Kuksal v State of Victoria (Reopening and Recusal applications)
[2024] VSC 253
•17 May 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 and LULU XU | Plaintiffs |
| v | |
| STATE OF VICTORIA (and others according to the Schedule) | Defendants |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 17 May 2024 |
CASE MAY BE CITED AS: | Kuksal v State of Victoria (Reopening and Recusal applications) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 253 |
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JUDICIAL REVIEW – Declarations – Practice and procedure – Application to reopen proceeding after judgment delivered and orders made – Application for recusal of judge – Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | On the papers | |
| For the Defendants |
HIS HONOUR:
On 20 December 2023 I delivered judgment in this proceeding.[1] I stayed the proceeding against the first, second and third defendants until the determination of the charges against the first plaintiff in the Magistrates’ Court of Victoria proceeding no. N10047659 and the determination of any appeal from, or judicial review of (including applications for declarations), the determination of those charges.
[1]Kuksal v State of Victoria [2023] VSC 625 (‘Judgment’).
I also ordered that the plaintiffs’ application dated 30 October 2023 to reopen the hearing after judgment was reserved be dismissed, save for the admission into evidence of documents concerning the striking out of the charges brought against the second plaintiff. I also dismissed the plaintiffs’ application made by emails on 11 and 14 December 2023 that the Court have regard to ‘Recently Discovered Evidence’ and made a similar order in respect of the plaintiffs’ applications made by emails on 15, 16 and 19 December 2023. I gave the plaintiffs leave to file and serve an amended originating motion concerning their claims against the fourth defendant, the Independent Broad-based Anti-corruption Commission (‘IBAC’).
I adjourned the proceeding against IBAC to a directions hearing.
I made directions for written submissions as to costs. The first, third and fourth defendants complied with those directions by filing submissions by 20 January 2024. The plaintiffs were to file their submissions by 9 February 2024 but have not done so. Instead the plaintiffs have foreshadowed seeking to reopen the proceeding and make application that I recuse myself.
Following the plaintiffs’ request, on 18 March 2024, I gave them leave to file and serve a memorandum of no more than 8 pages summarising any application that they would make, if the Court granted them leave to do so:
(a) in respect of the judgment and orders of 20 December 2023;
(b) that I recuse myself from further involvement with this proceeding.
I granted the plaintiffs extensions of time in which to file any such memorandum.
On 23 April 2024, the plaintiffs filed a 22 page document summarising their applications, including reopening the proceeding. They stated that the application ‘in the case of essential factual matters’ was ‘limited to a basic identification of the evidence and assertions in relation to the manner in which the Plaintiffs may benefit from inclusion’ in the proceeding. The plaintiffs described the essential function of the document as:
[p]roviding the Court with an overview of the essential matters [Essential Matters] that the Plaintiffs intend to rely on if the Court hears their proposed applications [Proposed Applications], in order to assist the Court in determining whether the Proposed Applications have a reasonable prospect of success.[2]
[2]Submissions of the Plaintiffs dated 24 April 2024, [13].
The plaintiffs described their expectation as being that ‘at this stage, the extent of the Court’s evaluation of’:
The essential Legal Matters will be limited to the assessment of the existence of arguable grounds; and
The Essential Factual Matters will be limited to a determination regarding if whether the Plaintiffs’ representations in relation to the fresh evidence are accepted at face value, whether they may conceivably assist in establishing the facts asserted by them; and if the Plaintiffs had been successful in those facts prior to the delivery of judgment, whether that could have conceivably achieved a more favourable outcome for them.[3]
[3]Ibid, [17].
The plaintiffs also stated:
Furthermore, as the Plaintiffs are simply endeavouring to meet a threshold issue, this Document does not exhaustively set out all the instances of alleged misapprehension of law by the Court and every item of fresh evidence discovered that could have conceivably affected the outcome in favour of the Plaintiffs under the Essential Legal Matters and Essential Factual Matters Respectively.
The Plaintiffs have at this stage restricted their attention to those issues that offer the strongest possibility of a successful outcome for their Proposed Applications.
The Plaintiffs emphasise that at this stage the Court has restricted them from making proper submissions in respect of the Essential Legal Matters and from adducing the actual evidence giving rise to the Essential Factual Matters, let alone properly describing the manner in which it will serve the purpose asserted by the Plaintiffs.[4]
[4]Submissions of the Plaintiffs dated 24 April 2024, [18]-[20].
The plaintiffs contended that it was imperative in a complex matter ‘such as this’, where the essential allegations raised concerned the abuse of statutory power in furtherance of an unlawful purpose conspiracy, which involved a considerable number of public institutions and individuals, which was effected over a lengthy period of time, that the Court appreciate that it was inconceivable that the bulk of the evidence might be ‘concise, simple and direct’.[5]
[5]Ibid, [21].
In their memorandum of 23 April 2024, the plaintiffs seek to reopen the proceeding and determine ‘the validity of the Olney proceeding’, that is the Magistrates’ Court proceeding no. N10047659, in respect of the first plaintiff. They seek the recusal of the judge from further conduct of the proceedings and they seek to apply for protective costs orders in this proceeding. They also state that they intend to issue subpoenas and make applications in relation to the defendants’ alleged breaches of overarching obligations in the conduct of the proceeding. The plaintiffs set out errors that they contend were made in the judgment of 20 December 2023.
The plaintiffs contend that they have discovered fresh evidence which, when combined with previously available documents, establishes the following matters: That various police officers submitted fraudulent evidence to the Magistrates’ Court to obtain the search warrant that was executed at the first plaintiff’s residence on 6 January 2022; That police officers unlawfully appropriated the plaintiffs’ property, supressed exculpatory evidence, and improperly sought to procure convictions of the plaintiffs; That a government solicitor assisted the police in their efforts to pervert the course of justice to achieve the objectives mentioned. They alleged that police officers colluded in the procurement of a fraudulent witness statement and ‘improperly financially incentivised’ a person to provide a fraudulent witness statement against them and colluded with that person in suppressing evidence of that person’s breach of an interim intervention order that the first plaintiff had obtained against her until the statute of limitations applicable to charges against her had expired. The plaintiffs also allege that police officers refused to register their complaints regarding that person’s perjury in producing that witness statement. They allege that the prosecution in the Magistrates’ Court proceeding was aware, at least as early as 8 November 2023, that the charge sheets filed were nullities at law. They allege that the Magistrate committed equitable fraud to prevent the trial judge becoming aware that the Magistrate had already decided the issue of the validity of the charge-sheet. The plaintiffs also make allegations against the fourth defendant, IBAC. [6]
[6]Submissions of the Plaintiffs dated 24 April 2024, [28].
Consideration of plaintiffs’ applications
In my judgment of 20 December 2023 I considered and dismissed the plaintiffs’ applications to reopen this case after judgment was reserved.[7] I did not accept that this proceeding should be treated as if it was subject to the rules governing criminal proceedings.
[7]Judgment [200]–[268].
I reach the same conclusion in respect of this application to reopen the proceeding. The new evidence and material that the plaintiffs contend could be provided to the Court does not suggest that evidence existed as at 20 December 2023 of any special circumstances justifying this Court interfering with, and thereby fragmenting, the Magistrates’ Court’s hearing of the charges.
This Court does not take over the hearing of charges brought in the Magistrates’ Court. The attempt to have this Court take the plaintiffs’ ‘fresh evidence’ is another attempt to have the Court undertake an impermissible rolling judicial review. I do not consider that the plaintiffs’ memorandum contains any basis for permitting them to file further material in support of an application to reopen the proceeding.
I refuse the plaintiffs’ application to apply to reopen the proceeding.
I also dismiss the plaintiffs’ application to apply for orders that I recuse myself from further involvement in the proceeding. The grounds for that application appear to be a disagreement with the conclusions I reached in the judgment of 20 December 2023, as well as the plaintiffs’ opinion that it contained legal or jurisdictional errors. If the plaintiffs had wished to pursue those arguments they had the usual appeal rights, or rights to seek leave to appeal. Their disagreements with my conclusions provide no basis for permitting them to pursue a recusal application or to file further material in support of such an application.
I do not consider that the defendants should be called on to respond to the plaintiffs’ proposed applications, as no arguable basis for them has been established. The Civil Procedure Act 2010 requires the Court to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. That overarching purpose would not be achieved by the Court permitting repeated applications to reopen proceedings or judgments, with the resulting necessity for opposing parties to participate and repeat previous submissions, when the basis of those applications is contrary to the fundamental principle that this Court will not permit the fragmentation of prosecutions in the Magistrates’ Court, save in special or exceptional circumstances. The Court has power to require litigants, who are seeking to reopen proceedings or hearings or seeking recusal orders, to explain, in the first instance, how they have an arguable case for such orders, before it calls on the opposing parties to spend the time and money to respond.[8]
[8]Civil Procedure Act 2010 (Vic) ss 47, 49.
By email of 3 May 2024, Mr Kuksal informed the Court that on the previous day the prosecution had withdrawn all the charges that it had brought against him. He attached orders of the Court striking out the charges and noting that they were withdrawn. He foreshadowed an application to this Court for orders for the preservation and production of documents and other injunctive relief. However, the withdrawal of the charges does not assist the plaintiffs’ application to reopen the judgment as the charges were still in existence when I delivered judgment on 20 December 2023. The plaintiffs’ applications concern that judgment.
Yesterday, after Mr Kuksal had been notified that the judgment was to be delivered, he sent two emails to the Court without leave. The first email appeared to have two purposes. First, to ensure that the Court had received the email of 3 May 2024. Secondly, to state that since the provision of the documents to the Court on 23 April 2024, the plaintiffs had obtained further evidence of IBAC’s misrepresentations to the Court on which he sought to rely. He foreshadowed filing a summons ‘in relation to the urgent applications concerning the attached email on Monday, 20 May 2024’. That is a matter which it is open to him to pursue when his proceeding against IBAC is again before the Court.
This morning, Mr Kuksal emailed the Court stating that earlier today, IBAC had communicated with the plaintiffs indicating that it had decided to classify their complaint in relation to the Olney proceeding as a ‘public interest complaint’ and to investigate the complaint. That information does not affect the appropriate outcome of the present applications that concern the judgment of 20 December 2023.
In the second email sent yesterday Mr Kuksal asserted ‘that the manner in which both proceedings were abandoned, gives rise to an inference of a pattern of conduct on the State’s part’. He mentioned the fact that the one solicitor at VGSO had been responsible for the conduct of both proceedings.
None of these matters establishes why the Court should consider applications to reopen the proceedings leading to the judgment of 20 December 2023 or why the Court should allow an application to be made that I should recuse myself.
Costs
It is now three months since the date I allowed for the plaintiffs to file submissions on costs. Much of that time has been taken by the plaintiffs seeking to reopen the proceeding. I have given them the opportunity to state their basis for such an application, but they have been unsuccessful.
I will allow the plaintiffs another 14 days to make any submissions regarding the costs of the hearing of this proceeding on 2 and 23 June, 28 July, 1, 2, 4, 9, 10 August and 9 and 10 November 2023. If they make such submissions, I will then direct that the defendants have a right to reply to them. If the plaintiffs do not, I will proceed to give my decision on costs without further notice.
I will direct the plaintiffs and IBAC to confirm whether they wish me to decide the costs of the hearing days that relate to the plaintiffs’ claims against IBAC, save for those costs that I have already decided. Unless both the plaintiffs and fourth defendant request the Court not to decide those costs, I will proceed to decide them.
SCHEDULE OF PARTIES
| SHIVESH KUKSAL | First Plaintiff |
| LULU XU | Second Plaintiff |
| V | |
| STATE OF VICTORIA | First Defendant |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
| THE VICTORIAN LEGAL SERVICES BOARD | Third Defendant |
| THE INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION | Fourth Defendant |
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