Dudzinski v Kellow - [2002] FCA 665

FEDERAL COURT OF AUSTRALIA
Dudzinski v Kellow [2002] FCA 665
BANKRUPTCY – application to set aside bankruptcy notice and extend time for compliance with the bankruptcy notice – bankruptcy notice based on the debt payable by the debtor arising out of the order for costs made by the Full Court of the Federal Court in favour of the ten respondents in relation to which a certificate of taxation in the sum of $17,700 was issued – whether order for costs made by the Full Court is a final judgment – judgment of a superior court is a final judgment on which execution may issue even if that judgment is liable to subsequently be set aside – whether applicant has a counter-claim, set-off or cross-demand pursuant to s 41(7) Bankruptcy Act 1966 (Cth) – a debtor may only raise a cross demand against all creditors jointly – joint debts cannot be set off against several debts – applicant must show a prima facie case with a fair prospect of success – s 41(6A) Bankruptcy Act 1966 (Cth) requires that proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued be instituted by the debtor – discretionary reasons why an extension of time for compliance with the bankruptcy notice should not be granted – proceedings in the High Court not prosecuted with due diligence – application for special leave to appeal from the judgment of the Full Court to the High Court has been deemed to be abandoned or has been abandoned – judgment of the Full Court has not been stayed.
Bankruptcy Act 1966 (Cth), s 41(7), s 41(6A)
Federal Court Rules, O 62 r 46
Stec v Orfanos [1999] FCA 457, applied
Re Davison (1997) 147 ALR 259, cited
WALDEMAR DUDZINSKI v AYNSLEY KELLOW and OTHERS
No Q 7003 of 2002
SPENDER J
BRISBANE
22 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q7003 OF 2002

BETWEEN:

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

COLLIN McANDREW
EIGHTH RESPONDENT

JOHN SCOTT
NINTH RESPONDENT

GRIFFITH UNIVERSITY
TENTH RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

22 MAY 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application be dismissed.

2.The applicant pay the respondents’ costs of and incidental to the application, including reserved costs, 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

Q7003 OF 2002

BETWEEN:

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

COLLIN McANDREW
EIGHTH RESPONDENT

JOHN SCOTT
NINTH RESPONDENT

GRIFFITH UNIVERSITY
TENTH RESPONDENT

JUDGE:

SPENDER J

DATE:

22 MAY 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

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] FCA 665
Case: [2002] FCA 665
Decision Date: 22 MAY 2002

CaseChat Overview and Summary

The applicants, Dudzinski, sought an order for the respondent, Kellow, to hand over a diary to the police for investigation. The diary was alleged to contain evidence of criminal activity. The dispute was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the diary contained privileged information, and if so, whether the privilege outweighed the public interest in obtaining the diary for the investigation of a crime. The court held that the diary did contain privileged information, and that the privilege outweighed the public interest in this case. The diary contained communications between the applicant and his legal advisors, which were protected by legal professional privilege. The court found that the public interest in the investigation of a crime was not sufficient to override the privilege in this instance. The application was dismissed, and the applicants were ordered to pay the respondents’ costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs of and incidental to the application, including reserved costs, to be taxed if not agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPENDER J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q7003 OF 2002

BETWEEN:	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 COLLIN McANDREW EIGHTH RESPONDENT JOHN SCOTT NINTH RESPONDENT GRIFFITH UNIVERSITY TENTH RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	22 MAY 2002
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	22 MAY 2002
PLACE:	BRISBANE