Bahonko v Sterjov [2007] FCA 375 | Case summary

The applicant, as I understand her grounds, seeks to give further support for this order by asserting, as she did orally that she once saw Mr McKenney in conversation with a member of the staff of the court, and that to her observation the conversation appeared to be amicable. She gathered from that and submitted to me, that Mr McKenney had either associates, friends or agreeable contacts within the court, and that therefore I should assume that the ability of the court to do impartial justice as between the parties was compromised. This is a submission of no substance. I would hope that the staff members of the court converse agreeably with anyone who comes into contact with them as the occasion may demand. It is very common for that to occur. Members on the staff of the court must inevitably come into contact not only with litigants but also with their professional representatives. It is notorious that they engage with them in an amicable and, one would hope, a satisfactory way.' 14 I regard those observations, with respect, as unexceptionable. It is to be borne in mind that the adjudication of issues raised by proceedings in this court is entrusted to judges of the court. There is no foundation for the suggestion, implicit in paragraph 1 of the applicant's motion on notice of 5 February 2007, that any judge would betray his or her oath or affirmation of office by allowing cordial relations between court staff and any former associate or other former member of staff, who happened to be a legal practitioner representing a party, to influence the outcome of proceedings involving that party. This part of the application for leave to appeal, therefore, fails the first test endorsed by the Full Court in Décor Corporation Pty Ltd 33 FCR 397, namely that the decision of Jessup J be attended by sufficient doubt to warrant reconsideration on appeal. It must, accordingly, be refused. 15 Jessup J, in his reasons of 7 February, dealt at some length with the applicant's request that the respondents be "given warning against committing a contempt of Court". I have been unable to detect even an arguable error of fact or law in that treatment by his Honour. In some respects the exercise of discretion, which was clearly open, not to regard certain procedural transgressions imputed to the respondents as punishable as contempts, left it open for orders of the court to be enforced by other means. In other respects related to production of documents on discovery, his Honour expressed himself as not persuaded that any misconduct had occurred by redaction of parts of documents or otherwise which would warrant invoking this court's power to punish for contempt. 16 It is important to bear in mind that the power of the court to punish for a contempt, other than one committed in the face of the court, can only be exercised by motion on notice accompanied by a statement of charge. See O 40 rr 5 and 6 of the Federal Court Rules. If the court considers that such a proceeding should be initiated on its own motion, that should be done by the Registrar upon direction; O 40 r 10. I entertain very considerable doubts whether the issue of a "warning" in relation to an alleged contempt is within the range of orders which the court may make in exercise of the power conferred by section 31 of the Federal Court of Australia Act 1976 (Cth) or otherwise. However, I am not persuaded that his Honour's treatment of this part of the applicant's motion was attended by any doubt, or that it caused any substantial injustice to the applicant. For these reasons, her attack on paragraph 2 of his Honour's order of 7 February 2007 dismissing so much of her motion as sought, that the respondents be "warned" against contempt, must be rejected.

(a) Dismissal of the motion on notice dated 22 February 2007 18 I turn, then, to the question of leave to appeal from the orders of 23 February 2007. The first of those orders effected the dismissal of the motion on notice dated 22 February 2007. That motion sought, first, the adjournment of the directions hearing scheduled for 23 February 2007 to a date to be fixed. As the directions hearing on that date had already occurred before the motion on notice dated 22 February 2007 came on for hearing, this part of the relief sought by the applicant has been overtaken by events and need not be considered further. 19 The second order sought by the same motion on notice was that; 'Justice Jessup stands down from hearing the matter No VID 114/2006.' 20 As far as I can gather from the affidavits filed by the applicant in support of her various motions, the applicant's grounds for seeking this order, which, in substance, is an application for leave to appeal from a refusal by his Honour to disqualify himself from further hearing her application, are; (i) His Honour, in the course of various interlocutory applications, treated the applicant, to her detriment, differently from the respondents. In particular, it was alleged that the respondents were granted indulgences and excused for non-compliance with time limits imposed by the Rules or orders of the court without formally seeking leave or otherwise invoking such a favourable exercise of discretion. By contrast, his Honour was said to have "verbally attacked" and "psychologically bashed" the applicant during the hearing on 7 February 2007, including by asking her in an allegedly intimidating manner; 'Do you, Ms Bahonko, still represent yourself?' (ii) His Honour's disregard of the applicant's request to warn the respondents and their Counsel that they were at risk of being dealt with for contempt of court; see [13]-[15 above. (iii) His Honour's refusal to accede to the applicant's request for the joinder of additional parties as respondents to the proceedings. (iv) The fixing of the application for a three day trial to commence on 2 April 2007 over the applicant's objections that she could not be ready for trial on that date. (v) The change of date of an interlocutory hearing originally notified to occur on 9 February 2007 to 7 February 2007 to accommodate the desire of the Victorian Government Solicitor to prosecute in the Practice Court of the Supreme Court of Victoria on 9 February an application involving the applicant. It is alleged by the applicant that the Victorian Government Solicitor has "interfered with all my cases in the Victorian as well as the Federal Courts including this case under Justice Jessup." 21 It is particularly invidious for one judge to have to consider whether another judge of the same court has so conducted himself or herself in the management of a case through its interlocutory stages as to create a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to an adjudication on the merits at trial. Consistently with the principles outlined in Decor Corporation Pty Ltd 33 FCR 397,which I have already discussed, it is first necessary for the applicant to show that Jessup J's refusal to disqualify himself was attended by sufficient doubt to warrant reconsideration on appeal. 22 When pressed, during the hearing on 27 February 2007 of her application for leave to appeal, for instances of statements by his Honour which she relied on as establishing a reasonable apprehension of bias, the applicant said that she had been hampered in the presentation of that part of her case by lack of access to the transcripts of the hearings on 7 and 23 February 2007. The application for leave to appeal was, accordingly, adjourned until today and arrangements were made for the applicant to be provided with those transcripts. The applicant has availed herself of that opportunity and has filed supplementary submissions in two parts to reinforce her earlier contentions in support of a grant of leave to appeal. 23 I have read each part of those supplementary written submissions and I have heard Ms Bahonko's oral arguments amplifying them. I have also examined for myself the relevant parts of each of the transcripts of the hearings on 7 February and 23 February 2007. At the end of that process, I have been completely unpersuaded that Jessup J's refusal to disqualify himself was attended by sufficient doubt to warrant reconsideration on appeal. It is appropriate, in explaining the applicant's failure to persuade me in the requisite sense, to touch on each of the grounds of her allegation of apprehended bias which I have already identified. (i) I do not consider that anything which his Honour did by way of relieving the respondents from strict compliance with the rules or earlier orders without the need for formal application went beyond what was entirely appropriate by way of efficiently and expeditiously readying the applicant's application for trial. I have found no warrant in either transcript for the assertion that his Honour intimidated or psychologically harassed the applicant. His opening question on 7 February 2007 was; 'Ms Bahonko, you are representing yourself this morning again, are you?' That was echoed in similarly courteous terms on 23 February 2007, when his Honour asked: 'Yes, Ms Bahonko, you are conducting your own case this morning?' Significantly, the applicant makes no complaint of psychological intimidation at the outset of that second hearing. (ii) For the reasons already explained at [16] above in dealing with his Honour's refusal to accede to paragraph 2 of the applicant's motion on notice dated 5 February 2007 seeking that the respondents be given warning in relation to contempt of court, his Honour's rejection of that request was entirely proper. It, therefore, cannot sustain an allegation of apprehended bias. (iii) As I have already noted, his Honour did not peremptorily refuse the applicant's request to join additional respondents. On 7 February 2007, as his Honour's reasons of that date, from which I have already quoted, make clear, he then left open the question of joinder of additional respondents. That question was extensively considered on 23 February and full and dispassionate explanations were given at paragraphs [33]-[46] of his Honour's reasons of that date for refusing to add as respondents any of the Commonwealth Minister for Employment and Workplace Relations, the Commonwealth Department of Employment and Workplace Relations and the Victorian Minister for Human Services, all of whom had been proposed by the applicant as additional respondents. It follows that, like his treatment of the request to warn the respondents against contempt of Court, his Honour's refusal to join the proposed additional defendants cannot support an imputation of apprehended bias. (iv) I do not understand his Honour to have determined irrevocably that the trial of Ms Bahonko's application must commence on 2 April 2007 and must be completed in the ensuing three days. That is borne out by these observations of his Honour, at [17] of his reasons of 23 February 2007, explaining why he had proposed to deal then with the applicant's motion to join additional respondents. I shall discuss that explanation shortly; '17. As to the other aspect of the applicant's notice of motion filed yesterday, I agree with the submission made on behalf of the respondents that the fate of the orders which I made on 7 February 2007 will not bear upon the proper disposition of the applicant's notice of motion of 22 September 2006. As Mr McKenney pointed out, one of the orders sought in that notice is that new parties be added to the proceeding. Since the matter is listed for trial on 2 April 2007, if I should be persuaded that new parties need to be added to the proceeding, there is no time to be wasted in having them served and in hearing from them as to whether they would be ready to participate in a trial on 2 April 2007. I think it is very much in the interests of justice that this outstanding notice of motion be dealt with one way or the other, so that both sides in this consolidated proceeding can, with confidence, prepare themselves for the trial date.' (v) The fifth ground on which the allegation of apprehended bias was founded was the change of date of the interlocutory hearing fixed for 9 February 2007 to 7 February 2007. That change has been clearly explained by the docket judge in these terms, at [11] and [15] of his reasons of 23 February; '11. Thirdly, the applicant points to the circumstance that the interlocutory hearing on 7 February 2007 was originally listed for 9 February 2007. At the initiative of the court, the original listing was brought forward by two days on account of the pressure of business that would be before the court on 9 February. This rearrangement was effected, so far as the applicant is concerned, by my associate telephoning her and proposing the new date. The applicant has told me this morning that, when my associate telephoned, she agreed to the new date. However, according to her affidavit and to what she has submitted this morning, shortly after she agreed to that rescheduling of the hearing before me, she received a notification of a summons issued, she tells me, by the Victorian Government solicitor returnable on 9 February 2007 in the Practice Court of the Supreme Court of Victoria. As best I understand her argument in this regard, she says that that was a vexatious summons on the part of the Victorian Government solicitor and that the rescheduling of the hearing before me from 9 to 7 February 2007 made her available to attend the Practice Court on 9 February 2007. She contends that that constitutes circumstantial evidence that my associate had an arrangement of some kind with the Victorian Government solicitor to facilitate the applicant's appearance in the Practice Court when the applicant would, it seems, much prefer to have had the excuse of a proceeding in this court for not having to attend before the Practice Court. ……… 15. In relation to what I can only describe as a highly circumstantial conspiracy theory about the reason for the hearing of the previous notice of motion being brought forward by two days, I am satisfied that there is no evidence or other substance in the very unusual allegation made by the applicant in that regard.' 24 That explanation, I consider, provides a complete answer to the contention in this respect advanced by the applicant. I say that, notwithstanding the renewed assertion this morning that an examination of the Court List for 9 February tended to cast doubt on his Honour's assertion that the change of date for the directions hearing in the applicant's matter had been occasioned by the pressure of business that would be before the Court on 9 February. It is notorious that daily Court Lists are not a reliable guide to the pressure of business that is before the Court on a particular date, and it is also not unknown for a number of matters in a directions list to be resolved by consent or taken out of the list in the days preceding their listing. 25 That completes my examination of the specific grounds which I have identified as forming the basis for the applicant's imputation of apprehended bias. Even if, contrary to my firm conviction, there were some basis for an apprehension that the docket judge has been biased against the applicant, that would not avail her, on the present application for leave to appeal. That is because Jessup J's refusal to disqualify himself has not resulted in substantial injustice to the applicant so as to satisfy the second limb of the test in Décor Corporation Pty Ltd 33 FCR 397. 26 It is clear that his Honour's ruling on an application that he disqualify himself, if followed by orders affecting the rights of the parties, will be subject to appeal as of right; Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48. Consequently, if the applicant were to exercise her right of appeal in respect of some final order which may be made in the determination of her application, she would be able, in the course of that appeal, to ventilate fully her complaints of apprehended bias. It follows that a refusal of leave to appeal at this stage will cause her no detriment, other than the burden of a three day trial, which will be wasted if her complaints are made out and a new trial is ordered. That detriment can, largely, be alleviated by an appropriate order for costs and, perhaps, by the preservation of evidence given in the presumptively aborted trial. 27 For these reasons, the applicant has not satisfied the second limb of the test in Décor Corporation Pty Ltd 33 FCR 397 by showing that substantial injustice will result from a denial of leave supposing Jessup J's refusal to disqualify himself to have been wrong. 28 I turn, then, to deal with the dismissal of the remaining claims for relief in the motion of notice dated 22 February 2007. No attack has been mounted, separately from that based on apprehended bias, on Jessup J's refusal to join the Ministerial and Departmental respondents, identified earlier in these reasons, whom the applicant proposed to add. In any event, as I have already made clear, I am not persuaded that his Honour's reasons for refusing to add those respondents are attended by sufficient doubt to warrant reconsideration on appeal. 29 The remaining order, made on 23 February 2007, which I deal with lastly, was an order giving the applicant leave to inspect, by appointment at the Registry of the Court, documents which the respondents were to undertake to produce to the Registry. That order can only have been of benefit to the applicant and cannot support a contention that substantial injustice would result if it were allowed to stand.

Bahonko v Sterjov

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