilege claim was decided by the ACT Court of Appeal (ignoring that my claim was based on the subsequent 2 July 2007 waiver).

The Respondents have chosen not to file a defence or deny any of the factual allegations in my Statement of Claim. In the absence of a denial, these allegations must be taken as true. Summary judgment is an occasion to determine if there is a triable issue, not to conduct a mini-trial of complex and disputed facts.

E. Conclusions

The Respondents’ application for summary judgment and strike-out of pleadings is a desperate attempt to avoid a public trial of their documented litigation fraud.

The Applicant requests that the Respondents’ application be dismissed with costs, and that the matter proceed to trial in the ordinary course.

Dated: 15 May 2025

Colin Dunstan
Applicant in Person