Chandrasekaran v Western Sydney Local Health District & Anor (No 4) [2023] NSWCA 253 (25 October 2023)

Last Updated: 25 October 2023

Court of Appeal

Supreme Court

New South Wales

Case Name:	Chandrasekaran v Western Sydney Local Health District & Anor (No 4)
Medium Neutral Citation:	[2023] NSWCA 253
Hearing Date(s):	9 October 2023
Decision Date:	25 October 2023
Before:	White JA
Decision:	Applicant’s Notice of Motion filed on 23 September 2023 is dismissed. The costs of that Notice of Motion are to be the respondents’ costs in the applicant’s Further Amended Notice of Motion filed on 28 March 2023 for leave to adduce further evidence or to admit new and fresh evidence.
Catchwords:	CIVIL PROCEDURE – Subpoenas – Notices to produce – Where applicant seeks leave to issue subpoenas and notices to produce to respondents requiring production of certain emails and related metadata – Where applicant seeks such leave to identify third parties alleged to have hacked into applicant’s email accounts – Where previous applications for leave to issue subpoenas and notices to produce requiring production of similar documents dismissed – Whether subpoenas and notices to produce for purpose of identification of non-parties to pending appeal would have legitimate forensic purpose – Leave to issue subpoenas and notices to produce refused
Legislation Cited:	Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 51.51
Cases Cited:	Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920 Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 106 Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219
Category:	Procedural rulings
Parties:	Sujatha Chandrasekaran (Applicant) Western Sydney Local Health District, trading as Westmead Hospital (First Respondent) Charterhouse Medical Pty Ltd (Second Respondent)
Representation:	Counsel: Applicant self-represented R Pietriche (First Respondent) L Crosbie (Second Respondent) Solicitors: Applicant self-represented New South Wales Crown Solicitor (First Respondent) Norton Rose Fulbright (Second Respondent)
File Number(s):	2021/00259930
Publication Restriction:	Nil

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

HIS HONOUR: The applicant, Dr Sujatha Chandrasekaran, is the appellant in an appeal from a judgment of the Common Law Division (Button J) given on 29 July 2021. His Honour entered judgment for the respondents on her claim against the first respondent (Western Sydney Local Health District) and the second respondent (Charterhouse Medical Pty Ltd) (Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920).
The hearing of the appeal is listed for two days commencing on 30 October 2023.
On 28 March 2023, Dr Chandrasekaran filed an amended notice of motion in which she sought leave to adduce further evidence or to admit new and fresh evidence, and also leave to issue subpoenas. She also sought:

“8. A permanent injunction against persons accessing the Appellant’s email accounts, and to persons to whom the Appellant’s email(s) are being forwarded to by the respondents and their lawyers...”

On 9 May 2023, Meagher JA stood over the applications to adduce further evidence on the appeal to the hearing of the appeal. His Honour dismissed the application for leave to issue subpoenas and refused the application for an injunction (Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 106). The four proposed subpoenas Dr Chandrasekaran sought leave to issue were addressed to the solicitors for the respondents, to an employee of Charterhouse Medical Pty Ltd, Mr Dean Madigan, and to Dr Ashwini Padhi, the clinical director of a medical facility in which Dr Chandrasekaran worked as a visiting medical officer during the period from late December 2017 until 15 January 2018.
Meagher JA also set aside notices to produce addressed to Dr Padhi. In relation to the claim for an injunction, Meagher JA said that “This Court, in its appellate jurisdiction, cannot grant interlocutory or permanent injunctions in relation to matters which are not the subject of an appeal” (at [16]).
The primary judge described Dr Chandrasekaran’s claims in the proceedings below as including a claim that when placed as a locum (the placement having been arranged by Charterhouse) at an inpatient facility of the Health District that provided psychiatric care for children and adolescents, her supervisor, Dr Padhi, engaged in conduct described as a “so-called ‘parody skit’” and “gaslighting”. His Honour said that Dr Chandrasekaran described the former term as meaning a false replaying of details of her own life by another person in order to mock or satirise her own true personal experiences, and that the latter term was derived from a 1940s motion picture in which a malevolent male seeks to undermine the confidence of a vulnerable female to the extent that she is manipulated into feeling, quite wrongly, that she might be mentally ill (at [43]). One of the claims, as summarised by the primary judge, was that Dr Padhi had obtained confidential information about Dr Chandrasekaran, which he then promulgated to her detriment. In relation to this claim, the primary judge summarised Dr Chandrasekaran’s case as involving the assertion that Dr Padhi had invaded her privacy and obtained personal details about her which he then raised in personal conversations with her (at [41]-[42]).
In her notice of appeal, Dr Chandrasekaran contends that the primary judge ought to have held that information about her personal circumstances, including her travel to Berlin, her meeting with a Mr Navaratnam, and her having completed a course to which Dr Padhi referred as having been completed by him as well, was obtained through the hacking of her email accounts for the purposes of exploitation and causing intentional psychological harm to her. She contends that the primary judge made no reference to evidence on these matters in his judgment. Her notice of appeal also refers to evidence having been given in her cross-examination of the interception of her emails by internet service providers (ground 1.8) and complains about the rejection of expert evidence from a Mr New in relation to the hacking of her email accounts.
One of the claims made against the Health District was for injurious falsehood. This was in part based upon a notification that Dr Padhi made to at least one professional body that Dr Chandrasekaran was not mentally well (at [87]). The primary judge rejected the proposition that Dr Padhi, or any other employee of the Health District, was motivated by malice. Dr Chandrasekaran’s complaint of “gaslighting” will seek to challenge that finding.
The complaint of injurious falsehood was also made against Charterhouse. One of the bases of this claim was an email by Mr Harvey of Charterhouse to a fellow employee on 2 July 2018 that was accidentally also sent to Dr Chandrasekaran, in which she was referred to as “the cray [sic] Google car lady”.
Dr Chandrasekaran submits that, in his cross-examination on the last day of the hearing, Mr Harvey gave evidence that could only suggest that a third party had referred to Dr Chandrasekaran as crazily believing that she had been followed by a Google car (which I take to be a car used to photograph streets for a Google app that provides photographs of streets). Dr Chandrasekaran says that, because this evidence was only given on the last day of the hearing, she did not have the opportunity to seek the production of documents that would identify who conveyed that information to Mr Harvey. No party suggested that that question was pursued in the cross-examination of Mr Harvey.
It is against this background that, in his judgment of 9 May 2023, Meagher JA held that the issue of subpoenas to seek to identify persons who were accessing the appellant’s email accounts was not a legitimate forensic purpose for the issue of the subpoenas then sought to be issued.
Nothing daunted, Dr Chandrasekaran issued new notices to produce and sought leave to issue subpoenas. On 12 September 2023 Meagher JA set aside the notices to produce and refused leave to issue subpoenas. His Honour also ordered that Dr Chandrasekaran be restrained from serving any further notice to produce without the prior leave of the Court (Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219). His Honour did so on three grounds. First, that the notices to produce lacked required specificity ([21]). Secondly, Dr Chandrasekaran had not identified to what particular issue or issues on the appeal the documents might be relevant, or admissible on her application under s 75A of the Supreme Court Act 1970 (NSW) to adduce further evidence on appeal ([22]). Thirdly, her principal purpose in seeking production of the documents was not to prosecute her appeal but to identify third parties against whom injunctive relief could be sought. This was not a legitimate purpose ([23]-[24]).
On 23 September 2023, Dr Chandrasekaran filed a further notice of motion seeking leave to issue differently-framed notices to produce or subpoenas to the Health District and Charterhouse. The notices to produce and subpoenas are not in the same terms as framed in the earlier applications. The notice to produce and subpoena to the Health District seek:

(a) all emails sent from two email addresses used by Dr Chandrasekaran to an email address of Dr Padhi at an address with NSW Health between 5 December 2017 and 24 October 2018;
(b) emails forwarding such emails;
(c) replies to any such forwarded emails;
(d) emails sent to Dr Padhi’s specified email address that contain her name;
(e) emails forwarding emails falling within (d);
(f) emails replying to such forwarded emails falling within (e);
(g) emails sent from another email address used by Dr Chandrasekaran on 29 or 30 September 2022 to Dr Padhi’s email address; and
(h) any forwarded emails to emails within para (g) and replies to them.

The notice to produce and subpoena require the emails to be produced in specified electronic format.
The notice to produce and subpoena addressed to Charterhouse seek the same classes of documents sent by Dr Chandrasekaran from her specified email addresses to two specified email addresses at Charterhouse and forwarding emails and emails received at the specified Charterhouse email addresses from third parties containing reference to her names and any emails forwarding such emails or replies to such forwarded emails.
Although counsel appeared for Dr Chandrasekaran at the trial and the second hearing before Meagher JA, for the most part she has represented herself in the proceedings below and in this Court. Neither her Further Second Amended Statement of Claim nor her Notice of Appeal is professionally drawn. They contain much in the way of submission.
The relief claimed in the Further Second Amended Statement of Claim included:

“4. Injunctive orders prohibiting harassment, defamation and injurious falsehood, breach in confidence [sic], fraud, intrusion upon seclusion and misuse or disclosure of personal information by all person(s) and/or entity responsible.”

Under a heading alleging bias on the part of the primary judge, paragraph 1.64 of the Notice of Appeal contends that the primary judge erred in repeatedly refusing to admit IT reports demonstrating that Dr Chandrasekaran’s accounts were being illegally accessed and hacked.
On this application Dr Chandrasekaran adduced evidence which she contended demonstrated that the respondents had been opening and forwarding emails received from her to third persons who were using the same IP addresses as persons who had hacked her accounts. This included an email sent by her from an email address she used on 30 September 2022 to Dr Padhi’s email address and an email she sent on 7 September 2022 to Mr Madigan of Charterhouse. She contends that digital tracing records annexed to her affidavit show that the emails were forwarded to numerous people, including people using the same internet service provider as used by unknown third persons who she says she can demonstrate have hacked her email accounts. She has not hitherto been able to identify those persons.
As noted above, Dr Chandrasekaran’s Further Second Amended Statement of Claim sought injunctive orders prohibiting harassment, defamation and injurious falsehood, and misuse or disclosure of personal information by “all person(s) and/or entity responsible”. Dr Chandrasekaran submitted that the availability of injunctive relief is one of the subjects of the appeal. In paragraph 1.60 of the Notice of Appeal she submitted that the primary judge intentionally inflicted psychological distress where it had been made clear that part of her claim was seeking injunctive relief against the party (I interpolate or parties). Leaving aside the scandalous allegation that the primary judge intentionally inflicted psychological distress, it is evident that, in paragraph 1.60 of the Notice of Appeal, Dr Chandrasekaran seeks to challenge a ruling refusing her leave to reopen to tender a newly-available IT report, which she would contend established that her accounts have been hacked.
Dr Chandrasekaran also adduced evidence to the effect that she had been locked out of two of her email accounts as a result of some unknown person or persons having hacked into it and changing the password and security questions. As a result, she submitted that she is unable to access emails purportedly sent by her to the respondents but in fact sent by a third party. She submitted that she needed such documents to make the affidavit required by pt 51 of r 51 of the UCPR in support of her application for leave to adduce further evidence on the appeal. That rule provides:

“51.51 Additional evidence (cf SCR Part 51, rule 19)
(1) This rule applies to an application to receive additional evidence.
...
(3) The grounds must be stated in an affidavit.
(4) Evidence necessary to establish the grounds of the application, and the evidence the applicant wants the Court to receive, must be given by affidavit.
...”

Dr Chandrasekaran submitted that she had lost the information that she would use and put in her affidavit to justify the grounds for adducing further evidence on appeal and described the grounds as follows:

“The ground being that email X that was sent by me, apparently on such and such a date, wasn’t sent by me, or email Y that was sent by me, indicates a breach of confidence occurred well before I began my placement on 27 December 2017, and therefore Dr Padhi was in communication with these third part[ies] well before I’d even commenced, which goes to deceptive and misleading conduct and injurious falsehood...”

Dr Chandrasekaran submitted that:

“The digital evidence I have provided is of the highest standard available and is uncontested. It demonstrates the respondents are forwarding my emails to third persons, which was pleaded in the Statement of Claim at paras 13, 17, 19, 23, 24, 26, 36, 38 to 41. That is, that the respondents were in communication with the parties that had access to my email accounts...”

When asked why documents that she alleged had been communicated to Dr Padhi before the commencement of her engagement by the Health District had not been sought in the court below, Dr Chandrasekaran submitted that a notice to produce had been issued to the Health District, but was not responded to. She submitted that critical evidence had now been obtained in 2023, namely, that Dr Padhi had been opening emails on the same internet service provider with the same IP address as persons who had been hacking her account, and this was not evidence which she had available in the court below. She also said that the evidence adduced on this application suggested that the General Medical Council of United Kingdom had also been communicating with these third persons.
Dr Chandrasekaran’s Notice of Motion filed on 13 September 2022 for leave to adduce further evidence on appeal, has been stood over to the hearing of the appeal. In the affidavit of 4 August 2022 in support of that application, Dr Chandrasekaran annexed an affidavit of Mr Stephen New, which in turn annexed his report made on 11 May 2021, which supports her claim that her email accounts had been hacked.
The respondents did not take issue with Dr Chandrasekaran’s submission that the digital tracing records annexed to her affidavit showed an email sent from one of her email addresses to Dr Padhi’s email address on 30 September 2022 had been opened on 1 October 2022 and forwarded to a recipient using an internet service provider called Cloudflare Net and subsequently reopened or forwarded on two further occasions to users of that ISP. The digital trace statements showed that an email sent by Dr Chandrasekaran on 7 September 2022 to Mr Madigan of Charterhouse had been opened and then forwarded to numerous other people, including to another user of Cloudflare Net. Her submission is that an unidentified user or users of that ISP has been responsible for the hacking of her accounts.
In so far as Dr Chandrasekaran seeks production of documents for the purpose of identifying persons whom she contends have been hacking her email accounts, then it is clear that that is not a legitimate forensic purpose. The appeal from the orders of the primary judge is not a vehicle for a general investigation into the claimed hacking of Dr Chandrasekaran’s email accounts and the identification of the perpetrators of such hacking.
The second asserted legitimate forensic purpose contended for by Dr Chandrasekaran raises different issues. Her notice of motion to adduce further evidence and for leave to admit new and fresh evidence in the appeal, has been stood over to the hearing of the appeal. The question whether Dr Chandrasekaran should have leave to adduce the evidence sought by her proposed notices to produce and subpoenas has not been determined.
Dr Chandrasekaran can rely upon her affidavits filed in support of her Notice of Motion of 25 September 2023 and in support of her Further Amended Notice of Motion filed on 28 March 2023 in her application for leave to adduce further evidence or to admit new and fresh evidence. But UCPR r 51.51(4) requires her to provide by affidavit the evidence she wants the Court to receive. She does not have that evidence.
In so far as Dr Chandrasekaran seeks the production of documents whose production could have been sought at trial (being the documents sought from 5 December 2017 up to 24 October 2018 in the case of the notice to produce and subpoena addressed to the Health District, and emails forwarding such documents and replies to such forwarded emails, and documents sought from Charterhouse for the period from 2 July 2018 to 6 August 2018, and documents forwarding such emails or replying to such forwarded emails), it will be an issue for the Court of Appeal on the hearing of the application to admit further evidence whether there is a proper basis for Dr Chandrasekaran to seek to adduce such evidence when that evidence had not been obtained at or prior to the trial.
In relation to the evidence of the forwarding of emails sent in September 2022, these were the subject of affidavits made by Dr Chandrasekaran in earlier affidavits affirmed on 24 October 2022 (affidavit of 5 October 2023 annexure SC5, p 19), 21 March 2023 (affidavit of 5 October 2023 p 33-34), and 11 April 2023 (annexure SC1 to that affidavit, affidavit of 5 October 2023 p 47).
In relation to both classes of documents, the arguments sought to be advanced on this application either were, or should have been, advanced in her previous applications. It is an abuse of process for a litigant to bring repeated applications on the same materials seeking marginally different relief which could have been, but was not, sought in the earlier application.
For these reasons, I order that her Notice of Motion filed on 23 September 2023 be dismissed. The costs of that Notice of Motion are to be the respondents’ costs in Dr Chandrasekaran’s Further Amended Notice of Motion filed on 28 March 2023 for leave to adduce further evidence or to admit new and fresh evidence.

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Authorities Cited4

Referred to (4)