Dudzinski v Harris

[2002] FCA 800

FEDERAL COURT OF AUSTRALIA

Dudzinski v Harris [2002] FCA 800

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

Q 61 OF 2001

DOWSETT J
10 MAY 2002
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:

10 MAY 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The motion for extension of time is dismissed

2.The applicants pay the respondents costs of today

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:	10 MAY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 5 April, I ordered that the applicants make any application to amend the statement of claim on or before 3 May 2002, and that any such application be heard today.  I should say that Mr Dudzinski appears for both himself and his wife, who are both applicants.  She has been in Court throughout the hearing today.  The applicants have not yet made an application to amend their statement of claim.  They have rather asked for an extension of time in which to do so.  The matter has been listed for trial in September.  In all of the circumstances, it seems to me that there is no point in fixing a time for making such an application.  Mr Dudzinski says that the applicants have failed to comply with the last order because of the pressure of other litigation.  Whether or not that is so, I do not propose to make another order, given the likelihood that it will again be ignored.

2. I have made it clear to Mr Dudzinski that if the applicants wish to amend their pleading, they must make an application promptly, and that the longer they leave it, the less likely it is to be successful.  In those circumstances, I can see no point in making any order with respect to the application for extension of time.  It is better that the applicants be left to make their application when they are ready to do so, although they must bear the consequences of any delay in that regard.  The motion for extension of time is therefore dismissed. 

3. Mr Dudzinski has, in the course of argument, indicated to me that he has a partial statement of claim ready for consideration, but I have declined to deal with anything other than an application to amend the statement of claim so as to produce the document which the applicants presently intend to be the statement of claim at trial. I can see no point in considering a partial amendment at this stage.

4. As to the question of the costs of today, the hearing date was fixed upon the basis that there would be an application for an amendment.  Mr Dudzinski took out a motion returnable today, seeking an extension of time.  In those circumstances, it seems that the applicants should pay the costs of today, to the extent that they have been thrown away, as a result of their failure to make an application for an amendment.  I will therefore order that the applicants pay the respondents’ costs of today.

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:            21 June 2002

The First Applicant appeared In Person and on behalf of the Second Applicant.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 May 2002
Date of Judgment:	10 May 2002