Plaintiffs v Defendants

PRACTICE AND PROCEDURE - Where plaintiffs indicate intention to serve notices on Attorney-General and the Victorian Equal Opportunity and Human Rights Commission under Charter of Human Rights and Responsibilities Act 2006 (Vic) and on Attorney-General under Judiciary Act 1903 (Cth) and then to apply to add them as defendants - Whether plaintiffs have statutory right to add them as defendants - Whether Court required to determine whether any opposition to their joinder would be a proper exercise of their powers - Where potential differences in relief sought in plaintiffs' originating motion and summons - Not necessary for Court to determine these issues at this stage.

PRACTICE AND PROCEDURE - Listing of defendants' summons to strike out proceeding - Where plaintiffs oppose listing - Appropriate to list summons for hearing - Civil Procedure Act 2010 (Vic).

1 These reasons concern a number of matters including a recusal application that arose in the course of a mention in this proceeding on 10 July 2024. Before turning to these matters, I will set out some of the background to the proceeding.

2 The plaintiffs (Mr Shivesh Kuksal, Ms Maria Di Gregorio, Ms Lulu Xu, People Shop Pty Ltd and Mr Peter Ansell) commenced this proceeding on 29 September 2022 by filing an originating motion headed 'Originating Motion for Judicial Review'. On 26 October 2022 they filed a summons. On 2 November 2022, the defendants filed a summons seeking to have the plaintiffs' originating motion and/or summons 'set aside or struck out' or that the proceeding be stayed. On 3 November 2022, the plaintiffs filed a further amended summons.

3 On 9 November 2022, Judicial Registrar Keith ordered the plaintiffs to file and serve 'all the evidence upon which they intend to rely with respect to the determination of separate questions at paragraphs one to three' of their further amended summons filed 3 November 2022 and made directions for the hearing of those paragraphs and the defendants' summons. Paragraphs one to three of the plaintiffs' further amended summons filed 3 November 2022 seek, among other things, declarations that the first defendant (the Victorian Legal Services Board 'the Board') appointed for an improper purpose the second and third defendants (Mr Damian Neylon and Mr Gordon Cooper) to investigate certain matters and the fourth defendant (Mr Howard Rapke) as an external manager of People Shop Pty Ltd. People Shop Pty Ltd was trading as Erudite Legal.

4 There was then a delay in the proceeding due to an appeal that the plaintiffs brought against other orders made by Keith JR relating to the summons filed by the defendants. That appeal was unsuccessful.[1] In the course of the hearing of that appeal on 17 August 2023, the plaintiffs indicated that they could file the balance of their material relied on in support of paragraphs one to three of their summons within a day.[2] On 7 September 2023, following some further argument in relation to costs and whether the Court had the power to impose limits on the length of affidavits,[3] the plaintiffs were ordered to file and serve any affidavit material on which they intend to rely with respect to paragraphs one to three of their summons by 29 September 2023. Orders were also made for the exchange of written submissions. The determination of paragraphs one to three of the plaintiffs' summons was set down for hearing on 5 December 2023 along with the summons filed by the defendants on 2 November 2022.

5 In late November 2023, the plaintiffs communicated to my chambers that they wished to apply for an order that I recuse myself, for leave to file additional affidavit material, and to issue subpoenas. I directed them to provide, among other things, a written submission setting out the reasons for which the subpoenas were required and why they had not been sought earlier. The plaintiffs did not provide such a document. On 4 December 2023, they filed a summons in which they sought orders that they be released from Harman undertakings[4] associated with documentation obtained by them in the course of another proceeding in another court, leave to amend their originating motion, and that I recuse myself. The plaintiffs' 4 December 2023 summons, instead of paragraphs one to three of the plaintiffs' 3 November 2022 summons, was argued on 5 December 2023. On 11 December 2023, I dismissed the applications made in the 4 December 2023 summons and published reasons.[5]

6 The proceeding came on for mention again on 29 February 2024 including for the determination of the costs of the plaintiffs' 4 December 2023 summons. The plaintiffs that day made another application, orally, that I recuse myself and sought a stay of the costs determination. Those applications were made without notice. I heard them on 29 February 2024. On 8 March 2024, I published reasons dismissing those applications,[6] ordered costs against the plaintiffs, and ordered the parties to provide before 15 March 2024 their proposed form of order 'for the progression in this proceeding towards the hearing of paragraphs one to three of the plaintiffs' 3 November 2022 summons and the defendants' 2 November 2022 summons'. The defendants provided a proposed form of order but the plaintiffs did not.

7 The proceeding was brought back for mention on 17 May 2024. The plaintiffs made a further application that I recuse myself. The application was, again, made orally. I dismissed that application and gave oral reasons for doing so. On that day I also gave the plaintiffs leave to file a subpoena addressed to the Victorian Legal Services Commissioner, Ms Fiona McLeay, substantially in the form of a draft dated 29 February 2024 previously provided to my chambers by the plaintiffs and circulated to the other parties, with the date for production being 10 July 2024, and noted that this was without prejudice to the addressee's right, should it wish to do so, to apply to have the subpoena set aside. I did not grant the plaintiffs leave to file a subpoena addressed to the Chief Commissioner of Victoria Police and gave oral reasons for doing so. I gave the defendants leave to file and serve an amended summons, which they did on 20 May 2024, and listed the matter for further mention on 10 July 2024.

8 Ms Di Gregorio has filed a notice of discontinuance. It seems that People Shop Pty Ltd has purported to act other than by solicitor. No one announced an appearance for it at the mention on 10 July 2024. When I hereafter refer to 'the plaintiffs', I am referring to Mr Kuksal, Ms Xu and Mr Ansell.

9 A number of issues arose at the 10 July 2024 mention.

10 The plaintiffs made a further application that I recuse myself. The application was made orally and without notice. The application focused on:

(a) A paragraph in reasons I published on 4 June 2024 in a different proceeding in which the Board is seeking injunctions against Mr Kuksal, Ms Xu and Mr Ansell.[7] On 18 October 2022, the Board failed or refused to renew Mr Ansell's practising certificate, and he continues not to have a practising certificate. Mr Ansell was at the time employed by People Shop Pty Ltd trading as Erudite Legal and without Mr Ansell's practising certificate People Shop Pty Ltd, a company with which Mr Kuksal and Ms Xu are associated, was not entitled to engage in legal practice. Mr Kuksal, Ms Xu and Mr Ansell sought to subpoena documents directed at establishing that the Board acted in bad faith when it failed or refused to renew Mr Ansell's practising certificate, on the grounds that this would invalidate the Board's failure or refusal to renew the practising certificate and retrospectively, as it were, validate any engaging in legal practice that had taken place in the meantime;

(b) A paragraph in reasons I published on 26 June 2024, also in that other proceeding.[8] Those reasons concerned, among other things, why I dismissed an application that I recuse myself for actual bias. In the relevant paragraph,[9] I referred to Mr Kuksal's contention that Victoria Police and the Board had conspired to cause him harm, that the Board had maliciously abused its authority, that various people had acted fraudulently, and to various criticisms that Mr Kuksal levelled at my conduct and handling of the proceeding;

(c) A contention that I had not given adequate attention to r 46.05 of the Supreme Court (General Civil Procedure) Rules 2015 when I permitted the defendants to rely on their 2 November 2022 summons that came before Keith JR before it had been served on the plaintiffs; and

(d) The fact that I have made lump-sum costs orders against the plaintiffs that were 'perverse'.

11 I do not accept that any of these matters might cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the issues that I have to resolve.[10]

12 In the paragraph of my reasons referred to in para 10(a), I said:

[24] I do not accept that this proceeding raises those issues for determination. In my view, it is clear beyond any sensible argument that if a lawyer, like Mr Ansell, has had his practising certificate cancelled or revoked or not renewed by the Board, then that person is thereafter not entitled to practice. If, in due course, it is established that the Board was wrong to cancel or to revoke or not to renew that practising certificate, or acted improperly, and the practising certificate is reinstated, then the right to practice would return. But until that happens, that person is not entitled to engage in legal practice under some fiction that they always held a practising certificate. This proceeding is concerned with the situation as it currently stands.[11]

13 I remain of that view. If a solicitor is entitled to continue to practice after his or her practising certificate has been cancelled or not renewed until such time as an application to have that cancellation or non-renewal reviewed has been determined, the ability to regulate the profession in the interests of the public would be seriously harmed.

14 Mr Kuksal submitted that this paragraph was 'morally perverse' (including because Mr Ansell had been punished by the Board for making a 'public interest disclosure') and 'condoned a tyrannical version of government'. I make no finding on the circumstances that led to the Board not renewing Mr Ansell's practising certificate, but otherwise disagree with this submission. Mr Kuksal submitted that s 463 of the Legal Profession Uniform Law[12] supported his contention and that I had 'prejudged' his, Ms Xu's and Mr Ansell's 'criminal guilt'. Section 463 of the Legal Profession Uniform Law states that if a tribunal or court on review varies a decision or substitutes a new decision of an original decision maker, then the decision of the court or tribunal is taken to be the decision of the original decision maker and is taken to have had effect as from the date of the original decision unless the tribunal or court orders otherwise. In my view, this does not mean that, while the application for review is yet to be determined, persons can behave as if the application for review has already been heard and determined in their favour. I may, of course, be wrong, and if I am that may in due course be corrected on appeal, but, as I have previously explained, the making of an error does not lead to an apprehension of bias.

15 I should add that in support of his general proposition that the Court retained and must exercise its power to control the executive, Mr Kuksal relied in particular on, R v Trade Practice Tribunal; Ex parte Tasmanian Breweries Pty Ltd,[13] Kirk v Industrial Court of New South Wales,[14] Assistant Commissioner Condon v Pompano Pty Ltd[15] and Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions.[16] These cases establish, speaking generally, the uncontroversial propositions that there is a separation of powers and that the Court has a role in ensuring that the executive acts lawfully and that an act may be unlawful if it is performed for an improper purpose.

16 In the paragraph of my reasons referred to in para 10(b) above, I said:

[6] I have, however, considered Mr Kuksal's letter. He contends that Victoria Police and the Board conspired to cause him harm, that the Board maliciously abused its authority, and that various people have acted fraudulently. More relevantly to the contention that I should recuse myself for actual bias, the letter contends that I have (among other things): 'remained unaffected by flagrant violations of the law'; 'unlawfully' aided the Board and others in denying the defendants 'due process'; 'condemned Mr Ansell to be effectively convicted of a criminal offence'; unlawfully stayed another proceeding; refused to permit the issue of subpoenas; failed to investigate (or have others investigate) whether Mr Kuksal's complaint to the Independent Broad-based Anti-corruption Commission ('IBAC') was made in bad faith; 'repeatedly engaged in (ostensibly dishonest) misrepresentations in relation to multiple matters'; and that this has, at least in part, been done by me in retaliation for their making a complaint about me to the IBAC. He also contended...that I had 'improperly considered' an affidavit sworn by an ex-employee of a company associated with Mr Kuksal.[17]

17 Mr Kuksal submitted that by not determining, in the context of the recusal application then being considered in that proceeding, whether or not the complaints of misconduct were valid, I had 'brought the administration of justice into disrepute'. He also submitted that because no judge would 'leave that sort of allegation unanswered' the implication was that I had accepted the allegations of misconduct in so far as they concerned me. There is nothing in either of those submissions. I, clearly, did not accept the allegations of misconduct that Mr Kuksal made against me. Further, a recusal application is not the forum in which the merits of an underlying proceeding are to be determined. My failure to make factual determinations as to whether Victoria Police and the Board have engaged in improper conduct prior to determining that recusal application is no reason for me now to recuse myself.

18 There is, equally, nothing in the submission that I did not give adequate attention to r 46.05 of the Supreme Court (General Civil Procedure) Rules 2015. That rule requires that a summons shall be served a reasonable time before the 'day for hearing named in the summons' and in no case later than 2:00pm the previous day. This rule is directed at ensuring that parties have sufficient notice before an application made by summons is heard. In this case, the application in the defendants' 2 November 2022 summons was for an order that the plaintiffs' proceeding be set aside or struck out or stayed. That application has not yet been heard. Further, the summons itself said only that the 'directions hearing' (not the application itself) would be heard on 9 November 2022. I doubt that r 46.05 was infringed, but if it was, and for reasons set out by me in Kuksal v Victorian Legal Services Board,[18] there was absolutely nothing unfair in Keith JR making directions in relation to the defendants' summons in the circumstances in which he did so.

19 I also reject the submission that my making of costs orders against the plaintiffs,[19] or fixing those costs, is a reason to recuse myself from further hearing this or other proceedings in which they are involved.

20 The application that I recuse myself will be dismissed.

C.2 Potential involvement of the Attorney-General

21 Mr Kuksal indicated that the plaintiffs proposed to serve a notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006 on the Attorney-General and on the Victorian Equal Opportunity and Human Rights Commission ('the Commission') and to add them both as defendants to this proceeding. He also, as I understood it, indicated an intention of the plaintiffs to serve a notice under s 78B of the Judiciary Act 1903 (Cth), but he focused on the notice to be given to the Attorney-General under s 35 of the Charter of Human Rights and Responsibilities Act 2006.

22 Section 35 of the Charter of Human Rights and Responsibilities Act 2006 provides that a party to a proceeding must give notice in the prescribed form to the Attorney-General and to the Commission if a question of law arises that relates to the application of the Charter or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter. Section 34 of the Charter of Human Rights and Responsibilities Act 2006 provides that the Attorney-General 'may intervene in, and may be joined as a party to' a proceeding in which such a question arises. Section 40 of the Charter of Human Rights and Responsibilities Act 2006 provides that the Commission 'may intervene in, and may be joined as a party to' a proceeding in which such a question arises.

23 Mr Kuksal submitted, as I understood it, that relevant question arose because the passage from my earlier reasons set out in para 12 above amounted to an assertion or conclusion that the renewal or not of a practising certificate is 'beyond judicial review' or 'immune or impervious to the consideration of the impact on human rights'. Mr Kuksal indicated that he would need three weeks to finalise and to serve these notices, and that the Attorney-General should be given three weeks to respond. Mr Kuksal explained that in the event that the Attorney-General did not seek to intervene in the proceeding, he would then apply by summons to have the Attorney-General added as a party. He submitted that:

(a) The Court would then have to determine 'whether or not the human rights issues actually arise or not', because, if they do, then the plaintiffs had a 'statutory right' to add the Attorney-General as a defendant;

(b) If the Attorney-General resisted an application to add her as a defendant, the Court would then first to have to determine whether her opposition to her joinder was 'lawful' or 'in the performance of [her] duty'. I took this to mean that he was submitting that, rather than merely determining whether the Attorney-General should be added as a party, the Court would first have to determine and to evaluate the propriety of any decision by her to oppose her addition; and

(c) These processes (and presumably like processes in relation to the Commission) had to be undergone before the plaintiffs' relevant applications could be set down for hearing.

24 Mr Kuksal also submitted, as I understood it, that a constitutional issue has arisen because he has previously contended that I have engaged in 'corrupt conduct' and that I have not recused myself until such time as there has been a proper investigation of those allegations (not by me) or a determination that he made those allegations in 'bad faith'. I reject any submission that, on a party making allegations of misconduct against a judge, the judge must step down until the allegations have been investigated and determined or until it has been determined that the allegations against the judge have been brought in bad faith.

25 I do not consider that the Court is required, now, to determine whether the serving of the various notices is necessary or would be appropriate. I indicated to the plaintiffs that if they wanted to add the Attorney-General as a party, that application should be made on notice and that I could deal with it if and when it arose. The same would apply with any application to add the Commission.

C.3.1 To the Victorian Legal Services Commissioner

26 As noted in para 7 above, on 17 May 2024 the plaintiffs sought, and were given, leave to file and serve a subpoena directed at the Victorian Legal Services Commissioner Ms McLeay substantially in the form of a draft provided by them dated 29 February 2024, with the date for production being 10 July 2024. The plaintiffs did not, however, file and serve a subpoena addressed to the Victorian Legal Services Commissioner substantially in the form of the draft provided dated 29 February 2024. They instead attempted to file a subpoena in a different form. The draft in respect of which I granted leave sought production of:

1. All the documents (including those generated as a result of phone conversations, online conferences and in-person meetings) generated, shared or received between 1 February 2021 and 29 February 2024 by you or the Victorian Legal Services Board [LSB] in relation to:

1.1. Mr Shivesh Kuksal;

1.2. Mr Peter Ansell;

1.3. Ms Lulu Xu;

1.4. People Shop Pty Ltd trading as Erudite Legal or New Edge Law;

1.5. Avant-garde Logistics Solutions Pty Ltd trading as Apex Logistics Solutions; and

1.6. Renaissance Man Pty Ltd trading as R M Legal Consultants.

27 As well as adding 'Freight Xpress Pty Ltd' to the above list of entities, the document that the plaintiffs sought to file notably added the following:

1. The unredacted versions of the documents included in the Appendix accompanying this document.
2. All documents in your or the LSB's possession concerning the costs incurred by the LSB arising out of:

3.1 Its investigation of Mr Shivesh Kuksal, Mr Peter Ansell, Ms Lulu Xu, the Firm, AGLS, FX and RM Legal; and

3.2 Its involvement in or monitoring of proceedings involving Mr Shivesh Kuksal, Mr Peter Ansell, Ms Lulu Xu, the Firm, AGLS, FX and RM Legal

[Included] costs associated with legal representation, disbursements, administrative costs, costs associated with consumption of resources and costs measured in accordance with any other criteria adopted by the LSB to track the expenditure of financial resources. A reference to costs includes those costs in relation to which LSB may have been awarded a costs order reimbursing it for partial or complete costs calculated in accordance with the preceding paragraph.

29 The document the plaintiffs sought to file was accompanied by an appendix of over 110 pages consisting of affidavits including exhibits filed by the Board in this and related proceedings involving costs.

30 No explanation for the addition of the extra paragraphs was given prior to the mention. At the mention, Mr Kuksal submitted that the additional paragraphs merely clarified, in the sense of identifying a sub-category, the documents that were caught in any event by paragraph 1 of the subpoena. When asked why they were not included in the version in respect of which leave was sought, Mr Kuksal said that the additional paragraphs were added out of a concern that I might set aside the subpoena in its original form on the application of the addressee, the Victorian Legal Services Commissioner Ms McLeay. He said:

Now, after Your Honour made some comments about how broad it was and because of the decisions that Your Honour has made, we suspected that Your Honour was acting in bad faith and would improperly dismiss that subpoena. So to take some protective measure, we specified a couple of those documents in the body of the subpoena. That subpoena was not sealed by the registry.

31 The Registry was correct not to accept the subpoena that the plaintiffs sought to file because it was not substantially in the form of the draft subpoena in respect of which I had given leave. Mr Kuksal indicated that he did not require a decision from me in relation to the proposed additional paragraphs, because the plaintiffs were intending to 'further particularise' that document. Be that as it may, I am, at present, not satisfied that there is a legitimate forensic purpose for the production by the Board of documents, or unredacted copies of documents, relating to the costs the Board has incurred in its dealings with the plaintiffs over time.

C.3.2 To the Chief Commissioner of Victoria Police

32 On 17 May 2024, I refused the plaintiffs leave to file a subpoena directed to the Chief Commissioner of Victoria Police in the form of a draft dated 29 February 2024. I attach as an appendix to these reasons the schedule of documents sought in that proposed subpoena. In my oral ruling, I said the following:

I am satisfied, however, that there is no legitimate forensic purpose for the issue of the subpoena addressed to the Chief Commissioner of Police in the wide form in which it is expressed, and that its issue would be an abuse of process. The issues that arise in this proceeding concern the conduct of the Victorian Legal Services Board. The proposed subpoena seeks extensive documentation, relating to interactions between police and an ex-employee of the plaintiffs.... The interaction between the police and [the ex-employee] does not arise as an issue in this proceeding, which is concerned with the conduct of the Victorian Legal Services Board. Further, I am satisfied that many of the categories of documents sought are so extensive that the subpoena may properly be described as oppressive.

In circumstances where I have formed the view that the proposed subpoena would be an abuse of process, I am also satisfied that the Court has power, in the exercise of its inherent jurisdiction, not to allow the subpoena to be issued.

33 I indicated to Mr Kuksal that if he wanted to prepare another form of subpoena that was substantially more limited, he should circulate it and I would consider whether to give leave to file it. On 21 May 2024, Mr Ansell emailed to my chambers what was described as a 'reformed proposed subpoena' to the Chief Commissioner. I had not considered that proposed subpoena prior to the 10 July 2024 mention. The plaintiffs relied on my failure to have done so as another reason for which I should recuse myself. I can understand their disappointment that I did not respond promptly to their request, but do not consider my failure to do so to be a reason to recuse myself.

34 The 21 May 2024 draft or proposed subpoena seeks production of the following documents (some footnotes, names and defined terms have been excluded):

1. The running sheets and police incident reports (LEDR entries) maintained by Victoria Police in relation to its visit to 420 St Kilda Road, Melbourne, Victoria, 3004 on 22 August 2022, the date on which People Shop Pty Ltd's [Firm]'s files and office equipment were seized by Mr Howard Rapke, the purported external manager appointed by the Victorian Legal Services Board [LSB] to oversee the Firm's operations.
2. The notes and documents associated with the police incident report "LEDR Mk2 Field Contact 24244954".
3. All the documents in relation to the Magistrates' Court of Victoria proceedings, N10047659..., K12128195..., K11552219..., N1243688... and the Supreme Court of Victoria Proceeding [redacted] ..., S ECI 2022 04808..., S ECI 2022 05407... and S ECI 2023 00183... (including those generated as a result of phone conversations, online conferences and in-person meetings) generated, shared or received by Victoria Police on account of their correspondence between 1 May 2022 and 21 May 2024 with:

3.1. The LSB;

3.2. The Victorian Legal Services Commissioner;

3.3. Holding Redlich;

3.4. Mr Howard Bowles;

3.5. Ms Anna Alevizopolous;

3.6. Mr Gordon Cooper;

3.7. Mr John Thomas Mazaris;

3.8. Ms Jasmyn Kane;

3.9. Ms Xuan Tang;

3.10. Mr Howard Rapke; and

3.11. Ms Kylie Hall.

1. All the documents exchanged between Victoria Police Officers and agents of the LSB or Victorian Legal Services Commissioner pursuant to the LSB's requests as captured in the document accompanying this correspondence marked "Appendix B".
2. The unredacted version of the correspondence, including all attachments and emails forwarded as accompaniments to it, sent by [name of ex-employee] to Senior Constable Mitchell Olney on 1 March 2023 concerning Mr Peter Ansell's service of a concerns notice on behalf of Mr Kuksal at her residence on 1 March 2023. A partially redacted version of the correspondence accompanies this document as "Appendix C".

35 The footnotes made it clear that the documents of which production was sought included text files, handwritten notes and all information stored in electronic form, and that where correspondence is sought it includes correspondence from employees, contractors and persons acting on behalf of the named persons.

36 This proceeding concerns whether certain decisions made by the first defendant in 2022, or actions taken by the defendants in 2022, were unlawful. On 22 August 2022, Mr Rapke, the fourth defendant, took possession of People Shop Pty Ltd. Police were present when this was done. I will grant the plaintiffs leave to file a subpoena that requires the production of the documents described in para 1 of the 21 May 2024 draft. (This is, of course, without prejudice to the rights of the Commissioner to apply to have it set aside if he wishes to do so.) I am not satisfied that there is a legitimate forensic purpose for the issue of a subpoena that requires the production of the categories of documents described in paragraphs 2 to 5 of the 21 May 2024 draft and I consider that the issue of a subpoena in that form would be oppressive and an abuse of the Court's processes.

37 Accordingly, I will grant leave to the plaintiffs to file a subpoena addressed to the Chief Commissioner of Victoria Police, Shane Patton, substantially in the form of the 21 May 2024 draft but that requires production of the category of documents described in paragraph 1 of that draft only. The date for production should be one month after the date of issue.

38 I should note, for the record, that the plaintiffs maintained their position, with which I disagree, that it is wrong for me to evaluate their proposed subpoenas and that the Court should instead simply issue them and leave it to the addressee, if they wished to do so, to apply to have them set aside. Mr Kuksal also indicated that he anticipated seeking to issue further subpoenas addressed to the Commissioner of Victoria Police.

39 I raised with the plaintiffs the utility of their continuing with the proceeding and whether it would be appropriate for a Court to grant the declaratory relief they seek in circumstances where the defendants are no longer holding the positions to which they were appointed (Mr Rapke's appointment ended in February 2023). Mr Kuksal said that the plaintiffs had a 'right' under s 36 of the Supreme Court Act 1986 to seek declaratory relief and that the Court 'cannot say "no"'.[20] He emphasised the importance of the judiciary exercising its supervisory power over administrative bodies and also explained that, from his perspective, this proceeding was likely just the first in a series of steps aimed at achieving (in my words) justice as he saw it. When asked what purpose declaratory relief would serve, he said:

It predetermines misfeasance and it predetermines professional misconduct and, you know, we do whatever we can to punish them with those determinations in whatever manner is lawful.

40 Whether it is appropriate that declaratory relief be given so that it may be used as a form of estoppel in future proceedings seeking further relief is an issue that I do not have to determine at this stage.

C.5 The structure of the plaintiffs' proceeding

41 Strictly, the final relief sought by way of originating motion should be identified in the originating motion. A plaintiff applying for judicial review is required to file a summons for directions.[21] The Supreme Court (General Civil Procedure) Rules 2015 also provide that where an originating motion requires an appearance (as this one did), then a plaintiff is required to file a summons in Form 45A. Form 45A makes it clear that the summons should set out the relief or remedy sought, but that the relief or remedy sought and required to be set out is the relief or remedy as sought in the originating motion.

42 The originating motion as filed was expressed to seek judicial review in accordance with ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 of the Board's decision to appoint people to the legal practice. It is clear that commencing a proceeding by originating motion is appropriate where judicial review is sought. The originating motion seeks orders beyond what are normally seen in an application for judicial review. The plaintiffs' amended summons seeks determinations and declarations that the appointments were for an improper purpose and nullities at law. The relief the summons seeks is expressed in different terms to the relief sought in the originating motion and is expressed as being made pursuant to s 358 of the Legal Profession Uniform Law (Vic), s 1324 of the Corporations Act 2001 (Cth), and various other statutory provisions referred to in the originating motion.

43 I raised these issues with the parties at the 10 July 2024 mention. Mr Kuksal submitted that the summons sought a writ of mandamus rather than declaratory relief but was otherwise only a 'rephrasing of what is sought in the originating motion'. It is not necessary for me, now, to decide whether this is so.

44 Towards the end of the mention, Mr Kuksal sought leave to file in this proceeding the material that was before me in the other proceeding to which he referred in making the recusal application so that he could then produce it in an appeal from this decision. The recusal application, brought orally and without notice, was argued without objection on the basis that the material referred to was able to be relied on. I did not permit the plaintiffs (after the submissions had been made) to file this material but noted that they, or any one of them, could if necessary produce those documents in an appeal in the event that I dismissed the recusal application.

C.7 Should the plaintiffs' proceeding or summons now be set down for hearing?

45 As the above makes clear, the plaintiffs have had on foot a proceeding in this Court since 29 September 2022 in which they allege improper motives on the part of the defendants. At the 10 July 2024 mention, the plaintiffs resisted having their claims set down for hearing on the grounds that, among other things, they first need to obtain further material by subpoena and to add the Attorney-General as a party to the proceeding. This is despite their saying, on 17 August 2023, that they wanted an expedited hearing of paragraphs one to three in their summons, that they had prepared their material, and that they could file it all that day. Mr Kuksal submitted that as time has passed they had found out more information, and that this was why further steps now had to be taken.

46 In circumstances where I have given leave to have subpoenas issued but they have not yet been issued, where the plaintiffs wish to take steps in relation to the Attorney-General, I will accede to their request and not now set down paragraphs one to three of their amended summons for hearing.

C.8 Should the defendants' summons now be set down for hearing?

47 On 9 November 2022, Keith JR ordered the defendants to file and serve an outline of submissions in support of the relief sought in their summons by 18 November 2022, and the plaintiffs to file and serve any outline of submissions setting out the reasons for their opposition to the relief sought in the defendants' summons by 9 December 2022. The defendants complied with this order. The plaintiffs did not. In their outline of submissions filed on 18 November 2022, the defendants, among other things, criticise the forms in which the plaintiffs originating motion and summons are expressed, challenge whether the plaintiffs have standing, dispute Mr Kuksal's right to prepare and file documents on behalf of the other plaintiffs (if that is what he has done), challenge the jurisdictional basis of the claims made, and challenge the ability of the plaintiffs in a proceeding of this type to obtain the relief that they seek.

48 As noted in para 6 above, on 8 March 2024 I directed the parties to file a proposed form of order for the further progression of this proceeding. The defendants complied with this direction, but the plaintiffs did not. The defendants contended in the memorandum they filed on 15 March 2024 that their summons could be determined 'via legal argument' and 'without recourse to evidence', and 'need not be delayed by the return of subpoenas or other interlocutory steps'. They sought, if there were to be delays with the listing of the plaintiffs' application, that their summons should be listed for hearing in the meantime.

49 When I addressed with counsel for the defendants at the 10 July 2024 mention their proposal that their summons be heard first, and some of the issues that might be amenable to being determined without the hearing of full evidence, Mr Kuksal took exception and suggested that I was improperly inviting a submission from the defendants' counsel that I list their summons for hearing first. He relied on this as a further reason for which I should recuse myself. I reject that submission. I assume, in his favour, that when Mr Kuksal made that submission he had forgotten that the defendants had already filed documents that had raised those issues and sought that the hearing of their summons not be delayed.

50 The plaintiffs resisted the listing of the defendants' summons for hearing. Mr Kuksal submitted that the summons itself was filed for an improper purpose and so was an abuse of process, and so it could or should not be heard until I had first determined whether it was filed for an improper purpose, which meant that it could not be heard until the plaintiffs' case had been heard and determined. He also submitted, as I understood it, that the defendants were acting improperly by even seeking to have the summons listed for hearing, and suggested or implied that that too had to be investigated before the summons was set down for hearing. He relied, again, on Strickland v Commonwealth Director of Public Prosecutions.[22] I reject this submission. I assume that the defendants filed their summons motivated by a desire to bring this proceeding to an end. That would be the case for every like summons that is filed. More fundamentally, the defendants' arguments are either good in law or they are not. If they are good arguments, then effect should be given to them, and if they are not good arguments, then effect should not be given to them. It is not necessary first to engage in some form of enquiry into what motives the defendants might have beyond their desire to bring the proceeding to an end.

51 Ms Xu, as well as adopting Mr Kuksal's submissions, submitted that there would be no utility in hearing the defendants' summons because even if the proceeding were struck out or dismissed it could be brought again, and submitted in the alternative that no decision should be made on when to list the defendants' summons until after they had filed updated submissions. Mr Ansell, as well as adopting Mr Kuksal's submissions, submitted that the proceeding in which the Board is seeking injunctive relief against him and the other plaintiffs should be delayed until after the hearing of this proceeding.

52 I do not accept these submissions. The Court under the Civil Procedure Act 2010 is required to give effect to the overarching purpose, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[23] There are now likely to be significant delays before the plaintiffs' summons can be heard. There is no reason why the defendants' summons should not be determined in the meantime. I will set it down for hearing, and make an order for the filing of written submissions by the parties.

53 As noted above, the recusal application was made orally and without notice having been given to the Court or the other parties. I indicated to Mr Kuksal, whose submissions the other plaintiffs adopted, that this was unsatisfactory and that I would consider whether to make an order to the effect that any further recusal applications be made on notice and supported by a written submission. He submitted that this would be an unlawful exercise of judicial power, because he had an effectively untrammelled right to make recusal applications orally and without notice and whenever he wished and that if such an application were made the Court was obliged, effectively immediately, to give him adequate time to present argument and not to take any steps until such time as it had ruled on the application.

54 I disagree. The Court retains an overarching power to control its own processes. If the situation were as Mr Kuksal contends, a party would have the practical ability to frustrate the proper management and hearing of a proceeding by making repeated and unmeritorious recusal applications. This would not just lead to a waste of Court time, but also impose an unfair burden on other parties to litigation.

55 It is difficult, of course, to know where to draw the line. It is an abuse of process to bring a recusal application for no good reason or to bring a second recusal application on the same grounds as an earlier and dismissed recusal application, but it is not always easy to determine whether an application is brought for no good reason or on the same grounds without allowing it to be developed at least to some degree. That said, Mr Kuksal, Mr Ansell and Ms Xu have made many recusal applications, none of which have succeeded and all of which were or appear to have been without any real merit.[24] Significant time at the commencement of each recent court appearance has been taken up with hearing those applications. This has wasted Court time and frustrated the orderly preparation of the proceeding for trial. The situation has now been reached where, in my view, it is justified that I make an order requiring Mr Kuksal, Mr Ansell and Ms Xu, if they wish to make any further recusal application at an occasion on which the proceeding is listed to come before the Court (whether that be for mention, directions or hearing), to file and serve a written submission at least three clear working days in advance of the date on which the proceeding is listed to come before the Court setting out the reasons for which the recusal is sought. The Court may then decide the application of the papers or determine to let the application be developed orally.

(a) The first, third and fifth plaintiffs' application made orally for recusal be dismissed.

(b) The first, third and fifth plaintiffs have leave to file and serve a subpoena on the Chief Commissioner of Police substantially in the form of their proposed subpoena dated 21 May 2024 but limited to paragraph 1 of the schedule to that proposed subpoena, with the date for production being one month after the date of issue.

(c) Any further application by the first, third or fifth plaintiffs for recusal at any mention, directions hearing or other hearing in this matter be made on notice and with the first, third and/or fifth plaintiffs first serving written submissions no less than 3 working days prior to the mention or hearing and of no more than 20 pages in length setting out the reasons for which the recusal is sought.

(d) The defendants' amended summons filed 20 May 2024 be set down for hearing on 26 August 2024.

(e) On or before 4pm on 7 August 2024, the defendants' file and serve written submissions in support of their amended summons filed 20 May 2024.

(f) On or before 4pm on 19 August 2024, the first, third and fifth plaintiffs file and serve written submissions in opposition to the defendants' amended summons filed on 20 May 2024.

(g) The proceeding otherwise be mentioned on a date to be fixed.

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

[3] Kuksal v Victorian Legal Services Board (No 2) [2023] VSC 526, [17]-[24].

[4] Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[5] Kuksal v Victorian Legal Services Board (Recusal Application) [2023] VSC 722.

[6] Kuksal v Victorian Legal Services Board (Recusal, Stay and Costs) [2024] VSC 78.

[7] Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291, [24].

[8] Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay) [2024] VSC 367, [6].

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

[11] Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291, [24].

[12] Being sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic).

[13] [1970] HCA 8; [1970] 123 CLR 361.

[15] (2013) 252 CLR 38.

[16] [2018] HCA 53; (2018) 266 CLR 325.

[17] Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay) [2024] VSC 367, [6]. (Emphasis in original).

[18] [2023] VSC 495, [35].

[19] See, eg: Kuksal v Victorian Legal Services Board (No 2) [2023] VSC 526; Kuksal v Victorian Legal Services Board (Recusal, Stay and Costs) [2024] VSC 78.

[20] Section 36 of the Supreme Court Act 1986 (Vic) provides that: 'A proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief'.

[21] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.04(3).

[23] Civil Procedure Act 2010 (Vic) s 8.

[24] See, eg: (1) Kuksal v Victorian Legal Services Board (Recusal Application) [2023] VSC 722 and (2) Kuksal v Victorian Legal Services Board (Recusal, Stay and Costs) [2024] VSC 78 in this proceeding; and in related proceedings: (3) Victorian Legal Services Board v Kuksal & Ors (Recusal Applications) [2022] VSC 648, (before Forbes J), (4) Victorian Legal Services Board v Kuksal (Recusal Application) (No 2) [2023] VSC 698, (5) Victorian Legal Services Board v Kuksal (Recusal and Subpoenas) [2024] VSC 291, and (6) Victorian Legal Services Board v Kuksal (Actual Bias, Protective Costs and Stay) [2024] VSC 367. Before Ginnane J: (7) Kuksal v Mioch (Reopening and Recusal Applications) [2024] VSC 252, (8) Kuksal v State of Victoria [2024] VSC 253, and see also (9) Kuksal v State of Victoria [2023] VSC 438 where apprehended bias was argued. This is not a complete list because it does not include recusal applications made to me in proceedings in which pseudonyms were used, or recusal applications that have been made and dismissed for reasons given orally.