Dudzinski, Applications by [2004] HCATrans 251 (23 June 2004)

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Dudzinski, Applications by [2004] HCATrans 251 (23 June 2004)

Last Updated: 3 August 2004

[2004] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B90 of 2002

In the matter of –

An application for leave to appeal by WALDEMAR DUDZINSKI against the refusal of leave to issue a proceeding

Office of the Registry
Brisbane No B37 of 2003

In the matter of –

An application by WALDEMAR DUDZINSKI for leave to issue a proceeding

KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 3.28 PM

Copyright in the High Court of Australia

MR W. DUDZINSKI appeared in person.

KIRBY J: Yes, come forward, Mr Dudzinski. It might be best if you came to the centre of the Court, if you would not mind.

MR DUDZINSKI: May I ask your Honour permission that my wife will - - -

KIRBY J: Of course you may, yes, certainly. Mr Dudzinski, I think I should put on the record at the beginning that I am a member of the Advisory Board of the Centre for Ethics, Law, Justice and Governance of the Griffith University. I have been for some years, but I have been a very neglectful member of that Board, and I even had to take out a piece of paper to get the name of the body. I do not feel embarrassed to sit in the application that you are making, but I thought I should put that on the record. In another proceeding earlier in the week involving Griffith University I indicated that to the parties and neither party raised any objection, but I indicate that so that you will know that I have that past association with Griffith University.

MR DUDZINSKI: I appreciate what your Honour has told me now, because your Honour just mentioned some time ago to me that your Honour has association with Griffith University, I believe that circumstances may arise.....to some degree of potential bias. However - - -

KIRBY J: Are you asking that I not sit in the application?

MR DUDZINSKI: On the ground, I think, your Honour - - -

KIRBY J: If that is your application then you should make that clear.

MR DUDZINSKI: I am making clear that your Honour should not sit because your Honour just disclosed to me now, and I did not know about this.

KIRBY J: Yes, very well.

MR DUDZINSKI: On that ground I just also would request adjournment, but firstly, I would like to – if your Honour will deal with this application which I put a short time ago to your Honour.

KIRBY J: I am not quite following you. Do you wish that I do not sit in the application?

MR DUDZINSKI: .....yes, your Honour.

KIRBY J: That is what you want. Just a moment then.

MR DUDZINSKI: On the ground of what your Honour said to me - - -

KIRBY J: Mr Dudzinski, in view of the matter that you have raised, we will stand your application down to the end of the list. There is a difficulty that Justice Gummow had a previous part in making one of the orders in your matter. Chief Justice Gleeson made another of the orders in your matter, but it may be that there is another Justice in the building who could come and hear the matter, and if that is so, then that is what will be done. If there is not another Justice present then I will have to consider whether in the circumstances of my connection, remote, though it is with Griffith University, I should not sit. We will just see if somebody else can step into my shoes and that will be taken a bit later in the afternoon.

MR DUDZINSKI: Thank you very much, your Honour.

KIRBY J: So if you just sit at the back of the Court for a little while and we will deal with another case in the meantime.

MR DUDZINSKI: Your Honour, may I just mention something?

KIRBY J: I think it is better that you do not. If I am not going to be in it, I do not want to have any involvement, but if I am going to be in the case then I will play a part in what happens.

MR DUDZINSKI: Yes, thank you very much.

AT 3.31 PM THE MATTERS WERE ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.14 PM:

HAYNE J: Mr Dudzinski, although there are two applications we propose that you should have 20 minutes in which to make your oral submissions. Perhaps you could begin, please.

MR DUDZINSKI: First of all, your Honour, I am seeking leave to fight notice of motion seeking adjournment on the grounds of surprise. I have prepared an affidavit in support. I intended to file these documents in the Registry but I was – Mr Wickham told me to make direct application to your Honours.

HAYNE J: Yes, what are the grounds on which you seek to adjourn? Mr Dudzinski, may I say this to you, your time will continue uninterrupted. What is the ground on which you seek to adjourn?

MR DUDZINSKI: On the ground of surprise.

HAYNE J: What is the surprise to which you refer?

MR DUDZINSKI: On about 28 May 2004 I made telephone inquiries to the Registry in High Court. I wanted to speak to Mr Wickham, the Court Registrar originally. I was told by Registry officer, Mr Russell, that he was absent, or was not available for some other reasons. I asked Mr Russell to make inquiries as to whether matter B90 of 2002 and matter B37 of 2003 would be listed for hearing in this High Court session in Brisbane. He promised to do that on the same day and I received a.....reply from Mr Russell on Monday, approximately on 2 June 2004. Mr Russell stated that this matter will not be listed in this session of High Court in Brisbane, possibly a hearing can be pressed for video conference in October this year.

HAYNE J: When were you notified that they would be listed today?

MR DUDZINSKI: I was notified by letter of Mr Wickham. Subsequently I made inquiries - - -

HAYNE J: What date is that letter?

MR DUDZINSKI: It is important to say something before I answer the question. Subsequently to that letter which I received from Mr Russell, I made telephone inquiries to Mr Wickham. I had occasion to speak to him directly, and he still confirmed that matter B90 of 2002 would not be listed but only matter B57 of 2003 would be listed this session. Mr Wickham sent a letter to me dated 2 June 2004 which I received on about 4 June 2004 in which he stated that both matters would be listed in this year.

HAYNE J: That is 4 June you received the letters.

MR DUDZINSKI: Yes, approximately. Mr Wickham stated on previous occasions that I am not allowed to prepare supplementary appeal books and I wrote him a letter and he never answered. I received from his – I called him on about three weeks ago and he did not respond to my letter as to whether I can file supplementary appeal books which are quite substantial and he told me three weeks ago approximately that I can do it. Due to these circumstances, matter B90 of 2002 is not ready for hearing. Appeal books are badly settled and I make an application today in writing, notice of motion before the High Court and I make that in writing in support requesting your Honour to grant adjournment to prepare myself properly.

HAYNE J: And to adjourn which matters?

MR DUDZINSKI: B90 of 2002. I just seek leave now to file notice of motion and affidavits in support for my application.

HAYNE J: We will perhaps deal with the application to adjourn matter B90 of 2002.

In matter B90 of 2002, the applicant applies for an adjournment of the hearing of his application for leave to appeal from a judgment of Chief Justice Gleeson refusing to give him leave to issue a proceeding. There being no other party to the application for leave, although Mr Dudzinski’s application for adjournment points to no particular prejudice that he would suffer beyond generalised allegations of surprise, we think it appropriate that matter B90 of 2002 should be stood over to a date to be fixed and is not to be re-listed, save on Mr Dudzinski’s written assurance that the matter is ready to proceed on the day fixed for its hearing.

MR DUDZINSKI: So should I understand, your Honour, that the application has been given to me?

HAYNE J: In matter B90. What is it then that you would wish to say about matter B37?

MR DUDZINSKI: Matter B90 has been adjourned?

HAYNE J: Yes.

MR DUDZINSKI: Thank you very much, your Honour. In relation to matter B37, I make the same application, because I wish to proceed - - -

HAYNE J: Mr Dudzinski, I asked you what application you were making about which matter. You told me matter B90. You now say that you want to make a like application in B37. This is not a terribly efficient way of proceeding. What do you wish to say about matter B37?

MR DUDZINSKI: In matter B37, I attempted to file an affidavit which is material to this proceeding, and firstly Mr Wickham refused to accept my affidavit on the ground that it does not comply with Order 61. It was not sufficient to him – reproduction of documents. I called the Registry and I have spoken to Ms Rogers. She invited me to write a letter and explain
what actually is position. I sent a letter to – Mr Wickham sent me back my affidavits, talking about these affidavits do not comply sufficiently with Order 61. The material, according to him, was not sufficiently reproduced. What it is – the photocopies were not, according to him, sufficient, but I could read them. Subsequently, I sent a letter to Ms Rogers and asked her to challenge the decision of Mr Wickham, and Ms Rogers put different reasons but I cannot file fresh evidence because this evidence was not before Justice McHugh at first instance.

I wish to proceed under Order 41 of the High Court Rules, in addition to my application for leave to appeal, because this matter is not special leave. It is leave to appeal application. That is the proper test and I request your Honour to grant the adjournment and proceed concurrently with my application under Order 41 of the High Court Rules with this matter B37 of 2003 because procedure, according to Ms Rogers, is preventing me from putting fresh evidence, and fresh evidence is very vital. Order 41 will allow me to proceed.....

As Mr Wickham confirmed to me on 12 June 2004 that this matter will be listed in this session of the High Court, unfortunately Mr Russell confirmed to me for this before that this matter would not be listed. Therefore, misstatements caused me to believe that these proceedings would not go. Furthermore, my financial situation is such that I cannot comply on short notice with preparing court documents, because they are quite costly and I need a bit more time – two or three weeks’ notice. This is the ground of my submission in an application for adjournment, your Honour. I would like to seek leave to file a written notice of motion in relation to my application in matter B37 of 2003. That is my application for adjournment, your Honour.

HAYNE J: Mr Dudzinski, the applicant, now applies for the adjournment of the second of the matters standing in the list today in which he is engaged, matter B37 of 2003. The grounds he advances in support of that application are not significantly different from those advanced in relation to the earlier application to adjourn in matter B90. The orders which were made in respect of matter B90 were made on the understanding, perhaps erroneous – it matters not – that the application in matter B37 was otherwise ready to proceed.

Given the course of events that now has occurred, in which it is apparent that Mr Dudzinski seeks the adjournment of both applications, we are of the opinion that it is better to deal with both applications together and to recall the orders made earlier in respect of matter B90, substituting for those orders other orders of adjournment of both applications, which will adjourn both applications but on slightly different terms from those which were earlier announced.

Mr Dudzinski has had a time in which to prepare the argument in support of the application for leave to appeal which he makes in each of these matters. In support of those applications, he has filed written summaries of argument.

We are of the view that both matters should be stood over to a date to be fixed. We consider that the terms on which those applications are to be stood over should be as follows. First, in each matter, the applicant should file the whole of his argument in writing, but not exceeding 20 pages, in support of the application which he makes for leave to appeal in each matter. When his applications for leave to appeal are listed, subject to any contrary order that may be made by the Full Court on that day, the argument he advances should be confined to the written argument that he has filed in accordance with this direction.

The time by which the written argument should be filed should be ample, in order that Mr Dudzinski may have sufficient time to consider its content and to ensure that in neither case does it exceed the 20 page limit which is to be imposed. Accordingly, 31 August 2004 will be fixed as the time by which the written argument is to be filed.

The third condition upon which the matters will be adjourned is that neither is then to be re-listed, save on Mr Dudzinski filing his written assurance that the matter will be ready to proceed on the day fixed by the Court. Accordingly, orders will be made in the following terms.

1. In each application, the application will be stood out of the list to a date to be fixed;

2. The applicant, on or before 31 August 2004, will file the whole of his argument in writing, not exceeding 20 pages in length, in support of the application for leave;

3. Subject to any contrary order of the Full Court before whom the matter is listed, the applicant is to be confined to his written argument;

4. The matter is not to be re-listed, save upon Mr Dudzinski filing his written assurance that the matter will be ready to proceed on the date fixed.

The Court will adjourn.

AT 4.32 PM THE MATTERS WERE ADJOURNED