FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 1556

PRACTICE AND PROCEDURE – where appeal pending in relation to substantive orders and costs orders of a single judge – application for access to transcript for purposes of appeal – leave limited to viva voce evidence to facilitate preparation of the appeal by all parties – application for leave to stay costs orders pending determination of appeal – application for removal of respondents’ legal representatives from participation in appeal – application for leave to initiate contempt proceedings where leave previously denied – where nature of requests scandalous and vexatious

Federal Court Rules O 46 r 7A and O 52 and r 17(1)

Bahonko v Sterjov [2007] FCA 867 referred to

Bahonko v Sterjov [2007] FCA 1341 referred to

Bahonko v Sterjov [2007] FCA 1377 referred to

Bahonko v Sterjov & Ors [2007] FCA 1555 referred to

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 applied

Paramasivam v Randwick City Council [2005] FCA 369 referred to

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

VID 743 OF 2007

GORDON J

8 OCTOBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appellant be provided, at the expense of the Court, with a copy of the transcript in an electronic form of the evidence of the following persons before Jessup J in VID 114/2006:

(1)               the appellant;

(2)               Lisa McEwan;

(3)               Kosta Sterjov;

(4)               Esther Keji Matthew;

(5)               Snezana Sterjova; and

(6)               Wieslawa Kurasik.

2.                  The notice of motion dated 20 September 2007 is otherwise dismissed.

3.                  The appellant is to pay the respondents’ costs of and incidental to the Notice of Motion filed on 20 September 2007.

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

REASONS FOR JUDGMENT

APPLICATION

1                                             In this matter, the appellant (“Ms Bahonko”) has applied by notice of motion dated 20 September 2007 (“the Notice of Motion”) seeking the following relief:

“1.       Transcripts of proceedings in the matters VID 114/06 and VID 756/06 be made available to the appellant

            (a)        in an electronic form; or

            (b)        in a printed form.

2.         Orders given by Justice Jessup on 31 August to stay until the appeal is fully determined.

3.         Mr M McKenney and Mr Felix Vitiello to step down from a legal representation in the appeal matter VID 743/07.

4.         Appellant’s claims of Contempt of the Court by Mr McKenney, Mr Vitiello, the Defendants and their witness Ms Esther Keji Matthew to be determined prior to the appeal hearing & the Contempt of the Court proceeding is deemed to commenced.”

2                                             For the reasons below, subject to one qualification, I would dismiss the Notice of Motion.

BACKGROUND

Substantive Proceedings

3                                             The history of the substantive proceedings which give rise to this Notice of Motion are set out in the reasons for decision I delivered earlier today in VID 822 of 2007:  see Bahonko v Sterjov & Ors [2007] FCA 1555 at [3] to [7].  I adopt the same defined terms in these reasons.

ANALYSIS

Application for leave to access transcripts:  para 1 of the Notice of Motion

4                                             Ms Bahonko seeks an order that the Court make available to her a transcript in an electronic form or in a printed form of the substantive proceedings before Jessup J. 

5                                             Having regard to the reasons for decision of Jessup J and the grounds of appeal, it appears to me to be inevitable that the Appeal Books before the Full Court of the Federal Court will need to include a copy of the transcript of the evidence given by Ms Bahonko and the respondents’ witnesses.  It would therefore facilitate the conduct of the Appeal if all participants in the Appeal were provided with a copy of the transcript of the evidence before Jessup J.  Accordingly, in relation to the transcript of the substantive proceedings, the request for access to the transcript is granted but only in respect of evidence given viva voce before Jessup J.  That transcript will be provided by the Court in an electronic form.

Application for leave to stay the Costs Orders pending the determination of the Appeal:  para 2 of the Notice of Motion

6                                             Ms Bahonko applies for a stay of the Costs Orders. 

7                                             Order 52 r 17(1) of the Federal Court Rules provides that:

An appeal to the Court shall not –

(a)        operate as a stay of execution or of proceedings under the judgment appealed from; or

(b)        invalidate any intermediate act or proceeding;

except so far as the Court or a Judge or the court below may direct.

8                                             Goldberg J considered the question of a stay of the Substantive Orders in Bahonko v Sterjov [2007] FCA 1377.  His Honour summarised the principles in the following terms at [6]:

“The general principle which is applied in the Court is that an appeal does not operate as a stay unless the Court or a Judge otherwise orders.  Whether or not such a stay should be granted depends upon whether the Court or a Judge thinks in all the circumstances that the matter is an appropriate case for the grant of a stay:  See, for example, Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498.”

9                                             The primary matter relied upon by Ms Bahonko in support of a stay was that “there were and are not any costs due against me.”  That is an issue for the Appeal of the Substantive Orders. 

10                                          The additional matters referred to by Ms Bahonko in her affidavit sworn on 20 September 2007 and in her oral submissions are properly described as scandalous and vexatious.  They include allegations of criminal conduct and conduct constituting abuse of office.  Those allegations are unsupported and insupportable.  None of the matters relied upon by Ms Bahonko provides any basis for the grant of stay of the Costs Orders.

11                                          Paragraph 2 of the Notice of Motion is dismissed.

Application for removal of legal representatives:  para 3 of the Notice of Motion

12                                          Ms Bahonko seeks an order that the respondents’ counsel and solicitors “step down from a legal representation in the appeal matter VID 743/07”.  Ms Bahonko seeks to rely upon her affidavit of 20 September 2007.  In that affidavit and in the course of her oral submissions, Ms Bahonko made allegations which are properly described as scandalous.  There is no foundation established for the allegations against the respondents’ advisers.  Paragraph 3 of the Notice of Motion is dismissed.

Application in relation to hearing of contempt charges:  para 4 of the Notice of Motion

13                                          This application is misconceived.  It is without foundation. 

14                                          On 24 May 2007, following the closure of the respondents’ evidentiary case on the two applications (see [2007] FCA 1555 at [4]) before Jessup J, Ms Bahonko attempted to make a range of oral applications including an application to file a statement of charge for contempt of court against the respondent and the respondents’ legal representatives, Mr McKenney and Mr Vitiello, and sought to challenge the competency of two of the witnesses called on behalf of the respondents, the fourth respondent and Ms Esther Matthews.  Jessup J did not grant leave to file these applications: see [8] at paras (2) and (4) and [9] of Bahonko v Sterjov [2007] FCA 867.

15                                          On 30 May 2007, Ms Bahonko sought leave to appeal Jessup J’s decision not to grant leave to file the statement of charge for contempt of Court.  On 9 June 2007, Finkelstein J made a direction to a Registrar under O 46 r 7A of the Federal Court Rules that the notice of motion dated 30 May 2007 be refused for filing.

16                                          A direction under O 46 r 7A is not a judgment able to be subjected to an appeal by Ms Bahonko:  Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [19] per Lee, Whitlam and Jacobson JJ.  See also Paramasivam v Randwick City Council [2005] FCA 369 at [40] and [41] per Sackville J.  That application is dismissed. 

17                                          In relation to other purported contempt claims made by Ms Bahonko about the evidence given by witnesses during the course of the trial before Jessup J, there is no basis for those allegations 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 Orders which are the subject of the Appeal.  The appeal process is the procedure to be adopted by Ms Bahonko if she seeks to challenge the findings made by Jessup J.

18                                          There is no basis for Ms Bahonko’s purported contempt claims to be heard and determined.

Conclusion

19                                          Ms Bahonko is to be provided with a copy of the transcript of evidence before Jessup J in VID 114/2006 in an electronic form at the expense of the Court.

20                                          The notice of motion dated 20 September 2007 is otherwise dismissed.  Except for the issue of access to part of the transcript before Jessup J, Ms Bahonko was wholly unsuccessful.  Moreover, her submissions and her affidavit were properly described as scandalous and vexatious.  Ms Bahonko is to pay the respondents’ costs of and incidental to the Notice of Motion filed on 20 September 2007. 

Associate:

Dated:         9 October 2007