Federal Court of Australia

Kitoko v University of Technology Sydney (No 3) [2025] FCA 915

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal filed on 2 August 2024 be dismissed.

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

3.    On or by 8 September 2025, the applicant file any affidavits and submissions as to whether any orders should be made under s 37AO of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), with any submissions being of no more than 20 pages in length.

4.    The question as to whether the Court should make any orders under s 37AO of the FCA Act be listed for hearing at a time convenient to the Court and the applicant after 8 September 2025.

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 2 August 2024, the applicant (Mr Kitoko) seeks an extension of time and leave to appeal from the orders made by the primary judge on 15 April 2021: Kitoko v University of Technology Sydney [2021] FCA 360 (PJ or primary judgment).

2    The short background is this. Mr Kitoko commenced proceedings in this Court (NSD 911 of 2020) against the respondents in which he made various allegations as to breaches of contract and fiduciary duty, negligence, tortious conspiracies, and statutory claims for misleading and deceptive and unconscionable conduct. Each of these causes of action related, in one way or another, to certain events including:

(a)    an incident in which Mr Kitoko claimed to have suffered an injury at the 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 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.

3    The ten respondents to the proceedings are as follows:

(a)    the University of Technology Sydney (UTS), the first respondent;

(b)    various officers of UTS, specified as the second respondent, though comprising Hung Tan Nguyen, Professor Mehran Abolhasan, Ms Phyllis Angus, Mr Nicky Salomon, Ms Sandra Schuck and Mr Ahmed Al-Ani;

(c)    Mirvac Real Estate Pty Ltd (Mirvac), the third respondent, which was the apparent operator of the Broadway Shopping Centre;

(d)    Mr David Cooper, the fourth respondent, who was a lawyer of Mirvac;

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

(f)    DLA Piper Australia, the sixth respondent, who were the lawyers for Access Group;

(g)    Sydney Local Health District (SLHD), the seventh respondent;

(h)    officers of SLHD, specified as the eighth respondent, though comprising Ms Teresa Anderson and Mr Alexander Nguyen;

(i)    the University of New South Wales (UNSW), the ninth respondent; and

(j)    Community Migrant Resource Centre (CMRC), the tenth respondent.

4    In the proceedings before the primary judge, Mr Kitoko filed four interlocutory applications seeking default or summary judgment against the respondents and, in turn, each of the respondents filed applications seeking summary dismissal, strike out and/or a permanent stay of the proceedings. It is these applications that the primary judge heard and determined in the primary judgment.

5    In the result, the primary judge concluded that all of Mr Kitoko’s causes of action should be summarily dismissed, and, accordingly, dismissed the proceedings in their entirety: PJ [139]. As a result, the primary judge necessarily dismissed each of Mr Kitoko’s applications: PJ [140].

6    Now, after some 3 years and 3 months have passed, Mr Kitoko belatedly seeks to set aside the primary judge’s orders. While the Court has jurisdiction to determine an appeal from a decision of a single judge under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), leave to appeal must be obtained pursuant to s 24(1A) as a decision granting or refusing summary judgment is specified to be interlocutory in nature by s 24(1D)(b). Pursuant to r 35.13(a) of the Federal Court Rules 2011 (Cth) (FC Rules), Mr Kitoko had 14 days from the date on which the primary judgment was pronounced to file an application for leave to appeal such that it was required to be filed on or by 29 April 2021. He did not do so. Instead, as I have mentioned, the application has been made after some 3 years and 3 months have passed. As a result, Mr Kitoko has applied for an extension of time under r 35.14 of the FC Rules. In support of his application, Mr Kitoko filed an affidavit dated 7 August 2024, which I have read.

7    This application is opposed by each of the respondents. The respondents relied on an affidavit of Mr Bridges-Webb (the solicitor for SLHD and its officers) which sets out the procedural history of the various proceedings that Mr Kitoko has instituted over the years. The respondents otherwise relied upon documents contained in a court book that was received into evidence as an exhibit.

8    Mr Kitoko’s application for an extension of time was heard together with separate but related proceedings (NSD 1595 of 2024) in which the respondents in those proceedings, which include SLHD and Ms Teresa Anderson, sought summary dismissal of those proceedings.

9    Having considered all of the materials, I am not satisfied that an extension of time should be granted and, accordingly, Mr Kitoko’s application should be dismissed. Mr Kitoko should pay the respondents’ costs as agreed or taxed. My reasons for so concluding are as follows.

2.    APPLICABLE PRINCIPLES

10    The principles applicable to the grant of an extension of time were not in dispute between the parties. They are well settled. The power to extend time involves an exercise of discretion, but that discretion must be exercised judicially and, as with other powers, it is to be exercised bearing in mind the overarching dictates enshrined in s 37M of the FCA Act.

11    Mr Kitoko bears the onus of establishing that an extension should be granted: Khondoker v Minister for Immigration & Citizenship [2012] FCA 654 at [56] (Foster J). The overarching consideration when determining whether to grant an extension of time is whether injustice may arise by a strict application of the time limit: Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578 at [11] (Thawley J) (citing Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480 (McHugh J); Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 (Reynolds, Hutley and Bowen JJA); Finch v The Heat Group (No 3) [2017] FCA 64 at [33] (Pagone J)).

12    Depending on the context, in considering whether to grant an extension, the Court generally considers matters such as: the length of the delay; whether an acceptable explanation for the whole of the delay has been provided; the likelihood of leave to appeal being granted; and the consequences of granting or refusing the extension, including any prejudice to the respondents: see AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [35] (Raper J; Wigney and Lee JJ agreeing); see also Quach at [12] (Thawley J) (citing Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348–9 (Wilcox J); Parker v R [2002] FCAFC 133 at [6] (Spender, O’Loughlin and Dowsett JJ); Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573 at [3]–[4] (Nicholas J); Fualau v Minister for Home Affairs [2020] FCAFC 11 at [6] (Murphy, Davies and O’Bryan JJ)).

13    Leave to appeal will generally be refused unless the application for leave establishes that: (a) the decision giving rise to the orders is attended by sufficient doubt to warrant it being considered by a Full Court; and (b) substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398–99 (Sheppard, Burchett and Heerey JJ). These considerations are cumulative and leave to appeal will not be granted unless each limb of the test is made out: AIX20 v Director-General of Security [2025] FCAFC 38 at [13] (Murphy, Bromwich and Shariff JJ). When considering whether to grant leave to appeal from interlocutory orders, account is taken of the subject matter of those orders and whether they relate to points of procedure or determine substantive rights. As stated by Raper J in AZO24 at [33], in the latter case, leave will be more readily granted but an applicant seeking leave to appeal must still show that the decision below is attended by sufficient doubt, and that substantial injustice would flow from the decision to refuse leave: citing Décor at 400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564 at [43] (French J; Beaumont and Finkelstein JJ agreeing); Sandhurst Trustees Ltd v Clarke [2015] FCAFC 21; 321 ALR 1 at [17] (Dowsett, Davies and Wigney JJ) citing Wills v Australian Broadcasting Company [2009] FCAFC 6; 173 FCR 284 at [31] (Rares J; Emmett J agreeing).

14    It will seldom be in the interests of justice to grant an extension of time for leave to appeal where that application would have little or no prospects of success, given the additional resources that would be required of the parties and the Court, and the impact on other litigants and users of the Court: see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (MZBAP First Instance) (Mortimer J, as her Honour then was) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ)). In considering Mr Kitoko’s prospects of success, the Court is not to conduct a summary hearing of the appeal but the grounds should be considered on their face and examined at a “reasonably impressionistic level” without descending into a fuller consideration of the arguments for and against each ground: see MZABP First Instance at [62] (Mortimer J); Katoa v Minister [2022] HCA 22; 276 CLR 579 at [18] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

3.    THE EVIDENCE AND SUBMISSIONS

15    As noted above, Mr Kitoko filed an affidavit in support of his application for an extension of time. That affidavit was read without objection. I have read and considered the contents of that affidavit carefully. It is a lengthy document which occupies pages 471 to 1,388 of the court book (including annexures). Its contents are a commixture of evidence and submission. I have taken into account that Mr Kitoko was self-represented and read the document as advancing Mr Kitoko’s case irrespective of its form. I have also had regard to the contents of Mr Kitoko’s application for an extension of time, which is also a lengthy document (occupying pages 1 to 470 of the court book). The length of the application is explained by the fact that it attaches a Draft Notice of Appeal that outlines the various grounds, sub-grounds and arguments in support of Mr Kitoko’s contention that the primary judge erred in summarily dismissing his claims.

16    In giving careful consideration to the documents that Mr Kitoko has filed, 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 agreeing); Hamod v New South Wales [2011] NSWCA 375 at [311] –[316] (Beazley JA; Giles and Whealy JJA agreeing).

17    By way of summary, Mr Kitoko seeks to explain his delay on the grounds that he was not aware of the need to seek leave to appeal, that his health had deteriorated at the time of the primary judgment and thereafter, and that he could not afford legal advice or to pay for the transcript of the proceedings before the primary judge. Mr Kitoko further contended that the respondents have suffered no prejudice from the delay. Finally, Mr Kitoko contended that he has an arguable case that leave to appeal would be granted on the basis that the primary judgment is attended by sufficient doubt about a number of matters which are addressed at length in the Draft Notice of Appeal. Mr Kitoko’s contentions in this regard are extensive but may broadly be categorised into arguments that the primary judge denied him procedural fairness, was biased against him, and engaged in a large number of errors of fact and law.

18    The respondents disputed Mr Kitoko’s contentions. They said that there had been a substantial delay for which there was no adequate explanation and this was reason enough to dismiss Mr Kitoko’s application. They further relied upon the history of the very many unmeritorious proceedings that Mr Kitoko has instituted over time in order to support their position that the primary judge’s determination that Mr Kitoko’s claims should be summarily dismissed was not attended by sufficient doubt such that he has no arguable case for leave to appeal.

4.    BACKGROUND TO THE PRIMARY JUDGMENT

19    In order to make sense of the primary judgment, it is necessary to outline the primary judge’s careful consideration of the very many proceedings that Mr Kitoko has commenced over time in various courts and tribunals.

4.1    The history of past proceedings involving the respondents

20    Mr Kitoko’s various claims have as their impetus the Broadway Incident and the discontinuance of his PhD candidature at UTS.

21    In 2013, Mr Kitoko commenced proceedings in the District Court of New South Wales against Mirvac (now the third respondent) and Access Group (now the fifth respondent) seeking damages for personal injury allegedly suffered by reason of the Broadway Incident (District Court Proceedings). In those proceedings, Mr Cooper (now the fourth respondent) was a lawyer for Mirvac, and DLA Piper (now the sixth respondent) were the solicitors for Access Group. An employee of UNSW (now the ninth respondent), Associate Professor Mark Pickering, was a witness in those proceedings. A neurologist employed at Concord Public Hospital (CPH) by SLHD (now the seventh respondent), Dr Lord, who had treated Mr Kitoko, prepared medical reports which were before the District Court.

22    Separately to the District Court Proceedings, Mr Kitoko had lodged an internal appeal relating to the discontinuance of his PhD candidature.

4.1.1    The District Court Proceedings

23    The District Court Proceedings were dismissed with costs on 7 August 2015: Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152 (Elkaim SC DCJ) (Proceedings 1).

24    The primary judge observed that, during the trial in the District Court, CCTV footage demonstrated that Mr Kitoko had “simply walked into the pane of glass”, rather than having slipped on a viscous substance on the floor due to negligence of the defendants, as was alleged by him: PJ [14]. The District Court also rejected claims made by Mr Kitoko that the CCTV footage had been falsified: PJ [14].

25    Mr Kitoko appealed from the decision of the District Court, but the Court of Appeal of New South Wales dismissed his application with costs: Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201 at [59] (Macfarlan JA, Sackville AJA and Garling J) (Proceedings 2).

26    On 16 November 2016, Mr Kitoko’s application for special leave to appeal to the High Court was refused: Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305 (Gageler J, as his Honour then was) (Proceedings 3). Although the District Court Proceedings related to a different subject matter altogether to Mr Kitoko’s complaints against UTS, the primary judge relevantly observed that in his application for special leave, Mr Kitoko asserted that since commencing the proceedings in the District Court, “Broadway Mirvac shopping centre lawyers have worked in collaboration with … my PH.D main supervisor (Professor Hung Nguyen) at UTS for my punishment”: PJ [16].

4.1.2    NSW Civil and Administrative Tribunal proceedings

27    In 2016, Mr Kitoko commenced proceedings under the Anti-Discrimination Act 1977 (NSW) in the NSW Civil and Administrative Tribunal (NCAT) against SLHD complaining that Dr Lord, as an employee of CPH (which is managed by SLHD), had engaged in conduct amounting to racial discrimination (Proceedings 4). Mr Kitoko alleged that Dr Lord had conspired with “Broadway” to falsify and/or deny him evidence in relation to his claim in the District Court Proceedings on the basis of his race: PJ [17].

28    On 27 June 2017, NCAT dismissed the proceedings for lack of substance: Kitoko v Sydney Local Health District [2017] NSWCATAD 209 (Principal Member A Britton and General Member F Given). On 29 September 2017, a summons filed by Mr Kitoko on 24 July 2017 in the Supreme Court of New South Wales seeking leave to appeal from the NCAT decision was dismissed with costs: see Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [13]–[14] (Proceedings 5).

29    Mr Kitoko then sought to bring an internal appeal from the decision of NCAT in Proceedings 4. This was out of time and, on 6 February 2018, an NCAT Appeal Panel refused Mr Kitoko’s application to extend the time to appeal, refused leave to appeal and otherwise dismissed the appeal: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 (Principal Member K Rosser and Senior Member S Frost) (Proceedings 6). On 2 October 2018, the Supreme Court refused Mr Kitoko’s application for leave to appeal from the NCAT Appeal Panel decision to the Supreme Court with costs: Kitoko v Sydney Local Health District [2018] NSWSC 1461 (Lonergan J) (Proceedings 7).

4.1.3    The Federal Circuit Court Proceedings

30    In May 2016, Mr Kitoko brought proceedings (SYG 1158 of 2016) against UTS in the (then) Federal Circuit Court of Australia (FCCA), alleging breaches of the Racial Discrimination Act 1975 (Cth) (RD Act) and the Disability Discrimination Act 1992 (Cth) in relation to the discontinuance of his PhD candidature (FCCA Proceedings or Proceedings 8).

31    On 28 March 2018, Judge Nicholls dismissed the FCCA Proceedings: Kitoko v University of Technology Sydney [2018] FCCA 699.

32    The primary judge observed that Judge Nicholls [12]–[51] comprehensively outlined the relevant factual background to the dispute concerning both the discontinuance of the Mr Kitoko’s PhD candidature and the Broadway Incident. It is useful for present purposes to extract what the primary judge said about these findings at PJ [21]:

•    The applicant enrolled as a PhD student in the Faculty of Engineering and Information Technology at UTS in January 2010, to be supervised by Professor Hung Nguyen. The applicant was awarded a UTS doctoral scholarship for a period of three years, being until December 2012.

•    Between January 2010 and June 2013, Professor Nguyen considered that the applicant was making “satisfactory progress” in his PhD research.

•    In November 2012, the applicant, with the support of Professor Nguyen, applied for a six month extension to his PhD scholarship.

•    In the Spring 2013 Progress Report, Professor Nguyen recorded that the applicant was making “satisfactory progress”.

•    By January 2014, the applicant had exceeded the maximum four year period for completing his PhD pursuant to the UTS Student Rules. The applicant applied in March and June 2014 for extensions to his PhD candidature, which were granted.

•    From Autumn 2014, Professor Nguyen expressed concerns regarding [Mr Kitoko’s] “unsatisfactory progress”.

•    In August and October 2014, a series of meetings were held by UTS staff, including Professor Nguyen, Associate Professor Abolhasan ([Mr Kitoko’s] Responsible Academic Officer) and Ms Phyllis Agius (a UTS Research Administration Officer) concerning [Mr Kitoko’s] PhD candidature, some of which were conducted with the applicant present. While Nicholls J noted some dispute between the parties as to the objective of the 8 October meeting (at [23]), a meeting was held then between Associate Professor Abolhasan, Professor Nguyen and the applicant with the apparent purpose of working out a way the applicant could complete his thesis by December 2014. The minutes of that meeting record that the applicant agreed to provide to UTS, in the next couple of weeks, a demonstration of his research system and methodology, including information around protocol and proof of ethics clearance for researching human subjects.

•    On 12 December 2014, Associate Professor Abolhasan sent an email to the applicant outlining that, contrary to what was agreed at the 8 October 2014 meeting, the applicant had not provided a demonstration of his research system and methodology, and had failed to complete a Spring 2014 Progress Report.

•    On 18 December 2014, the applicant attempted to submit his thesis to the Graduate Research School (GRS) for examination without a Supervisor’s Certificate from Professor Nguyen as required.

•    On 18 February 2015, a further meeting was held between the applicant, Professor Nguyen, Associate Professor Abolhasan and Ms Aki Plume, Manager at GRS. According to the minutes of the meeting the applicant indicated he did not have the necessary equipment to progress his research, to which Professor Nguyen asserted that he could arrange for the necessary “sensor” to be provided to the applicant if he stated what he needed. Associate Professor Abolhasan asserted that this was applicant’s final opportunity.

•    By 4 March 2015, Mr Kitoko applied for and was provided with the “sensor” referred to at the 18 February 2015 meeting.

•    On 13 March 2015, the applicant submitted an application for a further extension of his PhD candidature to the Dean of the GRS.

•    Between mid-March 2015 and early April 2015, Ms Agius, on behalf of Associate Professor Abolhasan, unsuccessfully attempted to organise another meeting with the applicant, with the applicant advising he was unavailable.

•    On 8 April 2015, by letter and email the applicant was advised that his PhD candidature was under review and “may be discontinued”.

•    On 15 April 2015, the applicant re-submitted his thesis to the GRS.

•    On 27 April 2015 and 4 May 2015, two meetings were held between the applicant, Professor Nguyen, Associate Professor Abolhasan and other relevant UTS staff members. at those meetings, the applicant alleged that due to a software upgrade on the computer on which he was using for his PhD research, “all data stored from the computer (including the raw supporting data generated from [his] experiments) were lost”.

•    On 14 May 2015, the IT department at UTS advised that [Mr Kitoko’s] computer had been “re-imaged” on 9 March 2015 and that the applicant had been warned to back-up his computer prior to the upgrade.

•    On the same day, Associate Professor Abolhasan wrote to the Dean of GRS recommending that [Mr Kitoko’s] PhD candidature be discontinued.

•    On 19 May 2015, [Mr Kitoko] was advised that his enrolment had been discontinued.

•    On 5 June 2015, [Mr Kitoko] appealed the decision to discontinue his enrolment to the Appeals Committee.

•    On 7 August 2015, the Appeals Committee advised [Mr Kitoko] that at a meeting of the Appeals Committee on 3 August 2015 it was decided that his appeal be dismissed.

•    On 12 August 2015, [Mr Kitoko] lodged a complaint with the NSW Ombudsman, but was advised on 3 February 2016 that no further action would be taken.

33    In the FCCA Proceedings, Mr Kitoko claimed that Professor Nguyen and other staff discriminated against him on the grounds that he is a “black African” and that he is “disabled in the brain, hands and feet” as a result of the Broadway Incident. Mr Kitoko alleged that the discontinuation of his PhD thesis was “unfairly imposed” on him by Professor Nguyen on the basis of this discrimination, as well as that it caused Professor Nguyen to effectively abandon his supervision, restrict and deny access to facilities and services, and physically threaten him. It was further alleged that Professor Nguyen colluded with Dr Lord and CPH, and that CPH discriminated against him on the basis of race, in circumstances where, after the events in question, Professor Nguyen’s son was offered, and appointed to, a position at CPH as a reward for the alleged collusion. It was also alleged that Professor Nguyen and CPH colluded with “Mirvac’s network” (the operators of Broadway) to “discriminate, victimize and humiliate Mr Kitoko. Additionally, Mr Kitoko alleged that UTS’s conduct, including the decision to discontinue his enrolment, could not have occurred in relation to any student with “different race, colour, descent or national or ethnic origin”.

34    All of Mr Kitoko’s claims were rejected. As the primary judge observed, the essential findings made by Judge Nicholls were as follows (at PJ [23]):

(a)    The allegation that Professor Nguyen had colluded with Mirvac was rejected because “[o]n their face, such assertions of collusion by individuals across a number of large and separate organisations, and in the circumstances presented, simply in order to humiliate or victimise Mr Kitoko, could be described as fanciful. However, the substance of the allegations for current purposes must arise from the evidence that is before the Court. It is here that one particular weakness of Mr Kitoko’s case is revealed” ( at [73]).

(b)    The allegation that Professor Nguyen had abandoned supervision of [Mr Kitoko] was rejected. Judge Nicholls found that until about June 2013, Professor Nguyen had, among other things, supported [Mr Kitoko’s] application for a six-month extension to his PhD scholarship, and from that time, it was [Mr Kitoko] himself who had ignored or failed to comply with reasonable requirements for his academic progress, which was not the result of a lack of supervision ( at [82] ff).

(c)    The allegations that Professor Nguyen had told [Mr Kitoko] not to come into his office because he was allegedly the “least intelligent student” he had encountered in his academic careers, and that Professor Nguyen had physically threatened him on 18 February 2015, if they were indeed true (which was not accepted), amounted to racial or disability discrimination.

(d)    The proposition that a $500 payment made by UTS to [Mr Kitoko] in June 2015, which was after UTS had advised [Mr Kitoko] that his PhD had been discontinued, in some way made the discontinuance decision inoperative or was somehow evidence of discrimination.

(e)    The proposition that the minutes of the Appeals Committee were fabricated, on the basis that the minutes were not finalised until 10 August 2015, three days after [Mr Kitoko] was advised of the Appeals Committee decision.

35    The primary judge also placed reliance on other findings made by Judge Nicholls, as follows at PJ [24]–[29]:

24     Of particular importance to the present proceeding, Nicholls J also found that each of the four reasons advanced by Associate Professor Abolhasan for recommending that [Mr Kitoko’s] PhD candidature be discontinued were reasonably available on the information before him (at [182]-[183]). In summary, those reasons were that:

(a)    the [Mr Kitoko] had exceeded the maximum time for PhD candidature by one and half years;

(b)    the [Mr Kitoko] had received two successive unsatisfactory progress reviews;

(c)    the [Mr Kitoko] had produced a thesis unsuitable for examination; and

(d)    the [Mr Kitoko] had failed to produce, without sufficient explanation, necessary information to allow his thesis to be examined, despite being afforded multiple opportunities to do so.

25     At [190]-[196], Nicholls J made the following general remarks concerning [Mr Kitoko’s] allegations (emphasis added):

190.    As set out above, and as against this background, in essence, the entirety of Mr Kitoko’s case is that Professor Nguyen was responsible for, and acted to cause, the discontinuance of his Ph.D. candidature. The assertion is that Mr Nguyen was motivated to do so, and engaged in various conduct to that end, because he racially discriminated against Mr Kitoko (because he was a “black man” or a “black African”), and did so in the knowledge that Mr Kitoko had suffered injuries, and had a disability, as a result of an accident in 2010.

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

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

193.    It must also be said that parts of Mr Kitoko’s submissions go beyond being characterised as simply lacking any probative evidence, to being described as “fanciful”. These were matters in which, in particular, he sought to pursue in cross examination of Professor Nguyen.

194.    As set out above, Mr Kitoko believes that Professor Nguyen was part of the Mirvac network. Mr Kitoko’s proposition was that Professor Nguyen’s son was employed by the CPH as a “reward” for Professor Nguyen’s “collusion” with Mirvac, in ensuring the cessation of Mr Kitoko’s Ph.D. candidature.

195.    The “scheme” envisaged by Mr Kitoko is that Dr Lord, who was employed at the CPH, and had previously treated Mr Kitoko, and who had also “discriminated” against Mr Kitoko because he was a “black African”, was also a part of the “Mirvac network”, and this meant that somehow Professor Nguyen’s son secured employment at the hospital as a result of this “scheme”.

196.    Even if this entire proposition had some rational basis (which it does not), on the evidence before the Court, it still does not establish, let alone indicate, that Professor Nguyen discriminated against Mr Kitoko because he was a “black African”. Even within its own “logic”, Mr Kitoko’s asserted “scheme” proposes that Professor Nguyen was motivated not by racial reasons, but to obtain a “reward” for his son.

26     With respect to the alleged conspiracy between the so-called “Mirvac network”, Nicholls J found at [104] that “[t]he parallel drawn by Mr Kitoko in the absence of any other evidence, to support the various iterations of his claim that a number of people have “colluded” to discriminate against him, must be rejected on any reasonable or rational view of the evidence”. To similar effect, Nicholls J concluded at [218]:

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

27     Judge Nicholls found at [219] that, based on the evidence before the FCCA, the cause of the discontinuance of [Mr Kitoko’s] PhD candidature was his own inability to achieve satisfactory progress, despite the numerous opportunities given to him.

28     These findings of Nicholls J with respect to the “Mirvac network” are significant, as the parties who in the FCCA Proceedings were said to constitute this network of collusion, as best can be ascertained, include the third to tenth respondents in the present proceeding, among others.

29     Having made such factual findings and after setting out the relevant legislation, Nicholls J concluded at [251] that [Mr Kitoko’s] allegation that UTS had breached ss 9, 11, 17, 18C and 27 of the RD Act, and ss 22(2) and 42 of the DDA should be dismissed.

36    On 1 May 2018, Mr Kitoko filed a notice of appeal with the registry of this Court seeking to appeal from the decision and orders of Judge Nicholls. However, the application was filed outside the period prescribed by r 36.03(a) of FC Rules (which, at the time, was 21 days).

37    On 26 June 2018, Rares J dismissed Mr Kitoko’s application for an extension of time: Kitoko v University of Technology Sydney [2018] FCA 1004 (Proceedings 9). At PJ [31]–[32], the primary judge relied upon the findings made by Rares J, especially those in which his Honour rejected as “fanciful” elaborate conspiracy theories that Mr Kitoko had advanced.

4.1.4    Further NSW Supreme Court Proceedings

38    On or about 12 October 2017, Mr Kitoko commenced proceedings against UTS seeking judicial review of its decision to discontinue his PhD candidature on the grounds that it was in breach of the UTS Student Rules, and was tainted by fraud, collusion and corruption (Proceedings 10). On 11 July 2018, this application was summarily dismissed with costs: Kitoko v University of Technology Sydney [2018] NSWSC 1007 (Harrison AsJ).

39    The primary judge relied on the fact that Harrison AsJ concluded that aspects of Mr Kitoko’s application for judicial review should be dismissed on the basis of issue estoppel. These grounds concerned allegations of fraud, collusion and corruption by UTS and other persons not named as respondents, and allegations that Professor Nguyen had unfairly imposed two unsatisfactory progress reviews and discontinued Mr Kitoko’s PhD. As the primary judge pointed out at [90]–[91], Harrison AsJ set out her conclusions concerning issue estoppel as follows:

90    The Federal Circuit Court made findings and conclusions in relation to ground of review 2A unsatisfactory progress and discontinuance, 2B alleged fraud, collusion and corruption — abandonment and 2C further alleged fraud, collusion and corruption arising out of [Mr Kitoko’s] accident at Broadway.

91    It is my view that the same matters are agitated in this judicial review. They have already been decided by a decision of a judge in the Federal Circuit Court. The judicial decision of the Federal Circuit Court is final. Th at Federal Circuit Court decision involves the same parties as these current proceedings. The requirements for there to be an issue estoppel have been met. As these proceedings are the subject of issue estoppel and therefore cannot be relitigated in this Court, they should be dismissed.

40    On 23 October 2019, Wright J dismissed Mr Kitoko’s appeal from the decision of Harrison AsJ with costs: Kitoko v University of Technology Sydney [2019] NSWSC 1437 (Proceedings 11).

5.    THE PRIMARY JUDGMENT

41    The primary judge essentially concluded that Mr Kitoko’s claims should be summarily dismissed on the basis that they constituted an abuse of process. In arriving at this conclusion, the primary judge carefully considered each of Mr Kitoko’s pleaded claims at PJ [37]–[52]. The primary judge next turned to set out the applicable principles relating to summary dismissal, default judgment and strike out: PJ [53]–[70]. His Honour then set out the principles of abuse of process, issue estoppel and Anshun estoppel: PJ [71]–[84]. Next, the primary judge examined the evidence that had been led by the parties in support of their respective applications: PJ [85]–[106].

42    The primary judge’s critical reasoning at PJ [107]–[140] was as follows:

(a)    the breach of contract, collusion and conspiracy claims as against UTS and its officers were precluded by reason of issue estoppel, Anshun estoppel and/or abuse of process in so far as they sought to re-litigate issues of fact already finally determined in the FCCA Proceedings and in the proceedings before the NSW Supreme Court, and otherwise had no reasonable prospects of success;

(b)    specifically, the breach of contract claims relied upon factual matters that had been determined adversely to Mr Kitoko in the FCCA Proceedings;

(c)    as against the other respondents, the breach of contract claims constituted an abuse of process, applying the High Court’s decision in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [21]–[22] (French CJ, Bell, Gageler and Keane JJ). The primary judge reasoned that, even though the third to tenth respondents were not parties to the FCCA Proceedings and the proceedings before the NSW Supreme Court, an abuse of process may still arise where re-litigation of an issue would be “unjustifiably oppressive” or “manifestly unfair” to a party or “would bring the administration of justice into disrepute” including because Mr Kitoko’s allegations were based on a conspiracy or collusion with UTS and its officers which substantially relied upon the same factual matrix advanced in those other proceedings;

(d)    Mr Kitoko had not satisfied the primary judge as to any good reason why the allegations could not have been raised in the previous proceedings;

(e)    the primary judge rejected Mr Kitoko’s submission that the doctrine of abuse of process does not apply to the FCCA Proceedings because the issues determined were not identical to the claims before the primary judge. The primary judge reasoned that even though the causes of action in the FCCA Proceedings were different to those being advanced before his Honour, the factual matrix underlying the respective proceedings were substantially the same and had been finally determined against Mr Kitoko;

(f)    in any event, the primary judge reasoned that, to the extent that any factual allegations in relation to the breach of contract claim had not been finally determined by the FCCA Proceedings, the proceedings before the NSW Supreme Court or the NCAT Proceedings, they had no reasonable prospects of success including as they were “fanciful” and were founded on broad and sweeping allegations which lacked both specificity and any inherent credibility;

(g)    as to Mr Kitoko’s claims as to misleading and deceptive conduct and unconscionable conduct, the primary judge concluded that these claims could not be maintained for the same reasons and the doctrines of Anshun estoppel and/or abuse of process applied. His Honour reasoned that the material facts had already been finally determined in the FCCA Proceedings and in other respects, insofar as they are intelligible, the claims had no reasonable prospects of success as Mr Kitoko has not pleaded with sufficient clarity the “circumstances which gave the representation its deceptive and misleading character”;

(h)    the tort of conspiracy claims were an abuse of process and also attracted the doctrine of Anshun estoppel;

(i)    the negligence claim was an abuse of process and also attracted the doctrine of Anshun estoppel; and

(j)    the breach of fiduciary duty claim was also an abuse of process and attracted the doctrine of Anshun estoppel.

6.    CONSIDERATION

6.1    Delay and the explanations for it

43    Where the relevant delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] (Lee, Nicholson, Finkelstein JJ). However, where, as here, the delay is substantial, more is needed to establish that justice weighs in favour of the grant of an extension of time.

44    As noted above, there are four grounds that Mr Kitoko advanced by way of explanation for his delayed application for leave to appeal, being that he:

(a)    was not aware of the need to seek leave to appeal;

(b)    had health problems;

(c)    could not afford legal advice; and

(d)    could not afford the transcript.

45    As to Mr Kitoko’s first explanation, ordinarily, ignorance of the time limit is not regarded as a satisfactory explanation for delay: EBW21 v Minister For Immigration, Citizenship and Multicultural Affairs [2025] FCA 341 at [34] (Feutrill J). However, a less persuasive explanation may be sufficient where the required extension is for a comparatively short period of time: SZJRV v Minister for Immigration & Citizenship [2008] FCA 298 at [6] (Flick J).

46    In the present case, however, the required extension is not short, and, in fact, Mr Kitoko was informed about the requirement to seek leave to appeal shortly after the primary judgment was published. The evidence discloses that Mr Kitoko had been advised of that requirement by the Court’s registry on 11 May 2021 and that he was provided with copies of the relevant forms to be completed and filed to commence the application for leave. Further, on 19 May 2021, the Court sent another email to Mr Kitoko noting that the “Notice of Appeal provided on 11 May 2021 has not been filed”. These facts demonstrate that Mr Kitoko may have had an explanation for a delay up to when he was informed about that fact on 11 May 2021, but it does not explain the delay that then followed for a period of over three years.

47    Mr Kitoko’s next explanation is that he has suffered from health problems. Specifically, Mr Kitoko deposed that “by virtue of his deteriorated health circumstances, he was physically and morally unable to prepare and submit materials for the court proceedings”. The evidence before me establishes that after the primary judge published his reasons for judgment:

(a)    on 19 April 2021, Mr Kitoko presented to the Pelvic Floor and Bladder Unit at St George Public Hospital for a stent removal;

(b)    on 13 May 2021, Mr Kitoko was certified to be suffering from a severe medical condition, as a result of his health circumstances between 13 April 2021 to 30 April 2021;

(c)    on 12 June 2021, Mr Kitoko underwent an MRI of his right ankle;

(d)    on 27 July 2021, Mr Derryn Chiu (physiotherapist) issued a Physiotherapy Discharge report; and

(e)    on 30 August 2021, Mr Kitoko underwent a “nerve conduction study” and a report was issued by Dr Rajiv Wijesinghe.

48    However, as the respondents pointed out, the evidence also establishes that from 28 April 2021 to date, Mr Kitoko has been involved in multiple proceedings where he has represented himself and others including by preparing voluminous affidavit evidence and submissions in relation to those other proceedings. These proceedings include the following:

(a)    on 2 November 2022, Mr Kitoko commenced proceedings in the District Court against the SLHD, Ms Teresa Anderson, Ms Fatima Pioquinto, South Eastern Sydney Local Health District (SESLHD) and Mr David Qui (the SLHD Proceedings);

(b)    on 22 November 2022, Mr Kitoko also commenced proceedings in this Court (NSD 997 of 2022) against the SLHD, Ms Teresa Anderson, Ms Fatima Pioquinto, SESLHD and Mr Qui (the Previous SLHD Federal Court Proceedings); and

(c)    the SLHD Proceedings were transferred to the Supreme Court of NSW and were prosecuted unsuccessfully by Mr Kitoko all the way to the High Court throughout 2022 and 2024.

49    Based on the evidence before me, which was not challenged, I am prepared to accept that Mr Kitoko has suffered health problems, but I am not satisfied that he has established that his health problems explain the inordinate delay that has arisen here. That is especially so in circumstances where Mr Kitoko has prosecuted other proceedings during this period.

50    Mr Kitoko’s next explanation is that he could not afford legal advice and could not afford the transcript. In respect of a not dissimilar point that was raised in EBW21, Feutrill J at [36], observed that whilst the “applicant is self-represented and English is not her first language, she has not said that she was unable to comprehend the rules due to these disadvantages”. Similarly, here, I acknowledge that Mr Kitoko is self-represented and English is not his first language, but his history of commencing and prosecuting proceedings in various courts and tribunals demonstrate that his absence of legal acumen has not stood in the way of his assertion of legal rights.

51    Based on the totality of the evidence, I am not satisfied that Mr Kitoko has discharged his onus of establishing an explanation for the substantial delay. I am fortified in this conclusion by the fact that Mr Kitoko was well aware of the need to seek leave to appeal and an extension of time.

52    In my view, the absence of an adequate explanation for the delay is a powerful factor that weighs against the grant of an extension of time.

6.2    Prejudice

53    Mr Kitoko contended that the respondents have suffered, and will suffer, no prejudice by reason of the delay. He submits that this is especially the case in circumstances where he had informed the respondents of his intention to challenge the primary judgment and they were aware of his declining health conditions.

54    I do not agree with Mr Kitoko’s submissions. The fact is that some of Mr Kitoko’s claims relate to matters that happened some 15 years ago when the Broadway Incident is alleged to have occurred. Other aspects of his claims relate to the conduct of the proceedings that Mr Kitoko commenced in relation to that incident and, in particular, the evidence that was adduced in the course of those proceedings. Mr Kitoko’s claims in relation to the discontinuance of his PhD candidature also relate to events that stretch back over the last decade. His claims as to conspiracy seek to weave together various protagonists across the many proceedings he has commenced. Mr Kitoko has had a substantive determination of his rights following contested hearings on the merits in at least the District Court, NCAT and the FCCA.

55    In these circumstances, I am satisfied that the present delay of over three years does occasion prejudice to the respondents. That is so because time has marched on. Prejudice in this respect is presumptive from the delay in a real-world sense in that the respondents, as well as witnesses and others affected by Mr Kitoko’s various claims, have had over three years of assuming a finality of the claims he has brought. In so far as the respondents are concerned, they are to confront the prospect of calling witnesses whose memories are likely to be less clear as they might have been at an earlier point in time. As Meagher J observed in Garvey v Australian National University [2024] FCA 632 at [35]:

A material factor militating against the grant of an extension is any prejudice to the respondent, including prejudice in defending the proceedings; Doyle at 60; Duff v Freijah (1982) 62 FLR 280 at 287. As the respondent submitted, where the delay is lengthy, the Court is entitled to infer that there is prejudice suffered by the respondent: Maric v Comcare (1993) 40 FCR 244 17 AAR 259 at 250–251. This is because “[t]he longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose”: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 551. However, the absence of prejudice to the respondent does not, by itself, sufficiently justify the granting of an extension; Lucic v Nolan (1982) 45 ALR 411 at 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523.

56    I agree. I am satisfied that the prejudice occasioned to the respondents is a material factor militating against the grant of an extension of time in the present case.

6.3    Prospects of success

57    As noted above, the interests of the administration of justice are not served by allowing an extension of time for an application with no prospects of success. What is required is a reasonably impressionistic assessment without descending into the granular detail of the arguments for and against Mr Kitoko’s prospects in obtaining leave to appeal. However, the prospects of success in an application of the present type must take into account that leave to appeal is required, which, in turn, requires an impressionistic assessment of whether the primary judge’s decision was attended by sufficient doubt and whether substantial injustice would flow to Mr Kitoko if leave was not granted.

58    Mr Kitoko’s grounds of appeal are contained in the Draft Notice of Appeal, which is a lengthy document. I will deal with the primary arguments that Mr Kitoko seeks to advance at an impressionistic level.

6.3.1    The Procedural Fairness Ground

59    Mr Kitoko alleges that he was denied procedural fairness in the proceedings before the primary judge. Mr Kitoko, amongst other things, submits that he:

(a)    “was denied a fairness process before the Federal Court because the primary judge had refused to adjourn the hearing dated 06 April 2021 to a later reasonable stated date to give the Self-Represented Applicant a reasonable opportunity to take rest due to [his] medical conditions”;

(b)    “was denied procedural fairness “because he was not made aware of relevant practices and procedures to plead frauds and to amend the ASOC and was not invited to make a submission in support to evidence and also the respondents were not invited to respond or to make a submission in respect to [Mr Kitoko’s] fresh evidence”;

(c)    “was not invited to make a submission in support to evidence and also the respondents were not invited to respond or to make a submission in respect to [Mr Kitoko’s] fresh evidence”; and

(d)    was denied procedural fairness because the primary judge “deliberately ignored to consider all uncontested evidence deposed to the Federal Court by [Mr Kitoko]” and “…the primary judge read material that was not relied on by the parties, had relied upon or had allowed extraneous or irrelevant material to guide or affect him”.

60    In relation to Mr Kitoko’s first complaint, the transcript of the hearing before the primary judge indicates that, in light of claimed illness on his part, the primary judge specifically asked Mr Kitoko whether he was in a position to proceed with the hearing. In response, Mr Kitoko indicated that he was in a position to proceed with the hearing. Specifically, the following exchange occurred:

His Honour:     Okay. So you’re in a position to proceed today with these matters?

Mr Kitoko:     I can proceed.

His Honour:     Yes. All right. In that case we will proceed.    

61    The balance of the issues raised by Mr Kitoko relate to complaints about the primary judge failing to inform him of various matters as to practice and procedure, not relying upon “fresh evidence” filed by him, and either failing to consider all of his uncontested evidence or relying upon irrelevant materials.

62    As to the first of these matters, it is well-established that it is not the function of the Court to give judicial advice to, or conduct the case on behalf of, a self-represented litigant: Bhagwanani v Martin [1999] SASC 406; 204 LSJS 449 (Bleby J); Clark v New South Wales (No 2) [2006] NSWSC 914 (Johnson J). That is not to say that, as indicated above, the Court does not have an obligation to ensure a fair trial and to take appropriate steps to ensure that a self-represented litigant has sufficient information about the practice and procedure of the Court, so far as is reasonably practicable for the purpose of ensuring a fair trial (or hearing): EBW21 at [38] (and the authorities there cited). Equally, however, as Markovic, Derrington and Anastassiou JJ observed in Flightdeck at [53]–[57], the Court must remain an “impartial adjudicator” and “the extent of the Court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon “the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”: citing Abram v Bank of New Zealand [1996] FCA 1650; ATPR 41–507 at 42,347. Mr Kitoko’s complaints in this regard must be viewed in the context of the fact that he has become well familiar with the practice and procedure of litigation having commenced multiple proceedings and, in any event, even a cursory examination of the transcript before the primary judge indicates that his Honour ensured that Mr Kitoko was afforded a fair hearing.

63    Mr Kitoko’s next complaint relates to reliance upon “fresh evidence” which appears to relate to a further affidavit dated 1 April 2021 that Mr Kitoko forwarded to the associate to the primary judge on the morning of the hearing which comprised four annexures and which Mr Kitoko asserted was further evidence of “conspiracy, unconsciousness conduct, and/or Negligence of the Respondents to causing damages against the Applicant do go towards establishing elements of pleaded cause of action in the present proceeding, and so are serious claims or issues that are substantiated and liable to be tried.” However, as the respondents pointed out, despite the late service of that evidence, Mr Kitoko was granted leave to rely on this evidence. Thus, on my impressionistic assessment, Mr Kitoko’s complaint about reliance upon “fresh evidence” is therefore without any sound basis.

64    Taking the above matters into account, based on my impressionistic assessment, I do not consider that Mr Kitoko has sufficient prospects of establishing that the primary judgment is attended by doubt on the procedural fairness grounds asserted by him. I am not satisfied that these matters outweigh against the inordinate and unexplained delay, and associated prejudice, in question here.

6.3.2    The Bias Grounds

65    Mr Kitoko alleges that there was actual bias on the part of the primary judge or, alternatively, conduct that gave rise to a reasonable apprehension of bias.

66    Mr Kitoko submits that bias on these grounds is made out because the primary judge demonstrated “prejudgment”, refused to adjourn the hearing and dismissed his applications without affording him the opportunity to refer to relevant evidence or make submissions.

67    Actual bias requires proof that the primary judge prejudged the issues and could not be swayed by the evidence at hand such that the primary judge was so committed, by prejudgment, that the conclusion formed was incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] (Gleeson CJ and Gummow J). Apprehended bias requires (a) the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits and (b) an identification of the logical connection between the matter and the feared deviation from a course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

68    On my reasonably impressionistic assessment, I am not satisfied that the bias grounds enjoy sufficient prospects in establishing that the primary judge’s orders are attended by doubt. As set out above, the primary judge’s reasons demonstrate a considered assessment of all of the materials before his Honour in light of the complicated and lengthy history of the many proceedings that Mr Kitoko has instituted in various courts and tribunals. Further, as also noted above, my review of the transcript of the hearing before the primary judge demonstrates that Mr Kitoko was given an ample opportunity to be heard on the respondents’ interlocutory applications and in support of his own applications.

6.3.3    Errors of fact and law

69    Mr Kitoko’s final set of proposed grounds of appeal allege that the primary judge made errors of fact and law in dismissing his interlocutory application for summary judgment and in entering summary judgment in favour of each of the respondents. As best as can be discerned from the Draft Notice of Appeal, Mr Kitoko alleges that the primary judge:

(a)    failed “to identify and apply correct factual materials” in relation to the misleading and deceptive conduct claims;

(b)    should have found that UTS had engaged in misleading and deceptive conduct via representations said to have been made by Professor Nguyen before Mr Kitoko commenced his studies;

(c)    erred in summarily dismissing his claims for “tortious deceit” on the basis that the primary judge should have found that not only did UTS engage in misleading and deceptive conduct but, because Professor Nguyen “had knowledge of the falsity of what he represented”, the same facts also gave rise to liability in tort;

(d)    erred in summarily dismissing his unconscionable conduct claim on the basis that the primary judge failed to “identify and apply correct factual materials” and failed to apply the correct principles of law in connection with Mr Kitoko’s statutory unconscionable conduct claims;

(e)    erred in summarily dismissing his fiduciary duty claims on the basis that the primary judge:

(i)    misunderstood or misconstrued Mr Kitoko’s factual allegations and/or evidence in relation to the breach of fiduciary duty claims against the UTS parties; and

(ii)    failed to apply the correct principles of law in relation to the fiduciary duty claims;

(f)    erred in summarily dismissing his claims in negligence on the basis that the primary judge:

(i)    misunderstood or misconstrued the facts and/or evidence in relation to the claims of negligence against the UTS parties; and

(ii)    applied the wrong principles of law in relation to the negligence claims;

(g)    erred because Judge Nicholls’s judgment in the FCCA Proceedings was final only for the purposes of s 46PO of the Australian Human Rights Commission Act 1986 (Cth) and the substantive provisions of the anti-discrimination legislation, but was not final or determinative of his other claims based on distinct causes of action that he was now pursuing;

(h)    erred because the claims advanced were not the same questions which had been “necessarily and directly decided” in the previous proceedings in other courts and they were merely “subsidiary or collateral” or “co-existent and not exclusive”; and

(i)    erred because the parties to the proceedings in this Court were not the same as (or privies of) the parties to the other proceedings from which the various estoppels arose.

70    It is unnecessary for me to descend into a granular assessment of the merits of each of these contentions. It is sufficient for me to state that Mr Kitoko’s proposed grounds of appeal fail to engage with the primary judge’s carefully considered reasons which explicate the principles of issue estoppel, Anshun estoppel and abuse of process and the application of those principles in the face of the causes of action which Mr Kitoko sought to advance. As the primary judge methodically pointed out, the claims that Mr Kitoko sought to advance were ones in respect of which there had been earlier adjudication as to the same or similar factual controversies, though as part and parcel of different causes of action that were pressed. That gave rise to an abuse of process or an Anshun estoppel in circumstances where the claims that Mr Kitoko sought to advance were inextricably bound up with the factual and legal controversies he had advanced in earlier proceedings. It was no impediment to the flexible operation of the principles of abuse of process or Anshun estoppel that not all of the respondents were privies to the earlier proceedings. On my impressionistic assessment, I do not discern any error of principle or fact in the primary judge’s assessment of those matters.

71    I am not satisfied that these proposed grounds of appeal enjoy sufficient prospects of success so as to outweigh the inordinate and unexplained delay and the associated prejudice that has arisen in the present case.

6.4    The interests of justice do not favour the grant of an extension of time

72    Ultimately, in balancing the various relevant factors, the overarching consideration is what is in the interests of the administration of justice. I am not satisfied that the interests of justice weigh in favour of the grant of an extension of time. That is because the delay is extensive and unexplained, and gives rise to prejudice to the respondents. Further, it is not a case where I am satisfied, on my impressionistic assessment as to Mr Kitoko’s proposed grounds of appeal that he has sufficient (or any) prospects of success in seeking leave to appeal, that would outweigh the inordinate and unexplained delay and its associated prejudice.

7.    DISPOSITION

73    For the above reasons, Mr Kitoko’s application for an extension of time should be dismissed, Mr Kitoko should pay the respondents’ costs as agreed or assessed.

8.    OPPORTUNITY TO BE HEARD AS TO ORDERS UNDER SECTION 37AO OF THE FCA ACT

74    As will be evident from [23] to [40] above, Mr Kitoko has commenced some 11 proceedings which in one way or another relate to the matters set out in [2] above (ie, the Broadway Incident and the discontinuance of his PhD candidature from UTS). These are the proceedings which have been identified as Proceedings 1 through to Proceedings 11. Mr Kitoko has not had any favourable outcome in any of these proceedings.

75    In addition, Mr Kitoko has also commenced (or was otherwise involved in) many other proceedings. By way of summary:

(a)    on 1 July 2022, the Federal Circuit and Family Court of Australia (Division 2) made orders pursuant to s 486F of the Migration Act 1958 (Cth) requiring Mr Kitoko to pay the costs of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs by reason of Mr Kitoko contravening the prohibition against encouraging a litigant to commence or continue migration litigation that lacks reasonable prospects of success: Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 525 (Judge Laing) (Proceedings 12);

(b)    on 19 October 2022, Mr Kitoko applied for an extension of time to appeal from the costs order made against him in Proceedings 12. This application was heard by Katzmann J. On 9 February 2023, Katzmann J dismissed Mr Kitoko’s application and ordered that he pay the Minister’s costs: Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75 at [48] (Katzmann J) (Proceedings 13);

(c)    on 2 November 2022, Mr Kitoko commenced proceedings in the District Court (Proceedings 14) in which, amongst other things, he made allegations of medical negligence and tortious conspiracy against five defendants, each of whom is named as a respondent to the SLHD proceedings (NSD 1595 of 2024) including the seventh and eighth respondents in the present proceedings;

(d)    on 16 November 2022, Mr Kitoko commenced proceedings in this Court (NSD 997 of 2022) (Proceedings 15) in which he made essentially the same claims as in Proceedings 14 and as against the same defendants. Mr Kitoko discontinued the proceedings on 31 March 2023;

(e)    on 21 February 2023, Mr Kitoko filed an interlocutory application seeking orders settings aside the orders of Katzmann J in Proceedings 13 and remitting the application for an extension of time to a different judge of this Court (Proceedings 16). Amongst other things, Mr Kitoko alleged apprehended bias and that he had been denied procedural fairness. On 24 February 2023, a Registrar of this Court refused to accept the interlocutory application for filing pursuant to r 2.26 of the FC Rules on the ground that they were an abuse of process because they sought to set aside a judgment made by a single judge exercising the appellate jurisdiction of the Court (First Filing Refusal Decision);

(f)    on 20 March 2023, Mr Kitoko filed an originating application seeking judicial review of the First Filing Refusal Decision. This application was heard and dismissed on 7 September 2023: Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056 at [44], [50] (Halley J) (Proceedings 17). In coming to this conclusion, Halley J reasoned that Mr Kitoko’s interlocutory application had been lodged for filing after the orders of the appellate judge had been entered and that his application was therefore an abuse of process as the appellate jurisdiction of the Court had already been exhausted by the operation of r 39.04 of the FC Rules, which provides that the Court “may vary or set aside a judgment or order before it has been entered” (emphasis added);

(g)    on 5 October 2023, Mr Kitoko lodged a notice of appeal seeking to challenge the decision of Halley J in Proceedings 17 (Proceedings 18);

(h)    on 20 March 2023, the proceedings commenced in the District Court (Proceedings 14) were transferred to the Supreme Court and, on 7 August 2023, were summarily dismissed: Kitoko v Sydney Local Health District [2023] NSWSC 898 (Fagan J);

(i)    on 7 November 2023, Mr Kitoko filed a summons seeking leave to appeal from the decision of Fagan J to dismiss Proceedings 14. On 12 March 2024, the Court of Appeal dismissed this summons: see Kitoko v Sydney Local Health District [2024] NSWCA 49 (Ward P and Gleeson JA) (Proceedings 19). As will be addressed below, Mr Kitoko subsequently applied to the High Court for special leave to appeal from this decision;

(j)    on 20 February 2024, the Full Court allowed Mr Kitoko’s appeal in Proceedings 18 on a narrow and technical point of law: Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14 (Thawley, Cheeseman and Shariff JJ). In determining the appeal, the Full Court identified that, absent a direction under r 39.34 of the FC Rules, r 39.32(3) has the effect that an order is taken to be entered on the 14th day after the day the order was authenticated. Given no such direction had been made, the orders of Katzmann J in Proceedings 13 were taken to have been entered after Mr Kitoko had lodged his interlocutory application seeking to challenge those orders. As a result, the Full Court concluded that the interlocutory application was lodged within the narrow window of continued appellate jurisdiction and was therefore not an abuse of process;

(k)    following the Full Court’s decision, Proceedings 16 were then allocated to a different judge of this Court and, on 21 June 2024, the proceedings were dismissed for reasons including that Mr Kitoko had not substantiated his allegations concerning apparent bias and procedural fairness such that there was no reason to revisit the orders of Katzmann J in Proceedings 13: Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 4) [2024] FCA 675 (Burley J);

(l)    on 4 July 2024, Mr Kitoko lodged an application for leave to appeal from the judgment of Burley J in Proceedings 16. On 10 July 2024, a Registrar of this Court refused to accept the relevant documents for filing on the basis that the appellate jurisdiction of the Court had been exhausted (Second Filing Refusal Decision);

(m)    on 1 August 2024, Mr Kitoko filed an originating application seeking judicial review of the Second Filing Refusal Decision (Proceedings 20);

(n)    on 6 September 2024, the High Court refused Mr Kitoko’s special leave application in respect of the decision of the Court of Appeal in Proceedings 19: Kitoko v Sydney Local Health District "SLHD" ABN 17 520 269 052 & Ors [2024] HCASL 210 (Edelman and Jagot JJ) (Proceedings 21);

(o)    on 26 September 2024, Mr Kitoko’s application for judicial review in Proceedings 20 concerning the Second Filing Refusal Decision was dismissed: Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1119 (Nicholas J); and

(p)    on 25 October 2024, Mr Kitoko filed a notice of appeal seeking to challenge the decision of Nicholas J in Proceedings 20. This application was dismissed by the Full Court on 2 April 2025: Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2025] FCAFC 41 (SC Derrington, Neskovcin and Vandongen JJ) (Proceedings 22).

76    In addition to the above, Mr Kitoko has now been unsuccessful in these proceedings (Proceedings 23) and the separate proceedings NSD 1595 of 2024: Kitoko v Sydney Local Health District [2025] FCA 914 (Proceedings 24).

77    Other than in Proceedings 18, where Mr Kitoko was successful on a narrow and technical point of law concerning the operation of a new rule, Mr Kitoko has been resoundingly unsuccessful in every one of the abovementioned proceedings that he has commenced in various courts and tribunals. Even in Proceedings 18, Mr Kitoko was ultimately unsuccessful when his substantive application was remitted and determined by Burley J (Proceedings 16), as were his subsequent attempts to challenge the decision of Burley J (Proceedings 20 and 22).

78    Section 37AO of the FCA Act empowers the Court to make a “vexatious proceedings order” against a person. And, s 37AO(3) specifically empowers the Court to do so at its own initiative. The making of such an order has the result that the person is precluded from instituting proceedings without the leave of the Court by reason of ss 37AO(2)(b) and 37AQ(1)(a).

79    Section 37AO(4) provides that the Court must not make an order under s 37AO(2) without hearing the person or giving the person an opportunity of being heard.

80    Although the making of orders under s 37AO may be regarded as an extreme step, their purpose is “not to bar vexatious litigants from instituting proceedings entirely or to impose punishment but to place prospective litigation under the control of the Court to protect the Court’s processes against unwarranted usurpations of its limited resources”: AZO24 at [133] (Raper J; Wigney and Lee JJ agreeing) citing Storry v Parkyn [2024] FCAFC 67 at [39] (Lee, Feutrill and Jackman JJ).

81    I have not formed any view, let alone made any decision, as to whether orders under s 37AO are appropriate and, if so, which orders. The fact that Mr Kitoko has been unsuccessful in 23 of 24 proceedings (and was ultimately unsuccessful in the substance of the one proceeding in which he found success on a technical point on appeal) is a matter which I consider warrants him being heard as to whether any such orders should be made. In those circumstances, I consider it appropriate to order that:

(a)    on or by 8 September 2025, Mr Kitoko file any affidavits and submissions as to whether any orders should be made under s 37AO of the FCA Act, with any submissions being of no more than 20 pages in length; and

(b)    the question as to whether the Court should make any orders under s 37AO of the FCA Act be listed for hearing at a time convenient to the Court and Mr Kitoko after 8 September 2025.

82    For the purpose of paragraph (a), Mr Kitoko should proceed on the basis that the Court may consider any one or more of the types of orders specified in ss 37AO(2)(a) and (b) and that for the purpose of s 37AO(2)(c), the Court may consider making an order of the type contemplated in AZO24 at [136] being that Mr Kitoko:

(a)    be prohibited from continuing any current proceedings in this Court without making an application for leave to continue them;

(b)    be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act; and

(c)    at the time of filing any application pursuant to s 37AR of the FCA Act, or any other application, must pay the sum of $200 to the Registrar as security for costs, to be held by the Court in a non-interest-bearing account.

Associate:

Dated:    8 August 2025

SCHEDULE OF PARTIES