VLSB v Kuksal & Ors (Recusal Applications) - [2022] VSC 648

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2022 03994

VICTORIAN LEGAL SERVICES BOARD	Plaintiff
v
SHIVESH KUKSAL (and others according to the attached Schedule of Parties)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	20-21 October 2022
DATE OF RULING:	28 October 2022
CASE MAY BE CITED AS:	VLSB v Kuksal & Ors (Recusal Applications)
MEDIUM NEUTRAL CITATION:	[2022] VSC 648

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PRACTICE COURT – Injunctions – Application for injunction by Victorian Legal Services Board – Interim statutory injunction – Applications to recuse by Defendants – Restraint of Defendants from obstructing Manager appointed to legal practice – Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 s 447(5) – Injunction granted pending conclusion of hearing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S Senathirajah KC L Kirwan	Corrs Chambers Westgarth
For the First Defendant	Shivesh Kuksal, self-represented
For the Second Defendant	Peter Ansell, self-represented
For the Third Defendant	Maria Di Gregorio, self-represented
For the Fourth Defendant	Lulu Xu, self-represented

HER HONOUR:

The Victorian Legal Services Board (VLSB) has brought an urgent application in the Practice Court for interlocutory relief. The relief is sought against four defendants associated with an incorporated legal practice operated by People Shop Pty Ltd trading as Erudite Legal (the law practice). The summons dated 7 October 2022 was made returnable on 13 October 2022 but rescheduled to 20 October 2022 (the injunction proceeding). These reasons deal with preliminary applications that I recuse myself from hearing and determining the injunction proceeding. I refused the first recusal application made on the first day of hearing and indicated that I would provide reasons in due course.[1] During the remainder of the hearing at least four further applications for recusal,[2] and at least a further 25 statements asserting prejudicial conduct by the judge,[3] were made by one or other of the defendants as recorded on the transcript. These reasons deal compendiously with all recusal issues raised on 20 and 21 October 2022.
[1]Transcript of Proceedings, Victorian Legal Services Board v Kuksal & Ors (Supreme Court of Victoria, S ECI 2022 03994, Justice Forbes, 20 – 21 October 2022) 88.13-17 (‘T’).
[2]T 39.14-42.9; T 139.29-140.5; T 182.16-23; T 190.20-26.
[3]T 29.10-18; T 32.15-16; T 33.15-20; T 39.14-21; T 40.5-15; T 40.27-42.9; T 42.21; T 43.18-27; T 44.9-21; T 55.12-23; T 56.5-14; T 58.7-12; T 63.6-16; T 66.13-16; T 67.1-6; T 144.1-8; T 145.7; T 149.24-28; T 152.25-29; T 181.23-25; T 183.4-6; T 191.7-17; T 194.23-199.29; T 203.18-30; T 204.23-27.

At a mention on 14 October 2022, orders were made setting a timetable for the provision of affidavit material and written submissions. Prior to the mention the first defendant, Shivesh Kuksal (Kuksal), sent an email to the judge’s chambers on 11 October 2022, corresponding as the ‘General Manager’ Erudite Legal on behalf of the defendants, foreshadowing an application that I recuse myself from hearing any application by the VLSB on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 648
Decision Date: 28 October 2022

CaseChat Overview and Summary

The Victorian Legal Services Board (VLSB) applied for an interim statutory injunction against Kuksal and others to prevent them from obstructing the appointed Manager of their legal practice. The application was made under the Legal Profession Uniform Law Application Act 2014 (Vic) and sought to restrain the defendants from interfering with the Manager's duties. The defendants filed applications for the recusal of the judge hearing the matter, citing concerns about bias. The matter was heard in the Supreme Court of Victoria.

The court had to decide whether the judge should recuse themselves from hearing the application for the injunction. The defendants argued that the judge was biased because of a perceived connection with the VLSB. The court considered the arguments for recusal and assessed whether there was a real danger of bias. The court examined the relationship between the judge and the VLSB, as well as any statements made by the judge that could suggest bias.

After considering the evidence and arguments, the court found no grounds for the judge to recuse themselves. The court concluded that there was no real danger of bias and that the judge could fairly hear the application. The court granted the injunction, restraining the defendants from obstructing the Manager's duties pending the outcome of the hearing. This decision ensured that the Manager could carry out their role without interference while the application proceeded.

The court ordered that the defendants were restrained from obstructing the Manager appointed to their legal practice. The injunction was to remain in effect until the conclusion of the hearing of the application. This decision allowed the Manager to perform their duties without hindrance, while the court considered the broader issues in the case.

Orders