Kitoko v Sydney Local Health District

[2023] NSWSC 898

Supreme Court

New South Wales

Medium Neutral Citation:

Kitoko v Sydney Local Health District [2023] NSWSC 898

Hearing dates:

26 July 2023

Date of orders:

7 August 2023

Decision date:

07 August 2023

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

(1) Judgment for the defendants on the plaintiff’s claims pursuant to s 13.4 of the Uniform Civil Procedure Rules.

(2) The plaintiff’s amended notice of motion filed on 24 May 2023 and his notice of motion filed on 25 July 2023 are dismissed.

(3) The plaintiff is to pay the defendants’ costs of the proceedings in the District Court and in this Court including the costs of all notices of motion.

(4) Leave is granted to the defendants to apply for a specified gross sum costs assessment pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) by serving upon the plaintiff and delivering to the Associate to Fagan J, by 11 August 2023, a written submission confirming that a specified gross sum is sought and explaining the basis of calculation of the amount claimed, together with an affidavit substantiating the costs incurred.

(5) In the event of an application by the defendants for a specified gross sum being lodged with the Associate and served upon the plaintiff, the plaintiff may respond with written submissions and affidavit evidence, to be served upon defendants and delivered to the Associate by 25 August 2023.

(6) Note that any application for a specified gross sum of costs will be determined on the papers.

Catchwords:

TORTS — negligence — medical negligence — alleged breach of common law duties with respect to hospital advice and treatment — summary dismissal – no challenge to hospital records contradicting claim – no expert medical opinion served with statement of claim contrary to r 31.36 of the Uniform Civil Procedure Rules — claim incapable of substantiation by evidence — bald assertions in pleadings and affidavits – claim dismissed

TORTS — economic torts — conspiracy — summary dismissal — deficient pleading — failure to plead essential element — elements of offence refuted by unchallenged hospital records — claim summarily dismissed

CIVIL PROCEDURE — opposing applications for summary judgment and summary dismissal — no real question to be tried — plaintiff’s factual allegations incapable of being established at trial in face of unchallenged hospital records — proceedings dismissed

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Ansett Transport Industries (Operations) Pty Ltd v Australian Federation Of Air Pilots (No 2) [1991] 2 VR 636

Ballard v Multiplex Ltd [2008] NSWSC 1019

Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678

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 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 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

Kitoko v University of Technology Sydney [2021] FCA 360

Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159

Lonrho Plc v Fayed [1992] 1 AC 448

McKellar v Container Terminal Management Services Ltd [1999] FCA 1101

McKernan v Fraser (1931) 46 CLR 343; [1931] HCA 54

Mohareb v Palmer (No 2) [2020] NSWCA 324

Palmer v Mohareb [2019] NSWSC 975

Viavattene v Attorney General (NSW) [2015] NSWCA 44

Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51

Category:

Procedural rulings

Parties:

Vangu Kitoko (plaintiff)
Sydney Local Health District (first defendant)
Teresa Anderson (second defendant)
Fatima Santiago Pioquinto (third defendant)
South Western Sydney Local Health District (fourth defendant)
David Qui (fifth defendant)

Representation:

Counsel:
Vangu Kitoko (self-represented plaintiff)
R Perla (defendants)

Solicitors:
Vangu Kitoko (self-represented plaintiff)
McCabes Lawyers (defendants)

File Number(s):

2022/329827

Publication restriction:

No

JUDGMENT

1. The plaintiff commenced these proceedings in the District Court on 2 November 2022. He filed a statement of claim alleging medical negligence against the first defendant as the operator of Canterbury Public Hospital and the fourth defendant as operator of St George Public Hospital. At the date of relevant events in 2021 the second and third defendants were, respectively, the Chief Executive Officer and a medical officer employed by the first defendant at Canterbury Hospital. The fifth defendant was a junior medical officer employed by the fourth defendant at St George Hospital. The proceedings were transferred to this Court by order of Registrar Jones made on 20 March 2023.

2. Three notices of motion are before the Court. The defendants’ notice of motion filed 3 May 2023 seeks summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules (“UCPR”) on the ground that they are incapable of being substantiated by evidence, they are frivolous, vexatious and an abuse of process. Alternatively, the defendants seek an order that the plaintiff’s pleading be struck out pursuant to r 14.28, or an order that his claim be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW), on the basis that it is an abuse of process.

3. The plaintiff’s amended notice of motion filed on 24 May 2023 claims the entry of judgment under r 13.1, for damages to be assessed, on the basis that the defendants have no defence except as to quantum, or alternatively the entry of default judgment for damages to be assessed under r 16.3(1)(a), on the ground that no defence has been filed. In the same notice of motion the plaintiff seeks an order that the defendants’ notice of motion be set aside or stayed, on five alternative bases, namely, r 36.15(1), “procedural unfairness”, r 13.4, r 14.28 and s 67 of the Civil Procedure Act. No justification for setting aside or staying the defendants’ notice of motion has been demonstrated. The plaintiff’s reliance upon the various provisions that he has cited is misconceived. The relief that he claims in pars 3-7 of his notice of motion filed 24 May 2023 will therefore not be granted.

4. The plaintiff filed another notice of motion on 25 July 2023 seeking leave to file a further amended statement of claim and applying for directions with respect to the exchange of evidence and submissions concerning the proposed amended pleading. The first 37 paragraphs of the proposed further amended statement of claim are identical to the current pleading, which is itself an amended document that was filed in the District Court on 25 November 2022. I will refer to the current pleading simply as “the statement of claim”. The further amendment for which leave is now sought would add another 33 paragraphs formulating additional causes of action on the facts already pleaded.

Background to the plaintiff’s conspiracy pleading

5. The causes of action pleaded in the statement of claim are mostly framed in negligence, claiming damages for breach of common law duties of care owed by each of the defendants in respect of medical advice and treatment at Canterbury Hospital on 21 March 2021 and at St George Hospital later in March and in April 2021. However, the pleading also includes the following:

5   At all material of times, around in or between:

A. 5 October 2010 to 31 December 2014; or alternatively

B. 1 January 2015 to 7 August 2015; or alternatively

C. 8 August 2015 to 12 May 2017; or alternatively

D. 13 May 2017 to 21 March 2021; or alternatively

E. 22 March 2021 to 24 March 2021.

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

6. As retributions to the Plaintiff, at any time of material of times, around in or between:

A. 5 October 2010 to 31 December 2014; or alternatively

B. 1 January 2015 to 7 August 2015; or alternatively

C. 8 August 2015 to 12 May 2017; or alternatively

D. 13 May 2017 to 21 March 2021; or alternatively

E. 22 March 2021 to 24 March 2021.

the first, second, third, fourth and fifth Defendants, and others conspired together as a way to injury or harm the Plaintiff. Hon. Julie [Owens], directly or indirectly, in concert with Mirvac’s Network and/or UTS and others whose names are unknown to the Plaintiff induced, intimidated and/or coerced [the first defendant] or [the second defendant] to place the Plaintiff’s name in the blacklist, and, in that, [the first defendant] or [the second defendant] instructed Consultant Doctors in [the first defendant’s] Network Hospitals to refuse the Plaintiff, at any time, to be admitted and treated as a patient at [the first defendant’s] Network Hospitals.

6. These allegations of conspiracy and concerted retributive action are repeated, incidentally, in many subsequent paragraphs of the statement of claim. It is necessary to record some background events relevant to the people and entities referred to in these paragraphs in order to identify the people, entities and events that the plaintiff appears to be referring to in pars 5 and 6 of his statement of claim and to explain, later in these reasons, the lack of any reasonable foundation for his allegation of a retributive conspiracy.

The plaintiff’s tertiary studies in Australia

7. The plaintiff was born in 1966 in Kinshasa, Democratic Republic of Congo. He arrived in Australia sometime before 2003 and he has remained in this country ever since. The plaintiff has deposed that in November 2003 he was admitted to the degree of Master of Engineering (Research) by the University of Sydney. He has produced a copy of certificate to that effect under the seal of the University, issued on 28 April 2023. The plaintiff has informed the Court that he also completed two years of a Bachelor of Medical Science degree course at the same university between 2006 and 2009. He said that he undertook that study, without completing the course, in order to obtain a grounding in medicine to assist him with postgraduate work in bio-medical engineering.

8. In January 2010 the plaintiff enrolled as a PhD candidate in the Faculty of Engineering and Information Technology at the University of Technology Sydney (“UTS”), under the supervision of Professor Hung Nguyen. He was awarded a doctoral scholarship for the years 2010-2012 inclusive, which provided him with an annual income from the University of $22,500 while work on his doctoral thesis progressed.

9. In these proceedings and in many other proceedings that the plaintiff has unsuccessfully prosecuted, self-represented, over the past eight years, his conduct has been obtuse, persistent and unreasoning. In several proceedings he has pressed factual assertions for which the respective tribunals and courts have discovered no foundation. He has made extravagant allegations of grave wrongdoing that have proved to be insupportable. In the past proceedings and in the matter now before this Court the plaintiff has invariably advanced his allegations on the basis of bald assertion, with no evidence. At times he has done so in the face of concrete, objective contradiction. The plaintiff’s litigious activities have been characterised by lack of realism or judgment. It is difficult to reconcile his conduct and presentation in court proceedings with Sydney University’s conferral of a Master’s Degree and UTS’ award of a doctoral scholarship.

10. The plaintiff obtained from UTS extensions of time within which to complete his doctorate, thus continuing his enrolment through 2013 and 2014. In early 2015 he was refused any further extension in circumstances where his progress had been assessed as unsatisfactory. On 19 May 2015 his enrolment was discontinued by the University. The four grounds upon which this decision were made have subsequently been recorded in a decision of this Court (Kitoko v University of Technology Sydney [2018] NSWSC 1007 at [79]) as follows:

[Firstly], that the plaintiff had exceeded the maximum time for such candidature by one and a half years; secondly, he had received two successive unsatisfactory “Reviews of Progress”; thirdly, the plaintiff had produced a thesis that was not suitable for examination; and fourthly, the plaintiff had failed to produce necessary information to allow the thesis to be examined, despite the opportunity to do so, and had not provided a sufficient reason for this failure.

An appeal to an academic review committee against the decision to discontinue the plaintiff’s enrolment was dismissed on 7 August 2015.

Personal injury claim against Mirvac Real Estate Pty Ltd

11. While still enrolled at UTS, on 5 October 2010 the plaintiff claimed to have suffered a head injury when he collided with a glass panel in the car park of the Broadway Shopping Centre. He commenced an action in the District Court against the Centre manager, Mirvac Real Estate Pty Ltd (“Mirvac”), and its cleaning contractor, Access Group Solutions (Australia) Pty Ltd. The plaintiff conducted this action without legal representation, as he has done in all proceedings referred to here. He alleged that he had slipped on viscous material on a tiled floor. CCTV footage showed that he had not slipped and, in the words of the trial judge, he had “simply walked into the pane of glass”: Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152 at [25]. The plaintiff’s claim was dismissed and both an appeal to the Court of Appeal and an application to the High Court for special leave were unsuccessful: Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201; Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305.

Allegation against Dr Lord of discrimination

12. After the accident in the Broadway Shopping Centre and prior to the hearing of his claim in the District Court, the plaintiff complained to his general practitioner of headaches allegedly caused by his collision with the glass panel. In April 2012 he was referred to Dr Lord, a neurologist and Visiting Medical Officer at Concord Repatriation General Hospital, administered by Sydney Local Health District. Dr Lord reviewed the plaintiff on four occasions between May and October 2012 and arranged an MRI study of his brain and a nerve conduction study in relation to claimed loss of feeling in his fingertips. Dr Lord subsequently provided a report on his findings that was tendered at the hearing of the plaintiff’s claim in the District Court. On the basis of that report and other evidence, the trial judge was not satisfied that the accident had caused the plaintiff to suffer a brain aneurysm, as he claimed, or anything more than headaches, discomfort in his jaw and soft tissue injury to his neck.

13. In 2015 the plaintiff complained to the Anti Discrimination Board against Sydney Local Health District as the operator of Concord Hospital, alleging that Dr Lord had refused to provide him with the “true” results of the nerve conduction study and that the doctor had said, as asserted by the plaintiff:

I do not think anything interesting will be found to help an African to get the Australian money. We are Australians not you guys.

14. It was subsequently recorded by the NSW Civil and Administrative Tribunal (“NCAT”) in Kitoko v Sydney Local Health District [2017] NSWCATAD 209 that Dr Lord responded to this allegation as follows:

[4]   In February 2016, after being provided with a copy of the initiating complaint, Dr Lord wrote to the Board and denied making the comment attributed to him by Mr Kitoko. Dr Lord wrote that after reviewing the Hospital’s file he was satisfied that Mr Kitoko’s clinical presentation had been addressed in a “thorough and caring manner”. He stated “any suggestion of collusion in a compensation case is baseless and wrong and in my view scandalous”.

NCAT found that the plaintiff’s complaint lacked substance and that it did not disclose a contravention of the Anti-Discrimination Act 1977 (NSW).

15. The plaintiff’s attempt to appeal that decision to an Appeal Panel of NCAT was unsuccessful: Kitoko v Sydney Local Health District [2018] NSWCATAP 38. His application for leave to appeal to this Court was refused: Kitoko v Sydney Local Health District [2018] NSWSC 1461.

Proceedings against UTS for discrimination and conspiracy

16. In May 2016 the plaintiff commenced proceedings against UTS in the Federal Circuit Court alleging that the termination of his enrolment as a PhD candidate was discriminatory and based upon him being “black African” and “disabled in the brain, hands and feet” as a result of the 2010 accident in the Broadway Shopping Centre. The plaintiff claimed that his supervisor at UTS, Professor Hung Nguyen, had conspired with Dr Lord, Canterbury Public Hospital, Mirvac (and associated entities referred to by the plaintiff as “Mirvac’s Network”) to discriminate against him and to “victimise and humiliate” him. None of the alleged co-conspirators were joined as parties. That claim was dismissed on 29 March 2018: Kitoko v University of Technology Sydney [2018] FCCA 699.

17. Judge Nicholls found no substantiation of the alleged conspiracy. His Honour’s judgment included the following:

[71]   […] First, Mr Kitoko asserts that Professor Nguyen’s conduct towards him was motivated by Professor Nguyen’s reaction to a complaint made by Mr Kitoko of racial discrimination, against [Dr Lord at Concord Hospital], in circumstances where Professor Nguyen’s son was subsequently offered a position at that hospital.

[72]   Further, Mr Kitoko asserts that Professor Nguyen “colluded” with Mirvac, against whom Mr Kitoko had sought compensation for his accident, so as to discriminate, humiliate and distress Mr Kitoko. This “collusion” was part of a wider “Mirvac network” which included Professor Nguyen, and [Dr Lord], other employees at UTS, and Associate Professor Pickering from the University of New South Wales [who gave expert evidence, adverse to the plaintiff’s claim, in the District Court].

[73]   On their face, such assertions of collusion by individuals across a number of large and separate organisations, and in the circumstances presented, simply in order to humiliate or victimise Mr Kitoko, could be described as fanciful. However, the substance of the allegations for current purposes must arise from the evidence that is before the Court. It is here that one particular weakness of Mr Kitoko’s case is revealed.

[74]   Mr Kitoko has generally approached the explanation of his case by relying on his subjective view of certain conduct, and actions by others, and by ascribing certain motivations for that conduct, which complied with his view, that setbacks to his academic progress, or perceived adverse dealings with others, could only have come about because he was a “black African”, and/or due to a disability.

[75]   Simply because Mr Kitoko has expressed these views and opinions, particularly as to the motivation of others, in his affidavit evidence, does not necessarily mean that they must be accepted.

[76]   With respect to Mr Kitoko, the thrust of his submissions appears to be that his views, as expressed in his affidavit and oral evidence, are self-evident and of substance, and must be accepted and preferred. There is little, if anything, in his submissions to explain why that is the case in light of the evidence otherwise before the Court. Nor, it must be said, is there any corroborative evidence of substance to support his claims.

[…]

[103]   In his same affidavit (of 6 July 2016 at [5]) Mr Kitoko draws the parallel between [Dr Lord] and Professor Nguyen: […].

[104]   The 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.

[105]   In the circumstances, and stressing the absence of any other evidence before the Court, the preferred view of Mr Kitoko’s evidence is that he resorts to a claim of racial discrimination when he is aggrieved by the conduct of others.

[106]   This view is reinforced by the evidence in relation to the other events of 2014 [at UTS].

[…]

[191]   In short, Mr Kitoko’s view of relevant events, and his belief that Professor Nguyen engaged in some “collusion” with various parties, is simply an expression of Mr Kitoko’s opinion and is not supported by the evidence before the Court. There is nothing in the evidence to support Mr Kitoko’s belief that Professor Nguyen, and for that matter, anyone else at UTS, acted adversely to Mr Kitoko’s interests because, or for reason of, his being a “black African” or for any putative disability.

[192]   It may be unpalatable for Mr Kitoko to accept that on the evidence before the Court, the reason for the discontinuance of his PhD candidature, endorsed on appeal by the committee, was his own failure to achieve satisfactory academic progress and the continuing failure to address deficiencies in his thesis when these were brought to his attention.

[193]   It must also be said that parts of Mr Kitoko’s submissions go beyond being characterised as simply lacking any probative evidence, to being described as “fanciful”. […]

[…]

[195]   The “scheme” envisaged by Mr Kitoko is that Dr Lord […] was also a part of the “Mirvac network”, and this meant that somehow Professor Nguyen’s son secured employment at [Concord Hospital] as a result of this “scheme”.

[196]   Even if this entire proposition had some rational basis (which it does not), on the evidence before the Court, it still does not establish, let alone indicate, that Professor Nguyen discriminated against Mr Kitoko because he was a “black African”. […].

[197]   The fanciful nature of Mr Kitoko’s view that he was the subject of “collusion” by the “Mirvac network”, can also be seen in a series of questions directed to Professor Nguyen and concerning closed-circuit television (“CCTV”) footage of the accident.

[198]   The proposition put in this line of questioning was that Professor Nguyen “colluded” with another academic at UTS, and yet another academic from another institution (Associate Professor Mark Pickering […]), to falsify CCTV footage.

[199]   There is nothing before the Court to doubt Professor Nguyen’s evidence in rejecting Mr Kitoko’s contentions in this regard. There is no evidence whatsoever to provide any basis for Mr Kitoko’s contention. […]

[…]

[218]   The state of the evidence before the Court is such that it cannot be said there is any substance to the claim of a “Mirvac network” or “collusion”. The breadth of this claim, the involvement of such a large number of parties, and institutions, that otherwise have no relevant established links, supports the view that the claim has no inherent credibility.

18. An application to extend time within which to appeal to the Federal Court was dismissed by Rares J on the basis that the proposed appeal had insufficient merit: Kitoko v University of Technology Sydney [2018] FCA 1004 at [30].

19. In 2017, before his proceeding in the Federal Circuit Court had been heard, the plaintiff filed a summons in this Court for judicial review of UTS’ decision to discontinue his enrolment for PhD studies. On 7 June 2018, after the Federal Circuit Court decision had been handed down, an application for summary dismissal was heard by the Associate Justice and upheld: Kitoko v University of Technology Sydney [2018] NSWSC 1007. It was found that the plaintiff was estopped from advancing most of his grounds for judicial review as a result of the adverse findings upon the same matters by Judge Nicholls in the Federal Circuit Court. Some additional grounds of review concerning the operation of Student Rules were assessed as “hopeless”.

20. The plaintiff appealed from the Associate Justice’s decision, without making any challenge to her Honour’s findings with respect estoppel or the operation of the Student Rules, on grounds to the following effect:

(1) “Denial of procedural fairness”, alleging non-compliance with pre-hearing directions for service of evidence.

(2) “Denial of practical justice”, concerning insufficient opportunity to consider opposing affidavits.

(3) “Bad faith”, claiming that the plaintiff was “not in full mental capacity to handle situations in the courtroom”, that the Associate Justice was “aware and took the appellant’s disability condition as an opportunity to manipulate the hearing rule” and that she decided the matter “with intended dishonesty and favouritism”.

(4) “Bias”.

The appeal on these grounds was dismissed by Wright J: Kitoko v University of Technology Sydney [2019] NSWSC 1437.

21. On 2 October 2020 the plaintiff commenced proceedings in the Federal Court against UTS, six officers of the University, Mirvac and the solicitor who represented that company in the District Court, Access Group Solutions (Australia) Pty Ltd and two of its solicitors in the District Court, Sydney Local Health District and its Chief Executive Officer and an employed medical officer, the University of New South Wales as the employer of Professor Mark Pickering and two persons involved in a voluntary organisation known as the Community Migrant Resource Centre “CMRC”. The plaintiff claimed that in terminating his enrolment UTS had committed a breach of contract, contraventions of the Australian Consumer Law (Cth), the torts of conspiracy and negligence and breach of fiduciary duty. All claims against all respondents were dismissed summarily on 15 April 2021: Kitoko v University of Technology Sydney [2021] FCA 360. Griffiths J’s judgment contains a summary of the plaintiff’s many proceedings, in more detail than the brief outline that has been given here.

The plaintiff’s pleading

Allegations concerning Canterbury Hospital, 21 April 2021

22. Under par 6 of the statement of claim particulars are given of alleged failure of the first to third defendants to provide treatment or medical advice to the plaintiff at Canterbury Hospital as follows:

6(iii)   [On 21 March 2021] a medical report confirmed that the Plaintiff was suffering with severe abdominal right flank pain. The Plaintiff was diagnosed with his kidney failure (around 32% of functioning) and also low level of potassium (3.3 mmol/L that caused weakness in muscle).

6(iv)   As retribution to the Plaintiff, the third Defendant had refused to give information to the plaintiff about his condition. The Plaintiff was refused treatment by the third Defendant and therefore discharged from ED [the Emergency Department] without any treatment has been provided and without information, advice or warning on his kidney failure (around 32% of functioning) and low level of potassium (Weakness in muscle) was given. The third defendant advised the Plaintiff to return if fever, worsening, or any other concerns. Behind the close door, Doctors have noticed the Plaintiff that, “as instructed by the second Defendant, due to your accident’s history with the [first defendant], no assistance will be provided to you otherwise we have risk to lose our jobs”.

23. Leaving to one side the conspiracy, or retribution, aspect of this allegation, it is that the first defendant and its employees at Canterbury Hospital identified kidney failure in the plaintiff, refused to give him information about his condition and discharged him without treatment or warning, particularly with respect to his low potassium level. Paragraph 23 makes further allegations relevant to this cause of action. Omitting repetition and irrelevancies, material parts of par 23 are as follows:

23   At all material times from on or around 21 March 2021:

(a) the third Defendant had discharged the Plaintiff from ED of the Canterbury Public Hospital without giving the Plaintiff information on his kidney failure (around 32% of functioning), low level of potassium (Weakness in muscle) and/or without any treatment.

(b) the deliberately Plaintiff’s discharge from ED of the Hospital without any treatment created a risk of kidney failure of functioning, and also a risk weakness in muscle and further, a risk of sudden shock.

(c) the deliberately Plaintiff’s discharge from ED of the Hospital without the information and without the treatment be given to the Plaintiff was capable of causing death or serious injury to Plaintiff, and damage to or loss of Plaintiff health (or Plaintiff body), by:

(i) kidney failure of functioning.

(ii) a weakness in muscle which could result to denervation of muscles in the right lower limbs.

(iii) further, a sudden shock.

24. Paragraph 23 is in a section of the pleading where the plaintiff alleges circumstances that gave rise to a duty of care owed by the first defendant and its employees. It is not alleged in the statement of claim that any potential adverse consequences of the plaintiff’s alleged kidney failure and low potassium levels, as pleaded in par 23, were actually realised. Paragraph 28 commences with the words: “The injury or the harm was caused by breaches of duties of care by [the first or the fourth defendants or their employees et cetera]”. The only paragraph of the statement of claim that specifies what “injury or harm” was caused is par 37, quoted below. It alleges injuries that are said to have resulted from the fourth defendant’s treatment of him at St George Hospital. Paragraph 37 does not specify any injury or damage caused by the alleged breach of duty in discharging the plaintiff from Canterbury Hospital on 21 March 2021 without treatment, information or warning.

Allegations concerning St George Hospital, 22 March 2021-May 2021

25. Under par 7 of the statement of claim it is alleged in sub-par (i) of the particulars that the plaintiff presented at the Emergency Department of St George Hospital on 22 March 2021 suffering severe abdominal right flank pain and kidney failure (described in terms repetitive of par 6(iii), quoted above). Paraphrasing par 7(iv) of the particulars, again disregarding repeated conspiracy allegations, it is said that during the plaintiff’s admission at St George Hospital between 22 and 24 March 2021:

around or on 23 March 2021 late afternoon, the Plaintiff was taken to the surgery theatre. While the Plaintiff was sleep and completely unconscious under general anaesthesia, procedures including rigid Cystoscopy at 30 degree, right Ureteroscopy and insertion of right ureteric stent has been consciously and voluntarily or deliberately authorized and performed by [Dr Qui] and/or [the fourth defendants’] employees, agents or consultants.

26. In par 7(v) of the particulars, it is alleged that on the afternoon of 24 March 2021 Dr Qui “performed several Neuro-Physio Tests linked to the movements of muscle in the face, in hands and in the feet”, over a period of one hour, and failed to explain, in terms that the plaintiff could understand, the purpose of the tests.

27. In par 7(vi) the plaintiff alleges that Dr Qui discharged him from St George Hospital later, on the afternoon of 24 March 2021 without providing information as to his condition, in particular, with respect to “low level of potassium … (3.4mm/L)”.

28. In par 7(vii)-(ix) it is alleged that the plaintiff attended St George hospital during the evening of 24 March 2021 and again on 28 March with pain in his lower right leg and that on the second occasion he was “treated with moderate pain bilaterally in his lower limb right and then discharged”. It is alleged that the pain worsened on 30 March 2021 and that he was admitted overnight but discharged on 31 March.

29. In par 8 it is alleged that the fourth defendant “and/or [its] employees, contractors or consultants directly or indirectly in concert with” the first defendant and its employees, contractors or consultants and “Hon Julie [Owen], Mirvac’s Network and/or UTS and others whose names are unknown to the plaintiff, purported to discipline the plaintiff”. There is no explanation in the pleading or in the evidence of what “discipline” might be intended to mean. The paragraph does not plead a cause of action or any element of a cause of action. It may be disregarded for present purposes and would be struck out if the proceedings were to continue any further.

30. Paragraph 9 is in these terms (emphasis added):

9   From on or around 23 March 2021, the Fifth defendant and/or [its] employees, contractors or consultants, physically and sexually assaulted the plaintiff on numerous occasions.

Particulars of physical and sexual assaults

(i) at all material times, around or on 23 March 2021, while the Plaintiff was sleep and completely unconscious under general anaesthesia anaesthetics for the purpose of procedures including rigid Cystoscopy at 30-degree, right Ureteroscopy and insertion of right ureteric stent, [Dr Qui] and/or [the fourth defendant’s] employees, agents or consultants had abusively sprained the Plaintiff’s right lower limb and right foot.

(ii) at all material times, around or on 23 March 2021, [repeating the circumstances alleged at par (1)], [Dr Qui] and/or [the fourth defendant’s] employees, agents or consultants had injected the Plaintiff’s Peroneal Nerve into right lower limb level with unknow substance infected with Hepatitis-B.

Allegations of injury and damage

31. The only paragraph of the current amended pleading that relates any allegation of injury and damage to any of the causes of action is par 37, as follows:

37   As a result of the said negligence of the [first and fourth defendants] and/or of their servants, agents and/or contractors, and also as result of the said physical and sexual assaults committed by, the [first defendant] and/or of their servants, agents and/or contractors, directly or indirectly in concert with [first and fourth defendants’] employees, contractors or consultants, Hon. Julie Owen, Mirvac’s Network and/or UTS and others whose names are unknown to the Plaintiff, the Plaintiff suffered and will continue to suffer injury, disability, and loss or damage.

Particulars of Injury

i. Injury to right lower limb;

ii. Injury to right ankle;

iii. Injury to right foot;

iv. Gross nervous shock;

v. Chronic adjustment disorder and persistent complex bereavement disorder, with mixed anxiety and a depressed mood;

vi. Neurological injury to right lower limb;

vii. Neurological radiation of pain into right lower limb;

viii. Neurological radiation of pain into right ankle;

ix. Neurological radiation of pain into upper right foot;

x. Severe psychiatric or psychological injury.

Principles governing the summary judgment and dismissal applications

32. In order to succeed the plaintiff’s application for summary judgment would require “evidence of the facts on which the claim … is based”: r 13.1(1)(a). This means more than mere affirmation or reiteration of the allegations in the statement of claim. In this medical negligence case the plaintiff could not hope to obtain summary judgment for damages to be assessed without providing expert medical opinion of the matters referred to in r 31.36(1)(a)-(c), quoted below.

33. For the purposes of the defendants’ application for summary dismissal under r 13.4, sub-r (2) provides that the Court may receive evidence. The issue is not confined to a consideration of the pleadings. The test to be applied in resolving such an application has been stated in many authorities. The principles were drawn together in the following passages of Johnson J’s judgment in Hamzy v Commissioner of Corrective Services (NSW) (2011) 80 NSWLR 296; [2011] NSWSC 120:

[13]   … [A] very clear case is required before summary dismissal is granted and that the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-3.

[14]   The test is not whether the Plaintiff would probably fail in his action against the Defendants, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. Where the court is asked to summarily dismiss a plaintiff's case, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal application to succeed, a high degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575-6.

[15]   By bringing an application for summary dismissal, the Defendants undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37].

34. Those principles apply, correspondingly, to the plaintiff’s summary judgment application under r 13.1, which may only be upheld if the material before the Court shows that the action should not go to trial in the ordinary way because it is apparent that there is no triable issue in defence; that is, if it can be said with a high degree of certainty that the plaintiff’s claim must succeed.

The plaintiff’s affidavits

35. The first of the plaintiff’s affidavits read on the hearing of the notices of motion was affirmed on 16 March 2023. At par 6 the plaintiff deposed that his “amended statement of claim relies on the following facts and assertions”. Following that introduction there are set out, at pp 3-10 of the affidavit, pars 5-10 of the statement of claim. Then at pp 11-18 of the affidavit, there is an account of some of the procedural steps in this litigation. The balance of the affidavit comprises legal argument. This affidavit contains no deposition of any substantive fact in proof of the allegations in the statement of claim.

36. The plaintiff’s second affidavit affirmed on 20 March 2023 is entitled as an “Amended Affidavit” in which the whole of the previous affidavit is repeated and then a further section is added at pp 25-32, in which the plaintiff estimates his damages. This additional section is underlined, the plaintiff apparently proceeding on the understanding that an affidavit may be amended in the same manner as a pleading. In the additional section on damages the plaintiff deposes that he has worked as a taxi driver since the year 2000. He states that he has suffered a loss of earning capacity since “the accident”, which event is not specified or explained. The calculations are based on the proposition that, but for “the accident” he expected to qualify as a neurosurgeon and work to the age of 75, with earnings of $10,687,500. Alternatively, he deposes that he would have qualified in law and practised at the Bar, earning $3,800,000, or that he would have become a biomedical engineering academic earning $2,850,000 in the same period. In the view that I take of how the applications presently before the Court should be resolved, it will not be necessary to consider these estimates in detail. They seem improbable.

35. The plaintiff affirmed a third affidavit on 28 April 2023. The first nine pages of this comprise legal argument. Annexures A-K are extracts of the medical records of Canterbury and St George Public Hospitals, which will be considered below in conjunction with additional records from the more complete sets that have been tendered by the defendants. Also included are medical reports from doctors who have treated the plaintiff and/or carried out medical investigations concerning him, outside the hospital system. At pars 19 and 20 the plaintiff deposes as follows:

19   In the circumstances of this present case, the plaintiff is unable to provide the exact dates and exact actions of [the fourth defendant’s] employees', agents' or consultants' sexual assaults that they occurred from time to time while the Plaintiff was sleep and completely unconscious during general anaesthetics for the purpose of procedures including rigid Cystoscopy at 30-degree, right Ureteroscopy and insertion of right ureteric stent.

20   While it may not be possible to prove precisely what happened during the Plaintiff surgery, possibly because the only people conscious at the time work for the defendants' hospitals, physical and sexual abuse's events occurred that do not ordinarily occur in the absence of negligence. This is sufficient to swing the burden of proof to the defendants' hospitals so that they are or will be held liable unless they can prove the chain of events that demonstrates that they were not negligent.

38. In the plaintiff’s fourth affidavit of 23 May 2023 he quotes, for the third time, pars 5-10 of the statement of claim. The balance of this affidavit is concerned with the procedural history of this case, legal argument and particulars of damage. The plaintiff’s fifth affidavit affirmed on 14 June 2023 repeats aspects of the procedural history to which he has deposed in earlier affidavits and makes further legal submissions. His sixth affidavit affirmed on 23 June 2023 once more recites pars 5-10 of the statement of claim and aspects of the procedural history of the litigation. Pages 18-45 are legal submissions concerning the consequences of procedural events. The plaintiff’s seventh and final affidavit affirmed on 24 July 2023 contains only procedural history and legal and factual submissions to justify his proposed further amendment of the statement of claim.

Absence of an affidavit under r 31.36

39. Rule 31.36 of the UCPR provides as follows, so far as presently relevant:

31.36 Service of experts’ reports in professional negligence claims

(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting—

(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.

(2) …

(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

40. Summarised from the extracts of the statement of claim quoted above, the plaintiff’s claims of negligent breach of duty, all of which engage this rule, are as follows:

1. At Canterbury Hospital on 21 March 2021, failure to provide medical advice and treatment for kidney failure and low potassium levels.

2. At St George Hospital on 23 March 2021, assault upon the plaintiff, sexually, while under anaesthetic for cystoscopy, ureteroscopy and ureteric stent insertion procedures.

3. At St George Hospital on 23 March 2021, “abusively sprained the Plaintiff’s right lower limb and right foot” while under anaesthetic.

4. At St George Hospital on 24 March 2021, performance of “several Neuro-Physio Tests linked to the movements of muscle in the face, in hands and in the feet” without explanation.

5. At St George Hospital on 24 March 2021, discharge of the plaintiff without medical advice and treatment for low potassium levels.

6. At St George Hospital on 23 March 2021, injection of the plaintiff’s peroneal nerve in his right leg with an “unknown substance infected with Hepatitis-B”.

41. In breach of r 31.36 the plaintiff did not file with his statement of claim, on 2 November 2022, an expert medical report supporting an opinion as to the matters listed at sub-r (1)(a)-(c), nor has he served or filed any such report over the subsequent eight months up to the hearing of these notices of motion. As permitted by r 19(1), the amended statement of claim was filed in the District Court on 25 November 2022. Pursuant to r 14.3 the defendant had until 23 December 2022 within which to file a defence. However, on 13 December 2022 Registrar Howard made the following orders in the District Court:

1   Plaintiff to make any request for documents and/or CCTV footage by 23 December 2022.

2   Defendant to respond to any request for documents by 10 February 2023.

3   [There was no order numbered 3].

4 Plaintiff to serve any expert report under UCPR 31.36 by 17 March 2023.

5   [Listed for directions] 14 April 2023 at 9:30 am.

42. On 22 December 2022 the plaintiff served on the first defendant a notice to produce requiring production of Canterbury Hospital’s records of the plaintiff’s attendances, CCTV footage of the Hospital and personnel records of the third defendant. A second notice to produce was served on the fourth defendant requiring similar material in relation to St George Hospital and personnel records of the fifth defendant. Documents that satisfied these notices to produce were delivered to the District Court on 10 February 2023, not including CCTV footage from either hospital or personnel records of the fifth defendant. The defendants’ solicitor informed the plaintiff by letter of 20 February 2023 that there was no CCTV footage and that no records in relation to the fifth defendant were held.

43. The plaintiff replied by letter of 10 March 2023 including the following:

[Without] producing these required evidence above, the plaintiff will not be in a position to serve the defendants with any expert report under UCPR 31.36 by 17/3/23, as in [order 4 of 13 December 2022], since none of all the expert doctors contacted by the plaintiff is ready to provide the court with comprehensive report in support to the plaintiff case when required evidence, including CCTV footage and record of doctors who were in control of the plaintiff’s injury circumstances, are not provided.

44. Affidavit evidence read by the defendant on the hearing of the notices of motion satisfies me that there is no relevant CCTV footage available. Neither of the hospitals record images from cameras in clinical areas, in the interests of patient privacy. Footage recorded from CCTV cameras in public non-clinical areas is erased or written over after 21 days.

45. The plaintiff’s failure to comply with r 31.36 has continued to this day, without justification in my view. If any of his claims in negligence were capable of being sustained, the plaintiff would be able to obtain an expert medical opinion to support those claims, based upon assumptions as to the accuracy of a history given by the plaintiff.

Canterbury Hospital records

46. With respect to the plaintiff’s allegations of failure of Canterbury Hospital staff to treat or to advise him on 21 March 2021 (see [23]-[25] above), the defendants tendered Hospital records of that date which may be summarised as follows:

19:32 – on admission to the Emergency Department the plaintiff gave a recent history of lower abdominal pain, bowel spasm and increased urination.

20:25 – the plaintiff said the abdominal pain had been intermittent and gave additional history in these terms:

Has intermittent low back pain for ten years due to nerve compression. Past two weeks, patient started to have abdominal pain when he has back pains. Pain spontaneously resolves.

[Past medical history] spinal nerve compression – advised surgery 10 years ago – sees a Neurosurgeon regularly at Westmead – due for an MRI and [follow-up] in a few weeks.

That history was taken by Dr Pioquinto, the third defendant, who recorded the following outcome:

Discussed with Dr Dinuk. For [Emergency Department] discharge. [Follow-up] with GP.

Impression Non specific abdominal pain.

21:36 – the applicant was discharged. Dr Pioquinto recorded the following at this time:

Advice given to Patient on D/C Advised to return if with fever, worsening pain, or any other concerns.

At the same time, either Dr Pioquinto or Dr L Hutchinson provided to the plaintiff the following discharge referral letter to be presented to his general practitioner, Dr TM Chauhan:

Dear Doctor,

Thank you for seeing patient Vangu Kitoko. He presented to ED with intermittent abdominal pain for two weeks. This pain coincides with his intermittent back pain that has been there for ten years. His urine has some blood. His bloods are unremarkable other than the creatine of 194. Unfortunately we have no previous blood test to compare to. I am suggesting to please repeat this creatine and possibly renal imaging if this creatine level is not his baseline.

The letter had appended to it the laboratory results of analysis of his blood and a copy of the note of “Advice given to Patient on D/C” as set out above.

47. The defendants tendered a letter from Dr G McInerney, radiologist, of Georges River Medical Imaging dated 22 March 2021. The letter is addressed to Dr Chauhan, indicating that he had referred the plaintiff to Dr McInerney for renal imaging, as recommended in the Canterbury Hospital discharge referral letter of 21 March. In lay terms, Dr McInerney identified kidney stones. At 14:54 he reported, inter-alia, the following findings:

There is a 6mm echogenic focus suspicious for calculus in the left kidney.

There is a mild right hydronephrosis [fluid build up in kidney] and dilation of the right ureter with an apparent right distal ureteric calculus measuring 5mm in short axis diameter.

There is a 5mm calculus in the mid-portion of the left kidney. A separate 8mm calcification in the posterior cortex of the left kidney is more consistent with parenchymal calcification [deposit of salts] than a collecting system calculus.

Conclusion: Apparent obstruction of right kidney by 5mm distal ureteric calculus and calcification in the midportion of the left kidney as above.

St George Hospital records

48. With respect to the plaintiff’s allegations concerning St George Hospital, the defendants again tendered Hospital records. The plaintiff’s first admission at St George was from 22 to 24 March 2021, in respect of which the records show the following:

22 March 2021, 18:06 – the plaintiff presented at the Emergency Department. He complained to the triage nurse of right-sided abdominal pain for the preceding two weeks with some vomiting and some decrease in urination. He said that he had seen his GP that day and had been referred for CT scan and ultrasound.

21:38 – the plaintiff repeated this history to a junior medical officer. He had with him the results of further blood tests obtained by his GP and scans of the renal imaging studies. The hospital was provided with Dr McInerney’s report. The junior medical officer recorded his plan to review the imaging with surgeons. He discussed the case with Dr Katelaris, a urology registrar. The plaintiff was admitted as an inpatient.

23 March 2021, 2:50 – Dr Katelaris reviewed the medical imaging, noted a “5mm distal ureteric stone” and directed that the plaintiff fast in preparation for possible surgery, pending the results of further blood tests.

5:37 – the plaintiff was transferred to the Emergency Department Short Stay Unit.

During 23 March 2021 – Dr Katelaris explained to the plaintiff the proposed procedures of cystoscopy (insertion of a hollow tube, with a lens and light source, through the urethra to the bladder), right uteroscopy (progression of the camera device through the right ureter to the kidney), laser breakdown of the identified kidney stone and insertion of a stent in the right ureter. The plaintiff signed a consent to the performance of these procedures.

23 March 2021, 17:19 – Registrar Garcia carried out the cystoscopy and inserted a right ureteric stent.

24 March 2021,16:30 – the plaintiff was discharged with the following advice:

Discharge letter given and explained. Patient is educated on if feeling unwell to see the doctor. Patient [potassium] is 3.4. Patient is also educated to take [potassium] rich foods.

The discharge letter addressed to the plaintiff’s GP, Dr Chauhan, included the following:

Presented with 2 day history of severe right flank pain. […] [Scans and report] as outpatient from Georges River Medical Imaging showed 5mm distal ureteric stone with associated right hydronephrosis.

Rigid cystoscopy + Insertion of Right Ureteric Stent performed.

Discharge plan: (1) Please follow-up with your GP in one week to monitor ongoing symptoms. GP to kindly repeat [Electrolytes, Urea & Creatinine] blood analysis for ongoing monitoring of renal function as well as potassium level. (2) […] A Referral for Admission has been completed for a future procedure. Your case has been triaged and you will be contacted regarding your appointment date and perioperative instructions. (3) Please seek medical attention if any worsening pain, fevers, or other worrying symptoms arise.

For the purposes of the further procedure to be carried out a later date, Dr Katelaris explained to the plaintiff the cystoscopy, right uteroscopy and stent change that were proposed to be performed. The plaintiff signed the consent on 24 March 2021, in anticipation of the subsequent admission.

49. On 29 March 2021 the plaintiff again presented at the Emergency Department of St George Hospital. Extracts from the records tendered by the defendants in respect of that date are as follows:

10:21 – a registered nurse in triage recorded that the plaintiff said he had passed blood in his urine following the procedure of 23 March 2021 and complained of lower abdominal pain and urinary urgency.

11:11 – a senior medical officer was informed by the plaintiff that passing of blood had developed the preceding day. He was afebrile. The plaintiff was not admitted and was advised to return to the Emergency Department if he developed fever, dysuria or inability to void.

50. The plaintiff returned to the St George Emergency Department on 30 March 2021, this time complaining to the registered nurse in triage of “pain to bilateral feet and legs” since the preceding day. He was admitted to the Emergency Department Short Stay Unit, overnight. The records of this admission show the following:

31 March 2021, 9:18 – on examination by a junior medical officer the impression formed was: “Pain at the site of the lithotomy strap.” [A lithotomy strap is secured to the ankles and used to hold the patient’s legs in an elevated and separated position, with stirrups, during the performance of a procedure such as cystoscopy].

11:25 – on further examination by a second medical officer in orthopaedics, the plaintiff complained of “onset of bilateral lower limb pain following [the urological procedure]. Manageable pain at the time but acute worsening of right-sided pain over the weekend [27 and 28 March]”. An x-ray was obtained and the following matters, amongst others, were recorded:

Discrete point of tenderness 8-10cm proximal to tip of lateral malleolus [prominent bone at the bottom of the fibula, on the outside of the ankle].

XR - unremarkable appearance at level of maximal pain, slight cortical irregularity more proximally (non-acute).

Impression: musculoskeletal pain? Position-related during recent urological procedure.

Can use camboot if provides symptom relief, GP can investigate further with outpatient imaging if ongoing concerns.

Discharge on 31 March 2021 – following the above assessment the plaintiff was discharged with a referral letter to Dr Chauhan reporting the presentation of the plaintiff and the radiological and orthopaedic findings, with advice that the plaintiff should receive simple analgesia as required, Endone for uncontrolled pain and an outpatient MRI scan of the plaintiff’s leg if he should not improve in 3-4 weeks.

51. On 6 April 2021 a registered nurse at St George Hospital spoke to the plaintiff by telephone to assess him for his next admission for the proposed further urological procedure. On 13 April 2021 he was admitted for that purpose and at 15:03 Dr Garcia carried out a cystoscopy, right ureteroscopy, laser fragmentation of the right kidney stone and replacement of the stent in the right ureter.

52. On 19 April 2021 the plaintiff was again admitted to St George Hospital for removal of the right ureteric stent, which was performed that day without complication.

Determination of the competing summary applications

Conspiracy alleged in pars 5 and 6

53. The plaintiff cannot have summary judgment on his allegation of a conspiracy, as pleaded in pars 5 and 6 of the statement of claim and referred to incidentally in other paragraphs, for the primary reason that he does not allege, let alone adduce evidence of, all elements of the tort. Actionable conspiracy is constituted by:

1. an agreement between two or more persons;

2. to carry out some act or acts with a predominant intent of injuring the plaintiff’s economic interests (if the agreed means are otherwise lawful), or to carry out some act or acts directed at the plaintiff that are unlawful and that foreseeably (at least) will cause damage: McKernan v Fraser (1931) 46 CLR 343; [1931] HCA 54 at pp 362 (Dixon J), 378 and 380(Evatt J) (correction noted by Taylor J at 103 CLR p 108); Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51 at p 78 (Fullagar J, Dixon CJ agreeing) and p 122 (Menzies J); Lonrho Plc v Fayed [1992] 1 AC 448 at 465G-468H (Lord Bridge); Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 at [13]-[14] (Handley JA)

3. which is executed in whole or in part: McKernan v Fraser at p 407; Fatimi Pty Ltd v Bryant at [33]; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [140] (Weinberg J) and

4. the acts in furtherance of which cause some pecuniary loss to the plaintiff: McKernan v Fraser at p 381 (Evatt J); Williams v Hursey at pp 78 (Fullagar J, Dixon CJ agreeing) and 122 (Menzies J); Ansett Transport Industries (Operations) Pty Ltd v Australian Federation Of Air Pilots (No 2) [1991] 2 VR 636 at 645; McKellar v Container Terminal Management Services Ltd at [140]-[141] (Weinberg J); Ballard v Multiplex Ltd [2008] NSWSC 1019 at [62] (McDougall J).

54. One may find the first two elements alleged in the pleading and possibly the third, on a generous reading, but pecuniary loss is not alleged. The plaintiff has adduced no evidence upon which the Court could be satisfied that there is a serious issue to go to trial on any of the elements of this tort, let alone that the plaintiff would inevitably substantiate the claim. He has provided no direct evidence of an agreement between the defendants amongst themselves “to injury or harm plaintiff”. He has provided no direct evidence that the “Hon. Julie”, apparently a reference to Ms Julie Owens, former Federal member for Parramatta, acted in concert with Mirvac Real Estate Pty Ltd and/or associated entities and/or UTS to intimidate or coerce the first defendant and its Chief Executive to “blacklist” the plaintiff. There is no evidence of acts in furtherance, from which the alleged agreement and/or an intent to cause economic injury might be inferred. No evidence has been given to prove the existence of a “blacklist” or of the entry of the plaintiff’s name upon it or of him being refused admission or treatment at hospitals administered by the first defendant. Not only is there no allegation of pecuniary loss, there is no evidence of it. The plaintiff has certainly not made a case for summary judgment on the conspiracy allegation.

74. Judicial caution in exercising the power conferred by the Act is influenced by the view of Stone J in Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159 at [35] that the relief available under such provisions is “extreme”. At that reference, the following was said with respect to rules of the Federal Court comparable to the New South Wales Act:

[35]   The relief for which these rules provide is extreme. It deprives the person subject to the order of a right that is fundamental to the preservation of a civil society governed by the rule of law, namely the right to call on the Court to resolve a dispute or adjudicate a claim simply by filing an application in the prescribed form. For this reason such an order is not made lightly …

77. I respectfully consider that those observations may be qualified by this consideration: the right of a citizen to call upon the Court to resolve a dispute is cut down by an order under s 8 of the Vexatious Proceedings Act only to the extent that leave of the Court must be obtained pursuant to ss 14 and 15 before filing and before service on opposing parties. It is a practical reality that the overwhelming majority of litigants who bring multiple unfounded claims are unrepresented, like the plaintiff in the present case. If an unrepresented litigant should be declared vexatious, it is but a slight and reasonable constraint that he or she should be required to obtain the leave of the Court before further engaging its machinery against an opponent. The statutory requirements of an application for leave include disclosure of other proceedings instituted by the applicant in Australian courts and disclosure of the outcome of other applications for leave: s 14(3). However, in substance the required procedural step of obtaining leave does little more than impose a vetting or filtering process equivalent to that to which other prospective plaintiffs are subject when they submit their prospective claims to the advice and representation of professional lawyers.

78. Solicitors and counsel have legal knowledge and experience from which to assess whether a proposed proceeding is viable and whether it may responsibly be instituted. As officers of the Court, they are ethically and professionally bound not to lend their skills to the pursuit of claims that lack reasonable foundation and would constitute an abuse. When a vexatious proceedings order has been made against an unrepresented litigant under s 8(7)(b), the limitation is only that any new claim by that person must be approved for filing by a judge in chambers, who can apply the criteria that privately engaged legal advisers would ordinarily bring to bear.

79. There would be much in favour of such a prerequisite to the commencement of proceedings by any unrepresented litigant, irrespective of whether he or she may previously have conducted litigation vexatiously, according to the standards of the Act. By means of a leave requirement the Court could assess whether a proposed claim has a reasonably arguable foundation. Unrepresented litigants could be prevented, prospectively, from vexing defendants with proceedings that are demonstrably unsustainable from the point of commencement. With an opportunity for pre-filing review, the present proceedings would never have begun, by reason of incomplete pleading of the conspiracy count and the absence of prima facie expert medical evidence as required under r 31.36.

80. As a measure that only applies after unfounded or harassing claims have been “frequently” prosecuted, the Vexatious Proceedings Act engages too late to address the mischief caused by litigants like Mr Kitoko – unrepresented, unreasonable, heedless of facts and unconcerned by failure. All things considered, I see no utility in now taking any step under that Act.

Orders

81. For these reasons the orders of the Court are as follows:

1. Judgment for the defendants on the plaintiff’s claims pursuant to s 13.4 of the Uniform Civil Procedure Rules.

2. The plaintiff’s amended notice of motion filed on 24 May 2023 and his notice of motion filed on 25 July 2023 are dismissed.

3. The plaintiff is to pay the defendants’ costs of the proceedings in the District Court and in this Court including the costs of all notices of motion.

4. Leave is granted to the defendants to apply for a specified gross sum costs assessment pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) by serving upon the plaintiff and delivering to the Associate to Fagan J, by 11 August 2023, a written submission confirming that a specified gross sum is sought and explaining the basis of calculation of the amount claimed, together with an affidavit substantiating the costs incurred.

5. In the event of an application by the defendants for a specified gross sum being lodged with the Associate and served upon the plaintiff, the plaintiff may respond with written submissions and affidavit evidence, to be served upon defendants and delivered to the Associate by 25 August 2023.

6. Note that any application for a specified gross sum of costs will be determined on the papers.

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Decision last updated: 07 August 2023