Plaintiff v Defendants

B. The procedural steps associated with the recusal application

2 On 21 October 2022, Forbes J made an interim injunction in this proceeding against Mr Kuksal, Ms Di Gregorio and Ms Xu. At a directions hearing on 17 August 2023, the defendants advised me, orally, that they (or at least some of them) wished to apply to vary the interim injunction. On that day, I made directions for the filing and service of affidavits and submissions by the defendants in support of that application, and by the Board in response, and listed the matter for mention on a date not before 12 October 2023. I did not require the defendants to file a summons.

3 The defendants did not file and serve any material in support of the application to vary the injunction.

4 On 16 October 2023, the Supreme Court of Victoria Registry advised the parties that the mention would proceed on 20 October 2023. Also on 16 October 2023, Mr Kuksal enquired whether the mention would be before me and indicated that a recusal application would be brought if it were. On 17 October 2023, the Registry advised that that the mention would likely be listed before me, and enquired whether the application would be that I recuse myself from hearing the mention or that I recuse myself only from hearing the substantive application. Mr Kuksal, writing on behalf of himself, Mr Ansell and Ms Xu, indicated both. On 17 October 2023, the mention was refixed for 26 October 2023, and the defendants were required to file and serve a summons returnable on 26 October 2023 and to file and serve any affidavit material in support of the recusal application by 24 October 2023. On 23 October 2023, the defendants sought a week's adjournment. Later that day, the Registry advised that the application for recusal, and the mention if the application were refused, would be fixed instead on 3 November 2023, and the time by which the defendants were to file and serve their material was extended to 31 October 2023. The defendants sought further extensions of time to file material, but none were granted.

5 On 31 October 2023, a 'general application' document was filed that set out the grounds on which my recusal was sought. Also on 31 October 2023, an affidavit sworn by Ms Xu was filed. The affidavit indicated that it was prepared by 'Erudite Legal' and was filed on behalf of 'the plaintiffs'. It was clarified in the body of the affidavit that it was filed in support of the recusal application by Mr Kuksal, Mr Ansell and Ms Xu. The affidavit did no more than purport to exhibit 'the documentary evidence on which [Ms Xu] and [her] colleagues will rely at the hearing on 3 November 2023', said to be a bundle of documents and an index of certain multimedia files. The exhibit was not filed.

6 The defendants all appeared before me in person on 3 November 2023. The Board was represented. I raised with Mr Kuksal that he had not filed material in support of the recusal application. He chose to proceed with his application relying on the previous hearings he had had before me and the decisions that I made that are referred to below. He indicated that his submissions would take three hours. He was given the full day. At the end of the day, Mr Ansell and Ms Xu adopted Mr Kuksal's submissions, and Ms Xu made some additional submissions of her own. The third defendant Ms Di Gregorio, as noted above, did not participate. The Board, other than confirming that its silence was not to be taken as an acceptance of the various allegations made by Mr Kuksal, did not actively participate in the application. I reserved my decision.

7 Mr Kuksal asked for, and was given, leave to file a short list of authorities with paragraph references, of no more than 10 pages, to supplement his oral submissions. I directed that this be done by 6 November 2023. Leave was granted extending this date to 16 November 2023, then to 20 November 2023 and then to 22 November 2023. On 22 November 2023, Mr Kuksal sent to my chambers a 134 page submission. That document set out submissions, extracts from the transcript and references to cases. It was not a document in respect to which leave had been given. On 24 November 2023:

(a) Mr Ansell emailed my chambers seeking leave to file 'affidavits and submissions' and seeking the Court urgently to list a directions hearing to permit them to 'issue subpoenas' and make various other applications;

(b) Ms Xu emailed to my chambers an 8 page list of 200 cases 'relied upon in Mr Kuksal's submissions'. The email repeated the request for leave to 'file additional evidence and submissions'.

8 The application that I recuse myself was based on conduct engaged in by me prior to and reflected in reasons published by me on 23 August 2023. The applicants have had sufficient time in which to prepare and file material. A full day was spent hearing oral argument on 3 November 2023. There is a public interest in having applications determined expeditiously. The proceedings involving Mr Kuksal cannot substantively proceed until this application has been determined. In the circumstances, I have decided not to permit the applicants to file more material.

9 As noted above, on 31 October 2023 a 'general application' document was filed. This document was, it seems, in lieu of a summons. It was said to have been 'prepared by Erudite Legal' and, wrongly, filed on behalf of 'the Plaintiffs'. It said that the application was made on the grounds that:

1. Gorton J's adjudication of the hearings in three related proceedings on 17, 18 and 23 August 2023 and associated conduct was unreasonable and capable of:

1.1 Raising a reasonable apprehension of prejudice against the First, Third and Fourth Defendants; and

1.2 Bringing the administration of justice into disrepute.

1. The First Defendant is currently initiating a complaint with the Judicial Commission of Victoria against Gorton J in relation to which the Third and Fourth Defendants are going to be witnesses.
2. The First, Second and Third Defendants plan to imminently make applications in the proceedings [number withheld] and S ECI 2022 04028 seeking declarations that Gorton J's orders of 23 August 2023 and 7 September 2023 are unjust and unreasonable and should be set aside to mitigate ongoing prejudice against them.
3. Gorton J is a witness in Victoria Police's investigation against the First Defendant in relation to impending criminal proceedings against him arising out of the First Defendant's compliance with His Honour's directions.

10 It was apparent that this application, although brought in this proceeding in which I have not yet decided any substantive disputes, was an application by Mr Kuksal, Mr Ansell and Ms Xu (notwithstanding the above references to the third defendant Ms Di Gregorio) that I recuse myself from hearing any matter that involved them.

11 It is necessary to say something about the two proceedings referred to in para 3 of the application set out above:

(a) In proceeding number S ECI 2022 04028, Mr Kuksal, Ms Di Gregorio, Ms Xu and Mr Ansell, and possibly People Shop Pty Ltd, are seeking relief against the Board, Mr Neylon, Mr Cooper and Mr Rapke. Mr Neylon conducted a compliance audit of People Shop Pty Ltd, Mr Cooper investigated suspected offences, and Mr Rapke was appointed as an external manager to People Shop Pty Ltd. The relief sought includes declarations that the Board engaged in malicious, misleading, and otherwise improper conduct in the steps it took.

(b) In the other proceeding, Mr Kuksal is seeking relief against a person who used to work with him, their parents, the State of Victoria, the Magistrates' Court of Victoria and the Board. The person who used to work with Mr Kuksal obtained an interim family violence intervention order against him in the Magistrates' Court of Victoria under the Family Violence Protection Act 2008. Because s 166 of the Family Violence Protection Act 2008 provides that a person must not publish a report of a proceeding that may lead to the identification of any person involved in the proceeding under that Act, I gave the parties pseudonyms in the reasons I published. For the same reason, I am not including the proceeding number in these reasons. Mr Kuksal seeks not just that the interim intervention order be quashed, but also declarations of extensive wrongdoing, including collusion or conspiracies, by the police, the State of Victoria, the other person involved and her parents. The other person and their parents brought an application for summary dismissal.

12 On 17 August 2023, I heard an appeal brought by Mr Kuksal, Mr Ansell and Ms Xu in proceeding S ECI 2022 04028 against some directions made by a judicial registrar on 9 November 2022. On 18 August 2023, I heard an appeal brought by Mr Kuksal against some directions made by another judicial registrar in the other proceeding. Both appeals were hearings de novo. By the time I heard the appeal in the other proceeding, the person and their parents had informed the Court that the State was 'the proper contradictor' and thus that they did not intend further to participate, and the State had brought an application for summary dismissal and that some of the affidavit material be removed from the Court file.

13 The main complaint Mr Kuksal and the others had against the orders made by the judicial registrar in proceeding S ECI 2022 04028 concerned a strike-out summons that had been filed by the defendants shortly before the directions hearing but had not been served by the time of the directions hearing. The judicial registrar made orders that listed the defendant's summons, and certain paragraphs of a separate summons filed by Mr Kuksal and the other plaintiffs, for hearing on a date to be fixed, made orders for the exchange of material in support of and in opposition to those applications, and otherwise adjourned the proceeding. I did not consider that the judicial registrar erred in his approach. After publishing my reasons,[1] on 23 August 2023 I made orders that were substantively in the same form as the orders made by the judicial registrar, save that, of course, the dates by which matters to be done were different. I later ordered costs against the plaintiffs.[2]

14 In the other proceeding, the judicial registrar ordered that some of Mr Kuksal's affidavit material, which contained deeply personal matters relating to the person who used to work with him obtained by Mr Kuksal from their mobile phone, not be inspected by non-parties, listed an application by Mr Kuksal for a stay of the interim intervention order for 1 February 2023, listed part of Mr Kuksal's application for hearing on 27 February 2023, and ordered that the balance of Mr Kuksal's applications be heard on a date to be fixed following the determination of the other applications. In the appeal before me, Mr Kuksal sought that I determine, then, his application for a stay of the interim intervention order (which application he had specifically asked the judicial registrar not to decide at the earlier hearing as he had applied for the judicial registrar to recuse himself.) The application was, in substance, an application for an injunction preventing persons from taking any steps to enforce the interim intervention order. I agreed to hear his application, and, after hearing argument, dismissed it. Mr Kuksal sought that a summary dismissal application by the State of Victoria not be listed for determination. I disagreed, and made directions for its determination at the same time as the determination of some of Mr Kuksal's applications, and made orders for the exchange of material. I later ordered costs against Mr Kuksal.

15 Mr Kuksal has not appealed the orders I made. He points out, correctly, that they were interlocutory orders. His expressed intention is to have me recuse myself then to apply to another judge in the trial division to have the orders in the other proceedings set aside and different orders made.

16 I am obliged to recuse myself if a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues to be decided.[3] That conclusion might be drawn for any number of reasons. It might be drawn if a judge acts in an unjudicial manner, fails to accord procedural fairness to a party, or otherwise reveals a lack of impartiality.

17 Mr Kuksal did not establish that this test was satisfied.

18 Mr Kuksal focused on what he said were numerous errors on my part that were revealed by my reasons and orders. Mr Kuksal did not satisfy me that I had erred in the manner or to the extent that he contended. More significantly, however, he failed adequately to appreciate the difference between a judge making an error and a judge lacking impartiality. I accept that a particularly egregious or certain type of error might give rise to an apprehension of bias, but that would not be every case and the fair-minded lay observer will know that issues can be difficult and errors can be made without there being bias. Even if I had erred in some way in my determination of the issues that arose in the appeals in the proceedings to which Mr Kuksal referred, in my assessment that would not cause the fair-minded lay observed to think that I might not, in hearing matters involving Mr Kuksal, Mr Ansell or Ms Xu, bring an impartial mind to the resolution of the issues to be decided.

19 I will turn to some of the more significant matters that Mr Kuksal raised.

E.1 My role as a potential witness or as someone who may have caused Mr Kuksal to face charges

20 This was the submission that, in my view, had the greatest weight. In the proceeding that concerned the interim family violence intervention order, a problem arose because the interim family violence intervention order prevented Mr Kuksal from communicating with the person who used to work with him and that person was unrepresented by the time the matter came before me. This created a difficulty because of the need to ensure that any communications from the Court to the parties or from a party to the Court were copied to all other parties at their address for service. I and my chambers informed the parties, in accordance with the usual practice, that I expected any communications to the Court to be copied to all other parties. Mr Kuksal says, and I accept, that this created a difficulty for him and that Victoria Police have indicated that they are considering whether to lay charges against him for breach of the intervention order. He points out that if he were breaching the order then he was doing so because he was obliged to comply with my direction, and accordingly contends I am responsible for creating a situation where he might face criminal charges and where I might be a witness. He submitted that this revealed a 'fundamental temperamental incapacity' on my part.

21 Ms Xu emphasised the concern that my chambers had, at my direction, become involved in the question of possible legal proceedings against Mr Kuksal, and pointed out that the risk of legal proceedings continued because there was 'no statute of limitations'.

22 It seems to me unlikely that Mr Kuksal will face charges for copying in a party to correspondence with the Court when that party has their own contact details as the address for service so long as the correspondence is of the type required properly to conduct a Court hearing. Even if he does, I do not consider that I am likely to be a witness in any proceedings. The communications I had with Mr Kuksal on this issue were either in writing, copied to all parties, or made in open court and recorded on transcript and so I cannot see that their content could be the subject of dispute. More fundamentally, I do not consider that my imposing of the requirement that the parties copy each other into communications with the Court, which is an entirely standard requirement necessary to ensure that proceedings are fair and conducted openly, reveals a 'fundamental temperamental incapacity' or otherwise might cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the issues to be decided in this case. My conduct involved treating Mr Kuksal exactly the same way that I would treat any other litigant.

23 In the directions I made, I limited the length of the affidavits that Mr Kuksal was permitted to file and serve to 20 pages for the body of the affidavit and 80 pages for the exhibits. Mr Kuksal submits that it was unlawful of me to limit the length of the affidavit material that he was permitted to file. His contention was, as I understood it, that the Evidence Act 2008 makes relevant evidence admissible so no limits may be imposed on the length of his affidavits. It is, he says, a necessary part of a Court operating under Chapter III of the Constitution that it not impose such limits or impose limits that involve the exercise of judicial discretion and (as I understand it) the fact that I placed limits on the length of his affidavits revealed my 'temperamental' unsuitability to perform the role of a judge. Mr Kuksal submitted that the Civil Procedure Act 2010 did not apply to his proceedings because the Court was exercising federal jurisdiction or because the proceedings were 'not civil'. The Court was exercising federal jurisdiction because, he said, part of the relief he sought were declarations that the person with whom he used to work had breached provisions of the Corporations Act 2001 (Cth).

24 I disagree with these submissions. I consider that the Civil Procedure Act 2010 does apply. Mr Kuksal's proceedings are issued pursuant to the Supreme Court (General Civil Procedure) Rules 2015 and are not criminal or quasi-criminal proceedings merely because they seek judicial review of an order made under the Family Violence Protection Act 2008 and because he alleges wrongdoing by other persons. I do not accept that this Court is exercising federal jurisdiction, but even if it were, the Civil Procedure Act 2010 would still apply to the procedure that was to be followed. The Civil Procedure Act 2010 empowers the Court to 'give any direction or make any order it considers appropriate' in order to achieve the 'overarching purpose' of facilitating the 'just, efficient, timely and cost-effective resolution of the real issues in dispute'. I considered the imposed limits to have been reasonable. Mr Kuksal has filed long affidavits that impose significant burdens on the Court and the other litigants. In proceeding number S ECI 2022 04028, for example, Mr Kuksal had filed affidavits totalling, including exhibits, more than 14,600 pages. Further, material in an affidavit is not admissible just because it is in an affidavit and it cannot be assumed that every page he wishes to include in an affidavit contains relevant and admissible material. Finally, the orders made did not preclude Mr Kuksal from seeking leave to file additional material if he could persuade the trial judge that it was relevant and otherwise admissible.

25 However, even if Mr Kuksal were right and I did not have the power to impose limits on the length of his affidavits, that would not be reason to recuse myself. In the circumstances of this case, the imposition of limits would not cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the issues to be decided.

E.3 The failure to grant the application for an injunction or to recognise the errors made by the Magistrate

26 Mr Kuksal submitted that the interim intervention order was an administrative order and that it unlawfully infringed on his rights including under the Charter of Human Rights and Responsibilities Act 2006 because it did more than was necessary or justified in the public interest. He also submitted, as I understood it, that the making of the interim intervention order against him involved the Magistrates' Court of Victoria in exercising power that was incompatible with the constitutional limit that Courts perform only judicial and not administrative functions.[4]

27 If Mr Kuksal is right in these arguments, then, presumably, his application to have the interim intervention order quashed will in due course succeed or, possibly, the other persons will fail to obtain their final relief when the matter is next before the Magistrates' Court of Victoria. That, though, is no reason for me to recuse myself. I do not accept his argument that the interim intervention order should be quashed is so strong that my failure to grant his injunction (or immediately to set aside the interim intervention order) reveals that I have not or may not bring an impartial mind to the resolution of these issues.

28 Mr Kuksal contended that the making of orders by the judicial registrar in proceeding number S ECI 2022 04028 that provided for the hearing of the Board's summons in circumstances where that summons had not been served was in breach of a principle that the Court must not overlook mischief by the executive and was otherwise entirely inappropriate. The criticism directed at me was that I failed to recognise this - that I 'lacked the ability' to 'grasp his suffering' and that my failure to do so revealed a lack of a 'judicial temperament' on my part.

29 There are a number of answers to this submissions. First, I do not accept, for the reasons I gave,[5] that it was wrong for the judicial registrar to make the orders he did. Second, I do not accept that the failure to serve the summons was deliberate or that there is an inflexible requirement that Courts must not overlook errors by the executive regardless of whether there is injustice. Third, the matter came to me as a hearing de novo, and Mr Kuksal had been aware of the existence of the summons for many months by the time I made my orders. Fourth, and finally, even if I am wrong in all of this, my errors would not lead a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the issues to be decided in this case.

30 In the proceeding that concerned the interim intervention order, as noted above, the person who used to work with Mr Kuksal and their parents then indicated that they wished no longer substantively to participate in the proceeding because the State was 'the natural contradictor'. Mr Kuksal seems to consider that in those circumstances the Court was obliged to make the orders he sought and to disregard the affidavits that the others had already filed. I do not agree. Other parties were not consenting to the orders that Mr Kuksal sought. The State of Victoria had been made a party by Mr Kuksal and had appeared in the proceeding and indeed had filed a summons seeking summary dismissal of Mr Kuksal's proceeding and orders in relation to the affidavits containing the personal material. More fundamentally, the Court should not make orders setting aside or staying the effect of determinations by the Magistrates' Court, or make declarations of misconduct, even if an application for it to do so is unopposed, unless it is persuaded that it is appropriate to do so.[6]

31 The dismissal of Mr Kuksal's application for an interlocutory injunction that would have had the effect of staying the interim intervention order and the making of orders providing for the confidentiality, for the time being, of the affidavit material would not cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the issues to be decided in this case.

E.6 Not being informed of the name of the judicial officer soon enough

32 Mr Kuksal's proceedings are in the Common Law division of the Supreme Court. The Common Law division does not operate 'docket lists'. Mr Kuksal does not have a 'right' to be told in advance of a hearing which judicial officer will be hearing a particular matter in which he is involved. The fact that he was not given advance notice, or more than a day or so, of the fact that I would be hearing his matters is no reason for which I should recuse myself. Mr Kuksal's real complaint in this regard, as I understood it, was that I had decided a case involving him some years earlier,[7] that I had made various errors in the course of so doing, and that he might have made a recusal application had he been given more notice of the fact that I might hear these cases. I do not accept this submission, as he did not indicate at the hearings any dissatisfaction that the appeals in the two proceedings had been allocated to me. But in any event, this is, again, no reason for which I should recuse myself.

33 In the proceeding concerning the interim intervention order, I used pseudonyms in the reasons I made publicly available because to do otherwise would have revealed the identity of persons who had brought proceedings under the Family Violence Protection Act 2008. I did this because, as noted in para 11 above, s 166 of the Family Violence Protection Act 2008 (Vic) provides that a person must not publish a report of a proceeding that may lead to the identification of any person involved in the proceeding. The use of pseudonym orders in published reasons relating to proceedings under the Family Violence Protection Act 2008 is commonplace. The use of pseudonyms also had the benefit of not identifying Mr Kuksal as the person against whom the orders were made. Mr Kuksal submitted that the use of pseudonyms was unlawful. I do not accept that this is so but, even if it were, I do not accept that the fair-minded lay observer could consider that using pseudonyms raised the possibility of impartiality.

E.8 Using the word 'declaratory relief' rather than 'injunction'

34 Ms Xu raised an additional concern. At the directions hearing in this matter on 17 August 2023, when speaking to counsel for the Board, I said that the Board had already obtained 'interim declaratory relief' and that it was seeking 'final declaratory relief' in its originating motion. Ms Xu pointed out, correctly, the Board instead had already obtained an interim injunction and was seeking final injunctive relief, and I had used the wrong words. She submitted that this revealed that I had wrongly presumed that there had been some wrongdoing established. There is no such thing as an interim declaration and I accept that I used the wrong word. I do not accept that this indicates that I had wrongly presumed a finding of wrongdoing. In context, the fair-minded lay observer would see my use of words as a simple, and inconsequential, mistake.

E.9 The prospect of a complaint to the Judicial Commission

35 Mr Kuksal did not develop orally the implications from the fact identified in his application document that he was 'initiating a complaint' against me with the Judicial Commission of Victoria. The fact that he might do this is no reason for which I ought to recuse myself. Judges have a duty to sit and it would be 'intolerable' if individual parties could influence the composition of the bench.[8] It cannot be the case that a litigant can obtain the disqualification of a particular judicial officer by the process of making complaints against that officer. The question must remain whether the judicial officer has conducted him or herself in a way that might lead the fair-minded lay observer to consider that the judicial officer might not bring an impartial mind to the resolution of the issues to be decided. That conclusion cannot be drawn merely from the fact that a litigant has made a series of complaints about the judicial officer; it is the attitude of the judicial officer to the litigant, and not the attitude of the litigant to the judicial officer, that matters.

36 I am not satisfied that I should recuse myself from matters involving Mr Kuksal, Mr Ansell or Ms Xu, even when all of the complaints are considered together, and I will make an order dismissing the application that I recuse myself. As is apparent from the above, this applies in relation to all of the proceedings that involve them, not just this proceeding.

37 The mention in this matter was listed for 3 November 2023. I had intended, and had communicated to the parties, that if the recusal application were to fail I would hear the mention the same day. Because the recusal application took a full day to present, and I reserved, the mention has not yet taken place. It will be necessary to reconvene that mention.

38 As noted above, the parties also appeared on 17 August 2023 for directions on which date Mr Kuksal, Ms Xu and Mr Ansell advised me that they wished to apply for a variation of the interim injunction. I did not require the filing of a summons and made directions for the exchange of material on that application and reserved the costs of that day. Neither Mr Kuksal, Ms Xu nor Mr Ansell filed any material.

39 I will hear the parties on the question of the costs of the appearances on 17 August 2023 and 3 November 2023 and on what further orders should now be made to progress the resolution of this proceeding.

[1] Kuksal v Victorian Legal Services Board [2023] VSC 495.

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

[3] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[4] See, eg, Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

[5] Kuksal v Victorian Legal Services Board [2023] VSC 495, [35].

[6] See, eg, Telstra Corp Ltd v Minister for Broadband, Communications & the Digital Economy (2008) 166 FCR 64, [51] (French, Weinberg and Greenwood JJ).

[7] Avant-Garde Logistics Solutions Pty Ltd v Five Fish Super Pty Ltd [2021] VSC 669.

[8] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 348 [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ).