Dudzinski v Kellow [2002] FCAFC 402 (21 November 2002)

Last Updated: 13 December 2002

FEDERAL COURT OF AUSTRALIA

Dudzinski v Kellow [2002] FCAFC 402

WALDEMAR DUDZINSKI v AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT AND GRIFFITH UNIVERSITY

Q 91 OF 2002

KIEFEL, MARSHALL & DOWSETT JJ

21 NOVEMBER 2002

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 91 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WALDEMAR DUDZINSKI APPELLANT
AND:	AYNSLEY KELLOW FIRST RESPONDENT ROY RICKSON SECOND RESPONDENT ERROL STOCK THIRD RESPONDENT BILL HOGARTH FOURTH RESPONDENT CORDIA CHU FIFTH RESPONDENT KEES HULSMAN SIXTH RESPONDENT LYN HOLMAN SEVENTH RESPONDENT COLIN McANDREW EIGHTH RESPONDENT JOHN SCOTT NINTH RESPONDENT GRIFFITH UNIVERSITY TENTH RESPONDENT
JUDGES:	KIEFEL, MARSHALL & DOWSETT JJ
DATE OF ORDER:	21 NOVEMBER 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondents' costs of the appeal.

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	Q 91 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WALDEMAR DUDZINSKI APPELLANT
AND:	AYNSLEY KELLOW FIRST RESPONDENT ROY RICKSON SECOND RESPONDENT ERROL STOCK THIRD RESPONDENT BILL HOGARTH FOURTH RESPONDENT CORDIA CHU FIFTH RESPONDENT KEES HULSMAN SIXTH RESPONDENT LYN HOLMAN SEVENTH RESPONDENT COLIN McANDREW EIGHTH RESPONDENT JOHN SCOTT NINTH RESPONDENT GRIFFITH UNIVERSITY TENTH RESPONDENT

JUDGES:	KIEFEL, MARSHALL & DOWSETT JJ
DATE:	21 NOVEMBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of Spender J declining to set aside a bankruptcy notice or to extend time in which to comply with it. The appellant appears in person as he did before his Honour. Spender J gave detailed reasons for declining both applications. Having listened closely to the oral arguments advanced by the appellant, and having scrutinised carefully his written outline and grounds of appeal, we are satisfied that his Honour's recording of the facts of the case and reasons for dismissing the applications were correct. In accordance with the practice of the Court in matters of this kind, we will not spend time in rehearsing the facts or in repeating his Honour's reasons.

2 The appellant has alleged bias against the learned Judge at first instance. There are a number of reasons why, in our view, this assertion cannot be successful, assuming that the appellant is otherwise entitled to raise it. Firstly, the appellant has not led any evidence sufficient to justify his claim. Secondly, a perusal of his reasons and his notice of appeal indicates that the real complaint is that his Honour has disagreed with him or found against him on numerous occasions in other cases. The appellant asserts that this is evidence of bias. In the course of these proceedings he has raised similar arguments in asserting bias in two members of the present Court. An unfavourable decision by a Judge against a litigant does not mean that the Judge is biased against that litigant, nor does it mean that in subsequent proceedings the litigant can expect to have the Judge disqualified upon the basis of bias or apparent bias.

3 In the present case the appellant sought to go beyond the factual basis for bias alleged in the notice of appeal, referring to an attempt by him to obtain access to tape recordings of proceedings before Spender J. He was unsuccessful. As far as we can see this incident followed the hearing in question. We cannot see that it is relevant for present purposes. In any event a discretionary decision of that nature rarely can be evidence of bias. Many of the appellant's other allegations were quite un-particularised.

4 We wish to comment briefly upon paragraph [16] of his Honour's reasons. His Honour was there dealing with the application for an extension of time in which to comply with the bankruptcy notice. He referred to par 41(6A)(a) of the Bankruptcy Act 1966 (Cth) which provides for an extension of time where proceedings have been commenced to set aside the judgment or order in question. His Honour observed:

"Whilst Mr Dudzinski has initiated an application for leave to issue prerogative writs against a judge of this Court and the three judges of the Court that constituted the Full Court on appeal from Drummond J that in my opinion is not properly to be classified as `proceedings to set aside the judgment' in which the bankruptcy notice was issued."

5 It is necessary to explain what is meant by this passage. The debt which is the subject of the bankruptcy notice was incurred pursuant to an order for costs made against the appellant in the Full Court on appeal from Drummond J. Although there was an application for special leave to appeal to the High Court from the judgment of the Full Court, it was either not accepted for filing or was not prosecuted, we think the latter. Notwithstanding this, the appellant has quite recently sought prerogative relief in the High Court against both Drummond J and the members of the Full Court in connection with those proceedings. It seems that the form in which he presented his application to the High Court Registry caused the Registrar to refer the matter to a Judge before accepting it for filing. The Judge directed the Registrar not to accept the application without the leave of a Judge. That was how matters stood when Spender J heard these proceedings. His Honour formed the view that in those circumstances, proceedings had not been commenced for the purposes of the Bankruptcy Act. We consider that view to be correct.

6 We are told that the Chief Justice of the High Court has now directed that the relevant proceedings not be issued. The appellant is seeking leave to appeal against that decision. Be that as it may, it is clear that there are not now any proceedings on foot to set aside the judgment. His Honour was correct in concluding that there was no basis for extending time pursuant to par 41(6A)(a). We are otherwise in agreement with his Honour's reasons. The appeal should be dismissed.

7 The orders of the Court will be:

(1) That the appeal be dismissed.

(2) That the appellant pay the respondents' costs of the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the The Court.

Associate:

Dated: 13 December 2002

The Appellant appeared In Person.
Counsel for the Respondents:	Ms S Brown
Solicitor for the Respondents:	Minter Ellison
Date of Hearing:	21 November 2002
Date of Judgment:	21 November 2002