2024 Medical Negligence Update: Kitoko v Sydney Local Health District

Kitoko v Sydney Local Health District [2024] NSWCA 49  

In the matter of Kitoko v Sydney Local Health District [2024] NSWCA 49, the plaintiff, Vangu Kitoko, commenced personal injury proceedings against the defendant, Sydney Local Health District, for medical negligence and physical and sexual assault concerning his treatment at Canterbury District Hospital and St George District Hospital in March 2021. 

The plaintiff has sought leave to appeal from the summary dismissal of proceedings brought by him in the New South Wales Supreme Court. Leave is required as the decisions in question were interlocutory in nature. 

The plaintiff’s proposed grounds of appeal alleged error in the primary judge’s decisions to (in summary): 

• summarily dismiss the proceedings;
• dismiss the applicant’s applications for the entry of summary or default judgment in his favour; and
• dismiss the applicant’s application to file a further amended statement of claim.

The plaintiff also alleged that the primary judge had demonstrated actual and/or apprehended bias, and that the plaintiff had been denied procedural fairness.

The Court of Appeal provided, in relation to Ground 1 regarding a complaint as to jurisdiction (at [60]):

The pleading before the primary judge did not contain claims attracting Federal jurisdiction, and even if Federal jurisdiction had been attracted, the procedural rules applicable to summary disposal would still have applied.  

The Court of Appeal provided, in relation to Ground 2 regarding dismissal of summary judgement application (at [84] and [88]):

The applicant’s emphasis on his “unchallenged” evidence is misconceived, as the respondents had not yet been required to file evidence in defence of the claim; additionally, the applicant’s own evidence is contradictory to his claims.

There is no arguable case that there was error in the refusal to grant summary judgment in the applicant’s favour.

The Court of Appeal provided, in relation to Ground 3 regarding dismissal of default judgement application (at [96]):

There was no error in the primary judge’s conclusion that the respondents were not required to file a defence pending the hearing of the summary dismissal application. Even if there had been such an error, it does not follow that default judgment must be entered in circumstances where there was clearly a triable issue for the defence.

The Court of Appeal provided, in relation to Ground 4 regarding dismissal of application to amend pleading (at [101]):

The primary judge provided adequate reasons for the refusal of the application to amend the pleading. There was no error in refusing leave to amend on the basis that the amendment was doomed to fail.

The Court of Appeal provided, in relation to Ground 5 regarding summary dismissal of proceedings (at [109]):

No error of principle was identified in respect of the primary judge’s summary dismissal of the proceedings; his Honour had regard to the applicable test, reviewed the relevant material, and gave adequate reasons for the conclusion that each of the claims were doomed.

The Court of Appeal provided, in relation to the allegations of bias and denial of procedural fairness:

There is nothing in the present case to support the applicant’s assertion of pre-judgment; the questioning by the primary judge was clearly in order to come to a clear understanding of the applications being made, and the fact that judgment was handed down ten days after the hearing does not give rise to any inference of pre-judgment (at [19], [122]).

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 12; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39; Mohareb v Kelso (No 2) [2018] NSWCA 246; 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72 considered.

There can be no reasonable apprehension of bias arising from the fact that the primary judge dealt first with the submissions in support of the summary dismissal application before turning to the submissions in relation to the applicant’s applications (at [125]). The transcript also reveals that the primary judge frequently sought the applicant’s response and invited submissions; there is nothing to support the assertion of intimidation or bullying (at [126]). Robust questioning, or even deprecatory comments about the pleading, does not amount to intimidation or bullying, nor does it indicate pre-judgment or apprehended bias.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 applied.

Consideration of the primary judge’s reasons, and the questions raised by his Honour during the hearing, demonstrates that the applicant’s complaint that he was denied procedural fairness due to the primary judge’s failure to consider the material cannot be made good (at [127]).

Ultimately, on 12 March 2024, the New South Wales Court of Appeal dismissed the plaintiff’s summons seeking leave to appeal. The Court of Appeal further ordered that the plaintiff pay the defendant’s costs of the proceedings.

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