Dudzinski v Harris

[2003] FCA 237

FEDERAL COURT OF AUSTRALIA

Dudzinski v Harris [2003] FCA 237

WALDEMAR DUDZINSKI AND ANNA DUDZINSKI v BRIAN HARRIS, STEVE ULHMANN, S M ROSSINGTON AND DAVID ROSALKY

Q 61 OF 2001

DOWSETT J
18 MARCH 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 61 OF 2001

BETWEEN:

WALDEMAR DUDZINSKI
FIRST APPLICANT

ANNA DUDZINSKI
SECOND APPLICANT

AND:

BRIAN HARRIS
FIRST RESPONDENT

STEVE ULHMANN
SECOND RESPONDENT

S M ROSSINGTON
THIRD RESPONDENT

DAVID ROSALKY
FOURTH RESPONDENT

JUDGE:	DOWSETT J
DATE OF ORDER:	18 MARCH 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application to amend the statement of claim is refused.

2.Leave to read and file the affidavit of the second applicant sworn 18 March 2003 is also refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 61 OF 2001

BETWEEN:

WALDEMAR DUDZINSKI
FIRST APPLICANT

ANNA DUDZINSKI
SECOND APPLICANT

AND:

BRIAN HARRIS
FIRST RESPONDENT

STEVE ULHMANN
SECOND RESPONDENT

S M ROSSINGTON
THIRD RESPONDENT

DAVID ROSALKY
FOURTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	18 MARCH 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. These proceedings were adjourned on 30 September last year as a result of circumstances which I have previously described.  When the proceedings commenced this morning, the second applicant sought leave to read and file an affidavit dated 18 March 2003 which exhibits various documents.  Mr Belcher, who appears for the respondents, asserted that the affidavit should not be read because it canvasses an issue which is not raised by the amended statement of claim, filed 18 April 2001.  In that document the second applicant pleads, at par 6.3.2:

   It is alleged that this Preparation for Work Agreement (PFWA) is not Newstart Activity Agreement (NSA).  That Preparation for Work Agreement (PFWA) does not satisfy provisions of Social Security Act 1991 (Cth) as it is not approved by the Employment Secretary but only by the Secretary to the Department of Family and Community Services. The legislation says it must be approved by both Secretaries. For those reasons supra and inter alia the second applicant was advised by the first applicant to rescind from this agreement and what she did by giving notice to the second respondent on 04/12/2000.

2. It may be accepted for present purposes that the validity or otherwise of the Preparation for Work Agreement is a relevant issue in these proceedings.  Clearly, the challenge to its validity is that it was in a form approved by the Secretary to the Department of Family and Community Services, but not by the Employment Secretary as allegedly required by law.  However the documents which are annexed to the affidavit in question appear to relate only to the question of approval of the relevant document by the Secretary to the Department of Family and Community Services.  The second applicant has agreed in the course of argument today that she wishes to raise that point, referring to the documents at p 8.  It is under the hand of Frances Davies, Assistant Secretary, Parenting and Employment Programs Branch (apparently within the Department of Family and Community Services) and appears to approve use of a particular form, such approval being dated 24 September 2001.  The form appears to be that executed by the second applicant.

3. Mrs Dudzinski wishes to argue that any form in use before that date (and therefore that which she was required to execute) was not relevantly approved.  In my view, that inference does not necessarily follow.  The document says nothing about whether any form had been previously approved.  Mr Belcher was, this morning, first told of the second applicant’s intention to raise this issue, although it seems that the point, or some similar point, has been previously raised in other proceedings.  Mr Belcher says that he is not in a position to rebut any such argument and points out that it is not raised in the statement of claim as it presently stands.  In fact, the contrary is positively asserted.

4. These proceedings have been on foot for some time.  The original application was filed on 29 March 2001, and the matter was listed for trial in September last year.  It is far too late to seek an amendment to the pleadings in the absence of compelling circumstances.  The application to amend the statement of claim is therefore refused.  It follows that I will refuse leave to read the affidavit.  It has no relevance to the proceedings as presently constituted.  In any event the document at p 8 does not necessarily bear the meaning which Mrs Dudzinski attributes to it.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             14 April 2003

The Applicants appeared In Person.
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	18 March 2003
Date of Judgment:	18 March 2003