Bahonko v Nurses Board of Victoria

The proceedings 12 On 21 July 2006 the applicant applied to this Court seeking injunctive relief and aggravated damages, pursuant to s 46PO of the Human Rights Act. Section 46PO(1) provides that: If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. 13 Since the commencement of the proceedings, a number of interlocutory applications (which I will refer to as the initial interlocutory applications) have been made, which became ready for hearing before me on 28 November 2006. The initial interlocutory applications were as follows: (a) the Nurses Board sought orders that the applicant be refused leave to extend time for the initiation of the proceedings or alternatively summary disposal of the proceedings; (b) the applicant sought an extension of time in which she may initiate the proceedings; (c) the applicant sought leave to appeal directions made on 1 September 2006; and (d) the applicant sought to join the State of Victoria to the proceedings as a respondent. 14 However, prior to the hearing of the initial interlocutory applications, by notice of motion dated 22 September 2006 ('the September Notice'), the applicant sought, among other things, an order that Ms Dominque Saunders, a solicitor in the employ of Russell Kennedy, the solicitors on the record representing the Nurses Board: be removed from the case due to a conflict of interest and past unlawful dealings in relation to applicant and the fact that applicant lodged criminal complaints against her in the Court of Law and that applicant is the victim of her moral perversion and lack of professional ethics, applicant has been traumatised by Ms Saunders in the past and applicant does not have to be subjected nor force to deal with her abusers. The September Notice also sought orders that Ms Saunders "be held to account for deception/fraud committed on 01/09/06" and "be held accountable for the obstruction of justice, trickery, frauds making false statements". Ms Saunders is not a respondent to the proceedings, and has not been sought to be made a respondent. 15 At the first return of the September Notice on 6 October 2006, the applicant made an oral application to the Court seeking an order to the effect that Dr Hanscombe SC be removed from the case due to alleged conflict of interest and "criminal complaints". Dr Hanscombe SC was retained to appear for the Nurses Board in the proceeding. The applicant also made an oral application for an order that any person who has previously worked on matters concerning the applicant be removed from the case due to alleged conflict of interest and criminal complaints. Other than Dr Hanscombe SC and Ms Saunders, those persons were not then identified. I will refer to these applications (including the application made in the September Notice) as the removal applications. Neither Dr Hanscombe SC nor Ms Saunders has participated in the removal applications, although Ms Saunders still remains in the employ of Russell Kennedy. The Nurses Board does not now intend to retain Dr Hanscombe SC in this proceeding, although it does intend to retain Russell Kennedy to represent it in the proceedings, and to involve Ms Saunders. 16 On 6 October 2006, the Court made directions for the filing of any further material by the applicant and respondents, and adjourned the hearing of the initial interlocutory applications until 28 November 2006. However, it was anticipated that, depending on the material filed pursuant to the court directions, it may be necessary to further adjourn the hearing of the initial interlocutory applications pending the hearing and determination of the removal applications. 17 Two further applications were then made to the Court. The first respondent by notice of motion dated 14 November 2006 sought the following orders: 1. The applicant's Notice of Motion dated 22 September 2006 insofar as it expressly relates to Ms Dominique Saunders (being the second paragraph 1, 2 and 3 of that Notice of Motion) be heard forthwith on 20 November 2006 and dismissed. 2. The applicant's oral motion made to the Court on 6 October 2006 seeking orders to the effect that Dr K P Hanscombe SC be removed from the case due to alleged conflict of interest and criminal complaints be heard forthwith on 20 November 2006 and dismissed. 3. The applicant's oral motion made to the Court on 6 October 2006 seeking orders to the effect that any persons who have previously worked on matters concerning the applicant be removed from the case due to alleged conflict of interest and criminal complaints be heard forthwith on 20 November 2006 and dismissed. 4. The applicant pay the first respondent's costs of this notice of motion and those parts of the motions dismissed by reason of the orders above. 18 The applicant then sought by notice of motion dated 17 November 2006 the following orders: 1. Dr K P Hanscombe SC is to cease acting in the matter VID 855/2006. 2. Ms D Saunders is to cease acting in the matter VID 855/2006. 3. Russell Kennedy firm is not to act in the matter VID 855/2006. 4. Applicant has leave to give oral evidence in the witness box. 5. Applicant has leave to cross-examine Ms D Saunders, Dr K P Hanscombe, Ms P R Davey. 6. Applicant has leave to cross-examine Mrs L Milne-Roch. 7. The Respondents pay the applicant's cost for appearing in the additional/private Court hearing instituted by the Respondents. 19 The matter returned before the Court at 9.30 am on 20 November 2006, and the removal applications and the notices of motion dated 14 November 2006 and 17 November 2006 were set down for hearing on 28 November 2006, and the hearing of the initial interlocutory applications was adjourned sine die. 20 The hearing of the removal applications and the notices of motion dated 14 November 2006 and 17 November 2006 were then heard before me on 28 November 2006. I reserved my decision. 21 Before I delivered my decision, by notice of motion dated 13 December 2006 ('the first stay motion') the first respondent sought the following orders: 1. Pursuant to subsection 66(1) of the Guardianship and Administration Act 1986 (Vic), the issue whether an administrator or guardian or both should be appointed for the applicant, with power and authority to conduct in this Court any proceedings to which the applicant is a party, be referred to the Victorian Civil and Administrative Tribunal for its determination. 2. Further proceedings in this matter be stayed until the Victorian Civil and Administrative Tribunal has determined whether an administrator or guardian or both should be appointed for the applicant. 3. Alternatively, further proceedings in this matter be stayed until the Victorian Civil and Administrative Tribunal has determined whether an administrator or guardian or both should be appointed for the applicant pursuant to the referral to the Tribunal by the County Court of Victoria on 6 December 2006 in County Court proceeding number CI-06-02573. 4. On or before 22 December 2006, the first respondent give notice of these orders to the Guardianship and Administration List of the Victorian Civil and Administrative Tribunal. 5. The costs of the motion be the first respondent's costs in the cause. 6. Such further or other orders as the Court deems appropriate. 22 This application followed the County Court of Victoria ('County Court') on 6 December 2006 referring to VCAT, pursuant to s 66 of the Guardianship and Administration Act 1986 (Vic), the issue whether the applicant needs a guardian or administrator or both appointed. 23 On 20 December 2006, after hearing the first stay motion, the Court ordered: 1. Further proceedings in this matter be stayed until the Victorian Civil and Administrative Tribunal has determined whether an administrator or guardian or both should be appointed for the applicant pursuant to the referral to the Tribunal by the County Court of Victoria on 6 December 2006 in County Court proceeding number CI-06-02573. 2. The costs of the motion be reserved. 24 I refused to make the orders sought in paragraphs 1 and 2 of the first stay motion. 25 On 1 February 2007, Heerey J heard argument seeking leave to appeal the decision of the Court given on 20 December 2006, and dismissed the application with costs: Bahonko v Nurses Board of Victoria [2007] FCA 71. I have been informed by senior counsel for the first respondent that on 21 February 2007 the applicant has sought special leave to appeal in the High Court of Australia the decision of Heerey J. 26 In the course of his reasons, Heerey J observed at [4]: It should be noted that the matter has been somewhat complicated by events after his Honour's decision. On 3 January 2007, on the ex parte application of the applicant, Bell J in the Supreme Court ordered that the Registrar of the County Court, amongst others, be restrained from participating in the VCAT proceeding. When the matter came on for hearing in VCAT on 10 January 2007 there was no appearance on behalf of the Registrar and the matter was accordingly dismissed. It appears from a letter from the Office of the Victorian Government Solicitor dated 30 January 2007 that the Registrar of the County Court will be applying in the Supreme Court to dissolve or vary the order of Bell J and then, subject to the outcome of that application, will apply to VCAT to revoke the order dismissing the VCAT proceeding. 27 His Honour concluded that it seemed "a matter of commonsense to wait until the procedures in the Victorian courts have worked out their proper course before this matter can resume". 28 After the stay order was made on 20 December 2006, by notice of motion dated 27 February 2007, the applicant sought the following relief: 1. Proceedings in the matter VID 855 of 2006 have been automatically reinstated on 10 January 2007 when VCAT dismissed Registrar Matheson's application. 2. Russell Kennedy Lawyers are not to act in the matter VID 855/06 and their motions are set aside. 3. I (Justice Middleton) disqualified myself from hearing the matter NO:VID 855/06. 4. Proceedings in relation to Contempt of Court by the Nurses Board of Victoria, Minister for Health/Bronwyn Pike, Victorian Government Solicitors and Russell Kennedy Lawyers to commence. 5. Jurisdiction of the Court in the matter VID 855/06 is extended to include relevant and criminal jurisdictions. 29 The hearing of the notice of motion dated 27 February 2007 took place before me on 7 March 2007. One issue canvassed was whether the stay order of 20 December 2006 was still operative. Both respondents indicated that if the stay order of 20 December 2006 was held to be no longer operative, then in the alternative, application was made for a further stay based on the position as it now stands ('the second stay application'). The terms of the second stay application were not precisely formulated, and written notice of such formulation was to be given to the applicant and the Court. 30 At the hearing before me on 7 March 2007, there was evidence that, on 12 December 2006, the Principal Registrar of the County Court ('the Registrar') applied to VCAT in accordance with the referral by the County Court dated 6 December 2006. A preliminary hearing was set down in that matter for 10 January 2007. 31 By way of oral ex parte application made to Bell J of the Supreme Court of Victoria, the applicant obtained an order on 3 January 2007, restraining the Registrar and the other parties in the County Court proceedings from participating in the VCAT hearing listed for 10 January 2007 or in any like proceedings before VCAT until 4:00pm on 7 March 2007, with liberty to apply for dissolution of the order. 32 On 10 January 2007, a member of VCAT made the following order ('the VCAT order'): The application for a guardianship order and an administration order is dismissed, there being no appearance by or on behalf of the applicant at the scheduled time for hearing. 33 On 9 February 2007, Hansen J of the Supreme Court of Victoria made the following order on application by the Registrar: 1. Paragraphs 1 and 2 of the orders made by the Honourable Justice Bell on 3 January 2007 be varied by permitting the Registrar of the County Court of Victoria to file an application in the Victorian Civil and Administrative Tribunal seeking the reinstatement for hearing of the proceeding in relation to Stanislawa Bahonko in the Guardianship List of the Tribunal, which proceeding was dismissed on 10 January 2007, but to proceed no further with the application until determination of Stanislawa Bahonko's present appeal in the Court of Appeal or further order. 2. Liberty to apply. 34 Later on 9 February 2007, Hansen J made the following order on the appearance only of the applicant and pursuant to the liberty to apply reserved by paragraph 2 of his Honour's first order: 1. The injunctions granted by paragraphs 1 and 2 of the orders made by the Honourable Justice Bell on 3 January 2007 and the variation thereof ordered earlier this day by the Honourable Justice Hansen be and are dissolved as on and from the making of this order. 35 Pursuant to s 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Registrar made an application dated 15 February 2007 to VCAT for, amongst other things, a review of the VCAT order. In response, the applicant made applications to VCAT seeking orders, amongst other things, that the Registrar's application be struck out. 36 The Registrar's application to VCAT and the applicant's applications were heard by Deputy President Billings on 2 March 2007. The Deputy President reserved his decision. To date, Deputy President Billings has not handed down his decision. 37 There are a number of issues now raised for my determination and which are outstanding, which need deciding prior to there being any hearing of the initial interlocutory applications. Such issues are as follows: 1. Whether I should disqualify myself from hearing and further participating in these proceedings by reason of actual bias or apprehended bias; 2. Whether the stay order made on 20 December 2006 no longer applied upon the dismissal by VCAT on 10 January 2007 of the application before it; 3. Whether Ms Saunders and Russell Kennedy should be restrained from acting on behalf of the Nurses Board in these proceedings; 4. In the event that the stay order made 20 December no longer applies, whether any stay order should now be made pursuant to the second stay application; 5. Whether to make orders in the terms of paragraphs 4 and 5 of the applicant's notice of motion dated 27 February 2007. 38 At the hearing on 7 March 2007, the applicant relied upon her affidavits sworn 7 February 2007 and 6 March 2007, and affidavits filed on behalf of the respondents, by Natasha Larkin sworn 2 March 2007 and Victor Harcourt sworn 2 March 2007, and the applicant's written submissions dated 28 February 2007. The applicant also made oral submissions in elaboration of her written submissions. This material was in the main directed to the issue of my disqualification, the effect of the stay order made on 20 December 2006 and the orders sought by the applicant in the terms of paragraphs 4 and 5 of the applicant's notice of motion dated 27 February 2007. 39 After hearing argument on 7 March 2007, I indicated to the parties that on 14 March 2007 I would deliver my reasons in relation to the question of my disqualification, and if I refused to disqualify myself, I would then also deliver my reasons concerning my determination of the issue of the application of the stay order of 20 December 2006. The appropriate way forward to resolve the other matters for determination would then be considered. This course was adopted in view of the preferred approach of the applicant that I decide the disqualification point first, and because the applicant wanted time to consider the second stay application, which in any event, had not been precisely formulated.

Disqualification 40 I approach the first issue of my disqualification on the basis that the applicant is alleging actual and apprehended bias. No issue of waiver has been raised in the circumstances of this case, even though the allegation of bias arose after the making of my decision on 20 December 2006 and even though reliance was placed upon a determination I made on 7 August 2006. No application seems to be made before me by the applicant to set aside my decisions of 20 December 2006 and 7 August 2006, as the focus of the applicant seems to be on my disqualification from further participation in the proceedings. In any event, for the reasons that follow, if application is taken to have been made to set aside my previous orders on the ground of bias, I would not set aside these orders. 41 As a preliminary matter, I should mention that it was submitted that the appropriate course for a party raising the question of disqualification of a judge who is hearing a matter is not to file a formal notice of motion, but to invite the judge to disqualify herself or himself. I do not think anything turns on this point for the purposes of my consideration. One way or the other, once the question arose as to whether I should disqualify myself, that issue needed to be determined as expediently as possible. In any event, I do not consider it impermissible to proceed by notice of motion seeking to move that a judge of the court disqualify herself or himself from commencing or completing a case on the ground of bias, although in my view this is not necessary: see British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [52]; Barton v Walker [1979] 2 NSWLR 740 at 749-50; Bainton v Rajski (1992) 29 NSWLR 539 at 541, 544; Kartinyeri v Commonwealth of Australia (No 2) (1998) 156 ALR 300, [1]-[2]; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; J Aron Corp v Newmont Yandal Operations Pty Ltd (2006) 58 ACSR 277. 42 The principles relevant to disqualification by reason of apprehended bias are set out in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge …, 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. [footnotes omitted] 43 Those principles were recently endorsed in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 231 ALR 663 at [110] per Kirby and Crennan JJ. 44 Apprehended bias must be "firmly established": R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50-51; and Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 158. I am also mindful that an allegation of bias must be "distinctly made and clearly proved": Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J. 45 To the extent that the applicant here alleges actual bias, the applicant must show that I approach issues with a closed mind, am unwilling or unable to decide issues impartially and am not amenable to persuasion by any evidence that might be led: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 122-123; Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at 442-443. 46 To the extent that actual bias is alleged, I reject such allegation. In each instance upon which I have made a determination in this proceeding, I have acted upon the evidence and the relevant principles of law, and did not approach any issue with a closed mind, unwilling or unable to decide the issue impartially. I was amenable to persuasion by any evidence which might be led. At all times, I have been particularly careful to ensure the rights of the applicant have been considered having regard to the fact she is legally unrepresented. I will continue to make those determinations required in these proceedings in a similar fashion, and according to the evidence and the relevant principles of law. The applicant may well be dissatisfied with my determinations, but this does not in itself establish a bias on my part towards her or to the contentions she desires I accept in these proceedings. 47 It is necessary to make some specific references to the main allegations of bias, which allegations seem to be in support of both actual and apprehended bias. One allegation put in the written submissions was as follows: Justice Middleton stated in an open Court to Mr Cordiner to that effect, that should they have chosen to proceed with their Motion for Summary Dismissal of VID 855/06 he would have done that and the matter would be over. By this statement Justice Middleton demonstrated prejudgment and an obvious bias. I did not make such a statement or words to that effect, and my reading of the transcript does not disclose such a statement being made by me. 48 Another allegation put in the written submissions was as follows: Pro-Government bias has been demonstrated by Justice Middleton in relation to me back on 7 August 2006 when Justice Middleton gave direction to the Registrar Mussett to refuse my application for injunction and other human rights matters against the Federal Government and its officials. 49 On 7 August 2006 I did direct, pursuant to O 46 r 7A of the Federal Court Rules, the Registrar of this Court to not accept an application received by the applicant on 4 August 2006. The Deputy District Registrar was of the view that the application, in its then form, was vexatious and an abuse of process. I agreed, and so made the direction not to accept the application. 50 The next complaint as to bias seems to be expressed in the written submissions as follows: I had an open mind and did not object but Justice Middleton by his judgments of 20/12/06 demonstrated that if he is asked by the Government or/and its Solicitors for something he would do as directed even if it would be obviously legally improper and causing significant injustice to the applicant. 51 The application heard on 20 December 2006 was heard and determined accordingly to law, and there is no support for the contention that I was deciding that application "as directed", presumably by the "Government or/and its Solicitors". 52 Other complaints have been made against me, but viewed in isolation or together do not lead to the conclusion of bias as contented for by the applicant. 53 Putting to one side the allegation of actual bias (which I have rejected), in relation to the allegation of apprehended bias, I also reject the applicant's contention. I do not consider that a fair minded lay observer might reasonably apprehend that I have not brought or might not bring an impartial mind to the resolution of the questions I have decided or will be required to decide. 54 In view of the above conclusions, I will not disqualify myself from the further hearing and determination of the proceedings. It is important that judicial officers discharge their responsibilities to sit, and I should not disqualify myself save for a proper reason.

Operation of the stay order of 20 December 2006 55 I now turn to consider whether the stay order made on 20 December 2006 no longer applied after the VCAT order. The first respondent contends that the stay order is still operative. The VCAT order dismissed the Registrar's application to VCAT, not on the merits but expressed to be because the Registrar did not attend the scheduled time for hearing. It was thus contended by the first respondent that the VCAT order was a procedural dismissal of the Registrar's application to VCAT and did not determine "whether an administrator or guardian or both should be appointed for the applicant pursuant to the referral to the Tribunal by the County Court on 6 December 2006 in the County Court proceeding number CI-06-02573". It was contended that the County Court's referral to VCAT has not been set aside or stayed and VCAT has not determined whether an administrator or guardian or both should be appointed for the applicant pursuant to the referral. It was contended that until the County Court's order of 6 December 2006 is set aside or stayed, the Registrar is bound, subject to any restraint imposed by the Supreme Court, to reapply to VCAT. 56 I readily accept that the Registrar is currently bound to reapply to VCAT. I understand the applicant has appealed to the Victorian Court of Appeal the decision of the Country Court made on 6 December 2006, but such appeal has not been heard and determined. I will proceed on the basis that the appeal to the Court of Appeal is properly on foot, but the decision of the Country Court made on 6 December 2006 is still operative, and will remain so until set aside or stayed. Further, as events have transpired, the application presently before Deputy President Billings may well reinstate the application made by the Registrar to VCAT on 12 December 2006 ('the original application') pursuant to the referral to VCAT by the County Court on 6 December 2006. Whether or not the original application to VCAT is reinstated, so long as the County Court order made on 6 December 2006 still applies, there seems no obstacle to a new application being made by the Registrar to VCAT for an order seeking a determination of whether an administrator or guardian or both for be appointed for the applicant. However, this will be a matter to be determined by VCAT. 57 It is also true that a determination on the merits has not been made whether an administrator or guardian or both should be appointed, and if one incorporates into the concept of "determination" more than the mere making of a decision, then the first respondent's submissions have much force. 58 However, whilst minds may differ as to the interpretation and effect of the word "determine", in my view, upon the dismissal by VCAT of the original application, there was no proper basis for the stay order to continue to operate. I made the stay order on the basis that the original application had been made on 12 December 2006 to VCAT in accordance with the referral by the County Court on 6 December 2006. However, the focus of my order was upon the original application, not upon the referral by the Country Court which gave rise to the original application. Whatever may remain of the effect of the order of the Country Court on 6 December 2006, on 10 January 2006 VCAT had disposed of the original application. By that dismissal VCAT effectively determined that an administrator or guardian was not to be appointed for the applicant, simply because VCAT could not make any other determination. Therefore, a decision was made not to appoint an administrator or guardian, albeit not on the merits. 59 In light of this conclusion, I am of the view that the stay order did not operate from 10 January 2007. The result of this conclusion is that the applicant was entitled to bring applications commenced after that date, including the application for me to disqualify myself. 60 I should indicate that had I come to a different view as to the operation of the stay order, I would have considered varying the order of 20 December 2006 to allow the applicant to bring the applications now before me and to facilitate the handing down of these reasons. In my view, I would have had the power to vary the stay order, and in light of the changed circumstances, would have the considered whether such a variation was appropriate. No such variation would have precluded the respondents from seeking a new stay order in light of the changed circumstances. It seems to me that once the issue of bias was raised by the applicant, this needed to be resolved by me as expeditiously as possible, allowing me then to take whatever action was required as to the proceedings in view of my conclusion as to disqualification. As it has eventuated, by my refusing to disqualify myself, I have been able to rule upon the operation of the stay order and will proceed to hear any remaining applications. I now propose to proceed to hear submissions as to any remaining applications and the appropriate orders to make in light of these reasons. I certify that the preceding sixty (60) 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

Counsel for the First Respondent: P Hanks with T Cordiner

Solicitor for the First Respondent: Russell Kennedy

Solicitor for the Second Respondent: Victorian Government Solicitor

Date of Judgment: 14 March 2007