(c) Federal Circuit Court proceedings
19 In May 2016, the applicant brought proceedings against the first respondent (UTS) in the Federal Circuit Court, alleging breaches of the Racial Discrimination Act 1975 (Cth) (RD Act) and Disability Discrimination Act 1992 (Cth) (DD Act) in relation to the discontinuance of his PhD candidature (FCCA Proceedings). These proceeding were brought by way of an application pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), after the Australian Human Rights Commission (AHRC) informed the applicant on 11 March 2016 that no further action would be taken in relation to his AHRC complaint.
20 On 28 March 2018, Nicholls J dismissed the applicant's proceedings: Kitoko v University of Technology Sydney [2018] FCCA 699. On 26 June 2018, Rares J dismissed an application for extension of time in which to file a notice of appeal from the Federal Circuit Court to the Federal Court: Kitoko v University of Technology Sydney [2018] FCA 1004 (FCA Proceedings). It will be necessary to set out the findings of Nicholls J and Rares J in some detail, as these decisions form a primary basis for the interlocutory applications filed by the respondents, in which they allege that the current proceedings are an abuse of process or give rise to issue estoppel and/or Anshun estoppel.
21 After setting out the procedural history to the FCCA Proceedings, Nicholls J at [12]-[51] comprehensively outlined the relevant factual background to the dispute concerning both the discontinuance of the applicant's PhD candidature and the Broadway Incident. The following factual matters outlined by Nicholls J in relation to the discontinuance of the applicant's PhD candidature are reproduced by way of summary, noting that they form a large part of the factual matrix surrounding the applicant's allegations in the present proceeding:
The applicant enrolled as a PhD student in the Faculty of Engineering and Information Technology at UTS in January 2010, to be supervised by Professor Hung Nguyen. The applicant was awarded a UTS doctoral scholarship for a period of three years, being until December 2012.
Between January 2010 and June 2013, Professor Nguyen considered that the applicant was making "satisfactory progress" in his PhD research.
In November 2012, the applicant, with the support of Professor Nguyen, applied for a six month extension to his PhD scholarship.
In the Spring 2013 Progress Report, Professor Nguyen recorded that the applicant was making "satisfactory progress".
By January 2014, the applicant had exceeded the maximum four year period for completing his PhD pursuant to the UTS Student Rules. The applicant applied in March and June 2014 for extensions to his PhD candidature, which were granted.
From Autumn 2014, Professor Nguyen expressed concerns regarding the applicant's "unsatisfactory progress".
In August and October 2014, a series of meetings were held by UTS staff, including Professor Nguyen, Associate Professor Abolhasan (the applicant's Responsible Academic Officer) and Ms Phyllis Agius (a UTS Research Administration Officer) concerning the applicant's PhD candidature, some of which were conducted with the applicant present. While Nicholls J noted some dispute between the parties as to the objective of the 8 October meeting (at [23]), a meeting was held then between Associate Professor Abolhasan, Professor Nguyen and the applicant with the apparent purpose of working out a way the applicant could complete his thesis by December 2014. The minutes of that meeting record that the applicant agreed to provide to UTS, in the next couple of weeks, a demonstration of his research system and methodology, including information around protocol and proof of ethics clearance for researching human subjects.
On 12 December 2014, Associate Professor Abolhasan sent an email to the applicant outlining that, contrary to what was agreed at the 8 October 2014 meeting, the applicant had not provided a demonstration of his research system and methodology, and had failed to complete a Spring 2014 Progress Report.
On 18 December 2014, the applicant attempted to submit his thesis to the Graduate Research School (GRS) for examination without a Supervisor's Certificate from Professor Nguyen as required.
On 18 February 2015, a further meeting was held between the applicant, Professor Nguyen, Associate Professor Abolhasan and Ms Aki Plume, Manager at GRS. According to the minutes of the meeting the applicant indicated he did not have the necessary equipment to progress his research, to which Professor Nguyen asserted that he could arrange for the necessary "sensor" to be provided to the applicant if he stated what he needed. Associate Professor Abolhasan asserted that this was applicant's final opportunity.
By 4 March 2015, Mr Kitoko applied for and was provided with the "sensor" referred to at the 18 February 2015 meeting.
On 13 March 2015, the applicant submitted an application for a further extension of his PhD candidature to the Dean of the GRS.
Between mid-March 2015 and early April 2015, Ms Agius, on behalf of Associate Professor Abolhasan, unsuccessfully attempted to organise another meeting with the applicant, with the applicant advising he was unavailable.
On 8 April 2015, by letter and email the applicant was advised that his PhD candidature was under review and "may be discontinued".
On 15 April 2015, the applicant re-submitted his thesis to the GRS.
On 27 April 2015 and 4 May 2015, two meetings were held between the applicant, Professor Nguyen, Associate Professor Abolhasan and other relevant UTS staff members. At those meetings, the applicant alleged that due to a software upgrade on the computer on which he was using for his PhD research, "all data stored from the computer (including the raw supporting data generated from [his] experiments) were lost".
On 14 May 2015, the IT department at UTS advised that the applicant's computer had been "re-imaged" on 9 March 2015 and that the applicant had been warned to back-up his computer prior to the upgrade.
On the same day, Associate Professor Abolhasan wrote to the Dean of GRS recommending that the applicant's PhD candidature be discontinued.
On 19 May 2015, the applicant was advised that his enrolment had been discontinued.
On 5 June 2015, the applicant appealed the decision to discontinue his enrolment to the Appeals Committee.
On 7 August 2015, the Appeals Committee advised the applicant that at a meeting of the Appeals Committee on 3 August 2015 it was decided that his appeal be dismissed.
On 12 August 2015, the applicant lodged a complaint with the NSW Ombudsman, but was advised on 3 February 2016 that no further action would be taken.
22 With the factual summary as outlined above (as well as the matters the subject of the District Court Proceedings) in mind, the claims for relief sought by the applicant under the RD Act and DD Act in the FCCA Proceedings were based on the following broad factual propositions:
(a) Professor Nguyen, alone and with other staff, discriminated against the applicant on the grounds that he is a "black African" and that he is "disabled in the brain, hands and feet" as a result of the Broadway Incident. The applicant claimed the discontinuation of his PhD thesis was "unfairly imposed" on him by Professor Nguyen on the basis of this discrimination, as well as that it caused Professor Nguyen to effectively abandon his supervision, restrict and deny access to facilities and services, and physically threaten the applicant (at [52]-[55]).
(b) Professor Nguyen colluded with Dr Lord and CPH, and CPH discriminated against him on the basis of race, in circumstances where, after the events in question, Professor Nguyen's son was offered, and appointed to, a position at CPH as a reward for the alleged collusion (at [56]).
(c) Professor Nguyen and CPH colluded with "Mirvac's network" (the operators of Broadway) to "discriminate, victimize and humiliate" the applicant (at [57]).
(d) UTS's conduct, including the decision to discontinue the applicant's enrolment, could not have occurred in relation to any student with "different race, colour, descent or national or ethnic origin" (at [58]).
23 Judge Nicholls wholly rejected the applicant's factual propositions in support of his claims for relief under the RD Act and DD Act. In particular, his Honour rejected the following matters advanced by the applicant:
(a) The allegation that Professor Nguyen had colluded with Mirvac was rejected because "[o]n their face, such assertions of collusion by individuals across a number of large and separate organisations, and in the circumstances presented, simply in order to humiliate or victimise Mr Kitoko, could be described as fanciful. However, the substance of the allegations for current purposes must arise from the evidence that is before the Court. It is here that one particular weakness of Mr Kitoko's case is revealed" (at [73]).
(b) The allegation that Professor Nguyen had abandoned supervision of the applicant was rejected. Judge Nicholls found that until about June 2013, Professor Nguyen had, among other things, supported the applicant's application for a six-month extension to his PhD scholarship, and from that time, it was the applicant himself who had ignored or failed to comply with reasonable requirements for his academic progress, which was not the result of a lack of supervision (at [82] ff).
(c) The allegations that Professor Nguyen had told the applicant not to come into his office because he was allegedly the "least intelligent student" he had encountered in his academic careers, and that Professor Nguyen had physically threatened him on 18 February 2015, if they were indeed true (which was not accepted), amounted to racial or disability discrimination.
(d) The proposition that a $500 payment made by UTS to the applicant in June 2015, which was after UTS had advised the applicant that his PhD had been discontinued, in some way made the discontinuance decision inoperative or was somehow evidence of discrimination.
(e) The proposition that the minutes of the Appeals Committee were fabricated, on the basis that the minutes were not finalised until 10 August 2015, three days after the applicant was advised of the Appeals Committee decision.
24 Of particular importance to the present proceeding, Nicholls J also found that each of the four reasons advanced by Associate Professor Abolhasan for recommending that the applicant's PhD candidature be discontinued were reasonably available on the information before him (at [182]-[183]). In summary, those reasons were that:
(a) the applicant had exceeded the maximum time for PhD candidature by one and half years;
(b) the applicant had received two successive unsatisfactory progress reviews;
(c) the applicant had produced a thesis unsuitable for examination; and
(d) the applicant had failed to produce, without sufficient explanation, necessary information to allow his thesis to be examined, despite being afforded multiple opportunities to do so.
25 At [190]-[196], Nicholls J made the following general remarks concerning the applicant's allegations (emphasis added):
190. As set out above, and as against this background, in essence, the entirety of Mr Kitoko's case is that Professor Nguyen was responsible for, and acted to cause, the discontinuance of his Ph.D. candidature. The assertion is that Mr Nguyen was motivated to do so, and engaged in various conduct to that end, because he racially discriminated against Mr Kitoko (because he was a "black man" or a "black African"), and did so in the knowledge that Mr Kitoko had suffered injuries, and had a disability, as a result of an accident in 2010.
191. In short, Mr Kitoko's view of relevant events, and his belief that Professor Nguyen engaged in some "collusion" with various parties, is simply an expression of Mr Kitoko's opinion and is not supported by the evidence before the Court. There is nothing in the evidence to support Mr Kitoko's belief that Professor Nguyen, and for that matter, anyone else at UTS, acted adversely to Mr Kitoko's interests because, or for reason of, his being a "black African" or for any putative disability.
192. It may be unpalatable for Mr Kitoko to accept that on the evidence before the Court, the reason for the discontinuance of his Ph.D. candidature, endorsed on appeal by the committee, was his own failure to achieve satisfactory academic progress and the continuing failure to address deficiencies in his thesis when these were brought to his attention.
193. It must also be said that parts of Mr Kitoko's submissions go beyond being characterised as simply lacking any probative evidence, to being described as "fanciful". These were matters in which, in particular, he sought to pursue in cross examination of Professor Nguyen.
194. As set out above, Mr Kitoko believes that Professor Nguyen was part of the Mirvac network. Mr Kitoko's proposition was that Professor Nguyen's son was employed by the CPH as a "reward" for Professor Nguyen's "collusion" with Mirvac, in ensuring the cessation of Mr Kitoko's Ph.D. candidature.
195. The "scheme" envisaged by Mr Kitoko is that Dr Lord, who was employed at the CPH, and had previously treated Mr Kitoko, and who had also "discriminated" against Mr Kitoko because he was a "black African", was also a part of the "Mirvac network", and this meant that somehow Professor Nguyen's son secured employment at the hospital as a result of this "scheme".
196. Even if this entire proposition had some rational basis (which it does not), on the evidence before the Court, it still does not establish, let alone indicate, that Professor Nguyen discriminated against Mr Kitoko because he was a "black African". Even within its own "logic", Mr Kitoko's asserted "scheme" proposes that Professor Nguyen was motivated not by racial reasons, but to obtain a "reward" for his son.
26 With respect to the alleged conspiracy between the so-called "Mirvac network", Nicholls J found at [104] that "[t]he parallel drawn by Mr Kitoko in the absence of any other evidence, to support the various iterations of his claim that a number of people have "colluded" to discriminate against him, must be rejected on any reasonable or rational view of the evidence". To similar effect, Nicholls J concluded at [218]:
218. The state of the evidence before the Court is such that it cannot be said there is any substance to the claim of a "Mirvac network" or "collusion". The breadth of this claim, the involvement of such a large number of parties, and institutions, that otherwise have no relevant established links, supports the view that the claim has no inherent credibility.
27 Judge Nicholls found at [219] that, based on the evidence before the FCCA, the cause of the discontinuance of the applicant's PhD candidature was his own inability to achieve satisfactory progress, despite the numerous opportunities given to him.
28 These findings of Nicholls J with respect to the "Mirvac network" are significant, as the parties who in the FCCA Proceedings were said to constitute this network of collusion, as best can be ascertained, include the third to tenth respondents in the present proceeding, among others.
29 Having made such factual findings and after setting out the relevant legislation, Nicholls J concluded at [251] that the applicant's allegation that UTS had breached ss 9, 11, 17, 18C and 27 of the RD Act, and ss 22(2) and 42 of the DDA should be dismissed.
30 On 1 May 2018, the applicant sought to file in this Court a notice of appeal from the FCCA Proceedings. This was outside the 21 day period prescribed by r 36.03(a) of the 2011 FCRs. While accepting the applicant's explanation for the delay as a result of various medical issues, UTS opposed the grant of leave on the basis that "such an appeal could not realistically succeed".
31 In refusing to extend time, Rares J considered and agreed with the primary relevant findings of fact made by the primary judge. In particular, Rares J rejected at [9]-[11] what his Honour described as the applicant's "elaborate conspiracy theory":
9 Mr Kitoko developed an elaborate conspiracy theory that his Honour described as "fanciful", for reasons which appear to me to be insusceptible of attack on the appeal. The alleged conspiracy involved Mr Kitoko asserting that Professor Nguyen's conduct towards him was motivated by the professor's reaction to Mr Kitoko's complaint that Concord Private Hospital, at which he sought treatment, had discriminated against him in circumstances where, after the events in question, the professor's son had been offered, and appointed to, a position.
10 Mr Kitoko also alleged that Professor Nguyen had colluded with Mirvac, against which Mr Kitoko had brought compensation proceedings based on his accident in Broadway shopping centre that the District Court of New South Wales ultimately dismissed. The Court of Appeal of the Supreme Court of New South Wales dismissed Mr Kitoko's appeal from the decision. His Honour said:
"On their face, such assertions of collusion by individuals across a number of large and separate organisations, and in the circumstances presented, simply in order to humiliate or victimise Mr Kitoko, could be described as fanciful. However, the substance of the allegations for current purposes must arise from the evidence that is before the Court. It is here that one particular weakness of Mr Kitoko's case is revealed."
11 After examining those allegations in detail, his Honour found that Mr Kitoko's conspiracy theory was fanciful. I agree.
32 At [28]-[30], Rares J stated his conclusions with respect to the application for an extension of time:
28 The draft notice of appeal sets out numerous findings of fact that Mr Kitoko wishes to challenge as erroneous. He has appeared and ably represented himself and put all of the arguments that could be put, for the purposes of seeking to establish that there was sufficient merit to warrant his case being granted leave.
29 Essentially, Mr Kitoko is seeking to challenge virtually all of the trial judge's findings of fact at which he arrived after seeing and hearing witnesses, including Mr Kitoko, based on, essentially, Mr Kitoko's interpretations or assertions of those errors. Mr Kitoko did not point to any incontrovertible facts, uncontested testimony or other objective evidence of what had occurred that showed any possibility of error by the trial judge in his findings of fact. Nor did Mr Kitoko identify any basis on which he could contend that his Honour's findings were susceptible to an attack as "glaringly improbable" or "contrary to compelling inferences". In my opinion, there is no reasonable prospect that any such challenges could possibly succeed: see Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at 558-559 [43] per French CJ, Bell, Keane, Nettle and Gordon JJ.
30 In those circumstances, I am satisfied that Mr Kitoko's proposed appeal appears to be flimsy and weak on its merits and not such as would justify a grant of an extension of time. I order that the application for an extension of time be dismissed with costs.