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Kitoko v University of Technology Sydney [2021] FCA 360 (15 April 2021)

Last Updated: 4 May 2021

FEDERAL COURT OF AUSTRALIA

Kitoko v University of Technology Sydney [2021] FCA 360

File number(s):	NSD 911 of 2020
Judgment of:	GRIFFITHS J
Date of judgment:	15 April 2021
Catchwords:	PRACTICE AND PROCEDURE – interlocutory applications by applicant for default and summary judgment – interlocutory applications by ten respondents for summary judgment and strike out – whether proceeding is not maintainable because of issue estoppel or Anshun estoppel – where issues finally determined by other courts – whether proceeding is an abuse of process – whether applicant has no reasonable prospects of success – whether applicant’s pleading is frivolous or vexatious – summary judgment entered in favour of each respondent – applicant’s interlocutory applications dismissed
Legislation:	Australian Human Rights Commission Act 1986 (Cth) s 46PO Competition and Consumer Act 2010 (Cth) ss 18, 21, 236-7 of Sch 2 (Australian Consumer Law) Disability Discrimination Act 1992 (Cth) ss 22(2) and 42 Federal Court of Australia Act 1976 (Cth) ss 23, 31A Federal Circuit Court of Australia Act 1999 (Cth) s 18 Racial Discrimination Act 1975 (Cth) ss 9, 11, 17, 18C and 42 Trade Practices Act 1974 (Cth) ss 51A, 52, 82, 87, 88 Federal Court Rules 2011 (Cth) rr 1.32, 5.02, 5.22(a), 5.23(2)(c), 9.41, 11.06, 16.02, 16.11, 26.01, 36.03(a) Anti-Discrimination Act 1977 (NSW)
Cases cited:	ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2007] FCAFC 146; 161 FCR 513 Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 Australian Securities and Investment Commission v Cassimatis [2013] FCA 641; 220 FCR 556 Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629 Commonwealth v Snell [2019] FCAFC 57; 269 FCR 18 Deputy Commissioner of Taxation v Sibai [2015] FCA 1465 Electrolux Home Products Pty Ltd v Delap Impex KFT [2015] FCA 62 Fortescue Metals Group v Warrie [2019] FCAFC 177; 273 FCR 350 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 Kimber v Owners of Strata Plan No. 48216  [2017] FCAFC 226 ; 258 FCR 575 Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152 Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201 Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305 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] FCA 1004 Kitoko v University of Technology Sydney [2018] NSWSC 1007 Kitoko v University of Technology Sydney [2019] NSWSC 1437 Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Lenijmar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 338 Macquarie Bank Ltd v Seagle [2005] FCA 1239 Macquarie Bank Ltd v Seagle [2008] FCA 1417 McGuirk v The University of New South Wales [2009] NSWSC 1424 McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 Morris v Riverwild Management Pty Ltd [2011] VSCA 283; 38 VR 103 New South Wales Department of Housing v Moskalev [2007] FCA 353; 158 FCR 206 PNJ v R [2009] HCA 6; 252 ALR 612 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Robinson v Deep Investments Pty Ltd [2018] FCAFC 232; 364 ALR 305 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202 Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aus Torts Reports 81-423 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; 259 CLR 212 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 Walton v Gardiner [1993] HCA 77; 177 CLR 378
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub Area	Regulator and Consumer Protection
Number of paragraphs:	142
Date of hearing:	6 April 2021
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First and Second Respondents:	Mr A Flecknoe-Brown
Solicitor for the First and Second Respondents:	Barry Nilsson Lawyers
Counsel for the Third and Fourth Respondents:	Ms A Avery-Williams
Solicitor for the Third and Fourth Respondents:	Sparke Helmore
Counsel for the Fifth Respondent:	Mr P Knowles
Solicitor for the Fifth Respondent:	Wotton + Kearney
Counsel for the Sixth Respondent:	Ms N Oreb
Solicitor for the Sixth Respondent:	Moray & Agnew
Counsel for the Seventh and Eighth Respondents:	Mr R Perla
Solicitor for the Seventh and Eighth Respondents:	McCabe Curwood Lawyers
Counsel for the Ninth Respondent:	Mr S Ahmed
Solicitor for the Ninth Respondent:	Mills Oakley
Counsel for the Tenth Respondent:	Mr A Ahmad
Solicitor for the Tenth Respondent:	Holman Webb Lawyers

ORDERS

THE COURT ORDERS THAT:

1. The third respondent’s name be changed to “Mirvac Real Estate Pty Ltd ACN 003 342 452”.
2. The fourth respondent’s name be changed to “David Cooper”.
3. The sixth respondent’s name be changed to “DLA Piper Australia”.
4. Judgment is entered in favour of each of the respondents against the applicant pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).
5. The applicant’s interlocutory applications filed on 27 October 2020, 18 November 2020, 7 December 2020 and 11 December 2020 are dismissed.
6. The applicant pay each of the respondents’ costs of the proceeding, including the costs of the interlocutory applications the subject of these reasons for judgment, as agreed or taxed.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1. By way of an amended originating application and amended statement of claim (ASOC), both dated 2 October 2020, the applicant seeks various forms of relief based on multiple causes of action against ten respondents. The claims relate primarily to the discontinuance of the applicant’s PhD candidature with the first respondent, the University of Technology Sydney (UTS). Various people associated with UTS constitute the second respondent. As will become apparent, this proceeding is the latest in a multitude of administrative and judicial proceedings which the applicant has brought against some of the named respondents in relation to the discontinuation of his PhD candidature and a related incident in which the applicant suffered personal injury at the Broadway Shopping Centre (Broadway Incident). The applicant has been wholly unsuccessful in each of those previous administrative and judicial proceedings.
2. These reasons for judgment concern four interlocutory applications filed by the applicant seeking default and/or summary judgment against the respondents, and interlocutory applications filed on behalf of each the respondents seeking summary judgment, strike out and/or a permanent stay of proceedings against the applicant. Some of the relevant respondents also seek a rectification of their name as a respondent in the proceeding.

The applicant’s interlocutory applications

3. The applicant has filed four interlocutory applications in this proceeding, namely:

(a) An interlocutory application filed on 27 October 2020 seeking default judgment against the third respondent (Mirvac Real State Pty Ltd (Mirvac)) pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth) (2011 FCRs). The applicant alleges that Mirvac is in default by failing to enter an appearance or file a notice of address for service before the return date for the amended originating application in contravention of rr 5.22(a), 5.02 and 11.06 of the 2011 FCRs.
(b) An interlocutory application filed on 18 November 2020 seeking default judgment against the third, fourth and ninth respondents pursuant to r 5.23(2)(c) of the 2011 FCRs. The applicant alleges that the third, fourth and ninth respondents are in default by failing to file and serve a defence by 17 November 2020 in accordance with order 4 of the orders dated 29 September 2020, in contravention of r 5.22(a) of the 2011 FCRs.
(c) An interlocutory application filed on 7 December 2020 seeking summary judgment against each of the respondents pursuant to s 31A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or r 26.01(e) of the 2011 FCRs.
(d) An interlocutory application filed on 11 December 2020 seeking:

(i) default judgment against the tenth respondent (Community Migrant Resource Centre Inc (CMRC)) pursuant to r 5.23(2)(c) of the 2011 FCRs. The applicant alleges that CMRC is in default by failing to file and serve a defence by 17 November 2020 in accordance with order 4 of the orders dated 29 September 2020, in contravention of r 5.22(a) of the 2011 FCRs; and
(ii) default judgment against the third, fourth, sixth, seventh and eighth respondents pursuant to r 5.23(2)(c) of the 2011 FCRs. The applicant alleges that these respondents are in default by filing and serving an application to be removed as a party to the proceeding or for strike out or summary dismissal of the proceeding after 24 November 2020, in breach of order 5 of the orders dated 29 September 2020, in contravention of r 5.22(a) of the 2011 FCRs.

The respondents’ interlocutory applications

4. The respondents have filed the following interlocutory applications in the proceeding:

(a) First and second respondents: an interlocutory application filed on 24 November 2020 seeking that the proceedings be summarily dismissed pursuant to s 31A(2) of the FCA Act and/or 26.01 of the 2011 FCRs, alleging the applicant has no reasonable prospects of success and further or alternatively the proceeding is an abuse of process. In its written and oral submissions, the first respondent also raised issue estoppel. No objection was taken by the applicant to this course.
(b) Third and fourth respondents: an interlocutory application filed on 8 December 2021 seeking:

(i) summary judgment pursuant to s 31A(2) of the FCA Act and/or r 26.01 of the 2011 FCRs;
(ii) further or alternatively, an order permanently staying or dismissing the proceedings as against the third and fourth respondents pursuant to s 23 of the FCA Act and/or r 1.32 of the 2011 FCRs;
(iii) further or alternatively, the ASOC be struck out as against the third and fourth respondents pursuant to r 16.21 of the 2011 FCRs; and
(iv) orders that the third and fourth respondents names be changed to “Mirvac Real Estate Pty Ltd ACN 003 342 452” and “David Cooper” respectively, pursuant to s 23 of the FCA Act and/or r 1.32 of the 2011 FCRs

(c) Fifth respondent: an interlocutory application filed on 24 November 2020 seeking summary judgment pursuant to s 31A(2) of the FCA Act or r 26.01 of the 2011 FCRs, and further and alternatively that the ASOC be struck out so far as it contains claims against the fifth respondent, pursuant to r 16.21(b)-(f) of the 2011 FCRs.
(d) Sixth respondent: an interlocutory application filed on 25 November 2020 seeking that the proceedings be dismissed, be permanently stayed and/or the ASOC be struck out insofar as it is brought against the sixth respondent. The sixth respondent also seeks an order changing its name to “DLA Piper Australia”.
(e) Seventh and eighth respondents: an interlocutory application filed on 25 November 2020 seeking summary judgment pursuant to s 31A of the FCA Act and/or r 26.01 of the 2011 FCRs, or alternatively that the proceedings be struck out as against the seventh and eighth respondents pursuant to r 16.21 of the 2011 FCRs.
(f) Ninth respondent: an amended interlocutory application filed on 11 December 2020 seeking that the applicant’s ASOC be struck out as against the ninth respondent pursuant to r 16.21 of the 2011 FCRs and/or summary judgment entered pursuant to r 26.01 of the 2011 FCRs and/or s 31A(2) of the FCA Act.
(g) Tenth respondent: an interlocutory application filed on 24 November 2020 seeking:

(i) that the proceedings be dismissed pursuant to s 31A(2) of the FCA Act as there is no reasonable prospect of success;
(ii) in addition or alternatively, the amended originating application and ASOC be struck out pursuant to 16.21 of the 2011 FCRs on the grounds that the proceeding is frivolous or vexatious, no reasonable cause of action is disclosed, the proceeding is an abuse of process and there is no reasonable prospect of success; and
(iii) in addition or alternatively, the proceeding be dismissed pursuant to r 26.01(1) of the 2011 FCRs based on the same grounds as the strike out application.

5. In brief, each of the respondents effectively seeks that the proceedings as against them be dismissed, either by way of summary judgment, strike out or a permanent stay of proceedings under the FCA Act, 2011 FCRs or the Court’s inherent supervisory jurisdiction. In broad terms, each of these powers is said to arise because either the applicant’s amended originating application and ASOC discloses no reasonable cause of action and has no reasonable prospects of success, and/or the proceedings are an abuse of process, because they seek to re-litigate matters already finally determined by other courts or tribunals and are otherwise frivolous and vexatious.
6. In addition to the interlocutory orders sought above, each respondent seeks costs orders against the applicant for the whole of the proceeding, including their interlocutory applications.

Preliminary matters concerning the names of certain respondents

7. As noted above, each of the third, fourth and sixth respondents seek that the amended originating application be amended to change their names as respondents.
8. In relation to the third respondent, this name change is merely to fix a typographical error as emphasised (from “Mirvac Real State Pty Ltd” to “Mirvac Real Estate Pty Ltd”), and therefore should be granted.
9. In relation to the fourth respondent, the name change simply seeks to remove the prefix “Lawyer of Mirvac [whose name appear below]” before David Cooper, without substantively changing the person named as the fourth respondent, and therefore should also be granted.
10. The sixth respondent relevantly seeks that its name be changed from (emphasis in original) “Lawyers of Access (1) Samantha Kelly (Samantha); (2) James Berg (James)” to “DLA Piper Australia”. Ms Kelly and Mr Berg are two partners of DLA Piper Australia who are the solicitors for the fifth respondent. The sixth respondent submits that two separate individuals cannot constitute one respondent, and that rule 9.41 of the 2011 FCRs states that where a proceeding is commenced against two or more people said to be liable as partners, the proceeding should be properly instituted in the partnership name.
11. Although the applicant initially opposed this name change, he indicated at the hearing that the name change would not prejudice him in any way. I consider that the name change is appropriate and should be granted.

Litigation history summarised

12. It is desirable to summarise the lengthy history of judicial and administrative proceedings brought by the applicant against some of the named respondents. These proceedings, in which the applicant has been wholly unsuccessful, are said by various respondents to give rise to issues of abuse of process, issue estoppel and Anshun estoppel, in relation to the present proceeding.

(a) District Court of NSW proceedings

13. The first litigation involving the applicant and some of the respondents began in 2013, when the applicant commenced proceedings in the District Court of NSW against the parties who are now the third and fifth respondents, seeking damages for personal injury allegedly suffered in an accident at Broadway on 5 October 2010 (District Court Proceedings). The fourth and sixth respondents were the solicitors on the record for the third and fifth respondents respectively in those proceedings. An employee of the ninth respondent (UNSW), Associate Professor Mark Pickering, was a witness in that proceeding. A neurologist employed at Concord Public Hospital (CPH) by the Sydney Local Health District (the seventh respondent) (SLHD), Dr Lord, who had treated the applicant, also prepared medical reports which were before the District Court. That proceeding was dismissed with costs on 7 August 2015: Kitoko v Mirvac Real Estate Pty Ltd [2015] NSWDC 152. Coincidentally, 7 August 2015 was also the date upon which the Appeals Committee of the Academic Board of UTS (Appeals Committee) advised the applicant that his appeal in relation to the discontinuance of his PhD candidature was dismissed (see [21] below).
14. Relevantly, during the trial in the District Court, CCTV footage of the Broadway Incident was admitted into evidence. The primary judge concluded at [25] of his reasons for judgment that the CCTV footage demonstrated that the applicant “simply walked into the pane of glass”, rather than having slipped on a viscous substance on the floor due to negligence of the defendants, as alleged by the applicant. During the trial, the applicant had made submissions that the CCTV footage was in some way falsified, as Dr Blum, one of the witnesses before the District Court, referred to having received two separate CDs of the CCTV footage. The primary judge concluded at [27] that “there is simply no evidence to substantiate the conspiracy to hide material that [the applicant] alleges”. The primary judge found that Dr Blum was simply confused and that he must have received the same footage on two separate occasions (at [26]-[27]). It is relevant to note that this CCTV footage is the subject of some of the applicant’s allegations in the present proceeding.
15. On 15 August 2016, the NSW Court of Appeal dismissed the applicant’s appeal from the District Court with costs: Kitoko v Mirvac Real Estate Pty Ltd [2016] NSWCA 201. In large part, the applicant’s submissions in support of the appeal were based on an assertion that the CCTV footage admitted in the District Court was fake.
16. The applicant subsequently sought special leave to appeal to the High Court. On 16 November 2016, special leave was refused: Kitoko v Mirvac Real Estate Pty Ltd [2016] HCASL 305. Relevantly, for the first time, the applicant in his special leave application asserted that since commencing the proceedings in the District Court, “Broadway Mirvac shopping centre lawyers have worked in collaboration with ... my PH.D main supervisor (Professor Hung Nguyen) at UTS for my punishment”. Professor Nguyen is one of the persons named as the second respondent in the present proceeding.

(b) NSW Civil and Administrative Tribunal proceedings

17. In 2016, the applicant commenced proceedings under the Anti-Discrimination Act 1977 (NSW) in the NSW Civil and Administrative Tribunal (NCAT) against the seventh respondent, complaining that Dr Lord, as an employee of CPH (which is managed by SLHD), had engaged in conduct amounting to racial discrimination (NCAT Proceedings). As noted above, Dr Lord prepared reports in the District Court Proceedings. In essence, the applicant alleged that Dr Lord had conspired with Broadway to falsify and/or deny him evidence in relation to his claim in the District Court Proceedings on the basis of his race.
18. On 27 June 2017, NCAT dismissed the proceedings for lack of substance: Kitoko v Sydney Local Health District [2017] NSWCATAD 209. On 29 October 2017, a summons filed in the NSW Supreme Court seeking leave to appeal the NCAT decision was dismissed with costs. On 6 February 2017, the NCAT Appeal Panel refused the applicant’s application to extend time to appeal the original NCAT decision, refused leave to appeal and otherwise dismissed the appeal: Kitoko v Sydney Local Health District [2018] NSWCATAP 38. On 2 October 2018, Lonergan J refused the applicant’s application for leave to appeal the NCAT Appeal Panel decision to the NSW Supreme Court with costs: Kitoko v Sydney Local Health District [2018] NSWSC 1461.

(c) Federal Circuit Court proceedings

19. In May 2016, the applicant brought proceedings against the first respondent (UTS) in the Federal Circuit Court, alleging breaches of the Racial Discrimination Act 1975 (Cth) (RD Act) and Disability Discrimination Act 1992 (Cth) (DD Act) in relation to the discontinuance of his PhD candidature (FCCA Proceedings). These proceeding were brought by way of an application pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), after the Australian Human Rights Commission (AHRC) informed the applicant on 11 March 2016 that no further action would be taken in relation to his AHRC complaint.
20. On 28 March 2018, Nicholls J dismissed the applicant’s proceedings: Kitoko v University of Technology Sydney [2018] FCCA 699. On 26 June 2018, Rares J dismissed an application for extension of time in which to file a notice of appeal from the Federal Circuit Court to the Federal Court: Kitoko v University of Technology Sydney [2018] FCA 1004 (FCA Proceedings). It will be necessary to set out the findings of Nicholls J and Rares J in some detail, as these decisions form a primary basis for the interlocutory applications filed by the respondents, in which they allege that the current proceedings are an abuse of process or give rise to issue estoppel and/or Anshun estoppel.
21. After setting out the procedural history to the FCCA Proceedings, Nicholls J at [12]-[51] comprehensively outlined the relevant factual background to the dispute concerning both the discontinuance of the applicant’s PhD candidature and the Broadway Incident. The following factual matters outlined by Nicholls J in relation to the discontinuance of the applicant’s PhD candidature are reproduced by way of summary, noting that they form a large part of the factual matrix surrounding the applicant’s allegations in the present proceeding:
    • The applicant enrolled as a PhD student in the Faculty of Engineering and Information Technology at UTS in January 2010, to be supervised by Professor Hung Nguyen. The applicant was awarded a UTS doctoral scholarship for a period of three years, being until December 2012.
    • Between January 2010 and June 2013, Professor Nguyen considered that the applicant was making “satisfactory progress” in his PhD research.
    • In November 2012, the applicant, with the support of Professor Nguyen, applied for a six month extension to his PhD scholarship.
    • In the Spring 2013 Progress Report, Professor Nguyen recorded that the applicant was making “satisfactory progress”.
    • By January 2014, the applicant had exceeded the maximum four year period for completing his PhD pursuant to the UTS Student Rules. The applicant applied in March and June 2014 for extensions to his PhD candidature, which were granted.
    • From Autumn 2014, Professor Nguyen expressed concerns regarding the applicant’s “unsatisfactory progress”.
    • In August and October 2014, a series of meetings were held by UTS staff, including Professor Nguyen, Associate Professor Abolhasan (the applicant’s Responsible Academic Officer) and Ms Phyllis Agius (a UTS Research Administration Officer) concerning the applicant’s PhD candidature, some of which were conducted with the applicant present. While Nicholls J noted some dispute between the parties as to the objective of the 8 October meeting (at [23]), a meeting was held then between Associate Professor Abolhasan, Professor Nguyen and the applicant with the apparent purpose of working out a way the applicant could complete his thesis by December 2014. The minutes of that meeting record that the applicant agreed to provide to UTS, in the next couple of weeks, a demonstration of his research system and methodology, including information around protocol and proof of ethics clearance for researching human subjects.
    • On 12 December 2014, Associate Professor Abolhasan sent an email to the applicant outlining that, contrary to what was agreed at the 8 October 2014 meeting, the applicant had not provided a demonstration of his research system and methodology, and had failed to complete a Spring 2014 Progress Report.
    • On 18 December 2014, the applicant attempted to submit his thesis to the Graduate Research School (GRS) for examination without a Supervisor’s Certificate from Professor Nguyen as required.
    • On 18 February 2015, a further meeting was held between the applicant, Professor Nguyen, Associate Professor Abolhasan and Ms Aki Plume, Manager at GRS. According to the minutes of the meeting the applicant indicated he did not have the necessary equipment to progress his research, to which Professor Nguyen asserted that he could arrange for the necessary “sensor” to be provided to the applicant if he stated what he needed. Associate Professor Abolhasan asserted that this was applicant’s final opportunity.
    • By 4 March 2015, Mr Kitoko applied for and was provided with the “sensor” referred to at the 18 February 2015 meeting.
    • On 13 March 2015, the applicant submitted an application for a further extension of his PhD candidature to the Dean of the GRS.
    • Between mid-March 2015 and early April 2015, Ms Agius, on behalf of Associate Professor Abolhasan, unsuccessfully attempted to organise another meeting with the applicant, with the applicant advising he was unavailable.
    • On 8 April 2015, by letter and email the applicant was advised that his PhD candidature was under review and “may be discontinued”.
    • On 15 April 2015, the applicant re-submitted his thesis to the GRS.
    • On 27 April 2015 and 4 May 2015, two meetings were held between the applicant, Professor Nguyen, Associate Professor Abolhasan and other relevant UTS staff members. At those meetings, the applicant alleged that due to a software upgrade on the computer on which he was using for his PhD research, “all data stored from the computer (including the raw supporting data generated from [his] experiments) were lost”.
    • On 14 May 2015, the IT department at UTS advised that the applicant’s computer had been “re-imaged” on 9 March 2015 and that the applicant had been warned to back-up his computer prior to the upgrade.
    • On the same day, Associate Professor Abolhasan wrote to the Dean of GRS recommending that the applicant’s PhD candidature be discontinued.
    • On 19 May 2015, the applicant was advised that his enrolment had been discontinued.
    • On 5 June 2015, the applicant appealed the decision to discontinue his enrolment to the Appeals Committee.
    • On 7 August 2015, the Appeals Committee advised the applicant that at a meeting of the Appeals Committee on 3 August 2015 it was decided that his appeal be dismissed.
    • On 12 August 2015, the applicant lodged a complaint with the NSW Ombudsman, but was advised on 3 February 2016 that no further action would be taken.
22. With the factual summary as outlined above (as well as the matters the subject of the District Court Proceedings) in mind, the claims for relief sought by the applicant under the RD Act and DD Act in the FCCA Proceedings were based on the following broad factual propositions:

(a) Professor Nguyen, alone and with other staff, discriminated against the applicant on the grounds that he is a “black African” and that he is “disabled in the brain, hands and feet” as a result of the Broadway Incident. The applicant claimed the discontinuation of his PhD thesis was “unfairly imposed” on him by Professor Nguyen on the basis of this discrimination, as well as that it caused Professor Nguyen to effectively abandon his supervision, restrict and deny access to facilities and services, and physically threaten the applicant (at [52]-[55]).
(b) Professor Nguyen colluded with Dr Lord and CPH, and CPH discriminated against him on the basis of race, in circumstances where, after the events in question, Professor Nguyen’s son was offered, and appointed to, a position at CPH as a reward for the alleged collusion (at [56]).
(c) Professor Nguyen and CPH colluded with “Mirvac’s network” (the operators of Broadway) to “discriminate, victimize and humiliate” the applicant (at [57]).
(d) UTS’s conduct, including the decision to discontinue the applicant’s enrolment, could not have occurred in relation to any student with “different race, colour, descent or national or ethnic origin” (at [58]).

23. Judge Nicholls wholly rejected the applicant’s factual propositions in support of his claims for relief under the RD Act and DD Act. In particular, his Honour rejected the following matters advanced by the applicant:

(a) The allegation that Professor Nguyen had colluded with Mirvac was rejected because “[o]n their face, such assertions of collusion by individuals across a number of large and separate organisations, and in the circumstances presented, simply in order to humiliate or victimise Mr Kitoko, could be described as fanciful. However, the substance of the allegations for current purposes must arise from the evidence that is before the Court. It is here that one particular weakness of Mr Kitoko’s case is revealed” (at [73]).
(b) The allegation that Professor Nguyen had abandoned supervision of the applicant was rejected. Judge Nicholls found that until about June 2013, Professor Nguyen had, among other things, supported the applicant’s application for a six-month extension to his PhD scholarship, and from that time, it was the applicant himself who had ignored or failed to comply with reasonable requirements for his academic progress, which was not the result of a lack of supervision (at [82] ff).
(c) The allegations that Professor Nguyen had told the applicant not to come into his office because he was allegedly the “least intelligent student” he had encountered in his academic careers, and that Professor Nguyen had physically threatened him on 18 February 2015, if they were indeed true (which was not accepted), amounted to racial or disability discrimination.
(d) The proposition that a $500 payment made by UTS to the applicant in June 2015, which was after UTS had advised the applicant that his PhD had been discontinued, in some way made the discontinuance decision inoperative or was somehow evidence of discrimination.
(e) The proposition that the minutes of the Appeals Committee were fabricated, on the basis that the minutes were not finalised until 10 August 2015, three days after the applicant was advised of the Appeals Committee decision.

24. Of particular importance to the present proceeding, Nicholls J also found that each of the four reasons advanced by Associate Professor Abolhasan for recommending that the applicant’s PhD candidature be discontinued were reasonably available on the information before him (at [182]-[183]). In summary, those reasons were that:

(a) the applicant had exceeded the maximum time for PhD candidature by one and half years;
(b) the applicant had received two successive unsatisfactory progress reviews;
(c) the applicant had produced a thesis unsuitable for examination; and
(d) the applicant had failed to produce, without sufficient explanation, necessary information to allow his thesis to be examined, despite being afforded multiple opportunities to do so.

25. At [190]-[196], Nicholls J made the following general remarks concerning the applicant’s allegations (emphasis added):
    190. As set out above, and as against this background, in essence, the entirety of Mr Kitoko’s case is that Professor Nguyen was responsible for, and acted to cause, the discontinuance of his Ph.D. candidature. The assertion is that Mr Nguyen was motivated to do so, and engaged in various conduct to that end, because he racially discriminated against Mr Kitoko (because he was a “black man” or a “black African”), and did so in the knowledge that Mr Kitoko had suffered injuries, and had a disability, as a result of an accident in 2010.
    191. In short, Mr Kitoko’s view of relevant events, and his belief that Professor Nguyen engaged in some “collusion” with various parties, is simply an expression of Mr Kitoko’s opinion and is not supported by the evidence before the Court. There is nothing in the evidence to support Mr Kitoko’s belief that Professor Nguyen, and for that matter, anyone else at UTS, acted adversely to Mr Kitoko’s interests because, or for reason of, his being a “black African” or for any putative disability.
    192. It may be unpalatable for Mr Kitoko to accept that on the evidence before the Court, the reason for the discontinuance of his Ph.D. candidature, endorsed on appeal by the committee, was his own failure to achieve satisfactory academic progress and the continuing failure to address deficiencies in his thesis when these were brought to his attention.
    193. It must also be said that parts of Mr Kitoko’s submissions go beyond being characterised as simply lacking any probative evidence, to being described as “fanciful”. These were matters in which, in particular, he sought to pursue in cross examination of Professor Nguyen.
    194. As set out above, Mr Kitoko believes that Professor Nguyen was part of the Mirvac network. Mr Kitoko’s proposition was that Professor Nguyen’s son was employed by the CPH as a “reward” for Professor Nguyen’s “collusion” with Mirvac, in ensuring the cessation of Mr Kitoko’s Ph.D. candidature.
    195. The “scheme” envisaged by Mr Kitoko is that Dr Lord, who was employed at the CPH, and had previously treated Mr Kitoko, and who had also “discriminated” against Mr Kitoko because he was a “black African”, was also a part of the “Mirvac network”, and this meant that somehow Professor Nguyen’s son secured employment at the hospital as a result of this “scheme”.
    196. Even if this entire proposition had some rational basis (which it does not), on the evidence before the Court, it still does not establish, let alone indicate, that Professor Nguyen discriminated against Mr Kitoko because he was a “black African”. Even within its own “logic”, Mr Kitoko’s asserted “scheme” proposes that Professor Nguyen was motivated not by racial reasons, but to obtain a “reward” for his son.
26. With respect to the alleged conspiracy between the so-called “Mirvac network”, Nicholls J found at [104] that “[t]he parallel drawn by Mr Kitoko in the absence of any other evidence, to support the various iterations of his claim that a number of people have “colluded” to discriminate against him, must be rejected on any reasonable or rational view of the evidence”. To similar effect, Nicholls J concluded at [218]:
    218. The state of the evidence before the Court is such that it cannot be said there is any substance to the claim of a “Mirvac network” or “collusion”. The breadth of this claim, the involvement of such a large number of parties, and institutions, that otherwise have no relevant established links, supports the view that the claim has no inherent credibility.
27. Judge Nicholls found at [219] that, based on the evidence before the FCCA, the cause of the discontinuance of the applicant’s PhD candidature was his own inability to achieve satisfactory progress, despite the numerous opportunities given to him.
28. These findings of Nicholls J with respect to the “Mirvac network” are significant, as the parties who in the FCCA Proceedings were said to constitute this network of collusion, as best can be ascertained, include the third to tenth respondents in the present proceeding, among others.
29. Having made such factual findings and after setting out the relevant legislation, Nicholls J concluded at [251] that the applicant’s allegation that UTS had breached ss 9, 11, 17, 18C and 27 of the RD Act, and ss 22(2) and 42 of the DDA should be dismissed.
30. On 1 May 2018, the applicant sought to file in this Court a notice of appeal from the FCCA Proceedings. This was outside the 21 day period prescribed by r 36.03(a) of the 2011 FCRs. While accepting the applicant’s explanation for the delay as a result of various medical issues, UTS opposed the grant of leave on the basis that “such an appeal could not realistically succeed”.
31. In refusing to extend time, Rares J considered and agreed with the primary relevant findings of fact made by the primary judge. In particular, Rares J rejected at [9]-[11] what his Honour described as the applicant’s “elaborate conspiracy theory”:
    9. Mr Kitoko developed an elaborate conspiracy theory that his Honour described as “fanciful”, for reasons which appear to me to be insusceptible of attack on the appeal. The alleged conspiracy involved Mr Kitoko asserting that Professor Nguyen’s conduct towards him was motivated by the professor’s reaction to Mr Kitoko’s complaint that Concord Private Hospital, at which he sought treatment, had discriminated against him in circumstances where, after the events in question, the professor’s son had been offered, and appointed to, a position.
    10. Mr Kitoko also alleged that Professor Nguyen had colluded with Mirvac, against which Mr Kitoko had brought compensation proceedings based on his accident in Broadway shopping centre that the District Court of New South Wales ultimately dismissed. The Court of Appeal of the Supreme Court of New South Wales dismissed Mr Kitoko’s appeal from the decision. His Honour said:

“On their face, such assertions of collusion by individuals across a number of large and separate organisations, and in the circumstances presented, simply in order to humiliate or victimise Mr Kitoko, could be described as fanciful. However, the substance of the allegations for current purposes must arise from the evidence that is before the Court. It is here that one particular weakness of Mr Kitoko’s case is revealed.”

11. After examining those allegations in detail, his Honour found that Mr Kitoko’s conspiracy theory was fanciful. I agree.
32. At [28]-[30], Rares J stated his conclusions with respect to the application for an extension of time:
    28. The draft notice of appeal sets out numerous findings of fact that Mr Kitoko wishes to challenge as erroneous. He has appeared and ably represented himself and put all of the arguments that could be put, for the purposes of seeking to establish that there was sufficient merit to warrant his case being granted leave.
    29. Essentially, Mr Kitoko is seeking to challenge virtually all of the trial judge’s findings of fact at which he arrived after seeing and hearing witnesses, including Mr Kitoko, based on, essentially, Mr Kitoko’s interpretations or assertions of those errors. Mr Kitoko did not point to any incontrovertible facts, uncontested testimony or other objective evidence of what had occurred that showed any possibility of error by the trial judge in his findings of fact. Nor did Mr Kitoko identify any basis on which he could contend that his Honour’s findings were susceptible to an attack as “glaringly improbable” or “contrary to compelling inferences”. In my opinion, there is no reasonable prospect that any such challenges could possibly succeed: see Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at 558–559 [43] per French CJ, Bell, Keane, Nettle and Gordon JJ.
    30. In those circumstances, I am satisfied that Mr Kitoko’s proposed appeal appears to be flimsy and weak on its merits and not such as would justify a grant of an extension of time. I order that the application for an extension of time be dismissed with costs.

(d) NSW Supreme Court proceedings

33. On or about 12 October 2017, before the FCCA Proceedings were determined, the applicant commenced proceedings against the first respondent in the NSW Supreme Court, seeking judicial review of the first respondent’s decision to discontinue his PhD candidature, on the grounds that it was in breach of the UTS Student Rules, and was tainted by fraud, collusion and corruption (NSWSC Proceedings).
34. On 11 July 2018, Harrison AsJ upheld a notice of motion brought by the first respondent seeking summary dismissal of the proceedings with costs: Kitoko v University of Technology Sydney [2018] NSWSC 1007. Of particular note, Harrison AsJ concluded that grounds 2A, 2B and 2C of the application for judicial review should be dismissed on the basis of issue estoppel. These grounds concerned allegations of fraud, collusion and corruption by UTS and other persons not named as respondents, and allegations that Professor Nguyen had unfairly imposed two unsatisfactory progress reviews and discontinued the applicant’s PhD. At [90]-[91], Harrison AsJ set out her conclusions concerning issue estoppel:
    90. 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.
    91. 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.
35. The final ground of review was that the respondent had breached the UTS Student Rules. At [100]-[110], Harrison AsJ comprehensively rejected the applicant’s case, concluding that the arguments “concerning breaches of the UTS Student Rules are hopeless” (at [111]). Her Honour also rejected any argument that the applicant had not been afforded procedural fairness.
36. On 23 October 2019, after granting an extension of time for the applicant to file a notice of appeal from Harrison AsJ, Wright J dismissed the applicant’s appeal from the primary judge’s decision with costs: Kitoko v University of Technology Sydney [2019] NSWSC 1437.

The applicant’s pleaded substantive case summarised

37. Turning now to the present proceeding, the applicant seeks multiple forms of relief through various causes of actions against ten respondents. All of the respondents, except for CMRC, have in some form or another been involved (but not necessarily as parties) in the previous administrative or judicial proceedings outlined above. CMRC is a community organisation operating in Western Sydney, for which the applicant was a non-salaried independent board member. As will emerge, the causes of action in the present proceeding substantially rely upon the same factual matrix, namely the discontinuance of the PhD candidature and the 2010 Broadway Incident, which were the subject of the above mentioned proceedings.
38. The ASOC in the present proceeding is 91 pages in length. In their respective written outlines of submissions in support of their interlocutory applications, the respondents submitted that the applicant’s pleadings in the ASOC are “a confusing mess”, “unintelligible”, “non-sensical and embarrassing”, and “manifestly hopeless”. While acknowledging that the applicant in the present proceeding is self-represented, I agree that deciphering the applicant’s causes of actions, and more particularly the bases for those causes of action, is a challenging task. However, I will now attempt briefly to summarise the applicant’s causes of action, noting that this summary will not capture every allegation made by the applicant within those causes of action.

(a) Breach of contract

39. The applicant alleges that the first and/or second respondents, in collaboration with the other respondents, have breached the applicant’s contractual arrangement with UTS, which are said to have arisen in December 2009 (see ASOC at [49]-[54]). It is alleged that there were express or implied terms under that contractual arrangement to the effect that the first and/or second respondents had to comply with the following matters (see ASOC at [32]):
    • any agreements associated with the applicant’s PhD candidature and/or research project;
    • the “Australian Code for the Responsible Conduct of Research”;
    • the “Code of Practice for Supervisors, Advisors and Research Degree Students”;
    • UTS’s Code of Conduct;
    • UTS’s Student Rules;
    • the “Graduate Research and Supervision Policy”; and
    • private law and general law relevant to the research area.
40. The alleged breaches of those terms, as best as can be understood from the ASOC, are said to arise on the bases that the first and/or second respondents:

(a) “recklessly, carelessly or negligently” appointed Professor Nguyen as the applicant’s PhD supervisor, including by failing to ensure Professor Nguyen had the “appropriate skill, competence, diligence and qualifications” to supervise his PhD and in the relevant subject area;
(b) failed to provide adequate equipment, facilities and resources for the applicant’s PhD research;
(c) abandoned the applicant’s supervision from 21 July 2014 to 7 August 2015;
(d) decision to approve the reasons given by Associate Professor Abolhasan for two successive unsatisfactory progress reports in Autumn and Spring 2014;
(e) fraudulently discontinued the applicant’s PhD;
(f) conspired or colluded with the other respondents to discontinue the applicant’s PhD candidature;
(g) failed to contribute to the development of a productive and harmonious workplace; and/or
(h) failed to make prompt disclosures of the alleged breaches of contract to the Australian Government, Australian Research Integrity Committee of the National Health and Medical Research Council (NHMRC) or the Australian Research Council (ARC).

(b) Contraventions of Australian Consumer Law

41. The applicant alleges that the respondents have committed a number of contraventions of Sch 2 of the Competition and Consumer Act 2010 (Cth), namely the Australian Consumer Law (ACL), or alternatively the now repealed Trade Practices Act 1974 (Cth) (TPA). The alleged contraventions falls into two distinct categories.
42. First, the applicant alleges the respondents have, in trade or commerce, engaged in misleading or deceptive conduct in contravention of s 18 of the ACL and/or s 52 of the TPA (see ASOC at [55]-[69]). Leaving to one side the applicant’s pleading with respect to whether the relevant alleged contravening conduct occurred “in trade or commerce”, the allegations of misleading or deceptive conduct or representations, as best can be ascertained, are said to relate to following matters:

(a) the various representations and steps taken by the first and second respondent in relation to the applicant’s PhD candidature, such as enrolment, scholarship payment and extension, funding and the approval of the topic and scope of the applicant’s research;
(b) that Professor Nguyen did not have the appropriate qualification and specialised skill to provide advice, guidance and feedback on the applicant’s PhD research;
(c) that the scope of the applicant’s research project was feasible in the relevant time period;
(d) that the relevant theories and devices used by and provided to the applicant were not “appropriate” or “specialized” for the adequate completion of the applicant’s PhD research;
(e) Professor Nguyen’s alleged conduct in abandoning supervision of the applicant’s PhD research;
(f) the reasons stated in Associate Professor Abolhasan’s letter on 15 May 2015 recommending the applicant’s PhD candidature be discontinued; and/or
(g) that UTS and the other respondents had acted in concert to carry out unlawful acts to make the scope of the applicant’s PhD research impracticable.

43. The applicant’s reliance on alleged misleading or deceptive conduct or representations with respect to the above matters is stated to have caused the applicant various forms of loss or damage, which he claims entitles him to damages and/or compensation orders under ss 236 and 237 of the ACL respectively (or alternatively ss 87 and 88 of the TPA).
44. The applicant’s pleadings with respect to this matter are largely incomprehensible. The closest the applicant comes to particularising any specific misleading representations or conduct is at [56] of the ASOC, namely that the first and second respondents “held out” the support it would give the applicant during his PhD enrolment as “appropriate”, “compatible” and “accepted and/or specialised” for the applicant’s PhD research training. Absent further particularity, it is difficult to identify the specific conduct and/or representations which are said to give rise to such contraventions.
45. Secondly, the applicant alleges the respondents have engaged in various forms of unconscionable conduct in contravention of s 21 of the ACL, s 51AB of the TPA or “for the purposes of general law” (see ASOC at [70]-[81]). While again the applicant’s pleadings with respect to this cause of action lacked clarity and particularity, it appears that the unconscionable conduct is said to arise because the respondents knew, or ought to have known during the relevant period, that:

(a) the skill and expertise of Professor Nguyen, and resources provided by UTS, were not appropriate or compatible with the applicant’s PhD research;
(b) the applicant’s PhD research training was not compatible or appropriate with his research topic, and would expose the applicant to unnecessary danger and harm, as demonstrated by the decision to discontinue the applicant’s PhD and UTS’s conduct in impairing the applicant’s PhD research; and/or
(c) the applicant did not have a reasonable standard of skill or experience in advanced mathematics and the devices required for his PhD research topic.

46. Alternatively, the applicant alleges that the respondents used the discontinuance of his PhD candidature to gain a commercial advantage, and the first and second respondents’ decision to discontinue his PhD candidature was fraudulent, “visited by serious misconduct” and “clearly deliberate; and/or at least reckless” as directed by the third, fourth, fifth and sixth respondents.
47. The applicant states that as a result of this alleged unconscionable conduct, he has suffered various forms of loss or damage, which give rise to an entitlement to damages and/or compensation orders under ss 236 and 237 of the ACL (or alternatively ss 82 and 87 of the TPA).

(c) Tort of conspiracy

48. The applicant alleges that all respondents (particularly the first to seventh respondents), agreed and acted together in concert, knowingly and intentionally, to wrongfully cause the first and second respondent to discontinue the applicant’s PhD candidature (see ASOC at [82]-[85]). The particulars of this conspiracy appear to be detailed at [30]-[31] of the ASOC, but are not reproduced here to avoid repetition with the summary of the applicant’s affidavit filed on 22 December 2020 at [93] below, which contains substantially the same allegations. This conspiracy was said to have been knowingly and intentionally committed to cause serious damage to the applicant, including his economic interests.

(d) Negligence

49. The applicant alleges that the first and second respondent breached their duty of care to him, amounting to negligence (ASOC at [86]-[91]). In particular, the applicant alleges that the first and second respondent owed a duty of care to provide reasonable care and supervision in advising, and providing guidance and feedback, on the applicant’s PhD research. The applicant claims that the first and second respondents breached this duty of care by:

(a) agreeing to and approving Professor Nguyen being the applicant’s PhD supervisor, and failing to warn the applicant as to the nature and risks associated with his alleged inappropriate qualifications, skills and expertise, for similar reasons to those alleged in the breach of contract claim;
(b) failing to prevent devices or equipment being purchased and supplied to the applicant which would result in the improper collection of experimental data;
(c) allowing the applicant to write a paper using the experimental data and approving/co-authoring the written paper submitted for publication on 24 March 2014;
(d) failing to warn the applicant that the devices or equipment and the paper submitted for publication on 24 March 2014 were not appropriate or specialised for the applicant’s PhD;
(e) failing to replace non-compatible devices with compatible devices;
(f) Professor Nguyen abandoning the applicant’s supervision from 21 July 2014 to 7 August 2015;
(g) approving progress reports, funding, scholarship payments and ethics clearances for the applicant’s PhD research;
(h) disclosing or leaking the letter of support by Ms Melissa Monteiro (a staff member of CMRC) provided to the second respondent in support of the applicant’s PhD enrolment application;
(i) failing to take appropriate steps to ensure the second respondent’s resources were not used for conspiring against the applicant;
(j) failing to take appropriate steps to not become involved “in the private interests” of the applicant, in the nature of a conflict of interest by colluding with the third to tenth respondents;
(k) failing to report that Associate Professor Abolhasan’s recommendation letter, and two successive unsatisfactory progress reports, were misleading;
(l) failing to disclose that the applicant’s PhD was fraudulently discontinued;
(m) failing to take appropriate steps to ensure Professor Nguyen’s official position was not used to enable his son to gain employment at CPH as a reward from the third, fifth and seventh respondents for the actions taken by Professor Nguyen against the applicant’s PhD research;
(n) victimising the applicant on the grounds of race and political conviction;
(o) failing to comply with the various documents described in the breach of contract claim, as well as “[p]rivate law and/or the general law (common law and equity)”; and/or
(p) failing to report the above mentioned matters at (a)-(o) to the Australian Government, NHMRC or ARC.

50. At [87S] of the ASOC the applicant also makes a specific allegation of negligence against a person called “Jack”, who is not otherwise identified, by his alleged conduct of advising the first and/or second respondent to falsify the minutes regarding the discontinuation of the applicant’s PhD candidature (presumably referring to minutes of the Appeals Committee meeting dated 3 August 2017 and finalised on 10 August 2017).
51. Separately in the ASOC (at [98]-[100]), the applicant alleges that the negligent conduct of the first respondent, in collusion with the other respondents, caused him to suffer psychological harm.

(e) Breach of fiduciary duty

52. The applicant alleges that his relationship with the first and second respondent, “was a fiduciary relationship in equity”, which carried obligations to “act with absolute fairness and openness” towards him as a PhD student (see ASOC at [92]-[97]). The applicant alleges that a fiduciary relationship arose by way of his trust, reliance and confidence on the first and second respondents in selecting a suitable PhD research topic. The first and second respondents are alleged to have breached this fiduciary duty through a conflict of interest, in the “pursuit or possible receipt of a benefit or gain” from the discontinuance of his PhD candidature. It is further alleged that all respondents agreed together wrongfully to request that the first and second respondents breach their fiduciary duties by discontinuing the applicant’s PhD.

Summary of relevant legal principles

53. The relevant legal principles guiding the exercise of the Court’s power to give summary judgment, to strike out pleadings, and the principles concerning abuse of process, issue estoppel and/or Anshun estoppel are not in dispute. They can be summarised as follows.

(a) Summary judgment

54. For the Court to give summary judgment in favour of an applicant under s 31A(1) or r 26.01(e) of the 2011 FCRs, the applicant bears the onus of establishing that the respondents have no reasonable prospect of successfully defending the proceeding or otherwise establishing one of the matters identified in r 26.01(1)(a)-(d) of the 2011 FCRs.
55. Conversely, for the Court to give summary judgment in favour of respondents under s 31A(2) or r 26.01(a) and (c), the respondents bear the onus of establishing that the applicant has no reasonable prospect of successfully prosecuting the proceeding (Kimber v Owners of Strata Plan No. 48216 [ 2017] FCAFC 226 ; 258 FCR 575 at  [62] ). In addition, r 26.01 expressly provides for summary judgment in other circumstances, such as where the proceeding is frivolous or vexatious or is an abuse of the process of the Court. The respondents carry the onus of establishing those matters if they are relied upon.
56. The following principles guide the exercise of the Court’s discretion under s 31A:

(a) The effect of s 31A is to lower the bar below that fixed by previous authorities for obtaining summary judgment. It is not necessary to demonstrate that a claim/defence be “hopeless” or “bound to fail” for it to have no reasonable prospects of success (s 31A(3) of the FCA Act; Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17]- [26] per French CJ and Gummow J).
(b) The Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, one which is “real, not fanciful or merely arguable” (Spencer at [25] per French CJ and Gummow J);
(c) Where the moving party establishes a prima facie case in support of summary judgment, the onus shifts to the opposing party to point to factual or evidentiary issues making a trial necessary (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] per Gordon J).
(d) Determination of an application for summary dismissal is a value judgment to be made in the particular circumstances of the case, in the absence of a full and complete factual matrix; in other words requiring a “practical judgment” of the case at hand. It does not require a “mini trial”, but rather a “critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial” (Australian Securities and Investment Commission v Cassimatis [2013] FCA 641; 220 FCR 556 at [46] per Reeves J).
(e) The Court retains a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially (Cassimatis at [50] per Reeves J).
(f) Notwithstanding that s 31A of the FCA Act sets a lower bar than previously stated for the summary determination of a proceeding, the power to enter summary judgment is not to be exercised lightly (Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ).

57. Although there is some overlap in the principles applying to summary dismissal and striking out of pleadings, there is also a central difference between the two concepts. As Wigney J said in Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629 at [96]:

Where the evidence shows that a person may have a reasonable cause of action or reasonable prospects of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Australia Ltd v FCT [2007] FCA 511; (2007) 160 FCR 298 at [47], referred to in Spencer at [23]. That said, a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries at [47].

58. The remaining grounds upon which the Court is asked to give summary judgment against the applicant under r 26.01 of the 2011 FCRs, namely that the proceedings are frivolous or vexatious, or that the proceedings are an abuse of process, are discussed below.

(b) Default judgment

59. As noted above, the applicant seeks default judgment under r 5.23(2)(c) of the 2011 FCRS against the third, fourth, sixth, seventh, eighth, ninth and tenth respondents. The applicant alleges that those respondents are in breach of Court orders in relation to the filing of documents.
60. As discussed by Flick J in Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 (as applied by Farrell J in Electrolux Home Products Pty Ltd v Delap Impex KFT [2015] FCA 62 at [24] and by Gleeson J in Deputy Commissioner of Taxation v Sibai [2015] FCA 1465 at [7]- [8]), the legal principles relating to default judgment can be summarised as follows:

(a) The power to give default judgment against a party under r 5.23(2)(c) remains discretionary, and caution must be exercised when an applicant seeks orders against a defaulting respondent.
(b) The Court’s discretionary power is enlivened if, and only if, the applicant applies to the Court for such an order, and it is established that the opposing party is in non-compliance with an order of the Court.
(c) Two circumstances which have been identified as “obvious candidates for the exercise of the power” are:

(i) “cases in which the history of non-compliance by [a party] is such as to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial with an acceptable period”; and
(ii) “cases ... in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice” to the parties

(see Lenijmar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 338 at 395-97, quoted with approval in ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577 at [26] and Speedo Holdings at [21]).
(d) The applicant bears the onus and the Court must be satisfied that the applicant is entitled to the relief claimed. An order for default judgment has the effect that the facts as alleged in the statement of claim are deemed to have been admitted by the respondent (Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2007] FCAFC 146; 161 FCR 513 at [42] per Moore, Dowsett and Greenwood JJ).
(e) For the Court to be satisfied that an applicant is entitled to the relief claimed, the Court needs to be satisfied that “each element of the relevant civil wrong involved is properly and discretely pleaded in the statement of claim” (Macquarie Bank Ltd v Seagle [2005] FCA 1239 at [24]; [2005] FCA 1239; 146 FCR 400 at 406 to 407 per Conti J; Macquarie Bank Ltd v Seagle [2008] FCA 1417 at [20] per Jagot J).
(f) In considering whether to give default judgment, the Court may have recourse to limited further evidence beyond the statement of claim, but not to evidence that would alter the claim as pleaded.

(c) Strike out

61. Pursuant to r 16.21 of the 2011 FCRs, the third to tenth respondents each seek in their respective interlocutory applications, in the alternative to summary judgment, that the applicant’s ASOC be struck out so far as it is against them. Relevantly, r 16.21 provides:

(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.

62. Rule 16.21 needs to be considered in the light of r 16.02 of the 2011 FCRs. It provides inter alia that a pleading must be as brief as the nature of the case permits; identify the issues that the party wants the Court to resolve; state the material facts on which the party relies that are necessary to give the opposing party fair notice of the case to be made against it at trial (but not the evidence by which the material facts are to be proved); not contain any scandalous, frivolous or vexatious material; not be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay; not fail to disclose, relevantly, a reasonable cause of action appropriate to the nature of the pleading; and not otherwise be an abuse of process of the Court.
63. In broad terms, the relevant legal principles guiding the exercise of the Court’s discretion under r 16.21 can be summarised as follows.
64. As stated by Moshinsky J in Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu [2017] FCA 1202 at [17] (citing McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21] per Johnson J):

... the function of pleadings is to state with sufficient clarity the case that must be met by a defendant; in this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286, 296, 302-303.

65. Furthermore, proper pleadings are of fundamental importance to achieve the overarching purpose of the Court under ss 37M and 37N of the FCA Act, namely the just, quick and cheap resolution of the real issues in the proceeding (Sadie Ville at [17] and Chandrasekaran at [101]).
66. While the respondent has no right to insist that the applicant plead every material fact, the applicant must plead the “material facts necessary for the purpose of formulating a complete cause of action, and ... it is not sufficient simply to plead a conclusion drawn from unstated facts” (McKellar v Container Terminal Management Services [1999] FCA 1101; 165 ALR 409 at [23] per Weinberg J). The material facts must be pleaded with a sufficient degree of specificity to convey to the other party the case which that party has to meet and a bare conclusion is ordinarily not a proper allegation (Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 at 235 per Beaumont J).
67. As to when a pleading is “vexatious” or likely to cause prejudice or embarrassment, Wigney J provided a helpful discussion of the relevant principles in Chandrasekaran at [103] and [105]-[107]:

103 The word “vexatious” in the context of rules such as r 16.21 is an “omnibus expression” that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing or the inclusion of which is otherwise an abuse of the processes of the Court: Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 per Starke J, with whom Crockett and Beach JJ agreed at [12]) referred to with approval in Matthews v Queensland [2015] FCA 1488 at [87]. Material in a pleading would also be considered to be vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are “obviously untenable or manifestly groundless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491–492; see also Von Reisner v Commonwealth [2009] FCAFC 97; (2009) 177 FCR 531 at [27].
...
105 A pleading is likely to cause prejudice or embarrassment, for the purposes of r 16.21(1)(d) of the Rules, if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous, vague or too general: Bartlett v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 638; ATPR 41-434 ; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; 209 IR 263 at [18]; Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; 51 ACSR 278 at [18]. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c) of the Rules.
106 A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [80], [84]. A party cannot be expected to respond to mere context, commentary, history, narrative material or material of a general evidentiary nature: Fuller v Toms at [83].
107 A pleading may also be struck out as embarrassing if it is plain that the pleading party cannot lawfully call any evidence at the hearing to substantiate the pleading: J C Techforce Pty Ltd v Pearce [1996] FCA 599; 138 ALR 522 at 531 .

68. Relevant to the applicant’s causes of action which rely on the knowledge and state of mind of the relevant respondents, as well as the allegations that the first and second respondents engaged in misleading and deceptive conduct, the following principles were identified by Perry J in Australian Parking and Revenue Control Pty Ltd v Reino International Pty Ltd [2016] FCA 744 at [19]:

(5) A party who pleads a condition of mind, including knowledge, must state in the pleading particulars of the facts on which the party relies: FCR r 16.43(1) and (3). Equally, if a party pleads that another party ought to have known something, particulars of the facts and circumstances on the basis of which it is said that that other party ought to have acquired the knowledge must be pleaded: FCR r 16.43(2). For example, it might be pleaded that a party knew or ought to have known a given fact because it received a particular communication: Young Investment Group at 540 [10].
(6) Furthermore, in line with the seriousness of such an allegation, a party who pleads (relevantly) misrepresentation must state in the pleading particulars of the facts on which the party relies: FCR r 16.42. As Foster J held in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [1998] FCA 525; (1998) 42 IPR 1 at 3 with respect to a statement of claim alleging misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (Trade Practices Act) (the predecessor provision to s 18 of the ACL):

In this connection it is important to remember that, as Fox J said in Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348 ; 35 ALR 79 at 86:

Section 52(1) is a comprehensive provision of wide impact, which does not adopt the language of any common law cause of action. It does not purport to create liability at all; rather does it establish a norm of conduct, failure to observe which has consequences provided for elsewhere in the same statute, or under the general law.

It necessarily follows that when the section is sought to be used in litigation as the foundation of a cause of action or claim for some specific form of relief, it is imperative that the factual basis upon which the section is alleged to be brought into play must be stated with appropriate clarity in a statement of claim. This is, of course, a fundamental principle of pleading.

69. The following observations by Weinberg J in McKellar at [25]-[26] are also relevant to the applicant’s allegations of misleading or deceptive conduct (emphasis added):
    25. For a statement of claim to disclose a cause of action it must set out the material facts which give rise to the cause of action. A cause of action for misleading and deceptive conduct is not established unless the statement of claim sets out the circumstances which gave the representation its deceptive and misleading character at the time it was made. Mere non-fulfilment of a statement as to a future matter does not establish that the statement was relevantly misleading and deceptive: Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd.
    26. When a claim is made under s 82 of the [TPA], the gist of the cause of action being damage, the statement of claim must allege the damage suffered, and that it was suffered by reason of the contravention of the Act. Material facts must be pleaded which show the required causal link between any alleged contravention of the Act, and any damage to the applicant. A deficient pleading, namely one that does not plead relevant material facts, cannot be saved by particulars. It is not sufficient simply to allege loss and damage as a result of alleged contraventions of the Act; it is necessary to identify a causal connection between the impugned conduct and such loss as is said to have been suffered by the applicants: Bond Corp Pty Ltd v Thiess Contractors Pty Ltd [1987] FCA 84; (1987) 14 FCR 215 at 222; 71 ALR 125 per French J, cited with approval by Burchett J in Multigroup Distribution Services Pty Ltd and by Goldberg J in Mitanis.
70. Finally, it is important to note that the power to strike out pleadings is discretionary and should be employed sparingly (Chandrasekaran at [110], citing Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175 per Sheppard J).

(d) Abuse of process, issue estoppel and Anshun estoppel

(i) Abuse of process

71. As Wigney J observed in Chandrasekaran at [112], the concept of abuse of process is flexible and insusceptible of a formulation which comprises closed categories. It is unnecessary to consider the full breadth of the doctrine because only one aspect of it is relied upon in the present proceedings. That aspect concerns the making of a claim or the raising of an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding (see UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [43]). As Gageler J observed in that case at [66], the rationale underlining this aspect of abuse of process is that there should be finality in litigation and that “a party should not be twice vexed in the same matter”.
72. Abuse of process involving re-litigation of an issue the subject of a final judicial determination by another court was recently considered by the Full Court in Fortescue Metals Group v Warrie [2019] FCAFC 177; 273 FCR 350 (particularly per Robertson and Griffiths JJ at [372]-[380] and White J at [560]-[561]).
73. Generally speaking, “it is an abuse of process for a litigation to seek to relitigate an issue decided adversely to it in earlier proceedings” (Fortescue Metals Group at [561] per White J). However, as stated by Robertson and Griffiths JJ in Fortescue Metals Group at [376], whether or not the relitigation of an issue rises to the level of abuse of process:

... requires a consideration of all the circumstances when viewed against two primary concepts, being the principle of finality of judicial determination and the second being public confidence in the administration of justice. Regard may need also to be given to oppression and unfairness to the other parties in the litigation. Ultimately, the Court must assess and evaluate whether the relevant conduct which is said to constitute an abuse of process brings the administration of justice into disrepute in the eyes of “right-thinking people”, which is largely an evaluative exercise.

74. State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aus Torts Reports 81-423 (at 64, 089) contains an oft-cited (non-exhaustive) list of factors relevant to the determination of whether re-litigation amounts to an abuse of process, which (as reproduced and varied by French J in Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [70]), are as follows:

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings;
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

75. While these factors provide a useful framework for the exercise of the court’s discretion in the particular circumstances of a case, “the lodestar for a court’s assessment of what constitutes an abuse of process and the appropriate remedy that should follow is the proper administration of justice, informed by the need to avoid injustice and unfairness” (Fortescue Metals Group at [380] per Robertson and Griffiths JJ and see also Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393-4 per Mason CJ, Deane and Dawson JJ).
76. I move now to the two categories of estoppel said to arise in the present proceeding.

(ii) Issue estoppel

77. The essence of issue estoppel was recently identified by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [21]- [22] per French CJ, Bell, Gageler and Keane JJ as the principle that “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”. For an issue estoppel to arise in a particular case, it is necessary to demonstrate that:

(1) the same question has been decided;
(2) the judicial decision which is said to create the estoppel was final; and
(3) the parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies (Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [21]).

78. The following passage in Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 at 276, as approved in Kuligowski at [40], is authoritative (emphasis added):

[A]s 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 ... The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.

79. Although there may be special constitutional and statutory considerations which are relevant to the issue whether the doctrine of issue estoppel applies to the Federal Administrative Appeals Tribunal (see Commonwealth v Snell [2019] FCAFC 57; 269 FCR 18 at [41]- [52]), current law suggests that the doctrine may apply to a State tribunal (such as NCAT) “where it has jurisdiction to decide finally a question arising between parties” (see, for example, Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at [43] per Gibbs J, quoted with approval in Kuligowski at [22]; see also Lambidis v Commissioner of Police (1995) 37 NSWLR 320 at 323-4 per Kirby P and Morris v Riverwild Management Pty Ltd [2011] VSCA 283; 38 VR 103 at [62] ff per Weinberg JA).

(iii) Anshun estoppel

80. The primary elements of Anshun estoppel were identified by the plurality (Gibbs CJ, Mason and Aickin JJ) in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 602-3:

... we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

81. Anshun estoppel, as distinct from issue estoppel, was described in Tomlinson at [22] as operating (footnotes omitted):

... to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.

82. In this way, Anshun estoppel can be seen as an extension of the doctrine of issue estoppel, by operating to prevent a new claim being brought which, if it succeeds, will result in a judgment which conflicts with an earlier judgment (Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; 259 CLR 212 at [27] per French CJ, Kiefel, Keane and Nettle JJ). Unlike issue estoppel, Anshun estoppel does not require a mutuality of parties between the two proceedings (Robinson v Deep Investments Pty Ltd [2018] FCAFC 232; 364 ALR 305 at [138] per Jagot and Colvin JJ).
83. It should also be noted the fact the applicant is a self-represented litigant “of itself...does not mean that special circumstances apply such that Anshun estoppel ought not operate” (Sahin v National Australia Bank Ltd [2012] VSCA 317 at [98] per Ferguson AJA, as cited in Tutos v State of Victoria [2019] VSC 673 at [34] per Moore J).
84. The following passages in Tomlinson at [24]-[26] per French CJ, Bell, Gageler and Keane JJ helpfully explain the interaction between the concept of abuse of process with the principles governing issue estoppel and Anshun estoppel (footnotes omitted, emphasis added):

... The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.

25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.

The parties’ evidence summarised

(a) The applicant’s evidence

85. The applicant filed a total of 11 affidavits either in support of his four interlocutory applications or in response to the interlocutory applications of the respondents.
86. On 25 September 2020, the applicant deposed that he served, by way of emails on 21 August 2020 and 9 September 2020, all of the respondents with “all the Court’s correspondences”. The applicant also deposed that he served, by way of express post on 12 September 2020, the third, fifth, seventh, eighth, ninth and tenth respondents with “all the Court’s correspondences”, and that the third, fifth, seventh, eighth and ninth respondents had “ignored to act”.
87. On 2 October 2020, the applicant deposed that he served, by way of express post on 12 September 2020, the third, fifth, seventh, eighth, ninth and tenth respondents with “all correspondents (sic) from the court”, and that as at the time of the first case management hearing on Tuesday 29 September 2020, the applicant had not received a notice of appearance or acting from the third and eighth respondents.
88. On 13 October 2020, the applicant deposed that he served, by way of express post on 12 September 2020, the third and eighth respondents with the originating application and statement of claim filed 18 August 2020, and the email dated 9 September 2020 referred to at [86] above. The applicant also deposed that he similarly served the third and eighth respondents with the orders dated 29 September 2020, and the amended originating application and ASOC, on 6 and 7 October 2020 respectively.
89. On 26 October 2020, the applicant deposed the same matters regarding service of his affidavits affirmed on 2 and 13 October 2020 on the third respondent.
90. On 16 November 2020, the applicant deposed that he served the third respondent, by way of express post on 2 October 2020, a copy of the interlocutory application filed on 27 October 2020 and the supporting affidavit filed on 28 October 2020 (being the affidavit affirmed on 26 October 2020).
91. On 18 November 2020, the applicant deposed that as at 17 November 2020, the third, fourth and ninth respondents had failed to file and serve a defence in accordance with order 4 of the orders dated 29 September 2020.
92. The applicant’s affidavit affirmed 14 December 2020 (and filed on 22 December 2020) appears to be the primary affidavit providing the factual basis for his ASOC, and it is therefore necessary to summarise it in more detail. However, as will become evident, many of the matters in this affidavit are subjective assertions in support of the claimed relief, rather than stating factual matters. Moreover, the serious factual allegations against the respondents and non-parties are of a kind that must be supported by clear evidence, which the applicant has failed to provide to this point. As will become apparent from the summary below of this affidavit, it contains numerous allegations which are fanciful and, in some cases, embarrassing and scandalous.
93. Against that background, after outlining certain factual matters in relation to the applicant commencing his PhD at UTS, the applicant stated in his 14 December 2020 affidavit that:

(a) Professor Nguyen was not appropriately qualified or did not have specialised skill or expertise to supervise the applicant’s PhD, of which the applicant was unaware when undertaking his PhD research.
(b) The applicant reported to Professor Nguyen that the supplied devices for the applicant’s experimental data collection did not meet the expectation of advanced research and/or was not specialised or compatible when applied to his PhD research.
(c) Professor Nguyen supplied two “Non-contact EPIC electrodes” to the applicant for experimental research and approved the collection of data and the writing of papers using such devices.
(d) Professor Nguyen colluded with the third to tenth respondents to discontinue the applicant’s PhD research.
(e) As a result of the failure of mediation in relation to the District Court Proceedings, the fifth respondent falsified the original CCTV footage of the Broadway Incident on 5 October 2010.
(f) Knowing the applicant’s mental disability, the fourth and sixth respondents organised for Julia Adrian Conti to give false evidence and colluded, alongside the third and fifth respondents, with Elkaim DCJ to dismiss the applicant’s District Court Proceedings, which occurred in circumstances where these respondents, in collusion with Elkaim DCJ, knew that the applicant was “suffering a mental disability”.
(g) That various respondents had worked in concert to remove the alleged “original version” of the CCTV footage from inside the applicant’s home.
(h) That Professor Nguyen’s son had sexually harassed the applicant’s wife, and that during that alleged incident private information was collected which, in concert with various respondents, was used to discontinue his wife’s enrolment at the University of Western Sydney.
(i) That officers of UTS leaked confidential information of the applicant to the fourth and sixth respondents, including Ms Monteiro’s letter of support. Having access to Ms Monteiro’s letter, and discovering CMRC (the tenth respondent), the applicant alleges Ms Monteiro was pressured into collaborating with the other respondents.
(j) That a person named Dativah (who is otherwise not identified) was invited into UTS’s premises, and witnesses and professional photographers concocted a scenario in which the applicant would sexually assault Dativah, giving a reason for UTS to discontinue his PhD candidature. The applicant alleged that, as part of this scheme, his movements were tracked by mobile phone.
(k) That Ms Julia Owen, the federal parliamentary member for Parramatta (noting that it appears the applicant is referring to Ms Julie Owens), colluded with the fourth, sixth and tenth respondents to place Dativah at UTS and pressure Professor Nguyen to discontinue the applicant’s PhD candidature. The applicant states two witnesses are available to give evidence on this matter to the Court.
(l) That Professor Nguyen had abandoned supervision of the applicant and had restricted access to facilities and services to complete his thesis.
(m) That Professor Nguyen had physically threatened the applicant during a meeting on 18 February 2015.
(n) That Professor Nguyen and UTS knew that the EPIC sensors purchased for the applicant were inappropriate for his PhD research.
(o) That the applicant did not attend a meeting during March-April 2015 due to fear of being attacked or humiliated by Professor Nguyen.
(p) That on 3 June 2015, an officer at UTS approved payment of $500 for proofreading of the applicant’s thesis.

94. In his affidavit dated 25 January 2021, the applicant said that it had been filed “in reply to the respondents for further evidences in support to the interlocutory application for default judgment filed on 18 November 2020”. The affidavit does not appear to raise any new factual matters, but rather merely lists the affidavits upon which the applicant relies in relation to each of his interlocutory applications.
95. The applicant also swore a second affidavit on 25 January 2021, which is said to be “in support to the interlocutory application for default judgment filed on 11 December 2020”. After deposing to matters concerning that interlocutory application, relevant orders made by the Court and the applicant’s affidavit filed on 22 December 2020, the applicant annexed to this affidavit various correspondence, filed documents and orders of the Court in relation to the third, fourth, sixth, seventh, eighth and tenth respondents.
96. On 27 January 2021, the applicant affirmed an additional affidavit in support of his interlocutory application filed on 7 December 2020 for summary judgment against each of the respondents. After referring to his affidavit filed on 22 December 2020, the applicant annexed various documents (totalling 1055 pages of annexures) in support of his interlocutory application for summary judgment, including:
    • various orders and filed documents in relation to this proceeding;
    • the applicant’s educational records;
    • the applicant’s curriculum vitae;
    • the applicant’s doctoral proposal;
    • various documents in relation to the applicant’s PhD candidature and enrolment, including various UTS policies and procedures;
    • various documents relating to Professor Nguyen’s published papers, the UTS devices provided to the applicant for his PhD research and a paper co-authored by the applicant and Professor Nguyen;
    • a copy of Elkaim DCJ’s reasons for judgment in the District Court Proceedings, a copy of Julia Adrian Conti’s affidavit dated 6 August 2015, a copy of the CCTV footage before the District Court and a Sydney Morning Herald publication;
    • subpoenas and related correspondence from 2014 in relation to the District Court Proceedings;
    • the applicant’s satisfactory PhD progress reports, scholarship applications and related documentation, a doctoral assessment dated 15 August 2011, published papers by the applicant, a research ethics application dated 31 October 2012, and documents related to the extension of his PhD candidature and scholarship;
    • documents and correspondence relating to the attempted submission of the applicant’s PhD thesis in October-December 2014; and
    • the unsatisfactory progress reports from Autumn and Spring 2014, correspondence relating to meetings and the scheduling of meetings between the applicant and UTS in February-March 2014, documents relating to the purchase of the “EPIC sensor” by UTS, his application for extension of PhD candidature dated 13 March 2015, and other correspondence leading up to the discontinuation of the applicant’s PhD candidature.
97. The applicant sought and obtained leave to rely upon an affidavit dated 1 April 2021. Parts of that affidavit were not admitted after the Court upheld objections based upon form and the material being argumentative. Various annexures to that affidavit were put into evidence, including discharge summaries from two hospitals in relation to the applicant’s recent health problems, together with a discharge summary from a hospital which had treated his daughter. The applicant submitted that the affidavit provided further evidence in support of his claims of conspiracy, “unconsciousness conduct” and negligence. I do not accept that submission. Neither the affidavit nor the annexures lend any evidentiary support to those claims.

(b) The respondents’ evidence summarised

98. The first and second respondents relied on an affidavit by Mr Alexander Donley, affirmed 24 November 2020, in support of their interlocutory application. Mr Donley is a solicitor employed by Barry Nilsson Lawyers, who have represented the first and second respondents in legal proceedings brought by the applicant since May 2016.
99. After clarifying the names and positions of several employees of UTS who constitute the second respondent, Mr Donley described the various proceedings brought against the first respondent by the applicant, as summarised above. Mr Donley also annexed to his affidavit the pleadings, affidavits, submissions and other relevant documents in the FCCA Proceedings and NSWSC Proceedings, with the object of supporting the first and second respondents’ submission concerning “the issues of fact [which] have been determined finally” either by the FCCA or NSW Supreme Court. I accept Mr Donley’s evidence.
100. The third and fourth respondents relied on an affidavit by their instructing solicitor, Mr Malcom John Cameron, affirmed on 7 December 2020. Mr Cameron deposed to matters concerning the typographical error in the third respondent’s name and Mr Cooper’s involvement in the District Court Proceedings in support of its application for name changes. Mr Cameron also described the previous litigation involving the applicant and third and fourth respondents. I accept Mr Cameron’s evidence.
101. The fifth respondent relied on an affidavit by its instructing solicitor, Ms Lesley Maree Woodmore, affirmed on 25 November 2020. Ms Woodmore described the previous litigation involving the applicant and the fifth respondent, namely the litigation concerning the Broadway Incident, as well as other litigation involving the applicant, as summarised above. I accept Ms Woodmore’s evidence.
102. The sixth respondent relied on an affidavit by its instructing solicitor, Ms Bronti Lindsay Ness, sworn on 1 December 2020. Ms Ness deposed to sending a letter to the applicant on 6 October 2020 inviting the applicant to change the name of the sixth respondent to “DLA Piper Australia”, and the response from the applicant refusing to change the name, a copy of both of which were annexed. Ms Ness also described the previous litigation involving the applicant and sixth defendant, as well as correspondence between the sixth respondent and applicant, initiated on 12 November 2020, inviting the applicant to discontinue the current proceedings as they were likely to be summarily dismissed. It was pointed out in that letter that the applicant’s allegations against the sixth respondent were serious claims which were unsubstantiated and could never be substantiated, were non-sensical, embarrassing and liable to be struck out and raised facts which were contrary to those determined in the previous litigation. In his reply letter dated 19 November 2020, the applicant claimed that he only became aware of the conduct of the sixth respondent after judgment was delivered in the FCCA Proceeding. In a letter dated 23 November 2020, the sixth respondent’s solicitors invited the applicant to indicate relevant matters concerning his belated knowledge of the sixth respondent’s conduct. Ms Ness deposed that, as at the date of her affidavit, the applicant had not responded to these requests. Despite being afforded an opportunity to do so, the applicant provided no explanation for the failure to respond to the sixth respondent’s reasonable request during the course of the oral hearing. I accept Ms Ness’s evidence.
103. The seventh and eighth respondents relied on an affidavit by their instructing solicitor, Mr Andrew Lionel Bridges-Webb, sworn on 24 November 2020. Mr Bridges-Webb described the previous litigation involving the applicant and the seventh and eighth respondents, including the NCAT Proceedings as summarised above.
104. A further affidavit of Mr Bridges-Webb was filed on 21 December 2020. Mr Bridges-Webb stated that the seventh and eighth respondents relied upon various decisions of NCAT, the FCCA, the NSW District Court and NSW Supreme Court in support of their interlocutory application, as well as submissions filed in those proceedings. Mr Bridges-Webb also explained the circumstances in which sealed copies of the seventh and eighth respondents’ interlocutory application and supporting affidavit were served on the applicant after 24 November 2020, namely issues involving payment of relevant filing fees by credit card, notwithstanding that the documents had been emailed to the Court for filing on 12:29 pm on 24 November 2020 (noting that it appears 24 September 2020 has incorrectly been stated as the relevant date in the affidavit). Mr Bridges-Webb noted that unfiled copies of the interlocutory application were served on the applicant at 4.48 pm on 24 November 2020. Mr Bridges-Webb explained that this appeared to be the basis of the applicant’s interlocutory application dated 13 December 2020 for default judgment against the seventh and eighth respondents. I accept Mr Bridges-Webb’s evidence.
105. The ninth respondent filed an affidavit by its instructing solicitor, Mr Daren Curry, affirmed on 24 November 2020 in support of its interlocutory application. Mr Curry deposed to the involvement of UNSW Global Pty Ltd and Mr Thomson Cooper in the preparation of an expert report in the District Court Proceedings, and that Mr Cooper did not alter or request another person to alter the CCTV footage admitted into evidence in those proceedings. Mr Curry also deposed to correspondence between the applicant and the ninth respondent concerning a request for further and better particulars, and the circumstances in which the ninth respondent’s defence was filed late on 18 November 2020, including that a response for further and better particulars was not provided by the applicant until 4.17 pm on 17 November 2020. I accept Mr Curry’s evidence.
106. The tenth respondent relied upon an affidavit by its instructing solicitor, Ms Lucy Catherine Rooney, sworn on 24 November 2020. Ms Rooney annexed copies of previous decisions concerning the applicant and the respondents in the present proceeding. I accept Ms Rooney’s evidence.

Consideration and determination

107. It is convenient first to consider the respondents’ interlocutory applications for summary judgment. If they are successful, they will necessarily dispose of the applicant’s interlocutory applications seeking default and summary judgments (see r 5.23(2)(c) of the 2011 FCRs).
108. To avoid unnecessary duplication, I will deal with each of the respondents’ interlocutory application together, as applicable to each cause of action brought by the applicant in the present proceeding.

(a) Breach of contract

109. As summarised at [39]-[40] above, the applicant claims that the first and second respondents, in collusion or conspiracy with the other respondents, have breached various terms of the claimed contractual arrangement between the applicant and UTS concerning his PhD candidature. For the following reasons, I find that such claims are precluded by issue estoppel, Anshun estoppel and/or abuse of process so far as they seek to re-litigate issues of fact already finally determined in the FCCA Proceedings and NSWSC Proceedings, and otherwise have no reasonable prospects of success.
110. The allegations of breach of contract as against the first respondent are not maintainable because they rely upon factual matters already determined adversely to the applicant by Nicholls J in the FCCA Proceedings. In essence, the breach of contract claims boil down to allegations that Professor Nguyen lacked the appropriate expertise to supervise the applicant’s PhD research and then subsequently “abandoned” his supervision, that the applicant was provided with inadequate equipment, and that the respondents somehow colluded to punish the applicant for bringing the District Court Proceedings by discontinuing his PhD candidature.
111. These factual matters were all determined adversely to the applicant by Nicholls J in the FCCA Proceedings. In particular, Nicholls J found that the applicant’s PhD candidature was discontinued as a consequence of his own lack of progress, not any improper conduct on behalf of the first or second respondents acting in collusion with other respondents (at [192]-[193] and [219]). This finding was itself based on detailed factual findings at [17]-[50], [95]-[96], [109]-[127], [138]-[158] and [160]-[184] concerning the conduct of the first and second respondents in relation to the applicant’s PhD candidature.
112. As noted above, in refusing to extend time to appeal, Rares J held that there was no reasonable prospect that any of the applicant’s proposed challenges to the primary judge’s findings of fact would succeed. These factual findings of fact by Nicholls J are findings which were made in a final judicial determination. Having regard to these factual findings made in proceedings in which both the applicant and the first respondent were parties, I consider that they attract the principles of issue estoppel as outlined above. Adding more respondents to the present proceeding does not overcome this fundamental difficulty for the applicant. In the alternative, I also accept the first respondent’s submission that the breach of contract claims are not maintainable because of Anshun estoppel and/or abuse of process.
113. As against the second respondent, the breach of contract claims are precluded by Anshun estoppel and/or abuse of process. All of the claims made by the applicant against the second respondent are “inextricably linked” with matters which were finally determined in the FCCA and/or NSW Supreme Court. Those claims ought reasonably to have been raised in those proceedings (Tomlinson at [22]). The Anshun estoppel doctrine has particular application to the second respondent as it consists of UTS employees, including Professor Nguyen and Associate Professor Abolhasan, who were central to the applicant’s factual and legal allegations in the FCCA Proceedings.
114. As against the third to tenth respondents, the breach of contract claims constitute an abuse of process. As the High Court said in Tomlinson, abuse of process “is inherently broader and more flexible than estoppel” (at [24]). Therefore, even though the third to tenth respondents were not parties to the FCCA Proceedings and NSWSC Proceedings, abuse of process may still arise where re-litigation of an issue would be “unjustifiably oppressive” or “manifestly unfair” to a party or “would bring the administration of justice into disrepute” (Tomlinson at [25]; PNJ v R [2009] HCA 6; 252 ALR 612 at [3]).
115. All of the causes of action advanced by the applicant in the current proceedings against the third to tenth respondents are based on allegations of conspiracy or collusion with the first and second respondents. These allegations substantially rely upon the same factual matrix advanced in the FCCA Proceedings and NSWSC Proceedings. I accept the respondents’ submissions that it would be “unjustifiably oppressive” and would “bring the administration of justice into disrepute” to allow the re-litigation of these factual allegations which were finally determined in both the FCCA Proceedings (see at [72]-[76], [97]-[104], [188], [193]-[201] and [217]-[218]) and the NSWSC Proceedings. Any complaint about the extent of the alleged conspiracy ought to have been raised in those earlier proceedings, and the addition of new respondents in the present proceeding amounts to no more than a “collateral attack” on those findings.
116. The applicant has not satisfied me that there is any good reason why the matters which he now raises in the ASOC could not have been raised in the previous proceedings. In particular, it is notable that the applicant acknowledged in oral address that he failed to respond to the sixth respondent’s reasonable requests that he particularise his claims against the sixth respondent and the circumstances relating to his claimed belated knowledge of the sixth respondent’s conduct. No independent evidence has been proved by the applicant to support his claim that his failure to respond was because of his “mental issues” (see [132] below).
117. I reject the applicant’s reply submissions that the doctrine of abuse of process does not apply to the FCCA Proceedings because the issues determined were not identical to the current proceeding, that decision was procured by fraud, or the fact finding role of the FCCA was strictly limited. Even though the causes of action in the FCCA Proceedings were different to the current proceeding, the factual matrix underlying that proceeding was substantially the same and it was finally determined against the applicant. Furthermore, the applicant has not properly and adequately particularised many of his claims and assertions, not the least being his serious allegation of fraud in relation to the FCCA’s decision.
118. Issue estoppel also applies to some of the respondents, as follows:

(a) To the extent the allegations in this proceeding concern the alleged falsification of the CCTV footage admitted into evidence in the District Court Proceedings, such allegations are not maintainable against the third and fifth respondents because of issue estoppel. These allegations were comprehensively dismissed in the District Court Proceedings (see [13]-[16] above), and the applicant has not pointed to anything which casts doubt on such findings in the present proceeding.
(b) The allegations in the present proceeding concerning matters already finally determined in the NCAT Proceedings relating to the role of SLHD and Dr Lord in the District Court Proceedings are not maintainable against the seventh respondent. NCAT, the NCAT Appeal Panel and the NSW Supreme Court comprehensively dismissed those allegations (see [17]-[18] above).

119. Finally, to the extent that any factual allegations in relation to the breach of contract claim have not been finally determined by the FCCA Proceedings, NSWSC Proceedings or the NCAT Proceedings, they have no reasonable prospects of success. The applicant cannot avoid the critical finding of Nicholls J that his PhD was discontinued due to his own lack of progress (at [192]-[193] and [219]), which is fatal to his breach of contract claims. Furthermore, the allegations of collusion between the respondents can be, and have been, fairly described as “fanciful”. The claims are based on broad and sweeping allegations which lack both specificity and any inherent credibility.
120. Accordingly, the first to tenth respondents’ interlocutory applications for summary judgment under s 31A of the FCA Act and/or r 26.01 of the 2011 FCRs should be upheld insofar as they relate to the breach of contract claims.

(b) Contraventions of Australian Consumer Law

121. As summarised at [42]-[44] above, the applicant alleges various contraventions of s 18 of the ACL or alternatively s 52 of the TPA, primarily against the first and second respondents. As submitted by the first respondent, the applicant’s misleading and deceptive conduct case contains the following central allegations:

(1) Professor Nguyen lacked the appropriate qualifications and training to supervise the applicant’s PhD or abandoned the applicant;
(2) UTS “held out” the support it would give the applicant during his PhD enrolment as “appropriate”, “compatible” and “reasonably accepted and/or specialised” for the applicant’s PhD research training; and
(3) UTS failed to prevent the EPIC device being supplied to the applicant.

122. Again, as against the first respondent, this claim is not maintainable. It is based on the same material facts as the breach of contract case, and therefore gives rise to issue estoppel and/or abuse of process. These material facts have already been finally determined in the FCCA Proceedings and cannot be re-litigated in this forum. The generalised allegations of “corruption” and “unlawful acts” by the respondents which are made in relation to this cause of action, insofar as they are intelligible, were also wholly rejected by Nicholls J and cannot be maintained in the present proceeding.
123. In relation to the second to tenth respondents, for the same reasons as the breach of contract claim, the doctrines of Anshun estoppel and/or abuse of process apply such that the applicant’s cause of action in misleading or deceptive conduct cannot be maintained.
124. Even if the applicant’s allegations as against any of the respondents was not estopped or found to be an abuse of process, they have no reasonable prospects of success. The applicant has not pleaded with sufficient clarity the “circumstances which gave the representation its deceptive and misleading character” (McKellar at [25] per Weinberg J; Reino at [19] per Perry J). The ASOC fails adequately to particularise the representations that are said to be misleading or deceptive. Rather, the ASOC contains generalised and vague assertions about the first and second respondents’ conduct. The applicant has also failed to demonstrate any causal connection between the impugned conduct and any loss suffered (McKellar at [26] per Weinberg J), particularly in the face of Nicholls J’s critical finding that the UTS discontinued the applicant’s PhD on the basis of his lack of academic progress and not for any other reasons.
125. These matters are sufficient to dispose summarily of the applicant’s claims of misleading or deceptive conduct in relation to all the respondents. Thus it is unnecessary to determine whether or not the alleged conduct occurred “in trade or commerce”, as required by both s 18 of the ACL and/or s 52 of the TPA.
126. The applicant’s unconscionable conduct cause of action (see [45]-[47] above) relies upon the same alleged facts as his breach of contract claims. Thus, for similar reasons, it too must fail on the basis of issue estoppel, Anshun estoppel and/or abuse of process as against the first respondent. In particular, as submitted by the first respondent, Nicholls J disposed of allegations concerning Professor Nguyen’s knowledge of the adequacy of the EPIC device (at [158]-[160]); the provenance of evidence before the FCCA (at [237]); and the circumstances in which Professor Nguyen’s son obtained employment at CPH (at [194]-[196]).
127. By reason of abuse of process and Anshun estoppel doctrines, these claims are not maintainable as against the second to tenth respondents. In addition, the applicant’s pleading concerning this claim is largely unintelligible and fails to plead relevant material facts. I accept the respondents’ submissions that this claim does not have reasonable prospects of success.
128. Accordingly, the first to tenth respondents’ interlocutory applications for summary judgment under s 31A of the FCA Act and/or r 26.01 of the 2011 FCRs should be upheld insofar as they relate to the applicant’s causes of action based on contraventions of the ACL and/or TPA.

(c) Tort of conspiracy

129. The applicant’s allegation that the first to tenth respondents colluded wrongfully to cause the discontinuance of his PhD candidature (see [48] above) is an abuse of process and also attracts the doctrine of Anshun estoppel. In the case of the first respondent, issue estoppel also applies. Judge Nicholls rejected the applicant’s factual allegations of conspiracy by a “Mirvac network” involving the particular respondents in the FCCA Proceedings (see at [72]-[76], [97]-[104], [188], [193]-[201] and [217]-[218]).
130. In the present proceeding, the applicant sought to avoid this outcome by contending that the conspiracy case run before Nicholls J was confined to a conspiracy relating to racial discrimination, which reflected s 46PO of the AHRC Act. Having regard to s 18 of the Federal Circuit Court of Australia Act 1999 (Cth), this submission cannot be accepted. The effect of that provision is to confer upon the FCCA essentially the same jurisdiction as the Federal Court in matters associated with matters in which jurisdiction has been conferred by statute. This “associated jurisdiction” includes the concept of “accrued jurisdiction” (see New South Wales Department of Housing v Moskalev [2007] FCA 353; 158 FCR 206).
131. To the extent that the matters now raised by the applicant in the ASOC go beyond issues which were raised in the FCCA Proceedings, they ought reasonably to have been run by the applicant at that time. No adequate explanation has been provided by the applicant as to why he did not adopt that course in those earlier proceedings. The applicant has not provided any independent evidence to corroborate his claim in oral address (and to the extent it was asserted in his affidavit filed on 22 December 2020) that he did not raise the serious allegation of fraud earlier because he was “psychologically sick”. In particular, the applicant provided no independent medical evidence which identified the nature of any mental illness and whether it may have affected his capacity to conduct the proceedings. As noted above, the applicant has represented himself in multiple proceedings since at least 2013.
132. For similar reasons, in relation to the second to tenth respondents, this cause of action is not maintainable based on the doctrines of abuse of process and/or Anshun estoppel.
133. Accordingly, the first to tenth respondents’ interlocutory applications for summary judgment under s 31A of the FCA Act and/or r 26.01 of the 2011 FCRs should be upheld insofar as they relate to the tort of conspiracy claims.

(d) Negligence

134. The applicant’s cause of action in negligence, as summarised at [49]-[50] above, again depends on assertions that Professor Nguyen’s qualifications or skill or expertise were not appropriate to supervise the applicant, that UTS should not have provided the EPIC device for the applicant, and various allegations of conspiracy between the respondents. For the same reasons as above, these allegations are not maintainable against the first respondent due to issue estoppel and are not maintainable against the second to tenth respondents based on the principles of abuse of process and/or Anshun estoppel. The applicant’s allegation that the minutes of the Appeals Committee meeting on 3 August 2015 were fabricated was also rejected in both the FCCA Proceedings (at [237]) and the NSWSC Proceedings (at [110]).
135. To the extent that this cause of action raises new allegations not the subject of the FCCA Proceedings, they do not have any reasonable prospects of success. There is nothing to support the applicant’s allegations that the first or second respondents were negligent by victimising him on the grounds of race or political conviction. Furthermore, the applicant’s separate allegations that he suffered psychiatric or mental harm as a result of the conduct of the respondents has no reasonable prospects of success, as it is based on the same material factual allegations which were rejected in the FCCA Proceedings.
136. Accordingly, the first to tenth respondents’ interlocutory applications for summary judgment under s 31A of the FCA Act and/or r 26.01 of the 2011 FCRs should be upheld insofar as they relate to the negligence and/or more specific psychiatric harm claims.

(e) Breach of fiduciary duty

137. The applicant’s cause of action based on breach of fiduciary duty, as summarised at [52] above, relies upon the same factual matrix as the other causes of action discussed above. This cause of action relies upon particular allegations previously made in the FCCA Proceeding relating to “tracking” of the applicant via his mobile phone and contriving a sexual harassment claim, and the respondents’ conspiring to steal and falsify the original CCTV footage. As against the first, third and fifth respondents, these allegations are not maintainable due to issue estoppel as they seek to re-litigate matters already finally determined in the FCCA Proceedings and District Court Proceedings. As against the second, fourth and sixth to tenth respondents, these allegations are not maintainable due to the operation of Anshun estoppel and/or abuse of process principles.
138. Accordingly, the first to tenth respondents’ interlocutory applications for summary judgment under s 31A of the FCA Act and/or r 26.01 of the 2011 FCRs should be upheld insofar as they relate to the breach of fiduciary duty claims.

(f) Strike out

139. As I have found that summary judgment should be entered for each of the respondent with respect to all of the causes of action advanced by the applicant, it is strictly unnecessary to determine whether any part of the ASOC should be struck out. However, based on the analysis and findings above, if necessary, I would have also found that the whole of the ASOC should be struck out under r 16.21 of the 2011 FCRs, given the overlap in statutory language with s 31A of the FCA Act and r 26.01 of the 2011 FCRs. If the ASOC was struck out, I consider that it would not be appropriate to grant the applicant leave to replead, given the history of the matter and his failure to provide a pleading which complies with r 16.02 of the 2011 FCRs. I consider, however, that the preferable course is simply to summarily dismiss the applicant’s claims against all of the respondents.

(g) The applicant’s interlocutory applications

140. It necessarily follows that each of the four interlocutory applications filed by the applicant should be dismissed. This is principally because the condition stipulated in r 5.23(2)(c) of the 2011 FCRs cannot be met having regard to my findings above concerning summary judgment in favour of all the respondents. I am not satisfied that the applicant is entitled to any of the relief claimed in the ASOC against any of the respondents.

Conclusion

141. For all these reasons, each of the respondents’ interlocutory applications for summary judgment under s 31A of the FCA Act and/or r 26.01 of the 2011 FCRs is upheld. It necessarily follows that the interlocutory applications brought by the applicant should be dismissed. As I have already indicated, the requested name changes for three of the respondents should be granted.
142. There is no reason why costs should not follow the event. Accordingly, the applicant must pay each of the respondents’ costs of the proceedings, as agreed or taxed. The seventh and eighth respondents have not persuaded me that their costs should be paid on an indemnity basis.

Associate:

Dated: 15 April 2021

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