Kitoko v Sydney Local Health District

Tribunal proceedings and decision

1. SLHD applied to have the Tribunal proceedings dismissed under s 102 of the AD Act, on the basis that the Complaint lacked substance and did not disclose a contravention of the AD Act. In addition, SLHD asked the Tribunal to dismiss the proceedings because of the alleged significant delay in bringing the Complaint.
2. The Tribunal heard the application on 1 February 2017 and published its decision and reasons on 27 June 2017. The Tribunal decided to exercise the power to dismiss Mr Kitoko's complaint under s 102, relying on s 92(1)(a)(i) and (ii). The Tribunal concluded that Mr Kitoko's complaint was "frivolous, vexatious, misconceived or lacking in substance" and that the conduct he had complained about "if proven, would not disclose a contravention of the provisions of [the AD Act]". The Tribunal dismissed Mr Kitoko's complaint, relevantly finding that:

• The evidence did not support a finding that the relevant report was available to Dr Lord at the time he made the alleged comment.
• There was some evidence that the report was not provided to Mr Kitoko's treating doctor, Dr Hsu. However, there was no evidence that either Mr Kitoko or Dr Hsu had asked for a copy of the report.
• There was no evidence that Dr Lord or the Hospital declined to provide a copy of the report or declined a request for a copy of the report.
• The evidence did not support the proposition that there was no basis for the opinion expressed by Dr Lord to Dr Hsu in the letter dated 23 October 2012.
• Even if Dr Lord did say the words alleged, a single racist comment could not be said to relate to the terms on which a medical practitioner provides a patient with medical services.

1. The Tribunal also refused leave to amend the complaint to include a number of issues first raised in an affidavit dated 8 December 2016. These issues included Dr Lord's alleged failure to refer Mr Kitoko for treatment of a ruptured tooth.

Mr Kitoko's action after the Tribunal's decision

1. Mr Kitoko sought to appeal the Tribunal's decision to the Supreme Court by filing a summons on 24 July 2017. Mr Kitoko proceeded with the summons, although SLHD advised him that the appeal was not competent.
2. On 29 September 2017, the summons was dismissed and Mr Kitoko was ordered to pay SLHD's costs.
3. Mr Kitoko subsequently lodged this appeal on 4 October 2017.

Submissions and evidence

1. In deciding the appeal, we have had regard to the following:

• The Notice of Appeal received on 4 October 2017 and attached documents;
• The Reply to Appeal dated 7 November 2017 and attached documents;
• Mr Kitoko's affidavit dated 28 November 2017
• Bundle of documents from SLHD received on 29 November 2017
• SLHD's outline of submissions received on 20 December 2017;
• Mr Kitoko's submissions received on 15 January 2018;
• Directions made by the Appeal Panel at call over;
• Application for summary dismissal received on 23 August 2017;
• The Tribunal's decision and reasons dated 27 June 2017;
• Documents handed up by SLHD at the hearing, being Mr Kitoko's statement dated 8 September 2016 explaining the delay in lodging a complaint with the ADB; and
• The oral submissions made by Mr Kitoko and Ms Doust at the hearing.

Scope and nature of internal appeals

1. The Tribunal's decision was an interlocutory decision, as it summarily dismissed Mr Kitoko's proceedings: s 4 NCAT Act. An appeal from an interlocutory decision requires leave of the Appeal Panel: s 80(2)(a) NCAT Act.
2. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel summarised the principles to be applied in considering whether to grant leave to appeal under s 80(2)(b) of the Act, stating: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (i) issues of principle; (ii) questions of public importance or matters of administration or policy which might have general application; or (iii) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (iv) a factual error that was unreasonably arrived at and clearly mistaken; or (v) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Extension of time

1. Mr Kitoko's Notice of Appeal was received on 4 October 2017, which is outside the 28 day time period specified in cl 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (the Rules).
2. The Appeal Panel may extend time for lodging an appeal under s 41 of the NCAT Act.
3. The Appeal Panel considered the factors relevant to whether time to appeal should be extended in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. It stated, at [22]: 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant -Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
4. In relation to the length of the delay, the appeal should have been lodged by 25 July 2017. It was lodged on 4 October 2017; that is, more than two months after it should have been lodged. This is a significant delay, which weighs against extending time.
5. In relation to the reasons for the delay, at the hearing Mr Kitoko submitted that:

• After the Tribunal hearing he sought advice from Legal Aid and had been told that he could appeal either to the Appeal Panel or to the Supreme Court.
• The Registrar in the Supreme Court allowed him to file the summons.
• Although SLHD had advised him that the Supreme Court could not hear his appeal, he could not take advice from his opponent.

1. Mr Kitoko provided no evidence to corroborate his submission that Legal Aid told him he could appeal to the Supreme Court. Further, the fact that he was not prevented from filing a summons in the Supreme Court does not demonstrate that the Supreme Court had jurisdiction to deal with his appeal. Finally, while we accept that as an unrepresented litigant Mr Kitoko was disinclined to trust his opponent, the advice he received should have put him on notice that his Supreme Court summons may be incompetent and that he should take steps to inform himself as to his rights. This could have been done quite easily by contacting the Tribunal's Registry for information about appeals. Overall, we conclude that the reasons for the delay in lodging the appeal are unsatisfactory and weigh against extending time.
2. In relation to the merits of the appeal, we will deal with this below.
3. As far as prejudice to SLHD is concerned, we accept that there is a degree of inherent prejudice to a successful party where there is a delay in lodging an appeal. However, we do not consider that any prejudice to SLHD is a factor that weighs strongly against extending time. This is because SLHD was always on notice that Mr Kitoko sought to appeal the Tribunal's decision. Had he initially lodged an internal appeal, it would have been necessary for SLHD to respond to the appeal in any event. In circumstances where SLHD was awarded costs in the Supreme Court, it is in no worse a position defending an internal appeal lodged on 4 October 2017 than would have been the case had the appeal been lodged prior to 25 July 2017.

Grounds of appeal and Mr Kitoko's submissions

1. The grounds of appeal specified in the Notice of Appeal are: 1. The Tribunal showed partiality and injustice by originally listing the hearing on 16 October 2016 and only informing the respondent about the hearing date. 2. The Tribunal showed partiality and injustice by refusing to allow him to submit evidence concerning Dr Lord's refusal to refer him for further diagnostic treatment for a tooth eruption. 3. The Tribunal showed partiality and injustice by refusing to give leave for cross-examination of the respondent's witnesses. 4. The Tribunal showed partiality and injustice in giving a misleading or inaccurate representation of his claim and evidence in the whole of the decision.
2. At the hearing, Mr Kitoko indicated that his two objections to the decision were that the Tribunal was not impartial and that a decision had been made without taking his evidence into account.

Ground 1

1. It is not in dispute that the hearing of SLHD's dismissal application was listed for hearing on 16 October 2016. Mr Kitoko alleges that the Tribunal deliberately did not inform him of this hearing date. However, no evidence has been provided which substantiates that assertion. From time to time a party does not receive a hearing notice. This can occur for a range of reasons. However, non-receipt of a hearing notice does not mean that such a notice was not generated or that it was not sent.
2. In any event, the hearing ultimately took place on 1 February 2017. Mr Kitoko was present at the hearing and made submissions. Mr Kitoko has not demonstrated that he suffered any prejudice because he was unaware of the 16 October 2016 hearing date.
3. We are not satisfied that Mr Kitoko has established this ground of appeal.

Ground 2

1. As noted above, when hearing the dismissal application, the Tribunal did not allow Mr Kitoko to amend the Complaint to include an allegation that Dr Lord had not referred him for further diagnostic treatment for a ruptured tooth.
2. We are not satisfied that the Tribunal erred in refusing leave to amend the Complaint or that this decision was unfair or showed partiality to SLHD.
3. In relation to this, while this incident allegedly occurred in 2012, Mr Kitoko did not include it in the Complaint lodged in 2015 and first raised it in an affidavit dated 8 December 2016. By this stage, Dr Lord had died. The delay in making the allegation, coupled with the fact that Dr Lord's death made it impossible for SLHD to respond to it, sufficiently justifies the Tribunal's decision not to allow Mr Kitoko to amend the Complaint.
4. The Tribunal's refusal to allow Mr Kitoko to amend the Complaint was not unjust. Nor did it show partiality to SLHD. This ground of appeal is not established.

Ground 3

1. It is not in dispute that Mr Kitoko sought to cross-examine Dr Corbett (who prepared the report of the nerve conduction study) and Dr Hsu, whom he described as SLHD's witnesses.
2. However, we accept Ms Doust's submission that SLHD had not served evidence from Dr Corbett or Dr Hsu on the dismissal application. In these circumstances, Mr Kitoko was not seeking to cross-examine SLHD's witnesses. If Mr Kitoko had wanted the Tribunal to hear their evidence, it was open to him to approach either or both doctors to provide evidence in defence of the dismissal application.
3. We conclude that there is no substance to this ground of appeal.

Ground 4

1. This was the ground Mr Kitoko particularly pressed at the appeal hearing.
2. While we accept that Mr Kitoko believes the Tribunal did not take his evidence into account, we are not satisfied that this is so. Further, we do not accept that the Tribunal misrepresented Mr Kitoko's claim. The Tribunal's reasons for decision make it clear that the Tribunal understood the basis of Mr Kitoko's Complaint and that it carefully considered his case. We are not satisfied that the Tribunal made mistaken findings of fact, or that it misapplied the law to those facts.
3. In this regard, we note that the Tribunal correctly summarised the approach that should be taken in determining an application for summary dismissal. The Tribunal stated, at [9]-[11]: 9. Consistent with the approach taken by the Civil and Administrative Tribunal of NSW (NCAT) and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal, in deciding whether to exercise the power to summarily dismiss a complaint, or part of a complaint, we have taken the facts on which Mr Kitoko relies at their highest and considered whether they reveal an arguable case to which Dr Lord and/or the SLHD should answer: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38]. 10. The power to dismiss a complaint under s 102 must be exercised with extreme caution: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16. The need for the exercise of caution is even more apparent where, as in this case, the dismissal application is made prior to the adducing of Mr Kitoko's evidence at the substantive hearing: Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36]. 11. A complaint can be said to "lack substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
4. We consider that far from disregarding Mr Kitoko's evidence or misinterpreting his case, the Tribunal took Mr Kitoko's Complaint at its highest.
5. First, in relation to Dr Kitoko's claim that Dr Lord and the Hospital did not provide a copy of the report, the Tribunal concluded that while there was some material to support this claim, there was no material indicating that Dr Lord or the Hospital declined to give Mr Kitoko or Dr Hsu a copy of the report: Tribunal's reasons for decision at [40].
6. As the Tribunal recognised, the distinction between "failing to provide" and "refusing to provide" is crucial, as only a refusal to provide services falls within s 19(a) of the AD Act. We detect no error or unfairness in the Tribunal's analysis or conclusions in relation to this issue. Further, it is clear from the reasons for decision that the Tribunal considered the material relied on by Mr Kitoko: Tribunal's reasons for decision at [31].
7. Second, in relation to Mr Kitoko's claim that Dr Lord did not provide the "true" results of the nerve conduction study and that the opinion expressed by Dr Lord in his letter to Dr Hsu dated 23 October 2012 was "misleading and untrue", we are satisfied that there is no error or unfairness in the Tribunal concluding that the material relied on by the applicant did not support that proposition: Tribunal's reasons for decision at [42] to [46]. It is clear that the Tribunal took into account the material Mr Kitoko relied on in relation to this aspect of his Complaint.
8. Third, we detect no error or unfairness in the Tribunal concluding that even if Dr Lord made the alleged statement, it did not disclose a contravention of the Act. This was based on the proposition that the scope of s 19(b) of the AD Act has been held not to extend to the manner in which a service is provided: Tribunal's reasons at [49]. We are satisfied that the Tribunal's analysis in this regard is correct.
9. Ground 4 is not established.

Other assertion made in relation to Tribunal's conduct

1. At the hearing, Mr Kitoko alleged that on the day of the Tribunal hearing, the Tribunal spoke to the respondent outside the hearing room. This allegation was made in the context of Mr Kitoko's assertion that the Tribunal did not act impartially. The allegation was not made in the Notice of Appeal or in the material provided by Mr Kitoko in connection with the appeal.
2. Mr Kitoko's allegation in this regard is a very serious one. Given that the grounds of appeal expressly refer to the Tribunal's alleged favourable treatment of SLHD, it is reasonable to expect that Mr Kitoko would have made the allegation in the Notice of Appeal if it had any substance. Given Mr Kitoko's failure to do so, and taking into account the lack of evidence corroborating the allegation, we are not satisfied that the incident occurred.

Conclusion in relation to extension of time application

1. Mr Kitoko has not made out any of the grounds of appeal. We are not satisfied that the Tribunal wrongly refused leave to amend the Complaint, that it wrongly refused leave for cross-examination of witnesses, that it did not properly consider Mr Kitoko's evidence or the case that was put by him or that the Tribunal heard and determined the application with a lack of impartiality.
2. The lack of merit in Mr Kitoko's grounds of appeal leads us to conclude that an extension of time should not be granted. We have accordingly refused leave to appeal and otherwise dismissed the appeal.

Orders 1. The application for an extension of time is refused. 2. Leave to appeal is refused. 3. The appeal is otherwise dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2018