Chandrasekaran v Commonwealth of Australia

[2021] NSWSC 1149

Supreme Court

New South Wales

Medium Neutral Citation:

Chandrasekaran v Commonwealth of Australia [2021] NSWSC 1149

Hearing dates:

26 August 2021

Date of orders:

9 September 2021

Decision date:

09 September 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

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

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

Catchwords:

CIVIL PROCEDURE – summary disposal – application for claim to be summarily dismissed – frivolous and vexatious proceedings – no reasonable cause of action – abuse of process – where plaintiff had commenced similar proceedings in the Federal Court – where the effect of these proceedings is an attempt to re-agitate issues that failed in the Federal Court – where plaintiff seeks orders that cannot be made in this Court, including setting aside or “quashing” orders made in the Federal Court – where the Further Amended Summons does not disclose a cause of action against any defendant – where proceedings are otherwise an abuse of process

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

Cases Cited:

Chandrasekaran v Commonwealth of Australia [2019] FCA 1169

Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629

Chandrasekaran v Commonwealth [2021] FCA 481

Chandrasekaran, In the matter of an application for leave to issue or file [2021] HCA Trans 119 (4 August 2021)

Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920

Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; [1995] NSWSC 136

Maynes v Casey [2011] NSWCA 156

O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71

PQ v Law Society of New South Wales (No 5) [2021] NSWSC 463

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10

Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Wilkinson v Downton [1897] EWHC 1 (QB); [1897] 2 QB 57

Category:

Procedural rulings

Parties:

Sujatha Chandrasekaran (Plaintiff)
Commonwealth of Australia (First Defendant)
Bruce Boman (Second Defendant)

Representation:

Counsel:
S Chandrasekaran (Self-Represented)
K Hooper (First Defendant)
R Pietriche (Second Defendant)

Solicitors:
S Chandrasekaran (Self-Represented)
Australian Government Solicitor (First Defendant)
New South Wales Crown Solicitor’s Office (Second Defendant)

File Number(s):

2020/358169

Publication restriction:

Nil

Judgment

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. 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

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.

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.

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”.

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.

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:

“[17] On or before 19 March 2012, Dr Boman, Dr Stephen Jurd and other Directors of training for the RANZCP as well as other agents of the RANZCP namely Dr Bill Lyndon and Dr Peter Klug of Northside Clinic, Greenwich published slanders that the Plaintiff had a psychiatric illness characterized by paranoia, erotomania, eating disorder, and that she was a terrorist offender and that she was conflictual. This served to 'gaslight' the Plaintiff should she report such events then she would be discredited ahead of time. This impeded career advancement and progression, and the Plaintiff was denied any further appointments to work in NSW Health. These publications were never disclosed to the Plaintiff and the Plaintiff was deceived and misled by the RANZCP to continue to train and work as a consultant psychiatrist. These representations are defamatory and completely erroneous. Her training records and references during this period are rated as 'very good' and 'excellent'.
…

[22] False representations appear throughout the judgements of the Federal Court, NCAT and the Medical Council of NSW where there has been a uniform absence of procedural fairness at the outset of these claims since they were commenced on 21 August 2018. The majority of the paragraphs of the judgements (sic) contain false statements which seek to portray the Plaintiff as having a psychiatric illness at the instruction of Defence. The representations are consistently the literal opposite of what was said or done on the record and in evidence. This portrayal is not dissimilar to that published by the Medical Council of NSW where there is little reference to fact nor to evidence, and perpetuates a public image that match (sic) the slanders described so as to discredit her and deny her of natural justice. The representations are easy to demonstrate in their falsity. These publications serve to humiliate, shame, degrade and discredit the Plaintiff publicly and permanently.”

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

“[28] Urgent interim/interlocutory and permanent injunctions to be heard ex-parte that the Defendants be restrained from

a. Accessing and using the Plaintiff’s digital, online and electronic communications and property including by hacking into her online accounts and digital devices and intercepting her emails and other communications sent and received by the Plaintiff.

b. Altering, damaging and vandalising the Plaintiff’s property or property used by the Plaintiff, including her digital, electronic or online property, home or other lodgings, and vehicle.

c. Contacting the Plaintiff with the intention to threaten, harass, intimidate or inflict emotional distress and nervous shock in any form, not limited to but including by telephone, email, short message service or other messaging applications.

d. Communicating and exchanging the Plaintiff’s confidential and private communications and information between any person, servant or agent of (1) Commonwealth Department of Defence, its officials including but not limited to Dr Bruce Boman (2) State of New South Wales (3) Royal Australian and New Zealand College of Psychiatrists and any medical professional (4) Medical Council of New South Wales (5) Australian Centre for Advanced Computing and Communications Pty Ltd, GTT Communications, Amazon Web Services, Entrust Inc and other contracted cloud providers for Defence (6) any party to proceedings in a Plaintiff’s claim and (7) the Defendants who are concealing their IP address by using a virtual private network and/or through contracts to hack the Plaintiffs accounts for the Defendants.

e. Impersonating the Plaintiff by generating communications from the Plaintiffs accounts or devices through unauthorised access to her accounts, or through the creation of fake websites and accounts impersonating her and to appropriate her identity and then sending these false representations and communications to another person, corporation or entity.

f. Commonwealth and State officials knowingly publishing false representations to ridicule, humiliate, degrade the Plaintiff and to expose her to hatred and contempt and cause her to be shunned, avoided and ostracised.

g. Prohibiting the Defendants exchanging the Plaintiffs information and communications to any person the Plaintiff communicates with for personal, professional or social reasons.

h. The Court order an Apprehended Violence Order or Protection Order or other similar order, against both Defendants particularly Dr Boman to apprehend this defendant, forthwith.

i. Clearing her status and identity so that it is in keeping with that of a person that has never committed any terrorist offence or any offence for the purposes of immigration to another country.

j. Ceasing the counterintelligence program or other terrorist surveillance/punishment programs being used against the Plaintiff.

k. That any judgement (sic) published about the Plaintiff be anonymised.

l. The judgements (sic) and orders of the Medical Council of NSW and NCAT be quashed and if any scope in this court for those in the Federal Court also.”

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.

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:

“[1.5] Deeming the Orders and Judgements (sic) of the Medical Council of NSW, NSW Civil and Administrative Tribunal and those of Flick J, Rares J and Wigney J of the Federal Court of Australia null and void on these bases as there has been direct communication with the Defendants in the course of these proceedings.”

11. There was additional conduct sought to be restrained:

“[1.4.28] Directing Commonwealth and NSW State public officials including officers of the Court from publishing false representations in the form of Judgements (sic) and Orders which portray the Plaintiff as incompetent and suffering a mental illness, also known as gaslighting.

[1.4.49] Directing Commonwealth and NSW State public officials including officers of the Court from publishing false representations in the form of Judgements (sic) and Orders by deliberately making statements that are false or for which there is no evidence, documenting the opposite of the true event or what is documented in evidence, inventing or manufacturing events and communications never made by the Plaintiff, mis portraying (sic) the Plaintiff through deliberate false statements in other forms, fusing or jumbling up her evidence and submissions so that they are non-sensical and disorganised, being needlessly degrading, cruel, abusive and hostile of the Plaintiff, denying and not considering nor referring to the Plaintiff's evidence, where this list is not exhaustive.”

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.

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.

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.

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

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

• affirmed on 9 December 2020 (prepared in proceedings Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920) with 200 pages of annexures;

• affirmed on 26 November 2020 (filed on 7 January 2021) comprising 26 pages of narrative plus evidentiary material comprising about 600 pages (delivered to Chambers on 25 August 2021);

• affirmed 25 July 2021;

• affirmed 20 August 2021.

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.

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.

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

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.

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

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.

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] …. Expressed in the broadest possible terms, that conduct includes harassment, stalking, ‘gaslighting’, breach of privacy, defamation, fraud, injurious falsehood, breach of fiduciary duty, misfeasance in public office and conspiracy. It would appear that Dr Chandrasekaran contends that she is entitled to that relief because, amongst other things, the Commonwealth and the State have contravened and are continuing to contravene various provisions of the Criminal Code Act 1995 (Cth), the Telecommunications Act 1996 (Cth), the Privacy Act 1988 (Cth), the Surveillance Devices Act 2007 (NSW) and the Health Practitioner Regulation National Law 2009 (NSW).”[1]

1. Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [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.

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.

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.

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

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.

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).

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.

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.

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.

24. 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

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

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

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

“[16] In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, Barwick CJ held that a litigant should not be denied access to the appropriate tribunal unless his or her lack of a cause of action is clearly demonstrated. His Honour identified the various expressions of the relevant test to be applied, including that the claim is "'so obviously untenable that it cannot possibly succeed"' (at 219).

[17] The onus of satisfying the Court that there is an abuse of process lies upon the Commonwealth as the party asserting the abuse of process, and that the onus is 'a heavy one': Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ).

[18] In Rinehart v Rinehart [2020] NSWSC 68 Ward CJ in Eq considered the doctrine of abuse of process relevantly at [586]-[597]. In summary, her Honour held:

(a) the categories of abuse of process are not closed. Proceedings may be held to be an abuse of process where the Court's processes are invoked for an illegitimate or improper purpose, where their use is unjustifiably oppressive to a party or vexatious, and where their use in the manner contemplated would bring the administration of justice into disrepute: at [586];

(b) the bringing of two proceedings where one will lie is an instance in which abuse of process has been found. It is prima facie vexatious and oppressive to commence a second or subsequent action where an action is already pending with respect to the matter in issue: at [587]-(588] quoting Henry v Henry (1996) 185 CLR 571 at 591, and Ward CJ in Eq at [591];

(c) the doctrine of abuse of process, in its application to the assertion of rights or the raising of issues in successive proceedings, is informed in part by considerations of finality and fairness, similar to those that inform the doctrine of estoppel but inherently broader and more flexible than that doctrine: Ward CJ in Eq at [596] citing Gageler J in UBS AG v Tyne (2018) 265 CLR 77 at 101[62] referring to Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-519[24]-[25]; and

(d) there may be circumstances where a sufficient explanation can be advanced for the institution or continuation of two proceedings raising the same claim or issues. However, 'in general it is contrary to the public interest in the administration of justice for there to be permitted the risk of inconsistent decisions on the same issues; and there would be oppression at the continuation of proceedings with the risk of conflicting judgments, if the same or similar issues will arise for determination in each': at [597].

[19] In Reichel v Magrath (1889) 14 App Cas 665 Lord Halsbury SC said at 668 that it would be:

... a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again.

... It surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.

[20] In Young v Racing NSW [2021) NSWSC 556 (“Young”) Bellew J held at [56]-[57]:

[56] 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 case again. To do so will amount to an abuse of process [Reichel v Macgrath [1889] 14 App Cas 665; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 393; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414; [1995] NSWSC 136].

[57] Moreover, it is a central tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. The principal qualification to the principle that controversies, once quelled, may not be reopened is provided by the appellate system [D 'Orta­Ekeniake v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at 17; [34] -[35].]”

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:

(1) on a summary judgment application, a real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded;

(2) the critical question can be expressed as whether there is more than a fanciful prospect of success or whether the outcome is so certain that would it be an abuse of process of the Court to allow the action to go forward. Demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success;

(3) powers to summarily terminate proceedings must be exercised with exceptional caution.

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.

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].

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].

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.

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:

“[25] Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel.  Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.  It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

[26] Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.  Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.”

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

“[46] Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits.  Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process.  The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process.”

Submissions and argument

(i) Submissions of the Commonwealth

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.

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.

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.

    2. Wilkinson v Downton [1897] EWHC 1 (QB); [1897] 2 QB 57

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.

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.

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] .

    3. Chandrasekara v Commonwealth [2021] FCA 481 at [8]

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.

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.

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.

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.

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.

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.

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].

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.

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.

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.

(ii) Submissions of Mr Boman

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.

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:

• prior to and since 19 March 2012, Mr Boman, allegedly an official of the Department of Defence, illegally accessed Ms Chandrasekaran’s personal email accounts and sent emails to government authorities in Australia and the United Kingdom in her name in which she claimed that she was a terrorist offender;

• since 19 March 2012, Mr Boman has conducted a counter intelligence program against Ms Chandrasekaran which comprised repeated violations of her privacy, intentional infliction of nervous shock through “parodies” of her that incorporate confidential information, “black bag” jobs such as repeated break and enters of her car and lodgings with property damage and vandalism, cyberstalking, physical stalking, defamatory publications and false representations by public State and Commonwealth officials to portray her as incompetent, problematic and psychiatrically ill;

• following repeated hacking of her various online email accounts and social media profiles, both defendants have supplied her confidential information to participants in “the program”, which is then repeated to Ms Chandrasekaran in her dealings with these other people;

• both Mr Boman and the Commonwealth have incessantly contacted her by phone, email, SMS and through other messaging applications with communications which are “deranged, intrusive and threatening” or bearing a “facetious, idiot-like, nonsensical quality”;

• on or before 19 March 2012 Mr Boman, along with a number of other Directors of Training for the RANZCP published slanders that she had a psychiatric illness and that she was a terrorist offender, which were intended to “gaslight” her and discredit her, before she was able to report certain unidentified events involving her and Mr Boman; and

• the Commonwealth and Mr Boman created fake websites and online accounts to complement their slanders, which were then provided to persons with whom Ms Chandrasekaran had contact so as to cause her to be shunned ostracised and discredited.

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.

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.

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.:

(a) at [3], the Plaintiff alleged that on or before 12 August 2017, the Commonwealth through its servants or agents had collected the personal information of the Plaintiff by requesting entities such as Google and Amazon to access her communications, which is repeated at [7] and [20] of the Plaintiff’s original Summons in these proceedings;

(b) at [10] and [17], the Plaintiff alleged that the Department of Defence had continued to access, by hacking, the Plaintiff’s confidential information held in her online accounts and intercepted her communications, entered her lodgings and motor vehicle and engaged in GPS tracking of her, which are repeated at [4], [6], [8]-[9] and [15] of the Summons;

(c) at [13], the Plaintiff alleged that the Department of Defence had disclosed the Plaintiff’s personal information to others “for the purposes of misuse”, which has its analogue in paragraphs [11]-[13] of the Summons; and

(d) at [20], the Plaintiff alleged that psychiatrists, including Dr Boman, had made false representations about the Plaintiff designed to “lower the opinion” of her in the medical profession, which is particularised by reference to publications on the internet and the creation of false documents by NSW Health. Such allegations are repeated at [17]-[19] of the Summons.

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.

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.

64. 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.

65. 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.

66. 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.

(iii) Submissions of Ms Chandrasekaran

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.

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.

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.

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”.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

86. I make the following orders:

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

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

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Endnotes

Decision last updated: 10 September 2021