Kuksal v State of Victoria
[2025] VSC 72
•4 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04808
| Shivesh Kuksal & Anor (according to the attached Schedule) | Plaintiffs |
| v | |
| The State of Victoria & Ors (according to the attached Schedule) | Defendants |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 14–15 November 2024 |
DATE OF JUDGMENT: | 4 March 2025 |
CASE MAY BE CITED AS: | Kuksal v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2025] VSC 72 |
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ADMINISTRATIVE LAW — Declaratory relief — Declaration that Independent Broad‑based Anti‑corruption Commission (‘IBAC’) committed jurisdictional error or error of law — Complaint lodged with IBAC — IBAC initially refused to investigate plaintiffs’ complaint — IBAC subsequently opened investigation into plaintiffs’ complaint — Failure by plaintiffs to articulate claim — Where plaintiffs did not comply with procedural directions — No error of law identified — No utility in relief sought — Declaration refused — Supreme Court Act 1986 (Vic) s 36.
PRACTICE AND PROCEDURE — Application for adjournment by plaintiffs — Where plaintiffs did not comply with procedural directions — No proper grounds — Application part of a course of conduct by plaintiffs to delay and undermine administration of justice — Aggressive, rude and intimidatory behaviour of first plaintiff in courtroom — Application refused — Karam v Palmone Shoes Pty Ltd [2012] VSCA 97, considered.
PRACTICE AND PROCEDURE — Request to play four‑hour audio recording at hearing by plaintiffs — Where evidence would not make any difference to status of facts in all the circumstances — Where opportunity provided to plaintiffs to file recording with Court separately — Request refused.
PRACTICE AND PROCEDURE — Application for recusal of presiding judicial officer by plaintiffs — Where first plaintiff was removed from courtroom due to rude, aggressive and intimidating conduct — Where first plaintiff arrived late to Court — Claim of apprehended bias — Refusal of plaintiffs to accept Judge’s rulings in proceeding — Application refused — Civil Procedure Act 2010 (Vic) ss 7(1), 8(1), 19, 20, 22, 23, 25 — Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | In person | |
| For the First Defendant | No appearance | |
| For the Second Defendant | No appearance | |
| For the Third Defendant | No appearance | |
| For the Fourth Defendant | Mr J Brereton Ms A Armstrong | Solicitors of the Independent Broad‑based Anti‑corruption Commission |
HER HONOUR:
INTRODUCTION
By this proceeding the plaintiffs, Shivesh Kuksal and Lulu Xu, seek declaratory relief against the fourth defendant, the Independent Broad‑based Anti‑corruption Commission (‘IBAC’). On 5 April 2022, IBAC dismissed the plaintiffs’ complaint in respect of events which occurred on 6 January 2022.
The proceeding was originally initiated against a number of defendants in addition to IBAC. However, the claims brought against the first, second and third defendants, being the State of Victoria, the Magistrates’ Court of Victoria (‘Magistrates’ Court’) and the Victorian Legal Services Board (‘VLSB’) respectively, have all been stayed by earlier orders of this Court.[1]
[1]See Kuksal v State of Victoria [2023] VSC 625.
The trial before me proceeded on an amended originating motion which only dealt with the declarations sought by the plaintiffs against IBAC.[2]
[2]This amended originating motion for judicial review was filed 21 January 2024 pursuant to the orders of Justice Ginnane made on 20 December 2023.
BACKGROUND
The factual background giving rise to this proceeding begins on 6 January 2022 when Victoria Police officers executed a search warrant issued by the Magistrates’ Court at a premises in Point Cook and arrested the plaintiffs.
Charges were then brought against the plaintiffs in the Magistrates’ Court.[3] The plaintiffs were charged with dishonesty offences in respect of furniture which was to be transported interstate, including obtaining property by deception and theft. Mr Kuksal was also charged with committing an indictable offence, theft, whilst on bail.
[3]Magistrates’ Court of Victoria proceedings N 1004 7659 and N 1025 4563.
On 7 January 2022, the plaintiffs were granted bail by a Magistrate.
In November 2023, the prosecution withdrew the charges against Ms Xu and they were struck out. At that time, the prosecution informed Mr Kuksal that it anticipated ‘fil[ing] further charges against [him] prior to the committal hearing, rather than seeking leave to amend charges which are currently laid.’
On 19 January 2022, Mr Kuksal made a complaint to IBAC about the events of 6 January 2022 which IBAC decided not to investigate (the ‘initial complaint’). It is this IBAC decision which is the genesis of the claim for declaratory relief.
Progress of the plaintiffs’ complaint to IBAC
Mr Kuksal made the initial complaint to IBAC by email, the subject matter of which was the police actions on 6 January 2022 and the officers’ associated conduct. This email referred to Mr Kuksal’s conversation with one of the IBAC officers on 10 January 2022 and the email contained a link to a Dropbox folder which was alleged to contain ‘evidence of corrupt conduct by members of Victoria Police’. The complaint alleged that the evidence demonstrated ‘instances of serious professional misconduct and unlawful activities by members of Victoria Police’.
Between 25 January and 7 February 2022, Mr Kuksal sent various materials to IBAC in support of his complaint.[4]
[4]Second Affidavit of Chloe Armstrong (filed 21 June 2023 in S ECI 2022 04808, Supreme Court of Victoria), [14].
By letter dated 5 April 2022, the Director of IBAC’s Assessment and Review team informed Mr Kuksal that IBAC had decided not to investigate or refer his complaint to another agency for investigation. Separately, the plaintiffs had made a complaint to IBAC in respect of the VLSB, which IBAC dismissed.[5] The letter of 5 April 2022 relevantly stated as follows:
[5]Fifth Affidavit of Chloe Armstrong (filed 14 March 2024 in S ECI 2022 04808, Supreme Court of Victoria), [7].
IBAC’s decision regarding your complaint
IBAC has decided not to investigate or refer your complaint to another agency for investigation. IBAC decides to not take further action in relation to a complaint for a number of reasons, which are set out in legislation, specifically section 67 of the Independent Broad‑based Anti‑corruption Commission Act 2011 (IBAC Act). In general, IBAC prioritises investigations into allegations of serious or systemic public sector corruption and police misconduct, that appear to have enough merit to investigate, and which involve matters not previously dealt with by IBAC or another agency.
…
Decision about whether the complaint is a public interest complaint
IBAC is required to assess whether complaints we receive are public interest complaints under the Public Interest Disclosures Act 2012 (PID Act). The purpose of this assessment is to determine what confidentiality obligations apply to your complaint.
In this instance, IBAC has determined that the matter is not a public interest complaint. This decision was made after consideration of the information provided. This decision was made in accordance with section 26 of the PID Act, particularly subsection 3. Specifically, the information doesn’t show or tend to show the public officer engaged in improper conduct or detrimental action.
This decision means that the confidentiality provisions under part 7 of the PID Act do not apply, and that IBAC may provide your identity, or contents of the complaint, to other agencies as appropriate. Although IBAC has determined your complaint is not a public interest complaint, you will still be entitled to the protections under part 6 of the PID Act. The enclosed fact sheet explains these protections.
The plaintiffs issued proceedings in this Court on 23 November 2022.
On 14 July 2023, IBAC applied to summarily dismiss the plaintiffs’ claim against it.
A number of directions hearings and orders have taken place in the management of the proceeding between May 2023 and the commencement of this trial.[6] This proceeding has a complicated trajectory which will not be repeated at any length here, save to say that his Honour Justice Ginnane delivered a careful and considered judgment in respect of a number of interlocutory matters including the plaintiffs’ application for leave to file a proposed amended originating motion and to join additional defendants, summonses brought by IBAC and the State of Victoria seeking to dismiss the proceedings, and the plaintiffs’ applications to reopen an earlier concluded hearing and to rely on what was said to be recently discovered evidence.[7]
[6]This includes 14 sets of orders by Judicial Registrars Keith, McCann and Baker and by Justice Ginnane, in addition to three interlocutory judgments of Justice Ginnane: Kuksal v State of Victoria [2023] VSC 438, Kuksal v State of Victoria [2023] VSC 625 and Kuksal v State of Victoria [2024] VSC 253.
[7]Kuksal v State of Victoria [2023] VSC 625.
Justice Ginnane heard IBAC’s application along with numerous other matters raised by the plaintiffs and the other defendants over eight sitting days between 28 July and 10 November 2023. His Honour delivered judgment on 20 December 2023, refusing the dismissal application and, inter alia, making orders staying the proceedings against the other three defendants. He refused the plaintiffs’ request to amend their originating motion and to join additional defendants.
In applying the test, being that the plaintiffs’ case has no real prospect of success within s 63 of the Civil Procedure Act 2010 (Vic), his Honour was not satisfied on two bases that the IBAC claim for summary dismissal was made out. His Honour identified as a possible jurisdictional error the potential failure of IBAC to understand the nature and extent of the matter that, as a decision maker, it was required to decide. There is an expectation that a discretionary power conferred by statute will be exercised reasonably.[8] His Honour stated at [150] that:
IBAC’s reasons for finding that the plaintiffs’ complaint was not a public interest complaint arguably suggest that it did not take into account the detail, or as Mr Kuksal put it, the seriousness of his complaint including that it concerned the actions of a number of public officers or police officers. By s 29(2) of the [Public Interest Disclosures Act 2012], IBAC was required to give reasons why it determined that Mr Kuksal’s disclosure was not a public interest complaint. In its reasons, it referred to a ‘public officer’, as distinct from the police officers or public officers about whose conduct Mr Kuksal appears to have complained.
[8]Ibid [152].
Thus his Honour concluded that it was arguable that the complaint was wider than IBAC understood. If IBAC had accepted the complaint, it might have found Mr Kuksal’s complaint was a public interest complaint and investigated it.[9]
[9]Ibid [151].
The second reason for refusing the summary dismissal application by IBAC was based on the plaintiffs’ claim that IBAC acted contrary to its obligations to consider the impact of its decisions on the plaintiffs’ human rights pursuant to s 38 of the Charter of Human Rights and Responsibilities (the ‘Charter’). His Honour noted that IBAC’s letter of 5 April 2022 made no mention of the plaintiffs’ Charter rights.[10] IBAC is required by s 29(2)(b) of the PID Act to give reasons for its decision or advice that Mr Kuksal’s disclosure was not a public interest complaint. The plaintiffs’ allegations of police conduct arguably required consideration of whether their Charter rights had been properly considered by the police.[11]
[10]Ibid [154], [158].
[11]Ibid [154]–[159].
His Honour rejected IBAC’s submission that Mr Kuksal’s complaint would lack utility if IBAC found that the complaint was a public interest complaint, as it would have been ‘funnelled’ into the corrupt conduct provisions of the IBAC Act and then been dismissed.[12] His Honour noted that whilst IBAC is entitled to prioritise investigations of systemic corrupt conduct, it must consider the nature and extent of complaints made to it in deciding whether they are public interest complaints. If this Court granted a declaration that IBAC has not properly considered whether the complaint was a public interest complaint and ordered IBAC to reconsider the complaint in its entirety, it cannot be assumed that IBAC would decide not to investigate it.
[12]Ibid [153].
In refusing IBAC’s application for summary dismissal, his Honour noted that:
It is important that I add that this part of my decision concerns IBAC’s application for summary judgement or dismissal of the proceeding for abuse of process only. My judgment should not be read as containing any view on whether the plaintiffs will ultimately succeed in the claims against IBAC. That is quite a different question.[13]
[13]Ibid [174].
In allowing the plaintiffs leave to include grounds B81.1 to B81.5 in a proposed amended originating motion, his Honour said that courts ‘may allow amendments or further attempts to formulate claims when they consider that litigants, especially self‑represented litigants, however experienced in litigation, have arguable claims that they have not yet appropriately specified,’ adding that this was ‘such a case’, but cautioning that he was not expressing any view as to whether the claims will actually succeed.[14]
[14]Ibid [161].
On 14 March 2024, IBAC wrote to Mr Kuksal referring to this proceeding and the initial complaint made by him relating to alleged police misconduct of 19 January 2022. The letter also addressed further complaints raised by Mr Kuksal, including alleged misconduct by the VLSB reported on 9 October 2022, further complaints of alleged police misconduct reported on 18 and 19 October 2022 and later on 31 July 2023 in respect of alleged police misconduct between July 2018–2023 (collectively, the ‘Complaints’).
The letter referred to the Justice Ginanne’s dismissal of IBAC’s summary dismissal application and advised that ‘[h]aving regard to the matters identified by the Court in its reasons, IBAC has commenced a process of assessing and/or reassessing each of the Complaints’. The letter invited Mr Kuksal to provide any further material he wished to be considered by IBAC by 26 March 2024.[15]
[15]The Fourth Defendant’s Court Book (filed 1 November 2024 in S ECI 2022 04808, Supreme Court of Victoria) (‘Court Book’), 30–1.
On 12 April 2024, IBAC again wrote to the plaintiffs in respect of the proceeding and IBAC’s assessment and/or reassessment of the Complaints. The letter noted that IBAC wrote to the plaintiffs on 14 March 2024 and invited them to upload information which they had previously asserted was relevant to the issues in the proceeding and any further information relevant to the Complaints. That invitation to upload information was not acted upon by the plaintiffs. The letter concluded:
Finally, as we have already noted, IBAC seeks to maximise the possibility that the assessment and/or reassessment process and the judicial mediation now listed for early May 2024 might resolve the issues in dispute. Please ensure any further information you provide is produced in a manner which is conducive to achieving the same objective.
On 16 May 2024, IBAC wrote to Mr Kuksal,[16] referring to the complaint that had been undergoing a reassessment regarding events related to 6 January 2022 and the subsequent conduct of Victoria Police officers directly related to the events of that day. The letter advised that IBAC had decided it would investigate the complaint. The letter also advised that IBAC had determined the information provided was a public interest complaint under the PID Act. The letter also contained warnings as to confidentiality under the IBAC Act, and protections and obligations that apply under Parts 6 and 7 of the PID Act.
[16]Court Book, 38–9.
IBAC also wrote to Ms Xu referring to the outcome of her complaint in relation to a police officer, events on 6 January 2022 and subsequent related events.[17] The letter advised that IBAC had decided it would investigate some allegations contained in her complaint and made the same warnings as to confidentiality under the IBAC Act. IBAC also advised that it had assessed her complaint to determine whether it is a ‘public interest disclosure’ and a ‘public interest complaint’ under the PID Act and advised that it had decided that the complaint was not a ‘public interest disclosure’ or a ‘public interest complaint’.
[17]Court Book, 41–2.
Despite the notification to the plaintiffs that their complaints after reassessment were being investigated, they have continued to pursue this litigation. As his Honour Justice Ginnane dismissed all of the plaintiffs’ applications and, save for the plaintiffs’ claim against IBAC (subject to an opportunity to amend the originating motion to reformulate their claims),[18] the remainder of the proceeding was stayed until the determination of criminal charges in the Magistrates’ Court against Mr Kuksal and any subsequent appeals or reviews of that determination.
[18]Kuksal v State of Victoria [2023] VSC 625, [160].
It follows from this interlocutory decision that the trial of the declaratory application against IBAC is the only claim before me.
PROCEDURAL MATTERS
Pre-trial procedural orders
On 14 August 2024, Judicial Registrar Baker made pre‑trial procedural orders (‘Baker JR’s Orders’) requiring the plaintiffs to file and serve a written outline of submissions for the purpose of the trial of their amended originating motion, any further affidavit material on which they intended to rely, and made reciprocal orders in respect of IBAC. Baker JR’s Orders provided for reply outline submissions by 25 October 2024. The parties were to confer and agree upon an e‑court book index and, by 7 November 2024, IBAC was to file and serve the e‑court book with indexes as settled by the parties in the usual form.
No written submissions as ordered by Judicial Registrar Baker were received on behalf of either of the plaintiffs. IBAC filed an outline of its submissions on 1 November 2024. The e‑court book was prepared by IBAC without the cooperation of the plaintiffs.[19]
Civil Procedure Act 2010 obligations
[19]Transcript of Proceedings, Kuksal v State of Victoria (Supreme Court of Victoria, S ECI 2022 04808, Quigley J, 14–15 November 2024), 17.
It is apposite to note the obligations imposed by the Civil Procedure Act 2010 (Vic) (‘CP Act’). All parties in civil litigation are subject to a paramount duty to the Court to further the administration of justice. The CP Act sets out the overarching obligations which apply to all litigants, including self‑represented litigants. This includes the obligation to only take steps to resolve or determine a dispute, to cooperate in the conduct of a civil proceeding, to use reasonable endeavours to resolve disputes, to narrow the issues in dispute, and to use reasonable endeavours to act promptly and minimise delay.[20]
[20]CP Act ss 19, 20, 22, 23, 25.
The overriding purpose of the CP Act in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute which a court must seek to give effect to in the exercise or interpretation of its powers.[21]
[21]CP Act ss 7(1), 8(1).
In making the procedural decisions and directions, the Court has kept this purpose and obligation at the forefront of its consideration.
Plaintiffs’ applications
At the trial, the plaintiffs’ sought to make three unsuccessful applications. First, to adjourn the trial. Second, to play four hours of audio recordings to the courtroom. Third, for my recusal as presiding judicial officer.
Plaintiffs’ adjournment application
At the commencement of the hearing, the plaintiffs sought an adjournment of the trial. Notwithstanding the plaintiffs were advised by the Supreme Court Registry that any application for adjournment was to be made on proper material, no material had been filed.[22] They made an oral application on the morning of the trial. The basis of the adjournment was as follows:
[22]On 6 November 2024, the Supreme Court Registry advised Mr Kuksal via email that the application was required to be made on summons with supporting affidavit.
(a) first, the plaintiffs alleged there were several new documents that IBAC had filed and sought to rely upon, including a summons which they were unaware of;
(b) secondly, the plaintiffs stated that they had lodged a notice of appeal on the morning of the trial against JR Baker’s Orders; and
(c) thirdly, Ms Xu separately argued that it would be more expeditious for the trial to occur once the Magistrates’ Court proceedings had been finalised, effectively allowing all four defendants to participate contemporaneously.
It was submitted by IBAC that this request for adjournment was part of a course of conduct by the plaintiffs that was abusive of the Court’s processes.[23]
[23]Transcript, 42–4.
In support of this contention, IBAC relied upon the Court of Appeal’s decision in Karam v Palmone Shoes Pty Ltd[24] which set out the parameters of leeway that a Court should give to a self‑represented litigant when deciding issues such as an adjournment application:
A self‑represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court’s already limited resources. There comes a point at which a self‑represented litigant must be required to take responsibility for his choices.[25]
[24][2012] VSCA 97.
[25]Ibid, [36].
IBAC further pointed to the attempts it made to engage with the plaintiffs in order to comply with Court orders, for example, during the preparation of the Court Book, IBAC sent a copy to the plaintiffs and asked if the plaintiffs had any additions, yet received no response.
A similarly non‑cooperative response by the plaintiffs followed the preliminary matter raised by the IBAC summons in respect of confidentiality orders sought under rr 28.05(4) and 28A.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the ‘Rules’).[26] The plaintiffs had been put on adequate notice of the IBAC request for orders at an early stage before the trial.
[26]The application was made on the basis of IBAC’s obligations under Part 7 of the PID Act, which includes that IBAC ‘must not disclose the content, or information about the content, of an assessable disclosure’. I granted the application and made the orders on 15 November 2024.
Given the contained subject matter of the proceeding, the state of the material before me, the lack of compliance with the pre‑trial orders for submissions and any additional evidence, and the lack of strength of the arguments put by the plaintiffs to support the late request for adjournment (matters about which they could have put on proper notice and supporting material), I was not satisfied that there was any compelling reason why the trial ought not proceed. I note that despite the lack of the plaintiffs’ compliance with the Court’s timetabling orders in preparation for the trial, IBAC was prepared to proceed. I am satisfied there was no prejudice identified to the plaintiffs. Any inability to conduct their case efficiently had been brought upon themselves in their conduct of the proceeding. If anything, the course of conduct of the plaintiffs demonstrated to me an attempt by them to delay and undermine the timely and efficient administration of justice.
The adjournment was refused and the plaintiffs were directed to move to their substantive submissions.
I note that the manner and demeanour of Mr Kuksal throughout this contested adjournment application (which took the first half of the first day of the trial) was aggressive, rude and intimidatory, not only of opposing counsel, but also towards the Court and staff. This was a pattern of behaviour he adopted throughout the hearing despite being warned that his constant physically aggressive interruptions were inappropriate; I asked him to sit down, refrain from interrupting or talking over myself and opposing counsel (and even over his co‑plaintiff). Counsel for IBAC demonstrated dignified restraint in conducting his client’s case despite the baseless, egregious and personally offensive allegations made by Mr Kuksal towards counsel and his client.[27]
[27] Counsel made submissions criticising Mr Kuksal’s behaviour in which he submitted that Mr Kuksal’s behaviour risked reputational damage to counsel as an officer of the Court, noting the hearing was being recorded and livestreamed and was particularly concerned with baseless accusations of dishonesty and the inappropriate heckling. He further submitted that the Court ought not tolerate the level of disrespectful and abusive behaviour directed to a judicial officer lest it bring the administration of justice into disrepute. See Transcript, 36–41, 63–4.
Plaintiffs’ request to play audio recording
The plaintiffs sought to play in open court four hours of audio recording which they alleged demonstrated the reportable behaviour of the police officers the subject of their complaint to IBAC.[28] Considerable time was taken by Mr Kuksal seeking to convince me that he should play in open court these several hours of audio recording.
[28]In Kuksal v State of Victoria [2012] VSCA 97 at [151], Ginnane J referred to the transcript of the audio recording as having ‘not been verified as an accurate record of statements made by the police on 6 January 2022’ but ‘presents some evidence to support his case that a number of police officers were involved in events of that day.’
I was not persuaded that this was necessary to deal with this material in this manner and I agreed that I would review the footage if it was provided to me on USB and formally rule on its relevance or otherwise, noting the objection of IBAC to its acceptance that a separate copy of the recording on a USB be delivered to the Supreme Court Registry.
However, as at the current date, the plaintiffs have not provided the USB to the Court and I have been unable to review that material, even for the purposes of ruling on it. I have thus inferred that the matter is not pressed by the plaintiffs. This is not to say that the material is irrelevant, rather that the provision of it has not occurred.
I indicated to the parties that I proceeded on the basis that all of the material referred to which had been provided to IBAC had been received by it and was before it when it determined to refuse to investigate the complaint. There was no evidence before me that IBAC did not consider all of the material provided. Reliance was placed on the inferences drawn in the interlocutory hearing before Justice Ginnane and his Honour’s comments in an earlier decision in this proceeding:
Mr Kuksal’s audio transcript has not been verified as an accurate record of statements made by the police on 6 January 2022, but it presents some evidence to support his case that a number of police officers were involved in the events of that day. If IBAC had accepted that Mr Kuksal’s complaint or disclosure concerned the conduct of a number of police officers, allegedly using foul language and joking about the harm that the plaintiffs might suffer, it might have found that his complaint was a public interest complaint and investigated it as such to determine if police officers, being public officers, had engaged in improper conduct within the meaning of the PID Act. A failure to understand the nature and extent of the matter that a decision‑maker is required to decide may be a jurisdictional error, because it may be a failure to consider a central issue. In this instance, IBAC’s task was to decide whether to investigate Mr Kuksal’s complaint having first accurately identified what it entailed. I consider that there is a real prospect that the plaintiffs will be able to establish that IBAC did not do this. IBAC, of course, bears the onus of establishing that the plaintiffs have no real prospect of success in their claims against it.[29]
[29]Kuksal v State of Victoria [2023] VSC 625, [151].
Nothing more was put to the Court by the plaintiffs. Rather, the submission was that if IBAC had properly considered all of the material it would have made a different decision and would have investigated the conduct the subject of the complaint.
The plaintiffs also relied on the subsequent decision of IBAC to reassess and investigate the complaint as a basis for an inference that IBAC had not properly considered all of the material which had been provided to it.
In the circumstances which now pertain, that IBAC is in fact investigating the complaints, playing four hours of audio recordings at the Court hearing would be an indulgence without merit. This is particularly so given my stated acceptance that all of the material previously sent to IBAC was received and considered by it and is now being investigated by it.
I am satisfied that the consideration of several hours of audio recordings would not in the circumstances make any difference to the status of the facts as they currently stand. It is difficult to discern a proper basis for the course urged by the plaintiffs. This proceeding seeks declaratory relief. It is not a merits review nor is it the forum for a wide ranging commission of enquiry.
As such, I refused the plaintiffs’ request to play the audio recording in Court.
I note that Mr Kuksal’s refusal to accept my ruling formed part of a course of conduct by him to which I have referred above.
Plaintiffs’ recusal application
During IBAC’s submissions addressing the plaintiffs’ oral application for an adjournment of the trial, Mr Kuksal interrupted counsel for IBAC and alleged that he was acting ‘dishonestly’.[30]
[30]See, e.g., Transcript, 36-9, 45–6, 73.
This led to a series of exchanges between myself and Mr Kuksal where I repeatedly asked him to sit down and listen while counsel completed IBAC’s submissions. Failing any cooperation, I then asked Mr Kuksal to leave the courtroom.[31] Immediately following this exchange, Mr Kuksal indicated he would be making a recusal application against me based on apprehension of bias.
[31]Mr Kuksal was permitted to sit immediately outside the courtroom and watch the proceedings via a livestream on his personal laptop computer. The video link to the livestream had been provided to all parties via email prior to the trial on 13 November 2024.
Shortly before the luncheon adjournment, Mr Kuksal asked to be heard on the recusal application. Upon the resumption of the hearing after lunch, I advised Mr Kuksal that if he sought to make a recusal application, he could do so in writing by 4:00pm on the following day, Friday 15 November 2024.
Noting the trial bled into a second hearing day, at the conclusion of the hearing, Mr Kuksal made an oral application seeking a short extension of time to file the recusal application. This was granted and the new deadline was set to be 6:30pm on Friday, 15 November 2024.
During the course of the hearing, I did not accede to Mr Kuksal’s requests for recusal. One of the (many) tactics Mr Kuksal employed was to urge me to cite him for contempt when I directed him to sit down, stop interrupting or informed him that his behaviour was unacceptable in my Court.[32]
[32]Another tactic employed by Mr Kuksal was to feign denial that the video link had been emailed to him so that he could observe the proceeding while he was removed from the courtroom due to his heckling, interruptions and aggression towards opposing counsel.
Mr Kuksal complained that it was improper of me to request him to leave the courtroom notwithstanding having asked him to sit down and stop interrupting, or to leave the room. I emphatically disagree. Mr Kuksal’s general demeanour was rude, aggressive and intimidating. It is necessary to ensure that the conduct of parties in the courtroom is of a standard that all present (Court staff and practitioners) have a safe working environment and that the general public who were observing also are confident that the decorum of the courtroom is maintained. A review of the Transcript reveals I asked him to sit down 93 times and leave the courtroom 52 times. His behaviour was openly aggressive towards opposing counsel. On two occasions Court security was asked to intervene to escort him from the courtroom over the two days of hearing. The egregiously poor conduct, offensive and inappropriate language, and lack of cooperation transcended anything which could be described as acceptable conduct. As such, through his own conduct, he impliedly forfeited his right to remain in the courtroom as he was unable or unwilling to conduct himself in a safe, helpful and reasonable manner. Not only was his conduct not helpful, it was preventing me from properly conducting my judicial role.
In addition to the above, Mr Kuksal alleged a conspiracy between myself and other judicial officers, threatening to include me in a petition before the Victorian Parliament to remove me from office.
Further, on the morning of the second day of the hearing, Mr Kuksal contacted the Court minutes before the hearing was meant to commence advising that Ms Xu was so traumatised by the hearing that they would not be able to attend until 11:30am. No medical certificate was proffered. The defendants’ legal team, and Court staff, waited an hour for the plaintiffs to arrive. By 11:30am, the plaintiffs had not arrived and the hearing commenced. Mr Kuksal arrived at 11:50am.
Interestingly, Mr Kuksal appeared to use his morning’s absence to make a complaint against me to IBAC and then appeared to use this circumstance of the hearing commencing at 11:30am in his absence as a further reason why I should recuse myself.[33]
[33]Transcript, 181–4.
An unsworn affidavit dated 15 November 2024 was emailed to my chambers by Mr Kuksal asserting his view of the matters referred to above.[34] A sworn and dated revised affidavit was emailed to my chambers later in the afternoon.
[34]The affidavit contains offensive and unfounded allegations of conspiracy, misconduct of myself and other judicial officers.
I have reviewed the transcript of the hearing and Mr Kuksal’s sworn affidavit. I am unconvinced that any fair minded lay observer might form the view that recusal of myself as the judicial officer presiding in this matter was appropriate or necessary in accordance with the well established test.[35] I do not agree that a fair minded lay observer might form the view that I, as the judicial officer, might not bring an impartial and unprejudiced mind to the resolution of the questions required to be decided. The test is an objective one, bearing in mind that the hypothetical lay observer is taken to be reasonable and the judge is a person who, by training and tradition, is required to discard the irrelevant, the immaterial and the prejudicial.
[35]See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488.
Further, and in addition to the above, the interests of justice, including a proper use of scarce Court resources, required that the substantive hearing be heard and concluded on its merits as expeditiously as the real issues in dispute would permit. There is an overarching obligation on all litigants, including the (very experienced) self‑represented, to conduct litigation with courtesy, efficiency, and a focus on the real issues in dispute. This proposition eluded Mr Kuksal.
I should note that the behaviour of the second plaintiff, Ms Xu, cannot be regarded as being of the same ilk as Mr Kuksal. She was respectful, made cogent and logical submissions when she had the opportunity to do so, and often sought to counsel Mr Kuksal to act more respectfully and participate as I had directed. Whilst she largely supported the submissions made by Mr Kuksal, her courtroom etiquette is not criticised.[36]
[36]However, more broadly, I was also unconvinced by her lack of compliance with the Court’s orders and the manner in which the trial was conducted on its merits.
I formally reject the plaintiffs’ application(s) for recusal.
CLAIM AND GROUNDS RELIED UPON
By their amended originating motion, the plaintiffs sought that the Court determine and declare that IBAC committed a jurisdictional error or error of law in dismissing the plaintiffs’ complaint on 5 April 2022 pursuant to s 76 of the Commonwealth of Australia Constitution Act, s 39 of the Judiciary Act 1903 (Cth), s 85 of the Constitution Act 1975 (Vic), ss 36 and 38 of the Supreme Court Act 1986 (Vic), Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), under the law of equity and/or the inherent supervisory jurisdiction of the Court.
The grounds relied upon by the plaintiffs were set out in the amended notice of appeal as follows:
In dismissing the Plaintiffs’ complaint on 5 April 2022, IBAC acted in a manner contrary to:
1. The objects of the [IBAC Act], as set out in section 8 of that Act;
2. Its obligations pursuant to sections 15, 58 and 59 of the IBAC Act;
3. The purpose of the [PID Act] as specified in section 1 of that Act;
4. Its obligations pursuant to sections 26 and 45 of the [PID Act]; and
5. IBAC’s obligations to consider the impact of its decisions on the Plaintiffs’ human rights pursuant to section 38 of the Charter of Human Rights and Responsibilities 2006 (Vic).
PLAINTIFFS’ SUBSTANTIVE SUBMISSIONS
Having refused the plaintiffs’ applications, the trial proceeded despite the difficulty in cooperation from Mr Kuksal. Although not having the benefit of an outline of the submissions on the substantive matters, the plaintiffs (after airing their grievances as to various procedural matters irrelevant to the claim in the amended originating motion) addressed the substance of the orders sought by them. Mr Kuksal took issue with being required to address the grounds raised in the amended originating motion and disagreed that it set the parameters of the proceeding.[37] Given there were no submissions filed by the plaintiffs which outlined the manner in which the connection between the claim for relief and the grounds was explored, the Court was effectively reliant on the oral submissions of the plaintiffs.
[37]Transcript, 30–1.
From what I could discern of Mr Kuksal’s submissions and those of Ms Xu, the key submission relied upon was that IBAC would not have fallen into error if it had taken into account all of the material it had before it. In particular, Mr Kuksal referred to the affidavit of Ms Armstrong dated 14 March 2024 filed for IBAC. It was argued that the evidence contained in the affidavit demonstrated that some complaints made by the plaintiffs were not considered or were rejected including IBAC’s decision that the matter was not a public interest complaint. They argued that the conclusion in the decision letter demonstrated that IBAC did not consider all of the material that was sent to it.
It was submitted that the letter from IBAC on 16 May 2024 which stated that IBAC was reassessing the 6 January 2022 complaint was fraudulent because IBAC had not provided reasons for why it had reopened the matter and/or reversed its decision without advising the Court or the plaintiffs of the legal basis. It was submitted that, according to the plaintiffs, ‘[t]he relevant issue is that they didn’t do their job. They lost. They reversed their position after they were sued’.[38]
[38]Transcript, 243.
Ms Xu stated her view that there were two decisions under review. The first was IBAC choosing not to investigate the plaintiffs’ complaint. The second was IBAC declaring the complaint was not a ‘public interest complaint’ pursuant to s 9 of the PID Act.
IBAC’S SUBMISSIONS
IBAC’s submissions asserted that the plaintiffs’ amended originating motion should be dismissed on the basis that:
(a) on the material before the Court, it was not possible to discern the nature of the jurisdictional error relied upon by the plaintiffs, including because the plaintiffs had not complied with pre‑trial directions nor filed written submissions;
(b) the declaration sought, that IBAC committed a jurisdictional error or error of law when it dismissed the plaintiffs’ initial complaint, is of no utility because IBAC has subsequently decided to investigate the complaint; and
(c) the plaintiffs are engaged in an abuse of process and approached the Court without clean hands.
IBAC referred to the detailed interlocutory decision of Justice Ginnane. Despite various opportunities provided by the Court to allow the plaintiffs to further amend their originating motion, they have not articulated their case and thus the legal basis of the case against IBAC is opaque.
IBAC stressed the plaintiffs bear the burden of proof in any matter, which is a necessary element of the declaration sought.[39] This includes proving the utility of the declaration, the High Court of Australia having confirmed that:
declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a ‘a real interest’ and relief will not be granted if the question is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.[40]
[39]Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653, 655 [7] (Young CJ), quoting McLelland CJ in Massoud v NRMA Insurance Ltd (1995) 8 ANZ Insurance Cases 75,873 (61-257).
[40]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Tookey and Gaudron JJ) (citations omitted).
In the absence of the plaintiffs specifying the alleged jurisdictional error or error of law, IBAC argued it is impossible for it to meaningfully respond to these allegations in the usual course of a judicial review proceeding.
To support IBAC’s claim that the action (or inaction) of the plaintiffs constitutes an abuse of process, IBAC contended that an abuse of process will arise if a moving party institutes or maintains proceedings for an improper or collateral purpose.[41] Both plaintiffs had independently made further complaints about what is alleged to have occurred on 6 January 2022. These two ‘fresh’ complaints are now being investigated by IBAC, including by reference to the further information which the plaintiffs have provided in addition to reopening the initial complaint which is the basis of the current declaration proceeding. IBAC argued that notwithstanding this change in circumstances, the plaintiffs have chosen to continue this proceeding. IBAC also submitted that an abuse of process will also arise where a moving party’s use of the Court processes creates the potential for a manifest injustice or a detriment to the operational capacity of the forum itself.[42]
[41]Williams v Spatz (1992) 174 CLR 509.
[42]Moti v The Queen (2011) 245 CLR 456, 478 [57]; Williams v Spatz (1992) 174 CLR 509, 520.
IBAC referred me to r 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) in support of the proposition that where a proceeding is an abuse of the process of the Court, the Court may give judgment on the basis of that abuse.
It was said, relevantly to this case, in reference to Associate Justice Hetyey’s decision in Brown v Corrections Victoria at [26] that an abuse of process occurs where the:
(a) Court’s processes are invoked for an illegitimate or collateral purpose;
(b) use of the Court’s procedures is unjustifiably oppressive to a party; and
(c) use of the Court’s procedures would bring the administration of justice into disrepute.[43]
[43]Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J); PNJ v The Queen (2009) 252 ALR 612, 613-14 [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
Ultimately, IBAC argued the culmination of a failure to comply with Court orders, a failure to explain the utility of the relief sought in circumstances where IBAC is now re‑investigating the initial complaint, and Mr Kuksal’s making of further complaints for ‘tactical’ reasons,[44] amounts to an abuse of process.
[44]Mr Kuksal had previously admitted before Judicial Registrar Baker on 28 February 2024 that the subsequent complaints in relation to the same matters underpinning the initial complaint were done as a ‘tactical measure’.
Moreover, it was submitted by IBAC that, as a declaration is a discretionary equitable remedy, the plaintiffs must approach the Court with clean hands. The conduct of the party seeking relief must be examined by the Court and, if there is evidence of legal impropriety, equitable relief should be refused.[45]
[45]Wenczel v Commonwealth Bank of Australia [2006] VSC 324.
IBAC asserted that the conduct of the plaintiffs raised above demonstrates they have acted in bad faith and, in the absence of an explanation, the Court should deny the declaration sought.
CONSIDERATION
Section 36 of the Supreme Court Act 1986 (Vic) empowers the Court to make a declaration without granting consequential relief. However, declaratory relief must relate to the termination of legal controversies and not to answering an abstract or hypothetical question.[46] Although the relief is discretionary in nature, it is not a form of equitable relief but statutory relief.[47]
[46]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582.
[47]Ambridge Investments Pty Ltd (in liq) v Baker [2010] VSC 59, [61]–[78] (Vickery J).
Certain factors are relevant to the consideration of the appropriateness of declaratory relief in a particular circumstance. These include where the declaration will produce no foreseeable consequences.[48] As such, while a bare declaration in the absence of resolving the outstanding dispute between the parties may be made, its lack of utility is a powerful argument against the Court exercising its power.[49]
[48]Director of Consumer Affairs Victoria v Mecon Insurance Ltd [2016] VSC 42, [22] (Elliott J).
[49]XX v WW and Middle South Area Mental Health Service [2014] VSC 564, [47]; see also Director of Consumer Affairs Victoria v DW International Trading Pty Ltd [2010] VSC 515.
It is well established that there will be a rare case where a bare declaration, not a declaration of any present right and amounting only to acknowledgement of past infringement, will be justified. If the making of a declaration was in the public interest, it may be a factor in favour of granting relief.
Given that IBAC is undertaking an investigation of the plaintiffs’ complaint as alleged in the amended originating motion, it would be inconsistent with the interests of justice and contrary to the public interest for the Court to interfere with that statutory process. A declaration in the circumstances is of no utility to the resolution of the dispute between the plaintiffs and IBAC. IBAC is undertaking the very thing about which the plaintiffs seek the Court’s intervention. Continuing to conduct litigation in these circumstances is tantamount to abuse of process. To make a declaration in these circumstances would run counter to the public interest in the timely and efficient resolution of disputes. The Court’s processes and resources ought not be encouraged to be used for political or personal vendettas.
In this regard, the motivation for continuing to engage in protracted litigation where it is of no utility can be illustrated by Mr Kuksal’s recent email correspondence with my chambers (after the conclusion of the trial on 17 and 20 February 2025) in which he sought a further hearing where he would seek to make further allegations against counsel for IBAC, IBAC itself, the Supreme Court Prothonotary, and judicial officers of the Supreme Court as part of his deluded allegations as to ‘abuse of authority’, ‘underhanded tactics’ and ‘ongoing corrupt conduct’. He asserts that the plaintiffs had intentionally delayed in applying to reinstate the proceeding, stating as follows:
[t]he Plaintiffs had been waiting for the completion of my thesis on the transactional dynamics of corrupt conduct and the vilification of victims necessary to sustain it with impunity before reinstating the proceeding, appealing some of the orders made in the proceeding and publishing the aforementioned material to ensure that the cognitive warfare principles that we have employed in litigation are properly contextualised for the court and the public. The thesis to be released later this week.
I am not satisfied that there is any proper basis for making the declaration sought by the plaintiffs. Rather, it would be contrary to the interests of justice and an improper use of the Court’s jurisdiction to make a declaration as to jurisdictional error where the question of error is irrelevant because the task being undertaken by IBAC of which the compliant was raised is in fact underway.
The substance of the plaintiffs’ submissions relied on the comments of Justice Ginnane that a real prospect existed as to the plaintiffs’ judicial review claim. That earlier observation was made in the context of a summary dismissal application. They did not persuade me that there is a proper foundation for a finding of error.
I accept that Ms Xu, in the context of attempting to tame Mr Kuksal’s worst behaviour, did attempt to make submissions to the Court in a civil and logical manner. Ultimately, however, I have not been able to discern a proper basis for the relief sought from her submissions either and the proceeding will be dismissed.
CONCLUSION AND ORDERS
The proceeding against IBAC fails and I refuse the relief sought by the plaintiffs. I will make orders accordingly.
I will provide the parties with an opportunity to make written submissions as to any application for costs.
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SCHEDULE OF PARTIES
| S ECI 2022 04808 | |
| BETWEEN: | |
| SHIVESH KUKSAL | First Plaintiff |
| LULU XU | Second Plaintiff |
| - and - | |
| STATE OF VICTORIA | First Defendant |
| THE MAGISTRATES COURT OF VICTORIA | Second Defendant |
| THE VICTORIAN LEGAL SERVICES BOARD | Third Defendant |
| INDEPENDENT BROAD‑BASED ANTI‑CORRUPTION COMMISSION | Fourth Defendant |
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