[2018] HCA 26
Duncan-Strelec v Tate [2009] NSWSC 1252
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
[2000] HCA 63
Equititrust Limited v Tucker (No 2) [2019] QSC 248
Fancourt v Mercantile Credits Ltd (1987) 154 CLR 87
[1983] HCA 25
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
[1964] HCA 69
Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144
House v The King (1936) 55 CLR 499
Source
Original judgment source is linked above.
Catchwords
[2018] HCA 26
Duncan-Strelec v Tate [2009] NSWSC 1252
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63
Equititrust Limited v Tucker (No 2) [2019] QSC 248
Fancourt v Mercantile Credits Ltd (1987) 154 CLR 87[1983] HCA 25
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125[1964] HCA 69
Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144
House v The King (1936) 55 CLR 499[1936] HCA 40
Kioa v West (1985) 159 CLR[2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100[1953] HCA 12
R v WatsonEx parte Armstrong (1976) 136 CLR 248[2017] HCA 23
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434[2001] HCA 18
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
Smits v Roach (2006) 227 CLR 423[2006] HCA 36
State of New South Wales v Madden [2024] NSWCA 40
Stead v State Government Insurance Commission (1986) 161 CLR 141[1986] HCA 54
Tomko v Palasty (No 2) (2007) 71 NSWLR 61[2007] NSWCA 369
Vakauta v Kelly (1989) 167 CLR 568
Judgment (13 paragraphs)
[1]
Background
The history of litigation commenced by Mr Kitoko over nearly a decade was referred to by the primary judge (see the primary judgment at [71]). It is a matter of public record that Mr Kitoko has unsuccessfully commenced, and unsuccessfully appealed or sought leave to appeal, six separate sets of proceedings, some concurrently, in a variety of courts and tribunals (the NSW Civil and Administrative Tribunal, the District Court, the Federal Circuit Court, the Supreme Court, this Court, the Federal Court, and the High Court). The subject matter of the claims made in those proceedings concern the following matters (some overlapping).
First, an injury allegedly suffered by Mr Kitoko on 5 October 2010 in the Broadway Shopping Centre (see the personal injury claim dismissed in Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152, an appeal from which was dismissed by this Court in Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201, and special leave to appeal was subsequently refused by the High Court in Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305).
Second, complaints in 2015 of racial discrimination relating to Mr Kitoko's treatment at Concord Repatriation General Hospital (see Kitoko v Sydney Local Health District [2017] NSWCATAD 209), an application for leave to appeal from which decision was dismissed with costs, as were an application brought before the Appeal Panel seeking leave to appeal (see Kitoko v Sydney Local Health District [2018] NSWCATAP 38) and an application for leave to appeal the Appeal Panel's decision in the Supreme Court (see Kitoko v Sydney Local Health District [2018] NSWSC 1461).
Third, further complaints in 2015 or 2016 of racial discrimination (as well as conspiracy claims) in relation to the discontinuance of Mr Kitoko's then PhD candidature with the University of Technology Sydney (UTS) (see Kitoko v University of Technology Sydney [2018] FCCA 699; an application to extend time to appeal therefrom being dismissed in the Federal Court in Kitoko v University of Technology Sydney [2018] FCA 1004).
Fourth, proceedings commenced in the Supreme Court on 12 October 2017 seeking to set aside the decision to discontinue his PhD candidature, which were summarily dismissed (see Kitoko v University of Technology [2018] NSWSC 1007), an appeal therefrom being dismissed in Kitoko v University of Technology Sydney [2019] NSWSC 1437.
Fifth, proceedings commenced in the Federal Court in 2020 against various respondents (including UTS and the Sydney Local Health District) alleging breach of contract, contraventions of the Australian Consumer Law, conspiracy, negligence and breach of fiduciary duty arising out of matters the subject of one or more of the previous claims; those proceedings being summarily dismissed on the respondents' applications (see Kitoko v University of Technology Sydney [2021] FCA 360).
In all of these proceedings, it appears that Mr Kitoko appeared without the benefit of legal representation, as was the case on the present application.
Mr Kitoko's litigious history is relevant, for present purposes, in that it demonstrates that Mr Kitoko is not unfamiliar with court practice and procedure and it provides context in relation to the applications brought by the respondents for summary dismissal of the latest set of proceedings especially the conspiracy claim alleged in these proceedings.
The proceedings the subject of the present application were commenced by Mr Kitoko in November 2022 in the District Court. At that time, Mr Kitoko also commenced very similar proceedings in the Federal Court. In both sets of proceedings Mr Kitoko alleged medical negligence and physical and sexual assault concerning his treatment at Canterbury District Hospital on 21 March 2021 when he presented at the emergency department with abdominal pain and then at St George District Hospital from 22 March 2021 where he was diagnosed and treated for a kidney stone.
The respondents are the entities responsible for the respective hospitals where Mr Kitoko was treated (Sydney Local Health District and South Eastern Sydney Local Health District), the Chief Executive Officer of Sydney Local Health District, Dr Teresa Anderson, and the doctors who treated Mr Kitoko at the respective hospitals (Dr Fatima Pioquinto and Dr David Qui).
Mr Kitoko also alleged a conspiracy on the part of the respondents (in concert with others who were not joined as parties to the proceedings, including "Mirvac's Network and/or UTS and others whose names are unknown to the Plaintiff") to injure or harm him at various times, the first commencing on the date of his injury at the Broadway Shopping Centre on 5 October 2010. That conspiracy appears to be alleged to be in retribution for the fact that Mr Kitoko has "sued and/or continued to sue" various entities who are either party to the proceedings or named as being entities with whom the defendants conspired to act in concert to injure or harm Mr Kitoko. The conspiracy is alleged to have involved the 'blacklisting' of Mr Kitoko by way of an instruction not to admit him as a patient at the hospitals.
The District Court proceedings were transferred to the Supreme Court on 21 March 2023 and the Federal Court proceedings were discontinued by Mr Kitoko.
Before the transfer of the proceedings to the Supreme Court, Mr Kitoko, by notice of motion filed on 16 March 2023 (later amended on 24 May 2023), sought orders for summary judgment in his favour against the respondents pursuant to r 13.1 of the UCPR or, in the alternative, for the entry of default judgment pursuant to r 16.3(1) of the UCPR. Those applications were premised on the failure by the respondents to file a defence within the 28-day time period specified in the UCPR (and/or, in the case of the summary judgment application, the respondents' failure to file any evidence).
The respondents then, by notice of motion filed on 3 May 2023, sought orders for the summary dismissal of the proceedings pursuant to r 13.4 of the UCPR or, alternatively, for the proceedings either to be struck out pursuant to r 14.28 of the UCPR or permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act). Mr Kitoko's amended 24 May 2023 notice of motion sought orders for the setting aside, strike out or stay of these applications.
Finally, by notice of motion filed on 25 July 2023 (the day before the hearing of the respective applications for summary judgment/dismissal), Mr Kitoko sought leave pursuant to s 64 of the Civil Procedure Act to file an amended statement of claim, including to introduce claims for misleading or deceptive conduct or unconscionable conduct (of the kind that had been pleaded in his discontinued Federal Court proceedings).
[2]
Primary judgment
The primary judge heard the respective interlocutory applications on 26 July 2023 and handed down judgment on 7 August 2023. Mr Kitoko appears to regard the publication of judgment ten days after the hearing of the applications as evidence of bias or apprehended bias on the part of the primary judge (see his submissions dated 7 November 2023 at [37]). This is dealt with in due course. Suffice it at present to note that the efficient disposal by a judge of applications of this kind can only be commended and could not of itself be understood by the reasonable fair-minded lay observer to give rise to an apprehension of bias; nor does it indicate any actual bias (in the sense of pre-judgment as Mr Kitoko appears here to contend) on the primary judge's part. A not dissimilar submission, albeit not raising any allegation of bias, based on the expedition with which a reserved judgment was delivered was rejected in 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72 (see Ward P at [70]; Leeming JA at [161]-[165]; Bell CJ agreeing at [1]).
By way of brief summary of his Honour's reasons, the following may be noted.
His Honour set out Mr Kitoko's personal background and litigious history (at [7]-[21] of the primary judgment) and then turned to consider the particular allegations made in the pleadings in the present case (from [22]-[31] of the primary judgment). His Honour next considered the principles governing the summary judgment and dismissal applications, noting that the former (the summary judgment application) would require evidence of the facts on which Mr Kitoko's claim was based (see at [32] of the primary judgment) and that it be apparent that there was no triable issue in defence or that it could be said with a high degree of certainty that Mr Kitoko's claim must succeed (([34]) of the primary judgment); and, for the latter (the summary dismissal application), referring to the authorities which make clear that a very clear case is required, the test being whether on the material before the Court it is apparent that the claim must fail (see as extracted at [33] of the primary judgment).
The distinction between a summary judgment application and a summary dismissal application is important to bear in mind on the present application and does not appear to be understood by Mr Kitoko. It explains the emphasis placed by the primary judge, in relation to the medical negligence case, on the lack of expert medical opinion filed by Mr Kitoko in relation to the matters referred to in r 31.36(1)(a)-(c) of the UCPR, without which his Honour said that Mr Kitoko could not hope to obtain summary judgment for damages to be assessed (see [32]; and also see [39]-[41] of the primary judgment). What is being assessed on a summary judgment application is the evidence adduced by the plaintiff. It is not to the point that, at the time that application is being heard, that the defendant may not have filed evidence contesting the matters asserted by the plaintiff (at least in circumstances where the time for filing evidence by the defendant has not expired). By contrast, in a summary dismissal application, while the Court may receive evidence (see r 13.4(2) of the UCPR), the question whether a pleaded claim is doomed to failure may often be ascertained by reference to the pleadings alone.
[3]
Application for leave to appeal
Although in his written submissions dated 7 November 2023 and in his draft notice of appeal of that date, Mr Kitoko expressly sought an extension of time for the filing of his summons seeking leave to appeal, Mr Kitoko now maintains that no such extension is required (AT 1.50-2.12).
The uncertainty arising in this regard arose in the following circumstances. It is not disputed that the material date was 7 August 2023. Mr Kitoko filed a notice of intention to appeal on 1 September 2023. Thus, Mr Kitoko was required to file and serve the relevant originating process by 7 November 2023 (r 51.9 of the UCPR). The summons seeking leave to appeal was dated 7 November 2023.
However, the summons on the Court file bears two stamps indicating that it was filed on 7 December 2023 (one date stamp being crossed out in pen and the other bearing a handwritten annotation amending "Dec" to "Nov") as well as a stamp indicating that it was "received" by the Supreme Court client services on 18 December 2023. The most likely explanation for the conflicting stamps is that Mr Kitoko forwarded the summons to the Registry with an application for fee relief and that the summons was not stamped as filed until that was determined and then (retrospectively) accepted by the Registry as having been filed on 7 November 2023. If so, then no extension of time is necessary.
The respondents did not identify any prejudice arising out of any delay in the "filing" of the summons (assuming that there was such a delay), although the respondents argue that, if an extension is necessary, it ought not be granted as there is not a fairly arguable case on the proposed appeal (referring to Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] per Basten JA, Hodgson and Ipp JJA agreeing).
We consider that, to the extent that an extension of time is necessary, it should be granted given that no prejudice arises from the delay and given that it would appear that the Registry has accepted that the summons should be treated as having been filed on 7 November 2023, but that the better view is that it is not necessary.
It is, however, worth noting at this point that the draft notice of appeal which Mr Kitoko has served does not on any view comply with the UCPR. It is a 276-page document containing submissions and factual assertions, including references to the affidavit evidence on which Mr Kitoko relied in the proceedings before he primary judge (which was not otherwise before us). It is repetitive and argumentative. Even were leave to appeal to be granted, we would not have given leave for this document to be filed as the notice of appeal. It would have been necessary for a notice of appeal compliant with the UCPR to be prepared. As it is, this issue does not arise as the application for leave will be dismissed.
[4]
Proposed Grounds of Appeal
Mr Kitoko has articulated the following five proposed grounds of appeal:
Ground 1 - Orders 1, 2, 3 and 4 of the orders made by primary judge (Fagan J) were invalids [sic].
Ground 2 - The primary Court made errors of facts and principles in deciding the appellant's summary judgment application under rule 13.1 of UCPR.
Ground 3 - The primary Court made errors of principle in deciding or governing the applicant's claim to judgment by default.
Ground 4 - The primary Court made errors of facts and principles in deciding or governing the appellant's notice of motion filed on 25 July 2023.
Ground 5: The primary Court made errors of facts and principles in deciding or governing the respondents' dismissal applications under rule 13.4 of the UCPR.
Mr Kitoko has also asserted in his written outline of submissions and draft notice of appeal a complaint as to apprehended or actual bias and a denial of procedural fairness (see at [37] of his written submissions dated 7 November 2023), though this is not included as a separate ground of appeal. This will be dealt with separately.
[5]
Ground 1 - complaint as to jurisdiction
Ground 1 of the proposed grounds of appeal, as explained in the submissions and in the draft notice of appeal, amounts to a complaint that the primary judge was exercising Federal jurisdiction when determining the interlocutory applications before him (which jurisdiction Mr Kitoko says was exclusive and ousted State jurisdiction).
Mr Kitoko submits that the primary judge erred in exercising concurrent State jurisdiction (or in exercising only an "irrelevant court jurisdiction"); and hence Mr Kitoko argues that the orders made for judgment in the respondents' favour, dismissing Mr Kitoko's applications and for costs, were legally invalid. Complaint is made that the primary judge acted in violation of s 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act) and ss 77(ii) and 77(iii) of the Constitution. Complaint is also made that his Honour failed in his reasons to refer to s 79 of the Judiciary Act. Submissions contained in the draft notice of appeal refer to the decision of the High Court in Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 as to the operation of that section of the Judiciary Act (see at [11]ff of the draft notice of appeal).
This challenge to his Honour's orders is premised on the assumption that the proceedings then before his Honour included the allegations sought to be introduced by the proposed amended pleading (for which leave was sought in Mr Mr Kitoko's 25 July 2023 notice of motion) - relevantly, the allegations at [38]-[46] of misleading or deceptive conduct and at [47]-[56] of unconscionable conduct under the Commonwealth consumer legislation. Mr Kitoko argues that the fact that the primary judge rejected his application to amend his statement of claim to include these claims does not matter; that once he had filed it in Court Federal jurisdiction was attracted and it was for the primary judge to apply Federal jurisdiction (to the exclusion of State jurisdiction).
Mr Kitoko submits that these were errors of a House v The King kind which, if not corrected, would cause him substantial injustice.
No arguable error is disclosed by this ground of appeal. The pleading before the primary judge did not contain the claims attracting Federal jurisdiction (those were in the amended pleading that Mr Kitoko was seeking leave to file). In any event, even if Federal jurisdiction had been attracted, the procedural rules applicable to a summary judgment or summary dismissal application brought in proceedings in this Court would still have applied. Ground 1 has no prospects of success and leave to appeal on this ground should be refused.
[6]
Ground 2 - complaint as to dismissal of summary judgment application
The proposed ground 2 relates to the dismissal of Mr Kitoko's summary judgment application. Mr Kitoko argues that the primary judge made errors of principle in deciding that application. Mr Kitoko's written submissions on this ground focus on his medical negligence/sexual assault complaints (not the conspiracy allegations), although the draft notice of appeal addresses the claims more generally. Further, although Mr Kitoko characterises the perceived errors as errors of principle, largely they are complaints as to findings made or not made as to factual matters.
In his draft notice of appeal Mr Kitoko appears to accept that there is a reluctance on the part of a court to deny defendants their right to defend proceedings (see at [30] of the draft notice of appeal), having quoted from Fancourt v Mercantile Credits Ltd (1987) 154 CLR 87; [1983] HCA 25 at [99], among other authorities. Nevertheless, he maintains that the primary judge erred in dismissing his application for summary judgment.
As to the medical negligence claims, Mr Kitoko argues that the primary judge erred in finding that, in the absence of an expert medical opinion as to causation of damage from the alleged neglect of treatment and advice, Mr Kitoko could not establish an entitlement to summary judgment, Mr Kitoko there referring to [57] of the primary judgment (where his Honour was dealing with Mr Kitoko's application for summary judgment in respect of the medical negligence claims concerning Canterbury Hospital).
In his written submissions at [13], Mr Kitoko submits that the primary judge erred in the "balancing exercise" in regard to r 31.36(1)(a)-(c) of the UCPR. (The respondents argue, correctly, that there is no such "balancing exercise" required in relation to the requirement for service of an expert medical report addressing the matters required under this rule.) In oral submissions, Mr Kitoko argues that his affidavit affirmed on 28 April 2023 (a copy of which was not before this Court on the present application but the substance of which is set out at various places in Mr Kitoko's draft notice of appeal, which is sufficient for present purposes) satisfies r 31.36 of the UCPR and refers to his draft notice of appeal as setting out the details of the medical evidence (AT 4.20-42).
The medical evidence on which Mr Kitoko relies in that regard (see [67] of his draft notice of appeal) is identified as the following: a Canterbury Hospital Emergency Department Discharge Report (issued by Dr Pioquinto) of 21 March 2021; "consultation notes" issued by Dr Hutchinson (Director of Emergency Medicine at Canterbury Hospital), this being an email from Dr Hutchinson to Mr Kitoko's general practitioner on 14 April 2021 responding to "feedback" from the general practitioner; a St George Public Hospital Urology Department Discharge Report issued by Dr Qui on 24 March 2021; a "report" dated 31 March 2021 by Dr Kumari following discharge from St George Public Hospital (apparently being a summary sent by an orthopaedic surgeon to Mr Kitoko's general practitioner, Dr Chauhan); a report by Dr Baku on 8 April 2021 to Dr Chauhan of an ultrasound of Mr Kitoko's right ankle; a report issued by Dr Chauhan on 9 April 2021 of Mr Kitoko's "Medical Report" for Hepatitis B; St George Hospital discharge report issued by Dr Anderson on 13 April 2021; a report issued by Dr Robertson on 12 June 2021 in respect of an MRI of Mr Kitoko's right ankle; a Physiotherapy Discharge Report dated 27 July 2021 from a physiotherapist, Mr Chiu; and a report issued by Dr Wijesinghe on 30 August 2021 as to a nerve conduction test.
[7]
Ground 3 - dismissal of application for default judgment
Ground 3 of the proposed grounds of appeal relates to the dismissal of Mr Kitoko's application for default judgment.
Mr Kitoko's argument in this regard appears to be that, because of the summary judgment application he initiated on 16 March 2023, the orders made by Registrar Howard on 13 December 2022 no longer applied, nor did they apply of their own force "as a matter of court procedure" (see at [185]-[186] of the draft notice of appeal) such that he was not required to file a UCPR r 31.36(1)(a)-(c) report; and that the respondents did not have a "right to suspend" their obligations to file a defence (see at [187] of the draft notice of appeal).
Complaint is made that the respondents failed to file and serve a defence in compliance with r 14.3(1) of the UCPR and the Court's standard timetable; and that the primary judge erred in holding that the respondents were entitled to act on the basis that they have not been required to file a defence while their summary dismissal application remained to be determined (see at [189] of the draft notice of appeal).
Mr Kitoko notes the provisions of s 143 (1)(a) of the Civil Procedure Act (to the effect that, subject to the rules of court applicable in the higher court, any proceedings with respect to which a transfer order takes effect are to be continued in the higher court as if the proceedings had been duly commenced in the higher court on the date on which they were commenced in the lower court).
Mr Kitoko submits that the transfer of the proceedings from the District Court to the Supreme Court cannot be used "merely as tactic to stifle the litigation" and that the transfer of the proceedings did not stop the respondents' litigation from moving ahead (referring to MD Cosmedical on Hyde Parke Pty Ltd v Spruce Australia Pty Ltd (Supreme Court of New South Wales, Registrar Jones, 23 December 2021)) (see at [189] of the draft notice of appeal).
Mr Kitoko argues that the primary judge therefore erred in failing to hold that neither the transfer of the proceedings to the Supreme Court nor the summary judgement application initiated by him on 16 March 2023 excused the respondents from filing a defence in accordance with the rules of the court. Mr Kitoko argues that this Court would not be satisfied that the respondents have good defences to the claim on its merits; nor that any defences filed would raise issues requiring determination at a full hearing (see [194] of the draft notice of appeal).
[8]
Ground 4 - dismissal of application to amend pleading
Ground 4 of the proposed grounds of appeal raises the dismissal of Mr Kitoko's application to file an amended statement of claim.
Mr Kitoko argues that the primary judge erred in two respects: first, by acting on a wrong principle (or making an error of principle) in failing to give adequate reasons to refuse the application; and, second, a failure to afford procedural fairness (see at [196] of the draft notice of appeal).
As to the first, Mr Kitoko places reliance on Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 7 as to the principles applicable on an application for leave to amend a pleading (and also cites in this regard Perpetual Ltd v Onesemo [2010] NSWSC 43 at [14], [30] per Harrison AsJ; Reliance Financial Services NSW Pty Ltd v Sobbi [2009] NSWSC 1375; Duncan-Strelec v Tate [2009] NSWSC 1252 and Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144). Mr Kitoko submits that the finding at [70] of the primary judgment that the factual allegations were so incapable of being established at trial that there was no warrant for allowing them to proceed to trial was contrary to the objectives set out in s 64 of the Civil Procedure Act (and ss 56, 57 and 58 of that Act, as well as r 6.18(1)(d) of the UCPR (see at [233] of the draft notice of appeal)).
As to the second, complaint is made that the primary judge refused even to consider the "fresh evidence" that Mr Kitoko wished to adduce. Mr Kitoko submits that he was thereby denied procedural fairness, in that he was not afforded an adequate opportunity to advance his case (citing Kioa v West (1985) 159 CLR 550 at 582 (per Mason J); [1985] HCA 81) (see at [252] pf the draft notice of appeal). Mr Kitoko says that this is not a case where, on the material, this Court could be satisfied that the primary judge's decision was inevitable, even if procedural fairness had been afforded (citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 54).
Ground 4 is also without prospects of success. The primary judge's reasons for refusing the application further to amend the pleading were clearly and concisely stated. His Honour refused the application because the amendments were based on the factual contentions that his Honour considered were doomed to failure. There is no error in refusing leave to amend on the basis that the amendment is doomed to failure. As to the complaint about lack of procedural fairness on the basis that his Honour did not consider the fresh evidence that Mr Kitoko wished to adduce, Mr Kitoko has himself been unable to identify the particular evidence that he proposed to adduce in support of his claims (referring to unspecific evidence and to unidentified witnesses). As the primary judge made clear, Mr Kitoko had ample opportunity to adduce an expert medical opinion as required under r 31.36(1)(a)-(c) of the UCPR.
[9]
Ground 5 - challenge to summary dismissal of proceedings
Ground 5 addresses Mr Kitoko's challenge to the decision of the primary judge summarily to dismiss the proceedings under r 13.4 of the UCPR. Mr Kitoko complains that the primary judge made errors of fact and principle in this decision.
Mr Kitoko relies on the decision of Bowskill J, as her Honour then was, in Equititrust Limited v Tucker (No 2) [2019] QSC 248 where her Honour considered an application to strike out all or part of the statement of claim before a defence was filed and the defendants had applied for summary judgment. Her Honour was there disinclined summarily to dismiss the plaintiff's claim before any defence was filed, saying that to do so would only be appropriate if the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (per Barwick CJ); [1964] HCA 69 (General Steel) was satisfied. Mr Kitoko complains that the respondents in the present case have failed to provide relevant evidence and have failed to file a defence; and thus should not be entitled to the dismissal of the proceedings (see at [257]-[258] of the draft notice of appeal).
Mr Kitoko also complains that the then Registrar of the Common Law Division failed to afford him procedural regularity, in making directions on 19 April 2023 (specifically order 2, which stated: "The Defendants are to file and serve a Notice of Moiton seeking summary dismissal or strike out by 10 May 2023") on a basis which differed from those made by Registrar Howard in the District Court on 13 December 2022, and without requiring the respondents to provide a reasonable explanation as to why order 5 of the orders made by Registrar Howard (which stated, "Any application to strike out the claim or any part of the claim to be filed and served by 31/3/23 and returnable 14/4/23") had not been complied with in time (and without giving Mr Kitoko the opportunity to be heard on the point) (see [260] of the draft notice of appeal). A similar complaint of procedural unfairness is made in relation to this (see at [268]). Those complaints have no relevance to the current application which needs to focus on error by the primary judge in summarily dismissing the proceedings.
Mr Kitoko argues that in light of the evidence filed by him in the proceedings (referring to Annexures A to K of his affidavit affirmed on 28 April 2023, which he says still remains uncontested by the respondents) it cannot be said that his claim is so untenable that it cannot possibly succeed and thus the General Steel test is not satisfied (see at [257] of the draft notice of appeal). Mr Kitoko submits that there should have been no thought of bringing the respondents' summary dismissal application under r 13.4 of UCPR "at least until after discovery, and possibly at all, and also until after Defendants' defence is filed" (at [257]).
[10]
Bias; apprehended bias and denial of procedural fairness
As adverted to earlier, Mr Kitoko also complains that the primary judge has demonstrated actual and/or apprehended bias against him; and that he was denied procedural fairness during the hearing on 26 July 2023 (see at [37] of his submissions dated 7 November 2023).
As to the allegation of actual bias, Mr Kitoko says that the primary judge had pre-judged his claim (citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J); Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[73] (Gleeson JA, Emmett and Tobias JJA agreeing)) (see at [287]-[288] of the draft notice of appeal).
As to apprehended bias, Mr Kitoko has cited in his draft notice of appeal the relevant test (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner)) and acknowledges that a two-step process is required for the establishment of apprehended bias. Mr Kitoko complains that he was not given an opportunity to make submissions (pointing to the transcript which he says shows that the respondents' counsel made submissions for most of the morning and that he was not given an opportunity to be heard after the luncheon adjournment). Mr Kitoko also says that the primary judge was intimidatory and bullying towards him (which appears to be a complaint as to the robustness of questions from the bench or the like) (AT 14.18-15.3).
Mr Kitoko maintains his complaint that the primary judge had not viewed the material (his submissions and affidavits) which was part of the material he relied on (see [290] of the draft notice of appeal). Mr Kitoko says that he had also complained of actual and apprehended bias against the Registrar of the Common Law Division. Mr Kitoko contends that, by failing to deal with and adjudicate on this assertion as to the Registrar, the primary judge demonstrated actual bias, demonstrated corrupt conduct; judged against the weight of the evidence; and failed to treat Mr Kitoko fairly and with patience (see at [290]-[291]).
As to the complaint of denial of procedural fairness, Mr Kitoko complains of the primary judge's failure to afford him a reasonable opportunity to adduce relevant evidence to deal with adverse material or to require witnesses for cross-examination (see at [295]) of the draft notice of appeal)).
[11]
Conclusion
The prospects of appeal are so low as not to warrant any grant of leave. The summons should be dismissed. As to costs, Mr Kitoko in his submissions as to costs has submitted as follows:
3 The respondents pay the applicants costs in this Court. However, an order for costs should not be made in favour of the respondents if the application is refused because, while the NSW Supreme Court had been seized of jurisdiction, it had lacked the power to make order 4. The application submission is that the Court of Appeal should decide the summons on the footing that the NSW Supreme Court had had no power to make orders under Rule 13.1 of Uniform Civil Procedure Rules 2005 (NSW), Section 64 of Civil Procedure Act 2005 (NSW), and Section 98(4)(c) of the Civil Procedure Act 2005 (NSW), and that the Court of Appeal should order payment out of the $64 thousand imposed by Fagan J to the applicant.as a punishment.
There is no warrant for an order other than one in accordance with the general rule that costs follow the event. The award of costs is compensatory, not a punishment. No error was shown by the primary judge in relation to the costs order his Honour made; and a similar order should be made on this application.
[12]
Orders
The orders of the Court will be:
1. Dismiss the summons seeking leave to appeal.
2. Order the applicant to pay the respondents' costs of the proceedings in this Court.
[13]
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: 12 March 2024
18] NSWSC 1461
Kitoko v Sydney Local Health District [2023] NSWSC 898
Kitoko v University of Technology [2018] NSWSC 1007
Kitoko v University of Technology Sydney [2018] FCA 1004
Kitoko v University of Technology Sydney [2018] FCCA 699
Kitoko v University of Technology Sydney [2019] NSWSC 1437
Kitoko v University of Technology Sydney [2021] FCA 360
MD Cosmedical on Hyde Parke Pty Ltd v Spruce Australia Pty Ltd (Supreme Court of New South Wales, Registrar Jones, 23 December 2021)
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Mohareb v Kelso (No 2) [2018] NSWCA 246
Morocz v Marshman [2016] NSWCA 202
Najjar v Haines (1991) 25 NSWLR 224
Perpetual Ltd v Onesemo [2020] NSWSC 43
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 12
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Reliance Financial Services NSW Pty Ltd v Sobbi [2009] NSWSC 1375
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
State of New South Wales v Madden [2024] NSWCA 40
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Wallace v Kam [2012] NSWCA 82
Wickstead v Browne (1992) 30 NSWLR 1
Category: Principal judgment
Parties: Vangu Kitoko (Applicant)
Sydney Local Health District (First Respondent)
Teresa Anderson (Second Respondent)
Fatima Santiago Pioquinto (Third Respondent)
David Qui (Fourth Respondent)
South Eastern Sydney Local Health District (Fifth Respondent)
Representation: Counsel:
V Kitoko (Self-Represented)
R Perla (Respondents)
Allegations of bias and denial of procedural fairness
(6) There is nothing in the present case to support the applicant's assertion of pre-judgment; the questioning by the primary judge was clearly in order to come to a clear understanding of the applications being made, and the fact that judgment was handed down ten days after the hearing does not give rise to any inference of pre-judgment (the Court at [19], [122]).
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 12; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39; Mohareb v Kelso (No 2) [2018] NSWCA 246; 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72 considered.
(7) There can be no reasonable apprehension of bias arising from the fact that the primary judge dealt first with the submissions in support of the summary dismissal application before turning to the submissions in relation to the applicant's applications (the Court at [125]). The transcript also reveals that the primary judge frequently sought the applicant's response and invited submissions; there is nothing to support the assertion of intimidation or bullying (the Court at [126]). Robust questioning, or even deprecatory comments about the pleading, does not amount to intimidation or bullying, nor does it indicate pre-judgment or apprehended bias.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 applied.
(8) Consideration of the primary judge's reasons, and the questions raised by his Honour during the hearing, demonstrates that the applicant's complaint that he was denied procedural fairness due to the primary judge's failure to consider the material cannot be made good (the Court at [127]).
The primary judge had regard to the seven affidavits affirmed by Mr Kitoko in support of his applications ([35]-[38] of the primary judgment), noting that various of the affidavits contained legal argument and submissions.
His Honour summarised the claims of negligent breach of duty which engaged r 31.36 of the UCPR and said that Mr Kitoko was in breach of that rule (not having filed with his statement of claim an expert medical report supporting an opinion as to the matters there required nor having served or filed any such report over the subsequent eight months up to the hearing of the notices of motion) (see at [40]-[41] of the primary judgment). Mr Kitoko here challenges this finding.
As to the filing of a defence, the primary judge noted that the amended statement of claim had been filed in the District Court on 25 November 2022 and that, pursuant to r 14.3 of the UCPR, the defendant(s) had until 23 December 2022 within which to file a defence but that on 13 December 2022 orders were made in the District Court by Registrar Howard. Those orders included directions for Mr Kitoko to make any request for documents and/or CCTV footage by 23 December 2022, the defendant(s) to respond to any request for documents by 10 February 2023; and Mr Kitoko to serve any expert report under r 31.36 of the UCPR by 17 March 2023 (see [41] of the primary judgment). As will be seen, his Honour considered that those orders implicitly had the effect that the time for the filing of a defence ceased to run while procedural steps were to be undertaken for compliance with that rule (see [69] of the primary judgment). Mr Kitoko also challenges this conclusion.
The 13 December 2022 directions made in the District Court referred to a foreshadowed request for production of CCTV footage. At [42]-[44], the primary judge referred to the service by Mr Kitoko, following those directions, of notices to produce, among other things, CCTV footage from the respective hospitals and the response thereto. His Honour was satisfied, on the basis of affidavit evidence read by the defendants at the hearing of the notices of motion, that no relevant CCTV footage was available. In particular, his Honour noted that neither of the hospitals recorded images from cameras in clinical areas, in the interests of patient privacy; and that footage recorded from CCTV cameras in public non-clinical areas was erased or written over after 21 days (see at [44] of the primary judgment). The non-production of CCTV footage remains a continuing source of complaint by Mr Kitoko, who accuses the respondents of deliberate (and wrongful) destruction of evidence (AT 5.21-22).
His Honour considered (see at [45] of the primary judgment) that Mr Kitoko's failure to comply with r 31.36 of the UCPR up to the date of judgment was without justification, observing that if any of the negligence claims were capable of being sustained, Mr Kitoko would be able to obtain an expert medical opinion in support of those claims based upon assumptions as to the accuracy of a history given by him.
The primary judge then summarised the evidence tendered by the respondents, which included (at [46]-[52] of the primary judgment): hospital records from both hospitals; a letter from a radiologist indicating that Mr Kitoko had been referred to him for renal imaging (as recommended in the Canterbury Hospital discharge referral) and the identification by that radiologist of kidney stones; records of Mr Kitoko's admission to St George Hospital (the day after his discharge from Canterbury Hospital); the review at St George Hospital of the medical imaging and contemplation of possible surgery in relation to the kidney stones; and (significantly) a consent signed by Mr Kitoko in relation to the procedures proposed by the urology registrar at St George Hospital (a cystoscopy which involved the insertion of a hollow tube through the urethra to the bladder, right uteroscopy (progression of the camera device through the right ureter to the kidney), laser breakdown of the identified kidney stone and insertion of a stent in the right ureter). His Honour also noted that in evidence were the discharge notes and letter from St George Hospital, including information for the patient to take potassium rich foods and as to a further procedure to be carried out at a later date (for which Mr Kitoko also signed a consent form). That further procedure was carried out on 13 April 2021 and the right ureteric stent was subsequently removed on 19 April 2021.
His Honour also referred to records of Mr Kitoko's presentation at St George Hospital on 29 March 2021 and again on 30 March 2021 with complaints of blood in his urine, lower abdominal pain and urinary urgency, and pain to bilateral feet and legs; and to the investigation and observations in relation to those complaints by those treating Mr Kitoko at St George Hospital.
The primary judge then proceeded to determine the competing summary applications (i.e., Mr Kitoko's summary judgment application and then the respondents' summary dismissal application) in respect of: first, the conspiracy allegations (see at [53]-[56] of the primary judgment); second, the medical negligence claims relating to Canterbury Hospital concerning alleged failure to treat and advise Mr Kitoko with respect to kidney failure and low potassium levels (see at [57]-[60]); and, third, the medical negligence and other claims relating to St George Hospital concerning: alleged sexual assault while under anaesthetic; abusively spraining Mr Kitoko's right lower limb and right foot; injecting Mr Kitoko's peroneal nerve with an unknown substance infected with Hepatitis B; the allegation that several "Neuro-Physio tests" were performed on Mr Kitoko; and that Mr Kitoko was discharged without information as to his condition, particularly his low potassium level (see at [61]-[68]). His Honour found that there was no evidence to support an order for summary judgment on any of those claims; and concluded that the claims should be summarily dismissed.
Relevantly, in each case the primary judge separately addressed, first, the summary judgment application (which required an assessment of the evidence on which Mr Kitoko relied) and then the summary dismissal application (which involved an assessment as to whether the pleaded claims were doomed to failure).
As to the conspiracy allegations, the primary judge said that Mr Kitoko could not have summary judgment for the primary reason that he did not allege, let alone adduce evidence of, all the elements of the tort (see at [53] of the primary judgment). His Honour explained (at [54]) the matters of which there was no evidence and concluded that a case for summary judgment on those allegations had not been made out.
His Honour next explained why the conspiracy claim should be summarily dismissed: first, by reason of the insufficiency of the pleading and, second, because elements of the tort were refuted by the hospital records tendered by the respondents (noting that the veracity of the hospital records had not been challenged nor had there been a suggestion that Mr Kitoko would be able to make such a challenge at trial). His Honour observed that the copies of the records annexed to Mr Kitoko's own affidavits showed that he had received full treatment of the condition with which he presented and that he was not put to any personal expense by reason of any refusal of the hospitals to treat him (see at [55] of the primary judgment).
His Honour made clear that he did not accept the defendants' submission that Mr Kitoko was estopped from prosecuting his conspiracy allegation (by reason of the earlier Federal Court proceedings); rather, that those claims were summarily dismissed on the basis that the conspiracy allegations were bound to fail for deficient pleading and factual refutation (see at [56] of the primary judgment).
As to the medical negligence claims concerning Canterbury Hospital, again the primary judge first addressed Mr Kitoko's claim for summary judgment (see at [57] of the primary judgment). His Honour noted that Mr Kitoko had not pleaded or provided any evidence of injury or damage caused by the alleged negligence (the alleged failure to treat and advise him with respect to kidney failure and low potassium levels). His Honour rejected an application made by Mr Kitoko during the hearing for further time in which to obtain a medical opinion about causation of damage from alleged neglect of treatment and advice on 21 March 2021, that refusal being in circumstances where Mr Kitoko had not pleaded this essential element of the cause of action and had been knowingly in default of the requirement to provide such an opinion since at least 13 December 2022.
Pausing here, his Honour at [57] referred to the application as being for a two-month period to obtain this evidence; Mr Kitoko cavils with this and says that his application was for a one month period in order to provide that evidence. The transcript of the hearing before Fagan J, which was handed up by Mr Kitoko during the hearing of this application, records that Mr Kitoko first asked for "reasonable time" to provide the requisite report; then said that he would provide the report in "maybe two months" and, when his Honour said that Mr Kitoko would not be given two months, Mr Kitoko asked for one month and said that he would "do his best", acknowledging that "from day one" in the District Court it was he who should have provided the report (see 26/07/23; T 61.30-45).
Returning then to the primary judgment, his Honour next addressed the respondents' application for summary dismissal of the medical negligence claims concerning Canterbury Hospital. His Honour accepted that the claims were foredoomed to failure: first, because they were incomplete as a matter of pleading; and, second, on the basis that the undisputed Canterbury Hospital records showed that on discharge both Mr Kitoko and his general practitioner (Dr Chauhan) were informed that his blood potassium level was low, that further investigations were required concerning the health of his kidneys, and that he should return to the hospital in the event of fever, worsening pain or other concerns (see at [58] of the primary judgment). Again, the primary judge pointed to evidence that Mr Kitoko had himself tendered and relied upon in this regard (at [59]). The primary judge observed that the records of successful treatment at St George Hospital (the veracity of which was not disputed and nor was there a suggestion that they would be able to be challenged at trial) were inconsistent with any suggestion that some detriment to Mr Kitoko's health had been occasioned by any delay from 21 March 2021 (his discharge from Canterbury Hospital) to 24 March 2021 (his treatment at St George Hospital) in advising him to eat potassium-rich foods, and his Honour noted that no such suggestion had been pleaded (see at [59]). The primary judge concluded (at [60]) that the defendants were entitled to summary dismissal of the plaintiff's claims concerning medical negligence at Canterbury Hospital.
As to the claims concerning St George Hospital, in each case the primary judge examined the claim made, explained the lack of an evidentiary basis for the claim, and hence the dismissal of Mr Kitoko's application for summary judgment in respect of those claims (see [61]-[68] of the primary judgment).
His Honour next addressed the application for summary dismissal in relation to those claims.
As to the sexual assault claims, his Honour noted the lack of an evidentiary basis for the claims and that, although the statement of claim asserted reliance on an "incoming report from the Police" to establish the assaults, the evidence from the defendants was that the police had found no evidence to support the allegations and closed the investigation into Mr Kitoko's complaint (see at [62] of the primary judgment).
As to the abusive spraining and injection of Hepatitis B claims, his Honour noted that the uncontested hospital records were inconsistent with this and that subsequent medical investigations outside the hospital system at Mr Kitoko's request affirmatively showed that dysfunction in the right lower limb, impairment in the peroneal nerve, and the hepatitis B infection were causally unrelated to treatment in the hospital (see at [63]-[65] of the primary judgment). His Honour also noted that there was no expert medical evidence to indicate that Mr Kitoko could have been adversely affected by the hepatitis B virus (assuming it had been in an injection administered to him) given that Mr Kitoko already had the disease. His Honour considered that this deficiency could not be overcome at trial, noting that this was additional to the apparent inability of Mr Kitoko to identify any record of such an injection having been administered or to attest to it himself or to adduce eye-witness evidence of the alleged event (see at [66]).
As to the complaint that several neuro-physio tests had been performed on Mr Kitoko at St George Hospital on the afternoon of 24 March 2021, the primary judge refused the application for summary judgment on the basis that this allegation was unsupported by evidence of any witness either that the tests had been carried out or that any injury or damage had been caused thereby (see at [67]). As to the summary dismissal application in relation to this claim, his Honour noted that the pleading contained no allegation of damage caused by any such tests nor was any expert evidence adduced to describe the nature of such tests or any mode of causation of harm. The primary judge also noted that there was no evidence or submission from Mr Kitoko to the effect that support for these allegations could be found if the matter proceeded to trial (at [67]).
Finally, as to the complaint that Mr Kitoko had been discharged from St George Hospital on 24 March 2021 without information as to his condition, including his low potassium levels, the primary judge again noted that this was directly refuted by the undisputed hospital records (see at [68] of the primary judgment). His Honour said that this was sufficient to dispose of the claim to summary judgment and that it also entitled the respondents to summary dismissal of that claim (at [68]).
The primary judge next turned to Mr Kitoko's application for default judgment (see at [69] of the primary judgment), dismissing that application. His Honour considered that it was clear from the directions made by the District Court Registrar on 13 December 2022 that, while Mr Kitoko was in default in compliance with r 31.36 of the UCPR and while procedural steps were to be undertaken before Mr Kitoko was required to comply with that rule, time for filing a defence did not run against the defendants. His Honour considered that following the transfer of the proceedings to the Supreme Court, the defendants had been entitled to act on the basis that they were not required to file a defence until their application for summary dismissal had been determined.
Finally, as to Mr Kitoko's application to file a further amended statement of claim, his Honour considered the nature of the proposed new allegations and noted that these were all based on allegations of fact that were identical to those in the current statement of claim. His Honour concluded that those existing factual allegations were so incapable of being established at trial that there was no warrant for allowing them to proceed to a final hearing in the usual way; and hence that there was no justification for allowing the proposed amendment (see at [70] of the primary judgment).
Accordingly, his Honour made orders for judgment for the respondents on Mr Kitoko's claims pursuant to r 13.4 of the UCPR (Order 1) and dismissed Mr Kitoko's notices of motion filed on 24 May 2023 and 25 July 2023 (Order 2). His Honour ordered Mr Kitoko to pay the respondents' costs of the proceedings in the District Court and in the Supreme Court including the costs of all notices of motion (Order 3) and made directions for any application for a gross sum costs order (Order 4).
On 20 October 2023, the primary judge made a gross sum costs order in favour of the respondents in the sum of $64,000.
On the basis of the above, Mr Kitoko submits that he has filed and served the respondents with medical expert evidence under r 31.36(1)(a)-(c) and he argues that he was either prohibited or not obliged under r 31.44 of UCPR to file and serve, with the statement of claim commencing the professional negligence claim, other expert opinion under r 31.36(1)(a)-(c) of the UCPR. Rule 31.44 of the UCPR in essence provides that, except by leave of the court, a party to proceedings may not adduce evidence of any other expert on any issue arising in proceedings if a parties' single expert has been engaged under that Division of the UCPR in relation to that issue.
In his draft notice of appeal, Mr Kitoko further contends that the primary judge's exercise of the discretion to consider the medical expert evidence under r 31.36(a)-(c) of the UCPR miscarried in a manner productive of substantial injustice to him. In that regard, Mr Kitoko maintains that the primary judge erred in failing to take into account the "unchallenged expert evidence" in the above opinions (see at [73] of the draft notice of appeal). The errors here identified are a failure to take into consideration, or a deliberate ignorance to consider that "unchallenged expert evidence" and a failure to find that r 31.44 prohibited Mr Kitoko from filing other expert evidence with his statement of claim (those again being said to be errors of the House v The King kind) (see at [77] of the draft notice of appeal).
As to those assertions, r 31.44 of the UCPR is not applicable in circumstances where there has been no single expert appointed in the proceedings; and the proposition that the medical documents referred to above would satisfy the requirements of r 31.36(1)(a)-(c) of the UCPR is untenable. Apart from the fact that none of that documentation would satisfy the requirements of the expert witness code of conduct, it is clear from the description of the documents and their content, as set out in the draft notice of appeal, that they fail to address the matters required by this rule. His Honour did not err in finding that Mr Kitoko was in breach of the requirement to file an expert medical report as required by r 31.36(1)(a)-(c) of the UCPR.
As to the claims of physical and sexual abuse (concerning St George Hospital), in his written submissions at [14] Mr Kitoko points out that he has pleaded res ipsa loquitur in the amended statement of claim. Mr Kitoko says that, in this context, if he sought to tender any of the expert medical specialist reports in evidence pursuant to r 31.36(1) of the UCPR, its probative value is or will be substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time; and hence that this evidence should be excluded, as a whole, in exercise of its discretion under s 135 of the Evidence Act 1995 (NSW). Quite what is meant by that last submission is unclear. In any event, the difficulty with reliance on the res ipsa loquitur principle is that it presumes that there has been injury sustained which could only be explicable by negligence on the part of the relevant respondent(s). That does not assist Mr Kitoko to establish on a summary judgment application that he was physically or sexually assaulted during the surgical procedures.
In his draft notice of appeal (from [80]), Mr Kitoko also takes issue with the proposition that he was obliged pursuant to r 31.36(1) of the UCPR to file any expert medical report, having regard to the orders made on 13 December 2023 which Mr Kitoko seems to suggest amount to an order otherwise than for compliance with r 31.36(1). Mr Kitoko says that r 31.36(1) does not apply of its own force. That proposition cannot be accepted. The requirement to file such a report is imposed under the UCPR and there has been no dispensation from this requirement. The directions made in the District Court were intended to facilitate compliance with that requirement. Mr Kitoko also maintains in this context his complaint that the CCTV footage was not produced by the respondents (which is addressed further below).
Mr Kitoko thus contends that his Honour erred in finding that he had been knowingly in default of the requirement to provide expert medical opinion on issues of causation of damage since at least 13 December 2022 (see [83] of his draft notice of appeal). That contention cannot be accepted. Mr Kitoko has been made aware for some time of the requirement for such a report (and he appeared to acknowledge this in oral submissions before his Honour - see 26/07/23; T 61.30ff to which reference has been made above).
Mr Kitoko then addresses (both in his submissions and his draft notice of appeal) the issues he identifies as remaining for determination in relation to his medical negligence claims (breach, injury and causation), characterising his claim as being that there was a breach of duty by a failure to give him of the risks of the surgery performed (see at [86] of the draft notice of appeal), although elsewhere his complaint appears to be that he was not warned of the risks of low potassium. To that end, Mr Kitoko refers to well-known authorities such as Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58. Mr Kitoko also makes allegations (see [92] of the draft notice of appeal) as to the failure of Dr Fatima (at Canterbury Hospital) to investigate his symptoms more thoroughly in order to achieve a diagnosis. While Mr Kitoko appears to accept that there is a dispute as to what he was (and should have been) told (see [88] of the draft notice of appeal) and complains that he was not given the opportunity to cross-examine the doctors and that the primary judge "failed to form impressions about the weight to give to different aspects" of the evidence (see at [93] of the draft notice of appeal), at the same time Mr Kitoko's summary judgment application seems to be predicated on his medical evidence being unchallenged.
Mr Kitoko then identifies (at [16] of his written submissions) the "only potentially relevant" failure to warn in this case as the failure to warn of "unremitting kidney failure". Mr Kitoko says that, had the proper steps been taken, then the cause of his permanent damage of nerves in his right lower limbs (denervation of muscles) would have been diagnosed earlier and resulted in earlier treatment. Mr Kitoko also complains of permanent damage of tibial ligaments in the right ankle. Mr Kitoko argues that the legal cause of that condition in him "could be" the failure to warn of some risk that did materialise (referring to Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18 at [60]-[61] per Gummow J).
Mr Kitoko lso invokes the "egg-shell skull" rule, arguing that the primary judge erred in law in failing to refer to the "egg-shell rule" (see at [126] of the draft notice of appeal; [17] of the written submissions). Mr Kitoko argues that the respondents are liable for all damage despite the fact that he had a pre-existing susceptibility which caused the damage to be far more severe than would otherwise be the case or an injury that renders him more susceptible to further injury. Thus, Mr Kitoko argues that the respondents cannot use his history (given at Canterbury Hospital on 21 March 2021), acknowledging "intermittent low back pain for 10 years due to nerve compression", as legal excuses to decline or diminish culpability.
Mr Kitoko refers to Wallace v Kam [2012] NSWCA 82 and argues that the primary judge failed to find that he had established that he would not have undergone care and treatment on 21 March 2021 and the proposed surgery on 23 March 2021 and the discharge on 24 March 2023 if warned of unremitting kidney failure, and when the relevant cost to him may have been permanent damage to the nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and the permanent damage of tibial ligaments in the right ankle of the nature, extent and duration of the condition that he says materialised. Mr Kitoko contends that the medical practitioners were or are responsible for failure to warn of a separate risk, where that risk did materialise (see [145] of his draft notice of appeal).
The contention that Mr Kitoko would not have proceeded with care and treatment on 21 March 2021 at Canterbury Hospital had he been given the proper warning (of permanent damage of tibial ligaments or a weakness in his right ankle, and injection into his peroneal nerve) makes no logical sense. His care and treatment on that occasion was as to the abdominal pain with which he presented at the emergency department; and any failure to warn was at the conclusion of that treatment (since Mr Kitoko did not return to that hospital). The contention that Mr Kitoko would not have proceeded with the surgery at St George Hospital had he been given proper warning of the risks of the surgery is one that would need to have been determined at trial and could not have warranted the entry of summary judgment in his favour at the interlocutory stage.
Mr Kitoko contrasts his case with that in Morocz v Marshman [2016] NSWCA 202, saying that he could lead unchallenged evidence at the summary hearing or on appeal which supports the existence of the risks of which he says he should have been (but was not) warned. Mr Kitoko says that the primary judge ignored his submissions in relation to the failure to warn (which he says were principally founded upon his unchallenged evidence and not contradictory to the expert evidence before the primary judge). The reference to unchallenged evidence misconceives the stage at which the proceedings were at the time Mr Kitoko sought summary judgment. It cannot be concluded that the respondents would not have proceeded to challenge Mr Kitoko's evidence at trial. The time for the respondents to file their evidence had not yet arisen.
As to the medical negligence claims based on the alleged failure to warn, Mr Kitoko also complains of an inadequacy of reasons on the part of the primary judge (citing DL v The Queen (2016) 266 CLR 1; [2018] HCA 26 at [32]) (see [94] of the draft notice of appeal). Among other things, Mr Kitoko says that "one is left wondering" about his Honour's path of reasoning in relation to the significance placed by the primary judge on the 21 March 2021 Canterbury hospital discharge report. This complaint as to adequacy of reasons cannot be sustained. His Honour made sufficiently clear the basis on which he determined that summary judgment could not be entered in Mr Kitoko's favour. That Mr Kitoko disagrees with his Honour's conclusion does not demonstrate an inadequacy of reasons; that Mr Kitoko may not understand that reasoning is perhaps explicable by his lack of independent legal advice.
As to the allegations of physical and sexual assaults, in his draft notice of appeal, Mr Kitoko concedes that he is unable to provide "exact dates and exact actions" of the assaults (being unconscious during the procedure), he submits that because physical and sexual abuse events occurred that do not ordinarily occur in the absence of negligence, this shifts the burden of proof to the hospitals to prove the chain of events that demonstrates that they were not negligent (see [154] of the draft notice of appeal which extracts submissions from Mr Kitoko's 28 April 2023 affidavit). (That submission, of course, is premised in terms on events having occurred that Mr Kitoko acknowledges he may not be able to prove.)
Mr Kitoko argues that, even if the respondents provide written defences to the court, there are or there will be no real issues raised by the defence that would require a full hearing; and he maintains that in order to promote efficiency (where he says there are no real issues to be determined), summary judgments should be entered "with caution" under r 13.1 of the UCPR to maintain the objectives established in s 56(1) of the Civil Procedure Act. The submission that any defences that might be filed would raise no "real issues" is mere speculation.
Complaint is also made in the draft notice of appeal as to the "spoliation" of evidence, namely the CCTV footage (see the submissions extracted at [162] of the draft notice of appeal). Those submissions include serious allegations of conspiracy with intent to pervert or defeat the course of justice (see at 162 of the draft notice of appeal); and potential criminal conduct (see at 162), which should not lightly be made and as to which there is no evidentiary foundation.
Finally, in relation to ground 2, in the draft notice of appeal complaint is made as to the primary judge's refusal of an application by Mr Kitoko (if the matter were to proceed to trial) to adduce further evidence (see [163] of the draft notice of appeal). Mr Kitoko has itemised the further evidence he wanted to adduce including "unspecific oral evidence" from one or more unidentified lay witnesses. Mr Kitoko (at [164] of the draft notice of appeal) says that he sought a further one month (not two) to obtain that evidence; and that the primary judge's exercise of discretion not to admit the further evidence miscarried in a manner productive of substantial injustice. The complaint made is that his Honour failed to take into account the "substantial unchallenged evidence" on which Mr Kitoko relied, and that, insofar as his Honour refused the application on the basis of the pleading, Mr Kitoko refers to authorities where an opportunity has been given to amend inadequate pleadings (see at [164]-[167] of the draft notice of appeal). Mr Kitoko asserts that the primary judge failed to afford him procedural fairness in this respect ([168] of the draft notice of appeal).
Mr Kitoko here seeks the entry of summary judgment in his favour for damages in varying sums (ranging from $2,530,335.20 to $13,841,151.10, apparently depending on whether it is accepted that he would otherwise have earnt income as a taxi-driver, neurosurgeon, barrister or academic) as specified in his submissions, plus costs to be assessed (see at [20] of his written submissions dated 7 November 2023).
Leave should be refused in relation to ground 2. It proceeds on a misapprehension of what is required to be established for a summary judgment application. The emphasis placed by Mr Kitoko on his "unchallenged" evidence is misconceived. The respondents have not at this stage been required to file evidence in defence of the claims made against them. Mr Kitoko's own evidence (for example in relation to the hospital records and discharge notes) clearly contradicts his claims that there was no treatment or no advice given as to his potassium levels. Mr Kitoko also misunderstands the need to establish causation and loss. Damage is of course the gist of an action in tort for negligence.
There is, for example, no apparent connection between the asserted failure on 21 March 2021 of doctors at the Canterbury Hospital to warn of any particular risks attaching to Mr Kitoko's condition and the harm allegedly suffered during an operation some two or three days later at another hospital. Nor is there any basis for a suggestion that a delay of some 2-3 days in a failure to warn of low potassium levels (assuming for present purposes that, contrary to the medical notes, there was such a failure) caused any harm to Mr Kitoko.
As to the complaint of wrongful destruction of records, apart from the fact that there is no evidence at all (and indeed evidence to the contrary) that there was any CCTV footage taken during the clinical procedure carried out at St George Hospital, there is no warrant for inferring some deliberate destruction of evidence relating to Mr Kitoko's claims (made well after the time when CCTV footage in public areas would routinely be deleted).
Finally, as to the complaint that his Honour refused the application to adduce further evidence, that is quintessentially a decision attracting the House v The King standard of review and no error is shown in his Honour's exercise of the discretion not to permit Mr Kitoko more time to file "unspecific" evidence from unidentified persons or further evidence from doctors when it is apparent that Mr Kitoko does not understand the nature of the evidence required to be adduced under the UCPR and has had ample time to provide that evidence already.
No arguable case that there was an error in the refusal to grant summary judgment in Mr Kitoko's favour has been identified.
Mr Kitoko argues that, without an arguable defence having been filed and served, it is not in the interests of justice for his claims to be further delayed, nor should he be put to further expense in conducting this litigation. Mr Kitoko invokes s 56(1) of the Civil Procedure Act in this context.
Ground 3 has no prospects of success. Even if there had been a misapprehension of principle or fact in the primary judge's conclusion that the respondents were entitled to regard themselves as not having to file a defence pending the hearing of the summary dismissal application (and we do not suggest that there was any such error), it does not follow that a judge would enter default judgment in circumstances where there was clearly a triable issue for the defence if the respondent(s) indicated an intention to defend the proceedings. Any default judgment so entered would be liable to be set aside. Further, the suggestion that entry of default judgment, while a summary dismissal application was on foot, would be consistent with the principles mandated by s 56 of the Civil Procedure Act cannot be accepted. Leave should be refused in relation to ground 3.
Complaint is again made that there has been no production of CCTV footage (or the doctors' records that were sought). Mr Kitoko argues that in light of the burden the respondents have in establishing that there is no triable issue (citing Wickstead v Browne (1992) 30 NSWLR 1 per Handley and Cripps JJA at 11), his actions should not be dismissed because of gaps in the case if the necessary evidence, including doctors' records and CCTV related to his physical and sexual abuse claims, might be obtained as a result of discovery or interrogatories (see at [347] of the draft notice of appeal).
Mr Kitoko argues that it should not be found that his claims had no reasonable prospects of success given that: there had been no effort from the respondents to provide relevant evidences including doctors' records and CCTV related to the physical and sexual abuse claims; there had been no effort from the respondents to file and serve a reasonable defence on merit; there had been no effort from the respondents to request any further and better particulars of the claim or any amendments to the pleadings; and there had been no opportunity for him to reply on all these points (see [30] of his submissions dated 7 November 2023). Mr Kitoko again maintains that there is uncontested substantial evidence filed by him which may be reasonably believed so as to enable him to succeed at the final hearing (see at [31] of his submissions).
Mr Kitoko thus argues that the respondents' summary dismissal application should itself have been dismissed under r 13.4 of the UCPR as lacking reasonable legal basis or not disclosing a cause of action; or because it is frivolous vexatious, or constitutes otherwise an abuse of process. Similarly, Mr Kitoko seeks in the alternative that the 3 May 2023 notice of motion be struck out under r 14.28 of the UCPR or permanently stayed pursuant to s 67 of the Civil Procedure Act.
Ground 5 also lacks any prospects of success. No error of principle has been identified. His Honour clearly had regard to the applicable tests on such an application; carefully reviewed the material before him; and gave adequate reasons for the conclusions drawn in relation to each of the claims that the claims were doomed to failure.
The respondents, on the other hand, submit that it is clear from the transcript of the hearing before the primary judge that Mr Kitoko was given every opportunity to raise the matters that he wanted to raise, noting that at one point the primary judge asked Mr Kitoko if there was anything further he wanted to say; and they say that the primary judge considered all of the matters raised by Mr Kitoko (26/07/2023; T 66.31). Thus, they contend that there was no bias, apprehension of bias, or denial of procedural fairness.
We have reviewed the transcript of the hearing before the primary judge and have considered carefully the complaints raised by Mr Kitoko. We have concluded that the allegations of actual or apprehended bias and denial of procedural fairness (though not raised as a separate ground of appeal) have no reasonable foundation.
As a general observation, allegations of bias or procedural unfairness, should ordinarily be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts, as otherwise the right to do so may be waived (see Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 (Vakauta) at 572 in the joint judgment of Brennan, Deane and Gaudron JJ; and at 587 per Toohey J; and see Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 in the joint judgment of Gleeson CJ, Heydon and Crennan JJ at [43] with whom Gummow and Hayne J agreed at [61]). Those observations were referred to recently in this Court in State of New South Wales v Madden [2024] NSWCA 40 as being familiar and uncontroversial (see Leeming JA at [214]).
That said, those observations were made in the context of proceedings where (unlike here) the person alleging bias had had the benefit of legal representation. Moreover, as Basten JA observed in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 (at [30]-[34]), the issue of waiver by reason of a failure not to object during the course of the hearing becomes more complicated when there is not a single point at which the issue of bias clearly arose.
Therefore, in the present case, the fact that complaint was not directly raised during the hearing is not determinative of the issue.
Turning then to the question of actual bias, it is useful to note the observations of Dixon CJ and Williams, Webb and Fullagar JJ in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; [1953] HCA 12, adopted in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 261 (per Barwick CJ, Gibbs, Stephen and Mason JJ); [1976] HCA 39, as to the need, where actual bias other than that arising through interest is alleged:
But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J., Reg. v. London County Council; Ex parte Empire Theatre [(1894) 71 L.T. 638 at 639]
Actual bias is that which infringes "the basic principle of procedural fairness that a tribunal called upon to act judicially must approach a claim before it without prejudgment and with a mind open to a fair consideration of submissions made to it" (see Mohareb v Kelso (No 2) [2018] NSWCA 246 at [5] per Basten JA and Sackville AJA; Ebner at [3]-[6] per Gleeson CJ, McHugh, Gummow and Hayne JJ)".
There is nothing in the present case to support the assertion of pre-judgment. It is clear from the transcript that the primary judge was questioning both the respondents' counsel and Mr Kitoko in order to come to a clear understanding of the applications being made and the basis on which those applications were being made. The fact that the judgment was handed down ten days after the hearing does not give rise to any inference of pre-judgment. The complaint as to actual bias is not made good.
As to the allegation of apprehended bias, the test in Ebner, as Mr Kitoko's submissions acknowledge, is a "double might test": that being whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The application of this "double might" test requires: first, identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits (see Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ, as confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ). Those principles were considered by the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; and applied recently in this Court in Clarke v Health Care Complaints Commission (Recusal Application) [2024] NSWCA 16 per White JA (see at [23]-[24], with whom Mitchelmore and Kirk JJA agreed).
All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform himself or herself before reasonably forming any firm apprehension) will be taken into account (see Vakauta at 584-585 per Toohey J (with whom Brennan, Deane and Gaudron JJ agreed); Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Clarke JA).
In the present case, the matter which Mr Kitoko identifies as giving rise to the apprehension of bias is, in essence, the conduct of the hearing: namely, that the respondents' counsel had the lion's share of the oral submissions (speaking first and, he says, for most of the time) and the less specific complaint of intimidation and bullying. There can be no reasonable apprehension of bias arising from the fact that the primary judge dealt first with the submissions in support of the summary dismissal application before turning to the submissions in relation to Mr Kitoko's applications. Apart from the fact that the order of submissions was a matter within the primary judge's discretion as a matter of case management, there is obvious merit in the broad spectrum of issues in relation to the pleading being explained to the judge before the judge turns to the respective submissions. Moreover, a large part of the submissions in the morning dealt with the background to the matter (largely not disputed) and the evidentiary objections (generally determined in a pragmatic way by his Honour and not in a way that showed any partiality to the respondents).
A careful review of the transcript shows that the primary judge sought Mr Kitoko's response during the morning on a number of points and invited submissions from him in the afternoon on his applications. There is nothing on the transcript to support the assertion of intimidation or bullying. Robust questioning, or even deprecatory comments about the pleading, does not amount to intimidation or bullying; nor does it indicate pre-judgment or apprehended bias. There is nothing in the transcript that in our opinion might lead a reasonable and fair minded observer to apprehend that the primary judge might not determine the applications before him in an impartial and unbiased way. The complaint as to apprehended bias is not made good.
Finally, as to the procedural fairness complaint, to the extent that it relates to the conduct of the hearing, that is dealt with above. As to the assertion that the primary judge did not consider the material before him, that is belied by his Honour's reasons and the questioning during the hearing. The other complaints of procedural unfairness (for example in not permitting Mr Kitoko an opportunity to adduce further evidence) have been considered above. Moreover, Mr Kitoko has failed to address the deficiencies in the pleaded claims to which his Honour pointed.