Dudzinski v Secretary, Department of Social Security & Anor B46/1997 [2000] HCATrans 384 (22 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B46 of 1997

B e t w e e n -

WALDEMAR DUDZINSKI

Applicant

and

SECRETARY, DEPARTMENT OF SOCIAL SECURITY

First Respondent

SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION AND TRAINING

Second Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 11.51 AM

Copyright in the High Court of Australia

MR W. DUDZINSKI appeared in person.

MR J.A. LOGAN, SC: May it please the Court, I appear for the respondents. (instructed by the Australian Government Solicitor.

KIRBY J: Yes, Mr Dudzinski. You are going to make this application in 20 minutes. You see to have a lot of papers there. You do not have time for a lot of papers. You only have 20 minutes.

MR DUDZINSKI: I understand.

KIRBY J: Just come to the middle, if you would, because then I can see you and the microphones work better. Just take a glass of water if you need to and the 20 minutes will begin as soon as you make your first words. The Court has read the documents and we have read the decisions of the court below, so that we know generally what the matter is about. Now, why do you say this is a matter of importance that attracts the attention of the highest Court in Australia?

MR DUDZINSKI: Your Honour, if I could answer the question. I would like to make an application to file supplementary application book to my application. I made this application to Registrar Harris under the practice direction No 3 of 19 June 2000 because this matter does contain statutory material and extensive material to which I do intend to refer from time to time during my submission. I did prepare four volumes for each member of the High Court. I serve already this matter already on the respondents on 19 June 2000 and I also have a copy for myself.

This is material which has already been filed in High Court in the form of affidavit on 2 March 1998, 11 May 1998 and 26 May 1998. So High Court is in the possession of this material since at least two years and also the respondents. I formally put this material into my application book in order to make to the Court and the respondent and myself the convenience and practical use of this material. This matter is very important and I put a big effort to bring this material to quick attention during making of my submission to the Court and also to the respondent and myself.

So before I have started to make my submission I making application to this Court to give me leave to file this material and give me leave to use this material from time to time during my submission. I will be trying to be quick as soon as I can, because I will start to proceed, if your Honour will give me response to my application. Can I have leave to file this material and refer during the hearing? I sought this leave from Ms Harris under practice direction No 3 under the head of any material the party is going to rely during submission.

This is written practice direction No 3 that a party can bring at least 24 hours before the hearing any material, textbook article, party is going to rely on and I rely on this practice direction. I have also mandamus application to the Honorary Justice Callinan approximately 10 months ago and I was seeking leave to include this material in application book. Justice Callinan refused the application and for what reason I had not other choice - I did not consider appeal from the decision of Justice Callinan as I was not aware that such options were available to me and for other reason I prepared this material in supplemental appeal book and I was directed by the Registrar Rogers and Registrar Rischbieth for the part from High Court that I can put this material into volumes, supplemental special application book, what I did. Now I am just seeking leave of the Court to let me file this material and refer from time to time during my submission.

KIRBY J: Well, we have the decision of the court below, your submissions and the submissions of the respondent and it is on that basis that you have to try to persuade us, in only a very short time, that there is a matter of significance. If, in fact, you can persuade us, then you will have a full appeal and at that stage the Court will have a much wider ambit of material, provided it was before the courts below. So I think you should concentrate in the short time that you have upon the reasons that you say are sufficient to lift your case up into this Court.

On the face of things, it is simply a decision by Justice Cooper of a procedural character which courts of appeal, such as the Full Court of the Federal Court, but more especially this Court, will very, very rarely interfere with because such decision are being made in every court in Australia every hour of the day, hundreds and hundreds of them, and appellate courts just could not cope if they interfered too often in such cases. So that is what is running against you and you have to somehow try to get over that problem.

MR DUDZINSKI: Your Honour, the point is that I have to refer from time to time to statutory material which is in my supplementary appeal book and I did ask Registrar Harris to let me do it two days ago.

KIRBY J: Yes, but here you come to the Court with great boxes of material and it is a very simple question. You applied to Justice Cooper to introduce what he thought were side issues into an application for judicial review. He declined and instead of going on and fighting your case for judicial review where you may or may not have a point, you have gone up to the Federal Court and now you have come to us and you would be entitled, if you have some sort of a claim under those statutes, the Equal Opportunity Act and the Racial Discrimination Act 1914 , to pursue them separately, but instead you have got sidetracked into this issue.

MR DUDZINSKI: Actually that cannot happen because time limit has passed and my case is special and there is simply not what respondent put in their submission to High Court, but it is not issue about - I am just going to change my glasses, your Honour. I would like to refer your Honour to page 81 of application for special leave to appeal book. There is chapter entitled "Part II - Factual Issues in Contention". I am not seeking to - if I would like to make attention of your Honours to lines between 20 and 30. This is just factual issues in contention from the point of view of respondents. This point which are addressed by respondent is minor point, very minor point. It is not about decision made on 26 May 1995 concerning my Newstart allowance. The matter is much broader. It is about denial of access to training and consequential action to prevent me from entering competitive labour market under Part IV of Trade Practices Act between the Commonwealth Employment Service and contracted case manager.

I was refused access to such training in the breach of agreement which I sign on 30 June 1994 between myself and Commonwealth Employment Service. The Commonwealth Employment Service breached an agreement on statutory point from the point under section 601. I do not remember proper paragraph because I have statutory material in my supplementary appeal book to which I requested leave to appeal to refer from time to time. For me it is now remember to - difficult to remember precisely which paragraph, but it was definitely section 601.

I was refused access to professional training run under labour market program by Commonwealth Employment Service and therefore I raised issues in application to Justice Cooper to act on my Judicial Review application actions, causes of action under common law like contract, negligence, deceit, defamation, and I requested - and Equal Employment Opportunity legislation because actually I made application to Human Rights Commission in late 1995 and the application was refused. Now, Justice Kiefel, which initially heard my application in the second half - - -

CALLINAN J: Mr Dudzinski, his Honour Justice Kirby told you that you have to demonstrate that there is something very exceptional, very special, in order to get special leave. All you are doing is reciting a whole lot of past events. Now, what is your point? What is so special about your case that this Court should give special leave?

MR DUDZINSKI: Yes. I will just start to say. My case is special from two points of view. First of all, under Trade Practices Act my matter is a special federal matter because I am making claim under Part IV of Trade Practices Act. This is special federal matter. Another fact is the Judicial Review matter is also special federal matter and also the fact that I did refuse to sign an agreement is in public interest because it is in breach of human rights and I handed to registry of High Court to Ms Harris some number of documents, including international agreements, which I hope your Honours to have in their possession.

KIRBY J: Well, I realise this is very difficult for you because you are not legally represented and I am sure that in Poland and most countries in Europe the legal system is different to this country. So I make full allowance for that and for the fact that you have, as a person not born with the English language, some problems, though not great problems, in expressing yourself, but you really have to understand that we cannot do a very large number of cases and that is why we have the special leave procedure and from the point of view of just looking at your case, it would have been better for you to have got on with your Judicial Review case rather than getting diverted into these other issues.

The two special points that you have suggested are not special points. First of all, the Federal Court only deals with federal cases. It is only dealing with federal law. So that that is not enough. Secondly, yes, so far as human rights are concerned, they are only relevant in so far as they are reflected in our legal system of Australia and many cases involve human rights in that respect. So that those two special points are not really special points from the point of view of getting you special leave.

MR DUDZINSKI: My response to your Honour speech is that this Court has direct original jurisdiction under international agreement under the Constitution of Australia, section 75, if I do remember properly. For that reason I am raising the point that my matter is under original jurisdiction of the Court - - -

KIRBY J: No. No, you have sought to invoke the appellate jurisdiction of the Court.

MR DUDZINSKI: Yes.

KIRBY J: You have sought special leave to appeal from a Federal Court, the Full Court of the Federal Court of Australia.

MR DUDZINSKI: Yes, that is correct, your Honour, but according to section 51 of Judiciary Act this Court has wide powers to give relief to all claims associated to matters brought before it. Actually in relation to this material which I am just submitting to this Court today, I already made mandamus orders against Justice Drummond, Justice Cooper, and Full Federal Court from which I am seeking special leave to appeal two days ago. So under the Constitution I am seeking prerogative orders to quash the decision of - of orders I am seeking special leave to appeal in addition.

KIRBY J: That is not the matter that is before us. All we have before us is an application for special leave to appeal from the Full Court. We have to keep very clearly in our mind the difference between the original jurisdiction and the appellate jurisdiction of the Court. You are seeking to invoke the appellate jurisdiction. That is all we have before us today. So there is no point in talking about the original jurisdiction of the Court. I realise this may be difficult for you to follow, but that is the position, you can take it from me.

MR DUDZINSKI: Also the history of granting special leave to appeal also refers not only to question of law under section 35 of Judiciary Act but also to factual situation and there were examples in the past when this - the High Court granted special leave where facts aspect were put before the Court enclosing - in the case of Hyde v Government Office New South Wales. In 1991 it was reported in Legal Reporter SL 5, if I am correct. Special leave I am seeking on the basis that if leave will not be granted severe injustice can happen because my claims will be started by it. I cannot bring any action under common law and Trade Practices Act in relation to the matter separately because limit under Trade Practices is three years of time and under common law six years. The matter which now is before the Court started six years ago and I simply will not be able to seek relief if special leave to appeal will not be granted and this is special ground why I am seeking special leave to appeal for the matter is that Federal Court - - -

KIRBY J: But that cannot be a special ground because then if ever a person gets out of time with a case that they can simply say, "Well, the Federal Court can tack a case which is otherwise out of time onto another case which is already before that court." That would be an easy way by which people could get around the statute of limitations, which are very important protections to human rights.

MR DUDZINSKI: The problem is that Federal Court does not accept my application since half an year and my wife is harassed by the Department of respondent which now changed the name and reorganised itself and I believe that matters which I brought before Federal Court and before High Court caused dissolution of Commonwealth Employment Service and now these people are harassing my wife and I brought four application to Federal Court to obtain relief on 24 December 1999 and in the early days of year 2000 to seek relief under Trade Practices Act and under Crimes Act.

These people are falsifying documents of my wife and sending her to senseless activities and so they even cut our unemployment allowance and we even did not have money to come to this Court. So they are acting in collusion conspiracy and matter is special and on this grant I brought mandamus application, certiori and prohibition two days ago to High Court and also a number of other application of mandamus against the respondents, Dr Rozarki, Secretary of the Department of Family Services. That Department actually has been reorganised and changed name from previous Department of Social Security to that Department, which is administering activities of Commonwealth agency, Centrelink.

So the matter is constitutional already and I filed application for removal of this matter to High Court in 1997 on the ground of international conventions in breaches of which the respondents are and as I submitting to the Court the powers of this Court has original jurisdiction under the Trade Practices Act 1975 under section 86 of the Trade Practices Act and this Court can grant all reliefs I am seeking simultaneously onto the section 31 of Judiciary Act and shorten period of proceedings, separate causes of action.

So I submitting once again that if special leave will not be granted the respondents will falsify documents of my wife. They lost two times now before the Social Security Appeal Tribunal. They took unlawfully $800 from my wife. They admitted recently when I did appear before Administrative Appeal Tribunal and they made proposition to come into some sort of agreements in order to settle matter and - - -

CALLINAN J: You are wasting your time, Mr Dudzinski, telling us all these matters. You have to demonstrate that the case is special. You have got a limited amount of time and what you are talking about does not go to that at all.

MR DUDZINSKI: The Court should consider the following question. If person qualified tertiary like myself should go under the head of Social Security legal definition of technical term suitable employment should go and clean toilets and swimming pools and if secretary is simply not negligent saying that it is satisfying needs of persons like myself. Recently my wife is subject to harassment and they are trying to engage her into senseless activities, coming to the so-called Job Network members with papers in the presence.

My wife actually has honours degree and she is qualified librarian. She completed her education in Australia at tertiary level starting from degree. So if I just could, but I already have - if I can have leave to refer your Honour to page 1038 of - - -

KIRBY J: I am sorry, Mr Dudzinski, your time has expired, but we have had your written submissions and we have read the application books so that I think we understand what issues are involved. Thank you very much for your assistance.

The Court does not need your assistance, Mr Logan.

This application comes from a decision of the Full Court of the Federal Court of Australia. That court refused to intervene in an order made by Justice Cooper, a judge of that Court. He refused leave, as sought by the applicant, to join to his existing judicial review proceedings in that Court what were said to be causes of action under the Racial Discrimination Act (Cth), the Sex Discrimination Act 1984 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The application was thus for a procedural order. It was declined by Justice Cooper.

Appellate courts will only intervene in such orders for clearly demonstrated error of fact or law. See Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated [1981] HCA 39; (1981) 148 CLR 170 at 177. No such error is shown by the decision, either of the Full Court or of Justice Cooper. Accordingly, the application for special leave is refused.

MR LOGAN: I am instructed to seek costs in respect of the application.

KIRBY J: Is there any reason why we ought not to make the usual order, ordering you to pay the costs of the respondent?

MR DUDZINSKI: The costs should not be ordered, your Honour, because I am seeking mandamus.....decision under different head of - under constitutional head.....and I filed application mandamus to High Court already.

KIRBY J: I realise that, but normally, if you lose an application, you have, in this country, to pay the costs of your opponent. That is just a normal rule.

MR DUDZINSKI: Actually the respondents are depriving me from employment and they taking opportunities since 5 years and I don't have the money.

KIRBY J: I realise that. They have been brought to Court by your application which has failed. So that the order will be that the application for special leave is refused. The applicant must pay the respondent's costs.

Call the last application.

AT 12.16 PM THE MATTER WAS CONCLUDED