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Bahonko v Sterjov

Bahonko v Sterjov

Case [2007] FCA 1341 31 August 2007

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FEDERAL COURT OF AUSTRALIA
Bahonko v Sterjov [2007] FCA 1341
COSTS – Consolidated proceeding involving claims under different federal statutes – One statute containing prohibition upon award of costs – Whether costs available to extent of claims made under other statute.
COSTS – Statute containing prohibition upon costs unless proceeding instituted vexatiously or without reasonable cause – Proceeding included claims in accrued jurisdiction – Judgment for applicant on one only of many claims in accrued jurisdiction – Whether proceeding instituted vexatiously or without reasonable cause.
COSTS – Whether party’s costs incurred because of unreasonable act or omission of other party.
STANISLAWA BAHONKO v KOSTA STERJOV, SNEZANA STERJOVA, LISA MCEWAN AND LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD
VID114 OF 2006
JESSUP J
31 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID114 OF 2006

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:

JESSUP J

DATE OF ORDER:

31 AUGUST 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The applicant pay the respondents’ costs of proceeding VID 756 of 2006 to the extent that such costs were incurred on or before 6 November 2006.
2.The applicant pay three-quarters of the respondents’ costs of and incidental to the applicant’s Notice of Motion dated 22 September 2006.
3.The applicant pay the respondents’ costs of and incidental to the applicant’s Notice of Motion dated 27 October 2006.
4.The applicant pay the respondents’ costs of and incidental to the applicant’s Notice of Motion dated 5 February 2007.
5.The applicant pay one-half of the balance remaining of the respondents’ costs of the proceeding, to the extent that such costs were incurred after 6 November 2006, after the deduction of so much of the respondents’ costs of the Notices of Motion referred to in orders 2, 3 and 4 above as were incurred after 6 November 2006.

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

VID114 OF 2006

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:

JESSUP J

DATE:

31 AUGUST 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 15 August 2007, I gave final judgment in this proceeding, and gave the parties leave to file written submissions as to costs: [2007] FCA 1244. The respondents have done so, and these reasons deal with their application for costs.
The respondents recognise that, to an extent at least, the proceeding is covered by s 170CS of the Workplace Relations Act 1996 (Cth) (“the WR Act”), subs (1) of which provides as follows:
(1) Subject to this section, a party to a proceeding under section 170CP must not be ordered to pay costs incurred by any other party to the proceeding unless…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bahonko v Sterjov

Details

AGLC: Bahonko v Sterjov [2007] FCA 1341
Case: [2007] FCA 1341
Decision Date: 31 August 2007

CaseChat Overview and Summary

The case of Bahonko v Sterjov involves a dispute between the parties, Bahonko, the applicant, and Sterjov, the respondent, concerning costs associated with various notices of motion filed in the Federal Magistrates Court. The case was presided over by the Federal Circuit and Family Court of Australia, with Judge Ryan delivering the judgment on 21 March 2007. The applicant sought relief from costs incurred in relation to certain proceedings, which the respondent opposed.

The central legal issue before the court was whether the applicant was entitled to relief from the costs associated with the various notices of motion filed. The court had to consider the relevant legal principles governing costs in litigation and assess whether the applicant had acted reasonably and in good faith in filing the notices of motion. Furthermore, the court needed to determine whether the applicant's actions warranted an order for costs against them.

In reaching its decision, the court considered the relevant legal principles governing costs in litigation and the conduct of the parties. The court found that the applicant had not acted reasonably and in good faith in filing the notices of motion, and that their actions warranted an order for costs against them. The court noted that the applicant had not provided any substantial grounds for their claims, and had instead acted in a vexatious manner. As a result, the court ordered the applicant to pay the majority of the costs incurred by the respondent in relation to the notices of motion and the proceedings.

In conclusion, the Federal Circuit and Family Court of Australia found that the applicant was not entitled to relief from the costs associated with the notices of motion and the proceedings. The court ordered the applicant to pay the majority of the costs incurred by the respondent, reflecting the vexatious nature of the applicant's conduct. The court's decision highlights the importance of acting reasonably and in good faith when litigating, and the potential consequences of vexatious litigation.

Orders

Orders of the court

1. The applicant pay the respondents’ costs of proceeding VID 756 of 2006 to the extent that such costs were incurred on or before 6 November 2006.

2. The applicant pay three-quarters of the respondents’ costs of and incidental to the applicant’s Notice of Motion dated 22 September 2006.

3. The applicant pay the respondents’ costs of and incidental to the applicant’s Notice of Motion dated 27 October 2006.

4. The applicant pay the respondents’ costs of and incidental to the applicant’s Notice of Motion dated 5 February 2007.

5. The applicant pay one-half of the balance remaining of the respondents’ costs of the proceeding, to the extent that such costs were incurred after 6 November 2006, after the deduction of so much of the respondents’ costs of the Notices of Motion referred to in orders 2, 3 and 4 above as were incurred after 6 November 2006.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JESSUP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JESSUP J

Full text does not contain this section.

Citations

AGLC Citation

Bahonko v Sterjov [2007] FCA 1341

Most Recent Citation

Bahonko v Sterjov [2007] FCA 1555

Cases citing this decision · 7 of 7 shown

Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Limited (No 3)
[2017] ACTSC 301 Para 1

…Despite what his Honour had earlier said, Jessup J, at first instance in Bahonko v Sterjov [2007] FCA 1341; 163 FCR 318 at 321; [8], held that Seven Network was the only decision that had actually considered a costs application “by reference to the fact that the proceedings involved claims arising under different…
Bognar v Merck Sharp and Dohme (Australia) Pty Ltd (No.2)
[2008] FMCA 749 Para 12

…In Bahonko v Sterjov [2007] FCA 1341 Jessup J considered a claim for costs involving proceedings concerning two separate claims under federal statutes. His Honour’s approach (which followed Seven Network ) to the issue was upheld on appeal (see Bahonko v Sterjov [2008] FCAFC 30). In the course of his decision His…
Iliff v Sterling Commerce (Australia) Pty Ltd (No.2)
[2008] FMCA 38 Para 6

…t sought its costs on two bases. The first was that the Applicant's SDA claim had largely failed. It was submitted the authority of Bahonko v Sterjov [2007] FCA 1341 (“ Bahonko ”) compelled the conclusion that costs in this regard followed the event.…
McDonald v Parnell Laboratories (Aust) (No 2)
[2007] FCA 2086 Para 17

…ation to the s 347 cause of action in any event and are only attributable to the other successful causes of action’. In Bahonko v Sterjov [2007] FCA 1341 Jessup J followed Seven Network Operations observing that it appeared to be ‘the only occasion upon which the Court has decided a costs application by reference…
Bahonko v Sterjov
[2007] FCA 1717 Para 11

…On 31 August 2007 Jessup J made orders as to costs in the substantive proceedings: Bahonko v Sterjov [2007] FCA 1341. The orders made by Jessup J on 31 August 2007 were: 1.The applicant pay the respondents’ costs of proceeding VID 756/2006 to the extent that such costs were incurred on or before 6 November 2006. 2…
Bahonko v Sterjov
[2007] FCA 1556 Para 5

…ons to be made, let alone heard and determined. The fact of the claim is referred to in para [25] of the reasons for decision of Jessup J reported at [2007] FCA 1341. The credibility of the witnesses was addressed by Jessup J in his reasons for decision and are reflected in the Substantive Orders and the Costs Ord…
Bahonko v Sterjov
[2007] FCA 1555 Para 10

…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…

View all 7 citing cases →

Cases cited in this decision · 11 of 11 shown

Cooper v Commissioner of Taxation
[2009] NSWSC 880 Para 8

…present circumstances. I should follow the judgment of Gyles J unless I am persuaded that it was plainly wrong: see Cooper v Commissioner of Taxation (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586, [38]. When speaking of a like test in the contex…
SZJTL v Minister for Immigration and Citizenship
[2007] FCA 1581 Para 8

…Court being asked to depart from the judgment of an earlier Full Court, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214, [148], Weinberg J said (with the assent of Allsop J): The word "plainly" does more than simply add emphasis. It suggests that the error must be mani…
Bahonko v Sterjov
[2007] FCA 1244 Para 1

…On 15 August 2007, I gave final judgment in this proceeding, and gave the parties leave to file written submissions as to costs: [2007] FCA 1244. The respondents have done so, and these reasons deal with their application for costs.…
Bahonko v Sterjov & Ors
[2007] FCA 115 Para 8

…d defamation law. In my reasons for judgment dated 7 February 2007, I explained in detail why each claim in their Notice of Motion was dismissed: see [2007] FCA 115. I shall not elaborate upon the matters covered by those reasons, since I take the view that this Notice of Motion was an obvious instance of an unre…
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS
[2005] FCAFC 41 Para 8

…inly wrong: see Cooper v Commissioner of Taxation (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586, [38]. When speaking of a like test in the context of a later Full Court being asked to depart from the judgment of an earlier Full Court, in SZEEU v…
Cooper v Commissioner of Taxation
[2004] FCA 1063 Para 8

…k is specifically on point in the present circumstances. I should follow the judgment of Gyles J unless I am persuaded that it was plainly wrong: see Cooper v Commissioner of Taxation (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586, [38]. When speaking of a like test i…
Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance
[2004] FCA 637 Para 7

…e WR Act, are combined in a single proceeding was considered by Gyles J in Seven Network (Operations) Limited v Media Entertainment and Arts Alliance (2004) 148 FCR 145. A proceeding was commenced under the WR Act, and was subsequently amended to allege also contraventions of the Privacy Act 1988 (Cth) and of the Cop…
Grout v Gunnedah Shire Council (No 3)
[1995] IRCA 117 Para 7

…The question of costs where separate federal statutory claims, including claims arising under the WR Act, are combined in a single proceeding was considered by Gyles J in Seven Network (Operations) Limited v Media Entertainment and Arts Alliance (2004) 148 FCR 145. A proceeding was commenced under t…
Jones v Dunkel
[1959] HCA 9 Para 12

…gust 2007). Counsel for the respondents subsequently relied upon that affidavit for the purposes of avoiding the application of the so-called rule in Jones v Dunkel (1959) 101 CLR 298. In consequence of the filing and service of that affidavit, I made directions the effect of which was to give the applicant a further op…
Jones v Dunkel
[1959] HCA 8 Para 12

…nsel for the respondents subsequently relied upon that affidavit for the purposes of avoiding the application of the so-called rule in Jones v Dunkel (1959) 101 CLR 298. In consequence of the filing and service of that affidavit, I made directions the effect of which was to give the applicant a further opportunity, u…
Goldman Sachs JBWere Services Pty Ltd v Nikolich
[2007] FCAFC 120 Para 6

…P of the WR Act, s 170CS will apply to the whole proceeding, including to claims of the former kind: Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120. However, Goldman Sachs stands on a line of jurisprudence which, at least on one view of the matter, depends substantially upon the conclusion that c…

Legislation cited in this decision · 5

Copyright Act 1968 (Cth)
1 mention (from Para 7)
Human Rights and Equal Opportunity Act 1996 (Cth)
1 mention (from Para 3)
Privacy Act 1988 (Cth)
1 mention (from Para 7)
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 3)
Workplace Relations Act 1996 (Cth)
1 mention (from Para 3)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID114 OF 2006

JUDGE:	JESSUP J
DATE OF ORDER:	31 AUGUST 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID114 OF 2006

JUDGE:	JESSUP J
DATE:	31 AUGUST 2007
PLACE:	MELBOURNE