SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: / Dunstan v Higham (No 2)Citation: / [2016] ACTCA28
Hearing Date: / 20 July 2016
DecisionDate: / 27 July 2016
Before: / Elkaim J
Decision: / The application filed on 8 July 2016is dismissed.
The applicant is to pay the respondents’ costs of the application.
.Catchwords: / PRACTICE AND PROCEDURE – application to set aside Court of Appeal judgment – r 1613 (2)(d)Court Procedures Rules 2006 (ACT)
Legislation Cited: / Court Procedures Rules 2006 (ACT), rr 1613(2)(d), 6906
Supreme Court Act 1933 (ACT), s 37E
Cases Cited: / Autodesk Inc v Dyason(No2) (1993) 176 CLR 300
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd(No 2) [2013] HCA 44
Dunstan v Higham [2016] ACTCA 20
Gray v Richards(No 2) [2014] HCA 47
Hatton v Harris [1892] AC 547
State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Parties: / Colin George Dunstan (Applicant)
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
Self-represented (Applicant)
Mr Richard Knowles (Respondents)
Solicitors
Self-represented (Applicant)
Clayton Utz (Respondents)
File Number: / ACTCA48 of 2014
ELKAIM J:
1.The application before me was filed on 8 July 2016. The application seeks the setting aside of orders made in the Court of Appeal on 24 June 2016 (Dunstan v Higham [2016] ACTCA 20).
2.There was some debate about whether the orders had actually been entered. However I understood all parties to say the point was not significant to the issues before me. I have proceeded on the basis that the orders made by the Court of Appeal are those stated in paragraph 161 of the above judgment.
3.The application does not state the basis upon which it is made. Accordingly, at the outset of the hearing, I asked Mr Dunstan the basis upon which he put his application. He said it was primarily made under r 1613(2)(d) of the Court Procedures Rules 2006 (ACT), but he also relied upon r 6906.
4.R 6906 cannot apply to the breadth of the orders sought. The latter is usually described as the ‘slip rule’ and classically applies to an accidental mistake or omission. The applicant here is endeavouring to set aside the whole of the judgment as being wrong. Adopting the test referred to in Hatton v Harris [1892] AC 547 at 558, the question to be asked is: if the asserted errors had been brought to the court’s attention would there have been an immediate correction?The answer must be an unequivocal ‘No’. (See also Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453).In addition, the power under r 6906 must be used with “caution” (State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29. The major ‘overhaul’ requested in this application could not qualify for such an approach.
5.R 1613 is as follows:
(1)The court may amend or set aside an order before the filing of the order.
(2)The court may set aside an order at any time if –
(a)the order was made in the absence of a party; or
(b)the order was obtained by fraud; or
(c)the order is for an injunction or the appointment of a receiver; or
(d)the order does not reflect the court’s intention at the time the order was made; or
(e)the party who has the benefit of the order consents; or
(f)for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
(3)If the court sets aside an order, it may also set aside any order made to enforce the order.
(4)If the court set aside an order under subrule (3), the setting aside of the order does not affect the title to any property sold under the order before it is set aside.
(5)This rule does not apply to a default judgment.
(emphasis added)
6.In addition to his affidavits of 7 July and 18 July 2016, the applicant also relied upon written submissions. Like the affidavits, the submissions are a very detailed analysis of various judgments and evidence in the long history of the legal proceedings related to the dispute.
7.The only elucidation of how the order did not reflect the court’s intention at the time the order was made was the applicant’s assertion that the judges sitting on the appeal understood the submissions that were made but this understanding is not reflected in the judgment. This unusual assertion carries with it the circumstance that the applicant, sitting in court during the hearing, could discern the intention of the judges and then later be capable of comparing those intentions to the contents of the judgment.
8.There could be cases where the judges specifically state their intent to follow a certain course and then radically depart from that course in the judgment. This is not such a case. No such departure is evident here. The applicant seemed to be relying on a perception of the Court of Appeal’s intention. At one stage, the applicant even suggested I might ask the three judges what their thoughts had been.
9.He also referred to the judgment reflecting “...a misapprehension of decision making process and of the nature of human motivation”(paragraph 35 of the written submissions). The comment was directed at paragraph 136 of the judgment.
10.There is simply no basis upon which I could reach a conclusion that “the order does not reflect the court’s intention at the time the order was made”. This conclusion is enough to dismiss the application. However, in deference to theextensive preparation that Mr Dunstan obviously engaged in, I will make some further comments.
11.The applicant submitted that the approach to be taken was that stated by Mason CJ in Autodesk Inc v Dyason(No2) (1993) 176 CLR 300. The respondents did not disagree but pointed out that the High Court in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd(No 2) [2013] HCA 44 had perhaps narrowed the confines of this entitlement to relief.
12.The hearing in the Court of Appeal took place on 7 May 2015. The applicant was represented by Queen’s Counsel. It became clear early on in the hearing that there was one particular ground of appeal that overshadowed the others and needed to be established in order for the appeal to be successful.
13.This was Ground 6, which states:
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.
14.The importance of this ground was recognised by the applicant’s Queen’s Counsel. This is clear from paragraph 6 of the judgment. It states:
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.(See also Queen’s Counsel’s comments at P-27 [20] of the transcript).
15.In turn, the point that dominated both the trial and the appeal was as summarised in paragraph 39 of the judgment:
The central issue at the trial was whether Mr Higham had made a decision to not charge the appellant with misconduct on about 29 July 1997. Mr Higham’s evidence was that he did not make a decision to not charge the appellant, and in the National Office Minute he was indicating only what his decision was likely to be.
16.I note here that, unless otherwise stated, all references to ‘the judgment’ are references to the judgment in the Court of Appeal.
17.Fundamental to the difficulty faced by the applicant in this application is his apparent failure to appreciate the limited scope upon which the appeal was run.
18.The Court of Appeal set out the background to the matter as well as a detailed description of the proceedings before the primary judge.
19.The importance of the National Office Minute arose from the issue of whether or not it reflected a final decision having been made byMr Higham. If the minute was a final decision, and if that the decision had been concealed, then it may have led to a suspension of the limitation period governing the applicant’s entitlement to commence proceedings.
20.Because the primary judge, whose decision was confirmed on appeal, found that the minute did not amount to a final decision, the limitation period had well expired before the proceedings were commenced by the applicant.
21.It is clear from the judgment that considerable attention was paid to the evidence of Mr Higham. For example this was stated in paragraph 49:
In considering the parties’ arguments concerning the limitation period, his Honour dealt extensively with the evidence of Mr Higham.His Honour was satisfied that the National Office Minute was not a decision to not charge the respondent, accepting MrHigham’s evidence on that issue, despite noting that his evidence was criticised by the appellant on a number of grounds.
22.The Court of Appeal clearly understood the issue at hand as reflected in paragraphs 64 and 65 of its judgment:
[64] Ground 6 of the appellant’s notice of appeal contends that the primary judge erred in failing to find that the National Office Minute was a decision made under s61(2) of thePublic Service Actto not charge the appellant with misconduct. The ground is expressed consistently with the way the appellant’s case was put before the primary judge, namely that the Minute was a decision. In the appeal, the case was argued differently – that the Minute is not the decision, but, rather, is evidence of the decision.
[65] It is common ground that if Mr Higham made a decision on about 29 July 1997 to not charge the appellant, he had no power to make a contrary decision on 13 October 1997 to charge the appellant.
23.The court stated the powers that it had in dealing with the appeal:
[98] This appeal is brought pursuant to s37E of theSupreme Court Act 1933(ACT).The appeal is an appeal by way of rehearing.The powers of the appellate court are exercisable only if the appellant can demonstrate, having regard to all the evidence before the court, that the order of the primary judge is the result of some legal, factual or discretionary error:Allesch v Maunz(2000) 203 CLR 172 at [23].However, the circumstances in which an appellate court will conclude that the primary judge has made a factual error are limited where the finding of fact is based on the credibility of a witness.
24.The court noted that the outcome of the case before the primary judge “depended substantially, although not entirely” on the assessment of Mr Higham’s credibility.
25.The applicant relied heavily on what he stated was an obvious mistake in the judgment. At paragraph 45, thejudgmentreads:
When Mr Higham eventually decided to charge the appellant with misconduct, a document was provided to the appellant in the same terms as the draft report, save that the word “draft” was deleted.
26.The applicant said that not only was the factual statement wrong but the error infected the whole of the assessment of Mr Higham’s credibility. I am not convinced the statement is wrong, but even if it was, the Court’s assessment of whether Mr Higham should have been accepted or rejected was comprehensively examined and did not rely on the ‘error’ in paragraph 45. Moreover, the mistake, assuming there was a mistake, is a matter which would be properly dealt with on appeal where errors of the court could be examined.
27.Each and every argument made by Queen’s Counsel for the applicant was obviously considered. This applies not only to the attack on the conclusions about the credibility of Mr Higham but also other witnesses.
28.In addition, assumingthepossibility that it might be wrong, the Court of Appeal considered the question of whether or not the evidence established that any relevant fact had been deliberately concealed. The Court concluded as follows:
[155] Therefore, the evidence does not establish that the respondents engaged in improper or unconscionable behaviour that might allow an inference to be drawn that they intended to conceal the fact that Mr Higham had made a decision to not charge the appellant.
29.I think it worthwhile stating the Court’s conclusion as summarised in paragraphs 160 and 161:
[160] The appellant’s case that the proceeding was brought within the limitation period is premised on the allegation that Mr Higham made a decision on about 29 July 1997 to not charge the appellant with misconduct. Each of the appellant’s causes of action (other than defamation) also depend upon a finding that Mr Higham made such a decision.As the appellant has not demonstrated any error in the primary judge’s finding that MrHigham made no such decision, his Honour’s judgment that each of these causes of action failed must also be upheld.
[161] The appellant’s counsel accepted that, the fate of the appeal depends upon the sixth ground of appeal.As that ground has failed, the appeal must be dismissed with costs.
30.Paragraph 161 again emphasises the scope of the appeal and the acceptance by the applicant, through his Queen’s Counsel, that this was the correct approach.
31.The respondents said the application was a re-agitation of not only the appeal but also the primary decision and even some of the judgments that had occurred in other jurisdictions. This approach was specifically rejected by the High Court in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd(No 2) [2013] HCA 44. As in that case,the applicant could be said to disagree, “with the conclusions reached by this court and that it seeks a second opportunity to persuade the court...” of the correctness of his own case.
32.In my view, any attack on the Court of Appeal judgment can only be by way of an appeal from that judgment to the High Court. I note Mr Dunstan said that process was in train.
33.A submission was made that if the application failed, the costs order should not follow the event. There are situations where costs do not follow the event. The High Court said in Gray v Richards(No 2) [2014] HCA 47 at paragraph 2:
The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.
34.In my view, justice requires that the applicant pays the respondents’ costs of the application. I have not found any basis for the application and can see no reason for any unusual costs order.
35.Accordingly I make the following orders:
(a)The application filed on 8 July 2016 is dismissed.
(b)The applicant is to pay the respondents’ costs of the application.
I certify that the preceding thirty-five[35] numbered paragraphs are a true copy of the Reasons for Judgment ofhis Honour Justice ElkaimAssociate:
Date: 27 July 2016
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