Bahonko v Sterjov

Case [2007] FCA 1555

FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 1555

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory orders – where interlocutory orders dismissing an application for stay of substantive orders pending the determination of an appeal – where stay was without utility and / or inappropriate because substantive orders were the subject of a pending appeal – application to amend substantive notice of appeal – where additional grounds were without merit – where additional grounds did not involve an appellable decision

Federal Court of Australia Act 1976 (Cth) ss 24 and 25
Federal Court Rules O 46 r 7A and O 52 r 17(1)

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 867 referred to
Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 applied
Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 cited
Cubillo v Commonwealth (2001) 112 FCR 455 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Paramasivam v Randwick City Council [2005] FCA 369 referred to
Powerflex Services Pty Ltd v Data Access Co (1996) 67 FCR 65 applied
Young v Secretary for Department of Family and Community Services (2003) 76 ALD 118 applied

STANISLAWA BAHONKO v KOSTA STERJOV, SNEZANA STERJOVA, LISA MCEWAN AND LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD
VID 822 OF 2007

GORDON J
8 OCTOBER 2007
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 822 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:

GORDON J

DATE OF ORDER:

8 OCTOBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The notice of motion as amended on 8 October 2007 is dismissed.

2.The applicant is to pay the respondents’ costs of 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 822 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:

GORDON J

DATE:

8 OCTOBER 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

APPLICATION

  1. In this matter, the applicant (“Ms Bahonko”) has applied by notice of motion dated 3 September 2007 (as corrected on 5 September 2007 and amended at the hearing on 8 October 2007) (“the Notice of Motion”) seeking the following relief:

    “1.Leave to appeal from the orders given by Justice Goldberg of 27 August 2007 is granted.

    2.This leave to be consolidated with the existing appeal matter No:  VID 743/07.

    3.This leave to appeal hearing to progress into a direction hearing in the appeal matter VID 743/07.

    4.Appellant has leave…

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Details
AGLC
Bahonko v Sterjov [2007] FCA 1555
Case
[2007] FCA 1555
Decision Date

CaseChat Overview and Summary

The case of Bahonko v Sterjov involved a complex dispute relating to the employment and subsequent termination of Ms Bahonko at La Kosta Child Care Centre & Kindergarten Pty Ltd, managed by Ms McEwan. Ms Bahonko was employed on a trial basis and terminated just four days later due to allegations of serious misconduct, including physical and psychological abuse of children and verbal abuse of staff. Ms Bahonko filed applications under the Workplace Relations Act 1996 and the Human Rights and Equal Opportunity Act 1996, which were dismissed by Jessup J. Ms Bahonko also pursued claims in the Court’s accrued jurisdiction, with a defamation claim against La Kosta being successful, resulting in an award of $50 in damages.

The primary legal issues the court had to address were whether the substantive orders made by Jessup J, including the dismissal of Ms Bahonko's applications and the award of nominal damages, were correct. The appeal also included a challenge to the costs orders made by Jessup J in the substantive proceedings. The court's role was to review the reasoning and evidence presented by Jessup J and determine if there were any errors in law or if the findings were unreasonable.

Goldberg J dismissed an application by Ms Bahonko for a stay of the substantive orders, and Jessup J subsequently made orders regarding costs. Ms Bahonko appealed these costs orders, leading to a comprehensive review of the entire case. The court found that the substantive orders were correctly made, and the appeal was without merit. The reasoning involved a detailed analysis of the evidence and legal principles applied by Jessup J. Ultimately, the court dismissed the notice of motion and ordered Ms Bahonko to pay the respondents' costs of the proceeding.

Orders

Orders of the court

1. The notice of motion as amended on 8 October 2007 is dismissed.

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

Background

Background to the litigation

For the reasons below, I would dismiss the Notice of Motion.BACKGROUNDSubstantive Proceedings The events which give rise to the Notice of Motion have a long and complicated history. In general terms, they relate to Ms Bahonko’s employment at a kindergarten operated by the first and second respondents which was managed by the third respondent (“Ms McEwan”). Ms Bahonko had been employed, on a trial basis, at La Kosta Child Care Centre & Kindergarten Pty Ltd (“La Kosta”) on 7 November 2005. Her employment was terminated just 4 days later on 10 November 2005 on grounds of “serious misconduct” relating to allegations of physical and psychological abuse by Ms Bahonko of children at the kindergarten and verbal abuse of other staff members, including Ms McEwan: see [2007] FCA 1244 at [3]-[8]. Ms Bahonko filed two applications:(1)an application pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) (“the WR Act”) (in the form it took in November 2005) alleging contraventions of ss 170CK(2) and 170CM of the WR Act and other unlawful or tortious conduct (“the WR Act application”); and(2)an application pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1996 (Cth) (“the HREOC Act”) alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth) (“the RD Act”). The two applications were consolidated on 6 November 2006. The hearing of the applications occupied 9 separate hearing days before Jessup J between April and July 2007. Evidence relating to Ms Bahonko’s appointment at La Kosta, the period of her employment and the termination of her employment were considered at length by Jessup J: see [2007] FCA 1244 at [24]-[93]. Jessup J dismissed the applications. In addition, the Ms Bahonko also made claims against the Respondents in the Court’s accrued jurisdiction: see [123]ff. Ms Bahonko’s claim in defamation against La Kosta was upheld and Ms Bahonko was awarded $50 in damages: see [126] and [186]. The other claims in the accrued jurisdiction were dismissed. On 15 August 2007, substantive orders were made by Jessup J in the following terms:“1.To the extent not previously dealt with by the court, the motion of which the applicant gave notice on 4 May 2007 be dismissed.2.The fourth respondent pay the applicant damages in the sum of $50.3. The application otherwise be dismissed.4. The parties have leave to file and serve: (a)on or before 22 August 2007, their written submissions as to costs;(b)on or before 24 August 2007, any submission in reply to the costs submission of another party.”(“the Substantive Orders”)Appeal On 16 August 2007, Ms Bahonko filed a notice of appeal (“the Notice of Appeal”) against the Substantive Orders (“the Appeal”).Goldberg J Orders of 27 August 2007 On 27 August 2007, Goldberg J heard and dismissed an application by Ms Bahonko for a stay of the Substantive Orders: see Bahonko v Sterjov [2007] FCA 1377. Costs order On 31 August 2007, Jessup J made orders as to costs in the substantive proceedings (“the Costs Orders”): see Bahonko v Sterjov [2007] FCA 1341. On 21 September 2007, Ms Bahonko amended her Notice of Appeal to appeal the Costs Orders (“the Amended Notice of Appeal”).Contempt Charges

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GORDON J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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