Dudzinski v Kellow

[2003] HCATrans 376

[2003] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B108 of 2002

B e t w e e n -

WALDEMAR DUDZINSKI

Applicant

and

AYNSLEY KELLOW

First Respondent

ROY RICKSON

Second Respondent

ERROL STOCK

Third Respondent

BILL HOGARTH

Fourth Respondent

CORDIA CHU

Fifth Respondent

KEES HULSMAN

Sixth Respondent

LYN HOLMAN

Seventh Respondent

COLIN McANDREW

Eighth Respondent

JOHN SCOTT

Ninth Respondent

GRIFFITH UNIVERSITY

Tenth Respondent

Application to set aside certificate of deemed abandonment

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 18 SEPTEMBER 2003, AT 4.13 PM

Copyright in the High Court of Australia

__________________

MR W. DUDZINSKI appeared in person.

MS S.E. BROWN:   Your Honour, I appear for the respondents.  (instructed by Minter Ellison)

HIS HONOUR:   All right, Mr Dudzinski.  The application that you have made in this matter has been deemed to be abandoned, is that correct?

MR DUDZINSKI:   Your Honour, yes, but this is some other matter.

HIS HONOUR:   You want me to disqualify myself?

MR DUDZINSKI:   That is correct, your Honour.

HIS HONOUR:   Have you anything to say over and above what you said ‑ ‑ ‑

MR DUDZINSKI:   Your Honour, as I have said before, your Honour sat on 29 January of this year on a matter involving similar and relevant issues and your Honour decided in favour of the respondent.  Your Honour based his decision on another decision, but your Honour give little weight to…..and this is an indication of bias also, in my submission, and ‑ ‑ ‑

HIS HONOUR:   You say this is different from the last matter because this is actually a matter that I did make a decision in, is that right?  It is more than merely procedural, is that correct?

MR DUDZINSKI:   Your Honour, my point is that your Honour sat on matters which did involve similar and relevant issues and by law your Honour is prohibited to – a judge is prohibited to sit on his own case.  It is just a number of authorities as I mentioned before.  One of them is ‑ ‑ ‑

HIS HONOUR:   But I did not have anything to do with the abandonment, Mr Dudzinski.  That just followed from the Rules ‑ ‑ ‑

MR DUDZINSKI:   Your Honour, we are talking about ‑ ‑ ‑

HIS HONOUR:   No, listen to me for a moment.

MR DUDZINSKI:   I am sorry.

HIS HONOUR:   It will be in your interest to listen to me, Mr Dudzinski.  I made a decision that was adverse to you, but the matter now before the Court is simply whether you can revive your application which, by force of the Rules of the Court, has been deemed to be abandoned.  Are you listening to me?

MR DUDZINSKI:   Pardon?

HIS HONOUR:   Will you listen to me?  I am not talking to empty air.  I am trying to help you, Mr Dudzinski.

MR DUDZINSKI:   Thank you, your Honour.  I am being corrected.

HIS HONOUR:   The decision today is – or, rather, the decision that is in issue today is not a decision that I made.  It is in relation to a matter that flows from the Rules of Court.  Your application has been deemed to be abandoned because certain things were not done in time.  Now, I did not make an order that your application should be abandoned.  That follows from the Rules.

MR DUDZINSKI:   Your Honour, I did not complete my submission concerning your Honour’s disqualification.  Maybe can I hand to your Honour authority which is on this point?

HIS HONOUR:   Yes, certainly.  Mr Dudzinski, this is a decision of the Court of Appeal of New South Wales.  It is not binding on this Court, you understand ‑ ‑ ‑

MR DUDZINSKI:   Yes, I understand ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑  although, of course, it is a decision to which great deference would be paid.  But what it holds is that a judge should disqualify himself if the judge has formed opinions which might affect his determination of outstanding matters ‑ ‑ ‑

MR DUDZINSKI:   That is not correct.

HIS HONOUR:   ‑ ‑ ‑  and, in particular, if there is a question of credibility involved.  Now, you have never given evidence before me.  I have never made a finding against you in relation to credit.  I certainly made a decision on a related matter, but it is fairly distantly related.  Let me see what Ms Brown says about this.  Just sit down for a moment, Mr Dudzinski.  What do you say, Ms Brown?

MS BROWN:    Your Honour, in terms of the particular matter before you, the previous decision which can at all be related to what you are hearing presently could only be the stay application.  That is not a decision on merit.  It involves no finding of credit, and, in my submission, there can ‑ ‑ ‑

HIS HONOUR:   That is all I did, did I not?  I refused to grant a stay.

MS BROWN:   Refused to grant a stay of application on 29 January 2003, your Honour.  I have a copy of that decision, if you would like to review it again.  So, on that basis, and in terms of the previous decisions of your Honour, your Honour, the only one of which I am aware – and it is only through an incidental matter – is a refusal to allow a writ to issue, presumably pursuant to Order 58 rule 4.  Now, that would emanate from a decision, really, that there is no substantiation in law.  Once again, there is no matter of credit involved, from which there could be any sort of apprehension of bias.

In my submission, the decision which you have just been handed up is, as your Honour rightly points out, a very different situation, because there the judge concerned had actually made indications about the credit of potential witnesses in the trial which he was going to hear.  The other thing I noticed, just in passing, is that Chief Justice Gleeson was actually a dissenting judge in that decision, but the decision ‑ ‑ ‑

HIS HONOUR:   Well, there has been some water under the bridge since Spedley, of course ‑ ‑ ‑

MS BROWN:    There certainly has been.  Your Honour, the decision of Justice Hayne in Helljay Investments, in my submission, neatly summarises the relevant principles, particularly that what Justice Mason said in JRL; Ex parte CJL, which I think the Full Federal Court affirmed again in Johnson v Johnson, but in that decision, in particular, it was said:

It seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation.  It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.  In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” ‑ ‑ ‑

HIS HONOUR:   Ms Brown, what happened in Helljay?  Was there an application for Justice Hayne to disqualify himself?

MS BROWN:    There was.  There was, your Honour, on the basis that he had made previous ‑ ‑ ‑

HIS HONOUR:   That was that tax case, was it not?

MS BROWN:    It was a taxation case.  He had made previous indications about the particular area of law, and that was the basis upon which he was asked to disqualify himself.

HIS HONOUR:   I suppose this is a little bit different from that, is it not?

MS BROWN:    Well, it is, your Honour, but still there is no finding of credit here and there is, in my submission, no basis upon which there could be any reasonable apprehension of bias.

HIS HONOUR:   Thank you, Ms Brown.

MS BROWN:    Your Honour, would you like me to hand up a copy of that case?

HIS HONOUR:   Yes, thank you.  Thank you for your assistance, too.

MS BROWN:    Your Honour, it was not a taxation case, sorry.  That was another case that I was thinking of.  It was actually in relation to a winding up application and it was argued, because of his Honour’s findings in Joose v Australian Securities and Investment Commission, it was inappropriate that he hear the application, because the same historical facts would be relied upon.

HIS HONOUR:   Do you know what the Order 58 rule 4 decision I made was, Ms Brown?

MS BROWN:    Your Honour, I am sorry, I cannot help you.  The only reason that I have any recollection of it is because I thought I saw a decision of Mr Justice McHugh refusing, I think, leave to appeal from that decision.  Because it was not relevant to this particular application, I did not take any further note of it, I am sorry.

HIS HONOUR:   And Mr Dudzinski is no stranger to courts, so it is sometimes easy to get one case confused with another.

MS BROWN:    Well, that is correct, your Honour.  The reference that I saw was simply the one line, just refusing leave, so there was no description of what the matter was about.

HIS HONOUR:   And this application for special leave is to appeal against the decision of the Full Federal Court, is it not?

MS BROWN:    Yes, your Honour, in relation to ‑ ‑ ‑

HIS HONOUR:   It is a sequestration order, is it?

MS BROWN:    Bankruptcy notice.

HIS HONOUR:   A sequestration order has been made?

MS BROWN:    Yes, it has, and the appeal has been heard and the appeal has been dismissed.

HIS HONOUR:   There is a further complication, I suppose, whether Mr Dudzinski can pursue it because he is a bankrupt, although it is his own application and his own bankruptcy, is it not, really?

MS BROWN:    That is right, your Honour, and I do not think there are any definitive cases on it.  There are some single judgments in the Federal Court which suggest that that is not property which vests in the official trustee in bankruptcy, so therefore it is not actually one of the actions over which he has jurisdiction.

HIS HONOUR:   I am inclined to think that is right, with respect to ‑ ‑ ‑

MS BROWN:   I think your Honour and Mr Justice Kirby made a comment to similar effect in Guss v Johnstone, just in the exchange with the counsel there, that you thought that was probably case, but, as far as I have been able to find, that is really the only decision.

HIS HONOUR:   Well, that is, again, most helpful to me, thank you.  Ms Brown, as much as I hate having to do this, because of the inconvenience to everybody, including yourself, I just feel that having made two orders adverse to Mr Dudzinski, in one of which there is a relationship to the matter before me now, I should perhaps ‑ ‑ ‑

MR DUDZINSKI:   Your Honour, if I can just say something.  I did not ‑ ‑ ‑

HIS HONOUR:   No, wait, I am speaking to Ms Brown, Mr Dudzinski.  I think perhaps I should reluctantly disqualify myself.

MS BROWN:    Well, your Honour, there is obviously nothing I can say to that.

HIS HONOUR:   No, I do it reluctantly, Ms Brown, as you would understand.

MS BROWN:    Yes, your Honour.

HIS HONOUR:   I am grateful to you for your assistance.  Mr Dudzinski, I am going to accede to your application to disqualify myself on this.

MR DUDZINSKI:   Your Honour, I did not submit to your Honour all the grounds.  Another ground is with your Honour the judgment matter on 29 January 2003.

HIS HONOUR:   But, Mr Dudzinski, you have won.  I am not going to hear the matter.  I am going to get another Judge to hear it on another occasion.  I am going to disqualify myself.  Did you hear what I said?

MR DUDZINSKI:   Thank you.

HIS HONOUR:   So the matter will have to be adjourned.  The matter will have to be adjourned to a date to be fixed, to be heard by another Judge.  I will reserve the costs, Ms Brown.

MS BROWN:    That would be appropriate, your Honour.

HIS HONOUR:   I am sorry, I know it is inconvenient to you to have to do this.

MS BROWN:    Not at all, your Honour.

HIS HONOUR:   It is inconvenient to a litigant in your position.  Very well.  I will have this matter dealt with by another Judge.  Anything further, Mr Dudzinski?  I reserve the costs.

MR DUDZINSKI:   Does your Honour think that I should hand to your Honour submissions for the hearing, or if your Honour is not going to ‑ ‑ ‑

HIS HONOUR:   No, I am not going to – you do not want me to deal with it.  Why should I read it, Mr Dudzinski?

MR DUDZINSKI:   Thank you, your Honour.

HIS HONOUR:   All right.  Nothing further then?

MS BROWN:    No, your Honour.

HIS HONOUR:   Thank you.

AT 4.29 PM THE MATTER WAS CONCLUDED