FEDERAL COURT OF AUSTRALIA

Bahonko v Nurses Board of Victoria [2008] FCAFC 29

APPEAL – appeal from an interlocutory judgment – leave to appeal required pursuant to the Federal Court of Australia Act 1976 – notice of appeal filed without leave to appeal – oral application for leave to appeal made at the hearing – no grounds made out for leave to appeal – application dismissed

PRACTICE AND PROCEDURE – unrepresented litigant – usual standards of behaviour required – vexatious proceedings – scandalous material on Court file not to be inspected without leave – costs awarded

Federal Court of Australia Act 1976 (Cth), s 24(1A), s 25(2)(b), s 31A, s 50

Human Rights and Equal Opportunity Commission Act 1996 (Cth), s 46PO

Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449

STANISLAWA BAHONKO v NURSES BOARD OF VICTORIA AND FORMER VICTORIAN MINISTER FOR HEALTH/CURRENT VICTORIAN MINISTER FOR EDUCATION

VID 890 OF 2007

GYLES, STONE AND BUCHANAN JJ

7 MARCH 2008

SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.         The document headed “Appellant’s Outline of Submission” filed on 22 February 2008 will not be available for inspection by any person without leave of the Court.

2.         Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) publication of the document referred to in Order 1 be forbidden.

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

THE COURT ORDERS THAT:

1.                  Each motion is granted.

2.                  The purported appeal is dismissed with costs.

3.                  The application for leave to appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

1                     On 14 September 2007 Middleton J in a comprehensive and closely reasoned judgment dismissed Ms Bahonko’s application for leave to file out of time an application pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1996 (Cth) (Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449).  The judgment traces a complicated history explaining the origins of Ms Bahonko’s claim.  Reference should be made directly to it for an understanding of the matters which Ms Bahonko wished to pursue and the manner in which her allegations were advanced.

2                     In addition to dismissing the application for leave to file out of time Middleton J indicated that he would, in any event, have summarily dismissed the proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) as having no reasonable prospects of success and as an abuse of process because which was doomed to fail.  His Honour also dismissed a miscellany of other complaints of various kinds by Ms Bahonko as being without substance.

3                     On 20 September 2007 Ms Bahonko filed a document attempting to institute an appeal from the judgment of Middleton J.  Later Ms Bahonko filed, on 22 October 2007, a document entitled ‘Further Amended Notice of Appeal’.  We do not propose to set out its contents or attempt any summary of them.  The document is ten pages long and in a most unsatisfactory form.  To say that it scandalises not only judges of this Court but a range of other persons is a moderate description of its general character.

4                     The judgment of Middleton J is, in accordance with well established authority, to be regarded as an interlocutory judgment.  Accordingly leave to appeal was required before an appeal could be brought (s 24(1A) of the Act).  Leave to appeal against an interlocutory judgment must be granted by a single judge or a Full Court (s 25(2)(a) of the Act).  No leave to appeal was obtained by Ms Bahonko before she filed her purported notices of appeal or at any time thereafter.

5                     On 18 October 2007 the first respondent filed a notice of motion seeking that the purported appeal be dismissed as incompetent.  A similar notice of motion was filed by the second respondent on 21 November 2007.  When the hearing before us commenced on 29 February 2008 these matters required attention.  At first Ms Bahonko steadfastly refused to make any application for leave to appeal, even at that late stage, insisting that she had a right of appeal.  She seemed unwilling to direct her attention to the matters we indicated she needed to deal with.  At a point when it seemed clear that Ms Bahonko was completely steadfast in her declared position that she would not, despite repeated opportunities to do so, make any application for leave to appeal, the Court adjourned for a short while to consider what course might then be taken.  When we resumed Ms Bahonko informed us that she wished to have leave to appeal, if that was necessary.  In the circumstances we treated that indication as an oral application for leave to appeal and as one which required consideration.

6                     We then invited Ms Bahonko to make submissions in support of the grant of leave.  We permitted the series of oral statements which she then proceeded to make from the Bar table to continue for some little time until, finally, convinced that there was no prospect that Ms Bahonko would direct her attention to the matters which required consideration we indicated that we were not prepared to hear her any further.  We did not feel it necessary to call upon the respondents to add to written submissions which had been filed in relation to these issues.

7                     We then made orders dismissing the application for leave to appeal and any appeal purportedly filed and awarded costs in favour of the respondents.  This judgment provides reasons for those orders.

8                     In support of her appeal Ms Bahonko had, one week before the hearing, filed 27 pages of written submissions and a lengthy affidavit dealing with events in 2004 which made a series of very serious and immoderate allegations against two police officers.  We did not allow her to read or rely upon the affidavit in the proceedings.  We ruled also that the written submissions contained such scandalous material that, pursuant to s 50 of the Act they were not to be available for inspection by any member of the public unless the leave of a judge was first obtained.  Nothing in the written material which Ms Bahonko filed, or anything said by her orally, provided any basis to think that there would be any utility in granting leave to appeal. 

9                     We should make it clear that there is no substance in any suggestion that his Honour misunderstood the nature of the matters for his decision.  Nothing was put to raise any doubt about his Honour’s conclusions that the matters advanced by Ms Bahonko in the proceedings below were devoid of evidentiary substance.  His Honour was correct to regard the proceedings as vexing.  There was clearly no substance in the challenges which Ms Bahonko wished to bring if leave to appeal were granted.  As a result there was no utility in the grant of leave to appeal.

10                  The liberty which the Court frequently extends to unrepresented litigants was systematically abused by Ms Bahonko in the present case.  She seems unwilling to respect reasonable standards of conduct in the material which she appears to feel she may place before the Court as a matter of right.  The processes of the Court and the Court itself are brought into disrespect if unreasonable relaxation of ordinary standards is extended to litigants in person simply for the reason that they are without legal assistance.  There is no basis to think that the rights of any litigant in person are infringed or diminished by the steady insistence that proceedings in this Court are not be used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all.  Ms Bahonko, by her conduct, breached the necessary standards in a systematic and apparently intentional way.

11                  The findings we have made have the consequence that the respondents were again put to the burden of defending themselves against the use by Ms Bahonko of the processes of this Court when her attempted use of those processes, and the way in which she chose to invoke and pursue them, were without any merit.  So far as an order for costs might give the respondents some measure of protection they were clearly entitled to have it.

Associate:

Dated:         7 March 2008