Dudzinski, An application by

[2003] HCATrans 375

[2003] HCATrans 375

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Brisbane  No B90 of 2002

In the matter of -

An application for leave to appeal by WALDEMAR DUDZINSKI against the refusal of leave to issue a proceeding

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 18 SEPTEMBER 2003, AT 3.44 PM

Copyright in the High Court of Australia

MR W. DUDZINSKI appeared in person.

HIS HONOUR:   Is there any appearance for the respondents?

MR DUDZINSKI:   Yes, Ms Brown is behind…..

MS S.E. BROWN:   Your Honour, I understand we are in the matter of Dudzinski v Kellow.  Re Dudzinski we have not received any summons in relation to that matter.

HIS HONOUR:   All right, thank you, Ms Brown.

MR DUDZINSKI:   That is not correct, your Honour.  That is not correct.  That was sent in by post to Minter Ellison Lawyers, a summons, and I already served affidavit in support of the summons, evidence ‑ ‑ ‑

HIS HONOUR:   Do you seek leave to appear, in any event, Ms Brown?

MS BROWN:   Your Honour, if it pertains to my client, I would probably have to, but I would probably be seeking an adjournment on the basis I have no idea what the actual application is.

HIS HONOUR:   Well, the application, Ms Brown, is for, I think, to set aside the decision of the Deputy Registrar with respect to the documents to be included in the index for the application to this Court.  In any event, you have not been served, so ‑ ‑ ‑

MS BROWN:    No, your Honour.  Your Honour, this does not pertain to the – I understand that Mr Dudzinski has an appeal from the decision of Chief Justice Gleeson.

HIS HONOUR:   Yes, that is what this one is.

MS BROWN:    That is not a matter that we have actually been served with, so to that extent ‑ ‑ ‑

HIS HONOUR:   Yes, all right.  Mr Dudzinski, I understand though you have an application that I should disqualify myself.

MR DUDZINSKI:   This is correct, your Honour.  I just would like to raise this point at the beginning of this appeal.

HIS HONOUR:   Do you want to proceed with that?

MR DUDZINSKI:   Yes.

HIS HONOUR:   Mr Dudzinski, you have been before a number of Justices of this Court though, have you not?  Chief Justice Gleeson, Justice Gummow ‑ ‑ ‑

MR DUDZINSKI:   Your Honour, I never did appear before another Justice in this Court except for your Honour and Justice Kirby.

HIS HONOUR:   Well, why should I disqualify myself, Mr Dudzinski?

MR DUDZINSKI:   Your Honour, I have documents in my…..your Honour will allow me to take that…..to assist me in presenting ‑ ‑ ‑

HIS HONOUR:   Yes, you refer to whatever documents you need to refer to.

MR DUDZINSKI:   But from memory I can say that your Honour have sat on the last occasion on 29 January 2003 in summons application in which I did request your Honour stay order pending determination of a petition and, in particular, requested that order in order to preserve issues of litigation because sequestration order…..by ‑ ‑ ‑

HIS HONOUR:   I remember that matter.  Mr Dudzinski, the fact that I may have made an order adverse to you in the past in another matter ‑ ‑ ‑

MR DUDZINSKI:   That is not correct, your Honour.  I just want to raise different point on this occasion.

HIS HONOUR:   You have to make submissions as to why I should ‑ ‑ ‑

MR DUDZINSKI:   Yes, I am making ‑ ‑ ‑

HIS HONOUR:   Well, just tell me in a nutshell why should I disqualify myself.

MR DUDZINSKI:   Your Honour was sitting on similar…..issues.  This issue which your Honour is going to say today, they are relevant and similar issues.  Because your Honour decided in favour of respondents and there was no evidence to support this decision, in my submission, for that reason, according to…..authority which was decided by Chief Justice Gleeson at the time he was Chief Justice of the Supreme Court of New South Wales and Justice Gleeson held in his decision that judge who sat in decision and ‑ ‑ ‑

HIS HONOUR:   But, Mr Dudzinski, all this application is for is to have included in the papers that go before the Court on your application for special leave some further papers.  That is the application that is before me now, is it not?

MR DUDZINSKI:   Yes, but I believe that, your Honour, if your Honour will just decide this application today, I will suffer injustice again.  Your Honour already sat on a matter which determined similar relevant issues and your Honour is prohibited by law to sit on matters involving similar and relevant issues by a number of authorities.  One of them is…..which is authority of Supreme Court of New South Wales and it was held by a number of judges that what I said is correct and one of them was present Chief Justice Gleeson who held that justice is prohibited to sit on matters which does involve similar or relevant issues.

HIS HONOUR:   Well, this does not involve any similar issue at all, Mr Dudzinski.

MR DUDZINSKI:   It does, your Honour.

HIS HONOUR:   All this involves is a question of what should be included in the application book that goes before other Judges.

MR DUDZINSKI:   Your Honour, in my submission, it is…..because this matter for special leave application and your Honour showed by this decision on 29 January prevent even prosecution orders…..now and sequestration order was made against me and I suffered injustice.  So today, if your Honour were to decide it, I feel that apparent – in my mind it is an application of ‑ ‑ ‑

HIS HONOUR:   Well, Mr Dudzinski, you can perhaps renew your application when we call the other matter on, but the matter that I am dealing with first relates only to the contents of the application book, not to anything else, and I am not minded to disqualify myself from hearing that on anything you have said so far.  Is there anything you want to add to that?

MR DUDZINSKI:   Your Honour, before I go forward, may I ask your Honour to make clear in my mind what matters are we now concentrating, B90 of 2002 or ‑ ‑ ‑

HIS HONOUR:   B90.

MR DUDZINSKI:   Yes.

HIS HONOUR:   That is the matter.  That is the only matter at the moment, which I have characterised correctly, have I not, as an application to enlarge the application book?  That is, in effect, what it is, is it not?

MR DUDZINSKI:   Because I believe – my recollection is going back in time and I recall that your Honour signed under Order 58 rule 4 my adjourned application which was referred by Deputy Registrar Harris for your Honour’s consideration and your Honour consider this application as vexatious and…..I presented in my submissions such an amount of documents and…..and, in my submission, that decision should not be made.

Taking under consideration the fact that…..writs were already issued against Justice Drummond in the Federal Court in March 1999 and your Honour was going to hear them on 18 May 1999.  However, due to representation by…..because as simultaneously such writs were issued against her, she decided to continue inquiries.  So I simply wanted to do favour to Justice Drummond and to the Commissioner Antonias not to cause any trouble of – before the Court and it was my act of good faith.  I believe that they will do what – I believe that Full Court will do the job…..Justice Drummond and I believe truly that after written representation of Commission’s lawyer on behalf of…..that she would perceive that I was deceived.

Shortly after I discontinued these proceedings in High Court I was informed that…..was going to proceed.  It was classic example of deceit in this case.  I regret that I did it and now I cannot go through and these writs are already on foot.

HIS HONOUR:   Yes.

MR DUDZINSKI:   Your Honour, may I ask permission to put my documents on the ‑ ‑ ‑

HIS HONOUR:   Yes, of course.  Go ahead, yes.

MR DUDZINSKI:   Thank you. 

HIS HONOUR:   Now, do you want to say anything further about disqualification?

MR DUDZINSKI:   I have nothing more to say about it as what I said already.  I made this point at the beginning of the hearing because…..statutory requirements and I believe that I should make such submission, such request to you.

HIS HONOUR:   All right.

MR DUDZINSKI:   Your Honour is actually the person who is making the decision.

HIS HONOUR:   All right, thank you.  I understand your submission.  I have before me a summons filed by Mr Dudzinski seeking orders to set aside the Deputy Registrar’s decision with respect to the contents of an application book ‑ ‑ ‑

MR DUDZINSKI:   Your Honour, may I interrupt for a moment?

HIS HONOUR:   Yes.

MR DUDZINSKI:   I have just the impression that your Honour is giving order.  I mention application concerning disqualification, but if your Honour is refusing to disqualify himself and I request reason for this and I will prosecute my application concerning this matter ‑ ‑ ‑

HIS HONOUR:   Yes, I will give you an opportunity.  I am dealing with only the disqualification and I am refusing your application.  I am going to sit to hear this matter.

MR DUDZINSKI:   Thank you, your Honour.

HIS HONOUR:   I will start again.  I have before me a summons issued by Mr Dudzinski seeking orders to set aside the Deputy Registrar’s decision with respect to the contents of the application book intended to be used on an application for special leave to appeal from a decision of the Chief Justice of this Court.  At the outset Mr Dudzinski has asked that I disqualify myself on the basis that I have on a previous occasion made an order or orders adverse to him.

I have listened to his submission with respect to this matter, but decline the application on the basis that nothing that I have to decide on this summons, in any event, is or is likely in any way to be affected by a decision or decisions adverse to Mr Dudzinski in the past. 

You may proceed now with your application for the enlargement of the application book.  Mr Dudzinski, before you do, did not the Deputy Registrar tell you that you could, if you wished, file a supplementary application book?

MR DUDZINSKI:   This is correct, your Honour, I was told this.

HIS HONOUR:   Well, why did you not do that?  I mean, Mr Dudzinski, let me tell you this Court has an enormous amount of work to do.  The officials of this Court, the Deputy Registrar, has a great deal of work to do.  This Court is inundated with paper – paper that the Judges have to read.  Why would you not file a supplementary book?

MR DUDZINSKI:   Your Honour, I did this exercise on…..your Honour probably remember when I did appear before your Honour and Justice Kirby in 2000 here and I prepare voluminous amount of supplementary book and they were never allowed me to use it.  So they were not ‑ ‑ ‑

HIS HONOUR:   No, you will not be allowed use material that is irrelevant.  Now, the Deputy Registrar’s provisional view obviously is that this material is irrelevant.

MR DUDZINSKI:   Your Honour, I have to say…..that Registrar Harris ‑ ‑ ‑

HIS HONOUR:   Well, what you think may be relevant may not be relevant in law, Mr Dudzinski.  This Court has an enormous amount of work and paper and we do not want to have to read any unnecessary documents at all.  It takes too much time.  It is too pressing – it is not fair to the other litigants.

MR DUDZINSKI:   Your Honour, I appreciate what your Honour is saying but what is in appeal book is the record of Court.  I am not saying that every piece of paper has to be read, but documents which are relevant they are documents which are going to change…..and which can put certain lights on the case and they do not include, in my submission, documents which are irrelevant.  This case does concern about at least 20 pages of…..and I do not think that this ‑ ‑ ‑

HIS HONOUR:   Mr Dudzinski, just remember this:  you only have 20 minutes for an application for special leave, so obviously you are not going to have time to refer to a multiplicity of documents anyway.

MR DUDZINSKI:   Your Honour, may I hand to your Honour my submission ‑ ‑ ‑

HIS HONOUR:   Yes.

MR DUDZINSKI:   ‑ ‑ ‑ which I do not believe was considered by Justice Gleeson.  It is a copy of it.

HIS HONOUR:   Is this the submission you made to the Chief Justice, is it?

MR DUDZINSKI:   Yes.  I just hope that Justice Gleeson read it, but I have doubts about this.  So I want to request your Honour to make exhibit of this document.

HIS HONOUR:   You want to include this?

MR DUDZINSKI:   Yes, because I went through the old documents ‑ ‑ ‑

HIS HONOUR:   All right.  Was there anything else you wanted to include?

MR DUDZINSKI:   I want to just include in this appeal book a letter which I addressed to associate of Chief Justice Gleeson which I requested to be put to…..submissions because I made some technical errors, to correct my writing in the submission…..  I do not have this document with me at the moment, but I can send to your Honour’s chambers, your Honour’s associate or ‑ ‑ ‑

HIS HONOUR:   Now, was there anything else you wanted included?

MR DUDZINSKI:   I also would like to include my small affidavit, which are very relevant which were filed in High Court in period June 2002 and August 2002.

HIS HONOUR:   What did they relate to, Mr Dudzinski?

MR DUDZINSKI:   They relate to explanation – your Honour, actually this matter is about notification of my application in relation to granting…..  It was very ugly.  So I make an assertion that I just simply discovered document which I have…..case of Griffith University…..and these documents are simply making certain…..  What one of respondents was teaching and how fast…..that I did not cover certain aspects of ‑ ‑ ‑

HIS HONOUR:   Mr Dudzinski, you have told me enough about that now for me to form a clear view that that is totally irrelevant to the matter ‑ ‑ ‑

MR DUDZINSKI:   It is relevant, your Honour.

HIS HONOUR:   No, Mr Dudzinski, it is irrelevant to the matter going before the Court and I am not going to order that those affidavits be added to the application book.

MR DUDZINSKI:   But can I at least have, your Honour, this submission to be included?

HIS HONOUR:   Yes, but the fact that they are related to the matters to which you have just referred does not make them relevant to the application that is going before the Court.  Is there anything more you want to say about it?

MR DUDZINSKI:   In this affidavit I also included copies of authorities which I ‑ ‑ ‑

HIS HONOUR:   Well, authorities are not part of the application book.  On the application you can refer to authorities, if they are relevant.  They are not included in the book, Mr Dudzinski, in the application book.

MR DUDZINSKI:   If your Honour cannot allow me to file these affidavits, the task of preparing of appeal book is wrested from applicant.

HIS HONOUR:   I am sorry, I did not understand.

MR DUDZINSKI:   The task of preparing of appeal books is wrested from applicant and the applicant is responsible for any…..difficulties in accomplishing this task.  So the Registrar is not directly involved in making any technical…..the applicant has duty to prepare appeal books and deliver them to ‑ ‑ ‑

HIS HONOUR:   But the material has to be relevant, Mr Dudzinski ‑ ‑ ‑

MR DUDZINSKI:   It is relevant, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and the fact that you think it is relevant does not necessarily mean it is relevant.  Now, you mentioned authorities.  Authorities are not included in the application book.  If you want to refer to authorities on the application, you can, but you do not include them in the book.

MR DUDZINSKI:   Your Honour, apart from authorities, which is very small part of this material ‑ ‑ ‑

HIS HONOUR:   All right.  You have mentioned affidavits; you have mentioned authorities and you have mentioned your outline of submissions, or your written submissions to the Chief Justice.  Now, what other categories of documents do you want included?

MR DUDZINSKI:   As I mentioned before, I would like to include two pages letter to Chief Justice Gleeson.

HIS HONOUR:   But you do not even have that letter with you, do you?

MR DUDZINSKI:   No, I do not have with me but ‑ ‑ ‑

HIS HONOUR:   Well, how can I make a ruling about a document that you do not even have?

MR DUDZINSKI:   Maybe I will be able to find this letter, your Honour.

HIS HONOUR:   Well, you should be ready, Mr Dudzinski.  On an application for special leave you are allowed 20 minutes ‑ ‑ ‑

MR DUDZINSKI:   It is not special leave ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ and I am not going to allow you more than 20 minutes to make the present application.  If you have not got a document with you or you have not got the document ready that you want to refer to, to show to me ‑ ‑ ‑

MR DUDZINSKI:   Your Honour, this is not application for special leave; this is application for leave.

HIS HONOUR:   No, it is not.  It is not.  It is not even an application for special leave and I can make a direction – and I am making a direction – that you will not have longer than you would have if you were actually making the application for special leave.

MR DUDZINSKI:   Your Honour, in my submission, I think that your Honour categorising this application as application for special leave ‑ ‑ ‑

HIS HONOUR:   No, I am not.  I am saying that if you cannot have more than 20 minutes for special leave, you are certainly not going to have more than 20 minutes for an interlocutory matter relating to an application for special leave.

MR DUDZINSKI:   Your Honour, but the Rules, in my submission, are not saying that this time cannot be extended.  There is authority that ‑ ‑ ‑

HIS HONOUR:   You are wasting time.  Are there any other categories of documents that you want to include in the application book?

MR DUDZINSKI:   Your Honour, I just want to stress once again, for me it is very important, I believe, to include the documents which are affidavits which ‑ ‑ ‑

HIS HONOUR:   What are the other documents that you say should be included?

MR DUDZINSKI:   I set out in Court, but your Honour does not want to let me to include them.

HIS HONOUR:   Well, no, you have said affidavits; you have said the written submissions that were before the Chief Justice; you have said a letter and you have said authorities.  Now, are there any other categories of documents?

MR DUDZINSKI:   At the moment, no, but there ‑ ‑ ‑

HIS HONOUR:   There are no other categories of documents, is that correct?

MR DUDZINSKI:   Pardon?  …..your Honour.

HIS HONOUR:   The four categories of documents have been identified, is that correct?  Are there any others?

MR DUDZINSKI:   I think your Honour is correct with them at this stage.

HIS HONOUR:   All right.  Well, thank you, Mr Dudzinski.  I have heard you ‑ ‑ ‑

MR DUDZINSKI:   And, your Honour, just one question more I have forgotten to ask your Honour.  I just want to have leave to include supplementary argument according to Order 69A.  I requested Registrar Harris to let me do, but she refused.

HIS HONOUR:   Which order, Mr Dudzinski?

MR DUDZINSKI:   Order 69A, your Honour.

HIS HONOUR:   Order 69(8)?

MR DUDZINSKI:   Yes, your Honour.

HIS HONOUR:   Let me just look at that, Mr Dudzinski.  Are you sure that is the right rule?  I do not think it is.

MR DUDZINSKI:   It is, your Honour, rule 8 about summary of argument in Order 69A.

HIS HONOUR:   Order 69A, is it?

MR DUDZINSKI:   Order 69A, yes, I am sorry.

HIS HONOUR:   All right.  Order 69A ‑ ‑ ‑

MR DUDZINSKI:   Rule 8, subrule (3).

HIS HONOUR:   What order do you want under 69A rule 8, Mr Dudzinski?

MR DUDZINSKI:   I refer your Honour to Order 69A rule 8 subrule (3).  That subrule says that:

A supplementary summary of argument may be filed only with the leave of the Court or a Justice or the Registrar.

I requested the Registrar, Deputy Registrar Harris, and she refused me to do this and because that is the only…..to see that my submissions I give your Honour which was – I believe should not be before Justice Gleeson is quite substantive.  I was not able to accommodate in the 10‑page submission all arguments which I put forward before Court of Appeal of this Court and I now request your Honour to give me leave to file supplementary summary of argument in this matter, in B90 of 2002.

HIS HONOUR:   So you want to – have you already filed the summary, Mr Dudzinski?

MR DUDZINSKI:   Yes, your Honour ‑ ‑ ‑

HIS HONOUR:   But you want to add to that, is that correct?

MR DUDZINSKI:   I could not hear, your Honour.  Can you ask ‑ ‑ ‑

HIS HONOUR:   But you want to add to that summary that you have already filed, is that correct?

MR DUDZINSKI:   Supplementary summary of argument, yes, your Honour.

HIS HONOUR:   All right.  Well, I do not see any reason why you cannot do that.  So, Mr Dudzinski, I am prepared to make an order that you have leave to supplement the summary of argument which you have already filed by the addition of a supplement to be filed within 14 days from today.

MR DUDZINSKI:   Your Honour, can I ask for 28 days?

HIS HONOUR:   How long?

MR DUDZINSKI:   Twenty eight days.

HIS HONOUR:   Yes, 28 days.

MR DUDZINSKI:   And can I ask for another 20 pages submission, to be allowed to‑ ‑ ‑

HIS HONOUR:   No, you cannot.  You cannot do that.  The Court has too much to read.  Supplemented by a further submission of not exceeding 10 pages.  Mr Dudzinski, I refuse your application to set aside the decision of the Deputy Registrar regarding the contents of the application book on the ground that you have failed to demonstrate that any of the documents which you would propose or wish to have added to that book you have failed to demonstrate that those are of relevance and would be of any assistance to the Court.

MR DUDZINSKI:   Your Honour, just one matter more.  I also want to have leave of your Honour to amend my notice of appeal application.

HIS HONOUR:   What amendment do you want to make, Mr Dudzinski?

MR DUDZINSKI:   I did not have time to prepare now because I was involved in ‑ ‑ ‑

HIS HONOUR:   Mr Dudzinski, we do not make applications in advance – we do not allow that in advance.  What I suggest you do is you give notice to the other side of the amendments which you would seek to make to your notice of appeal and that you renew your application to amend your notice of appeal when your application for special leave comes on for hearing.

MR DUDZINSKI:   Your Honour, I just have to stress something, that there is no other party in this application.  It is ex parte application.  It is in the matter of my ‑ ‑ ‑

HIS HONOUR:   Quite.  All right.  Well, what you will need to do is make that application to the Court when your application for special leave comes on.

MR DUDZINSKI:   Just one question more, your Honour.  How should I understand your Honour order that I have leave to prepare supplementary summary of argument and this supplementary summary of argument may be not part of appeal book and your Honour already agreed that I can ‑ ‑ ‑

HIS HONOUR:   And you can supplement the appeal book to that extent, by adding the supplementary argument to it, but nothing further, nothing else.  Is that clear, Mr Dudzinski?

MR DUDZINSKI:   I think, yes, your Honour.

HIS HONOUR:   All right.

AT 4.13 PM THE MATTER WAS CONCLUDED