Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay)

[2024] VSC 367

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:	On the papers
DATE OF RULING:	26 June 2024 (Second Revision 27 June 2024)
CASE MAY BE CITED AS:	Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay)
MEDIUM NEUTRAL CITATION:	[2024] VSC 367

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PRACTICE AND PROCEDURE – Applications for recusal for actual bias, a protective costs order and stay of the proceeding – Where directions made for the filing of affidavits and a written submission – Where Court indicated that applications may be decided on the papers and may be dismissed if material not filed as directed – Where material in support of applications not filed by the time required – Applications dismissed on the papers.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N/A	Corrs Chambers Westgarth
For the First Defendant	N/A	N/A
For the Second Defendant	N/A	N/A
For the Third Defendant	N/A	N/A
For the Fourth Defendant	N/A	N/A

HIS HONOUR:

1. By an amended originating motion filed on 23 February 2024, the Victorian Legal Services Board (‘the Board’) seeks injunctive relief against Mr Shivesh Kuksal, Mr Peter Ansell and Ms Xu, the first, second and fourth defendants.  The Board has discontinued its claim against Ms Di Gregorio, the third defendant.[1]  When I hereafter refer to the defendants, I am referring to Mr Kuksal, Mr Ansell and Ms Xu.  The proceeding is listed for hearing on 1 August 2024. 

   [1]See Victorian Legal Services Board v Kuksal (Costs and Amendment Application) [2024] VSC 48, [2].

1. Prior to a mention hearing in this proceeding on 4 June 2024, the defendants circulated a proposed summons dated 16 May 2024 that sought, or would seek, orders that I recuse myself, a protective costs order, and a stay of the proceeding pending the determination of another proceeding brought by the defendants as plaintiffs against the Board and other defendants. 

1. At the mention hearing on 4 June 2024, the defendants, among other things, made an oral application that I recuse myself for apprehended bias.  They indicated that they wished also to apply for an order that I recuse myself for actual bias, for a protective costs order, and for a stay of the proceeding.  I dismissed the application for an order that I recuse myself for apprehended bias and published reasons.[2]  I did not require the defendants formally to file their proposed summons.[3]  I instead made orders on 4 June 2024 directing the defendants to file and serve, on or before 4.00pm on 14 June 2024, any affidavits and a written submission in support of each of these applications.  In the ‘Other Matters’ section of those orders, I stated:

D.  The Court will decide whether to determine the actual bias recusal application and/or the application for a protective costs order and/or the application for a stay on the papers or to have an oral hearing.

E.   If submissions in support of applications are not filed in accordance with the directions made, the Court may determine, including by dismissing, the applications on the basis that the material in support has not been filed.[4]

[2]Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291.

[3]Ibid [29], [31].

[4]See also Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291, [37].

1. On 26 June 2024, the defendants had not filed any submissions in support of their applications.  My chambers informed the parties that I would be publishing a ruling and making orders after 2:00pm that day.  At 1:56pm, Mr Ansell circulated an email to my chambers and the other parties that attached a 12-page letter, dated 26 June 2024, addressed to my chambers that was signed by Mr Kuksal and expressed to be sent also on behalf of Mr Ansell and Ms Xu.  The email set out various allegations relating to my handling of this matter and included a Dropbox link to a number of documents and recordings said to accompany the letter.  The letter confirms that the recusal application is made on the grounds of actual bias.  At 2:01pm, Ms Xu circulated an email asking for various things to be done in the event that I did not recuse myself.  I delayed handing down my decision until I had reviewed the email correspondence.

1. Emailing a letter to a judge’s chambers is not filing a submission.  Emailing a Dropbox link to a judge’s chambers is not filing an affidavit.  Further, Mr Kuksal’s letter does not explain why it was that the defendants failed to comply with the direction for the filing and service of material by 14 June 2024.  The situation remains that the defendants have not filed any material, or at least any submissions, in support of their three interlocutory applications by the time required.  That is sufficient reason to dismiss their applications on the papers.   

1. I have, however, considered Mr Kuksal’s letter.  He contends that Victoria Police and the Board conspired to cause him harm, that the Board maliciously abused its authority, and that various people have acted fraudulently.  More relevantly to the contention that I should recuse myself for actual bias, the letter contends that I have (among other things): ‘remained unaffected by flagrant violations of the law’; ‘unlawfully’ aided the Board and others in denying the defendants ‘due process’; ‘condemned Mr Ansell to be effectively convicted of a criminal offence’;  unlawfully stayed another proceeding; refused to permit the issue of subpoenas; failed to investigate (or have others investigate) whether Mr Kuksal’s complaint to the Independent Broad-based Anti-corruption Commission (‘IBAC’) was made in bad faith; ‘repeatedly engaged in (ostensibly dishonest) misrepresentations in relation to multiple matters’; and that this has, at least in part, been done by me in retaliation for their making a complaint about me to the IBAC.  He also contended, in a subsequent email sent to my chambers at 2:49pm, that I had ‘improperly considered’ an affidavit sworn by an ex-employee of a company associated with Mr Kuksal.

1. The letter does not assert any conflict of the type that would often underlie an allegation of actual bias, such as that I have a personal interest in the outcome of the proceeding or a personal connection with one of the parties.  Rather, the defendants contend, as I understand it, that my conduct is such that actual bias may be inferred as the likely or only explanation for that conduct.  In this way, the application of actual bias largely overlaps with the (already dismissed) application for ostensible bias.

1. Be that as it may, I reject the defendants’ submission that my conduct is such as might justify an inference of actual bias.  I do not accept the defendants’ characterisation of my conduct or the decisions that I have made.  In my view, the fair-minded lay observer would have no reason to doubt that I am able to bring an impartial and unprejudiced mind to the issues that will arise in this proceeding.

1. There is nothing in the additional complaint based on my having had regard to an affidavit sworn by the ex-employee when Mr Kuksal’s position was that the affidavit should not have been considered.  Even if that is the true position, that would not lead to a conclusion of actual bias.

1. The defendants have not filed submissions in support of their other applications.  In the circumstances, I will, now, on the papers, dismiss the defendants’ applications:

(a)        for an order that I recuse myself for actual bias;

(b)       for a protective costs order; and

(c)        for a stay of the proceeding.

1. It seems unlikely that the plaintiff has incurred any costs associated with the applications that I have dismissed.  I will, however, reserve the question of costs in case it has and wishes to apply for them.

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