Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists

Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists - [2019] FCA 1687 - FCA 2019 case summary — Zoe

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FLICK J: 1 This is an unfortunate proceeding. 2 It commenced on 21 August 2018 with the filing in this Court of an Originating Application. The Applicant is Ms Sujatha Chandrasekaran. The Respondents were then named as the "Royal Australian and New Zealand College of Psychiatrists and others named in the schedule". Dr Ashwini Padhi was named as the Second Respondent in the schedule. Leave was granted for an Amended Originating Application to be filed, with that amended application as filed deleting the reference to the Second Respondent, leaving the Royal Australian and New Zealand College of Psychiatrists ("the College") as the sole Respondent to the proceeding. 3 Both the Originating Application and Amended Originating Application stated that it had been filed by Ms Chandrasekaran on her own behalf. The proceeding has come before the Court for case management hearings on no less than five occasions and for interlocutory hearing on three occasions. On many of those occasions, Ms Chandrasekaran appeared on her own behalf; but on several occasions she appeared represented by Counsel. 4 One fundamental difficulty that has plagued the proceeding from the outset is the absence of any satisfactory specificity in the cause or causes of action sought to be pursued by Ms Chandrasekaran and, even more fundamentally, the absence of any clearly articulated basis upon which Ms Chandrasekaran sought to attribute liability to the College. Ms Chandrasekaran filed an affidavit dated 20 August 2018 in support of her Originating Application. Further affidavits have since been filed. 5 The difficulty in identifying the cause or causes of action sought to be pursued was, presumably, the impetus for the College filing in October 2018 an Interlocutory Application seeking summary judgment or an order setting aside the Originating Application. An Amended Interlocutory Application was filed by the College later in October 2018, in response to the Applicant's Amended Originating Application. An affidavit filed by the legal counsel for the College in December 2018 deposed to the fact that she had "reviewed the Applicant's affidavit affirmed on 30 November 2018" in which Ms Chandrasekaran made "various complaints regarding the conduct of certain doctors and directors of training at various clinics and hospitals". The deponent then concluded by stating that "[n]one of the doctors or directors of training referred to the in Applicant's affidavit are employed by the College". 6 The steps which have been taken since about November 2018 have all been taken with a view to providing Ms Chandrasekaran with an opportunity to adduce at least some evidence by which she can seek to attribute liability to the College for the conduct of which she complains. Ms Chandrasekaran has sought to do so by both her own affidavit evidence and by seeking leave to issue subpoenas. 7 By May 2019, the view was formed that there was such uncertainty surrounding the basis upon which Ms Chandrasekaran sought to expose the College to liability that an Order was made requiring her to file an Outline of Submissions which identified (inter alia) the material facts upon which she sought to rely and the evidence to be relied upon. 8 On 29 May 2019, there were listed for hearing the following Interlocutory Applications filed by: the College, dated 22 October 2018 (this being the Amended Interlocutory Application); Dr Ildiko Gintli, which is undated but was lodged 23 April 2019; the College, dated 8 May 2019; Ms Chandrasekaran, dated 9 May 2019; Dr Rosalyn Lai, dated 27 May 2019; and Mr Daniel Harvey, dated 28 May 2019. On that occasion Ms Chandrasekaran and the College were represented by Counsel. Dr Gintli, Dr Lai and Mr Harvey (who each were seeking to have subpoenas which had been issued set aside) were also represented. 9 In summary form, it is concluded that: the manner and form in which the issues sought to be resolved by Ms Chandrasekaran are presently formulated are such that it would be an abuse of process to allow the matter to proceed to hearing - indeed, the lack of precision as to the basis upon which Ms Chandrasekaran presently wishes to present her case enlivens the discretion both to enter summary judgment in favour of the Respondent or to have the proceeding dismissed. Neither the Respondent (nor the Court) should be required to identify out of an ill-structured morass of both relevant and irrelevant factual allegations those "facts" which may be "material" to a possible cause of action and thereafter identify out of Ms Chandrasekaran's affidavits that evidence which may potentially go to prove those "material facts" and thereafter identify such other evidence as may qualify or contradict her "evidence". Any such proceeding would be more in the nature of a general or "roving inquiry" into a series of generally expressed allegations made against a myriad of persons other than persons for whose conduct the Respondent may potentially assume liability. It is nevertheless further concluded that: in the exercise of the Court's discretion, Ms Chandrasekaran should have the opportunity to seek leave to file a Statement of Claim, certified by Counsel¸ which discloses a proper basis for any relief which she may seek. An Interlocutory Application seeking leave to file a Statement of Claim will not be heard, however, until the Respondent's costs in this proceeding have been paid by the Applicant. In the event that no application for leave is sought or in the event that leave is refused, summary judgment should be entered in favour of the College pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court of Australia Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules"). It is also concluded that: brief consideration should be given to the Interlocutory Applications seeking to set aside the relevant subpoenas and Notices to Produce, with the conclusion being that the relevant subpoenas and Notices to Produce should be set aside; and Ms Chandrasekaran's Interlocutory Application filed on 9 May 2019 has been superseded by any Statement of Claim that may be sought to be filed. Each of these issues should be separately considered.

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Summary judgment 12 The Amended Interlocutory Application filed by the College in October 2018 seeks summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act or r 26.01(a) to (d) of the Federal Court Rules. In the alternative, an order is sought pursuant to r 13.01(1)(a) of those Rules setting aside the Amended Originating Application. 13 Although these provisions and the guiding principles have oft been addressed, it is nevertheless prudent to again briefly set them out and the principles that guide the exercise of the discretionary powers conferred. 14 Section 31A provides as follows: (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 15 In summarising the principles to be applied, Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) [2006] FCA 1416 ("Commonwealth Bank of Australia") has observed: [30] … The authorities relating to the proper construction and effect of s 31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [31]-[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows: • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal. • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing. • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. • Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened. 16 Reference may also be made to the following observations of French CJ and Gummow JJ in Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 at 130-132 ("Spencer"): [22] In the Federal Court … the criterion of a "reasonable prospect" of success has been understood in analogous statutory settings to mean a "real" rather than "fanciful" prospect. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories. [23] Accepting that there are a number of ways in which s 31A may be applied to empower the Federal Court to dismiss a proceeding, it is to be distinguished, in its application to deficient pleadings, from rules (such as O 11 r 16 of the Federal Court Rules) which provide for the striking out of pleadings. … [24] The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. … [25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. (footnotes omitted) 17 That case, it was observed, involved "important questions of public and constitutional law and potentially complex questions of fact": [2010] HCA 28 at [27], (2010) 241 CLR at 133. Hayne, Crennan, Kiefel and Bell JJ, in describing s 31A as a "radical departure" from earlier forms of provisions permitting the entry of summary judgment, there expressed their approach to s 31A as follows (at 139 and 141): [50] …Two aspects of these provisions are to be noted. [51] First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings. [52] Secondly, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail. [53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissions for Railways (NSW). … [59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. [60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. (footnotes omitted) The effect of s 31A, as stated by the Full Court, is to "soften the test for a successful application for summary judgment": Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 408 per Spender, Graham and Gilmour JJ. 18 Further to s 31A, r 26.01 of the Federal Court Rules provides as follows: Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or (b) the proceeding is frivolous or vexatious; or (c) no reasonable cause of action is disclosed; or (d) the proceeding is an abuse of the process of the Court; or (e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. (2) The application must be accompanied by an affidavit stating: (a) the grounds of the application; and (b) the facts and circumstances relied on to support those grounds. (3) The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application. (4) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order. (5) If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant's claim, a respondent who has a cross-claim against the applicant or some other party may: (a) continue to prosecute the cross-claim against the applicant or other party; and (b) apply to the Court for an order staying execution on or enforcement of the judgment until the respondent's cross-claim is determined. 19 The concepts of both "vexation" and "abuse of process" overlap and are "broad doctrines": Manolakis v Carter [2009] FCA 483. Besanko J there observed, in relevant part, as follows: A vexatious proceeding or a proceeding which is an abuse of process [24] There have been many cases in which courts have considered the circumstances in which an action or proceeding will be held to be vexatious or an abuse of process. No doubt the doctrines are broad doctrines which often overlap. …. [25] As I have said, the concept of an abuse of process is a broad one. The circumstances in which the court will conclude that a proceeding or a step in a proceeding is an abuse of process are extremely varied and the concept is not limited to fixed categories. To use a proceeding for an ulterior or improper purpose is one form of an abuse of process; to use a proceeding to cause vexation or oppression is another: Rogers v The Queen (1994) 181 CLR 251 ("Rogers") at 255 per Mason CJ. In Rogers, McHugh J said (at 286): "Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and the onus is a "heavy one": Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ. But what "amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues.": Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [9], (2006) 226 CLR 256 at 265 per Gleeson CJ, Gummow, Hayne and Crennan JJ. 20 These are the general principles to be applied in the resolution of the College's application for summary judgment.

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An articulation or identification of the causes of action 21 The starting point for the resolution of the Amended Interlocutory Application is the fact that in the present proceeding no order has been made for the filing of a Statement of Claim. 22 At the outset of the proceeding, the causes of action sought to be relied upon by Ms Chandrasekaran were to be found (if at all), in either: the Amended Originating Application; and/or the affidavit evidence which she had filed. 23 By May 2019, the view had been formed that it was not possible to distil from those sources the causes of action being relied upon and, accordingly, at the interlocutory hearing on 16 May 2019 Orders were made including the following Order: The Applicant is to file and serve a written Outline of Submissions, no longer than 10 pages in length, by midday on 24 May 2019. The Outline of Submissions is to: a. identify, with precision, the causes of action sought to be advanced; b. set out the facts which are relevant to those causes of action; c. provide four to five examples of events giving rise to the causes of action; d. set out the reasons why the Respondent is said to assume liability in this proceeding; e. provide an explanation as to the forensic purpose sought to be achieved in issuing subpoenas; f. identify any affidavits to be relied upon by the Applicant at the interlocutory hearings on 29 May 2019. It was pursuant to that Order that Ms Chandrasekaran filed a document headed "Written Submissions" (the "May Submissions"). It should be noted that Counsel for the Applicant also filed written submissions on behalf of Ms Chandrasekaran. 24 In very summary form, that which is missing from any of these sources - at its most fundamental level - is the identification of: any sustainable basis upon which the Respondent may be said to assume liability for any of the conduct identified by Ms Chandrasekaran. Also missing from any of these sources is the identification of: any clearly articulated basis upon which the causes of action are sought to be advanced. The absence of such basic information, it is further respectfully concluded, is not remedied by: recourse to the evidence, indeed the evidence itself often being the source of further uncertainty, if not confusion. 25 Such deficiencies enliven the discretion conferred by s 31A(2) of the Federal Court of Australia Act and r 26.01 of the Federal Court Rules. The absence of such essential elements of a properly formulated claim for relief, it is concluded, warrants a conclusion that (with the claims for relief as presently formulated or identified and advanced for resolution) the Applicant has "no reasonable prospect of successfully prosecuting the proceeding…" for the purposes of s 31A(2) and separately warrants a conclusion that the claims are "vexatious" and an "abuse of the process of the Court" for the purposes of r 26.01(1). 26 It is necessary to expand upon each of these conclusions with some degree of care.

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The Amended Originating Application & the May Submissions 27 It is sufficient for present purposes to set forth (for example) the following claims for relief as set out in the Amended Originating Application (without alteration): … 2. Prohibit the defendants from engaging in any act that constitutes deceptive and misleading conduct, injurious and/or malicious falsehood, breach in confidence and breach to privacy, and the intentional infliction of emotional distress & harassment 3. That the defendants have an established history of undermining and sabotaging the applicant's advancement or progression. That is that the defendants are prohibited in acts that hamper, deliberately subvert or hurt the efforts of the applicant. … 28 The attempt to advance these causes of action for resolution before this Court was, not surprisingly, returned to by Ms Chandrasekaran in her May Submissions. That document listed the "causes of action in this matter" under the following headings: Deceptive and misleading conduct; Breach of fiduciary duty; Breaches of Privacy and the tort of breach in confidence, including: - intrusion upon seclusion and Misuse and Disclosure of Personal Information (breaches in privacy)/Breaches in confidence; - Misfeasance in public office; Economic torts, including: - Inducing breach of contract; - Intimidation; - Conspiracy to injure and by unlawful means; - Unlawful interference with trade; - Injurious falsehood; and - Defamation. The document concluded with submissions being directed to: "Forensic purposes sought to be achieved in issuing subpoenas". 29 There is not to be found within either the Amended Originating Application or the May Submissions clearly articulated causes of action. There may be an identification of the causes of action sought to be relied upon; but what is missing from any of these documents is any clear identification of: the material facts which go to make out that causes of action; and any basis upon which the Respondent may be arguably exposed to liability. 30 Initially, in response to the submission advanced on behalf of the Respondent that the Court lacked jurisdiction with respect to the causes of action, Counsel for Ms Chandrasekaran focussed the Court's attention upon her submissions made in respect to "unlawful interference with trade" and "injurious falsehood" in the May Submissions. At the hearing on 29 May 2019, Counsel's submission was that such claims were advanced pursuant to the Australian Consumer Law, namely a matter in respect to which the Court has unquestioned jurisdiction. 31 So much for present purposes may be accepted. But difficulty emerged when attention was further focussed upon the content of the May Submissions. The content of those submissions, Counsel for the Respondent contended, denied it the opportunity to properly understand how any of those causes of action were sought to be made out. That submission of the Respondent is accepted. 32 Guided by reference to those causes of action upon which Counsel for Ms Chandrasekaran focussed attention upon, as opposed to an example selected by the Respondent, the May Submissions stated, in part, as follows (without alteration): D. UNLAWFUL INTERFERENCE WITH TRADE The Respondent has directly used material from the illegal and unlawful access to the Applicant's communications to harass her by repeating aspects of her communications or activities out of context to humiliate her, In doing so, the Respondent has also undermined and destroyed potential avenues professionally by accessing this information and then contacting such persons, such as Mr Navaratnem and Dr Padhi giving these persons information about the Applicant for these persons to join in and participate in the harassment and ensure that any application or job opportunity is destroyed by this process. That is, the intermediaries such as Mr Navaratnem and Dr Padhi have used her information to parody her, humiliate and ridicule her, as well as destroying any viable relationship that would have otherwise existed between the Applicant and these people. Similarly, Mr Harvey and Dr Rosalie Wilcox have committed perjury with the intention to pervert the Course of justice for the Respondent by fabricating conversations for the Respond net, which is contained in Annexure 2, 3 and 4 of the Fourth Affidavit. Similarly, the Respondent contacted Ms May of the Safework Commission to harass her about details found on her bank statements and denying an investigation into her complaint. Each of these persons have committed a civil and criminal wrong themselves, in addition to the Respondent. E. INJURIOUS FALSEHOOD 1. The slanders listed above number 1-4 have caused her to be denied opportunities to train and earn an income since 2012 and exclusion from NSW Health through attempts to gaslight and portray the Applicant as psychiatrically unwell(1). 2. The creation of these parody skits are most commonly performed by the Applicant's direct employer or during training her supervisor made possible by the Respondent convincing these persons to have lesser view of the Applicant undermining her employment(2). … 33 Accepting that the attempt made in the May Submissions to articulate a cause of action was formulated by an unrepresented party, it is nevertheless apparent that those Submissions failed to identify with any degree of particularity or specificity such fundamental matters as: the "material" which was used; the manner in which the Respondent is said to have "used" that material; who it was that obtained "access to the Applicant's communications"; and why that "access" was "illegal and unlawful". If attention is shifted from the opening words in the written submissions directed to the unlawful interference with trade and directed to that portion of the submission that addressed the conduct of "intermediaries", left unspecified are such matters as: why it is that the Respondent is said to be exposed to liability for the conduct of unspecified "intermediaries"; who are the "intermediaries", other than those identified; why it is that the Respondent is liable for the "intermediaries" that are identified, namely Mr Navaratnem and Dr Padhi; the manner in which the "intermediaries" are said to have "used" information; and what is the information embraced within the expression "her information". If attention is then shifted to "Injurious falsehood", a similar lack of specificity emerges, including but not limited to: the "opportunities" referred to; and why it is that the Respondent is said to assume liability for the denial of those opportunities. This list is by no means exhaustive. 34 Another of the examples chosen by Counsel for Ms Chandrasekaran focussed upon claims for "cyberstalking" and (in particular) "gaslighting". This was understood to relate back to the following claims for relief made in the Amended Originating Application: 6. Prohibiting the defendants from publishing information which concerns the applicant and is said to be private and confidential. … 10. Prohibition of any activity resembling cyber and physical stalking and harassment. 35 No further clarification is to be found in the Amended Originating Application as to why the Respondent is said to be exposed to liability for "cyberstalking" and "gaslighting". If reference is made to the May Submissions, this proposed cause of action is developed in relevant part as follows (without alteration): BREACHES IN PRIVACY AND THE TORT OF BREACH IN CONFIDENCE Intrusion upon seclusion and Misuse and Disclosure of Personal Information (breaches in privacy)/Breaches in confidence … Cyber stalking is one of the many forms of stalking. Under the Crime (Domestic and Personal Violence) Act 2007 NSW stalking includes the following of a person about or watching or frequenting place or vicinity, or an approach to a person's place of residence, business, or work or any place that a person frequents for the purposes of any activity. Here again I refer to the activities of persons faking their identity on page 18 of the Second Affidavit, Ms Sally Graycar, and then contacting persons in my WhatsApp and Facebook accounts from Canada to participate in the a group harassment of me asking if I am tired of being stalked and Dr Rosalyn Lai using the phone as a carriage service to yell abuse and make nuisance calls. Harassment through gaslighting is another example of the type of harassment. Breach in privacy and confidence cases: ABC v Lenah Game Meats Pty Ltd HCA 2001 Giller v Procopets VSCA 2008 Campbell v Mirror Group Newspapers HCEW 2004 No particularity is given in that document with respect to such matters as: the manner in which the Respondent is said to have participated in "cyber stalking"; or the "activities" or those "persons" (other than perhaps Ms Graycar) or the manner in which those activities of those persons "faked" their identity; or the "persons" who are said to have been contacted "in my WhatsApp and Facebook accounts…". Left to one side for present purposes is any attempt to determine the manner in which such allegations could give rise to a cause of action, let alone a cause of action for which the Respondent is liable. The attempt, for present purposes, is to try and understand the factual content of the allegation itself. 36 No disservice is done to the case sought to be advanced by Ms Chandrasekaran by referring to the examples chosen by her Counsel. Whichever other example is chosen, even further reason emerges to question the manner in which liability is sought to be placed at the feet of the College.

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The absence of clarification in the evidence filed 37 Any lack of particularity or specificity in the Amended Originating Application or the May Submissions could, potentially, be remedied by recourse to the evidence. 38 But if reference is had to Ms Chandrasekaran's evidence, rather than giving content to her claims, the evidence only serves to occasion further uncertainty. 39 It is not helpful to canvas that evidence in its entirety. It is, again, sufficient to make reference to those parts of the evidence which relate to those causes of action to which reference was made by Counsel for Ms Chandrasekaran. 40 With reference to "Cyberstalking", Ms Chandrasekaran in her 30 November 2018 affidavit states as follows (without alteration): 21. Cyberstalking The cyberstalking has occurred in various forms and includes email, internet and computer stalking as defined by the Australian Institute of Criminology. At all times these communications are incessant, unwanted and intrusive. The quality of these communications is derogatory, degrading and deranged, where the statistical odds of coincidence are very low. I have received deranged test messages that incorporate personal mobile phone and online communications incorporating and including my messaging and call history, which seemed initially to coincide with points of advancement. That the superficial meaning of the material or content is not as important or proactive as recognising the repeat violation to privacy and the means and motivation to generate the emails, messages and other communications. In addition to this I have experienced: Prevention of communication which had been planned online in advance, such as not being able to access my phone or email accounts by arresting reception or other functional aspects of devices. Or, preventing access to my email account to email for communication of my reports when they are required to make me appear professionally incompetent. Changes to my status remotely on social media such as WhatsApp and messages not sent be me on data messaging applications. Receiving emails to email accounts the sender could not know about within a breach in privacy or in confidence. Unwanted and inappropriate anonymous gift to a hotel I had made a booking with online interstate. Subscriptions to email lists to my email account based on personal items being manipulated after a break-in. Removal from subscription lists to reduce knowledge of work available and eliminate professional contacts and opportunities to ensure isolation. Repeated questioning if I am tired of being stalked. Threatening and obscene phone calls followed by sadistic laughter reminiscent of the type you might hear of a chronically institutionalised mentally ill person. Even if questions as to the admissibility of such an affidavit is left to one side, a recitation of the allegations made does not expose - with respect - any attempt as to particularity and any attempt to seek to attribute such conduct to the College. 41 If reference is made to the example focussed upon by Counsel for Ms Chandrasekaran as to "gaslighting", her 24 May 2019 affidavit states as follows (without alteration): 10. Gaslighting is a manipulation tactic made famous in the movie Gaslight, where a woman marries a man who embarks on a campaign to make her distrust herself and her perception of reality with the intention to drive her crazy. For example, when he dims the gas lights he insists she is imaging it. The intention is to disempower and to discredit the victim, exposing her to ongoing abuse and exploitation. Gaslighting can be accomplished in several ways, sometimes a person can assert something with such apparent intensity of conviction that the other person begins to doubt any other perspective, usually with denial. Another method is to bring up historical facts that seem largely accurate but contain minute, difficult to prove distortions and then using them to 'prove' the correctness of their position. Often there is a fragment, though barely, of truth to the statement, such as the correct date, but the repeat minute distortions creating a false impression is what disfavours the victim, with subtle repeated portrayals, often in conjunction with ridicule and humiliation, to ensure the victim is doubted, and to erode their credibility and any confidence anyone might wish to attribute to the victim. The most undermining aspect of gaslighting is its focus on the 'little things' and often singular words that superficially seem too small to warrant much attention ordinarily, and aren't sufficiently distracting on their own, but done repeatedly in combination and over time, by various persons it creates a subversive narrative. To expose this the attention to detail then becomes necessary in this matter. 11. Gaslighting in the courtroom is recognised in a recent article published by the American Bar Association. Gaslighting is a punishable criminal offence in the United Kingdom under the Serious Crimes Act 2015. 12. I refer to an example of the gaslighting describe, which appears throughout formal documents suggesting a common author and likely the author of the material impersonating me to the Federal Government relating to terrorism, which appears to be highly paranoid and inclusive of accusations towards Federal authorities relating to terrorism, that appear to have been created over years. Again, if questions as to the admissibility of such an affidavit is left to one side, and if an attempt is made to try and distil from the account given any potential responsibility of the College for such conduct, any coherent identification of the basis upon which the College could potentially assume liability is wanting. 42 Thus, by way of further example, Counsel for Ms Chandrasekaran, made reference to the following account given by Ms Chandrasekaran in the 30 November 2018 affidavit as to what she claimed to constitute "Physical stalking" and as what Counsel submitted was sufficient evidence of the cause of action of trespass: In 2013, I returned to my car to drive home and my car was parked in an isolated location later at night where it was substantially dark and poorly lit and away from work. My car had been entered and the door was left open with the alarm disabled. The car had been left locked. 'The following day at work I told Dr Elizabeth Spencer, Psychiatrist at Headspace Campbelltown "My car was broken into last night". Her response was "Yes! And some people leave their devices under the seat'. After stating this she leaned forward and provided a physical demonstration moving an imaginary device in her hands and tucking it underneath the seat she was sitting on. A most bizarre response. Interestingly, I had left my car that night with my tablet and mobile phone under my (Driver's) seat which I ordinarily did not do. Nothing was stolen from the car that I could tell. I have experienced repeated break and enter to my places of residence and car. In relation to my car, for example, I have found it unlocked and doors left open late at night in isolated places where I have parked for personal reasons, depositing of waste not mine, as well as repeated malicious damage to my car by way of numerous car tyres being slashed, number plates purposefully removed yet the screws put back in place, mechanics of my car manipulated so as to cause accident, each time the pattern of damage remains the same, for example to the same tyre, but occurs when parked anywhere, i.e., home, work, and other places for social or personal reasons. 43 Although it may be possible for a Respondent to itself make inquiries as to such matters as: the one occasion in 2013 when the car was said to be broken into which was the subject matter of the conversation with Dr Spencer; there is a total lack of specificity as to: the "repeated" instances when it is claimed both the car and Ms Chandrasekaran's place of residence were broken into. The account given by Ms Chandrasekaran, moreover, fails to identify: any basis upon which any action for (for example) trespass to the car would lie at the feet of the Respondent. Dr Spencer, it may be noted, is not an employee or agent of the Respondent. 44 The making of such generalised assertions of wrongdoing characterise much of Ms Chandrasekaran's evidence. It serves no useful purpose to give yet further examples.

[15]

Questions of discretion 45 Placed at the forefront of the submissions advanced by Counsel for Ms Chandrasekaran were at least two words of caution, namely: any exercise of the discretion conferred by s 31A was conditioned upon the need to exercise "caution" (cf. Spencer [2010] HCA 28 at [24], (2010) 241 CLR at 131) and the fact that "the Court must be cautious not to do an injustice by summary dismissal" (Commonwealth Bank of Australia [2006] FCA 1416 at [30]); and the need for "caution" in circumstances where the party seeking summary judgment has not first sought a direction of the Court pursuant to s 37P of the Federal Court of Australia Act directed to remedying any difficulty said to be facing that party. 46 The need for "caution" and the necessity to avoid doing an "injustice" to a party, especially an unrepresented party, may readily be accepted. 47 It is the latter proposition advanced by Counsel on behalf of Ms Chandrasekaran which needs to be developed - albeit only to be rejected by reference to the facts of the present case. 48 A recurring submission advanced by Counsel on behalf of Ms Chandrasekaran was that it ill-behoved a party seeking either the summary dismissal of a proceeding or an order that a proceeding be struck out without first seeking a direction pursuant to s 37P of the Federal Court of Australia Act . No submission was made by Counsel for Ms Chandrasekaran that the Court could not enter summary judgment or strike out a proceeding without a direction being sought; but a submission was made that as a matter of discretion the Court should be hesitant to do so without such a direction being sought. 49 Section 37P of the Federal Court of Australia Act provides as follows: Power of the Court to give directions about practice and procedure in a civil proceeding (1) This section applies in relation to a civil proceeding before the Court. (2) The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding. (3) Without limiting the generality of subsection (2), a direction may: (a) require things to be done; or (b) set time limits for the doing of anything, or the completion of any part of the proceeding; or (c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or (d) provide for submissions to be made in writing; or (e) limit the length of submissions (whether written or oral); or (f) waive or vary any provision of the Rules of Court in their application to the proceeding; or (g) revoke or vary an earlier direction. (4) In considering whether to give directions under subsection (2), the Court may also consider whether to make an order under subsection 53A(1). (5) If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate. (6) In particular, the Court or Judge may do any of the following: (a) dismiss the proceeding in whole or in part; (b) strike out, amend or limit any part of a party's claim or defence; (c) disallow or reject any evidence; (d) award costs against a party; (e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise. (7) Subsections (5) and (6) do not affect any power that the Court or a Judge has apart from those subsections to deal with a party's failure to comply with a direction. 50 The submission founded upon s 37P of the Federal Court of Australia Act, with respect, lacks merit. 51 The proceeding was commenced on 21 August 2018. Thereafter there were a series of case management hearings held on no less than five occasions ranging from October 2018 through to 2019. Further, over this period an interlocutory hearing was listed on no less than three occasions. On one view of it, directions should have been made at a far earlier point of time for Ms Chandrasekaran to file a Statement of Claim or, at the very least, Points of Claim to clarify the causes of action upon which she wished to rely and the material facts to support any such causes of action. That course was not pursued because the view had been formed that Ms Chandrasekaran was (largely) unrepresented and it was thought more appropriate to allow her to file her evidence with a view to the causes of action thereby emerging. Such a course, with the benefit of hindsight, worked unfairly to the Respondent and certainly did not progress the hearing in a manner consistent with s 37M of the Federal Court of Australia Act. 52 The difficulties confronting the Respondent were real. The evidence being filed did not assist those advising the Respondent as to what the case was that Ms Chandrasekaran was seeking to advance. Those advisors thus wrote to Ms Chandrasekaran on 4 October 2018 (following the joint first case management hearing and interlocutory hearing) as follows: Claim against Royal Australian and New Zealand College of Psychiatrists 1. We refer to your proceeding in the Federal Court of Australia against the Royal Australian and New Zealand College of Psychiatrists (the College). 2. In the interest of resolving (if possible) your claim against the College as quickly and cost-efficiently as possible, we would like to understand more clearly your specific complaints against the College, the relief that you seek against the College and the basis for your entitlement to that relief. 3. To provide us with a better understanding of your claim against the College and why you are entitled to relief against it, please let us know: (a) the precise incidents (including, if possible, relevant dates and locations) which you say constitute the acts of abuse, privacy violation, breaches of confidence, impersonation, dissemination of injurious falsehoods, cyber-stalking, physical stalking and any other wrongdoing that are the subject of your proceeding; (b) the individuals who you say perpetrated or were responsible for the specific incidents identified in response to (a) above; and (c) the basis on which you say the college is responsible for or otherwise liable for these individuals' conduct. 4. The College is considering its position in respect of the further conduct of the proceeding and its position is reserved, including with respect to seeking to have the proceeding dismissed if appropriate. Subject to that, the requests contained in this letter are made that in the hope that we can better understand your case against the College and so that the College can respond to the issues that are in dispute and, possibly, resolve them. If you are able to provide some particularity about your claim against the College, this will save the parties time and expense. 5. We have been specifically instructed by the College to inform you that the College acknowledges that this litigation is undoubtedly stressful and trusts that you have appropriate and necessary support available. 6. We look forward to your response within seven days. 53 The response was less than helpful. By way of email sent the following day, Ms Chandrasekaran wrote: There is more than ample material in the Affidavit for the RANCP to instigate an investigation. 54 Those advising the Respondent wrote again to Ms Chandrasekaran on 9 October 2018 as follows: Dear Ms Chandrasekaran Claim against Royal Australian and New Zealand College of Psychiatrists Federal Court of Australia Proceedings No. NSD1535/2018 (the Proceedings) 1. We refer to our letter dated 4 October 2018 and your email in response dated 5 October 2018. 2. We note that your email did not specifically address the questions we asked in paragraph 3 of our letter. 3. We repeat our request for information as set out in paragraph 3 of our letter dated 4 October 2018. 4. Please provide a detailed response to our request for information by 4:00pm on Friday 12 October 2018. Should you fail to provide the information requested, we reserve our client's rights to bring an application for dismissal of the Proceedings without further notice to you. 55 Ms Chandrasekaran responded by way of email on 12 October 2018 stating: I am going to have to provide the information you require by Monday as I really have not had a chance to date to be able to show the material to my lawyers. There were further emails. In short, the information which had first been sought in the letter sent on 4 October 2018 was not provided. 56 Faced with such a lack of clarification as to the case sought to be mounted against it, the Respondent could - it is accepted - have gone further and sought the intervention of the Court and sought, in particular, a direction pursuant to s 37P of the Federal Court of Australia Act. But its failure to do so, it is respectfully concluded, does not operate to its prejudice when exercising the discretions conferred by s 31A of the Federal Court of Australia Act and r 26.01 of the Federal Court Rules. 57 Although a direction should have been made at the insistence of the Court earlier than 16 May 2019, in the intervening period between October 2018 and May 2019 the Respondent adopted a course whereby Ms Chandrasekaran was given every opportunity to file evidence and develop her case. It cannot be criticised for doing so. No submission could prevail that discretionary relief should now be refused by reason of the Respondent failing to seek a direction pursuant to s 37P in the time as between the commencement of the proceeding and the hearing date in May 2019. Any such submission would be satisfactorily answered by the filing by the Respondent as early as October 2018 of an Interlocutory Application seeking summary judgment and its subsequent co-operation in thereafter seeking to extend to every opportunity to Ms Chandrasekaran to "get her house in order". 58 The Court itself could have managed the proceeding in a way far better directed to achieving the objectives of s 37M of the Federal Court of Australia Act. But that failure cannot be visited upon the Respondent. The reliance sought to be placed by Counsel of Ms Chandrasekaran upon s 37P of the Federal Court of Australia Act as a discretionary reason for not entering summary judgment is, with respect, misplaced. Although no "directions about the …. procedure to be followed" was expressly given pursuant to s 37P, the objective sought to be achieved by s 37P was adequately addressed in the present case by: the repeated guidance proffered to Ms Chandrasekaran during the course of many case management hearings; and the ultimate Order which was given on 16 May 2019 for the filing by the Applicant of an Outline of Submissions identifying those matters specified in the Order - being matters which would answer the clarification sought by the Respondent in its 4 October 2018 letter.

[16]

The need for caution - an opportunity to properly plead a cause(s) of action 59 If not for the need to exercise "caution" before entering summary judgment pursuant to s 31A, the deficiencies that have been identified in the causes of action sought to be advanced by Ms Chandrasekaran, and the repeated opportunities to remedy those deficiencies, would have warranted the entry of summary judgment in favour of the College. 60 But it is the need to exercise "caution" before exercising that discretionary power which warrants extending to Ms Chandrasekaran an opportunity to seek leave to file a Statement of Claim, certified by Counsel, which identifies a proper basis for making the allegations pleaded. The requirement for certification assumes an important part of the exercise of the discretion in the present proceeding. That requirement is to be found within r 16.01 of the Federal Court Rules, which provides as follows: Pleading to include name of person who prepared it (1) A pleading must: (a) state the name of the person who prepared the pleading; and (b) include a statement by the person that the person prepared the pleading; and (c) for a pleading prepared by a lawyer, other than a pleading referred to in paragraph (d) - include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for: (i) each allegation in the pleading; and (ii) each denial in the pleading; and (iii) each non-admission in the pleading; and (d) for an alternative accompanying document referred to in rule 8.05 that is prepared by a lawyer - include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for the matters set out in the pleading. 61 Even extending Ms Chandrasekaran this opportunity, at this late stage in the proceeding, is a conclusion reached with considerable diffidence. Counsel for Ms Chandrasekaran, during the course of the current hearing, repeatedly committed his client to the course of facing the summary judgment application by reference to the causes of action identified in the Amended Originating Application and the May Submissions. Rejected was any intention to seek to file a Statement of Claim or even Points of Claim. 62 Counsel, unconstrained by the Orders made on 16 May 2019 and unconstrained by the May Submissions filed by Ms Chandrasekaran, may potentially be able to distil from the morass of materials collated by Ms Chandrasekaran a cause or causes of action against the College. Given the evidence of legal counsel for the Respondent in the December 2018 affidavit that "[n]one of the doctors or directors of training referred to in the Applicant's affidavit are employed by the College", there is no self-evident basis for attributing liability to the College. However, whatever other criticism may be directed to the form and content of the existing affidavits filed by Ms Chandrasekaran, that material does identify: various people; and specific instances, albeit with a considerable lack of detail as to the time when such instances took place. Counsel may be able to distil from the existing material a cause or causes of action which could potentially expose the Respondent to liability. Needless to say, much of the existing material sets forth what presently seems to be manifestly irrelevant material. But a careful separation of the relevant from the irrelevant may shine light on a potential source of liability. Considerable discipline would need to be brought to be bear. 63 Counsel should be afforded the opportunity to plead a viable cause or causes of action. 64 The hearing of any Interlocutory Application seeking leave to file a Statement of Claim, however, would be conditional upon Ms Chandrasekaran first paying the Respondent's costs of the proceeding to-date, either as agreed or assessed. The judicial process is inherently adversarial. The administration of justice is not only tempered by affording a largely unrepresented party every opportunity to obtain evidence in support of a claim, it is also tempered by the necessity to afford justice to the opposing party. Consideration has been given to whether any consideration of an application seeking leave to file a Statement of Claim should be made conditional upon the prior payment of the College's costs of the proceeding to-date. Notwithstanding some hesitation, it has ultimately been concluded that such costs should be paid in advance of any consideration of an application seeking the grant of leave because: Ms Chandrasekaran has unquestionably been extended every opportunity to properly articulate her case and has repeatedly fallen short of filing a coherent articulation of her case; the Respondent has not placed any obstacle in the path of Ms Chandrasekaran seeking to articulate her cause or causes of action but has demonstrated remarkable patience in allowing an unrepresented litigant to try to formulate a case that it may have to answer; and at the hearing, Counsel for Ms Chandrasekaran committed to the issues set forth in the Amended Originating Application and the May Submissions as the basis upon which the summary judgment application should be resolved. The Respondent, it is respectfully considered, should not be put in the position of having to confront an application for leave to completely reformulate any cause or causes of action that may be sought to be advanced against it without first having its costs to-date of participating in the proceeding paid. 65 Any application for leave to file a Statement of Claim would obviously depend upon the facts and circumstances prevailing as at the date on which any such application was made but any cause of action sought to be relied on in the proposed Statement of Claim would be limited to conduct which had taken place as of the date of the filing of the Originating Application on 21 August 2018. Without pre-empting any such consideration as would then be given to any such application seeking leave to file a Statement of Claim, matters to be taken into account would include not only: a consideration of the manner in which a cause of action is sought to be pleaded, and in particular the identification of "the material facts on which" Ms Chandrasekaran would seek to rely (cf. r 16.02(1)(d) of the Federal Court Rules) but would also include a consideration of such further matters as: whether any pre-conditions to invoking the jurisdiction of this Court have been satisfied. 66 To the extent that Ms Chandrasekaran may seek to invoke the jurisdiction of this Court by making a claim under (for example) The Australian Consumer Law and thereafter the "associated" or pendent jurisdiction of this Court, questions which should at least be taken into account by any Counsel drafting a Statement of Claim would include whether the facts of relevance to any other causes of action constitute part of the same "matter" or forms part of the "litigious or justiciable controversy between the parties of which the federal claim or causes of action forms part": cf. Re Wakim; Ex parte McNally [1999] HCA 27 at [135], (1999) 198 CLR 511 at 583-584 per Gummow and Hayne JJ. This comment is again prompted by the manner in which (for example) the May Submissions seek to identify the following cause of action (without alteration): C. CONSPIRACY TO INJURE AND BY UNLAWFUL MEANS The directors of training as a group setting me up to fail wherever I go Through accessing my movements - to undermine overseas opportunities, see Tavistock Clinic applications 2016 and 2017 and Mr Navaratnem Conspiracy with third party ? Australian Signals Directorate or ASIO or Department of Defence, all the commissions etc. See my Fourth Affidavit I intend to file The actions described began during the Applicant's training and appear to have been co-ordinated by several DOTs including Dr Boman with the intention to victimise the Applicant and push her out of the profession as the shared common design. The intention is to harm the Applicant psychologically, physically, socially and financially to precipitate her to bring her irreparable harm and to precipitate her suicide. The damage sustained has been emotional, psychological, physical and pure economic loss with the intent to push her to bankruptcy. The account to date involves multiple persons acting together t, with a simple example of the breach in confidence between Dr Padhi (Westmead Hospital) and Mr Navaratnem (London, UK) referred to on page 19 of the Second Affidavit. This breach in confidence was made possible through a breach to the Applicant's privacy through intrusion upon seclusion, accessing her activities and communications through identity fraud and the flagging of her internet traffic, as well as the misuse and disclosure of her personal information, which is unlawful. That is by using violence, fraud and dishonesty, giving relevance to the Commonwealth Criminal Code Act 1995 s11.5. This has been made possible through a third party/agency through identity fraud relating to terrorism. This third party has informed the conspirators to co-ordinate the misleading and deceptive conduct such as to set ups to fail, defamation, harassment and other causes of action described herein, with the intention to cause damage to the Applicant between the third party and the Respondent through its agent(s) and between members of the Respondent through conspiratorial agreement. The examples given above under A are also examples of conspiracy to injure through unlawful means. 67 Without wishing to labour a point manifest elsewhere, this attempt to identify a viable cause of action for which the College is said to assume liability fails to identify (inter alia): the "directors of training" to whom reference is made (aside from, perhaps, Dr Boman); the manner in which those "directors" are said to have "accessed" the movements of Ms Chandrasekaran; the facts which go to make out a "conspiracy"; and the facts which are of relevance to any "conspiracy" with the "Australian Signals Directorate or ASIO or Department of Defence…". It is when a party seeks to apparently go well beyond conduct for which any opposing party may otherwise be thought to be potentially exposed to liability that legitimate concerns may arise as to whether facts of relevance (to, for example, a "conspiracy" with "ASIO") may well travel well beyond those of relevance to the "federal matter" with respect to which this Court has jurisdiction.

[18]

Subpoenas - the requirement for leave 72 A party seeking to issue a subpoena requires the leave of the Court: r 24.01 of the Federal Court Rules. 73 The party seeking leave "bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings": Wong v Sklavos [2014] FCAFC 120 at [12]; (2014) 319 ALR 378 at 381- 382 per Jacobson, White and Gleeson JJ. 74 Normally the grant or refusal of leave takes place ex parte in chambers, although there may be circumstances in which an application for leave may be heard in open court: Spencer v Commonwealth of Australia [2014] FCA 1234 at [11] per Mortimer J. 75 The general principles to be applied when exercising the discretion to grant or refuse leave to issue a subpoena have long been established. In McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233, (2005) 221 ALR 785 at 802-804 Greenwood J summarised these principles, in relevant part, as follows: [35] In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge: (a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: … (b) A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: … The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery. (c) Reference has already been made to the principles identified by Branson J in Diddams v Commonwealth Bank of Australia. (d) The documents for production must be identified with reasonable particularity. ... The category of documents must not be so wide as to be oppressive. (e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case. It cannot be used for purposes of 'fishing' or for the purpose of determining a preliminary question as to whether the party has a supportable case ... or to investigate the character of the opposing party's evidence ... (f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave: [8] It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed. (g) The same notion was expressed in Small (at 575) and Dorajay Pty Ltd v Aristocratic Leisure Ltd [2005] FCA 588 at [34] in requiring the existence of a legitimate forensic purpose for the production of documents. (h) In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena? (i) Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432; [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. (j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by s 55(1) of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding. (k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: … (l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: … (m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be 'seriously unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment'. … (n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: … (o) In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at [18]: [18] These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades (1989) 85 ALR 1 at 11] in the comments quoted by Beaumont J [in Trade Practices Commission v Arnotts Limited], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive. (some citations omitted) 76 As is apparent from (inter alia) the observations of French J in Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 and those of Stone J in Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588, considerations to be taken into account when exercising the discretion to grant or refuse leave to issue a subpoena go well beyond an assessment as to whether the party seeking leave has demonstrated a legitimate forensic purpose: cf. Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 at [26], (2011) 195 FCR 43 at 50 to 51 per Bromberg J.

[19]

The power to set aside a subpoena 77 The power to set aside a subpoena is to be now found in r 24.15 of the Federal Court Rules. That rule provides as follows: Setting aside or other relief (1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in relation to it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. The power conferred by r 24.15 is an incident of the Court's "inherent power to regulate the use of its processes by parties to the litigation": Kaboko Mining Limited v Van Heerden [2016] FCA 1532 at [10] per McKerracher J. 78 An application to set aside a subpoena, in many cases, may most conveniently be made to the Judge who granted leave to issue the subpoena and the application may be stood over for hearing at the trial of the case in which the subpoenas were issued: cf. Haile-Michael v Konstantinidis (No 3) [2013] FCA 53 at [18] per Jessup J. 79 The grounds upon which such an application may be made are comparatively well-recognised. One summary of those grounds was provided by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows: Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example: 1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ... 2. where to require the attendance of a witness would be oppressive ... 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ... 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ... 5. where the subpoena has been used for the purpose of obtaining discovery against a third party... 6. where to require a party to comply with a subpoena to produce documents would be oppressive ... 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ... (citations omitted) See also: Mandic v Phillis [2005] FCA 1279 at [33], (2005) 225 ALR 760 at 771-772 per Conti J; Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 at [20] per Flick J. 80 Differently expressed, Jacobson, White and Gleeson JJ in Wong v Sklavos [2014] FCAFC 120, (2014) 319 ALR 378 at 381-382 expressed the general principles as follows: Apparent Relevance [12] Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well-established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: … A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: … Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative …, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case …, or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued: … (citations omitted)

[20]

The applications for subpoenas 81 The three persons seeking to have subpoenas set aside which are presently before the Court are: Dr Gintli - being a member of the College's peer review group; Dr Lai - being a consultant psychiatrist who was admitted as a fellow of the College and who worked as an accredited trainee in around 2009 and 2010 together with Ms Chandrasekaran; and Mr Harvey - being a medical recruiter at Charterhouse Medical Pty Limited. 82 Leave to issue these subpoenas, it should be noted, was made against a background where Ms Chandrasekaran, during the period from about December 2018 to May 2019, sought leave to have subpoenas issued to no less than 12 persons (and 1 entity), with Ms Chandrasekaran seeking leave to issue subpoenas on no less than 53 occasions. 83 The repeated applications made by Ms Chandrasekaran were canvassed during case management hearings or interlocutory hearings held (inter alia) on 13 February, 27 March and 16 April 2019. Concerns were repeatedly expressed to Ms Chandrasekaran during the course of those case management hearings as to the lack of certainty as to the case she sought to pursue and the purpose sought to be pursued by Ms Chandrasekaran in seeking leave to issue subpoenas. Repeated requests were made by Ms Chandrasekaran for reasons to be given for refusing leave to issue subpoenas and although Ms Chandrasekaran was told that there was no requirement upon a Judge to give reasons for refusing leave to issue subpoenas, the question was addressed in some detail at the case management hearings held on 13 February and 16 April 2019 and the interlocutory hearing on 27 March 2019. Partly to address her concerns as to why leave was being repeatedly refused, and partly to provide some guidance to an unrepresented party, Ms Chandrasekaran was told that: in addition to continuing concerns as to the manner in which she sought to establish liability on the part of the College; further reasons for refusing leave to issue subpoenas included, on many occasions, concerns such as: the time period over which documents were sought to be produced; the role which the proposed recipient of the subpoena played in the matters of concern to Ms Chandrasekaran and the role that such a person played in the functions of the College; and the breadth of documents sought to be subpoenaed. 84 It was in many cases the culmination of these concerns that led to the refusal of leave. Always in the balance was the need to weigh up: the difficulties being confronted by Ms Chandrasekaran as an unrepresented litigant; as against the right to privacy and confidentiality of the records of the individuals sought to be subpoenaed. 85 But presently in issue are the three subpoenas the subject of the three Interlocutory Applications. Even had the conclusion not been reached that the present proceeding should not be permitted to continue in its present form, the conclusion would have been separately reached that each of the three subpoenas should be set aside by reason of the lack of any identifiable legitimate forensic purpose.

[23]

The filing of submissions after the close of hearing 91 At the outset of the hearing, Counsel for Ms Chandrasekaran maintained that he had just been given materials to be relied upon by two of those persons seeking to have subpoenas set aside. That was disputed. It mattered not, however, when Counsel received those materials. Leave was given to Counsel to provide by 5.00pm on 29 May 2019 such further submissions as he saw fit confined to the matters raised in those more recently provided materials. 92 Notwithstanding the absence of leave given to Ms Chandrasekaran to file further submissions, and none was sought by her Counsel or given, Ms Chandrasekaran nevertheless proceeded to attempt to file further submissions. Those further submissions were not provided by Ms Chandrasekaran to the other persons participating in the hearing. Indeed, it is understood that Ms Chandrasekaran did not wish for a copy of those further submissions to be provided to anyone other than the Court. 93 Such a course is to be condemned. In Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) [2013] NSWSC 1971 at [14], Kunc J referred with approval to the following observations of Redlich and Dodds-Streeton JJA in R v Fisher [2009] VSCA 100, (2009) 22 VR 343 at 351-352: [38] It is "important to bear in mind the characteristics of modern litigation" as Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design and Development Pty Ltd. It is commonplace for judges, whether in the course of case management or otherwise, to be provided with bundles of materials, documents for tender, affidavits, and emails not all of which will be tendered or read. But in all such cases the party providing them is bound to simultaneously provide them to the other side. The circumstances in which direct communications may be made to the judge's associate are subject to important qualifications. Written communications between a party to litigation and the judge's associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party's express agreement (save in an exceptional case warranted for example by an ex parte application). [39] Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to enquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges' chambers, presents potential risks of the errors demonstrated in the present case. (footnotes omitted) These observations are endorsed. 94 Throughout the conduct of this proceeding, it is respectfully considered that Ms Chandrasekaran has been given more than an adequate opportunity to develop her case. 95 There must, with respect, be an end to a hearing - submissions cannot continue to be received after a hearing, without leave being granted to do so and without providing other parties to the proceeding with a copy of those submissions. It has been assumed that Counsel appearing for Ms Chandrasekaran was not aware of his client sending these further submissions to the Court. 96 The further submissions of Counsel have been taken into account; the further submissions filed by Ms Chandrasekaran after the hearing concluded have not been considered.

[24]

CONCLUSIONS 97 It is concluded that the proceeding, as it is presently presented, is both "vexatious" and an "abuse of the process" of the Court within the meaning of and for the purposes of r 26.01(1)(b) and (d) of the Federal Court Rules. That conclusion has been reached primarily because it is not possible to discern from the Amended Originating Application, the May Submissions or the affidavit evidence filed by Ms Chandrasekaran: the material facts to be relied upon in support of her asserted causes of action; the manner in which any of the causes of action are sought to be made out; or the basis upon which the College is said to assume liability for those facts which may be distilled from the affidavits. Even with the benefit of Counsel, it should be noted that it has proved difficult to track through the May Submissions and the affidavit evidence with a view to attempting to discern the content of the causes of action sought to be relied upon. The affidavits, moreover: are largely inadmissible as to form; and contain much which lacks any apparent relevance to any factual matter that may be in dispute between Ms Chandrasekaran and the College. 98 To allow the present proceeding to proceed to hearing in its current form would be both "vexatious" to the College and an "abuse of the process" of this Court. Neither should any opposing party, or the Court, be faced with the task of either: attempting to distil the irrelevant from the relevant; and thereafter: attempting to identify the presently unspecified material facts which could potentially make out a cause of action. 99 The discretion to enter summary judgment is, accordingly, enlivened. 100 Notwithstanding the repeated commitment by Counsel on behalf of Ms Chandrasekaran to proceed to resolve the Amended Interlocutory Application filed by the College seeking (inter alia) summary judgment by reference to the existing form of the Amended Originating Application and the May Submissions, it is nevertheless considered that Ms Chandrasekaran should be afforded the opportunity to seek leave to file a Statement of Claim properly pleading such causes of action as she may wish to pursue. Any such proposed Statement of Claim should bear the endorsement of Counsel and otherwise comply with rr 16.01 and 16.02 of the Federal Court Rules. 101 The three subpoenas and two Notices to Produce subject to the various Interlocutory Applications should be set aside. 102 Costs should follow the event. Ms Chandrasekaran should thus be ordered to pay the costs of both the College and the persons presently contesting the subpoenas issued. It is also presently considered that any consideration of any Interlocutory Application seeking a grant of leave to file a Statement of Claim would be conditional upon all such costs of the College having first been paid. 103 In the event that no application for leave to file a Statement of Claim is made within 28 days, judgment should be entered in favour of the College pursuant to s 31A of the Federal Court of Australia Act and r 26.01 of the Federal Court Rules.

At a glance

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Judgment (43 paragraphs)

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Cases Cited (33)