Ward v Repatriation Commission

Proceedings in this Court 6 On 4 July 2013, Mrs Bahonko attended the Victorian Registry of this Court and sought to file the following documents: an originating application, a summons, an information and an affidavit. The affidavit appears to have been affirmed by her on 4 July 2013 before an appropriate officer in the Federal Court Registry. 7 In the originating application Mrs Bahonko sought an injunction against Judge Saccardo, restraining him from making orders against her, having her arrested or imprisoned and from starting contempt proceedings against her. In the information Mrs Bahonko sought to charge a long list of defendants with offences under the Crimes Act 1914 (Cth). The offences relied upon included such matters as acting oppressively in not granting bail (s 34), fabricating evidence (s 36) and conspiring to pervert the course of justice (s 42). The list of defendants included many judicial officers, including two High Court Justices, the Chief Justice of Victoria and President of the Victorian Court of Appeal, the Chief Judge of the County Court, the Chief Magistrate of Victoria, court officers and lawyers. The information also sought to make allegations of criminal conduct against the Victorian Attorney-General. 8 The supporting affidavit alleged that there was "organised crime within the administration of justice in my WorkCover case". It is clear from later documents filed by Mrs Bahonko in this Court, and from the submissions she has made, that she sees many judicial officers who have had anything to do with the various pieces of litigation she has brought as a key part of that "organised crime". 9 The Acting District Registrar refused to accept the documents. He was authorised to do so by r 2.26 of the Federal Court Rules 2011 (Cth), which relevantly provides: A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) … 10 The Acting District Registrar formed the view that this Court had no jurisdiction to hear and determine the criminal charges contained in the information by reason of s 68(2) of the Judiciary Act 1903 (Cth). Since there was no permanent relief sought in the application but rather only an injunction, I infer he saw the injunction application as dependent on the jurisdiction (if any) available by reason of the criminal charges. 11 Mrs Bahonko promptly filed an application for judicial review of the decision of the Acting District Registrar under r 2.26. Justice Tracey proceeded on the basis that judicial review of the refusal could be available, and with respect I agree that was the appropriate course to follow. His Honour dismissed the application, finding that the Acting District Registrar was correct in determining the Court had no jurisdiction to hear and determine criminal charges of the kind alleged by Mrs Bahonko. 12 His Honour also refused an application by Mrs Bahonko that he should recuse himself from hearing and determining her application for judicial review on the basis of a reasonable apprehension of bias, derived from Mrs Bahonko's allegations that Tracey J was an "Irish Judge" and thus part of a broader conspiracy against her by those of Irish descent in the justice system. 13 Time to appeal from Tracey J's decision expired on 29 July 2013. On 31 July 2013 Mrs Bahonko filed an application for an extension of time in which to file an appeal from Tracey J's orders. She supported that application with an affidavit affirmed on 31 July 2013, appending a draft Notice of Appeal. 14 Mrs Bahonko's application was heard on 19 August 2013. At the hearing, in support of her application Mrs Bahonko also relied on a further affidavit sworn by her on 16 August 2013. Mrs Bahonko was invited to address the Court principally on two matters: whether she had a reasonable explanation for the delay in filing her appeal and, secondly, whether she had an arguable case about why Tracey J's orders were affected by error. She spent some time in oral submissions addressing these and other issues she submitted were relevant to the Court's consideration.

Criteria governing the grant of extension of time 15 The two principal considerations that are presently relevant in the current circumstances to Mrs Bahonko's application are the explanation for the delay in filing her appeal, and the prospects of success of the proposed appeal itself. The latter consideration is to be approached by considering the merits without going into too much detail, taking into account the fact that the arguments are not fully developed and all the material may not be before the Court, but recalling the need to serve the interests of justice: see generally Ward v Repatriation Commission [2004] FCA 1163; Jackamarra v Krakouer (1998) 195 CLR 516 at 521-522 [7]-[9]. 16 Mrs Bahonko informed the Court that the purported respondents to this application have been served, although there was no appearance. In that sense, no particular matters have been put to the Court about prejudice to the respondents.

Consideration of Mrs Bahonko's submissions 17 Mrs Bahonko submitted she had a good explanation for the delay, which was that she had been unwell for some time, including at the time her application was heard before Tracey J. Her affidavits exhibited medical certificates for three periods: 30 July-2 August, 7-11 August and 13-14 August. Mrs Bahonko explained that it was only at the consultation with the last certifying medical practitioner that she obtained antibiotics, which have in turn improved her condition. She submitted this showed she had been sick previously and it was the absence of proper medical treatment that caused her not to recover more quickly. When it was pointed out that her medical certificates did not cover the period during which she had an entitlement to appeal, she submitted that she had difficulty securing medical attention during this period and that the subsequent medical certificates were capable of proving she was unwell throughout this period. 18 The delay in this case is only a matter of two days. On the evidence presented by Mrs Bahonko, I am prepared to find that her illness provides a reasonable explanation for the delay in filing her Notice of Appeal. 19 However, I must also be satisfied there is some merit in Mrs Bahonko's argument that Tracey J erred in dismissing her application for judicial review. On this aspect, Mrs Bahonko was invited to address the Court in relation to the 15 grounds of appeal set out in her draft Notice of Appeal. 20 She made three principal submissions. First, that to refuse the extension of time would deny her natural justice by not allowing her allegations of criminal conduct against the prospective defendants to be heard and determined by a court. Second, that Tracey J was wrong not to have disqualified himself from hearing her judicial review application, given that her basic claim is "against Protestant/Irish organised crime", in that it "is definitely the Irish/Uniting Church organised crime" that is responsible for the travesties of justice Mrs Bahonko considers have been perpetrated against her. Justice Tracey is, Mrs Bahonko submitted, an "Irish judge". Third, that the Federal Court website suggested there were forms and the like available in respect of criminal charges and she asked, rhetorically, why that would be the case if the Court had no jurisdiction. Aligned to this, when asked specifically about the effect of s 68(2) of the Judiciary Act, she submitted that s 68(2) did not mean the Federal Court has no jurisdiction. 21 In addition, she submitted she had been refused permission to file similar proceedings in the Victorian Supreme Court, so she was denied completely access to the courts to prosecute these claims, that organised crime was the responsibility of the Commonwealth and hence the Federal Court was the appropriate jurisdiction and, finally, the Commonwealth did not appear to oppose her application. 22 Mrs Bahonko also submitted that Tracey J had erred at [4] of his reasons by stating that she had sought to file an affidavit that was "unsworn". That matter is immaterial to any proper ground for an extension of time, especially given it is clear from his Honour's reasons at [9] that he recognised he had an affidavit before him that Mrs Bahonko had affirmed. 23 Whilst I accept, as Mrs Bahonko submitted, that she should not be required to advance detailed argument on each of her proposed grounds at this stage, in my opinion it is apparent on the face of the draft Notice of Appeal that none of the grounds are capable of being sustained. 24 There is no basis for Mrs Bahonko's submission that this Court has jurisdiction to hear and determine the breaches of the Crimes Act that she alleges. As Tracey J pointed out in his reasons, s 19(1) of the Federal Court of Australia Act 1976 (Cth) provides that this Court "has such jurisdiction as is vested in it by laws made by the Parliament". The Crimes Act provisions upon which Mrs Bahonko relies vest no jurisdiction in this Court, and Mrs Bahonko pointed to no other statutory source. 25 Further, s 68(2) of the Judiciary Act confers jurisdiction upon state and territory courts to hear and determine offences against laws of the Commonwealth. In R v Murphy (1985) 158 CLR 596 at 617, the High Court stated that s 68 "stood unchallenged … as a central provision in the administration and enforcement of federal criminal law". Its function has been construed in accordance with the "general policy disclosed by the enactment [of the Judiciary Act], namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice": Williams v The King (1934) 50 CLR 551 at 560 per Dixon J; see also R v Loewenthal; ex Parte Blacklock (1974) 131 CLR 338 at 345 per Mason J. 26 That policy reflects the federal legislature's decision to rely on state courts to administer criminal justice for federal offences, and the language of the provision is "general and ambulatory", designed to accommodate procedural changes as they occur at the state level: R v Gee (2003) 212 CLR 230 at 241 per Gleeson CJ; R v LK (2010) 241 CLR 177 at 187-188 per French CJ. 27 Mrs Bahonko's grounds of appeal in relation to Tracey J's refusal to disqualify himself have no rational basis in the evidence before me, and no prospects of success. His Honour applied the correct test and reached a view which was open to him and, in my respectful opinion, clearly correct. 28 The remaining grounds set out in the proposed Notice of Appeal (such as breach of s 117 of the Constitution, or breach of s 51(xxiv) and 51(xxix) of the Constitution, or breach of s 78B of the Judiciary Act) are not matters that are capable of founding any jurisdiction in this Court. Further, they go far beyond the alleged jurisdictional basis of Mrs Bahonko's original proceeding, which was the subject of the Registrar's refusal and her application for judicial review. 29 Finally, I agree with [15] and [16] of Tracey J's reasons for judgment, where his Honour observes that on the face of these documents the proceeding was plainly an abuse of process and, further, that the documents contained scandalous and unsubstantiated allegations. There were other sound bases on which a Registrar could have refused to accept the filing of these documents under r 2.26, and his Honour was correct to so observe. 30 For these reasons, I refuse the application for an extension of time on the basis that the proposed appeal has no prospects of success. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.