Chandrasekaran v Navaratnem

Supreme Court of NSW|2022-03-30|Before: Garling J

Judgment

The background to this matter is set out in an earlier judgment I delivered on 9 November 2021: Chandrasekaran v Navaratnem [2021] NSWSC 1446.
On that day, I made the following orders: 1. Vacate the hearing of the defendant's Notice of Motion filed 11 December 2019 fixed for that day. 2. Order that any further determination of the Motion take place on the papers and in Chambers. 3. Direct that, if the plaintiff wishes to file any further submissions in opposition to the relief sought in the defendant's Notice of Motion, then any such submissions should be filed and served by no later than 4pm, 26 November 2021. 4. Order the defendant to file and serve any submissions in reply to the plaintiff's submissions by 4pm, 3 December 2021. 5. Upon receipt of the last set of submissions, judgment in this matter will be reserved, and that judgment will be determined on the basis of all the papers which have been filed to date. 6. Reserve all questions of costs of and occasioned by the vacation of today's hearing date. 7. Grant both parties liberty to apply.
The plaintiff has not filed any further submissions in accordance with Order 3 of those orders. Accordingly, the defendant has not filed any submissions in reply in accordance with Order 4.
By his Notice of Motion filed 11 December 2019, the defendant seeks the following orders: "1. An order pursuant to r 11.6 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") or s 67 of the Civil Procedure Act 2005 (NSW) that the proceedings be permanently stayed on the basis of forum non conveniens. In the event that the Court does not grant the order sought in prayer 1[:] 2. An order pursuant to r 13.4 of the UCPR, that the proceedings be dismissed on the basis that they are frivolous and vexatious. 3. Alternatively, an order pursuant to r 14.28 of the UCPR that the amended statement of claim be struck out. 4. Plaintiff to pay the costs of the notice of motion. 5. Plaintiff to pay the costs of the proceedings."

Relevant Law

Rule 11.6 of the UCPR provides: "(1) On application by a person on whom an originating process has been served outside of Australia, the court may dismiss or stay the proceeding or set aside service of the originating process. (2) Without limiting subrule (1), the court may make an order under this rule if satisfied - (a) that service of the originating process is not authorised by these rules, or (b) that the court is an inappropriate forum for the trial of the proceeding, or (c) that the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim."
This Court may be an "inappropriate forum" for the proceedings if the substance of the action involves foreign conduct and is subject to foreign law.
The principles that inform the common law test of whether a forum is "clearly inappropriate" equally inform the statutory test under r 11.6 of the UCPR: Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 ("Zhang") at [25]; Studorp Ltd v Robinson [2012] NSWCA 382 at [5].
Those principles were summarised by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 at 587: "In [Voth v Manildra Flour Mills (1990) 171 CLR 538; [1990] HCA 55 ("Voth")], this Court adopted for Australia the test propounded by Deane J in [Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 ("Oceanic Sun")], namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or, vexatious, in the sense of 'productive of serious and unjustified trouble and harassment'[: Oceanic Sun at 247]. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, 'the discussion by Lord Goff in [Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 ("Spiliada") at 477-478 and 482-484] of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance'[: Voth at 565-565]. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being 'where the case may be tried "suitably for the interests of all the parties and for the ends of justice"'[: Spiliada at 482]."

The Plaintiff's Claim

The plaintiff has filed four affidavits in these proceedings dated 1 November 2019, 28 January 2020, 26 July 2021 and 8 November 2021. Much of the contents of these is not relevant to the determination of this Notice of Motion. However, the following may be observed about the plaintiff's claim, in light of the Amended Statement of Claim and the four affidavits.
The plaintiff alleges that she met the defendant in the United Kingdom on two occasions during November 2017 whilst in London. The plaintiff alleges that the defendant later disclosed information provided by her to him in those meetings in breach of an obligation of confidence. The plaintiff further alleges that the defendant: induced a breach of contract; unlawfully interfered in the plaintiff's trade; and committed a conspiracy with others.
The plaintiff does not allege that the defendant breached that confidence, or committed any of those torts, while physically in New South Wales.
In her affidavit dated 28 January 2020, the plaintiff says: "63 The unlawful interception and access to my personal information occurs from Australia and in this case, Mr Navaratnem was able to effect the breach of confidence by communicating with persons in Australia to the extent that it was and continues to be consistent with acts of malice that have led to personal violation, gaslighting, loss of livelihood and suspension of registration where the extent of the injury and harm to me was and continues to be in Australia, co-ordinated by Australian citizens for perverse and private gain. 64 The tortious liabilities I claim in this matter occurred partly if not wholly in Australia, and the damage sustained was and continues to be wholly in Australia. …"
The "Australian citizens" referred to in the above passage do not include the defendant.

The Defendant's Evidence on the Motion

The defendant relies on an affidavit affirmed by his solicitor, Ms Breannon Bailey, filed on 11 December 2019. Ms Bailey's evidence does not reveal any connection between the plaintiff's claim, the defendant and this jurisdiction. She deposes the following: "37 I am instructed by the Defendant: a. He is a resident of the United Kingdom; b. He runs a full-time clinical practice which consists of many patients who are psychologically damaged and emotionally disturbed. I am instructed that these patients receive regular treatment from the Defendant and that any unplanned absence [on] his part is likely to impact the standard of care that they receive; c. He is financially dependent on his clinical practice and is the sole breadwinner to his wife and four daughters. If he is required to attend Sydney to give evidence in respect of this claim, he is likely to suffer a significant loss of income; d. Furthermore, travel to Sydney would cause significant inconvenience and disruption to his family; e. He has various teaching commitments due to various training courses at institutions that he is involved in. If required to attend Sydney, this absence would have an adverse impact on students and trainees; and f. He may wish to adduce expert evidence of peers practicing in the United Kingdom, which would be costly and cause further financial strain.
The defendant has also filed affidavits affirmed by Ms Bailey on 14 November 2019, 17 December 2019 and 29 September 2021. Those affidavits contain evidence that is substantially relevant to the alternative orders sought by the defendant. For reasons which will become clear, it is not necessary to set out that evidence here.
Ms Bailey's evidence was not challenged. I accept it.

The Plaintiff's Response to the Motion

The plaintiff has not filed any submissions in response to the defendant's motion and did not appear at the hearing of the motion.
The plaintiff contests the defendant's evidence in her affidavits filed 28 January 2020 and 26 July 2021. Most of the plaintiff's response to the defendant's evidence is irrelevant to the determination of the issues. However, the plaintiff deposed in her affidavit filed on 28 January 2020 the following: "70 At [37][b, d, e] on page 7 [of Ms Bailey's affidavit filed on 11 December 2019], proceedings in Australia will not interfere with his work with psychiatric patients, teaching and family life as any hearing where he is required will be listed for trial with ample notice and is unlikely to exceed 2-3 days. 71 At [37][c] on page 7, Mr Navaratnem purports he is financially dependent and this claim would cause him financial strain. … Mr Navaratnem alleges that he is a sole breadwinner. I note there is also listed a Mrs Frances Navaratnem on the British Psychoanalytic Council website, such that he is not the sole breadwinner at all. She also goes by the name of Frances Edwards and co-habits with Mr Navaratnem. … 72 … 73 … Mr Navaratnem has also lied about the number of children he supports."
The plaintiff repeated the same evidence in her affidavit filed 26 July 2021.

The Defendant's Submissions

The defendant submits there are the following connecting factors between this case and the United Kingdom: 1. First, the central factual allegation in these proceedings relates to two meetings between the plaintiff and the defendant, both of which occurred in London. The claims the plaintiff makes are best understood as claims in tort and have substantial connection with English law. Any professional obligation owed by the defendant to the plaintiff arose as a result of the meeting on 29 November 2017 in London. Any breach of any professional obligation was committed in London. There is no suggestion that any act was committed by the defendant outside of London. By reason of Australian choice of law rules, the law applied by Australian courts arising from a foreign tort is the law of the place where the wrong was committed: Zhang at [75]. 2. Secondly, the defendant runs a full-time clinical practice which consists of many patients who are psychologically damaged and emotionally disturbed and has various teaching commitments. Requiring the defendant to attend Sydney would have an adverse impact on his patients, students and trainees. 3. Thirdly, by reason of the plaintiff's case against the defendant, the defendant may be required to call expert evidence regarding the professional standards of psychoanalysts in the United Kingdom, which would be especially costly if the case was heard in New South Wales. 4. Fourthly, although the plaintiff resides in Australia, the prejudice to her of having to prosecute proceedings in England is likely to be of less significant than the considerations outlined above.
By way of comparison, the defendant submits there are only the following connecting factors between this case and New South Wales: 1. The plaintiff is ordinarily a resident in New South Wales. 2. The plaintiff alleges that damage has been suffered in Australia.

Discernment

The plaintiff has a prima facie right to insist upon the exercise of the jurisdiction of this court, and the jurisdiction to grant a stay or dismiss the action must be exercised "with great care" or "extreme caution": Voth at 554.
However, it is clear to me that the continuation of these proceedings would be oppressive and vexatious and that they should be permanently stayed pursuant to r 11.6 of the UCPR.
Beyond the two meetings between the plaintiff and the defendant in November 2017, which on the plaintiff's account were held in professional settings, there is no suggestion that the plaintiff knows the defendant or his personal or professional circumstances. Therefore, insofar as there is any difference between the evidence of Ms Bailey and the plaintiff, I prefer Ms Bailey's evidence over that of the plaintiff. Importantly, I accept that the continuation of these proceedings in New South Wales will significantly disrupt the defendant's professional and personal life and cause him considerable financial strain.
I also accept the defendant's submissions regarding the connecting factors between this case and, on the one hand, the United Kingdom and, on the other, New South Wales. I emphasise that the claims relate entirely to events that occurred in London. Furthermore, despite the plaintiff's claim that "the damage sustained was and continues to be wholly in Australia", it is not clear, even taking the plaintiff's claims at their highest, what that damage comprises and how the defendant is said to have caused any such damage in Australia.
The plaintiff's claims are vague and do not plead sufficient material facts relevant to the invoked causes of action. It appears to me that it would be impossible for the defendant to reasonably respond to the claims effectively. Furthermore, the claims have impacted the defendant's professional standing. As set out in Ms Bailey's affidavit of 11 December 2019, the plaintiff has forwarded details regarding her claims against the defendant to the British Psychoanalytic Council and British Psychoanalytic Society. Those organisations have in response issued a letter of good standing in support of the defendant. The claims are therefore "seriously and unfairly burdensome, prejudicial [and] damaging" and "productive of serious and unjustified trouble and harassment": Oceanic Sun at 247.
For these reasons it is appropriate to order a permanent stay of these proceedings.

Orders

I make the following order: 1. Order, pursuant to r 11.6 of the Uniform Civil Procedure Rules 2005, that the proceedings be permanently stayed. 2. Order that the plaintiff pay the defendant's costs of the proceedings including all reserved costs.

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: 30 March 2022

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