Dudzinski v Harris

[2001] FCA 829

FEDERAL COURT OF AUSTRALIA

Dudzinski v Harris [2001] FCA 829

WALDEMAR DUDZINSKI AND ANNA DUDZINSKI v BRIAN HARRIS, STEVE ULHMANN, S.M. ROSSINGTON AND DAVID ROSALKY
Q 61 OF 2001

DRUMMOND J
21 JUNE 2001
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:	DRUMMOND J
DATE OF ORDER:	21 JUNE 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The notice of motion in relation to the claim for interlocutory relief in respect of Newstart Allowance be dismissed.

2.There be no order as to the costs of today’s hearing.

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:	DRUMMOND J
DATE:	21 JUNE 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I have before me an application for an interlocutory order, directing the various respondents to pay to the second applicant forthwith Newstart Allowance for the period 20 December 2000 until 20 February 2001.  The motion for interlocutory relief also sought an order for the payment to the first applicant of Partner Allowance from 20 February 2001 until 20 June 2001.  I have already dealt, by consent, with the second part of the application.  The consent order provides for payment of the Partner Allowance in question from 20 February 2001, the date referred to in the notice of motion, until Mrs Dudzinski ceases to be qualified to receive such payments.

2. The application in relation to Newstart Allowance for the December 2000 to February 2001 period is a renewal of the application that came before Dowsett J for similar interlocutory orders on 2 April 2001.  His Honour then refused that relief saying that he was not satisfied that there was a serious question to be tried in the case, nor did he think that the balance of convenience could be said to favour the grant of interlocutory relief.  He therefore declined to grant the application.  An application was brought before his Honour on 24 April 2001 for leave to appeal that decision and his Honour refused such leave.

3. Notwithstanding all that, the application for interlocutory relief in respect of the Newstart Allowance has been pressed.  The background to the claim in respect of Newstart Allowance consists of a long-running dispute between the Dudzinskis and the Department of Family and Community Services (“the Department”) over whether Mrs Dudzinski is prepared to enter into agreements of the kind proffered on behalf of the Department, upon which the payment of Newstart Allowance is conditional.  Dowsett J deals with the most recent episode in this long running dispute in his reasons of 2 April 2001.  I have dealt with earlier episodes in the same dispute in the reasons I gave in the proceedings between Mr and Mrs Dudzinski and the Department by judgment of 17 November 2000.

4. It is not open to a litigant who has been unsuccessful in obtaining interlocutory relief simply to renew the claim for that relief before the same or another judge.  It is only appropriate for an applicant, unsuccessful in obtaining interlocutory relief, to obtain by a second application that relief if it can be demonstrated that relevant circumstances have changed.

5. The only change in circumstances that I can see since the proceedings before Dowsett J are that the Dudzinskis have been served with a notice to quit the premises they are occupying for non-payment of rent, which notice expires tomorrow.  That does not, however, deal with the basic problem that Dowsett J refused the application for interlocutory relief on the ground that the applicants had failed to show a serious question to be tried as to the entitlement to the Newstart Allowance in the two-month period in question.  For that reason, absence of change in relevant circumstances, there is no ground for the grant of the interlocutory relief sought today.  The notice of motion in relation to the claim for interlocutory relief in respect of Newstart Allowance is therefore dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:  Dated:             28 June 2001

Counsel for the Applicants:	The first applicant appeared for himself and the second applicant.
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	21 June 2001
Date of Judgment:	21 June 2001