Federal Court of Australia

Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629

ORDERS

THE COURT ORDERS THAT:

1.    Judgment is entered in favour of the first respondent against the applicant pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2.    Judgment is entered in favour of the second respondent against the applicant 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.    Judgment is entered in favour of the third respondent against the applicant pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

4.    The applicant pay the costs of the first, second and third respondents.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant in this matter, Dr Sujatha Chandrasekaran, has commenced and seeks to prosecute a proceeding in this Court against the Commonwealth of Australia, the State of New South Wales and the Australian Centre for Advanced Computing Communications Pty Ltd (AC3). In the proceeding, Dr Chandrasekaran makes extremely serious and extraordinary, if not somewhat bizarre, allegations against the Commonwealth, the Department of Defence, unspecified “servants or agents” of the Commonwealth and Defence, the State, the New South Wales Ministry of Health (branded NSW Health), the Medical Council of New South Wales, the Australian Health Practitioner Regulation Agency (AHPRA) and various psychiatrists said to be employed by NSW Health, the Medical Council or AHPRA.

2    Dr Chandrasekaran’s case against the Commonwealth, the State and AC3 has evolved over time. She has filed numerous interlocutory applications and several lengthy and astonishing affidavits. There has also been various versions of her pleading. As will be seen, the most recent iteration of her statement of claim, which features in this judgement and was apparently prepared by a lawyer, could perhaps be described as enigmatic or idiosyncratic, though other less flattering adjectives could equally be employed. To complicate things further, Dr Chandrasekaran is or was also the applicant and plaintiff in parallel proceedings in both this Court and the Supreme Court of New South Wales. Those proceedings involve or involved different parties but a common substratum of facts and allegations.

3    It is perhaps not surprising, in all the circumstances, that the Commonwealth, the State and AC3 applied for the proceeding to be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth). The State and AC3 also sought an order, in the alternative, that Dr Chandrasekaran’s pleading be struck out pursuant to r 16.21 of the Rules. The State also contended that the proceeding should be permanently stayed as an abuse of process.

4    The critical questions for consideration are whether Dr Chandrasekaran has any reasonable prospect of successfully prosecuting the proceeding, whether any reasonable cause of action is disclosed and whether the proceedings could fairly be described as frivolous, vexatious or otherwise an abuse of the processes of this Court.

THE PROCEEDINGS TO DATE

5    The proceeding has a long and rather tortuous, if not torturous, history. The present application must be considered in light of that history.

6    Dr Chandrasekaran first commenced the proceeding on 14 June 2019 by the filing of an originating application and a supporting affidavit. She sought, amongst other things, permanent injunctions restraining the Commonwealth and the State from engaging in a broad range of conduct which included harassment, stalking, “gaslighting”, breach of privacy, defamation, fraud, injurious falsehood, breach of fiduciary duty, misfeasance in public office and conspiracy. In her affidavit filed along with the originating application, she alleged that the Commonwealth and the State had contravened and continued to contravene various provisions in a number of Commonwealth and State Acts and had committed or engaged in an astonishing variety of other tortious and unlawful acts.

7    The essence of Dr Chandrasekaran’s case appeared to be, in summary, that the Commonwealth and, more specifically, Defence, had utilised counterintelligence programs to intercept her communications and obtain her private information. Those communications and that private information was then conveyed to various “third parties”; in particular, certain doctors and psychiatrists said to be employed by the State or some of its agencies, including NSW Health and the Medical Council. Those doctors had then allegedly used the communications and private information to harass and intimidate Dr Chandrasekaran in various extraordinary and unlawful ways.

8    Dr Chandrasekaran’s originating application included a claim for urgent interlocutory relief, including ex parte injunctions against the Commonwealth and the State restraining them from continuing to engage in the impugned conduct. On 27 June 2019, she filed an interlocutory application which sought an Anton Piller or search order in respect of the business premises of AC3. Lengthy affidavits, which annexed voluminous documentary exhibits, including affidavits sworn for the purpose of a previous proceeding in this Court, were filed in support of the claims for interlocutory relief against the Commonwealth, the State and AC3. At this point in time, Dr Chandrasekaran was not legally represented, in this proceeding at least. She represented herself at the hearing of her interlocutory applications on 3 July 2019.

9    Dr Chandrasekaran’s claims for interlocutory relief were dismissed on 3 July 2019: Chandrasekaran v Commonwealth of Australia [2019] FCA 1169 (Chandrasekaran No 1).

10    In dismissing Dr Chandrasekaran’s claims for interlocutory relief, the Court noted as follows in relation to the claims against the Commonwealth (at [17]):

Dr Chandrasekaran’s claims that various Commonwealth agencies have used counterintelligence programs or allowed such programs to be used by others appears, at this stage at least, to be based on nothing more than bare assertion or speculation on her behalf. Dr Chandrasekaran has not identified the specific provisions of the various Commonwealth and State Acts which she alleges have been contravened, let alone the particular individuals or entities that have allegedly contravened those provisions. Her allegations of tortious conduct and other common law causes of action against the Commonwealth are also, at this stage at least, entirely unparticularised and appear to amount to little more than broad or sweeping assertions based mostly on speculation. The basis of the Commonwealth’s liability for the other tortious or unlawful actions is presently unclear.

11    As will be seen, the lack of proper particularisation of Dr Chandrasekaran’s case against the Commonwealth is a major plank in the Commonwealth’s claim that this proceeding should be summarily dismissed. The important point to note is that Dr Chandrasekaran has been on notice of this apparent deficiency in her case since at least July 2019. As will be seen, she has had numerous opportunities to particularise her case properly or adequately since this deficiency was first exposed and explained to her.

12    The claims against the State were found to be equally amorphous and inadequately particularised. Moreover, in dismissing Dr Chandrasekaran’s claims against the State, it was observed that the claims made against the doctors who were said to be employed by or on behalf of the State appeared to be the subject of other proceedings which Dr Chandrasekaran had commenced in this Court against the Royal Australian and New Zealand College of Psychiatrists: proceeding NSD 1535 of 2018: Chandrasekaran No 1 at [18]-[19]. Indeed, the evidence that Dr Chandrasekaran adduced in support of her interlocutory relief included the affidavits she had filed in that other proceeding.

13    As will be seen, the overlap and parallels between this proceeding and Dr Chandrasekaran’s proceeding against the College, as well as another proceeding that Dr Chandrasekaran had commenced in the Supreme Court of New South Wales against the Western Sydney Local Health District, which was said to be a body corporate established by the State, is a major plank in the State’s claim that this proceeding should be summarily dismissed or the pleading struck out.

14    Following the dismissal of Dr Chandrasekaran’s claims for interlocutory relief, the proceeding was listed for a case management hearing on 11 July 2019. The orders made at that hearing included that the matter proceed by way of pleadings, that Dr Chandrasekaran have leave to join AC3 as a respondent and that Dr Chandrasekaran file and serve a statement of claim by 29 July 2019. Following the case management hearing, Dr Chandrasekaran filed a series of interlocutory applications, including applications to join various other entities and persons including ING Bank (Australia) Limited, applications for injunctive relief, applications for expedition and applications for leave to issue various subpoenas to various third parties. It is unnecessary to detail the precise nature and outcome of those various interlocutory applications. It suffices to say that Dr Chandrasekaran eventually filed a statement of claim, albeit not until 13 August 2019.

15    At a further case management hearing on 29 August 2019, Dr Chandrasekaran was given leave to file an amended statement of claim so as to remedy apparent deficiencies in her initial pleading. Those deficiencies had been identified in correspondence sent to Dr Chandrasekaran by the Commonwealth’s solicitors. The main deficiency identified in the correspondence was the absence of appropriate particulars of the alleged wrongdoing on the part of the Commonwealth, particularly in light of the seriousness of the allegations. Timetabling orders were also made in respect of a number of foreshadowed interlocutory applications, including various foreshadowed applications by Dr Chandrasekaran and foreshadowed applications by the other parties to strike out Dr Chandrasekaran’s pleading or summarily dismiss the proceeding.

16    On 1 September 2019, Dr Chandrasekaran filed an interlocutory application, in which she sought various orders, including: further injunctive relief; the joining of Amazon Pty Ltd to the proceeding; a freezing order against ING Bank; and a review of the decision to list any strike out application for hearing on 30 October 2019. Dr Chandrasekaran’s application concerning the hearing of the strike out application was ultimately dismissed by Griffiths J, who heard the matter as duty judge, though orders extending the timetable were made: Chandrasekaran v Commonwealth of Australia (No 2) [2019] FCA 1490.

17    Dr Chandrasekaran filed an amended statement of claim on 9 September 2019. The amended statement of claim was, in effect, an entirely new pleading. It was over 80 pages in length. The allegations against the Commonwealth included: fraud; abuse of process; breach of confidence; stalking; harassment; assault and battery; false imprisonment; “cruel, degrading and inhuman treatment, punishment and torture”; injurious falsehood; conspiracy; and misfeasance in public office. The allegations against the State were similarly expansive and included: fraud; conspiracy; abuse of process; cruel, degrading and inhuman treatment, punishment and torture; injurious falsehood; defamation; inducing breach of contract; breach of confidence; intimidation; unlawful interference in trade; misleading and deceptive conduct; racial discrimination; and sexual discrimination. The claims against AC3 included breach of confidence and conspiracy.

18    It is unnecessary to give any further consideration to the broad, sweeping and serious allegations included in the amended statement of claim. That is because most of the allegations appear now to have been largely abandoned, or at least have not found their way into the further amended statement of claim, at least in explicit terms. One point should, however, be noted. That point is this: despite the length of the pleading and the seriousness of the allegations, the manifest deficiencies in the particularisation of the many allegations remained. Most significantly, particularly insofar as the claims against the Commonwealth were concerned, the pleading did not specify the names of the individual Commonwealth officers who were said to be responsible for most of the alleged serious wrongdoing. In relation to the claims against the State, while a number of doctors were named, there was no clear articulation of exactly how the State was said to be responsible for the alleged wrongdoing by those doctors. There was also a distinct lack of specificity and particularity in respect of many other aspects of the serious allegations.

19    On 16 September 2019, the Commonwealth, the State and AC3 filed applications for summary dismissal and, in the case of the State and AC3 at least, an order striking out the amended statement of claim. Affidavit evidence and written submissions were in due course filed by the parties in relation to the interlocutory applications.

20    Shortly prior to the hearing of the interlocutory applications, Dr Chandrasekaran applied for an adjournment of the hearing on the basis that her counsel was said to be overseas. This was the first indication that Dr Chandrasekaran was legally represented. The hearing of the applications to summarily dismiss the proceeding or strike out the amended statement of claim were in due course adjourned, essentially on the basis that Dr Chandrasekaran had secured legal representation and that her counsel foreshadowed an application for leave to further amend the pleading. Dr Chandrasekaran’s lawyer advised the Court that the proposed further amended pleading would be significantly narrower and confined than the amended statement of claim. It was tolerably clear that, in applying for leave to amend in the face of the summary dismissal and strike out applications, Dr Chandrasekaran, through her lawyer, effectively conceded that the existing amended statement of claim was defective and liable to be struck out.

21    As foreshadowed, Dr Chandrasekaran eventually furnished a further amended statement of claim (FASC) which purported to be prepared and certified by a lawyer. The Commonwealth, the State and AC3 each ultimately adopted an eminently sensible and practical approach to Dr Chandrasekaran’s amendment application. They did not oppose Dr Chandrasekaran being granted leave to amend and leave to file the proposed further amended statement of claim, though their non-opposition to that course was expressed to be strictly on the basis that they would maintain or renew their applications for summary dismissal or the striking out of the pleading, albeit on the basis of the new pleading. In short, they maintained that many of the defects and deficiencies which were said to be inherent in Dr Chandrasekaran’s amended statement of claim and the proceeding generally had not been remedied by the filing of the further amended statement of claim.

THE CURRENT PLEADING

22    The current pleading is perhaps best understood by first summarising the factual allegations made against each of the Commonwealth, the State and AC3, and then analysing the causes of action which are said to flow from some of those allegations.

Factual allegations against the Commonwealth

23    There would appear to be four or possibly five broad categories of allegations against the Commonwealth spread throughout the pleading. As has already been noted, the allegations are all serious and extraordinary. As will be seen, some of them also border on the bizarre.

Collecting, accessing and intercepting information and communications

24    The first category of allegations involve various claims that the Commonwealth, by its servants or agents, allegedly intercepted, collected or accessed Dr Chandrasekaran’s personal, confidential and private information: FASC [3] and [4]. This was said to have been done by requesting “others” to intercept Dr Chandrasekaran’s communications. Those others were said to include Google LLC, Amazon Pty Ltd, AC3, Over The Wire Pty Ltd, Anticlockwise Pty Ltd, Entrust Inc Pty Ltd, GTT Communications Pty Ltd and “others presently unknown”: FASC [3].

25    The following observations may be made about this category of allegations.

26    First, the timeframe in which this conduct is alleged to have occurred is somewhat unclear but appears to involve a very lengthy period. The timeframe is particularised as being “[o]n or before 12 August 2017” (FASC [3]), though in the submissions made on Dr Chandrasekaran’s behalf it was suggested that this was an error and that it should read “[o]n or after 12 August 2017”. Either way, the time period is expressed in very broad terms. There are no particulars of any incident involving an alleged interception or accessing of information on a specific date.

27    Second, there is equally a complete lack of specificity in terms of the information said to have been accessed and the communications said to have been intercepted. Later paragraphs of the pleading refer to the information and communications as including “online accounts, telephonic communications, devices, bank accounts”: FASC [10], see also [16], [17]. That is, however, as specific as the pleading gets. Other than in the context of one of the allegations made against the State and AC3, there are no particulars of any specific communication or any specific item of information which was allegedly accessed or intercepted by the Commonwealth or any of its servants or agents. As referred to in more detail later, there is also a broad allegation concerning GPS tracking.

28    Third, there are no particulars of any specific servant or agent of the Commonwealth who was said to be responsible for, or involved in any way in, the interception or accessing of Dr Chandrasekaran’s information and communications. Later paragraphs of the pleading appear to focus on Defence as being the main body or entity who is alleged to have intercepted, accessed or collected Dr Chandrasekaran’s information and communications: see FASC [10], [11], [16] and [17]. The pleading does not, however, identify any officer or agent of Defence who was said to be responsible for this conduct. The only individual identified in the pleading as being an officer of the Commonwealth and Defence is a doctor, Dr Bruce Boman, who is also said to be employed from time to time by NSW Health: FASC [9] particular (i) and (ii). It is not, however, alleged that Dr Boman was in any way responsible for intercepting, accessing or collecting Dr Chandrasekaran’s information or communications. The only allegation against Dr Boman appears to be that he made certain representations, or that the Commonwealth provided information to him. Those allegations are considered separately.

29    Fourth, there is no indication in the pleading of the motive or reason that the Commonwealth or Defence had, or would or even might have had, to intercept, access or collect Dr Chandrasekaran’s confidential information and communications. While it is not suggested that it is necessary for Dr Chandrasekaran to plead a motive on the part of the Commonwealth, that would certainly assist in making sense of what are otherwise extraordinary allegations.

Providing information to others

30    The second category of allegations is that the Commonwealth, or Defence, provided Dr Chandrasekaran’s confidential information to “others”, without her authorisation, for the “purposes of misuse”: FASC [13] and [14]. It is also alleged that the information was misused, both by Defence and by the persons to which it was provided, including to: portray Dr Chandrasekaran in a “false light” and to “create false communications and activities” (FASC [15]); cast Dr Chandrasekaran “as a person of ridicule” (FASC [15] particular (i)); and to repeat the information to Dr Chandrasekaran and others in a manner that is “inappropriate, out of context and non-sensical with the intention to humiliate, degrade, violate and insult her in the form of a parody” and “shun and ostracise” her (FASC [15] particular (vi); [16] particular (i), (iv), (v), (vi); [17] particular (iv), (vii), (viii), (ix); [18] particular (iii)). The persons to whom the information was said to be provided include Dr Boman and other persons who are employed by NSW Health: FASC [13], [16] particular (iii) and [18] particular (iii).

31    The following observations may be made about this category of allegations.

32    First, the timeframe in which the Commonwealth’s misuse of Dr Chandrasekaran’s information was alleged to have occurred is unclear and not properly particularised. It would appear to be alleged that it has occurred “since at least April 2012”: FASC [14]. No further particulars are provided. That date also does not coincide with the date from which, or before which, it is alleged that the Commonwealth began “collect[ing]” Dr Chandrasekaran’s information, which as noted earlier was 12 August 2017: see FASC [3]. If, as was submitted on Dr Chandrasekaran’s behalf at the hearing of the summary dismissal application, 12 August 2017 was the date from which the Commonwealth started collecting Dr Chandrasekaran’s information, it is unclear how it can then be alleged that the Commonwealth began misusing her information from as early as April 2012. In any event, the lack of specificity in respect of the timing of the alleged receipt and misuse of the information is manifest.

33    Second, the pleading contains no particulars whatsoever of any individuals employed or retained by the Commonwealth, or Defence, who Dr Chandrasekaran alleges were or are responsible for receiving and providing her information to others for the purposes of misuse. The only person who is identified and alleged to be an officer of the Commonwealth is Dr Boman; though, as discussed next, the allegation against him is that he made false representations against Dr Chandrasekaran, not that he was a Commonwealth officer who was responsible for providing Dr Chandrasekaran’s confidential information to others for the purpose of “misuse”.

34    Third, the Commonwealth’s reason or motive for receiving and providing Dr Chandrasekaran’s confidential information to others for the purpose of misuse in the way she alleges is again left entirely unexplained. While motive may not be an essential element of any of the causes of action alleged against the Commonwealth, the absence of any rational explanation for the serious allegations is again capable of casting doubt on the veracity of those allegations.

Intentionally making false representations and slander

35    This category of allegation against the Commonwealth is related to the allegation that the Commonwealth provided Dr Chandrasekaran’s confidential information to other persons for the purpose of misuse. It is alleged that Dr Boman, who is said to be an officer “in” Defence, intentionally made representations to Defence “and others present” to the effect that Dr Chandrasekaran is a threat to national security and is involved in terrorist offences (FASC [9] particular (i), [16] particular (ii), [17] particular (v), [18] particular (ii); see also [20], albeit in the context of claims against the State). There is no indication of the position that Dr Boman occupied at Defence, or who at Defence he made the false representations to or who the “others present” were. Nor is there any particularisation of the timeframe in which these false representations were said to have been made.

36    It is also alleged that Dr Boman, amongst various other psychiatrists employed by NSW Health, “spread slanders” against Dr Chandrasekaran after she resigned from a particular clinic in April 2012: FASC [20]. Those allegations appear in that part of the pleading which is said to contain Dr Chandrasekaran’s case against the State, but nevertheless appear to relate in some way to the claims against the Commonwealth. Those slanders are said to have been published to “other medical officers” and are said to include that Dr Chandrasekaran is “[p]aranoid, erotomaniac, homosexual, a sexual deviant and has an eating disorder” and has “[c]aused conflict and is involved in terrorism as a sympathiser and offender”: FASC [20] particulars (ii) and (iii). The basis upon which the Commonwealth could be held responsible for the alleged spreading of those slanders is entirely unclear, other than perhaps the unparticularised allegation that Dr Boman is an officer of Defence.

37    The sweeping allegations concerning false representations and slander are almost entirely devoid of any meaningful particulars. There is no indication of when they were made, or who they were made to or the means, manner or circumstances in which they were made. It appears, however, to be alleged that they were made so as to destroy Dr Chandrasekaran’s career advancement: FASC [20] particulars (v), (vii) and (ix). Exactly why anyone at Defence would want to do that is entirely unclear.

The Defence “program” – Accessing GPS data, stalking, harassment and trespass

38    It is at this point, if indeed not before, that the allegations in the pleading could fairly be considered to be somewhat bizarre. It is alleged that the slanders about Dr Chandrasekaran “were published in advance of the program Defence deployed consisting of workplace mobbing and sabotage, privacy violations … harassment that has the appearance of co-incidence, cyberstalking, physical stalking, gaslighting, false evidence and fabrication of official documents including subpoena, black bag jobs and damage to property and vandalism”: FASC [20] particular (iv). Needless to say, no particulars are provided in relation to these allegations.

39    If that were not enough, it appears to be alleged that the Commonwealth, via Defence, tracks Dr Chandrasekaran’s location by accessing her “devices” and uses that information to stalk her, enter her premises, vandalise and damage her property, take photographs of her which are then manipulated, meddle with the mechanics of her car and even spike her drinks: FASC [10] and [18] and the particulars thereto.

40    These are obviously extremely serious allegations. Most of them would, if substantiated, constitute serious criminal offences. They are, however, allegations that are entirely unsupported by any meaningful particulars as to time and place, let alone particulars of the persons who are said to have been responsible for these egregious activities. They amount to nothing more than a sweeping catalogue of bare assertions and conclusions.

41    It should also be noted in this context that other serious allegations are made against Defence in that part of the pleading that details Dr Chandrasekaran’s case against AC3. Those allegations will be discussed later in that context. It suffices to say that Dr Chandrasekaran alleges that Defence had an agreement with AC3 whereby it granted AC3 permission to access her communications “in tandem with and alongside other cloud providers”: FASC [39]. Like virtually all of the allegations made against Defence, however, this serious allegation is entirely unsupported by meaningful particulars. Those particulars that are provided amount to little more than a series of bizarre, general assertions about the means by which Dr Chandrasekaran’s communications are supposedly intercepted.

Hacking bank accounts and unauthorised transactions

42    Finally, there is a category of allegations which involve allegations that Defence has “hacked” Dr Chandrasekaran’s online bank accounts. It is alleged that Defence has accessed Dr Chandrasekaran’s bank accounts, made unauthorised transactions on those accounts and otherwise misused the information obtained from that access to parody and ridicule, or facilitate others to parody and ridicule, Dr Chandrasekaran.

43    These broad and sweeping allegations are again, for the most part, entirely unparticularised, though there is reference to one specific incident where it is alleged that Dr Chandrasekaran received an “unwanted anonymous gift in the form of champagne containing sedatives” when she stayed at the Hotel Windsor on 2 May 2015: FASC [17] particular (x). What is unclear, however, is exactly how or why Dr Chandrasekaran alleges that the Commonwealth was responsible for this alleged conduct. Her case in that regard would appear to amount to nothing more than speculation or conjecture.

Causes of action pleaded against the Commonwealth

44    It is possible to discern four potential causes of action in that part of the pleading which concerns the Commonwealth. Each of them appears to be a common law, not statutory, cause of action. None of them are properly pleaded or particularised.

45    The first cause of action appears to be an action for breach of confidence: FASC [5] and [15]. The elements of the equitable action for breach of confidence were summarised in the following terms by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443:

It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidence (and is not for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of this information...

46    As discussed in more detail later, the pleading does not properly address the essential elements of this cause of action. In particular, nowhere in the pleading does Dr Chandrasekaran identify “with specificity” the relevant information. Nor does the pleading identify the circumstances in which the Commonwealth received the information which would “import” an obligation of confidence.

47    The second potential cause of action would appear to be some form of common law cause of action for breach of privacy: FASC [6]. The difficulty for Dr Chandrasekaran, however, is that, whatever may be the position in overseas jurisdictions, there is no recognised tort or other common law action for breach of privacy in Australia.

48    The third potential cause of action would appear to be an action in bailment or negligence: FASC [7]. It would appear to be alleged that the Commonwealth became a “bailee” of Dr Chandrasekaran’s “intangible property” and that, as bailee, the Commonwealth owed Dr Chandrasekaran a duty of care not to hurt or harm her. The viability or availability of this claim will be considered in detail later. It suffices at this point to make the following brief observations. First, the apparent claim that, by unlawfully intercepting Dr Chandrasekaran’s communications, the Commonwealth somehow became the bailee of the information contained in those communications and thereby owed Dr Chandrasekaran a duty of care in that capacity, could fairly be said to be novel, to say the very least. Second, it is, at best, doubtful that it is possible in any circumstances to become a bailee of intangible property. Third, there is in any event no proper particularisation of exactly what intangible property of Dr Chandrasekaran’s is alleged to be the subject of the bailment. And fourth, even if the dubious proposition that the Commonwealth might owe a duty of care to Dr Chandrasekaran as a consequence of its position as bailee is accepted, there is in any event no allegation that the Commonwealth breached that duty of care, let alone proper particulars of that breach. Nor are there any proper particulars in relation to loss or damage.

49    The fourth potential cause of action is said to be an action for damages “under the principle in Wilkinson v Downton [1897] 2 QB 57 in respect of nervous shock resulting from the intentional false representation”: FASC [9]. The pleading does not, however, properly identify or plead the elements of that cause of action.

50    The existence in Australia of the tort of intentional infliction of emotional distress or nervous shock, based on the decision in Wilkinson v Downton, is not without controversy: see Clavel v Savage [2013] NSWSC 775 at [11] to [36] and the case cited therein (and not disturbed on appeal, Clavel v Savage [2015] NSWCA 61); see also Byrnes v Majak [2020] NSWSC 906 at [63]; Odeh v State of New South Wales [2019] NSWSC 342 at [20]. It is unnecessary to enter into that debate here. It suffices to note that, if such an action is recognised in Australia, its elements are: first, a deliberate act by the tortfeasor; second, an intention (including reckless indifference) by the tortfeasor to cause physical or psychiatric harm by that conduct; third, the occasioning of harm (including psychiatric injury, but not mere distress) as a result of the conduct; fourth, the harm was caused to a person to whom the harm was intended to be caused and in circumstances where the conduct was reasonably likely to cause harm in a normal person; and fifth, the tortfeasor engaged in the conduct without cause or lawful excuse: Clavel at [36].

51    The relevant conduct in this case would appear to be the alleged false representations about Dr Chandrasekaran by Dr Boman. As already noted, however, there is no proper particularisation of those representations or their falsity. More significantly, there is no proper pleading or particularisation of any of the other elements of this cause of action, including the intention to cause physical or psychiatric harm and the physical or psychiatric injury, amounting to more than mere distress, said to have been suffered by Dr Chandrasekaran.

52    The final point to note in relation to the causes of action pleaded against the Commonwealth is there is nothing in the pleading to suggest why or how this Court has jurisdiction to try any of these four causes of action. More will be said in relation to that issue later.

Factual allegations against the State

53    The pleading contains two broad factual allegations against the State.

54    The first category of allegations concerns the making of false representations to “third parties including the general public” about Dr Chandrasekaran so as to “cause the lowering of an opinion of her in the eyes of reasonable people in her trade or profession as a psychiatrist”: FASC [20]. The false representations were alleged to have been made by various psychiatrists including, as noted in the context of the claims against the Commonwealth, Dr Boman, as well as various doctors who it is alleged were employed by “NSW Health, the Medical Council of NSW and [AHPRA]”: FASC [20].

55    The nature of the alleged “slanders” was considered earlier in the context of the factual allegations against the Commonwealth, as was the “Defence program” of which these slanders supposedly formed a part. As was there noted, the alleged false misrepresentations are almost entirely unparticularised as to time, content, place, recipient and means of communication or publication. The most that is said is that the representations have allegedly been made since “at least 2012” and that they have been made to “third parties including the general public”. The broad subject matter of the alleged slanders is referred to, but no specific representation is included in the pleading. It is alleged that the various psychiatrists who made the statements knew that they were false.

56    The second allegation is more specific. It involves the allegation that the Crown Solicitor’s Office and NSW Health “knowingly relied on a falsified expert witness report” in the proceedings that Dr Chandrasekaran commenced against the Western Sydney Local Health District (proceeding 2018/177874): FASC [23]. Two specific lawyers who it is alleged were employed or retained by the Crown Solicitor’s Office are identified as having known that the report was false, or contained false representations. No officers of NSW Health are identified. This conduct is alleged to have been “consistent with fraud” and the intention of the relevant lawyers or officers is alleged to be “fooling the court that [Dr Chandrasekaran] has a psychiatric illness so as to appoint a tutor to derail her self-representation and claim”: FASC [20] particulars (i), (ii) and (iii). The conduct is alleged to have cause Dr Chandrasekaran to suffer humiliation, “annihilation” and trauma: FASC [20] particular (v).

57    There could be little doubt that those allegations are extremely serious. If substantiated, they would constitute a contempt of court, albeit one that should be dealt with in the Supreme Court proceeding. It would also appear that this allegation has in fact been aired in the Supreme Court proceeding. It is referred to, albeit somewhat obliquely, in the amended pleading filed in that proceeding in May 2019.

Causes of action pleaded against the State

58    It is almost impossible to discern any properly pleaded cause of action against the State. This was effectively conceded by counsel who appeared for Dr Chandrasekaran, who described the pleading against the State as “idiosyncratic”.

59    One of the pleaded causes of action would appear to be the tort of injurious falsehood: FASC [20]. The elements of that cause of action are: first, a false statement of or concerning the plaintiff’s goods or business; second, publication of that statement by the defendant to a third person; third, malice on the part of the defendant; and fourth, proof by the plaintiff of actual damage suffered as a result of the statement: Palmer Bruyn v Parsons (2001) 208 CLR 388 at [52] (per Gummow J referring to Ratcliffe v Evans [1892] 2 QB 524 at 527-528). It is readily apparent that, amongst other things, the pleading does not specifically address each of those four elements of the cause of action. Most significantly, the pleading does not contain any allegation that the representations related to Dr Chandrasekaran’s business or any allegation of malice.

60    There is also a potential limitation issue in relation to this cause of action. The limitation period for an action for injurious falsehood is six years: see s 14 of the Limitation Act 1969 (NSW). The false representations that are said to form the basis for this cause of action are alleged to have been made “[s]ince at least 2012”. The absence of any proper particulars of the false representations makes it difficult to reach any firm conclusion in relation to whether the action is statute barred, though it is highly unlikely that Dr Chandrasekaran could rely on any representations made before 14 June 2013.

61    There is a suggestion or hint in the pleading of one other cause of action against the State, being a cause of action in negligence. That suggestion or hint arises because it is alleged, in connection with the allegations concerning the reliance on the false expert witness report in the Supreme Court proceeding, that the Crown Solicitor’s Office and NSW Health breached a duty of care they owed to Dr Chandrasekaran: FASC [23]. There is, however, no indication of the alleged basis upon which it is alleged that any such a duty of care was owed. The contention that a solicitor owes a duty of care to the opposing party in litigation would appear to have little or no merit. Nor is there any proper allegation or particularisation of the alleged breach of the duty of care in the circumstances.

62    Counsel for Dr Chandrasekaran made a last-minute submission that there was a pleaded cause of action under s 18 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth). That submission was, to say the very least, both brazen and desperate. Putting aside the obvious absence of any reference to that statutory provision in the pleading, there is nothing in the pleading to suggest that any of the conduct allegedly engaged in by the State was engaged “in trade or commerce”. It is not alleged that any allegedly false statement made by the State or anyone employed by it was made in trade or commerce. Nor, not surprisingly, is it alleged that the allegedly false expert witness report was somehow employed in trade or commerce.

63    Counsel for Dr Chandrasekaran did not contend that there was any other cause of action against the State. He expressly disavowed any contention that the allegations concerning the allegedly false expert witness report gave rise to any cause of action involving fraud or deceit, despite the reference to fraud in the pleading.

Factual allegations against AC3

64    It would appear to be essentially uncontentious that AC3 had, at the relevant time, been retained to provide services to certain departments or agencies of the State, including the Department of Communities and Justice. Those services include managing the computer networks of the Crown Solicitor’s Office and the Supreme Court of New South Wales. The factual allegations made against AC3 by Dr Chandrasekaran must be considered in that context.

65    The central allegation against AC3 would appear to be, in substance, that AC3 somehow received Dr Chandrasekaran’s confidential information and then disclosed it to third parties without Dr Chandrasekaran’s authority. That allegation is pleaded in both specific and general terms.

66    The specific allegation concerns an email that Dr Chandrasekaran sent to the Medical Council in June 2019: FASC [27]-[29]. Dr Chandrasekaran alleges that the Medical Council “transferred” that email to AC3 “for reward” and AC3 thereby become a bailee for reward of that “intangible property”: FASC [30]-[31]. That in turn allegedly gave rise to a duty of care that AC3 owed to Dr Chandrasekaran not to “damage the intangible property” by disclosing it to third parties without her authority: FASC [32]. It is alleged that, in breach of that duty, AC3 disclosed the email on 56 separate occasions between 21 June 2019 and 13 July 2019: FASC [33]. That allegedly caused Dr Chandrasekaran to suffer significant loss and damage, including harm to her reputation, stress and disappointment and loss of personal safety, privacy and well-being: FASC [34].

67    It is important to emphasise at this juncture that the particulars of the alleged breach of duty by AC3 which are included in the pleading refer to certain paragraphs of an affidavit sworn by Dr Chandrasekaran. It is readily apparent from those paragraphs of the affidavit that Dr Chandrasekaran’s case that AC3 received her email and forwarded it on to others is entirely reliant on the fact that IP addresses associated with AC3 appear in a report prepared by her which purports to trace the occasions that this email was accessed. As discussed in more detail later in these reasons, AC3 adduced affidavit evidence in support of its summary dismissal application which provided an entirely innocent explanation for the fact that one of its IP addresses may appear in Dr Chandrasekaran’s report.

68    The general allegation against AC3 is that since 21 June 2019, AC3 has received further “personal, confidential, private and/or privileged information” of Dr Chandrasekaran and disclosed that information to third parties “in breach of duty and without the consent or authority of [Dr Chandrasekaran]”: FASC [36]. It is alleged that Dr Chandrasekaran has suffered, and continues to suffer, loss and damage from that alleged breach of duty.

69    The following points should be made concerning that general allegation. First, no particulars whatsoever are provided of the “further information” that Dr Chandrasekaran alleges AC3 received after 21 June 2019. There are also no particulars whatsoever of the “third parties” to whom AC3 is alleged to have disclosed the unspecified information, or of the loss and damage allegedly suffered by Dr Chandrasekaran as a result of the alleged disclosures.

70    Dr Chandrasekaran also relies on an additional or alternative factual allegation against AC3. This allegation, which was alluded to earlier in the context of the factual allegations against the Commonwealth, is both serious and somewhat bizarre. Dr Chandrasekaran alleges that AC3 “by its servants or agents” intercepts Dr Chandrasekaran’s email communications pursuant to an agreement it has with Defence for and on behalf of the Commonwealth: FASC [38]. The terms of that agreement would appear to be that Defence has granted AC3 “permission to access [Dr Chandrasekaran’s] communications in tandem with and alongside other cloud providers”: FASC [39].

71    Particulars of the alleged agreement and the means by which AC3 accesses Dr Chandrasekaran’s emails are provided in the pleading, but even the most cursory analysis of those particulars reveals that they comprise little more than a series of sweeping and bald assertions that are, at best, speculative. It is, for example, asserted that the agreement includes “verbal or written contractual agreements” the details of which “cannot be known until discovery”: FASC [39] particular (d). It is also readily apparent that Dr Chandrasekaran has no evidence of the interception of her emails because that access is said to be “automated and based on an algorithm” which uses “bots” and occurs “upstream” with the result that the interceptions do not appear on the “IP logs” of her email accounts: FASC [39] particulars (a) and (h). No particulars of the emails said to have been intercepted in this way are provided.

72    Dr Chandrasekaran alleges that AC3’s conduct in intercepting her emails as alleged has caused her to suffer loss and damage “through emotional trauma, violation, sabotage to her activities in trade to cause loss of income, employment and livelihood”: FASC [40]. Needless to say, no proper particulars of that loss or damage are provided.

Causes of action pleaded against AC3

73    There would appear to be only one cause of action pleaded against AC3. That cause of action is either an action in bailment or an action in negligence for breach of the duty of care said to arise as a result of AC3’s position as a bailee for reward of Dr Chandrasekaran’s intangible property. It is alleged that AC3 breached that duty of care by disclosing the intangible property to third parties. The damage allegedly suffered as a result of the breach would appear to be damage to Dr Chandrasekaran’s reputation, as well as stress and disappointment. It does not appear to be alleged that the intangible property said to be the subject of the bailment was itself damaged.

74    The observations made earlier about the similar cause of action in bailment, or in negligence arising from a bailment, alleged against the Commonwealth apply equally to this cause of action alleged against AC3. The viability or availability of the cause of action will be discussed in more detail later.

75    There does not appear to be any pleaded cause of action arising from the factual allegations concerning AC3’s accessing of Dr Chandrasekaran’s emails pursuant to its agreement with Defence.

OTHER PROCEEDINgS INSTITUTED BY DR CHANDRASEKARAN

76    It is necessary to give some brief consideration to the other proceedings that Dr Chandrasekaran has commenced against various bodies or entities in both this Court and the Supreme Court of New South Wales. That is because, as will be seen, there are significant parallels between those proceedings and this proceeding, particularly in relation to the nature of the allegations and the relief sought. Most significantly, there would appear to be a common substratum of factual allegations against many of the same individuals that form the basis of the relief sought in the proceedings. Indeed, the allegations which are the subject of this proceeding could perhaps be characterised as an expansion and escalation of the allegations which were first made in the other proceedings. The timing of the commencement of this proceeding also tends to suggest that it was prompted by difficulties that Dr Chandrasekaran was experiencing in the other proceedings.

77    Dr Chandrasekaran first commenced proceedings in the Supreme Court in the first half of 2018. The defendants to that proceeding were the Western Sydney Local Health District and a private company, Charterhouse Medical Pty Limited. The main focus of that proceeding, when first commenced at least, was the alleged termination of Dr Chandrasekaran’s employment by, or the termination of the arrangements pursuant to which she provided services to, Westmead Hospital, a hospital administered by the Western Sydney Local Health District. Significantly, however, Dr Chandrasekaran soon sought to escalate the proceedings to include both the Medical Council and the State. That came about because, following the termination of her services, a complaint against Dr Chandrasekaran was lodged with the Medical Council. That complaint led to a condition being imposed on her registration, that condition being that she not practise medicine. It would appear that Dr Chandrasekaran sought to challenge the Medical Council’s imposition of the condition on her registration and sought to pursue the persons who she considered to be responsible for the complaint that led to that action by the Medical Council.

78    By November 2018, Dr Chandrasekaran’s statement of claim in the Supreme Court proceeding had undergone a number of revisions and amendments. It is unnecessary to discuss the allegations made by Dr Chandrasekaran in the Supreme Court proceedings in any great detail. It suffices to note that the allegations included allegations against various doctors that they had breached Dr Chandrasekaran’s confidence and misused or disclosed her personal information, made misleading or deceptive statements about her and made vexatious complaints about her to AHPRA and the Medical Council. Many of those doctors were the same doctors that featured in either the affidavits filed by Dr Chandrasekaran in support of her interlocutory application in this matter, or in earlier iterations of the pleadings in this matter. In addition, as noted earlier, the allegation in this proceeding that the Crown Solicitor’s Office relied on a “falsified expert witness report” (FASC [23]) is also relied on in the Supreme Court proceeding.

79    Dr Chandrasekaran filed an application to join the Medical Council and the State to her action in the Supreme Court in March 2019. That application was dismissed on 15 May 2019: Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567. This proceeding, which also involves serious allegations against the Medical Council and the State, or doctors said to be employed by the Medical Council and the State, was commenced within a matter of weeks of Dr Chandrasekaran’s failed attempt to join those parties in the proceeding in the Supreme Court.

80    At the hearing of the summary dismissal applications, Dr Chandrasekaran’s counsel effectively conceded that there was a relevant overlap between the Supreme Court proceeding and this proceeding. He accepted, in those circumstances, that there was a proper basis for the Court to order that this proceeding be temporarily stayed pending the outcome of the proceeding in the Supreme Court. It was not, however, conceded that a permanent stay was appropriate.

81    Dr Chandrasekaran commenced the other proceedings in this Court, NSD 1535 of 2018, by filing an originating application on 21 August 2018. The respondent was the College. On 16 October 2019, Flick J effectively acceded to an application by the College to summarily dismiss the proceeding: Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687 (Chandrasekaran v College). His Honour ordered Dr Chandrasekaran to pay the College’s costs and ordered that, if those costs were paid, Dr Chandrasekaran could, within 28 days, file an application seeking leave to file a statement of claim certified by counsel. The orders made by Flick J also provided that if no such application was filed, judgment was to be entered in favour of the College pursuant to s 31A of the FCA Act and r 26.01 of the Rules.

82    The main reason given by Flick J for effectively summarily dismissing the claim was “the absence of any satisfactory specificity in the cause or causes of action sought to be pursued by Dr Chandrasekaran and, even more fundamentally, the absence of any clearly articulated basis upon which Dr Chandrasekaran sought to attribute liability to the College”: Chandrasekaran v College at [4]. That “fundamental difficulty” had “plagued the proceeding from the outset”: Chandrasekaran v College at [4]. Needless to say, much the same could be said about this proceeding. His Honour concluded, in effect, that in those circumstances it would be “an abuse of process to allow the matter to proceed to hearing”: Chandrasekaran v College at [9].

83    It would appear that Dr Chandrasekaran did not pay the College’s costs and did not file an interlocutory application seeking leave to file a statement of claim certified by counsel. Instead, she filed an application for an extension of time and leave to appeal. That application was dismissed on 19 February 2020: Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2020] FCA 214.

84    It is readily apparent that the substratum of facts and allegations that Dr Chandrasekaran sought to rely on in her case against the College are the same as, or at least overlap substantially with, the facts and allegations relied on by Dr Chandrasekaran in this proceeding. This was again effectively conceded by Dr Chandrasekaran’s counsel at the hearing of the summary judgment application. The overlap is, in any event, obvious.

85    Dr Chandrasekaran’s claim against the College was based on allegations against various psychiatrists “[s]ince 2012”. As has already been noted, the allegations in this proceeding also date from 2012. The allegations made against the psychiatrists in her claim against the College included that they would: repeat the same sentences “in a manner intended to humiliate and ridicule”; illegally and unlawfully access Dr Chandrasekaran’s communications; slander her; engage in “cyberstalking” and “gaslighting”; physically stalk her; and break and enter into her residence and car: see Chandrasekaran v College at [10], [28], [32]-[35], [40]-[42], [66]-[67]. It would appear that the evidence relied on by Dr Chandrasekaran in her proceedings against the College specifically referred to the same doctors who feature in her allegations in this matter, including Dr Boman, Dr Stephen Jurd, Dr Andrew Pethebridge, Dr Andrew Ellis and Dr Saretta Lee.

86    Dr Chandrasekaran also alleged in her affidavits filed in her proceedings against the College that the College or the relevant psychiatrists, or someone else, had entered into a conspiracy with the “Australian Signals Directorate or ASIO or Department of Defence” with the “intention to victimise [Dr Chandrasekaran] and push her out of the profession” and to harm her “psychologically, physically, socially and financially”: Chandrasekaran v College at [66]-[67]. Those actions were said to have been made possible “through a third party/agency through identity fraud relating to terrorism”. Thus, it would appear that while the Commonwealth was not a party to the proceeding Dr Chandrasekaran commenced against the College, the allegations made by her in that proceeding included that Commonwealth entities or agencies had engaged in conduct which somehow facilitated the conduct of the psychiatrists upon which the proceeding focussed.

87    The College’s application to summarily dismiss Dr Chandrasekaran’s claim against it was heard by Flick J on 16 and 29 May 2019. His Honour reserved his judgment. This proceeding was commenced only two weeks later.

88    As was adverted to earlier, the affidavit filed by Dr Chandrasekaran in support of her interlocutory application in this matter annexed various affidavits which had been filed in her proceeding against the College. She stated, in her affidavit filed in this proceeding, that she was annexing the affidavits filed in the other proceeding to “assist in my application to seek an action against [the Commonwealth and the State] … as judgement [sic] is reserved for NSD1535/2018”. As noted earlier, those affidavits included essentially the same allegations against the same doctors who are referred to in the pleadings in this proceeding.

89    It is obvious, in all the circumstances, that the relief sought by Dr Chandrasekaran was essentially based on the same allegations against many of the same doctors as those in the proceeding against the College. Dr Chandrasekaran effectively acknowledged as such. It is equally clear that Dr Chandrasekaran commenced these proceedings shortly after she ran into difficulties in her proceedings against the College and, it may be inferred, so as to side-step those difficulties.

RELEVANT PROVISIONS AND PRINCIPLES

90    As was noted at the outset, the Commonwealth sought an order for summary judgment against Dr Chandrasekaran pursuant to s 31A of the FCA Act and r 26.01 of the Rules. The State and AC3 sought summary judgment or, in the alternative, an order striking out the pleading pursuant to r 16.21 of the Rules. The State also sought an order permanently staying the proceeding as an abuse of process.

91    Subsection 31A(2) of the FCA Act, which provides for summary judgment, is in the following terms:

The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

92    Rule 26.01 of the Rules, which also deals with summary judgment, provides as follows:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

   (b)    the proceeding is frivolous or vexatious; or

   (c)    no reasonable cause of action is disclosed; or

   (d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

(2)    The application must be accompanied by an affidavit stating:

(a)    the grounds of the application; and

(b)    the facts and circumstances relied on to support those grounds.

(3)    The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application.

(4)    If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order.

(5)    If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant’s claim, a respondent who has a cross‑claim against the applicant or some other party may:

(a)    continue to prosecute the cross‑claim against the applicant or other party; and

(b)    apply to the Court for an order staying execution on or enforcement of the judgment until the respondent’s cross‑claim is determined.

Note:    See also section 31A of the Act.

93    Rule 16.21 of the Rules, which deals with striking out, provides as follows:

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

   (a)    contains scandalous material; or

   (b)    contains frivolous or vexatious material; or

   (c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

   (f)    is otherwise an abuse of the process of the Court.

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

Relevant principles – Summary judgment

94    The relevant principles in relation to summary judgment or dismissal under s 31A of the FCA Act were considered by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118 and have been discussed in numerous judgments in this Court. They may be summarised as follows.

95    First, s 31A authorises summary disposition of proceedings “on a variety of bases under its general rubric” (that is, “no reasonable prospect of successfully prosecuting …”), including, but not limited to: where the pleadings disclose no reasonable cause of action and their deficiency is incurable; the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case that might be propounded by permissible amendment; and the “longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’”: Spencer at [22] (per French CJ and Gummow J). It should be noted, in this context, that r 26.01 of the Rules expressly provides for summary judgment not only where there is no reasonable prospect of successfully prosecuting the proceeding, but also where the proceedings is frivolous or vexatious, or no reasonable cause of action is disclosed or the proceeding is an abuse of process. The meaning of “vexatious” in this context is considered below in the context of the principles relating to striking out pleadings.

96    Second, the power to summarily dismiss a proceeding is to be distinguished, in its application to deficient pleadings, from rules such as r 16.21 of the Rules: Spencer at [23] (per French CJ and Gummow J). Where the evidence shows that a person may have a reasonable cause of action or reasonable prospects of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47], referred to in Spencer at [23]. That said, a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries at [47].

97    Third, an applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is not hopeless or bound to fail: Spencer at [17] (per French CJ and Gummow J). The inquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52] (per Hayne, Crennan, Kiefel and Bell JJ).

98    Fourth, the “exercise of powers to summarily terminate proceedings must always be attended with caution”, whatever may be the basis upon which that disposition is sought: Spencer at [24] (per French CJ and Gummow J). It is not a power to be exercised lightly: Spencer at [60] (per Hayne, Crennan, Kiefel and Bell JJ). There must be a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46], referred to in Spencer at [24] (per French CJ and Gummow J).

Relevant principles – Striking out

99    Rule 16.02 of the Rules provides, amongst other things, that a pleading, including a defence must: be as brief as the nature of the case permits; identify the issues that the party wants the Court to resolve; state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against the party at trial, but not the evidence by which the material facts are to be proved; not contain any scandalous, frivolous or vexatious material; not be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay; not fail to disclose, relevantly, a reasonable cause of action appropriate to the nature of the pleading; and not otherwise be an abuse of the process of the Court. It is well established, in this context, that material facts must be pleaded with a degree of specificity which is sufficient to convey to the opposite party the case that that party has to meet and that a “bare conclusion” is ordinarily not a proper allegation: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 at 235.

100    Rule 16.21 of the Rules provides, in effect, the remedy of striking out a pleading, or any part of it, which fails to meet any of the requirements in r 16.02.

101    Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the FCA Act, which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

102    The grounds upon which a pleading can be struck out under r 16.21 of the Rules correspond, to a large extent, with the grounds upon which a proceeding may be summarily dismissed under s 31A of the FCA Act and r 26.01 of the Rules. The Court will proceed to strike out under r 16.21, rather than summarily dismiss the proceeding under r 26.01 of the Rules, where although there are deficiencies in the pleading, a reasonable case may still exist. The granting of leave to replead in those circumstances may allow the applicant to remedy the deficiencies.

103    The word “vexatious” in the context of rules such as r 16.21 is an “omnibus expression” that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing or the inclusion of which is otherwise an abuse of the processes of the Court: Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 per Starke J, with whom Crockett and Beach JJ agreed at [12]) referred to with approval in Matthews v State of Queensland [2015] FCA 1488 at [87]. Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are “obviously untenable or manifestly groundless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491-492; see also Von Reisner v Commonwealth (2009) 177 FCR 531 at [27].

104    The mere allegation of a scandalous fact does not necessarily render the pleading liable to be struck out as scandalous. Material which is degrading, and therefore scandalous, will not be struck out unless it is also irrelevant: Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25]. Scandal, in the context of r 16.21 of the Rules, means “the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause” and “any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual”: Cavill at [25].

105    A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 638; ATPR 41-434; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [18]; Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; 51 ACSR 278 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.

106    A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms (2012) 247 FCR 440 at [80], [84]. A party cannot be expected to respond to mere context, commentary, history, narrative material or material of a general evidentiary nature: Fuller v Toms at [83].

107    A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd v Pearce [1996] FCA 599; 138 ALR 522 at 531.

108    A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 at [42]-[43]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Allstate at 236.

109    If substantial parts of a pleading are struck out, the Court may strike out the entire pleading on the basis that the residue would be confusing: Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd [1998] FCA 791; 157 ALR 135 at 153-154.

110    Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency: Allstate at 236. The power is discretionary and should be employed sparingly and only in a clear case “lest one deprive a party of a case which in justice it ought to be able to bring”: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175.

Relevant principles – Abuse of process and permanent stay

111    As has already been noted, the Court has the power to summarily dismiss a proceeding pursuant to s 31A of the FCA Act and r 26.01 of the Rules, or strike out a pleading pursuant to r 16.21 of the Rules, if the proceeding, or the pleading, as the case may be, is an abuse of process of the Court. The Court, as a superior court, also has the power to permanently stay a proceeding which is an abuse of its processes: Williams v Spautz (1992) 174 CLR 509 at 518.

112    The concept of abuse of process is flexible and insusceptible of a formulation which comprises closed categories; it applies in any circumstances in which the Court’s processes are used for an illegitimate purpose, or are used in a way which would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25]; Rogers v The Queen (1994) 181 CLR 251 at 255-256, 286. It is unnecessary to consider the many circumstances which may, or have been found to, amount to an abuse of process. It suffices to refer to one circumstance which is of particular relevance to this case.

113    The making of a claim or the raising of an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process, even where the earlier proceeding might not have given rise to an estoppel: Tomlinson at [26]; UBS AG v Tyne (2018) 265 CLR 77 at [43], [68]. The rationale underlying the application of the concept of abuse of process in this context is that there should be finality in litigation and that “a party should not be twice vexed in the same matter”: UBS AG at [66] (per Gageler J) referring to Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.

THE PARTIES’ CONTENTIONS

114    The Commonwealth contended that the serious allegations levelled against it in Dr Chandrasekaran’s pleading are required to be pleaded with specificity and particularity, yet they are pleaded in such a way as to amount to nothing more than bare and general assertions or speculation. It pointed out, in that regard, that the Commonwealth is a body politic which can only act through individuals, and can only have knowledge attributed to it on the basis of the state of mind of individuals, and yet Dr Chandrasekaran’s pleading does not identify any individual or individuals whose relevant acts and knowledge could be attributed to the Commonwealth. The Commonwealth also submitted that the causes of action referred to in the pleading were not only obscure, but the essential elements of those causes of action had not been properly pleaded.

115    The Commonwealth relied on evidence which indicated that it had written to Dr Chandrasekaran very soon after she filed the first iteration of her pleading and identified the deficiencies in her pleading. The Commonwealth submitted that none of the deficiencies identified in that correspondence had been remedied in the pleading which was extant at the time of the hearing of the summary dismissal application. In the Commonwealth’s submission, Dr Chandrasekaran had been given ample opportunity to cure the pleading deficiencies but had not done so. It may be inferred that the deficiencies could not be remedied and that it would be pointless to give Dr Chandrasekaran any further opportunity to attempt to do so.

116    The Commonwealth submitted that, in all the circumstances, the Court should conclude that Dr Chandrasekaran had no reasonable prospects of successfully prosecuting the proceeding against it, that the proceeding is frivolous, vexatious and an abuse of process of the Court and that no reasonable cause of action against it is disclosed. It accordingly submitted that, pursuant to s 31A of the FCA Act, there should be judgment in its favour against Dr Chandrasekaran.

117    The State’s contentions were in many respects similar to the Commonwealth’s; though, as noted earlier, the State not only sought an order that summary judgment be entered against Dr Chandrasekaran, but in the alternative that her pleading be struck out. The State also sought an order, again in the alternative, that the proceeding be permanently stayed on the basis that it was an abuse of process.

118    Like the Commonwealth, the State contended that the pleading did not clearly state the material facts upon which Dr Chandrasekaran relied, but simply utilised generalisations, bald assertions or conclusions. The State also submitted that while certain individuals who were said to be employed by the State are identified in the pleading, it is difficult, if not impossible, to discern how the State is alleged to be responsible for the alleged actions of those individuals.

119    Also like the Commonwealth, the State analysed the various causes of action alleged against it in the pleading and submitted that no reasonable causes of action against it were disclosed. For the most part, the causes of action alleged were either not causes of action recognised in Australia, or, if they were, the elements of those causes of action had not been properly identified or pleaded.

120    The State relied on an additional ground for dismissing or permanently staying the proceeding. That additional ground was that many, if not most, of the allegations made against the State in this matter were essentially the same, or substantially the same, as the allegations made by Dr Chandrasekaran in the previous proceedings she commenced in this Court against the College, proceeding NSD 1535 of 2018. Moreover, the State contended that the proceedings that Dr Chandrasekaran had commenced in the Supreme Court of New South Wales against the Western Sydney Local Health District, proceeding 2018/177874, also included many of the same claims and allegations and were based on the same alleged substratum of facts. In those circumstances, it was submitted that this proceeding was an abuse of process. The evidence relied on by the State in support of its application primarily related to the nature of the claims made in the proceedings in the Supreme Court.

121    Like the State, AC3 not only sought an order that Dr Chandrasekaran’s proceeding against it be summarily dismissed pursuant to s 31A of the FCA Act and r 26.01 of the Rules, but also sought an order, in the alternative, that her pleading be struck out pursuant to r 16.21 of the Rules. Unlike both the Commonwealth and the State, AC3’s principal argument that summary judgment should be entered against Dr Chandrasekaran was that evidence that it had adduced directly contradicted the central hypothesis upon which Dr Chandrasekaran’s case against AC3 was based. That evidence was essentially unchallenged and unanswered by Dr Chandrasekaran. In those circumstances, AC3 submitted that Dr Chandrasekaran had no reasonable prospect of successfully prosecuting her case against it.

122    As discussed earlier, Dr Chandrasekaran’s pleaded case against AC3 is based on the claim that AC3 is or has been involved in accessing her confidential communications. That allegation is essentially based on the claim that IP addresses associated with AC3 appear in certain reports which Dr Chandrasekaran has produced which purport to record all of the instances where emails she has sent to certain people have been “opened”. The unchallenged affidavit evidence of Mr Damien Luke, the Cyber Security Practice Manager at AC3, is that the fact that IP addresses associated with AC3 may appear in Dr Chandrasekaran’s reports is simply a product of the fact that AC3 provides “web” or “cloud” based internet services to State bodies or entities, including the Crown Solicitor’s Office and the Medical Council. The presence of AC3’s IP address demonstrates no more than that Dr Chandrasekaran’s emails had been read by officers or employees of those bodies. It accordingly provides no basis for Dr Chandrasekaran’s hypothesis that the presence of those IP addresses is capable of proving that officers or employees of AC3 intercepted or stored Dr Chandrasekaran’s emails, or provided them to “third parties” without Dr Chandrasekaran’s authority.

123    Even putting Mr Luke’s evidence to one side, AC3 submitted that Dr Chandrasekaran’s pleaded case against it did not disclose a reasonable cause of action, lacked a proper factual and legal foundation and was frivolous or vexatious. Like the Commonwealth and the State, AC3 pointed to the fact that most of the factual allegations that Dr Chandrasekaran made against it were entirely unparticularised and devoid of detail. Like the State, AC3 submitted that the cause of action in bailment, or in negligence based on bailment, was not available having regard to the nature of the factual allegations said to support it.

CONSIDERATION AND DETERMINATION

124    There is no question that the Court must exercise considerable caution before summarily dismissing a proceeding under s 31A of the FCA Act and r 26.01 of the Rules. There are nevertheless cases where that relief is appropriate. This is clearly such a case.

125    To allow this proceeding to be pursued would be to allow the Court’s processes to be abused. It would also be manifestly oppressive to each of the respondents. The proceeding is demonstrably vexatious. It is based on a series of sweeping and extremely serious allegations against the Commonwealth, the State and AC3 which are expressed at such a high level of generality, and include such limited detail and particulars that they could fairly be described as vexatious and scandalous. To make matters worse, no reasonable cause of action is pleaded or otherwise disclosed in any of the other material upon which Dr Chandrasekaran relied. The pleaded causes of action border on being nonsensical. It is, in all the circumstances, difficult to see how any of the respondents could understand or sensibly plead to or respond to the case which Dr Chandrasekaran seeks to pursue against them. Given the opportunities that Dr Chandrasekaran has had to plead and support her case properly to date, it is impossible to avoid the conclusion that Dr Chandrasekaran has no reasonable prospect of successfully prosecuting her case against any of the respondents.

126    While Dr Chandrasekaran’s pleaded cases against the Commonwealth, the State and AC3 are related and intertwined, it is appropriate to give some separate consideration to the deficiencies that exist in respect of the claims that are made against each of the parties. There are, however, some fundamental issues and problems that apply to the proceeding and the pleading generally.

127    The first issue or problem is that the Court’s jurisdiction to entertain this proceeding is tenuous, to say the very least. All of the causes of action that are now relied on by Dr Chandrasekaran are common law or general law equitable actions. None of them are causes of action under any Commonwealth statute. Nothing put on Dr Chandrasekaran’s behalf identified the basis of the Court’s jurisdiction to hear and determine the proceeding in those circumstances: cf s 19 of the FCA Act.

128    The Court’s original jurisdiction includes any matter in which an injunction is sought against an officer or officers of the Commonwealth: s 39B(1) of the Judiciary Act 1903 (Cth). The problem for Dr Chandrasekaran, however, is that while the relief sought in her originating application includes a permanent injunction “for harassment, stalking, gaslighting as a form of harassment and intimidation, breaches to privacy though the misuse and disclosure of personal information and intrusion upon seclusion, breaches in confidence, defamation, injurious falsehood, fraud, the intentional infliction of emotion[al] distress, conspiracy, breach of fiduciary duty [and] misfeasance in public office”, no injunction is sought against an officer or officers of the Commonwealth. That is no doubt because she is unable to identify any officer or officers of the Commonwealth who she alleges is responsible for any of the alleged wrongdoing. It should also be added that it is inconceivable that the Court would make an order against the Commonwealth or anyone else which is as broad and unconfined as the order sought in the originating application.

129    The second fundamental problem with the proceeding generally is that, even putting to one side for the moment the manifest deficiencies in the pleaded cases against each of the Commonwealth, the State and AC3, there is a sound basis for concluding that the proceeding is an abuse of process because of its parallels and relationship with the earlier proceedings in both this Court and the Supreme Court.

130    As discussed earlier, there is a clear and obvious overlap between the factual allegations made in this matter and the factual allegations made in both of the other proceedings. This was effectively conceded by Dr Chandrasekaran through her counsel. The common and underlying allegation in each of the proceedings is that Dr Chandrasekaran has been the subject of various forms of harassment, mostly by other doctors or psychiatrists, and that her private communications have been intercepted and used for that purpose. Initially, in the other procedings, Dr Chandrasekaran sought to make the employers of those psychiatrists, the Western Sydney Local Health District and (allegedly) the College, responsible for their alleged misbehaviour. In this proceeding, Dr Chandrasekaran seeks to make the State accountable for the actions of the doctors and psychiatrists. She also seeks to make the Commonwealth and AC3 accountable, ostensibly on the basis that they facilitated the actions of the doctors and psychiatrists by accessing and disclosing her private communications to the doctors and psychiatrists and apparently other unidentified third parties. That is also an allegation that she attempted to air in her earlier proceeding against the College. The clear and obvious overlap between this proceeding and the earlier proceeding against the College explains why Dr Chandrasekaran sought to rely in this proceeding on the affidavits she had earlier filed in her proceeding against the College.

131    Regardless of how one looks at it, it is appropriate to characterise this proceeding as effectively an expansion and escalation of the allegations made by Dr Chandrasekaran in the earlier proceedings. It was, in those circumstances, an abuse of process for Dr Chandrasekaran to commence these proceedings. To allow this proceeding to proceed further would be to allow a continuation of that abuse of process. Given the common underlying factual substratum, if Dr Chandrasekaran wanted to prosecute the Commonwealth, the State and AC3, she should have done so in either the existing Federal Court proceeding or the proceeding she had commenced in the Supreme Court. This case falls within the species of abuse of process considered in Tomlinson and UBS AG.

132    There is also a sound basis for concluding that Dr Chandrasekaran commenced this proceeding for an improper or illegitimate purpose. That purpose was to side-step or otherwise avoid the difficulties that she had encountered in the earlier two proceedings. As discussed earlier, Dr Chandrasekaran commenced this proceeding very shortly after she failed in her endeavour to join the Medical Council and the State in the Supreme Court proceeding and shortly after Flick J reserved his judgment in respect of the College’s application for summary dismissal. The available inference from the timing of the commencement of this proceeding and the commonality of the issues between the three sets of proceedings is obvious and inescapable. This is another basis for finding that the proceeding is an abuse of process.

133    The third fundamental problem that applies to Dr Chandrasekaran’s claims against each of the Commonwealth, the State and AC3 is exactly the same problem that was identified in Chandrasekaran No 1 and subsequently by Flick J in Chandrasekaran v College. The problem is that her allegations of tortious conduct and other common law causes of action against the Commonwealth, the State and AC3 are based on broad or sweeping assertions which are almost entirely devoid of any meaningful or satisfactory specificity or particularity. The causes of action themselves are equally amorphous and devoid of any proper particularisation or specificity. It is unnecessary to repeat what has already been said at length on this topic. The difficulty that this presents is that it is impossible to see how the Commonwealth, the State and AC3 could be expected to understand and respond to the case that Dr Chandrasekaran seeks to put against them. As discussed in the context of the case against AC3, in the one instance where Dr Chandrasekaran provided particulars of a specific communication which was alleged to have been improperly dealt with by AC3, AC3 was able to adduce evidence on this application which effectively demonstrated that the specific allegation was baseless. It was, and is, effectively impossible for the Commonwealth, the State and AC3 to respond in the same way to the other unparticularised allegations.

134    Dr Chandrasekaran was made aware at the very outset, when her interlocutory application was dismissed in Chandrasekaran No 1, that her attempts to rely on broad and inadequately particularised allegations, supported by nothing more than her bald assertions and speculation, would most likely be unsuccessful. She has had ample opportunities to correct this manifest deficiency. The current pleading is Dr Chandrasekaran’s fourth attempt to plead her case properly. It is the first pleading that was supposedly drafted and certified by a legal practitioner. It is, with the greatest respect to the lawyers said to be responsible for the drafting, certification and defence of the current pleading, difficult to see how any competent lawyer could associate himself or herself with it. If anything, the current pleading is even more devoid of adequate particulars than its previous iterations, though it is at least shorter and narrower in compass and scope. There is, in all the circumstances, absolutely no basis for thinking that giving Dr Chandrasekaran or her lawyers a further opportunity to attempt to plead her case would be likely to achieve any better result.

135    This is also not simply a pleading issue or problem. Dr Chandrasekaran has sworn and filed numerous lengthy affidavits in this proceeding. As events transpired, only a very small portion of one of those affidavits was relied on by her in her defence of the summary dismissal applications. That was the portion of one of her affidavits that directly related to her claim against AC3. Even putting the pleading to one side, if Dr Chandrasekaran was able to provide proper particulars and details of any of the serious allegations she has made, one would expect to find something to that effect in one of her many affidavits. Yet counsel for Dr Chandrasekaran was unable to take the Court to any evidence which amounted to anything more than bare assertion or speculation, or any evidence which was capable of adding any proper, satisfactory or adequate detail or particularisation to the generalised and sweeping allegations found in the pleading. The available, indeed inescapable, inference from Dr Chandrasekaran’s inability to articulate her claims with any degree of acceptable or appropriate detail and specificity is that Dr Chandrasekaran simply has no reasonable prospect of successfully prosecuting any case against the Commonwealth, the State or AC3.

136    As Lindgren J observed in White Industries at [47], a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”. This is demonstrably such a case.

137    The fourth fundamental problem is that there is not one single cause of action which is properly pleaded against any of the Commonwealth, the State or AC3. Given the opportunities that Dr Chandrasekaran and her lawyers have been given to remedy this obvious deficiency in her pleading to date, there is no reason to suppose that Dr Chandrasekaran or her lawyers will be able to remedy it if given yet another opportunity. The deficiencies with the presently pleaded causes of action against each of the Commonwealth, the State and AC3 are best considered separately.

Dr Chandrasekaran’s case against the Commonwealth

138    The serious allegations that Dr Chandrasekaran makes against the Commonwealth and the fact that they are almost entirely devoid of any sensible, meaningful and satisfactory detail and particularisation has already been the subject of detailed consideration. It is unnecessary to rehearse what has already been said in that regard. The current pleading manifestly fails to identify and plead any material facts, as opposed to conclusion and speculation, which would enable the Commonwealth to understand and respond to the case sought to be made against it. Nor is it possible to discern the material facts from the many affidavits that Dr Chandrasekaran has filed. Dr Chandrasekaran did not adduce any evidence in defence of the summary dismissal application which was capable of remedying this deficiency in her pleaded case.

139    The pleading also does not disclose any reasonable cause of action against the Commonwealth. As discussed in detail earlier, it is possible to discern four potential causes of action: breach of confidence; breach of privacy; bailment or negligence as bailee; and intentional infliction of harm. Not one of those causes of action, however, is properly pleaded. Nor is it possible to discern from the pleading or the evidence relied on by Dr Chandrasekaran any material facts which, if proved, would be capable of establishing any of the postulated causes of action.

140    The fundamental problem with the pleaded cause of action for breach of confidence is that nowhere does Dr Chandrasekaran identify with any specificity the confidential information that she alleges the Commonwealth has or threatens to misuse. It is impermissible for Dr Chandrasekaran to endeavour to make out this cause of action on the basis of global descriptions such as “[p]ersonal and confidential information of the Applicant”, or “[i]nformation private to the Applicant”, or “[i]ntangible property of the Applicant” or “[i]nformation of a fiduciary character”: FASC [4]. Nor is it open to Dr Chandrasekaran to simply tender individual emails in an attempt to specify the confidential information said to be the subject-matter of this cause of action. It would be vexatious and oppressive to permit Dr Chandrasekaran to prosecute a cause of action for breach of confidence in the complete absence of any specification of the confidential information.

141    It should also be observed that the cause of action for breach of confidence is ordinarily employed where one person imparts information to another person in such circumstances as to import a duty or obligation of confidence and the person who receives the information then breaches, or threatens to breach, that duty or obligation. That is not how Dr Chandrasekaran puts her case against the Commonwealth. She does not suggest that she imparted any information to the Commonwealth in circumstances which imported an obligation of confidence. She simply asserts, in a global way, that the Commonwealth has unlawfully intercepted her private communications to others.

142    The fundamental problem with the purported cause of action for breach of privacy is that there is no recognised tort or other common law action for breach of privacy in Australia. It is true, as was submitted on Dr Chandrasekaran’s behalf, that summary processes must generally not be employed to “stultify the development of the law” and that consideration should be given to the possibility that existing authority may be “overruled, qualified or further explained”: Spencer at [25] (per French CJ and Gummow J). Dr Chandrasekaran did not, however, advance any submissions at all about existing authority and how it might possibly be overruled, qualified or further explained in her case. More fundamentally, the complete lack of any specificity and particularity in pleading concerning this cause of action and the material facts said to support it make it a manifestly inappropriate vehicle for any development of the law in this area.

143    There are a number of fundamental deficiencies in relation to the purported cause of action in bailment or negligence.

144    First, the weight of authority is firmly against the proposition that information, which is said to be the “intangible property” the subject of the alleged bailment, can be the subject of a bailment: Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525 at 534-535; Breen v Williams (1996) 186 CLR 71 at 81, 90; Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158 at [120]; see also Palmer NE, Bailment (1991, Sweet & Maxwell, 2nd ed) at 7. In any event, there is a complete absence of any proper particulars of the information or “intangible property” which is alleged to be the subject of the bailment.

145    Second, the apparent allegation that when the Commonwealth “collected” the (unspecified) information it became a bailee of that information and assumed responsibility to keep it safe or to redeliver or deal with it in a stipulated way (cf Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 238) borders on the fanciful.

146    Third, it is entirely unclear how it is alleged that the Commonwealth was negligent or breached the duty of care it allegedly assumed when it became bailee of Dr Chandrasekaran’s information. Dr Chandrasekaran’s case appears to be that the Commonwealth deliberately, not negligently, disclosed her information to third parties.

147    Fourth, Dr Chandrasekaran’s case is not that the “intangible property” which was supposedly the subject of the alleged bailment was damaged (or impaired or altered), negligently or otherwise, but that she was somehow harmed by the disclosure of the information. This case, as pleaded, is not at all akin to cases where property the subject of a bailment has been damaged while in the bailee’s possession.

148    In all the circumstances, it is impossible to conclude other than that there is no reasonable cause of action against the Commonwealth in bailment or negligence. Nor are any there any material facts identified in the pleading or elsewhere which could possibly support any such cause of action. It would be manifestly oppressive and vexatious to allow Dr Chandrasekaran to prosecute such a cause of action based on a global assertion of the existence of a bailment of unspecified information.

149    The pleading of Dr Chandrasekaran’s case based on Wilkinson v Downton is also plainly deficient. The five essential elements of that cause of action outlined earlier in these reasons are not properly pleaded or identified. More fundamentally, the material facts said to support this cause of action are not satisfactorily pleaded or identified. Dr Chandrasekaran’s case in respect of this cause of action is based on the assertion that Dr Boman, who she alleges was employed by Defence, made intentionally false representations. No specific representation is identified in the pleading. Nor is it alleged, in respect of any specific representation or generally, that Dr Boman made the representation with the intention of causing Dr Chandrasekaran physical or psychiatric harm, or that she in fact suffered any such harm (not being mere distress) or that the false statement was likely to have caused such harm in a normal person.

150    It would plainly be vexatious and oppressive to permit Dr Chandrasekaran to prosecute this purported cause of action on the basis of a global and entirely unparticularised assertion that Dr Boman made many false representations over an unspecified period of time.

151    Dr Chandrasekaran’s counsel sought to defeat the Commonwealth’s application for summary dismissal on two main bases.

152    First, he contended that by consenting to the filing of the further amended statement of claim, which was first proffered well after the Commonwealth had applied to summarily dismiss the proceeding, the Commonwealth effectively waived or abandoned any complaint concerning the pleading. That contention plainly misrepresented the basis of the Commonwealth’s non-opposition to the grant of leave to file the further amended statement of claim, which was expressly made on the basis that it was without prejudice to the Commonwealth’s contention that the proceeding has no reasonable prospect of success and should be summarily dismissed. By consenting to the filing of the new pleading, the Commonwealth did not thereby abandon any right to submit that the new pleading was deficient and defective. In any event, the Commonwealth’s case for summary dismissal went well beyond mere pleading issues.

153    Second, counsel contended, in effect, that the Commonwealth’s application must fail because it was unsupported by evidence. That was not strictly correct, because the application was supported by affidavit evidence from a solicitor which annexed correspondence to Dr Chandrasekaran which identified deficiencies and defects in her case against the Commonwealth. More fundamentally, the contention was based on the erroneous premise that a proceeding can only be summarily dismissed where there is “unanswerable or unanswered evidence of a fact fatal to the pleaded case”: cf Spencer at [22]. As discussed in detail earlier, that is not the only basis upon which a proceeding can be summarily dismissed under s 31A of the FCA Act and r 26.01 of the Rules. A proceeding can also be summarily dismissed where the pleadings disclose no reasonable cause of action and that deficiency is incurable, or where the proceeding is frivolous or vexatious or an abuse of process or where it can otherwise be demonstrated that there is no reasonable prospect of the proceeding being successfully prosecuted.

154    The Commonwealth’s written and oral submissions made it manifestly clear that its contention that Dr Chandrasekaran had no reasonable prospect of successfully prosecuting the proceeding was not based on the existence of unanswerable or unanswered evidence, but was based on the fact that there was no reasonable cause of action disclosed in the pleading and that the proceeding is frivolous or vexatious and an abuse of process. The Commonwealth submitted that no reasonable cause of action was disclosed and that the proceeding was frivolous, vexatious and an abuse of process essentially because the underlying allegations against it amounted to nothing more than bare assertion and speculation and were entirely devoid of any satisfactory particulars or specification of material facts. For the reasons already given, those submissions must be and are accepted.

155    It is, in all the circumstances, appropriate to order that judgment be given in favour of the Commonwealth against Dr Chandrasekaran pursuant to s 31A of the FCA Act and r 26.01 of the Rules.

156    It should also be noted that, even if this was not an appropriate case for the summary dismissal of Dr Chandrasekaran’s proceeding against the Commonwealth, it would in any event be entirely appropriate to strike out her pleading as against the Commonwealth in its entirety. While the Commonwealth’s interlocutory application did not clearly seek an order striking out the pleading, it did seek “[s]uch further or other order as this Court sees fit”. Dr Chandrasekaran was also plainly on notice that the Commonwealth contended that her pleading was manifestly deficient.

157    It would be appropriate to strike out the pleading as against the Commonwealth because it contains scandalous, frivolous and vexatious material, is evasive and ambiguous, is likely to cause prejudice and embarrassment in the proceeding, fails to disclose a reasonable cause of action and is otherwise an abuse of process of the Court. If the pleading was struck out in those circumstances, it would not be appropriate to grant Dr Chandrasekaran leave to replead, particularly given the history of the matter, at least unless or until she paid the Commonwealth’s costs and was able to proffer a pleading which complied with r 16.02 of the Rules.

158    For the reasons already given, however, the available and preferable course is to summarily dismiss Dr Chandrasekaran’s claim against the Commonwealth.

Dr Chandrasekaran’s case against the State

159    The fundamental difficulty with Dr Chandrasekaran’s case against the State is that it is based on essentially the same allegations against the same doctors that are made in both her proceeding in this Court against the College (NSD 1535 of 2018) and, albeit perhaps to a lesser extent, her Supreme Court proceeding against the Western Sydney Local Health District. It was, and is, an abuse of process for Dr Chandrasekaran to make those allegations in this proceeding in circumstances where they already had been, or perhaps should have been, raised for determination in the other earlier proceedings.

160    Dr Chandrasekaran also commenced this proceeding within weeks of her unsuccessful application to join the State in the proceeding in the Supreme Court and within weeks of the hearing of the application for summary dismissal in her proceeding against the College. That, amongst other things, is a sound basis for inferring that this proceeding was commended for an improper purpose, being to side-step the difficulties being encountered by her in the other proceedings. That again supports a finding of abuse of process.

161    It is unnecessary to repeat what has already been said concerning abuse of process. Even putting abuse of process to one side, there are other fundamental difficulties and problems with Dr Chandrasekaran’s proceeding against the State.

162    The first difficulty is that no reasonable cause of action is disclosed against the State in either the pleading or any of the material filed and relied on by Dr Chandrasekaran.

163    As discussed in detail earlier, there are, at best, two causes of action against the State disclosed in the pleading. The first cause of action is, or purports to be, an action for injurious falsehood. The fundamental difficulty with that cause of action is that Dr Chandrasekaran has made no attempt whatsoever to plead or particularise properly the alleged false representations or “slanders” that are central and essential to this cause of action. The extent of the particularisation is that the representations (it is unclear how many) have been made “[s]ince at least 2012”, that they were made by five named doctors, that they were published to “other medical officers” and that they involved or concerned a range of matters concerning Dr Chandrasekaran.

164    It would, in all the circumstances, be oppressive and vexatious for Dr Chandrasekaran to prosecute this cause of action without providing proper particulars about the alleged false representations. Those particulars would have to include, at a minimum: the substance of each representation; the date that each such representation was made, how it was made, who made it and to whom it was made; and the basis upon which it is contended that the representation was false. Counsel for Dr Chandrasekaran conceded that those matters would need to be specifically pleaded and that the pleading was “formally deficient” because they were not.

165    The difficulty for Dr Chandrasekaran is that, given the long history of not only this matter, but also her earlier proceeding against the College in this Court and her proceeding against the Western Sydney Local Health District in the Supreme Court, it is well and truly open to infer that this fundamental deficiency in the pleading of this cause of action is not able to be remedied. The Court was not taken to any parts of any of the voluminous affidavits that Dr Chandrasekaran has sworn so as to demonstrate that she will be able to provide any satisfactory detail or particulars concerning the alleged representations. The available inference in the circumstances is that she is unable to provide any such particulars.

166    There are other difficulties with the pleaded cause of action for injurious falsehood. The pleading fails to plead other essential elements of the cause of action, including that the allegedly false statements concerned Dr Chandrasekaran’s business, that the makers of the statement were actuated by malice and that Dr Chandrasekeran suffered actual damage. Given the history of this and the other matters in which Dr Chandrasekaran has made the same or similar allegations against the relevant doctors, there is no basis for concluding that these deficiencies are able to be remedied.

167    The other purported cause of action against the State is equally problematic. The following brief points may be made about it.

168    First, if a “falsified expert witness report” was indeed relied upon in the Supreme Court proceeding, that is plainly a matter that should pursued in that proceeding.

169    Second, it would appear that that allegation has in fact been made in the Supreme Court proceeding. It would, in those circumstances, plainly be an abuse of process and vexatious and oppressive for it also to be raised in this proceeding.

170    Third, and in any event, the assertion that the Crown Solicitor’s Office and any solicitor employed or retained by it somehow owed Dr Chandrasekaran a duty of care in the circumstances is an assertion that would appear to be entirely without merit.

171    Fourth, the pleading of this cause of action is, in any event, manifestly deficient. Amongst other things, the basis upon which the alleged duty of care is alleged to have been breached is entirely unclear. Indeed, the allegation appears to be not so much a negligent breach of a duty of care, but an intentional and deliberate fraud. That is apparent not just from the use of the words “consistent with fraud”, but also from the allegation that the allegedly falsified expert witness report was relied on “in retaliation”, the allegation that the report was relied on “in the hope of fooling the [C]ourt” and the allegation that the two named lawyers knew that the “representations” in the report were false. Those allegations, if made out, would amount to a contempt. The attempt to shoehorn those claims into a cause of action for negligence is absurd.

172    Those difficulties with the purported cause of action are fundamental. There is no basis for finding other than that they are unable to be remedied.

173    It is, in all the circumstances, appropriate to order that judgment be given in favour of the State against Dr Chandrasekaran pursuant to s 31A of the FCA Act and r 26.01 of the Rules.

174    As was the case with the proceeding against the Commonwealth, even if, contrary to the conclusion that has been reached, it was not appropriate to summarily dismiss Dr Chandrasekaran’s proceeding against the State, it would in any event be appropriate to strike out her pleading against the State in its entirety. That is because it contains scandalous, frivolous and vexatious material, is evasive and ambiguous, is likely to cause prejudice and embarrassment in the proceeding, fails to disclose a reasonable cause of action and is otherwise an abuse of process of the Court. If the pleading was struck out in those circumstances, it would not be appropriate to grant Dr Chandrasekaran leave to replead, particularly given the history of the matter, at least unless or until she paid the State’s costs and was able to proffer a pleading which complied with r 16.02 of the Rules.

Summary dismissal of the claim against AC3

175    The question of the summary dismissal of Dr Chandrasekaran’s case against AC3 is in a slightly different category. That is because, as adverted to previously, AC3 relied on evidence, which was effectively unchallenged and unanswered, that was fatal to Dr Chandrasekaran’s case. Before addressing that issue, it is useful to identify first a number of other fundamental problems and deficiencies in Dr Chandrasekaran’s pleaded case against AC3.

176    There is only one identified or identifiable cause of action against AC3. That cause of action is a cause of action in bailment, or a cause of action in negligence for breach of a duty of care said to arise by reason of AC3 being a bailee of Dr Chandrasekaran’s “intangible property”. The fundamental problems with that cause of action are the same as those considered earlier in the context of the bailment or negligence cause of action pleaded against the State.

177    First, the weight of authority is firmly against the proposition that information, which is said to be the relevant “intangible property” the subject of the alleged bailment, can be the subject of a bailment.

178    Second, the contention that, by reason of the fact that it provided computer or internet services to departments or agencies of the State, AC3 somehow became the bailee for reward of Dr Chandrasekaran’s “intangible property”, and thereby owed her a duty of care or obligation to keep that information safe and redeliver or deal with it in accordance with the bailment, is fanciful.

179    Third, the apparent contention that AC3 breached that duty by somehow damaging the “intangible property … by disclosure to third parties” (see FASC [32]) is equally absurd. It is also inconsistent with the balance of the pleaded case against AC3, which is that the damage from the alleged disclosure of Dr Chandrasekaran’s information was not damage to the property, but damage caused to Dr Chandrasekaran.

180    Fourth, aside from the specific reference to Dr Chandrasekaran’s email to the Medical Council dated 21 June 2019, there is a complete absence of any proper particulars of the information or “intangible property” which is alleged to be the subject of the bailment. The specific reference to the 21 June 2019 email does not assist. Dr Chandrasekaran made no attempt to identify any information in that email which could sensibly be characterised as “intangible property” that could be the subject of a bailment.

181    The pleading fails to disclose any reasonable cause of action against AC3, in bailment, negligence or otherwise.

182    There is, in any event, another sound basis for concluding that Dr Chandrasekaran has no reasonable prospect of prosecuting the proceeding as against AC3. That is because, as discussed in detail earlier, Dr Chandrasekaran’s case against AC3 relies on the contention that AC3 not only received, or had forwarded to it, Dr Chandrasekaran’s emails, but that it disclosed or transferred her emails to unspecified or unidentified third parties. The evidence filed by Dr Chandrasekaran reveals that her contention that AC3 disclosed or transferred her emails to third parties is based entirely on reports generated by her which purport to trace or track access to her emails. Those reports refer to AC3’s IP address.

183    The fundamental problem for Dr Chandrasekaran is that that the evidence adduced on this application by AC3, which was not relevantly challenged or answered by Dr Chandrasekaran, clearly establishes that the references to AC3’s IP address in Dr Chandrasekaran’s reports are entirely consistent with the recipient of Dr Chandrasekaran’s emails reading the emails and forwarding them to other officers within the relevant State departments or agencies. In the specific case of Dr Chandrasekaran’s email dated 21 June 2019 to the Medical Council, the reference to AC3’s IP address in Dr Chandrasekaran’s report is consistent with the addressee of that email opening it and subsequently forwarding it to other officers in the Department of Communities and Justice, including officers in the Crown Solicitor’s Office. That could not sensibly be considered to amount to AC3 disclosing the email to third parties. Plainly the recipient of the email was lawfully and legitimately able to forward it to other officers in the department and the department’s lawyers.

184    It follows that the hypothesis that underlies Dr Chandrasekaran’s case against AC3 is fundamentally flawed. Beyond that, Dr Chandrasekaran’s case is based on nothing more than speculation or bare assertion. As previously noted, Dr Chandrasekaran did not challenge or provide any answer to AC3’s evidence which explained the presence of its IP address in her reports.

185    The balance of Dr Chandrasekaran’s pleaded case against AC3 is manifestly vexatious and oppressive. It is vexatious and oppressive to provide no particulars whatsoever of the “further personal, confidential, private and / or privileged information” which is the subject-matter of the broader allegation of “breach of duty”: FASC [36]. The bizarre allegations based on Dr Chandrasekaran’s speculative claim that there is some sort of agreement between AC3 and Defence are obviously untenable and manifestly groundless. They are, in any event, not pleaded in support of any identified or identifiable cause of action and for that reason alone can be regarded as frivolous and embarrassing.

186    It is, in all the circumstances, appropriate to order that judgment be given in favour of AC3 and against Dr Chandrasekaran pursuant to s 31A of the FCA Act and r 26.01 of the Rules.

187    For the same reasons as those given earlier in the context of Dr Chandrasekaran’s case against the Commonwealth and the State, even if, contrary to the conclusion that has been reached, it was not appropriate to summarily dismiss Dr Chandrasekaran’s proceeding against the AC3, it would in any event be appropriate to strike out her pleading against AC3 in its entirety. It would also not be appropriate to grant Dr Chandrasekaran leave to replead against AC3, particularly given the history of the matter, at least unless or until she paid AC3’s costs and was able to proffer a pleading which complied with r 16.02 of the Rules. In any event, for the reasons already given, the most appropriate course is to summarily dismiss the proceeding as against AC3.

Summary and conclusion

188    Dr Chandrasekaran has no reasonable prospect of successfully prosecuting the proceeding as against the Commonwealth, the State and AC3. The proceeding is also an abuse of the processes of the Court, discloses no reasonable cause of action and is frivolous and vexatious. Judgment should be given against Dr Chandrasekaran pursuant to s 31A of the FCA Act and r 26.01 of the Rules. Dr Chandrasekaran should also be ordered to pay the Commonwealth’s, the State’s and AC3’s costs of the proceeding to date.

DISPOSITION

189    Orders will be made that judgment be entered against the applicant and that the applicant pay the respondents’ costs of the proceeding.

Associate:

Dated:    11 November 2020