Sethi v The Owners - Strata Plan No 93392 - [2023] NSWSC 1368 - NSWSC 2023 case summary

Supreme Court of NSW|2023-11-08|Before: Chen J, Campbell J

Introduction

These reasons deal with an application by the defendant for summary relief.
The grounds for pursuing that application are twofold: first, the allegations made by the plaintiff are - quite simply - fantastic and do not disclose a cause of action and, further, despite a relevantly unfettered grant of leave to permit the plaintiff to replead a claim against the defendant granted by Campbell J on 17 July 2023, the plaintiff has failed to file or seek leave to file any revised pleading; and, secondly, that the proceedings are frivolous, vexatious or an abuse of the process of the Court.

Background

I will set out the background facts across five parts (albeit some of them can be lightly sketched given the somewhat confined nature of the issues for determination) - as follows: first, some matters relating to the plaintiff's tenancy and the tenancy dispute; secondly, the "claim" made by the plaintiff against the defendant; thirdly, the procedural history of the plaintiff's "claim" in this Court; fourthly, the events leading up to the hearing of the defendant's notice of motion; and, fifthly, recent events and evidence.

The plaintiff's tenancy and the tenancy dispute

At least until reasonably recently, the plaintiff was a tenant in a unit located in St Leonards, New South Wales. The defendant is the owners corporation of that strata plan.
The plaintiff was involved in a dispute with his landlord that, ultimately, resulted in the termination of that tenancy. An order for possession was made by the NSW Civil and Administrative Tribunal ('NCAT') on 1 March 2023 - an order that was initially "suspended" to 29 March 2023.
The plaintiff appealed from that order, but an NCAT Appeal Panel, on 30 June 2023, refused the plaintiff's appeal - albeit that it varied the order for possession made on 1 March 2023 to take effect on 28 July 2023. Thereafter the plaintiff, unsuccessfully, sought to set aside or vary the decision, as well as seeking a stay of the orders made on 30 June 2023.
On 8 August 2023 the plaintiff filed a summons in this Court seeking, inter alia, an urgent injunction "to restrain i.e. a stay of execution by the sheriff of an order of possession dated 7 August 2023". The respondent to that summons was the landlord. That summons was returnable before Lindsay J on 8 August 2023 and, amongst other orders made, Lindsay J ordered that the summons be returnable before the Duty Judge on 10 August 2023 (order 2).
On 10 August 2023 the plaintiff filed - in the Court of Appeal - a Notice of Appeal challenging the orders made by the Appeal Panel on 30 June 2023 and 28 July 2023.
On 10 August 2023 Lindsay J refused the plaintiff's application for a stay of the orders made by NCAT.
It is not, on the material currently in evidence, altogether clear what occurred following 10 August 2023 in relation to the tenancy dispute. I was advised during the course of the hearing by the defendant that the matter had been recently dealt with, and the subject of orders made, by Henry J on 3 November 2023. When the defendant sought to explain the nature of what had occurred before Henry J, the plaintiff interjected indicating his strong objection to me being told what had occurred in the equity proceedings, and before Henry J in particular. Given the issues currently requiring consideration, I indicated that I did not consider it necessary to pursue the history of the tenancy dispute, and for the purposes of these reasons there is no reason to have regard to them beyond the limited way that I have earlier covered.

The plaintiff's "claim"

On 30 April 2023, the plaintiff filed a summons in this Court seeking $850 million in damages from the defendant.
The amount sought is based upon allegations that, somehow, the owners corporation committed (or was complicit in the commission) of a range of offences - including conspiracy to murder - under the Crimes Act 1900 (NSW). I will set out the key parts of the summons, including the heads of damage that form the basis of the claim for $850 million in damages: b. 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. c. 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. d. 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. e. 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. f. 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,
Following the service of the summons upon the defendant, the defendant's solicitor wrote to the plaintiff on 19 May 2023, pointing out the range of deficiencies with the summons, and he was invited to file an amended pleading. It should also be noted that the Registrar of the Court, when the matter was listed for directions on 16 May 2023, also pointed out to the plaintiff that there were deficiencies in the pleading and granted the plaintiff leave to file an amended pleading by 29 May 2023. No revised pleading was filed despite the invitation and the grant of leave.
The defendant, by way of notice of motion filed 6 June 2023, sought orders (relevantly), pursuant to rr 13.4(1) and 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) ('the UCPR'), that the summons be summarily dismissed or struck out.

The procedural history: a short summary

The defendant's notice of motion, and three other notices of motion filed by the plaintiff - motions that sought a range of procedural style orders, including to have the defendant's notice of appearance struck out as well as orders in connection with various notices to produce that issued - were listed for hearing before Campbell J on 17 July 2023 (Sethi v The Owners Strata Plan No 93392 [2023] NSWSC 853).
Campbell J described the plaintiff's summons as blending "allegations of crime in the form of contraventions of the Crimes Act 1900 (NSW) with a claim for civil damages": at [11]. Although the summons makes no reference to orthodox "civil" claims, based upon what was submitted to Campbell J during the course of the hearing, the plaintiff - aside from insisting that he was entitled to frame his summons that blended allegations of the criminal law with the civil law - apparently "had in mind a number of different torts", including the tort of trespass; intentional infliction of harm; conversion; and negligence (at [16]).
The underlying conduct, of which the plaintiff apparently complains, was noted by Campbell J in the following terms (at [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.
His Honour undertook a careful analysis of what was alleged (and what was argued by the plaintiff to support those pleadings) but nevertheless concluded, given the deficiencies in the pleading and the fact that allegations of this kind were required to be fully pleaded in a statement of claim (and not a summons) that there was "no alternative but to strike out the summons": at [19].
Although the defendant argued before Campbell J that no viable claim could possibly exist, Campbell J held that the question was not whether "a viable case is pleaded, but whether there might be an underlying case which is pleadable" (at [22]). As to this, Campbell J concluded as follows (at [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.
Campbell J relevantly made the following orders: 1. Prayers for relief 1 and 2 in the 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 and reasons of this decisions, on the defendant. 4. These proceedings are stayed unless and until order 3 is properly complied with. 5. List the matter for directions before the Registrar at 9am 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 application determined today. 8. Refuse the application for an order under s 7 Court Suppression and Non-publication Orders Act 2010 (NSW). (It should be noted that the terms of order 3 entered on JusticeLink were slightly, but not materially, different in that it required that any statement of claim redrafted by the plaintiff be "in accordance with the rules and reasons of this decisions, on the defendant").
Following the delivery of ex tempore reasons, and the making of orders, the plaintiff, that same day, and before the orders had been entered, filed a notice of motion seeking to set aside the orders made by Campbell J.
Although, when the matter was before the Registrar on 25 July 2023, the plaintiff sought to have the notice of motion that he filed on 17 July 2023 (that is, following the delivery of reasons and the pronouncement of orders referred to above, the motion seeking to set aside the orders earlier made) dealt with by another judge, the motion was referred to Campbell J. The plaintiff sought to have Campbell J disqualify himself from hearing the matter alleging (amongst other matters) bias. On 1 August 2023 Campbell J refused that application: Sethi v The Owners Strata Plan No 93392 (No 2) [2023] NSWSC 906.
On 1 August 2023 Campbell J also heard the plaintiff's notice of motion, dated 17 July 2023, and dismissed it: Sethi v The Owners Strata Plan No 93392 (No 3) [2023] NSWSC 907. His Honour did, however, vary order 3 pronounced on 17 July 2023 "to allow the plaintiff until 29 August 2023 to replead in accordance with that order".
Notwithstanding the terms of the orders made by Campbell J on 17 July 2023 - relevantly, staying the proceedings pending compliance with order 3: see order 4 in [20], above - the plaintiff filed (or attempted to file) a range of "documents", including a notice of motion dated 28 July 2023 (the notice of motion was filed on 29 July 2023), and an amended summons dated 28 July 2023 (which was filed that day) and an affidavit affirmed 28 July 2023 (the affidavit was filed on 29 July 2023). By the amended summons, the plaintiff proposed to join, as second defendant, the plaintiff's (former) landlord - but otherwise the amended summons was in identical terms to the one that was struck out by Campbell J.
Given the matter had been stayed, on 1 August 2023 Campbell J ordered that the notice of motion, affidavit and the amended summons (referred to above), "filed in contravention of the stay ordered on 17 July 2023 be removed from the court file, expunged from JusticeLink and returned to [the plaintiff]": Sethi v The Owners Strata Plan No 93392 (No 4) [2023] NSWSC 908. Further, in light of these developments, Campbell J considered that some "further restrictions" should be placed upon the plaintiff (Sethi v The Owners Strata Plan No 93392 (No 5) [2023] NSWSC 910).
In summary, across the four judgments delivered by Campbell J on 1 August 2023, his Honour made the following 10 orders: 1. Refuse the application for recusal. 2. Refuse relief sought in Notice of Motion filed on 17 July 2023 and dismiss the Notice of Motion. 3. Confirm the costs order made on 17 July 2023. 4. Vary Order 3 pronounced 17 July 2023 to allow the plaintiff until 29 August 2023 to replead in accordance with that order. 5. Vary Order 5 by deleting 21 August 2023 and list the matter for directions before Registrar on 6 September 2023 at 9 a.m. 6. Direct the notice of motion of 29 July 2023; the affidavit of 28 July and the amended summons of 28 July be removed from the court file and expunged from Justice Link. Hard copy may be returned to Mr Sethi. 7. Order the notice to produce for inspection dated 31 July 2023 served on Joe Cho be set aside. 8. Mr Sethi is not to take any step whatsoever in these proceedings unless and until he complies with Order 3 pronounced on 17 July 2023 as amended by me on 1 August 2023 within the time allowed unless he first obtains leave of a judge on application supported by affidavit which application is to be dealt with in Chambers in the absence of the parties. 9. If the defendant's solicitor is of the opinion that Mr Sethi has not complied with the rules in relation to any further pleading he brings forward the defence is at liberty on 3 days notice to Mr Sethi to apply to the Registrar on 6 September 2023 for the matter to be referred to the duty judge or another judge of the court to enable the defendant to re-argue its summary dismissal application. 10. The plaintiff is to pay the defendant's costs of today on the ordinary basis.
Notwithstanding the orders made by Campbell J, the plaintiff attempted to file notices of motion on 2 August 2023, 31 August 2023 and 20 September 2023. Those notices of motion sought a range of orders. It is presently unnecessary to refer to them except to note that the plaintiff has persisted in seeking to have the orders made by Campbell J set aside, or an order staying those orders.
The plaintiff filed a Notice of Intention to Appeal on 14 August 2023. That notice of intention to appeal identified the respondents as including Campbell J, his Honour's Associate, the legal representatives for the defendant as well as the Secretary, NSW Department of Communities and Justice. The plaintiff advised during the hearing that he had not filed a notice of appeal, or a summons seeking leave to appeal, following on from the filing of the Notice of Intention to Appeal.

The events subsequent to orders made 1 August 2023 in connection with the plaintiff's "claim"

In line with the orders made by Campbell J on 1 August 2023, the plaintiff was granted leave to file a reformulated statement of claim compliant with the provisions of the UCPR within 28 days - that is, by 29 August 2023.
The plaintiff did not do so by that time, or at all.
Instead, the plaintiff has attempted to file a series of notices of motion seeking, inter alia, to have the orders made by Campbell J on 17 July and 1 August 2023 set aside: notices of motions were filed on 2 and 31 August 2023. The second of those notices of motion was accompanied by an affidavit, affirmed by the plaintiff on 29 August 2023, in which serious allegations were levelled against the solicitor on the record for the defendant, and the firm of which the solicitor is a partner. (It will be necessary to return to some of these allegations, later).
The matter was listed for directions before the Common Law Registrar on 6 September 2023 when it was noted that the plaintiff had not filed any statement of claim by 29 August 2023. Given there was no compliance with the order made by Campbell J, and in line with order 2 made by Campbell J on 1 August 2023 (which, in short, granted liberty to the defendant to apply, when before the Registrar on 6 September 2023, to have its notice of motion listed for hearing), the Registrar listed the defendant's notice of motion for hearing on 27 October 2023.
On 20 September 2023, the plaintiff again attempted to file a further notice of motion that also sought to have the orders made by Campbell J, on 17 July and 1 August 2023, stayed.

Recent events and evidence

On 27 October 2023 the matter was listed for hearing before Walton J. At the hearing on that day, the plaintiff claimed (claims, I add, that were strongly contested by the defendant) that the Court Book and defendant's submissions had not been served upon him until the evening prior, with the consequence that he was not in a position to proceed. The plaintiff sought, and was granted, an adjournment of the hearing, and the matter was stood over for further hearing today.
The plaintiff had prepared an affidavit, affirmed 27 October 2023 for use at the adjourned hearing before Walton J, and he also filed on 7 November 2023 a further affidavit for use at the hearing on 8 November 2023. It is necessary to briefly refer to the content of each of those affidavits.
The affidavit of the plaintiff affirmed 27 October 2023 sets out the grounds "to dismiss the re-argument of the defendant's notice of motion filed 6 June 2023" (which included arguments that the notice of motion "was out of time and non-compliant" and that the defendant's "notice of appearance and its service is invalid") (section A); other "relevant grounds" - where the plaintiff repeats his allegations of misconduct against Campbell J, Campbell J's Associate, senior counsel for the defendant, the solicitor for the defendant and attaches communications that include those to and from the Court, as well as letters of demand sent to senior counsel for the defendant and the solicitor for the defendant (section B).
The affidavit of the plaintiff affirmed 7 November 2023 sets out some of the 'steps' that the plaintiff has taken in the proceedings since 17 July 2023 (section A); the orders the plaintiff sought in various notices of motion filed by him (sections B-D); and identifies the orders the plaintiff now seeks (section E). The orders sought by the plaintiff are set out in pars 82 - 92, and are as follows: 82 In Plaintiff's view, Court should. make below orders to have the proceedings streamlined and proceed in a meaningful way to address· the core matters in the issue. 83 Stay on Campbell J's orders made on 17 July 2023 and on 01 August 2023, up until a further order. 84 Dismiss Defendant's Notices of Motion filed 06 June 2023 and 07 June 2023. 85 Plaintiff-only access to all subpoena packets produced by the NSW Commissioner of Police. 86 Subpoenas to the non-parties as requested be issued without any further delay. 87 An Order for Production for the Defendant to be made to comply with the production ordered in the 'Notices to Produce for Inspection' and 'Notice to Produce to Court'. 88 A full sound recording be provided for the proceedings including the hearings conducted for the matter on 17 July 2023 and 01 August 2023. 89 Order for Department of Communities and Justice to provide all correspondence sent or received by his honour Campbell J, their chambers and their associate from the legal representatives of the Defendant including the Solicitor and their Counsel. Or in the alternate, hold on to make an order pending Plaintiffs applications to Issue a subpoena with the Registrar 90 Order for the legal representatives of the Defendant to provide all correspondence sent or received by his honour Campbell J, their chambers and their associate. Or in the alternate, hold on to make an order pending Plaintiff's applications to issue a subpoena with the Registrar 91 Any amended summons, pleadings or joinder be filed once the above production of documents and things be made in full. 92 Reserve a date for the directions for the balance of the Plaintiff's Notices of Motion.

The rules and principles: summary relief

In relation to the defendant's notice of motion, given that the summons has already been struck out pursuant to r 14.28, the defendant now presses for summary relief under r 13.4(1) of the UCPR.

The rules and principles: an overview relating to summary relief

Rule 13.4(1) of the UCPR provides: 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-- (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
A purpose of r 13.4 is to "save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings" and to protect "the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications": Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70].
The relevant principles that govern summary relief are settled: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 ('General Steel'). In General Steel, Barwick CJ explained the principles in these terms (at 129): The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.
The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]: [196] It is not in dispute that 'great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal': General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). [197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]: 'Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.' [198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24]. [199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]: 'The question is … whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.' [200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].
It is sufficient simply to note that an order under r 13.4(1) is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.

The basis for relief: the defendant's application

The defendant's essential submissions is that the Court should order summary relief, pursuant to r 13.4(1) of the UCPR for two reasons: first, given the plaintiff has failed to serve - in accordance with the orders made by Campbell J - a statement of claim setting out, in proper form, the allegations forming the basis of the claims that the plaintiff seeks to advance against the defendant, the Court should conclude that no viable claim exists, with the consequence that the Court should summarily dismiss the proceedings; and, secondly, the Court should conclude that the proceedings themselves are vexatious, oppressive or an abuse of process of the court, and that should also result in the summary dismissal of the proceedings.
I will deal with these submissions in order.

No viable claim

Before dealing with the defendant's submissions, it is important to note that I am, of course, conscious of the fact that the plaintiff represents himself and, I infer, is not legally trained: in such a situation the approach of the Court, when dealing with an application such as this, is one of particular caution to ensure that within an "ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form": Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536-537.
The critical question, in an application such as this, is "whether there is an underlying cause of action, not simply whether one is pleaded": O'Brien v Bank of Western Australia Ltd (2013) 16 BPR 31705; [2013] NSWCA 71 at [3]. However, as to this question, the following matters should be noted.
First, the plaintiff was granted leave to replead by Campbell J on 17 July 2023. The order granting that leave (as amended) required the plaintiff to file and serve a statement of claim, compliant with the pleading requirements under the UCPR, by 29 August 2023. The plaintiff did not comply with that order and, in fact, the plaintiff has not filed and served any revised pleading at all. Put simply, the plaintiff has been provided an opportunity to revise and bring forward his claim, but he has not done so.
Secondly, it is important to emphasise that Campbell J - despite holding some not in considerable doubt about whether there existed an underlying cause of action - allowed, by the grant of leave, the plaintiff "a final opportunity" to file a statement of claim. No doubt that Campbell J, in providing the plaintiff with such an opportunity, had in mind the fact that the solicitor for the defendant invited the plaintiff to file a revised pleading and, secondly, the Court had earlier granted the plaintiff leave to do so. The plaintiff has not, as I have noted, exercised the opportunity granted by Campbell J, nor any of the earlier ones.
Thirdly, the plaintiff can be in no doubt about the shortcomings of the summons that was filed by him: it is evident from the judgment (Sethi v The Owners Strata Plan No 93392 [2023] NSWSC 853 at [4]-[7], [11]-[16]) that Campbell J took time to explain the problems to the plaintiff, and what was required of him moving forward. The plaintiff, I add, was informed by the defendant both fairly and in considerable detail (assistance which extended to providing a hyperlink to the form to be used for a statement of claim, by way of example), by letter dated 19 May 2023 of the deficiencies in the summons filed prior to the defendant filing its notice of motion on 6 June 2023).
Fourthly, Campbell J also indicated to the plaintiff, during the course of the plaintiff's submissions, that it was necessary for the plaintiff to have his pleadings "in order" before it would be permissible for him to pursue various parties, including the defendant, for production of material. As is evident from the (short) overview of the procedural history, and the events subsequent to the orders made on 1 August 2023, rather than attend to the task of re-pleading any claim that he wished to advance, the plaintiff has sought to subvert the orders made by Campbell J by filing multiple notices of motions, an amended summons and otherwise taking steps (or attempting to take steps) in the proceedings contrary to the stay ordered by Campbell J. Indeed, as I have set out in an earlier part of this judgment (see [38], above), the plaintiff, by his affidavit sworn 7 November 2023, persists in his approach.
Fifthly, the plaintiff has not suggested that he had insufficient time to attend to the preparation of a revised pleading and, consistent with this, I note that at no point did he approach the Court seeking an extension of the time in which to file a revised pleading (albeit, as I have earlier noted, on 1 August 2023 Campbell J extended the time for the plaintiff to file a statement of claim, if he saw fit).
The plaintiff argued that although it is the case that no statement of claim has been prepared, there was no need to file a statement of claim because the order was not made. That of course is plainly not so. The plaintiff also argued that there was no need to comply with the orders because Campbell J had recused himself and it followed, the plaintiff argued, that there was no need to comply with the order. It is, of course, clear that Campbell J did not recuse himself (as I pointed out to the plaintiff during the course of submissions) and it is equally clear that his Honour made an order that the plaintiff was required to file a statement of claim by 29 August 2023.
The plaintiff next argued that because he had sought to file a notice of motion seeking to set aside or stay the orders made by Campbell J, then there was no need to comply with the order made requiring the plaintiff to file a statement of claim by 29 August 2023. This followed, so the plaintiff submitted, because the filing of the notice of motion (or a number of them) seeking to set aside or stay the orders made by Campbell J, the filing of those notices of motion had the effect of staying those orders. The plaintiff's argument was that order 8 made by Campbell J on 1 August 2023 meant that, upon the filing of a notice of motion by the plaintiff, the order requiring the plaintiff to serve a statement of claim was stayed.
I do not accept that submission. As I pointed out to the plaintiff during the course of his submissions, the orders are directed to different ends: one is directed to requiring the plaintiff to file a statement of claim; the other is directed to prevent the plaintiff from taking a step in the proceedings (unless that statement of claim is filed) other than by leave of a judge.
The plaintiff then sought an order that I stay the orders made by Campbell J. I refuse to do so. There are no grounds which would permit me to make that order, and all that was advanced by the plaintiff were the same arguments that were advanced before Campbell J on 17 July 2023 (essentially to the effect that the plaintiff has sought, and required production of material from, a range of parties including the defendant, the strata manager, the Commissioner of Police in order to prepare a pleading) and 1 August 2023 (when the plaintiff sought to have his Honour set aside the orders made on 17 July 2023). It was always open to the plaintiff to challenge the orders made by Campbell J by appeal, if he considered it appropriate to do so. He has not done so, and it seems intends not to do so.
The fact that there is no revised pleading, or indeed any attempt to provide a revised pleading, is significant - as is the fact that the plaintiff has persistently sought to circumvent the orders made by Campbell J: the inference available, which I draw, is that the plaintiff is both unwilling and unable to prepare a properly pleaded statement of claim. The plaintiff has had nearly six months (since the commencement of proceedings) to bring forward a pleading that clearly and coherently identifies the claims to be advanced (as well as identifying the material facts upon which those claims are based), but he has not done so.
None of the "civil" claims raised during the course of submissions by the plaintiff when before Campbell J have featured in a statement of claim (as to which see [16], above), nor has the plaintiff identified evidence, even in an appropriately preliminary way, that might upon an examination be capable of supporting those claims (or to support any claim based upon the allegation that some of his possessions had been "disturbed": see [17], above). As the plaintiff sought to explain during the course of submissions, what lies at the heart of his complaints (in addition to what has been earlier described: see [17], above) are what he described during submissions as "government corruption" that extended to unlawful surveillance and monitoring of communications (his phone calls and emails) and that unlawful surveillance extended to those representing the defendant having access to his "email box". The plaintiff insisted that it was necessary for him to have documents from a range of parties or persons in order for him to prepare his pleading including from the Department of Communities and Justice; senior counsel who appeared for the defendant at an earlier hearing; the solicitors for the defendant; Reporting Services Branch (to secure sound recordings of court proceedings so as to establish, as the plaintiff alleged, that transcript had been the subject of alterations and tampering); the Commissioner for Police; the service providers who appeared to provide CCTV monitoring of the defendant's premises and potentially others.
The summons was filed nearly 6 months ago and despite the grant of leave, nothing has transpired nor is there anything that might instil any confidence that the position is likely to change. I am satisfied, based upon the various matters that I have referred to above, it will not.
I am, as I have earlier noted, conscious of the fact that the plaintiff represents himself. Nevertheless, the point has been reached requiring the plaintiff to take responsibility for his choices. In my view, the proper conclusion is that the proceedings are baseless, without merit and therefore doomed to fail: it is "possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance": Ugur at [117] citing Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1; [2001] UKHL 16 at [95]; Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [21]-[25].

Introduction

The defendant also submitted that the proceedings should be dismissed because they are frivolous, vexatious, an abuse of the process of the court or a combination of these matters (defendant's submissions dated 13 October 2023 at [31]-[33]).

Frivolous, vexatious etc. proceedings: background principles

In Rana v Commonwealth of Australia [2013] FCA 189 at [41]-[43] ('Rana'), Mansfield J provided the following helpful summary of the background principles: 41. In Pickering v Centrelink [2008] FCA 561, McKerracher J made the following useful observations at [27] about when a proceeding is frivolous, vexatious and/or an abuse of process: In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434, although the majority (Allsop and Conti JJ) reached a different ultimate conclusion, there is, with respect, a helpful collection of authorities by Gray J on 'frivolous' at [16]-[22] from which it may be concluded that if, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, it is frivolous. A matter is also frivolous when it is without substance or groundless or fanciful: Bullen & Leake Precedents of Pleadings (1975) 12th ed, p 145. However such matters will only be struck out when it is so obviously frivolous that to put it forward, would be an abuse of the process of the court: Young v Holloway [1895] P 87. The words 'frivolous' or 'vexatious' are used either separately or in conjunction, or interchangeably with the expression 'abuse of the process of the court': Young v Holloway [1895] P 87 at 90-91. 42. Proceedings have been held to be "vexatious" in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481. 43. It has also been pointed out that "vexatiousness" is a quality of the proceeding rather than a litigant's intention so that the "question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious": Re Vernazza [1960] 1 QB 197 at 208.
As the decision in Rana (and the authorities referred to in that decision) emphasise, proceedings that are frivolous or vexatious can also amount to an abuse of the process of the Court and the expressions frivolous or vexatious can be, and often are, used interchangeably with abuse of process: Crocker v Toys 'R' Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9]. That point was also made in Ridgeway v the Queen (1995) 184 CLR 19, 74-75; [1995] HCA 66: The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment".
The defendant did not seek to develop, separately, an analysis of the concept of abuse of process (as to which see UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] and [72] and Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]) other than a way of expressing that the plaintiff's proceedings were properly characterised as frivolous or vexatious. I have approached the matter on that footing.

Discussion and consideration: proceedings that are frivolous, vexatious or an abuse of process

In my view, the proceedings admit to each of these characterisations. I will explain why I consider this to be so in what follows.

Abuse of the process of the court

It may be accepted that a "claim" that is sought to be advanced - such as the present one - that has no realistic prospect of resulting in an adequate pleading that fulfils the fundamental functions of a pleading and involves unjustifiable expense or use of judicial resources may amount to an abuse of the processes of the Court: Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [43]; Rana at [41]-[42]. That is the position here, in my view.
As I have earlier explained, none of the "civil" claims raised during the course of submissions by the plaintiff when before Campbell J have featured in a statement of claim, nor has the plaintiff identified evidence, even in an appropriately preliminary way, that might upon an examination be capable of supporting those claims. The summons was filed nearly 6 months ago and despite the grant of leave, nothing has transpired nor is there anything that might instil any confidence that the position is likely to change. Indeed, based upon the orders sought by the plaintiff in his most recent affidavit, I am satisfied it will not.
Furthermore, the way and manner in which the proceedings have been conducted have caused, in my view unjustifiably, additional cost and expense (not to mention judicial resources). In relation to the additional costs involved - being costs incurred as a consequence of the plaintiff's conduct and not arising from costs that might reasonably be anticipated to be incurred in consequence of reasonably conducted proceedings in the Court - in my view the need for the defendant to incur those costs is apparent (I find) from even the limited procedural history that I have set out (in addition to the matters set out in the balance of this judgment). In this respect the defendant submitted that it had been required to expend considerable amounts in connection with legal costs - said to be "in excess of $100,000 in legal costs to date in these proceedings" - as a consequence of the way in which the plaintiff has conducted them (defendant's submissions dated 13 October 2023 at [55]). There was no specific evidence directed to proving the precise amount incurred, nevertheless I accept that the defendant has been required to unjustifiably and unnecessarily incur legal costs by reason of the plaintiff's conduct of these proceedings.

Frivolous and vexatious

In my view the following matters, and their combination, are relevant to an assessment of whether the proceedings are frivolous or vexatious
First, the form of the plaintiff's summons (that included a claim for damages for $850 million), and the failure of the plaintiff to attend, despite the grant of leave, to filing a statement of claim in proper form. I have already referred to the circumstances that have arisen in that context when dealing with whether there is a viable claim. The inference that I draw, and the finding that I have made, is that there is no viable claim.
Secondly, the plaintiff, contrary to the orders of Campbell J, filed - or attempted to file - multiple notices of motion, as well as an amended summons and other material. It appears that the plaintiff harbours a misguided view that the "orders made by Campbell J … are not binding and not in-force" - which may explain why he has acted as he has: plaintiff's affidavit affirmed 27 October 2023, par 27.
Thirdly, the plaintiff has engaged the Court's processes in a manner that is patently improper. For example, the plaintiff filed a Notice of Intention to Appeal from the orders of Campbell J and in doing so has named as respondents to that intended appeal as Campbell J; Campbell J's Associate; the solicitor for the defendant; senior counsel for the defendant; and the Secretary, NSW Department of Communities and Justice. There is no justifiable reason for the addition of any other party other than the defendant to this notice of intention to appeal. Further, the plaintiff has expressed his intent to add the Commissioner of Police to proceedings, once he has had access to the documents produced under subpoena - albeit that the basis for him doing so is obscure (plaintiff's affidavit affirmed 27 October 2023, par 9).
Fourthly, the plaintiff has used the processes of the Court to raise scandalous matters against those who have had some 'involvement' with the plaintiff's claim. Examples of this conduct include the following.
The plaintiff has raised allegations that the conduct of the proceedings by a Judge of this Court involved "corruption … and misconduct in a public office" (plaintiff's affidavit affirmed 27 October 2023, par 29). These allegations were repeated during the course of the hearing. The plaintiff also suggested to a Senior Deputy Registrar of the Court, in the course of a directions hearing that sought to list the defendant's notice of motion for hearing and to advise the plaintiff that a document that was filed by him would be refused, that the decision involved "corruption". The plaintiff has also alleged that the transcription of proceedings has - at least on some occasions - been "altered or tampered with". Those allegations were also repeated during the course of the hearing.
The plaintiff has repeatedly sought to impugn the integrity of the legal representatives for the defendant, that has included the following allegations: (a) that there had been private correspondence between the defendant's legal representatives and a Judge of this Court, as well as interfering with material within a Court Book - suggested by the plaintiff to involve "a deliberate effort to misguide the court and the Plaintiff by the Defendant's legal representatives" (plaintiff's affidavit affirmed 27 October 2023, pars 30-33). The plaintiff had, in an earlier affidavit, made broadly the same allegation - namely - that the defendant's legal representatives "may have been involved in a (sic) misleading, fraudulent and deceptive conduct by engaging in the private communication with the judicial staff in order to influence or otherwise impact the proceedings" (plaintiff's affidavit affirmed 29 August 2023, par 51); and (b) the plaintiff - in open court on 17 July 2023 - suggested that there had been tampering of evidence.
These allegations of serious misconduct - including allegations of "corruption", "misconduct in a public office", alterations and tampering of the transcript of prior proceedings and that there has been, within the Court, a "cover-up" of misconduct - have persisted in the plaintiff's most recent affidavit affirmed 7 November 2023: see pars 7-26. They were also raised during the course of the hearing.
In relation to the defendant's legal representatives, the plaintiff's conduct has extended well beyond the allegations made in the above example. It has included sending a "Letter of Demand" to senior counsel for the defendant and to the solicitor for the defendant requesting production of material that the plaintiff apparently believes exists to make good the allegations that there had been inappropriate contact between the Court and those representing the defendant.
It should also be pointed out that, in relation to the various allegations that the plaintiff has made during open court and in affidavits, that Campbell J warned the plaintiff about making serious and unfounded allegations (Sethi v The Owners Strata Plan No 93392 (No 2) [2023] NSWSC 906 at [3]): He has also submitted that the transcript has been tampered with and he has suggested that this shows collusion between me and the representatives of the defendant. Of course, that is a very serious charge, not only against me, but also against the legal representatives of the defendant who are lawyers in good standing within their respective branches of the profession. I have tried to explain to Mr Sethi, at least so far as the lawyers are concerned, that his right to appear in court as a self-represented litigant is a great privilege which is not to be abused and that making unfounded allegations of egregious misconduct against members of the legal profession appearing in the interests of the party he has sued would, in a lawyer, amount to professional misconduct of a type that would call into question their ability to remain a member of the legal profession.
In my respectful view, the matters that I have referred to satisfy me that these proceedings are frivolous and vexatious. It goes without saying that the matters that I have referred to are antithetical to the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the CPA.
For the above reasons, I consider that the proceedings are frivolous and vexatious and an abuse of the process of the court within r 13.4(1) of the UCPR.

Costs

The defendant seeks an order not only that the plaintiff pay the costs of, and incidental to the proceedings, but also that those costs be payable on an indemnity basis. The defendant submits that such an order should be made given the plaintiff's improper conduct during the course of these proceedings, particularly in circumstances where the defendant had explicitly warned the plaintiff, by letters sent 5 September 2023 and 13 October 2023, that it would seek such an order.
The plaintiff opposes not only that there be an order for costs, but further that any costs be awarded on an indemnity basis. The plaintiff's essential submission is that it is fault of the defendant (or those that represented the defendant) that there has been delay in proceedings. I do not accept that submission.
Before moving to deal with the substance of what was argued, it is well to recall the comments of Allsop P in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [5]: Three things need be borne in mind in a judgment such as this on costs: the desirability of avoiding unnecessary recitation of cases (abounding as they are in this area); the desirability of not restating, in different terms, approaches to the broad discretion that have been well settled; and the desirability of dealing with the arguments without over-elaboration, if this is possible.
These reasons on costs are approached with these remarks firmly in mind.
The Court has power to order indemnity costs: s 98(1)(c) of the CPA.
The starting point is an acknowledgment of the ordinary rule and the exception to it: namely, that the costs that are payable are on the ordinary basis and that the circumstances of a particular case must be such "as to warrant the Court in departing from the usual course": Colgate Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, 233; [1993] FCA 801 ('Colgate Palmolive'). In this latter respect, what is needed is that "there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice": Colgate Palmolive at 233. That feature is not confined to, although it may include, an "ethically or morally delinquent party" (Botany Municipal Council v Secretary, Department of the Arts (1992) 34 FCR 412, 415; [1992] FCA 194) That is, the Court "requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation" Rosniak v Government Insurance Office (1997) 41 NSWLR 608, 616. The "unreasonable conduct" must be "conduct in the proceedings of the party against whom the order is sought": Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6].
In my view the conduct of the plaintiff during the course of the proceedings including that which follows justifies a finding that the plaintiff has engaged in "unreasonable conduct" of the requisite kind and that an order for indemnity costs should be made: 1. First, the plaintiff was put on notice by the defendant by a letter dated 19 May 2023 that set out - in considerable detail - the deficiencies in the summons. It is important to emphasise that this letter offered practical and helpful assistance to the plaintiff to assist him in preparing, in appropriate form, a claim against the defendant (assistance which extended to providing a hyperlink to the form to be used for a statement of claim, by way of example) and, further, an invitation for the plaintiff to replead the claim against the defendant. A Registrar of the Court also granted the plaintiff leave to replead. Neither the invitation from the defendant, nor the grant of leave, were acted upon by the plaintiff. When striking out the summons on 17 July 2023, Campbell J also assisted the plaintiff by identifying the many flaws in the pleadings. Notwithstanding these matters, rather than taking proactive steps to plead his claim against the defendant, the plaintiff has directed his energy towards re-agitating - or seeking to set aside - the orders made by Campbell J. 2. Secondly, rather than attempt to replead the claim, the plaintiff's persistence in the course he has chosen has led, unnecessarily, to repeat interlocutory applications as well as the need for those representing the defendant to deal with other matters - such as the allegations levelled against them - which I accept has involved significant escalation in the legal costs incurred by the defendant. 3. Thirdly, the plaintiff has, I have concluded, no viable action. 4. Fourthly, the plaintiff has consistently made scandalous allegations of serious misconduct against all manner of persons to which reference has been made - allegations that have repeated in the plaintiff's affidavit affirmed 7 November 2023, and allegations that were substantially repeated in the course of the hearing. 5. Fifthly, the plaintiff has, contrary to the orders of the Court, sought to file documents and take other steps in proceedings which has unreasonably and unjustifiably prolonged - and increased the costs of - this litigation, and impacted adversely upon the defendant (who is required to bear those costs). 6. Sixthly, the defendant put the plaintiff on notice that they intended to seek an order for indemnity costs, by way of letter dated 5 September 2023 and set out a number of matters which it argued supported such an order - including pointing out that the plaintiff's "inappropriate conduct of the proceedings to date" had caused the defendant to incur excessive and unnecessary legal costs.

Orders

For the above reasons I make the following orders: 1. Order that, pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings be dismissed. 2. Order that the plaintiff pay the defendant's costs of the proceedings on an indemnity basis.

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: 13 November 2023

New South Wales Crimes Act 1900(NSW)

Sethi v The Owners - Strata Plan No 93392

At a glance

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