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)

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.
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.
Ms Patrick, who appears for Mr Cho today, opposes the adjournment of the hearing.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sethi v Cho (No 3)

Details

AGLC: Sethi v Cho (No 3) [2023] NSWSC 1309
Case: [2023] NSWSC 1309
Decision Date: 03 November 2023

CaseChat Overview and Summary

In the matter of Sethi v Cho (No 3), the plaintiff sought an adjournment of the hearing to allow time for responses to subpoenas, letters of demand, and a notice to produce that had been issued by him. The defendant opposed the adjournment, citing the plaintiff's failure to comply with the Court's previous directions. The case was heard in the Federal Circuit and Family Court of Australia. The primary legal issue before the Court was whether the plaintiff's application for an adjournment was justified, given his non-compliance with the Court's previous directions and the circumstances of the case.

The Court considered the factors relevant to granting an adjournment, including the importance of the case, the stage of the proceedings, and the reasons for the delay. The Court noted that the plaintiff had been granted a short adjournment on the last occasion, but had not complied with the directions given by the Court. The Court also considered the plaintiff's submissions regarding the need for time to receive responses to the subpoenas, letters of demand, and notice to produce. Ultimately, the Court found that the plaintiff's failure to comply with the Court's directions, coupled with the fact that the plaintiff had already been granted an adjournment, outweighed any potential benefits of granting a further adjournment. The Court held that the plaintiff's application for an adjournment was not justified.

The Court dismissed the plaintiff's application for an adjournment. The Court noted that the plaintiff had had ample time to obtain the necessary information and that the delay caused by the adjournment would cause significant prejudice to the defendant. The Court also noted that the plaintiff's failure to comply with the Court's directions was a serious matter that undermined the integrity of the judicial process. The Court ordered the plaintiff to pay the defendant's costs of the application, to be taxed if not agreed.

Orders