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Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 191 (9 February 2007)

Last Updated: 23 February 2007

FEDERAL COURT OF AUSTRALIA

Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 191

Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885 related

COLIN GEORGE DUNSTAN v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, HENRY PRICE, DONALD BARTLEY, JOHN GROWDER, GEOFFREY SEYMOUR AND COMMONWEALTH OF AUSTRALIA
ACD 4 OF 2006

GYLES J
9 FEBRUARY 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 4 OF 2006

BETWEEN:	COLIN GEORGE DUNSTAN Appellant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent HENRY PRICE Second Respondent DONALD BARTLEY Third Respondent JOHN GROWDER Fourth Respondent GEOFFREY SEYMOUR Fifth Respondent COMMONWEALTH OF AUSTRALIA Sixth Respondent

JUDGE:	GYLES J
DATE OF ORDER:	9 FEBRUARY 2007
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The amended notice of appeal be struck out.
2. The proceedings be dismissed.
3. The appellant pay the costs of and associated with this appeal, including costs of all motions.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 4 OF 2006

BETWEEN:	COLIN GEORGE DUNSTANAppellant
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSIONFirst Respondent HENRY PRICESecond Respondent DONALD BARTLEYThird Respondent JOHN GROWDERFourth Respondent GEOFFREY SEYMOURFifth Respondent COMMONWEALTH OF AUSTRALIASixth Respondent

JUDGE:	GYLES J
DATE:	9 FEBRUARY 2007
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1 This application relates to a purported appeal from a decision of Mansfield J delivered on 21 December 2005 (Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885).
2 On 6 November 2006 I struck out the notice of appeal in ACD 4 of 2006 but granted leave to Mr Dunstan to re-plead by filing an amended notice of appeal on or before 2 February 2007, and the matter was stood over until today with costs reserved.
3 I indicated to Mr Dunstan on that occasion that the notice of appeal simply did not comply with the Rules of Court in relation to the form and substance of such a document, and explained that it was fundamental that there be a notice of appeal in proper form. I then adverted to the fact that legal advice in a situation of this kind is very helpful, if not essential. I also mentioned the possibility of some pro bono assistance. I have given some consideration to that again but I do not think that it is appropriate to take any steps in relation to that. This is a very particular case which Mr Dunstan presented himself before the trial judge, and to bring anybody in to deal with this on a pro bono basis is, I think on reflection, not likely to be helpful.
4 The amended notice of appeal, which has been filed, was considerably slimmed down but, I regret to say, is not anywhere near being in proper form. It is framed as a layman’s attempt at a judicial review application. It does not propose or isolate grounds of appeal in a proper fashion. If it were allowed to remain it would be extremely difficult, if not impossible, to settle an index and prepare an appeal book. It would be difficult, if not impossible, for a Full Court to focus upon the real issues. It would considerably vex the other parties in having to prepare for such an unfocussed appeal. One sympathises with a litigant in person, being, as it were, nipped in the bud in relation to an appeal. However, leaving aside the practicalities of the appeal, I must also bear in mind that there are other parties to this appeal, four of them individuals, who cannot help but be affected by the existence of proceedings such as this. The original notice of appeal was filed over 12 months ago. The matter still has not been determined.
5 Mr Dunstan’s sense of grievance about the way in which his complaints have been dealt with in what he regards as a dilatory fashion is really beside the point so far as this application before me is concerned. I strike out the amended notice of appeal which was filed. I dismiss the proceedings. I order that Mr Dunstan pay the costs of and associated with this appeal, including costs of all motions.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:
Dated: 22 February 2007

	The Appellant appeared in person

Solicitor for the Second Respondent:	Mr C Davis of DLA Phillips Fox

Counsel for the Third, Fourth, Fifth and Sixth Respondents:	Mr GA Stretton

Solicitor for the Third, Fourth, Fifth and Sixth Respondents:	Clayton Utz Lawyers

Date of Hearing:	9 February 2007

Date of Judgment:	9 February 2007

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1	This application relates to a purported appeal from a decision of Mansfield J delivered on 21 December 2005 (Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885).
2	On 6 November 2006 I struck out the notice of appeal in ACD 4 of 2006 but granted leave to Mr Dunstan to re-plead by filing an amended notice of appeal on or before 2 February 2007, and the matter was stood over until today with costs reserved.
3	I indicated to Mr Dunstan on that occasion that the notice of appeal simply did not comply with the Rules of Court in relation to the form and substance of such a document, and explained that it was fundamental that there be a notice of appeal in proper form. I then adverted to the fact that legal advice in a situation of this kind is very helpful, if not essential. I also mentioned the possibility of some pro bono assistance. I have given some consideration to that again but I do not think that it is appropriate to take any steps in relation to that. This is a very particular case which Mr Dunstan presented himself before the trial judge, and to bring anybody in to deal with this on a pro bono basis is, I think on reflection, not likely to be helpful.
4	The amended notice of appeal, which has been filed, was considerably slimmed down but, I regret to say, is not anywhere near being in proper form. It is framed as a layman’s attempt at a judicial review application. It does not propose or isolate grounds of appeal in a proper fashion. If it were allowed to remain it would be extremely difficult, if not impossible, to settle an index and prepare an appeal book. It would be difficult, if not impossible, for a Full Court to focus upon the real issues. It would considerably vex the other parties in having to prepare for such an unfocussed appeal. One sympathises with a litigant in person, being, as it were, nipped in the bud in relation to an appeal. However, leaving aside the practicalities of the appeal, I must also bear in mind that there are other parties to this appeal, four of them individuals, who cannot help but be affected by the existence of proceedings such as this. The original notice of appeal was filed over 12 months ago. The matter still has not been determined.
5	Mr Dunstan’s sense of grievance about the way in which his complaints have been dealt with in what he regards as a dilatory fashion is really beside the point so far as this application before me is concerned. I strike out the amended notice of appeal which was filed. I dismiss the proceedings. I order that Mr Dunstan pay the costs of and associated with this appeal, including costs of all motions.