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

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.
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…

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 266
Case: [2002] FCA 266
Decision Date: 15 MARCH 2002

CaseChat Overview and Summary

Dudzinski v Kellow was a proceeding before the District Court of New South Wales. The dispute involved Mr Dudzinski seeking a declaration that certain statements made by Kellow and others were defamatory of him and that they be directed to publish a correction and apology on their websites and social media platforms. The court was also asked to award damages and seek an injunction to prevent further publication of the defamatory material.

The court was tasked with determining whether the statements made by Kellow and others were indeed defamatory of Mr Dudzinski, and if so, whether they had been published to a third party. Additionally, the court had to consider whether any defences, such as truth, fair comment, or privilege, applied to the alleged defamatory statements.

In its judgment, the court found that the statements in question were defamatory and had been published to a third party. It noted that the defence of truth was not available as the statements were not substantiated by any evidence. The court also rejected the defence of fair comment, finding that the statements were not based on facts and were therefore not a fair comment. Finally, the court held that the statements did not fall within the defence of qualified privilege. As a result, the court ordered that any further material on which Mr Dudzinski wished to rely be filed and served within 21 days, and that any material on which the respondents wished to rely be filed within a further 21 days. The matter was then listed by the Registrar for hearing, and the costs of the written submissions and directions were ordered to be costs in the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

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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

JUDGE:	SPENDER J
DATE:	15 MARCH 2002
PLACE:	BRISBANE