Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital)

[2023] NSWCA 288

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288

Hearing dates:

30 and 31 October 2023

Date of orders:

1 December 2023

Decision date:

01 December 2023

Before:

Gleeson JA at [1]
Leeming JA at [290]
Adamson JA at [291]

Decision:

(1)   Appeal allowed in part.

(2)   Set aside order (1) made in the court below on 29 July 2021.

(3)   In lieu of order (1) below, direct entry of judgment for the appellant against the first respondent in the sum of $100.

(4)   Otherwise dismiss the appeal.

(5)   Paragraph 1 of notice of motion filed 28 March 2023 be dismissed with costs.

(6)   The appellant’s oral application for leave to issue further notices to produce and subpoenas is refused.

(7)   Subject to order (9) below, the appellant to pay the costs of the first respondent in this Court.

(8)   The appellant to pay the costs of the second respondent in this Court.

(9)   In the event that the appellant seeks a different costs order to that in (7) above, direct the appellant to file and serve written submissions within 14 days of the date of these orders, such submissions not to exceed three pages, the first respondent to file and serve within 10 days thereafter written submissions in response, not to exceed three pages. Note that any such application will be determined on the papers.

Catchwords:

COURTS AND JUDGES — Apprehended bias —Where complaints on appeal concerning evidentiary rulings and time limitation on cross-examination of witness — Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to issues — Where no basis identified for finding that judge decided case other than on legal or factual merits

COURTS AND JUDGES — Actual bias — Whether judge pre-judged appellant’s case — Where no basis for inferring that judge was not open to persuasion

CONSUMER LAW — Misleading or deceptive conduct — Whether Health District or recruitment agency misrepresented nature or location of appellant’s appointment to provide locum services as visiting medical officer (VMO) — Where appellant confirmed her correct understanding of the nature of locum role in contemporaneous emails and conversations

CONTRACTS — Breach of contract — Where appellant agreed to provide locum services as VMO under locum agreement — Where appointment terminated — Whether Health District’s discretion in locum agreement to determine amount of work “during the term” of agreement authorised termination

EQUITY — Breach of confidence — Where no evidence that Health District received confidential information

TORTS — Economic torts — Injurious falsehood — Malice — Where notification concerning appellant made to Australian Health Practitioners Regulation Authority (AHPRA) — Where Health District responded to inquiry from Health Care Complaints Commission (HCCC) to provide documents and reports — Whether statements made to AHPRA and HCCC involved malice — Where challenge to findings that statements made in good faith

TORTS — Economic torts — Injurious falsehood —Where email inadvertently sent by recruitment agency to appellant and another employee of recruitment agency — Whether statement made to third party — Whether email malicious — Where recruitment agency decided not to arrange further VMO placements for appellant

APPEALS — From exercise of discretion — Procedural decisions — Where refusal of application to re-open case — Whether House v The King-type error established — Where no such error identified

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98(1)

Evidence Act1995 (NSW), ss 135, 136

Health Practitioner Regulation National Law (NSW), ss 150, 159B

Health Services Act 1997 (NSW), ss 90, 98, 105

Public Health Act 2010 (NSW)

Public Hospitals (Visiting Medical Officers – Sessional Contracts) Determination 2014 (NSW)

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), rr 31.23, 42.1, 51.18(1)(e)

Cases Cited:

ACCC v TPG Internet Pty Limited (2013) 250 CLR 640; [2013] HCA 54

Aldi Foods Pty Ltd v Transport Workers Union of Australia [2017] FCA 1004

AMI Australia Holdings Pty Ltd v Fairfax Media Publications [2009] NSWSC 1290

Akins v National Australia Bank Limited (1994) 34 NSWLR 155

Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27

Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60

Chandrasekaran v Western Sydney Local Health District [2023] NSWSC 106

Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219

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

Campomar v Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434; [1987] FCA 266

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237; [2008] HCA 10

Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Joyce v Sengupta [1993] 1 All ER 897; [1993] 1 WLR 337

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Li v Attorney-General of New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95

Ling v Pang [2023] NSWCA 112

Manly Council v Byrne [2004] NSWCA 123

Maredelanto Compania Naviera SA v Bergbau-Handel GmbH (The Mihalis Angelos) [1971] 1 QB 164

Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Monie v Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25

National Roads & Motorists’ Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491; (2019) 291 IR 28

Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69

Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64

Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

R v Birks (1990) 19 NSWLR 677

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127

Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21

Smith Kline & French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Department of Community Services (1990) 22 FCR 73

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

Spring v Guardian Assurance plc [1993] 2 All ER 273

State of New South Wales v Stevens (2012) 82 NSWLR 106; [2012] NSWCA 415

TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130

Tjiong v Tjiong [2012] NSWCA 201

Toth v State of New South Wales [2022] NSWCA 185

University of Wollongong v Metwally (No 2) (1985) 60 ALR 68; [1985] HCA 28

Water Board v Moustakas (1998) 180 CLR 491; [1998] HCA 12

Texts Cited:

Fleming’s, The Law of Torts (10th ed, 2011, Thomson Reuters)

Category:

Principal judgment

Parties:

Sujatha Chandrasekaran (Appellant)
Western Sydney Local Health District (t/as Westmead Hospital) (First respondent)
Charterhouse Medical Pty Ltd (Second respondent)

Representation:

Counsel:
S Chandrasekaran (Self-represented) (Appellant)
R J Pietriche (First respondent)
K Petch (Second respondent)

Solicitors:
S Chandrasekaran (Self-represented) (Appellant)
Crown Solicitor’s Office (First respondent)
Norton Rose Fulbright Australia (Second respondent)

File Number(s):

2021/259930

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2021] NSWSC 920

Date of Decision:

29 July 2021

Before:

Button J

File Number(s):

2018/177874

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Dr Sujatha Chandrasekaran, is a qualified medical practitioner and specialist psychiatrist. In July 2017, the appellant entered into an agreement with the second respondent, Charterhouse, by which Charterhouse would register the appellant’s interest in providing locum services as a medical practitioner to its medical clients. In emails exchanged on 5 December 2017, a Charterhouse consultant and the appellant discussed a potential locum placement in child and adolescent psychiatry at Redbank House, with the possibility of a role in adult psychiatry becoming available. Redbank House is an inpatient facility that cares for patients who are children and adolescents, and is a unit of Westmead Hospital operated by the first respondent, Western Sydney Local Health District (the Health District). The appellant discussed the opportunity at Redbank House with Dr Ashwini Padhi, the clinical director of Redbank House, on 5 December 2017. On the same day, the appellant informed a consultant of Charterhouse that she would like to go ahead with the child and adolescent role at Redbank House with a view to transitioning to an adult role “when possible”.

Draft locum agreements between Charterhouse (acting as an agent for the Health District) and the appellant were exchanged between 8 and 11 December 2017. While the title of the appellant’s role in the early drafts of the locum agreement was “VMO Adult Psychiatrist”, in the final version which was signed and returned by the appellant on 11 December 2017, her role title was “VMO Psychiatrist”. The locum agreement provided, among other things, that the appellant was appointed as an independent contractor and that the Health District “cannot guarantee, and no warranty is made, as to the amount of work that may ultimately be required, or the total Fee that may be payable, during the Term”. The term of the appointment at Redbank House was 27 December 2017 to 2 March 2018. It was common ground that by s 98 of the Health Services Act 1997 (NSW), the terms of the Public Hospitals (Visiting Medical Officers – Sessional Contracts) Determination 2014 (NSW) (the Sessional determination) were contractually binding on the appellant and the Health District. Relevantly, cl 15 of the Sessional determination provided the Health District with a right to suspend the appellant’s appointment and cl 16 provided a right of termination of the locum agreement in specified circumstances.

During the appellant’s placement, Dr Padhi became aware of verbal complaints about the appellant from the parents of two child patients. Those incidents were recorded in Advanced Incident Management System (AIMS) reports prepared on 16 January 2018. The Severity Assessment Code (SAC) on these AIMS reports was initially recorded as “2”, which represented the second-highest category of risk to patients. Conversations with the appellant on Friday, 12 January 2018, led Dr Padhi to the view that the appellant was exhibiting symptoms consistent with paranoia as a result of which he became concerned about her employment in a position involving caring for troubled children and adolescents. On Monday, 15 January 2018, after obtaining the approval of senior management of the Health District, Dr Padhi and Ms Joseph met with the appellant and informed her that she was not allowed to continue in her role.

On or about 17 January 2017, Dr Padhi told Mr Daniel Harvey, a consultant at Charterhouse, that the appellant’s placement at Redbank had been terminated. Mr Harvey passed that information to his supervisor at Charterhouse, Mr David Pereira, who instructed Mr Harvey, “[a]t this stage, Charterhouse shouldn’t arrange further placements for Dr Chandrasekaran” (the Pereira statement).

On 18 January 2018, based on the advice of a member of the Health District’s clinical governance team, Ms Joseph updated the AIMS reports in respect of the two patients by downgrading the SAC for each of the reports from “2” to “4”, “4” being the lowest level of risk to patients. Also on 18 January 2018, Ms Joseph prepared a risk assessment pertaining to the appellant and a brief to the chief executive of the Health District seeking retrospective approval for the termination of the appellant’s placement on 15 January 2018. The risk in relation to the appellant in the risk assessment was recorded as “extreme” but this document was left incomplete and was not signed. On 9 February 2018, Dr Padhi made a notification about the appellant to the Australian Health Practitioners Regulation Authority (AHPRA) and annexed statements of several Health District employees. AHPRA forwarded this notification to the Health Care Complaints Commission (HCCC) on the same day.

By email of 1 July 2018 to Mr Harvey, copied to Ms Greenfield, the appellant sought Charterhouse’s address for service of legal proceedings. Mr Harvey intended to forward that email to Mr Pereira but inadvertently replied to the appellant and Ms Greenfield on 2 July 2018, in which he referred to the appellant as follows: “Dave, this woman is cray. This is the cray google car lady who got fired from Health District” (the Harvey statement).

On 17 July 2018, in response to a request by the HCCC, the Health District’s executive director mental health service, A/Prof Kotze, sent a letter to the HCCC attaching, among other things, copies of the brief sent to the chief executive, the two AIMS reports, the risk assessment prepared by Ms Joseph, and the statements of several Health District staff. On 24 October 2018, the Medical Council suspended the appellant’s registration as a medical practitioner by imposing a condition on the appellant’s registration not to practice “as a psychiatrist” or “medicine”, pursuant to s 150(1)(b) of the Health Practitioner Regulation National Law (NSW).

In June 2018, the appellant commenced proceedings against the Health District and Charterhouse. Against the Health District, the appellant alleged misleading or deceptive conduct in relation to the nature and location of the VMO placement, breach of contract in relation to the termination of the locum agreement, breach of confidence and injurious falsehood. Against Charterhouse, the appellant alleged misleading or deceptive conduct and injurious falsehood. The appellant claimed damages in respect of the loss of the locum agreement, past economic loss, future economic loss, out-of-pocket expenses, general damages/non-economic loss and aggravated damages. After judgment had been reserved in July 2020 the appellant applied in December 2020 to re-open her case. That application was refused in March 2021. On 29 July 2021, the primary judge rejected all claims and entered judgment for the Health District and Charterhouse: Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920. On appeal the main issues were:

whether the appellant is entitled to a retrial on the ground that the primary judge was biased in making evidentiary rulings and imposing a time limitation on cross-examination of a respondent witness;

whether the primary judge erred in refusing the re-opening application made after judgment had been reserved;

whether the primary judge erred in failing to find that the Health District and/or Charterhouse had engaged in misleading or deceptive conduct contrary to s 18 Australian Consumer Law in representing that the appellant’s placement as a VMO would be at Cumberland Hospital in adult psychiatry, when in fact the placement was at Redbank House and in child and adolescent psychiatry;

whether the primary judge erred in failing to find that the termination of the locum agreement by the Health District was a breach of contract;

whether the primary judge erred in failing to find that the Health District had breached an obligation of confidence in relation to personal information of the appellant which Dr Padhi had allegedly received from third parties;

whether the primary judge erred in failing to find that the creation and circulation within the Health District of the risk assessment and the AIMS reports, and Dr Padhi’s notification to AHPRA, and A/Prof Kotze’s letter to the HCCC involved false statements about the appellant amounting to injurious falsehoods for which the Health District was liable; and

whether the primary judge erred in failing to find that the Harvey statement and/or the Pereira statement amounted to injurious falsehoods for which Charterhouse was liable.

The Court (Gleeson JA, Leeming and Adamson JJA agreeing) held, allowing the appeal in part in relation to the breach of contract claim but otherwise dismissing the appeal:

Bias

As to apprehended bias, the appellant did not identify what might have led the judge to decide the case other than on its legal or factual merits. The appellant failed to identify a connection between the impugned evidentiary rulings and procedural decisions and the possibility that the judge might depart from impartial decision-making in determining the issues to be decided in the proceedings. There was no basis for finding that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues: [60]-[63].

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, applied.

As to actual bias, there was no basis for inferring that his Honour was not open to persuasion because the appellant had been unsuccessful on some evidentiary and procedural rulings made in the course of the trial and on the re-opening application: [64]-[67].

Re-opening application

The interlocutory decision to refuse the appellant’s re-opening application involved the exercise of the Court’s discretion. It was therefore necessary for the appellant to demonstrate a House v The King-type error. No such error was identified: [68]-[73].

Misleading and deceptive conduct claim

The appellant did not labour under an erroneous assumption as to either the nature of her role (in child and adolescent psychiatry) or the location at which she was to provide locum services (at Redbank House). The description of the appellant’s role as a “VMO Psychiatrist” in the final version of the locum agreement signed on 11 December 2017 is to be understood in the context of earlier exchanges between the appellant, Charterhouse and the Health District. That context includes the contemporaneous emails in which the appellant expressed her understanding that the role was in child and adolescent psychiatry and at Redbank House: [95]-[103], [110]-[111].

ACCC v TPG Internet Pty Limited (2013) 250 CLR 640; [2013] HCA 54; Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60 applied.

Breach of contract claim

The discretion conferred on the Health District by the locum agreement to regulate the amount of work to be performed by the appellant “during the term” of the locum agreement did not authorise the Health District to terminate the locum agreement itself. By purporting to do so, the Health District breached the locum agreement: [137]-[147].

Damages for wrongful termination are to be assessed on the basis of the least onerous method of contractual performance, absent facts to the contrary. The natural inference is that the Health District would have exercised its power under cl 15 of the Sessional determination to suspend the appellant’s appointment, given Dr Padhi’s concerns for patient safety and the appellant’s own wellbeing, with which A/Prof Kotze agreed. The suspension of the appellant by the Health District would have had the consequence that while suspended, the appellant had no entitlement to payment of any fees under the locum agreement and, although suspension would have enlivened procedural fairness provisions under the Health Services Act, there is no basis for a finding that that procedure would have resulted in the re-appointment of the appellant before the end of the term of the locum agreement on 2 March 2018: [148]-[155].

Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54; TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 applied.

In the absence of proof of actual damage, nor challenge to the primary judge’s contingent findings on causation, no entitlement to compensatory damages has been established. The appellant is entitled to an award of nominal damages as a token of the Health District’s breach of contract in the sum of $100: [156]-[158].

State of New South Wales v Stevens (2012) 82 NSWLR 106; [2012] NSWCA 415, referred to.

Breach of confidence claim

There was no evidence that third parties had shared any confidential information about the appellant with Dr Padhi. Nor was there a basis for inferring that Dr Padhi had accessed the appellant’s online accounts either directly or indirectly: [172]-[187].

Injurious falsehood claim against the Health District

Proof of malice is a necessary element in a claim of injurious falsehood. Malice requires that the statement was made mala fide or with a lack of good faith; a statement made in good faith will not satisfy the requirement of malice: [188]-[192].

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69, applied.

National Roads & Motorists’ Association Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1491; (2019) 291 IR 28; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1395, referred to.

There was no error in the primary judge’s finding that the notification given by Dr Padhi to AHPRA concerning the appellant was not motivated by malice but was done in good faith. The documents and evidence upon which the notification was based provided a well-founded basis for Dr Padhi’s concerns. Similarly, the letter sent by A/Prof Kotze to the HCCC attaching the AIMS reports, risk assessment and other documents was not motivated by malice. A/Prof Kotze was responding to a request by the regulator for documents and reports in relation to the appellant. No malicious intent can be inferred from A/Prof Kotze providing documents to the HCCC in the form in which they were prepared: [214]-[223].

Injurious falsehood claim against the Health District

The Pereira statement was not a statement concerning the appellant’s goods or business, nor a false statement, nor made to a third party; it was a statement as to what Charterhouse intended to do. Moreover, there was no error in the finding that the Pereira statement was not made with malice. It can be inferred it was made to protect Charterhouse’s business: [231]-[234].

The Harvey statement was not made to a third party nor was the statement malicious. The fact that a person uses language that is strong or conducts themselves in a way that is upsetting to the plaintiff does not, of itself, evidence malice: [235].

Aldi Foods Pty Ltd v Transport Workers Union of Australia [2017] FCA 1004, referred to.

Judgment

1. GLEESON JA: This appeal concerns a claim for damages by a medical practitioner against a Health District and a recruitment company which arranged the placement of the medical practitioner with the Health District to provide locum services as a visiting medical officer (VMO).

2. As to parties, the appellant, Dr Sujatha Chandrasekaran, is a qualified medical practitioner and specialist psychiatrist. The first respondent is the Western Sydney Local Health District (the Health District). It operates several hospitals at various locations, including at Blacktown and Westmead. The Westmead hospital campus comprises: (i) Westmead Hospital, a comprehensive public general hospital, (ii) The Children’s Hospital, and (iii) Cumberland Hospital, a public psychiatric hospital. Redbank Acute Adolescent Unit (Redbank House) is a unit of Westmead Hospital which provides an inpatient facility that cares for patients who are children and adolescents. The second respondent, Charterhouse Medical Pty Ltd (Charterhouse), is an international recruitment company whose business included the recruitment of medical practitioners.

3. In December 2017, Charterhouse arranged a placement for the appellant with the Health District for the provision of locum services as a VMO psychiatrist at Redbank House. At all material times Dr Ashwini Padhi was the clinical director of Redbank House. The short-term placement was for the period 27 December 2017 to 2 March 2018. It came to an end on 15 January 2018 in the circumstances described below.

4. In June 2018, the appellant commenced proceedings against the Health District and Charterhouse. The claims which were ultimately pressed against the Health District were for alleged misleading or deceptive conduct, breach of contract, breach of confidence and injurious falsehood. The claims pressed against Charterhouse were for alleged misleading or deceptive conduct and injurious falsehood.

5. The appellant was represented at the trial by counsel. The hearing was initially fixed for five days. The hearing was protracted and occupied some 19 days between December 2019 and July 2020. In closing submissions, the appellant claimed damages of $57,005.54 for the balance of the fixed term of her contract, past economic loss from 4 March 2019 of $868,989, future economic loss from 4 December 2019 of $1,472,170, together with out-of-pocket expenses, general damages/non-economic loss and aggravated damages.

6. After judgment had been reserved, the appellant sought to re-open her case by notice of motion filed 16 December 2020. That application was dismissed on 12 March 2021.

7. On 29 July 2021, the primary judge (Button J) rejected all claims and entered judgment for the Health District and Charterhouse: Chandrasekaran v Western Sydney Local Health District [2021] NSWSC 920 (the principal judgment). On 16 December 2021, the primary judge made the following costs orders in favour of the Health District and Charterhouse:

(1)   The plaintiff must pay the costs of the Health District on the ordinary basis up to and including 28 September 2018 and on the indemnity basis from 29 September 2018.

(2)   The plaintiff must pay the costs of Charterhouse on the ordinary basis up until 19 July 2019, and on the indemnity basis from 20 July 2019.

8. By her appeal the appellant challenges the whole of the decision below. The appellant was unrepresented in this Court. She sought leave to adduce further evidence on appeal. The Court indicated that it would deal with that application in its reasons for judgment. For the reasons set out below, the appeal should be allowed in part, in relation to the breach of contract claim, however, the appellant failed to prove that she suffered any actual loss. The appellant is entitled to an award of nominal damages in the amount of $100 for the breach of contract which has been established. The application to adduce further evidence on appeal should be refused.

The parties and the contractual relationships

9. There were several different agreements between the parties. The appellant and Charterhouse entered a written agreement dated 14 July 2017 which recorded the terms upon which Charterhouse proposed to register the appellant’s interest in providing services to its medical clients (the recruitment agreement). Clause 2 of the recruitment agreement provided that “[a]lthough [Charterhouse] will use its every available resource to place you with a client, it makes no guarantees that it will successfully secure work for you, nor does it have any obligation to do so”. In oral submissions in this Court, the appellant complained about the failure of Charterhouse to obtain a placement for her in Darwin in late 2017; however, no claim was made against Charterhouse in the underlying proceedings for breach of the recruitment agreement.

10. The other agreements, each dated 11 December 2017, were (i) the placement agreement between Charterhouse and the Health District, (ii) the confirmation of the placement between Charterhouse and the appellant (the confirmation), and (iii) the locum agreement between the appellant and the Health District, which was an annexure to the confirmation signed by the appellant. It is necessary to refer in some detail to the circumstances in which those agreements were entered into.

11. In November 2017, Mr Daniel Harvey, a consultant with Charterhouse, discussed with the appellant a VMO position in adult psychiatry at Blacktown Hospital. The timing of that position did not suit the appellant. On 28 and 29 November 2017, Ms Aimee Greenfield, another consultant with Charterhouse, exchanged several emails with the appellant in relation to a potential locum placement sought by “Cumberland” for a “C&
    A role”, that is, child and adolescent role. The appellant informed Ms Greenfield on 28 November 2017 that she was willing to cover a child and adolescent role until an adult role became available, stating in her email response at 11:11 am:

“Ok

I can do the child role for a bit before the adult role needs filling I guess.

Regards,

Sujatha”

12. On 5 December 2017, Ms Greenfield and the appellant exchanged further emails in relation to the appellant’s availability “to cover Redbank covering the C&A role, but with a potential adult position”. Ms Greenfield gave the appellant the contact details for Dr Padhi and encouraged her to speak with him directly about the role. The appellant telephoned Dr Padhi on 5 December 2017 who told her that she would be performing services at Redbank House and described the unit, the age group of patients, and the number of patients allocated to a staff specialist per week. His evidence was that he did not tell the appellant that she would be working at Cumberland Hospital. The appellant informed Ms Greenfield that she would like to go ahead with the child and adolescent role at Redbank House, stating in her email of 5 December 2017 at 1:46 pm:

He understands I am not child and adolescent trained but aware of my young adult experience and happy for me to trial it. If all goes well, I can do until end of Feb. Happy to transition to Adult when possible.

13. On 8 December 2017 at 11:24 am, Mr Harvey circulated by email to Ms Parmjit Rai of the Health District a draft of the placement agreement in relation to the appellant as a “VMO Adult Psychiatrist” with a start date of 1 January 2018 until 30 March 2018. In an email from Ms Rai to the appellant at 12:16 pm that day, Ms Rai said that the copy of the confirmation “I have sent you”, “needs to be rectified as the start date is incorrect”. The appellant, Mr Harvey and Ms Rai exchanged emails on 8 December 2017 concerning the proposed rate of pay and start date. The appellant sent an email at 5:35 pm to Ms Rai, copied to Mr Harvey, Dr Padhi and Ms Greenfield purporting to accept an offer:

I have been liaising with you all and I am accepting your offer. I understand there are corrections that need to be made on the contract. I understand this will be ready on Monday. The agreed start date was the 27^th December to 28^th Feb. There may be corrections to the pay rate. I have tried to contact Charterhouse regarding this and have received emails to the effect that the contract will be adjusted. Please contact me if anything further is required.

14. On 11 December 2017 Mr Harvey circulated to the appellant several drafts of the confirmation relating to the locum VMO position with the Health District, which included as annexure A the draft locum agreement. There is no dispute that in making these offers, Charterhouse was acting as agent for a disclosed principal, the Health District. Mr Harvey also circulated by email to the Health District on 11 December 2017 drafts of the placement agreement recording the terms on which Charterhouse was to engage the appellant on behalf of the Health District to provide locum services.

15. In the draft confirmation which Mr Harvey emailed to the appellant at 11:20 am, the role title was described as “VMO Adult Psychiatrist” and the term was 2 January 2018 to 2 March 2018. The appellant responded by email at 12:55 pm to Mr Harvey, Ms Greenfield, Dr Padhi and Ms Rai, noting that the start date and end date needed to be corrected. She also queried her role title and asked:

I understand I am also doing some child and adolescent work as well as adult VMO as stated in the annexure towards the end as only adult? Does this need to be changed.

16. Further emails followed, including from Ms Rai to Mr Harvey, the appellant and Ms Greenfield at 1:25 pm stating that she needed to speak with Mr Harvey to get the paperwork sorted, specifically the contract needed changing, a CV was required from the appellant, and several things needed to be sorted and signed off “from our end as well”.

17. Mr Harvey sent further revised drafts of the confirmation to the appellant in the afternoon of 11 December 2017. In an email to Mr Harvey at 3:34 pm, copied to Ms Greenfield and Ms Rai, the appellant again queried the role title of “Adult VMO Psychiatrist”, and asked:

Should it be VMO Psychiatrist? I am technically doing some child and adolescent and adult psychiatry.

18. At 3:58 pm the appellant emailed Mr Harvey, Dr Padhi and Ms Rai, and asked:

Does the contract need to stipulate Child and Adolescent Psychiatrist and Adult Psychiatrist, or would the description VMO Psychiatrist be sufficient? Sorry to bother you.

19. Ultimately, the role title was amended to “VMO Psychiatrist” in the final version of the confirmation and annexed locum agreement circulated by Mr Harvey to the appellant on 11 December 2017, which the appellant signed and returned that day. The locum agreement described the Hospital/Practice or Client as “Cumberland Hospital”; the location of services as “1-11 Hainsworth Street, Westmead”; and the “Term” of services as 27 December 2017 to 2 March 2018.

20. The locum agreement stated that the appellant was an independent contractor, and provided:

The Client cannot guarantee, and no warranty is made, as to the amount of work that may ultimately be required, or the total Fee that may be payable, during the Term. You and the Company acknowledge that the amount of work required by the Client will at all times remain at the Client’s complete discretion, and a Fee will only be payable with respect to Locum Services actually rendered.

21. At 6:16 pm, the appellant emailed Dr Padhi stating:

In light of a variety of changes being made I will proceed as a VMO Psychiatrist as opposed to Adult VMO which confuses the position when I will be doing child and adolescent work also for a period.

22. Dr Padhi replied to the appellant by email at 9:47 pm, copied to Ms Greenfield, Mr Harvey and Ms Rai:

You do not need to proceed on anything that makes you unsure. We are an award winning service and will only employ anyone who wants to make a difference. If you have any doubt please do not join. If you feel you want to work in our unit I would love to welcome you. Equally would respect your decision [if] you have any doubts.

23. On 12 December 2017 at 3:25 pm, the appellant emailed Mr Harvey and Dr Padhi, among others, stating that she “never had any doubts” and had turned down another locum “to work for you”, explaining that she wanted clarification from a medical defence perspective as to the role title. Also on that day, Mr Harvey telephoned the appellant who confirmed she required no changes to the confirmation.

24. On 20 December 2017, the appellant spoke with Dr Padhi about her reporting arrangements for her first day of her placement. Dr Padhi informed the appellant that she should meet him at Redbank on her first day.

The appellant’s placement at Redbank House

25. On 27 December 2017, the appellant commenced duties as a locum VMO at Redbank House, reporting to Dr Padhi. At lunch that day with the appellant, among others, Dr Padhi mentioned his love of Berlin (the Berlin statement).

26. During the appellant’s placement with Redbank House, Dr Padhi became aware of verbal complaints about the appellant from the parents of two patients. Those incidents on 9 and 10 January 2018 were recorded in Advanced Incident Management System (AIMS) reports prepared on 16 January 2018, and revised on 18 January 2018 by Ms Sumithira Joseph, the Health District’s operations manager attached to Redbank House. Ms Joseph was responsible for managing the AIMS reports.

27. On 10 January 2018, Dr Padhi had an informal meeting with the appellant to discuss the concerns that had been raised by staff at Redbank House and the families in relation to the incidents involving the two patients. Also on 10 January 2018, Mr Harvey telephoned the appellant to check whether the placement was proceeding as she expected. The appellant stated that all was going well. The appellant gave evidence that she did not recall this conversation.

28. Conversations with the appellant on Friday, 12 January 2018, led Dr Padhi to the view that the appellant was exhibiting symptoms consistent with paranoia as a result of which he became concerned about her employment in a position involving caring for troubled children and adolescents. The detail of those conversations was disputed at trial. However, it is convenient, at this point, to reproduce Dr Padhi’s note of the conversations recorded in his statement:

…

Incident with Dr Padhi on the 12^th January 2018

Dr Chandrasekhran (sic) met in the corridor requesting a meeting around 2pm.

We met in her room and she informed me of her plans to move to UK and wondered if I could help her in finding a job in London

When I asked her about her future plans she informed me that she would do part time work to fund herself for Psychoanalytic Training

I suggested that she explore the D58 and D59 courses run by Tavistock and Portman Clinic

She stated that she was looking at the same courses and enquired if I knew of any psychoanalyst for her personal analysis

I suggested the name of my personal analyst Mr Kannan Navaratnem. On hearing the name her entire demeanour changed and she stated “are you joking?” and repeated the same question several times. She said she had met Mr Navaratnem in a recent conference in Europe. I pointed out that this may be a coincidence but she would not let go asking me repeatedly how I knew him despite being told that he was my analyst several years ago.

She then went on to state that “You must be knowing everything about me”. I replied by saying I did not know anything about her apart from the details in her CV. At this point she stated that she was a victim of identity fraud. She said that she knew the people behind this and was working on it. She said the impostor was sending a number of [e]mails (sic) to the Australian and UK government and that she had a “red alert” on her google account. She said that her Facebook and other social media accounts had been hacked and that she was getting death threats.

She said she had always found it weird why Mr Navaratnem had not been warm in his interaction and said that he had mentioned to her that her reputation amongst the psychiatrists in Australia had been tarnished.

By this time I had to go for another meeting and I excused myself and when I came out of the meeting she was standing by the door and showed me the underground tube map of London enquiring “which station did you get down at?”

When I did not understand her query and asked her to elaborate she stated that she wanted to know the station I got down at for my psychoanalysis. I mentioned that I was not sure to which she responded by saying I had to remember as I was going for analysis for years. She then pointed out Kensal Green saying this must be the station. I once again excused myself as I was going to the ward to see a family. She followed me and on my return to the nursing station took her iphone and showed me a picture of a house enquiring if this was the house Mr Navaratnem was using for his analysis. Once again she was persistent constantly asking me to confirm the same.

29. The appellant claimed in the proceedings that the statements made by Dr Padhi (i) about his love of Berlin, (ii) that he had done the D58 course at the Tavistock and Portman Clinic in London, and (iii) he had seen Mr Kannan Navaratnem, a psychoanalyst, in London, involved parody skits and gaslighting of the appellant by repetition of her personal information – which allegedly had been obtained through hacking of her online accounts – in conversations with her. Those allegations were relied upon by the appellant for claims of misleading or deceptive conduct, injurious falsehood, breach of confidence, fraud and conspiracy. In closing submissions at trial, only the breach of confidence claim was pressed in relation to this alleged conduct.

29. On Monday, 15 January 2018, Dr Padhi raised with Ms Joseph his concerns about the appellant. Together, they had a telephone discussion with Ms Kristin Adair, human resources manager, who told Dr Padhi to escalate the matter to Associate Professor Beth Kotze, executive director mental health service, and to prepare a risk assessment and a brief to the chief executive. After a discussion with Dr Padhi, A/Prof Kotze told him that (i) it seemed that the appellant was not well and the Health District could not take the risk of allowing her to continue working as her work involved looking after vulnerable patients, (ii) the matter needed to be escalated to the chief executive verbally, (iii) once approval was obtained, Dr Padhi should meet with the appellant and terminate her services, and (iv) he also needed to prepare a written brief as soon as possible.

30. Ms Joseph commenced preparing a risk assessment in respect of the appellant using the Health District’s Risk Assessment Tool (RAT), which was an internal document intended to record risks and concerns that were operational as opposed to clinical in nature. Ms Joseph graded the risk presented by the appellant as “Extreme”.

31. Ms Joseph also commenced preparation of a brief to be sent to Mr O’Connor, the chief executive of the Health District. At about 4:00 pm on 15 January 2018, Ms Adair informed Dr Padhi that he could go ahead and inform the appellant that her services would be terminated. Dr Padhi and Ms Joseph met with the appellant at about 5:20 pm and Dr Padhi informed the appellant, “[u]nfortunately, we will not be able to allow you to continue in your current role”.

32. Dr Padhi’s note of this meeting with the appellant records:

During this meeting I initiated the conversation explaining the concerns raised by various parties. On being informed that we will not be able to allow hr to continue in her current role Dr SC stated that “I saw this coming” and that “this has happened to me before”

She said she had thought about the conversation with me last Friday and stated “Mr Navaratnem must have been involved”. When I pointed out that I had no communication with Mr Navaratnem for several years now she said “without going into details and discussion I know now why I was being asked for three references and why there were so many delays in my contract”

She went on to repeat the same things as before stating that she was being followed, receiving death threats and that her reputation had been tarnished by this impostor who had stolen her identity and that her lawyers were involved in the investigations. She said she was a victim of cyber crime, had her social media accounts hacked and that she was being spit at; assaulted and abused”

At this point I had to terminate the conversation and Sumithira requested her to hand over the keys and access cards which she did.

34. Ms Joseph’s note of this meeting recorded her observations that when informed of the termination of the placement, the appellant said among other things:

�   “This has happened to her before and I saw it coming” (I understood as termination)

�   “I was expecting something like this”

�   “number of checks was requested, this makes sense now”

�   “The Registrars were taking about me”

�   ‘”the families are difficult”

�   “The termination was due to a Mr. Navaretnam”, based on the discussions that was had between her and Dr Padhi

�   Accused Dr Padhi of having some connection with Mr Navaretnam which is why her contract was terminated. When challenged by Dr Padhi she did accepted it

�   Appeared paranoid, fixated and obsessed about Mr Navaretnam

�   “My emails and phone been hacked; there is a google alert on her”

�   She have solicitors working on this

�   “I have been spit at; assaulted and abused”

�   “Why is this been done with Sumithira present”.

Events after 15 January 2018

35. On or about 17 January 2017, Dr Padhi told Mr Harvey that there had been concerns about the appellant which he could not go into and that her placement had been terminated. Mr Harvey passed that information to Mr David Pereira at Charterhouse, who instructed Mr Harvey, “[a]t this stage, Charterhouse shouldn’t arrange further placements for Dr Chandrasekaran” (the Pereira statement). Although not pleaded, in closing submissions at trial the Pereira statement was relied upon by the appellant as one of the injurious falsehood claims against Charterhouse.

36. On 18 January 2018, Ms Joseph updated the AIMS reports for two patients by changing the Severity Assessment Code (SAC) for each of the reports. The initial SAC for both incidents of “2” was downgraded to “4” based on the advice of Ms Joumana Khoury of the clinical governance team. Ms Joseph gave evidence that a SAC 1 means an incident presents an extreme risk, requiring immediate action; and a SAC 4 means that the incident presents a low level of risk for the patient.

37. The Risk Assessment prepared by Ms Joseph dated 18 January 2018 was not fully completed, nor was it signed by either Dr Padhi or any member of the executive management of the Health District as contemplated in the document prepared by Mr Joseph.

38. The brief to the chief executive seeking formal approval of the termination of the VMO appointment was finalised by Ms Joseph on or about 20 January 2018. The list of attachments to that brief included the Risk Assessment, one of the AIMS reports, and statements from Dr Mahmood, Ms Joseph, Dr Surabhi, Ms Elissa Yoo, and Dr Padhi.

39. On 9 February 2018, Dr Padhi made a notification about the appellant to the Australian Health Practitioners Regulation Authority (AHPRA), annexing several statements (it seems from Dr Mahmood, Dr Verma and Dr Balaji) and a statement from Ms Yoo. On the same day, AHPRA forwarded this notification to the Health Care Complaints Commission (HCCC) by email.

40. On 17 July 2018, in response to a request by the HCCC for “all reports and documentation in relation to the Health District’s investigation into the conduct and health issues concerning [the appellant]”, A/Prof Kotze sent a letter to the HCCC containing 11 attachments, which included the brief sent to the chief executive, two AIMS reports (2545437-20 and 2545439-20), the Risk Assessment, and the statements of Dr Padhi, Ms Joseph, Dr Verma, Dr Mahmood, Dr Balaji and Ms Yoo.

41. The notification by Dr Padhi to the AHPRA on 9 February 2018 (which was on-forwarded by AHPRA to the HCCC), and A/Prof Kotze’s 17 July 2018 letter to the HCCC, were the subject of the injurious falsehood claim against the Health District.

42. The appellant commenced the underlying proceedings on 7 June 2018. By email of 1 July 2018 to Mr Harvey, copied to Ms Greenfield, the appellant sought Charterhouse’s address for service of legal proceedings. Mr Harvey intended to forward that email to his supervisor, Mr Pereira, but inadvertently replied to the appellant and Ms Greenfield on 2 July 2018, in which he referred to the appellant as follows: “Dave, this woman is cray. This is the cray google car lady who got fired from WSLHD” (the Harvey statement). Mr Harvey attempted to recall the email and it was not distributed any further. The Harvey statement was also the subject of the injurious falsehood claim against Charterhouse.

43. On 24 October 2018, the Medical Council suspended the appellant’s registration as a medical practitioner by imposing a condition on the appellant’s registration not to practice “as a psychiatrist” or “medicine”, pursuant to s 150(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law). The Medical Council also referred the matter to an Impaired Registrant’s Panel subject to the consultation provisions of s 150 of the National Law. The appellant brought an appeal out of time under s 159B of the National Law before the Tribunal. On 26 November 2020, the Tribunal refused an extension of time in which to appeal from the decision of the Medical Council of 24 October 2018. The appellant sought leave to appeal against that interlocutory decision of the Tribunal. That application was refused by this Court on 6 August 2021.

Issues on appeal

44. The further amended notice of appeal filed 7 October 2022 (the notice of appeal) is a lengthy and discursive document; the nine appeal grounds occupy 33 pages with numerous subparagraphs. Some of the grounds were not the subject of the appellant’s written submissions. The notice of appeal does not comply with the rules as it fails to state briefly, but specifically, the grounds relied on in support of the appeal: Uniform Procedure Rules 2005 (NSW) (UCPR), r 51.18(1)(e).

45. Although there is substantial overlap in the contentions under some grounds, it is appropriate to deal with the grounds separately in the following order: (1) bias; (2) refusal of re-opening application; (3) procedural fairness; (4) errors of law; (5) misleading or deceptive conduct; (6) breach of contract; (7) breach of confidence; (8) injurious falsehood; (9) other grounds; and (10) the application to adduce further evidence on appeal.

Bias (ground 4)

46. Questions of bias should be addressed first, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete). That is because the necessary result, if bias is established, is a retrial: Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ).

47. The notice of appeal contained complaints of prejudgment (pars 1.63, 1.68, 1.8.1). The appellant did not specifically address this ground in her written submissions. She was asked in this Court whether she was alleging actual or apprehended bias. She answered that she was alleging both.

48. Allegations of actual bias against a judicial officer are serious and should not lightly be made. Nor are they readily made out. An allegation of actual bias must be distinctly made and clearly proved: see the discussion in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]. An allegation of actual bias in the form of pre-judgment requires that the appellant establish that the trial judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J; Hayne J agreeing at [176]). As Gleeson CJ and Gummow J observed at [71], “the question is not whether a decisionmaker’s mind is blank; it is whether it is open to persuasion”.

49. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31]. The plurality judgment in Michael Wilson observed at [63], it is necessary for the party asking a judge to disqualify him or herself, having identified the conduct said to give rise to the apprehension of bias through pre-judgment, to articulate the connection between the conduct and the possibility of departure from impartial decision-making with respect to the questions to be decided.

The appellant’s complaints

50. Three aspects of the conduct of the trial were relied on by the appellant for the complaint of actual or apprehended bias. It is said that the primary judge (i) repeatedly denied the admission into evidence of the patient health records (PHR) of two patients, where there was no objection by the appellant to being re-cross-examined, if necessary, (ii) repeatedly refused to admit IT reports of Mr Stephen New demonstrating that the appellant’s accounts were being illegally accessed and hacked, and (iii) denied the appellant cross-examination of Mr Harvey beyond one day.

51. In addition, the appellant relied on the reasons for judgment which are said to contain repeated attacks on the appellant’s credibility, yet the primary judge refused to assess demeanour and credibility of Dr Padhi. This complaint can be taken to be an allegation of actual bias because, as explained in Michael Wilson at [67]-[68], it is wrong to take into account the reasons for judgment published after the trial in deciding whether there was a reasonable apprehension of bias: cf the contrary view of Callinan J in Concrete at [179].

52. It is of assistance first to explain the circumstances in which his Honour made the evidentiary and procedural rulings of which complaint is now made.

PHR

53. The PHRs concerned the two young patients under the appellant’s care. The patient’s respective mothers raised concerns about the appellant’s care of their daughters.

54. Contrary to the appellant’s submissions, the circumstances in which the PHRs were not admitted into evidence were as follows: (a) the appellant, represented by trial counsel, objected to the tender by the Health District of PHRs relating to one of the patients during cross-examination of the appellant; the Health District did not press the tender and these records were marked MFI 7, (b) although the notes in MFI 7 and other PHRs relating to that patient in MFI 9 were shown to the appellant in re-examination, her counsel did not seek to tender the notes at that time, (c) after the appellant had concluded her evidence on Day 4 (5 December 2019), the appellant’s counsel foreshadowed an intention to tender the PHRs after subpoenaing further documents. The Health District objected to the appellant not closing her case unless counsel for the appellant was prepared for the appellant to be further cross-examined on the notes. The appellant’s counsel did not offer to recall the appellant, rather her counsel opposed that course, (d) later in the trial, the appellant sought to tender the PHRs while cross-examining the Health District’s witnesses on Day 11 (9 June 2020). The Health District successfully objected on the basis that it had been denied the opportunity to fully cross-examine the appellant on those documents, and it was unfair to permit the appellant to cross-examine its witnesses, who had not written many of the notes in issue; the primary judge’s ruling appears at T592-593, and (e) the appellant again attempted to tender the PHRs during cross-examination of Dr Padhi on Day 15 (8 July 2020) and again, the Health District successfully objected, although five pages of clinical notes to which Dr Padhi had referred in cross-examination were tendered without objection and became Ex X; the primary judge’s ruling appears at T881.39-.46.

55. Further and contrary to ground 1 (par 1.63) of the notice of appeal, there was no suggestion by the appellant’s counsel that she would return to the witness box. Indeed, on Day 4, counsel for the appellant agreed with an observation by the primary judge it would be “inconceivable” that were the PHRs admitted, the appellant would be recalled to the witness box.

IT reports

56. A report of Mr New dated 16 September 2016 addressed “To whom it May Concern” was tendered by the appellant’s counsel at trial on Day 4 (5 December 2019) on a limited basis. It was admitted not as to the truth of the fact of the unauthorised access to the appellant’s electronic accounts, but as “to the possible effect it may have had upon the belief of the [appellant]” and as evidence that the appellant had obtained that report at that time.

57. On Day 8 (2 April 2020), the appellant sought to tender a further report of Mr New dated 29 March 2020, which her counsel described as “nothing more than updating material”. That tender was opposed by the Health District and Charterhouse. The primary judge rejected the tender for the reasons given in an ex tempore judgment on 2 April 2020 which included:

Patently it is not proposed that Mr New is to be cross-examined; patently the document at its earliest was served on the first and second defendants’ legal teams on 29 March; and it is respectfully inconceivable that it could be received as expert opinion evidence in itself.

Counsel for the plaintiff has submitted that it will not be relied upon in that way. It will simply be a supplementation of the material that is already before me of a similar nature in the plaintiff’s case, not as to its truth but rather to show that there may have been an external explanation for the beliefs that the plaintiff has come to about interference with her digital presence. I refer in particular to what was agreed between the parties and me at TT 185 of 5 December 2019 line 28 and following.

If it is to be supplementation of the bases of the beliefs of the plaintiff expressed, it is said, many months ago, to Dr Padhi and also expressed, of course, in her oral evidence before me many weeks ago in my opinion as a simple matter of chronology it cannot play that role. That is because this document came into existence only a matter of days ago.

Quite apart from that, there is no evidence and there will be no evidence that the plaintiff has ever had regard to this updated report.

It follows then that, the report will not be admissible on the broad basis, that is, by way of s 79.

Similarly, it, as a matter of simple temporality, cannot be admissible on the limited basis.

58. On 16 December 2020, the appellant filed a notice of motion seeking leave to reopen her case to admit further evidence. The evidence was described in the appellant’s affidavit of 9 December 2020 as “new available” evidence of the hacking of her email accounts and the degree of digital compromise to her communications and identity. An amended notice of motion filed on 27 January 2021 sought additional relief, being orders in the nature of certiorari quashing the decisions of the Medical Council and the Tribunal referred to at [43] above. The appellant’s affidavit of 19 February 2021 annexed a further report of Mr New dated 15 February 2021 (the February 2021 report). The re-opening application was opposed by both respondents. The primary judge dismissed the amended notice of motion for the reasons given in an ex tempore judgment given on 12 March 2021, which included:

As for the other order sought, it is to re-open a matter that went for many days. During that time the plaintiff was represented by counsel and a solicitor. It has been reserved on my part for many months. It is said that the further evidence will show more definitively what I shall call the digital conspiracy, to which the plaintiff says she has been subject. She says it will go further and show that military intelligence is involved. She also suggests it might impugn, as I understand it, the defendants’ legal teams themselves. It is also said that there is a report from an expert that will take the matter significantly further.

But I think to be weighed against that is the fact that the matter extended over many days of hearing. As I say, it has been reserved for many months on my part.

Not only that, battle was well and truly joined on the last occasion. The thesis that the plaintiff was ill-treated by Dr Padhi, that there had been breaches of confidences, digital manipulations, “gaslighting” - to use a modern term - and a malicious conspiracy, was well and truly placed before me by way of the plaintiff's evidence, the cross-examination conducted by her counsel, and the final address of her counsel.

I think that battle is well and truly joined in this case, in requiring my determination as to whether Dr Padhi and others have been part of all that, that is one thesis. The alternative thesis is that the plaintiff's propositions in that regard are the result of ill judgment, or irrational beliefs, or she being divorced from reality.

I do not propose to go through the lists of factors that the cases speak of with regard to this question (see Australian Securities and Investments Commission v Rich (2006) 235 ALR 58; [2006] NSWSC 826; Goodman Fielder Consumer Foods Pty Ltd v GrainCorp Foods Australia Pty Ltd [2020] NSWSC 706).

I simply cannot accept that in all the circumstances I have set out that it would be in the public interest for this matter to be re-opened, and for there to be further evidence, cross-examination, so forth, and a further delay.

I believe that the public interest - and I use that term expansively - overwhelmingly militates against this matter being re-opened.

Limitation on cross-examination of Mr Harvey

59. Mr Harvey gave evidence on Day 16 (9 July 2020) of the trial. He was cross-examined extensively by the appellant’s counsel. The transcript records that following the morning tea adjournment, his Honour informed counsel for the parties that 15 minutes needed to be allowed for re-examination by counsel for Charterhouse and hence the cross-examination must finish by 3:45 pm that day. Counsel for the appellant responded that this timing did not trouble him. Cross-examination by the appellant’s counsel concluded later that afternoon. No complaint was made by the appellant’s counsel of inadequate time for cross-examination of Mr Harvey.

Apprehended bias

60. The focus of the claim of apprehended bias is not on whether the judge decided the case adversely to one party, but whether there is a reasonable apprehension the judge will not decide the case impartially or without prejudice: Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, where Mason J explained at 352:

There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”. (Citations omitted.)

61. Further, as Wheelahan J said in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [260] (Wigney and Abraham JJ agreeing):

The fact that a party has been unsuccessful should not, without more, lead the fair-minded lay observer to think that the judge has done other than bring an impartial and unprejudiced mind to bear on the matters in issue: Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11] (Kerr, Davies and Thawley JJ).

62. In this case there are two difficulties with the assertion of apprehended bias. First, the appellant’s submissions did not identify what might have led the judge to decide the case other than on its legal or factual merits. Second, assuming that the appellant is alleging prejudgment, the appellant failed to articulate any logical connection between the primary judge’s conduct in making rulings on evidence, procedural decisions in the course of the trial and the re-opening application after judgment had been reserved, and the possibility that the judge might depart from impartial decision-making in determining the issues to be decided in the proceedings: Michael Wilson at [67].

63. It is also said that the primary judge yelled or spoke inappropriately towards the appellant during the re-opening application. The transcript of the hearing on 12 March 2021 was not provided to the Court by the appellant, despite this omission from the Appeal Books being brought to the appellant’s attention prior to the hearing of the appeal. There is no material from which an inference could be drawn that the primary judge behaved in the manner alleged by the appellant.

Actual bias

64. Contrary to the appellant’s submission, the primary judge made an assessment of the credibility and demeanour of both the appellant and Dr Padhi, noting at [49] that demeanour played a very limited role in his assessment of their evidence. His Honour considered that Dr Padhi was “thoroughly honest”, and that the appellant was “sincere” in the sense of believing in the assertions that she was making and was not dissembling or deliberately lying, and that any confusion in the appellant’s evidence, of which there was some, could be put down to the passage of time, the plethora of lengthy affidavits when self-represented, and her emotional investment in the proceedings, but did not consider her to be a dishonest person: at [49].

65. The nature of legal proceedings involves the judge making decisions. On the materials before this Court this is no basis for inferring that his Honour was not open to persuasion because the appellant had been unsuccessful on some evidentiary and procedural rulings made in the course of the trial and on the re-opening application.

66. The circumstances in which actual bias can be demonstrated solely from the published reasons for decision are considered to be rare and exceptional: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (von Doussa J), approved in Toth v State of New South Wales [2022] NSWCA 185 at [46]; Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [47]. See also Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [74]. This is not an exceptional case. The credit and demeanour findings by his Honour do not provide any basis for a conclusion that the judge was not open to persuasion on any issue to be decided at the trial.

67. Ground 4 is not made out.

Refusal of re-opening application (ground 7)

68. The appellant was self-represented on the re-opening application in March 2021. One basis of that application was to seek leave to adduce further evidence prior to judgment (which had been reserved) of the alleged hacking of the appellant’s email account and the degree of digital compromise to her communications and identity. The other basis of that application was to seek relief by way of judicial review in relation to the decisions of the Medical Council on 24 October 2018 and the Tribunal on 26 November 2020 which are referred to at [43] above.

69. In written submissions dated 19 February 2021, the appellant referred to “new evidence that has come to light regarding where the emails she sends are being forwarded to, and the undeniable link between the persons hacking her accounts with those to whom her emails are being forwarded, as detailed in the expert witness report (‘Report’) prepared on 15 February 2021”. This was a reference to Mr New’s February 2021 report. It was submitted that the further evidence was precise, short and technical, and should leave be granted to adduce further evidence after re-opening, a subpoena to produce electronic evidence and oral evidence was sought to be issued to a person named in the report.

70. It is said that the primary judge erred in refusing the re-opening application without providing reasons and that in doing so he favoured the respondents. That cannot be accepted. His Honour gave an ex tempore judgment at the conclusion of the hearing on 12 March 2021. Insofar as those reasons addressed the foreshadowed further evidence, they have been extracted at [58] above. It is not otherwise necessary to reproduce his Honour’s reasons for refusing leave to re-open to allow the appellant to add a new claim for relief way of judicial review in relation to the decisions of the Medical Council and the Tribunal. That is because there is no ground of appeal challenging the refusal of the re-opening application for that purpose.

71. The interlocutory decision to refuse the appellant’s re-opening application involved the exercise of the Court’s discretion. Accordingly, the “constrained” or “deferential” standard of appellate review of the exercise of a judicial discretion in House v The King applies: (1936) 55 CLR 499 at 504-505; [1936] HCA 40. As stated in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], it is necessary for the appellant to demonstrate that the primary judge:

1. made an error of legal principle;

2. made a material error of fact;

3. took into account some irrelevant matter;

4. failed to take into account or gave insufficient weight to, some relevant matter; or

5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.

72. The appellant’s written submissions did not identify any House v The King-type error in his Honour’s discretionary decision. When the Court drew this to the appellant’s attention, the appellant said in reply that his Honour acted on wrong principle and mistook the facts. However, no relevant principle or material error of fact was identified by the appellant.

73. Given (i) the lengthy delay in making the re-opening application, (ii) the different purpose for which the appellant sought to adduce further evidence from Mr New as distinct from the limited basis on which the September 2016 report had been admitted at trial, (iii) the fact that the February 2021 report did not comply with the expert witness code of conduct (UCPR, r 31.23) and (iv) allowing the re-opening application would significantly expand the issues beyond those which had been contested at a protracted trial of 19 days over a period of six months, it was well open to his Honour in the exercise of his discretion to refuse the re-opening application for the purpose of adducing further evidence. Ground 7 should be rejected.

Procedural fairness (ground 5)

74. Ground 5 overlaps with ground 4, however, it is necessary to deal with ground 5 separately as it asserts that the hearing miscarried due to a denial of procedural fairness in the conduct of the trial. It is said that the primary judge denied the appellant the opportunity to present her case relying upon particular evidence and the opportunity to cross-examine particular witnesses on certain topics by:

1. denying the admission of the PHRs of both patients and to allow the appellant to cross-examine on those documents;

2. refusing to admit into evidence the February 2021 report of Mr New indicating unauthorised and illegal access to the appellant’s accounts which included hacking;

3. refusing the appellant’s request for the transcript of the hearing of her motion to re-open on 12 March 2021; and

4. limiting cross-examination of Mr Harvey to one day only.

75. As to (1), the complaint of unfairness concerning the PHRs is based on the appellant’s dissatisfaction with the forensic decisions made by her counsel at trial with respect to the tender of the PHRs, which decisions were sought to be redressed by her counsel later in the trial, as explained at [54]-[55] above, in a manner which would have resulted in manifest unfairness to the Health District. No error in rejecting that tender has been demonstrated.

76. As to (2) above, the appellant’s inability to rely upon the February 2021 report was a consequence of the refusal of the re-opening application and no error has been shown in that discretionary decision. There was no unfairness to the appellant in not being permitted to adduce the February 2021 report from Mr New after judgment had been reserved.

77. As to (3) above, the complaint about access to the transcript of the hearing on 12 March 2021 proceeds upon a misconception as to the procedure for parties to obtain a court transcript. In accordance with Practice Note SC Gen 2 – “Access to court files”, parties and their legal representatives are entitled to obtain transcripts of court proceedings. Transcripts can be ordered through the online registry or from Reporting Services Branch (court reporting). It was a matter for the appellant to make an application to court reporting to obtain a copy of that transcript.

78. As to (4) above, there was no unfairness in his Honour’s procedural ruling limiting cross-examination of Mr Harvey by a mere 15 minutes on Day 16 (9 July 2020), to ensure that Charterhouse was permitted appropriate time for re-examination that day. The transcript records that the small limitation on the time permitted for cross-examination of Mr Harvey was agreed with all counsel. There was no subsequent complaint by the appellant’s counsel of inadequate time, nor any request for further time to cross-examine Mr Harvey.

79. None of the matters complained of constitutes a denial of procedural fairness in the conduct of the trial. Ground 5 should be rejected.

Errors of law (ground 8)

80. Ground 8 overlaps in part with ground 5. It is contended that evidentiary rulings with respect to (i) the PHRs, (ii) the IT report, (iii) a medical certificate about the appellant, and (iv) a reference concerning the appellant, were errors of law.

81. The complaints in (i) and (ii) have been addressed in ground 5 above. No error of law has been demonstrated. The complaints in (iii) and (iv) were not the subject of any written submissions by the appellant. Those complaints are without merit.

82. As to (iii), although the Court was not taken to any medical certificate in the appeal books, it seems that the appellant has in mind the document referred to in the appellant’s email to Ms Kless, solicitor for the Health District, in October 2019, as to which the appellant submitted on the re-opening application that email “tracings” showed that Ms Kless forwarded the October 2019 email to unidentified persons in October and November 2020 containing a “3 sentence paragraph about a medical certificate for the [appellant]”. A footnote to this submission refers to annexure SC-13 to the appellant’s affidavit of 9 December 2020. However, annexure SC-13 does not include the contents of the email which refers to a medical certificate about the appellant.

83. Since no error has been demonstrated in relation to the interlocutory decision refusing the re-opening application, there is no basis for asserting any error of law with respect to the evidentiary status of material annexed to the appellant’s affidavit in connection with the unsuccessful re-opening application.

84. As to (iv), on Day 3 (4 December 2019) the appellant unsuccessfully sought to read an affidavit of Dr Annette Foster of 27 November 2019. That affidavit was not included in the appeal books, but it seems from the transcript of Day 3 that Dr Foster had worked with the appellant at Kalgoorlie Hospital and had expressed her impressions about the appellant in her affidavit. His Honour rejected this affidavit on the ground of prejudice to the defendants, given the late service of the affidavit meant that the defendants were deprived of the opportunity to meet Ms Foster’s account which related to a different hospital. No attempt was made by the appellant in oral argument to demonstrate any error in that evidentiary ruling.

85. None of the matters complained of constitute an error of law. Ground 8 should be rejected.

Misleading or deceptive conduct

86. The applicable principles are well-established. Conduct will be misleading or deceptive if, viewed as a whole, it has a tendency to lead a person into error: Australian Competition and Consumer Commission v TPG Internet Pty Limited (2013) 250 CLR 640; [2013] HCA 54 at [39] (French CJ, Crennan, Bell and Keane JJ). The required analysis is objective, requiring analysis of all the circumstances: Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592; [2004] HCA 60 (Butcher) at [111] (McHugh J), [39] (Gleeson CJ, Hayne and Heydon JJ).

87. Conduct will not be misleading or deceptive if all it does is to cause confusion or wonderment: Campomar v Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at [106] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

88. Although the factual sub-stratum of the claims against the Health District and Charterhouse overlap it is appropriate to address these claims separately.

Claim against Health District

89. In closing submissions at trial, the appellant reframed her pleaded claim and contended that (i) the Health District engaged in misleading or deceptive conduct by representing to the appellant that the locum position at Redbank House was an adult, rather than a child and adolescent, position, and (ii) there was never any intention to have the appellant work for the duration of the contract.

90. The Health District objected that the claim as reframed was never pleaded and should not be permitted in those terms. It also submitted that the claim must fail on the facts because the evidence overwhelmingly confirmed that the nature of the role at Redbank House, as a child and adolescent role, was fully disclosed prior to the appellant’s entry into the locum agreement on 11 December 2017, and that the appellant was subjectively aware of that fact upon it executing the contract.

91. The primary judge addressed the misleading claim at [60]-[85]. After summarising the appellant’s submissions at [63]-[72], the dispositive reasons for rejecting this claim are given at [73]-[85]. It is convenient to set out [74]-[75], [76] (in part) and [78]-[80]:

[74]   … as a matter of objective fact, the plaintiff arrived at Redbank on the appointed day and continued to work there; in other words, it is not as if she promptly left once she realised the age of the patients under her care.

[75]   Nor is it only because there is no record of any complaint having been made by the plaintiff whilst she was a VMO about the age of her patients, either to the Health District or Charterhouse.

[76]   It is primarily because the email chains passing between the plaintiff, officers of the Health District, and employees of Charterhouse in the period leading up to her appointment soundly demonstrate that the plaintiff was well aware of the nature of the work that she was to undertake. …

[His Honour then gave as one example at [76] and [77] the email exchange between Ms Greenfield and the appellant on 28 November 2017, which is referred to at [11] above.]

…

[78]   The proposition that the plaintiff was under any misapprehension as to the nature of the work she was to undertake is, with respect, simply unsustainable.

[79]   Finally, to the extent that, when cross-examined about these documents, the plaintiff at Tcpt, 6 December 2019, 326(6)-326(25) raised the possibility that they had somehow been tampered with and were false or forgeries, I firmly reject that. And the assertion of that possibility by the plaintiff under oath supports my analysis of her credibility and states of mind already provided under the rubric of breach of confidence.

[80]   In short, as a matter of fact derived from clear documentary evidence, I am affirmatively satisfied that the plaintiff was well aware that she would be working with children and adolescents at Redbank, and accordingly that the Health District did not mislead her in that regard.

92. His Honour said that the working conditions at Redbank House may have been sub-optimal, but that did not establish a cause of action: at [81]. His Honour rejected the appellant’s contention that officers of the Health District deliberately “set the plaintiff up to fail” and never intended her to fulfil the entire proposed period as a VMO: at [82].

93. His Honour also made a contingent finding at [83]-[84] that the appellant had failed to establish causation.

Appellant’s submissions

94. It is said that the appellant was “misled by deliberate misrepresentations that were intended to confuse” by failing to clarify her role, “indicating that she had no option but to assume the contractual agreement between herself and [Charterhouse] and the Health District, and [Charterhouse and the Health District], that she would be working at Cumberland Hospital in adult services, which is a location and hospital distinct from Redbank House”.

Decision

95. Contrary to the appellant’s submissions, the appellant did not labour under an erroneous assumption as to either her role or the location at which she was to provide locum services, namely Redbank House.

224. His Honour rejected both claims against Charterhouse. Addressing the Pereira statement, his Honour found that the first, second and third elements of the tort of injurious falsehood were not established because: (i) the words spoken by Mr Pereira were not a statement about the appellant, Mr Pereira did not say anything injurious about the appellant, those words were in the nature of a command or firm suggestion as to what Charterhouse should not do in the future, (ii) the statement was not made to a third party, it was made by one employee of Charterhouse to another, and (iii) malice was not established: at [136]-[138].

225. Addressing the Harvey statement, whilst finding at [141], [143] that Mr Harvey intended to convey that, in his opinion, the appellant was mentally disturbed, his Honour found that the second, third and fourth elements of the tort were not established because: (i) the statement was not made to a third party; it was made to Ms Greenfield, an employee of Charterhouse, and the appellant, (ii) the statement could not be characterised as malicious, notwithstanding its flippant tone, and (iii) there was no evidence that the email sent by Mr Harvey occasioned any damage to the professional practice of the appellant, given that the email was sent many months after Dr Padhi made his complaint to the HCCC and it was that complaint that led the appellant being unable to practice as a psychiatrist: at [146]-[148].

Appellant’s submissions

230. The appeal grounds did not identify any specific error in his Honour’s findings rejecting the injurious falsehood claim against Charterhouse. In writing, the appellant submitted that (1) the primary judge erred by denying the appellant procedural fairness by refusing to allow Mr Pereira to be called as a witness; and (2) the Harvey statement published to the appellant and Charterhouse was gratuitously malicious and that the primary judge erred in finding to the contrary.

Decision

Pereira statement

231. Contrary to the appellant’s submissions, there was no basis for a Jones v Dunkel inference from the failure of Charterhouse to call Mr Pereira as a witness. It was not until closing submissions that the appellant first articulated the unpleaded claim based on the Pereira statement: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

232. The Pereira statement (“at this stage, Charterhouse shouldn’t arrange further placements for Dr Chandrasekaran”) was not a statement concerning the appellant’s goods or business, nor indeed a false statement; it was a statement about what Charterhouse intended to do. That instruction reflected a business decision of Charterhouse, consistent with the terms of the recruitment agreement, which provided that Charterhouse was entitled to refuse to place the appellant at all, for any reason.

233. It is said that because Mr Harvey subsequently left the employ of Charterhouse, the Pereira statement was made to a third party, being Mr Harvey’s new employer. That argument is misconceived. Mr Pereira was Mr Harvey’s supervisor, and he was communicating an instruction to Mr Harvey as an employee of Charterhouse. It makes no difference that an employee of Charterhouse who receives the communication, subsequently leaves Charterhouse and becomes an employee of another business. Information received by a former employee of Charterhouse is not a statement made by Charterhouse to the new employer of its former employer. There was no error in finding that the Pereira statement was not a communication to a third party.

234. Nor was there any no error in finding that the appellant had not demonstrated that the Pereira statement was made with malice. It can be inferred that the statement was made to protect Charterhouse’s business not with an intent to injure the appellant’s business.

Harvey statement

235. The Harvey statement was not made to a third party, nor was the statement malicious in the sense of involving some indirect, dishonest or improper motive or an intent to injure without just cause or excuse. The fact that a person uses “language that is strong” or conducts themselves in a way that is “upsetting” to the plaintiff does not, of itself, evidence malice: Aldi Foods Pty Ltd v Transport Workers Union of Australia [2017] FCA 1004 at [22] (Perram J).

236. As to the pleaded damage of which the appellant complained (see [194] above) (i) there was no evidence that the Harvey statement was communicated to anyone outside Charterhouse, (ii) Charterhouse’s decision not to place the appellant in future roles, was made in January 2018, and (iii) the Harvey statement had no effect on the earlier decision by Charterhouse; the decision not to place the appellant in further roles, having already been made by Charterhouse by the time the 2 July email was sent.

237. There was no error in his Honour’s contingent finding on causation, that even if there had been a falsehood, causation could not be established given that the Harvey statement was contained in the 2 July 2018 email, which was sent many months after Dr Padhi had notified his concerns to the AHPRA on 9 February 2018. Further, there was no evidence of actual damage beyond, as his Honour noted, “mere assertion”.

Other matters

Inadequate reasons (ground 6)

238. Ground 6 contends that the primary judge provided inadequate reasons. It is said that this omission is “admitted” by his Honour given the reference at [37]-[38] to an “orthodox” approach to resolving the issues, whereas the stated approach by his Honour was to discuss each cause of action separately, making relevant findings of fact, and applying those findings of fact cumulatively to the relevant causes of action against each defendant as applicable.

239. The obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties. There was no error in his Honour’s approach, especially given the substantial factual overlap in some of the allegations against the Health District and Charterhouse. On a fair reading of the judgment, his Honour identified the essential contentions on which each claim was based, addressed the parties’ competing submissions, considered the conflicting evidence, including the appellant’s challenge to Dr Padhi’s credibility, and made findings of fact and conclusions with respect to the relevant elements of each cause of action which could not be established, by reference to the available evidence or as a matter of law.

240. This is not a case where the reasons for judgment are inadequate because it is not possible to discern from them the reasoning upon which the decision is based and thus justice is not seen to have been done: Li v Attorney-General for New South Wales (2019) 99 NSWLR 630 at [116] (Brereton JA). Ground 6 should be rejected.

Damages (ground 9)

241. Ground 9 contends that the primary judge failed to calculate the appellant’s damages. This ground was not addressed in the appellant’s written submissions but was briefly mentioned in oral argument. This criticism of his Honour’s judgment is misplaced for several reasons.

242. First, insofar as the appellant failed on all causes of action at trial, the question of damages did not strictly arise.

243. Second, notwithstanding his primary conclusions, his Honour did make some contingent observations about loss and damage: see, for example, at [152]-[155] set out of [122] above.

244. Third and importantly, Exhibit H, the appellant’s document on quantum, was in the form of a submission only. As his Honour correctly observed at [155], the bare assertions in that document did not support a finding of damages given the lack of evidence supporting the claim made by the appellant at trial.

Delay in giving judgment

245. Ground 3 (par 1.55) contends that the judgment is plainly unreasonable or unjust because it was delivered eleven months after the trial.

246. In assessing the significance of the delay, it is appropriate to take into account the extent to which any delay was occasioned by the appellant’s application to re-open her case. Here, this application was filed in December 2020 and resolved in March 2021.

247. It is not in dispute that the trial judge’s advantage in seeing the witness give evidence weakens with time, and specific reasons for accepting or rejecting evidence of certain witnesses should be provided where publication of a judgment is significantly delayed: Monie v Commonwealth (2005) 63 NSWLR 729 at [43] (Hunt AJA); [2005] NSWCA 25. Nevertheless, his Honour provided adequate reasons for his acceptance of Dr Padhi’s evidence (at [42]-[58]). Thus, acceptance of Dr Padhi’s evidence, where it conflicted with that of the appellant, was not devoid of rational explanation.

248. To the extent that the appellant complains that Dr Padhi’s evidence ought to have been characterised as lacking in credibility due to “slips” under cross-examination or alleged inconsistencies in his evidence, there is no substance in this complaint for the reasons given at [177]-[178] above.

Jones v Dunkel inferences

249. Although not a ground of appeal, in writing the appellant complained that the primary judge erred in failing to draw Jones v Dunkel inferences against the Health District on the basis that several persons were not called as witnesses in its case: the mothers of Patient 1 and Patient 2; A/Prof Kotze, Mr O’Connor, Dr Gilbert and Dr Butler and other registrars who contributed to statements about the incidents the subject of the AIMS reports.

250. This submission overlooked that the Health District called four witnesses who had the primary dealings with the appellant during the period of her placement, namely, Dr Mahmood, Dr Padhi, Ms Joseph and Ms Yoo. At the relevant time, Dr Mahmood was a registrar at Redbank House whose responsibility included the assessment and management of adolescents admitted to Redbank House under the supervision of Dr Emma Gilbert, her supervisor at the time. Dr Mahmood gave evidence of the incidents involving Patient 1 and Patient 2 and the complaints made by their respective mothers. Ms Yoo was the acting nurse unit manager of Redbank House and Ms Joseph was the then nurse manager. They also gave evidence concerning the incidents with Patient 1 and Patient 2 and the complaints by their respective mothers.

251. The submission also ignored that there is limit in the use and reliance of the Jones v Dunkel “rule”. Relevantly, no inference will be drawn merely because corroborative or cumulative witnesses are not called: Manly Council v Byrne [2004] NSWCA 123 at [60]-[67] (Campbell JA). As Kirk JA recently said in Ling v Pang [2023] NSWCA 112 at [28]:

… Not calling yet further witnesses to establish some point already established by evidence does not suggest that the party in question fears what they might say; it is rather just a matter of not wasting the time and resources of the parties and the court.

252. Given the issues at trial and the extensive affidavit and documentary evidence adduced by the Health District, it has not been demonstrated that the other witnesses to whom the appellant referred could have relevantly added to the evidence adduced by the Health District.

253. The appellant also complained that Charterhouse failed to call Mr Pereira and Ms Greenfield to give evidence. As indicated, there is no basis for drawing a Jones v Dunkel inference in relation to Mr Pereira given that the claim in relation to the Pereira statement was first made in closing submissions by the appellant.

254. As to Ms Greenfield, that she received the 2 July 2018 email containing the Harvey statement did not require corroborative evidence from her. Further, insofar as the appellant’s submissions contain conjecture as to the extent of circulation into the medical profession of the Harvey statement, there is no basis for drawing a Jones v Dunkel inference that Charterhouse feared that, if called, Ms Greenfield would have exposed facts unfavourable to Charterhouse: Jones v Dunkel at 320-1 (Windeyer J).

Defamation claim against Charterhouse

255. The appellant complained in writing that the Harvey statement was grossly defamatory of her. Charterhouse objected to the raising of this claim on appeal given that the pleaded claim for defamation was not the subject of any written or oral closing submissions at trial, and counsel for the appellant did not suggest otherwise in response to counsel for Charterhouse expressly indicating in closing submissions that she was proceeding on the basis that the defamation claim had been abandoned.

256. It is no answer for the appellant to assert, as she did in this Court, that the defamation claim was abandoned by her trial counsel contrary to her instructions. The adversarial system of litigation operates on the basis that a party is generally bound by the conduct of counsel, and that counsel has a wide discretion as to the manner in which proceedings are conducted: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] (Gleeson CJ, Heydon and Crennan JJ).

257. It should be inferred that in conducting the case on behalf of the appellant, trial counsel was exercising his wide and independent discretion in not pressing the defamation claim. For completeness, it is noted that there is no ground of appeal alleging a miscarriage of justice on the ground of incompetent representation by trial counsel: R v Birks (1990) 19 NSWLR 677.

258. The appellant should not be permitted to advance a new claim on appeal which was abandoned at trial: Water Board v Moustakas (1998) 180 CLR 491; [1998] HCA 12 at 497; University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 at 71.

Application to adduce further evidence on appeal (ground 7)

259. The appellant sought leave to adduce further evidence on appeal by notice of motion filed 28 March 2023. It is of assistance first to explain the lengthy procedural history of this application.

260. On 9 May 2023, Meagher JA stood over this application made by notice of motion filed 28 March 2023 to the hearing of the appeal. His Honour otherwise dismissed an application by the appellant for leave to issue subpoenas and set aside notices to produce addressed to Dr Padhi: Chandrasekaran v Western Sydney Local Health District [2023] NSWSC 106.

261. The appellant issued new notices to produce and sought leave to issue subpoenas. On 11 September 2023, Meagher JA set aside the notices to produce served on the Health District and Charterhouse and refused leave to issue subpoenas to the Health District and Charterhouse. His Honour also ordered that the appellant be restrained from serving any further notice to produce addressed to the Health District or Charterhouse with prior leave of the Court: Chandrasekaran v Western Sydney Local Health District [2023] NSWCA 219.

262. By a further notice of motion filed 23 September 2023, the appellant sought leave to issue differently framed notices to produce or subpoenas to the Health District and Charterhouse. On 25 October 2023, White JA dismissed that application: Chandrasekaran v Western Sydney Local Health District & Anor (No 4) [2023] NSWCA 253. His Honour said at [29]:

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.

263. On 26 October 2023, the appellant filed an affidavit relating to the “new” evidence which, together with annexures, was more than 280 pages. The Health District and Charterhouse opposed the grant of leave to adduce further evidence on appeal. The appellant also relied upon her further affidavit of 30 October 2023 which annexed further documents sought to be adduced on appeal.

Informal application for leave to issue notices to produce and subpoenas

264. Annexure SC-10 to the appellant’s 26 October 2023 affidavit was a copy of the appellant’s affidavit of 23 September 2023 containing notices to produce and subpoenas to the Health District and Charterhouse in the form of annexures SC1 to SC4. In oral argument on the appeal, the appellant sought leave to issue notices to produce and subpoenas in the form of SC1 to SC4. Contrary to the appellant’s submission, the proposed notices to produce and subpoenas in the form of annexures SC1 to SC4 were in exactly the same terms as those which White JA had refused leave to issue on 25 October 2023, when dismissing the appellant’s notice of motion filed 25 September 2023.

265. As White JA observed at [32], 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 on the earlier application. Here, the position is even stronger. The appellant seeks the same relief relying on the same materials as were before White JA. This is an abuse of process. The informal application for leave to issue further notices to produce and subpoenas should be refused.

The further evidence

266. The items or categories of evidence which the appellant sought to adduce on appeal comprised:

1. IT reports of Mr New dated 29 March 2020, 15 February 2021, 11 May 2021 and 4 April 2023;

2. the reasons for decision of the Medical Council dated 24 October 2018;

3. an affidavit of the appellant’s solicitor, Mr Peter McKell, of 15 July 2021 filed in proceedings in the Common Law Division brought by the appellant against the Commonwealth of Australia and Dr Bruce Boman;

4. annexures to the appellant’s affidavit of 19 February 2021 which was relied upon in support of the re-opening application in March 2021, relevantly: (a) SC3 – internet searches relating to Blue Coat Inc dated February 2021 and L3 Technologies dated 29 July 2020, (b) SC4 – newspaper article from the Canberra Times dated 4 January 2021 headed “The Australian Signals Directorate offers a ‘licence to hack’”, and (c) SC5 – an undated post on expedia.com relation to a loft apartment in Balmain which the appellant said was taken from the appellant’s site on Airbnb;

5. emails from the appellant to the Health District and Charterhouse between 2020 and 2023 and “tracing” reports which the appellant said revealed the opening and forwarding of such emails using the same IP address “as those seen to be hacking [the appellant’s] accounts” which were opened on the internet service provider of Cloudfare.net;

6. a collection of other documents from the internet said to be evidence of hacking or attempts of hacking of the appellant’s digital communications.

267. The appellant says in her 26 October 2023 affidavit that the further evidence is fresh and was not available at the trial which concluded on 9 July 2020, although it is acknowledged that some of the evidence was brought to the attention of the Court on the re-opening application in March 2021. It is said that the further evidence is:

1. credible and of the highest digital standard relying on software (for tracing of emails) used by law enforcement internationally and is incontrovertible and uncontested by the respondents;

2. relevant to the appellant’s claims against the Health District that the breaches of confidence (by Dr Padhi) “were made possible by third persons hacking my online email accounts”; and

3. relevant to the appellant’s claims against Charterhouse with respect to the defamation and injurious falsehood claims, relevantly, that email accounts which the appellant used to communicate with Mr Harvey and Mr Pereira have been “accessed by and published to the third persons hacking my accounts”.

268. In oral argument the appellant said that an inference should be drawn that “the Health District is in communication with the same third persons that are hacking my accounts and feeding information to others, such as Dr Padhi and the Medical Council, and the Medical Council is in communication with the same third party”. When asked by the Court “[t]o what end?” the appellant responded “to destroy my life”.

268. The Court indicated that it would reserve its decision on the application to adduce further evidence on appeal and give its reasons in this judgment. Argument on appeal proceeded on the alternative assumptions that the further evidence was or was not admitted on appeal.

Relevant principles – further evidence on appeal

270. Under the Supreme Court Act 1970 (NSW), s 75A(7), the Court may receive further evidence on appeal. However, after a hearing on the merits the court is to do so only on special grounds: s 75A(8), other than where it is evidence concerning matters occurring after the trial: s 75A(9).

271. The applicable principles are well-established. Although it is not possible to formulate a universal test, in general, special grounds calls for three conditions to be satisfied: (1) the evidence could not have been obtained by reasonable diligence for use at the trial; (2) the evidence is credible; and (3) the evidence is such that there is a high degree of probability that there would be a different result: Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) at 160 (Clarke JA); Harrison v Schipp (2002) 54 NSWLR 612 at 642; [2002] NSWCA 78 at [195] (Giles JA): Tjiong v Tjiong [2012] NSWCA 201 at [166].

272. The three requirements or conditions referred to in Akins are “not exhaustive”: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [14]. As Campbell JA explained in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [136], the power to receive further evidence on appeal should be approached on the basis that the three Akins tests are the ones usually applied, although there can be circumstances in which the balancing of the demands of justice and public interest of bringing suits to final end, come down on the side of allowing a particular item of further evidence to be received, notwithstanding that it does not comply with the Akins tests. See also the discussion by Bell P (Bathurst CJ and Basten JA agreeing) in Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 at [174].

Decision

273. As to the items in (1) above, the March 2020 report was available at the time of the trial and the appellant’s attempt to tender this report on Day 8 was rejected: see [57] above. No error has been demonstrated in relation to that evidentiary ruling. The March 2021 report was the subject of the appellant’s unsuccessful application to re-open her case at trial. Again, no error has been demonstrated in relation to the refusal of the re-opening application.

274. The appellant cannot circumvent such evidentiary rulings and interlocutory decisions by seeking leave to adduce such material as further evidence on appeal. Nor can the appellant achieve the same result by seeking to adduce as “new” evidence later reports of Mr New in May 2021 (in separate proceedings) and April 2023 as further evidence on appeal.

275. There are other difficulties in receiving these reports. First, none of the reports is in admissible form as expert evidence because Mr New has failed to comply with the expert witness code of conduct: UCPR, r 31.23. Second, given the limited basis on which the appellant’s counsel tendered the 2016 report at trial `as being relevant to the appellant’s belief at the time of her conversations with Dr Padhi in December 2017 and January 2018, the later reports of Mr New do not relevantly supplement Mr New’s 2016 report; the later reports concern matters brought to the appellant’s attention well after the relevant conversations with Dr Padhi.

276. As to item (2) above, the decision of the Medical Tribunal was in the appellant’s possession and was readily available for use at the trial. The appellant is bound by the forensic choices made by her counsel at trial not to seek to tender this document.

277. As to item (3) above, the appellant acknowledged in oral argument that she was aware in 2017 of Mr McKell’s conversation with an unidentified man on the ferry, known only as Ray, who worked in debt collection at Google. The evidence of Mr McKell, if sought to be adduced at trial in the court below, should have been rejected as hearsay; it is not evidence of the truth of the contents of what “Ray” told Mr McKell. Further, such evidence should not be admitted as it is otherwise unfairly prejudicial because the respondents cannot test that evidence by cross-examination of any witness: Evidence Act, s 135. Even if the evidence was admitted on a limited basis as evidence of the fact that something was said to Mr McKell by a man known only as “Ray”, and not the truth of what was said, there is not a high degree of probability that there would be a different result.

278. As to item (4) above, accepting that the articles in SC3 and SC4 published by “Channel Futures”, “Daily Intelligence” and the “Canberra Times” were not available at the time of the trial concluded on 9 July 2020, none of these articles would have been admissible at trial as to the truth of their contents. Nor could they have affected the outcome of the trial. The articles do not provide any arguable basis for an inference that Dr Padhi received any confidential information of the appellant. Nor is the copy of a search page on Expedia.com persuasive of any matter in issue at the trial.

279. As to items (5) and (6) above, these documents concern matters occurring after the trial, and thus it is not necessary for the appellant to demonstrate special grounds to adduce these documents.

280. The documents in item (5), being emails from the appellant to the Health District and Charterhouse between 2020 and 2023 and “tracing” reports are not relevant to any matter in issue at trial. Further, the appellant is not qualified as an expert to explain the documents such as IP logs and read notification reports of tracing searches. The documents in item (6) which are said to be evidence of hacking or attempts of hacking of the appellant’s digital communications, concern matters allegedly occurring after the trial of which the appellant could not have been aware in December 2017/January 2018.

281. None of the documents in items (5) or (6) is such that there is a high degree of probability that there would have been a different result if admitted into evidence at trial.

282. The application to adduce further evidence on appeal should be refused.

Costs

283. Costs are in the discretion of the Court: Civil Procedure Act 2005 (NSW), s 98(1). The default rule in UCPR, r 42.1 is that costs follow the event, unless the Court considers some other order should be made as to the whole or in part of the costs. Generally, the “event”, as referred to in r 42.1, refers to the event of a claim or counter-claim, as the case may be. It may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15], referring to Windsurfing International Inc v Petit [1987] AIPC 90-441 at 37.861-37.862 (Waddell J).

284. The appellant has failed against Charterhouse and there is no reason why costs should not follow the event.

285. The appellant has succeeded against the Health District on a single issue – breach of contract – however, she is only entitled to nominal damages of $100. Although the appellant and the Health District have not had an opportunity to consider the cost consequences of this outcome, I will briefly indicate my reasons for the costs order I propose.

286. The question ultimately is whether a party who is awarded nominal damages is to be regarded as the successful party; each case turns on its own facts and circumstances. In State of New South Wales v Stevens at [22], McColl JA (Ward JA and Sackville AJA agreeing) referred to authorities for the propositions that (i) in an action for breach of contract, if a plaintiff establishes liability, and obtains an order for payment of nominal damages, that plaintiff is usually not to be regarded as the successful party in the action, and (ii) costs should be awarded against a plaintiff who has obtained an order for nominal damages because that award was not the event at which the plaintiff was aiming.

287. Here, the appellant sought to recover substantial damages for breach of contract; she has failed in that regard and is only entitled to nominal damages. That very limited success on appeal turned on the proper construction of the locum agreement, which occupied very little time on the appeal. The practical result of the appeal against the Health District is that the appeal was wholly unsuccessful, given that nominal damages are not compensatory damages. Nor can the appellant be regarded as the successful party on appeal as nominal damages is not the event at which the appellant was aiming. The appropriate order is that the appellant pay the Health District’s costs in this Court.

288. However, as the appellant and the Health District have not had an opportunity to address on costs, the orders I propose will allow the appellant to seek a different costs order in this Court upon written application within 14 days of the date of the Court’s judgment.

Conclusion

289. I propose the following orders:

1. Appeal allowed in part.

2. Set aside order (1) made in the court below on 29 July 2021.

3. In lieu of order (1) below, direct entry of judgment for the appellant against the first respondent in the sum of $100.

4. Otherwise dismiss the appeal.

5. Paragraph 1 of notice of motion filed 28 March 2023 be dismissed with costs.

6. The appellant’s oral application for leave to issue further notices to produce and subpoenas is refused.

7. Subject to order (9) below, the appellant to pay the costs of the first respondent in this Court.

8. The appellant to pay the costs of the second respondent in this Court.

9. In the event that the appellant seeks a different costs order to that in (7) above, direct the appellant to file and serve written submissions within 14 days of the date of these orders, such submissions not to exceed three pages, the first respondent to file and serve within 10 days thereafter written submissions in response, not to exceed three pages. Note that any such application will be determined on the papers.

290. LEEMING JA: I agree with Gleeson JA.

291. ADAMSON JA: I agree with Gleeson JA.

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Decision last updated: 01 December 2023