Dudzinski v. Spender - [2008] QSC 54

SUPREME COURT OF QUEENSLAND

CITATION:

Dudzinski v Spender [2008] QSC 54

PARTIES:

WALDEMAR DUDZINSKI
(applicant)
v
JEFFREY SPENDER
(respondent)

FILE NO/S:

BS 609 of 2008

DIVISION:

Trial Division

PROCEEDING:

Costs judgment

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2008

JUDGE:

White J

ORDER:

No order as to costs

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – COSTS – POWER TO AWARD– where an application for leave to file a private prosecution has been refused – where the Crown was not involved at any stage – whether there is a statutory power to make an award for the costs of the application

The Criminal Code 1899 (Qld), s 660, s 686, s 687, s 694
Criminal Practice Rules 1999 (Qld), r 4, r 34
Criminal Practice Rules 1900 (Qld)
Judicature Act 1867 (Qld), s 1
Rules of the Supreme Court, O 4 r 4, O 91 r 1
Supreme Court Act 1867 (Qld), s 58
Supreme Court Act 1933 (ACT), s 23
Supreme Court of Queensland Act 1991 (Qld), s 118B s 130, s 134
Supreme Court Act 1995 (Qld), s 221
Uniform Civil Procedure Rules 1999 (Qld), Chapter 17A, r 678, r 680, r 689

Byrnes v Barry [2004] ACTCA 24, considered
Knight v FP Special Assets Limited (1992) 174 CLR 178, followed
R v His Honour Judge Kimmins, ex parte Attorney-General [1980] Qd R 524, cited
Re Ansett Australia Holdings Limited [1998] 1 Qd R 116, cited

COUNSEL:

Waldemar Dudzinski appeared on his own behalf
B T Porter for the respondent

SOLICITORS:

Waldemar Dudzinski appeared on his own behalf
Australian Government Solicitor for the respondent

The applicant, Mr Dudzinski, applied for leave to present an information against the respondent, a Judge of the Federal Court of Australia, which I refused on
12 March 2008 for reasons which were published that day. Mr Dudzinski thereupon sought to reopen his application for leave which was refused with reasons given at the time.

Mr Porter, for the Judge, sought an order for costs to be assessed on the indemnity basis against Mr Dudzinski who opposed such an order being made. If made, he sought a stay pending initiating an appeal from my decision and pending the commencement of proceedings against the Commonwealth of Australia in this Court.

The power to award costs must be found in some statutory enactment either explicitly or by necessary implication. An analysis of the history of the statute law relating to costs in England and Australia is to be found in the judgment of French J in Byrnes v Barry [2004] ACTCA 24 at para 52 and following and also in the joint judgment of Mason CJ and Deane J in Knight v FP Special Assets Limited (1992) 174 CLR 178 at 182 and following.

A general power to award costs in Queensland is in s 221 of the Supreme Court Act 1995 which provides:

“The Supreme Court…

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. Spender

Details

AGLC: Dudzinski v Spender [2008] QSC 54
Case: [2008] QSC 54
Decision Date: 18 March 2008

CaseChat Overview and Summary

In the matter of Dudzinski v. Spender, the High Court of Australia was presented with a case concerning the refusal of an application for leave to file a private prosecution. The defendant, Spender, had sought to prosecute the plaintiff, Dudzinski, privately without the involvement of the Crown. The central issue before the Court was whether there existed a statutory power to award costs incurred during the unsuccessful application for leave to prosecute. The case hinged on the interpretation of relevant statutes and the principles governing the awarding of costs in private prosecutions.

The Court examined the statutory framework governing private prosecutions and the general principles of awarding costs in legal proceedings. It was noted that private prosecutions are not public prosecutions and thus do not fall under the usual rules governing costs in criminal cases. The Court considered whether the refusal of the application for leave to prosecute could be analogous to a situation where a plaintiff's claim is dismissed, thereby potentially warranting an award of costs to the successful party. However, the Court found that the statutory provisions did not explicitly provide for such an award in the context of a private prosecution.

The High Court concluded that the statutory power to award costs was not applicable to the circumstances of this case. The refusal of the application for leave did not equate to a dismissal of a substantive claim, and thus did not trigger the usual rules for awarding costs. Consequently, the Court held that no order for costs should be made. The decision underscored the need to distinguish between public and private prosecutions in assessing the applicability of cost-related provisions.

Orders

Orders of the court

No order as to costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dudzinski v Spender [2008] QSC 54
PARTIES:	WALDEMAR DUDZINSKI (applicant) v JEFFREY SPENDER (respondent)
FILE NO/S:	BS 609 of 2008
DIVISION:	Trial Division
PROCEEDING:	Costs judgment
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2008
JUDGE:	White J
ORDER:	No order as to costs
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – COSTS – POWER TO AWARD– where an application for leave to file a private prosecution has been refused – where the Crown was not involved at any stage – whether there is a statutory power to make an award for the costs of the application The Criminal Code 1899 (Qld), s 660, s 686, s 687, s 694 Criminal Practice Rules 1999 (Qld), r 4, r 34 Criminal Practice Rules 1900 (Qld) Judicature Act 1867 (Qld), s 1 Rules of the Supreme Court, O 4 r 4, O 91 r 1 Supreme Court Act 1867 (Qld), s 58 Supreme Court Act 1933 (ACT), s 23 Supreme Court of Queensland Act 1991 (Qld), s 118B s 130, s 134 Supreme Court Act 1995 (Qld), s 221 Uniform Civil Procedure Rules 1999 (Qld), Chapter 17A, r 678, r 680, r 689 Byrnes v Barry [2004] ACTCA 24, considered Knight v FP Special Assets Limited (1992) 174 CLR 178, followed R v His Honour Judge Kimmins, ex parte Attorney-General [1980] Qd R 524, cited Re Ansett Australia Holdings Limited [1998] 1 Qd R 116, cited
COUNSEL:	Waldemar Dudzinski appeared on his own behalf B T Porter for the respondent
SOLICITORS:	Waldemar Dudzinski appeared on his own behalf Australian Government Solicitor for the respondent