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Dudzinski v Kellow

Dudzinski v Kellow

Case [1999] FCA 390 8 April 1999

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FEDERAL COURT OF AUSTRALIA
Dudzinski v Kellow [1999] FCA 390
PRACTICE AND PROCEDURE - pleading - striking out statement of claim - Federal Court Rules O 20 r 2 - requirements for pleading negligence of academic staff in connection with application of University policy for subject exemption and in failing a student, fraudulent misstatement, defamation, assault, injurious falsehood - ss 52, 53, 51AA the Trade Practices Act 1974 (Cth).
Trade Practices Act 1974 (Cth), ss 51AA, 52, 53
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Court Rules, O 20 r 2
Griffith University Act 1971 (Qld)
Defamation Act 1889 (Qld)
General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 cited
Hill v Van Erp (1997) 188 CLR 159 cited
Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 cited
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 cited
The Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 cited
Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 cited
Abbott v National Coursing Association of South Australia [1941] SASR 140 cited
Mann v Board of Health of the Australian Capital Territory (1996) 67 FCR 383 cited
Little v Law Institute of Victoria (No 3) [1990] VR 257 cited
Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251 considered
WALDEMAR DUDZINSKI v AYNSLEY KELLOW, ROY DICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT & GRIFFITH UNIVERSITY
QG 168 OF 1997
DRUMMOND J
8 APRIL 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 168 OF 1997

BETWEEN:

WALDEMAR DUDZINSKI
Applicant

AND:

AYNSLEY KELLOW, ROY DICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT & GRIFFITH UNIVERSITY
Respondents

JUDGE:

DRUMMOND J

DATE OF ORDER:

8 APRIL 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Parts I to VII and IX to XI of the applicant’s amended statement of claim, save only for that section of Part I as comprises the claim in negligence against the respondents Stock and Hogarth, be struck out.
2.The further prosecution of this action be permanently stayed.

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

QG 168 OF 1997

BETWEEN:

WALDEMAR DUDZINSKI
Applicant

AND:

AYNSLEY KELLOW, ROY DICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT & GRIFFITH UNIVERSITY
Respondents

JUDGE:

DRUMMOND J

DATE:

8 APRIL 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The respondents apply to strike out the proceedings pursuant to O 20 r 2 the Federal Court Rules. They contend that the pleading discloses no reasonable causes of action and, given that it represents the applicant’s fourth attempt to plead his case, the entire action should be struck out.
A respondent who seeks to terminate an action summarily has a heavy burden: see General…

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 390
Case: [1999] FCA 390
Decision Date: 8 APRIL 1999

CaseChat Overview and Summary

Dudzinski v Kellow is a case before the court, where the applicant is pursuing claims against various respondents. The primary dispute revolves around allegations of negligence, conspiracy, and defamation. The respondents include Kellow, Stock, and Hogarth, among others. The applicant has amended their statement of claim, adding various claims against the respondents. However, the court must now determine the validity of these claims.

The primary legal issues before the court include the admissibility of the claims outlined in the amended statement of claim and whether the action should be permanently stayed. The court must consider whether the claims against the respondents are valid and if they meet the necessary legal standards. Additionally, the court must examine whether the applicant’s claims have merit and if the action should be allowed to proceed.

In its decision, the court found that the majority of the claims were not valid and did not meet the necessary legal standards. The court determined that Parts I to VII and IX to XI of the applicant’s amended statement of claim, excluding the negligence claim against Stock and Hogarth, were struck out. Furthermore, the court ruled that the further prosecution of this action be permanently stayed. The reasoning behind this decision was based on the court's assessment that the claims lacked sufficient evidence and did not meet the necessary legal criteria. As a result, the court has permanently stayed the action and struck out the majority of the claims.

Orders

Orders of the court

1. Parts I to VII and IX to XI of the applicant’s amended statement of claim, save only for that section of Part I as comprises the claim in negligence against the respondents Stock and Hogarth, be struck out.

2. The further prosecution of this action be permanently stayed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Dudzinski v Kellow [1999] FCA 390

Most Recent Citation

Dudzinski v Kellow [2000] FCA 740

Cases citing this decision · 3 of 3 shown

Arman v Nationwide News Pty Limited
[2017] NSWDC 151 Para 3

…vide information or to raise issues requiring a reply, in a non-judicial context ( Chapman v Lord Ellesmere (Jockey Club inquiry); Dudzinski v Kellow [1999] FCA 390; Dudzinski v Kellow [1999] FCA 1264 (university conciliation process); Friend v Civil Aviation Authority [1998] IRLR 253 (aviation inquiry)) or by si…
Transport Workers' Union v Bentley
[2001] FCA 671 Para 25

…In Dudinski v Kellow and Ors [1999] FCA 390, Drummond J adopted a similar approach to that taken by Beaumont J in Korn . His Honour emphasised the importance of ensuring that, wherever possible, relatively small claims be litigated in the lower courts in order to save costs.…
Dudzinski v Kellow
[2000] FCA 740 Para 10

…d proceedings in the Federal Court of Australia on 27 October 1997. Drummond J gave judgment in those proceedings on 8 April 1999: Dudzinski v Kellow [1999] FCA 390 . His Honour struck out substantial parts of the amended statement of claim brought by Mr Dudzinski against Griffith University and certain of its st…

View all 3 citing cases →

Cases cited in this decision · 13 of 13 shown

Hill v Van Erp
[1997] HCA 9 Para 9

…oss as a consequence of the defendant’s negligence. Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; Hill v Van Erp (1997) 188 CLR 159 at 175.…
Mann v Board of Health (ACT)
[1996] FCA 492 Para 20

…o show that he may be able to make out his allegation of malice. He is obliged to do that: Mann v Board of Health of the Australian Capital Territory (1996) 67 FCR 383 at 392. There is no suggestion by the applicant that Chu’s comments, of which he complains, were more extensive or were published more widely than th…
Baltic Shipping Co v Dillon
[1993] HCA 4 Para 16

…ething for mental distress, ie, something it is not suggested has amounted to a recognisable psychiatric illness. Cf Baltic Shipping Company v Dillon (1993) 176 CLR 344 at 359 - 360, McGregor on Damages , 16 th ed, para 90 and Law of Torts , 2 nd ed, Balkin & Davis at 243 - 244. In the absence, however, of any submis…
Wardley Australia Ltd v Western Australia
[1992] HCA 55 Para 13

…respondents, within the meaning of that expression in s 82, as explained in cases such as Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, which he says contravened s 52. He says in his pleading he knew all along that the reason given to him for refusing his transfer request was unsustainab…
Sutherland Shire Council v Heyman
[1985] HCA 41 Para 10

…he exercise of a power which the repository of the power has no obligation to exercise. However, as Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424, the authority relied on by the respondents, shows, at 459 - 461, the repository of a discretionary power may, by its own conduct, place itself in such a p…
Commercial Bank of Australia Ltd v Amadio
[1983] HCA 14 Para 29

…51AA and 82 the Trade Practices Act , some of the elements of which are discussed in cases such as The Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447. Further, the material from the University’s staff, put before the Court by the applicant without comment, demonstrates the manifest want of merit in…
Sungravure Pty Ltd v Middle East Airlines Airliban SAL
[1975] HCA 6 Para 1

…person unless the matter published and said to be defamatory is a statement about that person. Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 21 and McDonald v The North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 at 64. As Mason J pointed out in Sungravure at 23, not every statement (e…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 2

…pondent who seeks to terminate an action summarily has a heavy burden: see General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 at 129 - 130.…
Hall-Gibbs Mercantile Agency Ltd v Dun
[1910] HCA 66 Para 7

…erning the plaintiff’s character, reputation or conduct, which are the concern of the defamation laws. The Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 93 and 102 and The Law of Torts , 2 nd ed, Balkin & Davis, p 677. Statements said by the applicant to be “disparaging [to] the Applicant’s reputation…
Caltex Oil (Australia) Pty Ltd v Dredge "Willemstad"
[1976] HCA 65 Para 9

…will be likely to suffer economic loss as a consequence of the defendant’s negligence. Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; Hill v Van Erp (1997) 188 CLR 159 at 175.…
[1891] 1 QB 524
[1891] 1 QB 524 Para 3

…he same organisation is a sufficient publication for the purposes of the tort of defamation: s 5(2) the Defamation Act and Pullman v Walter Hill & Co [1891] 1 QB 524. But so far as Holman is concerned, the applicant does not allege she made any communication of the matter complained of to anyone other than to the…
[1966] 2 QB 237
[1966] 2 QB 237 Para 3

…in the Visitor of the University, subject only to the supervisory jurisdiction of the appropriate superior court. See Thorne v University of London [1966] 2 QB 237 and as to the width and jurisdiction of the powers of the Visitor, see Bayley-Jones v University of Newcastle (1990) 22 NSWLR 424. However, there is no…
Korn v Paisley Robertson Pty Ltd & Anor
[1995] FCA 762 Para 40

…In Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251, Beaumont J said at 252, in comments of general application: “It is now accepted that, as a matter of proper judicial administration, relatively small claims should not be dealt with by this Court unless there is a federal or other special element to warrant the use of this Court’s ju…

Legislation cited in this decision · 5

Trade Practices Act 1974 (Cth)
51AA, 52, 53 4 mentions (from Para 3)
Defamation Act 1889 (Qld)
1 mention (from Para 22)
Griffith University Act 1971 (Qld)
1 mention (from Para 3)
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 19)
Sex Discrimination Act 1984 (Cth)
1 mention (from Para 19)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 168 OF 1997

BETWEEN:	WALDEMAR DUDZINSKI Applicant
AND:	AYNSLEY KELLOW, ROY DICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT & GRIFFITH UNIVERSITY Respondents

JUDGE:	DRUMMOND J
DATE OF ORDER:	8 APRIL 1999
WHERE MADE:	BRISBANE

JUDGE:	DRUMMOND J
DATE:	8 APRIL 1999
PLACE:	BRISBANE