Bahonko v Moorfields Community & Anor

[2007] HCATrans 117

[2007] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M152 of 2006

B e t w e e n -

STANISLAWA BAHONKO

Applicant

and

MOORFIELDS COMMUNITY

First Respondent

BODALLA AGED CARE SERVICES

Second Respondent

UNITING CHURCH OF AUSTRALIA

Third Respondent

Application for extension of time

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 20 MARCH 2007, AT 12.31 PM

Copyright in the High Court of Australia

MS S. BAHONKO appeared in person.

MR R.P. GORTON, QC:   May it please the Court, I appear with MS B.Y. KNOESTER for the defendants.  (instructed by Lander & Rogers)

HIS HONOUR:   Yes.  That is all three, is it?

MR GORTON:   Yes, your Honour.

HIS HONOUR:   Yes, thank you, Mr Gorton.  Ms Bahonko, I have read a draft of what is, I fear, an imperfect transcript of the proceedings before Justice Crennan.  Can I just understand where we are up to so that we all get off on the right foot?

MS BAHONKO:   I am sorry, your Honour, before we start I ask the Court’s leave, I must hand up a supplementary affidavit and ‑ ‑ ‑

HIS HONOUR:   Yes.  Has Mr Gorton seen this?

MS BAHONKO:   No.  No, no, because ‑ ‑ ‑

HIS HONOUR:   You are about to give him a copy, are you?

MS BAHONKO:   Yes, I will, and an amended summons.

HIS HONOUR:   Yes.  Let me have a look at it.

MS BAHONKO:   Can I ‑ ‑ ‑

HIS HONOUR:   Just a moment, Ms Bahonko.  Now, Ms Bahonko, I have looked at - I cannot say I have read those documents word for word.  All I have done so far is look at them.

MS BAHONKO:   I understand.

HIS HONOUR:   You want to amend your summons, do you?

MS BAHONKO:   That is right.

HIS HONOUR:   Yes, and in support of that you have your affidavit of 20 March.  Is that right?

MS BAHONKO:   That is right.

HIS HONOUR:   Yes.  Perhaps I should first ask Mr Gorton what he says his clients’ attitude is.  Mr Gorton?

MR GORTON:   That is the first we have heard of it now, so my instructions are not absolutely clear but certainly I think the attitude of my clients, subject to getting confirmation from across the table, is to oppose the amendments as being amendments which are totally inappropriate for matters for determination by this Court.

HIS HONOUR:   What I think I will do, Mr Gorton, is hear what Ms Bahonko has to say in support of her application.  I will defer ruling on the application for leave to amend, but I will hear what Ms Bahonko has to say and then see where we go to.

MR GORTON:   If your Honour pleases.

HIS HONOUR:   Yes.  Ms Bahonko, before we come to these aspects of the matter, can I just understand one factual question.  You have filed your written case, have you not?  It is on the file?

MS BAHONKO:   Yes.

HIS HONOUR:   Yes.  So that issue which was a live issue before Justice Crennan is fixed up and that has gone away now, has it not?

MS BAHONKO:   Not exactly, not exactly.  I must say I had to amend my summons for the reason that new events took place and very important and crucial events so if we – if we will be acting on the old summons it will be abuse of the process and the whole summons – the whole hearing today will be absolutely abuse of the process, will be absolutely irrelevant.  So, I have to reveal to the Court what has happened since the time of the last summons and what has happened in the matters which are already waiting for determination by this Court.

There is two matters there.  …..those matters were partial – partial in the whole proceeding but argument was that those orders I appeal from, the primary judge orders, were final because the question of those orders in the nature were final so because of the nature of the proceeding and the criminality and fraud and abuse, so much abuse and violence involved in these proceedings that basically whatever is happening up to date has to be taken into the consideration if the matter has been filed and the cases has been completed because I have to complete the cases within 28 days but it does not mean I cannot add anything further if it is required by the law because otherwise the Court consideration would be unfair and the whole process would be unfair and abuse of the process.

So what I was asking originally, in my original summons that I supported, I should have leave to file further affidavits disclosing what has happened in the matter since this time.

HIS HONOUR:   Does this affidavit, that is today’s affidavit, 20 March ‑ ‑ ‑

MS BAHONKO:   That is right.

HIS HONOUR:    ‑ ‑ ‑ tell the reader about the further facts that you want to ‑ ‑ ‑

MS BAHONKO:   Yes.

HIS HONOUR:   Yes.  So if the Court reads this affidavit it understands the further facts that you want the Court to know about.  Is that right?

MS BAHONKO:   Yes, it should.

HIS HONOUR:   Yes.

MS BAHONKO:   I assume there should be a few questions maybe to explain some here.

HIS HONOUR:   But this new affidavit ‑ ‑ ‑

MS BAHONKO:   That is right.

HIS HONOUR:    ‑ ‑ ‑ brings us up to date, is that right?

MS BAHONKO:   Yes, absolutely.

HIS HONOUR:   Now, can I just take a moment and tell you a possible way that I want to think about proceeding.  You have filed your written case.  True?

MS BAHONKO:   Yes.

HIS HONOUR:   You now have an affidavit which brings things up to date.

MS BAHONKO:   That is right.

HIS HONOUR:   Yes.  The Rules of Court provide that the application to this Court is first looked at by two Justices, two members of the Court.  Do you understand that?

MS BAHONKO:   Yes.

HIS HONOUR:   So your written case is then considered by two Justices.

MS BAHONKO:   Yes, original one but this summons was ‑ ‑ ‑

HIS HONOUR:   Well, if I make an order that this application, that is your application to amend – your application in respect of this affidavit go before the two Judges who are going to look at your written case so that they have your written case, they have these further facts that you say they need to know, that should solve the immediate problem, should it not?

MS BAHONKO:   It should solve but not all the problems.  The immediate problem is this.  The first problem is if this hearing will be expeditious.  The last time I was here on summon I asked that the other matter be consolidated and then expedited.

HIS HONOUR:   Yes, well we have two things.  We have consolidation, that is, we have to marry the two applications.  That is one thing, yes?

MS BAHONKO:   Yes.

HIS HONOUR:   The second thing is you want it on and dealt with quickly.

MS BAHONKO:   That is right because otherwise that proposition you are giving, your Honour, will be improper because if it is expedited that is fine because the summons requires urgent attention and – so only under the condition that it will be dealt with expeditiously that will - may happen.

HIS HONOUR:   What I have in mind, Ms Bahonko, is this, that your application for special leave to appeal to the Court be referred to a panel of two Justices to consider in accordance with rule 41.10.5 as expeditiously as the business of the Court permits.  That is one.  Two, that this application be dealt with by the same panel as deals with your other application.  That marries the two together, do you understand that?

MS BAHONKO:   Yes, your Honour.

HIS HONOUR:   And that, third, the application that you now make by your further amended summons be referred for consideration in the first instance by the same panel.  What I am trying to do is to cut through and get to the end which you want which is for your application to be considered and if possible decided as quickly as possible.  Is that right?

MS BAHONKO:   Yes, that is right.  The other issue is this which may have to be decided today, at least, I may request the Court to decide today, this is a serious issue.  This issue of – I launched appeal in the Court of Appeal but the application to VCAT on the guardianship which is psychological assault of my legal and human rights has been already made and as stated I have – appeal has been granted, sort of.  It is not – as appealed from the orders, even by the Court of Appeal on 9 March these orders – it is quite possible I have to appeal from them because they not address adequately my situation and they not support my legal rights adequately.

This means since the stay of Judge Coish orders were obtained the Registrar of the County Court still acts on the – she ignores these orders completely and that is my problem at the moment – she ignores these orders completely as she has done before with many other court orders and she proceeded with the VCAT application to impose upon me guardianship and administrator which is a psychological assault because it has no foundation and it is an abuse of act and abuse of process.

On the 14th I was called by the Public Advocate wanting to call to me so they still asked because VCAT issued orders – unlawful, but they issued orders on 6 March and now the vicious cycle has started and no one is going to stop these insane people from going ahead with the abuses until I obtain some kind of dissolution of these orders or some kind of injunction.  So, despite – how I am going to run the appeal when these people acting on the orders or the – from VCAT now - and harassing me?  So, they are not - actually the order given by the Court of Appeal does not affect them, as it seems, in real…..because I was called on the 14th by the Office of the Public Advocate.

Further to that, the Court of Appeal actually deceived me because the order – they dropped the part which is saying that they could stay on to pursue at Judge Coish orders – VCAT application - but they dropped this from the actual orders they get so I am here today in this Court actually – I may have to even ask ex parte – as an application ex parte – these VCAT orders have to be dissolved or put aside because otherwise I will not be able to persist with my appeal properly.

The Court of Appeal fired shot improperly on certain of my rights and as I stated in my affidavit that is basically a deception, a deception of me - and the order of the Court of Appeal are not adequate and even so they give – up to registry staff how expeditious the appeal will be, so actually that is a little bit of a question because it looks like I am in the hands of the Court of Appeal Registry, now.  My fate is in the hands of the registry, which registry already obstructed and refuses my application in past number of times and I have an issue with the Court of Appeal registry.

Secondly, the VCAT order has not been stopped or put aside – has been dropped from the real orders and so that is a serious question.  I am still under assault and the situation is unsatisfactory.  The VCAT orders have to be dissolved today and that will be my request because the Court of Appeal failed to do that and when I went to them on the 15th to issue new summons actually requesting this as an interlocutory because of – this was refused, actually, and so – but my problem is that the Victorian court act in an unlawful manner.  They treated me as my legal rights were already removed.

This is a…..  This is criminal discrimination and they do not obey any law as far as I am concerned.  They refuse my application, so – they are just acting very unlawfully in relation to me.  They disregard any law – any legislation – so, in this case, under such abuse and assault going on I came to this Court and asked to making certain rulings and do this quickly because since the last time I was here – it was on 2 February – I have been under constant psychological assault and violence.

A number of orders have been unlawfully issued against me and this cannot continue if – so, I mean, I am asking the High Court what is going on, really, how – what ‑ ‑ ‑

HIS HONOUR:   Ms Bahonko, this Court can decide your applications for special leave.  It can decide matters that are properly incidental to your applications for special leave.  What I am suggesting to you is a set of orders that will put those questions as expeditiously as the business of the Court will allow before a panel of two Justices.  That will cut through it all and this Court will decide what it can.  Is there anything further that you would say against my adopting that course?

MS BAHONKO:   Generally, I will accept that but something has to be done about the VCAT orders which some people still continue to act on them and obviously this is unlawful and something has to be done.  The VCAT’s order has to be put aside, stayed or dissolved.  Something has to be done about it because this is against the actually natural – not only natural justice but even appeal process.  I cannot continue with that appeal process having these people acting on the orders.  They continue this vicious cycle.

HIS HONOUR:   The VCAT proceedings are ones that are the subject of your appeal to the Court of Appeal, are they?

MS BAHONKO:   They were but the Court of Appeal did not address them adequately and they still continue to – they were – the VCAT proceedings were subject to Judge Coish referral.  Judge Coish’s orders was put on stay but the Court of Appeal fell short, actually deceived me because

in the open court the Court of Appeal stated that VCAT application will be on stay as well but they dropped this from the actual orders and that is the deception and there is - that raises serious question of law, so the final shot in giving appropriate orders in this regard, then they refuse my application for further interlocutory orders.

So my argument here before the Court is that I am somehow entitled to seek even interlocutory orders incidental to my matter, as your Honour has said, so that is my attitude, that I am seeking interlocutory orders in relation to the VCAT issue because it is not very satisfactory that they are still acting on orders of Deputy President…..on 6 March when the appeal put on stay Judge Coish orders.  I am not sure if I am making myself clear, but I must say that actually I am under quite a lot of pressure and harassment because, as I said, on the 14th I was contacted by the Public Advocate and I realised that they are still acting on these orders and so I will be seeking…..urgent from the High Court in this respect maybe today because this could be part of my interlocutory or ex parte application in the existing matter.

HIS HONOUR:   Yes.  Is there anything else you wanted to say?

MS BAHONKO:   Thanks.  I will go on to say this at the moment but only if I may later on, if necessary, thanks.

HIS HONOUR:   Yes.  Mr Gorton, what I am minded to do is to refer the summons to the panel who will deal with the applications for special leave in the first instance.  That, of course, is on the basis that your side of the record has not yet made any submission and has not yet had an opportunity to make any submission in opposition to the orders sought in that amended summons but that in accordance with the ordinary procedures of the Court, now, applications for special leave of this kind ordinarily go to a panel of two and then we see where they go.

MR GORTON:   Yes.  My client’s attitude, your Honour, is that it is appropriate for the proceedings to be heard promptly, heard together, dealt with by the two Judges as your Honour says and our concern is only in relation to the Court granting a stay in respect of the orders of Judge Coish.

HIS HONOUR:   Yes.

MR GORTON:   The Court of Appeal in the documents that have just been presented to you has made an order staying the application to VCAT for a guardianship appointment.  That was made on 9 March this year.  There was an earlier order made by VCAT on 6 March that the process of guardianship be pursued in accordance with the Act.  That seems to be stayed by ‑ ‑ ‑

HIS HONOUR:   Now, that is interrupted, that is stopped, at least for the moment, is that right?

MR GORTON:   That is as I understand it, your Honour.  It is a process that my clients are not immediately involved in because it is a process undertaken by the Registrar of the County Court and when my client has sought to be involved in it it has been ejected from the process.

HIS HONOUR:   Yes, it is not part of your client’s business.

MR GORTON:   Yes.  All I am saying is, we cannot say what will happen but it appears clear ‑ ‑ ‑

HIS HONOUR:   No, but can you point me to where the interruption is recorded so that I can just point it out to Ms Bahonko and we are all understanding what we are talking about.

MR GORTON:   It is in the exhibits to the affidavit that was filed today, towards the back.  I think the third last complete document is the order of the Court of Appeal.

HIS HONOUR:   So, if I come back in the bundle I find an order of the Court of Appeal annexed to Ms Bahonko’s affidavit, do I not?

MR GORTON:   Yes.

HIS HONOUR:   That is an order of Justice Buchanan and Justice Redlich, is that right?

MR GORTON:   Yes, your Honour.

HIS HONOUR:   That is an order that Judge Coish’s order of 6 December is stayed.

MR GORTON:   Yes.  Your Honour, to be precise about that, Judge Coish made four orders on that day.  One was setting aside summonses, one was ordering costs.  Those two matters had nothing to do with my clients.

HIS HONOUR:   No, but the particular order that Ms Bahonko is concerned with immediately, these proceedings in VCAT about guardianship, have been stayed.

MR GORTON:   Have been stayed, yes, your Honour.

HIS HONOUR:   So they are interrupted?

MR GORTON:   Yes, your Honour, that is as we understand it.

HIS HONOUR:   Yes.

MR GORTON:   So that there should not be a concern about that and her ‑ ‑ ‑

HIS HONOUR:   If there is any difficulty about the implementation of that order that is a matter for the Court of Appeal, not for this Court.

MR GORTON:   Yes, and for Ms Bahonko to go back to the Court of Appeal to have that order enforced.

HIS HONOUR:   Saying you made an order, make sure it is enforced?

MR GORTON:   Yes.

HIS HONOUR:   Yes, I understand.

MR GORTON:   I will not address the other matters in the – except I think it is clear that when the matter was on before this Court before Justice Crennan she refused to make an order for interim payments and that issue, we think, is finished.

HIS HONOUR:   Yes, I understand.  Now, Ms Bahonko, what I was just trying to understand, and I think I do now understand it, is that the Court of Appeal has made an order – you have given me the copy of the order – that the guardianship proceedings in VCAT are stayed?

MS BAHONKO:   That is not so, Sir.

HIS HONOUR:   That is their order.

MS BAHONKO:   That is not what the order says.  Orders state – order of Judge Coish in relation to that but the part which was – what I am saying, in an open Court on 9 March there was another part to this order.  The part was continues “and pursuant to this order VCAT application” and so on.  My concern is that this has been dropped from the authenticated order and the deception has occurred.

HIS HONOUR:   That is a matter you are going to have to take up with the Court of Appeal.

MS BAHONKO:   Excuse me, and he has ‑ ‑ ‑

HIS HONOUR:   No, Ms Bahonko ‑ ‑ ‑

MS BAHONKO:   Your Honour, this is abuse going ‑ ‑ ‑

HIS HONOUR:   Ms Bahonko, be silent.  The way in which we proceed in this Court, I am afraid to say, is that if I speak you remain silent.

MS BAHONKO:   I am sorry.

HIS HONOUR:   Now, Ms Bahonko, these are matters that you will take up with the Court of Appeal.  Yes?

MS BAHONKO:   Excuse me, may I say something, your Honour?

HIS HONOUR:   Yes.

MS BAHONKO:   I am saying I already went to the Court of Appeal on the 15th and I was refused so now I have to ask for another leave to appeal in this Court – which I did not put the paperwork.  I went to the Court of Appeal actually to address the issue which I am talking to the Court now and my application has been refused, so was that…..in this instances, I am here before the High Court telling them I am being abused in a very nasty manner.  I am telling the Court of Appeal has refused my application to address the issue and the error been made in the order.  I am telling the High Court that actually VCAT’s order are being followed because on 14 March I received a phone call from the Office of the Public Advocate, so that is all the evidence to the High Court that I exhausted – I exhausted all the possibilities with the Court of Appeal.

The Court of Appeal is acting unlawfully refusing my application.  It refused to – so, I cannot enforce my application upon the Court of Appeal.  In this case I am entitled – my only option is to make an ex parte application to this Court or ask this Court for a proper intervention in the case of such a severe abuse.  My request is that this Court should not ignore such a situation when the evidence is clear and send me back to the Court of Appeal when I already exhausted that avenue.

HIS HONOUR:   Yes.

MS BAHONKO:   Further to that the respondent – they deceived this Court the last time they were here and now they are deceiving this Court here.  They driving VCAT application from behind even though they are not the official party.  They are driving this application and they are acting behind the scenes because that was in their interest and now they are deceiving the Court saying that it is not their problem.  Actually, they asked for the specific orders.  They constructed a fraud.

They are asking Judge Coish for this order.  They are asking for referral.  They were pushing for it.  They pushing, and they were pushing and still pushing for abuse that seeks to puts the guardianship administrator upon me in abuse of the Act of Parliament and they proceed with the fraud, so they still have interest in it and what they are saying here that is not their problem now and they are not going to get involved it is quite incorrect.

They cannot cut off themself from what they initiated and started.  It is their problem and they should respond to me now why the Office of the Public Advocate and other people still acting on the VCAT’s orders and, at least, this Court - your Honour should address in a human way – understand my situation what I can do.  The Court of Appeal already turned me down on my application for properly stated and clear orders which will stop the cycle of violence initiated by the VCAT.

HIS HONOUR:   Yes, thank you, Ms Bahonko.

This is the adjourned hearing of a summons brought by the applicant in an application for special leave to appeal to this Court in which initially she sought extension of time within which to file a written case.  There is another application for special leave to appeal in matter M137 of 2006, at least some issues in which the applicant would say intersect with the issues sought to be agitated in the present application.

By her summons, as ultimately amended, the applicant sought, amongst other things, consolidation of this application, No 152 of 2006, with matter M137 of 2006, leave to file certain further affidavits, interim payments under the Accident Compensation Act 1985, an expedited hearing of the two applications for special leave and a direction to the Registrar to accept a written case for filing that had been submitted.

On an earlier occasion Justice Crennan granted the extension of time necessary to file the applicant’s written case in matter M152 of 2006 and that has been done.  Her Honour declined to make an order for interim payments under the Accident Compensation Act and that aspect of the application was then at an end.

On that summons I am, therefore, left with the applications dealing with the further hearing and determination of the two applications.  At the outset of the proceedings, Ms Bahonko, the applicant, sought leave to file a further amended summons seeking a further five forms of order, together with a further supplementary affidavit of 20 March 2007 in which she sought to depose to facts which she said bore upon the present situation in matters touched on by the litigation.

In my opinion, the most efficient course to adopt to deal with the present matters is to direct that each of applications M152 of 2006 and M137 of 2006 be referred to a panel of two Justices to consider in accordance with rule 41.10.5 as expeditiously as the business of the Court permits; second, to direct that the application to amend her summons in the form of the further amended summons handed up in Court today and initialled by me, which will remain on the file, be referred for consideration in the first instance by the panel of Justices who shall consider the two applications for special leave.  The costs of today should be costs in the application for special leave.

I note, without intending that this should form part of the order, that none of the respondents has yet been heard in respect of any of the matters the subject of the proposed further amended summons.  There will be orders in those terms.

Adjourn the Court.

AT 1.10 PM THE MATTER WAS CONCLUDED