Dudzinski v Harris [2002] FCA 1273

FEDERAL COURT OF AUSTRALIA

Dudzinski v Harris [2002] FCA 1273 WALDEMAR DUDZINSKI AND ANNA DUDZINSKI v BRIAN HARRIS, STEVE ULHMANN, S M ROSSINGTON AND DAVID ROSALKY Q 61 OF 2001 DOWSETT J 30 SEPTEMBER 2002 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q61 OF 2001

BETWEEN: WALDEMAR DUDZINSKI

FIRST APPLICANT

ANNA DUDZINSKI

SECOND APPLICANT

AND: BRIAN HARRIS

FIRST RESPONDENT

STEVE ULHMANN

SECOND RESPONDENT

S M ROSSINGTON

THIRD RESPONDENT

DAVID ROSALKY

FOURTH RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 30 SEPTEMBER 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. All claims by the first applicant in these proceedings be dismissed; 2. The first applicant pay the respondent's costs of the proceedings insofar as they are attributable to his claims, including reserved costs; 3. The matter, as between the second applicant and the respondents, be adjourned to 18 March 2003; and 4. Costs are otherwise reserved.

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 Q61 OF 2001

BETWEEN: WALDEMAR DUDZINSKI

FIRST APPLICANT

ANNA DUDZINSKI

SECOND APPLICANT

AND: BRIAN HARRIS

FIRST RESPONDENT

STEVE ULHMANN

SECOND RESPONDENT

S M ROSSINGTON

THIRD RESPONDENT

DAVID ROSALKY

FOURTH RESPONDENT

JUDGE: DOWSETT J

DATE: 30 SEPTEMBER 2002

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 In this matter, the first applicant seeks prerogative relief in connection with a decision by an officer of the Department under the Social Security Act 1991 (Cth) (the "Act") declining an advance sought by the first application in the amount of $500 against his claimed entitlement to Austudy Allowance. 2 In 1995 the first applicant applied for Newstart Allowance. It seems that he received payment for the period from 12 April 1995 until 13 June 1995 in the amount of $304.85. The Department subsequently determined that he was not entitled to that payment. This decision is presently the subject of dispute. In 2001 the applicant applied for the Austudy advance to which I have referred. On 20 March 2001, he was advised that his application for an advance had been refused. The reason appears to be contained in the following paragraph: After careful consideration, your claim for Advance Payment of Austudy has been rejected, because you have an outstanding debt to the Commonwealth. Despite withholdings being suspended while the debt is under appeal, it is still considered a debt owed to the Commonwealth, and therefore, will disqualify you from eligibility for an Advance Payment. 3 The debt in question was, it seems, the refund claimed in connection with the earlier Newstart application. Any obligation to repay this debt was the subject of an undertaking given by the Secretary of the Department of Social Security to Spender J and recorded in an order dated 18 April 1997 as follows: Upon the undertaking of the respondent the Secretary Department of Social Security that he will suspend all recovery action in relation to the debt the subject of these proceedings until proceedings QG 150 of 1996 shall be disposed of ... 4 The provisions relating to advance payments are contained in s 1061A of the Act. Relevantly, they provide that a person will be qualified for an advance in certain circumstances, but disqualified if: the person owes a debt to the Commonwealth (whether arising under this Act or not) that is recoverable under Part 5.2 by means of deductions from the person's social security payment. 5 Sections 1223(1) and s 1230C demonstrate that the debt in question would normally be recoverable pursuant to Part 5.2. However it seems to me that the undertaking given to Spender J led to the amount ceasing to be recoverable although it remains owing. The respondent has argued that the amount continues to be recoverable, notwithstanding the undertaking. As a matter of commonsense and the ordinary meaning of words, I do not agree. I am therefore inclined to the view that the decision-maker was in error in declining to allow the advance upon the basis of the existing debt. However two other matters have to be taken into account. Firstly, the first applicant had other avenues open to him at the time in order to obtain relief. He was advised of them in the letter of 20 March 2001, which is exhibit 5. He chose not to pursue those avenues. 6 More significantly, any advance was, in any event, only of amounts otherwise to fall due to him. If he was subsequently shown to be entitled to Austudy allowance then presumably, he has received the relevant amounts. If not, then he was not entitled to the amount of the advance in any event. If he claims that the ultimate decision as to his Austudy entitlement was erroneous, then the validity of that decision could have been challenged in appropriate proceedings. It is difficult to see how any useful purpose will be now served by determining whether or not the first applicant was entitled to an advance upon his Austudy allowance in 2001. 7 In any event the relief which is sought may be inappropriate to a decision of this kind. The application seeks an order of prohibition, but even treating the application as being for other prerogative or discretionary relief, it is difficult to see that it would be appropriate to exercise the discretion in favour of granting such relief in the present circumstances. In my view, the application for relief, insofar as it concerns the decision of 20 March 2001, should be dismissed. 8 There is now no claim by Mr Dudzinski extant in these proceedings. It would seem to follow that he should be dismissed from them. He has said that he wants to bring some other claim or alternatively, to appeal, and that I should grant him a stay. I see no justification for that course. He has also indicated that he has some interest in the relief sought by his wife. I see no valid basis for that assertion. I therefore dismiss all claims by Mr Dudzinski in these proceedings. The proceedings will continue as between Mrs Dudzinski and the respondents. 9 I see no reason why costs should not follow the event. I order that the first applicant pay the respondent's costs of the proceedings insofar as they are attributable to his claims, including reserved costs. Mrs Dudzinski has indicated to me that she had thought that her husband would be allowed to conduct the proceedings on her behalf. She finds herself unable to prosecute her claims today. On previous occasions on which they have appeared in this matter, I have allowed Mr Dudzinski to appear on her behalf. I had it in mind only that I was permitting him to appear on the occasions in question. However I may not have distinguished sufficiently clearly at the time, and it is possible that Mrs Dudzinski may have been led into believing that I would allow Mr Dudzinski to appear for her today. In those circumstances, and although I have some reservations about it, I have agreed to adjourn the proceedings as between her and the respondents until 18 March 2003. The matter will be adjourned accordingly, with costs reserved. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.