Kuksal v Mioch (Costs)
[2024] VSC 673
•1 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 00183
| SHIVESH KUKSAL | Plaintiff |
| v | |
| JAMES MIOCH (and others according to the attached Schedule) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 1 November 2024 |
CASE MAY BE CITED AS: | Kuksal v Mioch (Costs) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 673 |
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JUDICIAL REVIEW – Costs – Interlocutory applications – Costs of temporary stay of proceeding – Costs of plaintiff’s unsuccessful applications to amend originating motion and join additional defendants – Costs of plaintiff’s unsuccessful reopening application – Plaintiff taking unreasonable time to present applications – Voluminous material filed – Breaches of overarching obligations – Civil Procedure Act 2010 ss 18, 23, 24, 25.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the 1st-9th, 11th and 14th Defendants | Mr A Imrie | Victorian Government Solicitor’s Office |
| For the 12th and 13th Defendants | Mr L McAuliffe | Corrs Chambers Westgarth |
| For the Proposed 25th and 26th Defendants | Ms M Cananzi | Victorian Government Solicitor’s Office |
HIS HONOUR:
This judgment decides the questions of costs following the orders made and judgment delivered on 20 December 2023 (‘the principal judgment’).[1] I then refused the plaintiff’s (Mr Kuksal’s) application for declarations about the meaning and operation of the Court Security Act 1980, that his arrest was unlawful and about decisions and rulings in the Magistrates’ Court hearings of charges laid against him following an incident at the Victorian Civil and Administrative Tribunal building on 19 March 2019 (‘the prosecutions’).
[1]Kuksal v Mioch [2023] VSC 624 (‘Reasons’).
The plaintiff was charged with four charges. Charge 1 was that the plaintiff, at Melbourne on 19 March 2019, did resist PSO Colin Benning and PSO Brendan Smith, both emergency workers on duty, knowing or being reckless as to whether they were emergency workers in breach of s 31(1)(b) of the Crimes Act 1958. Charge 2 was that the plaintiff at Melbourne on 19 March 2019 did resist PSO Brendan Smith and PSO Colin Benning, emergency workers on duty, in breach of s 51(2) of the Summary Offences Act 1966. Charge 3 was that the plaintiff, at Melbourne on 19 March 2019, did refuse to comply with a direction given by an authorised officer in breach of s 3(2B) of the Court Security Act 1980. Charge 4 was that the plaintiff, at Melbourne on 19 March 2019, did resist PSO Brendan Smith, an emergency worker on duty, knowing or being reckless as to whether he was an emergency worker, in breach of s 31(1)(b) of the Crimes Act 1958. After charges 1 and 4 were withdrawn on 14 March 2023, charges 2 and 3 remained to be determined.
I granted the prosecution defendants’, the 1st-9th, 11th and 14th defendants, application for a temporary stay of this proceeding until the prosecutions, and any appeal or judicial review thereof, were determined. I did so in particular because this proceeding was likely to fragment the hearing and determination of the prosecutions. I refused the plaintiff’s application to amend his originating motion and join additional defendants and for various orders against the 12th and 13th defendants, who are the Victorian Legal Services Board (‘the Board’) and the Victorian Legal Services Commissioner (‘Commissioner’), including for discovery and release of documents.
I also dismissed the plaintiff’s later application to reopen the hearing which had concluded when I reserved judgment on 31 May 2023. I heard that application on 9 and 10 November 2023. I dismissed the plaintiff’s application to rely on new evidence and to rely on a proposed amended originating motion (‘PAOM’), for the grant of permission to issue subpoenas to make up for the absence of a discovery order and for the scheduling of an urgent hearing to determine the Magistrates’ Court jurisdiction to hear the charges. I also rejected the plaintiff’s argument that the earlier hearings had been conducted on the misapprehension that they were civil proceedings when they were criminal proceedings.
My orders of 20 December 2023 required the parties to make written submissions about the costs of, and incidental, to the hearings on 30 and 31 May 2023, and 9 and 10 November 2023 (‘the hearing days’), on which the relevant applications were heard. The defendants who were represented on those hearing days did so, but the plaintiff did not.
In March 2024, the plaintiff made a further reopening application asserting that the defendants had engaged in an unlawful conspiracy to pervert the course of justice and had successfully perpetrated equitable fraud on the Court in obtaining the orders of 20 December 2023. The plaintiff also applied for my recusal from any further determination of this proceeding. On 18 March 2024, I ordered that:
1. By 9am on 22 March 2024, the plaintiff may file and serve a memorandum of no more than 8 pages summarising any application that he would make, if the Court granted him leave to do so:
a. in respect of his Honour’s judgment and orders of 20 December 2023;
b. that his Honour recuse himself from further determination of this proceeding.
2. Following receipt of any such memorandum from the plaintiff in accordance with paragraph 1 of this order, his Honour will decide what further action (if any) should be taken arising from such memorandum.
On 17 May 2024, having considered the plaintiff’s submissions, and without considering it necessary to call on the defendants to respond, I refused that application and provided reasons.[2]
[2]Kuksal v Mioch(Reopening and Recusal Applications) [2024] VSC 252.
Costs’ submissions
By emails to the Court on 5 and 25 June 2024, the plaintiff stated that he would be relying on the same submissions that he had filed on 6 June 2024 in proceeding SECI 2022 04808, being Kuksal v State of Victoria. Thereafter, some of the defendants filed written submissions in reply under leave granted to them. The final submission was filed in July 2024. This lengthy process of receiving costs submissions has delayed the delivery of the judgment on costs.
An event to note at this point is that, after I had delivered the principal judgment, on 29 January 2024, when the hearing of the prosecutions was due to recommence in the Magistrates’ Court, the Victorian Government Solicitor’s Office (‘VGSO’) informed the Court and Mr Kuksal that the informant had recently advised them that PSO Colin Benning, a prosecution witness, had recently died. The VGSO stated that, in those circumstances, they had formed the view that it was no longer in the public interest to proceed with the charges and that they proposed to withdraw them. The charges did not proceed further.
I will next consider the question of costs of the hearing days. I will first summarise the plaintiff’s submissions although they were received after the defendants’ submissions.
The plaintiff’s submissions
As mentioned, on 25 June 2024, the plaintiff informed the Court by email that in this proceeding he relied on his costs submissions dated 6 June 2024, emailed to the Court in the Olney proceeding: Kuksal and Xu v State of Victoria. I will next summarise those submissions which are also applicable to this proceeding.
The plaintiff sought an order that the costs of the hearing days be costs in the proceedings. He relied on the Court’s decision of 20 December 2023 as being an interlocutory judgment based on the evidence available at that time and which did not finally resolve the core matters of substance underpinning the proceeding. The Court had not ruled upon his serious allegations of the defendants' interference in the judicial process and the judgment did not exonerate them. The costs of the applications were not wasted and an adverse costs order against the plaintiff may unfairly prejudice him. He did not cause the controversy which led to the proceeding and had no choice other than to take the steps he took. The defendants should not be allowed to profit by exploiting the peculiar circumstances, as that would be an affront both to the notions of human rights and the interests of justice.
Mr Kuksal submitted that any costs issues ought to be determined on the basis that this was a criminal proceeding and on whether the steps taken by the plaintiff were reasonable, adopting a holistic approach to the matter and exercising the costs discretion in accordance with rights under the Charter of Human Rights and Responsibilities.[3]
[3]The plaintiff relied on Jarrett v Seymour (1993) 46 FCR 521.
Mr Kuksal supported his reopening application by arguing that the interlocutory applications had been conducted under the misapprehension that the proceeding was a civil proceeding, whereas in fact it was a criminal proceeding. The Court had also misapprehended that s 49 of the Civil Procedure Act, which enables the Court to order and direct trial procedures and give directions for the conduct of the proceeding, had abrogated the operation of Chapter 3 of the Evidence Act 2008 concerning the admissibility of evidence. The plaintiff also repeated arguments that he put at the earlier hearing.[4]
[4]Principal judgment [136].
The Board and the Commissioner objected to the plaintiff being permitted to rely on costs submissions filed out of time, being the submissions circulated by email on 5 June 2024, and pointed out that the expenditure of their costs in responding to those submissions detracted from the Public Purpose Fund funding other services such as Victoria Legal Aid. However, if the plaintiff had filed his costs submissions as ordered, the Board and Commissioner would still have had to incur costs in replying to them. In addition, the Court exercises a discretion in deciding costs and generally prefers to consider the submissions of all parties. The plaintiff’s submissions were provided a few days after 31 May 2024, which was the final date that I had given the plaintiff to file submissions on costs. So I will take the plaintiff’s submissions into account in reaching my decision on costs.
I next consider the defendants’ costs submission.
The prosecution defendants sought orders that the plaintiff pay their costs on an indemnity basis of the originating motion and summons, including his application to reopen his case. They contended that the plaintiff’s conduct was unreasonable, in breach of the Court orders on 1 May and 24 May 2023, which imposed page limits of on affidavits and submissions filed, and in contravention of his overarching obligations under the Civil Procedure Act 2010. Between 1 May 2023 and 31 May 2023, the plaintiff provided to the Court and parties hundreds of pages of submissions and affidavits with thousands of pages of exhibits. They contended that the conduct was unreasonable, caused significant delays and prolonged the hearing of the interlocutory applications with associated increased costs. They further contended that this conduct contravened the overarching obligations, and that the plaintiff failed to narrow the issues in dispute and ensure costs incurred were reasonably proportionate to the issues in dispute.[5]
[5]Civil Procedure Act 2010 ss 23,24, 25.
The prosecution defendants also based their costs’ application on the plaintiff’s unsuccessful application to file an amended originating motion dated 10 May 2023 and join 34 additional defendants to the existing 15 defendants. I refused the applications. The PAOM was a cross between an originating motion and a submission, and sought to make additional claims against persons, including: the Director of Public Prosecutions; lawyers at the Office of Public Prosecutions; Police and Crown Prosecutors; solicitors from the VGSO; the Chief Commissioner of Police; and several police officers. The plaintiff alleged these persons were ‘culpable of prosecutorial misconduct and have acted in breach of their statutory duties’.[6] The plaintiff’s document contained many deficiencies: it challenged proposed defendants’ conduct without claiming a remedy or relief; it failed to identify the legal issues that it sought to have decided; it made generalised allegations against proposed defendants; and it challenged court rulings and sought findings that could only be relevant in a criminal trial and would, in effect, have resulted in this Court taking over the control of the prosecution.[7] Ultimately, when these deficiencies were raised with the plaintiff, he continued to rely on his existing originating motion.
[6]Reasons [112].
[7]Reasons [113].
The prosecution defendants also pointed to the plaintiff’s conduct after judgment was reserved on 31 May 2023 in requesting the Court on 7 June 2023 for an urgent hearing said to be required ‘to correct the record before the Court’. The Court directed the plaintiff to file an affidavit and submissions to support his claim, but he did not do so.
The prosecutions defendants submitted that during the plaintiff’s reopening application he repeated submissions made during the May hearings. His new arguments, for instance alleging that the May hearings had been conducted on misapprehensions of law, were misconceived and the fresh evidence that he sought to rely on was not relevant.
In the alternative, the prosecution defendants sought orders that the plaintiff pay their costs of the originating motion, including of their summons seeking a stay of the proceeding and of the plaintiff’s application for leave to reopen his case on a standard basis, up to and including 31 May 2023, and thereafter on an indemnity basis.
The Victorian Legal Services Board’s and Victorian Legal Services Commissioner’s application for costs
The Board’s and Commissioner also sought orders that the plaintiff pay their costs. They submitted that the plaintiff should pay their costs identified by a fixed costs order in the amount of $43,197.95 as detailed in their solicitor’s affidavit of, and incidental to, the hearings on 26 April, 30 and 31 May and 9 and 10 November 2023, and of his summons of 3 February 2023 accompanying his originating motion. A fixed costs order would avoid the time and costs associated with a taxation and thereby promote the overarching objectives of the Civil Procedure Act 2010. In the alternative, they sought indemnity costs to be assessed by the Costs Court.
The Board and the Commissioner’s case was that the plaintiff pay their costs of the hearing days based on his conduct of the interlocutory applications, including the reopening application. They contended that his conduct did not promote the just, efficient, timely and cost-effective resolution of the issues in dispute, nor avoid unnecessary delay so as to ensure that costs were proportionate to the issues in dispute as required by the Civil Procedure Act. Relevantly, the plaintiff had filed and served on the defendants voluminous material and written submissions often shortly before a hearing.
The Board and the Commissioner contrasted their approach to the hearings with the plaintiff’s. They argued that that they had attempted to engage with the plaintiff’s case in a cost-effective and efficient manner. They were publicly funded and disputed the plaintiff’s contention that they would gain an inappropriate profit if the Court awarded costs in their favour.[8] The Board and the Commissioner’s costs were properly incurred as they had to be represented at the hearings. They contended that the plaintiff’s argument that this was a criminal proceeding was incorrect.
The proposed 25th and 26th defendants
[8]Relying on their submissions in Kuksal v State of Victoria, S ECI 2022 04808.
The proposed 25th and 26th defendants, whom the plaintiffs sought to join as parties, were Court Services Victoria, (‘CSV’) and the then Chief Executive Officer of the Victorian Civil and Administrative Tribunal (‘VCAT’). They were represented to oppose their joinder, and I refused to order their joinder. They sought an order that the plaintiff pay CSV’s costs on a standard basis, fixed in the amount of $13,000, for professional fees and disbursements. As the proposed 26th defendant, was no longer the Chief Executive Officer of VCAT no order of costs in her favour was sought. The proposed 25th and 26th defendants relied on the fact that the plaintiff only sought their joinder during the hearing on 31 May 2023.
Analysis of costs submissions
I first emphasise that I am only deciding the costs of the interlocutory applications made on the hearing days. I am not deciding the costs of the entire proceeding.
Although the prosecutions that led to the plaintiff commencing this proceeding have ended as the charges have been withdrawn, this proceeding remains in existence. I have not decided whether it will or will not succeed. Rather, I have decided various interlocutory applications. The prosecution’s withdrawal of the remaining charges against Mr Kuksal following Mr Benning’s death has no bearing on the costs of these interlocutory applications. The withdrawals were not a concession about the merits of the charges when commenced because the prosecution’s decision was that the prosecutions should not continue without his evidence. It is important to emphasise that the Court is deciding what is the appropriate costs orders for interlocutory applications in this proceeding and not the appropriate costs orders for the prosecutions commenced in the Magistrates’ Court.
The Court’s power and discretion to award costs are contained in s 24 of the Supreme Court Act 1986. As I stated in the principal judgment, the proceeding was commenced under the Court’s civil rules of procedure and was heard in the Court’s civil jurisdiction.[9] So, I will decide the costs application on the basis that the interlocutory applications were civil applications.
[9]Reasons [130].
Often the costs of interlocutory application are reserved or made costs in the proceeding. Rule 63.20[10] deals with the costs of interlocutory orders and provides that, where no order is made on the application or where Court orders are silent as to costs, the costs are the parties’ costs in the proceeding, unless the Court otherwise orders. But, when it considers appropriate, the Court can make costs orders about interlocutory applications, for instance where the conduct of a party has unreasonably caused costs to be incurred.
[10]Supreme Court (General Civil Procedure) Rules 2015.
I take into account that the plaintiff represented himself, but he has done that in a number of proceedings in this Court.
I will next deal with the costs of the hearing days.
Costs of 30 May 2023
Much of 30 May was occupied by Mr Kuksal’s submissions about: the availability of declaratory orders; about the invalidity of the charges; and that particular Magistrates had made jurisdictional errors and in support of his applications for discovery and disclosure of documents by the Board and the Commissioner and also to amend the originating motion and join additional defendants. The plaintiff did not succeed in obtaining any of these orders.
The prosecution defendants’ stay application was mainly addressed on 31 May. I consider that the costs of that application should be reserved. It was an interlocutory application, which led to the granting of a temporary, but not a final, stay. The orders that I made granting the temporary stay were not final orders and thus I did not decide whether or not the plaintiff’s proceeding had any merit at all, because I was deciding the interlocutory applications argued on the hearing days. Submissions about the stay application, took approximately half a day in total. In making costs orders, I should attempt to make orders that can be practically applied by the Costs Court when making a costs assessment. This objective is more likely to be achieved if I allocate a half day for the stay application to the calendar day of 31 May, rather than attempting to allocate it to parts of 30 May, when it was mentioned, as well as to parts of 31 May when it was mainly argued. I therefore will specify half of 31 May as attributable to the stay application and reserve the costs of half of that hearing day.
Costs of 30 May and the remaining half of 31 May 2023
On 30 and 31 May, the plaintiff made submissions on the matters that I have mentioned in paragraph 32. The prosecution defendants, the Board and the Commissioner, and the proposed 25th and 26th defendants, completed their submissions on the stay application, on discovery and disclosure of documents and on declarations and proposed amendments to the plaintiff’s originating motion and joinder of parties. The plaintiff then replied for approximately an hour on the issues of fragmentation of criminal proceedings, jurisdictional issues and on disclosure of documents.
Mr Kuksal was unsuccessful in his interlocutory applications. In particular, I refused him leave to file and serve his proposed originating motion of 10 May 2023. It sought to make claims against many additional parties, and, if allowed, would have significantly fragmented the hearing of the prosecutions in the Magistrates’ Court and would have had the effect of this Court taking over the direction of those prosecutions.[11] It would have turned this proceeding it into a rolling review as I discussed in my principal judgment. Mr Kuksal sought declarations in this Court that particular conduct constituted a crime, but such applications could not be considered, at least until relevant facts had been proved or admitted.
[11]Reasons [140]-[143].
I refused Mr Kuksal’s proposed discovery orders which I considered were ‘clearly fishing and speculative about the existence of documents and extend[ed] considerably beyond the requirements of prosecutorial disclosure.’[12] Many of the documents that he sought had no direct connection with the prosecutions in the Magistrates’ Court.
[12]Reasons [107].
The plaintiff’s unsuccessful interlocutory applications wasted the defendants’ and at least some of the proposed defendants’, time and increased costs and by lengthening the hearings affected other litigants waiting for their cases to be heard. The plaintiff’s submissions occupied much greater time than the defendants’. The defendants took approximately an hour and a half to make their submissions, while the plaintiff took about six hours. Conduct which causes loss of time to the Court and to other parties can justify the order of costs on an indemnity basis.[13] The plaintiff relied on voluminous materials, but such conduct was inconsistent with my orders which limited the page numbers of affidavits filed by a party and with the obligations imposed by the Civil Procedure Act, including to narrow the issues in dispute, s 23; ensure costs were reasonable and proportionate; s 24; and to minimise delay, s 25.
[13]Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 [7(iii)].
I consider that the plaintiff should pay the prosecution defendants’ costs on a standard basis of the other half of 31 May and indemnity costs of 30 May. I make that indemnity costs order because a hearing which should have only taken one day was extended to a two day hearing because of the many unmeritorious applications that the plaintiff made, especially the joinder applications.
I consider that I should make similar orders for the costs of the Board and Commissioner as I will make for the prosecution defendants’ costs. They were entitled to be represented on the hearing days. They successfully opposed the plaintiff’s application for discovery and disclosure of documents. Their costs of half of 31 May should be reserved and, for the reasons that I have given, that half day should be treated as directed at the stay summons. The plaintiff should pay the Board’s and Commissioner’s standard costs of, and incidental to the second half of 31 May, but their costs of 30 May on an indemnity basis. More than half the two days were occupied by the plaintiff’s unsuccessful applications for declarations about the invalidity of the criminal charges and the Magistrates’ Court’s jurisdiction, for leave to deliver an amended originating motion and join numerous additional parties and for discovery and disclosure of documents. The documents filed by the plaintiff breached Court orders in page length and breached the overarching obligations imposed by the Civil Procedure Act as I have discussed above when considering the prosecution defendants’ costs.
While the costs of unsuccessful interlocutory applications may sometimes be reserved or made costs in the proceeding, the features of the plaintiff’s unsuccessful applications to which I have referred, make it appropriate that the plaintiff be ordered to pay a substantial part of the defendants’ costs, in the terms that I have decided.
Costs of reopening applications of 9 and 10 November 2023
I refused the plaintiff’s reopening application which was heard on 9 and 10 November. For the reasons I gave in my principal judgment,[14] I considered that he should not be permitted to rely upon new information or evidence as he sought because that would not have altered my decision. I also considered that this Court would not grant the declarations that the plaintiff sought and that to permit a reopening of this proceeding might fragment the criminal prosecutions and turn this Court into the manager of the Magistrates’ Court prosecutions. There was no merit in the reopening application, and it put the defendants to unnecessary costs. The plaintiff’s reopening application also breached the overarching obligations contained in ss 18, 23, 24 and 25 of the Civil Procedure Act. Conduct which causes loss of time to the Court and other parties can lead to an order for indemnity costs against the party responsible.[15] This is such a case. The plaintiff should be ordered to pay the prosecution defendants’, the Board’s and the Commissioner’s costs of the reopening application of 9 and 10 November 2023 on an indemnity basis.
[14]Reasons [140]-[143].
[15]Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7(iii)].
As the reopening applications in this proceeding and in the State of Victoria proceeding[16] were heard together on 9 and 10 November, I make it clear that my order that the plaintiff pay part of the prosecution defendants’, Board’s and Commissioner’s costs on an indemnity basis relates only to costs of and incidental to those days in connection with this proceeding.
[16]Kuksal v State of Victoria, S ECI 2022 04808.
The Board and Commissioner’s application for a fixed costs order
It is not appropriate to award the Board and the Commissioner fixed costs as the amount that they claim appears to be all or a substantial part of their costs for the months of April, May and November 2023 and their disbursements. However, I have only awarded them indemnity costs for the hearing days of 9 and 10 November. In addition, the assessment of their standard costs of and incidental to the hearing on half of 31 May must be undertaken by the Costs Court in default of agreement. In those circumstances, it is inappropriate to make a fixed costs order for part of the Board’s and Commissioner's costs, rather the assessment of all the costs that my orders entitles them to should be undertaken by the Costs Court, in default of agreement.
Costs of proposed 25th and 26th defendants
Court Services Victoria and the Chief Executive Officer of VCAT were represented at the hearings, made submissions and successfully opposed the plaintiff’s application to join them as defendants.[17] The plaintiff had served them with notice of his application to join them as parties. The 25th defendant should receive its costs of opposing the joinder application[18] which I fix at $9750.00.[19] I fixed those costs in that amount, having taken into account that the 25th and 26th proposed defendants were represented by counsel on 30 and 31 May. I have taken into account the Court’s Scale of Costs in deciding that the costs that I have awarded are reasonable. The amount of $9750.00 is three quarters of the amount the proposed 25th defendant claimed, which amount I have reduced to take account of my order that half the costs of 30 May be reserved.
[17]Reasons [118].
[18]Costs were not sought on behalf of the proposed 26th defendant.
[19]The proposed defendants relied on the decision of Constantinidis v Kehagiadis [2010] NSWSC 1261 concerning the award of costs to proposed defendants who had been represented at the joinder application.
Postscript
The parties were notified yesterday that I would be delivering by email this cost judgment at 3:15pm today, 1 November 2024. At 1:39pm today, 1 November 2024, the second plaintiff emailed my chambers in the following terms:
Dear Associate,
We apologise for the late notice but owing to recent developments involving revelation of further misconduct by Victoria Police, the Victorian Legal Services Board and the IBAC, the Plaintiffs request that Justice Ginnane delay the delivery of the judgment until after His Honour has had an opportunity to hear consider the matters we raise.
We could not write to His Honour earlier owing to other court commitments.
We will be able to provide His Honour a summary of the matters (covering approx 10 pages) by 10:00 am on Wednesday, 6 November 2024.
We note that 5 November 2024 is a public holiday.
Lulu Xu
I refuse Mr Kuksal and Ms Xu’s application that I delay the delivery of this judgment. The plaintiffs’ have had ample time over many months to make any applications that they considered appropriate. This costs judgment has been delayed for many months in circumstances where the plaintiffs’ delayed in providing costs submissions and made reopening and recusal application which I dismissed on 17 May 2024. The costs judgment should be delivered. The plaintiffs’ email of this afternoon referring to ‘further misconduct’ by various entities suggests again that the plaintiffs misunderstand the purposes of this proceeding and, in particular, of this costs judgment. That purpose is not to conduct an inquiry into allegations of ‘misconduct’, but, in the case of this costs judgment, to decide the costs of interlocutory applications heard and determined last year.
Conclusion
I order the plaintiff to pay costs of the hearing days as follows:
(a) the prosecution defendants’, the Board’s and the Commissioner’s costs of and incidental to half the hearing day 31 May 2023 on a standard basis to be assessed by the Costs Court in default of agreement; and
(b) the prosecution defendant’s, the Board and Commissioner’s costs of and incidental to the hearing days of 30 May, 9 and 10 November 2023 on an indemnity basis to be assessed by the Costs Court in default of agreement.
I order that the plaintiff pay the proposed 25th defendant, Court Services Victoria, its costs of the joinder application fixed in the amount of $9,750.00.
I order that all parties’ costs of and incidental to half of the hearing day of 31 May 2023 be reserved.
The plaintiffs’ application made by email of 1 November 2024 at 1:39pm for the delivery of this judgment to be delayed is refused.
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SCHEDULE OF PARTIES
| BETWEEN: | |
| SHIVESH KUKSAL | Plaintiff |
| AND | |
| JAMES MIOCH | First Defendant |
| NICOLA STEVENSON | Second Defendant |
| BIANCA MOLETA | Third Defendant |
| BRENDAN SMITH | Fourth Defendant |
| COLIN BENNING | Fifth Defendant |
| JANINE WATSON | Sixth Defendant |
| BRODERICK WELLS | Seventh Defendant |
| PAUL HARRIS | Eighth Defendant |
| ANDY YAP | Ninth Defendant |
| MAGISTRATE ROBERT STARY | Tenth Defendant |
| THE STATE OF VICTORIA | Eleventh Defendant |
| THE VICTORIAN LEGAL SERVICES BOARD | Twelfth Defendant |
| FIONA MCLEAY | Thirteenth Defendant |
| OFFICE OF PUBLIC PROSECUTIONS VICTORIA | Fourteenth Defendant |
| JUSTICE JACINTA FORBES | Fifteenth Defendant |
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