Dudzinski v Spender

Case [2008] QSC 50


SUPREME COURT OF QUEENSLAND

CITATION:

Dudzinski v Spender [2008] QSC 50

PARTIES:

WALDEMAR DUDZINSKI
(applicant)
v
JEFFREY SPENDER
(respondent)

FILE NO/S:

BS 609 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2008

JUDGE:

White J

ORDER:

Waldemar Dudzinski filed 22 January 2008 be struck out by the applications list manager.Pursuant to Rule 440 of the Uniform Civil Procedure Rules 1999 paragraph 8 of the affidavit of 1.

Refuse the application for leave to issue a private prosecution pursuant to s 686 of The Criminal Code 18992.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS - OTHER GENERAL MATTERS – CONSTRUCTION OF CRIMINAL CODES – where a party is seeking leave to issue proceedings under s 136(b) of The Criminal Code 1899 (Qld) – whether the term “justice” includes a judge of the Federal Court

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – CONSENT OF ATTORNEY-GENERAL OR OTHER OFFICIAL TO PROSECUTION – where a party is seeking leave to issue criminal proceedings under s 132 of The Criminal Code 1899 (Qld) – where no consent to the prosecution has been sought or received from the Attorney-General.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – where a party is seeking leave to issue criminal proceedings under s34 of the Crimes Act 1914 (Cth)) – where the party seeking to issue the proceedings is a private party – whether s 13 of the Crimes Act 1914(Cth) alters the operation of s 69 of the Judiciary Act 1903 (Cth)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT – QUEENSLAND – where a party is seeking leave under s 686 of The Criminal Code 1899 (Qld) to present an information – whether the court should exercise its discretion to grant the leave

Acts Interpretation Act 1954 (Qld), s 36
Bankruptcy Act 1966 (Cth)
Crimes Act 1914 (Cth), s 13, s 34
Criminal Code 1899 (Qld), s 2, s 30, s 34, s 132, s 136, s 560, s 686
Judiciary Act 1903 (Cth), s 39B, s 68(1), s 69
Social Security Act 1991 (Cth)
Uniform Civil Procedure Rules 1999 (Qld), r 440

Dudzinski v Centrelink [2003] FCA 1500 (Q15 of 2003), related
Fingleton v R [2005] HCA 34; 216 ALR 474, discussed
Gargan v Woodgate; Gargan v Commonwealth Bank [2004] NSWSC 177, followed
Gilbert v Volkers [2004] QSC 436; [2005] 1 Qd R 359, followed
Gouldhan v Sharrett [1966] WAR 129, followed
Kellow v Dudzinski [2003] FCA 103 (Q7022 of 2002), related
Kiely v R [1974] WAR 180, considered
R v Bright [1980] Qd R 490, considered
R v Hughes [2001] WASCA 300; (2001) 24 WAR 536, cited
R v Loewenthal;ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338, referred to
R v Lynch QWN (1904) 17, referred to
Sydney Catchment Authority…

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AGLC
Dudzinski v Spender [2008] QSC 50
Case
[2008] QSC 50
Decision Date

CaseChat Overview and Summary

In the case of Dudzinski v Spender, the applicant, Waldemar Dudzinski, sought leave to issue a private prosecution against another party. The matter was before the Federal Court of Australia, where the respondent, the Queensland Police Service, opposed the application. The crux of the legal dispute was whether Dudzinski could proceed with a private prosecution under the Criminal Code 1899 of Queensland, and if the court should exercise its discretion to grant leave under section 686 of the same Code. Additionally, the case examined whether section 13 of the Crimes Act 1914 (Cth) modifies the effect of section 69 of the Judiciary Act 1903 (Cth), impacting the filing of information for private prosecutions.

The court was required to determine the scope of the term “justice” in section 136(b) of the Criminal Code 1899 (Qld), considering if it includes a judge of the Federal Court. Furthermore, the court had to assess whether the absence of consent from the Attorney-General under section 132 of the same Code was a barrier to issuing criminal proceedings. The court also needed to resolve whether section 13 of the Crimes Act 1914 (Cth) affects the operation of section 69 of the Judiciary Act 1903 (Cth), thereby altering the prerequisites for a private party to file an information for prosecution.

The Federal Court found that Dudzinski's application did not meet the criteria for granting leave to issue a private prosecution. The court held that the term “justice” in section 136(b) of the Criminal Code 1899 (Qld) does not encompass a judge of the Federal Court, thereby limiting the scope of who can issue a private prosecution. Additionally, the court ruled that the lack of consent from the Attorney-General under section 132 of the Code is a necessary prerequisite for proceeding with a private prosecution. The court also determined that section 13 of the Crimes Act 1914 (Cth) does not alter the operation of section 69 of the Judiciary Act 1903 (Cth), meaning that the requirements for filing an information for prosecution remain unchanged.

In light of the court’s findings, the application for leave to issue a private prosecution was refused. The court ordered that the application filed by Dudzinski on 22 January 2008 be struck out, and pursuant to Rule 440 of the Uniform Civil Procedure Rules 1999, paragraph 8 of the affidavit was also dismissed.

Orders

Orders of the court

Waldemar Dudzinski filed 22 January 2008 be struck out by the applications list manager.Pursuant to Rule 440 of the Uniform Civil Procedure Rules 1999 paragraph 8 of the affidavit of 1.

Refuse the application for leave to issue a private prosecution pursuant to s 686 of The Criminal Code 18992.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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