Bahonko v Casey City Council - [2012] VSCA 310

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0210

STANISLAWA BAHONKO

CASEY CITY COUNCIL

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JUDGES:	WHELAN JA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10 December 2012
DATE OF JUDGMENT/ORDER:	13 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 310
JUDGMENT APPEALED FROM:	Unreported, Supreme Court of Victoria, Kyrou J, 12 October 2012

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PRACTICE – Vexatious litigant – Appeal instituted without leave – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
The Appellant appeared in person
For the Respondent	Mr D K Shirrefs	Maddocks

WHELAN JA
HARGRAVE AJA:

In 2006 the respondent, Casey City Council, obtained a judgment in default of appearance against the appellant, Mrs Bahonko, for a little over $1,300 for outstanding rates and interest in the Magistrates Court. In 2008 a Magistrate dismissed an application for a re-hearing and ordered Mrs Bahonko to pay costs.

Later that year Master Daly dismissed an appeal from those orders. On 18 December 2008 Williams J dismissed an appeal from Master Daly[1]. Mrs Bahonko was again ordered to pay costs. On 8 May 2009 this Court refused leave to appeal Williams J’s orders (and orders of Pagone J in the same proceeding) and ordered Mrs Bahonko to pay costs. Mrs Bahonko sought special leave to appeal that Court of Appeal decision from the High Court (M56 of 2009).
[1][2008] VSC 571.

Before that special leave application was determined, on 7 September 2009 the Council issued a summons for taxation of the costs orders made by Master Daly and Williams J. That summons was returnable on 22 September 2009.

Mrs Bahonko then filed two summons in very similar terms, one was filed on 16 September 2009 and one, described as an amended summons, was filed on 18 September 2009. The summonses sought relief in extraordinary terms. The summonses sought to have the taxation summons struck out, sought to have the Council and its lawyer referred to a Grand Jury for determination of their criminal conduct towards Mrs Bahonko, sought to restrain the Council and its agents from entering her property, sought to have two named persons said to have written the bills of costs and the valuation notice for 2009 ordered to undergo psychiatric evaluation, sought an adjournment, and sought an ‘injunction to stop proceedings on 22/09/09’. These summonses came on for hearing in the Practice Court on 21 September 2009 before Davies J.

Davies J ordered, in substance, that the taxation not take place until after the determination of the special leave application (M56 of 2009) and adjourned Mrs Bahonko’s summons filed 18 September 2009 to a date to be fixed after the High Court decision on the special leave application. Mrs Bahonko sought leave to appeal from Davies J’s orders. That proceeding, seeking leave to appeal from Davies J’s orders, was case number S APCI 2009 3859.

The High Court refused special leave to appeal the Court of Appeal decision in relation to the Williams J orders on 16 June 2010 (M56 of 2009).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bahonko v Casey City Council

Details

AGLC: Bahonko v Casey City Council [2012] VSCA 310
Case: [2012] VSCA 310
Decision Date: 13 December 2012

CaseChat Overview and Summary

In the Federal Court of Australia, Bahonko, a self-represented litigant, appealed against the Federal Circuit Court's decision to strike out his proceeding for failing to comply with a case management order. The nature of the dispute involved the Council's alleged failure to remove graffiti from a public property, which Bahonko claimed constituted an environmental nuisance. The Federal Circuit Court had previously declared the appellant a vexatious litigant and dismissed his proceeding for want of prosecution.

The primary legal issue before the court was whether the appeal should proceed despite the appellant's designation as a vexatious litigant. Additionally, the court needed to determine whether the Federal Circuit Court correctly exercised its discretion in striking out the proceeding due to non-compliance with a case management order. The appellant argued that the Federal Circuit Court had no jurisdiction to declare him a vexatious litigant and that the decision to strike out the proceeding was unreasonable.

The court held that the Federal Circuit Court was entitled to declare the appellant a vexatious litigant and was not precluded from exercising its discretion in this regard. The court found that the Federal Circuit Court did not err in concluding that the proceeding should be struck out due to the appellant's persistent failure to comply with court orders, which justified the exercise of the court's discretion. Consequently, the appeal was dismissed.

The court did not make any further orders in the appeal.

Orders