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[2007] FCA 1449
Federal Court of Australia
2007-09-14
Middleton J
Original judgment source is linked above.
Introduction 1 Application has been made by the respondents seeking orders that the applicant be refused leave to extend time for the initiation of her proceedings, or in the alternative, summary judgment in favour of the respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ('Federal Court Act'). 2 The substantive proceeding was initiated by the applicant, Ms Bahonko, pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act'). That section provides that if a complaint has been terminated by the President of the Human Rights and Equal Opportunity Commission ('the Commission') under, relevantly, s 46H, of which notice has been given under s 46PH(2), any person affected by the complaint may make application to this Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. 3 Section 46PO(2) provides that any such application must be made within 28 days after the date of issue of the notice of termination, or within such further time as the court concerned allows. 4 The application and claim were filed on 26 July 2006 and relate to a complaint made to the Commission dated 19 January 2006 against the first respondent ('the NBV'), the second respondent ('the Minister'), and the "Victorian Government". Although the application and claim were made against the Minister by name, Bronwyn Pike, she is the former Minister for Health, and is the current Minister for Education, and it is convenient for the purposes of this judgment to refer to Bronwyn Pike as "the Minister". I will amend the description of the second respondent to read "Former Minister for Health/Current Minister for Education" as requested by the applicant. 5 On 1 June 2006, a delegate of the Commission terminated the complaint of race and disability discrimination pursuant to s 46PH(1)(c) of the HREOC Act on the basis that it was lacking in substance, and gave Ms Bahonko notice of the termination on the same day. Accordingly, Ms Bahonko was some 27 days late in commencing this proceeding and, putting aside arguments raised by Ms Bahonko that in the circumstances of the case leave is no longer in issue, to which I will return later, application has been made by Ms Bahonko for leave to file out of time her application and claim. 6 The application filed in this proceeding alleged that the respondents: …engaged, have been engaged and continue to engage in a gross violation of fundamental human rights of the applicant in the economic, social, cultural, political, educational and other fields of life with the purpose of nullifying applicant's exercise on an equal footing of her rights in these fields. NBV requires applicant to comply with terms, conditions & requirements which are not reasonable having regard to the circumstances of the case & the applicant cannot comply with those and the requirements to comply has the purpose and effect of nullifying and impairing the recognition on an equal footing as the other person would have in all the fields of a public life. Such actions are based on the applicant's race, descent, ethnic origin, political opinions and actions, religious beliefs and imputed disabilities. 7 Ms Bahonko alleged that the Minister, in addition, "has vicarious liability" under s 18A of the Racial Discrimination Act 1975 (Cth) ('RDA'). 8 In the accompanying claim filed in accordance with O 81 r 5 of the Federal Court Rules ('the Rules'), Ms Bahonko claimed she suffered discrimination contrary to: · the Disability Discrimination Act 1992 (Cth) ('DDA'), based on an imputed disability; · section 9 of the RDA; · the International Covenant on Civil and Political Rights (see Sch 2 of the HREOC Act); and · the Universal Declaration of Human Rights. 9 The particulars of the discrimination are described in the following terms: · The respondents "nullified applicant's rights in all spheres of the applicant's life including the provision and receiving of health services". · The respondents failed to comply with the HREOC Act and any other relevant legislation "in their criminal actions against the applicant". · The respondents "imputed multiple disabilities upon the applicant and vilified applicant, then discriminated against applicant on the basis of their imputations, impositions and vilifications". · The respondents denied the applicant "all human rights, liberty and freedom". · The respondents subjected the applicant to "a racially motivated harassment and psychological tortures for a prolonged period of time (the last two years)". · The respondents' actions were wilful and deliberate according to a "long term criminal and a far-reaching plan". This included an attempt to break up the applicant as a person and commit an "assault on applicant's identity". The respondents' actions prevented the applicant from properly supporting herself and leading a dignified life. The respondents' actions amount to genocide. 10 Ms Bahonko seeks relief by way of injunctions against the alleged conduct of the respondents. She also seeks aggravated damages for economic losses consisting of income and other benefits for 21 years being the remaining years of her nursing career. She also seeks aggravated damages for non-economic losses, including damages to health, reputation, identity and nullification of her future.
The Status of the Proceedings 11 The procedural background to these proceedings is set out in my judgment delivered on 14 March 2007: see Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351, particularly at [12] to [39]. 12 In this proceeding, a number of notices of motion have been filed by Ms Bahonko at various times. Some of those motions have been completely dealt with, some of them have been partly dealt with, and others have not been determined being left to await the determination of the applications the subject of these reasons. It is useful to set out the parts of the notices of motion that remain open for determination by the Court:
The factual background 15 It is useful to set out the background to the complaint of Ms Bahonko. In early 2003, Ms Bahonko commenced work at Moorfields Aged Care facility at Box Hill ('Moorfields'). Whilst working at Moorfields, Ms Bahonko approached the Director of Nursing, Ms Riley, with concerns about the workplace. After this consultation, Ms Bahonko claimed she started to be "systematically harassed, stalked, subjected to various set ups and abuses". 16 In August 2003, Ms Bahonko commenced a second job part time at another Uniting Church Aged Care facility at Bodalla ('Bodalla'). Whilst in that position, Ms Bahonko was told by the Director of Nursing "not to show outside religious terms". This was apparently in response to her wearing a Virgin Mary on a chain visible outside her uniform. In around November 2003, Ms Bahonko stated that she was "stalked" by Ms Turnbull (CEO of Moorfields) and was "subjected to harassment and unlawful practices and the working condition as at Moorfields". On 9 March 2004, Ms Bahonko claimed she was emotionally and verbally assaulted and openly told that she had no rights. She immediately ceased working at Bodalla. 17 On 6 May 2004, an incident occurred at Moorfields which resulted in Ms Bahonko being escorted off the premises by the police. 18 It appears that some time before the incident, a complaint was made by a patient about Ms Bahonko. While that complaint remained unresolved, it seems that another two complaints were made against Ms Bahonko, complaining of inappropriate communication and aggression. All three complaints remained unresolved at the time of the incident on 6 May 2004. By virtue of the complaints being unresolved, Ms Riley and Ms Turnbull decided to ask Ms Bahonko to stand down from her duties at Moorfields, pending an investigation into the outstanding complaints. 19 There are two different versions of events of what occurred on 6 May 2004. One version is that Ms Riley, along with Ms Wood, the Quality Manager at Moorfields, approached Ms Bahonko to ask her to leave the workplace. According to an incident report completed on the day, Ms Bahonko at first agreed to leave, but when Ms Riley asked her to give the keys to the drug trolley, she refused. Some discussion ensued as to what stage Ms Bahonko was in administering medication to the resident patients. Ms Riley began to explain to Ms Bahonko that her actions with the medication were against "safe practice". Ms Bahonko apparently put her keys back in her pocket, sat down, and made some private phone calls. At this stage, Ms Wood contacted Ms Turnbull about how to manage the situation, who instructed her to contact the police to have Ms Bahonko removed. It seems that Ms Riley again asked Ms Bahonko to hand over the keys and leave the premises, which was refused, and the police were contacted. After the police arrived, Ms Bahonko asked them to check her pre-prepared medication. The police asked her to hand over the keys and leave the premises, at which point Ms Bahonko apparently began disposing of the pre-prepared medication. The police physically approached her and escorted her from the premises. Ms Riley completed a report of the incident on the day, and also completed a medication incident report, which provided that Ms Bahonko had not adhered to the procedural and safe practice guidelines in preparing the medication on 6 May 2004. 20 On the other hand, Ms Bahonko claimed the incident was a "criminal set up" organised by Ms Riley and Ms Turnbull. Ms Bahonko claimed that her employer tampered with medication she was to administer. Ms Bahonko claimed the trolley with medications was taken from her and she was denied "a lawful handover of medications" when she stood down from her position. She also said that she was lawfully obliged to discard the medication to prevent further crimes and frauds but was told by the police that she was "discarding evidence". In response to the "set up", Ms Bahonko made an official complaint to the safety authorities that she was "viciously assaulted" at Moorfields by police officers allegedly under the direction of Ms Riley. 21 Whatever were the actual circumstances of the incident, as a result, on 10 May 2004, a letter was sent to Ms Bahonko from Ms Turnbull terminating her employment at Moorfields for misconduct. 22 On 19 May 2004, Ms Riley made a complaint to the NBV regarding the incident. 23 On 24 May 2004, in response to the complaint made by Ms Riley, the NBV held an extraordinary board meeting and decided to:
The Legislative Scheme 41 For the purposes of this proceeding, it is useful to set out some key provisions of the HREOC Act. The HREOC Act defines "unlawful discrimination" in s 3 as meaning any acts, omissions, or practices that are unlawful under relevant provisions of the DDA, the RDA, the Sex Discrimination Act 1994 (Cth) and the Age Discrimination Act 2004 (Cth). 42 Justice Weinberg has usefully set out some other key aspects of the HREOC Act in the recent decision of Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [14] to [20]. I should note that Ms Bahonko submitted that the decision of Weinberg J should not be followed. However, leave to appeal from that decision was refused by Tracey J in Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 and in my respectful view, the statement of the relevant principles as set out by Weinberg J is correct. 43 Part II of the HREOC Act deals with the functions of the Commission, which include functions relating to human rights and equal opportunity in employment. It is under this Part that the Commission dealt with Ms Bahonko's claims of discrimination on the grounds of religion and political opinions. 44 Part IIB of the HREOC Act specifically deals with redress for unlawful discrimination. Division 1 of Pt IIB provides for conciliation by the President of the Commission and s 46PH allows the President to terminate a complaint on a number of grounds, including where the President is satisfied that the complaint is lacking in substance. 45 Division 2 of Pt IIB provides for possible further action in this Court or the Federal Magistrates Court where a complaint has been terminated by the President. Section 46PO allows a person affected by a complaint, where that complaint has been terminated, to make application to this Court for review. Section 46PO(3) is in the following terms: The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substances as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. 46 As mentioned above, s 46PO(2) provides that any application must be made within 28 days after the date of issue of the notice, or "within such further time as the court concerned allows".
The relevant principles 47 Under s 46PO(2), it is clear that the Court has a discretion to grant an extension of time. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act. 48 The main three matters that need to be taken into account are: · the explanation of the delay; · any prejudice to the respondent; and · whether the applicant has an arguable case. 49 I should say that during the hearing, Ms Bahonko submitted that leave to file out of time had been impliedly given or was no longer required. She referred a number of factors, including the amount of time that had elapsed since filing the proceeding, the number of interlocutory steps that have occurred, that the Court is not bound by technicalities in human rights proceedings by virtue of s 46PR of the HREOC Act, and that she will suffer prejudice if her application is refused. She submitted as follows: …the extension is not at issue any more. The extension of time has been resolved [by] the manner, the defendant proceed in this proceeding, by the manner the proceeding been handled and by the development and the process itself and it is quite fanciful and an abuse of the process, inappropriate legally at the moment, after a year the proceeding were in process to bring back something which has been basically dealt with, in real term by the process itself and has been resolved. 50 However, it was always clear that the matter of the necessity for leave remained an issue. The way in which the proceeding has run its course has been a result of the number of interlocutory applications brought by all the parties which required consideration by the Court. No interlocutory application involved or proceeded on the basis that the issue of leave to file out of time was resolved in favour of Ms Bahonko. There can be no suggestion of waiver or abandonment by virtue of the conduct of the respondents to lead to the view that the extension of time issue need not be determined by me or that it did not remain a live issue for decision. Further, there is no basis to suggest that s 46PR is applicable to issues going to jurisdiction so as to permit me to consider the application for leave otherwise than in accordance with the principles set out above: see Bahonko v RMIT [2006] FCA 1325 at [20] and [70]. Further, there can be no prejudice to Ms Bahonko, as the applications for summary dismissal, which were also before me, required consideration of the merits of the case, and therefore she was anticipating having to deal with the question of the merits of her complaints, and was given ample opportunity to do so.
The reason for the delay 51 The period of delay is not a significant one. Ms Bahonko explained that she had been involved in a motor vehicle accident on 11 April 2006 and was still ill from the time the Commission gave her notice of the termination of the complaint on 1 June 2006. She submitted a number of medical certificates which stated she was unfit to work because of the accident from 11 April 2006 to 17 July 2006. 52 On the basis of those certificates, I accept that Ms Bahonko was ill at the time she received notification of the complaint until 17 June 2006. I note that the delay in filing her proceeding is relatively short, and I consider her excuse is acceptable in the circumstances.
Prejudice to the respondents 53 The prejudice claimed by the respondents constituted wasted costs and vexation in defending the proceedings, which they claim are without merit. There is no specific evidence of prejudice because of the delay, and I will continue on the basis that there is no relevant prejudice to the respondents other than that the respondents were entitled to have the matter finalised within 28 days after the notice of termination was issued. I note, however, that absence of prejudice is not sufficient to allow an extension of time.
Submissions on the merits of the case 54 In these circumstances, whether or not an extension will be granted depends upon whether any of Ms Bahonko's claims can be said to be arguable. It is useful to first set out the parties' submissions in relation to the merits of the case.
The NBV's submissions 55 As a preliminary matter, the NBV sought to strike out those paragraphs of Ms Bahonko's evidence that makes allegations broader than the complaint as terminated by the Commission, so far as it relates to the NBV. The NBV claimed that the complaint only concerned its decision of 24 May 2004 and its decision of 14 October 2004. 56 The NBV opposed the grant of an extension of time on the basis that her claims are hopeless. The NBV submitted that its investigations of the professional complaints made against Ms Bahonko were entirely proper. Under s 22(1) of the Nurses Act 1993 (Vic) ('the Nurses Act'), the NBV was obliged to investigate any complaints about the professional conduct of a registered nurse which is about professional conduct. In order for the NBV to decide whether it was necessary to conduct a formal or informal hearing into the complaint, it must conduct a preliminary investigation: see s 22(2) of the Nurses Act. 57 The NBV submitted that there is no evidence that any of Ms Riley, Ms Turnbull or the police officers involved in the incident on 6 May 2004 were employed by, servants of, agents of or "protected by" the NBV. Whilst the NBV does not accept that any of the allegations against the conduct of those people was discriminatory in any way, it submitted that, in any event, the conduct occurred prior to, and without, the involvement of the NBV. 58 The NBV further submitted that its decision to suspend Ms Bahonko's registration pending the outcome of the investigations was a proper exercise of its power. Section 25 of the Nurses Act gives the NBV power, after making a determination to conduct a preliminary investigation about the professional conduct of a registered nurse, to suspend the registration of the nurse until any hearing into the matter is completed, provided the NBV is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered. The NBV submitted that there is no evidence to suggest that it exercised its power other than for the purposes contemplated by the Nurses Act, and certainly not on any discriminatory grounds. 59 The NBV submitted that there was nothing unlawful about the NBV's subsequent decision on 14 October 2004 to impose conditions on Ms Bahonko's registration. Under s 48 of the Nurses Act, an appointed panel may, after considering all submissions made at the formal hearing into the professional conduct of a nurse, make a finding that the nurse has engaged in unprofessional conduct of a serious nature and may, among other things, cancel the nurse's registration or impose conditions, limitations or restrictions on the registration of a nurse. The NBV's decision to impose various conditions on Ms Bahonko was made after a formal hearing on 27 September 2004, which Ms Bahonko chose not to attend. It was submitted that there is no evidence to suggest that the NBV's decision on 14 October 2004 was made on any unlawful discriminatory ground. 60 The NBV submitted that, even if Ms Bahonko's allegations against its conduct in the investigations are well-founded (which it does not accept), those allegations do not demonstrate that those decisions were made on any ground of unlawful discrimination.
The Minister's submissions 61 The Minister adopted the NBV's submissions in so far as they were relevant to the claims made against the Minister, Ms Bahonko's application for an extension of time and the Minister's application for summary judgment. 62 The Minister submitted that Ms Bahonko's material does not reveal how she could make a credible claim that the Minister discriminated against her. 63 The Minister referred to the decision of Weinberg J concerning a discrimination proceeding brought by Ms Bahonko against the Royal Melbourne Institute of Technology ('RMIT') and others: see Bahonko v RMIT [2006] FCA 1325. In that case, his Honour was similarly faced with an application for an extension of time, as Ms Bahonko had filed out of time, and an application for summary judgment made by one of the respondents. After his Honour considered the various claims, he refused to grant Ms Bahonko an extension of time, concluding in relation to the claims against RMIT as follows (at [86]): It would be quite wrong, in my view, to grant an extension of time in circumstances where there is a paucity of material to support claims of unlawful discrimination which are cast in sweeping, unparticularised and seemingly exaggerated terms. It is clear that the Commission acted correctly in terminating her complaints, having regard to the material that Ms Bahonko placed before it. The additional material placed before this Court in support of her application for review of the Commission's decision takes her case no further. 64 The Minister submitted that Ms Bahonko's material against the Minister was similarly sweeping, unparticularised and exaggerated and that the Commission was right to terminate and finalise her complaints against the Minister on the basis of the material before it. It was submitted that the additional material placed before this Court takes her case no further. In the alternative, it was submitted that if the material does take the case further, it is not the same or substantially the same as those in her complaints, and is therefore outside the scope of review by this Court under s 46PO(3). 65 The Minister submitted that the Court has no jurisdiction to hear Ms Bahonko's complaints in relation to religious and political opinions and relied upon Bahonko v RMIT [2006] FCA at [70] to [71] per Weinberg J. 66 In relation to discrimination on the grounds of race and disability, it was submitted that Ms Bahonko made no identifiable or substantiated allegations capable of falling within the various provisions of the RDA and the DDA, and on this basis, the application should be summarily dismissed. The Minister submitted that the Commission was correct in terminating Ms Bahonko's complaint against the Minister, and referred to the following finding of the Commission: I note that you have listed [the Minister for Health] as a respondent to your complaint. Whilst the Department of Human Services has portfolio responsibility for the NBV, you have provided no evidence to suggest that [the Minister for Health] had any direct role in the NBV's decisions about your registration. 67 In relation to the vicarious liability claim, the Minister referred to some key provisions of relevant legislation. The NBV was established pursuant to s 65(1) of the Nurses Act. It is a body corporate, and pursuant to s 65(2)(c), it could sue and be sued in its own name. Pursuant to s 67, the NBV consisted of 12 members nominated by the Minister and appointed by the Governor in Council. The NBV's powers, functions and consultation requirements were generally set out in s 66 of the Nurses Act. As mentioned above, it had power to suspend the registration of a nurse during the conduct of an investigation into his or her professional conduct and to make a determination to place conditions on the registration of a nurse following a formal hearing: see respectively ss 25(1)(a) and 49(2)(a). By operation of s 51 of the Nurses Act and s 21A of the Evidence Act 1958 (Vic), at a formal hearing, the members of an appointed panel had the same privileges and immunities in relation to their acts as if they were done in action in the Supreme Court of Victoria. Whilst s 66(3) of the Nurses Act provided that the NBV must consult with the Minister and have regard to her advice in carrying out its functions and exercising its powers, its decisions were its own. Given the application of s 21A of the Evidence Act 1958 (Vic), this is particularly the case when the NBV was acting in a formal hearing. 68 Ms Bahonko claimed the Minister had vicarious liability pursuant to s 18A of the RDA. Section 18A relevantly provides: (1) Subject to subsection (2) if: (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and (b) the act would be unlawful under this Part if it were done by that person; This Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. 69 It was submitted by the Minister that this section is confined to the acts of agents and employees, and accordingly Ms Bahonko's claim that the Minister is vicariously liable for acts of the NBV is without any basis. It was submitted that the NBV is plainly not the employee or agent of the Minister. The Minister was not said, in the Nurses Act, to be the NBV's employer. The fact that the Minister had certain statutory functions in relation to the NBV does not make her liable for the actions of it. The Minister relied upon the decision of Weinberg J in Bahonko v RMIT [2006] FCA at [77] to [83] where he dismissed similar allegations against the Minister for Education and Training. His Honour specifically stated that s 18A of the RDA was confined to the acts of agents and employees and that the RMIT was not an employee or agent of the Minister for Education and Training even though the RMIT too was a body corporate whose members were appointed by the relevant Minister and in relation to which that Minister had a number of statutory functions. 70 Accordingly, the Minister submitted that the applicant had no reasonable prospects of success.
Ms Bahonko's submissions 71 Ms Bahonko submitted that her claims are meritorious and the matter ought to proceed to trial. Ms Bahonko claimed the respondents have engaged in unlawful conduct contrary to the RDA, the DDA and the HREOC Act. 72 Ms Bahonko's primary claim was that the actions of the NBV in its decision to suspend her registration, investigate Ms Bahonko's alleged professional misconduct, and ultimately impose conditions on Ms Bahonko's nursing registration, were based on her race, descent, national or ethnic origin, political opinions and actions, religious beliefs and imputed disabilities and had the unlawful purpose or effect of nullifying her enjoyment of certain rights, and thus constituted unlawful discrimination under the RDA, DDA and HREOC Act. 73 In particular, Ms Bahonko claimed that the conditions and restrictions imposed by the NBV on her registration as a nurse contravened s 9(1) and 9(1A) of the RDA in that she was subject to less favourable treatment on the basis of her "race". Ms Bahonko submitted that the meaning of "race" included an implied meaning of moral choice, values and consciousness, rather than referring to the colour of her skin or geographical origin. On this implied meaning, Ms Bahonko claimed the NBV and all other persons involved belong to a "master race" of "moral perversion", to which Ms Bahonko does not belong. Rather, it was submitted, Ms Bahonko belonged to the race with "the orientation to good and truth". 74 Ms Bahonko submitted that the NBV's treatment of the complaints made against Ms Bahonko, in particular its decision to suspend her registration whilst investigating the claims and subsequently impose conditions upon her registration was a manifestation of discrimination on the basis of Ms Bahonko not belonging to the "master race". 75 Ms Bahonko also claimed that the use of the language the NBV adopted in its written determination of 14 October 2004 demonstrated its perceived racial superiority. Ms Bahonko submitted that the Panel's use of the word "superiors" in that determination demonstrated discrimination against her, implying she was from an inferior race. 76 In support of her claim for racial discrimination, Ms Bahonko described the nature of the respondents' actions as "systematic, systemic and increasing in viciousness". She submitted that the "moral perverts" have a "large and powerful Network of supporters in the most crucial social institutions; they have their own lawyers, Ministers and Government officials". She submitted that the purposes of the alleged discriminatory acts of the respondents and other parties were to nullify her rights. In this regard, she stated that the "nature of the [respondents'] actions is clearly racially motivated as it is longitudinal and has consequences of racial nullifications of me in all spheres of my life". She submitted that the respondents and the State of Victoria engaged in their actions "to cover up for and protect the primary offenders from criminal accountability" in relation to the incident at Moorfields on 6 May 2004. She submitted that those offenders belong to the "master race", which is the same racial make-up as the Minister and the CEO of the NBV and the police officers involved in the incident on 6 May 2004. 77 Ms Bahonko claimed that all the instances in which she has been involved are linked. As submitted by Ms Bahonko: The Respondents…took part in the commission of a larger, racially motivated crime and circle of violence initiated at the Uniting Church Aged Care facilities in 2003, culminating in a vicious assault and tortures at Moorfields on 6 May 2004 and carried out in a systematic and systemic way for over the last 2 years by the institutions and individuals, some of them under direct responsibilities of the Respondents in those matters (for example doctors and nurses). 78 She further claimed the respondents placed "unreasonable demands and conditions" upon her professional practice and in her role as a registered nurse. In particular, Ms Bahonko referred to the Moorfields policy of withholding medication or treatment in circumstances where a patient has so requested, which she claims is "inhumane". 79 She submitted that the NBV's handling of the investigation was in "bad faith and on behalf of the perpetrators with intentions to perverse the course of justice". She claimed the NBV showed "extreme malice" and the investigation was "flawed and tinted". Ms Bahonko was particularly concerned with the NBV's willingness to accept the accuracy of all complaints made against her, despite her objections that the complaints made by Ms Riley were "vexatious, malicious, frivolous and fictitious". She claimed that there was demonstrated bias in the NBV suspending only her registration and not the complainant's registration. 80 Ms Bahonko also submitted that the NBV's subsequent handling of the matter and in particular, its conduct in these proceedings through its lawyers, strengthens the pattern of behaviour which is to unfairly discriminate against Ms Bahonko and deny her all rights. In addition, she pointed to being denied in 2004 assistance under the Victims of Crime Assistance Act 1996 (Vic) and the hearing of an alleged assault in the Magistrates Court. She alleged that the NBV and the Minister wilfully took part in the commission of crimes and their behaviour subsequent amounts to protection of the primary offenders. 81 Ms Bahonko also claimed that the NBV (amongst others) contravened s 17 of the RDA by inciting acts that are unlawful under the RDA. Ms Bahonko referred to the NBV "inciting judiciaries to psychological abuses in the face of the law". Ms Bahonko also referred to government solicitors interfering with all her proceedings, and claimed that such interference constitutes contempt of the Court. Ms Bahonko submitted the VCAT proceedings were corrupted and that the actions of the Victorian Government Solicitors on behalf of the NBV in seeking to strike out the application was "fraudulent" and "highly discriminatory" and part of a pattern of behaviour. 82 Ms Bahonko, in claiming that the NBV had engaged in a campaign of racial vilifications and defamations against the applicant, pointed to the following publications:
Scope of the proceeding 90 I accept the respondents' submissions that in so far as Ms Bahonko alleged that the respondents discriminated against her on the basis of her political opinions and religious beliefs, those claims are not within the jurisdiction of this Court in this proceeding. Jurisdiction is not a mere technicality or matter of legal form to which s 46PR of the HREOC Act can apply: see Bahonko v RMIT [2006] FCA at 70 per Weinberg J. 91 As mentioned above, in relation to Ms Bahonko's complaint of discrimination on the grounds of religion and political opinions filed with the Commission, the Commission decided not to continue to inquire into the alleged acts or practices because, pursuant to s 32(3)(c)(ii), the allegations were lacking in substance. The Commission stated that this aspect of the claim was finalised and if Ms Bahonko disagreed with its decision on this aspect, she may apply for review of the decision by this Court or the Federal Magistrates Court under the ADJR Act. No application before me on this basis was brought or pursued. The application before me is pursuant to s 46PO of the HREOC Act. 92 However, assuming in favour of Ms Bahonko that the descent and ethnic origin grounds are substantially the same as the race and disability grounds alleged in the complaint, it appears that the grounds set out in the application other than religious belief and political opinions are within the jurisdiction of the Court and the merits must be considered. 93 I do not consider it appropriate to strike out those paragraphs of Ms Bahonko's material that goes beyond the decisions of the NBV on 24 May 2004 and 14 October 2004, for which the NBV contended. The argument was based on the requirement in s 46PO(3) that the unlawful discrimination alleged in an application in this Court must: · be the same as, or the same in substance as, the unlawful discrimination the subject of the terminated complaint; or · arise out of the same, or substantially the same, acts or practices that were the subject of the terminated complaint. 94 Therefore, whilst the original complaint was somewhat limited in the incidents referred to, it may be that the additional material can assist in demonstrating a pattern of behaviour or practice. It is clear that one key aspect of Ms Bahonko's claims is that all the events are connected and demonstrate a web of discrimination and she attempts to draw conclusions about the specific decisions of the NBV the subject of the complaint by reference to other material. 95 In relation to Ms Bahonko's submissions on the Equal Opportunity Act 1995 (Vic), it must be noted that Ms Bahonko does not seek any relief in her application under that Act. Therefore, even if the Court had jurisdiction to hear a matter arising under that Act, no such matter arises in this proceeding against the NBV or the Minister. There is certainly no evidence that the procedures required to be followed in that Act were followed. Ms Bahonko did not file a complaint with the Commission (as that term is defined in that Act) or that such complaint was referred to VCAT. Further, and in any event, this Court has no jurisdiction to review a decision of the Commission (as defined in that Act) or VCAT, which is properly the subject of the jurisdiction of the Supreme Court of Victoria: see s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic);s 211 of the Equal Opportunity Act 1995 (Vic); and Scherbakova v Royal Melbourne Institute of Technology [2000] FCA 1566 per Weinberg J. 96 Accordingly, I consider the complaints relevant to Ms Bahonko's application to extend time are those relating to discrimination on the basis of race, descent, ethnic origin and imputed disability under the RDA and the DDA, and I will consider these on the basis of all the material put forward concerning such discrimination.
The claims against the NBV 97 In order to properly consider Ms Bahonko's claims, it is necessary to set out s 9 of the RDA, which prohibits unlawful racial discrimination in the following terms: It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. 98 Further, s 9(1A) of the RDA prohibits indirect racial discrimination by providing that certain conduct amounts to an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin, as proscribed under s 9(1). Section 9(1A) relevantly provides that the following conduct amounts to such an act: Where: (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. 99 At its highest, I take Ms Bahonko's allegation of direct discrimination under s 9(1) of the RDA to be that the acts of the NBV constituted by its: (a) decision to investigate the complaints made against Ms Bahonko, (b) decision to suspend Ms Bahonko's nursing registration pending the outcome of the investigation, and (c) decision to impose restrictions on Ms Bahonko's nursing registration, were unlawful as such acts were based on her not belonging to the "master race" or "superior race", and had the requisite unlawful purpose or effect. 100 I take Ms Bahonko's allegation of indirect racial discrimination to be that the NBV's decision to impose restrictions on Ms Bahonko's nursing registration constituted conduct described under s 9(1A) and was unlawful as such conduct had the requisite unlawful purpose or effect under s 9(1). 101 Putting aside the correctness of Ms Bahonko's premise that "race" as provided for in the RDA includes a distinction between a so-called "master race" or "evil people" and those who do not belong to such a race, there is simply no evidence to suggest that the NBV's decision to investigate the complaints made against Ms Bahonko was done on the basis of her race, colour, descent or national or ethnic origin. Section 22(1) of the Nurses Act required the NBV to investigate any complaint about the professional conduct of a registered nurse. Section 22(2) required the NBV to conduct a preliminary investigation in order to determine whether or not a formal hearing should be held. Whilst I understand that Ms Bahonko was displeased with the NBV's decision, there is no evidence to suggest that it was based upon race, color, descent or national or ethnic origin. In this regard, I agree with the Commission's decision to dismiss Ms Bahonko's claims, on the basis that she had "not provided any evidence to suggest that the [NBV] treated [Ms Bahonko] less favourably than it would have treated a person without [Ms Bahonko's] disability or who was of a different racial background about whom it had received complaints". It is certainly not sufficient evidence of racial discrimination that Ms Bahonko is of a different "racial makeup" to members of the NBV. 102 Furthermore, other than bald assertions, there is no evidence to suggest that the NBV's decision to suspend Ms Bahonko's registration was done on any unlawful discriminatory ground. As set out in the NBV's submissions, there is no doubt that the NBV had the power, under s 25 of the Nurses Act, to suspend the registration of a nurse. There is no evidence to suggest that the exercise of that power was done for any reason outside the contemplated purposes of the Nurses Act, let alone for a discriminatory reason. There is nothing in the material to suggest that Ms Bahonko was treated less favourably than other nurses against whom investigations have been commenced although I note that it was the first time the NBV exercised the power. However there is nothing to suggest that it was on the basis of Ms Bahonko's race, colour, descent or national or ethnic origin. 103 Similarly in relation to Ms Bahonko's complaint against the NBV about its decision to impose conditions, there is no evidence that the decision was made on any unlawful discriminatory ground. As was submitted by the NBV, it had power under the Nurses Act to impose conditions on the registration of a nurse, and there is nothing to suggest that its decision to exercise that power was in any way an act done on the basis of Ms Bahonko's race, colour, descent or national or ethnic origin. On the contrary, the evidence suggests that, after holding a formal hearing into the complaints made against Ms Bahonko's professional conduct, the NBV-appointed Panel took an informed view, and made its decision on the basis of the evidence before it. The Panel gave reasons for accepting or rejecting certain evidence, and on a detailed review of its statements, I can find no basis for accepting Ms Bahonko's allegations. 104 In relation to the claim for indirect discrimination, the conditions imposed seem to be reasonable given the nature of the alleged professional misconduct, but in any event there is no evidence to suggest that in the circumstances, they were unreasonable. Further, there is no evidence that the conditions were made for the purpose or had the effect of impairing any of Ms Bahonko's enjoyment of certain rights compared with people of a different racial background upon whom the same restrictions or conditions were placed. The conditions were simply made on the basis of investigations into her professional conduct and do not single her out on the basis of her race. There is no credible claim on this basis. 105 The NBV's findings against Ms Bahonko, whilst clearly unfavourable to her, are not on any proper view based upon her race, colour, descent or national or ethnic origin. The findings of the NBV relate to her conduct professionally and in my view the NBV gave lawful reasons to justify its findings. I find no warrant on the material before me to go behind these reasons. If there was some material other than bald assertions to suspect that the reasons given were not given bona fide or were not the true reasons for the decision, then the court would be entitled to form a view which is not constrained by these reasons. This is not the case before me. 106 It is unnecessary for me to consider Ms Bahonko's numerous submissions about the alleged purposes and effects of the NBV's conduct, as she has not satisfied me on the first aspect of unlawful discrimination, that the NBV has done any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin. In particular, I refer to Ms Bahonko's claims that the purposes of the NBV's conduct were to nullify her rights in all spheres of her life and cover up for alleged criminal conduct connected to the incident on 6 May 2004. In any event, there is no foundation in the evidence to support Ms Bahonko's contention that the NBV and others were involved in a web of conduct to nullify all her rights. 107 I should mention that I do not accept Ms Bahonko's claim that the NBV's use of the word "superiors" constitutes or evidences unlawful discrimination. There is no basis to support the view that the use of the term meant anything other than professional superiors. That word is commonly used in a professional context to refer to a person's boss or manager. 108 In relation to Ms Bahonko's claim under s 17 of the RDA, there is no evidential basis to support such a claim. Section 17 provides: It is unlawful for a person: (a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or (b) to assist or promote whether by financial assistance or otherwise the doing of such an act. 109 To the extent that her claim relates to the NBV inciting or assisting others to do any unlawful acts, the claim is without foundation. There is no evidence to support such a claim. The two publications to which Ms Bahonko referred that were published by the NBV, which I have set out above, do not provide any evidence that the NBV has contravened s 17. The other article relied upon by Ms Bahonko was written by a VCAT reporter, who is not properly the subject of this claim and, in any event, cannot on any view fall within the ambit of s 17. 110 To the extent that her claim relates to the NBV's solicitors inciting judiciaries to do unlawful acts, the claim is similarly without any evidential foundation. There is no evidence, other than mere assertion, that the NBV's solicitors have incited the doing of any unlawful acts, and to suggest that their mere involvement in these proceedings constitutes a contravention of s 17 is not tenable. 111 In relation to Ms Bahonko's claims of discrimination on the basis of disability, she made reference to ss 5 and 6 of the DDA which merely define direct and indirect discrimination. No basis was suggested leading to the conclusion that there was any unlawful discrimination, and other than general assertion, no evidence was adduced specifically in relation to any unlawful discrimination. 112 Ms Bahonko's claim that the NBV contravened s 42 of the DDA is similarly without foundation. Section 42(1) makes it an offence for a person to commit an act of victimisation. Section 42(2) provides that a person is taken to have committed an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that, relevantly, the other person has brought proceedings under the DDA or the HREOC Act against any person. There is simply no evidence before me to support this claim. It is not enough for Ms Bahonko to show that she has suffered detriment as a result of the guardianship applications. She must show the NBV caused, or threatened to cause, such detriment on the grounds that Ms Bahonko brought this proceeding. There is no evidence which demonstrates such a causal connection on the part of the NBV and this claim is without merit. 113 In view of the above reasons, I would not grant Ms Bahonko further time to institute the proceeding against the NBV.
The claims against the Minister 114 To the extent that the claims against the NBV relate to the claims against the Minister, my reasons set out above apply. Further, to the extent that other matters are alleged against the Minister, the allegations involve no particularisation, and are put in wide and exaggerated terms. No evidence is properly adduced to support these claims. 115 Ms Bahonko also claimed that the Minister was vicariously liable under s 18A of the RDA for the conduct of the NBV. In so far as this claim depends upon establishing that the NBV was responsible for unlawful discrimination, the claim must fail. As I have found that there is no evidence to support a claim that the conduct of the NBV amounts to unlawful discrimination, the Minister cannot be liable for anything the NBV did or did not do. 116 In any event, I accept the Minister's submissions that the Minister's role in relation to the NBV was limited, in the same way Weinberg J found the role of the Minister for Education and Training was limited in Bahonko v RMIT [2006] FCA 1325. The Minister was not directly involved in the decisions and conduct of the NBV, but rather the NBV was constituted as a distinct and separate body under the Nurses Act and its decisions were its own. 117 Further, and in any event, s 18A is confined to the acts of agents and employees which, as the Minister submitted, does not extend to the NBV, as the NBV is not an employee or agent of the Minister. True it is that the Minister appoints NBV members, but this does not make the Minister liable for actions of the NBV in relation to investigating professional conduct of nurses and imposing conditions on nurses' registrations: see also Bahonko v RMIT [2006] FCA 1325 at 78. 118 Similarly, Ms Bahonko's claim that the Minister contravened s 122 of the DDA depended upon my finding that the NBV contravened s 42 of the DDA. On the basis of my finding above that there is no evidence to suggest that the NBV contravened s 42, this claim is without merit. 119 I accept the Minister's submissions that Ms Bahonko did not make any credible claim against the Minister, and refuse her application for an extension of time to bring proceedings against the Minister.
Claims against others persons 120 In relation to the alleged discrimination of Ms Riley, Ms Turnbull and the police officers involved in the incident on 6 May 2004, I consider these allegations are misconceived. There is nothing to suggest that these people were employed by, servants of, or agents of, or "protected by", the NBV and accordingly their conduct is not properly the subject of these proceedings. There is no evidence that any of those persons' conduct was discriminatory, and in any event, such conduct occurred prior to and without the involvement of the NBV. Nor am I of the view that there is any evidence to suggest that the NBV or the Minister sanctioned the behaviour of Ms Turnbull and Ms Riley. There is simply no evidence to support these allegations. 121 In relation to the claims against other people related to the NBV, in particular the NBV's solicitors and counsel, there is no evidence that any of these persons' conduct was unlawful under the RDA or the DDA. Other than a number of bald assertions and accusations, there is nothing to support her contention that there is a conspiracy between all persons involved. 122 By way of example, Ms Bahonko pointed to the NBV's solicitors' application to strike out Ms Bahonko's claim in VCAT. By letter dated 30 July 2004 from Russell Kennedy on behalf of the NBV to Ms Bahonko, it was stated that the NBV applied to strike out Ms Bahonko's application in VCAT on the basis that it was misconceived. In particular, it was stated that, in their view "VCAT does not have jurisdiction to hear the application for review in this instance, as a decision of the Board to suspend registration is only reviewable by VCAT when the Board has not instituted an investigation within a reasonable time of having suspended the registration". There is nothing in this correspondence or their actions to support the contention made by the applicant against the NBV's solicitors. Ms Bahonko has attempted to relate by mere assertion all incidents which do not go in her favour, and conclude that the behaviour is somehow orchestrated by the NBV on discriminatory grounds. However there is no evidence to support the alleged links and no merit to these general allegations.
Remaining issues 123 I deal now with some remaining issues.
Applications for summary dismissal 124 On the basis of the view I have taken above in relation to the merits of the case, I would, had it been necessary to do so, summarily dismiss the proceedings pursuant to s 31A of the Federal Court Act. Under this provision, the respondents do not need to show that the applicant's case is hopeless - it is sufficient that there is no reasonable prospect of the applicant succeeding in the proceeding. The lack of substantive material from Ms Bahonko, and the material provided by the NBV, demonstrates that there is no reasonable prospect of Ms Bahonko succeeding at trial either against the NBV or the Minister.
Abuse of process 125 Further, and in any event, the application is an abuse of process, because it is foredoomed to fail: see Walton v Gardiner (1993) 177 CLR 378 at 393. Whilst Ms Bahonko is certainly aggrieved by a sequence of circumstances, I can find no basis to support any allegation of unlawful discrimination, and the respondents should not be further vexed by unjustifiable proceedings and forced to incur unnecessary costs.
Ms Saunders' conduct 126 Ms Bahonko's claims against Ms Saunders' conduct at the directions hearing on 1 September 2006 before Ryan J are misconceived. There is no evidence to suggest that Ms Saunders has been involved in "deception/fraud" or "obstruction of justice, trickery, frauds, making false statements" on 1 September 2006. There is nothing to suggest that the actions of Ms Saunders were taken other than in the interests of her client and in accordance with her duties to the Court. Accordingly, the orders sought should not be made and the motion will be dismissed.
Contempt of Court 127 Ms Bahonko made allegations of contempt of this Court against the NBV, the Minister, the Victorian Government Solicitors, Russell Kennedy and Dr Entwisle by way of various motions. She also filed a notice of motion dated 28 May 2007 with an accompanying statement of charge. Her claims focused on their involvement generally in these proceedings, including the bringing of the summary dismissal applications, their management of the evidence in this proceeding, their perceived conflicts of interest, and their applications seeking to appoint a guardian. The crux of her submission was that their behaviour amounted to protection of the primary offenders, and was generally misleading to the Court. 128 I can see no basis for making any such orders. Ms Bahonko has failed to raise any clear allegation of contempt against the various persons, and Ms Bahonko has not sought to raise any contempt in the proper manner. The statement of charge accompanying her motion, notice of which is dated 28 May 2007, is inadequately particularised, vague and should be dismissed. Further, the evidence before the Court does not disclose any proper basis for the Court of its own motion instituting contempt proceedings.
Criminal jurisdiction 129 As to the extension of the jurisdiction of this Court, I know of no basis upon which I can extend the jurisdiction of this Court to include criminal jurisdiction: see also Bahonko v Sterjov [2007] FCA 115 at [17] per Jessup J. Therefore, to the extent that application is made seeking to pursue such orders, it should be dismissed.
Constitutional matter 130 The applicant gave notice pursuant to s 78B of the Judiciary Act 1903 (Cth) that this proceeding involved a constitutional matter arising under the Constitution or involving its interpretation. The relevant notice was given by Ms Bahonko to the Attorneys-General of the Commonwealth and of the States, but none of the Attorneys-General made any submissions to the Court. 131 The notice of a constitutional matter, filed with the Court on 17 May 2007, does not provide much indication of the nature of the alleged constitutional matter, save from mentioning s 117 of the Constitution. In the notice, Ms Bahonko made a number of assertions, none of which amount to any proper issue arising under the Constitution or a matter involving its interpretation. Instead, she rehearsed the facts and made a number of bald assertions. There is simply no material to support any claim that any provision of the Constitution has been breached in the way asserted by Ms Bahonko.
Application for leave to appeal from the directions of Ryan J 132 In view of my above conclusions, this issue is no longer of importance. However in view of the applicant's submissions on this question, I will deal with it independently. 133 The applicant's motion, notice of which was dated 3 October 2006, sought leave to apply out of time for leave to appeal from the interlocutory orders made by Ryan J setting a timetable for the filing of notices of motion for summary disposal of the proceedings by the respondents. Ms Bahonko submitted that such leave was given in her absence and ought to be set aside. The complaint is not so much directed to the timetabling in itself, but in Ryan J giving leave for the application itself to be made by the respondents and it having been made in her absence. 134 The orders made by Ryan J were in effect only timetabling directions. No leave was actually required to bring the applications in themselves. His Honour was effectively setting down a time within which applications ought to be filed and served in accordance with case management principles. Whilst the orders may be read as giving leave to bring the applications, the true purpose was to put a limitation upon the timing of their filing and serving. No natural justice issue arises in these circumstances where in fact it is the respondents that have had a limitation placed upon them in which to bring their applications for summary dismissal. There is no basis to set aside the orders made by Ryan J, being orders made in the proper exercise of his discretion. 135 Further, contrary to Ms Bahonko's argument, it is not improper for a party to a proceeding to apply for summary judgment of a matter which, in their view, has no prospects of success. This is a mechanism provided for in the Rulesto protect the interests of defending parties in litigation. Accordingly, I would dismiss Ms Bahonko's motion, notice of which was given on 3 October 2006.
Joinder of the State of Victoria 136 Although Ms Bahonko's complaint to the Commission did name the "Victorian Government", the actual complaints focused on the NBV and the Minster. In this proceeding, the specific complaints against the State of Victoria seem to be limited to general and broad allegations of involvement, at most by way of oversight of the alleged discriminatory conduct. However, the evidence does not come close to establishing that the State of Victoria is a necessary or proper party to the proceedings, or that the State of Victoria (through the "Victorian Government") undertook the behaviour complained of by Ms Bahonko.
Joinder of this proceeding with proceeding number VID 828/06 137 On the basis of my refusing leave to file out of time, an order of this sort seeking to join this proceeding with proceeding number VID 828/06 would be inappropriate and unnecessary in the circumstances. In any event, proceeding number VID 828/06 has now been finalised in this Court and a special leave application is apparently waiting to be heard by the High Court. Accordingly, proceeding number VID 828/06 is no longer relevantly available to be joined with this proceeding.
Urgent monetary relief 138 Finally, in view of my conclusions, there is no basis to grant urgent or any monetary relief in the circumstances claimed by Ms Bahonko.
Conclusion 139 In light of the reasons above, I would propose to order that the applicant's application for leave to file her application and claim out of time be dismissed. All other motions of Ms Bahonko filed in this proceeding should also be dismissed. I will hear the parties as to costs.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the First Respondent: Russell Kennedy
Solicitor for the Second Respondent: Victorian Government Solicitor
Date of Hearing: 31 May, 1 June, 18 June 2007
Date of Judgment: 14 September 2007
Bahonko
Nurses Board of Victoria
[2004] VCAT 1663
[2005] HCATrans 864
(1984) 3 FCR 344
(1993) 177 CLR 378