Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists

RARES J: 1 This is an application for an extension of time to seek leave to appeal, and for leave to appeal, in respect of the primary judge's orders made on 22 July 2020. His Honour dismissed two interlocutory applications that the applicant, Dr Sujatha Chandrasekaran, had made on 2 March 2020 and 4 June 2020, respectively, and ordered her to pay the costs of the respondent, the Royal Australian and New Zealand College of Psychiatrists. 2 On 19 February 2020 I refused an application for an extension of time and leave to appeal, which Dr Chandrasekaran had sought against orders that the primary judge had made on 16 October 2019: Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2020] FCA 214. His Honour had ordered (the 16 October orders) that: 1. On or before 28 February 2020, the Applicant is to pay the Respondent's costs of the proceeding to date, either as agreed or assessed. 2. Upon the payment of those costs the subject of Order 1, the Applicant may within 28 days thereafter file an Interlocutory Application seeking leave to file a Statement of Claim certified by Counsel. 3. In the event that no Interlocutory Application is filed in accordance with Order 2 or in the event that leave is not granted, judgment is entered in favour of the Respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth). 3 On 3 December 2019 the College's solicitors served Dr Chandrasekaran with a bill of costs, claiming $55,000. On 6 February 2020, the Registrar issued a certificate of taxation, taxing the costs to which the College was entitled under order 1 of the 16 October orders, at $49,500: see Chandrasekaran [2020] FCA 214 at [14]. Dr Chandrasekaran maintains that she is impecunious and, so, not able to pay those costs. As is apparent, and as I said in my reasons, there was still time for her to apply to his Honour to vary the 16 October orders when I refused her application for leave to appeal. 4 The interlocutory application of 2 March 2020 sought to reinstate the proceeding (the reinstatement application). The interlocutory application of 4 June 2020 sought that the primary judge recuse himself (the recusal application).

The reinstatement and recusal applications 5 The reinstatement application sought to reinstate the proceeding based on the operation of order 3 of the 16 October orders. It was a self-executing order that had dismissed the proceedings, because of Dr Chandrasekaran's defaults in payment of the costs and failure to file any interlocutory application seeking leave to file a statement of claim, certified by counsel. 6 In the event, his Honour granted a number of adjournments to Dr Chandrasekaran, who attempted to obtain legal representation in the meantime. The reinstatement application first came before his Honour on 5 March 2020 and was adjourned to 28 April 2020. As his Honour recorded in his reasons (Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists (No 2) [2020] FCA 1028), Dr Chandrasekaran was unsuccessful in securing the services of lawyers whom she had approached to act for her. She told me that this is still her position today. On 28 April 2020, his Honour indicated that at that stage he was not minded to grant relief to Dr Chandrasekaran, but gave her the choice either to have the reinstatement application dismissed, so that, if she wished, she could then seek leave to appeal, or to have an adjournment so as to enable her to provide a basis upon which the Court should vary the 16 October orders. As his Honour recorded, Dr Chandrasekaran opted for an adjournment, and his Honour granted that up to 27 May 2020. 7 Shortly before the Court was due to sit on the morning of 27 May 2020, Dr Chandrasekaran emailed to his Honour's associate a statement of claim (the 27 May statement of claim) that, according to its front sheet, had been prepared by counsel, but that stated on its second last page: This pleading was prepared by the Applicant and settled by Mr Peter E King of counsel. (emphasis added) 8 Mr King's signature and the date 26 May 2020 appeared underneath that statement. The statement of claim also contained a certificate in which Dr Chandrasekaran certified to the Court that the factual and legal material available to her at present "provides a proper basis for each allegation in the pleading". 9 As the primary judge correctly found, neither Dr Chandrasekaran's certificate, or Mr King's statement of "settling the document", given his participation in its preparation, complied with the requirements of r 16.01 of the Federal Court Rules 2011. 10 The lateness of the provision of the 27 May statement of claim caused the College to seek an adjournment of the hearing that was to have taken place that morning so that it could consider the document and determine its course of action. His Honour adjourned the interlocutory hearing to 4 June 2020. 11 On 4 June 2020 Dr Chandrasekaran filed the recusal application seeking that his Honour recuse himself for apprehended bias and that the proceeding be allocated to a different judge. 12 His Honour heard all of the issues on 4 June 2020 and reserved his decision. Subsequently, both parties provided further written submissions pursuant to his Honour's grant of leave.

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.

This application 22 Dr Chandrasekaran explained that the reason for her nine minute delay in electronically seeking to file her application for leave to appeal, or notice of appeal, was because she had suffered a serious physical injury on 28 July 2020. She provided a doctor's certificate explaining that the injury had made her unable to sit or stand for any length of time, and said that this had affected her ability to prepare the documents in as timely a manner as she would wish. 23 I accept, as did the College, that in light of her unchallenged and reasonable explanation there would be no reason not to extend the time, if I were satisfied that Dr Chandrasekaran had any basis on which leave to appeal ought be granted. I summarised the principles applicable to the assessment of the present application in Chandrasekaran [2020] FCA 214 at [25]-[26]. It is not necessary to summarise my findings on that occasion. 24 Dr Chandrasekaran prepared a draft notice of appeal that consisted of 18 paragraphs, most of which asserted that his Honour made numerous errors of fact in the course of the proceedings below. These included the conclusion that the 27 May statement of claim was, as I would characterise it, an abuse of the process of the Court, because it failed manifestly to comply with the requirements of r 16.02. Dr Chandrasekaran relied on Rozenblit v Vainer (2018) 262 CLR 478 to suggest that she was being shut out from bringing her claim in the Court because of her impecuniosity, and that his Honour erred in not varying the 16 October orders to allow her to proceed. She also contended that his Honour should have recused himself. Dr Chandrasekaran argued that, in many cases, it is often necessary for a statement of claim or pleading to be pleaded and repleaded on numerous occasions, and cited some instances where that had been done. She contended that, in substance, the primary judge sought to have a perfect statement of claim filed, and that his criticisms of the 27 May one were directed simply to the one paragraph that he set out in his reasons. She submitted that the primary judge had ignored the balance of what, she claimed, were clearly articulated, properly pleaded causes of action. She said that his Honour's judgment was biased in favour of the College and that the College effectively had been responsible for all the matters which she now sought to plead. She argued that she should not be shut out of the Court because she could not pay the costs, and that she was entitled to have her claim heard. She contended that the College was a sufficiently wealthy organisation to be able to absorb any relevant costs without any injustice to it, if her claim were allowed to proceed.

Consideration 25 In my opinion, there is no sufficient reason to doubt the correctness of the orders that his Honour made or the reasons he gave on 22 July 2020 whatever be the correct characterisation of Dr Chandrasekaran's failure to pay costs in accordance with the 16 October orders. His Honour gave Dr Chandrasekaran ample opportunity over the succeeding three months, after the apparently self-executing termination of the proceeding on 28 February 2020, to formulate a statement of claim and to identify a cause of action in a way that complied with the Rules. 26 The instances of the deficiencies in the pleading of the cause of action for misleading and deceptive conduct in the 27 May statement of claim, which his Honour highlighted, were, in effect, rolled up allegations that multiple people had made multiple representations on multiple unidentified occasions, to multiple unidentified persons, in ways that were not articulated in a clear or recognisable way. 27 His Honour found, and I agree, that the 27 May statement of claim that counsel "settled" was fundamentally deficient because, amongst other reasons, it was embarrassing and ambiguous. That resulted in his Honour being confronted with a situation in which, accepting that Dr Chandrasekaran was impecunious, whatever cause of action she wished to articulate had not been properly formulated, after many attempts, in a way that it could be brought to trial. That meant that the proceeding was an abuse of process. It was well within his Honour's power to control the way in which the proceeding was conducted, including, as occurred, by refusing to vary the 16 October orders. 28 It would create injustice to the College to continue to subject it to having to deal with vague, unspecified and embarrassing allegations that were, as his Honour found, likely to cause prejudice, embarrassment and delay in the proceeding. That was because Dr Chandrasekaran had not yet identified the material facts on which she relied. 29 While no doubt Dr Chandrasekaran had no intention to abuse the process of the Court, that is the legal effect of the way in which she and Mr King pleaded the 27 May statement of claim. The pleading on its face was an abuse of process, as the primary judge found. That is why, in my opinion, there is insufficient reason to doubt the correctness of his Honour's refusal to vary the 16 October orders: see Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29], per McHugh, Kirby and Callinan JJ. I am also not satisfied that any substantial injustice will result from a refusal of a grant of leave. Dr Chandrasekaran can commence a fresh proceeding, if and when she can plead an intelligible cause of action. That is because no rights have been fully and finally determined by his Honour's summary dismissal of the proceeding: see Stuart v Rabobank Australia Ltd [2019] FCA 343 at [15]-[17], and [23], Re Luck (2003) 203 ALR 1 at 4 [9]-[10] per McHugh ACJ, Gummow and Heydon JJ.

Conclusion 30 For these reasons, I am of opinion that the application for extension of time to seek leave to appeal, and for leave to appeal, must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.