...
His Honour then went on to make a number of observations of aspects of Ms Bahonko's application, parts of which I have extracted below:
Before Gordon J the applicant asserted that Jessup J's orders contravened the WRA and that "[t]here were and are not any costs due against me." She claimed in her affidavit that the "manner of the orders given by Justice Jessup on 31 August 2007 further demonstrate that those orders are unreasonable & if remain would constitute abuse of the process and continuation of a fraud." She also alleged that his reasons constituted "multiple wilful misrepresentations, defamations and vilification of me ...". She criticised other aspects of Jessup J's reasons. Putting aside the inappropriate language, the reasons advanced may have been relevant as to whether the order for costs should have remained or were to be reviewed on appeal. However, Gordon J was not hearing an appeal but an interlocutory application for a stay. No ground was advanced why it was appropriate that the orders be stayed.
Justice Gordon described the additional matters relied on by the applicant as "scandalous and vexatious", being allegations of criminal conduct and conduct constituting abuse of office which were "unsupported and insupportable".
I agree with the observations.
Order 2 of her Honour's order on this notice of motion also had the effect of dismissing the applicant's application that the respondents' legal representatives step down. Her Honour dismissed that application on the ground that the allegations made in support of the notice of motion were without foundation and scandalous. I have studied the allegations contained in the applicant's affidavit sworn on 20 September 2007 which was the affidavit relied upon by the applicant before Gordon J and the affidavit sworn on 30 October 2007 in support of this notice of motion before me. I agree with her Honour in both respects. The allegations are without foundation and scandalous. I make these comments notwithstanding the vitriolic comments made by the applicant in respect of Gordon J's comments to the same effect.
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.
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
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] HCA 41; (1940) 64 CLR 130 at 140; Mann v O'Neill [1997] HCA 28; (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] HCA 34; (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge's reasons.
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: