Supreme Court New South Wales Medium Neutral Citation: Kitoko v University of Technology Sydney [2018] NSWSC 1007 Hearing dates: 7 June 2018 Date of orders: 11 July 2018 Decision date: 11 July 2018 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The plaintiff's summons dated 1 October 2017 seeking judicial review is dismissed. (2) The plaintiff is to pay the defendant's costs on an ordinary basis. Catchwords: ADMINISTRATIVE LAW – judicial review- whether UTS breached their Student Rules – whether denial of procedural fairness PRACTICE AND PROCEDURE – summary dismissal- whether issue estoppel – whether factual basis of plaintiff's claims in these proceedings have already been determined adversely to the plaintiff in Federal Court proceedings- whether amendment to the summons can overcome the plaintiff's arguments that are subject to issue estoppel- whether plaintiff has an arguable case concerning breaches of the UTS Student Rules Legislation Cited: Disability Discrimination Act 1992 (Cth) Racial Discrimination Act 1975 (Cth) University of Technology Sydney Act 1989 (NSW) University of Technology Sydney By-law 2005 (NSW) Cases Cited: Blair v Curran (1939) 62 CLR 464 Carl Zeiss Stiftung v Rayner & Keller Ltd (No 2) [1967] 1 AC 853 Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152 Kitoko v University of Technology Sydney [2018] FCCA 699 Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201 Kuligowski v Metrobus (2004) 220 CLR 363 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Ramsay v Pigram (1968) 118 CLR 271 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Category: Principal judgment Parties: Vangu Kitoko (Plaintiff) University of Technology Sydney (Defendant) Representation: Counsel: A Flecknoe-Brown (Defendant) Solicitors: Self Represented (Plaintiff) Barry Nilsson Lawyers (Defendant) File Number(s): 2017/308342 Publication restriction: Nil Judgment 1. HER HONOUR: 2. By notice of motion filed 21 December 2017, the defendant now seeks an order that the proceedings be summarily dismissed. 3. The plaintiff is Vangu Kitoko. The defendant is the University of Technology Sydney ("UTS"). The plaintiff relied on his affidavits dated 12 October 2017. The defendant relied upon the affidavits of its solicitor Jack Feng Geng dated 23 October 2017 and 19 April 2018. 4. This matter first came before me on 9 March 2018. The plaintiff sought an adjournment on the basis that he had not received the defendant's bundles of material. The defendant submitted that it might be best if the matter be adjourned until the judgment had been handed down by the Federal Circuit Court in Vangu Kitoko v University of Technology Sydney (file number PSYG1158/2016). The matter was adjourned for hearing to 27 April 2018, costs were reserved. 5. On 26 April 2018 at 3.25 pm (the day before the hearing), the plaintiff emailed the registrar stating that due to a medical condition, he would like to postpone the hearing of notice of motion listed on 27 April 2018 and to consider the attached medical reports and arrange for the hearing to take place at a later time. 6. Attached to the plaintiff's email was a medical certificate from Dr Tarun Chauhan dated 26 April 2018 together with an Emergency Department discharge referral from Canterbury hospital that stated that the plaintiff attended on 24 April 2018 and was discharged that same day (Ex A, 27 April 2018). 7. On 27 April 2018, there was no appearance by the plaintiff. The hearing was adjourned to Thursday, 7 June 2018. The plaintiff was advised that if there was no appearance by him on that hearing date, the hearing may proceed in his absence. The costs were reserved. My associate emailed the plaintiff of these orders which the plaintiff acknowledged receipt. 8. On 7 June 2018, the hearing of the notice of motion took place. Mr Kitoko appeared self represented. The defendant was represented by Mr Flecknoe-Brown of counsel. Background 1. These proceedings arise out of events which occurred in the period 2010 to 2015, pertaining to or during the plaintiff's former enrolment as a student in a Doctor of Philosophy degree with UTS. That enrolment was discontinued by the defendant's decision which was notified to the plaintiff on 19 May 2015 (an internal appeal was dismissed on 7 August 2015). The plaintiff complained that UTS discriminated against him on the basis of race and disability. 2. On 8 June 2016, the plaintiff commenced proceedings in the Federal Circuit Court of Australia ("Federal Circuit Court"). On 12 May 2017, those proceedings were heard by Nicholls J. On 28 March 2018, the Federal Circuit Court handed down its decision in Kitoko v University of Technology Sydney [2018] FCCA 699 ("Kitoko"). 3. On the basis of those essential findings of fact, the Federal Circuit Court ultimately reached the conclusion that the principal claim in those proceedings with respect to breach of s 9 of the Racial Discrimination Act 1975 (Cth) was not made out. The Federal Circuit Court further found that there was no evidence to substantiate any of the additional claims with respect to ss 11, 17, 18C or 27 of the Racial Discrimination Act (at [226]-[238]), or ss 22 or 42 of the Disability Discrimination Act 1992 (Cth)(at [239]-[250]). The plaintiff's summons 1. The plaintiff's summons filed 12 October 2017 and grounds of judicial review are as follows: "1. The Plaintiff asks for the Supreme Court of NSW to issue an order, which will require the University of Technology Sydney (UTS) to set aside its decision dated 07 August 2015 discontinuing the Plaintiff's PHD candidature, and which will require the UTS to allow the conclusion of the Plaintiff's PHD study and then the Plaintiff to obtain the degree sought. Grounds 2. The Plaintiff considers to be aggrieved by the unfairness of the UTS decision. To the Supreme Court of NSW therefore to issue an order for equitable remedy in respect of the decision of any one or more of the following grounds: A. That a breach of the UTS code of practice for Supervisors, Advisors and Research Degree Students in connection with the Plaintiff's PHD candidature assessment and/or the review of progress. (Abandonment). B. That a breach of the UTS general rules in connection with the Plaintiff's PHD candidature assessment and/or the review of progress, and with the Plaintiff's PHD candidature discontinuation. (Discontinuation, breach of rules, procedural fairness). C. That the UTS decision in the Plaintiff's PHD discontinuation was induced/or affected by fraud, collusion and corruption." (Fraud, collusion and corruption). 1. Mr Kitoko set out his submissions in his affidavit dated 12 October 2017. I shall refer to them in more detail later in this judgment. Summary judgment 1. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 ("Spencer"). In Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application: 1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). 2. The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success. 1. Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]). 2. The defendant submitted that the current proceedings are subject to issue estoppel. It concedes that the plaintiff's argument concerning the UTS Student Rules may not be the subject of issue estoppel. However, it submitted that the argument on the topic of the UTS Students Rules has no prospects of success. 3. In order to ascertain whether there is an issue estoppel, it is necessary to reproduce and analyse, as briefly as I can, the issues decided by the Federal Circuit Court. Before I do, I should mention that in his oral submissions the plaintiff emphasised that he is not complaining about the Judge's opinions, as I understand it, because they are opinions and opinions can vary. His main complaint is that "It's a rule of the university. It's not an opinion or it's not my opinion or the opinion of a judge, no. You should go to the rule. It's there in the rule, …" (T21.9-11). The plaintiff submitted that the judge in his decision did not refer to the UTS Student Rules (T20.37) so he has come to this Court to review the UTS Student Rules (T21.3-4). The plaintiff also stated that as he does not agree with the judge's decision in the Federal Circuit Court he has sought an extension of time to lodge his appeal (Ex 1). It is listed for hearing on 25 June 2018. Issue estoppel 1. The interests of justice require that findings of fact made in previous proceedings must bind the same parties in subsequent proceedings. Relitigating those facts would be contrary to the principles of finality in litigation, would have the potential to cause serious prejudice to a party who is subjected to an unjustifiable multiplicity of litigation, and may amount to an abuse of process. 2. Such considerations of finality and fairness underlie the operation of the principle of issue estoppel, which is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies": see Blair v Curran (1939) 62 CLR 464 at 531. 3. The requirements for issue estoppel to arise are set out in Carl Zeiss Stiftung v Rayner & Keller Ltd (No 2) [1967] 1 AC 853 at 935: "(i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and, (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies." 1. In Ramsay v Pigram (1968) 118 CLR 271 at 276 ("Ramsay"), Barwick CJ encapsulated what was involved in answering that question by saying: "Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. …" 1. In Kuligowski v Metrobus (2004) 220 CLR 363 at [25] the High Court stated: "A "final" decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be "final and conclusive on the merits": "the cause of action must be extinguished by the decision which is said to create the estoppel"." 1. There is no question that the judgment of the Federal Circuit Court is a final and conclusive judgment on the merits, by a court exercising judicial power. The decision of the Federal Circuit Court is not an interlocutory decision. The fact that an appeal lies from a decision of the Federal Circuit Court to the Federal Court does not make the Federal Circuit Court's decision any less final. 2. Therefore, even though the plaintiff has filed an application to extend time in which to appeal in the Federal Court, this does not make that decision in the Federal Circuit Court any less final. The defendant's submissions 1. Counsel for the defendant submitted that the effect of the judgment is that it determines facts which are identical to the factual basis of each of the plaintiff's claims in these present proceedings, adversely to the plaintiff. By reference to the plaintiff's grounds as described in his summons (elaborated as they are in his affidavit of 12 October 2017), the facts have been determined in the following way: 1. The facts material to the plaintiff's first ground of review in his summons, namely that there was a breach of the UTS Supervisors' Code of Practice, have been determined (specifically, the asserted "abandonment" of the plaintiff did not occur). 2. The facts material to the plaintiff's second ground of review in his summons, namely that there was a contravention of the UTS Student Rules in relation to the assessment of his candidature and review of progress and subsequent discontinuation, have been determined. 3. The facts material to the plaintiff's claim that the defendant's decision to discontinue his candidature was induced or affected by "fraud, collusion and corruption" have been determined (namely, the asserted "fraud, collusion and corruption", as described at paragraphs 9 to 11 of the plaintiff's affidavit of 12 October 2017, did not occur). 1. All the underlying facts, as described in the plaintiff's summons and affidavits filed in these proceedings, have already been resolved, adversely to the plaintiff, and give rise to issue estoppel to that extent. The facts which the plaintiff asserts in relation to grounds 1 or 3 have been wholly rejected. That precludes any of those grounds from succeeding. 2. Only the plaintiff's characterisation of particular acts or decisions as contrary to the UTS Student Rules, for the purposes of the second ground, remains to be determined based on the Federal Circuit Court's findings about the facts of those acts and decisions. The grounds of review 1. I shall deal with each of the three grounds of judicial review 2A, 2B and 2C in turn and finally, address the issue of whether it is arguable that there has been a breach of the UTS Student Rules. Ground 2A – fraud, collusion and corruption – abandonment 1. This ground of judicial review is that the decision of UTS to discontinue the plaintiff's PHD candidature was induced by the breach of its own rules, fraud, collusion and corruption because Professor Nguyen was no longer the plaintiff's principal supervisor. On 21 August 2014, Professor Nguyen had abandoned the supervision of the plaintiff and had cut communications with him. (fraud, collusion and corruption due to abandonment). The plaintiff contends that this is a breach of Rules 2.2.2 and 2.2.11 of the Code of Practice for Supervisors Advisors and Research Degree Students and should be dealt with separately. (Code of Practice). Ground 2B – unsatisfactory progress and discontinuance 1. This ground of review is that on 7 August 2015, Professor Nguyen unfairly imposed two unsatisfactory progress reviews for the Autumn 2014 and Spring 2014 semesters and then unfairly imposed the UTS governance to discontinue the plaintiff's PHD candidature. 2. According to the plaintiff, the decision to discontinue him from his PHD candidature, based on Professor Nguyen's assessment and guidance is lacking in justice or fairness, since Professor Nguyen had abandoned his supervision with the plaintiff and cut communication with him for more than a year. Therefore, Professor Nguyen was not entitled to impose the progress of the plaintiff to study in Autumn 2014 and Spring 2014 as unsatisfactory as this was a breach of rules 2.2 and 2.11 of the Code of Practice. The plaintiff annexed a copy of the Code of Practice and a copy of the Rules of the University. Ground 2C – further alleged fraud, collusion and corruption arising out of the plaintiff's accident at Broadway 1. The plaintiff sued the Broadway Shopping Centre in the District Court. The plaintiff says that Mirvac's legal representative including Thompson Cooper Lawyers and a partner of DLA Piper worked in collaboration with his neurologist Dr George Lord at Concord hospital, the plaintiff's lawyer and his PHD supervisor, Professor Nguyen, to punish him. (further alleged fraud, collusion and corruption). The plaintiff's submissions/allegations in this current judicial review 1. I have extracted the plaintiff's version of events and submissions from his affidavit dated 12 October 2017. 2. On 1 January 2010, the plaintiff was enrolled as a PHD student in Biomedical Engineering in the Faculty of Engineering and Information Technologies at the University of Technology Sydney with Professor Hung T Nguyen as the main supervisor and senior lecturer Phuoc Huynh as the co-supervisor. The plaintiff annexed copies of the summary of PHD candidature, offer letter to PHD degree, UTS Doctoral Scholarship offer letter, 2010 Doctoral Scholarship acceptance advice and letter of acceptance. 3. On 5 October 2010 between 18:30-20:00 pm after finishing university, the plaintiff was involved in an accident on level 1 of the Mirvac Broadway shopping centre, and says that he suffered a brain aneurism, broken bones and compression of nerves in the neck and lower back. The plaintiff annexed a copy of his medical records. 4. The plaintiff says that on 16 December 2014, he had completed the thesis and submitted it to the GRS for external examination. On 15 May 2015, the plaintiff resubmitted the corrected thesis to the GRS as recommended by the responsible academic officer at the meeting dated 18 February 2015. As per UTS Student Rule 11.13.1 "an unsatisfactory progress shall not be imposed to the Deponent in Spring 2014, since the Deponent has submitted the thesis to the University." The plaintiff annexed copies of the notification of intention to submit form dated 27 October 2014, linked email correspondence and the statement form for submission of the HDR thesis for examination dated 16 December 2014. 5. According to the plaintiff, the Dean of the GRS had accepted, resubmitted and approved the thesis completion/production. The approval was made in accordance with s 5(c) of the 2010 Conditions of Award-UTS Doctoral Scholarship. 6. On 3 June 2015, the graduate research co-ordinator accepted the plaintiff's claim for $500 to proof read his thesis and paid the sum of $500 into his bank account. The plaintiff says that his bank statement transactions between 25 April 2015 and 24 June 2015 confirm that on 17 June 2015, the UTS's financial service credited the amount of $500 to his bank account. The plaintiff annexed copies of all documents, letters and bank statements. The plaintiff submitted that the approval of the thesis completion and the payment of the $500 into his bank account is substantial evidence that this Court should consider. It is not disputed that he was paid $500 but UTS says that this amount was paid to reimburse the plaintiff for the proof reading of his PHD. 7. On 7 August 2015, the plaintiff says that Professor Nguyen imposed two successive unsatisfactory reviews of progress on his PHD candidature for the Autumn 2014 and Spring 2014 semesters and then unfairly imposed to the UTS governance that his PHD candidature be discontinued. The plaintiff annexed letters dated 7 April 2015, 14 May 2015, 19 May 2015 and 7 August 2015 and the recommendation to discontinue his PHD candidature. 8. The plaintiff alleges that the Dean automatically dismissed/ignored the recommendation of the FEIT-ROA dated 14 May 2015. The plaintiff relied upon UTS Student Rule 17.7.4 and says that on 14 February 2017, UTS was unable to produce the minutes of the decision in accordance with the requirements of that rule. He alleges that the minutes dated 10 August 2015 are a falsification. He also says that UTS, after intense pressure by the registrar of the Federal Circuit Court at a directions hearing, produced a document which is a fraud. 9. The plaintiff submitted that apart from breaching the UTS Student Rules and fraud, UTS also colluded with Mirvac's network to take him out of the PHD study. 10. Further, the plaintiff alleges that Professor Nguyen used his mobile phone to track his (the plaintiff's) location inside or outside the UTS which were used in "placing/directing colleague feminine from UTS or feminine contracted by Mirvac outside the UTS witness and professional in photos and filming contracted by Mirvac to close the deponent, so sexual harassment could be claims once approached by the deponent." 11. The plaintiff also alleges that Professor Nguyen collaborated with senior lecturer, Ahmed Al-Ani (Centre for Health Technologies-UTS) and Associate Professor Mark Pickering (UNSW-Canberra) for the falsification of the CCTV footage of the accident suffered by him at Broadway shopping centre and that Professor Nguyen introduced Associate Professor Pickering to Mirvac's network. He says that a partner at DLA Piper contracted Associate Professor Pickering to use his expertise to falsify the CCTV footage of the alleged accident on 5 October 2010 and that DLA Piper used this falsified CCTV footage as evidence to win the compensation case in the District Court. He says that as a result of Mirvac refusing to settle for less, its lawyers colluded with Professor Nguyen to finally impose the UTS governance to make a montage of the letter confirming discontinuation of his PHD. As a result of this, Professor Nguyen was rewarded by Mirvac's network. Also the plaintiff says that Professor Nguyen's son has been offered a position in the neurosurgery department at Concord hospital and this is corruption. 12. The plaintiff says that he is aggrieved by the unfairness of the decision of UTS to breach its rules, commit fraud, collusion and corruption and this Court should therefore issue an order for equitable remedy, requiring UTS to set aside its decision dated 7 August 2015 and allow him to finalise his PHD studies. The Federal Circuit Court decision 1. On 28 March 2018, Judge Nicholls handed down his decision in Kitoko ('the judge"). His Honour dismissed the proceedings brought by the same plaintiff against the same defendant. That is to say, the same parties were involved in the Federal Circuit Court proceedings, Mr Kitoko as the plaintiff and the University of Technology Sydney as defendant. 2. The background findings of facts made by the judge are as follows. 3. In January 2010, Mr Kitoko was enrolled at UTS in a PHD. He studied in the Faculty of Engineering and Information Technology ("the Faculty") at UTS, and was awarded a UTS doctoral scholarship in the amount of $22,500 for a period of three years (until December 2012). Professor Hung Nguyen was Mr Kitoko's principal supervisor. Alleged accident at Broadway Shopping Centre 1. Mr Kitoko's evidence is that on 5 October 2010, he was involved in an accident at Broadway shopping centre, which resulted in injuries sustained by him ("the accident"). The shopping centre was, and is, owned by Mirvac Real Estate Group Pty Limited ("Mirvac"). Mr Kitoko commenced proceedings in the District Court of NSW in relation to the accident: see Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152. Judgment was given in favour of the defendants in those proceedings. Mr Kitoko appealed to the Court of Appeal of the Supreme Court: see Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201. He was unsuccessful and was refused leave to appeal to the High Court. Progress, extensions of time for his PHD candidature and meetings 1. Between January 2010 and June 2013 Professor Nguyen considered that Mr Kitoko was making satisfactory progress in relation to his research. Professor Nguyen recorded that satisfactory progress in a series of progress reports throughout that period. 2. In November of 2012 Mr Kitoko made an application for a six month extension of his PhD scholarship. This application was supported by Professor Nguyen. 3. In Mr Kitoko's "Spring 2013 Progress Report", Professor Nguyen recorded "conceded satisfactory progress". 4. By January 2014, Mr Kitoko's candidature had exceeded the maximum four year period for completing his PhD (pursuant to Rule 11.7.1(1) of the UTS Student Rules). 5. In March and June 2014, Mr Kitoko applied for extensions to his PhD candidature. These extensions were subsequently granted. 6. In Mr Kitoko's "Autumn 2014 Progress Report", Professor Nguyen expressed concerns regarding Mr Kitoko's research and recorded "unsatisfactory progress". Professor Nguyen recommended that Mr Kitoko take a leave of absence to allow him to gain additional time to finalise his thesis. Meeting on 13 August 2014 1. As a result of Mr Kitoko's "unsatisfactory progress", a meeting was organised by Associate Professor Abolhasan in his capacity as responsible academic officer. On 13 August 2014, the meeting took place. During the meeting, Mr Kitoko presented a draft thesis, submitted "two papers" and said that he had experienced an "issue around equipment, a sensor that he did not have". Associate Professor Abolhasan indicated that he would meet with Professor Nguyen to discuss the issues raised by Mr Kitoko. 2. On 15 August 2014, Professor Nguyen, Associate Professor Abolhasan and Ms Phyllis Agius (a UTS research administration officer), met to discuss Mr Kitoko's research progress. During the meeting, Professor Nguyen gave a detailed account of Mr Kitoko's progress, including that Mr Kitoko's research had "ceased to progress", that the final few chapters of the thesis were "lack[ing] original contribution", and that he thought it was unlikely that Mr Kitoko would finish his thesis "within the next six months". Professor Nguyen did not believe that a lack of equipment was causing Mr Kitoko's lack of research progress. It was unanimously agreed that a further meeting with Mr Kitoko was required. Meeting on 8 October 2014 1. On 8 October 2014, a meeting was held between Mr Kitoko, Professor Nguyen and Associate Professor Abolhasan. Mr Tim Kevin (research and development officer at UTS) was also present to take the minutes of the meeting. 2. The minutes of that meeting indicate that there was a discussion about the concerns Professor Nguyen and Associate Professor Abolhasan had about Mr Kitoko's research namely, absence of information regarding protocol, ethics clearance with relation to researching human subjects, experimental methodology and systems for obtaining data and classification of subjects with disability. 3. The minutes recorded the subsequent action to be taken as follows. 4. After discussing various options it was agreed that Vangu [Kitoko] will contact Mehran [Abolhasan], Hung [Nguyen] and Tim [Kevin] or Phyllis Agius in the next couple of weeks and provide a demonstration of the research system and methodology to Hung's satisfaction. He will also provide all necessary information around protocol, proof of ethics clearance and classification of disability for the people who participated in this research. 5. If the demonstration is satisfactory then Vangu [Kitoko] may proceed to a leave of absence option to allow him more time to complete (eg 6 months) and according to Hung's discretion appropriate arrangements may be made to help with access to facilities so that Vangu [Kitoko] can progress his candidature properly during this time. Events after 8 October 2014 1. On 12 December 2014, Associate Professor Abolhasan sent an email to Mr Kitoko in which he outlined that contrary to what had been agreed on 8 October 2014, Mr Kitoko had not provided the "demonstration of the research system and methodology" nor had he completed a "Spring 2014 Progress Report". 2. Mr Kitoko's evidence is that the UTS Student Rules (specifically, rule 11.13.1) did not require him to complete a Spring 2014 Progress Report. 3. On or around 18 December 2014, Mr Kitoko attempted to submit his thesis to the GRS for examination. However, the thesis did not include a Supervisor's Certificate from Professor Nguyen as required. 4. On 6 January 2015, an email was sent by Ms Angeli Lawah, engagement officer at the FEIT, to Associate Professor Abolhasan, copying in Professor Nguyen and Phyllis Agius, informing him that she had advised the GRS to mark Mr Kitoko's progress as "unsatisfactory", due to his failure to submit a Spring 2014 progress report. Meeting on 18 February 2015 1. On 18 February 2015, a further meeting was held between Mr Kitoko, Professor Nguyen, Associate Professor Abolhasan and Ms Aki Plume, Manager at the GRS. There was some dispute between the parties about what occurred at that meeting. In brief, Ms Plume explained that as Mr Kitoko had exceeded the maximum period for his PhD candidature, under the UTS Student Rules, Mr Kitoko had the option to seek a review of his thesis by the Dean of the GRS, or alternatively, the RAO could seek from the Dean of the GRS a further extension of Mr Kitoko's PhD candidature. 2. According to the minutes of that meeting, Mr Kitoko indicated that he did not have the necessary equipment to progress his research, and that he needed a particular type of "sensor" to allow him to test his results. Professor Nguyen asserted that he could arrange to provide Mr Kitoko with the required sensor if Mr Kitoko stated what he needed. Associate Professor Abolhasan asserted that this was Mr Kitoko's final opportunity. 3. At the meeting on 18 February 2015 the following outcomes were agreed upon: 1. MA [Associate Professor Abolhasan] will support a request of extension to GRS, and GRS will grant an extension (Aki [Ms Plume]). VK [Vangu Kitoko] will need to submit extension of candidature form with supporting documents. 2. MA [Associate Professor Abolhasan] advised VK [Mr Kitoko] to see Hung [Professor Nguyen] regularly. Hung [Professor Nguyen] agreed to see Vangu [Mr Kitoko] whenever he has something substantial to show, approx. every 3 or 4 weeks in Mehan's [Professor Abolhasan's] presence. 3. Vangu [Mr Kitoko] to source equipment this week and purchase it to the value of $2.000. 4. Vangu [Mr Kitoko] to conduct experiments. 5. Vangu [Mr Kitoko] to write up the results of these experiments in his thesis, with details of how it was done, revising chapters with data, showing the analysis. 6. PA [Ms Agius] to supply names of potential proof readers. 7. The above to be completed by the end of June 2015. No further extensions will be possible. 8. Vangu [Mr Kitoko] to collect his thesis from the GRS on 19th February 2015. Vangu [Mr Kitoko] exchanged his Mobile phone number with Aki [Ms Plume] for this purpose. Events after 18 February 2015 1. On 19 February 2015, Mr Kitoko requested the purchase of the relevant equipment ("the device"). By email on 26 February 2015, Mr Kitoko was informed that the relevant equipment had been purchased. There was some dispute between the parties as to who paid for the device (UTS or Professor Nguyen). There was also some dispute as to whether Mr Kitoko requested the device because Professor Nguyen had advised Mr Kitoko that he would require that particular device. Mr Kitoko collected the equipment on 4 March 2015. 2. On 13 March 2015, Mr Kitoko submitted an application to the Dean of the GRS for a further extension of his PhD candidature. 3. On 16 March 2015, Mr Kitoko sent an email to Professor Nguyen and Associate Professor Abolhasan, copying in Ms Plume and Ms Agius. The email was as follows: "…After considerable study, I would like to confirm that the device proposed in 2012 and purchased by the school few weeks ago (EPIC Sensor — Pressey Semiconductors) is for basic EEG experimental studies and does not meet the expectation of an advanced research study like my PHD (Optimizing recorded EEG signals using dry electrodes, compared simultaneously with wet electrodes). If you would like me to demonstrate it to you, I am happy to do so at anytime. In the meantime, I consider to improve the results on the classification of EEG as proposed by Professor Hung (Chap 4 and 5 of my thesis) and after, I will send the thesis for editing. As it will take few weeks or a month (maximum), I will put extension until 30 June 2015 and once everything will be ok I will resubmit the corrected version of my thesis to the GRS …" 1. On 17 March 2015, Professor Nguyen sent an email to Associate Professor Abolhasan noting that Mr Kitoko's email on 13 March 2015 was contrary to what had been agreed at the meeting on 18 February 2015. 2. Attempts were made by Ms Agius, on behalf of Associate Professor Abolhasan, between mid-March 2015 and early April 2015 to organise another meeting with Mr Kitoko. However, a meeting was unable to be scheduled as Mr Kitoko was unavailable. 3. On 7 April 2015, an email and a letter was sent to Mr Kitoko from UTS advising that his PhD candidature was under review and "may be discontinued". 4. On 15 April 2015, Mr Kitoko re-submitted his thesis to the GRS. 5. On 27 April 2015, a meeting was held between Mr Kitoko, Professor Nguyen, Associate Professor Abolhasan, Ms Lawah and Ms Lucy Jones (Director of the GRS). Mr Tim Kevin was also present to take notes. 6. On 4 May 2015, there was a further meeting which included Mr Kitoko, Associate Professor Abolhasan, Professor Nguyen and Ms Plume. Mr Tim Kevin was also present to take notes. The minutes are incorrectly dated 4 March 2015 but, in context, refer to the meeting of 4 May 2015. 7. 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 he had been warned to "back-up" the computer prior to the upgrade. 8. Also on 14 May 2015, Associate Professor Abolhasan wrote to the Dean of the GRS to recommend that Mr Kitoko's candidature be discontinued on four grounds. They are firstly, that the plaintiff had exceeded the maximum time for such candidature by one and a half years; secondly, he had received two successive unsatisfactory "Reviews of Progress"; thirdly, the plaintiff had produced a thesis that was not suitable for examination; and fourthly, the plaintiff had failed to produce necessary information to allow the thesis to be examined, despite the opportunity to do so, and had not provided a sufficient reason for this failure. The judge concluded that on the evidence now before his Court, all four reasons were reasonably available to Associate Professor Abolhasan. The plaintiff's appeal to UTS on his enrolment having been discontinued 1. On 19 May 2015, Mr Kitoko was sent a letter on behalf of the Dean of the GRS, advising that his enrolment had been discontinued. 2. By letter dated 5 June 2015 to the Dean of the GRS, Mr Kitoko appealed the decision to discontinue his enrolment. 3. On 7 August 2015, a letter was sent to Mr Kitoko from the Appeals Committee of the Academic Board of UTS ("the Committee"). The Committee stated that at a meeting of the Committee on 3 August 2015, it was decided that Mr Kitoko's appeal be dismissed. The ombudsman 1. On 12 August 2015, Mr Kitoko lodged a complaint with the NSW Ombudsman in relation to the decision. By letter dated 3 February 2016, the NSW Ombudsman advised Mr Kitoko that after some initial investigation into his complaint, no further action would be taken. Overall significant findings 1. On the basis of these background facts the Federal Court Circuit judge made overall significant findings on a number of issues relevant to this judicial review. 2. Firstly, the Appeals Committee endorsed the plaintiff's discontinuance by reason of his own failure to achieve satisfactory academic progress (at [192]). That was the result and reason recommended by the Responsible Academic Officer (Associate Professor Abolhasan), as subsequently set out in the letter from UTS to the plaintiff dated 7 August 2015. 3. Secondly, the $500 payment made by UTS to the plaintiff, to facilitate the proofreading of his draft thesis, did not substantiate the conclusion that the thesis had been accepted or approved for examination (at [134]-[147]). Furthermore, it was not disputed that when the plaintiff purportedly submitted his draft thesis to the GRS, it did not include a supervisor's certificate from Professor Nguyen, as required by the UTS Student Rules (at [28], [126]). 4. Thirdly, there was no evidence to substantiate the plaintiff's claim that the defendant had "falsified" the minutes of the Graduate Research Students Appeals Committee meeting of 3 August 2015 (at [237]). 5. Fourthly, Professor Nguyen was not responsible for (or to adopt the plaintiff's term, he did not "impose") the plaintiff's discontinuation or unsatisfactory progress reports in some "unfair" way (at [52], [103], [190]-[191]). Nor did Professor Nguyen "abandon" the plaintiff, as the plaintiff claims (at [82]-[85]). The plaintiff's discontinuance was because of his inability to achieve satisfactory progress, despite numerous opportunities, including a "fair and reasonable" opportunity to rectify deficiencies (at [189], [192], [203], [219]). 6. Finally, that there was no "collaboration" or "collusion" or conspiracy between Professor Nguyen and Mirvac or any other person (including Dr George Lord), such as the plaintiff had alleged; nor had the defendant's personnel taken any of the related actions the plaintiff alleged (eg "tracking" him via his mobile phone; placing a female "colleague" near him to contrive claims of sexual harassment; colluding with others to falsify evidence in the plaintiff's previous District Court proceeding; punishing him by discontinuing him on the same day as the verdict in the District Court proceedings; and being party to corruption by way of inducements provided to Professor Nguyen's son (at [72]-[77], [97]-[102], [188], [193]-[201]). Professor Nguyen's evidence was accepted ([60](1)). My conclusion on issue estoppel 1. 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 the plaintiff's accident at Broadway. 2. 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. That 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. 3. The last topic to be addressed is whether there have been breaches of the UTS Student Rules. While mention was made of some of the UTS Student Rules in the Federal Circuit Court, and some factual findings made, they were not finally determined. Breach of the UTS Student Rules 1. The UTS Student Rules are delegated legislation, authorised by s 29 of the University of Technology Sydney Act 1989 (NSW) and by-law 44 of the University of Technology Sydney By-law 2005 (NSW) (see also the permissible subject matter of the UTS Student Rules as set out in s 28 of the University of Technology Sydney Act: see s 28(m) and (q). 2. As I understand it, the plaintiff asserts that a contravention of one of the relevant provisions of the UTS Student Rules makes the decision to discontinue his enrolment, or else the decision to dismiss his appeal to the appeals committee, invalid and susceptible to equitable relief. 3. It is not altogether clear whether the plaintiff has specified every relevant provision of the UTS Student Rules which he says was breached. The only rule he has specified is UTS Student Rule 11.13.1, which relates to the submission of "progress reports". However, I have carefully read through the plaintiff's submissions and have set out the UTS Student Rules he refers to. These rules are often referred to without any explanation as to why they are appropriate. The UTS Student Rules 1. The parties referred to the following UTS Student Rules. 2. UTS Student Rules 11.7.1(a), 11.8.3(1), 11.10.1, 11.13.1, 11.13.2, 11.19.6, 11.21, 11.23.2(1), 11.24.4, 17.5 and 17.7 read: "11.7.1 The maximum time to complete a research degree is as follows: (1) Doctoral degree by research, professional Doctoral degree and Doctoral degree by creative works: (a) four years for a full-time student; or … 11.8 Extension of candidature … 11.8.3 If approved, the maximum period of extension shall not, except in exceptional circumstances, exceed: (1) for Doctoral degrees, six months at a time and a maximum of two extensions; 11.10 Failure to complete 11.10.1 A student who does not submit a thesis for examination within the approved period of candidature including any approved extension will, except in exceptional circumstances, have his or her candidature discontinued due to unsatisfactory progress (refer Rule 11.23.2). 11.13 Review of progress 11.13.1 A student is required to submit to the relevant faculty each half year a report to enable review of progress in accordance with the guidelines approved by the Graduate Research School Board from time to time. A report shall not be required in respect of a student who has submitted his or her thesis to the faculty. 11.13.2 The principal supervisor shall submit to the relevant Responsible Academic Officer each half year a report on the student's progress. 11.19 Submission of thesis 11.19.6 The thesis and other works shall be provided to the Dean, Graduate Research School by the Responsible Academic Officer with a certificate signed by the principal supervisor certifying that: (1) the thesis has been completed and is ready for examination; and (2) in the case of a Doctoral degree, the student has made an oral presentation of the thesis. The Responsible Academic Officer must also certify that the thesis is ready for examination. 11.21 Student misconduct 11.21.1 Student misconduct is dealt with in Rule 16.2. 11.21.2 Student misconduct that occurs in relation to a graduate research course will be dealt with in accordance with the provisions of Section 16. (Student misconduct and appeals). 11.23 Discontinuation of candidature 11.23.2 The University may discontinue a student's candidature in a research course in certain circumstances including but not limited to: (1) unsatisfactory progress: (a) where a student has not submitted a thesis for examination within the approved period of candidature as specified in Rule 11.7 (refer Rule 11.8.3 and 11.10); (b) where a student has not satisfied progress requirements (refer Rule 11.13); … 11.24 Appeal against discontinuation of candidature 11.24.4 The grounds for appeal against a decision of discontinuation of candidature due to unsatisfactory progress made pursuant to Rule 11.23.2(1) are: (1) procedural irregularities of a type and to an extent that are likely to have had a significant negative impact in the candidature assessment and/or the review of progress; (2) mitigating circumstances, supported by documentary evidence, which directly and significantly affected the student's progress, which were not known at the time and which would have reasonably led to a decision other than the discontinuation of candidature; and/or (3) the decision was based on factual errors of such magnitude as to invalidate the decision. 17.5 Procedures for Appeals Committees 17.5.1 Appeals Committees of Academic Board shall be convened by the University Secretary as required in accordance with the relevant Standing Orders of Academic Board. 17.5.2 Each appeal must be dealt with on its own terms and merits and in accordance with its own circumstances. 17.5.3 Academic Board shall approve sets of procedural guidelines to be followed by the respective Appeals Committees established under Rules 17.2 to 17.4, and such guidelines shall be subject to review by the Academic Board from time to time. 17.5.4 An Appeals Committee shall determine how to handle the matters before it, consistent with the procedural guidelines that Academic Board has approved for it. In particular, an Appeals Committee is not bound by the rules of evidence and may inform itself on any matter relevant to its deliberations in a way that it considers to be efficacious and reliable, consistent with basic fairness to each appellant, and having regard to the academic standards of the University. 17.5.5 Senior administrative staff may assist Appeals Committees, act as advisers and attend meetings as required by the Chair. These staff may include the Director, Student Administration Unit (or nominee), Director, Student Services Unit (or nominee), the Manager, Graduate Research School (or nominee), or any other advisers nominated by the Chair of the committee having regard to the stated grounds for appeal. In providing assistance to an Appeals Committee, the members of staff shall confine their comments or contributions to the provision of factual information or technical or legal advice that is actually needed to assist the committee to deal with the matter or matters before it. They should not express any opinion about the appropriate outcome for individual cases or on the merits of any case. A note should be made of the substance of their advice and this should be kept with the official University file relating to the appeal in question. 17.7 Decision of an Appeals Committee 17.7.1 A decision of an Appeals Committee of Academic Board requires a simple majority of the members deciding the appeal. The Chair has a casting vote in the event that this is necessary. 17.7.2 An Appeals Committee of Academic Board may: (1) refer a matter back to the decision-maker for further consideration; or (2) uphold an appeal and reverse the original decision; or (3) uphold an appeal in part and vary the original decision; or (4) dismiss an appeal. 17.7.3 The Chair of an Appeals Committee of Academic Board must provide the University Secretary with the committee's minutes within five working days of the meeting at which a decision is made. An extension of this time limit by no more than five working days is possible and subject to agreement between the Chair and the University Secretary. The minutes must contain the record of the decision taken and the reasons for the decision. 17.7.4 A decision of an Appeals Committee of Academic Board is final. The decision of an Appeals Committee of Academic Board must be reported to Academic Board for information via an Appeals Committees of Academic Board annual report. …" 1. Additionally, the plaintiff refers to s 5.2(c) of the 2010 Conditions of Award-UTS Doctoral Scholarship ("UTSD"). Section 5.2(c) refers to relocation allowances and is not applicable here. 2. As best I can understand the plaintiff's conflated submissions on this topic, they firstly cover discontinuance; secondly, the payment of $500; and thirdly the appeal committee. (A) Discontinuance 1. The plaintiff submitted that UTS had accepted his progress. It is true that UTS had accepted his progress up to a point in time. The plaintiff says "Rule 11.13.1 required him to put in a notice of a submission two months before he submits his thesis. Your do not need the supervisor to do that. You fill in the form and you put it in". That is how he did it. The plaintiff submitted that "when the student has done this, the rule says that you cannot give the student an "unsatisfactory" in the same semester unless the student has not submitted their thesis". The plaintiff's reliance on UTS Student Rule 11.13.1 is misplaced. (T23: 25-30) 2. According to the plaintiff, his thesis was lodged on time so he was surprised when he was given an unsatisfactory. He says that he was given two "unsatisfactory" without any notice being given to him and "the rules says that if you give an unsatisfactory you must give notice to the student. You receive a letter from the university". He received a letter from the university dated 7 April 2015 giving him notice of two "unsatisfactory". (T23.24-36). The plaintiff also submitted that he was given the two "unsatisfactory" on 29 and 30 January 2015, and for almost three months "they kept it a secret". The rule says that "if you give a student two unsatisfactory that student must be dismissed…You dismiss a student on a zero." (T 24: 5-10) 3. The failure to meet the requirements of UTS Student Rule 11.13 was not just because the plaintiff himself had not submitted the student's report as required by 11.13.1. Rather, there had been two unsatisfactory progress reports issued under rule 11.13.2 (at [19], [26]-[29], [108], [121], [127], [167]). The two types of "progress report" are different, although the plaintiff's failure to submit a report under UTS Student Rule 11.13.1 was the reason for the second unsatisfactory progress report under rule 11.13.2. It was the combination of the two reports which informed Associate Professor Abolhasan's recommendation to discontinue the plaintiff's candidature: the Federal Circuit Court judgment at [182]. On the facts as found by the Federal Circuit Court, one of the four circumstances which gave rise to the decision to discontinue the plaintiff's enrolment was linked to the application of that rule. That circumstance fell within UTS Student Rule 11.23.2(1) specifically "where a student has not satisfied progress requirements (refer Rule 11.13)." 4. In addition, there were three other reasons for that recommendation (referred to earlier in this judgment). One of those reasons was the plaintiff's failure to submit a thesis within an approved period of candidature. That was a reason permitted by UTS Student Rule 11.23.2(1)(a). By the time of discontinuance, the maximum period of candidature allowed by UTS Student Rules 11.7.1(1)(a) and 11.8.3(1) (being four years, plus two six-month extensions) had been exceeded: the judgment at [182]. UTS Student Rule 11.10.1 says that discontinuation will "except in exceptional circumstances" ensue when the approved period of candidature is exceeded. The fact that the draft thesis was not suitable for examination, and the failure to produce necessary information to allow the thesis to be examined, may be understood as discretionary factors supporting the decision to discontinue (or as indicating that these were not "exceptional circumstances"). 5. Even if the plaintiff is correct to construe UTS Student Rule 11.13.1 as inapplicable after his attempted submission of his draft thesis in December 2014 that could not negate the decision to discontinue his enrolment. That construction is not open in any event, because the plaintiff had himself not complied with the UTS Student Rules when he attempted to submit the thesis in December 2014. This was because the thesis was not accompanied by a supervisor's certificate as required by UTS Student Rule 11.19.6. It is important to note that the Federal Circuit Court made a relevant finding that this topic was not disputed. It was when the plaintiff purportedly submitted his draft thesis to the GRS, that it did not include a supervisor's certificate from Professor Nguyen, as required by UTS Student Rules 11.19.6 (at [28], [126]). 6. The plaintiff's contention that the point had been reached when UTS Student Rule 11.13.1 ceased to apply is incorrect. Rather, the correct interpretation is that the plaintiff remained a student whose doctoral studies were incomplete. (B) The payment of $500 and the appeal committee 1. The plaintiff says that he put the application in with the $500 in accordance to the rule because he had finished his thesis. This process, according to the plaintiff, "takes two week to approve with the collaboration between the faculty and the graduation school. It is not someone in the office. They pay the money from the finance system for UTS. Not by hand." 2. The plaintiff submitted that he does not agree that he was dismissed in April 2015, because three months later in June 2015 they paid him the amount of $500. He says that he was still a student. He was not dismissed and therefore there was no reason for him to go to the meeting before the appeal committee. (T24.3-30). As was made clear in the Federal Circuit Court judgment at [28], the sum of $500 was paid by UTS in order for the plaintiff to facilitate the proof reading of his draft thesis and did not substantiate the conclusion that the thesis had been accepted or approved for examination. 3. As to the matters relating to the plaintiff's appeal to the appeal committee, there is no basis to say there was any non-compliance with any of the relevant rules. As those documents established, the appeals committee dismissed the appeal because "there was no evidence presented which would have reasonably led to a decision other than the discontinuation of candidature", and hence the grounds of appeal in UTS Student Rule 11.24.4 were not made out. 4. The facts also provide no basis at all for any finding of a breach of any relevant provision of UTS Student Rules 17.5 to 17.7. The Federal Circuit Court rejected the plaintiff's claim that Professor Nguyen had interfered in the appeal (at [186]-[187]). Accordingly there was no breach of UTS Student Rule 17.5.5. There is nothing in the judgment, the minutes or any other available material to suggest any other procedural failure within 17.5.1 to 17.5.5. The letter dated 7 August 2015 records that the appeal committee's decision was unanimous, and its action in dismissing the appeal was open to it under UTS Student Rule 17.7.2. (c) Alleged falsification of minutes 1. Here, as in the Federal Circuit Court, the plaintiff complained about the falsification of the minutes of the meeting dated 3 August 2018. The plaintiff also refers to UTS Student Rule 17.7.3, in connection with his (now rejected) allegation about the "falsified" minutes. In the Federal Circuit Court there was no evidence to substantiate the plaintiff's claim that UTS had "falsified" the minutes of the GRS appeals committee meeting of 3 August 2015. There is no basis to conclude that the minutes were not provided to the UTS secretary (previously registrar) within the required time. Even if that were so, the subsequent internal procedural step would not have any particular consequences for the plaintiff one way or another, and could not affect the validity of the earlier discontinuance decision or the dismissal of the appeal. My conclusion 1. The plaintiff's arguments concerning breaches of the UTS Student Rules are hopeless and should be dismissed. Procedural fairness 1. If the plaintiff is making a complaint that he was not afforded procedural fairness by not being granted extensions of time to submit his PHD thesis, he was granted extensions in November 2012, March 2014 and June 2014. It is my view that the plaintiff was afforded more than a reasonable opportunity to submit his PHD thesis on the topic of Development and Optimisation of Bio-Compatible Polymer-Based Electros for EEG Recording but he did not do so. In my view, the plaintiff's submissions that the defendant breached the UTS Student Rules and failed to afford him procedural fairness are hopeless. They should be dismissed. 2. I have a discretion to permit the plaintiff to file an amended summons. However, no amendments to the summons can overcome the plaintiff's arguments that are subject to issue estoppel. The plaintiff's arguments concerning breaches of the UTS Student Rules and denial of procedural fairness are hopeless and in my view cannot be cured by amendment. 3. Hence, the result is that the plaintiff's summons dated 17 October 2017 seeking judicial review is dismissed. 4. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs on an ordinary basis. The Court orders that: (1) The plaintiff's summons dated 12 October 2017 seeking judicial review is dismissed. (2) The plaintiff is to pay the defendant's costs on an ordinary basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2018