In Justice Ginnane’s proceedings, the issues stem back to Kuksal and Xu’s complaints against Victoria Police for a search order on a Point Cook residence and their arrests for allegedly obtaining property by deception and theft of furniture that was meant to be sent interstate.

Although the charges were eventually dropped, Kuksal and Xu disputed the validity of the search warrant and questioned whether the officers were in contravention of the Victoria Police Act 2013.

To advance their case, Kuksal and Xu filed a number of interlocutory applications that were knocked back, including leave to rely on an amended version of their originating motion, to reopen their case and rely on further evidence, and to join 23 more defendants.

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Save for leave to file and serve an amended originating motion on the Independent Broad-based Anti-corruption Commission (IBAC), Kuksal and Xu did not succeed on any interlocutory applications.

Some were refused because it would have meant the Supreme Court was taking over the criminal charges in the Magistrates Court, and others would have “launched a form of court inquiry into the conspiracy that the plaintiffs alleged, and into unrelated allegations that they make under the guise of a judicial review proceeding”.

While the proceedings have not yet concluded, Justice Ginnane turned to the issue of whether costs should be awarded to the state of Victoria, the Victorian Legal Services Board (VLSB), and IBAC for those failed interlocutory applications. Justice Ginnane stressed his judgment was not for the costs of the entirety of the proceedings.

He also explained that the charges being withdrawn did not mean Kuksal and Xu were to be “treated as victorious”.

“The fact that the charges were withdrawn does not provide the plaintiffs with a justification for commencing this proceeding or making lengthy interlocutory applications,” Justice Ginnane said.

In their submissions, Kuksal and Xu argued that because of their supposed victory, the state of Victoria should not be “rewarded for its unconscionable deployment of unethical manoeuvres and casuistry”.

Xu separately submitted that the state should not be awarded costs or, alternatively, the decision of costs should be reserved until the conclusion of proceedings because the state had “unreasonably maintained the prosecutions, which were without merit”.

In response, the state of Victoria said they breached the overarching principles in the Civil Procedure Act 2010 to narrow the issues in dispute and ensure costs were reasonably proportionate.

It added that Kuksal and Xu caused a single hearing day to be extended into an additional seven, and the time taken for oral arguments and submissions “far exceeded the time taken by other parties”.

Further, Kuksal and Xu provided new and additional material on what the state alleged was a “rolling basis”, circulated material without prior leave of the court, used “misconceived” arguments in an attempt to reopen their case, and delayed delivery of judgment.

The Legal Services Board said serious allegations were made against it, which the court found were “supported by little factual evidence and which contained assertions that might not be admissible”.

Given Kuksal and Xu sought to add claims against the board and other defendants in “real time”, they risked the proceedings becoming a “rolling” judicial review proceedings. Applications for the judge to recuse himself were also “made in a frivolous and haphazard manner”.

IBAC made similar submissions concerning the delays.

Justice Ginnane accepted the matters raised by Kuksal and Xu “extended considerably beyond those usually associated with judicial review proceedings or applications for declarations”.

Just over an hour before Justice Ginnane was due to deliver his judgment, Kuksal and Xu emailed his chambers with a request that he delay delivery until after the conclusion of “recent developments involving revelation of further misconduct by Victoria Police, the Victorian Legal Services Board and IBAC”.

Justice Ginnane refused.

“The plaintiffs’ email of this afternoon referring to ‘further misconduct’ by various entities suggests again that the plaintiffs misunderstand the purposes of this proceeding and, in particular, of this costs judgment,” Justice Ginnane said.

“That purpose is not to conduct an inquiry into allegations of ‘misconduct’, but, in the case of this costs judgment, to decide the costs of interlocutory applications heard and determined last year.”

The case is Kuksal v State of Victoria (Costs) [2024] VSC 671 (1 November 2024).