Chandrasekaran v Commonwealth of Australia

The main proceedings 3 On 14 June 2019, Dr Chandrasekaran commenced the present proceeding in this Court by filing an originating application. The originating application named the Commonwealth and the State as the respondents. In the main proceedings, Dr Chandrasekaran seeks permanent injunctions restraining the Commonwealth and the State from engaging in a long list of conduct. Expressed in the broadest possible terms, that conduct includes harassment, stalking, "gaslighting", breach of privacy, defamation, fraud, injurious falsehood, breach of fiduciary duty, misfeasance in public office and conspiracy. It would appear that Dr Chandrasekaran contends that she is entitled to that relief because, amongst other things, the Commonwealth and the State have contravened and are continuing to contravene various provisions of the Criminal Code Act 1995 (Cth), the Telecommunications Act 1996 (Cth), the Privacy Act 1988 (Cth), the Surveillance Devices Act 2007 (NSW) and the Health Practitioner Regulation National Law 2009 (NSW). 4 Dr Chandrasekaran did not file a statement of claim along with the originating application. Instead, she filed, as she was entitled to do, a lengthy affidavit which purported to particularise and provide evidence in support her claims against the Commonwealth and the State. I will say something more about that affidavit in due course. 5 Dr Chandrasekaran's originating application also seeks interlocutory injunctions restraining the respondents from engaging in the types of conduct which are the subject of the final relief already referred to. It is the application for those interlocutory injunctions upon which Dr Chandrasekaran moves the Court today. 6 On 27 June 2019, Dr Chandrasekaran filed an interlocutory application. As already adverted to in that interlocutory application, Dr Chandrasekaran applied for a search order against ACACC and sought leave to issue a subpoena to that company which would require it to not only produce documents but also to give evidence.

Evidence in support of the interlocutory relief 7 Dr Chandrasekaran relied on two affidavits in support of the interlocutory relief sought by her. The first affidavit, affirmed on 14 June 2019, is the affidavit which she filed together with the originating application. I will refer to that affidavit as the main affidavit. Dr Chandrasekaran filed a second affidavit, affirmed by her on 27 June 2019, in support of her interlocutory application for the search order. I will refer to that affidavit as the search order affidavit. 8 The main affidavit is itself a very lengthy affidavit. It annexes three earlier affidavits affirmed by Dr Chandrasekaran which appear to have been prepared for and perhaps filed in other proceedings which Dr Chandrasekaran has commenced in this Court. Those proceedings are against the Royal Australian and New Zealand College of Psychiatrists (NSD 1535 of 2018 proceeding). I will refer to those three annexed affidavits as affidavit A, affidavit B and affidavit C, which is the terminology used by Dr Chandrasekaran in her affidavit. Those three affidavits are dated 30 November 2018, 5 June 2019 and 24 May 2019 respectively. Affidavits B and C annex a large number of documentary exhibits, with the result that the main affidavit exceeds 200 pages in length. 9 It would appear from affidavits A, B and C that Dr Chandrasekaran is a psychiatrist. Her action against the College involves serious allegations that she has, for many years, been subjected to harassment, bullying, intimidation and other forms of unlawful and tortious conduct by other psychiatrists and other persons with whom she worked or had some other form of professional association. It would also appear that these proceedings relate in some way to, or perhaps even emanate from, the NSD 1535 of 2018 proceeding. That is because it would appear that the essence of the claim that Dr Chandrasekaran wishes to advance in this proceeding against the Commonwealth is that the harassment, intimidation and breaches of privacy that she has suffered at the hands of others has somehow been facilitated or assisted by a counterintelligence program run by Commonwealth agencies, including the Australian Defence Force, the Australian Signals Directorate and the Australian Security and Intelligence Organisation. It is the alleged utilisation of those counterintelligence programs that Dr Chandrasekaran claims constitute contraventions by the Commonwealth of the Telecommunications Act, the Privacy Act, the Surveillance Devices Act, the Health Practitioner Regulation National Law and the Criminal Code. 10 Dr Chandrasekaran also appears to allege that the Commonwealth and its agencies somehow became involved in the various forms of unlawful conduct against her at the behest of a particular doctor, who is said to have some current or former association with the Australian Defence Force. 11 As for the claim against the State, Dr Chandrasekaran's allegation appears to be that the various doctors who have harassed and intimidated her over the years are or were employed by New South Wales Health and, therefore, the State. Those doctors are also alleged to have intimidated Dr Chandrasekaran through the fraudulent application of the Health Practitioners National Law. It would seem that the claims of harassment and intimidation by the doctors who are or were employed by the State of New South Wales are also the subject matter of the NSD 1535 of 2018 proceeding. 12 The annexures to affidavits B and C of Dr Chandrasekaran's main affidavit reveal that Dr Chandrasekaran has also commenced proceedings in the Supreme Court of New South Wales and that those proceedings relate in some way to her treatment by various doctors and the bodies who employ them. She has, for example, commenced proceedings in 2018 against the Western Sydney Local Health District and a particular doctor. Those proceedings also appear to include claims of alleged persecution and harassment. 13 The contents of the search order affidavit will be referred to in some more detail later. It suffices, for present purposes, to note that the affidavit purports to detail specific incidents in which emails sent or received by Dr Chandrasekaran were accessed by ACACC. Dr Chandrasekaran appears to allege that ACACC is or has been conspiring with the Commonwealth and perhaps the State to intercept or access her private electronic communications or data.

The application for an interlocutory injunction 14 The relevant principles in relation to the grant of interlocutory injunctions are well settled. They were summarised and explained by the Full Court in Samsung Electronics Co Ltd v Apple (2011) 217 FCR 238. It is unnecessary for present purposes to refer to those principles in detail. It suffices to say that, in order to secure an interlocutory injunction, an applicant must ordinarily show three things: first, that there is a serious question to be tried, or that the applicant has made out a prima facie case in the sense that, if the evidence remains as it is, there is a probability that, at the trial, the applicant will be held entitled to relief; second, that the applicant will suffer irreparable injury for which damages will not provide adequate compensation; and third, that the balance of convenience favours the granting of an injunction. 15 I am not satisfied, on the basis of the material presently before me, that Dr Chandrasekaran has satisfied any of those three requirements for the making of an interlocutory injunction. 16 As for the claims against the Commonwealth, I am not satisfied on the basis of the evidence presently before me that there is a prima facie case or a serious question to be tried that the Commonwealth, or any of its agencies, has engaged in any of the unlawful conduct alleged by Dr Chandrasekaran. The basic problem for Dr Chandrasekaran is that, even if there was sufficient evidence to indicate that her online accounts or emails have somehow been accessed or interfered with by others, there is insufficient evidence to support her allegation that the Commonwealth is in any way responsible for that access or interference. 17 Dr Chandrasekaran's claims that various Commonwealth agencies have used counterintelligence programs or allowed such programs to be used by others appears, at this stage at least, to be based on nothing more than bare assertion or speculation on her behalf. Dr Chandrasekaran has not identified the specific provisions of the various Commonwealth and State Acts which she alleges have been contravened, let alone the particular individuals or entities that have allegedly contravened those provisions. Her allegations of tortious conduct and other common law causes of action against the Commonwealth are also, at this stage at least, entirely unparticularised and appear to amount to little more than broad or sweeping assertions based mostly on speculation. The basis of the Commonwealth's liability for the other tortious or unlawful actions is presently unclear. 18 Dr Chandrasekaran has also failed to demonstrate any prima facie case against the State. As already indicated, her case against the State appears to be based on the fact that it employed the doctors or other persons who are said to have harassed or intimidated her. Those allegations appear to be, at least in part, the subject-matter of the NSD 1535 of 2018 proceeding. Indeed, most of the evidence upon which Dr Chandrasekaran sought to rely in support of her allegations against the doctors is contained in affidavits apparently sworn or filed for the purposes of those other proceedings. Those allegations appear to be the subject-matter of proceedings in the Supreme Court of New South Wales. It is, in all the circumstances, somewhat unclear why Dr Chandrasekaran has caused these separate proceedings to be commenced against the State. If he claim is that the State is vicariously liable for the actions of various employed doctors, that claim should have been made in the other proceedings. 19 In circumstances where the allegations against the various doctors and others appear to be the subject of other proceedings, it would be somewhat inappropriate or undesirable for me to deal at length with those allegations and the evidence which Dr Chandrasekaran has adduced in relation to them. I do not propose to even attempt to summarise the content of the main affidavit, or affidavits A, B and C which are annexed to it. As already noted, that material exceeds 200 pages in length. It suffices for present purposes to say that, even if there was sufficient evidence that Dr Chandrasekaran has been intimidated or harassed by particular doctors or others in the workplace or otherwise, I am not satisfied on the basis of the material before me that Dr Chandrasekaran has a prima facie case that the State is vicariously liable for those wrongdoings or liable on any other basis. Dr Chandrasekaran has not, for the purposes of this application, been able to identify which specific doctors employed by the State have breached any Commonwealth or State Acts, or which doctors have engaged in any tortious or other wrongful conduct in respect of which this Court has jurisdiction that could be sheeted home to the State. 20 In light of these findings concerning the non-existence of a prima facie case, it is unnecessary to deal at length with the other two elements which Dr Chandrasekaran must satisfy in order to obtain interlocutory injunctions. 21 As for irreparable injury, I accept that Dr Chandrasekaran genuinely believes that the alleged ongoing intimidation and harassment is causing her psychological injury and is ruining her career. I also accept that Dr Chandrasekaran genuinely believes that the pain and suffering which she says she continues to suffer as a result of the alleged harassment and intimidation is excruciating and unbearable. It would appear, however, that this has been going on, at least on Dr Chandrasekaran's account, for many years and Dr Chandrasekaran has not only been able to endure it, but has commenced various proceedings to seek redress in respect of it. In those circumstances, I am unable to see how, if this conduct is eventually found to have been engaged in by the Commonwealth or the State, or that the Commonwealth or the State are somehow liable or responsible for it, it would not necessarily be appropriately compensable by an award of damages. 22 More significantly, I am unable to see how the balance of convenience favours the grant of an interlocutory injunction or injunctions. I take into account, in that context, the fact that Dr Chandrasekaran alleges that this conduct has been ongoing for many years and that there is therefore no apparent or immediate urgency. I also take into account the fact that the case against the Commonwealth and the State is, on just about any view, very weak at this stage, and that Dr Chandrasekaran has been unable to identify with any precision the specific conduct by the specific individuals or entities which she seeks to enjoin. 23 That raises another fundamental problem with Dr Chandrasekaran's application for injunctive relief. Because her claims are so broad and general, it would be practically impossible to frame an injunction in sufficiently precise terms. The injunctions sought by Dr Chandrasekaran are not directed at any particular officer or agency of the Commonwealth or of the State. Rather, they purport to restrain the Commonwealth and the State generally from engaging in an extremely long list of wrongdoing expressed in the broadest possible terms. The inability to fashion an appropriately limited injunction is a significant hurdle and rather indicates the fundamental difficulties with Dr Chandrasekaran's case, at least at this stage. 24 It follows, in all the circumstances, that Dr Chandrasekaran's application for an interlocutory injunction or injunctions against the Commonwealth and the State must be dismissed.

The application for a search order 25 As indicated earlier, Dr Chandrasekaran's application was for a search order in respect of premises occupied or utilised by a private company, ACACC. That company is not a party to this proceeding and is not referred to in the main affidavit relied on by Dr Chandrasekaran. The connection that it has with the main proceeding, if any, is revealed only in the search order affidavit. It may be accepted, for present purposes, that the search order affidavit is capable of establishing, on an untested and prima facie basis, that two of Dr Chandrasekaran's recent emails have been opened by an IP address that can be linked to ACACC. The difficulty for Dr Chandrasekaran, however, is that that evidence is insufficient to support a search order. 26 The principles relating to search orders are fairly well-settled and may, for present purposes, be shortly summarised. The Court's power to make a search order, frequently called an Anton Piller order because of its origins in the judgment in Anton Piller KG v Manufacturing Processes Limited (1976) Ch 55 at 62, is derived from s 23 of the Federal Court of Australia Act 1976 (Cth): see Television Broadcasts Limited v Nguyen (1988) 21 FCR 34. Provision for the making of such orders is also contained in Div 7.5 of the Federal Court Rules 2011 (Cth). There is also a specific practice note in relation to the grant of search orders: Federal Court Practice Note GPN-SRCH. 27 In Long v Specifier Publications Pty Limited (1998) 44 NSWLR 545, Powell JA, with whom Meagher and Handley JA agreed, described a search order in the following terms (at [9]): Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte." (Emphasis in original) 28 In Nguyen, Lee J summarised the nature of a search order and the three conditions that must be satisfied before such an order is made as follows (at 38): The grant of an Anton Piller order is a peremptory and severe interference with the ordinary rights of a party when it is done without the support of any binding judgment and care must be taken to see that the order is only granted in appropriate cases and with due safeguards: "First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made." (Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 per Ormrod LJ (at 62).) 29 The need for exceptional circumstances to be demonstrated before a search order can be made has been emphasised in numerous subsequent cases: see, for example, Microsoft Corporation v Goodview Electronics Pty Limited [1999] FCA 754; 46 IPR 159 and Metso Minerals Limited v Kalra (No. 3) [2008] FCA 1201. In Goodview, Branson J said (at [26]): The Court must, in my view, be careful to avoid the extraordinary jurisdiction of the Court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. 30 The main difficulty for Dr Chandrasekaran is that, for the reasons already given, I am not at this stage satisfied that she has a prima facie case against the Commonwealth or the State. It inescapably follows that she does not have an "extremely strong prima facie case", as is required before a search order can be made. 31 It should also be added in this context that it is by no means certain that a search order can be made against a non-party to the relevant proceeding or proposed proceeding. As already noted, the nature of the order sought by Dr Chandrasekaran is against ACACC, which is not a party to the proceeding. I note, in that regard, that r 7.42 of the Federal Court Rules is expressed in terms which would suggest that a search order can only be made against a respondent. I am presently unaware of any case where a search order has been granted against a non-party. Given the urgency of this matter, however, I have not conducted any research in respect of that issue. 32 I am also not satisfied, based on the evidence, that ACACC has incriminating documents or things at its premises, or that it might destroy any such material before any application inter partes can be made. 33 As for the former, even if it is accepted that the evidence is capable of establishing that ACACC had accessed Dr Chandrasekaran's emails as she alleges, there is, nevertheless, no evidence that it did so for or on behalf of, or at the behest of, the Commonwealth or the State. The contents of Dr Chandrasekaran's affidavits establish no more than that she holds a suspicion in that regard and that her suspicion is based on little more than speculation. In those circumstances, even if there are documents at ACACC's premises which relate to the accessing of Dr Chandrasekaran's emails, there is no basis to conclude that the evidence would incriminate the Commonwealth or the State. 34 As for the latter, while Dr Chandrasekaran has asserted that ACACC could easily and simply destroy any such incriminating evidence, there is no evidence before me to suggest that there is a real possibility that it would do so even if such evidence existed. 35 Finally, I should note that there are some serious procedural deficiencies in Dr Chandrasekaran's application for a search order. For example, I am not satisfied that Dr Chandrasekaran has sufficiently or appropriately described the "things" or category of things which she asserts she should be permitted to search for and seize or secure. The draft order provided by Dr Chandrasekaran defines the "listed things" in the following extremely broad terms: Access to software and emails if deemed necessary then to search hard drives, and contents, account activity logs, documents, contracts, warrants, permissions, invoices and accounts, and search drives for photographs and recordings. 36 In all the circumstances, Dr Chandrasekaran's application for a search order must be dismissed.

Leave to issue a subpoena to ACACC 37 Finally, I do not propose at this stage to grant Dr Chandrasekaran leave to issue a subpoena to ACACC. In light of the findings I have made concerning the nature and prospects of Dr Chandrasekaran's case, as disclosed by the evidence filed to date, I am not satisfied that there is a legitimate forensic purpose in having any such subpoena issued. The draft subpoena, which Dr Chandrasekaran has provided, could be described as amounting to nothing more than a "fishing expedition". For the reasons already given, there is no reasonable or proper basis upon which to believe or suspect that ACACC has, or may have, documents relevant to any case that Dr Chandrasekaran may have against the Commonwealth or the State. Rather, Dr Chandrasekaran appears to be fishing to see if she has any such case. 38 I note that the main proceedings are listed for a Case Management Hearing on 11 July 2019. Appropriate procedural orders can be made at that time. 39 The orders that I will make are as follows:

1. The applicant's application for interlocutory injunctions referred to in her originating application dated 14 June 2019 is dismissed;
2. The applicant's interlocutory application dated 27 June 2019 is dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.