Bahonko v Sterejov & Ors

[2007] HCATrans 123

[2007] HCATrans 123

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M31 of 2007

B e t w e e n -

STANISLAWA BAHONKO

Applicant

and

KOSTA STEREJOV

First Respondent

LISA MILLER

Second Respondent

SUSANNA STEREJOV

Third Respondent

LA KOSTA CHILD CARE & KINDERGARTEN PTY LTD

Fourth Respondent

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 MARCH 2007, AT 10.01 AM

Copyright in the High Court of Australia

MS S. BAHONKO appeared in person.

MR M.G.S. McKENNEY:   If your Honour pleases, I appear on behalf of the respondents.  (instructed by Felix A. Vitiello)

HER HONOUR:   Thank you, Mr McKenney.  Yes, Ms Bahonko, I have read the papers which you have filed.

MS BAHONKO:   I was told that I have got 10 minutes for our submission in this case because I have filed extensive documentation already, including a list of authorities this morning.

HER HONOUR:   Yes, thank you.

MS BAHONKO:   I would like to hear from the respondents and then respond with my 10 minute submission.

HER HONOUR:   Very well.  We can proceed in that way, Mr McKenney, and if you need a right of reply we can accommodate that in due course.

MR McKENNEY:   If your Honour pleases.  Your Honour, as I understand the application today it is for an injunction order, as it is described, “to prevent the defendants from conducting a non‑consented to trial” is the terms of the injunction, your Honour, sought.

HER HONOUR:   Yes.

MR McKENNEY:   I would understand that, your Honour, to be in reality an application that the Federal Court not conduct the trial that is scheduled for Monday.

HER HONOUR:   It is a bit like a stay application.

MR McKENNEY:   Yes, your Honour.   My primary submission is that if there is a proper basis for the applicant wanting to defer the trial that is scheduled to commence on Monday before Justice Jessup, she ought make application to Justice Jessup for an adjournment.  I use the words “proper basis”, your Honour, because as you will apprehend from the affidavit material and the material exhibited to those affidavits, both Justice Jessup and then Justice Ryan on a leave to appeal basis have considered the applicant’s submissions that Justice Jessup not proceed with the trial on the basis of some apprehended bias.

HER HONOUR:   Yes.

MR McKENNEY:   Those matters have been exhaustively dealt with, in my submission.  The solution that strikes me, your Honour, comes from what Justice Ryan adverted to in his reasons for judgment.

HER HONOUR:   Yes, at what paragraph, Mr McKenney?

MR McKENNEY:   Paragraph 17, your Honour, which is at page 8.  This is exhibit HCF.

HER HONOUR:   Yes, I have that.  I will just take a moment to read that.  Yes, I have read that, thank you.

MR McKENNEY:   As your Honour will note, Justice Ryan explicitly adverted to the possibility of an application being made to the docket judge for an adjournment.

HER HONOUR:   Yes, on 2 April.

MR McKENNEY:   Yes, which of course is next Monday, your Honour.

HER HONOUR:   Yes.

MR McKENNEY:   Can I also submit, your Honour, that Justice Jessup fixed a date for trial in the matter after all the interlocutory steps had been completed.  This matter which is a consolidated proceeding before his Honour Justice Jessup was initially commenced back in February 2006 and there has been normal interlocutory processes gone through, your Honour.  In my submission, the circumstances did not call for the exercise of any injunctive relief by this Court in what in essence should be an application for an adjournment of the proceedings on the basis there are proper grounds.

HER HONOUR:   For an adjournment, yes, I follow that.

MR McKENNEY:   Alternatively, your Honour, the respondents submit that on the material that is before the Court today, which is the affidavit of the applicant, there is no arguable case that Justice Jessup would not preside over the trial in an appropriate manner.  There is nothing in the material that in my submission suggests that either Justice Jessup or Justice Ryan had misapplied themselves in relation to the legal principles associated with these matters.

On the balance of convenience side, your Honour, as far as the injunction is concerned, this trial is due to commence on Monday of a relatively short duration.  The respondents have been preparing their case, including witness evidence, to commence on Monday and there would be

prejudice suffered by the respondents if the matter did not proceed on Monday.

The affidavit material of the applicant, in essence, in my submission seeks to reagitate submissions the applicants put before Justice Jessup and Justice Ryan on previous occasions and they have been considered and determined comprehensively, with respect, by their Honours.  Insofar as the particular respondents that I represent are concerned, your Honour will note that a number of assertions are made about the conduct of those respondents in the course of the applicant’s employment with the respondent.

HER HONOUR:   Yes.

MR McKENNEY:   Your Honour, my submission about that is that those matters would properly be the subject of the matters being dealt with at the trial of the applicant’s case which is to commence next week.  Those assertions, your Honour, will be dealt with and disposed of in the course of that trial.  Can I just make one further submission about that which is that there is an assertion made by the applicant that somehow this – as the applicant puts it – the result of the trial was fixed up – there has been some final determination.  Well, that is not so, your Honour.

What has happened so far, your Honour, and…..makes it clear, is that the Federal Court has determined various interlocutory motions of the applicant and there has been leave to appeal about those matters.  So, your Honour, the trial is set to proceed on Monday and the matters that the applicant agitates in her affidavit about my clients will be properly the subject of the trial.

Your Honour, that is all I would propose to submit at this point, subject to, as your Honour indicated, perhaps replying to anything the applicant puts.

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

MS BAHONKO:   In addition to what I already provided and proof that the trial actually has been fixed up and it would be abuse of the process to go to the trial when the final result is fixed up, further to that, there was no willingness to adjourn application – to adjourn the date for trial.  The respondent had a time – I asked Justice Ryan, and it would be very simple – he had opportunity to simply give more time at the hearing and he has not done that.

The respondent and Justice Jessup were aware of my concern from the start.  I voiced my objection to Justice Jessup.  The respondents were aware all the way through, including when I supplied them with my documents in the High Court also I was seeking, should they were willing, as they tried to deceive the Court today to do any adjournment or willing to negotiate they would have done so and I would withdraw my summons. They have not done that so that is…..for all.

Further to that I start with a principle.  I contacted authority – provided a list of authorities and a general principle for granting interim injunction are, it has to be – legal right has to be breached, which I provided – that is my legal rights were breached – public importance and for appropriate administration of justice.  I will come back, if I have got the time, to this principle.

The specific principle stated by Justice Gleeson in Australian Broadcasting Corporation v Lenah Game Meats of 1999, page 217 to 218 are that there have to be a “serious questions” of law to be answered.  I have to provide that…..there “will suffer” irreversible “irreparable injury” if injunction is not granted and the damages will not be able to adequately compensate for such injury and “the balance of convenience” for granting such an injunction.

I may start, actually, from the latest – on importance, balance of convenience.  I issued a notice of constitutional matter in these proceedings and I posted – I dispensed them to Attorney-General on the 27th and I am still awaiting responses, so as a matter of convenience I think we should give a time for people who want to intervene to intervene and to fully assume if anyone wants to intervene and what their responses would be.  That would be very convenient for everyone concerned.  Then, everyone needs a time to reflect upon the matters and there will be a clarification of the issue and when the matter will go to trial everyone will know that the trial will be much fairer, more just, that they consented, lawful, and the date has to be negotiated.

As far as point to the specific principle, I will suffer irreversible injury.  I already suffered injury because the date for trial was set up against my will.  I was abused.  I felt I was put down.  I felt not like a legal person.  I was treated not like a legal person.  I was basically bullied by Mr McKenney.  I was treated badly, not like a legal person.  My objections were completely ignored, so under those circumstances, if I have been treated like that by the trial judge who is supposed to go to trial I would not expect any better treatment at trial.

I have been treated very badly, basically, and I already suffered injury.  If this is going to – if this were a possibility of going on to trial under Justice Jessup I put extensive evidence of the kind of defences.  It is highly defamatory, highly vilifying, and constitutes a criminal label, so in the reason for judgment as it happened previously in my court cases, certainly the reason for judgment will contain this criminal label and no compensation will ever – will ever take away my reputation back.  If it is printed it will go to the public and it will be printed by the court of law and there is no compensation which can – I can recover my reputation when the stamps will be given by the court of law.

I have to refer the Court to what has happened to me over the last three years because such a huge misjustice and travesty of justice has been committed by the Federal Court in 2004, as a consequence which I suffered today and may suffer for the rest of my life and I think that is a very serious issue and a very serious issue to consider.  There has been abuse.  There has been duress.  A trial is forceful, will constitute psychological violence.

I will go to trial as not a free person who has consented to trial and I am the applicant and if this trial will go ahead I will be treated like a criminal, basically, because I think the criminal do not have a say about the date of their trial.  Maybe even a criminal have the say because they representative - negotiate a date for trial which this right has been refused to me.  So, such abuse cannot go unnoticed.

Further to that I go back to the general principle of legal rights.  My legal rights were breached entirely – entirely.  There was no negotiation.  I was not treated like a legal person.  I was not given a right.  There was no willingness to negotiate.  Basically, I cannot go to trial under this term and condition.  I cannot go to trial without being prepared for trial, firstly, and secondly, when this trial has not been consented for me and when I am not treated as a fully legal person but the judge who is supposed to be conducting the trial.

This is a matter of public importance.  We are talking about childcare.  We are talking about people who are working with childcare and the issue of the importance to public.  The public wants to know who works with the childcare, how the childcare places are operating and what is going on in these places.  This issue touches on what is known in the workplace.  It concerns the relationship between employee/employer, is treating employee as a slave without rights is socially acceptable, or cruelty against employee by the employer socially acceptable.

The public interest is that travesty of justice will not be allowed.  Every effort should be made to ensure that such things will not happen. As I stated in my affidavits, the injunction should be given and because the cycle of travesty and abuse should be stopped and broken now it is time to reflect and start in a lawful and fair way.

For the proper administration of justice it is required that there is no such things as I am concerned with, a date for trial.  There is such things as forceful trial should not happen in this case, especially in relation to the applicant.  It should not happen to anyone for that reason.  There are serious questions of law.  I issued the notice of constitutional matter which has to be responded to first and I raised a serious question of law.

There are serious questions.  There are questions of slavery, there are questions of cruelty and the way the Act of Parliament are abused and inappropriately applied.  These are issues of fixing and – fixing trial to actual trial.  There are issues of final determination by the way the procedural and other issues were made.  There are issues that the decision were made of substance and value statement by Justice Jessup prior to trial.  I think I am running out of time.

HER HONOUR:   Is there anything further you wish to say, Mrs Bahonko?

MS BAHONKO:   I wish to refer to a case of Hilda Zhang, reported at the High Court on 10 May 2006 - the High Court heard her appeal because as this - and the precedent was set that worker’s rights are fundamental constitutional rights are connected to their constitutional rights.

HER HONOUR:   Can I ask you whether you have had a chance to file your written case in respect of your application for special leave and your draft notice of appeal?

MS BAHONKO:   I have got draft notice of appeal but I did not have a chance to make a full written case which I am intending to.

HER HONOUR:   Yes.

MS BAHONKO:   That is where I want to come to to finalise.  I have got a special leave for appeal application in place and the final things will be that that should be determined first.  I even ask for the consideration of the respondent that I will ask for expeditious determination of such a leave and I will make my written case as soon as possible for that reason, so that can be determined as soon as practicable and possible.

HER HONOUR:   Yes.

MS BAHONKO:   So, to finish up with all of that, I believe that the interim injunction must be granted because my case meets all the requirements of the principle which are applied.  Even further to that it is very unusual and stronger for interim injunctions because the issue of abuse and non‑consented trial and treating as not a legal person are stronger than not even those principles suggest.  I request that such a – there was not any other option open before me and I presented proof in my affidavits and I

request of course that such an interim injunction will be granted, especially in the case when I have got a constitutional matter and leave to appeal in this Court.  So, it is quite appropriate for this Court to issue such injunctions because there is this matter to consider for special leave to appeal and there is a notice of a constitutional matter.  Thank you.

HER HONOUR:   Thank you, Mrs Bahonko.  Yes, Mr McKenney.  Do you wish to reply?

MR McKENNEY:   Just very briefly, your Honour, on a couple of matters.  As far as the applicant’s agitation about the proper administration of justice, my submission on that, your Honour, is that the matter before the Federal Court needs to be disposed of.  It has been on foot, as indicated, since February 2006 and has proceeded through all the interlocutory steps.

As far as the unconsented to date of the trial, your Honour, the Court, in my respectful submission, the Federal Court, has a duty to dispose of matters before it in a timely and efficient way.  The applicant filed this application originally in February of last year.  Another proceeding was issued in about August of last year.  It was consolidated in November of last year to proceedings and, your Honour, the trial date was set by Justice Jessup on 7 February of this year.  The applicant, like the respondent, has therefore had time to prepare the matter for trial.  I wish to say nothing further, your Honour.

HER HONOUR:   Thank you.

This application by summons filed by the applicant on Friday, 23 March 2007 seeks an injunction against the respondents preventing them from taking part in a trial in the Federal Court of Australia set down for hearing on Monday, 2 April 2007.  The summons also seeks an expedited hearing of an application for special leave to appeal from orders forming part of the pre‑trial process.

In this Court, the applicant has filed in this Court an application for special leave to appeal from the orders of a judge of the Federal Court refusing leave to appeal from certain interlocutory orders of another judge of the Federal Court.  On 7 and 23 February 2007 Justice Jessup made certain interlocutory orders in respect of the proceedings commenced by the applicant.

The proceedings relate first to an application under the Workplace Relations Act 1996 (Cth) regarding the respondent’s termination of the applicant’s employment on 11 November 2005 and, secondly, to an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) regarding an allegation of unlawful discrimination which possibly also falls under the Racial Discrimination Act 1975 (Cth).

These are the matters listed for trial on Monday, 2 April 2007.  The applicant sought leave to appeal from those interlocutory orders of Justice Jessup but that application was refused by Justice Ryan on 15 March 2007.  His Honour’s reasons identify and apply the principles which govern the grant of leave to appeal from such orders.

The application today for grant of an interlocutory injunction directed to the respondents seeks the same relief, in essence, as might follow from the grant of an adjournment in response to any application made on proper grounds.

In his reasons for judgment Justice Ryan noted, in particular, that the applicant may make an application on proper grounds for an adjournment of the trial on 2 April 2007.  There is no material before me which would suggest that the applicant’s position in that respect has been altered.  It was on 23 March 2007 that the applicant filed an application seeking special leave to appeal from those orders of Justice Ryan.

The applicant claims today that the impending trial has been “fixed up” and will constitute an “abuse of process” and that she “has been treated very badly”.  There was no material before me to support those allegations.  In particular, there was no material before me to support the applicant’s claim that Justice Jessup would not preside over the trial in a manner consistent with the exercise of judicial power.

The applicant also asks today for her special leave application to be expedited. The application for special leave to this Court can be referred to a panel of two Justices to be considered in accordance with rule 41.10.5 of the High Court Rules 2004 once the written case and draft notice of appeal has been filed. The applicant indicated to the Court today that she is working on those documents and will have them ready shortly. Once those tasks have been completed the applicant’s application for special leave can be dealt with as expeditiously as the business of the Court permits.

The applicant’s summons of 23 March 2007 is dismissed.

Is there any application for costs?

MR McKENNEY:   Yes, your Honour.  The respondents apply for costs.

HER HONOUR:   Very well.  The applicant’s summons of 23 March 2007 is dismissed, with costs.

MS BAHONKO:   Can I have a say, please, your Honour?  I want this to be considered by a panel of two judges.  I feel very abused in this Court.  This judgment is quite unjust.  I provided evidence in my affidavits of abuse by Justice Jessup.  There are pages.  Evidence is there.  This Court cannot stamp abuse and force me to go to trial on Monday.

HER HONOUR:   Do you understand, Mrs Bahonko, that you ‑ ‑ ‑

MS BAHONKO:   This absolutely abuse – this abuse – you ‑ ‑ ‑

HER HONOUR:   Do you understand that you will have an opportunity on Monday to ask Justice Jessup for an adjournment?

MS BAHONKO:   Adjournment is not the issue, your Honour.  This avenue with the Federal Court has been exhausted.  The Federal Court is acting in corrupt, fraudulent manner.  I make a number of affidavits.  I have been very badly injured by Federal Court.  My present situation is due to the travesty of justice committed by the Federal Court and travesty of justice is underway, again, exactly follow the case of Justice Merkel.  This is a very serious matter.

This Court cannot stamp – put stamp on abuse.  No one in this country – we have to wait for Attorney-General to return back to me messages.  No one in this country should go to trial – un‑consented trial.  No one in this country should be forced to go to trial when one is not ready for trial.  How could justice be done properly when I am not prepared for the trial?

HER HONOUR:   Well, Mrs Bahonko, I have already stated in my ruling, but I will repeat it to make sure you have understood that I have ‑ ‑ ‑

MS BAHONKO:   I want the leave to – I want this to go to the two judges, please, and ‑ ‑ ‑

HER HONOUR:   I have already stated that this matter can be referred to a panel of two Justices, so what you wish in respect of that can be done and all that is required to be done before that takes place is the filing of your written case and your draft notice of appeal.

MS BAHONKO:   I want injunction to the issue of my summons to go to the judges.  I want the two – a panel of two judges to decide injunction not on special leave for appeal.  Injunction – interim injunction is very important to me.  I have been - you have put a stamp, your Honour, on abuse of me.  This is unprecedented violence - unprecedented violence and your Honour put stamp on such a violence and you are a woman.  Are you a woman?  I do not understand.  This is against natural justice.  This is against the principle I stated and this is absolutely unacceptable for the Justice of the High Court to put a stamp on violence and force me under circumstances and evidence I provided ‑ ‑ ‑

HER HONOUR:   Mrs Bahonko, I have to interrupt you, I am bound to say.  I have dealt with today’s application.  If you wish to make any application before Justice Jessup on Monday or any further applications to this Court that is a matter for you, but today’s application has been disposed of.  I now propose to adjourn the Court.

MS BAHONKO:   Well, I will appeal to the full panel.

AT 10.29 AM THE MATTER WAS CONCLUDED