Sethi v Cho

Category: Procedural rulings

Parties: Akhil Sethi (Plaintiff)
Joe Cho (Defendant)

Representation: Counsel:
Plaintiff: In person
Ex Parte

File Number(s): 2025/00475691

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Mr Akhil Sethi appeared before the Court today seeking urgent ex parte interlocutory injunctive relief. I am not aware of notice having been given to the defendant that the application would be made today, but, in any case, I do not think it would disadvantage the defendant, Mr Cho, if the Court gives reasons for the decision it has taken this morning.

2. The background to the matter is important. The matter largely turns on the plaintiff, Mr Sethi, seeking to be restored to possession of premises, being residential premises in Atchison Street in St Leonards. Mr Sethi resided as a tenant there for a lengthy period before he was evicted.

3. The matter has a lengthy background and there is a significant history of Mr Sethi seeking relief in the Supreme Court, initially against The Owners of Strata Plan No 93392: see Sethi v The Owners Strata Plan 93392 [2023] NSWSC 853. Then relief was sought by Mr Sethi against Mr Cho. The background to that matter may be seen in Sethi v Cho (No 5) [2023] NSWSC 1335 (Henry J). In the earlier judgment, an application for suppression of the plaintiff’s identity was refused: see at [30]-[32]. In Sethi v The Owners Strata Plan N**o 93392 (No 3) [2023] NSWSC 907, Campbell J advised Mr Sethi that if he wished to challenge earlier orders made by his Honour the appropriate venue was the Court of Appeal.

4. Mr Sethi commenced proceedings in this Court by way of Summons on 24 July 2025. In paragraph 1 of the Summons, he sought interim relief to be restored to the possession of the premises at Atchison Street, St Leonards, I have referred to. On 4 August 2025, the Judicial Registrar made orders including that under Part 13.4(1)(b), the proceedings were dismissed “as not discharging a reasonable cause of action and [amounted] to an abuse of process”. There has been no appeal from that order of which the Court is aware.

5. Mr Sethi then made, on the same day, an ex parte interim application before me for relief, including for an interim injunction under s 46 of the District Court Act 1973 (NSW). That was in the course of my usual directions list. On 4 August 2025, I dismissed that application.

6. Mr Sethi then filed a new Summons on 25 September 2025. The Summons sought various relief, but in paragraph 1 an interim injunction was sought, or an order under s 46 of the District Court Act 1973, that Mr Sethi be restored to the same unit in Atchison Street, St Leonards. That application was dismissed by his Honour, Fitzsimmons SC DCJ, on 26 September 2025.

7. An order was then made by the Judicial Registrar, placing limits on Mr Sethi's ability to file new proceedings. That was on 3 October 2025. The order was as follows:

“1. If the plaintiff files any further process in the Court, whether originating process or interlocutory process, in these proceedings or any other proceedings against the defendant, the registry shall promptly vacate any listing date, notify the parties, and refer the papers to the List Judge or Judicial Registrar to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether the plaintiff should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings or process as an abuse of process.”

8. Mr Sethi then applied before me, as list judge, for certain orders. I formed the view that the application by Notice of Motion by Mr Sethi was properly made within two weeks of the proceedings being dismissed, and it raised a further issue about compliance with an undertaking by the defendant. I referred the matter because of Part 36.16(3A) to his Honour, Fitzsimmons SC DCJ for determination. I understand that that matter is to be back before his Honour on 6 February 2026 to consider the application and that the transcript of what occurred before his Honour on 26 September 2025 and 17 October 2025 was desired by his Honour properly to consider the application.

9. Mr Sethi has appeared before me a number of times over the last two days seeking urgent interlocutory relief and I pointed out that there was no proceedings on foot, either by a Statement of Claim or by Summons, in order for me to grant any relief. I said that there was the necessity for new proceedings in order for the Court to have the power to grant relief because the previous two Summons had been dismissed.

10. In due course, Mr Sethi filed the Summons dated 8 December 2025. In paragraph 1 of that relief, similar relief to that in the previous Summons was sought, particularly that Mr Sethi be restored to possession of the premises in Atchison Street, St Leonards. Other relief is also sought including, it appears to me, against Hicksons Lawyers and requiring mandatory orders directed to the Sheriff and the New South Wales Police Force, but they are not parties to the Summons. This Summons was filed not pursuant to any formal direction on my part, but merely following me indicating to Mr Sethi that until proper proceedings had been commenced, there was nothing for the Court to act on.

11. Last evening, the Judicial Registrar, pursuant to the orders that he had made on 3 October 2025, rejected the filing of the Summons. The basis for that is set out in an email from the Judicial Registrar to Mr Sethi sent on 8 December 2025 at 5.33pm. That email will remain on the Court file. It followed my Associate forwarding correspondence with Mr Sethi to the Judicial Registrar which is normal where a litigant‑in‑person has filed an initiating process where the Court becomes aware of it through a judicial officer. Essentially, the Judicial Registrar refused to allow the Summons to be filed because he considered it to be “an abuse of process and frivolous and vexatious”.

12. The question with Mr Sethi making yet another application orally before me today, is whether this Court should entertain any application or any different view to that of the Judicial Registrar.

13. Of course, Mr Sethi has a right to appeal a decision of the Judicial Registrar to a single judge in the Supreme Court and any decision of his Honour, Fitzsimmons SC DCJ, or me to the Court of Appeal. I will not comment on the assertion by the Judicial Registrar that the proceedings are frivolous and vexatious. I will consider the decision that they are an abuse of process.

14. In the very recent decision of Allchin v Hunter Water Corporation [2025] NSWCA 253 handed down on 27 November 2025, the Court of Appeal considered the jurisdiction of this Court. In paragraph 47, the Court of Appeal noted that while the District Court was a court of inferior jurisdiction and may only have such powers as are expressly conferred on it or as are necessarily implied from the express conferral of jurisdiction upon and grant of powers to the Court, it has the power to control its own processes, and it was expressly stated that the District Court has the power to stay proceedings which are an abuse of process. Obviously, that power referred to in that case is after proceedings are properly commenced.

15. There have been a number of decisions which have considered the filing of multiple claims by a party seeking the same relief.

16. As is shown by my analysis above, each of the applications by Mr Sethi, by way of Summons although relying, it appears, on somewhat different evidence each time, largely seek the same relief of ordering possession to him of the premises in Atchison Street, St Leonards, on an urgent interim basis and related relief.

17. In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, the High Court of Australia considered a question of practice and procedure in relation to the permanent stay of proceedings for an abuse of process. The Chief Justice, Kiefel CJ, together with Bell and Keane JJ, in paragraphs 6 and 7 noted that to commence fresh proceedings raising the same substratum of facts, and in substance seeking the same claims against the same defendant, could amount to an abuse of process.

18. This principle has been made clear in a number of cases in the Court of Appeal where a similar view was taken. I need only mention two recent cases.

19. In Proietti v Proietti [2025] NSWCA 11, the Court of Appeal considered a situation where a party was making numerous applications seeking in substance the same relief. At paragraph 13, the Court of Appeal adopted statements in an earlier decision by it in Proietti v Proietti [2024] NSWCA 48 at [112] where their Honours held that “the repetition of arguments did not approve their force or cogency”, and that it could amount to be vexatious and oppressive so as to constitute an abuse of process.

20. In Mohareb v State of New South Wales [2025] NSWCA 156, the Court of Appeal in paragraph 45 noted that the applicant there had effectively made the same application twice (I note that it is the fourth time with Mr Sethi in the present case), and accordingly, their Honours held it was an abuse of process.

21. I therefore turn to consider the order made by the Judicial Registrar on 8 December 2025 in the light of the authorities which I have indicated, and in the context of Mr Sethi seeking the urgent interlocutory relief as set out in his Summons which was, effectively, not accepted for filing by the Judicial Registrar on 8 December 2025.

22. It seems to me that the decision made was open to the Judicial Registrar and therefore, I decline to intervene with that order.

23. Even if I had considered, as Mr Sethi urges, that the Judicial Registrar should not have dealt with the matter because he had some conflict, the replication of multiple applications seeking in substance the same relief would persuade me that the 8 December 2025 Summons amounts to an abuse of process.

24. The Court understands Mr Sethi's predicament. Mr Sethi wants to obtain, particularly over the holiday break, a restoration to the premises in St Leonards. He said he is willing to give an undertaking as to damages, as a basis for the interlocutory relief. There is nothing before me about his financial position to support that undertaking, and while I am highly sympathetic, the fact is that this Court has determined the application on a number of occasions.

25. Mr Sethi has his matter before Fitzsimmons SC DCJ in February 2026, but the continued and repeated applications seeking the same relief, in my view, do constitute an abuse of process and I do not propose granting the relief or intervening as to the order made by the Judicial Registrar.

26. The proper relief for Mr Sethi is to appeal the Judicial Registrar’s decision to the Supreme Court or the decision of mine to the Court of Appeal.

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