FEDERAL COURT OF AUSTRALIA

Kitoko v University of Technology Sydney [2018] FCA 1004

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    Vangu Kitoko seeks an extension of time in which to file a notice of appeal from the decision of the Federal Circuit Court dismissing his claim that he had been the victim of unlawful discrimination by the University of Technology Sydney, the respondent, on the grounds of, first, his race, as a black African, and, secondly, disability by reason of physical and mental injuries that he suffered in an accident at Mirvac’s Broadway shopping centre in 2010, during the first year of his PhD study.

Background

2    Mr Kitoko had complained to the Australian Human Rights Commission, under the provisions of the Australian Human Rights Commission Act 1986 (Cth) in respect of the alleged discrimination, based on the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth). After the Commission was unable to resolve that complaint, he commenced proceedings in the Court below.

3    His Honour delivered judgment on 28 March 2018, and Mr Kitoko filed the present application on 1 May 2018, outside the 21 days allowed by r 36.03(a) of the Federal Court Rules 2011.

4    Mr Kitoko filed evidence to show that, in the period during which he exceeded the 21-day period to file his appeal, he continued to suffer from an adjustment disorder, with depressed mood. His treating general practitioner had said, in a medical certificate, apparently dated 26 April 2018, that Mr Kitoko’s adjustment disorder was of sufficient severity to prevent his attendance at work until 4 May 2018. Mr Kitoko also provided an emergency department discharge referral from Canterbury Hospital, dated 24 April 2018, supporting the fact that he had been suffering from the conditions that his general practitioner described.

5    The University accepts that Mr Kitoko’s explanation for his delay in seeking to commence his appeal out of time is, albeit vaguely stated, not plainly unreasonable. It also accepts that the delay was only brief, and does not suggest that it is prejudiced. However, it contended that it would be futile to extend time to allow Mr Kitoko the extension he needs to bring an appeal, because, such an appeal could not realistically succeed.

6    An application for an extension of time in which to file an appeal, or leave to appeal, challenges a respondent’s vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] and see also at 539-543 [66], where Kirby J applied the same test. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.

The trial judge’s reasons

7    The trial judge’s judgment is detailed and lengthy. In essence, Mr Kitoko complained that he was the victim of racial discrimination, because of his African heritage and race and that he was, in effect, tortured by the University in the circumstances that led to it to determine that his candidature for a degree of Doctor of Philosophy would be discontinued. The University made that decision initially in May 2015, and later when its appeals committee dismissed his appeal on 3 August 2015. Mr Kitoko made many allegations in the proceedings, the substance of which centred on his contention that his thesis supervisor, Professor Hung Nguyen, alone or with other staff, had discriminated against him.

8    His Honour found that Mr Kitoko’s complaint was that he had been discriminated against because, and for reasons that, he was a “black African”, and was suffering from a disability, albeit that his Honour found Mr Kitoko had not clearly articulated what his relevant disability was.

9    Mr Kitoko developed an elaborate conspiracy theory that his Honour described as “fanciful”, for reasons which appear to me to be insusceptible of attack on the appeal. The alleged conspiracy involved Mr Kitoko asserting that Professor Nguyen’s conduct towards him was motivated by the professor’s reaction to Mr Kitoko’s complaint that Concord Private Hospital, at which he sought treatment, had discriminated against him in circumstances where, after the events in question, the professor’s son had been offered, and appointed to, a position.

10    Mr Kitoko also alleged that Professor Nguyen had colluded with Mirvac, against which Mr Kitoko had brought compensation proceedings based on his accident in Broadway shopping centre that the District Court of New South Wales ultimately dismissed. The Court of Appeal of the Supreme Court of New South Wales dismissed Mr Kitoko’s appeal from the decision. His Honour said:

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

11    After examining those allegations in detail, his Honour found that Mr Kitoko’s conspiracy theory was fanciful. I agree.

12    Mr Kitoko alleged that, at one point which his Honour said was not clear, Professor Nguyen had abandoned Mr Kitoko as a student despite the Professor’s responsibility to supervise him. The trial judge found that, throughout the period to about June 2013, Professor Nguyen, in fact, had supported Mr Kitoko’s application for, among things, a six-month extension to his PhD scholarship, and that any claim that, prior to June 2013, Professor Nguyen had abandoned Mr Kitoko failed.

13    His Honour then considered whether subsequent events supported such a claim. The trial judge found that Mr Kitoko had approached his studies from late 2014 and in 2015 by ignoring the reasonable requirements of the University for his academic progress that both Professor Nguyen and Associate Professor Mehran Abolhasan had provided to him, and instead, chose to pursue his own course.

14    On 8 October 2014, Mr Kitoko met with Professor Nguyen and Associate Professor Abolhasan to determine a course of action so that Mr Kitoko’s by now protracted attempt to submit his thesis, should be brought to a conclusion. Professor Nguyen, at the meeting, raised major concerns with a number of chapters in the thesis and papers that Mr Kitoko had written. His Honour found that the academics squarely put the University’s concerns about Mr Kitoko’s academic progress to him at the meeting and that that was not the first occasion when such concerns had been put to him. The trial judge found that, in the circumstances, the course of action the University proposed at that time appeared to be reasonable; that is, it did not involve any form of discrimination of which Mr Kitoko complained. He also found that the evidence to that stage provided strong support, first, for the University’s contention that Mr Kitoko’s ultimate discontinuation as a PhD student was due to his poor academic progress, and secondly, against his contention that he had been the subject of any form of discrimination by reason of his being a black African or having any disability.

15    His Honour found that on 12 December 2014, Mr Kitoko had been given further notice of his unsatisfactory academic progress, including his failure to demonstrate his research system, and to compile all necessary information about research protocols, proof of ethics clearance and the classification of disability for the people who had participated in his research, that he had agreed to provide within two weeks at the meeting of 8 October 2014.

16    Having had the benefit of seeing both Mr Kitoko, Professor Nguyen and other witnesses in the witness box give oral evidence, the trial judge did not accept Mr Kitoko’s evidence of incidents that he claimed had occurred that might have supported his case. These alleged incidents, that his Honour rejected, included Mr Kitoko’s assertions that, first, at some time, Professor Nguyen had told Mr Kitoko not to come into his office because he was allegedly the least intelligent student that he had encountered in his whole career as an academic, and secondly, on 18 February 2015, Professor Nguyen had physically threatened Mr Kitoko.

17    The trial judge found that the purpose of the meeting on 18 February 2015 was, so far as Professor Nguyen and the University were concerned, to give Mr Kitoko a final opportunity to complete his thesis.

18    Although Mr Kitoko said in his oral submissions today that the trial judge had stopped him cross-examining witnesses, other than Professor Nguyen, about the alleged assault, his Honour recorded (at [131]) that Mr Kitoko had failed to cross-examine both Associate Professor Abolhasan and Aki Plume (Manager of the Graduate Research School), who were both present at the meeting, on his assertion that Professor Nguyen had physically threatened to attack him on 18 February 2015. There was another witness, a Phyllis Agius, who had taken the minutes, about whom his Honour said nothing in relation to cross-examination on this incident. Mr Kitoko also asserted orally today that his Honour had stopped his cross-examination of Ms Plume, but there is nothing before me to suggest that that occurred, in relation to the alleged threat.

19     In the event, his Honour found that when Mr Kitoko attended the meeting of 18 February 2015, he said that he needed certain equipment to verify particular data results in his research. At that meeting, Professor Nguyen and Associate Professor Abolhasan agreed that Mr Kitoko could source equipment in the following week and purchase it to the value of $2,000 and conduct his experiments. But, they required that all of his further work and the writing of his thesis had to be completed by the end of June 2015, and stipulated that no further extension of his academic studies would be possible. They told Mr Kitoko that Ms Agius would supply him with names of proof readers for his thesis.

20    His Honour found, that subsequently, the equipment that Mr Kitoko identified he wanted was purchased. Mr Kitoko later complained that it was not appropriate equipment or was not able to be linked to an appropriate computer so that results necessary for his research could be produced.

21    On 19 May 2015, the University wrote to Mr Kitoko advising him that his enrolment in the PhD program had been discontinued. However, it appeared that, in June 2015, the University paid him $500 for proofreading of his thesis. He contended that, in some way, that meant that the University’s earlier decision to discontinue his enrolment was not operative, or it was evidence, somehow, of the discrimination of which he complained, and that the payment of the proofreading money showed that the Dean had approved the completion of his thesis.

22    The trial judge found that that the $500 payment did not itself establish the proposition for which Mr Kitoko contended, and that Mr Kitoko’s argument ignored, among other things, what had happened between him and the University in the period between February 2015 and May 2015, including its letter of 19 May 2015.

23    His Honour found that, on 14 May 2015, Associate Professor Abolhasan recommended to the Dean that Mr Kitoko’s candidature be discontinued for four reasons: first, Mr Kitoko had exceeded the maximum time for any candidature by one and a half years, secondly, he had received two successive unsatisfactory reviews of progress, thirdly, he had produced a thesis that was not suitable for examination, and, fourthly, he had failed to produce necessary information to allow his thesis to be examined, despite having had the opportunity to do so, and had not provided a sufficient reason for the failure. The trial judge found that, on the evidence, each of those reasons was reasonably available to Associate Professor Abolhasan and were based on the information before him so as to justify the decision communicated in the University’s letter of 19 May 2015.

24    Mr Kitoko appealed against the Dean’s decision on 5 June 2015. On 3 August 2015, the appeals committee of the University’s academic board dismissed his appeal. The Dean communicated the dismissal to Mr Kitoko in a letter dated 7 August 2015, but the minutes of the appeals committee meeting were not finalised until 10 August 2015. Mr Kitoko alleged that, in some way, the minutes had been fabricated to support the writing of the letter of 7 August 2015. He was unable to explain in his oral submissions today, any better than he had been unable to explain to his Honour, how, first, there was any evidence of fabrication and, secondly, even if there were, what it did to support his case. That is because the only relevant fabrication could be that the Dean’s letter of 7 August 2015 may not have reflected what the appeals committee had decided, in circumstances where the University appears to have proceeded on the basis that it did. In my opinion, the argument has no substance.

25    In essence, his Honour found that there was nothing in the evidence to support Mr Kitoko’s belief that Professor Nguyen or anyone else at the University had acted adversely to his interests because, or by reason, of his being a black African or for any putative disability. He found that parts of Mr Kitoko’s submissions not only lacked any probative evidence but were fanciful. In particular, the trial judge said that there was no rational basis for Mr Kitoko’s conspiracy theory involving his treating doctor at Concord Private Hospital allegedly discriminating against him because he was a black African, the “Mirvac Network” and Professor Nguyen’s son’s employment at the hospital.

26    His Honour found that there was just no basis to conclude from Mr Kitoko’s assertions that Professor Nguyen had discriminated against Mr Kitoko because he was a black African and that, even on Mr Kitoko’s own assertion of what the alleged conspiracy was, Professor Nguyen’s motivation was not racial but was motivated because of some connection to his own son. His Honour found that there was nothing before him to doubt Professor Nguyen’s evidence that denied Mr Kitoko’s allegations that the Professor had colluded with others to falsify footage of the accident at Broadway shopping centre. His Honour found that there was no collusion between Professor Nguyen and the “Mirvac Network”.

27    Ultimately, his Honour found that the discontinuation of Mr Kitoko’s PhD candidature occurred because of his unsatisfactory academic progress and not because of any form of discrimination against him, as alleged. He also rejected Mr Kitoko’s evidence and claim that Professor Nguyen had discriminated against him or threatened him at the meeting on 18 February 2015.

The proposed appeal

28    The draft notice of appeal sets out numerous findings of fact that Mr Kitoko wishes to challenge as erroneous. He has appeared and ably represented himself and put all of the arguments that could be put, for the purposes of seeking to establish that there was sufficient merit to warrant his case being granted leave.

29    Essentially, Mr Kitoko is seeking to challenge virtually all of the trial judge’s findings of fact at which he arrived after seeing and hearing witnesses, including Mr Kitoko, based on, essentially, Mr Kitoko’s interpretations or assertions of those errors. Mr Kitoko did not point to any incontrovertible facts, uncontested testimony or other objective evidence of what had occurred that showed any possibility of error by the trial judge in his findings of fact. Nor did Mr Kitoko identify any basis on which he could contend that his Honour’s findings were susceptible to an attack as “glaringly improbable” or “contrary to compelling inferences”. In my opinion, there is no reasonable prospect that any such challenges could possibly succeed: see Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 558-559 [43] per French CJ, Bell, Keane, Nettle and Gordon JJ.

Conclusion

30    In those circumstances, I am satisfied that Mr Kitoko’s proposed appeal appears to be flimsy and weak on its merits and not such as would justify a grant of an extension of time. I order that the application for an extension of time be dismissed with costs.

Associate:

Dated:    2 July 2018