Bahonko v Moorfields Community and Ors (No 5) (Ruling)
[2013] VCC 872
•4 July 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
WORKCOVER DIVISION
Case No. CI-06-02573
| STANISLAWA BAHONKO | Plaintiff |
| v | |
| MOORFIELDS COMMUNITY | First Defendant |
| BODALLA AGE CARE SERVICES | Second Defendant |
| UNITING CHURCH IN AUSTRALIA | Third Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Fourth Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2013 | |
DATE OF RULING: | 4 July 2013 (Revised) | |
CASE MAY BE CITED AS: | Bahonko v Moorfields Community & Ors (No 5) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 872 | |
RULING
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Subject: ACCIDENT COMPENSATION – application to restrain solicitors from acting
Catchwords: Plaintiff applies to restrain defendants’ solicitors from acting – Dale v Clayton Utz (a firm) [2013] VSC 54 – test for preventing solicitors from acting – incorrect statement in solicitor’s affidavit that plaintiff omitted to provide witness list – statement corrected, albeit with delay – Court not satisfied solicitor deliberately perjured self or that conduct warrants removal
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | - |
| For the Defendant | Mr W Alstergren SC with Mr M J Hooper | Lander & Rogers |
HIS HONOUR:
1 By summons dated 22 May 2013, the plaintiff seeks an order that:
(i) Ms Rachel Kennedy, a partner in the firm of Lander & Rogers, who has the care and conduct of this matter on behalf the defendants;
(ii) The firm of Lander & Rogers Solicitors;
be removed from conducting the defence of this proceeding and be prohibited from any further involvement in the proceeding.
2 On 15 May 2013, I made orders giving directions to the parties as to the filing of affidavit material sought to be relied upon by them in this application. Pursuant to those directions, the parties have filed a number of affidavits which I have read and taken account of in determining the issues which arise in this application. The material contained in those affidavits is a matter of record and I will refer specifically to the content of that material in the course of ruling, only where it is necessary to explain my path of reasoning.
3 The circumstances relevant to the plaintiff’s application may be summarised as follows.
· On 10 April 2013, Ms Kennedy filed an affidavit sworn by her in support of an application (the defendants’ application) that the plaintiff’s proceeding be permanently stayed or alternatively dismissed for want of prosecution.
· In support of that application, Ms Kennedy relied upon the following grounds:
(i)The plaintiff’s repeated failure to attend medical examinations arranged on behalf of the defendants;
(ii)The plaintiff’s “propensity to make numerous leave applications to the Court of Appeal and the High Court against standard orders and to re-litigate previous points and appeals without success”, which it was asserted gave rise to an “unreasonable delay”;
(iii)The failure by the plaintiff to comply with an order made by myself on 21 January 2013 namely:
“The parties are to provide to the Court by 14 April 2013 a list of the witnesses giving evidence in this trial.”
· Paragraph 49 of the affidavit by Ms Kennedy contained the following statement:
“49On 21 January 2013 his Honour Judge Saccardo made a further order that the plaintiff was to provide a list of witnesses she intended to call at the hearing of this matter on 20 May 2013. To date the plaintiff has not provided such a list to the defendants and a search of the County Court’s Court Connect system suggest[s] no such list has been filed with the Court.”
· The defendants’ application was considered by me in the course of a directions hearing on 18 April 2013.
· At that time the plaintiff asserted that she had provided all the documents required of her, including the list of witnesses which she sought to cross-examine, and that those documents were sent by her both by fax and email to the defendants’ solicitors.
· In response to the plaintiff’s position, Mr Chamings of Counsel, who appeared on behalf of the defendants, made the following statement:
“Just for the transcript, my instructing solicitor did not get a list of witnesses on 14 February this year.”
· The following exchange then took place between myself and the plaintiff:
MRS BAHONKO:
“I mean that is quite incorrect. - - -
HIS HONOUR:
How was it sent, Mrs Bahonko?---
MRS BAHONKO:
It was sent by fax a number of times. I have three times faxes and I watch the fax going through with all my eyes, and I sent as an attachment to email as well. So, as a matter of fact, the investigator can go and check Lander & Rogers and Ms Kennedy’s email and see that the email has been sent from me with attachment on that date.
HIS HONOUR:
Do you want to submit to me some proof that you sent the fax?---
MRS BAHONKO:
The proof will be on the email.
HIS HONOUR:
Well, you sent the fax?---
MRS BAHONKO:
I sent the fax and I saw it was going through and I attached as an email, so I did via email and I did via fax.
HIS HONOUR:
Do you want to submit some material for me that proves that you sent an email or a fax?---
MRS BAHONKO:
I can retrieve – I think I can retrieve and, as a matter of fact, this is so important that I am prepared to go to the police and have the email tracked, that she received it.”
· In the course of the directions hearing, I declined to deal with the defendants’ application[1] rather, I adjourned the application, fixing no time for its hearing, and made the following relevant orders:
[1]Transcript (“T) 24, L23
“3Direct that the defendant is at liberty to arrange such medical examinations of the plaintiff as it considers are required for it to meet the allegations raised by the plaintiff in this proceeding. Notice of such appointments is to be given by the defendant to the plaintiff by 29 April 2013.
4This matter is fixed for further directions on 15 May 2013 for the purpose of hearing any application by the plaintiff that she should not be required to attend any of the medical examinations arranged for her by the defendant.”
· On 13 May 2013, the plaintiff filed an affidavit in which she deposed as follows:
“On 14 February 2013 I sent an email to Ms R Kennedy and further pages of that email that shows the content of that email and two attachments named LISTA.doc and LISTB.doc which are the two documents that is the list of plaintiff witnesses and list of witnesses plaintiff wished to cross-examine in fulfilment of Judge Saccardo’s orders And Mrs R Kennedy denied receiving those documents in her Affidavit thus perjury are proven … .”
· On 14 May 2013, Ms Kennedy filed a supplementary affidavit which referred to her affidavit of 10 April 2013 and contained the following statements:
“2At paragraph 49 of my previous affidavit I deposed that I had not received from the plaintiff a list of witnesses she intended to call at the hearing of this matter as per the orders of his Honour Judge Saccardo on 21 January 2013.
3At a directions hearing on 18 April 2013 the plaintiff asserted strongly that she had served upon me a list of witnesses. Based on the strength of her assertions and the submissions to the Court on that day I requested that a search of my email in box be undertaken by my assistant. That search revealed that in fact the plaintiff had served the witness list and a ‘notice to cross-examine’ (sic) upon my by email at 3.10 pm on 14 February 2013.
4Consequently I reviewed my daily diary which shows that on the afternoon of 14 February 2013 I was out of the office attending a conference with an employer in another matter. My recollection is that I left my office at around 1 pm and I know I did not return to the office on that day.
5I say that I did not see the email from the plaintiff on 14 February 2013 as I was not in the office at the time it was sent and thereafter it was overlooked due to the volume of emails I receive on a daily basis.
6I thereby withdraw my assertion at paragraph 49 of my previous affidavit that the plaintiff had not acted in accordance with his Honour Judge Saccardo’s orders in respect of the list of witnesses.
7I assure the Court it was my oversight, was inadvertent and that I have not perjured myself in my previous affidavit as alleged. I apologise for any inconvenience or anxiety my inadvertent error may have caused.”
· In an affidavit dated 15 May 2013, the plaintiff asserted that:
“Ms Kennedy perjured herself again in her affidavit of 14 May 2013 saying that she made inadvertent error and oversight when she sworn that she did not receive my documents on 14 February 2013 when evidence is that it was wilful and premeditated conduct and cannot be oversight as documents were not only attached to email but also faxed and faxes was impossible not to notice since 14 February 2013.”
· On 12 June 2013, Ms Kennedy filed a further sworn affidavit in which she deposed relevantly as follows:
“(i)… I did in fact request my assistant to search my email box on 18 April 2013.
(ii)I intended to clarify the error in my initial affidavit by way of a supplementary affidavit. I discussed doing so with counsel in this matter, Neil Chamings, on leaving the County Court on 18 April 2013. The delay in the filing and service of my supplementary affidavit was due to constraints on my time imposed by the need to attend to other files for which I have care and conduct. Given his Honour’s indication on 18 April 2013 that it was not his intention to deal with the defendant’s application for a stay in this matter (“the stay application”) on 15 May 2013 and as there was no indication from the Court when the stay application would be dealt with, I did not consider filing and serving a supplementary affidavit was required as a matter of urgency.”
(iii)“It was not until the plaintiff served her affidavit of 13 May 2013 that I suspected, notwithstanding the purpose of the directions hearing, that the plaintiff intended to raise the objection of the service of the notice of intention to cross-examine on 15 May 2013. It was on that basis that I felt it prudent to file and serve a supplementary affidavit on 14 May 2013 so that if the Court wished to deal with the matter on 15 May 2013 then there would be material from me before it.”
· In an affidavit dated 12 June 2013, Ms Kennedy’s administrative assistant, Ms Ofka Lanivia, relevantly deposed:
“That on 18 April 2013 Ms Kennedy contacted her by phone and requested that she ‘double check that the plaintiff in this matter had served a notice of intention to cross-examine upon our office’. She asked me to check my email box as well as hers. On reviewing her email box I found an email from the plaintiff dated 14 February 2013 serving such a notice to cross-examine. I told Ms Kennedy on the phone that I found the email.
I recall that prior to her swearing her affidavit dated 10 April 2013 Ms Kennedy asked me whether the aforementioned notice to cross-examine had been served upon this office and I said, to the best of my knowledge that it had not.”
4 Whilst the plaintiff has filed a number affidavits in support of the application she makes which contain repeated assertions that Ms Kennedy has engaged in corrupt behaviour both in this instance and in her conduct of the proceeding generally, and it is the plaintiff’s position that the statements made by her in each of these affidavits are statements of fact, much of the content of the plaintiff’s affidavits is appropriately categorised as involving either:
(i) Assertion;
(ii) Argument; or
(iii) Statements of abuse;
material of that nature has no relevance to the application made by the plaintiff and has been ignored by me.
5 The plaintiff’s affidavit of 29 May 2013 falls exclusively into that category. Having regard to the absence in that affidavit of any relevant statement of fact, and the nature of the allegations made by the plaintiff against the firm of Lander & Rogers, Ms Kennedy and Mr Chamings, I considered it appropriate to make an order in the course of the application which proceeded before me on 25 June 2013 that the affidavit be placed in a sealed envelope which was not to be accessed without further order of myself, reserving the plaintiff liberty to apply to me with respect to that order.
6 In making the statements which I have made as to the content of the plaintiff’s affidavits, I take into account the fact that the plaintiff is a litigant in person and that for her, the distinction between statements of fact on the one hand and assertions or argument on the other is not necessarily easy to comprehend. Nonetheless, it is clear that affidavits which contain both irrelevant and scandalous material should not remain on the Court file where they can be accessed by the public and I am satisfied that the material contained in the plaintiff’s affidavit of 29 May 2013 falls into that category.
Principles to be applied in considering the plaintiff’s application
7 In Dale v Clayton Utz (a firm) [2013] VSC 54, Hollingworth J helpfully set out the approach which should be adopted when considering whether a Court should invoke its inherent jurisdiction to make orders preventing a lawyer from acting in a proceeding, which may be summarised as follows:
(a)The test to be applied is whether a fair minded, reasonably informed member of the public could conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the administration of justice, including the appearance of justice.
(b)The jurisdiction is exceptional and is to be exercised with caution.
(c)Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
(d)The timing of the application may be relevant, in that the cost, inconvenience and impracticality of the requiring lawyers to cease to act may provide a reason for refusing to grant relief.
8 I am satisfied that I should adopt this approach in deciding the application now before me.
9 In the course of her ruling in that instance, Hollingworth J referred to a number of instances in which a court had been required to consider whether an order of the type sought by the plaintiff should be made.
10 It is clear that generally such applications have been founded upon the existence of a previous relationship between the legal practitioner the subject of the application and the party seeking to have that practitioner excluded from being involved in subsequent litigation.
11 I am satisfied however, that in appropriate circumstances, were I to be satisfied that the conduct of a solicitor or a firm of solicitors was such that it should be categorised as being motivated solely for the improper purpose of intimidating a litigant in person, and was such that the continued involvement of the practitioner or legal firm was likely to deny that litigant the ability to properly prepare and present her case, that circumstances could arise which would warrant the making of an order of the type sought by the plaintiff in this application.
12 It is the plaintiff’s primary position:
· That Ms Kennedy deliberately perjured herself by making the statement that the plaintiff had failed to serve the documents which she was obliged to serve by reason of the order made of 21 January 2013; and
· That the gravity of the perjury was compounded by reason of the fact that, if the position contended for was accepted, the plaintiff’s proceeding may have been permanently stayed or dismissed.
13 Insofar as the order of 21 January 2013 required the parties to provide the relevant list of witnesses “to the Court by 14 February 2013” and that there was no obligation upon the parties to serve the list upon each other, the position wrongly deposed to by Ms Kennedy could never have been the basis for an order that the plaintiff’s claim be stayed or dismissed, and for that reason the plaintiff’s perception as to the potential for Ms Kennedy’s misstatement to impact adversely upon her proceeding is misconceived. This would, however, not diminish the seriousness of Ms Kennedy’s misstatement were I to be satisfied that the statement was made by her deliberately for the purpose of misleading the Court as to the behaviour of the plaintiff.
14 It is put by the plaintiff that I should not accept the affidavit evidence of Ms Kennedy or Ms Lanivia for the following reasons:
(i)No evidence has been adduced to corroborate the statement made by Ms Kennedy that she receives a large number of emails in the course of her practice as a solicitor or as to when the relevant email sent by the plaintiff to Ms Kennedy was opened,
(ii)No explanation has been provided by Ms Kennedy and Ms Lanivia as to how Ms Lanivia could have accessed Ms Kennedy’s emails in the absence of Ms Kennedy’s presence on 18 April 2013;
(iii)No issue has been taken by Ms Kennedy as to the statement by the plaintiff that documents were faxed to Ms Kennedy, as well as being transmitted via email, and in this context the statement by Ms Kennedy that she was not aware at the time at which she swore her affidavit that the plaintiff’s documents had been served, is not credible;
(iv)The delay by Ms Kennedy in correcting the false statement made by her in her affidavit is not consistent with the behaviour which would be expected of an “honest lawyer”;
(v)Ms Kennedy should have contacted the plaintiff and raised with her the failure to serve the witness list upon the defendant rather than to have issued the summons of 10 April 2013;
(vi)The behaviour of Ms Kennedy in this instance needs to be seen in the context of a pattern of behaviour which:
·Has been responsible for delaying the finalisation of this proceeding for seven years;
·Has involved the repeated misdescription of the defendants in this proceeding by naming the Uniting Church in Australia as the primary defendant for the purpose of suggesting that the plaintiff was “fighting a religion”, rather than seeking to enforce an entitlement which she has under the provisions of the Accident Compensation Act 1985.
·Involved arranging a medical examination for the plaintiff’s attendance, the timing of which was such that it created a conflict with an order which I had made fixing a date for the hearing of an application by the plaintiff that she should not be required to attend medical examinations arranged on behalf of the defendants;
which behaviour supports the position put by the plaintiff in this application.
15 In the course of a directions hearing dated 28 May 2013, I ruled that when determining this application I would deal only with the position put by the plaintiff that an order should be made preventing Ms Kennedy or the firm of Lander & Rogers from further conduct in the proceeding by reason of the issue raised by the plaintiff in her affidavit of 13 May, namely that Ms Kennedy had perjured herself in making the statement set out in paragraph 49 of her affidavit of 10 April 2013.
16 As a number of the arguments relied upon by the plaintiff have no relevance to that issue, I did not intend to deal with each of them. Having regard, however, to the fact that the plaintiff commenced her proceeding in March 2004, the proceeding was the subject of a number of appeals instituted by the plaintiff in 2006 and 2008, a trial of the proceeding was concluded in July 2008 and the progress of the retrial has been stymied by the plaintiff initiating a number of appeals to the Court of Appeal and the High Court, I am not satisfied that there is any substance in the position put by the plaintiff that the management by Ms Kennedy of this proceeding on behalf of the defendants has been responsible for delaying the finalisation of the proceeding in any relevant way.
17 As to the positions put by the plaintiff which she asserts should lead me not to accept the position put by Ms Kennedy that the misstatement made by her was the result of an error on her part and was not deliberate:
(i) I do not consider that there is any substance in the position taken by the plaintiff that Ms Kennedy was under any obligation to remind the plaintiff of any timetable fixed in the course of a directions hearing in circumstances in which the plaintiff had access to the transcript of the directions hearing and orders made by me. Further, having regard to the timing of the summons in this matter (namely that it was issued some eight weeks after the due date for the filing of the material), I am of the opinion that it can hardly be said that Ms Kennedy did not provide the plaintiff with a substantial leeway as to the time available to her to comply with the relevant order;
(ii) As to the misdescription of the defendants in the heading of documents and the arrangement of a medical examination on a date which was inappropriate given an order which I had made fixing a date for the hearing of an application by the plaintiff that she should not be required to attend medical examinations arranged on behalf of the defendants, I am satisfied that whilst these actions demonstrate an inattention to detail and may be deserving of criticism on the grounds of competence, there is no justification for describing such conduct as being corrupt or as justifying the orders sought by the plaintiff in this application;
(iii) Whilst the plaintiff asserts that the statement by Ms Kennedy to the effect that a senior litigation solicitor receives a large quantity of emails on a daily basis is unconvincing and requires proof; and questions whether the administrative assistant of a solicitor would have access to her principal’s emails, I do not find Ms Kennedy’s statements in this regard to be at all surprising, rather I find them to be persuasive;
(iv) In circumstances in which Ms Lanivia has deposed that prior to swearing her affidavit Ms Kennedy had asked Ms Lanivia whether the relevant documents had been served upon the office and that Ms Lanivia told Ms Kennedy that they had not been so served, I am not satisfied that there is any reason why I should not accept the statement made by Ms Kennedy that she was not aware that the relevant material had been received either by way of fax or email;
(v) Whilst I am of the opinion that Ms Kennedy was guilty of an error of judgment in her delay in rectifying the misstatement made by her in her affidavit and that she should have done so at the earliest possible opportunity, I accept her position that she did not consider the filing of a further affidavit to be a matter of urgency having regard to my adjournment of the summons without fixing a date for the hearing of that summons so as to put into place a procedure to deal with the substantive point raised by the defendants’ application, namely the plaintiff’s repeated failure to attend medical examinations arranged on behalf of the defendants.
18 Finally, in considering whether the position contended for by the plaintiff that Ms Kennedy deliberately perjured herself has been made out, I also take into account the improbability attendant with the plaintiff’s position, bearing in mind:
· That the plaintiff asserts that Ms Kennedy was at all times aware that she had received an email from the plaintiff to which the witness list was attached and had also received a faxed copy of the relevant documents;
· That at the time at which Ms Kennedy made the statement the subject of complaint in this application, she would have had no knowledge as to whether the plaintiff was in a position to prove that she had faxed the relevant material to Lander & Rogers;
· That it was always probable, had an email transfer of the material been made, that proof of that transfer of the type produced by the plaintiff in her affidavit of 13 May 2013 would have been easily available to the plaintiff.
19 In these circumstances I consider it to be most unlikely that Ms Kennedy, an experienced legal practitioner, would have deliberately exposed herself to the risk of being found to have deliberately misled the Court in circumstances in which the proof of a position put by her which she knew was false, was likely to be easily accessed and produced by the plaintiff.
20 For the reasons which I have set out above I am not satisfied that the plaintiff has established that Ms Kennedy deliberately perjured herself in this instance or that her behaviour has been such as would warrant the making of orders of the type sought by the plaintiff in this application.
21 In expressing these reasons I should not be taken to be expressing a view that Ms Kennedy is not deserving of criticism for the inaccurate statement made by her in her affidavit or for her failure to correct that statement at the earliest opportunity. As a senior and experienced litigation lawyer who is managing a proceeding against a litigant in person, the failure by Ms Kennedy:
· to take any action to ensure the accuracy of the statement made by her; and
· to correct her misstatement without delay when it was discovered to be inaccurate
involves conduct of a standard which falls short of that expected of a senior litigation lawyer
22 In my opinion however, these failings are appropriately characterised as falling into the category of a mistake borne by carelessness and or misanalysis and fall far short of and into a completely different category to, conduct constituting perjury or conduct justifying the orders sought by the plaintiff.
23 Ms Kennedy has been involved in the management of this litigation for some years and has an intimate knowledge of the history of this litigation. Given the findings which I have made, I am satisfied that a fair minded, reasonably informed member of the public could not conclude that the proper administration of justice requires that Ms Kennedy or the firm of Lander & Rogers should be prevented from further acting on behalf of the defendants in the interests of the protection of the integrity of the judicial process and the administration of justice, including the appearance of justice.
24 For the reasons set out above I dismiss the plaintiff’s applications.
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