FEDERAL COURT OF AUSTRALIA

Bahonko v The Commonwealth [2008] FCAFC 16

Federal Court of Australia Act 1976 (Cth), s 31A

Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 related

STANISLAWA BAHONKO v THE COMMONWEALTH

VID 1191 OF 2007

GYLES, STONE & BUCHANAN JJ

28 FEBRUARY 2008

MELBOURNE

THE COURT ORDERS THAT:

1.         The proceeding be dismissed.

2.         The applicant is to pay the costs of the respondent.

3.         The applicant is to pay the costs of the parties who appeared in answer to her Notice of Motion for joinder, namely:

·          Nurses Board of Victoria

·          Royal Melbourne Institute of Technology

·          The Minister for Education in the State of Victoria and the Minister for Health in the State of Victoria

·          Victorian Institute of Teaching

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

REASONS FOR JUDGMENT

GYLES J

1                     The substantive matter before the Court this morning is an application for an order of review seeking to review the decision, so it is said, of a Registrar of the Court not to accept for filing a notice of motion upon direction from a Judge.  The only respondent to the proceeding is the Commonwealth.  The Commonwealth seeks an order that it be removed from the proceeding because there is no relevant cause of action against it.  That is plainly correct.  The applicant has given notice that she wishes to add a number of other respondents to the proceeding and they appear in order to oppose such an application.  None of those respondents would be the appropriate respondent.  There are some unresolved procedural questions concerning the ability to challenge a decision such as this and, if so, how that is to be done.  We need not address that issue today because, in my opinion, once the Commonwealth is removed, as it must be removed, that draws attention to a fundamental difficulty with the matter, going beyond the question of parties.  

2                     The notice of motion which was sought to be filed sought three orders:

“1.       Registrar is directed to file & issue the Notice of Appeal against the orders of Justice Weinberg given on 11 October 2006 in the matter of Stanislawa Bahonko V RMIT, The Minister for Education of the State of Victoria & VIT.

2.         The matter arising out of this notice is consolidated with the applicant’s existing appeal NO: 890/07 against the Nurses Board of Victoria and Former Minister for Health/Current Minister for Education Bronwyn Pike.

OR

3.         The Registrar is directed to file & issue a Court Application of Stanislawa Bahonko against the RMIT, The Minister for Education of the State of Victoria VIT & the State of Victoria under the HREOCA 1986, the Acts attached in its Schedules & the Judicial Review Act 1977.”

3                     The motion is simply not in a form known to the Court.  A motion is inappropriate as such a commencing process and the orders which are sought are simply not within the ordinary scope of the Court to make.  The Registrar was perfectly entitled, indeed bound, in my opinion, to refuse such a notice of motion.  I venture the view that a good deal of the problems occasioned in this litigation might be the result of what may appear to be a merciful extension of the Federal Court Rules to assist the applicant, but which ultimately leaves the position in a very unsatisfactory state.  Reference has been made to an affidavit in support of the notice of motion which is dated later than the notice of motion.  Again, if the direction did relate to that affidavit, it was perfectly appropriate.  The affidavit (and I do not set it out here) is argumentative in the extreme; it does not present any clear material in support of the notice of motion; it is discursive; and it contains much that is both inadmissible and scandalous.  The reality is that this proceeding has no substance at its heart and it should not be permitted to proceed. 

4                     There is no procedural amendment which is now sought by this applicant which would cure any defect.  The defect is simply not curable.  The Registrar’s direction, whether or not it is able to be challenged, is perfectly defensible and I can see no basis upon which it could be impeached.  That being so, the Court should not simply remove the Commonwealth as a party but, acting pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), should dismiss this proceeding and that is what I propose.  

STONE J

5                     I agree with the orders proposed by the presiding judge and with his reasons for those orders.

BUCHANAN J

6                     I agree with Gyles J.

GYLES J

7                     The orders of the Court are:

(1)               The proceeding be dismissed.

(2)               The applicant is to pay the costs of the respondent.

(3)               The applicant is to pay the costs of the parties who appeared in answer to her Notice of Motion for joinder, namely:

·           Nurses Board of Victoria

·           Royal Melbourne Institute of Technology

·           The Minister for Education in the State of Victoria and the Minister for Health in the State of Victoria

·           Victorian Institute of Teaching

Associate:

Dated:         29 February 2008