Sethi v Cho (No 3) [2023] NSWSC 1309

Supreme Court New South Wales

Medium Neutral Citation: Sethi v Cho (No 3) [2023] NSWSC 1309 Hearing dates: 3 November 2023 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Equity Before: Henry J Decision: (1) Grant leave to the plaintiff to file in Court the affidavit of Akhil Sethi dated 3 November 2023. (2) Refuse the plaintiff's application to adjourn the hearing listed on 3 November 2023 in relation to the plaintiff's notice of motion filed on 20 September 2023, the plaintiff's oral application made on 13 October 2023 objecting to Hicksons Lawyers representing the defendant and the defendant's application to set aside the notice to produce dated 17 October 2023 issued by the plaintiff. Catchwords: CIVIL PROCEDURE — Hearings — Adjournment — Relevant factors — Where short adjournment granted on last occasion — Where plaintiff did not comply with the Court's directions — Where plaintiff seeks time to receive a response from subpoenas, letters of demand and a notice to produce issued by him to complete evidence and submissions Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Hamod v The State of New South Wales and Anor [2011] NSWCA 375 Category: Procedural rulings Parties: Akhil Sethi (Plaintiff; Self-Represented) Joe Cho (Defendant) Representation: Solicitors: Hicksons Lawyers (Defendant) File Number(s): 2023/00252488 Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED) 1. Today's hearing has been listed to deal with a notice of motion filed by the plaintiff, Akhil Sethi, on 20 September 2023 (Motion), an oral application made by Mr Sethi on 13 October 2023 objecting to Hicksons Lawyers' representation of the defendant, Joe Cho, and an application made by Mr Cho to set aside a notice to produce for inspection dated 17 October 2023 issued to him by Mr Sethi. 2. Mr Sethi appears in Court today, representing himself, and has made an oral application to the Court for an adjournment of today's hearing until December 2023 or February 2024. Mr Sethi has proposed that orders be made for the matter to be stood over for directions on 6 December 2023 or, in the alternative, for a timetable for the filing and service of further evidence and submissions and for the matter to be listed with a Judge on 22 December 2023 or 9 February 2024. 3. Ms Patrick, who appears for Mr Cho today, opposes the adjournment of the hearing. 4. The principles applicable to the exercise of the Court's discretion as to whether to adjourn the hearing are well established. Section 56 of the Civil Procedure Act 2005 (NSW) (CPA) requires that the Court's decision must seek to give effect to the overriding purpose of that Act and the rules of Court, the purpose of which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Relevantly, s 56(3) of the CPA also provides that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and participate in the processes of the Court, and to comply with directions and orders of the Court. 5. In managing the proceedings in accordance with the overriding purpose and deciding whether to adjourn them, the Court is required to have regard to the matters listed in s 57(1) of the CPA, namely: the just determination of proceedings; the efficient disposal of the business of the Court; the efficient use of available judicial and administrative resources; the timely disposal of proceedings, including bearing in mind other proceedings in the Court; and for the proceedings to be at a cost affordable to the respective parties. 6. The Court must also take account of s 58 of the CPA which requires the Court to seek to act in accordance with the dictates of justice, having regard to the provisions of ss 56 and 57, and the matters listed in s 58(2), which relevantly include: the degree of expedition with which respective parties have approached the proceedings, including the timeliness in interlocutory activities; the degree to which respective parties have fulfilled their duties under s 56(3) of the CPA; any use or opportunity taken by a party in the course of proceedings under the rules of the Court regarding procedural matters; and the degree of injustice that would be suffered by the respective parties as a consequence of the order or direction. 7. The dictates of justice are paramount, as explained by Beazley JA (as her Excellency then was) in Hamod v The State of New South Wales and Anor [2011] NSWCA 375 at [141]. 8. Mr Sethi's Motion, and the other applications before the Court today, arise in proceedings that were commenced by Mr Sethi on an urgent ex parte basis on 8 August 2023. It is not necessary to set out all of the procedural background for the purposes of the present adjournment application made by Mr Sethi. It is sufficient to note the following. 9. On 12 October 2023, the Equity Registrar referred Mr Sethi's Motion to me, sitting as the Equity Duty Judge that day, to consider whether it was an abuse of process and should be struck out. As Mr Sethi did not appear in Court that day, I stood over his Motion to 2.00pm the following day, with the Court noting in its orders that Mr Cho would be seeking orders that the Motion be dismissed and directing that any affidavits and documents to be relied on by the parties were to be filed and served by 12.00pm on 13 October 2023. 10. At the hearing at 2.00pm on 13 October 2023, Mr Sethi raised an objection to Hicksons Lawyers representing Mr Cho and issues about the Motion being referred to me as the Duty Judge by the Equity Registrar. In the context of a busy Duty List, Mr Sethi having made an oral application objecting to Hicksons Lawyers representing Mr Cho that day and Mr Sethi also asking to have the matters dealt with on a separate occasion to enable him an opportunity to provide a further affidavit, Mr Sethi's Motion and his application in relation to Hicksons Lawyers was stood over and listed before me at 10.00am on 20 October 2023. Directions were also made for the parties to file and serve any further affidavits and submissions on which they relied prior to that hearing. 11. On 20 October 2023, Mr Sethi made an oral application for an adjournment until 15 December 2023. I refused that application but granted a short adjournment of two weeks and listed the applications in relation to Mr Sethi's Motion and his objection to Hicksons Lawyers' representation of Mr Cho to 10.00am on 3 November 2023: Sethi v Cho (No 2) (Supreme Court (NSW), Henry J, 20 October 2023, unrep) (Sethi v Cho (No 2)). 12. The listing on 3 November 2023 took into account discussions with the parties that day; the Court having initially indicated that it could deal with them at a hearing early the following week. On the basis that the Court refused his date of 15 December 2023, Mr Sethi asked for "between 3 to 5 November" and Ms Patrick indicated that 3 November was acceptable to her client (T14.28–45). 13. On 20 October 2023, directions were also made in anticipation of the hearing on 3 November 2023 that provided for Mr Sethi to file and serve any further evidence and submissions in relation to his Motion and the application in relation to Hicksons Lawyers by 4.00pm on 1 November 2023. The Court also noted that Mr Cho was applying to set aside a notice to produce for inspection issued by Mr Sethi, directed the parties to file and serve any affidavits and submissions in relation to that application and listed the application before me today at 10.00am on 3 November 2023. 14. At 2.57pm on 1 November 2023, my Chambers received an email from Mr Sethi asking the Court to adjourn the hearing on 3 November 2023 and make orders providing for the matter to come back before the Court in December 2023 or February 2024. At my request, my Associate sent an email to Mr Sethi advising that any adjournment application should be made at the hearing on Friday, 3 November 2023, with any affidavits supporting that application to be filed and served prior to the hearing. 15. Mr Sethi did not serve an affidavit or any other material in support of his adjournment application prior to the hearing nor did he file and serve any further affidavits or submissions in support of his Motion or his application in relation to Hicksons Lawyers in compliance with the directions made on 13 and 20 October 2023. This is despite Mr Sethi having informed the Court on 13 October 2023 that he had a "rough draft" of an affidavit "of five pages" that he had already prepared (T29.25). 16. Mr Sethi also did not comply with the Court's direction made on 20 October 2023 for the parties to file and serve their affidavits and submissions by 1 November 2023 in relation to Mr Cho's application to set aside the notice to produce. No explanation was provided to the Court for why he did not do so. 17. At the hearing this morning, Mr Sethi sought and was granted leave to file in Court an affidavit he has sworn on 3 November 2023, a copy of which was provided to Ms Patrick at the bar table. It appears from JusticeLink that Mr Sethi filed that affidavit at 9.58am this morning. Mr Sethi did not give an explanation as to why that affidavit had not been served prior to the hearing. A short adjournment was taken by the Court to enable Ms Patrick and the Court an opportunity to read Mr Sethi's affidavit. The Court has considered the affidavit on this application. 18. Mr Sethi's 3 November affidavit, which is mostly in the form of submissions, contends that the issue of his objection to Hicksons Lawyers' representation of Mr Cho should be dealt with first and foremost and with utmost priority. Mr Sethi also says that his evidence and submissions on that issue relies on production of documents sought in the notice to produce, a letter of demand sent to Hicksons Lawyers on 13 October 2023, a letter of demand sent to the property agent managing the tenancy and subpoenas which I understand he wishes to issue to Mr Cho, Hicksons Lawyers and the property agent. Mr Sethi's affidavit says that his application to issue subpoenas is pending with the Registrar and he has received no response to the letters of demand. In those circumstances, Mr Sethi submits that the Court should accede to his application to an adjournment. 19. Ms Patrick submits that there is nothing in the affidavit which supports Mr Sethi's application for an adjournment although she acknowledges there is reference to outstanding subpoenas, notices to produce and demands which have not been responded to. Ms Patrick submits that they are not a basis for an adjournment and described the document production exercise by Mr Sethi as "putting the cart before the horse" in circumstances where, she submits, Mr Sethi has no basis for the allegation that Hicksons Lawyers' representation of Mr Cho is invalid, fraudulent, deceptive or a conflict of interest. 20. Ms Patrick submits that this matter has gone on for too long, Mr Sethi has been provided with adjournments, the applications should be dealt with before the Court today and Mr Sethi's adjournment application should be refused. I agree. 21. I am not persuaded by Mr Sethi's submission that an adjournment of the applications listed before the Court today should be granted. As is apparent from the procedural background to which I have referred, Mr Sethi has been provided with numerous opportunities to file and serve his evidence and submissions in support of the Motion that he filed on 20 September 2023 and the oral application he has made objecting to Hicksons Lawyers' representation of Mr Cho. 22. I am not persuaded by Mr Sethi's submission that he is unable to complete his evidence and submissions because it relies on the production of documents pursuant to subpoenas. That submission is, in part, a repeat of the submission that he made on 20 October 2023, which I rejected: Sethi v Cho (No 2) at [7]–[10]. 23. In any event, I do not consider there is a proper basis to grant an adjournment to Mr Sethi for that reason in circumstances where: 1. Mr Sethi does not yet have leave from the Registrar or the Court to issue any subpoenas in these proceedings. I note here that Mr Sethi's application for leave to issue a subpoena to the property agent managing the tenancy was refused by the Deputy Principal Registrar on 5 October 2023. As far as I am aware, no application has been made to review that decision; and 2. Mr Sethi has not established to my satisfaction that there is a reasonable basis, beyond speculation, that it is likely that the documents he seeks from the managing agent, Mr Cho or Hicksons Lawyers will materially assist or could possibly throw light on the issues to be determined on the applications currently before the Court. 1. The ostensible purpose of the documents that Mr Sethi seeks by way of his subpoenas, demands and the notice to produce is to obtain documents in support of his claim that Hicksons Lawyers' representation of Mr Cho is not valid and is fraudulent, deceptive and a conflict of interest as the firm is acting on instructions from the owner's corporation, the strata plan or its insurer, and not Mr Cho. 2. Mr Sethi has not adduced one skerrick of evidence or identified any matter in his submissions from which the Court could sensibly draw an inference that there is any proper basis for making those claims. As to the matters he has raised, the fact that Hicksons Lawyers filed a notice of appearance on 14 August 2023, after the hearing before me on 11 August 2023, is of no import given the urgency with which Mr Sethi's application was brought. Nor is the fact that Hicksons Lawyers has apparently sent a request to Mr Sethi for payment of Mr Cho's costs in the amount of $13,000, given that costs orders were made against Mr Sethi in favour of Mr Cho by Robb J on 17 and 24 August 2023. 3. As I explained to Mr Sethi on 13 October 2023, nothing can be taken from the fact that a representative of the owner's corporation, the strata plan or the insurer may have been sitting in the public section of the Court that day or on other days. These proceedings are subject to the open justice principle and members of the public are entitled to observe them. 4. Further, this Court has received evidence from Ms Patrick and Lachlan Wilson, the solicitor on the record for Mr Cho, both of whom are solicitors of longstanding and are officers of this Court, to the effect that Hicksons Lawyers has only ever represented and has only ever been engaged by Mr Cho with respect to the matter, and at no stage has Mr Wilson been engaged by or taken instructions from the strata plan, the insurer of the strata plan, the managing agent or any other third party in relation to this matter. 5. The Court will not grant an adjournment to permit Mr Sethi to embark on a fishing expedition in the hope of locating a document that will support his claim or use the processes of the Court to demand documents based on assertions that have no evidentiary foundation. Nor will it grant an adjournment in circumstances where Mr Sethi has failed to comply with directions that have been made by the Court to date. 6. I pause to observe that in contrast to Mr Sethi, Mr Cho has taken steps to assist the Court and comply with its directions, having filed and served his affidavits and submissions in relation to the current applications in accordance with the directions made on 12, 13 and 20 October 2023. 7. The Court must consider the interests of all parties. Those interests include the rights of Mr Cho, as the defendant, who wishes to have the applications heard and determined promptly and cost-effectively. This is particularly as Mr Sethi has made serious allegations that Hicksons Lawyers' representation of Mr Cho is not valid and Mr Cho contends that Mr Sethi's Motion should be struck out as an abuse of process. 8. The Court must also consider the interests and position of other litigants and the efficient use of the Court's resources, noting that these proceedings have been allocated a Judge and a Court room today to determine these matters. Mr Sethi is in Court today and Ms Patrick, who appears on behalf of Mr Cho, is ready to proceed, as is the Court. 9. Weighing all of these matters, I do not consider that it would be consistent with case management principles or in the interests of justice to grant Mr Sethi a further adjournment. 10. Accordingly, Mr Sethi's application for an adjournment is refused and the hearing in relation to his Motion, his objection to Hicksons Lawyers' representation of Mr Cho in these proceedings and Mr Cho's application to set aside the notice to produce will proceed today. 11. For these reasons, I make the following orders: 1. Grant leave to the plaintiff to file in Court the affidavit of Akhil Sethi dated 3 November 2023. 2. Refuse the plaintiff's application to adjourn the hearing listed on 3 November 2023 in relation to the plaintiff's notice of motion filed on 20 September 2023, the plaintiff's oral application made on 13 October 2023 objecting to Hicksons Lawyers representing the defendant and the defendant's application to set aside the notice to produce dated 17 October 2023 issued by the plaintiff.