Dudzinski v Kellow - [1999] FCA 1264

FEDERAL COURT OF AUSTRALIA
Dudzinski v Kellow [1999] FCA 1264
PRACTICE AND PROCEDURE – pleadings – strike out – stay of proceedings suitable for District Court – application for leave to appeal – interlocutory decision – principles – decision not attended by doubt – application for leave dismissed.
Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251, followed
Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391, cited
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, cited
Niemann v Electronic Industries Ltd [1978] VR 431, cited
Dey v Victorian Railways Commissioners (1949) 78 CLR 62, cited
WALDEMAR DUDZINSKI v ANSLEY KELLOW, ROY RICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT AND GRIFFITH UNIVERSITY
Q 110 OF 1999
FRENCH, WHITLAM & LINDGREN JJ
27 AUGUST 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:

FRENCH, WHITLAM & LINDGREN JJ

DATE OF ORDER:

27 AUGUST 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The Applicant is to pay the Respondents’ costs of the application for leave.
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:

FRENCH, WHITLAM & LINDGREN JJ

DATE:

27 AUGUST 1999

PLACE:

BRISBANE

EX TEMPORE REASONS FOR JUDGMENT
French J:

This is an application for leave to appeal against the decision of Drummond J in which he struck out substantial parts of a statement of claim in proceedings brought by the applicant against Griffith University and certain of its staff. His Honour also ordered a permanent stay of the proceedings.
The applicant instituted proceedings on the 27 October 1997. According to his amended statement of claim, which is the subject of this application for leave, he holds an Associate Diploma in Economics and Organisation of Industrial Enterprises from Poland and a Bachelor of Applied Science in Geology from the Queensland University of Technology. He alleges that in 1993 he enrolled in the program for the degree of Master of Engineering Science in Waste Management at Griffith University and, in 1997, enrolled in the combined Degree Program for the Bachelor of Laws and Bachelor of Science in Environmental Sciences.
The applicant’s amended statement of claim, which had been amended on a number of occasions, was divided up into eleven parts setting out various classes of cause of action against the University and members of its staff who were named as respondents. In outline, the parts and their…

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 1264
Case: [1999] FCA 1264
Decision Date: 27 AUGUST 1999

CaseChat Overview and Summary

The applicants, Dudzinski, sought leave to appeal against a decision that dismissed their claim against the respondents, Kellow. The applicants alleged the respondents were involved in a conspiracy to defame them and sought damages. The Federal Court of Australia was tasked with deciding whether the applicants should be granted leave to appeal against the dismissal of their claim.

The legal issues before the court were whether the applicants had established a prima facie case of defamation, conspiracy, and economic loss. The court was also required to determine if the applicants had demonstrated that the primary judge erred in law or failed to take into account a significant matter when dismissing their claim. The applicants contended that the primary judge had failed to properly consider the evidence and had erred in law.

The court found that the applicants had not established a prima facie case of defamation, conspiracy, or economic loss. The court held that the applicants had failed to demonstrate that the primary judge had erred in law or failed to take into account a significant matter. The court noted that the applicants had not provided sufficient evidence to support their claims, and the primary judge had properly considered the evidence before dismissing the claim. As a result, the court dismissed the application for leave to appeal and ordered the applicants to pay the respondents' costs of the application.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The Applicant is to pay the Respondents’ costs of the application for leave.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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:	FRENCH, WHITLAM & LINDGREN JJ
DATE OF ORDER:	27 AUGUST 1999
WHERE MADE:	BRISBANE

JUDGE:	FRENCH, WHITLAM & LINDGREN JJ
DATE:	27 AUGUST 1999
PLACE:	BRISBANE