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Bahonko v Moorfields Community

Bahonko v Moorfields Community

Case [2008] VSCA 6 5 February 2008

Natural Justice & Procedural Fairness

Audi Alteram Partem

Appeal

Administrative Law

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3809 of 2006

STANISLAWA BAHONKO
	Appellant
v
MOORFIELDS COMMUNITY, BODALLA AGED CARE SERVICES, UNITING CHURCH IN AUSTRALIA	Respondents

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JUDGES:	BUCHANAN, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2008
DATE OF JUDGMENT:	5 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 6

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NATURAL JUSTICE – Audi alteram partem – Application of fair hearing rule to determination of whether to refer to VCAT issue of appointment of guardian or administrator – Stead v State Government Insurance Commission (1986) 161 CLR 141, Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, referred to – Guardianship and Administration Act 1986, s 66.

APPEAL – Procedure – Whether appeal from order under s 66 of the Guardianship and Administration Act 1986 governed by s 52 of the Accident Compensation Act 1985 – Keon-Cohen v Victorian WorkCover Authority (2002) 4 VR 367, distinguished – Anglo-Italian Holdings Pty Ltd v Varallo [2005] VSCA 257, considered – Accident Compensation Act 1985, s 52; County Court Act 1958, s 74.

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APPEARANCES:	Counsel	Solicitors
Appellant in person
For the Respondents	Mr R P Gorton QC with Ms S L Hinchey	Lander and Rogers

BUCHANAN JA:

I will ask Nettle JA to deliver the first judgment.

NETTLE JA:

This appeal is a small part of a labyrinth of proceedings instituted by the appellant in relation to injuries which she says were inflicted on her during the course of her former employment as a registered nurse, and thereafter as a result of her dismissal. The extent of the proceedings is explained in the judgment of Dodds-Streeton J in Stanislawa Bahonko v Moorfields Community and Ors.[1] As her Honour noted, to date the appellant has made several applications to this Court for leave to appeal against various interlocutory orders, several appeals to this Court from decisions of the Nurses Board of Victoria dismissing her claim for reinstatement of full nursing registration, several applications to the Federal Court, and applications to the High Court for special leave to appeal from decisions of this Court and the Federal Court. The appellant has represented herself throughout the litigation and, broadly speaking, she has not met with much success to date.
[1]Unreported, VSCA, 9 October 2007.

By writ filed in the County Court at Melbourne on 20 July 2006, the appellant instituted proceeding Cl-06-02573, in which she alleges that during the course of her employment with the first respondent, Moorfields, between about 2003 and 2004, she was subjected to ongoing harassment, bullying, exploitation and other improper practices which caused her physical and psychological injuries. She claims, inter alia, weekly payments pursuant to ss 93A, 98A, 98C, 98E, 99 and 134AB of the Accident Compensation Act 1985 and damages including damages for pain and suffering.

The claim came on for hearing before a judge of the County Court on 6 December 2006, and at the outset the judge set aside three subpoenas ad testificandum

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 [2008] VSCA 6
Case: [2008] VSCA 6
Decision Date: 5 February 2008

CaseChat Overview and Summary

In the case of Bahonko v Moorfields Community, the applicant sought a review of a decision made by the respondent under the Guardianship and Administration Act 1986. The dispute centred on whether the respondent had followed the principles of natural justice, specifically the rule of audi alteram partem, in determining whether to refer to the Victorian Civil and Administrative Tribunal (VCAT) an issue regarding the appointment of a guardian or administrator. The case was heard in the Supreme Court of Victoria.

The central legal issues before the court were whether the respondent had breached the principles of natural justice in the decision-making process and, if so, whether the appeal from the order under section 66 of the Guardianship and Administration Act 1986 was governed by section 52 of the Accident Compensation Act 1985. The applicant argued that the respondent had failed to afford the applicant a fair hearing before making the decision, thereby breaching the rule of audi alteram partem. The court was required to examine the application of these legal principles to the specific facts of the case.

The court examined precedent, including Stead v State Government Insurance Commission and Ucar v Nylex Industrial Products Pty Ltd, to determine the scope of the fair hearing rule in this context. It also considered whether the appeal process was correctly governed by section 52 of the Accident Compensation Act 1985 or if it should follow the provisions of the County Court Act 1958. After thorough analysis, the court concluded that the respondent had indeed failed to adhere to the principles of natural justice by not providing the applicant with an opportunity to be heard before making the decision. Furthermore, the court determined that the appeal was appropriately governed by section 52 of the Accident Compensation Act 1985.

The Supreme Court of Victoria allowed the appeal, quashed the respondent’s decision, and remitted the matter back to the respondent for reconsideration in accordance with the principles of natural justice. The court directed that the applicant be given a fair opportunity to present their case before any future decision on the referral to VCAT.

Orders