Bahonko v Moorfields Community & Ors [2006] VSCA 206

MAXWELL, P:

1 We have been assisted by detailed written submissions and very clear argument from Miss Bahonko, and also from counsel for the respondents. I particularly want to emphasise how well Miss Bahonko has conveyed to the Court what her concerns are about the way her application was dealt with in the County Court. It is very much to her credit, given the pain and distress she is suffering, that she has been able to state her position so clearly.

2 Unfortunately, for the reasons I am about to give, I consider that her application for leave to appeal fails. First, however, I must set out briefly the background to the application.

3 On 11 March 2004, while still employed by the second respondent, Miss Bahonko made a WorkCover claim for injury which she described as "chest pains, headaches, dizziness, sleeplessness and fatigue". The injury was said to be the result of "abusive treatment by the supervisors, Unit Manager and Director of Nursing".

4 On 27 May 2004, after ceasing employment with the first respondent, Miss Bahonko made a WorkCover claim for injury which she described as "post-traumatic stress; assault". She claims to have been assaulted by the Director of Nursing, managers and police officers.

5 The WorkCover claims were rejected. Those rejection decisions were referred to the Accident Compensation Conciliation Service. Conciliation was unsuccessful and, on 21 September 2004, the Service certified that there was a genuine dispute between Miss Bahonko and each of the employers, and advised her of her right to bring a proceeding in the County Court to decide the question of her entitlement under the Accident Compensation Act.

6 Miss Bahonko issued proceedings in the County Court on 14 July this year, together with a summons in which she sought urgent relief. It is the refusal of that application which is the subject of today's hearing.

7 The summons filed in the County Court gave notice of an application for the following orders:

"1. Urgent monetary relief in relation to WorkCover claims for weekly payments and lump sum compensations.

2. Immediate payment of all overdue weekly payments over the last two years".

There was affidavit material in support. The matter came on before Judge Coish on 25 July 2006, and his Honour adjourned the hearing to 15 August. On 15 August, after hearing argument, the Judge dismissed the application.

8 In her first summons in this Court, Miss Bahonko sought leave to appeal from the judge's decision on 25 July to adjourn her application for urgent relief. By a subsequent summons, she seeks leave to appeal also from the decision made by Judge Coish on 15 August.

9 His Honour did not publish written reasons. There is no recording of interlocutory applications in the County Court, but we do have notes made by the respondent's solicitor who was present at both hearings. Those notes give some indication of what transpired.

10 The key question which His Honour had to deal with was whether he was able to grant the urgent relief sought by Miss Bahonko. His Honour concluded that the Court could not grant urgent relief, for two related reasons. The first was that the power of the Court was limited by what the respondent employers, and the WorkCover Authority as their insurer, could lawfully be required to do under the Accident Compensation Act. The second was that, even if there were power to make an interim order, the judge could not decide whether any compensation should be paid without first having a full hearing on the merits.

11 As to the first of these, there is simply no power under the Act for the WorkCover Authority to make interim payments to a person whose claims for compensation it has rejected. The Parliament of Victoria has authorised the WorkCover Authority to make payments to injured workers where the Authority is satisfied that there is an entitlement to compensation under the Accident Compensation Act. That is, where "there is caused to a worker an injury arising out of or in the course of any employment": s.82(1).

12 The view which the WorkCover Authority has taken, in discharge of its statutory duty to decide claims for compensation, is that the injuries the subject of Miss Bahonko's claims do not attract that entitlement to compensation. Given that view, it would be unlawful for the Authority to make any payment to Miss Bahonko. Of course, if different or additional information were provided and the Authority came to a different view, then different consequences would follow. But for so long as the Authority, in discharge of its duty to assess and decide claims, considers that a claimant has no entitlement under the Act, it would be breaking the law if it were to make any payment to that person. The Court could not require the Authority to make a payment which it would be unlawful for the Authority to make.

13 Miss Bahonko asks, rhetorically, "Where does the Act say that urgent relief cannot be granted?" She is quite correct. There is no part of the Accident Compensation Act which says any such thing. But statutory authorities are only authorised to do those things which Parliament, in words in the legislation, authorises them to do. It is not the case that they can do anything which is not prohibited. That simply is not the law of Victoria. Statutory authorities are creatures of statute and they can only do what the statute authorises them to do. As I have already said, the Authority is not authorised to make payments to a worker where the Authority considers that the worker has no entitlement to compensation.

14 But even if the Authority had power to make interim payments to a worker in such circumstances, such that the Court in a proper case could make an order of that kind, the question would remain: how would the Court decide whether there was an entitlement under the Act, so as to justify an order for interim payments?

15 The judge considered that he could not decide that question without hearing the evidence on both sides. In my opinion, not only was that view open to His Honour, but it was the only view reasonably open in the circumstances. In accordance with the basic principles of justice, no conclusion of any kind could have been arrived at - given the dispute between the parties about what had happened and whose fault it was and what kind of injury was suffered and what caused the injury - without hearing evidence at length on both sides.

16 Miss Bahonko complains that she was denied the hearing on the merits which she asked for. Once again, that complaint is correct in fact. She was denied that hearing. But the denial was, in my opinion, completely correct in law as an exercise of the judge's discretion, for the reasons I have given.

17 Of the two considerations I have referred to, it is the first which is really significant. There was no occasion for Judge Coish to have a hearing into whether urgent payments should be ordered, since the Court had no power to require the Authority to make any such payments since entitlement had been denied. His Honour was entirely correct to decline to conduct the hearing which Miss Bahonko requested.

18 The Judge simply had no other option. He was limited, as the WorkCover Authority is limited, by what Parliament has laid down in the Accident Compensation Act. All judges, when dealing with compensation schemes established by Parliament, are limited by what Parliament says. That is of course the basis of our democratic society, that the elected representatives in Parliament can establish a compensation scheme and lay down the rules to determine who gets compensation and in what circumstances and in what amount and for what period of time. Judges are sworn to apply the law of the State - in this case, as laid down by the Parliament - and every citizen benefits from knowing that the courts will apply the law as laid down by Parliament and will not make up their own rules.

19 In order to obtain leave to appeal, Miss Bahonko would have to show that the decision of Judge Coish was sufficiently doubtful that it would justify leave to appeal being granted. The rule about leave to appeal is part of the law of Victoria and has been applied for many years, in order to enable this Court to deal primarily with appeals from final judgments and only to deal with interim or procedural decisions where there is some indication that the decision was wrong.

20 This is a pre-trial decision of a judge on a pre-trial application. It is not a final order for the purposes of the County Court Act. It can only be appealed by leave. By law, this Court is unable to treat this application as the appeal or as a directions hearing for the appeal. Miss Bahonko is in the same position as anybody else who wishes to challenge a pre-trial decision. Leave to appeal is required. The officers of the Court of Appeal Registry who insisted that Miss Bahonko must file an application for leave were simply applying the rules which govern the way this Court operates. Miss Bahonko was treated no differently from any other person. There was no singling out of her case. It has been dealt with in accordance with the normal rules.

21 For the reasons I have given, there is no reason to think that what his Honour did was wrong. On the contrary, in my opinion, his Honour was clearly right and had no other course open to him than the course which he took.

22 In an affidavit filed today, Miss Bahonko makes very serious allegations against the judge, including that he was biased and that he was a moral pervert. It is important that I say very clearly that I reject out of hand those allegations against him. There is nothing in the material that would in the remotest way justify any such allegation. Indeed, it is important that I assure Miss Bahonko that the judge was doing his duty according to law. The fact that he made a decision which she is unhappy with is not a basis for regarding him as biased against her or as in any other way acting improperly.

23 Two other specific points were made in submissions by Miss Bahonko. One was that there has been perjury by the solicitor for the respondents. I simply note that that allegation is made. It is not necessary, nor appropriate, for any investigation of that allegation. Suffice it to say that I have seen nothing in the material to suggest that there has been perjury.

24 It is important to record in these reasons that, following the dismissal of the application for urgent payments, the County Court has fixed the trial of Miss Bahonko's proceeding for hearing on 25 October. As I pointed out to Miss Bahonko in the course of the hearing, it is most unusual for a case commenced in July to be on for final hearing by October.

25 As I understand the position - and counsel for the respondents confirms it - the trial of Miss Bahonko's claims for compensation will begin on 25 October 2006. As Miss Bahonko says, it is most unlikely - impossible, probably - for the trial to be completed on that day. But it will be at least the start of the final hearing, as distinct from a preliminary hearing. It will be the opportunity for Miss Bahonko to begin presenting her evidence in order to have what she told us this morning she wanted, that is, a hearing of the merits of her claims for compensation. Indeed, what she wanted us to order was that Judge Coish have an urgent hearing on the merits of her claims. Because the County Court has listed the matter for a very early final hearing, Miss Bahonko is in fact being given the best possible opportunity which the Court system can offer for her claims for compensation to be decided on their merits.

26 Miss Bahonko expresses concern about being rushed into a hearing. That is an understandable concern, but it is exactly the same difficulty as she would have faced if she had been given an urgent hearing before Judge Coish. Miss Bahonko would have had to present all her relevant evidence, and the respondents would have had to present all their relevant evidence, in order to enable Judge Coish to decide whether any payments should be made.

27 What the County Court is offering is exactly what Miss Bahonko has been asking for. If she cannot be ready for the hearing on 25 October, no doubt the Court will adjust the date. But the opportunity is available to her to have what she wants. As she has indicated to us, it is also what she needs, because of her ill-health and financial distress. The Court will examine her claims and decide whether the WorkCover Authority should pay her compensation.

28 Miss Bahonko said in her submissions this morning that she regards it as unfair that there is such inequality between her position and that of her former employers, who are represented by barristers and solicitors. As I said to her, that is a correct statement. It is an obviously unequal position when one party has legal representation and the other does not.

29 She also said that her ill-health will mean that she cannot really do justice to her own case if she has to appear on her own behalf at a hearing of her claims. Again, accepting what she says about her medical condition, that is also an accurate statement. Obviously, someone who is not well cannot be expected to present their own case to a court.

30 It was to deal with those very issues - the inequality of representation and the fact that Miss Bahonko is not well enough to do justice to her own case - that I suggested during the hearing this morning that she make contact with the Unrepresented Litigants Co-ordinator of the Supreme Court, Ms Hammond, to explore the possibility of a referral to the Public Interest Law Clearing House for pro bono representation. That facility has been established by the Supreme Court to facilitate the provision of pro bono legal assistance to people in Miss Bahonko's position, who are without representation and for whom such representation is likely to be beneficial. Experience suggests that, for most people, some legal advice and representation is preferable to none at all, certainly where the other party is represented.

31 I explained to Miss Bahonko that, if the Public Interest Law Clearing House accepted her case, she would be represented by a barrister and solicitor. She would then have the great advantage of having someone with legal knowledge to argue on

her behalf in Court. That would avoid the obvious difficulty of her having to do so when she is not well and in pain.

32 Towards the end of the argument, we stood the matter down. I simply record in these reasons that this was done to provide an opportunity for Miss Bahonko to meet with the Co-ordinator. I know nothing of what transpired. What passed between Miss Bahonko and the Co-ordinator remains confidential between them, as of course it must.

33 I would conclude by repeating the view I expressed in argument, that an application for legal assistance through PILCH would seem highly desirable. Miss Bahonko has very strongly held grievances about a range of matters. She makes a number of serious allegations against a variety of people, not confined to her former employers. Legal advice is likely to be helpful in identifying for her how best to present her case for compensation, and in identifying which allegations are relevant to the claims for compensation and which are not.

34 For those rather lengthy reasons, in my opinion the application for leave to appeal should be refused.

EAMES, J.A.:

35 I agree with the order proposed by the learned President and with his reasons, and I would strongly support the statement expressed by the President that it would be in the interests of Miss Bahonko that she take all steps that she might reasonably be able to take to explore the possibility of legal representation. Her case can only be greatly assisted if she does achieve that end result. I support the suggestions made by the President that Ms Bahonko utilise the services of the officer of this Court to facilitate that. I would urge Miss Bahonko to consider that seriously, as it is a likelihood that her hearing (which has been facilitated by an early hearing date in the County Court) will be greatly enhanced and thus, her interests will be greatly enhanced, if she is able to obtain legal representation rather than conduct the

case herself.