Kitoko v Sydney Local Health District

1. [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. [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. [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. [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

1. [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:

2. [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.

3. [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.

4. [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.

5. [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.

6. [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:

7. [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.

8. [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.

9. [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:

10. [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:

11. [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.

12. [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.

13. [17]

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

14. [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].

15. [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”.

16. [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:

17. [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

1. [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:

2. [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:

3. [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.

4. [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:

5. [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.

6. [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)”.

7. [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.

8. [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.

9. [30]

   Paragraph 9 is in these terms (emphasis added):

10. [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:

Principles governing the summary judgment and dismissal applications

1. [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.

2. [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:

3. [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

1. [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.

2. [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.

3. [37]

   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:

4. [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

1. [39]

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

2. [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. (1)

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

   2. (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. (3)

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

   4. (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. (5)

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

   6. (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”.

3. [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:

4. [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.

5. [43]

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

6. [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.

7. [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

1. [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:

2. [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:

St George Hospital records

1. [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:

2. [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:

3. [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:

4. [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.

5. [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

1. [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. (1)

      an agreement between two or more persons;

   2. (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. (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. (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).

2. [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.

3. [55]

   The defendants have satisfied me that this claim should be summarily dismissed, first by reason of the insufficiency of the pleading and secondly because both element 3 (execution of the agreement, in part at least) and element 4 (pecuniary loss) are refuted by the hospital records tendered by the defendants. The plaintiff has not challenged the veracity of those records nor suggested that he would be able to do so at trial. On the contrary, he has annexed to his own affidavits copies of sufficient of the records to show that he was not denied medical care. They show that he received full treatment of the condition with which he presented and that he was not put to any personal expense by reason of any refusal of the hospitals to treat him.

4. [56]

   The defendants also submit that the plaintiff is estopped from prosecuting this conspiracy allegation because it is to the same effect as the conspiracy that he alleged in the Federal Court. That was dismissed by Griffiths J in the proceedings referred to at [21] above. I do not accept that submission because the respective pleadings, so far as one can understand them, appear to allege conspiracies with different objects. The plaintiff’s conspiracy allegations in the present proceedings are bound to fail for reasons of deficient pleading and factual refutation, as stated above.

5. [57]

   The plaintiff is not entitled to summary judgment on his claims in pars 6(iii), 6(iv) and 23 of the statement of claim, concerning alleged failure to treat and advise him with respect to kidney failure and low potassium levels at Canterbury Hospital on 21 March 2021. First, he has not pleaded, or provided any evidence of, injury or damage caused by this alleged negligence. During the hearing of the notices of motion the plaintiff sought a further two months within which to obtain a medical opinion about causation of damage from alleged neglect of treatment and advice on 21 March 2021. That application is refused in circumstances where the plaintiff has not even pleaded this essential element of his putative cause of action and where he has been knowingly in default of the requirement to provide expert medical opinion on issues of causation of damage since, at latest, 13 December 2022 when Registrar Howard ordered him to comply with r 31.36.

6. [58]

   The defendant has established that this claim is fore doomed and should be summarily dismissed. First, it is incomplete at the pleading level, with respect to causation of injury or damage. Secondly, the undisputed Canterbury Hospital records show that on discharge the plaintiff and, more importantly, his GP were informed that his blood potassium level was low, that further investigations were required concerning the health of his kidneys and that he should return to the hospital in the event of “fever, worsening pain or any other concerns”. The records of his subsequent treatment at St George Hospital were also not challenged on the hearing of the notices of motion. Nor was the Court informed of any basis upon which the veracity of those records could be disputed at trial.

7. [59]

   The plaintiff himself tendered and relied upon parts of the Canterbury Hospital records. They, together with Dr McInerney’s radiological report, which was obtained independently of the hospitals, show that subsequent diagnosis and treatment of the plaintiff’s renal disorder was not adversely affected by his discharge from Canterbury Hospital on 21 March 2021 or, in particular by the absence of any specific advice at that time regarding his low blood potassium level. Specific advice on that subject was given when he was seen at St George Hospital only three days later: see the summary of that hospital’s records of 24 March 2021 at [48] above. The records of the plaintiff’s successful treatment at St George Hospital are inconsistent with any suggestion that some detriment to the plaintiff’s health was occasioned by a delay from 21 March to 24 March in advising him to eat potassium-rich foods. As earlier stated, no such suggestion has been pleaded.

8. [60]

   The defendants are entitled to summary dismissal of the plaintiff’s claims concerning medical negligence of the first, second and third defendants at the Canterbury Hospital and the plaintiff’s claim to summary judgment in respect of that matter will be dismissed.

9. [61]

   The claim in par 9 of the statement of claim (quoted at [30] above), that the plaintiff was sexually assaulted while under anaesthetic, was unsupported on the plaintiff’s application for summary judgment by any evidence that could justify the granting of such relief. The evidence summarised above at [48] shows that the procedures performed on the plaintiff at St George Hospital on 23 March 2021 were done with his informed consent. He has given no evidence to the contrary. He is not in a position to give evidence that anything done while he was under anaesthetic exceeded his consent, for the very reason that he was unconscious. There is no CCTV coverage of the operating theatre by which his allegations could be supported. On the hearing of the notices of motion the plaintiff did not read any affidavit evidence of any witness who was present during the procedure and who could substantiate his claims.

10. [62]

    These considerations not only deny the plaintiff his claim to summary judgment, they demonstrate that the claim regarding sexual assault must be summarily dismissed. The lack of an evidentiary basis for the claim is incurable. Paragraph 7(iv) of the statement of claim states that the plaintiff “relies on the incoming report from the Police” to establish that assaults, including sexual assaults, were committed upon him. However, evidence was adduced by the defendants that although the plaintiff made complaint to police at Kogarah station, the responsible officers have reported finding no evidence to support the claims and they have closed their investigation.

11. [63]

    The claims in par 9 that the defendants “abusively sprained the plaintiff’s right lower limb and right foot” and “injected the plaintiff’s peroneal nerve […] with unknown substance infected with Hepatitis-B” were unsupported on the hearing of the notices of motion by any evidence from the plaintiff. His application for summary judgment in respect of those claims also fails. The defendants are entitled to summary dismissal of the claims of abusive spraining and injection of the right leg. The uncontested hospital records are inconsistent with it and evidence of medical investigations conducted outside the hospital system, at the plaintiff’s request, affirmatively show that dysfunction in his right lower limb, impairment of the peroneal nerve in that limb and the plaintiff’s hepatitis B infection are causally unrelated to treatment in the fourth defendant’s hospital.

12. [64]

    The claim of “abusive” injury to the plaintiff’s right leg and foot is contradicted by an MRI study performed on 9 June 2021 Dr Robertson of Castlereagh Imaging at the request of the plaintiff’s general practitioner, Dr Chang. Dr Robertson found moderate subacute denervation of muscles of the right knee joint and calf. He reported to Dr Chang the following results, amongst others:

13. [65]

    Those findings accord with the plaintiff’s history given to the third defendant at Canterbury Hospital on 21 March 2021 (see [46] above), acknowledging “intermittent low back pain for 10 years due to nerve compression” and disclosing his regular consultations with a neurosurgeon at Westmead. The plaintiff has not tendered any medical opinion to contradict Dr Robertson’s findings, nor has he given any evidence or made a submission that he will be in a position to do so or that he proposes to do so. If he was able to obtain a report contradicting Dr Robertson and demonstrating causation of injury to his right leg by battery committed in St George Hospital, that should have been served with his statement of claim under r 31.36, or in support of his application for summary judgment. There has been no suggestion from the plaintiff to the Court that he would be able to adduce such evidence if the matter should proceed to trial.

14. [66]

    With respect to the plaintiff’s claim that he was injected with hepatitis B virus during the urological procedure at St George Hospital on 23 March 2021, Dr Chauhan’s clinical notes record that the plaintiff supplied a blood sample on 22 March 2021 at 10:46, during the morning before his admission to the hospital at 18:06 that day. Hepatitis serology was carried out on the sample and hepatitis B surface antigen and core antibody were detected, indicating extant infection. This evidence is annexed to one of the plaintiff’s affidavits. It shows that he would be unable to prove that hepatitis B infection was initiated by anything done in the hospital. Assuming that the plaintiff claims damage as a result of acquiring viral infection from the alleged injection – which he has not pleaded – there is no expert medical evidence to indicate that he could have been adversely affected given that he already had the disease. That is a deficiency in this aspect of the plaintiff’s case that could not be overcome at trial. It is additional to the apparent inability of the plaintiff to identify any record of such an injection having been administered or to attest to it himself or to adduce eyewitness evidence of the alleged event.

15. [67]

    The plaintiff’s claim that “several Neuro-Physio tests” were performed on him on the afternoon of 24 March 2021, as alleged in par 7(v) of the statement of claim (quoted at [26] above) has not been supported, on his application for summary judgment, by any evidence from himself or any other witness. The St George Hospital records contain no mention of the performance of any such tests. There is no expert medical evidence to substantiate that such tests were carried out or, if they were, that any injury or damage to the plaintiff was thereby caused. Summary judgment for this part of the statement of claim must be refused. The pleading contains no allegation of damage caused by these tests, if they occurred. Nor was any expert evidence adduced by the plaintiff to describe the nature of such tests or any mode of causation of harm. There is no evidence or submission from the plaintiff to the effect that support for these allegations could be found if the matter were to proceed to trial. The claim in par 7(v) must be dismissed summarily.

16. [68]

    The plaintiff’s claim in par 7(vi) of the statement of claim that he was discharged from St George Hospital on the afternoon of 24 March 2021 without information as to his condition, particularly his low potassium level, is directly refuted by the undisputed hospital record summarised at [48] above. That is sufficient to dispose of the plaintiff’s claim to summary judgment in respect of that allegation of negligence and to entitle the defendant to summary dismissal of it.

The plaintiff’s claim to judgment by default

1. [69]

   Although it was not expressly stated by the District Court Registrar on 13 December 2022, in my view it was clear from his directions that while the plaintiff was in default with respect to r 31.36 and while procedural steps were to be undertaken before the plaintiff was required to comply with that rule, the time for filing a defence did not run against the defendants. As earlier noted, the plaintiff has never complied with, nor obtained any dispensation from the operation of r 31.36. Since the transfer of the proceedings to this Court, the defendants have been entitled to act on the basis that they have not been required to file a defence while their application for summary dismissal has remained to be determined. The plaintiff’s claim to judgment in default of the filing of a defence must be dismissed.

The plaintiff’s application to file a further amended statement of claim

1. [70]

   The plaintiff’s proposed further amended statement of claim contains in pars 38-46 allegations of misleading and deceptive conduct by the first, second and third defendants, invoking the Trade Practices Act 1970 (Cth) and the Australian Consumer Law (Cth). In pars 47-56 there are allegations of unconscionable conduct by all defendants contrary to the same Commonwealth Acts. In pars 57-62 breaches of fiduciary duty by the third and fifth defendants are alleged and in pars 63-70 breaches of contract by the first and fourth defendants. All these legal formulations are based upon allegations of fact that are to be found in pars 1-37, which are identical to paragraphs so numbered in the current statement of claim. I have concluded that those factual allegations are so incapable of being established at trial that there is no warrant for allowing them to proceed to a final hearing in the usual way. It follows that there would be no justification for allowing the proposed amendment. The plaintiff’s notice of motion filed on 25 July 2023 must be dismissed.

Overview of the plaintiff’s history of failed litigation

1. [71]

   The numerous proceedings commenced by the plaintiff in the 10 years spanning 2013 to November 2022 – at least 11 separate matters, including appeals and applications for leave to appeal – are likely to have cost the various defendants and respondents, collectively, in the order of $1 million in legal fees. In addition to that, the cost to the University and to the public hospitals of diverting senior staff from their usual duties to provide instructions for making answer to these numerous claims must have been considerable. I have not surveyed what costs orders have been made across all the proceedings. It is doubtful that the plaintiff could satisfy any costs orders against him. He told the District Court judge who tried his personal injury claim that since arriving in Australia he has had employment as a process worker, a labourer and a taxi driver. He deposed in connection with the notices of motion before me that he had driven taxis between April 2000 and February 2020 and again since April 2021. It seems unlikely that he would have significant means. He has deposed that he now receives Centrelink benefits. I infer that the plaintiff must owe a substantial debt to the Commonwealth in respect of his tertiary studies.

2. [72]

   The overall effect of the plaintiff’s litigious activity has been to inflict significant loss on public institutions – the University, the hospitals and the courts – to the detriment of the community, in whose interests the people of those institutions endeavour to provide their services efficiently, conserving public funds and resources for their proper objects. Individual judges can do no more than determine the specific proceedings brought before them. Despite feeling a responsibility to address the cumulative effect of this barrage of misconceived, futile and publicly damaging litigation, the only course available to a judge would be to invoke the unsatisfactory provisions of the Vexatious Proceedings Act 2008 (NSW).

3. [73]

   That Act is only engaged when significant abuse of process has already occurred. Applications pursuant to its provisions often do no more than absorb further resources of the Court and of aggrieved parties, who find themselves engaged upon contestable issues to which the Act gives rise. The following sections are relevant:

4. [74]

   I have considered whether the plaintiff should be given an opportunity to be heard pursuant to sub-s (3), with a view to the Court acting on its own motion to make a vexatious proceedings order against him under s 8(4), if seen fit. I have also considered whether the Court should recommend to the Attorney General pursuant to sub-s (6) that consideration be given to bringing an application for such an order. I recognise that the University, the hospital administrations and other potential applicants, such as the Attorney General, may not consider that the plaintiff’s various proceedings have been brought “to harass or annoy” or “to achieve a wrongful purpose”, within the meaning of s 6(b) or (d), or at least they may be unwilling to assume the burden of proving such propositions. Those subparagraphs of s 6 may be interpreted as involving a subjective test: Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [14]-[22] (Basten JA). For a vexatious proceedings order to be made, the Court, either of its own motion or in determining an aggrieved party’s application, would likely have to be satisfied that the plaintiff has initiated proceedings “without reasonable ground” (s 6(c)) and that he has done so “frequently” (s 8(1)(a)).

5. [75]

   The cases show that judicial conclusions on these issues vary widely. An example is Palmer v Mohareb [2019] NSWSC 975 in which I concluded that Mr Mohareb had commenced 10 proceedings against Mr Palmer “without reasonable cause”. In the Court of Appeal the majority held that only five proceedings answered that description and the dissenting judge identified only three, of which it was said that one “did not constitute a serious example of vexatious proceedings” and another was “not at the high-end of the scale”: Mohareb v Palmer (No 2) [2020] NSWCA 324 at [44, [47]. Many instances could be cited of proceedings under the Act that have taken on a life of their own, with more than one excursion to the Court of Appeal. As a cure for defendants who find themselves facing repetitive unmeritorious claims in the courts, the Vexatious Proceedings Act often proves worse than the disease.

6. [76]

   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:

7. [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.

8. [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.

9. [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.

10. [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

1. [81]

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

   1. (1)

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

   2. (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. (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. (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. (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. (6)

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