Victorian Legal Services Board v Kuksal
[2024] VSC 674
•1 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 03994
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| v | |
| SHIVESH KUKSAL & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1, 5, 20, 21 August 2024; submissions provided on 28 August and 17 October 2024 |
DATE OF JUDGMENT: | 1 November 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Kuksal |
MEDIUM NEUTRAL CITATION: | [2024] VSC 674 |
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INJUNCTION – Whether second defendant ought be restrained from engaging in legal practice – Where contended practicing certificate not renewed due to conspiracy – Whether second defendant engaged in legal practice following plaintiff’s refusal to renew practicing certificate – Where on balance of probabilities second defendant breached s 10 of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘Uniform Law’) – Appropriate to enjoin second defendant from engaging in legal practice.
INJUNCTION - Whether first and fourth defendants ought be enjoined from representing company is entitled to engage in legal practice – Where company not able to engage in legal practice – Where fourth defendant company secretary and former director and where first defendant beneficial owner – Whether first defendant ‘shadow’ director – Where on balance of probabilities first defendant director, and first, second and fourth defendants breached s 11(2) of the Uniform Law – Appropriate to enjoin first, second and fourth defendants from representing company entitled to engage in legal practice – In re Sanderson; Ex parte Law Institute of Victoria [1927] VLR 394 – Uniform Law ss 3, 6, 10, 11, 13, 105, 106, 447.
EVIDENCE – Admissibility – Hearsay – Where reports prepared by appointed auditor of law practice contained hearsay representations – Whether reports admissible under the business records exception – Whether plaintiff had contemplated proceedings at time when business records were made – Whether contents of reports ought be excluded or limited – Appropriate to rely on reports without restriction – Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235 – Hendricks v El-Dik (No 2) (2015) 303 FLR 118 – Evidence Act 2008 (Vic) ss 59, 69, 135, 136.
PRACTICE AND PROCEDURE – Facts admitted and documents proved by way of notices to admit – Where facts and documents not disputed in prescribed time – Whether Supreme Court (General Civil Procedure) Rules 2015 (Vic) applied to proceeding – First, second and fourth defendants taken as having admitted those facts and documents for the purpose of this proceeding – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 35.
PRACTICE AND PROCEDURE – Where repeated oral recusal applications made by first, second and fourth defendants without notice – Whether affidavits of plaintiff ought be admitted in light of page limits – Where substantive delays and non-compliance with pre-trial directions and orders by first, second and fourth defendants, including failure to file written submissions and applications to adjourn trial – Where new proposed proceeding sought to be initiated mid-trial naming plaintiff’s counsel, plaintiff’s instructing solicitor and trial judge as proposed defendants – Where first defendant not present for portions of trial –Victorian Legal Services Board v Kuksal (No 2) [2023] VSC 698, 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, Victorian Legal Services Board v Kuksal (Adjournment) [2024] VSC 459, Victorian Legal Services Board v Kuksal (Judiciary Act and Charter Notices) [2024] VSC 461 – Charter of Human Rights and Responsibilities Act 2006 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L McAuliffe | Corrs Chambers Westgarth |
| For the First Defendant, Fourth Defendant | Litigants in person | |
| For the Third Defendant | N/A |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. Preliminary Issue – the proposed recusal application.......................................................... 1
C. The ability of Mr Ansell and People Shop Pty Ltd to engage in legal practice and the background to this application................................................................................................. 3
C.1Mr Ansell................................................................................................................................ 3
C.2People Shop Pty Ltd.............................................................................................................. 4
C.3The issues that arise.............................................................................................................. 6
D. Evidence and conduct of the trial.............................................................................................. 6
D.1The Board’s affidavits and the page limit application..................................................... 6
D.2The progress of the trial....................................................................................................... 9
D.3The conduct of Mr Kuksal................................................................................................. 10
D.4Admissibility issues............................................................................................................ 12
D.4.1Hearsay representations exhibited to the Board’s affidavit material............. 12
D.4.2Whether the business records exception applies to the Neylon reports........ 13
D.5Issues concerning the notices to admit............................................................................ 15
D.6Comments regarding the lack of material from any of the defendants...................... 18
E. The case against Mr Ansell........................................................................................................ 20
E.1Should Mr Ansell be treated as if he still has a practising certificate?........................ 20
E.2Has Mr Ansell contravened the Uniform Law?.............................................................. 20
E.3Should an injunction be made against Mr Ansell?......................................................... 23
F. The case against Mr Kuksal....................................................................................................... 23
F.1Was Mr Kuksal in contravention of the Uniform Law?................................................. 23
F.1.1Did Mr Kuksal represent that People Shop Pty Ltd was entitled to engage in legal practice?.................................................................................................................. 23
F.1.2Was Mr Kuksal a director, partner, officer, employee or agent of People Shop Pty Ltd?.................................................................................................................................. 25
F.2Lay associates....................................................................................................................... 28
F.3Should an injunction be made against Mr Kuksal?........................................................ 29
G. The case against Ms Xu............................................................................................................. 30
G.1Was Ms Xu in contravention of the Uniform Law?....................................................... 30
G.2Should an injunction be made against Ms Xu?............................................................... 31
H. What form should the injunctions take?............................................................................... 31
I. Disposition................................................................................................................................... 32
HIS HONOUR:
A. Introduction
The Victorian Legal Services Board, the plaintiff (‘the Board’), appointed an auditor, Mr Damian Neylon, and then an external manager, Mr Howard Rapke, to People Shop Pty Ltd, a law firm that traded as Erudite Law and also, on occasion, New Edge Law. The appointments were made pursuant to powers in the Uniform Law by which the legal profession is regulated.[1] Mr Shivesh Kuksal and Ms Lulu Xu, the first and fourth defendants, are persons associated with People Shop Pty Ltd. Mr Peter Ansell, the second defendant, is a lawyer associated with People Shop Pty Ltd. On 21 October 2022, this Court made interlocutory orders that, in general terms, restrained Mr Shivesh Kuksal and Ms Lulu Xu from sending emails from the email domain ‘@eruditelegal.com.au’, sending or issuing correspondence purporting to be sent by or on behalf of Erudite Legal or representing that they were managing the affairs of Erudite Legal. The Board now seeks, again speaking generally, final relief of that type, as well as an injunction restraining Mr Ansell from engaging in legal practice whilst he does not hold a practising certificate.
[1]That is, sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).
These reasons concern the Board’s applications against each of Mr Ansell, Mr Kuksal and Ms Xu. The Board was earlier granted leave to discontinue against Ms Maria Di Gregorio, the third defendant. I will hereafter refer to Mr Ansell, Mr Kuksal and Ms Xu as the defendants.
B. Preliminary Issue – the proposed recusal application
I have previously dismissed applications made in this proceeding that I recuse myself for apprehended bias on 28 November 2023[2] and 4 June 2024.[3] On 4 June 2024, the defendants indicated that they wished to apply also for an order that I recuse myself for actual bias. Later that same day I made orders for the filing and service of affidavits and submissions in support of such an application and made it clear that if the material was not filed I might dismiss the application without having an oral hearing. No material was filed or served, and on 26 June 2024 I dismissed the application that I recuse myself for actual bias.[4]
[2]Victorian Legal Services Board v Kuksal (No 2) [2023] VSC 698.
[3]Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291.
[4]Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay) [2024] VSC 367. Mr Kuksal has previously submitted that this was unnecessary because although the application was foreshadowed, it was never in fact brought.
On 5 August 2024, the defendants said that they wished to make another application that I recuse myself. I ordered that day that any further recusal application be made by filing and serving a written submission no later than 4:30pm on 7 August 2024. No such material was filed. However, when the matter was called on for hearing on 20 August 2024, the defendants sought to apply, again, orally and without notice, for an order that I recuse myself. No explanation was offered as to why the 5 August 2024 order was not complied with. The attempt to bring such an application, orally, would have delayed the hearing of the trial. I indicated on 20 August 2024 that I would not then hear an oral application for that reason and ordered that any application that I recuse myself be made by filing a written submission and any affidavits in support by midday on 22 August 2024.
No submission or affidavit material was filed by midday on 22 August 2024. On the morning of 23 August 2024, the defendants contacted my chambers seeking an extension of time by which they could bring any recusal application. I made orders granting them until 4pm that day to do so. At approximately 4:43pm that day the defendants provided my chambers by email an affidavit affirmed by Ms Xu deposing that it was prepared in support of a recusal application. The text of the affidavit merely exhibited, or purported to exhibit, a copy of an originating motion that had been ‘lodged’ with the Court on 21 August 2024, another affidavit, and two ‘folders’ of documents. A link to the exhibits was provided. The exhibits were some 74.76 gigabytes. No submission in support of the recusal application was provided. On 27 August 2024, I dismissed a recusal application in a related proceeding that relied on a near-identical version of the aforementioned affidavit.[5] As noted, Ms Xu’s affidavit of 23 August 2024 did nothing more than seek to produce documents.[6] On 22 October 2024, my chambers received further material from the defendants via email including a document, said to have been written by Mr Ansell, that, among other things, asserted that it was scandalous that I had tolerated their making the serious accusations of misconduct they had made, and that the defendants consider I have ‘no legitimate carriage’ of the proceeding. There is nothing in this material that persuades me that I ought to recuse myself. I will dismiss the recusal application made on 23 August 2024.
C. The ability of Mr Ansell and People Shop Pty Ltd to engage in legal practice and the background to this application
C.1 Mr Ansell
[5]See Kuksal v Victorian Legal Services Board (Further Recusal) [2024] VSC 508, concerning related proceeding S ECI 2022 04028.
[6]Ibid [3], [6].
As noted above, People Shop Pty Ltd traded as a law firm under the name Erudite Legal (and on occasion, New Edge Law). As discussed further below, in order to do so, it was required to have as a director a person with legal qualifications and an Australian practising certificate. On 10 December 2021, Mr Ansell was appointed a director of People Shop Pty Ltd. He has been admitted to practice and, at that time, had a practising certificate. He ceased to be a director of People Shop Pty Ltd on 20 February 2022, but was reappointed on 10 June 2022 and remains a director.
On 18 October 2022, the Board decided to refuse Mr Ansell’s application for a renewal of his practising certificate on the grounds that he was not a fit and proper person to hold one. Section 10 of the Uniform Law provides that an entity must not engage in legal practice unless it is a qualified entity. The word ‘entity’ includes both individual persons and corporations.[7] A ‘qualified entity’ relevantly means an ‘Australian legal practitioner’ or a ‘law practice’.[8] An ‘Australian legal practitioner’ is an Australian lawyer who holds a current ‘Australian practicing certificate’.[9] An ‘Australian practicing certificate’ is, relevantly, a practising certificate granted to an Australian lawyer under Part 3.3 of the Uniform Law.[10]
[7]Uniform Law s 6(1).
[8]Ibid.
[9]Ibid.
[10]Ibid.
By reason of the above, as from 18 October 2022, Mr Ansell ceased to have a practicing certificate and so ceased to be a ‘qualified entity’. It therefore became contrary to s 10 of the Uniform Law for him to engage in legal practice after 18 October 2022.
C.2 People Shop Pty Ltd
Section 11(1) of the Uniform Law provides that an entity must not advertise or represent, or do anything that states or implies, that the entity is entitled to engage in legal practice unless it is a ‘qualified entity’. Section 11(2) of the Uniform Law provides that a director, partner, officer, employee or agent of an entity must not advertise or represent, or do anything that states or implies, that the entity is entitled to engage in legal practice unless it is a qualified entity.
A ‘qualified entity’ includes a ‘law practice’.[11] ‘Law practice’ is further defined to mean a 'sole practitioner', a 'law firm', a 'community legal service', an ‘incorporated legal practice' or an 'unincorporated legal practice'.[12] A 'law firm' is defined as a partnership consisting only of legal practitioners.[13] The only applicable definition to People Shop Pty Ltd is therefore an ‘incorporated legal practice'. The Uniform Law provides an ‘incorporated legal practice’ must have at least one ‘authorised principal’.[14] A ‘principal’, in the case of an incorporated legal practice, is a director of the company who holds an Australian practising certificate.[15] An ‘authorised principal’ is a principal authorised by his or her practising certificate to supervise others.[16] Since 18 October 2022, Mr Ansell has been the only director of People Shop Pty Ltd. Because Mr Ansell no longer had a practising certificate from that date, as from then People Shop Pty Ltd ceased to have an ‘authorised principal’. Without an authorised principal, People Shop Pty Ltd, as from 18 October 2022, was in breach of the Uniform Law and unable to provide legal services.[17]
[11]Uniform Law s 6(1).
[12]Ibid.
[13]Ibid.
[14]Ibid s 105; see also definition of ‘incorporated legal practice’ at s 6(1).
[15]Ibid s 6(1).
[16]Ibid.
[17]Ibid s 106.
Perhaps surprisingly, however, that did not of itself mean that People Shop Pty Ltd then ceased to be a ‘qualified entity’. An ‘incorporated legal practice’ does not, under the definitions, cease to be a ‘qualified entity’ because it has not complied with its obligation to have an authorised principal, even though it cannot engage in legal practice unless and until it obtains an authorised principal. However, for a corporation to be an ‘incorporated legal practice’, it must, among other things, have ‘given a notice under section 104 that it intends to engage in legal practice in Australia’ to the Board and that notice must still be ‘operative’.[18] The Board (in its opening written submission circulated in advance of the hearing) contended that People Shop Pty Ltd ceased to be an incorporated legal practice from 7 March 2023. In support of that contention, the Board relied on the affidavit of Matthew Troy Anstee, affirmed on 19 June 2024,[19] which exhibited a screenshot[20] of an entry from the Board’s internal database ‘AXIOM’ kept in the course of its business that indicated that People Shop Pty Ltd ceased to be an incorporated entity from 7 March 2023.[21] The accuracy of this record was not challenged or explored with Mr Anstee when he was made available for cross-examination and no evidence was led from any of the defendants that contradicted it in circumstances where, had the record been wrong, such evidence would have been expected.[22] Further, none of the defendants submitted that People Shop Pty Ltd did not cease to be an ‘incorporated legal practice’ after 7 March 2023 or that the AXIOM record was insufficient evidence to conclude that it had. For these reasons, I will proceed on the basis that People Shop Pty Ltd ceased to be an ‘incorporated legal practice’, and thus ceased to be a ‘qualified entity’, as from 7 March 2023.
[18]‘Incorporated legal practice’ is defined in s 6(1) of the Uniform Law, and contains four limbs. The requirement as to s 104 is contained in subsection (b) of that definition.
[19]The admissibility of this affidavit is discussed further at Part D.1 below.
[20]That is, a digital copy of an image originally displayed on an electronic device.
[21]The screenshot of the AXIOM database entry provided the following information: ‘Entity Status: Ceased… Date Status Applied: 19/02/2023… Date Ceased by LSB: 07/03/2023.’
[22]Cf Jones v Dunkel (1959) 101 CLR 298.
Section 447 of the Uniform Law empowers the Court to grant an injunction restraining a person from contravening the Uniform Law. The section applies only if the person has contravened, or is contravening, or is likely to contravene, the Uniform Law, but the power is otherwise expressed in wide terms. If any of the criteria are met, the Court is empowered to grant an injunction whether or not it appears that the person intends to contravene, has contravened or continues to contravene the Uniform Law, or whether or not a contravention has a likelihood of substantial damage to anyone else.[23]
C.3 The issues that arise
[23]Uniform Law s 447(4)(a)-(c).
The issues in this proceeding therefore concern whether the Board has established that:
(a) On or after 18 October 2022, Mr Ansell engaged in legal practice; and
(b) On or after 7 March 2023, Mr Kuksal and/or Ms Xu:
(i) was a director, partner, officer, employee or agent of People Shop Pty Ltd; and
(ii) represented, or did anything that stated or implied, that People Shop Pty Ltd was entitled to engage in legal practice, or is likely to do anything that states or implies that People Shop Pty Ltd was entitled to engage in legal practice;
and
(c) If so, whether it is appropriate to make any and if so what injunctions to prevent them from doing so.
D. Evidence and conduct of the trial
D.1 The Board’s affidavits and the page limit application
The directions for the filing and service of affidavits imposed a limit of 50 pages and 100 pages of exhibits. The directions allowed a party to seek leave to rely on affidavit material of greater length. The Board initially filed two affidavits. As noted above in Part C.2, one was affirmed by Mr Matthew Troy Anstee who works for the Victorian Legal Services Commissioner. It was 76 pages in total, with the exhibit bundle consisting of 69 pages. Mr Anstee’s exhibits produced:
(a) screenshots of the Board’s internal database AXIOM that indicated that People Shop Pty Ltd ceased to operate as an incorporated legal practice as of 7 March 2023, and that neither Mr Kuksal nor Ms Xu hold or have ever held practicing certificates;
(b) the documents that appointed Mr Neylon as auditor on 9 November 2021, the letter advising of his appointment dated 18 November 2021, and three audit reports by him dated 25 November 2021, 20 December 2021, and 23 March 2022;
(c) the documents that appointed Mr Rapke as manager on 20 August 2022, and a letter dated 20 April 2023 notifying of the termination of his position as manager as of 19 February 2023;
(d) screenshots from the Board’s AXIOM database that indicated that Mr Ansell had been admitted to practice but ceased to hold a practicing certificate as of 18 October 2022; and
(e) the notification to Mr Ansell dated 18 October 2022 that his practicing certificate had not been renewed.
I was and am satisfied that Mr Anstee’s affidavit contains material that is legitimately relevant to the issues that fall for consideration and is not by reason of its length oppressive. Notwithstanding its length, I will grant the Board leave to rely on it.
The Board also filed and served an affidavit affirmed by Ms Isabella Cecere, a senior associate of Corrs Chambers Westgarth, the solicitors for the Board. It was 135 pages in total including an exhibit bundle of 123 pages. Ms Cecere’s exhibits consisted of:
(a) a current and historical ASIC search of People Shop Pty Ltd;
(b) a bundle of emails sent from the email address ‘[email protected]’ or ‘[email protected]’ with signature blocks containing the text ‘Lawyer, Director’;
(c) the first pages of a number of court documents that indicate that they were prepared by Erudite Legal or People Shop Pty Ltd, and emails by which those documents were provided sent by Mr Kuksal, Mr Ansell or Ms Xu;
(d) the first pages of affidavits sworn or affirmed by Mr Ansell in which he describes himself as a lawyer;
(e) an affidavit sworn by Mr Kuksal that was witnessed by Mr Ansell; and
(f) an affidavit affirmed by Mr Ansell on 16 June 2023 that deposes to legal costs said to be payable by Mr Kuksal to People Shop Pty Ltd.
The defendants had indicated that they would or might wish to cross-examine the deponents of affidavits relied on by the Board. On 19 August 2024, the Board circulated an affidavit sworn that day by Mr Benjamin Davidson, a partner with Corrs Chambers Westgarth, the solicitors for the Board. In that affidavit, Mr Davidson explained that Ms Cecere swore the affidavit that was to be relied on at the hearing then fixed for 1 August 2024 because he had been unavailable between 16 June 2024 and 2 August 2024, but that now he, but not Ms Cecere, was available for the resumption of the trial on 20 August 2024. It exhibited the same documents that had been exhibited to Ms Cecere’s affidavit.
I was and am satisfied that Ms Cecere’s affidavit, and now Mr Davidson’s affidavit, contained material that was legitimately relevant to the issues that fall for consideration and were not by reason of their length oppressive. Notwithstanding its length, I will grant the Board leave to rely on Mr Davidson’s affidavit. I also grant the Board leave to rely on Ms Cecere’s exhibits in addition to Mr Davidson’s affidavit, because, although they were the same documents as those exhibited to Mr Davidson’s affidavit, only Ms Cecere’s exhibits included the electronic ‘metadata’.
The Board also served a second affidavit sworn by Mr Davidson on 19 August 2024. That affidavit proved service of notices to admit on each of Mr Kuksal, Mr Ansell and Ms Xu. There was no dispute that the notices to admit had been served. On 5 August 2024, Mr Ansell advised me that ‘we’ (that is, him, Mr Kuksal and Ms Xu) accepted that the notices to admit had been served, and Mr Kuksal told me that he intended to argue that the notices to admit were ineffective because this proceeding was ‘quasi-criminal’ and that, if he was wrong in that, he should then ‘have the opportunity to respond to the notice’. I am satisfied that the late service of the affidavit of service has not caused prejudice to the defendants and I will grant leave to the Board to file and to rely on it.
D.2 The progress of the trial
On 4 June 2024, I set the trial down for hearing on 1 August 2024, and ordered the Board to file and serve written submissions on or before 19 July 2024 and the defendants to file and serve written submissions on or before 26 July 2024. The Board filed a submission. The defendants did not. Accordingly, as at the time the trial commenced on 1 August 2024, the defendants had not informed the Board or the Court about what arguments they proposed to present in defence of the claim.
On 1 August 2024, the defendants sought an adjournment of the trial. Following the publishing of reasons, I made orders: [24]
[24]Victorian Legal Services Board v Kuksal (Adjournment) [2024] VSC 459.
(a) adjourning the portion of the Board’s case seeking to restrain Mr Ansell from acting without a practicing certificate to 5 August 2024;
(b) adjourning the balance of the Board’s case seeking to restrain Mr Kuksal, Mr Ansell and Ms Xu from purporting to send or issue correspondence including by email on behalf of People Shop Pty Ltd to 20 August 2024; and
(c) requiring the defendants to file submissions as to the above by 16 August 2024.
On 5 August 2024, the application against Mr Ansell was not able to be completed in part because of time taken up that day dealing with another application by the defendants for an adjournment.[25] I adjourned the further hearing of application for relief against Mr Ansell to be completed with the balance of the proceeding on 20 August 2024.
[25]See Victorian Legal Services Board v Kuksal (Judiciary Act and Charter Notices) [2024] VSC 461.
The defendants did not file a submission by 16 August 2024. The evidence was heard, and completed, on 20 and 21 August 2024. Deponents of the Board’s affidavits referred to above, Mr Anstee and Mr Davidson, were cross-examined. For the reasons described in Part D.3 below, Mr Kuksal had left Court by the time that the evidence had been completed. Ms Xu made some oral submissions that Mr Ansell adopted. On 21 August 2024 I ordered the parties to file and serve written submissions in support of any objection to the admissibility of any evidence produced by the Board, in support of any argument that the notices to admit do not or should not take effect as admissions, and addressing why the relief sought by the Board should, or should not be granted, by 28 August 2024. I ordered that any submissions in reply be filed and served by 4 September 2024. I indicated that, unless the Court indicated to the contrary, the matter would be determined on the basis of the written submissions without a further oral hearing.
The Board filed a submission on 28 August 2024 in accordance with my order. On 30 August 2024, following a request from the defendants for more time, I extended the time for the filing of submissions to 2 September 2024 and any submissions in reply to 9 September 2024. On 13 September 2024, following another request from the defendants for more time, I further extended the time for filing of submissions to 16 September 2024 and any submissions in reply to 23 September 2024. The defendants did not file any submissions. I did not indicate to the parties that there would be a further oral hearing.
D.3 The conduct of Mr Kuksal
The trial itself did not proceed in a conventional manner. Firstly, on a number of occasions Mr Kuksal left or was asked to leave following my directing him that he either stop talking and comply with my rulings or leave the court room. On the afternoon of 20 August 2024 I ruled that Mr Kuksal could not cross-examine Mr Anstee (in his capacity as deponent of one of the Board’s affidavits) on matters going only to credit generally, on the basis that the affidavits relied on by the Board were relied on for the production of documents only. Mr Kuksal did not accept or abide by that ruling. On this occasion and at other stages in the trial I directed Mr Kuksal to stop talking or to leave the court room because I formed the view that he was impeding, or attempting to impede, the orderly progress of the trial, including by way of interrupting or otherwise disrupting counsel for the Board, his co-defendants, and myself.[26] On each occasion a room was made available on Court premises where Mr Kuksal could, if he wished, participate or listen to the proceeding remotely via audiovisual link. As I understand it, Mr Kuksal elected not to use this room and did not otherwise appear remotely via the audiovisual link.
[26]See generally Civil Procedure Act 2010 (Vic) s 49.
Secondly, on the morning of 21 August 2024, which was the last day of trial, Mr Kuksal advised that the defendants had attempted to commence a proceeding in this Court against the Independent Broad-based Anti-corruption Commission (‘the IBAC’) in relation to delays or improper determination of complaints made to it by them. Mr Kuksal advised there were 26 other proposed defendants including myself, counsel appearing for the Board Mr McAuliffe, and Mr Davidson of Corrs Chambers Westgarth who was the solicitor with carriage of the matter on behalf of the Board. The Prothonotary and the deponent of one of the Board’s affidavits, Mr Anstee, were also proposed defendants. Mr Kuksal asserted that this meant that neither myself, nor Mr McAuliffe, nor Mr Davidson, could continue in this matter (unless, perhaps, I was first to determine that the proposed proceeding was an attempt to pervert the course of justice, which determination I could not make, of course, without a proper investigation into its merits). Mr Kuksal indicated that I should recuse myself, and should also preclude Mr McAuliffe and Mr Davidson from continuing. Following a brief adjournment, inquiries made by my chambers revealed that the proposed originating motion had been provided to the Registry that morning, but had not yet been accepted or rejected for filing. I indicated that I would not recuse myself in the circumstances. I stood the matter down so that Mr McAuliffe and Mr Davidson could consider their positions. When the matter resumed, Mr McAuliffe advised he and Mr Davidson could and would proceed. As the proposed originating motion was ultimately not accepted for filing I address the issue no further in these reasons.
D.4 Admissibility issues
As noted above, the Board relied on affidavits sworn by Mr Anstee and Mr Davidson. It also relied on the electronic versions of the exhibits to Ms Cecere’s affidavit: as noted above in Part D.1, Mr Davidson’s affidavit exhibited the same documents but without their original metadata.
D.4.1 Hearsay representations exhibited to the Board’s affidavit material
When the matter was called on for hearing, it became apparent that the defendants intended to object to my receiving the Board’s affidavits into evidence. In the circumstances, I accepted the Board’s affidavits but expressly subject to the defendants’ right to contend that the affidavits in their entirety or parts of them were inadmissible. I took the view that it was appropriate to proceed in that way, rather than first to hear full argument in relation to admissibility, because to do otherwise would likely have prevented the trial from being completed in the days allocated. This conclusion was influenced in part, of course, by the fact that the defendants had not reduced their submissions into writing and provided them in advance of the trial as ordered.[27] Again as noted above, notwithstanding Mr Kuksal’s strong objections orally, no such submissions were received from the defendants in writing.
[27]As noted above in Part D.2, I ordered that the parties file and serve any submissions including in relation to the admissibility of the Board’s affidavits on or before 4pm on 28 August 2024, which was then extended to 4pm on 2 September 2024, and then further extended to 4pm on 16 September 2024. The defendants contended that this was insufficient time. I disagree. They had been ordered to file submissions many weeks earlier. Presumably, they were in a position to present properly-developed oral submissions at the commencement of the hearing. There was no reason why those oral submissions could not be reduced to written form promptly.
As detailed in Part D.1 above, the Board’s affidavits essentially produced documents. I accept into evidence absolutely the correspondence that was produced in the affidavits, both to and from the defendants, including the attachments to that correspondence.
Mr Anstee also produced screenshots from the Board’s AXIOM database, recording details in relation to practising certificates, the appointment letter of Mr Neylon as auditor, and three of his audit reports. I accept into evidence absolutely the screenshots from the Board’s database and the appointment letter of Mr Neylon as auditor. The situation with Mr Neylon’s three reports is more complicated. Those reports include within them representations by Mr Neylon that:
(a) Mr Allan McGregor, who had been a solicitor with People Shop Pty Ltd, told him that he (Mr McGregor) had not been supervising the legal work performed by People Shop Pty Ltd and that, instead, Mr Kuksal and sometimes his colleague Ms Di Gregorio controlled the law practice and that he (Mr McGregor) acted in accordance with the directions of Mr Kuksal; and
(b) persons associated with People Shop Pty Ltd had not cooperated with him (Mr Neylon).
These representations are hearsay and therefore inadmissible unless an exception were to apply,[28] as the Board is seeking to rely on the representations as proof of what was occurring at People Shop Pty Ltd.
[28]Evidence Act 2008 (Vic), s 59.
D.4.2 Whether the business records exception applies to the Neylon reports
The Board submitted that the reports were nonetheless admissible as business records.[29] The hearsay rule does not apply to certain representations contained in a business record.[30] A business record is a document that is or forms part of the records belonging to or kept by a person in the course of, or for the purpose of, a business and that contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.[31] I accept that the Board’s business includes the investigation into legal practices,[32] that Mr Neylon’s reports are records of his or the Board’s business, that they are kept by the Board in the course of or for the purpose of its business, that the representations recorded in them as having been made by Mr Neylon and Mr McGregor were recorded in the document for the purpose of both Mr Neylon’s and the Board’s business, and that both Mr Neylon and Mr McGregor had or might reasonably be supposed to have had personal knowledge of the facts asserted by them.[33]
[29]Ibid s 69.
[30]Ibid s 69(2).
[31]Ibid s 69(1), cl 1 of Pt 2 of the Dictionary of the Evidence Act 2008 (Vic).
[32]Ibid cl 1 of Pt 2 of the Dictionary of the Evidence Act 2008 (Vic).
[33]Ibid s 69(2).
The exception to the hearsay rule for business records does not apply if the representations were prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, a legal proceeding.[34] The onus is probably on the defendants to establish that this is the case.[35] In any event, I am satisfied that the representations from Mr McGregor were obtained by Mr Neylon and the representations from Mr Neylon were obtained by the Board, and the representations were prepared by Mr McGregor and Mr Neylon, for the purpose of the audit of People Shop Pty Ltd and not for the purpose of conducting, or for or in contemplation of or in connection with a (civil) legal proceeding. The fact that legal proceedings were one possible outcome following the completion of the audit does not mean that the representations were obtained for the purpose of conducting or for or in contemplation of or in connection with a legal proceeding.[36]
[34]Ibid s 69(3).
[35]This is because s 69(3) creates an exception to the admissibility provided for in s 69(2) of the Evidence Act 2008 (Vic), rather than another condition of admissibility. See Hendricks v El-Dik (No 2) (2015) 303 FLR 118, 121 [17]-[20] (Mossop AsJ).
[36]See Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235, 241 [42] (Lindgren J); see also Tetra Pak Manufacturing v Challenger Life Nominees [2013] NSWSC 289, [26]-[28] (McDougall J).
Accordingly, I will accept Mr Neylon’s audit reports into evidence.
There then arises a question as to whether the evidence of the representations made by Mr McGregor to the effect that Mr Kuksal controlled the law practice should be excluded, [37] or their use limited, [38] on the grounds that they are unfairly prejudicial. I will return to this issue in Part F.1.2 below.
[37]Evidence Act 2008 (Vic), s 135.
[38]Ibid s 136.
The Board also submitted that the hearsay rule should not apply by virtue of s 64 of the Evidence Act 2008 because it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.[39] However, the Board led no evidence that it would cause undue expense, undue delay or would not be reasonably practical to call either Mr Neylon or Mr McGregor to give evidence. Accordingly, I do not accept that as a reason for which the documents are admissible.
[39]Ibid s 64.
D.5 Issues concerning the notices to admit
Rule 35.03(1) of the Supreme Court (General Civil Procedure) Rules 2015 provides that a party may serve on another party a notice stating that unless that party within a time to be expressed in the notice (which shall not be less than 14 days after service) disputes the facts specified in the notice, that party shall, for the purpose of the proceeding only, be taken to admit those facts. Rule 35.03(2) of the Supreme Court (General Civil Procedure) Rules 2015 provides that if the party served does not dispute any fact specified (by serving notice that the party disputes the fact within the time allowed), that party shall, for the purpose of the proceeding only, be taken to admit those facts. Rules 35.05(1) and (2) of the Supreme Court (General Civil Procedure) Rules 2015, in like manner, operate to allow a party to serve a notice on another party stating that unless that party disputes the authenticity of a document within the time specified, that party shall, for the purpose of the proceeding only, be taken to admit the authenticity of that document.
The Board served notices to admit on each of Mr Kuksal, Mr Ansell and Ms Xu in the prescribed form. Neither Mr Kuksal, Mr Ansell nor Ms Xu filed any notices of dispute within the time provided. Accordingly, if the Supreme Court (General Civil Procedure) Rules 2015 apply, the defendants are taken to have admitted the facts set out in the notices and the authenticity of the documents referred to in the notices.
As noted above, the defendants did not file any submissions in advance of the hearing, despite having been ordered to do so. On 5 August 2024, the defendants indicated that they wished to submit that the notices to admit procedure did not apply because this was a criminal or ‘quasi-criminal’[40] proceeding, or that they might apply for leave to withdraw their admissions. Again as noted above, on 5 August 2024 I ordered that:
Any submissions in support of any argument that the notices to admit served by the plaintiff do not or should not take effect as admissions in accordance with the Supreme Court (General Civil Procedure) Rules 2015 be filed and served on or before 4.30pm on Monday 12 August 2024.
[40]See Victorian Legal Services Board v Kuksal (Judiciary Act and Charter Notices) [2024] VSC 461 at [12]-[13]; see also Victorian Legal Services Board v Kuksal (Recusal Application) (No 2) [2023] VSC 698 at [23]-[24].
I made that order to ensure that all parties as well as the Court had appropriate time to prepare for and to consider the issue prior to the next return on 20 August 2024, and to ensure that the proceeding would not be disrupted by having to hear argument, for the first time, on that issue on that day. If neither I nor the Board were provided with any submissions in advance, the Board would presumably need time to respond to the argument, and I might need to reserve rather than ruling on it immediately. In either case, hearing such an application with no prior written submissions would likely preclude the proceeding being heard and determined on the days set down for its trial.
As noted above, the defendants did not file any submissions in accordance with the order, or at all, in relation to their argument that the notices to admit should not take effect. At the resumption of the hearing on 20 August 2024, they did not seek to lead any evidence as to why they had not complied with the orders. In the absence of a proper explanation, on oath, it seems likely that the defendants elected not to prepare something in writing in advance and to have their arguments ventilated for the first time on 20 August 2024 for their own forensic purposes. I indicated that I would not then hear an oral argument to the effect that the Supreme Court (General Civil Procedure) Rules 2015 did not apply because it would cause a further delay in the hearing. I ordered that the time within which a written submission be filed and served be extended to 4.00pm on 28 August 2024 (which as noted above was later extended to 2 September 2024 and then further extended to 16 September 2024), and indicated that:
(a) I would consider such an application on the papers;
(b) In the event that no written submissions were filed by the time provided, I would consider the point abandoned; and
(c) In the event that written submissions were filed and I formed the view either than I required oral argument or a response from the Board or that the Supreme Court (General Civil Procedure) Rules 2015 did not apply to this proceeding, I would reconvene the trial and deal with whatever issues then arose.
As noted, the defendants had also suggested, in the event that I formed the view that the Supreme Court (General Civil Procedure) Rules 2015 did apply to this proceeding, that they would then apply for leave to withdraw the admissions that flowed from their failure to file notices of dispute within time. The form of order relating to the notices to admit was deliberately cast in wide terms to require that any submissions in support of such an application also be filed and served originally by 12 August 2024 and then by 28 August 2024. As noted, the defendants did not file any submissions. They did not contend, for example, that the documents produced had not been sent, or were not what they appeared to be, or were sent by someone else rather than by them. Nor did they indicate that they could lead evidence to that effect. No proper reason was thus identified for which leave might be given to withdraw the admissions. It is difficult to see how an application to withdraw admissions could succeed in the absence of some suggestion that there was doubt in the correctness of the admissions that were made.
Ms Xu identified some arguments orally before I ordered that submissions be put in writing. She submitted, referring to the Charter of Human Rights and Responsibilities Act 2006 (Vic), that ord 35 of the Supreme Court (General Civil Procedure) Rules 2015 could not apply to a criminal proceeding because a party could not be made to ‘admit’ that they have committed a criminal offence. This submission is, with respect, misconceived. This proceeding is not a criminal proceeding. It is brought by originating motion pursuant to the power in s 447 of the Uniform Law to apply to the Court for an injunction. The standard of proof required is the balance of probabilities. The Board is not seeking penalties. The fact that the Board is a regulatory body that may also bring proceedings for penalties does not mean that every proceeding it brings is a criminal proceeding.[41] Further, any admission that flows from a failure to dispute a notice to admit cannot be used against the party in any other proceeding, so any admission in this proceeding cannot be used as an admission for the purpose of any later criminal proceeding. This is made explicit in the rules that apply to the notices to admit themselves. Rule 35.03(2) of the Supreme Court (General Civil Procedure) Rules 2015 states as follows:
(2) If the party served with the notice does not dispute any fact specified by serving notice that that party disputes the fact within the time allowed for that purpose, that party shall, for the purpose of the proceeding only, be taken to admit that fact. (emphasis added)[42]
[41]Cf Commonwealth v Fair Work Building Industry Inspectorate 258 CLR 482, 505 (French CJ, Kiefel, Bell, Nettle and Gordon JJ). Also, I note that in most industrial accident cases, an injured worker will allege that their employer has breached regulations for workplace safety the breach of which might also be the subject of criminal charges. So far as I am aware, it has never been suggested that because the worker seeks to establish that the employer breached those regulations, the proceeding is anything other than an ordinary, civil proceeding.
[42]Rule 35.05(2) of the Supreme Court (General Civil Procedure) Rules 2015 similarly limits admissions as to authenticity of documents ‘for the purpose of the proceeding only’.
I conclude that the Supreme Court (General Civil Procedure) Rules 2015 apply to this proceeding and that the admissions stand.[43]
D.6 Comments regarding the lack of material from any of the defendants
[43]I make this conclusion noting that the issue is somewhat moot, because the documents annexed to the notices to admit are documents exhibited to Ms Cecere’s and Mr Davidson’s affidavits, and were served on the defendants a number of weeks earlier.
As Parts D.2, D.4 and D.5 above make clear, the defendants did not file any affidavit material or submissions on any of the above issues that arose.
On occasion the defendants presented or sought to present complicated arguments orally without having given notice of those arguments by the filing of a written submission. As examples, the defendants, without having provided a written submission:
(a) sought to contend that the proceeding should not or could not proceed, by reason of various statutory provisions and constitution principles, until the Attorney-General and the Victorian Equal Opportunity and Human Rights Commissioner were added as parties;[44]
[44]See Victorian Legal Services Board v Kuksal (Adjournment) [2024] VSC 459, [25], [32].
(b) repeatedly applied for my recusal on various grounds including that I was engaging in ‘criminal conduct’ and was ‘corrupt’;[45]
[45]See Part B. See also generally Kuksal v Victorian Legal Services Board (Recusal, Summons and Subpoena) [2024] VSC 508 at footnote 4.
(c) applied repeatedly for adjournments without notice (see Part D.2), including on the grounds that, among other things, they wished to commence a proceeding against the IBAC and myself and contended that I and others were ‘disqualified’ from any ongoing involvement (as detailed above in Part D.3);
(d) sought to challenge the admissibility of the Neylon reports (see D.4.1 above);
(e) sought to contend that the notices to admit were ineffective (as detailed above in Part D.5); and
(f) sought to argue that the Board’s actions were invalid because it had not received a ‘complaint’ and ‘without a complaint, [it] cannot act on any manner’.
Where I formed the view that hearing these arguments orally and in the absence of a prior written submission giving notice of the arguments would hinder the orderly hearing of the trial, because determining them would require an adjournment so that the Board could provide a considered response or I could provide a considered ruling, I ordered that any such submission be put in writing.
The defendants are entitled, of course, not to file any affidavit material: their failure to do so simply means that they do not lead evidence themselves. However, their failure to file written submissions in accordance with the orders made, particularly without any explanation and the multiple extensions to due dates, is entirely unsatisfactory. That said, in these reasons, I have endeavoured to deal with the issues of substance that seemed to emerge in the running of the trial.
E. The case against Mr Ansell
E.1 Should Mr Ansell be treated as if he still has a practising certificate?
The defendants contend that the Board’s decision to refuse the renewal of Mr Ansell’s practising certificate was unlawful because, among other things, it was effected for an improper purpose as part of a conspiracy to cause them harm. They submit that, by reason of this, Mr Ansell remains able to engage in legal practice in the expectation that he will, in due course, be able to establish that the refusal to renew his practicing certificate was void. I reject this submission as untenable. Mr Ansell has not had a practising certificate since 18 October 2022 and so he has not been able lawfully to engage in legal practice. The fact that it might later be established that he was wrongly denied a practicing certificate does not alter that present fact, or mean that he remains able to engage in legal practice in the meantime. The regulation of the profession would be impossible if it were otherwise.[46]
[46]See also my comments to the same effect in Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291, [24].
It follows from the above that this proceeding is concerned, and concerned only, with the conduct of Mr Kuksal, Mr Ansell and Ms Xu, in the context of their being persons who do not have practicing certificates.
E.2 Has Mr Ansell contravened the Uniform Law?
A person engages in legal practice if they practice law or provide legal services.[47] This will be the case if they perform tasks that may only be performed by a legal practitioner, or perform tasks that are usually performed by a legal practitioner and do so in such a way as to justify the reasonable inference that the person doing it is a legal practitioner.[48]
[47]Uniform Law s 6(1).
[48]In re Sanderson; Ex parte Law Institute of Victoria [1927] VLR 394, 397-8; Cornall v Nagle [1995] 2 VR 188, 210; Law Institute of Victoria v Maric (2008) 21 VR 1, 7-8 [23]-[24]; Victorian Legal Services Board v Jensen [2018] VSC 740, [38]-[43].
For the reasons that follow, I am satisfied on the balance of probabilities that Mr Ansell has contravened s 10 of the Uniform Law by engaging in legal practice after 18 October 2022 and has contravened s 11 of the Uniform Law by representing after 7 March 2023 that People Shop Pty Ltd is entitled to engage in legal practice.
On 16 June 2023 Mr Ansell affirmed an affidavit in a proceeding brought against Mr Kuksal in the Magistrates’ Court of Victoria. Mr Ansell was not himself a party to that proceeding. In that affidavit, Mr Ansell described himself as ‘Peter Hartley Ansell ... lawyer’. The affidavit was expressed (between the ‘tramlines’)[49] to have been prepared by ‘Peter Ansell’ and to have been filed on behalf of ‘The Defendant’ (that is, Mr Kuksal).
[49]That is, the header section on the first page of a legal document describing how the document was prepared.
Further, it emerges from the affidavit that Mr Kuksal had obtained a costs order in his favour in that proceeding, and the affidavit was expressed to be ‘in support of Mr Kuksal’s application to fix the quantum of costs for legal fees apparently paid by Mr Kuksal to People Shop Pty Ltd. In the affidavit, Mr Ansell swore that he was the sole director of People Shop Pty Ltd, that People Shop Pty Ltd was representing Mr Kuksal and ‘his related entities’, and that the work it was doing included ‘the preparation of affidavits and submissions, legal research, the collation of evidentiary documents, the generation of transcripts, communication with the Court and the opposing party as well as the provision of other administrative assistance.’ The affidavit exhibited two bills of costs that People Shop Pty Ltd had (Mr Ansell swore) provided to Mr Kuksal. One bill of costs, dated 15 June 2023, was itemised and indicated that work was performed by a person identified as ‘PA’, which is Peter Ansell, on various dates in May and June 2023, and charged for that work at a rate of $450 per hour. [50] The descriptions of the work performed are typical of the type of work performed by lawyers, such as ‘drafting correspondence’, ‘perusal of correspondence’, conferring with people, ‘legal research’ and ‘drafting submissions’. The costs claimed came to $18,325, of which all but $550 was performed by ‘PA’. The bill of costs was signed by Mr Ansell over a signature block that described him as ‘Lawyer’ as well as a director of People Shop Pty Ltd. It was emailed to Victoria Police by Mr Ansell on 24 May 2024 from the email address ‘[email protected]’. The signature block identified Mr Ansell as ‘Lawyer, Director’ and the email commenced with the following statement:
We write to you in relation to the costs orders made by Magistrate Bourke against you in the aforementioned proceeding. Please find attached a copy of our invoice in relation to Mr Kuksal’s representation in the matter and a document consolidating all the orders made in the proceeding.
[50]The bill of costs itself confirmed at the beginning, were there any doubt, that those initials referred to Mr Ansell.
This evidence is, in my view, overwhelming, and compels a conclusion that Mr Ansell has contravened the Uniform Law by engaging in legal practice at a time when he did not have a practicing certificate and has also represented that People Shop Pty Ltd is entitled to engage in legal practice. I observe that Mr Ansell’s doing so is consistent with his submission, referred to in Part E.1 above, that he is entitled to do so.
The point is worth emphasising: the evidence establishes that at a time when neither Mr Ansell nor People Shop Pty Ltd was entitled to engage in legal practice, Mr Ansell and Mr Kuksal sought to recover from another party to litigation a lump sum representing Mr Kuksal’s costs of having legal services provided to him by Mr Ansell and People Shop Pty.
Further, Mr Ansell has sent numerous emails with the signature block below:
I am also satisfied that by describing himself as lawyer and director, above the email address of ‘[email protected]’ and the Erudite Legal livery, Mr Ansell represented to all who received those communications not only that he was entitled to engage in legal practice, but so too was Erudite Legal. This is the case even when those communications are in relation to legal proceedings where Mr Ansell is a party.
Finally, the evidence establishes that on 26 May 2024 Mr Ansell witnessed the swearing of an affidavit by Mr Kuksal, and applied to that affidavit under his signature the following words:
Lawyer, 5 Clare Street, Geelong
An Australian lawyer within the meaning of the term stipulated in Part 1-Definitions of the Schedule-Oaths and Affirmations to the Evidence Act 1995 (Cth).
By witnessing (or purporting to witness) an affidavit, Mr Ansell engaged in legal practice.[51] By both witnessing (or purporting to witness) that affidavit and attaching those words, Mr Ansell represented that he was entitled to engage in legal practice.
E.3 Should an injunction be made against Mr Ansell?
[51]Section 19 of the Oaths and Affirmations Act 2018 (Vic) lists the categories of people who are authorised to take an affidavit. The list includes an ‘Australian legal practitioner’ but does not include an ‘Australian lawyer’.
Mr Ansell has demonstrated a belief in an entitlement and a preparedness to engage in legal practice notwithstanding the fact that the Board did not renew his practising certificate and he was aware of that fact. It is clear that an injunction is required. Without his facing the risk of being in contempt of Court, there is an unacceptable risk that he will continue to engage in legal practice without a practising certificate.
I will make an order that Mr Ansell not engage in legal practice whilst he does not hold a practising certificate.
F. The case against Mr Kuksal
F.1 Was Mr Kuksal in contravention of the Uniform Law?
F.1.1 Did Mr Kuksal represent that People Shop Pty Ltd was entitled to engage in legal practice?
Care must be taken when assessing Mr Kuksal’s (and Ms Xu’s) conduct to bear in mind that parties to a proceeding are entitled to act for themselves and in that sense to engage in legal work on their own behalf. Parties acting for themselves are required to prepare legal documents, swear affidavits, and to communicate with the Court and opposing parties – and doing so does not amount to engaging in legal practice. Equally, experience shows that it is commonplace where there are unrepresented parties with a common interest, such as a married couple, for one of those parties to prepare documents on behalf of both parties. Although this might, strictly, be in contravention of the Uniform Law, it is not conduct that, in ordinary circumstances, would justify injunctive relief.
The situation here, however, is more complicated. Mr Kuksal has always been either the ultimate beneficial owner or sole shareholder in People Shop Pty Ltd.[52] It follows that he has had the power to appoint and to remove directors. In that context, it is significant that Mr Kuksal has regularly relied on legal documents, prepared after 7 March 2023, that state in their ‘tramlines’ that they are ‘prepared by’ either People Shop Pty Ltd or Erudite Legal. On at least one occasion, he circulated such a document himself. On other occasions, such documents were circulated by others but were expressed, both in covering emails and on their face, to also be on his behalf.
[52]As noted above, People Shop Pty Ltd was a legal practice with the business name Erudite Legal, and has also been known to trade with the business name New Edge Law, but ceased to be a ‘qualified entity’ after 7 March 2023.
In the absence of any evidence to the contrary, I infer that Mr Kuksal was aware of and agreed to these documents and communications. It follows, then, that he consciously relied on legal documents that purported to have been prepared by People Shop Pty Ltd, or Erudite Legal, as if it were entitled to engage in legal practice, at a time when it was not entitled to engage in legal practice. By relying on documents in that form, Mr Kuksal was representing, or implying to others, that People Shop Pty Ltd was entitled to engage in legal practice.
Moreover, the affidavit material prepared by Mr Ansell referred to in paras 53 - 54 above indicates that Mr Kuksal was seeking, through Mr Ansell, reimbursement of legal costs from Victorian Police that had been, it was said, charged to Mr Kuksal by People Shop Pty Ltd. The bill of costs indicates that Mr Ansell, on behalf of People Shop Pty Ltd, was taking instructions from Mr Kuksal and preparing documents for him. The affidavit material prepared by Mr Ansell in support of the request that a sum be paid indicates that it was filed on behalf of Mr Kuksal. The correspondence from Mr Ansell (sent from the email address ‘[email protected]’) asserting the right to reimbursement of legal expenses was copied to Mr Kuksal. In the absence of any evidence to the contrary, I infer that Mr Kuksal was aware of the content of the affidavits filed on his behalf and of the communications and demands made on his behalf and either authorised or adopted them. The documents and communications necessarily implied that People Shop Pty Ltd was entitled to engage in legal practice. By allowing or authorising these documents to be prepared and by relying on them, Mr Kuksal was implying that People Shop Pty Ltd was entitled to engage in legal practice.
F.1.2 Was Mr Kuksal a director, partner, officer, employee or agent of People Shop Pty Ltd?
Mr Kuksal was the ultimate beneficial owner of People Shop Pty Ltd and is now its only shareholder. It follows that he has always been in a position to control People Shop Pty Ltd in the sense that he has always been in a position to appoint or to remove its directors. Section 11(2) of the Uniform law only applies, however, to a ‘director, partner, officer, employee or agent of an entity’. Perhaps surprisingly, it does not apply to an owner.
The Board submitted that Mr Kuksal is and has been a 'shadow director' of People Shop Pty Ltd. Typically, the management of a company will be vested in its directors. I am prepared to accept that the use of the words ‘director’ of ‘officer’ in s 11 of the Uniform Law includes the concept of a shadow or ‘de facto’ director – that is, someone who controls a company as if they were a director even though they have not formally been so appointed.[53] Interpreting s 11(2) of the Uniform Law so that it applies any person who is in effective control of the day to day operations of a company would further the purpose of that provision.
[53]Cf Corporations Act 2001 (Cth), s 9AC(1)(b)(ii).
In order to make good its contention that Mr Kuksal was a person on whose instructions or wishes the other directors were accustomed to act, the Board relied on:
(a) what, according to Mr Neylon’s reports, Mr McGregor told him about the role that Mr Kuksal played in the law practice; and
(b) the metadata associated with the two invoices from People Shop Pty Ltd to Mr Kuksal referred to in para 54 above. That metadata indicates that Mr Ansell’s signature was electronically applied, via the Adobe Acrobat program, to those invoices on 15 June 2023 and 16 June 2023 by an ‘author’ with the name ‘Shivesh K’.
I accept, in the absence of any evidence or submission to the contrary, that Mr Kuksal applied Mr Ansell’s signatures to those invoices. The circumstances in which Mr Kuksal came to place Mr Ansell’s signature on those invoices was unexplained. Mr Kuksal’s doing so is consistent with Mr Kuksal playing a controlling role in the management of People Shop Pty Ltd, but does not of itself establish that fact. I do not consider that this is sufficient evidence from which to conclude that Mr Kuksal was a shadow director of People Shop Pty Ltd or was otherwise in the day to day control of its operations.
It is necessary, therefore, to return to the question referred to in Part D.4 above as to whether the representations made by Mr McGregor to Mr Neylon should be excluded, or their use limited. Otherwise admissible evidence may be excluded under s 135 of the Evidence Act 2008 on the grounds that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial, or limited in the use that may be made of it under s 136 of the Evidence Act 2008 on the grounds that there is a danger that a particular use may be unfairly prejudicial.
Mr Neylon records Mr McGregor stating that:
(a) The law practice was controlled by Mr Kuksal who creates ‘all of the documents and runs the operations with the assistance of Ms Xu and a few other staff’;
(b) He (Mr McGregor) had not been supervising the work of the practice but instead had ‘acted in accordance with the direction of’ Mr Kuksal; and
(c) He was often ‘bored to death’ while he waited for Mr Kuksal to produce documents for him to sign or swear.
That evidence is highly probative. It goes directly to the question, now to be determined, as to whether Mr Kuksal was in effective charge of People Shop Pty Ltd and thus potentially subject to s 11(2) of the Uniform Law if, as I have found, he represented that People Shop Pty Ltd was able to engage in legal practice. I accept, however, that the admission of this evidence creates some potential prejudice to Mr Kuksal. In order to engage in the evaluative processes required by ss 135 and 136 of the Evidence Act 2008, the nature and extent of that prejudice must be examined. The prejudice with which these sections are concerned is not prejudice that flows simply from the admission of evidence that is harmful to that other party’s case. The prejudice with which these sections are concerned is instead prejudice associated with any inability of the other party adequately to meet that evidence or any prejudice associated with that party having to meet that evidence.
In this case, the representations made by Mr McGregor are representations of conduct on the part of Mr Kuksal himself. They relate to matters that are within Mr Kuksal’s personal knowledge. The prejudice to Mr Kuksal arising from his inability to cross-examine Mr McGregor is ameliorated, at least to a considerable extent, by Mr Kuksal’s ability, had he wished to avail himself of it, to lead evidence from himself that contradicted it. Evidence could also have been led from, at least, Ms Xu. Ordinarily, sworn evidence by a witness available to be cross-examined would be preferred to unsworn representations by a person not available to be cross-examined. Thus, if Mr Kuksal gave evidence disputing what Mr McGregor had said, then unless his credit were destroyed, it would be expected that Mr Kuksal’s evidence would be preferred. Put another way, the hearsay representations contained in the report were not likely to be sufficient to make the case against Mr Kuksal unless Mr Kuksal chose not to contradict them in circumstances where, if the representations were untrue, Mr Kuksal would have been in a good position to lead contradictory evidence.
Accordingly, the real prejudice that Mr Kuksal suffers from the admission of Mr McGregor’s representations is that it creates a situation where Mr Kuksal, if he wishes to dispute those representations, is, in practice, required to lead evidence that contradicts them from himself or perhaps Ms Xu. In that context, it is relevant that this is a civil proceeding,[54] and not a criminal proceeding where there is a strong public interest in protecting a party’s right not to have to give evidence in his or her own cause.
[54]See Part D.5 above.
In circumstances where Mr Kuksal has at all times been the sole owner of People Shop Pty Ltd and I have found that he has wrongly, and deliberately, represented that People Shop Pty Ltd was entitled to engage in legal practice when it was not. I consider the probative value of Mr McGregor’s representations is not substantially outweighed by the prejudice they cause Mr Kuksal.[55] If the representations were wrong or Mr Kuksal wished to dispute them, he would or should have had evidence readily available to him to do so. For the same reasons, I do not consider that there is a danger that the potential use of Mr McGregor’s representations to establish the role that Mr Kuksal played would be unfairly prejudicial to Mr Kuksal. Accordingly, I will not exclude those representations under s 135 of the Evidence Act 2008 or limit the use to which they may be put under s 136 of the Evidence Act 2008.
[55]Evidence Act 2008 (Vic), s 135.
In circumstances where the representations in Mr Neylon’s report are admissible and were not contradicted, I conclude that Mr Kuksal managed the day to day affairs of People Shop Pty Ltd, and exerted control over its operations and staff.[56] For this reason, I conclude that Mr Kuksal was a shadow or ‘de facto’ director of People Shop Pty Ltd and thus potentially subject to s 11(2) of the Uniform Law.[57]
F.2 Lay associates
[56]Mr Neylon expressed a number of opinions in relation Mr Kuksal’s conduct, particularly regarding the treatment of Mr McGregor. I have had regard to the factual representations recorded as having been made by Mr McGregor, but not to Mr Neylon’s opinions.
[57]In any event, it appeared that Mr Kuksal, in submitting that he and Ms Xu were ‘lay associates’ (see Part F.2 below) agreed he was a director, partner, officer, employee or agent of People Shop Pty Ltd.
Mr Kuksal suggested at one stage during the trial that he and Ms Xu were protected by s 14 of the Uniform Law as they were ‘lay people employed by’ People Shop Pty Ltd. This was later clarified to be a reference to s 13 of the Uniform Law, which provides as follows:
13 Protection of lay associates
A lay associate of a law practice does not contravene a provision of this Law or the Uniform Rules merely because of any of the following—
(a) he or she receives any fee, gain or reward for business of the law practice that is the business of an Australian legal practitioner;
(b) he or she holds out, advertises or represents himself or herself as a lay associate of the law practice where its business includes the provision of legal services;
(c) he or she shares with any other person the receipts, revenue or other income of the law practice where its business is the business of an Australian legal practitioner—
unless the provision expressly applies to lay associates of law practices.[58]
[58]See definitions of ‘lay associate’ and ‘associate’ at Uniform Law s 6(1).
For the reasons set out above, I accept Mr Kuksal’s implicit submission that he is a ‘lay associate’ of People Shop Pty Ltd, because he is a ‘partner, director, officer, employee or agent of the law practice’[59] but is not an Australian legal practitioner.[60]
[59]Being the relevant part of the definition of ‘associates’ in s 6(1) of the Uniform Law.
[60]See the definition of ‘lay associate’ in s 6(1) of the Uniform Law.
Only s 13(b) is potentially relevant. That section does not assist Mr Kuksal (or Ms Xu) because the alleged contravening conduct is not their merely holding themselves out or representing themselves as lay associates.
F.3 Should an injunction be made against Mr Kuksal?
As with Mr Ansell, Mr Kuksal has expressed a strong view that because he intends or expects the Board’s decision not to renew Mr Ansell’s practising certificate to be quashed, Mr Ansell remains able to engage in legal practice. Representations that Mr Ansell was entitled to engage in legal practice would not result in a contravention of s 11 of the Uniform Law, as Mr Kuksal is not a ‘director, partner, officer, employee or agent’ of Mr Ansell.[61] However Mr Kuksal also believes that, again because he intends or expects the decision not to renew Mr Ansell’s practicing certificate will be quashed in due course, People Shop Pty Ltd similarly remains able to engage in legal practice. As discussed in Part C.2, representations made to that effect after 7 March 2023 would be in contravention of the Uniform Law.
[61]Uniform Law s 11(2).
I am satisfied that, unless restrained by a court order, there is an unacceptable risk that Mr Kuksal will continue to imply that People Shop Pty Ltd is entitled to engage in legal practice. I will make an order that restrains him from doing so.
G. The case against Ms Xu
G.1 Was Ms Xu in contravention of the Uniform Law?
Ms Xu is a former director of People Shop Pty Ltd and its current company secretary. On 22 November 2023, Ms Xu emailed to the Court and to the parties a set of submissions made on behalf of the defendants in this proceeding. The document stated, in the ‘tramlines’, that it was prepared by ‘Erudite Legal’, which was, as noted above, a name in which People Shop Pty Ltd operated its legal business. On 29 February2024, Ms Xu emailed the Court with draft subpoenas in a related proceeding bought in this Court, S ECI 2022 04028, by Mr Kuksal, herself, People Shop Pty Ltd and Mr Ansell against the Board.[62] The draft subpoenas stated, in the ‘tramlines’, that they had been prepared by Erudite Legal. On 4 June 2024, Ms Xu affirmed an affidavit in this proceeding in support of an application for my recusal. The 4 June 2024 affidavit stated, in the ‘tramlines’, that it had been prepared by People Shop Pty Ltd.
[62]One plaintiff in that proceeding, Ms Maria Di Gregorio, has discontinued her claim. There is otherwise an issue about whether People Shop Pty Ltd was able validly to commence proceeding S ECI 2022 04028 in circumstances where it was unable to engage in legal practice and had not engaged a solicitor to act on its behalf.
Prior to the interim injunction being ordered on 21 October 2022, Ms Xu sent emails from the email address ‘[email protected]’. Since 21 October 2022, Ms Xu has not sent emails from that address.
However, by preparing the submissions, the 4 June 2024 affidavit and draft subpoenas, People Shop Pty Ltd engaged in legal practice. By swearing and relying on the affidavit said to have been prepared by People Shop Pty Ltd, and by forwarding and relying on the submissions and by forwarding to the Court subpoenas said to have been prepared by Erudite Legal, Ms Xu, as a director or secretary of People Shop Pty Ltd, represented that People Shop Pty Ltd was entitled to engage in legal practice at a time when it was not entitled to engage in legal practice and, more importantly, at a time when it was not a ‘qualified entity’. In that way, similarly to Mr Kuksal, Ms Xu has, on the balance of probabilities, breached s 11(2) of the Uniform Law.
G.2 Should an injunction be made against Ms Xu?
As with Mr Ansell and Mr Kuksal, Ms Xu has engaged in the above conduct knowing full well that the Board had not renewed Mr Ansell’s practising certificate and thus at a time when she well knew that People Shop Pty Ltd did not have an ‘authorised principal’ and so was unable to engage in legal practice. For the same reasons as the above analysis concerning Mr Kuksal, I consider s 13 of the Uniform Law has no application to Ms Xu’s conduct in this respect. She, too, by adopting the oral submissions of Mr Kuksal, took the position that because she expected or hoped to establish in due course that the Board acted wrongfully in failing to renew Mr Ansell’s practising certificate, People Shop Pty Ltd could continue to engage in legal practice in the meantime. That position is wrong. I am satisfied that unless ordered not to do so, Ms Xu will continue to have legal documents prepared by People Shop Pty Ltd or to rely on such documents notwithstanding that People Shop Pty Ltd is not presently entitled to engage in legal practice and is no longer a ‘qualified entity’. Accordingly, I will make an order enjoining Ms Xu from drawing or distributing documents of a legal character (including but not limited to pleadings, affidavits and submissions) on behalf of People Shop Pty Ltd or Erudite Legal.
H. What form should the injunctions take?
The Board seeks orders that prevent the defendants from sending emails from the email domain ‘@eruditelegal.com.au’. Erudite Legal is not entitled to engage in legal practice. The sending of emails with the ‘@eruditelegal.com.au’ domain is likely to convey that there is a functioning law firm of that name. The defendants ought not to send emails from that domain.
An interim injunction preventing Mr Kuksal and Ms Xu from sending emails from the ‘@eruditelegal.com.au’ domain name was made on 21 October 2022. There is no suggestion that they have since breached that injunction. Ms Xu submitted that for this reason, no such injunction is now required. I am not persuaded by that submission. The defendants are all of the view that the Board’s refusal to renew Mr Ansell’s practising certificate was unlawful and so People Shop Pty Ltd and Mr Ansell remain entitled to engage in legal practice. Mr Ansell, who was not restrained by the interim injunction, has continued to use that domain name. In those circumstances, I consider that there is a risk that, if there is no Court order restraining them from doing so, each of the defendants will recommence using such email addresses. There is no compelling interest identified against making final orders in similar terms to the interim orders, and I propose to do so.
In addition to the prohibition against the use of certain email addresses, I will enjoin the defendants from sending correspondence or engaging in other behaviour that implies that People Shop Pty Ltd, or Erudite Legal, or New Edge Law, is entitled to engage in legal practice.
The Board seeks a further injunction against Mr Ansell restraining him, while he does not hold a practising certificate, from engaging in legal practice. I will make such an order.
Finally, some provision should be made in the event that, in the future, People Shop Pty Ltd resumes an ability to engage in legal practice. Were that to happen, it may be that the injunctions would need to be lifted.
I. Disposition.
I will make the following orders:
1. Pursuant to section 447(3) of Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Uniform Law), the First, Second and Fourth Defendants be restrained from:
(a) sending emails from the email domain “@eruditelegal.com.au”;
(b) sending or issuing correspondence purporting to be sent by or on behalf of the law practice (or agents of the law practice), previously conducted by People Shop Pty Ltd trading as “Erudite Legal” or “New Edge Law” (Law Practice);
(c) sending or issuing correspondence which uses or contains the livery of the Law Practice;
(d) representing that they are undertaking or managing the affairs of the Law Practice; and
(e) drawing and/or distributing documents of a legal character (including, but not limited to, pleadings, affidavits and submissions) on behalf of the Law Practice.
2. Pursuant to section 447(3) of the Uniform Law, the Second Defendant be restrained from the following whilst he does not hold an Australian practicing certificate within the meaning of the Uniform Law:
(a) engaging in legal practice, including but not limited to doing any of the following:
(i) accepting briefs to appear or provide legal advice;
(ii) appearing in court on behalf of litigants to proceedings (other than himself);
(iii) providing legal advice in connection with disputes, proceedings or potential proceedings;
(iv) corresponding or communicating on behalf of litigants or potential litigants (other than himself);
(v) drawing or assisting in the preparation of documents for or on behalf of potential litigants (other than himself); and
(b) representing, or doing anything that states or implies, that he is entitled to engage in legal practice.
PENAL NOTICE TO THE DEFENDANTS
3. If the first, second or fourth defendant disobey orders 1 or 2 by doing any act the Court requires them to abstain from doing, that defendant or those defendants may be made liable to punishment which includes punishment by imprisonment for contempt of court.
4. There be liberty to apply to set aside these injunctions in the event that People Shop Pty Ltd regains a right to engage in legal practice.
I will hear the parties on the question of costs, including whether any application for costs should be determined on the papers.
SCHEDULE OF PARTIES
S ECI 2022 03994
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| -and- | |
| SHIVESH KUKSAL | First Defendant |
| PETER ANSELL | Second Defendant |
| MARIA DI GREGORIO | Third Defendant |
| LULU XU | Fourth Defendant |
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