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[2023] VSC 438
General information, not legal advice.
Supreme Court of Victoria
2023-07-28
Ginnane J
Original judgment source is linked above.
JUDICIAL REVIEW - Practice and procedure - Judicial review challenge to Magistrate's order striking out summonses seeking production of documents - Party who obtained strike out order seeking to be removed as a party in judicial review proceeding - Whether party a proper or necessary party - Supreme Court (General Civil Procedure) Rules r 9.06 - Application dismissed.
JUDICIAL REVIEW - Application that Court's directions as to length of affidavits and submissions and as to the manner in which issues should be addressed created a reasonable apprehension of prejudgment - Application dismissed.
1 This judgment concerns two applications that I heard on 23 June 2023. The first by the Victorian Legal Services Board ('Board') the third defendant, and the second by Mr Shivesh Kuksal, the first plaintiff.
2 In the first application, the Board seeks to be removed as a defendant from the proceeding pursuant to r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015.
3 The background to the application is that Mr Kuksal and Ms Xu, the plaintiffs, seek judicial review of decisions made by Magistrates dealing with charges against them. Mr Kuksal been charged with obtaining property by deception and the theft of goods from customers who engaged their removalist company to transport their goods interstate. Ms Xu is described in the summary forming part of the preliminary brief concerning Mr Kuksal as a co-accused. They seek dismissal on the ground that the charges are an abuse of process. They challenge a search warrant issued by the Melbourne Magistrates' Court on 6 January 2022 in respect of a premises at Point Cook, they allege that they were subjected to unlawful arrest, false imprisonment, assault and other torts; and they challenge the actions of Victoria Police on that day. They challenge orders made by the Magistrates' Court. They also challenge the validity of actions taken by the Independent Broad-based Anti-corruption Commission in refusing to investigate Mr Kuksal's complaint about Victoria Police Officers' actions on 6 January 2022.
The orders of Magistrate Robertson, made on 7 November 2022, denying the First Plaintiff's applications to subpoena relevant information and documents [Subpoena Orders] from Ms Anna Alevizopoulos of the Victorian Legal Services Board [LSB] and Mr Howard Rapke [LSB Parties], and refusing to release the First Plaintiff from non-disclosure obligations [Warrant Affidavit Restriction] in relation to the affidavit of Senior Sergeant Leemara Fairgreave that had been used to secure the Search Warrant [Search Warrant Affidavit] were:
8.1. Pronounced in breach of the First Plaintiff's right to a fair hearing;
8.2. In denial of the First Plaintiff's right to procedural fairness and natural justice
8.3. A manifestation of Wednesbury Unreasonableness; and
8.4. A nullity or otherwise unlawful.
5 The relief that the plaintiffs seek include that:
Pursuant to Order 56 of the Court Rules, and under the law of equity, the Plaintiffs seek that the Court order that:
...
2. The LSB Parties comply with the subpoenas issued by the First Plaintiff.
6 The LSB Parties were Ms A Alevizopoulos and Mr H Rapke.
7 On 29 August 2022, Mr Kuksal issued summonses to produce documents and give evidence to:
(a) Ms A Alevizopoulos, an employee of the Legal Services Commissioner ('the Commissioner'); and
(b) Mr H Rapke, managing partner, Holding Redlich, who was appointed by the Board as Manager of People Shop Pty Ltd, a law firm associated with Mr Kuksal.
8 The summonses were issued in proceeding number N10047659 in which the informant, was Police Officer Olney. The summonses required Ms Alevizopoulos to produce:
10 In accordance with usual procedure, in response to the summonses, the Board produced the documents to the Magistrates' Court, but then objected to Mr Kuksal being granted access to them.[1] Having considered the objections the Magistrate struck out the summonses.
11 The Board's application to be removed as a party was made under r 9.06, which states:
At any stage of a proceeding the Court may order that -
(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;
(b) any of the following persons be added as a party -
(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
(c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.
12 The Board's affidavit supporting its application to be removed as a party states that as at 1 June 2023, Mr Kuksal has issued 21 summonses/subpoenas in various Magistrates' Court proceedings since 29 August 2022 on the Board, the Commissioner, the Commissioner's employees and/or persons relating to the Board and/or the Commissioner. These summonses and subpoenas sought similar, but not identical, categories of documents.
13 The Board relied on the following statement in Russell v Abbey[2] about the operation of r 9.06:
The phrase 'proper or necessary' in r 9.06(a) is linked with the operation of the conditions for joinder of parties under the Rules. That approach was adopted by Hollingworth J in Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd [No 1] and then followed by Lansdowne AsJ in Swindells v State of Victoria. Those decisions, read together with the rules for joinder under the Rules, present the following principles:
(a) a person is a 'necessary' party for the purposes of r 9.06(a) if the conditions for joinder under r 9.03 are satisfied (i.e. broadly where that party claims any relief to which the original plaintiff is claiming); and
(b) a person is a 'proper' party if either:
(i) the conditions for joinder as a party under r 9.02 are satisfied (i.e. broadly where either (i) if separate proceedings were brought by two or more parties, some common questions of law or fact would arise in those proceedings, (ii) all rights to relief claimed in the proceeding are in respect of or arise out of the same transaction or series of transactions, or (iii) the Court otherwise gives leave to the joinder); or
(ii) the conditions for joinder as a party under r 9.06(b) are satisfied (i.e. broadly where (i) the presence of that party is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon, or (ii) there may exist questions involving that party which it is just and convenient to determine in the proceeding).
14 The Board submitted that it was not a proper or necessary party to the proceeding. The summonses were not directed to the Board, nor did the plaintiffs seek any relief against the Board. There was no question of law or fact on which it could assist the Court and its presence as a party was not necessary to determine whether the Magistrates' Court order was lawful. The Court is not likely to decide whether the 'LSB parties' must comply with the summonses. Rather, the Court will determine whether the Magistrate made a legal or jurisdictional error and, if so persuaded, will remit the issue to the Magistrates' Court for rehearing. The plaintiffs' application seeking judicial review of the Magistrate's decision of 7 November 2022 relied on grounds of legal error and could not seek reconsideration of the merits of that decision. The originating motion did not articulate what was the unlawfulness that infected the Magistrate's orders. The Board had statutory functions and its continued participation in the proceeding constitutes an unnecessary cost and consumption of public resources. The Board did not need to be heard about whether the Magistrate's decision was correctly made, nor to be a party to the proceeding for any such purpose. The authorities relied on by Mr Kuksal about statutory authorities assisting the Court by submissions did not assist the plaintiff's case.
15 In the event that the Board is not removed as a defendant, it foreshadowed a likely application for summary dismissal or striking out of the proceeding against it.
16 Mr Kuksal submitted that judicial review procedure normally requires the party in the initial proceeding to be named as a party. The Court should be able to rely on assistance by way of submissions from the Board, which is a statutory body. The originating motion did contain a claim against the Board and sought orders that the LSB Parties 'comply with the subpoenas issued by the First Plaintiff'. The Board was therefore a party whose interests were likely to be affected by the orders that the plaintiffs seek. The Magistrates' Court orders were a nullity because of the jurisdictional errors made, so the LSB Parties obligation to give the documents remains alive. Therefore, this Court should determine whether or not the summonsed documents should be released to Mr Kuksal. The plaintiffs wanted this Court to instruct the Board to release the documents, because the Magistrates' Court order was a nullity due to jurisdictional error. They were not seeking that the matter be referred back to the Magistrates' Court. The Board produced the documents to the Court and gave Mr Kuksal redacted versions.[3] The Board has to comply with its legislation.
17 Counsel had been briefed on behalf of the Board to represent Ms Alevizopoulos and Mr Rapke.[4] The Board accepted that the summonses had been rightly issued to it and not to Ms Alevizopoulos in person.[5] Mr Kuksal contended that the Magistrate had assumed that both were direct employees of the Board that were investigating him, whereas Mr Rapke was Mr Kuksal's lawyer at the time.
18 Ms Xu submitted that the Board had challenged the summonses before the Magistrate and was an interested party in the proceeding. The Board informed the plaintiffs that it considered the summonses addressed to it. While the Board did not have to be an active participant in this proceeding, the Court should not remove it as a party.
19 In my opinion, the Board remains a proper and necessary party for the purposes of r 9.06. In judicial review proceedings it is common for a plaintiff to join as defendants not only the decision-maker or the Court or tribunal who has made the challenged order, but also the party who sought the decision or order. That is because it has an interest in maintaining the order that is challenged. That interest continues whether or not the party chooses to take an active part in the proceeding. The Board certainly took an active part in the Magistrates' Court application concerning Mr Kuksal's summonses. The Board apparently sought the orders that were made striking out the summonses. The summonses in issue are directed to an employee of the Board and to a person appointed to carry out functions in connection with a legal practice.[6] It was not suggested that the two persons should have been joined as defendants themselves to this proceeding, rather than the Board being joined. In this proceeding, the plaintiffs seek orders against the Board that the 'LSB parties' comply with the summonses issued by Mr Kuksal. It would be unusual for the Court to make such an order and there may be questions of whether it has power to do so. But the proceeding has not yet reached the stage where that issue is to be decided.
20 In addition, this Court may seek submissions from the Board and expect it to act as a contradictor about issues concerning the summonses that have to be decided. In that way the Board, which is a statutory authority may assist the Court.
21 Nevertheless, the Board is not obliged to participate in the hearing and, if it so chooses, can be an inactive party or make a Hardiman appearance.
22 I do not consider it appropriate to order that the Board be removed as a party. I will dismiss the Board's summons of 1 June 2023.
23 During the hearing, Mr Kuksal argued that in the conduct of proceeding S ECI 2023 00183, and in this proceeding, a fair-minded lay observer might reasonably apprehend that I had made prejudgments. What the prejudgments were was not made clear. Mr Kuksal was also unclear of the consequence if I agreed with his submission. He said that 'I think it's for the court to come back with a rethink and clarification' about limits on page numbers.[7] However, I will treat his application as containing an application that I not further hear this proceeding. Proceeding S ECI 2023 00183 arises from an incident that occurred at the Victorian Civil and Administrative Tribunal in Melbourne. As a result of that incident Mr Kuksal has been charged with breaches of the Crimes Act 1958, Court Security Act 1980 and Summary Offences Act 1966. Mr Kuksal's originating motion challenges actions or conduct of persons involved in the prosecution of the charges in the Magistrates' Court. I heard submissions about a number of issues in that proceeding on 30 and 31 May 2023 and reserved judgment.
24 As I understood Mr Kuksal, made the following assertions. That the Court had prioritised matters of procedure, including about the length of page numbers of affidavits, exhibits and submissions that could be filed, over more relevant issues. The Court had not considered the burden that such directions would have on the parties, bearing in mind that he was a self-represented litigant. He could not effectively make his case with the restrictions that are currently in place. The plaintiffs had a right to adduce the entire record of the proceeding under s 10 of the Administrative Law Act 1978 and it would be too onerous to condense the record to meet the page limits directed by the Court. The directions required that the plaintiffs summarise material and, as they were self-represented, they take assistance from administrative workers and there was an 'implantation risk'.[8] Mr Kuksal desired to put the entire record into evidence.
25 Mr Kuksal also argued that the Court had not focused on the equitable relief of declaration that he wished to obtain urgently before the Magistrates' Court hearing resumed. The Court had displayed a tendency not to interfere in jurisdictional issues. He contended that, during the hearing, the Court had changed its approach about how jurisdictional issues should be decided and whether they would be permitted to add additional jurisdictional arguments in this Court and when he could do that.
26 Mr Kuksal asserted that during the hearing on 30 and 31 May 2023, the Court had directed him to address particular issues and he had not been able to return to particular issues that he wished to advance, for instance amending references in his originating motion to sections of legislation. He was prevented from commencing his case. He also complained of the Court telling him that he did not have to read out passage from well-known authorities, whereas if he had been able to read them, it would have been harder for the other side to maintain their opposition.[9] The benchmark that was set for the allocation of time was not adequate, taking into account that the matter was not an average case.
27 The test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy.[10] The question is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.[11] The High Court stated:[12]
The apprehension of bias principle admits the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
28 Mr Kuksal's concerns arise from directions I made about the page limits of documents that he might file. The directions followed his filing and reliance on thousands of pages of documents in proceeding S ECI 2023 00183. Counsel appearing for a number of the defendants in that proceeding described how they had received documents prior to the hearing on Tuesday 30 May 2023: on the previous Friday afternoon a 550 page affidavit and 117 pages of submissions, on the Sunday afternoon 35 pages of submissions, on the Monday afternoon 83 pages of submissions, and later on the Monday afternoon 3 sets of submissions totalling 412 pages.[13] The exhibits to affidavits by a Mr Peter Ansell relied on by Mr Kuksal exceeded 14,000 pages, including exhibiting affidavits prepared for other proceedings.[14]
29 Thereafter, in making directions for affidavits, exhibits and submissions I specified their maximum page length. Thus, in this proceeding on 2 June 2023, I directed that affidavits be limited to 20 pages each with exhibits of 50 pages each. In one instance I directed that one affidavit that Mr Kuksal foreshadowed filing in proceeding S ECI 2023 00183 be no longer than 6 pages with no more than 6 pages of exhibits and 3 pages of submissions. The background to that direction was that after, I reserved judgment in proceeding S ECI 2023 00183, Mr Kuksal emailed my chambers stating that Ms Xu had identified a document that, he alleged, the defendants 'had sought to suppress from the record' of that proceeding. He sought to 'correct the record before the Court'. I directed that he might make an application in respect of the document by filing an affidavit and submissions subject to the page limitations mentioned. Mr Kuksal did not the length of the document, but if it had exceeded 6 pages, he could have made an appropriate application. In any event, Mr Kuksal has not filed any affidavit following the direction that I made.
30 My directions about page lengths applied to all parties, they were treated equally in that respect. However, substantially greater latitude was given to the plaintiffs when they presented their case, and they were given considerably more time than the defendants in putting their submissions. During the hearings on 30 and 31 May 2023, Mr Kuksal was allowed approximately six hours to make submissions, while the three groups of defendants' submissions occupied about an hour and a half in total.[15]
31 Mr Kuksal complained that the Court had not made an interim order or interim declaration in respect of the Magistrates' Court proceedings at the end of the argument in proceeding S ECI 2023 00183 on 31 May 2023. On those days, the plaintiff raised many arguments and issues with thousands of pages of documents produced. It was therefore appropriate that the Court reserve judgment. It was to be anticipated that the Magistrates' Court proceedings would not continue until the Court had delivered judgment. There was no expectation or application that this Court would make any interim order. There would have been no point in doing so as the issues argued have to be resolved finally. In any event, Mr Kuksal advised me during the hearing on 23 June 2023, that the proceedings in the Magistrates' Court had been 'effectively stayed' until I delivered my judgment.[16]
32 The Court and the litigants have obligations to ensure that the overarching purpose of the Civil Procedure Act 2010 is achieved. That Act provides:
7 Overarching purpose
(1) the overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution for the real issues in dispute.
33 The Civil Procedure Act gives the Court power to order and direct trial procedures in the conduct of the hearing in s 49. Those powers include:
(1) In addition to any other power a court may have, a court may give any direction of make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
...
(3) Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to-
...
(c) limiting the time to be taken by a trial, including the time a party may take to present the party's case;
...
(f) limiting the length or duration of written and oral submissions;
(g) limiting the number of documents to be prepared or that a party may tender in evidence.
34 The overarching purpose of the Civil Procedure Act is not achieved if litigants are permitted to file hundreds or thousands of pages of documents which may not be relevant to their issues. Litigants, including self-represented litigants, must be subject to directions that they can only file relevant documents. If such directions are not made, then the proceeding will be longer and the main issues obscured. In a case of judicial review, the relevant documents will normally include the order and decision challenged, written submissions and relevant pages of transcript. In most instances, this will not include the whole of the transcript and the parties must identify the relevant parts of transcripts.
35 Although self-represented, Mr Kuksal has, at least, the experience of commencing seven proceedings which are currently before the Court.
36 In making the directions about which Mr Kuksal complains, the Court was acting in accordance with the obligations imposed by the Civil Procedure Act. Parties can always apply to increase the permitted length of the documents to be relied on if the necessity arises. Mr Kuksal misconceived his right to tender the record of the proceedings in the Magistrates' Court. He referred to s 10 of the Administrative Law Act 1978. However, that section refers to the record, but that means documents that contain the reasons of the court or tribunal.[17]
37 In attempting to implement the purpose of the Civil Procedure Act, it is appropriate for the Court to inform litigants or counsel when the Court is familiar with authorities to which they propose to refer, as that removes the need for lengthy recitation of passages from those judgments. The primary purpose of making submissions is to persuade the Court, not, as Mr Kuksal appeared to consider, to convince the opposing party of the correctness of his case.
38 Mr Kuksal made submissions about comments that I made that about his ability to challenge in this Court, at an appropriate time, rulings of the Magistrate Court about jurisdiction that were adverse to his case.[18] There is no substance in his suggestion that the Court has in any way changed its approach to that issue.
39 Mr Kuksal has not established his assertion that a fair-minded lay observer might reasonably apprehend that the Court had prejudged any relevant issue or question of in the directions made about document length or the suggestion that he not read lengthy passages from well-known authorities, or on any other basis. At no point did Mr Kuksal identify what question that I am obliged to decide in this proceeding, or so far as it is relevant to this proceeding, that I am obliged to decide in proceeding S ECI 2023 00183, that a fair-minded lay observer might reasonably apprehend I had prejudged. What a fair-minded lay observer might reasonably apprehend is that the directions made were to ensure that there was a just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties. Although, Mr Kuksal did not frame his case as a denial of procedural fairness, I would add that, for the reasons, given above, he and Ms Xu have been given a reasonable opportunity to present their cases and have received all the procedural rights to which they are entitled.
40 Although, Mr Kuksal did not make an express application for recusal or disqualification, I will dispose of his application as if he had, as that was the logical result of his assertions, if they had been accepted. For the reasons I have given, I will order that his application, that I disqualify or recuse myself for further hearing this proceeding, be dismissed.
THE INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION
[1] National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372.
[2] [2018] VSC 259, [21] (Ierodiaconou AsJ).
[3] Transcript of Proceedings, Kuksal v State of Victoria (Victorian Supreme Court, S ECI 2022 04808, Ginnane J, 23 June 2023) 80.
[6] Legal Professional Uniform Law Application Act 2014 Sch 1 s 334.
[7] Transcript of Proceedings, Kuksal v State of Victoria (Victorian Supreme Court, S ECI 2022 04808, Ginnane J, 23 June 2023) 133-134.
[9] The cases included Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, Barton v R [1980] HCA 48; (1980) 147 CLR 75 and Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.
[13] Transcript of Proceedings, Kuksal v Mioch (Victorian Supreme Court, S ECI 2023 00183, Ginnane J, 30-31 May 2023) 185-7.
[14] Affidavits of Peter Ansell dated 2 February 2023, 26 April 2023, 26 April 2023, and 4 May 2023.
[15] Transcript of Proceedings, Kuksal v Mioch (Victorian Supreme Court, S ECI 2023 00183, Ginnane J, 30-31 May 2023) 220.
[16] Transcript of Proceedings, Kuksal v State of Victoria (Victorian Supreme Court, S ECI 2022 04808, Ginnane J, 23 June 2023) 93.
[17] Giurina v Director of Public Prosecutions [2017] VSC 289, [26]-[35]; Mortimer v Coroners Court of Victoria [2022] VSC 437.
[18] Transcript of Proceedings, Kuksal v Mioch (Victorian Supreme Court, S ECI 2023 00183, Ginnane J, 30-31 May 2023) 36-7.
Kuksal
State of Victoria [2023] VSC 438
(1989) 168 CLR 23
(1981) 151 CLR 170
(1980) 147 CLR 75
(1978) 142 CLR 1
(2000) 205 CLR 337