FEDERAL COURT OF AUSTRALIA

Dudzinski v Centrelink [2003] FCA 308

PRACTICE & PROCEDURE – whether O 35 r 7 can be used as an alternative to the appeal process – whether application brought before a judge by a party who has been unsuccessful before that judge on a previous occasion provides a basis for complaint of apprehended or actual bias – whether an interlocutory order for the payment of money can be made prior to determining where there is any entitlement to the payment

Judiciary Act 1903 (Cth) s 39

Federal Court of Australia Act 1976 (Cth) s 24

Federal Court Rules, O 52

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 followed

Décor Corp Pty Ltd v Data Industries (1991) 33 FCR 397 referred to

Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 referred to

Dyson Appliances Ltd v Hoover Ltd (No 4) (Chancery Division, Mr Justice Laddie 18 February 2003 unreported) approved

WALDEMAR DUDZINSKI and ANNA DUDZINSKI v CENTRELINK and JUDY O’SHEA and JOHN CURCURRUTO

No Q 15 of 2003

SPENDER J

BRISBANE

4 APRIL 2003

THE COURT ORDERS THAT:

1.             The notice of motion dated 2 April 2003 seeking an extension of time within which to appeal is declined, and leave to appeal the interlocutory order of 28 February 2003 is refused.

2.             The applicant is to pay the respondents’ costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     The second applicant, Anna Dudzinski, has made an application that I disqualify myself from hearing this notice of motion on the grounds of either actual bias or apprehended bias.  I have, in the course of the Dudzinskis’ litigation, had to make a number of decisions in respect of various applications brought both by Waldemar Dudzinski and against him, and concerning also applications by Anna Dudzinski.  In respect of a number of those, my determination has been made the subject of appeal to the Full Court and, in at least one instance, from the judgment of the Full Court to the High Court. 

2                     The present notice of motion concerns an application for extension of time within which to seek leave to appeal from my declining to grant interlocutory relief pending an application by, relevantly, Anna Dudzinski, seeking to challenge a decision by Centrelink to refuse the payment of allowances in October of last year.  The nature of this interlocutory application was to require the payment of moneys.  The application was based on the claim that, in the absence of that payment, severe hardship would be caused to the applicant.

3                     On that occasion I declined to make any order, not because of a rejection of the claim that Mrs Dudzinski was presently experiencing hardship, but because, in the exercise of the judicial function of the Federal Court of Australia to deliver justice according to law, there was no basis on which the Court could, let alone should, make the order by way of interlocutory relief for the payment of money.

4                     That Mr Dudzinski has generally, if not universally, been unsuccessful in his various applications before me, and that I have, on occasions, made decisions contrary to the contentions of Mr Dudzinski or the contentions of Mrs Dudzinski or made on her behalf,  does not establish either actual bias on my part nor, in my view, the apprehension of bias by any reasonable observer.

5                     The function of deciding, according to law, may result in a decision adverse to a particular person.  The fact that that person subsequently brings an application before the same judge who has decided adversely to them on an earlier occasion, does not provide a basis for a successful claim of actual bias, or of apprehended bias.  As the High Court has pointed out relatively recently in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, a judge ought not lightly to disqualify himself or herself in the course of one’s judicial duty from a particular task, however attractive such a course might be.  In the circumstances, in accordance with that indication, I decline to disqualify myself on either of the grounds alleged.

6                     I am presently concerned with the notice of motion which was filed on 2 April 2003.  By that notice of motion Anna Dudzinski seeks orders in the appellate jurisdiction of the Federal Court of Australia, pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) and O 52 of the Federal Court Rules, as follows: 

“(1)  Leave to file this notice of motion out of time to seek leave to appeal from the decision of Spender J refusing interlocutory injunction on 28/2/2003 be extended and granted.

(2)         Leave to appeal from the decision of Spender J refusing interlocutory injunction on 28/2/200.

(3)         Other orders that seem just.” 

7                     The notice of motion is part of the interlocutory process associated with an application which was filed on 13 February 2003 by Mrs Dudzinski as second applicant, and her husband, Waldemar Dudzinski as first applicant.  The application was made under s 39B of the Judiciary Act 1903 (Cth) for orders of mandamus, prohibition and injunction.  The first order sought in that application was an order of prohibition, prohibiting the first and second respondents in the principal application, that is to say Centrelink and Judy O’Shea, an officer at Centrelink at Toowong:

“… to refuse a payment of the second applicant’s entitlement called Newstart Allowance since or about 10.9.2002, and totalling as at present about $4300.”

That is to say, the claim is an order of prohibition, prohibiting “a refusal of payment”.  Essentially, it appears that Mrs Dudzinski seeks what she claims is an entitlement to the payment of Newstart Allowance, notwithstanding that she claims that in order to be paid Newstart Allowance, she would be coerced into signing a form called “Preparing for Work Agreement”, and a form called “Claim for Work for Job Network Assistance While Looking for Work”.

The application filed on 13 February 2003 also sought an injunction against the first and second respondents requiring them:

“To pay immediately outstanding money of CA $4300.00 to the second applicant, being her entitlement called newstart allowance since or about 10/9/2002, totalling as at present about $4,300.00, and to continue such payments.”

By way of interlocutory relief the application sought:

“Interlocutory relief in injunction requiring the first and second respondent to pay immediately CA $8,600.00 to the applicants; ie CA $4300 each.” 

8                     On 28 February I declined to make any order by way of interlocutory relief sought, notwithstanding that there was evidence of financial difficulty by Mrs Dudzinski at the time.  The question of her financial resources is not a matter that was relevant to the application for interlocutory relief.  I found that there was no legal entitlement to an order of a money payment of the kind sought by interlocutory relief, because the entitlement to money payment was the very issue for determination in the principal proceeding.

9                     The entitlement or otherwise of Mrs Dudzinski to Newstart Allowance is the crucial question in these proceedings.  Whether that entitlement of Mrs Dudzinski is made good, or it be demonstrated that the decision of Centrelink not to pay her was sound, cannot affect the claim for an immediate entitlement to those funds.

10                  The central question in the principal proceedings is set down for hearing on 23 May 2003, and the question of what relief, if any, Mrs Dudzinski is entitled to will be determined then.  I am presently concerned, first with the question of whether the time within which to seek leave to appeal the interlocutory order that I made on 28 February should be extended, and then secondly, whether leave to appeal that interlocutory order should be granted.

11                  In the ordinary way, leave to appeal the order should have been sought within seven days of 28 February.  That was not sought.  In fact what happened was a notice of motion was filed in the Registry purporting to have the orders of 28 February set aside, reliance being placed on O 35, r 7(2)(b) and (2)(c).  That rule permits the Court a discretion to set aside a judgment after an order has been entered, where the order was obtained by fraud or the order was interlocutory.  As the authorities in respect of that rule indicate, exceptional circumstances have to be shown where an order once entered will be set aside pursuant to that rule.  It is in the nature of the slip rule.  It certainly is not an alternative to the appellate procedure in respect of interlocutory judgments.

12                  That motion was not accepted by the Registrar.  It was Mr Dudzinski, on Mrs Dudzinski’s behalf, who again requested Ms Reynolds, the Deputy Registrar who made that decision, to refer to another judge (except Kiefel J and Dowsett J) the review of that decision.  Drummond J affirmed the decision of Deputy District Registrar Reynolds.  The communications between the Dudzinskis and the Deputy District Registrar, which was extremely resource intensive insofar as the Registry staff was concerned, and no doubt stressful as well, are detailed in the affidavit of Mrs Dudzinski, affidavit B, filed today by leave.

13                  The effect of that, in my judgment, is that there has been no satisfactory explanation for the delay, the reasons for the delay simply being that in the first instance an inappropriate procedure was invoked, and secondly, a considerable period after that matter was disposed of has elapsed, again without satisfactory explanation, before the application seeking an extension of time was filed on 2 April.  However, I prefer to base my decision declining to grant an extension of leave within which to appeal on other bases,

14                  The considerations which lead me to decline the extension of time are based on the more basal question of whether in these circumstances an application for leave to appeal the interlocutory order would enjoy any prospects of success.  Whether leave should be granted from an interlocutory order, amongst other things, involves a consideration of whether sufficient doubt attends the order sought to be appealed to warrant it being reconsidered by a court of appeal, and whether substantial injustice would result if leave were refused supposing the decision would be wrong.

15                  In support of those fundamental principles, reference need only be made to Decor Corp Pty Ltd v Data Industries (1991) 33 FCR 397, as well as the judgment by the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170.  In this particular case, there can be no doubt at all that there was no legal basis for the making of an interlocutory order requiring the payment of money as sought in the interlocutory application at a time prior to the determination of whether there was any entitlement to the payment of money. 

16                  That is precisely the question which the principal proceedings are intended to resolve.  There is a broad analogy, although by no means close, between a claim for a party to payment of its costs in a proceedings when the relief in the principal proceedings has not yet been determined favourably to the applicant for part-payment of costs.  An English court recently has had to consider whether any such application was competent and it was answered in the negative.  See Dyson Appliances Ltd v Hoover Ltd (No 4) (Chancery Division, Mr Justice Laddie 18 February 2003 unreported).

17                  Here, the entitlement to Newstart Allowance is the central question in the principal proceedings.  It is not competent in my view for a court, by way of interlocutory order, to anticipate a favourable result of the final judgment and make orders to give effect to any such favourable final result.  In those circumstances, the prospects of a successful appeal, should leave be granted, in my opinion are nil, and in those circumstances it follows that leave to appeal ought to be refused.

18                  Because, then, the application for leave to appeal enjoys insufficient prospects of success, the application for an extension of time within in which to seek leave to appeal will be refused.  Mrs Dudzinski has repeatedly pointed to the circumstances of hardship she presently finds herself in.  As I indicated in the course of discussion, and do again, the question of hardship is not a matter which is relevant to the legal determination of whether there is, or there was in September/October last year, an entitlement in Mrs Dudzinski to Newstart Allowance.

19                  That is the question which falls to be determined in the principal proceedings and the circumstance that she may presently be in circumstances of serious hardship is not relevant, either to that question or to the subsidiary question of whether there is an entitlement on an interlocutory basis prior to the determination of that question in the principal proceedings.  It is also a relevant circumstance on the declining of leave to appeal that the principal question of entitlement will be decided shortly.

20                  The motion seeking an extension of time within which leave to appeal is declined and leave to appeal the interlocutory order is refused.    The motion is refused with costs.

Associate:

Dated:              15 April 2003