Chandrasekaran v Western Sydney Local Health District

Judgment

1. MACFARLAN JA: This judgment is concerned with the respondents' objections to the competency of Dr Chandrasekaran's purported appeal against a judgment of Button J of 29 July 2021 (Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920).
2. Dr Chandrasekaran is a qualified medical practitioner and specialist psychiatrist who commenced duties as a visiting medical officer ("VMO") with the first respondent, the Western Sydney Local Health District, in late December 2017. She was appointed to work as a locum until 2 March 2018. Her position had been arranged by the second respondent, Charterhouse Medical Pty Limited, an international recruitment company whose business included the recruitment of medical professionals.
3. Although Dr Chandrasekaran's speciality was adult psychiatry, she commenced at an inpatient facility of the first respondent that cared for patients who were children and adolescents. It was called Redbank House and its clinical director was Dr Padhi. Conversations with Dr Chandrasekaran soon after her appointment led Dr Padhi to the view that she was exhibiting symptoms consistent with paranoia to be concerned about her employment to a position which involved caring for troubled children and adolescents. As a result, the first respondent terminated Dr Chandrasekaran's appointment and made complaints to relevant professional bodies about her. Dr Chandrasekaran has at all times denied that Dr Padhi had any basis for his views and concern.
4. Dr Padhi also told Mr Harvey of the second respondent of his concerns. Mr Harvey passed them on to his superior at the second respondent, Mr Pereira, who instructed Mr Harvey that the second respondent should no longer arrange work for Dr Chandrasekaran. Further, two months later, Mr Harvey sent an email to Ms Greenfield, a fellow employee of the second respondent, describing Dr Chandrasekaran in offensive terms. By mistake he made Dr Chandrasekaran the primary addressee and "cc'ed" Ms Greenfield into the email.
5. In October 2018 the Medical Council of NSW suspended Dr Chandrasekaran's appointment as a specialist, and her ability to practise medicine. She does not appear to have practised medicine subsequently.
6. In 2018, Dr Chandrasekaran commenced proceedings against the respondents in the Common Law Division of the Supreme Court, claiming damages and injunctive relief. She propounded a number of causes of action including breach of contract, misleading and deceptive conduct under the Australian Consumer Law, defamation, injurious falsehood and breach of confidence.
7. Although she was unrepresented at various times at first instance and in this Court, at the hearing of her proceedings before Button J she was represented by counsel. The hearing occupied some 19 days.
8. Button J rejected all of the claims that were made against the respondents. Amongst those against the first respondent was one of injurious falsehood, involving an allegation that the first respondent, through Dr Padhi, had made malicious and false statements about Dr Chandrasekaran to relevant professional bodies.
9. In his judgment, his Honour made some contingent findings as to the damages that he would have awarded if Dr Chandrasekaran had been successful in establishing breach of contract but he did not, at least in terms, identify the damages that he would have awarded if the injurious falsehood claim had been successful. Relevant to that issue however was a statement that his Honour made in another context that "all that has gone wrong in [Dr Chandrasekaran's] life" was caused by "the complaints made by Dr Padhi to various professional and regulatory bodies, and upheld by them at least to the extent of [Dr Chandrasekaran] being suspended from practice".
10. As to the second respondent, his Honour noted that the injurious falsehood claim was based first on the alleged statement of Mr Pereira to Mr Harvey that the second respondent should no longer arrange work for Dr Chandrasekaran and, secondly, on the internal email referred to at [4] above.
11. Ultimately, so far as contingent damages findings were concerned, his Honour concluded that Dr Chandrasekaran had not established that the actions of the respondents had caused her any recoverable loss.
12. Dr Chandrasekaran's Notice of Appeal was not filed within time but before this Court the respondents accepted that in light of Dr Chandrasekaran's explanations for the lapses of time involved, the only issue to be determined on the objections to competency is whether the threshold stated in s 101(2)(r)(i) of the Supreme Court Act 1970 (NSW) for Dr Chandrasekaran to have a right of appeal is satisfied. The effect of that provision is that an appeal does not lie as of right, as distinct from following a grant of leave to appeal, even from a final judgment in proceedings in the Supreme Court, unless the appeal "involves a matter at issue amounting to or of the value of $100,000 or more".
13. The case law in relation to s 101(2)(r)(i) was reviewed by Bell P (as his Honour then was) (with the concurrence of Basten JA, as his Honour then was, and Leeming JA) in Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123 at 129-31; [2020] NSWCA 48 at [15]-[19] (see also Kassam v Hazzard (2021) 106 NSWLR 520 at 528-9; [2021] NSWCA 299 at [21]). His Honour at [18] approved the propositions stated in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80] that the phrase "at issue" "must be construed as meaning truly at issue or, inversely, not unrealistically at issue" and must involve "a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000". It is thus not necessary for the conclusion that rights of appeal exist, for this Court to be satisfied that on the balance of probabilities Dr Chandrasekaran would improve her financial position by $100,000 or more if she succeeded on the appeal. Instead, the Court must be satisfied that there is a "realistic prospect" that she would.
14. I have concluded that this requirement is satisfied, at least so far as the appeal relating to the first respondent is concerned. In this Court, as below, the first respondent emphasised the paucity of evidence to support the quantum of Dr Chandrasekaran's claim and the lack of utility, for the purposes of proving it, in a schedule of damages upon which Dr Chandrasekaran relied at first instance to propound a claim for several million dollars. There appears to be substance in these points but due to the limited nature of the proceedings before this Court, it is possessed of only a small proportion of the evidence before the primary judge and is in no position to form a final view about the quantum of damages to which Dr Chandrasekaran would be entitled if she succeeded on liability. Moreover, the primary judge's contingent findings on damages were, as pointed out above, only of a limited nature. In these circumstances, it seems inevitable that there would have to be a remission to the Common Law Division for damages to be assessed if the appeal succeeded. It is possible that Dr Chandrasekaran would be permitted to adduce further evidence on such remittal.
15. As also noted in [9] above, the primary judge did however attribute Dr Chandrasekaran's bleak employment position to the complaints made by Dr Padhi on behalf of the first respondent to relevant disciplinary authorities and part of Dr Chandrasekaran's case (on which she failed) was that those complaints by the first respondent contained false or misleading statements. When account is taken of the principle that when faced with a deficiency of evidence on the quantum of damages a Court must nevertheless do the best it can to assess a plaintiff's loss (see for example Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64 at 83; [1991] HCA 54) and the fact that (whatever the cause may be) Dr Chandrasekaran's career has been destroyed, or at least significantly impaired, it is apparent that she has a realistic prospect of obtaining damages in excess of $100,000 from the first respondent if she is successful on liability on the appeal. The first respondent's objection to the competency of Dr Chandrasekaran's appeal must therefore be dismissed.
16. The position in relation to the second respondent is less clear but in my view the same conclusion is nevertheless applicable. True it is that the communications the subject of Dr Chandrasekaran's claim against the second respondent did not extend to anyone outside the company (other than Dr Chandrasekaran herself). However, the first basis of Dr Chandrasekaran's injurious falsehood claim related to Mr Pereira's statement to Mr Harvey that the second respondent should no longer arrange work for Dr Chandrasekaran (see [10] above) which was in turn based on Mr Harvey's critical, and allegedly false and misleading, comments to Mr Pereira about Dr Chandrasekaran. If the assumption is made (as it must be for the purposes of considering the competency of the appeal) that Dr Chandrasekaran will succeed on her injurious falsehood claim, it is not unrealistic to envision Dr Chandrasekaran procuring a finding that the presumed injurious falsehood communicated within the second respondent's business resulted in Dr Chandrasekaran losing professional work of a value exceeding $100,000. This is not to say that there will not be considerable issues for Dr Chandrasekaran to overcome if she is to achieve this result, for example, whether Mr Harvey was acting as a mere conduit of information supplied by Dr Padhi. As in the case of the claim against the first respondent, the absence of any precise quantum evidence would not necessarily be a barrier to the result being achieved.
17. In this Court, the second respondent contended that there were legal principles that would preclude such a recovery (referring for example to Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559 at 572; [2008] NSWCA 217 at [51]) but I do not consider that the position is so clear that Dr Chandrasekaran's position in this respect ought to be regarded as virtually hopeless, that is, without her having any realistic prospect. Accordingly, the second respondent's objection to the competency of the appeal in relation to it should also be dismissed.
18. As Dr Chandrasekaran therefore has a right of appeal in relation to her claims against both respondents, her application for leave to appeal is unnecessary and need not be addressed. Indeed, as the merits, or lack of merits, of her appeal will arise for consideration at the hearing of the appeal, it is better that this Court as presently constituted not express a view on these questions in the absence of a necessity to do so.
19. I note that there are notices of motion filed in the appeal (by the respondents for security for costs, and by Dr Chandrasekaran to issue a subpoena and to adduce further evidence on the appeal) which have not been heard and are therefore not addressed in this judgment.
20. For the above reasons, I propose the following orders: 1. Dismiss the respondents' notices of motion objecting to the competency of Dr Chandrasekaran's appeal. 2. Dismiss the application for leave to appeal on the basis that Dr Chandrasekaran does not need leave to appeal. 3. Order that the costs of the motions be Dr Chandrasekaran's costs in the appeal.
21. BRERETON JA: Section 101(2)(r)(i) of the Supreme Court Act 1970 (NSW) has the effect that an appeal lies to the Court of Appeal only by leave in the case of a final judgment or order in proceedings of the Court in a Division involving claims for a debt, damages or possession of property, [1] other than an appeal that involves a matter at issue amounting to or of the value of $100,000 or more. Where, as here, an objection to competency is taken on the ground that the $100,000 threshold for an appeal as of right has not been satisfied, the appellant bears the burden of showing that there is an appeal as of right. The test relates to the value of what is in issue in the appeal, rather than the amount originally claimed of the amount of the judgment. [2] The amount in issue will meet the $100,000 threshold if the appellant satisfies the Court that the appeal (if wholly successful) would improve their position by at least that amount.
22. In this respect, the test has been variously stated as requiring that the amount be "truly at issue or, inversely, not unrealistically at issue" so as to involve "a realistic prospect that the appeal would change the wealth of the appealing party by more than $100,000". [3] However, while it is clear enough that if the threshold amount is only colourably in issue the test will not be satisfied, this does not otherwise involve any evaluation of the appellant's prospects of success, whether on liability or on quantum. In other words, the circumstance that the prospects of the appellant succeeding in improving its position by $100,000 appear remote, even in the extreme, does not deny that such an amount could be genuinely in issue on the appeal. This understanding of the authorities is supported by the considerations that whether an appeal lies as of right does not depend upon any evaluation of its prospects of success, and that where the phrase "not unrealistically at issue" has been used, it has been explained as the corollary of "truly at issue".
23. The provision directs attention to "an appeal", not to a cause of action within an appeal. It therefore contemplates the amount in issue on the appeal as a whole, and not the amount in issue on each ground. A number of cases have held that where there are multiple claims, the threshold may be satisfied by their combined effect. [4] While, where a proposed appeal and a cross-appeal involve distinct issues, their value is separately assessed, [5] that is in the context that a cross-appeal is distinct from an appeal. As it seems to me, if on the appeal as a whole, the threshold is surmounted, the fact that some grounds of appeal taken alone would not do so is beside the point. Likewise, where there are multiple respondents, the circumstance that success against one alone could not surmount the threshold does not matter, if success against all might. The issue is the amount genuinely in issue on the appeal as a whole.
24. In the present case, in the proceedings below, the nature of which are described more fully in the judgment of Macfarlan JA, the appellant relied on a schedule of damages which claimed the remuneration for the balance of her fixed term contract ($69,586); past economic loss ($1,022,376); future economic loss ($1,473,606); out of pocket expenses; general damages for distress, humiliation, and reputational damage; and aggravated damages. While the recoverability of some elements of that claim is highly dubious, to my mind it is clear that in excess of $100,000 is genuinely in dispute. The prospects of her recovering more than $100,000 may depend upon establishing that an employer's liability for damages for wrongful dismissal extends to reputational damage or the lost opportunity of future employment elsewhere, but while that might involve an extension of the law, [6] that does not render the claim other than genuine; nor does the circumstance that establishing such damages might involve seeking to rely on evidence that was not adduced at the trial.
25. In my opinion, therefore, an amount of at least $100,000 is genuinely, if ambitiously, in issue in the appeal. The objection to competency on that ground - which was the only ground pressed, the respondents having conceded that, in the light of the explanation provided by the appellant, the objection that the appeal is out of time would not succeed - fails. The question of leave to appeal therefore does not arise.
26. I agree with the orders proposed by Macfarlan JA.

Endnotes

1. Oertel v Crocker (1947) 75 CLR 261 at 265; [1947] HCA 40 (Latham CJ).
2. Dunn v Ross Lamb Motors [1978] 1 NSWLR 26 at 28 (Reynolds JA; Moffitt P and Hope JA agreeing); Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80]-[81] (Bathurst CJ, Leeming JA and Payne JA).
3. Gillard v Hunter Wire Products Pty Ltd (No 2) [2001] NSWCA 450 at [11] (Priestley JA and Sperling J); Jensen v Ray [2011] NSWCA 247 at [11] (Brereton J; Campbell JA and Sackville JA agreeing); Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80] (Bathurst CJ, Leeming JA and Payne JA); Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [15]-[19] (Bell P (as his Honour then was); Basten and Leeming JJA agreeing); see also Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [21] (Bell P; Meagher JA agreeing).
4. Jensen v Ray [2011] NSWCA 247 at [5]-[15] (Brereton J: combined value of reasonably arguable appeal claims satisfied threshold); Pegela Pty Ltd v Oates [2010] NSWCA 186 at [58]-[63] (Young JA: appellant's claim and failed defence of inseverable cross-claim individually less than threshold but when combined satisfy it); see also NSW Arabian Horse Association Inc v Olympic Co-ordination Authority [2005] NSWCA 210 at [24] (Santow JA; Beazley JA and Bryson JA agreeing: awards of damages of $70,000 and $39,500 in proceedings heard together in lower court combined to satisfy threshold).
5. Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80]-[87] (Bathurst CJ, Leeming JA and Payne JA).
6. Addis v Gramophone Co Ltd [1909] AC 488; Fink v Fink (1946) 74 CLR 127; [1946] HCA 54; Russell v Trustees of the Roman Catholic Church, Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217 at [1], [54]-[57], [63]-[64], [74]; but cf Maw v Jones (1890) 63 LT 347; Dunk v George Waller & Sons Ltd [1970] 2 QB 163; Norton v Williamson (1884) 6 ALT 128; West v Brown (1898) 15 WN (NSW) 112. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022