Kuksal v Victorian Legal Services Board

2 On 2 December 2024, I ordered the defendants to file and serve material in support of their application for costs by 20 December 2024 and the first, third and fifth plaintiffs to file and serve any material in response by 17 January 2025. I also ordered the first, third and fifth plaintiffs to file and serve by 17 January 2025 any submissions in support of a foreshadowed application for my recusal.[3] I indicated that unless I directed otherwise the applications for costs and for recusal would be determined on the papers and that the parties could include, in the written submissions filed, any submissions by which they sought an oral hearing.

3 The defendants filed material in accordance with my order. They did not seek an oral hearing. No material was filed by the first, third or fifth plaintiffs. I treat the proposed recusal application as abandoned and make this costs ruling following receipt of only the defendants' material.

4 By an originating motion filed on 29 September 2022 headed 'Originating Motion for Judicial Review', Mr Shivesh Kuksal, Ms Maria Di Gregorio, Ms Lulu Xu, People Shop Pty Ltd and Mr Peter Ansell (the first to fifth plaintiffs respectively) sought extensive relief against the Victorian Legal Services Board ('the Board'), Mr Damian Neylon, Mr Gordon Cooper and Mr Howard Rapke (the first to fourth defendants respectively).[4] The relief sought stemmed from the Board having taken action under the Uniform Law[5] against People Shop Pty Ltd by appointing Mr Neylon as auditor, Mr Cooper as investigator and Mr Rapke as external manager to People Shop Pty Ltd's legal practice, Erudite Legal.[6] On 3 November 2022, the plaintiffs filed a further amended summons ('the plaintiffs' summons') that added to the relief that the plaintiffs sought.[7]

5 People Shop Pty Ltd is not represented by a solicitor.[8] Mr Kuksal owns and has owned, directly or indirectly, the shares in People Shop Pty Ltd. Ms Xu has been a director of People Shop Pty Ltd and is its company secretary. Mr Ansell is a lawyer associated with People Shop Pty Ltd and since 18 October 2022 has been its sole director.

6 On 2 November 2022, the defendants filed a summons by which they sought that the plaintiffs' claims be struck out or stayed or summarily dismissed ('the defendants' strike out application'). The defendants amended that summons on 20 May 2024. As noted above, on 27 November 2024 I struck out most of the originating motion and published reasons for doing so. The two items not struck out were:

(a) Paragraph 1 of the plaintiffs' summons, which I determined was to be read as if the relief sought therein were contained in the originating motion; [9] and

(b) An (un-numbered) item seeking an extension of time pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 to apply for judicial review.[10] This was required to give effect to the above determination regarding paragraph 1, as the originating motion was not filed within 60 days of the decisions the plaintiffs sought to review, as required by r 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015.

7 As noted above, these reasons concern the costs of that application.

8 A Notice of Discontinuance was filed on 8 December 2023 by the second plaintiff Ms Di Gregorio (leave to do so had been granted the previous day). When I hereafter refer to the plaintiffs, I do not include a reference to Ms Di Gregorio. My reference to the plaintiffs otherwise includes People Shop Pty Ltd, for convenience, but is not intended to amount to any grant of a dispensation from the requirement that People Shop Pty Ltd take step by a solicitor, or to validate any step taken or purported to have been taken by it other than by a solicitor.

B.1 The plaintiffs should be ordered to pay the defendants' costs

9 There were approximately 93 grounds contained within the 29 September 2022 originating motion when read with the plaintiffs' summons. The defendants enjoyed substantial success, having all but 1 ground and the application for an extension of time struck out. Costs should follow the event. I am satisfied that the plaintiffs should be ordered to pay the defendants' costs of their application.

B.2 Should costs be ordered on the indemnity basis?

10 I have set out the relevant procedural background in my previously published reasons.[11] I will not repeat it all here, but these reasons should be read with my earlier reasons.

11 The originating motion and summons were formulated in such a way as to constitute an effort to embark on a judicial inquiry into all or nearly all aspects of the plaintiffs' dealings with the Board and those whom the Board appointed, rather than seeking to have determined an identified legal controversy. The majority of the grounds contained in the originating motion and summons were embarrassing in the legal sense. The plaintiffs also sought declarations in order later to rely upon them, either directly or as some form of issue estoppel, to obtain secondary relief in separate proceedings. I held this to be an abuse of process and that there was no real prospect that a court would grant such declarations.[12]

12 I consider that the plaintiffs have acted unreasonably, that properly advised they would not have drawn the originating motion the way they did or opposed the defendants' application, and that their arguments and approach to the litigation have put the defendants to unnecessary costs. Accordingly, the costs of the defendants' strike out application should be paid on the indemnity basis, subject to the below further considerations.

13 The defendants seek a gross sum to be assessed pursuant to r 63.07 of the Supreme Court (General Civil Procedure) Rules 2015. Rule 63.07 states as follows:

(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 a manner as the Court directs.

14 The chief purpose of the Court's jurisdiction to make a fixed costs order is to 'avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation.'[13] In Giurina v Greater Geelong City Council,[14] the Court of Appeal said:

The Court may award a gross sum of costs in order to avoid the expense, delay, and aggravation involved in protracted litigation arising out of taxation. This involves a broad brush approach, without the rigour and precision of the process of taxation, however, the Court should be confident that the approach taken to the estimate of costs is logical, fair and reasonable.[15]

15 The defendants seek a fixed costs (or gross sum) order in circumstances, they submit, where the costs of taxation would unduly add to the costs of litigation. They submit the plaintiffs have acted unreasonably in the proceeding generally, and the Court should conclude that the process of taxation is likely to be more costly and drawn out than would otherwise normally be the case. Additionally, the defendants submit that they are unlikely to recover any costs incurred in a taxation process. As evidence of their submission that they are unlikely to recover costs of any taxation, the defendants exhibited to an affidavit a letter of demand, dated 8 March 2024 addressed to each of the plaintiffs seeking payment of previous costs orders made against the plaintiffs, that has gone unanswered. Those costs orders include:

(a) orders dated 7 September 2023, in this proceeding, in the amount of $9,480.82;

(b) orders dated 7 September 2023, in another matter involving some parties to this proceeding, in the amount of $5,189.96;

(c) orders dated 19 February 2024, in a related (now finalised) matter Victorian Legal Services Board v Kuksal, in the amount of $14,464.22; and

(d) orders dated 8 March 2024, in this proceeding, in the amount of $19,040.90.

16 I accept there is a substantial likelihood that any taxation of costs is likely to be costly, time-consuming and will further increase the costs of the litigation. I also accept, based on the evidence placed before me, that there is a real prospect that the defendants will be unable to recover, or will face difficulty recovering, the costs of any taxation.[16] I consider there is utility, to the extent possible, in cutting what I anticipate would be 'the Gordian knot of protracted fights about costs', to borrow the language of Justice Rares in Keen v Telstra Corporation Ltd (No 2).[17] For these reasons, I propose to fix costs, to the extent that I am satisfied it may be done on the material provided and that the amount fixed is fair and reasonable.

D. What approach should be taken to fixing costs?

17 In arriving at a figure for a fixed cost order, the Court must 'be confident that the material before it enables it to make a sufficiently reliable calculation or estimate of an appropriate cost sum'.[18]

18 Mr Ben Davidson is a partner at Corrs Chambers Westgarth, the solicitors for the defendants, and has carriage of the matter. He deposed that the defendants have incurred $149,336.82 in costs 'with respect to the proceeding', divided across three broad categories (all exclusive of GST):

(a) $111,858.90 in Corrs Chambers Westgarth's fees;

(b) $31,064.26 in counsel's fees; and

(c) $6,413.66 for 'other disbursements... such as transcript and court fees'.

19 Mr Davidson provided what he described as a conservative estimate of a further $7,017.00 in costs for the preparation of the defendants' costs application, with a breakdown of the hourly rates of four solicitors and the hours they worked respectively on the costs application.[19]

20 Mr Davidson did not exhibit Corrs Chambers Westgarth's invoices out of a concern that doing so would result in a waiver of legal professional privilege. He described the work done at a high level, while noting that the bills themselves (not produced) contained 'granular narrations for each discrete item of legal work'. No invoices for transcript costs, counsel fees or itemised bills detailing legal services were provided, but Mr Davidson's affidavit included a table of the rates of counsel briefed and the days on which they attended hearings. It also included a table with a column titled 'Disbursements' without any further description, but elsewhere in the affidavit was said to include at least transcript and court fees. The defendants were, it was clear, inviting the Court, if concerned by these figures, to apply a discount to the extent thought appropriate.

21 One difficulty with Mr Davidson's affidavit, however, is that it does not satisfy me that the work claimed was all properly referable to the defendants' costs of this particular application, and was not instead referable to the proceeding generally or to the other issues that arose in the conduct of the proceeding. It must be remembered that I am here concerned with the costs of the defendants' application only, not the proceeding more generally or the costs of other applications brought by the plaintiffs: the defendants' strike out application did not succeed in striking out the entire proceeding, and it was addressed at 'issues of form' rather than the merits of the plaintiffs' claims.[20] Mr Davidson summarised the defendants' actual monthly costs incurred without providing any further analysis as to which of those costs were referable to the defendants' application rather than to the proceeding more generally. Mr Davidson also referred to the costs of the preparation of affidavits sworn by Mr Matthew Anstee on 30 November 2022 and 24 May 2024, the costs of 'reviewing and responding to the various applications made by the plaintiffs', and of each attendance before the Court. Notwithstanding that those affidavits provided valuable context to the proceeding generally, I do not see those affidavits as being referable in particular to the defendants' strike out application, and some of the attendances at least would have been occasioned regardless of whether or not the defendants had made this application. Similarly, I am not here concerned with the costs of 'the various applications made by the plaintiffs'.

22 In those circumstances, I will not fix costs in the amounts set out in Mr Davidson's affidavit. I will instead identify those items of work clearly attributable to the defendants' application and, if I am able to do so by reference to Mr Davidson's affidavit, fix a cost for those items. Where I am not satisfied, from the high-level evidence relied on by the defendants, even in the absence of any material from the plaintiffs, as to the nature or appropriateness of the fee claimed, I will not fix costs.

23 To the extent that the defendants have incurred costs in their application beyond those that I fix, and the defendants wish to recover those costs and a dispute arises with the plaintiffs in relation to them, then those costs will have to go to taxation. I am not saying that the costs set out in Mr Davidson's affidavit are excessive or would not be recoverable in a taxation: all I am saying is that I am not sufficiently satisfied on the material before me that costs in the amounts identified would be payable to feel comfortable fixing a gross sum so as to avoid the need for a taxation. This is so even despite the possibility of applying thereafter some general discount. I will clarify in my order that, in this sense, the amounts I fix do not operate as ceilings on the amounts recoverable.

E. The work clearly associated with the defendants' strike out application

24 As noted above, I have set out the procedural background to this matter in my decision regarding the defendants' strike out application.[21] As these reasons concern only the costs of the defendants' application by summons filed 2 November 2022, as amended on 20 May 2024, it is not necessary to repeat all of that here, but, again, these reasons should be read with those reasons. The outline below is limited to the background as it concerns the defendants' summons.

25 On 2 November 2022, the defendants filed their summons for their strike out application. It was returnable for a directions hearing before Judicial Registrar Keith on 9 November 2022. On 18 November 2022, the defendants filed a submission in support of their strike out application. For reasons set out in my earlier reasons, there were then delays before the summons was listed for hearing.[22]

26 On 7 September 2023 it was ordered that the defendants' strike out application be set down for hearing on 5 December 2023 (along with a summons filed by the plaintiffs). The hearing of these two summonses did not proceed on 5 December 2023. Instead, in late November 2023 the plaintiffs communicated to my chambers that they wished to apply for an order that I recuse myself, for leave to file additional affidavit material, and to issue subpoenas. I directed them to provide, among other things, a written submission setting out the reasons for which the subpoenas were required and why they had not been sought earlier. The plaintiffs did not do so. On 4 December 2023, the plaintiffs filed a summons in which they sought orders that they be released from Harman undertakings associated with documentation obtained by them in the course of another hearing,[23] leave to amend their originating motion, and my recusal. This summons was argued on 5 December 2023. On 11 December 2023, I dismissed the applications made in that summons.[24] On 8 March 2024 I published reasons addressing the costs of the 5 December 2023 hearing.[25]

27 The proceeding came on for mention on 17 May 2024. Among other things, I gave the defendants leave to file and serve an amendment to their strike out application, which was, as noted above, filed on 20 May 2024.

28 Following my publishing of a further interlocutory ruling,[26] on 18 July 2024 I ordered, among other things:

(a) The defendants to file and serve written submissions in support of their strike out application on or before 7 August 2024;

(b) Mr Kuksal, Ms Xu and Mr Ansell to file and serve submissions in opposition to the defendants' strike out application on or before 19 August 2024;

(c) The defendants' strike out application be set down for hearing on 26 August 2024; and

(d) Any further application by the plaintiff's for my recusal at any mention or hearing be made on notice and having first served written submissions no less than 3 working days prior to the mention or hearing setting out the reasons for which the recusal is sought.

29 The defendants filed a written submission on 7 August 2024 in accordance with my orders. Neither Mr Kuksal, Ms Xu nor Mr Ansell did so.

30 On 26 August 2024, the defendants' strike out application came on for hearing. Ms Xu and Mr Ansell, I was told, had symptoms consistent with their having COVID-19. Mr Kuksal appeared and applied, orally, for an order that I recuse myself, without having first provided notice or filed written submissions, contrary to orders I had made on 18 July 2024 orders that any recusal application be made in writing and on 3 days' notice.

31 On 27 August 2024, Mr Kuksal and Ms Xu appeared remotely. Mr Kuksal told me that he had that morning also developed symptoms consistent with his having COVID-19 and so was isolating. There was some trouble with the visual link but a good audio link was able to be established with Mr Kuksal and Ms Xu. Mr Ansell later joined the audio link. I dismissed the applications for recusal, reserved the costs of 26 August 2024, and published reasons.[27] Mr Kuksal and Ms Xu then applied for an adjournment. I took Mr Ansell to be joining in that application. I indicated that, in order to prevent the day being wasted, I would permit the defendants to present their argument that day but would not require Mr Kuksal, Ms Xu or Mr Ansell to respond that day.

32 The defendants presented their argument. I ordered Mr Kuksal, Ms Xu and Mr Ansell to file and serve a written submission by 4.00pm on 11 September 2024, and adjourned the further hearing of the defendants' strike-out summons (that is, the plaintiffs' submissions in response and any reply by the defendants) to 16 September 2024. The parties, including Mr Kuksal, Ms Xu and Mr Ansell, were provided by the Court with a transcript of the 27 August 2024 hearing. On 12 September 2024, I varied those orders to require that Mr Kuksal, Ms Xu and Mr Ansell file and serve a written submission by 4.00pm on 16 September 2024, and listed the further hearing for 1 October 2024.

33 Neither Mr Kuksal, Ms Xu nor Mr Ansell filed a written submission prior to the matter being called on 1 October 2024. No proper explanation was given for their failure to do so.

34 Mr Kuksal, Ms Xu and Mr Ansell appeared in person. Mr Kuksal sought to make an oral application that I recuse myself. Ms Xu and Mr Ansell confirmed that they joined in this proposed application. I indicated to Mr Kuksal that I would not then hear an oral application for recusal. I directed that any application for recusal be made by written submission filed and served by 4.00pm on 2 October 2024, and advised that I would proceed to hear the plaintiffs' submissions in opposition to the defendants' application in the meantime. I also advised that I would not determine the defendants' application until first considering any recusal application.

35 The matter proceeded, over the plaintiffs' objection, on 1 October 2024. I have set out in some detail in my earlier reasons some of the issues that arose that day with the orderly hearing of the application.[28] Due to the issues that arose, the hearing was unable to be completed on that day. I therefore granted the defendants leave to put their reply submissions in writing, which they did on 15 October 2024.

36 No written submission in support of the recusal application was filed.

37 As previously noted, on 27 November 2024 I published my reasons for determining the defendants' strike out summons.[29] The ruling took place by audio-visual link, where a Corrs Chambers Westgarth solicitor appeared for the defendants and there was no appearance for the plaintiffs. I then listed the matter for mention on 28 November 2024 including for the purpose of considering the question of costs. That day was later changed to 2 December 2024.

E.6 2 December 2024 - Mention to consider the determination of costs

38 The mention proceeded in-person but with Mr Ansell appearing by way of audio-visual link. At the opening, Mr Kuksal indicated he intended to make, on behalf of the plaintiffs, oral submissions in support of a further recusal application. I reminded Mr Kuksal that this mention was his opportunity to make submissions on the matters discussed, those matters being costs and what further orders should be made regarding what remained of the plaintiffs' originating motion. Mr Kuksal declined to discuss those matters unless he was granted leave to make oral submissions on a recusal application. He persisted in presenting oral argument only in support of a recusal application. I informed him that I would treat his refusal as waiving his right to address me on costs and what further orders should be made regarding what remained of the plaintiffs' originating motion. It became clear that Mr Kuksal was not going to allow the mention to proceed in an orderly manner and I had Mr Kuksal removed from the courtroom.

39 I proceeded to hear Ms Xu and Mr Ansell on the determination of costs for the defendants' strike out summons and what further orders should be made regarding the remainder of the plaintiffs' originating motion. After hearing argument, I made orders including that the defendants file and serve any submissions and material in support of an application for costs by 20 December 2024, and that the first, third and fifth plaintiffs file and serve any submissions and material in response by 31 January 2025.

40 On 20 December 2024 the defendants filed submissions and an affidavit in support of the current application. As noted above, no material addressing the costs application was filed by the plaintiffs, and no recusal application was filed.

F. Items of work that in respect of which the defendants are entitled to costs

41 In light of the above analysis, the defendants are entitled to costs, on the indemnity basis, which I will to the extent possible fix, of the following steps in their application:

(a) their costs of preparing and filing their summons and amended summons;

(b) the costs of the 9 November 2022 directions hearing before Keith JR (noting that the costs of the subsequent appeal of orders made at that directions hearing have already been dealt with);[30]

(c) their costs of preparing their 18 November 2022 written submissions;

(d) their costs of preparing their 7 August 2024 written submissions;

(e) their costs of appearing on 26 August 2024;

(f) their costs of appearing on 27 August 2024;

(g) their costs of appearing on 1 October 2024;

(h) their costs of preparing their 15 October 2024 submissions in reply;

(i) their costs of appearing at the ruling on 27 November 2024;

(j) their costs of appearing at the 2 December 2024 mention; and

(k) their costs of preparing their affidavit and submissions in support of the application for costs.

42 I am unable, on the information provided, to fix the costs of preparing these documents. I will however fix the costs of filing the defendants' 2 November 2022 summons. The Court fee for filing that summons was $1,188.00. I will accordingly fix $1,188.00 for filing fees.

F.2 The 9 November 2022 appearance and the 18 November 2022 written submissions

43 Mr S Senathirajah KC and Ms L Kirwan of counsel appeared for the defendants before Keith JR on 9 November 2022. They also signed the defendants' 18 November 2022 written submissions, which were detailed. The material provided establishes that Mr Senathirajah KC had an hourly rate of $545.45 and a daily rate for appearances of $5,454.55, junior counsel Ms Kirwan had an hourly rate of $327.00 and a daily rate for appearances of $3,272.73, and that counsel charged $8,590.91 in November 2022.

44 Although the material does not identify what part of counsels' fees relate to the appearance and what part relate to the drawing of the submissions, I am satisfied that the amount charged of $8,590.91 was properly chargeable for one or both of those matters, and so I will fix counsel's costs for those items in the amount of charged at $8,590.91.

45 Based on Mr Davidson's affidavit, I will fix counsels' fees as follows:

(a) Appearances on 26 and 27 August 2024 (Mr L McAuliffe) - $1,818.18 per day; and

(b) Appearance on 1 October 2024 (Mr L Hogan) - $3,500.00.

46 The defendants' 7 August 2024 submissions were signed by Mr McAuliffe. Counsel's fees for August 2024 were $4,636.36 in total. If the above fees for appearing on 26 and 27 August 2024 are taken into account, it seems an additional $1,000 was charged. I am satisfied that counsel's fees for drawing the 7 August 2024 submissions of at least that amount were incurred, and will fix $1,000.00 accordingly.

47 The 15 October 2024 submissions were signed by Mr Hogan. Mr Hogan's fees were deposed to be $350.00 per hour and $3,500.00 per day. Counsel's fees totalling $14,000.00 were charged for October 2024. That, presumably, includes, at least, Mr Hogan's appearance on 1 October 2024 and drawing the submissions in reply. The affidavit did not state that all of those fees were charged by Mr Hogan. In the absence of some further evidentiary material directed at the point, I am not prepared to assume, or to infer, for the purpose of fixing costs, that Mr Hogan charged a fee of $11,500.00 for preparing the submissions in reply.

48 That said, I am satisfied that drawing the submissions in reply would have taken at least half a day. I am prepared to fix the costs of preparing the 15 October 2024 submissions at $1,750.00 (being half of Mr Hogan's daily fee).

49 As noted above, a solicitor of the first defendant appeared at the hand-down of my ruling of the defendants' summons. I have no information in the Davidson affidavit beyond the total solicitors' fees for the month of November 2024 (deposed to be $8,748.20), and the hourly rate for that lawyer being $300.00. The time in Court was short, although the solicitor would have had to have prepare for questions that may have arisen and then read the ruling. I am prepared, conservatively, to fix the cost of this appearance at $150.00.

F.7 The 2 December 2024 appearance and application for costs

50 Mr Hogan appeared at the 2 December 2024 mention. The mention was not entirely in relation to the defendants' application, but was also in relation to steps to be taken in order to progress that part of the proceeding that I did not strike out.

51 The submissions in support of the application for costs are not signed by counsel. Mr Davidson provided a 'conservative estimate' that the defendants' costs of the application for costs would be at least $7,017.00 (excluding GST).

52 Although it is clear that the 2 December 2024 mention was at least in part due to the defendants' application and that the defendants' have performed work, and incurred legal fees, in relation to the application for costs that would be recoverable, I do not propose to fix costs for that work. I am not sufficiently satisfied, on the material provided, that I can safely fix an amount. Those matter will have to go to taxation, if agreement cannot be reached.

53 The Davidson affidavit states that the following disbursements were incurred:

(a) $446.40 in June 2024;

(b) $1,109.88 in July 2024;

(c) $2,541.28 in August 2024;

(d) $2,131.12 in October 2024; and

(e) $184.98 in November 2024.

54 There are no exhibited transcript invoices. Mr Davidson's affidavit says only that the disbursements were disbursements 'such as transcript and court fees' that were said to be 'with respect to the proceeding' (rather than the application itself). The Court does not set the price for transcript. That said, there were no other court fees identified and defendants are clearly entitled to be indemnified in respect to their costs of obtaining transcript of the hearing dates referred to. Notwithstanding the lack of further detail, I am satisfied that the costs of obtaining the transcript of the hearings on 26 August 2024, 27 August 2024 and 1 October 2024, which were essentially full days of hearing, would have been at least $1,000 per day.[31] As noted in para 32 above, the Court provided the transcript of the 27 August 2024 hearing to the parties. I am prepared, conservatively, to fix the costs of transcript of the remaining days of hearing in the amount of $2,000.00.

55 As noted above, none of the above amounts, notwithstanding their being described as fixed or gross sum amounts, operate as ceilings on what the defendants may seek to recover in the event that a taxation proceeds for that item or otherwise.

1. The first, third and fifth plaintiffs pay the defendants' costs of their application by summons filed 2 November 2022 and amended on 20 May 2024.
2. The costs payable in accordance with para 1 above include the sum of $21,815.27 which is payable immediately, which is comprised of:

(b) $8,590.91 in counsel's fees for appearances in November 2022;

(c) $1,818.18 in counsel's fees for appearances on each of 26 and 27 August 2024;

(d) $3,500.00 in counsel's fees for appearance on 1 October 2024;

(e) $1,000.00 in counsel's fees for drawing submissions filed 7 August 2024;

(f) $1,750.00 in counsel's fees for drawing submissions filed on 15 October 2024;

(g) $150.00 for hearing the ruling delivered on 27 November 2024; and

(h) $2,000.00 in transcript fees for the hearings on 26 August 2024 and 1 October 2024.

1. If or to the extent to which the defendants seek to recover costs in addition to those fixed in para 2 above, those costs be taxed in default of agreement on the indemnity basis.

VICTORIAN LEGAL SERVICES BOARD (ABN 82 518 945 610)

[1] Kuksal v Victorian Legal Services Board [2024] VSC 732.

[2] As I set out below, the proceeding as between the second plaintiff and the defendants was previously dismissed by consent, and the fourth plaintiff is a company with no solicitor acting for it contrary to the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.17. The claims on foot against the defendants were brought by the first, third and fifth plaintiffs.

[3] Following a request by those plaintiffs, a further order made 11 December 2024 granted them leave to also file any accompanying affidavit material in support of an application for recusal.

[4] The full relief sought is set out in Kuksal v Victorian Legal Services Board [2024] VSC 732 at 9 [24] onwards.

[5] That is, sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).

[6] It also traded, on occasion, as New Edge Law.

[7] The plaintiffs had filed the original version of their summons on 26 October 2022, and an amended summons on 2 November 2022.

[8] See Kuksal v Victorian Legal Services Board [2024] VSC 732 at 20 [45] onwards.

[9] Kuksal v Victorian Legal Services Board [2024] VSC 732, 16 [36]; see also 32 [77(a)].

[11] Kuksal v Victoria Legal Services Board [2024] VSC 732.

[13] Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 120 [F] (von Doussa J).

[14] [2021] VSCA 341 (Giurina).

[15] Ibid [16] per Kennedy and Walker JJA and Macaulay AJA (citations omitted).

[16] See Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228; (2005) 215 ALR 788, 813 [194]-[195] (Jacobson J); Dunstan v Human Rights and Equal Opportunity Commission (No 3) [2006] FCA 916, [29] (Mansfield J); Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046, [6] (Tamberlin J).

[17] Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930, [6] (Rares J).

[18] Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11, [21] (Barrett J).

[19] For completeness, Mr Davidson deposed that the figure is 'at least' $7,017.00 (excluding GST).

[20] See Kuksal v Victorian Legal Services Board [2024] VSC 732, 19 [43]; see also 24 [56].

[21] Kuksal v Victorian Legal Services Board [2024] VSC 732.

[23] See Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[24] Kuksal v Victorian Legal services Board (Recusal Application) [2023] VSC 722.

[25] Kuksal v Victorian Legal Services Board (Recusal, Stay and Costs) [2024] VSC 78; see particularly 14 [33].

[26] Kuksal v Victorian Legal Services Board (Recusal, Summons and Subpoena) [2024] VSC 418.

[27] Kuksal v Victorian Legal Services Board (Further Recusal) [2024] VSC 508.

[30] See Kuksal v Victorian Legal Services Board (No 2) [2023] VSC 526.

[31] I am aware that transcript of a day's hearing costs at least that amount.