Kitoko v Sydney Local Health District: Vexatious claims against healthcare providers

The right for litigants to take legal action without engaging potentially costly legal representatives is fundamental to promoting access to justice within the court system. While there is some evidence that self-represented litigants are less likely to settle claims and may require longer hearings and more hearings,¹ the additional utilisation of public resources necessary to facilitate this is generally considered necessary and acceptable in order to promote access to justice. However, a litigant’s ability to freely access justice must be balanced against the appropriate use of litigation processes and the limited resources of the courts in circumstances where a self-represented litigant insists on bringing vexatious or querulous proceedings.²

This article was originally published in the Lexis Nexis Health Law Bulletin Volume 31 No 9.

Background

A litigant continuing to press claims which have no prospect of success can lead to a substantial drain on the limited public resources of the courts. Where these claims are brought against public hospitals or education institutions, the burden on public resources is exacerbated substantially.

The aim of the Vexatious Proceedings Act 2008 (NSW) (VP Act) and the equivalent interstate legislation is to prevent the waste of public resources, the harassment of defendants in litigation, and the incurring of unnecessary costs.³ However, the recent case of Kitoko v Sydney Local Health District [2023] NSWSC 898, BC202310858, (Kitoko), in which the health care respondents successfully applied to the NSW Supreme Court, (the Court) to summarily dismiss the medical negligence claims made against them, demonstrates how the retrospective operation of the vexatious proceedings legislation does not effectively protect respondents from incurring extensive costs in vexatious proceedings.

While acknowledging that 'the overall effect of the plaintiff’s litigious activity has been to inflict significant loss on public institutions — the University, the hospitals and the courts — to the detriment of the community,'⁴ Justice Fagan concluded that there was 'no utility' in taking any step under the Vexatious Proceedings Act. The case also highlights the limited cost-effective avenues available to health care respondents to respond to vexatious claims.

Legislative framework for declaring a vexatious litigant

A vexatious litigant is, generally, 'a person who frequently and persistently seeks to commence legal action without reasonable grounds or for improper purposes'.⁵ Court proceedings may be considered vexatious proceedings if they are:

1. an abuse of the process of a court or tribunal;
2. instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
3. instituted or pursued without reasonable ground; or
4. conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.⁶

The VP Act sets out a mechanism for managing and preventing vexatious proceedings. Pursuant to s 8(a) of the VP Act, a court may make a vexatious proceedings order in relation to a person if it is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australia.⁷

Vexatious proceedings orders may include orders staying all or part of any court proceedings already instituted by the person, prohibiting the person from instituting new proceedings without the leave of the court, or any other order that the court considers appropriate.⁸ The ultimate effect of a vexatious litigant order is to prevent any further unmeritorious litigation from being commenced while allowing the person to obtain leave to commence a new proceeding if it is not vexatious.

Orders may be made on a court’s own motion or on the application of the Attorney-General, the Solicitor-General, a person against or in relation to whom another person has instituted or conducted vexatious proceedings, or a person who has a sufficient interest in the matter.⁹

Kitoko v Sydney Local Health District [2023] NSWSC 898

Facts

Mr Kitoko, a self-represented plaintiff, brought proceedings against the Sydney Local Health District (Canterbury Public Hospital), the Chief Executive Officer and a medical officer employed at the Canterbury Hospital, the South Western Sydney Local Health District (St George Public Hospital), and a junior medical officer employed at the St George Public Hospital.

The plaintiff made allegations of medical negligence and the tort of conspiracy. The plaintiff claimed that doctors at the Canterbury Public Hospital, on or around 21 March 2021, identified that he suffered from kidney failure, refused to give him information about his condition, and discharged him without treatment or warning, particularly with respect to his low potassium levels.¹⁰ He also alleged that doctors at the St George Public Hospital, in March and April 2021, had performed a cystoscopy, right ureteroscopy, insertion of right ureteric stent, performed neuro-physio tests and otherwise physically and sexually assaulted him when he was unconscious and that he did not consent to any of these medical procedures.¹¹

The plaintiff alleged that the motivation behind the unlawful and sub-standard treatment was a conspiracy with a politician, a commercial property manager and a university to get retribution against the plaintiff by 'blacklisting' him from receiving treatment.¹²

The plaintiff, who previously worked as a process worker, labourer and taxi driver, sought damages for future economic loss of approximately $10.5 million which would have represented his earnings as a neurosurgeon (which he alleged he could no longer qualify to undertake training to become). Alternatively, he claimed that there were other professions which he could no longer pursue and resultant losses, namely a loss of approximately $4 million in lost earnings as a barrister or $3 million as a biomedical engineering academic.¹³

Decision in relation to the plaintiff’s claim

The plaintiff sought summary judgment pursuant to r 13.1 of the Uniform Civil Procedure Rules (UCPR) in relation to each of his allegations against the defendants.¹⁴ The defendants sought summary dismissal of the proceedings pursuant to r 13.4 of the UCPR on the ground that the proceedings were incapable of being substantiated by evidence, were frivolous, vexatious and an abuse of process. Alternatively, the defendants sought an order that the plaintiff’s pleading be struck out pursuant to r 14.28, or an order that his claim be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW), on the basis that it was an abuse of process.

In relation to the plaintiff’s claims of conspiracy against the defendants, Justice Fagan held that the plaintiff had adduced no evidence upon which the Court could be satisfied that there was a serious issue to go to trial on any of the elements of these torts, let alone that the plaintiff would inevitably substantiate the claim.¹⁵ Not only was there no allegation of pecuniary loss, there was no evidence of it.¹⁶ The plaintiff’s application for summary judgment was dismissed. The defendants’ application for summary dismissal was successful on the bases that the pleading was insufficient and that the hospital records tendered by the defendants refuted any allegation of execution of an agreement or pecuniary loss.¹⁷

In relation to the plaintiff’s claims of medical negligence against the Canterbury Public Hospital concerning an alleged failure to treat and advise with respect to kidney failure and low potassium levels, the plaintiff failed to plead or provide any evidence of injury or damage caused by this alleged negligence.¹⁸ Justice Fagan found that the defendant established that this claim was doomed and should be summarily dismissed on the bases that:

• It was incomplete, at the pleading level, with respect to causation of injury or damage.
• The undisputed Canterbury Hospital records showed that, on discharge, the plaintiff and 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.¹⁹

In relation to the plaintiff’s claims of medical negligence against the St George Public Hospital, Justice Fagan determined that all procedures performed on the plaintiff were done with his informed consent.²⁰ The lack of evidentiary basis for the alleged sexual assault was 'incurable',²¹ and the pleading contained no allegation of damage caused by the balance of the alleged tests if they did occur.²² All claims were summarily dismissed and costs were awarded in favour of the defendants.

Consideration of the Vexatious Proceedings Act 2008

Justice Fagan noted that the numerous proceedings commenced by the plaintiff in the 10 years spanning 2013 to November 2022 are likely to have cost the various defendants and respondents, collectively, in the order of $1 million in legal fees. Additionally, there would have been a considerable cost to the university and to the public hospitals of diverting senior staff from their usual duties to provide instructions for making answer to these numerous claims must have been considerable.²³

In those circumstances, although the defendants in this claim did not make an application for a vexatious proceedings order, Justice Fagan considered whether the current and potential future defendants might be assisted by a vexatious proceedings order made on the Court’s own motion. As section 8(a) of the VP Act requires a court to consider the frequency of a person’s vexatious proceedings, Justice Fagan considered the plaintiff’s extensive litigation history.

Plaintiff’s history of failed claims

The plaintiff had an extensive history of unsuccessfully bringing proceedings over a period of 10 years, in which the plaintiff’s conduct was described as 'obtuse, persistent and unreasoning'.²⁴ These matters involved 'extravagant allegations of grave wrongdoing that have proved to be insupportable',²⁵ with Justice Fagan describing the plaintiff as having 'invariably advanced his allegations on the basis of bald assertion, with no evidence. At times he has done so in the face of concrete, objective contradiction'.²⁶ Specifically, these claims included:

• A claim for personal injuries allegedly sustained at the Broadway Shopping Centre which was dismissed on the basis that CCTV footage indicated that the plaintiff did not slip, but rather 'simply walked into the pane of glass'.²⁷ The plaintiff’s appeal to the Court of Appeal and application for special leave to the High Court of Australia were unsuccessful.²⁸
• A claim against his treating neurologist following the incident at the Broadway Shopping Centre regarding alleged breaches of the Anti-Discrimination Act 1977 (NSW). The claim was dismissed by the NSW Civil and Administrative Tribunal, and his subsequent appeals were unsuccessful.²⁹
• A claim in the Federal Circuit Court in which the plaintiff alleged that the termination of his enrolment as a PhD candidate was discriminatory and based upon alleged disabilities arising from the incident at the Broadway Shopping Centre. The plaintiff claimed that his supervisor at UTS had conspired with his treating practitioners and the manager of the Broadway Shopping Centre to discriminate against him and to 'victimise and humiliate' him. The claim, and the subsequent related claims and applications, were dismissed.³⁰

Vexatious proceedings order

Upon review of the plaintiff’s extensive history of failed litigation, Justice Fagan concluded that:

Despite feeling a responsibility to address the cumulative effect of what his Honour considered to be a 'barrage of misconceived, futile and publicly damaging litigation,'³² Justice Fagan noted that the only course available to a judge would be to invoke the provisions of the VP Act which he considered to be generally unsatisfactory.

As the VP Act is only engaged once a significant abuse of process has already occurred, Justice Fagan considered that the effect of hearing an application for a vexatious proceeding order often does no more than absorb further resources of the court and of already aggrieved parties.³³ In this regard, his Honour concluded that 'as a cure for defendants who find themselves facing repetitive unmeritorious claims in the courts, the VP Act often proves worse than the disease'.³⁴

Justice Fagan considered that there are many instances where applications for a vexatious proceeding order take on a life of their own (requiring substantial resources and sometimes more than one excursion to the Court of Appeal), largely due to judicial caution in exercising the power to order what has been described as 'extreme relief'³⁵ conferred by the VP Act.³⁶ As an example of such judicial caution, Justice Fagan referred to his Honour’s previous matter of Palmer v Mohareb [2019] NSWSC 975; BC201906906. In that matter, Justice Fagan concluded that the plaintiff had commenced ten proceedings against the defendant without reasonable cause. However, the Court of Appeal considered that only five of those proceedings answered the legislative description.³⁷

Justice Fagan appeared to be critical of the historical judicial reluctance to exercise the powers conferred by the VP Act. His Honour acknowledged that a vexatious proceedings order does, to some degree, limit the right of a citizen to call upon the Court to resolve a dispute.³⁸ However, his Honour posited that an order requiring a prospective self-represented litigant to obtain the leave of the court before commencing proceedings is merely a slight and reasonable constraint which, in practice, 'does little more than impose a vetting or filtering process equivalent to that to which other prospective plaintiffs are subject when they submit their prospective claims to the advice and representation of professional lawyers'.³⁹

Justice Fagan considered that, with an opportunity for pre-filing review, Mr Kitoko’s proceedings would never have commenced by reason of incomplete pleading of the conspiracy count and the absence of prima facie expert medical evidence.⁴⁰ However, as a measure that only applies after unfounded or harassing claims have been 'frequently' prosecuted, the VP Act engages too late to address the mischief caused by litigants like Mr Kitoko. His Honour ultimately concluded that, in circumstances where the defendants had already expended considerable resources responding to the plaintiff’s claims, there would be no utility in the Court making its own motion under the VP Act.⁴¹

Implications

As currently drafted, legislation governing vexatious proceedings only engages after a significant abuse of process has already occurred. Kitoko suggests that this legislation is of limited utility to defendants seeking to respond to a single (or even numerous) vexatious proceeding. This is unsurprising in circumstances where, in the 15-year history of the VP Act, only 51 litigants in New South Wales have been the subject of a vexatious proceedings order.⁴² The number of litigants subject to vexatious proceedings orders are substantially lower in other states.⁴³

Kitoko is a reminder that defendants should seek to dispose of a vexatious or unmeritorious claim as soon as possible. An application for summary dismissal, as successfully utilised by the defendants in Kitoko, remains the most effective mechanism for an early resolution of a vexatious claim. To allow such claims to run and to defend them often involves considerable time and money being spent, as well as the immeasurable emotional stress and reputational damage inflicted on doctors and administrators by responding to and trying to defend baseless, inflammatory and often defamatory allegations.

It is also necessary to bear in mind that many cases brought by self-represented litigants are not vexatious. To the contrary, the Queensland Court of Appeal reported in the 2021–2022 financial year that 23.1% of self-represented civil litigants were successful in their appeals.⁴⁴ In cases involving self-represented litigants that are not vexatious, hospitals should provide assistance where required to enable the efficient disposition of litigation without prejudicing their own interests. While a defendant ought not run the plaintiff’s case for them, to provide them with some direction and information to assist in the efficient administration of justice will ultimately be to the benefit of both parties and the court. This is particularly important for public hospitals who are expected to act in accordance with model litigant principles.

¹ The Australasian Institute of Judicial Administration Incorporated, The Impacts Of Self-Represented Litigants On Civil And Administrative Justice (Report, October 2018) 46, https://aija.org.au/wp-content....
² Justice Mullins, 'Vexatious Litigation — Dealing with Vexatious Litigants' (Speech, 2015) at [22], https://archive.sclqld.org.au/....
³ Explanatory Notes, Vexatious Proceedings Bill 2008 (NSW) 1. See also Vexatious Proceedings Act 2005 (Qld); Vexatious Proceedings Act 2006 (NT); Vexatious Proceedings Act 2011 (Tas); Vexatious Proceedings Act 2014 (Vic); Vexatious Proceedings Restriction Act 2002 (WA).
⁴ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858; [72].
⁵ Explanatory Notes, Vexatious Proceedings Bill 2008 (NSW) 1.
⁶ Vexatious Proceedings Act 2008 (NSW) s 6.
⁷ See also: Vexatious Proceedings Act 2005 (Qld) s 6(1); Vexatious Proceedings Act 2006 (NT) s 7(1); Vexatious Proceedings Act 2011 (Tas) s 6(1); Vexatious Proceedings Act 2014 (Vic) ss 17(1) and 31(1); Vexatious Proceedings Restriction Act 2002 (WA) s 4(1).
⁸ Vexatious Proceedings Act 2008 (NSW) s 8(7).
⁹ Vexatious Proceedings Act 2008 (NSW) s 8(4). See also: Vexatious Proceedings Act 2005 (Qld) s 5(1); Vexatious Proceedings Act 2006 (NT) s 7(6); Vexatious Proceedings Act 2011 (Tas) s 5(1) and s 6(3); Vexatious Proceedings Act 2014 (Vic) s 10(1) and s 16(1); Vexatious Proceedings Restriction Act 2002 (WA) s 4(2).
¹⁰ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [23].
¹¹ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [25]–[30].
¹² Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [5] and [6].
¹³ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [36].
¹⁴ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [3].
¹⁵ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [54].
¹⁶ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [54].
¹⁷ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [55].
¹⁸ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [57].
¹⁹ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [58].
²⁰ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [61].
²¹ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [62].
²² Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [67].
²³ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [71].
²⁴ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [9].
²⁵ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [9].
²⁶ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [9].
²⁷ Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152; BC201540223 at [25].
²⁸ Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201; BC201606787; Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305.
²⁹ Kitoko v Sydney Local Health District [2017] NSWCATAD 209; BC201705158; Kitoko v Sydney Local Health District [2018] NSWCATAP 38; BC201800419 Kitoko v Sydney ocal Health District [2018] NSWSC 1461; BC201810140.
³⁰ Kitoko v University of Technology Sydney [2018] FCCA 699; BC201802287; Kitoko v University of Technology Sydney [2018] FCA 1004; BC201805702; Kitoko v University of Technology Sydney [2018] NSWSC 1007; BC201805911; Kitoko v University of Technology Sydney [2019] NSWSC 1437; BC201909582; Kitoko v University of Technology Sydney [2021] FCA 360; BC202102731.
³¹ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [72].
³² Above.
³³ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [72].
³⁴ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [75].
³⁵ Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159; BC201109515 at [35].
³⁶ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [76].
³⁷ Mohareb v Palmer (No 2) [2020] NSWCA 324; BC202012324.
³⁸ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [76] citing Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159; BC201109515 at [35].
³⁹ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [76].
⁴⁰ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [79].
⁴¹ Kitoko v Sydney Local Health District [2023] NSWSC 898; BC202310858 at [80].
⁴² Supreme Court of New South Wales, 'Vexatious Proceedings', 16 October 2023, accessed 16 October 2023, www.supremecourt.nsw.gov.au/pr....
⁴³ Only 23 people in Queensland are the subject of vexatious proceedings orders. See Supreme Court of Queensland, 'List of Persons against whom a Vexatious Proceedings Order has been made pursuant to the Vexatious Proceedings Act 2005', 18 May 2021, accessed 16 October 2023, www.courts.qld.gov.au/__data/a....
⁴⁴ Supreme Court of Queensland, Annual Report 2021–2022, 28 October 2022, 22; www.courts.qld.gov.au/__data/a....