Avant-Garde Logistics Solutions Pty Ltd v Five Fish Super Pty Ltd
[2021] VSC 669
•15 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03713
| AVANT-GARDE LOGISTICS SOLUTIONS PTY LTD | Applicant |
| v | |
| FIVE FISH SUPER PTY LTD | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11, 13 October 2021 |
DATE OF RULING: | 15 October 2021 |
CASE MAY BE CITED AS: | Avant-Garde Logistics Solutions Pty Ltd v Five Fish Super Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 669 |
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PRACTICE AND PROCEDURE – Interlocutory applications – Admissibility of affidavit evidence – Whether history of appearances by non-lawyer applicant for leave to appear relevant – Credibility and hearsay evidence – Whether evidence on information and belief admissible – Whether evidence unfairly prejudicial – Application for determination on the papers – Where further application by non-lawyer for leave to appear foreshadowed – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 1.17, 43.03; Evidence Act 2008 (Vic) ss 55, 56, 59, 75, 101A, 102.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms P Wakhlu (part of 13 October 2021) | Mr S Kuksal (by leave) New Edge Law |
| For the Respondent | Mr B Harding | Hercules Constan Lawyers |
HIS HONOUR:
A. Background
Avant-Garde Logistics Solutions Pty Ltd, the applicant (‘Avant-Garde’), leased business premises in St Kilda Road, Melbourne from Five Fish Super Pty Ltd, the respondent (‘Five Fish’). Avant-Garde and Five Fish have been caught up in disputes for much of the time since they entered into the lease agreement. Most recently, on 1 October 2021, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) declared that the lease had been validly terminated by Five Fish on 16 August 2021 and enjoined Avant-Garde from entering the premises after 4 October 2021 (‘the VCAT order’). On 4 October 2021, Avant-Garde applied in the practice court after hours for an order staying the operation of the VCAT order. Five Fish was on notice and appeared by counsel.
Mr McGregor, a solicitor with the firm on the record for Avant-Garde, applied for leave to have Shivesh Kuksal present argument before me. He, or Mr Kuksal, stated that Mr Kuksal had appeared for Avant-Garde before the Tribunal, that he was the ‘exclusive beneficial owner’ of Avant-Garde, and that he was more familiar with the matter and the issues that arose than Mr McGregor. I granted leave for Mr Kuksal to appear before me on that day. However, in the course of that hearing, I made it clear to Mr Kuksal, and thus to Avant-Garde, that he could not assume that I would grant him leave to appear in subsequent hearings. I noted that Avant-Garde, as a company, was obliged to be represented by a lawyer with the right of appearance before this Court.[1] I also noted that there was particular reason to enforce the rule here, given that Mr Kuksal had anticipated that he, or Avant-Garde, would be alleging fraud. The issue was left on the basis that he would be entitled to apply for leave on the return date, Five Fish was free to oppose the grant of leave, and that I would determine any application on the return date.
[1]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.17.
I made an order staying the effect of the VCAT order until 4pm on 13 October 2021 on the basis of undertakings by Avant-Garde:
(a) to pay to Five Fish the sum of $5,320 by noon on 5 October 2021, which sum was equivalent to the rent that would be payable for the period to 16 August 2021 together with the additional sums found owing by the Tribunal; and
(b) to commence proceedings in which it sought to appeal against the VCAT order, and also the usual undertaking as to damages.
I directed Avant-Garde to file any material upon which it proposed to rely by noon on 7 October 2021, Five Fish to file any material upon which it proposed to rely by 8 October 2021, and then for the exchange of written submissions.
Avant-Garde did not file any material beyond that which it had sought to file on 4 October 2021.[2] On Friday, 8 October 2021, Five Fish filed an affidavit sworn by Christopher Graeme Bolden, the solicitor with the conduct of the matter on behalf of Five Fish, which included material that it proposed to rely on in opposition to Mr Kuksal being granted leave to appear for Avant-Garde. In the affidavit, Mr Bolden referred to various other legal proceedings in which unfavourable comments had been made about the way in which Mr Kuksal had handled himself when appearing in those proceedings. There were some references that suggested that his integrity had been impugned. Five Fish also filed an affidavit sworn by Wallace Roy Tench, a director of Five Fish, in which he swore on information and belief that Avant-Garde had other, adjacent, leased premises that it could use, on the basis that that was something relevant to the balance of convenience.
B. The 11 October 2021 hearing
[2]In fact, whilst Avant-Garde’s notice of appeal and summons were eventually provided in a form acceptable for filing, the affidavit in support of Yaping Li sworn 4 October 2021 remains unfiled, as does the unsworn affidavit of Mr Kuksal dated 13 October 2021. I have nonetheless had regard to those documents as if they had been filed.
After hours in the evening of Friday, 8 October 2021, Avant-Garde, or Mr McGregor, sought an urgent directions hearing. The Court convened at 12:30pm on Monday, 11 October 2021. Despite my chambers receiving an email from New Edge Law less than an hour before the hearing assuring the Court that Mr McGregor would be in attendance, only Mr Kuksal was present for Avant-Garde at 12:30pm. I was told that Mr McGregor had become unavailable. In the circumstances, I had little choice but to grant Mr Kuksal leave to appear on its behalf for the purpose of the applications to be made by it on that day. In that hearing, Avant-Garde made a number of oral applications. I ruled on those applications, and, for some, said that I would give reasons later. These are those reasons.
The applications are set out below, but not in any particular order. For completeness, I include a reference to Mr Kuksal’s application for leave to present argument on behalf of Avant-Garde at the hearing on 13 October 2021, which application was not, for the reasons that are set out, ultimately pursued on 11 October 2021.
B.1. The application to exclude Mr Tench’s evidence
Mr Tench is a director of Five Fish. He deposed, on information and belief, that a company known as Avant-Garde Logistics Solutions Pty Ltd was the tenant of premises immediately adjacent to those leased from Five Fish by Avant-Garde, the applicant in this proceeding, and that Avant-Garde had access to those premises. This evidence was relevant because Avant-Garde was relying on an affidavit that suggested that it had nowhere else to go.
Avant-Garde sought a ruling that Mr Tench’s affidavit was inadmissible because it was hearsay. I ruled to the contrary. Avant-Garde’s application for an injunction pending trial is an interlocutory application and accordingly, under r 43.03 of the Supreme Court (General Civil Procedure) Rules 2015, evidence on information and belief is admissible.[3]
B.2. The application to exclude material in Mr Bolden’s affidavit
[3]I note also that s 75 of the Evidence Act 2008 (Vic) exempts evidence in interlocutory proceedings from the application of the hearsay rule as long as the party adducing the evidence also adduces evidence of its source, which Mr Tench did.
In his affidavit, Mr Bolden identified various cases that have involved Mr Kuksal, and set out passages from reasons given by members at the Tribunal or judges of this Court that were critical of Mr Kuksal. He included a passage from a decision by a member at the Tribunal where Mr Kuksal was described as having made serious personal and professional allegations against others seated at the bar table, and the member’s conclusion that Mr Kuksal was ‘attempting to intimidate’ those persons.[4] Mr Bolden included a passage from a deputy president at the Tribunal where Mr Kuksal’s conduct in the hearing was described as ‘unacceptable, with him being unreasonable, argumentative and misleading’.[5] He included a passage from a decision of this Court at first instance where the judge said he suspected that Mr Kuksal may have perjured himself in the witness box and that he intended to refer him to the Office of Public Prosecutions, but did not draw a final conclusion to that effect.[6]
[4]Li v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 877, [17] (Member K Metcalf).
[5]Nguyen v Efektiv Pty Ltd (Residential Tenancies) [2019] VCAT 1680, [39] (Deputy President Proctor).
[6]Re Kornucopia Pty Ltd (No 4) [2020] VSC 7, [530] (Sifris J).
Avant-Garde, through Mr Kuksal, contended that the paragraphs were generally prejudicial and would require material in response if allowed. It also contended that:
(a) the material was irrelevant, and thus inadmissible by reason of s 56 of the Evidence Act 2008;
(b) the material was inadmissible by reason of ss 101A and 102 of the Evidence Act 2008 because it went to credibility and was not adduced in cross-examination; and
(c) alternatively, if admissible, the material should be excluded under s 135 of the Evidence Act 2008.
Five Fish clarified that the evidence was to be relied on for, and only for, the purpose of opposing Mr Kuksal’s anticipated application for leave that he appear for Avant-Garde at the hearing of the application for interlocutory relief. Five Fish also stated that the paragraphs were included to prevent Mr Kuksal from being caught by surprise, as it contended that it could have taken me to those passages even if they were not in an affidavit. Mr Kuksal did not contend that he would not be seeking leave to appear for Avant-Garde; indeed, it was clear that he intended to do so.
I ruled that the material was admissible.
Hearsay – Evidence Act 2008 (Vic) s 56
Section 56(2) of the Evidence Act 2008 provides that evidence that is not relevant is not admissible. I consider that the material is relevant to Mr Kuksal’s application for leave to appear for Avant-Garde notwithstanding that he is not a lawyer.
As I explained to Mr Kuksal, I was prepared to assume that he had explanations for all of the impugned conduct that, if accepted, would excuse him of any inappropriate behaviour. Further, as I also explained to Mr Kuksal, I do not consider that it would be necessary for me to get to the bottom of the truth of these matters in the context of this application, and that I did not intend to draw any conclusion based on the evidence under consideration that he had in fact engaged in misconduct. Rather, what seemed to me to be relevant was the fact that, rightly or wrongly, issues seem to have arisen in the past on occasions when Mr Kuksal has appeared and presented argument before a tribunal or court. The fact that problems have arisen in the past, regardless of whose fault they were, prevented him from submitting that he had appeared for himself or companies associated with him on numerous occasions in the past without there having been any complaints or incidents. In circumstances where I have a discretion to exercise in all the circumstances, that makes the material relevant. Just as it would have been relevant if Mr Kuksal had been able to establish that he had appeared for corporations on many occasions in the past without there having been any incidents and nothing but praise for his performance, it is relevant that that is not the case.
Credibility – Evidence Act 2008 (Vic) ss 101A, 102
Section 102 of the Evidence Act 2008 provides that credibility evidence about a witness is not admissible. Section 101A provides that credibility evidence is evidence relevant to the credibility of the witness or person that is relevant only because it affects the assessment of the credibility of the witness or person, or evidence that is relevant because it affects the assessment of the credibility of the person and for some other purpose for which it is inadmissible or cannot be used. Section 103 provides an exception if the evidence is adduced in cross-examination.
I do not consider that the material is ‘credibility evidence’ as that term is defined in s 101A of the Evidence Act 2008. That section is a reflection of the common law principles that trials must be fair and that collateral attacks ought not to be made to prevent trials becoming overly long and overly complicated.[7] Here, the evidence is not relevant ‘only’ because it affects the credibility of Mr Kuksal. As I have explained above, it is relevant because it goes to the issue as to how cases have gone in the past in circumstances where Mr Kuksal has appeared for or presented argument on behalf of a company. This is a different issue to his ‘credibility’.
General exclusions – Evidence Act 2008 (Vic) s 135
[7]See, eg, Palmer v The Queen (1998) 193 CLR 1, 21–2 [48]–[52] (McHugh J).
Finally, I do not consider that I should exclude the material under s 135 of the Evidence Act 2008 on the grounds that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to Avant-Garde. Of course, it is not enough that material be ‘prejudicial’ in the lay sense of the word. Rather, the section only requires consideration of the extent to which the material is ‘unfairly’ prejudicial, in the sense that there is a risk that the evidence will be misused in some way.[8] In my assessment, the probative value of the material is not outweighed by any unfairly prejudicial effect it might have. This is on the basis that:
[8]See, eg, Ainsworth v Burden [2005] NSWCA 174, [99] (Hunt AJA).
(a) I do not propose to make findings on whether Mr Kuksal had, in fact, in the circumstances referred to, acted improperly;
(b) rather, I intend to limit my consideration to the fact that issues had arisen as to whether he had acted improperly; and
(c) I consider that matter to be of some significance in the application.
Mr Kuksal also referred to s 136 of the Evidence Act 2008. That section permits me to limit the use to which evidence may be put. Mr Kuksal did not identify any particular limitation that he sought. In that sense, no application in relation to s 136 was in fact made. But, as is apparent from the above, the evidence is only being relied on for the limited purpose of opposing Mr Kuksal’s application for leave to appear, and I do not intend to use it other than on that issue. Further, as noted above, I do not intend to use that evidence to make findings on whether or not Mr Kuksal has acted dishonestly in the past. Accordingly, there is no occasion for me to make a ruling on any application under s 136 of the Evidence Act 2008.
B.3. The application for an adjournment
Mr Kuksal then applied for an adjournment of at least a week so that Avant-Garde would have time to prepare a response to the material in Mr Bolden’s affidavit and time to obtain a legal practitioner to appear at the hearing. I refused this application. I had advised Mr Kuksal that I was prepared to assume that he had an argument that, if accepted, would be exonerating of his behaviour, but that I did not intend to make factual determinations in that respect because I considered that the relevant issue was instead whether or not issues had arisen on other occasions. I indicated that Avant-Garde should prepare and circulate any material on which it sought to rely, and consideration could then be given as to whether or not to permit it to be filed.
It is to be remembered that Avant-Garde has been ordered to vacate premises owned by Five Fish. Five Fish wishes that order to take effect. Avant-Garde has been given urgent interim relief pending the hearing of its application for interlocutory relief until hearing of the application for leave to appeal. It is important that the application be heard promptly.
B.4. The application for leave to appear
In the context of the above discussions, I indicated to Mr Kuksal that I was of the preliminary view that he ought not to be granted leave to appear for Avant-Garde on 13 October 2021, but that this was not a concluded view. I conveyed this so as to prevent any surprise, or argument that Avant-Garde had been prejudiced, if, at the commencement of the hearing on 13 October 2021, I ruled against him. I noted that no material had been filed in support of his application, notwithstanding that Avant-Garde had been required to file and serve the material upon which it sought to rely by noon on 6 October 2021.
Mr Kuksal said that he had not appreciated that the earlier date applied to this application too. This was, to some degree, understandable. Mr Kuksal also said that his intention had been instead to file the material relevant to that application the night before the hearing. He said that it would not be worthwhile filing the material earlier than the night before, and he asserted that Five Fish would not be prejudiced because there would be nothing that it could say in response to evidence directed at showing that Avant-Garde had not been able to retain a barrister. I do not accept that; Five Fish could well have responded to such evidence with its own evidence demonstrating, for example, that there were barristers available.
Mr Kuksal applied for a ruling that I would only decide on whether or not to give him leave to appear for Avant-Garde after he had made the submissions that he wished to make on the application for the interlocutory relief. His suggestion, as I understood it, was that if, after hearing full argument on the substance of the matter, I ruled that he ought not to have leave to appear, then I ‘strike’ the submissions that he had made ‘off the record’, and that then a legal practitioner could be retained to present submissions (again). This was, in my view, a clearly inappropriate course.
I asked Mr Kuksal if he wished to make the application then and, if not, when he wanted to make the application. This allowed him, if he wished, to avoid the situation of only having the application heard at the commencement of the substantive application. He said that he did wish to make it then, that is, on 11 October 2021. It emerged, however, that his intention was to make the application on 11 October 2021, but, if unsuccessful, simply to renew the application on 13 October 2021. He contended that he was entitled to do this because it was an interlocutory application. I indicated that a fresh application would not be entertained if it would amount to an abuse of process. In those circumstances, the application was not pursued on 11 October 2021. No request was made to have it determined prior to 13 October 2021. The matter was left at that.
B.5. The application that there be no oral addresses by either party
After the discussion in relation to the anticipated application that Mr Kuksal have leave to appear for Avant-Garde, Mr Kuksal applied for an order that the matter proceed on 13 October 2021 on the papers with neither party being permitted to address the Court orally. His proposal was that Avant-Garde would circulate submissions at or before 10:30am on 13 October 2021, Five Fish could circulate submissions a couple of hours later, and then Avant-Garde could circulate submissions in reply a couple of hours after that, but no-one would address the Court. He asserted that there could be no prejudice to Five Fish if this proposal were followed.
The application was opposed. I dismissed it. I consider that it would not be in the interests of justice to deny to Five Fish the right to address me orally, or to deny myself the opportunity of directing questions at parties if they are properly represented in the proceeding (whether that be by a lawyer or someone in respect of whom leave had been given). Also, I consider a process whereby written submissions are circulated in real time, as it were, would likely lead to confusion and difficulties, was probably unworkable, and would not promote the efficient disposition of the matter.
B.6. The application for leave to prepare and to file further material
Mr Kuksal sought leave to file further material outside the time set out in the earlier order. He sought additional time to do so. I indicated that I would not at that stage adjourn the hearing of the substantive application listed for 13 October 2021, nor would I give Avant-Garde leave, in advance, to file further material. I indicated to Mr Kuksal that such further material as they wanted to rely on should be prepared and circulated, and I would consider an application for leave to file it when the material had been compiled.
Given that some time had been spent during the day on these applications, by consent, I extended the time for filing submissions from 5pm on 11 October 2021 to 9:30am on 12 October 2021.
C. The events on 13 October 2021
For completeness, I should note that when the matter came before me on 13 October 2021, Avant-Garde appeared by counsel, and applied for an adjournment of the application for the interlocutory relief on the basis that counsel was not in a position to present the argument because she had only recently been engaged. The matter was resolved with the application for the interlocutory relief not having to be determined. The order made had the effect of permitting Avant-Garde to remain in possession of the premises pending the hearing of its application for leave to appeal or further order, but in circumstances where:
(a) Avant-Garde undertook to pay an amount equivalent to the amount payable as rent under the lease each month; and
(b) an order was made that, in the event that that undertaking was not complied with, then, after three days’ grace, the stay would be discharged and the VCAT order would be in force.
Five Fish then applied for costs. At that point, Avant-Garde’s counsel’s instructions were withdrawn. The matter was stood down. Mr Kuksal then sought leave to appear for Avant-Garde to oppose a costs order being made against it. I granted that leave, again making it clear that I was granting leave only for the purpose of the hearing of that application on that day. I ordered costs against Avant-Garde.
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