Attorney-General (Vic) v Bahonko
[2011] VSC 116
•31 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No 4919 of 2010
IN THE MATTER of an application pursuant to s 21 of the Supreme Court Act 1986 (Vic)
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| STANISLAWA BAHONKO | Defendant |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2011 | |
DATE OF JUDGMENT: | 31 March 2011 | |
CASE MAY BE CITED AS: | Attorney-General (Vic) v Bahonko | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 116 | |
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PRACTICE AND PROCEDURE – Appeal from procedural orders of an Associate Judge – Proceeding to declare the defendant a vexatious litigant – Change of Attorney-General does not affect proceeding – Commencement by originating motion – Whether proceeding a miscarriage of justice – Procedural orders now overtaken by events – New procedural orders made – Supreme Court Act 1986 (Vic) s 21 – Interpretation of Legislation Act 1984 (Vic) s 47 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 4.05(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Masel | Victorian Government Solicitor |
| For the Defendant | In person |
HER HONOUR:
By Notice of Appeal dated 8 November 2010, the defendant, Ms Bahonko, appeals against orders made by Associate Justice Mukhtar on 27 October 2010 (the ‘impugned Orders’). The impugned Orders are procedural orders in an application brought by the Attorney‑General under s 21 of the Supreme Court Act 1986 for an order declaring Ms Bahonko to be a vexatious litigant (the ‘declaration proceeding’).
The impugned Orders are as follows:
(1)The Defendant by 4.00pm on 28 January 2011 file and serve any affidavit on which she seeks to rely.
(2)The Plaintiff by 4.00pm on 18 February 2011 file and serve any affidavit in reply.
(3)The proceeding be fixed for trial (with an expectation that it would take up to 5 days) on a date to be advised to the parties by the Court, such a date to be not before 1 March 2011 and to be a date fixed with such priority as is possible having regards to the nature of the proceeding.
(4)The parties have liberty to apply on 48 hours written notice.
(5)Costs are reserved.
(6)The ‘application’ dated 23 September 2010 and the ‘application continuation of application of 23/09/2010’ dated 24 September 2010 (both of which are identified as ‘A’ and ‘B’ respectively) be treated as countervailing summons by the Defendant (copies of which are annexed to this order).
(7)The application for adjournment as sought in the application marked ‘A’ is refused.
(8)Subject to further order, any relief or remedy as sought by the Defendant in her application (‘A’ or ‘B’) be referred to the Court hearing the Plaintiff’s originating motion.
(9)Costs reserved on that application.
In ‘Other Matters’ it was noted as follows:
(1)This Court refused an application made by the Respondent that this Court, constituted by Associate Justice Mukhtar, excuse itself from hearing the matter because the Judge was appointed by the Applicant to judicial office, and because the Judge demonstrated actual bias, and because the Judge refused to refer her protestations about the Attorney‑General’s criminal conduct to the authorities.
(2)The Applicant has offered, but the Respondent has refused vehemently to re‑open the procedural orders made by the Court on 24 September 2010.
(3)This Court rules that it was appropriate and legitimate for the Attorney‑General to commence this proceeding by way of originating motion.
(4)The Respondent refuses to make submissions on remaining procedural matters, stating that she would lay criminal charges against the Judge.
(5)Upon the Respondent being told that the Court would hear her on the dates upon which she ought file her responding affidavits, she left the Court in indignation.
Application ‘A’, which is attached to the impugned Orders, is expressed to be an application for an adjournment of the directions hearing scheduled for 24 September 2010 and for summary dismissal of the “vexatious, malicious and frivolous application by demonstrated criminal and evidential Rob Hulls”, along with a referral “of the Rob Hulls and John Cain and Stephen Joseph Lee to DPP for criminal investigation.” The grounds for these applications are alleged breaches of human rights legislation, breach of the Australian Constitution, breach of natural justice and obstruction in the administration of justice in a WorkCover claim. The paragraphs that follow make a variety of allegations against the former Attorney‑General, outline Ms Bahonko’s medical conditions and contain submissions as to the time that she needs to peruse exhibits and obtain legal assistance.
Application ‘B’ refers to Ms Bahonko’s medical conditions, the fact that she was not able to get out of bed in the morning and discussions that she had with the Registry of this Court about her ability to attend court.
Before Associate Justice Mukhtar, Ms Bahonko relied upon her affidavit sworn on 22 October 2010. In this affidavit, Ms Bahonko refers to an assault on her and injuries caused on 6 May 2004 and a series of crimes against her that allegedly followed, which she says are the causes of her various court applications. She details a series of incidents in which she says she has been harassed in her home and outside her home by members of Victoria Police, members of the transit police and others.
Ms Bahonko’s Notice of Appeal against the impugned Orders does not give any grounds for appeal. However, in lengthy oral submissions made by Ms Bahonko, it emerged that her fundamental reason for appealing the impugned Orders is because she contends that the declaration proceeding involves a miscarriage of justice and ought to be dismissed. In Ms Bahonko’s submission, no procedural orders ought to have been made by Associate Justice Mukhtar until the fundamental question of the legitimacy of the declaration proceeding was determined. She contends that the Court, even at the procedural stage, was required to deal with the miscarriages of justice that she says she has suffered since 6 May 2004 and with the criminal conduct that she alleges against various persons, including Associate Justice Mukhtar himself, the former Attorney‑General and the Victorian Government Solicitor and various members of this Court. According to Ms Bahonko, if the Court deals with these matters as she says it must, the declaration proceeding will be dismissed or at least stayed until her appeal to the Court of Appeal in relation to a WorkCover claim brought some years ago is heard and determined.[1]
[1]I take this to be a reference to Court of Appeal Proceeding No. 3832 of 2008, Bahonko v Moorfields Community, Bodalla Age Care Services, Uniting Church in Australia Property Trust and Victorian WorkCover Authority.
In oral submissions, Ms Bahonko raised the following further grounds as to why the impugned Orders should not have been made:
(a)The declaration proceeding was brought by the former Attorney‑General rather than the current Attorney‑General and the former Attorney-General has no continuing authority to bring the proceeding;
(b)The position of the current Attorney‑General is unknown. If the current Attorney‑General wishes to pursue the declaration proceeding, he should be subpoenaed to give evidence to the Court about his intentions;
(c)The declaration proceeding is a nullity or is improper because it was commenced by way of originating motion.
It is convenient to deal with these grounds before considering Ms Bahonko’s principal submission that the declaration proceeding involves a miscarriage of justice and ought to be dismissed.
Grounds based on the fact that there is a new Attorney‑General
The previous Attorney-General, the Hon Rob Hulls MLA, ceased to occupy the office of Attorney-General as a result of the change of government following the State election in late November 2010. In substance, I understand Ms Bahonko to submit that as the person who commenced the declaration proceeding against her was “removed” as Attorney General, the declaration proceeding itself must fall away.
Section 21 of the Supreme Court Act 1986 provides that the Attorney‑General[2] may apply to the Court for an order declaring a person to be a vexatious litigant. Section 47 of the Interpretation of Legislation Act1984 (Vic) provides that in an Act, a reference in general terms to a person holding or occupying a particular office or position shall, unless the contrary intention appears, be construed as a reference to all persons who at any time hold, occupy, act or perform the duties of that office or position for the time being.
[2]Section 38 of the Interpretation of Legislation Act 1984 defines “Attorney‑General” to be the Attorney‑General of Victoria.
The effect of this is that a proceeding commenced by the Attorney‑General remains on foot when a different person comes to occupy that particular office. The declaration proceeding therefore survives the change of government and the change in the identity of the person occupying the office of Attorney-General.
As to the attitude of the new Attorney‑General to continuing the declaration proceeding, Mr Masel, Counsel for the Attorney‑General, informed the Court that he had current instructions in the proceeding. I accept that Counsel for the Attorney-General continues to receive instructions in the proceeding and it is neither necessary nor appropriate for the Attorney-General to attend court in person to confirm those instructions.
Accordingly, the declaration proceeding will not be dismissed because the person who occupied the office of Attorney-General at the time the proceeding was commenced no longer occupies that office.
Commencement of the proceeding by originating motion
The impugned Orders refer to the manner in which the declaration proceeding was commenced in “Other Matters”.
In fact, orders permitting the declaration proceeding to be commenced by way of originating motion were made by Associate Justice Mukhtar on 24 September 2010. On that day, Associate Justice Mukhtar ordered, among other things, that the Attorney-General have leave to commence the proceeding by originating motion in Form 5C and that there be dispensation with the requirements of Rules 5.03(1) and 8.02 of the Supreme Court (General Civil Procedure) Rules 2005.
Ms Bahonko appealed those orders to Justice Sifris sitting in the Practice Court on 8 November 2010. In dismissing Ms Bahonko’s appeal, Justice Sifris recorded that the main reason given by Ms Bahonko for challenging the orders was that it was not appropriate for the Court to make orders that the declaration proceeding be commenced by originating motion because discovery was important to her and ordinarily in proceedings commenced by originating motion, discovery is not made. However, his Honour observed that Ms Bahonko was not prevented from making an application for discovery under the Supreme Court (General Civil Procedure) Rules 2005 and that she could apply for procedural orders that would assist her to defend the declaration proceeding.
Given that Ms Bahonko’s complaint about the declaration proceeding being brought by way of originating motion has been dealt with by Justice Sifris, I need say no more. However, I observe that r 4.05(b) of the Supreme Court (General Civil Procedure) Rules 2005 provides that a proceeding shall be commenced by originating motion “where by or under any Act an application is authorised to be made to the Court.” The declaration proceeding is an application authorised to be made to the Court under s 21 of the Supreme Court Act 1986 which may be commenced by originating motion.
The proceeding as an abuse of process
Ms Bahonko submits that the declaration proceeding should be dismissed because it involves or perpetuates a miscarriage of justice. Generally, she submits that the declaration proceeding is a part of a concerted campaign to destroy her mentally and physically brought by powerful institutions, including the State government and the Uniting Church in Australia. More specifically, she alleges that it has been brought to prevent her from preparing her appeal to the Court of Appeal in her WorkCover matter, and that it is therefore an abuse of process.
Although on an appeal to the Trial Division from orders made by an Associate Justice the parties are limited to the evidence that was before the Associate Justice, Ms Bahonko was given leave to rely upon a number of affidavits that she filed in the declaration proceeding after the impugned Orders were made on 27 October 2010. The affidavits initially mentioned in Court were:
(a)two affidavits of Ms Bahonko sworn 5 November 2010;
(b)affidavit of Ms Bahonko sworn 11 November 2010;
(c)affidavit of Ms Bahonko sworn 16 November 2010;
(d)affidavit of Ms Bahonko sworn 18 November 2010.
On 11 March 2011, Ms Bahonko filed a document in response to the Court’s invitation to set out in list form those affidavits filed in the proceeding upon which she sought to rely in this appeal. The document is a lengthy one. Buried in it is a list of the affidavits upon which Ms Bahonko seeks to rely: her affidavit of 19 October 2010, her affidavit of 22 October 2010, her two affidavits of 5 November 2010, her affidavit of 11 November 2010, her affidavit of 16 November 2010 and her affidavit of 18 November 2010, along with exhibits. However, Ms Bahonko has also taken the trouble to set out over 11 pages a chronology of events forming the basis for her allegations of miscarriage of justice commencing on 6 May 2004. In so doing, she has identified what she says are “patterns of sadism” against her. Parts of that document bear describing or setting out in detail, because they serve to illustrate the nature of the allegations made by Ms Bahonko and explain the difficulty that this Court confronts dealing with the allegations that she makes.
Ms Bahonko alleges that she has been seeking justice for almost seven years for the assault perpetrated on her on 6 May 2004. On that day, I understand Ms Bahonko to have been forcibly removed from her place of employment at the behest of her employer, the Uniting Church. The fact that it is taking her so long to obtain justice, according to Ms Bahonko, plainly demonstrates “widespread corruption and organised crime of those in power. … It is a shameful evidence of fascism in government, justice, health, education, media and every other sphere of life in Australia. Fascism is evident when insurance is payable and compensation given and laws applicable to some only that is those who belong to Fascist Corporation and its supporters or to those from whom a fascist’s lawyers profit.” Ms Bahonko then moves to attack the Uniting Church as “psychopaths” who are exterminating elderly residents in their nursing homes and alleges that the Church represents “united and organised evil”, running schools, hospitals, kindergartens as well as governments both State and Federal, and that it “spreads around the world causing moral corruption and perversion”. According to Ms Bahonko, this “organised evil” infiltrates positions of power and places its people as judges in courts, doctors in hospitals, and so on. Uniting Church judges sit on her matters in the courts and Uniting Church courts’ administrators handle her documents. This “Uniting Evil” has caused a miscarriage of justice and a perversion of justice in all of her proceedings in the courts, as well as causing her to be assessed by evil doctors who produce corrupt reports and diagnoses. According to Ms Bahonko, this evil has been stalking her for seven years and has tormented her physically and mentally during that time; it has organised regular assaults on her at her home and incites violence against her anywhere it can. Even her local Hampton Park church was officially visited and the congregation spoken to by a Uniting Church missionary.
Ms Bahonko says that evidence of a miscarriage of justice in her cases is a matter of public record, although court files have been corrupted by corrupt administrators. Evidence of corruption in judges is to be found in their reasons for judgment and in the corrupt orders that they make. According to Ms Bahonko, these criminals ought to be removed from their posts to enable the miscarriage of justice that she has suffered to be corrected. She says that she will seek international support for this purpose. She says that she should not be tortured yet again and subjected to a “farce trial” and court processes to satisfy the sadistic needs of Uniting Church psychopaths.
Ms Bahonko then describes “patterns of sadism” in 45 paragraphs dealing with the conduct of the “masterminds” of the Uniting Church, the “sadists” in the Nurses’ Board, the former Minister for Health “Uniting Church psychopath” Bronwyn Pike, the “sadists in law” from various Melbourne law firms as well as the Judges and the Prothonotary at the Supreme Court, the “wilful mental tortures” by VCAT members and barristers appearing for the Victorian Government Solicitor’s office. She makes allegations against persons of “Arab appearance” in the police force and on this Court (which Ms Bahonko says is no coincidence) and so on.
Ms Bahonko’s persistent complaint is that she has been the victim of assaults and violence by persons in authority, starting with the alleged assault on her by police officers at her place of employment on 6 May 2004.[3] Ms Bahonko feels frustrated by the failure of authorities to investigate the various incidents that she alleges. She also persistently complains that judicial officers are biased against her but refuse to disqualify themselves (which she claims they are bound to do once an allegation of actual bias has been made), and that the legal representatives of the State government have lied to or mislead the court and generally “interfered with her court matters”.
[3]She alleges two further serious assaults: the first by officers of Victoria Police on 7 October 2010; the second in the precincts of the Court on 26 October 2010. In the present application, Ms Bahonko also alleged that Associate Justice Mukhtar assaulted her on 27 October 2010, in part, as I understand it, because she was required to make her submissions in front of a courtroom full of people.
Consistently with Ms Bahonko’s thesis that there is an overarching conspiracy against her, her affidavits of 5 November make a variety of allegations against the former Attorney‑General, the current Attorney‑General, members of the legal profession who have acted for the Attorney-General, Justices and Associate Justices of the Court, and Court officers, along with police and protective services officers.
Ms Bahonko’s affidavit of 11 November 2010 exhibits a number of other documents prepared by her, including her outline of submissions for an application for injunctions against the Attorney-General, judicial officers, court officers and police officers, a statutory declaration made by Ms Bahonko on 26 October 2010, a further statutory declaration which appears to have been made on 8 October 2010 and a summons issued in the High Court of Australia in respect of various applications for leave to appeal to the High Court of Australia.
By her affidavits of 16 and 18 November 2010, Ms Bahonko describes what she says is the necessity to seek injunctions against the Attorney‑General, the Chief Commissioner for Police and other defendants in order to preserve her mental and physical health, as the proceedings against her constitute mental torture and psychological violence. She alleges that threats of physical violence have been carried out in the course of the proceeding and that there is a pattern of life‑threatening assaults and unlawful imprisonments perpetrated by Victoria Police (and ticketing inspectors) on a variety of dates, as well as threatened assaults at St Vincent’s Hospital and Royal Melbourne Hospital in October last year.
In her affidavit of 18 November 2010, Ms Bahonko makes particular reference to Judge Misso and the trial of her WorkCover claim in the County Court of Victoria. I take this to be the proceeding commenced by Ms Bahonko on 20 July 2006 against her former employers, the Uniting Church in Australia, Bodalla Aged Care Services and Moorfields Community, seeking compensation for the termination of her employment. That proceeding was dismissed in July 2008. Ms Bahonko refers to the fact that his Honour made a submission to the Law Reform Committee of the Victorian Parliament for its inquiry into vexatious litigants in June 2008, which she says was just five days prior to her WorkCover trial. Ms Bahonko says that in his submission, his Honour referred to Ms Bahonko as “a case in point”.
Ms Bahonko handed up a copy of the submission made by Judge Misso to the Parliamentary Committee. It contains a section discussing the conduct of an un-named litigant under the heading “A Case in Point”. Ms Bahonko alleges that the former Attorney‑General collaborated with Judge Misso to “corrupt” this proceeding and that its result was predetermined. She also makes a series of apparently unrelated allegations against the Commissioner of Police, based upon reported incidents, including the shooting of Tyler Cassidy.
In oral submissions Ms Bahonko also complained that the declaration proceeding has been brought for the purpose of ensuring that she cannot properly prepare for the appeal in her WorkCover matter, which is apparently due to be heard shortly. She also asks that the declaration proceeding be summarily dismissed or stayed.
Aside from this last point there is, in fact, little to distinguish this appeal from the appeal heard by Osborn J on 26 November 2010, in which Ms Bahonko sought an order that the Attorney-General be enjoined from continuing the declaration proceeding, and for which Ms Bahonko prepared a statutory declaration dated 26 October 2010 and filed an affidavit sworn by her on 26 November 2010. The same kinds of wide-ranging allegations were made by Ms Bahonko and she advanced what appears to be the same overarching conspiracy against her in that appeal. Justice Osborn did not accept that Ms Bahonko’s affidavit material justified the relief sought by her and it was refused. His Honour observed that the allegations made by Ms Bahonko were of such seriousness that they could not readily be accepted as proven by mere assertion on an interlocutory basis. [4]
[4]Attorney-General (Vic) v Bahonko [2010] VSC 588 (14 December 2010) [14].
I have the same difficulty in this appeal. Ms Bahonko’s allegations cannot be accepted as proven by mere assertion on her part.
In considering Ms Bahonko’s application to have the declaration proceeding dismissed or permanently stayed, I have had regard to the affidavit of Stephen Joseph Lee sworn 8 September 2010 in support of the Attorney‑General’s application. Ms Bahonko contends that Mr Lee has perjured himself in this affidavit, apparently because Mr Lee refers to her being “escorted” and “removed” from her former workplace, whereas Ms Bahonko alleges that she was seriously assaulted (“assault to kill”) in that process. She therefore takes issue with words used by Mr Lee. However, it is plain that Mr Lee was seeking to use neutral language in his affidavit and there is no question of him having perjured himself in so doing. Mr Lee does not purport to have witnessed the relevant event.
Mr Lee’s affidavit discloses that there is a triable basis for the declaration proceeding. Since 2004, Ms Bahonko has commenced no less than 17 proceedings in various Victorian courts and the Victorian Civil and Administrative Tribunal and 31 proceedings in the Federal Court and High Court of Australia. Nothing in Ms Bahonko’s material provides a basis for disputing that there has been a very long history of proceedings brought by her in VCAT, the County Court, the Supreme Court (Trial Division), the Supreme Court (Court of Appeal), the Federal Court of Australia and the High Court of Australia. In my view, the allegations made by Ms Bahonko do not provide a basis for dismissing the Attorney‑General’s application at this preliminary stage without a full hearing.
In particular, Ms Bahonko’s contention that the Attorney‑General has brought the declaration proceeding in order to prevent her from properly preparing for her WorkCover appeal does not find proper support in the materials upon which Ms Bahonko relies. It is not enough for Ms Bahonko to state over and over again her opinion that the Attorney-General is corrupt, that he is in league with the Uniting Church or other conspirators, or that he was responsible for the police at times that Ms Bahonko alleges that she was assaulted by police officers. Nor is it enough for Ms Bahonko to refer to newspaper articles that are critical of the Attorney-General. The fact that Judge Misso made a submission to a Parliamentary Committee that Ms Bahonko believes referred to her (although she is not mentioned in the submission by name or, so far as I can tell, identified by any other means) at about the time that his Honour heard her WorkCover case, goes nowhere near showing that that the former Attorney‑General collaborated with Judge Misso to “corrupt” that proceeding or that he was involved in ‘predetermining’ it. Ms Bahonko has put forward nothing but assertions impugning the honesty and integrity of the former Attorney-General to support her claim that he has brought the declaration proceeding for the purpose of de-railing her WorkCover appeal.
I am not satisfied that the declaration proceeding is an abuse of process, or that it is ‘vexatious, malicious and frivolous’ or otherwise constitutes or gives rise to a miscarriage of justice. Accordingly, the declaration proceeding will not be dismissed or permanently stayed.
It remains to consider the ongoing utility of the impugned Orders, as they have been largely overtaken by events. I understand that Ms Bahonko has not filed her affidavit material as required. Furthermore, his Honour Justice Osborn has now fixed the declaration proceeding for trial on 6 June 2011.
Ms Bahonko submitted that she should not be required to take any steps in the declaration proceeding until her appeal in her WorkCover appeal has been heard and determined. She informed the Court that her WorkCover appeal cannot be heard until she has complied with an order to prepare, file and serve appeal books. She says that she has not been able to undertake this task because of the distraction of the declaration proceeding. When Ms Bahonko made this submission, I was initially inclined to vacate the hearing date and to provide for the declaration proceeding to be heard later in the year in order to enable Ms Bahonko to devote herself to the preparation of her WorkCover appeal. However, I note that at paragraph 78 of Mr Lee’s affidavit, he refers to orders made by Justices Ashley and Vickery on 6 February 2009 setting down a timetable for the provision of appeal books and outlines of argument to enable Ms Bahonko’s appeal to be set down to be heard. The requirement for Ms Bahonko to prepare and serve appeal books was therefore first imposed over two years ago. Ms Bahonko told the Court that she has not fully complied with this order, as she is required to file further copies of the appeal books. The orders of the Court of Appeal made in February 2009 well and truly predate the commencement of the declaration proceeding. The declaration proceeding cannot be blamed for Ms Bahonko’s failure to fully comply with the order. The fact that an order was made more recently for a further appeal book volume to be filed[5] does not alter the position that Ms Bahonko has taken a very long time to do the things that she needs to do to have her WorkCover appeal heard and determined.
[5]Orders of Bongiorno JA and Vickery AJA made on 3 September 2010.
Accordingly, I do not accept that the declaration proceeding is the reason why Ms Bahonko’s preparation for her WorkCover appeal has not been completed. In the circumstances, the existence of the appeal and Ms Bahonko’s ongoing need to prepare for it is not sufficient reason to delay the hearing and determination of the declaration proceeding. The date for the trial of the declaration proceeding will be retained and new orders will be made for the preparation of the proceeding for trial.
In lieu of the impugned Orders, orders will be made providing for the filing and service by mid-May of any affidavit on which the defendant may seek to rely and for any affidavits in reply to be filed and served by the end of May. An order will also be made dismissing Ms Bahonko’s application dated 23 September 2010 and the ‘application continuation of application 23/09/2010’ dated 24 September 2010.
The costs of the plaintiff’s summons on originating motion filed 8 September 2010 and adjourned from 24 September 2010 will be reserved. I will hear the parties on the question of the costs of the appeal.
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