Bahonko v Moorfields Community & Ors [2012] VSCA 89

1 Pursuant to a summons filed on 15 February 2012, as amended on 1 March 2012, the applicant seeks leave, under s 52(1A) of the Accident Compensation Act 1985 ('ACA'), to appeal from a decision made on 27 January 2012 by Judge Saccardo of the County Court. By the decision complained of, his Honour refused to disqualify himself, on the ground of alleged actual or apprehended bias, from hearing or dealing with the applicant's claim against her former employers and the Victorian Work Cover Authority for benefits under the ACA.[1] The applicant further requests that, if leave be granted, the appeal be heard immediately by this Court as presently constituted. By her summons she also seeks certain additional orders to which we will come.

2 On 16 September 2011, under s 21 of the Supreme Court Act 1986, a judge of this Court declared Mrs Bahonko to be a vexatious litigant.[2] It was ordered that she not commence or continue any legal proceedings without leave of the Supreme Court, with two exceptions. One of the exceptions was the proceeding in the County Court in relation to which the present summons was filed. We will assume, without deciding, that Mrs Bahonko does not need leave under s 21 of the Supreme Court Act 1986 to bring the present summons. The outcome of her application would be no different either way.

3 In a supplementary written submission (misdated 5 June 2012) handed up at the hearing of the summons, the applicant contended, in effect, that she did not need, either, leave under s 52(1A) of the ACA to appeal from the refusal of the County Court judge to disqualify himself. The applicant is not legally represented. Although she mentioned this point briefly during oral argument, she did not develop it. In the written submission she had only said the following in this regard:

1. Further, appellant Work Cover claim commenced before criminals in power corrupted the ACA 1985 Vic. & when No Leave was required whether Question of Law raised in interlocutory or final decision of the County Court thus appellant does not need leave to appeal on the Question of Law from Saccardo's decision & ruling.

We take this to be a reference to the fact that by s 43 of the Transport Accident and Accident Compensation Legislation Amendment Act 2010 (No 80 of 2010) (the 'amending Act'), s 52 of the ACA was amended as from 19 October 2010 by inserting a requirement for leave to appeal in relation to interlocutory matters. By virtue of those amendments, s 52(1) and (1A) now read:

(1) Subject to subsection (1A), any person who was a party to proceedings before the County Court at which a judgement or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.

(1A) If the judgement, decision or determination a person intends to appeal against was in respect of an interlocutory matter, the person may only appeal to the Court of Appeal with leave of the Court of Appeal.

As so amended, ss 52(1) and (1A) are applicable to 'a notice of appeal relating to a judgment or decision of the County Court given or made on or after the commencement date [19 October 2010]'.[3] It follows that the current provisions are applicable to the present matter, notwithstanding that the County Court proceeding was commenced as long ago as 2006 and was therefore, of course, on foot when the amending Act commenced.

4 The applicant's summons is founded on the assumption that s 52 of the ACA applies to her proposed challenge to Judge Saccardo's decision. However, another possibility is that s 74 of the County Court Act 1958, rather than s 52 of the ACA, is the proper source of any right to appeal. It is true that on 3 March 2007, some three years before the passing of the amending Act, this Court decided, in Bahonko v Moorefields Community & Ors,[4] that s 52 of the ACA in its then form was applicable to a challenge brought by the present applicant to an earlier ruling in the same County Court proceeding with which we ourselves are concerned. We note in passing that it was held in that case that, under the unamended legislation, Mrs Bahonko had an absolute right of appeal from an interlocutory ruling or decision. Eleven months later, in Bahonko v Moorefields Community,[5] Nettle JA (with whom Buchanan and Redlich JA agreed) said that it was arguable that, at least in relation to certain parts of the County Court proceeding as they were then constituted, Mrs Bahonko may have a right to appeal to this Court pursuant to s 74 of the County Court Act. At that time (February 2008), Mrs Bahonko's claim in the County Court proceeding was apparently framed more broadly than it is now. For example, it seems that her claims at that time included,[6] but do not any longer include,[7] a claim for damages. The precise nature of the claims being made in a County Court proceeding relating to a matter arising under the Act may bear upon the proper avenue for any appeal or application for leave to appeal.[8]

5 However those things may be, even if Mrs Bahonko's present challenge could or should have been brought under s 74 of the County Court Act 1958, nevertheless, by virtue of s 74(2D) of that Act she would still require leave to appeal, because the decision in question was interlocutory.[9] In order to obtain leave, the applicant must show that the decision of Judge Saccardo was wrong or was attended with sufficient doubt to justify the grant of leave and, also, that substantial injustice would be done if the decision were to stand.[10] On the other hand, if the proper avenue for appeal in this manner were s 74 of the County Court Act rather than s 52 of the ACA, Mrs Bahonko would not be confined by the requirement in s 52(1) that the proposed appeal be 'on a question of law raised during those proceedings'. An appeal under s 74 of the County Court Act is not so confined.[11]

6 No submissions were made by the respondents in relation to these jurisdictional matters. Indeed the respondents effectively adopted a neutral attitude to this application generally. They provided little or no assistance to the Court in relation to the facts, the applicable law or otherwise. In fairness to Mrs Bahonko as an unrepresented litigant, we will assume, without deciding, that, although she requires leave to appeal whether the appeal lies under s 52 of the ACA or under s 74 of the County Court Act 1958, she is not confined by the requirement to demonstrate that Judge Saccardo erred in law on a point that arose before him. This assumption benefits Mrs Bahonko in that she is relieved of the necessity of demonstrating that Judge Saccardo failed to identify the correct legal test to be applied. It would be enough if Judge Saccardo erred in his application of the relevant legal principles.[12] Indeed, we would go further in favour of Mrs Bahonko and assume, without deciding, that, further or in the alternative, her summons could be treated as the equivalent of an application for relief in the nature of prohibition. In British American Tobacco Australia Services Ltd v Laurie,[13] the applicant both appealed to the New South Wales Court of Appeal and sought prohibition from that Court in relation to a decision of a Judge of the Dust Diseases Tribunal to refuse to disqualify himself on the basis of alleged pre-judgment. The appeal was dismissed and so was the application for prohibition. An appeal was taken to the High Court in relation to the application for prohibition alone. In the High Court, the applicant succeeded (by a majority of 3:2) in obtaining prohibition against the judge of the Dust Diseases Tribunal. So we will assume in favour of Mrs Bahonko, without deciding, that, if we thought she had an arguable claim for an order in the nature of prohibition, we would at least be able, with her consent, to refer her summons to the Trial Division to be treated as an application for an order in the nature of prohibition as an alternative to granting leave to appeal. We note that, subject to any applicable dispensing power,[14] Order 56 of the Rules requires that any application for an order in the nature of prohibition be brought in a proceeding commenced by originating motion in accordance with the provisions of that Order and would conventionally be heard by a single judge.

7 Judging by Mrs Bahonko's request that the appeal be heard instanter if leave be granted, and having regard to her submissions generally, we conclude that she has put forward everything upon which she might rely for the purposes of a full appeal or for the purposes of an application for prohibition.

8 As we understand her material and her submissions, Mrs Bahonko's complaint about Judge Saccardo continuing to sit in the matter relates principally (but not solely) to the fact that his Honour's associate is one Kathy Lambert. In 2008 Ms Lambert was the associate to Judge Misso of the County Court. As at June 2008 Judge Misso was listed to hear Mrs Bahonko's case. He had already dealt with some interlocutory aspects of the case. At that time an inquiry into vexatious litigants was being conducted by the Law Reform Committee of the Victorian Parliament. Judge Misso made a written submission to the inquiry, apparently at the request of the Chief Judge of the County Court. Although Judge Misso did not name Mrs Bahonko in the submission, his Honour referred to what turned out to be her case as a 'case in point'. As this Court later found, Judge Misso's submission to the Law Reform Committee indicated that, shortly before the trial of Mrs Bahonko's claim was due to begin, his Honour 'had determined that the appellant made allegations without foundation, sought relief which was absurd, made applications which had no merit and did not understand how to conduct litigation conventionally'; that his Honour 'was of the opinion that the appellant belonged to a class of litigants who only saw the result they wished to achieve and interpreted any perceived reaction to be unjust'; and that his Honour 'was of the opinion that it was often impossible to make such litigants behave and think rationally'.[15] Judge Misso had gone on to hear and determine Mrs Bahonko's proceeding and had dismissed it.[16] This Court set aside his Honour's judgment on the ground of apprehended bias and ordered that the proceeding be re-tried by another judge.[17]

9 In due course Judge Saccardo was nominated to conduct the re-trial. A directions hearing was appointed for 27 January 2012. On that day Mrs Bahonko attended in person, together with counsel for the defendants, Mr Chamings. Mrs Bahonko noticed that Ms Lambert was present as the associate to Judge Saccardo. She also recognised the tipstaff on duty that day as a tipstaff who, she alleges, verbally threatened and abused her in 2008.

10 Mrs Bahonko applied verbally to Judge Saccardo that he disqualify himself from sitting as the trial judge in the proceeding. Before us, Mrs Bahonko has not tendered any transcript or contemporaneous note or, indeed, any proper account of the progress of the hearing. However, an indication of what occurred on that occasion and of certain relevant subsequent events can be gleaned from the written ruling published on 10 February 2012 by Judge Saccardo, from Mrs Bahonko's affidavits filed 17 February 2012 and 6 March 2012 and the respective exhibits thereto, and from Mrs Bahonko's submissions, especially the first of her two written submissions, which was filed on 17 February 2012.

11 In his written ruling dated 10 February 2012 Judge Saccardo said:

The plaintiff's application is based upon her assertion that my Associate had acted as the Associate to Judge Misso, who presided over the original trial in this proceeding, and that both my Associate and Judge Misso have engaged in corrupt and inappropriate practices in dealing with that trial. The plaintiff makes further allegations of bias and impropriety against both my Associate and myself, as set out in a facsimile addressed to Chief Judge Rozenes dated 3 February 2012, which I append to this ruling.

We will come to the contents of the facsimile of 3 February 2012 shortly. Judge Saccardo went on to refer to the legal tests for actual bias and apprehended bias respectively, citing relevant authorities.[18] Mrs Bahonko has made no submission to the effect that his Honour misstated or misunderstood the applicable tests, nor do we ourselves detect any relevant error in what his Honour said in that regard. Judge Saccardo concluded his ruling as follows:

1. That the plaintiff has made unfounded allegations of impropriety or corruption does not, in my opinion, raise proper grounds for an application that I disqualify myself as the trial Judge in this proceeding. It is clear that a judge should not automatically disqualify himself whenever requested to do so by a party on the grounds of bias. It is only where the circumstances of the case give rise to clear evidence of the existence of actual bias or the reasonable apprehension of the presence of bias that a judge should recuse himself.
2. In my opinion, the grounds relied upon by the plaintiff in her application that I disqualify myself are such that they do not meet any of the criteria necessary for the establishment of actual or perceived bias, and for this reason the plaintiff's application is refused.

12 The cover sheet to the published ruling of Judge Saccardo might be thought to suggest that his Honour had reserved his decision on 27 January 2012 and had given it on 10 February 2012; but that cannot be so, because a County Court Civil Jurisdiction Result Sheet, a copy of which is exhibited to Mrs Bahonko's first affidavit, indicates that certain orders were made on 27 January 2012, including:

Order that the application of the plaintiff that his Honour Judge Saccardo disqualify himself be dismissed.

13 Nevertheless, as mentioned above, the written ruling of Judge Saccardo refers to and annexes a document which came into existence after 27 January 2012, namely the facsimile from Mrs Bahonko to the Chief Judge dated 3 February 2012. As well as forming an annexure to his Honour's ruling, the facsimile is included as an exhibit to Mrs Bahonko's first (brief) affidavit. Also exhibited is a copy of a letter from Mrs Bahonko to the Minister for WorkCover, the Honourable Gordon Rich-Phillips, dated 1 February 2012. In paragraph 5 of the affidavit Mrs Bahonko deposes that her 'correspondence contains truth to the best of my knowledge'.

14 Mrs Bahonko's facsimile to the Chief Judge dated 3 February 2012 represents the bulk of the evidentiary material on which she relies in relation to the present issue. It contains a host of accusations and allegations against a large range of persons and institutions, including allegations of fraud and corruption, expressed in extremely florid and intemperate language.

15 The facsimile asserts that the Chief Judge and other judges of the County Court 'and their Associate who have knowledge of Judge Misso's Submission to the Parliamentary Committee & his prejudices against me & failed to disclose those for over 3 years are guilty of a cover up & perversion of justice'.[19]

16 After setting out numerous complaints, sometimes in racist language, about other aspects of the history of the matter, Mrs Bahonko's facsimile continues (so far as presently relevant):[20]

On 27 January 2012 I was subjected to further abuses & distress without a warning when I was faced with Kathy Lambert & tipstaff who abused me previously & acted in perversion of justice during my 12 days WorkCover trial before Judge Misso in June-July 2008 & Dir. Hearing had to be aborted again.

...

A pattern of wilful appearance of my abusers and criminals in the Court room sitting bas [scil, biased] judges and their Associate and tipstaff is Genocide under Criminal Code 1995 (Com).

...

It is plain for any reasonable member of the public that those who acted corruptly & criminally in my matter in the past should not act or have anything to do with my file & matter now following the order of the Court of Appeal for a new trial under a new judge.

The test of a reasonable member of the public is that it is plain that Associate to judge who participated in perversion & miscarriage of justice in the matter in 2008 as Ms Kathy Lambert & engaged in a cover up for 3 years of her Judge Misso's Submission of 18/06/08 must not deal in my matter.

The same applies to tipstaff who abused me in 2008 and now came to the court room on 27/02/12 with Judge Saccardo.

Further, Judge Saccardo even in this brief 10 minute appearance demonstrated to be unfit to sit in my WorkCover re-trial & his conduct is obstructive of justice as he should readily disqualify himself to facilitate re-trial but he has chosen to obstruct it instead & force me to appeal again to the Court of Appeal by his refusal to resign from the case.

Further, the criminal plans were revealed by Judge Saccardo on 27/01/12 when he stated that after 7 May 2012 my re-trial would not ever be heard and that I have time only till the end of the May.

Those criminal plans are transparent as the hearing of fabricated charges is set down for 24 June 2012 in the Magistrates Court at Melbourne & from the Judge Saccardo's statement it is plain that outcome of that hearing is already known to him that is I will be found guilty & falsely imprisoned if only & the outcome is further proven by pre-empting of that result by stating those on my National Police Certificate already.

Judge Saccardo's knowledge of criminal entities & individuals such as the VWA, the Uniting Church, Vic. Police & the Attorney General criminal plans for the future in relation to me exposed him as being part of those plans & this criminal ring as they trusted him with their plans as he stated trusting his Associate Ms Kathy Lambert former Associate of corrupt Judge Misso.

...

The same team of corrupt judges & administrators deals with my case in the County Court despite the orders of the Court of Appeal for a NEW JUDGE which includes the Associate to that judge.

...

It is very distressing to me to be faced without any warning with my abusers & individuals who committed criminal offences, miscarried & perverted justice & committed Genocide of me in this case previously.

Ms Kathy Lambert, a close friend of Rachael Kennedy & Lander & Rogers Lawyers was gossiping & chatting away in the Court room with Rachael Kennedy when the matter was heard by demonstrated corrupt Judge Misso in 2008.

Ms Lambert with J. Misso's tip staffer wilfully sabotaged my perusal of files in the Court room by destructing [scil distracting] me by loud conversation in front of me & the male staffer by threatening me with violence & yelling at me in the Court room.

Ms Lambert failed to provide my final written address to the Defendant's Barrister Mr. Chamings & Lander & Rogers thus caused miscarriage of justice.

Ms Lambert practically was in charge of my case before Judge Misso in 2008 as J. Misso was a newly appointed judge of about six months & relied on her.

Ms Lambert was a link of corruption & a fixer between Lander & Rogers. Mr Chamings & Judge Misso & she failed to disclose J Miso's Submission to the Parliamentary Committee with resulting miscarriage of justice.

Both of them appeared in the Court room on 27/01/12 together with Judge Saccardo causing me severe distress & abortion of a direction hearing.

Ms Lambert coloured her hair blonde when Associate to Judge Misso because he likes blondes, for Judge Staccardo [sic] she coloured her hair bronze-red & she wilfully is allocated to newly appointed judges by J. Rozenes.

Judge Saccardo demonstrated conflict of interest on 27/01/12 when he wilfully twice pointed to his tip staffer as trusted demonstrating that he knew of that tip staffer abuse of me in 2008. J. Saccardo was appointed by Rob Hulls & Hulls appointed judges as a rule with established pattern committed perversion of justice in my matters.

Judge Saccardo despite seeing my distress of being faced with Ms Lambert & the tip staffer of Judge Misso's & being told of my distress & corrupt conduct of Ms Lambert instead of immediately releasing me from the Court room & order Direction hearing before another judge & stating that he will look into my allegations against Ms Lambert stated that she is his trusted Associate & immediately arbitrarily rejected my allegations against her & defended her demonstrating his personal involvement with that woman thus demonstrated his disqualification from my case yet despite my application for his disqualification he refused to disqualify himself & insisted on continuing with the hearing against my will & distress & visible inability to continue.

Judge Saccardo's conduct was abusive & wilful & he done that knowingly & his refusal to disqualify himself is a wilful conduct to force me to appeal to the Court of Appeal plus it is a wilful conduct to cause delay. His undue attendance & reading from QC Chamings's every grimace & acting accordingly to please Mr Chamings demonstrates unfitness of J. Saccardo to sit in my case & his actual bias.

...

In Summary:

I request that Judge Saccardo be replaced & that other judge appears on 10/02/12 in the County Court.

In addition to his conduct on 27/01/12 & biased interpretation of the Court of Appeal judgments & its meaning & significance I am very distressed by Ms Kathy Lambert appearance & I have no control over my distress due to PTSD & I will not be able to conduct my proceedings in her presence & presence of Judge Misso's tipstaff.

These are medical reasons. ...

The facsimile then asserts that, in any event, Judge Saccardo cannot continue to sit in the matter because Mrs Bahonko has complained about him and about his associate Ms Lambert and his tipstaff to a Member of Parliament asking for the initiation of criminal inquiries with respect to her allegations of offences against the ACA.

17 Mrs Bahonko's complaint to the member of Parliament about Judge Saccardo and his staff appears to be constituted by parts of the abovementioned letter to the Honourable Gordon Rich-Phillips dated 1 February 2012. That letter, like the facsimile to Chief Judge Rozenes dated 3 February 2012, contains a host of complaints about a host of people, this time including the Minister himself. There is no need to rehearse what the letter says about Judge Saccardo and his staff, because all of that is repeated in the facsimile dated 3 February 2012.

18 In her written submission filed in this Court on 17 February 2012, Mrs Bahonko launches another tirade of complaints about a vast range of people and institutions, interspersed with further racist references to individuals and groups, including a scandalous racist reference to a judge of this Court. With particular reference to the present issue, Mrs Bahonko says:[21]

Ms Kathy Lambert not only covered up Misso's Submission of 18/06/08 about the applicant the County Court room was a chat room & a meeting room for entire two weeks for her & and her friend Rachael Kennedy yet she dared to come back again.

On 27/01/12 appellant was set up in the County Court room against Corrupt Judge Misso's team his Associate Kathy Lambert & tipstaves who abused her previously under Judge Misso & Judge Saccardo formally [scil, formerly] from Maurice & Blackburn solicitor firm.

Judge Saccardo not enough that he failed to disclosed the conflict of inertest [scil, interest] arising from his direct association with Maurice & Blackburn & the Victorian WorkCover Authority yet he wilfully & knowingly caused applicant's harm by bringing 2 Judge Misso's staffers to challenge applicant's.

Further, Judge Saccardo arbitrarily dismissed appellant's claims & allegations against Ms Kathy Lambert demonstrating that he will dismiss appellant's WorkCover claims in the same arbitrarily & offensive, abusive manner.

Judge Saccardo did not give appellant's natural justice to be heard & give details of her claims against Ms Kathy Lambert & the male tipstaves not to say to institute remedy & take them outside the Courtroom.

Judge Saccardo demonstrated degrading inhumane treatment of the appellant already before any directions hearing took place thus demonstrated that he has been prejudiced against the appellant & that his insisted [indecipherable] of sitting in appellant's 3rd re-trial of her WorkCover matter demonstrates that he had his pay day already or a price was attractive as a new judge an opportunity to advance his career & get in favour with the Attorney General Robert Clark & all powerful Irish Uniting Church mobs & Jewish alike.

Judge Saccardo further corrupted the outcome of the appellant's high Court application for special leave in this matter as within days the appellant mentioned to him on 27/01/12 of that application the High Court dismissed that application in spite that it was not a time yet for it to be considered as it should be about in March 2012.

Corruption is the reason Judge Saccardo was chosen was the case as he does not meet criteria to sit in such complex case being a newly appointed judge of 3 years his past dealings with obstetrics medical negligence cases have nothing to do with appellant's matter as appellant's matter is concerned with spine & brain injuries. ...

The other Question of law is in General whether a direct conflict of interest affecting judge's Associate and her acting in the matter before in a close time frame & when that acting further was associated with miscarriage & perversion of justice & involved a cover up, failures to disclose, abuse of the process & other serious criminal offences shall be removed from acting again in the same case?

In this specific circumstances Ms Kathy Lambert is the accused of a cover up, bribery & fixing result of the trial & one way or another will be questioned on one forum another at the same time as the court proceedings are mean to run.

The test of the reasonable member of the public is that she cannot be engaged in re-trial.

Judge Saccardo already refused to do without his Associate Kathy Lambert therefore it is plain he must resign with his Associate & abusive tipstaves.

19 In her further written submission (misdated 5 June 2012), Mrs Bahonko alleges, among other things, corrupt collusion between Justice Crennan of the High Court ('being Italian') and Judge Saccardo (allegedly being Italian also) with respect to the timing of a High Court decision relating to Mrs Bahonko 'so as to suit Judge Saccardo's progress of his pre-fixed hearing'.

20 There is absolutely nothing in Mrs Bahonko's material to justify the making of the various allegations of corruption and deliberate wrongdoing to which we have referred. Her allegations are not only scandalous; they are pitched at a high level and are conclusionary in nature. They are not properly particularised. They can be seen on their face to be highly implausible. To the extent, if any, that they represent allegations of primary fact, this Court is not obliged to accept them merely because the respondents have taken a neutral attitude. No court or tribunal is bound to accept uncontradicted evidence if it is in itself inherently improbable and unreasonable or inconclusive and unconvincing.[22]

21 In our view, the decision of Judge Saccardo not to disqualify himself is not attended with sufficient doubt to warrant a grant of leave to appeal. Nor is it reasonably arguable that Mrs Bahonko might be entitled to an order in the nature of prohibition.

22 The principles relating to bias on the part of judges were revisited by the High Court recently in the above mentioned matter of British American Tobacco Australia Service Limited v Laurie ("BATAS")[23]. As French CJ noted,[24] there is a variety of ways in which the impartiality of a court may be or may appear to be compromised. French CJ referred to the identification by Deane J in Webb v R[25] of four 'distinct, though sometimes overlapping, main categories of case'. They were:

• interest - where the judge has an interest in the proceedings, whether pecuniary or otherwise, giving rise to a reasonable apprehension of prejudice, partiality or pre-judgment;
• conduct - where the judge has engaged in conduct in the course of, or outside, the proceedings, giving rise to such an apprehension of bias;
• association - where the judge has a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceeding;
• extraneous information - where the judge has knowledge of some prejudicial but inadmissible fact or circumstance giving rise to the apprehension of bias.

French CJ went on to observe that these four categories had been described in Ebner v Official Trustee in Bankruptcy[26] (the leading Australian authority on bias) as providing 'a convenient frame of reference', albeit not necessarily a comprehensive taxonomy.

23 It is difficult to categorise Mrs Bahonko's principal complaint about Judge Saccardo. She appears to be alleging prejudice, partiality or pre-judgment arising not from any interest in the proceedings but rather from association, namely from the fact that his Honour's Associate was formerly the Associate to Judge Misso and worked with Judge Misso at the time of his submission to the Law Reform Committee of the Parliament and during the hearing and determination of Mrs Bahonko's claim in 2008. Thus Mrs Bahonko seems to be alleging a kind of transferred pre-judgment.

24 It will be recalled that Mrs Bahonko is alleging both actual bias and apprehended bias against Judge Saccardo.

25 In SCII v Minister for Immigration[27] von Doussa J said:

Actual bias arising from pre-judgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

Justice von Doussa went on to note that in the leading Australian case relating to actual bias, Minister for Immigration & Multicultural Affairs v Jia Legeng,[28] Gleeson CJ and Gummow J had stressed that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be 'distinctly made and clearly proved'.[29] Judge Saccardo's own comments relating to actual bias at paragraphs 2, 3, 6 and 7 of his ruling are fully consistent with these observations.

26 Nothing in Mrs Bahonko's evidence or submissions raises any basis for concern that Judge Saccardo is actually biased against Mrs Bahonko's claim. That is to say, no basis is shown for any concern that his Honour's mind is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Far from the allegation of actual bias being 'distinctly made and clearly proved' we think that there is no proper foundation for it at all in the material put forward by Mrs Bahonko. To avoid repetition, we will deal further with that material under the heading of apprehended bias, to which we now come.

27 The basic principle, as established in Ebner,[30] is that:

... a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

28 The hypothetical lay observer must be 'fair minded'. Although the test involves a 'double might' it also calls for reasonableness ('might reasonably apprehend'). Further, as the Full Court of the Federal Court observed in Cabcharge Australia Ltd v Australian Competition and Consumer Commission:[31]

... the 'double might' test in Ebner is not inconsistent with the pre-judgment 'incapable of alteration test' in Jia Legeng. That is, the reasonable apprehension that 'a fair-minded lay observer might' have is that the mind of the judge might be 'incapable of alteration' ...

This passage from Cabcharge was referred to with approval and applied by the Full Court of the Federal Court in John Holland Rail Pty Ltd v Comcare,[32] a case in which it was held that a certain ex parte communication between one party and the trial judge's associate did not give rise to apprehended bias. Further again, it must be recalled that the Ebner test requires two steps. The first is 'the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits'. The second is an 'articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits'.[33] Finally, a certain level of knowledge is to be attributed to the fair minded lay observer for the purpose of determining whether that observer would reasonably apprehend bias. In Johnson v Johnson[34] the plurality said:[35]

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.

In the same case Kirby J referred to the attributes of the fictitious lay observer as follows:[36]

Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. ... [A] reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

29 In BATAS[37] French CJ referred to these passages from Johnson v Johnson and stated that he agreed with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment. Although the judgment of French CJ in BATAS was a dissenting one, there was no disagreement between the majority and the minority in relation to this or any other question of principle.

30 In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,[38] Pain J was sitting with an Acting Commissioner in accordance with the ordinary processes of the Land and Environment Court of New South Wales. An application was made by the Minister to remove the particular Acting Commissioner on the ground that he was at the same time acting as counsel for a claimant in native title proceedings in the Federal Court, whilst the Minister's counsel in the Land and Environment Court was also acting for the relevant Minister of State in opposition to the native title claim in the Federal Court. The Federal Court proceedings were active and it was very likely that in the period during which judgment in the Land and Environment Court matter was reserved, counsel would be engaged with each other on opposing sides as part of the usual interactions expected in native title proceedings. Justice Pain delivered an ex tempore judgment dismissing the Minister's application for the disqualification of the Acting Commissioner. In doing so her Honour referred to Ebner and to BATAS. She referred briefly to the role of Acting Commissioners in Aboriginal land rights cases, namely to assist and advise the Court in its adjudication under the applicable statutory provision. Her Honour found it relevant to distinguish between the role of an Acting Commissioner (which did not include adjudication) and that of a judge under that provision. Her Honour then turned to the knowledge to be attributed to the fair minded lay observer. She said:[39]

In this case the fair minded lay observer would be assumed to know generally about the nature of the adversarial process and the professional and impartial role of barristers engaged on behalf of parties in such processes (here the Federal Court Native Title proceedings). I consider that persons should also be assumed to be informed about the different role of an Acting Commissioner in this Court as an advisor to the judge hearing a particular matter. There is a clear and important distinction between those two professional roles. In light of the knowledge to be assumed by the fair minded lay observer in this case I do not consider the apprehension of bias applying the Ebner test of there being a real possibility that he or she might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the proceedings, is made out in relation to Acting Commissioner McAvoy.

31 In Heedes v Legal Practice Board,[40] the applicant had been unrepresented in proceedings before the Supreme Court of Western Australia in which he was found guilty of contempt of court by engaging in legal practice without proper qualifications. He later discovered that certain comments had been made by a Master in his absence during an interlocutory hearing in the matter. He asserted that the Master's comments indicated that a particular named judge would be appointed to hear and determine the matter because that judge was used to committing people to prison. The named judge did hear the case and did find the applicant guilty, although he did not impose a prison term. The applicant appealed against the decision on the ground of apprehended bias on the part of the trial judge. Ultimately the Court of Appeal of Western Australia held that the Master's comments had been misunderstood by the applicant. As to the application of the bias test in cases involving unrepresented litigants, Roberts-Smith JA (with whom Owen JA and Wheeler JA agreed) said:[41]

As Steytler J observed in McCreed (at [16]) the test is reasonably strict and particular sensitivity may need to be shown in some cases. I would be prepared to accept that cases in which a litigant is self-represented will usually fall into that category. But that is not to suggest self-represented litigants should be entitled to rely upon unreasonable or ill-considered apprehensions or those founded upon the lack of even a rudimentary understanding of basic legal processes.

32 Thus, we would attribute to the fair minded lay observer knowledge that in a civil case triable by judge alone in Victoria or indeed anywhere in Australia, whatever assistance the judge may have from persons who are not judges - such as counsel, solicitors, witnesses, assessors, the judge's associate or tipstaff or other court staff - '[t]he judgment in the case, the exercise of the judicial power, remains that of the judge'.[42]

33 In the present case, Mrs Bahonko's objections based on the position of Ms Lambert are misconceived. Apart from Mrs Bahonko's speculation, there is no evidence that Ms Lambert had anything to do with the preparation of Judge Misso's submission to the Law Reform Committee; or that Ms Lambert had any influence over Judge Misso in relation to his findings and decision in 2008. Indeed there is no evidence as to whether Ms Lambert has legal training or qualifications. Mrs Bahonko is completely out of order in describing Judge Misso as 'corrupt'. His decision was set aside by this Court on the somewhat technical ground of apprehended bias. There is absolutely no foundation for Mrs Bahonko's description of him as 'corrupt'. Any similar suggestion in relation to Ms Lambert is likewise utterly without foundation, on the material before us. Mrs Bahonko refers to alleged friendly chatting between Ms Lambert and the solicitor for the defendants, Ms Kennedy, while the case was proceeding in the County Court in 2008. It may be unwise for judicial staff to engage in private or overly familiar conversations with parties or their representatives while court proceedings are on foot. However, it seems from Mrs Bahonko's own material that any conversations between Ms Lambert and Ms Kennedy occurred in the court room within the hearing of Mrs Bahonko. Mrs Bahonko gives no specifics of anything said. Presumably there was nothing untoward.

34 In Bahonko v Sterjov,[43] Ryan J refused Mrs Bahonko leave to appeal from a judgment of Jessup J. Mrs Bahonko had applied to Jessup J for an order requiring that a legal practitioner, Mr McKenney, who was representing her opponent in the proceeding, be required to stand down from the proceeding. The application was based on the fact that Mr McKenney had formerly been an associate to a Federal Court judge and was said by Mrs Bahonko to be on good terms with persons within the court. Justice Jessup refused the application. In this regard Ryan J recounts Jessup J as having said:[44]

The applicant, as I understand her grounds, seeks to give further support for this order by asserting, as she did orally that she once saw Mr McKenney in conversation with a member of the staff of the court, and that to her observation the conversation appeared to be amicable. She gathered from that and submitted to me, that Mr McKenney had either associates, friends or agreeable contacts within the court, and that therefore I should assume that the ability of the court to do impartial justice as between the parties was compromised. This is a submission of no substance. I would hope that the staff members of the court converse agreeably with anyone who comes into contact with them as the occasion may demand. It is very common for that to occur. Members on the staff of the court must inevitably come into contact not only with litigants but also with their professional representatives. It is notorious that they engage with them in an amicable and, one would hope, a satisfactory way.

Justice Ryan said that he regarded those observations, with respect, as unexceptional.[45] Justice Ryan went on to dismiss an application by Mrs Bahonko that Jessup J be disqualified from further involvement in the proceedings on the ground of bias. On 15 November 2007 the High Court dismissed as incompetent an application for special leave to appeal from the decision of Ryan J, observing that in any event the application did not advance any question of law that would justify the intervention of the High Court and that the allegations of bias on the part of Jessup J were devoid of merit.[46]

35 In any event, the present challenge relates to the decision of Judge Saccardo in January 2012, not to the conduct of Judge Misso or Ms Lambert in mid-2008, some three and a half years earlier. Mrs Bahonko says that during the hearing on 27 January 2012 Judge Saccardo referred to Ms Lambert as his 'trusted associate', and she says that this is sufficient to disqualify Judge Saccardo. But, assuming that Judge Saccardo did refer to Ms Lambert as his trusted associate, that would be no basis for any concern that Ms Lambert will have influence, much less any undue influence, over the decision making of Judge Saccardo. As mentioned above, the responsibility for the exercise of judicial power rests with the judge alone, and a fair-minded lay observer should be taken to appreciate that.

36 As to Judge Saccardo's tipstaff, Mrs Bahonko does not suggest that he is likely to have any influence on the judge's decision making. In those circumstances it is unnecessary for us to say anything further about her complaints in relation to the tipstaff.

37 Mrs Bahonko's other complaints about Judge Saccardo himself can be seen on their face to be far fetched and baseless.

38 Mrs Bahonko claims that she cannot face appearing in Judge Saccardo's court for 'medical reasons', but there is no medical evidence before us in this regard and this is not a matter of relevance on this application.

39 Mrs Bahonko submitted orally and in her written submission of 17 February 2012 that she was denied natural justice by Judge Saccardo by not being permitted to give full details of her complaints concerning Ms Lambert and the tipstaff. However, there is nothing in Mrs Bahonko's affidavits or exhibits to warrant that submission. Despite the volume and variety of complaints contained in her correspondence with the Chief Judge of the County Court and with the Minister (both sent within days of the hearing) there is no mention in either piece of correspondence that Judge Saccardo in any way restricted Mrs Bahonko in the presentation of her case. To the contrary, on page 5 of the facsimile to the Chief Judge, in a passage quoted above, Mrs Bahonko says that she told Judge Saccardo of her allegations against Ms Lambert. Her complaint to the Chief Judge was that Judge Saccardo rejected her complaints, not that he declined to hear them. There is no substance whatever in Mrs Bahonko's complaint of denial of natural justice or procedural fairness.

40 For these reasons we consider that Mrs Bahonko's summons should be dismissed insofar as it seeks leave to appeal or any other relief in relation to the refusal of Judge Saccardo to disqualify himself from hearing and determining her case.

41 The amended summons also seeks a declaration that the County Court is in contempt of orders of this Court made on 5 June 2008, 1 September 2011 and 16 December 2011 in relation to her proceeding in the County Court. Obviously this is not the appropriate occasion to entertain any claim for contempt. In any event, of course, the application is entirely misconceived. The County Court cannot be charged with contempt of this Court's orders. Moreover, Mrs Bahonko's underlying grievance in this regard is based on a misinterpretation by her of s 52(8) of the ACA. That subsection provides:

On the making of a determination by the Court of Appeal on an appeal under this section, the County Court must review each judgment, decision or determination and make a new determination not inconsistent with the Court of Appeal's determination.

Contrary to Mrs Bahonko's apparent understanding as conveyed by her facsimile to Chief Judge Rozenes, s 52(8) is not a section which, to use her words:

requires the County Court - a panel of judges - to review its decisions since 2006 prior to any further re-trial & provide response to me in writing.

Section 52(8) merely requires that after a successful appeal the case be re-heard and re-determined not inconsistently with the determination of the Court of Appeal. Accordingly, there is no merit in Mrs Bahonko's assertion that the Registry of the County Court has erred by refusing to seal and issue a proceeding by her seeking a 'review' of the kind she wrongly believes to be required as a result of her prior successful appeals.

42 Nothing in Mrs Bahonko's material provides any proper support for the additional claim that she makes in her summons that the firm of Lander & Rogers be removed as representatives of the defendants in the County Court proceeding. Nor, contrary to her submission, is that application properly 'incidental' to her application for leave to appeal from Judge Saccardo's refusal to disqualify himself.

43 Finally, Mrs Bahonko's summons seeks orders for the appointment of a jury to hear her County Court proceeding or, in default, orders granting her the substantive relief she seeks in those proceedings. Obviously, neither application can be granted by this Court. Nor is either application properly incidental to her application for leave to appeal from the decision of Judge Saccardo. Likewise there is absolutely no merit in Mrs Bahonko's application for a grand jury determination of alleged criminal offences 'committed by the Defendants & the County Court against the ACA 1985 Vic. & the appellant'. We note in passing that the grand jury procedure has been abolished in Victoria.[47]

44 For these reasons, we will order that the applicant's summons filed 15 February 2012, as amended by her amended summons filed 1 March 2012, be dismissed.

[1] [2012] VCC 32.

[2] Attorney-General for the State of Victoria v Bahonko [2011] VSC 352.

[3] See s 370 of the ACA, as inserted by s 129 of the amending Act.

[4] Unreported, 3 March 2007, Buchanan and Redlich JJA.

[5] [2008] VSCA 6 at [13]- [17].

[6] [2008] VSCA 6 at [3].

[7] [2008] VCC 828 [1].

[8] See Clarke v National Mutual Life Association [2010] VSCA 43 at [2], [3], [5], [35]-[55]. Note, however, that the significance of Clarke may be affected by the amendments to s 43 of the (Accident Compensation) Act made by s 75 of the Accident Compensation Amendment Act 2010 (Act No 9 of 2010), especially the repeal of s 43(2) of the ACA. In that regard, see, especially, Clarke at [48].

[9] Cf. Bahonko v Sterjov [2007] FCA 375 [8] (Ryan J).

[10] See Darrell Lea (Vic) Proprietary Limited v Union Assurance [1969] VicRp 50; [1969] VR 401, 428; Nieman v Electronic Industries Limited [1978] VicRp 44; [1978] VR 431, 441-2.

[11] Victorian Work Cover Authority v CE Heath Underwriting Insurance (Australia) Pty Ltd [1998] 2 VR 427 at 430 (Ashley JA); ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at [76] and footnote 25 and cases there cited.

[12] Compare British American Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 at [125]- [130], especially at [129].

[13] [2009] NSWCA 414.

[14] Such as the power conferred by r 2.04 of the Supreme Court (General Civil Procedure) Rules 2005 (the 'Rules').

[15] Bahonko v Moorefields Community & Ors [2011] VSCA 259 [17] per Buchanan JA, with whom Redlich JA agreed.

[16] [2008] VCC 829.

[17] [2011] VSCA 259 at [22].

[18] As to actual bias, his Honour cited Wannakuwattewa v Minister for Immigration & Ethnic Affairs, North J, 24 June 1996, FCA, Number VG 451 of 1994 (Unreported); Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. As to apprehended bias, his Honour cited Livesey v New South Wales Bar Association (1983) 151 CLR 258; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; R v Commonwealth Conciliation & Arbitration Commission; ex parte the Angliss Group (1969) 122 CLR 546 and Galea v Galea (1990) 19 NSWLR 263.

[22] Hardy v Gillette [1976] VicRp 36; [1976] VR 392 at 396-397.

[23] [2011] HCA 2; (2011) 242 CLR 283.

[24] [2011] HCA 2; (2011) 242 CLR 283, 302 [38]. The Chief Justice dissented in the result, but not on any relevant question of principle.

[25] [1994] HCA 30; (1994) 181 CLR 41, 74.

[26] [2000] HCA 63; (2000) 205 CLR 337.

[27] [2002] FCA 688, [36].

[28] (2001) 205 CLR 507.

[29] At [69] per Gleeson CJ and Gummow J and [127] per Kirby J.

[30] [2000] HCA 63; (2000) 205 CLR 337, 344. See also Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293-4.

[31] [2010] FCAFC 111, 28.

[32] [2011] FCAFC 34; [2011] 276 ALR 221, 229-230 [34].

[33] [2000] HCA 63; (2002) 205 CLR 337, 345 [8], quoted by French CJ in BATAS [2011] HCA 2; (2011) 242 CLR 283, 302 [37].

[34] [2000] HCA 48; (2000) 201 CLR 488.

[35] [2000] HCA 48; (2001) 201 CLR 488, 493 [19]. Likewise see AJH Lawyers v Careri and Others [2011] VSCA 425 at [23].

[36] [2000] HCA 48; (2000) 201 CLR 488 at 508-509 [53].

[37] [2011] HCA 2; (2011) 242 CLR 283 at 305-306 [46]- [47].

[38] [2011] NSWLEC 233.

[39] [2011] NSWLEC 233 [7].

[40] [2005] WASCA 166.

[41] [2005] WASCA 166, [20].

[42] Genetics Institute Inc v Kirin-Amgen Inc (No 2) (1997) 149 ALR 274 at 250-1 (Heerey J), cited with approval by the Full Court of the Federal Court in Genetics Institute Inc v Kirin Amgen Inc [1999] FCA 742; (1999) 163 ALR 761 at 771-772 [36].

[43] [2007] FCA 375.

[45] At [14]. See also Duff v The Queen [1979] FCA 83; (1979) 28 ALR 663 at 681.

[46] [2007] HCA Trans 666 (15 November 2007) (Gummow and Kiefel JJ).

[47] Criminal Procedure Act 2009, s 253.