Dudszinski v Kellow & Ors

[2003] HCATrans 547

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B108 of 2002

B e t w e e n -

WALDEMAR DUDZINSKI

Applicant

and

AYNSLEY KELLOW

First Respondent

ROY RICKSON

Second Respondent

ERROL STOCK

Third Respondent

BILL HOGARTH

Fourth Respondent

CORDIA CHU

Fifth Respondent

KEES HULSMAN

Sixth Respondent

LYN HOLMAN

Seventh Respondent

COLIN McANDREW

Eighth Respondent

JOHN SCOTT

Ninth Respondent

GRIFFITH UNIVERSITY

Tenth Respondent

Application for a stay

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 JANUARY 2003, AT 11.01 AM

Copyright in the High Court of Australia

__________________

MR W. DUDZINSKI appeared in person.

MS S.E. BROWN:  Your Honour, I appear on behalf of the respondents.  (instructed by Minter Ellison)

HIS HONOUR:   Yes, Mr Dudzinski.

MR DUDZINSKI:   May I hand to your Honour a submission?

HIS HONOUR:   Yes, thank you.  Have you provided Ms Brown with a copy?

MR DUDZINSKI:   I just will do now.

HIS HONOUR:   Who are all the respondents, Mr Dudzinski?

MR DUDZINSKI:   The respondents, your Honour, are 10 respondents, starting from Mr Kellow, ending with Griffith University.  There are 10 respondents, your Honour.

HIS HONOUR:   Yes.  What is their relationship with you?

MR DUDZINSKI:   I am a student of the University and those people are – some of them are administrative officers, some of them are academics.

HIS HONOUR:   Yes, all right, thank you.  I will continue reading your submissions.  Ms Brown there is something to come back before the Federal Court on the 4^th, is that right?

MS BROWN:   It is coming back for hearing before Mr Justice Spender on the 4^th.

HIS HONOUR:   What exactly is coming back before ‑ ‑ ‑

MS BROWN:   The creditors’ petition that has been issued, your Honour, and directions were made for the hearing of that because Mr Dudzinski has filed a notice of opposition.  So directions will be made in the hearing as to whether a sequestration order will be held on the 4^th.

HIS HONOUR:   Right.  Now, this application is made in proceedings seeking special leave, is that right?

MS BROWN:   Your Honour, it seems to be made in two contexts.  The first is an application for special leave from the decision of the Full Federal Court refusing to set aside the decision of Justice Spender in relation to the bankruptcy notice.

HIS HONOUR:   What was Justice Spender’s decision in relation to the bankruptcy matters?

MS BROWN:   His Honour’s decision was that he would not extend time for compliance with the bankruptcy notice or set it aside.  There is a second set of proceedings, and here I am of limited assistance to your Honour.  Mr Dudzinski sought on an ex parte basis leave to issue prerogative proceedings against members of the Full Federal Court who made the original decision that costs be awarded against Mr Dudzinski in favour of the respondents, which is ultimately what has led to the bankruptcy notice to be issued.  Those proceedings were on foot, or the application for leave was on foot at the time that the application to set aside ‑ ‑ ‑

HIS HONOUR:   What, some sort of prerogative relief sought against the Federal Court?

MS BROWN:   Prerogative relief, that is right.  Now, since that time the Chief Justice has not granted leave but I understand an appeal has been filed.  So I presume that Mr Dudzinski is relying on the second tier of the court’s power to stay proceedings where there is an appeal on foot or its inherent jurisdiction.

HIS HONOUR:   Yes.

MS BROWN:   Your Honour, I have prepared some submissions in anticipation which may assist you, because I did try and set out the background.

HIS HONOUR:   That is useful.  Thank you, Ms Brown.

MS BROWN:   I will not hand up any of the cases unless your Honour requires.

HIS HONOUR:   No.  Ms Brown, the real issue, the heart of the matter is whether a sequestration order should be made.  Ultimately that is ‑ ‑ ‑

MS BROWN:   Well, at least whether the proceedings should go forward with the possibility that a sequestration order will be made.  Certainly, from my point of view, that is a likely outcome.

HIS HONOUR:   That is the issue for determination before Justice Spender:  whether there should be a sequestration order made or not.

MS BROWN:   That is right, your Honour.

HIS HONOUR:   That is right.  The relief sought here is, what, designed to prevent the hearing of that application until such time as this matter comes before me – until such time as the application for special leave comes before this Court, is that right?

MS BROWN:   Your Honour, in essence, although it is ‑ ‑ ‑

HIS HONOUR:   In essence.  I am trying to strip away the ‑ ‑ ‑

MS BROWN:   It is wider than that insofar as Mr Dudzinski also seems to seek the stay, not only until the determination of the matters here in the High Court, but also until there is a determination of some proceedings he has filed in the Supreme Court of Queensland and the determination of an apparent complaint that he has made in the Human Rights and Equal Opportunities Commission.

HIS HONOUR:   Ms Brown, why should I not grant a stay, at least until 4 February?  In practical terms, nothing is likely to happen before then, is it?

MS BROWN:   Well, your Honour, if we stay the proceedings, in effect, of the hearing of the creditors’ petition, the question arises as to – in terms of the balance of convenience, your Honour, I cannot suggest that that favours the respondents, but this is the circumstance where there is an application for special leave.  Your Honour is well familiar with the principles that are applied in this context and, in my submission, the possibility of special leave being granted in this instance, there is just no apparent basis upon which that is going to be given and, similarly, in relation to the appeal from the Chief Justice’s decision, there is simply no likely prospect, just on an objective basis – and I have not reviewed the documentation – that that appeal is going to be successful.

HIS HONOUR:   Well, the relief that Mr Dudzinski seeks is an order that the proceedings, that is the petition, be stayed pending the determination of various other matters, including the application for special leave.

MS BROWN:   That is right, your Honour, in relation to which Mr Dudzinski still has not filed his outline of argument – he has been given an extension of time until 10 February to do so – and in a context where the previous application for special leave from the Full Federal Court, where the order for costs was made, the application for special leave was ultimately abandoned.

HIS HONOUR:   Anyway, I misstated something before to you, Ms Brown.  It is not a question of staying anything until 4 February.  He wants the matter which would come on on 4 February stayed until all these other matters are dealt with.

MS BROWN:   That is right, your Honour.

HIS HONOUR:   Have I your written submissions?

MS BROWN:   I understand you have, your Honour.

HIS HONOUR:   All right.  You go ahead, Mr Dudzinski.

MR DUDZINSKI:   Your Honour, I have very important argument as a matter of law ‑ ‑ ‑

HIS HONOUR:   Just remember I am going to allow you 20 minutes on each side.  You do not get longer in this proceeding than you would get on an application for special leave.  So each party has 20 minutes and I will ask my associate to time that from now.

MR DUDZINSKI:   Your Honour, I discovered that notice of bankruptcy is…..I discovered yesterday.

HIS HONOUR:   I am sorry, I did not ‑ ‑ ‑

MR DUDZINSKI:   I discovered that notice of bankruptcy which has been served on me is…..I just have legal authority to ask your Honour to see.

HIS HONOUR:   What have you there?

MR DUDZINSKI:   Because this notice of bankruptcy is based on two judgments at least and if notice of bankruptcy is based on two judgments, notice is invalid and…..legal proposition for this.  Can I ‑ ‑ ‑

HIS HONOUR:   All right.  You want to hand me up something, do you?  Have you provided Ms Brown with a copy of this?

MR DUDZINSKI:   No, just a second.

HIS HONOUR:   Where do I find the bankruptcy notice in your papers?

MR DUDZINSKI:   Yes, your Honour, I am just – I am reading my affidavit of – my affidavit which I have provided…..22 January 2003 and I refer your Honour to exhibit WAD6.  It is ‑ ‑ ‑

HIS HONOUR:   Six, is it?

MR DUDZINSKI:   WAD6.  It is appeal papers volume 1 from No Q91 of 2002 of Federal Court appeals and I refer your Honour to page 16 and 17 and also I just would like to give to your Honour…..document which will be very helpful.

HIS HONOUR:   No, that does not seem to be the page.  I want to see the bankruptcy notice.

MS BROWN:   Your Honour, I think if you refer to page 30 in that appeal book which you have before you.

MR DUDZINSKI:   I know your Honour does not…..The bankruptcy notice is page No 12 in this exhibit WAD6, page 12.

HIS HONOUR:   It is also at page 30, is it, Ms Brown?  Yes.

MR DUDZINSKI:   It is not, your Honour.  It is not.  Perhaps I can ‑ ‑ ‑

HIS HONOUR:   I do have a bankruptcy notice here at page 30, Mr Dudzinski.

MR DUDZINSKI:   Your Honour, I refer your Honour to exhibit WAD6 which was ‑ ‑ ‑

HIS HONOUR:   Well, we will find that too and see if it is the same.  You are referring to a bankruptcy notice dated ‑ ‑ ‑

MR DUDZINSKI:   I am referring your Honour to a bankruptcy notice which I exhibited which was part of appeal papers Q91 of 2002 which was last time before Bankruptcy Court, Full Federal Court, on 21 November 2002 and from 22 November 2002 in relation to the summons which I have today I have placed an affidavit of Waldemar Dudzinski ‑ ‑ ‑

HIS HONOUR:   Mr Dudzinski, I still have not – I am still not satisfied I have the bankruptcy notice.  Now, Ms Brown has referred me to page 30 of ‑ ‑ ‑

MR DUDZINSKI:   Your Honour, I ‑ ‑ ‑

HIS HONOUR:   No, listen to me, please, Mr Dudzinski – of exhibit WAD6 and page 30 is a bankruptcy notice.  Do you have the same numbering as I have?

MR DUDZINSKI:   Yes, I – yes, I do as well.

HIS HONOUR:   I cannot find the date, Ms Brown.  Where do I find the date?

MS BROWN:   Of the bankruptcy notice?

HIS HONOUR:   Yes.

MS BROWN:   Page 34.

HIS HONOUR:   Is it 19 December?

MS BROWN:   Yes.

HIS HONOUR:   That is right.  Well, Mr Dudzinski, are we referring to the same document, the bankruptcy notice of 19 December 2001?

MR DUDZINSKI:   On No 30, yes, your Honour, is actually another bankruptcy notice the same in the appeal book.

HIS HONOUR:   Yes, so there are two copies of it.

MR DUDZINSKI:   That is correct.

HIS HONOUR:   But we are looking at the same document.

MR DUDZINSKI:   Yes.

HIS HONOUR:   Now, if we go to page 3 of that document, which is page 32 of your exhibit – have you got that?

MR DUDZINSKI:   Yes, your Honour.  In…..page 32, which is ‑ ‑ ‑

HIS HONOUR:   It has a schedule, do you see?

MR DUDZINSKI:   Schedule page No 3 of the document.

HIS HONOUR:   And there seems to be only one judgment or one debt referred to there.  Am I wrong about that?

MR DUDZINSKI:   I do not…..because to this notice a bankruptcy notice has been attached order of Full Federal Court which is page 35.

HIS HONOUR:   Page 35, yes.

MR DUDZINSKI:   And page 36.  There are two separate judgments, your Honour.

HIS HONOUR:   But there is only one judgment, is there not?  It is $17,700.

MR DUDZINSKI:   That is what is written but on the basis of the judgment - just two judgment which are on page 25.

HIS HONOUR:   Page 25.

MR DUDZINSKI:   I gave to your Honour proposition, legal ‑ ‑ ‑

HIS HONOUR:   But the document – the order of the court at page 36 is an order or judgment against you for $17,700.

MR DUDZINSKI:   Your Honour, that is correct but this is on the basis of the two judgments attached to bankruptcy notice.  The proposition which I gave to your Honour says that bankruptcy notice based on the judgment is…..when I did appear before Justice Kiefel in Federal Court ‑ ‑ ‑

HIS HONOUR:   Justice who?

MR DUDZINSKI:   Justice Kiefel, who was presiding judge of Full Federal Court, informed me that this costs also are based on judgment of court below, that therefore was order of Justice Drummond which was made on April 1999.  No party was ordered to pay costs.  The respondents want to compensate this losses because they were unsuccessful in striking my application…..in 1998, therefore, these costs are strongly exaggerated at least two times.  I was refused – I was refused to object the amount of the costs, what is clearly jurisdictional error because there was power and jurisdiction in court to let me properly object the amount of these costs, therefore this figure which is $17,700 was made in the full judgment of Registrar Baldwin made on 23 February 2000…..and she refused to hear my objections concerning the amount of costs and therefore this amount is as it is.

I just want to make…..matter which I had before High Court in 2000 here concerning secretaries of two departments of Commonwealth.  Solicitor for the Commonwealth presented bill of costs close to $40,000, however I was…..of High Court to present my objections and this bill of costs was reduced to about $13,000.  So this cost is strongly exaggerated and it is not – there is a history…..over billing.  However as a matter of law this notice of bankruptcy, as I mentioned before, is based on two judgments and it is….. – at least on two judgments.

I just have – if I can refer your Honour to my affidavit of 22 February which I have filed in this Court to exhibit WAD2a which is an Auscript ‑ ‑ ‑

HIS HONOUR:   What page should I be looking at Mr ‑ ‑ ‑

MR DUDZINSKI:   Firstly I want to just ask your Honour to go exhibit WAD2a…..very shortly and…..  It is exhibit – back of the ‑ ‑ ‑

HIS HONOUR:   Do you have the number for that, Ms Brown, the document that Mr Dudzinski is referring to?

MS BROWN:   The transcript, your Honour.  It is exhibit WAD2a.

MR DUDZINSKI:   Page 33 of the exhibit.

HIS HONOUR:   Page 23?

MR DUDZINSKI:   Page 33 of this exhibit.

HIS HONOUR:   Page 33.  All right.

MS BROWN:   It is a transcript of the Full Federal Court.

HIS HONOUR:   All right.  WAD2a?

MS BROWN:   WAD2a.

HIS HONOUR:   All right.  What does it say, what are you referring me to that for?

MR DUDZINSKI:   This page 33 of the transcript, lines 20…..Justice Kiefel is saying that the order for costs of Full Federal Court of 27.8.1999 as follows:

It is the order for costs made by the Full Court which included the costs below.

So I learned from appearing before this court that this bill of costs is based on costs which Minter Ellison lawyers suffered…..successful before Justice Drummond, the striking of my application.  Therefore this figure is such…..  Your Honour, I just want to hand to your Honour…..which I handed to Justice Spender.

HIS HONOUR:   Yes.  Have you given Ms Brown a copy?

MR DUDZINSKI:   Yes.  This is Rixon v Bryett and perhaps I can hand to your Honour a copy of bill of costs which was served on me by Minter Ellison…..

HIS HONOUR:   What did you want to refer me to in the decision of Justice Moore?

MR DUDZINSKI:   I want to refer your Honour to page – can I refer your Honour – I just firstly refer your Honour to first page “BANKRUPTCY”, which is….., and bankruptcy notice has been served on the ground that he has failed to comply with Order 38 of the Family Law Rules.  The bill of costs which has been served on me by Minter Ellison failed to comply with Federal Court Rules because if they did not attach as required by Order 62 rule 40(2) any evidence of costs we suffered like disbursements, computer printing and whatever costs we suffered, this requirement of Federal Court Rules that you should be – you should have such documents attached.

HIS HONOUR:   Yes.

MR DUDZINSKI:   Another matter is that in addition ‑ ‑ ‑

HIS HONOUR:   You have five minutes left, Mr Dudzinski.

MR DUDZINSKI:   Your Honour, I have genuine grounds to argue in other courts and especially action which has not been struck out by Justice Drummond and in this authority which I give to your Honour on page 9 on to 10 in the middle what is italic printing it is said that:

Another situation in which a notice may be set aside is where . . . the court is satisfied that there is a dispute genuinely based on substantial grounds as to the correctness of that judgment.

And I have this matter now before High Court.  I am seeking leave to appeal from a decision of Justice Gleeson.  I do not share a view with Justice Gleeson and I have not been given extension to file argument until 10 February but as I have a special leave application concerning this appeal…..bankrupts appeal which took place on 21 November 2002. 

In my submission I stated that the condition for ground – stay of High Court of Australia in order to preserve subject matter of litigation and for me it is most important to preserve subject matter of litigation and if such stay order will not be granted about what Justice Spender is properly aware of I will lose possibility to argue matters which have not been struck out and I may lose the right to appeal as well.  Therefore I am just seeking stay of this petition…..pending firstly determination by High Court.

In granting stay order in order to preserve subject matter of litigation High Court of Australia consider the following:  firstly, very substantial prospect of gaining of special leave to appeal, and I submit that such prospect is good because, as I said before, this notice of bankruptcy is…..  It is based on two the judgments and I supported this by two authorities which I gave to your Honour.  This is…..

Secondly, I took all necessary steps in court below to ask for adjournments and of stay and such requests were refused.  So this point was satisfied also.  Stay will not cause any loss to respondents because they do not pay any money, I believe, but University is paying and they caused loss to me.  I wasted a whole year, 2002 academic year.  I could not concentrate on my studies and I incurred liability to Centrelink because the money which I borrowed from Commonwealth has been actually wasted.  I could not persist with my studies.  So these people caused damage to me.

And balance of convenience lies in my favour because this is strongly arguable grounds under section 35A of the Judiciary Act raise question of law to be determined in public interest and there was miscarriage of justice also.  I have a….of litigation which was not determined and I requested Justice Drummond to persist with summary application,…..claim for $104,000…..years without any substantial cost.  His Honour has jurisdiction and refused to exercise the jurisdiction, therefore it is jurisdictional error.

I have still matter in High Court which is…..leave to appeal from Justice Gleeson’s decision and I am asking for not very big favour, just simply for stay order pending determination of matters which are on foot in Supreme Court which Justice Drummond bring number of obvious error, for example, he struck gross negligence, liability of Griffith University in…..  It is obvious matter of law that what respondents submitted in documents which have been filed in Supreme Court of Queensland that academics which caused damage to me was acting in course of employment, therefore the test is if person is acting in course of employment, employer is automatically vicariously liable.

HIS HONOUR:   Your time is up, Mr Dudzinski.

MR DUDZINSKI:   I am seeking orders which I requested, your Honour.

HIS HONOUR:   Yes, all right, thank you.  Ms Brown, I have no need to hear you.

MS BROWN:   Thank you, your Honour.

HIS HONOUR:   Just be careful, would you – I would like you to correct any – if I should make any misstatement of the facts relating to ‑ the proceedings so far are fairly complicated.  There is a multiplicity of them.  So please correct me if I misstate anything.

MS BROWN:   Yes, your Honour.

HIS HONOUR:   The applicant has instituted two proceedings in this Court: an application for special leave to appeal from a judgment of the Full Court of the Federal Court and prerogative proceedings under the Constitution against judges of the Federal Court. Both sets of proceedings are concerned with an order for costs which has been obtained against the applicant in the sum of $17,700.

Ms Brown, are all of the respondents parties to the bankruptcy petition?

MS BROWN:   Yes, they are, your Honour.  Your Honour, the judgment is an order for costs and the certificate of taxation is obviously the quantification of that.  The Full Federal Court decision was one that dismissed an application for leave to appeal from a strike out and permanent stay decision.

HIS HONOUR:   Thank you for that.  I will amend the reasons for judgment accordingly.

Pursuant to the order which has been made, the respondents caused to be issued a bankruptcy notice against the applicant on 19 December 2001.  On 11 February 2002 the applicant filed an application with an accompanying affidavit to set aside that bankruptcy notice.  He has been given leave to amend his application.  The application sets out many grounds which need not be repeated here.  There is to be a hearing of the creditors’ petition by Justice Spender in the Federal Court on 4 February next.

MS BROWN:   Excuse me, your Honour.  The hearing to set aside the bankruptcy notice has already occurred and there has been an appeal to the Full Federal Court in relation to which the special leave application is now made.  It is a hearing of the creditors’ petition on 4 February.

HIS HONOUR:   The application before me today is an application to stay those proceedings which are to be dealt with by Justice Spender until such time as the application for special leave to the High Court and the application for prerogative relief have been dealt with in the High Court. 

In deciding how I should deal with the application by Mr Dudzinski I am bound to have regard to both the balance of convenience and the prospects, if any, of success that Mr Dudzinski may have in the applications which he has made to the High Court. 

The applicant has instituted in relation to this matter a great deal of expensive, prolonged, collateral litigation in none of which has he been successful.  Each of the applications involves a degree of inconvenience and expense to the respondents.  It seems to me also, on a preliminary, and by no means exhaustive review of the prospects, that the proceedings instituted in the High Court by Mr Dudzinski do not enjoy any substantial prospects of success. 

Accordingly, the application fails for two reasons:  the unlikelihood of any prospects of success in the applications pending in the High Court and because anything that would serve to prolong these proceedings would be to the inconvenience and very considerable expense of the respondents.  I, accordingly, refuse the application.

Do you seek costs, Ms Brown?

MS BROWN:   Yes, your Honour.

HIS HONOUR:   What do you say about that, Mr Dudzinski?

MR DUDZINSKI:   I oppose the costs, your Honour.  I oppose the costs.

HIS HONOUR:   On what ground?

MR DUDZINSKI:   On the ground that…..justice, that I presented to your Honour legal authorities which I think should be sufficient to convince your Honour that notice of bankruptcy is…..and also I have still right to appeal your Honour’s decision.  I oppose the costs.

HIS HONOUR:   Thank you, Mr Dudzinski.  I do not need to hear you, Ms Brown.

I dismiss the application with costs and I certify for counsel.

Nothing further?

MS BROWN:   No, your Honour.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you.

AT 11.40 AM THE MATTER WAS CONCLUDED