Kuksal v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04808

SHIVESH KUKSAL & ANOR	Plaintiffs
(according to the attached schedule)
v
THE STATE OF VICTORIA & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 July, 2-4, 9-10 August, 9-10 November 2023
DATE OF JUDGMENT:	20 December 2023
CASE MAY BE CITED AS:	Kuksal v State of Victoria
MEDIUM NEUTRAL CITATION:	[2023] VSC 625

---

JUDICIAL REVIEW – Criminal law – Magistrates’ Court hearing – Declarations sought as to search warrant and arrest of the plaintiffs – Declarations sought as to decisions and rulings in Magistrates’ Court hearing – Fragmentation of proceedings – Declarations refused.

PRACTICE AND PROCEDURE – Applications to amend originating motion and join parties – Whether amendments appropriate and joinder of parties convenient – Delay in commencing proceeding – Fragmentation of criminal proceedings – Applications dismissed - Supreme Court (General Civil Procedure) Rules 2015 rr 9.02, 9.06.

PRACTICE AND PROCEDURE – IBAC’s application for summary judgment of plaintiffs’ proceeding - IBAC’s application for proceeding to be dismissed as an abuse of proceeding – Complaint to IBAC – Standing of plaintiff who did not make the complaint – Proposed amended claims based on arguments that IBAC did not validly consider the complaint and the plaintiffs’ Charter rights – Application for summary judgment dismissed Civil Procedure Act 2010 ss 63, 64; Independent Broad-based Anti-corruption Commission Act 2011 s 3(1), 4, 5, 7, 8, 15, 51, 58, 59, 62, 67, 73, 162, 163, 164; Public Interest Disclosure Act 2012 ss 1, 4.9, 26, 26A, 29, 39, 41, 45, 55; Charter of Human Rights and Responsibilities Act 2006 ss 8, 10, 12, 21, 38; Victoria Police Act 2013 ss 50, 125, 126, 227-228; Supreme Court (General Civil Procedure) Rules 2015 r 23.01.

PRACTICE AND PROCEDURE – Applications to reopen proceeding and to rely on recently discovered evidence after judgment reserved – Whether misapprehensions of law or fact – Limited new evidence admitted – Reopening otherwise refused.

COSTS – Application for judicial review and for declarations – Judicial review application commenced out of time – Extension of time not sought – Defendant issuing summons seeking dismissal of judicial review application if extension of time not sought – Plaintiffs abandoning judicial review application – Defendant entitled to costs of the summons – Supreme Court (General Civil Procedure) Rules 2015 O 56.

COSTS – Party seeking to be removed as a defendant – Application dismissed – Costs reserved.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	In person
For the First Defendant	Ms M Cananzi (on 28 July, 1-2 and 9-10 August 2023) Ms A Pejovic (on 10 August 2023)	Victorian Government Solicitor’s Office
For the Third Defendant	Mr L McAuliffe	Corrs Chambers Westgarth
For the Fourth Defendant	Ms S Brenker	Solicitor of the Independent Broad-based Anti-corruption Commission

TABLE OF CONTENTS

Summary of decision......................................................................................................................... 1

Background......................................................................................................................................... 1

The plaintiffs’ originating motion.................................................................................................. 2

Proposed amended originating motion (‘PAOM’)...................................................................... 3

The plaintiffs’ submissions about the PAOM and joinder of parties.................................... 5
Ms Xu’s submissions about the PAOM and the joinder of parties...................................... 12
The relief that the plaintiffs seek............................................................................................... 13
The defendants’ submissions about the PAOM and joinder of parties.............................. 13
Analysis of the plaintiffs’ amendment and joinder applications......................................... 15

IBAC’s application........................................................................................................................... 20

Mr Kuksal’s complaint to IBAC................................................................................................ 20
IBAC’s decision........................................................................................................................... 21
The declarations that the plaintiff sought against IBAC....................................................... 22
IBAC’s summons......................................................................................................................... 24
IBAC’s submissions.................................................................................................................... 25
Abuse of process......................................................................................................................... 29
Mr Kuksal’s submissions opposing IBAC’s summons for summary judgment............... 29
Ms Xu’s submissions.................................................................................................................. 31
The IBAC Act............................................................................................................................... 32
The Public Interest Disclosures Act 2012................................................................................. 39
Victoria Police Act 2013.............................................................................................................. 45
Analysis of IBAC’s summons.................................................................................................... 46

Delay................................................................................................................................................... 54

Authorities on delay................................................................................................................... 55
Summons by the State of Victoria............................................................................................. 58
The plaintiffs’ submissions regarding the State of Victoria’s summons............................. 59
Analysis of State of Victoria’s submissions............................................................................. 61

The plaintiffs’ application to reopen the case............................................................................ 66

Ms Xu’s affidavit in support of the reopening application................................................... 71
Mr Kuksal’s and Ms Xu’s other grounds for reopening the proceeding............................ 73
Submissions opposing the reopening application................................................................. 75
Decision onthe plaintiffs’ reopening application................................................................. 77
Plaintiff’s application to provide further evidence................................................................ 79
Ruling on further evidence........................................................................................................ 81
The plaintiff’s third application to rely on further evidence after judgment was reserved 83

Costs of IBAC’s summonses dated 1 June 2023 and 29 June 2023.......................................... 86

The plaintiffs’ submissions on costs......................................................................................... 87
Ms Xu’s submissions on costs of the IBAC summonses....................................................... 89
IBAC submissions on costs of its summonses........................................................................ 90
Analysis – Costs of IBAC’s summons...................................................................................... 94

Costs of the VLSB’s summons dated 1 June 2023...................................................................... 95

The plaintiffs’ submissions on costs......................................................................................... 95
VLSB’s response to the plaintiffs’ costs application............................................................... 99
Analysis – Costs of the VLSB summons dated 1 June......................................................... 101

Conclusion....................................................................................................................................... 103

HIS HONOUR:

The plaintiffs, Mr Shivesh Kuksal and Ms Lulu Xu, commenced this proceeding by originating motion filed 23 November 2022. It named four defendants: the State of Victoria (‘the State’), the Magistrates’ Court of Victoria,[1] the Victorian Legal Services Board (‘the VLSB’) and the Independent Broad-based Anti-corruption Commission (‘IBAC’).
[1]The Magistrates’ Court sent a Hardiman letter and did not participate in the hearing.

The matters to be decided in this judgment are the plaintiffs’ application for leave to file a proposed amended originating motion (‘PAOM’) and to join additional defendants, the summonses issued by IBAC and the State of Victoria seeking the dismissal of the proceeding and the plaintiffs’ applications to reopen the hearing that concluded on 10 August 2023, when I reserved judgment and to rely on recently discovered evidence.

Summary of decision

For the reasons that I give in this judgment, I refuse the plaintiffs’ application for leave to file the PAOM and to join additional defendants. I dismiss IBAC’s summons. I grant the State of Victoria’s summons to the extent of granting a temporary stay of this proceeding. I dismiss the plaintiffs’ application to reopen the hearing to which this judgment relates, save to allow the admission into evidence of the prosecution note dated 7 November 2023 and the Magistrates’ Court orders striking out the charges against Ms Xu. I also dismiss the plaintiffs’ applications to rely on recently discovered evidence. The result is that, save for the plaintiffs’ claim against IBAC, the remainder of this proceeding is stayed until the determination of the criminal charges, numbered N10047659 in the Magistrates’ Court against the first plaintiff Mr Kuksal and of any appeal from, or any application for judicial review of, that determination.

Background

On 6 January 2022, Victoria Police officers executed a search warrant issued by the Magistrates’ Court at premises in Point Cook and arrested the plaintiffs.

Charges were then brought against the plaintiffs in the Magistrates’ Court of Victoria in proceedings N10047659 and N10254563 (‘the Olney proceedings’). They were charged with dishonesty offences in respect of furniture which was to be transported interstate, including obtaining property by deception and theft. The first plaintiff was also charged with committing an indictable offence, theft, whilst on bail.

On 7 January 2022, a Magistrate made bail orders for the plaintiffs.

As is later discussed, on 8 November 2023 the prosecution withdrew the charges against the second plaintiff and they were struck out. At that time, the prosecution informed the first plaintiff 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 plaintiffs’ originating motion

The plaintiffs’ originating motion sought many determinations and declarations a summary of which is as follows.[2] First, about the validity of the search warrant issued. Secondly, about the plaintiffs’ arrest, the conduct of Victoria Police on 6 January 2022 at the Point Cook premises and about allegations that Victoria Police officers converted goods belonging to corporations owned by the plaintiffs or the first plaintiff. That the conduct of the Victoria Police Accused on 6 January 2022 was in contravention of their oath of office as mandated by s 50 of the Victoria Police Act 2013, in breach of their non-disclosure obligations imposed by ss 227 and 228 of that Act. Thirdly, about the validity of bail orders made by a Magistrate on 7 January 2022. Fourthly, about IBAC’s refusal to investigate a complaint about Victoria Police’s conduct on 6 January 2022. Fifthly, that the charges brought against the plaintiffs and their prosecution were an abuse of the Magistrates’ Court’s process, carried out in contumelious disregard of the plaintiffs’ rights and which brought the administration of justice into disrepute. Sixthly, that orders made by a Magistrate on 7 November 2022, denying Mr Kuksal’s application to summons relevant information and documents from Ms A Alevizopoulos, a solicitor employed by the VLSB (‘the VLSB solicitor’) and Mr H Rapke, the appointed external manager of People Shop Pty Ltd trading as Erudite Legal (‘the Manager’) (collectively ‘the VLSB parties’) and refusing to release Mr Kuksal from non-disclosure obligations concerning the affidavit relied on to secure the search warrant (‘search warrant affidavit’) were pronounced in breach of Mr Kuksal’s right to a fair hearing and in denial of procedural fairness and natural justice, were a manifestation of Wednesbury unreasonableness[3] and a nullity or otherwise unlawful.
[2]The following section contains a summary and does not use the numbering used in the originating motion.
[3]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

In their originating motion, the plaintiffs sought orders under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) and the laws of equity that the prosecutions be dismissed with costs, that the VLSB parties comply with the subpoenas issued by Mr Kuksal and that he be released from all disclosure obligations in relation to the search warrant affidavit.

Proposed amended originating motion (‘PAOM’)

During the hearing, the plaintiffs sought leave to file and to rely on two proposed amended originating motions (‘PAOM’), the first dated 31 July 2023 and the second dated 3 August 2023, but which was provided to the parties the following day. The latter PAOM, which I will hereafter refer to as the PAOM, sought to join a further 23 defendants, including police officers, legal practitioners, VLSB staff or persons engaged by the VLSB and persons associated with the justice system. The PAOM contained many additional causes of action, some of which appeared to be based on the plaintiffs’ allegations of a conspiracy being conducted against them. That conspiracy allegation was expressed in the existing originating motion in the following terms:

The evidence thus collected and further supplemented by the documents obtained through subpoena applications in the [Shivesh Kuksal] Proceedings presents irrefutable evidence of a shocking criminal conspiracy between various Victoria Police Officers, Nine Network Australia Pty Ltd, and the LSB.

Mr Kuksal stated that he wanted to commence his oral submissions by ‘providing some context to the conspiracy that the plaintiffs allege is at the heart of the current matters before the Court.’[4] He also alleged that that conspiracy was at the core of the plaintiffs’ claims in their PAOM.[5]
[4]Transcript of Proceedings, Kuksal v State of Victoria, (Supreme Court of Victoria, S ECI 2022 04808, Ginnane J, 28 July, 1-2, 4 and 9-10 August 2023) 304 (‘T’).
[5]T 305.

Mr Kuksal described some of the parties as being ‘Norwich Pharmacal’ conspirators,[6] which he said meant:[7]

Where a person’s resources or an entity’s resources are utilised or abused for an improper or unlawful conspiracy, such that that particular person themselves are innocent in respect of the designs of the other tortfeasors, then it is incumbent upon them to cooperate with the victim of the conspiracy to the extent that they can, in order for them not to incur direct liability.

[6]Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 (‘Norwich Pharmacal’).

[7]T 525.

The Court directed the plaintiffs to file and serve a summons seeking leave to file an amended originating motion by 14 July 2023, but they did not do so. They served affidavits on the VLSB but it contended that they did not provide access to all their exhibits. The defendants submitted that the plaintiffs should not be able to rely on those affidavits when they had provided no reason for not complying with the Court’s directions and had delayed in seeking to amend their originating motion.

Mr Kuksal argued that the plaintiffs’ application to amend the originating motion and join additional parties should be permitted because they were entitled to rely on new evidence and were not fundamentally widening the issues in dispute. He contended that many of the changes contained in the PAOM were necessary because the relevant parties had made inadequate disclosure of documents. He submitted that the joinder of parties was desirable, as otherwise the plaintiffs might have to commence a multiplicity of proceedings to make their claims, which would be contrary to the overarching purpose of the Civil Procedure Act 2010 (‘Civil Procedure Act’).

I have considered the defendants’ submissions, but I take into account that during the hearing, they had the opportunity to, and did, make extensive submissions about the plaintiffs’ two PAOMs. I consider it appropriate to decide the plaintiffs’ application for leave to file the PAOM, even though they failed to file a summons, and to do so before determining the summonses of the IBAC and the State. I consider that I should decide the plaintiffs’ oral application for leave to amend by reference to the second PAOM, that dated 3 August 2023. So I will next summarise the many allegations and claims that it makes and the parties’ submissions about it.

The plaintiffs’ submissions about the PAOM and joinder of parties

The plaintiffs’ PAOM seeks many determinations and declarations based on numerous grounds and, as I have mentioned, seeks to join 23 additional defendants. While I will attempt a summary of the grounds, I will not describe in detail all the many allegations they contain. I take parts of the summary from the plaintiffs’ oral submissions. It is important to record that the proposed additional parties have not had the opportunity to respond to the allegations that the plaintiffs make. I therefore make no finding about the veracity or accuracy of those allegations.

The grounds commence with a section headed ‘The illegality of Victoria Police’s actions against the plaintiffs’, which alleges that:

Victoria Police’s investigation of the First Plaintiff and its officers’ invasion of the Plaintiffs’ residence, arrest, imprisonment and associated actions on 6 and 7 January 2022 were unlawful because…

The plaintiffs seek declarations and determinations concerning the validity of the search warrant and they seek to join as a defendant the police officer who made the search warrant affidavit.

The second declaration sought in the PAOM was that on 6 January 2022, the plaintiffs were subjected to unlawful arrest, false imprisonment, assault, battery, infliction of mental harm and disruption to their business activity. It is also contends that on that day that police officers trespassed on and broke into the premises and converted the plaintiffs’ goods or those belonging to corporations owned by the first plaintiff.

The plaintiffs seek to join 12 police officers whom they allege were involved in the events on 6 January 2022. The 6^th-8^th proposed defendants are described as the ‘Alleged Police Offenders’. The 9^th-14^th proposed defendants are described as the ‘Alleged Police Intruders’. The 15^th-17^th proposed defendants are described as the ‘Alleged Police Trespassers’. I will on occasion refer to these proposed defendants as ‘the police parties’.

The plaintiffs seek declarations that the ‘Alleged Police Offenders’ conduct was ‘improper conduct’ within s 4 of the Public Interest Disclosures Act 2012 (‘PID Act’), was ‘corrupt conduct’ within s 4 of the Independent Broad-based Anti-corruption Commission Act 2011 (‘IBAC Act’) and constituted breaches of the Victoria Police Act 2013 (‘VP Act’).

The PAOM contains many grounds under the heading ‘The evidence of police misconduct’. They include allegations that police officers broke into the premises hours before the search warrant was issued. They allege that police engaged in criminal conduct, and in that regard the plaintiffs rely on an audio recording made on one of their phones during the execution of the search warrant. A video of the Victoria Police’s alleged unlawful raid of the premises was broadcast one business day later on the television program ‘A Current Affair’. The plaintiffs alleged that the VLSB co-ordinated with the segment reporter to release an inflammatory statement publicly vilifying Mr Kuksal, a copy of which it published on its website.

The PAOM contains a section titled ‘Victoria Police’s efforts to falsely implicate the plaintiffs in the commission of criminal offences’. It contains grounds B15–B30. For example, it alleges that statements in the search warrant affidavit were false. The PAOM also contains a section headed ‘The deliberate conversion & theft of the first plaintiff’s property by Victoria Police officers’, which contains grounds B31 to B41.

The plaintiffs seek declarations that the prosecutions are a nullity and the charge sheets are defective beyond cure. They also seek declarations that the informant and lawyers involved in the prosecution and the Office of Public Prosecutions (‘OPP’) have engaged in conduct which was an abuse of the court’s criminal jurisdiction and engaged in the malicious prosecution of the plaintiffs.

The plaintiffs seek declarations against two former employees or directors of Avant-Garde Logistics Solutions Pty Ltd,[8] (‘AGLS’), the proposed twenty-fifth and twenty-sixth defendants who are described as ‘Alleged Fraudulent Fiduciaries’. They are alleged to have breached their statutory obligations as directors, acted in concert with Victoria Police in relation to the prosecutions and perverted or attempted to pervert the course of justice.
[8]Trading as Apex Logistics Solutions, a business associated with Mr Kuksal.

The plaintiffs allege that the twenty-sixth proposed defendant is a necessary party because she advised the informant that Mr Kuksal had unlawfully recorded the events of Victoria Police’s allegedly unlawful invasion of his Point Cook premises. She is alleged to have been involved in the transcription of that recording when the Law Firm representing the plaintiffs was preparing documents, including the affidavits of Mr Kuksal, Mr Peter Ansell and Ms Xu. She is alleged to have breached her statutory and fiduciary obligations.

The plaintiffs seek declarations that bail orders made on 7 January 2022 were obtained through ‘equitable fraud perpetrated on the court’ and were a nullity.

The plaintiffs seek declarations about other Magistrates’ Court orders contending that they ‘have been nullities at law since the respective dates of their purported commencement’. The plaintiffs seek to join as a defendant a person associated with that proceeding in which those orders were made.

The plaintiffs seek declarations that IBAC committed a jurisdictional error or error of law in dismissing the plaintiffs’ complaint on 5 August 2022.

The plaintiffs again seek declarations that a Magistrate’s orders made on 7 November 2022 setting aside the first plaintiff’s subpoenas (summonses) issued to the VLSB parties and refusing him release from non-disclosure obligations concerning the search warrant affidavit were made in jurisdictional error, issued in denial of procedural fairness to the first plaintiff, obtained through equitable fraud perpetrated on the Court and are a nullity.

The PAOM contains an extensive section directed at ‘the LSB’s Parties’ Improper Conduct’. It alleges that the VLSB parties, the individuals, the Manager and the VLSB solicitor, engaged in professional misconduct within the meaning of the Legal Profession Uniform Law Application Act 2014 (‘the Uniform Law’) and perverted or attempted to pervert the course of justice and alleges, additionally, that the Manager breached sections of the Corporations Act 2001 (Cth) (‘Corporations Act’).

The plaintiffs seek declarations that in undertaking those actions, the VLSB made a jurisdictional error, abused its authority, acted in violation of the statutory objectives behind the Uniform Law, engaged in improper conduct within the meaning of s 4 of the PID Act, manifested corrupt conduct as defined in s 4 of the IBAC Act and perverted or attempted to pervert the course of justice.

Examples of ‘the LSB’s Improper Conduct’ contained in the PAOM include allegations about the actions of the person appointed by the VLSB as Manager of the legal practice People Shop Pty Ltd trading as Erudite Legal (‘the Law Firm’), who was then Mr H Rapke.[9] The plaintiffs expanded on these allegations in an Addendum document dated 2 August 2023, which I will next summarise.
[9]The Court was informed that Mr Rapke has ceased to be the External Manager.

The allegations include that the Manager withdrew the Law Firm’s representation of the plaintiffs without proper notice or proper basis in a manner that prejudiced their rights and interests in the Olney proceedings. The Manager unlawfully disclosed to Victoria Police legally privileged information concerning the evidence that the plaintiffs had gathered against it and the case that they were preparing to bring against it. The Manager seized the plaintiffs’ case files to prevent them from effectively running their defence in the Olney proceedings and bringing their claims against Victoria Police, shut down the Law Firm’s operations and prevented its staff from assisting the plaintiffs in their preparation for those proceedings. The Manager improperly communicated with a police employee solicitor involved in the prosecution (‘the police employee prosecutor’) and/or Victoria Police while the Law Firm was representing the first plaintiff, without his consent or knowledge. The Manager improperly opposed the first plaintiff’s subpoena application heard on 9 September 2022 and decided on 7 November 2022. The Manager improperly accepted legal representation from the VLSB while he was the external manager of the Law Firm that the plaintiffs had engaged to commence proceedings against the VLSB.

The allegations against the VLSB solicitor, the proposed twenty-fourth defendant, are as follows. That she communicated with the prosecutor in the Olney proceedings on the day of the contest mention, 24 August 2022, to improperly influence him to continue the prosecution of a hopeless matter. She incited the Law Firm’s former director, the proposed twenty-sixth defendant, to make false claims to incriminate the plaintiffs in the commission of criminal proceedings. She improperly opposed the subpoena application of the first plaintiff heard on 9 September 2022 and decided on 7 November 2022.

The allegations against the VLSB are as follows. The VLSB critically misrepresented facts concerning the correspondence sent on behalf of AGLS to its clients so as to cause Victoria Police to conclude that the first plaintiff had defrauded or sought to defraud them to his financial benefit. The VLSB had procured legal representation for the VLSB solicitor and the Manager and thereby improperly opposed the first plaintiff’s subpoena applications on 9 September 2022 leading to their unlawful dismissal on 7 November 2022. The VLSB instructed or influenced the VLSB solicitor and/or the Manager to perform the actions described above. The VLSB’s publication on its website on 10 January 2022 was an improper use of information obtained through the search warrant issued by the Magistrates’ Court on 6 January 2022.

The Addendum describes the relief or declarations sought in respect of the VLSB parties as follows. That the Manager contravened ss 180-184 of the Corporations Act and engaged in professional misconduct within s 297 of the Uniform Law and perverted or attempted to pervert the course of justice. That the VLSB solicitor engaged in professional misconduct within s 297 of the Uniform Law and perverted or attempted to pervert the course of justice.

The Addendum describes the relief or declarations sought against the VLSB as follows. That it committed jurisdictional error and abused its authority. That it acted in violation of and contravention of its statutory objectives as set out in s 3 of the Uniform Law, that it engaged in ‘improper conduct’ within the meaning of s 4 of the PID Act and ‘improper conduct’ as defined in s 4 of the IBAC Act and perverted or attempted to pervert the course of conduct.

In the PAOM, the plaintiffs seek declarations concerning ‘Victoria Police’s failure to perform its duty’ and the actions of a police employee prosecutor, the proposed nineteenth defendant, in not escalating the first plaintiff’s complaint regarding the ‘Alleged Police Offenders’ to the Chief Commissioner of Police. The Chief Commissioner is alleged to have breached his statutory obligations by not investigating the first plaintiff’s complaint against Senior Constable Olney. The plaintiffs seek to join as defendants the police employee prosecutor and the Chief Commissioner of Police.

The plaintiffs submitted that the police parties were necessary defendants because the relief sought impugned their character and might have consequences for them, when they might be unaware of this proceeding.[10] The State will represent all of them and Mr Kuksal wishes to avoid a situation where the joinder of parties becomes necessary at a much later stage.
[10]The plaintiffs also relied on the views expressed by a Judge of the Court hearing a related proceeding in the Practice Court on 4 January 2023.

The plaintiffs also seek declarations about what they describe as ‘Victoria Police’s Conspiracy with the LSB’ including that ‘in wilfully abusing information and/or property that had been forcefully obtained from the Plaintiffs’ residence through the search warrant [and the] the Alleged Police Offenders and the LSB acted in contempt of court’.

Grounds B87 to B97 contain details of this alleged conspiracy. They include allegations that the VLSB played a critical role in influencing Victoria Police officers to suspect that the first plaintiff had defrauded the complainants by passing himself off as a legal practitioner, unlawfully disclosed the plaintiffs’ privileged case file that the Law Firm had maintained against Victoria Police through the appointment of the Manager and disrupted the plaintiffs’ legal representation and compromised their interests in relation to the Olney proceeding through appointing the Manager. Allegations are also made about the VLSB’s January publication on its website, including that ‘in listing all the recognised trading corporations owned by the first plaintiff, that publication left ‘no doubt that the First Plaintiff [was] the target of the LSB’s vilification’.

The plaintiffs sought to join other persons as defendants. One was a barrister, the proposed twentieth defendant, who had appeared for the prosecution on two occasions in preliminary hearings. He was alleged to have improperly applied for the revocation of Mr Kuksal’s and Ms Xu’s bail on the 14 December 2022, when Mr Kuksal was running late for Court and did not appear when his case was called. He and Ms Xu were on their way to Court as Ms M Di Gregorio, who is a business associate of Mr Kuksal, informed the Court. The plaintiffs argued that because the Court was soon closing, the revocation of the plaintiffs’ bail may have resulted in them being detained in custody for weeks. They also alleged that the barrister would not return to Court to represent the prosecution after Mr Kuksal arrived and applied for the revocation of the arrest warrant that the Magistrate had issued. The Magistrate would not revoke the arrest warrant unless the prosecution barrister was present. The plaintiffs also allege that the barrister breached prosecution disclosure obligations. Following the escalation of the matter to the committal stream, a number of documents were discovered by the prosecution which had not been previously provided to the plaintiffs.[11]
[11]T 555.

Ms Xu’s submissions about the PAOM and the joinder of parties

Ms Xu, in her submissions about the PAOM and the joinder of parties, contended that all the police officer parties, who were present at the Point Cook premises, trespassed and broke the law on 6 January 2022. She alleged that the police affidavit was false which affected the Magistrates’ Court decision to issue a search warrant. The admissibility of evidence obtained under the search warrant will be relevant in the Magistrates’ Court determination of the charges.

Ms Xu justified the joinder of the police parties on the basis that this Court will have to make factual findings about the events of 6 January 2022 in deciding whether to grant the plaintiffs the declaratory relief that they seek. The factual findings required include the police fraud in obtaining the search warrant, the unlawful arrests, trespass and other unlawful acts.

Ms Xu contended that the Magistrates’ Court would not hear the plaintiffs about these matters and she doubted whether it would hear or take into consideration arguments about the legality of the events of 6 January 2022.

Ms Xu disputed the VLSB’s submission that the plaintiffs had no evidence that it had communicated with other parties about them. The plaintiffs contended that the solicitor sent private messages to the Magistrate’s clerk confirming she was from the VLSB and observing the proceedings.

Ms Xu also disputed the suggestion that the VLSB, or the Manager could waive the plaintiffs’ legal privilege. She argued that the VLSB and the VLSB solicitor were responsible for the Magistrate’s decision to set aside the plaintiffs’ summonses on 7 November 2022 which was made on the wrong assumption that the Manager was an employee of the VLSB.

Ms Xu argued that the Uniform Law protected the VLSB from criminal liability, so it would not be adversely affected by the making of the declarations sought. However, she argued that because a decision made by the VLSB, or anyone working for it, was an administrative decision, not a judicial decision, it could be subject to collateral attack.

Ms Xu contended that in order to enable this Court to compel the VLSB to release the documents that the plaintiffs sought, the Manager and the VLSB solicitor should be parties to the proceeding.

The relief that the plaintiffs seek

The plaintiffs seek orders prohibiting the Magistrates’ Court from continuing the Olney prosecutions, orders affirming the plaintiffs’ entitlement to compensation for unlawful arrest pursuant to art 9 of the International Covenant on Civil and Political Rights and under common law, orders declaring that the State has converted goods seized from the plaintiffs’ premises on 6 January 2022 and ordering that they be paid compensation, orders that the VLSB parties release all information sought through the subpoenas that were dismissed on 7 November 2022, orders requiring the defendants to release to the plaintiffs all information in their possession concerning them, orders declaring the appropriateness of having the State promptly pay the plaintiffs’ costs in the Olney prosecutions on an indemnity basis and ordering the defendants to pay the plaintiffs’ costs of the current proceeding on an indemnity basis.

The defendants’ submissions about the PAOM and joinder of parties

The defendants opposed the plaintiffs being granted leave to file the PAOM and argued that they had provided no evidence of the proposed defendants’ interests in the issues to be decided in the proceeding. The plaintiffs had provided no basis, either by evidence or submissions, on which the Court might conclude that it was appropriate under r 9.06(b) that any of the proposed parties should be joined.

The State opposed the addition of the individual police officers as defendants as they could be represented by the State of Victoria under s 74 of the VP Act which makes the State responsible for their actions.

The State argued that the plaintiffs’ allegations about the falsity of the affidavit used to obtain the search warrant were a matter for the Magistrates’ Court to consider.

The State argued that the plaintiffs’ complaints about the barrister, the proposed twentieth defendant, who was briefed by the Victorian Government Solicitor’s Office (‘VGSO’) on the bail application were irrelevant and unrelated to the Olney proceedings. Nor had the plaintiffs provided any evidence against the proposed nineteenth defendant, who was an employee solicitor for Victoria Police and who was performing his professional duties.

The proposed twenty-fifth defendant, who was associated with AGLS, was not a proper or necessary party. The meaning of the allegation that Victoria Police attempted to incite him into making allegations was not clear.

The VLSB opposed the joinder of the VLSB parties. They had not been provided with all the documents upon which the plaintiffs relied and the allegations against them had nothing to do with the underlying criminal charges against the plaintiffs. The PAOM made wide ranging and unsubstantiated allegations against the VLSB, which failed to identify an action or decision which might be amenable to judicial review or declaratory relief. The plaintiffs were regularly expanding their claims and were thereby likely to cause substantial delay in the proceeding. The additional claims were liable to be struck out under s 63 of the Civil Procedure Act as having no real prospect of success. Although the plaintiffs were self-represented litigants, they still had to follow procedural rules.

The plaintiffs’ request that the Court make findings about whether the Manager and the VLSB’s solicitor’s conduct amounted to unprofessional conduct or professional misconduct under the Uniform Law did not give rise to a cause of action. The plaintiffs have commenced another proceeding against the VLSB parties challenging the appointment of the Manager to the Law Firm and any valid claim about the VLSB parties could be made in that proceeding.[12]
[12]S ECI 2022 04028 Kuksal & Ors v VLSB & Ors.

The VLSB solicitor’s actions in the hearing on 7 November 2022, when the Magistrate set aside the first plaintiff’s summonses, were associated with valid objections being made to those summonses. The Magistrate found that the summonses lacked a forensic purpose.[13] The VLSB successfully objected to 21 summonses issued by the first plaintiff.[14]
[13]T 434-435
[14]Affidavit of John Thomas Mazaris dated 1 June 2023, [11].

Analysis of the plaintiffs’ amendment and joinder applications

In order to obtain leave to file an amended pleading or originating motion and to join parties as a result, the applicant’s amendment must not be futile or liable to be struck out because it has no real prospect of success. [15]
[15]Mandie v Memart Nominees Pty Ltd [2016]VSCA 4; ABL Nominees Pty Ltd v Mackenzie [2014] VSC 460,[10]-[15] and O 36 of the Rules.

I refuse leave to the plaintiffs to file the PAOM dated 3 August 2023 and, for the sake of completeness, that dated 31 July 2023. I therefore refuse the plaintiffs leave to join the additional defendants named in those documents. As I later discuss, I will grant the plaintiffs leave to deliver an amended originating motion containing the amended claims against IBAC which are included in the PAOM of 3 August 2023. My reasons for otherwise refusing leave for the plaintiffs to file and serve the PAOM are as follows.

First, I accept that the Court’s has extensive power to grant declaratory relief. As the plurality stated in Ainsworth v Criminal Justice Commission:[16]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, 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 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”.

[16](1992) 175 CLR 564, 581-582 (Mason CJ, Dawson Toohey and Gaudron JJ) (citations omitted).

However, the PAOM seeks the grant of declarations concerning criminal proceedings and alleged criminal conduct. For example, declarations are sought that proposed defendants have engaged in a conspiracy to pervert the course of justice. Courts are reluctant to by-pass procedural and evidentiary rules of the criminal justice system that provide protection for the accused by making findings that may impinge on pending criminal prosecutions. One explanation for this reluctance is that:[17]

The amount of criminal work done by the superior courts would expand enormously if they were to indicate a willingness to grant declarations on single issues arising within a criminal matter… civil courts “exercise great caution before hearing and determining civil proceedings that raise common issues that are to be determined in criminal proceedings”.

[17]Mark Aronson et al, Judicial Review of Administrative Action Government Liability (Thomson Reuters, 2021, 7^th ed) 1077 (citations omitted).

In Imperial Tobacco Ltd v Attorney-General,[18] the House of Lords held that it was inappropriate for the courts to grant a declaration that certain conduct did not constitute a criminal offence after a prosecution had been started in respect of that conduct. Lord Lane stated that:[19]

Where there are concurrent proceedings in different courts between parties who for practical purposes are the same in each, and the same issue will have to be determined in each, the court has jurisdiction to stay one set of proceedings if it is just and convenient to do so or if the circumstances are such that one set of proceedings is vexatious and an abuse of process of the court. Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the court, it is not a proper exercise of the court’s discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged.

[18][1981] AC 718.

[19]Ibid 752.

By way of example, the plaintiffs apply for a declaration that the VLSB or proposed defendants perverted or attempted to pervert the course of justice. If the Court made such a declaration it would fragment criminal proceedings, a step which should not occur, except in special or exceptional cases.[20] To depart from this principle would delay the criminal proceeding and make its completion open to interlocutory applications and appeals.
[20]Seymour v Attorney-General (Cth) (1984) 4 FCR 498, 501.

Secondly, the declarations and remedies sought by the plaintiffs would result in this Court taking over the hearing of the charges pending in the Magistrates’ Court and, as the plaintiffs seek, make an order terminating them. That would be to bypass the trial jurisdiction of the Magistrates’ Court.

Thirdly, many of the declarations sought by the plaintiffs could only be made after the Court had heard evidence and made findings of fact. Courts are unlikely to grant a declaration where the case is fact sensitive and its outcome may depend on the view taken of the particular facts in the case.[21] As the High Court emphasised in Bass v Permanent Trustee Co Ltd,[22] in most instances, declarations can only be granted in respect of agreed or proved facts.
[21]R (Rushbridger) v Attorney General [2004] 1 AC 357, 368 [23] (Lord Steyn).
[22](1999) 198 CLR 334, 355 [44]-[56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

In this case, the trial court is the Magistrates’ Court and it is not for this Court to supplant its role. There are no agreed facts in this proceeding on which the Court could make the declarations that the plaintiffs seek. The PAOM raises a wide range of issues and the determination of most of them would require findings as to the facts. As I explained to the plaintiffs, the Court can only grant declarations after hearing the evidence from all the parties and making finding of facts based on that evidence. For this Court to grant such declarations would cut across the issues raised in the criminal proceeding which await determination in the Magistrates’ Court or the County Court.

Fourthly, the plaintiffs in the PAOM, in effect, seek that the Court conduct an inquiry into a wide range of events and the conduct of people with whom the plaintiffs have been involved, when those events are not all directly related to each other. It would be inconvenient to join the disparate claims in one proceeding. I raised with Mr Kuksal on a number of occasions whether it was convenient to have all these claims joined together. I put to him that he may be taken to be seeking the Court to undertake an inquiry into how he was treated by various Government and public bodies and officers.[23] In my opinion, the effect of granting the plaintiffs leave to rely on the PAOM would be to launch a form of court inquiry into the conspiracy that the first plaintiff alleges, under the guise of a judicial review application or an application for declarations. The Court should not undertake such an inquiry and it would not be a proper use of judicial review or declaratory proceedings to do so, especially while the hearing and determination of the criminal charges awaits.
[23]T 510–514.

Rule 9.02 provides for when two or more persons may be joined as plaintiffs or defendants in any proceeding as follows:

Two or more persons may be joined as plaintiffs or defendants in any proceeding -
(a) where–
(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; or
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or a series of transactions; or

(b) Where the Court, before or after the joinder, gives leave to do so.

Rule 9.04 gives the Court power to disallow any joinder of claims or of parties where it may embarrass or delay the trial in the proceeding or cause prejudice to any party or is otherwise inconvenient. In those circumstances, the Court may order that there be separate trials, any claim be excluded, any party be compensated by an award of costs or otherwise and any person be made a party on, or without, condition that that party be bound by the determination of the questions in the proceedings.

The basic principle governing the permissive joinder of parties is that the court should take whatever course seems to be most conducive to a just resolution of the dispute between the parties, but having regard to the desirability of limiting, so far as practical, the costs and delay of the litigation.[24] In this case, that basic principle is also subject to the application of the principle against the fragmentation of criminal proceedings.
[24]Bishop v Bridgelands Securities (1990) 25 FCR 311, 314.

In my opinion, to allow the PAOM and the joinder of the additional defendants would be contrary to the purposes of rr 9.02 and 9.04, because it would join claims that have no connection with each other. It would also infringe the principle against the fragmentation of criminal proceedings.

Fifthly, the plaintiffs’ claims against the VLSB and its agents can be raised in the other proceeding commenced in this Court by the plaintiffs against the VLSB, the Manager and others, which challenge decisions of the VLSB and its delegates or agents made concerning the Law Firm.[25]
[25]S ECI 2022 04028.

Sixthly if the plaintiffs were permitted to rely on the PAOM, this proceeding would become a ‘rolling’ judicial review proceeding or claim for declaratory remedies. That term is sometimes applied to applications made to add claims arising after the commencement of judicial review proceedings. It can equally be applied to applications to add further claims in proceedings seeking declaratory relief. A statement of judicial opposition to such rolling claims is found in R (Dolan) v Secretary of State for Health and Social Care[26] where the England and Wales Court of Appeal stated:[27]

In a number of recent cases this Court has noted that there is ‘increasing concern about the need for appropriate procedural rigour in judicial review cases’: see R(Spahiu) v Secretary of State for the Home Department: Practice Note, where earlier authorities are set out (Coulson LJ). The present case leads us to repeat that concern.
Procedural rigour is important not for its own sake. It is important in order for justice to be done. It is important that there must be fairness to all concerned, including the wider public as well as all the parties. It is important that everyone should know where they stand, so that, for example, the defendant can properly prepare evidence in a timely fashion.
This Court has also deprecated the trend towards what has become known as a ‘rolling’ approach to judicial review, in which fresh decisions, which have arisen after the original challenge and sometimes even after the first instance judgments, are sought to be challenged by way of amendment.

[26][2020] EWCA Civ 1605; [2021] 1 WLR 2326 (citations omitted) (Lord Burnett CJ, King and Singh LJJ).

[27]Ibid [116]-[118] (Lord Burnett CJ, King and Singh LJJ).

Seventhly, there is little factual evidence in support of the claims in the PAOM. Many parts of the affidavits upon which the plaintiffs rely have not yet been admitted into evidence and appear to contain many assertions that may not be admissible.

IBAC’s application

I will next consider IBAC’s application seeking summary dismissal of the plaintiffs’ proceeding against it.

Mr Kuksal’s complaint to IBAC

On 19 January 2022, Mr Kuksal made a complaint to IBAC by email, the subject matter of which was ‘disclosure concerning Victoria Police corruption’ and which concerned the police actions on 6 January 2022 and associated conduct. His email stated:

Further to my conversation with one of your officers last Monday, 10 January 2022, please find, at the end of this email, a link to a Dropbox folder containing evidence of corrupt conduct by members of Victoria Police. The evidence demonstrates instances of serious professional misconduct and unlawful activities by members of Victoria Police, including:
1.Breaking in and entering a private premises before the grant of a search warrant – on the presumption that it would be granted later.
2.Conspiracy to frame members of the public in criminal offences.
3.Disclosure of confidential information obtained through a search warrant to the media.
4.Conspiracy to seize goods unlawfully under the pretext of proceeds of crime.
5.Contempt of court – seizure of more goods than authorised by the search warrant and conspiracy to fabricate justification evidence.
6.Conspiracy to unlawfully arrest and falsely imprison members of the public.
7.Conspiracy to defraud the Court to unlawfully obtain a search warrant.

I would also like to advise you that a significant proportion of the items collected as evidence through the search warrant have already been disposed of. This is tantamount to both an abuse of process and destruction of evidence.

Between 25 January and 7 February 2022, Mr Kuksal sent the following materials to IBAC in support of his complaint:[28]
[28]Second Affidavit of Chloe Armstrong dated 21 June 2023, [14.1]–[14.8].

(a) copy of a search warrant issued on 6 January 2022 issued under section 465 of the Crimes Act 1958 (Vic);

(b) unconfirmed transcript of the bail hearing relating to the First Plaintiff, conducted on 7 January 2022;

(c) unconfirmed transcript of the police interview of the First Plaintiff, conducted on 6 January 2022;

(d) unconfirmed transcript of the police interview of the Second Plaintiff, conducted on 6 January 2022;

(e) unconfirmed transcript of the remand interview of the First Plaintiff, conducted on 6 January 2022;

(f) unconfirmed transcript between a Victoria Police Sergeant and the First Plaintiff;

(g) an ‘A Current Affair’ multimedia video relating to the First Plaintiff; and

(h) audio files relating to the first plaintiff’s arrest on 6 January 2022.

IBAC’s decision

By letter of 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. The letter stated that:

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 Commissioner 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 declarations that the plaintiff sought against IBAC

The plaintiffs in their originating motion seek declarations that:

[IBAC] committed an error of law and/or acted unreasonably in refusing to investigate the Plaintiffs’ complaint and/or IBAC’s failure to investigate the Victoria Police Officers involved in the events of 6 January 2022 that took place at the premises (Victoria Police Accused) was in contravention of its statutory obligations.
The conduct of the Victoria Police Accused satisfied the requirements set by s 4 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) for corrupt conduct.

By way of background to the plaintiffs’ attempts to further specify their case against IBAC, I note that their PAOM of 31 July 2023 sought determinations and declarations that:

The Independent Broad-based Anti-corruption Commission [IBAC] committed a jurisdiction[al] error or error of law in dismissing the Plaintiffs’ complaint on 5 April 2022.

The grounds on which that declaration was sought were:

IBAC’s Failure to Fulfil its Obligations
B.89In dismissing the Plaintiffs’ complaint on 5 April 2022, IBAC acted in a manner contrary to:
B.89.1 The objects of the IBAC Act, as set out in section 8 of that Act;
B.89.2Its obligations pursuant to sections 15, 58 and 59 of the IBAC Act;
B.89.3The purpose of the Public Interest Disclosures Act as specified in section 1 of that Act;
B.89.4Its obligations pursuant to sections 26 and 45 of the Public Interest Disclosures Act.

In the PAOM dated 3 August 2023, the plaintiffs seek determinations and declarations that IBAC had:

committed a jurisdiction[al] error or error of law in dismissing the plaintiffs’ complaint on 5 April 2022.

The plaintiffs also sought determinations and declarations that on 6 January 2022, the conduct of the ‘Alleged Police Offenders’:

1.Satisfied the definition of the term ‘improper conduct’ stipulated in section 4 of the Public Interest Disclosures Act 2012 (Vic) (Public Interest Disclosures Act);
2.Accorded with the meaning of the term ‘corrupt conduct’ specified in section 4 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act);
3.Contravened their oath of office, administered pursuant to section 50 of the Victorian Police Act 2013 (Vic) [Police Act];
4.Constituted a breach of discipline within the meaning of the term stipulated in section 125 of the Police Act; and
5.Breached the non-disclosure obligations of Victoria Police officers imposed by section 227 or 228 of the Police Act.

The plaintiffs’ grounds for seeking these declarations as set out in ground B.81 under the heading ‘IBAC’s Failure To Fulfil Its Obligations’ are:

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 Public Interest Disclosures Act as specified in section 1 of that Act;
4.Its obligations pursuant to sections 26 and 45 of the Public Interest Disclosure Act; and
5.IBAC’s obligation to consider the impact of its decision on the Plaintiffs’ human rights pursuant to section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

IBAC’s summons

By summons dated 14 July 2023, IBAC sought summary judgment of the plaintiffs’ proceeding against it pursuant to s 63 of the Civil Procedure Act, and an order that the plaintiffs’ claims against it be dismissed. In the alternative, IBAC sought an order that the plaintiffs’ claims against it be dismissed because they were an abuse of process of the Court.

In Lysaght Building Solutions v Blanalko Pty Ltd[29] Warren CJ and Nettle JA provided guidance on the construction of s 63, and the factors relevant when considering an application for summary judgment, in the following terms:[30]

… the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.

[29][2013] VSCA 158; (2013) 42 VR 27.

[30]Ibid [29] (Warren CJ and Nettle JA).

Warren CJ and Nettle JA, summarised the present state of authority on the granting of summary judgment as follows:[31]

Upon the present state of authority:
a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
[31]Ibid [35].

IBAC’s submissions

IBAC submitted that the plaintiffs’ claims against it had no real prospect of success.The plaintiffs had provided no evidence in support of the declaratory orders that they sought against it. They had been given an opportunity to provide exhibits to affidavits but had not done so.

During its submissions, IBAC accepted that Mr Kuksal had standing to bring his proceeding. However, IBAC submitted that Ms Xu had no standing to bring her claim because she had not made a complaint and it had not decided a complaint made by her.

Secondly, IBAC submitted that, even if both plaintiffs possessed standing, the declarations that they sought would have no utility. Declaratory relief will not be granted when the relief claimed concerns circumstances that have not occurred and may never occur. Even if the declarations sought were made, IBAC would remake the same decision under s 58 of the IBAC Act.

Thirdly, the declaration sought by the plaintiffs that the conduct of the ‘Alleged Police Offenders’ satisfied the requirements of s 4 of the IBAC Act for ‘corrupt conduct’ could not be sought in a judicial review application as it involves a form of merits review of IBAC’s decision. The Court does not have jurisdiction to hear an appeal from a decision of IBAC and cannot substitute its decision for IBAC’s.

Fourthly, the plaintiffs had not established that IBAC had committed any jurisdictional error and they bore the onus of so proving.[32] IBAC’s decision comprised one line, ‘IBAC has decided not to investigate or refer your complaint to another agency for investigation’. IBAC’s letter contained no reasons for its decision, nor was it obliged to do so.
[32]IBAC’s submissions, [52] citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [41].

IBAC was permitted to make a decision not to investigate a complaint by s 67 of the IBAC Act, which gives it an ‘absolute discretion’ to determine that a complaint does not warrant investigation. It is required to dismiss a complaint by ss 60(2) and 58(a) if it does not reasonably suspect that the conduct is corrupt conduct. In deciding whether to investigate a complaint, IBAC is permitted to take into account the prioritisation of investigations into allegations of serious or systemic public sector corruption and police misconduct. It is to be inferred that IBAC made a decision under s 67 and determined in its absolute discretion that the complaint did not warrant investigation because do so would not prioritise complaints involving systemic misconduct.

IBAC relied on the fact that the plaintiffs’ claims for judicial review were out of time being commenced beyond the 60-day period specified in r 56.02 and that they had not applied for an extension of time. The claims about the events of 6 January 2022 were made eight-and-a-half months out of time. On 2 June 2023, the Court ordered the plaintiffs to make any application for an extension of time by 16 June 2023, but they did not do so. IBAC’s supporting affidavit explained that it had suffered prejudice from the plaintiffs’ conduct of the proceeding, including the significant delay in its commencement.[33] IBAC is a public authority with limited resources and the plaintiffs’ failure to specify their case against it had caused it to incur unnecessary costs in pursuing them for further information, but to no avail. The plaintiffs failed to apply for directions for the conduct of the proceeding in accordance with the Rules and so IBAC had to do so.
[33]Affidavit of Chloe Jennifer Armstrong of 21 June 2023.

While IBAC accepted that the limitation period in r 56.02 for judicial review applications did not apply to proceedings seeking purely declaratory relief, it submitted that a plaintiff may be deprived of declaratory orders if it has delayed in seeking them. Otherwise, plaintiffs could walk around the limitation period in r 56.02 by bringing proceedings seeking declarations.[34]
[34]Wyloo Metals Pty Ltd v Quarry Pty Ltd [2021] WASC 356 at [156]-[176].

IBAC submitted that the plaintiffs’ proposed ground that it had failed to comply with the requirements of s 38 of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) really involved the contention that IBAC was required to consider the plaintiffs’ human rights in determining whether the police engaged in corrupt conduct. That ground could not succeed because IBAC had to apply the existing definition of the term ‘corrupt conduct’ in s 4 of the IBAC Act, which contained no such requirement. IBAC argued that the plaintiffs’ reliance on the Charter was an example of them adding issues in real time during the proceeding which had no real prospects of success.

IBAC submitted that, in any event, the plaintiffs had not shown that its decision not to investigate the complaint interfered with their human rights or that it caused them any ongoing detriment or repercussion. There was no proof that IBAC did not give consideration to the first plaintiff’s human rights. Any breach of the Charter was not a jurisdictional error.

IBAC submitted that the facts of this case differed from those considered by the Court of Appeal in Bare v Independent Broad-based Anti-corruption Commission,[35] on which the plaintiffs relied. In that case, the plaintiffs presented evidence that they were suffering ongoing repercussions from the Director of Police Integrity’s decision not to investigate their complaint.[36] The operation of the legislation in that case turned on whether an investigation was in the public interest, which was a less prescriptive requirement than that contained in the IBAC Act. In addition, in that case, the decision-maker gave reasons for his decision.
[35](2015) 48 VR 129 (‘Bare’s Case’).
[36]Ibid [221].

IBAC also submitted that it could not have made a different decision about Mr Kuksal’s complaint, because of its mandatory obligation under s 58 to take one of the following steps: to dismiss the complaint or notification if there were grounds to do so, to investigate the complaint or notification, or to make a referral of the complaint or notification. In addition, IBAC had an absolute discretion to dismiss the complaint under s 67, even if it did suspect that police officers had engaged in corrupt conduct. Therefore, IBAC could not reasonably have acted differently in respect of the complaint and, therefore s 38(2) of the Charter applied to claims under the Charter, so that it was not required to give consideration to the plaintiffs’ Charter rights in making its decision.

IBAC pointed out that the plaintiffs’ claims relying on the Charter were made one year and four months after its decision was made and eight months after the originating motion was filed. The plaintiffs had not explained that delay. IBAC was prejudiced by such a late claim and contended that if the claim was not arguable, the Court should not order under s 64 of the Civil Procedure Act that it proceed to trial.

The plaintiffs did not have a right to any particular outcome of the first plaintiff’s complaint. IBAC had provided him with the rights that he claimed under the IBAC Act, namely, to make a complaint and to receive its decision about it. The Model Litigant Obligations were not relevant to IBAC’s summary judgment application because it was not relying on a technical argument, but contending that the plaintiffs had no arguable case against it.

IBAC also contended that Mr Kuksal’s complaint was not a public interest disclosure or complaint under the PID Act. In any event, that issue had no bearing on whether IBAC’s decision about whether to investigate a corrupt conduct complaint was valid. A protected disclosure complaint is a disclosure that IBAC has determined under s 26 of the PID Act to be a protected disclosure complaint. Section 7 (1)(a) of the IBAC Act has the effect that a protected disclosure complaint, ie a disclosure that IBAC has determined under s 26 of the PID Act to be a protected disclosure complaint, that would not otherwise constitute a complaint, is taken to be a complaint made to IBAC under s 51, which provides for complaints to IBAC about corrupt conduct. The result is that a public interest complaint under the PID Act is ‘funnelled’ into the corrupt conduct provisions of the IBAC Act and becomes subject to IBAC’s powers under ss 58 and 67 to dismiss it.[37] The escalation of a complaint to public interest complaint status is therefore irrelevant to the application of the corrupt conduct provisions of the IBAC Act.
[37]T378.

Abuse of process

IBAC submitted, in the alternative, that the plaintiffs’ claims should be summarily dismissed under r 23.01 as an abuse of process because they had failed to present any evidence to substantiate their claims against IBAC.

Mr Kuksal’s submissions opposing IBAC’s summons for summary judgment

The first plaintiff, Mr Kuksal, submitted that the plaintiffs had standing to bring the proceeding against IBAC.[38] Ms Xu had standing because the conduct of which he complained affected her. He contended that his complaint was also made on behalf of her.[39]
[38]Mr Kuksal relied on Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247.
[39]T 202.

Mr Kuksal also argued that this proceeding did have utility because, if he was successful, and the matter was remitted for reconsideration by IBAC, his complaint might be decided differently by different IBAC officers.

Mr Kuksal submitted that complaints to IBAC did not have to identify specific statutory provisions on which the complainant relied. The IBAC Act was intended to be used by people without sharp legal minds and it was up to IBAC to determine the appropriate statutory provision under which a complaint should be considered.

Mr Kuksal argued that IBAC did not consider the plaintiffs’ Charter rights in determining whether the police officers engaged in corrupt conduct or improper conduct. The relevant Charter rights were the right to liberty, the right to be treated equally before the law, the right to dignity, the right to personal safety and the right to mobility. Mr Kuksal submitted that IBAC was on notice of the plaintiffs’ reliance on the Charter as during the hearing he had made clear that he relied on Bare’s Case.

Mr Kuksal contended that IBAC erred by failing to determine that his complaint or disclosure was a public interest complaint within s 26(3)(a)(i) of the PID Act and that, as a result, its decision was a nullity. IBAC’s determination did not involve the exercise of a discretion. The audio recording of the events of 6 January 2022, and the other documents provided to IBAC, clearly showed police misconduct and that the police officers recorded in the video had breached provisions of the VP Act. In addition, they had disclosed material to the Channel Nine program ‘A Current Affair’.

If IBAC had not erred by refusing to investigate Mr Kuksal’s complaint, it might have been prioritised and considered by IBAC officers who might have taken the complaint seriously. Because that had not occurred, he had suffered ‘detrimental action’.[40] If IBAC had found, as it should have, that his complaint was a public interest disclosure, that finding would have assisted the plaintiffs in taking their complaint about police conduct to the Chief Commissioner and others. Mr Kuksal also argued that IBAC had failed to give reasons for its decision that the disclosure was not a public interest complaint as it was required to do.[41]
[40]T 703.
[41]IBAC Act s 59(2)(b).

Ms Xu’s submissions

Ms Xu argued that she did have standing to challenge IBAC’s decision because, although she did not make a complaint to IBAC directly, Mr Kuksal’s complaint made via IBAC’s online complaint form encompassed her complaint as well as his. The online complaint form did not allow a second person to be added as a complainant. She also stated that it was her understanding that Mr Kuksal had ‘informally’ expressed to an employee of IBAC that the complaint was made on both of their behalves. In any event, if she had made a complaint it would have had the same outcome as Mr Kuksal’s complaint.

Ms Xu submitted that there were many reasons for the plaintiffs’ delay in bringing this case. Primarily, she relied on delays in the Magistrates’ Court releasing documents subpoenaed by the plaintiffs in November 2022. She also contended that the plaintiffs have been attempting to work with the prosecution to resolve the criminal proceedings, but that those attempts ‘didn’t end well.’[42] Further delay occurred as a result of the police prosecutors referring the prosecution of Mr Kuksal’s matters to the VGSO, a course which she described as most unusual.
[42]T 360.

Ms Xu contended that the delay was also due to the State, which has been maliciously prosecuting Mr Kuksal in other matters. Because the plaintiffs are self-represented litigants, they experience an added strain in producing documents.

Ms Xu argued that the plaintiffs did not have to seek an extension of time prior to commencing the proceeding, but could do so during, or at the end of, the substantive hearing.[43]
[43]T 352-353; cf Mr Kuksal’s submission, T 29 (2 June 2023).

Additionally, Ms Xu referred to ‘a lot of other more prejudice that’s against [her] and Mr Kuksal’[44] which had contributed to the delays but said ‘that we don’t have time to take the court through, about whey we are late.’[45]
[44]T 362.
[45]Ibid.

The IBAC Act

Section 1 of the IBAC Act states that its main purpose is to establish the Independent Broad-based Anti-corruption Commission. IBAC’s functions are listed in s 15 as:

(1A) In performing its functions, the IBAC must prioritise its attention to the investigation and exposure of corrupt conduct which the IBAC considers may constitute serious corrupt conduct or systemic corrupt conduct.
(1B) Subsection (1A) does not restrict the IBAC’s discretion to determine to investigate any matter that the IBAC considers may constitute corrupt conduct.
(2) Without limiting the generality of subsection (1), the IBAC has the following functions—
(a) to identify, expose and investigate corrupt conduct;
(b) to identify, expose and investigate police personnel misconduct;
(c) to assess police personnel conduct.
(3) Without limiting the generality of subsection (2), the IBAC has the following functions under subsection (2)—
(a) to receive complaints and notifications to the IBAC in relation to corrupt conduct;
(b) in relation to police personnel conduct—
(i) to receive police personnel conduct complaints and notifications to the IBAC;
(ii) to ensure that the highest ethical and professional standards are maintained by police officers and protective services officers;
(iii) to ensure that police officers and protective services officers have regard to the human rights set out in the Charter of Human Rights and Responsibilities Act 2006;
(ba) to conduct preliminary inquiries;
(c) to hold examinations;
(d) to make referrals to other persons or bodies.
(4) Without limiting subsections (2) and (3), the IBAC has the following functions in relation to public interest complaints—
(a) to investigate any of those complaints that it may investigate in accordance with—
(i) its corrupt conduct investigative functions; or
(ii) its police personnel conduct investigative functions;
(b) to refer the complaints to other persons or bodies to investigate;
(c) to dismiss the complaints
…
(7) For the purpose of achieving the objects of this Act, the IBAC has the following functions—
(a) to receive information, conduct research and collect intelligence, and to use that information, research and intelligence in support of investigations;
(b) to report on, and make recommendations as a result of, the performance of its duties and functions.
…

Section 5 of the IBAC Act defines the terms ‘police personnel conduct’, ‘police personnel conduct complaint’ and ‘police personnel misconduct’ as:

For the purposes of this Act—
police personnel conduct means—
(a) in relation to a public officer who is a police officer or protective services officer—
(i) an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a police officer or protective services officer; or
(ii) conduct which constitutes an offence punishable by imprisonment; or
(iii) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or
(iv) disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);

(b) in relation to a public officer who is a Victoria Police employee or police recruit—
(i) an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a Victoria Police employee or police recruit; or
(ii) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it;

police personnel conduct complaint means—
(a) a complaint made to the IBAC under section 167 of the Victoria Police Act 2013; or
(b) a complaint made to the IBAC in relation to the police personnel conduct of a member of Victoria Police personnel other than a police officer or protective services officer
police personnel misconduct means—
(a) in relation to a public officer who is a police officer or protective services officer—
(i) conduct which constitutes an offence punishable by imprisonment; or
(ii) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or
(iii) disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);

(b) in relation to a public officer who is a Victoria Police employee or police recruit, conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it.

Section 7 refers to protected disclosure complaints and provides that, for the purposes of the Act, other than Divisions 1 and 2 of Part 3, a protected disclosure complaint that would not otherwise constitute a complaint, is taken to be a complaint made to IBAC under s 51, or if the disclosure relates to a member of Victoria Police personnel – a police personnel conduct complaint made to IBAC under s 52. As defined by s 3(1), the term ‘protected disclosure complaint’ means:

[133]T 17 (2 June 2023).

IBAC also referred to the following exchanges on 2 June between Mr Kuksal and the Bench:[134]
[134]T 21-24 (2 June 2023).

HIS HONOUR: In your claim against IBAC it's a judicial review ground, it's Wednesbury unreasonable[ness] that's judicial review that fits into order 56
MR KUKSAL: We're seeking judicial review on two grounds in the originating motion
…
MR KUKSAL: To clarify what our position is in respect of the orders, there are some judicial review specific orders like for Wednesbury unreasonableness that we rely on order 56 for. But it's our position that some of the orders can also be independently pursued through the medium of declaratory relief. So to the extent that we are also relying on order 56, we accept that we should get the court's leave and we're happy to come to an agreement in relation to a timeframe
…
HIS HONOUR: That may be, but to the extent that you're seeking order 56, IBAC says, ‘Well please seek an extension of time’
MR KUKSAL: We accept that
…
HIS HONOUR: I've said two or three times now, why can't IBAC say, ‘In your originating motion, you seek to rely on order 56’.[135]
[135]T 27 (2 June 2023).
MR KUKSAL: I'm saying they can say that…
HIS HONOUR: They are, and they want you to make the application if you’re going to make it.
MR KUKSAL: And we’re…
HIS HONOUR: Otherwise, they want…
MR KUKSAL: No, we’re…we’re happy to…
HIS HONOUR: …the order 56 claim against them to be dismissed.
MR KUKSAL: We're happy to, - we thought that we had made the application when we launched the originating motion. We accept that they require further particularisation, but they have conceded that they understand which decision we’re speaking about.
…
HIS HONOUR: Well, I'm taking from my discussion with you I won't say accept, but understand that if you're going to rely on order 56, you have to apply for an extension of time in which to do so.^[136]
MR KUKSAL: Yep.

[136]T 29 (2 June 2023).

IBAC accepted that although claims brought under both O 56 and for the grant of declaratory relief would entail similar evidence, the submissions made in relation to each would differ, as the grant of declaratory relief is subject to a more confined discretion. It reiterated that if the plaintiffs had stated on 2 June that they were not relying on O 56, as they eventually stated on 23 June, it would have withdrawn its summons then. Counsel for IBAC stated:[137]

MS BRENKER: … the costs that were incurred in preparing the amended summons which regularise the position at law and counsel's appearance on 23 June where the abandonment of the order 56 claim only occurred after I had made my submissions, were all costs that were thrown away.

[137]T 63.

IBAC issued its summons on 1 June 2023. The following day, at the hearing on 2 June, the plaintiffs maintained that they still relied upon O 56, at least in respect of some claims. The Court accordingly made orders giving the plaintiffs leave to make an application for an extension of time to commence its proceeding against IBAC. If the plaintiffs had dropped their O 56 claim, IBAC would not have pursued its summons.

Analysis – Costs of IBAC’s summons

Even though I ordered IBAC’s summons of 1 June 2023 to be dismissed, I consider that it is entitled to an order that the plaintiffs pay its costs thrown away of and incidental to that summons. I fix those in the sum of $7,295.00 for disbursements as IBAC sought and which I consider to be a reasonable amount.

IBAC acted reasonably in issuing the summons and the plaintiffs only withdrew the O 56 claim at the hearing on 23 June. The originating motion sought orders under O 56 and declarations, but the O 56 claim was well out of time. The originating motion sought an extension of time pursuant to r 56.02 to apply for judicial review in relation to the order to issuing the search warrant, the charges brought against the plaintiffs and the proceedings on 6 and 7 January 2022 , the bail order of 7 January 2022 and IBAC’s decision conveyed to the plaintiffs on 8 April 2022. The plaintiffs were given an opportunity to seek an extension of time, but not did so. They did not make it clear that they were no longer making a judicial review application under O 56 until 23 June 2023.[138] The transcript references on which IBAC relied, and to which I have referred, establish that to be the case.
[138]T 61-62 (23 June 2023).

I do not accept that IBAC acted unreasonably in failing to accept the plaintiffs’ offer of 19 June 2023. That offer stated that ‘owing to the discovery of a considerable volume of new evidence in relation to the Olney proceedings’, they intended to lodge a fresh complaint to IBAC. It stated that the plaintiffs were willing to consider consenting to IBAC’s removal from the proceeding on conditions. Those conditions contained detailed requirements that IBAC nominate a case worker with whom Mr Kuksal and Ms Xu might confer to share evidence of serious professional misconduct. The case worker was then required to provide them with a comprehensive report regarding IBAC’s evaluation of the evidence and its decision on whether it intended to act on the fresh complaint. If IBAC decided not to pursue the fresh complaint, the case worker was to provide Mr Kuksal and Ms Xu with satisfactory reasons for that decision and ‘address their queries regarding its considerations during the conference through which they convey IBAC’s decision.’ These conditions required IBAC to do more than it would have been required to do if the plaintiffs had been successful in this proceeding. IBAC did not accept the offer.

IBAC did not breach the Model Litigant Guidelines. It gave the plaintiffs the opportunity to seek an extension of time. When the plaintiffs did not do so, IBAC issued its summons, which was only abandoned on 23 June 2023 after it had clarified, as it was entitled to, that the plaintiffs were not pursuing the O 56 application.

I do not consider that the plaintiffs are entitled to any costs associated with IBAC’s summons of 1 June 2023. In my opinion, the conditions attached to the plaintiffs’ offer required IBAC to disregard its decision not to investigate the plaintiffs’ complaint and required more than the plaintiffs might have obtained if they were successful in this proceeding. The offer was not made as an offer of compromise under the Rules and gave IBAC little more than a day to consider and accept it.

Costs of the VLSB’s summons dated 1 June 2023

I next consider the costs of the VLSB’s summons of 1 June 2023. On 23 June 2023, the Court heard submissions about the VLSB’s summons of 1 June 2023 which sought its removal as a party to the proceeding. I dismissed this summons for reasons that I gave on 28 July 2023.[139] I found that the VLSB remained a proper and necessary party for the purposes of r 9.06 and I did not consider its removal to be appropriate. I took into account that it is common in judicial review proceedings for a plaintiff to join as defendant not only the decision-maker who made the challenged decision or order, but also the party who sought the decision or order at first instance. That is because that party has an interest in maintaining the order that is challenged.
[139]Kuksal v State of Victoria [2023] VSC 438.

On 28 July, I directed the parties to address the issue of costs of the VLSB’s summons in written submissions. I will now summarise those submissions.

The plaintiffs’ submissions on costs

The plaintiffs made four points about the costs of the summons. The first, that the Court has a duty to give effect to the overarching purpose and obligations of the Civil Procedure Act. The second, that the VLSB had breached the Model Litigant Obligations. The third was why the plaintiffs were entitled to costs. The fourth was its application under ss 29 and 30 of the Civil Procedure Act. I will summarise the plaintiffs’ submissions about those points in turn.

The plaintiffs submitted that the VLSB had not complied with the overarching obligations in the Civil Procedure Act. At the same time, the plaintiffs submitted that the Court should not insist on timely compliance with procedural requirements if doing so could compromise the achievement of the overriding purpose of that Act. The plaintiffs argued that a pedantic insistence on technical conformity with the pleadings’ rules would deprive pleadings of their role in providing procedural fairness. As long as the pleadings define the issues in controversy, disclose the cause of action or the defence, and notify the parties of the nature of the case they have to meet at trial, that is sufficient. They relied on the High Court decision in Banque Commerciale SA (in liq) v Akhil Holdings Ltd,[140] for its description of the importance and flexibility of pleadings in cases containing allegations of fraud.
[140](1990) 169 CLR 279.

The plaintiffs submitted that the VLSB had adopted an unreasonable approach in responding to their originating motion. They claimed they had a right to rely on their undisputed evidence to establish the VLSB’s equitable fraud. The plaintiffs argued that the obligations imposed on the VLSB under the Model Litigant Guidelines are greater than those imposed on private litigants.

The plaintiffs submitted that the Court has a discretion in the award of costs, with the guiding principle being that costs follow the event. Costs orders are made to indemnify a party for the legal expenses they incur. A successful litigant, who is not represented by a lawyer, is only eligible to receive out-of-pocket expenses. If the litigant can demonstrate that they have engaged persons on a commercial or quasi-commercial basis to provide services in connection with the litigation, they may be compensated for those costs or disbursements.

The plaintiffs relied on the Court’s power to award costs against a legal practitioner who has contravened an overarching obligation in the Civil Procedure Act, among which is the obligation to use ‘reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate’ to the complexity or importance of the issues in dispute and the amount in dispute.[141]
[141]Civil Procedure Act 2010 s 24.

Section 29 of the Civil Procedure Act provides that:

(1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to—
(a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;
(b) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately;
(c) an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation, including
(i) an order for penalty interest in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding; or
(ii) an order for no interest or reduced interest;

(d) an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;
(e) an order that the person not be permitted to take specified steps in the civil proceeding;
(f) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.

(2) An order under this section may be made—
(a) on the application of—
(i) any party to the civil proceeding; or
(ii) any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or

(b) on the court's own motion.

(3) This section does not limit any other power of a court to make any order, including any order as to costs.

Section 30 of the Civil Procedure Act provides for the manner in which applications under s 29 are to be made. The plaintiffs sought orders under ss 29 and 30 against the VLSB.

The plaintiffs contended that the determination of whether a breach of the overarching obligations has occurred is to be conducted by objectively evaluating the conduct of the solicitor alleged to have breached those obligations having regard to the issues and the quantum in dispute in the proceeding. The plaintiffs submitted that the VLSB’s application to be removed as a party was made in bad faith because it remained interested in maintaining the improper benefits it had obtained through orders made in the Magistrates’ Court prosecutions which the plaintiffs contended to be unlawful. They contended that the VLSB continued to pursue specious technical arguments aimed at exploiting alleged deficiencies in the form of the plaintiffs’ originating motion, although the plaintiffs were self-represented litigants.

The VLSB had been aware of the plaintiffs’ intention to file an amended originating motion and had been sent a copy of it prior to the commencement of the hearing on 23 June 2023. This amendment addressed the purported deficiencies in the originating motion which the VLSB had sought to exploit by making an application to be removed as a party.

Mr Kuksal cited Williams v Spautz[142] for the proposition that Court proceedings or applications constitute an abuse of process if they have no prospect of success, or are ostensibly maintained in the pursuit of orders that may not be lawfully obtained through the proceedings.
[142](1992) 174 CLR 509.

The VLSB unreasonably rejected the plaintiffs’ offer of 9 June 2023 to consent to its removal conditional upon its confirmation that it no longer opposed their application to have the Court declare the VLSB’s orders invalid. The offer also required the VLSB to bear its own costs up until that stage of the proceeding. These conditions were reasonable given that the plaintiffs had been obliged to include the VLSB as a defendant and that the offer had been made at the earliest opportunity following the plaintiffs learning that the VLSB intended to pursue its removal application. Its written submissions sought to rely on dishonest and/or irrational justifications for its failure to negotiate a resolution of the plaintiffs’ proceeding against it.

VLSB’s response to the plaintiffs’ costs application

The VLSB argued that it was well established that a self-represented litigant may not recover ‘professional costs’, which are ‘confined to money paid or liabilities incurred for professional legal services’.[143] The VLSB accepted that a self-represented litigant may recover out-of-pocket expenses which are ‘actually, necessarily and reasonably incurred’ in respect of a proceeding, and ‘which fall within the established bounds of claim’.[144] However, it was unclear what out-of-pocket expenses the plaintiffs claimed.
[143]VLSB’s Written Submissions on Costs dated 15 August 2023, [7].
[144]Ibid [8].

The costs of the VLSB’s summons, which were a minor component of the 23 June, hearing, should not be determined as a discrete item. The default or presumed position created by r 63.20 is that the costs of interlocutory applications should be costs in the proceeding.

The VLSB relied on other factors to oppose the plaintiffs’ application for costs or out of pocket expenses. It argued that the amount of such expenses was not readily divisible, nor was it likely that any meaningful out of pocket expenses were incurred. The summons was prosecuted quickly and efficiently. Moreover, a discrete costs order about such expenses would fragment the proceeding. The question of costs should be left to the conclusion of the proceeding.

The VLSB submitted that the plaintiffs’ arguments with respect to the Civil Procedure Act and Model Litigant Guidelines and ethical responsibilities had no evidentiary basis and should be rejected. The VLSB did not contravene its obligation under the Civil Procedure Act or as a Model Litigant by issuing the summons. Rather, the summons raised a substantive, non-technical point – that it was not properly a party to the judicial review proceeding as it did not make the decision under review. While the summons was ultimately unsuccessful, the application was reasonably made, and had the VLSB succeeded, its removal from the proceeding would have likely minimised costs for all parties.

The VLSB also referred to the fact that the plaintiffs had circulated an array of lengthy documents which, on their face, purported to have been prepared on their behalf by an entity known as People Shop Pty Ltd. The preparation of written submissions, affidavits and summons by a person on behalf of other persons, particularly when done for a fee or reward, may be indicative that the first person is engaging in legal practice. The People Shop is not presently an incorporated legal practice registered with the VLSB. Its sole director does not have a practising certificate. The VLSB submitted that in light of the unclear provenance of the documents circulated by the plaintiffs, the preferable course was to assess costs, and whether any party was potentially disentitled to them by reason of contravening the Uniform Law, at the conclusion of the proceeding.

The VLSB provided a written submission regarding Mr Kuksal’s letter dated 9 June 2023, which he contended contained an offer to settle the proceeding that was unreasonably refused. The substance of the plaintiffs’ offer was to consent to the removal of the VLSB as a party to the proceeding subject to two conditions,[145] which in summary were, that:

(a) The VLSB and its agents would no longer object to the plaintiffs’ application seeking that the orders made by the Magistrate on 7 November 2022 dismissing two subpoenas be declared a nullity or alternatively, be set aside; and

(b) the Board would not pursue costs against the plaintiffs.

[145]VLSB’s Written Submissions on Offer dated 10 October 2023, [4].

The VLSB contended that the Court ought to disregard the plaintiffs’ purported offer because it was invalid. It was not made in accordance with O 26 of the Rules nor did it contain a statement to the effect that it was served in accordance with that Order. The offer did not state whether it was inclusive of the plaintiffs’ costs or that costs were to be paid or received, as the case may be, in addition to the offer, in contravention of r 26.02(4). Moreover, the time for acceptance of the offer was less than the 14 days after service, required by r 26.03(3), as the ‘offer’ was expressed to be open for a period of approximately 1.5 business days.

Nor was the offer a valid Calderbank offer and did not purport to be. It was not clear, precise and certain so as to make it capable of acceptance, nor did it provide a reasonable time for acceptance. The offer contained no reasons explaining why it should be accepted and did not contain a warning that it would be relied upon in relation to costs.

The VLSB contended that in the event that the Court found that the offer was valid, then it had not acted unreasonably in not accepting the offer because of the plaintiffs’ conduct in this proceeding, which included making a series of applications and allegations against the VLSB. The VLSB was cautious about entering into agreements, including with the plaintiffs, when there was potential for those agreements to be challenged by a party with whom they were made.

Analysis – Costs of the VLSB summons dated 1 June

In Cachia v Hanes,[146] the High Court stated:[147]

It is fundamental to the appellant’s argument that the time he lost in preparing and conducting his case constitutes “costs” within the meaning of this rule. He is, however, unable to sustain that proposition. The “costs” provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of “costs”.

[146](1994) 179 CLR 403, 409 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ). See also Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333.

[147](1994) 179 CLR 403, 409.

In Ganesh v National Australia Bank Ltd,[148] the Court of Appeal, after referring to Cachia v Hanes, accepted that a self-represented litigant was in the same position as to the recovery of disbursements as legally-represented parties were.
[148][2021] VSCA 45, [89].

The hearing of the VLSB’s summons seeking its removal as a party occurred on 23 June 2023. At the same hearing, submissions were made about IBAC’s summons of 1 June 2023 and the plaintiffs made an unsuccessful application for my recusal. The submissions about the VLSB’s summons occupied a lesser part of the hearing.

In written submissions about the costs of the VLSB’s summons, the plaintiffs made an application for costs orders and relief pursuant to s 30 of the Civil Procedure Act. They also alleged that the VLSB had contravened the Model Litigant Guidelines, that its removal as a party application was pursued fraudulently, that it endeavoured to unethically exploit the delay in the amendment to the originating motion and that it unconscionably abused the Court process and unreasonably rejected the plaintiffs’ offer. I do not accept any of those arguments. I consider that VLSB made a legitimate application, although I did not agree that I should order its removal as a party. The VLSB was entitled to bring its summons seeking to be removed as a party and did not breach the Model Litigant Guidelines in doing so. For similar reasons the plaintiffs’ application under ss 29 and 30 of the Civil Procedure Act is dismissed. The plaintiffs have not established that the VLSB breached any overarching obligation. The plaintiffs’ offer was conditional upon the VLSB and its agents no longer objecting to the plaintiffs’ application that orders made by a Magistrate made on 7 November 2022 dismissing two subpoenas be declared a nullity or be set aside and that the VLSB would not pursue costs against the plaintiffs. Even assuming that the offer was a valid offer under the Rules or a Calderbank offer, I am not satisfied that the VLSB unreasonably refused it. The plaintiffs’ challenge to the orders of 7 November 2022 is yet to be determined.

The result is that the plaintiffs while successful in resisting the VLSB’s application to be removed as a party, were unsuccessful in the applications that they made. In those circumstances, the appropriate order is that the costs or disbursements associated with the VLSB’s summons of 1 June 2023 should be reserved.

For the sake of completeness, I note that I do not consider that the question of whether the plaintiffs have been associated with unqualified legal practice is relevant to the question of costs that I have had to decide.

Conclusion

I will make orders as follows:

(a) The plaintiffs’ application dated 30 October 2023 to reopen the hearing after judgment was reserved on 10 August 2023 is dismissed save for the admission into evidence of the Prosecution note dated 7 November 2023 and the Magistrates’ Court of Victoria’s orders of 8 November 2023 striking out the charges against the second plaintiff.

(b) The plaintiffs’ written applications made by emails on 11 and 14 December 2023 that the Court have regard to ‘Newly Discovered Evidence’ is dismissed.

(c) The plaintiffs’ written applications made by emails on 15, 16 and 19 December 2023 that the court have regard to ‘Newly Discovered Evidence’ is dismissed.

(d) The plaintiffs’ applications for leave to file and serve an amended originating motion in the form they circulated dated 31 July 2023 and 3 August 2023 are refused.

(e) On or before 20 January 2024, the plaintiffs have leave to file and serve on the fourth defendant an amended originating motion containing the declarations they sought against it in their proposed amended originating motion dated 3 August 2023 and grounds B81.1 to B81.5 of that document.

(f) The fourth defendant’s summons dated 14 July 2023 is dismissed.

(g) The plaintiffs pay the fourth defendant’s costs of its summons dated 1 June 2023 which are fixed at $7,295.00.

(h) The plaintiffs’ proceeding against the fourth defendant is adjourned for directions to 10:00am on 28 February 2024.

(i) This proceeding against the first, second and third defendants is stayed until the determination of the charges against the first plaintiff, Shivesh Kuksal, being Magistrates’ Court of Victoria proceeding No N10047659 and the determination of any appeal from, or judicial review (including applications for declarations) of, the determination of those charges.

(j) The costs of the third defendant’s summons of 1 June 2023 be reserved.

(k) The plaintiffs’ application for orders under ss 29 and 30 and of the Civil Procedure Act 2010 against the VLSB is dismissed.

I will give directions for the parties to make written submissions about costs of the hearings in respect to which this judgment relates other than those foreshadowed in the previous paragraph.

SCHEDULE OF PARTIES

BETWEEN:
SHIVESH KUKSAL	First Plaintiff
LULU XU	Second Plaintiff
AND
THE 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

[2023] VSC 625

20 December 2023