Chandrasekaran v Western Sydney Local Area Health District

[2019] NSWSC 1461

Supreme Court

New South Wales

Medium Neutral Citation:	Chandrasekaran v Western Sydney Local Area Health District [2019] NSWSC 1461
Hearing dates:	9 October 2019
Date of orders:	09 October 2019
Decision date:	09 October 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	1.   Leave granted to the State of New South Wales to access and disclose all of the pleadings on the Court file filed by or on behalf of Sujatha Chandrasekaran, exclusively for the purpose of use in proceedings pending between the plaintiff and the State of New South Wales, and others, before the Federal Court of Australia in proceedings NSD 974 of 2019.  2.   The parties are to pay their own costs of the application.
Catchwords:	CIVIL PROCEDURE – Court administration — Non-party access to court files – Exceptional circumstances established
Cases Cited:	Chandrasekaran v The Commonwealth of Australia [2019] FCA 1169 Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567 eisa Limited v Damien Brady & 2 Ors [2000] NSWSC 929 McLachlan v Browne & Fairfax Media Publications Pty Ltd; McLachlan v Browne & Australian Broadcasting Corporation (No 5) [2018] NSWSC 1976 Springfield Nominees Pty Ltd and Others v Bridgelands Securities Ltd and Others (1992) 38 FCR 217; [1992] FCA 472
Texts Cited:	Practice Note SC Gen 2
Category:	Procedural and other rulings
Parties:	State of New South Wales (Applicant) Sujatha Chandrasekaran (Plaintiff) Western Sydney Local Area Health District (First Defendant) Charterhouse Medical Pty Limited (Second Defendant)
Representation:	Counsel: A Stafford (Applicant) In person (Plaintiff)   Solicitors: Crown Solicitor for NSW (Applicant)
File Number(s):	2018/177874

Judgment

1. HIS HONOUR: Sujatha Chandrasekaran, who is the plaintiff in this matter and the respondent on the notice of motion, commenced proceedings by way of a statement of claim filed on 7 June 2018, seeking damages against Western Sydney Local Health District trading as Westmead Hospital and Charterhouse Medical Pty Limited, who are the first and second defendants, respectively.

2. The plaintiff was employed at Westmead Hospital as a locum psychiatrist from December 2017. Her services were terminated on 15 January 2018. The plaintiff's statement of claim included claims for damages for alleged misleading and deceptive conduct, breach of contract, injurious falsehood and defamation.

3. Following a hearing in October 2018, the Medical Council made a determination that the plaintiff was not to practice medicine.

4. By way of an amended statement of claim filed without leave on 5 April 2019, the plaintiff sought, amongst other matters, leave to join the Medical Council and the State of New South Wales as defendants. This application was heard by Adamson J. Her Honour noted that the basis of the application to join the State of New South Wales as a defendant was that the first defendant and the Medical Council were both government instrumentalities, whose employees were paid by the State: Chandrasekaran v Western Sydney Local Health District (No 7) [2019] NSWSC 567 at [46]. Her Honour also noted the first defendant’s submission that “none of the employees of those instrumentalities had been joined as defendants”: at [46]. In a judgment handed down on 15 May 2019, her Honour refused the application.

5. On 11 July 2019, the plaintiff filed an application in the Federal Court commencing proceedings against the Commonwealth and the State of New South Wales. In Chandrasekaran v The Commonwealth of Australia [2019] FCA 1169, Wigney J dismissed certain interlocutory applications brought by the plaintiff, noting that she had “failed to demonstrate any prima facie case against the State”: at [18].

6. The State of New South Wales has filed an application in the Federal Court for summary dismissal, strike-out or a stay of the Federal Court proceedings. In pursuance of that application, it wishes to be able to rely upon the pleadings filed by the plaintiff in these proceedings. To that end, it has brought this application to seek leave to have access to the plaintiff’s pleadings in this matter and to disclose them in the Federal Court proceedings.

7. The defendants in these proceedings consent to leave being granted and the State of New South Wales mentions their appearances. The plaintiff does not consent to this application. I note that she appears in this matter without legal representation.

8. The applicant submits that leave is required in order for it to have access to and disclose the contents of pleadings since it is a matter that is yet to be determined. It notes that the Supreme Court Practice Note SC Gen 2, which concerns access by non-parties to court files, requires the leave of the Court unless the documents come within certain classes therein set out. None of those situations covers these pleadings. The Practice Note states that “[a]ccess to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist”.

9. The applicant accepts that the pleadings are subject to an implied undertaking and that a non-party must establish special circumstances before leave will be granted permitting the collateral use of such documents: see eisa Limited v Damien Brady & 2 Ors [2000] NSWSC 929 at [21]-[22] (Santow J). In McLachlan v Browne & Fairfax Media Publications Pty Ltd; McLachlan v Browne & Australian Broadcasting Corporation (No 5) [2018] NSWSC 1976, McCallum J concluded, at [12]-[16], that eisa Limited v Damien Brady & 2 Ors correctly stated the law in this regard.

10. The applicant relied upon an elaboration of special circumstances by Wilcox J in Springfield Nominees Pty Ltd and Others v Bridgelands Securities Ltd and Others (1992) 38 FCR 217; [1992] FCA 472, stating, at 225:

“… For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.”

11. The applicant relies on the following factors to satisfy its test, submitting that the circumstances are both exceptional and special. Firstly, the fact that the plaintiff, having been refused joinder of the applicant in these proceedings, shortly thereafter commenced proceedings against the applicant and others in the Federal Court with the same intention.

12. Secondly, the basis upon which the joinder was refused in this Court, including the fact that the Court was not persuaded of the utility in joining the applicant.

13. Thirdly, the fact that the judge responsible for case management of the matter in the Federal Court, Wigney J, observed in Chandrasekaran v The Commonwealth that allegations against doctors alleged to be employed by the applicant in the proceedings before him, appeared to be the subject matter of proceedings in this Court.

14. Fourthly, the fact that the applicant proposes, if leave is granted, to tender the pleadings from this Court in evidence in the Federal Court in support of an application to permanently stay those proceedings as an abuse of process. The applicant submits that this is relevant to the observation of Wilcox J that perhaps the most important consideration is the likely contribution of the documents to achieving justice in the second proceeding.

15. Finally, the applicant submits that the pleadings can be expected to enter the public domain in due course in any event when the litigation in this Court is completed.

16. As I have already noted, the plaintiff is unrepresented in this application. When called upon to make oral submissions, Ms Chandrasekaran repeatedly referred to the substantive allegations in the proceedings. I asked her to focus on what prejudice might be occasioned to her if the order sought is made or what other detriment there might to be to her case in that event.

17. As best I could discern from her response, no such prejudice or detriment was identified other than the tactical consideration of the possible success of the anticipated application in the Federal Court, if it is assisted by leave being granted to access and disclose her pleadings in this matter.

18. I am satisfied that special circumstances have been established, and I grant leave to the applicant to access and disclose the plaintiff's pleadings in this matter exclusively for the purpose of use in the Federal Court proceedings.

19. I note that the applicant does not seek an order for costs and accordingly I order that each party should bear its own costs on this application.

20. Accordingly, I make the following orders:

1.   Leave granted to the State of New South Wales to access and disclose all of the pleadings on the Court file filed by or on behalf of Sujatha Chandrasekaran, exclusively for the purpose of use in proceedings pending between the plaintiff and the State of New South Wales, and others, before the Federal Court of Australia in proceedings NSD 974 of 2019.

2.   The parties are to pay their own costs of the application.

**********