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Sethi v Cho (No 4)

Sethi v Cho (No 4)

Case [2023] NSWSC 1334 3 November 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Sethi v Cho (No 4) [2023] NSWSC 1334
Hearing dates: 3 November 2023
Date of orders: 3 November 2023
Decision date: 03 November 2023
Jurisdiction: Equity
Before: Henry J
Decision:
(1)   Dismiss the plaintiff’s oral application made on 13 October 2023 objecting to Hicksons Lawyers representing the defendant and seeking to disqualify them from doing so (Plaintiff’s Hicksons Application).
(2)   Grant the defendant’s application and set aside the notice to produce for inspection dated 17 October 2023 issued by the plaintiff (Defendant’s Set Aside Notice to Produce Application).
(3)   Order the plaintiff to pay the defendant’s costs in relation to the Plaintiff’s Hicksons Application and the Defendant’s Set Aside Notice to Produce Application.

Catchwords:
CIVIL PROCEDURE — Notices to produce — At hearing — UCPR r 21.10 — Whether documents “referred to” in pleadings or affidavits — Whether “specific documents” clearly identified in notice — Where documents sought subject to claims of legal professional privilege — Where documents sought are categories which refer to unidentified email addresses and persons, any issue or topic and a period of 26 months
OCCUPATIONS — Legal practitioners — Solicitors — Whether solicitors should be restrained or disqualified from representing the defendant in these proceedings — Where no evidence supports conclusion that a fair-minded, reasonably informed member of the public would consider that the proper administration of justice requires restraint on solicitors from acting for the defendant in these proceedings or that it is in the interests of the integrity of the judicial process and the due administration of justice

Legislation Cited:
Legal Profession Uniform Law (NSW) 2014
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Noun v Pavey [2014] NSWSC 429
Owners Strata Plan SP 69,567 v Baseline Constructions Pty Ltd [2012] NSWSC 502
Patonga Beach Holdings Pty Limited v Lyons [2009] NSWSC 896
Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116
Re Australasian Hail Network Pty Ltd (No 2) [2020] NSWSC 517
Rinehart v Rinehart [2015] NSWSC 205
Secretary of the Department of Planning Industry and Environment v Blacktown City Council [2021] NSWCA 145
Ward v Westpac Banking Corp Ltd [2022] NSWSC 66

Category: Principal judgment
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)

Before the Court are two applications:

the first was made by the plaintiff, Akhil Sethi, orally on 13 October 2023, objecting to Hicksons Lawyers representing the defendant, Joe Cho, in these proceedings. Mr Sethi’s application has been taken by the Court, Mr Cho and Hicksons Lawyers as an application seeking to disqualify and restrain Hicksons Lawyers from representing Mr Cho in these proceedings (Hicksons Application); and

the other was made by Mr Cho orally on 20 October 2023 seeking to set aside a notice to produce for inspection dated 17 October 2023 that was issued…

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 4)

Details

AGLC: Sethi v Cho (No 4) [2023] NSWSC 1334
Case: [2023] NSWSC 1334
Decision Date: 03 November 2023

CaseChat Overview and Summary

The case of Sethi v Cho (No 4) arose in the Supreme Court of New South Wales, where the primary dispute involved the production of documents, specifically under the Uniform Civil Procedure Rules 2005 (UCPR). The plaintiff, Sethi, sought documents from the defendant, Cho, which were alleged to be relevant to the proceedings. The central issue before the court was whether the notices to produce were compliant with the rules, particularly concerning the specificity of the documents sought. The plaintiff argued that the notices were vague and not sufficiently precise, making it difficult to determine which documents were being sought and whether they were indeed covered by the claims of legal professional privilege.

The court was tasked with determining whether the documents sought in the notices were "referred to" in the pleadings or affidavits and whether they were "specific documents" clearly identified. The notices in question sought documents that were described in broad terms, such as those from unidentified email addresses and persons, covering any issue or topic over a period of 26 months. The court had to assess whether these broad descriptions met the requirements of the UCPR. Additionally, the court considered whether the solicitors representing the defendant should be restrained or disqualified from acting in these proceedings, based on concerns about the integrity of the judicial process.

The Supreme Court found that the notices to produce were not sufficiently specific as required by the UCPR. The broad descriptions of the documents sought did not meet the standard of clarity and specificity needed under the rules. Consequently, the notices were deemed non-compliant. The court also examined the evidence regarding the solicitors' conduct but found no basis to conclude that the proper administration of justice required their restraint or disqualification. Therefore, the court ruled against the plaintiff on both issues, upholding the notices' non-compliance and dismissing the application to restrain or disqualify the solicitors. The court's decision emphasised the importance of clear and precise notices to produce and found no grounds to intervene in the solicitors' representation of the defendant.

Orders