Bahonko v RMIT

[2007] HCATrans 22

[2007] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M151 of 2006

B e t w e e n -

STANISLAWA BAHONKO

Applicant

and

ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY

First Respondent

MINISTER FOR EDUCATION AND TRAINING

Second Respondent

VICTORIAN INSTITUTE OF TEACHING

Third Respondent

Application for extension of time

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 FEBRUARY 2007, AT 10.18 AM

Copyright in the High Court of Australia

__________________

MS S. BAHONKO appeared in person.

MS J.A. BORNSTEIN:   If it please the Court, I appear on behalf of the first respondent, the Royal Melbourne Institute of Technology.  (instructed by Williams Winter)

MS L.G. DE FERRARI:   If the Court pleases, I appear for the Minister for Education of the State of Victoria who is the successor to the presently named second respondent under the administrative arrangements that followed the recent Victorian elections.  (instructed by Victorian Government Solicitor)

MS F.I. O’BRIEN, SC:   May it please your Honour, I appear on behalf of the third respondent.  (instructed by Victorian Institute of Teaching)

HER HONOUR:   Yes, Ms Bahonko.

MS BAHONKO:   If your Honour excuse me, I have to raise an incident which just happened outside the Court now which is relevant to the matter and I am a bit shaky at the moment, so it may affect my appearance and I have to explain why.  Anyway, the person which caused the accident is referred to in my affidavit which I find is relevant.

HER HONOUR:   Yes, I have read that.

MS BAHONKO:   So I have to say that when I went outside to use the toilet and I sat down writing stuff in my document suddenly the officer of this Court, Mr Chris Weymouth, start yelling and looking at me, “Get out, get out, court is in session”, and took me by shock and he really was looking at me as it appeared to me and because he was very abrupt and intimidating to me before, I was certain that he was yelling at me.  So I started shaking, which I still am, and then it appeared to me that it was to another man, was Dr Hosani Rasi, a Persian interpreter who just received a phone call sitting a couple of chairs on the left, on the right actually, and this was addressed to him ‑ ‑ ‑

HER HONOUR:   Would you like a few minutes to settle down?

MS BAHONKO:   I am okay, I am okay.  I will proceed.  I see how I will sit.  This is relevant to my affidavit, so that is why I am raising the matter.  So then I realise it was to this person and I have spoken to the person and he said that he find this behaviour inappropriate, but because he was a male he may not be as affected as I am.  So that is one of the issue I have to raise in my application.  To start with, I have to say that I file application for special leave to appeal from the Federal Court on 7 December in this Court against the three defendants, RMIT, Minister for Education and VIT.  I follow the rules and I understand – I was informed formally of the rules by the ‑ ‑ ‑

HER HONOUR:   You were required to file a written case on or before 4 January 2007, so that is 4 January just passed.

MS BAHONKO:   Yes, I am getting to it.  Yes, I was required ‑ ‑ ‑

HER HONOUR:   You want an extension of time within which to file that case.  That is your application today?

MS BAHONKO:   That is my application.  I was made, actually by the Registry, to make this kind of application.  I would dispute the due date now.  I should have this due date before, but I will dispute it now because, as I stated in my affidavit, this is a holiday period, between 7 December and 4 January.  This is not the period like any other period.  This is a recess period in the Court.  There is large number of public holidays which are not in the number during the normal year and my understanding at the moment is, and argument is, and request that because of this recess period of the Court and large number of public holidays, the actual date should be slightly extended by the number of this holiday and recess of the Court should be taken into the consideration.

HER HONOUR:   What is the extension of time you are seeking?  Is it the order of a week or a fortnight?

MS BAHONKO:   Basically it was one day, if any, because circumstances of the matter were that on 4 January I had my written case ready but it was 3.00 pm.  I was in front of the computer and I had to travel 50 kilometres to this Court to lodge them.  So I call Mr Chris Weymouth, who was the only person at the Registry of the Court on that day because it was recess of the Court.  I called him around 3 o’clock and said, “I’ve got a problem.  I’ve got my cases ready.  I won’t be able to deliver them because the travel on train, I don’t have a car, will take me longer than an hour.”

HER HONOUR:   Well, the written case is ready now, is it?

MS BAHONKO:   They are.  Yes, they are ready.  They were ready and I faxed them.  On 4 January I faxed them and what Mr Weymouth done, he put them into envelope and send them back to me and refused to accept them.  Then on 5 January I attended the Court and I brought the cases with me and documents and wanted to file them and the Registry refuse.  Actually, the person present here, the Deputy Registrar, refused to accept them and I was told I have to file a summons for the extension of time, which I have no choice and no time to reflect upon if such a summons were really necessary, because it seems to me straightaway it was very unreasonable to refuse accept them by fax and, in fact, I was offered to bring them next morning, and refused to accept them the next morning, especially that they were not initiating documents, but a written case and consider that the Court was in recess.  Other argument is, if I chosen to issue affidavit on 4 January, I would not be able to because there was no one to actually affirm an affidavit and Mr Chris Weymouth said he is not authorised to do such affidavit. 

On 5 January when I attended the Court I was not allowed to actually – I had the affidavit.  I wanted to file this summons immediately and affirm the affidavit in support of the summons and Mr Chris Weymouth said that he cannot do that and he would not accept my summons, of course.  So I checked the whole building, the Federal Court building here.  There was no one actually to do this affidavit.  So my other argument is, even if I would come and wanted to – according to the rule, I could file – with my written cases I should file affidavit with the exhibiting documents I want to rely on – I would not be able to do this anywhere. 

So, as I stated with my application for this what seems to be extension of time, that the Court should consider that that period – the fact that I would not be able to really do all of that.  So under those circumstances I believe that such a trivial one day should not affect the entire matter and either I would request that the written cases ‑ ‑ ‑

HER HONOUR:   In effect, on everything you say, you would want an extension till 4.00 pm this afternoon and you would be able to file it today.  That is your position, is it?

MS BAHONKO:   Yes, I have got them with me.

HER HONOUR:   Yes, all right.  Well, I will hear from the others at the Bar table.

MS BAHONKO:   Thank you.

HER HONOUR:   Thank you.

MS BORNSTEIN:   Your Honour, the first respondent objects to the application for the extension of time.  It is acknowledged that the period of time, the delay, is of short duration, but it has been ‑ ‑ ‑

HER HONOUR:   In a colloquial sense, anyway, it is a holiday period.

MS BORNSTEIN:   Indeed, but it has been and continues to be the position of the RMIT that the application that is before the Court is entirely devoid of merit and it is on that basis that we would submit that the decision of his Honour Justice Tracey, against which the application for special leave is brought, is entirely correct.  Your Honour, it was only at 9 o’clock this morning that an outline of submissions was filed in the Court.  I do not know whether ‑ ‑ ‑

HER HONOUR:   Yes, I have read those.

MS BORNSTEIN:   Thank you.  In essence, it is the first respondent’s argument that an extension of time in this matter would be futile, that his Honour Justice Tracey applied the correct principles in considering the application for leave to appeal against the decision of his Honour Justice Weinberg which was clearly interlocutory.  He reviewed in all aspects the exercise of his Honour Justice Weinberg’s discretion.  He applied correct principles and, significantly, he considered the finding of his Honour Justice Weinberg that the complaints of the applicant in this case were not pointed to by any evidence or material.  His Honour went further and gave the applicant a fresh opportunity to raise further matters.

HER HONOUR:   I did read paragraph 11, yes.

MS BORNSTEIN:   Indeed, and found that her various allegations or submissions were not sustainable on the grounds of irrelevance, as well as not supporting her claims of discrimination.  On that basis, it is submitted that the application for an extension of time should be refused.

HER HONOUR:   Yes, thank you.  Yes, Ms De Ferrari.

MS DE FERRARI:   Your Honour, the Minister’s position is that he neither opposes nor consents to the extension of time and the Minister is here principally to assist the Court, if it pleases.  There are two affidavits that have been sworn by my instructor which seek to unravel some of the many proceedings that have brought us here today.  Could I formally read those affidavits, your Honour?

HER HONOUR:   Yes.

MS DE FERRARI:   Unless your Honour would be assisted from ‑ ‑ ‑

HER HONOUR:   You have proposed minutes in relation to the name change?

MS DE FERRARI:   I do, your Honour.  Whether or not they are needed, that depends, in a sense, as to the outcome of today, but it is probably safer if your Honour is prepared to make those orders.

HER HONOUR:   I would be prepared to make those orders ‑ ‑ ‑

MS DE FERRARI:   Thank you, your Honour.

HER HONOUR:   ‑ ‑ ‑ in accordance with the proposed minutes of 1 February 2007.

MS DE FERRARI:   Thank you, your Honour.

HER HONOUR:   Yes, Ms O’Brien.

MS O’BRIEN:   Your Honour, the third defendant consents to the application made by ‑ ‑ ‑

HER HONOUR:   To the application, yes.

MS O’BRIEN:   We do that because the applicant is unrepresented.  If you are disposed to make some other order based on materials filed by the second defendant, in particular, a stay, we would seek to be heard on that matter.

HER HONOUR:   Yes, very well.

MS O’BRIEN:   May it please your Honour.

HER HONOUR:   I will adjourn for a short period.

AT 10.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

HER HONOUR:   The order I make in this matter is, that 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. 

What that means is that you have until 4.00 pm on Monday next to file those papers.

MS BAHONKO:   Thank you very much, your Honour.

HER HONOUR:   Thank you.  Any further applications?

MS BORNSTEIN:   I would seek to reserve the matter of costs.

HER HONOUR:   Very well, I will reserve the costs of the first respondent.

AT 10.42 AM THE MATTER WAS CONCLUDED