Kuksal v Mioch (Reopening and Recusal Applications)

[2024] VSC 252

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:	17 May 2024
CASE MAY BE CITED AS:	Kuksal v Mioch (Reopening and Recusal Applications)
MEDIUM NEUTRAL CITATION:	[2024] VSC 252

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JUDICIAL REVIEW – Declarations – Practice and procedure - Application to reopen proceeding after judgment delivered and orders made – Application for recusal of judge – Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	On the papers
For the Defendants

HIS HONOUR:

1. On 20 December 2023, I ordered that this proceeding be stayed until the determination of the remaining charges against the plaintiff, Shivesh Kuksal, in Magistrates’ Court proceeding no. K12128195 (the Mioch Proceeding), which involved the prosecution of those charges and the determination of any appeal from, or judicial review of (including application for declarations), the determination of those charges.[1] I concluded that no basis or justification  had been established for this Court to interfere with the conduct of the Magistrates’ Court proceeding. I dismissed the plaintiff’s application to reopen the hearing following my reservation of judgment on 31 May 2023, an application which I heard on 9 and 10 November 2023. I dismissed the plaintiff’s application to rely on ‘Recently Discovered Evidence’, refused his application to rely on proposed amended originating motions, and refused his applications for  other orders sought in a document dated 26 April 2023  titled ‘the Plaintiff’s Proposed Orders’.[2]

   [1]Kuksal v Mioch [2023] VSC 624 (‘Reasons’).

   [2]Reasons [112]-[117], [122]–[145].

1. In orders of 20 December 2023, I directed the parties to make in writing any submissions about the costs of and incidental to the hearings on 30 and 31 May 2023, and 9 and 10 November 2023. The defendants made submissions in accordance with those directions, but the plaintiff did not.

1. On 29 January 2024, the day on which further hearings were to commence in the Magistrates’ Court, the Victorian Government Solicitor’s Office (‘VGSO’) informed that Court and Mr Kuksal that the informant had recently advised them that Protective Services Officer Colin Benning, a witness in the prosecution, had recently passed away. Mr Benning had been involved in the incident that led to the prosecutions. VGSO stated that:

In light of same and after careful further consideration, we are of the view that it is no longer in the public interest to proceed with the remaining charges, that is, charges 2 and 3.  We intend to make a formal application to withdraw both charges on Monday 29 January 2024.

1. Later that day, Mr Kuksal sent an email to the Magistrates’ Court attaching a screenshot of the Supreme Court Probate Records database that he said provided evidence that Mr Benning had died on approximately 9 October 2023. Amongst other things, he contended that the VGSO had misled the Supreme Court in relation to the viability of the Mioch prosecution in the hearings on 9 and 10 November 2023.  On 30 January 2024, Ms Xu, the second plaintiff in another proceeding involving Mr Kuksal (the Olney proceeding),[3] emailed the Court in a separate proceeding commenced by Mr Kuksal,[4] stating that the previous day, Mr Kuksal had opposed charges 2 and 3 in the Mioch Proceeding being dropped by the VGSO, and that the Magistrates’ Court was hearing applications by Mr Kuksal that the prosecution be found in contempt for failing to comply with disclosure orders and that the informant be tried for perjury for making false affidavits. Ms Xu advised that the proceeding was listed for a contest mention on 31 January 2024. She alleged that the VGSO was aware of Mr Benning’s death, and aware that the prosecution in the Mioch proceeding had no prospect of success at least as early as October 2023, and that it had unlawfully withheld this information from the Supreme Court.

   [3]Kuksal v State of Victoria S ECI 2022 04808.

   [4]Kuksal v Magistrates’ Court of Victoria S ECI 2022 05407.

1. On 2 February 2024, Mr P Ansell, on behalf of Mr Kuksal, wrote to the lawyers for the parties in this proceeding, referring to the information about Mr Benning’s death, and stating:

In light of the matters raised above, it is Mr Kuksal’s position that the Ginnane Mioch judgment [of 20 December 2023] had been obtained by equitable fraud perpetrated on the Court and Mr Kuksal and ought to be set aside in the interests of justice.

Accordingly, Mr Kuksal intends to file [a] summons in the Mioch Review Proceeding imminently to call upon an urgent hearing to have the Ginnane Mioch  judgment set aside without delay.

This matter is of considerable urgency on account of the consideration of the statute of limitations that may apply in relation to some of the tort claims that Mr Kuksal intends to bring against the State and related parties.

Mr Ansell sought the consent of the parties to set aside the judgment of 20 December 2023.

1. In an email to the Court on 4 March 2024 in the Olney proceeding, Mr Kuksal contended that the plaintiffs had identified evidence 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. He contended that the defendants bore direct responsibility for the plaintiffs’ inability to make their applications earlier and that the plaintiffs wished to file evidence about that issue. The plaintiffs asserted that  the 20 December 2023 decisions had been made contrary to law and alleged that the defendants had ‘weaponised’ those decisions, in an unconscionable manner, in order to inflict oppression on them and abrogate their fundamental human rights in the Supreme Court and Magistrates’ Court proceedings.

1. In the same email, the plaintiffs, being Mr Kuksal and Ms Xu, sought my recusal from further involvement in this proceeding and the Olney Proceeding.[5] The plaintiffs asserted that the Court’s orders of 20 December 2023 were capable of being perceived as having been made in reckless disregard of the Court’s obligations and the plaintiffs’ rights, the public interest, and the necessity to preserve public confidence in the administration of justice. The plaintiffs asserted that the orders were capable of leading to a reasonable apprehension that I had attempted to give effect to preconceived decisions through my orders that betrayed the precepts of the exercise of judicial power emanating from the Commonwealth Constitution. The plaintiffs contended that, because of the criminal nature of the proceeding, they had a right to have their applications heard in open court, on evidence. They sought directions for their applications and a reasonable time to prepare evidence.

   [5]See Kuksal v State of Victoria [2023] VSC 625.

1. 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.

1. Mr Kuksal did not file any such memorandum, although he and Ms Xu, the plaintiffs in the Olney proceeding, did so in that proceeding. However, the contents of the emails that I have described above suggest that Mr Kuksal still seeks to have the judgment and orders of 20 December 2023 in this proceeding reopened and that I recuse myself. I will now consider those applications.

1. Nothing in the plaintiff’s emails or those on his behalf sent to the Court provides a basis for me to permit him to make an application that I recuse myself or to file further material in support of such an application. Rather, the plaintiff’s emails and those sent on his behalf, appear to describe challenges to my judgment, which if they were to be pursued, could only be pursued by a valid appeal.

1. Secondly, nothing that the plaintiff has raised in the emails provides a basis for the Court to consider reopening its judgment, or justifies the Court permitting the plaintiff to file an application seeking such an order or to file further material in support of such an application.

1. I do not consider that the defendants should be called on to respond to the plaintiff’s proposed applications as no basis for them has been established. The Civil Procedure Act 2010 requires the Court to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[6] That overarching purpose would not be achieved by the Court permitting repeated applications to reopen proceedings or judgments with the resulting necessity for opposing parties to participate and repeat submissions previously made when the basis of those applications is contrary to a fundamental principle that this Court will not permit the fragmentation of prosecutions in the Magistrates’ Court save in special or exceptional circumstances. The Court has power to require litigants who are seeking to reopen proceedings or hearing or seeking recusal orders to explain, in the first instance, how they have an arguable case for such orders, before it calls on the opposing parties to spend the time and money to respond.[7]

   [6]Civil Procedure Act 2010 (Vic) s 7(1).

   [7]Civil Procedure Act 2010 (Vic) ss 47, 49.

1. I stated my conclusions about the plaintiff’s proceeding in my judgment of 20 December 2023 as follows:

After considering the parties’ submissions, I have concluded that the Court should grant a temporary stay of this proceeding until the Magistrates’ Court has determined the criminal charges and any appeal from, or judicial review application of, that determination has been decided.  I consider this to be the appropriate order based on the principle against the fragmentation of criminal proceedings.  In addition to permit this proceeding to proceed while the Magistrates’ Court prosecutions are ongoing would be an abuse of process.[8]

[8]Reasons [88].

1. In my judgment, I took into account that the Magistrates’ Court was the court with the responsibility to hear the prosecutions and could deal with all of the procedural and evidentiary issues that arose, including whether it possessed jurisdiction to hear and determine the charges. Many of the issues that the plaintiff sought to raise involved matters of fact that were for the Magistrates’ Court to decide if it considered them relevant.[9]

   [9]Reasons [89].

1. I also considered that to make orders that the plaintiff sought would result in this proceeding becoming an inappropriate ‘rolling’ judicial review proceeding, or a ‘rolling’ proceeding seeking declaratory relief.[10]  The plaintiff would be seeking to add issues in this proceeding in reliance on matters that had occurred in the Magistrates’ Court proceeding while it progressed. I did not accept that this proceeding should be treated as if it was subject to the rules governing criminal proceedings.

   [10]Reasons [91].

1. The significance of Mr Benning’s death, after judgment in this proceeding was reserved on 31 May 2023, to the continuation of the prosecutions was for the Magistrates’ Court to determine after hearing from the parties. This Court does not take over the duties of the Magistrates’ Court and only intervenes in the conduct of proceedings in that Court that are  continuing  in special or exceptional circumstances. If I had been informed of Mr Benning’s death before I delivered judgment on 20 December 2023, I would have considered that any consequences of that event for the prosecutions were for the Magistrates’ Court to determine.

1. If the Magistrates’ Court has given the prosecution leave to withdraw the charges against Mr Kuksal, that has no consequence for the proposed applications that I am now considering which concern my judgment of 20 December 2023. That judgment was based on the evidence then before the Court, when the charges were still in existence.

1. I therefore dismiss Mr Kuksal’s application that he be permitted to apply, including by filing further material, for orders that the judgment and orders of 20 December 2023 be set aside and that I recuse myself  from further involvement in the proceeding.

Costs

1. The plaintiff has made no submission about the costs involved with the hearings in this proceeding on 26 April,[11] 30 and 31 May, and 9 and 10 November 2023. Instead the plaintiff has sought leave to make the recusal application and to reopen the proceeding and the judgment of 20 December 2023. The Court must determine those costs issues. I will give the plaintiff a final opportunity of 14 days to make any submissions regarding those costs. If he makes such submissions, I will then direct that the defendants have a right to reply to them. If he does not make any submission I will proceed to determine the question of costs without further notice.

[11]The hearing on this date was concerned with this proceeding, and not proceeding S ECI 2022 04808 as was suggested by the order of 20 December 2023.

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