Sethi v Cho

Set Aside Notice to Produce Application

1. The notice to produce dated 17 October 2023 was issued by Mr Sethi to Mr Cho and seeks the following documents (Notice to Produce): 1. All correspondence and emails including a copy of any attachments in those emails, across all email domains, sent to or received from Mr Lachlan Wilson or Ms Elizabeth Patrick or any legal representative of Hicksons Lawyers in order to commence legal representation or legally represent the Defendant i.e., Mr Joe Cho for this matter or a related matter. 2. All correspondence and emails including a copy of any attachments in those emails, across all email domains, sent to or received from XXX@century21killara.com.au or XXX@c21masterpiece.com.au or any email id or property agent of Century 21 Killara or Century 21 West Pacific between 01 August 2021 to 17 October 2023. 3. All correspondence and emails including a copy of any attachments in those emails, across all email domains, sent to or received from the Building Manager or Strata Management or any member of the Owners Corporation or any member of the Strata Committee of the premises XXX Atchison St, St Leonards, NSW 2065 or XXX Atchison St, St Leonards, NSW 2065 between 01 August 2021 to 17 October 2023. 4. All correspondence and emails including a copy of any attachments in the emails, across all email domains, sent or received in relation to the property XXX Atchison St, St Leonards, NSW 2065 or XXX Atchison St, St Leonards, NSW 2065 between 01 August 2021 to 17 October 2023.
2. Mr Cho relies on written submissions dated 1 November 2023, filed in accordance with the directions of the Court, as to why he says that the Notice to Produce should be set aside.
3. In summary, Mr Cho submits that the Notice to Produce ought to be set aside on the grounds that it: 1. is otiose as the summons in these proceedings was disposed of by this Court on 11 August 2023 with the same issues being disposed of on 17 and 24 August 2023; 2. fails to conform with the requirements of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 21.10; 3. transgresses and seeks documents that are subject to client legal privilege in respect of paragraph one of the Notice to Produce; 4. represents an improper fishing expedition as it purports to relate to documents going to an issue in relation to Mr Cho's representation and other documents which have no apparent relevance to the issues before the Court; 5. is oppressive because, for example, it covers a period of 26 months in respect of paragraphs three, four and five and seeks correspondence which relates to the St Leonards property but is not limited to any issue or topic and otherwise does not identify the topic or issue it relates to; and 6. in all the circumstances, is an abuse of process.
4. Mr Sethi submits that the Notice to Produce should not be set aside and should be responded to by Mr Cho because it has been issued in aid of his Hicksons Application and what he described as "the entirety of this matter". He also submits that the Notice to Produce is not oppressive because it describes clearly what the documents sought are.
5. As I understand Mr Sethi's submissions, the ostensible purpose of the Notice to Produce is to obtain documents to support his claim that Hicksons Lawyers' representation of Mr Cho is not valid and is fraudulent, deceptive and a conflict of interest. Mr Sethi has referred to these claims in written submissions filed 12 October 2023, in oral submissions and in his affidavit filed 3 November 2023.
6. To understand how it is put by Mr Sethi that the Notice to Produce seeks documents that are relevant to his Hicksons Application, it is appropriate to set out the contents of Mr Sethi's 3 November affidavit on that issue: 9 Plaintiff is of the view that Hicksons is not directly engaged by the Defendant i.e., Mr Joe Cho in these proceedings but by the insurers of the Owners Corporation / Strata Plan or their managing agents or by a third party. 10 Plaintiff also sees a direct conflict of interest with Hicksons having retained by the insurers of Owners Corporation / Strata Plan or their managing agents but acting for an individual owner for a tenancy matter while there are other relevant Supreme Court proceedings on foot against the Owners Corporation. 11 This action also appears to be taken recklessly and knowingly which would further put Hicksons Directors and Officers [or Managing Partners] in the direct breach of their respective Director's and Officer's duty of obligation and liability including any breaches under the Corporations Act, depending on the legal entity model. 12 Further on this fraudulent and deceptive representation, the legal representative of Hicksons are trying to seek $13,000.00 as per the correspondence sent by them to the Plaintiff on or about 09 October 2023. 13 The intention of this representation is reckless and misleading so as to have the Plaintiff and the court rely on it."
7. Mr Sethi also alleges in his affidavit that: The fraudulent and deceptive conduct of the legal representatives appears directly to be in the breaches pursuant to, but not limited to, s297, s298 and s388 of the Legal Profession Uniform Law 2014 (NSW).
8. I note that ss 297 and 298 of the Legal Profession Uniform Law (NSW) 2014 relate to "Professional Misconduct".
9. As is apparent, Mr Sethi's affidavit and his oral and written submissions to the Court makes serious allegations in relation to the representation of Mr Cho by Hicksons Lawyers.
10. Mr Sethi's submissions and affidavit amount, in my view, to unsubstantiated assertions which do not have any evidentiary foundation in the material he has put before the Court. It is appropriate to record some matters that Mr Sethi has raised orally during the course of the hearings before me, which I understand he relies on to support his contention that, in his view, Hicksons Lawyers are not directly engaged by Mr Cho but by the insurers of the owners corporation or strata plan, their managing agents or a third party, and hence he needs the production sought in the Notice to Produce.
11. Mr Sethi referred to Ms Patrick saying at NCAT that she represented "Mr Chow", not "Mr Cho", and that "Mr Chow" was a representative of a strata plan or owners corporation. There is no evidence in support of that submission and I can only assume that Mr Sethi may have misheard what Ms Patrick said on that occasion.
12. Mr Sethi has also referred to a representative of the owners corporation sitting in the public section of the Court room while the hearing of these proceedings was conducted. As I have explained in my ex tempore reasons earlier today (refusing Mr Sethi's adjournment), members of the public are entitled to observe what is going on as these proceedings are subject to the open justice principle. I take nothing from the fact that a representative of the owners corporation, who would presumably have an interest in observing these proceedings, was sitting in Court.
13. The demand by Hicksons Lawyers on behalf of Mr Cho for the payment of Mr Cho's costs in the amount of $13,000 is also not a factor from which the Court could draw any inference that there is a proper basis for Mr Sethi to make the claims he has made in respect of Hicksons Lawyers' representation of Mr Cho. Costs orders were made against Mr Sethi in favour of Mr Cho by Robb J on 17 and 24 August 2023. Mr Sethi may take issue with the costs orders and quantum sought but a demand for payment by the defendant's solicitors does not suggest that their legal representation is invalid, fraudulent, deceptive or a conflict of interest.
14. Nor can anything be taken from the fact that Ms Patrick appeared at the hearing before me on 11 August 2023, soon after the proceedings had been commenced by Mr Sethi on an urgent ex parte basis, noting that Mr Wilson filed a notice of appearance on 14 August 2023, being the next business day after that hearing.
15. The assertions by Mr Sethi that he does not know who he is dealing with, that it is unclear as to who applied for the warrant for possession following the NCAT proceedings, that he cannot accept Mr Cho's submissions and that he has doubts about Mr Cho's legal representation are not matters which give rise to any credible claim that Hicksons Lawyers are in some position of conflict of interest or are not appropriately acting for Mr Cho but are acting on instructions from another party. This is particularly in circumstances where this Court has received affidavits from officers of this Court on oath to the contrary.
16. Mr Cho read affidavits from Elizabeth Patrick sworn 12 October 2023 and Lachlan Wilson sworn 16 October 2023.
17. Ms Patrick is a solicitor in the employ of Hicksons Lawyers. She has the day-to-day conduct of these proceedings and is assisting Mr Wilson who is the solicitor on the record for Mr Cho. Ms Patrick has given evidence on oath that, at all times, Hicksons Lawyers has only taken instructions from Mr Cho directly and it is engaged by Mr Cho personally, not any other party (including an insurer), with respect to the matter. Mr Wilson's evidence confirms on oath that Hicksons Lawyers has only ever represented and has only ever been engaged and instructed by Mr Cho with respect to this matter, and that at no stage has he represented, been engaged by and/or taken any instructions from the strata plan, the insurer of the strata plan, the managing agent or any other third party in relation to this matter.
18. It is in that context that I consider that the Notice to Produce issued to Mr Cho by Mr Sethi should be set aside. In my view, it represents an improper fishing expedition in the hope of locating a document that will support Mr Sethi's claim in circumstances where the assertions he has made to date have no evidentiary foundation.
19. I do not accept Mr Sethi's submission that the documents sought are relevant to challenge the evidence given on oath by two officers of this Court that they have only taken instructions from Mr Cho in circumstances where Mr Sethi has not adduced any evidence or identified any matter in his submissions which credibly raise doubt about that evidence. It is Mr Sethi's application to disqualify Hicksons Lawyers. It is for him to put forward credible evidence or factual matters which would warrant seeking any documents to test or challenge the affidavit evidence from Ms Patrick and Mr Wilson that has been received by this Court.
20. For a subpoena or notice to produce to be issued, there must be a legitimate forensic purpose. Mr Sethi, as the party issuing the Notice to Produce, bears the onus of establishing that legitimate forensic purpose. A notice to produce may be issued for a legitimate forensic purpose if the documents sought by it are apparently relevant to an issue in proceedings. To establish that the documents sought are apparently relevant, the issuing party is required to show that it is likely or on the cards that the documents sought to be produced will materially assist on an identified issue, or that there is a reasonable basis, beyond speculation, that it is likely or on the cards that the documents will so assist: Secretary of the Department of Planning Industry and Environment v Blacktown City Council [2021] NSWCA 145, per Bell P (as his Honour then was, at [65]; with whom McCallum JA, as her Honour then was, agreed) and Brereton JA (at [89]).
21. The submissions and evidence relied on by Mr Sethi in relation to the Hicksons Application fail to identify any basis for making his claims, let alone how there is a reasonable basis, beyond pure speculation, that the documents sought in the Notice to Produce could assist him in these proceedings.
22. There are further reasons why I would accede to Mr Cho's application for the Notice to Produce to be set aside, which reflect the matters referred to in Mr Cho's submissions dated 1 November 2023. It is sufficient to deal with a few of them to also dispose of the application.
23. First, in my view, the Notice to Produce fails to conform with UCPR, r 21.10. That rule states the following: 21.10 Notice to produce for inspection by parties (1) Party A may, by notice served on party B, require party B to produce for inspection by party A-- (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
24. None of the documents referred to in the Notice to Produce are documents referred to in the summons or in any affidavit filed in these proceedings. It therefore does not comply with UCPR, r 21.10(1)(a).
25. As to UCPR, r 21.10(1)(b), the requirement to produce any other specific document that is clearly identified in the notice and is relevant to a fact in issue is not met by seeking classes of documents or categories of documents no matter how specifically those classes are described: Noun v Pavey [2014] NSWSC 429 at [14] citing Patonga Beach Holdings Pty Limited v Lyons [2009] NSWSC 896 at [7]-[11] and Owners Strata Plan SP 69,567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [4]-[7]. Those principles have been applied and cited with approval in subsequent cases: see Re Australasian Hail Network Pty Ltd (No 2) [2020] NSWSC 517 at [59] and Rinehart v Rinehart [2015] NSWSC 205 at [32].
26. Second, in my view, the Notice to Produce should also be set aside because it is oppressive and it also seeks documents which would be subject to claims of legal professional privilege: see paragraph one of the Notice to Produce that seeks all correspondence and emails sent to or received from Mr Wilson and Ms Patrick, or any legal representative of Hicksons Lawyers, in order to commence legal proceedings or legally represent Mr Cho in this matter.
27. As to paragraphs two, three and four, they seek all correspondence sent to two specified email addresses and numerous unidentified email addresses in relation to any issue or topic, to unidentified members of the owners' corporation and the strata committee in respect of two property addresses on any issue or topic and to unidentified persons and/or unidentified entities in respect of two property addresses on any issue or topic, all of which are expressed without limitation for a period of 26 months.
28. For these reasons, the Notice to Produce served by Mr Sethi on Mr Cho on 17 October 2023 should be set aside.

Hicksons Application

1. I turn now to deal with the application by Mr Sethi objecting to Hicksons Lawyers representing Mr Cho in these proceedings. As I have said, the application was made orally before this Court on 13 October 2023 and has been treated as an application by Mr Sethi for the Court to make an order disqualifying Hicksons Lawyers from representing Mr Cho. In other words, as I understand Mr Sethi's application, he effectively seeks an order to restrain Hicksons Lawyers from acting for Mr Cho in these proceedings.
2. The legal principles applicable to the question of whether this Court should restrain a solicitor from acting for a client are set out by Brereton J, as his Honour then was, in Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 at [76]. The principles his Honour referred to have been applied and cited with approval in various cases since, including, for example, Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116 at [113] and Ward v Westpac Banking Corp Ltd [2022] NSWSC 66 at [14].
3. The principles as referred to in the authorities establish that there are various categories of cases in which this Court may restrain a solicitor from acting. One of those categories involves a situation where a solicitor has a subsisting retainer in relation to a client and the representation of another party gives rise to a conflict. Another category is where the solicitor's retainer is at an end but that solicitor is restrained to protect the confidences of a former client obtained during the course of that retainer. Those categories do not apply here. There is no suggestion that Hicksons Lawyers has represented or acted in the interests of Mr Sethi in the past.
4. The other class of case recognised by the principles is the Court's jurisdiction to restrain solicitors from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice. The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting based on the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
5. The authorities also recognise that the jurisdiction to restrain a solicitor from acting is to be regarded as exceptional, is to be exercised with caution and that due weight should be given to the public interest of a litigant not being deprived of the lawyer of his or her choice without due cause.
6. In my view, the matters raised by Mr Sethi could not give rise to the conclusion that a fair-minded, reasonably informed member of the public would consider that the proper administration of justice requires Hicksons Lawyers to be restrained from acting for Mr Cho in these proceedings or that it is in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice, for that to occur.
7. As I have said, there is nothing in the evidence adduced by Mr Sethi or identified in his submissions from which the Court could sensibly draw an inference that there is a proper basis for him to make his claims that Hicksons Lawyers' representation of Mr Cho is not valid, fraudulent, deceptive and a conflict of interest.
8. Mr Sethi has raised serious allegations about Hicksons Lawyers and officers of this Court. I accept Ms Patrick's submission from the bar table that the allegations are personally distressing for her given they have raised questions about her professional conduct. At this point, I should observe that I have seen nothing in the conduct of these proceedings that gives rise to any suggestion that Ms Patrick or Mr Wilson have conducted themselves otherwise than in accordance with the rules of this Court and their professional obligations.
9. Accordingly, I dismiss Mr Sethi's application objecting to and seeking to disqualify or restrain Hicksons Lawyers from representing Mr Cho in these proceedings.
10. Given the outcome of these applications, I see no reason why the usual order that costs follow the event should not apply and will make an order that Mr Sethi pay the costs relating to his application to disqualify Hicksons Lawyers from representing Mr Cho and in relation to the application by Mr Cho to set aside the Notice to Produce dated 17 October 2023.
11. For these reasons, I make the following orders: 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2023