FEDERAL COURT OF AUSTRALIA

Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2020] FCA 214

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

RARES J:

1    This is an application for an extension of time and leave to appeal from orders made by a judge of the Court on 16 October 2019. His Honour ordered that the applicant, Dr Sujatha Chandrasekaran, pay the costs of the proceeding to date of the respondent, Royal Australian and New Zealand College of Psychiatrists, either as agreed or assessed, but permitted Dr Chandrasekaran, upon payment of those costs, within 28 days thereafter, to file an interlocutory application seeking leave to file a statement of claim certified by counsel (in accordance with r 16.01(c) of the Federal Court Rules 2011), in default of which, or in the event that leave to file the new pleading were not granted, judgment would be entered in favour of the College, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01. His Honour also set aside subpoenas to give evidence and to produce documents addressed to three other persons, and that Dr Chandrasekaran pay their costs.

Background

2    The history of the dispute is complex. At its heart is the difficulty that Dr Chandrasekaran has experienced, or perceives herself to have experienced, in obtaining qualifications to practice as a psychiatrist by going through the College’s training and assessment regimes for admission as a fellow.

3    Dr Chandrasekaran commenced the proceeding before the primary judge by filing an originating application and an affidavit in support.

4    His Honour found that two fundamental difficulties had existed in the proceeding from the outset. These consisted of, first, the absence of any satisfactory specificity of what was the cause, or were causes, of action that Dr Chandrasekaran sought to pursue, and, secondly the absence of any clearly articulated basis on which she sought to attribute liability to the College.

5    His Honour noted that there had been a series of five interlocutory case management hearings since the proceeding began in August 2018, including on 16 and 29 May 2019 when his Honour heard the College’s application for summary dismissal under s 31A or r 26.01.

6    At different times during the course of the proceeding before the primary judge, Dr Chandrasekaran was unrepresented and represented by solicitor and counsel. She was represented by her lawyers at the hearing of the College’s interlocutory application that resulted in the orders the subject of her present application.

7    In her affidavit of 12 December 2019, Dr Chandrasekaran explained that she had misinterpreted the rules. She believed that she could have filed a notice of appeal from his Honour’s decision within 28 days, being on 13 November 2019, only to find that because the decision was interlocutory she had had only 14 days in which to do so, and was out of time. However, that difficulty can be put to one side. The real question is whether there is a sufficiently arguable basis for granting leave to appeal.

The primary judge’s reasons

8    In a detailed judgment, the primary judge explained that it may have been better for him to have ordered Dr Chandrasekaran to file a statement of claim or points of claim rather than adopting the course he had, in effect, of allowing her to put on evidence in support of and to explain her claims. His Honour, exercising his discretion, said that because she had been largely unrepresented he had considered it to be more appropriate to allow her to file her evidence with a view to enabling the College and the Court to ascertain what causes of action emerged from that material. He said that, however, with the benefit of hindsight, such a course had worked an unfairness to the College and, in the end, had not progressed the matter consistently with the overarching purpose of the civil practice and procedure provisions in s 37M of the Act.

9    His Honour recounted the attempts of the College, through its solicitors, to obtain clarity of the claims and how, despite what I accept were Dr Chandrasekaran’s best attempts, that did not occur. In October 2018, the College applied for an order for summary dismissal. The primary judge found that between October 2018 and May 2019, the College had adopted a course whereby Dr Chandrasekaran was given every opportunity to file evidence and develop a case. His Honour noted that he had given repeated guidance to Dr Chandrasekaran during the course of the earlier case management hearings, in preparation for the summary judgment application.

10    On 16 May 2019 the primary judge decided to order that Dr Chandrasekaran file an outline of submissions identifying those matters specified in the order that would provide the clarification that the College had sought originally in its letter seeking particulars on 4 October 2018. These particulars sought identification of, first, precise incidents, and, where possible, relevant dates and locations in which Dr Chandrasekaran alleged acts of abuse, invasion of her privacy, violations of her privacy, breaches of confidence, impersonation, dissemination of injurious falsehoods, cyberstalking, physical stalking, and any other wrongdoing the subject of her proceeding, secondly, the individuals who, she alleged, perpetrated or were responsible for each specified incident, and thirdly the basis on which she alleged that the College was responsible, or otherwise liable, for the conduct of those individuals.

11    The primary judge concluded that:

the manner and form in which the issues sought to be resolved by Ms Chandrasekaran are presently formulated are such that it would be an abuse of process to allow the matter to proceed to hearing – indeed, the lack of precision as to the basis upon which Ms Chandrasekaran presently wishes to present her case enlivens the discretion both to enter summary judgment in favour of the Respondent or to have the proceeding dismissed. Neither the Respondent (nor the Court) should be required to identify out of an ill-structured morass of both relevant and irrelevant factual allegations those “facts” which may be “material” to a possible cause of action and thereafter identify out of Ms Chandrasekaran’s affidavits that evidence which may potentially go to prove those “material facts” and thereafter identify such other evidence as may qualify or contradict her “evidence”. Any such proceeding would be more in the nature of a general or “roving inquiry” into a series of generally expressed allegations made against a myriad of persons other than persons for whose conduct the Respondent may potentially assume liability.

(emphasis added)

12    However, his Honour concluded that, before taking the step of entering summary judgment, Dr Chandrasekaran should have a further opportunity to seek to pursue her claim if she was able to produce a statement of claim certified by counsel, but only after she paid the College’s costs to date.

13    His Honour explained in his reasons, by reference to some but not all of the material before him, as one would expect, examples of how Dr Chandrasekaran failed to identify with particularity what she was alleging against the College for which it could be seen to have legal responsibility.

14    On 3 December 2019 the College’s solicitors served Dr Chandrasekaran with a bill of costs claiming over $55,000. On 6 February 2020 the Registrar issued a certificate of taxation taxing those costs at $49,500.

This application

15    The draft notice of appeal claims that his Honour erred because he should have found that:

    psychiatrists whom Dr Chandrasekaran had named in the passages that his Honour quoted in his reasons from her submissions were agents of the College by reason of which it was vicariously liable for their conduct the subject of her claims for relief;

    the College and the Court had the opportunity, if not the obligation, to cause or direct her to file a statement of claim; and

    each of the persons whose subpoenas the primary judge set aside were not entitled to an order for costs.

16    I note that the three subpoenaed individuals were not respondents to the draft notice of appeal or this application.

17    Dr Chandrasekaran argued that, first, his Honour’s order for payment of the College’s costs, prior to her being able to file any interlocutory application seeking leave to file a statement of claim, be set aside and that any costs be payable only at the conclusion of the proceeding, and secondly, she be granted leave to file a statement of claim before the costs of the interlocutory application were paid.

Dr Chandrasekaran’s submissions

18    At the commencement of the hearing today, counsel who had appeared on behalf of Dr Chandrasekaran below and who, he and she informed me, was briefed to appear on 4 March 2020 before Wigney J in a case in which Dr Chandrasekaran is suing the Commonwealth in which, she says, raises similar or related allegations as are made in the proceeding before the primary judge, asked for an adjournment. Counsel sought the adjournment now so that he could be instructed by the same solicitor as was on the record in the proceeding before Wigney J, and said that that step would not happen until next week. When I enquired whether counsel was able to appear today as an amicus curiae, Dr Chandrasekaran said that she did not wish that to happen and wished to represent herself, whereupon counsel withdrew.

19    At times during the hearing Dr Chandrasekaran became distressed and I adjourned twice for a period to enable her to recover so that she could resume her submissions when she was able better to represent herself.

20    Dr Chandrasekaran argued that the primary judge failed to address her claims, made under the Australian Consumer Law in the Second Schedule to the Competition and Consumer Act 2010 (Cth), that the College had engaged in conduct, in trade or commerce, that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law. She relied in particular on s 139B of the Competition and Consumer Act that deemed any conduct engaged in on behalf of a body corporate by an agent of it, within the scope of the actual or apparent authority of the agent, to be taken, for the purposes of the Australian Consumer Law, to have been engaged in also by the body corporate. She argued that the College had the role of providing education services to persons, such as herself, so that they could qualify for admission to fellowship of the College as psychiatrists, that it charged fees, and appointed psychiatrists as persons responsible for supervising or deciding whether a candidate had attained his or her requisite level of proficiency. She contended that those psychiatrists, who were not its employees were either self-employed or in the employ of other Government bodies. She contended that those circumstances meant that those doctors were relevantly agents of the College for the purposes of the Australian Consumer Law and her allegations against the College.

21    Next, Dr Chandrasekaran said in her affidavit of 15 January 2020:

I have no intention or desire to be controversial but I have made references to a conspiracy by Defence and/or the Respondent and the Federal Court (or the inner machinations of the Court) by way of example in the Affidavit filed on 24 May 2019 on page 14 at paragraph 52, where the harassment I describe is intended to appear as a coincidence. I hope that this allegation I make is incorrect, however it may not be and access to evidence to prove whether this event was or was not harassment in conspiracy, has been denied to me as the first Notice to Produce served to Respondent has been set aside.

22    Dr Chandrasekaran asserted in her written submission:

We allege a serious prejudicial bias which favours the Respondent, and that the matter was allowed to extend over months to now years so as to set the Appellant up to be unable to afford paying costs, representation and in reaching a Judgement that would only favour the Respondent….

The bias against the Appellant, both Apprehended and Actual, permeates the Judgement. She is referred to as Ms rather than Dr, the material chosen for publication is ridden with embarrassing typographical and grammatical errors which the Appellant apologised for in an email in advance, which were not intended for publication, but serve to portray the Appellant as psychiatrically compromised and incompetent, the Respondent’s very objectives. Selective aspects of her submissions are referred to only, which is not dissimilar to the efforts by the Respondent’s agents such as Dr Rosalie Wilcox and in the decision of the Medical Council of NSW, consistent in pattern of the harassment and undermining of her, incurring delay and costs, complementing the Respondent’s objectives to leave the Appellant financially destitute so she simply can’t afford to litigate, in favour of the Respondent. The denial of evidence and the condoning of unconscionable conduct is notable where summary judgement must be denied in the face of conduct which includes fraud, including fraud to her identity by the Respondent, from which other causes of action have arisen. No attempt has ever been made by the Respondent to provide evidence that contradicts the Appellant’s such that her evidence is unchallenged. The reasons for an extension of time are discussed in the Appellant’s Affidavit.

23    She also sought that the proceeding before the primary judge and this application be transferred to be heard by Wigney J with her other proceeding.

24    Dr Chandrasekaran told me that she is in financial difficulties. However, there was no evidence before his Honour of that circumstance. She handed up today a document from her bank suggesting that certain steps needed to be taken by a particular time, but there was in it no other information as to her financial position and resources before me, other than her assertion that it would be difficult, if not impossible, to pay the costs now taxed.

Consideration

25    An application for an extension of time and leave to appeal challenges a respondent’s vested right to obtain the benefit of the judgment in respect of which the appeal or leave to appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] and see also at 539-543 [66] per Kirby J. The court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:

We often like to know the outline of a case. If it appears to be a case which is strong on the merits and which ought to be heard in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits. We do like to know something about the case before deciding whether or not to extend the time.

26    The principles that govern the grant of leave to appeal are well established, as McHugh, Kirby and Callinan JJ said in Bienstein v Bientstein (2003) 195 ALR 225 at 231 [29], namely:

An applicant for leave must establish that the decision in question is attended with sufficient doubt to arrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of a grant of leave.

27    The primary judge decided that the proceeding, as it was then framed and being prosecuted, was an abuse of the process of the Court in the sense that it did not identify a comprehensible cause of action, and by reason of that deficiency its continuation in that form would work oppression on the College and the Court.

28    An order that stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious or an abuse of the process of the court or does not disclose a reasonable cause of action is an interlocutory order: Re Luck (2003) 203 ALR 1 at 4 [9] per McHugh ACJ, Gummow and Heydon JJ.

29    His Honour’s conditional order that would result in the College having judgment in the proceeding under s 31A and r 26.01, necessarily was interlocutory. That is because it did not finally resolve rights or determine any of the causes of action which Dr Chandrasekaran wished to advance in the proceeding: Re Luck 203 ALR at 4 [9].

30    Counsel for the College accepted that his Honour had not foreshadowed the possibility, and the College had not raised an argument, that the conditional costs order which his Honour made, might be part of the outcome of the proceeding. Counsel for the College drew attention in his submissions to Rozenblit v Vainer (2018) 262 CLR 478. There the High Court held that, before deciding that a stay order was appropriate, it was necessary for a court to consider all reasonable alternatives to such an order. The Court held that an alternate course in that case would have been to grant leave to amend, conditioned on payment of the costs orders that were outstanding and that in the event, as seemed likely, that those costs were not paid the respondents would be protected from further expense associated with the new claim, but the appellant in that case would not be denied a determination on the existing claims. In my opinion, the same reasoning applies to an interlocutory order dismissing a proceeding.

31    Accepting that it might be possible that one or more of the persons, whom Dr Chandrasekaran claimed were its agents, could have been so for some purpose (such as supervising or teaching students), a question would remain as to whether the conduct Dr Chandrasekaran complained of was within the scope of the actual or apparent authority of those persons in their capacity as agents of the College. Despite my enquiries, Dr Chandrasekaran could not explain why or how the persons about whose conduct she complained were arguably acting as its agents, for example, when, as she alleged they were engaged in impersonating her, committing acts of abuse, physically stalking her or invading her privacy.

32    I have read the reasons of the primary judge, the two affidavits that Dr Chandrasekaran made in support of her present application, together with her written submissions and heard her submissions. I am unable to see how his Honour even arguably erred in his conclusion that the proceeding as framed was an abuse of process because of Dr Chandrasekaran’s lack of precision in articulating any comprehensible claims that she wished to make against the College, either by reason of the alleged agency of the persons whom she named or otherwise.

33    The primary judge gave examples that were cogent in explaining that lack of precision based on material which Dr Chandrasekaran had filed or provided to his Honour. I am not able to discern any arguable error by his Honour in his assessment of that material.

34    I am not satisfied that there is a reasonably arguable case that the primary judge erred because he did not order that Dr Chandrasekaran file a statement of claim or points of claim. His Honour explained that, with hindsight, such a requirement may have been a better course. However, I cannot see any error in the course his Honour adopted namely, to require Dr Chandrasekaran, ultimately with the assistance of counsel, to file submissions that distilled, from the morass of evidence that she had filed, precisely what her case was so that it could be properly understood and considered.

35    His Honour was, as I am, aware of the difficulties that litigants in person have in dealing with the requirement to plead the material facts to enable the Court to decide causes of action or articulate their cases in a way that enables the Court fairly to determine the rights of the parties. Dr Chandrasekaran is obviously an intelligent person, but she does not have legal training. She has perceived a variety of instances which she conceives the College to have responsibility either directly or through what she says is the agency of others, for incidents or circumstances she claims to have affected her life.

36    I am unable to see any arguable basis to suggest that the primary judge erred in making the orders from which leave to appeal is sought. I reject Dr Chandrasekaran’s argument that the way in which the proceeding had been conducted to date did not warrant relief of the kind that his Honour granted.

37    Even if my conclusions on that point were wrong, substantial injustice would not result from the making of his Honour’s orders. Because the orders are interlocutory, first, there is no reason why, even now, Dr Chandrasekaran cannot apply on a proper basis to his Honour with evidence of her financial circumstances and seek a variation of the order requiring payment of costs before seeking to file a pleading to meet the justice of the case, if she can establish a sufficient basis for the Court to exercise its discretion. Secondly, she could still produce a statement of claim that does articulate whatever it is that she wishes the Court to determine in the proceeding. Alternatively, she may start a fresh proceeding, albeit that there may well be issues as to whether it should be allowed to proceed without the payment of the outstanding costs of the proceeding before the primary judge.

38    Last, the allegation of bias, or apprehension of bias, which Dr Chandrasekaran articulated, is difficult to understand. As is clear from the assertions in her affidavit and submissions that I have quoted above, Dr Chandrasekaran accepted that she needed to use the process of the Court to seek evidence in order to ascertain and then prove whether or not she had been harassed in the way in which she said by whomever she alleged.

39    A person who alleges an apprehension of bias by a judge is necessarily asserting that the judge might not decide the case other than on its legal and factual merits. In order to make out such a case, the person alleging it must articulate a logical connection between the matter or circumstances relied on and the feared deviation from the course of deciding the case on its merits: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ. I can discern no basis for the bias allegations. There is nothing to suggest that a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial mind of the resolution of any question that he was required to make. Dr Chandrasekaran’s allegations or assertions of conspiracy are utterly inadequate to provide any proper basis from which such an allegation of apprehension of, or actual, bias could possibly have any foundation.

40    In my opinion, the primary judge’s order for the payment of costs was intended to ameliorate the immediate impact of the order sought by the College, that there be judgment in its favour under s 31A and r 26.01. The costs order gave Dr Chandrasekaran the opportunity to file a statement of claim if she first paid the College’s costs incurred in the proceeding that to date was an abuse of process because of her inability to articulate a comprehensible cause of action.

41    I am not satisfied that Dr Chandrasekaran has articulated any reason to doubt the correctness of his Honour’s orders. In addition, because it is still open to her to apply and to demonstrate that she does have an arguable case, I am not satisfied that any substantial injustice would result from a refusal of a grant of leave to appeal.

Conclusions

42    The application for an extension of time and leave to appeal must be dismissed with costs.

Associate:

Dated:    27 February 2020