On 17 July 2023, after a hearing before me that day concerned with a number of notices of motion, I made orders not acceding to the defendant's motion under r 13.4 Uniform Civil Procedures Rules 2005 (NSW) ("UCPR"), but acceding to its alternative prayer for relief under UCPR 14.28 striking out the whole of the summons. I will not go over the grounds for that order, which are fully explained in my judgment which has the medium neutral citation of [2023] NSWSC 853. These reasons assume familiarity with the earlier judgment. I made other orders. I also refused prayers 1 and 2 in Mr Sethi's notice of motion of 22 June 2023. For completeness, they sought to have the notice of appearance served on him on 16 May struck out and the defendant's notice of motion of 6 June seeking summary dismissal itself dismissed. I granted leave for Mr Sethi to replead by filing and serving a statement of claim in compliance with the UCPR, and I stayed the proceedings unless and until that order was properly complied with. I made other consequential orders.
Sethi v The Owners - Strata Plan No 93392 [2023] NSWSC 907 | Case summary | Zoe
On 17 July 2023, and as it happens after my orders had been pronounced but before they had been entered on JusticeLink, Mr Sethi filed the notice of motion which is the subject of this judgment. He seeks the following relief:
1. Pursuant to UCPR rule 36.15(1), rule 36.16 and CPA s 63 orders made by the judge on the 17 July 2023 hearing for the matter are set aside.
2. A rehearing be conducted to deal with all of the orders sought in the plaintiff's notice of motion dated 22 June 2023.
As I explained in my judgment of 17 July, I dealt with only part of the relief sought in the various motions listed that day because that seemed to me to be logical. Obviously, if the proceedings were dismissed or the summons was struck out there was little point in dealing with other interlocutory disputes until the record was set straight, in the latter case by filing a pleading which complied with the rules.
When I explained my thinking about that at the commencement of the hearing Mr Sethi, and with Mr Lazarus of senior counsel appearing for the defendant, both agreed that that was the logical way to proceed, and I proceeded accordingly. Notwithstanding the stay of proceedings, when Mr Sethi's current notice of motion was drawn to my attention by the Common Law Case Management Registrar I informed her that I took the view that the matter should be dealt with notwithstanding the stay, and after checking with the Chief Judge at Common Law, the matter was allocated to me for hearing. All of this is in accordance with the usual practice of the Court and its internal management procedures.
I turn then to deal with the merits of the application to set aside the orders. The notice of motion is supported by an affidavit, affirmed by Mr Sethi on 18 July 2023 and apparently filed on 20 July. Although it is said to be an affidavit, after narrating a short history of the proceedings before me, it set out what are effectively Mr Sethi's submissions in relation to his current claims for relief. He also handed up (MFI-1) further written submissions this morning, to which he was given every opportunity to speak over the course of an hour or so. With great respect, essentially Mr Sethi submits that my decision was wrong and reiterates the substantive matters that he relied upon at the hearing before me on 17 July 2023. This, I think, involves something of a misconception as to what is involved in an application to set aside even interlocutory orders made by the Court.
I should say that the central issue really is whether Mr Sethi has successfully demonstrated a ground to set aside those orders under UCPR 36.15. In my judgment UCPR 36.16 does not govern the outcome of this application. It is mostly and centrally directed to the pronouncement and entry of final orders, the limited circumstances in which they may be set aside and it explains that by the exceptions it creates by reference to other categories of order in the succeeding sub-rules. Nor am I of the view that s 63 of the Civil Procedure Act 2005 (NSW) is pertinent. It certainly confers power on the Court to cure irregularities, but those irregularities really relate to matters done, or omitted to be done by the parties to litigation, rather than providing grounds for setting aside orders of the Court, whether interlocutory or otherwise.
I will focus on UCPR 36.15(1). It is in the following terms:
"A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered or the order was made, irregularly, illegally or against good faith."
It is very important to consider the scope of the order. It is primarily concerned with important matters of justice. That is to say, whether there has been a substantial departure from the proper rules of procedure in relation to the making, pronouncement or entry of the relevant order. It is subject to a discretion, in as much as sufficient cause needs to be shown. What it is not concerned with is a review for the detection of error in the determination of the merits of the previous dispute, the resolution of which resulted in the orders being made. If I may say so, respectfully, that is what the Court of Appeal is for. That is why it was important for me to point out that Mr Sethi's argument was in large measure misconceived, because he wanted to say that my decision was wrong on the merits as they were ventilated before me on 17 July 2023. To make good that central submission he wished to reiterate the arguments he had put on that occasion and which I had rejected, for the reasons I gave on that day.
He goes so far as to say that there was a denial of natural justice in the making of the orders on 17 July 2023, suggesting that there had been private prior communication between me and either the solicitor or senior counsel for the defendant. I have dealt with that assertion already today, in the reasons I gave for refusing Mr Sethi's application that I recuse myself. I will not repeat those reasons. It is sufficient to say, however, that had such a matter been made good by Mr Sethi it would not have justified me setting aside my orders. According to the decision of Davies J in Zakaria v Dr Noyce [2012] NSWSC 981 judgments which are entered in contravention of the requirements of the rules of natural justice are not entered against good faith within the meaning of the rule. I acknowledge that the failure to give a fair opportunity to a party to appear at the hearing and to be heard is an irregularity of a type that does entitle the party aggrieved to have the judgment set aside ex debito justitia. Obviously breaches of the rules of procedural fairness go to the jurisdiction of the court. However, as no point was taken on 17 July 2023 when my orders were pronounced, and indeed entered, even if after the filing of the motion, it seems to me that the proper course, if that point was to be made to call the validity of my orders into question, that too was a matter for the Court of Appeal. Notwithstanding that the orders are interlocutory, it has full power, were it to grant leave, to consider the matters put to it calling into question not only the validity, but also the correctness, of the orders. For those reasons, in my judgment, Mr Sethi's application under the only applicable rule, UCPR 36.15, must fail.
In my judgment of 17 July 2023, I dealt with Mr Sethi's complaints about what he regarded as the validity of, or perhaps rather invalidity, of the notice of appearance, and I dealt substantially with what he said, or submitted about rule 7.21. I said in my judgment that that was not the only ground, but it seemed to me, from the way the proceedings unfolded before me, it was the substantial ground of his complaint. I do not propose to revisit those reasons, however, having considered Mr Sethi's affidavit and his written submissions, and having listened carefully to his oral submissions, it may be that I overlooked the significance to him of what he was submitting in relation to UCPR 12.11, which confer a power on the Court on the application of a defendant to set aside originating process. However, the defendant's application was not one to set aside originating process. The defendant's application was, under rule 13.4 for summary dismissal, a quite different procedure, and in the alternative, as I have said, under 14.28 for the strike out of the summons, yet again a different procedure.
UCPR 12.11 really relates to circumstances where a defendant wishes to say either the court has no jurisdiction to determine the matter propounded by the plaintiff in its pleadings, or, if the court has jurisdiction, it is not the more convenient forum to consider the dispute brought forward by the plaintiff. Historically in the Supreme Court, a superior court of record, to invoke rule 12.11 or its predecessors a defendant had to be careful not to file an unconditional appearance because it would then be taken as submitting to the jurisdiction of the court, and its task of persuading the court to set aside the originating process would have increased exponentially. The modern Rule does not require such a nuanced approach, and the filing of an unconditional appearance does not deprive the defendant of the right to have the originating process set aside, in the type of situations which I have identified. I am not purporting to be exhaustive. I am merely giving examples of the type of situation in which UCPR 12.11 is applicable. That is not this case, and it was not applicable in this situation. Moreover, no relief was sought by the defendant under UCPR 12.11, and I certainly did not make any orders under it. Mr Sethi's reliance upon that provision is misconceived. It is inapplicable.
I should say that Mr Sethi also pointed out to me as another reason why he thought my decision was wrong, that trespass to land is given by the rules as a category of case which may be commenced by summons, and that is true. However, that does not, by any stretch of the imagination, make any difference, even were it possible for him to persuade me my decision was incorrect to that extent, for the more extensive reasons I gave for my ruling, given the nature of the relief he says he is entitled to, the proceedings had to be commenced by statement of claim. And nothing I have said in this judgment derogates from what I have said about the impermissibility of mingling criminal procedure with civil procedure in proceedings in the Common Law Division.
I do not propose to revisit my refusal of Mr Sethi's application under the Court Suppression and Non-Publications Orders Act 2010 (NSW). Once again, his submissions amount to no more than a contention that I was wrong on the merits of his application, and, with respect, UCPR 36.15 does not entitle him to have me revoke those orders on that basis. I should say that even were I considering the matter afresh, I am not persuaded by what Mr Sethi said today, which was essentially the same as he said on 17 July, that the non-publication order that he seeks would be an appropriate exercise of my power under that legislation.
For those reasons, I refuse the relief sought in the notice of motion filed on 17 July 2023, and I will dismiss it.
Mr Sethi also challenged the costs order. The costs order was, with respect to him, completely regular in the application of the rules that govern the exercise of the court's discretion to order costs. Had he been successful in having the principal orders, as I will describe them, set aside then it would have followed that the costs order too should be set aside. As he has not persuaded me that the principal orders should be set aside the costs order may also stand.
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Decision last updated: 02 August 2023
Parties
Applicant/Plaintiff:
Sethi
Respondent/Defendant:
The Owners - Strata Plan No 93392
Legislation Cited (4)
Court Suppression and Non-Publications Orders Act 2010(NSW)