Case: Bahonko v Sterjov [2007] FCA 1377
Outcome: referred to
On 27 August 2007 Goldberg J dismissed the application to stay the orders made by Jessup J on 15 August 2007: Bahonko v Sterjov [2007] FCA 1377. Justice Goldberg decided that there was no need for a stay of the first three orders made by Jessup J. Orders 1 and 3 would be considered on appeal. Order 2 was in the applicant's favour. He considered the applicant's argument that order 4 be stayed, but rejected a stay because the order simply required the parties to file and serve submissions on costs. His Honour was not prepared to interfere with the trial process. He said that if an adverse costs order was made against the applicant she could appeal and, if it were appropriate, seek an order for a stay. In his reasons, Goldberg J rejected the applicant's very serious complaints about the trial judge and the respondents' legal advisers, which he described as being without basis and unsupported by the evidence. 19 The first notice of motion challenged Jessup J's orders for costs and sought other relief including access to transcript. The second notice of motion purported to be an application for leave to appeal from Goldberg J's decision of 27 August 2007 refusing to stay Jessup J's orders of 15 August 2007 and consequential relief. 20 The amended notice of motion for hearing before me seeks the following orders: 1. Appellant is given leave to appeal from the orders NO: 2 and 3 given by Justice Gordon on 8 October 2007 and a part of the order 1, which part is not granting appellant an access to Transcripts of proceedings in VID 114/06 &amp; VID 756/06 in full. (a) All Transcripts be provided in full. 2. The Notice of Appeal from Justice Gordon's orders NO: 2 and 3 and part of the order 1 to be consolidated with the existing Notice of appeal in the matter No: VID 743/07. 3. Appellant has leave to amend her Notice of Appeal in VID 743/07 to include appeal from Justice Gordon's orders No: 2 and 3 and part of the order 1 of 8 October 2007. 4. Transcripts of proceedings before Justice Gordon on 8 October 2007 be made available to the appellant &amp; be part of the leave to appeal hearing. 5. The matter VID 822/07 is an integral part of VID 743/07 as Justice Gordon shared decision in those matters. 6. Appellant is given leave to appeal from judgments &amp; whole of the orders of Justice Gordon given on 8 October 2007 in VID 822/07 and paragraphs 2,3 &amp; 4 applies to this leave &amp; those orders are treated as if given in VID 743/07. 7. Defamatory of the appellant parts of the reasons for judgments given by Justice Gordon on 08/10/07 are removed, replaced with corrective statements and apology statements and damages are paid to the appellant by the Federal Court of Australia. 8. Mr McKenney and Mr F Vitiello are charged with the contempt of the court and wilful defamation of the appellant in the principal matter VID 114/06 and the consequential matters VID 743/07 and VID 822/07 and pay damages to the appellant &amp; are restrain from participation in any of her matters. 9. The Federal Court of Australia &amp; the Commonwealth of Australia are added as parties to proceedings: VID 949/07 and the principal Appeal proceedings VID 743/07. 10. Justice Gordon is suspended from her office having engaged in a wilful and criminal defamation of the appellant in VID 828/07. 21 At the hearing the applicant sought to and was given leave to amend paragraph 9 by deleting reference to the Federal Court of Australia and by deleting paragraph 10 and substituting: 10. Justice Gordon is directed to review her reasons for judgment in proceedings VID 822/07. Those two amendments were made during her address to the Court on 1 November 2007. 24 Paragraph 1 of the notice of motion before me seeks leave to appeal from Gordon J's orders on the first notice of motion. Paragraphs 2 to 5 seek consequential orders on the assumption that the leave sought in paragraph 1 be granted. Paragraph 6 seeks leave to appeal from Gordon J's orders dismissing the applicant's application by a second notice of motion for leave to appeal from Goldberg J's refusal to grant a stay of Jessup J's orders. Paragraph 8 is a similar application to that for which Jessup J refused leave during the trial and dismissed by Gordon J in the first notice of motion. Paragraphs 7 and 10 (even as amended) are scandalous. Paragraph 9 is misconceived. I will deal with each of these paragraphs in turn below. 25 The applicant has raised three separate issues within paragraph 1 of the notice of motion before me. 26 I will first deal with that part of paragraph 1 which complains of Gordon J's refusal to order that the applicant have access to the whole of the transcript at trial. 27 I should note that, before Gordon J, the applicant sought transcript from proceedings VID 114/06 and VID 756/06 which were the proceedings before Jessup J. As noted above, however, Jessup J consolidated those two proceedings, such that the applicant's complaints were all heard as matter VID 114/06. It was under that proceeding that Jessup J made orders in relation to both the substantive proceedings and costs. 28 Justice Gordon gave the applicant access to an electronic form of the transcript of the witnesses at the trial. It is not clear what other transcript is sought. The applicant mentions in her affidavit that she does not have access to the transcript before Goldberg J and Gordon J but that transcript, if it exists, is not evidence and could not be remotely relevant on the appeal or, indeed, on this application. I will assume that the applicant is seeking that part of the transcript before Jessup J not subject to the order made by Gordon J. I will assume that the applicant could appeal from Gordon J's refusal to order that the further transcript be made available, although I doubt that the order is appealable. 29 However, even upon those assumptions the order sought should not be made. It has not been demonstrated that the transcript of what was said during the trial and was not evidence is relevant. Even if it were relevant, Gordon J's order does not prevent the applicant accessing the transcript. The applicant can, if she orders the transcript and pays the fee, have a copy of the transcript. Justice Gordon's order simply means that the Court will not be put to the cost of providing to the applicant a transcript of that part of the proceeding which does not contain evidence and has not been shown to be relevant. Insofar as leave is sought to appeal from the refusal of Gordon J to order that a transcript be made available to the applicant, it is refused. 30 In paragraph 1 of the current notice of motion, the applicant also seeks leave to appeal from order 2 made by Gordon J on 8 October 2007 on the first notice of motion. 31 The application before Gordon J sought the stay of the costs order made by Jessup J on 31 August 2007 until the appeal was determined. Order 2 made by Gordon J on the first notice of motion dismissed the other orders sought in the notice of motion which had the effect that the applicant's application for a stay of Jessup J's costs order was dismissed. It also had the effect of dismissing the application in the notice of motion that the respondents "step down" from representing the respondents. Leave to appeal is sought from that order. 35 Justice Gordon was asked to consider the question of a stay in relation to costs in circumstances where Goldberg J had considered and refused a stay of the substantive orders made by Jessup J. Justice Goldberg was not prepared to interfere with the trial process and stay Jessup J's order which required the parties to file and serve submissions on costs. 36 When the matter came before Gordon J the applicant had already amended her notice of appeal to add grounds of appeal against the costs orders made by Jessup J on 31 August 2006. 37 Before Gordon J the applicant asserted that Jessup J's orders contravened the WRA and that "[t]here were and are not any costs due against me." She claimed in her affidavit that the "manner of the orders given by Justice Jessup on 31 August 2007 further demonstrate that those orders are unreasonable &amp; if remain would constitute abuse of the process and continuation of a fraud." She also alleged that his reasons constituted "multiple wilful misrepresentations, defamations and vilification of me ...". She criticised other aspects of Jessup J's reasons. Putting aside the inappropriate language, the reasons advanced may have been relevant as to whether the order for costs should have remained or were to be reviewed on appeal. However, Gordon J was not hearing an appeal but an interlocutory application for a stay. No ground was advanced why it was appropriate that the orders be stayed. 38 There was no evidence before Gordon J that the taxation of the respondents' costs was imminent or was likely to occur prior to the hearing of the appeal in relation to the substantive matter. That of itself would have been sufficient reason for Gordon J to dismiss the application because no need was demonstrated for the order sought. Justice Gordon, however, dismissed the application because the primary matter of substance advanced in support of the application was that "[t]here were and are not any costs due against me." Justice Gordon said that was an issue for the appeal. Her Honour's decision was undoubtedly correct. The matters raised by the applicant might be relevant to the appeal before the Full Court but were not relevant to the stay application. 39 Justice Gordon described the additional matters relied on by the applicant as "scandalous and vexatious", being allegations of criminal conduct and conduct constituting abuse of office which were "unsupported and insupportable". I agree with those observations. 40 There is a further reason to refuse leave. If leave were granted the appeal against Gordon J's refusal to grant a stay would be, assuming the other orders sought by the applicant were granted, heard at the same time as the appeal against the substantive orders and the appeal against costs. The purpose of a stay prior to the hearing of the appeal would not be achieved. It follows that an order granting leave to appeal against Gordon J's refusal to grant a stay would be futile in those circumstances. 41 If the Full Court is of the opinion that the appeal against either the substantive orders or the costs orders is likely to succeed it can, on the applicant's application or its own motion, make an order for a stay. 42 Order 2 of her Honour's order on this notice of motion also had the effect of dismissing the applicant's application that the respondents' legal representatives step down. Her Honour dismissed that application on the ground that the allegations made in support of the notice of motion were without foundation and scandalous. I have studied the allegations contained in the applicant's affidavit sworn on 20 September 2007 which was the affidavit relied upon by the applicant before Gordon J and the affidavit sworn on 30 October 2007 in support of this notice of motion before me. I agree with her Honour in both respects. The allegations are without foundation and scandalous. I make these comments notwithstanding the vitriolic comments made by the applicant in respect of Gordon J's comments to the same effect. 43 Leave to appeal must be refused because her Honour's decision is not attended by any doubt and, moreover, no injustice would be suffered by the applicant if leave were refused. 44 In Order 3 of the notice of motion before her, Gordon J ordered the applicant to pay the respondents' costs. Such an order was inevitable having regard to the order made refusing the stay. Insofar as this notice of motion seeks leave to appeal from her Honour's order for costs, it should be dismissed. 45 Paragraphs 2, 3, 4 and 5 of the notice of motion would only need to be considered if, contrary to my opinion, leave ought to be granted from Gordon J's decision in relation to orders 2 and 3 and part of order 1 of the orders made by Gordon J on 8 October 2007. The applications made under these paragraphs must also be dismissed. 46 The order sought in paragraph 6 of the notice of motion is somewhat different. That application seeks leave to appeal from the decision of Gordon J in VID 822/2007 also given on 8 October 2007, which related to a second notice of motion before her Honour. The orders which were sought in that proceeding are set out at [16] above. 47 Her Honour dismissed that notice of motion. Because her Honour refused leave to appeal from the orders of Goldberg J of 27 August 2007, she was also bound to dismiss paragraphs 2, 3 and 4 of the notice of motion which sought orders consequential upon the applicant obtaining leave. 48 The applicant now seeks leave to appeal from Gordon J's refusal to grant leave to appeal from Goldberg J's order refusing a stay of the order in the substantive proceedings made by Jessup J on 15 August 2007. 49 For reasons which follow, the application is misconceived. But not only is the application misconceived it is pointless and a waste of the Court's resources and a burden upon the respondents. 50 Justice Goldberg refused a stay of Jessup J's orders of 15 August 2007 for the reasons recited in [10] of these reasons. He was undoubtedly right. There was no practical utility in granting a stay order when orders 1 and 3 dismissed the applicant's proceeding and order 2 was in the applicant's favour. There was nothing in those orders to stay. He refused to order a stay of order 4 made by Jessup J. That order is no longer relevant as further orders have been made. Those further orders have already been addressed in respect of paragraph 1 of this notice of motion. 52 But even if there were a need for a stay order and even if I had power to grant leave to appeal from Gordon J's refusal to grant leave, which I do not, the order sought would be pointless. Like the application in paragraph 1, if leave were granted the appeal against Goldberg J's refusal to grant a stay would be heard at the same time as the appeal against the substantive orders. If that were the case, there would be no stay pending the appeal. It follows that the application is pointless for that further reason. 53 However, in any event, the application for leave to appeal from Gordon J's order refusing leave to appeal from Goldberg J is misconceived. 54 Justice Gordon's refusal to grant leave to appeal from Goldberg J was an exercise by her Honour of the Court's appellate jurisdiction pursuant to s 24(1A) and s 25(2)(a) of the Federal Court of Australia Act 1976 (Cth). Section 24(1) of the Act gives the Court jurisdiction to hear and determine appeals from judgments of the Court constituted by a single judge: s 24(1)(a). However, s 24(1A) requires that where the judgment is an interlocutory judgment the appellant first obtain leave to appeal from the Court or a judge. Section 25(2)(a) provides that an application for leave to appeal may be heard and determined by a single judge or the Full Court. Order 52 rule 2AA of the Rules provides that an application under s 25(2) should be heard by a single judge unless one of the events in the rule occurs. 56 This application for leave to appeal must therefore be dismissed as incompetent. Because no appeal lies from Gordon J's refusal to grant leave to appeal, it follows that no appeal lies from her Honour's refusal to make the second and third orders in the second notice of motion before her Honour which, as I have said, were consequential upon the applicant being granted leave. 57 The fourth order sought in the notice of motion before Gordon J, insofar as it sought to impugn Finkelstein J's direction, was again, with respect, misconceived. Justice Finkelstein made a direction pursuant to O 46 r 7A(2)(b) of the Rules that the Registrar refuse for filing the notice of motion seeking leave to appeal from Jessup J's decision not to grant leave to file the statement of charge for contempt. 75 The applicant has filed applications before Finkelstein J, Goldberg J, Gordon J and now me in which she has successively made complaints about the conduct of judges of this Court and of the legal practitioners representing the respondents. Latitude is given to unrepresented parties because sometimes they may have difficulty in understanding the Court's processes. Sometimes unrepresented parties become very involved in the processes and express themselves infelicitously. However, there comes a time when the Court must, for the purpose of maintaining the dignity of the Court and the public's confidence in the Court, say enough is enough. That stage has been reached. The applicant must understand that, if she continues to make unsubstantiated allegations of the kind in the application, affidavits and draft notices of appeal which scandalise the Court, action may need to be taken for the protection of the Court. I have considered whether it might be appropriate to take action in this proceeding. However, the applicant has not previously been warned that her conduct may be considered to be a contempt of the Court. I have therefore determined that on this application she should be given this warning. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 14 November 2007 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr M McKenney Solicitor for the Respondent: Mr F A Vitiello Date of Hearing: 1 November 2007 Date of Judgment: 14 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1717.html