Attorney-General for the State of Victoria v Bahonko
[2011] VSC 352
•16 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
SCI 2010 4919
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| V | |
| STANISLAWA BAHONKO | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2011 | |
DATE OF JUDGMENT: | 16 September 2011 | |
CASE MAY BE CITED AS: | The Attorney-General for the State of Victoria v Bahonko | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 352 | |
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PRACTICE AND PROCEDURE – Vexatious litigant – Requirements – Whether defendant habitually and persistently instituted vexatious legal proceedings – Exercise of discretion – Supreme Court Act 1986, s 21.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Masel | Victorian Government Solicitor’s Office |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction
Since June 2004 the defendant, Stanislawa Bahonko, has initiated a multiplicity of proceedings in this State. At last count, she had commenced 26 proceedings, including appeals, in various Victorian courts and tribunals, 15 in the Federal Court and 16 in the High Court.
Over recent years, most, if not all, of the claims have included a raft of florid and highly defamatory allegations against individuals, lawyers, police, judges, Members of Parliament and Ministers of the Crown. These allegations have been made in Court documents and in open Court. A number of the claims can, I think, be properly characterised as vexatious; moreover Ms Bahonko’s conduct in instituting such proceedings is correctly identified as habitual, persistent and without reasonable cause.
The plaintiff, the Attorney-General, in September of last year, issued an originating motion seeking to have Ms Bahonko declared a vexatious litigant pursuant to s 21 of the Supreme Court Act1986 (Vic).
Having read in detail the material provided by the Attorney-General relevant to Ms Bahonko’s proceedings, I am satisfied that the elements for making this order have been satisfied and that I should exercise my discretion and that an order should be made. My reasons for doing so now follow.
This application
The Attorney-General’s motion was filed 8 September 2010.
There have been several interlocutory applications, and appeals, by Ms Bahonko prior to the matter coming on for trial. These are set out at [10]-[22] of my reasons in my earlier ruling in June of this year.[1]
[1]The Attorney-General for the State of Victoria v Bahonko [2011] VSC 244.
The proceeding was originally scheduled for trial on Monday 6 June 2011.
On Thursday 2 June 2011, Ms Bahonko filed a summons seeking adjournment of the proceedings on the basis of her ill health. I granted an adjournment to Wednesday 27 July 2011, but made orders restraining her from commencing or continuing legal proceedings until the determination of this application.[2]
[2]Ibid.
Ms Bahonko’s application for leave to appeal against these orders was heard by the Court of Appeal on Friday 22 July 2011. The Court of Appeal dismissed the appeal but varied the terms of the injunction enabling Ms Bahonko to prosecute her appeal against the orders of Judge Misso, fixed for 1 August 2011.[3]
[3]Bahonko v Attorney-General for the State of Victoria [2011] VSCA 208.
At 4.13pm on Tuesday 26 July, my associate received by email communication from Ms Bahonko raising what she contended was a constitutional matter pursuant to s 78(b) of the Judiciary Act1903 (Cth). A copy of the s 78(b) notice was not attached to the email, but at the commencement of the hearing the following day counsel for the Attorney-General provided a copy.
In her email, Ms Bahonko demanded that the hearing of this application be “postponed” pending receipt of advice from the relevant Attorney-Generals who had purportedly been provided with the s 78(b) notice.
After hearing submissions from counsel for the Attorney-General, I refused the application to adjourn the hearing. I did so for two reasons:
(a)The notice does not disclose any proper basis for asserting a constitutional issue. It is said that two provisions of the Constitution (s 75 and s 117) have been breached. The assertions contained in the notice do not support any arguable breach of either section. In any event, the allegations are just that: allegations of a florid and bizarre nature, none of which demonstrate any valid suggestion that matters of constitutional significance are raised;[4] and
(b)this application was made immediately prior to the commencement of the trial (as with the previous adjournment application). It is, in my view, a device to avoid the determination of the Attorney General’s application.
[4]See Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292, 297; Re Finlayson, ex parte Finlayson (1997) 72 ALJR 73; Green v Jones [1979] 2 NSWLR 812.
Having determined to reject Ms Bahonko’s application for adjournment of the hearing, my associate contacted Ms Bahonko shortly after 11.00am on Wednesday 27 July by both telephone and email advising her that her application had been refused and that the hearing would recommence at 2.15pm.
At 12.26pm, the following email communication was received addressed to my associate:
Attach are 2 Affidavits, one is Aff, of Service of the Notice of the Constitutional matter, second Aff, of my unability to appear before rapist and abuser. Those were also faxed to you on 96708408 at 12.15pm now.
Be informed & informed J. Forrest that he & you will be charged with criminal responsibility for outlaw conduct on the public premises, abuse of office, tortures & crimes against humanity.
Be informed that direct conflict of interest of J.Forrest is known as his direct association with WorkCover & Insurence (sic) Industry, his conduct on behalf of his Irish primary criminal of assault to kill at work on 6 May 2004 & his demonstrated criminal and corrupt conduct on 6 June 2010 including destruction of Evidence.
Under Criminal procedures I am obligated to give a Notice of intended criminal proceedings against J.Forrest & application for a Grand-Jury.
Stanislawa Bahonko
The email was accompanied by an affirmed affidavit of Ms Bahonko[5] in the following terms:
1.I am psychologically, emotionally & mentally unable to appear before J.Forrest on 27 July 2011.
2.On 6 July 2011 when ill, a premeditated abuse of me has been committed by J.Forrest & other present in the Court & the Attorney General Robert Clark in the Courtroom which I Experienced as “a psychological gang-rape”, violence and sadism & degrading, inhumane treatment of me as I am not a person at law.
3.Conduct of J.Forrest, the Attorney Robert Clark his predecessor Hulls & others and atrocious and wilful to break a person down & to break a person spirit.
4.I am not able to subject myself to further sadism and abuse & my will is not to Subject myself to further sadism & abuse as I have been abused for the last 7 Years and subjected to Genocide & day to day violence.
In addition, another affidavit was attached purporting to be an affidavit of service of the notice of a constitutional matter which was said to have been delivered to the Supreme Court registry and to nine Attorney-Generals.
[5]A copy affidavit apparently sworn before a Justice of the Peace was received at 12.34pm on 27 July 2011.
Ms Bahonko did not attend the hearing which resumed at 2.15pm. I decided to hear the matter and determine the Attorney-General’s application. For reasons I have set out I regarded the s 78(b) notice as an artifice designed to delay or frustrate the hearing of this application. The assertion that she was psychologically, emotionally and mentally unable to appear was not supported by any medical evidence and is to be viewed in light of Ms Bahonko’s appearance in the Court of Appeal on 22 July 2011 (5 days prior to this hearing).
I do, however, think it unfortunate that Ms Bahonko was unable to attend the hearing. But, as was explained by Ashley J in Attorney-General for the State of Victoria v Horvath Senior,[6] the critical analysis is that of material obtained from the Court files, not the views of a litigant as to the rights or wrongs of the relevant decisions.
[6][2001] VSC 269, [28].
I should add the following. Section 21 of the Supreme Court Act 1986 requires the Court to “hear” the alleged vexatious litigant or to give that person “an opportunity to be heard”.
The question of what constitutes an opportunity to be heard needs to be looked at pragmatically. Ms Bahonko has, on a number of occasions over the past months, appeared in courts in this State. As far as I am aware, her last appearance prior to this hearing was before the Court of Appeal on 22 July 2011[7] in relation to the interlocutory orders I made on 6 June 2011.
[7]Bahonko v Attorney-General for the State of Victoria [2011] VSCA 208.
In my view, Ms Bahonko has been afforded an opportunity to be heard. The original hearing date, of which she had ample notice, was vacated to enable her to be restored to good health. Her last minute application to “postpone” this hearing was rejected and she was given a further opportunity to attend Court to be heard, of which she did not avail herself.
I am not satisfied that she was unable to attend the hearing. More importantly, I am satisfied that Ms Bahonko has been given the opportunity to be heard.
Finally I should mention a further hearing on 26 August 2011. I reconvened the Court on that day as I was concerned that Ms Bahonko may, by virtue of the order I made on 6 June 2011 be precluded from continuing appeals in this Court instituted by her prior to my granting the injunction sought by the Attorney-General. Ms Bahonko did not appear at that application. I varied my order so as to permit Ms Bahonko to continue to prosecute any appeal which was pending in the Court of Appeal.
Proceedings instituted by Ms Bahonko in Victorian Courts and Tribunals
June 2004: VCAT – B 57 of 2004, Supreme Court – 7752 of 2004
On 4 June 2004, Ms Bahonko filed an application at the Victorian Civil and Administrative Tribunal[8] against the Nurses Board of Victoria[9] seeking review of the Board’s decision to suspend Ms Bahonko’s registration as a nurse. The proceeding was struck out by Judge Dove on 19 August 2004[10] on the grounds that there had not been a delay in the investigation into Ms Bahonko’s conduct, which delay might be characterised as inordinate or unreasonable.
[8]‘VCAT’.
[9]‘Nurses Board’.
[10]Bahonko v Nurses Board of Victoria [2004] VCAT 1663; Exhibit EB-1 to the affidavit of Mr Stephen Lee sworn 8 September 2010 – references to “EB” subsequently relate to exhibits to this affidavit.
On 25 August 2004, Ms Bahonko filed an originating motion against the Nurses Board of Victoria[11] and a summons on originating motion of the same date[12] seeking ‘declaration, injunction and damages’.
[11][EB-20].
[12][EB-21].
Ms Bahonko’s registration as a nurse had been suspended after a complaint was lodged with the Nurses Board on 20 May 2004. On 24 May 2004, the Board decided to initiate an investigation into Ms Bahonko’s professional conduct under s 22 of the Nurses Act 1993. The Board also suspended Ms Bahonko’s registration pending the outcome of the investigation. Following the investigation, the Board decided to proceed with a formal hearing in relation to Ms Bahonko’s professional conduct which was scheduled for 27 September 2004.
On 6 September 2004, Master Evans granted leave to Ms Bahonko to commence the proceeding by originating motion and referred the matter for hearing that day;[13] Cummins J dismissed the proceeding with no order as to costs[14] and noted in his reasons for judgement[15] that the formal hearing of the Board to be held on 27 September 2004 would provide Ms Bahonko with the opportunity to ventilate her complaints. His Honour said:
[13][EB-22].
[14][EB-23].
[15][EB-24].
The originating motion is itself is both premature and misconceived. Like the summons also filed on 25 August 2004, the orders sought by the motion are expressed thus:
1. Declaration
2. Injunction
3. Damages
So far as the motion seeks like relief as the summons, for the reasons I have stated in relation to the summons, the motion is misconceived and premature. So far as the motion seeks other relief it is misconceived and premature in substance and is deficient in form.
On 28 October 2004, Ms Bahonko filed both a Notice of Appeal against the orders of Cummins J, and a summons[16] by which she sought leave to appeal those orders.
[16][EB-35].
The application for leave was refused by Charles and Phillips JJA on 19 November 2004.[17] In his judgment, Charles JA, with Phillips JA agreeing, stated:
This is a curious application which has been brought for leave to appeal against orders made in the Trial Division on 6 September 2004.
…
In my opinion the complaints made by [Ms Bahonko] this morning are largely misconceived. Certainly many of them are misdirected.
I see no reason to suppose that his Honour [Judge Cummins] fell into error in refusing to grant urgent relief to [Ms Bahonko] in relation to the procedures of the [Nurses]Board which were then in progress.
[17][EB-36].
January 2005: VCAT – G54 of 2005
On 27 January 2005, Ms Bahonko filed an application for review at VCAT in relation to a decision of the Victims of Crime Assistance Tribunal.[18] The proceeding was an appeal against the Tribunal’s decision to refuse Ms Bahonko’s claim for compensation in which she had alleged that members of Victorian Police and her former employers had injured her. The application was dismissed by Senior Member Megay on 6 May 2005.[19]
[18][EB-3].
[19][EB-4].
February 2006: VCAT – G43 of 2006
On 10 February 2006, Ms Bahonko filed a freedom of information application against Lakosta Child Care Centre and Kindergarten. The application was struck out for lack of jurisdiction because the child care centre was not subject to the Freedom of Information Act 1982 as it was not a ‘prescribed authority.’[20]
July 2006: County Court – CI – 06 – 02573; associated proceeding in VCAT G4960 of 2007; Court of Appeal – 3753 of 2006; 3809 of 2006 and 3832 of 2008.
[20][EB-5].
On 11 July 2006, Ms Bahonko filed a writ in the WorkCover Division of the County Court against her former employers, the Moorfields Community, the Uniting Church in Australia and Bodalla Aged Care Services seeking compensation arising from the termination of her employment.[21]
[21][EB-7].
In the Statement of Claim, Ms Bahonko alleged that during the course of her employment she was subjected to:
Ongoing harassment, bullying, exploitation, excessive surveillance, emotional and psychological abuses, intimidation, brain-wish (sic), stalking, various set-up(sic), attempts to discredit as a nurse, attempts to discriminate, solicitation by the Management of false complaints from staff and residents, spreading rumours, solicitation of persona information and political, ideological, religious opinions from [Ms Bahonko] and after [Ms Bahonko] declined to be corrupted to unlawful immoral practices or to be used instrumentally to exterminate sick elderly residents and to enact Uniting Church’s ideology. Defendants launched unprecedented criminal campaign against [Ms Bahonko] and made various imputations of mental, psychological, social and physical disabilities upon [Ms Bahonko].
On the same day that the writ was issued Ms Bahonko also issued a summons seeking “urgent relief”:
"1. Urgent monetary relief in relation to WorkCover claims for weekly payments and lump sum compensations.
2. Immediate payment of all overdue weekly payments over the last two years".
The application came on before Judge Coish on 25 July 2006, and his Honour adjourned the hearing to 15 August. On 15 August, after hearing argument, the Judge dismissed the application.
Ms Bahonko then sought leave to appeal his Honour’s decision (both as to the adjournment and the dismissal).
The Court of Appeal determined Ms Bahonko’s application for leave to appeal on 29 September 2006.[22] The application was dismissed, with Maxwell P saying as follows:
Of the two considerations I have referred to, it is the first which is really significant. There was no occasion for Judge Coish to have a hearing into whether urgent payments should be ordered, since the Court had no power to require the Authority to make any such payments since entitlement had been denied. His Honour was entirely correct to decline to conduct the hearing which Miss Bahonko requested.
…
For the reasons I have given, there is no reason to think that what his Honour did was wrong. On the contrary, in my opinion, his Honour was clearly right and had no other course open to him than the course which he took.
In an affidavit filed today, Miss Bahonko makes very serious allegations against the judge, including that he was biased and that he was a moral pervert. It is important that I say very clearly that I reject out of hand those allegations against him. There is nothing in the material that would in the remotest way justify any such allegation. Indeed, it is important that I assure Miss Bahonko that the judge was doing his duty according to law. The fact that he made a decision which she is unhappy with is not a basis for regarding him as biased against her or as in any other way acting improperly.
Two other specific points were made in submissions by Miss Bahonko. One was that there has been perjury by the solicitor for the respondents. I simply note that that allegation is made. It is not necessary, nor appropriate, for any investigation of that allegation. Suffice it to say that I have seen nothing in the material to suggest that there has been perjury.[23]
[22]Bahonko v Moorfields Community [2006] VSCA 206.
[23]Ibid [17], [21]-[23].
The proceeding then returned to the County Court and was listed for hearing on 25 October 2006. Prior to the hearing, on 10 October 2006, Ms Bahonko issued summons seeking a variety of orders:
(a) the joinder of certain entities to the proceeding;
(b)order that she be exempted from the operation of the County Court Rules in relation to service of subpoenas and other court documents;
(c)an order that the trial of the proceeding be scheduled to no more often than fortnightly;
(d) an order that a serious injury certificate be issued to the plaintiff;
(e)order that in lieu of a medical appointment arranged by the solicitors for the defendants she be examined by a specialist independent of them, chosen by her but paid for by the Authority; and
(f) that certain causes of action be added to the proceeding.
The summons was discussed and subpoenas directed to the Premier, Mr Bracks, the Minister for Health, Miss Pike, and the Minister for Police, Mr Holding were struck out.
On 3 November 2006, Ms Bahonko sought leave to appeal these orders and also of the trial judge refusing to recuse himself from the trial.
Maxwell P (with whom Buchanan JA agreed)[24] dismissed the application saying:
I deal first with the complaint made about the Judge, which Miss Bahonko put at the head of her comprehensive oral submissions to the Court. Her complaint was that the judge had perpetrated violence and psychological abuse against her. When asked to identify any passage in the transcript which disclosed violence or abuse of that kind, Miss Bahonko did not identify any particular passage, saying that the transcript was not an adequate record. In particular, she said, it did not record the manner of speaking or the way the judge looked at her. She said that she was unhappy with both his manner and the way he spoke and looked at her. When further asked by me wherein lay the verbal violence and the psychological abuse, Miss Bahonko said it was because the judge refused her everything she was asking for. She said it was well-known in psychology that to deny everything that somebody is seeking is a form of psychological abuse.
…
It was, in my respectful opinion, undoubtedly correct to strike out the subpoenas to the Ministers. As I sought to point out to Miss Bahonko in the course of argument, none of these Ministers has anything whatsoever to do with the matters in issue in her proceeding. Unfortunately, Miss Bahonko has the mistaken perception, which is reflected in her written material and in her oral submissions, that anyone who is in any way connected – by any formal line of authority – with any step in relation to what has occurred to her is somehow responsible for what has occurred.
…
The judge was, in my opinion, clearly correct to reject that application for joinder. He noted that the WorkCover Authority was already represented in the proceeding by counsel for the employers and will, of course, be bound by the judgment in the case. The fact that Minister Pike worked for the Uniting Church before entering Parliament was relied on by Miss Bahonko to show that she was somehow responsible for what was done by one of the employers, which is associated with the Church. That is an utterly erroneous view. Again, it reflects a misconception that the most tenuous of connections can somehow attract legal liability for what is, first and last, a dispute about workers compensation.
There are repeated references in the material this time, as there were last time, to the fact that those who reject Miss Bahonko’s applications or requests for assistance somehow support a system of slavery. This is a reference back to the circumstances of Miss Bahonko’s employment. Miss Bahonko made that criticism of this Court on the last occasion, when we rejected her application for leave. She said it about the Premier in paragraph 14 of her affidavit of 10 October. This again is a complete figment of her imagination. No one except the judge will be in the position to decide whether her allegations about “slavery” are justified or not, and we refrain from expressing any view on it. Our only concern is to ensure that Miss Bahonko gets a trial in accordance with law.[25]
[24]Maxwell P and Buchanan JA, Reasons 17 November 2006.
[25]Ibid [10], [15], [23] and [24].
The trial commenced on 6 December 2006. The trial judge set aside a further raft of subpoenas issued by Ms Bahonko but then the hearing took an unusual twist. His Honour ruled as followed:
Having regard to the provisions of s 66 of the Guardianship and Administration Act and the recent opinion of Dr Entwhistle (sic), I am satisfied that the appropriate course is to refer this matter to the VCAT pursuant to those provisions.
I should perhaps just indicate also that the court has been anxious to endeavour to expedite this matter to ensure the plaintiff had an opportunity to put her case. She has appealed from a number of rulings that I have made and I have been acutely aware of the comments made by the Court of Appeal in relation to the need to deal with this matter as expeditiously as possible. However, in circumstances that I now find myself in, namely, having such a strong opinion in relation to the plaintiff's psychiatric state provided by Dr Entwhistle (sic) a matter of days before this hearing, I am satisfied the appropriate course is not to hear this matter on its merits but to refer it to the VCAT pursuant to s 66.
The judge then made orders referring the issue of an appointment to VCAT and that the proceeding be struck out with a right of reinstatement.
Ms Bahonko then sought to appeal the orders setting aside the subpoenas and referring to VCAT the question of whether a guardian or administrator ought be appointed.
It is not necessary to set out all the interlocutory steps which occurred in the course of the appeal which were described by Nettle JA as being “a small part of a labyrinth of proceedings”.[26]
[26]Bahonko v Moorfields Community, Bodalla Aged Care Services, Uniting Church of Australia [2008] VSCA 6 [2].
The end result was that the appeal against the trial judge’s order setting aside the subpoenas was dismissed; Ms Bahonko's appeal against the reference to VCAT was upheld on the basis of a denial of procedural fairness and the proceeding was remitted to the County Court for hearing before for another judge.[27]
[27]Ibid [37].
Eventually, the trial was heard before his Honour Judge Misso over 12 days between 23 June 2008 and 8 July 2008. Ms Bahonko represented herself. His Honour dismissed the claim and awarded costs against Ms Bahonko.[28]
[28]Bahonko v Moorfields Community & Ors [2008] VCC 829.
The appeal against Judge Misso’s decision was heard on 2 August 2011. The Court of Appeal on 1 September 2011 upheld Ms Bahonko’s appeal on the basis of apprehended bias and the judgment was set aside and the proceeding is to be re-heard by another judge.[29]
September 2008: Magistrates’ Court Proceeding U01253629; Supreme Court proceeding 8744 of 2008; Court of Appeal 3906 of 2008
[29][2011] VSCA 259.
On 3 August 2006, Casey City Council entered a default judgment against Ms Bahonko for $1,286.82 for arrear of rates, $27.15 interest and costs of $529.40.[30]
[30]Bahonko v Moorfields Community & Ors [2008] VSC 571 [1].
Pursuant to s 110 of the Magistrates’ Court Act1989 (Vic) Ms Bahonko applied for a re-hearing.
On 17 September 2008, his Honour Magistrate Lauritsen made an order in favour of Casey City Council, refusing Ms Bahonko’s application for a re-hearing of an order made in relation to rate arrears.
On 3 October 2008, Ms Bahonko filed a Notice of Appeal to the Supreme Court which included the following allegations:
1.Contravention of Human Rights Charter;
3.Contravention of Constitution section 75 and 112;
4.Contravention of International Human Rights Treaties ratified/signed by Australia;
5.Procedural unfairness and breach of natural justice rules;
6.Being part of a series of WorkCover pre-trial assaults and intimidation of [Ms Bahonko];
7.Magistrate unduly restricted [Ms Bahonko’s] freedom in running her case, prosecuting subpoenas, giving evidence, cross-examining and submitting thus oppression of [Ms Bahonko] in the Court;
8.Obvious bias and partiality of Magistrate;
9.Unfitness of the Magistrate to make judgments in this matter;
23.The Magistrate put his private, personal interest above impartiality of decisions;
24.Irrational, baseless reasoning of the Magistrate;
25.The Magistrate disallowed correction of errors and facts when providing orders;
30.Contravention of the principles of law and statutory acts by the Magistrate;
31.Orders contradict facts and evidence;
32.Attempts of physical violence against S.Bahonko by the Magistrate Lauritsen and threats of assault;
33.Misconduct of the Magistrate;
34.Wilful mental tortures of the appellant by the Magistrate and wilful causation of emotional upset;
32.Attempts of physical violence against [Ms] Bahonko by the Magistrate Lauritsen and threats of assault;
37.Corruption and frauds [by] Defendants in this matter and administration of justice;
40.Failure of the Magistrate to acknowledge and deal with demonstrated perjuries of the [Defendant’s] witness;
41.Unlawful and criminal conducts of Defendant’s legal team; and
44.Conspiracy to defeat justice.
The notice of appeal also listed 53 questions of law, including the following:
31.Whether by lack of an Independent Judiciary System and Judiciary System at the Service of [the Dominant powers Fascist Ideology,] Australia breaches International Human Rights Legislation?
52.Whether referral of Ms Bahonko, an intellectually [intact] person with a Workplace [injury] affecting mood (reactive depression) and emotions for an appointment of a Guardian and Administrator on the VGS’s instigation is a strong evidence of a political corruption and a rise of Fascism in the Government and the Government’s paranoia seeing Ms Bahonko, a fragile woman as a threat to their corrupt fascists system?
53.Does it demonstrate that intellectuals are perceived as threats to [the Australian Government] as intellectuals can see its true face and alert the public of the rise of fascism?
Ms Bahonko filed an amended notice of appeal on 21 October 2008[31] which set out nine new questions of law, in addition to the original 53 contained in the notice of appeal filed on 1 October 2008.
[31][EB-26].
On 29 October 2008, Master Daly ordered that the further hearing of Ms Bahonko’s summons filed on 7 October 2008 be adjourned to 19 November 2008 and Ms Bahonko’s oral application that her interlocutory applications be referred to a judge be refused.[32]
[32][EB-27].
On 18 November 2008, Pagone J dismissed Ms Bahonko’s appeal against Master Daly’s orders.[33]
[33][EB-29].
On 19 November 2008, Daly AsJ dismissed Ms Bahonko’s notice of appeal dated 1 October 2008 and the amended notice of appeal of 21 October 2008 on the basis that the appeal was from an interlocutory, rather than a final order and, in any event, the notices of appeal failed to disclose a question of law.[34] Daly AsJ also ordered that Ms Bahonko pay Casey City Council’s costs of and incidental to the appeal on a solicitor-client basis.
[34][EB-30].
Ms Bahonko’s appeal against the orders of Master Daly was heard by Williams J on 9 December 2008. In her judgment delivered on 18 December 2008[35], her Honour dismissed Ms Bahonko’s appeal stating:
[Ms]Bahonko made wide ranging submissions to the court in support of her appeal. She referred to many areas of law. None of her submissions persuaded me that she was entitled to appeal from the Magistrate’s decision under s 109 of the [Magistrates’ Court Act 1989]. Even if she were permitted to challenge the order refusing the application for a rehearing or the order for costs made against her in the Magistrates’ Court, she failed to identify a question of law upon which she brought an appeal in either case.[36]
[35][EB-31].
[36]Bahonko v Casey City Council [2008] VSC 571 [14].
Ms Bahonko appealed the orders of Pagone J and Williams J.[37] The notice of appeal included 29 grounds for appeal and seven questions of law and sought orders that.
1.All orders given in the Magistrate[s’] Court of Vic[toria] in this matter to time and orders given in the Supreme Court of Vic[toria] are set aside;
2.Casey City Council pays [Ms] Bahonko damages of $100,000;
3.This appeal is joined with a WorkCover appeal and Grand Jury application under the Crime Act Vic [s] 354 and heard by Jury.
[37][EB-73].
On 6 March 2009, Kyrou J refused an oral application by Ms Bahonko for an order to overturn the refusal of the Court of Appeal Registry to issue a subpoena to produce documents, which subpoena was addressed to Adam Somyurek MP and which documents Ms Bahonko claimed were necessary to assist her in her application for leave to appeal against the decisions of Pagone and Williams JJ. In his reasons for judgement delivered on 10 March 2009,[38] Kyrou J said:
As the decisions of Pagone J and Williams J dealt with specific legal issues which do not turn on evidence of what occurred before the Magistrate, the documents listed in the proposed subpoena are not relevant to any issue in the application for leave to appeal. The proposed subpoena is therefore an abuse of process. Accordingly, Ms Bahonko’s oral application is refused.
[38][EB-74].
On 8 May 2009, Nettle JA and Coghlan AJA refused leave to Ms Bahonko to appeal the orders of Pagone J and Williams J.
February 2009: Court of Appeal 3710 of 2009
On 3 February 2009, Ms Bahonko filed a summons in the Court of Appeal[39] against the State of Victoria, the Attorney-General of Victoria and the Honourable Associate Justice Lansdowne, seeking their attendance at the hearing of Ms Bahonko’s application for the following orders:
1.[Ms Bahonko’s] Grand Jury applications of 2006 were on foot since pronounced as such in a public hearing by the President of the Court of Appeal, Hon Justice Maxwell in November 2006;
2.Directions of Master Lansdowne of 23 December 2008 are set aside; and
3.It is directed that [the] Court of Appeal Registry stamps and seals the original Grand-Jury applications of 2006 and forward those to the Full Court for urgent consideration.
[39][EB-80].
On 8 May 2009, the summons was dismissed by Nettle JA and Coghlan AJA.[40]
[40][EB-81].
October 2009: VCAT G 889 of 2009
On 28 October 2009, Ms Bahonko filed an application for review at VCAT of a decision she described as “refusal of FOI”. Deputy President McNamara held a directions hearing on 19 February 2010. He noted that Ms Bahonko had lengthy conflicts with the City of Casey and the dispute concerning payment of the arrears of rates.
The hearing on 19 February 2010 was to determine whether VCAT had jurisdiction to deal with Ms Bahonko’s application for review. The Deputy President described Ms Bahonko’s submissions in the following terms:
Ms Bahonko opened by making extensive attacks on the Tribunal member who gave the directions in December accusing the member of being corrupt. She said that since the directions were given by a corrupt member they were legally ineffective…[41]
[41]Bahonko v City of Casey (General) (2010) VCAT 241 [8].
The Deputy President did, however, conclude that Ms Bahonko had made a valid request under the Act but that she had not first sought an internal review, and therefore VCAT had no jurisdiction to entertain the application.
March 2011: Magistrates’ Court – B10794292 and AP-11-0733
On 25 March 2011, Ms Bahonko filed an Application and Summons for an Intervention Order in the Magistrates’ Court of Victoria against Jose Bravo, who is said to be a security guard at Hampton Park Shopping Centre.
On 13 April 2011, the Magistrates’ Court refused to make an intervention order.
On 15 April 2011, Ms Bahonko filed a notice of appeal to the County Court.
April 2011: Magistrates’ Court – B10980529 and AP-11-0813
On 14 April 2011, Ms Bahonko filed an Application and Summons for an Intervention Order in the Magistrates’ Court of Victoria against “Unknown, Unknown”, who also is said to be a security guard at Hampton Park Shopping Centre.
On 19 April 2011, the Magistrates’ Court struck out Ms Bahonko’s application for an intervention order. It appears that Ms Bahonko did not appear at Court but sent a fax to the Registrar requesting an adjournment on ill-health grounds.
On 2 May 2011, Ms Bahonko filed a notice of appeal to the County Court.
April 2011: Magistrates’ Court – B11141978
On 21 April 2011, Ms Bahonko filed a Charge-Sheet and Summons for “assaults (multiple) to cause death”, “unlawful imprisonment and threat of a long-term imprisonment” and “abetting [sic] organised crime to case victim death” in the Magistrates’ Court of Victoria against Tony Tancredi. The matter was listed for 9 May 2011.
On 2 May 2011, the Office of Public Prosecutions (OPP) wrote to the Magistrates’ Court and to Ms Bahonko to request further time to consider whether to exercise its power to terminate the privately-brought prosecution if it was frivolous, vexatious, insufficiently supported by evidence or against the public interest.
Other proceedings – High Court
Ms Bahonko has, as at 31 March 2011, filed 16 applications in the High Court seeking special leave to appeal:
(a) M65/2005
Stanislawa Bahonko
v
Moorfields Community (an Agency of Uniting Church of Australia Property Trust of Victoria) & Bodalla Aged Care Services.
Filed on 17/5/2005
The application for Special Leave to Appeal dismissed on 20/10/2005
(b) M72/2005
Stanislawa Bahonko
v
Nurses Board of Victoria
Filed on 28/6/2005
The application for Special Leave to Appeal dismissed on 20/10/2005
(c) M137/2006
Stanislawa Bahonko
v
Moorfields Community, Bodalla Aged Care Services & United Church of Australia
Filed on 26/10/2006
The application for Special Leave to Appeal dismissed on 16/06/2007
(d) M151/2006
Stanislawa Bahonko
v
Royal Melbourne Institute of Technology, Minister for Education of the State of Victoria & Victorian Institute of Teaching
Filed on 07/12/2006
The application for Special Leave to Appeal dismissed on 06/09/2007
(e) M152/2006
Stanislawa Bahonko
v
Moorfields Community, Bodalla Aged Care Services & United Church of Australia
Filed on 07/12/2006
The application for Special Leave to Appeal dismissed on 24/04/2008
(f) M15/2007
Stanislawa Bahonko
v
Nurses Board of Victoria & Minister for Health/Bronwyn Pike
Filed on 21/02/2008
The application for Special Leave to Appeal dismissed on15/11/2007
(g) M31/2007
Stanislawa Bahonko
v
Kosta Sterjov, Susanna Sterjov, Lisa Miller & La Kosta Child Care Centre & Kindergarten Pty Ltd
Filed on 24/3/2007
The application for Special Leave to Appeal dismissed on 15/11/2007
(h) M97/2007
In the matter of an application by Stanislawa Bahonko for leave to issue a proceeding (no respondents)
Filed on 11/09/2007
The application for leave to issue a proceeding refused and the application dismissed on 04/10/2007
(i) M22/2008
Stanislawa Bahonko
v
The Commonwealth
Filed on 27/03/2008
The application for Special Leave to Appeal dismissed on 20/06/2008
(j) M23/2008
Stanislawa Bahonko
v
Kosta Sterjov, Susanna Sterjov, Lisa Miller & La Kosta Child Care Centre & Kindergarten Pty Ltd
Filed on 27/03/2008
The application for Special Leave to Appeal dismissed on 31/07/2008
(k) M24/2008
Stanislawa Bahonko
v
Nurses Board of Victoria & Former Minister for Health/Current Minister for Education Bronwyn Pike
Filed 27/03/2008
The application for Special Leave to Appeal dismissed on 20/06/2008
(l) M46/2009
Stanislawa Bahonko
v
Moorfields Community, Bodalla Aged Care Services, United Church of Australia & Victorian WorkCover Authority
Filed on 22/05/2009
(m) M55/2009
Stanislawa Bahonko
v
State of Victoria & Attorney-General for Victoria
Filed on 05/06/2009
(n) M56/2009
Stanislawa Bahonko
v
Casey City Council
Filed on 05/06/2009
(o) M70/2009
Stanislawa Bahonko
v
Moorfields Community, Bodalla Aged Care Services, United Church of Australia & Victorian WorkCover Authority
Filed on 03/07/2009
(p) M74/2009
Stanislawa Bahonko
v
Moorfields Community, Bodalla Aged Care Services, United Church of Australia Property Trust (Victoria) & Victorian WorkCover Authority
Filed on 05/06/2009
Other proceedings – Federal Court
Ms Bahonko has issued multiple proceedings in the Federal Court.
The history of Ms Bahonko’s litigation in relation to her four days of trial employment at Lakosta Child Care Centre is set out by Gordon J in Bahonko v Sterjov & Ors in Her Honour’s decision of 8 October 2007:[42]
“Ms Bahonko in her affidavit of 3 September 2007, and during the course of her oral submissions, made allegations which are properly described as scandalous. They include allegations of criminal conduct and conduct constituting abuse of office. Those allegations are unsupported and insupportable. Ms Bahonko submitted that she required access to the transcript of the hearing before Goldberg J to make good her allegations. That access is refused on a number of bases. First, access to transcript has never been regarded as an indisputable requirement of a fair trial: see Young v Secretary for Department of Family and Community Services(2003) 76 ALD 118 at [30]. Secondly, the hearing before Goldberg J did not involve viva voce evidence. Both parties were present at the hearing and made submissions. Moreover, by reason of the nature of the application before me (an application for leave to appeal from the orders of Goldberg J), it was necessary for me to consider the correctness of the decision of Goldberg J. As stated above, that decision is not attended with any doubt. Access to the transcript of proceedings before Goldberg J would be futile. For those reasons, access is refused”.[43]
[42][2007] FCA 1555.
[43]Ibid [20].
In Bahonko v Sterjov & Ors,[44] Lander J on 14 November 2007 dealt with further applications by Ms Bahonko in that litigation in which Ms Bahonko sought the following orders:
[44][2007] FCA 1717.
· 1. Appellant is given leave to appeal from the orders NO: 2 and 3 given by Justice Gordon on 8 October 2007 and a part of the order 1, which part is not granting appellant an access to Transcripts of proceedings in VID 114/06 & VID 756/06 in full. (a) All Transcripts be provided in full.
· 2. The Notice of Appeal from Justice Gordon’s orders NO: 2 and 3 and part of the order 1 to be consolidated with the existing Notice of appeal in the matter No: VID 743/07.
· 3. Appellant has leave to amend her Notice of Appeal in VID 743/07 to include appeal from Justice Gordon’s orders No: 2 and 3 and part of the order 1 of 8 October 2007.
· 4. Transcripts of proceedings before Justice Gordon on 8 October 2007 be made available to the appellant & be part of the leave to appeal hearing.
· 5. The matter VID 822/07 is an integral part of VID 743/07 as Justice Gordon shared decision in those matters.
· 6. Appellant is given leave to appeal from judgments & whole of the orders of Justice Gordon given on 8 October 2007 in VID 822/07 and paragraphs 2,3 & 4 applies to this leave & those orders are treated as if given in VID 743/07.
· 7. Defamatory of the appellant parts of the reasons for judgments given by Justice Gordon on 08/10/07 are removed, replaced with corrective statements and apology statements and damages are paid to the appellant by the Federal Court of Australia.
· 8. Mr McKenney and Mr F Vitiello are charged with the contempt of the court and wilful defamation of the appellant in the principal matter VID 114/06 and the consequential matters VID 743/07 and VID 822/07 and pay damages to the appellant & are restrain from participation in any of her matters.
· 9. The Federal Court of Australia & the Commonwealth of Australia are added as parties to proceedings: VID 949/07 and the principal Appeal proceedings VID 743/07.
· 10. Justice Gordon is suspended from her office having engaged in a wilful and criminal defamation of the appellant in VID 828/07.[45]
[45]Ibid [20].
His Honour then set out the “evidence” which allegedly supported Ms Bahonko’s application:
The notice of motion was supported by three affidavits. The first, sworn on 15 October 2007, merely exhibited Gordon J’s reasons and a proposed notice of appeal. The affidavit sought a copy of the transcript of the hearing before Gordon J. The second, sworn on 18 October 2007, exhibited a corrected draft notice of appeal. The third affidavit, sworn on 30 October 2007, again makes very serious allegations against the respondents’ legal representatives and judges of this Court. Again, the allegations are not supported by any evidence. On this occasion, the applicant has accused the judges of this Court of giving “corrupt support” to the respondents’ legal representatives. She accuses Gordon J of a wilful criminal act in the publication and content of her reasons. She says Gordon J is in contempt of court and guilty of abuse of office, defamation, intimidation and blackmail. She says that Gordon J’s description of the applicant’s affidavit as scandalous and vexatious “serves as intentional blackmail & intimidation of me and retaliation on behalf of Mr McKenney & the Federal Court of Australia & a deceit of the public in order to be able to issue costs against me when under the WRA such costs are not to be made.” The applicant concludes:
· 34. Issuing costs in contravention of the WRA is a hard evidence of the blackmail & intimidation of me and trespass of the Act by Justice Gordon & previous Justices, justice Jessup & Goldberg.
· 35. This is an evidence of corruption & serious trespasses of the Law & Justice taking place in the Federal Court of Australia, therefore, the Commonwealth responsibility.[46]
[46]Ibid [22].
…
His Honour then went on to make a number of observations of aspects of Ms Bahonko’s application, parts of which I have extracted below:
Before Gordon J the applicant asserted that Jessup J’s orders contravened the WRA and that “[t]here were and are not any costs due against me.” She claimed in her affidavit that the “manner of the orders given by Justice Jessup on 31 August 2007 further demonstrate that those orders are unreasonable & if remain would constitute abuse of the process and continuation of a fraud.” She also alleged that his reasons constituted “multiple wilful misrepresentations, defamations and vilification of me …”. She criticised other aspects of Jessup J’s reasons. Putting aside the inappropriate language, the reasons advanced may have been relevant as to whether the order for costs should have remained or were to be reviewed on appeal. However, Gordon J was not hearing an appeal but an interlocutory application for a stay. No ground was advanced why it was appropriate that the orders be stayed.
Justice Gordon described the additional matters relied on by the applicant as “scandalous and vexatious”, being allegations of criminal conduct and conduct constituting abuse of office which were “unsupported and insupportable”.
I agree with the observations.
Order 2 of her Honour’s order on this notice of motion also had the effect of dismissing the applicant’s application that the respondents’ legal representatives step down. Her Honour dismissed that application on the ground that the allegations made in support of the notice of motion were without foundation and scandalous. I have studied the allegations contained in the applicant’s affidavit sworn on 20 September 2007 which was the affidavit relied upon by the applicant before Gordon J and the affidavit sworn on 30 October 2007 in support of this notice of motion before me. I agree with her Honour in both respects. The allegations are without foundation and scandalous. I make these comments notwithstanding the vitriolic comments made by the applicant in respect of Gordon J’s comments to the same effect.
Paragraphs 7 and 10 of the notice of motion seem to assume that a judge of the Court has some sort of supervisory jurisdiction over another judge of the Court or at least the reasons published by another judge of the Court. Nothing could be further from the fact. The notion of the independence of the judiciary is fundamental to the system of justice in this country. It is not only that judges are independent of the Executive but each judge of the Court is independent of each other. It is important that judges are not subject to influences or pressures from their fellow judges so that each judge can give their judgment and their reasons freely. A judge’s judgment and reasons are subject to scrutiny but only on appeal.
Each judge, when exercising the jurisdiction of the Court, is sitting as “the Court”. In those circumstances, no one judge sitting as the Court can direct another judge, also sitting as the Court, to do or not to do something and, in particular, to review the judge’s reasons or in any way alter those reasons: Bird v Free (1994) 126 ALR 475. It goes without saying, of course, that no judge could direct another judge to apologise to a litigant or to pay damages
The applicant should understand that the kinds of complaints she makes about the judges of this Court must be viewed in the light of the immunity which attaches to judicial proceedings. A judge, a jury, the parties, their representatives and witnesses enjoy an absolute privilege in respect of their statements in judicial proceedings: Cabassi v Villa (1940) 64 CLR 130 at 140; Mann v O’Neill (1997) 191 CLR 204 at 211. The rationale for the rule is that it is indispensable for the performance of the function: Mann v O’Neill 191 CLR at 213. It exists for the protection of judicial independence: Fingleton v R (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge’s reasons.
In Fingleton 216 ALR at 485–6, Gleeson CJ cited with approval Lord Denning’s dicta in Sirros v Moore [1975] QB 118 at 132:
Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.
This application contains no evidence to support the laying of any charge of contempt against the respondents’ legal advisers. The applicant’s affidavit of 30 October 2007 charges the respondents’ legal advisers with misrepresentation, defamation and contempt by reason of their failure to inform the Federal Court of the misrepresentation and defamation contained within the reasons for judgment of 8 October 2007. Whilst not in any way accepting that the reasons for judgment possess the failings complained of, the failure, if there be one, of the legal representatives to inform the Federal Court of the errors contained in those reasons could never amount to a contempt. Not only is there no basis in fact for the application, but the applicant has failed to conform with O 40 of the Rules and to provide a statement of the charge. Any legal practitioner charged with such a serious matter is entitled to have the party laying the charge conform with the Rules in all regards and, in particular, to provide a statement of the charge.
The proposed notice of appeal that the applicant would file if leave had been granted is, like the applicant’s affidavits, scandalous and vexatious. The grounds of appeal relating to Gordon J’s conduct and reasons are outrageous and unsupported by the reasons about which the complaints are made.
The applicant has filed applications before Finkelstein J, Goldberg J, Gordon J and now me in which she has successively made complaints about the conduct of judges of this Court and of the legal practitioners representing the respondents. Latitude is given to unrepresented parties because sometimes they may have difficulty in understanding the Court’s processes. Sometimes unrepresented parties become very involved in the processes and express themselves infelicitously. However, there comes a time when the Court must, for the purpose of maintaining the dignity of the Court and the public’s confidence in the Court, say enough is enough. That stage has been reached. The applicant must understand that, if she continues to make unsubstantiated allegations of the kind in the application, affidavits and draft notices of appeal which scandalise the Court, action may need to be taken for the protection of the Court. I have considered whether it might be appropriate to take action in this proceeding. However, the applicant has not previously been warned that her conduct may be considered to be a contempt of the Court. I have therefore determined that on this application she should be given this warning.[47]
[47]Ibid [37], [39], [42], [60], [61], [63], [64], [69], [73], [74], [75].
Applicable legal principles
78 Section 21 of the Supreme Court Act 1986 relevantly provides:
"(1) The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.
(2) The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has--
(a) habitually; and
(b) persistently; and
(c) without any reasonable ground--
instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.
. . . "
In Attorney-General for the State of Victoria v Weston,[48] Whelan J analysed the authorities and then summarised the principles relevant to an application under s 21, parts of which I will refer to in the course of this judgment. It suffices now to set out his Honour’s summary of the relevant principles.
[48][2004] VSC 314 (Weston). See also Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 [2] – [12].
It seems to me that the applicable legal principles may be summarised as follows:
(1) The application seeks a remedy of a most serious nature and a clear and compelling case must be shown to warrant it.
(2) The requirements of the section are that the person must have
* instituted proceedings
* which are vexatious
* and to have done so habitually and persistently and without reasonable cause.
If the requirements are met, the Court must then consider whether an order ought to be made.
(3) A proceeding is "instituted" where originating process is filed, and also where a person counterclaims, appeals against an otherwise final determination of the substantive matter, or applies to have an otherwise final determination set aside. Interlocutory applications and appeals on interlocutory applications do not ordinarily constitute the institution of proceedings.
(4) Vexatious proceedings are proceedings which have either been brought for an improper purpose, or which have been revealed to be hopeless. Hopelessness ought to be apparent from the ultimate disposition. A genuine claim, or element of a claim, may exist within a vexatious proceeding, where it is deeply buried in untenable claims and bizarre allegations.
(5) Vexatious proceedings are instituted "habitually" where they appear to be commenced as a matter of course. "Persistence" suggests determination and an element of stubbornness. An absence of reasonable grounds will necessarily be the position where the proceedings have been revealed to be hopeless.
(6) If the requirements of the section are met, the person's conduct as a whole must be then assessed to determine if, in all the circumstances, an order ought to be made.
I should also mention one other decision amongst a plethora of authority on this subject. In The Attorney-General for the State of Victoria v Horvath Senior,[49] Ashley J said as to the proper approach to be taken by a trial judge as an application under s 21:
It is one thing to know what the word "vexatious" means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.[50]
[49][2001] VSC 269.
[50]Ibid [28].
Analysis
Has Ms Bahonko instituted vexatious legal proceedings?
In Weston Whelan J said of the institution of proceedings:
One of the section's requirements is that the person has "instituted . . . proceedings" of the specified character in the Court, defined as the Supreme Court, an inferior court, or a tribunal. Proceedings instituted in Federal Courts and in other States do not fall with the ambit of s 21.
Clearly the filing of an originating process constitutes the institution of a proceeding, but how much wider is the concept? A commonly cited discussion of what constitutes the institution of a proceeding is that of Yeldham J where he said:
"While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form."
The Attorney-General relied upon this passage. The Attorney-General also submitted that a counterclaim constituted the institution of legal proceedings, citing Attorney-General v Jones and Attorney-General for the State of Victoria v Horvath, senior; as did the institution of an appeal, citing (in addition to the Yeldham J dicta) Mephistopheles Debt Collection Services v Lotay and Attorney-General for the State of Victoria v Horvath, senior. Mr Weston made no submission on this issue.
I have also had regard to Chernov JA's observations in Kay v Attorney-General in relation to appeals, to Kellam J's approach to interlocutory applications in Attorney-General v Lindsey, and to the treatment of interlocutory applications by the Full Court of the High Court of New Zealand in Attorney-General v Collier.
The conclusions that I draw from these authorities are that a person institutes a proceeding for the purposes of s 21 when he or she files an originating process, and also where he or she:
(1) makes a counterclaim in a proceeding,
(2) appeals from a final determination in a proceeding, or
(3) seeks to set aside a determination in a manner which is in substance an attempt to appeal or re-litigate a matter otherwise finally determined.
Interlocutory applications, and appeals on such applications, do not, in the ordinary case, constitute the institution of a proceeding. Where interlocutory applications are in substance an attempt to appeal or re-litigate a matter otherwise finally determined, they fall within the third category above and are to be considered the institution of proceedings. [51]
[51]Weston [9] – [13].
His Honour then went on to collect a number of authorities on the question of vexatious proceedings:
Whether a proceeding is vexatious is to be objectively determined as a question of fact. The test is whether the proceedings themselves are vexatious, not whether they were instituted vexatiously. With one qualification, I adopt the categorisation of Roden J in Attorney-General v Wentworth, where he described proceedings as vexatious if:
(1) they are instituted with the intention of annoying or embarrassing the person against whom they are brought; or
(2) they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise; or
(3) irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
The category of proceedings that are vexatious because they are hopeless was discussed by the Full Court of the Supreme Court of Western Australia in Attorney-General v Michael. Anderson J, in the leading judgment, said that proceedings brought without bad faith need not be plainly devoid of any merit whatsoever in order to be considered vexatious. He said:
"The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy. In this case ... [w]hilst it is not possible to say that the claim ... is `utterly hopeless', the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section."
I agree with this qualification to, or amplification of, Roden J's formulation. I am also mindful of the fact that meritorious claims can be hidden in verbiage, particularly where a claimant is unrepresented. As will be seen, however, the question of whether the amplification or qualification referred to in Attorney-General v Michael should apply does not arise in considering the proceedings that are the subject of this application.
In Kay v Attorney-General, the Court of Appeal made it clear that in considering the character of relevant proceedings it is not necessary for the Court to re-examine the circumstances of each proceeding relied upon. The character of the proceeding should be apparent upon a reading of the reasons and orders.
The Full Court of the High Court of New Zealand said in Attorney General v Collier:
"The fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way. Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points . . . may be reliable evidence in the circumstances of vexatiousness."
In the absence of bad faith or improper purpose, the proper approach is to assess whether the proceeding was utterly hopeless. The reasons given and other observations made by a court upon the substantive determination of the proceeding may reveal vexatiousness in this sense, as may a successful strike-out application.
The fact that a proceeding is utterly hopeless may not be apparent until a trial of the issues. The complete absence of any evidential basis for allegations pleaded, for example, will not be apparent on a strike-out application. A proceeding may be vexatious even if it was not or would not be struck out.[52]
[52]Weston [14] – [19].
I am mindful of the fact that Ms Bahonko did not attend this hearing and so there has been no contradictor to the submissions put on behalf of the Attorney-General. I have, accordingly, examined the relevant court processes, rulings and judgments referred to with some care.
It is clear, I think, that the WorkCover proceeding[53] should not be treated as vexatious; it still requires a final determination. Nor should the 2009 VCAT proceeding which seems to have been determined unfavourably to Ms Bahonko on a technical, but relevant, point.[54]
[53][30]-[46] above.
[54][62]-[64] above.
However it is also clear from the record and those parts of the reasons that I have set out that a number of the other proceedings instituted by Ms Bahonko in this Court and at VCAT can be properly described as vexatious, disclosing no reasonable cause of action or hopeless. I identify in particular:
(a)the proceeding against the Nurses Board dismissed by Cummins J and the subsequent appeal to the Court of Appeal;[55]
(b)the application to VCAT in February 2006 in relation to the Freedom of Information Act;[56]
(c)the appeal to this Court against the Magistrate’s refusal to permit a rehearing of the City of Casey judgment and the subsequent application to the Court of Appeal for leave to file an appeal..[57]
(d)the summons issued in the Court of Appeal in February 2009 in relation to a grand jury application.[58]
[55][22] – [27] above.
[56][29] above.
[57][47]-[59] above.
[58][60]-[61] above.
The findings and the reasons provided by the relevant judicial officers demonstrate that each case was either hopeless or could not have any reasonable basis for being successfully prosecuted.
In summary, I am satisfied that Ms Bahonko has instituted multiple proceedings which are properly categorised as vexatious.
Habitually and persistently
In Weston, Whelan J said:
In Attorney-General v Wentworth, Roden J interpreted these requirements as follows:
"`Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; `persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness."
This approach was adopted by Kellam J in Attorney-General v Lindsey, and by Eames J in Attorney-General for the State of Victoria v Kay. I also adopt it, again with one qualification or amplification.
The qualification or amplification is that set out in Brogden v Attorney-General, a decision of the New Zealand Court of Appeal, in relation to the term "persistently". The Court said:
"A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed."[59]
[59]Weston [20] - [21].
I am satisfied that Ms Bahonko has both habitually and persistently instituted vexatious proceedings. Her pattern of conduct over the years demonstrates the institution of proceedings in respect of any matter that aggrieves her being undertaken as a matter of course. The length of time over which such proceedings have been instituted and their regularity satisfies me that such conduct is also persistent.
Without any reasonable ground
In Weston Whelan J said:
The requirement that proceedings also be instituted without any reasonable ground is necessarily satisfied if the proceedings are utterly hopeless. It seems to me that Toohey J was correct in identifying an element of tautology in the provisions. This requirement will have an independent operation if the proceedings are considered vexatious on a basis other than their hopelessness. In that instance, the fact that the plaintiff followed independent legal advice in bringing a claim may be relevant. [60]
[60]Weston [22].
I have already noted that a number of the applications and appeals have been treated as either hopeless or bound to fail.
Summary
Each of the elements contained in s 21(2) have been made out by the Attorney-General.
Should an order be made and if so in what terms
Perram J in Official Trustee in Bankruptcy v Gargan (No 2),[61] set out a series of principles relevant to determining whether a person is a vexatious litigant under s 84 of the Supreme Court Act (NSW). Of particular relevance is what His Honour said in relation to the exercise of the discretion if the Court’s power is engaged:
Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise. [62]
[61](2009) FCA 398.
[62]Ibid [12].
In determining whether an order ought to be made I am not confined to an examination of the proceedings which engage the application of this provision. It is appropriate to look at Ms Bahonko’s conduct generally, including that in other jurisdictions. In my view, it is appropriate to make an order declaring Ms Bahonko a vexatious litigant. The following matters are compelling in this regard:
(a) Mrs Bahonko’s recourse to what appears to be a never ending number of applications (both in relation to interlocutory determinations and final determinations) against a wide range of persons;
(b)the constant prosecution of cases which are hopeless or have no reasonable foundation;
(c)the extraordinary disruption of court business caused by Ms Bahonko’s behaviour not only in this Court, but in the County Court, VCAT, Federal Court and the High Court;
(d)the constant barrage of appeals or applications for leave to appeal upon every order made adverse to her interest – extending to costs orders, adjournments, applications for transcript;
(e)the ever widening net Mrs Bahonko casts – to the point of ”unknown unknown” being a respondent to an application.
(f)the making of unsubstantiated and scurrilous allegations against politicians, judicial officers, legal practitioners and public servants – with apparent impunity and regardless of the hurt that such allegations may cause;
(g)Ms Bahonko has, in the past, been warned that her conduct may constitute a contempt of court. As Lander J observed, there is a point at which an unrepresented litigant must obey a court’s rules and processes. To permit constant and significant transgressions undermines public confidence in the court and the standing of judicial officers.
Orders
An order should be made pursuant to s21(1) of the Supreme Court Act (1986) declaring Mrs Bahonko to be a vexatious litigant. However I propose to exclude from the effect of the order two current proceedings namely:
(a) the WorkCover proceeding; and
(b) Ms Bahonko’s appeal to the Court of Appeal against the orders of Davies J of 21 September 2009 in relation to the taxation of costs in the Casey City Council litigation.
Each was instituted prior to this application being issued and should be permitted to be argued, without seeking leave of the relevant Court.
Given the effect of this order I will also discharge the orders I made on 6 June 2011 and 26 August 2011 restraining Mrs Bahonko from instituting proceedings.
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