FEDERAL COURT OF AUSTRALIA

Victorian Legal Services Board v Kuksal [2025] FCA 558

ORDERS

THE COURT NOTES THAT:

Orders 1 and 2 below are made upon the applicant’s undertaking to:

(a)    submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not that person is a party) affected by the operation of Orders 1 and 2 or any continuation (with or without variation) of those orders; and

(b)    to pay the compensation referred to in (a) above to the person affected by the operation of Orders 1 and 2.

THE COURT ORDERS THAT:

1.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (Act) and r 1.32 of the Federal Court Rules 2011 (Cth) (Rules), until the hearing and determination of the applicant’s interlocutory application filed in this proceeding on 21 May 2025 (Interlocutory Application) or further order, the respondents, their officers, servants, employees and agents are restrained from:

(a)    uploading, disclosing, disseminating or otherwise publishing or causing to be published, the ‘Flitner Allegations’ (as defined in the applicant’s concise statement filed in this proceeding) or any part of them; and

(b)    communicating to the applicant, its officers, employees or agents (including its legal representatives), whether directly or indirectly, any threat to engage in conduct the subject of Order 1(a) above.

2.    Pursuant to s 23 of the Act and r 1.32 of the Rules, until the hearing and determination of the Interlocutory Application or further order, the respondents (or any of them), their officers, servants, employees and agents shall remove any matter or material uploaded, disclosed, disseminated or otherwise published or made available for publication by the respondents, their officers, servants, employees or agents, which contains, records or refers to the Flitner Allegations (or any part of them) or their substance and, refrain from re-uploading, re-disclosing, re-disseminating or re-publishing such matter or material.

3.    Pursuant to r 2.32(3) of the Rules, the following documents in the proceeding are to be treated and marked confidential and shall not be available for inspection by any person not a party to this proceeding:

(a)    the Confidential Annexure to the applicant’s concise statement filed in this proceeding;

(b)    the Confidential Annexure JRH-2 to the affidavit of Jared Robert Heath affirmed 21 May 2025 and filed in this proceeding;

(c)    the Confidential Annexure JRH-3 to the affidavit of Jared Robert Heath affirmed 21 May 2025 and filed in this proceeding;

(d)    any document filed with the Court that exhibits, attaches or contains the documents referred to in Orders 3(a) and 3(b) above or refers to or records the substance of those documents; and

(e)    any document filed with the Court that contains, records or refers to the substance of the Flitner Allegations.

4.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act, until the hearing and determination of the Interlocutory Application or further order, publication of the Flitner Allegations (or any part of them) and of any document referred to in Order 3 above is prohibited.

5.    Pursuant to ss 37AF(1)(a) and 37AG(1)(a) of the Act, until the hearing and determination of the Interlocutory Application or further order:

(a)    the person referred to in paragraph [1] of the Confidential Annexure to the applicant’s concise statement filed in this proceeding shall be referred to in connection with this proceeding and in any documents filed in this proceeding only by the pseudonym ‘Person 1’;

(b)    the person referred to in paragraph [6] of the Confidential Annexure to the applicant’s concise statement filed in this proceeding shall be referred to in connection with this proceeding and in any documents filed in this proceeding only by the pseudonym ‘Person 2’; and

(c)    publication of any information tending to reveal the identities of Person 1 or Person 2 is prohibited.

6.    Pursuant to r 10.24 of the Rules, the applicant is permitted to effect service on the respondents of the following documents in this proceeding by email at the respondents’ last known email addresses (being: shivesh@wizdomjournal.com; peter@wizdomjournal.com; and lulu@wizdomjournal.com):

(a)    the originating application;

(b)    the concise statement;

(c)    this interlocutory application; and

(d)    the affidavit of Jared Heath affirmed 21 May 2025 and its exhibits.

7.    Service pursuant to Order 6 above is taken to have been effected by the emails from Jared Robert Heath of Corrs Chambers Westgarth sent to each of the respondents at 11:23am AEST and 12:18pm AEST and 12:19pm AEST on 21 May 2025.

8.    Pursuant to r 2.32(3) of the Rules, until the hearing and determination of the Interlocutory Application or further order, the affidavit of Lulu Xu affirmed 13 May 2025 and filed in proceeding VID 222/2025 together with its exhibits/annexures (Xu Affidavit) shall be treated and marked confidential and shall not be available for inspection by any person not a party to this proceeding.

9.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act, until the hearing and determination of the Interlocutory Application or further order, any information contained within or derived from the Xu Affidavit is prohibited.

10.    Costs in the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    There are two interlocutory applications before the Court. The first interlocutory application was brought by the Victorian Legal Services Board against Mr Shivesh Kuksal, Mr Peter Ansell and Ms Lulu Xu. The second interlocutory application was brought by the Victorian Legal Services Board and three natural person applicants against the same respondents. The applications are for interlocutory relief restraining the respondents from conduct which on the applicant’s case amounted to a threatened abuse of process or threatened conduct that would otherwise constitute a contempt of court and orders with respect to the removal of documents accepted for filing and from the Court file, the inspection of documents and suppression.

2    The matter came before me urgently as the duty judge and was heard on 21 May 2025. The respondents appeared as litigants in person. They were notified of the applications less than 24 hours before the hearing occurred. They each indicated that they wished to make submissions, but that Mr Kuksal would take the lead and Ms Xu and Mr Ansell would only make any additional submissions they thought necessary to complete Mr Kuksal’s submissions. In the circumstances that unfolded, the Court heard only from Mr Kuksal.

3    All parties appeared remotely. The applicant’s counsel and instructing solicitor appeared by audio-visual link. Mr Kuksal and Ms Xu appeared by audio-visual link. Mr Ansell appeared by telephone. From time to time the audio was compromised.

BACKGROUND

4    In the first interlocutory application, the applicant is the Victorian Legal Services Board, and in the second interlocutory application, the first applicant is also the Victorian Legal Services Board. The Victorian Legal Services Board regulates the Victorian legal profession and exercises powers and functions under the Legal Profession Uniform Law Application Act 2014 (Vic) and the Legal Profession Uniform Law (Vic) contained in its Schedule 1. The applicant and respondents are engaged in various litigation arising out of actions taken by the applicants in relation to the respondents with respect to the operation of legal practices. As a result of costs orders made in proceedings in the Supreme Court of Victoria, which were not satisfied, the applicant has sought sequestration orders against the respondents. That matter is VID222/2025 and is hereafter described as the bankruptcy proceedings. The application in that matter came before the Court on 15 May 2025 and on 19 May 2025 Bennett J delivered judgement and made orders as follows:

THE COURT ORDERS THAT:

1.    The proceeding be transferred to the docket of another judge of the Federal Court of Australia as soon as is reasonably practicable.

5    The respondents dispute that the debts are owing on a number of bases which do not need to be traversed in this judgement.

6    In the bankruptcy proceedings, the applicants sought orders pursuant to rr 2.28, 2.29, 2.32(3), 6.01 and 29.03 of the Federal Court Rules 2011 (Cth) (Rules), and ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Act) on 21 May 2025.

7    The other matter is that of VID642/2025, to be known, for the purpose of this judgement, as the conduct proceedings. In that matter, the applicant is the Victorian Legal Services Board and the respondents are Mr Kuksal, Mr Ansell and Ms Xu. That matter was commenced by originating application, filed 21 May 2025, seeking the following relief:

A.    Injunctions (interim, interlocutory and permanent) restraining the respondents, their officers, servants, employees and agents from:

i.    engaging in conduct that is calculated or has a tendency to intimidate, harass or otherwise bring improper pressure to bear on the applicant (including its officers, employees or agents including its legal representatives) in respect of the conduct of any legal proceeding, such as to deter them from prosecuting, defending, acting in or giving evidence in any legal proceeding or influencing their evidence in any legal proceeding;

ii.    alternatively to A(i) above, uploading, disclosing, disseminating or otherwise publishing or causing to be published, any matter, content, statement, threat or allegation that is calculated to intimidate, harass or otherwise bring improper pressure to bear on the applicant (including its officers, employees or agents including its legal representatives) in respect of the conduct of any legal proceeding, such as to deter them from prosecuting, defending, acting in or giving evidence in any legal proceeding or influencing their evidence in any legal proceeding; and

iii.    without limiting A(i) [alternatively, A(ii)] above, communicating to the applicant, its officers, employees or agents (including its legal representatives), whether directly or indirectly, any threat to engage in conduct the subject of A(i) [alternatively, A(ii)] above.

B.    Alternatively to A., injunctions (interim, interlocutory and permanent) restraining the respondents, their officers, servants, employees and agents from:

i.    uploading, disclosing, disseminating or otherwise publishing or causing to be published, the ‘Flitner Allegations’ (as defined in the Concise Statement) or any part of them; and

ii.    communicating to the applicant, its officers, employees or agents (including its legal representatives), whether directly or indirectly, any threat to engage in conduct the subject of B(i) above.

C.    A mandatory injunction requiring the respondents, their officers, servants, employees and agents to remove any matter or material uploaded, disclosed, disseminated or otherwise published or made available for publication by the respondents, their officers, servants, employees or agents, which contains, records or refers to the Flitner Allegations (or any part of them) or their substance.

D.    Orders that:

i.    the affidavit of Lulu Xu affirmed 13 May 2025 and filed in proceeding VID 222/2025 (Xu Affidavit) be removed from the Court’s file in that proceeding;

ii.    the Victorian District Registrar place, or cause to the placed, the Xu Affidavit in a sealed envelope marked “VID 222/2025, Victorian Legal Services Board and Commissioner v Kuksal and Ors, Affidavit of Lulu Xu Affirmed 13 May 2025 removed from court file. Not to be opened or made available for inspection by the public other than by leave of the Court”;

iii.    the envelope referred to in D(ii) above be sealed and stored by the Victorian District Registrar in the Victorian District Registry in a manner and location as decided by the Victorian District Registrar; and

iv.    the respondents file and serve forthwith in proceeding VID 222/2025 a redacted version of the Xu Affidavit (Redacted Xu Affidavit) with the following pages redacted in their entirety (references are to the red page numbering in the top right-hand corner of each page of the Xu Affidavit): 209 to 221, 243 to 255.

E.    Costs.

F.    Such further or other relief as the Court sees fit.

(Emphasis in original.)

8    In that matter the applicant also filed a concise statement on 21 May 2025. In the concise statement the applicant claims that the conduct of the respondents is “calculated, and has a real and definite tendency, to intimidate, harass or otherwise bring improper pressure to bear on the applicant (including its officers, employees or agents including its legal representatives)” in relation to current and future legal proceedings in this Court and the Supreme Court of Victoria in order to:

a.     deter the applicant from prosecuting or defending those legal proceedings (as the case may be); and/or

b.     deter the applicant’s officers, employees or agents from giving evidence in those proceedings [sic]; and/or

c.     influence the evidence that the applicant’s officers, employees or agents may give in those proceedings.

9    In the conduct proceedings the applicant sought interlocutory relief in the following terms:

1.    Pursuant to s 23 of the Federal Court of Australia Act 1976 (Act) and r 1.32 of the Federal Court Rules 2011 (Rules) and upon the applicant’s undertaking as to damages in the usual form, until the conclusion of this proceeding or further order the respondents, their officers, servants, employees and agents be restrained from:

a.    engaging in conduct that is calculated or has a tendency to intimidate, harass or otherwise bring improper pressure to bear on the applicant (including its officers, employees or agents including its legal representatives) in respect of the conduct of any legal proceeding, such as to deter them from prosecuting, defending, acting in or giving evidence in any legal proceeding or influencing their evidence in any legal proceeding;

b.    alternatively to Order 1(a), uploading, disclosing, disseminating or otherwise publishing or causing to be published, any matter, content, statement, threat or allegation that is calculated to or has a tendency to intimidate, harass or otherwise bring improper pressure to bear on the applicant (including its officers, employees or agents including its legal representatives) in respect of the conduct of any legal proceeding, such as to deter them from prosecuting, defending, acting in or giving evidence in any legal proceeding or influencing their evidence in any legal proceeding; and

c.    without limiting Order 1(a) [or, alternatively, Order 1(b)] above, communicating to the applicant, its officers, employees or agents (including its legal representatives), whether directly or indirectly, any threat to engage in conduct the subject of Order 1(a) [or, alternatively, Order 1(b)] above.

2.    Alternatively to Order 1 above, pursuant to s 23 of the Act and r 1.32 of the Rules and upon the applicant’s undertaking as to damages in the usual form, until the conclusion of this proceeding or further order the respondents, their officers, servants, employees and agents be restrained from:

a.    uploading, disclosing, disseminating or otherwise publishing or causing to be published, the ‘Flitner Allegations’ (as defined in the applicant’s concise statement filed in this proceeding) or any part of them; and

b.    communicating to the applicant, its officers, employees or agents (including its legal representatives), whether directly or indirectly, any threat to engage in conduct the subject of Order 2(a) above.

3.    Pursuant to s 23 of the Act and r 1.32 of the Rules and upon the applicant’s undertaking as to damages in the usual form, the respondents (or any of them), their officers, servants, employees and agents remove any matter or material uploaded, disclosed, disseminated or otherwise published or made available for publication by the respondents, their officers, servants, employees or agents, which contains, records or refers to the Flitner Allegations (or any part of them) or their substance and, until the conclusion of this proceeding or further order, refrain from re-uploading, re-disclosing, re-disseminating or re-publishing such matter or material.

4.    Interim orders in the same terms as Order 1 [or, alternatively, Order 2] and Order 3 above, such interim orders to remain in effect pending the hearing and determination of this interlocutory application.

5.    Pursuant to r 2.32(3) of the Rules, the following documents in the proceeding be treated and marked confidential and not be available for inspection by any person not a party to this proceeding:

a.    the Confidential Annexure to the applicant’s concise statement filed in this proceeding;

b.    the Confidential Annexure JH-2 to the affidavit of Jared Heath affirmed 21 May 2025 and filed in this proceeding;

c.    any document filed with the Court that exhibits, attaches or contains the documents referred to in Orders 5(a) and 5(b) above or refers to or records the substance of those documents; and

d.    any document filed with the Court that contains, records or refers to the substance of the Flitner Allegations.

6.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act, until further order publication of the Flitner Allegations (or any part of them) and of any document referred to in Order 5 above be prohibited.

7.    Pursuant to ss 37AF(1)(a) and 37AG(1)(a) of the Act, until further order:

a.    the person referred to in paragraph [1] of the Confidential Annexure to the applicant’s concise statement filed in this proceeding be referred to in connection with this proceeding and in any documents filed in this proceeding only by the pseudonym ‘Person 1’;

b.    the person referred to in paragraph [6] of the Confidential Annexure to the applicant’s concise statement filed in this proceeding be referred to in connection with this proceeding and in any documents filed in this proceeding only by the pseudonym ‘Person 2’; and

c.    publication of any information tending to reveal the identities of Person 1 or Person 2 be prohibited.

8.    Pursuant to r 10.24 of the Rules, the applicant be permitted to effect service on the respondents of the following documents in this proceeding by email at the respondents’ last known email addresses (being: shivesh@wizdomjournal.com; peter@wizdomjournal.com; and lulu@wizdomjournal.com):

a.    the originating application;

b.    the concise statement;

c.    this interlocutory application; and

d.    the affidavit of Jared Heath affirmed 21 May 2025 and its exhibits.

9.    Pursuant to r 2.32(3) of the Rules, the affidavit of Lulu Xu affirmed 13 May 2025 and filed in proceeding VID 222/2025 together with its exhibits/annexures (Xu Affidavit) be treated and marked confidential and not be available for inspection by any person not a party to this proceeding.

10.    Pursuant to rr 2.28, 2.29, 6.01 and 29.03 of the Rules:

a.    the Xu Affidavit be removed from the Court’s file in proceeding VID 222/2025;

b.    the Victorian District Registrar place, or cause to the placed, the Xu Affidavit in a sealed envelope marked “VID 222/2025, Victorian Legal Services Board and Commissioner v Kuksal and Ors, Affidavit of Lulu Xu Affirmed 13 May 2025 removed from court file. Not to be opened or made available for inspection by the public other than by leave of the Court”;

c.    the envelope referred to in order 2(b) be sealed and stored by the Victorian District Registrar in the Victorian District Registry in a manner and location as decided by the Victorian District Registrar; and

d.    the respondents file and serve forthwith in proceeding VID 222/2025 a redacted version of the Xu Affidavit (Redacted Xu Affidavit) with the following pages redacted in their entirety (references are to the red page numbering in the top right-hand corner of each page of the Xu Affidavit): 209 to 221, 243 to 255.

11.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act, until further order publication of the Xu Affidavit, any information contained within or derived from the Xu Affidavit, the redacted parts of the Redacted Xu Affidavit or any information contained within or derived from the redacted parts of the Redacted Xu Affidavit be prohibited.

12.    The respondents pay the applicant’s costs of and incidental to this application.

13.    Such further or other orders as the court sees fit.

EVIDENCE AND SUBMISSIONS

10    In the conduct proceedings, the applicant relied on the originating application filed 21 May 2025, the concise statement filed 21 May 2025, and the interlocutory application in the conduct proceeding filed 21 May 2025. The applicant relied on an interlocutory application in the bankruptcy proceedings, filed 21 May 2025. The applicant also relied on an affidavit of Mr Jared Heath, a partner at Corrs Chambers Westgarth, the solicitors for the applicant, affirmed 21 May 2025. Mr Heath gave evidence on information and belief.

11    Mr Kuksal objected to the Court having regard to Mr Heath’s affidavit including that it was based on hearsay, and that much of Mr Heath’s affidavit was not relevant. Mr Kuksal maintained that it would scandalise the Court to rely on “hearsay allegations of a very serious nature” against him and further that the affidavit was an attempt to subvert an order made by the Supreme Court of Victoria. He further maintained that no ruling about evidence could be made until he had made detailed submissions about the balancing exercise the Court was required to undertake.

12    As is more fully explained below, interim orders were made before Mr Kuksal made further detailed submissions regarding the admissibility of Mr Heath’s evidence. I am satisfied that the affidavit evidence was relevant for the purpose of the hearing for interim interlocutory relief. The hearsay rule does not apply to evidence in an interlocutory hearing, where “the party who adduces it also adduces evidence of its source”: s 75 of the Evidence Act 1995 (Cth). To the extent that Mr Kuksal objected to the evidence on the basis that it was third-hand hearsay it is established that hearsay in this context is not limited to first-hand hearsay: Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 4) (2012) 298 ALR 251; [2012] FCA 1323 at [116].

13    Mr Heath’s affidavit refers to Mr Matthew Anstee, the Executive Director, Legal and Investigations employed by the Victorian Legal Services Commissioner. It sets out that Mr Anstee’s role has “oversight over all litigious and regulatory matters” between the applicant and the respondents, as well as dealing with “disciplinary matters arising under the Application Act and the Uniform Law”, “undertaking compliance audits and issuing management system directions” and “the appointment of external interveners to law practices”. Mr Heath’s affidavit goes on to set out information he received from Mr Anstee, and believes, as to investigative activities relating to the respondents. He then deposes to litigation variously between the Victorian Legal Services Board, the Victorian Legal Services Commissioner and the respondents, both in the past and currently. As well, Mr Heath deposes to relief obtained by the Victorian Legal Services Board against the respondents in certain of the litigation.

14    Central to this matter are what are described in Mr Heath’s affidavit as the Flitner Allegations. They comprise an email from Mr Flitner to Mr Kuksal (the Flitner email) and a letter from Mr Ansell to the members of the Victorian Legal Services Board, and each of a solicitor and a barrister (the Ansell letter). The Flitner email and the Ansell letter (together the Flitner allegations) contain allegations about a person employed at the Victorian Legal Services Board by the Commissioner (Person One) which Mr Heath deposes are “scandalous, embarrassing and reputationally damaging”. The Flitner allegations include a description of explicit videos. The Flitner email and the Ansell letter are attached to Mr Heath’s affidavit as part of a confidential annexure.

15    The Ansell letter more broadly sets out a number of grievances that the respondents to this matter and others, including Mr Flitner, have with the applicant. The Ansell letter foreshadows the bringing by the respondents of contempt proceedings against the first applicant in the bankruptcy proceedings and other matters. In that context the Ansell letter accuses the applicant of moving to prevent the respondents (and others) bringing to light what might broadly be described as corruption and collusion on the part of the applicant and others not parties to this matter.

16    The Flitner allegations also refer to the alleged conduct of a second person employed by the board (Person Two).

17    At [24] – [25] of his affidavit Mr Heath deposes as follows:

24.     The Flitner Allegations have no apparent relevance or connection to:

(a)    Mr Kuksal, Mr Ansell or Ms Xu;

(b)    any action or investigation taken by the Board in relation to Mr Kuksal, Mr Ansell or Ms Xu or any legal practice in which they have ever been engaged or with which they have ever been associated; and

(c)    any of the facts, matters or circumstances which are the subject of the legal proceedings referred to in Part C and Part D of this affidavit.

25.     Neither Mr Flitner, nor Person 1, nor Person 2 are parties to any of the legal proceedings referred to in Part C and Part D of this affidavit, and nor do I consider them to be relevant witnesses in any of those proceedings.

(Emphasis in original.)

18    Despite that, according to Mr Heath’s affidavit, the following occurred:

    Mr Ansell sent an email (the Ansell email) attaching the Flitner email and the Ansell letter to the Chambers of a Federal Court Judicial Registrar;

    The respondents filed or caused to be filed an affidavit of Ms Xu (the Xu affidavit) which referred to the Flitner allegations and exhibited copies of the Flitner email and the Ansell letter;

    Ms Xu sent an email (the Xu email) attaching a copy of her affidavit to the Chambers of the Judge to whom at the time the matter was allocated as well as sent emails to various email addresses of the Supreme Court of Victoria attaching copies of the Flitner email and Ansell letter; and

    Mr Kuksal sent an email attaching the Xu affidavit to various email addresses in the Supreme Court of Victoria.

19    Mr Heath also deposes that:

    The Ansell letter, the Ansell email and the Xu email threatened that the respondents would rely on the Flitner allegations in the bankruptcy proceedings, file an affidavit in those proceedings annexing the Flitner email and the Ansell letter and file affidavits annexing the Flitner email and the Ansell letter in proceedings in the Supreme Court of Victoria;

    The Ansell letter, the Ansell email and the Xu email contain threats to further disseminate the Flitner allegations either by filing other documents “recording, containing or referring to the Flitner Allegations” or sending them to the Chambers of the Chief Justice of the Federal Court, the Chief Justice of the Supreme Court of Victoria, the Chambers of Judicial Registrar Ellis of the Federal Court and the Chambers of the Honourable Justice Gorton of the Supreme Court of Victoria; and

    The Ansell letter, the Ansell email and the Xu email also contained threats to bring contempt proceedings against the applicant and others in the Supreme Court of Victoria and the Magistrates Court of Victoria, and in those proceedings to rely on the Flitner allegations and file an affidavit of Mr Flitner containing the Flitner allegations.

20    Further, Mr Heath deposes that on 20 May 2025 [sic], Ms Xu sent an email to the Chambers of the Honourable Justice Bennett of this Court entitled “The Respondents’ Affidavits and Authorities” which he understood to attach a Dropbox link that contained an audio recording of a phone call between Mr Kuksal and Mr Flitner in which they “discuss their intention to disseminate and publish the Flitner Allegations, including through the media”.

21    Mr Heath continues, deposing that the threatened further circulation of the Flitner allegations has the potential to cause considerable harm. Mr Heath has been informed by Mr Anstee, and believes, that Mr Anstee, the members of the Victorian Legal Services Board, and the Victorian Legal Services Commissioner have considered the health and safety of its employees. Mr Heath has been informed by Mr Anstee of Mr Anstee’s concerns for the “emotional wellbeing” and “personal and professional reputation” of Person One who is “deeply distressed by the circulation and threatened further circulation of the Flitner Allegations” by the respondents. Those concerns arise in the context of the obligations Mr Anstee and the Victorian Legal Services Board have with respect to the health and safety of the applicant’s employees.

22    Mr Heath also deposes:

Part G: Impact upon the Board’s regulatory and law enforcement functions

33.     I am also informed by Mr Anstee and believe that in his role at the Board as Executive Director, Legal & Investigations, the potential disclosure or use of the Flitner Allegations is a matter to which he considers he is required to have regard in considering the best course of action to be taken by the Board as a regulatory agency under the Uniform Law in matters involving Mr Kuksal, Mr Ansell and Ms Xu.

34.     I also believe Mr Anstee’s view to be reasonable as it is apparent to me that Mr Kuksal, Mr Ansell and Ms Xu intend to disclose, disseminate, publish and use the Flitner Allegations to advance their interests in the legal proceedings the subject of Part C and Part D of this affidavit, and in the Foreshadowed Contempt Proceeding, regardless of:

(a)    the relevance or probative value of the Flitner Allegations to any particular proceedings between the Board and the Kusal parties; or

(b)    the harm which such disclosure, dissemination, publication or use might cause to:

i. Person 1;

ii. Person 2;

iii. the Board; and

iv. other officers or employees who might fear similar allegations or actions by Mr Kuksal or others against them,

which is likely to adversely affect the performance of the Board’s regulatory functions under the Application Act and Uniform Law, their exercise of the powers delegated to them by the Board and Commissioner, and their health and wellbeing.

35.     It is also apparent to me that Mr Kuksal, Mr Ansell and Ms Xu, by purporting to deploy, disclose, disseminate, publish and use the Flitner Allegations irrespective of the relevance of those allegations to any matters in dispute between Mr Kuksal, Mr Ansell, Ms Xu and the Board, are seeking to embarrass the Board and exert improper pressure on the Board and the Board’s employees, officers and agents (including the Board’s legal representatives), in order to:

(a)    deter the Board from pursuing or defending legal proceedings between the Board and Mr Kuksal, Mr Ansell and Ms Xu;

(b)    deter the Board’s officers, employees or agents from giving evidence in such legal proceedings; and

(c)    influence any evidence that the Board’s officers, employees or agents may give in such legal proceedings.

(Emphasis in original.)

23    Lastly, Mr Heath deposes that, on behalf of the applicant, he sought undertakings from the respondents “not to further publish, disclose or disseminate the Flitner Allegations” and “not to engage in conduct calculated to intimidate, harass or exert improper pressure on the applicant, its employees and agents”. Mr Heath deposes that by the time of affirming his affidavit no such undertaking, nor an indication that one would be given, had been received by the applicant.

24    The applicant’s submissions were that by filing the affidavits which incorporate the Flitner allegations and making threats to publish them more broadly, including to the media, the respondents were engaging in conduct which both threatens to abuse the processes of this Court and of the Supreme Court of Victoria, and threatens to commit a contempt of court. The applicant also submitted that the making of the threats contained in the exhibits to Mr Heath’s affidavit would affect the applicant’s ability to carry out its functions and undertake its work, including conducting proceedings, by for example intimidating potential witnesses. The applicant as well submitted that Person One and Person Two have been specifically targeted and the applicant had concerns especially regarding harm to Person One should further dissemination of the material occur.

25    As to whether there is a serious question to be tried, the applicant directed the Court to the concise statement filed in the conduct proceedings which refers to the threats referred to in Mr Heath’s affidavit and alleges that the respondents are threatening to engage in conduct which amounts to an abuse of process in multiple Court processes and contempt of Court. The applicant contended that the threats:

amount to harassing, intimidating, or otherwise placing improper pressure on a litigant in order to (a) deter them from prosecuting or defending an action, (b) deterring them from giving evidence in a proceeding, and (c) influencing the evidence that they might give.

26    On the applicant’s case they are “made in the context of extant litigation and the allegations also have no legitimate forensic purpose”.

27    The applicant’s concise statement also sets out:

To the extent that the Flitner Allegations concern alleged conduct by the applicant or its officers, employees, or agents, the relevant alleged conduct exclusively concerns Mr Flitner and does not involve conduct directed to or concerned with any of the respondents, nor their officers, employees, agents, or related parties.

28    Further, the concise statement sets out that neither Mr Flitner, nor Person One or Person Two are parties to, or relevant witnesses in, the extant proceedings. Thus, the concise statement alleges that the respondents’ conduct amounts to threats to abuse the processes of the Court or engage in conduct that constitutes contempt of Court.

29    On the basis of Mr Heath’s affidavit the applicant submits that there is ample evidence which establishes that there is a serious question to be tried.

30    With respect to the balance of convenience, the applicant submitted that the nature of the harm is “very significant” given the content of the allegations. It further submitted that this conduct threatens the applicant’s ability to carry out its functions in such a way that its staff are not threatened by the dissemination of this sort of material to the wider public. This is particularly so, the applicant contended, in circumstances where once the material is further disseminated it cannot be recalled. The applicant submitted that in circumstances where an interim injunction is being sought it is difficult to see what prejudice will be suffered by the respondents.

31    As to the orders sought, the applicant submitted that it is not seeking injunctive relief impacting the jurisdiction of the Supreme Court of Victoria, nor directed to any particular proceedings in that Court. Rather, it seeks to prevent conduct. The applicant emphasised in its submissions that the relief was sought only pending the hearing of the interlocutory injunction. In seeking the relief, the applicant referred the Court to Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) (2015) 236 FCR 432; [2015] FCA 762, Registered Clubs Association of New South Wales v Stolz (No 2) (2021) 157 ACSR 465; [2021] FCA 1418, and Y and Z v W (2007) 70 NSWLR 377; [2007] NSWCA 329.

32    Mr Kuksal’s submissions were wide ranging. He told the Court that he has a not-for-profit organisation that assists people to bring “allegations of corruption against the government” and he is especially focused on raising allegations regarding the applicant and collecting evidence of its “systemic corruption”. He claimed, inter alia, that by their conduct the applicant had “oppressed” and “persecuted” the respondents and as such the respondents urgently need relief.

33    Mr Kuksal asserted that this Court did not have jurisdiction to hear the matter. He pointed to ss 39B, 55A, 55B, 55D, 64 and 78 of the Judiciary Act 1903 (Cth) in that regard and relied upon Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48 and APLA Ltd & Ors v Legal Services Commissioner of New South Wales & Anor (2005) 224 CLR 322; [2005] HCA 44. He submitted, correctly, that the Federal Court had no jurisdiction with respect to the Supreme Court of Victoria. According to Mr Kuksal’s submissions, the dissemination of the material the subject of the application had already occurred, such that an injunction could not be enforced. Therefore, Mr Kuksal submitted, to grant an injunction would bring the “administration of justice into disrepute”. Mr Kuksal also submitted that the contempt proceedings must be brought in the same proceedings as those in which the alleged contempt occurred.

34    Mr Kuksal’s primary point was that the applicant’s injunctive relief was designed to prevent the respondents from bringing contempt proceedings in the Supreme Court of Victoria and relying on critical evidence in such proceedings. Mr Kuksal contended that the material the subject of the interlocutory injunction went to the core of the respondent’s contempt proceedings as to the fitness of the Victorian Legal Services Commissioner and employees of the applicant to occupy their roles, the “contentious perversion of the course of justice by the board” and that the employees of the Victorian Legal Services Board “do not possess the character commensurate with manifesting public sector values”.

35    In the context of Mr Kuksal’s claim that the applicant was seeking to prevent the respondents bringing proceedings, he stated that the applicant’s conduct was “unfounded”, “extraordinary” and “improper”. He contended that the conduct of the applicant in bringing the application was itself contempt and that it has only been brought responsive to the applicant learning that it would be held accountable for its actions by way of complaints made to the Independent Broad-based Anti-Corruption Commission (IBAC) and the Victorian Public Service Commission, and the potential proceedings against it in the Supreme Court of Victoria.

36    Mr Kuksal also submitted that the application for an injunction was an “improper attempt at subverting our fundamental right that’s guaranteed under the Constitution to engage in political speech”, citing Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25, Colman v Power (2004) 220 CLR 1; [2004] HCA 39, Unions NSW& Ors v State of New South Wales (2019) 264 CLR 595; [2019] HCA 1 and a number of other authorities.

37    Furthermore, Mr Kuksal contended that the orders sought could not objectively be seen as appropriate for their purpose; in his submission what the applicant was seeking to protect is the reputation of Person One in respect of a defamation claim. To that end Mr Kuksal submitted that all the arguments were brought on behalf of an employee who is not a party to the proceedings on the basis that such an employee will be irreparably harmed.

38    Mr Kuksal also challenged the veracity of Mr Heath’s affidavit, took exception to the method of service and did not concede “the propriety of the court making a pseudonym order” although did agree to use a pseudonym to refer to Person One during the hearing.

39    Mr Kuksal’s submissions made it clear that he feels much aggrieved by the applicant bringing this application, and more broadly.

40    Mr Kuksal objected to the urgency with which the interim injunction was sought – he submitted that the applicants have known about the material about which they now complain since 7 May 2025 and that they have been aware of the substance of its contents since 2024.

41    Throughout the hearing Mr Kuksal was insistent that the respondents needed to place affidavits before the Court. Therefore, at the conclusion of applicant’s submissions the matter was stood down to enable that to occur, but after quite some time it became clear that while affidavits of Mr Flitner and Ms Xu had been received by the Court it was not possible for the Court to obtain access to the substantial volume of exhibits despite extensive efforts being made including from the Court’s after hours IT service.

42    At the resumption of the hearing Mr Kuksal sought an adjournment. He submitted that the respondents had been ambushed by the proceeding. He submitted that the respondents wished to consider and coordinate their submissions and that an adjournment was necessary given the volume of material relied upon in respect of which the respondents have neither been given notice, contrary to what he maintained was stated in Mr Heath’s letter of 20 May 2025, nor had they been given a fair opportunity to consider them. In that regard, Mr Kuksal submitted that the applicant did not come with “clean hands”. Mr Kuksal also submitted that he had not eaten all day and was not in the best position to make submissions.

43    Against that background however Mr Kuksal reiterated that the respondents could not give short-term undertakings, for example until the following day, which would have enabled them to be more prepared and allowed the Court to resolve the difficulties it was having obtaining access to the exhibits. Mr Kuksal submitted that he could not give an undertaking because he had already communicated with parliamentarians and organised meetings.

44    Eventually the respondents offered limited undertakings in the following terms:

… I’m happy to give an undertaking. The other respondents are keen to give the undertaking as well, without the court needing to decide jurisdiction, about the non-publication of just the explicit videos and the non-provision of those videos to anybody except IBAC and the VPSC, at this stage, until at least four weeks, and after four weeks, to IOB and to – that’s Integrity Oversight Victoria – and to the Integrity Oversight Committee of the Victorian Parliament. After four weeks from now, if IBAC has not adequately investigated the matter, to complain about the IBACs failure to investigate. But other than that, we have no interest in that particular content.

45    Those undertakings fell far short of the interim relief sought by the applicant, going only to the explicit videos referred to and not encompassing the allegations. The applicant submitted that the undertakings offered were not such that they could consent to an adjournment.

46    In the circumstances, and for the reasons that follow, I made interim orders.

CONSIDERATION

47    The test for the grant of an interlocutory injunction is well-established. It requires that the applicant show that there is a prima facie case or serious question to be tried: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65], quoting Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 – 623. Whether there is a serious question to be tried involves the Court being satisfied that the applicant has a sufficient case to justify the preservation of the status quo. The Court must also consider the balance of convenience as between the parties, that is, whether the harm suffered if the injunction is not granted outweighs the harm the respondent will suffer if it is: O’Neill at [65], quoting Beecham at 622 – 623. It is also well-established that the two issues are not considered in isolation; they are “related inquiries”: Samsung Electronics Company Ltd v Apple Inc & Anor (2011) 217 FCR 238; [2011] FCAFC 156 at [52] – [74].

48    At [31] of Basetec, White J helpfully summarised relevant principles which appeared in Y and Z v W, as follows:

Leighton put at the forefront of its submissions the prospect that Mr Figallo will commit a contempt of court unless restrained from doing so. It placed considerable reliance upon Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 and, in particular, the statement by Ipp JA of the following principles:

(1)    The court has jurisdiction to grant an interlocutory injunction restraining a threatened contempt of court;

(2)    Misusing the court’s processes, at least when other parties are thereby prejudiced, may amount to a contempt;

(3)    It is a contempt of court to obstruct the due administration of justice by attempting to induce a settlement of an action by improper threats or intimidation;

(4)    The bringing of improper pressure on a party to collateral proceedings amounts to a contempt of court (involving the obstruction of the due administration of justice) irrespective of whether or not the pressured party is, in fact, deterred from litigating;

(5)    In a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case.

49    While the applicant relied on Basetec as an example of the framing of orders in cases of this kind, that case also refers to a number of principles relevant to these circumstances. Basetec involved litigation between the applicant, Basetec Services Pty Ltd an environmental engineering business and the respondent, Leighton Contractors Pty Ltd: Bastec at [1] – [3]. Basetec’s sole director, secretary and ultimate shareholder was Mr Charles Figallo, who had disclosed information to “numerous persons” which had been shared during a confidential mediation between the “Leighton side”, Mr Figallo, his son Mr Paul Figallo and Basetec’s in-house solicitor in relation to proceedings which had been commenced by Basetec Services against Leighton: Basetec at [3], [5], [8] – [9] and [11]. At [10] of Basetec, White J stated that the respondent sought the injunctions in order to:

…restrain Mr Figallo from engaging in two kinds of actions: first, placing improper pressure on it to settle the action, by communicating threats to publish material disparaging the conduct of Leighton and its officers, employees and agents in the proceedings, and by making personal threats to individuals employed by it; and, secondly, from disseminating information communicated in the course of the mediation or on a without prejudice basis or otherwise in connection with attempts to settle the proceedings.

50    As White J explains in Basetec at [35] and [36]:

In assessing whether Leighton has established its case to that extent, a number of considerations are, in my opinion, pertinent. These include the importance of the public interest in freedom of speech. See Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [31]. The freedom is not absolute, but it is a freedom which the Court does not lightly restrain by injunction. As Gleeson CJ and Crennan J observed at [32], it is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech; it is another matter for a Court to interfere with the right of free speech by a prior restraint.

Their Honours also referred to the exceptional caution with which the power to grant an interlocutory injunction in [sic] defamation cases is exercised. However, the authorities show that the Court does not have that same caution about intervening when the issue is a contempt or threatened contempt of the Court.

51    His Honour also acknowledged the importance of the public interest in the circumstances of the case: Basetec at [37] – [38]. White J at [46] acknowledged that issues such as freedom of speech and the public interest might militate against the granting of interlocutory injunctions: Basetec. His Honour none-the-less granted injunctions for the following reasons at [47] – [50]:

First, there is Mr Figallo’s disparagement of the Courts and of members of the judiciary in his communications. I have not set out in these reasons his statements of that kind. While the Courts can be expected to accept criticism from time to time, some of Mr Figallo’s comments about the Courts and about members of the judiciary appear to be contemptuous in that they imply that the Courts are willing to act at the bidding of Leighton, rather than acting impartially. Conduct of this kind can be contempt: Gallagher v Durack (1983) 45 ALR 53.

I also think it very pertinent that Mr Figallo has not, even when faced with Leighton’s present application, made any acknowledgment of the wrongfulness of his conduct or any statement of willingness to modify it.

If, as his counsel suggested, the communications commencing on 30 June were merely a manifestation of a temporary emotional upset, it would have been natural for Mr Figallo to have recognised that and for him to have stated his intention not to continue communications of that kind. Instead, as I have already indicated, Mr Figallo has made it plain, that unless restrained by the Court, he will continue to make statements of the same kind. He may be sincere when he says that he feels that it is his duty to do so, but that does not give the Court any comfort that Mr Figallo will not continue his conduct. On the contrary, the stated intention of Mr Figallo is to continue statements which, to use the language of Hunt J in Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554, constitute a form of public abuse or obloquy and which may well amount to a contempt of the Court.

Thirdly, it is apparent that, despite the advice of Basetec’s own solicitors, Mr Figallo has not tempered his conduct.

52    In my view the applicant has established by its evidence that there is a serious question to be tried with respect to the threatened abuse of the Court’s processes and threatened contempt of Court. I have reviewed the Flitner allegations and accept that they are on their face scandalous, embarrassing and reputationally damaging. I have listened to the audio annexed to Mr Heath’s affidavit and am satisfied that it contains a clear intention to further disseminate the Flitner allegations. In my view it does not contain an explicit statement reflecting an intention to publish the Flitner allegations to the press, but it may be that such an intention is implied. It is clear from the audio that Mr Kuksal and the respondents intend to more broadly disseminate the Flitner allegations, including the explicit videos and that intention has also been stated by Mr Kuksal from the bar table.

53    Turning to the balance of convenience, it is clear in this case that in the context of an interim injunction the risk of harm to the applicant far outweighs the risk of harm to the respondents. If the material about which the applicants have applied is further disseminated it cannot be recalled. However, if after a further hearing the orders are vacated or substituted, it is difficult to see what harm will be suffered by the respondents. This is especially so when the orders referring the whole of the proceedings to the National Operations Registrar for allocation to a docket Judge note that the matter requires an urgent hearing.

54    The applicant sought orders in the alternative. At the hearing, the applicant pressed for orders which would restrain the respondents from engaging in the alleged conduct “in respect of the conduct of any legal proceeding”. This could extend beyond legal proceedings brought in this Court. In G & J Gears Australia Pty Ltd v Brobo Group Pty Ltd (2006) 229 ALR 638; [2006] FCA 330 at [63], Kenny J made it clear that with respect to an abuse of process “the implied incidental power of this court to protect misuse of its process does not extend to protecting the process of the State’s Supreme Court” and that “[t]hat is a matter for the Supreme Court”. As the power to deal with contempt is conferred on the Court by s 31 of the Act when considered in light of s 24 of the Judiciary Act, this power extends to proceedings brought within this Court only. On that basis I made orders of a narrower compass. I am satisfied that the orders made are appropriate in the circumstances of this case.

55    Therefore, whilst not satisfied that the wider form of orders pressed by the applicant should be made, I was satisfied, with respect to the conduct constituting a threatened abuse of the Court’s processes and a threatened contempt of Court, that orders in narrower compass should be made to preserve the status quo. I otherwise made orders in the terms of the draft orders provided by the applicant at the hearing.

56    The orders made were:

THE COURT NOTES THAT:

Orders 1 to 3 below are made upon the applicant’s undertaking to:

(a)    submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not that person is a party) affected by the operation of Orders 1 to 3 or any continuation (with or without variation) of those orders; and

(b)    to pay the compensation referred to in (a) above to the person affected by the operation of Order 1 to 3.

THE COURT ORDERS THAT:

1.    Pursuant to s 23 of Federal Court of Australia Act 1976 (Cth) (Act) and r 1.32 of the Federal Court Rules 2011 (Cth) (Rules), until the hearing and determination of the Interlocutory Application or further order, the respondents, their officers, servants, employees and agents are restrained from:

(a)    uploading, disclosing, disseminating or otherwise publishing or causing to be published, the ‘Flitner Allegations’ (as defined in the applicant’s concise statement filed in this proceeding) or any part of them; and

(b)    communicating to the applicant, its officers, employees or agents (including its legal representatives), whether directly or indirectly, any threat to engage in conduct the subject of Order 2(a) above.

2.    Pursuant to s 23 of the Act and r 1.32 of the Rules, until the hearing and determination of the Interlocutory Application or further order, the respondents (or any of them), their officers, servants, employees and agents shall remove any matter or material uploaded, disclosed, disseminated or otherwise published or made available for publication by the respondents, their officers, servants, employees or agents, which contains, records or refers to the Flitner Allegations (or any part of them) or their substance and, refrain from re-uploading, re-disclosing, re-disseminating or re-publishing such matter or material.

3.    Pursuant to r 2.32(3) of the Rules, the following documents in the proceeding are to be treated and marked confidential and shall not be available for inspection by any person not a party to this proceeding:

(a)    the Confidential Annexure to the applicant’s concise statement filed in this proceeding;

(b)    the Confidential Annexure JH-2 to the affidavit of Jared Robert Heath affirmed 21 May 2025 and filed in this proceeding;

(c)    the Confidential Annexure JH-3 to the affidavit of Jared Robert Heath affirmed 21 May 2025 and filed in this proceeding;

(d)    any document filed with the Court that exhibits, attaches or contains the documents referred to in Orders 4(a) and 4(b) above or refers to or records the substance of those documents; and

(e)    any document filed with the Court that contains, records or refers to the substance of the Flitner Allegations.

4.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act, until the hearing and determination of the Interlocutory Application or further order, publication of the Flitner Allegations (or any part of them) and of any document referred to in Order 4 above is prohibited.

5.    Pursuant to ss 37AF(1)(a) and 37AG(1)(a) of the Act, until the hearing and determination of the Interlocutory Application or further order:

(a)    the person referred to in paragraph [1] of the Confidential Annexure to the applicant’s concise statement filed in this proceeding shall be referred to in connection with this proceeding and in any documents filed in this proceeding only by the pseudonym ‘Person 1’;

(b)    the person referred to in paragraph [6] of the Confidential Annexure to the applicant’s concise statement filed in this proceeding shall be referred to in connection with this proceeding and in any documents filed in this proceeding only by the pseudonym ‘Person 2’; and

(c)    publication of any information tending to reveal the identities of Person 1 or Person 2 is prohibited.

6.    Pursuant to r 10.24 of the Rules, the applicant is permitted to effect service on the respondents of the following documents in this proceeding by email at the respondents’ last known email addresses (being: shivesh@wizdomjournal.com; peter@wizdomjournal.com; and lulu@wizdomjournal.com):

(a)    the originating application;

(b)    the concise statement;

(c)    this interlocutory application; and

(d)    the affidavit of Jared Heath affirmed 21 May 2025 and its exhibits.

7.    Service pursuant to Order 7 above is taken to have been effected by the emails from Jared Robert Heath of Corrs Chambers Westgarth sent to each of the respondents at 11:23am AEST and 12:18pm AEST and 12:19pm AEST on 21 May 2025.

8.    Pursuant to r 2.32(3) of the Rules, until the hearing and determination of the Interlocutory Application or further order, the affidavit of Lulu Xu affirmed 13 May 2025 and filed in proceeding VID 222/2025 together with its exhibits/annexures (Xu Affidavit) shall be treated and marked confidential and shall not be available for inspection by any person not a party to this proceeding.

9.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act, until the hearing and determination of the Interlocutory Application or further order, any information contained within or derived from the Xu Affidavit, the redacted parts of the Redacted Xu Affidavit or any information contained within or derived is prohibited.

10.    Costs in the proceeding.

(Emphasis in original.)

57    After the hearing it came to my attention that those orders contained several minor errors, including reference to relief referred to in the interlocutory application filed but not in the draft orders provided by the applicant at the hearing, and a definition was omitted. Such orders may be varied in certain circumstances.

58    Rule 39.05 of the Rules enables the Court to vary orders once entered, and reads as follows:

39.05 Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

59    In this context, r 39.05(h) of the Rules is relevant. It reflects the common law “slip rule”, previously dealt with by a predecessor (O 35, r 7) of r 39.05(h) of the Rules: Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd (No 2) (2012) 209 FCR 123; [2012] FCA 1404 at [4]. The statements by Gilmour J at [6] – [7] of Mammoet Australia are useful:

In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 389 (Elyard Corporation), Lockhart J stated, citing Milson v Carter [1893] AC 638 at 640, that O 35, r 7 “reflects the inherent or implied jurisdiction of a superior court of record ‘at any time to correct an error in a decree or order arising from an accidental slip or omission’”. Section 5(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that the Court, being the Federal Court, is a superior court of record.

In Elyard Corporation, Lockhart J at 389-392 stated as follows:

The rule [O 35, r 7 of the 1979 Rules] is very wide in its scope; but is not available as a matter of course: Shaddock at [597] [sic].

Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended. Indeed, after a decree or order has been passed and entered a court will not, unless by consent, permit it to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions.

. . .

The slip rule applies where the proposed amendment is one upon which no real difference of opinion can exist. It does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision: see Arnett v Holloway [1960] VR 22; Re Army and Navy Hotel (1886) 31 Ch D 644 and Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642.

The slip rule may be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter at 640; Fritz v Hobson (1880) 14 Ch D 542 at 560; Shaddock at 594-595 per Mason ACJ, Wilson and Deane JJ; Gould v Vaggelas (1985) 157 CLR 215 and Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300; [1973] 1 All ER 569.

It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the Court would have had, but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356. The rule also extends to permit the correction of an order or decree where the omission results from the inadvertence of a party’s legal representative: Fritz v Hobson at 561-562; Chessum & Sons v Gordon [1901] 1 KB 694; Tak Ming Co Ltd at 304; Shaddock per Mason ACJ, Wilson and Deane JJ; and Gould v Vaggelas at 274-275.

. . .

An exercise of the power of the court under the slip rule is ultimately to avoid injustice.

60    The errors and omissions arose as a result of referring to the draft orders provided at the hearing and cast in the alternative. None of them alter the substantive relief granted or decision made. Some are minor typographical errors. The errors in the cross referencing to other orders are obvious errors. The inclusion of a definition describing the interlocutory application, which was granted, and which was defined in the applicant’s orders in the first unused alternative clarifies the source of relief which was granted. This cannot be controversial in circumstances where two interlocutory applications were brought by the applicant. The parties are entitled to know, with particularity, which interlocutory application was granted. The reference to the Redacted Xu Affidavit has been deleted as, unlike the orders sought in the application for interlocutory relief which was filed, no relevant order was sought in the draft orders provided by the applicant.

61    A copy of the orders bearing the marked-up changes is attached to the judgement as Schedule 1.

Associate:

Dated:    28 May 2025

SCHEDULE 1