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Judge accused of corruption by ousted solicitor, fake lawyer
The ongoing saga triggered by a fake lawyer’s alleged threats, an ousted solicitor and the law firm they operated has been derailed by yet another attempt to have the judge recuse himself on the grounds of corrupt conduct and “morally perverse” comments.
Naomi Neilson
Justice Peter Gorton of the Victorian Supreme Court dealt with the 11th recusal application brought by Shivesh Kuksal, Lulu Xu and ousted solicitor Peter Ansell, which was made orally, without notice and specifically related to their last attempt.
The history of the controversial proceedings can be traced back to the Victorian Legal Services Board’s appointment of two investigators and a manager to People Shop, which traded as Erudite Legal.
All three applicants were related to Erudite, but neither Kuksal nor Xu had legal qualifications or held a practising certificate. Ansell has since been restrained from practising.
In the June judgment, in which Justice Gorton also decided not to recuse himself from their matter, the judge mentioned submissions by the three applicants that the board allegedly acted in “bad faith” by failing or refusing to renew Ansell’s practising certificate.
Specifically, Justice Gorton wrote the interests of the public would be “seriously harmed” if a solicitor was entitled to practise “after his or her practising certificate has been cancelled or not renewed until such time as an application to have that … reviewed”.
Kuksal submitted this paragraph was “morally perverse” and condoned a “tyrannical version of government”.
Justice Gorton rejected this and said he remains of the view Ansell is not entitled to engage in legal practice.
“I make no finding on the circumstances that led to the board not renewing Ansell’s practising certificate, but otherwise disagree with this submission,” Justice Gorton said.
Kuksal also took issue with a paragraph in the June judgment that referred to his contention that Victoria Police and the board had conspired to cause him harm, the board had “maliciously abused its authority”, and various people acted fraudulently.
In his submissions, Kuksal said that by not determining whether his misconduct allegations were valid, Justice Gorton had “brought the administration of justice into disrepute” because no judge “would leave that sort of allegation unanswered”.
“There is nothing in either of those submissions.
“My failure to make factual determinations as to whether Victoria Police and the board have engaged in improper conduct prior to determining that recusal application is no reason for me now to recuse myself,” Justice Gorton said.
The applicants also alleged Justice Gorton did not give adequate attention to the Supreme Court (General Civil Procedure) Rules 2015 and made a lump-sum costs order that was “perverse”.
“I do not accept that any of these matters might cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to the resolution of the issues,” Justice Gorton said.
So frustrated is Justice Gorton with the repeated recusal applications that he ordered the three applicants to file and serve written submissions “at least three working days in advance” of their next attempt.
The court will then decide the application on the papers.
Despite the applications having repeatedly taken up court time and frustrated the “orderly preparation” of the proceedings – particularly when none have succeeded and have been without merit – Justice Gorton said it has been “difficult … to know where to draw the line”.
“It is an abuse of process to bring a recusal application for no good reason or to bring a second recusal application on the same grounds as an earlier and dismissed recusal application, but it is not always easy to determine … without allowing it to be developed at least to some degree,” Justice Gorton said in his written reasons.
However, he said the circumstances called for the three-day order.
“If the situation were as Kuksal contends, a party would have the practical ability to frustrate the proper management and hearing of a proceeding by making repeated and unmeritorious recusal applications.
“This would not just lead to a waste of court time, but also impose an unfair burden on other parties to litigation,” Justice Gorton said.
In another issue, the applicants said they intended to serve a notice on the Attorney-General and Victorian Equal Opportunity and Human Rights Commission and add them both as defendants, given Justice Gorton’s comments about Ansell’s certificate.
Kuksal also submitted that a “constitutional issue” has been raised because Justice Gorton has not stood down “until such a time as there has been a proper investigation of those allegations”.
Justice Gorton rejected any submission that a judge should stand down because a party has made allegations against them.
As for the notice to the Attorney-General, Justice Gorton said it was not currently appropriate to make any orders.
However, Justice Gorton said he would not set down a hearing for parts of their summons in order to give the applicants time to prepare subpoenas and the Attorney-General’s notice.
The matter continues.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
