Waldemar Dudzinski v Andrew Aitken & Anor [1998] FCA 131 (13 February 1998)

Last Updated: 27 April 1998

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	No qg 117 of 1997

BETWEEN:	waldemar dudzinski
AND:	andrew aitken and "able" supporting and training agency

JUDGE:	cooper j
DATE OF ORDER:	13 February 1998
WHERE MADE:	brisbane

THE COURT ORDERS THAT :-

1. The parties file and serve an affidavit of documents by 4.00 pm 27 February 1998.

2. Inspection of documents be given and taken by 4.00 pm 6 March 1998.

3. Subject to all proper objections by the respondent to refuse to answer any interrogatory the applicant have leave to deliver interrogatories in the form marked "AA1" to the affidavit of the applicant filed 12 February 1998.

4. The application for directions be adjourned to a date to be fixed by the Registrar and costs of today to be the respondent's costs in the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	No QG 117 of 1997

BETWEEN:	waldemar dudzinski
AND:	andrew aitken and "able" supporting and training agency

JUDGE(S):	cooper j
DATE:	13 february
PLACE:	brisbane

EXTEMPORE REASONS FOR JUDGMENT

This is an application for summary judgment.

On an amended application filed on 20 October 1997 the applicant seeks damages against the respondent, Andrew Aitken, on the grounds of misleading and deceptive conduct under the Trade Practices Act, for the torts of defamation and negligence, and further, damages for the tort of deceit. The statement of claim filed by the applicant alleges that there was a contract made between the Commonwealth Employment Service, Mr Aitken as a partner of "Able" Supporting and Training Agency and the applicant, Mr Dudzinski.

It is alleged that that contract obliged Mr Aitken to obtain on behalf of the applicant employment in his field of interest, qualification, or study. It is alleged that Mr Aitken breached that contract by offering or suggesting employment in situations which were of no interest to the applicant; principally a position in a commercial laundry and later the provision of voluntary services to the Queensland Department of Environment and Heritage with a view to securing a long term position with that Department.

Mr Aitken in an affidavit filed in these proceedings denies that he was party to any contract with the applicant and swears that the contractual relations entered into by the agency were between it and the CES and that the obligations undertaken did not involve any obligation to the applicant to find him employment of the type which he now contends. There is, therefore, a threshold question as to whether or not there was a tripartite agreement which gave rise to enforceable obligations by the applicant, or whether the true nature of the relationship between the CES and the agency was one whereby the applicant was entitled to assistance to find employment or to prepare applications for employment without there being any obligation to produce a result, or to find avenues of employment in areas acceptable to the applicant.

The need to establish the true relationship between the parties is important because it gives rise, then, to an issue as to whether or not there was a duty of care owed to the applicant by Mr Aitken in the preparation of any material and in any reporting to the CES. The core complaint which gives rise to the allegations of actionable wrong is a report prepared by Mr Aitken and sent to the Commonwealth Employment Service. The applicant submits that on its face the report is defamatory of him because it makes statements as to his behaviour in attending an interview with the Department of Environment and Heritage, and generally in relation to his dealing with the agency.

The authorship of the report is not denied; that it was sent to the CES is not denied. The author, Mr Aitken, however swears that the contents of the report are true and correct in all respects and represents a true record of what occurred on the occasions referred to in the report. Assuming for the moment that some defamatory imputation may be drawn from the contents of the report, there is clearly, in my view, evidence in the affidavit and in the relationship to show that publication occurred on an occasion of qualified privilege in respect of a person who had a proper interest to know, or at least it cannot be said that such a defence to the defamatory action would not lie.

To the extent that it is alleged that the report was negligently prepared, or that its contents were false and misleading, the issue again seems to me to depend upon a determination as to whether the contents of the report are, in fact, true and correct as to what occurred on the occasions referred to in the report. Likewise, in relation to the claim for deceit. Where there are two contrary versions of fact put forward by each party to a proceedings, and there is nothing in the material to show that one is plainly false and unacceptable, the proper course is to resolve the conflict at trial and not on an application for summary judgment.

I am satisfied that this is not an occasion upon which to grant summary judgment, and that the matter ought to proceed to trial in the ordinary way unless it can be resolved some other way between the parties. Therefore the application for summary judgment is dismissed.

THE COURT ORDERS THAT :-

1. The parties file and serve an affidavit of documents by 4.00 pm 27 February 1998.

2. Inspection of documents be given and taken by 4.00 pm 6 March 1998.

3. Subject to all proper objections by the respondent to refuse to answer any interrogatory the applicant have leave to deliver interrogatories in the form marked "AA1" to the affidavit of the applicant filed 12 February 1998.

4. The application for directions be adjourned to a date to be fixed by the Registrar and costs of today to be the respondent's costs in the proceedings.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate:

Dated: 13 February

Applicant in person:	Mr Dudzinski
Counsel for the Respondent:	J M Rosengren
Solicitor for the Respondent:	McCullough Robertson
Date of Hearing:	13 February 1998
Date of Judgment:	13 February 1998