Plaintiff v Defendants

2 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 basis of my earlier decision in proceeding S ECI 2021 03189. The email elaborated the reasons for the proposed application.

3 At the mention orders were made requiring the defendants to file and serve a summons seeking my recusal and any affidavits in support and submissions by 4pm on 14 October 2022. At the mention Kuksal and the second defendant (Ansell) both advised the Court that the material for the recusal application was ready to be filed.[4] Despite this, the defendants have not complied with any aspect of those orders in respect of the recusal application they sought to bring. There has been no satisfactory explanation for the non-compliance.

4 Instead a further email to the Practice Court and copied to my chambers on 19 October 2022 after the close of business sought leave to file a summons in a different proceeding filed in the Judicial Review and Appeals List (S ECI 2022 04028, the judicial review proceeding). That summons sought various other relief and was sought to be returnable at 10am on 20 October 2022. Kuksal was informed that the summons would not be accepted for filing returnable in the Practice Court.

5 Kuksal nevertheless commenced to make a recusal application orally before me when he was requested to address other issues.[5] Insofar as the application was based upon what he described as 'a history of personally targeted comments against [Kuksal] in a previous hearing'[6] and an attempt to rely on matters contained in the transcript of that earlier hearing, I did not give leave for Kuksal to make that application.[7] I did so on the basis that he had not filed any material in accordance with the orders of the Court.

6 Insofar as his recusal application dealt with matters occurring in the hearing of the present application, the oral submissions failed to identify with any precision the conduct relied on. Rather Kuksal embarked upon an airing of his personal (and critical) opinions of the judge before whom he was presently appearing and concluded that he himself had no confidence in my ability to be impartial.[8] Kuksal made wide-ranging allegations of impropriety none of which had an evidentiary basis that had been properly put before the Court.

7 An affidavit of Maria Di Gregorio was sworn on 19 October 2022 and filed at 4:45am on the day of hearing. Maria Di Grigorio has sought leave to rely on that affidavit, and I have admitted it over an objection of relevance. I informed the defendants that they would need to establish the relevance of those parts of the affidavit upon which they relied in the injunction application.[9] Self-evidently that affidavit did not deal with any matters addressing the conduct of the hearing. It did not address any earlier matters relevant to the recusal applications.

8 Kuksal identified that, at the mention on 14 October 2022, I did not raise an earlier email he had sent to chambers identifying his objection as to the admission of the VLSB affidavit material and by not doing so I had prejudiced his rights. There is nothing in this point. These were matters that could have been addressed in the submissions that were ordered but not provided. In light of this opportunity, I do not accept that Kuksal was deprived of an opportunity to object to the admission of evidence. He filed no written material prior to the application and he failed to appear when the matter was called at the listed time. He has in any event been accorded an opportunity to argue those objections.

9 Kuksal also asserts some procedural unfairness arising out of the fact that the urgent matter he wished to have listed in the Practice Court in relation to the judicial review proceeding was not so listed. That matter was listed for directions at the earliest, non-urgent opportunity (26 October 2022) at which time the question of urgency of interlocutory relief could be properly argued.

10 Where apprehended bias is raised, the principles upon which a judge should act to recuse herself are clear. As summarised by the Court of Appeal in Doughty-Cowell v Kyriazis:

The bias rule is breached if a fair-mined lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The level of knowledge and sophistication which a fair minded observer hypothetically brings to the question is that of a lay person ( not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.[10]

11 As the High Court of Australia observed in Ebner v Official Trustee in Bankruptcy,[11] the test is that of possibility not probability. However, the possibility of actual or apprehended bias is one that must be real and not remote.[12] It was said:

Deciding whether a judicial officer ( or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter.

12 The test is applied in two steps. The first step identifies the conduct of the judge which is alleged to give rise to an apprehension of bias. The second step is to articulate the legal connection between the conduct or matter and the feared deviation from the course of deciding the case on its merits.[13] It is an objective determination.

13 The apprehension is that the judge will not decide the case impartially. It is not sufficient that there is a concern that the judge will decide the case adversely to a party.[14]

14 The hallmarks of conduct in an adversarial judicial process are understood by a fair-minded observer, including that judges may express tentative views in the course of argument, may on occasion say or do things that they may later wish they had not, and may adopt necessary measures to ensure proceedings are conducted without wasting court time and kept to appropriate limits.[15]

15 In considering such matters the authorities emphasise that a reasonable apprehension of bias must be firmly established.[16]

16 Equally, a judge should not disqualify herself except for proper reason and should not accede too readily to allegations of partiality or an apprehension of bias or act on some lesser measure that it would be 'better' for another judge to hear the matter.[17]

17 No evidence was put before the court upon which to base a recusal application by reason of the conduct of a previous hearing. No effort was made to even identify the relevant proceeding. From the context of the oral submission, I infer that the hearings were those which did not result in a grant of an interim injunction as disclosed by reasons published on 6 September 2021,[18] and the ruling I subsequently gave in respect of a second application that was made on 9 September 2021 after leave to appeal was refused.[19] None of the relevant transcript was in evidence and I did not permit Kuksal to read excerpts of that transcript.

18 Kuksal submitted that I had previously expressed a conclusion on a fact in issue that will be decided in the present application. He relied on British American Tobacco v Laurie,[20] amongst other authorities to submit that in previously refusing to restrain his then lawyer in respect of confidential information, I have in some way pre-judged some relevant factual matter that will fall to be determined in this application.

19 Otherwise the grounds of application were based in part upon Kuksal's subjective views of the judge's personality traits and in part upon his perception that the manner in which I had been conducting the hearing was prejudicial to the rights of himself and the other defendants as self-represented litigants.

20 Maria Di Gregorio expanded upon the submission that I had pre-judged the questions I had to decide in this case and expressed a view that the 'antagonism' between the bench and Kuksal led her to believe that she and the other defendants would not get a fair hearing before me.

21 Ultimately, even though I did not permit an application based upon the prior hearing to be made, Kuksal persisted in making submissions relevant to that application. He did not identify any particular comment in the published reasons that was adverse to him or that would indicate prejudgment. As the previous hearing was dealing with an interim injunction, findings of contested fact were not required, and it would be surprising if any concluded partisan or prejudicial comments were made. He otherwise contended, repeatedly, that he held a strong view that I was acting in a prejudicial manner because of some personal animosity toward him.[21] He commenced his submissions with a reference to 'tangible pre-judgment'.[22]

22 Kuksal, by his unambiguous and repeated opinions expressed as to the judge's personal qualities, subjectively had no confidence in the court's impartiality. The other three defendants joined in his applications. On the second day of hearing Maria Di Grigorio made a further recusal application. That application was based upon a statement of mine that she had been given an opportunity to object to the affidavits of the VLSB but on reviewing the transcript she was only asked by me about evidence she wished to rely on, not whether she objected to the applicant's evidence. Further she relied on the oral submission that 'antagonism between bench and Kuksal' prevents the other defendants being heard and that I appeared indifferent to the proceedings.[23]

23 There was no real effort to identify the relevant matters in the two-step process with which I am required to engage. Even if the expansive and scattergun approach to identifying conduct could be distilled to particular conduct, there was no attempt to articulate any logical connection between that conduct and the way in which I might approach a decision in the case. Rather, for the following reasons, the applications were impermissibly based upon a subjective concern that I would decide the case adversely, and therefore unfairly.

24 First, none of the recusal applications made orally, nor the casual observations of instances of pre-judgment, prejudice or unfair treatment of the defendants as unrepresented litigants, that are relied on to demonstrate an apprehension of or a tangible bias, are in any way connected to the merit of the question I have to decide. Instead they are substantially directed at two matters. The first matter is a pre-judgment arising from Kuksal's failure to obtain an injunction against parties other than those to this proceeding in different factual circumstances.

25 The second matter is the manner in which this hearing has been conducted generally over 20 and 21 October 2022. The exchanges largely between the bench and Kuksal were directed at the manner in which the hearing was to be conducted and the setting of boundaries and expectations for the orderly conduct of that hearing. That task was made difficult by the behaviour of Kuksal. I believe it is important to observe that although the other three defendants did join in applications made by Kuksal or made their own similar applications, they did not join in his behaviour.

26 I am cognisant that the behaviour of any litigant whether respectful or not is not reflection of the merit of the claims they seek to prosecute or defend. The task of determining the merit of claims before a judge is distinct from the judge's task of conducting the hearing in a fair and orderly fashion.

27 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.

28 The third defendant described the conduct of the hearing, as conducted between Kuksal and the bench, as one of 'antagonism'.[24] I do not accept this characterisation of judicial behaviour, which was necessarily sharp but remained restrained given the conduct of a litigant before the court.

29 In my view, the applications by the defendants rise no higher than a submission that their subjective belief or conviction, which I accept that some hold strongly, is that I will decide the case adversely to them. The authorities make clear that I should not disqualify myself except for proper reason. As was said in Hamond by Beazley JA (Giles and Whealy JJA agreeing):

In deciding the question of "reasonable apprehension" it is important that judicial officers discharge their duty to sit, and do not accede too readily to the suggestions of the appearance of bias. This issue in each case is whether the judge appointed to hear the matter might not bring an impartial and unprejudiced mind to its resolution: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215 at 230. A necessary corollary of this criterion is that a judge ought not to disqualify himself or herself except for proper reason: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272. The criterion of "reasonable apprehension" should not be subverted into a lesser enquiry as to whether it would be "better" for another judge to hear the case. Applying such an imprecise and impressionistic criterion could encourage a belief that a party can, by making disqualification applications, obtain a hearing before a judge thought to be more favourable: see Re JRL (supra) at 352.[25]

30 There has been no real attempt to address the correct legal test in the applications. As was said in Ebner:

Judges do not choose their cases; and litigants do not choose their judges. ...if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.[26]

31 I should say a little more about the substantive injunction application and the stage at which it is presently. The VLSB appointed an external manager of the law practice following the outcome of a compliance audit. An instrument of appointment was signed on 22 August 2022, appointing Howard Rapke as manager for a six month period, in accordance with a VLSB resolution on 20 August 2022. The defendants challenge the legality of the appointment.

32 The injunction application seeks particular relief pursuant to s 447 in schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) (the Uniform Law), restraining the four defendants from acting contrary to ss 455 or 364 of the Uniform Law. Specific relief is sought to restrain continuing use of the email domain of the Law Practice (@eruditelegal.com.au) and broader restraint.

a) Whether or not it appears to the Court that the person intends to contravene this Law or the Uniform Rules, contravene this Law or the Uniform Rules again or continue to contravene this Law or the Uniform Rules; and

b) Whether or not the person has previously contravened this Law or the Uniform Rules; and

c) Whether or not there is a likelihood of substantial damage to anyone else if the person contravenes this Law or the Uniform Rules; and

d) Whether or not proceedings for contravention of this Law or Uniform Rules have begun or are about to begin.

34 I have not accepted the submission that any interim injunction that might be ordered would have the effect of undermining the judicial review proceeding which seeks to challenge the validity of the appointment of the external manager. Nor do I accept that any interim injunction restraining the defendants would render that proceeding nugatory.[27] I accept that interim relief pursuant to s 447 may be ordered prior to findings about any obstruction or contravention of provision including civil penalty provisions in the Uniform Law.

35 I am satisfied that continuing use of the email addresses associated with Erudite Legal has occurred on the part of the first, third and fourth defendants. I take judicial notice of the fact that Kuksal has continued to use the email identifying himself as 'General Manager' of Erudite Legal in correspondence with the Court in this application. As such, I am prepared to restrain the first, third and fourth defendants on an interim basis in the terms sought. It is not necessary to make any finding as to whether the use of the emails contravenes the Uniform Law in order to grant relief under s 447(5).

36 As to the further conduct of the balance of the application, by 4:15pm on Friday, 21 October 2022, Kuksal had not completed his submissions. The other defendants had only made limited submissions on particular aspects. I had earlier in the hearing requested that the defendants give consideration as to how they intended to present their respective submissions without repetition.[28] Ansell informed the Court that some un-concluded discussion had occurred in the available time, and sought that I 'bear with them'. He then addressed some submissions relevant to his individual position.[29]

37 I have requested that all defendants provide my chambers with an alternate email contact. All four defendants have now done so.

38 The defendants were afforded liberty to make an application for any permitted use of the restrained emails necessary to conduct financial or other business not associated with the legal practice. No such application has been made.

39 Before relisting the part-heard application for the balance of the hearing, I direct the defendants to file, individually or jointly, a written outline of the remaining issues to be addressed by each of them limited to five pages, and to provide an estimate of the time needed to address those matters in oral submissions. I will pronounce formal orders requiring these documents to be filed. Once this direction has been complied with, the Court will contact the parties to confirm an appropriate listing time for the further hearing. As I anticipated at the hearing, I expect to list the balance of the application on an estimate of half a day to one day.[30]

[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.

[10] [2018] VSCA 216, [79] (citations omitted).

[11] [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').

[12] Ibid [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[13] AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; (2011) 34 VR 236; Bodycorp Repairers Pty Ltd v Maisano (Recusal Appln) (No 12) [2017] VSC 676.

[14] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; (2011) 34 VR 236, [21].

[15] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Kirby J).

[16] Hamond v New South Wales [2011] NSWCA 375.

[17] Aussie Airlines Pty Ltd v Australia Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.

[18] [2021] VSC 552.

[19] [2021] VSCA 248

[20] [2009] NSWCA 414.

[21] T 29.18; T 32.15-16; T 35.31; T 36.1; T 42.21; T 43.21.

[25] Hamond v New South Wales [2011] NSWCA 375 [258]-[259].