On 17 July 2023 I heard a number of applications in this matter and made orders after giving ex tempore reasons. My judgment has a media neutral citation of [2023] NSWSC 853. On that same day, and before the orders had been entered, Mr Sethi filed a notice of motion to have the orders I pronounced on that day set aside pursuant to Rule 36.15 or Rule 36.16 of the Uniform Civil Procedure Rules 2015 (NSW) or section 63 of the Civil Procedure Act 2005 (NSW). An affidavit in the form of written submissions, affirmed on 18 July 2023, was filed on 20 July in support of that application.
The matter was before the registrar on 25 July 2025 when the parties were informed that the matter had been allocated to me to consider in court, at which point Mr Sethi indicated that he would prefer the matter to be allocated to a different judge. Mr Sethi has communicated with my chambers requesting me to recuse myself and he has made that application today in open court. His argument is that I am biased because I have communicated privately with the legal representatives of the defendant. As the transcript will show, I have invited Mr Sethi to adduce evidence to found his suspicion in that regard and he has produced none.
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.
The simple fact of the matter, as the transcript will show and as I have addressed with Mr Sethi, the only person who has asserted a right to communicate with my chambers in a private way without either obtaining the prior agreement of the other side or copying them in is Mr Sethi himself. When this was pointed out to him by my associate, he insisted that there was no need to obtain consent and persisted in his communications with my chambers as though that was his right or entitlement. In this context, copying in the solicitors for the defendant, I instructed my associate to write to Mr Sethi and direct him to cease communicating with my chambers and informing him if he was not prepared to abide by my direction in accordance with the well-established practice unless he had the agreement of the defendant's solicitors or, at the very least, copied them in. I directed that any communication with my chambers should come through the registry and that if he defied that direction, as he did more than once, that I would direct my associate to delete his emails. I directed that a number of his emails be deleted for the purpose of adhering to the invariable and well-established practice of restricted communication between parties to litigation and the judiciary. I did so for the purpose of preserving the appearance of justice. Mr Sethi has allowed himself to tell me that deleting his emails was improper, but quite the contrary, it was necessary if the usual proprieties were to be maintained and the appearance of justice was to be preserved.
I will put on the record, although it is unnecessary to do so because it is really unbecoming for the Court to respond to completely unfounded suspicions harboured in the mind of a litigant, that prior to the last hearing before me there were two emails received from the lawyers for the defendant. As I directed my associate to advise Mr Sethi, they both emanated from the office of the solicitor for the defendant, Ms Holland, and not from counsel. On each of those occasions Mr Sethi was copied into the email at an address which he acknowledges is his active address. They were entirely routine communications in relation to the court book and written submissions both of which had been served on Mr Sethi. The allegation that there has been private communication between my chambers and the legal representatives of the defendant is completely unfounded and I reject it.
There is an important principle. The principle is that justice must not only be done, but also must be seen to be done. A judge who is actually biased or in whom there may be an apprehension of bias, of course, must recuse himself or herself. But there is a companion principle which is that it is the obligation of a judge to decide the cases which have been allocated to the judge who must not refuse to exercise his or her duty in that regard. That matter of public duty admits of only one exception and that is the bias rule.
The idea that I have some actual bias towards Mr Sethi is completely without foundation and he has not been able to point to any circumstance which, properly understood, contains even the hint of the merest suggestion of bias.
He has made complaints about the transcript of the hearing of 17 July 2023. He has said that the transcript demonstrates that there had been private communication between my chambers and the solicitors or the counsel for the defendant. On the last occasion, the defendant was represented by Mr Lazarus of Senior Counsel. The first aspect of the transcript to which Mr Sethi drew my attention was at page 10, line 21, where I made the remark when Mr Sethi was addressing me about s 76 of the Crimes Act 1900 (NSW), "Mr Lazarus was going to give me some copies of the Crimes Act." Mr Sethi suggested that that demonstrated that I had had some communication out of court with Mr Lazarus about that. That assertion is completely unfounded. As my recollection supports and as Ms Holland drew to my attention at page 6 of the transcript, around line 15, Mr Lazarus said to me:
"I don't know whether it would assist, it may or may not, depending on your Honour's view, whether your Honour wishes to have copies of all of those relevant provisions, but ultimately they are provisions relating to conspiracy to murder, attempted murder and various other trespass and firearms type offences, including armed robbery."
He also made reference to my comment that the defendant's motion of 6 June was filed first in time. Mr Sethi seems to have misunderstood my use of the expression "in time". He took it as suggesting, contrary to his submission, that they had been filed in a timely way. I do not make any comment about that for present purposes. The expression "first in time" is an ordinary expression which means no more than chronologically it was first. Mr Sethi pointed out that I was in error about that because he had a motion filed on 2 June. However that may be, that statement by me, which was repeated a little later, is not capable in any way of suggesting any private communication at any time between me and the solicitors or counsel for the defendant.
He also took exception to Mr Lazarus using the expression that, when Mr Sethi was queried about the allegation that the defendant had trespassed in his apartment, he was unable to identify who it was he said trespassed. He suggested that was an argument by Mr Lazarus which suggested there had been some interrogation of Mr Sethi at some point, which had not occurred. I must say I do not understand that submission, but it is quite clear that the submission does not in any way support the idea that there had been private communication between the solicitors for the defendant and/or counsel for the defendant and my chambers or me.
Mr Sethi has also referred to what he said is a gap in the record of proceedings between page 24 line 30 and page 25 line 1. What is recorded at page 24 is the following:
"I had hoped to give my judgment at midday, but I'm afraid that won't be possible now. I'll come back at 12.30."
The transcript then records that I took a short adjournment. I did that for the purpose of considering my decision. At page 25 of the transcript, at the top of the page, the record is: "For judgment see separate transcript". And that accurately records that when I resumed sitting, at about 12.30, I immediately gave my judgment resolving the interlocutory dispute that I had heard that morning. There is in fact no omission of anything on the transcript occurring in court between me taking the short adjournment and commencing to give my oral judgment in court. And there is absolutely no suggestion, again, that there is anything to support Mr Sethi's submission other than his baseless suspicions.
In truth, Mr Sethi seems to have decided that I must be prejudiced because my decision was adverse to his interests. I was obliged to decide the case conscientiously in accordance with the law as I understood it to be, applying that law to the evidence led before me. It is simply a truism to say that when there is a contest in court involving two parties, generally speaking one party will lose. And the fact that a party loses does not in any way, by any stretch of anyone's imagination, suggest that the judge must have been biased against the losing party. And I reject the submission so far as it may be based upon that.
So far as Mr Sethi relies upon what he may regard as the appearance of bias, rather than actual bias, I remind myself that the law in this regard is well understood. It is established by the decision of the High Court of Australia in Ebner v Official Trustee in Bankruptcy at (2000) 205 CLR 337; [2000] HCA 63. Gleeson CJ, McHugh, Gummow and Hayne JJ said (at [6]):
"Where...a question arises as to the independence or impartially of a judge...as here, the governing principle is that, subject to qualifications relating to waiver… or necessity… , a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial."
Their Honours also went on to say that the application of the principle requires two steps (at [8]):
"First, it requires the identification of what it is said might lead a judge...to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge...has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
Mr Sethi's argument in this case does not rise above anything other than mere assertion, and this second principle is for that reason not engaged. Other than the baseless assertion there has been some private communication between me and the solicitors or counsel for the defendant, nothing else is put forward. And in the absence of making good the matter which he asserts, there can be no question of applying the second principle identified by the High Court. They simply emphasise in this case, to my mind, that really the application that I recuse myself must be refused and that I must adhere to what I have referred to as the companion principle that the case has been allocated to me for hearing and I will do my duty in relation to it.
I refuse the application for recusal.
[3]
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Decision last updated: 02 August 2023