FEDERAL COURT OF AUSTRALIA

Kitoko v Sydney Local Health District [2025] FCA 914

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the respondents’ costs as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    By an interlocutory application filed on 24 February 2025, the respondents seek orders entering summary judgment in their favour pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules). Alternatively, the respondents seek orders striking out the originating application pursuant to r 26.11 of the Rules.

2    The proceedings relate to various claims made by the applicant (Mr Kitoko) as to the medical advice and treatment he received at Canterbury Hospital on 21 March 2021 and at St George Hospital later in March and in April 2021. The respondents are:

(a)    the Sydney Local Health District (SLHD), the first respondent, which operated Canterbury Hospital;

(b)    Ms Teresa Anderson (Ms Anderson), the second respondent;

(c)    Ms Fatima Santiago Pioquinto (Ms Pioquinto), the third respondent;

(d)    the South Eastern Sydney Local Health District (SESLHD), the fourth respondent, which operated St George Hospital; and

(e)    Mr David Qui (Mr Qui), the fifth respondent.

3    Mr Kitoko’s claims against the respondents are pleaded in a document styled as the “First Amended Statement of Claim” filed on 10 December 2024 (FASOC). And, the relief that he seeks is set out in the Originating Application filed on 11 November 2024. As explained further below, Mr Kitoko claims that the respondents variously breached their respective duties of care owed to him, fiduciary duties, and contractual obligations. Mr Kitoko also claims that the respondents engaged in misleading and deceptive conduct, unconscionable conduct, and also acted in concert in a conspiracy to injure him.

4    In essence, the respondents submit that the proceedings that have been instituted against them by Mr Kitoko should be dismissed on the ground of issue estoppel, Anshun estoppel or as an abuse of process. The respondents say that the claims made by Mr Kitoko in the FASOC are the same or similar to those that they have already successfully resisted in proceedings before the Supreme Court of New South Wales. The respondents submit that in these circumstances it would be oppressive and unfair for them to be met with the same or similar allegations.

5    Alternatively, or additionally, the respondents submit that the proceedings should be dismissed as the claims pleaded in the FASOC have no reasonable prospects of success and/or are of such a nature that they should be struck out without leave to re-plead.

6    It is necessary for me to observe at the outset that Mr Kitoko was self-represented. In view of this, I provided him with an opportunity to file written submissions which were of greater page length than those I ordered to be filed by the respondents. Mr Kitoko appeared in person at the hearing before me. At the conclusion of that hearing, I provided him with an opportunity to file and serve supplementary submissions in the event that there were any other matters he wished to address arising from the oral submissions made on behalf of the respondents. Mr Kitoko took up that opportunity.

7    Further, following the adjournment of the hearing with judgment being reserved and after considering the parties’ supplementary submissions, I considered there was insufficient attention given to particular matters. As such, I directed that the parties file and serve further submissions as to (a) issues arising from the judgment in UBS AG v Tyne [2018] HCA 45; 265 CLR 77, and (b) whether Mr Kitoko had properly understood and responded to the respondents’ contentions that the proceedings should be dismissed under s 31A of the FCA Act or should otherwise be struck out without leave to re-plead even if I was not satisfied that the Respondents had established an issue estoppel, Anshun estoppel or an abuse of process. In taking this course, I very much had in mind, and was conscious of, the fact that Mr Kitoko was self-represented and should have the opportunity to be informed of the points being raised against him and thereby have a further opportunity to make submissions.

8    It is also necessary to observe that the respondents’ application was heard together with separate but related proceedings (NSD 1043 of 2024) by which Mr Kitoko sought an extension of time to apply for leave to appeal from the judgment in Kitoko v University of Technology Sydney [2021] FCA 360 (Griffiths J).

9    For the reasons that follow, I have determined that the present proceedings should be summarily dismissed and that Mr Kitoko should pay the respondents’ costs as agreed or taxed.

2.    MR KITOKO’S PREVIOUS PROCEEDINGS AGAINST THE RESPONDENTS

10    Mr Kitoko has been the moving party in a multitude of proceedings in other courts and tribunals, as well as in this Court. As set out in my separate reasons in Kitoko v University of Technology Sydney (No 3) [2025] FCA 915, most of the other proceedings that Mr Kitoko has commenced in various courts and tribunals have in one way or another related to:

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

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

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

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

11    The principal parties in these other proceedings have included:

(a)    the University of Technology Sydney (UTS) and various officers of UTS;

(b)    Mirvac Real Estate Pty Ltd (Mirvac), the apparent operator of the Broadway Shopping Centre;

(c)    lawyers acting for Mirvac;

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

(e)    lawyers acting for Access Group;

(f)    SLHD and officers of SLHD including Ms Anderson;

(g)    the University of New South Wales; and

(h)    Community Migrant Resource Centre (CMRC).

12    As will be apparent from the above, the present proceedings are not the first ones which Mr Kitoko has brought against SLHD. Although each of the proceedings brought against the individuals referred to in (a)–(h) above related to events that are distinct from the events the subject of these proceedings, they do provide some context for aspects of the claims that Mr Kitoko advances in the FASOC, as set out below.

13    Mr Kitoko’s distinct complaints about the advice and treatment that he received at Canterbury Hospital on 21 March 2021 and at St George Hospital later in March and in April 2021 have been the subject of earlier proceedings in the Supreme Court of New South Wales that were determined unfavourably to Mr Kitoko and were also the subject of earlier proceedings commenced in this Court which were discontinued. It is necessary now to turn to these earlier proceedings.

2.1    The Supreme Court Proceedings

14    On 2 November 2022, Mr Kitoko commenced proceedings against the respondents in the District Court of New South Wales (File No: 2022/00329827). Those proceedings were subsequently transferred to the Supreme Court of New South Wales (SC Proceedings).

15    Mr Kitoko was the plaintiff in the SC Proceedings. The defendants in the SC Proceedings were the same as the respondents in the present proceedings.

16    The SC Proceedings were summarily dismissed: see Kitoko v Sydney Local Health District [2023] NSWSC 898 (Fagan J) (SCJ). Mr Kitoko’s application for leave to appeal from this decision was dismissed by the Court of Appeal of New South Wales: see Kitoko v Sydney Local Health District [2024] NSWCA 49 (Ward P and Gleeson JA).

17    Mr Kitoko subsequently sought special leave in the High Court of Australia, which was refused on 6 September 2024: Kitoko v Sydney Local Health District "SLHD" ABN 17 520 269 052 & Ors [2024] HCASL 210.

18    It is necessary to set out the claims that were made in the SC Proceedings and the reasons why Fagan J reasoned that they should be summarily dismissed.

2.1.1    The claims made in the Supreme Court Proceedings

19    The claims made by Mr Kitoko in the SC Proceedings were pleaded in the Statement of Claim filed in the District Court on 2 November 2022, as amended in the First Amended Statement of Claim filed on 25 November 2022 (which I will refer to for convenience as the “SC ASOC”). As Fagan J explained, the causes of action pleaded in the SC ASOC were “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: SCJ [5].

20    Section B of the SC ASOC at [5]–[10] set out the “Facts” upon which Mr Kitoko based his claims. Mr Kitoko’s first set of allegations concerned events occurring at Canterbury Hospital on 21 April 2021. Relevantly, Mr Kitoko pleaded as follows at [5]–[6]:

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.

21    The Hon. Julie Owens was the former Minister of Parliament for Parramatta.

22    Paragraph 6 of the SC ASOC contained particulars styled as “Particulars of SLHD” as follows:

        PARTICULARS OF SLHD

i.     On 21 March 2021, the Plaintiff and the Plaintiff’s Daughter (Veronique Kitoko) presented to Emergency Department (ED) at Canterbury Hospital;

ii.     The Plaintiff’s Daughter was suffering with severe periumbilical pain and she has been diagnosed with UTI – lower urinary tract infection and has been treated with an Antibiotic (Oral Cefalexin 250 mg/5ml);

iii.     In regard to the Plaintiff, 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).

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 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 SLHD, no assistance will be provided to you otherwise we have risk to lose our jobs”.

        PARTICULARS

    The Plaintiff relies on medical report dated 21 March 2021.

23    The essence of the allegation was that employees at Canterbury Hospital identified that Mr Kitoko had kidney failure but refused to give him information about his condition and discharged him without treatment or warning, particularly with respect to his low potassium level.

24    Next, Mr Kitoko pleaded the facts relating to the events occurring and arising from his attendance at St George Hospital on 22 March 2021 and in April 2021. Relevantly, in the SC ASOC at [7], Mr Kitoko pleaded that:

7.    As result, at any material of time around in or between 22 March 2021 and 19 April 2021, the Plaintiff has been admitted at St George Public Hospital for treatment.

25    Paragraph 7 of the SC ASOC contained lengthy particulars styled as “Particulars of SESLHD” as follows:

PARTICULARS OF SESLHD

i.    at any material of times, around or on 22 March 2021, the Plaintiff presented at Emergency Department (ED) at St George Public Hospital. He has been admitted suffering with severe abdominal right flank pain. The Plaintiff was diagnosed with his kidney failure (around 32% of functioning) and also significant low level of potassium (3.2 mmol/L that caused weakness in muscle) and with kidney stone issue;

ii.    At any material times, around or on 22 March 2021, while the Plaintiff was admitted at [St] George Public Hospital, SESLHD or David contacted SLHD’s employer, agent or consultant for the purpose of follow-up of the Plaintiff’s health condition.

iii.    At any material times, around or between 22 March 2021 and 24 March 2021, while the Plaintiff was admitted at [St] George Public Hospital, SLHD or Teresa in concert with UTS, Hon. Julie, Mirvac’s Network and/or others whose names are unknown to the Plaintiff induced, intimidated and/or coerced SESLHD’s employer, agent or consultant or David to injuring or harming the Plaintiff as retribution.

PARTICULARS

    At any material times the Plaintiff was admitted at George Public Hospital, around or on 23 March 2021 between early morning to early afternoon, but prior to the surgery,

A.     The fifth Defendant was a Junior Medical Officers in charge of treating the Plaintiff in the Department of Urology at St George Public Hospital-NSW.

B.     In five different occasions, the fifth Defendant asked the Plaintiff to confirm if is he a Biomedical Engineering Researcher from the UTS? In all five different occasions, the Plaintiff said: yes, I am.

iv.     In that, while SESLHD or David knew or ought to have known that the Plaintiff was suffering with significant low level of potassium (Weakness in muscles), 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 David and/or SESLHD employees, agents or consultants.

v.     following this procedure, at any material times, around or on 24 March 2021 at early afternoon, while the Plaintiff was eating his lunch and his wife was visiting him, the fifth Defendant had visited the Plaintiff and had obliged the Plaintiff to stop eating lunch. The Plaintiff had abandoned his lunch and the fifth Defendant had performed several Neuro-Physio Tests linked to the movements of muscle in the face, in hands and in the feet. These tests took around one (1) hour, but Dr. David failed to explain to the plaintiff information at a level the Plaintiff could understand the purpose of performing these tests in urgence.

vi.     following these tests, at any material times, around or 24 March 2021 late afternoon, the Plaintiff was deliberately discharged by David, without giving information to the plaintiff about his conditions, regarding, a significant low level of potassium condition (3.4 mmol/L);

vii.     at all material times, around or after 24 March 2021 at the evening, the Plaintiff noted pain bilaterally in his lower limb right;

viii.     At all material times, around or on 28 March 2021, the Plaintiff presented at ED at St George Public Hospital. He has been treated with moderate pain bilaterally in his lower limb right and then discharged;

ix.     At all material times, around or on 30 March 2021, the Plaintiff’s pain worsened. The Plaintiff presented at ED at St George Public Hospital. He has been admitted and treated with severe pain in his lower limbs acutely worsened on the right-hand side, worse on weight-bearing and dorsi-flexion, and then discharged on 31 March 2021 in the late morning;

x.     SESLHD’s or David’s deliberate and reckless disregard for the safety and reasonable treatment of the Plaintiff caused an unusual event that subsequently caused injury to the Plaintiff.

PARTICULARS

(a)     a medical report confirmed that, at all material times around or on 24 March 2021, the Plaintiff was suffering with low level of potassium (3.4 mmol/L that caused weakness in muscle).

(b)     a medical report dated 24 March 2021 had confirmed that, at all material times, around or on 23 March 2021, while the Plaintiff was sleep and completely unconscious under general anaesthesia anaesthetics, 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 David and/or SESLHD employees, agents or consultants.

(c)     as, at all material times, around or on 23 March 2021, the plaintiff weighted around one-hundred kilograms (100 kgs), a medical report dated 24 March 2021 had confirmed that, David and/or SESLHD’s employers, agents or consultants was or were unable to advance sensor-wise due to angle of ureter at 30 degree and the impact of plaintiff’s weight (100kgs). The report confirmed:

(i)     attempt with slippery wire unsuccessful initially.

(ii)     attempt with distal ureteroscope unsuccessful.

(iii)     ultimately able to pass angled tip slippery wire cachet renal pelvis

26    The effect of these pleadings and particulars were that Mr Kitoko claimed that he presented at the Emergency Department of St George Hospital on 22 March 2021 suffering severe abdominal right flank pain and kidney failure and that he was there subjected to various other forms of retributive conduct and injury.

27    Paragraph 8 of the SC ASOC pleaded that SESLHD (or its employees, contractors or consultants) in concert with the Hon. Julie Owens MP, Mirvac and/or UTS and others whose names were unknown to Mr Kitoko “purported to discipline” him.

28    Paragraph 9 of the SC ASOC pleaded that the fifth defendant and/or SESLHD (or its employees, contractors or consultants) “physically and sexually assaulted [Mr Kitoko] on numerous occasions”. Lengthy particulars were provided which, in effect, described actions alleged to have been carried out towards him while under general anaesthetic on 23 March 2021.

29    The SC ASOC at [10] specifically pleaded that “injury or harm” was caused to Mr Kitoko by SLHD’s and SESLHD’s negligence (or that of their employees, contractors of consultants) directly or indirectly in concert with the Hon. Julie Owens MP, Mirvac and/or UTS and others whose names were unknown to him.

30    The SC ASOC at [11]–[17] and at [26]–[27] set out the basis upon which Mr Kitoko claimed that SLHD and SESLHD respectively owed him duties of care. At [21] of the SC ASOC, Mr Kitoko pleaded that SLHD and SESLHD (or their employees, contractors or consultants) breached their respective duties of care. And, at [22] it was again pleaded that the injury or harm was caused by them acting directly or indirectly with the Hon. Julie Owens MP, Mirvac and/or UTS and others whose names were unknown to him.

31    The SC ASOC at [24]–[25] contained pleadings to the effect that Mr Kitoko’s discharge from the Emergency Department of Canterbury Hospital was deliberately done, and was done in circumstances where Mr Kitoko was not provided with information or treatment, such that it would “cause or allow death or serious injury to [Mr Kitoko], and damage to” his kidney functions, muscles and occasion sudden shock.

32    Mr Kitoko again pleaded at SC ASOC [28] that SLHD and SESLHD (or their employees, contractors or consultants) breached their respective duties of care, but set out the following “Particulars of Breach of Duties”:

SLHD Failures

i.     failure to take reasonable care to its patient, the Plaintiff;

ii.     failure to provide a safe and supportive environment on its premises for the Plaintiff as patient and the Plaintiff’s family member;

iii.     failure, by its servants, agents and/or contractors, to act reasonably with care, skill and diligence to diagnose/examine the Plaintiff‘s health conditions, regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (3.1 mmol/L, that caused weakness in the plaintiff’s body muscles);

iv.     the Plaintiff’s significant symptoms being overlooked or dismissed by the first Defendant, the second Defendant and/or the third Defendant:

(a)     regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (Weakness in muscle);

(b)    for the purpose of identifying any faulty, defective, deteriorated in kidney failure (around 32% of functioning) kidney stone issue, and low level of potassium (Weakness in muscle).

v.     failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to ensure that the prescribed medication given to the Plaintiff for the purpose of treating kidney failure (around 32% of functioning), and/or low level of potassium (Weakness in muscle) was at all times reasonably correct or suitable as a reference guide;

vi.     failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to advise or warn the Plaintiff being a patient of material risks associated with, or the risk regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), low level of potassium (Weakness in muscle), and/or prescribing or giving the patient wrong medication for the purpose of treating kidney failure, and/or low level of potassium.

vii.     failure, by its servants, agents and/or contractors, to take reasonable steps to ensure that the information given to the Plaintiff being a patient about the Plaintiff‘s health conditions, regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), and/or low level of potassium (Weakness in muscle) was at all times reasonably correct or suitable;

viii.     failure to advise or warn the Plaintiff being a patient of material risks associated with, or the risk regarding the existence of, or the risk of existence of, deliberate Plaintiff’s discharge from ED of the Canterbury Hospital without the information and without the treatment be given to the Plaintiff:

(a)     regarding the existence of, or the risk of existence of, kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (Weakness in muscle);

(b)    for the purpose of identifying any faulty, defective, deteriorated in kidney failure (around 32% of functioning), kidney stone issue, and low level of potassium (Weakness in muscle).

ix.     alternatively, to (v), failure to take reasonable steps to ensure its servants, agents and/or contractors exercised due skill, care and diligence in carrying out the deliberate Plaintiff’s discharge from ED of the Canterbury Hospital on 21 March 2021. SESLHD Failures

x.     failure to take reasonable care to its patient, the Plaintiff;

xi.     failure to provide a safe and supportive environment on its premises for the Plaintiff as patient and the Plaintiff’s family member;

xii.     failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to keep and/or any proper lookout:

(a)     regarding the existence of, or the risk of existence of, level of potassium (Weakness in muscle);

(b)     for the purpose of identifying any faulty, defective, deteriorated in low level of potassium (Weakness in muscle).

xiii.     the Plaintiff’s significant symptoms being overlooked or dismissed by its servants, agents and/or contractors:

(a)     regarding the existence of, or the risk of existence of, level of potassium (Weakness in muscle);

(b)     for the purpose of identifying any faulty, defective, deteriorated in low level of potassium (Weakness in muscle).

xiv.     failure, by its servants, agents and/or contractors, to exercise due skill, care and diligence to keep the Cystoscopy procedure under any or any proper control;

xv.     failure, by its servants, agents and/or contractors, to take reasonable steps to advise or warn the Plaintiff about the procedure’s risk, or failure, by its servants, agents and/or contractors, to take reasonable steps to advise or warn the Plaintiff of material risks of physical injury inherent in a Cystoscopy procedure.

xvi.     failure, by its servants, agents and/or contractors, to advise or warn the Plaintiff being a patient of material risks associated with, or the risk regarding the existence of, or the risk of existence of, deliberate Plaintiff’s discharge from the Urology Department of the St George Public Hospital without the information and without the treatment be given to the Plaintiff, regarding the existence of, or the risk of existence of low level of potassium (Weakness in muscle);

xvii.     Failure to devise and maintain a suitable system of ensuring that its servants and/or agents, including the fifth defendant, were suitable for the purpose of being entrusted with the care of patients with material risks associated with, or the risk regarding the existence of, or the risk of existence of low level of potassium (Weakness in muscle);

xviii.     Physically and sexually assaulting the plaintiff through its servants and/or agents. including the fifth defendant.

xix.     Failure to warn, train or instruct its employees servants and/or agents, including the fifth defendant of the risks and dangers of patient sexual abuse.

xx.     Failure to institute and maintain a system of training and in-service programs for its servants and/or agents, including the first defendant so as to avoid the risks of patient sexual abuse.

xxi.     Failure through its servants and/or agents, including the fifth defendant, to report the assaults to the police.

xxii.     Failure to explain to the Plaintiff information at a level the Plaintiff could understand the purpose the fifth Defendant had imposed the Plaintiff to abandon his lunch and then he had performed several Neuro-Physio Tests in urgence. These tests took around one (1) hour, and were linked to the movements of muscle in the face, in hands and in the feet.

xxiii.     Discharging the plaintiff from the Urology Department at St George Public Hospital when it knew or ought to have known through its servants and/or agents including the fifth defendant that the plaintiff required guidance and counselling for reasons due to the physical and sexual assaults.

xxiv.     Discharging the plaintiff from the Urology Department at St George Public Hospital so as to avoid the risk that the plaintiff might noted pain bilaterally in his lower limb right connected with the fifth defendant and others had assaulted him.

xxv.     Allowing the fifth defendant and/or others to provide care and treatment, or continue to provide care and treatment, at the Urology Department at St George Public Hospital without ensuring that he was not, or they were not likely to abuse patients.

xxvi.     Entrusting the care of the plaintiff to the fifth defendant.

xxvii.     Employing, or continuing to employ, the fifth defendant and others when it knew or ought to a known that they were likely to patients.

xxviii.     Failing to recognise that the fifth defendant was not a suitable person for the purposes of being entrusted with the care and treatment of patients at the Urology Department at St George Public Hospital.

xxix.     Res ipsa loquitur.

(Emphasis in original to identify amendments).

33    Paragraphs 29, 32–34 of the SC ASOC variously pleaded that SESLHD failed to take effective measures to prevent the physical and sexual assault alleged in paragraph 9, and that SESLHD provided the opportunity, “authorised”, and “knowingly or negligently empowered” the fifth defendant and other of SESLHD’s servants, agents and/or contractors to assault Mr Kitoko.

34    Paragraph 30 of the SC ASOC pleaded that by failing to take effective measures, as alleged in paragraph 29, SESLHD represented to Mr Kitoko and other patients that the fifth defendant and other of its servants, agents and/or contractors were fit and proper persons to assume care and responsibility for his treatment at St George Hospital. In paragraph 31, Mr Kitoko pleaded that in making this representation, SESLHD is “estopped from denying that” the conduct of the fifth defendant and its other servants, agents and/or contractors were “not within the course of their employment”.

35    Paragraph 35 pleaded that the first defendant was vicariously liable for the conduct of the second and third defendant and paragraph 36 pleaded that the fourth defendant was vicariously liable for the conduct of the fifth defendant.

36    Paragraph 37 of the SC ASOC pleaded the allegations of injury and damage with the following particulars (amongst others):

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.

2.1.2    Reasons of Fagan J in dismissing the claims pleaded in SC ASOC

37    In the SC Proceedings, the defendants applied for summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the grounds that they were incapable of being substantiated by evidence, they were frivolous, vexatious and an abuse of process. Alternatively, the defendants sought an order that the SC ASOC be struck out pursuant to r 14.28 of the UCPR, or an order that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) on the basis that it was an abuse of process.

38    Mr Kitoko also filed his own applications in the SC Proceedings. First, he applied for, amongst other things, entry of judgment under r 13.1 of the UCPR and for damages to be assessed or, alternatively, entry of default judgment on the ground that no defences had been filed. Second, Mr Kitoko applied for leave to file a further amended statement of claim to plead allegations of misleading and deceptive conduct, unconscionable conduct, breaches of fiduciary duty and breaches of contractual obligations: SCJ [70].

39    Fagan J summarised the relevant background and the earlier proceedings that Mr Kitoko had brought against various parties, including SLHD at SCJ [7]–[21]. In doing so, his Honour observed that Mr Kitoko had previously brought claims of conspiracy as against various parties including Mirvac, UTS and others and that Griffiths J had dismissed those claims in Kitoko v University of Technology Sydney [2021] FCA 360.

40    His Honour then set out the various claims that Mr Kitoko had pleaded in the SC ASOC at SCJ [22]–[31]. After identifying the applicable legal principles at SCJ [32]–[34], Fagan J then considered Mr Kitoko’s evidence at SCJ [35]–[38] (which included seven affidavits that had been filed and served by him) and observed at SCJ [39]–[45] that Mr Kitoko had failed to comply with r 31.36 of the UCPR which requires the service of an expert’s report in a professional negligence claim supporting beach of duty of care, the general nature and extent of damage alleged, and the causal relationship between the breach of duty and the damage. Fagan J then considered the evidence that had been served by the defendants at SCJ [46]–[52] which included the medical and other records relating to the treatment that Mr Kitoko had received at each of the Canterbury and St George Hospitals.

41    Next, Fagan J considered each of the claims advanced by Mr Kitoko in the SC ASOC and concluded that they should be dismissed.

42    As to the conspiracy claims pleaded in the SC ASOC at [5]–[6], Fagan J set out at SCJ [53] the essential elements of an actionable conspiracy at law including that (a) there must be an agreement between two or more persons, (b) the agreement being 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, (c) that such an agreement is executed in whole or in part, and (d) the acts in furtherance of which cause some pecuniary loss to the plaintiff.

43    Fagan J reasoned at SCJ [54] that Mr Kitoko had neither pleaded all the necessary elements of the conspiracy nor adduced evidence upon which judgment could be entered in his favour. On the other hand, Fagan J reasoned at SCJ [55] that the conspiracy claim should be summarily dismissed because of the insufficiency of the pleading and also because the records tendered into evidence by the defendants (which were not refuted by Mr Kitoko) contradicted Mr Kitoko’s claims. Specifically, his Honour stated at SCJ [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.

44    His Honour was not persuaded to dismiss the conspiracy claims on the additional basis that they were to the same effect as the conspiracy pleaded in the proceedings before Griffiths J. In this regard, Fagan J reasoned that the conspiracies were distinct as they appeared to have different objects: SCJ [56]. Nevertheless, Fagan J was persuaded that Mr Kitoko’s conspiracy allegations were “bound to fail for reasons of deficient pleading and factual refutation, as stated above.”

45    As to Mr Kitoko’s claims concerning the events at Canterbury Hospital, Fagan J was not satisfied on the evidence that judgment should be entered in favour of Mr Kitoko including because he had not pleaded or provided any evidence of the precise injury or damage caused by the alleged negligence relating to his claimed kidney failure and low potassium levels: SCJ [57]. However, Fagan J was satisfied that these claims were doomed to fail and should be summarily dismissed essentially on the basis of the deficiencies in the pleadings and the undisputed evidence before his Honour. As to these matters, his Honour reasoned as follows at [58]–[60]:

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.

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.

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.

46    Justice Fagan reached similar conclusions in relation to Mr Kitoko’s claims concerning the events at St George Hospital. Again, Fagan J had regard to the undisputed evidence that was tendered by way of medical and hospital records. His Honour reasoned that Mr Kitoko was not entitled to summary judgment in circumstances where the evidence established that the procedures performed on him at St George Hospital on 23 March 2021 were done with his informed consent: SCJ [61]. Further, his Honour reasoned that Mr Kitoko was not in a position to give evidence as to anything that was done while he was under anaesthetic or that it exceeded his consent “for the very reason that he was unconscious” and there was no CCTV coverage of the operating theatre or other evidence by which his allegations could be supported: SCJ [61]. As to the balance of the matters, Fagan J reasoned that each of Mr Kitoko’s claims including as to his asserted injuries were not supported by the undisputed evidence, as follows:

(a)    the assertion in the SC ASOC that Mr Kitoko “relies on the incoming report from the Police” to establish that assaults, including sexual assaults, were committed upon him was contradicted by evidence that was adduced by the defendants that although Mr Kitoko made a complaint to police at Kogarah station, “the responsible officers have reported finding no evidence to support the claims and they have closed their investigation”: SCJ [62];

(b)    the claim 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”. Fagan J found that the uncontested hospital records 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”: SCJ [63];

(c)    the claim of “abusive” injury to Mr Kitoko’s right leg and foot was “contradicted by an MRI study performed on 9 June 2021 by Dr Robertson of Castlereagh Imaging at the request of Mr Kitoko’s General Practitioner, Dr Chang”: SCJ [64]. The findings which Dr Robertson reported to Dr Chang accorded with the history Mr Kitoko had given at Canterbury Hospital on 21 March 2021 acknowledging “intermittent low back pain for 10 years due to nerve compression” and disclosing his regular consultations with a neurosurgeon at Westmead: SCJ [65]. Further, Mr Kitoko had not tendered any medical opinion to contradict Dr Robertson’s findings and had not served any reports demonstrating that the injury to his right leg was caused by a battery committed at St George Hospital (which should have been served with his statement of claim under r 31.36 of the UCPR) or in support of his application for summary judgment, and there was no suggestion that he would be able to adduce such evidence if the matter should proceed to trial: SCJ [65];

(d)    as to the claim that Mr Kitoko was injected with the Hepatitis B virus during the urological procedure at St George Hospital on 23 March 2021, Fagan J pointed out that Dr Chauhan’s clinical notes record that Mr Kitoko supplied a blood sample on 22 March 2021 at 10:46 am before his admission to the hospital at 6:06 pm that day: SCJ [66]. Fagan J noted that Hepatitis serology was carried out on the sample and Hepatitis B surface antigen and core antibody were detected “indicating extant infection”: SCJ [66]. Fagan J further observed that this evidence was annexed to one of Mr Kitoko’s affidavits and showed that he would be unable to prove that Hepatitis B infection “was initiated by anything done in the hospital” and there was “no expert medical evidence to indicate that he could have been adversely affected given that he already had the disease”: SCJ [66]. Fagan J reasoned that this was a deficiency that could not be overcome at trial, which was additional to the “apparent inability of [Mr Kitoko] 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”: SCJ [66];

(e)    there was no evidence to support the claim that “several Neuro‐Physio tests” were performed on Mr Kitoko on the afternoon of 24 March 2021: SCJ [67]. Further, Fagan J reasoned that the pleading contained no allegation of damage caused by these tests, if they occurred, and there was no expert evidence to describe the nature of such tests or any mode of causation of harm: SCJ [67]; and

(f)    finally, Mr Kitoko’s 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, was “directly refuted by the undisputed hospital record[s]”: SCJ [68].

47    For these reasons, Fagan J rejected Mr Kitoko’s claim for entry of judgment in his favour and instead summarily dismissed the proceedings.

48    Fagan J also dealt with Mr Kitoko’s application to further amend the SC ASOC. His Honour rejected that application, as follows (at SCJ [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.

49    As noted above (at [16]–[17]), the Court of Appeal refused leave to appeal from the decision of Fagan J and the High Court refused special leave.

2.2    Earlier Federal Court Proceedings

50    Mr Kitoko also commenced proceedings in this Court (NSD 997 of 2022) on 22 November 2022, some three weeks after he commenced proceedings in the District Court proceeding. These proceedings were short lived. Mr Kitoko ultimately elected to abandon the proceedings entirely by way of a notice of discontinuance filed on 31 March 2023. None of the parties to the present proceedings placed reliance on the circumstances of and surrounding these earlier proceedings. Further, and despite my express request, none of the parties tendered the statement of claim that was filed in the earlier Federal Court proceedings that were discontinued by Mr Kitoko. Accordingly, on the evidence before me, little can be said about the subject matter of the earlier Federal Court proceedings and what impact those proceedings might relevantly have had in the resolution of the questions that are presently in issue.

3.    MR KITOKO’S CLAIMS IN THE PRESENT PROCEEDINGS

51    By the Originating Application filed on 11 November 2024, Mr Kitoko seeks various relief as follows:

(a)    “The restoration or replacement of the Applicant’s health condition… for equitable remedies in respect of the breach of the fiduciary duty the Third and Fifth Respondents (David and Fatima) owed to the Applicant”;

(b)    “Equitable compensation… to compensate the Applicant’s loss by reference to the Respondents’ gain”;

(c)    general damages for pain, suffering and loss of enjoyment of life; special damages for out of pocket expenses and damages for economic loss;

(d)    damages for breach of the Australian Consumer Law; and

(e)    aggravated and exemplary damages.

52    The FASOC follows a similar structure to the SC ASOC, but with the addition of claims asserting breaches of fiduciary duties and contractual obligations, and misleading and deceptive and unconscionable conduct.

53    Section B of the FASOC at [5]–[10] sets out the “Facts” upon which Mr Kitoko bases his various claims. As with the SC ASOC, Mr Kitoko’s first set of allegations concern events occurring at Canterbury Hospital on 21 April 2021. Relevantly, Mr Kitoko pleaded as follows at [5]–[6]:

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 Applicant had sued and/or continue suing the University of Technology Sydney (UTS), Mirvac Real Estate (Mirvac’s Network), Sydney Local Health District (SLHD), Community Migrant Resources Centre – Parramatta (CMRC), Federal Member for Parramatta (Hon. Julie), 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 Applicant, 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 Respondents, and others conspired together as a way to injury or harm the Applicant. Hon. Julie, directly or indirectly, in concert with Mirvac’s Network and/or UTS and others whose names are unknown to the Applicant induced, intimidated and/or coerced SLHD or Teresa to place the Applicant’s name in the blacklist, and, in that, SLHD or Teresa instructed Consultant Doctors in SLHD’s Network Hospitals to refuse the Applicant, at any time, to be admitted and treated as a patient at SLHD’s Network Hospitals.

54    It will thus far be apparent that these paragraphs are near identical to the SC ASOC at [5]–[6].

55    Paragraph 6 of the FASOC contained particulars styled as “Particulars of SLHD”. These too are near identical to the particulars to the SC ASOC at [6] as set out above (at [22]).

56    Next, as in the SC ASOC, Mr Kitoko pleads the facts relating to the events occurring and arising from his attendance at St George Hospital between 22 and 24 March 2021. The pleadings and particulars in the FASOC at [9] are entirely identical to those in the SC ASOC at [9]. This fact, coupled with the erroneous use of the words “defendant” and “Plaintiff” instead of “respondent” and “Applicant”, indicates that the paragraph was lifted directly from the SC ASOC. Paragraph 9 of the FASOC pleaded and particularised the allegations of physical and sexual assaults as follows:

9.    From on or around 23 March 2021, the Fifth defendant and/or SESLHD’s and/or SESLHD’s 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, David and/or SESLHD 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, 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, David and/or SESLHD employees, agents or consultants had injected the Plaintiff’s Peroneal Nerve into right lower limb level with unknow substance infected with Hepatitis-B.

PARTICULARS

different specialist reports confirmed permanent damage of nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and damage of tibial ligaments in the right ankle, caused by an abusive spraining of Plaintiff’s right lower limb and right foot during procedures including rigid Cystoscopy at 30-degree, right Ureteroscopy and insertion of right ureteric stent rigid, and also caused by injection of the Plaintiff’s Peroneal Nerve into right lower limb level.

(iii)    The plaintiff is unable to provide the exact dates and exact actions of SESLHD 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.

(iv)    The plaintiff relies on the incoming report from the Police setting out the nature of the assaults which will be used by the police and the plaintiff will refer to those particulars to this court as if fully set out herein as particulars of the sexual assaults committed by the SESLHD’S employees, agents or consultants on the plaintiff.

(v)    The Plaintiff relies also on the discovery to provide this court with further particulars of the physical and sexual assaults committed by the SESLHD’S employees, agents or consultants on the plaintiff.

57    As in the SC ASOC, Mr Kitoko pleads in the FASOC at [8] and [10] that that the respondents and others conspired to injure or harm him including the Hon. Julie Owens, Mirvac’s Network and/or UTS and others whose names are unknown to the Plaintiff. Paragraph 10 relevantly provides as follows:

10.    The injury or the harm was caused by SLHD’s and SESLHD’s, and/or SESLHD’s and/or SESLHD’s employees’, contractors’ or consultants’ negligence, directly or indirectly in concert with Hon. Julie Owen, Mirvac’s Network and/or UTS and others whose names are unknown to the Applicant.

PARTICULARS

The Applicant relies on the material facts pleaded above and the particulars of negligence (Personal Injury) claims filed on 02 November 2022 at NSW District Court (File No: 2022/00329827).

58    The FASOC at [11]–[18] pleads the basis upon which Mr Kitoko claimed that SLHD and SESLHD respectively owed him duties of care. At [18] of the FASOC, Mr Kitoko pleads that SLHD and SESLHD (or their employees or contractors) breached their respective duties of care. And, at [19], as with the SC ASOC, it was again pleaded that the injury or harm was caused by them acting directly or indirectly with the Hon. Julie Owens MP, Mirvac and/or UTS and others whose names were unknown to him.

59    The FASOC at [20]–[21] (as with the SC ASOC at [23]–[24]) contains pleadings to the effect that Mr Kitoko’s discharge from the Emergency Department of Canterbury Hospital was deliberately done, and was done in circumstances where Mr Kitoko was not provided with information or treatment, such that it would “cause or allow death or serious injury to [Mr Kitoko], and damage to” his kidney functions, muscles and occasion sudden shock. The FASOC at [24] pleads that SLHD and SESLHD (or their employees, contractors or consultants) breached their respective duties of care.

60    The FASOC then contains a section headed “Section C: Causes of Action”. It commences at FASOC [25] which pleads as follows:     

25.    In pleading all causes of action, the Applicant relies on the Australian Consumer Law and the Fiduciary law in Australia. The Applicant also rely on the Civil Liability Act 2002 (NSW) in respect of the Applicant on his own behalf takes the Medical Negligence’s (Personal Injury’s) claims against the first, second, third, fourth and fifth Respondents. For the purposes of the causes of action pleaded herein, the Applicant pleads the following causes of action:

a)    SLHD and SESLHD – Medical Negligence Conduct

b)    SLHD or FATIMA - misleading and Deceptive conduct;

c)    SLHD and SESLHD - unconscionable conduct;

d)    DAVID and FATIMA - breach of a fiduciary duty;

e)    SLHD and SESLHD - breach of contract (in alternative, breach of reasonable duty of care, and/or breach of confidence and/or violation of privacy;)

61    The FASOC then seeks to address each of these apparent causes of action.

3.1    Claims in negligence

62    As to the claims against SLHD and SESLHD for “Medical Negligence Conduct”, the FASOC at [26]–[27] pleads as follows:

26.    By reason of section 19 of Civil Procedure Act 2005 (NSW), rule 6.3 of Uniform Civil Procedure Rules 2005 (NSW) and Civil Liability Act 2002 (NSW), the Plaintiff on his own behalf takes the Personal Injury’s (physically and sexually assaults, and the Medical Negligence’s) claims against the first, second, third, fourth and fifth Defendants.

27.    The injury or the harm was caused by breaches of duties of care by SLHD’s or SESLHD’s, and/or SESLHD’s and/or SESLHD’s employees’, contractors’ or consultants’ negligence, directly or indirectly in concert with Hon. Julie Owen[s], Mirvac’s Network and/or UTS and others whose names are unknown to the Plaintiff, of:

(a)    the SLHD and/or SESLHD Statutory Duty; further or alternatively

(b)    the SLHD and/or SESLHD General Duties.

    as referred in the NSW Health Code of Conduct and the Health Services Act 1997 No 154 [NSW].

63    Paragraph 27 of the FASOC contains particulars to the breach of duties which refer to SLHD’s alleged failures and those of SESLHD. These particulars are near identical to those contained in the SC ASOC at [28] as set out above (at [32]). There then followed additional pleadings at FASOC [28]–[35] that appear to plead further failures said to be referrable to SESLHD failing to take any, or any effective, measures to prevent Mr Kitoko from suffering physical and sexual assaults and asserting vicarious liability, as follows (which are near identical to those in the SC ASOC as set out at [33]–[35]):

28.    Further, by SESLHD’s conduct in failing to take any or any effective measures to prevent the SESLHD’s and/or of their servants, agents and/or contractors, including the Fifth defendant (David) from physically and sexually assaulting the plaintiff and allowing him to act as a Patient’s Specialist Doctor, the Third defendant (SESLHD) knowingly or negligently empowered the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors providing them with the opportunity to assault the plaintiff and created or materially increased the risks to which the plaintiff was exposed.

29.    Further, by SESLHD’s conduct in failing to take any or any effective measures to prevent the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors including the Fifth defendant from the physically and sexually assaulting the plaintiff and allowing him to act as a Patient’s Specialist Doctor, the Third defendant (SESLHD) has represented to the plaintiff and other patients that the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors including the Fifth defendant were fit and proper persons to assume the care and responsibility for the plaintiff’s care including his treatment from the Urology Department at St George Public Hospital.

30.    By making the representations referred to above, the Fourth defendant (SESLHD) has brought the conduct of the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors including the Fifth defendant within the course of their employment with the Third defendant (SESLHD) and is estopped from denying that their conduct was not within the course of their employment with the Fourth defendant (SESLHD).

31.    Further, by SESLHD’s conduct in failing to take any or any effective measures to prevent the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors including the Fifth defendant from physically and sexually assaulting the plaintiff, the Fourth defendant (SESLHD) has authorised the acts of the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors.

32.    Further, by SESLHD’s conduct in failing to take any or any effective measures to prevent the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors including the Fifth defendant (David) from physically and sexually assaulting the plaintiff and in making the representations referred to above and allowing him to act as a Patient’s Specialist Doctor, the Fourth defendant (SESLHD) knowingly or negligently impliedly or expressly authorised the assaults of the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors.

33.    Further, the acts of the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors including the Fifth defendant, were part of a course of conduct which occurred at the Urology Department at St George Public Hospital and during authorised excursions whilst the Fourth defendant (SESLHD) and SESLHD’s servants, agents and/or contractors including the Fifth defendant (David) assumed responsibility for the care and the treatment of the plaintiff on behalf of the Fourth defendant (SESLHD) and were closely connected to the Fourth defendant’s (SESLHD’s) enterprise in managing the St George Public Hospital and the course of employment of the Fifth defendant (David) and other SESLHD’s servants, agents and/or contractors who assaulted the plaintiff.

34.    Further, the First Defendant is vicariously liable for the conduct of Dr Teresa and Dr Fatima as their employee:

a)    in discharging the Plaintiff from the ED of Canterbury Hospital on 21 March 2021 without taking or exercising reasonable due skill, care and diligence;

b)    in causing the Plaintiff emotional distress;

c)    in causing the Plaintiff psychological and psychiatric injury.

35.    Further, the Fourth Defendant is vicariously liable for the conduct of Dr David as his employee:

a)    in physically and sexually assaulting the Plaintiff on 23 March 2021;

b)    in causing the Plaintiff emotional distress;

c)    in causing the Plaintiff psychological and psychiatric injury.

64    The FASOC at [36] then pleads the injuries that Mr Kitoko claims to have suffered by reason of the alleged negligence, and also as a result of the physical and sexual assaults.

3.2    Claim of misleading and deceptive conduct

65    The next section of the FASOC at [37]–[45] pleads an apparent cause of action for misleading and deceptive conduct as against Ms Anderson and Ms Pioquinto. The essence of this claim, as best can be discerned, is as follows:

(a)    by the conduct pleaded in the FASOC at [6] and particularised at (iii) and (iv), each of SLHD, Ms Anderson and Ms Pioquinto engaged in conduct that was (a) false or misleading in “contravention of section 53(a) of the TPA and/or section 29(1)(a) of the Australian Consumer Law (ACL)” and “misleading or deceptive, or likely to mislead or deceive, in contravention of section 52 of the TPA and/or section 18 of the ACL”;

(b)    the representations made by Ms Pioquinto (as authorised by SLHD and under the direction of Ms Anderson) on 21 March 2021 that “after all tests carried on, nothing wrong of concern could be found and the third Respondent (Fatima) advised the Applicant to go home and to return to the Canterbury Hospital only if fever, worsening, or any other concerns, which were untrue, inaccurate, or misleading…” were inconsistent with a “medical report” which “confirmed that the Applicant was suffering with severe abdominal right flank pain…[and]… 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).” It was further pleaded that these representations were inconsistent with various obligations under the Health Services Act 1997 (NSW) and the NSW Health Code of Conduct;

(c)    the representations are said to have been fraudulently misleading as they were “Knowingly, recklessly or careless that [they were] was not true or false, and knowingly, recklessly or careless that will cause the loss to the Applicant”;

(d)    it is further pleaded that Mr Kitoko had a reasonable expectation that if certain matters did not exist or were not true that these facts would be disclosed and the relevant failures to disclose these matters gave rise to “Misleading Conduct by Silence”; and

(e)    Mr Kitoko relied upon the alleged misleading conduct, the alleged misleading conduct by silence and the alleged fraudulently misleading conduct in being discharged from Canterbury Hospital without information and without treatment being given by SLHD, Ms Anderson and/or Ms Pioquinto.

66    Thus, there are three types of conduct that Mr Kitoko pleads were misleading: the “Misleading Conduct”, the “Misleading Conduct by Silence” and the “Misleading Representations” (with the latter also defined to be the “Fraudulent Misleading Representations”).

67    The pleadings and particulars as to Mr Kitoko’s loss and damage in respect of this conduct are set out in the FASOC at [44], as follows:

44.     By reason of the matters pleaded in paragraphs 26 to 32 above, the Applicant suffered loss and damage.

PARTICULARS OF LOSS AND DAMAGE

A.    The First Respondent the Second Respondent and/or the Third Respondent are or is strictly liable for suffered damage or loss caused by the Misleading Conduct, the Misleading Conduct by Silence, and/or the Misleading Representations knowingly made by the Third Respondent. In other words, the Applicant is saying "the Third Respondent’s false statements to notify the Applicant that “after all tests carried on, nothing wrong of concern could be found and the third Respondent (Fatima) advised the Applicant to go home and to return to the Canterbury Hospital only if fever, worsening, or any other concerns, in a way that the Applicant would not otherwise have discharged without information, and the Applicant reliance on the Misleading Conduct, the Misleading Conduct by Silence, and/or the fraudulent Misleading Representations have cost or have damaged the Applicant for loss of chance or opportunity, or the First Respondent and/or the Second Respondent are or is strictly liable for the Applicant’s loss of chance or opportunity sustained by breach of the prohibition of misleading or deceptive conduct in trade or commerce imposed within the meaning of s52 of the TPA and/or s18 of the ACL. That had direct consequence to the breach of the terms of Health Services Act 1997 No 154 [NSW] and the terms of NSW Health Code of Conduct’s requirements through the provision of care and treatment.

B.    The assessment of compensatory losses and/or damages is that the Applicant should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss or injury sustained by reason of reliance on Hung’s and/or UTS’s wrongful conducts at the discharging time;

68    It will be apparent from the last of these paragraphs that the loss and compensation claimed relates to the alleged wrongful conduct of an entity and an individual – Mr Hung and UTS – neither of whom are parties to these proceedings. It is a claim for loss and damage that does not appear to be causally connected to the cause of action pleaded against the respondents.

3.3    Claim of unconscionable conduct

69    The next section of the FASOC at [46]–[55] pleads an apparent cause of action for unconscionable conduct. The essence of this claim, as best can be discerned, is as follows:

(a)    SLHD, Ms Anderson and Ms Pioquinto “knew, or ought to have known” of the matters pleaded in “paragraphs 6 and 28(A) above” and, by reason of those matters, “knew, or ought to have known, that the care and treatment and also the advice provided to the Applicant from emergency department (ED) of Canterbury Public Hospital” that he was not safe to be discharged and/or if discharged would be exposed to the “…unnecessary danger and harm attributable to his kidney failure (around 32% of functioning), kidney stone issue, and/or low level of potassium (3.1 mmol/L, that caused weakness in the Applicant’s body muscles)”: FASOC at [46]. The particulars to this pleading repeat the essence of those set out in the FASOC at [6];

(b)    SLHD, Ms Anderson and Ms Pioquinto “knew, or ought to have known” of the matters in “paragraphs 6, 7, 8, 9 and 28(A) above and, by reason of those matters, knew, or ought to have known, that the level of potassium of the Applicant (3.1 mmol/L)” was “not safe to carry-out a Cystoscopy procedure, including rigid Cystoscopy at 30 degree, right Ureteroscopy and insertion of right ureteric stent rigid, from Urology Department (UD) of St George Public Hospital” and, if carried out, would expose Mr Kitoko to “unnecessary danger and harm attributable to permanent damage of nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and damage of tibial ligaments in the right ankle”. The particulars to this pleading repeat the essence of those set out in the FASOC at [7];

(c)    SLHD, Ms Anderson and Ms Pioquinto “knew, or ought to have known” of the matters in “paragraphs 7(x)(c) and 7(x)(d), 8 and 9 above and, by reason of those matters, knew, or ought to have known, that, at all material times, around or on 23 March 2021, while the Applicant was [a]sleep and completely unconscious under general anaesthesia for the purpose of Cystoscopy procedures the fourth and/or the fifth respondents damaged the Applicant’s tibial ligaments in the right ankle, caused by an abusive spraining of Applicant’s right lower limb, and also knew that the fourth and/or the fifth respondents had injected the Applicant’s Peroneal Nerve into right lower limb level with unknow[n] substance infected with Hepatitis-B that damaged permanently nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and then caused the Applicant to be suffering with Hepatitis-B”;

(d)    at these relevant times, “consumers in SLHD, in SESLHD, in NSW and then in Australia were unaware of, and had no means of knowing, the matters which the Respondents knew or ought to have known as alleged and accordingly were in a weaker position (or were in the situation of special disadvantage) than the Respondents” and this “weaker position or the situation of special disadvantage in which the Applicant was placed was the outcome of his reliance on the Defendants’ representations”;

(e)    as a result, this conduct was unconscionable conduct, and was engaged in by the Respondents, “…in the course of business, and in trade or commerce in contravention of s 51AA of the Trade Practices Act (TPA)” and/or “unconscionable conduct, engaged by the Respondents, in the course of business, and in trade or commerce in contravention of s 20(1) of the Australian Consumer Law (ACL)”;

(f)    further, SLHD, Ms Anderson and Ms Pioquinto engaged in “Additional Unconscionable conduct” by reason of their “Misleading Conduct, the Misleading Conduct by Silence, and/or the Misleading Representations”; and

(g)    had the respondents not engaged in this conduct, Mr Kitoko would not have been injected in his “Peroneal Nerve into right lower limb level with unknow[n] substance infected with Hepatitis-B, the Applicant would not have been caused a permanent damage of nerves in the right lower limbs (the denervation of muscles in the right lower limbs) and damage of tibial ligaments in the right ankle, caused by an abusive spraining of Applicant’s right lower limb and right foot during procedures including rigid Cystoscopy at 30 degree, right Ureteroscopy and insertion of right ureteric stent rigid” or, alternatively, would not have been “exposed to the unnecessary danger and harm attributable to permanent damage or loss of his health conditions”.

70    The pleadings and particulars as to Mr Kitoko’s loss and damage in respect of this conduct are set out FASOC [54], as follows:

54.     By reason of the matters pleaded in paragraphs 6, 7, 8, 9 and 28(A), 35 to 42 above, the Applicant who, on 21 March 2021 or between 22 March 2021 to 24 March 2021, was exposed to unnecessary danger and harm attributable to loss of his health condition, suffered loss and damage by reason of the Unconscionable Conduct.

PARTICULARS OF LOSS AND DAMAGE

A.     The First Respondent and/or the Second Respondent are or is strictly liable in damage for Unconscionable Conducts caused by the First Respondent and/or the Second Respondent knowingly Hung’s Fraudulent misrepresentations or Hung’s false statements to induced the Applicant to enter into UTS/Applicant’s PH.D Research Training Contractual Agreement, and/or knowingly UTS’ forgery or fraud to record the Applicant’s Autumn 2014 progress unsatisfactory to breach UTS/Applicant’s PH.D Research Training Contractual Agreement;

B.    The assessment of compensatory damages is that the Applicant should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss or injury sustained by reason of Hung’s false representations and/or UTS’ forgery matters which the First Respondent and/or the Second Respondent knew or ought to have known as alleged and the Applicant was unaware or in a weaker position than the First Respondent and/or the Second Respondent, at any material of time before 12 May 2017;

C.    The amount of damages awarded is intended to do justice between the Respondents and the Applicant, having regard to the principle that the Applicant ought to be placed in the position that he would have been in if the knowingly Hung’s Fraudulent misrepresentations or Hung’s false statements and/or UTS’s forgery matters had not occurred[.]

71    Again, it will be apparent that this claim for loss and damage does not appear causally connected to the conduct of the respondents. Further, it will also be apparent that allegations are made against Mr Hung and UTS, neither of whom are parties to these proceedings.

3.4    Claimed breaches of fiduciary duties

72    The next section of the FASOC at [56]–[61] pleads an apparent cause of action for breaches of fiduciary duties as against Mr Qui and Ms Pioquinto. The essence of this claim, as best can be discerned, is as follows:

(a)    Mr Qui and Ms Pioquinto, as physicians, stand in a fiduciary relationship to Mr Kitoko as their patient, which arises from the nature of a physician-patient special relationship of trust and confidence;

(b)    further or alternatively, Mr Qui and Ms Pioquinto were in a special position of trust and authority in relation to Mr Kitoko and were entrusted with his care and treatment whilst he was a patient at Canterbury Public Hospital and also St George Public Hospital;

(c)    as a result, they each had a duty to act honestly including of utmost good faith and loyalty, to hold information received from or about Mr Kitoko in confidence and to make proper disclosure to him as their patient, a duty not to use information gained in the course of their duties or, a duty not to use information obtained through diagnosing, advising, or treating Mr Kitoko to his detriment, a duty to avoid conflicts of interest and disclose them if they arose, a duty not to benefit him or herself to the detriment of Mr Kitoko as patient, and a “duty to advise or warn [Mr Kitoko] that he was entitled to claim [he] was suffering with severe abdominal right flank pain” in circumstances where he “was diagnosed with his kidney failure (around 32%of functioning) and also significant low level of potassium (3.2 mmol/L that caused weakness in muscle) and with kidney stone issue”, “[his] right lower limb and right foot were abusively sprained” and “[his] Peroneal Nerve into right lower limb level was injected with unknow substance infected with Hepatitis-B”; and

(d)    Mr Qui and Ms Pioquinto breached their duties.

73    As to the last of the pleaded assertions, it is necessary to set out the full allegation as to breach of fiduciary duty pleaded at FASOC [60] as follows:

60.    Each of [Ms Pioquinto and Mr Qui] has been in breach of his or its special position of trust, confidence and/or fiduciary duties.

PARTICULARS OF BREACHES OF SPECIAL POSITION OF TRUST, CONFIDENCE AND/OR FIDUCIARY DUTIES

(1)    The Applicant relies on the material facts pleaded above and the particulars of negligence (Personal Injury) claims filed on 02 November 2022 at NSW District Court (File No: 2022/00329827).

(2)    The Applicant alleges [Ms Anderson] breached those duties by:

(i)    [SLHD, Ms Anderson and/or Ms Pioquinto] sending correspondence or passing information to [SESLHD and/or Mr Qui] regarding the Applicant’s previous proceedings 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, which are results of a conspiracy to discontinue the Applicant PH.D Research Training in Biomedical Engineering at UTS.

PARTICULARS

A.    At all material of times,    around    in or between:

I.    1 October 2010 to 31 December 2014; or alternatively

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

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

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

V.    22 March 2021 to 24 March 2021; or alternatively

VI.    After 24 March 2021

the Applicant had sued and/or continue suing the University of Technology Sydney (UTS), Mirvac Real Estate (Mirvac’s Network), Sydney Local Health District (SLHD), Community Migrant Resources Centre – Parramatta (CMRC), Federal Member for Parramatta (Hon. Julie), 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.

B.    any material times, around or between 22 March 2021 and 24 March 2021, while the Applicant was admitted at [St] George Public Hospital, SLHD or Teresa in concert with UTS, Hon. Julie, Mirvac’s Network and/or others whose names are unknown to the Applicant induced, intimidated and/or coerced SESLHD’s employer, agent or consultant or [Mr Qui] to injuring or harming the Applicant as retribution.

C.    at any material times the Applicant was admitted at [St] George Public Hospital, around or on 23 March 2021 between early morning to early afternoon, but prior to the surgery, [Mr Qui] was a Junior Medical Officers in charge of treating the Applicant in the Department of Urology at St George Public Hospital-NSW. In five different occasions, the fifth Respondent asked the Applicant to confirm if is he a Biomedical Engineering Researcher from the UTS? In all five different occasions, the Applicant said: yes, I am.

(ii)    failing to warn or advise the Applicant about the possible consequences of sending the correspondence or passing the information to [SESLHD and/or Mr Qui], or receiving such information from the [SLHD, Ms Anderson and/or Ms Pioquinto], in terms of the potential harm or injury of the Applicant’s body as retributions, including the Applicant was diagnosed with his kidney failure (around 32% of functioning) and also significant low level of potassium (3.2 mmol/L that caused weakness in muscle) and with kidney stone issue. The Applicant’s right lower limb and right foot were abusively sprained. The Applicant’s Peroneal Nerve into right lower limb level was injected with unknow substance infected with Hepatitis-B.

3.5    Claimed breach of contract

74    The next section of the FASOC at [62]–[69] pleads an apparent cause of action for breach of contract against the SLHD and the SESLHD. The essence of this claim, as best can be discerned, is as follows:

(a)    the NSW Health Code of Conduct imposed on SLHD and/or SESLHD and their employees and contractors an obligation to take reasonable care towards patients and to provide a safe and supportive environment on their premises for patients and their family members;

(b)    further or in the alternative, SLHD and/or SESLHD represented that their medical practitioners were obliged to act with reasonable care when dealing with a patient;

(c)    without “such express contracts”, Mr Kitoko would not have presented to the Emergency Department at Canterbury Hospital or St George Public Hospital and would not have communicated his personal and confidential information to them in order to “transact business with them”;

(d)    in the premises, it would be “unconscionable for [SLHD and/or SESLHD] to resile from the assumption engendered by it that each of [Mr Kitoko’s] cares and treatments was a legally binding agreement and binding upon the Respondents”;

(e)    further in the premises “each of the Respondents is estopped from denying that the Applicant’s cares and treatments from Canterbury Public Hospital and also from St George Public Hospital are legally binding agreements in accordance with their terms”: and

(f)    in breach of “the contracts” with Mr Kitoko, SLHD and/or the SESLHD failed to take reasonable care.

75    In relation to the last assertion, the particulars at FASOC [68] repeat the essence of those set out in the FASOC at [27]. Mr Kitoko’s claim for damages in respect of these claims is pleaded at FASOC [69], as follows:

69.     By reason of the said breaches of the Applicant’s cares and treatments from Canterbury Public Hospital and also from St George Public Hospital, the Applicant has suffered loss and damage.

PARTICULARS OF LOSS AND DAMAGE

The Applicant is entitled of the award of damages for breach of contract to protect the Applicant's expectation of receiving the defendant's performance by 31 December 2014.

On the issue of damages for breach of contract, the general rule at common law is "that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed".

The Applicant is therefore entitled to have its damages assessed on the basis of its expectation of receiving the SLHD's and SESLHD’s care and treatment performance rendered futile by the UTS's repudiation; as a result of breach of contract due to breach of duties of care, and breach of fiduciary obligation, the Applicant is entitled to general damages for its pain, suffering, and loss of enjoyment of life.

76    Again, it will be apparent that an aspect of the claimed loss and damage relates to the alleged repudiatory conduct of an entity that is not a party to these proceedings, UTS.

3.6    Claim for damages

77    The final sections of the FASOC plead a claim for damages, aggravated and exemplary damages and set out “common questions”. Paragraphs 70 to 77 as to the claimed damages plead as follows:

70.     As a result of breach of fiduciary obligations by [Ms Pioquinto and Mr Qui], the Applicant is entitled to equitable remedy (as well as discretionary remedies under section 237 of the ACL to compensate the Applicant for loss or damage sustained.

71.    As a result of breach of contract due to breach of duties of care, and breach of fiduciary obligation, the Applicant is entitled to general damages for its pain, suffering, and loss of enjoyment of life.

72.     The restoration or replacement of the Applicant’s health condition to the Applicant should be granted as relief to compensate the Applicant for equitable remedies in respect of the breach of the fiduciary duty the [Ms Pioquinto and Mr Qui] owed to the Applicant.

73.     The Applicant has suffered damages for loss of income, loss of competitive position in the employment market and/or other economic loss in amounts yet to be determined, the particulars of which will be provided prior to trial.

74.     The Applicant has incurred out-of-pocket expenses. Particulars of its out-of-pocket expenses will be provided prior to trial.

75.     As a further result of the Respondent’s actions, the relationship of Applicant with his family was affected.

76.     The Applicant further state that the Respondent's reckless and wanton conduct demonstrated a reprehensible disregard for the health, safety and rights of the Applicant, of the SLHD’s patients, SESLHD’s Patients, and of the general public in NSW and also in Australia, thus warranting an award of punitive damages.

77.     The Applicant plead and rely upon the provision of the Australian Consumer Law 2010, the terms of Health Services Act 1997 No 154 [NSW] and the terms of NSW Health Code of Conduct.

78    As will be apparent from the above, these generic pleadings do not shed any light on the particular loss and damage that Mr Kitoko claims to have suffered.

4.    APPLICABLE PRINCIPLES

79    The principles applicable to the Court’s exercise of power to give summary judgment or to strike out a pleading were not in dispute. Nor was there any substantive dispute as to the principles applicable to a claimed abuse of process, issue estoppel and Anshun estoppel. I will briefly summarise these.

4.1    Summary judgment

80    Section 31A of the FCA Act empowers the Court to give summary judgment when satisfied that there is no reasonable prospect of successfully prosecuting the proceeding, or part of the proceeding, even if the Court does not conclude that the proceeding or part thereof is “hopeless” or “bound to fail”. Section 31A(2) and (3) relevantly provide as follows:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

81    As the plurality in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 (Hayne, Crennan, Kiefel and Bell JJ) stated at [53], s 31A departs radically from earlier tests, such as those considered in General Steel Industries v Cmr of Railways [1964] HCA 69; 112 CLR 125 (Barwick CJ). The effect of s 31A is to lower the bar that was fixed by previous authorities for obtaining summary judgment. It is not necessary to demonstrate that a claim is “hopeless” or “bound to fail” for it to have no reasonable prospects of success: Spencer at [17]–[26] (French CJ and Gummow J). The following principles emerge from the joint judgment of Hayne, Crennan, Kiefel and Bell JJ in Spencer at [58]–[60]:

(a)    no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content;

(b)    in many cases where a party has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A;

(c)    nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim; and

(d)    the Federal Court may exercise power under s 31A if, and only if, it is satisfied that there is “no reasonable prospect” of success.

82    A practical judgment is required to be made: Spencer at [25] (French CJ and Gummow J). The moving party bears the onus of persuading the court that an order should be made: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46] (Reeves J). The determination of a summary dismissal application does not require “a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial” and instead requires “a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial…”: Cassimatis at [46].

83    While there are no “hard and fast” rules the moving party is likely to succeed on its persuasive onus if it is able to demonstrate that the applicant’s success in the proceeding relies upon a question of fact that can be truly described as “fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials”: Cassimatis at [47]. Conversely, it is unlikely to succeed where there appears to be “a real question of fact to be determined between the parties” and this is “more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty”: Cassimatis at [47]. A real question of fact is also more likely to exist where the question(s) of fact concerned are complex.

84    As a general principle, the moving party on an application for summary dismissal is likely to succeed where the applicant’s success in the proceedings “relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial”: Cassimatis at [48]. The moving party would be unlikely to succeed if the applicant’s success in the proceedings relies upon “a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel”: Cassimatis at [48].

85    The Court has a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially: Cassimatis at [50].

4.2    Strike out

86    Rule 16.21 of the Rules provides that:

(1)     A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)     contains scandalous material; or

(b)     contains frivolous or vexatious material; or

(c)     is evasive or ambiguous; or

(d)     is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)     fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     is otherwise an abuse of the process of the Court.

87    It is to be borne in mind that there is a distinction between an application for summary dismissal, which is directed to the underlying prospects of success of the proceedings, whereas a strike out application is directed to the sufficiency of the pleadings or equivalent documentation: Abela v Minister for Home Affairs [2021] FCA 96 at [8] (Abraham J) (citing Spencer at [23] (French CJ and Gummow J)). Where the evidence shows that a person may have a reasonable cause of action or a reasonable prospect of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21 of the Rules but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: Abela at [9] (citing Spencer at [23]).

88    Rule 16.21 needs to be considered in the light of r 16.02, which provides, amongst other things, that a pleading must identify the issues that the party wants the Court to resolve, state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against it at trial (but not the evidence by which the material facts are to be proved) and must not fail to disclose, relevantly, a reasonable cause of action appropriate to the nature of the pleading or otherwise be an abuse of process of the Court. An applicant must plead the “material facts necessary for the purpose of formulating a complete cause of action, and … it is not sufficient simply to plead a conclusion drawn from unstated facts”: McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 at [23] (Weinberg J). The material facts must be pleaded with a sufficient degree of specificity to convey to the other party the case which that party has to meet and a bare conclusion is ordinarily not a proper allegation: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1994] FCA 636; 217 ALR 226 at 235 (Beaumont J).

89    Further, as Perry J said in Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 at [19]:

(5)     A party who pleads a condition of mind, including knowledge, must state in the pleading particulars of the facts on which the party relies: FCR r 16.43(1) and (3). Equally, if a party pleads that another party ought to have known something, particulars of the facts and circumstances on the basis of which it is said that that other party ought to have acquired the knowledge must be pleaded: FCR r 16.43(2). For example, it might be pleaded that a party knew or ought to have known a given fact because it received a particular communication: Young Investment Group at 540 [10].

(6)     Furthermore, in line with the seriousness of such an allegation, a party who pleads (relevantly) misrepresentation must state in the pleading particulars of the facts on which the party relies: FCR r 16.42. As Foster J held in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3 with respect to a statement of claim alleging misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) (the predecessor provision to s 18 of the ACL):

In this connection it is important to remember that, as Fox J said in Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; 35 ALR 79 at 86:

Section 52(1) is a comprehensive provision of wide impact, which does not adopt the language of any common law cause of action. It does not purport to create liability at all; rather does it establish a norm of conduct, failure to observe which has consequences provided for elsewhere in the same statute, or under the general law.

It necessarily follows that when the section is sought to be used in litigation as the foundation of a cause of action or claim for some specific form of relief, it is imperative that the factual basis upon which the section is alleged to be brought into play must be stated with appropriate clarity in a statement of claim. This is, of course, a fundamental principle of pleading.

90    If a Court determines that a pleading should be struck out on one of the grounds articulated in r 16.21 of the Rules, a party may apply to the Court for leave to amend its pleading where such leave is required (that is, where r 16.51 does not apply): r 16.53(1)–(2). The principles that apply to an exercise of discretion to grant leave to amend a pleading pursuant to r 16.53 were set out, albeit in relation to the precursor in the (now repealed) Federal Court Rules 1979 (Cth), in Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 36 (Lindgren J; Lockhart and Tamberlin JJ agreeing) and Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; 176 FCR 66 at [22] (Kenny J). Generally, either in the case of an amendment to an originating process or a pleading, leave will be refused where the amendment would be obviously futile because it would not disclose any reasonable cause of action, seeks to raise a case that is misconceived in point of law, is embarrassing, or is otherwise liable to be struck out: Research in Motion at [22]–[23]; Allstate Life Insurance at 36; SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [48] (Gleeson J); Saffari v Latitude Financial Services Australia Holdings Pty Ltd [2024] FCA 573 at [18] (Perry J). The Court must exercise its discretion to grant leave to amend in accordance with the overarching purpose in s 37M of the FCA Act: see Latitude Financial at [17] and the cases there cited.

4.3    Abuse of process

91    As has been observed by Wigney J, the “concept of abuse of process is flexible and insusceptible of a formulation which comprises closed categories”: Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [112]. It is a concept that overlaps with but extends beyond estoppel. In this regard, in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507, French CJ, Bell, Gageler and Keane JJ stated at [24]–[26]:

… The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.

92    As is evident from the above, the rationale underpinning the concept of abuse of process is that there should be finality in litigation and that “a party should not be twice vexed in the same matter”: UBS AG v Tyne at [66] (Gageler J (as his Honour then was)).

93    In Fortescue Metals Group v Warrie [2019] FCAFC 177; 273 FCR 350, White J stated at [561] that “it is an abuse of process for a litigant to seek to re-litigate an issue decided adversely to it in earlier proceedings”. Whether or not the re-litigation of an issue rises to the level of abuse of process is fact dependent. As Robertson and Griffiths JJ stated in Fortescue Metals Group at [376], whether there has been an abuse of process:

… requires a consideration of all the circumstances when viewed against two primary concepts, being the principle of finality of judicial determination and the second being public confidence in the administration of justice. Regard may need also to be given to oppression and unfairness to the other parties in the litigation. Ultimately, the Court must assess and evaluate whether the relevant conduct which is said to constitute an abuse of process brings the administration of justice into disrepute in the eyes of “right-thinking people”, which is largely an evaluative exercise.

94    In Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699, French J (as his Honour then was) considered the list of non-exhaustive factors relevant to the determination of whether re-litigation amounts to an abuse of process including those considered in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aus Torts Reports 81-423 (at 64, 089). There, Giles CJ in Commercial Division (as his Honour then was) stated:

It is apparent from this brief review of the decisions that whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of - (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

95    However, in Spalla at [70]–[71], French J stated that the power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised “sparingly and upon an examination of the relevant circumstances of the particular case before the Court” and the Stenhouse factors are non-exhaustive guide and an indication of the nature of the Court’s task in such cases. In Kitoko, Griffiths J observed that whilst these factors provide a “useful framework” for the exercise of the court’s discretion, “the lodestar for a court’s assessment of what constitutes an abuse of process and the appropriate remedy that should follow is the proper administration of justice, informed by the need to avoid injustice and unfairness”: citing Fortescue Metals Group at [380] (Robertson and Griffiths JJ) and Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393–4 (Mason CJ, Deane and Dawson JJ).

4.4    Issue and Anshun Estoppel

96    In Tomlinson, French CJ, Bell, Gageler and Keane JJ addressed the various forms of estoppel that may arise from the rendering of a final judgment in earlier proceedings. Their Honours stated at [20]–[22]:

An exercise of judicial power, it has been held, involves “as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons”. The rendering of a final judgment in that way “quells” the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they “merge” in that final judgment. That merger has long been treated in Australia as equating to “res judicata” in the strict sense.

Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

97    As Griffiths J explained, for an issue estoppel to arise in a particular case, it is necessary to demonstrate that:

(1)    the same question has been decided;

(2)     the judicial decision which is said to create the estoppel was final; and

(3)    the parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies (Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [21]).

98    The primary elements of Anshun estoppel were identified by the plurality (Gibbs CJ, Mason and Aickin JJ) in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602–3:

… we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

99    Unlike issue estoppel, Anshun estoppel does not require a mutuality of parties between the two proceedings: Robinson v Deep Investments Pty Ltd [2018] FCAFC 232; 364 ALR 305 at [138] (Jagot and Colvin JJ).

100    As Griffiths J further observed, it should also be noted that the fact the applicant is a self-represented litigant “of itself…does not mean that special circumstances apply such that Anshun estoppel ought not operate”: citing Sahin v National Australia Bank Ltd [2012] VSCA 317 at [98] (Ferguson AJA), as cited in Tutos v State of Victoria [2019] VSC 673 at [34] (Moore J).

5.    EVIDENCE AND SUBMISSIONS

101    The parties relied upon the materials contained in a court book dated 4 April 2024 (Exhibit 1), a supplementary court book dated 4 April 2025 (Exhibit 2), and a further supplementary court book dated 4 April 2025 (Exhibit 3), each of which was received in both these proceedings (NSD 1595 of 2024) and the related proceedings (NSD 1043 of 2024) that I heard at the same time. These materials set out the history of the previous proceedings that Mr Kitoko has instituted against various parties, including the respondents. The materials contained in the court book also contain all of the medical and hospital records that were in evidence before Fagan J.

102    As I have noted in my separate reasons in Kitoko v University of Technology Sydney (No 3) [2025] FCA 915, in giving careful consideration to the written and oral submissions that Mr Kitoko has advanced, I have been mindful of the Court’s duty to ensure a fair hearing and that Mr Kitoko not be disadvantaged from the fact that he has exercised a right to be self-represented: see Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51]–[57] (Markovic, Derrington and Anastassiou JJ); SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J; Allsop CJ and Mortimer J (as her Honour then was) agreeing); Hamod v New South Wales [2011] NSWCA 375 at [311]–[316] (Beazley JA; Giles and Whealy JJA agreeing).

103    By way of summary, Mr Kitoko submitted that no “issue estoppel” arises in the present case because the causes of action now advanced have not been previously determined. He further contended that there was “no conclusive or no final determination on the merits made by Fagan J” in that his Honour determined interlocutory applications for summary dismissal and summary judgment. Mr Kitoko contended that Anshun estoppel is inapplicable because there is no relevant connection between the SC Proceedings or relevant unreasonableness in that he has pleaded different causes of action in the present proceedings. He further submitted that he had, in fact, attempted to amend his pleadings in the SC Proceedings to advance these separate causes of action but Fagan J refused him leave to do so. As to abuse of process, Mr Kitoko contended, by reference to the factors specified in Stenhouse, that there has been no final determination of the causes of action that he sought to advance in the present proceedings and that this Court has its own power to determine those causes of action. In advancing each of these submissions, Mr Kitoko accepted that the claims made in the present proceedings relied upon the same “factual matrix” but contended that this did not give rise to a relevant estoppel or abuse of process. For example, he submitted that:

5.    In the present case, [Mr Kitoko] negates any inference that the present claims for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract in this SLHD proceedings in this Honourable Federal Court is an issue estoppel[] because neither of these respondent contentions overcomes the facts that, even if the "factual matrix" in [Mr Kitoko’s] current claims for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract to be determined in the SLHD proceedings in this Honourable Federal Court are closely connected (or the same) to matters alleged from [Mr Kitoko’s] claims for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract in the SLHD Proceedings in the NSW Supreme Court, these claims were filed in the Supreme Court but did not proceed due to Justice Fagan's refusal to grant leave to amend…

…

13.    In this instance, the factual matrix in the Negligence claim in the SLHD proceedings might be substantially similar to that which was asserted in [Mr Kitoko’s] claims for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract in the SLHD proceedings (or even if the proceedings were both derived from the same facts or the facts are substantially similar in both proceedings). While [Mr Kitoko] now put his claims or defences for misleading and deceptive conduct, unconscionable conduct, breach of fiduciary duty, and breach of contract in the SLHD proceedings within a different legal framework when compared with [Mr Kitoko’s] claim for Negligence in the SLHD proceedings in the NW Supreme Court, the underlying factual matrix about how [SLHD, Ms Anderson, Ms Pioquinto, SESLHD, and Mr Qui] operated is not the same…

…

104    The respondents disputed Mr Kitoko’s contentions. In supplementary submissions, the respondents accepted that the preponderance of authorities established that an order for summary dismissal or summary judgment is interlocutory, but submitted that the authorities indicated that res judicata or issue estoppel may arise from interlocutory decisions: citing, amongst other authorities, Quach v Daly [2024] QCA 221 (Mullins P, Boddice JA and Crow J); Attorney-General v Kowalski [2015] SASC 123 (Blue J); cf Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; 137 SASR 117 (Doyle J). The respondents further indicated that they had not been able to identify any authorities that have relevantly considered whether Anshun estoppel can arise from summary dismissal or summary judgment from earlier proceedings beyond what was said by Blue J in Kowalski at [178]–[186]. Despite these limitations, the respondents submitted that Fagan J’s determination should be regarded as having been a final determination “on the merits” or otherwise giving rise to an abuse of process.

105    Alternatively, the respondents submitted that even if Fagan J’s determination of the SC Proceedings was not to be regarded as final and on the merits, or did not extend to all of the claims that Mr Kitoko now seeks to advance, the Court should nevertheless conclude that the claims pleaded in the FASOC have “no reasonable prospects of success and should not be permitted to continue”. Further, and also alternatively, or additionally, the respondents submitted that the FASOC should be struck out without leave to re-plead on the basis that the pleadings disclose no reasonable cause of action and are embarrassing.

106    In further supplementary submissions in chief and reply, Mr Kitoko acknowledged that the majority decision in UBS AG v Tyne supported the proposition that an abuse of process may be established “even in the absence of a prior final judgment on the merits” but “does not establish a blanket bar”. However, Mr Kitoko submitted that the decision was distinguishable because, unlike the facts in UBS AG v Tyne, he had not voluntarily discontinued his claims in the SC Proceedings, he was not recommencing substantially the same claims as Fagan J had refused leave for him to bring those claims in the SC Proceedings, there was an absence on his part of any litigation strategy seeking to obtain a tactical or procedural advantage, and he was advancing “novel and independent statutory and equitable causes of action” that have not been previously pleaded or determined.

107    In response to the respondents’ more general contentions as to summary dismissal or strike out, Mr Kitoko submitted that he had tendered several unchallenged medical reports and opinions. In addition, Mr Kitoko submitted that the matter was one that should proceed to trial as he wished to adduce further evidence as follows:

(a)    expert reports from two doctors seeking to establish that the injury to his right leg was caused by a “battery committed in St George Hospital” and not an “intermittent low back pain” that he has had “for 10 years due to nerve compression”;

(b)    “unspecific oral evidence from a lay witness or an eyewitness, who was present during the kidney stone surgery procedure inside the operating theatre at St George Public Hospital on the late afternoon of 23 March 2021 and who could substantiate or support the plaintiff’s claim that “the plaintiff was physically and sexually assaulted by Dr David and/or SESLHD’s staffs, and his peroneal nerve had been injected with unknown substance while he was under anaesthetic exceeded his consent, for the very reason that he was unconscious, as alleged in the statement of claim”;

(c)    “unspecific oral evidence from a lay witness who could substantiate or support the plaintiff’s claim concerning alleged failure to treat and advise the plaintiff with respect to kidney failure and low potassium levels at Canterbury Hospital on 21 March 2021 and support the plaintiff’s claim concerning alleged injection with hepatitis B virus during the urological procedure at Canterbury Hospital on 21 March 2021”; and

(d)    “the affidavit evidence of a witness or an eyewitness, who was present during the procedure at St George Public Hospital and who could substantiate or support the plaintiff’s claim that “several Neuro-Physio tests” linked to the movements of muscle in the face, hands and feet were performed on him by Dr David [Qui] on the afternoon of 24 March 2021, as alleged in the statement of claim.

108    Mr Kitoko further submitted that the respondents had not tendered any expert evidence other than hospital discharge records, had not indicated that they proposed to tender such evidence, and had not challenged the medical reports he had put into evidence. Mr Kitoko also submitted that the respondents had admitted at the hearing before me that they did not hold any CCTV footage that had been sought by him and that there had been a destruction or “spoliation” of evidence in respect of which the respondents’ legal representatives were a party to a conspiracy. Mr Kitoko submitted as follows:

Relevantly, at the hearing dated 08 April 2025, the defendants also confirmed that they did not hold any CCTV as sought by the plaintiff. The Plaintiff opposes these Defendants submissions and/or evidence. The Plaintiff submits that, like Canterbury Hospital, St George Public Hospital is run by policy in relation to CCTV (the SESLHD Policy Compliance Procedure in relation to Security: Circuit Closed Television (CCTV)), as imposed by the NSW Health Department. The Plaintiff noted that nowhere in the SESLHD’s policy or SLHD’s policy, it is mentioned that there are no CCTV placed in Hospital theatre and in Hospital wards. What emerges from the above is that the Plaintiff accuses the Defendants and the Defendants’ legal team (the solicitor, Mr. Andrew Bridges-Webb, and also the Barrister, Perla) who are acting for each of the Defendants in these proceedings at this Honourable NSW Supreme Court of a conspiracy with the NSW Police Officer in charge of the Plaintiff’s criminal proceedings, Detective Brigitte Monro, in respect to the destruction of Doctors’ records and/or CCTV footage related to physical and sexual abuses of the Plaintiff by the Defendants as it is done with intent to pervert or defeat the course of justice. A word about what the Americans call “spoliation”. Spoliation is the destruction of evidence by a person, and would include the destruction of Doctors’ records and CCTV footage related to physical and sexual abuses of the Plaintiff by the Defendants.

109    Mr Kitoko argued that in circumstances where the respondents have not sought particulars of his claim and have presented no evidence to rebut those claims (by filing a defence or otherwise), the Court should not summarily dismiss the proceedings. Rather, Mr Kitoko contended that the “proper approach”, which was said to be consistent with authority, is that “even ‘ambivalent’ evidence can support a cause of action at this interlocutory stage”: relying on Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 (Rares J); Currie v Meredith [2020] QDC 19 (Barlow DcJ). Accordingly, Mr Kitoko submitted that the Court should instead find that the relevant claims have reasonable prospects and give rise to triable issues of fact and law.

110    The respondents disputed these contentions.

6.    CONSIDERATION

111    I am satisfied the proceedings should be summarily dismissed. Before addressing my reasons for coming to this conclusion in respect of each of the pleaded claims, it is necessary for me to explain my views about the application of the principles of issue and Anshun estoppel and abuse of process in the context of the circumstances that presently prevail.

6.1    Application of the principles of issue estoppel, Anshun estoppel and abuse of process

112    As French J stated in Spalla at [59], “The Federal Court, like every Court of Justice, has an implied incidental power to prevent abuse of its processes”. One form of such an abuse of process is the re-litigation of controversies which have already been decided. As his Honour further observed, the Court “may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings as enunciated in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589”.

113    Invariably, the doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process have at their core the public interest in the finality of litigation and the consequence that it would be unfair and oppressive for a party to be vexed again by matters of fact and law that have been previously determined (or ought to have been previously raised for determination). However, as I will return to, the public policy considerations extend beyond these matters to also encompass considerations as to the timely and efficient use of judicial resources and the interests of other litigants.

114    In the present case, the determination made by Fagan J to dismiss Mr Kitoko’s application for summary judgment and uphold the respondents’ application for summary dismissal was interlocutory. That Fagan J’s determination was interlocutory is reinforced by the reasons of the decision of the Court of Appeal in refusing to grant leave to appeal to Mr Kitoko (see, eg, at [32]). However, the mere fact that Fagan J’s determination was interlocutory in nature does not necessarily stand in the way of the operation of an issue or Anshun estoppel. As the Court of Appeal of Queensland (Mullins P, Boddice JA and Crow J) stated in Quach at [2], the proposition that res judicata or issue estoppel “cannot apply to interlocutory proceedings is, as a matter of law, incorrect”: citing Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219 at [50]–[58] (Holmes JA with whom Wilson J agreed). In Makhoul v Barnes (1995) 60 FCR 572, the Full Court (Hill, Cooper and Branson JJ) stated at 583:

It has been suggested that an issue determined in interlocutory proceedings will not give rise to an issue estoppel: Whitemark Pty Ltd v Cann Australia Pty Ltd (French J, unreported, 31 March 1993 at 6). We think this proposition to be too broadly expressed. There is authority that, in certain circumstances where an issue is finally determined in what are interlocutory proceedings, an issue estoppel may arise: Carl Zeiss Stiftung v Raynor and Keeler Ltd (No.3) [1970] Ch 506 at 538-539; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 (CA) at 42-43. These cases suggest that the correct approach is to consider whether in the circumstances it is reasonable to regard the earlier decision as a final determination of the issue which one of the parties wishes to raise again: Joseph Lynch Land Co Ltd at 43, rather than to restrict consideration to the nature of the proceedings.

(Emphasis added.)

115    As their Honours stated in the final sentence, it will be relevant to have regard to the circumstances of the earlier determination. That observation accords with the oft-cited Stenhouse factors which call for a close of examination of matters of relevant context and circumstances.

116    A more vexed issue in the present case is whether, irrespective of the interlocutory nature of the applications before his Honour, Fagan J’s decision and orders may be characterised as being a determination “on the merits” for the purpose of the application of the principles of issue or Anshun estoppel.

117    It is a necessary element of res judicata that there be an earlier final determination on the merits, but the doctrine may also extend to an earlier determination brought about by the consent of the parties: see Hoysted v Federal Cmr of Taxation [1926] AC 155; (1925) 37 CLR 290 (Lords Shaw, Summer, Phillimore, Darling and Salvesen); Kinch v Walcott [1929] AC 482 (Viscount Sumner, Lords Carson and Blanesburgh); Chamberlain v Deputy Cmr of Taxation [1988] HCA 21; 164 CLR 502 at 508 (Deane, Toohey and Gaudron JJ); Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; 265 FCR 290 at 296 [25], [27] (Allsop CJ, Moshinsky and Colvin JJ). That is because “judgments, orders and awards [made] by consent are as efficacious as those pronounced after a contest in creating cause of action estoppels and merging the causes of action sued on”: Millsom v North Melbourne College Aus Pty Ltd [2023] FCA 677 at [34] (Hespe J) citing Bower GS, Turner AK and Handley KR, The Doctrine of Res Judicata (3rd ed, Butterworths, 1996) at p 21 [38].

118    In a similar vein, an issue estoppel ordinarily operates where there has been a final determination of the relevant issue on the merits; the issue is taken not to have been “necessarily resolved” unless there has been a decision on the merits: Zetta Jet at [20]. A decision “on the merits” in this sense is one that has been “judicially assessed or evaluated by a determination that involves finding the facts and applying the law to those facts to reach a conclusion” so as to give rise to an issue estoppel: Zetta Jet at [20] citing Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [25] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). (It has been observed that the principle may also extend to instances where there has been a consent judgment: see, generally, Robinson v Deep Investments Pty Ltd [2018] FCAFC 232 at [137] (Perram, Jagot and Colvin JJ)).

119    Whether the operation of the doctrine of Anshun estoppel is also limited to instances where there has been a final determination on the merits is less clear, but it has been observed that it “will always be more difficult for a respondent to satisfy” the criterion of unreasonableness when “the initial litigation was determined summarily and did not proceed through the usual processes to trial”: see Kowalski at [183] (Blue J).

120    In the present case, it may be accepted that Fagan J’s determination was not a judicial adjudication following a contested trial. Instead, it involved the determination of interlocutory applications where his Honour took Mr Kitoko’s pleaded case at its highest and otherwise relied upon the material adduced by each party in support of their respective applications. There is room for debate as to the circumstances in which the determination of an application for summary dismissal or summary judgment involves a judicial adjudication on the merits. In some instances, a contested application for summary judgment, which is dispositive of an issue of law or proceeds on the receipt of extensive evidence may have the character of a determination on the merits, and an application for summary dismissal may also bear that character where it too involves a determination of particular issues of law or fact. In this respect, it is notable that in the applications before Fagan J, the parties adduced an extensive body of evidence including uncontested hospital records (to which I will return). To characterise Fagan J’s determination as one that was not, strictly, a final determination on the merits may be to downplay the context within which his Honour made the findings that he did. However, it is not necessary to decide the present application on this basis. That is because, putting to one side the application of the principles of issue and Anshun estoppel, the broader and more flexible principle of abuse of process is not confined to instances where there has been a prior final determination on the merits.

121    In the context of attempted re-litigation, in Johnson v Gore Wood & Co [2002] 2 AC 1, Lord Bingham said (at 31) that what is called for (where it is asserted that a claim or defence should have been raised in earlier proceedings) is:

…a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.

See also Rogers v R [1994] HCA 42; 181 CLR 251 at 286–7 (McHugh J); Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392–3 (Mason CJ, Deane and Dawson JJ).

122    That an abuse of process is not limited to instances where there has been a prior determination on the merits was made clear in the judgment of the majority in UBS AG v Tyne (Kiefel CJ, Bell and Keane JJ; Gageler J concurring; Nettle, Gordon and Edelman JJ dissenting). There, the respondent in the High Court, Mr Tyne (in his capacity as trustee of a trust) commenced proceedings in the Federal Court against the appellant, UBS, claiming damages and equitable compensation arising out of advice and representations made by UBS to the trustee and, through him, to related entities, namely the former trustee, referred to as “ACN 074”, and an investment company known as “Telesto”. Mr Tyne was the controlling mind of these entities. The claimed loss arose in connection with the certain credit facilities extended to Telesto by UBS. UBS had earlier brought proceedings in the High Court of Singapore against Telesto, as principal debtor, and Mr Tyne, as guarantor, for default on the credit facilities but ACN 074 was not a party to those proceedings. Before the proceedings in Singapore were concluded, Mr Tyne, in his personal capacity, Telesto and ACN 074 commenced proceedings in the Supreme Court of New South Wales. UBS applied for a permanent stay of these later proceedings and was granted a temporary stay. Mr Tyne and ACN 074 then discontinued their claims in the Supreme Court. The Singapore proceedings were subsequently finalised in favour of UBS. Mr Tyne, in his capacity as the trustee of the trust, then commenced proceedings in the Federal Court almost two years later. The claims made in the Federal Court arose out of essentially the same facts, and were essentially the same as the claims made in the Supreme Court. UBS applied for a permanent stay of the proceedings in the Federal Court on grounds including that they were an abuse of process. Keifel CJ, Bell and Keane JJ held that the fact that Mr Tyne’s claims had been discontinued and had not been heard or determined on the merits did not stand in the way of an abuse of process being found, stating at [44] that:

The circumstance that the Trust’s claim has not been heard on its merits, and that a fair trial may still be had, cannot be determinative of whether the proceeding is unjustifiably oppressive to UBS or whether its continuance would bring the administration of justice into disrepute.

123    In arriving at this conclusion, their Honours placed emphasis on the public interest in the administration of justice as informed by the dictates of case management contained in s 37M of the FCA Act, which are to be viewed together with the private interests of parties. Their Honours stated at [38] that:

The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the FCA. As the joint reasons in Aon explain, the “just resolution” of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the FCA. Integral to a “just resolution” is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed “right” of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate. The respondent’s argument in Aon, that the proposed amendment to raise the fresh claim was a necessary amendment to avoid multiple actions, did not avail. As their Honours observe, if reasonable diligence would have led to the bringing of the claim in the existing proceedings, any further proceeding might be met by a stay on Anshun grounds.

(Footnotes and citations omitted.)

124    Their Honours also pointed out at [40] that Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 was a decision where a permanent stay was ordered on the grounds of an abuse of process notwithstanding that the plaintiff was not at fault and that the merits of the claim had not been decided. Their Honours further reasoned at [45]–[46] that:

The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court’s decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation. To insist, for example, on “inexcusable delay” as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.

Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process. The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process.

(Emphasis added.)

125    In separate reasons, Gageler J, referring to Lord Bingham’s statement in Johnson, stated at [70] that the reference to:

…the need for the requisite normative judgment to take account of “the public and private interests involved” underscores that the question of whether the claim sought to be brought in the later proceedings “should” have been brought in the earlier proceedings cannot be determined solely by reference to interests of the parties to the action. There is a public interest in the timely and efficient administration of civil justice. The importance of that public interest has only increased in the years since Lord Bingham spoke.

126    Albeit the majority of the High Court in UBS AG v Tyne were concerned about the pursuit of multiple proceedings orchestrated by Mr Tyne, through the forensic device of separate entities, the point of principle raised is one that reinforces that abuse of process is a doctrine of flexible operation and one which is not applicable only where there has been an earlier determination on the merits. In making such an assessment, and acknowledging that the discretion to order the dismissal of proceedings on the grounds of an abuse of process is to be sparingly exercised, it is nevertheless necessary to have regard to the broader public interest in the administration of justice. The latter point was also reinforced by Gordon J (albeit in dissent in the result) at [125]–[126]:

This appeal raises important issues about the way in which litigation is conducted in the 21st century. Over the last twenty years, there has been a ‘culture shift’ in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil disputes. Cost and delay are long standing challenges. The courts and the wider legal profession have an obligation to face and meet these and other challenges. Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long term risks to the development, if not the maintenance, of the rule of law.

The power to grant a stay of proceedings exists to enable a court to ‘protect itself from abuse of its process thereby safeguarding the administration of justice’. The doctrine of abuse of process is not limited to defined and closed categories of conduct. It is capable of being applied to ‘any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute’. If a proceeding would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party, the proceeding should be stayed or dismissed. Or, put another way, where ‘the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness’, a proceeding should be stayed or dismissed.

(Footnotes and citations omitted.)

127    The “culture shift” to which her Honour referred is of considerable significance to processes of this Court and the overarching dictates of case management encapsulated in s 37M of the FCA Act. These dictates entail consideration of the Stenhouse factors but extend beyond them and appeal to, as Griffiths J aptly described it, the “lodestar” being the interests of the administration of justice: Kitoko v University of Technology Sydney [2021] FCA 360 at [75].

128    In the present case, there are a number of matters to be taken into account in assessing whether Mr Kitoko’s claims against the respondents give rise to an abuse of process irrespective of whether Fagan J’s determination of the SC Proceedings is to be characterised as having been a determination on the merits.

129    First, as a starting position, there is complete identity between the parties to the SC Proceedings and the present proceedings:

(a)    SLHD, who is the first respondent in the present proceedings, was the first defendant in the SC Proceedings;

(b)    Ms Anderson, who is the second respondent in the present proceedings, was the second defendant in the SC Proceedings;

(c)    Ms Pioquinto, who is the third respondent in the present proceedings, was the third defendant in the SC Proceedings;

(d)    SESLHD, who is the fourth respondent in the present proceedings, was the fourth defendant in the SC Proceedings; and

(e)    Mr Qui, who is the fifth respondent in the present proceedings, was the fifth defendant in the SC Proceedings.

130    Second, whilst I accept (as further addressed below) that Mr Kitoko has pleaded some causes of action in the FASOC which were not advanced in the SC Proceedings, in other respects the claims advanced in both proceedings are nearly identical or at least similar to those that were pleaded in the SC ASOC. This requires explanation.

131    Both the SC Proceedings and the present proceedings:

(a)    have as their central focus the events relating to Mr Kitoko’s attendance at Canterbury Hospital on 21 March 2021 and subsequently at St George Hospital on 22–24, 28, 30–31 March 2021 and 19 April 2021 (although Mr Kitoko’s allegations in relation to his treatment at St George Hospital are primarily based on the events occurring between 22 to 24 March rather than the circumstances of his attendance on the dates thereafter). Specifically, both proceedings have as their focus the advice and treatment that Mr Kitoko was provided at those hospitals, or the absence of it;

(b)    plead a conspiracy as between each of the defendants, together with others, as a way to injure and harm Mr Kitoko including by way of inducing, intimidating and coercing SLHD to place Mr Kitoko on a blacklist or to refuse to admit and treat Mr Kitoko: see FASOC at [5]–[6] and SC ASOC at [5]–[6];

(c)    plead a further related conspiracy that SESLHD and its employees, contractors or consultants conspired with others to “discipline” Mr Kitoko: FASOC at [8] and SC ASOC at [8];

(d)    plead and particularise that in circumstances where Mr Kitoko was suffering from severe abdominal right flank pain, was diagnosed with kidney failure and low levels of potassium that caused weakness in his muscle, he should not have been discharged from Canterbury Hospital, or should not have been discharged without further information being provided to him;

(e)    plead and particularise that in circumstances where Mr Kitoko presented to the Emergency Department at St George Hospital with the same conditions, he was physically and sexually assaulted in that whilst he was asleep and completely unconscious under general anaesthesia, procedures were performed on him including:

(i)    “rigid Cystoscopy at 30-degree”, “right Ureteroscopy” and the “insertion of right ureteric stent”; and

(ii)    the injection of an unknown substance into his peroneal nerve with a substance that was infected with Hepatitis B;

(f)    plead and particularise that on subsequent days when Mr Kitoko was treated at St George Hospital:

(i)    there were several Neuro-Physio Tests that were performed without them being explained to him; and

(ii)    he was discharged despite his pain persisting and worsening;

(g)    plead and particularise that one or more of these acts was a form of retribution in furtherance of the pleaded conspiracies;

(h)    plead and particularise that SLHD, SESLHD and their employees, agents or consultants owed Mr Kitoko a duty of care by reason of the operation of the NSW Health Code of Conduct and other statutory obligations;

(i)    plead and particularise that SLHD, SESLHD and their employees, agents or consultants engaged in deliberate acts including those set out above;

(j)    plead and particularise that SLHD, SESLHD and their employees, agents or consultants breached these duties of care by engaging in one or more of the acts referred to above without taking reasonable care including by failing to advise or warn Mr Kitoko or give him information of the relevant procedures and his conditions and in discharging him;

(k)    plead and particularise that SLHD, SESLHD and their employees, agents or consultants caused Mr Kitoko injury and harm that was done in furtherance of the conspiracies pleaded; and

(l)    plead and particularise that SLHD, SESLHD and their employees, agents or consultants, carried out acts which were done in furtherance of the conspiracy, thereby causing Mr Kitoko to suffer various injuries and loss.

132    Third, it is true that in the present proceedings Mr Kitoko has pleaded causes of action that were not pleaded in the SC Proceedings, as follows:

(a)    a claim that SLHD, Ms Anderson and Ms Pioquinto engaged in misleading and deceptive conduct including by way of misleading representations and misleading conduct by silence;

(b)    a claim that the respondents engaged in unconscionable conduct and additional unconscionable conduct;

(c)    a claim that Ms Anderson and Ms Pioquinto breached fiduciary duties; and

(d)    a claim that SLHD and SESLHD breached their contractual obligations.

133    However, in each respect, the “new” causes of action are based on the same factual substratum as the other claims, as I explain further below.

134    Fourth, whilst it may be accepted that Fagan J’s determination of the SC Proceeding was an interlocutory one and may be characterised as one that was not strictly a final determination “on the merits”, it is nevertheless relevant to take into account that:

(a)    in the hearing and determination of the applications before Fagan J, Mr Kitoko filed and served seven affidavits in support of his application for summary judgment and in opposition to the application for summary dismissal; and

(b)    the respondents put into evidence objective documentary materials, including hospital records, which were not disputed by Mr Kitoko. As I will return to below, many of these records falsified the factual premises upon which Mr Kitoko’s claims were based.

135    These matters are relevant because, as the Stenhouse factors indicate, the “terms and finality” of the findings made by Fagan J are but one factor to be considered, as is the “opportunity available and taken” to fully litigate the issue. Those factors are to be viewed in light of the fact that, although there was not a final contested trial, Mr Kitoko had ample opportunity to adduce evidence of the claimed conspiracies in support of his claim for summary judgment and did not dispute the medical records that were tendered by the respondents.

136    Fifth, Mr Kitoko exhausted all of his rights of appeal from the orders and reasons of Fagan J. In doing so, the respondents were put to the cost and expense of those processes of appeal, only to now be vexed again by the bringing of claims arising from the same factual substratum including claims that are identical to those advanced in the SC Proceedings.

137    Finally, it is also relevant that, following the refusal of special leave by the High Court, Mr Kitoko has done little more than re-plead (in most instances, in identical terms) aspects of the conspiracy and negligence claims which were unfavourably decided against him without attending to any of the deficiencies in those claims identified by Fagan J and, in other respects, has relied upon essentially the same factual substratum to advance new claims. In other words, nothing new has been put before me to indicate that Mr Kitoko has addressed the fatal flaws in his conspiracy and negligence claims as identified by Fagan J.

138    I have stated these factors at a level of generality without examining each of the claims that Mr Kitoko now advances. It is ultimately necessary in the present case to consider the question of abuse of process by reference to each of the these causes of action.

6.2    The conspiracy claims

139    The conspiracy claims that Mr Kitoko now advances in the FASOC (and which pervade across the other causes of action pleaded by him) are in substance the same ones that Fagan J determined should be summarily dismissed. It may be accepted that the conspiracies that are now pleaded in the FASOC and those that were pleaded in the SC Proceedings are distinct to the conspiracies that Mr Kitoko had advanced in earlier and separate proceedings relating to the Broadway Incident and as against UTS: see SCJ at [56].

140    As Fagan J observed in the SCJ at [53], the elements of a conspiracy are as follows:

(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).

141    Neither Mr Kitoko nor the respondents contended that these principles were inapplicable to an assessment of the conspiracy claims that Mr Kitoko advances in the FASOC. I have proceeded on that basis.

142    As with the SC ASOC, the conspiracies pleaded in the FASOC are woefully inadequate in the articulation of material facts as to the necessary integers of a conspiracy at law. The pleadings in the FASOC at [5]–[6], [8], [10] and at [85]–[89] do not rise beyond bare assertion of alleged agreements to occasion some general “injury or harm”.

143    The conspiracies that Mr Kitoko variously pleads involve an alleged agreement as between one or more of the respondents and others including Ms Julie Owens, the former Federal member for Parramatta, Mirvac and/or associated entities, and/or UTS. The subject and object of the various conspiracies are pleaded to have been to “blacklist” Mr Kitoko from receiving treatment at hospitals operated by SLHD or the SESLHD and/or to cause him to be the subject of physical or sexual assaults such that he suffered injuries and loss.

144    As in the SC ASOC, there is here no clear pleading of material facts by way of the identification of the acts in furtherance of the alleged conspiracy, from which the alleged agreement and/or an intent to cause injury, including economic injury, might be inferred. There is no material fact (beyond bare assertion) pleaded as to 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, or of him being “disciplined” or subjected to injury and harm (including by way of physical or sexual assaults) in furtherance of the alleged conspiracies.

145    Further, and more critically, as Fagan J observed at SCJ [55], the evidence that was led by both Mr Kitoko and the defendants in the SC Proceedings falsified an essential premise of Mr Kitoko’s pleaded conspiracy that he was on some “blacklist” by which he was to be refused medical care. To the contrary, the preponderance of materials established that Mr Kitoko was in fact provided with medical care. That evidence is also before me. It establishes that, as a matter of fact, Mr Kitoko was admitted for care and treatment at Canterbury Hospital and later at St George Hospital. There is also evidence before me (as was before Fagan J) that Mr Kitoko and his treating GP were informed of the outcome of his admission into Canterbury Hospital and that later Mr Kitoko gave informed consent to the subsequent treatment that was provided at St George Hospital.

146    Even more critically, there is simply nothing in the materials that points in the direction (by way of inference or otherwise) of a conspiracy as between each of the respondents and Ms Owen, Mirvac, UTS or any of their officers. These are bald assertions and, in my view, fanciful. I am comfortably satisfied that the conspiracy claims advanced by Mr Kitoko in the FASOC have no reasonable prospects of success. They are hopeless and doomed to fail. My conclusions in this regard are significant to the balance of the causes of action that Mr Kitoko pleads because, as noted above and as further explained below, they pervade the balance of the claims advanced in the FASOC.

147    I am also satisfied that Mr Kitoko’s pursuit of the conspiracy claims in the present proceedings amounts to an abuse of process. As set out above, in coming to this conclusion, I have taken into account that:

(a)    there is complete identity between the defendants in the SC Proceedings and the respondents in the present proceedings;

(b)    the respondents have successfully resisted an application for leave to appeal to the Court of Appeal of New South Wales, and thereafter special leave was refused by the High Court;

(c)    the respondents have in substance availed themselves of a comprehensive victory in the dismissal of unmeritorious conspiracy claims made against them;

(d)    although there was not a final contested trial before Fagan J, Mr Kitoko had ample opportunity to articulate a properly pleaded case as to the claimed conspiracies and to adduce evidence of those claims in support of his application for summary judgment; and

(e)    Mr Kitoko has adduced no further material in the proceedings before me to support the claimed conspiracies and has not addressed the fatal flaws identified by Fagan J.

148    In these circumstances, I am satisfied that it would be oppressive and unfair to the respondents to be exposed again to the further litigation of claims which they have already successfully persuaded a superior court to summarily dismiss. To permit Mr Kitoko to propound the conspiracy claims would undermine public confidence in the administration of justice. I am satisfied that the interests of justice weigh in favour of dismissing the conspiracy claims as an abuse of process.

149    In light of the conclusions I have reached, it is unnecessary for me to decide whether an issue or Anshun estoppel also arises.

6.3    The claims in negligence

150    As with the conspiracy claims, the negligence claims that Mr Kitoko now advances in the FASOC are also in substance the same ones that Fagan J determined should be summarily dismissed.

151    It is instructive that in coming to this conclusion, Fagan J had regard to the uncontested evidence, including by way of medical records, which contradicted essential aspects of Mr Kitoko’s assertions that he had been injured or assaulted. In particular, it is significant that Fagan J made the following critical findings at SCJ [57]–[68]:

(a)    Mr Kitoko had not pleaded or provided any evidence of the injury or damage caused by the alleged failure to treat and advise him with respect to kidney failure and low potassium levels at Canterbury Hospital on 21 March 2021 (at SCJ [57]);

(b)    the undisputed records from Canterbury Hospital established that on discharge Mr Kitoko 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” (at SCJ [58]);

(c)    the records also established that Mr Kitoko’s subsequent diagnosis and treatment of his 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 (at SCJ [59);

(d)    Mr Kitoko’s claim that he was physically or sexually assaulted while under anaesthetic at St George Hospital on 23 March 2021 was unsupported and he was not in a position to give evidence that anything done while he was under anaesthetic exceeded the informed consent he had given to the procedures that were performed (at SCJ [61]);

(e)    Mr Kitoko’s claim that Mr Qui and/or employees, agents or consultants of SESLHD “abusively sprained [his] right lower limb and right foot” and “injected [his] peroneal nerve […] with unknown substance infected with Hepatitis-B” was unsupported by any evidence (at SCJ [63]). Further:

(i)    the uncontested hospital records affirmatively established that dysfunction in Mr Kitoko’s right lower limb, impairment of the peroneal nerve in that limb and the plaintiff’s Hepatitis B infection were causally unrelated to treatment in the hospital; and

(ii)    Mr Kitoko’s own evidence established that he supplied a blood sample on 22 March 2021 before his admission to the hospital that day that already recorded Hepatitis B surface antigen and core antibody were detected, indicating extant infection (at SCJ [66]); and

(f)    Mr Kitoko’s claim that “several Neuro-Physio tests” were performed on him on 24 March 2021, was not supported by any evidence from himself or any other witness (at SCJ [67]) and the allegations that he was discharged from St George Hospital without information as to his condition, particularly his low potassium level, was directly refuted by the undisputed hospital record (at SCJ [68]).

152    The same evidence that was before Fagan J is now before me. I have carefully considered it. I am satisfied that Mr Kitoko’s claims in negligence have no reasonable prospects of success and are doomed to fail.

153    As set out above (at [62]), one aspect of Mr Kitoko’s claims in negligence is that the negligent acts of the respondents caused him injury, loss and damage by reason of retributive acts in furtherance of the alleged conspiracies. For the reasons already stated above (at [142] and [144]), these claims are no more than bare assertions that are fanciful.

154    The other aspects of Mr Kitoko’s claims in negligence is that he suffered injury, loss or damage by reason of being discharged from Canterbury Hospital without adequate treatment, information or advice being given to him, and that he was subjected to physical and sexual assaults at St George Hospital. However, the evidence before me (as it was before Fagan J) is that records from Canterbury Hospital establish that on discharge Mr Kitoko and his GP were informed that his creatinine level should be examined, that there was blood detected in his urine, that further investigations (including potential renal imaging) may be required concerning the health of his kidneys if his creatinine level was different than usual, and that he was advised to return to the hospital in the event of fever, worsening pain or any other concerns. The fact is that when his pain persisted, Mr Kitoko presented to St George Hospital on the following day, where he was treated. Nothing in the FASOC or the evidence before me indicates what injury was occasioned to Mr Kitoko by reason of his discharge from Canterbury Hospital. As the Court of Appeal (Ward P and Gleeson JA) said in Kitoko v Sydney Local Health District [2024] NSWCA 49 at [87] in relation to this matter (albeit in the context of refusing to grant leave to appeal from Mr Kitoko’s application for summary judgment):

Mr Kitoko’s own evidence (for example in relation to the hospital records and discharge notes) clearly contradicts his claims that there was no treatment or no advice given as to his potassium levels. Mr Kitoko also misunderstands the need to establish causation and loss. Damage is of course the gist of an action in tort for negligence.

155    As to the procedures performed on Mr Kitoko at St George Hospital on 23 March 2021, and the treatment that he received at that Hospital, neither the FASOC nor any of the materials before me articulate the basis upon which Mr Kitoko claims that he was sexually or physically assaulted when under general anaesthetic and unconscious. Mr Kitoko’s pleaded case in this respect is no more than inferential from the fact that certain procedures were performed, but the critical point about these procedures is his claim that they led to him suffering an “abusive sprain” to his “right lower limb and right foot” and also involved having “Neuro-Physio” tests performed, and an injection in his peroneal nerve with an unknown substance such that he was infected with Hepatitis B. However, the uncontradicted hospital records establish that Mr Kitoko had already suffered from lower back pain for 10 years from a previous injury to his cervical and lumbar spine and the blood sample retrieved on 22 March 2021 already evidenced an extant infection of Hepatitis B. Furthermore, the medical opinion of Dr Robertson, which Mr Kitoko annexed to his affidavit filed on 7 August 2024 (August Affidavit) reveals that the suspected cause of the pain in Mr Kitoko’s right leg was a lesion in Mr Kitoko’s lumbar spine: Exhibit 1 at p 490–491. This is consistent with Mr Kitoko’s historical spinal injury noted in the hospital records and inconsistent with Mr Kitoko’s claim that Mr Qui and/or an employee, consultant or agent of SESLHD “abusively sprained” Mr Kitoko’s “right lower limb and right foot” during the procedure performed on 23 March 2021. The other assertions made by Mr Kitoko as to physical and sexual assaults were, and remain, no more than assertions that have not been properly pleaded or particularised (notwithstanding the serious deficiencies identified by Fagan J).

156    Mr Kitoko submitted that he had tendered several unchallenged medical reports that supported his claims including findings of Dr Hutchinson, Dr Varsha Kumari, Dr Barnabas Bako, Dr Alasdair Robertson and Dr Rajiv Wijesinghe, as well as the findings of a physiotherapist Mr Derryn Chiu. None of the documents are, in fact, medical or expert reports but appear to be extracts from emails or letters that Mr Kitoko has extracted and put into the body of his August Affidavit.

157    The so-called report of findings of Dr Hutchinson appears to be an email dated 14 April 2021 that Dr Hutchinson sent to Mr Kitoko’s treating doctor which Mr Kitoko has extracted and pasted into the body of his August Affidavit. Dr Hutchinson appears to have been the Director of Emergency Medicine and a Staff Specialist in Emergency Medicine at Catnterbury Hospital. Her email is entitled “Patient Feedback”. In that email, Dr Hutchinson notes that Mr Kitoko was seen in the Emergency Department at Canterbury Hospital when he presented with abdominal pain and then presented later at St George Hospital, at which time he was treated by way of a procedure to remove a kidney stone. Dr Hutchinson indicated that the doctors involved in providing care to Mr Kitoko at Canterbury Hospital recalled that he had been discharged at a time when his pain had settled and that is why they did not proceed with a “CT” but in retrospect it may have been “best to perform imaging” given his abnormal creatinine. Nothing in that email suggests or establishes that Mr Kitoko suffered any injury by being discharged and the evidence at its highest indicates no more than that a judgment was exercised by the relevant doctors in question. As addressed above, the apparent email from Dr Hutchinson does not establish what injury or loss Mr Kitoko suffered by reason of his discharge from Canterbury Hospital, especially in circumstances where he attended St George Hospital the very next day.

158    The so-called report of findings of Dr Kumari appears to be a reference to a discharge report authored by Dr Kumari on 31 March 2021, which, again, Mr Kitoko has extracted and pasted into the body of his August Affidavit. The apparent report states that Mr Kitoko had noted “pain bilaterally in his lower limbs” following the procedure to remove the kidney stone but the apparent report proceeds to state that “Mr Kitoko has a history of hypertension” and a “previous injury to his cervical and lumbar spine ten years prior resulting in disc herniation”. The apparent discharge report further indicates that following discussions with the Orthopaedic team there were “no sinister features in current clinical feature”, and that Mr Kitoko was “reassured” and told that symptoms may persist for several weeks. Nothing in this apparent “record” supports Mr Kitoko’s claims and points to the fact that (as noted above) Mr Kitoko was suffering from expected pain following a kidney stone being removed in circumstances where he had a clinical history of hypertension and injury to his cervical and lumbar spine.

159    Next, the so-called report and findings of Dr Bako appears to be a letter dated 8 April 2021 sent to Mr Kitoko’s treating doctor following an ultrasound being performed on his right ankle which, again, Mr Kitoko has extracted as plain text into the body of an affidavit. Relevantly, the apparent letter concludes that “Apart from minor thickening of the anterior talofibular ligament, no other abnormalities were seen.” Again, this apparent report does not support Mr Kitoko’s claims.

160    Next, the so-called report and findings of Dr Robertson appears to be a letter dated 12 June 2021 sent to Mr Kitoko’s treating doctor following an ultrasound being performed on his right ankle which, again, Mr Kitoko has extracted as plain text into the body of his August Affidavit. As noted above, the report of Dr Robertson indicated that the suspected cause of Mr Kitoko’s pain in his lower leg was the lesion on his lumbar spine. This too does not support Mr Kitoko's claims.

161    Next, the so-called report and findings of Dr Wijesinghe appears to be a report dated 30 August 2021 which, again, Mr Kitoko has extracted as plain text into the body of his August Affidavit. Mr Kitoko identifies Dr Wijesinghe as a “Consultant Neurologist”. The apparent report states no more than that there were “neurophysiological changes” that could be seen in the context of a “direct traumatic injury” to the muscle following a kidney stone removal, but does not establish whether such changes are expected responses to the procedure and falls well short of pointing to any negligence on the part of the respondents.

162    Next, the so-called report and findings of Mr Derryn Chin appears to be a letter dated 27 July 2021, which, again Mr Kitoko extracted as plain text into the body of his August Affidavit. It does little more than state that Mr Kitoko reported lateral ankle pain following the removal of the kidney stone. It does not suggest, let alone establish, negligence on the part of the respondents.

163    As will be evident from the above, the apparent documents upon which Mr Kitoko relies to prove his case are unambivalent and fall well short of establishing or explaining why or how the respondents’ conduct was negligent: cf Boston Commercial Services at [45] (Rares J). Recently, in Azad v Avant Insurance Limited (No 2) [2025] FCA 853, Colvin J stated at [5]:

Different procedures are adopted by individual courts as to what the applicant must do to commence (or plead) a case. The documents which must be provided have different names, but they have three things in common. First, the applicant must provide a clear and concise statement setting out the essential aspects of what is alleged to have happened that is relevant to the claim. Second, the applicant must specify why those events, if proven to have occurred, mean that there is a recognised basis for a legal claim (often referred to as a cause of action). Third, the applicant must specify the relief that is sought. Importantly, the relief must be of a kind that the law recognises as being available to a person who demonstrates the existence of the alleged cause of action. If the applicant says that the same underlying controversy gives rise to claims against more than one respondent, then each of the three requirements must be met for each respondent.

(Emphasis added.)

164    Nothing in the FASOC or the materials upon which Mr Kitoko relies demonstrate in clear terms why or how the respondents were negligent. Given all the circumstances, I am satisfied that Mr Kitoko’s claim has no reasonable prospects of success. As with the conspiracy claims, Mr Kitoko has known about the fundamental flaws in his case since at least the determination of the SC Proceedings and has done nothing to address them.

165    I am also satisfied that the respondents have established that the negligence claims give rise to an abuse of process. In arriving at this conclusion, I have again taken into the factors that I have set out above at [149] which apply equally to the negligence claims pleaded in the FASOC. Again, in light of the conclusions I have reached it is unnecessary for me to decide whether an issue or Anshun estoppel also arise.

6.4    The misleading and deceptive conduct claims

166    It is true that Mr Kitoko did not plead claims as to misleading and deceptive conduct in the SC Proceedings. It is also true that Mr Kitoko sought leave to amend the SC ASOC to plead these claims, but leave was refused by Fagan J. However, as mentioned above, the misleading and deceptive conduct claims proceed on the basis of the same factual substratum as the claims in conspiracy and negligence.

167    The substance of the misleading and deceptive conduct claims is that Ms Pioquinto, at the direction of Ms Anderson, made a representation to Mr Kitoko on or about 21 March 2021 (at or about the time of his discharge from Canterbury Hospital) that “after all tests carried on [sic], nothing wrong of concern could be found and [Ms Pioquinto] advised [Mr Kitoko] to go home and to return to the Canterbury Hospital only if fever, worsening, or any other concerns”: FASOC [39]. It was pleaded that this representation was untrue, inaccurate, or misleading because a medical report confirmed that Mr Kitoko was suffering from severe abdominal right flank pain, was diagnosed with kidney failure (around 32% of functioning) and also low level of potassium: FASOC [39(A)]. The Misleading Conduct by Silence that is pleaded is the other side of the coin in that Mr Kitoko pleaded that Ms Anderson and/or Ms Pioquinto should have disclosed the true position to him: FASOC [41]. The Fraudulent Misleading Representations that are pleaded are that Ms Anderson and Ms Pioquinto in representing that there was nothing of concern with Mr Kitoko, “deliberately” decided not to provide Mr Kitoko with care as a sick and injured person, and thereby being “Knowingly, recklessly or careless that it was not true or false, and knowingly, recklessly or careless that will cause the loss to the Applicant”: FASOC [39].

168    As with the other causes of action that I have considered thus far, I am not satisfied that Mr Kitoko’s misleading and deceptive claims have reasonable prospects of success.

169    As a starting point, one immediate difficulty with Mr Kitoko’s case is that the pleaded representation is falsified by the objective record. As Fagan J found, the undisputed records from Canterbury Hospital established that both Mr Kitoko and his GP were informed that his creatinine level was unusual, that further investigations may be 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”. That accords with my own review of the discharge records from Canterbury Hospital. In other words, even if representations were made, the objective records indicated that they were not to the effect that there was “nothing of concern”. Rather, there was a recognition that further investigations may be required as to his health and he should return in the event of fever, worsening pain or other concerns. It should be observed that these representations were made in the context of Mr Kitoko being discharged from the Emergency Department of a public hospital and not from a specialist unit of that hospital.

170    Further, Mr Kitoko’s pleading does not disclose why such representations were false or misleading, or knowingly or recklessly so, beyond bare assertion. The only assertion that is made in this regard is that a medical report confirmed that he had kidney failure, low levels of potassium and pain in his abdominal right flank, but that did not falsify the representation that further investigations were required as to his health.

171    More critically, Mr Kitoko’s pleaded case does not articulate in any sensible way the causally connected loss or damage that he suffered by reason of the alleged representations. In the particulars to this claim, Mr Kitoko asserts that the representations resulted in a “loss of chance or opportunity” without identifying what this “chance” or “opportunity” was, how it was lost, and what damage was occasioned as a result. The medical records indicate that Mr Kitoko attended Canterbury Hospital on 21 March 2021 and was discharged later that day and then presented to St George Hospital for admission on the following day, 22 March 2021, where he was then treated until he was discharged on 24 March 2021 (returning later in respect of further pain). However, Mr Kitoko’s case is that in reliance upon the representation made by Ms Pioquinto he went home, but he then returned to a different hospital the very next day precisely as he was told to do if the pain persisted. Nothing in the pleaded case discloses what loss Mr Kitoko suffered by reliance on the alleged representation. Rather, as noted above, the pleaded claim for loss and damage seeks money by way of “fair and adequate compensation for the loss or injury sustained by reason of reliance on Hung’s and/or UTS’s wrongful conducts at the discharging time”. As noted above, the claimed loss here is entirely disconnected to the cause of action pleaded against the relevant respondent (and concerns the conduct of persons that are not parties to the present proceedings). The more generic pleadings as to damages at FASOC [70]–[77] add nothing to the claim.

172    I am comfortably satisfied that Mr Kitoko’s pleaded misleading and deceptive conduct claims have no reasonable prospects of success and should be summarily dismissed.

173    I am also satisfied that it would be an abuse of process to permit Mr Kitoko to litigate a cause of action that is premised on a representation that is contrary to the finding made by Fagan J (based on uncontested records) as to what was, in fact, conveyed to Mr Kitoko. To be clear about this, the finding made by Fagan J (based on uncontested records) is not consistent with the assertion that Mr Kitoko was told that there was “nothing wrong” and he could simply “go home”. Rather, as Fagan J found, Mr Kitoko was specifically told that his health conditions required further investigation. Although Fagan J’s finding was made in the context of an interlocutory application, it was nevertheless a finding made on the basis of objective documentary records which Mr Kitoko did not contest. Again, as with the causes of action I have considered thus far, I consider it would be oppressive and unfair to the respondents to have to be met with further litigation in seeking to falsify a pleaded representation where a finding has already been made that falsifies it.

174    As a result of the conclusions I have reached, it is unnecessary for me to consider whether an issue or Anshun estoppel arises, or to further consider whether Mr Kitoko’s claims are maintainable on other reasons including that it fails to establish whether the relevant conduct was engaged in “trade or commerce” and in reliance upon the (long since repealed) Trade Practices Act 1974 (Cth).

6.5    The unconscionable conduct claims

175    The unconscionable conduct claims were also not pleaded or advanced in the SC Proceedings. However, as I will explain, they are inextricably bound up with the conspiracy and negligence claims.

176    As set out above, the unconscionable conduct claims proceed on the basis of certain matters that the respondents are said to have “known or ought to have known”.

177    The starting premise at FASOC [46] is that SLHD, Ms Anderson and Ms Pioquinto knew or ought to have known of the matters pleaded in the FASOC at [6] and [28A]. The next premise pleaded at FASOC [47] is that all of the respondents knew or ought to have known of the matters pleaded in the FASOC at [6], [7], [8], [9] and [28A]. The next premise pleaded at FASOC [48] is that all of the respondents knew or ought to have known the matters pleaded in the FASOC at [7(x)(c)], [7(x)(d)], [8] and [9]. It is later pleaded at FASOC [51] that by reason of the matters pleaded in the FASOC at [6], [7], [8], [9], [28A] and [35]-[39], the conduct of the respondents pleaded in the FASOC at [20(a)], [20(b)], [20(c)], [20(e)], [20(f)], [21] and [22] was unconscionable. The pleaded claims as to the “Additional Unconscionable Conduct” at FASOC [52] proceed on the premise that SLHD, Ms Anderson and Ms Pioquinto engaged in misleading and deceptive conduct (which I have dealt with above).

178    It is to be immediately noted that the FASOC does not contain a paragraph 28A or paragraph 7(x)(d) (despite the references to such paragraphs in the FASOC at [48] and [51]). Putting this to one side, it is clear from the FASOC that the essential factual and other premises upon which the unconscionable conduct claims are based are entirely reliant upon the matters pleaded in the FASOC at [6], [7], [7(x)(c)], [8], [9], [20(a)], [20(b)], [20(c)], [20(e)], [20(f)], [21], [22] and [35]–[39]. As to each of these:

(a)    the pleading at FASOC [6] is the alleged conspiracy between the respondents and others to “blacklist” Mr Kitoko and to refuse admission and treatment to him at hospitals operated by SLHD. This is a claim which, as addressed above, is one that I am satisfied should be summarily dismissed;

(b)    the pleading at FASOC [7] relates to Mr Kitoko’s alleged treatment at St George Hospital, including by way of retribution, which, as addressed above, is also one I am satisfied should be summarily dismissed;

(c)    the more specific pleading at FASOC [7(x)(c)] is, in fact, a particular which relates to an allegation as to particular forms of treatment which were unable to be performed on Mr Kitoko due to his apparent weight at the time;

(d)    the pleading at FASOC [8] relates to the alleged conspiracy between the respondents and others who “purported to discipline” Mr Kitoko which, as addressed above, is one that I am satisfied should be summarily dismissed;

(e)    the pleading at FASOC [9] relates to the alleged physical and sexual assaults to which Mr Kitoko was apparently subjected which, as addressed above, is one that I am satisfied should be summarily dismissed;

(f)    the pleadings at FASOC [20(a)], [20(b)], [20(c)], [20(e)], [20(f)], [21], [22] relate to allegations as to deliberate acts engaged in variously by the respondents in relation to his discharge from the Emergency Department at Canterbury Hospital in circumstances of Mr Kitoko’s alleged kidney failure, low potassium level and abdominal pain, which, as addressed above, are part of the negligence claims that I am satisfied should be summarily dismissed; and

(g)    the pleadings at FASOC [35]–[39] repeat Mr Kitoko’s allegations as to physical and sexual assaults and injuries, as well as the alleged misleading and deceptive statements made by SLHD, Ms Anderson and Ms Pioquinto as to there being “nothing wrong” with Mr Kitoko and that he could “go home”.

179    It is apparent from this analysis that the entirety of the Unconscionable Conduct and Additional Unconscionable Conduct Claims proceed on premises that are inextricably entwined with other assertions that I have determined should be summarily dismissed both because they have no reasonable prospects and they give rise to an abuse of process.

180    It is unnecessary for me to further decide whether the unconscionable conduct claims give rise to an issue or Anshun estoppel. It is also unnecessary for me to further consider whether Mr Kitoko’s unconscionable conduct claims are maintainable for other reasons including that they fail to establish whether the relevant conduct was engaged in “trade or commerce” and by reason of Mr Kitoko’s reliance upon the Trade Practices Act.

6.6    The fiduciary duty claims

181    The fiduciary duty claims that Mr Kitoko has advanced against Ms Pioquinto and Mr Qui are also ones that are, in large measure, inextricably intertwined with the other claims.

182    The fact that the fiduciary duty claims are tied to the other claims is made plain in the FASOC at [60] where:

(a)    the first particular to the claim that Ms Pioquinto and Mr Qui breached their fiduciary duties asserts that Mr Kitoko “relies on the material facts pleaded above and the particulars of negligence (Personal Injury) claims filed on 02 November 2022 at NSW District Court (File No: 2022/00329827)”; and

(b)    other particulars as to the alleged breaches of fiduciary duty by Ms Pioquinto and Mr Qui relate to them seeking to injure or harm Mr Kitoko in furtherance of the conspiracies that he alleges.

183    For these reasons alone, I am satisfied that the fiduciary duty claims should also be summarily dismissed as having no reasonable prospects and as an abuse of process.

184    As a result of the conclusions I have reached, it is not necessary for me to deal with other aspects of the fiduciary duty claims that allege (at FASOC [60], Particulars at (2)) that Ms Pioquinto and Mr Qui breached their fiduciary duties because of an alleged misuse of information pertaining to Mr Kitoko’s previous claims and litigation in the District Court, the NSW Anti-Discrimination Board, the NSW Supreme Court, the (then) Federal Circuit Court, and this Court which are said to have been the furtherance of a “conspiracy to discontinue” Mr Kitoko’s candidature for a PhD in Biomedical Engineering at UTS. These claims appear misconceived. Putting to one side the existence and content of the fiduciary duties allegedly owed by Mr Qui and Ms Pioquinto, the FASOC does not articulate the basis upon which it is said that information relating to the earlier proceedings were “confidential” in circumstances where they have been the subject of public determinations by various courts and tribunals, let alone how such information was misused. As to the latter matter, the only apparent allegation is contained at FASOC [60], Particulars at (2)(C) where it is alleged that Mr Kitoko was asked on five different occasions by Mr Qui to confirm that he was a “Biomedical Engineering Researcher from the UTS”. Had I not been satisfied that Mr Kitoko’s fiduciary duty claims should be summarily dismissed, I would have been additionally satisfied that this aspect of Mr Kitoko’s claim was untenable and doomed to fail on these additional grounds.

6.7    The breach of contract claims

185    The breach of contract claims pleaded by Mr Kitoko are also ones that are inextricably linked to the conspiracy and negligence claims. This is made plain from the particulars to the FASOC at [68] which assert that SLHD and SESLHD breached their contracts with Mr Kitoko by failing to take “reasonable care” by engaging in the very same conduct that is the subject of the negligence and conspiracy claims.

186    Putting to one side whether Mr Kitoko has articulated a tenable claim as to the existence of a contract as between him and SLHD and/or SESLHD or a conventional estoppel to that effect, his breach of contract claims should be summarily dismissed as they are inherently tied to accepting essential premises in the conspiracy and negligence claims which I am satisfied should be summarily dismissed.

6.8    Mr Kitoko’s contentions as to further evidence and that the matter should proceed to trial

187    As noted above at [109], Mr Kitoko submitted that it would not be appropriate to summarily dismiss his claims when there are triable issues in respect of which he wishes to adduce further evidence. I do not agree. The further evidence that Mr Kitoko wishes to adduce are from unspecified persons and alleged eyewitnesses who “could substantiate” or “support” his claims. This inverts the process. As Colvin J stated in Azad at [1]:

Australian courts do not start with a grievance and then direct the investigations and inquiries to be made. There are no examining judges for civil claims. Instead, the procedures adopted by the courts allow each party to present their case to the judge. Each party must comply with procedures that are designed to ensure fairness to both sides in the case. In modern practice, this is done through disclosure and a disciplined focus on what is genuinely the extent of the legal dispute. Although the system is described as adversarial, proceedings are conducted on the basis that all litigants and their representatives have a duty to communicate with other parties and the Court with due formality and civility.

188    The obligation fell upon Mr Kitoko to explain and articulate the essential matters of fact and law in support of his claims. It is antithetical to the adversarial system of justice that Mr Kitoko be permitted to maintain claims that he cannot articulate simply on the basis that he could make out a triable case by calling evidence in the future from unspecified persons and alleged eyewitnesses.

7.    DISPOSITION

189    For the above reasons, the proceedings should be summarily dismissed under s 31A(2) of the FCA Act. Mr Kitoko should pay the respondents’ costs as agreed or taxed.

Associate:

Dated:    8 August 2025

SCHEDULE OF PARTIES