Plaintiffs v Defendants

(a) the plaintiffs' application to adjourn the trial made orally at the trial on 14 November 2024;

(b) the plaintiffs' application for me to recuse myself made orally at the trial on 14 November 2024;

(c) the plaintiffs' further application that I recuse myself made by the affidavit of Shivesh Kuksal dated 15 November 2024; and

(d) the plaintiffs' amended originating motion for declaratory relief filed on 21 January 2024.

2 I also made an order directing the parties to file and serve written submissions in respect of any application for costs by 4:00pm, Tuesday 11 March 2025, which I extended to 4:00pm, Thursday 20 March 2025, by orders made on 7 March 2025.

3 The fourth defendant, the Independent Broad‑based Anti‑corruption Commission ('IBAC'), filed submissions with the Court on 20 March 2025, seeking indemnity costs at the fixed sum of $66,450.48. No submissions responsive to the direction made for the parties to file submissions in respect of costs have been received from the plaintiffs.[2]

4 In accordance with the reasons set out below I will order that:

(a) the first and second plaintiffs pay IBAC's costs of the proceeding from Monday 3 June 2024 to Friday 15 November 2024, on an indemnity basis;

(b) the costs payable in accordance with paragraph (a) above are fixed in the sum of $66,450.48 which is payable immediately;

(c) the costs of the proceeding include all interlocutory orders where costs were reserved, and exclude the subject matter in respect of which costs were already awarded; and

(d) these costs orders do not entitle IBAC to recover from one plaintiff costs that it has already recovered from the other plaintiff.

5 The substantive proceeding was a judicial review application brought by the plaintiffs' against IBAC. The plaintiffs sought a declaration that IBAC committed a jurisdictional error or error of law in dismissing the plaintiffs' complaint by way of letter dated 5 April 2022. The plaintiffs' complaint was that of alleged misconduct by Victoria Police officers on 6 January 2022, when those officers executed a search warrant issued by the Magistrates' Court at a premise in Point Cook and arrested the plaintiffs.[3]

6 As noted in the primary judgment, this proceeding was originally initiated against a number of defendants in addition to IBAC. However, the claims brought against the first, second and third defendants, being the State of Victoria, the Magistrates' Court of Victoria ('Magistrates' Court'), and the Victorian Legal Services Board ('VLSB') respectively, have all been stayed by earlier orders of this Court.[4]

7 On 20 March 2025, IBAC filed its costs submissions with the Court, seeking the following costs orders:

(a) the first and second plaintiffs pay IBAC's costs of the proceeding from 3 June 2024 to 15 November 2024 (the 'relevant period') on an indemnity basis;

(b) the costs payable in accordance with paragraph (a) above are fixed in the sum of $66,450.48 which is payable immediately;

(c) the costs of the proceeding include all interlocutory orders where costs were reserved,[5] and exclude the subject matter in respect of which costs were already awarded; and

(d) these orders do not entitle IBAC to recover from one plaintiff costs that it has already recovered from the other plaintiff.

8 IBAC in its submissions seeks its costs for the relevant period, this period being the date from which it could reasonably be assumed that the plaintiffs had an opportunity to consider the effect of IBAC's decision to investigate the complaint on 16 May 2024, to the date at which the trial concluded, being 15 November 2024. However, IBAC does not seek its costs of preparing the costs application and submissions, and the work undertaken in considering various emails the plaintiffs have sent to the Court about this proceeding.

9 IBAC's submissions at trial relied exclusively on the fact that a subsequent decision had been taken on 16 May 2024 to investigate the allegations of the plaintiffs, and it seeks only the costs, including reserved costs, incurred after the date of the decision of 16 May 2024. IBAC submits that the Court should be satisfied that, by at least Monday, 3 June 2024, the plaintiffs were on notice of the decision to investigate and had an opportunity to consider the effect of the decision to investigate on the matters it sought to litigate, via its amended originating motion.

10 IBAC notes that the Court dismissed the plaintiffs' originating motion on the basis that the declaration sought lacked utility as IBAC had since taken the decision to investigate the plaintiffs' allegations, and that conducting litigation in these circumstances is tantamount to abuse of process, runs counter to public interest, and the timely and efficient resolution of disputes. The Court's processes and resources should not be encouraged to be used for political or personal vendettas.

11 IBAC seeks indemnity costs for the relevant period against both the first and second plaintiffs on the basis that unusual circumstances have been demonstrated in respect of the plaintiffs' conduct.

12 It was submitted that both plaintiffs acted unreasonably in continuing to prosecute the amended originating motion after IBAC had taken the decision to investigate, which was 'undertaking the very thing about which the plaintiffs seek the Court's intervention.'[6]

13 Concerning the unusual and unreasonable conduct of the plaintiffs', IBAC submits that:

(a) During the relevant period, both plaintiffs refused to cooperate with IBAC in compiling the court book for the hearing, including IBAC's attempts to agree to a protocol for preserving the confidentiality of certain documents by application of the Public Interest Disclosure Act 2012 (Vic), and ignored directions made by the Court on multiple occasions, including opportunities which the plaintiffs had sought to amend their originating motion. The plaintiffs also failed or refused to file evidence and submissions, and made three lengthy, baseless interlocutory applications during the hearing of the trial, causing a trial that was set down for one day to continue for two.

(b) The plaintiffs arrived late on the second day, claiming this was for medical reasons (with no certificate) but having used the time to make a complaint against her Honour Justice Quigley to IBAC, as a further basis for a recusal application. Both plaintiffs have sent emails to the Court, since judgment was reserved (and after judgment was handed down), seeking to relitigate various matters raised in the proceeding and bombarding the Court and parties with voluminous and irrelevant materials.

(c) The first plaintiff, by his own admission, engaged in various 'tactics' during the course of the proceeding, instead of participating in good faith and co‑operatively, as required by the Civil Procedure Act 2010 (Vic) ('Civil Procedure Act'). This included a recent email to the Court where the first plaintiff explained that he employed 'cognitive warfare principles' in litigation.

(d) The first plaintiff behaved unacceptably during the hearing. His demeanour was 'aggressive, rude and intimidatory not only of opposing counsel but towards the Court and staff'.[7] This was a 'pattern of behaviour he adopted throughout the hearing despite being warned that his constant physically aggressive interruptions were inappropriate'. The first plaintiff was asked by the Court to sit down on 93 occasions and, failing cooperation, was asked to leave the courtroom 52 times. The first plaintiff was openly aggressive and security was asked to intervene to escort him from the courtroom on two occasions. The Court found that the first plaintiff displayed 'egregiously poor conduct, offensive and inappropriate language, and a lack of cooperation that transcended anything which could be described as acceptable conduct.'[8]

(e) The first plaintiff made multiple, far‑reaching and baseless allegations against IBAC, its counsel, and the Court itself, of either improper conduct, dishonesty, corruption, misfeasance, fraud or collusion.

(f) The second plaintiff's behaviour during the hearing of the trial was notably distinguishable from that of the first plaintiff. This much was recognised in the Court's judgment, and by IBAC's counsel during the hearing, though with the exception of the second plaintiff's indication that she intended to lead extensive, irrelevant material. However, the Court still observed that while her courtroom etiquette was not criticised, the second plaintiff largely supported submissions made by the first plaintiff, and the Court was unconvinced by her lack of compliance with the Court's orders and the manner in which the trial was conducted on its merits.

(g) The second plaintiff has also aligned herself with the first plaintiff in a mission to publish information online about IBAC and other public officials and to use the court proceedings, including the transcript of the trial, to generate content for that objective. The second plaintiff's complaint to IBAC of 17 April 2024, referred to clips she uploaded to YouTube. In her submissions in opposition to IBAC's summons under part 7 of the Public Interest Disclosure Act 2012 (Vic), the second plaintiff said that the order would 'affect [their] ability to publish' the material. Counsel for IBAC noted that the second plaintiff's desire to use the proceedings to create content for something else, involving publication of the plaintiffs' interactions with various government agencies and the Court, constitutes further evidence of an abuse of process because it was for a collateral purpose, extrinsic to the just, efficient and fair determination of the issues in the case.

(h) Moreover, the plaintiffs have previously been ordered to pay indemnity costs for their conduct in other proceedings. This was on the basis that they had engaged in conduct which were in breach of the obligations imposed by subsections 18, 23, 24, and 25 of the Civil Procedure Act. While the Court noted that the conduct justifying the costs orders were 'especially' attributable to the first plaintiff, the Court nevertheless awarded indemnity costs for particular days of the hearings against both the first and second plaintiffs. The plaintiffs' status as self‑represented litigants in these proceedings can be of no bar to awarding indemnity costs against them.

14 In previous matters involving the plaintiffs and IBAC, costs have been awarded against the plaintiffs on a fixed basis. IBAC seeks to adopt this approach again.

15 The legal principles relevant to the determination of whether fixed costs should be awarded is rule 63.07(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Supreme Court Rules'), which provides that where a Court orders that costs be paid to a party, the Court may then or thereafter order that instead of taxed costs, the party shall be entitled to a gross sum specified in the order. The purpose being to 'avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation'.[9]

16 IBAC relies on the affidavit of Cameron George Warfe affirmed on 20 March 2025, filed together with these submissions, in support of its application for fixed indemnity costs for the relevant period.

17 The costs incurred in the relevant period consist of:

(a) costs of two solicitors from DLA Piper Australia ('DLA Piper'), being a junior solicitor with under five years post‑admission experience, and a partner with over 10 years post‑admission experience, respectively;

(b) disbursements for the fees of two counsel: additional junior counsel was briefed shortly before the trial in the light of the complex history of this matter, which, as the Court noted, included 14 sets of orders and three interlocutory judgments; as well as the manner in which the plaintiffs conducted this proceeding, often involving the last‑minute supply of prolix documentation or the making of applications on the day of the hearing. Furthermore, IBAC submits that the costs associated with the retention of two counsel are reasonable in circumstances where the combined hourly and daily rates of both members of counsel are less than the maximum amount allowable under the Supreme Court Rules Scale for a single member of junior counsel, for both appearance ($7,115 per day excluding GST) and non‑appearance work ($711 per hour excluding GST); and

(c) disbursements for the transcription of the proceedings.

18 IBAC claims the costs and disbursements it has incurred in this proceeding during the relevant period, which includes its:

(a) costs and disbursements of one interlocutory hearing on 14 August 2024 before Baker JR;

(b) costs and disbursements of its summons dated 6 November 2024 ('IBAC Summons'); and

(c) costs and disbursements of the trial on 14 and 15 November 2024.

19 IBAC claims the costs of DLA Piper, external legal practitioners engaged by IBAC as solicitors on the record in this proceeding, in addition to counsel's fees and transcription fees it has incurred. It does not claim the costs incurred by its in‑house legal practitioners.

20 The costs incurred during the relevant period are as follows:

DLA Piper's fees for work performed between 3 June 2024 and 20 August 2024 (including advising IBAC, drafting correspondence to the plaintiffs and the Court, attending conferences, drafting proposed minutes of order and attending an interlocutory hearing on 14 August 2024).

DLA Piper's fees for work performed between 16 October 2024 and 1 November 2024 in relation to IBAC's Summons (including advising IBAC, drafting correspondence to the plaintiffs and the Court, preparing, filing and serving the IBAC Summons).

DLA Piper's fees for work performed between 11 September 2024 and 15 November 2024 (including preparing for trial by drafting, filing and serving the court book, callover form, submissions; correspondence with the plaintiffs, the Court, IBAC and counsel, and generally planning, preparing and attending trial on 14 and 15 November 2024).

Counsel's fees for work performed and appearances from 2 August 2024 to 14 August 2024 (including settling correspondence, attending conferences with DLA Piper and IBAC, analysis of documents and interlocutory reasons relevant to the proceeding, settling proposed form of orders and appearing at the interlocutory hearing on 14 August 2024).

Counsel's fees for work performed between 17 October 2024 and 30 October 2024 in relation to the IBAC Summons (including discussions between counsel, considering the application of part 7 of the Public Interest Disclosures Act 2012 (Vic) to the contents of the draft Court Book, drafting the IBAC Summons, attending conferences with IBAC and DLA Piper, proposing the form of protocol for the confidentiality regime to be put to plaintiffs, and drafting submissions on confidentiality in support of the IBAC Summons).

Counsel's fees for work performed and appearances between 17 September 2024 and 15 November 2024 (including drafting submissions, preparing for trial, and appearing at trial on 14 and 15 November 2024).

Transcription fee for the hearing on 14 August 2024 (half day).

Transcription fees for the hearing on and 14 to 15 November 2024 (full days).

21 On 20 December 2023, the Honourable Justice Ginnane ordered that the plaintiffs pay IBAC's costs of its summons dated 1 June 2023 which were fixed at $7,295.00.

22 On 1 November 2024, the Honourable Justice Ginnane ordered that the plaintiffs pay IBAC's costs of hearing days on 28 July, 1, 2, 4, 9 and 10 August 2023, and 9 and 10 November 2023, less a 20% discount, fixed at $21,738.41.

23 IBAC has not received any payment of these costs by the plaintiffs.

24 There is a broad discretion on this Court in determining questions of costs.[10] The general rule is that costs should follow the event and, absent any disqualifying conduct, the successful party, in this case the fourth defendant, should recover its costs.[11]

25 The Supreme Court Rules endow this Court with flexibility as to costs awards. The Court endeavours to do substantial justice between the parties as to costs and, in doing so, may consider the realities of the case.[12]

26 While costs are usually awarded on a standard party/party basis, costs may be made on an indemnity basis in special or unusual circumstances. This would include where there has been misconduct in a proceeding, where a proceeding has been brought for an ulterior purpose, or where it was patently unreasonable to institute or maintain the proceeding. Special circumstances also include where a party has made an allegation of fraud which is not proved.[13]

27 As already noted in IBAC's submissions (see [13] above), both plaintiff's refused to co‑operate with the defendants and ignored directions made by this Court on multiple occasions. The plaintiffs failed to file evidence submissions, and make amendments to their originating motion. Similarly, both plaintiffs have bombarded this Court with emails containing voluminous and irrelevant materials since this judgment was reserved; notably, seeking to relitigate matters raised in the proceeding amounting to misconduct by the plaintiff.

28 Concerning the plaintiffs' conduct, IBAC submitted that both plaintiffs failed to participate in this proceeding in good faith. In this regard, I found that the first plaintiff's behaviour was intimidating, aggressive and rude. I asked the first plaintiff to sit down, refrain from interrupting, and to leave the courtroom on a multitude of occasions. The plaintiffs made numerous baseless allegations against IBAC, its counsel and the Court itself of improper conduct and corruption, demonstrating the egregious misconduct by the plaintiffs during this proceeding.

29 Moreover, the plaintiffs have published information online about IBAC, other public officials and have used this court proceeding, including the transcript of the trial, to generate content for the objective of proving the improper conduct and corruption of the legal system and other government bodies and officials, upholding the notion that the parties have instigated these proceedings for an ulterior purpose.

30 Accordingly, I am satisfied that indemnity costs should be awarded on the lack of utility in this proceeding, the delays occasioned by the plaintiffs, and obstructive and unhelpful conduct throughout the hearing (in particular that of Mr Kuksal) and in the preparation (or lack thereof) of the matter for trial, the false allegations of fraud, and the plaintiffs' ulterior purposes for instigating these proceedings.

31 Being satisfied that indemnity costs should be awarded, I now turn to the question of whether indemnity costs should be awarded as a fixed sum.

Whether indemnity costs should be awarded as a fixed sum

32 IBAC seeks a fixed costs (or gross sum) order in circumstances, it submits, where the costs of taxation would unduly add to the costs of litigation. IBAC submits the plaintiffs have acted unreasonably in the proceeding generally, and the Court should conclude that the process of taxation is likely to be more costly and drawn out than would otherwise normally be the case. Additionally, IBAC submits that it is unlikely to recover any costs incurred in a taxation process.

33 IBAC seek this gross sum to be assessed pursuant to r 63.07 of the Supreme Court Rules_._ Rule 63.07 states as follows:

(1) Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.

(2) Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to -

(a) a portion specified in the order of taxed costs;

(b) taxed costs from or up to a stage of the proceeding specified in the order;

(c) a gross sum specified in the order instead of taxed costs;

(d) a sum in respect of costs to be determined in such a manner as the Court directs.

34 The principal purpose of the Court's jurisdiction to make a fixed costs order is to avoid the expense, delay, and aggravation involved in protracted litigation arising out of taxation.[14] This involves a 'broad brush approach, without the rigour and precision of the process of taxation' but which should be 'logical, fair and reasonable'.[15]

35 For IBAC's application for a fixed costs order, the Court must be satisfied that such costs are reasonable without engaging in a detailed taxing exercise. IBAC does not seek an order which includes its cost incurred since the trial. This means the costs sought do not include the costs incurred in preparing these submissions, its costs application, and costs incurred in considering the material that the plaintiffs sent to the Court after the trial. Having regard to the issue of reasonableness, IBAC also seeks to apply a conservative approach of a 20% discount to the indemnity costs that might otherwise have been awarded for the relevant period.

36 I further note that the plaintiffs acted unreasonably in the proceeding before me, and I foresee that the process of taxation is likely to be more costly and drawn out than would normally be the case.

37 Given the reasonableness of the constrained time period of the relevant period and the 20% discount IBAC have applied, the unpaid costs of IBAC by the plaintiffs in other proceedings, and the unreasonableness of the plaintiffs' conduct, I am satisfied that indemnity costs should be awarded as a fixed sum. I now turn to the question of the appropriate quantum of the fixed sum.

Appropriate quantum for the fixed sum of indemnity costs

38 The Court must 'be confident that the material before it enables it to make a sufficiently reliable calculation or estimate of an appropriate cost sum'.[16]

39 Given the above detailed description at [17]-[18], the table of costs at [20], and the affidavit of Cameron George Warfe affirmed on 20 March 2025, there is sufficient evidence before me of reliable calculations for costs sought.

40 Moreover, given that costs are only calculated within the constrained time period and at a 20% discount, I am satisfied that the appropriate quantum for the fixed sum of indemnity costs should be $66,450.48.

41 In light of the above reasons, I am satisfied that the plaintiffs should pay the costs of the fourth defendant arising out of the plaintiffs' amended originating motion for declaratory relief filed on 21 January 2024, on an indemnity basis at the fixed sum of $$66,450.48.

[1] Kuksal v State of Victoria [2025] VSC 72.

[2] However, there has been correspondence received from the plaintiffs irrelevant to this direction which has been disregarded.

[3] The trial before me proceeded on an amended originating motion filed 21 January 2024, which only dealt with the declarations sought by the plaintiffs against IBAC.

[4] See Kuksal v State of Victoria [2025] VSC 72, [2].

1. [5] Costs were reserved in the following orders: Order of Keith JR (Supreme Court of Victoria, S ECI 2022 04808, 28 February 2024); Order of Conidi JR (Supreme Court of Victoria, S ECI 2022 04808, 27 March 2024); Order of McCann JR (Supreme Court of Victoria, S ECI 2022 04808, 22 May 2024); Order of Baker JR (Supreme Court of Victoria, S ECI 2022 04808, 14 August 2024). However, IBAC seeks costs only from 3 June 2024, including the costs reserved in the Orders of 14 August 2024. The reserved costs of the orders dated 28 February 2024, 27 March 2024, and 22 May 2024 are not sought. The Order of Ginnane J (Supreme Court of Victoria, S ECI 2022 04808, 27 June 2023) in which costs were reserved are also not sought.

[6] See Kuksal v State of Victoria [2025] VSC 72, [86].

[9] Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 57 FCR 119, 120F (von Doussa J).

[10] Amcor Ltd v Barnes [2020] VSC 585, [35] (Sloss J), citing s 24(1) of the Supreme Court Act 1986 (Vic), ss 49(3)(k) and part 4.5 of the Civil Procedure Act 2010 (Vic), and rr 63.02, 63.03 and 63.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

[11] David Weiping Chen v Kim Man Chan (No 2) [2009] VSCA 233, [10(1)] (Maxwell P, Redlich JA and Forrest AJA).

[14] Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 57 FCR 119, 120F (von Doussa J).

[15] Giurina v Greater Geelong City Council [No 2] [2021] VSCA 341, [16] (Kennedy and Walker JJA and Macaulay AJA).

[16] Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11, [21] (Barrett J).