Victorian Legal Services Board v Kuksal (Recusal and Subpoenas)
[2024] VSC 291
•4 June 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: | 4 June 2024 |
DATE OF RULING: | 4 June 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 291 |
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PRACTICE AND PROCEDURE – Application for recusal – Where previous unsuccessful applications made – Where applicant alleges apprehended and actual bias – Whether allegations of prior errors justify a finding of apprehended bias – Where circumstances do not justify a finding of apprehended bias – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
PRACTICE AND PROCEDURE – Subpoenas – Where unrepresented parties seek issue of subpoenas – Where subpoenas abuse of process and not for a forensic purpose – Whether oppressive nature able to be assessed prior to issue - Supreme Court (General Civil Procedure) Rules 2015 (Vic) ords 42 and 42A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr McAuliffe | Corrs Chambers Westgarth |
| For the First Defendant | Litigant in person | N/A |
| For the Second Defendant | Litigant in person | N/A |
| For the Third Defendant | N/A | N/A |
| For the Fourth Defendant | Litigant in person | N/A |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. Application for recusal................................................................................................................ 2
C. The proposed subpoenas............................................................................................................ 5
D. Protective costs order.................................................................................................................. 9
E. Stay pending the determination of a related proceeding...................................................... 9
F. Directions for the hearing of the amended originating motion........................................ 10
G. Other issues................................................................................................................................ 10
H. Disposition.................................................................................................................................. 10
HIS HONOUR:
A. Introduction
This proceeding was before me for mention this morning. I heard argument on a number of matters and indicated to the parties that I would deliver reasons and make orders later today. These are those reasons.
People Shop Pty Ltd is a company associated with Mr Shivesh Kuksal, the first defendant, (he is its ‘ultimate beneficial owner’) that traded as the law firm known as Erudite Legal. Ms Lulu Xu, the fourth defendant, was, at one time, a director of People Shop Pty Ltd. Mr Kuksal and Ms Xu do not have legal qualifications and have never held practising certificates. Mr Peter Ansell, the second defendant, holds legal qualifications and held a practising certificate. On 18 August 2022, the Victorian Legal Services Board (‘the Board’), the plaintiff, cancelled, or purported to cancel, Mr Ansell’s practising certificate.
On 21 October 2022, Forbes J, on the application of the Board, made interlocutory orders, speaking loosely, restraining Mr Kuksal, Mr Ansell, Ms Maria Di Gregorio and Ms Xu from communicating in a manner that associates them with a law practice previously conducted by People Shop Pty Ltd trading as Erudite Legal. Ms Di Gregorio was the third defendant. On 28 November 2023, I granted the Board leave to discontinue against her with no order as to costs, and set aside the interim injunction insofar as it applied to her. When I hereafter refer to the defendants, I am referring to Mr Kuksal, Mr Ansell and Ms Xu.
By an amended originating motion filed on 23 February 2024, the Board seeks, again speaking loosely, permanent injunctions essentially in the form of the interlocutory injunctions, and also a broader order restraining Mr Ansell, while he does not hold a practising certificate, from engaging in legal practice.
Prior to the hearing of a mention in this matter on 4 June 2024,[1] the defendants circulated a proposed summons and some proposed subpoenas. The proposed summons sought orders that I recuse myself, that the defendants be permitted to make an application for a protective costs order, and that the proceeding be stayed pending the determination of a related proceeding brought by Mr Kuksal against the Board and various persons whom the Board had appointed in relation to the management and investigation of People Shop Pty Ltd.
[1]The proceeding was initially listed for mention on 17 May 2024, along with a related proceeding, but was not reached. The proceeding was adjourned for mention 30 May 2024. The defendants then advised on 28 May 2024 they were no longer available on 30 May 2024 and sought for the proceeding to be adjourned. The proceeding was then relisted on 4 June 2024.
B. Application for recusal
Mr Kuksal applied orally for an order that I recuse myself. He accepted that he had previously made at least ten such applications.[2] When asked what had changed since the last application was made, Mr Kuksal advised me that he had made a complaint to the Independent Broad-based Anti-corruption Commission (‘IBAC’) about the conduct of both the Board and me, and that I had, in another proceeding, not allowed him to issue subpoenas or subpoenas in the form that he wished. His complaint to IBAC, he said, included that by ‘recklessly or maliciously’ making wrong decisions I have enabled the Board to engage in unlawful behaviour. He said that he was, expressly or by effect, alleging criminal conduct on my part that had caused him loss, and that he would, in due course, be seeking damages from me. He submitted that I should recuse myself for apprehended bias. Mr Ansell and Ms Xu joined in that application.
[2]In respect of some of these recusal applications I have published reasons: see, e.g., Victorian Legal Services Board v Kuksal (Recusal Application (No 2) [2023] VSC 698; Kuksal v Victorian Legal Services Board [2024] VSC 78.
Ms Xu sent to the Court an affidavit shortly before the mention commenced.[3] The affidavit was only five pages long but purported to exhibit:
[3]The affidavit was initially sent to the chambers of another judicial officer of this Court. The affidavit was subsequently sent to my chambers following the mention.
(a) as exhibits ‘LX-3’ and ‘LX-4’, two affidavits sworn by Mr Ansell on 4 December 2023 and on 17 May 2024 filed in another proceeding;
(b) as ‘LX-5’ ‘a folder that consolidates the evidential documents against the plaintiff and their co-conspirators, a large proportion of which has been discovered from other court proceedings’ that, it was said, I have ‘previously prevented’ them from ‘filing and relying upon’ in this and other proceedings; and
(c) as ‘LX-6,’ a document that ‘consolidates our recent correspondence with’ my chambers ‘in relation to subpoenas that we have been waiting for the court to approve for issue’ in another proceeding.
The exhibits were not provided with the affidavit. All that was provided was a Dropbox link to an unindexed 852-page bundle of documents. No documents were marked up as indicated in the body of the affidavit, and no ‘exhibit sheets’ were provided. The body of the affidavit otherwise essentially repeated complaints earlier made, deposed to the fact that a complaint had been made to IBAC, and made some submissions. Ms Xu did not take me to any particular page of the affidavit or the exhibits, and, indeed, was unable, when asked, to say how large the exhibits were. It seems that the complaint to IBAC was not exhibited.
I have read the body of the affidavit. It repeats assertions of what is said to be improper conduct by me in the past. It adds little new beyond complaints with my decision made on 17 May 2024 to refuse another recusal application,[4] complaints that I have not permitted the issuing of subpoenas or not responded quickly enough to their requests that I do so, and emphasising matters such as what Mr Kuksal said following my 17 May 2024 ruling:
[11]Following His Honour’s dismissal of our application, Mr Kuksal expressed his disappointment to His Honour and stated that he was of the view that His Honour was in effect perverting the course of justice by preventing us from enforcing the law against our oppressors and permitting them to persist in their unlawful and atrocious conduct with impunity.
[4]I gave oral reasons, and then released a revised transcript to the parties.
As I have emphasised in my earlier reasons, I do not accept that I have acted unfairly to the defendants and I do not accept their characterisation of my conduct or its effects on them. If they take the view that I have erred in my findings or my approach in a way that matters, that is something they are free to take up on appeal. They have not appealed any of my earlier refusals of their applications that I recuse myself. Addressing that issue, Ms Xu stated in her affidavit:
[13]We are, however, of the firm view that the appellate process is not designed for scenarios where judges persist in causing harm to litigants by continuing to act contrary to the law, either maliciously or spitefully, and abuse their discretion contrary to the interests of justice.
[14] It is, in our understanding, incontrovertible, that such conduct by a judicial officer brings the administration of justice into disrepute and has the potential of being unconscionably oppressive, even in circumstances where the litigants do not suffer the grave vulnerabilities and disadvantages as we do.
I disagree with the suggestion contained in these paragraphs that a party would be unable to obtain relief in an appeal if that party were able to establish that my conduct was of that type.
I reject the application that I recuse myself for apprehended bias. As I have previously explained, the making of errors does not mean that a person is biased. I am not satisfied that the fair-minded lay observer might think that I might not bring an impartial mind to the resolution of the issues that arise.[5] Notwithstanding the list of cases that Mr Kuksal provided this morning, that remains the essential test. Further, the fact that Mr Kuksal has complained about me, including by making serious allegations of misconduct, is not a reason for which I should recuse myself. It would be contrary to the administration of justice generally if a party could, by the making of a complaint about a judicial officer, whether in good or bad faith, thereby create a situation where that judicial officer was obliged to recuse him or herself.[6]
[5]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[6]Ibid 348 [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Mr Kuksal also submitted that I should recuse myself for actual bias. That application could not be determined, he submitted, however, without there first being an evaluation of whether or not his complaints were made in good faith and if so whether the complaints were valid. This would require the calling and evaluation of evidence. This exercise could not be engaged in by me, he submitted, because I could not be a judge in my own cause. If the complaints were not made in good faith, then he should be charged with contempt. The effect of such an approach, if correct, would mean that another judge of this Court would have to hear and determine the allegations made against me that are before IBAC before this proceeding could continue. The extent to which such an approach would be contrary to the interests of justice generally is patent.
I do not accept that the application that I recuse myself for actual bias must be determined in that way. I consider that an application that I recuse myself for actual bias should be determined by me in the ordinary way.
Mr Kuksal then clarified that he was not intending, today, to make an application that I recuse myself for actual bias, but was only anticipating making such an application and that he wished to file material in support. In those circumstances, I will make some directions for the filing by him of affidavit material and submissions on the application that I recuse myself for actual bias. On receipt of that material, I will determine whether to decide the application on the papers or to have an oral hearing. I will not recuse myself in the meantime.
C. The proposed subpoenas
As noted above, Mr Kuksal, Mr Ansell and Ms Xu wish to file subpoenas in this proceeding. On 19 February 2024, I ordered that any draft subpoenas be provided to my chambers along with a document setting out the applicable legal principles on 1 March 2024. Mr Kuksal, Mr Ansell and Ms Xu are involved in other proceedings in which they have also sought to file subpoenas. Some proposed subpoenas for issue in this proceeding were provided on 1 March 2024.
It is necessary to refer to some background. On 20 August 2022, the Board appointed Mr Howard Rapke as a manager of Erudite Legal pursuant to its powers under sch 1 of the Legal Profession Uniform Law Application Act 2014 (‘the Uniform Law’). Mr Kuksal, Mr Ansell and Ms Xu, again speaking loosely, have not accepted the legitimacy of his appointment and contend that the Board and those it has appointed to manage or to look into their conduct or the conduct of Erudite Legal have acted improperly. They contend, as I understand it, that the Board’s involvement had its genesis in unfounded (and malicious) complaints made by an ex-employee to Victoria Police.
The draft subpoenas that they have produced are addressed to:
(a) The Victorian Legal Services Commissioner. If issued, it would require her to produce all documents over a three year period ‘generated, shared or received by her’ in relation to Mr Kuksal, Mr Ansell, Ms Xu, People Shop Pty Ltd, Avant-Garde Logistics Solutions Pty Ltd, Freight Xpress Pty Ltd and Renaissance Man Pty Ltd, unredacted versions of some documents, and all documents concerning costs incurred by the Board arising out of various investigations including its investigations of Mr Kuksal, Mr Ansell, Ms Xu and other entities mentioned;
(b) The Chief Commissioner of Victoria Police. If issued, it would require him to produce documents that relate to (among other things): an arrest of Mr Kuksal; a family violence safety notice issued to Mr Kuksal by a police officer; complaints made to the police about Mr Kuksal; body-worn camera footage; CCTV recordings of peoples’ attendance at police stations; notes taken by police officers; all documents relating to a proceeding in the Magistrates’ Court of Victoria involving Mr Kuksal; and unredacted correspondence.
I have attached redacted copies of the schedules to the subpoenas, setting out the categories of documents sought, as appendices to these reasons.[7]
[7]I made redactions to preserve the confidentiality of the ex-employee’s name.
Mr Kuksal, Mr Ansell and Ms Xu contended that I should, indeed must, issue the subpoenas, that to not do so would be ‘inconsistent’ with my granting of my leave in a related proceeding, and that it should be left to the proposed respondents to apply to have them set aside (if they wish to do so). They submitted that whether there was a legitimate forensic purpose for the issuing of the subpoena was not a question for the Court ‘at this stage’. They submitted that I may only refuse to issue the subpoenas if I am satisfied that they are, on their face, so clearly an abuse of process that their issue would bring the administration of justice into disrepute (an example was given of a subpoena addressed to a government official in Papua New Guinea). In an associated submission, they contended that (absence extraordinary circumstances) it is not for me to decide whether or not the proposed subpoenas are oppressive, as that may only be evaluated on the basis of evidence and submissions put in by the respondents to the subpoena.
I disagree. I am satisfied that the Court has power, in the exercise of its inherent jurisdiction, not to allow the subpoenas to be issued if it forms the view that the proposed subpoenas would be an abuse of process. Further, the subpoenas they seek to have issued would require the production of documents prior to trial. Because Mr Kuksal, Mr Ansell and Ms Xu are not legally represented, they cannot avail themselves of the ‘early return’ subpoena process provided for in ord 42A of the Supreme Court (General Civil Procedure) Rules 2015. They are, in effect, seeking a return date from the Court in accordance with r 42.03(6) of the Supreme Court (General Civil Procedure) Rules 2015. I am called upon to make a decision on whether they should be issued. It follows that I am able to decide not to permit their issue if I consider that is the appropriate course.
It is accepted that neither Mr Kuksal nor Ms Xu have qualifications that would permit them to engage in legal practice. The Uniform Law prevents even a qualified lawyer from engaging in legal practice if they do not have a valid practising certificate. Whether Mr Ansell is permitted to engage in legal practice depends on whether he has a practising certificate. The issues that therefore arise in this case are:
(a) Whether there is a sufficient risk that Mr Kuksal and Ms Xu will attempt to associate themselves with Erudite Legal to justify the making of an injunction; and
(b) Whether Mr Ansell is entitled to engage in legal practice and if not whether there is a sufficient risk that he will to justify the making of an injunction that he not.
The defendants seek to have the subpoenas filed because they want to contend that the Board has acted maliciously and unlawfully and pursuant to a conspiracy to cause harm and accordingly that its cancellation or revocation of Mr Ansell’s practising certificate, or its failure to renew that practising certificate, is invalid with the result that Mr Ansell is and has always been able to engage in legal practice. The subpoenas are directed at obtaining documents that they say will reveal this malicious and unlawful conduct.
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.
Accordingly, the determination of this proceeding does not call for adjudication on: whether the Board is engaged in a conspiracy to harm the defendants; whether the Board was right or wrong to appoint managers to Erudite Legal; whether Mr Rapke or other appointees acted properly or improperly; whether the Board has spent a lot of money in its dealings with Mr Kuksal; whether Mr Kuksal has been mistreated by the Police; whether people have made unfounded complaints against him; or whether Mr Kuksal has been mistreated in the Magistrates’ Court of Victoria. Argument to that effect are simply not relevant. This proceeding is not an inquiry into the conduct of the Board, the police, the Magistrates’ Court or the ex-employee who complained to the police. Any attempt by the defendants to raise those matters in this proceeding could only unnecessarily and improperly distract from the issues that are raised in this proceeding and cause unnecessary cost and delays for all concerned.
For these reasons, I am not persuaded that there is any legitimate forensic purpose for the subpoenas. I am satisfied that the subpoenas, if issued, would be an abuse of the Court’s processes. It is not on the cards that they will assist the defendants in determining the issues that properly arise for determination. In my view, the position is sufficiently clear that the interests of justice require that the subpoenas simply not be issued.
I am also satisfied that the breadth of the subpoenas makes them oppressive and that their issue would add unnecessarily to the cost of and cause delays in this proceeding. I reject the defendants’ submission that the Court is not able to assess the oppressive nature of a subpoena in the absence of evidence and submissions from the subpoenaed party. That may often be the case,[8] but it is not an absolute rule. The Court’s ability to control its own processes to avoid abuses of process is unfettered.
[8]See, eg, R v Eastman (No 14) [2017] ACTSC 66, where Kellam AJ had regard to the ability of the police to identify documents in circumstances where it was suggested that the categories were too broad.
I will make an order dismissing the oral application made by Mr Kuksal, Mr Ansell and Mr Xu to have the subpoenas issued.
D. Protective costs order
As noted, Mr Kuksal, Mr Ansell and Mr Xu also sought leave to file a summons seeking a ‘protective costs order’. I will not require them to file a summons.
I will make directions for the filing and service by the defendants of affidavit material and submissions in support of their application, and for the Board to file and serve any affidavit material and submissions in response. I will then determine whether to decide that application on the papers, or to have an oral hearing.
E. Stay pending the determination of a related proceeding
Mr Kuksal, by his proposed summons and orally, indicated that he wished to apply for a stay of this proceeding until the hearing and determination of another proceeding between him and, among others, the Board. That application was not argued this morning. I will not require the filing of a summons. I will make orders for the exchange of material for the purpose of determining that application. Again, I will then determine whether to decide that application on the papers, or to have an oral hearing.
F. Directions for the hearing of the amended originating motion
I will otherwise make orders for the exchange of material and for the setting down of this proceeding for final hearing.
G. Other issues
Some other issues arose. Ms Xu sought:
(a) an order that certain people swear the affidavit material relied on by the Board;
(b) an order that the Board file new Form 4A Certification of prior overarching obligations certification and Form 4B Proper basis certification ; and
(c) clarification from the Board as to what sections of the Uniform Law they relied on.
When I queried whether I had the power to direct the Board as to who must swear the affidavits upon which it relied, it became apparent that Ms Xu was concerned that hearsay evidence not be relied on. I said that that would be recorded in ‘other matters’. Counsel for the Board said that consideration would be given to the question of filing new certificates in light of the amendments made to the originating motion. And I indicated to the Board that they must make it clear, in their submissions, what sections of the Uniform Law they relied on.
In the orders I set out below, I include limits on the length of affidavit material and submissions that may be filed. I consider I have the power to impose such limits. The defendants have previously submitted to the contrary.
H. Disposition
I will make the following orders:
Application for recusal
1. The defendants’ application for recusal on the grounds of apprehended bias be dismissed.
Subpoenas
2. The application for the issue of the draft subpoenas addressed to the Victorian Legal Services Commissioner Fiona McLeay dated 1 March 2023 and to the Chief Commissioner of Victoria Police Shane Patton dated 1 March 2023 be dismissed.
Application for recusal – actual bias
3. The defendants file and serve any affidavits, not exceeding 50 pages in length and 100 pages of exhibits, and a written submission not exceeding 20 pages in length, in support of their application that Gorton J recuse himself on the grounds of actual bias on or before 4pm on 14 June 2024.
4. The plaintiff file and serve any affidavits, not exceeding 50 pages in length and 100 pages of exhibits, or written submission, not exceeding 20 pages in length, in response to the application that Gorton J recuse himself on the grounds of actual bias on or before 4pm on 19 June 2024.
Application for a Protective Costs order
5. The defendants file and serve any affidavits, not exceeding 50 pages in length and 100 pages of exhibits, and a written submission not exceeding 20 pages in length, in support of their application for a protective costs order on or before 4pm on 14 June 2024.
6. The plaintiff file and serve any affidavits, not exceeding 50 pages in length and 100 pages of exhibits, or written submission, not exceeding 20 pages in length, in response to the application for a protective costs order on or before 4pm on 21 June 2024.
Application for a stay
7. The defendants file and serve any affidavits, not exceeding 50 pages in length and 100 pages of exhibits, and a written submission, not exceeding 20 pages in length, in support of their application for a stay on or before 4pm on 14 June 2024.
8. The plaintiff file and serve any affidavits, not exceeding 50 pages in length and 100 pages of exhibits, or written submission, not exceeding 20 pages in length, in response to the application for a stay on or before 4pm on 21 June 2024.
Directions for trial
9. The plaintiff file and serve any affidavits on which it seeks to rely in support of its amended originating motion, not exceeding 50 pages in length and 100 pages of exhibits, on or before 4pm on 21 June 2024.
10. The defendants file and serve any affidavits on which they seeks to rely in opposition to the amended originating motion, not exceeding 50 pages in length and 100 pages of exhibits, on or before 4pm on 12 July 2024.
11. The plaintiff file and serve written submissions, not to exceed 20 pages in length, on which it seeks to rely in support of its amended originating motion on or before 4pm on 19 July 2024.
12. The defendants file and serve written submissions, not to exceed 20 pages in length, on which they seeks to rely in opposition to the amended originating motion on or before 4pm on 26 July 2024.
13. The proceeding be listed for hearing on 1 August 2024 on an estimate of three days.
14. In the event that either party wishes to rely on affidavit material in support of or in opposition to the amended originating motion that exceeds the page limits set out above, they shall file and serve by 4pm on 29 July 2024 such additional affidavit material on which they wish to rely together with a submission of not greater than 10 pages setting out the reasons for which leave should be granted to rely on that additional affidavit material.
Costs
15. Costs reserved.
I will note in ‘other matters’ that:
(a) The defendants have informed the plaintiff that they may object to hearsay evidence being led at the hearing of the amended originating motion.
(b) The plaintiff is to give consideration to whether it is obliged, or ought, to file fresh Forms 4A or 4B prescribed by the Supreme Court (General Civil Procedure) Rules 2015 in light of the amendments made to its originating motion.
(c) The Court will decide whether to determine the actual bias recusal application and/or the application for a protective costs order on the papers or to have an oral hearing, and that 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.
(d) The parties may not assume that they will be given leave to rely on additional material filed in accordance with para 14 of this order and should be prepared to argue the matter even if they are not given such leave.
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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