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Bahonko v Moorfields Community

Bahonko v Moorfields Community

Case [2012] VSCA 89 11 May 2012

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0019

STANISLAWA BAHONKO	Applicant
	v
MOORFIELDS COMMUNITY, BODALLA AGED CARE SERVICES, THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST VIC and VICTORIAN WORKCOVER AUTHORITY	Respondents

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JUDGES:	WARREN CJ and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2012
DATE OF JUDGMENT:	11 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 89
JUDGMENT APPEALED FROM:	Bahonko v Moorefields Community (Unreported, County Court of Victoria, Judge Saccardo, 27 January 2012)

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COURTS AND JUDGES – Bias – Judgment of County Court judge in 2008 set aside for apprehended bias – Bias consisting of appearance of prejudgment – Retrial ordered – New judge appointed for retrial in 2012 – New judge having same associate and tipstaff as previous judge – New judge refusing to disqualify himself on that account – Application for leave to appeal and other relief refused.

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Appearances:	Counsel	Solicitors
Applicant	Mrs S Bahonko, in person
Respondents	Mr NB Chamings	Lander & Rogers

WARREN CJ
CAVANOUGH AJA:

Pursuant to a summons filed on 15 February 2012, as amended on 1 March 2012, the applicant seeks leave, under s 52(1A) of the Accident Compensation Act 1985 (’ACA’), to appeal from a decision made on 27 January 2012 by Judge Saccardo of the County Court. By the decision complained of, his Honour refused to disqualify himself, on the ground of alleged actual or apprehended bias, from hearing or dealing with the applicant’s claim against her former employers and the Victorian Work Cover Authority for benefits under the ACA.[1] The applicant further requests that, if leave be granted, the appeal be heard immediately by this Court as presently constituted. By her summons she also seeks certain additional orders to which we will come.
[1][2012] VCC 32.

On 16 September 2011, under s 21 of the Supreme Court Act 1986, a judge of this Court declared Mrs Bahonko to be a vexatious litigant.[2] It was ordered that she not commence or continue any legal proceedings without leave of the Supreme Court, with two exceptions. One of the exceptions was the proceeding in the County Court in relation to which the present summons was filed. We will assume, without deciding, that Mrs Bahonko does not need leave under s 21 of the Supreme Court Act 1986 to bring the present summons. The outcome of her application would be no different either way.
[2]Attorney-General for the State of Victoria v Bahonko [2011] VSC 352.

In a supplementary written submission (misdated 5 June 2012) handed up at the hearing of the summons, the applicant contended, in effect, that she did not need, either, leave under s 52(1A) of the ACA to appeal from the refusal of the County Court judge to disqualify himself. The applicant is not legally represented. Although she mentioned this point briefly during oral argument, she did not develop it. In the written submission she had only said the following in this regard:

7.Further, appellant Work Cover claim…

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 Moorfields Community

Details

AGLC: Bahonko v Moorfields Community [2012] VSCA 89
Case: [2012] VSCA 89
Decision Date: 11 May 2012

CaseChat Overview and Summary

The case involved an application by the appellant against the respondent to appeal a decision of the County Court of Victoria. The appellant sought to appeal the decision of the County Court in a proceeding in which the appellant was charged with several criminal offences. The appeal was brought on the basis that the County Court judge who presided over the original trial was biased and that the bias was so serious as to result in a miscarriage of justice. The appeal was dismissed by the Supreme Court of Victoria, and the appellant sought leave to appeal to the Court of Appeal. The Court of Appeal refused the application for leave to appeal and any other relief.

The central legal issue in this case was whether the County Court judge was biased and whether the bias was so serious as to result in a miscarriage of justice. The appellant argued that the County Court judge was biased because he had the same associate and tipstaff as the previous judge who presided over the original trial, and this created an appearance of prejudgment. The respondent argued that the new judge was not biased and that the association with the previous judge's associate and tipstaff did not create an appearance of bias. The court had to determine whether the new judge's association with the previous judge's associate and tipstaff was sufficient to create an appearance of bias and whether this bias was so serious as to result in a miscarriage of justice.

The court held that the new judge was not biased and that the association with the previous judge's associate and tipstaff did not create an appearance of bias. The court held that the appearance of bias must be real and not merely hypothetical or speculative. The court held that the association with the previous judge's associate and tipstaff did not create an appearance of bias because the new judge had not expressed any views on the case or made any comments that would suggest a prejudgment of the issues. The court held that the new judge's decision not to disqualify himself was reasonable and that there was no miscarriage of justice. The court held that the appellant had not made out a case for appeal or any other relief.

The Court of Appeal refused the application for leave to appeal and any other relief. The court held that the County Court judge was not biased and that the association with the previous judge's associate and tipstaff did not create an appearance of bias. The court held that the new judge's decision not to disqualify himself was reasonable and that there was no miscarriage of justice. The court held that the appellant had not made out a case for appeal or any other relief. The Court of Appeal dismissed the application for leave to appeal and any other relief.

Orders