Federal Court of Australia

Victorian Legal Services Board v Kuksal (No 2) [2025] FCA 646

ORDERS

THE COURT ORDERS THAT:

1.    By 27 June 2025, the parties file and serve written submissions limited to 10 pages on the issue of whether it is necessary for the Court to hear and determine the application which is MFI-1 before the hearing of the creditor’s petition.

2.    The creditor’s petition is listed for hearing at 9.30 am on 28 and 29 July 2025 in Melbourne.

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

REASONS FOR JUDGMENT

DOWNES J

1    This proceeding was commenced by a creditor’s petition which was accepted for filing on 28 February 2025. On 3 April 2025, a Registrar of this Court made directions concerning affidavit material and submissions and fixed the creditor’s petition for hearing at 9.30 am on 8 May 2025. On 8 May 2025, the Registrar vacated the hearing and transferred the proceeding to a judge.

2    On 15 May 2025, another judge of this Court heard a recusal application and, as a consequence of that application, recused herself: Victorian Legal Services Board v Kuksal [2025] FCA 508.

3    The proceeding was then allocated to another judge of this Court who was asked to recuse himself on the basis that there was a conflict in his hearing the matter due to another matter that he had been involved in. That judge caused the matter to be re-allocated.

4    On 11 June 2025, the matter was re-allocated to my docket. I caused this matter to be listed for a case management hearing today, 17 June 2025. The parties were requested to provide draft orders and any affidavit material not yet filed by 2.00 pm on 16 June 2025.

5    In response to that request, the applicants provided available dates for the hearing of the creditor’s petition which were included in their draft order. The respondents did not respond to that request with either a draft order or any further affidavit material. Instead, the respondents sent numerous emails to my chambers which included various attachments and embedded links. As is my usual practice, I did not have regard to these ex parte communications. I also directed my chambers staff not to open the embedded links in those emails or print out any of the attachments which came with those emails.

6    Today’s case management hearing was due to commence at 9.30 am. Prior to that, my associate and I were engaged in a case management hearing in another matter. At 9.11 am, the respondents transmitted another email to my associate which attached (inter alia) an interlocutory application. A further email was sent at 9.28 am, attaching an amended version of that interlocutory application. Neither email was seen by my associate until after 9.30 am. The (amended) interlocutory application became “MFI-1” as it did not appear on the electronic court file by the time that the hearing was in progress.

7    According to counsel who appeared for the applicant, she had only seen the interlocutory application for the first time at or shortly after the commencement of the case management hearing as well.

8    For these reasons, and as the interlocutory application was not yet appearing on the electronic court file, it was not appropriate to either deal with the application at the case management hearing or to hear submissions from the parties as to whether the interlocutory application should be heard and determined before the creditor’s petition, as was sought by the respondents.

9    While some submissions were made by counsel for the applicants, it was apparent that the applicants needed more time to address the matters raised in the interlocutory application. I also wished to hear from both parties as to why it was necessary to defer hearing the creditor’s petition until after the matters in the interlocutory application had been addressed. For that reason, I made an order that the parties file and serve submissions on that issue limited to ten pages. Although I did not hear from the parties on the issue of how long they would need to file and serve their submissions, it seemed to me that a period of ten days would be sufficient.

10    I note that the submissions referred to in the order are not as to why the relief sought in the interlocutory application should be granted. Rather, they are submissions as to why the interlocutory application should be heard and determined prior to the creditor’s petition.

11    Upon returning to chambers, the respondents sent an email requesting further time to file and serve submissions and, subject to hearing from the applicants, I am prepared to accede to that request. By their email, the respondents also seek directions about filing an application that I recuse myself. If the respondents wish to make that application, then they can file and serve it without a direction from me.

12    The second order that I made was to set the creditor’s petition down for hearing on 28 and 29 July 2025, being dates which suited the applicants’ counsel and which were not the subject of objection by the respondents.

13    As the creditor’s petition was filed on 28 February 2025, it is appropriate and indeed important that it be listed for hearing as expeditiously as possible: see, generally, Australia and New Zealand Banking Group Limited v James [2021] FCA 768 at [48]–[49] (Cheeseman J).

14    Although the creditor’s petition could have been listed at an earlier date, the dates which were chosen allow the issue of whether the interlocutory application should be heard and determined prior to the creditor’s petition to be addressed before the hearing of the creditor’s petition.

15    As I indicated during the hearing, if a determination is made that the interlocutory application has the result that the creditor’s petition cannot proceed on 28 and 29 July 2025, then those dates could be vacated. In listing the creditor’s petition for hearing, I have not formed a view on the merits of any interlocutory application to be brought prior to those dates.

Associate:

Dated:    17 June 2025

SCHEDULE OF PARTIES