Dunstan v Orr (No 2) [2023] FCA 1536

Federal Court of Australia

Dunstan v Orr (No 2) [2023] FCA 1536 File number(s): ACD 93 of 2021

Judgment of: WIGNEY J

Date of judgment: 7 December 2023

Catchwords: PRACTICE AND PROCEDURE – respondents' application under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) for summary judgment – where applicant's claims arose from applicant's suspension from duty under Public Service Act 1922 (Cth) in 1997 and the conduct of the respondents and their legal advisers in subsequent unsuccessful proceedings concerning the suspension – first claim in negligence against the fourth respondent in relation to novel duty of care in conduct of proceedings – where nature and scope of alleged duty of care is unclear – found no reasonable prospects of establishing alleged duty or breaches – found applicant estopped from reagitating allegations of false evidence – found claim to be statute barred by expired limitation periods – second claim that respondents procured a previous judgment by fraud – where no new relevant or material facts established – found no reasonable prospects of establishing actual fraud on the part of the respondents to the proceeding or their legal advisers – further finding that the applicant's proceeding constitutes an abuse of process – found that both claims doomed to fail – application for summary judgment granted PRACTICE AND PROCEDURE – respondents' alternative application under r 16.21 of the Federal Court Rules 2011 (Cth) for striking out of the applicant's statement of claim – where serious allegations not pleaded with sufficient specificity and clarity – where pleadings a series of broad and sweeping allegations – found that had summary judgment not been entered the pleading would have been struck out