Dudzinski v Spender[2008] QSC 50

SUPREME COURT OF QUEENSLAND 

1. Mr Dudzinski seeks the leave of the court to issue criminal proceedings against the respondent who is a Judge of the Federal Court of Australia based in Brisbane and to whom I shall refer in these reasons as “the Judge”.

2. Mr Dudzinski, in general terms, is aggrieved

• that the Judge refused to issue a mandatory injunction compelling the Commonwealth to pay his wife a New Start Allowance and thereby has deprived him of a partner’s allowance;

• that the Judge made a sequestration order consequent upon a judgment for costs against Mr Dudzinski arising out of his litigation against Griffith University and members of the staff of the University;

• that the Judge did not recuse himself as requested from hearing and determining the application for the sequestration of Mr Dudzinski’s estate having heard and determined numerous interlocutory proceedings adverse to him.

There are other subsidiary complaints, for example, that by publishing the reasons for judgment on the Internet Mr Dudzinski’s employment prospects have been compromised. Mr Dudzinski seeks an order for compensatory damages arising out of the non-payment by the Commonwealth of money under the Social Security Act 1991 (Cth) consequent upon the Judge’s decision.

3. It is Mr Dudzinski’s contention that the Judge has not determined these matters in the course of carrying out his judicial duties but because he is animated by a personal desire to injure Mr Dudzinski (and his wife, although Mrs Dudzinski is not a party to this application).

4. Mr Dudzinski’s “information” exhibited to his affidavit of service filed on 18 February 2008 expresses the above summary in much more extreme language, accusing the Judge of gross impropriety when deciding matters concerning Mr (and Mrs) Dudzinski. For example,

“In order to achieve the objective to decline the requested relief you fraudulently and in breach of your duties acted wilfully without jurisdiction and falsified by act of wilful omission the document being your decision Dudzinski v Centrelink …”

5. He supports these contentions by a lengthy affidavit which describes, in places in intemperate language, the complaints he has against the Judge’s approach to hearing and determining proceedings involving him and his wife. Mr Porter, who appeared for the Judge, submitted that Mr Dudzinski is a disappointed litigant whose proceedings have been heard and determined in an entirely regular fashion.

The impugned proceedings

6. Mr Dudzinski is a party to two principal disputes: Kellow v Dudzinski [2003] FCA 103 (Q7022 of 2002): the Griffith University sequestration proceedings (exhibit 1); and Dudzinski v Centrelink [2003] FCA 1500 (Q15 of 2003): the Centrelink proceedings (exhibit 2). The reasons in these decisions, together with Mr Dudzinski’s affidavits, set out the history of the proceedings and may, without compromising the detailed analysis of the facts to be found in those documents, be reasonably succinctly summarised. There were, however, many interlocutory applications and a failure to mention all of them should not be understood as overlooking them. There are, for example, 10 hearings involving Mr Dudzinski listed on the index to the High Court’s transcripts.

7. Mr Dudzinski seeks leave to issue the criminal proceedings pursuant to s 686 of The Criminal Code 1899 (Qld) (“the Code”) which enables any information to be presented by a private person against another for an indictable offence. Mr Dudzinski alleges that the Judge has committed an indictable offence as described in ss 132 and 136 of the Code and s 34 of the Crimes Act 1914 (Cth).

8. Two broad issues arise for consideration, namely, whether those provisions can be employed as a matter of law to achieve what Mr Dudzinski seeks and whether, as a matter of discretion, if any do, leave should be granted. But first, Mr Dudzinski’s proceedings before the Judge need to be described.

9. Mr Dudzinski brought proceedings against Griffith University and nine of its academic and administrative staff raising some 11 separate causes of action in 1998. An aspect of the proceedings seems to have been a refusal by the University to grant Mr Dudzinski exemption from taking certain subjects on the basis of previous studies. On 8 April 1999, Drummond J ordered much of Mr Dudzinski’s statement of claim to be struck out. He also permanently stayed claims against two of the academic respondents.

10. On 27 August 1999, the Full Federal Court dismissed Mr Dudzinski’s application for leave to appeal Drummond J’s decision, and ordered that Mr Dudzinski pay the costs. It is that order for costs which founded the bankruptcy proceedings which were heard and determined by the Judge on 20 February 2003 and about which complaint is made. After the Full Federal Court dismissed his appeal Mr Dudzinski filed an application in the High Court for special leave to appeal that decision. Mr Dudzinski had earlier made a complaint about racial discrimination by Griffith University to the Human Rights and Equal Opportunity Commission in July 1998. It is unnecessary to say anything further about it save to note that the complaint was not upheld over a series of decisions including reviews.

11. The Judge refused Mr Dudzinski’s application for a stay of the orders of the Full Federal Court on 23 November 1999. On 7 January 2000, the Deputy Registrar of the Federal Court (Brisbane Registry) made an estimate of the costs ordered to be paid by the Full Federal Court in the amount of $17,700. Mr Dudzinski objected but that objection was dismissed with costs.

12. On 27 April 2000, Mr Dudzinski’s special leave application for leave to appeal from the decision of the Full Federal Court to the High Court was deemed abandoned.

13. On 24 May 2000, the Judge ordered that Mr Dudzinski’s notice of motion to review the certificate of taxation issued by the Deputy Registrar in respect of the Full Federal Court’s costs order be dismissed.

14. On 19 December 2001, the Official Receiver issued a bankruptcy notice on the application of the joint judgment creditors in the Griffith University proceedings. On 11 February 2002, Mr Dudzinski applied to the Federal Court to set aside the bankruptcy notice. On 15 March 2002 the Judge made a number of interlocutory orders in relation to those proceedings and on 22 May 2002 ordered that Mr Dudzinski’s application to set aside the bankruptcy notice and extend time for compliance with the bankruptcy notice be dismissed with costs.

15. In the meantime, Mr Dudzinski had commenced proceedings in the Supreme Court of Queensland against Griffith University and two academics. Mr Dudzinski’s application to set aside the bankruptcy notice had included that he had, in the Supreme Court of Queensland, a counterclaim, set off or cross demand which he could not have set up in the proceedings in which the bankruptcy notice was dismissed. The Judge dismissed that claim because the Supreme Court proceedings were not against the joint judgment creditors.

16. On 3 October 2002, Gleeson CJ dismissed an application by Mr Dudzinski for leave to issue a proceeding in the High Court against four Judges of the Federal Court. On 31 October 2002, Kiefel J ordered that Mr Dudzinski’s application for an adjournment of his appeal to the Full Court of the Federal Court in relation to the Judge’s decision of 22 May 2002 dismissing, inter alia, his application to set aside the bankruptcy notice be dismissed with costs.

17. On 21 November 2002, the Full Court of the Federal Court ordered that Mr Dudzinski’s appeal from the Judge’s decision of 22 May 2002 concerning the validity of the bankruptcy notice be dismissed with costs.

18. The bankruptcy petition was filed on 22 November 2002 and on 13 December 2002 Mr Dudzinski filed a notice of intention to oppose the creditors’ petition.

19. On 19 December 2002, Mr Dudzinski applied to the High Court for special leave to appeal the decision of the Full Federal Court of 21 November 2002 dismissing his appeal from the order of the Judge.

20. Mr Dudzinski filed a summons in the High Court on 22 January 2003 seeking a stay of the hearing of the creditors’ petition pending the hearing of his application for special leave from the decision of Gleeson CJ and his application for special leave from the decision of the Full Court of the Federal Court and other matters. Callinan J dismissed that application on 29 January 2003 noting in his reasons (which were quoted by the Judge in Kellow v Dudzinski at para 33):

“The applicant has instituted in relation to this matter a great deal of expensive, prolonged, collateral litigation in none of which has he been successful. Each of the applications involves a degree of inconvenience and expense to the respondents. It seems to me also, on a preliminary and by no means exhaustive review of the prospects, that the proceedings instituted in the High Court by Mr Dudzinski do not enjoy any substantial prospects of success.”  

21. On 16 January 2003, Mr Dudzinski filed an amended notice of intention to oppose the bankruptcy petition on a number of grounds.

22. After hearing argument the Judge reserved his decision and in a written judgment the Judge set out in some detail the chronology of Mr Dudzinski’s proceedings in the Federal Court, the Full Federal Court and the High Court of Australia and the Human Rights and Equal Opportunity Commission. He addressed the many grounds raised by Mr Dudzinski in opposition to the creditors’ petition, which are set out fully in the body of his reasons. Mr Dudzinski has employed extreme language in his grounds of opposition, including allegations of fraud and corruption against the Deputy Registrar of the Federal Court. But he also raised arguments such as, that there was no act of bankruptcy because the notice was defective; that the judgment founding the bill of costs was not final; that no opportunity to set up the Supreme Court proceedings was given; that the quantum of the bill of costs was excessive; and that there was bias in the composition of the Full Federal Court which upheld Drummond J’s orders.

23. The Judge considered carefully the relevant provisions of the Bankruptcy Act 1966 (Cth) and various authorities about the correct approach to the issues raised by Mr Dudzinski in his opposition to the sequestration order. The Judge made a sequestration order against the estate of Mr Dudzinski on 20 February 2003.

24. The other principal proceeding determined by the Judge concerns Centrelink. Mr and Mrs Dudzinski filed an application on 13 February 2003 in the Federal Court in the Brisbane Registry against Centrelink and two employees in respect of a refusal by Centrelink to pay them various social security payments. The Judge, by interlocutory order, dismissed Mr Dudzinski from those proceedings. The application was for orders of mandamus, prohibition and injunction pursuant to s 39B of the Judiciary Act 1903 (Cth). The nature of the complaint is somewhat complex but, in essence, Mrs Dudzinski complained that Centrelink and the other respondents had refused to pay her an entitlement described as a New Start Allowance since about September 2002. In order to qualify for the allowance the second respondent required her to enter into an agreement with the Commonwealth. That decision was upheld by the third respondent. Mrs Dudzinski strenuously objected to signing the agreement contained in a form entitled Preparing for Work Agreement. She contended it was unlawful as not being required by the Social Security Act 1991 (Cth) which authorised the payment of the allowance. She also contended that she was wrongfully required to register with a Job Network member since it was not required by the Social Security Act. Since she would not sign this agreement the allowance was not paid.

25. In considering the matter the Judge proceeded in an entirely orthodox fashion identifying the relevant legislation, applying it to the facts which were basically uncontentious, and reached the conclusion that Mrs Dudzinski was not qualified to received the New Start Allowance at any time during the period of her claim because she had not complied with the provisions of the Social Security Act which governed her entitlement to the allowance. That was because she was not at any time during that period prepared to enter into a New Start Allowance Agreement. The Judge held that the Secretary to the relevant Commonwealth Department responsible for administering the Social Security Act could lawfully require her to enter into such an agreement and impose conditions.

The relief sought

26. I turn now to the nature of the relief sought by Mr Dudzinski. He seeks leave to issue criminal proceedings in the form of a document headed “Notice to judicial officer of application for leave to present information” in respect of offences against s 34(1)(b) of the Crimes Act 1914 (Cth) and ss 132 and 136 of the Code.

27. Section 34(1)(b) of the Crimes Act provides that:

“(1)Any person who:

 (a)  …; or

(b)being a judge or magistrate, intentionally and perversely exercises federal jurisdiction in any matter in which he has a personal interest; shall be guilty of an offence.

Penalty:  Imprisonment for 2 years.”

28. Section 132 of the Code provides:

“(1)Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.

(2)The offender can not be arrested without warrant.

(3)A prosecution for an offence defined in this section shall not be instituted without the consent of the Attorney-General.”

29. Section 136 of the Code generally reflects the provisions of s 34 of the Crimes Act, although addressed to a more restricted group, namely:

“Any person who –

(a)…; or

(b)being a justice, wilfully and perversely exercises jurisdiction in any matter in which the justice has a personal interest; is guilty of a misdemeanour, and is liable to imprisonment for 3 years, and to be fined at the discretion of the court.”

30. The power of this court to grant the leave sought by Mr Dudzinski is to be found in s 686 of the Code:

“(1)Any person may by leave of the Supreme Court present an information against any other person for any indictable offence, alleged to have been committed by such other person.

(2)An information presented by leave of the court is to be signed by the person on whose application the leave is granted, or some other person appointed by the court in that behalf, and filed in the Supreme Court.

(3)The person who signs the information is called the prosecutor.

(4)The information is to be intituled 'The Queen on the prosecution of the prosecutor (naming the person) against the accused person (naming the person)', and must state that the prosecutor informs the court by leave of the court.

(5)Except as otherwise expressly provided, the information and the proceedings upon it are subject to the same rules and incidents in all respects as an indictment presented by a Crown Law Officer and the proceedings upon such an indictment as hereinbefore set forth.”

Offence pursuant to s 132 of the Criminal Code

31. The offence created by s 132 is an indictable offence. There is, however, nothing in the material to support a conspiracy – that is, an agreement with another to pervert the course of justice. Nor has the consent of the Queensland Attorney-General been obtained – a necessary prerequisite for proceeding further. Accordingly, no information may be laid relying on this offence irrespective of whether it could be addressed to a Commonwealth judicial officer.

Offence pursuant to section 136(b) of the Code

32. The Judge is not a “justice” as that expression is found in the Code. By the Acts Interpretation Act 1954 (Qld), s 36, where “justice” appears in any Queensland legislation it refers to a justice of the peace unless the contrary intention appears. There is no contrary intention in s 136 of the Criminal Code. Nothing would support a construction that it is a reference to a judge of a superior court in Queensland and particularly not to a judge of the Federal Court of Australia. The Code defines “judicial officer” in s 1 which expressly includes “a justice of the peace constituting a court”. This serves to emphasise the distinction in s 136.

Section 34 of the Crimes Act

33. The offence created by s 34(1)(b) of the Crimes Act is an indictable offence being punishable by imprisonment for more than 12 months, s 4G, Crimes Act. The question is whether it is to be characterised as an “offence” encompassed by s 686 of the Code. The definition of “offence” in s 2 of the Code is broad:

“An act or omission which renders the person doing the act or making the omission liable to punishment is called an ‘offence’.”

The Western Australian Court of Criminal Appeal in Kiely v R [1974] WAR 180 construing the identical definition of “offence” in s 2 of the Criminal Code of Western Australia concluded that it should be confined to acts which would constitute an offence under Western Australian law. This decision was approved in R v Hughes [2001] WASCA 300; (2001) 24 WAR 536.

34. Mr Dudzinski contended that s 686 of the Code providing for private prosecutions is not confined to offences under Queensland legislation but would extend to Commonwealth offences. Had he been able to express it in this way, he would no doubt have argued that s 686 being procedural in its effect is applied to Commonwealth indictable offences by virtue of s 68(1) of the Judiciary Act 1903 (Cth).  That section provides that the laws of a State respecting matters of procedure apply, insofar as they are applicable, to persons who are charged with offences against the laws of the Commonwealth in respect of which jurisdiction is conferred on those courts. The form of an indictment is part of the procedure for bringing a person to trial however s 69 of the Judiciary Act expressly concerns indictments:

(1)Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney‑General of the Commonwealth or of such other person as the Governor‑General appoints in that behalf.

(2)Any such appointment shall be by commission in the Queen's name, and may extend to the whole Commonwealth or to any State or part of the Commonwealth.

(2A)Nothing in subsection (1):

(a)affects the power of the Director of Public Prosecutions to prosecute by indictment in his or her official name; or

(b)affects, or shall be taken to have affected, the power of a Special Prosecutor to prosecute by indictment in his or her own name;

indictable offences against the laws of the Commonwealth.

(3)…”

35. In R v Bright [1980] Qd R 490 the Full Court considered whether counsel who had been briefed for the Commonwealth but who held no commission pursuant to s 69(1) was entitled to present in the Supreme Court an indictment to undertake the prosecution of a Commonwealth offence at the trial. The indictment itself was signed by a person appointed pursuant to the Judiciary Act by the Governor-General. The Full Court was clear that it was necessary for an indictment charging a Commonwealth offence to be signed by a person named in s 69. Connolly J observed at 500:

“The philosophy of s 69 seems to me tolerably clear. The Commonwealth controls the prosecution of indictable offences against its laws by requiring that the indictment be in the name of the Attorney-General or some other person appointed by the Governor-General. The requirement is not, be it noted, that the prosecution be conducted by one of the specified officers but that prosecution be by indictment and that the indictment be in the name of one of them. This no doubt enables the Attorney-General and the Governor-General’s appointees to exercise such control over the prosecution as the circumstances seem to them to warrant. … I would regard section 69 as an exhaustive statement by the Parliament of the Commonwealth of the means by which its indictments are to be authenticated.”

36. To similar effect were the reasons of D M Campbell J with whom Andrews J agreed.

37. Although not referred to by Mr Dudzinski, s 13 of the Crimes Act enshrines the common law position that every person has an interest and is permitted to put the law in motion in criminal matters. The use of the expression “information” in s 686 merely reflects the historical distinction between the presentment by the grand jury – the indictment – and a proceeding by the Attorney-General of his own motion without the intervention of the grand jury and has come to indicate the distinction between the state initiating criminal proceedings and a private prosecution, see the discussion by McHugh JA in The Queen v Meredith (No 2) (1985) 1 NSWLR 680 at 689. But s 13 does not prevail over s 69 of the Judiciary Act, Gargan v Woodgate; Gargan v Commonwealth Bank [2004] NSWSC 177 per Greg James J; Sydney Catchment Authority v Bailey [2006] NSWLEC 616.

38. By virtue of s 686(2) of the Code the information must be signed by the person on whose behalf the leave is given. It is in direct conflict with s 69 and therefore a private person in the absence of any express authorisation in the Commonwealth legislation may not commence a prosecution against another for a Commonwealth offence. See also observations in R v Loewenthal; ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 and R v Lynch QWN (1904) 17. The above analysis, therefore, disposes of Mr Dudzinski’s application but in case he concludes that he has lost on a “technical” point I shall say something about the substance of his application.

The exercise of the discretion

39. In Fingleton v R [2005] HCA 34; 216 ALR 474, Gleeson CJ, discussing the rationale for the immunity from criminal responsibility of a judicial officer exercising that officer’s judicial functions enshrined legislatively in Queensland in s 30 of the Code, observed that an allegation of judicial misconduct by a dissatisfied litigant often will often be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. Immunity from civil suit or from criminal charge is not, as his Honour explained at 38, for the private advantage of the judges. It is for the protection of judicial independence in the public interest; see also per Kirby J at [176], [188-190]. There is no equivalent provision in the Crimes Act but s 34(2) provides that s 34(1) does not apply “if the judge … has a reasonable excuse”. However, Mr Porter expressly did not rely on any immunity which might be conferred by statute or at common law. His submission is that there is no admissible evidence to support any allegation of wrongdoing by the Judge in the performance of his judicial functions, namely hearing and determining proceedings in which Mr and/or Mrs Dudzinski are parties.

40. The nature of the discretion inherent in s 686 was discussed in Gilbert v Volkers [2004] QSC 436; [2005] 1 Qd R 359 by Holmes J (as her Honour then was). Her Honour considered and applied with modifications the factors identified in Gouldhan v Sharrett [1966] WAR 129. Wolff CJ, with whom the other members of the Court concurred, identified a number of considerations to which a court would have regard on an application for the grant of leave pursuant to the Western Australian analogue of s 686. These were:

“(1)Is the type of offence of such grave character that the determination whether to prosecute should be left to the Attorney-General: e.g. prosecutions for such offences as non-capital homicide, perjury, and so on?

(2)Is the admissible evidence in support of the prosecution inherently credible and sufficient to found a prima facie case?

(3)If there have been no proceedings for committal, is there any good reason why the usual proceedings for committal before justices should not be resorted to?

(4)Has the accused already been committed for trial by a petty sessional court?

(5)Has the Attorney-General entered a nolle prosequi or intimated that he will not file a bill?

(6)Is the administration of justice likely to be impaired by reason of some discreditable motive on the part of the prosecutor?

(7)Is the situation such that if leave is refused a grave injustice will be done to the applicant or somebody standing in close relationship to him?”

41. Of those considerations (1), (2) and (3) are most apt for consideration here. I doubt very much whether there is to be discerned a “discreditable motive” in the prosecutor, that is, Mr Dudzinski, as raised in (6) above by the mere bringing of the application notwithstanding the extreme terms employed by him.

42. Quite clearly a charge that a judge “intentionally and perversely exercises [his power] in [a] matter in which he has a personal interest” is a charge of a very grave character. The personal interest identified by Mr Dudzinski is the desire on the part of the Judge to do some ill to Mr and/or Mrs Dudzinski. The charge strikes at the integrity of the administration of justice in the confidence which all citizens must have in the indifference to the outcome of the decider of disputes between private individuals or individuals and the State or its instrumentalities. It is, therefore, an offence which ought to be left to the Attorney-General, in this case of the Commonwealth, to prosecute. In Volkers, Holmes J observed:

“On a criminal trial, the prosecution should be, and should appear to be, conducted on behalf of society as a whole, without the distracting winds of personal indignation or outrage.”

43. As to the second, there is nothing in the material of an admissible kind that could suggest any impropriety against the Judge. And even the inadmissible opinion/assertions by Mr Dudzinski are not supported by any evidence. The Judge makes no observations in his reasons that would in any way suggest or even hint that he held views about Mr Dudzinski personally or which would influence him impermissibly in being satisfied to the requisite standard of the matters about which he made decisions. As I noted earlier, the Judge proceeded in an orthodox fashion to state the facts, set out the contentions and apply the statute law. His processes of reasoning are transparent. There have been some appeals from his decisions. They were not successful.

44. The third factor concerned the usual requirement for a committal hearing. Whilst many charges should be susceptible to scrutiny by the process of committal, apart from a need to require Mr Dudzinski to lay out his evidence, there is no very compelling reason to regard it as essential in this matter.

45. As to the allegation of bias, on occasions a judge may recuse him or herself if, at an earlier hearing, the judge has formed an adverse view about a party’s creditworthiness. But there were no findings of that kind here. In the “duty” or applications lists of a court many interlocutory matters involving the same proceeding will be heard and determined by the same judge, perhaps with a constantly adverse result for one party. Without more, this will not be a basis for an allegation of perceived bias, let alone actual bias, as alleged by Mr Dudzinski, such as to require the judge not to hear and determine any further applications. That would make managing the daily business of a court very difficult. Mr Dudzinski should be open to the proposition that his arguments have not been accepted because they have been found to have no basis in law or in fact.

46. In conclusion, even if there were no legal impediments to leave being granted to Mr Dudzinski as discussed above, there is no basis for exercising the discretion in his favour.

Conclusion

47. Mr Porter has sought that para 8 of Mr Dudzinski’s affidavit filed 22 January 2008 be struck out pursuant to r 440 of the Uniform Civil Procedure Rules because it contains scandalous material. It does and I accede to that request noting, however, that much of Mr Dudzinski’s material is of that quality. It is, however, couched in such extreme language that even a lay reader would recognise it for the intemperate railing of a person who is angry and disappointed at losing.

48. The orders:

1. Pursuant to Rule 440 of the Uniform Civil Procedure Rules 1999 paragraph 8 of the affidavit of Waldemar Dudzinski filed 22 January 2008 be struck out by the applications list manager.

2. Refuse the application for leave to issue a private prosecution pursuant to s 686 of The Criminal Code 1899.