Vangu Kitoko v State of New South Wales

Supreme Court of NSW|2021-05-14|Before: Adams J, Wright J

Judgment (revised from ex tempore)

By amended summons, filed on 22 February 2021, Vangu Kitoko seeks judicial review of an administrative decision of the Prothonotary not to grant him fee relief to appeal to the Court of Appeal against the decision of Wright J: Kitoko v University of Technology Sydney [2019] NSWSC 1437.
The first defendant is the State of New South Wales. The second defendant is the decision-maker, who has filed a submitting appearance. She is the Prothonotary, Ms Rebel Kenna.
By notice of motion filed on 5 March 2021, the State seeks an order under r 13.4 of Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that these proceedings be summarily dismissed. Although relief was initially claimed in the alternative under UCPR r 14.28, that alternative order was not ultimately sought. I will return to the reasons for that below.
By notice of motion filed on 12 May 2021, Mr Kitoko seeks a number of orders but, primarily, that the State's notice of motion not be heard because it is unlawful; and that instead a timetable be set for the substantive proceedings he has brought in relation to the decision of Ms Kenna.
At the hearing today, Ms Wootton of counsel appeared for the State, the applicant on the first notice of motion, instructed by the Crown Solicitor's Office. Mr Kitoko appeared unrepresented.
Shortly after the hearing commenced, and without notice prior to today, Mr Kitoko sought an adjournment alleging that he was not aware of the State's submissions. He spent most of the day arguing why it would be unfair for him to be forced to respond to the State's notice of motion until he had an opportunity to provide written submissions himself. For reasons which will appear below, I indicated to him that I would not be giving him an adjournment in order to provide written submissions in response to the State's motion.
I shall return to the allegations of unfairness levelled against me by Mr Kitoko further below as well.

The evidence

In support of the State's notice of motion the State read an affidavit from Sophie Maltabarow, dated 22 March 2021. The exhibit to her affidavit, SM1, was tendered and became exhibit A. Some emails proving the service of the submissions on Mr Kitoko were marked exhibit B. Mr Kitoko was afforded the opportunity to read those documents. I went through all of them with him before he agreed that he had all the documents in exhibit A and had no objection to them being before me. He also had no objection to the tender of Ms Maltabarow's affidavit. Her affidavit simply sets out the procedural history of the matter.
In support of Mr Kitoko's notice of motion, dated 12 May 2021 and filed on 14 May 2021, he relied upon his own affidavit of the same day. He also relied upon an earlier affidavit, sworn on 28 April 2021, explaining his delay in prosecuting these proceedings for judicial review.

The procedural history

It is necessary to set out the procedural history of this matter in some detail.
On 12 October 2017, Mr Kitoko filed a summons seeking judicial review of the decision of the University of Technology Sydney to discontinue his enrolment in a Doctor of Philosophy degree.
On 11 January 2018, Harrison AsJ summarily dismissed that summons: Kitoko v University of Technology Sydney [2018] NSWSC 1007. Mr Kitoko appealed that decision.
On 23 October 2019, Wright J dismissed Mr Kitoko's appeal: Kitoko v University of Technology Sydney [2019] NSWSC 1437.
On 22 January 2020, Mr Kitoko filed a fee accommodation application to the Supreme Court. By his application he sought to pay by instalment the $3,474 filing fee imposed by the Court for a plaintiff seeking to appeal to the Court of Appeal. The proposed notice of appeal sought to set aside the decision of Wright J.
On 23 January 2020, the Registrar of the Court of Appeal refused to grant the fee accommodation application. His decision was emailed to the plaintiff, Mr Kitoko, that day.
On 28 January 2020, Mr Kitoko sought a review of that decision. On 4 February 2020, the Prothonotary of the Supreme Court affirmed the Registrar's decision. She determined that request for review in accordance with the provisions set out in the Attorney General's Guidelines for the waiver, remission and postponement of fees; a copy of those guidelines was before me.
On 18 February 2020, Mr Kitoko filed a second fee accommodation application. By this application he sought to pay by instalment the filing fee imposed by the Court to seek judicial review of Ms Kenna's decision not to allow his review of the decision of the Registrar of the Court of Appeal to refuse him fee accommodation.
On 20 February 2020, Registrar Walton refused that second fee accommodation application.
On 28 February 2020, Mr Kitoko sought a review of Registrar Walton's decision. There was then some considerable delay until 7 January 2021 at which time Principal Registrar D'Aeth approved the reduction of the filing fee and fee accommodation arrangement for the judicial review proceedings, the subject of the notice of motion before me today.
On 18 January 2021, Mr Kitoko filed his judicial review summons in the present proceedings. On 22 February 2021, he filed an amended summons. It is those proceedings that the State seeks summary dismissal of today.
On 1 March 2021, there was a directions hearing. Mr Kitoko appeared at that directions hearing, as did a solicitor from the Crown Solicitor's Office. The following orders were made: "1. The first defendant is to file and serve any notice of motion seeking a summary dismissal or strike out by 8 March 2021; and 2. The first defendant is to file and serve evidence and written submissions by 22 March 2021."
The matter was stood over for further directions until 29 March 2021. I pause to note that the fact that orders were made on 1 March 2021 to enable the filing of the notice of motion to seek summary dismissal satisfies me that from 1 March 2021 Mr Kitoko was on notice that the State sought summary dismissal of these proceedings.
On 29 March 2021, there was no appearance by Mr Kitoko at the directions hearing but he had emailed the Registrar to indicate he would be unable to appear for medical reasons. The matter was stood over for directions on 6 April 2021.
On 6 April 2021, there was again no appearance of Mr Kitoko at the directions hearing. He had, again, informed the Court that he was unable to attend for medical reasons. The matter was stood over for further directions on 19 April 2021.
Mr Kitoko did not appear at the directions hearing on 19 April 2021 either and nor did he provide any explanation to the Court as to why he did not do so. Accordingly, the following orders were made on that day: "1. That Mr Kitoko file and serve all evidence and submissions in answer to the notice of motion filed on 5 March 2021 by 3 May 2021. 2. The matter was stood over for directions hearing on 7 May 2021. 3. A letter under 13.6 of the UCPR was to be sent to Mr Kitoko; liberty to apply is also granted."
Subsequent to those orders being made, Mr Kitoko filed an affidavit of 28 April 2021 setting out the health issues that had prevented him from attending court. His history included that he had presented at Canterbury Hospital Emergency Department on 21 March 2021 with pain in his right kidney. He was discharged into the care of his GP that day. On 22 March 2021, he presented to the St George Hospital Emergency Department and was treated for his kidney issue and discharged on 24 March 2021. On 13 April 2021, Mr Kitoko attended St George Hospital day surgery to be treated for the kidney stone. On 19 April, he attended St George Hospital again to have that stent removed.
At the next directions hearing, on 7 May 2021, Mr Kitoko appeared. Orders were made that Mr Kitoko was to file and serve any evidence and submissions in opposition to the notice of motion by 12 May 2021 and that the hearing date of 14 May 2021 of two hours was confirmed.
During the submissions today, Mr Kitoko sought to clarify what occurred on that date. His version is not necessarily inconsistent with the orders reflected on the court file. His position was that on that day he informed the Registrar that he did not mean to provide submissions, instead he wished to file a notice of motion explaining how the State's notice of motion was illegal or, to use the language of Mr Kitoko, he relied upon a "legality" argument. His version of what happened was that the only reason that the Registrar made an order that he was to file any submissions was if he wanted to, but he was under no obligation to do so.
It was consistent with those orders made on 7 May 2021 that Mr Kitoko filed a notice of motion and an affidavit in support on 12 May 2021. As I have already indicated, the orders sought therein were that I would not hear or allow the State's notice of motion because it was unlawful and further orders in relation to the future timetabling of the matter.

Mr Kitoko's submissions

Mr Kitoko's primary submission is that I could not hear the notice of motion today because he was not afforded the opportunity to put in written submissions. At the outset of the hearing today I indicated to Mr Kitoko the procedure that I would adopt for the hearing, given that he was an unrepresented litigant. I indicated to him that, if he was to make submissions that were either non-responsive to questions I asked or repetitive of submissions that he had already made, I would interrupt him to ask him to focus on the questions that I was asking him. I indicated that at the outset, so that there would be no misunderstanding later on during submissions was it to be perceived that I was in any way preventing Mr Kitoko from making his submissions.
This matter was listed for two hours. It is now 4pm. The reason the matter has taken so long is that I indicated to the parties that I proposed to sit to 4pm to ensure that Mr Kitoko could receive a fair hearing.
The court time from 10am until 11.30am was spent with Mr Kitoko making submissions about why it was not fair that the hearing would proceed today and by me going through the relevant documents with Mr Kitoko in order to establish that all of the documents annexed to Ms Maltabarow's affidavit were those which he either authorised or already had a copy of. During morning tea, I invited Mr Kitoko to read paragraphs 21 to 30 of the written submissions, as I indicated that was the nub of the complaint made by the State.
Court adjourned for morning tea for half an hour. Mr Kitoko was 15 minutes late coming back to court but indicated that he had had the opportunity to read those submissions. He then repeated his adjournment application that it would be unfair for him to have to respond to them orally and that he needed to respond in writing. He continued to make submissions of a similar nature.
It became clear, just before the luncheon adjournment, that Mr Kitoko's main objection to the notice of motion was that UCPR r 14.28 only applies to proceedings commenced by a statement of claim and judicial review proceedings were not of that nature.
When Court resumed after the luncheon adjournment at 12.50pm, the time until 3pm was spent with Mr Kitoko making a number of submissions. During those submissions he repeated his point on numerous occasions that he wanted to put in written submissions. He accused me of being unfair. He accused me of being the only Judge out of all of the proceedings he has commenced in the District Court, the Federal Court and this Court to be unfair to him. At one stage he marched out of the Court. At one stage when he was telling me how unfair I was he wagged his finger at me. On another occasion when I requested that he refer to his own document, the amended summons seeking judicial review, he refused to do so despite numerous requests to do so.
When I was able to focus his attention on the questions I was asking him about his argument he submitted the following.
First, that he was not aware of any case law where proceedings for judicial review had ever been struck out under UCPR r 13.4. He submitted that the onus was on the State to provide him with those cases before they filed the notice of motion.
Second, he submitted that the State should not be bringing these proceedings because the Supreme Court is funded by the Attorney General and it is the Attorney General who is seeking, by notice of motion, that these proceedings be dismissed.
He then made a submission I found somewhat difficult to understand, but in some way he compared these proceedings with how the internal review proceedings at the University of Technology Sydney were conducted.
He then submitted that by way of analogy in the Federal Court where the Administrative Decisions (Judicial) Review Act 1977 (Cth) is applicable I should extend him fairness.
When he finally agreed to answer questions I raised about his amended summons, he submitted that the fact that there had been delay in obtaining the fee relief for these proceedings (that is, his second application) has meant that he can now never continue with his PhD. He submitted that that delay of ten months, which occurred after the decision the subject of his judicial review, has caused him considerable unfairness and thus is relevant to the proceedings I am considering today.
Significantly, Mr Kitoko submitted that UCPR r 14.28 could not apply to these proceedings because UCPR r 14.1 provides that that part only pertains to proceedings commenced by a statement of claim.

The State's submissions

The State relied upon its written submissions. It opposed any adjournment and relied upon the chronology, which I have already summarised, to submit that there was no procedural unfairness in this matter.
In response to the specific allegation as to UCPR r 14.28 it was conceded that that provision may not apply and given that it was the alternative relief sought, that aspect of the notice of motion was not pressed.
As to Mr Kitoko's request that he be provided with cases where there has been summary dismissal of judicial review proceedings, Ms Wootton provided the Court with four cases as follows: Boris Reznitsky v Roads & Traffic Authority of New South Wales & Ors [2011] NSWSC 775; Housfeld v Commissioner of Police [2018] NSWSC 1540; Potkonyak v Attorney General of NSW [2019] NSWSC 987; and Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 346. The decisions were subsequently provided to Mr Kitoko.
On behalf of the State Ms Wootton did not dispute the fact that as an administrative decision made by a Registrar of the Court, judicial review in this Court in its supervisory jurisdiction is available.

Procedural fairness

Before turning to consider the respective submissions, it is necessary to first consider the allegation of a denial of procedural fairness that was levelled at me on a number of occasions throughout the day by Mr Kitoko. I am satisfied that Mr Kitoko was not denied procedural fairness by my decision to hear the State's notice of motion today.
I have a number of difficulties with the assertion that Mr Kitoko was not unaware of the State's submissions until today. I have arrived at that conclusion for a number of reasons.
First, he was on notice from 1 March 2021 that the State had been ordered to file its motion and to file its submissions by 22 March 2021.
Secondly, despite the fact that he denies ever receiving them, when confronted with proof that it was the case, he acknowledged that he in fact was emailed them.
Thirdly, he submitted that he was well aware of how court procedure works, given how much litigation he has commenced over the years. He submitted that he is fully aware that correspondence is by way of email and that regard has to be had to that.
Fourthly, he was able to prepare a lengthy affidavit on 28 April 2021; to prepare another affidavit on 12 May 2021; to prepare a notice of motion on 12 May 2021; to send emails to the Court before the first two mentions on 29 March and 6 April 2021 notifying the Court that he would not be able to attend those directions hearings; and otherwise has always communicated with the Court by way of email. As he indicated, he is someone aware of the need for certain procedures to be taken before a hearing can be conducted.
In those circumstances, I am unable to accept that he did not know that the State was due to serve its submissions by 22 March 2021 and that he agreed for this matter to be listed for final hearing without those submissions having ever been filed. The fact that he was required to file submissions that he relied upon as the respondent on 7 May 2021 is another factor consistent with him being aware that the State had already filed submissions in this matter.
For these reasons I do not accept that he has been denied procedural fairness by not having the opportunity to consider the State's submissions. Rather, he indicated to the Registrar on 7 May 2021 that he wished to take a different approach which was to prove that the State's notice of motion was "illegal". He has made that submission a number of times today, that is; that he challenges the "legality" of the notice of motion. The record of what took place on 7 May 2021 before the Registrar is consistent with him being told that he had the opportunity to file written submissions and him making a forensic decision not to do so.
In concluding that I am not satisfied that any rules of procedural fairness required me to adjourn the matter today I have had regard to the submissions made by Mr Kitoko. As I have already indicated, a number of allegations were made to the effect that he had never experienced the unfairness I had shown him today by not giving him another adjournment. He explained that he had been involved in various pieces of litigation and had never received such unfairness and that, although he had never won any of those proceedings, at least they were fair and if he lost today it would not be fair.
Mr Kitoko relied heavily on the fact that he had suffered from a kidney stone during part of the period of March and April. He relied upon the matters contained in his affidavit of 28 April 2021, to which I have already referred. I accept the assertions made in his affidavit about his kidney stone. A kidney stone is a very painful thing, but his medical problems do not explain why he was able to put on so many other court documents and chose not to respond to the submissions made by the State nor does it explain why he was unable, for some reason, to access his emails even though he was using his email before and after that time.
Later in the day, he relied upon his lack of English as a reason why it would be unfair for me not to adjourn the matter. It is to be accepted that English appears to be his second language. However, the proceedings have been brought by Mr Kitoko. I have already set out the procedural history and on every occasion he has been able to bring proceedings, unrepresented; and make submissions and file affidavits and other court documents. I am unable to accept that his lack of English is a reason why he could not provide written submissions today.
It is always difficult for a Judge when an unrepresented litigant accuses them of being unfair. I have given the allegation by Mr Kitoko careful consideration. Upon being satisfied that the matter should proceed to hearing today, I took a number of steps to ensure that he was afforded every possible procedural fairness. As I have already stated, this two hour hearing has lasted nearly all day. I have adjourned the matter so that he can read certain documents and I have offered to explain matters to him. On a number of occasions when I invited submissions from him he refused to respond. I am satisfied that he had every opportunity available to him. The fact that he did not avail himself of all of them does not mean that these proceedings were unfair.

The amended summons

The amended summons, itself, is in these terms: "ORDERS SOUGHT An order that the appeal (Judicial Review) be allowed An order setting aside the decision made by the Director & Prothonotary of the Sydney Registry, NSW Supreme Court on 04 February 2020. An order that the Plaintiffs application to pay by instalment the $3,474.00 filing fee payable to file a Notice of Appeal to the court of appeal be allowed. The Defendants to pay the costs and damages. DETAILS OF DECISION The decision maker was Mr. R. H. Kenna, the Director & Prothonotary of the Sydney Registry of NSW Supreme Court. The decision to be reviewed was the refusal of the Plaintiff's application to pay by instalment the $3,474.00 filing fee payable to file a Notice of Appeal to the court of appeal. The reasons for refusal are that the matter in the Plaintiff's summons dated 12 October 2017 and the Plaintiffs Notice of Appeal is challenging a decision relating to a civil right with no money claim and is not thus satisfying the conditions in s. 101 (2)(r) and thus the plaintiff must file a leave to appeal instead of notice of appeal. If the plaintiff maintain that the notice of appeal should be filed, the plaintiff may do so upon payment of the filing fee. The plaintiff seeks relief from the whole of the decision. GROUNDS This Review is brought under section 65 and 69 of the Supreme Court Act 1970, and part 59 of the uniform civil procedure rule 2005 Ground 1 of this review grounds, that the Plaintiff's application for filing fee was lodged on 28 February 2020 and the Registry of NSW Supreme Court has approved it on 7 January 2021. More that eleven (11) months of delay to respond, instead of two to five days as in the rules, is unreasonable. The Plaintiff contends this unreasonable delay caused by Registry of NSW Supreme Court is an error of jurisdiction caused by abuse of process. The decision of Mr. R. H. Kenna, the Director & Prothonotary of the Sydney Registry of NSW Supreme Court should therefore be dismissed. In case the Court will be minded to judicially review the decision of Mr. R. H. Kenna, Ground 2 of this review grounds, that the matter in the Plaintiff's summons dated 12 October 2017 in the NSW Supreme Court provided for judicial review of the decision taken by University of Technology Sydney (UTS) by way of the specific remedies, known as the 'prerogative writs' of certiorari (to quash a decision). In that, the NSW Supreme Court has discretionary powers or jurisdiction in relation to the award of costs limited to the costs incurred in bringing the review application, but not in relation to the award of any kind of damages. The decision of Mr. Kenna to refuse the Plaintiff's application based on money value of the plaintiff claim and quantum of damages was an error of consideration, or, in fact, it is an error of law. In case the determination of money value of the plaintiff claim and quantum of damages should be considered, Ground 3 of this review grounds, that Mr. Kenna failed to discharge the burden of proof by indicated that the plaintiff's matter is challenging a decision relating to a civil right. Mr. Kenna's decision failed to prove any basis for the determination of the quantum of damages. That is the Registry of NSW Supreme Court has calculated the money value of the plaintiff claim and quantum of damages is lower than $100,000 or nil. Mr. Kenna's has therefore failed to provide evidences to support the reasons of his decision. The making of factual findings and the drawing of inferences by Mr. Kenna in the absence of evidences is an error of law. Ground 4 of this review grounds, that while the plaintiffs matter is not challenging a decision relating to a civil right and relates to a money claim, Mr. Kenna erred in law by applying the incorrect test with the terms of the subsection 101 (2)(r) of the Supreme Court Act 1970 that appear on the face of the record or otherwise failing to comply with the terms of the applicable legislations. Ground 5 of this review grounds is that Mr. Kenna erred in law by failing to take into account in his decision that both considerations, the civil right issue and sub-section 101 as specific source of power, were not available on reasons or evidences raised from Ms Dyer's original decision or are new materials that appear on the face of the record. Failure to give the plaintiff an opportunity to respond to the presence of new materials is a denial of procedural fairness, or of natural justice. This amounts to error of law."

Consideration

The principles in relation to summary dismissal of proceedings are well settled. Before a court would dismiss proceedings summarily, it must be satisfied that the proceedings are so obviously untenable that it cannot possibly succeed, are "manifestly groundless" or so manifestly faulty that they do not even admit an argument: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Dey v Victorian Railways Commissioner (1949) 78 CLR 62.
In Dey v Victorian Railways Commissioner, Dixon J observed that before summary intervention can be justified the case must be a very clear one and there must be no real question of fact or law to be determined.
In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal (per Macfarlan JA with whom Beazley P and Ward JA agreed) observed at [3]: "The High Court decision in Spencer v The Commonwealth (2010) 241 CLR 118 [2010] HCA 28; was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a 'fanciful' prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24])."
I have had regard to those principles. They clearly state that I would not dismiss these proceedings simply because I thought there was a weak case. I would have to be satisfied that it did not disclose any jurisdictional error or any error of law.
On the face of the amended summons the problems with it are apparent.
The first ground contends for error, which must be jurisdictional error or on the face of the record, by virtue of the fact that subsequent to the decision there was delay in his second fee accommodation application. I am satisfied that such a ground has not and cannot have any prospects of success.
Ground 2 is somewhat difficult to ascertain. On the face of it, it suggests that the Registrar erred in finding that under s 101 of the Supreme Court Act 1970 (NSW) this was the type of appeal, that being the appeal against Wright J's decision, that required leave. When I pressed Mr Kitoko today as to what his position was, he conceded that leave was required but went on to submit that the delay was so unfair because he can never get a PhD again. When I sought to focus those submissions on the actual document itself, he again accused me of being unfair and explained that he needed to go through the long history of the matter again in order to address my questions on that ground. Ultimately, he made no submissions about the remaining three grounds.
Grounds 3 and 4 also seem to dispute the finding of Ms Kenna that this was not a money claim, whereas ground 5 refers to an allegation of a denial of procedural fairness in relation to a decision of a non-employee of the Court, which again does not speak to the error of Registrar Kenna in her decision of 18 February.
I have given this matter careful consideration, as I have already indicated. It is only in clear cases that matters such as this are summarily dismissed. I have also had regard to the fact that Mr Kitoko was actually correct; the alternative relief sought by the State under UCPR r 14.28 does not apply to judicial review proceedings. It was on that basis that that aspect of the relief was not pressed. I have given consideration as to whether Mr Kitoko may have been distracted by the fact that his argument in relation to the alternative relief sought was one with some merit.
However, the fact remains that Mr Kitoko has brought these initial proceedings and, even giving every accommodation possible for a person who is unrepresented, I am satisfied that the high standard that is required from the decisions, to which I have already referred, has been met in this case.
I am satisfied that the proceedings should be summarily dismissed under UCPR r 13.4.
At the beginning of the hearing today I sought confirmation from Mr Kitoko that if that course was to be taken then his notice of motion would have no effect. The order in which those two motions were to be heard was initially going to be sequential. However, the thrust of Mr Kitoko's arguments today ultimately addressed the issue raised in his notice of motion such that I was able to hear both of them concurrently. In relation to his claim the State ultimately did not press its alternative relief.
In addition to the order that the proceedings are dismissed and the State's notice of motion is successful I also order that Mr Kitoko's notice of motion be dismissed.

ORDERS

My orders are as following: 1. The first defendant's notice of motion dated 5 March 2021 is granted. 2. The proceedings for judicial review commenced by amended summons filed on 18 February 2021 be summarily dismissed pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). 3. The plaintiff's notice of motion filed on 14 May 2021 is dismissed. 4. The plaintiff is to pay the costs of the first defendant.

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: 18 May 2021

Administrative Decisions (Judicial) Review Act 1977(Cth)

Federal Court Act 1976(Cth)

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