Supreme Court New South Wales Medium Neutral Citation: Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 1231 Hearing dates: 16 September 2019 Date of orders: 18 September 2019 Decision date: 18 September 2019 Jurisdiction: Common Law Before: Harrison J Decision: (1) Dismiss the plaintiff's amended notice of motion filed on 16 September 2019 with costs. (2) Set aside the plaintiff's notice to produce dated 29 August 2019. (3) Order the plaintiff to pay the costs of the second defendant's notice of motion filed in court on 16 September 2019. Catchwords: CONTEMPT – plaintiff's motion for contempt – where first defendant temporarily in breach of timetable for filing evidence – where timetable varied and reasons for delinquency explained – whether conduct amounts to an intentional disregard for the orders of the court Legislation Cited: Health Practitioner Regulation National Law (NSW) (National Law), ss 150A, 159 SCR, rr 55.7, 55.9 UCPR, rr 18.2(1), 18.5 Cases Cited: Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567 Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 327 McDonnell v Novello [2006] NSWSC 1186 Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2006] NSWSC 831 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558 Category: Procedural and other rulings Parties: Sujatha Chandrasekaran (Plaintiff) Western Sydney Local Area Health District (First Defendant) Charterhouse Medical Pty Ltd (Second Defendant) Representation: Counsel: R Pietriche (First Defendant) K Petch (Second Defendant) Solicitors: Crown Solicitor's Office (First Defendant) Norton Rose Fulbright (Second Defendant) File Number(s): 2018/177874 Publication restriction: Nil Judgment 1. HIS HONOUR: By amended notice of motion filed in court on 16 September 2019, the plaintiff seeks the following orders: 1. Holding the first defendant in contempt to court for prevaricating, refusing to give evidence, and repeatedly breaching court orders since February 2019 to current date and refusing to respond to several notices to produce with a view to refusing any further evidence for filing and for evidence submitted to be struck out. 2. Hold Dr Rosalie Wilcox in contempt of court for failing to comply with subpoena to produce. 3. Review of Registrars of the Supreme Court giving access to the defendants the plaintiff's reasons for her application for leave to issue subpoenas. 4. Review of Registrar decision to not grant subpoenas to Wavelength International, Ms Megan May, Ms Jennifer Ratcliffe in light of fabricated evidence filed through deceitful conduct of the first defendant. 5. Add Kannan Navaratnem to proceedings or leave to issue subpoenas. 6. Review of Registrar decision that the plaintiff cannot self-represent. 7. Deny first defendant's request to deny the plaintiff to file further notices of motion or to request further notices to produce. 1. Prayer 6 is no longer pressed. The plaintiff appears for herself without legal assistance. She is entitled to do so. I am unaware of the basis upon which any order restricting her to appearance by a legal practitioner could have been made. In any event, none of the defendants seeks to enforce such a restriction if ever they could have. 2. Prayer 2 can and should be dealt with immediately. Dr Rosalie Wilcox is not a party to these proceedings. She was engaged by the first defendant to prepare a report in relation to the plaintiff's mental condition in anticipation of an application to have a tutor appointed for the conduct of this litigation. The first defendant's notice of motion dated 15 February 2019 seeking an order to that effect was withdrawn on 21 March 2019. It has never been revived. Dr Wilcox's report is now not relied upon by the first defendant for any purpose in the substantive proceedings: see Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 327 at [11]. 3. The first defendant has submitted that, in these circumstances, Dr Wilcox's report, including its contents and the circumstances giving rise to its production, can have no relevance to the present proceedings. 4. There is no evidence that the plaintiff's motion for contempt or any of the evidence upon which she relies to support it has been served personally on Dr Wilcox in compliance with the requirements of UCPR 18.2(1) and 18.5 or SCR 55.9. Understandably, Dr Wilcox did not appear at the hearing of the plaintiff's motion before me. Moreover, the plaintiff's statement of charge was not filed in accordance with SCR 55.7 that requires it be "subscribed to, or filed with, the notice of motion." I have no evidence to suggest that it has ever come to the attention of Dr Wilcox. Those matters are alone sufficient to dispose of prayer 2. 5. Prayer 5 seeks the joinder of Kanaan Navaratnem as a party to the proceedings. Such an application has been twice refused already by Justice Adamson (see Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567) and Justice Wright. No appeal from their decisions has been pursued by the plaintiff. It is inappropriate that the application to join Mr Navaratnem be revived before another single judge of this Court in those circumstances. 6. Prayer 1 seeks to hold the first defendant in contempt for either failing to comply with interlocutory orders or directions made in the course of the conduct of the proceedings to date or for failing to respond to notices to produce issued by the plaintiff. The first defendant provided written submissions in response to the plaintiff's application. Some of those submissions should be noted. 7. As with prayer 2, the notice of motion was not accompanied by a statement of charge. None has ever been provided. Instead, the plaintiff has sought to substantiate the alleged contempt by affidavit sworn on 13 September 2019 in anticipation of the hearing before me on 16 September 2019. The first defendant maintained that the material "particularised" in the affidavit was inadequate and did not contain sufficient detail or information to enable the first defendant as the alleged contemnor to meet the charge: Matthews v ASIC [2009] NSWCA 155 at [40]. Accordingly, in accordance with the first defendant's submission, prayer 1 ought to be dismissed upon the basis that the plaintiff has conspicuously failed to observe the procedural requirements of a valid contempt motion. My attention was drawn to the remarks of Barrett J in McDonnell v Novello [2006] NSWSC 1186 at [35] emphasising that: "An allegation of contempt of court is serious and not to be made lightly. It may lead to loss of liberty. It behoves anyone pursuing such an allegation to do so with precise attention to all matters going to due process." 1. There is accordingly in the present circumstances sufficient basis immediately to dismiss the plaintiff's motion for want of compliance with these procedural requirements. However, more fundamentally, the complaints that the plaintiff makes do not in any event come even close to establishing the charge she seeks to prefer. As the first defendant somewhat uncontroversially contends, the facts of this case do not disclose a contumelious or intentional disobedience to orders of the court. 2. For example, orders with respect to the filing of evidence were only made for the first time on 31 May 2019 following service by the plaintiff of her further second amended statement of claim filed on that day. The first defendant was required to serve its evidence by 15 July 2019. On 25 July 2019, the first defendant's solicitors notified the plaintiff of delay in completing its evidence and sought an extension to 2 August 2019. The reasons for the delay were later explained in an email sent on 26 July 2019. Registrar Bradford extended the time for service of the first defendant's evidence until 7 August 2019. Evidence of several witnesses was served in accordance with that extended regime. The only affidavit not served by the extended date was that of Dr Dina Mahmood, which was in any event served by 26 August 2019. The prospect of that late service, occasioned by Dr Mahmood's personal circumstances, had earlier been foreshadowed in correspondence dated 7 August 2019. 3. These events do not constitute contempt of court. The filing of a motion based upon the suggestion that they do is so far removed from what may be considered to be a proper understanding of contempt as potentially to amount to an abuse of process. The plaintiff's allegations appear to be borne of a somewhat officious and inappropriately censorious attitude to the first defendant's compliance with an agreed timetable for the filing of its evidence. The first defendant's conduct falls far short of being contempt of court and in my experience in the management of cases amounted to no more and no less than the type of slippage that is consistent with the normal and acceptable standards of human behaviour in litigation like this. If it were otherwise, this Court and others like it would be paralysed by unnecessary and expensive collateral motions such as the present. 4. So far as concerns the plaintiff's allegation of a failure to comply with a notice to produce, such a failure does not in any event constitute contempt as it does not amount to a failure to comply with an order of the Court: Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2006] NSWSC 831 at [24]-[25]; Jeray v Blue Mountains City Council [2011] NSWLEC 28 at [41]. 5. Prayer 3 relates to the plaintiff's concern that, as a self-represented litigant, she is required to provide reasons why she should be granted leave to issue subpoena, to which the first defendant might in the normal course have access. The plaintiff contends that this "undermines any scope for procedural fairness" and gives the defendants "time to destroy and fabricate evidence." 6. The effect of the plaintiff's application, if granted, would be to restrict access to parts of the Court file by the defendants. There is no material before me to support any such order being made. It is apparent to me, particularly with the benefit of the plaintiff's detailed oral submissions on 16 September 2019, that she has extensive concerns that her life and activities are being improperly monitored and accessed by all manner of people and institutions and that the defendants are to a considerable extent conspicuous but nefarious participants in such behaviour. The plaintiff's current pleading would appear to have been much influenced by similar concerns. However, the plaintiff's submissions do not establish the fact. The plaintiff has not demonstrated that she has been or will be denied some form of procedural fairness or that the defendants have so far or will in the future fabricate evidence. 7. Prayer 4 seeks a review of the Registrar's decision to refuse the plaintiff leave to issue certain subpoenas. The principles that apply to such a review are well known: see, for example, Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [6]-[9]; UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558; Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]. 8. Leave to issue the subpoenas in question was refused by Deputy Registrar Chang on 8 July 2019. With respect to the subpoena directed to Ms Megan May, the Deputy Registrar considered that the plaintiff was using the subpoena as a fishing expedition for the purpose of discovering a case of which the recipient may be presently unaware. She considered the Wavelength subpoena to be too broad and oppressive and that it was similarly being used to find evidence. The Ratcliffe subpoena was said to be based on conjecture, not to have been supported by the pleadings and not related to relevant documents in the substantive case. 9. The first defendant made the following submissions. 10. First, the Ratcliffe subpoena is predicated upon the basis that Ms Ratcliffe has acted to "protect" the defendants at the plaintiff's expense, and is also directed to questioning Ms Ratcliffe in person as to the suspension of the plaintiff's medical registration. The first defendant contended that there was no basis in the evidence to substantiate the assertion that either Ms Ratcliffe or the Medical Council of NSW has any role to play in establishing the liability of either of the defendants having regard to the current pleading. To the extent that the plaintiff seeks to challenge the decision to suspend her medical registration, these proceedings are not the proper forum to do so. The plaintiff has rights of appeal to the Civil and Administrative Tribunal under s 159 of the Health Practitioner Regulation National Law (NSW) (National Law) and the right to seek a review by the Medical Council under s 150A of the National Law. 11. Secondly, the May subpoena is sought on the basis that Ms May did not investigate the plaintiff's complaint which forms the basis for these proceedings, but rather "harassed" the plaintiff using personal information obtained from the plaintiff's personal accounts. Ms May and the Safework Commission are not parties to these proceedings, and the only nexus that would appear to exist between Ms May and these proceedings is the assertion that "it is obvious someone contacted her and help[ed] her formulate the ways to harass" the plaintiff. Even accepting the factual veracity of the allegation that Ms May harassed her, the plaintiff's allegation that that conduct was instigated by the defendants, or is at all relevant to these proceedings, is either unfounded or has at the very least not been established. 12. Finally, the Wavelength subpoena is sought on the basis that Rebecca Plaza of Wavelength International was involved in "purposefully undermining" the plaintiff's applications to work at other hospitals in and outside of New South Wales. As with the May subpoena, these proceedings do not concern the conduct of Wavelength International, and the assertion that it is involved in a conspiracy with the defendants to harass and deceive the plaintiff has no rational basis in any evidence currently before the Court. 13. The plaintiff did not establish to my satisfaction, despite her oral submissions to which I have previously referred, that the Registrar's decision was wrong or that it should be varied or set aside. I am satisfied that the first defendant's contentions are correct. 14. Prayer 7 deals with an order made by the Registrar requiring the plaintiff to obtain leave before filing further notices of motion or issuing notices to produce. Apart from a complaint that she did not like the order, the plaintiff has not demonstrated why it should be varied or set aside. Indeed, having regard to the somewhat unfortunate history of these proceedings, the plaintiff has shown a regrettable tendency to take steps that are arguably ill-considered or not considered at all. There is a real concern that the plaintiff's inclination to resort to the processes of the Court or the availability of the defendants as parties required to respond to her actions has been all too readily activated with the consequent incurring of unnecessary costs. It seems to me that without improperly restricting the plaintiff's prosecution of this litigation, the defendants are entitled to the protective filter of the leave requirement. 15. Finally, by its notice of motion filed in Court on 16 September 2019, the second defendant seeks an order that the plaintiff's notice to produce dated 29 August 2019 be set aside. That notice calls upon the second defendant to produce the following documents: "Emails sent and received by Daniel Harvey on 29 November 2017 and 5 December 2017, that is, emails from his sent folder and inbox folder of his email account xxxxx. Content of emails and identifying details of doctors can be redacted from the subject lines." 1. I am informed that Mr Harvey was employed by the second defendant at or about the time of the events about which the plaintiff complains in her current statement of claim. The plaintiff maintains that she wishes to establish whether or not Mr Harvey was or was not at work in his position with the second defendant on the days in question. That is because the plaintiff perceives that she was given an answer to an inquiry directed by her to the second defendant that included a statement that Mr Harvey was on two weeks leave. The plaintiff has indicated that she disbelieves that response and wishes to establish the true position by examining Mr Harvey's emails for the days that she has nominated. 2. It is in my view sufficient to dispose of this application by noting that the notice to produce would appear clearly to have no legitimate forensic purpose. The documents sought are clearly too wide. The issue with which the plaintiff appears to be concerned does not have any apparent or discernible connection with or relevance to the case she propounds in the present litigation. The notice to produce should be set aside. 3. I note in passing that this litigation is unfortunate to say the least. The plaintiff's concerns that she has been wrongfully dismissed or otherwise unfairly treated have escalated into something far more concerning. It is clear that the plaintiff feels that she has been the subject of some wide-ranging and complex international conspiracy to deprive her of her identity and to frustrate her ability to work in her chosen field. The plaintiff's continual references to parody skits, gaslighting and the involvement of ASIO do not helpfully assist in the identification of the real issues in dispute and have a notable tendency to cause prejudice, embarrassment and delay. I have already expressed the tentative view that the plaintiff's contempt motions might arguably amount to an abuse of process. 4. These proceedings are listed for hearing in December. As far as I have been able to determine, the plaintiff has given no thought to the preparation or service of any evidence dealing with her alleged loss or damage. I foresee a very real prospect that this may come into sharp focus before the proceedings are much older. The plaintiff has indicated that she will be legally represented at the hearing. It is to be hoped that she obtains appropriate legal assistance well before then. 5. I make the following orders: 1. Dismiss the plaintiff's amended notice of motion filed on 16 September 2019 with costs. 2. Set aside the plaintiff's notice to produce dated 29 August 2019. 3. Order the plaintiff to pay the costs of the second defendant's notice of motion filed in court on 16 September 2019. ********** Amendments 18 September 2019 - [23] - Anonymised email address DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2019