Kitoko v Sydney Local Health District [2023] NSWSC 898

Supreme Court New South Wales

Medium Neutral Citation: Kitoko v Sydney Local Health District [2023] NSWSC 898 Hearing dates: 26 July 2023 Date of orders: 7 August 2023 Decision date: 07 August 2023 Jurisdiction: Common Law Before: Fagan J Decision: (1) Judgment for the defendants on the plaintiff's claims pursuant to s 13.4 of the Uniform Civil Procedure Rules. (2) The plaintiff's amended notice of motion filed on 24 May 2023 and his notice of motion filed on 25 July 2023 are dismissed. (3) The plaintiff is to pay the defendants' costs of the proceedings in the District Court and in this Court including the costs of all notices of motion. (4) Leave is granted to the defendants to apply for a specified gross sum costs assessment pursuant to s 98(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. (5) 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. (6) Note that any application for a specified gross sum of costs will be determined on the papers. Catchwords: TORTS — negligence — medical negligence — alleged breach of common law duties with respect to hospital advice and treatment — summary dismissal – no challenge to hospital records contradicting claim – no expert medical opinion served with statement of claim contrary to r 31.36 of the Uniform Civil Procedure Rules — claim incapable of substantiation by evidence — bald assertions in pleadings and affidavits – claim dismissed TORTS — economic torts — conspiracy — summary dismissal — deficient pleading — failure to plead essential element — elements of offence refuted by unchallenged hospital records — claim summarily dismissed CIVIL PROCEDURE — opposing applications for summary judgment and summary dismissal — no real question to be tried — plaintiff's factual allegations incapable of being established at trial in face of unchallenged hospital records — proceedings dismissed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules Vexatious Proceedings Act 2008 (NSW) Cases Cited: Ansett Transport Industries (Operations) Pty Ltd v Australian Federation Of Air Pilots (No 2) [1991] 2 VR 636 Ballard v Multiplex Ltd [2008] NSWSC 1019 Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152 Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305 Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201 Kitoko v Sydney Local Health District [2017] NSWCATAD 209 Kitoko v Sydney Local Health District [2018] NSWCATAP 38 Kitoko v Sydney Local Health District [2018] NSWSC 1461 Kitoko v University of Technology Sydney [2018] FCCA 699 Kitoko v University of Technology Sydney [2018] NSWSC 1007 Kitoko v University of Technology Sydney [2019] NSWSC 1437 Kitoko v University of Technology Sydney [2021] FCA 360 Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159 Lonrho Plc v Fayed [1992] 1 AC 448 McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 McKernan v Fraser (1931) 46 CLR 343; [1931] HCA 54 Mohareb v Palmer (No 2) [2020] NSWCA 324 Palmer v Mohareb [2019] NSWSC 975 Viavattene v Attorney General (NSW) [2015] NSWCA 44 Williams v Hursey (1959) 103 CLR 30; [1959] HCA 51 Category: Procedural rulings Parties: Vangu Kitoko (plaintiff) Sydney Local Health District (first defendant) Teresa Anderson (second defendant) Fatima Santiago Pioquinto (third defendant) South Western Sydney Local Health District (fourth defendant) David Qui (fifth defendant) Representation: Counsel: Vangu Kitoko (self-represented plaintiff) R Perla (defendants)