The decision of the NSW Supreme Court in Kitoko v Sydney Local Health District  NSWSC 898 (Kitoko), handed down by Justice Fagan on 7 August 2023, is a timely reminder of the importance of taking a strategic approach to managing claims made against health care providers by both vexatious and self-represented litigants.
In the case of Kitoko, the health care respondents successfully applied to the Court to summarily dismiss medical negligence claims made against them. The facts of the case are rather extreme, but the principles involved and the approach taken are important for hospitals to consider when defending claims made against them by vexatious litigants.
- Health care providers and their insurers must take a strategic approach to managing claims made by both vexatious and self-represented litigants.
- Vexatious litigants aren’t always self-represented, and self-represented litigants aren’t always vexatious.
- Health care providers and insurers should have clear policies and guidelines in place to follow when dealing with both self-represented and vexatious litigants.
A vexatious litigant is someone who repeatedly 'demonstrates particular behaviours in the pursuance of legal actions through the courts. These behaviours include taking legal action without any reasonable grounds, a repetition of arguments which have already been rejected, disregard for the court’s practices and rulings, and persistent attempts to abuse the court’s processes' (Explanatory notes of the Vexatious Proceedings Bill 2005 (Qld), followed in Cooper v Mbuzi  QSC 105).
A self-represented litigant is a party who does not have the benefit of legal representation. Not all litigation involving self-represented litigants is 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.
Mr Kitoko, a self-represented plaintiff brought proceedings against the Sydney Local Health District (Canterbury Public Hospital), South Western Sydney Local Health District (St George Public Hospital) as well as the chief health officer and a medical officer of the Canterbury Hospital and a medical officer of the St George Hospital.
The plaintiff made allegations of medical negligence and the tort of conspiracy. The plaintiff claimed that doctors at the Canterbury Hospital 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. He also alleged that doctors at the St George Hospital had performed a colonoscopy right ureteroscopy, insertion of right ureteric stent, performed neuro-physio tests and otherwise physically and sexually assaulted him when he was unconscious and did not consent to any of these medical procedures. Mr Kitoko alleged that the motivation behind the unlawful and sub-standard treatment was a conspiracy with a politician, a real estate company and a university to get retribution against the plaintiff by ‘blacklisting’ him from receiving treatment.
The plaintiff, who previously worked as a process worker, labourer and taxi driver sought damages for future economic loss of approximately $11 million which would have represented his earnings as a neurosurgeon (which he alleged he could no longer be). 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.
The decision at trial
The defendants’ notice of motion filed 3 May 2023 sought summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules (UCPR) on the ground that they are incapable of being substantiated by evidence, they are frivolous, vexatious and an abuse of process.
Alternatively, the defendants 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 s67 of the Civil Procedure Act 2005 (NSW), on the basis that it was an abuse of process.
Justice Fagan noted that the plaintiff had a long history of unsuccessful prosecutions in court, including many previous allegations using the tort of conspiracy. The judge described his previous activities as being 'characterised by lack of realism or judgement' (at ).
The defendants’ application for summary dismissal due to the matter being frivolous and vexatious was granted, and cost orders were made in their favour. The conspiracy allegations were incapable of being substantiated because there was no evidence of an agreement between the defendants to injure the plaintiff and no evidence of acts which caused a pecuniary loss to the plaintiff.
The medical records presented by the Hospitals indicated that Mr Kitoko presented complaining of lower abdomen pain, was assessed and appropriately treated for kidney stones. When discharged from Canterbury Hospital , the patient was referred for further testing and given appropriate advice. The medical records ultimately indicated '…that he received full treatment of the condition with which he presented…' (at ). Regarding the alleged assaults at St George Hospital, medical records and police investigation records indicated that the events did not occur. Furthermore, an expert’s report was not provided by Mr Kitoko to confirm that there was medical negligence, as is required under the Uniform Civil Procedure Rules 2005 (NSW) r 31.36. As a result, the court allowed the defendants’ application for summary dismissal of all claims.
The Court turned its attention to whether the Vexatious Proceedings Act 2008 (NSW) (the Act) should be enlivened to address the unnecessary costs incurred by the defendants in such an ill-founded proceeding. Under section 6(c) of the Act, the court would have to be satisfied that the plaintiff has initiated proceedings 'without reasonable grounds' and that, pursuant to section 8, he has done so 'frequently'. His Honour commented that the pre-requisite for frequency meant that the Act only provided a remedy for the mischief of vexatious proceedings after they had caused considerable time and expenditure in progressing the matter to a judicial determination. His Honour noted the provisions were 'unsatisfactory' (at ) and there was 'no utility in taking any steps under that Act' (at ).
- Judgment for the defendants on the plaintiff’s claims pursuant to s13.4 of the Uniform Civil Procedure Rules.
- The plaintiff’s amended notice of motion filed on 24 May 2023 and his notice of motion filed on 25 July 2023 are dismissed.
- The plaintiff is to pay the defendants’ costs of the proceedings including the costs of all notices of motion.
- Leave is granted to the defendants to apply for a specified gross sum costs assessment pursuant to s98(4)(c) of the Civil Procedure Act 2005 (NSW) by serving upon the plaintiff and delivering to the Associate to Fagan J, by 11 August 2023, a written submission confirming that a specified gross sum is sought and explaining the basis of calculation of the amount claimed, together with an affidavit substantiating the costs incurred.
- In the event of an application by the defendants for a specified gross sum being lodged with the Associate and served upon the plaintiff, the plaintiff may respond with written submissions and affidavit evidence, to be served upon defendants and delivered to the Associate by 25 August 2023.
- Any application for a specified gross sum of costs will be determined on the papers.
The case illustrates the way in which defendants might dispose of a vexatious or unmeritorious claim as soon as possible. To allow such claims to run and to defend them often involves considerable time and money being spent, as well as the unmeasurable emotional stress and reputational damage inflicted on doctors and administrators by responding to and trying to defend baseless, inflammatory and often defamatory allegations.
Guidelines for dealing with vexatious litigants should be in place and closely followed when these types of claims arise.
Justice Fagan commented that vexatious proceedings against the Hospitals incurred considerable legal fees and the costs '…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' (at ). This was noted to ultimately be of detriment to the community.
In cases involving self-represented litigants that are not vexatious, hospitals should provide assistance where required to enable the efficient disposition of litigation without necessarily damaging their own self-interests. While a defendant ought not run the plaintiff’s case for them, to provide them with some direction and information will ultimately be to the benefit of both parties. This is particularly important for public hospitals who are expected to act in accordance with model litigant principles.
A self-represented litigant should be encouraged to obtain legal representation.
Guidelines for dealing with self-represented litigants should also be formulated with care and closely followed.