Bahonko v Attorney-General for the State of Victoria

[2011] VSCA 208

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0093

STANISLAWA BAHONKO
	Applicant
v
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Respondent

---

JUDGES:	HANSEN JA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2011
DATE OF JUDGMENT:	22 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 208
JUDGMENT APPEALED FROM:	[2011] VSC 244 (J Forrest J)

---

PRACTICE AND PROCEDURE – Adjournment – Injunction – Appeal deemed abandoned under rules – Leave to appeal – Injunction varied – Summons otherwise dismissed.

---

APPEARANCES:	Counsel	Solicitors
The applicant appeared in person
No appearance by the respondent

HANSEN JA:

1. The Court has before it today an amended summons dated 18 July 2011 brought by the applicant, Stanislawa Bahonko, against the Attorney‑General for the State of Victoria. They are the parties to a proceeding in this Court brought by the Attorney‑General for a declaration that the applicant, Ms Bahonko, is a vexatious litigant. That application is made, of course, pursuant to s 21 of the Supreme Court Act 1986.  The proceeding was commenced on 8 September 2010.

1. The proceeding came before a judge in the Trial Division on 6 June last.[1]  On that occasion the Attorney‑General was represented by counsel, and Ms Bahonko was represented by counsel arranged through the Victorian Bar’s Duty Barrister Scheme to seek an adjournment based on materials as to her then state of health and inability to be present at court that day.  It was, as Ms Bahonko has emphasised and as we appreciated from the materials, an appearance that was limited to that purpose.

   [1]The Attorney-General for the State of Victoria v Bahonko [2011] VSC 244.

1. The point of Ms Bahonko emphasising the limited nature of counsel’s brief was that he did not generally represent her in the proceeding.  The significance of this is in relation to the injunction which his Honour granted and to which I will refer in a moment.

1. What his Honour ordered that day was this. First, he adjourned the trial of the proceeding to 27 July 2011, that is next Wednesday. Secondly, he restrained Ms Bahonko until the hearing and determination of the proceeding or further order from commencing or continuing any legal proceeding in this Court, an inferior court or a tribunal constituted or presided over by a person who is a barrister and solicitor of this Court without first seeking and obtaining leave to do so. That injunction follows the terms of s 21(3). Further, his Honour granted to the parties liberty to apply and expressly provided that the injunction did not prevent Ms Bahonko from applying pursuant to that liberty and finally he reserved the costs of the day.

1. On 20 June this year, Ms Bahonko filed a summons bearing date 17 June in which she sought leave to appeal from the adjournment order.  I consider that the terms of the order sought are such that they should be taken to include all of the orders made by his Honour.  In that sense I read the application beneficially in favour of Ms Bahonko. 

1. She further sought that expedition be given to what she refers to as her appeal, that defamatory statements as stated in her supporting affidavit be removed from his Honour’s reasons for judgment (which were published on 8 June 2011), and that the injunction granted by his Honour be set aside.

1. That summons had attached to it directions made by the judicial registrar which stipulated 8 July 2011 as the time within which the respondent was to file and serve any affidavit and submissions. 

1. It is convenient to note that the Attorney‑General has not participated in the hearing of the application today and filed no affidavit or submissions in relation to it.  The Attorney-General’s solicitor provided to the registrar of the court, with a copy to Ms Bahonko, a letter advising that that course would be taken. 

1. Ms Bahonko has today addressed concerns, and objections, as to the failure of the Attorney‑General to file an affidavit in response to her materials and appear today. She did so not only generally but in support of an application (in paragraph 1 of an amended summons dated 18 July 2011) that, in consequence, his proceeding for a declaration under s 21 be dismissed for non-compliance with the above directions. She also added a reliance on non-compliance with:

… the rules of law and justice or/and demonstrated corrupt and criminal conduct and/or contravention of the International Human Rights Conventions ratified by Australia.

1. By paragraph 2 of that amended summons, Ms Bahonko sought that the Attorney‑General’s proceeding be dismissed as premature, vexatious, an abuse of process with no prospects of success, and for want of prosecution. 

1. It may be said immediately that those orders could not be made.  The proceeding of the Attorney‑General has yet to be tried.  It is for the trial judge in the first instance to consider the proceeding upon its merits.  Once there is such a decision, an appeal can be made to this Court by either party, depending upon the result at trial.  Secondly, the non-compliance, as it is called, with the direction for the provision of affidavits and submissions, does not carry the consequence that is sought by Ms Bahonko.  In truth what the directions provided was that if the Attorney‑General wished to file an affidavit and submissions, then the time within which to do so was that specified in the directions.  The consequence was no more than that if the direction was not complied with, the Attorney‑General was out of time if he subsequently determined that he wished to file an affidavit or submissions.  The overriding point is that there was no consequence such as sought by Ms Bahonko, in the event that he did not file an affidavit or address submissions.

1. Thirdly, it could not be said, at this point, that the proceeding ought be dismissed as premature, vexatious, an abuse of process or as having no prospect of success, or for want of prosecution.  This is the Court of Appeal, and in the first instance such an application would be made to a judge or an associate judge of the Trial Division.  There is no reason why in this case the Court of Appeal would entertain such an application without first having the benefit of the judgment of a trial judge.  Fourthly, and more generally, there is no basis, let alone materials, on which the order could be made.

1. It should also be said that following his Honour’s decision, Ms Bahonko filed a notice of appeal which also bears date 17 June 2011.  We have read that notice, as we have read all of the papers put before us.

1. It transpires that the notice of the appeal is taken to have been abandoned by reason of failure to comply with the provisions of the rules concerning appeals.

1. It is to be noted that his Honour’s orders are interlocutory in nature with the consequence that there is no appeal as of right.  The right of appeal only exists by leave.  However, and as Ms Bahonko correctly stated, there is a right of appeal from the grant or refusal of an injunction.  Hence she was entitled, as of right, to appeal against the order granting an injunction but the fact is that under the rules, the appeal is deemed abandoned.

1. For reasons which will become apparent later, I would not accede to the request of Ms Bahonko to do what may be required to validate the appeal.  Moreover, it should be clearly understood that the appeal is not ‘alive’, as is referred to in paragraph 8 of the amended summons.  And as I say, in the circumstances, I would not validate the appeal by extending the time for compliance with the rules, for reasons which I will come to.

1. The application which I will otherwise come to, has been supported by several affidavits of Ms Bahonko made on 17 June and 18 July this year and a further affidavit which she provided to us this morning affirmed on 21 July, that is yesterday.  We have read those affidavits together with the exhibits to them and bear in mind all that is said.  In addition, Ms Bahonko has provided an outline of submissions, one section in handwriting, one section typed, dated 30 June 2011 and to which also we have had regard.

1. I should say too that at the outset of the hearing this morning, Ms Bahonko made several requests which were in the nature of requests for the production of certain materials.  She handed to us the following.  First was a notice to produce addressed to the Prothonotary, the Registrar of the Court of Appeal and the judge to produce the file in the proceeding.  As it was, the file was in court and Ms Bahonko perused it.  Then there was a notice to produce addressed to the Attorney‑General, the Prothonotary, the Registrar of the Court of Appeal and government transcription services to produce transcripts of proceedings in their possession from the proceeding before the judge on 6 June 2011, and to make the transcript available to us today and to Ms Bahonko.  The third document is an application for orders, namely, (1) that transcripts of the proceeding before the judge on 6 June be served on Ms Bahonko immediately via attachment to her email address; (2) the transcripts be provided to the appeal judges; (3) that the transcripts from 31 May 2011 before Tate JA and Whelan AJA in this proceeding be provided to the appellant and to the appeal judges and, (4) that the file in the proceeding be provided to the appellant and the appeal judges for inspection.  It was said that these orders were necessary to ensure the proper administration of justice.

1. Ms Bahonko said that until today those requested to provide a transcript had refused to do so.

1. The fact is, as it became apparent, there is no transcript of the proceeding on 6 June 2011 on the court file and we, and I make this clear, do not have a transcript of the proceeding, have not seen one and so far as we are aware, one does not exist.  But even if it did exist, in my opinion, it would not affect the proper disposition of today’s application.  Furthermore, the request is now made too late in the day.

1. I turn then to the balance of the relief sought in the amended summons.  Paragraph 4 seeks leave to appeal from the part of order 1 ‘that is the date for an adjourned trial’ and refers further ‘to the remaining ruling judgments and orders made on 6 June 2011’.  While that paragraph is expressed a little infelicitously, I take it to be appealing against all of the orders made by his Honour.

1. Then paragraph 5 seeks an order that defamatory statements as stated in Ms Bahonko’s affidavit of 17 June 2011 be removed from his Honour’s reasons of 6 June 2011.  Paragraph 6 seeks the setting aside of the injunctions ordered by his Honour, and the summons proceeds with references to the notice of appeal.  It is unnecessary to further refer to the matter of the notice of appeal.  The amended summons concludes, in paragraph 9, with a request that if the substantive proceeding is not dismissed, the trial fixed for next week be adjourned until the hearing of the appeal from the orders on 6 June and Ms Bahonko’s WorkCover appeal is heard.  It is further sought that a different judge hear the proceeding when it comes on.

1. As to the application by paragraph 9, it is to be said first that Ms Bahonko's appeal is deemed abandoned under the rules and, as mentioned earlier, I do not consider it appropriate to make any order that would validate it.  However, the paragraph also seeks that the substantive proceeding be held over until after Ms Bahonko's WorkCover appeal is heard.  She mentioned that to us this morning and that it is to be heard in this Court in early August, which I understand to be the case.

1. Insofar as one is concerned with the question of timing, that is to say as to whether the trial fixture for next week should be stood over for a period in light of a pending hearing in the Court of Appeal, that is a matter for the trial judge.  That judge will have a better idea than we will or could do now as to the likely duration of the trial and of the extent to which it might impinge upon the ability of Ms Bahonko to prepare herself for the appeal in this Court and it is a matter upon which his or her consideration will be aided by submissions from both parties.

1. As to the application that the trial judge be other than the judge who heard the matter on 6 June, at least in the first instance, that is a matter for him to determine.  Further, there is, in my view, no proper basis upon which, on the materials before us, such an order could be made.

1. The materials that Ms Bahonko relied upon are extensive and they include a substantial raft of allegations against many people, including the judge.  It is unnecessary to set them out in full.  They may be found in the affidavits and exhibits and they were developed, to an extent, by Ms Bahonko this morning.

1. I mention some of the matters only.  One was that the judge should have sent her the transcript of the hearing before him for correction before making his judgment.  Another was that he stated in his reasons for judgment that she suffered paranoia.  The reference may in fact be found in [27] of his Honour’s reasons where the expression is ‘signs of paranoia’.  Ms Bahonko said that was wrong, that she did not suffer paranoia, and complained that this had been published on the internet meaning, I think, that it appeared in the judgment published on the internet.  She said that this was a criminal act and that the judge had defamed her. 

1. Another matter, and to which I have already referred, concerned the limited nature of the appearance of the barrister on her behalf.  She said that the judge wrongly stated that he represented her when he had only been there to produce certain medical information and request an adjournment.  She further said that the judge had contacted Dr Overton without her permission and that in doing so the judge had defrauded her.  She said that the evidence given by Dr Overton to the judge was invalid.  It is to be borne in mind that at least for the purpose of considering the medical evidence and whether an adjournment should be granted, Ms Bahonko was represented before his Honour.

1. I think that it should be said clearly that there is no basis for the florid allegations Ms Bahonko has made concerning the judge.  A careful reading of his reasons for judgment indicates an attentive concern to the matter of the adjournment and to the relevant facts.

1. I turn then to the resolution of the applications.  As I mentioned earlier, this is an interlocutory order that is appealed from and putting aside, for the moment, the question of the injunction as to which Ms Bahonko had an appeal as of right and concentrating upon the other orders, it is necessary, in order that leave to appeal be granted, that it be shown that the relevant decision or order was wrong or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed. 

1. In my opinion that could not possibly be said of the order adjourning the hearing of the proceeding.  The judge granted a very extensive period of adjournment from 6 June until 27 July in order to allow Ms Bahonko time to prepare for the case on the merits and to recover her health.  In my opinion the decision was neither wrong nor attended with doubt such as could warrant it being set aside.  In addition, I am of the view that there is no injustice, substantial or otherwise, in leaving the decision unreversed. 

1. If Ms Bahonko does desire an adjournment of the hearing, she is able to apply to the trial judge if the case is listed on 27 July next, for an adjournment on such grounds and for such time as she may consider appropriate in the circumstances and it is in the power of the trial judge to determine that application as may be considered appropriate in the light of all of the relevant circumstances.

1. Passing over the injunction, it cannot be said of the orders granting liberty to apply and reserving costs that there can be any error, and they warrant no further consideration.

1. That leaves the matter of the request for an order that defamatory statements be removed from the judge’s reasons, and the matter of the injunction. 

1. As to the defamatory statements, I do not accept that there is any substance in this matter.  The 17 June affidavit refers to a number of matters which I have had regard to but I do not consider it necessary to set them out. 

1. As I understood Ms Bahonko, a principal matter of concern was the reference to ‘signs of paranoia’.  The judge, if he considers on perusal of the records of the Dandenong Hospital Emergency Department or by reference to what he was informed by Dr Overton, that the reference is incorrect, he could consider revision of the judgment as may be appropriate.

1. It is not, however, open for this Court to order that a word or two or more be removed from his reasons.  It is the province of an appeal to determine whether a decision is right or wrong in any relevant respect, but that does not extend to a general ability to rewrite a trial judge’s judgment.  That is why, as I say, it is a matter for the judge.

1. That leaves the matter of the injunction.

1. There is a difficulty with the injunction in restraining Ms Bahonko from

commencing or continuing any legal proceeding in this Court.  As thus expressed the injunction prohibits Ms Bahonko from continuing her appeal that is to be heard in this Court in a week or so.  I do not think his Honour could have intended such an effect by his order but on its literal terms that is the effect of the restraint.  Moreover, his Honour’s judgment does not refer to the appeal, which indicates that he was not aware of it.  It seems to me to be appropriate in the better management of the business of the Court to now vary the injunction by excepting the WorkCover appeal.  That should smooth the path to some extent and permit the pending appeal to proceed.

1. Save for the variation to the injunction granted by paragraph 2 of the orders made on 6 June 2011, I would dismiss the amended summons.

ROBSON AJA:

1. I agree with the proposed orders put forward by Hansen JA for the reasons he has given.  In particular I agree with the order concerning the variation of the injunction for the reasons his Honour has given.

1. I seek to add that in my view it was unfortunate that inappropriate allegations were made about the conduct of the trial judge.  I agree entirely with his Honour’s statement that there was no basis for the florid allegations. 

HANSEN JA:

1. The following orders will be made: 

1. The injunction granted by paragraph 2 of the orders made on 6 June 2011 is varied to permit the applicant to continue her pending WorkCover appeal (proceeding no. S APCI 2008 3832) in the Court of Appeal.

2.        The amended summons is otherwise dismissed.

‑ ‑ ‑