Kitoko v University of Technology Sydney

Ferdinands v Registrar Burns (Vexatious Proceedings Order) [2024] FCAFC 157

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449

Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152

Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305

Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201

Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14

Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056

Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1119

Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2025] FCAFC 41

Kitoko v Sydney Local Health District "SLHD" ABN 17 520 269 052 & Ors [2024] HCASL 210

Kitoko v Sydney Local Health District [2017] NSWCATAD 209

Kitoko v Sydney Local Health District [2018] NSWCATAP 38

Kitoko v Sydney Local Health District [2018] NSWSC 1461

Kitoko v Sydney Local Health District [2023] NSWSC 898

Kitoko v Sydney Local Health District [2024] NSWCA 49

Kitoko v Sydney Local Health District [2025] FCA 914

Kitoko v University of Technology Sydney [2018] FCA 1004

Kitoko v University of Technology Sydney [2018] FCCA 699

Kitoko v University of Technology Sydney [2018] NSWSC 1007

Kitoko v University of Technology Sydney [2019] NSWSC 1437

Luck v Secretary, Services Australia (Vexatious Proceedings Order) [2025] FCAFC 103

McGinn v High Court of Australia (No 5) [2025] FCA 975

Nasir v Reynolds (Vexatious Proceedings Order) [2024] FCA 1194

Ogbonna v CTI Logistics Limited (No 6) [2022] FCA 615

Praljak v Office of the Australian Information Commissioner [2025] FCAFC 126

Sammut v Lawrence [2025] FCA 1040

Sandow v State Minister for the State of Queensland [2025] FCAFC 140

Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318

Storry v Parkyn [2024] FCAFC 67

Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 525

Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 4) [2024] FCA 675

Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75

ZDTV v Administrative Review Tribunal [2025] FCA 1150

UNIVERSITY OF TECHNOLOGY SYDNEY ABN 59 352 932 539

OFFICERS OF UNIVERSITY OF TECHNOLOGY SYDNEY: HUNG TAN NGUYEN, MEHRAN ABOLHASAN, PHYLLIS ANGUS, NICK SALOMON, SANDRA SCHUCK AND AHMED AL-ANI

MIRVAC REAL ESTATE PTY LTD ACN 003 342 452 (and others named in the Schedule)

1. Pursuant to s 37AO(2)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act):

(a) all current proceedings instituted by Mr Vangu Kitoko in this Court be stayed; and

(b) Mr Kitoko be prohibited from continuing any current proceedings in this Court without applying for and receiving leave to continue.

1. Pursuant to s 37AO(2)(b) of the Act, Mr Kitoko be prohibited from instituting proceedings in this Court without applying for and receiving leave in accordance with ss 37AR and 37AT of the Act.
2. Pursuant to s 37AO(2)(c) of the Act, at the time of filing any application pursuant to s 37AR of the Act, or any other application, Mr Kitoko pay the sum of $200 to the Registrar as security for costs, to be held by the Court in a non-interest-bearing account.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. On 8 August 2025, I delivered reasons for judgment on an application filed by the applicant (Mr Kitoko) in these proceedings which sought an extension of time and leave to appeal from a decision of the primary judge in Kitoko v University of Technology Sydney [2021] FCA 360 (the primary judgment or PJ): see Kitoko v University of Technology Sydney (No 3) [2025] FCA 915 (the refusal judgment or J).
2. In the refusal judgment, I made orders dismissing Mr Kitoko's application for an extension of time and leave to appeal from the decision of the primary judge in circumstances where, amongst other things, more than three years had elapsed since that decision was delivered and there was no adequate explanation for the delay.
3. In my reasons for judgment, I stated that I would consider making vexatious proceedings orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) for the reasons set out at J [74] and following. Namely, that Mr Kitoko had initiated and conducted more than 20 proceedings in various Australian courts without success. I therefore made orders allowing Mr Kitoko to file any affidavits and submissions he wished to make on or by 8 September 2025 (Order 3) and listed the matter for hearing.
4. Separately, on 8 August 2025, I also delivered reasons for judgment in proceedings NSD1595/2024 in which, pursuant to s 31A(2) of the FCA Act and r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) (the FC Rules), I summarily dismissed proceedings that Mr Kitoko had brought against, amongst others, the Sydney Local Health District: see Kitoko v Sydney Local Health District [2025] FCA 914 (the SLHD Summary Dismissal Judgment).
5. For the reasons set out below, I have decided that orders should be made under s 37AO of the FCA Act. Before addressing those reasons, it is necessary to set out a short background of the developments that have occurred since the refusal judgment.

1. Despite Order 3, Mr Kitoko did not file any submissions or affidavits or otherwise indicate to my Chambers that he sought to be heard by 8 September 2025.
2. On 19 September 2025, having not received any indication from Mr Kitoko as to whether he intended to file submissions, I instructed my Chambers to write to Mr Kitoko informing him that, if vexatious proceedings orders were made, they may have an impact on any current and future proceedings he sought to bring in this Court. In the interests of justice, and to ensure that Mr Kitoko had an opportunity to be heard, I also had my Chambers indicate that I had granted Mr Kitoko an extension of time to file submissions until 26 September 2025.
3. In the same communication, the respondents to the present proceedings were advised that leave had been granted for them to file submissions addressing whether orders should be made under s 37AO and, if so, what form such orders should take having regard to s 37AO(2)(a) and (b) of the FCA Act. Timetabling orders were made to this effect, and these orders relevantly included an order allowing Mr Kitoko to file submissions in reply to any submissions filed by the respondents by 24 October 2025.
4. On 26 September 2025, Mr Kitoko informed my Chambers that he had applied to the High Court for special leave to appeal from the entirety of the refusal judgment and stated that, in those circumstances, he did not consider it necessary to make any submissions as to whether vexatious proceedings orders should be made under s 37AO of the FCA Act.
5. On 10 October 2025, three sets of submissions were filed by respondents. These included the submissions of the first and second respondents, the seventh and eighth respondents, and the tenth respondent. The ninth respondent separately expressed agreement with and adopted the submissions of the other respondents.
6. On 24 October 2025, Mr Kitoko filed submissions as to why vexatious proceedings orders should not be made.
7. From the totality of the submissions filed by the parties, including those filed by Mr Kitoko, the following developments appear to have occurred:

(a) on or about 17 August 2025, Mr Kitoko lodged with the Registry of the Court a notice of appeal seeking to appeal from the orders made in the refusal judgment including Order 3;

(b) on 18 August 2025, an email was sent by Registry to Mr Kitoko, informing him that his notice of appeal could not be accepted for filing as the Court's appellate jurisdiction had been exhausted upon the delivery of the refusal judgment, and that to the extent he sought to appeal from this decision, he would need to approach the High Court;

(c) on 22 August 2025, Mr Kitoko filed a notice of appeal from the orders that I made in the SLHD Summary Dismissal Judgment; and

(d) on or about 9 October 2025, Mr Kitoko lodged an Interlocutory Application seeking a stay of Order 3 pending the determination of his intended appeal from the refusal judgment, which has not been accepted for filing.

1. In light of these developments, which were drawn to my attention in the parties' submissions, I informed the parties that I would hold an oral hearing on 19 November 2025. On that occasion, the respondent parties appeared, but Mr Kitoko did not do so.

3.1 The power to make vexatious proceedings orders

1. Section 37AO of the FCA Act empowers the Court to make a "vexatious proceedings order" against a person. The section provides as follows:

(1) This section applies if the Court is satisfied:

(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2) The Court may make any or all of the following orders:

(a) an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c) any other order the Court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3) The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a) the Attorney‑General of the Commonwealth or of a State or Territory;

(b) the Chief Executive Officer;

(c) a person against whom another person has instituted or conducted a vexatious proceeding;

(d) a person who has a sufficient interest in the matter.

(4) The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5) An order made under paragraph (2)(a) or (b) is a final order.

(6) For the purposes of subsection (1), the Court may have regard to:

(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b) orders made by any Australian court or tribunal; and

(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

1. As is evident, s 37AO(4) provides that the Court must not make an order under s 37AO(2) without hearing the person or giving the person an opportunity of being heard. In the present case, I am satisfied that Mr Kitoko has had ample opportunity to be heard in relation to the making of these orders. In August 2025, I foreshadowed in the refusal judgment that the circumstances warranted consideration of the appropriateness of vexatious proceedings orders and identified the circumstances that led me to form this view. I also drew Mr Kitoko's attention to relevant provisions of the FCA Act and the particular types of vexatious proceedings orders that the Court may make under ss 37AO(2)(a) and (b). I expressly noted (at J [82]) that, if orders were made, Mr Kitoko may be:

(a) prohibited from continuing any current proceedings in this Court without making an application for leave to continue them;

(b) prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act; and

(c) required to pay, at the time of filing any application pursuant to s 37AR of the FCA Act, or any other application, a sum of $200 to the Registrar as security for costs, to be held by the Court in a non-interest-bearing account.

1. Further to this, I provided Mr Kitoko with several opportunities to address the Court on the appropriateness of vexatious proceedings orders, including by granting him leave to file written submissions and by holding a hearing to give him a further opportunity to advance oral submissions about why such orders should not be made, and to address any further matters he considered relevant to the making of such orders. I have received and considered Mr Kitoko's written submissions as to why orders should not be made under s 37AO.

3.2 Types of vexatious proceedings orders that may be made

1. I recently addressed the types of vexatious proceedings orders that may be made by this Court as well as other relevant considerations in ZDTV v Administrative Review Tribunal [2025] FCA 1150 at [31]-[34]. For convenience, I briefly set out those principles again.
2. The Court may make one or more of the types of orders specified in ss 37AO(2)(a), (b) and (c) of the FCA Act. Such orders include ones to the effect that Mr Kitoko:

(a) be prohibited from continuing any current proceedings in this Court without making an application for leave to continue them;

(b) be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR; and

(c) at the time of filing any application pursuant to s 37AR, or any other application, must pay a sum that the Court considers appropriate.

1. The making of an order under s 37AO(2)(b) has the result that the person is precluded from instituting proceedings without the leave of the Court: see also s 37AQ(1)(a).
2. Although the making of orders under s 37AO may be regarded as an extreme step, their purpose is "not to bar vexatious litigants from instituting proceedings entirely or to impose punishment but to place prospective litigation under the control of the Court to protect the Court's processes against unwarranted usurpations of its limited resources": AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [133] (Raper J; Wigney and Lee JJ agreeing) citing Storry v Parkyn [2024] FCAFC 67 at [39] (Lee, Feutrill and Jackman JJ).
3. The Full Court's decision in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; 304 FCR 318 (Lee, Feutrill and Jackman JJ) contains a helpful summary of the principles relevant to the making of an order under s 37AO. In short, there are certain "cumulative conditions" that need to be satisfied to enliven the power to make such an order, being that the litigant has: (a) frequently, (b) instituted or conducted, (c) vexatious proceedings, (d) in Australian courts or tribunals: Storry at [20]. Most critically, to be satisfied that orders should be made, it is necessary to be satisfied that Mr Kitoko has instituted or conducted frequent proceedings in Australian courts or tribunals, and that they have been vexatious proceedings.
4. As is exposed by my reasons in the refusal judgment, there can be no doubt that Mr Kitoko has commenced many proceedings before Australian courts and tribunals. However, as in ZDTV, the real issues are whether they have been 'frequent' and whether they were 'vexatious'.
5. To address these issues, it is first necessary to summarise the various proceedings that Mr Kitoko has commenced.

4. THE HISTORY OF PERSISTENT AND VEXATIOUS PROCEEDINGS BROUGHT AND CONDUCTED BY MR KITOKO

1. Mr Kitoko commenced proceedings in this Court (NSD911/2020) against the respondents in which he advanced various claims as to breaches of contractual and fiduciary duties, negligence, and tortious conspiracies, as well as statutory claims for misleading or deceptive conduct and for unconscionable conduct. Each cause of action related, in one way or another, to certain events including:

(a) an incident in which Mr Kitoko claimed to have suffered an injury at the Broadway Shopping Centre on 5 October 2010 (Broadway Incident);

(b) the medical treatment he received following the Broadway Incident;

(c) the alleged falsification of evidence in the proceedings that he instituted in respect of the Broadway Incident, including in relation to CCTV footage of that Incident and the expert and other evidence that was adduced in those proceedings; and

(d) the discontinuance of his PhD candidature at the University of Technology Sydney.

1. The ten respondents to the instant proceedings are as follows:

(a) the University of Technology Sydney (UTS), the first respondent;

(b) various officers of UTS, specified as the second respondent, though comprising Professor Hung Tan Nguyen, Professor Mehran Abolhasan, Ms Phyllis Angus, Mr Nicky Salomon, Ms Sandra Schuck, and Mr Ahmed Al-Ani;

(c) Mirvac Real Estate Pty Ltd (Mirvac), the third respondent, which was the apparent operator of the Broadway Shopping Centre;

(d) Mr David Cooper, the fourth respondent, who was a lawyer of Mirvac;

(e) Access Group Solutions (Australia) Pty Limited (Access Group), the fifth respondent, which was the apparent provider of particular services at the Broadway Shopping Centre;

(f) DLA Piper Australia, the sixth respondent, who were the lawyers for Access Group;

(g) Sydney Local Health District (SLHD), the seventh respondent;

(h) officers of SLHD, specified as the eighth respondent, though comprising Ms Teresa Anderson and Mr Alexander Nguyen;

(i) the University of New South Wales (UNSW), the ninth respondent; and

(j) Community Migrant Resource Centre, the tenth respondent.

1. In the proceedings before the primary judge, Mr Kitoko filed four interlocutory applications seeking default or summary judgment against the respondents and, in turn, each of the respondents filed applications seeking summary dismissal, strike out and/or a permanent stay of the proceedings. It is these applications that the primary judge heard and determined in the primary judgment.
2. In the result, the primary judge concluded that all of Mr Kitoko's causes of action should be summarily dismissed, and, accordingly, dismissed the proceedings in their entirety: PJ [139]. As a result, the primary judge necessarily dismissed each of Mr Kitoko's interlocutory applications: PJ [140].
3. In the refusal judgment, I described the various proceedings that Mr Kitoko has initiated or conducted. For convenience and cohesion, I set these matters out again.

1. Many of Mr Kitoko's various claims and proceedings have as their impetus the Broadway Incident and the discontinuance of his PhD candidature at UTS. Subsequently, he has been involved in other proceedings involving different claims.

4.2.1 The District Court Proceedings and appeals from those Proceedings

1. In 2013, Mr Kitoko commenced proceedings in the District Court of New South Wales against Mirvac (now the third respondent) and Access Group (now the fifth respondent) seeking damages for personal injury allegedly suffered by reason of the Broadway Incident (District Court Proceedings). In those proceedings, Mr Cooper (now the fourth respondent) was a lawyer for Mirvac, and DLA Piper (now the sixth respondent) were the solicitors for Access Group. An employee of UNSW (now the ninth respondent), Associate Professor Mark Pickering, was a witness in those proceedings. A neurologist employed at Concord Public Hospital (CPH) by SLHD (now the seventh respondent), Dr Lord, who had treated Mr Kitoko, prepared medical reports which were before the District Court.
2. Separately to the District Court Proceedings, Mr Kitoko had lodged an internal appeal relating to the discontinuance of his PhD candidature.
3. The District Court Proceedings were dismissed with costs on 7 August 2015: Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152 (Elkaim SC DCJ) (Proceedings 1).
4. The primary judge observed that, during the trial in the District Court, CCTV footage demonstrated that Mr Kitoko had "simply walked into the pane of glass", rather than having slipped on a viscous substance on the floor due to negligence of the defendants, as was alleged by him: PJ [14]. The District Court also rejected claims made by Mr Kitoko that the CCTV footage had been falsified: PJ [14].
5. Mr Kitoko appealed from the decision of the District Court, but the Court of Appeal of New South Wales dismissed his application with costs: Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201 at [59] (Macfarlan JA, Sackville AJA and Garling J) (Proceedings 2).
6. On 16 November 2016, Mr Kitoko's application for special leave to appeal to the High Court was refused: Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305 (Gageler J, as his Honour then was) (Proceedings 3). Although the District Court Proceedings related to a different subject matter altogether to Mr Kitoko's complaints against UTS, the primary judge relevantly observed that in his application for special leave, Mr Kitoko asserted that since commencing the proceedings in the District Court, "Broadway Mirvac shopping centre lawyers have worked in collaboration with ... my PH.D main supervisor (Professor Hung Nguyen) at UTS for my punishment": PJ [16].

4.2.2 NSW Civil and Administrative Tribunal proceedings

1. In 2016, Mr Kitoko commenced proceedings under the Anti-Discrimination Act 1977 (NSW) in the NSW Civil and Administrative Tribunal (NCAT) against SLHD complaining that Dr Lord, as an employee of CPH (which is managed by SLHD), had engaged in conduct amounting to racial discrimination (Proceedings 4). Mr Kitoko alleged that Dr Lord had conspired with "Broadway" to falsify and/or deny him evidence in relation to his claim in the District Court Proceedings on the basis of his race: PJ [17].
2. On 27 June 2017, NCAT dismissed Proceedings 4 for lack of substance: Kitoko v Sydney Local Health District [2017] NSWCATAD 209 (Principal Member A Britton and General Member F Given). On 29 September 2017, a summons filed by Mr Kitoko on 24 July 2017 in the Supreme Court of New South Wales seeking leave to appeal from the NCAT decision was dismissed with costs: see Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [13]-[14] (Proceedings 5).
3. Mr Kitoko then sought to bring an internal appeal from the decision of NCAT in Proceedings 4. This was out of time and, on 6 February 2018, an NCAT Appeal Panel refused Mr Kitoko's application to extend the time to appeal, refused leave to appeal, and otherwise dismissed the appeal: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 (Principal Member K Rosser and Senior Member S Frost) (Proceedings 6).
4. On 2 October 2018, the Supreme Court refused Mr Kitoko's application for leave to appeal from the NCAT Appeal Panel decision to the Supreme Court with costs: Kitoko v Sydney Local Health District [2018] NSWSC 1461 (Lonergan J) (Proceedings 7).

1. In May 2016, Mr Kitoko brought proceedings (SYG 1158 of 2016) against UTS in the (then) Federal Circuit Court of Australia (FCCA), alleging breaches of the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth) in relation to the discontinuance of his PhD candidature (FCCA Proceedings or Proceedings 8).
2. On 28 March 2018, Judge Nicholls dismissed Proceedings 8: Kitoko v University of Technology Sydney [2018] FCCA 699. Mr Kitoko claimed that Professor Nguyen and other staff discriminated against him 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. Mr Kitoko alleged that 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 him. It was further alleged that Professor Nguyen colluded with Dr Lord and CPH, and that 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. It was also alleged that Professor Nguyen and CPH colluded with "Mirvac's network" (the operators of Broadway) to "discriminate, victimize and humiliate Mr Kitoko. Additionally, Mr Kitoko alleged that UTS's conduct, including the decision to discontinue his enrolment, could not have occurred in relation to any student with "different race, colour, descent or national or ethnic origin".
3. All of Mr Kitoko's claims were rejected. As the primary judge observed, the essential findings made by Judge Nicholls were as follows (at PJ [23]):

(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 [Mr Kitoko] was rejected. Judge Nicholls found that until about June 2013, Professor Nguyen had, among other things, supported [Mr Kitoko's] application for a six-month extension to his PhD scholarship, and from that time, it was [Mr Kitoko] 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 [Mr Kitoko] 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 [Mr Kitoko] in June 2015, which was after UTS had advised [Mr Kitoko] 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 [Mr Kitoko] was advised of the Appeals Committee decision.

1. The primary judge also placed reliance on other findings made by Judge Nicholls, as follows at PJ [24]-[29]:

1. 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 [Mr Kitoko's] PhD candidature be discontinued were reasonably available on the information before him (at [182]-[183]). In summary, those reasons were that:

(a) the [Mr Kitoko] had exceeded the maximum time for PhD candidature by one and half years; > > (b) the [Mr Kitoko] had received two successive unsatisfactory progress reviews; > > (c) the [Mr Kitoko] had produced a thesis unsuitable for examination; and > > (d) the [Mr Kitoko] had failed to produce, without sufficient explanation, necessary information to allow his thesis to be examined, despite being afforded multiple opportunities to do so.

1. At [190]-[196], Nicholls J made the following general remarks concerning [Mr Kitoko's] allegations (emphasis added): 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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". 7. 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. 2. 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]: 1. 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. 3. Judge Nicholls found at [219] that, based on the evidence before the FCCA, the cause of the discontinuance of [Mr Kitoko's] PhD candidature was his own inability to achieve satisfactory progress, despite the numerous opportunities given to him. 4. 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. 5. Having made such factual findings and after setting out the relevant legislation, Nicholls J concluded at [251] that [Mr Kitoko'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.
2. On 1 May 2018, Mr Kitoko filed a notice of appeal with the registry of this Court seeking to appeal from the decision and orders of Judge Nicholls. However, the application was filed outside the period prescribed by r 36.03(a) of FC Rules (which, at the time, was 21 days).
3. On 26 June 2018, Rares J dismissed Mr Kitoko's application for an extension of time: Kitoko v University of Technology Sydney [2018] FCA 1004 (Proceedings 9). At PJ [31]-[32], the primary judge relied upon the findings made by Rares J, especially those in which his Honour rejected as "fanciful" elaborate conspiracy theories that Mr Kitoko had advanced.

1. On or about 12 October 2017, Mr Kitoko commenced proceedings against UTS seeking judicial review of its decision to discontinue his PhD candidature on the grounds that it was in breach of the UTS Student Rules, and was tainted by fraud, collusion, and corruption (Proceedings 10). On 11 July 2018, this application was summarily dismissed with costs: Kitoko v University of Technology Sydney [2018] NSWSC 1007 (Harrison AsJ).
2. The primary judge relied on the fact that Harrison AsJ concluded that aspects of Mr Kitoko's application for judicial review should be dismissed on the basis of issue estoppel. These grounds concerned allegations of fraud, collusion and corruption by UTS and other persons not named as respondents, and allegations that Professor Nguyen had unfairly imposed two unsatisfactory progress reviews and discontinued Mr Kitoko's PhD. As the primary judge pointed out at [90]-[91], Harrison AsJ set out her conclusions concerning issue estoppel as follows:
   1. 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 [Mr Kitoko's] accident at Broadway.
   2. 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. Th at 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.
3. On 23 October 2019, Wright J dismissed Mr Kitoko's appeal from the decision of Harrison AsJ with costs: Kitoko v University of Technology Sydney [2019] NSWSC 1437 (Proceedings 11).

1. Mr Kitoko has also commenced or been involved in many other proceedings. By way of summary:

(a) on 1 July 2022, the Federal Circuit and Family Court of Australia (Division 2) made orders pursuant to s 486F of the Migration Act 1958 (Cth) requiring Mr Kitoko to pay the costs of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs by reason of Mr Kitoko contravening the prohibition against encouraging a litigant to commence or continue migration litigation that lacks reasonable prospects of success: Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 525 (Judge Laing) (Proceedings 12);

(b) on 19 October 2022, Mr Kitoko applied for an extension of time to appeal from the costs order made against him in Proceedings 12. This application was heard by Katzmann J. On 9 February 2023, her Honour dismissed Mr Kitoko's application and ordered that he pay the Minister's costs: Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75 at [48] (Katzmann J) (Proceedings 13);

(c) on 2 November 2022, Mr Kitoko commenced proceedings in the District Court (Proceedings 14) in which, amongst other things, he made allegations of medical negligence and tortious conspiracy against five defendants including the seventh and eighth respondents in the present proceedings;

(d) on 16 November 2022, Mr Kitoko commenced proceedings in this Court (NSD997/2022) (Proceedings 15) in which he made essentially the same claims as in Proceedings 14 and as against the same defendants. Mr Kitoko discontinued the proceedings on 31 March 2023;

(e) on 21 February 2023, Mr Kitoko filed an interlocutory application seeking orders settings aside the orders of Katzmann J in Proceedings 13 and remitting the application for an extension of time to a different judge of this Court (Proceedings 16). Amongst other things, Mr Kitoko alleged apprehended bias and that he had been denied procedural fairness. On 24 February 2023, a Registrar of this Court refused to accept the interlocutory application for filing pursuant to r 2.26 of the FC Rules on the ground that they were an abuse of process because they sought to set aside a judgment made by a single judge exercising the appellate jurisdiction of the Court (First Filing Refusal Decision);

(f) on 20 March 2023, Mr Kitoko filed an originating application seeking judicial review of the First Filing Refusal Decision. This application was heard and dismissed on 7 September 2023: Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056 at [44], [50] (Halley J) (Proceedings 17). In coming to this conclusion, Halley J reasoned that Mr Kitoko's interlocutory application had been lodged for filing after the orders of the appellate judge had been entered and that his application was therefore an abuse of process as the appellate jurisdiction of the Court had already been exhausted by the operation of r 39.04 of the FC Rules, which provides that the Court "may vary or set aside a judgment or order before it has been entered" (emphasis added);

(g) on 5 October 2023, Mr Kitoko lodged a notice of appeal seeking to challenge the decision of Halley J in Proceedings 17 (Proceedings 18);

(h) on 20 March 2023, the proceedings commenced in the District Court (ie, Proceedings 14**)** were transferred to the Supreme Court and, on 7 August 2023, were summarily dismissed: Kitoko v Sydney Local Health District [2023] NSWSC 898 (Fagan J) (SLHD SC);

(i) on 7 November 2023, Mr Kitoko filed a summons seeking leave to appeal from the decision of Fagan J which dismissed Proceedings 14. On 12 March 2024, the Court of Appeal dismissed this summons: see Kitoko v Sydney Local Health District [2024] NSWCA 49 (Ward P and Gleeson JA) (Proceedings 19). As will be addressed below, Mr Kitoko subsequently applied to the High Court for special leave to appeal from this decision;

(j) on 20 February 2024, the Full Court allowed Mr Kitoko's appeal in Proceedings 18 on a narrow and technical point of law: Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14 (Thawley, Cheeseman and Shariff JJ). In determining the appeal, the Full Court identified that, absent a direction under r 39.34 of the FC Rules, r 39.32(3) had the effect that an order is taken to be entered on the 14th day after the day the order was authenticated. Given no such direction had been made, the orders of Katzmann J in Proceedings 13 were taken to have been entered after Mr Kitoko had lodged his interlocutory application seeking to challenge those orders. As a result, the Full Court concluded that the interlocutory application was lodged within the narrow window of continued appellate jurisdiction and was therefore not an abuse of process;

(k) following the Full Court's decision, Proceedings 16 were then allocated to a different judge of this Court and, on 21 June 2024, the proceedings were dismissed for reasons including that Mr Kitoko had not substantiated his allegations concerning apparent bias and procedural fairness such that there was no reason to revisit the orders of Katzmann J in Proceedings 13: Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 4) [2024] FCA 675 (Burley J);

(l) on 4 July 2024, Mr Kitoko lodged an application for leave to appeal from the judgment of Burley J in Proceedings 16. On 10 July 2024, a Registrar of this Court refused to accept the relevant documents for filing on the basis that the appellate jurisdiction of the Court had been exhausted (Second Filing Refusal Decision);

(m) on 1 August 2024, Mr Kitoko filed an originating application seeking judicial review of the Second Filing Refusal Decision (Proceedings 20);

(n) on 6 September 2024, the High Court refused Mr Kitoko's special leave application in respect of the decision of the Court of Appeal in Proceedings 19: Kitoko v Sydney Local Health District "SLHD" ABN 17 520 269 052 & Ors [2024] HCASL 210 (Edelman and Jagot JJ) (Proceedings 21);

(o) on 26 September 2024, Mr Kitoko's application for judicial review in Proceedings 20 concerning the Second Filing Refusal Decision was dismissed: Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1119 (Nicholas J); and

(p) on 25 October 2024, Mr Kitoko filed a notice of appeal seeking to challenge the decision of Nicholas J in Proceedings 20. This application was dismissed by the Full Court on 2 April 2025: Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2025] FCAFC 41 (SC Derrington, Neskovcin and Vandongen JJ) (Proceedings 22).

1. In addition, as noted above, Mr Kitoko was unsuccessful:

(a) in the refusal judgment (Proceedings 23); and

(b) on all counts in separate proceedings that were heard concurrently with Proceedings 23 (NSD1595/2024) and resulted in the delivery of the SLHD Summary Dismissal Judgment (Proceedings 24). In the SLHD Summary Dismissal Judgment, I found that each of the claims Mr Kitoko sought to litigate amounted to an abuse of process and therefore determined that they must be summarily dismissed.

4.4 Current proceedings before the Court and applications lodged with Registry

1. As noted in Part 2 above, since the refusal judgment and the SLHD Summary Dismissal Judgment, Mr Kitoko has:

(a) lodged an application to this Court to appeal from the refusal judgment;

(b) lodged an interlocutory application seeking a stay of Order 3; and

(c) filed an application to this Court to appeal from the SLHD Summary Dismissal Judgment (Pending SLHD Proceedings).

1. In addition, Mr Kitoko indicates he has filed an application for special leave to appeal to the High Court from the refusal judgment.

1. In his written submissions, Mr Kitoko contends that no vexatious proceedings orders should be made against him for several, interrelated reasons:

(a) first, because his notice of appeal and interlocutory stay application - neither of which have been accepted for filing - have not been determined;

(b) second, because these applications raise "legitimate and serious questions of law" concerning statutory interpretation;

(c) third, because the Registry's "delay" in processing his appeal and stay application has prevented him from having these issues judicially determined within the prescribed timeframe;

(d) fourth, because he has acted in good faith and with diligence; and

(e) fifth, because the making of vexatious proceedings orders before the determination of his stay application and proposed appeal would cause substantial prejudice and render those applications nugatory.

1. In relation to all of these submissions, Mr Kitoko complains that his application to appeal the refusal judgment to this Court should have been accepted and not delayed. He contends that the effect of my refusal judgment was to summarily dismiss the whole of his proceedings which was a decision that is final in nature. He relies on the High Court's decision in Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 (Gibbs CJ, Mason and Murphy JJ) for this proposition_._ He contends that this decision stands for the proposition that a judgment that summarily dismisses the whole of a proceeding is final rather than interlocutory in nature where it finally disposes of a party's rights and extinguishes its claims.
2. The logic of Mr Kitoko's reliance on Carr and his argument is as follows. He submits that the primary judgment summarily dismissed all of Mr Kitoko's claims and the entirety of the proceedings and was therefore a final judgment. Accordingly, Mr Kitoko submits that he had a right of appeal by reason of s 24(1)(a) of the FCA Act, which confers jurisdiction on the Court to hear and determine an appeal from a decision of a single judge exercising the Court's original jurisdiction. In those circumstances, Mr Kitoko submits that he did not require leave to appeal from the primary judgment and the prescribed timeframe in which an appeal could be brought was 28 days pursuant to r 36.03(a) of the FC Rules as opposed to the 14 days in which an applicant must file an application for leave to appeal under r 35.13(a) of the FC Rules. Mr Kitoko further identified that he had filed a notice of appeal on 11 May 2021, which was within 28 days of the delivery of the primary judgment (having been delivered on 15 April 2021) and despite this being within time, Registry refused to accept the notice of appeal.
3. Mr Kitoko's complaints as to delay are misconceived and his reliance on Carr is misplaced. Both matters fail to appreciate the applicable statutory framework. In particular, Mr Kitoko's reliance on Carr exhibits a failure to appreciate that regardless of how the primary judgment is characterised at common law, the judgment is deemed, or characterised, by statute to be interlocutory for the purposes of ascertaining the procedural requirements that condition this Court's appellate processes and an individual's rights of appeal: see generally Sandow v State Minister for the State of Queensland [2025] FCAFC 140 at [19] (Murphy, Longbottom and Hill JJ).
4. Specifically, Mr Kitoko has overlooked s 24(1D)(b) of the FCA Act. This provides that a summary judgment granted under s 31A of the FCA Act is taken to be an interlocutory judgment for the purpose of s 24(1A). In turn, s 24(1A) provides that an appeal shall not be brought from a judgment referred to in s 31A(1) that is an interlocutory judgment unless the Court gives leave to appeal, subject to two exceptions identified in s 24(1C) which are both irrelevant for present purposes.
5. Sections 24(1A) and 24(1D) were both introduced into the FCA Act by amending legislation enacted in 1984 and 2009 respectively: see Praljak v Office of the Australian Information Commissioner [2025] FCAFC 126 [32]-[36] (Mortimer CJ, Colvin and Thawley JJ). Both amendments relevantly post-date the High Court's decision in Carr. As for s 24(1D), this provision was implemented following the passage of the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth). The Explanatory Memorandum to that Bill relevantly addressed s 24(1D) at [86] and then identified at [87] that there were "differences in the case law about whether particular decisions are interlocutory or final for the purposes of determining appeal rights" and that ss 24(1B), (1C), (1D), and (1E) were "intended to provide greater certainty about appeal rights and reduce costs currently incurred in litigating these matters". In this sense, the provisions were directed at remedying the precise mischief identified by the High Court in Carr: at [2] (Gibbs CJ), [12] (Mason J).
6. The upshot of all this is that Mr Kitoko was required to seek leave to appeal from the primary judgment by reason of ss 24(1A) and 24(1D)(b), that he failed to do so within 14 days as prescribed by r 35.13, and that in hearing and determining his applications for an extension of time and for leave to appeal, the Court exercised its appellate jurisdiction consistent with ss 25(2)(a) and (b). As Registry advised, the Court's appellate jurisdiction was exhausted following the delivery of the refusal judgment and any appeal from that decision could only be heard by the High Court. In the circumstances, Mr Kitoko's notice of appeal was properly not received for filing by Registry. There was no delay on the part of Registry, who appropriately advised Mr Kitoko within one day of the lodgement of his notice of appeal.
7. Mr Kitoko's interlocutory stay application was lodged on 9 October 2025. As the previous iteration of the FC Rules applied, the jurisdiction of this Court was exhausted on 22 August 2025, being 14 days after the authentication of the orders in the refusal judgment: r 39.32(3) of the FC Rules. Mr Kitoko's application was lodged after this time. There is no jurisdiction to hear such an application. Mr Kitoko's submission that Registry's "delay" in accepting this application for filing has prevented him from having it determined within the prescribed timeframe is therefore without foundation. His application was too late.
8. The final strand of Mr Kitoko's submissions is that substantial prejudice would result if vexatious proceedings orders were made before the determination of his interlocutory stay application and proposed appeal. This submission presumes the Court has jurisdiction to determine these applications and is predicated on the correctness of Mr Kitoko's characterisation of the primary judgment and the applicable legislative provisions and rules. As his underlying submissions are misconceived, all that remains is to consider whether vexatious proceedings orders are appropriate in all the circumstances.

1. I am satisfied that there is overwhelming evidence that Mr Kitoko has commenced or conducted proceedings in this Court and in other courts and tribunals in Australia, including the High Court of Australia, the Court of Appeal of New South Wales, the Supreme Court of New South Wales, the District Court of New South Wales, the Full Court of the Federal Court of Australia, the Federal Circuit and Family Court of Australia, and NCAT.
2. Further, I am satisfied that the history of the various proceedings that Mr Kitoko has commenced or conducted discloses that they have been a frequent occurrence. The meaning of the word "frequently" is relative and is contextualised by the procedural history of the proceedings under consideration. The word takes its ordinary meaning and is to be compared to the former O 21, r 1 of the Federal Court Rules 1979 (Cth) (repealed) which imposed a "higher threshold of the need to establish that vexatious proceedings had been conducted 'habitually, persistently and without reasonable grounds'". In other words, the use of the term "frequently" under s 37AO(1)(a) "imports a lesser test" than its predecessor: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [111] (Perry J). In HWY Rentals, Perry J reasoned that:
   1. The term "frequently" is a relative term and "must be looked at in the context of the litigation being considered": Attorney General (NSW) v Gargen [2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the Court may find that a person has instituted or conducted vexatious proceedings "frequently" even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 (Fuller) at [77] (Barker J).
   2. Thus in Fuller, for example, the applicant against whom a vexatious proceedings order under s 37AO was made had commenced five separate proceedings over a period of approximately five years. Having regard to the circumstances and the conduct of those various proceedings, Barker J was satisfied that the applicant had "frequently" instituted and conducted proceedings of the type contemplated by s 37AO notwithstanding that "the number of proceedings may be considered small". Similarly, in Jones, in determining whether the applicant had "frequently" instituted proceeding for the purposes of former O 63, r 6(1) of the High Court Rules, Toohey J held that the five proceedings initiated by the applicant during a six year period "readily answer[ed] that description".
   3. In short, there being no numerical threshold prescribed by Part VAAA itself, the question of whether an applicant has "frequently" instituted or conducted vexatious proceedings for the purposes of s 37AO must be answered in the circumstances of the particular case.

1. Although s 37AO orders have been made against individuals who have commenced more proceedings than Mr Kitoko, the authorities make clear that numerical comparisons are not dispositive. Most of Mr Kitoko's proceedings under consideration largely related to or branched off from proceedings in which Mr Kitoko sought redress from perceived wrongs associated with the Broadway Incident or the discontinuance of his PhD candidature. As has been observed by several judges, Mr Kitoko has persistently sought to relitigate or reagitate these issues in successive proceedings undeterred by and without regard to the many judgments delivered by judges of this Court and other courts.
2. I am also satisfied that the proceedings that Mr Kitoko has commenced have been vexatious proceedings: see, generally, Cull v Singh [2024] FCA 258 at [59]-[69] (Snaden J). This is so for several reasons.
3. First, Mr Kitoko has repeatedly made baseless or unmeritorious claims. It has been said that vexatiousness lies just as equally in the hopelessness of the causes that a person has routinely prosecuted. The above overview of the numerous proceedings demonstrates that Mr Kitoko has habitually advanced propositions that are either inadequately drawn or upon which he has no reasonable prospect of succeeding. As Judge Nicholls identified, several of Mr Kitoko's claims are fanciful and proceed on the basis that numerous individuals from unrelated organisations colluded to harm him without any foundation for such an allegation: see PJ [23]. Moreover, like in Ferdinands v Registrar Burns (Vexatious Proceedings Order) [2024] FCAFC 157 (Cheeseman, Goodman and McEvoy JJ), several of Mr Kitoko's various submissions, arguments, and claims are "largely prolix, irrelevant and are directed to relief beyond the jurisdiction of the Court": Ferdinands at [52].
4. A common theme in the various decisions is that Mr Kitoko's claims lack cogent legal and evidentiary foundations. Several decisions have found Mr Kitoko's pleadings to be incompetent or otherwise entirely lacking in merit or baseless: see, for example, SLHD SC at [54]-[55], [58]-[60]; see also the SLHD Summary Dismissal Judgment. Mr Kitoko's arguments are often difficult to follow and contain logical leaps and legal misconceptions. For example, in the proceedings dismissed by the SLHD Summary Dismissal Judgment, Mr Kitoko sought compensation from the respondents in respect of wrongful conduct alleged against an unrelated individual and an unrelated entity, neither of which were parties to the proceedings: SLHD Summary Dismissal Judgment at [68] and again at [71]. As the Full Court stated in Storry, "trying to understand them and make them comprehensible causes considerable Court time to be consumed and directed to no useful end". Mr Kitoko has continually shown that he is unable and unwilling to properly plead a case.
5. Second, Mr Kitoko repeatedly collaterally attacks adverse decisions. He has displayed an unmistakable tendency to relitigate matters that have been decided adversely to him, and several judges have noted that the proceedings concern the same or similar fact pattern and have been prosecuted for the better part of a decade: see Kitoko v Sydney Local Health District [2024] NSWCA 49 (Ward P and Gleeson JA) at [4]. For example, in the SLHD Summary Dismissal Judgment, I identified that the claims contained in Mr Kitoko's pleading were nearly identical to those pleaded in earlier proceedings determined by Fagan J in the Supreme Court: SLHD Summary Dismissal Judgment at [130] and following. Mr Kitoko made no attempt to rectify the many defects in his pleadings that were identified by Fagan J before relitigating those matters before this Court: SLHD Summary Dismissal Judgment at [137]. Mr Kitoko has also demonstrated a tendency to seek judicial review of decisions made by Registry in respect of procedurally defective document filings and substantively hopeless collateral challenges to decisions of this Court: see the First and Second Filing Refusal Decisions referred to at [49(e)] and [49(l)] above. He has also exhibited a tendency to challenge resultant decisions upon judicial review: see Proceedings 17 and 20 referred to at [49(f)] and [49(m)] above.
6. Third, Mr Kitoko has repeatedly made extravagant and scandalous claims. The summary of proceedings set out above discloses that he has regularly made serious allegations. He has alleged various conspiracies, none of which were properly pleaded. This includes allegations that a range of unrelated individuals colluded to victimise and humiliate him, and to harm the progression of his education on the grounds of his race or ethnic origin and his asserted disabilities. He has also made speculative claims of physical and sexual assault against medical professionals without any evidentiary basis whatsoever. These are grave allegations, and Mr Kitoko has made no satisfactory attempt to substantiate them. Several judges have criticised Mr Kitoko for advancing baseless allegations of this nature.
7. Fourth, there is no doubt in my mind that the various proceedings that Mr Kitoko has brought are an abuse of process. In one way or another, Mr Kitoko has sought to re-agitate and ventilate complaints about the discontinuance of his PhD candidature and his medical treatment following the Broadway Incident. Mr Kitoko has well and truly had his day in various courts seeking redress for perceived wrongs without any success. Despite this, he continues to complain about them.
8. Fifth, I am satisfied that Mr Kitoko is likely to persist in making baseless claims which burden the Court. Unless a s 37AO order is made there is every indication that he will persist in commencing unmeritorious proceedings. These various misconceived and baseless proceedings have resulted in expense, burden, inconvenience, and even disruption to the efficient management of the Court's business, which must be controlled. Like the appellant in Ferdinands, Mr Kitoko "has had his day in court - he has in fact had numerous days in court, and more than ample opportunity to pursue any legitimate claims (and rights of appeal) that may have been available to him": Ferdinands at [49]. As the recent developments addressed at the beginning of this judgment demonstrate, Mr Kitoko appears to be resolute in his conviction to forge onwards with what Fagan J aptly described as his "barrage of misconceived, futile and publicly damaging litigation" without heed of any judgment of any court: SLHD SC at [72].
9. I am satisfied that Mr Kitoko has exhausted the legitimate limits of pursuing his claims. By persistently making unmeritorious applications, which has necessitated dozens of hearings, Mr Kitoko has deprived other litigants of the Court's time. No person is "entitled to another person's day in Court to pursue quixotic and misconceived complaints": Storry at [74] (Lee, Feutrill and Jackman JJ). Furthermore, it is significant that another superior court of record has contemplated the appropriateness of making vexatious proceedings orders against Mr Kitoko: see SLHD SC at [72]-[80].
10. Taking these reasons together, I am satisfied orders should be made.
11. As to the form and content of the orders, it important to observe that s 37AO of the FCA Act permits the Court to make "an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court". The words, "proceedings of a particular type" are defined in s 37AM(1) to include "proceedings in relation to a particular matter" and "proceedings against a particular person".
12. In their written submissions, the first, second, seventh, and eighth respondents all contended that the Court should make orders in a general form rather than tailoring the orders to apply to proceedings in relation to a particular matter or against a particular person.
13. I am satisfied that the more general order in the form should be made. In Ferdinands, the Full Court considered it appropriate to make an order in "general terms" as opposed to one "limited to proceedings of a particular type" having regard to "the many different ways in which Mr Ferdinands has sought to frame the proceedings he [had] instituted over the years" and the inefficacy of a previous order of the Court "limited by reference to subject matter": Ferdinands at [60]. Although no previous orders have been made against Mr Kitoko, he has over the course of the many proceedings he has commenced framed his case in various ways (albeit with similar themes and similar respondents). As the history of Mr Kitoko's litigation demonstrates, he has made ever-so-subtle attempts to seek to distinguish his past claims, even though they all relate to one or other of a few related subject matters. Moreover, given Mr Kitoko's demonstrated inability to conform to or abide by the basal strictures of pleading, and his propensity to make scandalous claims, it is appropriate that he be prohibited from commencing any new proceedings without leave.
14. In my view, the mechanism which requires Mr Kitoko to seek leave to commence future proceedings is an appropriate filter and will not prevent any new claim of "substance" from being commenced by him in relation to the same or different subject matter. This accords with the observation made by the Full Court in Luck v Secretary, Services Australia (Vexatious Proceedings Order) [2025] FCAFC 103 at [49] (Rofe, Hespe and Kennett JJ). It is also consistent with several recent decisions of this Court orders in general terms: Ogbonna v CTI Logistics Limited (No 6) [2022] FCA 615 at [32] and Order 1 (Colvin J); Cull v Singh [2024] FCA 258 at [71] and Order 1 (Snaden J); Nasir v Reynolds (Vexatious Proceedings Order) [2024] FCA 1194 at [90] and Order 1 (Lee J); Ezekiel-Hart v Council of the Law Society of ACT (Vexatious Proceedings Order) [2025] FCA 551 at [78] and Order 1 (Needham J); McGinn v High Court of Australia (No 5) [2025] FCA 975 at [18] and Order 1 (Jackman J); Sammut v Lawrence [2025] FCA 1040 at [199] and Order 2 (Raper J). See also the proposed orders in AZO24 at [136].
15. A separate matter which requires specific consideration in the instant case is that Mr Kitoko does have current proceedings pending in the Court. Specifically, as noted above, Mr Kitoko has filed a notice of appeal in respect of the SLHD Summary Dismissal Judgment which thereby initiated the Pending SLHD Proceedings (being NSD1476/2025). In those proceedings, Mr Kitoko seeks to challenge my decision in the SLHD Summary Dismissal Judgment. I do not consider that this fact necessarily precludes me from making an assessment as to whether an order should be made in relation to whether a vexatious proceedings order should be made that has the effect of staying Mr Kitoko's appeal from one of my judgments.
16. Jackman J considered a similar situation in McGinn v High Court of Australia (No 5) [2025] FCA 975 at [22]:

I am conscious that I am the trial judge against whose decisions those appeals have been brought, but my mind has been open to persuasion by Ms McGinn that I may have erred in some way in making those decisions. Ms McGinn's written submissions have not exposed any such error. I reject Ms McGinn's submission that I raised the question of whether to make a vexatious proceedings order for the wrongful purpose of preventing her from appealing against my decisions. However, I am now firmly of the view that none of Ms McGinn's underlying proceedings, nor her appeals from my decisions in respect of them, raise any contention which could reasonably be seen as having any realistic prospect of leading to a decision in Ms McGinn's favour.

1. In the present case, I too have been conscious that I am the trial judge against whose decision an appeal has been brought, but my mind has been open to persuasion to a different course of action. In their written submissions, the respondents' position was that the Court should order that all current proceedings be stayed, including the Pending SLHD Proceedings. I tested these submissions during the course of the oral hearing and considered other alternative courses that I could take. However, after considered reflection, I do consider it appropriate that the Pending SLHD Proceedings before the Court should be stayed. That is so for the following reasons:

(a) Mr Kitoko has attempted to file a notice of appeal from the refusal judgment, which was incompetent and, in my view, was correctly not accepted for filing by the Registry of the Court on the basis that the appellate jurisdiction of this Court has been exhausted;

(b) in any event, Mr Kitoko has filed an application with the High Court for special leave to appeal from the refusal judgment and the determination of that application will be unaffected by any orders that I make;

(c) on its face, the notice of appeal that Mr Kitoko has filed from the orders that I made in the SLHD Summary Dismissal Judgment also appears to be incompetent as the orders that I made were in the nature of summary dismissal, which requires leave to appeal, with no appeal arising as a matter of right;

(d) in any event, if I make an order that the Pending SLHD Proceedings be stayed subject to the grant of leave, Mr Kitoko will nevertheless have a right to seek leave to continue with his appeal from the SLHD Summary Dismissal Judgment, which will be a matter that will be independently considered on its merits.

1. The course that I propose to take is consistent with the approach taken by the Full Court in Luck v Secretary [2025] FCAFC 103 (Rofe, Hespe and Kennett JJ).
2. For the foregoing reasons, I will order that:

(a) pursuant to s 37AO(2)(a) of the FCA Act:

(i) all current proceedings instituted by Mr Kitoko in this Court be stayed; and

(ii) Mr Kitoko be prohibited from continuing any current proceedings in this Court without applying for and receiving leave to continue;

(b) pursuant to s 37AO(2)(b) of the FCA Act, Mr Kitoko be prohibited from instituting proceedings in this Court without applying for and receiving leave in accordance with ss 37AR and 37AT of the FCA Act; and

(c) pursuant to s 37AO(2)(c) of the FCA Act, at the time of filing any application pursuant to s 37AR of the FCA Act, or any other application, Mr Kitoko pay the sum of $200 to the Registrar as security for costs, to be held by the Court in a non-interest-bearing account.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.

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