Federal Court of Australia

Chandrasekaran v Commonwealth of Australia [2021] FCA 481

ORDERS

THE COURT ORDERS THAT:

1.    The application that the Court be reconstituted is rejected.

2.    Leave to appeal is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the Respondents, either as taxed or agreed.

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

REASONS FOR JUDGMENT

FLICK J:

1    On 14 June 2019 the Applicant in the present proceeding, Dr Sujatha Chandrasekaran, filed an Originating Application in this Court. The First Respondent was named as the Commonwealth of Australia; the Second Respondent was named as the State of New South Wales.

2    The progress of that proceeding culminated in the filing of a Further Amended Statement of Claim dated 20 November 2019. The Third Respondent named in that pleading was the Australian Centre for Advanced Computing and Communications Pty Ltd.

3    On 11 November 2020 a Judge of this Court published reasons for decision, entering judgment in favour of all three Respondents pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”), and ordering Dr Chandrasekaran to pay costs: Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629. The primary Judge had previously published another decision in the same proceeding: Chandrasekaran v Commonwealth of Australia [2019] FCA 1169. The other decision in the proceeding was that of the duty Judge: Chandrasekaran v Commonwealth of Australia (No 2) [2019] FCA 1490.

4    On 25 November 2020, Dr Chandrasekaran filed an Application for leave to appeal from the judgment delivered earlier that month.

5    Leave is required to appeal from an interlocutory decision: Federal Court Act, s 24(1A). Section 24(1D)(b) provides that for the purposes of s 24(1A), “a decision granting or refusing summary judgment under section 31A” is “taken to be [an] interlocutory judgment”.

6    Leave, it is commonly said, may be refused where the decision sought to be challenged is not attendant with sufficient doubt and where the refusal of leave would not work any substantial injustice: e.g., National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 161 per Bowen J, Woodward and Lockhart JJ; Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 at [3], (2004) 63 IPR 373 at 375 per Black CJ and Stone J; Sandhurst Trustees Limited v Clarke [2015] FCAFC 21 at [17], (2015) 321 ALR 1 at 11 per Dowsett, Davies and Wigney JJ. The onus lies on the party seeking leave to appeal: cf. Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] per Foster J (“Khondoker”); SZSKO v Minister for Immigration and Border Protection [2014] FCA 105 at [26] per Cowdroy J; SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [8] per Flick J. “Bare assertions of error … will clearly be insufficient”: Nyoni v Chee Koon Hee (No 2) [2014] FCA 83 at [32] per McKerracher J.

7    When entertaining an application for leave to appeal it is important to recall that such an application should not be conducted as though it is a preliminary hearing of the appeal itself: Food Channel Network Pty Ltd v Television Food Network, G.P [2009] FCA 1446 at [26] per Reeves J (“Food Channel Network”); Petroulias v Commissioner of Taxation [2011] FCA 795 at [45], (2011) 84 ATR 110 at 122 to 123 per Reeves J; ACE Insurance Ltd v Trifunovski [2012] FCA 235 at [9], (2012) 291 ALR 46 at 49 per Flick J; Cash’s (Australia) Pty Ltd v Foster’s Australia Ltd [2013] FCA 695 at [5] per Davies J. In Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 (“Samsung v Apple”) at [50] Jacobson, Flick and Griffiths JJ cited the Food Channel Network decision and observed that it was “of importance to recall that applications for leave to appeal should not be transformed without good reason into de facto appeals. An application for leave should thus not be conducted as though it is a preliminary hearing of the appeal itself”.

8    Leave in the present proceeding is refused as it is respectfully concluded that the decision sought to be challenged is not attendant with any doubt – let alone sufficient doubt – to warrant leave being granted. The grant of leave, moreover, would work substantial injustice to the Respondents by exposing them to a proceeding which lacks any degree of certainty in the identification of the causes of action sought to be relied upon by Dr Chandrasekaran. Nor does she suffer any substantial injustice by reason of not pursuing a case which as pleaded has no – or little – chance of ultimate success.

9    An affidavit filed by Dr Chandrasekaran on 25 November 2020 seeks to challenge the conclusions of the primary Judge in respect to the causes of action alleging a breach of confidence and bailment. Irrespective of the merits of either of these arguments, such a focus of inquiry should not divert attention from the recurring concern expressed by the primary Judge as to both the manner in which the pleadings were drafted and the myriad of proposed Grounds of Appeal. But, given the emphasis placed upon these causes of action by Dr Chandrasekaran in her affidavit, each should be briefly addressed.

10    An application made during the course of the current hearing to rely upon an Expert Report prepared by a Mr Stephen New, being the principal of New IT Solutions, is rejected. That Report was not annexed to any affidavit prepared by Mr New but was annexed to an affidavit of Ms Chandrasekaran. Given the fact that Mr New has apparently been retained by Dr Chandrasekaran for some time, any reliance upon his expertise should have been availed of at a far earlier point of time. His Report, in any event, failed to comply with the requirements for an Expert Report.

11    Also to be rejected is an application that the Court be reconstituted. Although on one view, the application for the reconstitution of the Court could have (or even should have) been resolved at the outset, the course pursued has been to leave the resolution of this application to the end. The application for the reconstitution of the Court it was considered was best informed by reference to:

    the argument sought to be pursued on appeal, assuming leave to appeal were to be granted, and the reasons of the primary Judge; and

    the bases advanced by Dr Chandrasekaran in support of her application for reconstitution (or disqualification).

Breach of confidence

12    In her Further Amended Statement of Claim Dr Chandrasekaran sought to plead (inter alia) “breaches of confidence involv[ing] serious invasions to [her] privacy, intrud[ing] upon the Applicant’s seclusion…”. The Commonwealth of Australia was said to be the “manager and co-ordinator of the Department of Defence”. Part of the form of pleading as it came before the primary Judge were the following allegations (without alteration):

10.    The Department of Defence has and continues to access the Applicant’s material information held in her online accounts, telephonic communications, devices, bank accounts, intercepting her phone as a listening device and in the GPS tracking of her location, entering her lodgings and motor vehicle, intruding upon her seclusion to take photos of her, and has threatened to continue to do so.

11.    The material information obtained by Defence is confidential and imported in circumstances with an obligation of confidence. The material information is not for general or public use and only for the intended use of persons with whom the Applicant has been in direct communication. The information obtained through her devices including her location is private and not intended for use other than for the use and knowledge of the Applicant.

12.    As a result of the breach of breaches of duty of the First Respondent its servants or agents the Applicant has suffered loss and damage and unless prevented by this Honourable Court such loss and damage will continue.

13.    Further or alternatively, in the premises Defence breached its obligation of confidence to the Applicant by providing this information to others, including Dr Boman for the purposes of misuse.

14.    The use of the material information by Defence is unauthorised by the Applicant consistent with breaches of confidence since at least April 2012.

15.    The breaches of confidence involve serious invasions to the Applicant’s privacy, intrude upon the Applicant’s seclusion, have facilitated the public disclosure of private facts, have been used in a way to appropriate the Applicant’s communications and activities to portray her in a false light, and to create false communications and activities.

13    Dr Chandrasekaran’s affidavit in support of her application for leave contends, presumably in the form of a submission rather than evidence, that there “is a conflict with regards to the causes of action for breach of confidence summarised by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs provided at [45] of the judgment” being “at odds with the requirements of Wigney J at [141]…”.

14    The reference to the reasons of the primary Judge at [141] should be read in context. Part of that context is the following outline of this cause of action expressed at the outset of his Honour’s reasons:

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.

More directed to para [141] of the reasons is the context in which that paragraph appears, where his Honour is addressing the causes of action levelled against the First Respondent, the Commonwealth of Australia:

[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 v The Commonwealth (2010) 241 CLR 118] 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.

15    Notwithstanding the submission of Dr Chandrasekaran, there is considered to be no relevant “conflict” between the observations of Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 and those of the primary Judge. Both relevantly referred to, as Gummow J expressed it, the need to be “able to identify with specificity, and not merely in global terms, that which is said to be the information in question”. As the primary Judge expressed it, 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”.

16    The first of the two bases upon which leave to appeal is sought by Dr Chandrasekaran, namely, error on the part of the primary Judge in respect to the manner in which he approached the adequacy of her pleading seeking to allege a breach of confidence, is not attendant with sufficient doubt to warrant leave being granted.

17    Although Dr Chandrasekaran’s affidavit annexes a Schedule which seeks to identify the information the subject of the claim with greater specificity, the Schedule – with respect – fails to lead to any different conclusion. The Schedule, presumably, was sought to be relied upon to demonstrate the “substantial injustice” which would flow to Dr Chandrasekaran if leave were refused. Her submission was that, if given the opportunity to re-plead, the criticism of her former pleading could be rectified. But at least two difficulties stand in the path of that submission. First, no error is exposed by the primary Judge relying upon the form of the Further Amended Statement of Claim as it was when the interlocutory application came before the Court. The application for judgment pursuant to s 31A of the Federal Court Act was an application directed to that form of pleading and not some other as yet formulated pleading. Second, the Schedule itself would only be productive of further uncertainty and argument. It is difficult, for example, to characterise as confidential information a “booking ticket confirmation contained in” an email dated 27 September 2017.

18    It should also be noted that further submissions filed by Dr Chandrasekaran with the leave of the Court and dated 21 March 2021 take the matter no further. Specifically rejected is the submission there made that there has been “a grave injustice” occasioned to Dr Chandrasekaran by reason “the Respondents’ legal representatives [having and continuing] to be in direct communication with the 1st respondent, Defence.” The submission extended (inter alia) to a separate submission that the “Federal Court Registry has also been in direct communication with Defence…” No finding can be made that there has been any such “direct communication”.

Bailment

19    Another of the causes of action relied upon by Dr Chandrasekaran in her Further Amended Statement of Claim is a cause of action sought to be founded in the bailment of what she described as “intangible property”.

20    Part of that pleading, for example, was expressed as follows (without alteration):

27.    On or about 21 June 2019 the Applicant forwarded a confidential email to the Medical Council of NSW an agency of the Second Respondent and copied same to her then solicitor Mr Peter McKell [the Applicant’s June communication].

28.    The Applicant’s June communication contained information private to the Applicant, being information that was personal to her, confidential in is character, private in its terms and content and information that was privileged in the hands of her solicitor [the June material information].

29.    The June material information was and is the intangible property of the Applicant.

30.    Upon receipt of the June material information the Medical Council of NSW without the consent or authority of the Applicant transferred the information to AC3 which received the June material information for reward knowing from the face of the document that the material was personal, confidential, private and privileged and that it was the intangible property of the Applicant.

31.    Upon receipt of the June material information the Applicant became a bailee for reward of the intangible property of the Applicant in the said June material information.

32.    In the premises AC3 was under a duty of care to the Applicant not to damage the intangible property of the Applicant by disclosure to third parties or to act otherwise than with the authority and consent of the Applicant.

33.    Thereafter in breach of ACs duty to the Applicant without the consent or authority of the Applicant AC3 disclosed by transfer of the June material information to third parties on at least 56 occasions between 21 June 2019 and 13 July 2019.

21    The affidavit filed by Dr Chandrasekaran in support of her application for leave, again presumably by way of submission and not evidence, refers to authorities in support of her contention that “intangible property” can be the subject of a bailment.

22    In addressing the cause of action founded upon a bailment of “intangible property”, the primary Judge – again at the outset of his Honour’s reasons – expressed the following introductory remarks:

[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.

His Honour later returned to the reliance by Dr Chandrasekaran upon bailment and the allegations made against the Commonwealth and concluded:

[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.

23    The manner in which the primary Judge addressed and resolved the claims made by Dr Chandrasekaran and her reliance upon bailment again do not lead to any conclusion that leave to appeal is warranted.

24    This is so for at least two reasons.

25    First, and notwithstanding the authorities on which Dr Chandrasekaran relies to undermine the primary Judge’s conclusion at para [144], that conclusion is not attendant with sufficient doubt to warrant leave to appeal being granted. His Honour’s reliance (inter alia) upon Federal Commissioner of Taxation v United Aircraft Corporation (1943) 68 CLR 525 at 534 seems sound. The passage to which the primary Judge made reference comprised the following observations of Latham CJ:

… It was argued that the American Company transferred to the Australian Company information to be used by that Company in Australia for a minimum period of five years. It was said that this amounted to a transfer of property — a kind of bailment for five years. I am unable to regard the communication of information as constituting a transfer of property. Upon such a communication the transferor still has everything that he had before and the transferee continues to have what he has received even though the five-year period has elapsed, though he may be prevented from using the information, if a covenant not to use it throughout the indefinite future is not invalid as in unreasonable restraint of trade.

Knowledge is valuable, but knowledge is neither real nor personal property. A man with a richly stored mind is not for that reason a man of property. Authorities which relate to property in compositions, &c., belong to the law of copyright, and have no bearing upon the question whether knowledge or information, as such, is property. It is only in a loose, metaphorical sense that any knowledge as such can be said to be property. Either all knowledge is property, so that the teaching of, for example, mathematics, involves a transfer of property, or only some knowledge is property. If only some knowledge is property, then it must be possible to state a criterion which will distinguish between that knowledge which is property and that knowledge which is not property. The only criterion which has been suggested is the secrecy of the knowledge — it is said that the fact that knowledge is secret in some way creates a proprietary right in that knowledge. I confess myself completely unable to appreciate this proposition as a legal statement. …

Similarly, in Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158 at [120], (2009) 229 ALR 566 at 594 White J observed:

[120]    Nor was there a relationship of bailor and bailee between Mr Hoath or Mortgage on the one hand, and the defendants on the other hand, in respect of this property. Bailment is a relationship arising from the delivery of personal chattels, not intangible property

26    Second, and even if it be assumed that “intangible property” could be the subject of a bailment and further assumed that the first “deficiency” identified by the primary Judge in Dr Chandrasekaran’s pleading be attendant with “doubt”, Dr Chandrasekaran would then inevitably need to confront the further “deficiencies” set forth by the primary Judge at para [145] and onwards of his Honour’s reasons. And the identification of those further “deficiencies”, with respect, exposes no error.

27    A further obstacle in the path of Dr Chandrasekaran obtaining leave is the following further reason provided by the primary Judge:

[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.

This criticism of Dr Chandrasekaran’s claims is well-founded.

28    The second of the two submissions relied upon by Dr Chandrasekaran in her Affidavit, accordingly, does not warrant any grant of leave to appeal. The present application for leave to appeal, it is to be recalled, is not a “preliminary hearing of the appeal itself”: cf. Food Channel Network at [26]; Samsung v Apple at [50]. An application for leave to appeal is an opportunity for a party to demonstrate (inter alia) that the decision sought to be appealed is attendant with “sufficient doubt” to warrant the grant of leave. And Dr Chandrasekaran has failed to discharge this onus: cf. Khondoker at [56].

The form of pleadings

29    The criticisms made by the primary Judge as to the manner in which Dr Chandrasekaran sought to plead her claim in respect to confidential information (at [140]) and in respect to bailment (at [149]) are not the sole criticisms made. A more broadly based criticism was also directed to the form of her Further Amended Statement of Claim.

30    And it was a criticism made by the primary Judge from the outset.

31    Thus, for example, when dismissing her claim for interlocutory relief, the primary Judge had observed ([2019] FCA 1169):

[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.

[18]     Dr Chandrasekaran has also failed to demonstrate any prima facie case against the State. …

After referring to his earlier observations, the primary Judge in his reasons for decision the subject of the present application for leave to appeal noted:

[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. …

32    The primary Judge made the following more broadly expressed observations in respect to the Further Amended Statement of Claim:

[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.

33    These recurring observations of the primary Judge are, with respect, well-justified. The orders made pursuant to s 31A of the Federal Court Act expose no self-evident error such that they should be the subject of appeal.

34    Much the same conclusions were reached by the primary Judge in respect to the causes of action sought to be pursued against the Second Respondent, namely the State of New South Wales. As noted by the primary Judge, the State relied upon a submission expressed to be in the alternative that the proceeding “should be permanently stayed as an abuse of process”: [2020] FCA 1629 at [3]. In resolving the claims against the State, the primary Judge concluded (in part) as follows:

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. …

…

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

…

[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.

35    Again, the conclusions reached by the primary Judge expose no reason to doubt their correctness – including the conclusion that the continued pursuit of those causes of action would constitute an abuse of process. Little point is served by seeking to express in different terms the reasons and conclusions of the primary Judge. Concurrence is expressed with those reasons and conclusions.

Summary judgment v liberty to re-plead

36    But such reasons and conclusions leave open for resolution a question as to whether Dr Chandrasekaran should have been afforded a further opportunity to remedy the deficiencies in her pleadings as filed.

37    One option open to a primary judge, when confronted with circumstances in which the then form of pleading is manifestly deficient, is to consider whether the appropriate way forward is to grant liberty to re-plead as opposed to entering summary judgment.

38    Chronologically, the sequence of the pleadings was (in very summary form) as follows:

    the initial Statement of Claim was dated 12 August 2019;

    the Amended Statement of Claim was dated 9 September 2019; and

    the Further Amended Statement of Claim was dated 15 November 2019, with a further variant being dated 20 November 2019. The one dated 15 November 2019 was expressed to have been “prepared by Mr Peter King, lawyer”, albeit signed by another lawyer (Mr Davis); the one dated 20 November 2019 was expressed to have been “prepared by Mark Davis, lawyer”, and bore his signature.

The first hearing before the primary Judge was held on 11 November 2019 and thereafter being adjourned to 4 March 2020.

39    The question as to whether a further opportunity should be afforded to permit Dr Chandrasekaran to further amend her pleadings was a matter that occupied the attention of the primary Judge, as is self-evident from his Honour’s reasons (at para [174]).

40    One of the submissions presently relied upon by Dr Chandrasekaran is that the Further Amended Statement of Claim was nevertheless recognised as a pleading in need of further amendment and that the primary Judge erred in not affording her a further opportunity to re-plead.

41    The Further Amended Statement of Claim, as noted as follows by the primary Judge, followed upon the adjournment of the scheduled hearing in order to enable Dr Chandrasekaran’s Counsel the opportunity to draft or at least have an input into a proposed amendment:

[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.

His Honour then proceeded as follows to consider the utility in granting a further opportunity to amend as opposed to the course of entering summary judgment:

[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.

42    Had the primary Judge entered summary judgment without considering whether any further opportunity to re-plead should be extended to Dr Chandrasekaran, an argument could have been advanced that his Honour erred. But such is not the case. His Honour was confronted with circumstances in which Dr Chandrasekaran had:

    been afforded a number of opportunities to re-plead;

    had the benefit of lawyers in the drafting of the Further Amended Statement of Claim; and

    not asked for any adjournment of the proceeding before the primary Judge in order to provide a yet further variant of her pleadings.

In such circumstances, it was open to the primary Judge to form the view that there was “no basis for thinking” that any further variant of the pleading would produce “any better result” and to exercise his discretion and enter judgment.

43    The 21 March 2021 further submissions filed by Dr Chandrasekaran also maintained that the primary Judge erred in not permitting her liberty to re-plead. But one of the submissions there made by Dr Chandrasekaran was that where “there are factual issues in dispute, that are capable of being in dispute, summary dismissal cannot be awarded”. Reliance was placed in those further submissions upon Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 at 132. One of the difficulties confronting Dr Chandrasekaran was that her submission is not supported by the reasons of French CJ and Gummow J to which reference is made. Those reasons, when read in their broader context, were expressed as follows:

[25] … Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue. …

Fatal to Dr Chandrasekaran’s claims as sought to be advanced was not any assessment on the part of the primary Judge as to whether a particular fact or facts could be made out; that which underpinned the reasons of the primary Judge was the undisciplined manner in which the pleadings sought to set forth the facts.

44    The exercise of the discretion to enter summary judgment pursuant to s 31A of the Federal Court Act without affording a further opportunity to amend, it is thus concluded, was not an error.

The proposed Grounds of Appeal

45    If leave were to be granted, the proposed Notice of Appeal only invites a further and real and substantial concern that any appeal would not be focussed on a limited number of arguments, but would transcend into a wholesale challenge to the entirety – or, at least, a very substantial part – of the reasons for decision of the primary Judge.

46    If the proposed Grounds of Appeal are scrutinized there seems to remain little, according to Dr Chandrasekaran, that the primary Judge “got right”.

47    Although there may be cases in which an applicant seeking leave to appeal can justifiably canvass a myriad of issues, the broader the scope of attack sought to be mounted by an applicant, the more difficult may be the task of identifying with some degree of precision the central determination which arguably gives rise to “sufficient doubt” and potential injustice.

48    The proposed Grounds of Appeal sought to be pursued by Dr Chandrasekaran include challenges to the primary Judge’s:

    “rejecting hearsay evidence at an interlocutory hearing”; and

    “denying the Applicant leave to issue any subpoena”.

A challenge is also sought to be advanced on the basis that the primary Judge:

    “delivered [judgment] more than 12 months after [Dr Chandrasekaran] was able to file her evidence”.

49    Challenges to interlocutory decisions going to matters of practice and procedure, such as rulings as to the admissibility of evidence, attract well-founded caution on the part of a Judge called upon to resolve an appeal from such decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 393-394 per Wilcox and Gummow JJ.

50    The proposed Ground of Appeal directed to “delay” on the part of the primary Judge in delivering reasons for decision attracted some prominence during the course of oral submissions. Although an application for leave to appeal is not the occasion to resolve any one or other of the proposed Grounds of Appeal, the prominence given to the proposed Ground directed to delay in the delivery of judgment on the part of the primary Judge warrants (perhaps) some more detailed attention.

51    In resolving this submission, there is no relevant distinction between those submissions which were advanced on 4 March 2020 as opposed to 11 November 2019 – other than the extent of any perceived “delay”.

52    The starting point is to recognise that there is no universal approach which should be applied when entertaining a submission as to delay in the delivery of reasons for decision; delay of itself, however, is not a sufficient reason to grant either leave to appeal or to even allow an appeal: cf. NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [5], 228 CLR 470 at 473. Gleeson CJ there observed:

[5]    Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare…

See also: BIX15 v Minister for Immigration and Border Protection [2017] FCA 1116, (2017) 72 AAR 569. Markovic J there concluded that a 22 month delay did not deny a party procedural fairness.

53    Even if it were to be concluded that there had been “delay” on the part of the primary Judge in resolving the present proceeding – a conclusion which would not be self-evidently correct – any such “delay” would not have vitiated the decision the subject of the application for leave to appeal. In contrast to other cases, the present proceeding centred largely upon the adequacy of the pleadings in the Further Amended Statement of Claim as opposed to – for example – questions as to the credibility of witnesses or the demeanour of witnesses. There was limited evidence of relevance to the present proceeding and any “delay” in the resolution of what was largely uncontradicted evidence occasioned Dr Chandrasekaran little, if any, prejudice.

54    Even had leave been granted to appeal, the argument directed to delay would have been rejected.

55    If consideration were to be given to the myriad of other proposed Grounds of Appeal going beyond those expressly addressed by Dr Chandrasekaran in her affidavit and oral submissions, a decision to refuse leave to appeal is only further justified.

The Expert Report

56    The “expert report” sought to be relied upon for the purposes of the present application seeking leave to appeal, was a report prepared by Mr New. That Report concluded as follows:

Conclusion

There is no doubt that Dr Chandrasekaran’s accounts are being maliciously accessed/hacked since at least 2016.

Linked with this activity, is that her emails are being forwarded without her consent, and her personal accounts/services are the subject of an attack and unauthorised access through multiple methods of access, therefore her privacy is being breached in every way possible.

…

57    The admissibility and relevance of this Report was open to question. If it were sought to be tendered in support of the Application for leave to appeal or in support of the merit of any one or other of the arguments sought to be resolved, questions would arise as to whether it should have been adduced before the primary Judge. Mr New, it would appear, has been retained or available to provide assistance to Dr Chandrasekaran for some time prior to the hearing before his Honour. If it were tendered in support of the disqualification application, questions would arise as to whether the Report fell within s 79 of the Evidence Act 1995 (Cth).

58    Irrespective of whatever other obstacles may have confronted any reliance to be placed upon this Report, however, the Conclusion expressed does not address any of the bases upon which the primary Judge made orders entering summary judgment. A finding that the e-mails of Dr Chandrasekaran have been “hacked”, assuming such a finding were to be made, would not undermine the reasoning of the primary Judge.

59    Nor would the Conclusion of Mr New assume any relevance to the application for reconstitution of the Court. It falls well short of making out any case that it was the Department of Defence that was “calling the shots” or that this Court makes any decision or order in anything other than an independent manner.

The disqualification application

60    An application made by Dr Chandrasekaran that the Court be reconstituted is rejected.

61    The application for disqualification was initially founded upon the fact that the Court as presently constituted had heard and determined:

    an earlier proceeding in which Dr Chandrasekaran was the applicant: Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687; and

    an application to vary the orders made in that earlier proceeding, that application also involving an application for disqualification: Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists (No 2) [2019] FCA 1028 (“Chandrasekaran (No 2)”).

During the course of the hearing on 8 March 2021 the basis of the application for disqualification was expanded to include a submission that:

    Dr Chandrasekaran was unable to obtain a fair and impartial hearing by reason of there being an apprehension that it was the Department of Defence that was “calling the shots” – that problem, it being submitted, being problem systemic to the Court as a whole such that Dr Chandrasekaran was not able to obtain a fair and impartial hearing before any Judge of the Court.

62    As recounted in Chandrasekaran (No 2) at [42], any application for the disqualification of a Judge and the consequent reconstitution of the Court must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. Mason J there observed:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as [R v Watson; Ex parte Armstrong (1976) 136 CLR 248] and [Livesey v New South Wales Bar Association (1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: …. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(some citations omitted)

As also set forth in Chandrasekaran (No 2) at [43], it is equally well-recognised that, as a “general rule” a judge “should not accede to an unfounded disqualification application”: Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] VSCA 35 at [89], (1999) 2 VR 573 at 603 per Callaway JA. A judge “should not be quick to disqualify himself or herself from hearing a case for a reasonable apprehension of bias” (Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170 at [80], (2012) 208 FCR 128 at 149 per Collier J) and “should not recuse himself or herself from hearing a particular case without there being a proper and substantial reason for doing so” (Rana v Commonwealth of Australia [2013] FCA 189 at [36] per Mansfield J).

63    The application for disqualification now being made involves, perhaps, a subtlety that arises out of the fact that the Second Respondent, the State of New South Wales, may stand in a different position to – and attract different considerations to those of relevance to – the First Respondent. This difference was a matter adverted to by the primary Judge when his Honour noted the “overlap” of the issues his Honour was potentially called upon to resolve and those the subject of previous consideration. His Honour the primary Judge thus noted in his reasons for decision:

[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.

The “overlap” between the earlier proceeding, as resolved by the Court as presently constituted, and the proceeding the subject of the present application may thus be accepted.

64    But that “overlap” between the issues the subject of the earlier two judgments in the earlier proceeding and the present proceeding, with respect, leads to no different conclusion.

65    The application for disqualification now made in the present proceeding is rejected primarily because the proceeding before the primary Judge was a different proceeding involving different parties and involving (to some degree) different causes of action. What was in issue in the present proceeding was the manner in which the primary Judge had resolved the arguments before him. The application for leave to appeal involved the application of well-established principles to the reasoning of the primary Judge. The mere fact that a Judge may have dismissed other proceedings involving the same litigant, or refused leave to appeal to the same litigant, is not of itself reason to believe that a mind “open to persuasion” would not be applied to the resolution of the current proceeding. Had matters of degree been involved in the present proceeding, and had the pleadings (for example) been less open to the criticisms made by the primary Judge, perhaps a different approach may have been warranted. Different Judges may have formed different views as to the adequacy of a poorly drafted pleading. But the Further Amended Statement of Claim in the present proceeding was such that there was, with respect, no conclusion open other than that it should be rejected. An apprehension of bias is not established, with respect, merely because another Judge of the Court has also reached conclusions as to the inadequacy of pleadings which echo like conclusions expressed in respect to different pleadings in a different proceeding. All that is exposed is the fact that different Judges have reached like conclusions as to the adequacy of pleadings prepared for or on behalf of Dr Chandrasekaran.

66    The further basis upon which Dr Chandrasekaran advanced her application for disqualification is rejected because:

    there is, notwithstanding the conviction with which Dr Chandrasekaran advanced her submission, no evidence to support a finding that it was the Department of Defence that was “calling the shots”. The 21 March 2021 further submissions made by Dr Chandrasekaran expressly maintained that she “has no hope of justice when the Court itself as well as the Respondents conspire to prevent the course of justice”. Such a serious allegation, if it is to be advanced at all, warrants persuasive evidence. Mr New’s Report cannot be so described. This Court rightly prides itself on its independence from the Executive.

The submission is also rejected because:

    if accepted, it would not be an application for the reconstitution of the Court but an application which would result in there being available no Judge of the Court to resolve the very matter which Dr Chandrasekaran wants resolved.

CONCLUSIONS

67    Although resolved last, the application for the reconstitution of the Court is refused. That application was heard at the same time as the application for leave to appeal, the view being formed at the outset of the hearing that the application for disqualification could depend upon the arguments sought to be advanced in support of the grant of leave to appeal.

68    Leave to appeal is refused.

69    The decision of the primary Judge is not attendant with sufficient doubt to warrant the grant of leave and no substantial injustice is occasioned to Dr Chandrasekaran in refusing leave. The further pursuit of ill-formulated causes of action which seem to have little chance of ultimate success does not occasion her any injustice. Any injustice by the grant of leave would only be suffered by the Respondents.

70    There is no reason why costs should not follow the event. A submission as to impecuniosity made by Dr Chandrasekaran is rejected, even assuming the factual basis for such a submission were to be made out. Dr Chandrasekaran has had the benefit of the reasons for decision of the primary Judge. No doubt, or sufficient doubt, in those reasons has been exposed. Costs should follow the event in the conduct of the present proceeding, being a proceeding seeking to further pursue the arguments previously rejected by the primary Judge.

THE ORDERS OF THE COURT ARE:

1.    The application that the Court be reconstituted is rejected.

2.    Leave to appeal is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the Respondents, either as taxed or agreed.

Associate:    

Dated:    10 May 2021