Bahonko v Sterjov & Ors

Applicant's Notice of Motion dated 5 February 2007 6 On 5 February 2007 the applicant gave notice of a motion which she proposed to move today. She has moved in accordance with that motion. The three orders which she seeks are as follows:

1. Counsel for the respondents, M.G. McKenney stand down from representing the respondents due to a conflict of interest.
2. The respondents be given warning in relation to their contempt of the court.
3. The jurisdiction of the court be extended to include criminal jurisdiction and defamation law. 7 The ground upon which the applicant asks the court to order that Mr McKenney stand down from the proceedings is that, at some point in conversation with her, Mr McKenney told her that he worked for the Federal Court. I clarified with the applicant what Mr McKenney is supposed to have said, and she made it quite clear that he was then speaking in the present tense, that is to say, that as at the time when he had that conversation with her he was in the employ of the Federal Court. Mr McKenney told me today that he never had such a conversation with the applicant. He told me that he was not currently employed by this court, but that he was an associate to Keely J in 1990. I do not propose to enter upon the question whether any such conversation as the applicant alleges in fact took place. I accept, however, Mr McKenney's statement that he is not presently employed by the Federal Court and that he was once an associate to Keely J. The fact that counsel for one of the parties in a proceeding was once an associate to a Judge of the court is manifestly no basis for that person not to continue as counsel representing his or her client. The practice of Judges of this court having as associates persons who are in the early years of their experience as legal practitioners is widespread and longstanding; and it is a very common circumstance that former associates of Judges of this court appear in cases in the court from time to time. I do not regard any allegation that a person thereby has some kind of institutional or other conflict of interest as having any foundation whatsoever. 8 I rather gathered from the way the applicant supported this first order which she seeks that she relies also upon what she now says is a lie by Mr McKenney in conversation with her in saying that he worked for the Federal Court when in fact he did not. As I have said, I do not propose to enter upon the question of whether such a conversation occurred and if so what was said in it. I regard such matters as completely beyond the court's concern. The court ought not to investigate communications between the parties at that level. The court has no business instructing a party that it may not be represented by a particular person, even if the facts are as alleged by the applicant. 9 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. 10 Turning to the second order which is sought by the applicant the contempt of court to which the applicant refers, as I understand it, resolves itself into three areas. The first relates to an order made by Gray J on 27 February 2006 that the parties file and serve various documents on or before particular dates. These were directions given in the case and the applicant alleges that the respondent did not file and serve their documents in a timely way. I do not believe I have anything before me other than the applicant's say-so in relation to these matters; but assuming, as I am prepared to do, that the respondents were late in some of the documents which they filed, in all of the circumstances, especially the passage of time since then, I am not disposed to contemplate dealing with them for contempt by reason only of that circumstance. 11 The second ground upon which the applicant seeks that the respondents be dealt with for contempt is their failure to comply with an order which I made on 6 November 2006 that they file and serve their Amended Defence on or before 20 December 2006. The fact is that the Defence was not received until 15 January 2007. I have been shown a copy of a letter which was sent by the solicitor for the respondents on 25 January 2007 to my associate. After I have given these reasons and disposed of the applicant's Notice of Motion I shall consider whether any, and if so what, step ought to be taken in relation to the respondents' failure to comply with the order that the Defence be filed on or before 20 December 2006. It is sufficient for present purposes that I say that whatever step I might take in that regard I do not propose to deal with the respondents for contempt upon that ground. 12 The third basis upon which the applicant seeks that the respondents be dealt with for contempt relates to the matter of discovery and goes back, it would seem, to July 2006. In purported compliance with the respondents' obligations to make discovery, there was a meeting between the respondents' solicitor, Mr Vitiello, and the applicant at the Magistrates Court at Dandenong on 6 July 2006. In an affidavit sworn on 10 July 2006, the applicant makes a number of allegations about the way in which that discovery, and subsequent inspection, were given. Two aspects in particular are pressed by the applicant today: first, that Mr Vitiello did not produce originals of documents, and secondly, that those copies had been altered in a way which misrepresented the originals. For my own part, I cannot see any problem with the production of copies on inspection, although the applicant is always free to call for the inspection of the originals of a document if she takes the view that that would significantly advance her case in some respect. 13 However, the applicant's allegation that the documents were altered for the purposes of, or during the process of, photocopying, is a more serious matter. For this purpose the applicant handed to me a copy of the documents in question. One is a memorandum on a form of the Department of Human Services headed "Inspection Form Summary Sheet" which relates to a visit at La Kosta Child Care on 26 March 2004. The copy document is a single sheet, the entries on which are in handwriting. Although in one respect something has been crossed out and in another respect there is what the applicant has described as a star placed to the left of one of the paragraphs, there is no evidence that these notations did not appear on the original, and nothing that the applicant has put before me today suggests otherwise. The document has apparently been modified for the purposes of discovery by whiting out about the top one‑third of the hand‑written section of the document. In the absence of any other indication I am bound to assume that that part was whited out because it was irrelevant to the proceedings, as is quite common in discovery exercises. I do not for a moment desire to close off such rights as the applicant has to satisfy herself that the passage removed was indeed irrelevant, but I am a very long way from persuaded that anything which occurred here provides even a colourable basis for dealing with the respondents for contempt of court. 14 The other document which the applicant handed up consists of two pages of a letter from the Department of Human Services to the respondents, or at least to certain of the respondents, dated 30 November 2005. The only seeming alteration which has been made to this letter is the whiting out of certain parts. I might infer from the context of the text of the letter immediately surrounding the parts which have been removed that they were removed either because they were irrelevant or in order to protect the names of individual persons. As with the other document, I would not wish to close off what legitimate rights the applicant may have to satisfy herself that nothing untoward was done here, but on the face of the documents there is no arguable basis for saying that anyone has been involved in something with which the court should deal as a matter of contempt. 15 The third order which the applicant seeks would require the jurisdiction of the court to be extended, as she puts it, to include criminal jurisdiction and defamation law. This aspect of the applicant's case relates to the respondents' Further Amended Defence dated 18 December 2006 filed on 25 January 2007. The applicant has drawn my attention particularly to passages in that Defence which make allegations against her in relation to her conduct and statements whilst in the employ of the respondents. 16 It is manifest that these allegations, assuming them to be legitimate parts of the respondents' case as I do, are not only proper but necessary to be included in a Defence. The preparation of a Defence in legal proceedings is the subject of absolute privilege, and I must say that I have never heard of a party in litigation seeking to make a claim in defamation on no other ground than that the allegations made against it by the other party were, if made in other circumstances, defamatory. For those reasons, I am not persuaded that the applicant has a seriously arguable cause of action in defamation upon the ground that she has put before me, and I would not permit that cause of action to be introduced into the proceedings. 17 I am not sure that I entirely understand what the applicant wants when she asks for the jurisdiction of the court to be extended to include criminal jurisdiction. That is not a step that I have any power to take. The applicant has not pointed to any procedure by which this case can be turned into a criminal one, and I must say that every part of my instinct tells me that such a step could not be taken by a court exercising civil jurisdiction such as the Federal Court. Further, I cannot, in anything in which has been said or done by the respondents, even as elaborated upon by the applicant, see anything which would provide a foundation for the intervention of the criminal law in any of these matters. 18 I propose to dismiss the applicant's Notice of Motion dated 5 February 2007.

Leave to file further amended defence out of time 19 I propose to give leave for the respondents to file their Further Amended Defence on 25 January 2007 and to order that the Further Amended Defence filed on that day stand as their Defence in the proceeding. I do that because I have heard the applicant at length in relation to the subject and I am not persuaded that she would suffer any prejudice by reason of the making of such an order. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup .

Associate: Dated: 14 February 2007 Counsel for the Applicant: The applicant appeared in person