Victorian Legal Services Board v Kuksal (Costs)
[2024] VSC 746
•5 December 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: | Nil, submissions provided on 15 November 2024 |
DATE OF RULING: | 5 December 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Kuksal (Costs) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 746 |
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COSTS – Whether costs be awarded on indemnity basis instead of standard basis – Whether appropriate to specify gross sum – Where redactions applied to descriptions of fees payable to solicitors – Where sums specified for some counsel fees and disbursements where satisfied that would be recoverable on taxation – Giurina v Greater Geelong City Council [2021] VSCA 341 – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.07 – Civil Procedure Act 2010 (Vic) pt 2.3.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | N/A | Corrs Chambers Westgarth |
| For the First Defendant, Second Defendant and Fourth Defendant | Litigants in person | |
| For the Third Defendant | N/A |
TABLE OF CONTENTS
A. Should costs be ordered on the indemnity basis?................................................................. 1
A.1The application for interim relief heard by Forbes J........................................................ 1
A.2The appearances before me................................................................................................. 4
B. Should costs be specified?.......................................................................................................... 4
C. Specifying counsel’s fees............................................................................................................ 7
C.1Appearances before Forbes J............................................................................................... 7
C.2Appearances before me........................................................................................................ 8
C.2.117 August 2023, 3 November 2023 and 28 November 2023............................... 8
C.2.219 February 2024....................................................................................................... 9
C.2.317 May 2024............................................................................................................... 9
C.2.44 June 2024................................................................................................................. 9
C.2.51, 5, 20 and 21 August 2024................................................................................... 10
C.2.61 November 2024.................................................................................................... 11
D. Specifying disbursements other than counsel’s fees.......................................................... 11
D.1Transcript............................................................................................................................. 11
D.2Service fees........................................................................................................................... 11
E. Summary and disposition......................................................................................................... 12
HIS HONOUR:
This proceeding was commenced on 7 October 2022 when the Victorian Legal Services Board (‘the Board’) filed an originating motion by which it sought injunctions against Mr Shivesh Kuksal, Mr Peter Ansell, Ms Maria Di Gregorio and Ms Lulu Xu, the first to fourth defendants, pursuant to s 447 of the Legal Profession Uniform Law (‘the Uniform Law’).[1] The Board also filed on that date a summons returnable before the judge in charge of the Practice Court in which interim injunctive relief was sought. The Board obtained interim relief on 21 October 2022 against Mr Kuksal, Ms Di Gregorio and Ms Xu but not against Mr Ansell. On 4 December 2023, the Board discontinued its claims against Ms Di Gregorio. On 1 November 2024, the Board obtained final relief against all remaining defendants. The Board has now sought its costs of the proceeding from Mr Kuksal, Mr Ansell and Ms Xu on the indemnity basis, and sought that they be fixed in the sum of $358,663.13.
[1]That is, sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).
I will deal first with the nature of the costs that should be ordered, and then with the question of whether or to what extent they ought or may be fixed or specified and if so in what amount.
I note that the Board filed a submission on costs on 15 November 2024. The defendants were to file and serve any material they sought to rely on in relation to costs by 29 November 2024, but did not do so.
A. Should costs be ordered on the indemnity basis?
A.1 The application for interim relief heard by Forbes J
The application for the interim relief first came before the Honourable Justice Forbes on 14 October 2022. Her Honour made directions for the filing and exchange of affidavits and submissions and listed the application for hearing on 20 October 2022. Her Honour also made orders for the exchange of material in support of and in opposition to of a recusal application that the defendants indicated they intended to make. Costs were reserved.
On 20 October 2022, her Honour commenced to hear the application for the interim relief. The defendants had not filed material in accordance with the timetable but sought to rely on material produced shortly before the matter came on for hearing, most significantly an affidavit sworn by Ms Di Gregorio on 19 October 2022 that exhibited some 6,000 pages of documents. The body of the affidavit was filed at 4:46am on 20 October 2022 and neither her Honour nor the Board had had the opportunity to review it prior to the hearing commencing. Mr Kuksal applied for an order that her Honour recuse herself. The other defendants joined in that application. That application was dismissed. Mr Kuksal applied for an adjournment so that he could appeal. That application was dismissed. The application for recusal was renewed, or sought to be renewed, on at least two further occasions. Mr Kuksal and Ms Xu objected to the Board’s affidavit material including on the basis that the deponent, Mr Benjamin Davidson, had committed perjury and misled the Court. That objection was dismissed. Mr Kuksal also submitted, several times, that the Board’s counsel was in breach of the model litigant obligations, in breach of the professional conduct rules, misleading the Court and acting scandalously, and that material was being relied on in breach of the Harman undertaking.[2] The application was not able to be completed within a day.
[2]See Harman v Secretary of State for Home Department [1983] 1 AC 280; see also Hearne v Street (2008) 235 CLR 125.
At 10:15am on 21 October 2022, the defendants filed a 74 page document, prepared by Mr Kuksal, headed ‘Submission’ that referred to legal principles relating to natural justice, equitable fraud, abuse of process, various lawyers’ obligations, ‘costs against lawyers’, and recusal. At the same time, they filed another affidavit affirmed by Ms Di Gregorio that indicated it exhibited material that the defendants would rely on in applications seeking a permanent stay of the proceeding on the grounds that it was an abuse of process, and ‘disciplinary sanctions and costs orders’ against the Board and its lawyers. The exhibit (not filed) consisted of some 1,796 pages. The defendants made a further recusal applications. There was an argument about whether Ms Di Gregorio’s affidavit should be accepted. Two other documents were filed by the defendants that afternoon, one relating to authorities relied upon and the other submissions on statutory provisions, totalling 94 and 27 pages respectively. The matter was not able to be finished by the end of that day. Her Honour adjourned the further hearing of the application to a date to be fixed and made an interim injunction in the meantime.
On 28 October 2022, Forbes J published reasons for her dismissal of the recusal applications,[3] in which she stated:
Kuksal’s behaviour was belligerent and argumentative: he interrupted others at the bar table and continuously interrupted and spoke over the judge; at times he raised his voice to be heard over others. He often failed to address questions asked of him and continued to persist with ongoing non-responsive answers in the face of a request to be seated.[4]
[3]Victorian Legal Services Board v Kuksal & Ors (Recusal Applications) [2022] VSC 648.
[4]Ibid [27].
Her Honour also made orders that day requiring the defendants to file a written outline of the remaining issues that they wished to address together with an estimate of the time that they would require to address those issues in oral submissions. The order stated that the matter would be relisted after that had been done. It seems that the defendants did not comply with that order. Accordingly, the interim injunction made on 21 October 2022 continued thereafter until the final determination of the proceeding.
The manner in which the defendants conducted the defence of the application before Forbes J was most unsatisfactory. The transcript reveals that a substantial part of the two days of hearing was taken up with recusal applications. Those, and the other applications, and the objections to the Board’s affidavits, were without merit. The length of time taken up by the hearing was also contributed to by the fact that the defendants had not provided material in advance of the hearing despite being ordered to do so and by Mr Kuksal’s habit of interrupting and arguing with the judge and interrupting the Board’s counsel. Mr Kuksal prevented the matter from proceeding in an orderly manner, and the remaining defendants by adopting Mr Kuksal’s arguments endorsed this behaviour. I am therefore satisfied that the defendants should pay the Board’s costs of the application for the interim injunctions before Forbes J on the indemnity basis.
A.2 The appearances before me
The defendants (by which term I now mean Mr Kuksal, Mr Ansell and Ms Xu, because the claim was discontinued against Ms Di Gregorio) have conducted their defence to the claim before me in an way that added substantially and unreasonably to the costs that have been incurred. They have repeatedly ignored directions requiring them to file submissions in advance of any hearing, have sought to raise issues orally at the last minute, have sought to rely on lengthy documents at the last minute, have made or attempted to make unmeritorious applications, and have presented unmeritorious arguments.[5] Properly advised, they would not have acted in such a way. I accept the Board’s submission that its costs should be paid on the indemnity basis.
[5]Cf Civil Procedure Act 2010, pt 2.3.
It is not necessary for me to set out here, in detail, the matters to which I am referring, because they have been set out previously in: Victorian Legal Services Board v Kuksal (Recusal) (No 2) [2023] VSC 698 (28 November 2023); Victorian Legal Services Board v Kuksal (Costs and Amendment Application) [2024] VSC 48 (19 February 2024); Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291 (4 June 2024); Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay) [2024] VSC 367 (26 June 2024); Victorian Legal Services Board v Kuksal (Adjournment) [2024] VSC 459 (2 August 2024); Victorian Legal Services Board v Kuksal (Judiciary Act and Charter Notices) [2024] VSC 461 (6 August 2024); and Victorian Legal Services Board v Kuksal [2024] VSC 674 (1 November 2024).
B. Should costs be specified?
As noted above, the Board sought that its costs be fixed – that is, be payable on a gross sum basis. The Court has a broad discretion in relation to the basis on which costs are to be paid.[6] Rule 63.07 of the Supreme Court (General Civil Procedure) Rules 2015 provides as follows:
[6]Supreme Court Act 1986 (Vic), div 3 s 24.
63.07 Taxed or other costs provision
(1) Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.
(2) Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to—
(a) a portion specified in the order of taxed costs;
(b) taxed costs from or up to a stage of the proceeding specified in the order;
(c) a gross sum specified in the order instead of taxed costs;
(d) a sum in respect of costs to be determined in such manner as the Court directs.
In circumstances where the litigation between the parties has been prolonged, expensive and wasteful, and any taxation is likely to be of like character, I accept the Board’s submission that I should, to the extent possible, specify fees to minimise the need for, or scope of, a taxation.[7] I am prepared to specify a gross sum for costs payable without a taxation, but only the extent that I am satisfied that the amount specified is no greater than would be allowed on a taxation on the indemnity basis, bearing in mind that the indemnity basis does not include fees that are of an unreasonable amount or have been unreasonably incurred.[8]
[7]See, eg, Giurina v Greater Geelong City Council [2021] VSCA 341, [16] (Kennedy and Walker JJA and Macaulay AJA).
[8]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 63.30.1(1).
The Board relied on an affidavit sworn by Mr Davidson of Corrs Chambers Westgarth. That affidavit exhibited the invoices that have been rendered by Corrs Chambers Westgarth and establishes that the Board’s total legal costs have been in the amount claimed. However, the invoices, as I read them, appear to relate to work performed by Corrs Chambers Westgarth for the Board in relation to its various legal disputes with Mr Kuksal and the other defendants and are not necessarily limited to its costs in relation to the prosecution of this particular proceeding. Further, the invoices produced by the Board have been heavily redacted in order, it was submitted, ‘to preserve the Board’s entitlement to legal professional privilege, which is necessary in circumstances where the Board remains party to a range of active, overlapping proceedings maintained by the defendants’. The parts redacted were the narrative parts of the fee slip that describe the work done; all the Court was provided with, for the solicitors’ professional fees, was a date, an hourly rate, an indication of time spent and the amount charged for that entry.
Even where the date on an invoice is a day on which the proceeding was before me, there are a number of different entries, presumably or possibly by different practitioners, that set out different time periods charged. In these circumstances, where the description of the work done has been redacted, I cannot be satisfied, to the extent needed to quantify the costs payable, that any particular item claimed is both referable to this proceeding and properly recoverable on a taxation even on the indemnity basis. Accordingly, I am unable to specify a gross sum for costs referable to Corrs Chambers Westgarth’s professional fees.
The situation is different with counsel’s fees and other disbursements. The Board’s affidavit put before me counsel’s fee slips that identify the name of counsel, the date, and the amount charged. Where that counsel appeared for the Board on that day in this proceeding, I conclude that the itemised fee was for that appearance. On the material placed before me, I am not prepared to specify a sum for charges by counsel for days on which they were not in Court. Those fees may well have been for preparation for the Court hearing, and so may well be recoverable in a taxation, but, in circumstances where the descriptive part of the work has been redacted, I am not able to specify costs based on that assumption. Accordingly, I will specify a gross sum for counsel’s fees but only in respect of the actual days on which they appeared in Court and with reference to a fee slip which references that date. Similarly, the Board has also produced invoices from process servers and transcript providers. Where it is clear that those costs relate to this proceeding, I will specify those costs in the amounts claimed. These amounts will, of course, be immediately payable.
As I am only specifying a gross sum for costs that I am satisfied on the material before me have been incurred and are referable to this proceeding and would be recoverable in a taxation on the indemnity basis, the amounts I specify operate as a floor, not a ceiling: the Board, should it wish to recover more costs than the amounts that I specify, will be entitled to have its other costs taxed in the ordinary way.
The Board explicitly stated that it was not seeking to recover the GST component of fees charged. A number of fee slips concerning fees payable to counsel did not have GST separately itemised. For fee slip items that do not have GST separately itemised, I have reduced the amount by one-eleventh to account for the GST-exclusive amount only.
C. Specifying counsel’s fees
C.1 Appearances before Forbes J
As noted above, the Board appeared before Forbes J on 14 October 2022, 20 October 2022, 21 October 2022 and 28 October 2022. The Board prepared an affidavit of Mr Davidson and written submission both filed on 12 October 2022. It was represented by Mr Senathirajah KC with Ms Kirwan of counsel. Taking these days in turn, I will specify a total of $20,209.10 as set out below:
(a) 14 October 2022 appearance: I am satisfied from the fee slips produced that Mr Senathirajah’s fee for that appearance was at least $2,045.45 (being $2,250 including $204.55 as GST). I am satisfied that this fee would be recoverable on a taxation on the indemnity basis. No fee slip identifying Ms Kirwan’s fee for this day was produced (although she did in fact appear) but fee slips were produced for 13 and 18 October 2022 at $1,440. There is no doubt that Ms Kirwan appeared on 14 October 2022. I am satisfied that a fee of at least $1,309.09, being $1,440 including GST of $130.91, for her appearance on that date would be allowed on a taxation. Accordingly, I will specify a cost for the appearances that day at $3,354.54.
(b) 20 October 2022 appearance: I am satisfied from the fee slips produced that Mr Senathirajah’s fee for that day was $5,454.55 (being $6,000 including $545.45 as GST) and that Ms Kirwan’s fee for that day was $3,272.73 (being $3,600 including $327.27 as GST). I am satisfied that these fees would be recoverable on a taxation on the indemnity basis. Accordingly, I will specify a cost for the appearances that day at $8,727.28.
(c) 21 October 2022 appearance: I am satisfied from the fee slips produced that Mr Senathirajah’s fee for that day was $5,454.55 (being $6,000 including $545.45 as GST) and that Ms Kirwan’s fee for that day was $981.82 (being $1,080 including $98.18 as GST). I am satisfied that these fees would be recoverable on a taxation on the indemnity basis. Accordingly, I will specify a cost for the appearances that day at $6,436.37.
(d) 28 October 2022 appearance: I am satisfied from the fee slips produced that Mr Senathirajah’s fee for that day was $1,363.64 (being $1,500 including $136.36 as GST) and that Ms Kirwan’s fee for that day was $327.27 (being $360 including $32.73 as GST; not including any prior preparation). I am satisfied that these fees would be recoverable on a taxation on the indemnity basis. Accordingly, I will specify a cost for the appearances that day at $1,690.91.
(e) The affidavit and written submission: I am not able to identify a fee for the drawing of the affidavit or written submissions owing to redactions on the relevant fee slips. Accordingly, I will not specify a cost for those tasks.
C.2 Appearances before me
For the reasons that follow, I will specify a total of $10,909.08 in respect of the below appearances before me:
C.2.1 17 August 2023, 3 November 2023 and 28 November 2023
The parties litigated various issues that involved hearings on 17 August 2023, 3 November 2023 and 28 November 2023. As is set out in the following paragraph, I have already made orders that relate to those appearances.[9] The Board, quite appropriately, does not ask me to add to them.
C.2.2 19 February 2024
[9]See: Victorian Legal Services Board v Kuksal (Recusal Application) (No 2) [2023] VSC 698; Victorian Legal Services Board v Kuksal (Costs and Amendment Application) [2024] VSC 48.
The matter was listed before me on 19 February 2024. The Board was represented by Ms Norton.[10] On that day, I heard oral argument (the defendants had not filed a written submission as ordered) in the Board’s application for the costs of the hearings on 17 August 2023, 3 November 2023 and 28 November 2023 and to amend its originating motion. I granted both applications and ordered that the costs of the Board’s application to amend be costs in the proceeding.[11] The costs of the application for costs did not include counsel’s fees for appearing that day.[12] It follows that the Board is now entitled to recover the fee payable to counsel on 19 February 2024.
[10]Now Ms Norton SC.
[11]Victorian Legal Services Board v Kuksal (Costs and Amendment Application) [2024] VSC 48.
[12]Ibid [31(e)].
The Board has produced a fee slip from Ms Norton for $3,600 for the appearance on 19 February 2024 (inclusive of GST). Excluding GST, I am satisfied that a fee of $3,272.72 for Ms Norton’s appearance on that day would be recoverable in a taxation on the solicitor client basis.
C.2.3 17 May 2024
The proceeding was listed for mention before me on 17 May 2024 along with a related matter. The Board was represented by Mr McAuliffe. This proceeding was only reached in the sense that it was called on and then adjourned. I will not specify any costs in relation to the appearance on 17 May 2024.
C.2.4 4 June 2024
The proceeding was back before me on 4 June 2024. The Board was represented by Mr McAuliffe. The defendants made another recusal application and sought also that I entertain an application that the proceeding be dismissed on the grounds that it was an abuse of process and for a ‘protective costs order’. They also sought leave to file subpoenas. Later that day, I dismissed the application for recusal, dismissed the application for leave to file subpoenas, and made directions for the making of any application for a protective costs order and for a stay, made directions to trial, and reserved costs. I published reasons for so doing.[13]
[13]Victorian Legal Services Board v Kuksal [2024] VSC 291.
The Board produced a fee slip for $400, being $363.64 including GST of $36.36, for the appearance by Mr McAuliffe on 4 June 2024. Excluding GST, I will accordingly specify $363.64 in respect to his appearance on 4 June 2024.
I note, for completeness, that although the defendants did not comply with the time table ordered, they did seek relief by various communications to my chambers. On 26 June 2024, I made orders, on the papers, dismissing an application for actual bias and for protective costs orders and for a stay.[14] I will not specify any of the Board’s costs in relation to those applications.
C.2.5 1, 5, 20 and 21 August 2024
[14]Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay) [2024] VSC 367.
The proceeding was heard for trial on the following dates in August, which I consider in turn:
(a) 1 August 2024: The matter was listed for trial commencing on 1 August 2024. The Board was represented by Mr McAuliffe. The defendants sought an adjournment. The trial was adjourned to 5 August 2024. The Board has produced a fee slip from Mr McAuliffe for 1 August 2024 in the amount of $2,000 (inclusive of GST). Excluding GST, I will specify an amount of $1,818.18 in respect to his appearance on 1 August 2024.
(b) 5 August 2024: The Board was again represented by Mr McAuliffe. The defendants again sought an adjournment. I dismissed that application and made directions for any recusal application and for any applications in relation to the notices to produce. The Board has produced a fee slip from Mr McAuliffe for 5 August 2024 in the amount of $2,000 (inclusive of GST). Excluding GST, I will specify an amount of $1,818.18 in respect to his appearance on 5 August 2024.
(c) 20 and 21 August 2024: The matter resumed on 20 August 2024 and proceeded on that day and on 21 August 2024. The Board was again represented by Mr McAuliffe. The Board has produced a fee slip from Mr McAuliffe for 20 and 21 August 2024 in the amount of $2,000 for each day (inclusive of GST). Excluding GST, I will specify an amount of $3,636.36 in respect to his appearances on 20 and 21 August 2024.
C.2.6 1 November 2024
At the conclusion of the court hearing on 21 August 2024, I made orders in relation to the provision of further submissions and applications by the defendants. I delivered judgment on 1 November 2024. I was not provided with the fees that have been charged for the hearing of judgment. Accordingly, I will not specify any costs for 1 November 2024.
D. Specifying disbursements other than counsel’s fees
D.1 Transcript
The Board has provided invoices indicating it paid the following amounts (excluding GST), totalling $$8,136.40, for transcript in this proceeding:
(a) $1,519.80 for the transcript of 19 February 2024;
(b) $535.68 for the transcript of 4 June 2024;
(c) $1,179.88 for the transcript of 1 August 2024;
(d) $1,724.44 for the transcript of 5 August 2024; and
(e) $3,176.60 for the transcripts of 20 and 21 August 2024.[15]
D.2 Service fees
[15]All amounts were invoiced by EPIQ Australia Pty Ltd. The dates of the invoices are: 20 March 2024, 18 June 2024, 12 August 2024, 20 August 2024 and 29 August 2024.
The Board has similarly provided invoices indicating it paid the following amounts (excluding GST), totalling $1,495.40, for service fees:
(a) $513.80 invoiced by Servedoc on 10 October 2022 for service of documents in this proceeding on Mr Kuksal and Ms Xu;
(b) $592.60 invoiced by Network Process Service on 9 November 2022 for service of documents on Mr Peter Ansell; and
(c) $389.00 invoiced by Network Process Service on 11 November 2022 to Network Process Service for attempts at service and then service on Mr Kuksal and Ms Xu.
E. Summary and disposition
I accordingly will order that the first, second and fourth defendants pay the plaintiff’s costs to be taxed in default of agreement on the indemnity basis, with those costs to include (but not be limited to) the following amounts, totalling $40,749.98, immediately payable:
(a) $31,118.18 in counsels’ fees for appearances on 14, 20, 21 and 28 October 2022, 19 February 2024, 4 June 2024 and 1, 5, 20 and 21 August 2024;[16]
[16]As noted above, counsel fees for appearances on 17 August 2023, 3 November 2023 and 28 November 2023 have been dealt with previously and were not sought in this application, and no amounts have been specified for appearances on 17 May 2024 and 1 November 2024.
(b) $8,136.40 for transcript of hearings on 19 February 2024, 4 June 2024, and 1, 5, 20 and 21 August 2024; and
(c) $1,495.40 for service fees incurred on 10 October 2022, and 9 and 11 November 2022.
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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