Sethi v The Owners Strata Plan No 93392

[2023] NSWSC 853

Supreme Court

New South Wales

Medium Neutral Citation:

Sethi v The Owners – Strata Plan No 93392 [2023] NSWSC 853

Hearing dates:

17 July 2023

Date of orders:

17 July 2023

Decision date:

17 July 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) The prayers for relief one and two in Mr Sethi's notice of motion filed on 22 June 2023 are refused.

(2) Under r 14.28 Uniform Civil Procedure Rules 2005 (NSW) the whole of the plaintiff's summons is struck out.

(3) Allow the plaintiff a period of 28 days to re‑plead whatever cause of action he wishes to bring forward as a civil matter in accordance with these reasons by filing and serving a statement of claim pleading his cause of action in accordance with the said Rules.

(4) These proceedings are stayed unless and until order 3 is properly complied with.

(5) List the matter for directions before the Registrar at 9 am on 21 August 2023.

(6) Stand the balance of the notices of motion filed on 2, 6, 7 and 22 June 2023 for directions before the Registrar on 21 August 2023.

(7) The plaintiff is to pay the defendant's costs of the applications determined today.

(8) Refuse the application for an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

Catchwords:

CIVIL PROCEDURE — application to strike out summons — matter irregularly commenced by summons instead of statement of claim — application to strike out defendant’s notice of appearance — application for summary dismissal — cannot be finally determined without proper pleading — application for suppression of the plaintiff’s identity is refused

Legislation Cited:

Court Suppression and Non‑publication Orders Act 2010 (NSW) ss 7, 8

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Strata Schemes Management Act 2015 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) rr 6.3, 7.21, 13.4

Cases Cited:

General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125; [1964] HCA 69

O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71

Wilkinson v Downton [1897] 2 QB 57

Category:

Procedural rulings

Parties:

Akhil Sethi (Plaintiff)
The Owners – Strata Plan No 93392 (Defendant)

Representation:

Counsel:
A Sethi (Plaintiff in person)
J Lazarus SC (Defendant)

Solicitors:
Eakin McCaffery Cox (Defendant)

File Number(s):

2023/137553

Ex Tempore JUDGMENT (revised)

1. There are four notices of motion listed before me for hearing today concerning various procedural questions that have arisen in these proceedings commenced by summons.

2. At the commencement of the hearing, I discussed with Mr Sethi, who is self-represented, and Mr Lazarus SC who appears for the defendant, the best way of proceeding. Both parties accepted the logic of my suggestion that, in the first instance, I should deal with the relief sought in the defendant's notice of motion filed on 6 June 2023, principally seeking summary dismissal, and with prayers one and two in Mr Sethi's notice of motion filed on 22 June 2023. Those two prayers seek to have the notice of appearance that is filed on behalf of the defendant struck out, essentially for noncompliance with r 7.21 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), but there were other grounds.

3. The balance of the relief sought relates not only, but principally to, a dispute about the obligation of the defendant to comply with notices to produce that Mr Sethi has served since the proceedings were commenced. Mr Sethi's notice of motion of 22 June has a wide-ranging suite of other prayers for relief that he seeks, but none of the other issues in dispute of a procedural nature need be resolved before the matters which I have identified. Obviously, the future progress of the proceedings hinges on those matters.

Background

4. As I have said, Mr Sethi has commenced these proceedings by way of summons filed on 30 April 2023. As he explained his case to me, and without seeking to categorise the legal rights he says have been infringed at this stage, he has formed the conviction that the owners corporation of the strata apartment block in which he resides has conspired with other, as yet unidentified or at least unknown parties, to commit various crimes of which he is the victim.

5. There is a wide-ranging group of offences which he points to, and his case is essentially that, because he has detected within his home, which is on the 19th floor of the apartment block, a disturbance of his possessions, there must have been a conspiracy to allow third parties into the apartment block for the purpose of doing him harm, even very great harm.

6. The logic upon which this conviction is founded is that, as is common enough, there are a number of layers of security protecting the residence of a person within an apartment block. There are external security doors which must be activated by a fob or electronic key of some kind, a lift operated on a similar basis, and of course a lock on the person's home. As I understood what Mr Sethi explained to me, those circumstances suggested that the persons who he believes have invaded his home could not have done so without some connivance on the part of persons responsible for the management of the owners corporation or the apartment block itself.

7. His conviction has been heightened, from his explanation to me from the bar table, by the circumstance that he has met with, in his own appreciation of the circumstances, obstruction when he sought to obtain access to CCTV footage to try and identify the persons who may have infringed the sanctity of his home. And that conviction has been further inflamed by the circumstance that, notwithstanding his reports of these events to police, as the building management suggested, no action seems to have been taken, such that he now suspects that the police may be in on what he regards as the conspiracy.

8. I set out these background facts to place my judgment in context. Dealing with an application of the type before me today, it is no part of my function to make any assessment of the merits or otherwise of the case that has been brought. But it is important to put the application in the context of the actual controversy which Mr Sethi has brought before the Court.

9. I interpolate, I have so far neglected to mention that at the commencement of the hearing today I directed that the name of the defendant where ever it appears throughout the file be amended to conform with the requirements of s 8 Strata Schemes Management Act 2015 (NSW), to read, “The Owners ─ Strata Plan No 93392” in substitution for “Strata Plan Number 93392”. This amendment is important, first to reflect the true name of the defendant; and secondly, to give effect to the legislation which constitutes the defendant aa a body corporate, which has ramifications for Mr Sethi's claim for relief.

The plaintiff’s summons

10. When giving my judgment ex tempore, I said that when revising my judgment prior to publication on NSW Caselaw, I would set out Mr Sethi’s 7 claims for relief in his summons in full. They are:

1. “Plaintiff is a resident of the apartment 1910 located at the Level 19 of the property 10 Atchison St, St Leonards, NSW 2065 of entity STRATA PLAN SP93392 since about August 2016.

2. Under section 26, 29 and 30 of New South Wales Crimes Act 1900 (NSW) which are strictly indictable offences, and in order to commence proceedings, this summons alleges that the Defendant i.e., STRATA PLAN SP93392 did unlawfully conspire with another persons or organisations unknown to commit the crime of murder at the location: 10 Atchison St, St Leonards, NSW 2065. The evidence in support of this includes the CCTV footage and information provided to NSW Police upon enquiries for the Event ID: E92844140 and complaints reported to the Police by the Plaintiff.

3. Defendant is accused of having knowledge of the plan to commit the crime and taking part in it either directly or indirectly through providing assistance or resources. It is further alleged that the Defendant had the intent to cause death when they took part in the conspiracy.

4. Furthermore, under section 93(H), 94(B), 95(2)(c), 111(3), 113(3), 114(1)(a) and 114(1)(d) of New South Wales Crimes Act 1900, it is alleged that the persons or organisations unknown who co-conspired to commit the murder also committed continuous home invasions over a long period of time, trespassed, specially aggravated break and enter the dwelling of the plaintiff multiple times, carrying dangerous weapons at times with an intent to commit a strictly indictable offence and actually robbing and stealing property.

5. It is also alleged that the Defendant and the persons or organisations unknown coconspired [sic] to unlawfully conduct surveillance, monitoring and stalking of the Plaintiff with an intent to commit a strictly indictable offence in order to cause death or serious harm.

6. As such, the Plaintiff claims an amount of $850,000,000.00 i.e., Eight Hundred Fifty Million dollars in damages for:

• General Damages,

• Special Aggravated Damages,

• Pain and Suffering,

• Severe Breach of Privacy,

• Loss of Enjoyment of Life,

• Trauma,

• Potential impact on Future life,

• Distress and Anxiety, and

7. Plaintiff also asks that the court reserves the fees and costs of proceedings, and interest prior to the judgement and after the judgement until the money is paid in full and in addition provide any other relief as appropriate.”

Discussion

11. What is fundamentally important, and Mr Sethi has confirmed that this is his intent in his oral submissions today, is that the prayers for relief, which are not accompanied by any narrative of material facts, manifestly blend allegations of crime in the form of contraventions of the Crimes Act1900 (NSW) with a claim for civil damages. Despite my attempt to explain that this was an impermissible mingling of separate streams of adjectival law, Mr Sethi maintains that he is entitled to frame his summons in this way.

12. I disagree. To my mind, it is entirely impermissible for criminal allegations and civil allegations to be blended in the same proceedings, notwithstanding that the principal relief sought is damages rather than punishment. Damages are not an available remedy for crime per se.

13. To the extent to which Mr Sethi seeks to propound contraventions of the Crimes Act which are, as he says, strictly indictable offences, he must comply with the provisions of the Criminal Procedure Act 1986 (NSW). All criminal proceedings in this State under that legislation, with some rare exceptions such as ex officio indictments, must be commenced in the Local Court.

14. There are fundamental reasons for the impermissibility of blending the criminal and the civil, including the difference in the standard of proof that applies in criminal cases of beyond reasonable doubt, and the special protections which attend the liberty of the person accused of a crime including the right to silence, and the right of a person charged not to be drawn into assisting the prosecution. These matters may be compared to the lesser civil standard of proof on the balance of probabilities. These considerations would be sufficient to justify at least striking out the summons as an abuse of process.

15. There are other grounds, including the contravention of r 6.3 UCPR, which specifies the kinds of claims or proceedings that must be commenced by statement of claim. These proceedings include proceedings on a claim for relief in relation to a tort (r 6.3(b) UCPR).

16. Now, Mr Sethi has in his discussion with me made it quite clear that he had in mind a number of different torts, including the tort of trespass. He referred to the intentional infliction of harm, as in Wilkinson v Downton [1897] 2 QB 57. He also referred to conversion and negligence. All of these things, if they are to be propounded, are included in proceedings which must be commenced by statement of claim. He also referred to the nature of the damages he wishes to claim, which it seems to me consist of or include damages for personal injury. These claims must be commenced by way of a statement of claim (r 6.3(d) UCPR).

17. But most particularly, it seems to me, it is the indication in r 6.3(c) that proceedings making an allegation of fraud must be commenced by way of statement of claim. Now, no fraud is raised here, but the fact is that an allegation of fraud is a serious matter, which always must be strictly pleaded with precision and clarity. This suggests to me that, if one is pleading that persons have engaged in a conspiracy to murder, as Mr Sethi purports, it must, a fortiori, be pleaded with the same or greater strictness and clarity. And that can only be achieved by statement of claim.

18. I am conscious of the fact that it seems at times when this matter has been agitated before the Registrar, Mr Sethi may have eschewed any reliance on, say, the tort of conspiracy, which he now embraces today. Even so, if it is embraced today, it is a matter that ought to have been pleaded in a statement of claim in a strict manner.

19. For all those reasons, I have no alternative but to strike out the summons, and I will make that order in due course.

Defendant’s claim for summary dismissal

20. I have not lost sight of the consideration that the relief sought by the defendant is principally summary dismissal, and in that regard, I have been reminded by Mr Lazarus of the nature of the test to be applied under r 13.4 UCPR, by reference to the well-known case of General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125; [1964] HCA 69 at 8 (Barwick CJ).

21. Although I have a very strong suspicion that what underpins Mr Sethi's conviction that I have described already is, with respect to him, nothing more than pure speculation, it would seem to me that I am not in a position to act upon even a strong suspicion in that regard. Although I suspect that his claim may be “so obviously untenable that it cannot possibly succeed”, in the absence of any proper pleading of his case, I cannot come to that conclusion affirmatively.

22. As Macfarlan JA pointed out in O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3], in the end, the question is not so much about whether a viable case is pleaded, but whether there might be an underlying case which is pleadable.

23. Notwithstanding my strong contrary suspicion, unless Mr Sethi is given a final opportunity to bring forward a statement of claim, I cannot summarily dismiss the proceedings with the effect of shutting him out, for all time, from pursuing his case.

24. I must say that another reason why I am persuaded that the proceedings as presently constituted do constitute an abuse of process of the Court is a strong argument that Mr Lazarus has put forward in relation to other notices of motion which are not the subject of this judgment. It seems quite clear from what Mr Sethi has said to me this morning that he has commenced these proceedings by summons in order to conduct an investigation, aided by the coercive powers of the Court, to require parties to produce documents. Were that so, that of itself would be an abuse of process justifying either the proceedings being stayed or perhaps summarily dismissed.    But I am not in a position to make a clear decision about that.

25. I will make an order in due course striking out the summons, and I will give Mr Sethi an opportunity to properly plead whatever cause of action in tort he claims to be entitled to bring forward within a not unlimited period of time.

Prayer to strike out the defendant’s notice of appearance

26. I then turn to the application to strike out the notice of appearance. As I have said, the principal ground upon which Mr Sethi relies is r 7.21(2) UCPR which requires a party sued by business name, in its appearance or their appearances, to state their proper name and address. Mr Sethi wishes that be done by the office-holders of the defendant to further his understanding of who might be involved in what he sees as this conspiracy.

27. However, his application is, with respect, misconceived. The Owners-Strata Plan 93392 is not a business name. In fact, it is the name of a separately existing corporation created by statute, and it is not necessary, and indeed, it would be inappropriate, for the names and addresses of the office-holders for the time being to be listed in the notice of appearance. They are not parties, and they would not be proper parties to the proceedings as presently constituted.

28. Mr Sethi also complained about the consideration that the notice of appearance had been served on him not by a solicitor, but over the hand of an administrative person employed within the office of the defendant's solicitor. And this is again, if I may say so, a misconception. It is not necessary that the person who serves legal process be legally qualified, and indeed, the contrary is almost always true.

29. Accordingly, I would dismiss prayers 1 and 2 in Mr Sethi's notice of motion of 22 June 2023.

Plaintiff’s application for suppression of his identity

30. Mr Sethi has applied for an order under s 7 Court Suppression and Non‑publication Orders Act 2010 (NSW) on the grounds specified in paras 8(1)(a), (c) and (e), that I suppress his identity or require that anything tending to identify him not be published. Orders under that legislation are of course a very narrow exception to the primacy of the principle of open justice. It is of fundamental importance that the courts’ business is conducted in the public interest in public. When an application is made for a suppression or non‑publication order, the party asking for the order is seeking to carve out an exception to that fundamental rule. The Court always has to balance the importance of the open justice principle against the interest that the party seeking the order seeks to protect.

31. These are ordinary civil proceedings, as I have been at pains to point out; and in other than the most exceptional cases, in my mind, it is not necessary to prevent prejudice to the proper administration of justice that the names of people who bring cases for determination in court should be suppressed or not published. I reject the application on the s 7(1)(a) ground because, in my view, the open justice principle far outweighs what Mr Sethi has put to me.

32. Nor am I convinced, with respect, that the order is necessary to protect Mr Sethi's safety. As I have said, he has formed a strong conviction in relation to his position, but there is no evidence whatsoever of any objective type put before me that his safety is in any way at risk. There is no objective evidence before me that he falls into a category of litigant whose safety may well be at risk simply by bringing the proceedings, and I am not satisfied that his concerns over his safety ‑ and I do not wish to down-play them from his subjective point of view - are such as displace the open justice principle.

33. So far as para 7(1)(e) is concerned, I am not satisfied that there is any other public interest arising in this case which outweighs the public interest in open justice. Reputational matters are necessarily bound up in any civil litigation. A person who brings proceedings or has to defend proceedings in the civil courts is in a sense always risking their reputation. Regrettably, that is part and parcel of what is involved in bringing court cases. But the fact that it is regrettable is insufficient of itself to displace the open justice principle. And for these reasons, I refuse the application for an order under s 7 Court Suppression and Non‑publication Orders Act 2010 (NSW).

Orders

34. My orders are:

1. The prayers for relief one and two in Mr Sethi's notice of motion filed on 22 June 2023 are refused.

2. Under r 14.28 Uniform Civil Procedure Rules 2005 (NSW) the whole of the plaintiff's summons is struck out.

3. Allow the plaintiff a period of 28 days to re‑plead whatever cause of action he wishes to bring forward as a civil matter in accordance with these reasons by filing and serving a statement of claim pleading his cause of action in accordance with the said Rules.

1. These proceedings are stayed unless and until order 3 is properly complied with.

2. List the matter for directions before the Registrar at 9 am on 21 August 2023.

3. Stand the balance of the notices of motion filed on 2, 6, 7 and 22 June 2023 for directions before the Registrar on 21 August 2023.

4. The plaintiff is to pay the defendant's costs of the applications determined today.

5. Refuse the application for an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

**********

Decision last updated: 20 July 2023