Background
Colin George Dunstan was subject to a vexatious proceedings order under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth). The order followed extensive litigation stemming from his 1997 suspension from duties at the Australian Taxation Office. The earlier proceedings repeatedly sought to revisit matters already determined, including alleged concealment of documents, privilege issues, and claims that earlier judgments had been procured by fraud.
Mr Dunstan sought leave to institute a Full Court appeal against the 2025 vexatious proceedings order. He contended that the order was unnecessary and disproportionate, improperly impeded an appeal from a July 2025 judgment, and was made without proper engagement with his submissions and evidence.
The Court’s Holding
Goodman J dismissed the leave application. Because Mr Dunstan was subject to the vexatious proceedings order, he required leave under s 37AR to institute an appeal. The Court was required to refuse leave if the proposed appeal was itself a vexatious proceeding, and could grant leave only if satisfied the appeal was not vexatious.
None of the proposed grounds had reasonable prospects of success. The primary judge was entitled to consider Mr Dunstan’s broader litigation history, not merely proceedings then on foot, when deciding whether to make the order. Mr Dunstan identified no appealable discretionary error, had in fact pursued his separate appeal from the July 2025 judgment, and failed to particularise any material evidence or submissions said to have been overlooked or mischaracterised. The proposed appeal was therefore without reasonable ground and a vexatious proceeding.
Key Takeaways
- A person subject to a Federal Court vexatious proceedings order needs leave before instituting an appeal, including an appeal against that order.
- The Court may consider the person’s overall history of proceedings across Australian courts and tribunals when assessing whether a vexatious proceedings order is justified.
- Leave must be refused where the proposed appeal has no reasonable prospects of success and is therefore vexatious.
Why It Matters
The decision confirms that the leave requirement is a substantive protective mechanism, not a formality. A proposed appeal against a vexatious proceedings order must be reasonably arguable; reasserting challenges to a litigant’s history or the primary judge’s discretion without identifying appealable error will not suffice.
It also underscores that a relatively limited number of proceedings may meet the statutory threshold where they repeatedly relitigate matters finally determined or advance claims with no prospect of success.