Dudzinski v Andrew Aitken "Able" Supporting & Training Agency

[1998] FCA 1802

80.z F

JUDGMENT No. .L ....... ..,. J L.28

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 117 of 1997

BETWEEN:

WALDEMAR DUDZINSKI

APPLICANT

AND:

ANDREW AITKEN "ABLE" SUPPORTING AND TRAINING

AGENCY

RESPONDENT

JUDGE:	EINFELD J
DATE OF ORDER:	23 APRIL 1998
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application for leave to appeal from the decision of Cooper J on 13 February

1998 be dismissed.

2. The respondent file and serve an amended defence fully particularising the defence and allegations on which they rely by not later than 4pm on 4 May 1998.

3. The balance of the motion be dismissed.

4. The case be cross vested to the Queensland Supreme Court of Queensland, this order to take effect as and from 7 May 1998.

Note:

Settlement and entry of orders is dealt with in Order 36 of the Federal Court

Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 117 of 1997

BETWEEN:

WALDEMAR DUDZINSKI

APPLICANT

AND:

ANDREW AITKEN "ABLE" SUPPORTING AND TRAINING

AGENCY

RESPONDENT

JUDGE:	EINFELD J
DATE:	23 APRIL 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

By a motion dated 23 February 1998, the applicant moves for leave to appeal from the decision of Justice Cooper, given on 13 February 1998, dismissing the applicant's application for summary judgment in this matter. The form of the notice of motion is not expressed as an application for leave to appeal but it emerges quite clearly that that is what the applicant seeks, both from the form of the motion and from the written submissions presented to the Court today in its support.

The applicant submits that the judgment of Justice Cooper is attended by sufficient doubt as to warrant it to be considered by a Full Court. He alleges also that in the hearing before his Honour, he was denied an opportunity to respond to a draft affidavit submitted by the respondent on the date of the hearing. I am not aware that it is alleged that Justice Cooper actually paid any regard to the draft affidavit or even saw it, but in any event the applicant's main assault on it is that it is a false statement under oath. I have read the document in question and, as it seems to me, even if his Honour saw it at the time, and prior to his judgment, he did not rely on it.

The applicant makes a number of other assertions in support of his application for leave. He says amongst other things that the respondent's draft affidavit did not state the defence "clearly and concisely" and did not state the facts relied on in support of the defence. It is true that the defence that has been filed and that was annexed to the respondent's affidavit merely denies or does not admit the paragraphs of the statement of claim, and it is thus a manifestly inadequate statement of the defence. But it does not constitute grounds for summary judgment. The appropriate course is for the Court to order that the respondent plead his specific defences together with the assertions of fact upon which each defence is based.

The applicant also says that the respondent's draft affidavit is inadmissible or ought to be rejected, because on its face it states that it was being sworn on behalf of not merely the deponent himself, but on behalf of all his partners in the agency named. The applicant argues that a person making an affidavit verifying a cause of action must swear to all the facts necessary to verify that action and must not swear on behalf of others. The applicant also submits that the respondent's affidavit is not admissible because it was sworn on information and belief. Both of these last two assertions are correct statements of general principle but again do not give rise to an order for summary judgment but rather to an order that further affidavits be filed.

The applicant submits further that the reference by Justice Cooper to the defence of qualified privilege to the defamation action is appealable because the respondent is not entitled to qualified privilege when his statements about the applicant were false and malicious. As I pointed out to the applicant in argument, this is not a matter which can be asserted from the Bar table. The applicant may be able to prove that the statements made about him by the respondent were false and malicious, in which case the defence of qualified privilege will not be available, but that matter must be the subject of evidence, both as to the falsity and the malice.

To the extent to which his statement of claim is deficient, the applicant says that he is protected by a rule providing that not every fact alleged in a statement of claim has to be verified. Again, that is a statement of truth in general principle. But as Justice Cooper

decided, it is not appropriate to raise it at this point. For my part I cannot see that the defence produced by the respondent is so hopeless as to provide no issue for trial. Put another way, if everything in the defence - even in its present inadequate form - was accepted, the applicant would have not a judgment in his favour, but a judgment against him. Accordingly, it is my view that the judgment of Justice Cooper is not attended by any doubt at all, and that there would be no point in a Full Court being constituted to hear an appeal from it. The applicant will have every opportunity to present his case, and to succeed in that case, but he is certainly not entitled in my opinion to summary judgment on his claim. Accordingly, the application for leave to appeal is dismissed.

That gives rise to the two matters which I discussed a moment ago. The first is the form of the defence. I have said that the defence is quite inadequate and must be the subject of an order for amendment to provide proper particularisation. A defence must set out not merely the denials of the claims made by the applicant, but the specific defences and allegations made by the respondent in answer to the applicant's claim, without which the defence might be subject to an application to strike it out. The respondent will therefore be ordered to file an amended defence setting out full particulars of the case that it wishes to make in answer to the applicant's claim, together with the facts upon which those allegations and denials are based.

The second matter relates to the form and relevance of some affidavits. I am not entirely aware of the situation with regard to the affidavit evidence. In support of the applicant's notice of motion dated 23 February 1998, presently before the Court, it seems that affidavits presumably filed in the motion for summary judgment were sought to be used. The motion for summary judgment itself appears to have been filed in December 1997 and supported by certain affidavits filed subsequently, of which there appears to have been one filed contemporaneously with the motion, four later affidavits of the applicant and at least two on behalf of the respondent.

Because of the immense number of interlocutory proceedings that have taken place in this case, it is difficult to allocate a particular affidavit to a particular motion. This difficulty is compounded because some affidavits appear to cover quite a number of different matters, not

all of which appear to be relevant to an application for summary judgment. I think that where there is more than one interlocutory proceeding, it is always desirable that the parties mark any affidavit with a sub-heading indicating the matter in which the affidavit is being filed. Otherwise the Court is forced to read large numbers of affidavits that do not have any relevance to the motion in hand, or which are partly relevant to the motion in hand and partly relevant to other matters.

I therefore will not make any orders concerning the form of affidavits, but rather emphasise some of the matters which the applicant correctly submitted, namely, that if affidavits are designed to prove a contested fact, they cannot do so on information and belief. They cannot do so when they are said to be filed on behalf of persons other than the deponent, and they cannot prove anything by any other form of hearsay evidence, unless the Evidence Act expressly permits it.

During the course of the hearing I raised the issue of whether this case should be in the Federal Court at all. The application in this matter was filed on 20 October 1997 and was followed by statement of claim on 24 October 1997. The statement of claim is headed 'Subsequently Amended' but it does not appear that there was, in fact, a subsequent amendment; rather it seems that this document itself is an amended statement of claim. In any event the applicant has correctly submitted that his case is fundamentally in common law in defamation, negligence and possibly deceit. Actions such as these are normally tried in State Supreme Courts, especially defamation actions which normally give the parties the right to a trial by jury. They are matters which are not within the ordinary primary jurisdiction and purview of the Federal Court where juries are a rarity.

It is true that in both his application and his amended statement of claim there are applications under the Trade Practices Act, specifically sections 51A, 52(1) and 82. However, both the pleadings and the oral and written submissions have made clear that the Trade Practices Act allegations are at best subsidiary to and only supportive of the common law actions, in that what is being alleged is that the respondent should be found to have engaged in misleading and deceptive conduct in relation to the very same statements and documents which form the basis of the actions in defamation and negligence.

The applicant said that he was surprised to learn that the Federal Court was not a Court dealing with the common law. I pointed out that the Federal Court does deal with common law matters but only as an adjunct in its accrued jurisdiction when the substance of the claim before the Court was a predominantly federal matter. This is not such a case. Here the federal element - that is the allegation of misleading and deceptive conduct under the Trade

Practices Act - is very subsidiary to the claims in defamation and negligence.

As it seems to me, it is much more convenient in the administration of justice that those common law concepts be tried and dealt with in the Queensland Supreme Court. Using the power given to me under the cross-vesting legislation, I therefore cross-vest the matter to the Queensland Supreme Court. That cross-vesting is to take effect as and from 7 May 1998 to permit the amended defence to be filed and served by not later than 4 pm on Monday 4 May 1998.

[AFTER DISCUSSION]

The costs of the motion will be costs in the cause. It does not seem to me that the matter is so clear as to make an order in favour of the respondent, even though the motion has been dismissed, for the reason that the defence is manifestly inadequate and had it been properly drafted, this motion may never have seen the light of day.

I certify that this and the preceding

four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld

Associate: N f l L

Dated: 25 May 1998