Kuksal v Victorian Legal Services Board (Recusal, Stay and Costs)
[2024] VSC 78
•8 March 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: | 29 February 2024 |
DATE OF RULING: | 8 March 2023 |
CASE MAY BE CITED AS: | Kuksal v Victorian Legal Services Board (Recusal, Stay and Costs) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 78 |
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PRACTICE AND PROCEDURE – Application for recusal – Where previous unsuccessful applications made – Whether allegations of prior errors justify a finding of apprehended bias – Where circumstances do not justify a finding of apprehended bias – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Kuksal v Victorian Legal Services Board (Recusal Application) [2023] VSC 722.
PRACTICE AND PROCEDURE – Application for stay or adjournment of costs application – No basis to stay or adjourn.
COSTS – Application for indemnity costs and to fix a gross sum – Whether affidavit may exhibit invoices with entries not relied upon redacted – Whether party should be permitted to lead evidence of alleged historic poor practice or to challenge the disposition of applications when deciding costs of the determination of those applications – Where Court decides costs on the basis that its decisions were correct – Costs ought to follow event – Fixed sum ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | Litigant in person | N/A |
| For the Second Plaintiff | N/A | 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 M Norton | Corrs Chambers Westgarth |
HIS HONOUR:
A. Background
In this proceeding, Mr Shivesh Kuksal, Ms Lulu Xu, People Shop Pty Ltd and Mr Peter Ansell (the first and third to fifth plaintiffs) contend that the Victorian Legal Services Board, the first defendant (‘the Board’), Mr Damian Neylon, Mr Gordon Cooper and Mr Howard Rapke, the second to fourth defendants respectively, acted improperly to the plaintiffs’ detriment in a variety of ways. Further detail is contained in an earlier decision I have given: Kuksal v Victorian Legal Services Board.[1] Ms Maria Di Gregorio, the second plaintiff, has filed a notice of discontinuance. Mr Kuksal presented argument that Ms Xu and Mr Ansell, for the most part, adopted. When I hereafter refer to the plaintiffs, I am referring, unless the context otherwise requires, to Mr Kuksal, Ms Xu and Mr Ansell.[2]
[1][2023] VSC 495.
[2]People Shop Pty Ltd, as a company, is not able to take a step in the proceeding otherwise than by a solicitor: Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.17(1). No application was made for a dispensation from the requirements of that rule. Its interests are, as I understand it, aligned with the interests of the other plaintiffs.
Certain applications in this matter had been listed for hearing on 5 December 2023. On 24 November 2023 and on 28 November 2023, the plaintiffs informed the defendants and the Court (by email) that they wished to make various applications at the 5 December 2023 hearing including that I recuse myself. On 29 November 2023, the plaintiffs were directed (also by email), among other things, to file a summons and to file and serve a written submission of no more than 10 pages and any affidavit material in support by 1 December 2023.
On 4 December 2023, the plaintiffs filed a summons returnable on 5 December 2023 in which they sought a release from an implied undertaking associated with the obtaining of documents in a proceeding brought by Mr Kuksal in the Magistrates’ Court of Victoria,[3] permission to amend the originating motion, and an order that I recuse myself.[4] The plaintiffs did not file and serve a written submission. The plaintiffs did not file and serve any affidavit material by 1 December 2023. The application that I recuse myself was instead supported by an affidavit sworn by Mr Ansell on 4 December 2023. It had exhibits totalling more than 8,500 pages as well as some audio and visual files. The plaintiffs also relied on an affidavit sworn by Mr Ansell on the morning of 5 December 2023, that is the morning of the hearing.
[3]Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[4]As my earlier decision makes clear, the plaintiffs had previously advised the parties and the Court previously that they intended to make such applications.
On 5 December 2023, Mr Kuksal presented argument, and his argument was adopted by Mr Ansell, and adopted with some additional matters raised by Ms Xu. The argument took the day. I reserved my decision.
On 11 December 2023, I dismissed the summons for my recusal, the release of the implied undertaking and for leave to amend the originating motion, and published reasons for my decision: Kuksal v Victorian Legal Services Board (Recusal Application).[5]
[5][2023] VSC 722.
Mr Kuksal was unable to appear on 11 December 2023 at the handing down of my decision. The defendants indicated that they would seek costs. Due to Mr Kuksal’s unavailability, on 11 December 2023 I reserved costs and listed the proceeding for mention, to deal with the application for costs and the listing of applications that were not heard on 5 December 2023, on a date to be fixed not before 29 January 2024. It was made clear in ‘Other Matters’ that the question of costs would be considered at the next return. On 31 January 2024, I made orders on the papers requiring the parties to file and serve submissions as to costs and any affidavit material in support by 6 February 2024, to file and serve any submissions and affidavit material in reply by 9 February 2024, and listed the application for costs for hearing and a further mention on 12 February 2024.
Due to problems with unavailability, the date for the hearing of the application for costs and the mention was moved from 12 February 2024 to 29 February 2024.
On 6 February 2024, the defendants filed an affidavit sworn by Mr Benjamin Davidson from Corrs Chambers Westgarth, who are the solicitors for the defendants, and a written submission in accordance with the orders made. The plaintiffs did not file any material on the question of costs by 6 February 2024 as had been ordered.
B. The preliminary, oral applications made by the defendants
When the matter was called on, the defendants submitted that I ought not to hear the application for costs because:
(a) I should recuse myself due to apprehended or actual bias; alternatively,
(b) The application for costs should be stayed or adjourned pending the hearing of a proposed appeal, in a related proceeding, to the Court of Appeal.
The plaintiffs had not filed any submissions in advance of the hearing on 29 February 2024, nor, as I understand it, had they notified the defendants of those applications. I nonetheless allowed those applications to be made.
B.1. The application for recusal
The application for recusal was the most recent in a series of such applications brought by Mr Kuksal, Ms Xu and Mr Ansell. Mr Kuksal relied in particular on events that took place in a different proceeding before me, in which Mr Kuksal is also a party, earlier this month. He submitted that I acted, or appeared to act, as an ‘advocate’ for the other party, chose to intervene to prevent him from properly presenting arguments including arguments that were ‘unbeatable’ or ‘invincible’, failed to address arguments he presented that I was obliged to address, improperly relied on information that was provided other than in open court, ‘blindly’ endorsed the Board’s assertions, and engaged in conduct that was ‘incontrovertibly misleading’ that prejudiced his access to justice. This is not a complete list of his complaints. Mr Kuksal’s submissions were adopted by Ms Xu and Mr Ansell although, as I understood it from what Mr Kuksal said, Mr Ansell did not join in a submission of actual bias.
I reject the submission that I should recuse myself. If I have made errors in my handling of the plaintiffs’ matters, the plaintiffs can raise these concerns with the Court of Appeal, as they say they intend to do. The making of an error is not of itself a reason for which the fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues that arise.[6] I do not accept that my conduct otherwise had the characteristics for which Mr Kuksal and the other plaintiffs contend.
[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
I note, also, that it would be wrong for me to recuse myself simply because repeated applications for recusal have been made. A judge has a duty to exercise their judicial function when they are assigned to a case and ‘litigants do not choose their judges’. It would be ‘intolerable’ if a situation were reached where a party, by the repeated making of objections, none of which were sufficient, could influence the composition of the Bench.[7]
[7]Ibid 348 [19]-[20] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
B.2 The application for a stay or for an adjournment of the defendants’ costs application
The plaintiffs submitted that the defendants’ application for the costs of the plaintiffs’ 4 December 2023 summons should be either stayed pending the hearing of an appeal that the plaintiffs intend to bring in the Court of Appeal or at least adjourned for a period of time until that appeal is commenced. The appeal was described as being ‘imminent’. The appeal has not yet been commenced because, Mr Kuksal said, new grounds have had to be added as events have unfolded.
The plaintiffs propose to contend in their appeal that I have committed various legal errors and that my conduct was of the type referred to above and otherwise in breach of a variety of legal norms. It seems that they will be seeking declaratory relief, at least, in that respect. They submit that until the issue of whether I have erred or failed to act impartially is determined by the Court of Appeal, I should not hear the costs application presently before me.
I do not accept that the hearing of the costs argument or the making of costs orders should be delayed due to the proposed appeal by the plaintiffs. The costs argument is discrete. The plaintiffs are the respondents to the application for costs. The defendants, who succeeded in obtaining orders dismissing the plaintiffs’ summons, should have their application for costs determined now and not have it delayed because the plaintiffs intend to mount an appeal. If the plaintiffs can establish that I erred in a way that was material to the orders made on the return of the plaintiffs’ summons, then they can seek to have any costs order made by me set aside by the Court of Appeal. That, however, would be a matter for the Court of Appeal. Equally, if the plaintiffs can persuade the Court of Appeal that their appeal has sufficient strength and there is sufficient prejudice to them otherwise, they may be able to obtain an order staying any costs order made by me. Again, however, that would be a matter for the Court of Appeal.
At one point, Mr Kuksal submitted that if I were to make a costs order it would render his appeal nugatory, and would reveal ‘pre-judgment’ of the matter. I do not, for the reasons set out above, accept that this is so.
C. Should the plaintiffs be ordered to pay the defendants’ costs of the 4 December 2023 summons?
C.1 Misconduct on the part of others and alleged errors on my part
Mr Kuksal submitted that it would be ‘scandalous’ if a costs order were made against the plaintiffs, who are self-represented litigants (he had, presumably, Ms Xu particularly in mind, given that Mr Ansell is a qualified lawyer and Mr Kuksal does not consider himself to be inexpert in legal matters). He contended that the Board, with the assistance of the Court, was ‘weaponising’ the costs process. He emphasised that the Board was a ‘model litigant’, the judiciary should not permit a model litigant to benefit from impropriety, and that if I made a costs order in the Board’s favour I will have ‘incentivised the executive’ for creating ‘mischief’.[8] He sought to put material before me that, he said, would establish that:
(a) A solicitor at Corrs Chambers Westgarth, the Board’s solicitors, Mr Davidson, who had prepared the affidavit in support of the application for costs, had in the past prepared ‘fraudulent’ affidavits; and
(b) The Board, and its lawyers including its counsel, had acted improperly in the way it had dealt with his wish to rely on documentary evidence that he had obtained in the Magistrates’ Court that was subject to a Harman undertaking, and had failed properly to assist the Court on that issue.
[8]Mr Kuksal relied on Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155, in which case the Court indicated that a model litigant should not take technical points, and Director of Public Prosecutions v Smith [1991] 1 VR 63, in which case the Court observed that there is a public interest in the due administration of justice.
When asked to expand on his concerns, Mr Kuksal noted that one of the invoices from Corrs Chambers Westgarth was directed to the Board marked to the attention of John Mazaris. Mr Kuksal contended that this in some way indicated that Mr Mazaris or the Board had acted improperly.
I indicated to Mr Kuksal that I would not, in the circumstances, permit him to lead evidence that was directed at establishing historic bad practice on the part of the Board. This case, as currently formulated, is about, in large part, whether the defendants have been motivated by an improper desire to harm the plaintiffs and have acted unlawfully. That issue does not have to be determined prior to a determination of which parties should bear the costs of the plaintiffs’ 4 December 2023 summons. The question of who should pay those costs turns on how the parties have conducted themselves in relation to the disposition of that summons, not on how they might have otherwise behaved in the past.
I also indicated to Mr Kuksal that I would not, in the circumstances permit him to lead evidence that was directed at establishing that I should not have made the decisions on the 4 December 2023 summons that I made. I informed Mr Kuksal, as is the case, that I will determine the question of costs on the assumption that I was correct to dismiss the applications made by the 4 December 2023 summons. Consistently with my observations earlier in relation to the proposed appeal, if the plaintiffs can establish to the Court of Appeal’s satisfaction that my decisions were wrong, then costs may have to be assessed on some other basis. But that is for another day.
Further, when asked why, if he sought to impugn Mr Davidson’s honesty by reference to earlier affidavits, and to file material that established that dishonesty, he had not filed any submissions or material directed to that issue in accordance with the directions made, Mr Kuksal stated that he had not read the defendants’ submissions or affidavit material until the morning of the hearing.
Mr Kuksal then provided the Court, after lunch, electronically, with a folder of eight documents that he said he wished to rely on. The main document on which he sought to rely, a document entitled ’22.02.24 – SK and BD (Corrs) – Kuksal litigation’, was 671 pages long. It was not practical or an appropriate use of Court time to review documents of that length, provided during the hearing, even if admissible, on the question of the costs of a summons. Mr Kuksal identified 14 pages on which he wished in particular to rely. Notwithstanding my earlier rulings, I said I would consider those pages. In circumstances where the defendants had not been given time to consider those documents, I indicated that I would reserve, consider those pages in chambers, and, if I felt I needed to hear further from the defendants, I would re-convene or ask for some submissions in writing.
The first three pages consisted of emails between Mr Davidson and Mr Kuksal all sent on 22 February 2024. At 2:20pm, Mr Davidson asked that Mr Kuksal direct material to the persons at Corrs Chambers Westgarth who had the ‘day to day carriage’ of the proceeding. At 4:48pm, Mr Kuksal replied stating that he had no objection ‘in principle’ with that request, said he was not obliged to comply with the request, and, if he did not comply with that request, he did not want Mr Davidson ‘to dishonestly exploit’ that fact, and otherwise suggested that ‘instead of wasting his time’, Mr Davidson should set up an automatic forwarding process. At 5:32pm, Mr Davidson thanked Mr Kuksal for his response. At 6:15pm, Mr Kuksal sent an email to Mr Davidson in which Mr Kuksal noted his ‘disapproval of’ Mr Davidson’s ‘character’ and his distrust in Mr Davidson’s ‘capacity to comply with [his] ethical obligations’. That email attached an affidavit sworn by Mr Ansell on 24 May 2023. Mr Kuksal stated that the affidavit had first been served approximately nine months ago, and that:
As I have previously put you on notice, I intend to rely on your silence as evidence of admission of our claims in the previously foreshadowed applications against you and/or your colleagues.
The other pages on which Mr Kuksal relied formed part of Mr Ansell’s affidavit in which Mr Ansell accused the Board of engaging in, among other things, a ‘nefarious campaign’ to disrupt court proceedings, and otherwise accused Mr Davidson, other persons at Corrs Chambers Westgarth and the Board, of acting improperly in various ways. A number of pages appeared to refer to a related criminal proceeding which are not relevant to this costs application.
Then, on 7 March 2024, after he had been informed that the Court proposed to publish its reasons and make orders on 8 March 2024, Mr Kuksal emailed the Court and sought leave to rely on some additional documents. Ms Xu sent an email supporting Mr Kuksal’s position. These were:
(a) an email from Mr Kuksal to Mr Davidson sent on 22 February 2024 at 6:14pm, which appears to be identical to the 6:15pm email exchange referred to above save for the inclusion of cited paragraphs of certain authorities;
(b) an email from Mr Davidson sent on 22 February 2024 at 7:21pm in response that thanked Mr Kuksal for his email and stated that his comments were ‘noted’;
(c) an email from Mr Ansell to Mr Davidson dated 21 February 2024 with an attached letter. The attached letter of that same date informed Mr Davidson of various ways in which Mr Ansell contended that I had erred and that I ought to recuse myself on the grounds of apprehended bias, that the ‘defendants’ (presumably, the plaintiffs in this proceeding) were pursuing a ‘complaints process’ against me ‘through the Judicial Commission Victoria’, that Mr Kuksal and Ms Xu would be ‘seeking further determinations … in respect of what they deem to be bad faith, recklessness and arbitrariness in the manner in which his Honour has illegitimately usurped the Court’s authority’ and other observations of that type; and
(d) an email sent by Mr Kuksal on 7 December 2023 to Ms Norton, a barrister who had appeared for the Board, and a solicitor at Corrs Chambers Westgarth, Mr Armour. In this email, Mr Kuksal asserted that Ms Norton made misrepresentations to the Court in relation to whether affidavits or exhibits and been filed or served and that this was ‘an extension of the pattern of conduct adopted by [the Board’s] representatives in these proceedings’ and that ‘the ostensible purpose of these nefarious tactics seems to be the perversion of the course of justice by preventing the Court from properly exercising its jurisdiction to dispense justice in the proceeding’.
The emails in sub-paras (a) and (b) above formed later emails in the same chain previously provided, or in the case of (a) may have been the correct version of the emails sent. In any event, I am prepared to allow the plaintiffs to rely on those additional emails. I am satisfied that their omission was a simple mistake.
The emails referred to in sub-paras (c) and (d) are of a different quality. There is no reason why, if they were to be relied on, they could not have been produced in accordance with the Court’s orders. Be that as it may, I have decided to allow the plaintiffs to rely on this material.
I have not invited the defendants to address me on these new documents because they have not caused me to reach a different conclusion to the conclusion that I had previously reached based on the documents provided at the hearing.
I do not consider that the email communications and attachments are relevant to the exercise of my discretion in relation to the costs of the plaintiffs’ 4 December 2023 summons. I reject Mr Kuksal’s submission that any failure to respond to Mr Kuksal’s communications amounted to an admission by Mr Davidson, or his client, of misconduct. Mr Kuksal referred me, in this respect, to s 87 of the Evidence Act 2008. That section, among other things, makes an exception to the hearsay rule so that a party may lead evidence of an admission made by another party. But it does not establish that a failure to respond to allegations is an admission of the truth of those allegations. But in any event, I am presently concerned only with the costs of the 4 December 2023 summons, not the costs of the proceeding more generally.
I also reject Mr Kuksal’s submissions that the Board should not have its costs because it is a model litigant that has acted improperly. A model litigant is entitled to a costs order in its favour if the circumstances warrant it and there was nothing improper in the manner in which the Board resisted the plaintiffs’ 4 December 2023 summons. Even if counsel for the Board, Ms Norton, had erroneously said that an exhibit had not been filed when it had been or had made an error or that type (as to which I make no finding), that would be no reason to deny her clients their costs of the summons. There is no basis to conclude that any such error caused additional or unnecessary costs or that it was made as part of some dishonest attempt to mislead such that costs of the summons should not be ordered as some form of punishment.
The document that contains allegations of misconduct by me, also, in my view, is of no relevance to the question of how I should exercise my discretion as to costs. Just as it would be wrong for me to orders costs against the plaintiffs because they contended that I had acted improperly, it would be wrong of me not to orders costs against the plaintiffs because they had contended that I had acted improperly.
C.2 Mr Davidson’s affidavit
In his 6 February 2024 affidavit, Mr Davidson deposed that (and the figures below are exclusive of GST):
(a) Corrs Chambers Westgarth has invoiced the defendants $5,492.10 for work done in December 2023 relating to the recusal application and in preparation for the court hearings on 5 and 11 December 2023;
(b) In his estimate, Corrs Chambers Westgarth will invoice the defendants ‘at least’ an additional $2,228.50 for work done for preparation of the application for costs;
(c) Mr Maree Norton, counsel, has issued a fee of $3,272.73 for her appearance on 5 December 2023;
(d) Counsel was not engaged to appear on 11 December 2023;
(e) Ms Norton was engaged to prepare the costs application and (at least as at the time of the affidavit) has not issued an invoice but that he is ‘instructed’ that she will issue a fee in the amount of $818.18 for doing so;
(f) Corrs Chambers Westgarth has incurred a disbursement of $2,030.70 for the transcript of the 5 December 2023 hearing and a disbursement of $178.56 for the transcript of the 11 December 2023 hearing.
Mr Davidson exhibited some invoices.[9] Mr Davidson stated in his affidavit that the invoice showed ‘only the amounts claimed by the defendants’ in respect of the hearing the subject of the application for costs. The other entries on the invoices had been redacted. Mr Kuksal disputed Mr Davidson’s right to rely on redacted invoices, and said that he wished to cross-examine Mr Davidson.
[9]There was a mistake in the exhibiting of one invoice. This was brought to my attention by counsel for the defendants. The body of the affidavit deposed as to the relevant figures. Mr Kuksal, to his credit, did not contend that that mistake was of consequence.
I do not accept that Mr Davidson was not permitted to rely on redacted invoices. He identified those entries in the invoices that he says were for work performed on the 4 December 2023 summons and for which he seeks to recover costs. The entries on the invoices in respect of which Mr Davidson is not seeking costs (because he does not contend that they relate the hearing of the 4 December 2023 summons) are not relevant. The redactions did not mean that no sense could be made of the unredacted parts. When asked how the redacted parts would be relevant, Mr Kuksal submitted that they might reveal a fee being charged for engaging in conduct designed to pervert the course of justice. I was not persuaded that that possibility made the other entries on the invoices relevant. Mr Kuksal also contended that, as a matter of law, it was not permissible for Mr Davidson to redact a document on which he sought to rely. Mr Kuksal was, in my view, thinking of the situation where a document is produced under a compulsory court process, such as discovery. A party obliged to discover a document might be prevented from redacting a relevant document, at least without the Court’s permission. But that is not this case. In my view, a party seeking to identify the costs that it has incurred on a particular point is entitled to redact those parts of its invoices in respect of which it is not seeking costs.
Mr Kuksal suggested that any privilege in the invoices had been waived. I do not have to decide this issue on the basis of any privilege in the invoices sent. In my view, the question turns on confidentiality and relevance. I am satisfied that the redacted material was not relevant to the issue that I have to decide. Assuming, however, that the invoices were privileged (as Mr Kuksal seemed to accept), I do not consider that there is any inconsistency between the Board relying on those parts of its invoices that relate to costs incurred for the 4 December 2023 summons and its maintaining privilege over those parts that relate to other issues.[10]
[10]Cf: Evidence Act 2008 (Vic) s 122(2); Mann v Carnell (1999) 201 CLR 1, 13 [29] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
Mr Kuksal also called into aid s 55ZH of the Judiciary Act 1903 (Cth). That section provides that:
(1) If a Legal Services Direction requires a person to provide any information, or produce a document or record, to another person, the person must not refuse to comply with the Direction on the ground of legal professional privilege or of any other duty of confidence.
A ‘Legal Service Direction’ is a direction issued by the Attorney-General that applies to Commonwealth legal work.[11] There is no suggestion that the Attorney-General has directed the Board, or Corrs Chambers Westgarth, or anyone else, to provide the invoices to the plaintiffs in this proceeding, or that, if he had, that would be a direction that applied to Commonwealth legal work. There is nothing in Mr Kuksal’s reliance on s 55ZH of the Judiciary Act 1903.
[11]Judiciary Act 1903 (Cth) s 55ZF(1).
Mr Kuksal had not given any prior notice of his request that Mr Davidson be made available for cross-examination. It may be that this was because, as noted above, Mr Kuksal did not read Mr Davidson’s affidavit until the day of the court hearing. Be that as it may, when I asked Mr Kuksal to identify the forensic purpose for which he wished to cross-examine Mr Davidson, he did not identify a legitimate forensic purpose in the context of the issue presently before me. He did not, for example, indicate that he wished to challenge Mr Davidson’s evidence that the identified invoiced amounts were for work related to the hearing and determination of the plaintiffs’ 4 December 2023 summons (as they appeared from their descriptions to be). Rather, it emerged that he wished to cross-examine Mr Davidson with a view to establishing that Mr Davidson had engaged in improper conduct in his past conduct of this proceeding. In my view, this was not a sufficient reason to require him to be made available for cross-examination. It is to be remembered that this dispute was about a discrete amount of costs for a discrete series of applications made by the plaintiffs, and, as noted above, the fact that a party might have acted improperly in some other context is no reason to deny them costs if they succeed in defeating the applications. Certainly, it would not be in the interests of justice or in accordance with the requirements of the Civil Procedure Act 2010 to have a wide-ranging inquiry into the propriety of conduct engaged in on other occasions in the course of such an application.
C.3 Conclusion – costs should follow the event
I am satisfied that the plaintiffs should be ordered to pay the costs thrown away by reason of their summons filed 4 December 2023. An order for the payment of costs is not a punishment but rather reflects the reality that legal costs have been incurred and the question then arises as to which party should be responsible for those costs. In this case, the issue of the 4 December 2023 summons (and the presentation of the associated argument) resulted in costs being incurred by the defendants that they would not otherwise have incurred in their defence of the proceeding. The plaintiffs’ arguments failed, and in my judgment it is appropriate that costs should ‘follow the event’. The plaintiffs should pay the defendants’ costs thrown away by reason of the plaintiffs’ summons filed 4 December 2023 and of their application for costs.
D. What form should the costs order take?
D.1 Should there be indemnity costs?
The recusal application made by the 4 December 2023 summons was made not long after earlier unsuccessful recusal applications made by Mr Kuksal, Mr Ansell and Ms Xu. As my earlier reasons make clear, very little had changed and the plaintiffs were, in substance, relitigating arguments that had previously failed, and, to the extent that the plaintiffs sought to rely on events that had taken place since the earlier applications, there was no real prospect that those events might lead the fair-minded lay observer to consider that I might not bring an open mind to the issues that fell for determination.[12] Most of the Court’s time and attention was spent dealing with that application. This was not a proper use of Court time and wrongly put the defendants to unnecessary expense. This is of itself sufficient reason to order costs on the indemnity basis.
[12]Kuksal v Victorian Legal Services Board (Recusal Application) [2023] VSC 722, [25].
The application for relief from the implied undertaking was also, in my view, likely to fail in circumstances where, it emerged, no application had been made to the Court below and the parties who had produced those documents or who might be affected by their disclosure were not on notice of the application.[13] The application to amend the originating motion was not accompanied by a proposed amended document.
[13]Ibid [19].
In these circumstances, I would consider it appropriate that the costs, if not fixed, be taxed on the indemnity basis.
D.2 Should I fix costs?
The defendants also sought that the amount of the costs payable be fixed.
I am satisfied that the costs referred to in Mr Davidson’s affidavit were properly incurred by the defendants as a consequence of the 4 December 2023 summons filed by the plaintiffs and are reasonable in amount (or, certainly, were not unreasonably incurred or unreasonable in amount).[14] The defendants were entitled, if not obliged, to take the plaintiffs’ summons seriously and to engage counsel to appear on their behalf. The plaintiffs did not provide material in advance that would have permitted an orderly preparation on the part of the defendants. I am satisfied that the costs claimed would be recoverable if the matter were to go to taxation, but, also and in any event, it is appropriate in the circumstances, so as to avoid the costs and inconvenience of a taxation, to fix the defendants’ costs in the amounts sought.
[14]Which is the test if costs are to be taxed on the indemnity basis - see Supreme Court (General CivilProcedure) Rules 2015 (Vic) r 63.30.1. Also, I note, for example, that the defendants have not sought any costs for preparation done for the determination of the issues that were listed to be determined on 5 December 2023 but, because of the plaintiffs’ summons, were not able to be determined on that day.
E. Costs of the 29 February 2024 hearing
The 29 February 2024 hearing was taken up with the plaintiffs’ recusal application, and then argument about costs. The plaintiffs were unsuccessful in both respects. The defendants’ costs of engaging counsel to appear, and solicitors to instruct, on 29 February 2024 would be costs thrown away by reason of the plaintiffs’ 4 December 2023 summons. For both those reasons, the defendants should have their costs of appearing on 29 February 2024. Consistently with my reasons, those costs should be fixed. I required material to be filed on or before 6 February 2024. Unsurprisingly, that material did not identify the costs of appearing on 29 February 2024.
When I publish these reasons, I will give the defendants an opportunity to inform me of their costs of the 29 February 2024 hearing, which I anticipate will be the fee payable to counsel and the amount payable to Corrs Chambers Westgarth for instructing on that day. My intention is to make an order in relation to those costs at or shortly after the time I deliver these reasons and to include that in the orders made.
F. Disposition
I will order the first and third to fifth plaintiffs to pay the defendants’ costs thrown away by reason of the first and third to fifth plaintiffs’ summons filed 4 December 2023 fixed in the sum of $14,020.77, together with such further sum as I fix for the hearing on 29 February 2024.
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 |
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