The primary judge's decision
13 The primary judge considered three substantial issues in his reasons: first, whether Dr Chandrasekaran's failure to pay the costs in accordance with order 1 of the 16 October orders was fatal to the reinstatement application, secondly, whether the 27 May statement of claim provided a sufficient reason to allow the proceeding to be reinstated and thirdly, whether his Honour should recuse himself.
14 His Honour found that, as a matter bearing on his discretion, Dr Chandrasekaran's continuing failure to pay the costs of the earlier part of the proceeding told against it being reinstated. He noted that there had been about six case management or interlocutory hearings prior to the substantive hearing in May 2019. That hearing led to the 16 October orders, from which I first refused an extension of time and leave to appeal. At the substantive hearing in May 2019, Dr Chandrasekaran, through Mr King her then counsel, resisted an opportunity to reformulate, by way of a pleading, the issues that she wished to have resolved. She opted to continue with the then form of the proceeding. In the event, his Honour found that the form of the proceeding was vexatious and an abuse of the process of the Court (Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687 at [97]-[98]). That was because of Dr Chandrasekaran's inability to articulate a comprehensible cause of action. Accordingly, the primary judge concluded that he should make the 16 October orders, as I explained in Chandrasekaran [2020] FCA 214 at [40].
15 His Honour noted that the College had incurred considerable costs in resisting Dr Chandrasekaran's subsequent attempts to have the 16 October orders varied, including:
filing and relying on a further proposed statement of claim that she drafted and emailed to the College and the Court, shortly before the hearing on 28 April 2020;
emailing the 27 May statement of claim, again shortly before the Court sat on 27 May 2020.
16 His Honour found that there was no reason to depart from the previous conclusions that he had expressed; namely, that in all of the circumstances, Dr Chandrasekaran should pay the College's costs before she should be allowed to file a statement of claim certified by counsel in accordance with the Rules. The primary judge found that to permit Dr Chandrasekaran to seek leave to file a statement of claim without paying the costs would occasion a grave injustice to the College, and that she should not be at liberty, without first paying those costs, to reagitate issues that should have been properly presented for resolution during the hearing in May 2019.
17 Next, his Honour found that the 27 May statement of claim was, self-evidently, not a document that complied with the 16 October orders. He said that he would not refuse leave because it had not been certified by counsel. His Honour noted that the 27 May statement of claim identified four legally recognisable causes of action: namely, first, contraventions of s 18 of the Australian Consumer Law, in sch 2 of the Competition and Consumer Act 2010 (Cth), in respect of the College allegedly having engaged in misleading and deceptive conduct, secondly, breach of contract, thirdly, injurious falsehood and fourthly, breach of confidence.
18 However, the primary judge held that those pleaded allegations failed to comply with r 16.02 because, first, they were not as brief as the nature of the case permitted, secondly, they failed to state the material facts on which Dr Chandrasekaran relied, thirdly, they were ambiguous and fourthly, they were likely to cause prejudice, embarrassment, or delay in the proceeding. His Honour gave an example of why he had found that the pleading of the misleading and deceptive conduct representations was made in a vexatious or embarrassing way. He said that his criticisms were not mere pedantry, but were based on the lack of specificity in the pleading being such that neither the College nor the Court would be in a position to form any views to the factual issues to be addressed or resolved. As his Honour found at [37]:
Leaving to one side the fact that proposed Statement of Claim has not been certified, the form in which it is expressed has been held to be so fundamentally deficient that leave would not have been granted to file it. Those deficiencies are such as to be insusceptible of amendment. A complete re-draft was called for.
(emphasis in original)
19 The primary judge found that even if the non-payment of costs in itself had not been a sufficient reason for refusing to vary the 16 October orders, the deficiencies in the 27 May statement of claim, in combination with that failure, were.
20 Finally, his Honour refused the application to disqualify himself. He held that Dr Chandrasekaran's submission that he had too readily acceded to the submissions of counsel for the College on 28 April 2020, was not a reason why a fair minded lay observer might reasonably apprehend that his Honour might not have brought an impartial mind to the resolution of any question that he was required to make. The primary judge said that he had acted as he had because, on that occasion, the College's counsel's submissions were sound, and his Honour had arrived at his decision having given Dr Chandrasekaran ample opportunity to put her own case.
21 His Honour also refused an application for disqualification, made orally on 27 May 2020, and found that the fair minded lay observer would understand that Dr Chandrasekaran had been given every opportunity to formulate, and reformulate, her case in a balanced and impartial manner, to the point where the balance might be seen to have been unfairly weighed against the College.