Huang v Abayawickrama & Anor (No.2) - [2012] FMCA 747

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v ABAYAWICKRAMA & ANOR (No.2)

[2012] FMCA 747

PRACTICE & PROCEDURE – Whether substantive proceedings against the respondents should be dismissed as an abuse of the Court’s process – proceeding dismissed.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03B(1), 13.10
Federal Magistrates Act 1999 (Cth), ss.17A, 42, 51, 55, 56
Federal Court Rules 2011 (Cth), rr.1.40, 26

Huang v Abayawickrama & Anor [2012] FMCA 746
Windsor v Sydney Medical Service Cooperative Ltd (No.2) [2009] FCA 704
Bi v Mourad [2010] NSWSC 17
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Walton v Gardiner (1993) 177 CLR 378
Rogers v the Queen (1994) 181 CLR 251
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75
Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189
Jago v District Court of New South Wales (1989) 168 CLR 23
Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490
Aon Risk Services v Australian National University [2009] HCA 27
Sea Culture International v Scoles [1991] FCA 523
Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256
Hunter v Chief Constable of the West Midlands Police [1982] AC 529

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 proceeding against the University of New South Wales, commenced by way of application filed on 23 September 2004 as amended on 2 April 2008 be dismissed as an abuse of process pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) and pursuant to r.13.03B(1) of the Federal Magistrates Court Rules 2001 (Cth).
The proceeding against Mr Abayawickrama, commenced by way of application filed on 23 September 2004, be dismissed as an abuse of the Court’s process.
The applicant pay the costs of the University of New South Wales in respect of the proceeding commenced by way of application filed on 23 September 2004 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

University’s application for summary dismissal

This interlocutory application was filed by the second respondent, the University of New South Wales (“the University”), on 17 July 2012, seeking orders that the proceeding be dismissed against the University on the basis of the applicant’s default in failing to comply with directions of the Court; or, alternatively, that the proceeding be dismissed on the basis that the proceeding is an abuse of process of the Court. In the event the University is unsuccessful in respect of those orders, further orders are sought regarding the future conduct of the matter.
Inter alia, the orders sought by the University in the application in a case filed on 17 July 2012 are as follows:
“1. The proceedings be dismissed against the Second Respondent on the basis that the applicant is in default within the meaning of rule 13.03B(1) of the Federal Magistrates Court Rules 2001.
2. Alternatively to (1) above, the proceedings be dismissed against the Second Respondent on the basis that the proceedings are an abuse of process of the Court within the meaning of rule 13.10(c) of the Federal Magistrates Court Rules 2001.”
The relevant Federal Magistrates Court Rules 2001 (Cth) (“the FMC Rules”) referred to are as follows:
a)Rule 13.03B(1)
“Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b) -- the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.”
b)Rule 13.10(c)
“Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”

Mr Mattson’s affidavit

In support of the application, counsel for the University, Ms Sharp, read the affidavit of James Bernard Mattson, sworn 17 July 2012. Mr Mattson is a member of Bartier Perry, the University’s solicitors.
I asked the applicant whether she objected to any part of the affidavit and she said “yes” but was unable to articulate what her objection was. For that reason, I went through the affidavit paragraph by paragraph. The applicant objected to the vast majority of the affidavit. She maintained baseless, needless and unsustainable objections to completely benign evidence. For example, the applicant objected to paragraph three which said that “The matters I depose to in this affidavit are based upon my knowledge or my review of the files held by Bartier Perry in this matter unless otherwise indicated”. The basis of nearly all of the applicant’s objections was “it is unfair”. At times, the applicant sought to cavil with my rulings.
The reading of the affidavit took an inordinate amount of time as a result of the unfounded and baseless objections and complaints made by the applicant. Ms Sharp did not read those parts of the affidavit that were capable of being objected to and the time taken, which was significant, was entirely due to the conduct of the applicant.
Mr Mattson’s affidavit essentially recounted the history of the matter. Exhibited to the affidavit was a bundle of documents, which was tendered by the University and marked Exhibit 1R.
Mr Mattson gave a brief history of all of the applicant’s proceedings against the University in the Federal Magistrates Court.
The applicant’s first proceeding commenced on 21 August 2003 against five respondents, Mr Markovic, Mr Winder, Mr Xiao, Mr Abayawickrama and the University and was numbered SYG1691/2003.
Over time, the applicant’s claim against the respondents has been dealt with in three separate proceedings. The first being SYG2124/2004 against Mr Markovic, Mr Winder and the University and was dealt with by Driver FM. The second is this proceeding against the first respondent (“Mr Abayawickrama”) and the University. The third proceeding is SYG577/2008 against Mr Xiao and the University and has been dealt with by Cameron FM. Relevant procedural history of the various proceedings is dealt with below.
On 23 September 2004, the applicant commenced this proceeding against Mr Abayawickrama. The application sought the following orders:
“1. An order declaring that Respondent 4, Chaminda Abayawickrama, has committed unlawful sexual harassment and directing Respondent 4 not to repeat or continue such unlawful sexual harassment;
2. An order requiring the University of New South Wales to has the ability for the unawful sexual harassment committed by Respondent 4;
3. An order requiring University of New South Wales to pay to the applicant damages by way of compensation for any loss or damage suffered because of the conduct of Respondent 4.”
The applicant’s affidavit in support alleged as follows:
“The relevant provisions of the Act include: S28A – sexual harassment, S28F - sexual harassment in educational institutions, S105 – liability of persons involved in unlawful acts, S106 – vicarious liability, S21 - discrimination education
1. In 2001, the fourth respondent, Chaminda Abayawickrama, sexually harassed me by showing me an image of a penis and making sexual innuendoes. Dr Markovic made sexual comments about me of sexual object to the fourth respondent and did not stop the fourth respondent’s playing the image of a penis in front of these students in my office.
2. The University did not provide these students including the fourth respondent with training of information on awareness of sexual harassment law and equal opportunity policies.
3. The University sexually harassed me and discriminated against me on my PhD.”
The University was ultimately joined as a party to that proceeding pursuant to an order made by Barnes FM on 2 April 2008. Since that time, the applicant’s complaints of sexual harassment and discrimination have grown inordinately as reflected in the hundreds of pages of documents filed by the applicant as evidence in support of those claims.
On 11 February 2008, Driver FM dismissed the applicant’s proceeding against Mr Markovic and Mr Winder as well as the University. Driver FM noted that the complaints of sexual harassment were as follows:
“[65] The complaints of sexual harassment were:
a. that in 1999 Dr Markovic when speaking to students in the laboratory raised both his hands ‘likely to catch me’ (paragraph 1.3.1.1);
b. that in about September 2001 while Ms Huang was training with two other students Dr Markovic said ‘she has not been married but she needs sex. She is over 30 and near 40 but still has pimples in her face’ (paragraph 1.3.1.2);
c. against the fourth respondent (paragraph 1.3.1.2);
d. that in the second semester of 1999 Professor Winder touched her hip in a passageway when a door opened (paragraph 1.4.1.7).”
The applicant read and filed 59 affidavits in support of her case against Mr Markovic and Mr Winder, as well as hundreds of pages of annexures and other documents. The respondents relied on three affidavits, one from each of the respondents and one from a witness.
In the course of that judgment, Driver FM made the following comments in relation to the conduct by the applicant of the proceeding:
“[56] At the suggestion of Ms Oakley [counsel for the University], I gave leave for Ms Huang to file and serve by 31 October 2006 a single affidavit of no more than 50 pages giving evidence in reply to the oral evidence of the respondents’ witnesses presented at the hearing. I took this action noting the length of the hearing and the extensive nature of the oral evidence adduced. Ms Huang was unable to comply with the deadline due to illness and stress and was granted various extensions of time. The affidavit was eventually filed on 29 May 2007 and comprises 109 pages, with an eight page calculation of losses claimed attached (the claim was for $13,814,397.47) and a further 156 pages of exhibits. I nevertheless received those documents into evidence. Ms Huang sought and was granted the opportunity to file an amended affidavit correcting errors she had identified in the affidavit in reply. That affidavit was filed on 23 November 2007 and I received it. A revised table of claimed losses is annexed to it which details claimed quantifiable damages of $27,105,712.00 (my own calculation from the same table is $9,179,731.80) plus a claim for future unquantified damages.”
Driver FM noted that Ms Huang filed written submissions in support on 29 May 2007 comprising 395 pages.
Driver FM found that there had been no sexual discrimination by Mr Markovic and Mr Winder, being employees of the University and therefore no accessorial liability on the part of the University.
The hearing before Driver FM, which had been set down for three days, went for 18 days. Driver FM dismissed the applicant’s proceeding. However, the applicant appealed unsuccessfully to the Federal Court of Australia
On 18 December 2008, Bennett J dismissed an appeal from Driver FM. In the course of her reasons, Bennett J made the following observations:
“[74] Dr Markovic was cross-examined for three days and Professor Winder for two days. Ms Huang was told in advance that she would have only three days for the hearing. In fact, the hearing took 18 days. I do not see that the length of time allocated by the Federal Magistrate for the hearing of this matter was too short. The number of events, the content of the alleged sexual harassment and other actions of Dr Markovic and Professor Winder were not extensive. Additionally, Ms Huang had filed more than ample written material. His Honour was entitled to take steps necessary to ensure the efficient conduct of the litigation.
[75] Federal Magistrate Driver took pains to comment that Ms Huang’s case was particularly difficult and it was not because it raised difficult legal issues or because the relevant facts in dispute were particularly complex. His Honour cited the difficulties Ms Huang apparently had in conducting her case and that it was impossible to keep the proceedings within reasonable bounds because Ms Huang had been ‘unwilling, or unable to comply with the Court’s directions for the conduct of the proceedings’. His Honour also commented on Ms Huang’s mental state which, he observed, may in turn have been affected by the litigation process.
[76] I have experienced the same difficulty in dealing with Ms Huang’s case. Contrary to directions, Ms Huang filed hundreds of pages of written material, much of it repetitive and unfocussed. It was not directed to the issues that had been agreed between the parties with the assistance of a Registrar of the Court. It was not directed to the Federal Magistrate’s decision. I do not doubt that Ms Huang presently feels very deeply about her case and the decision that has been made. I must discern from the morass of material presented to the Court the errors said to have occurred in his Honour’s reasoning.”
On 2 April 2008, Barnes FM ordered that the applicant file and serve all affidavits to be relied upon in this proceeding against Mr Abayawickrama by 16 April 2008. On 16 April 2008, the applicant filed six affidavits sworn by her.
On 15 December 2010, Bartier Perry was instructed by the University to act on its behalf in this proceeding before this Court.
On 22 December 2010, the University filed an application in a case seeking that this proceeding be dismissed against the University on the basis that the applicant was in default within the meaning of r.13.03B(1) of the FMC Rules; or, alternatively that judgment be entered for the second respondent on the basis that the applicant has no reasonable prospects of success within the meaning of s.17A(2) of the Federal Magistrates Act 1999 (Cth) and/or r.13.10(a) of the FMC Rules; or, that the proceeding be dismissed against the second respondent on the basis that the proceedings are an abuse of process of the Court within the meaning of 13.10(c) of the FMC Rules.
On 19 January 2011, Mr Abayawickrama filed an affidavit denying the claims made by the applicant against him.
At the commencement of the University’s interlocutory hearing on 24 March 2011 before Cameron FM, the applicant gave to Mr Mattson in Court a bundle of three affidavits and a list of documents which Mr Mattson understood to be service by the applicant of her further evidence. This evidence by that time was some five months late. The list of documents provided by the applicant identified 195 documents. Those documents not only included documents filed in this proceeding but also included documents filed by the applicant in the Markovic and Winder proceeding, SYG1691/2003, and the Xiao proceeding, SYG577/2008.
On 28 March 2011, the University’s interlocutory hearing before Cameron FM to strike out the applicant’s proceeding resumed. On the same date, the applicant emailed to the Registry an application in a case that stated that she would seek leave to file before Cameron FM on that day. The application sought orders, inter alia, that judgment be entered in her favour and the University’s interlocutory application for summary dismissal be dismissed.
On 28 March 2011, Cameron FM refused leave to the applicant to file and rely upon that application. Cameron FM noted in his reasons dismissing the University’s application in a case seeking summary dismissal, that the applicant’s draft application in a case referred to above “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”.
At [12] of his reasons, Cameron FM said as follows:
“… 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… 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 to flow were the applicant to be successful, and it is unfair on the respondent’s that they seem to be dealing with a claim that is not set in stone, and it does seem to move.”
Having dismissed the University’s application for summary dismissal on 28 March 2011, Cameron FM also gave the applicant leave to file one further affidavit in support of her case by 10 June 2011. Cameron FM also made an order on that occasion that the matter be removed from his docket and returned to the Registry for reallocation. No affidavit was ever filed by the applicant in accordance with that direction.
The applicant’s claim against Mr Xiao was heard by Cameron FM in the period 26 July 2010 to 2 February 2012 and took 28 days. Judgment was reserved on 2 February 2012 and remains reserved.
In the meantime, this proceeding was then allocated to my docket and I had a first directions hearing on 11 May 2011. At that directions hearing, I was informed that the University had sought leave to appeal to the Federal Court of Australia in respect of Cameron FM’s decision, dated 28 March 2011.
On 15 June 2011, Flick J granted leave to the University to appeal Cameron FM’s decision.
On 27 March 2012, Reeves J dismissed the University’s appeal.

Directions hearings before me on 30 March 2012 and 7 May 2012

On 30 March 2012, I directed that the matter continue by way of pleadings.
At the directions hearing on 7 May 2012, I directed the applicant to file and serve by way of affidavit any evidence on which she relied by 3 July 2012, such affidavit to be no more than 10 pages, excluding annexures.
The applicant indicated at that directions hearing that she may also wish to call evidence from a witness, Ms Frank. I asked the applicant what was the nature of Ms Frank’s evidence and, upon the applicant’s response, directed that any evidence be filed and served by way of affidavit by 3 July 2012 and be no more than three pages, excluding annexures.
At the directions hearing on 7 May 2012, I also limited the evidence of the University in respect of identified witnesses, following discussion with Ms Sharp as to the nature of that evidence.
Leave was also given to the University on 7 May 2012 to serve a subpoena upon the applicant by 12 May 2012 to produce documents in relation to the applicant’s allegation of employment with the University. The orders also stated that no affidavit was to be accepted from any witness that did not comply with the orders.
These directions hearings are dealt with comprehensively, including the applicant’s conduct at those directions hearings, in the reasons given by me for dismissal of the applicant’s application in a case that I recuse myself. That application was heard by me on the same day as this application. Those reasons are to be found in Huang v Abayawickrama & Anor (No 1) [2012] FMCA 746 at [9]-[17], [23]-[32] and [38]-[41]. To the extent that they provide insight into the applicant’s behaviour in Court, they also form part of these reasons on the University’s application for summary dismissal. A copy of the paragraphs referred to is attached to these reasons for ease of reference and marked Schedule 1.

The University’s Defence filed on 4 June 2012 and subsequent correspondence with the applicant

On 4 June 2012, the University filed its defence. Paragraph 1 of the defence provided:
“The Second Respondent says that the Statement is Claim is embarrassing as well as an abuse of process. By filing this Defence, the Second Respondent does not waive its right to contend that the Statement of Claim bears that character and justifies appropriate orders of the Court including the summary dismissal of the Applicant’s claim.”
On 9 July 2012, the University’s solicitors, Bartier Perry, wrote to the applicant reminding her of the orders by me on 7 May 2012 that she file her evidence by way of an affidavit of no more than 10 pages excluding annexures by 3 July 2012 and, similarly, the order relating to Ms Frank’s evidence. The letter informed the applicant that the University had not been served with any evidence in accordance with those orders. The letter went on to say that if the evidence was not served by 10 July 2012 the University would approach the Court with a view to having the matter relisted without further notice.
On 10 July 2012, the applicant emailed a solicitor at Bartier Perry stating as follows:
“On 3 July 2012, I attempted to file and serve my affidavit to meet Order 5 but it was rejected by the Court on the reason that it is 97 pages more than ten pages.
On 8 July 2012, I lodged my application in a case to seek order to be appointed a lawyer to assist me for this affidavit but the application in a case was also rejected.
In relation to Order 6, I believe it was a mistake by Her Honour, as I requested to have evidences from my treating doctors but not Ms Sybille Frank who has been acting on behalf of the University and given evidence on behalf of the University.”
Mr Mattson deposed that at no stage had the University been provided with a draft of the affidavit proposed to be filed by the applicant.
In relation to the University’s subpoena to the applicant (in respect of which leave was given by me on 7 May 2012), the University’s solicitor, Mr Mattson, emailed the applicant on 11 May 2012 informing her that the subpoena had been issued and a copy of the subpoena was attached to the email. The email also stated that the process server had informed the University’s solicitors that, despite the applicant being present in her home, she did not answer the intercom to allow the process server access to give her the documents. The email also stated that a solicitor from Bartier Perry telephoned the applicant in the afternoon of 11 May 2012 and after identifying herself to the applicant, the applicant terminated the telephone call. The email informed the applicant that the second attempt to telephone the applicant had gone unanswered and that the applicant had failed to return the telephone call.
The email went on to say that the process server had been instructed to continue to attempt to serve the applicant over the weekend and to arrange for a copy of the subpoena and conduct money to be left in the applicant’s mailbox if she did not accept personal service. The email stated that in the event that service was unable to be effected that an application would be made for substituted service. The email stated: “We do not understand why you are avoiding service. You are the applicant in these proceedings and the documents we have sought are relevant to the issues in the proceedings”.
On 22 May 2012, Mr Mattson from Bartier Perry sent the applicant a further email stating as follows:
“Further to your request, I called your mobile to notify you that I was sending this email, but you did not answer my call.
We refer to our email below and the attached subpoena. We note that you have used your email since 11 May, and in particular used it to serve documents on us at 10:56am on 22 May 2012.
We understand that the subpoena, our covering letter and a cheque was also left in your mailbox.
We note that the return date for the subpoena is Monday 28 May 2012 at 9:15 am. We will be calling on the subpoena at that time.
If you do not attend and produce documents in answer to the subpoena at that time, we will be filing an application in a case seeking various orders, including orders for substituted service. We may also rely on this matter to support a future strike out application if there is any non-compliance by you with the orders of the Court.”
The applicant ultimately responded to this subpoena and produced 372 pages of documents.

The numerous Court events

Mr Mattson deposed that since 23 September 2004, when the applicant filed this proceeding, the matter has been before the Court on about 35 occasions. This is in addition to the numerous Court events in which the University has had to participate in relation to the Markovic and Winder proceeding and the Xiao proceeding, all of which allege the same accessorial liability of the University arising out of the alleged conduct of all the respondents towards the applicant whilst the applicant was attending the University. The applicant has filed an excessive number of voluminous documents in this proceeding over the years, particularly in respect of a matter where the initial allegations made by the applicant were half a page. Her claims change and expand regularly and the mass of material she has filed makes it nigh on impossible to discern or comprehend what in fact her case is about.

Unpaid costs orders

Mr Mattson deposed that the fees estimated from 15 December 2010 to July 2012 are about $40,000, excluding the fees relating to the appeal from Cameron FM’s decision and do not include the fees incurred by the University in defending the applicant’s other proceedings against the University and the other respondents Markovic, Winder and Xiao or the University’s costs in this proceeding prior to retaining Bartier Perry solicitors.
Mr Mattson also deposed to two costs orders in this proceeding made in favour of the University. The first was made on 14 April 2009 in the amount of $2,785. The second was made on 7 November 2008 in the amount of $205. None of these have been paid.

Prejudice to the University caused by the delay

Mr Mattson also deposed that the allegations made by the applicant relate to conduct allegedly occurring in 2001 and that the school in which the applicant was a student closed in December 2010, Dr Markovic is no longer in the employ of the University and a student that the applicant alleged witnessed certain of the events cannot be located. Counsel submitted that these facts prejudice the University’s ability to properly defend itself against the applicant’s allegations of conduct engaged in by Mr Abayawickrama in 2001.
Mr Mattson also deposed that the University would wish to call Mr Abayawickrama as a witness which would involve it having to fly him from Sri Lanka to Sydney to appear in Court with accommodation costs and other expenses payable likely to be $2,500 to $3,500. If Mr Abayawickrama was granted leave to give evidence by way of video, the costs would be in the order of $1,500 to $2,000 in fees with the Federal Court Registry and the costs of a Sri Lankan video conference are unknown. Mr Mattson also deposed that Mr Abayawickrama lives in Sri Lanka and has been out of Australia since 2002 and the University has no telephone number for him. Mr Mattson deposed that communications with Mr Abayawickrama occurred between 19 April 2011 and 25 May 2011. Mr Mattson attached various attempts to contact Mr Abayawickrama made over the years by the University’s lawyers.
On 12 May 2011, a further email was sent by Mr Abayawickrama to the University’s lawyers stating as follows:
“I received your documents and thank you for the same. I am not clear as to what it means by ‘involve’ but anyway I would appreciate if you would solve this matter. Please explain me by way of return mail what I have to do.”
On 19 May 2011, Mr Abayawickrama sent an email to the University’s lawyers saying he had received their documents and saying “please advise me what to do. I would like to go ahead with you”.
The University sent copies of the appeal notice and appeal book from Cameron FM’s decision to the first respondent seeking his input. However, no reply seems to have been received from Mr Abayawickrama.
Mr Mattson said in his affidavit that he was hopeful, but not certain that the University would be able to obtain an affidavit from Mr Abayawickrama should the matter proceed further. He deposed that Bartier Perry had not heard from Mr Abayawickrama after May 2011 until 15 May 2012 and that he did not reply to any emails from Mr Mattson in June 2012.

Cross-examination of Mr Mattson by applicant

The applicant cross-examined Mr Mattson for some time to no conceivably relevant or constructive effect. Nearly all of the questions asked by the applicant were inadmissible, were objected to by counsel for the University nearly always on the grounds of relevance and were rejected by me.

Applicant’s evidence in response

The applicant then gave evidence on her own behalf in which she said she was willing to prepare and conduct the proceeding, that she has a mental disability that affects her concentration and that she has very poor mental condition and finds it hard to concentrate as well as having a difficulty with English. She said many times that she believes her case will succeed.
The applicant said that on 3 July 2012 she attempted to file a 97 page affidavit, together with 400 pages of annexures, which the Registry refused to accept, having regard to the order made by me on 7 May 2012 that any affidavit filed by the applicant be no more than 10 pages, excluding annexures. She said that she had intended to serve a copy on the University but when the filing was refused she had not wanted to waste the University’s time having to read the affidavit.
In relation to Mr Mattson’s assertion that the applicant was evading service of the subpoena, the applicant gave evidence that the University’s solicitors knew she did not have the internet and knew she did not have time to read her emails. She stated that she did not evade service but that she had received threats to kill her following the Xiao proceeding and that she lived with her mother who never answered the door or telephone. She said that no subpoena was given to her in person and that it was placed at her front door and that she did not see anybody. However, she said she complied with the subpoena despite the difficulties. She then said any difficulty the University had in serving the subpoena was their problem. She conceded that the University had called her once on her mobile telephone but that her mobile telephone was out of battery.
In addition to giving oral evidence, the applicant read an affidavit sworn by her on 1 August 2012 in response to the University’s application for summary dismissal. Following objections by Ms Sharp and rulings by me the applicant’s affidavit was as follows:
“1. Under the extreme difficulties that I have seriously suffered, the mental disabilities, I am not a lawyer and I had English difficulties, I have pushed myself very hard, have worked very hard, and have made every effort to prepare, complete and filed the affidavit, in order to comply with Order 5 her Honour FM Emmett on 7 May 2012.
2. On 3 July 2012, I repeatedly requested the Court ot file the affidavit in order to comply with Order 5 made by her Honour FM Emmett on 7 May 2012, but it was not accepted to be filed based on Orders made be her Honour on 7 May 2012 on the reason that it was over ten pages.
4. I was unable to meet Order 5 made by her Honour FM Emmett on 7 May 2012. It was because I ma not a lawyer and because of the mental disabilities that I have seriously suffered.”
The applicant annexed to her affidavit a copy of the email referred to in paragraph 43 above.
The applicant also tendered a document headed “Particularised Statement of Claims – Amended”. Its tender was objected to by counsel for the University on the grounds of relevance. However, the document was admitted by me and marked Exhibit 3A. Despite its tender by the applicant, no submission was made by the applicant in relation to that document. Accordingly, I have had no regard to the document.
The applicant also sought to tender her affidavit of 90 pages, including 407 pages of annexures, in support of her claim that she had attempted to file the affidavit on 3 July 2012. However, upon the University’s objection to the tender on the basis of its concession that the applicant had in fact attempted to file the document on 3 July 2012, I rejected the tender on the ground that it was not relevant. Moreover, the document did not comply with the directions made by me on 7 May 2012 and was not by itself capable of proving the applicant’s compliance with those directions.
The applicant also sought leave at the hearing of the interlocutory application to file in Court and rely upon an application in a case seeking orders that she be provided with a pro bono lawyer to assist her. In support of that application, the applicant sought leave to file in Court the same 497 page document that I had earlier rejected. Leave was refused to the applicant to file the further application in a case and the affidavit.
I consider the applicant’s attempt to file such a document as another example of the delaying tactics used by the applicant in her continued effort to prevent the matter being dealt with in accordance with the Court’s case management directions. As stated above, s.42 of the Federal Magistrates Act 1999 (Cth) requires the Court to endeavour to ensure that proceedings are not protracted. Sections 51, 55 and 56 of the Federal Magistrates Act 1999 (Cth) enable the Court to limit the length of documents, oral arguments and written submissions respectively.

The applicant’s general practitioner’s medical report dated 4 July 2012

The applicant then sought to tender medical reports of various doctors. However, on 6 August 2012, the University’s lawyers wrote to the applicant informing her that the doctors whose reports she relied upon would be required for cross-examination and that if they were not available for cross-examination, the tender of their reports would be objected to.
The applicant said that she did not receive the letter from the University’s solicitors, dated 6 August 2012. For that reason, I stood the matter down and gave the applicant a short amount of time to contact the doctors to see if any of them would be available for cross-examination by telephone.
The applicant’s general practitioner, Dr Moore, provided a report dated 4 July 2012 and was available by telephone. Accordingly, leave was given to cross-examine Dr Moore by telephone. Dr Moore’s report was tendered and marked Exhibit 5A and is in the following terms:
“I am writing to inform you that Hong Huang is suffering from obsessive compulsive disorder. She has been very stressed in the last three days to try to complete her affidavit for the Court. Unfortunately her document was over 90 pages long. This has unfortunately been rejected and she has been asked to reduce the length of her submission. Due to her illness she finds it very difficult to do this. Would it be possible to have a lawyer appointed for her to help her complete her document in this volume.”

In cross-examination, Dr Moore agreed that she is not an expert on obsessive compulsive disorder, that she had not diagnosed the applicant with that disorder, that she had accepted a report of that diagnosis in 2008 and was satisfied from her clinical observations that the applicant suffered from obsessive compulsive disorder. However, Dr Moore agreed that she had not pursued any further formal tests or diagnoses. Dr Moore said that, at present, the applicant is not medicated and is not being treated for that disorder. Dr Moore said that she had referred the applicant to various specialists but that she had not received letters back from those specialists. Dr Moore assumed in those circumstances that either the applicant had not seen the doctors or that they had not written reports.
Dr Moore agreed that the applicant had told her on 4 July 2012 that she was finding it difficult to make a document of under 90 pages and told Dr Moore that it was an affidavit. Dr Moore said that she did not take any steps to look at the document and simply accepted the applicant’s word.

Applicant’s oral submissions

In oral submissions in response to the University’s application, the applicant said that it was an abuse of process for the University to bring this application given that it had been determined by Cameron FM and Reeves J in prior proceedings and that the University should be estopped from bringing this application. Such a submission misconceives the notion of estoppel which does not apply to interlocutory orders (see Windsor v Sydney Medical Service Cooperative Ltd (No 2) [2009] FCA 704 at 7 per Edmonds J). Cameron FM’s decision was a decision in respect of an interlocutory application and the appeal from that application by Reeves J was only in respect of orders made by Cameron FM on that interlocutory application.
In any event, the basis for the present application by the University is quite different from that considered by Cameron FM and Reeves J. The University relies upon further conduct of the applicant after 27 March 2012.
Further, the applicant said that if I proceeded to find against her in respect of either of the present interlocutory applications, she would simply appeal to the Federal Court and they would understand her case and it would be sent back to this Court.

Applicant’s confirmation of no further evidence or submission

I confirmed with the applicant at the end of her evidence that there was nothing further she wished to say and no further document she wished to tender in relation to the University’s application for summary dismissal.

Further attempts by applicant to tender material following conclusion of submissions

I then invited counsel for the University, Ms Sharp, to make submissions in support of the University’s application for summary judgment. Following Ms Sharp’s submissions, I invited the applicant to make submissions in response. At the conclusion of the applicant’s submissions I invited Ms Sharp to make submissions in reply.
At the conclusion of Ms Sharp’s submissions, the applicant waved another two documents at me and said she wished now to tender further material. At that point, I said that no further material would be accepted from her and that she had had every opportunity to tender whatever she wished and to say whatever she wished in response to the University’s application.
I then informed the parties that I would reserve judgment on this application and the applicant’s application that I recuse myself, heard by me immediately prior to this application, and notify the parties when reasons were ready for publication. I further directed that neither party file any further document in the proceeding.

Applicant’s conduct before me

Throughout the hearing of the interlocutory applications heard together (being this application and the applicant’s application that I recuse myself), the applicant regularly sighed loudly when Ms Sharp made statements with which she did not agree; regularly waved her hands; regularly talked over the top of me, the interpreter and Ms Sharp; and, made many unnecessary and baseless complaints and objections. The applicant’s conduct in Court made the proper conduct of the hearing of the applications extremely difficult. That has been my experience of the applicant’s conduct in this proceeding on every occasion she has appeared before me. As stated above, her conduct at the hearing of the present interlocutory applications is detailed above and her conduct at the directions hearings before me is cited from Huang v Abayawickrama & Anor (No 1) [2012] FMCA 746 in Schedule 1 attached.

Findings and conclusions

Over the years the Federal Magistrates Court has only endeavoured to give the applicant every opportunity to identify the juridical basis of her case and to file evidence in support of her application and set her matter down for hearing. At almost every turn, the applicant has filed some further interlocutory application that has to be dealt with, thereby causing the needless delay of the final hearing. As Mr Mattson deposed, there have been 35 Court events in this proceeding. I am satisfied that the applicant’s numerous interlocutory applications have no purpose other than to prolong her case.

Throughout all the directions hearings and the hearing of the interlocutory applications before me, the applicant has continued to complain that the Court has refused to provide her with a pro bono lawyer. As stated above, she will neither listen, nor attempt to absorb or understand, that she has no right to a pro bono lawyer and that the Court cannot order that a lawyer appear for her.
I raised with the applicant the possibility of an appointment of a litigation guardian. Her response was that she may not agree with what the litigation guardian may do. Given that any such litigation guardian appointed would have a costs exposure and in the light of the applicant’s conduct of this proceeding, I consider that it would be legally undesirable to make such an order.
The applicant is quick to tell the Court that she is a well-educated scientist when it suits her and a disabled pensioner on other occasions when it suits her. Whilst she has suffered costs consequences in the past, they have never been paid. The applicant asserts that she has no assets. In the circumstances, I am satisfied that it is highly unlikely that any costs order made against her would be paid if the matter was to proceed to a final hearing and either respondent was successful. I am also satisfied that if the matter continues, the applicant will continue to make every attempt to draw the matter out in the manner she has before and to continue to conduct her case in an obfuscatory and oppressive manner.
The applicant has never articulated her claims in writing in a way that would enable either the respondents or the Court to identify with any confidence the juridical basis for her claims or precisely what her claims are. As stated above, her allegations of sexual discrimination expand on every occasion that she takes to file evidence in support. Her claim against the respondents is a continual moving feast contained in a morass of material.
At the directions hearing on 30 March 2012, the applicant told 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.
At that directions hearing, I directed that a fully particularised statement of claim in accordance with the FMC Rules be filed by the applicant by 27 April 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 prolix mixture of assertions, submissions, quotations from legislation and unnecessary, often condemnatory, commentary. It was put together in an incoherent and random fashion that, as a pleading, was embarrassing.
The document also repeated allegations against persons who are not parties to this proceeding, being Mr Markovic, Mr Winder and Mr Xiao. As stated above, allegations of sexual discrimination and harassment against Mr Markovic, Mr Winder and the University were dismissed by Driver FM and an appeal from that decision was dismissed by Bennett J. The document also repeats allegations against Mr Xiao and the University in respect of whom the applicant has a finalised proceeding pending judgment.
Ms Sharp submitted that the “Particularised Statement of Claims” was prolix and unclear. However, Ms Sharp had attempted to distil 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 30 March 2012. They also went far beyond the allegations in the applicant’s affidavit filed on 23 September 2004 in support of her initiating substantive application and quoted at paragraph [12] above.
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.
Because of the incomprehensible and garbled nature of the document, I cannot be certain whether Ms Sharp’s attempt at distilling the complaints against the respondents is correct.
Further, the order I made that the applicant file evidence in support of her application by way of an affidavit of no more than 10 pages, excluding annexures, by 3 July 2012 has not been complied with by the applicant. The attempt by the applicant to file a 90 page affidavit with 407 pages of annexures is clearly not compliant with the Court’s direction.
The defaults of my orders were made by the applicant in the context of the history of her past defaults and the continuing oppressive manner in which she has engaged in this litigation.
The applicant’s oppressive conduct has included: the regular failure to comply with the Court’s orders; her continued interruptions; her irrelevant, baseless and misconceived complaints; her filing of an excessive mass of material over a period of years; her continued unacceptable conduct in Court protracting any directions hearing or interlocutory hearing in which she participates; her propensity to seek to file documents the day before any hearing or at the hearing; her regular failure to listen to or comply with any direction made by the Court; and, her excessive filing of unnecessary and baseless interlocutory applications often immediately before a scheduled Court event or at that Court event. I infer that such conduct is a deliberate tactic by the applicant to delay the final determination of her case.
It is well established that cases need to be dealt with expeditiously if they are to be dealt with justly (Bi v Mourad [2010] NSWSC 17 per Allsop J). I accept Mr Mattson’s evidence that the science school in which the applicant was a student, and at which the alleged incidents occurred has now closed, and that witnesses are either unable to be located or difficult to locate and would be required to recall events more than 10 years ago. In the circumstances, I accept that there is real and significant prejudice to the University by reason of the eleven years that have elapsed since the alleged conduct is said to have taken place if the proceeding was to continue.
Moreover, I am satisfied that the applicant was indeed seeking to evade service of the University’s subpoena. The applicant plainly has the capacity and ability to send and receive emails when it suits her. Further, she gave no explanation as to why she hung up on the University’s solicitors telephone call to her home or why she did not telephone back the University’s solicitors if her mobile telephone had run out of battery.
I find that the applicant’s conduct demonstrates an unwillingness to cooperate with the Court and the respondents in preparing the matter for trial within an acceptable period. Her non-compliance of directions made by the Court continues to cause unnecessary delay, expense and prejudice to the respondents. Such conduct is unjustifiably oppressive to the respondents (see Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 452; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388).
Using the Court processes in an unjustifiably oppressive fashion to the respondents brings the administration of justice into disrepute (see Rogers v The Queen (1994) 181 CLR 251 per McHugh J at [53]). In my view, for the applicant to be able to continue her proceeding in light of the way in which the matter has been conducted would bring the administration of justice into disrepute among right-thinking people (see Walton v Gardiner (1993) 177 CLR 378 at 393).
To be an abuse of process the applicant’s conduct must be able to be characterised as something more than unfair to either respondent. However, abuse of process does extend to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment” (see Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75 per French CJ, Gummow, Hayne and Crennan JJ at [28]). The manner in which the applicant has conducted herself in this proceeding is seriously and unfairly burdensome and prejudicial to the respondents and is itself bordering on serious and unjustified trouble and harassment.
The applicant has had many opportunities to simply file her evidence and have her matter heard and determined.
Over the years, as stated above, the applicant has continued to file many excessively lengthy documents that are unclear, prolix, dense and largely incomprehensible. In Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189 at [24], Sully J said as follows:
“I say again, and say it with emphasis, it is time that all litigants understood that it is no part of the judicial duty to accept an undifferentiated mass of documentary material as though it were a matter of course that the Judge will simply wade through it hoping that, after hours or, in a case of the present kind, days, of reading at large, he will somehow manage to identify correctly what the parties thought they were putting before him in the first place.”
The applicant seeks to set up her diagnosis as suffering obsessive compulsive disorder as a reason why she is not able to confine her case in the way required. She is a seasoned litigant before this Court. I do not accept that the disorder from which she claims to suffer is a sufficient explanation for her complete disregard for the manner in which litigation should be conducted. Her own general practitioner said that she is not presently on medication for her condition and that the general practitioner has simply accepted the applicant’s assertion that she could not confine her affidavit in accordance with the Court’s directions. In the circumstances, I do not accept that her disorder is any, or any reasonable, excuse for her conduct.
There has been no credible explanation or adequate justification given by the applicant for her defaults. It is the Court’s function to dispense justice with impartiality and fairness both to the parties and to the community which it serves. The Court possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness (See Jago v District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at [28]). There is a broad public interest in the efficient allocation of the Court’s resources amongst all suitors and it is a consideration to which I have regard in considering the overall interests of justice. It is well recognised that the resolution of disputes serves the public as a whole and not merely the parties to a proceeding (See Aon Risk Services v Australian National University [2009] HCA 27 (“Aon Risk Services”) at [113]; Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490 (“Reliance Financial Services”) per Pembroke J at [26] and [27]).
To date, the applicant, having initiated her complaint against five respondents in 2001 including Mr Abayawickrama and the University, has had 46 days of final hearings in the Federal Magistrates Court in respect of her allegations against the University arising from alleged sexual discrimination by employees and students of the University, including Mr Abayawickrama. In addition there have been an excessive number of days spent in determining unnecessary and baseless interlocutory applications filed by the applicant.
I have no confidence that the present matter, if it was to proceed to final hearing, would be able to be confined in the way I have sought to do by my directions given on 7 May 2012. This Court does not have the resources to indulge such an applicant and, indeed, in my view, to indulge such conduct and behaviour would be antithetical to the need to maintain public confidence in the judicial system at large.
It is readily accepted that litigation imposes stress and strain on personal litigants. However, the stress and strain on corporations is now also recognised and accepted at the highest appellate levels in the United Kingdom and Australia (see Reliance Financial Services per Pembroke J at [31]). In Aon Risk Services at [101], their Honours Gummow, Hayne, Crennan, Kiefel and Bell JJ stated as follows:
“But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effect supon its liability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court’s Procedures Rules, of minimising delay, may be take to recognise the ill-effects of delay upon parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution to their proceedings.”
The applicant has not demonstrated the remotest respect for the rules of litigation or the formalities of the Court. For a person who is well-educated and who has represented herself for eleven years, she has little insight into, and regard for, the importance, relevance and application of Court management principles and directions.
The applicant has pursued an unnecessary interlocutory application that I recuse myself (see Huang v Abayawickrama & Anor (No 1) [2012] FMCA 746). In respect of the University’s application for summary dismissal, the applicant has taken unnecessary and baseless objections to evidence filed against her and engaged in needless, pointless and irrelevant cross-examination. As stated above, I have no confidence at all that the matter would be conducted by the applicant any differently in the future. It has become near impossible to control the applicant’s conduct.
As stated above, the applicant has had many opportunities to identify her claim and the juridical basis for that claim in proper form and to file proper and admissible evidence in support. She has failed to do so and has failed on every occasion before me to conduct herself in any reasonable or measured way. As stated above, the applicant has significantly and unnecessarily protracted each Court event before me. I find that her conduct of her case has now become vexatious and is now a clear abuse of the Court’s processes.
There has to be an end to the opportunities given to the applicant to identify a case in accordance with the FMC Rules and to file evidence in support. Those opportunities have been ignored by the applicant. In my view, to allow the continuation of this proceeding against either respondent is so unfairly and unjustifiably oppressive in light of the applicant’s conduct that it constitutes an abuse of process and its continuation is likely to bring the administration of justice into disrepute.
The conclusions I have reached have been made in the context of the history of the applicant’s conduct up until the time that the matter came into my docket as well as the applicant’s conduct before me. As stated above, her conduct of her proceeding is entirely oppressive and I find that she has no genuine desire to bring the matter to conclusion.
The orders I propose to make have been considered in the light of the knowledge that the power to dismiss cases summarily ought to be very sparingly exercised and only in exceptional cases (see Sea Culture International v Scoles [1991] FCA 523 per French J at [12]). In my view, Ms Huang certainly falls into the exceptional category in relation to her lack of cooperation and unwillingness to have her matter brought to conclusion and the way in which she conducts herself in Court. It is well recognised that what amounts to an abuse of Court process is insusceptible of a formulation comprising closed categories (see Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256 per Gleeson CJ, Gummow, Hayne and Crennan JJ at 265).
The proceeding against the University should be dismissed as an abuse of the Court’s process and pursuant to r.13.03B(1) and r.13.10(c) of the FMC Rules.

Proceeding against Mr Abayawickrama

The proceeding against Mr Abayawickrama should also be dismissed as an abuse of the Court’s process, having regard to the applicant’s general conduct of the proceeding against both respondents and my finding that the applicant’s conduct demonstrates that she will continue to protract the proceeding and conduct her litigation in a manner that would continue to abuse the Court’s process and delay a final hearing. I do not have the remotest confidence that her conduct would be any different if she was allowed to continue her proceeding against Mr Abayawickrama only.
Mr Abayawickrama has been in Sri Lanka since 2002 and does not appear to have attended any Court event since that time. However on 19 January 2011, he filed an affidavit denying the claims made by the applicant against him. It is unclear to me whether all the material filed by the applicant in this proceeding has been served upon him in Sri Lanka.
On 22 October 2008, Cameron FM found that Mr Abayawickrama, who had resided in Sri Lanka since 2002, had not been effectively served. On 14 April 2009, Cameron FM made a further order giving the applicant leave to serve Mr Abayawickrama by 14 June 2010 with the following documents:
a)orders made by Cameron FM on 14 April 2009;
b)the application filed on 23 September 2004;
c)the applicant’s affidavit filed on 23 September 2004;
d)the information sheet filed on 23 September 2004; and
e)the applicant’s notice of address for service filed on 19 January 2005.
On 31 July 2010 an affidavit of service was filed by the applicant deposing that Mr Abayawickrama was personally served on 18 July 2009 with the specified documents.

No affidavit has been filed by the applicant in respect of service of the affidavits upon Mr Abayawickrama in respect of the six affidavits filed by her on 16 April 2008 and the three affidavits filed by her around 24 March 2011 and served on the University in Court on 24 March 2011.
On 7 May 2012, I directed the applicant to serve upon Mr Abayawickrama a copy of the orders made by me on that date.
On 15 May 2012, the applicant filed an affidavit of service deposing that she had posted on 27 April 2012 to Mr Abayawickrama in Sri Lanka a copy of the Court’s orders dated 7 May 2012 and the document headed “Particularised Statement of Claim” filed by the applicant on 27 April 2012.
There is nothing before me to suggest that Mr Abayawickrama is aware of the full mass of material that has been filed in this proceeding by the applicant, nor that he is aware of this interlocutory application or the applicant’s interlocutory application that I recuse myself. I am not satisfied that he has been made aware of all of the documents filed and the Court events since he filed his affidavit on 19 January 2011 denying the applicant’s allegations, beyond those documents in respect of which the applicant has filed affidavits of service.
I refer to r.1.40(a) and r.26(1)(d) of the Federal Court Rules 2011 (Cth) (“the Federal Court Rules”) which clearly gives the Court power to dismiss a proceeding for abuse of process on its own initiative. Rule 1.05 of FMC Rules provides that this Court may apply the Federal Court Rules where the FMC Rules are insufficient or inappropriate. The FMC Rules are not in the same terms as the Federal Court Rules and make no express provision for dismissing a proceeding for abuse of process on the Court’s initiative. However, neither do they say that the Court can only make such an order upon application.
Further, and in any event, it is well established that the Court has inherent power to prevent misuse of its procedures. In Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, Lord Diplock stated the principle as follows:
“the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.
In this case, as stated above, the applicant has regularly misused the Court’s procedures and case management attempts to restrain her behaviour and assist her to prosecute her case in a timely and proper fashion.
In the circumstances, the proceeding against Mr Abayawickrama should be dismissed as an abuse of the Court’s process pursuant to the Court’s inherent power to prevent misuse of its procedures; as well as pursuant to r.13.03B(1) and r.13.10(c) of the FMC Rules; or, alternatively, pursuant to r.1.40(a) and r.26(1)(d) of the Federal Court Rules.

Conclusion

Accordingly, Orders 1 and 2 sought by the University in the application in a case filed on 17 July 2012 should be made and the proceeding against the University dismissed as an abuse of the Court’s process and pursuant to r.13.03B(1) and r.13.10(c) of the FMC Rules.
In the circumstances, the proceeding against Mr Abayawickrama should also be dismissed as an abuse of the Court’s process.
The applicant should be ordered to pay the costs of the second respondent in respect of this application.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 27 August 2012

SCHEDULE 1

Quotations from Huang v Abayawickrama & Anor [2012] FMCA 746 forming Schedule 1 to Huang v Abayawickrama & Anor (No.2) [2012] FMCA 747 at [39]

A. Paragraphs [9]–[17]

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.

B. Paragraphs [23]-[32]

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.”

C. Paragraphs [38]-[41]

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.