Dudzinski, Waldemar v Secretary, Department of Social Security
[1997] FCA 392
•20 May 1997
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No QG 150 of 1996
BETWEEN:
WALDEMAR DUDZINSKI
Applicant
AND:
SECRETARY, DEPARTMENT OF SOCIAL
SECURITY AND SECRETARY, DEPARTMENT
OF EMPLOYMENT, EDUCATION AND TRAINING
Respondents
JUDGE MAKING ORDER: Cooper J
WHERE MADE: Brisbane
DATE OF ORDER: 20 May 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
In respect of the notice of motion filed 11 April 1997 :-
The notice of motion be adjourned to be heard at the same time as the respondents’ notice of motion filed 25 March 1997, on the date appointed for the substantive hearing of the applicant’s application for an order of review.
The costs of this notice of motion be reserved to the substantive hearing of the applicant’s application for an order of review.
In respect of the notice of motion filed 7 May 1997 :-
The relief sought in paragraphs 1, 3, 4 and 5 of the notice of motion be dismissed.
In respect of paragraph 2 of the notice of motion the court directs that the applicant file all documentary material including any further affidavit material upon which he intends to rely on the hearing of the applicant’s application for an order to review by 4.00 pm 5 June 1997.
The applicant pay the respondents’ costs of and incidental to the notice of motion filed 7 May 1997 to be taxed if not agreed.
The court directs that the applicant file and serve the draft of any proposed amendment to his substantive application by 4.00 pm 5 June 1997.
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
GENERAL DIVISION
No QG 150 of 1996
BETWEEN:
WALDEMAR DUDZINSKI
Applicant
AND:
SECRETARY, DEPARTMENT OF SOCIAL
SECURITY AND SECRETARY, DEPARTMENT
OF EMPLOYMENT, EDUCATION AND TRAINING
Respondents
CORAM: Cooper J
PLACE: Brisbane
DATE: 20 May 1997
REASONS FOR JUDGMENT
The court has before it two notices of motion filed by the applicant. The first was filed on 11 April 1997 seeking that a notice of motion filed by the respondents on 25 March 1997 be dismissed. The notice of motion filed by the respondents on that date was filed pursuant to a direction of Spender J that if the respondents wished to seek relief under s 10(2) of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) that they should do so by a notice of motion returnable for hearing on the date appointed for the substantive hearing of the applicant’s application for an order of review.
The respondents, desiring to take the point, filed a notice of motion. The notice of motion filed by Mr Dudzinski on 11 April 1997 is in response to it. It seems to me having looked at the material that the proper time to determine the issue as to the applicability of s 10(2) of the ADJR Act is on the hearing of the substantive application which was clearly the view of Spender J at the time he gave the direction.
Accordingly, on that notice of motion, I adjourn the notice of motion to be heard at the same time as the respondents’ notice of motion filed on 25 March 1997 on the date appointed for the substantive hearing of the applicant’s application for an order of review, and I reserve the question of costs on that notice of motion to that hearing.
The second notice of motion was filed on 7 May 1997. In paragraph 1 it seeks an order under the original jurisdiction of this court to set aside the orders of Drummond J of 23 April 1997 whereby his Honour refused an application for leave to appeal against the interlocutory judgment of Spender J given on 11 March 1997 refusing leave to the applicant to deliver interrogatories to the respondents, and against the order of Spender J of 11 March 1997 that the applicant pay the respondents’ costs in relation to that notice of motion.
It should be said that I have no jurisdiction to sit on appeal from the order made by Drummond J refusing leave to appeal. So much is clear from the decision of the Full Court of this court in Thomas Borthwick and Sons (Pacific Holdings) Limited and Others v Trade Practices Commission (1988) 79 ALR 171. The applicant then seeks to proceed under Order 35 of the Federal Court Rules on the basis that the order was made by mistake or because the order is an interlocutory order.
The effect of setting aside the order of Drummond J would be to reinstate the application for leave to appeal to a Full Court of this court from the orders of Spender J. In Thomas Borthwick & Sons the full Court concluded (at 180) that where leave to appeal is refused by a single judge, it is an exercise of the appellate jurisdiction of the court and is final. Thus, in my view, it is not correct to seek to characterise the order of Drummond J as an interlocutory order falling within the terms of Order 35 rule 7 and thereby as an order amenable to be set aside by another judge of the court.
Further, although the applicant says that he was unaware that there was available to him a right to apply to the Full Court of the Federal Court as opposed to a single judge of the Federal Court for leave, that lack of awareness does not in my view amount to a mistake as to the form or effect of an order of such a nature that the court should intervene. Mr Dudzinski referred me to a decision of Jessell MR in Mullins v Howell (1879) 11 Ch D 763 at 766. That case involved a consent order made by parties wherein one of the parties was acting under a mistake as to the exact terms and operations of the order agreed to. The Master of the Rolls held that the court had power to vary the order made because the terms of the order flowed directly from the mistake. That is not this case. The present case involves a substantive application having been made, argued and determined on the merits, and there is no basis in fact or in law which would justify me in setting it aside in order that the applicant may once more argue for leave to appeal. Substantially, what the applicant seeks to do is to exercise a right of appeal from Drummond J to me which I have said is simply not available.
In paragraph 2 of the notice of motion, the applicant seeks that time limits for the filing of additional materials be extended in consequence of Drummond J vacating certain direction orders made by Spender J. I will deal with paragraph 2 in my orders.
Paragraph 3 of the notice of motion was inserted by the applicant out of an abundance of caution lest he had given some undertaking to the court in relation to the proceedings before Drummond J. I am satisfied that no undertaking binding upon the appellant was given during those hearings and no relief is necessary under paragraph 3.
Paragraph 4 of the notice of motion seeks a stay in relation to the costs orders of Spender J and Drummond J. Under the rules of court, there being no special order made, these costs cannot be taxed and enforced until the conclusion of the proceedings. In consequence, there is no need for an operative stay.
Paragraph 5 of the notice of motion seeks to raise causes of action additional to the application for judicial review based upon the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and at common law.
The applicant has not placed before me any material in the form of a draft statement of claim which would demonstrate a cause of action sufficient to persuade me to allow a joinder of actions at common law to these proceedings. For the purpose of this application, I am prepared to assume that in an appropriate case it is possible to join related matters such that different causes of action giving rise to relief under different statutes or at common law may be joined.
However, the applicant advised me, in response to a question, that the purpose of paragraph 5 was to enable the delivery of interrogatories. On that basis, it appears that paragraph 5 is designed to overcome the problem which the applicant is confronted with: namely, that he has applied to deliver interrogatories in relation to the substantive application before the court, that application has been dismissed by Spender J, leave to appeal has been refused by Drummond J, and paragraph 5 seeks in those circumstances to circumvent that outcome. In my view, that is not a proper use of the power to join other causes of actions, and for that reason I am not prepared to grant joinder in terms of paragraph 5.
The respondents have sought that I give directions to bring this matter to an early trial. As the matter presently stands, Drummond J discharged previous directions orders and listed the matter back before himself for directions on 6 June 1997. It would appear that his Honour had some good purpose in bringing the matter back before himself on that date, and what I am minded to do is to give directions aimed to bringing the matter to an early trial date but not vacating the listing before his Honour on 6 June.
I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.
Date: 20 May 1997
Associate
Applicant in Person: Mr Dudzinski
Counsel for the Respondents: P E Hack
Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 20 May 1997
Place of Hearing: Brisbane
Date of Judgment: 20 May 1997
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