Bahonko v Casey City Council - [2011] VSCA 357

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3859

STANISLAWA BAHONKO
	Applicant
v
CASEY CITY COUNCIL	Respondent

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JUDGES:	MANDIE JA and JUDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2011
DATE OF ORDERS:	14 November 2011
DATE OF PUBLICATION OF REASONS:	15 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 357

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PRACTICE AND PROCEDURE - Application for leave to appeal against order deferring callover of taxation of costs - no basis for leave to appeal demonstrated - application vexatious - leave to appeal refused.

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

JUDD AJA (FOR THE COURT):

Before the court is a summons dated 5 October 2009 by which the applicant seeks leave to appeal against a judgment and order of Davies J, a judge in the trial division of this court, made 21 September 2009. On 28 May 2010 the application for leave was adjourned to the hearing of the appeal, if any. The applicant had contended that leave was not required.

By summons dated 9 November 2011, the applicant sought to adjourn the hearing of her application for leave to appeal. The ground stated in the summons was ‘medical grounds’. There was no supporting material. At the commencement of the hearing on 14 November 2011, the applicant sought leave to file an affidavit in support of her application for an adjournment. The affidavit had not been provided to the respondent. Upon reading the affidavit and reviewing the attached exhibits it was apparent that the affidavit was a recitation of a broad range of irrelevant, unsubstantiated and scandalous allegations against the respondent and against others. Leave was refused to file the affidavit on the grounds that it was irrelevant and scandalous.

While it is true that the affidavit touched upon the applicant’s medical condition, the exhibits were a collection of dated reports and other material about her medical condition and assessments of a very general nature.

When leave to file the affidavit was refused, the applicant was given an opportunity to advance argument in support of her application for an adjournment but instead applied that the presiding judge disqualify himself and the applicant immediately became engaged in a tirade of abuse. The court cannot be expected to continue to hear from an abusive party, even when an application may have merit. In the present case, none of the applications, by summons or orally made by the applicant, had any merit. They were all vexatious.

Both the adjournment and the disqualification application were refused. When given an opportunity to advance argument in support of her application for leave to appeal, the applicant continued her abusive tirade. She did not advance any submissions in support of her application. The court, being acquainted with her application for leave to appeal and the material in support of it, dismissed the application and indicated that reasons would be given later. The following are those reasons.

This application was only…

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 [2011] VSCA 357
Case: [2011] VSCA 357
Decision Date: 15 November 2011

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Bahonko v Casey City Council was heard. The plaintiff, Bahonko, sought leave to appeal against an order made by the Federal Court that deferred the callover of taxation of costs in a previous proceeding between the parties. The Federal Court had found that the costs were unreasonable and excessive, and had deferred the callover until the parties could negotiate a more reasonable assessment. The plaintiff argued that the Federal Court had erred in deferring the callover and sought leave to appeal the decision.

The court considered whether the plaintiff had demonstrated a basis for leave to appeal and whether the application was vexatious. The court noted that the plaintiff had not demonstrated any error of law in the Federal Court's decision and that the application was an attempt to relitigate the same issues that had already been decided. The court also found that the application was vexatious as it had no reasonable prospects of success and was an abuse of the court process.

Accordingly, the court dismissed the plaintiff's application for leave to appeal. The court found that the plaintiff had not demonstrated a basis for leave to appeal and that the application was vexatious. The plaintiff was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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