Kuksal v State of Victoria (Costs)
[2024] VSC 671
•1 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04808
| SHIVESH KUKSAL & ANOR (according to the attached schedule) | Plaintiffs |
| v | |
| THE STATE OF VICTORIA & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 1 November 2024 |
CASE MAY BE CITED AS: | Kuksal v State of Victoria (Costs) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 671 |
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JUDICIAL REVIEW – Costs – Interlocutory applications – Costs of temporary stay of proceeding – Costs of plaintiffs’ unsuccessful applications to amend originating motion and join proposed defendants – Costs of plaintiffs’ unsuccessful reopening applications – Plaintiff taking unreasonable time to present applications – Voluminous material filed – Breaches of overarching obligations – Costs of defendant’s unsuccessful application for summary judgment – Civil Procedure Act 2010 ss 18, 23, 24, 25.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | In person | |
For the First Defendant | Ms M Cananzi | Victorian Government Solicitor’s Office |
For the Third Defendant | Mr L McAuliffe | Corrs Chambers Westgarth |
| For the Fourth Defendant | Ms S C B Brenker | Solicitor for the Independent Broad-based Anti-corruption Commission |
HIS HONOUR:
This costs judgment follows the delivery of my principal judgment and making of orders on 20 December 2023.[1] I ordered a temporary stay of the plaintiffs’ proceedings against the first, second and third defendants in order to avoid the fragmentation of criminal proceedings against the first plaintiff that were pending in the Magistrates’ Court. I refused the plaintiffs’ applications for leave to rely on amended versions of their originating motion and to join persons as defendants, to reopen their case and to rely upon further evidence. I did however give them leave to file and serve on the Independent Broad-based Anti-corruption Commission (‘IBAC’), the fourth-defendant, an amended originating motion. I refused IBAC’s application for summary dismissal of the plaintiffs’ proceeding against it and adjourned that part of the proceeding to a directions hearing.
[1]Kuksal v State of Victoria [2023] VSC 625 (‘Principal Judgment’).
I will next mention some background matters. The proceedings brought in this Court sought judicial review or declaratory remedies. As mentioned, I granted a temporary stay of the proceeding because of the principle against the fragmentation of criminal proceedings and the absence of any special or exceptional circumstances that justified the Court departing from that principle. As I stated in the judgment ‘to depart from the (fragmentation principle) would delay the criminal proceeding and make its completion open to interlocutory applications and appeals’.[2]
[2] Ibid [66].
I also decided that the plaintiffs, Mr Kuksal and Ms Xu, should be refused leave to deliver amended originating motions and join 23 defendants because the additional claims against the additional parties had no real prospects of success. I refused the plaintiffs’ application for declarations because they would have resulted in this Court taking over the hearing of the criminal charges pending in the Magistrates’ Court and bypassing the trial jurisdiction of that Court. Many of the declarations that the plaintiffs sought could only be made after the Court had heard evidence and made findings of fact. The Magistrates’ Court, or other trial court, had the responsibility to make findings of fact and this Court should not supplant their roles. I considered that the grant of leave to the plaintiffs to rely on the proposed amended originating motions (‘PAOM’) would have launched a form of court inquiry into the conspiracy that the plaintiffs alleged, and into unrelated allegations that they make under the guise of a judicial review proceeding or an application for declarations. Such a course would be contrary to the joinder rules in rr 9.02 and 9.04[3] because it would join claims that had no connection with each other. If the plaintiffs were permitted to rely on their PAOMs, this proceeding would become a ‘rolling’ judicial review proceeding or a ‘rolling’ claim for declaratory remedies. In addition, there was little factual evidence to support the plaintiffs’ claims made in their PAOMs and any such claims against the third defendant and its agents could have been raised in other proceedings commenced in this Court.
[3]Supreme Court (General Civil Procedure) Rules 2015 (Vic).
The plaintiffs made a later application to reopen the proceeding on 9 and 10 November.[4] I refused it taking into account the interests of justice and, in particular, the principle against the fragmentation of criminal proceedings. The reopening would have turned this proceeding into a rolling review of the Magistrates’ Court prosecutions. I took into account that Mr Kuksal could make all his relevant applications in the Magistrates’ Court hearings. I refused a later application to rely on recently discovered evidence for similar reasons. I explained why I dismissed that further reopening application in the following passages of my principal judgment:[5]
I do not consider that the interests of justice require the Court to commence the process that I have described. My reasons are the same as I have given above for refusing the reopening application of 30 October 2023. In particular, the reopening application, if successful, would fragment the criminal proceedings in the Magistrates’ Court. The previous reopening application led to a further two day hearing with the Court again having to reserve judgment to reprepare its judgment, further delaying the delivery of judgment to all the parties. Repeated applications to reopen the hearing after judgment has been reserved because of the disclosure of documents only emphasises that the plaintiffs are conducting this proceeding as if it were a rolling review proceeding, or ongoing inquiry, with the issues being frequently added to, by pieces of evidence coming into the possession of the parties. As I have explained above, the courts will not permit such a process to occur. It is contrary to the principle of finality of litigation and means that the Court and other parties can never know when the proceeding will end. Repeated applications to reopen proceedings and receive further evidence would be possible, all the time delaying the delivery of judgment while increasing the costs of parties. That is not a proper way for litigation to be conducted.
…
I repeat the fundamental principles in which I have based this judgment. This Court should not fragment or manage the Magistrates’ Court criminal proceedings, save in special or exceptional circumstances. This Court should not make findings in this proceeding about the plaintiffs’ allegations of criminal court conduct without the persons against whom the allegations are made receiving the rights and protections afforded by a criminal trial. The Court cannot make declarations unless they are based on facts admitted or proved. The plaintiffs can seek to rely on any relevant new evidence in the Magistrates’ Court.
[4]All dates mentioned in this judgment occurred in 2023, unless stated otherwise.
[5]Ibid [253], [255].
I note that I am not deciding the entire costs of this proceeding, because it has not yet been completed. I am only deciding the costs associated with the days upon which interlocutory applications were heard. They were 26 April, 1 and 23 June, 28 July, 1, 2, 4, 9, 10 August and 9 and 10 November 2023 (‘the hearing days’).
I take into account that the plaintiffs are self-represented litigants, although the first plaintiff, Mr Kuksal, has been a litigant in a number of proceedings in this Court.
As explained in the principal judgment, the plaintiffs were charged with dishonesty offences, including obtaining property by deception and theft of furniture which was to be transported interstate. The charges against the second plaintiff, Ms Xu, were withdrawn on 8 November 2023. On 20 November 2023, the informant filed six additional charges against Mr Kuksal. On 25 March 2024, the committal hearing recommenced, and the Court directed that the informant provide Mr Kuksal with further and better particulars of the charges. Particulars were only provided of the six new charges. On 9 April 2024, the Office of Public Prosecutions (‘OPP’) informed Mr Kuksal that they would withdraw the nine original charges for which no particulars had been provided. On 2 May 2024, when the committal hearing had only reached the cross-examination of the first witness, counsel for the OPP informed the Court that all charges against Mr Kuksal would be withdrawn. All charges were struck out.
Mr Kuksal also relied on the IBAC’s communication to him of 17 May 2024, the full terms and effect of which I have taken into account.
The withdrawal of the criminal charges against Mr Kuksal and Ms Xu does not mean that they are to be treated as victorious in this proceeding for the purposes of deciding the costs of these interlocutory applications. This proceeding has not ended. This judgment only concerns the appropriate orders for costs of the interlocutory applications made on the hearing days. If the plaintiffs wished to seek costs or disbursements associated with the prosecutions, they needed to make such applications to the Magistrates’ Court, in which the hearing of the criminal charges commenced. That Court has power to award costs in certain circumstances.[6] In any event, the plaintiffs’ claims in this proceeding extend beyond challenges to the charges brought against them. As Mr Kuksal stated:[7]
So we’re not seeking declarations simply about that particular proceeding, we’re seeking declarations about the cluster of claims that cannot be separated from each other.
…
Or should not be separated from each other anyway because it would lead to [a] multiplicity of proceedings. The fact that a proceeding will become complicated is not a proper reason for the proceeding to be split into several proceedings. Some matters are complicated, and the fact is that the court will need to make determinations about those matters anyway, even if the court strips down this proceeding to the bear…essential declarations that must be made.
[6]Latoudis v Casey (1990) 170 CLR 534.
[7]Transcript of Proceedings, Shivesh Kuksal v The State of Victoria (Supreme Court of Victoria, S ECI 2022 04808, Ginnane J, [10 August 2023]) (‘T’), 722-3.
After delivering my principal judgment, I directed the parties to make written submissions about the costs of, and incidental to, the hearing days. The first, third and fourth defendants did so. The plaintiffs did not within the time permitted. Instead, the plaintiffs made a reopening and recusal application in March 2024, which I dismissed on 17 May 2024.[8] The plaintiffs were granted an extension of time to file submissions on costs and ultimately did so with submissions dated 6 June 2024. The first and third defendants thereafter filed submissions in reply pursuant to leave granted, the last of which was received in July 2024. These events and applications have delayed the Court’s decision on the costs of the hearing days.
[8]Kuksal v State of Victoria (Reopening and Recusal applications) [2024] VSC 253.
I will next summarise the parties’ submissions on costs, commencing with the plaintiffs’, although they were filed after the defendants’.
The plaintiffs’ submissions
Mr Kuksal’s submissions included oral submissions and written submissions, which were filed on his and Ms Xu’s behalf. Mr Kuksal argued that the costs of the interlocutory applications decided by the principal judgment on 20 December should be costs in the proceeding to be decided at its conclusion. The Court’s principal judgment was interlocutory and based on the evidence then available. It did not finally decide the plaintiffs’ core allegations that the defendants had interfered in the judicial process and engaged in the malicious abuse of authority. The Court’s judgment did not exonerate the defendants.
The plaintiffs submitted that they did not cause the controversy which led to the proceeding and had no choice about the recourse available to them. They had emerged victorious, and the State should not be rewarded for its unconscionable deployment of unethical manoeuvres and casuistry. The plaintiffs had succeeded in invoking the Court’s supervisory jurisdiction and their victory was in the public interest and the costs incurred by the parties were not wasted.
The plaintiffs relied on three matters in particular. First, the prosecution’s abandonment of the charges against them. He also relied on communications from IBAC, which I have referred to and from Victoria Police. In abandoning the prosecutions, the State had conceded the untenability of the lawful excuse defence for its agents’ conduct and had admitted the veracity of the plaintiffs’ allegations and the tortious conduct of its agents in subjecting the plaintiffs to unlawful arrest, false imprisonment and malicious prosecution.
The plaintiffs’ submissions against the Board included its challenge to the validity of the plaintiffs’ subpoena which challenge a Magistrate had already been determined against it on 27 November 2023. The plaintiffs have since discovered considerable evidence of the Board’s collusion with Victoria Police.
The plaintiffs contended that the question of costs ought to be decided on the basis that this was a criminal proceeding, under the jurisdiction invested by Part 8.4 of the Criminal Procedure Act 2009 and therefore by reference to the ‘reasonableness of steps taken in relation to proceedings’. The Court in exercising that jurisdiction is not automatically required to apply the civil costs scale. The plaintiffs referred to the Federal Court decision in Jarrett v Seymour,[9] which recognised that civil courts will not interfere in the process and procedures of the criminal courts, except in exceptional circumstances. However, the necessary corollary was that:[10]
Insofar as [persons] may wish to seek the protection of the supervisory jurisdiction in a superior court, they can have recourse to the jurisdiction of the Supreme Court of Victoria and its right to exercise appropriate control over the proceedings in the criminal jurisdiction of Victoria and is free from the doubts which attend the exercise of that jurisdiction by this Court.
[9](1993) 46 FCR 521.
[10]Ibid, [112].
The plaintiffs wish to appeal and seek a protective costs order in the current proceeding.
Ms Xu’s written costs submissions
Ms Xu, the second plaintiff, separately submitted that the State should not be awarded costs or, alternatively, the decision on costs should be reserved until the conclusion of the proceeding. The State had unreasonably maintained the prosecutions, which were without merit. The Court would be acting prematurely to make a costs order when issues relevant to those orders are yet to be decided. Ms Xu opposed the reliance by various defendants on the costs affidavits that they had filed. I will note here that I have taken those affidavits into account because they are relevant to the consideration of costs, just as I have taken into account the plaintiffs’ submissions that were filed out of time.
Ms Xu referred to the withdrawal of the prosecution’s charges against her and those against Mr Kuksal. She contended that the charges were an abuse of the Magistrates’ Court process, particularly the additional charges laid against Mr Kuksal in November 2023.
Ms Xu submitted that before the Court determines costs, the State should respond to the plaintiffs’ submissions that the criminal charges were malicious, filed without proper basis and maintained as an abuse of process, that the search warrant was obtained by fraud and that the officers involved acted unlawfully before and during the raid on 6 January 2022. The State in applying for a stay of this proceeding in the November 2023 hearing, and in its reliance on the fragmentation doctrine, misled the Court because the State and the OPP knew that the criminal charges had no real prospect of success.
Ms Xu contended that the Board’s costs should also be reserved until the plaintiffs’ issues concerning the State’s conduct were addressed. The Court had not determined the plaintiffs’ allegations about the Board’s conduct and stated that they should be first raised in the Magistrates’ Court. The Board had not defended her allegations that the submissions made by the Board’s counsel were misleading and the Court had not addressed the issue.
Ms Xu also argued that she should not be ordered to pay all the Board’s costs. The December 2023 judgment contained decisions for and against the plaintiffs. The Court reserved the costs of the Board’s failed summons that the plaintiffs successfully defended. Likewise the Court should reserve the costs sought by the State and the Board.
Ms Xu also opposed IBAC’s costs application. IBAC had unsuccessfully sought summary dismissal of the plaintiffs’ proceeding against it and also had been unsuccessful in opposing the plaintiffs’ application to amend its originating motion. She argued that IBAC’s application for costs should be reserved for determination until after the State explained the withdrawal of the criminal charges. At that point, the question of whether the State or prosecution acted improperly in commencing and maintaining the charges could be considered. Ms Xu also argued that if IBAC is to be awarded any costs, the State should pay them.
The State of Victoria’s submissions on costs
The State of Victoria, (‘the State’), the first defendant, contended that the plaintiffs should pay its costs of the originating motion and summons, including their applications to reopen their cases, on an indemnity basis. Alternatively, it sought an order that the plaintiffs pay its costs on a standard basis up to and including 2 August, and on an indemnity basis thereafter.
The State submitted that the plaintiffs’ conduct in relation to their originating motion, their further proposed originating motions and their applications for leave to reopen their case and to rely upon further evidence, was in breach of their overarching obligations under the Civil Procedure Act 2010, which required the parties to narrow the issues in dispute and ensure costs incurred were reasonably proportionate to those issues. Those breaches provided a separate basis for an award of indemnity costs.
The State argued that the first plaintiff’s conduct caused the July and August hearings, which had been listed as a one-day interlocutory hearing, to extend for an additional seven days. The time taken by the first plaintiff in oral argument and submissions far exceeded the time taken by the other parties. The plaintiffs provided new and additional material on a rolling basis, including more than 7,700 pages of material. The plaintiffs’ material included a 9 page affidavit with at least 5,152 pages of exhibits. The plaintiffs filed versions of proposed amended originating motions, many of which were circulated without prior leave of the Court. This conduct caused the hearing time of the interlocutory applications to far exceed what was reasonably required.
The State contended that the plaintiffs’ applications for reopening which were heard on 9 and 10 November involved repetition of their previous submissions. Their new arguments were misconceived and contravened their obligations to narrow the issues in dispute, minimise delay and not make claims without a proper basis. Even after the reopening applications were completed, the plaintiffs sought to add additional material to their cases. Thus on 14 December, after the Court had notified the parties that judgment was to be delivered the next day, the plaintiffs circulating a four-page document titled ‘Summary of Recently Discovered Evidence’. This caused the delivery of judgment to be postponed, although I rejected the plaintiffs’ application to rely on that ‘recently discovered evidence’.[11] On Friday 15 December and Saturday 16 December, the plaintiffs sought to rely on additional documents. On Monday 19 December, Mr Kuksal sent a 13 page document to Chambers titled ‘Summary of Recently Discovered Evidence’. The Court had again refused leave to rely on these documents and delivered judgment the next day.[12]
[11]Principal Judgment [252]-[257] (‘Reasons’).
[12]Ibid [266]-[267].
The Victorian Legal Services Board
The plaintiffs sued the Victorian Legal Services Board (‘the Board’), the third defendant, in respect of its alleged actions, including those affecting People Shop Pty Ltd trading as Erudite Legal, a legal practice. The plaintiffs were unsuccessful in their interlocutory applications against the Board, including for discovery and disclosure of documents. The Board, which emphasised that it was publicly funded, sought an order that the plaintiffs pay it the fixed costs sum of $39,884. Alternatively, the Board sought its costs on an indemnity basis of: the plaintiffs’ application for leave to amend their originating motion and to join additional defendants and the plaintiffs’ reopening application and their applications to rely on newly discovered evidence. The Board submitted that its costs of the interlocutory hearings on 2 and 23 June 2023 hearings should be reserved.
In support of its costs application, the Board relied on the fact that the plaintiffs made serious allegations against it, which the Court found were supported by little factual evidence and which contained assertions that might not be admissible.[13] The allegations included that the Board had sought to mislead the Court, had engaged in improper conduct, secretly conspired against the plaintiffs and sought to harm them and had breached its overarching obligations under the Civil Procedure Act 2010. The plaintiffs sought to add claims against the Board and other defendants in real time as the Magistrates’ Court prosecutions continued and, as a result, the proceeding risked becoming a ‘rolling’ judicial review proceeding. The plaintiffs’ applications that the judge recuse himself were made in a frivolous and haphazard manner.
[13]Principal Judgment [77].
The Board also argued that the interlocutory applications took eight days and the plaintiffs’ conduct substantially contributed to that unnecessarily lengthy hearing. The plaintiffs often arrived late at court and continued to cavil with the Court’s directions about the length of the documents that they wanted to file. Their oral submissions occupied a substantial majority of the hearing time, including at least 10.5 hours in the first five days. They filed or circulated voluminous submissions and materials which did not comply with the Court’s orders as to page limits and sometimes did not provide the exhibits to the affidavits on which they relied.
The Board disputed the plaintiffs’ submissions that it would inappropriately profit if the Court granted an award of costs in its favour as it was publicly funded and had incurred costs by being represented at the hearings and filing affidavits and submissions.
The Board submitted that the Court should not postpone its decision on costs as no appeal had been brought against the judgment of 20 December and the plaintiffs had not applied for protective costs orders. The circumstances in which the Court reserved costs of the Board’s unsuccessful summons of 1 June were distinctly different from the present case. The Court ought to determine costs under its civil procedure and in accordance with the provisions of the Civil Procedure Act 2010 and reject the plaintiffs’ submission that this was a criminal proceeding.
IBAC’s submissions
The first plaintiff had requested IBAC to investigate his complaint against Victoria Police, but it decided not to do so. I dismissed IBAC’s summons seeking summary dismissal of the plaintiffs’ claims against it.
IBAC sought orders that the plaintiffs pay 80 per cent of its disbursements of the hearing days, which amounted to $21,738.41. IBAC filed an affidavit by its solicitor which set out the details of that amount.
IBAC relied on the plaintiffs’ lack of success in their interlocutory applications. IBAC noted that the plaintiffs only introduced the claims on which they persuaded the Court to dismiss its summary judgment application in August. On 2 August, they introduced the claim that IBAC had not complied with the Public InterestDisclosure Act 2012 (‘PID Act’) and on 4 August, the claim that IBAC had breached the plaintiffs’ human rights conferred by the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) by failing to determine whether the police had engaged in either ‘corrupt conduct’ under the Independent Broad-based Anti-corruption Commission Act 2011 or ‘improper conduct’ under the PID Act.
IBAC made similar submissions to the Board concerning the delays caused by the plaintiffs’ conduct. The Court was required to spend considerable time addressing the affidavits and exhibits which the plaintiffs sought to rely on which did not comply with Court orders or directions as to page limits. Those affidavits and exhibits were emailed shortly before, or during, the day’s hearing, were often missing documents, and were often presented in a manner that made it difficult for the Court and defendants to access them, causing time to be wasted. The Court had warned Mr Kuksal of the potential costs consequences of his conduct of the proceeding.[14]
[14]See T 259–260, 462 and 466.
As mentioned, IBAC claimed its costs in the fixed sum of $21,738.41, being 80 per cent of the aggregate of counsel’s fees of $23,495, which were significantly lower than scale, and transcription fees of $3,677.81. IBAC proposed a discount of 20 per cent to its claim for disbursements because of the plaintiffs’ success in opposing its application for summary judgment. The plaintiffs have not paid IBAC the amount of $7,295.00 the Court ordered them to pay on 20 December. So IBAC argued that any expenses that the plaintiffs might be awarded should be set-off against the costs that they owe to IBAC and should be discounted due to the plaintiffs’ conducted at the hearings. Alternatively, IBAC should not be ordered to pay any expenses to the plaintiffs until they have paid it that sum of $7,295.00. However, the plaintiffs have made no claim for ‘out of pocket expenses’. IBAC also submitted that, at most, the plaintiffs should only be awarded their out-of-pocket expenses from the date that they raised the PID Act and Charter claims, which, at the earliest, was on 2 August, the third day of the interlocutory hearings.
Analysis of costs submissions
As mentioned, I am not deciding the entire costs of this proceeding and am not deciding which party or parties will ultimately be successful. I am deciding the costs of the interlocutory applications made on the specified hearing days.
The Court’s powers and discretion to award costs are contained in s 24 of the Supreme Court Act 1986. As I stated in the principal judgment, this proceeding was commenced under the Court’s civil rules of procedure and was heard in the Court’s civil jurisdiction.[15] So, I will decide the present costs application on the basis that the interlocutory applications were civil applications.
[15]Principal judgment [209]–[212].
The Court may reserve the costs of interlocutory applications when the ultimate outcome of the proceeding may influence the decision about the award of those costs. Rule 63.20[16] provides that if when an interlocutory application is made, the Court makes no order, or the order is silent as to costs, then the costs are the parties’ costs in the proceeding, unless the Court otherwise orders. However, the Court can, and often does, award costs of interlocutory applications at the time they are determined when it considers it appropriate to do so.
[16]Supreme Court (General Civil Procedure) Rules 2015.
I consider that, with a few exceptions, the Court should award costs of the hearings days. The matters raised by the applications extended considerably beyond those usually associated with judicial review proceedings or applications for declarations. The plaintiffs’ case was not limited to a challenge to the search warrant executed in January 2022. Their applications made in this proceeding, if granted, would have had this Court conduct a rolling review of the, then, ongoing criminal prosecutions in the Magistrates’ Court. The applications would have had the effect of halting the criminal prosecutions until this Court decided questions that were for the Magistrates’ Court to decide. The plaintiffs applied to amend their originating motion and to join additional defendants. The additional claims that the plaintiffs sought to add in their PAOM applications were not properly expressed and made wide and unsubstantiated allegations without identifying any action or decision which could be subject of judicial review or declaratory relief. They sought to join as parties many persons not directly associated with the prosecutions, including judicial officers, prosecutors and police. The plaintiffs’ allegations of conspiracy and fraud could only be decided when properly particularised allegations of fact were made and the persons adversely affected by the allegations given an opportunity to respond to them. The principle against the fragmentation of criminal prosecutions prevented this Court permitting such a process to occur while the prosecutions in the Magistrates’ Court continued.
The plaintiffs sought to rely on thousands of pages of affidavits, exhibits and submissions, much of which had no place in a judicial review proceeding or an application for declaratory relief. The amendments and joinder of persons sought would have turned this proceeding into an inquiry into a series of unrelated allegations.
The plaintiffs sought to reopen the hearings in this Court after judgment was reserved and to rely on further information gained during the Magistrates’ Court prosecutions. They applied for the judge to disqualify himself for no valid reason. They sought to reopen the proceeding again while the Court was considering the question of costs. All these applications took time and costs to hear and decide.
The plaintiffs did not succeed on any of their interlocutory applications, save in part in respect of IBAC.
I do not accept Ms Xu’s argument that before the Court made any decision on costs, the State and the prosecution were obliged to explain why the charges against the plaintiffs were withdrawn or had to establish that the charges had a proper basis in the first place. That approach would risk turning this proceeding into an inquiry into the conduct of the prosecutions in the Magistrates’ Court. That is not a task for this Court, least of all when deciding the present costs applications.
Costs claims or issues associated with the withdrawal of the criminal charges were matters for the Magistrates’ Court which dealt with the charges. The fact that the charges were withdrawn does not provide the plaintiffs with a justification for commencing this proceeding or making the lengthy interlocutory applications that they did. The application of the principle against the fragmentation of criminal proceedings raised separate issues from whether the criminal charges had any validity. That latter question was, at least in the first instance, a matter for the Magistrates’ Court. This Court cannot determine the appropriate costs orders for the interlocutory applications decided on 20 December by reference to whether the charges had any merit. This Court was not the court hearing those charges. Rather, this Court’s current task is to consider the appropriate costs orders for the interlocutory applications made in this proceeding while the prosecutions in the Magistrates’ Court were ongoing. The merit or lack of merit in the criminal charges has no connection to the question of whether the plaintiffs should be ordered to pay the costs of unsuccessful interlocutory application made in this Court.
I turn then to specific costs questions.
The State’s costs
In granting the State a temporary stay order, I did not decide that all of the plaintiffs’ claims could not be heard in this Court, but that their proceeding should be stayed until after the prosecutions were finally determined by the Magistrates’ Court, including any appeal or judicial review application from such determinations.
I consider that the costs of the State’s stay summons should be reserved. It was an interlocutory application leading to the grant of a temporary stay. The orders that I made, including granting the temporary stay, were not final orders and thus I did not decide whether or not the plaintiffs’ proceeding had any merit at all. I only decided the interlocutory applications argued on the hearing days. Submissions about the stay application were spread across a number of days and occupied approximately half a day in total. Written submissions were also filed. I should attempt to make costs orders that can be practically applied by the Costs Court if it is required to assess costs. That objective is more likely to be achieved if I allocate half a day for the stay application to a particular calendar day, rather than allocating portions of a number of days to it. Accordingly, I will allocate half a calendar day as representing the time taken for the stay application, to the first of the hearing days, 28 July, and reserve those costs.[17] I will also reserve the remainder of the costs of 28 July and of 1 August, because most of the submissions on those days concerned IBAC’s claims for costs of its summons of 1 June, and in support of its summary judgment application. Later in this judgment I award IBAC fixed costs. However, by reserving costs of half of 28 July and 1 August, I preserve any other parties’ rights to claim costs of those days at the end of the proceeding.
[17]See the State of Victoria submissions on 28 July 2023 T 100-109 and Mr Kuksal’s submissions on 1 August 2023 T 231-247.
However, I consider that a substantial part of the State’s costs associated with the plaintiffs’ application for leave to deliver the PAOMs of 28 July and 4 August and the application to join 23 additional parties should be borne by the plaintiffs. As I have already explained in this judgment, as I did in my principal judgment, to have allowed the plaintiffs’ PAOMs and the joinder of the additional defendants would have impermissibly joined claims that had no connection with each other and infringe the principle against the fragmentation of criminal proceedings. It would also have permitted the plaintiffs’ to apply for declarations that could not be granted, would have bypassed the jurisdiction of the Magistrates’ Court and turned this proceeding into a rolling judicial proceeding or a rolling claim for declaratory orders.[18] The submissions about the PAOM and joinder occupied substantial parts of 2 August, 4 August, and much of 9 and 10 August, approximately 4 days.
[18]Reasons [61]-[77].
The plaintiffs’ conduct, and particularly that of the first plaintiff, in respect of their PAOMs was contrary to the objectives and obligations of the Civil Procedure Act. In engaging in that conduct, the plaintiffs, especially the first plaintiff, breached the obligations imposed by ss 18, 23, 24 and 25 of the Civil Procedure Act to ensure that their claims had a proper basis, to narrow the issues in dispute, to ensure that costs were reasonable and proportionate and to minimise delay. The first plaintiff, in particular, took an unreasonable length of time to complete submissions and provided voluminous material, much of which had little relevance to the issues that the Court had to decide. This conduct also prevented the Court hearing other cases on some of the hearing days.
That conduct justifies an order for indemnity costs for part of the hearings. Indemnity costs can be awarded when a party’s conduct has unreasonably extended the length of a proceeding.[19] Indemnity costs can also be awarded when a party has unreasonably engaged in conduct which caused loss of Court time and added to the length and costs of the proceeding.[20]
[19]Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 [7(iii)].
[20]Ibid and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 [538]-[551].
I consider that the first plaintiff should pay the State’s costs of one hearing day relating to the PAOMs and joinder applications on a standard costs basis, which I allocate to 2 August, as an amendment application would usually lead to the applicant at least being ordered to pay costs on a standard basis, or to pay costs thrown away by the amendment, if the application was argued without excessive length. In this case the amendment and joinder applications were argued at excessive length. I also consider that the first plaintiff should pay the State’s costs of the PAOMs and joinder applications of three days on an indemnity basis, which I allocate to 4, 9 and 10 August. Those days were mainly occupied with submissions about the PAOMs and joinder applications. Those applications should have been completed in one day. The fact that they were not and occupied another three days was largely due to the time that the first plaintiff took to present his applications and the voluminous material that he provided which was disproportionate and unreasonable. He sought to rely on thousands of pages of documents, in disregard of Court orders as to page limits, and made submissions occupying more than half the hearing days. That conduct justifies the award of indemnity costs.
I consider that I should make similar orders for the costs of the Board as I will make for the State’s costs. The plaintiffs sued the Board and successfully resisted its attempt to be removed as a party.[21] However, thereafter, the plaintiffs served documents relating to the PAOM and the joinder of persons associated with the Board. The PAOM sought to join Board staff or persons engaged by the Board. The Board was therefore entitled to be represented throughout the hearing. The plaintiffs’ initial claims against the Board concerned a Magistrate’s orders setting aside Mr Kuksal’s summons issued to the Board parties and refusing to release Mr Kuksal from non-disclosure obligations concerning the affidavit that obtained the search warrant. The plaintiffs’ alleged that a criminal conspiracy existed between Victoria Police officers, the Nine Network Australia Pty Ltd and the Board.
[21]Kuksal v State of Victoria [2023] VSC 438.
The plaintiffs’ PAOM contained an extensive section directed at ‘the LSB’s Parties’ Improper Conduct’ seeking declarations that the parties, the individuals, the External Manager and the VLSB solicitor, engaged in professional misconduct within the meaning of the Legal Profession Uniform Law Application Act 2014 and perverted or attempted to pervert the course of justice and alleging that the External Manager breached sections of the Corporations Act 2001.
I have set above, when dealing with the State’s costs, the lack of merit in the PAOMs and joinder applications and the time that they occupied, approximately three to four days, and the voluminous documentation that the plaintiffs relied on which demonstrated that their conduct was not consistent with the overarching obligations in the Civil Procedure Act. The claims against the Board in the PAOMs equally lacked merit, including in the manner in which they were framed, for similar reasons to those I have stated when dealing with the claims against the State.
The first plaintiff must pay the Board’s costs on a standard basis of, and incidental to, the hearing on 2 August and on an indemnity basis of and incidental to the hearing days 4, 9 and 10 August.
The second plaintiff’s, Ms Xu’s, submissions about the PAOMs and joinder applications occupied considerably less time than the first plaintiff’s.[22] But she was still party to those applications, and they had all the flaws that I have mentioned. Accordingly, she is ordered to pay two days of the State’s and the Board’s costs on a standard basis associated with the unsuccessful amendment and joinder applications, which I will allocate to the hearing days 2 and 4 August.
[22]See eg T 582-615.
Costs of plaintiffs’ reopening applications of 9 and 10 November 2023
The costs of the defendants’ participation in the plaintiffs’ reopening applications on 9 and 10 November, are entirely attributable to the plaintiffs’ actions. For the reasons I gave in my principal judgment,[23] I considered that the interests of justice, the principle against the fragmentation of criminal proceedings and the terms of the declarations that the plaintiffs sought required the dismissal of the reopening application, save for the admission of documents concerning the withdrawal of charges against the second plaintiff and the prosecution note that further charges might be laid against the first plaintiff. The reopening application had no merit and put the defendants to considerable unnecessary costs. The plaintiffs’ unwillingness to accept the limits of judicial review and declaratory order applications meant that this proceeding became an attempt to seek a rolling review of the Magistrates’ Court hearings. This feature was demonstrated by the plaintiffs’ reopening applications and their application to provide further evidence after judgment had been reserved. The plaintiffs’ reopening application breached the overarching obligations contained in ss 18, 23, 24 and 25 of the Civil Procedure Act 2010. In the reopening application, the plaintiffs adopted the same approach as they had in the July and August hearings. They sought to have this Court intervene in the Magistrate Court’s hearings, when it was inappropriate for it to do so. The defendants should not have been put to the time and expense of the further two days of the reopening hearing. As mentioned, conduct which causes loss of time to the Court and other parties can lead to an order for indemnity costs against the party responsible. Such orders should be made in respect of the reopening application.
[23]Principal judgment [239]-[247].
Mr Kuksal must pay the State’s and the Board’s costs of and incidental to the hearing days of 9 and 10 November on an indemnity basis. Ms Xu, whose submissions again took less time than Mr Kuksal’s,[24] but who joined in the reopening applications should pay the costs of the State and the Board of 9 November on a standard basis and of 10 November on an indemnity basis.
[24]See T 1-27;116-125 (10 November 2023).
As the reopening applications in this proceeding and in the Mioch proceeding,[25] were heard together on 9 and 10 November, I make it clear that my orders that the first plaintiff pay the State’s and the Board’s costs on an indemnity basis of 9 and 10 November and that the second plaintiff pay those costs on standard basis on 9 November and on an indemnity basis on 10 November relate only to costs of and incidental to those days in connection with this proceeding.
[25]Kuksal v Mioch S ECI 2023 00183.
The Board’s application for fixed costs
I do not award the Board the fixed costs that they sought because they appear to claim all or most of their costs on an indemnity basis for periods between July to November 2023 and for disbursements. I have not awarded the Board indemnity costs for all those periods, but only that the first plaintiff and the second plaintiff must pay their costs on that basis for particular days. I have ordered standard costs to be paid for some hearing days and ordered costs of some days to be reserved. Therefore, the costs that the Board may claim as a result of my orders must be assessed by the Costs Court in default of agreement.
IBAC’s costs
I granted the plaintiffs leave to file a PAOM with amendments limited to additional claims against IBAC, which were only raised on 2 and 4 August. On the basis of those amendments, the plaintiffs successfully opposed IBAC’s summary judgment application. The plaintiffs submitted that IBAC’s costs should be reserved or be made costs in the proceeding just as I had reserved the costs of the Board’s unsuccessful application to be removed as a party.
Much of the submissions on 28 July and on parts of 1 and 4 August were directed at the costs of IBAC’s summons of 1 June 2023. On 20 December 2023 I ordered that the plaintiffs pay IBAC the amount of $7,295.00, which it claimed for disbursements in respects of its summons of 1 June 2023. IBAC is entitled to costs associated with the argument during the hearing days concerning the costs of its summons of 1 June 2023.
The plaintiffs’ submissions about IBAC’s summary judgment application took more than half a day prior to the plaintiffs’ provision of its proposed amendments to its originating motion which were provided on 2 and 4 August. Both plaintiffs made submissions in connection with their claims against IBAC. After the plaintiffs’ proposed amended claims were provided to the parties, submissions about them occurred on 4, 9 and 10 August. The plaintiffs were ultimately successful in opposing IBAC’s application for summary judgment, but only due to the amendments allowed to the originating motion which were sought late in the hearings.
IBAC also made submissions opposing the reopening application heard on 9 and 10 November in respect of which in respect of which hearing days I have awarded the State and the Board indemnity costs.
In all the circumstances, I consider that I should accept IBAC’s submissions and order the plaintiffs to pay it the sum of $21,738.41, which is 80 per cent of its disbursements for counsel’s fees and transcript. This amount appears less than IBAC might recover from an assessment in the Costs Court as it only covers disbursements. This order will reflect IBAC’s success in obtaining a costs order in respect of its summons of 1 June. It will also reflect the arguments about summary judgment which occurred prior to the plaintiffs’ amendments to their originating motions sought on 2 and 4 August. Those proposed amendments, which were later allowed, led to the defendants’ submissions being modified and refashioned and must have caused them additional costs.
Conclusion
Discussion occurred about any entitlement of the plaintiffs as self-represented litigants to claim ‘out of pocket expenses’. Although I have reserved some costs, I have not made any order that would entitle the plaintiffs to such expenses, even if they could be established. Therefore, there is no reason to refer a question of ‘out of pocket’ expenses to the Costs Court for assessment.
I see no reason why the costs of 1 and 23 June 2023 should not remain reserved. Very little attention was given to those days in submissions.
Postscript
The parties were notified yesterday that I would be delivering by email this cost judgment at 3:15pm today, 1 November 2024. At 1:39pm today, 1 November 2024, the second plaintiff emailed my chambers in the following terms:
Dear Associate,
We apologise for the late notice but owing to recent developments involving revelation of further misconduct by Victoria Police, the Victorian Legal Services Board and the IBAC, the Plaintiffs request that Justice Ginnane delay the delivery of the judgment until after His Honour has had an opportunity to hear consider the matters we raise.
We could not write to His Honour earlier owing to other court commitments.
We will be able to provide His Honour a summary of the matters (covering approx 10 pages) by 10:00 am on Wednesday, 6 November 2024.
We note that 5 November 2024 is a public holiday.
Lulu Xu
I refuse Mr Kuksal and Ms Xu’s application that I delay the delivery of this judgment. The plaintiffs have had ample time over many months to make any applications that they considered appropriate. This costs judgment has been delayed for many months in circumstances where the plaintiffs’ delayed in providing costs submissions and made reopening and recusal application which I dismissed on 17 May 2024. The costs judgment should be delivered. The plaintiffs’ email of this afternoon referring to ‘further misconduct’ by various entities suggests again that the plaintiffs misunderstand the purposes of this proceeding and, in particular, of this costs judgment. That purpose is not to conduct an inquiry into allegations of ‘misconduct’, but, in the case of this costs judgment, to decide the costs of interlocutory applications heard and determined last year.
Orders
Mr Kuksal must pay the first and third defendants’ costs:
(a) of and incidental to the hearing day on 2 August 2023 on a standard basis to be assessed by the Costs Court in default of agreement; and
(b) of and incidental to the hearing days on 4, 9 and 10 August 2023 and 9 and 10 November 2023 on an indemnity basis to be assessed by the Costs Court in default of agreement.
Ms Xu must pay the first and third defendants’ costs:
(a) of and incidental to the hearing days of 2 and 4 August and 9 November 2023 on a standard basis to be assessed by the Costs Court in default of agreement; and
(b) of and incidental to the hearing day of 10 November 2023 on an indemnity basis to be assessed by the Costs Court in default of agreement.
Mr Kuksal and Ms Xu must pay IBAC costs of $21,738.41.
The costs of 28 July 2023 and 1 August 2023 are reserved.
The costs of 1 and 23 June 2023 remain reserved.
The above costs orders do not entitle any defendant to recover from Ms Xu costs that it has already recovered from Mr Kuksal or to recover from Mr Kuksal costs that it has already recovered from Ms Xu.
The plaintiffs’ application made by email of 1 November 2024 at 1:39pm for the delivery of this judgment to be delayed is refused.
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SCHEDULE OF PARTIES
BETWEEN: | |
| SHIVESH KUKSAL | 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 |
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5
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