Dudzinski v Kellow & Ors

[2004] HCATrans 376

[2004] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B108 of 2002

B e t w e e n -

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

COLIN McANDREW

Eighth Respondent

JOHN SCOTT

Ninth Respondent

GRIFFITH UNIVERSITY

Tenth Respondent

Application to set aside a certificate of deemed abandonment

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 6 OCTOBER 2004, AT 4.42 PM

Copyright in the High Court of Australia

MR W. DUDZINSKI appeared in person.

MS S.E. BROWN:   May it please the Court, I appear on behalf of the respondents.  (instructed by Minter Ellison)

HIS HONOUR:   Mr Dudzinski, I have read the three affidavits and I have read your written submissions and I have read the chronology that arrived today.  Those are the materials you want to rely on?

MR DUDZINSKI:   That is correct, your Honour, and also I would like to rely on material which I mentioned in my submission on page 2 of affidavit to which I am going to…..This is affidavit “A” of Waldemar Dudzinski affirmed on 2 July 2003, affidavit “A” of Waldemar Dudzinski affirmed on 22 January 2003.  I have exhibited material, of course, and affidavit “A” of Waldemar Dudzinski…..affirmed on 24 January 2003 and filed 24 January 2003.

HIS HONOUR:   Yes, I have read those.  Is there anything you want to say?

MR DUDZINSKI:   I am seeking today of the setting aside the decision of Registrar Harris who issued certificate against abandoned action matter B108 of 2002.  Ms Harris shortened the time of my statutory rights of about two months because I have six months to comply with statutory requirement of Order 69A of statutory law of High Court.  Because of 20 February 2002 was my sequestration order against me because of that…..action by force of section 60…..and I could do nothing. 

HIS HONOUR:   Mr Dudzinski, just before you go on, you know that you have 20 minutes to put your arguments.

MR DUDZINSKI:   Yes, I do.

HIS HONOUR:   Yes, very well.

MR DUDZINSKI:   So because my statutory rights has been shortened of two months and there was exclusive action of Centrelink and Federal Court which refused to permit me leave to release my……Apparently it caused frustration of lease contract with real estate agent and I had to vacate the premises in Indooroopilly and look for another accommodation.  This was of course not very pleasant for me because I had to make aware for agents with sequestration order was made against myself so of course the consequences were such that a number of agents refused to lease me accommodation. 

One thing is that bankruptcy notice was issued when the respondents did not obtain final order and it was interlocutory order composed of two orders.  One was dismissing my leave to appeal application, Q110 of 1999, and second order of his judgment was that I would pay costs – respondent’s costs because my rights were not determined…..which judgment is not final.  It can be supported by authority of High Court which is Computer Edge Pty Ltd and Another v Apple Computer Inc and Another which can be find in (1984) ALR 767, I believe. Another case which supported that this judgment was not final was Carr v Finance Corporation of Australia ‑ ‑ ‑

HIS HONOUR:   Mr Dudzinski.

MR DUDZINSKI:   Yes.

HIS HONOUR:   You are talking about the Deputy Registrar’s order, are you, of the ‑ ‑ ‑

MR DUDZINSKI:   Yes.

HIS HONOUR:   Yes, there is no doubt that is not final.  You do not have to worry about that.

MR DUDZINSKI:   No, your Honour, I am talking about Ms Brown raised issue for submission but all the Full Federal Court Q110 of 1999 of 27 August 1999 according to Ms Brown’s final order but it is not, it is interlocutory order because my rights have not been determined, my damages were not determined.

HIS HONOUR:   It does not really matter whether it is or it is not.  That is a long way off the relevant period that your application is concerned with.

MR DUDZINSKI:   Your Honour, in my submission, it is relevant because bankruptcy notice cannot be issued if respondents do not have final order. It was miscarriage of justice and never should this bankruptcy notice should be issued. Furthermore, respondents had other options than for judgment. It is supported by Justice Marshall’s decision of 2000 year. This is [2001] FCA 188 and it was published in 182 ALR 195. It was held according to Justice Marshall that applicant creditor at the time of issue of a bankruptcy notice had not taken necessary steps to enable it to enforce the judgment including an application for a warrant of seizure and sale. In the result the bankruptcy notice was invalid. This is similar situation to my case. The respondents did not press for a – did seek to enforce the judgment but they moved to issue bankruptcy notice.

Another matter is that what has been evidence during petition hearing for Vice Chancellor McAndrew, Mr McAndrew stated from witness box that nobody from the respondents…..has paid any money, just only Griffith University was commencing all this litigation, so these people are not…..  But I am now today only seeking orders setting aside the decision of Registrar Harris because, as I said previously, my rights statutory were shortened for about two months because of the operation of section 60 of the Bankruptcy Act 1996. 

That section says that upon pronouncing of sequestration order, all civil action…..such person is disabled in civil courts, cannot prosecute any action except when Trustee will give permission of Federal Court.  Trustee choose on about March 2003 not to continue prosecution of action in High Court B108 of 2002 and also actions which were not . . . by Justice Drummond and which I filed in Supreme Court of Queensland, actions No 1955/00.

Furthermore, decision of Ms Harris was very unreasonable because Mr Wickham, who was also Deputy Registrar, granted me a number of extension when I produce good grounds and I find as an example application for special leave from the Full Court refusing to set aside decision of Justice Spender who make sequestration order against me.  I filed the application originally on 6 October 2003 and on 24 September of this year I filed and served application book, so the process of filing…..completed.  So…..of granting me this additional two months, this extension to complete my work which I started in 2002.

Another matter is that there was quick collusive process of respondents and the lawyers.  A decision of Full Federal Court composed of Justices Kiefel, Dowsett and Marshall in appeal 91, 2002 appeal from decision of Justice Spender.  Of course, I requested the court to disqualify itself on a number of grounds and next day when decision – appeal was dismissed registry officer, Mr Robinson, accepted for filing incompetent petition which did not comply with Form 150 of Federal Court Rules and he accepted for filing incompetent affidavits. 

In these affidavits the respondents’ lawyer tried to state on oath or affirmation that decision in relation to settling for bankruptcy a notice to extend of time to comply with it was finally decided, and apparently it was not, because there is still a venue for me to seek special leave to appeal to High Court from the decision, and also independently I can still seek prerogative relief to cause sequestration order and bankruptcy notice because this Court, according to my knowledge, does not have higher powers than Federal Court in bankruptcy jurisdiction, but High Court has exclusive jurisdiction under the Constitution, under section 75 of Australian Constitution, and they have still venue to seek prerogative relief to quash sequestration orders and bankruptcy notice, despite that sequestration order was made against me.

But before I will do it, I request that your Honour will allow me to prosecute this matter in my B108/2002 application, which is special leave to appeal.  I think that I – in addition, I would like to announce that I was deprived from prosecuting my – prosecuting the decision of Human Rights and Equal Opportunity Commission which was at a certain stage of time entertaining my complaints under unlawful discrimination under both Sex and Racial Discrimination Act and the decision of the Commission is not final.  But on the interrogatory if parties are not satisfied by his statement to seek judicial review, what I was attempting to do, but Justice Kiefel in February 2002 directed Registrar Ramsey of this court and the good Registrar wants not to accept my application for judicial review and that…..happened a year later. 

Registrar Baldwin, Deputy Registrar Baldwin, refused to accept my application for judicial review of Human Rights and Equal Opportunity Commission decision, page 99-9, which was Dudzinski v Griffith University & Others.  So that was corrupt conduct of this court in preventing me from recovering for damages and I requested all courts in bankruptcy jurisdiction to go behind the judgments and all courts refused.

So I am seeking for – your Honour, I just seek leave to enter affidavits which I mention in my submission and those are my submission which was provided to the Court.  I am seeking Judge’s order to extend the time to comply with Order 69A…..documents.

If your Honour will examine precisely the material which was provided to this Court, your Honour will come to conclusion that the respondents so far since 1997 submitted lies to this Court which this Court accepted, the Federal Court accepted the decision.  It actually should be quashed on a number of grounds but I am seeking special leave to appeal.  I think I have finished for the moment.

HIS HONOUR:   Thank you.  Just have a seat, if you would.

MR DUDZINSKI:   Thank you, your Honour.

HIS HONOUR:   This is an application by summons filed on 4 July 2003 for an order extending the time for filing a summary of argument and a draft notice of appeal in proceedings B108 of 2002 to a date two months from the date of the order and for a further order that a decision of a Deputy Registrar on 19 June 2003 refusing an extension of time for the applicant to comply with order 69A rules 6(1), 10(9) and 13(1) of the High Court Rules be set aside.  The extension application is made under Order 60 rule 6.  The applicant relies on his affidavits filed on 22 January 2003, 24 January 2003 and 4 July 2003. 

The matter described above as proceedings B108 of 2002 is an application for special leave to appeal dated 19 December 2002. The orders against which the applicant desires to appeal are orders made on 21 November 2002 by the Full Federal Court, Kiefel, Marshall and Dowsett JJ ([2002] FCAFC 402), dismissing an appeal from orders of Spender J. The orders of Spender J were made on 22 May 2002: [2002] FCA 665.

The orders relate to the dismissal by Spender J of the applicant’s application to set aside a bankruptcy notice or extend the time for compliance with it. That bankruptcy notice was issued on 19 December 2001. It was based on a debt payable by the applicant arising out of a costs order made by the Full Federal Court on 27 August 1999 in proceedings No Q110 of 1999 in respect of which a certificate of taxation for $17,700 had issued on 29 February 2000: see [2002] FCA 665 paragraphs [1] and [2].

It is to be noted incidentally that the applicant filed an application for special leave to appeal against the Full Federal Court’s decision in proceedings Q110 of 1999 but on 27 April 2000 that application was deemed abandoned under the Rules of this Court.  That fact is recorded in the applicant’s chronology relied on today. 

The consequence of the applicant’s having filed his application for special leave to appeal on 19 December 2002 is that Order 69A rule 6(1) of the High Court Rules created an obligation on him to file and serve a summary of argument and a draft notice of appeal on any party who had filed a notice of appearance within 28 days, that is, by 17 January 2003.  The respondents concede that an extension of time was granted until 17 February 2003.  No summary of argument or draft notice of appeal has ever, in fact, been filed.

In consequence, Order 69A rule 13(1) had the result that the application for special leave was deemed to be abandoned six months after it was filed on 19 December 2002, namely on 19 June 2003, unless the Court or a Justice otherwise ordered or directed.  Either a few days before 19 June 2003, or on that day, the applicant sought but was refused an extension of time by a Deputy Registrar.  On the request of the solicitors for the respondent a certificate of deemed abandonment was provided by the Registrar pursuant to Order 69A rule 13.

The first issue is whether the applicant was in breach of the Rules.  The applicant contends that in truth he was not in breach of the Rules by reason of certain matters set out below.  They comprise potential confusions flowing from the making of a sequestration order against him on 20 February 2003, the refusal of a stay of that order on 3 March 2003, the refusal of leave to appeal against it on 24 March 2003 and certain letters from the Trustee in Bankruptcy.  They also include the refusal of the Federal Court to assist him in relation to certain difficulties with Centrelink and with the cutting off his electricity supply for 25 days. 

This contention is invalid.  The matters referred to may excuse non‑compliance with the Rules so as to justify an order for an extension.  They do not in themselves prevent the Rules from operating in their terms.

The next question is whether the order extending time should be made.  The principles stated in the authorities suggest that in this case it is necessary principally to consider the applicant’s explanation for the delay in complying with the Rules so far as the times for filing documents are concerned and for the delay in failing to obtain an order extending those times before 19 June 2003; his prospects of success in relation to the special leave application; and any prejudice to the respondents.

The only material in the applicant’s affidavits and arguments, among much that is irrelevant, capable of being relied on to explain the applicant’s delay, appears in his affidavit of 2 July 2003 filed on 4 July 2003.  That affidavit makes the following points.  From 18 December 2002, he has been under constant stress and tension.  Centrelink had failed to make certain payments to him.  On 14 March 2003, the applicant’s electricity supply was discontinued until 9 April 2003.  There were difficulties in the applicant obtaining premises in which to live.

The applicant complains that the Federal Court did not make orders assisting him in relation to those matters.  Considered by themselves, those events, though they may be regrettable, do not explain the applicant’s failure to comply with the Rules.

The next point which the affidavit makes is that on or about 4 March 2003, the Official Trustee in Bankruptcy by letter said he “will not continue” the special leave application in proceedings B108.  On 23 April 2003, the applicant received a letter from the Trustee dated 17 April 2003 saying that the special leave application did not vest property in him, and that he had made “no official election in relation to its continuation or otherwise”.

The applicant also points to the fact that on 3 March 2003, Spender J refused to stay a sequestration order made on 20 February 2003 against the applicant’s estate pending an appeal to the Full Federal Court against the making of the sequestration order. 

The applicant sought leave to appeal against Justice Spender’s order but Cooper J refused leave on 24 March 2003.  The applicant contends that by reason of that correspondence and the proceedings before Spender J and Cooper J:

At least roughly two months (60 days) were taken off my right embodied in Rule 13(1) of Order 69A of HCA Rules, to comply with sub‑rules 4(1), 4(2), 6(1) or 10(9) within six (6) months after filing of application.

The proposition that the applicant had a right to comply with the relevant Rules within six months is repeated in the next part of the applicant’s submission.  There is no such right.  There is a right to seek extensions of time of which the applicant was well aware, since he applied for three and obtained one.  The period of six months merely marks an interval after which the application is deemed abandoned.  The applicant was in default after 17 February 2003, that is over two months before he received the letter of 17 April 2003, on 23 April 2003.  The events referred to do not explain the failure to comply with the Rules before the extended date of 17 February 2003, nor do they explain the applicant’s failure to take any step with a view to seeking an extension of time after 17 February 2003 but before he got the letter of 4 March 2003 or between 23 April 2003 and the time when he made the application shortly before or on 19 June 2003, which was refused that day.

The applicant does not say in his affidavit that he believed, after receiving the letter of 4 March 2003, that he could not prosecute the special leave application.  He suggests that Cooper J in his judgment of 24 March 2003 did not say that the applicant was free to proceed with the special leave application.  In fact, Cooper J said at paragraph [17] the following:

Mr Dudzinski contends that he has been denied an effective appeal in respect of the bankruptcy proceedings because he cannot further prosecute his application for special leave to appeal to the High Court of Australia in application B108/2002.  That application seeks leave to appeal from a decision of a Full Court of this Court in Dudzinski v Kellow [2002] FCAFC 402, wherein the Full Court refused to set aside the bankruptcy notice upon which the act of bankruptcy relied upon to obtain the sequestration order was based. Mr Dudzinski’s position in relation to his special leave application is no different to his position in relation to his other litigation. If the right to bring an application for special leave to appeal is not property which passed to the trustee and is not otherwise caught by the operation of s 60(2) of the Act, Mr Dudzinski may prosecute the application for special leave. If the application is caught by s 60(2) and the trustee refuses to elect to prosecute the special leave application, then Mr Dudzinski has a right to seek review under s 178 of the Act.

That does not afford any basis for excusing the applicant’s delay in complying with the Rules. 

The thinking which has caused the delay which has in turn brought the applicant into his present difficulties, which delay he has failed to explain, is illustrated by his application today for two more months to file documents which the Rules only allow 28 days for filing.  A more appropriate course would have been to have prepared them before today so as to demonstrate both the applicant’s anxiety to avoid further delay and the strength, if any, which his special leave application possesses.

The applicant’s thinking points strongly against the making of the orders sought, particularly since the applicant’s experience in relation to his earlier special leave application must have made him well aware of the consequences of non‑compliance with the Rules.

It is convenient at this point to interpose consideration of what the applicant has submitted in relation to the Deputy Registrar in relation to the order.  He seeks to have that decision set aside.  The Deputy Registrar did not give reasons for her refusal to extend time on 19 June 2003.  The applicant does not complain of that in isolation.  He says that she “took side of a stronger party”.  If that is an allegation of bias, it is rejected.  He says that her refusal was “due to reasons I consider bad in law and/or equity” as she was familiar with most of the events described in the relevant affidavit.

In view of the applicant’s persistent failure to comply with the Rules over a period of six months, or as he would have it, four months, her refusal is well based.  Even if there were some error, which is not present on examination of the material, her decision was a discretionary one and if this Court were to reconsider the matter for itself, it would arrive at the same conclusion.  The applicant compared the Deputy Registrar’s refusal with the making of other favourable orders by another Deputy Registrar.  That latter fact is irrelevant.

The next issue concerns the prospects of success on special leave.  Any court which heard the special leave application would be unlikely to grant it.  It relates to a relatively small sum of money.  That sum relates to a costs order.  The applicant has not pointed to any error of law warranting the grant of special leave or any evidence of a substantial miscarriage of justice.

The next relevant issue concerns any prejudice to the respondents. 

There has been much delay in relation to this matter and any further delay is in itself a form of prejudice to the respondents. 

Another form of prejudice arises in relation to any costs orders obtained by the respondents in future in relation to costs incurred by them.  A sequestration order has been made by the Federal Court and upheld by the Full Federal Court.  That is subject to an application for special leave to appeal but whether that sequestration order stands or not, enforcing costs orders against the applicant is likely to be either futile or very difficult. 

Finally, the fact that in this relevant six‑month period the applicant did nothing but file a special leave application, did not make an application for an extension of time until on or just before 19 June despite his prior awareness of Order 69A, and has sought a two‑months extension just to comply with Order 69A rule 6, suggests that even if the orders sought were made, the orders are not likely in future to be complied with diligently, resulting in further applications for extension and, hence, further delay and further prejudice. 

I dismiss the application with costs.  I certify that this was a matter proper for the attendance of counsel in Chambers.

The Court will now adjourn.

AT 5.14 PM THE MATTER WAS CONCLUDED