Bahonko v Crawford

[2012] VSC 567

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S CI 2010 04919

STANISLAWA BAHONKO	Proposed Plaintiff
v
NARELLE ELIZABETH CRAWFORD & MAGISTRATE J.M. MACLEAN	Proposed Defendants

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2012
DATE OF JUDGMENT:	22 November 2012
CASE MAY BE CITED AS:	Bahonko v Crawford
MEDIUM NEUTRAL CITATION:	[2012] VSC 567

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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to bring proceedings – Leave refused – Supreme Court Act 1986 (Vic), s 21(4).

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APPEARANCES:
For the Proposed Plaintiff	Ms S Bahonko in person
For the Proposed First Defendant	Mr A Castle, solicitor
For the Proposed Second Defendant	No appearance

HIS HONOUR:

1. By order made on 16 September 2011, J Forrest J declared Stanislawa Bahonko a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986 (Vic) (“the vexatious litigant order”). Subject to certain exceptions which are not presently relevant, his Honour ordered that Ms Bahonko must not, without leave, commence or continue any legal proceeding (whether civil or criminal) in the Court, an inferior court or any tribunal constituted or presided over by a person who is an Australian lawyer.

1. Prior to the making of the vexatious litigant order, Ms Bahonko had been charged by Constable Narelle Crawford with a series of offences allegedly committed on 7 October 2010. The offences involved assaulting police, resisting police, refusing or failing to state her name and address, wilfully trespassing in a public place and using indecent language in a public place.

1. The charges were listed for hearing in the Magistrates’ Court of Victoria on 7 August 2012. Ms Bahonko applied for leave to commence a proceeding seeking an injunction restraining the hearing of the charges against her. Justice Cavanough refused the application.[1]

   [1]Bahonko v Maclean [2012] VSC 352.

1. The charges were heard as a summary criminal proceeding in the Magistrates’ Court over seven days. The Magistrate found the charges proven and convicted Ms Bahonko on 27 August 2012. She was fined $500 in aggregate for all offences.

1. Ms Bahonko wishes to appeal to this Court against her conviction and $500 fine in this Court, on questions of law pursuant to s 272 of the Criminal Procedure Act 2009 (Vic). Section 272(1) grants a right of appeal, without any leave requirement. In the belief that the vexatious litigant order did not require her to obtain leave to commence her proposed appeal, Ms Bahonko attended at the Court Registry on 7 September 2012 and endeavoured to file a notice of appeal. Registry staff informed her that the vexatious litigant order required her to first obtain leave to file her proposed notice of appeal. Although Ms Bahonko did not agree that she required leave, she completed a summons seeking leave and it was issued by the Registry that day.

1. The summons was listed for hearing on 27 September 2012 in the Practice Court. On that day, Ms Bahonko applied for an order that the Magistrate’s reasons for decision be transcribed and provided to her. That application was granted and the application for leave to commence the proposed appeal, if leave be required, was adjourned for seven days, until 5 October 2012. The application could not be heard on that day and was adjourned. On 23 October 2012, I heard oral submissions from Ms Bahonko and allowed her the opportunity of making any further written submissions to supplement her oral submissions on or before 15 November 2012. She has provided written submissions dated 13 November 2012 with some enclosures.

1. It is convenient to deal first with Ms Bahonko’s contention that, notwithstanding the vexatious litigant order, she does not require leave to file her proposed notice of appeal. Ms Bahonko’s contention must be rejected. In Clemens v Phillip Morris Ltd,[2] Maxwell P and Neave JA considered the issue in relation to an order declaring Mr Clemens a vexatious litigant. The order was in similar terms to the order made against Ms Bahonko. In that case, Mr Clemens wished to appeal from a final order in a County Court proceeding, which does not ordinarily require leave to appeal. The Court held that Mr Clemens required leave to file his proposed notice of appeal:[3]

The commencement of an appeal to this Court from a decision of the County Court is, on any view, the commencement of a proceeding in the Court. Mr Clemens wishes to invoke the appellate jurisdiction of the Supreme Court as conferred by s 74 of the County Court Act, and he wishes to do so by filing the requisite originating process, being a notice of appeal. The same view has been adopted in other jurisdictions in like contexts.

[2][2008] VSCA 48.

[3]Ibid [8] (emphasis in original) (citations omitted).

1. I proceed to consider whether Ms Bahonko should be given leave to file her proposed notice of appeal. Section 21(4) of the Supreme Court Act 1986 (Vic) provides that the Court must not grant leave unless it is satisfied that the proposed proceedings are not or will not be an abuse of process if leave to commence it were given.

1. In Phillip Morris Ltd v Attorney-General for the State of Victoria,[4] Maxwell P stated that the lack of any prospects of success in a proposed proceeding by a vexatious litigant seeking leave to commence that proceeding amounts to abuse of process. In the President’s view, a finding of abuse of process on this ground requires a conclusion that the proposed proceeding is “foredoomed to fail”.

   [4](2006) 14 VR 538, 556 [85].

1. Ms Bahonko contends that her conviction and fine were made as a result of corruption and error of law, and that her proposed appeal is not foredoomed to fail. That contention is rejected. Even allowing for the fact Ms Bahonko is unrepresented, the proposed grounds of appeal are in my view hopeless and foredoomed to fail. Her proposed notice of appeal contains many unsupported assertions expressed in extreme language. No particulars raising any arguable legal error are given.

1. Apart from corruption, Ms Bahonko wishes to contend that she was denied natural justice or procedural fairness, that the findings, rulings and orders of the Magistrate are plainly unreasonable and cannot be supported by the evidence, that the Magistrate did not answer “primary and preliminary questions of law”, that the Magistrate acted corruptly, that the Magistrate failed to comply with rules of evidence, that her conduct as demonstrated on CCTV footage did not meet the necessary criteria for an assault, that she was a victim of police violence who was engaged in “instinctive involuntary self-defence”, that she bears no legal responsibility for her actions because of mental incapacity at the time of the alleged offences, and actual bias by the Magistrate. There are many other assertions in the proposed notice of appeal which are plainly unsustainable and need not be mentioned.

1. I have read the reasons for decision of Her Honour Magistrate Maclean given on 27 August 2012 as recorded on the transcript. They are unremarkable and certainly do not show any error of law such as any of the wider ranging matters alleged by Ms Bahonko. I am not satisfied that any arguable error at all emerges from any of the documents filed by her or decisions relied on by her. I am satisfied that the proposed appeal is hopeless and foredoomed to fail.

1. By the written submissions dated 13 November 2012, Ms Bahonko has revisited some arguments raised in the notice of appeal and has added some matters. The first question as set out in the submissions suggests, as I understand it, that the prosecution was a “shame prosecution” by Victoria Police and Irish organised crime. Again, the Magistrate is accused of corrupt behaviour, and the prosecution is alleged to be victimisation of Ms Bahonko and religious persecution. The written submission goes on to refer to crimes against humanity, genocide, mental torture, discrimination, racism and harassment. It is claimed that Ms Bahonko was attacked by the police officers without warning, and that there has been a miscarriage and perversion of justice. It is claimed that she is subject to genocide, and that she acted on instinct and unconsciously. She also claims that she was defending herself. Various technical matters are raised without any foundation.

1. In my view, the arguments presented in the written submission do not take the previous arguments any further. They are without merit, highly implausible and are foredoomed to failure as are the grounds of the proposed notice of appeal and the arguments presented orally.

1. In Bahonko v Moorfields Community & Ors,[5] Warren CJ and Cavanough AJA said in respect of Ms Bahonko’s proposed appeal in that case:[6]

There is absolutely nothing in Mrs Bahonko’s material to justify the making of the various allegations of corruption and deliberate wrongdoing to which we have referred. Her allegations are not only scandalous; they are pitched at a high level and are conclusionary in nature. They are not properly particularised. They can be seen on their face to be highly implausible. To the extent, if any, that they represent allegations of primary fact, this Court is not obliged to accept them merely because the respondents have taken a neutral attitude. No court or tribunal is bound to accept uncontradicted evidence if it is in itself inherently improbable and unreasonable or inconclusive and unconvincing.

[5][2012] VSCA 89.

[6]Ibid [20] (citation omitted).

1. Those observations apply with equal force to the proposed appeal in this case.

1. Accordingly leave to commence or continue these proceedings is refused.