Huang v Abayawickrama
[2012] FMCA 746
•27 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v ABAYAWICKRAMA & ANOR | [2012] FMCA 746 |
| PRACTICE & PROCEDURE – Whether Federal Magistrate should recuse herself – dismissed. |
| Federal Magistrates Court Rules 2001 (Cth), r.2.01 Sex Discrimination Act 1984 (Cth), s.105 Federal Magistrates Act 1999 (Cth), ss.42, 51, 55, 56 |
| Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 Johnson v Johnson (2000) 201 CLR 488 |
| Applicant: | HONG HUANG |
| First Respondent: | CHAMINDA ABAYAWICKRAMA |
| Second Respondent: | UNIVERSITY OF NEW SOUTH WALES |
| File Number: | SYG 2920 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 7 August 2012 |
| Date of Last Submission: | 7 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter in the Cantonese language. |
No appearance by or on behalf of the first respondent.
| Counsel for the second Respondent: | Ms N Sharp |
| Solicitors for the second Respondent: | Bartier Perry |
ORDERS
The application in a case filed by the applicant on 8 May 2012 is dismissed.
The applicant pay the costs of the University of New South Wales as agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2920 of 2004
| HONG HUANG |
Applicant
And
| CHAMINDA ABAYAWICKRAMA |
First Respondent
| UNIVERSITY OF NEW SOUTH WALES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This interlocutory application was filed by the applicant on 8 May 2012 and seeks orders that I take no further part in the matter on the basis of procedural unfairness, apprehension of bias and prejudgment and that the matter be transferred to another Federal Magistrate “who is interest and willing to deal with” it.
Applicant’s application that I recuse myself
The orders sought in the applicant’s interlocutory application, filed on 8 May 2012, are as follows:
“1. The Court direct that Federal Magistrate Emmett take no further part in proceedings SYG2920/2004, for the following reasons:
(1) procedural unfairness,
(2) apprehension of bias,
(3) her Honour FM Emmett prejudge that I have no prospects of success in SYG2920/2004:
(a) in the first direction hearing on 30 March 2012 from the success in the Federal Court appeal [University of New South Wales v Huang [2012] FCA 308 (27 March 2010), before I filed any further documents, her Honour FM Emmett said the words that I have no prospects of success in SYG2920/2004,
(b) in the second direction hearing on 7 May 2012 from the appeal, her Honour FM Emmett again prejudge that I have no prospects of success in SYG2920/2004,
(4) her Honour FM Emmett, without care to me as unrepresented party with mental disabilities and English difficulty, even directed or indicated to the respondents’ lawyers to simply and quickly struck out my application in SYG2920/2004 on the basis that I have no prospects of success,
(5) her Honour FM Emmett further prejudge that my treating doctors’ expert evidences, which were relevant to my claims against the sexual harassment and which also prove and support the sexual harassment occurred, are not relevant or are hearsay, which also does not comply with the Evidence Act,
(6) I am unable to efficiently represent my case before her Emmett,
2. The Court locates the matter to a Magistrate who is interest and willing to deal with.”
The application was supported by an affidavit of the applicant, sworn 8 May 2012.
At the commencement of the hearing of the application, it took significant time for the applicant to confirm whether she wished to pursue her application or withdraw it. She said on more than one occasion that if I withdrew from the case then she would withdraw her application. I said that she needed to tell the Court whether she was pursuing this application or withdrawing it. She finally said that she was pursuing it. A similar length of time and discussion was then taken with her as to whether or not she wished to read her affidavit in support. Ultimately, the applicant did seek to read her affidavit in support of her application. The second respondent (“the University”) was represented by Ms Naomi Sharp, of counsel. Ms Sharp did not object to the affidavit. The first respondent (“Mr Abayawickrama”) did not appear.
The applicant’s affidavit in support
The applicant’s affidavit is in the following terms:
“1. I have seriously suffered mental disabilities, I have English difficulty, and I am not a lawyer.
2. In NSD482/2011 [University of New South Wales v Huang [2012] FCA 308 (27 March 2010)], the University appealed against his Honour FM Cameron’s judgment of dismissing its application in a case in which they sought order to summarily dismiss my application in SYG2920/2004 for three reasons:
(a) I had no reasonable prospects of prosecuting my claim,
(b) by reason of my default,
(c) that my claim was an abuse of process
3. In NSD482/2011, I was referred by the Federal Court to counsel Mr Richar Chia for legal assistance.
4. The submissions of Mr Richar Chia in NSD482/2011 included submission of the University’s liability for the first respondent’s sexual harassment.
5. In the hearing in NSD482/2011, his Honour Justice Reeves J was in favour to Mr Chia’s submissions that the University was liable for the sexual harassment by the first respondent, but was not in favour to Ms Sharp’s submissions about the issue, for which the University abandoned the first basis of the appeal.
6. Under Mr Richar Chia’s assistance in the appeal, on 27 March 2012 his Honour Justice Reeves J dismissed the University’s appeal and ordered that the University pay costs [University of New South Wales v Huang [2012] FCA 308 (27 March 2010)], and the University did not appeal his Honour Justice Reeves’s judgment.
7. I had talked with Mr Richar Chia, and requested him to assist me in SYG2920/2004, but he told me to request the Federal Magistrates Court to refer to him or other Pro Bono lawyers in the list.
8. In the first direction hearing in SYG2920/2004 on 30 March 2012 from this Federal Court appeal, before I filed any further documents, I tendered my medical letter by Dr Moore to her Honour FM Emmett, the medical letter certifies I suffer mental disabilities and requests her Honour refer me to a Pro Bono lawyer for legal assistance for the matter, and the University also requested her Honour referred me to legal assistance under Rule 12.03 for the assistance in Rule 12.04(c) of the FMC Rules 2001, but her Honour required me to give the legal points about the University’s liabilities for the first respondent’s sexual harassment, which I needed and was better to have a lawyer to assist me to do, and her Honour also stopped me and did not allow me to continue in completing my response of the legal arguments or submissions why the University was liable for the sexual harassment by the first respondent, and her Honour, based on what I was not allowed to complete and could not efficiently state, refused to refer me to Mr Richar Chia or any other Pro Bono lawyer in Pro Bono Scheme list, and said the words that I have no prospects of success (in SYG2920/2004), and her Honour further said if I would not be able to do the pleading according to the laws, her Honour would struck out my application in SYG2920/2004, which does not comply with:
(a) the order and judgment by his Honour Justice Reeves J in University of New South Wales v Huang [2012] FCA 308 (27 March 2010),
(b) section 42 of Federal Magistrates Act, which provides:
42 Federal Magistrates Court to operate informally
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that proceedings are not protracted.
(c) section 1.03(2) of the Federal Magistrates Court Rules, which provides:
1.03 Objects
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
·to operate as informally as possible
·to use streamlined processes
·to encourage the use of appropriate dispute resolution procedures.
9. After I got some assistance and my hard studies of the Sex Discrimination Act and Mr Chia’s submission and other legal documents, on 27 May 2012, I filed and served my Particularised Statement of Claims.
10. In the second direction hearing on 7 May 2012 from this Federal Court appeal:
(a) I requested her Honour considered my mental disabilities in the hearings and how I was able to follow what had been said in the hearings, but her Honour refused to consider my mental disabilities, so that I could only hear parts of Chinese and parts of English and I was unable to fully follow what her Honour discussed with the University’s Counsel Ms Sharp and what was happening in the hearing,
(b) her Honour FM Emmett repeated to me that, in the last hearing on 30 March 2012, her Honour said to me if I could not do the pleading her Honour would struck out my application in SYG2920/2004, then her Honour mentioned to Ms Sharp that 40 pages of my Particularised Statement of Claims were irrelevant, was not formal, and her Honour mentioned her Honour did not understand what were the issues about, but Ms Sharp told her Honour what were the issues about, and then her Honour with Ms Sharp discussed that I had “hopeless” in SYG2920/2004 and tried how to be “close to finality”, in which her Honour did not allow me to follow what her Honour discussed with Ms Sharp and her Honour did not allow the interpreter to efficiently interpret to me, and from which I understood her Honour indicated to Ms Sharp to simply and quickly struck out my application,
(c) her Honour FM Emmett again said the words that I have no prospects of success in SYG2920/2004,
(d)her Honour FM Emmett further prejudge that my treating doctors’ expert evidences are not relevant to my claims against the sexual harassment or are hearsay, and refused any affidavits of my treating doctors’ expert evidences to be filed in the current proceedings, but in fact that my treating doctors have given the expert evidences, including that I was affected by those pornographic pictures, I was very distressed and stressful because of the sexual harassment, and I did not have any delusion at the times, which was relevant to my claims against the sexual harassment, and which prove and support the sexual harassment occurred,
(e) her Honour FM Emmett did not give my rights and chances to say and respond to what Ms Sharp had said in which Ms Sharp misinterpreted and distorted the facts.
(f) Ms Sharp tendered the affidavit of the first respondent, but her Honour did not give me my right and chance to comment it,
(g) Ms Sharp also tendered another document, which I had not been aware of, her Honour did not ask me whether I had read the document, did not give time to the interpreter to interpret to me what was happening, did not give me times to read it before it was tendered, did not give my right and to comment it, and did not allow me to follow what her Honour and Ms Sharp discussed, after their discuss, her Honour requested Ms Sharp took the document away from my desk, I had not understood what they discussed and what was happening, and only in break times, when I asked Ms Sharp what was the document she took from my desk, she told me it was their orders to seek,
(h) Her Honour took no care to me as the unrepresented party with mental disabilities and English difficulty that whether I did not understood what were said or not,
(i) Her Honour was in bias, tried to “confirm” what I had said why the University was liable for sexual harassment by the first respondent in the last hearing in which her Honour stopped me to complete the legal arguments or submissions,
(j) Her Honour did not understand my Particularised Statement of Claims, which includes details of the legal arguments why the University was liable for the sexual harassment, but her Honour did not ask me to assist her to follow and understand the document,
(k) her Honour did not allow my rights and chances to say in the hearings.
(l) I requested to have my rights and chances to clarify what Ms Sharp had misinterpreted and the facts that she distorted and say some important issues, but her Honour did not allow me to do so or stopped me and did not allow me to complete what I tried to say,
(m) because of the unfairness and these important issues raised in the hearings, I requested my rights and chances to say and respond, but her Honour said I was in “contempt” of the Court and ordered me to leave the Court room and had hearing without my presence,
11. I have had four hearing before her Honour FM Emmett until the hearing on 7 May 2012 in SYG2920/2004. Except the second hearing which was very simple, I have had very difficult times in the other three hearings before her Honour, her Honour always stopped me and did not allow me to say or complete what I tried to say. Except one or two occasions, her Honour always did not give times and chances for the interpreter to interpret what her Honour had discussed with the respondents’ lawyers.
12. In the first hearing before her Honour FM Emmett on 11 May 2011, her Honour did not understand how an interpreter could efficiently work with me because of my mental disabilities and English difficulty, so that, due to difficulty of the interpreting in the Court room, her Honour required the interpreter and me leaving the Court room.”
No transcript was tendered by the applicant to support the assertions made in the affidavit. The applicant’s affidavit misstates what occurred at the directions hearings mentioned.
On 11 May 2011, the applicant appeared before me for the first time for directions in respect of this proceeding, which was transferred to me from Cameron FM. At that time, the University had lodged an appeal to the Federal Court of Australia from Cameron FM’s order dismissing the University’s application to strike out the proceeding. For that reason, I stood the next directions hearing over until the appeal against Cameron FM’s interlocutory orders had been determined.
On 27 March 2012, Reeves J made orders dismissing the University’s appeal.
The directions hearing before me on 30 March 2012
Subsequently, on 30 March 2012, the applicant appeared before me at a further directions hearing.
On that occasion, I asked the applicant to explain the substance of her complaint. She informed me that the substance of her complaint was that she had been required to work in a “sexually charged environment”. I asked her what she meant by that statement and she said that, whilst she was a student at the University, another student, Mr Abayawickrama, had shown her pornographic material on one of the computers on the University campus.
I asked the applicant what was her complaint in respect of the University in relation to that conduct. She responded that it was a failure by the University to properly supervise the use of their computers such that she had been exposed to pornographic material that caused her distress amounting to sexual harassment. Having been informed by the applicant that the University had security passes and codes for the use of computers, I asked the applicant what it was she thought the University should have done. The applicant responded that the University should have provided 24 hour supervision of its computers. I said to her that if the Court determined that that requirement was not reasonable, she was likely to be unsuccessful.
Having regard to the judgment of Reeves J and the difficulty that he identified in the matter not having proceeded by way of pleadings, I directed that the matter proceed by way of pleadings. I also considered that a pleading would be relatively straightforward and short to prepare, given the nature and scope of the applicant’s oral complaints to me on 30 March 2012. I explained to the applicant that she would be required to file and serve a statement of claim that complied with the Federal Magistrates Court Rules 2001 (Cth) (“the FMC Rules”) and that, if she failed to comply with the Rules, her statement of claim may be struck out. The applicant was provided with a copy of the relevant FMC Rules to assist her in her preparation of the statement of claim.
During the course of the directions hearing, the applicant informed me that she had been represented before Reeves J by pro bono counsel, Mr Richard Chia. She asked that I direct that Mr Richard Chia continue to represent her in accordance with the NSW Bar Association pro bono policy. She said that Mr Chia was prepared to accept such a direction if it was made by the Court.
I explained to the applicant that I was not satisfied that her application, as told to me by her, had sufficient prospects of success such that it was appropriate that pro bono counsel be required to represent her. I gave her the contact details of legal services providers and interpreting and translating services to assist her in seeking legal representation. I also raised with the solicitor for the University whether it would be in the interests of the litigation generally for the University to consider whether or not counsel’s fees to assist the applicant should be met by the University. The solicitor for the University said that he would take instructions in respect of that matter. Nothing further on this matter was conveyed to the Court by the University.
Throughout the directions hearing, the applicant regularly interrupted the proceeding, waved her arms, told me that she had a medical condition, ignored the assistance of the interpreter and spoke in English.
I said to the applicant that she had requested and been provided with the services of an interpreter, at her request and at the cost of the Court, and that either she should use those services or I would relieve the interpreter. It appeared to me that she was able to understand everything that she wished to understand and only used the services of the interpreter when that requirement was imposed upon her by me.
The directions hearing took an inordinate amount of time and resulted in directions being made for the matter to proceed by way of pleadings. The applicant was also directed to file a fully particularised statement of claim by 28 April 2012. I stood the matter over for further directions on 7 May 2012.
The directions hearing on 7 May 2012
On 27 April 2012, the applicant filed a 40 page, single spaced document entitled “Particularised Statement of Claims”. It was a document that plainly did not comply with the FMC Rules either in respect of the formalities of a statement of claim, or in respect of the requirements for a document filed in a Court proceeding in accordance with r.2.01 of the FMC Rules. It was a 40 paged single spaced document with long rambling sentences of up to 30 lines long. The document was a mixture of assertions, submissions, quotations from legislation and unnecessary, often condemnatory, commentary. It was a prolix and largely incomprehensible document.
At the directions hearing on 7 May 2012, the University was represented by Ms Sharp of counsel. Mr Abayawickrama did not appear at any of the directions hearings and, to my knowledge, has been in Sri Lanka since 2002.
Ms Sharp submitted that whilst the “Particularised Statement of Claims” was prolix and unclear, the University had distilled the particulars as follows:
(i) On 11 September 2001, Mr Abayawickrama showed the applicant a photograph which the applicant alleged was pornographic.
(ii) On 12 September 2001, Mr Abayawickrama again showed the applicant a photograph alleged by the applicant to be pornographic.
(iii) Mr Abayawickrama implied to the applicant that he needed sex.
(iv) Mr Abayawickrama stayed in the laboratory on two or three occasions and impliedly asked the applicant for a lift home.
(v) In December 2001, Mr Abayawickrama passed onto the applicant an invitation to attend Mr Markovic’s farm for Christmas.
(vi) In January 2002, Mr Abayawickrama passed on a message from Mr Markovic to borrow some guidelines.
(vii) In January 2002, Mr Abayawickrama placed two photographs of his wife on his desk.
(viii) Mr Abayawickrama insulted the applicant in a letter given to the investigator after the alleged events.
(ix) Repeated (viii)
Ms Sharp submitted that of those complaints, (v) to (ix) were new complaints against Mr Abayawickrama. Certainly, the complaints went far beyond the complaints that the applicant had articulated to me on the last occasion in respect of the conduct of both Mr Abayawickrama and the University and far beyond the allegations in her affidavit filed on 23 September 2004 in support of her initiating substantive application
Ms Sharp said that she understood that the liability of the University was alleged to be accessorial pursuant to s.105 of the Sex Discrimination Act 1984 (Cth). Ms Sharp stated that the University would deny that it had accessorial liability and denied it was vicariously liable for the actions of Mr Abayawickrama.
Applicant’s conduct during directions hearings
During the directions hearings, the applicant continually interrupted, and attempted to talk over counsel for the University and myself.
At both directions hearings, I noticed that the interpreter provided by the Court was not interpreting everything said in the exchanges I was having with counsel for the University. I asked the interpreter why she was not interpreting those matters and was told by the interpreter that the applicant had told her not to interpret those matters and only to interpret as the applicant required. I again explained to the applicant that if she wished to have the assistance of the interpreter, then she must use those services for interpretation of what I said and what was said by Ms Sharp for her own assistance. I also said that the interpreter was to interpret what was said by the applicant for the assistance of the Court and counsel for the University.
The applicant made continual demands of the Court for explanation of various matters. I explained to the applicant that her document, headed “Particularised Statement of Claims”, went far beyond the claims she had made to me at the directions hearing on 30 March 2012. However, the University did not seek to make any application to strike out the Particularised Statement of Claim.
In the circumstances, I made directions for the filing and serving of defences and evidence. I asked the applicant what was the evidence that she wished to rely upon at trial and if she had any witnesses. She said that the only witnesses would be herself and her doctors. I also established with Ms Sharp who were the witnesses that the University wished to call and the substance of their evidence. Based on the information that the applicant had provided at the previous directions hearing, I considered that there would be no reason for her affidavit evidence to be more than 10 pages plus annexures.
The applicant said that she also wanted to have doctors give evidence as to whether or not sexual discrimination against her had taken place. I explained to the applicant that that was an issue for determination by the Court and that it was irrelevant what any doctor may or may not opine amounts to sexual discrimination.
The applicant then said that the medical evidence also went to her suffering as a result of the conduct of the respondents.
In the interests of potentially saving time and costs, I said that I would split the trial into liability and damages. I explained to the applicant that her medical evidence would be relevant only on the issue of damages, in the event that the applicant was successful in establishing liability of the respondents, or either of them.
The applicant made no effort to understand or absorb what was being said. She continually interrupted, waved her hands, stood up in the Courtroom and generally made it near impossible for the directions to proceed in the ordinary course.
The directions hearing was for the sole purpose of setting a timetable for trial. It should have taken no more than 10 minutes but in fact took almost two hours solely because of the conduct of the applicant. At one point, I said to the applicant that if she refused to be quiet and speak only when spoken to, I would have her removed from the Court. The applicant continued to speak despite me having warned her on several occasions. For those reasons, whilst I was drafting the directions for the filing of evidence and the preparation for trial, the applicant was removed from the Court. Upon the draft directions having been completed by me, I had the applicant brought back into Court and the draft directions were shown to the applicant and Ms Sharp. The applicant continued to ask irrelevant, needless and pointless questions and make similarly needless statements and assertions. This conduct resulted in my adjourning whilst the applicant was continuing to speak as I considered that she was refusing to be silenced and there was nothing further to explore that was relevant to the directions hearing.
The applicant was provided with a signed and sealed copy of the directions made by me on that day. They were as follows:
“1. The matter will proceed on the issue of liability only.
2. Any evidence relating to damages will be the subject of directions following the Court’s determination on the question of liability.
3. The applicant file and serve an affidavit of service of the document headed “Particularised Statement of Claim” and filed on 27 April 2012 upon the first respondent by 19 May 2012.
4. Each of the respondents file and serve any defence by 4 June 2012.
5. The applicant’s evidence in support of this proceeding is to be filed and served by way of affidavit on the respondents by 3 July 2012 and is to be no more than ten pages, excluding annexures
6. The applicant identified Ms Frank as a witness she may wish to call. In the event the applicant seeks to rely on any evidence from Ms Frank, such evidence is to be by way of affidavit and filed and served by 3 July 2012 and is to be no more than three pages, excluding annexures.
7. The body of any affidavit must be divided into paragraphs, numbered consecutively and each paragraph must be confined to a distinct part of the subject as far as possible, in accordance with r.15.25 of the Federal Magistrates Court Rules 2001 (Cth).
8. Any affidavit containing annexures is to be accompanied by an index identifying the annexure and the page at which it appears.
9. The second respondent file and serve any evidence by way of affidavit by 6 August 2012 in respect of the evidence of the following:
(i) Mr Ward - affidavit is to be no more than four pages, excluding annexures.
(ii) Mr Vassie – affidavit is to be more than four pages, excluding annexures.
(iii) Mr Markovic – affidavit is to be no more than three pages, excluding annexures.
(iv) Ms Frank – affidavit is to be no more than three pages, excluding annexures.
(v) Mr Mattson – affidavit is to be no more two pages, excluding annexures.
10. Leave to the second respondent to issue a subpoena upon the applicant by 12 May 2012 to produce documents in relation to the applicant’s allegation of employment with the second respondent to be made returnable before the Registrar prior to the next Court event.
11. The first respondent must file and serve any evidence, by way of affidavit, by 6 August 2012, such evidence not to exceed ten pages, excluding annexures.
12. No affidavit will be accepted from any witness that does not comply with these Orders.
13. No other affidavit or subpoena is to be filed or issued in this proceeding.
14.The applicant must serve upon the first respondent a copy of the Orders made by the Court this morning.
15. In the event that the applicant does not prove service upon the first respondent of the document headed “Particularised Statement of Claim”, any affidavit relied upon by the applicant and a copy of these Orders at the next Court event, the proceeding against the first respondent may be dismissed without further notice.
16. The matter is otherwise stood over for further directions on 14 August 2012 at 10:00am in Courtroom 12.1, Level 12, Terrace Tower, 80 William Street, Sydney, before me.”
The applicant’s oral submissions
The applicant was invited to say whatever she wished in support of her application that I recuse myself. The following complaints were made by the applicant:
i)Whenever she wished to say something, I did not give her the chance to finish.
ii)I did not consider the applicant’s English difficulty.
iii)I would only allow instantaneous interpretation. The applicant has a difficulty with the way interpretation was conducted and asked the Court to make provision for her disability which was not considered. I did not allow time for the interpreter to interpret.
iv)I gave the impression that I was not interested in what the applicant had to say. For example, I asked the applicant to leave the Court because of interpretation and the problems that she raised.
v)After the last occasion, the applicant wrote to the Registry asking that I remove myself because I would not give her a chance to present her case properly. The applicant said that the Registrar told her that the Registrar would not do that. She then tried to continue, hoping that I would allow her a chance to present her case. However, on the last occasion the problem was worse. For example, the University’s counsel, Ms Sharp, handed a document to the Court and the applicant had no idea what it was about and a document was taken from her. She said she asked Ms Sharp what the document was and Ms Sharp said it was some sort of order. The applicant said she found that I was not dealing with that properly and that I should have let her know what was being tendered in Court.
vi)I gave no consideration to the applicant’s mental disability.
vii)The applicant could not comprehend what was going on in Court.
viii)The applicant could not properly present her case in Court.
ix)During the last two directions hearings the applicant caught the words “no prospects of success” and that I said that before she filed her affidavit.
x)I continued to conduct the case as mentioned and that led the applicant to believe I was biased and had prejudged her case.
xi)I treated her like a criminal and asked her to leave.
xii)The applicant asked me to make special provision and I told her that she was being contemptuous. The applicant said her case is complicated but even before the matter had started, I considered her contemptuous in respect of procedural matters.
Prejudgment
As I understand the applicant’s complaint, it is her view that I had prejudged her case because at two directions hearings I said she had no prospects of success. I have reviewed the transcript of the directions hearings. I have recounted what transpired at the directions hearing in some detail above. At no stage did I tell the applicant she had no prospects of success.
The bare assertion by the applicant that I appeared to be biased through prejudgment is not sufficient without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making (see Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 445 per Gummow ACJ, Hayne, Crennan and Bell JJ).
During the course of the applicant’s submissions she also said that unless I was prepared to believe everything she said, I should disqualify myself for bias. Such an assertion bespeaks a lack of understanding of the role of the determinator of fact in a case, the principles to be applied to the facts as found and the case management tools available and used by a Court in reaching a determination.
Explaining to a party the difficulties faced by the party in the case as it has been put does not indicate any prejudgment.
Case management
The second complaint of the applicant appears to be related to the case management tools applied by me, including the directions made on 7 May 2012. This complaint reflects a misunderstanding by the applicant of the duty of the Court under the Federal Magistrates Act 1999 (Cth) to ensure that the proceedings are not protracted. The relevant sections are as follows:
“42. Federal Magistrates Court to operate informally
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
51. Limits on length of documents
(1) The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the length of documents required or permitted to be filed in the Federal Magistrates Court.
…
55. Limits on the length of oral argument
(1) The Federal Magistrates Court or a Federal Magistrate may give directions about limiting the time for oral argument in proceedings before the Federal Magistrates Court.
…
56. Written submissions
(1) The Federal Magistrates Court or a Federal Magistrate may give directions about the use of written submissions in proceedings before the Federal Magistrates Court.
(2) The Federal Magistrates Court or a Federal Magistrate may give directions limiting the length of written submissions in proceedings before the Federal Magistrates Court.
… ”
This proceeding against Mr Abayawickrama and the University has been before the Federal Magistrates Court for nine years. There have been 35 Court events involved in this proceeding alone. The applicant has filed 10 interlocutory applications, apart from the two that are the subject of this hearing. The University has filed one interlocutory application, apart from the one the subject of these reasons, and which was dismissed by Cameron FM. While the legal issues in the proceeding are not complex, the Court time involved in the applicant’s pursuit of litigation is completely disproportionate to the lack of legal and factual complexities involved in the applicant’s claims.
It was quite plain to me that a firm hand would be needed in order to progress the matter to a hearing. For that reason, I used the case management tools available to the Court in order to limit the scope of evidence before the Court in an endeavour to minimise the cost and time involved in concluding the matter, as well as splitting liability and damage. I did so after discussion with the applicant as to the nature of her evidence and similarly with counsel for the University.
In my view it was necessary to take a firm hand with the applicant, who I am satisfied will continue to protract the litigation in a way that indicates no genuine desire or attempt on her part to bring her proceeding to conclusion.
Interpretation complaints
The applicant’s complaint in relation to interpretation arose from the applicant continually speaking over the interpreter, using a mixture of English and Cantonese, and not allowing the interpreter an opportunity to interpret what was said before she would interrupt again. The applicant said that she wanted interpretation only as she saw fit and that she did not wish the interpreter to interpret what was said immediately following it having been said. I explained to the applicant that that was the best way to ensure that whatever the applicant said was accurately interpreted for her benefit and that whatever I or Ms Sharp said was accurately interpreted for the benefit of the applicant. All efforts were made by me, the interpreter and Ms Sharp to accommodate the applicant. The applicant continued to speak over me, the interpreter and Ms Sharp whenever she chose to and made little or no effort to use the interpreter in the way I had suggested.
Plainly the applicant’s complaint relating to interpretation cannot reflect any prejudgment on the part of the Court. Nor do any of the other complaints raised by the applicant.
Conclusion
It is a well established principle that a Court should not recuse itself too readily (see Johnson v Johnson (2000) 201 CLR 488).
The applicant complained several times that, if she was to confine her evidence to 10 pages, it would only consist of opinion and that it would not be evidence and that it was necessary for her to give detailed evidence in order to be believed. The applicant regularly prefaced all her complaints by stating that she was not a lawyer. On other occasions, she said that she had studied law and had some knowledge of law. She also said regularly that she has mental difficulties and the Court should appoint a pro bono lawyer to assist her. The applicant refused to accept that the Court does not have the power to order a pro bono lawyer to appear for her. She also said that all her documents should be read without undue formality.
In the circumstances: the use of case management tools; the endeavour to have the applicant use the interpreter in the most constructive manner; explaining to the applicant that her case as articulated by her did not have reasonable prospects of success; the removal by me of the applicant from the Court for a brief period because of her continued disruptive behaviour in order to allow me to finalise draft directions for consideration by each of the parties; the failure to order that a pro bono lawyer appear for her; the use of case management tools by me to confine the parties’ evidence after discussion; and, the attempt to set the matter down for hearing without further delay, would not lead an informed, fair-minded lay observer reasonably to apprehend that I would not bring an impartial and unprejudiced mind to the resolution of this case.
Accordingly, the applicant’s application in a case, filed on 8 May 2012, should be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 27 August 2012
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