Victorian Legal Services Board v Kuksal (Adjournment)
[2024] VSC 459
•2 August 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 August 2024 |
DATE OF RULING: | 2 August 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Kuksal (Adjournment) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 459 |
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PRACTICE AND PROCEDURE – Application to adjourn trial date – Where application heard on first day of trial – Where some defendants not given sufficient notice of case against them – Where appropriate to adjourn claims against those defendants – Whether to proceed on separate claims against defendant who was given sufficient notice – Usual requirements if adjournment sought for medical reasons – Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L McAuliffe | Corrs Chambers Westgarth |
| For the First Defendant, Second Defendant and Fourth Defendant | Litigants in person | |
| For the Third Defendant | N/A |
HIS HONOUR:
A. Introduction
Mr Shivesh Kuksal, Mr Peter Ansell, and Ms Lulu Xu, the first, second and fourth defendants respectively,[1] are associated with a company known as People Shop Pty Ltd that carried on a legal practice known as Erudite Legal. The Victorian Legal Services Board, the plaintiff (‘the Board’) became concerned about the operations of People Shop Pty Ltd and took action under the Uniform Law[2] including by appointing an external manager, Mr Howard Rapke, to the practice. On 21 October 2022, this Court made interlocutory orders that, speaking in general terms, restrained Mr Kuksal and Ms Xu (but not Mr Ansell) from sending emails from the email domain ‘eruditelegal.com.au’ or using various accounts that were ‘@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. At the time those orders were made, the originating motion indicated that the injunctions were sought on the basis that the use of those email addresses would obstruct Mr Rapke in his role as external manager. By an amended originating motion filed on 23 February 2023, the Board 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. The amended originating motion removed the contention that the sending of emails from that address would obstruct Mr Rapke in his role as manager because Mr Rapke is no longer the manager.
[1]The Board discontinued its claims against the third defendant, Ms Di Gregorio.
[2]That is, sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).
The Board relies on s 447 of the Uniform Law as a source of the Court’s power to grant an injunction restraining a person from contravening the Uniform Law. That section applies only if the person has contravened, or is contravening, or is likely to contravene, the Uniform Law. The Board seeks an injunction against Mr Ansell restraining him from engaging in legal practice without a practising certification. Its submissions, filed on 19 July 2024 and served on 20 July 2024, contend that Mr Ansell has previously done so in breach of s 10 of the Uniform Law. Section 10 of the Uniform Law provides that an entity ‘must not engage in legal practice unless it is a qualified entity’. The Board’s submissions also contend that all defendants have contravened, or are likely to contravene, s 11 of the Uniform Law. Section 11 of the Uniform Law provides that an entity ‘must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice unless it is qualified entity’. An individual person is an ‘entity’.[3] A ‘qualified entity’ relevantly means an Australian legal practitioner or a law practice.[4] An ‘Australian legal practitioner’ is an Australian lawyer who holds a current Australian practicing certificate.[5]
[3]Uniform Law s 6(1).
[4]Ibid.
[5]Ibid.
The proceeding was listed for trial on 1 August 2024. That day, the defendants applied for an adjournment. After hearing argument, I made orders in the following form and said I would deliver reasons later:
1. The application for the relief sought against the second defendant, Mr Ansell, in paragraph three of the amended originating motion filed 23 February 2024 be adjourned to 10.30 am on Monday 5 August 2024.
2. The application for the relief against the first defendant Mr Kuksal, the second defendant Mr Ansell and the fourth defendant Ms Xu in paragraph two of the amended originating motion filed 23 February 2024 be adjourned to 10.30 am Tuesday 20 August 2024.
3. The defendants file submissions in relation to paragraph two of the amended originating motion no more than 20 pages by 4 pm on 16 August 2024.
4. Costs reserved.
These are those reasons.
B. The material filed
As noted above, the matter was set down for trial on Thursday 1 August 2024. The defendants were ordered to file any affidavits on which they sought to rely on or before 12 July 2024 and written submissions on or before 26 July 2024. They did not do so. At approximately 11:21am on 31 July 2024, the day before the hearing was due to commence, Mr Kuksal emailed my chambers to request an adjournment ‘on account of a medical issue’ with his left ear that, he said, had been ‘ongoing for two weeks now’. The email also said that the ‘consequent problems have also kept me from being able to work or prepare for the case during the period.‘ He did not file, or seek to file, a summons or affidavit. The email attached letters dated 21 July 2024 and 28 July 2024 prepared by Dr Jason Lau from a medical clinic in Hoppers Crossing and medical certificates bearing the same dates. Both letters were in the same terms, and merely stated:
I have seen Mr Shivesh Kuksal, a 33 years old gentleman who is a patient of [name] Medical Centre.
This letter is provided at the request of this patient.
I am reviewing him today with regards to a[n] ear issue.
He requests for his court hearing to be adjourned and I would support his request as per his medical certificate.
Should any of the above need clarification, please feel free to contact our clinic on [telephone number given].
The 21 July 2024 certificate stated:
Mr Shivesh Kukal has a medical condition and will be unavailable to present for work from 22nd July 2024 to 23rd July 2024 inclusive.
The 28 July 2024 certificate stated:
Mr Shivesh Kukal has a medical condition and will be unavailable to present for work from 29th July 2024 to 1st August 2024 inclusive.
My chambers advised Mr Kuksal that the trial would not be adjourned on the papers, but that he could make his application, by audiovisual link if he wished, at the commencement of the matter the next day, and that his doctor should be available to give evidence by video link. Mr Kuksal took exception to that approach by return email, advising that he would appear but that his doctor did ‘not work on Thursdays’.
On the morning of 1 August 2024, less than an hour before the trial was due to commence, Ms Xu emailed to my chambers a copy of an affidavit sworn by Mr Ansell and expressed (in the tramlines) to have been filed on behalf of ‘the defendants’ and to have been ‘prepared by People Shop Pty Ltd’, with the contact details being the email address ‘[email protected]’. The affidavit was expressed to be in support of, among other things, the application by ‘the defendants’ for an adjournment of the trial.
The affidavit purported to exhibit (and a ‘Dropbox link’ was provided) at least nine other affidavits and a ‘folder’ of correspondence.[6] The affidavit indicated that the defendants intended to, but due to Mr Kuksal’s falling ill had been unable to, commence proceedings against the Independent Broad-Based Anti-Corruption Commission (‘the IBAC’) for its failure to make a preliminary decision in respect of a complaint made by them against me, and were unable to lodge an appeal and seek an injunction against my continued involvement in this proceedings.
[6]The Dropbox link included 9GB of digital files, including various video files taken at the People Shop Pty Ltd premises and audio recordings of what may be hearings in other court proceedings entitled ‘ASIC v Kuksal’. I was not taken to any particular exhibit by the defendants in the hearing.
It also stated that:
Mr Kuksal’s illness has also prevented the Defendants from preparing for the trial commencing today.
There was no suggestion that either Mr Ansell or Ms Xu had been unwell.
C. The oral submissions
C.1 Mr Kuksal
My Kuksal appeared by audio-visual link. He did not seek to put any additional material before me from his doctor. He stated that he had had a bleeding left ear which, on top of some mental health issues, had caused him anxiety and rendered him ‘dysfunctional’.
Mr Kuksal presented just as he has presented on previous occasions and there was no obvious sign of any illness or incapacity. As I understood it, Mr Kuksal relied on periods of incapacity prior to that day.
In response to my query as to why he had not filed any affidavit material, which was due on 12 July 2024, Mr Kuksal gave an unsatisfactory explanation. The thrust of his explanation was that he made a deliberate decision not to prepare and to file any affidavit material because:
(a) on 10 July 2024, in another proceeding, he had applied for an order that I recuse myself, I had reserved, and I did not hand down reasons dismissing that application until 18 July 2024;[7]
[7]Kuksal v Victorian Legal Services Board (Recusal, Summons and Subpoenas) [2024] VSC 418.
(b) he anticipated, in some way, that I would recuse myself (he said he was ‘confident’ that there were solid grounds for that application) and thus he would not need to put in any material in accordance with the Court orders. He contended that he was entitled to wait until the recusal application had been heard because in some way until I delivered reasons I ‘did not have operational jurisdiction’. He did not dispute my characterisation of this that he ‘downed tools’ between 10 and 18 July 2024, although he said that he was working on other matters during that time; and
(c) at the time that he made that application, he was, presumably instead of preparing material required for this trial, instead preparing:
(i) an application for an injunction in the Court of Appeal against my continued involvement; and
(ii) an application he intended to make in this Court against the IBAC for its failing to make a finding within 90 days of having received a complaint from him (and he said that each defendant had made a complaint to the IBAC alleging ‘criminal conduct’ on my part).
I do not accept any of these as proper reasons for failing to comply with the Court orders made for the preparation of material required for this trial.
I asked Mr Kuksal how, in the circumstances, the affidavit sworn on 1 August 2024 by Mr Ansell had come to be prepared and filed on his behalf. He said it was an ‘excerpt’ or ‘subset’ of a larger affidavit that he had been working on since 26 June 2024 for his proposed applications to the Court of Appeal in relation to the IBAC as noted above.
Later, Mr Kuksal also said, in support of his adjournment application, that he had always believed that the validity of the Board’s decision not to renew Mr Ansell’s practising certificate – that is, whether the Board was acting for an improper purpose as part of a conspiracy to cause him harm – was an issue that was going to be determined, indeed was the first issue, in the hearing of the originating motion and that he had prepared the case on that basis. He submitted that I had agreed to that in a ruling I gave in this proceeding on 19 February 2024. When I asked to be taken to the transcript, he modified the submission to be that I had agreed to this ‘inferentially’. Neither is correct. The ruling concerned an application by the Board for costs.[8] Mr Kuksal opposed the application on grounds including his assertion that the proceeding was initiated as part of a conspiracy of unlawful conduct directed at him by the Board and Victoria Police and other persons. I ordered costs against the defendants. In the course of doing so, I stated that I was not then in a position to determine whether the proceeding was commenced as a result of an unlawful conspiracy, but that that was no reason not to make the costs order.[9] That should not have been taken to be a decision that I would be determining that issue as the first order of business, or at all, when this proceeding came on for trial. Furthermore, and in any event, I later made it clear to Mr Kuksal that I did not consider that that issue was an issue that had or should be determined, at all, in this proceeding. In Victorian Legal Services Board v Kuksal (Recusal and Subpoenas),[10] I stated:
I do not accept that this proceeding raises those issues for determination. In my view, it is clear beyond any sensible argument that if a lawyer, like Mr Ansell, has had his practising certificate cancelled or revoked or not renewed by the Board, then that person is thereafter not entitled to practice. If, in due course, it is established that the Board was wrong to cancel or to revoke or not to renew that practising certificate, or acted improperly, and the practising certificate is reinstated, then the right to practice would return. But until that happens, that person is not entitled to engage in legal practice under some fiction that they always held a practising certificate. This proceeding is concerned with the situation as it currently stands.[11]
[8]The ruling, originally given orally, was later published Victorian Legal Services Board v Kuksal (Costs and Amendment Application) [2024] VSC 48.
[9]Ibid [23].
[10][2024] VSC 291.
[11]Ibid [24].
This paragraph did not escape Mr Kuksal’s attention. He relied on it when he brought a recusal application in the other proceeding as a finding that revealed bias.[12]
[12]Kuksal v Victorian Legal Services Board (Recusal, Summons and Subpoena) [2024] VSC 418.
When asked why he sought the adjournment, Mr Kuksal did not say that he wished to file evidence directed at the merits of the proceeding. He said that the only evidence he could file had to do with the manner in which the Board was proceeding with its case. Mr Kuksal said that he wanted:
(a) To look at the material filed by the Board (which he submitted he had not done);
(b) To apply for injunctive relief from, as I understood it, the Court of Appeal to prevent me from hearing the matter; and
(c) To seek legal advice on the implications of the alleged breach of sections 10 and 11 of the Uniform Law.
C.2 Mr Ansell
As noted above, Mr Ansell is a qualified lawyer. He sought an adjournment on the grounds that he had specialised in will and conveyancing, not litigation, and was dependent on Mr Kuksal both to provide him with the factual information required to defend the claims against him and to develop and to present the necessary legal argument. He said that he did not have ‘the necessary ability to argue very complicated matters before the court’.
When asked why he had not filed any affidavit material by 12 July 2024, he spoke in a way that suggested that he and Ms Xu and Mr Kuksal had been meeting and working together, at least to some extent, in the days and weeks prior to the day of the trial. He said:
I’ve been with Mr Kuksal and Ms Xu virtually every day in the last month. That includes weekends. So I have continual discussions with Mr Kuksal in relation to this matter, and, also, strategy in relation to the matter. We discuss the preparation of documents quite extensively.
When asked about his affidavit filed that morning, he effectively confirmed that its genesis had been an affidavit that was being prepared for the application to the Court of Appeal and that this had involved a ‘lot of work’ including a substantial portion by Mr Kuksal. I asked whether that preparation had continued to yesterday, and he said that it had.
The above statements were somewhat in conflict with Mr Kuksal’s assertion that he had been disabled with illness in the prior fortnight. When asked, Mr Ansell then clarified that Mr Kuksal hadn’t been able ‘to participate as he normally would’, that is, that Mr Kuksal had not been able to work ‘the 20 hours a day' he normally works.
Mr Ansell noted that he also wanted to adjourn the proceeding so that he could join the Attorney-General and the Victorian Equal Opportunity and Human Rights Commissioner to the proceeding.
It is significant that the claims in this proceeding against Mr Ansell do not directly overlap with the claims against Mr Kuksal and Ms Xu. The Board seeks an injunction restraining Mr Ansell from engaging in legal practice while he does not have a practising certificate. The submissions filed by the Board indicate that they contend that he has previously done so in breach of s 10 of the Uniform Law. The Board does not make those allegations against Mr Kuksal or Ms Xu: it contends only that they (but also Mr Ansell) breached s 11 of the Uniform Law. I asked Mr Ansell for his position on whether, even if I adjourn the application against Ms Xu and Mr Kuksal, I should continue with that part of the claims against him. He resisted this.
C.3 Ms Xu
Ms Xu presented a clear argument in support of her application for an adjournment. She pointed out the following:
(a) The originating motion, when filed, sought injunctions that restrained her from using certain email addresses on the grounds that her doing so would amount to an obstruction of Mr Rapke in his capacity as manager of the practice;
(b) Mr Rapke had now ceased to be the manager;
(c) The amended originating motion filed on 23 February 2024 sought essentially the same relief, but without the assertion that the use of those email addresses would obstruct Mr Rapke, and, although it still indicated that the application was being brought under s 447 of the Uniform Law, it did not identify any particular section of the Uniform Law that, it was said, the defendants had contravened;
(d) She had asked for an explanation as to the basis on which claims were being maintained against her in circumstances where Mr Rapke was no longer the manager of the practice, but she had not received this explanation. She drew my attention to the transcript of a mention in this matter on 4 June 2024. In that transcript, Ms Xu said:
So, my submission is that the board other than you amended originating motion. They're relying on s 447 of the Uniform Law, and my submission is that uniform law 447 cannot be used by its own. So it needs to connect another section of the Uniform Law to say that which section is breached by the defendant. So, previously in the original originating motion they have identified that s 364 was the section they're relying on, saying that we have contravened 364. This was in their submissions 11 filed on 12 October '22.
So - and if I can read s 364, it says that a person must not without reasonable excuse obstruct an internal intervenor exercising a function under this law. So, previously how they rely on - how they use 447 is by relying on s 364. My question or if I can ask the court to direct the Legal Services Board to tell me or to explain to me what is the new grounds that - the new section they're saying that we have contravened or is contravening or is likely to contravene that will invoke s 447.
…
So I understand previously was 364. Now I want to know if they still relying on it or if there is another section that they have alleged that we breached.
(e) She did not receive notice that the Board alleged that her conduct was in contravention of s 11 of the Uniform Law until she received its written submission in this proceeding (which was served on Saturday 20 July 2024);[13] and
(f) That was a serious allegation, and she wished to have more time to consider it and to obtain some legal advice.
[13]There has been problems with many servers due to a widespread IT-outage that had, the Board said, caused these submissions to be served on the Saturday rather than on Friday 19 July 2024.
D. What should be done?
Mr Kuksal emphasised that a Court hearing an application for an adjournment must weigh the prejudice that granting an adjournment would cause against the prejudice that not granting an adjournment would cause. I accept that that is the essential test. But it is modified by the need to achieve so far as is possible the ‘overarching purpose’ of ‘facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute’.[14] Adjournments do not always facilitate the timely or cost-effective resolution of cases and can result in wasted Court or community resources,[15] and so a matter that has been called on for trial should not be adjourned unless there is a proper reason for doing so.
[14]Civil Procedure Act 2010 (Vic) s 7.
[15]See generally Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 189 [25] (French CJ).
D.1 The claim based on s 11 of the Uniform Law
In circumstances where Ms Xu was first put on notice last weekend that the Board was alleging that she had contravened s 11 of the Uniform Law, I accepted her submission that it would be unfair on for her to have to respond to that case on 1 August 2024.
Mr Kuksal stated that he had presented a similar argument. It would, equally and for the same reasons, be unfair in the circumstances for him, too, to have the trial proceed against him on 1 August 2024. Furthermore, the claims based on s 11 of the Uniform Law are sufficiently intertwined that they should be heard together unless there is good reason not to do so.
Ms Xu sought an adjournment of three months. I did not accept that an adjournment of that length is required. The case against Ms Xu and Mr Kuksal is based on documents and the outcome will likely depend on what inferences I draw from those documents. The adjournment is being given to allow Ms Xu and Mr Kuksal to reflect upon whether the conduct they engaged in contravened s 11 of the Uniform Law and to develop arguments to the contrary.
I did not accept that an adjournment was required in order to allow the defendants to add the Attorney-General or the Victorian Equal Opportunity and Human Rights Commissioner to the proceeding or that any adjournment should be of a duration that would allow that now to be done.
In the circumstances, it was not necessary for me to determine whether the medical material put forward by Mr Kuksal would have justified an adjournment. I do observe, however, that where it is contended that a trial has to be adjourned because a medical condition has prevented a person from preparing for or participating in the trial, one would ordinarily expect an opinion from a doctor that provides some detail about the condition, when it arose, the effect it has had, and a prognosis, together with an affidavit in support, so that the merits of the claim may properly be evaluated. Mr Kuksal was right to say, as a general proposition, that he had a ‘right to privacy of medical information’, but that right would ordinarily have to give way if an adjournment is sought for medical reasons.
D.2 The claim against Mr Ansell
The Board claims that Mr Ansell has contravened s 11 of the Uniform Law. To the extent that the Board relies on a contravention of s 11 of the Uniform Law in its claim against Mr Ansell, that, too, should be adjourned to be heard with the like claims against Mr Kuksal and Ms Xu.
The Board, however, also alleges that Mr Ansell (but not Mr Kuksal or Ms Xu) has contravened s 10 of the Uniform Law. Section 10 of the Uniform Law provides that an entity must not engage in legal practice unless it is a qualified entity – that is, it relates to the actual engaging in legal practice.
It has always been apparent that the Board is alleging that Mr Ansell engaged in legal practice without a practising certificate. That is why he (supported by Mr Kuksal and Ms Xu) has contended that there is first a need to establish whether the Board’s refusal to renew his certificate was lawful, on the grounds (not accepted by me) that such a finding would validate, or retrospectively make lawful, as it were, any engaging in legal practice by him in the meantime. Mr Ansell, to his credit, did, ultimately, accept that he had always understood that the allegation against him was that he had engaged in legal practice without a practising certificate.
Each of Mr Ansell, Mr Kuksal and Ms Xu separately opposed this aspect of the claims against Mr Ansell proceeding. Mr Kuksal and Ms Xu expressed concern that they would be bound by findings made against Mr Ansell and that they would be prejudiced if the claims against him were not heard at the same time as the claims against them were heard. Mr Kuksal added an assertion that s 14 of the Uniform Law ‘essentially provides immunity to lay people employed by legal practices’, that no finding could be made against him or Ms Xu without a finding against Mr Ansell, and that he was ‘absolutely not prepared to allow Mr Ansell to proceed on his own’. I do not accept that submission. Section 14 of the Uniform Law does no such thing. It provides as follows:
14 Functions of local regulatory authority with respect to offence
The designated local regulatory authority may—
(a) take any steps that in its opinion may be necessary or proper for or with respect to the investigation of any question as to conduct by any entity (whether or not an Australian lawyer) that is, or may be, a contravention of a provision of this Part; and
(b) institute prosecutions and other proceedings for the contravention of a provision of this Part by any entity (whether or not an Australian lawyer).
Mr Kuksal also submitted that he owned the intellectual property associated with People Shop Pty Ltd and that any findings against Mr Ansell would affect him financially. He was submitting, as I understood it, that if Mr Ansell were enjoined from engaging in legal practice without a practising certificate, he (Mr Kuksal) would suffer financial loss. This submission is without merit. In my view, the claim against Mr Ansell based on s 10 of the Uniform Law could proceed separately from the claims against all defendants based on s 11 of the Uniform Law.
Mr Ansell submitted, again, that he was dependent on Mr Kuksal to provide information and to prepare his submissions. In circumstances where it has always been clear that the allegation made against Mr Ansell is that he engaged in legal practice without a practising certificate, and Mr Ansell has been on notice of the trial date, I did not consider this to be a proper reason for a delay of any length. Mr Ansell should know what he has done and why and be able to present argument on whether it was in breach of s 10 of the Uniform Law. I considered it appropriate to grant only a short adjournment of that part of the claim against Mr Ansell from the Thursday (when the trial was listed to commence) to the following Monday.
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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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