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:

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.

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.

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.

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.

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.

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…

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.

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Details

Case: [2009] VSC 73
Decision Date: 10 March 2009

CaseChat Overview and Summary

The matter of Bahonko v Casey City Council involved the appellant, Bahonko, seeking to compel the respondent, Casey City Council, to produce certain documents. The appellant sought to issue a subpoena through the Court of Appeal Registry, which was refused. In response, the appellant made an ex parte oral application to the Court of Appeal, seeking to overturn the refusal. The Court of Appeal was required to determine whether it should issue the subpoena in these circumstances.

The central legal issue before the court was whether the documents sought were relevant to the hearing of the leave to appeal against the orders previously made in the Practice Court. The court had to consider the scope of the subpoena power, particularly in the context of appeals and the relevance of documents to the appeal's merits. The court also needed to balance the appellant's right to access documents necessary for their appeal against the respondent's right to avoid unnecessary disclosure.

The court held that the documents sought were not relevant to the hearing of the leave to appeal against the orders previously made in the Practice Court. The court reasoned that the relevance of documents to an appeal is determined by their connection to the grounds of appeal and their potential to assist in the determination of those grounds. The court found that the documents in question did not meet this threshold, as they were not pertinent to the issues being appealed. Consequently, the court dismissed the ex parte application, affirming the Registry's decision not to issue the subpoena.

The court's decision underscored the importance of ensuring that the subpoena power is exercised judiciously, particularly in the context of appeals. The court's ruling emphasised that only documents directly relevant to the appeal's grounds should be compelled. The court's decision in this case provides guidance on the relevance threshold that must be met for documents to be compelled in the context of an appeal.

Orders