Kuksal v Victorian Legal Services Board (No 2)
[2023] VSC 526
•7 September 2023
| 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: | On the papers |
DATE OF RULING: | 7 September 2023 |
CASE MAY BE CITED AS: | Kuksal v Victorian Legal Services Board (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 526 |
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COSTS – Application for indemnity costs and to fix a gross sum – Where the appeal should not have been brought – Whether to order costs for unspecified work not yet billed.
PRACTICE AND PROCEDURE - Whether the Court can impose limits on affidavit length – Where material filed by plaintiffs is oppressive - Civil Procedure Act 2010 (Vic) ss 7 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | Litigant in person | N/A |
| For the Second Plaintiff | Litigant in person | N/A |
| For the Third Plaintiff | Litigant in person | N/A |
| For the Fourth Plaintiff | N/A | N/A |
| For the Fifth Plaintiff | Litigant in person | N/A |
| For the First, Second, Third and Fourth Defendants | Ms S Molyneux | Corrs Chambers Westgarth |
HIS HONOUR:
A. Background
On 9 November 2022, Keith JR made some directions in this proceeding. On 16 November 2022, the plaintiffs[1] filed a notice of appeal against some of those directions. The appeal was a hearing de novo. The parties before me were:
[1]With the possible exception of the fourth plaintiff, a company who has not engaged a solicitor and has not, so far as I am aware, be granted a dispensation from the requirement in r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that it not take a step in a proceeding other than by a solicitor.
(a) Mr Shivesh Kuksal, the first plaintiff, who was self-represented;
(b) Ms Maria Di Gregorio, the second plaintiff, who was self-represented;
(c) Ms Lulu Xu, the third plaintiff, who was self-represented;
(d) People Shop Pty Ltd, the fourth plaintiff, a legal practice firm, who had not engaged a solicitor and thus was not able to prosecute the appeal;
(e) Mr Peter Ansell, the fifth plaintiff, who was self-represented;
(f) the Victorian Legal Services Board (‘the Board’), the first defendant;
(g) Mr Damian Neylon, the second defendant, who was appointed by the Board to conduct a compliance audit of People Shop Pty Ltd;
(h) Mr Gordon Cooper, the third defendant, who was appointed by the Board to conduct a an investigation into suspected offences in connection with People Shop Pty Ltd; and
(i) Mr Howard Rapke, the fourth defendant, who was appointed by the Board as the external manager to People Shop Pty Ltd.
On 23 August 2023, I delivered reasons.[2] The parties asked for time to consider the question of costs, and the plaintiffs submitted that I had no power to limit the length of the affidavit material on which they could rely. I made directions for the exchange of affidavits and submissions directed at those issues, and indicated that I would decide them on the papers. These reasons deal with the costs of the appeal and whether the Court is empowered to place limits on the length of affidavit material upon which the parties may rely. These reasons are to be read, and assume a familiarity, with my earlier reasons.
[2]Kuksal v Victorian Legal Services Board [2023] VSC 495.
B. Costs
The defendants seek an order that the plaintiffs pay their costs on an indemnity basis, and also that their costs be fixed. At the hearing on 23 August 2023, I ordered the defendants to file and serve and submissions on costs by 4pm on 25 August 2023, and the plaintiffs to file and serve submissions relating to costs and the restriction on affidavit length by 4pm on 30 August 2023. The plaintiffs agreed to that timetable. I later permitted also the filing and service of affidavits on the question of costs. On 30 August 2023, the plaintiffs sought, and I granted, an extension to file and serve their submissions and affidavit material by 10am on 4 September 2023. On 4 September 2023, the plaintiffs sought, and I granted, an extension to file and serve their submissions and affidavit material by 10am on 7 September 2023. I did not grant any further extension of time. The plaintiffs did not file submissions or affidavit material in relation to costs or the restriction on the length of affidavits by the time allowed. The issues have now to be brought to a close. I have assumed that the plaintiffs oppose the costs orders sought and the proposed restriction on the length of the affidavits.
In my earlier reasons, I said, among other things:
[36]The plaintiffs’ bringing of this appeal, in the absence of any demonstrable relevant prejudice occasioned by the making of the orders under appeal, is, in my view, contrary to the provisions of the Civil Procedure Act 2010. It has resulted in wasted time for the parties and the Court and unnecessarily added to the cost of the proceeding. In my view, if the plaintiffs were interested in having this proceeding determined in a ‘just, efficient, timely and cost-effective’ manner, they would not have brought this appeal.
[37]The appeal has also delayed the determination of the proceeding generally. The plaintiffs asserted that they assumed that the appeal would be heard within a week or so. That may be so — but their acceptance of the inevitable delay even of that duration attendant on their bringing this appeal sits uncomfortably with their assertion that they did not want to take up the offer of a short adjournment of the directions hearing because they were concerned about delay. I observe, also, that the additional, and in my view unnecessary, costs of the appeal would have incurred even if the appeal were heard within a number of weeks.
I also noted that Keith JR had offered to adjourn the directions hearing in order to overcome any prejudice they might suffer, but the plaintiffs did not take up that offer. Keith JR then made it absolutely clear in the form of order that, in the event that the plaintiffs felt that they were prejudiced by the directions he made, they could return to him, under liberty to apply, to remedy that prejudice.[3]
[3]Ibid [29]-[31], [35].
The Court has the discretion to determine by whom and to what extent costs are to be paid.[4] The discretion must be exercised judicially. In my view, this is an appropriate case for the making of an order that the plaintiffs pay the defendants’ costs on an indemnity basis. This is not to punish the plaintiffs. Rather, the defendants have incurred an obligation to pay legal costs because the plaintiffs brought the appeal. The appeal was unsuccessful and, in my assessment, should not have been brought and unnecessarily added to the costs that have been incurred in this proceeding. It is fair that the burden of the costs incurred by reason of the appeal should fall on the plaintiffs rather than on the defendants.
[4]Supreme Court Act 1986 (Vic) s 24(1); see also Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.02 that requires that the discretion be exercised subject to and in accordance with ord 63.
If costs are not fixed, they will have to be taxed. That would involve the parties in further legal processes that would add expense and delay. The Court has the power to fix costs.[5] In my view, this is an appropriate case to do so. It is only appropriate to fix costs, however, to the extent that I am satisfied that the amount fixed is appropriate in the circumstances.[6]
[5]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07.
[6]See, eg: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 123C (von Doussa J); Harrison v Schipp (2002) 54 NSWLR 738, 743 [22] (Giles JA).
The notice of appeal was, as noted above, expressed in wide terms and, notwithstanding that it really created a situation where there was to be only a hearing de novo of a directions hearing, indicated that the plaintiffs would be seeking far-reaching relief at its hearing including findings that people had acted improperly. The defendants were entitled to take the notice of appeal seriously and had to be prepared to deal with it on its terms. The fact that the plaintiffs did not file any submissions in advance of the hearing meant that the potential scope of their intended appeal was not in any way focused or limited. The submissions filed on the morning of the hearing indicate that the plaintiffs, consistently with the way the notice of appeal was framed, were seeking far-reaching relief.
The defendants have filed an affidavit sworn by the solicitor with the day to day conduct of the matter on behalf of the defendants. That affidavit states that no costs are sought for the period prior to 28 June 2023. The affidavit otherwise exhibits:
(a) An invoice to the Board from Corrs Chambers Westgarth dated 30 June 2023 in the sum of $1,269.30 (not including GST) for work undertaken on 5 June 2023, 29 June 2023 and 30 June 2023. The names of the persons who performed the work have been redacted, as has the narrative part of the invoice under the heading ‘Description’. The affidavit does not refer to the fact that those details were redacted. As noted above, no claim is made in respect of the work performed on 5 June 2023. The amount claimed in respect of this invoice is $1,237.80.
(b) An invoice to the Board from Corrs Chambers Westgarth dated 31 July 2023 in the sum of $5,373.20 (not including GST) for work undertaken on 3 July 2023, 4 July 2023, 11 July 2023, 12 July 2023, 13 July 2023 and 14 July 2023. The amount claimed in respect of this invoice is $4,193.20.
The solicitor has deposed that:
Corrs’ fees represent costs incurred in respect of the following work in respect of the Notice of Appeal:
(a)considering and advising on the validity and merits of the Notice of Appeal;
(b) preparing written submissions;
(c) briefing and instructing Counsel;
(d) preparing for and attending the hearing on 17 August 2023 as instructing solicitor; and
(e) preparing this affidavit.
The affidavit states that counsel’s daily hearing fee for 17 August 2023 was $1,818.18 and there were three hours of preparation being $545.45 (both figures net of GST). I consider these fees to be very reasonable for the work done in the circumstances and note that they are well within the scale of costs.[7]
[7]Clause 19 of Appendix A to Chapter I of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides for junior counsel’s fees to be up to $6,534 per day for appearing at a trial or appeal and up to $653 per hour in preparation.
The solicitor also states, in the affidavit, that she ‘conservatively estimates that an additional $3,462.10 ... will be invoiced by Corrs for the month of August 2023 in relation to the Notice of Appeal’. No further details are given.
I am not prepared to accept, for the purpose of fixing costs, even where costs are payable on an indemnity basis, an estimate given for additional work not yet billed in particular where the details used to reach that estimate are not identified.
That said, I accept that the defendants have incurred legal costs amounting to $7,704.63 for work done as a consequence of and in preparation for the notice of appeal filed by the plaintiffs, made up as follows:
(a) $5,341.00 in solicitors’ fees, being the sum claimed in the two invoices produced; and
(b) $2,363.63 in counsel’s fees for preparing for and appearing at the hearing of the appeal.
In addition, the defendants have incurred the costs of having solicitors instruct at the hearing of the notice of appeal. Although, as noted above, I do not consider it appropriate to fix costs by reference to the solicitors’ unexplained ‘estimate’, some allowance should be made for that cost. The scale provides for a rate of $457 per hour. Taking this into account, I consider it appropriate, taking a broad brush approach, to fix the defendants’ costs of and incidental of the notice of appeal at $9,000. I am satisfied that this level of fees is reasonable in the circumstances when costs are payable on an indemnity basis.
For the above reasons, I will order that the plaintiffs pay the defendants’ costs of and incidental to the notice of appeal fixed in the amount of $9,000. The obligation to pay is a joint one.
C. Length of affidavits
The directions that I proposed to make limited the length of the affidavits that the parties could file and serve to 20 pages together with 80 pages of exhibits. As noted above, the plaintiffs submitted that I do not have the power to place such a restriction on the length of the affidavits. They did not, however, file a written submission addressing this point in the time provided.
I proposed to place the limitation because of the nature of the affidavits that have been filed or circulated by the plaintiffs in this proceeding so far. Thus far, the plaintiffs have filed the following affidavits (in addition to an affidavit affirmed by Mr Kuksal on 15 November 2022 that produced the transcript and other relevant documents before Keith JR):
(a) An affidavit affirmed by Ms Di Gregorio on 17 October 2022 and filed on that day. This affidavit is five pages long. It has 14 exhibits. Together, the exhibits total about 2,892 pages. The 1st and 3rd exhibits are ASIC information and documents associated with an incorporated legal practice certificate issued by the Board (MDG-2). Exhibit MDG-4 consists of about 187 pages of correspondence and attachments to correspondence with people associated with the Board. Exhibit MDG-5 is a bundle of reports by Mr Neylon. Exhibit MDG-6 consists of about a further 13 pages of correspondence, Exhibit MDG-7 consists of about a further 446 pages of correspondence, and Exhibit MDG-8 consists of about a further 28 pages of transcripts of A Current Affair broadcasts from May and September 2021 concerning People Shop Pty Ltd. Exhibit MDG-9 consists of about 242 pages of correspondence and attachments to correspondence with Mr Cooper or people associated with him. Exhibit MDG-10 consists of about 482 pages of correspondence and attachments to correspondence with Mr Rapke. Exhibit MDG-11 consists of about 1,320 pages of transcripts of various court hearings, meetings and telephone conversations. Exhibit MDG-12 consists of about 297 pages of ‘General LSB Evidence’, and includes correspondence, copies of affidavits and court documents filed in other proceedings, and some more transcripts. Exhibit MDG-13 consists of about 18 pages of photographs. Exhibit MDG-14 is video footage of Mr Rapke entering the premises of a transcript of what was said.
(b) An affidavit sworn by Ms Di Gregorio on 25 October 2022 and filed on that day. The affidavit is four pages long. It relates to a Mr Gordon, who was a solicitor that was employed by the firm for a period of time who alleged misconduct against Mr Kuksal and whom Mr Kuksal alleges breached employment obligations. The affidavit has a further seven exhibits. Together, these further exhibits total about 2,782 pages. Exhibit MDG-15 is about 74 pages of agreements and communications with Mr Gordon. Exhibit MDG-16 is some 2,204 pages of correspondence and other documents involving Mr Gordon. Exhibit MDG-17 is a single still image. Exhibit MDG-18 is about 55 pages of correspondence involving Mr Gordon. Exhibit MDG-19 is about 23 pages of material lodged by Mr Gordon in other court proceedings. Exhibit MDG-20 is about 238 pages of authorised transcript of court appearances in another proceeding in this Court. Exhibit MDG-21 is about 148 pages of transcripts of conversations. Exhibit MDG-22 is about 13 pages of photos and excerpts from online news articles.[8]
[8]Another affidavit was also affirmed by Ms Di Gregorio on 14 November 2022 and filed in this proceeding the next day. That affidavit was 10 pages long, and had 24 exhibits, but appeared to relate to a different proceeding involving Mr Kuksal.
(c) An affidavit affirmed by Ms Di Gregorio on 15 November 2022 and filed on that date. The affidavit is two pages long. It has two exhibits. MDG-48 is about 1,020 pages of transcripts of court appearances in other proceedings. Exhibit MDG-49 is about 1,081 pages of legal articles and other like material.
(d) An affidavit affirmed by Mr Ansell on 9 December 2022 and filed on that day. The affidavit is 42 pages long. The exhibits total 1,771 pages, including a 1,575 page exhibit of what appears to be material filed in a VCAT proceeding. They include contractual document, affidavits filed in other proceedings, and transcripts of court appearances and decisions made in other proceedings; and
(e) An affidavit sworn by Ms Di Gregorio on 21 December 2022 and filed on 23 December 2022. The affidavit is 19 pages long. The affidavit has a further 22 exhibits that total 849 pages. Exhibit MDG-53 is a ‘concerns notice’ under s 12A of the Defamation Act 2005 that, together with its attachments, is about 207 pages long. MDG-63 are unauthorised transcripts of ASIC hearings and is 163 pages long. MDG-68 is an unauthorised transcript of a VCAT proceeding that is 55 pages long. MDG-71 is an affidavit filed in another proceeding in New South Wales.
The plaintiffs have also circulated (but have not filed) an affidavit affirmed by Mr Kuksal on 17 August 2023. The affidavit is 14 pages long. The exhibits total about 1,111 pages. There is no indexing that permits navigation of the document. The longest exhibit is an 888 page affidavit filed in another proceeding.
Adding up the above, the plaintiffs have filed or circulated about 10,500 pages of affidavit material in this proceeding so far.
Further, the exhibited transcripts are not, for the most part, official transcripts but have been generated by some voice-recognition software from the audio recordings and, it is said, reviewed ‘to ensure that there is a high degree of fidelity between the transcripts and the original content’. Ms Di Gregorio has stated in an affidavit that the transcripts ‘fairly represent the substance of the discussions that they represent’. She has also said, in her affidavit, that:
28.Additionally, in order to provide the readers of the Transcripts with as much contextual detail as may be reliably conveyed, the Firm has made a considerable effort to include the descriptions of:
28.1 Background noises and ambient sounds;
28.2 Sounds representing the activities, including physical interactions between the various participates in the discussions, when clearly discernible; and
28.3 The emotions of the various speaker, including their reactions to various events as they occur, when their emotions are unambiguously perceptible from the tones and inflections in their speech, obvious physical markers such as odd breathing patterns or visual data.
In my view, the amount of material filed by the plaintiffs, and the way in which it is presented, is oppressive. It is oppressive to the extent that it requires the other parties to review the material in case it, or any part of it, proves significant in the hearing. To the extent that it contains transcripts that have been prepared in the way referred to above, it is also oppressive because it potentially then requires the other parties to obtain and to listen to the audio in order to verify that the transcript is accurate. Presenting the case in this way is contrary to the ‘overarching purpose’ of the Civil Procedure Act 2010 of facilitating the ‘just, efficient, timely and cost-effective resolution of the real issues in dispute’.[9]
[9]Civil Procedure Act 2010 (Vic) s 7.
Section 47 of the Civil Procedure Act 2010 empowers the Court to ‘give any direction or make any order it considers appropriate’ for the purpose of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose.
Accordingly, I conclude that the Court does have power to impose a page limit on the affidavit material filed, and that it is appropriate to impose such a limit in this case. The plaintiffs will be able to apply to the judge hearing the matter for leave to rely on additional material. They will, of course, likely have to persuade the trial judge that any additional material upon which they seek to rely is relevant and otherwise admissible
D. Directions
Because the appeal was a hearing de novo, and because the time by which steps were to have been taken according to the directions made by Keith JR has not passed, it is necessary to make directions in the proceeding.
In accordance with my earlier reasons, I will make orders that provide for the first three paragraphs of the plaintiffs’ summons and the defendants’ summons to be listed for hearing together. Because costs were not able to be argued on the day I published my earlier reasons, I will push back the dates by which things were to be done by a fortnight to take account of the delays occasioned by the dispute that led to these reasons.
E. Disposition
For the above reasons, I will now make the following Orders:
(a) The appeal be dismissed.
(b) The plaintiffs pay the defendants’ costs of and incidental to the plaintiffs’ notice of appeal dated 15 November 2022 and filed on 16 November 2022 fixed in the sum of $9,000.
(c) On or before 4pm on 29 September 2023, the plaintiffs file and serve any affidavit material upon which they intend to rely with respect to the determination of paragraphs 1-3 of the plaintiffs’ summons.
(d) On or before 4pm on 13 October 2023, the defendants file and serve any affidavit material upon which they intend to rely with respect to the determination of paragraphs 1-3 of the plaintiffs’ summons.
(e) On or before 4pm on 27 October 2023, the plaintiffs file and serve a written submission addressing to the determination of separate questions at paragraphs 1-3 of the plaintiffs’ summons.
(f) On or before 4pm on 6 November 2023, the defendants file and serve a written submission addressing paragraphs 1-3 of the plaintiffs’ summons.
(g) The hearing of paragraphs 1-3 of the plaintiffs’ summons be listed for hearing on a date not before 20 November 2023.
(h) On or before 4pm on 29 September 2023 the defendants file and serve any affidavit material upon which they intend to rely in support of their summons.
(i) On or before 4pm on 13 October 2023, the plaintiffs file and serve any affidavit material upon which they intend to rely in opposition to the defendants’ the summons.
(j) On or before 4pm on 27 October 2023, the defendants file and serve a written submission addressing the determination of their summons.
(k) On or before 4pm on 6 November 2023, the plaintiffs file and serve a written submission addressing the determination of the defendants’ summons.
(l) The hearing of the defendants’ summons be listed for hearing on a date not before 20 November 2023.
(m) The affidavits filed and served as permitted by these orders shall be no more than 20 pages in length and the exhibits to all such affidavits shall not exceed 80 pages in length.
(n) The submissions filed and served as required by these orders shall not exceed 15 pages in length.
(o) Subject to any order made by the trial judge to the contrary, paragraphs 1-3 of the plaintiffs’ summons and the defendants’ summons are to be listed for hearing together. The order in which the summonses are heard be in the discretion of the judge hearing them.
(p) In the event that any party seeks to rely on any additional affidavits or submissions that exceed the page lengths permitted by this order, then such an application may be made to the judge hearing the summonses.
SCHEDULE OF PARTIES
S ECI 2022 04028
| SHIVESH KUKSAL | 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 |
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