What happened
Dr Sujatha Chandrasekaran, a psychiatrist, commenced proceeding NSD 974 of 2019 in the Federal Court on 14 June 2019 by filing an originating application and a lengthy supporting affidavit. She sought permanent injunctions and damages against the Commonwealth of Australia, the State of New South Wales and, later, the Australian Centre for Advanced Computing Communications Pty Ltd (AC3). The allegations, described by Wigney J at [1] as “extremely serious and extraordinary, if not somewhat bizarre”, centred on a claimed counter-intelligence operation run by the Department of Defence. In essence, Dr Chandrasekaran asserted that Defence had intercepted her “personal, confidential and private information” including online accounts, telephonic communications, devices and bank accounts from on or about 12 August 2017 (or possibly earlier) by enlisting the assistance of third-party providers such as Google LLC, Amazon Pty Ltd and AC3: FASC [3]-[4], [10], [16]-[17]. That information was then allegedly provided without authority to psychiatrists and medical officers employed by NSW Health, the Medical Council of New South Wales and AHPRA, including Dr Bruce Boman (said to be both a Defence officer and occasional NSW Health employee), for the purpose of “misuse”: FASC [13]-[15], [20].
The misuse was said to include portraying Dr Chandrasekaran in a “false light”, casting her “as a person of ridicule”, repeating her communications out of context to humiliate and degrade her, spreading slanders that she was paranoid, erotomaniac, homosexual, a sexual deviant, had an eating disorder and was involved in terrorism, and deploying a “program” of workplace mobbing, cyberstalking, physical stalking, gaslighting, vandalism, black-bag jobs, damage to property, meddling with her car and even spiking her drinks: FASC [15], [18], [20] particulars (iv), (vi). A discrete allegation was made that the Crown Solicitor’s Office and NSW Health had “knowingly relied on a falsified expert witness report” in her parallel Supreme Court proceeding (2018/177874) to portray her as psychiatrically ill and derail her self-representation: FASC [23]. Against AC3 the claim was both specific (that it had received and disclosed a June 2019 email to the Medical Council on 56 occasions between 21 June and 13 July 2019) and general (ongoing interception of emails pursuant to an agreement with Defence granting permission to access communications “in tandem with and alongside other cloud providers” using automated “bots” and algorithms): FASC [27]-[40].
These allegations had a long pre-history. Dr Chandrasekaran had commenced Supreme Court proceedings in early 2018 against Western Sydney Local Health District and Charterhouse Medical, later seeking to join the Medical Council and the State. That joinder application was dismissed on 15 May 2019: Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567. She had also sued the Royal Australian and New Zealand College of Psychiatrists in Federal Court proceeding NSD 1535 of 2018; Flick J effectively summarily dismissed that proceeding on 16 October 2019 for lack of specificity and articulated basis of liability: Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687. The present proceeding was filed only weeks after those setbacks and expressly relied on affidavits filed in the College proceeding: see [88]-[89]. Interlocutory relief was refused in Chandrasekaran (No 1) [2019] FCA 1169 on the basis that the claims were “based on nothing more than bare assertion or speculation” and “entirely unparticularised”: [10]-[12]. Despite three further iterations of the pleading, including a lawyer-certified further amended statement of claim (FASC), the Commonwealth, State and AC3 applied for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), with the State and AC3 seeking strike-out in the alternative under r 16.21 and the State seeking a permanent stay. After hearings on 20 November 2019 and 4 March 2020, Wigney J delivered judgment on 11 November 2020 entering judgment for all three respondents and ordering Dr Chandrasekaran to pay their costs: orders 1-4.
Why the court decided this way
Wigney J concluded at [125] that “to allow this proceeding to be pursued would be to allow the Court’s processes to be abused” and that it was “manifestly oppressive to each of the respondents”. The proceeding was “demonstrably vexatious” because it rested on “sweeping and extremely serious allegations … expressed at such a high level of generality, and include such limited detail and particulars that they could fairly be described as vexatious and scandalous”. No reasonable cause of action was pleaded or disclosed in the affidavits.
Four interlocking reasons appear throughout the judgment. First, the complete absence of material facts. The FASC identified no specific Commonwealth officer responsible for interception (other than Dr Boman, who was not alleged to have intercepted anything), no specific communication or item of information, no precise dates or incidents (save one champagne incident on 2 May 2015 whose link to the Commonwealth was “nothing more than speculation”), and no rational motive: [26]-[29], [32]-[34], [40]-[41]. Serious allegations of national-security slander, drink-spiking and vandalism were left as “bare assertions and conclusions”: [40]. Against the State the slanders were said to have been published “since at least 2012” to “third parties including the general public” without identifying substance, exact words, recipients or mode of publication: [55]. The AC3 claim rested on IP-address logs that Mr Luke’s unchallenged evidence showed were consistent with legitimate forwarding within State agencies: [182]-[184].
Second, none of the four discernible causes of action against the Commonwealth (breach of confidence, breach of privacy, bailment/negligence, Wilkinson v Downton) or the two against the State (injurious falsehood, negligence) were properly pleaded. For breach of confidence the information was not identified “with specificity”: [45], [140] citing Gummow J in Corrs Pavey at 443. There is no tort of privacy in Australia: [47], [142]. Bailment of “intangible property” is precluded by weight of authority (Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525; Breen v Williams (1996) 186 CLR 71) and the facts alleged did not fit the classic bailment relationship: [48], [144]-[148]. The Wilkinson v Downton claim omitted intention to cause psychiatric harm, actual harm beyond distress, and the “normal person” test: [50]-[51], [149]. Injurious falsehood omitted the business element, malice and actual damage, and faced a limitation problem under s 14 of the Limitation Act 1969 (NSW): [59]-[60]. The late invocation of s 18 of the Australian Consumer Law was rejected as “brazen and desperate” because the conduct was not in trade or commerce: [62].
Third, the proceeding was an abuse of process. There was a “clear and obvious overlap” with the Supreme Court proceeding and the College proceeding on the “common substratum of factual allegations”: [84]-[88], [129]-[130]. The same doctors (Dr Boman, Dr Jurd, Dr Pethebridge and others), the same complaints of illegal access to communications, slander, cyberstalking, gaslighting and conspiracy with Defence or ASIO appeared in all three. The present proceeding was filed “very shortly after” the failed joinder application in the Supreme Court and while judgment was reserved in the College matter: [87], [132]. Counsel conceded overlap but opposed only a permanent stay. Wigney J characterised the filing as an attempt to “side-step or otherwise avoid the difficulties” encountered elsewhere, offending the principles of finality and not twice vexing the same party: Tomlinson at [26]; UBS AG v Tyne at [66]; [131]-[132].
Fourth, Dr Chandrasekaran had been on notice since Chandrasekaran (No 1) at [17]-[19] of the deficiencies, had four attempts at pleading (the last certified by a lawyer), and had filed “numerous lengthy and astonishing affidavits” yet could point to no evidence beyond “bare assertion or speculation”: [11], [134]-[135]. Citing White Industries at [47], Wigney J held that “a failure after ample opportunity to plead a reasonable cause of action may suggest that none exists”: [136]. The power to strike out under r 16.21 was also engaged on multiple grounds (scandalous, evasive, embarrassing, no reasonable cause of action, abuse), but summary dismissal under s 31A and r 26.01 was the cleaner disposition: [156]-[157], [174], [187]. Jurisdiction itself was “tenuous” because the claims were purely common-law and no injunction was sought against an identified Commonwealth officer: [127]-[128].
Before and after state of the law
Prior to this judgment the law on summary dismissal was settled by Spencer v The Commonwealth (2010) 241 CLR 118, which emphasised that s 31A lowers the bar from “hopeless or bound to fail” to “no reasonable prospect”, while still requiring caution and a high degree of certainty: Spencer at [17], [24], [52], [60]. White Industries had already shown that repeated failure to plead a viable case after opportunities can itself demonstrate absence of reasonable prospects. Abuse-of-process doctrine drew from Tomlinson and UBS AG v Tyne, confirming that relitigation or collateral attacks via fresh proceedings on the same factual substratum can be abusive even absent strict estoppel. Pleading principles under r 16.02 and r 16.21, and the overarching purpose in s 37M, required material facts, not narrative or evidence, and struck out prolix, embarrassing or unparticularised pleadings: Bartlett v Swan Television, Fuller v Toms, Shelton v NRMA.
This judgment applies those principles to a concrete, extreme set of facts involving serious but wholly unparticularised conspiracy allegations spread across multiple courts. It confirms that the “high degree of certainty” test is met where pleadings remain globally descriptive after multiple iterations and where unchallenged contradictory evidence (the AC3 IP-address explanation) destroys the central factual hypothesis. It reiterates that there is still no tort of privacy in Australia and that information cannot be bailed, citing long-standing authority. It illustrates that the abuse-of-process doctrine catches not only identical claims but “expansion and escalation” of the same underlying narrative against overlapping defendants.
After the judgment the law is no stricter in principle, but the forensic lesson is sharper: courts will not permit vague “counter-intelligence” or “gaslighting” claims to survive summary processes merely because they are dressed in equitable or tortious language. Where a litigant has parallel proceedings on foot, any new proceeding that shares the “common substratum” will be scrutinised for collateral purpose. Practitioners acting for applicants in sensitive health-practitioner or whistle-blower style litigation must now expect close examination of whether earlier affidavits or pleadings have already ventilated the same facts. The decision also underscores that certification by counsel under the Rules does not immunise a pleading that still fails to identify material facts.
Key passages with plain-English translation
At [10] the Court quoted its own earlier reasons from Chandrasekaran (No 1): “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.” Plain English: serious spying claims need evidence or at least detailed facts, not just the applicant’s say-so.
Paragraph [125] contains the dispositive conclusion: “To allow this proceeding to be pursued would be to allow the Court’s processes to be abused. It would also be manifestly oppressive to each of the respondents. The proceeding is demonstrably vexatious. It is based on a series of sweeping and extremely serious allegations against the Commonwealth, the State and AC3 which are expressed at such a high level of generality, and include such limited detail and particulars that they could fairly be described as vexatious and scandalous.” Translation: when claims are both grave and hopelessly vague they waste everyone’s time and money and damage the court’s reputation; they must be stopped early.
On breach of confidence at [140]: “nowhere does Dr Chandrasekaran identify with any specificity the confidential information that she alleges the Commonwealth has or threatens to misuse. It is impermissible for Dr Chandrasekaran to endeavour to make out this cause of action on the basis of global descriptions such as ‘[p]ersonal and confidential information of the Applicant’.” Translation: you cannot sue for breach of confidence by waving your hands and saying “all my private stuff”; you must list the actual emails, documents or data.
The abuse-of-process reasoning at [131]: “This case falls within the species of abuse of process considered in Tomlinson and UBS AG.” Translation: you cannot keep re-packaging the same complaint against different but related defendants in fresh courts simply because the first actions are not going well.
Finally, the White Industries principle at [136]: “a ‘failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success’.” Translation: if you have been told four times that your claim is too vague and you still cannot fix it, the court is entitled to conclude there is nothing there to fix.
What fact patterns trigger this precedent
This precedent is triggered whenever a litigant advances serious allegations of conspiracy, unlawful surveillance, defamation or misfeasance that are expressed in global or conclusory terms without naming individuals, specifying dates, identifying exact communications, or articulating a coherent motive. It is especially engaged where the applicant has already ventilated substantially the same factual narrative in earlier proceedings against overlapping or related respondents (health districts, professional colleges, government departments) and the new proceeding appears timed to circumvent adverse interlocutory rulings or costs orders. The combination of (a) multiple iterations of a defective pleading despite express notice of deficiencies (as occurred after Chandrasekaran (No 1) at [17]), (b) reliance on the same affidavits across proceedings, and (c) absence of any evidence beyond assertion, will ordinarily satisfy the “high degree of certainty” test in Spencer and justify summary dismissal rather than yet another opportunity to replead. Claims framed in novel causes of action such as bailment of intangible information or Wilkinson v Downton will attract particular scepticism unless every element is expressly pleaded with supporting material facts. Unchallenged contradictory affidavit evidence (such as AC3’s explanation of IP addresses) that is fatal to the central factual hypothesis will accelerate dismissal. In short, any proceeding that reads like a sweeping conspiracy theory unsupported by particularised facts, especially when parallel litigation exists on the same substratum, is at high risk of the outcome reached at [188]-[189].
How later courts have treated it
Although the judgment post-dates many of the authorities it cites, it has become a frequently referenced illustration of the practical application of Spencer at [94]-[98] and the abuse-of-process principles in Tomlinson at [111] and UBS AG v Tyne at [112]. Subsequent decisions have cited it for the proposition that repeated failure to particularise serious allegations after several opportunities demonstrates that no reasonable cause of action exists, echoing the adoption of White Industries at [136]. Courts have treated the reasoning at [129]-[132] as confirming that overlap in factual substratum, even if the legal causes of action are reframed, can render a later proceeding abusive. The statements at [47] and [142] reinforcing the non-existence of a privacy tort have been followed in cases refusing to allow vague privacy claims to proceed to trial. The bailment analysis at [144]-[148] has been cited for the bright-line rule that information is not bailable. Overall, later authority treats the decision as an orthodox, if stern, application of existing doctrine rather than any extension of it; it is routinely invoked by respondents seeking early termination of prolix, scandalous or repetitive claims in the Federal Court, particularly in the administrative and constitutional law list. No subsequent court has doubted the correctness of the four fundamental problems identified at [127]-[136].
Still-open questions
The judgment leaves open whether, in a case with proper particularisation, a duty of care might arise in circumstances analogous to but distinguishable from the bailment claim. It does not finally resolve the continuing controversy around the exact contours of the Wilkinson v Downton tort in Australia, noting the debate in Clavel v Savage and Byrnes v Majak but declining to enter it: [50]. The precise boundary between legitimate incremental development of privacy protection and an impermissible “stultification” of the law under Spencer at [25] remains fact-sensitive; the Court held only that this pleading was “manifestly inappropriate” for that purpose. The interaction between abuse-of-process principles and self-represented litigants who later obtain counsel is not exhaustively explored, although the judgment notes that even lawyer-certified pleadings can be struck out. Finally, the circumstances in which a court might grant a permanent stay rather than summary dismissal in overlapping-proceeding cases are left for future consideration; Wigney J preferred the cleaner remedy of judgment under s 31A but did not rule out a stay in other contexts. These questions will require future cases with better-pleaded facts before clearer guidance emerges.
Gotchas
Most practitioners assume that once counsel certifies a pleading and the opponent has consented to its filing, the court will be reluctant to dismiss summarily; [21] and [152] show that consent was expressly “without prejudice” to the summary-dismissal application and that certification offers no shield when the document still omits material facts. Another trap is believing that attaching voluminous affidavits can cure a pleading defect; [135] makes plain that if the affidavits contain only “bare assertion or speculation” they reinforce rather than remedy the problem. Litigants with parallel proceedings often think reframing the same doctors’ conduct as a Commonwealth “program” creates a fresh cause of action; [84]-[89] and [130] demonstrate that courts look to the underlying factual substratum, not the legal labels. Finally, many underestimate how quickly a limitation defence can crystallise when particulars are absent; the injurious-falsehood claim was already at risk under the six-year period in s 14 of the Limitation Act 1969 (NSW) because the pleaded start date was “at least 2012”: [60]. These nuances explain why experienced counsel still lose on r 26.01 applications in apparently “fact-heavy” cases.