Dudzinski v Kellow - [1999] FCA 1665

FEDERAL COURT OF AUSTRALIA
Dudzinski v Kellow [1999] FCA 1665
WALDEMAR DUDZINSKI v AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT and GRIFFITH UNIVERSITY
Q 110 OF 1999
SPENDER J
23 NOVEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 110 OF 1999

BETWEEN:

WALDEMAR DUDZINSKI
Applicant

AND:

AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT and GRIFFITH UNIVERSITY
Respondents

JUDGE:

SPENDER J

DATE OF ORDER:

23 NOVEMBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for a stay of each of the orders of the Full Court of the Federal Court, made on 27 August 1999, is refused.
2.The applicant on the motion pay the costs of the respondents on the motion, to be taxed if not agreed.

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 110 OF 1999

BETWEEN:

WALDEMAR DUDZINSKI
Applicant

AND:

AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT and GRIFFITH UNIVERSITY
Respondents

JUDGE:

SPENDER J

DATE:

23 NOVEMBER 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

I have before me a notice of motion filed on 5 November 1999 by Waldemar Dudzinski. This motion seeks orders that the order of the Full Court of the Federal Court made on 27 August 1999, that the application for leave to appeal is dismissed "…be stayed pending special leave to appeal B56/99 and the appeal to the High Court of Australia". A second order is sought on the motion, that the order of the Full Court of the Federal Court of 27 August 1999, that the applicant is to pay the respondents' costs of the application for leave "…be stayed pending special leave to appeal B56/99 and appeal to the High Court of Australia".
It is clear that the first order sought is misconceived. The general principles upon which this Court will order a stay were referred to by Cooper J in Carter v Geoff Layton & CoPty Ltd (1993) 43 FCR 392, where his Honour said at 394:
"The court will not stay proceedings pending the hearing of an application for special leave to appeal unless satisfied that a stay is required to preserve the subject matter of the litigation (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) at 683; McMillan v Hambledon Nominees Pty Ltd (No 2) [1991] 1 Qd R 118 (FC); Manfal Pty Ltd (In liq) v Trade Practices Commission (1990) 65 ALJR 256 at 257; Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177 at 178) or to otherwise ensure that any right to appeal is not rendered nugatory eg where execution would deprive an appellant of the means of prosecuting the appeal (Smith, Hogg & Co Ltd v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dudzinski v Kellow

Details

AGLC: Dudzinski v Kellow [1999] FCA 1665
Case: [1999] FCA 1665
Decision Date: 23 NOVEMBER 1999

CaseChat Overview and Summary

The case of Dudzinski v Kellow involved the applicant seeking to stay orders of the Full Court of the Federal Court. The applicant, Dudzinski, sought to prevent the enforcement of the Full Court's orders, which were related to proceedings involving a dispute between the applicant and the respondents. The Full Court's orders were made on 27 August 1999 and were the subject of an appeal to the High Court.

The primary legal issue before the High Court was whether the applicant had grounds to seek a stay of the Full Court's orders. The applicant argued that the Full Court had erred in law and that the orders should be set aside. The respondents contended that the applicant's application for a stay should be refused and that the Full Court's orders should be upheld.

The High Court considered the applicant's arguments and the merits of the case. The Court determined that the applicant had not demonstrated sufficient grounds for a stay of the Full Court's orders. The Court found that the applicant's appeal did not present a compelling case for intervention and that the Full Court's orders should stand. The High Court also considered the principle of finality in legal proceedings and the importance of upholding the decisions of lower courts unless there are clear grounds for appeal.

As a result of the Court's decision, the application for a stay of the Full Court's orders was refused. The applicant was ordered to pay the respondents' costs of the motion, to be taxed if not agreed. This outcome reflected the High Court's view that the applicant's appeal did not warrant the intervention of staying the Full Court's orders and that the respondents' position should be upheld.

Orders

Orders of the court

1. The application for a stay of each of the orders of the Full Court of the Federal Court, made on 27 August 1999, is refused.

2. The applicant on the motion pay the costs of the respondents on the motion, to be taxed if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPENDER J

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Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 110 OF 1999

BETWEEN:	WALDEMAR DUDZINSKI Applicant
AND:	AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT and GRIFFITH UNIVERSITY Respondents
JUDGE:	SPENDER J
DATE OF ORDER:	23 NOVEMBER 1999
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	23 NOVEMBER 1999
PLACE:	BRISBANE