Bahonko v Nurses Board of Australia [2007] FCA 71 (1 February 2007)

PRACTICE & PROCEDURE – application for leave to appeal from interlocutory decision

Held: No error in trial judge’s exercise of discretion

Bahonko v Nurses Board of Australia [2006] FCA 1817 cited

STANISLAWA BAHONKO v NURSES BOARD OF AUSTRALIA AND THE MINISTER FOR HEALTH/BRONWYN PIKE
VID 1404 OF 2006

HEEREY J
1 FEBRUARY 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1404 OF 2006

BETWEEN:	STANISLAWA BAHONKO Applicant
AND:	NURSES BOARD OF AUSTRALIA First Respondent THE MINISTER FOR HEALTH/BRONWYN PIKE Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	1 FEBRUARY 2007
WHERE MADE:	MELBOURNE

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 1404 OF 2006

BETWEEN:	STANISLAWA BAHONKO Applicant
AND:	NURSES BOARD OF AUSTRALIA First Respondent THE MINISTER FOR HEALTH/BRONWYN PIKE Second Respondent

JUDGE:	HEEREY J
DATE:	1 FEBRUARY 2007
PLACE:	MELBOURNE

1 Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) the applicant Ms Stanislawa Bahonko seeks leave to appeal to a Full Court against a decision of Middleton J given on 20 December 2006: Bahonko v Nurses Board of Victoria [2006] FCA 1817. His Honour ordered that further proceedings in the matter be stayed until the Victorian Civil and Administrative Tribunal (VCAT) had determined whether an administrator or guardian, or both, should be appointed for the applicant pursuant to a referral to VCAT by the County Court of Victoria under s 66 of the Guardianship and Administration Act 1986 (Vic). In the substantive proceeding the applicant seeks relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for alleged racial discrimination.

2 At that stage his Honour had already reserved judgment on a question relating to the continuation of legal representation engaged by the first respondent. There was also a pending application by the first and second respondents to have the whole proceeding dismissed. However, in granting the stay his Honour decided in effect that those questions should await the hearing and determination of the matter before VCAT: see [15]-[16].

3 I do not detect any error in the exercise of his Honour's discretion to grant the stay. It does not appear that his Honour has taken into account any irrelevant consideration, or failed to take into account any relevant consideration. His Honour's decision on its face is not unreasonable; indeed, in my respectful opinion, it appears eminently sensible and its correctness is not open to doubt. The question of the proper representation of the applicant should be decided according to the law of Victoria which has now been invoked. There would be no reasonable prospect of success for the proposed appeal, and in such event leave should be refused.

4 It should be noted that the matter has been somewhat complicated by events after his Honour's decision. On 3 January 2007, on the ex parte application of the applicant, Bell J in the Supreme Court ordered that the Registrar of the County Court, amongst others, be restrained from participating in the VCAT proceeding. When the matter came on for hearing in VCAT on 10 January 2007 there was no appearance on behalf of the Registrar and the matter was accordingly dismissed. It appears from a letter from the Office of the Victorian Government Solicitor dated 30 January 2007 that the Registrar of the County Court will be applying in the Supreme Court to dissolve or vary the order of Bell J and then, subject to the outcome of that application, will apply to VCAT to revoke the order dismissing the VCAT proceeding.

5 The applicant asserted from the bar table that she had been told by Middleton J’s Associate that the present application to the Court (VID 855 of 2006) would be "automatically reinstated". There is no verification of that assertion and it is not necessary for me to explore it because there can be no doubt that, until set aside or varied, Middleton J’s stay order is operative. The events in January having occurred subsequent to his Honour’s order they cannot affect its validity. In any event, it seems a matter of commonsense to wait until the procedures in the Victorian courts have worked out their proper course before this matter can resume.

6 The other matter before the Court is a notice of motion, dated 30 January 2007, brought by the applicant. She seeks orders that the proceeding VID 855 of 2006 be reinstated, that Middleton J stand down from hearing the matter further, that Russell Kennedy Lawyers "are removed from acting in the matter", that motions issued by Russell Kennedy with respect to VID 855 of 2006 "cannot affect future proceedings and must be put aside" and that the jurisdiction of the Court in the matter VID 855 of 2006 be "extended by adding relevant and criminal jurisdiction".

7 As I have already mentioned, the stay order is valid and operative, and that means that the notice of motion, being a further step in the proceeding, cannot be brought. It should be mentioned, of course, that it is entirely inappropriate to attempt to challenge the jurisdiction of one judge before another single judge. So the application for leave to appeal will be dismissed with costs, and the notice of motion dated 30 January 2007 will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Counsel for the Applicant:	The Applicant appeared in person

Counsel for the First Respondent:	P Hanks QC and T Cordiner

Solicitor for the First Respondent:	Russell Kennedy

Counsel for the Second Respondent:	A O’Brien

Solicitor for the Second Respondent:	Victorian Government Solicitor

Date of Hearing:	1 February 2007

Date of Judgment:	1 February 2007