Dudzinski v Secretary Department of Family & Community Services

[2000] FCA 1741

FEDERAL COURT OF AUSTRALIA

Dudzinski v Secretary Department of Family & Community Services [2000] FCA 1741

PLEADINGS - application for leave to appeal decision refusing amendments - leave refused in circumstances where proposed additions would unduly widen original relief sought in terms already rejected by the Court prior to the commencement of the proceedings - analysis of the application as an abuse of process

Trade Practices Act 1974
Crimes Act 1914
Public Service Act 1922

DUDZINSKI and DUDZINSKI v DELEGATE TO THE SECRETARY OF THE DEPARTMENT OF FAMILY & COMMUNITY SERVICES and SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Q 84 OF 2000

KIEFEL J
BRISBANE
7 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 84 OF 2000

BETWEEN:

ANNA DUDZINSKI
FIRST APPLICANT

WALDEMAR DUDZINSKI
SECOND APPLICANT

AND:

S M ROSSINGTON, DELEGATE TO THE SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
FIRST RESPONDENT

DAVID ROSALKY, SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

JUDGE:

KIEFEL J

DATE OF ORDER:

7 NOVEMBER 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application for leave to appeal is dismissed.

2.        The applicants pay the respondents’ costs of the application to be taxed.

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 84 OF 2000

BETWEEN:

ANNA DUDZINSKI
FIRST APPLICANT

WALDEMAR DUDZINSKI
SECOND APPLICANT

AND:

S M ROSSINGTON, DELEGATE TO THE SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
FIRST RESPONDENT

DAVID ROSALKY, SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

JUDGE:	KIEFEL J
DATE:	7 NOVEMBER 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT
EX TEMPORE

1. In an application brought by Mr and Mrs Dudzinski in August of this year, they sought relief with respect to a stoppage by Centrelink of a Newstart Allowance, which it was said Mrs Dudzinski was entitled to, from 8 June 2000, and also Mr Dudzinski’s Partner Allowance, which was stopped from about 21 June 2000.  The second-mentioned allowance depends on the Newstart Allowance.  By the time the matter came on before Drummond J, on 6 October 2000, Mrs Dudzinski had been granted the allowance, on 8 September 2000, and she had been paid arrears.  The Newstart Allowance and the Partner Allowance both continued to be paid.

2. During the hearing his Honour asked Mr Dudzinski what was left with the matter, it appearing that Mr and Mrs Dudzinski were seeking a different order, one for prohibition and which seemed to amount to some form of permanent entitlement to the Newstart Allowance, constraining the conduct of any future relationship between Centrelink and Mrs Dudzinski.  At that point Mr Dudzinski identified that the prohibition order he sought to add to the proceedings, by way of amendment, was one to prevent Mrs Dudzinski being sent to “so-called” Intensive Assistance Services and that they wanted to apply for a prohibition order on the grounds of Centrelink’s fraud and dishonest conduct.  To send her to those services would be harassment.

3. In relation to this aspect of the matter, the original claim for prohibition was from withholding Social Security payments wrongfully.  What was here proposed was some general permanent restraint in relation to future dealings with Mrs Dudzinski.  Putting that matter aside, and putting to one side for the moment the subject of a further wider amendment, the only matter left in the application filed was whether or not the Court would entertain an order, as sought in the application, for the identification of the two officers said to have been involved in the withholding.  That is the subject of an application to strike out the balance of the application which will be heard by his Honour next week.

4. His Honour’s expressed concern during the hearing, as it appears from the transcript, that the proceedings were being used inappropriately - by seeking to amend a claim which was originally for specific prerogative relief into much wider relief and, in particular, to bring in claims made under various legislation such as the Trade Practices Act 1974, Crimes Act 1914 and Public Service Act 1922.  It was obviously more apparent to his Honour than it was to me, at least initially, that what Mr Dudzinski had in mind was bringing into these proceedings all of the claims which had been set out in a statement of claim which appears in annexure WD1 to his affidavit of 5 October 2000.  The Registry had not accepted that lengthy set of claims, in December 1999 and under the direction of a Judge.  They had also been refused on several earlier occasions.

5. His Honour said that if Mr and Mrs Dudzinski wished to bring other proceedings they could formulate them and bring them separately, but he refused to grant leave to amend to bring in a whole host of unrelated applications and, in particular, without formulating them.  His Honour considered that to amend the proceedings in this way would amount to an abuse of process.  His Honour no doubt had in mind the history of the wider claims in the December 1999 document.

6. When the matter came on before me today Mr Dudzinski confirmed that he sought to add in both the claims in the December 1999 document and to seek orders in the nature of prohibition or declaratory relief in the general terms which I have outlined.  Mr Dudzinski also raised the question as to whether his Honour had denied him natural justice during the hearing of that application.  It seems to me that whilst Mr Dudzinski was, at certain points, restricted in his submissions, the context of these proceedings and others undertaken by Mr Dudzinski were no doubt known to his Honour and his Honour had a familiarity with the history of the matter and an understanding of the issues presently and previously sought to be raised.  Mr Dudzinski says that the situation had changed since the application in these proceedings was first filed and that is a sufficient basis for amendment.

7. If they have changed in a way in which would give him a new right of action or claim, it is not apparent to me.  It is also not apparent that there is any cause of action sought to be added arising just from those facts.  What Mr Dudzinski seeks to do is to add in the series of wide claims sought to be filed in December 1999.  They not only pre-date the claim in these proceedings; they have been considered by at least one if not more Judges and they were directed not to be accepted.  A reference to the document itself gives a fairly clear indication of why this was so.

8. Mr Dudzinski then says that he did not need his Honour’s leave to amend the application or statement of claim in these proceedings and relies on O 13 r 3.  It is pointed out in answer to this that that rule is inappropriate to an application under Order 54A and that O 13 r 3 is confined to pleadings.  It also seems to me, in any event, that what is sought here, either with respect to the wider general claims I have just referred to or the matter of prohibition to which I will refer again, are not truly amendments, but the joinder of separate and distinct claims, separate from the very limited facts set out in these proceedings.  Further it would seem to me that, given the history of the matter relating to the December 1999 statement of claim, it would be an abuse of process to add them in to these proceedings.

9. So far as concerns the further claim for prohibition, it is difficult to see that even if there were genuine complaints in the past, how an order for prohibition could properly be formulated to regulate future relations.  As I have said, the exact nature of what was sought to be amended is not entirely clear.  The only thing that is clear is that Mr Dudzinski wishes to continue these proceedings in some form and, indeed, in a much wider form.  Mr Dudzinski adds today that he and his wife also seek declaratory orders.  This would seem to me to take the matter no further and there seems to be no other basis for them.

10. There does not appear to me to be any error demonstrated in his Honour’s consideration of this matter.  As I have mentioned to Mr Belcher, representing the respondents in these proceedings, I have not dealt with the submissions on the basis that time for bringing this application had passed.  Rather, it appears the application for leave to appeal the decision of Drummond J of 6 October 2000 has no merit.  The application for leave to appeal is dismissed.

11. I will order that the applicants pay the respondents’ costs of the application to be taxed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             7 November 2000

For the Applicants:	In Person
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	7 November 2000
Date of Judgment:	7 November 2000