Bahonko v Casey City Council [2012] VSCA 310

2 Later that year Master Daly dismissed an appeal from those orders. On 18 December 2008 Williams J dismissed an appeal from Master Daly[1]. Mrs Bahonko was again ordered to pay costs. On 8 May 2009 this Court refused leave to appeal Williams J's orders (and orders of Pagone J in the same proceeding) and ordered Mrs Bahonko to pay costs. Mrs Bahonko sought special leave to appeal that Court of Appeal decision from the High Court (M56 of 2009).

3 Before that special leave application was determined, on 7 September 2009 the Council issued a summons for taxation of the costs orders made by Master Daly and Williams J. That summons was returnable on 22 September 2009.

4 Mrs Bahonko then filed two summons in very similar terms, one was filed on 16 September 2009 and one, described as an amended summons, was filed on 18 September 2009. The summonses sought relief in extraordinary terms. The summonses sought to have the taxation summons struck out, sought to have the Council and its lawyer referred to a Grand Jury for determination of their criminal conduct towards Mrs Bahonko, sought to restrain the Council and its agents from entering her property, sought to have two named persons said to have written the bills of costs and the valuation notice for 2009 ordered to undergo psychiatric evaluation, sought an adjournment, and sought an 'injunction to stop proceedings on 22/09/09'. These summonses came on for hearing in the Practice Court on 21 September 2009 before Davies J.

5 Davies J ordered, in substance, that the taxation not take place until after the determination of the special leave application (M56 of 2009) and adjourned Mrs Bahonko's summons filed 18 September 2009 to a date to be fixed after the High Court decision on the special leave application. Mrs Bahonko sought leave to appeal from Davies J's orders. That proceeding, seeking leave to appeal from Davies J's orders, was case number S APCI 2009 3859.

6 The High Court refused special leave to appeal the Court of Appeal decision in relation to the Williams J orders on 16 June 2010 (M56 of 2009).

7 On 27 July 2011 Forrest J declared Mrs Bahonko to be a vexatious litigant.[2] The order relevantly reads as follows:

1. The defendant is declared to be a vexatious litigant pursuant to s 21 of the Supreme Court Act 1986 (Vic).

2. Subject to paragraph 3 of these orders, without leave, the defendant must not commence or continue any legal proceeding (whether civil or criminal) in the Court, an inferior court or any tribunal constituted or presided over by a person who is Australian lawyer.

3. The following proceedings are exempted from the operation of Order 2:

a. County Court, proceeding number CI 02573 of 2006;

b. Court of Appeal, proceeding number S APCI 2009 3859.

8 In the course of his reasons, Forrest J had said:

... I propose to exclude from the effect of the order ... Mrs Bahonko's appeal to the Court of Appeal against the orders of Davies J of 21 September 2009 in relation to the taxation of costs in the Casey City Council litigation.[3]

9 On 14 November 2011 the Court of Appeal dismissed Mrs Bahonko's application for leave to appeal from Davies J's orders in proceeding S APCI 2009 3859.[4] On 29 February 2012 the High Court refused special leave to appeal that Court of Appeal decision (M168 of 2011).

10 In August 2012 the Council's solicitors began re-agitating the taxation which the orders of Davies J had deferred. As a consequence, Mrs Bahonko's summons of 18 September 2009 was re-listed and came on for hearing before Kyrou J in the Practice Court on 12 October 2012.

11 Kyrou J, out of an abundance of caution no doubt, dealt with both summonses, the one filed 16 September 2009 and the one filed 18 September 2009. He ordered that the summonses be dismissed and ordered Mrs Bahonko to pay the costs. In 'other matters' he noted the following:

1. The Appellant has not identified any basis in fact, law or discretion upon which this Court could make any of the orders in the Summonses.
2. This order has been made after the hearing and determination of the Summonses on their merits.

12 By a document entitled 'Notice of Appeal' dated 26 October 2012 Mrs Bahonko has purported to appeal the orders of Kyrou J made 12 October 2012. What purports to be an articulation of the grounds is something which can only be described as a diatribe against the Judge, the Council, and the Council's lawyers.

13 By a summons dated 26 October 2012 amended 2 November 2012 Mrs Bahonko seeks an injunction against the Council to restrain it from taking further actions to recover costs from her, a stay of the costs orders, an order removing the Council's solicitors and its barrister, and an order adding the Council's solicitors as a party to the appeal. She has foreshadowed an application to also have the Council's barrister joined as a party to the appeal.

14 The respondent submitted that the notice of appeal and the summons, considered separately or together, constituted the commencement or continuation of legal proceedings and that the appeal should be dismissed as incompetent. The respondent submitted this dismissal would be under Rule 64.03(4).

15 Ordinarily, in the context of vexatious litigants interlocutory proceedings in the course of an action instituted by another person would not constitute the commencement of a legal proceeding, but an appeal or an application which is in substance an attempt to re-litigate what has already been finally decided does amount to the institution of legal proceedings.

16 In Hunters Hill Municipal Council v Pedler Yeldham J said:

While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form.[5]

17 In this case the relevant matter was finally decided (at the latest) on 16 June 2010 when the High Court refused special leave to appeal (M56 of 2009) from the Court of Appeal's refusal of leave to appeal the decision of Williams J of 18 December 2008. Since then Mrs Bahonko has been effectively seeking to set aside that decision or to prevent enforcement of it. It is significant that when Forrest J made his order declaring Mrs Bahonko vexatious he specifically excepted her then current attempt to set aside the decision or to set aside proceedings taken to enforce it, being her appeal S APCI 2009 3859. That first attempt came to an end (at the latest) when the High Court refused special leave on 29 February 2012 (M168 of 2011).

18 This appeal is a further attempt, in substance, to set aside the matter which was finally decided by Williams J (and the subsequent appeals). It is not within the exception to Forrest J's order. It should not have been commenced without leave.

19 We considered whether we should ourselves address the question of leave, but there is no prospect of leave being granted to institute an appeal by the Notice which has been filed. That Notice clearly constitutes an abuse of process.

20 We nevertheless listened to and read Mrs Bahonko's submissions and we have considered two documents upon which she relied, a research paper from March 2005 entitled 'Costs in Public Interest Proceedings in Queensland', and a paper delivered by Kyrou J at the Australian National University on 13 November 2009.

21 In her purported Notice of Appeal and in her submissions Mrs Bahonko had suggested Kyrou J had been guilty of bias as he had made disparaging comments about her in the ANU paper. Perusal of the paper reveals this complaint to be entirely without foundation. All Kyrou J did was refer to a reported decision of this Court to which Mrs Bahonko was a party.

22 The appeal having been instituted by Mrs Bahonko, a vexatious litigant, without leave, in our view it should be dismissed.

[1] [2008] VSC 571.

[2] [2011] VSC 352.

[3] [2011] VSC 352, [95].

[4] [2011] VSCA 357.

[5] Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488. The passage, or relevant parts of it, has been cited and adopted by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491-492, by the Full Court of the Supreme Court of Western Australia in Attorney-General v Michael [1999] WASCA 181 at [13]- [14], and by Ashley J in Attorney-General v Horvath, senior [2001] VSC 269 at [18]- [23]. See also Attorney-General for State of Victoria v Weston [2004] VSC 314; Clemens v Phillip Morris Ltd [2008] VSCA 48; and Bar-Mordecai v Attorney-General [2012] NSWCA 207.