Bahonko v Sterjov

• Jurisdiction: Australia Federal only
• Judgment Date: 14 November 2007
• Neutral Citation: [2007] FCA 1717
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 1717

PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory order of single judge of this Court refusing to grant stay order – whether decision attended with sufficient doubt – application for leave to appeal from order of single judge of this Court refusing leave to appeal from interlocutory decision – whether appeal lies from a decision to grant or refuse leave – application to amend reasons of another judge of this Court – whether power to amend reasons exists – application for leave to initiate contempt proceedings where leave previously denied – application to join the Commonwealth of Australia as a party – applications dismissed.

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

Federal Court of Australia Rules 1979 (Cth) O 52 r 17, O 52 r 2AA, O 46 r 7A, O 40

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685cited

Bahonko v Sterjov [2007] FCA 867 referred to

Bahonko v Sterjov [2007] FCA 1244 referred to

Bahonko v Sterjov [2007] FCA 1341 referred to

Bahonko v Sterjov [2007] FCA 1377 referred to

Bahonko v Sterjov [2007] FCA 1555 referred to

Bahonko v Sterjov [2007] FCA 1556 referred to

Bird v Free (1994) 126 ALR 475 cited

Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353cited

Cabassi v Villa (1940) 64 CLR 130 cited

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

Fingleton v R (2005) 216 ALR 474 cited

Mann v O’Neill (1997) 191 CLR 204 cited

Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 cited

Reid v Nairne (1985) 60 ALR 419cited

Sirros v Moore [1975] QB 118 cited

Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424cited

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543cited

STANISLAWA BAHONKO v KOSTA STERJOV, SNEZANA STERJOVA, LISA MCEWAN AND LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD

VID 949 OF 2007

LANDER J

14 NOVEMBER 2007

SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 949 OF 2007

BETWEEN:	STANISLAWA BAHONKO Applicant
AND:	KOSTA STERJOV First Respondent SNEZANA STERJOVA Second Respondent LISA MCEWAN Third Respondent LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD Fourth Respondent

JUDGE:	LANDER J
DATE OF ORDER:	14 NOVEMBER 2007
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The applicant’s notice of motion as amended on 1 November 2007 be dismissed.

2. The applicant pay the respondents’ costs of and incidental to the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 949 OF 2007

BETWEEN:	STANISLAWA BAHONKO Applicant
AND:	KOSTA STERJOV First Respondent SNEZANA STERJOVA Second Respondent LISA MCEWAN Third Respondent LA KOSTA CHILD CARE CENTRE & KINDERGARTEN PTY LTD Fourth Respondent

JUDGE:	LANDER J
DATE:	14 NOVEMBER 2007
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

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.

The applications before Gordon J

13 There were two notices of motion before Gordon J. In the first notice of motion (VID 743/2007) the applicant sought the following relief in these terms:

1. Transcripts of proceedings in the matters VID 114/06 and VID 756/06 be made available to the appellant:

(a) in an electronic form; or

(b) in a printed form.

2. Orders given by Justice Jessup on 31 August 2007 to stay until the appeal is fully determined.

3. Mr. M. McKenney and Mr Felix Vitiello to step down from a legal representation in the appeal matter VID 743/07.

4. Appellant’s claims of Contempt of the Court by Mr. McKenney, Mr. Vitiello, the Defendants and their witness Ms. Esther Keji Matthew to be determined prior to the appeal hearing & the Contempt of the Court proceeding is deemed to commenced.

14 That application was supported by the applicant’s own affidavit. In that affidavit she accused the trial judge of deceit and the respondents’ legal advisers of contempt and criminal conduct. The allegations were unsupported by evidence.

15 On 8 October 2007, Gordon J made the following orders:

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