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[2011] VSCA 357
Court of Appeal (Vic)
2011-11-15
Davies J, Mandie JA
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application for leave to appeal against order deferring callover of taxation of costs - no basis for leave to appeal demonstrated - application vexatious - leave to appeal refused.
1 Before the court is a summons dated 5 October 2009 by which the applicant seeks leave to appeal against a judgment and order of Davies J, a judge in the trial division of this court, made 21 September 2009. On 28 May 2010 the application for leave was adjourned to the hearing of the appeal, if any. The applicant had contended that leave was not required.
2 By summons dated 9 November 2011, the applicant sought to adjourn the hearing of her application for leave to appeal. The ground stated in the summons was 'medical grounds'. There was no supporting material. At the commencement of the hearing on 14 November 2011, the applicant sought leave to file an affidavit in support of her application for an adjournment. The affidavit had not been provided to the respondent. Upon reading the affidavit and reviewing the attached exhibits it was apparent that the affidavit was a recitation of a broad range of irrelevant, unsubstantiated and scandalous allegations against the respondent and against others. Leave was refused to file the affidavit on the grounds that it was irrelevant and scandalous.
3 While it is true that the affidavit touched upon the applicant's medical condition, the exhibits were a collection of dated reports and other material about her medical condition and assessments of a very general nature.
4 When leave to file the affidavit was refused, the applicant was given an opportunity to advance argument in support of her application for an adjournment but instead applied that the presiding judge disqualify himself and the applicant immediately became engaged in a tirade of abuse. The court cannot be expected to continue to hear from an abusive party, even when an application may have merit. In the present case, none of the applications, by summons or orally made by the applicant, had any merit. They were all vexatious.
5 Both the adjournment and the disqualification application were refused. When given an opportunity to advance argument in support of her application for leave to appeal, the applicant continued her abusive tirade. She did not advance any submissions in support of her application. The court, being acquainted with her application for leave to appeal and the material in support of it, dismissed the application and indicated that reasons would be given later. The following are those reasons.
6 This application was only one of a series of steps taken by the applicant in the Magistrates Court, the trial division of this court, the Court of Appeal and the High Court to ventilate grievances arising from a judgment entered against her in the Magistrates Court on 3 August 2006 for $1,286.82 for arrears of rates plus interest of $27.15 and costs of $529.40. Some of the consequential litigation history is set out in a judgment of this court on 8 May 2009 in which leave was refused to appeal against interlocutory judgments of two other judges in the trial division.[1]
7 The proceeding before Davies J followed the issue by the respondent of two summonses for the taxation of costs awarded against the applicant by this court when refusing leave to appeal on 8 May 2009; and in respect of other costs orders made by an associate justice on 19 November 2008 and by another trial division judge on 18 December 2008. The summonses for taxation were both dated 7 September 2009. The summonses required the applicant to attend before the Taxing Master at 9.30 am on 22 September 2009.
8 On 15 September 2009, the applicant issued a summons, directed to the respondent in which she sought the following relief:
2.1 Attempts to extort money from appellant by deception
2.2 Frauds
2.3 Corrupt conduct
2.4 Conspiracy to obstruct justice & defeat justice in the appellant's WorkCover crime
2.5 Psychological & mental tortures of the applicant.
2.6 Intimidation, harassment & Incitement of violence against applicant at her place of residence & on the Supreme Court premises & the Magistrate Court premises.
2.7 Fascism.
2.8 Causing willful damages to the appellant property
2.9 Deception & corruption of the judiciary officers & judges in this matter.
2.10 Willful & corrupt perjuries.
2.11 Bestiality & Sadism in relation to the appellant
2.12 Criminal intends to cause suicide of the applicant or/and acute exacerbation of the appellant's Work related injuries: Depression & Post Traumatic Stress Disorder
9 The applicant's summons was listed for hearing before a judge in the trial division at 10.30am on 21 September 2009. The summons was amended, prior to the hearing, by the inclusion of a further claim for relief in the following terms:
10 At the hearing, the trial judge was informed that on the return of the summonses for taxation on the following day there would be a 'call-over' at which a date for a hearing could be fixed.
11 The applicant filed two affidavits in support of her application before the trial judge. In her first affidavit, affirmed 15 September 2009, she stated:
12 In a second handwritten affidavit dated 18 September 2009, handed to the court with exhibits on 21 September 2009, the applicant repeated many of her more general complaints against the respondent including its refusal to waive her rates, damage to her house, the failure of the Council to give value for rates by the provision of services, other florid allegations of wrongdoing and some complaints against judicial officers. The exhibits included the summonses for the taxation of costs, court orders and correspondence in relation to the applicant's dealings with the respondent and police and a notice under s 35 of the Charter of Human Rights and Responsibilities Act.
13 It was common ground before the trial judge that the applicant had applied for special leave to appeal to the High Court from judgments and orders of this court, presumably the order made on 8 May 2009 refusing leave to appeal from the interlocutory judgments and orders of Pagone J and Williams J dated 18 November 2008 and 18 December 2008 respectively. The applicant also informed the trial judge that she was proposing to make further applications to the High Court, consolidating other complaints with her application for special leave to appeal. It was in that context that the respondent proposed, prior to the hearing, that the summonses for the taxation of costs be adjourned by consent to a date after the applications for special leave to appeal to the High Court had been heard and determined. The applicant rejected that proposal.
14 When the application came on for hearing before the trial judge on 21 September 2009, the applicant persisted in her rejection of the respondent's proposal for an adjournment of the summonses. A review of the transcript reveals that the trial judge went to great lengths to allow the applicant an opportunity to explain her reasons for rejecting what apparently appeared to the trial judge as a suitable course to protect her rights. It is difficult to discern just what the applicant wanted the trial judge to do. Two possibilities emerged from the documents filed by the applicant, her submissions and the transcript of the proceeding before the trial judge. One possibility was that the applicant wanted the trial judge to make final orders on her summons, striking out the summonses for taxation of costs, and calling for a grand jury. That possibility is substantially divined from the applicant's summonses dated 15 September 2009, and her contention during submissions that she wanted 'cancellation of the proceeding'.
15 The other possibility was to be found in part in the amendment to her summons dated 18 September 2009, by which she sought an injunction to 'stop proceeding on 22/09/09', and her statement to the court,
So I would be satisfied with obtaining a stay order which is standard procedure when the application to the High Court is pending.
not to take place until a date after a decision of the High Court in application number M56/2009 is handed down.
17 There can be little doubt that the trial judge understood the applicant's application before the court in terms of the second possibility mentioned above. The trial judge did not have power to order a grand jury investigation and, in any event, the material before her did not support the substantive relief sought in the applicant's summons. The affidavit material filed by the applicant was little more than extravagant assertions of wrongdoing by the respondent in its dealings with her. It had little or nothing to do with the validity of the summonses for the taxation of costs. The orders for costs had, after all, been made following an adjudication by the court on the merits of an application by the applicant. Her Honour's reasons were brief and they are set out below.[2]
Ms Bahonko seeks an injunction to stop the call-over, on 22 September 2009, of the taxation of bills of costs in respect of costs orders made against her by Daly AsJ, Williams J and the Court of Appeal. Ms Bahonko also seeks a stay of the orders for costs until the High Court has determined her special leave application from the Court of Appeal decision and pending an application she proposes to make for a grand jury to be convened pursuant to s 354 of the Crimes Act 1958.
Two of the orders for costs were made in applications that Ms Bahonko sought leave to appeal from to the Court of Appeal. The Court of Appeal dismissed those applications and the third order for costs was the order for costs made in that proceeding. I am not satisfied on the material before me that I should grant a stay of the orders for costs nor do I consider that the proposed application under s 354 of the Crimes Act 1958 provides any warrant for a stay.
However, Mr Shirrefs for the respondent informed the Court that the respondent would consent to an adjournment of the call-over to a date after the determination of the special leave application. Ms Bahonko resisted the making of such an order on the basis that her consent to an adjournment would be tantamount to an acknowledgement or an admission on her part that there was merit in the orders for costs made against her and of her liability on the bills of costs that are sought to be taxed. I do not accept that submission. Orders by consent adjourning the call-over would not be taken by the Court as such an admission or acknowledgement on her part.
However it is appropriate that the taxation of the costs not proceed before the High Court has heard Ms Bahonko's application for special leave. Accordingly, I will direct that the call-over not take place until after the High Court has heard Ms Bahonko's application for special leave.
18 The orders made by the trial judge gave the applicant, in effect, what she sought. The taxation of costs would not proceed before the applicant's application for special leave was determined. Thus, the applicant's position was protected and the relief sought in her summons could be pursued by her at a later time. In the absence of consent from the applicant there was no occasion for the adjournment proposed by the respondent.
19 The applicant has not provided any useful grounds of appeal. The notice of appeal dated 5 October 2009 and an amended notice of appeal filed on 20 November 2009 identify as a ground of appeal 'sec. 35 of the Human Rights Charter Vic', and then state what are described as questions of law. It must be said immediately that, as a ground of appeal, the reference to s 35 of the Charter of Human Rights and Responsibilities Act 2006 is obscure. That section requires notice to be given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission. The only copy of such a notice included by the applicant in the appeal papers filed by her is one dated 5 December 2008, which appears to complain about the orders made by Pagone J earlier that year. Section 35 requires the notice to be given if a question of law arises that relates to the application of the Charter, or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter.
20 What follows from the reference to the Charter in the applicant's grounds of appeal are what purport to be questions of law. Doing the best we can from the questions as framed, and avoiding repetition, the following is a fair summary of her grounds:
(1) The trial judge demonstrated reckless and negligent conduct by proceeding to determine the issue without having read the applicant's affidavit of 18 September 2009 and Exhibits.
The transcript makes it plain that the trial judge had the affidavit.
(2) The trial judge acted with a lack of independence contrary to the requirements of the Australian constitution.
(3) The trial judge demonstrated 'obvious bias and partiality by giving orders obstructing criminal investigations' into the respondents and their Bill of Costs.
(4) The trial judge ought to have referred the applicant's complaints for investigation by the Director of Public Prosecutions.
(5) The order made by the trial judge prejudged the legal validity of the Bill of Costs.
(6) The trial judge ought not to have directed that the respondent's barrister prepare draft orders.
(7) A failure to incorporate the words, 'liberty to apply', in the order demonstrated a lack of judicial independence.
There were 21 separate questions of law, each of which might be recast into some form of complaint. There was a great deal of repetition. Some of the questions of law seemed to have nothing to do with the judgment and orders of the trial judge.
21 The amended Notice of Appeal was accompanied by the summons dated 5 October 2009, amended on 20 November 2009. By her summons, the applicant seeks leave to appeal against the judgment and order of Davies J made 21 September 2009 and also the joinder of 14 new parties, including the Chief Magistrate, counsel for the respondent, the Attorney-General, the Minister for Local Government and other individuals and entities with little or no obvious connection to the application for leave. The applicant also seeks an order under s 354 of the Crimes Act 1958 for the calling of a grand jury;[3] and leave to issue a writ against Casey City Council and other parties set out in an attached schedule, claiming damages.
22 Save for the orders sought by the applicant to vacate the taxation 'call-over' and to set aside the judgment and order, the orders sought by her seem to have little to do with the application for leave or any appeal against the judgment and orders of the trial judge. For the most part, they reflect a broader range of complaints about the conduct of the respondents in pursuing the applicant for unpaid rates.
23 Section 17A(4)(b)(ii) of the Supreme Court Act 1986 provides that leave to appeal is not required in cases of granting or refusing an injunction. In the present matter, the applicant had sought, by her amended summons, 'injunction to stop proceeding on 22/09/09'. This injunction was not granted but we do not think that a party can evade the necessity to obtain leave to appeal simply by seeking an injunction when that in reality is not the relief that is sought or could conceivably be granted. Be that as it may, the applicant made clear to the judge below that she would be satisfied with 'obtaining a stay order', so the case is not in our view one of refusing an injunction.
24 The order made is quite plainly an interlocutory order. It was an administrative order designed to hold over the summonses of both parties until the applicants application for leave to appeal had been heard and determined by the High Court. It was in the nature of a temporary stay. Accordingly, leave to appeal is required.
25 It is unnecessary to dwell upon the requirements for leave. In our opinion the judgment and order of the trial judge were plainly correct, accommodating in substance the applicant's application to the trial judge. The applicant asked for a stay of the summons for taxation pending a determination of her applications for special leave to appeal to the High Court. The trial judge directed that the anticipated 'call-over' not take place until after that date. The applicant got what she wanted. No question of error or substantial injustice arises.
26 The application having been dismissed, the applicant must pay the respondent's costs.
[1] Bahonko v Casey City Council, Court of Appeal 8 May 2009, Nettle JA and Coghlan AJA.
[2] Bahonko v City of Casey [2009] VSC 443, Davies J.
[3] By s 253 of the Criminal Procedure Act 2009 the grand jury is abolished.
Bahonko
Casey City Council [2011] VSCA 357