Kitoko v University of Technology Sydney

Supreme Court of NSW|2019-06-12|Before: Wright J

Background

For the purposes of this appeal it is not necessary to set out all of the events relating to Mr Kitoko which occurred during the relevant period of 2010 to 2015 and which are referred to from time to time in various proceedings. Nor is it necessary to refer in detail to all the complaints made, and proceedings brought by, Mr Kitoko arising out of those events, including those to the Ombudsman and the Anti-Discrimination Board and in the District Court, the Court of Appeal and High Court, the Civil and Administrative Tribunal of New South Wales and the Supreme Court.

Enrolment at UTS and the Federal Circuit Court proceedings

It is sufficient to note that the present proceedings arose out of what occurred during the period from about 2010 to 2015 and Mr Kitoko's ceasing to be enrolled as a student in a Doctor of Philosophy degree at UTS. In 2015, UTS decided to discontinue Mr Kitoko's enrolment and Mr Kitoko was notified of that decision on 19 May 2015. An internal appeal by Mr Kitoko to an appeal committee was dismissed on 7 August 2015. Mr Kitoko complained that UTS had discriminated against him on the basis of race and disability.

Proceedings in this Court

By summons filed on 12 October 2017, Mr Kitoko commenced proceedings in the Supreme Court seeking orders that: 1. "will require [UTS] to set aside its decision dated 07 August 2015 discontinuing [his] PH.D candidature"; and 2. "will require [UTS] to allow the conclusion of [his] PH.D study and then [Mr Kitoko] to obtain the degree sought".
The grounds on which those orders were sought were: "1. The Plaintiff asks for the Supreme Court of NSW to issue an order, which will require the University of Technology Sydney (UTS) to set aside its decision dated 07 August 2015 discontinuing the Plaintiff's PHD candidature, and which will require the UTS to allow the conclusion of the Plaintiff's PHD study and then the Plaintiff to obtain the degree sought. Grounds 2. The Plaintiff considers to be aggrieved by the unfairness of the UTS decision. To the Supreme Court of NSW therefore to issue an order for equitable remedy in respect of the decision of any one or more of the following grounds: A. That a breach of the UTS code of practice for Supervisors, Advisors and Research Degree Students in connection with the Plaintiff's PHD candidature assessment and/or the review of progress. (Abandonment). B. That a breach of the UTS general rules in connection with the Plaintiff's PHD candidature assessment and/or the review of progress, and with the Plaintiff's PHD candidature discontinuation. (Discontinuation, breach of rules, procedural fairness). C. That the UTS decision in the Plaintiff's PHD discontinuation was induced/or affected by fraud, collusion and corruption." (Fraud, collusion and corruption)."
In support of the summons, Mr Kitoko filed an affidavit affirmed by him on 12 October 2017, which in effect set out his submissions supported by documentary material.
On 23 October 2017, Mr Geng, who was the solicitor with daily conduct of the matter on behalf of UTS, affirmed an affidavit which, in effect, did no more than annex a copy of the FCC application made by Mr Kitoko and his closing submissions to that court and propose some consent orders to be made in the Supreme Court proceedings.
On 24 October 2017, it appears that the Registrar directed Mr Kitoko to file and serve evidence to explain the delay in commencing proceedings. As a result, Mr Kitoko filed an affidavit affirmed on 16 November 2017.
On 12 December 2017, the Registrar made directions and orders as follows: "1. The Defendant to file and serve any stay application and or dismissal application and affidavit in support by Friday 22 December 2017. 2. The Plaintiff to file and serve any response to the application by Thursday 25 January 2018. 3. The matter listed for directions on Friday 2 February 2018. 4. Liberty to restore with 3 days' notice."
On 21 December 2017, UTS filed a notice of motion seeking orders that: "1. The proceedings be dismissed as out of time. 2. Alternatively, the proceedings be stayed until the decision in Vangu Kitoko v University of technology Sydney is delivered by the Federal Circuit Court… 3. Upon the determination of order 2, the defendant have liberty to relist this application on three days' notice, to move the Court to make orders that: a. the proceedings be summarily dismissed; and/or b. the proceedings be permanently stayed."
This notice of motion was supported by an affidavit of Mr Geng affirmed 20 December 2017.
On 25 January 2018, Mr Kitoko filed his affidavit affirmed on the same day in opposition to UTS's notice of motion of 21 December 2017.
On 2 February 2018, the UTS's notice of motion of 21 December 2017 was set down for hearing on 9 March 2019 and directions were made for UTS to file and serve written submissions by 16 February 2018 and Mr Kitoko to do the same by 2 March 2018.
At the hearing on 9 March 2018 before Harrison AsJ, counsel for UTS indicated that he was seeking all three orders sought in UTS's notice of motion. In response to a direct question from her Honour, Mr Kitoko said that he was ready to proceed that day. During the course of the hearing, however, it appeared that Mr Kitoko had not received a copy of Mr Geng's affidavit of 20 December 2017 and the two volumes of the exhibit to that affidavit. In these circumstances and as the decision of the FCC had not been handed down, her Honour adjourned the hearing of UTS's notice of motion, by agreement, to 27 April 2018, to allow Mr Kitoko time to review the material and in the hope that the FCC decision would be handed down by that time. Counsel for UTS indicated that if the FCC decision was in UTS's favour: "it may be that the most efficient course is to go to a final hearing in a circumscribed way because the issue of estoppel will substantially resolve all the underlying facts".
On 28 March 2018, the FCC handed down its decision in Kitoko v University of Technology Sydney [2018] FCCA 699, dismissing Mr Kitoko's claims.
On 19 April 2018, Mr Geng emailed the Associate to Harrison AsJ, copied to Mr Kitoko, advising that the FCC judgment had been handed down and stating: "… Having regard to that Court's findings, [UTS] will now move for summary dismissal of the present proceedings. [UTS] seeks leave to file and serve: (a) a further affidavit deposing to the judgment and including other documents necessary for the determination of the proceedings; and (b) further written submissions. Those documents are ready to serve now. It being just over one week before the resumed hearing, these orders are sought on the basis that the affidavit and submissions will be served no later than tomorrow (Friday, 20 April 2018). None of the material to be served, save for the detail of the submissions, will be new to the Plaintiff. It is submitted that one week is an adequate period of time for the Plaintiff to consider how he wishes to respond. We note that we have recently confirmed with the Plaintiff, by telephone, his email address and postal address for service, and intend to serve all documents by both means. …"
On the same day, the Associate responded that the Associate Judge was presently on leave returning the following Monday and the emailed would be passed on to her then.
It appears that the affidavit of Mr Geng of 19 April 2018 and UTS's submissions dated 16 April 2018 headed "Defendant's submissions on paras 1 and 2 of its notion of motion filed 21 December 2017" were served on Mr Kitoko on 19 April 2018 by email and a physical copy was served by express and registered post on Friday, 20 April 2018. From the affidavit of service of Heydon Gregory sworn 26 April 2018, I accept that hard copies of UTS's submissions dated 20 April 2018 headed "Defendant's submissions on para 3 of its notice of motion filed 21 December 2017" and Mr Geng's affidavit of 19 April 2018 together with the exhibit referred to in that affidavit were served on Mr Kitoko by post sent on 20 April 2018 to the address notified by him.
At 3:29 pm on 26 April 2018, Mr Kitoko emailed the Associate to Harrison AsJ, copied to Mr Geng, saying: "Due to a medical condition, I would like to postpone the hearing of notice of motion is listed tomorrow 10 am. Please consider the attached medical report and arrange for the hearing to take place at a later time."
On 27 April 2018, counsel for UTS appeared before Harrison AsJ. During the short proceedings, her Honour gave leave to file in court the affidavit of Mr Geng dated 19 April 2019. UTS's written submissions dated 20 April 2018 were also referred to. Her Honour made orders fixing the hearing date of the matter on 7 June 2018 and noted that if Mr Kitoko did not appear on that date the matter may proceed in his absence. Her Honour also took steps to ensure that Mr Kitoko had available to him all the material relied upon by UTS. Emails confirming the adjourned date and the fact that the matter may proceed in his absence were sent to and received by Mr Kitoko, as confirmed in his email to the Associate, copied to Mr Geng, of 3 May 2018.
On both 9 March 2018 and 27 April 2018, the Associate Judge was obviously aware of the need to accord Mr Kitoko procedural fairness and took steps to ensure that this occurred.
On 7 June 2018, both parties appeared before her Honour and the matter was heard. At the beginning of the hearing: 1. Mr Kitoko indicated that he was ready to proceed (T1.21-23); 2. it was clearly established that, despite the potentially confusing wording of prayer 3 in UTS's notice of motion of 21 December 2017, what was being heard was an application for summary dismissal as referred to in prayer 3(a) (T1.21-33, T2.16-T3.1); 3. Mr Kitoko did not object to the two affidavits of Mr Geng (mistakenly referred to in the transcript as Mr Nguyen) relied upon by UTS (T1.33-.40).
Mr Kitoko relied upon his written submissions and made oral submissions at the hearing. At the end of the hearing her Honour reserved her decision.
On 11 July 2018, Harrison AsJ delivered judgment dismissing Mr Kitoko's summons for judicial review and ordering him to pay costs: Kitoko v University of Technology Sydney [2018] NSWSC 1007. Her Honour examined in detail the factual and legal issues relied upon by Mr Kitoko in the Supreme Court proceedings, at [28] to [44], and the factual and legal issues determined in the FCC proceedings, at [45] to [89]. Applying the principles concerning issue estoppel set out in [18] to [24] of her judgment, Harrison AsJ held: "90. The Federal Circuit Court made findings and conclusions in relation to ground of review 2A unsatisfactory progress and discontinuance, 2B alleged fraud, collusion and corruption - abandonment and 2C further alleged fraud, collusion and corruption arising out of the plaintiff's accident at Broadway. 91. It is my view that the same matters are agitated in this judicial review. They have already been decided by a decision of a judge in the Federal Circuit Court. The judicial decision of the Federal Circuit Court is final. That Federal Circuit Court decision involves the same parties as these current proceedings. The requirements for there to be an issue estoppel have been met. As these proceedings are the subject of issue estoppel and therefore cannot be relitigated in this Court, they should be dismissed. 92. The last topic to be addressed is whether there have been breaches of the UTS Student Rules. While mention was made of some of the UTS Student Rules in the Federal Circuit Court, and some factual findings made, they were not finally determined."
None of these conclusions nor any of the analysis or findings upon which these conclusions were based was sought to be specifically challenged in any of Mr Kitoko's grounds of appeal.
In the light of her Honour's conclusion at [92], Harrison AsJ then went on to consider whether there was any merit in any of the allegations of breaches of the UTS Student Rules. Her Honour stated at [95] that she carefully read through Mr Kitoko's submissions and had set out, at [97], each of the rules Mr Kitoko referred to, in addition to rule 11.13.1 which he specified as having been breached, and the rules referred to by UTS. It was then identified, at [99], that these rules were potentially relevant to the issues described as "discontinuance", "the payment of $500" and "the appeal committee". Her Honour's consideration of those issues was as follows: "(A) Discontinuance 100. The plaintiff submitted that UTS had accepted his progress. It is true that UTS had accepted his progress up to a point in time. The plaintiff says "Rule 11.13.1 required him to put in a notice of a submission two months before he submits his thesis. Your do not need the supervisor to do that. You fill in the form and you put it in". That is how he did it. The plaintiff submitted that "when the student has done this, the rule says that you cannot give the student an "unsatisfactory" in the same semester unless the student has not submitted their thesis". The plaintiff's reliance on UTS Student Rule 11.13.1 is misplaced. (T23: 25-30) 101. According to the plaintiff, his thesis was lodged on time so he was surprised when he was given an unsatisfactory. He says that he was given two "unsatisfactory" without any notice being given to him and "the rules says that if you give an unsatisfactory you must give notice to the student. You receive a letter from the university". He received a letter from the university dated 7 April 2015 giving him notice of two "unsatisfactory". (T23.24-36). The plaintiff also submitted that he was given the two "unsatisfactory" on 29 and 30 January 2015, and for almost three months "they kept it a secret". The rule says that "if you give a student two unsatisfactory that student must be dismissed…You dismiss a student on a zero." (T 24: 5-10) 102. The failure to meet the requirements of UTS Student Rule 11.13 was not just because the plaintiff himself had not submitted the student's report as required by 11.13.1. Rather, there had been two unsatisfactory progress reports issued under rule 11.13.2 (at [19], [26]-[29], [108], [121], [127], [167]). The two types of "progress report" are different, although the plaintiff's failure to submit a report under UTS Student Rule 11.13.1 was the reason for the second unsatisfactory progress report under rule 11.13.2. It was the combination of the two reports which informed Associate Professor Abolhasan's recommendation to discontinue the plaintiff's candidature: the Federal Circuit Court judgment at [182]. On the facts as found by the Federal Circuit Court, one of the four circumstances which gave rise to the decision to discontinue the plaintiff's enrolment was linked to the application of that rule. That circumstance fell within UTS Student Rule 11.23.2(1) specifically "where a student has not satisfied progress requirements (refer Rule 11.13)." 103. In addition, there were three other reasons for that recommendation (referred to earlier in this judgment). One of those reasons was the plaintiff's failure to submit a thesis within an approved period of candidature. That was a reason permitted by UTS Student Rule 11.23.2(1)(a). By the time of discontinuance, the maximum period of candidature allowed by UTS Student Rules 11.7.1(1)(a) and 11.8.3(1) (being four years, plus two six-month extensions) had been exceeded: the judgment at [182]. UTS Student Rule 11.10.1 says that discontinuation will "except in exceptional circumstances" ensue when the approved period of candidature is exceeded. The fact that the draft thesis was not suitable for examination, and the failure to produce necessary information to allow the thesis to be examined, may be understood as discretionary factors supporting the decision to discontinue (or as indicating that these were not "exceptional circumstances"). 104. Even if the plaintiff is correct to construe UTS Student Rule 11.13.1 as inapplicable after his attempted submission of his draft thesis in December 2014 that could not negate the decision to discontinue his enrolment. That construction is not open in any event, because the plaintiff had himself not complied with the UTS Student Rules when he attempted to submit the thesis in December 2014. This was because the thesis was not accompanied by a supervisor's certificate as required by UTS Student Rule 11.19.6. It is important to note that the Federal Circuit Court made a relevant finding that this topic was not disputed. It was when the plaintiff purportedly submitted his draft thesis to the GRS, that it did not include a supervisor's certificate from Professor Nguyen, as required by UTS Student Rules 11.19.6 (at [28], [126]). 105. The plaintiff's contention that the point had been reached when UTS Student Rule 11.13.1 ceased to apply is incorrect. Rather, the correct interpretation is that the plaintiff remained a student whose doctoral studies were incomplete. (B) The payment of $500 and the appeal committee 106. The plaintiff says that he put the application in with the $500 in accordance to the rule because he had finished his thesis. This process, according to the plaintiff, "takes two week to approve with the collaboration between the faculty and the graduation school. It is not someone in the office. They pay the money from the finance system for UTS. Not by hand." 107. The plaintiff submitted that he does not agree that he was dismissed in April 2015, because three months later in June 2015 they paid him the amount of $500. He says that he was still a student. He was not dismissed and therefore there was no reason for him to go to the meeting before the appeal committee. (T24.3-30). As was made clear in the Federal Circuit Court judgment at [28], the sum of $500 was paid by UTS in order for the plaintiff to facilitate the proof reading of his draft thesis and did not substantiate the conclusion that the thesis had been accepted or approved for examination. 108. As to the matters relating to the plaintiff's appeal to the appeal committee, there is no basis to say there was any non-compliance with any of the relevant rules. As those documents established, the appeals committee dismissed the appeal because "there was no evidence presented which would have reasonably led to a decision other than the discontinuation of candidature", and hence the grounds of appeal in UTS Student Rule 11.24.4 were not made out. 109. The facts also provide no basis at all for any finding of a breach of any relevant provision of UTS Student Rules 17.5 to 17.7. The Federal Circuit Court rejected the plaintiff's claim that Professor Nguyen had interfered in the appeal (at [186]-[187]). Accordingly there was no breach of UTS Student Rule 17.5.5. There is nothing in the judgment, the minutes or any other available material to suggest any other procedural failure within 17.5.1 to 17.5.5. The letter dated 7 August 2015 records that the appeal committee's decision was unanimous, and its action in dismissing the appeal was open to it under UTS Student Rule 17.7.2. (c) Alleged falsification of minutes [of the appeal committee] 110. Here, as in the Federal Circuit Court, the plaintiff complained about the falsification of the minutes of the meeting dated 3 August 2018. The plaintiff also refers to UTS Student Rule 17.7.3, in connection with his (now rejected) allegation about the "falsified" minutes. In the Federal Circuit Court there was no evidence to substantiate the plaintiff's claim that UTS had "falsified" the minutes of the GRS appeals committee meeting of 3 August 2015. There is no basis to conclude that the minutes were not provided to the UTS secretary (previously registrar) within the required time. Even if that were so, the subsequent internal procedural step would not have any particular consequences for the plaintiff one way or another, and could not affect the validity of the earlier discontinuance decision or the dismissal of the appeal. My conclusion 111. The plaintiff's arguments concerning breaches of the UTS Student Rules are hopeless and should be dismissed.
Once again, none of these conclusions nor any of the analysis or findings upon which these conclusions were based was sought to be specifically challenged in any of Mr Kitoko's grounds of appeal.
Finally, in relation to a submission that UTS failed to accord Mr Kitoko procedural fairness, her Honour held at [112]: "the plaintiff was afforded more than a reasonable opportunity to submit his PHD thesis on the topic of Development and Optimisation of Bio-Compatible Polymer-Based Electros for EEG Recording but he did not do so. In my view, the plaintiff's submissions that the defendant breached the UTS Student Rules and failed to afford him procedural fairness are hopeless. They should be dismissed."
As the problems could not be cured by amendment, the proceedings were dismissed, at [114].
Mr Kitoko has appealed against the orders summarily dismissing these proceedings and ordering him to pay costs, on the four grounds set out above.

Grounds 1 and 2 - denial of procedural fairness and of practical justice

Grounds 1 and 2 can conveniently be dealt with together. The substance of these grounds was that Harrison AsJ should not have admitted in evidence and considered the affidavit of Mr Geng of 19 April 2018 nor should she have considered the written submissions of UTS dated 20 April 2018, as they were not filed or were filed out of time. Alternatively, if they were to be admitted, her Honour should have given Mr Kitoko an adequate period of time to respond to the affidavit of Mr Geng dated 19 April 2018 and the submission of the defendant's counsel dated 20 April 2018. Failure to do these things were said to be a denial of procedural fairness and of practical justice.

Submissions

Mr Kitoko submitted that UTS was required to comply with the orders made by the Registrar on 2 February 2018. These required UTS to file and serve written submissions by 16 February 2018. He contended that no leave was granted and that allowing UTS to file materials, in particular the affidavit of Mr Geng of 19 April 2018 and UTS's submissions of 20 April 2018, out of time, in court when he was not present involved a denial of procedural fairness.
One of Mr Kitoko's points in oral submissions was that the affidavit and the submissions were required to be filed in the registry: "Filing is with the registry, it is not sending material. The information I have as self represented in the Court, I read all information from the Supreme Court. It is clear that when you send the material to the associate of the judge it does not mean you are filing the material. You are filing material when you file it from the registry. So the material was not yet filed."
It was also submitted that, if these materials were to be admitted, he should have had an opportunity to respond to them before the matter was heard.
Mr Kitoko further contended that, since her Honour considered these "adverse materials" and they "were credible, relevant and significant to the decision made by her Honour, and [he] lost an opportunity to put any information or argument to the dismissal decision", the decision of Harrison AsJ was invalid.
UTS submitted, among other things, that the Court gave leave for the affidavit to be filed in Court on 27 April 2018, that Mr Kitoko was on notice since the 21 December 2017 notice of motion that when the FCC judgment was handed down there might be further evidence and argument about summary dismissal, and that evidence of the FCC judgment could not be provided before it was handed down. It was said that in the circumstances of the present case there was no denial of procedural fairness or practical injustice.

Consideration

The duty of a court to accord procedural fairness is long established. In Commissioner of Police v Tanos (1958) 98 CLR 383; [1958] HCA 6, Dixon CJ and Webb J said at 395-6: "… [i]t is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity to be heard. In Cooper v. Wandsworth Board of Works Byles J. said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'. The older authorities ever recur to the lines from Seneca's Medea which apparently were introduced into the subject by Boswel's Case: Quicunque aliquid statuerit, parte inaudita altera, Aequum licet statuerit, haud aequus fuerit … The general principle has been restated in this Court with a citation of authority in Delta Properties Pty. Ltd. v Brisbane City Council. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course." (footnotes omitted)
In my view, Mr Kitoko was afforded procedural fairness. He was informed of what was to be determined at the hearing on 7 June 2018 and of what material, by way of affidavits and submissions, was being relied upon by the UTS with sufficient time for him to be able to meet the case against him.
The proceedings had been adjourned on two occasions in March and April 2018 prior to the hearing on 7 June 2018. On both occasions, the Associate Judge had been at pains to ensure that Mr Kitoko was aware of the material being relied upon by UTS and the nature of the proceedings and to ensure that the matter was not heard without Mr Kitoko being given the opportunity to consider the material and respond.
In oral submissions on this appeal Mr Kitoko conceded that he was aware of, and had received Mr Geng's affidavit of 19 April 2018 and the submissions of 20 April 2018 (12 June 2019 T22.34). Based on the affidavit of service referred to above, I am satisfied that he received them or they were available to him between about 20 and 26 April 2018, at the latest. He was also informed immediately after the hearing on 27 April 2018 that the proceedings were listed for hearing on 7 June 2018.
In addition, the email of 19 April 2018 from Mr Geng to Harrison AsJ's associate, copied to Mr Kitoko, put Mr Kitoko on notice that UTS was moving for summary dismissal of the proceedings. This was confirmed at the beginning of the hearing on 7 June 2018. Mr Kitoko indicated that he was ready to proceed on that occasion. Mr Kitoko did not, when given the opportunity, object to the two affidavits of Mr Geng, including the affidavit of 19 April 2018, being relied upon by UTS at the hearing on 7 June 2018. Nor did he seek an adjournment or indicate that he was not in a position to deal with an application for summary dismissal.
In any event, Mr Geng's affidavit of 19 April 2018 merely annexed a copy of the FCC judgment delivered on 28 March 2018 together with copies of correspondence between UTS and Mr Kitoko in the period from April to August 2015, a copy of the appeal committee's minutes signed on 10 August 2015, extracts from the 2015 UTS Student Rules and the 2015 Code of Practice for Supervisors and Research Degree Students. None of this material was contentious and had been before the FCC, where Mr Kitoko had also represented himself.
Mr Kitoko did not identify any particular aspects of the affidavits or the submissions which caused him any prejudice in the conduct of the proceedings or which he could have met by evidence in addition to the evidence already before the Court.
From the transcripts of what occurred at the various hearings and the actions taken, I am satisfied that the Associate Judge took all reasonable steps to ensure that Mr Kitoko was accorded procedural fairness in relation to the hearing of the application for summary dismissal on 7 June 2018. He had adequate time, in the circumstances, to consider and meet any of the material raised in the affidavit of Mr Geng of 19 April 2018 and UTS's submissions of 20 April 2018. He was not denied procedural fairness nor was he denied practical justice, as contended in grounds 1 and 2.
For all of these reasons, the appeal based on grounds 1 and 2 should be rejected.

Ground 3 - the decision of the court below was made in bad faith

Submissions

In relation to ground 3 Mr Kitoko submitted, in his written submissions at pars 33 to 34, that on 7 June 2018: 1. he did not have full mental capacity due to his mental disability which he described as aggravated double adjustment disorder; 2. both Harrison AsJ and UTS were aware of his condition but took the disability "as an opportunity to manipulate the hearing rule (misleading [Mr Kitoko], breaching procedural fairness obligation and tolerating injustice) to avoid addressing the question posed in [his] summons dated 12 October 2017".
It was then submitted that "[t]aking decision with intended dishonesty and favouritism involves jurisdictional error of law concerning bad faith or fraud".
In oral submissions, Mr Kitoko accepted that on 7 June 2018 he was asked by Harrison AsJ whether he was ready to proceed and that he answered yes. He submitted, however, that he believed he was required to proceed due to his lack of experience in court and because the orders made on 27 April 2018 provided that the hearing may proceed in his absence if he did not appear. Mr Kitoko submitted that he thought because he was already in court he did not have the right to adjourn and had to answer the Judge's questions.
Mr Kitoko also appeared to contend, at one point during oral submissions, that the bad faith also involved Harrison AsJ not referring the 19 April 2019 affidavit and 20 April 2018 written submissions to a registrar to determine if leave to file should be granted for them to be filed. This, however, was not the basis of appeal raised in ground 3 in the notice of motion to appeal.
In written and oral submissions, counsel for UTS argued that while Mr Kitoko asserted he was not ready to proceed at that time of hearing, he provided no evidence to support his contentions.

Consideration

There was no evidence before me that Mr Kitoko was suffering from any significant mental condition or disability on 7 June 2018, let alone one that interfered with his ability to represent himself on that occasion or that might have been obvious to an observer of the proceedings.
There was no evidence that the Associate Judge was informed, or was otherwise aware, that Mr Kitoko was suffering from such a condition on 7 June 2018. To the contrary, he had told her Honour on that day that he was ready to proceed.
Nothing in the material before me provides any support for contentions that Mr Kitoko suffered from a significant disability on 7 June 2018, that the Associate Judge was aware that Mr Kitoko suffered from a disability or that she knowingly took advantage of that fact to avoid addressing the question posed in his summons dated 12 October 2017. Her Honour's conduct of each of the hearings on 9 March, 27 April and 7 June 2018 indicated that she was concerned to ensure that Mr Kitoko received a fair hearing and was given the opportunity to consider and respond to the material relied upon by UTS. The reasons for judgment published on 11 July 2018 by Harrison AsJ are thorough and demonstrate that she approached the questions before her in good faith and conscientiously.
The allegation of bad faith against the Associate Judge is without foundation and should not have been made.
The appeal based on ground 3 must be rejected.

Submissions

Ground 4 raised the allegation that the Associate Judge had not acted impartially in considering the matter and there was a reasonable apprehension of bias on the part of the Associate Judge below, "with pre-judgment and mind closed to favour [UTS]". According to ground 4, this was because her Honour "deliberately": 1. relied on the affidavit of Mr Geng of 19 April 2018 and UTS's submissions of 20 April 2018, when they had not been filed within time, to determine the proceedings on the basis of issue estoppel; 2. misinterpreted the UTS rules or incorrectly applied those rules; 3. "ignored relevant material or relied on irrelevant material in a way that affected the exercise of her power in judicially reviewing the decision of UTS".
In written submissions, Mr Kitoko used headings in his submissions on ground 4 such as "Violation of the Constitution", "Failure to refer to the Rules of UTS" and "Unfairness". The submissions under these headings, however, in some instances repeated arguments relied on in relation to grounds 1, 2 or 3 and in others sought to challenge the FCC judgment and thus contend that no issue estoppel could arise because that decision was defective.
For example, Mr Kitoko's written submissions, under the heading "Violation of the Constitution", contended in effect that the FCC, in dismissing his application to that court, impermissibly purported to engage in judicial review of administrative decisions of UTS, a non-Commonwealth entity, and in doing so violated s 75 of the Commonwealth Constitution and committed an error of law as to its jurisdiction.
Under the heading "Failure to refer to the Rules of UTS", Mr Kitoko challenged the FCC decision, ultimately submitting that the Federal Circuit Judge in that case: "failed to identify any source of power in the UTS's Statutory Provisions, UTS's Regulations or UTS's Rules that enabled [UTS] to interpret and apply the evidences of [Mr Kitoko's] academic performance and dealing with the UTS over the period from 01 January 2010 to 10 August 2015 ….".
Under the heading "Unfairness", Mr Kitoko submitted that "Courts including Federal Circuit Court, Federal Court and NSW Supreme Court have shown unfairness in all proceedings." Mr Kitoko then outlined perceived unfairness in the conduct of proceedings in the FCC and Federal Court. In regards to the proceedings in this Court, Mr Kitoko raised three points. First, Mr Kitoko contended that he was denied access to justice when on 12 November 2018 a Registrar denied his application requesting the postponement of the filing fee necessary to initiate the present appeal on the basis the grounds of appeal were lacking legal merit. Mr Kitoko sought a review of that decision which was refused on 30 November 2018. Mr Kitoko said that he subsequently received funds from a Community Legal Centre to cover the filing fee.
Secondly, Mr Kitoko complained that at the hearing on 9 March 2018, UTS had failed to serve their bundle of materials as filed on 16 February 2018 and had removed their material from the court file. It can be noted at this point that on 9 March 2018 when Mr Kitoko indicated he had not received the materials relied on by UTS, the Associate Judge ensured that Mr Kitoko was provided a hard copy of those materials and adjourned the hearing to 27 April 2018 so Mr Kitoko had an opportunity to read those materials. There is no evidence before this Court, that UTS removed materials from the court file as Mr Kitoko asserted.
Thirdly, Mr Kitoko raised perceived unfairness in this Court in that at the directions hearing on 31 January 2019, it was said to have been discovered that his notice of motion filed 6 December 2018 and affidavit filed 22 January 2019 were not on the court file. Mr Kitoko filed an affidavit on 5 February 2019 to provide further copies of those materials.
Mr Kitoko's written submissions in this regard concluded: "62. On the basis of the above conducts, there is a reasonable apprehension of bias on the part of decisions taken in all court systems and in particular, in the NSW Supreme Court, with pre-judgment and mind closed to favour the defendant."

Consideration

The Associate Judge's having regard to the affidavit of Mr Geng of 19 April 2018 and UTS's submissions of 20 April 2018 does not give rise to any apprehension of bias on any reasonable basis in the circumstances of the present case.
Mr Kitoko has not sought to raise or drawn attention to any error on her Honour's part in relation to the interpretation or application of the UTS Student Rules on this appeal. There is no basis to conclude that the Associate Judge "misinterpreted the UTS rules or incorrectly applied those rules" in such a way that a fair minded lay observer might reasonably apprehend that she might not have brought an impartial mind to the resolution of the matter before her, so as to engage the principles in cases such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63.
As to the contention that the Associate Judge "deliberately ignored relevant material or relied on irrelevant material in a way that affected the exercise of her power in judicially reviewing the decision of UTS", this misunderstands the nature of the application before her Honour and is also without foundation. Mr Kitoko did not identify any material that she ignored that was relevant or any material that she relied upon that was irrelevant. No error on the part of the Associate Judge was identified. There is no basis to conclude that the decision was affected by bias as contended by Mr Kitoko in this regard.
None of the matters raised in the written submission referred to above establishes that the decision was affected by bias. Any challenges to the FCC judgment could have been the subject of an appeal to the Federal Court. There was no successful appeal against the FCC's judgment. The FCC's judgment could not be challenged in this Court.
The general matters of unfairness raised in relation to the FCC, the Federal Court and this Court do not provide any basis for a conclusion that the Associate Judge's decision was affected by bias or is liable to be set aside on the basis of bias or on any other ground.
Since there is no basis for a finding of bias on the part of the Associate Judge, the appeal based on ground 4 should be rejected.

Conclusion and orders

For the reasons given above, none of the grounds of appeal has any merit and the appeal should be dismissed with costs.
Accordingly, the orders of the Court are: 1. The time for the filing of the notice of motion to appeal is extended to 6 December 2018. 2. Appeal dismissed. 3. The appellant is to pay the respondent's costs, as agreed or assessed.

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: 23 October 2019

Solicitors: Barry Nilsson Lawyers (Respondent) File Number(s): 2017/308342 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2018] NSWSC 1007 Date of Decision: 11 July 2018 Before: Harrison AsJ File Number(s): 2017/308342

Nature of the appeal

An appeal from orders of an Associate Judge in a case such as the present is available as of right: CBX2 Pty Limited v National Australia Bank Limited [2016] NSWCA 79 (CBX2) at [7].
An appeal from an Associate Judge to a single Judge of the Court is governed by s 75A of the Supreme Court Act: CBX2 at [8]. Thus, the appeal is by way of rehearing and the Court has the power and duties of the Court from which the appeal is brought: Supreme Court Act s 75A(5), (6); CBX2 at [8].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)

Cited By (4)