Bahonko v Casey City Council

[2009] VSC 73

IN THE SUPREME COURT OF VICTORIA Not Restricted

IN THE COURT OF APPEAL

PRACTICE COURT

No. 3906 of 2008

STANISLAWA BAHONKO	Applicant
v
CASEY CITY COUNCIL	Respondent

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2009
DATE OF JUDGMENT:	10 March 2009
CASE MAY BE CITED AS:	Bahonko v Casey City Council
MEDIUM NEUTRAL CITATION:	[2009] VSC 73

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Subpoena – refusal by Court of Appeal Registry to issue subpoena – ex parte oral application to overturn the refusal – application dismissed on ground the documents sought are not relevant to the hearing of leave to appeal against orders previously made in the Practice Court.

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APPEARANCES:	Counsel	Solicitors
The Applicant in person, assisted by Geraldine Gray of Counsel (duty barrister)
No appearance for the Respondent

HIS HONOUR:

1. Ms Bahonko attended the Practice Court on the afternoon of Friday, 6 March 2009 and made an ex parte oral application for an order overturning the refusal of the Court of Appeal Registry to issue a subpoena to Adem Somyurek MP[1] to produce the following documents to the Prothonotary on 13 March 2009 at 9.30am:

1.All files of Ms Stanislawa Bahonko who had been attending your office in June – July 2004 with request that you report her complaints of assault of 6/05/04 to Vic. Parliament.

2.A sworn statement stating your involvement and action taken.

[1]Although the subpoena refers to Mr Somyurek as “Adem Samyurek”, other documents on the Court file contain the spelling of the surname that I have adopted.

1. Ms Bahonko was assisted before me by Geraldine Gray of counsel pursuant to the Duty Barristers Scheme.  However, Ms Bahonko did most of the talking.

1. Ms Bahonko told me that she required the documents listed in the proposed subpoena for her application to the Court of Appeal for leave to appeal against two decisions of judges in the Practice Court, namely the decision of Pagone J dated 18 November 2008[2] and the decision of Williams J dated 18 December 2008.[3]

   [2]Bahonko v City of Casey Council.

   [3]Bahonko v Casey City Council [2008] VSC 571.

1. The relevant facts are set out in the abovementioned decisions and therefore it is not necessary for me to provide anything more than an outline.

1. On 3 August 2006, the Casey City Council (“Council”) obtained a default judgment against Ms Bahonko in the Magistrates’ Court at Melbourne in respect of unpaid rates. Ms Bahonko’s application under s 110 of the Magistrates’ Court Act 1989 (Vic) (“MC Act”) to have the matter reheard was dismissed by an order made on 17 September 2008. Ms Bahonko appealed to this Court from the dismissal of her application for a rehearing. She also gave notice of a constitutional matter. The Council applied orally to have the appeal dismissed.

1. On 29 October 2008, Master Daly (as her Honour then was) adjourned the Council’s application to 19 November 2008 and dismissed Ms Bahonko’s oral application for the matter to be referred to a judge on the ground that the Master did not have jurisdiction to hear the matter.

1. Ms Bahonko appealed against the Master’s order to the Practice Court and that appeal was dismissed by Pagone J on 18 November 2008.  His Honour held that Master Daly had jurisdiction to hear the matter and had not exhibited any bias against Ms Bahonko.

1. At the adjourned hearing before her on 19 November 2008, Master Daly dismissed Ms Bahonko’s appeal from the Magistrate’s order of 17 September 2008 on the basis that it was an interlocutory order and therefore an appeal was not available under s 109 of the MC Act. The Master also held that Ms Bahonko’s notice of appeal did not identify a question of law on which the appeal was brought.

1. Ms Bahonko appealed against Master Daly’s order of 19 November 2008 to the Practice Court and on 18 December 2008, Williams J dismissed the appeal on the basis that the Master’s decision was correct.

1. Ms Bahonko’s application to the Court of Appeal for leave to appeal against the orders of Pagone J and Williams J is due to be heard on 13 March 2009.

1. Ms Bahonko informed me that at the hearing of her application for a rehearing, Kevin Bradford, who became mayor of the Council in 2006, gave evidence on behalf of the Council.  She told me that Mr Bradford’s evidence that he did not know about Ms Bahonko’s financial circumstances was false because she had disclosed this information to him during an interview in the office of Mr Somyurek in June – July 2004.  Ms Bahonko told me that Mr Somyurek was her local member of parliament and that she visited his office in June – July 2004 to complain about an assault that had taken place on 6 May 2004 and to ask him to raise the matter in parliament.  Ms Bahonko told me that Mr Somyurek arranged for Mr Bradford to interview her about her complaint in Mr Somyurek’s office. 

1. Ms Bahonko informed me that she needed the documents listed in the proposed subpoena because they will assist her application for leave to appeal.

1. 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 ex parte application is refused.

1. When I heard Ms Bahonko’s application late in the afternoon of 6 March 2009, I raised the following matters briefly:

(a)whether the proposed subpoena properly described existing documents as distinct from requiring the creation of new documents; and

(b)whether the fact that Mr Somyurek is a member of parliament attracted any parliamentary privilege in relation to the proposed subpoena.

1. In light of my conclusion in paragraph 13 of this judgment, it is not necessary for me to express a view on these matters or on whether Ms Bahonko’s application was properly brought in the Practice Court.