Kuksal v Mioch (Costs) - [2024] VSC 673

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 1^st-9^th, 11^th and 14^th Defendants	Mr A Imrie	Victorian Government Solicitor’s Office
For the 12^th and 13^th 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 1^st-9^th, 11^th and 14^th defendants, application for a temporary stay of this proceeding until the prosecutions, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 673
Decision Date: 1 November 2024

CaseChat Overview and Summary

The plaintiff, Kuksal, filed an application for a temporary stay of proceedings against the defendant, Mioch, and subsequently sought to amend the originating motion and join additional defendants. Following the dismissal of these applications, the plaintiff filed a further application to reopen the proceedings. The defendant applied for costs under the Civil Procedure Act 2010, arguing that the plaintiff's conduct was unreasonable, including the delay in presenting the applications, the volume of material filed, and breaches of overarching obligations. The court was tasked with determining whether the plaintiff's conduct warranted an order for costs.

The court considered the statutory provisions under the Civil Procedure Act 2010, particularly sections 18, 23, 24, and 25, which allow for an order of costs in cases of unreasonable conduct. The key issue was whether the plaintiff's actions were unreasonable, leading to the imposition of costs. The court examined the plaintiff's delay in presenting the applications, the volume of material filed, and any breaches of overarching obligations. It also considered the plaintiff's reasons for the delay and the impact on the proceedings.

The court found that the plaintiff's conduct was indeed unreasonable, resulting in the imposition of costs. The plaintiff's delay in presenting the applications, the significant volume of material filed, and breaches of overarching obligations all contributed to the unreasonable conduct. The court emphasised that the plaintiff's actions led to an inefficient use of court resources and imposed costs on the defendant. The plaintiff's reasons for the delay were not sufficient to excuse the unreasonable conduct.

The court ordered the plaintiff to pay the defendant's costs of the interlocutory applications, including the costs of the unsuccessful applications to amend the originating motion, join additional defendants, and reopen the proceedings. The order reflected the court's finding that the plaintiff's conduct was unreasonable and warranted the imposition of costs.

Orders