Plaintiff v Defendants

PRACTICE AND PROCEDURE - Where party alleges misconduct on the part of a judge - Whether the Court is required first to determine whether the allegations have been made in bad faith prior to hearing substance of matter - Where no such obligation.

1 The Victorian Legal Services Board, the plaintiff ('the Board') took action against People Shop Pty Ltd, which traded as Erudite Law under the Legal Profession Uniform Law ('Uniform Law')[1] including by appointing an auditor and then an external manager to the practice. Mr Shivesh Kuksal and Ms Lulu Xu, the first and fourth defendants, are persons associated with People Shop Pty Ltd. Mr Peter Ansell, the second defendant, is a lawyer associated with People Shop Pty Ltd. I hereafter refer to them collectively as 'the defendants'. On 21 October 2022, this Court made interlocutory orders that, in general terms, restrained Mr Shivesh Kuksal and Ms Lulu Xu from sending emails from the email domain 'eruditelegal.com.au' or using various accounts that were '@eruditelegal.com.au', sending or issuing correspondence purporting to be sent by or on behalf of Erudite Legal or representing that they are managing the affairs of Erudite Legal. The Board now seeks, again speaking generally, final relief of that type, as well as an injunction restraining Mr Peter Ansell from engaging in legal practice whilst he does not hold a practising certificate.[2] On 1 August 2024, following an application by the defendants for an adjournment, I ordered that the claim for an injunction restraining Mr Ansell from engaging in legal practice whilst he does not hold a practising certificate be heard on 5 August 2024 and the remaining claims be heard on 20 August 2024.[3]

2 On 5 August 2024, the defendants applied again for an adjournment in circumstances described below. After lunch, I dismissed that application and said that I would give reasons later. These are those reasons.

B. The 5 August 2024 adjournment application - Constitutional and Human Rights concerns

3 Mr Ansell, Ms Xu and Mr Kuksal arrived in Court approximately 20 minutes late on the morning of 5 August 2024. Mr Ansell asked to have the matter stood down so that they could provide the Court with two documents that had been prepared and filed with the Court that morning: a notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter'), and a notice under s 78B of the Judiciary Act 1903 (Cth) with a view then to applying for an adjournment of sufficient time to allow Attorneys-General or some of them and the Equal Opportunity and Human Rights Commission to be added as parties or, possibly, at least time to consider intervening in the proceeding (although it was apparent that the defendants would apply at least for an order that would require at least the Victorian Attorney-General to be added if she did herself wish to be added).

4 I stood the matter down and obtained the two documents. The former asserted that questions of law had arisen that related to the application of the Charter, and the latter asserted that this proceeding involved matters under the Constitution or involving its interpretation. Both documents identified the matters as being whether:

(a) A justice of this Court (that is, me) may preside over this proceeding, when the justice has been the subject of multiple complaints by a party to the Independent Broad-based Anti-Corruption Commission ('the IBAC') alleging they have engaged in criminal or corrupt conduct and detrimental action against the parties; and whether they should not preside unless and until the IBAC has determined those claims or the justice has determined that the complaints were made with the sole purpose of frustrating the administration of justice;

(b) A justice who has 'relied on evidence solely received from ex parte communications' to make decisions against parties in a proceeding is conflicted from presiding over related proceedings;

(c) A justice who has been 'a witness in a criminal matter involving a party' is conflicted from presiding over related proceedings; and

(d) A justice has the power to conduct a proceeding in a manner that contravenes ss 64 or 78B of the Judiciary Act 1903 (Cth) (in the case of the notice under the Judiciary Act 1903 (Cth)) or various sections of the Charter and/or s 25 of the Crown Proceedings Act 1958.

5 No notice of the application for an adjournment was given until the morning, and no written submissions were filed. Mr Kuksal made oral submissions on behalf of all defendants. He was given the morning to do so. Ms Xu then added some further submissions into the lunch break. After the lunch break, I dismissed the application and said I would give reasons later. These are those reasons.

6 There is nothing in the Charter that expressly requires a Court not to proceed to hear a matter after a notice under s 35 of the Charter has been given. I do not accept that such an obligation is implied even having regard to, as I was invited, s 32 of the Charter. That section merely states that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. If the legislature had intended that the provision of a notice under s 35 of the Charter would compel a Court not to hear a matter until the Attorney-General had reviewed the notice, then the Charter would have said so - perhaps in terms similar to those contained in s 78B of the Judiciary Act 1903 (Cth). That provision provides that:

(1) Where a cause pending in a ... court of a State ... involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the State, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention of the proceedings or removal of the cause to the High Court.

7 That provision does not, however, create a situation where the mere creation and filing of documents of the type described precludes a Court from proceeding with a matter regardless of whether the Court considers that issues of constitutional interpretation really arise.[4] If so, the scope for misuse of the process would be apparent.

8 I am not satisfied that the matters set out in the notices involve a matter arising under the Constitution or involving its interpretation, or that they involve a question of law that relates to the application of the Charter or with respect to the interpretation of a statutory provision (such as the Uniform Law) in accordance with the Charter. The matters raised go to the question as to whether a judge ought to recuse themself for apprehended bias. The legal principles that relate to the determination of such an application are clear and do not involve the interpretation of the Constitution or the Charter.[5]

9 I accept Mr Kuksal's submission that the Victorian Parliament is not able to empower a state court to behave in a way that is contrary to the Commonwealth Constitution. I do not accept his submission that all judicial power, that is, including State judicial power, comes from the Commonwealth Constitution. These, however, are beside the point in the absence of some relevant federal constitutional obligation on me not to proceed with the matter.

10 Mr Kuksal's oral submissions otherwise seemed to go to different areas.

11 He argued that there is a right to legal representation, and so if a lawyer is being improperly prevented from appearing for a party, then the Constitution is infringed. The right to legal representation was said to arise because of ss 78, 55A and 55B of the Judiciary Act 1903 (Cth). These sections all deal with federal courts. This is not a federal court. Nor is it exercising federal jurisdiction, notwithstanding the defendants' contention that federal jurisdiction is being exercised as a result of their filing of the notices. This proceeding involves an application by a state body under a state act for relief against residents of Victoria. In any event, s 78 of the Judiciary Act 1903 allows a party to be represented by a lawyer but, as well as being limited to federal courts, qualifies that entitlement with the phrase: 'as by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein.' The defendants appear to have overlooked those words in their submission. Both ss 55A and 55B of the Judiciary Act 1903 are also expressed to be subject to the rules under which a person is admitted to practice. The sections relied on thereby anticipate the existence of rules that would delimit the people who can appear in court as lawyers for others. There is no unqualified right to legal representation resulting from Chapter III of the Constitution. Put simply, there is no constitutional right, or human right, to be represented by a lawyer who does not have a practising certificate.

12 Mr Kuksal submitted on behalf of the defendants that the allegations against Mr Ansell included that he had breached s 10 of the Uniform Law, that a breach of that resulted in penalties and was therefore 'criminal', and that this meant that he, Mr Kuksal, had the right to be heard on the claims against Mr Ansell. He also submitted that the 'substance' of the claim against Mr Ansell was criminal, the matter seriously involved Mr Ansell's rights and his rights, the Court was failing him, and so all Attorneys-General should be given an opportunity to become involved in the proceeding.

13 I do not accept those submissions. It is true that the Board is seeking to establish that Mr Ansell contravened a provision of the Uniform Law, but it is not seeking penalties against him in at least in this proceeding. But in any event, even if this proceeding were characterised as criminal or 'quasi-criminal', I do not consider that it would have to be adjourned for any of the reasons Mr Kuksal gave.

14 Mr Kuksal then submitted on behalf of the defendants that because he had raised a question as to whether the Board was or had acted lawfully, this Court was required to determine those issues first in order to comply with its obligations to accord the parties human rights and to act in accordance with the principle of legality and proportionality. Similarly, he submitted that because he had made serious allegations against me, I had no power to proceed to hear the matter unless I first determined whether he had made those allegations for the improper purpose of perverting the course of justice.

15 I disagree with both those submissions. None of the cases referred to establish that the Court would be acting in breach of any the defendants' rights if it were to determine the issue of whether Mr Ansell is permitted to engage in legal practice whilst he does not have a practising certificate, without first determining whether the Board had acted unlawfully or whether Mr Kuksal's allegations were made in bad faith. Parties are not able to dictate the order in which a Court decides to deal with issues that arise by the process of making allegations of misconduct and requiring that those allegations be the first thing determined.[6] Accepting Mr Kuksal's position would mean defendants could intolerably delay proceedings by putting forth such allegations, and, despite Mr Kuksal's oral submissions to the contrary, I do not accept that Parliament somehow intended that proceedings must be stayed until those allegations are resolved because there is a potential penalty attached to making such allegations if they are made in bad faith.

16 Finally, Mr Kuksal raised a concern that public confidence in the judiciary is at present low, and so it is important that the matter not proceed in the present circumstances.[7] It must also be borne in mind, however, that public confidence in the judiciary is not enhanced if proceedings are delayed other than for good reason. Similarly, public confidence would not be enhanced if a party were able to ensure that a particular judge does not hear matters involving that party by that party making serious allegations against that judge, or were able to require that that judge not hear the matter until there has first been a finding that the complaints made were themselves made for the improper purpose of perverting the cause of justice.

C. Mr Ansell's next application for adjournment

17 After I had dismissed that application for an adjournment, Mr Ansell then submitted that he needed an adjournment also because he had not had enough time to prepare, wanted to obtain legal advice, had difficulty hearing, wanted some form of discovery, and wanted time to consider a written set out of reasons for which the application for an adjournment was dismissed. That application, too, was made without notice and without any material in support. Mr Ansell has demonstrated an ability to adequately hear court proceedings. The case against him is based on documents apparently created or sent by him that have been exhibited to an affidavit and the subject of a notice to admit. He has had time to prepare or to obtain legal advice if he wished to do so. I dismissed his separate application for an adjournment.

18 Mr Ansell, and the other defendants, then (or at the same time) applied for an order that I recuse myself. I ordered that any submission to this effect be made in writing and that I would consider any submission received by the due date in chambers.

19 After I had dismissed the applications for adjournment, the proceeding for relief commenced against Mr Ansell based on the allegation that he had contravened s 10 of the Uniform Law. Mr Kuksal sought to raise objections, seemingly on his own behalf, to affidavit material that produced correspondence and other documents from being admitted into evidence. Those documents had also been the subject of a notice to admit that Mr Ansell accepts he received and to which he did not file a notice of dispute. Mr Kuksal persisted in these submissions notwithstanding that I expressly reserved his right to argue against the admissibility of the material in so far as it concerned him. He also indicated that he wished to contend that the notices to admit were not effective in the proceeding. He insisted that that issue be determined, and a ruling made, before the proceeding continued. He indicated, as I understood it, that if I ruled that the notices to admit were effective, he would then apply for some other form of order, or seek to be given leave to respond to them out of time. The proceeding was unable to be completed within the day. It then emerged that the Board was unable to appear the next day,[8] and the matter was, ultimately, adjourned to 20 August 2024 to be heard with the applications against Mr Kuksal and Ms Xu.

(a) Any application for recusal be made by written submissions filed and served on or before 4.30pm on 7 August 2024; and

(b) Submissions in support of any argument that the notices to admit served by the plaintiff do or should not take effect as admissions in accordance with the Supreme Court (General Civil Procedure) Rules 2015 be filed and served on or before 12 August 2024.

21 The Board indicated that it might wish to file and serve an affidavit of service that related to the notices to admit and the material provided with them. Mr Kuksal objected to its being given leave to do so. I indicated that any such affidavit should be prepared and circulated, and that I would determine whether to admit it into evidence in due course. I indicated that Mr Ansell, Mr Kuksal and Ms Xu should be prepared to argue their cases on 20 August 2024 regardless of what I might order in relation to the notices to admit.

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

[2] That is, a certificate granted under the Uniform Law to an Australian lawyer without which they are not entitled to engage in legal practice.

[3] Victorian Legal Services Board v Kuksal (Adjournment) [2024] VSC 459.

[4] See also Anderson v Sharpe [2024] VSCA 166, [165]-[166] (Emerton P and Kaye JA).

[5] See, eg, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

[6] See Civil Procedure Act 2010 (Vic) s 47(3) and Part 4.2 generally.

[7] Mr Kuksal asked me to take judicial notice of a report referred to on 3AB radio 'earlier this week' that 'there is a 30 per cent public confidence in the judiciary in Victoria'.

[8] Ordinarily, this would not be acceptable because a case set down for hearing will continue to be heard until it is completed even if it goes beyond the 'estimate' and the parties ought to be aware of that fact. (See generally HM&O Investments Pty Ltd v Ingram [2012] NSWSC 11). However, this case was unusual because it was initially listed for Thursday 1 August 2024 with a three-day estimate, but on Thursday 1 August 2024 part of it was adjourned to 20 August 2024 and part of it was adjourned to Monday 5 August 2024. The part adjourned to 5 August 2024 should have been able to be completed, it could reasonably be estimated, in one day. However, most of 5 August 2024 was taken up with applications by the defendants of which notice had not been given and that, I accept, were not able reasonably to be anticipated.