Bahonko v Sterjov

Case [2007] FCA 1717

FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 1717

PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory order of single judge of this Court refusing to grant stay order – whether decision attended with sufficient doubt – application for leave to appeal from order of single judge of this Court refusing leave to appeal from interlocutory decision – whether appeal lies from a decision to grant or refuse leave – application to amend reasons of another judge of this Court – whether power to amend reasons exists – application for leave to initiate contempt proceedings where leave previously denied – application to join the Commonwealth of Australia as a party – applications dismissed.

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(2)(a)

Federal Court of Australia Rules 1979 (Cth) O 52 r 17, O 52 r 2AA, O 46 r 7A, O 40

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 cited
Bahonko v Sterjov [2007] FCA 867 referred to
Bahonko v Sterjov [2007] FCA 1244 referred to
Bahonko v Sterjov [2007] FCA 1341 referred to
Bahonko v Sterjov [2007] FCA 1377 referred to
Bahonko v Sterjov [2007] FCA 1555 referred to
Bahonko v Sterjov [2007] FCA 1556 referred to
Bird v Free (1994) 126 ALR 475 cited
Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353 cited
Cabassi v Villa (1940) 64 CLR 130 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Fingleton v R (2005) 216 ALR 474 cited
Mann v O’Neill (1997) 191 CLR 204 cited
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 cited
Reid v Nairne (1985) 60 ALR 419 cited
Sirros v Moore [1975] QB 118 cited
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 cited
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 cited

STANISLAWA BAHONKO v KOSTA STERJOV, SNEZANA STERJOVA, LISA MCEWAN AND LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD
VID 949 OF 2007

LANDER J
14 NOVEMBER 2007
SYDNEY (HEARD IN MELBOURNE)


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 949 OF 2007

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

KOSTA STERJOV
First Respondent

SNEZANA STERJOVA
Second Respondent

LISA MCEWAN
Third Respondent

LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD
Fourth Respondent

JUDGE:

LANDER J

DATE OF ORDER:

14 NOVEMBER 2007

WHERE MADE:

SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.The applicant’s notice of motion as amended on 1 November 2007 be dismissed.

2.The applicant pay the respondents’ costs of and incidental to the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 949 OF 2007

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

KOSTA STERJOV
First Respondent

SNEZANA STERJOVA
Second Respondent

LISA MCEWAN
Third Respondent

LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD
Fourth…

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Details
AGLC
Bahonko v Sterjov [2007] FCA 1717
Case
[2007] FCA 1717
Decision Date

CaseChat Overview and Summary

The case of Bahonko v Sterjov involves the applicant seeking leave to appeal from certain orders made by Justice Gordon and raising other consequential reliefs. The case was heard before the Federal Court of Australia, where the applicant was seeking to amend her notice of motion to include various claims against the respondents' legal representatives and judges, including allegations of corruption and defamation. The application was supported by three affidavits, which contained serious allegations but lacked substantive evidence. The court was required to decide whether the application should be granted and if the claims made in the affidavits were substantiated.

The court found that the claims made in the affidavits were unsubstantiated and scandalous. The applicant had accused the respondents’ legal representatives and judges of various wrongdoings, including corruption and defamation, but these allegations were not supported by any evidence. The court noted that the applicant had a history of making similar allegations against judicial officers without any basis. The court held that the application was an abuse of the court process and the allegations were scandalous and vexatious. Consequently, the court dismissed the application and ordered the applicant to pay the respondents' costs of and incidental to the proceeding.

In summary, the court found that the applicant's notice of motion was dismissed and that she was to pay the respondents' costs. The court ruled that the claims made in the affidavits were unsubstantiated and scandalous, and that the applicant had abused the court process. The decision underscores the importance of substantiating allegations made in court and the consequences of making scandalous and vexatious claims.

Orders

Orders of the court

1. The applicant’s notice of motion as amended on 1 November 2007 be dismissed.

2. The applicant pay the respondents’ costs of and incidental to the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At the hearing the applicant sought to and was given leave to amend paragraph 9 by deleting reference to the Federal Court of Australia and by deleting paragraph 10 and substituting:10.Justice Gordon is directed to review her reasons for judgment in proceedings VID 822/07.Those two amendments were made during her address to the Court on 1 November 2007.The “evidence” in support of the notice of motion The notice of motion was supported by three affidavits. The first, sworn on 15 October 2007, merely exhibited Gordon J’s reasons and a proposed notice of appeal. The affidavit sought a copy of the transcript of the hearing before Gordon J. The second, sworn on 18 October 2007, exhibited a corrected draft notice of appeal. The third affidavit, sworn on 30 October 2007, again makes very serious allegations against the respondents’ legal representatives and judges of this Court. Again, the allegations are not supported by any evidence. On this occasion, the applicant has accused the judges of this Court of giving “corrupt support” to the respondents’ legal representatives. She accuses Gordon J of a wilful criminal act in the publication and content of her reasons. She says Gordon J is in contempt of court and guilty of abuse of office, defamation, intimidation and blackmail. She says that Gordon J’s description of the applicant’s affidavit as scandalous and vexatious “serves as intentional blackmail & intimidation of me and retaliation on behalf of Mr McKenney & the Federal Court of Australia & a deceit of the public in order to be able to issue costs against me when under the WRA such costs are not to be made.” The applicant concludes:34. Issuing costs in contravention of the WRA is a hard evidence of the blackmail & intimidation of me and trespass of the Act by Justice Gordon & previous Justices, Justice Jessup & Goldberg.35. This is an evidence of corruption & serious trespasses of the Law & Justice taking place in the Federal Court of Australia, therefore, the Commonwealth responsibility. Apart from the unsubstantiated complaints of the conduct of the respondents’ legal representatives and the judges of this Court, the affidavit does not address the issues raised in the notice of motion. I shall later return to the contents of this affidavit.The orders sought Paragraph 1 of the notice of motion before me seeks leave to appeal from Gordon J’s orders on the first notice of motion. Paragraphs 2 to 5 seek consequential orders on the assumption that the leave sought in paragraph 1 be granted. Paragraph 6 seeks leave to appeal from Gordon J’s orders dismissing the applicant’s application by a second notice of motion for leave to appeal from Goldberg J’s refusal to grant a stay of Jessup J’s orders. Paragraph 8 is a similar application to that for which Jessup J refused leave during the trial and dismissed by Gordon J in the first notice of motion. Paragraphs 7 and 10 (even as amended) are scandalous. Paragraph 9 is misconceived. I will deal with each of these paragraphs in turn below.Paragraph 1

Decision

Reasons for decision

LANDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LANDER J

The first notice of motion challenged Jessup J’s orders for costs and sought other relief including access to transcript. The second notice of motion purported to be an application for leave to appeal from Goldberg J’s decision of 27 August 2007 refusing to stay Jessup J’s orders of 15 August 2007 and consequential relief.The notice of motion under consideration The amended notice of motion for hearing before me seeks the following orders:1. Appellant is given leave to appeal from the orders NO: 2 and 3 given by Justice Gordon on 8 October 2007 and a part of the order 1, which part is not granting appellant an access to Transcripts of proceedings in VID 114/06 & VID 756/06 in full. (a) All Transcripts be provided in full.2. The Notice of Appeal from Justice Gordon’s orders NO: 2 and 3 and part of the order 1 to be consolidated with the existing Notice of appeal in the matter No: VID 743/07.3. Appellant has leave to amend her Notice of Appeal in VID 743/07 to include appeal from Justice Gordon’s orders No: 2 and 3 and part of the order 1 of 8 October 2007.4. Transcripts of proceedings before Justice Gordon on 8 October 2007 be made available to the appellant & be part of the leave to appeal hearing.5. The matter VID 822/07 is an integral part of VID 743/07 as Justice Gordon shared decision in those matters.6. Appellant is given leave to appeal from judgments & whole of the orders of Justice Gordon given on 8 October 2007 in VID 822/07 and paragraphs 2,3 & 4 applies to this leave & those orders are treated as if given in VID 743/07.7. Defamatory of the appellant parts of the reasons for judgments given by Justice Gordon on 08/10/07 are removed, replaced with corrective statements and apology statements and damages are paid to the appellant by the Federal Court of Australia.8. Mr McKenney and Mr F Vitiello are charged with the contempt of the court and wilful defamation of the appellant in the principal matter VID 114/06 and the consequential matters VID 743/07 and VID 822/07 and pay damages to the appellant & are restrain from participation in any of her matters.9. The Federal Court of Australia & the Commonwealth of Australia are added as parties to proceedings: VID 949/07 and the principal Appeal proceedings VID 743/07.10. Justice Gordon is suspended from her office having engaged in a wilful and criminal defamation of the appellant in VID 828/07. At the hearing the applicant sought to and was given leave to amend paragraph 9 by deleting reference to the Federal Court of Australia and by deleting paragraph 10 and substituting:10.Justice Gordon is directed to review her reasons for judgment in proceedings VID 822/07.Those two amendments were made during her address to the Court on 1 November 2007.The “evidence” in support of the notice of motion The notice of motion was supported by three affidavits. The first, sworn on 15 October 2007, merely exhibited Gordon J’s reasons and a proposed notice of appeal. The affidavit sought a copy of the transcript of the hearing before Gordon J. The second, sworn on 18 October 2007, exhibited a corrected draft notice of appeal. The third affidavit, sworn on 30 October 2007, again makes very serious allegations against the respondents’ legal representatives and judges of this Court. Again, the allegations are not supported by any evidence. On this occasion, the applicant has accused the judges of this Court of giving “corrupt support” to the respondents’ legal representatives. She accuses Gordon J of a wilful criminal act in the publication and content of her reasons. She says Gordon J is in contempt of court and guilty of abuse of office, defamation, intimidation and blackmail. She says that Gordon J’s description of the applicant’s affidavit as scandalous and vexatious “serves as intentional blackmail & intimidation of me and retaliation on behalf of Mr McKenney & the Federal Court of Australia & a deceit of the public in order to be able to issue costs against me when under the WRA such costs are not to be made.” The applicant concludes:34. Issuing costs in contravention of the WRA is a hard evidence of the blackmail & intimidation of me and trespass of the Act by Justice Gordon & previous Justices, Justice Jessup & Goldberg.35. This is an evidence of corruption & serious trespasses of the Law & Justice taking place in the Federal Court of Australia, therefore, the Commonwealth responsibility.