Plaintiffs v Defendants

1 People Shop Pty Ltd carried on a legal practice under the name Erudite Legal.[1] Mr Shivesh Kuksal owns and has owned, directly or indirectly, the shares in People Shop Pty Ltd. Ms Lulu Xu has been a director of People Shop Pty Ltd and is its company secretary. Mr Peter Ansell is a lawyer associated with People Shop Pty Ltd and since 18 October 2022 has been its sole director. The Victorian Legal Services Board ('the Board') took action under the Uniform Law[2] against People Shop Pty Ltd by appointing Mr Damian Neylon as auditor and then Mr Gordon Cooper as investigator and then Mr Howard Rapke as external manager to the practice.

2 By an originating motion filed on 29 September 2022 headed 'Originating Motion for Judicial Review', Mr Kuksal, Ms Maria Di Gregorio, Ms Xu, People Shop Pty Ltd and Mr Ansell (named in the originating motion as the first to fifth plaintiffs respectively) seek extensive relief against the Board, Mr Neylon, Mr Cooper and Mr Rapke (named in the origination motion as the first to fourth defendants respectively). Ms Di Gregorio has since discontinued her claim. When I hereafter refer to the plaintiffs, I do not include a reference to her. My reference to the plaintiffs otherwise includes People Shop Pty Ltd, for convenience, but is not intended to amount to any grant of a dispensation from the requirement that People Shop Pty Ltd take step by a solicitor,[3] or to validate any step taken or purported to have been taken by it other than by a solicitor. On 3 November 2022, the plaintiffs filed a further amended summons ('the plaintiffs' summons') that added to the relief that the plaintiffs seek.[4]

3 On 2 November 2022, the defendants filed a summons by which they sought that the plaintiffs' claims be struck out or stayed or summarily dismissed. The defendants amended that summons on 20 May 2024. These reasons concern the hearing of that application.

4 As noted above, the plaintiffs commenced this proceeding on 29 September 2022.[5] On 9 November 2022, they were ordered by Judicial Registrar Keith 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 the plaintiffs' summons. Those paragraphs sought the following relief (emphasis in original):

1.1 Mr Damian Neylon to investigate whether Mr Allan McGregor was fulfilling his responsibilities pursuant to section 34 of the Uniform Law as [People Shop Pty Ltd]'s Principal Solicitor [Neylon Appointment];

1.2 Mr Howard Rapke as [People Shop Pty Ltd]'s External Manager [Rapke Appointment]; and

1.3 Mr Gordon Cooper [Gordon Cooper Appointment] to investigate any civil penalty contraventions in connection with [People Shop Pty Ltd]

Were effected for an improper purpose and were nullities at law.

1. Determine and declare that even if Mr Neylon had been lawfully appointed to investigate whether Mr McGregor was fulfilling his responsibilities pursuant to section 34 of the Uniform Law, his appointment would have reached its natural conclusion on 25 November 2021 when he had concluded in his First Interim Compliance Audit Report [FICAR] that:

'I am concerned about Mr McGregor's capacity to hold a practicing certificate. I recommend that a medical report as to Mr McGregor's cognitive functioning be obtained to assess whether he should continue to hold a practising certificate'.

1. Determine and declare that even if Mr Neylon had identified legitimate issues that would have given the Victorian Legal Services Board [LSB] reasonable grounds to commence further investigative procedures against [People Shop Pty Ltd] or one of its solicitors or lay associates, it would have been necessary for a fresh appointment of an external intervener to take place to investigate the issues under an instrument of delegation that clarified that their appointment had been effected to investigate those specific issues.

5 There was then a delay in the proceeding due to an appeal that the plaintiffs brought against other orders made by Keith JR. That appeal was unsuccessful.[6] In the course of that appeal's hearing, on 17 August 2023 the plaintiffs indicated that they could file the balance of their material within a day.[7] Following some further argument in relation to costs and whether the Court had the power to impose limits on the length of affidavits, on 7 September 2023 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.[8] Orders were also made for the exchange of written submissions. The determination of those paragraphs was set down for hearing on 5 December 2023, along with the strike-out summons filed by the defendants described in para 3 above.

6 The hearing of these two summonses did not proceed on 5 December 2023. 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 do so. On 4 December 2023, the plaintiffs filed a summons in which they sought orders that they be released from Harman undertakings associated with documentation obtained by them in the course of another hearing,[9] leave to amend their originating motion, and my recusal. This summons was argued on 5 December 2023. On 11 December 2023, I dismissed the applications made in the summons.[10]

7 The proceeding was then listed for mention, and for the determination of the costs of the plaintiffs' 4 December 2023 summons, on 29 February 2024. The plaintiffs did not file material in advance of this hearing despite being ordered to do so. They made that day another application that I recuse myself and sought a stay of the costs determination. Those applications were made orally and without notice. On 8 March 2024, I dismissed those applications, ordered costs against the plaintiffs, and ordered the parties to provide before 15 March 2024 their proposed forms 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'. I published reasons the same day.[11] The defendants provided a proposed form of order. The plaintiffs did not provide a proposed form of order.

8 The proceeding was brought back for mention on 17 May 2024. The plaintiffs made another application that I recuse myself. 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 substantially in the form of a draft dated 29 February 2024 previously provided to my chambers and circulated to the other parties, with the date for production being 10 July 2024, and noted that the giving of this leave was without prejudice to the addressee's right, should it wish to do so, to apply to have it set aside. I denied the plaintiffs leave to file another subpoena, addressed to the Chief Commissioner of Police, and gave oral reasons for doing so. I gave the defendants leave to file and serve an amended summons, which was, as noted in para 3 above, then filed on 20 May 2024, and listed the matter for further mention on 10 July 2024.

9 The plaintiffs did not file and serve a subpoena addressed to the Victorian Legal Services Commissioner. No explanation was given for their failure to do so prior to the 10 July 2024 mention. At the 10 July 2024 mention, the plaintiffs applied, orally, for an order that I recuse myself. After hearing argument, on 18 July 2024 I published reasons,[12] and made orders that:

(b) the first, third and fifth plaintiffs have leave to file and serve a subpoena on the Chief Commissioner of Police in a limited form; and

(c) that any further applications for recusal be made on notice and with the plaintiffs first serving written submissions no less than 3 working days prior to the mention or hearing setting out the reasons for which the recusal is sought.[13]

(a) ordered the defendants to file and serve written submissions in support of their 20 May 2024 summons on or before 7 August 2024;

(b) ordered Mr Kuksal, Ms Xu and Mr Ansell to file and serve submissions in opposition to the Board's 20 May 2024 summons on or before 19 August 2024; and

(c) set down the defendants' 20 May 2024 summons for hearing on 26 August 2024.

11 On 23 August 2024, one business day prior to the hearing of the defendants' summons, the plaintiffs sought leave to bring a recusal application without first serving written submissions at least three working days prior to that hearing and therefore in contravention of the above orders. That day, I ordered that any application for recusal by filed and served by 4pm on 23 August 2024, noting in the 'Other Matters' section of those orders that the three working days requirement was otherwise still in force for any future recusal applications.

12 Neither Mr Kuksal, Ms Xu or Mr Ansell filed a written submission in accordance with my 18 July 2024 orders, or a written application for my recusal.[14]

B.2 26 and 27 August 2024 - the first and second days of hearing

13 On 26 August 2024, the defendants' 20 May 2024 summons came on for hearing. Mr Kuksal appeared. Ms Xu and Mr Ansell, I was told, had symptoms consistent with their having COVID-19. Mr Kuksal applied, orally, for an order that I recuse myself. The argument took up most of the day.

14 On 27 August 2024, Mr Kuksal and Ms Xu appeared remotely. Mr Ansell did not initially appear. Mr Kuksal told me that he had that morning developed symptoms consistent with his having COVID-19 and so was isolating. There was some trouble with the visual link but a good audio link was able to be established with Mr Kuksal and Ms Xu. Mr Ansell also joined the audio link. I dismissed the application for recusal, reserved the costs of 26 August 2024, and published reasons.[15] Mr Kuksal and Ms Xu then applied for an adjournment. I took Mr Ansell to be joining in that application. I indicated that, in order to prevent the day being wasted, I would permit the defendants to present their argument that day but would not require Mr Kuksal, Ms Xu or Mr Ansell to respond that day. The defendants presented their argument. I ordered that Mr Kuksal, Ms Xu and Mr Ansell file and serve a written submission by 4pm on 11 September 2024, and adjourned the hearing of the defendants' strike-out summons to 16 September 2024. Mr Kuksal, Ms Xu and Mr Ansell were provided with a transcript of the 27 August 2024 proceeding.

15 On 12 September 2024, I varied those orders to require that Mr Kuksal, Ms Xu and Mr Ansell file and serve a written submission by 4pm on 16 September 2024, and listed the further hearing of the Board's 20 May 2024 summons to 1 October 2024.

16 Neither Mr Kuksal, Ms Xu nor Mr Ansell filed a written submission prior to the matter being called on 1 October 2024. No proper explanation was given for their failure to do so.

17 On 1 October 2024, the Court reconvened for the further hearing of the defendants' summons. Mr Kuksal, Ms Xu and Mr Ansell appeared in person. Mr Kuksal sought to make an oral application that I recuse myself. Ms Xu and Mr Ansell confirmed that they joined in the proposed application.

18 As noted above, on 18 July 2024 I had ordered that:

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.

19 No proper reason was given for why this order had not been complied with. I indicated to Mr Kuksal that I would not then hear an oral application for recusal. I directed that any application for recusal be made by written submission filed and served by 4pm on 2 October 2024, and advised that I would proceed to hear the plaintiffs' submissions in opposition to the defendants' application in the meantime. I also advised that I would not determine the defendants' application until first considering any recusal application.

20 Later in the day, Ms Xu sought further time to present the recusal application in writing. I did not grant further time. The fact that the plaintiffs had sought to address oral argument in support of a recusal application carries with it the clear implication that the application was then ready to be presented. Further, the plaintiffs all knew, and had known since July, that any recusal application was required to be made in writing and provided three days prior to a hearing. In those circumstances, there was no reason not to require that the submission be reduced to writing in the time frame identified.

B.3.2 Mr Kuksal's waiver of his right to make submissions and his removal from the Court

21 Mr Kuksal did not accept that it was legitimate for me not immediately to hear his oral application for recusal. When I invited him to present his submissions in opposition to the defendants' summons, he persisted in presenting oral argument only in support of a recusal application. I repeated to him that I would not then entertain submissions in support of a recusal application and that this was his opportunity to present oral submissions in opposition to the defendants' summons. I told him that if he persisted in presenting submissions in support of a recusal application instead of presenting submissions in opposition to the defendants' summons, in defiance of my directions, then I would conclude that he had waived his right to present submissions in opposition to the defendants' summons. Mr Kuksal continued to present oral submissions in support of a recusal application. I informed Mr Kuksal of a time limit and that if by the expiration of that time limit he had not started to address the defendants' summons, then I would treat him as having waived his right to make submissions in opposition to the defendants' summons and would adjourn the Court without further notice and then reconvene to hear Ms Xu.

22 This happened. Mr Kuksal persisted in attempting to present argument directed at my recusal. He defied my directions that he sit down and let Ms Xu present her submissions. I warned him that if he did not do so, then I would have him removed from the courtroom. He ignored that warning. The proceeding could not continue in an orderly manner for so long as Mr Kuksal refused to sit down and let others speak. Accordingly, I had Mr Kuksal removed from the courtroom. I informed Mr Kuksal, as was the case, that a room would be made available in the court precinct from which he could observe the Court proceedings remotely. My chambers additionally provided all parties with an audiovisual link by which they could participate in the hearing remotely. Mr Kuksal informed me that he would not take up that opportunity.

23 Ms Xu then made oral submissions for most of the balance of the day. Shortly after lunch, a written submission was circulated by Mr Ansell that purported to be a submission prepared by People Shop Pty Ltd on behalf of all the plaintiffs. I indicated that I would receive the written submission as a submission made on behalf of Mr Kuksal, Ms Xu and Mr Ansell but not on behalf of People Shop Pty Ltd.[16] The submission was filed at 2.30pm. Mr Ansell made some oral submissions after Ms Xu had completed hers. By the time Mr Ansell had finished it was late in the day. Counsel for the defendants asked for leave to put his reply submissions in writing. Ordinarily, where submissions have been exchanged in advance of a hearing, any reply submissions would be made orally. However in this case, I granted the defendants leave to put their reply submissions in writing because, contrary to my orders, the plaintiffs had not filed a written submission in advance and so the first time that the defendants were appraised of the plaintiffs' submissions was in the course of the oral hearing. On 15 October 2024, the defendants filed a reply submission.

C. The form of the originating motion and summons

24 The plaintiffs' originating motion is headed 'Originating Motion for Judicial Review'. A proceeding for judicial review is governed by Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. By r 56.01(2), it is to be commenced by filing an originating motion in Form G. Consistently with this, the plaintiffs' originating motion is said to be in Form G. By r 5.05(a), any originating motion must state the relief or remedy sought and the Act, if any, under which the claim is made, and by r 56.01(4) an originating motion for judicial review must also state the grounds upon which the relief or remedy is sought.

25 The plaintiffs' originating motion breaks its 'claims' into four categories. Under the heading 'I. The Plaintiffs Claim', are subheadings 'A. Judicial Review and Declaratory Relief', 'B. Equitable Relief', 'C. Judicial Review' and 'D. Costs'.

26 Under the subheading 'A. Judicial Review and Declaratory Relief', the plaintiffs seek declarations that are broken into thirteen categories. There are many tendentious defined terms that pick up and build on each other. The below is a summary:

(a) First, that various decisions of the Board (and its delegates or agents) were made pursuant to jurisdictional errors or errors of law and are thus nullities. The 'decisions' referred to are:

(i) the appointment of Mr Neylon to conduct a compliance audit of People Shop Pty Ltd;

(ii) Mr Neylon's publication of his first, second and third interim audit reports;

(iii) the Board's decision to issue Management Systems Directions;

(iv) the appointments of Mr Cooper as external investigator and Mr Rapke as external manager; and

(v) the decision 'to forcibly enter [People Shop Pty Ltd's] business premises' to seize its documents and assets, instruct the police to remove the director and employee from the premises, and shut down [its] operations', and the Board's decision to 'conduct an unlawful raid';

(b) Second, that other conduct constituted 'malicious abuses of statutory authority', attempts 'to pervert the course of justice', and 'brought the legal profession into disrepute'. That conduct was:

(i) the Board's decision to 'invite' a television crew from Nine Network Australia Pty Ltd to record videos and capture the entry and seizure of documents referred to above;

(ii) the Board's decision to 'authorise' the television crew to record videos capturing the content of case files and to steal the People Shop Pty Ltd's intellectual property and abuse confidential information; and

(iii) the Board's decision to record an interview in which Mr Rapke 'disparaged' People Shop Pty Ltd and its clients and directors for 'for the viewership of the entire nation';

(c) Third, that Mr Rapke's decisions were not authorised by s 336 of the Uniform Law.[17] The decisions referred to are his decisions:

(i) to 'abandon' the People Shop Pty Ltd's clients without a proper basis and 'in dereliction of his duty';

(ii) to make misleading representations, or communicate confidential and privileged matters to the courts without copying in the affected client;

(iii) to release privileged and confidential information to third parties;

(iv) to communicate with 'the opposing parties' in relation to contentious matters involving Mr Kuksal or others; and

(v) to cease People Shop Pty Ltd's operations immediately after his appointment and to forbid its employees from carrying out their work;

(d) Fourth, that the Board's 'public endorsement of the fraudulent and inflammatory statements concerning' the plaintiffs was 'unlawful, malicious and betrayed a contumelious disregard' for the plaintiffs' rights;

(e) Fifth, that various steps or decisions - effectively all that has come before - were motivated at least in part by a desire to vilify Mr Kuksal publicly, prevent him from commencing proceedings, and 'to achieve a scenario that would allow them to permanently disqualify Mr Kuksal from being involved in the management' of an incorporated legal practice;

(f) Sixth, that conduct in effecting various steps or decisions - effectively all that has come before - was 'incompatible with the legal principles concerning the operation of corporations as set out in the Corporations Act 2001 (Cth)';

(g) Seventh, that conduct 'in relation to' various matters - effectively all that has come before - constituted 'perversions or attempted perversions in the course of justice', were 'in contempt of court' and brought the legal profession and the administration of justice into disrepute;

(h) Eighth, that the Board's conduct in authorising the compliance audit and 'victimising the Plaintiffs for their non-cooperation' was a malicious abuse of statutory authority, a 'manifestation of contumelious disregard for the Plaintiffs' rights', and 'undertaken as part of a conspiracy to effect public mischief';

(i) Ninth, that the appointments of Mr Neylon, Mr Cooper and Mr Rapke were implemented 'as part of a conspiracy to effect public mischief' and to pervert the course of justice;

(j) Tenth, that the various alleged abuses previously referred to, 'contravened the foundational objectives' of the Board as laid down in s 30 of the Legal Profession Uniform Law Application Act 2014;

(k) Eleventh, that the Board's 'attempts to control [People Shop Pty Ltd's] operations' through Management Systems Directions was 'incompatible with the legal principles concerning the operation of the corporations as set out in the Corporations Act';

(l) Twelfth, that the Board's decision 'to compel the examination of Mr Ansell' and to express a preliminary view that it was likely to withhold the renewal of his practising certificate 'ostensibly to coerce him into breaching client legal privilege and his fiduciary obligations to Mr Kuksal and [People Shop Pty Ltd]', were 'instances of malicious abuse of statutory authority and may be categorised as threats of lawful acts'; and

(m) Thirteenth, that various conduct 'infringed the requirements of Ch III of the Commonwealth of Australia Constitution Act' and the 'principle of the rule of law as given effect by it'.

27 Then, under the subheading 'B. Equitable Relief', the originating motion seeks orders that the defendants 'immediately release' all of the plaintiffs' files, documents and intellectual property in their possession, 'promptly provide all the information concerning the Plaintiffs in their possession or accessible to them', indemnify the plaintiffs 'with respect to all liability arising out of the Defendants' improper conduct', provide 'restitution' and provide 'an account of profits'.

28 Then, under the subheading 'C. Judicial Review', the originating motion seeks, 'pursuant to Order 56 of the Court Rules':

(a) An order that the defendants promptly provide to the plaintiffs all the information in their possession or accessible to them concerning complaints made against the plaintiffs, all investigations, all reports and various other matters, and 'all interaction that the Defendants have had concerning the Plaintiffs with third parties, including among each other';

(b) An order that the Board 'undo the Cucchiara Promotion forthwith'. The 'Cucchiara Attack Promotion' is defined in the origination motion to be the Board's 'public endorsement of the fraudulent and inflammatory statements concerning Mr Kuksal, Ms Di Gregorio, Ms Xu, [People Shop Pty Ltd] and its related entities, tweeted by Mr Sam Cucchiara of A Current Affair, on 22 August 2022'; and

(c) An order that the Board renew the registration of Mr Ansell's practising certificate.

29 Then, under the subheading 'D. Costs', the plaintiffs seek their costs of the proceeding payable forthwith as a fixed sum.

30 Following the above in the plaintiffs' originating motion is Part II, headed 'The Grounds Relied Upon'. Part II is broken into 'A. Contravention of Statutory Provisions', 'B. Abuse of Statutory Authority' and 'C. Conspiracy to Violate the Plaintiffs' Rights'. Part 'A. Contravention of Statutory Provisions' refers to various provisions the plaintiffs say the defendants have contravened. These include the Legal Profession Uniform Law Application Act 2014 (Vic), the Uniform Law, the Corporations Act 2001 (Cth), the Privacy and Data Protection Act 2014 (Vic), the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW), the Public Administration Act 2004 (Vic), the Independent Broad-Based Anti-corruption Commission Act 2011 (Vic), the Judiciary Act 1903 (Cth), the Federal Court of Australia Act 1976 (Cth), the Civil Dispute Resolution Act 2011 (Cth), the Civil Procedure Act 2010 (Vic), the Australian Human Rights Commission Act 1986 (Cth), sch 2 of the International Covenant on Civil and Political Rights, the Surveillance Devices Act 1999 (Vic), the Criminal Code Act 1995 (Cth), the Freedom of Information Act 1982 (Vic), and the Australian Consumer Law.[18]

31 It is not necessary to summarise Parts 'B. Abuse of Statutory Authority' and 'C. Conspiracy to Violate the Plaintiffs' Rights', save to say that they contain an extensive array of conclusionary allegations of misconduct by the defendants.

32 Finally, the originating motion seeks an extension of time pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 to apply for judicial review of the Board's decisions in relation to the appointment of Mr Neylon on 9 November 2021, the publication of the audit reports, and the issuing of the Management Systems Directions on 10 May 2022. Rule 56.02(1) provides that a proceeding under Order 56 shall be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose. The plaintiffs' originating motion was filed on 29 September 2022. Rule 56.02(3) provides that the Court shall not extend the time fixed by paragraph (1) 'except in special circumstances'.

C.2 The plaintiffs' summons filed 3 November 2022

33 The plaintiffs' summons sets out another 29 or so (depending on how subparagraphs are counted) declarations or orders sought, underneath the introductory paragraph:

You are summoned to attend before the Court on the hearing of an application by the Plaintiffs, made pursuant to section 358 of the Legal Profession Uniform Law (Vic), section 1324 of the Corporations Act 2001 (Cth), the relevant statutory provisions set out in the first paragraph under "The Grounds Relied Upon" section of the Plaintiffs' Originating Motion, and under the law of equity, seeking that the Court...[19]

34 The first three paragraphs of the relief sought in the plaintiffs' summons have been set out in para 4 above. The remaining 26 paragraphs seek orders, determinations and declarations that (and this is not an exhaustive list):

(a) Section 370 of the Uniform Law not 'be abused';

(b) Certain parts of the Uniform Law do not apply to investigations into unqualified legal practice; there is no evidence that Mr Kuksal has engaged in unqualified legal practice;

(c) Certain requests for information and/or documents were not enforceable;

(d) It was 'not improper' for Mr Ansell to be hesitant to comply with the instructions of Mr Neylon and Mr Cooper;

(e) Mr Neylon had prejudged matters and was biased, motivated by an improper purpose, did not carry out his duties in good faith, and acted unreasonably;

(f) The Management Systems Directions were issued for an improper purpose;

(g) The defendants refrain from taking steps to interfere with the plaintiffs' court proceedings, provide the plaintiffs with information and documents, and be restrained from using certain information;

(h) Mr Rapke and the Board 'had functioned as a collective de facto managing director of People Shop Pty Ltd and had attracted their obligations and liabilities in respect of any prejudice directly or indirectly caused by their actions', and ought to remove publications from its website, retract a retweet, and issue an apology;

(i) The Court's Chief Executive Officer investigate the Boards 'improper and/or unlawful collusion and/or misguiding of the Court's Prothonotary' in relation to the acceptance of documents for filing;

(j) The Board cease any investigations into criminal conduct by Mr Kuksal;

(k) The Board renew Mr Ansell's practising certificate;

(l) The defendants cease interfering with People Shop Pty Ltd and restore the plaintiffs to their original positions;

(m) The Board was not entitled to taken into account certain matters when considering Mr Ansell's application for the renewal of his practising certificate;

(n) Mr Neylon's appointment was motivated by an improper purpose; and

(o) The defendants' conduct has been 'antithetical to the foundational objectives' of the Board, directed in part to vilify and harm Mr Kuksal, motivated in part to unlawfully restrain Mr Kuksal from exercising his legal rights, was aimed at, among other things, impeding the plaintiffs from successfully prosecuting their claims against the defendants and significantly driven by an objective of disqualifying Mr Kuksal from involvement in the operation of any law firm in Victoria and constituted 'a malicious abuse of authority'.

35 The summons also seeks leave to amend the originating motion to 'include any additional relief sought or grounds relied upon arising out of further developments in the matters underpinning the Proceeding,' and costs on the indemnity basis.

36 When an originating motion is filed seeking judicial review, a claimant is required to file a summons for directions.[20] With originating motions other than for judicial review, a party may not be able to obtain judgment other than by filing a summons. A party may also apply for interlocutory relief by summons. As the above indicates, the plaintiffs' summons is in a surprising form because it instead seems intended to add to the final relief sought in the proceeding. A summons in that form is irregular and not provided for in the Rules.[21] The proceeding has, to date, been managed on the basis that the plaintiffs are seeking final relief in accordance with their summons. In this respect, I note that both Keith JR and I made directions (before the hearing of the defendants' strike-out summons) that provided for paragraphs 1 to 3 of the plaintiffs' summons being listed for hearing first. Sensibly, the Board accepted that its application should proceed as if the relief sought in the plaintiffs' summons were part of the originating motion. I will proceed on that basis. To regularise that situation, I will also make an order that the originating motion filed 29 September 2022 be read as if the relief sought in the plaintiffs' summons filed 3 November 2022 was contained in that originating motion.[22]

37 I note that Ms Xu submitted that the summary dismissal application could not apply to the summons but could only apply to the originating motion. That submission was unhelpful; if the summons were not treated as a document setting out the final relief sought as if it were part of the originating motion, as the defendants were prepared to treat it, it would be liable to be struck out in any event on the grounds that a summons in that form is not authorised, for the reasons set out above, by the Supreme Court (General Civil Procedure) Rules 2015.

C.3 The plaintiffs' written submissions of 1 October 2024

38 In the course of Ms Xu's oral submissions (following Mr Kuksal's removal from the court room), an 8-page submission was filed 'on behalf of the plaintiffs' by Mr Ansell. The submission is divided into the below three headings:

(a) 'Preliminary matters', where the plaintiffs express the view that I have acted improperly for various reasons;

(b) 'Principles Governing the Determination of Summary Dismissal Applications', where the plaintiffs set out case extracts in support of 'the hopelessness of the defendants' application', and conclude that 'summary dismissal applications are not [sic] the appropriate medium to raise complicated questions which in themselves prove that the case involves consideration of various factors by the Court'.[23] The plaintiffs further submit that the defendants' application is itself an abuse of process; and

(c) 'The Availability of Declaratory Relief & Standing', where the plaintiffs assert that they have an 'unchallenged right to seek declaratory relief' pursuant to s 36 of the Supreme Court Act 1986 (Vic) 'even if no "consequential relief" is sought', set out a number of case extracts regarding declaratory relief and standing, and submit the plaintiffs have standing notwithstanding ss 3, 323 and 358 of the Uniform Law by virtue of 'the court's supervisory relief jurisdiction' per s 155 of the Uniform Law.

39 I do not accept the plaintiffs' submission that I have acted improperly. I accept that a claim should not be summarily dismissed other than in a very clear case. I otherwise address below the defendants' summary dismissal application including the issue of standing and the right to claim declaratory relief.

40 A proceeding or a claim in a proceeding may be stayed or summarily dismissed (that is, dismissed without going to trial) under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 or in the Court's inherent jurisdiction if it is 'scandalous, frivolous or vexatious' or is otherwise an abuse of process. A Court may also give summary judgment under s 63 of the Civil Procedure Act 2010 if satisfied that a claim, or part of a claim, has no real prospect of success.[24] An indorsement on an originating motion may be struck out under r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 or in the Court's inherent jurisdiction if it does not disclose a cause of action, is 'scandalous frivolous or vexatious', may prejudice or embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process. A proceeding is scandalous if it contains allegations made for the purpose only of abusing or injuring the opposite party and an indorsement is embarrassing where it places the opposite party in the position that he or she does not know what is alleged against him or her.[25]

41 The plaintiffs did not present any written submissions against the defendants' application with the exception of the written submission dated 1 October 2024, referred to in Part C.3 above.

42 The categories of abuse of process are not closed.[26] As the phrase itself indicates, an abuse of process occurs where 'the processes and procedures of the court' are 'converted into instruments of injustice or unfairness' or would otherwise 'bring the administration of justice into disrepute among right-thinking people'.[27] Relying on these principles, the defendants' application is that the originating motion (and the plaintiffs' summons) be struck out, stayed or summarily dismissed.

43 Notwithstanding some suggestions in their written submission to the contrary, the defendants accepted that their application was not for summary judgment in the sense that there was no evidence that could support the plaintiffs' case. That could not be determined without first analysing the extent to which the plaintiffs have evidence available. Their counsel accepted in oral argument that the defendants were relying on 'issues of form' rather than 'the merits'; they are relying on the nature of the relief sought and the manner in which the documents have been prepared as justification for the dismissal or strike out.

44 I will consider the defendants' application in the following order:

(a) First, I will consider the consequences of the fact that People Shop Pty Ltd has not engaged a solicitor to act for it (Part E below);

(b) Second, I will consider whether paragraphs 1 to 3 of the plaintiffs' summons should be struck out or stayed or summarily dismissed (Part F below). As noted above, the present directions provide for these paragraphs to be heard and determined first before the balance of the plaintiffs' claims;

(c) Third, I will consider the argument that the proceeding should be stayed because it is similar to other proceedings being brought (Part G below); and

(d) Fourth, I will consider the balance of the plaintiffs' originating motion and 3 November 2022 summons (Part H below).

E. People Shop Pty Ltd - a company that has not engaged a solicitor to act for it

45 Rule 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 provides that, save where otherwise provided, a corporation 'may not take any step in a proceeding save by a solicitor'. The originating motion was filed on 29 September 2022. At that time, People Shop Pty Ltd had an authorised principal and thus was entitled to engage in legal practice. Surprisingly, however, the originating motion was expressed to have been prepared by Mr Kuksal and filed on behalf of all the plaintiffs, rather than by People Shop Pty Ltd itself. Mr Kuksal is not a lawyer. As noted above, the plaintiffs' summons, by which the relief sought under consideration here was formulated, was filed on 3 November 2022. At that time, People Shop Pty Ltd did not have an authorised principal because, although Mr Ansell was a director, he did not have a practising certificate. Again, however, the summons was expressed to have been prepared by Mr Kuksal and filed on behalf of all of the plaintiffs.

46 It follows that the commencement of the proceeding by People Shop Pty Ltd and the filing of the plaintiffs' summons were irregular. Probably, looking at the matter with hindsight, neither the originating motion nor the summons should have been accepted for filing, but they were. A proceeding commenced by a company other than by a solicitor is not a nullity but is liable to be stayed until such time as a solicitor is appointed.[28] Neither Mr Kuksal nor Mr Ansell nor Ms Xu has ever suggested that People Shop Pty Ltd intends to engage a solicitor to act for it. The Court has a wide discretion in determining how to deal with such a situation.

47 To the extent that the proceeding is not otherwise struck out or dismissed in accordance with my reasons below, I will permanently stay the proceeding in so far as it is being pursued by People Shop Pty Ltd, but subject to People Shop Pty Ltd's right to apply for the stay to be lifted in the event that it engages a solicitor to act for it in this litigation. Whether any application to lift the stay on that ground succeeds may depend on when, if ever, such an application is made. Equally, I am not precluding the defendants from, at some later point, if they wish to do so, applying to have the proceeding insofar as it is brought by People Shop Pty Ltd being dismissed for want of prosecution.

48 Where I hereafter refer to the plaintiffs, I am, unless the context indicates otherwise, referring to Mr Kuksal, Mr Ansell and Ms Xu.

F. Paragraphs 1 to 3 of the plaintiffs' summons

49 I have set out in para 4 above the first three paragraphs of the plaintiffs' summons. I set them out again for convenience:

1.1 Mr Damian Neylon to investigate whether Mr Allan McGregor was fulfilling his responsibilities pursuant to section 34 of the Uniform Law as [People Shop Pty Ltd]'s Principal Solicitor [Neylon Appointment];

1.2 Mr Howard Rapke as [People Shop Pty Ltd]'s External Manager [Rapke Appointment]; and

1.3 Mr Gordon Cooper [Gordon Cooper Appointment] to investigate any civil penalty contraventions in connection with [People Shop Pty Ltd]

Were effected for an improper purpose and were nullities at law.

1. Determine and declare that even if Mr Neylon had been lawfully appointed to investigate whether Mr McGregor was fulfilling his responsibilities pursuant to section 34 of the Uniform Law, his appointment would have reached its natural conclusion on 25 November 2021 when he had concluded in his First Interim Compliance Audit Report [FICAR] that:

'I am concerned about Mr McGregor's capacity to hold a practicing certificate. I recommend that a medical report as to Mr McGregor's cognitive functioning be obtained to assess whether he should continue to hold a practising certificate'.

1. Determine and declare that even if Mr Neylon had identified legitimate issues that would have given the Victorian Legal Services Board [LSB] reasonable grounds to commence further investigative procedures against [People Shop Pty Ltd]or one of its solicitors or lay associates, it would have been necessary for a fresh appointment of an external intervener to take place to investigate the issues under an instrument of delegation that clarified that their appointment had been effected to investigate those specific issues.

50 Paragraph 1 is in an unexceptional form commonly seen in an application for judicial review. The decisions by the Board to appoint persons to People Shop Pty Ltd's business were decisions that are amenable to judicial review. Paragraphs 2 and 3 seek declarations based on assertions that, at law, Mr Neylon's appointment in fact terminated at a certain point and that a 'fresh' appointment was then required. There is nothing legally embarrassing in the manner in which the application for this relief is formulated. The defendants contend that the plaintiffs should not be permitted to prosecute these claims because:

(a) the natural person plaintiffs (that is, Mr Kuksal, Ms Xu and Mr Ansell) have no standing; and

(b) any declaration would have no utility, or the relief sought is now purely hypothetical, because each of the appointments have now ceased in any event.

51 There is some overlap between these two arguments because the extent of a person's interest in having conduct declared unlawful affects both the question of their standing and the question of whether the Court should entertain the claim even if the conduct is now entirely in the past. I will, nonetheless, consider them separately.

52 The defendants contend that Mr Kuksal, Ms Xu and Mr Ansell lack standing to bring these proceedings because they concern appointments made to People Shop Pty Ltd.

53 Mr Kuksal has always been the ultimate beneficial owner of the shares in People Shop Pty Ltd. Ms Xu was a director of People Shop Pty Ltd at the time of Mr Neylon's appointment and is currently the secretary of People Shop Pty Ltd. The appointments of Mr Neylon, Mr Rapke and Mr Cooper substantially affected People Shop Pty Ltd's affairs. Mr Ansell became a director of People Shop Pty Ltd on 10 June 2022 which was during the time over which Mr Neylon was conducting his audit. The Board's letter dated 3 December 2021 by which it advised that it had appointed Mr Neylon to perform an audit was sent including to Ms Xu and raised the prospect that Ms Xu might be liable on the grounds that, in breach of the Uniform Law, People Shop Pty Ltd did not have an 'authorised principal' for a period of greater than seven days. Mr Neylon asserted in his reports that neither Mr Neylon nor Ms Xu cooperated with his audit. Following the appointment of Mr Rapke, the Board commenced a proceeding in this Court in which it sought, and obtained, interlocutory injunctions against each of Mr Kuksal, Mr Ansell and Mr Xu based, among other things, on allegations that they were obstructing Mr Rapke or wrongly representing that they were 'undertaking or managing the affairs of the Law Practice'.[29]

54 In my view, the associations of Mr Kuksal, Mr Ansell and Ms Xu with People Shop Pty Ltd give them a 'special interest' in its affairs above those of members of the public or mere busybodies.[30] Accordingly, I am satisfied that Mr Kuksal, Mr Ansell and Ms Xu have standing to seek judicial review of the appointments of Mr Neylon, Mr Rapke and Mr Cooper; or, more accurately, I am not persuaded that they clearly do not have standing such that a lack of standing is a reason summarily to dismiss this aspect of their claim. The same applies in relation to the relief sought in paragraphs 2 and 3.

55 A court has a discretion not to make a declaration. Although declaratory relief 'must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions' and will not be granted if it will 'produce no foreseeable consequences for the parties',[31] it is accepted that it may be granted if the person seeking relief has 'a real interest' in obtaining that relief.[32]

56 The appointments to People Shop Pty Ltd have arguably had an effect on Mr Kuksal's reputation and Mr Ansell's reputation, and probably also Ms Xu's, in particular because the television media filmed and broadcast Mr Rapke's taking over of the affairs of People Shop Pty Ltd and did so in a way that arguably implied that People Shop Pty Ltd was being operated by dishonest or incompetent people. If the Board as regulator of the legal profession appointed persons to People Shop Pty Ltd for an improper purpose, then there is, at least arguably, a public interest, and a legitimate private interest held by Mr Kuksal, Mr Ansell and Ms Xu, in obtaining a declaration to that effect.[33] For that reason, the application for the relief sought in paragraph 1 of the summons is not an abuse of process and will not be summarily dismissed or struck out.[34]

57 The situation is different with paragraphs 2 and 3. Those paragraphs raise legal issues that, I am satisfied, concern matters that are in the past and do not have the same effect on the plaintiffs' reputations. There is no utility in have those questions answered. In those circumstances, there is no real prospect that the Court would make such declarations, and the bringing of a proceeding seeking to have those issues litigated is vexatious and an abuse of the Court's process. Accordingly, I will strike out paragraphs 2 and 3 of the plaintiffs' summons. In doing so, I rely on the Court's inherent jurisdiction and the powers contained in r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015.

F.4 Need to identify facts from which the improper purpose may be inferred

58 Unless a defendant acknowledges wrongdoing, a finding of an improper purpose, in a case like this, must be based on inferences drawn from established primary facts. Forensically, the task for the person asserting an improper purpose is to prove facts from which that inference as to a person's state of mind may be drawn, at least in the absence of a proper explanation. The plaintiffs' originating motion does not do this. Instead, as the discussion below will reveal, it makes a series of assertions of misconduct. Where fraud is being alleged, which is in substance the case here, a defendant is entitled to precise particularisation of the facts that are being relied upon to establish that fraud;[35] it is not sufficient merely to assert conclusions, such as that someone had an improper purpose, and exclude the material facts required to arrive at those conclusions.[36] Although pleadings have not been ordered in this case, I consider that the same approach should be taken that would be taken if pleading had been ordered. Subject to hearing from the parties, I propose to order the plaintiffs to file a document that clearly identifies each fact that they contend gives rise to an inference of improper purpose. There should not be a problem providing such a document because the allegations should not have been made without a proper basis.[37] There may then be an opportunity to determine, if need be, whether, if those facts were proved, a finding of improper purpose might be made.

59 The defendants pointed out that the allegations made in this proceeding, speaking broadly, of a conspiracy between the Board and others to cause the plaintiffs harm are also made, or at least overlap with allegations made by the plaintiffs in other proceedings in the Court. They contend that this makes this proceeding vexatious and an abuse of process and justifies its summary dismissal. I do not accept that submission. The parties are not identical. More fundamentally, it is difficult to see why this proceeding should be dismissed for that reason rather than one of the other proceedings.

H. The balance of the plaintiffs' originating motion and summons

60 In my view, the balance of the plaintiffs' originating motion (reading it with the summons), save for the application for an extension of time,[38] should be struck out for the following reasons.

61 The Board appointed Mr Neylon in November 2021, Mr Cooper in August 2022 and Mr Rapke in August 2022. The conduct of which the plaintiffs complain took place in 2021 and 2022. Neither Mr Neylon, Mr Cooper nor Mr Rapke still hold their appointed positions.

62 I accept that the Court has an essentially unfettered power to make declarations and s 36 of the Supreme Court Act 1986 provides that a proceeding is not an abuse of process simply because it only seeks declaratory relief.[39] That is not to say, however, that a proceeding that seeks declaratory relief may not be an abuse of process. I have set out above why I consider the Court may be asked to determine, in a proceeding for judicial review, whether the Board's appointments were made for a proper purpose. The same does not apply to the assertions that various steps or actions subsequently taken by Mr Neylon, Mr Cooper and Mr Rapke, or indeed the Board, were taken for an improper purpose. In my assessment, the balance of the proceeding should be struck out as an abuse of process.

63 A court proceeding is a method by which persons seek relief to vindicate rights that are said to have been breached. The relief sought may be a declaration if it has some tangible purpose, even if only, as noted above, of vindicating someone's reputation.

64 The way the originating motion and summons have been formulated indicates that the plaintiffs are, however, in effect, seeking some form of judicial inquiry into all or nearly all aspects of their dealings with the Board and those whom the Board appointed, rather than seeking to have determined an identified legal controversy.[40] Courts exists to resolve legal disputes and to ensure that statutory authorities do not exceed their jurisdiction, but do not operate as boards of inquiry designed to provide a forum where persons may ventilate all their concerns about the conduct of others. There are no tangible legal rights to be determined or any valid practical purpose in the Court embarking on an inquiry into this past conduct for the purpose of determining whether to grant declaratory relief. Accordingly, the balance of the proceeding, if permitted to proceed as formulated, would be an improper use of the litigation process and thus would bring the administration of justice into disrepute.

65 This is so even if, or perhaps particularly if, the intention is to use any declarations made to obtain a benefit in some other forum. At a mention in this proceeding on 10 July 2024, I asked Mr Kuksal what purpose the making of a declaration would serve. There was then the following exchange:

MR KUKSAL: 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.

HIS HONOUR: In separate proceedings to be issued?

MR KUKSAL: In separate proceedings or further addition to this proceeding or whatever. That's up to us. Whatever the law allows us to do. But we have a right to demand that the court address this matter.

66 Bringing a proceeding in which a declaration is sought so that the declaration or findings made may then be relied on, directly or as some form of issue estoppel, to obtain, elsewhere, some secondary relief may be an abuse of the Court's process and a court is entitled to refuse to make declarations in such circumstances.[41] The same applies if the declaration is sought to 'arm' a plaintiff in 'political or other negotiations'.[42] A declaration ordinarily ought not to be made if its flow-on consequences are not known or agreed on by the parties,[43] and 'a suit for a declaration should not be in substance the determination of a question anterior to a further suit for substantive relief'.[44] This is because, as well as absorbing court time, it oppresses a defendant to put them in a position where they do not know what is really at stake in the proceeding and for what purpose are they defending it. If, for example, a person intends to seek damages for a breach of duty or some other form of alleged misbehaviour on the part of another, then that person should commence a proceeding for damages by filing a writ and statement of claim that sets out the material facts alleged (which must constitute a cause of action) and the remedy sought. The respondent to that claim then knows where they stand. Accordingly, if, as Mr Kuksal indicated, the declarations are sought in this proceeding with a view then to using them as some form of issue estoppel in subsequent proceedings, this proceeding would be an abuse of process also for that reason.

67 For these reasons, the balance of the claims should be struck because they are an abuse of process and, relatedly, there is no real prospect in the circumstances that a court would make the declarations sought. As above, I rely on the Court's inherent jurisdiction and the powers contained in r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015.

H.2 The appropriateness of some of the claims being brought by originating motion

68 In forming the above views, I have not overlooked that the plaintiffs' originating motion, under the heading 'B. Equitable Relief', seeks orders that the defendants 'indemnify the Plaintiffs with respect to all liability arising out of the Defendant's improper conduct' and 'restitution' and 'an account of profits'.

69 Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 provides that a proceeding for judicial review be commenced by filing an originating motion.[45] Otherwise, however, and subject to some exceptions,[46] the Rules provide that proceeding should be brought by writ unless 'it is unlikely that there will be any substantial dispute of fact'.[47]

70 Judicial review is the name given to the process whereby the Court ensures that inferior courts and tribunals established under statute, and other statutory authorities, act within jurisdiction and in accordance with law. Order 56 is expressed to apply to applications for a 'relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto'. It is accepted that a court hearing an application for judicial review may also give declaratory relief directed at, or associated with, its findings made in an application for judicial review. It is clear, however, that the application for an indemnity or restitution or an account of profits is not an application for judicial review. Further, any determination of the application for indemnity, restitution and an account of profits would involve substantial factual dispute. Accordingly, those claims should not have been brought in this proceeding, commenced as it is by originating motion. I add, also, that the making of such claims in an proceeding commenced by originating motion has obscured the basis of any claim for indemnity, restitution or an account of profits. The facts underlying any entitlement to that relief are not set out. It must be recalled that Mr Neylon, Mr Cooper and Mr Rapke were appointed to People Shop Pty Ltd, and, because People Shop Pty Ltd has not appointed a solicitor to act for it, People Shop Pty Ltd is not able to prosecute any claim it has to indemnity, restitution or an account of profits. The originating motion, even when read with the summons, does not identify the basis for which any relief of that sort may be claimed, particularly by Mr Kuksal, Ms Xu or Mr Ansell. These are further and independent reasons for which 'Part B Equitable Relief' should be struck out.

71 The same applies to the originating motion and summons in so far as they present other claims that are not claim for judicial review and are claims that involve contested factual issues. It is, probably, at least arguable that actions taken by Mr Neylon, Mr Cooper and Mr Rapke in which they exercise powers given to them by statute could (in the right circumstances) be capable of being the subject of an application for judicial review. Even so, I am satisfied that applications for the following orders are also not applications that are suitably brought, if at all, by way of originating motion:

(a) the Court order the defendants provide the plaintiffs with information or documents;

(b) the Court order the defendants 'undo' certain conduct;

(c) the Court order the defendants renew Mr Ansell's practising certificate;

(d) the Court declare that sections of legislation 'may not be abused' or do or do not apply in certain ways;

(e) the Court declare that there is or is not evidence of a certain matter;

(f) the Court declare that conduct on the part of the plaintiffs was justified;

(g) the Court restrain the defendants from taking certain steps;

(h) the Court order the defendants to apologise or to remove material from websites;

(i) the Court order its CEO to investigate certain matters; and

(j) the Court order the Board to cease pursuing any investigations;

72 That is another reason for which those paragraphs should be struck out.

73 In the circumstances, I am satisfied that allowing this proceeding to go ahead, save to the limited extent referred to in Part F above, would bring the administration of justice into disrepute in the minds of right thinking people, and that, accordingly, it should be struck out. In those circumstances, it is not necessary for me to determine the extent to which various paragraphs would be liable to be struck out also on the grounds that they are embarrassing in the legal sense because they are insufficiently clear to allow the defendants to understand the case against them.

74 Finally, I note that there is an overlap between paragraph 1 of the originating motion and paragraph 1 of the plaintiffs' summons. I treat paragraph 1 of the summons as operating effectively in substitution for paragraph 1 of the originating motion.

75 The parties were informed in the early afternoon on 26 November 2024 that I would deliver my ruling in this matter on 27 November 2024 at 10am. At 8.11am on 27 November 2024, Ms Xu emailed my chambers and said that she had 'work scheduled' that morning and was 'unable to make alternative arrangements at such short notice' and that she had 'spoken with Mr Ansell and Mr Kuksal and they are in the same position'. She sought to have the hearing adjourned. The email also attached an affidavit, prepared for another proceeding involving her, Mr Ansell and Mr Kuksal and the State of Victoria and others, and said that she foreshadowed a recusal application on the basis of the matters set out in the affidavit. The affidavit deposed to events that had taken place in that proceeding before a different judge and suggested, in broad terms, that that judge had acted improperly in a similar way in which it had been alleged that I had acted improperly. There is nothing in it that establishes a basis for my recusal.

76 I informed the parties that I would not adjourn the delivery of my ruling, but would deliver my reasons and make the orders necessarily consequential upon those reasons at 10am on 27 November 2024 as scheduled, and would otherwise list the matter for mention at 2pm on 28 November 2024 to hear submissions about what further orders should then be made.

(a) The originating motion filed 29 September 2022 be read as if the relief sought in the further amended summons filed 3 November 2022 were contained in that originating motion;

(b) The proceeding in so far as it is brought by the fourth plaintiff, People Shop Pty Ltd, be permanently stayed, subject to any application made by the fourth plaintiff to lift the stay in the event that it engages a solicitor to act for it;

(c) The originating motion (including the applications for order contained in the further amended summons filed 3 November 2022) be struck out, save for:

(i) paragraph 1 of the plaintiffs' further amended summons; and

(ii) the (unnumbered) application on page 13 of the plaintiffs' originating motion for an extension of time pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015.

(d) The proceeding be listed for mention on 28 November 2024 at 2.00pm to consider:

(i) whether the first, third and fifth plaintiffs ought to be ordered to file and serve a document identifying the improper purpose for which they contend the first defendant made the appointments it did and each primary fact from which they contend that improper purpose may be inferred; and

(i) what orders should be made for the determination of costs.

[1] It also traded, on occasion, as New Edge Law.

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

[4] The plaintiffs had filed the original version of their summons on 26 October 2022, and an amended summons on 2 November 2022.

[5] I put to one side, for the moment, whether People Shop Pty Ltd was able validly to commence or, if so, thereafter to take steps in this proceeding in the event that it was not represented by a solicitors, as to which see Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 1.17. I return to this issue in Part E below.

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

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

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

[10] Kuksal v Victorian Legal services Board (Recusal Application) [2023] VSC 722.

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

[12] Kuksal v Victorian Legal Services Board (Recusal, Summons and Subpoenas) [2024] VSC 418.

[13] As set out in my ruling following the mention, the plaintiffs also advised they would serve notices on the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission pursuant to s 35 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

[14] Ms Xu filed an affidavit which I have previously addressed in Kuksal v Victorian Legal Services Board (Further Recusal) [2024] VSC 508 at [3], [6].

[15] Kuksal v Victorian Legal Services Board (Further Recusal) [2024] VSC 508.

[16] As noted above, People Shop Pty Ltd, as a company and not presently an incorporated legal practice, is not able to take a step in a proceeding other than by a solicitor. It has not engaged a solicitor to act for it. I raised with Ms Xu a concern that she was relying on a legal document expressed to have been prepared by People Shop Pty Ltd at a time when People Shop Pty Ltd was not entitled to engage in legal practice.

[17] Section 336 of the Uniform Law provides that a manager for a law practice may carry on the law practice and may do all things that the law practice might lawfully have done.

[18] Being sch 2 of the Competition and Consumer Act 2010 (Cth).

[19] Section 358 of the Legal Profession Uniform Law states that an 'aggrieved person may, in accordance with the applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, the appointment ... of an external intervener for a law practice'. The Supreme Court of Victoria is the 'designated tribunal' (Legal Profession Uniform Law Application Act 2014 (Vic), s 10(3)). Section 1324 of the Corporations Act 2001 (Cth) allows a person whose interests have been or would be affected by conduct that does or would constitute a contravention of that Act to apply for an injunction.

[20] Supreme Court (General Civil Procedure) Rules 2015, r 56.03.

[21] I note that, on 10 July 2024, Mr Kuksal indicated that the summons was 'a rephrasing of what is sought in the originating motion'.

[22] Rule 2.01(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) empowers the Court, where there has been a failure to comply with the Rules, to 'make orders dealing with the proceeding generally'.

[23] The principal cases referred to were Dey v Victorian Railways Commissioner (1949) 78 CLR 62 and Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76.

[24] As opposed to a 'fanciful' chance of success; see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA).

[25] Sobh v Ali [2023] VSC 225, [7] (Derham AsJ).

[26] Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256, 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[27] Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ); see also Batistatos v Road and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256, 264 [6] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 452 [88]-[89] (Gummow A-CJ, Hayne, Crennan and Bell JJ).

[28] Hubbard Association of Scientologists International v Anderson (No 2) [1972] VicRp 66; [1972] VR 577, 581 (Adam, Little and Gowans JJ).

[29] Proceeding number S ECI 2022 03994; see also Victorian Legal Services Board v Kuksal [2024] VSC 674.

[30] Cf Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 526-527, 530 (Gibbs J), 547 (Mason J); Attorney General of the Gambia v N'Jie [1961] AC 617, 634 (Lords Radcliffe, Denning and Guest).

[31] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ), citing Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180, 188 (Mason J), 189 (Aickin J).

[32] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ), citing Forster v Jododex Aust. Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437-438 (Gibbs J).

[33] See also Civil Procedure Act 2010 (Vic) s 64.

[34] As noted above in para 43, the defendants' application for summary dismissal is limited to matters of form rather than merit. Beyond what I have held above, I therefore make no comment as to the prospects of success of the substance of paragraph 1.

[35] Cf Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 13.10(3)(a); Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580, 600-601 [52] (Niall, Hargrave and Emerton JJA).

[36] Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228; (1985) 7 FCR 109, 114-115 (Fisher J).

[37] See Civil Procedure Act 2010 (Vic) ss 10, 18.

[38] The parties have not agitated the issue of whether the application for an extension of time should be granted or when it should be dealt with. As such, I make no determination on it at this stage.

[39] See also Cappelleri v Cappelleri [2024] VSCA 173, [57]-[60] (Emerton P, McLeish and Macaulay JJA).

[40] Cf Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 267 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ), cited in Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13, 1783 [5269(1)] (Elliott J); see further Cappelleri v Cappelleri [2024] VSCA 173, [64]-[65] (Emerton P, McLeish and Macaulay JJA).

[41] See Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170, 173 (Hutley JA): "Where a party wants specific relief, and the most that could be said in justification for seeking a declaration is that it is a stage in obtaining specific relief, it is an abuse of the process of the Court for the party concerned to avoid relevant issues by merely seeking a declaration without seeking the substantive remedies..."; see also at 176 (Glass JA), cf 182 (Mahoney JA). See further Coles v Wood [1981] 1 NSWLR 723, 728-9 (Hutley JA); OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120, [243] (Gleeson JA, Macfarlan and Leeming JJA agreeing) concerning 'merely prefatory' relief; Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales [2024] NSWCA 30, [27] (Leeming JA, Bell CJ and Ward P agreeing); cf National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; (2019) 377 ALR 627, 654 [119] (Allsop CJ).

[42] McGarrigle v Public Service Board [1979] 1 NSWLR 292, 295-296 (Moffitt P_)_, cited with approval in Annacott Pty Ltd v Konann Pty Ltd [2012] VSC 389, [51] (McMillan J).

[43] Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286, 307 (Barwick CJ and Jacobs J).

[44] Commonwealth of Australia v BIS Cleanaway Ltd (2007) 214 FLR 271; [2007] NSWSC 1075, [29] (Brereton J).

[45] Supreme Court (General Civil Procedure) Rules 2015, r 56.01(2).

[46] For example, an application for the recovery of possession of land or where there is no defendant.

[47] Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 4.04 and 4.06(a).