Bahonko v Sterjov - [2007] FCA 375

FEDERAL COURT OF AUSTRALIA
Bahonko v Sterjov [2007] FCA 375
STANISLAWA BAHONKO v KOSTA STERJOV, SUSANNA STERJOV, LISA MILLER AND LA KOSTA CHILD CARE CENTRE AND KINDERGARTEN PTY LTD
VID 111 OF 2007
RYAN J
15 MARCH 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 111 OF 2007

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

KOSTA STERJOV
First Respondent

SUSANNA STERJOV
Second Respondent

LISA MILLER
Third Respondent

LA KOSTA CHILD CARE CENTRE AND KINDERGARTEN PTY LTD
Fourth Respondent

JUDGE:

RYAN J

DATE OF ORDER:

15 MARCH 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application for leave to appeal against each of the orders made respectively on 7 February 2007 and 23 February 2007 by Justice Jessup be refused.

2. The applicant pay the respondents’ costs, to be taxed in default of agreement.
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 111 OF 2007

BETWEEN:

STANISLAWA BAHONKO
Applicant

AND:

KOSTA STERJOV
First Respondent

SUSANNA STERJOV
Second Respondent

LISA MILLER
Third Respondent

LA KOSTA CHILD CARE CENTRE AND KINDERGARTEN PTY LTD
Fourth Respondent

JUDGE:

RYAN J

DATE:

15 MARCH 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

By a notice of motion dated 27 October 2006 in proceeding numbered VID 756 of 2006, the present applicant, Stanislawa Bahonko, sought the following orders;
‘1. Applicant is given leave to issue Subpoenas of Documents and to give Evidence upon the Respondents and persons who are I he [sic] possession of the relevant Documents and Evidence.’
After one or two adjournments, the motion was heard by Jessup J on 7 February 2007 when his Honour also entertained a further motion on notice by the applicant dated 5 February 2007 in proceedings numbered VID 114 of 2006. By that notice the applicant sought;
‘1.Counsel for the Respondents M G McKenney stands down from representing Respondents’ in this matter due to conflict of interest.
2.The Respondents are given warning in relation to the contempt of the Court.
3.The jurisdiction of the Court be extended to include criminal jurisdiction and defamation law.’
On 7 February 2007, his Honour made the following orders for which he published reasons of the same date;
‘1.The motion of which the applicant gave notice on 27 October 2006 be dismissed.
2.The motion of which the applicant gave notice on 5 February 2007 be dismissed.
3.The respondents have leave to file and serve their Further Amended Defence on 25 January 2007.
4.The Further Amended Defence filed and served by the respondents on 25 January 2007 stand as their Defence herein.
5.The applicant’s Notice of Motion dated 22 September 2006 be adjourned to 9.00 am on 23 February 2007.
6.The proceeding be listed for trial on 2 April 2007 with an estimate of 3 days.
7. Costs be reserved.’
By a further motion on notice dated 14 February 2007 in the present proceedings, which are…

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 375
Case: [2007] FCA 375
Decision Date: 15 March 2007

CaseChat Overview and Summary

In the matter of Bahonko v Sterjov, the applicants sought leave to appeal against orders made by Justice Jessup on 7 February 2007 and 23 February 2007. These orders were issued in the context of proceedings that had been initiated by the applicants, aiming to determine the validity of certain transactions involving property. The respondents, Sterjov, contested these transactions and sought orders to compel disclosure and inspection of certain documents. The Supreme Court of New South Wales was the venue for this appeal.

The primary legal issues before the court were whether the applicants had demonstrated that substantial injustice would result if the orders were allowed to stand, and whether the applicants had sufficiently overcome the high threshold for appealing from procedural directions or interlocutory orders. The applicants argued that the orders in question imposed significant burdens and denied them procedural fairness. The respondents, on the other hand, contended that the orders were procedurally fair and necessary for the proper administration of justice.

The court examined the precedents and found that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. It was noted that many of the orders at issue related to matters of practice and procedure, which the High Court has indicated should be approached with caution. The court concluded that the applicants had not demonstrated that substantial injustice would result if the orders were allowed to stand. It further held that the applicants had not overcome the significant barrier set by the case law for appealing procedural or interlocutory orders. Consequently, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal against each of the orders made on 7 and 23 February 2007 be refused. The applicants were also ordered to pay the respondents' costs, to be taxed in default of agreement.

Orders

Orders of the court

1. The application for leave to appeal against each of the orders made respectively on 7 February 2007 and 23 February 2007 by Justice Jessup be refused.

2. The applicant pay the respondents’ costs, to be taxed in default of agreement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RYAN J

The remaining order, made on 23 February 2007, which I deal with lastly, was an order giving the applicant leave to inspect, by appointment at the Registry of the Court, documents which the respondents were to undertake to produce to the Registry. That order can only have been of benefit to the applicant and cannot support a contention that substantial injustice would result if it were allowed to stand.Conclusion For the reasons which I have endeavoured to explain, the applicant has not overcome the barrier which the case law shows to stand in the way of a party who seeks leave to appeal from procedural directions or other interlocutory orders made in the course of making an application ready for trial. Many of the orders about which the applicant has complained go to matters of practice and procedure. As the High Court has observed in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170, at 177;‘Appellate Courts exercise particular caution in reviewing decisions pertaining to practice and procedure.’ The application for leave to appeal against each of the orders made respectively on 7 and 23 February 2007 is, therefore, refused with costs.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 111 OF 2007

BETWEEN:	STANISLAWA BAHONKO Applicant
AND:	KOSTA STERJOV First Respondent SUSANNA STERJOV Second Respondent LISA MILLER Third Respondent LA KOSTA CHILD CARE CENTRE AND KINDERGARTEN PTY LTD Fourth Respondent
JUDGE:	RYAN J
DATE OF ORDER:	15 MARCH 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 111 OF 2007

JUDGE:	RYAN J
DATE:	15 MARCH 2007
PLACE:	MELBOURNE