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Dudzinski v Spender

Dudzinski v Spender

Case [2008] QSC 50 12 March 2008

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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…

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 50
Case: [2008] QSC 50
Decision Date: 12 March 2008

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

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.

Citations

AGLC Citation

Dudzinski v Spender [2008] QSC 50

Most Recent Citation

Spain v Dipompo Jacs Constructions Pty Ltd [2009] QCA 323

Cases citing this decision · 2 of 2 shown

Coeur De Lion Investments Pty Ltd v Lewis
[2019] QDC 90 Para 1

…White J said in Dudzinski v Spender[9] that section 13 of the Crimes Act enshrines the common law position. [9][2008] QSC 50 at [37].…
Spain v Dipompo Jacs Constructions Pty Ltd
[2009] QCA 323 Para 1

…Dr Wong on 16 occasions but did not receive any further treatment or investigation of his chronic lower back pain.[6] [2]See [8] of these reasons. [3][2008] QSC 50 at [7]. [4][2008] QSC 50 at [6]. [5][2008] QSC 50 at [7]. [6][2008] QSC 50 at [8].…

View all 2 citing cases →

Cases cited in this decision · 9 of 9 shown

R v Meredith
[2025] NSWDC 246 Para 1

…Although not referred to by Mr Dudzinski, s 13 of the Crimes Act enshrines the common law position that every person has an interest and is permitted to put the law in motion in criminal matters. The use of the expression “information” in s 686 merely reflects the historical distinction between the …
Sydney Catchment Authority v Bailey
[2006] NSWLEC 616 Para 1

…9 of the Judiciary Act , Gargan v Woodgate; Gargan v Commonwealth Bank [2004] NSWSC 177 per Greg James J; Sydney Catchment Authority v Bailey [2006] NSWLEC 616.…
Fingleton v The Queen
[2005] HCA 34 Para 1

…In Fingleton v R [2005] HCA 34; 216 ALR 474, Gleeson CJ, discussing the rationale for the immunity from criminal responsibility of a judicial officer exercising that officer’s judicial functions enshrined legislatively in Queensland in s 30 of the Code , observed that an allegation of judicial misconduct by a di…
Gilbert v Volkers
[2004] QSC 436 Para 1

…The nature of the discretion inherent in s 686 was discussed in Gilbert v Volkers [2004] QSC 436; [2005] 1 Qd R 359 by Holmes J (as her Honour then was). Her Honour considered and applied with modifications the factors identified in Gouldhan v Sharrett [1966] WAR 129. Wolff CJ, with whom the other members of the…
Gargan v Woodgate
[2004] NSWSC 177 Para 1

…th (No 2) (1985) 1 NSWLR 680 at 689. But s 13 does not prevail over s 69 of the Judiciary Act , Gargan v Woodgate; Gargan v Commonwealth Bank [2004] NSWSC 177 per Greg James J; Sydney Catchment Authority v Bailey [2006] NSWLEC 616.…
Dudzinski v Centrelink
[2003] FCA 1500 Para 1

…isputes: Kellow v Dudzinski [2003] FCA 103 (Q7022 of 2002): the Griffith University sequestration proceedings (exhibit 1); and Dudzinski v Centrelink [2003] FCA 1500 (Q15 of 2003): the Centrelink proceedings (exhibit 2). The reasons in these decisions, together with Mr Dudzinski’s affidavits, set out the history o…
Kellow v Dudzinski
[2003] FCA 103 Para 1

…Mr Dudzinski is a party to two principal disputes: Kellow v Dudzinski [2003] FCA 103 (Q7022 of 2002): the Griffith University sequestration proceedings (exhibit 1); and Dudzinski v Centrelink [2003] FCA 1500 (Q15 of 2003): the Centrelink proceedings (exhibit 2). The reasons in these decisions, together with Mr Du…
R v Hughes
[2001] WASCA 300

…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 v Bailey [2006] NSWLE…
R v Loewenthal; ex parte Blacklock
[1974] HCA 36 Para 1

…th legislation may not commence a prosecution against another for a Commonwealth offence. See also observations in R v Loewenthal; ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 and R v Lynch QWN (1904) 17. The above analysis, therefore, disposes of Mr Dudzinski’s application but in case he concludes that…

Legislation cited in this decision · 6

Crimes Act 1914 (Cth)
13 2 mentions (from Para 1)
Judiciary Act 1903 (Cth)
39B 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
440 2 mentions
Acts Interpretation Act 1954 (Qld)
36 1 mention
Bankruptcy Act 1966 (Cth)
1 mention (from Para 1)
Social Security Act 1991 (Cth)
1 mention (from Para 1)

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…