Dudzinski v The Commonwealth of Australia

[2009] QSC 19

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2009] QSC 19

FRYBERG J

No 9303 of 2005

ANNA DUDZINSKI AND WALDEMAR DUDZINSKI	Plaintiffs
and
THE COMMONWEALTH OF AUSTRALIA AND OTHERS	Defendants

BRISBANE

..DATE 12/02/2009

ORDER

HIS HONOUR:  I have before me two applications made in pending proceedings.  In the proceedings the plaintiff, Mrs Anna Dudzinski, sues the Commonwealth of Australia and a number of its agencies and employees for a variety of forms of relief.  In broad terms, she seeks $10 million as general damages, specific damages and exemplary damages said to have been suffered due to defamation, conspiracy, negligence, fraud, misrepresentation, undue influence and breach of statutory duty.  That appears from paragraph 117 of the statement of claim.

Today, she comes before the Court seeking summary judgment in respect of part of her claim, a sum of some $31,000, and also seeking an injunction, "...to stop the first defendant", that is the Commonwealth, "from taking money unlawfully from the plaintiff's student assistance benefit Austudy under the Austudy scheme and under the Student Assistance Act 1973 of circa $50 per fortnight since or about 18 July 2008 and to pay the plaintiff back the money already taken of circa $650."

The plaintiff is unrepresented. However, when she announced her appearance she requested that I allow her husband to represent her. I was not prepared to grant special leave under section 209 of the Supreme Court Act 1995 but did allow her husband to speak on her behalf throughout the proceedings, my thinking being that this was a form of McKenzie friend application.

Both claims are supported by affidavits made by Mr Dudzinski so that the evidence as well as the advocacy came from him.  I do not think that Mrs Dudzinski was in any way at a greater disadvantage than she would have been had she represented herself.  Indeed, Mr Dudzinski has considerable experience.  He has formal legal qualifications obtained during studies of jurisprudence in Poland and also as a student at Griffith University in Brisbane.  He has about, as he says in his own affidavit, 14 years of experience as a self-representing litigant before Australian Courts of all levels of civil jurisdiction.

The material relied on in support of the applications consists of four affidavits of Mr Dudzinski and the statement of claim and reply.  There is also, of course, an affidavit of service.

The $31,108, to give the precise amount of it, represents, it seems, benefits not received by the plaintiff under the Newstart allowance scheme between December 2000 and July 2008.

The material in support, however, consists largely of assertions about the conduct of people involved in the plaintiffs' campaign to obtain assistance from the Government.

It deals at length with a number of the people involved.  It contains assertions about the documents which have been filed on behalf of the defence and also contains material which really ought to be made only by way of submission.  However, no objection was taken save for one passage where it was alleged an employee of the Commonwealth produced a false affidavit containing fabricated evidence.  In the end, the objection was not pressed.

What is missing from all of this is any substantial evidence identifying precisely why it is that the plaintiff was entitled to this allowance.

There is another problem with the matter and that is that the claim for the $31,180 has already been before the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.  It is because the plaintiff feels that she has not achieved justice before those Tribunals that the present proceedings are, it seems, now brought.  Certainly there is considerable criticism of the proceedings that were brought in those other Tribunals.

The important point that arises out of all this, however, is not the precise history of the matter in other jurisdictions.  It is simply that the material put before me, the affidavits put before me, do not, in my judgment, disclose facts which would warrant either the granting of summary judgment or the issuing of an injunction of the type sought.

In saying that, I ignore the apparent overlap between the two applications.  That is of no great consequence.  The difficulty with the application is that under the rules of the Court to obtain summary judgment it is necessary for the plaintiff to show that the defendant has no real prospect of successfully defending all or part of the plaintiff's claim and that there is no need for a trial of the claim or a part of the claim.  Those are the two conditions prescribed by rule 292.

The application is brought against all defendants but the evidence really fails to establish that the relief sought is properly available to the plaintiffs.  In my judgment, the matters raised by the plaintiff have not been shown to be matters which ought not to go to trial and because the requirements of rule 292 are not met there cannot be summary judgment.

The same is true of the application for the injunction.  The evidence put before me does not disclose that there is a sufficiently arguable case that an interlocutory injunction should be granted.

If the plaintiff is right in what she says then any damage which she suffers will consist simply of the failure to recover money which she says should already have been paid.  That is not the proper subject of a claim for injunction and if it is properly payable it may be ordered to be paid in the ordinary course of a trial.

It follows that no occasion arises for the issue of an injunction and in consequence that both applications should be dismissed.

...

HIS HONOUR:  The applications are dismissed with costs to be assessed on the indemnity basis.

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