[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Ex tempore JUDGMENT
MEAGHER JA: The applicant, Ms Chandrasekaran, is the appellant in an appeal listed for hearing on 14 and 15 September 2023. It is an appeal from the judgment of Button J in Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920.
The application relevantly is for the issue of four subpoenas to produce addressed to Ms Alexandra Shields, a partner of Norton Rose Fulbright; Mr Dean Madigan, an employee of the second respondent, Charterhouse Medical Pty Ltd; Ms Kira Kless, an employee in the Crown Solicitor's Office; and Dr Ashwini Padhi, the clinical director of Redbank House, the medical facility in which the appellant worked as a visiting medical officer during a period from late December 2017 until 15 January 2018.
Each of the subpoenas seeks access to computers to inspect both the "device" and an email account, and to view an email or emails sent by the appellant to the person to whom the subpoena is addressed. In the case of Ms Shields, the appellant's emails were sent between 6 October 2022 and 9 March 2023; in the case of Mr Madigan, on 7 September 2022; in the case of Dr Padhi, on 29 and 30 September 2022; and in the case of Ms Kless, between 24 July 2019 and 12 October 2022.
Of those four persons, only Dr Padhi was involved in any of the conduct which was the subject of the underlying proceedings. The others have come to the proceedings either as legal representatives or as a person involved, in the case of Mr Madigan, in the management or administration of the defence of the underlying proceedings for Charterhouse Medical.
The question for this Court, in relation to each subpoena, is whether it is sought to be issued for a legitimate forensic purpose. A subpoena will have a legitimate forensic purpose if the documents to be produced are apparently relevant to the issues in the proceeding or will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that it will do so. This directs attention to the issues in the underlying proceedings and appeal and the question whether the material sought, to the extent that it consists of documents, answers that description.
The proceedings against the Local Health District involved four claims. As dealt with by the primary judge, they were for breach of contract, for misleading or deceptive conduct, for injurious falsehood, and for breach of confidence. In relation to Charterhouse Medical, there were two causes of action relied on; the first for misleading or deceptive conduct in respect of the employment or engagement of the appellant and the second for injurious falsehood in relation to two matters. The first related to an asserted statement of a Mr Pereira made on 15 January 2018; the second to an email sent by a Mr Harvey on 2 July 2018.
One must then consider the subpoenas. With one exception, which is Dr Padhi, they are not addressed to anybody involved in the underlying events, and in the case of each of those persons with the exception of Ms Kless, the relevant email and underlying investigation is directed to material sent in a period between September 2022 and March 2023. These emails have no apparent relevance to any issue in the underlying proceedings which is the subject of the appeal. With respect to Ms Kless, although the first email referred to is dated 24 July 2019, she was by that time a legal officer of the Crown who had no apparent connection with the happening of the underlying events. In relation to Dr Padhi, the emails relate to a period in September 2022.
In support of this material having some apparent relevance, the appellant refers to her breach of confidence claim made against the Local Health District and maintains that, notwithstanding the confined subject matter of the material which was relevant before the primary judge (see his Honour's judgment at [41]), the access of Dr Padhi and others to her confidential online communications was made possible, or assisted, by other unidentified or unknown persons whom the appellant describes as the "third respondents" in the proceedings before the primary judge and in the appeal.
In her written submissions in chief, the appellant describes as one of the purposes, if not the purpose, for the issue of these subpoenas being to identify that person or those persons who were accessing her accounts and digital information to enable her to obtain a permanent injunction preventing them from continuing to do so; that being the remedy which she has sought since the inception of her claim. I consider and find that to be the primary purpose for which these subpoenas are sought to be issued. In her written submissions in reply, the appellant acknowledges that the relevant period in the underlying proceedings was her employment period from 27 December 2017 to 15 January 2018, which involved "a breach of contract, breach of confidence, deceptive and misleading conduct, and other causes of action as pleaded".
The appellant says that the subpoenas are directed to communications "relating to that period, if not during that period". On their face, the subpoenas do not relate to communications during this period or to issues about conduct in that period. However, from the appellant's perspective, they are said to relate to this period because they identify the reason that Dr Padhi was able to have access to confidential material concerning her.
For those reasons, I am not satisfied that these subpoenas are sought to be issued for a legitimate purpose. They are directed to a purpose other than the prosecution of the appeal. That purpose might be described as being to identify the so-called "third respondents" for the purpose of taking proceedings to restrain them from doing what the appellant says they have already done and continue to do.
There is another reason why leave to issue the subpoenas should not be granted. They extend not only to the production of documents but also seek access to, and to inspect, computer devices and email accounts. There are at least two difficulties with this. The first is that the persons to whom the subpoenas are addressed are not necessarily the owners or controllers of those email accounts and devices. There are others who have interests in those devices who are not required to comply with the proposed subpoenas, even if they could compel such access and inspection. The second is that the material sought to be inspected, in the case of the lawyers involved, contains information that is likely to be confidential and privileged.
What I have said so far has addressed the subpoenas. It applies equally to the two notices to produce addressed to Dr Padhi, which are the subject of the Local Health District's motion. Those notices seek the production of the same documents and access to the same email accounts for the purpose of inspection as do the subpoenas.
It follows, addressing the appellant's motion, that I reject the application for leave to issue subpoenas addressed to Ms Kless, Ms Shields, Dr Padhi, and Mr Madigan. I also set aside the two notices to produce which are the subject of the Local Health District's motion.
The appellant's motion otherwise seeks leave to adduce further evidence and leave to admit new and fresh evidence in the appeal. Those applications will be dealt with on the hearing of the appeal. The remaining relief sought by this motion is described as, "an expeditious hearing of this motion and of the appeal", and a permanent injunction which, in its broad terms, is directed to what I have identified as the improper purpose for the issue of the subpoenas.
The motion has been heard expeditiously, and decided, and the appeal will continue to be heard in late September. I decline to make any restraining order, permanent or interlocutory. That question, if it was raised before the primary judge and not dealt with, could arise in the appeal. If it was raised before the primary judge and not pressed, it could not be subject to appeal. This Court, in its appellate jurisdiction, cannot grant interlocutory or permanent injunctions in relation to matters which are not the subject of an appeal.
HIS HONOUR: Ms Chandrasekaran, is there any reason why you should not pay the costs of the motion?
[DISCUSSION re costs of the motions]
HIS HONOUR: All right, thank you. I will make an order that Ms Chandrasekaran pay the costs of the application today, including the costs of the Local Health District's motion.
[3]
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: 19 May 2023