Bahonko v Moorfields Community & Anor

[2007] HCATrans 23

[2007] HCATrans 023

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

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 FEBRUARY 2007, AT 10.42 AM

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 for the respondents.  (instructed by Lander & Rogers)

HER HONOUR:   Yes, Ms Bahonko.

MS BAHONKO:   Your Honour, the matter is very similar to the previous one.  The application for special leave to appeal was filed on the same day, on 7 December, and I had this case faxed to the Registry on 4 January, on the due date, and then it was sent back to me.  So the factual matter, factual circumstances, are exactly the same.

HER HONOUR:   Well, you would be content with an order in the similar terms as I just made in the previous matter.

MS BAHONKO:   I think so, I think so.

HER HONOUR:   Yes, very well.  Now, I as I understand it, you have amended your summons.  Are you pressing on with seeking other relief today or not?

MS BAHONKO:   I would like to highlight them because some of the matters are quite pressing and urgent and so I would think that I am really obliged to put forward the new facts because otherwise my application will be a bit incomplete and untrue in the full sense which I am ‑ ‑ ‑

HER HONOUR:   But your amended summons seeks other orders.  I am asking you ‑ ‑ ‑

MS BAHONKO:   Yes, that is right.

HER HONOUR:   ‑ ‑ ‑ whether you are today seeking other orders other than an extension of time.

MS BAHONKO:   Yes, I do, your Honour.

HER HONOUR:   Yes, and what is the basis on which you are doing that?

MS BAHONKO:   In my opinion, consolidation of this matter, 152, with the previous matter will be beneficial and saving costs and resources and it is essentially necessary because a new development took place which, for the Court to really justly and fully assess my previous application, the Court should be aware of the circumstances and events which happened since.  So I feel obliged that the full disclosure should be before the Court and now I was taking this opportunity to actually make such a disclosure and asking for leave and file further affidavit actually disclosing this new fact in this matter and the previous matter and ask for the consolidation as to save the Court’s time, I believe, and a lot of resources because the matter is essentially the same. 

I understand that we cannot go into the detail now, but the orders I appeal from…..given in stages but basically they were the same final orders which are – because at the moment Judge Coish struck out this application and in the very unlawful manner so at the moment I am in the urgent circumstances and I am seeking injunction and stay of his orders in any court I can and basically because I am in the position where I am under assault and threat that my civil and legal rights would be removed. 

After I obtained the restraint order but the order is temporary and I received further threats yesterday at the Federal Court from the respondent and they are going to ask that application which has been dismissed…..be reinstated and other proceedings in the Federal Court are stayed on the basis of their future intention and that is what a judge has…..quite unjustly and unfairly because application has been dismissed by VCAT but this has not stopped respondents’ assault of my civil and legal rights, so I am still under threat of having my legal rights removed and assault on my civil rights.  I still under great amount of pressure and the orders are unjust and with the long‑lasting and damaging effect to me. 

HER HONOUR:   All right.

MS BAHONKO:   So these orders not only they do not meet judicial requirements, they do not have reason for them.  None of the orders had a reason and it was not a true trial at all.  There was no trial and application has been dismissed without a trial.  Orders do not meet judicial requirements and there is overwhelming evidence that the final order was fixed up upfront and there is a lot ‑ ‑ ‑

HER HONOUR:   Well, I think one step at a time.  The order you most require today is an extension of time within which to file your written case.

MS BAHONKO:   That is right, yes.

HER HONOUR:   Subsequent to that there can be further consideration of any other matters such as a consolidation, which would be a matter to be dealt with under the Rules.  So unless you have got anything further, I will hear from Mr Gordon who is appearing on behalf of the respondents.

MS BAHONKO:   Yes, I want to add for that that the most pressing order I would like to receive is to stay Judge Coish order of 6.12.06 until appeal is

heard, until a fair hearing takes place and consider the…..circumstances and actually what happened before anyone acts on them.  I think that is the principle and any person’s legal right to have that.

HER HONOUR:   Thank you.

MS BAHONKO:   Thank you.

HER HONOUR:   Yes, Mr Gorton.

MR GORTON:   Your Honour, in relation to the orders sought the respondents to the appeal have no submission to make about the extension of time in one.  So far as two is concerned, we say this, that 137/06 is an appeal against an adjournment being granted, that 152/06 is an appeal against the decision was made after the adjournment had been heard – sorry, after the adjournment period had expired and the matter in issue was determined.  So that in one way they relate to each other but in reality it is 152/06 which is the matter that the applicant is really concerned about.

HER HONOUR:   The substantive matter.

MR GORTON:   The substantive matter.  Whether they should be consolidated or not is a matter for the Court rather than us.  If we were making a submission, it would be that they should not and the substantive matter should be the one that was left alive and the other one determined on the processes of the Court.  Concerning leave to file affidavits in the matter we have no submission to make. 

We are concerned about order 4 that is sought and would urge that this Court not make that order; (a) it does not have power to make it under the Accident Compensation Act where the exclusive jurisdiction is given to the County Court of Victoria; (b) there is no authority under the Act for interim payments; (c) it is the question of whether interim payments that can be ordered or not which is the subject of the substantive appeal.  So to grant the order now would be to grant the appeal without resolution or without examination of a question. 

The respondents have no submission to make about the expedited hearing.  We have no submission to make about order 6 that is sought.  We say that there should not be any stay in respect of Judge Coish’s orders of 6 December 2006.  Your Honour, on looking at those orders which are exhibited to the affidavit we will see firstly that orders 1 and 2 relate to striking out of subpoenas and an order for costs made to someone other than the respondents and at the request of someone other than the respondents.  Order 3 was a referral of the matter of whether a guardian or administrator of the plaintiff should be appointed and, in relation to that, because of the uncertainty of what would happen, the proceedings were struck out with a right of reinstatement.

I am instructed that the applicant made an oral application to the Court of Appeal on 3 January – or to the Supreme Court at least on 3 January 2007 and obtained an interim injunction that neither the registrar of the court nor any of the respondents to the plaintiff’s compensation claim participate in any way in the application before VCAT – rather than the Federal Court, it is an application to VCAT – and no one appeared before VCAT and the proceedings as ordered or referred by Judge Coish were dismissed at VCAT because of no appearances. 

You have been told that the respondents are moving to set aside the order of the Supreme Court.  My instructions are that it is the registrar of the County Court who is the proper applicant in those proceedings under section 66 who is intending to take proceedings to set aside the injunction so that the question of whether there ought to be a guardianship can be heard and decided by VCAT.

HER HONOUR:   Yes, I see.  When is that likely ‑ ‑ ‑

MR GORTON:   We would say that the orders of Judge Coish should not be stayed and if there is an objection made to them, the proper process is to appeal against them in the other ‑ ‑ ‑

HER HONOUR:   I suppose it is not possible for you to say, if VCAT were to be hearing this matter, when that is likely to take place?

MR GORTON:   The hearing that was struck out was on 10 January.  So it was effected fairly quickly that time and I would have expected, if the injunction was set aside ‑ ‑ ‑

HER HONOUR:   It would be effected fairly quickly.

MR GORTON:   ‑ ‑ ‑ it would be effected fairly quickly again, but I cannot answer more than that.

HER HONOUR:   No, that is helpful.

MR GORTON:   I am instructed that the Victorian Government Solicitor was going to file papers to set aside the application some time during this week or about this week.  What they have done I am not instructed.  So we would say the orders should not be set aside.  They are only properly to be – should not be stayed.  The striking out has taken effect already.  The VCAT guardianship order should not be stayed by this Court as it is regarded by

the County Court, not appealed against, as important for the resolution of the compensation claim.

HER HONOUR:   Yes, thank you.  Yes, Ms Bahonko.

MS BAHONKO:   I am sorry, your Honour, but this submission was a bit confusing and incorrect in many detail.  I think I will not be able really to correct all of them because I will have to go to the heart of the matter and a chronology.  I only have to say that essence of the first application was not adjournment but was issue of interim payment.  I request the County Court and dismissal of summons for interim payment without a trial at all.  That was the essence of the first application which I seek consideration with this one. 

I go straightaway to staying Judge Coish’s orders.  Their submission was quite incorrect in relation to issue with VCAT and all of that.  My question is, I would really press that order No 3 in relation to VCAT should stay because why I should be under assault for all the time and having to deal and be harassed and be under psychological assault for all this time unnecessary.  My rights are and the principal rights of a person are to appeal.  So I should be having the chance actually to appeal all those orders and why anyone should act on order No 3, just on order No 3 in between time when – just to hop in time before appeal is heard and make decision before appeal is heard.  That is what they are trying to do.  So that should not happen.  That is what I was stating before. 

Justice Bell who gave restraint order and he admitted and gave this restraint order temporary until appeal is heard, but it is only until the first direction hearing on summons, so this does not guarantee that appeal will be heard fully on the day and that is my difficult situation.  My understanding is that the law has to be…..and the principle has to be my time and my legal and civil rights have been severely affected and breached and I am under assault and this is quite unlawful what has happened.  As I say, it is impossible for me to go into detail but this order is quite unlawful.  It is unjust, unfounded and does not meet judicial requirements even on the face of it.  The motive behind this order is criminal and…..and such order should not take effect. 

The minimum I can ask, the order has to stay until the appeal is heard.  Why these people acting still on this order?  They should not act on it.  I should have a right to have the file considered and check if the order is valid before anyone acts on this order.  So the order No 3 has to stay until a full appeal takes place, a proper appeal, not the first hearing.  Justice Bell restraint order is up to only the first direction hearing and that is only the first direction hearing and after that I will be under assault and this actually could lead to further unnecessary complication and assault on my

civil and legal rights because I actually should have a right to go to appeal first before anyone acts on the orders, and this is serious.  This is serious.  We are not talking about a cost, even.  We are not talking about paperwork and documents or anything like that.  We are talking about personal legal and civil rights. 

These are very, very, very serious and actually in essence inappropriate to my circumstances because such orders should be made only if it is needed according to Act.  In my case it was not needed and is not needed.  It is not needed and everyone knows it and the motive behind this is criminal.  So it is in the interest of the respondent and then they pressing this, but on my side I am saying that no court should allow a person to be under psychological assault in this way.  The appeal has to be heard first.  Thanks.

HER HONOUR:   Thank you.  I will adjourn for a short period.

AT 11.00 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.05 AM:

HER HONOUR:   The orders I make in respect of the summons dated 8 January 2007 and amended on 1 February 2007 are:  if on or before 4.00 pm of Monday, 5 February 2007, the applicant files her draft notice of appeal and written case in support of her application for special leave the application for special leave is not to be deemed abandoned. 

Ms Bahonko, that responds to your application expressed in paragraphs 1 and 6 of your summons.

MS BAHONKO:   Thank you, your Honour.

HER HONOUR:   Next, I order that the summons be adjourned in respect of paragraphs 2, 3, 5, and 7, adjourned sine die, and I decline to make the orders sought in paragraph 4 of the summons. 

Nothing further, Mr Gorton?

MR GORTON:   No, your Honour.

HER HONOUR:   Thank you.

MS BAHONKO:   Thank you, your Honour.

HER HONOUR:   Thank you.

MS BAHONKO:   Can I ask one more question?

HER HONOUR:   Yes.

MS BAHONKO:   The summons adjourned to the no date.  Do we know the date of ‑ ‑ ‑

HER HONOUR:   I have adjourned it sine die because the best course I think is to take this step by step and the first step to take is the step on Monday, 5 February 2007, and then other matters such as consolidation can be dealt with after that.

MS BAHONKO:   So I will be notified by the Registry of the possible date of it?

HER HONOUR:   Yes.

MS BAHONKO:   Thank you, your Honour.

HER HONOUR:   Thank you.

AT 11.07 AM THE MATTER WAS CONCLUDED