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

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…

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 & Ors

Details

AGLC: Dudzinski v Kellow & Ors [2004] HCATrans 376
Case: [2004] HCATrans 376
Decision Date

CaseChat Overview and Summary

The applicant, Dudzinski, sought to appeal against a decision of the Supreme Court of New South Wales. The respondents were Kellow and others. The precise nature of the dispute that led to the Supreme Court's decision is not detailed in the provided text, but the application before Heydon J concerned an application for leave to appeal.

The central legal issue before Heydon J was whether the applicant had demonstrated sufficient grounds to be granted leave to appeal against the Supreme Court's prior determination. This involved an assessment of whether there was a reasonably arguable case of error in the original decision.

Heydon J considered the applicant's arguments and the relevant legal principles governing applications for leave to appeal. His Honour concluded that the applicant had not established a sufficient basis for leave to appeal, finding that the grounds raised were not reasonably arguable. Consequently, the application for leave to appeal was dismissed.

Orders