The Federal Circuit and Family Court has taken the rare step of awarding costs in a Fair Work matter, which “turned out to be anything but informal, efficient, timely or cost effective” and had a counsel quoting a classical Roman poet.
In an August 2 decision delivered in Melbourne, Judge Forbes was scathing of businessman Shivesh Kuksal, ordering him to pay $100,000 in court costs in relation to eight related small claims for underpayment of wages and superannuation.
The claimants were mainly international students – many from Spanish or South American backgrounds, and most having been in Australia for less than 12 months – who performed cleaning and housekeeping work at guest accommodation operated by Mr Kuksal, between July 2017 and January 2018. Five were not paid and three were underpaid, with the total amount claimed about $22,000.
Judge Forbes referred to his five preceding judgments, spanning from May 2022, in the “long running and complex litigation”.
“However, the proceedings also had a unique dynamic all of which can never be captured in a written judgment,” he said.
“As the parties will be aware the proceedings were punctuated with numerous applications and rulings which were dealt with in the running. At times the proceedings were chaotic and hostile. They were certainly needlessly complicated and protracted. The conduct of the litigation by the parties has informed my attitude to the costs application.”
He said during the hearings he had repeatedly emphasised the court’s objective to promote the quick, efficient and cost-effective resolution of disputes.
“I see no reason why litigation conducted under the small claims procedure should not be amenable to an award of costs where a clear case for departure from the general rule is made out,” he said.
Judge Forbes said he was satisfied Mr Kuksal had instituted many applications during the proceedings “which, if not vexatious, were certainly without reasonable cause and were doomed to failure”.
This had led to “the inescapable conclusion that the conduct of the respondent significantly contributed to the prolongation, complexity and cost of the litigation” involving applicants who were “essentially blameless”, he said.
Counsel for the applicants summed up the events by quoting Virgil’s Aeneid:
“Even with a hundred tongues, a hundred mouths, a voice of iron and, to these, brazen lungs, it would be difficult to fully articulate all of the unreasonable acts or omissions of the respondent. Needless to say, the proceedings proceeded painfully at almost every step,” they said.
Between October 2021 and February 2024, Mr Kuksal’s conduct included applications for summary dismissal of the proceedings, for recusal of a judge and for the proceedings to be stayed for an application seeking judicial review. Mr Kuksal also failed to attend hearings and defaulted on orders to file submissions, which resulted in adjournments.
“For much of these proceedings Mr Kuksal conducted himself in a belligerent and disrespectful manner, often directly challenging the jurisdiction of the court and embarking on long speeches in doing so,” Judge Forbes said.
“He spoke over the court and the applicant’s representatives. Mr Kuksal accused the court of bias and the applicant’s representatives of professional misconduct. He sought to undermine the authority of the court by making unmeritorious recusal applications and by seeking adjournments on the threat of making applications to the Federal Court for judicial intervention.
“Not much came from any of this, save for the applicants being subjected to unnecessary delay, cost and inconvenience.”
Judge Forbes accepted the counsel’s submission that some interlocutory applications were strategically placed to caused delay and frustrate progress.
“Advancing hopeless applications to cause delay, knowing that the applicants were young and vulnerable and relying on support from a community legal centre, is properly described as vexatious. The inconvenience to the court, requiring ex tempore rulings and written reasons for interlocutory applications, also cannot be ignored.”
He noted the ambiguous state of the businessman’s representation was ”at times almost farcical”.
“Mr Kuksal was at material times the beneficial owner and director of a legal practice which operated under a series of different names including The People Shop, New Edge Law and Erudite Legal,” he said.
“Mr Kuksal is not a lawyer or at least is not admitted to practice as such in Victoria . The legal practice was purportedly engaged to represent Mr Kuksal from time to time during the course of these proceedings, although the nature and scope of their engagement and role in this proceeding was often unclear.
“During the proceedings, various solicitors and firms associated with Mr Kuksal came on and went off the record, confusing both the court and the applicants’ representatives.
“The court had to waste time interrogating Mr Kuksal about the status of his representation and at times Mr Kuksal seemed unable to clarify whether he was represented or not.”
Judge Forbes said the case was “extremely challenging from a case management perspective”.
“What is more difficult to describe, but is nonetheless real, is the aggregate effect of small discourtesies and delays which impacted the efficient hearing of these matters,” he said.
“Mr Kuksal was often late to join Microsoft Teams hearings, both at the start of the day or after adjournments. On numerous occasions he complained of connection issues or dropped out. Mr Kuksal frequently interrupted others, spoke out of turn and failed to adhere to court deadlines. He was invariably argumentative and obstinate. He was combative and often disrespectful of the applicants’ solicitor and counsel, accusing them of unprofessional conduct.
“This behaviour, which was a feature of the litigation from beginning to end, was unreasonable and subjected the applicants to delay, cost and inconvenience.
“I am satisfied that the respondent’s conduct in these proceedings engages both limbs of s 570(2) of the Fair Work Act and that the court’s power to order costs is properly enlivened.”
Mr Kuksal was ordered to pay the costs bill within 28 days.
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