Bahonko v Maclean
[2012] VSC 352
•7 August 2012
| 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 hearing today (as I am told by Ms Bahonko and by Mr Ely) Magistrate Maclean has simply adjourned the matter until tomorrow. The police witnesses have been sent away until tomorrow but unless an order is made by this Court today, the matter will proceed tomorrow.
In Rozenes v Beljajev[1] it was said by the Appeal Division of this Court that:
In the criminal jurisdiction an important consideration is the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. That consideration would apply with particular force “where proceedings are in charge of a judge who, at this very moment, is beginning the trial”: Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198 at 200 per Kirby J.
[1](1995) 1 VR 533, 571.
Then reference was made by the Appeal Division to a number of cases at the highest level including the decision of Sankey[2] in the High Court; and the Appeal Division went on to say that:
These considerations apply whether the application be for a declaration or other form of judicial review such as relief in the nature of certiorari.
[2]Sankey; R v Iorlano (1983) 151 CLR 338.
In effect what Ms Bahonko would be seeking in this proceeding would be judicial review in the nature of certiorari but in the meantime she seeks an interlocutory injunction to preserve the status quo pending such an application. Nonetheless, either at a final hearing stage or today at this interlocutory application stage, the effect of granting the relief sought by Ms Bahonko would be to fragment the ordinary and orderly process of the criminal proceeding in the Magistrates’ Court.
In my view what was said by the Appeal Division in Rozenes v Beljajev applies equally – and indeed I would say with greater force – in respect of a summary proceeding in the Magistrates’ Court, bearing in mind that in this State provision is made for a de novo appeal from any decision of a magistrate in a criminal proceeding to the County Court and provision is made for a stay of any sanction or penalty that might be imposed in the Magistrates’ Court. It is highly unlikely that if Ms Bahonko were to be convicted of these charges she would be unable to obtain a stay of the orders made by the Magistrates’ Court. It does not appear that Ms Bahonko has produced any evidence that she has prior convictions or that there is a strong likelihood that she would be immediately imprisoned as a result of these two charges.
In any event, even if that were wrong, as I say, there is provision for a stay. Not only is there provision for a stay pending appeal to the County Court but there is provision in this State for an application to be made, after a summary criminal decision is made, by way of appeal to this Court under the Criminal Procedure Act 2009 on a question of law. So those two options are available to a person in the position of Ms Bahonko.
It seems to me therefore that it would take something most special or exceptional to warrant interference by this Court at this stage, this very late stage. Ms Bahonko brings this application effectively at the last minute.
I have read carefully all of the material that Ms Bahonko has relied upon in support of her proposed summons. I am not persuaded that there is anything in it that meets the necessary requirement. I am not persuaded that there is any serious question to be tried in relation to Ms Bahonko’s claims that she has been denied fairness or justice in the Magistrates’ Court.
As the prosecutor submits, much of the language used in Ms Bahonko’s submissions and affidavits is extreme and it does nothing to inspire confidence that an accurate or moderate account of what occurred in the Magistrates’ Court has been provided by Ms Bahonko. Ms Bahonko has not contradicted the information given to me by the prosecutor, Mr Ely, in his submissions today about the course of progress below which, as I say, involve, from what he says, very careful and patient attention to Ms Bahonko’s applications in the Magistrates’ Court, including by Ms Maclean in particular who is the magistrate to whom the matter has been allocated.
For those reasons it would be pointless to grant Ms Bahonko leave to bring this proceeding. That satisfies the test in Philip Morris v Attorney-General and Lindsey,[3] in that, if leave were given, the proceeding would be foredoomed to fail and therefore to bring it would be an abuse of the process of the court.
[3](2006) 14 VR 538. Strictly speaking, the onus is on the applicant for leave to satisfy the Court that the proposed proceedings will not be an abuse of the process of the Court: Supreme Court Act 1986, s 21(4).
In effect, if I were to grant leave, the matter would, so far as any relevant relief is concerned, have to be heard and determined today. I, having read everything and heard everything Ms Bahonko has put forward, would not grant any orders that would interfere with the proceeding in the Magistrates’ Court nor would I grant any of the other injunctions sought in the summons. Hence I can know with certainty that the proceedings would be foredoomed to fail, because that is the view which I would adopt if I were to grant leave in this case. Hence it is not appropriate to grant leave and leave is refused.