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[2023] VSC 625
General information, not legal advice.
Supreme Court of Victoria
2023-12-20
Ginnane J
Original judgment source is linked above.
JUDICIAL REVIEW - Criminal law - Magistrates' Court hearing - Declarations sought as to search warrant and arrest of the plaintiffs - Declarations sought as to decisions and rulings in Magistrates' Court hearing - Fragmentation of proceedings - Declarations refused.
PRACTICE AND PROCEDURE - Applications to amend originating motion and join parties - Whether amendments appropriate and joinder of parties convenient - Delay in commencing proceeding - Fragmentation of criminal proceedings - Applications dismissed - rr 9.02, 9.06.
PRACTICE AND PROCEDURE - IBAC's application for summary judgment of plaintiffs' proceeding - IBAC's application for proceeding to be dismissed as an abuse of proceeding - Complaint to IBAC - Standing of plaintiff who did not make the complaint - Proposed amended claims based on arguments that IBAC did not validly consider the complaint and the plaintiffs' Charter rights - Application for summary judgment dismissed Civil Procedure Act 2010 ss 63, 64; Independent Broad-based Anti-corruption Commission Act 2011 s 3(1), 4, 5, 7, 8, 15, 51, 58, 59, 62, 67, 73, 162, 163, 164; Public Interest Disclosure Act 2012 ss 1, 4.9, 26, 26A, 29, 39, 41, 45, 55; Charter of Human Rights and Responsibilities Act 2006 ss 8, 10, 12, 21, 38; Victoria Police Act 2013 ss 50, 125, 126, 227-228; Supreme Court (General Civil Procedure) Rules 2015 r 23.01.
PRACTICE AND PROCEDURE - Applications to reopen proceeding and to rely on recently discovered evidence after judgment reserved - Whether misapprehensions of law or fact - Limited new evidence admitted - Reopening otherwise refused.
COSTS - Application for judicial review and for declarations - Judicial review application commenced out of time - Extension of time not sought - Defendant issuing summons seeking dismissal of judicial review application if extension of time not sought - Plaintiffs abandoning judicial review application - Defendant entitled to costs of the summons - Supreme Court (General Civil Procedure) Rules 2015 O 56.
COSTS - Party seeking to be removed as a defendant - Application dismissed - Costs reserved.
Ms M Cananzi (on 28 July, 1-2 and 9-10 August 2023)
Solicitor of the Independent Broad-based Anti-corruption Commission
1 The plaintiffs, Mr Shivesh Kuksal and Ms Lulu Xu, commenced this proceeding by originating motion filed 23 November 2022. It named four defendants: the State of Victoria ('the State'), the Magistrates' Court of Victoria,[1] the Victorian Legal Services Board ('the VLSB') and the Independent Broad-based Anti-corruption Commission ('IBAC').
2 The matters to be decided in this judgment are the plaintiffs' application for leave to file a proposed amended originating motion ('PAOM') and to join additional defendants, the summonses issued by IBAC and the State of Victoria seeking the dismissal of the proceeding and the plaintiffs' applications to reopen the hearing that concluded on 10 August 2023, when I reserved judgment and to rely on recently discovered evidence.
3 For the reasons that I give in this judgment, I refuse the plaintiffs' application for leave to file the PAOM and to join additional defendants. I dismiss IBAC's summons. I grant the State of Victoria's summons to the extent of granting a temporary stay of this proceeding. I dismiss the plaintiffs' application to reopen the hearing to which this judgment relates, save to allow the admission into evidence of the prosecution note dated 7 November 2023 and the Magistrates' Court orders striking out the charges against Ms Xu. I also dismiss the plaintiffs' applications to rely on recently discovered evidence. The result is that, save for the plaintiffs' claim against IBAC, the remainder of this proceeding is stayed until the determination of the criminal charges, numbered N10047659 in the Magistrates' Court against the first plaintiff Mr Kuksal and of any appeal from, or any application for judicial review of, that determination.
4 On 6 January 2022, Victoria Police officers executed a search warrant issued by the Magistrates' Court at premises in Point Cook and arrested the plaintiffs.
5 Charges were then brought against the plaintiffs in the Magistrates' Court of Victoria in proceedings N10047659 and N10254563 ('the Olney proceedings'). They were charged with dishonesty offences in respect of furniture which was to be transported interstate, including obtaining property by deception and theft. The first plaintiff was also charged with committing an indictable offence, theft, whilst on bail.
6 On 7 January 2022, a Magistrate made bail orders for the plaintiffs.
7 As is later discussed, on 8 November 2023 the prosecution withdrew the charges against the second plaintiff and they were struck out. At that time, the prosecution informed the first plaintiff that it anticipated 'fil[ing] further charges against [him] prior to the committal hearing, rather than seeking leave to amend charges which are currently laid'.
8 On 19 January 2022, Mr Kuksal made a complaint to IBAC about the events of 6 January 2022, which IBAC decided not to investigate.
9 The plaintiffs' originating motion sought many determinations and declarations a summary of which is as follows.[2] First, about the validity of the search warrant issued. Secondly, about the plaintiffs' arrest, the conduct of Victoria Police on 6 January 2022 at the Point Cook premises and about allegations that Victoria Police officers converted goods belonging to corporations owned by the plaintiffs or the first plaintiff. That the conduct of the Victoria Police Accused on 6 January 2022 was in contravention of their oath of office as mandated by s 50 of the Victoria Police Act 2013, in breach of their non-disclosure obligations imposed by ss 227 and 228 of that Act. Thirdly, about the validity of bail orders made by a Magistrate on 7 January 2022. Fourthly, about IBAC's refusal to investigate a complaint about Victoria Police's conduct on 6 January 2022. Fifthly, that the charges brought against the plaintiffs and their prosecution were an abuse of the Magistrates' Court's process, carried out in contumelious disregard of the plaintiffs' rights and which brought the administration of justice into disrepute. Sixthly, that orders made by a Magistrate on 7 November 2022, denying Mr Kuksal's application to summons relevant information and documents from Ms A Alevizopoulos, a solicitor employed by the VLSB ('the VLSB solicitor') and Mr H Rapke, the appointed external manager of People Shop Pty Ltd trading as Erudite Legal ('the Manager') (collectively 'the VLSB parties') and refusing to release Mr Kuksal from non-disclosure obligations concerning the affidavit relied on to secure the search warrant ('search warrant affidavit') were pronounced in breach of Mr Kuksal's right to a fair hearing and in denial of procedural fairness and natural justice, were a manifestation of Wednesbury unreasonableness[3] and a nullity or otherwise unlawful.
10 In their originating motion, the plaintiffs sought orders under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules') and the laws of equity that the prosecutions be dismissed with costs, that the VLSB parties comply with the subpoenas issued by Mr Kuksal and that he be released from all disclosure obligations in relation to the search warrant affidavit.
11 During the hearing, the plaintiffs sought leave to file and to rely on two proposed amended originating motions ('PAOM'), the first dated 31 July 2023 and the second dated 3 August 2023, but which was provided to the parties the following day. The latter PAOM, which I will hereafter refer to as the PAOM, sought to join a further 23 defendants, including police officers, legal practitioners, VLSB staff or persons engaged by the VLSB and persons associated with the justice system. The PAOM contained many additional causes of action, some of which appeared to be based on the plaintiffs' allegations of a conspiracy being conducted against them. That conspiracy allegation was expressed in the existing originating motion in the following terms:
The evidence thus collected and further supplemented by the documents obtained through subpoena applications in the [Shivesh Kuksal] Proceedings presents irrefutable evidence of a shocking criminal conspiracy between various Victoria Police Officers, Nine Network Australia Pty Ltd, and the LSB.
Where a person's resources or an entity's resources are utilised or abused for an improper or unlawful conspiracy, such that that particular person themselves are innocent in respect of the designs of the other tortfeasors, then it is incumbent upon them to cooperate with the victim of the conspiracy to the extent that they can, in order for them not to incur direct liability.
14 The Court directed the plaintiffs to file and serve a summons seeking leave to file an amended originating motion by 14 July 2023, but they did not do so. They served affidavits on the VLSB but it contended that they did not provide access to all their exhibits. The defendants submitted that the plaintiffs should not be able to rely on those affidavits when they had provided no reason for not complying with the Court's directions and had delayed in seeking to amend their originating motion.
15 Mr Kuksal argued that the plaintiffs' application to amend the originating motion and join additional parties should be permitted because they were entitled to rely on new evidence and were not fundamentally widening the issues in dispute. He contended that many of the changes contained in the PAOM were necessary because the relevant parties had made inadequate disclosure of documents. He submitted that the joinder of parties was desirable, as otherwise the plaintiffs might have to commence a multiplicity of proceedings to make their claims, which would be contrary to the overarching purpose of the Civil Procedure Act 2010 ('Civil Procedure Act').
16 I have considered the defendants' submissions, but I take into account that during the hearing, they had the opportunity to, and did, make extensive submissions about the plaintiffs' two PAOMs. I consider it appropriate to decide the plaintiffs' application for leave to file the PAOM, even though they failed to file a summons, and to do so before determining the summonses of the IBAC and the State. I consider that I should decide the plaintiffs' oral application for leave to amend by reference to the second PAOM, that dated 3 August 2023. So I will next summarise the many allegations and claims that it makes and the parties' submissions about it.
The plaintiffs' submissions about the PAOM and joinder of parties
17 The plaintiffs' PAOM seeks many determinations and declarations based on numerous grounds and, as I have mentioned, seeks to join 23 additional defendants. While I will attempt a summary of the grounds, I will not describe in detail all the many allegations they contain. I take parts of the summary from the plaintiffs' oral submissions. It is important to record that the proposed additional parties have not had the opportunity to respond to the allegations that the plaintiffs make. I therefore make no finding about the veracity or accuracy of those allegations.
18 The grounds commence with a section headed 'The illegality of Victoria Police's actions against the plaintiffs', which alleges that:
Victoria Police's investigation of the First Plaintiff and its officers' invasion of the Plaintiffs' residence, arrest, imprisonment and associated actions on 6 and 7 January 2022 were unlawful because...
19 The plaintiffs seek declarations and determinations concerning the validity of the search warrant and they seek to join as a defendant the police officer who made the search warrant affidavit.
20 The second declaration sought in the PAOM was that on 6 January 2022, the plaintiffs were subjected to unlawful arrest, false imprisonment, assault, battery, infliction of mental harm and disruption to their business activity. It is also contends that on that day that police officers trespassed on and broke into the premises and converted the plaintiffs' goods or those belonging to corporations owned by the first plaintiff.
21 The plaintiffs seek to join 12 police officers whom they allege were involved in the events on 6 January 2022. The 6th-8th proposed defendants are described as the 'Alleged Police Offenders'. The 9th-14th proposed defendants are described as the 'Alleged Police Intruders'. The 15th-17th proposed defendants are described as the 'Alleged Police Trespassers'. I will on occasion refer to these proposed defendants as 'the police parties'.
22 The plaintiffs seek declarations that the 'Alleged Police Offenders' conduct was 'improper conduct' within s 4 of the Public Interest Disclosures Act 2012 ('PID Act'), was 'corrupt conduct' within s 4 of _the Independent Broad-based Anti-_corruption Commission Act 2011 ('IBAC Act') and constituted breaches of the Victoria Police Act 2013 ('VP Act').
23 The PAOM contains many grounds under the heading 'The evidence of police misconduct'. They include allegations that police officers broke into the premises hours before the search warrant was issued. They allege that police engaged in criminal conduct, and in that regard the plaintiffs rely on an audio recording made on one of their phones during the execution of the search warrant. A video of the Victoria Police's alleged unlawful raid of the premises was broadcast one business day later on the television program 'A Current Affair'. The plaintiffs alleged that the VLSB co-ordinated with the segment reporter to release an inflammatory statement publicly vilifying Mr Kuksal, a copy of which it published on its website.
24 The PAOM contains a section titled 'Victoria Police's efforts to falsely implicate the plaintiffs in the commission of criminal offences'. It contains grounds B15-B30. For example, it alleges that statements in the search warrant affidavit were false. The PAOM also contains a section headed 'The deliberate conversion & theft of the first plaintiff's property by Victoria Police officers', which contains grounds B31 to B41.
25 The plaintiffs seek declarations that the prosecutions are a nullity and the charge sheets are defective beyond cure. They also seek declarations that the informant and lawyers involved in the prosecution and the Office of Public Prosecutions ('OPP') have engaged in conduct which was an abuse of the court's criminal jurisdiction and engaged in the malicious prosecution of the plaintiffs.
26 The plaintiffs seek declarations against two former employees or directors of Avant-Garde Logistics Solutions Pty Ltd,[8] ('AGLS'), the proposed twenty-fifth and twenty-sixth defendants who are described as 'Alleged Fraudulent Fiduciaries'. They are alleged to have breached their statutory obligations as directors, acted in concert with Victoria Police in relation to the prosecutions and perverted or attempted to pervert the course of justice.
27 The plaintiffs allege that the twenty-sixth proposed defendant is a necessary party because she advised the informant that Mr Kuksal had unlawfully recorded the events of Victoria Police's allegedly unlawful invasion of his Point Cook premises. She is alleged to have been involved in the transcription of that recording when the Law Firm representing the plaintiffs was preparing documents, including the affidavits of Mr Kuksal, Mr Peter Ansell and Ms Xu. She is alleged to have breached her statutory and fiduciary obligations.
28 The plaintiffs seek declarations that bail orders made on 7 January 2022 were obtained through 'equitable fraud perpetrated on the court' and were a nullity.
29 The plaintiffs seek declarations about other Magistrates' Court orders contending that they 'have been nullities at law since the respective dates of their purported commencement'. The plaintiffs seek to join as a defendant a person associated with that proceeding in which those orders were made.
30 The plaintiffs seek declarations that IBAC committed a jurisdictional error or error of law in dismissing the plaintiffs' complaint on 5 August 2022.
31 The plaintiffs again seek declarations that a Magistrate's orders made on 7 November 2022 setting aside the first plaintiff's subpoenas (summonses) issued to the VLSB parties and refusing him release from non-disclosure obligations concerning the search warrant affidavit were made in jurisdictional error, issued in denial of procedural fairness to the first plaintiff, obtained through equitable fraud perpetrated on the Court and are a nullity.
32 The PAOM contains an extensive section directed at 'the LSB's Parties' Improper Conduct'. It alleges that the VLSB parties, the individuals, the Manager and the VLSB solicitor, engaged in professional misconduct within the meaning of the Legal Profession Uniform Law Application Act 2014 ('the Uniform Law') and perverted or attempted to pervert the course of justice and alleges, additionally, that the Manager breached sections of the Corporations Act 2001 (Cth) ('Corporations Act').
33 The plaintiffs seek declarations that in undertaking those actions, the VLSB made a jurisdictional error, abused its authority, acted in violation of the statutory objectives behind the Uniform Law, engaged in improper conduct within the meaning of s 4 of the PID Act, manifested corrupt conduct as defined in s 4 of the IBAC Act and perverted or attempted to pervert the course of justice.
34 Examples of 'the LSB's Improper Conduct' contained in the PAOM include allegations about the actions of the person appointed by the VLSB as Manager of the legal practice People Shop Pty Ltd trading as Erudite Legal ('the Law Firm'), who was then Mr H Rapke.[9] The plaintiffs expanded on these allegations in an Addendum document dated 2 August 2023, which I will next summarise.
35 The allegations include that the Manager withdrew the Law Firm's representation of the plaintiffs without proper notice or proper basis in a manner that prejudiced their rights and interests in the Olney proceedings. The Manager unlawfully disclosed to Victoria Police legally privileged information concerning the evidence that the plaintiffs had gathered against it and the case that they were preparing to bring against it. The Manager seized the plaintiffs' case files to prevent them from effectively running their defence in the Olney proceedings and bringing their claims against Victoria Police, shut down the Law Firm's operations and prevented its staff from assisting the plaintiffs in their preparation for those proceedings. The Manager improperly communicated with a police employee solicitor involved in the prosecution ('the police employee prosecutor') and/or Victoria Police while the Law Firm was representing the first plaintiff, without his consent or knowledge. The Manager improperly opposed the first plaintiff's subpoena application heard on 9 September 2022 and decided on 7 November 2022. The Manager improperly accepted legal representation from the VLSB while he was the external manager of the Law Firm that the plaintiffs had engaged to commence proceedings against the VLSB.
36 The allegations against the VLSB solicitor, the proposed twenty-fourth defendant, are as follows. That she communicated with the prosecutor in the Olney proceedings on the day of the contest mention, 24 August 2022, to improperly influence him to continue the prosecution of a hopeless matter. She incited the Law Firm's former director, the proposed twenty-sixth defendant, to make false claims to incriminate the plaintiffs in the commission of criminal proceedings. She improperly opposed the subpoena application of the first plaintiff heard on 9 September 2022 and decided on 7 November 2022.
37 The allegations against the VLSB are as follows. The VLSB critically misrepresented facts concerning the correspondence sent on behalf of AGLS to its clients so as to cause Victoria Police to conclude that the first plaintiff had defrauded or sought to defraud them to his financial benefit. The VLSB had procured legal representation for the VLSB solicitor and the Manager and thereby improperly opposed the first plaintiff's subpoena applications on 9 September 2022 leading to their unlawful dismissal on 7 November 2022. The VLSB instructed or influenced the VLSB solicitor and/or the Manager to perform the actions described above. The VLSB's publication on its website on 10 January 2022 was an improper use of information obtained through the search warrant issued by the Magistrates' Court on 6 January 2022.
38 The Addendum describes the relief or declarations sought in respect of the VLSB parties as follows. That the Manager contravened ss 180-184 of the Corporations Act and engaged in professional misconduct within s 297 of the Uniform Law and perverted or attempted to pervert the course of justice. That the VLSB solicitor engaged in professional misconduct within s 297 of the Uniform Law and perverted or attempted to pervert the course of justice.
39 The Addendum describes the relief or declarations sought against the VLSB as follows. That it committed jurisdictional error and abused its authority. That it acted in violation of and contravention of its statutory objectives as set out in s 3 of the Uniform Law, that it engaged in 'improper conduct' within the meaning of s 4 of the PID Act and 'improper conduct' as defined in s 4 of the IBAC Act and perverted or attempted to pervert the course of conduct.
40 In the PAOM, the plaintiffs seek declarations concerning 'Victoria Police's failure to perform its duty' and the actions of a police employee prosecutor, the proposed nineteenth defendant, in not escalating the first plaintiff's complaint regarding the 'Alleged Police Offenders' to the Chief Commissioner of Police. The Chief Commissioner is alleged to have breached his statutory obligations by not investigating the first plaintiff's complaint against Senior Constable Olney. The plaintiffs seek to join as defendants the police employee prosecutor and the Chief Commissioner of Police.
41 The plaintiffs submitted that the police parties were necessary defendants because the relief sought impugned their character and might have consequences for them, when they might be unaware of this proceeding.[10] The State will represent all of them and Mr Kuksal wishes to avoid a situation where the joinder of parties becomes necessary at a much later stage.
42 The plaintiffs also seek declarations about what they describe as 'Victoria Police's Conspiracy with the LSB' including that 'in wilfully abusing information and/or property that had been forcefully obtained from the Plaintiffs' residence through the search warrant [and the] the Alleged Police Offenders and the LSB acted in contempt of court'.
43 Grounds B87 to B97 contain details of this alleged conspiracy. They include allegations that the VLSB played a critical role in influencing Victoria Police officers to suspect that the first plaintiff had defrauded the complainants by passing himself off as a legal practitioner, unlawfully disclosed the plaintiffs' privileged case file that the Law Firm had maintained against Victoria Police through the appointment of the Manager and disrupted the plaintiffs' legal representation and compromised their interests in relation to the Olney proceeding through appointing the Manager. Allegations are also made about the VLSB's January publication on its website, including that 'in listing all the recognised trading corporations owned by the first plaintiff, that publication left 'no doubt that the First Plaintiff [was] the target of the LSB's vilification'.
44 The plaintiffs sought to join other persons as defendants. One was a barrister, the proposed twentieth defendant, who had appeared for the prosecution on two occasions in preliminary hearings. He was alleged to have improperly applied for the revocation of Mr Kuksal's and Ms Xu's bail on the 14 December 2022, when Mr Kuksal was running late for Court and did not appear when his case was called. He and Ms Xu were on their way to Court as Ms M Di Gregorio, who is a business associate of Mr Kuksal, informed the Court. The plaintiffs argued that because the Court was soon closing, the revocation of the plaintiffs' bail may have resulted in them being detained in custody for weeks. They also alleged that the barrister would not return to Court to represent the prosecution after Mr Kuksal arrived and applied for the revocation of the arrest warrant that the Magistrate had issued. The Magistrate would not revoke the arrest warrant unless the prosecution barrister was present. The plaintiffs also allege that the barrister breached prosecution disclosure obligations. Following the escalation of the matter to the committal stream, a number of documents were discovered by the prosecution which had not been previously provided to the plaintiffs.[11]
Ms Xu's submissions about the PAOM and the joinder of parties
45 Ms Xu, in her submissions about the PAOM and the joinder of parties, contended that all the police officer parties, who were present at the Point Cook premises, trespassed and broke the law on 6 January 2022. She alleged that the police affidavit was false which affected the Magistrates' Court decision to issue a search warrant. The admissibility of evidence obtained under the search warrant will be relevant in the Magistrates' Court determination of the charges.
46 Ms Xu justified the joinder of the police parties on the basis that this Court will have to make factual findings about the events of 6 January 2022 in deciding whether to grant the plaintiffs the declaratory relief that they seek. The factual findings required include the police fraud in obtaining the search warrant, the unlawful arrests, trespass and other unlawful acts.
47 Ms Xu contended that the Magistrates' Court would not hear the plaintiffs about these matters and she doubted whether it would hear or take into consideration arguments about the legality of the events of 6 January 2022.
48 Ms Xu disputed the VLSB's submission that the plaintiffs had no evidence that it had communicated with other parties about them. The plaintiffs contended that the solicitor sent private messages to the Magistrate's clerk confirming she was from the VLSB and observing the proceedings.
49 Ms Xu also disputed the suggestion that the VLSB, or the Manager could waive the plaintiffs' legal privilege. She argued that the VLSB and the VLSB solicitor were responsible for the Magistrate's decision to set aside the plaintiffs' summonses on 7 November 2022 which was made on the wrong assumption that the Manager was an employee of the VLSB.
50 Ms Xu argued that the Uniform Law protected the VLSB from criminal liability, so it would not be adversely affected by the making of the declarations sought. However, she argued that because a decision made by the VLSB, or anyone working for it, was an administrative decision, not a judicial decision, it could be subject to collateral attack.
51 Ms Xu contended that in order to enable this Court to compel the VLSB to release the documents that the plaintiffs sought, the Manager and the VLSB solicitor should be parties to the proceeding.
52 The plaintiffs seek orders prohibiting the Magistrates' Court from continuing the Olney prosecutions, orders affirming the plaintiffs' entitlement to compensation for unlawful arrest pursuant to art 9 of the International Covenant on Civil and Political Rights and under common law, orders declaring that the State has converted goods seized from the plaintiffs' premises on 6 January 2022 and ordering that they be paid compensation, orders that the VLSB parties release all information sought through the subpoenas that were dismissed on 7 November 2022, orders requiring the defendants to release to the plaintiffs all information in their possession concerning them, orders declaring the appropriateness of having the State promptly pay the plaintiffs' costs in the Olney prosecutions on an indemnity basis and ordering the defendants to pay the plaintiffs' costs of the current proceeding on an indemnity basis.
The defendants' submissions about the PAOM and joinder of parties
53 The defendants opposed the plaintiffs being granted leave to file the PAOM and argued that they had provided no evidence of the proposed defendants' interests in the issues to be decided in the proceeding. The plaintiffs had provided no basis, either by evidence or submissions, on which the Court might conclude that it was appropriate under r 9.06(b) that any of the proposed parties should be joined.
54 The State opposed the addition of the individual police officers as defendants as they could be represented by the State of Victoria under s 74 of the VP Act which makes the State responsible for their actions.
55 The State argued that the plaintiffs' allegations about the falsity of the affidavit used to obtain the search warrant were a matter for the Magistrates' Court to consider.
56 The State argued that the plaintiffs' complaints about the barrister, the proposed twentieth defendant, who was briefed by the Victorian Government Solicitor's Office ('VGSO') on the bail application were irrelevant and unrelated to the Olney proceedings. Nor had the plaintiffs provided any evidence against the proposed nineteenth defendant, who was an employee solicitor for Victoria Police and who was performing his professional duties.
57 The proposed twenty-fifth defendant, who was associated with AGLS, was not a proper or necessary party. The meaning of the allegation that Victoria Police attempted to incite him into making allegations was not clear.
58 The VLSB opposed the joinder of the VLSB parties. They had not been provided with all the documents upon which the plaintiffs relied and the allegations against them had nothing to do with the underlying criminal charges against the plaintiffs. The PAOM made wide ranging and unsubstantiated allegations against the VLSB, which failed to identify an action or decision which might be amenable to judicial review or declaratory relief. The plaintiffs were regularly expanding their claims and were thereby likely to cause substantial delay in the proceeding. The additional claims were liable to be struck out under s 63 of the Civil Procedure Act as having no real prospect of success. Although the plaintiffs were self-represented litigants, they still had to follow procedural rules.
59 The plaintiffs' request that the Court make findings about whether the Manager and the VLSB's solicitor's conduct amounted to unprofessional conduct or professional misconduct under the Uniform Law did not give rise to a cause of action. The plaintiffs have commenced another proceeding against the VLSB parties challenging the appointment of the Manager to the Law Firm and any valid claim about the VLSB parties could be made in that proceeding.[12]
60 The VLSB solicitor's actions in the hearing on 7 November 2022, when the Magistrate set aside the first plaintiff's summonses, were associated with valid objections being made to those summonses. The Magistrate found that the summonses lacked a forensic purpose.[13] The VLSB successfully objected to 21 summonses issued by the first plaintiff.[14]
Analysis of the plaintiffs' amendment and joinder applications
61 In order to obtain leave to file an amended pleading or originating motion and to join parties as a result, the applicant's amendment must not be futile or liable to be struck out because it has no real prospect of success. [15]
62 I refuse leave to the plaintiffs to file the PAOM dated 3 August 2023 and, for the sake of completeness, that dated 31 July 2023. I therefore refuse the plaintiffs leave to join the additional defendants named in those documents. As I later discuss, I will grant the plaintiffs leave to deliver an amended originating motion containing the amended claims against IBAC which are included in the PAOM of 3 August 2023. My reasons for otherwise refusing leave for the plaintiffs to file and serve the PAOM are as follows.
63 First, I accept that the Court's has extensive power to grant declaratory relief. As the plurality stated in Ainsworth v Criminal Justice Commission:[16]
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have) not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".
64 However, the PAOM seeks the grant of declarations concerning criminal proceedings and alleged criminal conduct. For example, declarations are sought that proposed defendants have engaged in a conspiracy to pervert the course of justice. Courts are reluctant to by-pass procedural and evidentiary rules of the criminal justice system that provide protection for the accused by making findings that may impinge on pending criminal prosecutions. One explanation for this reluctance is that:[17]
The amount of criminal work done by the superior courts would expand enormously if they were to indicate a willingness to grant declarations on single issues arising within a criminal matter... civil courts "exercise great caution before hearing and determining civil proceedings that raise common issues that are to be determined in criminal proceedings".
Where there are concurrent proceedings in different courts between parties who for practical purposes are the same in each, and the same issue will have to be determined in each, the court has jurisdiction to stay one set of proceedings if it is just and convenient to do so or if the circumstances are such that one set of proceedings is vexatious and an abuse of process of the court. Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the court, it is not a proper exercise of the court's discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged.
66 By way of example, the plaintiffs apply for a declaration that the VLSB or proposed defendants perverted or attempted to pervert the course of justice. If the Court made such a declaration it would fragment criminal proceedings, a step which should not occur, except in special or exceptional cases.[20] To depart from this principle would delay the criminal proceeding and make its completion open to interlocutory applications and appeals.
67 Secondly, the declarations and remedies sought by the plaintiffs would result in this Court taking over the hearing of the charges pending in the Magistrates' Court and, as the plaintiffs seek, make an order terminating them. That would be to bypass the trial jurisdiction of the Magistrates' Court.
68 Thirdly, many of the declarations sought by the plaintiffs could only be made after the Court had heard evidence and made findings of fact. Courts are unlikely to grant a declaration where the case is fact sensitive and its outcome may depend on the view taken of the particular facts in the case.[21] As the High Court emphasised in Bass v Permanent Trustee Co Ltd,[22] in most instances, declarations can only be granted in respect of agreed or proved facts.
69 In this case, the trial court is the Magistrates' Court and it is not for this Court to supplant its role. There are no agreed facts in this proceeding on which the Court could make the declarations that the plaintiffs seek. The PAOM raises a wide range of issues and the determination of most of them would require findings as to the facts. As I explained to the plaintiffs, the Court can only grant declarations after hearing the evidence from all the parties and making finding of facts based on that evidence. For this Court to grant such declarations would cut across the issues raised in the criminal proceeding which await determination in the Magistrates' Court or the County Court.
70 Fourthly, the plaintiffs in the PAOM, in effect, seek that the Court conduct an inquiry into a wide range of events and the conduct of people with whom the plaintiffs have been involved, when those events are not all directly related to each other. It would be inconvenient to join the disparate claims in one proceeding. I raised with Mr Kuksal on a number of occasions whether it was convenient to have all these claims joined together. I put to him that he may be taken to be seeking the Court to undertake an inquiry into how he was treated by various Government and public bodies and officers.[23] In my opinion, the effect of granting the plaintiffs leave to rely on the PAOM would be to launch a form of court inquiry into the conspiracy that the first plaintiff alleges, under the guise of a judicial review application or an application for declarations. The Court should not undertake such an inquiry and it would not be a proper use of judicial review or declaratory proceedings to do so, especially while the hearing and determination of the criminal charges awaits.
71 Rule 9.02 provides for when two or more persons may be joined as plaintiffs or defendants in any proceeding as follows:
Two or more persons may be joined as plaintiffs or defendants in any proceeding -
(a) where-
(i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; or
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or a series of transactions; or
(b) Where the Court, before or after the joinder, gives leave to do so.
72 Rule 9.04 gives the Court power to disallow any joinder of claims or of parties where it may embarrass or delay the trial in the proceeding or cause prejudice to any party or is otherwise inconvenient. In those circumstances, the Court may order that there be separate trials, any claim be excluded, any party be compensated by an award of costs or otherwise and any person be made a party on, or without, condition that that party be bound by the determination of the questions in the proceedings.
73 The basic principle governing the permissive joinder of parties is that the court should take whatever course seems to be most conducive to a just resolution of the dispute between the parties, but having regard to the desirability of limiting, so far as practical, the costs and delay of the litigation.[24] In this case, that basic principle is also subject to the application of the principle against the fragmentation of criminal proceedings.
74 In my opinion, to allow the PAOM and the joinder of the additional defendants would be contrary to the purposes of rr 9.02 and 9.04, because it would join claims that have no connection with each other. It would also infringe the principle against the fragmentation of criminal proceedings.
75 Fifthly, the plaintiffs' claims against the VLSB and its agents can be raised in the other proceeding commenced in this Court by the plaintiffs against the VLSB, the Manager and others, which challenge decisions of the VLSB and its delegates or agents made concerning the Law Firm.[25]
76 Sixthly if the plaintiffs were permitted to rely on the PAOM, this proceeding would become a 'rolling' judicial review proceeding or claim for declaratory remedies. That term is sometimes applied to applications made to add claims arising after the commencement of judicial review proceedings. It can equally be applied to applications to add further claims in proceedings seeking declaratory relief. A statement of judicial opposition to such rolling claims is found in R (Dolan) v Secretary of State for Health and Social Care[26] where the England and Wales Court of Appeal stated:[27]
In a number of recent cases this Court has noted that there is 'increasing concern about the need for appropriate procedural rigour in judicial review cases': see R(Spahiu) v Secretary of State for the Home Department: Practice Note, where earlier authorities are set out (Coulson LJ). The present case leads us to repeat that concern.
Procedural rigour is important not for its own sake. It is important in order for justice to be done. It is important that there must be fairness to all concerned, including the wider public as well as all the parties. It is important that everyone should know where they stand, so that, for example, the defendant can properly prepare evidence in a timely fashion.
This Court has also deprecated the trend towards what has become known as a 'rolling' approach to judicial review, in which fresh decisions, which have arisen after the original challenge and sometimes even after the first instance judgments, are sought to be challenged by way of amendment.
77 Seventhly, there is little factual evidence in support of the claims in the PAOM. Many parts of the affidavits upon which the plaintiffs rely have not yet been admitted into evidence and appear to contain many assertions that may not be admissible.
78 I will next consider IBAC's application seeking summary dismissal of the plaintiffs' proceeding against it.
79 On 19 January 2022, Mr Kuksal made a complaint to IBAC by email, the subject matter of which was 'disclosure concerning Victoria Police corruption' and which concerned the police actions on 6 January 2022 and associated conduct. His email stated:
Further to my conversation with one of your officers last Monday, 10 January 2022, please find, at the end of this email, a link to a Dropbox folder containing evidence of corrupt conduct by members of Victoria Police. The evidence demonstrates instances of serious professional misconduct and unlawful activities by members of Victoria Police, including:
Breaking in and entering a private premises before the grant of a search warrant - on the presumption that it would be granted later.
Conspiracy to frame members of the public in criminal offences.
Disclosure of confidential information obtained through a search warrant to the media.
Conspiracy to seize goods unlawfully under the pretext of proceeds of crime.
Contempt of court - seizure of more goods than authorised by the search warrant and conspiracy to fabricate justification evidence.
Conspiracy to unlawfully arrest and falsely imprison members of the public.
Conspiracy to defraud the Court to unlawfully obtain a search warrant.
I would also like to advise you that a significant proportion of the items collected as evidence through the search warrant have already been disposed of. This is tantamount to both an abuse of process and destruction of evidence.
80 Between 25 January and 7 February 2022, Mr Kuksal sent the following materials to IBAC in support of his complaint:[28]
(a) copy of a search warrant issued on 6 January 2022 issued under section 465 of the Crimes Act 1958 (Vic);
(b) unconfirmed transcript of the bail hearing relating to the First Plaintiff, conducted on 7 January 2022;
(c) unconfirmed transcript of the police interview of the First Plaintiff, conducted on 6 January 2022;
(d) unconfirmed transcript of the police interview of the Second Plaintiff, conducted on 6 January 2022;
(e) unconfirmed transcript of the remand interview of the First Plaintiff, conducted on 6 January 2022;
(f) unconfirmed transcript between a Victoria Police Sergeant and the First Plaintiff;
(g) an 'A Current Affair' multimedia video relating to the First Plaintiff; and
(h) audio files relating to the first plaintiff's arrest on 6 January 2022.
81 By letter of 5 April 2022, the Director of IBAC's Assessment and Review Team, informed Mr Kuksal that IBAC had decided not to investigate or refer his complaint to another agency for investigation. The letter stated that:
IBAC's decision regarding your complaint
IBAC has decided not to investigate or refer your complaint to another agency for investigation. IBAC decides to not take further action in relation to a complaint for a number of reasons, which are set out in legislation, specifically section 67 of the Independent Broad-based Anti-Corruption Commissioner Act 2011 (IBAC Act). In general, IBAC prioritises investigations into allegations of serious or systemic public sector corruption and police misconduct, that appear to have enough merit to investigate, and which involve matters not previously dealt with by IBAC or another agency.
...
Decision about whether the complaint is a public interest complaint
IBAC is required to assess whether complaints we receive are public interest complaints under the Public Interest Disclosures Act 2012 (PID Act). The purpose of this assessment is to determine what confidentiality obligations apply to your complaint.
In this instance, IBAC has determined that the matter is not a public interest complaint. This decision was made after consideration of the information provided. This decision was made in accordance with section 26 of the PID Act, particularly subsection 3. Specifically, the information doesn't show or tend to show the public officer engaged in improper conduct or detrimental action.
This decision means that the confidentiality provisions under part 7 of the PID Act do not apply, and that IBAC may provide your identity, or contents of the complaint, to other agencies as appropriate. Although IBAC has determined your complaint is not a public interest complaint, you will still be entitled to the protections under part 6 of the PID Act. The enclosed fact sheet explains these protections.
...
The declarations that the plaintiff sought against IBAC
82 The plaintiffs in their originating motion seek declarations that:
[IBAC] committed an error of law and/or acted unreasonably in refusing to investigate the Plaintiffs' complaint and/or IBAC's failure to investigate the Victoria Police Officers involved in the events of 6 January 2022 that took place at the premises (Victoria Police Accused) was in contravention of its statutory obligations.
The conduct of the Victoria Police Accused satisfied the requirements set by s 4 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) for corrupt conduct.
83 By way of background to the plaintiffs' attempts to further specify their case against IBAC, I note that their PAOM of 31 July 2023 sought determinations and declarations that:
The Independent Broad-based Anti-corruption Commission [IBAC] committed a jurisdiction[al] error or error of law in dismissing the Plaintiffs' complaint on 5 April 2022.
84 The grounds on which that declaration was sought were:
IBAC's Failure to Fulfil its Obligations
B.89 In dismissing the Plaintiffs' complaint on 5 April 2022, IBAC acted in a manner contrary to:
B.89.1 The objects of the IBAC Act, as set out in section 8 of that Act;
B.89.2 Its obligations pursuant to sections 15, 58 and 59 of the IBAC Act;
B.89.3 The purpose of the Public Interest Disclosures Act as specified in section 1 of that Act;
B.89.4 Its obligations pursuant to sections 26 and 45 of the Public Interest Disclosures Act.
85 In the PAOM dated 3 August 2023, the plaintiffs seek determinations and declarations that IBAC had:
committed a jurisdiction[al] error or error of law in dismissing the plaintiffs' complaint on 5 April 2022.
86 The plaintiffs also sought determinations and declarations that on 6 January 2022, the conduct of the 'Alleged Police Offenders':
87 The plaintiffs' grounds for seeking these declarations as set out in ground B.81 under the heading 'IBAC's Failure To Fulfil Its Obligations' are:
In dismissing the plaintiffs' complaint on 5 April 2022, IBAC acted in a manner contrary to:
1. The objects of the IBAC Act, as set out in section 8 of that Act;
2. Its obligations pursuant to sections 15, 58 and 59 of the IBAC Act;
- The purpose of the Public Interest Disclosures Act as specified in section 1 of that Act;
- Its obligations pursuant to sections 26 and 45 of the Public Interest Disclosure Act; and
- IBAC's obligation to consider the impact of its decision on the Plaintiffs' human rights pursuant to section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
88 By summons dated 14 July 2023, IBAC sought summary judgment of the plaintiffs' proceeding against it pursuant to s 63 of the Civil Procedure Act, and an order that the plaintiffs' claims against it be dismissed. In the alternative, IBAC sought an order that the plaintiffs' claims against it be dismissed because they were an abuse of process of the Court.
... the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.
90 Warren CJ and Nettle JA, summarised the present state of authority on the granting of summary judgment as follows:[31]
Upon the present state of authority:
a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;
b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;
c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;
d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
91 IBAC submitted that the plaintiffs' claims against it had no real prospect of success. The plaintiffs had provided no evidence in support of the declaratory orders that they sought against it. They had been given an opportunity to provide exhibits to affidavits but had not done so.
92 During its submissions, IBAC accepted that Mr Kuksal had standing to bring his proceeding. However, IBAC submitted that Ms Xu had no standing to bring her claim because she had not made a complaint and it had not decided a complaint made by her.
93 Secondly, IBAC submitted that, even if both plaintiffs possessed standing, the declarations that they sought would have no utility. Declaratory relief will not be granted when the relief claimed concerns circumstances that have not occurred and may never occur. Even if the declarations sought were made, IBAC would remake the same decision under s 58 of the IBAC Act.
94 Thirdly, the declaration sought by the plaintiffs that the conduct of the 'Alleged Police Offenders' satisfied the requirements of s 4 of the IBAC Act for 'corrupt conduct' could not be sought in a judicial review application as it involves a form of merits review of IBAC's decision. The Court does not have jurisdiction to hear an appeal from a decision of IBAC and cannot substitute its decision for IBAC's.
95 Fourthly, the plaintiffs had not established that IBAC had committed any jurisdictional error and they bore the onus of so proving.[32] IBAC's decision comprised one line, 'IBAC has decided not to investigate or refer your complaint to another agency for investigation'. IBAC's letter contained no reasons for its decision, nor was it obliged to do so.
96 IBAC was permitted to make a decision not to investigate a complaint by s 67 of the IBAC Act, which gives it an 'absolute discretion' to determine that a complaint does not warrant investigation. It is required to dismiss a complaint by ss 60(2) and 58(a) if it does not reasonably suspect that the conduct is corrupt conduct. In deciding whether to investigate a complaint, IBAC is permitted to take into account the prioritisation of investigations into allegations of serious or systemic public sector corruption and police misconduct. It is to be inferred that IBAC made a decision under s 67 and determined in its absolute discretion that the complaint did not warrant investigation because do so would not prioritise complaints involving systemic misconduct.
97 IBAC relied on the fact that the plaintiffs' claims for judicial review were out of time being commenced beyond the 60-day period specified in r 56.02 and that they had not applied for an extension of time. The claims about the events of 6 January 2022 were made eight-and-a-half months out of time. On 2 June 2023, the Court ordered the plaintiffs to make any application for an extension of time by 16 June 2023, but they did not do so. IBAC's supporting affidavit explained that it had suffered prejudice from the plaintiffs' conduct of the proceeding, including the significant delay in its commencement.[33] IBAC is a public authority with limited resources and the plaintiffs' failure to specify their case against it had caused it to incur unnecessary costs in pursuing them for further information, but to no avail. The plaintiffs failed to apply for directions for the conduct of the proceeding in accordance with the Rules and so IBAC had to do so.
98 While IBAC accepted that the limitation period in r 56.02 for judicial review applications did not apply to proceedings seeking purely declaratory relief, it submitted that a plaintiff may be deprived of declaratory orders if it has delayed in seeking them. Otherwise, plaintiffs could walk around the limitation period in r 56.02 by bringing proceedings seeking declarations.[34]
99 IBAC submitted that the plaintiffs' proposed ground that it had failed to comply with the requirements of s 38 of the Charter of Human Rights and Responsibilities Act 2006 ('Charter') really involved the contention that IBAC was required to consider the plaintiffs' human rights in determining whether the police engaged in corrupt conduct. That ground could not succeed because IBAC had to apply the existing definition of the term 'corrupt conduct' in s 4 of the IBAC Act, which contained no such requirement. IBAC argued that the plaintiffs' reliance on the Charter was an example of them adding issues in real time during the proceeding which had no real prospects of success.
100 IBAC submitted that, in any event, the plaintiffs had not shown that its decision not to investigate the complaint interfered with their human rights or that it caused them any ongoing detriment or repercussion. There was no proof that IBAC did not give consideration to the first plaintiff's human rights. Any breach of the Charter was not a jurisdictional error.
101 IBAC submitted that the facts of this case differed from those considered by the Court of Appeal in Bare v Independent Broad-based Anti-corruption Commission,[35] on which the plaintiffs relied. In that case, the plaintiffs presented evidence that they were suffering ongoing repercussions from the Director of Police Integrity's decision not to investigate their complaint.[36] The operation of the legislation in that case turned on whether an investigation was in the public interest, which was a less prescriptive requirement than that contained in the IBAC Act. In addition, in that case, the decision-maker gave reasons for his decision.
102 IBAC also submitted that it could not have made a different decision about Mr Kuksal's complaint, because of its mandatory obligation under s 58 to take one of the following steps: to dismiss the complaint or notification if there were grounds to do so, to investigate the complaint or notification, or to make a referral of the complaint or notification. In addition, IBAC had an absolute discretion to dismiss the complaint under s 67, even if it did suspect that police officers had engaged in corrupt conduct. Therefore, IBAC could not reasonably have acted differently in respect of the complaint and, therefore s 38(2) of the Charter applied to claims under the Charter, so that it was not required to give consideration to the plaintiffs' Charter rights in making its decision.
103 IBAC pointed out that the plaintiffs' claims relying on the Charter were made one year and four months after its decision was made and eight months after the originating motion was filed. The plaintiffs had not explained that delay. IBAC was prejudiced by such a late claim and contended that if the claim was not arguable, the Court should not order under s 64 of the Civil Procedure Act that it proceed to trial.
104 The plaintiffs did not have a right to any particular outcome of the first plaintiff's complaint. IBAC had provided him with the rights that he claimed under the IBAC Act, namely, to make a complaint and to receive its decision about it. The Model Litigant Obligations were not relevant to IBAC's summary judgment application because it was not relying on a technical argument, but contending that the plaintiffs had no arguable case against it.
105 IBAC also contended that Mr Kuksal's complaint was not a public interest disclosure or complaint under the PID Act. In any event, that issue had no bearing on whether IBAC's decision about whether to investigate a corrupt conduct complaint was valid. A protected disclosure complaint is a disclosure that IBAC has determined under s 26 of the PID Act to be a protected disclosure complaint_._ Section 7 (1)(a) of the IBAC Act has the effect that a protected disclosure complaint, ie a disclosure that IBAC has determined under s 26 of the PID Act to be a protected disclosure complaint, that would not otherwise constitute a complaint, is taken to be a complaint made to IBAC under s 51, which provides for complaints to IBAC about corrupt conduct. The result is that a public interest complaint under the PID Act is 'funnelled' into the corrupt conduct provisions of the IBAC Act and becomes subject to IBAC's powers under ss 58 and 67 to dismiss it.[37] The escalation of a complaint to public interest complaint status is therefore irrelevant to the application of the corrupt conduct provisions of the IBAC Act.
106 IBAC submitted, in the alternative, that the plaintiffs' claims should be summarily dismissed under r 23.01 as an abuse of process because they had failed to present any evidence to substantiate their claims against IBAC.
Mr Kuksal's submissions opposing IBAC's summons for summary judgment
108 Mr Kuksal also argued that this proceeding did have utility because, if he was successful, and the matter was remitted for reconsideration by IBAC, his complaint might be decided differently by different IBAC officers.
109 Mr Kuksal submitted that complaints to IBAC did not have to identify specific statutory provisions on which the complainant relied. The IBAC Act was intended to be used by people without sharp legal minds and it was up to IBAC to determine the appropriate statutory provision under which a complaint should be considered.
110 Mr Kuksal argued that IBAC did not consider the plaintiffs' Charter rights in determining whether the police officers engaged in corrupt conduct or improper conduct. The relevant Charter rights were the right to liberty, the right to be treated equally before the law, the right to dignity, the right to personal safety and the right to mobility. Mr Kuksal submitted that IBAC was on notice of the plaintiffs' reliance on the Charter as during the hearing he had made clear that he relied on Bare's Case.
111 Mr Kuksal contended that IBAC erred by failing to determine that his complaint or disclosure was a public interest complaint within s 26(3)(a)(i) of the PID Act and that, as a result, its decision was a nullity. IBAC's determination did not involve the exercise of a discretion. The audio recording of the events of 6 January 2022, and the other documents provided to IBAC, clearly showed police misconduct and that the police officers recorded in the video had breached provisions of the VP Act. In addition, they had disclosed material to the Channel Nine program 'A Current Affair'.
112 If IBAC had not erred by refusing to investigate Mr Kuksal's complaint, it might have been prioritised and considered by IBAC officers who might have taken the complaint seriously. Because that had not occurred, he had suffered 'detrimental action'.[40] If IBAC had found, as it should have, that his complaint was a public interest disclosure, that finding would have assisted the plaintiffs in taking their complaint about police conduct to the Chief Commissioner and others. Mr Kuksal also argued that IBAC had failed to give reasons for its decision that the disclosure was not a public interest complaint as it was required to do.[41]
113 Ms Xu argued that she did have standing to challenge IBAC's decision because, although she did not make a complaint to IBAC directly, Mr Kuksal's complaint made via IBAC's online complaint form encompassed her complaint as well as his. The online complaint form did not allow a second person to be added as a complainant. She also stated that it was her understanding that Mr Kuksal had 'informally' expressed to an employee of IBAC that the complaint was made on both of their behalves. In any event, if she had made a complaint it would have had the same outcome as Mr Kuksal's complaint.
114 Ms Xu submitted that there were many reasons for the plaintiffs' delay in bringing this case. Primarily, she relied on delays in the Magistrates' Court releasing documents subpoenaed by the plaintiffs in November 2022. She also contended that the plaintiffs have been attempting to work with the prosecution to resolve the criminal proceedings, but that those attempts 'didn't end well.'[42] Further delay occurred as a result of the police prosecutors referring the prosecution of Mr Kuksal's matters to the VGSO, a course which she described as most unusual.
115 Ms Xu contended that the delay was also due to the State, which has been maliciously prosecuting Mr Kuksal in other matters. Because the plaintiffs are self-represented litigants, they experience an added strain in producing documents.
116 Ms Xu argued that the plaintiffs did not have to seek an extension of time prior to commencing the proceeding, but could do so during, or at the end of, the substantive hearing.[43]
118 Section 1 of the IBAC Act states that its main purpose is to establish the Independent Broad-based Anti-corruption Commission. IBAC's functions are listed in s 15 as:
(1A) In performing its functions, the IBAC must prioritise its attention to the investigation and exposure of corrupt conduct which the IBAC considers may constitute serious corrupt conduct or systemic corrupt conduct.
(1B) Subsection (1A) does not restrict the IBAC's discretion to determine to investigate any matter that the IBAC considers may constitute corrupt conduct.
(2) Without limiting the generality of subsection (1), the IBAC has the following functions -
(a) to identify, expose and investigate corrupt conduct;
(b) to identify, expose and investigate police personnel misconduct;
(c) to assess police personnel conduct.
(3) Without limiting the generality of subsection (2), the IBAC has the following functions under subsection (2) -
(a) to receive complaints and notifications to the IBAC in relation to corrupt conduct;
(b) in relation to police personnel conduct -
(i) to receive police personnel conduct complaints and notifications to the IBAC;
(ii) to ensure that the highest ethical and professional standards are maintained by police officers and protective services officers;
(iii) to ensure that police officers and protective services officers have regard to the human rights set out in the Charter of Human Rights and Responsibilities Act 2006;
(ba) to conduct preliminary inquiries;
(c) to hold examinations;
(d) to make referrals to other persons or bodies.
(4) Without limiting subsections (2) and (3), the IBAC has the following functions in relation to public interest complaints -
(a) to investigate any of those complaints that it may investigate in accordance with -
(i) its corrupt conduct investigative functions; or
(ii) its police personnel conduct investigative functions;
(b) to refer the complaints to other persons or bodies to investigate;
(c) to dismiss the complaints
...
(7) For the purpose of achieving the objects of this Act, the IBAC has the following functions -
(a) to receive information, conduct research and collect intelligence, and to use that information, research and intelligence in support of investigations;
(b) to report on, and make recommendations as a result of, the performance of its duties and functions.
...
119 Section 5 of the IBAC Act defines the terms 'police personnel conduct', 'police personnel conduct complaint' and 'police personnel misconduct' as:
For the purposes of this Act -
police personnel conduct means -
(a) in relation to a public officer who is a police officer or protective services officer -
(i) an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a police officer or protective services officer; or
(ii) conduct which constitutes an offence punishable by imprisonment; or
(iii) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or
(iv) disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);
(b) in relation to a public officer who is a Victoria Police employee or police recruit -
(i) an act or decision or the failure or refusal by the public officer to act or make a decision in the exercise, performance or discharge, or purported exercise, performance or discharge, whether within or outside Victoria, of a power, function or duty which the public officer has as, or by virtue of being, a Victoria Police employee or police recruit; or
(ii) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it;
police personnel conduct complaint means -
(a) a complaint made to the IBAC under section 167 of the Victoria Police Act 2013; or
(b) a complaint made to the IBAC in relation to the police personnel conduct of a member of Victoria Police personnel other than a police officer or protective services officer
police personnel misconduct means -
(a) in relation to a public officer who is a police officer or protective services officer -
(i) conduct which constitutes an offence punishable by imprisonment; or
(ii) conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it; or
(iii) disgraceful or improper conduct (whether in the public officer's official capacity or otherwise);
(b) in relation to a public officer who is a Victoria Police employee or police recruit, conduct which is likely to bring Victoria Police into disrepute or diminish public confidence in it.
120 Section 7 refers to protected disclosure complaints and provides that, for the purposes of the Act, other than Divisions 1 and 2 of Part 3, a protected disclosure complaint that would not otherwise constitute a complaint, is taken to be a complaint made to IBAC under s 51, or if the disclosure relates to a member of Victoria Police personnel - a police personnel conduct complaint made to IBAC under s 52. As defined by s 3(1), the term 'protected disclosure complaint' means:
a disclosure that the IBAC has determined under section 26 of the Protected Disclosure Act 2012 to be a protected disclosure complaint.
121 Section 8 contains the objects of the IBAC Act which include to:
(a) provide for the identification, investigation and exposure of -
(i) corrupt conduct; and
(ii) police personnel misconduct;
(aa) provide for the IBAC to prioritise the investigation and exposure of serious corrupt conduct or systemic corrupt conduct;
(b) assist in the prevention of -
(i) corrupt conduct; and
(ii) police personnel misconduct.
122 Under s 51, a person may make a complaint to IBAC about conduct the person believes may be corrupt conduct. Section 4 defines 'corrupt conduct' as:
(1) For the purposes of this Act, corrupt conduct means conduct -
(a) of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body; or
(b) of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; or
(c) of a public officer or public body that constitutes or involves knowingly or recklessly breaching public trust; or
(d) of a public officer or a public body that involves the misuse of information or material acquired in the course of the performance of his or her or its functions as a public officer or public body, whether or not for the benefit of the public officer or public body or any other person.
(da) ...
(e) that could constitute a conspiracy or an attempt to engage in any conduct referred to in paragraph (a), (b), (c), (d) or (da) -
being conduct that would constitute a relevant offence.
(1A) For the purposes of this Act, in determining whether conduct would constitute a relevant offence, the IBAC may assume that the required state of mind to commit the relevant offence can be proven.
(2) ...
(2A) For the purposes of section 4(1)(da), the effective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body may be adversely affected notwithstanding that the public officer or public body does not engage in any corrupt conduct or other misconduct in performing or exercising those functions or powers.
...
123 When IBAC receives a complaint, s 58 requires it do one of three things:
(a) dismiss the complaint or notification if there are grounds to do so; or
(b) investigate the complaint or notification; or
(c) make a referral of the complaint or notification.
124 The IBAC Act does not expressly set out the grounds on which IBAC must dismiss a complaint pursuant to s 58(a). However, IBAC submitted that, reading the Act as a whole, it may do so on at least two grounds:
(a) First ground: Section 60(1) provides that IBAC may conduct an investigation in accordance with its corrupt conduct investigative functions of a complaint that has been made to it under s 51. However, s 60(2) states that IBAC 'must not conduct such an investigation unless the IBAC suspects on reasonable grounds that the conduct constitutes corrupt conduct'. Therefore, IBAC submitted that the first ground on which it must dismiss a complaint under s 58(a) is if it does not suspect on reasonable grounds that the conduct is corrupt conduct as that term is defined in s 4.
(b) Second ground: Section 67(1) states that, subject to s 60(2), IBAC 'in its absolute discretion', may determine that a complaint does not warrant investigation. IBAC submitted that s 67(2) sets out a non-exhaustive list of reasons why IBAC may determine that a complaint does not warrant investigation, including: if the subject matter of the complaint is trivial, or if the complaint is frivolous or vexatious. Section 68 confirms that a complaint to IBAC is dismissed if it determines under s 67(1) that the complaint does not warrant investigation. Therefore, IBAC submitted that the second ground on which it must dismiss a complaint under s 58(a) is that, even if it suspects on reasonable grounds that conduct may be corrupt conduct, it nonetheless may dismiss the complaint if, in its absolute discretion, it determines that the complaint does not warrant investigation.
(c) IBAC submitted that a subset of the second ground was that under s 67(2)(g), it may determine that a complaint does not warrant investigation if, in its opinion, 'in all of the circumstances, the conduct does not warrant investigation'. IBAC suggested that one such circumstance might be that the conduct does not constitute serious or systemic corrupt conduct which conduct IBAC must prioritise under s 15(1A).
125 If IBAC decides to investigate a complaint pursuant to s 58(b), it may under s 164:
(a) make a referral under Division 5 of Part 3;
(b) make a recommendation [to the relevant principal officer, the responsible Minister or the Premier] in accordance with section 159;
(c) transmit a special report under section 162;
(d) advise a complainant or other person in accordance with section 163;
(e) do any combination or all or none of the matters referred to in paragraphs (a) to (d);
(f) determine to make no finding or take no action following the investigation.
126 Section 59 deals with the notification of a complainant of the action referred to in s 58 which IBAC has taken. IBAC may also discontinue an investigation at any time.[46]
127 IBAC submitted that after a person makes a complaint to it, only two provisions of the IBAC Act affect the complainant. First, IBAC may, but is under no duty to, notify the complainant of its decision made under s 58.[47] Second, s 163 governs the advice that IBAC may give to a complainant and other persons and provides that:
(1) Subject to subsection (4), the IBAC may provide a complainant with information about the results of an investigation including -
(a) any action taken by the IBAC; and
(b) any recommendation by the IBAC that any action or further action be taken.
(2) Subject to subsection (4), the IBAC must provide a complainant with the information referred to in subsection (1) if the investigation relates to -
(a) a corrupt conduct complaint or police personnel conduct complaint in relation to a police officer or protective services officer; or
(b) a protected disclosure complaint.
...
(4) The IBAC must not provide any information under this section if the IBAC considers that the provision of the information would -
(a) not be in the public interest or in the interests of justice; or
(b) put a person's safety at risk;
(c) cause unreasonable damage to a person's reputation; or
(d) prejudice an investigation under this Act or an investigation by Victoria Police...
128 While not specifically relied upon by the plaintiffs, the IBAC Act provides that a person may make a 'police personnel conduct' complaint to IBAC pursuant to s 52. 'Police personnel conduct' is defined in s 5, in the wide terms that I have previously set out.
129 Section 1 sets out the purpose of the PID Act:
The purposes of this Act are -
(a) to encourage and facilitate disclosures of -
(i) improper conduct by public officers, public bodies and other persons; and
(ii) detrimental action taken in reprisal for a person making a disclosure under this Act; and
(b) to provide protection for -
(i) persons who make those disclosures; and
(ii) persons who may suffer detrimental action in reprisal for those disclosures; and
(ba) to ensure that those disclosures are properly assessed and, where necessary, investigated;
(c) to provide for the confidentiality of the content of those disclosures and the identity of persons who make those disclosures.
(1) For the purposes of this Act, improper conduct means -
(a) corrupt conduct; or
(b) conduct of a public officer or public body engaged in by the public officer or public body in their capacity as a public officer or a public body that constitutes -
(i) a criminal offence; or
(ii) serious professional misconduct; or
(iii) dishonest performance of public functions; or
(iv) an intentional or reckless breach of public trust; or
(v) an intentional or reckless misuse of information or material acquired in the course of the performance of the functions of the public officer or public body; or
(vi) a substantial mismanagement of public resources; or
(vii) a substantial risk to the health or safety of one or more persons; or
(viii) a substantial risk to the environment; or
(c) conduct of any person that -
(i) adversely affects the honest performance by a public officer or public body of their functions as a public officer or public body; or
(ii) is intended to adversely affect the effective performance or exercise by a public officer or public body of the functions or powers of the public officer or public body and results in the person, or an associate of the person, obtaining -
(A) a licence, permit, approval, authority or other entitlement under any Act or subordinate instrument; or
(B) an appointment to a statutory office or as a member of the board of any public body under any Act or subordinate instrument; or
(C) a financial benefit or real or personal property; or
(D) any other direct or indirect monetary or proprietary gain - that the person or associate would not have otherwise obtained; or
(d) conduct of any person that could constitute a conspiracy or attempt to engage in any of the conduct referred to in paragraph (a), (b) or (c).
(2) Despite subsection (1), conduct that is trivial does not constitute improper conduct for the purposes of this Act.
Functions and powers of the IBAC
(1) The main functions of the IBAC under this Act are -
(a) to receive, whether directly or by notification from other entities, assessable disclosures;[48] and
(b) to assess those disclosures; and
(c) to determine whether those disclosures are public interest complaints.
(2) In addition, the IBAC has the following functions relating to the public interest disclosure scheme established under this Act -
(a) to issue guidelines for procedures -
(i) to facilitate the making of disclosures in accordance with Part 2 (other than disclosures made to the Victorian Inspectorate);
(ii) for the handling of those disclosures and, where appropriate, their notification to the IBAC;
(iii) for the protection of persons from detrimental action in contravention of section 45;
(b) to issue guidelines for the management of the welfare of persons who make public interest disclosures or who are otherwise affected by public interest disclosures;
(c) to provide advice to the public sector on any matter included in the guidelines referred to in paragraphs (a) and (b);
(d) to review the procedures established by the public sector under Part 9, other than those established by the Victorian Inspectorate and the Ombudsman, and the implementation of those procedures;
(da) to promote the purposes of this Act;
(e) to provide information and education about the public interest disclosure scheme;
(f) to assist the public sector to increase its capacity to comply with the public interest disclosure scheme;
(g) to provide information to, consult with and make recommendations to the public sector on matters relevant to the operation of the public interest disclosure scheme;
(h) to undertake research and collect, analyse and report on data and statistics relating to the public interest disclosure scheme;
(i) to report to Parliament at any time on matters arising from the performance of any of its research and education functions;
(j) to perform any other function conferred on the IBAC by or under this Act.
(3) The IBAC has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions under this Act.
132 Section 9 of the PID Act defines 'public interest disclosure':
(1) Subject to subsection (3) and Division 3, a public interest disclosure is a disclosure by a natural person of -
(a) information that shows or tends to show -
(i) a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or
(ii) a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45; or
(b) information that the person reasonably believes shows or tends to show -
(i) a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or
(ii) a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45.
(2) A public interest disclosure may be about conduct that has occurred before the commencement of this section.
(3) A disclosure regarding the conduct of, or actions taken by, any of the following is not a public interest disclosure -
(a) the Office of the Special Investigations Monitor;
(b) the Special Investigations Monitor;
(c) a court;
(d) an investigating panel;
(e) a member of an investigating panel.
133 IBAC's functions under s 26 of the PID Act in respect of public interest disclosures are:
(1) If -
(a) a public interest disclosure is made to the IBAC in accordance with Division 2 of Part 2; or
(b) a public interest disclosure is notified to the IBAC under section 21; or
(c) a police complaint disclosure is notified to the IBAC under section 22; or
(d) a police complaint disclosure is made to the IBAC -
the IBAC must assess the disclosure to determine whether or not the disclosure is a public interest complaint.
(2) If a disclosure is made or notified to the IBAC in accordance with any other Act, the IBAC may assess the disclosure to determine whether or not the disclosure is a public interest complaint.
(3) Following an assessment under subsection (1) or (2), the IBAC must -
(a) determine that the disclosure is a public interest complaint if the IBAC considers that -
(i) the disclosure shows or tends to show -
(A) a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or
(B) a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45; or
(ii) the person who made the disclosure believes on reasonable grounds that the disclosure shows or tends to show -
(A) a person, public officer or public body has engaged, is engaging or proposes to engage in improper conduct; or
(B) a public officer or public body has taken, is taking or proposes to take detrimental action against a person in contravention of section 45; or
(b) determine that the disclosure is not a public interest complaint in any other case.
Note The protections under Part 6 apply to a public interest disclosure or a police complaint disclosure whether or not the IBAC has determined that the disclosure is a public interest complaint.
(4) A determination under subsection (3) must be made within a reasonable time after the disclosure is made, or notified, to the IBAC.
(5) Despite subsection (3)(a) and subject to subsection (6), the IBAC may determine that a disclosure which has been notified to the IBAC under section 21 or 22 is not a public interest complaint if the IBAC considers that -
(a) it would be more appropriate for the matter which is the subject of the disclosure to be dealt with by the notifying entity or another public body; or
(b) the matter which is the subject of the disclosure has been adequately dealt with -
(i) by the notifying entity or another public body as required by law or by another Act; or
(ii) as required under an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth.
(6) Before determining under subsection (5) that a notified disclosure is not a public interest complaint, the IBAC must -
(a) consult with the notifying entity; and
(b) unless the disclosure was made anonymously, obtain the consent of the person who made the disclosure for the disclosure to be dealt with other than as a public interest complaint.
(7) The IBAC must not exercise any of its powers of investigation under the Independent Broad-based Anti-corruption Commission Act 2011 when making an assessment under subsection (1) or (2).
If the IBAC has determined under section 26 that a disclosure is not a public interest complaint, the IBAC may -
(a) assess whether the disclosure is a complaint or notification under the Independent Broad-based Anti-corruption Commission Act 2011; and
(b) if so, deal with the disclosure as a complaint or notification under that Act.
135 If IBAC determines that the complaint is a public interest complaint, then s 28 requires that it advises the person in writing accordingly, including that the protections under Part 6 apply to the disclosure. Those protections include immunity from liability, protection from defamation actions, and protection from reprisals for a public interest disclosure.[49]
136 Section 29(1) states that if IBAC determines that a disclosure is not a public interest complaint, it must so advise the person who made the disclosure and of the consequences of that determination and that the protections under Part 6 apply to the disclosure. Section 29(2) and (3) state that:
(2) The advice must -
(a) be in writing; and
(b) state the reasons why the IBAC has determined that the disclosure is not a public interest complaint; and
(c) be given within a reasonable time after the determination is made.
(3) If the disclosure was made by a person to the IBAC, the IBAC is not required to advise the person under subsection (1) unless the person has indicated to the IBAC, or it otherwise appears to the IBAC, that the person wishes to receive the protections that apply to a public interest disclosure under this Act.
137 Section 45 provides that a person must not take detrimental action against another person in reprisal for a public interest disclosure. It is a criminal offence to do so.
138 The plaintiffs argued that relevant provisions of the VP Act demonstrated why the police conduct that they notified to IBAC was corrupt conduct. Section 125(1)(h),(j) and (2) of the VP Act state:
(1) A police officer or protective services officer commits a breach of discipline if he or she -
...
(h) engages in conduct that is likely to bring Victoria Police into disrepute or diminish public confidence in it; or
...
(j) is guilty of disgraceful or improper conduct (whether in his or her official capacity or otherwise); or
...
(2) A police officer or protective services officer who aids, abets, counsels or procures, or who, by any act or omission, is directly or indirectly knowingly concerned in or a party to the commission of a breach of discipline, also commits a breach of discipline.
139 Section 126 of the VP Act entitles the Chief Commissioner to investigate a breach of discipline and under s 127 to charge a person once the investigation concludes that there was a breach of discipline. Sections 227 and 228 regulate the unauthorised access to, use of, or disclosure of, police information by members or former members of Victoria Police personnel.
140 The first issue is the plaintiffs' standing. If no private right is interfered with, a plaintiff, in order to possess standing, must establish that they have a special interest in the subject matter of the action.[50] Mr Kuksal is challenging IBAC's decision about his complaint made under the IBAC Act. IBAC ultimately did not dispute that he possessed standing to make that challenge and I find that he does.
141 If the issue of Ms Xu standing is to be determined by whether she made a complaint to IBAC, then obviously she does not have standing. She made no complaint under the IBAC Act. IBAC's consideration of complaints only commences when a person makes a complaint under s 51 of the IBAC Act about conduct that the person believes may be corrupt conduct. The plaintiffs' claim against IBAC can only challenge its consideration of Mr Kuksal's complaint.
142 However, I consider that it is arguable that Ms Xu has a special interest in the proper determination of Mr Kuksal's complaint to IBAC. Mr Kuksal's challenge to IBAC's determination of his complaint may also may affect Ms Xu because it concerns the police conduct on 6 January 2022, which was directed at both her and Mr Kuksal. Police arrested her and Mr Kuksal, removed her from the property where she was apparently living and held her in custody until the following day. The parts of Mr Kuksal's complaint about police corruption that focus on police action on 6 January 2022 may also affect Ms Xu in a significant way. She may gain an 'advantage' if this Court decides that Mr Kuksal's complaint was not considered as required by the IBAC Act and orders that IBAC reconsider it. If IBAC thereafter decided to investigate Mr Kuksal's complaint, it is possible that it may take action that has the effect of redressing her grievances about the police action that she contends was directed at her as well as Mr Kuksal. IBAC's powers include making referrals under Part 5, Division 3 of the IBAC Act to the Chief Commissioner of Police and the Ombudsman.[51] It can also make recommendations to the relevant principal officer, the responsible Minister or the Premier,[52] and can transmit a special report to Parliament.[53] If Mr Kuksal succeeds in his claim against IBAC and this Court orders IBAC to reconsider his complaint, any exercise of these powers may advantage both Mr Kuksal and Ms Xu.[54]
143 Ms Xu's position bears some similarity in principle to that of the respondents in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Benefit Fund Pty Ltd,[55] who had an interest in the appellants' observance of the statutory limitations on their activities. The High Court described that interest as 'immediate, significant and peculiar' to them. [56] That description might arguably be applied to Ms Xu's interest in Mr Kuksal's claims against IBAC. In Maguire v Parks Victoria,[57] the Court of Appeal referred to authority about the flexible nature of the special interest test for standing stating:
In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), the High Court observed that the special interest test was flexible and that its content in a given case will be dictated by the nature and subject matter of the litigation. That observation was further explained by Gaudron, Gummow and Kirby JJ in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd who said:
This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject-matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law.
144 Ms Xu's arguable claim to standing to bring her claim against IBAC is not affected by the charges against her being withdrawn. This is because her claims are associated with Mr Kuksal's complaint about police conduct, including the obtaining and execution of the search warrant and the arrest of the plaintiffs, and not the fact that she was charged with criminal offences.
145 I therefore consider that IBAC has not established that Ms Xu has no real prospect of proving that she has standing to bring her claims against it, being the claims described in the plaintiffs' originating motion and their PAOM.
146 The next question is whether IBAC has established that the plaintiffs' case against it has no real prospects of success within s 63 of the Civil Procedure Act and that it is thereby entitled to summary judgment and the dismissal of the plaintiffs' claims against it. Alternatively, the question is whether IBAC has established that the plaintiffs' claims against it are an abuse of process.
147 The plaintiffs bear the onus of establishing that IBAC made a jurisdictional error or error of law on the face of the record in making its decision not to investigate Mr Kuksal's complaint.[58] In their originating motion, they contend that IBAC acted unreasonably in refusing to investigate his complaint. That is a difficult ground to establish, particularly when IBAC is entitled to prioritise cases of serious or systemic public sector corruption and police misconduct, as it mentioned in its letter to Mr Kuksal informing him that it was not investigating his complaint.[59] Also significant in determining whether the plaintiffs can establish that IBAC acted unreasonably is its absolute discretion conferred by s 67(1) of the IBAC Act to determine that a complaint does not warrant investigation.
148 I consider that I should take into account, at this juncture, the grounds of the plaintiffs' claims against IBAC contained in the PAOM, which include challenges to IBAC's dismissal of Mr Kuksal's complaint.
149 The plaintiffs in oral submissions argued that IBAC erred in deciding that Mr Kuksal's complaint was not a public interest complaint and misapplied the definition of that term. Therefore, the relevant persons at IBAC, who could have taken the complaint seriously, never had the opportunity to be advised of the seriousness or importance of his complaint. IBAC was obliged to give reasons why it decided not to investigate his complaint.[60] IBAC's decision referred to Mr Kuksal's audio files of the events of 6 January 2022, but stated 'specifically, the information doesn't show or tend to show the public officer engaged in improper conduct or detrimental action.' IBAC did not state which public officer it there referred to.
150 The plaintiffs cannot seek to have this Court review IBAC's decision on the merits. However, their grounds contained in the PAOM for challenging IBAC's decision, when considered with their oral submissions, contains two claims that have a real prospect of success within s 63 of the Civil Procedure Act. First, they claim that IBAC acted in a manner contrary to its obligations under ss 26 and 45 of the PID Act. As previously stated, s 26 requires IBAC to assess a disclosure to determine whether it is a public interest complaint. Section 45(1) provides that a person must not take detrimental action against another person in reprisal for a public interest disclosure. The plaintiffs' claims were based in part on the events of 6 January 2022, when they contend they were unlawfully arrested, their residence unlawfully searched and property converted. Mr Kuksal sent IBAC a transcript of the audio recording of some of those events recorded on their phone. Mr Kuksal said that it captured police officers using extremely foul language and joking about whether he could be killed and about whether Ms Xu could be beaten up while in custody.[61] He said that the audio indicated that Victoria Police were speaking with representatives of Channel 9 and advising them 'in real time' what they were doing.[62] IBAC's reasons for finding that the plaintiffs' complaint was not a public interest complaint arguably suggest that it did not take into account the detail, or as Mr Kuksal put it, the seriousness of his complaint including that it concerned the actions of a number of public officers or police officers. By s 29(2) of the PID Act, IBAC was required to give reasons why it determined that Mr Kuksal's disclosure was not a public interest complaint. In its reasons, it referred to a 'public officer', as distinct from the police officers or public officers about whose conduct Mr Kuksal appears to have complained. It did not refer to Mr Kuksal's allegations that a number of police officers, while executing the search warrant, used foul language and joked about the harm that the plaintiffs might suffer. It is arguable that his complaint was wider than IBAC understood, in that his email of 19 January 2022, which appears to have formed part of the complaint, stated:
The evidence demonstrates instances of serious professional misconduct and unlawful activities by members of Victoria Police[63] including...
151 Mr Kuksal's audio transcript has not been verified as an accurate record of statements made by the police on 6 January 2022, but it presents some evidence to support his case that a number of police officers were involved in the events of that day. If IBAC had accepted that Mr Kuksal's complaint or disclosure concerned the conduct of a number of police officers, allegedly using foul language and joking about the harm that the plaintiffs might suffer, it might have found that his complaint was a public interest complaint and investigated it as such to determine if police officers, being public officers, had engaged in improper conduct within the meaning of the PID Act. A failure to understand the nature and extent of the matter that a decision-maker is required to decide may be a jurisdictional error, because it may be a failure to consider a central issue.[64] In this instance, IBAC's task was to decide whether to investigate Mr Kuksal's complaint having first accurately identified what it entailed. I consider that there is a real prospect that the plaintiffs will be able to establish that IBAC did not do this. IBAC, of course, bears the onus of establishing that the plaintiffs have no real prospect of success in their claims against it.
152 While s 67(1) gives IBAC, in its absolute discretion, power to determine that a complaint does not warrant investigation, as IBAC accepted, that discretion has to be exercised bona fide, for the purposes of the IBAC Act and not in an arbitrary way.[65] The legislature is taken to intend that a discretionary power, conferred by statute, will be exercised reasonably.[66]
153 I do not accept that, in any event, Mr Kuksal's complaint would lack utility as IBAC contends because, if it found that his complaint was a public interest complaint, it would have been 'funnelled' into the corrupt conduct provisions of the IBAC Act and then been dismissed. While IBAC is entitled to prioritise investigations of systemic corrupt conduct, it must consider the nature and extent of complaints made to it in deciding whether they are public interest complaints. If this Court granted a declaration that IBAC has not properly considered whether Mr Kuksal's complaint was a public interest complaint and ordered IBAC to reconsider the complaint in its entirety, it cannot be assumed that IBAC would decide not to investigate it.
154 I also consider that the plaintiffs' PAOM of 3 August 2023 contains a second claim that has a real prospect of success within s 63 of the Civil Procedure Act that stands in the way of IBAC being granted summary judgment. That claim is that IBAC acted in a manner contrary to its obligations to consider the impact of its decisions on Mr Kuksal's human rights pursuant to s 38 of the Charter. IBAC's letter of 5 April 2022 makes no mention of Mr Kuksal's Charter rights. However, IBAC's functions include in s 15(3)(b)(iii):
to ensure that police officers and protective service officers have regard to the human rights set out in the Charter of Human Rights and Responsibilities Act 2006;
155 The plaintiffs' claims for declarations in their PAOM is accompanied by a statement of their reliance on rights contained in the Charter: ss 8 (recognition and equality before the law), 10 (protection from torture and cruel, inhuman or degrading treatment), 12 (freedom of movement), 13 (privacy and reputation), 16 (peaceful assembly and freedom of association), 20 (property rights), 21 (right to liberty and security of person), 24 (right to a fair hearing), 25 (rights in criminal proceedings), as well as on the provisions of ss 32, 33, 38 and 39 of the Charter. As I have previously mentioned, in his submissions Mr Kuksal relied particularly on the rights contained in ss 8,10,12 and 21.
156 The plaintiffs relied on the Court of Appeal judgment in Bare's Case,[67] which concerned an appellant, an immigrant from Ethiopia, who complained to the Director of Police Integrity that he had been seriously assaulted and racially vilified by police. He sought that the Director investigate his complaint pursuant to s 40(4)(b)(i) of the Police Integrity Act 2008 on the grounds that the police conduct was of such a nature that the Director would consider that an investigation was in the public interest. That request was refused invalidly. A delegate of the Director then reviewed the file and made a second decision, refusing to commence an investigation of the complaint and referring the matter to the Chief Commissioner of Police as warranting investigation. The appellant brought judicial review proceedings in this Court seeking to quash the second decision, seeking a declaration that the decision was contrary to s 38 of the Charter and a declaration as to the operation of s 10(b) of the Charter, which provides that a person must not be treated in a cruel, inhuman or degrading way. IBAC had taken over the jurisdiction of the Office of Police Integrity.
157 The Court of Appeal held that the decision-maker had failed to give proper consideration to the complainant's relevant human rights. Tate JA described the obligation imposed on the decision-maker by s 38(1) of the Charter in the following terms:[68]
In my view, the decision maker failed to give proper consideration to Bare's human rights the consequence of which is that the decision taken was unlawful. The 'proper' consideration to be given to human rights by those engaged in public administration demands a higher standard than that generally applicable at common law to the taking into account of relevant considerations. What is required is a weighing up, or balancing, of human rights against countervailing public and private interests. To treat the obligation to give proper consideration to human rights as an obligation of some stringency is consistent with the model of the Charter as intended to have a normative effect on the conduct of public authorities.
158 IBAC's decision on Mr Kuksal's complaint makes no reference to the Charter, his rights under it or IBAC's function under s 15(3)(b)(iii) of ensuring that police officers have regard to the human rights set out in the Charter. The plaintiffs bear the onus of establishing that IBAC did not have regard to Mr Kuksal's Charter rights. However, IBAC was required by s 29(2)(b) of the PID Act to give reasons for its decision or advice that Mr Kuksal's disclosure was not a public interest complaint. Its letter of 5 April 2022 does not refer to Mr Kuksal's Charter rights nor to its functions specified by s 15(3)(b)(iii) in respect of police officers.
159 Mr Kuksal's complaint raised allegations of police conduct that arguably required consideration of whether his Charter rights had been properly considered by the police. If Mr Kuksal establishes this second ground against IBAC, he has a real prospect within the meaning of s 63(1) of the Civil Procedure Act of obtaining declarations that IBAC's decision was unlawful or involved an error of law on the face of the record for failing to have regard to a relevant consideration and to obtain an order that IBAC reconsider its decision.[69]
160 Subject to the issue of the plaintiffs' delay, which I will deal with next, I consider that the plaintiffs should be given another opportunity to reformulate their claims to include in their originating motion their claim against IBAC contained in grounds B81.1 to 81.5 of their PAOM dated 3 August 2023. Those grounds are:
B.81.1 The objects of the IBAC Act, as set out in section 8 of that Act;
B.81.2. Its obligations pursuant to sections 15, 58 and 59 of the IBAC Act;
B.81.3. The purpose of the Public Interest Disclosure Act as specified in section 1 of that Act;
B.81.4. Its obligations pursuant to sections 26 and 45 of the Public Interest Disclosure Act; and
B.81.5. IBAC's obligations to consider the impact of its decisions on the Plaintiffs' human rights pursuant to section 38 of the Charter of Human Rights and Responsibilities 2006 (Vic).
161 I consider that these claims and grounds have a real prospect of success within s 63 of the Civil Procedure Act. I have decided to grant the plaintiffs leave to include them in a PAOM. Courts may allow amendments or further attempts to formulate claims when they consider that litigants, especially self-represented litigants, however experienced in litigation, have arguable claims that they have not yet appropriately specified.[7] This is such a case. By these statements I am not of course expressing any view on whether the claims will actually succeed.
162 I next consider the question of whether the plaintiffs' claims against IBAC should be dismissed because of their delay of about 5 months, from 5 June to 23 November 2022 in commencing the proceeding after the expiration of the 60-day period contained in r 56.02. Delay is also relevant if the plaintiffs' claims be considered as for the grant of declarations. I accept that delay can cause prejudice to IBAC by creating uncertainty in planning and timetabling its work and that of its staff. This prejudice may occur if a considerable time after IBAC has decided not to investigate a complaint, it is required to defend or reconsider that decision. IBAC may then be diverted from considering the complaints of other persons who are waiting for its decision. Even though I have accepted that the plaintiffs have identified two grounds that have real prospects of success for seeking judicial review of IBAC's decision or declarations in respect of it, the plaintiffs' delay in commencing this proceeding against IBAC must be taken into account in deciding whether IBAC should be granted summary judgment.
163 IBAC referred to authorities that suggest that a plaintiff who commences a proceeding that in essence seeks judicial review cannot avoid the effect of the judicial review time limits by seeking the grant of declarations.
164 An example of such a case is Hall & Hall v City of Burnside & Ors (No 4),[70] where the plaintiffs challenged the validity of a development approval issued by a municipal council. However, they failed to issue a summons for judicial review within the time period permitted. They had been denied an extension of time to commence proceedings for judicial review, and Bleby J had to decide whether the plaintiffs could pursue the same result by seeking the grant of declarations in the equitable jurisdiction of the Court. His Honour concluded that it would defeat the purpose of the time limits for seeking judicial review to permit them to be circumvented merely by the plaintiffs' choice of an alternative remedy.[71] His Honour stated:[72]
The practical effect of the alternative remedies of judicial review and declaration and injunction is, in this case, identical. They are truly alternative proceedings. Apart from the time limitation, there is no identifiable benefit of one procedure over the other. To allow the application to proceed by way of declaration and injunction would be to allow the plaintiffs to gain a procedural advantage merely because of their reliance on an alternative remedy.
...it would... be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities...
166 His Honour also referred to Lord Denning MR's statement in the Court of Appeal in the same case:[75]
Where a good and appropriate remedy is given by the procedure of the court - with safeguards against abuse - it is an abuse for a person to go by another procedure - so as to avoid the safeguards.
167 A second and recent case is Wyloo Metals Pty Ltd v Quarry Park Pty Ltd,[76] in which Tottle J considered an application for judicial review brought by way of an action for declaratory relief. The decision which the plaintiff sought to impugn was the grant of a mining lease along the Ashburton River in the Pilbara region of Western Australia. The application was brought nearly eight years after the decision was made.
168 His Honour noted that a plaintiff, who has otherwise satisfied the discretionary factors relevant to the exercise of the Court's power to grant a declaration, may be deprived of relief if there has been delay.[77] His Honour referred to Lord Diplock's general rule stated in O'Reilly and the South Australian Full Court decision in Hall v City of Burnside.[78] His Honour also referred to the decision in New South Wales Court of Appeal in Buttrose v Attorney-General (NSW).[79] In that case, Beazley P and Leeming JA considered that the three month limitation period that applied to claims for judicial review either applied directly to an application that sought a declaration or informed the court's discretion to grant declaratory relief:[80]
The substance of the rule is that challenges to the exercise of executive power should be brought reasonably promptly, or else be accompanied by an explanation as to why that did not occur.
...
... just because a plaintiff seeks purely declaratory relief, it does not follow that the ordinary principles relating to judicial review cease to apply.
169 Tottle J concluded that the elapse of time between the grant of the mining lease and the commencement of the action, during which it was open to any person interested to make inquiries about the validity of the mining lease, was a critical factor bearing on the exercise of the discretion to grant declaratory relief.[81] His Honour stated:[82]
In my opinion, it would be fundamentally inimical to the public interest in the sound administration of the Act to make a declaration that the mining lease is invalid, over eight years after its grant. Making a declaration of invalidity in those circumstances would have the potential to undermine the confidence of those involved in the resources industry in the security offered by title to mining tenements. Building on the observation made by Bleby J in Davies v Minister for Urban Development and Planning cited earlier, allowing administrative decisions to be challenged after a substantial elapse of time raises concerns that go beyond the private interests of the parties involved and has the potential adverse effect on the public interest which I have described.
170 I have considered whether these authorities are decisive in establishing that the plaintiffs' claims against IBAC should be summarily dismissed. However, I consider it is significant that IBAC issued a summons, and then an amended summons, seeking the dismissal of the plaintiffs' proceeding against it if they did not seek an extension of time under r 56.02. IBAC did not press that summons when the plaintiffs announced that they were no longer relying on O 56 to make a judicial review application, but were seeking declaratory relief. I ordered, without opposition from IBAC, that its summons be dismissed. In those circumstances, as IBAC did not press it summons, I do not consider that I should dismiss the plaintiffs' claims against IBAC because they were commenced beyond the 60-day time limit or because of delay generally.
171 To obtain summary judgment, IBAC bears the onus of establishing that the plaintiffs have no real prospect of success and I conclude that they have not done so.
172 Finally, I do not consider that IBAC has established that the plaintiffs' claims in the originating motion are an abuse of process. Rather, I consider that, once the plaintiffs' claims are considered as including the additional grounds contained in their PAOM to which I have referred, IBAC has not established that the plaintiffs' claims against it have no real prospect of success.
173 I therefore dismiss IBAC's summons of 14 July 2023.
174 It is important that I add that this part of my decision concerns IBAC's application for summary judgment or dismissal of the proceeding for abuse of process only. My judgment should not be read as containing any view on whether the plaintiffs will ultimately succeed in their claims against IBAC. That is quite a different question.
175 The State sought dismissal of the plaintiffs' proceeding because it was commenced beyond the 60-day time limit permitted for judicial review applications and any declaratory relief was limited by analogy.[83] The plaintiffs commenced their originating motion almost eight months out of time insofar as its claims against the State defendants were concerned. The proceeding concerned events in January 2022, yet it was commenced in November 2022.
176 The State submitted that the plaintiffs had provided no proper explanation for the delay. The Court gave the plaintiffs until 16 June 2023 to file an application for an extension of time but they did not do so. The State relied on the line of authority to which I have referred that the 60-day time period for judicial review applications cannot be overcome by commencing proceedings seeking declarations.[84]
177 The State also submitted that there would be no utility in granting the plaintiffs an extension of time. Their claims were a collateral attack upon decisions and rulings in pending criminal proceedings in the Magistrates' Court. Such claims would result in an unacceptable fragmentation of those proceedings. The plaintiffs also seek relief in relation to the decision to lay charges and to prosecute them, matters which have been accepted as outside the scope of judicial review.[85]
The plaintiffs' submissions regarding the State of Victoria's summons
178 Mr Kuksal stated that he was happy to make an application for an extension of time and thought that the plaintiffs had done so when they commenced their proceeding by originating motion.
179 Ms Xu stated that she did not need to ask for an extension of time. She considered that she was not required by the Court's order to do so as she understood that it only applied to claims against IBAC. She contended that it would be more appropriate that she seek an extension of time in the substantive proceeding, because by then many of the issues considered will explain why delay occurred.[86] It was in part caused by the defendants' delays in providing relevant documents, in particular the search warrant affidavit.
180 Mr Kuksal disputed that the application for a declaration was subject to the same time limits as applications for prerogative writs or judicial review. He argued that there were no time limits on collateral attacks on orders of inferior tribunals, including on the ground that the orders that were a nullity. He relied on the following statement of Warren CJ statement in Director of Public Prosecutions v Edwards,[87] which suggested that such collateral attacks were not subject to time limits:
It follows from these authorities that, at common law, an inferior court order made without jurisdiction is a nullity that lacks legal effectiveness for most, if not all, purposes. The principle applies to any kind of order, including sentencing orders.
From a practical and also a policy viewpoint the principle may be thought to be somewhat unsatisfactory. Its undesirable consequences are obvious. It potentially creates uncertainty for parties and other affected persons in the conduct of their affairs in reliance on an order. First, the principle means that an inferior court order is not only liable to be set aside on appeal or judicial review but that it may lack legal effectiveness ab initio. Thus, for example, in a particular instance a person to whom the order is directed may be able to disregard it with impunity. Secondly, the principle may open an inferior court order to collateral challenge outside of the time limits for judicial review.
181 The plaintiffs argued that the State's application was frivolous and destined to fail. It did not address the substance of Mr Kuksal's complaint about his treatment by Victoria Police and the alleged criminality of their actions. The argument that his application would fragment proceedings was misconceived as he was entitled to attack the search warrant.
182 Mr Kuksal argued that the State and the prosecutors had failed to comply with required criminal procedures, particularly for the disclosure of documents. He said that some relevant documents had only recently been discovered or disclosed. The State and the prosecutors had taken an adversarial position for the sake of doing so, and had thereby breached the Model Litigant Guidelines. They had also breached their overarching obligations under the Civil Procedure Act and had repeatedly made applications that did not address the real questions in dispute. That had led to the plaintiffs being 'consumed by matters of irrelevance'.[88]
183 Mr Kuksal explained that the plaintiffs' delay in commencing this proceeding also occurred because, although they considered commencing civil proceedings, they formed the view that the State would argue that they were attempting to evade the criminal process by doing so. In addition, they had not yet obtained the documents on which they now relied, for instance they did not obtain copies of the search warrant affidavit until 27 June and 13 July 2022 respectively. They then attended a case conference in the Magistrates' Court on 24 August 2022, but they alleged that the police prosecutor ignored what they said about the actions or conduct of the police. The Magistrates' Court set aside their subpoenas on 7 November 2022. In addition, the VLSB raided their offices and took documents, electronic devices and personal items and they became involved in other litigation with it. This combination of circumstances explained their delay. Mr Kuksal submitted that the Court should not limit its consideration of the plaintiffs' claims to the exact wording of the original pleadings where later evidence and submissions make it clear to the parties that the fundamental dispute or controversy was something different.[89]
184 In my opinion, the plaintiffs had the right to seek judicial review remedies or declarations about the invalidity of the Magistrates' Court orders under the rules of this Court whether or not those orders were a nullity. Because the plaintiffs could challenge the Magistrates' Court orders if they considered they were a nullity, any such claims were subject to the time limits for judicial review applications or to the effect of delay on the exercise of the discretion to grant declarations. In DPP v Edwards Weinberg JA and Williams AJA noted that intermediate appellate courts can hear appeals from 'null' convictions and that therefore sentences passed in excess of jurisdiction were not, for all purposes, to be regarded as being without legal effect.[90] Their Honours referred to authority that the use of labels such as 'nullity', or 'void', do not answer the true question as to the effects of a sentence imposed without power, which is to be answered by statutory construction.
185 The plaintiffs did not issue a summons seeking an extension of time. While they had their audio recording of the police actions on 6 January 2022 since that day, they did not obtain the search warrant affidavit until June and July 2023 respectively.
186 The State of Victoria's affidavit stated that the plaintiffs have not provided it with access to further material in support of their application, namely the exhibits to the affidavit of Ms Di Gregorio of 23 November 2022.[91] They did not file a summons for directions as required by the Rules and the State had to issue its own summons. The State now argues that the plaintiffs were out of time to seek relief and, to the extent that they rely on equitable remedies, they are limited by analogy.
187 The grant of an extension of time involves the exercise of a discretion. Considerations relevant to the exercise of that discretion include the applicant's explanation for the delay, whether there is a reason for extending time, including the strength of the applicant's case and whether the justice of the case requires the granting of an extension, taking into account the possible prejudice to other parties.[92]
188 Both plaintiffs assumed that they did not have to seek an extension of time. That provides some explanation for their delay and it may be why they disregarded the orders of 14 June 2023 providing for them to seek an extension of time against the State of Victoria. They were wrong in their assumption, as delay is relevant to the grant of a declaration, which is a discretionary remedy. The plaintiffs contend that the police failed to co-operate in providing documents to them.
189 The onus of justifying an extension lies on the party seeking it. This is an unusual case because neither plaintiff has sought an extension of time at this point and they claim that they can do so later in this proceeding. But that approach is due to the plaintiffs' incorrect understanding that a collateral attack on Magistrates' Court orders can be brought as of right at any time, without having to obtain an extension of time or, in the case of an application for the grant of declarations, without that delay being relevant as to whether declarations should be granted. I take into account that the plaintiffs are self-represented litigants.
190 The State seeks to have the plaintiffs' proceeding dismissed. I would not make that order merely because of the delay that has occurred because I consider that the plaintiffs have provided an explanation, although, a misguided explanation, for that delay. They thought that they could challenge an order on the ground that it was a nullity at any time. The State has not pointed to any critical prejudice caused by the delay. But, the State's case for the dismissal of this proceeding is stronger once the plaintiffs' delay is added to the fragmentation of the Magistrates' Court proceeding that would occur if this proceeding was allowed to proceed at this point.
191 In the judgment in Kuksal v Mioch,[93] also delivered this day, I have discussed why courts will not generally judicially review, or grant declaratory relief concerning, decisions or rulings in pending criminal proceedings, or while the proceedings are being heard, save in special or exceptional circumstances. That principle was explained in Chief Executive Officer of Customs v Jiang,[94] where O'Loughlin, North and Weinberg JJ, stated:[95]
In Seymour v Attorney-General (Cth) Jenkinson J, as a member of a Full Court, emphasised the strength of the public interest in the expeditious resolution of accusations of crime. His Honour commented:
The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious: the fading of witness's recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight ...
This passage has been cited with approval on many occasions, most recently by the Full Court in Flanagan v Commissioner of Australian Federal Police.
It is clear that civil courts appreciate that it is of vital importance that regulatory bodies and law enforcement agencies not be hindered unduly in their task of investigating fully allegations of criminality. The civil courts also appreciate the need to ensure that the work of the criminal courts is not frustrated by such applications, particularly those which are quite unmeritorious and designed to achieve little more than delay. Most complaints regarding decisions taken in the context of the criminal justice process can adequately be addressed by the criminal courts. Civil courts generally deny judicial review of such decisions on discretionary grounds.
192 Also relevant are the limitations on the grant of declarations which I have discussed above in considering the plaintiffs' PAOM. Courts are reluctant to by-pass procedural and evidentiary rules available to accused persons in the criminal justice system by granting declarations or orders that will affect criminal proceedings. Courts are also reluctant to grant declarations that are dependent on findings that individuals have or have not engaged in criminal conduct. Courts usually only make declarations on the basis of agreed or proved facts. Supreme Courts will not closely control the conduct of criminal proceedings in the Magistrates' Court
193 If this Court granted the declarations sought by the plaintiffs in the originating motion it would breach those principles. By way of example, the declarations that the plaintiffs seek include that the charges brought in the Magistrates' Court are an abuse of that Court's processes and that the search warrant of 6 January 2022 was invalid and obtained through fraud. As the High Court accepted in Ousley v Queen,[96] challenges to search warrants can occur in the trial court, in this case the Magistrates' Court.
194 The recent New South Wales Supreme Court decision of Gamage v Riashi[97] concerning a challenge to a search warrant is also relevant. In that case a summons was brought challenging the validity of a search warrant and seeking the production of the application for the warrant when criminal proceedings were before the Local Court. The charges arose from an investigation by the New South Wales Independent Commission Against Corruption. Chen J decided that the plaintiff's summons should be dismissed. He placed primary reliance on not fragmenting the criminal process and the fact that the plaintiff's challenge to the search warrant could be decided by the Local Court. That decision is an application of the principles to which I have referred.
195 The plaintiffs also seek declarations about the legality of the police search of their premises and about the alleged conversion of their property. Many of these matters may be the subject of evidence if the prosecutions proceed in the Magistrates' Court. Nor is the plaintiffs' challenge to the Magistrate's order on 7 November 2022 setting aside the first plaintiff's summonses a reason to allow this proceeding to continue while the Magistrates' Court proceedings are on foot. Many such interlocutory orders are made during the hearing of criminal prosecutions in the Magistrates' Court, but this Court rarely judicially reviews or makes declarations concerning such orders before the prosecutions have been decided.
196 The State did not initially explain why it seeks to have this proceeding dismissed rather than seeking that it be temporarily stayed as the State sought in the Mioch proceeding. I raised this question with the parties when hearing the plaintiffs application to reopen the proceeding. The State accepted that the granting of a temporary stay was open to the Court if it was otherwise satisfied that the State had established its application. As I have stated, I conclude that the plaintiffs' delay alone would be insufficient to justify dismissing this proceeding. However, to that delay must be added the risk of the fragmentation of the Magistrates' Court criminal prosecutions. When that is done, I consider that, with one exception, a temporary stay of this proceeding should be granted until the determination of the prosecutions in the Magistrates' Court and any appeal therefrom or judicial review application, including applications for declaratory orders in respect thereof. That is the order that I have made in the Mioch proceeding and I consider that it is the appropriate order in this proceeding, rather than ordering its dismissal.
197 The one exception concerns the plaintiffs' claims against IBAC challenging Mr Kuksal's decision not to investigate his complaint. That claim appears to stand apart from the remaining claims and be capable of proceeding without risk of fragmentation of the Magistrates' Court proceeding. I did not understand IBAC to make an alternative submission that, if I was not persuaded to grant it summary judgment, I should grant a temporary stay of the plaintiffs' claims against it until the determination of the Magistrates' Court prosecutions or any appeal against, or challenge to, that determination.
198 In my opinion, it is in the interests of justice that the hearing of the Magistrates' Court prosecution against Mr Kuksal should proceed and that, with the exception of the plaintiffs' claims against IBAC, this proceeding should be temporarily stayed until the determination of the charges and any appeal or judicial review application therefrom. I accept that Ms Xu will be affected by the temporary stay as she will be prevented from pursuing her claims for the time being. She is no longer involved in the Magistrates' Court criminal proceedings as the charges against her have been struck out. But her claims are the same, or substantially the same, as Mr Kuksal's. Allowing her claims in this proceeding to continue is likely to cut across the Magistrates' Court's determination, in the pending proceeding against Mr Kuksal, of many of the same issues that she raises. These includes questions about the issue and execution of the search warrant, the arrest of the plaintiffs and the conduct of the prosecutions. It is this Court's duty, as the superior Court of this State, not to interfere in, or fragment, criminal proceedings in other courts save in special or exceptional circumstances. In my opinion, the State has established that no such special or exceptional circumstances exist in this case.
199 I do not accept the plaintiffs' submission that the claim against the VLSB and persons associated with it should not be subject to the temporary stay because the VLSB is not a party to the criminal prosecution in the Magistrates' Court. The plaintiffs' claims against the VLSB in this proceeding raise issues of fact that may be raised in the Magistrates' Court proceeding, not least the existence of any relevant contact or communication between Victoria Police and the VLSB and the extent to which such contact led to the prosecution of the plaintiffs, as well as issues about the conduct of the prosecutions.
200 On 27 September 2023, Ms Xu contacted my chambers via email, attaching a document titled 'LX to Ginnane J - Letter Seeking Leave to Rely on Correspondence'. The email stated that since the hearing to which this judgment relates, further developments had occurred in the Magistrates' Court proceedings, including admissions by the prosecution about the plaintiffs' arrest and about the prosecution's conduct during the hearings. On 28 September, I ordered that any submissions for an application to reopen the case should be filed and served by 5:00pm on 2 October 2023.
201 On 2 October 2023, Ms Xu sent to the Court a number of documents and submissions including an email chain with the LSBC (being the VLSB and the Commissioner), an application seeking leave to reopen the case, a letter seeking leave to rely on evidence and without prejudice correspondence between Mr Kuksal and the LSBC.
202 The application to reopen made allegations about issues before the Magistrates' Court, including police misconduct, discovery and the harm caused to the plaintiffs by the alleged failure of the Chief Commissioner, IBAC, VGSO and the Director of Public Prosecutions (DPP') to perform their statutory duties and about the VLSB's actions. The plaintiffs expressed the view that 'given the radical nature of the discovery, [their] claims against the Defendants will now need to be revisited in respect of all the Ginnane SK [Shivesh Kuksal] Proceedings.'
203 On 30 October 2023, the plaintiffs sent a reopening application to my chambers, in which they sought the following orders:
1. The Court reopen the case heard in which it has reserved judgment and give appropriate directions in relation to the amendment to the Plaintiffs' Originating Motion and the hearing of the Plaintiffs':
1.1 Subpoena applications;
1.2 Application that the Court find the relevant Defendants in contempt of court;
1.3 Application for compensation in relation to the conversion of their goods by the State that were unlawfully seized from them (on 6 January 2022) under the guise of evidence in relation to the Olney Proceedings.
3.1 The proceeding is a criminal matter governed by the Criminal Procedure Act 2009 (Vic) and the Supreme Court (Criminal Procedure) Rules 2017 (Vic); and
3.2 Section 49 of the Civil Procedure Act 2010 (Vic) does not abrogate the operation of Chapter 3 of the Evidence Act 2008 (Vic) in relation to the admissibility of evidence.
205 I heard the reopening application for two days on 9 and 10 November 2023.
206 Mr Kuksal sought orders, if a reopening order was granted, to allow the proposed amended originating motion to be filed, to be able to issue subpoenas to make up for the lack of discovery, and the scheduling of an urgent hearing for the determination of the search warrant's validity and whether a stay of the Magistrates' Court prosecution should be ordered because it was fundamentally affected by the unlawful conduct of the executive.[98]
207 The principles governing the reopening of a case were described by Kenny J in Inspector General in Bankruptcy v Bradshaw,[99] where her Honour referred to four classes of cases in which a Court may grant leave to reopen taking into account the interests of justice:
(a) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;
(b) where there has been inadvertent error;
(c) where there has been a mistaken apprehension of the facts; and
(d) where there has been a mistaken apprehension of the law.
208 In Spotlight Pty Ltd v NCON Australia Ltd[100] the Court of Appeal observed:
There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The need for finality in litigation is one. It is no answer at this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline. The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the reopened issues would be hard to define and is difficult to protect. The reopened hearing would be bedevilled by arguments about whether one party or the other was seeking to take advantage of the reopening to polish parts of its case which were more or less within the scope of the reopened proceeding but not clearly on one side or other of the prescribed limits.[101]
209 Mr Kuksal argued that this case should be reopened because the earlier hearings had proceeded on the misapprehension of law that this was a civil proceeding, whereas in fact it was a criminal proceeding. Mr Kuksal referred to decisions which suggest that in determining whether a judicial review or similar proceeding should be appropriately characterised as a criminal proceeding, reference must be made to the underlying proceeding. The cases included Director of Public Prosecutions v Filonis (No 2),[102] Perkins v County Court of Victoria,[103] Clarkson v Director of Public Prosecutions,[104] the England and Wales Court of Appeal decision in R (McAtee) v The Secretary of State for Justice[105] and the decision of the United Kingdom Supreme Court in R(Belhaj) v Director of Public Prosecutions.[106] Cussen J in R v Watt; Ex parte Slade[107] had reached a similar conclusion.
210 Mr Kuksal argued that the underlying subject matter of this proceeding was the criminal charges pending in the Magistrates' Court. Therefore, this proceeding should be regarded as a criminal proceeding. That consideration made the grant of the reopening more necessary and the Court could not exercise its discretion to refuse his application. Mr Kuksal submitted that, if this case had been treated as a criminal proceeding during its hearing, he would have had greater rights to disclosure of documents or discovery and to issue subpoenas and the Court would have had to ensure that he was provided with legal representation.
211 I do not accept that this proceeding should be treated as if it is subject to the rules governing criminal proceedings. I accept that a proceeding in this Court seeking declaratory or judicial review remedies in respect of criminal proceedings in a trial court may, for many purposes, including statutory provisions which apply to 'criminal proceedings', be characterised as a criminal proceeding. Proceedings seeking declarations or judicial review remedies are often commenced in respect of criminal proceedings. However, they are commenced under the Court's civil rules and are heard by the Court exercising its civil jurisdiction. That is why the Full Federal Court in Chief Executive Officer of Customs v Jiang[108] referred to 'civil courts' not hindering or frustrating the work of the 'criminal courts' by exercising judicial review powers. That was the approach of the Court of Appeal of England and Wales in Ewing v Director of Public Prosecutions.[109] In addition, in my opinion, proceedings seeking declarations or judicial review remedies are subject to the provisions of the Civil Procedure Act 2010.[110]
212 In any event, a determination that this proceeding is a criminal proceeding would have made no difference to the orders that I would have made, or the procedures that have been adopted for its conduct. The Criminal Procedure Act 2009 and the Supreme Court (Criminal Procedure) Rules 2017 do not apply to this proceeding as they apply only to criminal proceedings commenced under that Act. But, even if I had concluded that the Criminal Procedure Rules applied to this proceeding, I would still have decided that it was appropriate to order that it be temporarily stayed to stop the fragmentation of the criminal prosecution in the Magistrates' Court.
213 I also do not accept the plaintiffs' submission that the Court conducted the proceeding under a misapprehension of law as to whether s 49 of the Civil Procedure Act 2010 abrogates the operation of Chapter 3 of the Evidence Act 2008 in relation to the admissibility of evidence. Mr Kuksal has advanced this submission in various forms during the hearing. But, it misses the role of the overarching purpose of the Civil Procedure Act which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. The powers in s 49, that I have exercised, are intended to assist the Court and the parties to achieve that purpose. Those powers include giving any direction or making any order a court considers appropriate with respect to limiting: the time to be taken by a trial, including the time a party may take to present their case; the time to be taken in examining, cross-examining or re-examining witnesses; the length or duration of written and oral submissions and the number of documents to be prepared or that a party may tender in evidence.[111] The Court can also give any directions or make orders it considers appropriate with respect to evidence, including, but not limited to, whether evidence in chief should be given orally, by affidavit or by witness statement.[112] The exercise of those powers does not regulate the admissibility of evidence, but rather the amount of evidence and submissions that proper case management should allow in order to achieve the overarching purpose of the Civil Procedure Act. The Court can give directions based on the powers that I have mentioned whether or not they are sought by the parties.
Ms Xu's affidavit in support of the reopening application
214 Ms Xu joined in the reopening application and made a supporting affidavit, which she said that she was authorised to make on Mr Kuksal's behalf. She advanced the following reasons to support the reopening application. First, the prosecution's disclosure or discovery, predominantly on 15 September and 27 October 2023, of critical fresh evidence in the Magistrates' Court prosecution. Secondly, the fundamental misapprehension of law that the Court had been under during the hearings that concluded on 10 August 2023, especially that this was a civil proceeding, whereas it was a criminal proceeding. I have dealt with that submission previously.
215 Ms Xu also referred to new evidence that the plaintiffs have obtained by prosecution disclosures which showed the contact between Victoria Police and the VLSB. Those contacts confirmed that the 'Anna' referred to in an email to Senior Constable Olney on 1 December 2022 was Ms Anna Alevizopoulos of the VLSB. The email stated 'If you haven't emailed Anna already my new police statement, please send it.' This was said to contradict the statement of VLSB's counsel on 7 November 2022 which suggested that no such contact had occurred. The Court should consider that new evidence in deciding whether to permit the two VLSB persons to be joined as defendants.
216 Ms Xu also submitted that the Magistrates' Court proceeding was oppressive because it arose from consumer matters and not criminal conduct. The Police knew that they did not have jurisdiction to commence the proceeding. Ms Xu referred to a letter from Victoria Police to Consumer Affairs dated 27 July 2021 which stated in part:
I am writing this email to let you know that we have discussed this case with our Criminal Investigation Unit and as there is a clause in the terms and conditions whereby it states that they can hold items and request further payment, I have been asked to direct this to you for further investigation.
It definitely seems that the company is up to no good however we have been able to determine the criminality of it at this stage.
217 Ms Xu contended that this correspondence proved that for almost two years, various police officers had sworn false witness statements and given fraudulent evidence in court to pursue the false conviction of her and Mr Kuksal. The Queensland Police knew that the agreements to transport goods interstate were not made with Mr Kuksal and Ms Xu, but with a company and that some of the goods had been delivered.
218 Ms Xu's affidavit described the committal mention hearings in the Magistrates' Court between August and November 2023, the prosecution's disclosure of documents and the questions about the subpoenas that the plaintiffs might issue. Ms Xu stated that the latest disclosures by the prosecution contained multiple documents that served as incriminating evidence concerning various police officers and the prosecution's persistent efforts to abuse the Court's processes in commencing and maintaining the prosecutions, which were in fact nullities at law.
219 Ms Xu's affidavit suggested that the prosecution continued to refuse to disclose three categories of documents, being 'VGSO correspondence', 'OPP correspondence' and 'correspondence with the Victoria Police Legal Services Department' because they claim legal professional privilege. The VGSO has refused to disclose a 16-page document containing correspondence between Victoria Police and the VLSB.
220 The plaintiffs described their approach as being to enforce the prosecution's disclosure obligations before they issue subpoenas to the VLSB and the Commissioner. The Magistrate, having considered the 16 page document containing correspondence between Victoria Police and the VLSB, stated that he would allow the accused to inspect it subject to any claims made by the VLSB. The VLSB objected to that course relying on an affidavit of Mr J Mazaris, a Senior Legal and Governance Officer employed by the Commissioner. That affidavit indicated that correspondence between the VLSB and Victoria Police existed because it stated that the VLSB's documents:
comprise communications between the Board, Commissioner and Victoria Police regarding the Board's investigations of the defendants and persons associated with them.
221 However, on 26 October 2023, the plaintiffs filed witness summonses to Senior Constable Olney, the Chief Commissioner of Police and to Sergeant Bourke, who is alleged to have supervised the execution of the warrant on 6 January 2022. Victoria Police opposed the disclosure of documents on the basis of relevance.
Mr Kuksal's and Ms Xu's other grounds for reopening the proceeding
222 The plaintiffs contended that in view of the withdrawal of the charges against Ms Xu, the similar charges brought against Mr Kuksal had no reasonable prospect of success.
223 Mr Kuksal contended that the additional evidence disclosed, which included hundreds of pages of documents, established a 'wide-ranging concerted effort at Victoria Police to institute and maintain proceedings oppressively against' him 'both to debilitate [his] functioning in commerce and in relation to his litigation against the State and to contain his resources and also to vilify [him] publicly'.[113] He referred particularly to an affidavit of a former partner and former director of the Law Firm her statement of 30 November 2022, which contained allegations against him and her involvement with Victoria Police. The plaintiffs contended that the police had recruited her.[114]
224 The plaintiffs alleged that the new evidence included evidence of prosecutor misconduct. For instance, on 2 November 2023 the prosecutor incorrectly claimed that the prosecution only had to disclose evidence on which it relied, thereby revealing that the prosecution had suppressed evidence. In addition, Victoria Police had influenced the prosecutors appearing in the proceeding to breach their disclosure obligations. The prosecution wanted to continue the case in the Magistrates' Court because that Court could not hold lawyers to account. The plaintiffs also referred to the fact that counsel for the informant, the Chief Commissioner of Police, and the OPP refused to disclose their names, although the Magistrates' Court later ordered them to do so.
225 The plaintiffs also referred to evidence that the 'A Current Affair' program reporter was present at the hearing on 7 January 2023 because the prosecution or police would have informed him of it. The police had filmed the video on the program and that conduct was a contempt of court.
226 A number of other grounds, which the plaintiffs claimed were established by the new evidence, involved repetition of submissions made at the earlier hearing. For example the plaintiffs' contention that that there were no valid charges because they were a nullity. Mr Kuksal also repeated his submission that the plaintiffs had been denied procedural fairness because they were not allowed to file some of the evidence on which they relied.
227 Mr Kuksal submitted that the police officer supervising the investigation into the plaintiffs had used the IBAC decision of 5 April 2022 not to investigate his complaint in order to influence other police officers to engage in conduct that was not consistent with the performance of their duties. The police officer had thereby taken detrimental action against the plaintiffs contrary to s 45 of the PID Act.
228 Mr Kuksal stated that he has made a fresh complaint to IBAC on 4 August 2023, although it contained no new evidence or information. He made it to see how IBAC would respond. IBAC has yet to decide it and Mr Kuksal claimed a legitimate expectation that it would have done so within the 45-day time limit stated on its website.
229 Mr Kuksal relied on s 85 of the Constitution Act 1975 and argued that the Supreme Court was responsible for ensuring that the rule of law was maintained. Section 85 provides that:
(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.
...
230 Mr Kuksal argued that the Court could not allow the administration of justice to be brought into disrepute. That would occur from members of Victoria Police committing fraud or perjury in connection with the prosecutions. He also contended that Victoria Police knew that Victorian courts did not have jurisdiction over the charges against him.
231 The plaintiffs also contended that Sgt Fairgrieve's affidavit relied on to obtain the search warrant showed that she gave no independent consideration to whether it was required. Documents recently disclosed by the prosecution showed that the affidavit incorrectly stated when Sgt Fairgrieve's involvement in the matter concluded.
232 The State of Victoria opposed the plaintiffs' reopening application arguing that none of the material on which they relied established that the overall justice of the case justified a reopening of the hearing. Many of the points the plaintiffs raised concerning the conduct of the police could be raised in cross-examination or submission in the underlying criminal proceedings or in submissions made in Mr Kuksal's defence to the charges.
233 The State submitted that it is an improper use of the Court's powers for a plaintiff to seek to use its supervisory jurisdiction to pre-emptively determine the merits of their defence. The Magistrates' Court has power to control proceedings, whether they are criminal or civil.
234 The VLSB also opposed the plaintiffs' reopening application. It submitted that Mr Mazaris' affidavit did not require the reopening of the proceeding in the interests of justice. The claim of public interest immunity described in it had not yet been determined by the Magistrates' Court.
235 The VLSB also relied on countervailing interests that it submitted made a reopening of the hearing inappropriate. It stressed the importance of finality and that a judicial review proceeding was not an opportunity for the Court to conduct a full trial and make findings of fact about many issues. Nor was it an opportunity to interrogate every decision made in the running of the Magistrates' Court proceeding. The VLSB argued that the continuation of these proceedings was becoming oppressive given their lack of forensic purpose. The reopening of this interlocutory hearing would lead to an unjustified use of court time.
236 IBAC submitted that the newly disclosed documents on which the plaintiffs relied were not relevant to their claims against it. Mr Kuksal did not have those documents in January 2022 when he made his complaint to IBAC and therefore IBAC could not have considered them. Nor could IBAC be held responsible for Victoria Police's use of its decision not to investigate Mr Kuksal's complaint. This proceeding against it remains a judicial review proceeding invoking the Court's supervisory jurisdiction to review a decision. However, the claim against IBAC differs from the claims against the other parties because IBAC's decision is a stand-alone decision not to investigate Mr Kuksal's complaint.
237 IBAC has not denied Mr Kuksal procedural fairness because it did not decide his second complaint within 45 days and, in any event, that is not fresh evidence in the existing proceeding. IBAC is not bound by any time limit by which to consider or decide a complaint. Although IBAC's website contains a statement that it will deal with most standard complaints within 45 days, it also states that with more complex complaints the period is within 90 days. The most recent statistics shows that IBAC has only assessed complaints within 45 days for 58% of complaints.[115] In any event, the doctrines of legitimate expectations[116] or estoppel in administrative law are not part of Australian law.
238 IBAC submitted that the plaintiffs are conducting this proceeding as if they were permitted to conduct a 'rolling judicial review'. They are not entitled to treat this proceeding as an omnibus proceeding in which they can keep adding claims and evidence as issues arise in the Magistrates' Court proceeding. That would be an abuse of process. IBAC is a small agency with limited resources and is using its own solicitors. Any challenge to the manner in which IBAC has handled Mr Kuksal's new complaint, requires a new proceeding.
Decision on the plaintiffs' reopening application
239 I conducted the reopening hearing application on the basis that the plaintiffs would provide a summary of the evidence on which they would rely if a reopening was ordered.
240 I do not accept Mr Kuksal's repeated submission that he has not had a reasonable opportunity to present his case because of limitations the Court imposed on the length of affidavits and submissions that the plaintiffs could file. Those limitations applied to all parties in the proceeding. The combined hearing time of the two proceedings in which I have delivered judgments today has occupied 13 days, including three substantial directions days. My estimate of the time taken by the parties is that the plaintiffs, and mainly Mr Kuksal, have taken a significant majority of the Court time.
241 I consider that the Court should admit the new evidence that the charges against Ms Xu have been withdrawn and struck out. I also consider that the Court should admit as evidence the prosecution note that further charges may be laid against Mr Kuksal. I admit that new evidence because it updates important details of the prosecutions in the Magistrates' Court. I otherwise refuse the plaintiffs' application to reopen the proceeding and the hearing that was completed on 10 August 2023.
242 I have reached that conclusion on the basis of the overarching consideration of the interests of justice and, in particular, in accordance with the principle against the fragmentation of criminal proceedings. I In any event, I consider that it is not in the interests of justice to allow applications to reopen separate proceedings, such as these, because further documents have been disclosed to parties in an ongoing criminal prosecution, particularly documents which have not yet been the subject of evidence and submissions. To allow that to occur would turn this proceeding into a rolling review of the Magistrates' Court proceedings and fragment them. The grant of the reopening application would have this Court intervene in the Magistrates' Court proceedings and thereby fragment them. Save in special or exceptional cases, a person aggrieved by a Magistrates' Court order can only appeal, or in some cases seek judicial review, after the prosecutions have been determined. None of the new or fresh evidence on which the plaintiffs rely reveals that the Court operated under any misunderstanding of fact in this proceeding. I also take into account the limits on the grant of declaratory orders which I have previously stated.
243 Mr Kuksal can seek to rely on relevant new evidence in the Magistrates' Court proceeding and seek to advance submissions about its significance. Mr Kuksal's argument that the charges are a nullity can be determined by the Magistrate as can any challenge to the search warrant. So can his allegations of a conspiracy between Victoria Police and the VLSB, so far as those allegations are relevant to the charges. The Magistrates' Court can rule on whether evidence has been improperly or illegally obtained and should be excluded.[117] Mr Kuksal can pursue any application for the issue of subpoenas in the Magistrates' Court.
244 The fact that the charges against Ms Xu have been withdrawn, or that Mr Kuksal may face new charges, does not mean that this Court can decide that the existing charges against him have no real prospect of being proved. That is a matter for the Magistrates' Court to decide.
245 I do not find any basis for determining 'the relevant Defendants in contempt of court' as the plaintiffs sought in their reopening application. No significant evidence was provided that might suggest that such a contempt has occurred. I also consider that any claims by the plaintiffs for compensation for the conversion of goods can be pursued after the completion of the Magistrates' Court proceeding.
246 Before the Court could consider making the declarations that the plaintiffs seek, evidence about many issues of fact would be required and the persons likely to be affected by those declarations given the opportunity to participate in the hearing. That process would require many hearing days and a judgment, all the while leaving the prosecutions to be heard and determined if the plaintiffs' proceeding in this Court was dismissed. This Court would be asked to make findings about the plaintiffs' allegations of criminal conduct by persons without those persons receiving the rights and protections afforded by a criminal trial.
247 The plaintiffs have not established a basis for the Court to order a reopening of this proceeding. Their application is dismissed.
Plaintiff's application to provide further evidence
248 By email to my Chambers on 11 December 2023, the plaintiffs sought leave to file more evidence in the proceeding. The plaintiffs stated that they had received some 'highly consequential documents' that assisted their claims in this proceedings. I allowed the plaintiffs until 13 December 2023 to send an email containing a succinct summary of what evidence the documents would provide and how they would be relevant.
249 On 14 December 2023, having received no email from the plaintiffs, I notified the parties that I would hand down judgment on the following day. Later that day the plaintiffs emailed my Chambers giving an explanation for their delay and attaching a four page document which was titled 'Summary of Recently Discovered Evidence'. The plaintiffs stated:
We still hope that the Court can consider the new evidence summary that is now attached.
250 I vacated the listing of the proceeding for judgment and have considered the Summary Document and the evidence that it describes. The plaintiffs stated that they received the evidence at various dates between 27 November and 8 December 2023. The source of the documents was mostly Senior Constable Olney who had provided documents pursuant to disclosure obligations or Victoria Police pursuant to subpoenas. In addition, documents were said to have been provided by a person in a different proceeding and provided 'during the hearing in the Olney proceeding involving Mr Kuksal' and by an admission in Court by the Crown Prosecutor 'that he did not have faith in the prosecution's case against Mr Kuksal'.
251 It is sufficient for present purposes to describe the alleged effect of the 'newly discovered evidence' in general terms. I add that I make no findings about the allegations that the plaintiffs make in respect of that evidence, assuming it exists. I next set out a description of some of the newly discovered evidence that the plaintiffs contend exists. There is evidence that VLSB staff offered to provide Victoria Police with information and documents about the plaintiffs and another person, and that VLSB collected information about the plaintiffs from Victoria Police and requested police officers to make statements against Mr Kuksal and his legal representatives. There is evidence that Victoria Police had regularly complained to the VLSB regarding Mr Ansell and other lawyers making complaints against the Police and sending communications to the Magistrates' Court alleging that their actions had been unlawful. There is evidence police evidence corroborated Mr Kuksal's account of certain matters, including what he overheard the police employee prosecutor discuss with the informant and complainant in a related proceeding. There is evidence that various police officers and others had committed perjury. For example, the meta-data associated with the photographs taken by Victoria Police of the items seized from the plaintiffs' residence on 6 January 2022 revealed that at least three officers had 'deliberately perjured themselves' in claiming that photos had been taken that day when they had been taken at a later date. There is evidence that extensive coordination occurred between Channel Nine, specific investigators at the VLSB, Victoria Police and people who had a conflict with Mr Kuksal. The coordination between Channel Nine and Victoria Police concerned, or included, the drafting of the broadcast script, the date of the broadcast and related matters, to 'maximise the impact of the broadcast for both parties to raise their profile.' There is evidence that the prosecution made admissions before a Magistrate about the inaccuracy of matters in a search warrant affidavit regarding Mr Kuksal's criminal record and directorship of AGLS, which a Magistrate found was 'extraordinary'. There is evidence that a Crown Prosecutor made admissions in open court before a hearing, without realising Ms Xu's online presence, 'that he did not have faith in the prosecution's case against Mr Kuksal'. There is evidence of communications between various people within Victoria Police, including the disclosure team, which reveals a concerted effort to dishonestly avoid disclosure of exculpatory evidence to Mr Kuksal, as well as evidence of police wrongdoing. There is evidence about the Chief Commissioner's concerns regarding Mr Kuksal's complaints and that he was misled about the situation.
252 I have considered the plaintiffs' Summary of Recently Discovered Evidence on which they wish to rely. I accept that it is put on the basis that the plaintiffs consider these documents to be new or fresh evidence. However, in order for them to apply to rely on these documents, the plaintiffs would have to apply to reopen the hearing in which I reserved judgment on 10 August 2023 with a further hearing scheduled to enable the other parties to be heard on whether I should reopen the hearing.
253 I do not consider that the interests of justice require the Court to commence the process I have described. My reasons are the same as I have given above for refusing the reopening application of 30 October 2023. In particular the reopening application, if successful, would fragment the criminal proceedings in the Magistrates Court. The previous reopening application led to a further two day hearing with the Court again having to reserve judgment to reprepare its judgment, further delaying the delivery of judgment to all the parties. Repeated applications to reopen the hearing after judgment has been reserved because of the disclosure of documents only emphasises that the plaintiffs are conducting this proceeding as if it was a rolling review proceeding, or ongoing inquiry, with the issues being frequently added to, by pieces of evidence coming into the possession of parties. As I have explained above, the courts will not permit such a process to occur. It is contrary to the principle of finality of litigation and means that the Court and the other parties can never know when the proceeding will end. Repeated applications to reopen proceedings and receive further evidence would be possible, all the time delaying the delivery of judgment, while increasing the costs of parties. That is not a proper way for litigation to be conducted.
254 Much of the recently discovered evidence, particularly that evidence concerned with communications between Victoria Police and the VLSB and between Victoria Police and the 'A Current Affair' program, appears to fall into categories that I considered when deciding the 30 October reopening application. Similarly with the allegations that persons have committed perjury. They are not appropriate claims to determine in this proceeding. In addition, challenges to the adequacy of the prosecution's disclosure are to be made to the Magistrate.
255 I repeat the fundamental principles on which I have based this judgment. This Court should not fragment or manage the Magistrates' Court criminal proceedings, save in special or exceptional circumstances. This Court should not make findings in this proceeding about the plaintiffs' allegations of criminal conduct without the persons against whom the allegations are made receiving the rights and protection afforded by a criminal trial. The Court cannot make declarations unless they are based on facts admitted or proved. The plaintiffs can seek to rely on any relevant new evidence in the Magistrates' Court.
256 For those reasons, even if I had allowed the plaintiffs to reopen their case and tender the recently discovered evidence, I would still have made the order for a temporary stay of proceeding. I have seen no reason to call on the defendants to respond to the plaintiffs' application to rely on further evidence as I have concluded that it has no arguable or proper basis.
257 I refuse the plaintiffs' application to rely on the further evidence summarised in their document titled 'Summary of Recently Discovered Evidence' sent to Chambers on 14 December 2023.
The plaintiff's third application to rely on further evidence after judgment was reserved
258 By emails from Mr Kuksal to my Chambers at 9:36pm on Friday 15 December 2023 and at 4:32pm on Saturday 16 December 2023, the plaintiffs again sought leave to rely on additional documents. This was the third such application when the application of 30 October 2023 to reopen the proceeding is taken into account. The plaintiffs sought leave to send me a copy of an email that he sent to the Magistrates' Court on 22 November 2023 'on account of which' he was charged with 'contempt in the face of the court on 11 December 2023'. On 12 December 2023, the charges were dropped. The plaintiffs also sought leave to provide me with three charge sheets relating to the contempt of court charges. Mr Kuksal stated in his email that:
The documents are relevant in relation to the unfairness and oppression that I have thus far experienced in my dealings with the Magistrates' Court and to contextualise the necessity of why the Supreme Court ought to deal with the matters before it.
259 Mr Kuksal's email of 15 December 2023 also stated:
Furthermore, today, I have received a further batch of emails from Mr Olney. The emails are significant in their corroboration of some important allegations that the Plaintiffs had made in relation to the malice motivating the prosecution's disruptive and oppressive tactics in the Magistrates' and Supreme Court proceeding.[118]
260 I gave leave for the email of 22 November 2023 and the three charge sheets and a 2 page summary of the emails to be provided to my Chambers by 9:00am on Tuesday 19 December 2023. In fact, Mr Kuksal sent a 13-page document after 9:00am and then an amended version of that document, also of 13 pages, later in the morning. No leave had been given for documents of that length to be sent to the Chambers or to be sent at any time after 9:00am on 19 December 2023. A further version of the document with an amendment underlying parts of a paragraph was as sent to Chambers at 4:21pm. By that time, the parties had been notified that I would be delivering judgment at 2:30pm on 20 December 2023.
261 The 13-page document, which is also titled 'Summary of Recently Discovered Evidence' repeats, but adds to, the documents described in the same titled document dated 14 December 2023 which I have described above. I should state that my description of the summary document, which follows, is not in any way a finding of the accuracy of the allegations contained in that document against any person. Some of the additional documents are said to have been disclosed to Mr Kuksal by Senior Constable Olney on 15 December 2023 pursuant to disclosure obligations. Others are said to have been obtained pursuant to a subpoena to the Chief Commissioner and in an affidavit filed in another proceeding. There is said to be a YouTube play list featuring the audio recording clips of Victoria Police officers' exchanges at Mr Kuksal's residence on 6 January 2022, which was sent to 'the two most heavily featured persons in those recordings'. The summary document also refers to a transcript of a Magistrates' Court hearing in which it is said the prosecution made admissions about inaccuracies in a search warrant affidavit and which are said to contradict statements made in Court by the lawyer for the police parties on 10 August 2023.
262 The plaintiffs contend that there is evidence of other communication showing extensive corroboration between officials at the VLSB and persons Mr Kuksal was engaged in litigation against. Mr Kuksal alleges that the VLSB was 'engaging in an abuse of authority to pervert the course of justice in soliciting information against [him] that it could use to prejudice his interests or disrupt the execution of the claims that he had foreshadowed against them'. The plaintiffs allege that communications show that the VLSB 'was inciting Victoria Police to make complaints against Mr Kuksal's lawyers in relation to their advocacy of Mr Kuksal's case'. An affidavit by a former solicitor employed by the Firm, is said to state that the VLSB 'had essentially defrauded her' into making a prejudicial sworn witness statement against Mr Ansell in his VCAT proceeding against the VLSB.
263 Internal Victoria Police correspondence is alleged to reveal that Senior Constable Olney was making fraudulent allegations about Mr Kuksal. The same police officer's affidavit about an 'AGLS truck' seized from Mr Kuksal's residence on 6 January 2022 is referred to and comments made by the plaintiffs about the condition of the truck and police knowledge about the ownership of the goods in it and their attempts to return the truck to Mr Kuksal. The plaintiffs point to statements in the affidavit that the truck was seized pursuant to the search warrant issued under s 465 of the Crimes Act 1958, whereas Victoria Police's position has been that 'the truck was seized under common law following the discovery of stolen goods inside it'.
264 The plaintiffs allege that the correspondence shows that the VGSO made an 'intense and concerted effort... to suppress exculpatory evidence, improperly ward off subpoenas and incite dishonest sworn accusations against him from his former legal staff in Mr Kuksal's criminal proceedings'. Other documents are said to contain police correspondence by Senior Constable Olney to the Police Media Team to advertise goods as requiring identification of owners that he is alleged to have known were owned by Mr Kuksal.
265 Then there is said to be an affidavit made by Sgt Fairgrieve in response to an order of Magistrate Robertson that she provide an affidavit in response to Mr Kuksal's allegations that her affidavit in support of the search warrant had made fraudulent misrepresentations against him. The plaintiffs state that the affidavit was not provided to Mr Kuksal or the Magistrates' Court, but the VGSO provided written submissions on behalf of the Commissioner to the Magistrates' Court.
Decision on plaintiffs' further evidence application
266 In my opinion, the documents that deal with Mr Kuksal being charged with contempt of court have no bearing on this proceeding, but concern particular events in the Magistrates' Court. I refuse leave to the plaintiffs to rely on them or to apply to reopen this proceeding to then apply to rely on them.
267 I also refuse leave for the plaintiffs to seek to rely on the documents summarised in the 'Summary of Recently Discovered Evidence' document of 19 December 2023 for the same reasons that I gave in refusing them leave to rely on the similar document of 14 December 2023. Mr Kuksal can seek to rely on the documents in the Magistrates' Court. They do not provide evidence of any special or exceptional circumstances justifying this Court interfering in the Magistrates' Court's hearing of the prosecutions and thereby fragmenting those proceedings. The attempt to have this Court take these documents into account is another attempt to undertake a rolling review. This Court does not assume the hearing of charges brought in the Magistrates' Court.
268 I saw no reason to call on the defendants to respond to the plaintiffs' application to rely on the further evidence, as I concluded that it had no arguable or proper basis.
Costs of IBAC's summonses dated 1 June 2023 and 29 June 2023
269 I next consider the costs of IBAC's summonses dated 1 June and 29 June 2023. IBAC's summons dated 1 June 2023 sought orders that any application by the plaintiffs for an extension of time to seek relief against it under r 56.02 be made by summons supported by affidavit to be filed by 16 June 2023. If such an application was not made, IBAC sought orders that paragraphs 5 and 6 of part I(A)(I) of the plaintiffs' originating motion, which sought determinations and declarations against it, be struck out and that it be removed as a party to the proceeding. On 2 June, I made orders requiring the plaintiffs to make any application for an extension of time by 16 June 2023 and ordered that if no such application was made, I would hear IBAC's summons on 23 June 2023. The plaintiffs made no such application. IBAC, with leave of the Court, filed an amended summons dated 29 June 2023 which sought orders that the proceeding against it be dismissed in the event the plaintiffs failed to apply for an extension of time and sought costs in respect of the amended summons and the proceeding. Thereafter, that summons as amended was still referred to as the '1 June summons' and I have so described it.
270 At the hearing on 23 June, the parties disagreed as to whether the plaintiffs had made a judicial review application under O 56 and, therefore, whether the plaintiffs required an extension of time to commence the proceeding. The first plaintiff made it clear on that day that he was not seeking relief under O 56, but by way of declaratory relief. Thereafter, IBAC did not press its summons seeking its removal as a party to the proceeding. Accordingly, I ordered that the summons be dismissed and that I would hear the question of costs of the summons on 28 July 2023. On that day, the plaintiffs and IBAC made submissions about costs, which I next summarise.
271 Mr Kuksal sought costs of the summons against IBAC on an indemnity basis. He argued that IBAC had failed to act as a Model Litigant and relied on three grounds for contending that its conduct was unreasonable: First, that the plaintiffs gave IBAC the option to abandon their summons. Second, that the plaintiffs made clear to IBAC that its application would not succeed. Third, IBAC remained undeterred, and continued to press its summons.
272 Mr Kuksal accepted that a party acting in their own case cannot be awarded legal costs because costs are awarded to indemnify parties for legal costs that they incur. [119] However, he submitted that a self-represented litigant could receive costs when they engage a firm to assist them in the preparation of documents without representing them in the proceeding. Mr Kuksal submitted that the Court should first rule on which party would receive costs or disbursements and determine the amount of any such costs or disbursements at a later date.
273 Mr Kuksal relied on the plaintiffs' offer of 19 June 2023 made to IBAC to agree to allow its removal as a party to the proceeding on conditions. One condition was that the plaintiffs would not be required to pay costs. IBAC's affidavit stated that it had expected to further incur an additional $7,400.00 in costs.[120] Mr Kuksal argued that those costs would have been avoided had IBAC accepted the plaintiffs' offer.
274 Mr Kuksal argued that IBAC's summons was brought unreasonably and was in breach of its overarching obligations under the Civil Procedure Act. Even if the plaintiffs were actually seeking judicial review, ultimately, their application was about the merits of the substantive issues in dispute. The real question before the Court was whether or not IBAC had complied with its obligations under the IBAC Act.
275 The expiration of the 60 day time limit contained in r 56.02 did not provide IBAC with immunity from review of its decision, nor should the failure of the plaintiffs to commence a proceeding during that period be taken as a waiver of their right to have IBAC's decision judicially reviewed.
276 The plaintiffs had made it clear on 2 June that IBAC's summons would not assist it be removed as party as the plaintiffs application for declaratory relief would keep IBAC in the proceeding as a party. It was therefore unreasonable for IBAC to continue with its application. Moreover, Mr Kuksal stated on 2 June 2023 that:[121]
MR KUKSAL: ... in relation to the question about extension for the orders that are sought, it's my position that given that we're seeking declaratory relief in ... addition to a judicial review order, effectively in the form of certiorari under [order]56, that no time limit applies. This is set out very clearly in DDP v Edwards where there was a discussion of the principle of nullity. And it was discussed that one of the consequences of accepting the concept of nullity is that there is effectively no time limit in relation to seeking orders for judicial review.
277 Mr Kuksal relied on Warren CJ's judgment in Director of Public Prosecutions v Edwards[122] for the proposition that there are no time limits on applications for the grant of declarations. I have set out the relevant passage from Warren CJ's judgment earlier in this judgment.
MR KUKSAL: ... Your Honour had pointed out that there was a part of the originating motion that had referred to Wednesbury unreasonableness. That part was not related to IBAC. I checked when I went back. And in any event the order that was being sought was a declaration that the conduct was commensurate with what the Wednesbury standard of unreasonableness would be. So in any event it was declaratory relief.
The reason why, Your Honour, the extension for time application was put there, is because the registry gets confused sometimes, when they see the - the order being sought is out of - it's almost a procedural thing that would require you to put that in there before the document is approved. In any way. In any manner, we'd say it's superfluous, the fact that we've sought leave, because we're not actually - as it was pointed out - we're not seeking mandamus prohibition or certiorari. We're simply seeking a declaration.
MR KUKSAL: ...I had already clarified on the last occasion that we were simply seeking declaratory relief against IBAC.[125]
280 At the hearing on 23 June, Mr Kuksal stated, that he knew that, in relation to some matters, the plaintiffs may have relied on O 56. His explanation for this was that because, he did not have the originating motion in front of him, he had conceded that the plaintiffs may have relied on O 56 in respect of some claims.
281 Mr Kuksal relied on the fact that IBAC had issued its summons on the assumption that the plaintiffs were making a judicial review application under O 56 and that when he pointed out that the originating motion was actually based on declaratory relief, IBAC withdrew its application.
Ms Xu's submissions on costs of the IBAC summonses
282 Ms Xu confirmed that she did not seek costs of the IBAC summons dated 1 June 2023.
283 Ms Xu relied on the letter of offer that she and Mr Kuksal sent to IBAC's offices on Monday 19 June 2023. IBAC did not respond to the letter until the following Thursday. IBAC's rejection of the plaintiffs' offer was unreasonable because it had offered IBAC the ultimate resolution of the case. As a result of refusing the offer, IBAC incurred more costs.
284 Ms Xu also submitted that the Model Litigant Guidelines required IBAC to keep costs to a minimum and to take reasonable steps to resolve matters by agreement and to clarify and narrow the issues in dispute, but it had no done so.
There is no absolute rule with respect to the exercise of power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the cost of the unsuccessful party.
286 Ms Xu argued that it was unreasonable for IBAC to decline to discuss the resolution of the proceeding with the plaintiffs. From the outset, the plaintiffs made IBAC aware of their reliance on Bare's Case,[128] a decision which explained why IBAC was a necessary party to the proceeding. Ms Xu said that her lack of resources meant that she relied on IBAC's assistance in investigating and possibly prosecuting the allegedly corrupt Victoria Police conduct.
287 IBAC claimed disbursements incurred of $7,295 for counsel's fees if it succeeded only in its claim for its costs of the plaintiffs' abandoned claim for relief under O 56.[129] However, if it succeeded in its claim for summary dismissal of the plaintiffs' claims, it sought its costs of the proceeding in the amount of $14,695.[130]
288 IBAC argued that the plaintiffs' letter of 19 June 2023, was not a Calderbank offer and provided no basis for an award of indemnity costs to the plaintiffs. In addition, the plaintiffs had provided no evidence of the costs and disbursements that they had incurred and should not be given another opportunity to do so.
289 IBAC's reliance on the time limit under r 56.02 was not a technicality or a sharp point. The plaintiffs had brought two claims against IBAC, one under O 56 and the other seeking declaratory relief. IBAC's summons was filed in respect of the O 56 claim. The plaintiffs' abandonment of that claim resulted in IBAC's summons being dismissed. IBAC claimed its costs thrown away by the plaintiffs' abandonment of the O 56 claim.
290 Mr Kuksal did not make it clear at the hearing on 23 June that IBAC's summons would not assist its removal as a party because the plaintiffs were still seeking declaratory relief. At the hearing on 23 June, IBAC conceded that no application for an extension of time was needed for an application for declaratory relief as the following passages of transcript record:[131]
HIS HONOUR: ... if I thought that the order 56 application was out of time - no extension had been granted... what happens to the proceeding? Do I dismiss part of it, the order 56 part and not the declaratory relief part, or what?
...
MS BRENKER: ... the plaintiff would be unable to bring an order 56 action and therefore that part of the proceeding would be dismissed.
HIS HONOUR: Well, does the whole proceeding go? Does that infect the whole proceeding, or only part of it? Can I have partial dismissal of a proceeding? I don't know.
MS BRENKER: Yes, you can, Your Honour. For example, we have sought dismissal of the proceeding against the fourth defendant only.
HIS HONOUR: Yes.
MS BRENKER: But I accept that, if the claim is for declaratory relief not under order 56, then no application for an extension of time is necessary and therefore it would be upon my client to make an application for summary dismissal.
291 The plaintiffs' originating motion, as filed, contained an application for judicial review of IBAC's decision. At the hearing on 2 June Mr Kuksal stated:[132]
First of all Your Honour, in relation to the question about extension for the order that are sought. It is my position that given we're seeking declaratory relief in addition to a judicial review order effectively in the form of certiorari under 56, that no time limit applies.
292 IBAC also referred to the following exchanges on 2 June between Mr Kuksal and the Bench:[133]
HIS HONOUR: In your claim against IBAC it's a judicial review ground, it's Wednesbury unreasonable[ness] that's judicial review that fits into order 56
MR KUKSAL: We're seeking judicial review on two grounds in the originating motion
...
MR KUKSAL: To clarify what our position is in respect of the orders, there are some judicial review specific orders like for Wednesbury unreasonableness that we rely on order 56 for. But it's our position that some of the orders can also be independently pursued through the medium of declaratory relief. So to the extent that we are also relying on order 56, we accept that we should get the court's leave and we're happy to come to an agreement in relation to a timeframe
...
HIS HONOUR: That may be, but to the extent that you're seeking order 56, IBAC says, 'Well please seek an extension of time'
MR KUKSAL: We accept that
...
HIS HONOUR: I've said two or three times now, why can't IBAC say, 'In your originating motion, you seek to rely on order 56'.[134]
MR KUKSAL: I'm saying they can say that...
HIS HONOUR: They are, and they want you to make the application if you're going to make it.
MR KUKSAL: And we're...
HIS HONOUR: Otherwise, they want...
MR KUKSAL: No, we're...we're happy to...
HIS HONOUR: ...the order 56 claim against them to be dismissed.
MR KUKSAL: We're happy to, - we thought that we had made the application when we launched the originating motion. We accept that they require further particularisation, but they have conceded that they understand which decision we're speaking about.
...
HIS HONOUR: Well, I'm taking from my discussion with you I won't say accept, but understand that if you're going to rely on order 56, you have to apply for an extension of time in which to do so. [135]
MR KUKSAL: Yep.
293 IBAC accepted that although claims brought under both O 56 and for the grant of declaratory relief would entail similar evidence, the submissions made in relation to each would differ, as the grant of declaratory relief is subject to a more confined discretion. It reiterated that if the plaintiffs had stated on 2 June that they were not relying on O 56, as they eventually stated on 23 June, it would have withdrawn its summons then. Counsel for IBAC stated:[136]
MS BRENKER: ... the costs that were incurred in preparing the amended summons which regularise the position at law and counsel's appearance on 23 June where the abandonment of the order 56 claim only occurred after I had made my submissions, were all costs that were thrown away.
294 IBAC issued its summons on 1 June 2023. The following day, at the hearing on 2 June, the plaintiffs maintained that they still relied upon O 56, at least in respect of some claims. The Court accordingly made orders giving the plaintiffs leave to make an application for an extension of time to commence its proceeding against IBAC. If the plaintiffs had dropped their O 56 claim, IBAC would not have pursued its summons.
295 Even though I ordered IBAC's summons of 1 June 2023 to be dismissed, I consider that it is entitled to an order that the plaintiffs pay its costs thrown away of and incidental to that summons. I fix those in the sum of $7,295.00 for disbursements as IBAC sought and which I consider to be a reasonable amount.
296 IBAC acted reasonably in issuing the summons and the plaintiffs only withdrew the O 56 claim at the hearing on 23 June. The originating motion sought orders under O 56 and declarations, but the O 56 claim was well out of time. The originating motion sought an extension of time pursuant to r 56.02 to apply for judicial review in relation to the order to issuing the search warrant, the charges brought against the plaintiffs and the proceedings on 6 and 7 January 2022 , the bail order of 7 January 2022 and IBAC's decision conveyed to the plaintiffs on 8 April 2022. The plaintiffs were given an opportunity to seek an extension of time, but not did so. They did not make it clear that they were no longer making a judicial review application under O 56 until 23 June 2023.[137] The transcript references on which IBAC relied, and to which I have referred, establish that to be the case.
297 I do not accept that IBAC acted unreasonably in failing to accept the plaintiffs' offer of 19 June 2023. That offer stated that 'owing to the discovery of a considerable volume of new evidence in relation to the Olney proceedings', they intended to lodge a fresh complaint to IBAC. It stated that the plaintiffs were willing to consider consenting to IBAC's removal from the proceeding on conditions. Those conditions contained detailed requirements that IBAC nominate a case worker with whom Mr Kuksal and Ms Xu might confer to share evidence of serious professional misconduct. The case worker was then required to provide them with a comprehensive report regarding IBAC's evaluation of the evidence and its decision on whether it intended to act on the fresh complaint. If IBAC decided not to pursue the fresh complaint, the case worker was to provide Mr Kuksal and Ms Xu with satisfactory reasons for that decision and 'address their queries regarding its considerations during the conference through which they convey IBAC's decision.' These conditions required IBAC to do more than it would have been required to do if the plaintiffs had been successful in this proceeding. IBAC did not accept the offer.
298 IBAC did not breach the Model Litigant Guidelines. It gave the plaintiffs the opportunity to seek an extension of time. When the plaintiffs did not do so, IBAC issued its summons, which was only abandoned on 23 June 2023 after it had clarified, as it was entitled to, that the plaintiffs were not pursuing the O 56 application.
299 I do not consider that the plaintiffs are entitled to any costs associated with IBAC's summons of 1 June 2023. In my opinion, the conditions attached to the plaintiffs' offer required IBAC to disregard its decision not to investigate the plaintiffs' complaint and required more than the plaintiffs might have obtained if they were successful in this proceeding. The offer was not made as an offer of compromise under the Rules and gave IBAC little more than a day to consider and accept it.
300 I next consider the costs of the VLSB's summons of 1 June 2023. On 23 June 2023, the Court heard submissions about the VLSB's summons of 1 June 2023 which sought its removal as a party to the proceeding. I dismissed this summons for reasons that I gave on 28 July 2023.[138] I found that the VLSB remained a proper and necessary party for the purposes of r 9.06 and I did not consider its removal to be appropriate. I took into account that it is common in judicial review proceedings for a plaintiff to join as defendant not only the decision-maker who made the challenged decision or order, but also the party who sought the decision or order at first instance. That is because that party has an interest in maintaining the order that is challenged.
301 On 28 July, I directed the parties to address the issue of costs of the VLSB's summons in written submissions. I will now summarise those submissions.
302 The plaintiffs made four points about the costs of the summons. The first, that the Court has a duty to give effect to the overarching purpose and obligations of the Civil Procedure Act. The second, that the VLSB had breached the Model Litigant Obligations. The third was why the plaintiffs were entitled to costs. The fourth was its application under ss 29 and 30 of the Civil Procedure Act. I will summarise the plaintiffs' submissions about those points in turn.
303 The plaintiffs submitted that the VLSB had not complied with the overarching obligations in the Civil Procedure Act. At the same time, the plaintiffs submitted that the Court should not insist on timely compliance with procedural requirements if doing so could compromise the achievement of the overriding purpose of that Act. The plaintiffs argued that a pedantic insistence on technical conformity with the pleadings' rules would deprive pleadings of their role in providing procedural fairness. As long as the pleadings define the issues in controversy, disclose the cause of action or the defence, and notify the parties of the nature of the case they have to meet at trial, that is sufficient. They relied on the High Court decision in Banque Commerciale SA (in liq) v Akhil Holdings Ltd,[139] for its description of the importance and flexibility of pleadings in cases containing allegations of fraud.
304 The plaintiffs submitted that the VLSB had adopted an unreasonable approach in responding to their originating motion. They claimed they had a right to rely on their undisputed evidence to establish the VLSB's equitable fraud. The plaintiffs argued that the obligations imposed on the VLSB under the Model Litigant Guidelines are greater than those imposed on private litigants.
305 The plaintiffs submitted that the Court has a discretion in the award of costs, with the guiding principle being that costs follow the event. Costs orders are made to indemnify a party for the legal expenses they incur. A successful litigant, who is not represented by a lawyer, is only eligible to receive out-of-pocket expenses. If the litigant can demonstrate that they have engaged persons on a commercial or quasi-commercial basis to provide services in connection with the litigation, they may be compensated for those costs or disbursements.
306 The plaintiffs relied on the Court's power to award costs against a legal practitioner who has contravened an overarching obligation in the Civil Procedure Act, among which is the obligation to use 'reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate' to the complexity or importance of the issues in dispute and the amount in dispute.[140]
307 Section 29 of the Civil Procedure Act provides that:
(1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to -
(a) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;
(b) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately;
(c) an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation, including
(i) an order for penalty interest in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding; or
(ii) an order for no interest or reduced interest;
(d) an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;
(e) an order that the person not be permitted to take specified steps in the civil proceeding;
(f) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.
(2) An order under this section may be made -
(a) on the application of -
(i) any party to the civil proceeding; or
(ii) any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or
(b) on the court's own motion.
(3) This section does not limit any other power of a court to make any order, including any order as to costs.
308 Section 30 of the Civil Procedure Act provides for the manner in which applications under s 29 are to be made. The plaintiffs sought orders under ss 29 and 30 against the VLSB.
309 The plaintiffs contended that the determination of whether a breach of the overarching obligations has occurred is to be conducted by objectively evaluating the conduct of the solicitor alleged to have breached those obligations having regard to the issues and the quantum in dispute in the proceeding. The plaintiffs submitted that the VLSB's application to be removed as a party was made in bad faith because it remained interested in maintaining the improper benefits it had obtained through orders made in the Magistrates' Court prosecutions which the plaintiffs contended to be unlawful. They contended that the VLSB continued to pursue specious technical arguments aimed at exploiting alleged deficiencies in the form of the plaintiffs' originating motion, although the plaintiffs were self-represented litigants.
310 The VLSB had been aware of the plaintiffs' intention to file an amended originating motion and had been sent a copy of it prior to the commencement of the hearing on 23 June 2023. This amendment addressed the purported deficiencies in the originating motion which the VLSB had sought to exploit by making an application to be removed as a party.
311 Mr Kuksal cited Williams v Spautz[141] for the proposition that Court proceedings or applications constitute an abuse of process if they have no prospect of success, or are ostensibly maintained in the pursuit of orders that may not be lawfully obtained through the proceedings.
312 The VLSB unreasonably rejected the plaintiffs' offer of 9 June 2023 to consent to its removal conditional upon its confirmation that it no longer opposed their application to have the Court declare the VLSB's orders invalid. The offer also required the VLSB to bear its own costs up until that stage of the proceeding. These conditions were reasonable given that the plaintiffs had been obliged to include the VLSB as a defendant and that the offer had been made at the earliest opportunity following the plaintiffs learning that the VLSB intended to pursue its removal application. Its written submissions sought to rely on dishonest and/or irrational justifications for its failure to negotiate a resolution of the plaintiffs' proceeding against it.
VLSB's response to the plaintiffs' costs application
313 The VLSB argued that it was well established that a self-represented litigant may not recover 'professional costs', which are 'confined to money paid or liabilities incurred for professional legal services'.[142] The VLSB accepted that a self-represented litigant may recover out-of-pocket expenses which are 'actually, necessarily and reasonably incurred' in respect of a proceeding, and 'which fall within the established bounds of claim'.[143] However, it was unclear what out-of-pocket expenses the plaintiffs claimed.
314 The costs of the VLSB's summons, which were a minor component of the 23 June, hearing, should not be determined as a discrete item. The default or presumed position created by r 63.20 is that the costs of interlocutory applications should be costs in the proceeding.
315 The VLSB relied on other factors to oppose the plaintiffs' application for costs or out of pocket expenses. It argued that the amount of such expenses was not readily divisible, nor was it likely that any meaningful out of pocket expenses were incurred. The summons was prosecuted quickly and efficiently. Moreover, a discrete costs order about such expenses would fragment the proceeding. The question of costs should be left to the conclusion of the proceeding.
316 The VLSB submitted that the plaintiffs' arguments with respect to the Civil Procedure Act and Model Litigant Guidelines and ethical responsibilities had no evidentiary basis and should be rejected. The VLSB did not contravene its obligation under the Civil Procedure Act or as a Model Litigant by issuing the summons. Rather, the summons raised a substantive, non-technical point - that it was not properly a party to the judicial review proceeding as it did not make the decision under review. While the summons was ultimately unsuccessful, the application was reasonably made, and had the VLSB succeeded, its removal from the proceeding would have likely minimised costs for all parties.
317 The VLSB also referred to the fact that the plaintiffs had circulated an array of lengthy documents which, on their face, purported to have been prepared on their behalf by an entity known as People Shop Pty Ltd. The preparation of written submissions, affidavits and summons by a person on behalf of other persons, particularly when done for a fee or reward, may be indicative that the first person is engaging in legal practice. The People Shop is not presently an incorporated legal practice registered with the VLSB. Its sole director does not have a practising certificate. The VLSB submitted that in light of the unclear provenance of the documents circulated by the plaintiffs, the preferable course was to assess costs, and whether any party was potentially disentitled to them by reason of contravening the Uniform Law, at the conclusion of the proceeding.
318 The VLSB provided a written submission regarding Mr Kuksal's letter dated 9 June 2023, which he contended contained an offer to settle the proceeding that was unreasonably refused. The substance of the plaintiffs' offer was to consent to the removal of the VLSB as a party to the proceeding subject to two conditions,[144] which in summary were, that:
(a) The VLSB and its agents would no longer object to the plaintiffs' application seeking that the orders made by the Magistrate on 7 November 2022 dismissing two subpoenas be declared a nullity or alternatively, be set aside; and
(b) the Board would not pursue costs against the plaintiffs.
319 The VLSB contended that the Court ought to disregard the plaintiffs' purported offer because it was invalid. It was not made in accordance with O 26 of the Rules nor did it contain a statement to the effect that it was served in accordance with that Order. The offer did not state whether it was inclusive of the plaintiffs' costs or that costs were to be paid or received, as the case may be, in addition to the offer, in contravention of r 26.02(4). Moreover, the time for acceptance of the offer was less than the 14 days after service, required by r 26.03(3), as the 'offer' was expressed to be open for a period of approximately 1.5 business days.
320 Nor was the offer a valid Calderbank offer and did not purport to be. It was not clear, precise and certain so as to make it capable of acceptance, nor did it provide a reasonable time for acceptance. The offer contained no reasons explaining why it should be accepted and did not contain a warning that it would be relied upon in relation to costs.
321 The VLSB contended that in the event that the Court found that the offer was valid, then it had not acted unreasonably in not accepting the offer because of the plaintiffs' conduct in this proceeding, which included making a series of applications and allegations against the VLSB. The VLSB was cautious about entering into agreements, including with the plaintiffs, when there was potential for those agreements to be challenged by a party with whom they were made.
Analysis - Costs of the VLSB summons dated 1 June
It is fundamental to the appellant's argument that the time he lost in preparing and conducting his case constitutes "costs" within the meaning of this rule. He is, however, unable to sustain that proposition. The "costs" provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of "costs".
323 In Ganesh v National Australia Bank Ltd,[147] the Court of Appeal, after referring to Cachia v Hanes, accepted that a self-represented litigant was in the same position as to the recovery of disbursements as legally-represented parties were.
324 The hearing of the VLSB's summons seeking its removal as a party occurred on 23 June 2023. At the same hearing, submissions were made about IBAC's summons of 1 June 2023 and the plaintiffs made an unsuccessful application for my recusal. The submissions about the VLSB's summons occupied a lesser part of the hearing.
325 In written submissions about the costs of the VLSB's summons, the plaintiffs made an application for costs orders and relief pursuant to s 30 of the Civil Procedure Act. They also alleged that the VLSB had contravened the Model Litigant Guidelines, that its removal as a party application was pursued fraudulently, that it endeavoured to unethically exploit the delay in the amendment to the originating motion and that it unconscionably abused the Court process and unreasonably rejected the plaintiffs' offer. I do not accept any of those arguments. I consider that VLSB made a legitimate application, although I did not agree that I should order its removal as a party. The VLSB was entitled to bring its summons seeking to be removed as a party and did not breach the Model Litigant Guidelines in doing so. For similar reasons the plaintiffs' application under ss 29 and 30 of the Civil Procedure Act is dismissed. The plaintiffs have not established that the VLSB breached any overarching obligation. The plaintiffs' offer was conditional upon the VLSB and its agents no longer objecting to the plaintiffs' application that orders made by a Magistrate made on 7 November 2022 dismissing two subpoenas be declared a nullity or be set aside and that the VLSB would not pursue costs against the plaintiffs. Even assuming that the offer was a valid offer under the Rules or a Calderbank offer, I am not satisfied that the VLSB unreasonably refused it. The plaintiffs' challenge to the orders of 7 November 2022 is yet to be determined.
326 The result is that the plaintiffs while successful in resisting the VLSB's application to be removed as a party, were unsuccessful in the applications that they made. In those circumstances, the appropriate order is that the costs or disbursements associated with the VLSB's summons of 1 June 2023 should be reserved.
327 For the sake of completeness, I note that I do not consider that the question of whether the plaintiffs have been associated with unqualified legal practice is relevant to the question of costs that I have had to decide.
(a) The plaintiffs' application dated 30 October 2023 to reopen the hearing after judgment was reserved on 10 August 2023 is dismissed save for the admission into evidence of the Prosecution note dated 7 November 2023 and the Magistrates' Court of Victoria's orders of 8 November 2023 striking out the charges against the second plaintiff.
(b) The plaintiffs' written applications made by emails on 11 and 14 December 2023 that the Court have regard to 'Newly Discovered Evidence' is dismissed.
(c) The plaintiffs' written applications made by emails on 15, 16 and 19 December 2023 that the court have regard to 'Newly Discovered Evidence' is dismissed.
(d) The plaintiffs' applications for leave to file and serve an amended originating motion in the form they circulated dated 31 July 2023 and 3 August 2023 are refused.
(e) On or before 20 January 2024, the plaintiffs have leave to file and serve on the fourth defendant an amended originating motion containing the declarations they sought against it in their proposed amended originating motion dated 3 August 2023 and grounds B81.1 to B81.5 of that document.
(f) The fourth defendant's summons dated 14 July 2023 is dismissed.
(g) The plaintiffs pay the fourth defendant's costs of its summons dated 1 June 2023 which are fixed at $7,295.00.
(h) The plaintiffs' proceeding against the fourth defendant is adjourned for directions to 10:00am on 28 February 2024.
(i) This proceeding against the first, second and third defendants is stayed until the determination of the charges against the first plaintiff, Shivesh Kuksal, being Magistrates' Court of Victoria proceeding No N10047659 and the determination of any appeal from, or judicial review (including applications for declarations) of, the determination of those charges.
(j) The costs of the third defendant's summons of 1 June 2023 be reserved.
(k) The plaintiffs' application for orders under ss 29 and 30 and of the Civil Procedure Act 2010 against the VLSB is dismissed.
329 I will give directions for the parties to make written submissions about costs of the hearings in respect to which this judgment relates other than those foreshadowed in the previous paragraph.
INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSION
[1] The Magistrates' Court sent a Hardiman letter and did not participate in the hearing.
[2] The following section contains a summary and does not use the numbering used in the originating motion.
[3] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
[4] Transcript of Proceedings, Kuksal v State of Victoria, (Supreme Court of Victoria, S ECI 2022 04808, Ginnane J, 28 July, 1-2, 4 and 9-10 August 2023) 304 ('T').
[6] Norwich Pharmacal Co v Customs and Excise Commissioners [1973] UKHL 6; [1974] AC 133 ('Norwich Pharmacal').
[8] Trading as Apex Logistics Solutions, a business associated with Mr Kuksal.
[9] The Court was informed that Mr Rapke has ceased to be the External Manager.
[10] The plaintiffs also relied on the views expressed by a Judge of the Court hearing a related proceeding in the Practice Court on 4 January 2023.
[12] S ECI 2022 04028 Kuksal & Ors v VLSB & Ors.
[14] Affidavit of John Thomas Mazaris dated 1 June 2023, [11].
[15] Mandie v Memart Nominees Pty Ltd [2016]VSCA 4; ABL Nominees Pty Ltd v Mackenzie [2014] VSC 460,[10]-[15] and O 36 of the Rules.
[16] [1992] HCA 10; (1992) 175 CLR 564, 581-582 (Mason CJ, Dawson Toohey and Gaudron JJ) (citations omitted).
[17] Mark Aronson et al, Judicial Review of Administrative Action Government Liability (Thomson Reuters, 2021, 7th ed) 1077 (citations omitted).
[20] Seymour v Attorney-General (Cth) [1984] FCA 329; (1984) 4 FCR 498, 501.
[21] R (Rushbridger) v Attorney General [2003] UKHL 38; [2004] 1 AC 357, 368 [23] (Lord Steyn).
[22] [1999] HCA 9; (1999) 198 CLR 334, 355 [44]-[56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[24] Bishop v Bridgelands Securities (1990) 25 FCR 311, 314.
[26] [2020] EWCA Civ 1605; [2021] 1 WLR 2326 (citations omitted) (Lord Burnett CJ, King and Singh LJJ).
[27] Ibid [116]-[118] (Lord Burnett CJ, King and Singh LJJ).
[28] Second Affidavit of Chloe Armstrong dated 21 June 2023, [14.1]-[14.8].
[30] Ibid [29] (Warren CJ and Nettle JA).
[32] IBAC's submissions, [52] citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [41].
[33] Affidavit of Chloe Jennifer Armstrong of 21 June 2023.
[34] Wyloo Metals Pty Ltd v Quarry Pty Ltd [2021] WASC 356 at [156]- [176].
[35] [2015] VSCA 197; (2015) 48 VR 129 ('Bare's Case').
[38] Mr Kuksal relied on Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) HCA 49; (1998) 194 CLR 247.
[43] T 352-353; cf Mr Kuksal's submission, T 29 (2 June 2023).
[47] Section 184 makes it an offence to disclose information received from IBAC other than in specified circumstances.
[48] The term 'assessable disclosures' is defined in s 3 of the PID Act.
[50] Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 530-1 applied in Maguire v Parks Victoria [2020] VSCA 172 [63].
[51] IBAC Act s 164 and s 73(2)(a) and (b).
[57] [2020] VSCA 172, [64] (Ferguson CJ, Kyrou and Niall JJA).
[58] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [41].
[64] Macedon Ranges SC v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422,434 [40]-[41]; Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2015] VSC 515 [40].
[65] IBAC cited Shrimpton v The Commonwealth [1945] HCA 4; (1945) 69 CLR 613, 619-20 and 629-30.
[66] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 362 [63] (French CJ).
[69] This was the approach of Tate JA and Santamaria JA in Bare [236], [328], [461], [669].
[70] [2007] SASC 460 ('Hall').
[73] [1983] UKHL 1; [1983] 2 AC 237 ('O'Reilly').
[76] [2021] WASC 356 ('Wyloo').
[83] Hall & Hall v City of Burnside & Ors (No 4) [2007] SASC 460.
[85] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69.
[87] Director of Public Prosecutions v Edwards [2012] VSCA 293; (2012) 44 VR 114, 14-125 [39]-[40] (Warren CJ) ('Edward's Case').
[89] T 147; citing Banque Commerciale (SA) v Akil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279.
[90] [2012] VSCA 293; (2012) 44 VR 114, 157-8 [203]-[206].
[91] Affidavit of Matthew Hocking sworn on 29 June 2023.
[92] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257, 263; Jackamarra v Krakouer (1998) 195 CLR 516; Gajic v Harb [2011] VSCA 132.
[98] The plaintiffs relied on Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325.
[99] [2006] FCA 22 [24]. See CC Containers Pty Ltd v Lee (No 5) [2013] VSC 619 [8] (Ferguson J).
[103] [2000] VSCA 171; (2000) 2 VR 246 [20]-[21].
[108] [2001] FCA 145; (2001) 111 FCR 395, 399 [10]-[12].
[109] [2010] EWCA Civ 70 [33].
[110] In Western Truck Towing Pty Ltd v Magistrates' Court of Victoria [2014] VSC 88, I expressed my views on this question.
[111] Civil Procedure Act 2010 s 49(3)(c), (d), (f) and (g).
[112] Ibid s 49(3)(j).
[116] Minister for Immigration v WZARH (2015) 256 CLR 326.
[119] Mr Kuksal referred to Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 and Jadwan Pty Ltd v Rae and Partners (a Firm) (No 7) [2022] FCA 1174p; T 32-33.
[120] Third Affidavit of Chloe Armstrong dated 27 July 2023, [9].
[122] [2012] VSCA 293; (2012) 44 VR 114, 125 [40].
[126] [2021] VSC 160 (John Dixon J).
[127] Ibid [17] quoting Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 88 [40].
[130] Third Affidavit of Chloe Armstrong dated 27 July 2023; T 55.
[138] Kuksal v State of Victoria [2023] VSC 438.
[142] VLSB's Written Submissions on Costs dated 15 August 2023, [7].
[144] VLSB's Written Submissions on Offer dated 10 October 2023, [4].
[145] (1994) 179 CLR 403, 409 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ). See also Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333.
[146] (1994) 179 CLR 403, 409.
[147] [2021] VSCA 45, [89].
Kuksal
State of Victoria [2023] VSC 625
(1992) 175 CLR 564
(1984) 4 FCR 498
(1999) 198 CLR 334
(1990) 25 FCR 311
(2013) 42 VR 27
(2019) 264 CLR 421
(2015) 48 VR 129
(1998) 194 CLR 247
(1980) 146 CLR 493
(2008) 19 VR 422
(1945) 69 CLR 613
(2013) 249 CLR 332
(2006) 102 SASR 298
(1997) 192 CLR 69
(2012) 44 VR 114
(1990) 169 CLR 279
(1984) 3 FCR 344
(1998) 195 CLR 516
(2001) 111 FCR 395
(2018) 266 CLR 325
(2000) 2 VR 246
(2015) 256 CLR 326
(2019) 269 CLR 333
(1998) 193 CLR 72
(1992) 174 CLR 509
(1994) 179 CLR 403