Kuksal v Victorian Legal Services Board (Further Recusal)

[2024] VSC 508

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04028

SHIVESH KUKSAL & ORS (according to the attached schedule)	Plaintiffs
v
VICTORIAN LEGAL SERVICES BOARD (ABN 82 518 945 610) & ORS (according to the attached schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2024
DATE OF RULING:	27 August 2024
CASE MAY BE CITED AS:	Kuksal v Victorian Legal Services Board (Further Recusal)
MEDIUM NEUTRAL CITATION:	[2024] VSC 508

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JUDICIAL REVIEW – Recusal application – Where litigant makes allegations of serious misconduct on part of judicial officer – Whether fair-minded lay observer test continues to apply or whether nature of allegations results in effective disqualification of judicial officer – Whether proceeding must not continue before that judicial officer until allegations are investigated and either found proved or litigant found to be in contempt – Where fair-minded lay observer would not reasonably apprehend judicial officer might not bring an impartial mind – Where correct avenue to correct mistakes, if any, is on appeal – Recusal application dismissed – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291, Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay) [2024] VSC 367.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Litigant in person	N/A
For the Second to Fifth Plaintiffs	No appearances	N/A
For the First, Second, Third and Fourth Defendants	Mr L McAuliffe	Corrs Chambers Westgarth

HIS HONOUR:

A.  Introduction

1. People Shop Pty Ltd carried on a legal practice under the name Erudite Legal.[1]  Mr Shivesh Kuksal owns, directly or indirectly, the shares in People Shop Pty Ltd.  Ms Lulu Xu is or has been a director of People Shop Pty Ltd.  Mr Peter Ansell is a lawyer associated with People Shop Pty Ltd.  The Victorian Legal Services Board (‘the Board’), took action under the Uniform Law[2] against People Shop Pty Ltd by appointing Mr Damian Neylan as auditor and then Mr Gordon Cooper as investigator and then Mr Howard Rapke as external manager to the practice.  By an originating motion filed on 29 September 2022 headed ‘Originating Motion for Judicial Review’, and by a further amended summons filed on 3 November 2022, Mr Kuksal, Ms Di Gregorio, Ms Xu, People Shop Pty Ltd and Mr Ansell (named in the originating motion as the first to fifth plaintiffs respectively) seek relief against the Board, Mr Neylon, Mr Cooper and Mr Rapke (named in the originating motion as the first to fourth defendants respectively).  Ms Maria Di Gregorio has discontinued her claim.  When I hereafter refer to the plaintiffs, I do not include a reference to her.  My reference to the plaintiffs otherwise includes People Shop Pty Ltd, for convenience, but is not intended to amount to any grant of a dispensation from the requirement that People Shop Pty Ltd take step by a solicitor or to validate any step taken or purported to have been taken by it other than by a solicitor.[3] 

   [1]It may have had other business names as well.

   [2]That is, sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).

   [3]See Supreme Court (General Civil Procedure) Rules 2015 r 1.17.

1. On 20 May 2024, the defendants filed an amended summons by which they seek that the plaintiffs’ claims be set aside or struck out or stayed or summarily dismissed.  On 18 July 2024, the defendants’ amended summons was listed for hearing on Monday 26 August 2024.  These reasons concern an application made orally by Mr Kuksal on 26 August 2024 that I recuse myself.

B.  The background to the making of the recusal application on 26 August 2024

1. On 18 July 2024, I ordered the plaintiffs to file written submissions in support of any recusal application no less than three days prior to any application for recusal being made.  On Friday 23 August 2024, I extended the time by which any application for recusal had to be filed to 4.00pm that day.  At approximately 4.47pm that day, Mr Xu emailed to the Court an affidavit that did nothing other than to produce exhibits in support of a recusal application.  The exhibits were some 74.76 gigabytes.  No written submission was filed. 

1. On the morning of Monday 26 August 2024, Mr Ansell advised my chambers by email that he and Ms Xu had COVID-like symptoms and sought an adjournment.  My chambers provided them with an audio-visual link.  Mr Kuksal appeared in person.  He advised that Ms Xu was moving from where she resided with him and so could not attend virtually, and that Mr Ansell did not have reliable internet access.  Neither joined the audio-visual link or appeared in person.

1. Mr Kuksal then indicated or confirmed that he wished to present oral submissions in support of an application that I recuse myself.[4]  Mr McAuliffe for the Board did not object to my hearing Mr Kuksal’s application (on the basis that it was limited to one hour, which is the time that Mr Kuksal had indicated it would take).  I permitted Mr Kuksal to present his application for recusal orally.  I consider it to be an application made by him, although I accept that Ms Xu and Mr Ansell, had they appeared, would have supported his submissions.

   [4]Mr Kuksal, Mr Ansell and Ms Xu have made many such applications. As noted in footnote 24 of Kuksal v Victorian Legal Services Board (Recusal, Summons and Subpoena) [2024] VSC 418, at least 9 written decisions have been handed down by trial judges of this Court in this respect. This list does not include recusal applications made to me in proceedings in which pseudonyms were used, or recusal applications that have been made and dismissed for reasons given orally. Two further recusal applications have been made to me since the publishing of that decision on 18 July 2024 (not including the application currently before me).

1. As noted above, the affidavit circulated by Ms Xu on 23 August 2024 merely exhibited documents.  The volume of the exhibits were such that they could not easily be handled electronically.[5]  Mr Kuksal indicated that he wished to rely on approximately 12 documents, as well as a proposed originating motion he sought to file last week in which allegations of improper or ‘illegal’ conduct are made against, among others, me, the Prothonotary and the defendants’ counsel.  He provided those documents, and an additional document, separately by email during a short break in his submissions.  They were not formally tendered but I treated them as in evidence.  Mr Kuksal addressed the Court on his application until 1.30pm.  In the course of his oral argument, he referred to many cases that, he said, the Court had to consider in the course of deciding his application.  I reserved on the recusal application and adjourned the defendants’ summons to 27 August 2024.

   [5]I understand that 74.76 gigabytes is enough space to hold over 24 hours of high-definition video, or over 4.5 million pages of Word documents. 

C.  Should I recuse myself?

1. In his oral submissions, Mr Kuksal:

(a)   Took me through the complaints he has made about the conduct of the Prothonotary and the allegations that he has made against the Prothonotary relating to his failure to accept the abovementioned new proceeding for filing.  The documents reveal that the Prothonotary has refused to accept the originating motion for filing, and has provided reasons for refusing to do so.  The correspondence asserted that I had improperly involved myself in the Prothonotary’s decision, and demanded that the Prothonotary produce various records, and Mr Kuksal repeated that assertion.  The correspondence included a complaint made by email to the Chief Executive Officer of the Court;

(b)  Took me through and referred to allegations he has made against the defendants’ counsel Mr McAuliffe of improper conduct including ‘collusion’ and making misleading submissions, and correspondence by which Mr Kuksal has indicated that he proposes to raise complaints about Mr McAuliffe with the Legal Services Commissioner and the Legal Services Board;

(c)   Complained that I encouraged Mr McAuliffe to continue appearing for the Board despite the allegations that the plaintiffs were making against him;

(d)  Asserted that I have ‘encouraged’ the Board in this proceeding and in particular in its strike out application; and

(e)   Repeated allegations he has previously made of misconduct on my part.

1. Mr Kuksal also submitted that my previous decisions reveal bias or improper conduct.  He referred, in particular, to:

(a)   A ruling I recently made in another proceeding, concerning the same parties, limiting Mr Kuksal’s ability to cross-examine a witness;[6]

(b)  Circumstances in that proceeding in which I had required Mr Kuksal either to continue cross-examining in accordance with the ruling I had given or to leave the Court so that the Board could re-examine, and had then continued with the proceeding after he left Court and did not return; and

(c)   A ruling I made refusing his application to adjourn that proceeding on the basis that he would or had given notice to the Equal Opportunity and Human Rights Commission and both the Victorian and Commonwealth Attorneys-General inviting them intervene in the proceeding.[7]

[6]Handed down ex tempore on 20 August 2024 and recorded on transcript in proceeding S ECI 2022 03994.

[7]Victorian Legal Services Board v Kuksal (Judiciary Act and Charter Notices) [2024] VSC 461.

1. In substance, he submitted that:

(a)   I have made errors, in that:

(i)     I have made decisions that are blatantly contrary to legal principles – in ‘contempt of the law’; and

(ii)  I have not specifically referred in my rulings to authorities to which he has referred; and

(b)  I have made orders that were dishonest to his disadvantage or have conducted the litigation generally in a way that was patently unfair to him – Mr Kuksal has described his allegations as amounting to allegations of ‘criminal’ conduct on my part; and

(c)   The nature of the allegations he has made are such that I must recuse myself until such time as those allegations have been investigated and their veracity determined.

1. The allegations of misconduct on the part of Mr McAuliffe and the Prothonotary are in a separate category to the allegations of dishonesty made against me.  The reasonably informed lay observer would not think that the fact that Mr Kuksal has made allegations of improper conduct against those persons would cause me not to bring an open mind to the facts in issue.  That said, I accept that the allegations made against me include allegations that I have facilitated or failed to prevent the misconduct alleged against those others.

1. I am obliged to recuse myself if a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues to be decided.[8]  I do not accept that the decisions or rulings I have made have been erroneous.[9]  Even if they have been erroneous, I do not accept that they give rise to an apprehension of bias.  Equally, I do not accept that anything I have said or done in the course of this proceeding would cause an informed lay observer to think that I might not bring an impartial mind to bear.  If I have erred in some way, the proper avenue to correct such mistakes is on appeal.[10]  The reasonably informed lay observer accepts that judicial officers make interlocutory and other decisions contrary to the wishes or submissions of a party, including on matters on which parties feel strongly, without that meaning that the judicial officer may not thereafter bring an open mind to issues that later arise.  The fact that Mr Kuksal disagrees, and disagrees strongly, with decisions I have made, and expresses criticism of them in strong language, does not mean that the lay observer would think that I may not bring an open mind to the determination of the issues in the proceeding.

   [8]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

   [9]I have given reasons for the rulings I have made.  This is not an occasion to repeat or to expand upon those reasons or further to justify those rulings.

   [10]I note that Mr Kuksal, Mr Ansell and Ms Xu has not yet, so far as I know, sought leave to appeal against any of the decisions that I have made in this proceeding or in any of the related proceeding listed before me.

1. Central to Mr Kuksal’s submission is a contention that if serious allegations are made, then the persons involved must cease their involvement in the litigation until, following an investigation, the truth of those allegations have been determined or until after it has been concluded that the maker of the allegations has dishonestly made those allegations (in which case they should be charged with contempt of court).  He contended that the lay observer test is replaced by a ‘whole different test’ and that I am now ‘disqualified’ by the nature of the allegations that he has made against me.  He submitted that:

it should go to a judge who can be – whose conduct is not impugned in any manner... You cannot have an imperfect judge or a judge against whom those serious allegations have been made assess the matter.

1. I do not accept that contention.  A litigant might genuinely believe that a judicial officer is acting dishonestly, without that meaning that the judicial officer must recuse him or herself.  I do not accept that because the plaintiffs have made serious allegations of impropriety, the case must stop until those allegations have been investigated.  It is the perception of the reasonable and disinterested lay observer, and not individual litigants, that matters.  Ultimately, the question still comes down to whether a reasonable lay observer might think, in all the circumstances, that the presiding judge may not bring an impartial mind to bear on the issues that arise.[11]  A reasonable lay observer would not necessarily assume that a judge is not able fairly and justly to determine the issues in the proceeding just because serious allegations have been made against that judge.  I reject Mr Kuksal’s submission that his making of serious allegations means that the proceeding cannot continue before me until his allegations have been investigated. 

   [11]See, eg, CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385.

1. I observe, also, that it would be intolerable were it otherwise: on Mr Kuksal’s submission, a litigant could always delay a case and ensure a change of judge in any litigation by the expedient of making serious allegations against that judge if the litigant were prepared to risk the consequences of making those allegations.[12]  That litigant might, of course, face penalties if it were later proved that the allegations were made for an improper purpose or otherwise in bad faith.  That may or may not happen depending on the appetite of the judge or some other officer for further litigation.  But, in the meantime, the effects of delay and a change of tribunal would have been achieved.

   [12]Mr Kuksal seemed to be inviting a charge of contempt.  At one stage, he said: ‘Your Honour, if you do not charge me with contempt, it will bring the administration of justice into disrepute after I’ve said the things that I’ve said’.  

1. The situation might be different, of course, if the allegations were supported by plausible or persuasive evidence of wrongdoing on the part of the judge.  The question would remain, however, not whether the wrongdoing was proved, but whether the lay observer might, in light of that evidence and the allegations, consider that the judge might be biased.  Here, Mr Kuksal did not identify any evidence from which the lay observer might infer wrongdoing on my part, let alone evidence that could cause the lay observer to consider that I might not bring an impartial mind to resolving the issues that arise.  The complaints Mr Kuksal makes are, really, just assertions by him of misconduct arising out of his strong disagreement with the decisions I have made and an apparent belief on his part that those decisions are so egregious that they can only be explained by bad faith.  I consider Mr Kuksal’s complaints to be without foundation.

1. As noted, Mr Kuksal cited numerous cases in his oral submissions.[13]  For the most part, they were not relevant to the recusal application.  They were said to establish various legal principles that, he submitted, I had deliberately or wrongly ignored (to the extent that he submitted that I had acted ‘in contempt of’ the law).  Examples include cases that were said to establish: the principle of legality; the distinction between administrative and judicial functions and the important role that courts perform in supervising administrative bodies especially in the case of corrupt conduct; the fact that it is no defence to a criminal charge that a person was following orders; the Court’s powers or obligations to correct misconduct on the part of the executive; whether presumptions of regularity apply to a decision not to renew a licence; the connection between human rights and a renewal of a licence; the circumstances in which prerogative relief should be granted; and the consequences that follow from the grant of prerogative relief.  As I have previously observed, even if I have made errors and have contravened a principle of law found in one of those cases, the making of a mistake is not to be equated with bias.

   [13]He referred to, at least: A v Hayden (No 2) (1984) 156 CLR 532; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSC 227; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; Batrouney v Forster [2015] VSC 230; Berger v Council of the Law Society of New South Wales [2013] NSWCA 336; Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666; Cahill v Victorian Legal Services Commissioner [2017] VSC 177; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Coe v NSW Bar Association [2000] NSWCA 13; CUR24 v Director of Public Prosecutions [2012] NSWCA 65; Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487; Director of Public Prosecutions v Edwards [2012] VSCA 293; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Kuksal v State of Victoria [2023] VSC 438; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Menon v Council of the Law Society of New South Wales [2016] NSWSC 1322; MN Legal and Management Consultants Pty Ltd v The Council of the Law Society of New South Wales; Michail v The Council of the Law Society of New South Wales [2018] NSWSC 1410; Ousley v The Queen (1997) 192 CLR 69; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175; Woodman v IBAC [2022] VSC 684; and a dissenting judgment of Sotomayor J in Trump v United States 603 U.S. ____ (2024).

D.  Abuse of process

1. It has not been necessary for me to decide whether this recusal application is an abuse of process on the grounds that it is in essence a repeat of an application previously dismissed brought on essentially the same grounds as previous applications. 

E.  Disposition

1. I am not persuaded that the reasonable lay observer might consider that I may not bring an impartial mind to bear on the issues that arise in this proceeding.  Accordingly, I will dismiss Mr Kuksal’s application that I recuse myself.

1. The making of this application has consumed a day of Court time.  The time used was contributed to by the fact that, contrary to my Orders, the application was made orally without Mr Kuksal first having filed a written submission.  I will hear the parties in due course on the question of the costs of 26 August 2024.

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SCHEDULE OF PARTIES

S ECI 2022 04028

SHIVESH KUKSAL	First Plaintiff
MARIA DI GREGORIO	Second Plaintiff
LULU XU	Third Plaintiff
PEOPLE SHOP PTY LTD (ABN 68 649 697 129)	Fourth Plaintiff
PETER ANSELL	Fifth Plaintiff
- and -
VICTORIAN LEGAL SERVICES BOARD (ABN 82 518 945 610)	First Defendant
DAMIAN NEYLON	Second Defendant
GORDON COOPER	Third Defendant
HOWARD RAPKE	Fourth Defendant