Dudzinski v Harris

[2002] FCA 1272

FEDERAL COURT OF AUSTRALIA

Dudzinski v Harris [2002] FCA 1272

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

Q 61 OF 2001

DOWSETT J
24 SEPTEMBER 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q61 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:

24 SEPTEMBER 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application for an adjournment be declined;

2.The application to issue a subpoena against “Job Mission” be declined;

3.The application for subpoenas against the first and third respondents be declined;

4.The applicants pay the respondents’ costs of the hearing today, so far as they relate to the application for an adjournment of the trial; and

5.There be no order as to the costs of the application for the issue of subpoenas.

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	Q61 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:	24 SEPTEMBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1  This is an application for prerogative relief against officers of the Department of Family and Community Service arising out of a decision concerning the entitlements of the applicants to benefits.  It is not necessary to say any more about it for the moment.

2  On 5 April 2002, the matter was before me for directions.  At that time I listed it for hearing for two days commencing on 30 September, that is next Monday.  The applicants were ordered to file and serve any application to amend the statement of claim on or before 3 May 2002, and the matter was listed for further mention on 10 May to hear argument in connection with any proposed amendments.  When the matter was called on 10 May, the applicants indicated that no proposed amendment had been prepared and that they did not, at that stage, propose to make any amendments.  I explained to Mr Dudzinski that if he or his wife wished to amend their statement of claim they should do so promptly.  I recall using words to the effect that the closer the matter came to the fixed trial dates, the more difficult it would be to satisfy the Court that any amendment should be allowed.  The applicants have subsequently taken no steps to amend the pleadings.

3  Some days ago they indicated to the Registry that they desired to vacate the hearing dates.  I directed that they make application for an adjournment.  Such an application has now been made.  The applicants advance three bases for their application.  The first is that they now wish to amend but are not yet in a position to do so.  The second relates to the availability of witnesses.  The third ground is a general allegation that the applicants have been busy with a High Court matter and haven’t been able to prepare.  As to that ground, I can only say that they have been aware of the trial dates since 5 April.  I simply do not accept that they have been spending every waking hour since that time in preparing for the High Court so as to prevent them preparing this matter which is, prima facie, a relatively simple one.

4  As to the question of amendment, they have been aware of the need for expedition in that regard since April or, at the latest, May of this year.  They have chosen to take no step to amend.  Further, even at this stage, it is not clear to me that there is any useful amendment which can be made.  The only suggestion appears to be that they might wish to raise an action for libel.  As far as I can see, the alleged defamatory statement occurred in Queensland, and so a cause of action in libel would not be available.  In any event, the words in question seem to me to be quite incapable of carrying the imputation attributed to them by the applicants or any other defamatory imputation.  In any event, one might well wonder about the wisdom of joining an action for defamation with an application for prerogative relief.  I certainly would not allow the applicants to raise a cause of action in defamation on the material presently before me.  There can be no basis for an adjournment arising out of that possible amendment.  As no other proposed amendment can be identified from the material, I see no reason to adjourn the matter to allow amendment.  

5  As to the question of witnesses, the applicants’ concern seems to be that certain persons in the Department are not to be called by the respondent.  The applicants would like to call them but have taken no steps to do so.  That seems to me to be a matter for subpoenas.  I have previously indicated to the applicants through the registry that I will not allow subpoenas to be issued unless I have affidavits from the applicants explaining why they wish to issue them.  To date, no such affidavits have been received.  It is for the applicants to pursue the subpoena process if they require these people to attend to give evidence.  In the circumstances, I decline the application for an adjournment.  The hearing will proceed next week.

6  The applicants have asked for leave to issue a subpoena against a third party, which has been described as “Job Mission”, an organisation which is involved in the Centrelink operation as one of the parties contracting for the provision of employment services.   Mr Dudzinski has asked that they be ordered to produce any contract which they may have with the Commonwealth pursuant to which they provide employment services as part of the Centrelink operation.  I cannot see that such a contract can have any relevance to the circumstances in which the decision under review was made or as to its correctness.  I decline to issue such a subpoena. 

7  The applicants have also asked for subpoenas against the first and third respondents who have not presently sworn affidavits.  I see no reason to believe, on what I have been told, that they would have anything to add to the applicants’ case.  It seems to me that the applicants are merely seeking to go on fishing expeditions with respect to these witnesses.  I am not willing to have the authority of the Court used for that purpose.  The application for subpoenas is therefore declined.  I note that the actual decision-maker, Mr Uhlmann, has sworn an affidavit and will be available for cross-examination. 

8  On the motion for an adjournment of the trial, I order that the applicants pay the respondents’ costs of the hearing today.  There will be no order as to the costs of the application for the issue of subpoenas.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            17 October 2002

The Applicants Appeared in Person
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	24 September 2002
Date of Judgment:	24 September 2002