Chandrasekaran v Navaratnem

1. [1]

   The background to this matter is set out in an earlier judgment I delivered on 9 November 2021: Chandrasekaran v Navaratnem [2021] NSWSC 1446.

2. [2]

   On that day, I made the following orders:

   1. (1)

      Vacate the hearing of the defendant's Notice of Motion filed 11 December 2019 fixed for that day.

   2. (2)

      Order that any further determination of the Motion take place on the papers and in Chambers.

   3. (3)

      Direct that, if the plaintiff wishes to file any further submissions in opposition to the relief sought in the defendant's Notice of Motion, then any such submissions should be filed and served by no later than 4pm, 26 November 2021.

   4. (4)

      Order the defendant to file and serve any submissions in reply to the plaintiff’s submissions by 4pm, 3 December 2021.

   5. (5)

      Upon receipt of the last set of submissions, judgment in this matter will be reserved, and that judgment will be determined on the basis of all the papers which have been filed to date.

   6. (6)

      Reserve all questions of costs of and occasioned by the vacation of today's hearing date.

   7. (7)

      Grant both parties liberty to apply.

3. [3]

   The plaintiff has not filed any further submissions in accordance with Order 3 of those orders. Accordingly, the defendant has not filed any submissions in reply in accordance with Order 4.

4. [4]

   By his Notice of Motion filed 11 December 2019, the defendant seeks the following orders:

Relevant Law

1. [5]

   Rule 11.6 of the UCPR provides:

2. [6]

   This Court may be an “inappropriate forum” for the proceedings if the substance of the action involves foreign conduct and is subject to foreign law.

3. [7]

   The principles that inform the common law test of whether a forum is “clearly inappropriate” equally inform the statutory test under r 11.6 of the UCPR: Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 (“Zhang”) at [25]; Studorp Ltd v Robinson [2012] NSWCA 382 at [5].

4. [8]

   Those principles were summarised by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 at 587:

The Plaintiff’s Claim

1. [9]

   The plaintiff has filed four affidavits in these proceedings dated 1 November 2019, 28 January 2020, 26 July 2021 and 8 November 2021. Much of the contents of these is not relevant to the determination of this Notice of Motion. However, the following may be observed about the plaintiff’s claim, in light of the Amended Statement of Claim and the four affidavits.

2. [10]

   The plaintiff alleges that she met the defendant in the United Kingdom on two occasions during November 2017 whilst in London. The plaintiff alleges that the defendant later disclosed information provided by her to him in those meetings in breach of an obligation of confidence. The plaintiff further alleges that the defendant: induced a breach of contract; unlawfully interfered in the plaintiff’s trade; and committed a conspiracy with others.

3. [11]

   The plaintiff does not allege that the defendant breached that confidence, or committed any of those torts, while physically in New South Wales.

4. [12]

   In her affidavit dated 28 January 2020, the plaintiff says:

5. [13]

   The “Australian citizens” referred to in the above passage do not include the defendant.

The Defendant’s Evidence on the Motion

1. [14]

   The defendant relies on an affidavit affirmed by his solicitor, Ms Breannon Bailey, filed on 11 December 2019. Ms Bailey’s evidence does not reveal any connection between the plaintiff’s claim, the defendant and this jurisdiction. She deposes the following:

2. [15]

   The defendant has also filed affidavits affirmed by Ms Bailey on 14 November 2019, 17 December 2019 and 29 September 2021. Those affidavits contain evidence that is substantially relevant to the alternative orders sought by the defendant. For reasons which will become clear, it is not necessary to set out that evidence here.

3. [16]

   Ms Bailey’s evidence was not challenged. I accept it.

The Plaintiff’s Response to the Motion

1. [17]

   The plaintiff has not filed any submissions in response to the defendant’s motion and did not appear at the hearing of the motion.

2. [18]

   The plaintiff contests the defendant’s evidence in her affidavits filed 28 January 2020 and 26 July 2021. Most of the plaintiff’s response to the defendant’s evidence is irrelevant to the determination of the issues. However, the plaintiff deposed in her affidavit filed on 28 January 2020 the following:

3. [19]

   The plaintiff repeated the same evidence in her affidavit filed 26 July 2021.

The Defendant’s Submissions

1. [20]

   The defendant submits there are the following connecting factors between this case and the United Kingdom:

   1. (1)

      First, the central factual allegation in these proceedings relates to two meetings between the plaintiff and the defendant, both of which occurred in London. The claims the plaintiff makes are best understood as claims in tort and have substantial connection with English law. Any professional obligation owed by the defendant to the plaintiff arose as a result of the meeting on 29 November 2017 in London. Any breach of any professional obligation was committed in London. There is no suggestion that any act was committed by the defendant outside of London. By reason of Australian choice of law rules, the law applied by Australian courts arising from a foreign tort is the law of the place where the wrong was committed: Zhang at [75].

   2. (2)

      Secondly, the defendant runs a full-time clinical practice which consists of many patients who are psychologically damaged and emotionally disturbed and has various teaching commitments. Requiring the defendant to attend Sydney would have an adverse impact on his patients, students and trainees.

   3. (3)

      Thirdly, by reason of the plaintiff’s case against the defendant, the defendant may be required to call expert evidence regarding the professional standards of psychoanalysts in the United Kingdom, which would be especially costly if the case was heard in New South Wales.

   4. (4)

      Fourthly, although the plaintiff resides in Australia, the prejudice to her of having to prosecute proceedings in England is likely to be of less significant than the considerations outlined above.

2. [21]

   By way of comparison, the defendant submits there are only the following connecting factors between this case and New South Wales:

   1. (1)

      The plaintiff is ordinarily a resident in New South Wales.

   2. (2)

      The plaintiff alleges that damage has been suffered in Australia.

Discernment

1. [22]

   The plaintiff has a prima facie right to insist upon the exercise of the jurisdiction of this court, and the jurisdiction to grant a stay or dismiss the action must be exercised “with great care” or “extreme caution”: Voth at 554.

2. [23]

   However, it is clear to me that the continuation of these proceedings would be oppressive and vexatious and that they should be permanently stayed pursuant to r 11.6 of the UCPR.

3. [24]

   Beyond the two meetings between the plaintiff and the defendant in November 2017, which on the plaintiff’s account were held in professional settings, there is no suggestion that the plaintiff knows the defendant or his personal or professional circumstances. Therefore, insofar as there is any difference between the evidence of Ms Bailey and the plaintiff, I prefer Ms Bailey’s evidence over that of the plaintiff. Importantly, I accept that the continuation of these proceedings in New South Wales will significantly disrupt the defendant’s professional and personal life and cause him considerable financial strain.

4. [25]

   I also accept the defendant’s submissions regarding the connecting factors between this case and, on the one hand, the United Kingdom and, on the other, New South Wales. I emphasise that the claims relate entirely to events that occurred in London. Furthermore, despite the plaintiff’s claim that “the damage sustained was and continues to be wholly in Australia”, it is not clear, even taking the plaintiff’s claims at their highest, what that damage comprises and how the defendant is said to have caused any such damage in Australia.

5. [26]

   The plaintiff’s claims are vague and do not plead sufficient material facts relevant to the invoked causes of action. It appears to me that it would be impossible for the defendant to reasonably respond to the claims effectively. Furthermore, the claims have impacted the defendant’s professional standing. As set out in Ms Bailey’s affidavit of 11 December 2019, the plaintiff has forwarded details regarding her claims against the defendant to the British Psychoanalytic Council and British Psychoanalytic Society. Those organisations have in response issued a letter of good standing in support of the defendant. The claims are therefore “seriously and unfairly burdensome, prejudicial [and] damaging” and “productive of serious and unjustified trouble and harassment”: Oceanic Sun at 247.

6. [27]

   For these reasons it is appropriate to order a permanent stay of these proceedings.

Orders

1. [28]

   I make the following order:

   1. (1)

      Order, pursuant to r 11.6 of the Uniform Civil Procedure Rules 2005, that the proceedings be permanently stayed.

   2. (2)

      Order that the plaintiff pay the defendant’s costs of the proceedings including all reserved costs.