Chandrasekaran v Commonwealth of Australia

1. [1]

   The defendants, the Commonwealth of Australia and Bruce Boman, seek summary dismissal of the proceedings under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The grounds are, in short, that the proceedings are frivolous and vexatious, an abuse of process and disclose no reasonable cause of action.

2. [2]

   Having considered the extensive affidavit material and the detailed written submissions, and having heard oral argument on 26 August 2021, I have determined that I should dismiss the proceedings as an abuse of process. These are my reasons.

The proceedings

1. [3]

   The plaintiff, Ms Chandrasekaran, filed an initiating Summons on 17 December 2020. It is evident that the Summons was prepared without legal assistance. Ms Chandrasekaran is, and has remained, unrepresented during these proceedings.

2. [4]

   The Summons commences with a recitation of “injunctive relief” she has sought “since 2017”, and then goes on to list various proceedings in the Supreme Court, the Federal Court, the Medical Council of NSW and New South Wales Civil and Administrative Tribunal (“NCAT”), in all of which, it seems from par 1 of the Summons, Ms Chandrasekaran acknowledges she was unsuccessful.

3. [5]

   Ms Chandrasekaran goes on to assert that Mr Boman, whom she says is a psychiatrist “employed by NSW Health”, an “official of the Department of Defence” and a “Director of Training for the RANZCP”, has illegally accessed her “accounts” and generated emails to Federal authorities in Australia, “impersonating her as a terrorist offender”.

4. [6]

   What follows in pars 3 to 26 of the Summons is a narrative of the details and events that Ms Chandrasekaran says underpin her assertions and the personal and professional consequences to her caused by the alleged activity by the defendants between 2012 and December 2020. In that narrative, amongst other assertions, she denied ever writing about terrorism, asserts that the Royal Australian and New Zealand College of Psychiatrists (“RANZCP”) has conducted a program of “harm and abuse” to her, that her internet accounts have been the subject of hacking and herself, the subject of surveillance.

5. [7]

   There are multiple other assertions of abuse and invasion of privacy. Some allegations are said to relate to Ms Chandrasekaran’s former employment as a psychiatrist:

6. [8]

   The relief sought is set out in par 28 of the Summons:

7. [9]

   “Expeditious hearing” was sought in par 29. The initial proposal was that the matter be heard ex parte. I understand from the Court file that on 6 January 2021, Campbell J, acting as duty judge, declined to hear the matter ex parte and required Ms Chandrasekaran to serve the proceedings upon the defendants having explained, as shown on the transcript of that date, the reasons for this requirement.

8. [10]

   On 9 March 2021 Ms Chandrasekaran filed an Amended Summons which contained similar assertions to the initial Summons, but re-arranged in a different format and recasting the order sought in respect of the earlier judgments of other courts and tribunals as follows:

9. [11]

   There was additional conduct sought to be restrained:

10. [12]

    During the progress of the hearing on 26 August 2021, my attention was drawn to a Further Amended Summons dated 24 August 2021 which had been served on the defendants as a proposed further pleading. Leave was sought to file it in Court and I took the view that it was appropriate that that document also be placed before me on the application. Neither defendant took any objection to that course.

11. [13]

    That document remedies some irregularities in the Amended Summons which made reference to an additional defendant who was not a party, (“Chief, Australian Defence Force”) and added to par 1.5 that as well as orders that the Federal Court, NCAT and the Medical Council’s orders should be found to be “null and void”, the judgments in this Court should be also found to be null and void. This is presumably a reference to the decisions of Button J in Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920 delivered on 29 July 2021 and a decision of the NSW Court of Appeal in August 2021 related to the NCAT proceedings.

12. [14]

    The further amendments to the Amended Summons do not otherwise make any material change to the issues for determination on the defendants’ Notices of Motion.

13. [15]

    A suppression order over Ms Chandrasekaran’s name and identity was sought by her on the basis that the proceedings dealt with personal matters. In order to satisfy me that such an order should be made, Ms Chandrasekaran would have to establish one of the grounds set out in s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). I was not satisfied that any such ground applied and so I decline to make such an order.

The evidence tendered on the Notices of Motion

1. [16]

   In support of the case she seeks to make, Ms Chandrasekaran filed four affidavits:

2. [17]

   Despite having some acknowledged crossover and repetition, the plaintiff read all of her affidavits in response to the defendants’ applications. It is impossible to intelligibly summarise the contents of those affidavits other than to state that they include a narrative accusing multiple mostly unnamed people and organisations of “gaslighting”, “defamatory tactics”, causing a “counter intelligence operation” against her, publishing of falsities and unfair treatment and portrayal of her in judgments of the Federal Court.

3. [18]

   The July 2021 affidavit attached a report of an Information Technology expert, Mr New, and outlined Ms Chandrasekaran’s interpretation of I.P. address records as demonstrating parts of her allegations. There is also confusing narrative regarding her professional experience and training.

4. [19]

   The August 2021 affidavit annexed in full various affidavits that were prepared for the Federal Court proceedings.

5. [20]

   The Commonwealth relied upon two affidavits of solicitor, Mr Ng, together with exhibits. Those affidavits provide a relevant procedural history and evidence that Mr Boman is not, and has not been, a member of the Defence Force since 2002.

6. [21]

   Mr Boman relied upon the affidavit and exhibit of Ms Kless, solicitor, sworn 22 March 2021 which outlined other litigation commenced by Ms Chandrasekaran that raised identical and/or very similar allegations.

Other proceedings commenced by Ms Chandrasekaran raising the same or similar issues

1. [22]

   One significant common basis for the orders sought by the defendants is that the issues sought to be litigated in these proceedings are the same as those already dealt with in proceedings before the Federal Court.

2. [23]

   First in time were proceedings commenced by the plaintiff in the Federal Court on 14 June 2019, seeking both interlocutory and permanent injunctions restraining the Commonwealth and “State” from engaging in a long list of conduct, summarised by Wigney J as follows:

3. [24]

   On 3 July 2019 Wigney J dismissed the application for urgent ex parte interlocutory relief because, in short, the application had no merit: Chandrasekaran v Commonwealth of Australia [2019] FCA 1169.

4. [25]

   On 16 September 2019 the Commonwealth filed an application seeking summary judgment. That application was heard on 20 November 2019 together with applications by the other defendants. Wigney J granted those applications with reasons published on 11 November 2020: Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629.

5. [26]

   Wigney J stated that the critical questions for consideration were whether Ms Chandrasekaran had any reasonable prospect of successfully prosecuting the proceedings, whether any reasonable cause of action was disclosed, and whether the proceedings could fairly be described as “frivolous”, “vexatious” or otherwise an abuse of the processes of the Court. He concluded at [188] that they were, and that there was no reasonable prospect of successfully prosecuting the proceedings. He dismissed the proceedings with costs.

6. [27]

   On 25 November 2020, Ms Chandrasekaran filed an application for leave to appeal against the judgment and orders of Wigney J.

7. [28]

   On 8 March 2021 Flick J heard that application, together with an application made by her that he recuse himself. On 10 May 2021, Flick J refused the applications: Chandrasekara v Commonwealth [2021] FCA 481.

8. [29]

   The High Court dealt with an ex parte application on the part of Ms Chandrasekaran for leave to file special leave applications in respect of the decisions of both Flick J and Wigney J. The applications were dismissed on 4 August 2021: Chandrasekaran, In the matter of an application for leave to issue or file [2021] HCA Trans 119 (4 August 2021).

9. [30]

   Application was also made by Ms Chandrasekaran to the High Court for removal to the High Court of these current proceedings, as well as the other proceedings filed in this Court against Western Sydney Local Health District that had been heard by Button J in 2019 and 2020. Those applications were dismissed on 27 April 2021. An additional application was considered on the same date in which Ms Chandrasekaran sought leave to issue or file an application for Constitutional or other writ. That application also failed.

10. [31]

    Relevant by way of background are proceedings between Ms Chandrasekaran and the Medical Council of NSW to which specific reference is not required, other than to note that Ms Chandrasekaran was refused leave to appeal the decision of the Medical Council in proceedings before NCAT in November 2020, followed by refusal in August 2021 by the NSW Court of Appeal to grant leave for her to appeal the NCAT decision.

11. [32]

    Other proceedings in this Court were the subject of judgment in July 2021: Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920. Ms Chandrasekaran informed me during argument on 26 August 2021 that she intended to appeal that judgment.

12. [33]

    Ms Chandrasekaran seeks an order to the effect that all these judgments against her, in the Federal Court, the Medical Council, the Supreme Court and presumably the NSW Court of Appeal, are “null and void”.

UCPR rules and legal principles

1. [34]

   The Court has power to dismiss part or all of proceedings if certain criteria are met:

2. [35]

   The relevant principles are relevantly and accurately set out in the written submissions of the first defendant:

3. [36]

   As submitted by Mr Pietriche, counsel for Mr Boman, in O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the NSW Court of Appeal confirmed at [3] that the following principles were of general application:

4. [37]

   Acknowledging that the Court must proceed with caution in considering an application for summary dismissal, it is also important not to subject defendants to hopeless claims by plaintiffs which are, from the outset, doomed to fail: PQ v Law Society of New South Wales (No 5) [2021] NSWSC 463 at [23] per Adamson J.

5. [38]

   In the context of considering applications under r 13.4, the word “frivolous” includes proceedings that the plaintiff has no reasonable prospect of successfully prosecuting, or that are untenable, groundless or faulty: Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [59].

6. [39]

   The term “vexatious” in this context, refers to proceedings that are productive of serious and unjustified trouble or harassment: Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [25].

7. [40]

   A significant aspect of Ms Chandrasekaran’s submissions as to why the Court should not dismiss her proceedings is that the proceedings before Wigney J that covered the same ground, did not finally determine her claims for relief against the Commonwealth because he chose to summarily dismiss them.

8. [41]

   However, there is no need to demonstrate an estoppel: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518 to 519; [2015] HCA 28 at [25] to [26] per French CJ, Bell, Gageler and Keane JJ:

9. [42]

   Similar statements were made by Gageler J in UBS AG v Tyne (2018) 265 CLR 77 at 101; [2018] HCA 45 at [46]:

Submissions and argument

1. [43]

   Counsel for the Commonwealth, Ms Hooper, submitted that Ms Chandrasekaran is seeking to relitigate the same issues and arguments asserted in the Federal Court, because she is not happy with the outcome of those proceedings, and for that reason alone, the proceeding here is an abuse of process. Second, and separately, the proceeding has no reasonable prospects of success.

2. [44]

   The basis of the case Ms Chandrasekaran sought to make in the Federal Court was that the Commonwealth (including Mr Boman) was collecting, accessing and intercepting information and communications, that it was providing information to others, that it was intentionally slandering Ms Chandrasekaran and that there was a “program” by the Department of Defence to access her GPS data, and to stalk and harass and commit trespass upon her, and to hack bank accounts and carry out unauthorised transactions.

3. [45]

   Wigney J identified four potential causes of action pleaded against the Commonwealth: breach of confidence, breach of privacy, bailment or negligence, and a Wilkinson v Downton [2] type action for damages for nervous shock resulting from intentional false representations.

4. [46]

   His Honour concluded that to allow the proceedings to continue would be an abuse of the Court’s processes and manifestly oppressive to each respondent, including by reason of the “sweeping and extremely serious allegations made”, the “vexatious and scandalous” nature of the claim, the absence of any reasonable cause of action and the absence of proper allegations pleaded or otherwise disclosed. He further concluded that because the pleadings manifestly failed to identify and plead material facts, and did not disclose any reasonable cause of action against the Commonwealth, it would be inappropriate to grant leave to replead given the history of the matter which included earlier failed applications including repleading with the assistance of counsel.

5. [47]

   Challenge to Wigney J’s judgment by way of appeal was available and Ms Chandrasekaran did so by seeking leave to appeal. The history discloses that having sought leave to appeal, and before that appeal was heard, she commenced these proceedings in this Court.

6. [48]

   The challenge to Wigney J’s decision was dealt with by Flick J in May 2021 and was dismissed, with his Honour concluding that the decision was “not attendant with any doubt, let alone sufficient doubt to warrant leave being granted” [3] .

7. [49]

   The affidavit evidence relied upon by Ms Chandrasekaran in this Court makes generalised assertions with no real attempt to address the elements of the causes of action asserted.

8. [50]

   Assertions of denial of procedural fairness in the Federal Court proceedings simply underscore the real purpose of these proceedings, which is to relitigate matters that she felt were not fairly dealt with by the Federal Court, and to try and reagitate issues where Ms Chandrasekaran was unhappy with the rulings and outcomes.

9. [51]

   The affidavit evidence relied upon is unhelpful and fails to provide any support for the case(s) sought to be made. The affidavit of 25 July 2021 is “impenetrable” and comprises a repetition of submissions and grievances about other proceedings and other judgments in other places such as NCAT, to which the Commonwealth and Mr Boman were not a party.

10. [52]

    The claims by Ms Chandrasekaran are so obviously untenable that they cannot possibly succeed. First, assertions that the Commonwealth somehow acted through unnamed, unspecified individuals to engage in the conduct asserted, remains at such a high level of generality that it cannot be responded to. There is no identification of any person whose conduct can be attributed to the Commonwealth or for whom it is liable.

11. [53]

    In that regard it is important to note, as also submitted on behalf of Mr Boman, at no relevant time for the purpose of Ms Chandrasekaran’s complaints, was there any relationship at all between Mr Boman and the Commonwealth.

12. [54]

    Second, although this Court has power to grant injunctions, there needs to be a proper identified basis in the nature of an identified cause or causes of action for which the injunction is required to protect or enforce a recognised legal or equitable right. No such identification has occurred here.

13. [55]

    In analysing what might be intended by the case Ms Chandrasekaran is trying to bring, if it is a case for breach of privacy, Australian law does not recognise a cause of action based on breach of privacy: Maynes v Casey [2011] NSWCA 156 at [34].

14. [56]

    If the injunctive relief is to restrain breach of confidence, none of the elements of an equitable action for breach of confidence have been identified by, or in the Summons or Amended Summons, (or Further Amended Summons), dealt with by any of the affidavits tendered by the plaintiff.

15. [57]

    In short, the Further Amended Summons does not disclose any reasonably arguable cause of action against the Commonwealth. The problems identified by Wigney J in the Federal Court, namely the making of sweeping and general assertions of a scandalous and vexatious nature against the Commonwealth, are evident again here.

16. [58]

    There are further problems with the relief sought, in particular some of which is simply beyond the power of this Court to grant, for example “deeming invalid” the judgments of Flick, Rares and Wigney JJ. This relief again shows the reality that Ms Chandrasekaran is attempting, by these proceedings, to challenge or have set aside or quashed, judgments against her in the Federal Court about this same subject matter.

17. [59]

    Mr Pietriche adopted the principles and considerations articulated by the Commonwealth. Mr Pietriche added to them the following in respect of Mr Boman’s particular position.

18. [60]

    Whilst Mr Boman was not individually named in the proceedings in the Federal Court, the allegations of conduct here are in effect claimed against both the Commonwealth and Mr Boman and turn upon the same or very similar allegations which, broadly described, comprise:

19. [61]

    The proceedings should be dismissed summarily because first, the proceedings seek to ventilate claims which have otherwise been brought and dismissed in other proceedings, second, the Amended Summons discloses no reasonable cause of action and third, a number of the components of the relief sought are not available in this Court or in proceedings of this nature.

20. [62]

    The duplication of proceedings given these are the same causes of action sought to be ventilated in the Federal Court and this Court are a clear example of proceedings that are vexatious or an abuse of process.

21. [63]

    The proceedings filed in the Federal Court on 14 June 2019 and dismissed by Wigney J contained in the Further Amended Statement of Claim many identical factual allegations as those made in these proceedings e.g.:

22. [64]

    There is an obvious and extensive overlap, and the abuse is manifestly worse since there have already been three sets of proceedings, including the matter heard by Button J, which have already been prosecuted by Ms Chandrasekaran on substantially identical factual bases.

23. [65]

    Turning to the Summons, there is no pleading of any recognisable cause of action and no articulation of the material facts upon which a cause of action could be rationally inferred or deduced. These are fundamental problems which are unlikely to be remedied by the filing of a statement of claim or other pleading. None of the actions vaguely referenced are remotely tenable. Even if given the most generous interpretation, there is nothing more than broad sweeping assertions, almost entirely devoid of any meaningful or satisfactory specificity, and the affidavits filed by Ms Chandrasekaran take it no further.

24. [66]

    The report of Mr New of “NEW IT Solutions” makes a tenuous link between certain “clouds” used by the alleged hackers, and asserts that these “clouds” are also used by the US Department of Defence and that “the Australian government” relies on the “US Dept of Defence Hybrid Cloud”. This is a very tenuous basis to allow the case to proceed, comprising as it does a factual assertion by Mr New that he is not qualified to make.

25. [67]

    Even if it was, Mr Boman has no relevance to it because the evidence demonstrates that he was not an “Officer of Defence”, as Ms Chandrasekaran asserts.

26. [68]

    The allegations are serious but unable to be understood because of the way they are pleaded and so Mr Boman cannot respond. Another basis for concluding the claims are vexatious.

27. [69]

    Ms Chandrasekaran made a number of written and oral submissions. I will not repeat all of them here, but will focus on her main arguments. The primary submission was that given that there had been no hearing on the merits in the Federal Court, these proceedings cannot be an abuse of process because all the Federal Court did was dismiss the matter without hearing the evidence.

28. [70]

    Ms Chandrasekaran asserted that because Wigney J and Flick J did not read Mr New’s IT report, they did not have the relevant evidence before them that would have “inevitably” led to her case succeeding.

29. [71]

    The Commonwealth did not provide a report in reply to Mr New’s report, so that means the substance of her case has never been addressed.

30. [72]

    There were gross factual errors in the judgment of Wigney J. Further, the fact that he could identify four causes of action meant that he should not have “struck out” her case for “not disclosing valid causes of action”. The evidence supports breach of confidentiality and trespass to chattels. Her confidential information (unspecified) is “still being shared”.

31. [73]

    The proceedings should not be described as “frivolous” because they concern her life and livelihood. Ms Chandrasekaran complained that she had been suspended from practice for ten years and cannot obtain work and “it” is crippling her life, with no signs of stopping. People are being manipulated around her and she is being denied access to evidence.

32. [74]

    Ms Chandrasekaran also submitted that this claim is different to the claims before Wigney J, because there she also sought damages, but here she is only seeking injunctive relief.

Consideration and determination

1. [75]

   The power to summarily dismiss proceedings is an exceptional one and should only be exercised in circumstances where there is an absence of a cause of action demonstrated, and/or a clear abuse of the Court’s processes taking place. In my view, both bases for dismissal have been met in this case.

2. [76]

   As persuasively argued by both counsel for the defendants, this is clearly an attempt by Ms Chandrasekaran to go behind and relitigate the earlier unsuccessful attempts to pursue the same issues and allegations in the Federal Court. For cogent reasons, set out with clarity in the judgments of Wigney J and Flick J, those Federal Court proceedings failed.

3. [77]

   It cannot be the case that proceedings dismissed summarily for abject failure to demonstrate any cause of action, can then be repleaded in another court, and an argument made that the allegations were not heard in full in the first court, and so that justifies reagitation of those same allegations in this Court.

4. [78]

   A brief examination of the history of litigious steps taken by Ms Chandrasekaran demonstrates that every unsuccessful proceeding is followed by appeal and/or complaint and a reagitation of the same arguments, in slightly different clothing, in another Court.

5. [79]

   I have no doubt the matters complained of are of importance to Ms Chandrasekaran, but the Court’s processes must not be allowed to be used and manipulated in an attempt to cause the repeated hearing of unmeritorious claims that do not correspond to available causes of action at law.

6. [80]

   Obviously, this Court has no jurisdiction to “deem null and void” orders and judgments made in the Federal Court. Nor does it have the power to “deem null and void” the orders and judgments of the Medical Council, NCAT or the NSW Court of Appeal, simply at the request of an aggrieved litigant.

7. [81]

   The allegations made in the Summons (and the Amended Summons and the Further Amended Summons) are generalised, scurrilous and serious. Despite their width and seriousness, there is a lack of specificity which makes the allegations impossible to answer. The allegations against Mr Boman seem to be based on a fundamentally erroneous understanding of his lack of relationship of any relevant kind with the “Commonwealth” or Department of Defence.

8. [82]

   Whilst the relief sought is confined to injunctive relief, the underpinning legal and equitable right(s) to be protected must be identified but they have not been pleaded, nor have they been articulated in the vast affidavit material sufficiently to be able to be identified, even at the most general level.

9. [83]

   Despite allowing the most generous interpretation of the allegations made, there simply is no properly articulated, underlying recognisable cause of action and so there can be no prospects of success. To that extent, the proceedings are “frivolous” within the meaning of r 13.4.

10. [84]

    The proceedings are also vexatious, because they are productive of serious and unjustified trouble and harassment. There does not need to be an issue estoppel in play before this Court can control its processes to prevent them being misused to allow a rehearing and reagitation of allegations that failed elsewhere. In the words of Bellew J in Young if a question has been disposed of in one case, a litigant cannot be permitted, by changing the form of the proceedings, to set up the same again. To do so will amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414; [1995] NSWSC 136.

11. [85]

    I am satisfied that the plaintiff’s proceedings in this Court do not disclose any cause of action, are vexatious and are an abuse of process, and must be dismissed.

Order

1. [86]

   I make the following orders:

   1. (1)

      The proceedings brought by the plaintiff against the first and second defendants are dismissed.

   2. (2)

      The plaintiff is to pay the defendants’ costs of the proceedings.