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

[2019] NSWSC 327

Supreme Court

New South Wales

Medium Neutral Citation:

Chandrasekaran v Western Sydney Local Health District t/as Westmead Hospital [2019] NSWSC 327

Hearing dates:

21 March 2019

Date of orders:

27 March 2019

Decision date:

27 March 2019

Jurisdiction:

Common Law

Before:

Wright J

Decision:

1. The amended notice of motion filed on 21 March 2019 is dismissed.
2. The costs of this motion are reserved.

Catchwords:

CIVIL PROCEDURE – subpoenas – review of decision of the Deputy Registrar to refuse leave to issue subpoenas – application for leave to issue two further subpoenas – interlocutory injunction sought

Legislation Cited:

Australian Consumer Law (ACL)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Tomko v Palasty (No. 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Procedural and other rulings

Parties:

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

Representation:

Self-represented (Plaintiff)

 

Counsel:
Mr P Strickland (First Defendant)
Ms K Petch (Second Defendant)

  Solicitors:
Crown Solicitor’s Office (First Defendant)
Norton Rose Fulbright (Second Defendant)

File Number(s):

2018/177874-1

Judgment

1. It is important to note at the outset that the Court is only dealing with the plaintiff’s amended notice of motion filed in Court on 21 March 2019. In that document, the plaintiff moved the Court for the following relief:

“1 Review of Duty Registrar’s decision for refusal to grant leave to issue subpoenas

2 Two further subpoena requests made in the context of both Defendants refusing to respond to Notices to Produce

3 Interlocutory injunction against defendants (and potential defendants) to file further evidence in any form until trial.”

2. As the relief sought concerns, in part, the issue of subpoenas it is useful to identify what matters are in issue in these proceedings. These are generally to be discerned from the pleadings.

The further amended statement of claim

3. In the further amended statement of claim filed 15 November 2018 (FASC), the plaintiff claims damages including aggravated damages, interest and costs. The FASC pleaded a number of causes of action, which can be summarised, adequately for present purposes, as follows:

1. unlawful termination of services agreement by the first defendant: on 15 January 2018, the first defendant unlawfully terminated the services agreement between the plaintiff and the first defendant, under which the plaintiff was to provide services as a Visiting Medical Officer psychiatrist to the first defendant: FASC pars 1-4, 6-13;

2. misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL) by the second defendant: on about 11 December 2017, the second defendant, by its servants or agents, Mr Harvey and others unknown, engaged in conduct that was misleading and deceptive or likely to mislead or deceive by representing that the second defendant had arranged for the plaintiff to provide locum services at Cumberland Hospital in adult psychiatric services whereas the location was at Redbank House, Westmead Hospital in child and adolescent services. The plaintiff suffered loss and damage, as a result of this conduct, which was alleged to include harassment by Dr Padhi, Director of Clinical Services at Redbank House, and a retaliatory complaint concerning the plaintiff to the Australian Health Practitioner Regulation Agency and the NSW Health Care Complaints Commission by Dr Padhi and unnamed others. The plaintiff also claimed aggravated damages, as a result of, among other things, having to work with Dr Padhi: FASC pars 15-17;

3. misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL) by the second defendant: about 11 December 2017, the second defendant, by its servants or agents, Mr Harvey and others unknown, engaged in conduct that was misleading and deceptive or likely to mislead or deceive by misrepresenting the plaintiff’s rates of pay and start and finish dates. As a result of this conduct the plaintiff suffered loss and damage: FASC pars 18-19;

4. breach of contract by the second defendant: in breach of an express term of the locum contract between the second defendant and the plaintiff dated 11 December 2017, the plaintiff was required to provide services at Redbank House, Westmead Hospital and not Cumberland Hospital. As a result of this breach of contract the plaintiff suffered loss and damage: FASC pars 3, 5, 20-22;

5. breach of contract by the second defendant: in breach of an express term of the locum contract between the second defendant and the plaintiff dated 11 December 2017, the second defendant failed to use its every available resource to place the plaintiff with a client in that it failed to check the competence of the hospital client and the appropriateness of the locum position for the plaintiff. As a result of this breach of contract the plaintiff suffered loss and damage: FASC pars 23-25;

6. breach of contract by the second defendant: in breach of an express term of the locum contract between the second defendant and the plaintiff dated 11 December 2017, the second defendant failed to keep information, supplied in relation to the plaintiff, confidential at all times. As a result of this breach of contract the plaintiff suffered loss and damage: FASC pars 26-28;

7. injurious falsehood by the second defendant: Mr Harvey, as servant or agent of the second defendant, made a false statement concerning the plaintiff’s professional reputation and business, which was published to another person and was made “mala fides and with lack of good faith”, causing loss to the plaintiff. The conduct was particularised as sending an email to Ms Greenfield, Mr Periera and another unknown person, representing that the plaintiff was the “cra(z)y Google car lady that got fired from WSLHD”: FASC par 29;

8. injurious falsehood or defamation by the second defendant: by an email of 2 July 2018 to the plaintiff, Ms Greenfield and Mr Periera published words referring to the plaintiff as the “cra(z)y Google car lady that got fired from WSLHD”. The words “Google” and “car” were intended to be derogatory and were falsely and maliciously published. As a result of that conduct the plaintiff suffered loss and damage: FASC 30-34.

4. In addition, the FASC contained par 14, which stated:

“The First Defendant encouraged its staff to manufacture complaints regarding the Plaintiff and in her provision of the services, on and after 15th January 2018. Dr Ashwin Padhi, Director of Clinical Services, employed by the First Defendant, advised the Plaintiff of his past treatment with Psychoanalyst Mr Navaratnem, in London as well as making a number of false claims, one of which included that he was a qualified psychoanalyst on the 12th of January 2018. The Plaintiff had met Mr Navaratnem at a conference with whom she had exchanged details and had had a professional discussion with approximately six weeks prior in London. The Plaintiff had made a passing comment that she had had difficulties with unlawful access to her online accounts, that her internet traffic was flagged, and that she was a victim of identity fraud following Dr Padhi’s claims on the 12th January 2018, which was the working day during the period prior to the termination of her employment.”

5. This description in par 14 was not expressly linked to any of the causes of action identified in other paragraphs of the FASC.

Summary of defences

6. The first defendant’s defence to the FASC, filed on 30 November 2018, does not plead to the allegations in pars 15 and 17-34, as they contain no allegations against the first defendant.

7. As to the cause of action of unlawful termination of the services agreement by the first defendant, the first defendant admitted pars 1, 2, 4-6 and 8-10 of the FASC. In addition and in summary, the first defendant:

1. in par 7 of its defence, identified what it alleged was the relevant contract signed on 11 December 2017 and what was the relevant “Model Sessional Services Contract” signed by the first defendant on 2 February 2018 and by the plaintiff on 28 March 2018;

2. in par 11 of its defence, identified what it alleged were the actual average weekly earnings of the plaintiff;

3. in par 12 of its defence, admitted that it terminated the services of the plaintiff on 15 January 2018 without notice, and set out the bases on which it alleged that it was entitled to do so, and which led to the termination not being unlawful;

4. in par 13 of its defence, denied that the plaintiff lost the opportunity to provide services and to earn remuneration for the balance of the term of the plaintiff’s contract with the first defendant because the first defendant, even if the termination was unlawful, would have been entitled to suspend the services of the plaintiff because of complaints and concerns leading to the view that the plaintiff posed risks to herself and others;

5. in par 16 of its defence, denied or did not admit the particulars of loss and damage except that it admitted that Dr Padhi on about 9 February 2018 made a complaint to AHPRA in respect of the conduct of the plaintiff.

8. As to the allegations in par 14 of the FASC, in par 14 of its defence, the first defendant admitted that Dr Padhi, an employee of the first defendant, advised the plaintiff of his past treatment by Mr Navaratnem but denied that it encouraged staff to manufacture complaints regarding the plaintiff and her provision of services and that Dr Padhi made false claims to the plaintiff.

9. The second defendant’s defence can be summarised adequately for present purposes as responding to the allegations against the second defendant by:

1. identifying what the second defendant contends are the relevant contractual arrangements between the plaintiff and the defendants;

2. admitting that the plaintiff’s placement with the first defendant was terminated on or about 15 January 2018;

3. denying that the second defendant engaged in misleading or deceptive conduct on either basis or that she suffered consequent loss and damage, as alleged in pars 15 to 19 of the FASC;

4. denying that the second defendant breached any terms of the placement agreement between the plaintiff and the second defendant or that she suffered any consequent loss and damage, as alleged in pars 20 to 28 of the FASC;

5. admitting that Mr Harvey sent an email on 2 July 2018, which contained the words “cray google car lady that got fired from WSLHD”, but otherwise denying that this amounts to injurious falsehood or defamation or caused any loss and damage, as alleged in pars 29 to 34 of the FASC, and taking objections to the form and content of this part of the FASC.

The reply

10. The plaintiff filed a reply on 17 December 2018, which takes issue with many of the matters in the defences but contains much that is in the form of submissions rather than pleadings and has attached to it evidence to support the plaintiff’s submissions. It suffices to say that the plaintiff joined issue with many of the allegations in the defences.

Some relevant interlocutory steps

11. There have been a number of interlocutory steps and much correspondence already in these proceedings. The interlocutory steps which have some relevance to the present notice of motion include:

1. On 11 October 2018, the plaintiff filed a notice of motion for leave to issue subpoenas. On 17 October 2018, this was refused by the Registrar.

2. On 21 November 2018, procedural directions were made including a direction for the defendants to file and serve their evidence by 15 February 2019.

3. On 16 January 2019, the procedural directions made on 21 November 2018 were varied and the direction for the filing and serving of the defendants’ evidence was vacated. No direction for the defendants to file and serve evidence has since been made.

4. On 24 January 2019, the plaintiff sent notices to produce to the solicitors for the first and second defendants. One of the notices to produce was addressed to Dr Padhi. It was returnable on 7 February 2019. The first defendant’s solicitor indicated in its response of 8 February 2019 that a notice to produce could not be served on Dr Padhi, who was not a party, but the notice to produce would be treated as addressed to the first defendant and documents would be produced by 15 February 2019.

5. On 1 February 2019, the plaintiff sent to the solicitors for the second defendant a revised notice to produce.

6. On 8 February 2019, the plaintiff sent to the solicitors for the first defendant a revised notice to produce addressed to the first defendant, returnable on 21 February 2019. The first defendant’ solicitor indicated, in its response of 8 February 2019, that documents would be produced by 21 February 2019.

7. On 11 February 2018, the plaintiff sent a third notice to produce to the second defendant’s solicitors seeking the production of the mobile phone of Daniel Harvey, who is an employee of the second defendant. The second defendant has indicated that it intends to contend, at an appropriate time, that one or more of the three notices served on it should be set aside.

8. On 12 February 2019, the solicitors for the first defendant wrote to the plaintiff notifying her that the first defendant would be seeking the appointment of a tutor due to her suffering from schizophrenia. Experts’ reports were enclosed. One of the experts was Dr Wilcox, a psychiatrist, who also provided an affidavit.

9. On 15 February 2019, the first defendant filed a notice of motion seeking the appointment of a tutor for the plaintiff.

10. On 18 February 2019, the Registrar ordered, among other things, that compliance with the notices to produce sent to the defendants be stood over to 29 April 2019. This was in the context of the Registrar determining that the motion for the appointment of a tutor should be heard first.

11. On 19 February 2019, the plaintiff filed a notice of motion seeking:

“1 Interim injunction and interlocutory injunctions or other Court order against both Defendants and any prospective defendants to issue any document or thing as evidence without leave of the court.

2 Application to strike out the material provided by the First Defendant which they intended to use as evidence as per their notice of motion 11/2/19 written by Dr Rosalie Wilcox, before 15/4/19.

3 Leave to issue subpoenas to 3rd parties including special leave in preparation for hearing 15/4/19.

4 Leave to add the Medical Council of NSW as a third party.

5 The motion for contempt in the face of the Court by prevaricating and refusing to provide evidence by both defendants be heard on 15/4/19 and ideally first before the First Defendant’s motion on 15/4/19 in the interests of time, costs and justice.”

Some aspects of this motion have been subsumed in the amended notice of motion with which I am dealing. In addition, it appears that, at the hearing before me, this motion was referred to by the plaintiff as the “contempt motion”, as a result of prayer 5. This aspect of the motion appears, however, misconceived as the defendants have not failed to provide evidence in accordance with any directions of the Court. As noted above, the only direction in that regard was vacated by consent on 16 January 2019.

12. On 25 February 2019, the plaintiff filed an application for leave to issue five subpoenas, to Mr Navaratnem, Dr Wilcox, Dr Hyde, Dr Gintli and Dr Zhang.

13. On 1 March 2019, Deputy Registrar Hedge refused leave and provided short reasons for doing so.

14. On 8 March 2019, the plaintiff’s motion filed on 19 February 2019 was also stood over to 15 April 2019.

15. On 8 March 2019, after the directions hearing before the Registrar, the plaintiff sent an email enclosing a notice of motion seeking to challenge the Registrar’s decision to refuse leave to issue the subpoenas. On 11 March 2019, a proposed amended notice of motion seeking leave to review the Registrar’s refusal to issue subpoenas, leave to issue two further subpoenas “in the context of both Defendants refusing to respond to Notices to Produce” and an interlocutory injunction against the defendants preventing them from filing evidence until a trial date was provided to the defendants. This apparently was the form of the amended notice of motion filed in court at the hearing of the motion on 21 March 2019.

16. On 13 March 2019, in response to a request from the first defendant’s solicitor, the plaintiff provided copies of a number of subpoenas, which were explained to be the subpoenas the subject of prayers 1 and 2 in the amended notice of motion. Two further proposed subpoenas, with certain errors corrected, were provided on 17 March 2019 by the plaintiff. Apart from the two new subpoenas, which the plaintiff sought leave to issue under prayer 2, the subpoenas provided in March 2019 were not exactly the same as the subpoenas which the plaintiff had sought leave to file in February 2019. One difference was that, while four of the February subpoenas (except the one to Dr Gintli) were headed “Subpoena to attend to give evidence and to produce with Subpoena Notice and Declaration”, the versions given in March 2019 were split into two subpoenas, one to attend and one to produce. Since the amended notice of motion sought a review of the Deputy Registrar’s decision, I shall refer to the form of proposed subpoena before the Deputy Registrar. Nonetheless, essentially the same issues arise whichever versions are considered.

17. On 15 March 2019, the first defendant’s solicitor provided to the plaintiff exhibit RW-1 to Dr Wilcox’s affidavit, which contained all the material with which Dr Wilcox was briefed in order to prepare her report for the motion for the appointment of a tutor.

18. At the commencement of the hearing before me on 21 March 2019, consent orders were made whereby the motion for the appointment of a tutor was withdrawn, the hearing of that motion on 15 April 2019 was vacated, and the proceedings were listed before the Registrar on the following Friday, 29 March 2019. It was also noted that the evidence of Dr Wilcox would, as a result of the withdrawal of the motion for a tutor, no longer be relied upon by the first defendant.

12. As already noted, the motion before me sought the following relief:

“1 Review of Duty Registrar’s decision for refusal to grant leave to issue subpoenas

2 Two further subpoena requests made in the context of both Defendants refusing to respond to Notices to Produce

3 Interlocutory injunction against defendants (and potential defendants) to file further evidence in any form until trial.”

13. I shall deal with each prayer for relief in turn.

Prayer 1 – Review of Registrar’s refusal of leave to issue subpoenas

14. The Deputy Registrar’s decision to refuse leave to issue the subpoenas was made on 1 March 2019. A party may apply under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to have the Court review such a decision. Under r 49.20(2), the notice of motion for review must be filed within 28 days after the material date. In this case, the material date was “the date of the … decision … to be reviewed”, as provided in r 49.20(5). The plaintiff’s relevant notice of motion was apparently filed on 8 March 2019, within the relevant period.

15. The plaintiff’s February application for leave to issue the subpoenas included proposed subpoenas together with several pages of handwritten notes setting out the reasons why the information was being sought. The five proposed subpoenas involved the following:

1. An order to Mr Navaratnem, whose address was stated to be in the United Kingdom, to attend and give evidence at the Supreme Court of New South Wales but no date or time was specified. He was also ordered to produce:

“1 Documentary evidence of seeing Dr Ashwini Padhi as a patient for 5 years 5 times a week, including dates commencing & ending analysis with you

2 All emails, documents, memoranda and any other records whether electronic or hard copy that are or have been in the possession, custody or power of Kannan Navaratnem relating to or referring to the Plaintiff, including publications & distribution of such documents. All emails to be printed with headers & footers.

3 Details of address of Mr Kannan Navaratnem’s rooms prior to the current rooms on Harvist Road 2017 (November) & documentary evidence of this

4 Documentary evidence including passport of travel abroad between 2/11/17 and 30/11/17”.

The handwritten note accompanying this subpoena included, among other things, the following explanation:

“I need this subpoena…to challenge the veracity of the claims made by the 1st defendant which has led to a vexatious complaint that has suspended my medical registration.

…This subpoena will also enable me to show the court the extent to which my communications are compromised, even overseas, as Mr Navaratnem did harass me just as Dr Padhi did, by stating the opposite of the truth throughout my meeting with him…

This is not the first experience of harassment by someone unknown to me. There is sufficient cause to believe that my online communications are compromised so as to facilitate this. I seek this subpoena to prove it.”

2. An order to Dr Rosalie Wilcox, at an address in Edgecliff NSW, to attend and give evidence at the Supreme Court of New South Wales but no date or time was specified. She was also ordered to produce:

“1 letters of instruction form Ms Kira Kless to Rosalie Wilcox regarding or referring to the plaintiff.

2 Emails, documents, memoranda, and any other records whether electronic or hard copy that are or have been in the possession, custody or power of Rosalie Wilcox relating to or referring to the plaintiff, including publications & distribution of such documents.

3 Emails to contain headers & footers on the printed form.

4 Screenshot to prove that the emails provided were in fact received for the date & time provided by the recipient.

5 Phone records, including incoming & outgoing calls, SMS & data messages between (inclusive) 1/1/19 to 11/2/19. All records must indicate the source, destination, date, time and duration of all communications from your telecommunications provider.

5 civil & criminal (forensic) reports created by Dr Rosalie Wilcox for which she received remuneration from a lawyer prior to 1/1/19. Reports to contain name of solicitor/barrister to whom she paid by. Details and other identifying data regarding patients to be redacted.”

The handwritten note accompanying this subpoena included, among many other things, the following explanation:

“I seek the information in this subpoena to prove that the letters created by Dr Wilcox are in retaliation to our Notice of Motion for holding the defendants in contempt.

…

I seek the material as it is likely to contain defamatory content in relation to me which then explains to some extent motivation for providing fabricated reports

…”;

3. An order to Dr Gordon Hyde, at an address in Haymarket NSW, to attend and give evidence at the Supreme Court of New South Wales but no date or time was specified. He was also ordered to produce:

“All emails, documents, memoranda and any other records whether electronic or hard copy that are or have been in the custody, possession, or power of Gordon Hyde relating to or referring to the Plaintiff including publications and distribution of such documents. All email trails to contain headers & footers on the printed version.”

The handwritten note accompanying this subpoena included, among many other things, the following explanation:

“I believe that the harassment is being coordinated and cannot show this without this subpoena.”;

4. An order to Dr Ildiko Gintli, at an address in Haymarket NSW, to attend and give evidence but no place, date or time was specified. She was also ordered to produce:

“1 Records of outgoing and incoming calls and SMS and data messages for mobile [number specified]. All records must indicate source, destination, date, time and duration of all communications from your communications provider For the following dates inclusive:

14/8/17 to 15/8/17

15/8/16 to 15/9/16

2 All emails, documents, memoranda, and any other records whether electronic or hard copy that are or have been in the custody, possession, or power of Ildiko Gintli relating to or referring to the Plaintiff including publications and distribution of such documents. All email trails to contain headers & footers on the printed version.”

The handwritten note accompanying this subpoena included, among other things, the following explanation:

“She is aware of the defamatory material being spread about me but has evaded telling me the details which is deceptive and misleading in conduct. The documents I seek are to identify what the defamatory material is and where it is coming from.”

5. An order to Dr Zhen Zhang, at an address in Haymarket NSW, to attend and give evidence but no place, date or time was specified. He was not required to produce any documents. The handwritten note attached included, among other things, the following:

“He appears to be aware of the persons coordinating the mobbing and harassment and appears to know there is also a lack of police involvement…

It is unethical to hold such information and deny me more information that could assist with ending this activity and establishing how the breach of contract occurred and why and the nature and extent of the defamation.”

16. The Deputy Registrar’s reasons for refusing to grant leave to issue the five subpoenas sought by the plaintiff were in the following terms, identifying the subpoenas by the surname of the person the subject of each:

“1. Navaratem – not satisfied on 3 pages of handwritten material provided of the relevance to the Further Amended SOC – who he is, how connected to the claim, etc. Schedule seeks other than specific documents – too broad. Also it is addressed to a recipient outside Australia- – refer UCPR 11.5 no delegation to registrar (and would not be satisfied on information provided). No leave to issue this subpoena as submitted.

2.   Wilcox – Appears to be an expert witness for the defendant- may be relevant to Notice of Motion for appointment of Tutor but in para 3 asks for all her phone sms etc with no subject – too broad; not clear if seeking that she appear to give evidence at a hearing as well but can be called for cross examination if her affidavit is to be read – no leave to issue this particular subpoena as submitted.

3.   Hyde - - No clear information about who Dr Hyde might be and which paragraphs of the Further Amended SOC that subpoena might be relevant to. On information provided in hard to read handwritten pages, leave not given.

4.   Gintli – On information provided not clear which para of Further Amended SOC this material might relate to; no information about what the mobile number is and why all calls etc required. ON information provided no leave given.

5.   Zhang – Subpoena to give evidence (only?) – no hearing date specified (and no documents sought). Seems plaintiff wants information from this person, but on information and format provided, no leave to issue this subpoena.”

17. In conducting a review of the Deputy Registrar’s decision under r 49.19, I am guided by the comments of the Court of Appeal in Tomko v Palasty (No. 2) (2007) 71 NSWLR 61 at [6] to [9]; [2007] NSWCA 369. The Court is not hearing an appeal and must exercise its own discretion. This discretion extends to a discretion as to whether, and if so how, to intervene. There is an onus on the person seeking to set aside or vary a Registrar’s decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so. In particular, in the case of a decision on practice or procedure such as the present, this will normally require, at least, the demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a Court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

18. In the circumstances, the Deputy Registrar’s reasons are adequate. The matters identified in those reasons are a sufficient basis for refusing leave to issue the subpoenas. The Deputy Registrar makes clear that the decision applies only to the “subpoenas as submitted” and does not preclude a further application in respect of properly drawn subpoenas. The plaintiff did not point to any errors of law or discretionary errors in the Deputy Registrar’s reasons and I do not thing that there are any.

19. Moreover, the proposed subpoenas were defective in ordering attendance without any date or time, or in some cases even a place, being specified.

20. The documents required to be produced under the proposed subpoenas to Mr Navaratnem, Dr Wilcox, Dr Hyde and Dr Gintli did not have any obvious, direct relevance to the matters in issue, as disclosed on the pleadings, or to the subject matter of any relevant extant motions that have some arguable foundation. Further, since the motion for the appointment of a tutor has been withdrawn, Dr Wilcox’s evidence is no longer relevant. Accordingly, it is difficult to discern what legitimate forensic purpose any of those subpoenas would serve.

21. Many of the items in the schedules of documents to be produced fail to specify any time frame in respect of the documents. In some cases where a time frame is specified, it bears no relationship to the conduct and events which are the subject of the FASC. Furthermore, the description of the documents in some of the items in each schedule was too broad. For example and without being exhaustive, the recipient of some of the proposed subpoenas would be required to produce documents “that are or have been in the custody, possession, or power of” the recipient. In addition, the recipient would be required to produce “publications and distribution of such documents”. Recipients of subpoenas, who are liable to punishment for non-compliance, should not be required to attempt to obtain documents that “have been” in their possession but are no longer so. Nor should they be required to attempt to decide what “publications and distribution of such documents” might be.

22. The burden that would be imposed on recipients attempting to comply with the proposed subpoenas requiring production of documents can properly be characterised as oppressive.

23. At one point in oral submissions, the plaintiff stated that the subpoenaed material was sought for the purposes of the “contempt motion and a motion to strike out the defendants’ defences”, and “potentially proving the fabrication” and “prevarication”. As I understand it, the “contempt motion” is listed for hearing on 15 April 2019. The other motion previously listed for that date was the motion for the appointment of a tutor for the plaintiff, which has now been withdrawn. It does not appear to me that the documents sought have any relevance to whether the defendants have complied with their obligations under the directions and orders made for the preparation of this matter, especially since the defendants have not failed to file and serve evidence in accordance with directions of the Court, nor are there any extant orders for them to do so.

24. Even if the revised versions of the proposed subpoenas provided to the first defendant’s solicitors on 13 and 17 March 2019 are considered, the principal defects referred to above have not been remedied, nor can it be concluded that these would serve any legitimate forensic purpose.

25. Finally, there are no interests of justice that require the Deputy Registrar’s decision to be set aside. This is so, not least because the plaintiff can still apply for leave to issue:

1. properly formulated subpoenas that seek documents relating to matters in issue in the proceedings, as disclosed on the pleadings or on some properly based interlocutory motion; and

2. subpoenas to persons to attend to give evidence, when a relevant hearing date has been fixed, provided that it can be established that the recipient’s evidence is likely to relate to a matter in issue at the final or an interlocutory hearing.

26. For these reasons, in my view, the Deputy Registrar’s decision to refuse leave to issue the proposed subpoenas should be confirmed.

Prayer 2 – Application for leave to issue two further subpoenas

27. The second prayer for relief concerned leave to issue two further subpoenas “in the context of both Defendants refusing to respond to Notices to Produce”. From the plaintiff’s oral submissions, it appears that she was seeking, by these subpoenas, to obtain the same documents or things as were sought in her notices to produce. The proposed recipients were Dr Padhi and Mr Harvey.

28. The primary difficulty with this prayer is that the notices to produce have been stood over to 15 April 2019. Accordingly, the defendants have not yet been required to respond to those notices to produce.

29. In these circumstances, the issue of those subpoenas does not appear to have practical utility or to serve any legitimate forensic purpose. As I understood her submissions, the plaintiff accepted that, in these circumstances, these subpoenas were not required, at this time.

30. Further, if any of those notices to produce are liable to be set aside, as the defendants foreshadowed they would seek, it is likely also that subpoenas seeking the same documents or things would also be liable to be set aside. This consideration provides an additional basis for refusing leave to issue the subpoenas, at this time before the notices to produce have been dealt with.

31. I note, however, that since the motion for the appointment of a tutor has now been withdrawn, it may be the case that the notices to produce can be called on sooner than 15 April 2019. That is a matter that can be raised with the Registrar when the matter is next in the Registrar’s list on 29 March 2019.

32. In all the circumstances, leave to issue the two proposed subpoenas “in the context of both Defendants refusing to respond to Notices to Produce”, at this time, should be refused.

Prayer 3 – The interlocutory injunction

33. The third prayer for relief was for an “[i]nterlocutory injunction against defendants (and potential defendants) to file further evidence in any form until trial.”

34. It should be noted that an order was made originally that the defendants file their evidence by 15 February 2019. But those orders were vacated by consent on 29 January 2019 and there is no extant order requiring the defendants to serve or file their evidence by any date. As I understand it, the defendants have not yet served or filed their evidence in respect of the substantive proceedings.

35. If it was intended to seek an interlocutory injunction in the form set out in the amended notice of motion, such an injunction should not be granted. If an injunction were to be granted in the form sought, the Court would be preventing the present defendants, and any defendants who might subsequently be joined in these proceedings, from filing evidence before trial. This would not assist, or be fair to, the plaintiff as she would be required to serve her evidence but would not know what evidence was intended to be relied upon by the defendants before they called that evidence at trial.

36. If I have misunderstood what was intended by prayer 3 and it was intended that the interlocutory injunction should prevent the defendants from filing, and relying on at trial, any evidence that has not already been served, it should not be granted. As noted above, there has been no failure by the defendants to comply with any direction to serve evidence. The only direction in that regard was vacated by consent. An injunction to prevent the defendants from serving and relying on any further evidence would be obviously unfair and inconsistent with the principle that both sides to a litigious dispute are entitled to put their evidence before the Court, in the absence of some disentitling conduct, of which there is none on the part of the defendants in the present case.

37. Consequently, the application for the interlocutory injunction, as sought, should be refused.

38. I stop to observe here, however, that the plaintiff’s oral submissions indicated that what was actually being sought was not an interlocutory injunction to the effect of the words in prayer 3, but rather an injunction to prevent what the plaintiff perceives to be wide ranging harassment, fraud, identity manipulation, and criminality, including by persons unknown, as well as delay in having these proceedings heard, all of which she finds distressing and intolerable. The transcript records the plaintiff’s contentions in that regard.

39. This is not, however, the application that is disclosed in prayer 3 of the amended notice of motion. Nor is it the application that the defendants were required to meet at the hearing before me. Moreover, the plaintiff raised these points principally, if not entirely, in her reply submissions, in what was intended to be a short matter in the Duty List. It would be manifestly unfair to all parties to attempt to determine an application for such an interlocutory injunction when dealing with the amended notice of motion filed on 21 March 2019.

Conclusion

40. For the reasons set out above, none of the relief sought in the amended notice of motion dated 21 March 2019 should be granted.

41. As this motion relates to other motions and other interlocutory aspects of the proceedings, it appears that it would be appropriate, as the defendants submitted, for costs to be reserved.

42. Accordingly, the Court orders that:

1. The amended notice of motion filed 21 March 2019 is dismissed.

2. Costs of this motion are reserved.

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Decision last updated: 27 March 2019