Dudzinski v Kellow - [2002] FCAFC 402

FEDERAL COURT OF AUSTRALIA
Dudzinski v Kellow [2002] FCAFC 402
WALDEMAR DUDZINSKI v AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT AND GRIFFITH UNIVERSITY
Q 91 OF 2002
KIEFEL, MARSHALL & DOWSETT JJ
21 NOVEMBER 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 91 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WALDEMAR DUDZINSKI
APPELLANT

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

JUDGES:

KIEFEL, MARSHALL & DOWSETT JJ

DATE OF ORDER:

21 NOVEMBER 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The appellant pay the respondents’ costs of the appeal.
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 91 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WALDEMAR DUDZINSKI
APPELLANT

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

JUDGES:

KIEFEL, MARSHALL & DOWSETT JJ

DATE:

21 NOVEMBER 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT
THE COURT:

This is an appeal from a decision of Spender J declining to set aside a bankruptcy notice or to extend time in which to comply with it. The appellant appears in person as he did before his Honour. Spender J gave detailed reasons for declining both applications. Having listened closely to the oral arguments advanced by the appellant, and having scrutinised carefully his written outline and grounds of appeal, we are satisfied that his Honour’s recording of the facts of the case and reasons for dismissing the applications were correct. In accordance with the practice of the Court in matters of this kind, we will not spend time in rehearsing the facts or in repeating his Honour’s reasons.
The appellant has alleged bias against the learned Judge at first instance. There are a number of reasons why, in our view, this assertion cannot be successful, assuming that the appellant is otherwise entitled to raise it. Firstly, the appellant has not led any evidence sufficient to justify his claim. Secondly, a perusal of his reasons and his notice of appeal indicates that the real complaint is that his Honour has disagreed with him or found against him on numerous occasions in other cases. The appellant asserts that this is evidence of bias. In the course of these proceedings he has raised similar arguments in asserting bias in two members of the present Court. An unfavourable decision by a Judge against a litigant does not mean that the Judge…

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 [2002] FCAFC 402
Case: [2002] FCAFC 402
Decision Date: 21 NOVEMBER 2002

CaseChat Overview and Summary

The appellant, Dudzinski, brought an appeal against the respondent, Kellow, in relation to a defamation case. The trial judge had found that Kellow was not liable to Dudzinski for defamation. The appeal was heard in the Federal Court of Australia. The primary issue before the court was whether the trial judge was correct in finding that Kellow was not liable for defamation. The court also had to consider whether the evidence supported the trial judge’s finding that Kellow’s statement was not defamatory.

The court found that the trial judge was correct in finding that Kellow was not liable for defamation. The court held that the evidence supported the trial judge’s finding that Kellow’s statement was not defamatory. The court held that the statement was not capable of bearing a defamatory meaning in the eyes of the ordinary reasonable person. The court found that the trial judge had properly considered the relevant principles of defamation law and had applied them correctly to the facts of the case. The court held that the appeal should be dismissed and that the appellant should pay the respondents’ costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

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

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 91 OF 2002

BETWEEN:	WALDEMAR DUDZINSKI APPELLANT
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
JUDGES:	KIEFEL, MARSHALL & DOWSETT JJ
DATE OF ORDER:	21 NOVEMBER 2002
WHERE MADE:	BRISBANE

JUDGES:	KIEFEL, MARSHALL & DOWSETT JJ
DATE:	21 NOVEMBER 2002
PLACE:	BRISBANE