Dudzinski v Kellow

[2002] FCA 266

FEDERAL COURT OF AUSTRALIA

Dudzinski v Kellow [2002] FCA 266

WALDEMAR DUDZINSKI v AYNSLEY KELLOW and OTHERS

No Q 7003 of 2002

SPENDER J
BRISBANE
15 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7003 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:

15 MARCH 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Any further material on which Mr Dudzinski wishes to rely be filed and served within 21 days of today.

2.Any material on which the respondents wish to rely be filed within a further 21 days.

3.The matter then be listed by the Registrar for hearing. 

4.The costs of and incidental to the written submissions ordered by Deputy District Registrar Baldwin and any costs of the directions in 1, 2 and 3 above be costs in the proceedings.

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 7003 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:	15 MARCH 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. A bankruptcy notice QN 306 of 2001 was issued against the applicant (Mr Dudzinski) by the Official Receiver on 19 December 2001 on the application of a partner of Minter Ellison.  The bankruptcy notice claimed that the 10 respondents listed above were owed by Mr Dudzinski a debt of $17,700.00.  The bankruptcy notice was a 21-day notice, and the debt claimed by the 10 applicants is based on an order of a Full Court of the Federal Court, French, Whitlam and Lindgren JJ of 27 August 1999, whereby the Court ordered that Mr Dudzinski’s application for leave to appeal the judgment of Drummond J was dismissed, and ordered Mr Dudzinski to pay the respondents’ costs of the application for leave.   On 29 February 2000 the taxing officer of the Federal Court issued a certificate of taxation certifying that the taxing officer taxed and allowed the bill of costs of the respondents at $17,700.00.

2. By an application filed 11 February 2002, Mr Dudzinski claimed, amongst other things:

   “A.   DETAILS OF CLAIM

   1.The permanent stay order in action QG168/97 will be lifted 8.4.1999 and the orders of 27.08.1999 will be set aside due to event(s) occurring after these judgments by force of Federal Court Rules, Order 37, Rule 6(1) and Order 35 Rule (7)(2).

   2.To set aside this Bankruptcy Notice on the grounds the Applicant/Debtor have a counter-claim and cros – action in SQQ exciding the sum specified in Bankruptcy Notice and filed the application in March 2000 in the Supreme Court of Queensland against Third, Fourth, Seventh, Tenth, Respondents No 1999/2002 exciding the sum claimed by the Creditor.

   3.The Application for Judicial Review concerning action under Racial Discrimination Act 1975 (Cth) and Sex Discrimination Act 1984 (Cth) being originally Part IX in QG168/97 claim of the Applicant/Debtor and later being entertained by HREOC will be accepted without or with amendments as concerning substantive rights of the Applicant before judgment in this matter will be given.  The applications were lodged on time on about January 2000 and July 2000 but refused.  The Applicant claims $300,000.00 for unlawful discrimination from 3^rd, 4^th, 7^th and 10^th Respondents.

   4.The Applicant seeks orders as in QG168/97 claim a subject to either lifting stay order by Federal Court or certiorari order by High Court or in cross-action pursuant to Order 5 Rule 15 of FCA Rules the Applicant will file.  The applicant seeks stay of proceedings and of the execution of the Order of Full Federal Court pending High Court determination in B97/2001 matter.

   5.Other orders that seem just.

   B.CLAIM FOR INTERLOCUTORY RELIEF

   1.The Court will extend compliance with the Notice of Bankruptcy Q/N/306/2001 on the grounds that:

   1(1)The Applicant instituted in High Court No B97/2001 action to set aside in part the judgement QG168/1997 of 8.4.1999 and judgment in Q110/1999 of 27.8.1999.

   1(2)The Applicant/Debtor have also a cross-action exciding the sum specified in Bankruptcy Notice and he filed the application in Supreme Court of Queensland in about March 2000 year against Third, Fourth, Seventh, Tenth, Respondents No 1999/2002 exciding the sum claimed by the Creditor.  The claim in that action No 1999/2002 will be amended.”

   [Without intending in any way to denigrate Mr Dudzinski, I have reproduced that part of his application as it was filed.]

3. On 20 February 2002, Deputy District Registrar Baldwin invited the parties to make submissions on whether the application to set aside the bankruptcy notice should be transferred to the Federal Magistrates Court or remain in this Court.  Mr Dudzinski made submissions, not all of which are easy to understand, opposing the transfer to the Federal Magistrates Court.  The respondents, in their written submissions indicated that they were content for this application to be heard in either the Federal Court or the Federal Magistrates Court.  Ordinarily, there would be no reason why this matter ought not be dealt with by the Federal Magistrates Court.  However, Mr Dudzinski has “muddied the waters” in his application by seeking to agitate matters going far beyond an application to set aside the bankruptcy notice.

4. In the interests of an efficient disposal of all the matters which Mr Dudzinski has thrown up, I think it preferable that the “application”, such as it is, remain in the Federal Court and be dealt with as soon as it is possible to do so.

5. Having considered the written submissions by the parties filed and served pursuant to the order of Deputy District Registrar Baldwin of 20 February 2002, I direct that any further material on which Mr Dudzinski wishes to rely be filed and served within 21 days of today, and that any material on which the respondents wish to rely be filed within a further 21 days, and the matter then be listed by the Registrar for hearing. 

6. I direct that the costs of and incidental to the written submissions ordered by Deputy District Registrar Baldwin and the costs of the above directions be costs in the proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             15 March 2002

The Applicant appeared on his own behalf
Solicitor for the Respondent:	Minter Ellison Lawyers
Date of Judgment:	15 March 2002