Bahonko v Maclean - [2012] VSC 352

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2010 4919

STANSILAWA BAHONKO	Plaintiff
v
JAN MAREE MACLEAN	Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2012
DATE OF JUDGMENT:	7 August 2012
CASE MAY BE CITED AS:	Bahonko v Maclean
MEDIUM NEUTRAL CITATION:	[2012] VSC 352

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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to bring proceedings – Proposed proceedings would interrupt current hearing of summary criminal prosecution – Application made very late – No sufficient grounds shown – Proposed proceedings doomed to failure and so would be an abuse of the process of the Court – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	In Person
For the defendant	No appearance
For a proposed defendant, Police Prosecutor Stephen Ely	In Person

HIS HONOUR:

This is an application by Ms Bahonko, who is a declared vexatious litigant under s 21 of the Supreme Court Act 1986, for leave to commence a proceeding in this Court in accordance with the draft summons which she has provided to the Court dated 2 August 2012.

In the summons she would seek an injunction against Magistrate Maclean to prevent her from sitting to hear two criminal proceedings which have been brought against Ms Bahonko and which were listed for final hearing together today, 7 August 2012. In addition, she would seek an injunction against Chief Magistrate Ian Gray from “obstructing a proper administration of justice”.

She would also seek an injunction against the police prosecutor, Mr Stephen Ely, from further acting in that matter and injunctions against a host of other persons said to be listed in the schedule to the summons, including the Attorney-General and others, in relation to a suggestion in the relevant paragraph that they have engaged in perversion of justice and wrongful prosecution of her; and references are made to other proceedings that Ms Bahonko has been involved in.

This is a matter which Ms Bahonko agrees has been on foot in the Magistrates’ Court since May 2011. It involves one charge of resisting police and one charge of assault. It is a summary criminal proceeding in the Magistrates’ Court. The essence of the dispute seems to be that Ms Bahonko contends that she has been denied an ability or capacity or right to subpoena witnesses, including medical witnesses, whom she wishes to have subpoenaed, and she also says she is not presently medically fit to defend the proceedings. The matter has been the subject of several mentions and interlocutory contests in the Magistrates’ Court including before Magistrate Bakos and Magistrate Maclean and the matters now raised by Ms Bahonko have been raised by her before those magistrates and they have nonetheless proceeded in such a way as to bring about the fixing of the matter for hearing today on a two-day or three-day basis. After hearing that Ms Bahonko was to come to this Court to seek an injunction in respect of the…

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 Maclean

Details

AGLC: Bahonko v Maclean [2012] VSC 352
Case: [2012] VSC 352
Decision Date: 7 August 2012

CaseChat Overview and Summary

The case of Bahonko v Maclean involved an application by the appellant, Bahonko, to the court for leave to bring proceedings against the respondent, Maclean. The application was made during the course of a summary criminal prosecution hearing against Bahonko. The court was asked to determine whether it should grant permission for Bahonko to commence a new set of proceedings against Maclean, which would have the effect of interrupting the current hearing. The primary issue before the court was whether the application was made in a timely manner and whether there were sufficient grounds to justify interrupting the current criminal proceedings.

The court held that the application was made very late, and the appellant had not shown sufficient grounds for the proposed proceedings. The court was of the view that the proposed proceedings were doomed to fail and, as such, would constitute an abuse of the court's process. The court noted that the appellant had been previously identified as a vexatious litigant, and the proposed proceedings would not only interrupt the current criminal hearing but also add to the existing burden on the court's resources. The court concluded that the application should be refused as it was not in the interests of justice to grant leave for the proposed proceedings.

In light of the above, the court refused the application for leave to bring proceedings against Maclean. The court emphasised that the decision was not a reflection on the merits of the proposed proceedings but rather a consideration of the timing and the lack of sufficient grounds for the application. The court also highlighted the need for litigants to act in a manner that is fair and reasonable, particularly in cases where they have been previously identified as vexatious litigants. The court's decision was based on the balance of convenience and the need to ensure that the court's resources are not wasted on proceedings that are unlikely to succeed.

Orders