Bahonko v Sterjov [2007] FCA 1717 | Case summary

Federal Court of Australia|2007-11-14|Before: Gordon J, Jessup J, Lander J

The applicant's allegations 74 The proposed notice of appeal that the applicant would file if leave had been granted is, like the applicant's affidavits, scandalous and vexatious. The grounds of appeal relating to Gordon J's conduct and reasons are outrageous and unsupported by the reasons about which the complaints are made. 75 The applicant has filed applications before Finkelstein J, Goldberg J, Gordon J and now me in which she has successively made complaints about the conduct of judges of this Court and of the legal practitioners representing the respondents. Latitude is given to unrepresented parties because sometimes they may have difficulty in understanding the Court's processes. Sometimes unrepresented parties become very involved in the processes and express themselves infelicitously. However, there comes a time when the Court must, for the purpose of maintaining the dignity of the Court and the public's confidence in the Court, say enough is enough. That stage has been reached. The applicant must understand that, if she continues to make unsubstantiated allegations of the kind in the application, affidavits and draft notices of appeal which scandalise the Court, action may need to be taken for the protection of the Court. I have considered whether it might be appropriate to take action in this proceeding. However, the applicant has not previously been warned that her conduct may be considered to be a contempt of the Court. I have therefore determined that on this application she should be given this warning. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Workplace Relations Act 1996(Cth)

Human Rights and Equal Opportunity Act 1996(Cth)

Federal Court of Australia Act 1976(Cth)ss 24(1A), 25(2)(a)

Introduction 1 This is an application for leave to appeal and for consequential orders from orders made by Gordon J on 8 October 2007. There were two separate notices of motion before Gordon J. She made orders in each of the proceedings and published separate reasons for those orders: Bahonko v Sterjov [2007] FCA 1555; Bahonko v Sterjov [2007] FCA 1556. The orders made in both proceedings are the subject of this application for leave to appeal. 2 The application was brought by notice of motion filed on 15 October 2007 and supported by an affidavit of the applicant sworn on the same day. A supplementary affidavit was filed on 18 October 2007. Subsequently, on 30 October 2007, the applicant filed an amended notice of motion and a further affidavit sworn on the same day.

The Substantive Proceedings 3 The applicant brought two applications against the respondents under s 170CP of the Workplace Relations Act 1996 (Cth) (the WRA) alleging contraventions of ss 170CK(2) and 170CM of that Act and under s 46PO of the Human Rights and Equal Opportunity Act 1996 (Cth),alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth) and for defamation. 4 On 6 November 2006 the two applications were consolidated and the applications were heard by Jessup J. 5 On 24 May 2007 during the proceeding before Jessup J and before its determination, the applicant made an oral application for leave to file a statement of charge for contempt against the respondents and their legal representatives and to challenge the competency of two of the witnesses called on behalf of the respondents, amongst other things. Those applications were refused by Jessup J: Bahonko v Sterjov [2007] FCA 867. 6 On 30 May 2007 the applicant sought leave to appeal from Jessup J's refusal to grant leave, but on 9 June 2007 Finkelstein J directed the Registrar that the notice of motion of 30 May 2007 be refused for filing. 7 In reasons published on 15 August 2007, that part of the consolidated proceedings seeking relief under the two statutes was dismissed by Jessup J. However, Jessup J found that the fourth respondent had defamed the applicant and awarded the applicant $50 in damages: Bahonko v Sterjov [2007] FCA 1244. 8 On 15 August 2007 Jessup J made the following orders: 1. To the extent not previously dealt with by the Court, the motion of which the applicant gave notice on 4 May 2007 be dismissed. 2. The fourth respondent pay the applicant damages in the sum of $50. 3. The application otherwise be dismissed. 4. The parties have leave to file and serve: (a) on or before 22 August 2007, the written submissions as to costs; (b) on or before 24 August 2007, any submission in reply to the costs submission of another party.

Applications following the primary judge's orders 9 On 16 August 2007 the applicant filed a notice of appeal against those orders. On 23 August 2007 she filed a notice of motion on which she had made handwritten amendments, seeking the following orders: 1. The orders given by Justice Jessup on 15 August 2007 stay (put on hold) until the appeals from those orders is fully determined. 2. The stay order is applicable as from the date of this Motion that is 20 August 2007. 10 On 27 August 2007 Goldberg J dismissed the application to stay the orders made by Jessup J on 15 August 2007: Bahonko v Sterjov [2007] FCA 1377. Justice Goldberg decided that there was no need for a stay of the first three orders made by Jessup J. Orders 1 and 3 would be considered on appeal. Order 2 was in the applicant's favour. He considered the applicant's argument that order 4 be stayed, but rejected a stay because the order simply required the parties to file and serve submissions on costs. His Honour was not prepared to interfere with the trial process. He said that if an adverse costs order was made against the applicant she could appeal and, if it were appropriate, seek an order for a stay. In his reasons, Goldberg J rejected the applicant's very serious complaints about the trial judge and the respondents' legal advisers, which he described as being without basis and unsupported by the evidence. 11 On 31 August 2007 Jessup J made orders as to costs in the substantive proceedings: Bahonko v Sterjov [2007] FCA 1341. The orders made by Jessup J on 31 August 2007 were: 1. The applicant pay the respondents' costs of proceeding VID 756/2006 to the extent that such costs were incurred on or before 6 November 2006. 2. The applicant pay three-quarters of the respondents' costs of and incidental to the applicant's notice of motion dated 22 September 2006. 3. The applicant pay the respondents' costs of and incidental to the applicant's notice of motion dated 27 October 2006. 4. The applicant pay the respondents' costs of and incidental to the applicant's notice of motion dated 5 February 2007. 5. The applicant pay one-half of the balance remaining of the respondents' costs of the proceeding to the extent that such costs were incurred after 6 November 2006 after the deduction of so much of the respondents' costs of the notice of motion referred to in orders 2, 3 and 4 above as were incurred after 6 November 2006. 12 On 21 September 2007 the applicant amended her notice of appeal to include grounds of appeal against the orders made by Jessup J for costs on 31 August 2007.

Paragraphs 7 and 10 60 Paragraphs 7 and 10 of the notice of motion seem to assume that a judge of the Court has some sort of supervisory jurisdiction over another judge of the Court or at least the reasons published by another judge of the Court. Nothing could be further from the fact. The notion of the independence of the judiciary is fundamental to the system of justice in this country. It is not only that judges are independent of the Executive but each judge of the Court is independent of each other. It is important that judges are not subject to influences or pressures from their fellow judges so that each judge can give their judgment and their reasons freely. A judge's judgment and reasons are subject to scrutiny but only on appeal. 61 Each judge, when exercising the jurisdiction of the Court, is sitting as "the Court". In those circumstances, no one judge sitting as the Court can direct another judge, also sitting as the Court, to do or not to do something and, in particular, to review the judge's reasons or in any way alter those reasons: Bird v Free (1994) 126 ALR 475. It goes without saying, of course, that no judge could direct another judge to apologise to a litigant or to pay damages to that litigant. 62 For those reasons, the applications must be dismissed. 63 The applicant should understand that the kinds of complaints she makes about the judges of this Court must be viewed in the light of the immunity which attaches to judicial proceedings. A judge, a jury, the parties, their representatives and witnesses enjoy an absolute privilege in respect of their statements in judicial proceedings: Cabassi v Villa (1940) 64 CLR 130 at 140; Mann v O'Neill (1997) 191 CLR 204 at 211. The rationale for the rule is that it is indispensable for the performance of the function: Mann v O'Neill 191 CLR at 213. It exists for the protection of judicial independence: Fingleton v R (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge's reasons. 64 In Fingleton 216 ALR at 485-6, Gleeson CJ cited with approval Lord Denning's dicta in Sirros v Moore [1975] QB 118 at 132: Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. 65 It is not necessary to consider the boundaries of judicial immunity from criminal responsibility available to a judge exercising judicial functions. 66 It follows that the relief sought by the applicant in those paragraphs is simply not available. 67 I should say, so as to avoid any doubt, that even if I had the jurisdiction which is sought to be invoked I would not exercise it. The claims made by the applicant, as I have already said, are scandalous.

Bahonko v Sterjov

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