Huang v Abayawickrama

[2011] FMCA 235

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v ABAYAWICKRAMA & ANOR [2011] FMCA 235

PRACTICE & PROCEDURE – Application for summary dismissal – default in compliance with orders of the court – whether proceedings lack reasonable prospects of success – whether proceedings an abuse of process.

Federal Court of Australia Act 1979
Federal Magistrates Act 1999, s.17A

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: HONG CUI HUANG

First Respondent: CHAMINDA ABAYAWICKRAMA

Second Respondent: UNIVERSITY OF NEW SOUTH WALES

File Number: SYG 2920 of 2004

Judgment of: Cameron FM

Hearing date: 24 & 28 March 2011

Date of Last Submission: 28 March 2011

Delivered at: Sydney

Delivered on: 28 March 2011

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the First Respondent: No appearance

Solicitors for the Second Respondent: Bartier Perry

ORDERS

1. The second respondent’s application in a case filed on 22 December 2010 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2920 of 2004

HONG CUI HUANG

Applicant

And

CHAMINDA ABAYAWICKRAMA

First Respondent

UNIVERSITY OF NEW SOUTH WALES

Second Respondent

REASONS FOR JUDGMENT

1. The history of these proceedings has been set out in earlier judgments in this case.  They arise out of events in 2001 where it is alleged that the first respondent sexually harassed the applicant by, amongst other things, showing to her on a computer screen an image of a penis or an image of something which looked like a penis.  The University of New South Wales (“University”), the second respondent, is said to be vicariously liable for this conduct because at all relevant times, according to the applicant, the first respondent was an employee of the University.

2. The University has brought an application in a case for the proceedings against it to be dismissed on the basis that:

   a)the applicant is in default of orders made by the Court on 31 July 2010 that she file her affidavits in support of her claim;

   b)in any event, the application has no reasonable prospects of success; and

   c)they are an abuse of process. 

In default of Court orders

1. Dealing first with the question of whether the applicant is in default of the orders made by the Court, it is true that it was not until last week that she filed a further affidavit setting out the basis of her claims.  However, it should not be overlooked that the orders made on 31 July 2010 were ones which ordered that the question of whether or not the alleged acts of sexual harassment occurred should be determined as a separate question.  Until that point, all matters were on the table and the matter was proceeding to a hearing on all issues.  Consequently, the affidavits which the applicant had filed earlier in the proceedings were addressed not only to liability, but also to quantum.  In this connection, regard should be had to the applicant’s affidavit filed on 16 April 2008 in which she set out the essence of her claim, at least in one of its iterations.

2. The fact that the applicant took until last week to file a further affidavit is, undoubtedly, a breach of the order made on 31 July 2010 but, at the end of the day, if the applicant wishes to file further affidavits in support of her case or does not wish to file affidavits in support of her case that is a matter for her.  Orders dismissing proceedings for default in compliance with earlier orders of the Court should only be made where the step which is required to be taken is one which is necessary for the forward conduct of the matter, whether that be the necessity for a respondent to file a response and a supporting affidavit, for a party to give discovery, answer interrogatories or something of that sort.  A default of that nature may, in certain circumstances, justify the Court in dismissing a matter summarily.  However, the fact that an applicant has failed to file evidence in addition to what she has already filed is not the sort of default which, in my view, justifies dismissal of the matter.

3. Ms Huang has said in her submissions today that some leeway was given to her in discussions in this Court in the case she has brought against the University and Dr Fuchun Xiao (proceedings SYG577/2008) because of the timetabling of that matter.  It is true that some latitude was given to Ms Huang, but not as much latitude as I think she believes she was actually given.

4. It might also be noted that there is no evidence put before the Court on behalf of the University that the applicant was put on notice at any time prior to the filing of this application in a case that it was its intention to move for the dismissal of the proceedings.  Generally, in situations like this, a party who is in default is put on notice and warned that an application will be brought.  That did not occur on this occasion but, in any event, as I said, the default of the applicant is not of a nature which merits dismissal of the proceedings. 

Reasonable prospects of success

1. In relation to the question of whether the applicant has reasonable prospects of success, the High Court has recently said in Spencer v Commonwealth of Australia (2010) 241 CLR 118, in relation to the provision in the Federal Court of Australia Act 1979 equivalent to s.17A of the Federal Magistrates Act 1999, that:

   Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success.  That may be a judgment of law or of fact, or of mixed law and fact.  Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.  (at 132 [25] per French CJ and Gummow J)

   In the judgment of Hayne, Crennan, Kiefel and Bell JJ, their Honours said at 141 [60] that full weight should be given to the expression as a whole and that the Court can only make the sort of order which the University seeks if there is no reasonable prospect of success.

2. In this case, what the applicant has put before the Court are two important affidavits: one, the affidavit filed on 16 April 2008 and the other her “Affidavit in reply to the respondents – liabilities” filed on 24 March 2011.  In the first of those affidavits the applicant deposes that the first respondent showed her “a man’s sexual organ, a (stood up) penis” and that this shocked her.  She goes into further detail about that event.  She also says in that affidavit that during the relevant period she was employed by the University – for what relevance that is – and that in session 2 of 2001, when the alleged act of sexual harassment is said to have occurred, the first respondent was also doing paid casual work at the School of Safety Science where the events are alleged to have occurred.

3. In her affidavit filed on 24 March 2011 the applicant says, amongst other things, that:

   During session 2 of 2001, when the first respondent sexually harassed me in the office room 123 in building B11a:

   (1)  he had been employed by the UNSW at the School of “Safety” Science,

   (2)  he had been employed by the UNSW in doing research and academic works in the office room 123 in building B11a in the School of “Safety” Science … (para.32)

   She goes on to say in para. 32(5) of that affidavit that:

   (5)an employer-employee relationship between UNSW and the first respondent in office room 123 existed …

   and continues, saying that:

   (6)the first respondent sexually harassing me in the office room 123 at the times during the period since August 2001 until early 2002 [which I interpolate is an expansion of her allegations made to the Human Rights and Equal Opportunity Commission]:

   (a)was in connection with his employment of doing works in the “Chemical Safety and Applied Toxicology Laboratory” (CSAT Laboratory),

   (b)was in connection with his employment by UNSW at the School,

   (c)   happened during the course of the employment …

4. The upshot of those affidavits is that the applicant has said on her oath that:

   a)the alleged acts of sexual harassment occurred; and

   b)at the relevant time, the first respondent was employed by the University and that what he did, were it to be made out, was in connection with his employment. 

5. Whether or not the Court thinks that the applicant has a strong case is not the point; the point is whether she has reasonable prospects of success in the sense discussed by the High Court in Spencer’s case.  

   
   

   I think it has to be said that she does.  I do not wish to express any view on how high those prospects are but I think she meets the threshold such that an application to dismiss the proceedings on the basis of an absence of reasonable prospects of success cannot succeed. 

Abuse of process

1. The third limb of the University’s application is that the proceedings are an abuse of process.  There can be no doubt that there are aspects of these proceedings which, truly, are abusive.  The applicant seems to find it difficult to confine her claim to something within the ambit of what she alleged to the Human Rights and Equal Opportunity Commission.  Secondly, she makes bold assertions which appear to be unsubstantiated by facts.  She also makes bold assertions from the bar table which are scandalous and embarrassing on occasions.  She files many applications in a case, not as many in this case as in Dr Xiao’s case (proceedings SYG577/2008), but certainly applications in a case which seem to be vexatious.  The application in a case which was filed today is undoubtedly vexatious in some respects because it seeks to canvass the ruling which I made last Thursday on the application in a case which she had filed last week.  It is, I accept, an expensive case for the University to run.  The cost is disproportionate to the matters in issue, both factually and in terms of the damages which are likely to flow were the applicant to be successful, and it is unfair on the respondents that they seem to be dealing with a claim which is not set in stone, and it does seem to move.  However, all those things are examples of conduct which can be addressed on each individual occasion.

2. The essence of a decision to dismiss proceedings on the grounds that they are an abuse of process is that they are deliberately vexatious to a party, deliberately oppressive of a party or have no prospects of success whatsoever.  It might be a case where all of the issues have been decided by the parties previously and the proceedings are just a reventilation of the matters which have previously been determined.  Those sorts of cases are an abuse of the process of the Court and should not be entertained.  However, the fact that the applicant, who plainly has psychiatric issues which she freely admits, is not a lawyer but a scientist by background and is operating in a language which is not her first language, tends to explain, though not always excuse, her conduct of the proceedings.  Because the proceedings themselves are not so forlorn as to deserve dismissal on the basis of them wanting reasonable prospects of success, it could not be said, for the reasons I have already given, that they should be found to be an abuse of process.

3. For those reasons, the University’s application in a case will be dismissed. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  8 April 2011