FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 867  

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

VID114 OF 2006

JESSUP J

24 MAY 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  If the applicant is in a position to call, and proposes to call, Ms A Brown to give evidence in this proceeding, she file and serve an affidavit stating that proposal, and stating the substance of the evidence which it is intended Ms Brown will give, such affidavit to be filed and served on or before 6 June 2007.

2.                  Paragraphs 6, 7 and 8 of the orders made by the court on 27 April 2007 be vacated.

3.                  The respondents file and serve their final submissions in writing on or before 27 June 2007.

4.                  The applicant file and serve her final submissions in writing on or before 6 July 2007.

5.                  Subject to any contrary order made by the court, the proceeding be listed for final submissions at 10.15 am on 11 July 2007 with each party being limited to one hour in oral submissions.

6.                  Costs to be reserved.

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

REASONS FOR JUDGMENT

1                     Subject only to the possibility of further evidence being called today, the trial of this proceeding has concluded.  On 27 April 2007, I gave the applicant an opportunity to contact a person whose evidence she submitted was important to the case and who she anticipated would have been called on behalf of the respondents.  That person, a former employee of the fourth respondent, Ms Aileen Brown, had not been called by the respondent and the applicant desired to have the opportunity to make an attempt to contact her for the purpose of bringing her before the court.  I required the applicant to file and serve a brief summary of the evidence which she proposed to lead from Ms Brown, and she has done so.  However, the applicant did not call Ms Brown today for the reason, as she explained to me, that she did not know the whereabouts of Ms Brown and had no way of contacting her. 

2                     That would have been the end of the matter so far as Ms Brown is concerned, were it not for an affidavit sworn yesterday by the first respondent deposing to attempts which he had made to contact Ms Brown at the address shown on her Group Certificate.  The first respondent said that he himself went to that address on 12 May 2007 and was told by a person who identified herself as Danielle, or a similar name, that she did not know Aileen Brown, that Aileen Brown did not live at that address, that she did not know the whereabouts of Aileen Brown, that she had no means of contacting Aileen Brown and that she did not know Aileen Brown’s telephone number.  The first respondent also deposed that he telephoned the number which he had on his records for Aileen Brown, but discovered that the number now relates to a business known as Endeavour Timber.  He concluded his affidavit by stating that he had no means known to him of contacting Aileen Brown.

3                     The first respondent was cross-examined by the applicant on his affidavit, but substantially the state of the evidence remains as I have indicated.  Counsel for the respondents accepted that, in the light of the reading of that affidavit, it would be reasonable to allow the applicant a further opportunity to make such use as she is able of the information which she now has a result of that affidavit to renew her attempts to contact Aileen Brown and to bring her before the court for the purpose of giving evidence.  In the circumstances, I shall make adjustments to the timetable previously set out in directions which I gave on 27 April 2007, such as would permit the applicant an opportunity to follow up that matter.

4                     The applicant proposed that she should have four weeks for that purpose, but, having heard her in relation to her circumstances and other litigation in which she is involved, I am satisfied that the time within which she should, in effect, give an indication by affidavit of whether she proposes to call Ms Brown should be extended to 6 June 2007, in accordance with directions which I shall give at the end of these reasons.  I do not propose, at this stage, further to list this matter for hearing before the final date for summary submissions referred to in those directions.  However, I leave open the prospect that, depending upon the affidavit material filed by the applicant, I will list the matter for the purpose of receiving the evidence of Ms Brown.  At this stage, the only evidence which I have is that of the first respondent and it seems that the prospect that the applicant would be able to contact Ms Brown, as a result of having the information referred to in his affidavit, is remote and not such as to justify a listing of the matter for the purpose of receiving her evidence in the absence of an affidavit from the applicant. 

5                     The second of the two purposes for which the proceeding was listed for hearing today was to hear such evidence as the applicant may have foreshadowed by affidavit and which demonstrated the manifest falsity of any of the evidence previously given in this proceeding.  The applicant filed an affidavit affirmed on 15 May 2007 which was lengthy, and I am bound to say tendentious in many respects.  When I gave the applicant leave to file such an affidavit, I understood from what she then told me that she had available to her direct and admissible evidence which would demonstrate the manifest falsity of evidence previously given in this proceeding.  Even after the close of evidence in a case, it occasionally happens that some new evidence comes to the attention of one of the parties which clearly demonstrates that evidence given in the proceeding was false.   That such later discovered evidence should be admitted is generally in the interests of the due administration of justice.  However, the facility to ask the Court to consider further evidence after the evidence in the case has otherwise closed clearly should not be used simply as an opportunity to re-agitate matters of difference which are already clearly disclosed on the record or to seek further to contest evidence previously given upon grounds, in ways, or on the basis of material, which were generally available at the time of the trial. 

6                     The applicant’s affidavit of 15 May 2007 does not disclose any manifest falsity in any of the evidence previously given, although, in saying that, I do not make a finding about the truth or otherwise of that evidence.  I am conscious that I have yet to consider this case and have yet to hear the parties’ final submissions.  I have heard the applicant this morning in support of the proposition that her affidavit ought to be read, but I do not consider that it fulfils the conditions to which I referred in my orders given on 27 April 2007.  I do not propose to deal further with the subject matter of that affidavit because, in many respects, it deals with things which are controversial in the proceeding and I have yet to hear the parties as to the findings which I should make either about those matters or about matters generally in the trial.  All I say at this stage is that I do not regard anything in that affidavit as directly, and in an admissible way, demonstrating the manifest falsity of evidence previously given in the case.  I therefore refuse the applicant leave to reopen her evidentiary case for that purpose. 

7                     The applicant took the opportunity of the court sitting today to apply for leave to deal with matters which were not within the limited purposes for which the court sat today as set out in my orders of 27 April 2007.  I heard her fully upon that application for leave, and I read also, without objection, Exhibit PER-1 to her affidavit affirmed on 15 May 2007, which contained a proposed Notice of Motion which she seeks to have the court issue, and which she seeks to bring before the court for hearing at some convenient time before the conclusion of this proceeding.

8                     As she explained to me today, there are some seven matters with which she wishes the court to deal, either now or before the conclusion of the proceeding.  They are as follows:

(1)    The applicant desires to file a Further Amended Statement of Claim.  She has not handed up to me a copy of that Statement of Claim, but says that she has it with her in court on a computer disk.  I asked her to indicate to me what were the new or amended matters that she would seek to introduce by that proposed Further Amended Statement of Claim.  She said that there were two things which she wished to do.  First, she wished to make claims said to be based upon the evidence already received in the trial of what she described as perjury and lying on behalf of the witnesses in the case. In part, I take into account the applicant’s affidavit of 15 May 2007 which, as I have said, does not disclose any manifest falsity; but more importantly, I think it would be quite inappropriate for a Statement of Claim to be amended to include charges of perjury and lying directly against witnesses who have given evidence in the case to which the Statement of Claim refers.  It would be quite inappropriate for a judge hearing the trial itself and who has yet to make findings on evidence to consider charges of that kind.  The other matter to which the applicant referred or seeks to refer, in her proposed Further Amended Statement of Claim, is that she wishes to make allegations under cover of which she would introduce new evidence not previously led in the trial.  That evidence would relate to what she said was the respondents’ intimidation of her, to their emotional assaults upon her, and to damage which she says they caused to her house by way it seems, of throwing rocks and other objects onto or against the house.  Whether or not the applicant has any cause of action against the respondents in these regards is something upon which I make no comment.  However, I do not consider that there is a sufficient nexus between those matters and the applicant’s claims in the case itself which would justify an amendment of the Statement of Claim.  That is, of course, quite apart from the applicant’s allegations of contempt to which I shall come in a moment. 

(2)   The applicant desires to challenge the competency of two of the witnesses that were called on behalf of the respondents, namely, the third respondent, Ms McEwan, and Ms Esther Matthew. She seeks to advance a challenge to their evidence on the basis that when they gave evidence they were dependent upon the first, second and fourth respondents and were coerced into giving the evidence which they did.  These witnesses were both cross-examined by the applicant.  She had the opportunity – and to an extent she availed herself of that opportunity – to put to them that they had been influenced in the evidence which they gave, in the ways to which she now refers.  The credibility of these witnesses and the reliability of their evidence is a matter which I will need to consider in the course of dealing with this case.  The applicant has not, in her affidavit of 15 May 2007, advanced any basis upon which I should accept an accusation of the kind which she now makes, and I am not disposed to regard those accusations as a legitimate basis for giving her leave to extend the parameters of today’s hearing beyond those originally established.

(3)   The applicant proposes that the two witnesses to whom I have referred, namely the third respondent and Ms Matthew, should undergo an “examination” due to what she describes as their mental health problems.  It is sufficient if I say that there is nothing which would suggest that they do have any such problems, and the suggestion that the court should facilitate a psychiatric examination of them is quite unconventional and is not such as I am prepared to entertain. 

(4)   The applicant desires to move a motion for contempt of court against all respondents and their legal representatives.  That motion, it seems, is based upon an allegation that they threatened and intimidated her, both as a party to the proceeding and as a witness.  Her allegations in this regard go beyond the respondents themselves and extend to the solicitor and barrister by whom they have been represented.  The applicant says that she has prepared, although she did not hand up, a Statement of Charge in 13 paragraphs.  These are not matters which, sitting as the trial judge in a case which is yet to conclude, I consider that I should deal with.  I do not want to say anything further about the applicant’s rights or about the position of the respondents.  If this matter were introduced into the trial, and if I were required to preside over the hearing of such a motion, I consider that it would put me in an invidious position, and would run the real risk of compromising my capacity to hear and determine this proceeding in a fair way. 

(5)   The applicant says that she desires to subpoena documents from the Victoria Police.  I understand that this relates to what she says is the criminal damage which was done to her house in recent weeks.  It will be apparent from what I have said in relation to the applicant’s proposed amendments to the Statement of Claim that I do not think it would be appropriate to introduce those matters into this trial, and it necessarily follows that I do not think it would be appropriate to delay the further conduct of the proceeding for such subpoenas to be issued.

(6)   The applicant said that she wanted this case to be reclassified as a criminal case because of offences committed, as she put it, in the face of the law, that is to say, offences committed during the course of the trial.  In part, I understand those offences were constituted by what the applicant describes as perjury and lying, but there may be other things to which she would wish to refer.  I am unaware of any basis upon which I could, to use her expression, reclassify this proceeding as a criminal one and I think that the suggestion that I should consider such a procedure is quite without substance.

(7)   The applicant desires to have the court issue, and to hear before the conclusion of the proceeding, a Notice of Motion in the following terms.  It will be noticed when I refer to the terms of the proposed notice that the first paragraph is numbered 5.  That is because, in the form in which it was handed up to me, the notice was engrossed as a proposed amendment to a notice which previously came before the court and which had four paragraphs only.

5.         1st, 2cond, 3rd Respondent, their lawyer Mr Felix A. Vitiello, their barrister, Mr M McKenney, and their witness, Miss Keji Esther Matthew are guilty of Contempt of the Court. 

6.         Mr Kosta Sterjov, Mrs Snezana Sterjov, Miss Lisa McEwan, Miss Keji Esther Matthew are guilty of wilful and corrupt perjuries.  

7.         Mr Kosta Sterjov, Mrs Snezana Sterjova, Miss Lisa McEwan, Miss Keji Esther Matthew, Mr F.A. Vitiello and Mr McKenney are given one-year of conditional suspended imprisonment sentence. 

8.         Mrs Wieslawa Kurasik is guilty of providing tendentious opinions in the witness box, failure to depose the whole truth and evidence and of denying facts. 

9.         Mrs Wislawa Kurasik is to pay penalty of $1000.

10.       Ms McEwan & all documents produced by her and E.K. Matthew are lacking in competency as witnesses thus their evidence is not admissible. 

11.       Applicant has leave to further amend her Statement of claims to include criminal charges and damages caused to her by the Defendants OR applicant as leave to file an indictment listing indictable offences committed upon her by the Defendants. 

12.       Applicant has leave to file her further Affidavits by 15/05/07 (or such further time if required). 

13.       The case is deemed to be reopened due to current harassment, intimidation, incitement of violence and threats to the witness-applicant. 

14.       Defendants are to pay the costs of damage caused by them or on their incitement to the applicant on 05/05/07 and 08/05/07 and to pay relocation expenses should the applicant be needed to change her place of residence due to threats to her wellbeing, safety and security of person and property. 

15.       Applicant has leave to subpoena documents from the Victoria Police related to criminal assaults upon her and her property on 28/12/05, 05/05/07 and 08/05/07 which assaults were directly to related to her legal actions against the Defendants and this proceedings. 

16.       Applicant has leave to subpoena the criminal record of all Defendants.

17.       Applicant has leave to Subpoena Mr Felix A. Vitiello the solicitor for the respondents for the purpose of giving evidence on 24/05/07 or on any such date as it will require. 

18.       The Defendants are referred to a committal hearing in relation to recent (and past) indictable offences committed upon the applicant and the Contempt of the Court. 

19.       The case is re-opened. 

20.       The case is reclassified as a criminal case.

21.       a warrant (arrest) to be issued against the Defendants for the Contempt of the Court. 

It will be apparent that each of the matters to which the proposed Notice of Motion refers was mentioned by the applicant in her oral submissions today, and has been covered by the other points set out above.  Although the matters to which the applicant seeks to refer in her proposed Notice of Motion are serious, I do not believe that the proper disposition of this proceeding in its current form would make it either necessary or desirable for such a motion to be heard by me as part of it.  In some respects, I have already given my reasons why I do not propose to deal with the subject of the draft motion.  In other respects, the applicant raises allegations more properly dealt with by a court of criminal jurisdiction.  In all respects, she seeks to raise allegations and accusations against the respondents which it would, in my view, be quite inappropriate for the trial judge hearing the applicant’s proceeding as presently constituted to consider.

9                     For those reasons I refuse the applicant leave to raise any matters today, other than the two matters to which I referred in my directions of 27 April 2007. 

Associate:

Dated:         6 June 2007