[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]
JUDGMENT
MEAGHER JA: Dr Chandrasekaran is the appellant in an appeal from a judgment of Button J dismissing her claims against the first respondent, Western Sydney Local Health District, and the second respondent, Charterhouse Medical Pty Ltd (Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920). That appeal is fixed for hearing on 30 and 31 October 2023.
By her further amended motion filed on 28 March 2023, the appellant sought "leave to admit new and fresh evidence" in the appeal. The hearing of that part of that motion has been deferred to the hearing of the appeal.
There are three fresh applications before this Court. Each of the respondents seeks to set aside two notices to produce filed and served by the appellant. Each also seeks an order that the appellant be restrained from serving further notices to produce in these proceedings without the prior leave of the Court.
Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219 | Case summary | Zoe
The third application is that of the appellant which as filed was for an order that the respondents comply with four notices to produce. In the hearing of this application, counsel for the appellant, Mr King, sought leave to issue those notices which, subject to minor amendments, were attached to his written submissions dated 7 September 2023. Those notices are marked SC1, SC2, SC3 and SC4.
Notices to produce SC1 and SC2 are addressed to the first respondent and seek the production of email communications of Dr Padhi (SC1) and Ms Joseph (SC2). The remaining notices, SC3 and SC4, are addressed to the second respondent and seek the production of email communications of Mr Harvey (SC3) and Mr Madigan (SC4).
I have previously dealt with similar issues to those raised in the present applications with respect to earlier subpoenas and notices to produce issued in the appeal proceeding at the request of or served by the appellant (Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 106). It is relevant that there were also applications made by the respondents as defendants to set aside notices to produce served by the appellant as plaintiff in the underlying proceedings (Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567; Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 1231).
In addition, in the underlying proceedings on 10 September 2019 the second respondent produced, in response to a notice to produce issued on 28 August 2019, emails received or sent by it or its staff referring to the appellant as "cray, google car lady or any combination of these words". An email of 2 July 2018 and the appellant's reply were produced and it was confirmed that there were no other documents answering that description.
[3]
The first respondent's application in relation to notices SC1 and SC2
Each of these notices has six paragraphs which are in almost identical terms.
Paragraphs 1 to 4 of SC1 and SC2 seek the production of emails located in the email accounts of Dr Padhi and Ms Joseph respectively, which are relevantly described as follows:
(1) emails received by Dr Padhi (or by Ms Joseph) from the appellant and sent to other persons during the period between 27 December 2017 to 15 January 2018;
(2) emails sent to or received from other persons by Dr Padhi (or by Ms Joseph) concerning the appellant during the period between 27 December 2017 to 15 January 2018;
(3) emails received by Dr Padhi (or by Ms Joseph) from the appellant and sent to other persons during the period between 5 December 2017 to 26 December 2017; and
(4) emails sent to or received from other persons by Dr Padhi (or by Ms Joseph) concerning the appellant during the period between 5 December 2017 to 26 December 2017.
In the underlying proceedings the appellant made four claims against the first respondent.
They were for breach of contract, said to be constituted by her unfair dismissal; misleading or deceptive conduct as to the nature of the work the appellant was to undertake at Redbank House; injurious falsehood by reason of the publication by Dr Padhi of false statements to the Health Care Complaints Commission; and breach of confidence by Dr Padhi on the basis that he received confidential information about the appellant from a third person or persons and communicated that information to other persons.
On their face, paras 1 to 4 of SC1 and SC2 could be directed to the appellant's claims for breach of confidence and perhaps injurious falsehood, each involving at some point a communication from Dr Padhi to someone else.
The appellant addresses her "legitimate forensic purposes" for issuing the four notices to produce in her affidavit of 26 June 2023.
In para 4 of that affidavit, the appellant identifies those "legitimate forensic purposes" as including the following.
First, "To demonstrate that there were breaches of confidence that took place necessitating the access to my digital communications. To demonstrate that Dr Padhi obtained information contained in my digital communications provided to him by persons accessing my digital information, referred to as the 3rd respondent, and then repeated my personal information back to me whilst working for the first respondent to harass and persecute intentionally."
Secondly, "Access to my digital communications made the deceptive and misleading conduct and injurious falsehoods possible, as I say the 3rd respondent directed the respondents to do conduct themselves in such a way which would otherwise have not been possible".
Thirdly, to:
… identify the 3rd respondent who can then be applied with an injunction which is sought in the statement of claim and which was pressed in the court below and remains pressed. It is one of many aspects or subjects in the prosecution of the appeal. This is one but not the only or primary purpose of the issuance of the notices to produce, where the 3rd respondent cannot be identified without some form of discovery as stated in the statement of claim. The hacking of my accounts continues as recently as 20 6 23.
Paragraphs 5 and 6 of SC1 and SC2 seek the production of emails located in the email accounts of Dr Padhi and Ms Joseph respectively, which are relevantly described as follows:
(5) emails sent by Dr Padhi (or by Ms Joseph) to other persons of or concerning the appellant's medical registration and/or her practicing as a medical practitioner to medical authorities including the Australian Health Practitioner Regulation Authority, the Health Care Complaints Commission, the Medical Council of New South Wales and the General Medical Council of the United Kingdom; and
(6) emails sent by Dr Padhi (or by Ms Joseph) to other persons after receiving "these" from the appellant regarding her medical registration and/or her practicing as a medical practitioner, including to the medical authorities described above in para 5.
In the underlying proceedings the claims for breach of confidence and injurious falsehood were directed to conduct of Dr Padhi and not of Ms Joseph. In relation to the latter claim, it was alleged that Dr Padhi in his complaints about the appellant to the Health Care Complaints Commission (notified to that Commission from the Australian Health Practitioner Regulation Agency (J[16])) made statements that were false and occasioned damage to the appellant (J[31]). That claim was made on two factual bases. They were the "creation and promulgation" of documents within the first respondent by Dr Padhi that spoke adversely of the appellant's professional performance (and in particular a risk assessment of her prepared by Dr Padhi and a colleague); and notifications made by Dr Padhi to "at least one professional body" (J[86]).
The first respondent submits that there are three reasons why these notices to produce should be set aside. In my view, each of those reasons is made out and sufficient to justify the setting aside of notices to produce SC1 and SC2.
First, none of the paragraphs of SC1 or SC2 requires the production of a "specified document". Rather, each paragraph calls for the production of a class of identifiable documents as distinct from specific identified documents. The word "specified" in r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW) is used in the sense of "described" or "identified" and requires that the document to be produced be 'cut out' from the universe of documents by some description or specification. See per Barrett J in Patonga Beach Holdings Pty Ltd v Lyon [2009] NSWSC 869 at [12]-[13]. Earlier, in Norris v Kandiah [2007] NSWSC 1296 at [4], Brereton J said that the requirement for specificity "connotes something that is identified, and not merely identifiable".
Secondly, for the required production to have a legitimate forensic purpose, the documents must be relevant to some fact in issue in the appeal. That requirement is not satisfied by a response that the emails are relevant to each of the appellant's claims as made before the primary judge. No further attempt was made by the appellant in her oral or written submissions to identify the particular issue or issues to which specific documents falling within one or other of the paragraphs of SC1 and SC2 might be relevant. Those issues are not apparent from the terms of each of the paragraphs of SC1 and SC2 when understood in the context of the claims made in the underlying proceeding. Furthermore, no attempt is made to explain how any of the documents said to be within the classes of documents sought might be admissible in an application under Supreme Court Act 1970 (NSW), s 75A in circumstances where subpoenas and notices to produce were directed to the same classes of documents at first instance.
Thirdly, it is submitted, principally by reference to the appellant's affidavit and her written submissions in the earlier application before me, that she brings the present application for the purpose not of prosecuting her existing appeal but rather of pursuing interlocutory and other relief against the person or persons described as the 3rd respondent. That is not a legitimate purpose for issuing notices to produce in the appeal.
Mr King, who appeared for the appellant, submitted that I should disregard the references in the appellant's affidavit to the 3rd respondent. The problem with this submission is that the notices to produce were drafted by the appellant and with the purpose of pursuing a claim against the so-called 3rd respondent. Each of the paragraphs of SC1 and SC2 seeks the production of emails that have been sent by Dr Padhi or Ms Joseph to other persons. The obvious purpose for seeking these documents is that described in the appellant's affidavit, namely, to identify the person or persons described as the 3rd respondent.
Finally, the first respondent seeks an order that the appellant be restrained from serving further notices to produce in the appeal proceedings without prior leave of the Court. Such an order may be made where the "use of the court's procedures would bring the administration of justice into disrepute", as is the case where the compulsory processes of the Court are being used for an improper purpose (O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315 at [105]). The notices to produce which were the subject of the earlier application and those the subject of this application do not comply with the Rules, seek the production of documents which are not shown to be relevant to any issue in the appeal and are directed to an ulterior purpose, namely, the identification and prosecution of the so-called 3rd respondent. In circumstances where the issuance of those notices to produce has occupied much of the time and resources of the respondent parties and the Court, and where there is a likelihood that the appellant will continue to seek to issue and rely on such notices, it is necessary that an order be made that the appellant be restrained from serving such notices without the prior leave of the Court.
[4]
The second respondent's application in relation to notices SC3 and SC4
Paragraphs 1 to 3 of SC3 seek the production of the following documents from Mr Harvey's email account:
(1) emails received from the appellant and forwarded to third persons during the period between 20 November 2017 to 2 July 2018;
(2) emails dated between 20 November 2017 to 2 July 2018 referring to the appellant as the 'cray google car lady'; and
(3) emails "of or concerning the appellant" received from or sent to third persons between 20 November 2017 to 2 July 2018.
Paragraphs 1 to 3 of SC4 seek the production of the following documents from Mr Madigan's email account:
(1) emails dated between 20 November 2017 to 2 July 2018 referring to the appellant as the 'cray google car lady';
(2) emails concerning the appellant's medical registration and/or her practicing as a medical practitioner sent to medical authorities, including those medical authorities referred to in para 5 of SC1 and SC2; and
(3) emails received from the appellant concerning the subjects in para 2 of SC4 and sent to medical authorities, including those medical authorities referred to in para 5 of SC1 and SC2.
In the underlying proceedings the appellant made two claims against the second respondent.
They were for misleading or deceptive conduct, on the basis that it had misled her into thinking she would be working with adults rather than children and adolescents; and for injurious falsehoods constituted by Mr Pereira's statement to Mr Harvey on or about 15 January 2018 (J[14]) and an email sent by Mr Harvey to the appellant and Ms Greenfield on 2 July 2018 (J[20]).
Addressing SC3, neither of paras 1 and 3 requires the production of a specified document. Accordingly, they do not comply with r 34.1. Paragraph 2 also requires the production of a class of documents, namely, those which refer to the appellant as the "cray google car lady" and were brought into existence between 20 November 2017 to 2 July 2018. The request for documents answering that description for any period before 2 July 2018 cannot be directed to any issue in the underlying proceedings or in the appeal. The only allegation relating to the making of such a statement is the publication of the email sent by Mr Harvey on 2 July 2018. That email and any response to it were the subject of a notice to produce in the underlying proceedings and were answered (see [7] above).
Addressing SC4, the same observations as are made above in relation to para 2 of SC3 may be made in relation to para 1 of SC4. As to paras 2 and 3 of SC4, they do not comply with r 34.1 and are not addressed to any apparent issue between the appellant and the second respondent, at least as the case was run at first instance.
Finally, paras 1 and 3 of SC3 and paras 2 and 3 of SC4 seek the production of emails from Mr Harvey and Mr Madigan respectively in circumstances where those emails have no apparent relevance to any issue in the appeal. In doing so they reveal a purpose collateral to the legitimate prosecution of the appeal, namely, the identification of the person or persons (the so-called 3rd respondent) who the appellant alleges has or have been in communication with both respondents.
For these reasons notices to produce SC3 and SC4 should be set aside.
For the same reasons as are given in relation to the serving of the notices to produce on the first respondent (see [25] above), there should be an order restraining the appellant from serving any further notice to produce in the appeal proceedings against the second respondent without the leave of the Court.
[5]
Conclusion
In relation to the first respondent's notice of motion filed on 10 July 2023, the following orders should be made:
1. Order that the two notices to produce identified as SC1 and SC2 and any earlier versions of those notices to produce which have been served by the appellant on the first respondent be set aside.
2. Order that the appellant be restrained from serving in these proceedings any further notice to produce addressed to the first respondent without the prior leave of the Court.
3. Order that the appellant pay the first respondent's costs of this motion.
In relation to the second respondent's notice of motion dated 11 July 2023, the following orders should be made:
1. Order that the two notices to produce identified as SC3 and SC4 and any earlier versions of those notices to produce which have been served by the appellant on the second respondent be set aside.
2. Order that the appellant be restrained from serving in these proceedings any further notice to produce addressed to the second respondent without the prior leave of the Court.
3. Order that the appellant pay the second respondent's costs of this motion.
As to the appellant's notice of motion filed 26 June 2023, and moved on by Mr King seeking in addition leave to serve notices to produce substantially in the form of SC1 to SC4 (tcpt 11/9/23 pp 45-46), the following orders are made:
1. Dismiss that motion and application.
2. Order that the appellant pay the first and second respondents' costs of this motion.
[6]
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: 12 September 2023