Dudzinski, Ex parte- Re Rogers and Anor

[1999] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Brisbane  No B48 of 1999

In the matter of -

An application for Writs of Mandamus, Prohibition and Certiorari against CAROLYN ROGERS, Senior Registrar, High Court of Australia, Commonwealth

First Respondent

MARGARET RISCHBIETH, Deputy Registrar, High Court of Australia, Commonwealth

Second Respondent

Ex parte –

WALDEMAR DUDZINSKI

Prosecutor/Applicant

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 30 AUGUST 1999, AT 11.34 AM

Copyright in the High Court of Australia

HIS HONOUR:   Are you Mr Dudzinski?

MR   DUDZINSKI:   Yes, your Honour.

HIS HONOUR:   Yes, Mr Dudzinski.

MR DUDZINSKI:   I would just simply like for the moment I have to take documentation, your Honour, to start to make my submission.  Your Honour, I am seeking order of mandamus, certiorari and prohibition against the respondent, namely Ms Carolyn Rogers, Senior Registrar of High Court of Australia and against Ms Margaret Rischbieth, Deputy Registrar, High Court of Australia.  The ground of my submission is based on two affidavits, one of which I filed on 26th day of July 1999 and today I attempted to swear and file affidavit of myself dated 30 day of September, but actually due to shortage of time I break the procedure for making…..and I have one affidavit partly signed by Justice of Peace and sworn by myself and two affidavits unsigned but being copies of the same document.  May I hand one document to your Honour and file in the Court.

HIS HONOUR:   Yes.  Let me just look at this.  Yes, Mr Dudzinski, I have looked at that.

MR DUDZINSKI:   Your Honour, central to my today submission is the fact that in my letter to Ms Rieschbieth dated 18 May 1999, which has been exhibited in my affidavit of 26 July 1999, in my first affidavit, is letter dated 18 May 1999.  I requested Ms Rischbieth who made decision what kind of document would be included in my appeal book to include certain number of documents which I think are crucial to my matter which I was listing in High Court, matter B46, which is a matter which is leave to appeal from the decision ‑ ‑ ‑

HIS HONOUR:   Mr Dudzinski, do you understand what an application for special leave to appeal involves?

MR DUDZINSKI:   Yes, your Honour.  I understand ‑ ‑ ‑

HIS HONOUR:   You understand, do you, that when an application of that kind is made it is different from an appeal itself, that all that happens is that you have an opportunity to persuade the Court that the Court should take and hear your appeal.  You only have 20 minutes to do that.

MR DUDZINSKI:   Yes, your Honour, I understand that.  Because there was so little time to…..and since the Court will not be in a position to make decision within 20 minutes, but the Court have to go, in my opinion, for very extensive amount of material to reach right conclusions.

HIS HONOUR:   The Court will not look – the Court would not have time to look at all of that material and much of that material is irrelevant to an application for special leave.  If your application for special leave succeeds, then some of that material may be relevant, but only if there is a hearing of an appeal, not on an application for special leave to appeal.

MR DUDZINSKI:   My request to the Court today is that documents which I requested Ms Rieschbieth to put in are of argumentive qualities.  This argument which I put before Administrative Appeal Tribunal and also argumentive matter which I put before Federal Court, this is not affidavit material, simply arguments on which I did rely before Administrative Appeal Tribunal on 15 July 1996 and as well I requested Ms Rischbieth to put argumentive material, which is my application for judicial review before Federal Court.  That sort of material was before the original decision maker.  It is before Full Federal Court in 1997 and according to Order 70 of High Court, rule 12, such documents can be placed in written appeal book.

In my letter to Ms Rischbieth I indicated that appeal book might be prepared in accordance to Order 69A rule 10 subrule (8) and Order 70 rule 12 of High Court Rules.  Rule 12 subrule (11) of Order 70 of High Court Rules provide place for affidavits and…..  Taking into consideration that affidavit material is extensive, at least I requested Ms Rischbieth to put argumentive material which was my argument before Administrative Appeal Tribunal on 15 July 1996 and also I requested Ms Rieschbieth to put my application for judicial review before Federal Court dated 25 November 1996 in my appeal book.  Ms Rischbieth simply refused.  I requested Ms Rischbieth to do this because in my today’s affidavit which I submitted to your Honour is attempt to…..like Social Security Appeal Tribunal, Administrative Review Officer and later on Administrative Appeal Tribunal to remove evidence which is vital to my matter and to falsify the issue which I am trying to put before the Court.  Every document which I filed which contained this evidence is simply removed from any documents which have been originally before…..Review Officer, later on before Social Security Appeal Tribunal, is not only attention given to these documents.  Does the decision maker, who was Mr Muller in Administrative Appeal Tribunal, he did not want to put to Federal Court my request on questions of law.

Therefore I would like to refer to your Honour to exhibit AA, the last page 26 of transcript of proceeding before the Administrative Review Tribunal.  This is this document.  Or they might have been yellow colour and Mr Muller expressly said he is not going to consider what happened back in 1984 but it had direct connection to my complaints under my agreement with Commonwealth Employment Service.

I believe that there is collusive agreement going between various Commonwealth agencies to cover up real issues which I wanted to present to the High Court.  My conclusion is I think – I believe that the Registrar in the High Court is the last frontier of public servant because this is, according to my belief, the arm of Executive Government which is clearly divided from judicial arm of government.  According to my belief, these people, you know, are just trying to conceal evidence which is vital because the Court is busy, Court can simply overlook important material which I want to present to the Court. 

At least I would like to request the Court to allow me to include this argumentive matter which was before Administrative Appeal Tribunal which is in my today’s affidavit.  This is in exhibit A1 which is just 12 pages of writing.  It is seal of Administrative Appeal Tribunal dated 15 July 1996 which clearly does the reasons for this material has been handed to the Administrative Appeal Tribunal.  Also, I would like to request the Court to let me include at least my application for judicial review which I filed in Federal Court in Brisbane on 25 November 1996.  This is in exhibit A3, your Honour.  This is purely argumentive matter, not affidavit material.

I think the Court, having this material before itself, will be assisted greatly by this material.  I may perhaps not have the time to refer all these issues to the Court within 20 minutes of time for the reason that, please, at first, English is my second language.  However, I do not have any problem in reading communication and then trying to be communicative in my oral communication but sometimes due to the circumstances which can go beyond my control, this material may be simply not referred by myself to the Court.  On this ground, I am just requesting that this material be included before the Court will have considered my application for leave to appeal in matter B46.

Also, I would like to bring the attention of your Honour to the last pages of my exhibit which was exhibit A8/9 and this is Federal Court authority, Edwards Hot Water System v Hart & Co Pty Ltd (1985) 9 FCR 537. What I am trying to point out now? Because I was little bit late with the submission of my application for judiciary review to the Federal Court – I was late one or two days – and for that reason I have to seek leave of the judge of the Federal Court who in my opinion sat as a Court of Appeal. It was her Honour Justice Kiefel. Justice Kiefel, in my understanding, when she was sitting as a Court of Appeal, granted me leave to make submissions – excuse me. Justice Kiefel granted me leave to file my application for judicial review of application, what I did. Actually, Justice Drummond from whose decision I am seeking review…... What I am trying just to point out, in this Federal Court Report has been held that if Court of Appeal makes its decision in its due process, therefore that decision can be overturned simply, only High Court has power to do it. But Justice Drummond dealt with the decision himself, and he changed the order of Justice Kiefel despite what the record of the Federal Court clearly indicates that if Justice Kiefel sat as a Court of Appeal, she already granted me leave, and therefore the decision of his Honour Justice Drummond, in my view, is wrong in law and should be quashed. This matter is now going to appeal to this Court, to the High Court.

I would like to just to draw attention of your Honour perhaps just to the order of Justice Kiefel which I exhibited today to this affidavit.  It is exhibit A4.  As I pointed out already, Her Honour Justice Kiefel, in my view, sat on 9 December 1996 as a Court of Appeal because Justice Kiefel considered my application to bring – I just simply misplaced it myself at the moment.  Justice Kiefel gave me an order a little bit earlier to bring my application under judicial review.  Her Honour on 9 December 1996 only gave for the directions, but I would like to direct your Honour to exhibit 5 and it was just three days before Her Honour Justice Kiefel made further directions.  From that letter your Honour can see that leave has been granted, and on that basis I conclude that Justice Kiefel sat as a Court of Appeal on 25 November 1996, according to the letter.

I submit that the decision of Justice Drummond from which I do appeal now, I am seeking leave to appeal, already has such quality that should be quashed according to the court’s record on the certiorari order.  For me, I simply have a number of actions which I see in Federal Court and I do now have a certain break in the span of time, considering what happened in 1995 until today, I simply see that the action of Federal Court and perhaps a Registrar in High Court can indicate some collusive agreement not to let this evidence see the light of day in order to defeat.  On this ground I would like to request the High Court to include me this argumentive material, which I indicated a few minutes ago which is my argument presented to the Administrative Appeals Tribunal on 15 July 1996 and also my application for judicial review which I filed on 25 November 1996.  Also, I would like to request the Court to let me include order made by Her Honour Justice Kiefel on 9 December 1996, and the letter of Mr Robinson who is Registry officer in Federal Court in Brisbane, and this document is exhibited as exhibit A5.  If Court cannot allow me to attach the other documents in leave to appeal book, I do not insist, but I request.  This is decision entirely left to the discretion of the High Court. 

My final submission is that the cost of today’s hearing will be respondent cost or the costs will be reserved until final conclusion of the

matter B46 before High Court.  This is all what I would like to submit today, your Honour.

HIS HONOUR:   All right, thank you, Mr Dudzinski.

This is an application for prerogative writs against the Senior Registrar and a former Deputy Registrar of the High Court.  The applicant has also made an application to this Court for special leave to appeal against a decision of the Full Court of the Federal Court dismissing an application by the applicant to that court.  It is sufficient for present purposes to say that the applicant makes a number of complaints relating to decisions by officials with respect to unemployment benefits.  The applicant has had those decisions reviewed by the appropriate review tribunal and has sought to challenge that review in the Federal Court.  It is not clear whether there has yet been a substantive hearing of that challenge. 

The present application is concerned with the material to be included in the application books on the hearing of an application for special leave by the applicant.  He seeks to have the application book index, as he would say, “corrected” by the insertion of material which the respondents had refused to include in them.  The documents which the applicant seeks to have included in the book run to several thousand pages.  The material is presented in a confused and confusing form.  For example, the affidavit of 11 May 1998 is stated as referring mainly to practice and procedure in relation to the matter in the Federal Court.  Other affidavits reproduce extracts from legislation, correspondence with court registries, and copies of correspondence with potential employers.  The material in question is prolix, diffuse, irrelevant, for the most part inadmissible and frequently unintelligible.

The application book, which has now been filed, reproduces all relevant reasons from the lower courts and tribunals, along with orders and summaries of argument.  Order 69A rule 10 of the High Court Rules deals with the preparation of application books.  Subrule (2) of rule 10 states that:

The contents of the application book shall be in accordance with an index settled by the Registrar after consultation with the parties.

Subrule (3) provides that:

The index shall list such documents as will enable the Court to determine the application.

In my opinion, the material which is contained in the book as it is presently constituted is sufficient for all relevant purposes.  Accordingly, I dismiss the application.

Is there anything further, Mr Dudzinski?

MR DUDZINSKI:   Yes, your Honour.  I submitted to Ms Rischbieth according to her – Ms Rischbieth sent me a letter requesting me, commanding me what kind of material I would like to include in my leave application book.  I indicated what kind of material I would like to have it, and because my opinion has not been taken under consideration fully, therefore when I filed leave to appeal application book and certificate of examination ‑ ‑ ‑

HIS HONOUR:   But Mr Dudzinski, please accept my assurance that everything you could possibly rely upon or need on your application for special leave is now in the book as constituted or proposed to be constituted.  You would not have time to refer to the material that you want to include.  As I have just said, most of it is entirely irrelevant, it is even inadmissible in form.

It infringes the rules of evidence.  It is just not material that you are entitled to rely upon.  I have looked at the material, I have considered it.  It would not assist you and you would not have time to use it.

MR DUDZINSKI:   Your Honour, if I can only point to one relevant matter in issue.  Ms Rischbieth put in application book application that was before Social Security Appeal Tribunal.  This document has not been before Federal Court at all.

HIS HONOUR:   Mr Dudzinski, you have already dealt with that.  That is in the material that I have considered.  When I said is there anything further, I was not inviting you to repeat what you had said before or to reargue the case.  Have you any further applications?

MR DUDZINSKI:   No, your Honour, not at all.

HIS HONOUR:   All right.  There is nothing further then.  I dismiss the application ‑ ‑ ‑

MR DUDZINSKI:   Sorry, can I just only repeat my request in relation to the costs.  Can costs be reserved, your Honour?

HIS HONOUR:   I have not made any order as to costs, Mr Dudzinski.  Nobody is here to seek an order for costs against you so I am not going to make any order for costs against you or for you of any kind. 

MR DUDZINSKI:   Thank you, your Honour, that is all.

HIS HONOUR:   Yes.  Adjourn the Court to a date to be fixed.

AT 12.06 PM THE MATTER WAS CONCLUDED