Kitoko v Sydney Local Health District [2025] FCA 914

[2]Kitoko v Sydney Local Health District [2025] FCA 914 | Case summary | Zoe

[56]

Mr Kitoko's claims against the respondents are pleaded in a document styled as the "First Amended Statement of Claim" filed on 10 December 2024 (FASOC). And, the relief that he seeks is set out in the Originating Application filed on 11 November 2024. As explained further below, Mr Kitoko claims that the respondents variously breached their respective duties of care owed to him, fiduciary duties, and contractual obligations. Mr Kitoko also claims that the respondents engaged in misleading and deceptive conduct, unconscionable conduct, and also acted in concert in a conspiracy to injure him.
In essence, the respondents submit that the proceedings that have been instituted against them by Mr Kitoko should be dismissed on the ground of issue estoppel, Anshun estoppel or as an abuse of process. The respondents say that the claims made by Mr Kitoko in the FASOC are the same or similar to those that they have already successfully resisted in proceedings before the Supreme Court of New South Wales. The respondents submit that in these circumstances it would be oppressive and unfair for them to be met with the same or similar allegations.
Alternatively, or additionally, the respondents submit that the proceedings should be dismissed as the claims pleaded in the FASOC have no reasonable prospects of success and/or are of such a nature that they should be struck out without leave to re-plead.
It is necessary for me to observe at the outset that Mr Kitoko was self-represented. In view of this, I provided him with an opportunity to file written submissions which were of greater page length than those I ordered to be filed by the respondents. Mr Kitoko appeared in person at the hearing before me. At the conclusion of that hearing, I provided him with an opportunity to file and serve supplementary submissions in the event that there were any other matters he wished to address arising from the oral submissions made on behalf of the respondents. Mr Kitoko took up that opportunity.
Further, following the adjournment of the hearing with judgment being reserved and after considering the parties' supplementary submissions, I considered there was insufficient attention given to particular matters. As such, I directed that the parties file and serve further submissions as to (a) issues arising from the judgment in UBS AG v Tyne [2018] HCA 45; 265 CLR 77, and (b) whether Mr Kitoko had properly understood and responded to the respondents' contentions that the proceedings should be dismissed under s 31A of the FCA Act or should otherwise be struck out without leave to re-plead even if I was not satisfied that the Respondents had established an issue estoppel, Anshun estoppel or an abuse of process. In taking this course, I very much had in mind, and was conscious of, the fact that Mr Kitoko was self-represented and should have the opportunity to be informed of the points being raised against him and thereby have a further opportunity to make submissions.
It is also necessary to observe that the respondents' application was heard together with separate but related proceedings (NSD 1043 of 2024) by which Mr Kitoko sought an extension of time to apply for leave to appeal from the judgment in Kitoko v University of Technology Sydney [2021] FCA 360 (Griffiths J).
For the reasons that follow, I have determined that the present proceedings should be summarily dismissed and that Mr Kitoko should pay the respondents' costs as agreed or taxed.

[74]

PARTICULARS

At any material times the Plaintiff was admitted at George Public Hospital, around or on 23 March 2021 between early morning to early afternoon, but prior to the surgery,

The fifth Defendant was a Junior Medical Officers in charge of treating the Plaintiff in the Department of Urology at St George Public Hospital-NSW.

In five different occasions, the fifth Defendant asked the Plaintiff to confirm if is he a Biomedical Engineering Researcher from the UTS? In all five different occasions, the Plaintiff said: yes, I am.

In that, while SESLHD or David knew or ought to have known that the Plaintiff was suffering with significant low level of potassium (Weakness in muscles), around or on 23 March 2021 late afternoon, the Plaintiff was taken to the surgery theatre. While the Plaintiff was sleep and completely unconscious under general anaesthesia, procedures including rigid Cystoscopy at 30 degree, right Ureteroscopy and insertion of right ureteric stent has been consciously and voluntarily or deliberately authorized and performed by David and/or SESLHD employees, agents or consultants.

following this procedure, at any material times, around or on 24 March 2021 at early afternoon, while the Plaintiff was eating his lunch and his wife was visiting him, the fifth Defendant had visited the Plaintiff and had obliged the Plaintiff to stop eating lunch. The Plaintiff had abandoned his lunch and the fifth Defendant had performed several Neuro-Physio Tests linked to the movements of muscle in the face, in hands and in the feet. These tests took around one (1) hour, but Dr. David failed to explain to the plaintiff information at a level the Plaintiff could understand the purpose of performing these tests in urgence.

following these tests, at any material times, around or 24 March 2021 late afternoon, the Plaintiff was deliberately discharged by David, without giving information to the plaintiff about his conditions, regarding, a significant low level of potassium condition (3.4 mmol/L);

at all material times, around or after 24 March 2021 at the evening, the Plaintiff noted pain bilaterally in his lower limb right;

At all material times, around or on 28 March 2021, the Plaintiff presented at ED at St George Public Hospital. He has been treated with moderate pain bilaterally in his lower limb right and then discharged;

At all material times, around or on 30 March 2021, the Plaintiff's pain worsened. The Plaintiff presented at ED at St George Public Hospital. He has been admitted and treated with severe pain in his lower limbs acutely worsened on the right-hand side, worse on weight-bearing and dorsi-flexion, and then discharged on 31 March 2021 in the late morning;

SESLHD's or David's deliberate and reckless disregard for the safety and reasonable treatment of the Plaintiff caused an unusual event that subsequently caused injury to the Plaintiff.

PARTICULARS

(a) a medical report confirmed that, at all material times around or on 24 March 2021, the Plaintiff was suffering with low level of potassium (3.4 mmol/L that caused weakness in muscle).

(b) a medical report dated 24 March 2021 had confirmed that, at all material times, around or on 23 March 2021, while the Plaintiff was sleep and completely unconscious under general anaesthesia anaesthetics, procedures including rigid Cystoscopy at 30-degree, right Ureteroscopy and insertion of right ureteric stent has been consciously and voluntarily or deliberately authorized and performed by David and/or SESLHD employees, agents or consultants.

(c) as, at all material times, around or on 23 March 2021, the plaintiff weighted around one-hundred kilograms (100 kgs), a medical report dated 24 March 2021 had confirmed that, David and/or SESLHD's employers, agents or consultants was or were unable to advance sensor-wise due to angle of ureter at 30 degree and the impact of plaintiff's weight (100kgs). The report confirmed:

(i) attempt with slippery wire unsuccessful initially.

(ii) attempt with distal ureteroscope unsuccessful.

(iii) ultimately able to pass angled tip slippery wire cachet renal pelvis

[75]

The effect of these pleadings and particulars were that Mr Kitoko claimed that he presented at the Emergency Department of St George Hospital on 22 March 2021 suffering severe abdominal right flank pain and kidney failure and that he was there subjected to various other forms of retributive conduct and injury.
Paragraph 8 of the SC ASOC pleaded that SESLHD (or its employees, contractors or consultants) in concert with the Hon. Julie Owens MP, Mirvac and/or UTS and others whose names were unknown to Mr Kitoko "purported to discipline" him.
Paragraph 9 of the SC ASOC pleaded that the fifth defendant and/or SESLHD (or its employees, contractors or consultants) "physically and sexually assaulted [Mr Kitoko] on numerous occasions". Lengthy particulars were provided which, in effect, described actions alleged to have been carried out towards him while under general anaesthetic on 23 March 2021.
The SC ASOC at [10] specifically pleaded that "injury or harm" was caused to Mr Kitoko by SLHD's and SESLHD's negligence (or that of their employees, contractors of consultants) directly or indirectly in concert with the Hon. Julie Owens MP, Mirvac and/or UTS and others whose names were unknown to him.
The SC ASOC at [11]-[17] and at [26]-[27] set out the basis upon which Mr Kitoko claimed that SLHD and SESLHD respectively owed him duties of care. At [21] of the SC ASOC, Mr Kitoko pleaded that SLHD and SESLHD (or their employees, contractors or consultants) breached their respective duties of care. And, at [22] it was again pleaded that the injury or harm was caused by them acting directly or indirectly with the Hon. Julie Owens MP, Mirvac and/or UTS and others whose names were unknown to him.
The SC ASOC at [24]-[25] contained pleadings to the effect that Mr Kitoko's discharge from the Emergency Department of Canterbury Hospital was deliberately done, and was done in circumstances where Mr Kitoko was not provided with information or treatment, such that it would "cause or allow death or serious injury to [Mr Kitoko], and damage to" his kidney functions, muscles and occasion sudden shock.
Mr Kitoko again pleaded at SC ASOC [28] that SLHD and SESLHD (or their employees, contractors or consultants) breached their respective duties of care, but set out the following "Particulars of Breach of Duties":

[76]

SLHD Failures

failure to take reasonable care to its patient, the Plaintiff;

failure to provide a safe and supportive environment on its premises for the Plaintiff as patient and the Plaintiff's family member;

failure, by its servants, agents and/or contractors, to act reasonably with care, skill and diligence to diagnose/examine the Plaintiff's health conditions, regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (3.1 mmol/L, that caused weakness in the plaintiff's body muscles);

the Plaintiff's significant symptoms being overlooked or dismissed by the first Defendant, the second Defendant and/or the third Defendant:

(a) regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (Weakness in muscle);

(b) for the purpose of identifying any faulty, defective, deteriorated in kidney failure (around 32% of functioning) kidney stone issue, and low level of potassium (Weakness in muscle).

failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to ensure that the prescribed medication given to the Plaintiff for the purpose of treating kidney failure (around 32% of functioning), and/or low level of potassium (Weakness in muscle) was at all times reasonably correct or suitable as a reference guide;

failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to advise or warn the Plaintiff being a patient of material risks associated with, or the risk regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), low level of potassium (Weakness in muscle), and/or prescribing or giving the patient wrong medication for the purpose of treating kidney failure, and/or low level of potassium.

failure, by its servants, agents and/or contractors, to take reasonable steps to ensure that the information given to the Plaintiff being a patient about the Plaintiff's health conditions, regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), and/or low level of potassium (Weakness in muscle) was at all times reasonably correct or suitable;

failure to advise or warn the Plaintiff being a patient of material risks associated with, or the risk regarding the existence of, or the risk of existence of, deliberate Plaintiff's discharge from ED of the Canterbury Hospital without the information and without the treatment be given to the Plaintiff:

(a) regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (Weakness in muscle);

(b) for the purpose of identifying any faulty, defective, deteriorated in kidney failure (around 32% of functioning), kidney stone issue, and low level of potassium (Weakness in muscle).

alternatively, to (v), failure to take reasonable steps to ensure its servants, agents and/or contractors exercised due skill, care and diligence in carrying out the deliberate Plaintiff's discharge from ED of the Canterbury Hospital on 21 March 2021. SESLHD Failures

failure to take reasonable care to its patient, the Plaintiff;

failure to provide a safe and supportive environment on its premises for the Plaintiff as patient and the Plaintiff's family member;

failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to keep and/or any proper lookout:

(a) regarding the existence of, or the risk of existence of, level of potassium (Weakness in muscle);

(b) for the purpose of identifying any faulty, defective, deteriorated in low level of potassium (Weakness in muscle).

the Plaintiff's significant symptoms being overlooked or dismissed by its servants, agents and/or contractors:

(a) regarding the existence of, or the risk of existence of, level of potassium (Weakness in muscle);

(b) for the purpose of identifying any faulty, defective, deteriorated in low level of potassium (Weakness in muscle).

failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to keep the Cystoscopy procedure under any or any proper control;

failure, by its servants, agents and/or contractors, to take reasonable steps to advise or warn the Plaintiff about the procedure's risk, or failure, by its servants, agents and/or contractors, to take reasonable steps to advise or warn the Plaintiff of material risks of physical injury inherent in a Cystoscopy procedure.

failure, by its servants, agents and/or contractors, to advise or warn the Plaintiff being a patient of material risks associated with, or the risk regarding the existence of, or the risk of existence of, deliberate Plaintiff's discharge from the Urology Department of the St George Public Hospital without the information and without the treatment be given to the Plaintiff, regarding the existence of, or the risk of existence of low level of potassium (Weakness in muscle);

Failure to devise and maintain a suitable system of ensuring that its servants and/or agents, including the fifth defendant, were suitable for the purpose of being entrusted with the care of patients with material risks associated with, or the risk regarding the existence of, or the risk of existence of low level of potassium (Weakness in muscle);

Physically and sexually assaulting the plaintiff through its servants and/or agents. including the fifth defendant.

Failure to warn, train or instruct its employees servants and/or agents, including the fifth defendant of the risks and dangers of patient sexual abuse.

Failure to institute and maintain a system of training and in-service programs for its servants and/or agents, including the first defendant so as to avoid the risks of patient sexual abuse.

Failure through its servants and/or agents, including the fifth defendant, to report the assaults to the police.

Failure to explain to the Plaintiff information at a level the Plaintiff could understand the purpose the fifth Defendant had imposed the Plaintiff to abandon his lunch and then he had performed several Neuro-Physio Tests in urgence. These tests took around one (1) hour, and were linked to the movements of muscle in the face, in hands and in the feet.

Discharging the plaintiff from the Urology Department at St George Public Hospital when it knew or ought to have known through its servants and/or agents including the fifth defendant that the plaintiff required guidance and counselling for reasons due to the physical and sexual assaults.

Discharging the plaintiff from the Urology Department at St George Public Hospital so as to avoid the risk that the plaintiff might noted pain bilaterally in his lower limb right connected with the fifth defendant and others had assaulted him.

Allowing the fifth defendant and/or others to provide care and treatment, or continue to provide care and treatment, at the Urology Department at St George Public Hospital without ensuring that he was not, or they were not likely to abuse patients.

[81]

In the SC Proceedings, the defendants applied for summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the grounds that they were incapable of being substantiated by evidence, they were frivolous, vexatious and an abuse of process. Alternatively, the defendants sought an order that the SC ASOC be struck out pursuant to r 14.28 of the UCPR, or an order that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) on the basis that it was an abuse of process.
Mr Kitoko also filed his own applications in the SC Proceedings. First, he applied for, amongst other things, entry of judgment under r 13.1 of the UCPR and for damages to be assessed or, alternatively, entry of default judgment on the ground that no defences had been filed. Second, Mr Kitoko applied for leave to file a further amended statement of claim to plead allegations of misleading and deceptive conduct, unconscionable conduct, breaches of fiduciary duty and breaches of contractual obligations: SCJ [70].
Fagan J summarised the relevant background and the earlier proceedings that Mr Kitoko had brought against various parties, including SLHD at SCJ [7]-[21]. In doing so, his Honour observed that Mr Kitoko had previously brought claims of conspiracy as against various parties including Mirvac, UTS and others and that Griffiths J had dismissed those claims in Kitoko v University of Technology Sydney [2021] FCA 360.
His Honour then set out the various claims that Mr Kitoko had pleaded in the SC ASOC at SCJ [22]-[31]. After identifying the applicable legal principles at SCJ [32]-[34], Fagan J then considered Mr Kitoko's evidence at SCJ [35]-[38] (which included seven affidavits that had been filed and served by him) and observed at SCJ [39]-[45] that Mr Kitoko had failed to comply with r 31.36 of the UCPR which requires the service of an expert's report in a professional negligence claim supporting beach of duty of care, the general nature and extent of damage alleged, and the causal relationship between the breach of duty and the damage. Fagan J then considered the evidence that had been served by the defendants at SCJ [46]-[52] which included the medical and other records relating to the treatment that Mr Kitoko had received at each of the Canterbury and St George Hospitals.
Next, Fagan J considered each of the claims advanced by Mr Kitoko in the SC ASOC and concluded that they should be dismissed.
As to the conspiracy claims pleaded in the SC ASOC at [5]-[6], Fagan J set out at SCJ [53] the essential elements of an actionable conspiracy at law including that (a) there must be an agreement between two or more persons, (b) the agreement being to carry out some act or acts with a predominant intent of injuring the plaintiff's economic interests (if the agreed means are otherwise lawful), or to carry out some act or acts directed at the plaintiff that are unlawful and that foreseeably (at least) will cause damage, (c) that such an agreement is executed in whole or in part, and (d) the acts in furtherance of which cause some pecuniary loss to the plaintiff.
Fagan J reasoned at SCJ [54] that Mr Kitoko had neither pleaded all the necessary elements of the conspiracy nor adduced evidence upon which judgment could be entered in his favour. On the other hand, Fagan J reasoned at SCJ [55] that the conspiracy claim should be summarily dismissed because of the insufficiency of the pleading and also because the records tendered into evidence by the defendants (which were not refuted by Mr Kitoko) contradicted Mr Kitoko's claims. Specifically, his Honour stated at SCJ [55]:

[84]

The defendant has established that this claim is fore doomed and should be summarily dismissed. First, it is incomplete at the pleading level, with respect to causation of injury or damage. Secondly, the undisputed Canterbury Hospital records show that on discharge the plaintiff and, more importantly, his GP 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 any other concerns". The records of his subsequent treatment at St George Hospital were also not challenged on the hearing of the notices of motion. Nor was the Court informed of any basis upon which the veracity of those records could be disputed at trial.

The plaintiff himself tendered and relied upon parts of the Canterbury Hospital records. They, together with Dr McInerney's radiological report, which was obtained independently of the hospitals, show that subsequent diagnosis and treatment of the plaintiff's renal disorder was not adversely affected by his discharge from Canterbury Hospital on 21 March 2021 or, in particular by the absence of any specific advice at that time regarding his low blood potassium level. Specific advice on that subject was given when he was seen at St George Hospital only three days later: see the summary of that hospital's records of 24 March 2021 at [48] above. The records of the plaintiff's successful treatment at St George Hospital are inconsistent with any suggestion that some detriment to the plaintiff's health was occasioned by a delay from 21 March to 24 March in advising him to eat potassium-rich foods. As earlier stated, no such suggestion has been pleaded.

The defendants are entitled to summary dismissal of the plaintiff's claims concerning medical negligence of the first, second and third defendants at the Canterbury Hospital and the plaintiff's claim to summary judgment in respect of that matter will be dismissed.

[86]

(a) the assertion in the SC ASOC that Mr Kitoko "relies on the incoming report from the Police" to establish that assaults, including sexual assaults, were committed upon him was contradicted by evidence that was adduced by the defendants that although Mr Kitoko made a complaint to police at Kogarah station, "the responsible officers have reported finding no evidence to support the claims and they have closed their investigation": SCJ [62];

(b) the claim that "the defendants 'abusively sprained the plaintiff's right lower limb and right foot' and 'injected the plaintiff's peroneal nerve [...] with unknown substance infected with Hepatitis‐B' were unsupported". Fagan J found that the uncontested hospital records and evidence of medical investigations conducted outside the hospital system "at the plaintiff's request, affirmatively show that dysfunction in his right lower limb, impairment of the peroneal nerve in that limb and the plaintiff's hepatitis B infection are causally unrelated to treatment in the fourth defendant's hospital": SCJ [63];

(c) the claim of "abusive" injury to Mr Kitoko's right leg and foot was "contradicted by an MRI study performed on 9 June 2021 by Dr Robertson of Castlereagh Imaging at the request of Mr Kitoko's General Practitioner, Dr Chang": SCJ [64]. The findings which Dr Robertson reported to Dr Chang accorded with the history Mr Kitoko had given at Canterbury Hospital on 21 March 2021 acknowledging "intermittent low back pain for 10 years due to nerve compression" and disclosing his regular consultations with a neurosurgeon at Westmead: SCJ [65]. Further, Mr Kitoko had not tendered any medical opinion to contradict Dr Robertson's findings and had not served any reports demonstrating that the injury to his right leg was caused by a battery committed at St George Hospital (which should have been served with his statement of claim under r 31.36 of the UCPR) or in support of his application for summary judgment, and there was no suggestion that he would be able to adduce such evidence if the matter should proceed to trial: SCJ [65];

(d) as to the claim that Mr Kitoko was injected with the Hepatitis B virus during the urological procedure at St George Hospital on 23 March 2021, Fagan J pointed out that Dr Chauhan's clinical notes record that Mr Kitoko supplied a blood sample on 22 March 2021 at 10:46 am before his admission to the hospital at 6:06 pm that day: SCJ [66]. Fagan J noted that Hepatitis serology was carried out on the sample and Hepatitis B surface antigen and core antibody were detected "indicating extant infection": SCJ [66]. Fagan J further observed that this evidence was annexed to one of Mr Kitoko's affidavits and showed that he would be unable to prove that Hepatitis B infection "was initiated by anything done in the hospital" and there was "no expert medical evidence to indicate that he could have been adversely affected given that he already had the disease": SCJ [66]. Fagan J reasoned that this was a deficiency that could not be overcome at trial, which 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 eyewitness evidence of the alleged event": SCJ [66];

(e) there was no evidence to support the claim that "several Neuro‐Physio tests" were performed on Mr Kitoko on the afternoon of 24 March 2021: SCJ [67]. Further, Fagan J reasoned that the pleading contained no allegation of damage caused by these tests, if they occurred, and there was no expert evidence to describe the nature of such tests or any mode of causation of harm: SCJ [67]; and

(f) finally, Mr Kitoko's claim that he was discharged from St George Hospital on the afternoon of 24 March 2021 without information as to his condition, particularly his low potassium level, was "directly refuted by the undisputed hospital record[s]": SCJ [68].

[108]

Paragraph 27 of the FASOC contains particulars to the breach of duties which refer to SLHD's alleged failures and those of SESLHD. These particulars are near identical to those contained in the SC ASOC at [28] as set out above (at [32]). There then followed additional pleadings at FASOC [28]-[35] that appear to plead further failures said to be referrable to SESLHD failing to take any, or any effective, measures to prevent Mr Kitoko from suffering physical and sexual assaults and asserting vicarious liability, as follows (which are near identical to those in the SC ASOC as set out at [33]-[35]):
1. Further, by SESLHD's conduct in failing to take any or any effective measures to prevent the SESLHD's and/or of their servants, agents and/or contractors, including the Fifth defendant (David) from physically and sexually assaulting the plaintiff and allowing him to act as a Patient's Specialist Doctor, the Third defendant (SESLHD) knowingly or negligently empowered the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors providing them with the opportunity to assault the plaintiff and created or materially increased the risks to which the plaintiff was exposed.
2. Further, by SESLHD's conduct in failing to take any or any effective measures to prevent the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors including the Fifth defendant from the physically and sexually assaulting the plaintiff and allowing him to act as a Patient's Specialist Doctor, the Third defendant (SESLHD) has represented to the plaintiff and other patients that the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors including the Fifth defendant were fit and proper persons to assume the care and responsibility for the plaintiff's care including his treatment from the Urology Department at St George Public Hospital.
3. By making the representations referred to above, the Fourth defendant (SESLHD) has brought the conduct of the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors including the Fifth defendant within the course of their employment with the Third defendant (SESLHD) and is estopped from denying that their conduct was not within the course of their employment with the Fourth defendant (SESLHD).
4. Further, by SESLHD's conduct in failing to take any or any effective measures to prevent the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors including the Fifth defendant from physically and sexually assaulting the plaintiff, the Fourth defendant (SESLHD) has authorised the acts of the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors.
5. Further, by SESLHD's conduct in failing to take any or any effective measures to prevent the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors including the Fifth defendant (David) from physically and sexually assaulting the plaintiff and in making the representations referred to above and allowing him to act as a Patient's Specialist Doctor, the Fourth defendant (SESLHD) knowingly or negligently impliedly or expressly authorised the assaults of the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors.
6. Further, the acts of the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors including the Fifth defendant, were part of a course of conduct which occurred at the Urology Department at St George Public Hospital and during authorised excursions whilst the Fourth defendant (SESLHD) and SESLHD's servants, agents and/or contractors including the Fifth defendant (David) assumed responsibility for the care and the treatment of the plaintiff on behalf of the Fourth defendant (SESLHD) and were closely connected to the Fourth defendant's (SESLHD's) enterprise in managing the St George Public Hospital and the course of employment of the Fifth defendant (David) and other SESLHD's servants, agents and/or contractors who assaulted the plaintiff.
7. Further, the First Defendant is vicariously liable for the conduct of Dr Teresa and Dr Fatima as their employee:

[114]

(a) by the conduct pleaded in the FASOC at [6] and particularised at (iii) and (iv), each of SLHD, Ms Anderson and Ms Pioquinto engaged in conduct that was (a) false or misleading in "contravention of section 53(a) of the TPA and/or section 29(1)(a) of the Australian Consumer Law (ACL)" and "misleading or deceptive, or likely to mislead or deceive, in contravention of section 52 of the TPA and/or section 18 of the ACL";

(b) the representations made by Ms Pioquinto (as authorised by SLHD and under the direction of Ms Anderson) on 21 March 2021 that "after all tests carried on, nothing wrong of concern could be found and the third Respondent (Fatima) advised the Applicant to go home and to return to the Canterbury Hospital only if fever, worsening, or any other concerns, which were untrue, inaccurate, or misleading..." were inconsistent with a "medical report" which "confirmed that the Applicant was suffering with severe abdominal right flank pain...[and]... was diagnosed with his kidney failure (around 32% of functioning) and also low level of potassium (3.3 mmol/L that caused weakness in muscle)." It was further pleaded that these representations were inconsistent with various obligations under the Health Services Act 1997 (NSW) and the NSW Health Code of Conduct;

(c) the representations are said to have been fraudulently misleading as they were "Knowingly, recklessly or careless that [they were] was not true or false, and knowingly, recklessly or careless that will cause the loss to the Applicant";

(d) it is further pleaded that Mr Kitoko had a reasonable expectation that if certain matters did not exist or were not true that these facts would be disclosed and the relevant failures to disclose these matters gave rise to "Misleading Conduct by Silence"; and

(e) Mr Kitoko relied upon the alleged misleading conduct, the alleged misleading conduct by silence and the alleged fraudulently misleading conduct in being discharged from Canterbury Hospital without information and without treatment being given by SLHD, Ms Anderson and/or Ms Pioquinto.

[119]

(a) SLHD, Ms Anderson and Ms Pioquinto "knew, or ought to have known" of the matters pleaded in "paragraphs 6 and 28(A) above" and, by reason of those matters, "knew, or ought to have known, that the care and treatment and also the advice provided to the Applicant from emergency department (ED) of Canterbury Public Hospital" that he was not safe to be discharged and/or if discharged would be exposed to the "...unnecessary danger and harm attributable to his kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (3.1 mmol/L, that caused weakness in the Applicant's body muscles)": FASOC at [46]. The particulars to this pleading repeat the essence of those set out in the FASOC at [6];

(b) SLHD, Ms Anderson and Ms Pioquinto "knew, or ought to have known" of the matters in "paragraphs 6, 7, 8, 9 and 28(A) above and, by reason of those matters, knew, or ought to have known, that the level of potassium of the Applicant (3.1 mmol/L)" was "not safe to carry-out a Cystoscopy procedure, including rigid Cystoscopy at 30 degree, right Ureteroscopy and insertion of right ureteric stent rigid, from Urology Department (UD) of St George Public Hospital" and, if carried out, would expose Mr Kitoko to "unnecessary danger and harm attributable to permanent damage of nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and damage of tibial ligaments in the right ankle". The particulars to this pleading repeat the essence of those set out in the FASOC at [7];

(c) SLHD, Ms Anderson and Ms Pioquinto "knew, or ought to have known" of the matters in "paragraphs 7(x)(c) and 7(x)(d), 8 and 9 above and, by reason of those matters, knew, or ought to have known, that, at all material times, around or on 23 March 2021, while the Applicant was [a]sleep and completely unconscious under general anaesthesia for the purpose of Cystoscopy procedures the fourth and/or the fifth respondents damaged the Applicant's tibial ligaments in the right ankle, caused by an abusive spraining of Applicant's right lower limb, and also knew that the fourth and/or the fifth respondents had injected the Applicant's Peroneal Nerve into right lower limb level with unknow[n] substance infected with Hepatitis-B that damaged permanently nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and then caused the Applicant to be suffering with Hepatitis-B";

(d) at these relevant times, "consumers in SLHD, in SESLHD, in NSW and then in Australia were unaware of, and had no means of knowing, the matters which the Respondents knew or ought to have known as alleged and accordingly were in a weaker position (or were in the situation of special disadvantage) than the Respondents" and this "weaker position or the situation of special disadvantage in which the Applicant was placed was the outcome of his reliance on the Defendants' representations";

(e) as a result, this conduct was unconscionable conduct, and was engaged in by the Respondents, "...in the course of business, and in trade or commerce in contravention of s 51AA of the Trade Practices Act (TPA)" and/or "unconscionable conduct, engaged by the Respondents, in the course of business, and in trade or commerce in contravention of s 20(1) of the Australian Consumer Law (ACL)";

(f) further, SLHD, Ms Anderson and Ms Pioquinto engaged in "Additional Unconscionable conduct" by reason of their "Misleading Conduct, the Misleading Conduct by Silence, and/or the Misleading Representations"; and

(g) had the respondents not engaged in this conduct, Mr Kitoko would not have been injected in his "Peroneal Nerve into right lower limb level with unknow[n] substance infected with Hepatitis-B, the Applicant would not have been caused a permanent damage of nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and damage of tibial ligaments in the right ankle, caused by an abusive spraining of Applicant's right lower limb and right foot during procedures including rigid Cystoscopy at 30 degree, right Ureteroscopy and insertion of right ureteric stent rigid" or, alternatively, would not have been "exposed to the unnecessary danger and harm attributable to permanent damage or loss of his health conditions".

[127]

PARTICULARS

A. At all material of times, around in or between:

1 October 2010 to 31 December 2014; or alternatively

1 January 2015 to 7 August 2015; or alternatively

8 August 2015 to 12 May 2017; or alternatively

13 May 2017 to 21 March 2021; or alternatively

22 March 2021 to 24 March 2021; or alternatively

VI. After 24 March 2021

the Applicant had sued and/or continue suing the University of Technology Sydney (UTS), Mirvac Real Estate (Mirvac's Network), Sydney Local Health District (SLHD), Community Migrant Resources Centre - Parramatta (CMRC), Federal Member for Parramatta (Hon. Julie), and State (Crown) of NSW, at the NSW District court, the NSW Anti-Discrimination Board, the NSW Supreme Court, the Federal Circuit Court, and/or the Federal Court of Australia.

any material times, around or between 22 March 2021 and 24 March 2021, while the Applicant was admitted at [St] George Public Hospital, SLHD or Teresa in concert with UTS, Hon. Julie, Mirvac's Network and/or others whose names are unknown to the Applicant induced, intimidated and/or coerced SESLHD's employer, agent or consultant or [Mr Qui] to injuring or harming the Applicant as retribution.

at any material times the Applicant was admitted at [St] George Public Hospital, around or on 23 March 2021 between early morning to early afternoon, but prior to the surgery, [Mr Qui] was a Junior Medical Officers in charge of treating the Applicant in the Department of Urology at St George Public Hospital-NSW. In five different occasions, the fifth Respondent asked the Applicant to confirm if is he a Biomedical Engineering Researcher from the UTS? In all five different occasions, the Applicant said: yes, I am.

(ii) failing to warn or advise the Applicant about the possible consequences of sending the correspondence or passing the information to [SESLHD and/or Mr Qui], or receiving such information from the [SLHD, Ms Anderson and/or Ms Pioquinto], in terms of the potential harm or injury of the Applicant's body as retributions, including the Applicant was diagnosed with his kidney failure (around 32% of functioning) and also significant low level of potassium (3.2 mmol/L that caused weakness in muscle) and with kidney stone issue. The Applicant's right lower limb and right foot were abusively sprained. The Applicant's Peroneal Nerve into right lower limb level was injected with unknow substance infected with Hepatitis-B.

[133]

The final sections of the FASOC plead a claim for damages, aggravated and exemplary damages and set out "common questions". Paragraphs 70 to 77 as to the claimed damages plead as follows:
1. As a result of breach of fiduciary obligations by [Ms Pioquinto and Mr Qui], the Applicant is entitled to equitable remedy (as well as discretionary remedies under section 237 of the ACL to compensate the Applicant for loss or damage sustained.
2. As a result of breach of contract due to breach of duties of care, and breach of fiduciary obligation, the Applicant is entitled to general damages for its pain, suffering, and loss of enjoyment of life.
3. The restoration or replacement of the Applicant's health condition to the Applicant should be granted as relief to compensate the Applicant for equitable remedies in respect of the breach of the fiduciary duty the [Ms Pioquinto and Mr Qui] owed to the Applicant.
4. The Applicant has suffered damages for loss of income, loss of competitive position in the employment market and/or other economic loss in amounts yet to be determined, the particulars of which will be provided prior to trial.
5. The Applicant has incurred out-of-pocket expenses. Particulars of its out-of-pocket expenses will be provided prior to trial.
6. As a further result of the Respondent's actions, the relationship of Applicant with his family was affected.
7. The Applicant further state that the Respondent's reckless and wanton conduct demonstrated a reprehensible disregard for the health, safety and rights of the Applicant, of the SLHD's patients, SESLHD's Patients, and of the general public in NSW and also in Australia, thus warranting an award of punitive damages.
8. The Applicant plead and rely upon the provision of the Australian Consumer Law 2010, the terms of Health Services Act 1997 No 154 [NSW] and the terms of NSW Health Code of Conduct.
As will be apparent from the above, these generic pleadings do not shed any light on the particular loss and damage that Mr Kitoko claims to have suffered.

[141]

A practical judgment is required to be made: Spencer at [25] (French CJ and Gummow J). The moving party bears the onus of persuading the court that an order should be made: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46] (Reeves J). The determination of a summary dismissal application does not require "a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial" and instead requires "a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial...": Cassimatis at [46].
While there are no "hard and fast" rules the moving party is likely to succeed on its persuasive onus if it is able to demonstrate that the applicant's success in the proceeding relies upon a question of fact that can be truly described as "fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials": Cassimatis at [47]. Conversely, it is unlikely to succeed where there appears to be "a real question of fact to be determined between the parties" and this is "more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty": Cassimatis at [47]. A real question of fact is also more likely to exist where the question(s) of fact concerned are complex.
As a general principle, the moving party on an application for summary dismissal is likely to succeed where the applicant's success in the proceedings "relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial": Cassimatis at [48]. The moving party would be unlikely to succeed if the applicant's success in the proceedings relies upon "a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel": Cassimatis at [48].
The Court has a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially: Cassimatis at [50].

[144]

It is to be borne in mind that there is a distinction between an application for summary dismissal, which is directed to the underlying prospects of success of the proceedings, whereas a strike out application is directed to the sufficiency of the pleadings or equivalent documentation: Abela v Minister for Home Affairs [2021] FCA 96 at [8] (Abraham J) (citing Spencer at [23] (French CJ and Gummow J)). Where the evidence shows that a person may have a reasonable cause of action or a reasonable prospect of success, but the person's pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21 of the Rules but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: Abela at [9] (citing Spencer at [23]).
Rule 16.21 needs to be considered in the light of r 16.02, which provides, amongst other things, that a pleading must identify the issues that the party wants the Court to resolve, state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against it at trial (but not the evidence by which the material facts are to be proved) and must not fail to disclose, relevantly, a reasonable cause of action appropriate to the nature of the pleading or otherwise be an abuse of process of the Court. An applicant must plead the "material facts necessary for the purpose of formulating a complete cause of action, and ... it is not sufficient simply to plead a conclusion drawn from unstated facts": McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 at [23] (Weinberg J). The material facts must be pleaded with a sufficient degree of specificity to convey to the other party the case which that party has to meet and a bare conclusion is ordinarily not a proper allegation: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; 217 ALR 226 at 235 (Beaumont J).
Further, as Perry J said in Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 at [19]:

[158]

An exercise of judicial power, it has been held, involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment. That merger has long been treated in Australia as equating to "res judicata" in the strict sense.

Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

[165]

The parties relied upon the materials contained in a court book dated 4 April 2024 (Exhibit 1), a supplementary court book dated 4 April 2025 (Exhibit 2), and a further supplementary court book dated 4 April 2025 (Exhibit 3), each of which was received in both these proceedings (NSD 1595 of 2024) and the related proceedings (NSD 1043 of 2024) that I heard at the same time. These materials set out the history of the previous proceedings that Mr Kitoko has instituted against various parties, including the respondents. The materials contained in the court book also contain all of the medical and hospital records that were in evidence before Fagan J.
As I have noted in my separate reasons in Kitoko v University of Technology Sydney (No 3) [2025] FCA 915, in giving careful consideration to the written and oral submissions that Mr Kitoko has advanced, I have been mindful of the Court's duty to ensure a fair hearing and that Mr Kitoko not be disadvantaged from the fact that he has exercised a right to be self-represented: see Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]-[57] (Markovic, Derrington and Anastassiou JJ); SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J; Allsop CJ and Mortimer J (as her Honour then was) agreeing); Hamod v New South Wales [2011] NSWCA 375 at [311]-[316] (Beazley JA; Giles and Whealy JJA agreeing).
By way of summary, Mr Kitoko submitted that no "issue estoppel" arises in the present case because the causes of action now advanced have not been previously determined. He further contended that there was "no conclusive or no final determination on the merits made by Fagan J" in that his Honour determined interlocutory applications for summary dismissal and summary judgment. Mr Kitoko contended that Anshun estoppel is inapplicable because there is no relevant connection between the SC Proceedings or relevant unreasonableness in that he has pleaded different causes of action in the present proceedings. He further submitted that he had, in fact, attempted to amend his pleadings in the SC Proceedings to advance these separate causes of action but Fagan J refused him leave to do so. As to abuse of process, Mr Kitoko contended, by reference to the factors specified in Stenhouse, that there has been no final determination of the causes of action that he sought to advance in the present proceedings and that this Court has its own power to determine those causes of action. In advancing each of these submissions, Mr Kitoko accepted that the claims made in the present proceedings relied upon the same "factual matrix" but contended that this did not give rise to a relevant estoppel or abuse of process. For example, he submitted that:
1. In the present case, [Mr Kitoko] negates any inference that the present claims for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract in this SLHD proceedings in this Honourable Federal Court is an issue estoppel[] because neither of these respondent contentions overcomes the facts that, even if the "factual matrix" in [Mr Kitoko's] current claims for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract to be determined in the SLHD proceedings in this Honourable Federal Court are closely connected (or the same) to matters alleged from [Mr Kitoko's] claims for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract in the SLHD Proceedings in the NSW Supreme Court, these claims were filed in the Supreme Court but did not proceed due to Justice Fagan's refusal to grant leave to amend...

[167]

The respondents disputed Mr Kitoko's contentions. In supplementary submissions, the respondents accepted that the preponderance of authorities established that an order for summary dismissal or summary judgment is interlocutory, but submitted that the authorities indicated that res judicata or issue estoppel may arise from interlocutory decisions: citing, amongst other authorities, Quach v Daly [2024] QCA 221 (Mullins P, Boddice JA and Crow J); Attorney-General v Kowalski [2015] SASC 123 (Blue J); cf Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; 137 SASR 117 (Doyle J). The respondents further indicated that they had not been able to identify any authorities that have relevantly considered whether Anshun estoppel can arise from summary dismissal or summary judgment from earlier proceedings beyond what was said by Blue J in Kowalski at [178]-[186]. Despite these limitations, the respondents submitted that Fagan J's determination should be regarded as having been a final determination "on the merits" or otherwise giving rise to an abuse of process.
Alternatively, the respondents submitted that even if Fagan J's determination of the SC Proceedings was not to be regarded as final and on the merits, or did not extend to all of the claims that Mr Kitoko now seeks to advance, the Court should nevertheless conclude that the claims pleaded in the FASOC have "no reasonable prospects of success and should not be permitted to continue". Further, and also alternatively, or additionally, the respondents submitted that the FASOC should be struck out without leave to re-plead on the basis that the pleadings disclose no reasonable cause of action and are embarrassing.
In further supplementary submissions in chief and reply, Mr Kitoko acknowledged that the majority decision in UBS AG v Tyne supported the proposition that an abuse of process may be established "even in the absence of a prior final judgment on the merits" but "does not establish a blanket bar". However, Mr Kitoko submitted that the decision was distinguishable because, unlike the facts in UBS AG v Tyne, he had not voluntarily discontinued his claims in the SC Proceedings, he was not recommencing substantially the same claims as Fagan J had refused leave for him to bring those claims in the SC Proceedings, there was an absence on his part of any litigation strategy seeking to obtain a tactical or procedural advantage, and he was advancing "novel and independent statutory and equitable causes of action" that have not been previously pleaded or determined.
In response to the respondents' more general contentions as to summary dismissal or strike out, Mr Kitoko submitted that he had tendered several unchallenged medical reports and opinions. In addition, Mr Kitoko submitted that the matter was one that should proceed to trial as he wished to adduce further evidence as follows:

[174]

As French J stated in Spalla at [59], "The Federal Court, like every Court of Justice, has an implied incidental power to prevent abuse of its processes". One form of such an abuse of process is the re-litigation of controversies which have already been decided. As his Honour further observed, the Court "may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings as enunciated in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589".
Invariably, the doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process have at their core the public interest in the finality of litigation and the consequence that it would be unfair and oppressive for a party to be vexed again by matters of fact and law that have been previously determined (or ought to have been previously raised for determination). However, as I will return to, the public policy considerations extend beyond these matters to also encompass considerations as to the timely and efficient use of judicial resources and the interests of other litigants.
In the present case, the determination made by Fagan J to dismiss Mr Kitoko's application for summary judgment and uphold the respondents' application for summary dismissal was interlocutory. That Fagan J's determination was interlocutory is reinforced by the reasons of the decision of the Court of Appeal in refusing to grant leave to appeal to Mr Kitoko (see, eg, at [32]). However, the mere fact that Fagan J's determination was interlocutory in nature does not necessarily stand in the way of the operation of an issue or Anshun estoppel. As the Court of Appeal of Queensland (Mullins P, Boddice JA and Crow J) stated in Quach at [2], the proposition that res judicata or issue estoppel "cannot apply to interlocutory proceedings is, as a matter of law, incorrect": citing Castillon v P & O Ports Ltd (No 2) [2007] QCA 364; [2008] 2 Qd R 219 at [50]-[58] (Holmes JA with whom Wilson J agreed). In Makhoul v Barnes (1995) 60 FCR 572, the Full Court (Hill, Cooper and Branson JJ) stated at 583:

[176]

As their Honours stated in the final sentence, it will be relevant to have regard to the circumstances of the earlier determination. That observation accords with the oft-cited Stenhouse factors which call for a close of examination of matters of relevant context and circumstances.
A more vexed issue in the present case is whether, irrespective of the interlocutory nature of the applications before his Honour, Fagan J's decision and orders may be characterised as being a determination "on the merits" for the purpose of the application of the principles of issue or Anshun estoppel.
It is a necessary element of res judicata that there be an earlier final determination on the merits, but the doctrine may also extend to an earlier determination brought about by the consent of the parties: see Hoysted v Federal Cmr of Taxation [1925] UKPCHCA 3; [1926] AC 155; (1925) 37 CLR 290 (Lords Shaw, Summer, Phillimore, Darling and Salvesen); Kinch v Walcott [1929] AC 482 (Viscount Sumner, Lords Carson and Blanesburgh); Chamberlain v Deputy Cmr of Taxation [1988] HCA 21; 164 CLR 502 at 508 (Deane, Toohey and Gaudron JJ); Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132; 265 FCR 290 at 296 [25], [27] (Allsop CJ, Moshinsky and Colvin JJ). That is because "judgments, orders and awards [made] by consent are as efficacious as those pronounced after a contest in creating cause of action estoppels and merging the causes of action sued on": Millsom v North Melbourne College Aus Pty Ltd [2023] FCA 677 at [34] (Hespe J) citing Bower GS, Turner AK and Handley KR, The Doctrine of Res Judicata (3rd ed, Butterworths, 1996) at p 21 [38].
In a similar vein, an issue estoppel ordinarily operates where there has been a final determination of the relevant issue on the merits; the issue is taken not to have been "necessarily resolved" unless there has been a decision on the merits: Zetta Jet at [20]. A decision "on the merits" in this sense is one that has been "judicially assessed or evaluated by a determination that involves finding the facts and applying the law to those facts to reach a conclusion" so as to give rise to an issue estoppel: Zetta Jet at [20] citing Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [25] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). (It has been observed that the principle may also extend to instances where there has been a consent judgment: see, generally, Robinson v Deep Investments Pty Ltd [2018] FCAFC 232 at [137] (Perram, Jagot and Colvin JJ)).
Whether the operation of the doctrine of Anshun estoppel is also limited to instances where there has been a final determination on the merits is less clear, but it has been observed that it "will always be more difficult for a respondent to satisfy" the criterion of unreasonableness when "the initial litigation was determined summarily and did not proceed through the usual processes to trial": see Kowalski at [183] (Blue J).
In the present case, it may be accepted that Fagan J's determination was not a judicial adjudication following a contested trial. Instead, it involved the determination of interlocutory applications where his Honour took Mr Kitoko's pleaded case at its highest and otherwise relied upon the material adduced by each party in support of their respective applications. There is room for debate as to the circumstances in which the determination of an application for summary dismissal or summary judgment involves a judicial adjudication on the merits. In some instances, a contested application for summary judgment, which is dispositive of an issue of law or proceeds on the receipt of extensive evidence may have the character of a determination on the merits, and an application for summary dismissal may also bear that character where it too involves a determination of particular issues of law or fact. In this respect, it is notable that in the applications before Fagan J, the parties adduced an extensive body of evidence including uncontested hospital records (to which I will return). To characterise Fagan J's determination as one that was not, strictly, a final determination on the merits may be to downplay the context within which his Honour made the findings that he did. However, it is not necessary to decide the present application on this basis. That is because, putting to one side the application of the principles of issue and Anshun estoppel, the broader and more flexible principle of abuse of process is not confined to instances where there has been a prior final determination on the merits.
In the context of attempted re-litigation, in Johnson v Gore Wood & Co [2002] 2 AC 1, Lord Bingham said (at 31) that what is called for (where it is asserted that a claim or defence should have been raised in earlier proceedings) is:

[179]

That an abuse of process is not limited to instances where there has been a prior determination on the merits was made clear in the judgment of the majority in UBS AG v Tyne (Kiefel CJ, Bell and Keane JJ; Gageler J concurring; Nettle, Gordon and Edelman JJ dissenting). There, the respondent in the High Court, Mr Tyne (in his capacity as trustee of a trust) commenced proceedings in the Federal Court against the appellant, UBS, claiming damages and equitable compensation arising out of advice and representations made by UBS to the trustee and, through him, to related entities, namely the former trustee, referred to as "ACN 074", and an investment company known as "Telesto". Mr Tyne was the controlling mind of these entities. The claimed loss arose in connection with the certain credit facilities extended to Telesto by UBS. UBS had earlier brought proceedings in the High Court of Singapore against Telesto, as principal debtor, and Mr Tyne, as guarantor, for default on the credit facilities but ACN 074 was not a party to those proceedings. Before the proceedings in Singapore were concluded, Mr Tyne, in his personal capacity, Telesto and ACN 074 commenced proceedings in the Supreme Court of New South Wales. UBS applied for a permanent stay of these later proceedings and was granted a temporary stay. Mr Tyne and ACN 074 then discontinued their claims in the Supreme Court. The Singapore proceedings were subsequently finalised in favour of UBS. Mr Tyne, in his capacity as the trustee of the trust, then commenced proceedings in the Federal Court almost two years later. The claims made in the Federal Court arose out of essentially the same facts, and were essentially the same as the claims made in the Supreme Court. UBS applied for a permanent stay of the proceedings in the Federal Court on grounds including that they were an abuse of process. Keifel CJ, Bell and Keane JJ held that the fact that Mr Tyne's claims had been discontinued and had not been heard or determined on the merits did not stand in the way of an abuse of process being found, stating at [44] that:

[192]

(a) have as their central focus the events relating to Mr Kitoko's attendance at Canterbury Hospital on 21 March 2021 and subsequently at St George Hospital on 22-24, 28, 30-31 March 2021 and 19 April 2021 (although Mr Kitoko's allegations in relation to his treatment at St George Hospital are primarily based on the events occurring between 22 to 24 March rather than the circumstances of his attendance on the dates thereafter). Specifically, both proceedings have as their focus the advice and treatment that Mr Kitoko was provided at those hospitals, or the absence of it;

(b) plead a conspiracy as between each of the defendants, together with others, as a way to injure and harm Mr Kitoko including by way of inducing, intimidating and coercing SLHD to place Mr Kitoko on a blacklist or to refuse to admit and treat Mr Kitoko: see FASOC at [5]-[6] and SC ASOC at [5]-[6];

(c) plead a further related conspiracy that SESLHD and its employees, contractors or consultants conspired with others to "discipline" Mr Kitoko: FASOC at [8] and SC ASOC at [8];

(d) plead and particularise that in circumstances where Mr Kitoko was suffering from severe abdominal right flank pain, was diagnosed with kidney failure and low levels of potassium that caused weakness in his muscle, he should not have been discharged from Canterbury Hospital, or should not have been discharged without further information being provided to him;

(e) plead and particularise that in circumstances where Mr Kitoko presented to the Emergency Department at St George Hospital with the same conditions, he was physically and sexually assaulted in that whilst he was asleep and completely unconscious under general anaesthesia, procedures were performed on him including:

(i) "rigid Cystoscopy at 30-degree", "right Ureteroscopy" and the "insertion of right ureteric stent"; and

(ii) the injection of an unknown substance into his peroneal nerve with a substance that was infected with Hepatitis B;

(f) plead and particularise that on subsequent days when Mr Kitoko was treated at St George Hospital:

(i) there were several Neuro-Physio Tests that were performed without them being explained to him; and

(ii) he was discharged despite his pain persisting and worsening;

(g) plead and particularise that one or more of these acts was a form of retribution in furtherance of the pleaded conspiracies;

(h) plead and particularise that SLHD, SESLHD and their employees, agents or consultants owed Mr Kitoko a duty of care by reason of the operation of the NSW Health Code of Conduct and other statutory obligations;

(i) plead and particularise that SLHD, SESLHD and their employees, agents or consultants engaged in deliberate acts including those set out above;

(j) plead and particularise that SLHD, SESLHD and their employees, agents or consultants breached these duties of care by engaging in one or more of the acts referred to above without taking reasonable care including by failing to advise or warn Mr Kitoko or give him information of the relevant procedures and his conditions and in discharging him;

(k) plead and particularise that SLHD, SESLHD and their employees, agents or consultants caused Mr Kitoko injury and harm that was done in furtherance of the conspiracies pleaded; and

(l) plead and particularise that SLHD, SESLHD and their employees, agents or consultants, carried out acts which were done in furtherance of the conspiracy, thereby causing Mr Kitoko to suffer various injuries and loss.

[200]

Neither Mr Kitoko nor the respondents contended that these principles were inapplicable to an assessment of the conspiracy claims that Mr Kitoko advances in the FASOC. I have proceeded on that basis.
As with the SC ASOC, the conspiracies pleaded in the FASOC are woefully inadequate in the articulation of material facts as to the necessary integers of a conspiracy at law. The pleadings in the FASOC at [5]-[6], [8], [10] and at [85]-[89] do not rise beyond bare assertion of alleged agreements to occasion some general "injury or harm".
The conspiracies that Mr Kitoko variously pleads involve an alleged agreement as between one or more of the respondents and others including Ms Julie Owens, the former Federal member for Parramatta, Mirvac and/or associated entities, and/or UTS. The subject and object of the various conspiracies are pleaded to have been to "blacklist" Mr Kitoko from receiving treatment at hospitals operated by SLHD or the SESLHD and/or to cause him to be the subject of physical or sexual assaults such that he suffered injuries and loss.
As in the SC ASOC, there is here no clear pleading of material facts by way of the identification of the acts in furtherance of the alleged conspiracy, from which the alleged agreement and/or an intent to cause injury, including economic injury, might be inferred. There is no material fact (beyond bare assertion) pleaded as to the existence of a "blacklist" or of the entry of the plaintiff's name upon it, or of him being refused admission or treatment at hospitals administered by the first defendant, or of him being "disciplined" or subjected to injury and harm (including by way of physical or sexual assaults) in furtherance of the alleged conspiracies.
Further, and more critically, as Fagan J observed at SCJ [55], the evidence that was led by both Mr Kitoko and the defendants in the SC Proceedings falsified an essential premise of Mr Kitoko's pleaded conspiracy that he was on some "blacklist" by which he was to be refused medical care. To the contrary, the preponderance of materials established that Mr Kitoko was in fact provided with medical care. That evidence is also before me. It establishes that, as a matter of fact, Mr Kitoko was admitted for care and treatment at Canterbury Hospital and later at St George Hospital. There is also evidence before me (as was before Fagan J) that Mr Kitoko and his treating GP were informed of the outcome of his admission into Canterbury Hospital and that later Mr Kitoko gave informed consent to the subsequent treatment that was provided at St George Hospital.
Even more critically, there is simply nothing in the materials that points in the direction (by way of inference or otherwise) of a conspiracy as between each of the respondents and Ms Owen, Mirvac, UTS or any of their officers. These are bald assertions and, in my view, fanciful. I am comfortably satisfied that the conspiracy claims advanced by Mr Kitoko in the FASOC have no reasonable prospects of success. They are hopeless and doomed to fail. My conclusions in this regard are significant to the balance of the causes of action that Mr Kitoko pleads because, as noted above and as further explained below, they pervade the balance of the claims advanced in the FASOC.
I am also satisfied that Mr Kitoko's pursuit of the conspiracy claims in the present proceedings amounts to an abuse of process. As set out above, in coming to this conclusion, I have taken into account that:

[204]

(a) Mr Kitoko had not pleaded or provided any evidence of the injury or damage caused by the alleged failure to treat and advise him with respect to kidney failure and low potassium levels at Canterbury Hospital on 21 March 2021 (at SCJ [57]);

(b) the undisputed records from Canterbury Hospital established that on discharge Mr Kitoko and, more importantly, his GP 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 any other concerns" (at SCJ [58]);

(c) the records also established that Mr Kitoko's subsequent diagnosis and treatment of his renal disorder was not adversely affected by his discharge from Canterbury Hospital on 21 March 2021 or, in particular, by the absence of any specific advice at that time regarding his low blood potassium level (at SCJ [59);

(d) Mr Kitoko's claim that he was physically or sexually assaulted while under anaesthetic at St George Hospital on 23 March 2021 was unsupported and he was not in a position to give evidence that anything done while he was under anaesthetic exceeded the informed consent he had given to the procedures that were performed (at SCJ [61]);

(e) Mr Kitoko's claim that Mr Qui and/or employees, agents or consultants of SESLHD "abusively sprained [his] right lower limb and right foot" and "injected [his] peroneal nerve [...] with unknown substance infected with Hepatitis-B" was unsupported by any evidence (at SCJ [63]). Further:

(i) the uncontested hospital records affirmatively established that dysfunction in Mr Kitoko's right lower limb, impairment of the peroneal nerve in that limb and the plaintiff's Hepatitis B infection were causally unrelated to treatment in the hospital; and

(ii) Mr Kitoko's own evidence established that he supplied a blood sample on 22 March 2021 before his admission to the hospital that day that already recorded Hepatitis B surface antigen and core antibody were detected, indicating extant infection (at SCJ [66]); and

(f) Mr Kitoko's claim that "several Neuro-Physio tests" were performed on him on 24 March 2021, was not supported by any evidence from himself or any other witness (at SCJ [67]) and the allegations that he was discharged from St George Hospital without information as to his condition, particularly his low potassium level, was directly refuted by the undisputed hospital record (at SCJ [68]).

[207]

As to the procedures performed on Mr Kitoko at St George Hospital on 23 March 2021, and the treatment that he received at that Hospital, neither the FASOC nor any of the materials before me articulate the basis upon which Mr Kitoko claims that he was sexually or physically assaulted when under general anaesthetic and unconscious. Mr Kitoko's pleaded case in this respect is no more than inferential from the fact that certain procedures were performed, but the critical point about these procedures is his claim that they led to him suffering an "abusive sprain" to his "right lower limb and right foot" and also involved having "Neuro-Physio" tests performed, and an injection in his peroneal nerve with an unknown substance such that he was infected with Hepatitis B. However, the uncontradicted hospital records establish that Mr Kitoko had already suffered from lower back pain for 10 years from a previous injury to his cervical and lumbar spine and the blood sample retrieved on 22 March 2021 already evidenced an extant infection of Hepatitis B. Furthermore, the medical opinion of Dr Robertson, which Mr Kitoko annexed to his affidavit filed on 7 August 2024 (August Affidavit) reveals that the suspected cause of the pain in Mr Kitoko's right leg was a lesion in Mr Kitoko's lumbar spine: Exhibit 1 at p 490-491. This is consistent with Mr Kitoko's historical spinal injury noted in the hospital records and inconsistent with Mr Kitoko's claim that Mr Qui and/or an employee, consultant or agent of SESLHD "abusively sprained" Mr Kitoko's "right lower limb and right foot" during the procedure performed on 23 March 2021. The other assertions made by Mr Kitoko as to physical and sexual assaults were, and remain, no more than assertions that have not been properly pleaded or particularised (notwithstanding the serious deficiencies identified by Fagan J).
Mr Kitoko submitted that he had tendered several unchallenged medical reports that supported his claims including findings of Dr Hutchinson, Dr Varsha Kumari, Dr Barnabas Bako, Dr Alasdair Robertson and Dr Rajiv Wijesinghe, as well as the findings of a physiotherapist Mr Derryn Chiu. None of the documents are, in fact, medical or expert reports but appear to be extracts from emails or letters that Mr Kitoko has extracted and put into the body of his August Affidavit.
The so-called report of findings of Dr Hutchinson appears to be an email dated 14 April 2021 that Dr Hutchinson sent to Mr Kitoko's treating doctor which Mr Kitoko has extracted and pasted into the body of his August Affidavit. Dr Hutchinson appears to have been the Director of Emergency Medicine and a Staff Specialist in Emergency Medicine at Catnterbury Hospital. Her email is entitled "Patient Feedback". In that email, Dr Hutchinson notes that Mr Kitoko was seen in the Emergency Department at Canterbury Hospital when he presented with abdominal pain and then presented later at St George Hospital, at which time he was treated by way of a procedure to remove a kidney stone. Dr Hutchinson indicated that the doctors involved in providing care to Mr Kitoko at Canterbury Hospital recalled that he had been discharged at a time when his pain had settled and that is why they did not proceed with a "CT" but in retrospect it may have been "best to perform imaging" given his abnormal creatinine. Nothing in that email suggests or establishes that Mr Kitoko suffered any injury by being discharged and the evidence at its highest indicates no more than that a judgment was exercised by the relevant doctors in question. As addressed above, the apparent email from Dr Hutchinson does not establish what injury or loss Mr Kitoko suffered by reason of his discharge from Canterbury Hospital, especially in circumstances where he attended St George Hospital the very next day.
The so-called report of findings of Dr Kumari appears to be a reference to a discharge report authored by Dr Kumari on 31 March 2021, which, again, Mr Kitoko has extracted and pasted into the body of his August Affidavit. The apparent report states that Mr Kitoko had noted "pain bilaterally in his lower limbs" following the procedure to remove the kidney stone but the apparent report proceeds to state that "Mr Kitoko has a history of hypertension" and a "previous injury to his cervical and lumbar spine ten years prior resulting in disc herniation". The apparent discharge report further indicates that following discussions with the Orthopaedic team there were "no sinister features in current clinical feature", and that Mr Kitoko was "reassured" and told that symptoms may persist for several weeks. Nothing in this apparent "record" supports Mr Kitoko's claims and points to the fact that (as noted above) Mr Kitoko was suffering from expected pain following a kidney stone being removed in circumstances where he had a clinical history of hypertension and injury to his cervical and lumbar spine.
Next, the so-called report and findings of Dr Bako appears to be a letter dated 8 April 2021 sent to Mr Kitoko's treating doctor following an ultrasound being performed on his right ankle which, again, Mr Kitoko has extracted as plain text into the body of an affidavit. Relevantly, the apparent letter concludes that "Apart from minor thickening of the anterior talofibular ligament, no other abnormalities were seen." Again, this apparent report does not support Mr Kitoko's claims.
Next, the so-called report and findings of Dr Robertson appears to be a letter dated 12 June 2021 sent to Mr Kitoko's treating doctor following an ultrasound being performed on his right ankle which, again, Mr Kitoko has extracted as plain text into the body of his August Affidavit. As noted above, the report of Dr Robertson indicated that the suspected cause of Mr Kitoko's pain in his lower leg was the lesion on his lumbar spine. This too does not support Mr Kitoko's claims.
Next, the so-called report and findings of Dr Wijesinghe appears to be a report dated 30 August 2021 which, again, Mr Kitoko has extracted as plain text into the body of his August Affidavit. Mr Kitoko identifies Dr Wijesinghe as a "Consultant Neurologist". The apparent report states no more than that there were "neurophysiological changes" that could be seen in the context of a "direct traumatic injury" to the muscle following a kidney stone removal, but does not establish whether such changes are expected responses to the procedure and falls well short of pointing to any negligence on the part of the respondents.
Next, the so-called report and findings of Mr Derryn Chin appears to be a letter dated 27 July 2021, which, again Mr Kitoko extracted as plain text into the body of his August Affidavit. It does little more than state that Mr Kitoko reported lateral ankle pain following the removal of the kidney stone. It does not suggest, let alone establish, negligence on the part of the respondents.
As will be evident from the above, the apparent documents upon which Mr Kitoko relies to prove his case are unambivalent and fall well short of establishing or explaining why or how the respondents' conduct was negligent: cf Boston Commercial Services at [45] (Rares J). Recently, in Azad v Avant Insurance Limited (No 2) [2025] FCA 853, Colvin J stated at [5]:

[211]

It is true that Mr Kitoko did not plead claims as to misleading and deceptive conduct in the SC Proceedings. It is also true that Mr Kitoko sought leave to amend the SC ASOC to plead these claims, but leave was refused by Fagan J. However, as mentioned above, the misleading and deceptive conduct claims proceed on the basis of the same factual substratum as the claims in conspiracy and negligence.
The substance of the misleading and deceptive conduct claims is that Ms Pioquinto, at the direction of Ms Anderson, made a representation to Mr Kitoko on or about 21 March 2021 (at or about the time of his discharge from Canterbury Hospital) that "after all tests carried on [sic], nothing wrong of concern could be found and [Ms Pioquinto] advised [Mr Kitoko] to go home and to return to the Canterbury Hospital only if fever, worsening, or any other concerns": FASOC [39]. It was pleaded that this representation was untrue, inaccurate, or misleading because a medical report confirmed that Mr Kitoko was suffering from severe abdominal right flank pain, was diagnosed with kidney failure (around 32% of functioning) and also low level of potassium: FASOC [39(A)]. The Misleading Conduct by Silence that is pleaded is the other side of the coin in that Mr Kitoko pleaded that Ms Anderson and/or Ms Pioquinto should have disclosed the true position to him: FASOC [41]. The Fraudulent Misleading Representations that are pleaded are that Ms Anderson and Ms Pioquinto in representing that there was nothing of concern with Mr Kitoko, "deliberately" decided not to provide Mr Kitoko with care as a sick and injured person, and thereby being "Knowingly, recklessly or careless that it was not true or false, and knowingly, recklessly or careless that will cause the loss to the Applicant": FASOC [39].
As with the other causes of action that I have considered thus far, I am not satisfied that Mr Kitoko's misleading and deceptive claims have reasonable prospects of success.
As a starting point, one immediate difficulty with Mr Kitoko's case is that the pleaded representation is falsified by the objective record. As Fagan J found, the undisputed records from Canterbury Hospital established that both Mr Kitoko and his GP were informed that his creatinine level was unusual, that further investigations may be required concerning the health of his kidneys, and that he should return to the hospital in the event of "fever, worsening pain or any other concerns". That accords with my own review of the discharge records from Canterbury Hospital. In other words, even if representations were made, the objective records indicated that they were not to the effect that there was "nothing of concern". Rather, there was a recognition that further investigations may be required as to his health and he should return in the event of fever, worsening pain or other concerns. It should be observed that these representations were made in the context of Mr Kitoko being discharged from the Emergency Department of a public hospital and not from a specialist unit of that hospital.
Further, Mr Kitoko's pleading does not disclose why such representations were false or misleading, or knowingly or recklessly so, beyond bare assertion. The only assertion that is made in this regard is that a medical report confirmed that he had kidney failure, low levels of potassium and pain in his abdominal right flank, but that did not falsify the representation that further investigations were required as to his health.
More critically, Mr Kitoko's pleaded case does not articulate in any sensible way the causally connected loss or damage that he suffered by reason of the alleged representations. In the particulars to this claim, Mr Kitoko asserts that the representations resulted in a "loss of chance or opportunity" without identifying what this "chance" or "opportunity" was, how it was lost, and what damage was occasioned as a result. The medical records indicate that Mr Kitoko attended Canterbury Hospital on 21 March 2021 and was discharged later that day and then presented to St George Hospital for admission on the following day, 22 March 2021, where he was then treated until he was discharged on 24 March 2021 (returning later in respect of further pain). However, Mr Kitoko's case is that in reliance upon the representation made by Ms Pioquinto he went home, but he then returned to a different hospital the very next day precisely as he was told to do if the pain persisted. Nothing in the pleaded case discloses what loss Mr Kitoko suffered by reliance on the alleged representation. Rather, as noted above, the pleaded claim for loss and damage seeks money by way of "fair and adequate compensation for the loss or injury sustained by reason of reliance on Hung's and/or UTS's wrongful conducts at the discharging time". As noted above, the claimed loss here is entirely disconnected to the cause of action pleaded against the relevant respondent (and concerns the conduct of persons that are not parties to the present proceedings). The more generic pleadings as to damages at FASOC [70]-[77] add nothing to the claim.
I am comfortably satisfied that Mr Kitoko's pleaded misleading and deceptive conduct claims have no reasonable prospects of success and should be summarily dismissed.
I am also satisfied that it would be an abuse of process to permit Mr Kitoko to litigate a cause of action that is premised on a representation that is contrary to the finding made by Fagan J (based on uncontested records) as to what was, in fact, conveyed to Mr Kitoko. To be clear about this, the finding made by Fagan J (based on uncontested records) is not consistent with the assertion that Mr Kitoko was told that there was "nothing wrong" and he could simply "go home". Rather, as Fagan J found, Mr Kitoko was specifically told that his health conditions required further investigation. Although Fagan J's finding was made in the context of an interlocutory application, it was nevertheless a finding made on the basis of objective documentary records which Mr Kitoko did not contest. Again, as with the causes of action I have considered thus far, I consider it would be oppressive and unfair to the respondents to have to be met with further litigation in seeking to falsify a pleaded representation where a finding has already been made that falsifies it.
As a result of the conclusions I have reached, it is unnecessary for me to consider whether an issue or Anshun estoppel arises, or to further consider whether Mr Kitoko's claims are maintainable on other reasons including that it fails to establish whether the relevant conduct was engaged in "trade or commerce" and in reliance upon the (long since repealed) Trade Practices Act 1974 (Cth).

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