Dudzinski, Waldemar v Sectary, Department of Social Security
[1997] FCA 824
•6 August 1997
IN THE FEDERAL COURT OF AUSTRALIA )
) QUEENSLAND DISTRICT REGISTRY ) QD 55 of 1997 ) GENERAL DIVISION )
BETWEEN: WALDEMAR DUDZINSKI
ApplicantAND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY; and DEPARTMENT OF EMPLOYMENT EDUCATION AND TRAINING
Respondents
JUDGE(S): O’LOUGHLIN, KIEFEL, FINN JJ PLACE: ADELAIDE DATED: 6 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS:
That the application for leave to appeal against the order of this Court made on 20 May 1997 is dismissed with costs.
That the application for leave to appeal against the order of this Court made on 6 June 1997 is dismissed with costs.
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 ) QD 55 of 1997 ) GENERAL DIVISION )
BETWEEN: WALDEMAR DUDZINSKI
Applicant
AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY; and DEPARTMENT OF EMPLOYMENT, EDUCATION & TRAINING
Respondent
JUDGE(S): O’LOUGHLIN, KIEFEL, FINN JJ PLACE: ADELAIDE DATED: 6 AUGUST 1997
EX TEMPORE REASONS FOR JUDGMENT
O’LOUGHLIN J: The appellant in these proceedings seeks the intervention of this Court with respect to the dispute that exists between him and the Department of Social Security and the Department of Employment, Education and Training. In order to understand how the dispute has arisen and in order to explain the limited role of this Court in today’s proceedings, it is necessary to give a brief outline of the appellant’s history and background. He was born in Poland on 2 April 1952 and migrated to Australia at the age of 32, arriving here in 1984. He acquired citizenship two years later in 1986.
The appellant acquired a tertiary education in Poland but his qualifications were not recognised in this country. As a result, he was forced to take up employment in the building industry as a labourer. Within a few years of his arrival in Australia, however, the appellant commenced tertiary studies at the Queensland University of Technology and ultimately completed his degree in Applied Science in 1990. Thereafter, he later commenced studies for a Masters Degree in Engineering Science in waste management.
Unfortunately, however, the appellant has not been successful in obtaining employment in a field in which he can utilise his academic achievements. That prompted the appellant to seek unemployment relief from the various Commonwealth agencies. In 1995 the appellant made an application for a New Start allowance. It is his eligibility in 1995 for this allowance which is the basis of his present dispute with the respondents. On 26 May 1995 the Commonwealth Employment Service made a decision to cancel the appellant’s New Start allowance, allegedly on the grounds that he had failed to enter into a case management activity agreement.
The appellant disputed this allegation and on 5 June 1995 lodged a written request seeking a review of the decision. The issues that were in dispute between the appellant and the Commonwealth Employment Service included questions such as whether the appellant unreasonably failed to agree to the terms of the proposed agreement as advanced by his case manager. Was there unreasonable delay on the part of the appellant? Was he lacking in good faith in his negotiations with his case manager? However, behind those issues there is a more fundamental question and that is whether a person in the position of the appellant with tertiary qualifications can reasonably be required by Commonwealth agencies to undertake work which the appellant considers menial or at least beneath the qualifications that he or she has obtained.
The appellant’s discipline is earth sciences. As I have stated, he holds a Bachelor’s Degree and has commenced his Masters studies. Was it appropriate that he be offered work and training as a swimming pool attendant? Was he within his rights in rejecting such an offer? The Department considered that there was an obligation on the part of the appellant to undertake such work. That particular decision was affirmed first by the Social Security Appeals Tribunal on 25 November 1995 and then by the Administrative Appeals Tribunal on 15 July 1996.
On 8 October 1996 the appellant filed an application for an extension of time within which to file and serve a notice of appeal against the decision of the Administrative Appeals Tribunal. The document composed by the appellant referred to Order 53 r 7 and form 55B, thereby indicating that the intended proceedings were to be instituted under the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). However, within the body of the document there were references to certain sections of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). It was not therefore clear whether the appellant was intending to proceed under both Acts or only one and if so, which one.
There were also references in this document to claims for relief under section 39B of the Judiciary Act 1903 (Cth), (“the Judiciary Act”) the Racial Discrimination Act 1975 (Cth), the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”) and the Public Services Act 1922 (Cth), suggesting that the appellant may be intending to advance some claims for relief under one or other or all of those statutes. Six weeks later, on 25 November 1996, the appellant filed a document entitled Application for an Order of Review. Underneath that title there appeared the words and figures "Order 54 and Order 54A." They are the orders in the rules of Court which deal with applications under the ADJR Act and applications for orders under section 39B of the Judiciary Act.
Nevertheless, it is clear from the body of that document that it was still intended to be an application to review the decision of the Administrative Appeals Tribunal. Doubts about the applicant’s intentions were ultimately resolved when he advised the Registry by letter dated 17 December 1996 that he was intending to proceed under the provisions of the ADJR Act. It has been necessary to recite this history of the proceedings to explain the significance of a notice of motion that has been filed in the Court on behalf of the respondent. That notice of motion was filed on 25 March 1997 and sought an order under s 10(2) of the ADJR Act.
A copy of that notice of motion is not in the appeal papers but it is the subsection that empowers the Court in appropriate circumstances to refuse relief for various reasons; one of those reasons being that adequate provision is made by another law under which the appellant is entitled to relief. I assume that in this case the respondents wish to argue that the correct procedure is an application under the AAT Act.
On 11 April 1997 the appellant reacted to the respondents’ notice of motion. He filed a notice of motion seeking an order that the respondents’ notice of motion be dismissed. That notice of motion was heard and determined by a judge of this Court, Cooper J, on 20 May 1997. His Honour came to the conclusion that the appropriate course of conduct was to adjourn both notices of motion; that is, the respondents’ and the appellant’s for hearing at the same time as the substantive hearing of the application for an order of review. There is no application for leave to appeal from that particular order.
I turn now to a second issue that has arisen in these proceedings.
Earlier the appellant had sought leave to administer interrogatories in the substantive proceedings. That application was refused by Spender J on 11 March 1997. On 23 April 1997 another judge of this Court, Drummond J, refused the appellant’s application for leave to appeal against the interlocutory judgment of Spender J. By a notice of motion filed on 7 May 1997 the appellant sought an order setting aside the orders that had been made by Drummond J on 23 April 1997. That notice of motion was also heard by Cooper J on 20 May.
That particular aspect of the application was dismissed by Cooper J and there is no application for leave to appeal against that order of dismissal. But in paragraph 5 of the same notice of motion, that is, the notice of motion filed on 7 May by the appellant, the appellant had also sought an order in the following terms:
“To add to this proceeding jurisdiction vested in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Human Rights and Equal Opportunity Act 1986 and the concepts of common law such as the tort of negligence, the tort of misrepresentation, contract law and tort of defamation.”
Cooper J declined to make the orders sought, stating that the appellant had not placed any material before him in the form of a draft statement of claim which would demonstrate a cause of action sufficient to persuade him to allow a joinder of such actions. During the course of his submissions before this Court today the appellant challenged that particular finding of Cooper J, claiming that there was before the Court the evidence necessary to demonstrate the existence of those causes of action.
The appellant had made available to the members of the Court additional or extraneous material over and above that contained in the Appeal Book. It was quite voluminous, amounting to some 200 pages. The appellant applied to the Court for leave to make reference to that additional material for the purposes of making good his point that there was evidence of a kind sufficient to justify the application for joinder that he had made. The Court permitted Mr Dudzinski to point to various examples of the documents upon which he would seek to rely, but ultimately declined him leave to rely upon the additional material.
There was a further reason why Cooper J refused the application for joinder. His Honour said:
“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 application 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 action, and for that reason I am not prepared to grant joinder in terms of paragraph 5.”
During the course of his submissions today the appellant said that there was some misunderstanding on the part of his Honour. I take that to mean that Mr Dudzinski is disavowing any suggestion that the purpose of paragraph 5 was to circumvent the earlier adverse orders on the subject of interrogatories. For the purposes of coming to a conclusion, I am prepared to put to one side the question whether there was or was not such a misunderstanding. I am content to rely upon the earlier proposition that was stated in his Honour’s reasons, to the effect that there was no - or no sufficient - material placed before the Court to justify the orders sought in paragraph 5 of the notice of motion.
It is not sufficient for a litigant to lodge in Court voluminous papers stating that within those papers there exists a cause of action. The least that a litigant is required to do is to compose in conventional form, a proposed statement of claim, justifying the argument that there is, or that there may be, such a cause of action. The appellant failed to do this. In my opinion the view adopted by his Honour was plainly the correct view. I can see no error in the manner in which his Honour came to his conclusion.
A search through the papers indicates that the appellant believes that he is the victim of discrimination because of his Polish origins. That presumably would be the reason for referring to the Racial Discrimination Act. There is also a reference to an officer of the Department expressing concerns about the appellant’s mental state. That was identified by the appellant in the papers as the basis for an intended defamation action. But I am unable to identify any material that would directly or indirectly touch upon the other foreshadowed causes of action.
The limited excursion that the Court has made into the additional material does not change that view. Even if a joinder of statutory and common law causes of actions with proceedings under the ADJR Act, or the AAT Act, were desirable and permissible, as to which I do not express any opinion, there is no material in the present case sufficient to warrant an examination on this subject. There is no substance in this application for leave to appeal, and it must be dismissed with costs.
On the subject of costs, I think it is timely to draw to the attention of the appellant that it would be within the power of the Court to order, not only that he pay those costs, but that they be taxed and paid by him as a condition of him being permitted to prosecute his substantive action. I do not think it would be fair to a litigant, particularly an unrepresented litigant, to make such an order without first giving a warning, which I now do give: that if unmeritorious applications such as this are subsequently prosecuted by the appellant he would be at grave risk that a Court might adopt the views that I have just expressed. I am content however to say that the application for leave to appeal stands dismissed with costs.
The third and final matter which must be addressed is that there was a further notice of motion that was filed by the appellant on 27 May 1997, in which the appellant sought an order “Adding to this proceeding a jurisdiction vested in part 4 and part 5 of the Trade Practices Act 1974”.
That matter came before Drummond J on 6 June 1997, when his Honour ordered that the application for an extension of time, the substantive appeal, the notice of motion filed on 11 April 1997, (that being the one seeking to set aside the respondents’ notice of motion), and the notice of motion then before Drummond J, seeking to add the reference to the Trade Practices Act, all be heard together on a date to be fixed by the Registrar. His Honour noted in his order that there was an estimated duration of two days for the hearing of those matters.
The appellant now seeks the leave of this Court to appeal against those orders of Drummond J. First, he points to the fact that in late 1996 Kiefel J made an order extending the time, and that therefore it was inappropriate for Drummond J to address that matter on a second occasion. Next, he claims that the application to include relief under the Trade Practices Act, as well as relief under the Equal Employment Opportunity legislation and under common law, should be heard by this Court. Finally, he complains that three days - not two days - should be set aside for the hearing of the substantive application. Regrettably, this application has incurred the parties in a waste of time and a waste of money. The applicant does not have a proper appreciation of the processes of the Court; but, despite raising issues and having them argued out before a single Judge, he remains determined to pursue his causes no matter how mistaken they may be.
Although the appeal papers do not include a copy of the orders made by Kiefel J, it is now common ground that, in fact, an order granting the necessary extension has, in fact, been made. There was, therefore, no need for Drummond J to address this subject. But a simple inquiry at the office of the Registry would have resolved that particular issue.
To suggest that a Full Court should interfere with the decision of a listing Judge about the length of a case is preposterous, the more so when nothing is placed before the Court other than the appellant’s bland statement that it should be three days and not two days.
Finally, the question concerning the introduction of additional causes of actions is primarily a task for a chamber Judge or the trial Judge. The order that Drummond J made was, having regard to the history and the circumstances of this matter, most appropriate. This application for leave must also be dismissed with costs.
KIEFEL J: I agree with the reasons and with the orders proposed by the presiding Judge on each of the applications for leave to appeal. I have only these additional comments to add. By 9 December 1996, directions hearings had been held and directions and orders made with respect to the applications brought by Mr Dudzinski to facilitate the early disposition of the applications he had brought. It is, I consider, most regrettable that, instead of that course being pursued and finality about the essential dispute achieved, a series of largely unnecessary applications have instead been brought.
The result has been, amongst other things, substantial delay in the prospect of an early hearing being reached and, indeed, there must be doubt about that possibility in the balance of this year. Mr Dudzinski’s approach to the litigation now appears to be that, in addition to pursuing a multiplicity of actions seemingly regardless of specific relief which might follow from them (but which might have the possibility of allowing him to interrogate those who have angered him), he will agitate any order where he is unsuccessful.
It seems to me that Mr Dudzinski needs to give careful consideration as to the future course of litigation and to bear in mind the dangers of being too much the litigator to the exclusion of all else. The other danger Mr Dudzinski faces, and upon which I wish to comment, is that also raised by the presiding Judge. That relates to the question of costs. Given that Mr Dudzinski is without legal representation, it might be appropriate for the Court to point out some of the areas of danger for him. The presiding Judge has referred to the prospect of further orders which might be made by this Court. There is, of course, also the prospect that the respondent Department might make application with respect to the orders of costs which it has already got against Mr Dudzinski. So far as the respondent is concerned, if there are further applications of the nature already made to date, Mr Dudzinski may well face the possibility where an application is made by the respondent to have those costs taxed forthwith. That is to say, he might imperil the substantive hearing of his application. It seems to me in the circumstances, it is correct to bring these matters to his attention. As I have said, I am otherwise in respectful agreement with the reasons and the orders proposed by the presiding Judge.
FINN J: I agree with the orders proposed by O’Loughlin J and with the reasons of and comments made by O’Loughlin and Kiefel JJ in both applications for leave to appeal.
O’LOUGHLIN J: The orders of the Court are as follows:
That the application for leave to appeal against the order of this Court made on 20 May 1997 is dismissed with costs;
That the application for leave to appeal against the order of this Court made on 6 June 1997 is dismissed with costs.
I certify that this and the preceding ten pages are a true copy of the Reasons for Judgment herein of the Court
Associate:
Dated: 20 August 1997
Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Mr J A Logan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 August 1997 Date of Judgment: 6 August 1997
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