Huang v University of New South Wales

[2014] FCCA 644

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUANG v UNIVERSITY OF NEW SOUTH WALES & ANOR [2014] FCCA 644

Catchwords:
HUMAN RIGHTS – Sexual harassment.

Legislation:

Australian Human Rights Commission Act 1986, ss.46PO

Sex Discrimination Act 1984, ss.21, 28A, 28B, 28F, 94, 106

Cases Cited:
Huang v University of New South Wales [2008] FMCA 11
Huang v University of New South Wales [2008] FCA 1930
Huang v Abayawickrama [2012] FMCA 747
Huang v Abayawickrama [2012] FCA 1504
Huang v University of New South Wales [2005] FMCA 463
Leslie v Graham [2002] FCA 32
CGU Insurance Ltd v Porthouse (2008) 235 CLR 103
Jandruwanda v Regency Park College of TAFE [2003] FCA 1455
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721
Huang v University of New South Wales (No.5) [2010] FMCA 975
Damberg v Damberg (2001) 52 NSWLR 492
South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402

Applicant: HONG CUI HUANG

First Respondent: UNIVERSITY OF NEW SOUTH WALES

Second Respondent: FUCHUN XIAO

File Number: SYG 577 of 2008

Judgment of: Judge Cameron

Hearing dates: 26-29 July 2010; 23-25 August 2010; 17, 23-24 September 2010; 20 October 2010; 8 December 2010; 3 and 18 February 2011; 11 and 25 March 2011; 18 April 2011; 20 and 27 May 2011; 17 and 28 June 2011; 19 July 2011; 2, 11, 26 and 29 August 2011; 22 September 2011; 12 October 2011; 14 and 30 November 2011; 1, 8-9 December 2011; 1-2 February 2012; 31 March 2014

Date of Last Submission: 2 February 2012

Delivered at: Sydney

Delivered on: 4 April 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr I. Latham on 26-29 July 2010, 23-25 August 2010, 17, 23-24 September 2010, 20 October 2010 and 8 December 2010
Ms J. Oakley on and after 3 February 2011

Solicitors for the First Respondent: Bartier Perry

The Second Respondent appeared in person

ORDERS

1. The question ordered to be answered separately be answered as follows: “No”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 577 of 2008

HONG CUI HUANG

Applicant

And

UNIVERSITY OF NEW SOUTH WALES

First Respondent

FUCHUN XIAO

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Ms Huang, was a doctoral student at the University of New South Wales (“UNSW”), the first respondent in this proceeding.  At times the second respondent, Dr Xiao, was also a UNSW doctoral student.

2. By letter dated 31 October 2002 Ms Huang complained to what was then the Human Rights and Equal Opportunity Commission (“HREOC”) that Dr Xiao had sexually harassed her.  HREOC terminated Ms Huang’s complaint by a notice of termination dated 28 July 2003.

Procedural history

1. On 21 August 2003 Ms Huang commenced proceeding SZ1691/2003 in this Court.  This matter was originally part of that proceeding (“original proceeding”) which involved UNSW, Dr Xiao and three other parties.  The claims made in the original proceeding against two of the individual respondents, Associate Professor Winder and Dr Markovic, and the claims against UNSW which related to those claims, were dismissed by Driver FM on 11 February 2008: Huang v University of New South Wales [2008] FMCA 11. An appeal from that decision was dismissed by Bennett J on 18 December 2008: Huang v University of New South Wales [2008] FCA 1930. The claim against the other party, Mr Abayawickrama, was removed into a separate proceeding and dismissed at first instance by Emmett FM: Huang v Abayawickrama [2012] FMCA 747 and on appeal by Rares J: Huang v Abayawickrama [2012] FCA 1504.

2. Before Driver FM heard Ms Huang’s claims against Associate Professor Winder, Dr Markovic and UNSW, his Honour heard on a separate basis Ms Huang’s claims concerning Dr Xiao.  On 16 May 2005 his Honour dismissed those claims: Huang v University of New South Wales [2005] FMCA 463 (“initial judgment”). However, on 25 May 2006 Rares J allowed an appeal against that decision and, amongst other things, ordered:

   4.The order made by the Federal Magistrates Court on 16 May 2005 be set aside and in lieu thereof it be ordered that:

   (1)There be heard separately and apart from all other issues in the proceedings all questions of liability and damages relating to the issues raised in paragraphs 15-18 of the Particulars of My Application filed by the applicant on 29 October 2004 as between:

   (a)    The applicant and the fifth respondent; and

   (b)    The applicant and the first respondent in respect of any vicarious or other legal liability of the first respondent for any conduct of the fifth respondent the subject of question (a) above;

   (2)Order (1) take effect for the purposes of the proceedings as if it had been made on 10 March 2005.

   5.There be a new trial of the question referred to in Order 4 (‘the Question’).

   In that appeal proceeding UNSW was the first respondent and Dr Xiao was the fifth respondent.

3. This is the remitted proceeding.  Following the appeal judgment, rather than continue the matter in this Court in the original proceeding, SZ1691/2003, Ms Huang re-filed a copy of the application which had commenced her action.  As a result, her claim against Dr Xiao has thereafter proceeded separately in this proceeding, SYG577/2008.

4. On 21 September 2009 I made an order for the separate determination of the following question:

   Did the respondents breach the Sex Discrimination Act 1984 (Cth) as alleged by the applicant?

   These reasons are concerned with the answer to that question.

Allegations

1. The particulars of the application referred to in the orders of Rares J were, at that time, relevantly in the following terms:

   B. The fifth respondent’s sexual harassment and victimisation – breaches of S28A, S28F(2), S94, S106, and S21(2) of SDA by the first and fifth respondents

   15.In about semester 2 of 1999, when I asked the fifth respondent showed me how to read Chinese new paper from Internet, he sexually harassed me by showing me pictures in which a naked girl postured very sexily and lustfully on a computer screen.

   16.In August or September 2001, when the fifth respondent provided me assistance to install software with reading function from Internet into my computer, he sexually harassed me by showing me about three pornographic pictures, in which there was a naked man with a naked woman who were intending having sex.  When showing me a pornographic picture, I was shocked and asked him not to do it, but he still got into other pornographic pictures, and then I told him leaving.

   17.Several times probably in 2001, in room 119 of building B11a, I saw pornographic pictures showed by the fifth respondent on the computer screen.

   18.Because I complained about the fifth respondent’s sexual harassment, twice on 3 and 30 August 2004, he victimised against me and subjected me to mental distress by cursing loudly at me: “Fuck you! Bitch!” and threatened to subject me to fear of being killed by saying in greater anger: “I will kill you”.

2. Those particulars were amended and the matter now proceeds on the basis of a document entitled “Particulars of My Applications (amended for paragraph 15-18)” filed on 26 February 2009 which is prolix but little different in substance from the original particulars.  That document has also been further amended as a result of subsequent applications in a case by which Ms Huang has sought to refine or clarify her allegations.

Background

1. In her amended particulars Ms Huang claimed that she and Dr Xiao had been located in the same office, room 119 of building B11a in UNSW’s School of Safety Science.[1]

   [1]     Amended particulars page 3.

1999

1. Ms Huang alleged that in about session 2 of 1999 she asked Dr Xiao to show her how to access Chinese newspapers on the internet.  She alleged that after he had accessed a Chinese newspaper on-line, he opened a separate window on the right hand side of that website and showed her a pornographic picture displaying a naked girl “postured very sexily and very lustfully”.[2]  Ms Huang alleged that in doing so Dr Xiao intended to arouse in her sexual desire for him,[3] treated her as “such a lustful woman who offered her sex and lust to any men without feeling ashamed” and anticipated that she would be humiliated and offended.[4]  She alleged that she was shocked, embarrassed, abashed, humiliated, insulted, “sick of it”, distressed, “stressed”, seriously offended and hurt.[5]  After that event Ms Huang did not have any contact with Dr Xiao, other than occasionally seeing him in the school, and had not had a further conversation with him until 2001.[6]

   [2]     Amended particulars pages 1 and 3.

   [3]     Amended particulars page 1.

   [4]     Amended particulars page 1.

   [5]     Amended particulars page 1.

   [6]     Amended particulars page 3.

1999-2000

1. Ms Huang alleged that Dr Xiao showed her further pornographic pictures in 2000 and 2001, seriously humiliating, insulting, offending and hurting her as well as seriously injuring her feelings, self-esteem and damaging her dignity and her reputation.[7]  Relevantly, she alleged that between late session 2 of 1999, early 2000 and early session 1 of 2000, on the computer screen that was close to the exit door of room 119, she saw pornographic pictures accessed by Dr Xiao by which he intended to arouse her sexual desire.  She said that one day she came into this room and after he asked her to close the door, she noticed that on the computer screen he was “enjoying pornographic and erotic pictures with naked bodies from the Internet”. She said that she:

   … felt very sick of it, embarrassed, abashed, humiliated, insulted and offended by Mr Xiao displaying and ‘enjoying’ naked bodies on the computer screen in the office when [she] was there.[8]

   [7]     Amended particulars page 2.

   [8]     Amended particulars page 9.

2001

1. Ms Huang alleged that in August or September 2001, having been provided with a new computer for her PhD studies, she needed Acrobat reader software to read her research documents and she went into room 119 for assistance.  There, she spoke to Professor Daljae Park who was then a new PhD student from Korea.  She alleged that she asked him whether he knew how to install that software but he said that he did not.  She then asked Dr Taiyoung Kim, another new PhD student from Korea, and he said that he did not know how to do it but suggested Dr Xiao saying:

   Fuchun knows how to do it, he is doing computer course.

   Ms Huang alleged that Dr Xiao then said “yes, I can do it” at which point he went into her office to provide that assistance.[9]

   [9]     Amended particulars page 6.

2. In the particulars Ms Huang alleged that:

   … by an accident when Mr Xiao provided me assistance to install Acrobat reader software onto my computer, he sexually harassed me by intentionally showing me about three unwelcome and extremely offensive pornographic and erotic pictures on the computer screen, in which a full body naked lustful man with a full body naked lustful woman were intending and posturing having sex, from which he intended to arouse unwelcome (strong) sexual desire from me for his sexual intention in me. … [10]

   She asserted that Dr Xiao treated her as:

   … such lustful woman who, without feeling ashamed, offered her strong sexual desire for lustful sexual intercourse by a naked lustful man, and he anticipated that [she] would be humiliated and offended.[11]

   [10]   Amended particulars page 5.

   [11]   Amended particulars page 5.

3. Ms Huang said that it was an accident and she could not stop Dr Xiao going to her office to provide help.  She did not think that he would show her pornographic pictures or would be:

   … such shameless that after about 1.8 years he again intended to arouse unwelcome sexual desire from me for his sexual intention in me by showing me pornographic and erotic pictures in about August 2001.[12]

   [12]   Amended particulars pages 6-7.

4. Ms Huang alleged that when Dr Xiao showed her this photograph she asked him not to do so but he intentionally and quickly accessed other pornographic pictures which caused her to feel embarrassed, abashed, humiliated, insulted, “sick of it”, distressed, “stressed”, seriously offended and hurt.[13]

   [13]   Amended particulars page 5.

Ms Huang’s sensitivity

1. Ms Huang asserted that she was a person of high moral standards from an esteemed family background who had been brought up to be dignified, esteemed, polite and obedient.  She said that in her culture naked bodies and pornographic and erotic pictures were prohibited, “abashed, offended and humiliated”.  She said that sex was “an ashamed topic in [her] private life and it offended and humiliated [her] in public”.[14]

   [14]   Amended particulars page 2.

2. Ms Huang alleged that she had been very sensitive and “very vulnerable in sexual harassment” and referred to her one-time treating psychiatrist, Dr Jagdeep Sachdev, who allegedly stated that Ms Huang had an “anxious, sensitive, perfectionist and vulnerable” personality and that she carried feelings of shame and guilt.[15]

   [15]   Amended particulars page 4.

Sequelae

1. Ms Huang alleged that since late 1999:

   I complained the School “air” (sexual environment) was too “pressure” for me which made me headache and my brain heavy, and I often ran away from the office for my concentration on my PhD.  I had felt very ‘stressed’ over my whole body and skins itching, and I had seriously suffered from insomnia.  I had been seriously distracted, I had been unable to concentrate on my PhD, and eventually I totally discontinued my PhD since 3 April 2000.[16]

   [16]   Amended particulars page 9.

2. In the amended particulars Ms Huang alleged that Dr Xiao’s conduct in showing her pornographic pictures in 2001 made her unable to concentrate on her PhD.  She said that the pictures she was shown by Dr Xiao deeply and strongly impressed themselves on her brain and “often automatically appear[ed] in [her] brain”.[17]

   [17]   Amended particulars page 8.

2004

1. Ms Huang alleged that because Dr Xiao sexually harassed her he:

   … cursed at me “Fuch [sic] you! Bitch” on 3 and 30 August 2004.  Because he sexually harassed me, he further threatened with killing me on 30 August 2004.[18]

   She also alleged that Dr Xiao victimised her and verbally abused her in August 2004 because she had complained about his sexual harassment.[19]

   [18]   Amended particulars page 9.

   [19]   Amended particulars page 9.

2. Ms Huang asserted that Dr Xiao’s abusive and threatening conduct in 2004 was the same as or not materially different from the conduct of 1999 and 2001 by which Dr Xiao treated her as “such a lustful woman who, without feeling ashamed” offered sex to men or expressed desire for sexual intercourse with men.[20]  She alleged that UNSW was responsible for Dr Xiao’s abuse of her in 2004 and his threats to kill her.  Further, she said that since about June or September 2001 she had suffered seriously from a very poor mental condition and obsessive compulsive disorder “that was caused by the respondents’ unlawful treatment”.

   [20]   Amended particulars page 10.

Employment relationship

1. Ms Huang alleged that during 1999, 2000 and 2001 Dr Xiao had been employed by UNSW to undertake research and academic support duties.  She alleged that Dr Xiao had been provided with an office in the School of Safety Science building and had been paid for his research and other duties.[21]

   [21]   Further amendment to particulars filed 23 July 2010

2. Ms Huang alleged that from March 1999 to 4 March 2002 she too had been employed by UNSW in the School of Safety Science for research, for tutorial and laboratory duties and for education and research support academic duties.  She alleged that from March 1999 until 4 March 2002 she had been provided with an office in building B11a in connection with her research and employment.

Dr Xiao

1. Dr Xiao did not file a particularised response.  The response he did file on 4 April 2005 simply sought orders that Ms Huang’s application be dismissed and that she pay his costs.

UNSW

1. In its amended response filed on 16 March 2011 UNSW:

   a)admitted that Dr Xiao had been enrolled as a PhD candidate in its School of Safety Science between 4 March 1996 and 29 July 2000;

   b)denied that many of Ms Huang’s allegations in paras.15, 16 and 17 of her particulars were the subject of a “terminated complaint”;

   c)denied that the matters alleged in para.18 of the particulars were the subject of any terminated complaint within the meaning of s.46PO of what is now the Australian Human Rights Commission Act 1986 (“AHRC Act”);

   d)alleged that prior to her letter to HREOC dated 31 October 2002 Ms Huang had made no allegation to it regarding Dr Xiao;

   e)alleged that Ms Huang’s allegations against Dr Xiao in her letter to HREOC of 31 October 2002 were confined to an assertion that:

   … [i]n August or September 2001, when I looked for help from the next door (room 119) to install a software of reading function from the Internet into my computer, one of the students, came to my computer and gave me the help.  However, while he got into the Internet, he showed me sexual pictures in which there was a naked man with woman who intended to have sex.

   f)alleged that at no time prior to its receipt of her letter to HREOC dated 31 October 2002 had Ms Huang informed it of any allegation she made against Dr Xiao;

   g)denied that it had vicarious liability for any of the acts alleged against Dr Xiao;

   h)denied that any contravention by Dr Xiao of the Sex Discrimination Act 1984 (“SDA”) had occurred in connection with his employment with UNSW but that, if any had, all reasonable steps had been taken by it to prevent its employees and agents from doing acts of the kind referred to in s.106(1)(a) or (b) of the SDA;

   i)alleged that Ms Huang had no entitlement to apply to the Court pursuant to s.46PO of the AHRC Act alleging unlawful discrimination in respect of matters which had not been the subject of a complaint terminated in accordance with s.46PO(1)(a) of that Act and in respect of which notice had been given in accordance with s.46PO(1)(b) of that Act;

   j)alleged that any claims for damages for personal injury or breach of statutory duty were time barred; and

   k)alleged that a number of matters alleged by Ms Huang against it had already been determined adversely to her in the proceeding involving Associate Professor Winder and Dr Markovic and that she was estopped from relitigating them.

Relevant law

1. At the time of the events alleged by Ms Huang, s.21 of the SDA, which is found in div.2 of pt.II of the Act, relevantly provided:

   21     Education

   (1)It is unlawful for an educational authority to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy:

   (a)by refusing or failing to accept the person’s application for admission as a student; or

   (b)in the terms or conditions on which it is prepared to admit the person as a student.

   (2)It is unlawful for an educational authority to discriminate against a student on the ground of the student’s sex, marital status, pregnancy or potential pregnancy:

   (a)by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority;

   (b)    by expelling the student; or

   (c)     by subjecting the student to any other detriment.

   …

2. At the time of the events alleged by Ms Huang, ss.28A, 28B and 28F, which are found in div.3 of pt.II of the Act, relevantly provided:

   28A   Meaning of sexual harassment

   (1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

   (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

   (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

   in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

   (2)    In this section:

   conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

   28B Employment, partnerships etc.

   …

   (6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

   (7) In this section:

   …

   workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.

   workplace participant means any of the following:

   (a)    an employer or employee …

   28F Educational institutions

   (1) It is unlawful for a member of the staff of an educational institution to sexually harass:

   (a) a person who is a student at the institution; or

   (b) a person who is seeking to become a student at the institution.

   …

1. At the time Ms Huang alleged that Dr Xiao victimised her, s.94 of the SDA relevantly provided:

   94     Victimisation

   (1)A person shall not commit an act of victimization against another person.

   Penalty:   

   (a)in the case of a natural person—$2,500 or imprisonment for 3 months, or both; or

   (b)    in the case of a body corporate—$10,000.

   (2)For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

   (a)has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

   (b)has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person;

   (c)has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

   (d)has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

   (e)has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

   (f)has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or

   (g)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;

   or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.

   …

2. Section 106 of the SDA provides:

   106   Vicarious liability etc.

   (1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

   (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Divison [sic] 1 or 2 of Part II); or

   (b) an act that is unlawful under Division 3 of Part II;

   this Act applies in relation to that person as if that person had also done the act.

   (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

3. Ms Huang will have made out her allegation that she was sexually harassed by Dr Xiao in contravention of the SDA if she proves that the conduct which she alleges occurred was of a sexual nature and unwelcome, or amounted to an unwelcome sexual advance or request for sexual favours, and that a reasonable person in the circumstances would have anticipated that she would be offended, humiliated or intimidated by that conduct. The test of what a reasonable person would have anticipated is an objective one and turns on a reasonable person’s state of mind, not on Dr Xiao’s state of mind: Leslie v Graham [2002] FCA 32 at [70]; see also CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 at 118 [52], [53].

4. If those allegations are made out, Dr Xiao will be primarily liable for acts of sexual harassment, with UNSW potentially vicariously liable under s.106 of the SDA.

5. For reasons which will become apparent it is not necessary to comment on ss.21 or 94 of the SDA.

6. At the time Ms Huang commenced proceedings, s.46PO of what is now the AHRC Act relevantly provided:

   46PO    Application to court if complaint is terminated

   (1)    If:

   (a)a complaint has been terminated by the President under section 46PE or 46PH; and

   (b)the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

   any person who was an affected person in relation to the complaint may make an application to the Federal Court or the [Federal Circuit Court], alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

   …

   (3)The unlawful discrimination alleged in the application:

   (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

   (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

   (4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit …

7. Given the terms of s.46PO(3), the only unlawful discrimination in respect of which this Court has jurisdiction is that which is at least the same in substance as the unlawful discrimination that was the subject of the terminated complaint or arose out of at least substantially the same acts, omissions or practices that were the subject of the terminated complaint. Further, the respondents to the proceedings in this Court must have been respondents to Ms Huang’s complaint to HREOC. Unless these criteria are satisfied the Court does not have jurisdiction in respect of the particular complaint: Jandruwanda v Regency Park College of TAFE [2003] FCA 1455; Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721.

Complaint to HREOC[22]

[22]   Ms Huang filed a great number of affidavits.  To help keep track of them Ms Huang produced a document in table form listing the documents she had filed.  In the footnotes to these reasons, documents have been identified first by their number in the Court’s file and secondly by the number in Ms Huang’s list, should there be one.

1. By letter dated 3 September 2002 Ms Huang wrote to HREOC making complaints against Associate Professor Winder, Dr Markovic and UNSW.  She also made a complaint against Mr Abayawickrama.[23]  By her letter to HREOC dated 31 October 2002 Ms Huang expanded her complaint to include allegations against Dr Xiao.  She wrote:

   In August or September 2001, when I looked for help from the next door (room 119) to install a software of reading function from the Internet into my computer, one of the students came to my computer and gave me the help.  However, while he got into the Internet, he showed me some sexual pictures in which there was a naked man with woman who intended to have sex.

   The student was called Fuchun Xiao (?).  At that time he was doing a computer course, but before he was a Ph.D. student under the supervision of Professor Jean Cross, who came from China and often brought his daughter in the School.[24]

   [23]   Attachment B to Ms Huang’s Affidavit filed on 21 August 2003 in the original proceeding (2/3).

   [24]   Attachment C to Ms Huang’s Affidavit filed on 21 August 2003 in the original proceeding (2/3).

2. Although the 31 October 2002 letter was fourteen pages long, this was the only express reference to Dr Xiao and to his alleged conduct.  The remainder of the letter was devoted to matters related to Ms Huang’s complaints against Associate Professor Winder and Dr Markovic and to associated matters concerning UNSW.

3. Ms Huang claimed to have written again to HREOC on 29 January 2003 making a further complaint about Dr Xiao, saying:

   During my PhD period (in 1999 when my office was in room 119 or 2001 when I was transferred from room 119 to room 123), one day I came to Mr Fuchun Xiao’s computer in room 119, whom I have mentioned in my complaint dated 31 October 2002 to the Commission, and I asked him how to read Chinese News Paper through Internet.  While he showed me the Chinese News Paper on the computer screen from a website, he showed me pictures in which a naked girl postured very sexy from the section of Today Beautiful Girls in the News Paper.  The computer that he used at that time was close to the door and the first one in the middle row in room 119 and before used by another Chinese student called Bin (?) who was under the supervision of Dr Tony Green.

   Several times probably in 2001, I saw pornographic pictures on the computer screen in room 119.  Once after I came into room 119, I left the door open.  But Mr Fuchun Xiao asked me close the door.  Then I noted that he was enjoying pornographic pictures with naked bodies from Internet.[25]

   [25]   Annexure HH-P23 to Affidavit – in reply 1 (to FX & SF) (131/55).

4. HREOC’s termination of Ms Huang’s complaint made no reference to the events described in her letter of 29 January 2003.  Relevantly, HREOC said in the summary of Ms Huang’s complaint set out in its letter of 28 July 2003 advising the termination of the complaint:

   In her correspondence of 31 October 2002 Ms Huang further alleges that in either August or September 2001 she was sexually harassed by another student, Mr Xiao.  She states that when he came to her desk to assist her to install software onto her computer he accessed the Internet and showed her pictures of a naked man and woman intending to have sex.  I note that this allegation was not raised in Ms Huang’s initial complaint to the Commission.  In accordance with section 46PA of the Act I have decided to grant leave for Ms Huang to amend her complaint to include this allegation.[26]

   [26]   Attachment A to Ms Huang’s Affidavit filed on 21 August 2003 in the original proceeding (2/3).

5. HREOC terminated Ms Hung’s complaint because it had been lodged more than twelve months after the alleged conduct had taken place.

6. On 8 April 2005, Ms Huang wrote to HREOC[27] noting that the complaint made in her letter of 29 January 2003 had not been addressed in the termination decision of 28 July 2003. She also asserted that HREOC had ignored her complaints of victimisation under the SDA, the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975.  She asked that HREOC terminate the aspects of her complaints which it had not already terminated.

   [27]   Annexure HH-HREOC-F-1 to Affidavit – in reply 1 (to FX & SF) (131/55).

7. On 9 May 2005 HREOC replied saying, relevantly:

   With respect to the issues you have raised in relation to Mr Xiao, I consider that the Commission has already dealt with this matter.  On 28 July 2003 I terminated this complaint under section 46PH(1)(b) of the HREOC Act on the ground that [sic] complaint was lodged more than 12 months after the alleged unlawful discrimination took place.  I have attached a copy of this decision and the relevant termination notice.[28]

   [28]   Annexure HH-HREOC-F-5 to Supporting Affidavit  filed 18 March 2008 (7/10).

8. The position is not entirely clear but I am prepared to infer that when HREOC terminated that part of Ms Huang’s complaint which concerned Dr Xiao, it did so in respect of the allegations made in Ms Huang’s letter of 29 January 2003 as well as those made in her letter of 31 October 2002. Consequently, I find I have jurisdiction to consider the matters raised in each of those letters.  

9. However, the events which Ms Huang alleged occurred in 2004 were plainly not amongst the matters raised in those letters.  Therefore, the Court does not have jurisdiction to entertain them.

Evidence

Ms Huang

1999 event

1. Ms Huang deposed:

   In about session 1 of 1999, in the office, room 119 of building B11a, on the computer exclusively located to Dr Victor (Zhong Sheng) Lu who was also a Chinese, he ever showed me how to access to these Chinese Newspapers, and he put a couple of different Chinese Newspapers website addresses on the top of the computer screen.  He never showed me erotic pictures, and never told me there were erotic pictures from Internet.  Since then, I had not accessed these websites for Chinese Newspaper and I forgot about it.

   … In about session 2 of 1999, in the workplace, the office room 119 of building B11a, when I was on duties of the PhD research works and employment by the UNSW and on authorised acts of doing works as the PhD researcher and employee, I wanted to access Chinese Newspapers from Internet … and I asked the second respondent showed me how to access Chinese new paper from Internet, which was only what I expected from him, where I did not want any thing else from him, and who being in the office at that time was in connection with his paid research and employment by the UNSW and in connection with his authorised acts of doing works as the PhD researcher and employee.

   At that time, the second respondent used the computer, which was close to the exit door and which was exclusively located to Dr Billy (Zheng Xiang) for his research works at the UNSW, to show me and I stood on the right side of the computer with a distance.  After the second respondent had accessed to a Chinese Newspaper from a website on the computer screen, he was very rude and opened an unwelcome separate window maned “Today Beautiful Girls” located in the right side of the computer screen, and an unwelcome erotic picture in which a full body naked girl postured very sexily and very lustfully in a very sexually attractive and lustful way of being offering her strong sexual desire to any men came up and was full of the compute screen, from which he intended to arouse unwelcome sexual desire from me for his sexual intention in me, in front of me he ‘enjoyed’ naked woman’s body for her sexual attractiveness and lust, he treated me as such a lustful woman who offered her sex and lust to any men without feeling ashamed and he enjoyed it, and he anticipated that I would be humiliated and offended.  I was shocked, I was so sick of it that I could not say any words to him and just immediately went away from him.  I felt very embarrassed, abashed, humiliated, insulted, sick of it, distressed and ‘stressed’, and it seriously offended and hurt me.  Since then, I had not had any contact with him, except I occasionally saw him in the School, and I had not had any conversation with him until 2001.  I had never called his name, I had not been sure his name, I had not pay attention to the name “Fuchun Xiao” that had been placed on one of the pigeon holes located in building B11a, and I confirmed his name with his former supervisor on 3 August 2002 for the proceeding.[29]

   [29]   Affidavit – Part 4 (40/22), paras.19, 20 and 21.

2. In cross-examination Ms Huang said that in August 1999 she had wanted to access a Chinese newspaper from the internet and had asked Dr Xiao how to do that.  Ms Huang said that Dr Xiao showed her a newspaper on the internet and when it opened there were many windows, one of which said “Today’s Beautiful Girls”.  She said that Dr Xiao then used the curser to point to that window whereupon a naked woman appeared on the computer screen. She said that she said nothing but she quickly ran away.  She could not remember if that window had been in English or Chinese.[30]

   [30]   T492, 25 August 2010.

3. However, in her Affidavit – Part 9 (amended)[31] Ms Huang deposed:

   I was a PhD researcher and had had the hight [sic] capability to search and read a large number of documents for my PhD research, and in about semester 1 of 1999 another Chinese PhD student, Dr Victor Lu, had already showed me how to access to Chinese newspapers websites.  I never needed the second respondent showed me ‘steps’ to read the ‘Chinese news’ or ‘open’ a separate window or section to know what it was inside.[32]

   [31]   Document 47/30.

   [32]   Paragraph 87.

4. Initially in cross-examination Ms Huang said that she did not know whether Dr Xiao had ever downloaded onto her computer a software program to allow her to read Chinese newspapers although she did think that he had downloaded Adobe Acrobat.[33]  Later in cross-examination Ms Huang denied that Dr Xiao had downloaded anything for her in 1999.[34]  Ms Huang said that the only occasion when Dr Xiao did download software for her was in 2001 and that it was then that he helped her, not 1999.  In cross-examination Dr Xiao took Ms Huang to an email she sent him on 23 October 2003 where she said, amongst other things:

   I agree that you did not intend to do any things harmful to me.  We come from non-English background country, China, in which there had not been any laws available at that time.  Sometimes you gave me help to install some software into my computer, and sometimes I gave you clothes to your wife.[35]

   Ms Huang said that she was referring there to him having helped her to download material in 2001.

   [33]   T442 and 444, 25 August 2012.

   [34]   T482, 25 August 2012.

   [35]   Annexure FX 4 to Dr Xiao’s affidavit affirmed on 4 April 2005.

1999, 2000, 2001 events (“intervening events”)

1. As noted earlier, Ms Huang wrote to HREOC on 29 January 2003, stating:

   Several times probably in 2001, I saw pornographic pictures on the computer screen in room 119.  Once after I came into room 119, I left the door open.  But Mr Fuchun Xiao asked me close the door.  Then I noted that he was enjoying pornographic pictures with naked bodies from the Internet.[36]

   [36]   Annexure HH-P23 to Affidavit – in reply 1 (to FX and SF) (131/55).

2. In her Affidavit – in reply 2 (to FX)[37] Ms Huang deposed that that reference to “2001” was a mistake and should have been “between the times of late 1999, early 2000, and early session 1 of 2000, including session 1 of 2000 …”.  She said that Dr Xiao’s accessing of pornography on the internet happened on several occasions, the latest being in early 2000, close to March.[38]  Ms Huang deposed that Dr Xiao displayed erotic pictures of naked bodies between late 1999 and 2000 and that between late 1999, early 2000 and 2000 in her office, room 119, she saw:

   … unwelcome erotic pictures of naked bodies with lusts which intended to arouse sexual desire intentionally displayed by [Dr Xiao] on the computer screen that was close to the exit door, which was exclusively located to Dr Billy (Zheng Xiang) … [39]

   [37]   Document 133/57, para.46.

   [38]   T384-385, 24 August 2010.

   [39]   Affidavit – Part 4 (40/22), para.78.

3. Ms Huang said it was in late 1999 or 2000 that Dr Xiao told her to shut the door to room 119. 

2001 event

1. Ms Huang deposed:

   … in about late August or September 2001, when I had been just provided another computer for my PhD … I needed Acrobat Reader software to read my research documents …  I went to the next office, room 119, for the assistance.  Room 119 was separated by a very low screen or wall boards into two parts of inside and outside, people could see each other when standing, the exit door was located in the outside part, in each part there were two rows of desks, and in each row there were two desks.  When I got into the door of room 119, I turned right, walked through the outside part, and straightly went to Mr Daljae Park, new PhD student who was from Korea, whose desk was located in desk 1 of the last row (row 4) of the inside part of the office. … I asked him whether he knew how to install reading software into my computer, but he shook his head and said words to the effect that he did not know how to do it.  I turned left of my self and faced to Mr Taiyoung Kim, new PhD student who came from Korea, whose desk in 2001 was opposite to Mr Park’s desk, located in desk 1 of row 3 …. At that time Mr Kim was standing in the front of his desk near the right hand side of his desk and the right side of his body was just next to his desk and he faced to me.  I asked Mr Kim for the assistance, he said that he did not know how to do it, turned his face to Mr Xiao who at that time was in the outside part of the office, and suggested me by saying: “Fuchun knows how to do it, he is doing computer course”. At that time, Mr Xiao from the outside part of the office, who at that time might be standing next to row 2 of the desks towards us, which I can not recall through, agreed: “yes, I can do it”.  Then I walked towards the outside part of the office and turned left through the exit door to my office, room 123.  At that time, Mr Xiao followed or went to my office for the assistance, which I can not recall through how he went to my office.[40]

   She said that it “was an accident that [she] could not stop” Dr Xiao going to her office.[41]

   [40]   Affidavit – Part 6 (42/24), para.36.

   [41]   Affidavit – Part 6 (42/24), para.37.

1. Annexed to Ms Huang’s Affidavit (the affidavit of Daljae Park)[42] was an affidavit sworn by Professor Park.  In his affidavit, Professor Park stated:

   In 2001 Mr Taiyoung Kim’s and my offices were in room 119 and Ms Hong Cui Hunag’s [sic] office was in room 123.  One day in about August or September 2001, Ms Hong Cui Huang came into my office, room 119, and asked me to help her to install software with reading function into her computer, but I told her I did not know how to do it.  Ms Hong Cui Huang turned to ask Mr Taiyoung Kim, and Mr Taiyoung Kim said he did not know it and he said that Mr Fuchun Xiao might know it.  Then Ms Hong Cui went to the other side of the office and talked with Mr Fuchun Xiao, and Mr Fuchun Xiao followed Mr Hong Cui Huang to her office to provide her the assistance.

   [42]   Document 118/45.

2. Ms Huang deposed:

   At that time, in my office, whether the second respondent had installed the software into my computer or not, which I can not recall through, but I think he might have finished the assistance.  When he accessed to Internet, he was such rude and intentionally showed me an unwelcome and extremely offensive pornographic and erotic picture, in which a full body naked lustful man with a full body naked lustful woman who were posturing in very sexy and very lustful ways were intending and posturing having lustful sexual intercourse, and in which a penis was posturing having lustful sexual intercourse, I was shocked, I sickly and weakly said to him: “don’t do it” in Mandarin, but he again intentionally quickly accessed into about other two unwelcome and extremely offensive pornographic and erotic pictures, I sickly and angrily said to him: “go away” in Mandarin, and he went out from my office without saying any words.  Since then, I had not had any contact with him and had not had any conversation with him until I accidentally met him in the UNSW library on 10 August 2003.[43]

   [43]   Paragraph 39 of Affidavit – Part 6 (42/24) as amended by Affidavit – part 6 (amended) (224/130).

3. Ms Huang said that Dr Xiao showed her a picture of a naked man and a naked woman “in a position as though they were about to have sexual intercourse”.[44]  She said that Dr Xiao showed her three pictures in quick succession[45] and that although she remembered that the man was standing she could not remember whether the woman was standing or kneeling. Ms Huang said that she could not describe in detail the pictures she had been shown because she had not wanted to see them.  Later she said that in one of the pictures the woman had been “positioning her backside in such a way so that the man could do something to her.  I mean, sexual intercourse”.[46]

   [44]   T390, 24 August 2010.

   [45]   T391-392, 24 August 2010.

   [46]   T394, 24 August 2010.

Effect on her of seeing images

1. Ms Huang deposed that it offended and humiliated her that a man would show her pornography or erotic pictures in public.  It insulted her and made her feel like she was being treated as a prostitute.[47]

   [47]   Affidavit - Part 1 (37/18), para.55.

2. In relation to the 1999 event Ms Huang deposed:

   The erotic picture of a very sexy and lustful naked girl in a very sexually attractive and lustful way of being offering her strong sexual desire to any men which the second respondent showed to me in 1999 has deeply and strongly impressed in my brain, the parts of the girl’s lust (strong sexual desire) and sexy and lustful posture as a prostitute that have more strongly and deeply impressed in my brain often automatically appears in my brain, and I never forget about it, which was aggravated by his further erotic pictures showed in late 1999, 2000, and 2001 and his sexual harassment in 2004.[48]

   [48]   Affidavit – Part 4 (40/22), para. 41.

3. Ms Huang said that although she had faced other significant difficulties in 1998 and 1999, her inability to continue her studies in 2000 was caused by the sexual harassment she had suffered[49] at the hands of Dr Xiao and the others at the School of Safety Science[50] and that this led her to discontinue her studies temporarily in 2000[51] and take sick leave for the remainder of that year.[52]

   [49]   T569, 23 September 2010.

   [50]   Affidavit – Part 4 (40/22), para.91.

   [51]   Affidavit – Part 4 (40/22), para.92.

   [52]   Affidavit – Part 4 (40/22), paras.92, 113 and 114.

4. Ms Huang deposed that “the erotic pictures showed by the second respondent in 2001 have deeply and strongly impressed in my brain, and I never forget about these erotic pictures”.[53]  In relation to all the alleged occasions of sexual harassment of her by Dr Xiao, Ms Huang deposed that:

   The second respondent intentionally showing me such unwelcome erotic picture of a lustful woman posturing very sexily and very lustfully in a very sexually attractive and lustful way of being offering her strong sexual desire to any men in the workplace, together with and aggravated by he further displaying me other unwelcome erotic pictures of naked bodies with lusts in the times between late 1999 and 2000 in the workplace, and together with and further aggravated by he intentionally repeatedly showing me the unwelcome erotic pictures in which a naked lustful woman was offering her strong sexual desire and was having lustful sexual intercourse by a naked lustful man and in which a penis was posturing having lustful sexual intercourse in the workplace in 2001, caused that I have seriously suffered from distress, depression, ‘stress’ over my whole body, itching on skins and other parts, and sleeping disturbance, distracted me from my PhD research, and that it had been very difficult for me in concentrating on my PhD research.[54]

   [53]   Affidavit – Part 6 (42/24), para.55.

   [54]   Affidavit – Part 4 (40/22), para.37.

5. Also on that topic Ms Huang deposed :

   The second respondent intentionally showing me such unwelcome erotic picture in the workplace … has seriously humiliated, insulted, offended and hurt me, as it seems to me and I feel and have seriously suffered that he treats me as such a lustful woman who offered her sex and lust to any men without feeling ashamed and he “enjoyed” it.  It seems to me and I feel and have seriously suffered that he treats me as a prostitute in the workplace the UNSW’s premises.  It seriously damages my dignity and reputation, seriously injures my feeling and self-esteem, and damages my enjoyment of my life.[55]

[55]   Affidavit – Part 4 (40/22), para.34.

Inability to complain about sexual harassment

Dr Harvey

1. Dr Harvey was a general practitioner whom Ms Huang first consulted in 1998 following a car accident.[56]  Ms Huang also consulted Dr Harvey in 1999[57] in connection with a painful hip.  On 3 August 1999 she had had an accident at a gym which resulted in a personal injury claim.

   [56]   T89, 27 July 2010.

   [57]   Affidavit (Dr Harvey’s affidavit) (127/37).

2. Dr Harvey was not sure but he did not think that when he saw Ms Huang in 2001 she ever mentioned sexual harassment at UNSW, although he remembered her doing so after 2002.  Annexed to Dr Harvey’s affidavit sworn on 29 November 2005 were several medical certificates ranging in date from 2001 to 2004.  Although they had a common theme, referring to anxiety, depression and stress suffered by Ms Huang and some made reference to her obsessive compulsive disorder, they contained few statements touching on the sexual harassment alleged to have been suffered by Ms Huang and none which referred to Dr Xiao. 

3. On 9 December 2000 Ms Huang wrote to Dr Harvey[58] saying that the accident in the gym had caused her so much mental pressure that her brain was blocked, that she could not concentrate on her research, that she could not complete her publications, that she had failed to gain a scholarship, that she almost died from the suffering and depression and that she could not resume her research because her mental situation was not good enough.  In her evidence, however, Ms Huang said that that letter had not been wholly true.  She said that although she mentioned her mental condition in her letter to Dr Harvey, she had omitted the sexual harassment part of it because it was too embarrassing to discuss with him and anyway she did not see any point in telling him about it.  She said she had just wanted to tell Dr Harvey that she had lost her scholarship.[59] 

Telling Ms Frank

[58]   Exhibit R1.6.

[59]   T244-246, 29 July 2010.

1. Ms Huang took her concerns about UNSW’s treatment of her to its Equity and Diversity Unit, where she was assisted by Ms Sybille Frank.  Ms Huang said that in her discussions with Ms Frank she complained that her PhD had been cancelled unfairly by her supervisor, Dr Markovic, and the head of school, Associate Professor Winder, who had both sexually harassed her.[60]  Her dealings with Ms Frank were concerned with her complaint that they had unfairly terminated her PhD.[61] 

   [60]   T412, 24 August 2010.

   [61]   See Ms Huang’s Affidavit – in reply to Ms Sybille Frank’s affidavit filed on 19 July 2009 – 3 (220/113).

2. Ms Huang deposed that she had complained to Ms Frank about sexual harassment on the part of Associate Professor Winder, Dr Markovic and Mr Abayawickrama as early as their meeting on 25 March 2002.[62]  She said, however, that she did not discuss with Ms Frank things which were not relevant.  Ms Huang said that she did not mention to Ms Frank the sexual harassment by Dr Xiao because he had taken no part in the cancellation of her PhD.  She complained about her supervisor and the head of the school because they had.[63]  She said she briefly told Ms Frank about her personal difficulties but Ms Frank had not asked her any questions about them and as her mental condition had been very poor, she was very reactive and passive and would only answer questions asked of her.[64]

   [62]   Affidavit – in reply to Ms Sybille Frank’s affidavit filed on 19 July 2009 – 3 (220/113), para.2(3).

   [63]   T413-414, 24 August 2010.

   [64]   T410, 24 August 2010.

3. Annexed to Ms Huang’s Affidavit – in reply 33E[65] was a “Summary of the Equity and Diversity Unit involvement in Ms Hong Huang’s allegations of sexual harassment and discrimination”.  It recorded a meeting which took place on 2 April 2002 at which Ms Huang made allegations against Dr Markovic and referred to “another incident in which a student had allegedly showed an offensive email to her and others, and had waited for her at night”.  The remainder of the note makes it clear that Ms Huang was talking about Mr Abayawickrama.[66]

   [65]   Document 190/97A.

   [66]   Annexure HH-P5 to Affidavit – in reply 33E (190/97A).

4. Annexed to Ms Huang’s Affidavit in Reply – 34[67] was her “Report on my Ph.D. Research” dated 7 June 2002 which, it can be accepted, was also submitted to UNSW on 7 June 2002.[68]  In that “Report” Ms Huang stated that Mr Abayawickrama had several times showed her “a picture of a man’s head with a man’s sexual organ and asked me that if I liked it”.  She also said:

   [i]n two or three evenings when I was doing my literature review very late near 11pm or the midnight, Chamindann [sic] waited for me in the room and intended me to take him to home.  Sometimes he implied that he wanted sex when he talked with me, for example, he said to me that it was very hard for him as his wife was not in Australia. 

   That document also spoke of a student Zaman but made no mention of Dr Xiao.[69]

   [67]   Document 191/98.

   [68]   see Ms Huang’s Affidavit – in reply to Ms Sybille Frank’s affidavit filed on 19 July 2009 – 3 (220/113).

   [69]   At para.1.3.1.2.

Delay in reporting to HREOC

1. Ms Huang’s initial complaint to HREOC was dated 11 July 2002 and, according to HREOC’s reply of 14 August 2002, was received on 12 July 2002.  Attached to that complaint was Ms Huang’s 7 June 2002 “Report on my Ph.D. Research”.[70]

   [70]   Affidavit – in reply 1 (to FX & SF) (131/55), paras.116, 117.

2. Ms Huang deposed that she had been “unable to raise” the alleged sexual harassment by Dr Xiao in 2001 until she read in HREOC’s letters of 15 October 2002 to Associate Professor Winder, Dr Markovic and Mr Abayawickrama the request “Please advise whether UNSW provided you with training in or information on awareness of sexual harassment laws and equal opportunity policies”,[71] “from which [she] realised”. [72]  She then proceeded to raise the 2001 event in her letter to HREOC of 31 October 2002.[73]  Ms Huang subsequently read UNSW’s reply to HREOC of 19 November 2002, that she “had also not witnessed any inappropriate or offensive materials in the laboratory”, following which she “recalled”, and made her complaint that in “1999 and 2000 the second respondent showed [her] other erotic pictures”.[74]  She “raised that” with HREOC in her letter of 29 January 2003.[75]  Ms Huang also appeared to depose that in her initial letter to HREOC she did not complain about the events of 1999 because she had been preoccupied with the event of August/September 2001.[76]

   [71]   See annexure HH-HREOC-S-7 to Affidavit – in reply 1 (to FX & SF) – supplementary (205/56).

   [72]   Affidavit – Part 8 (44/27), para.151.

   [73]   Affidavit – Part 8 (44/27), para.151.

   [74]   Affidavit – Part 8 (44/27), para.152.

   [75]   Affidavit – Part 8 (44/27), para.152.

   [76]   Affidavit – in reply 1 (to FX & SF) (131/55), para.4.

Ms Huang did not know Dr Xiao’s name

1. Ms Huang said that she and Dr Xiao had been the principal users of room 119.[77]  She deposed that although they had shared the office from March 1999 to April 2000,[78] until 3 August 2003 she had not been sure that the person who showed her erotic pictures in 1999, 2000 and 2001 was called Fuchun Xiao.[79]  She had never called Dr Xiao by his name or, on one version of events, had not even been sure of his name until she confirmed it with his former supervisor on 9 August 2003.[80]  In another version of events Ms Huang deposed that she had had to contact the Korean former students Messrs Kim and Park to confirm this information.[81] 

   [77]   T386, 24 August 2010.

   [78]   Affidavit – Part 6 (42/24), para.37.

   [79]   Affidavit – Part 9 (amended) (47/30), para.5.

   [80]   Affidavit – Part 4 (40/22), para.18.

   [81]   Affidavit – Part 9 (amended) (47/30), para.6.

2. Ms Huang deposed that during the period 1999 to 2003 the names of the staff members and research students who worked in building B11a, including Dr Xiao’s, were placed on pigeonholes located in the common room of that building which anyone in the building could see and note.[82]  She agreed that amongst the names on the pigeonholes were those of three Chinese students. Two of them were Victor Liu and Xheng Xhang, also known as Billy.[83]Ms Huang said that she might have seen but had not paid attention to the name “Fuchun Xiao” on one of the pigeonholes.[84] 

   [82]   Affidavit – in reply to the second respondent’s affidavit filed on 4 September 2009 (208/110), para.68(2).

   [83]   T503-504, 25 August 2010.

   [84]   Affidavit – in reply to the second respondent’s affidavit filed on 4 September 2009 (208/110), para.68(10).

3. I queried Ms Huang about this:

   HIS HONOUR:      Can you explain to me then how - if [you] saw Dr Xiao every week in 1999, from time to time in 2000, and occasionally in 2001, and there were three Chinese students with pigeon holes, and you knew the names of two of those Chinese students, and the acts of sexual harassment were so confronting to you that you did not know Dr Xiao’s name until 2003?

   INTERPRETER:     It’s not that I did not know ..... I was just not sure. I knew the other two names whereas - I knew the other two names, so for the other name I knew ..... it’s got to be him.

   HIS HONOUR:      Well, yes, but the difficulty that I’ve got, Ms Huang, is that if these events were as unpleasant for you as you allege, how – you know, it just strikes me as against human nature that you wouldn’t have found out the name of the person who did this to you, or would not have known the name of the person who did this to you, if you continued to see him for another two years?

   INTERPRETER:     In my culture, if I don’t like this person I don’t want to know him.[85]

   [85]   T505-506, 25 August 2010.

4. Ms Huang’s oral evidence was to the effect that even in 2001, if Dr Kim had simply said “go down the hall and speak to Fuchun”, and had not directed his comment to Dr Xiao who was present in the room at the time, she would not have known to whom Dr Kim was referring.  In the 2001 conversation with the Korean PhD students, she only knew that Dr Kim was referring to Dr Xiao as a person who could help her with her computer problems because they were together in the room and Dr Kim was looking at Dr Xiao when he was talking.[86]

   [86]   T506-507, 25 August 2010.

Clothes

1. As noted earlier, Dr Xiao put to Ms Huang the following passage from her email to him of 23 October 2003:

   Sometimes you gave me help to install some software into my computer, and sometimes I gave you clothes to your wife.

   Ms Huang said that if the passage was read as it was, it would be misinterpreted. She said that the email did not represent the true sequence of events[87] as her style of writing was to reverse the sequence.[88]  She also deposed that she had mentioned the used clothes to point out that although Dr Xiao had shown her erotic pictures she did not have any other issues or conflicts with him.[89]

   [87]   T486, 25 August 2010.

   [88]   T489, 25 August 2010.

   [89]   Affidavit – Part 9 (amended) (47/30), paras.26, 27.

2. Ms Huang further deposed that, in any case, the clothes were not a gift to Dr Xiao to thank him for assistance he had given her[90] but, rather:

   In about session 1 of 1999, I took some used clothes and a quite good pairs of sports shoes that some one gave to me but I did not want and I wanted to put into charity bin or gave some one who needed in the school.  While another Chinese boy, who I think might be Mr Victor (Zhong Sheng) Lu, had the pairs of shoes, the second respondent took the clothes for his wife, where I ever saw his little daughter only had rice without any meat and vegetable for her lunch in the common room of the building.  I can not recall the details how he got the clothes from me.[91]

   [90]   Affidavit – Part 9 (amended) (47/30), para.29.

   [91]   Affidavit – Part 4 (40/22), para.16.

3. Ms Huang said that she had taken those items to UNSW for anybody who wanted them, including Dr Xiao.[92]  Moreover, she said, Dr Xiao came into possession of those items very early, before he showed her the pictures.[93]

   [92]   T560, 23 September 2010.

   [93]   T561, 23 September 2010.

Ms Huang’s employment at UNSW

1. Ms Huang deposed that she performed her PhD research under an agreement with UNSW whereby she was provided with an office, keys and security codes for building B11a as well as with funding, financial support to attend conferences, a computer, a printer, a copier, a fax machine, a pigeonhole, stationery and other materials necessary for her research work.[94]  Annexed to Ms Huang’s Affidavit – Part 3 (Liabilities)[95] were copies of pay slips reflecting scholarship payments and her periods of casual employment with UNSW, Ms Huang noting that they were described as “UNSW Employee Payment Advice”.[96]  Ms Huang deposed that her scholarship payments were made because her PhD research had been for the benefit of UNSW,[97] Dr Markovic requiring her to conduct her research and attend building B11a to spend as many hours as she could on it.[98]

   [94]   Affidavit – Part 3 (Liabilities) (39/21), paras.16-18, 21.

   [95]   Document 39/21.

   [96]   Affidavit – Part 3 (Liabilities) (39/21), paras.26-27.

   [97]   Affidavit – Part 3 (Liabilities) (39/21), paras.31-32.

   [98]   Affidavit – Part 3 (Liabilities) (39/21), paras.35-36.

2. Ms Huang annexed to her Affidavit – in reply 2 (to FX)[99] a certificate evidencing that “while employed at the School of Safety Science”, she had been successfully trained in the “Hazardous Substances Regulations”.

   [99]   Document 133/57.

3. She said that Dr Xiao was also working for UNSW at the time he showed her pornographic images.

Dr Sachdev

1. Dr Sachdev commenced as Ms Huang’s treating psychiatrist on 18 February 2003, sometime after Ms Huang made her complaint to HREOC.  Exhibit A1 is a referral letter from a Dr Lee to Dr Sachdev dated 29 January 2003.  In it, Dr Lee stated:

   Hong is from China and was doing a PhD in environmental toxicology, when she was subjected to verbal sexual harassment by her supervisor and another student.

   Hong made a complaint to the University, but her supervisor “kicked her out” of her studies as a result, and also stole her research, presenting it as his own at a conference.

1. Annexed to Ms Huang’s untitled affidavit sworn/affirmed on 16 April 2008[100] was a copy of Dr Sachdev’s affidavit, sworn on 29 November 2005, which annexed a copy of her report dated 14 June 2005. In the history contained in that report, Dr Sachdev reported that Ms Huang had referred to the sexual harassment by Associate Professor Winder and Dr Markovic allegedly commencing in semester 2 of 1999. The history also recorded:

   In 2001 Dr Makovic [sic] told one of the students in a group (of which she was a part) that even though Hong had not been married she needed sex.  On the following day one of the male students in the lab showed her a picture of a penis on the computer which he then moved up and down simulating a sexual act and asked her if she liked what she saw.  The next day he proceeded to do the same, again in the presence of the supervisor, and all the students in the lab laughed.  According to her, naked pictures of men and women having sex were shown to her on three occasions despite the fact that she objected to it.  In particular, she remembers another PhD student by the name of Xiao displaying pictures depicting nudity and sex on his computer for her to see.  A student from Sri Lanka working in the same lab at that time also made sexual suggestions.  At that time she felt very embarrassed, did not know what to do but became very distressed and suffered from insomnia …

   She believes this happened after she complained to the UNSW counselling service and Vice Chancellor of Research about being discriminated against.

   [100] Document 15/34.

2. The conclusion expressed by Dr Sachdev in that report was that:

   Harassment suffered by Ms Huang at the hands of some of the university staff has resulted in marked increase in anxiety and depressive symptoms.

3. Dr Sachdev also stated that her case notes recorded that during the course of the treatment she provided to Ms Huang the latter was crying and talked about sexual harassment she had allegedly suffered from Dr Xiao and the head of the school.[101]

   [101] T109, 27 July 2010.

4. In her report of 14 June 2005 Dr Sachdev recorded that Ms Huang only completed one year of her PhD course before she took time off because of sickness and a number of personal problems, including her mother’s illness, financial difficulties, problems with her hip and lower back pain.[102]  Dr Sachdev also stated that, based on the history given by Ms Huang, when she came back after this period of illness in 2001, the discrimination in relation to her PhD studies started as did the sexual harassment (presumably by Dr Xiao and Mr Abayawickrama).  Dr Sachdev said that this conduct had started after Ms Huang complained to the UNSW counselling service.[103]

   [102] T111-112, 27 July 2010.

   [103] T112-113, 27 July 2010.

5. Dr Sachdev said that the first time she saw Ms Huang she had no doubt that “this” was a very recent event, that Ms Huang was upset by the events that had happened or taken place at UNSW and that she was quite depressed.[104]

   [104] T115, 27 July 2010.

6. Dr Sachdev said that she thought Ms Huang suffered from a persecutory type of delusional disorder.  She said that the commencement of a delusional disorder was very insidious, starting with an event, usually based on reality, but was then the subject of a developing obsession. She was of the view that this was what had happened in Ms Huang’s case. She had no doubt that when Ms Huang first presented she was quite depressed and quite traumatised by what had happened but that this had become very chronic, resulting in a total obsession with it.[105]

   [105] T115-116, 27 July 2010.

7. Dr Sachdev felt that there was some reality to Ms Huang’s complaints but that Ms Huang had read too much into it and had had difficulty “letting it go”. Dr Sachdev said that it appeared to her that from what Ms Huang had told her that it was “a bit of a boys’ club in the lab”[106] and she had no reason to believe that Ms Huang was not telling the truth. However, the intensity with which Ms Huang believed that she had been the victim of sexual harassment, with a kind of over-valued ideation, her obsession with it and the taking of it in isolation suggested to Dr Sachdev that Ms Huang’s complaints had a delusional quality. Dr Sachdev thought that Ms Huang’s reading of the issue was probably excessive.[107]

   [106] T120, 27 July 2010.

   [107] T120, 27 July 2010.

8. Dr Sachdev thought that it was hard to conclude, in light of the fact that Ms Huang had made similar allegations against four people, that she had a fixed false belief in multiple areas with multiple people but no other abnormality, because that did not fit with any known disorder.  Dr Sachdev felt that Ms Huang was probably “a bit ‘over the top’” but that perhaps a “little bit of something” had happened.[108]  The other alternative was that the events were completely delusional but Dr Sachdev found such a conclusion hard to justify given the history. She thought that it all fitted together and that something had happened.

   [108] T121, 27 July 2010.

Ms Huang’s mother, sister and friend

1. Affidavit and oral evidence was adduced from Ms Huang’s mother and sister and from a friend, Ms Yi Wang, but none was relevant to the separate question.

Fuchun Xiao

1. Dr Xiao deposed that in early 1999 he had almost finished writing his draft PhD thesis when Ms Huang asked him to show her how to read Chinese news online.  He used his own computer to do this and she stood behind him as he showed her what to do.  In particular, special software (“NJstar”) was required to view Chinese characters. Dr Xiao deposed that he might have shown Ms Huang the websites or quickly moving from window to window after showing her a piece of news or a section of the site.  He deposed that after doing this she seemed to understand how to use the software and so he and she went to her computer in a different part of the office which they and other research students occupied, found the NJstar website and downloaded the software onto her computer.[109]  Dr Xiao deposed that although he could not recall what section and what news he showed Ms Huang, he did not show her pornographic pictures and had not intended to sexually harass her.[110]  Dr Xiao deposed that after this Ms Huang gave him some used clothes which he did not want but which he nevertheless accepted.

   [109] Affidavit 4 April 2005 (29), para.1.

   [110] Affidavit 4 April 2005 (29), para.2.

2. Dr Xiao deposed that he submitted his thesis in March 2000 and was awarded his degree in the first half of 2001.[111]  He deposed that from March 2001 he was a full-time student studying an information science degree in UNSW’s School of Computer Science and Engineering.  Throughout 2001 he had also worked part-time (four hours per day) or full-time (seven hours per day) in UNSW’s library.  Dr Xiao said that although he was not studying safety science[112] and he did not have an office or a desk at the School of Safety Science[113] he did visit the school from time to time in 2001.[114]

   [111] Affidavit 4 April 2005 (29), para.4.

   [112] T132-133, 1 December 2011.

   [113] T135, 1 December 2011

   [114] Affidavit 1 September 2009 (56), para.20.

3. Dr Xiao denied Ms Huang’s allegations that he sexually harassed her in 1999 and 2001 or that he had intended to sexually harass her in 1999, 2000 or 2001.[115]  In particular, Dr Xiao could not recall, and denied, helping Ms Huang download software in August or September 2001, that he assisted her to download any software other than NJstar[116] or that he showed her any pornographic pictures.[117]

   [115] Affidavit 1 September 2009 (56), para.13.

   [116] Affidavit 1 September 2009 (56), para.26.

   [117] Affidavit 1 September 2009 (56),para.14.

4. In response to Ms Huang’s questions Dr Xiao agreed that he had looked at a Chinese newspaper website which had photographs of women who could be rated according to attractiveness but said that those women were clothed and not naked.[118]  Dr Xiao also agreed that he had asked Ms Huang to shut the door to room 119 but said that this had not been related to pornographic pictures.[119]

   [118] T77-78, 30 November 2011.

   [119] T85, 30 November 2011.

5. Dr Xiao deposed that before 10 August 2003 he knew nothing about Ms Huang’s situation or her case against UNSW, Associate Professor Winder, Dr Markovic and other students.  On that day he encountered her in UNSW’s library and read that part of the claim she was preparing to file in this Court which was relevant to him.  According to Dr Xiao, Ms Huang said to him:

   …you admit it, and nothing will happen to you, that is it.

   He deposed that he thought that that was ridiculous and would not agree or give her his address or telephone number.[120]

   [120] Affidavit 4 April 2005 (29), para.5.

6. Annexure FX4 to Dr Xiao’s affidavit affirmed on 4 April 2005 was an email exchange between Dr Xiao and Ms Huang.  In response to an email from Ms Huang, Dr Xiao wrote on 22 October 2003 saying:

   I do not know what happened to you, to your study actually.  Last time I accidentally met you in the library of the university of New South wales. You showed me a letter and talked your case a bit to me.

   I recalled I used to help you download a software something like Njstar, to view Chinese scripts, maybe I showed you a website of Chinese Newspaper in Australia – Australia daily.  This is a normal and good website to read Chinese news.  There is a column to view a very ordinary picture of some females to give scores just for fun.

   I did not know what happened to your study, when you left the university, but I do think I have nothing to do with your study and case.  I did not do anything harmful to you, did not ask you to do anything bad.  We were in the same office for some time, we both are Chinese, we were just normal colleagues, I do not know you much.  You are an adult, you can manage what you do.

   It is very ridiculous for me to get involved in your case.  What can I do for you?  What should I do for you?

   Good luck![121]

   Also in that exchange was the email to him from Ms Huang dated 23 October 2003 quoted earlier.  Relevantly it said:

   I agree that you did not intend to do any things harmful to me. We come from non-English background country, China, in which there had not been any laws available at that time.  Sometimes you gave me help to install some software into my computer, and sometimes I gave you clothes to your wife.

   I understand you might be unknowing for your acts.  In August or September 2001 you showed me sexual pictures in which there was naked man with naked woman who intended to have sex when you helped me to install software of reading function from Internet into my computer in room 123 in the School of Safety Science of UNSW.  In 1999, you also showed me another picture which was a naked girl postured very sexy from the section of Today Beautiful Girls in the News Paper.  Several times probably in 2001, I saw pornographic pictures on the computer screen which you were using in room 119.  Details of your unlawful acts can be seen from the attached document.

   The problem is that the University of New South Wales did not provide you with training of information on awareness of sexual harassment laws and equal employment opportunity policies, and the University of New South Wales has the liabilities for what you had done to me.

   At about 3pm of 10 August 2003, when I met you in the UNSW library, I showed you the letters relating my complaint.  When I talked about the pornographic pictures that you showed to me at those times, you said the acts happed [sic] in too long ago.  While I asked you for your contact details such as phone number and post address, you just quickly went away from me.

   [121] That email was also reproduced in Annexure FX3 to Dr Xiao’s affidavit of 4 April 2005.

7. Dr Xiao replied in an email dated 25 October 2003,[122] saying that he had shown Ms Huang the website of a Chinese newspaper in Australia, the Australia Daily, but that:

   This is a normal and good website to read Chinese news. There is a column to view a very ordinary picture of some females to give scores just for fun.  The website is: I sometimes came there to read some Chinese news when I was free or felt tired.

   [122] Annexure FX5 to his affidavit affirmed 4 April 2005.

8. Dr Xiao also tendered an email he received from Ms Huang dated 11 November 2003[123] which, amongst other things, referred to the fact that “one day in August or September of 2001” she had gone to his office in room 119 and unsuccessfully sought help installing software with “reading function from internet” from the Korean students there, following which he provided her assistance in her office, room 123.  The email continued:

   After you had installed the software into my computer, you got into a picture in which there was a naked man and a naked woman who were intending to have sex.  I was shocked and upset and said: “don’t do it”.  But you still sat on my chair and continued to quickly get into similar pornographic pictures in order to show them to me.  Then I told you leaving.

   In 1999, you also showed me a picture in which there was a naked young Asian girl who postured very sexy, after you showed me how to read Chinese News Paper from internet.

   You helped me twice for installing softwre and getting in Chinese News Paper from internet.  Every times when you helped me in computer, you always showed me pornorgraphic pictures after you had finished what I wanted.

   Several times probably in 2001 when I came to room 119, you used Bill’s computer, who was a Chinese PhD student under Dr Tony Green’s supervision which was arranged near the door of room 119, you had been searching and enjoying pornographic pictures.  Once when I come to the room and left the door open but you asked me to close the door, then I found you was enjoring pornographic pictures.  Not only me saw your such acts.

   [123] Exhibit R2.1.

9. A copy of that email was also annexed to Ms Huang’s Affidavit (Daljae Park’s evidences and affidavit) – amended.[124]

   [124] Document 48/47.

Sybille Frank

1. At the relevant times, Ms Frank was the equity officer at the Student Equity and Diversity Unit of UNSW.  She affirmed an affidavit in this proceeding on 11 September 2009 and annexed to it two earlier affidavits, one affirmed on 6 February 2006 and the other on 10 January 2005. [125]

   [125] Document 60.

2. In her affidavit affirmed on 11 September 2009 Ms Frank deposed that while she was employed at UNSW as the equity officer, the Student Equity and Diversity Unit widely advertised and promoted to students and staff their rights and responsibilities under the SDA. For instance, Ms Frank said that at the beginning of each year UNSW put information in new students’ kits and the postgraduate student association gave out information about university policies, including information on sexual harassment.[126]  She also deposed that, to the best of her recollection, while she was employed as the equity officer at UNSW, Ms Huang did not make a complaint about Dr Xiao or anyone answering his description although she did make complaints of sexual harassment against others, including a fellow student.

   [126] T39-40, 9 December 2011.

3. In her affidavit affirmed on 10 January 2005 Ms Frank deposed that she had had a number of detailed meetings and on-going dealings with Ms Huang and her student representative advocate in an attempt to assist Ms Huang regarding her concerns about her enrolment status and her complaint of alleged unlawful discrimination and sexual harassment.  Ms Frank said that during their meetings Ms Huang had never mentioned Dr Xiao.[127]

   [127] T52, 9 December 2011.

4. Ms Frank deposed in her affidavit affirmed on 6 February 2006 that in her first meeting with Ms Huang on 25 March 2002 Ms Huang discussed her reasons for applying for leave in session 1 of 2000.  Ms Frank deposed that her notes of that meeting recorded that the reasons Ms Huang gave for applying for leave were:

   accident – injured back – nervous – court case – mother/immigration – 2000 applied for leave S1.

   Ms Frank deposed that Ms Huang did not mention to her that alleged discrimination or sexual harassment was a cause for seeking leave in session 1 of 2000.[128]

   [128] Affidavit 6 February 2006, para.4.

5. Ms Frank deposed that in a further meeting with Ms Huang on 2 April 2002 she spent a considerable amount of time attempting to assist Ms Huang clarify her allegations and what she wanted to achieve.  She deposed that Ms Huang indicated to her that her aim was to remain enrolled in the PhD program and that if she could do so she did not want to raise the discrimination and harassment issues.[129]  Ms Frank further deposed that Ms Huang was not clear about whether she wanted to pursue a complaint of sexual harassment.[130]

   [129] Affidavit 6 February 2006, para.5.1(iii).

   [130] Affidavit 6 February 2006, para.5.1(v) .

6. Ms Huang lodged a formal complaint with the UNSW Registrar on 7 June 2002 but, Ms Frank deposed, at no stage did she raise with UNSW any allegations against Dr Xiao.[131]  After Ms Huang lodged her complaint, the Registrar’s office asked Ms Frank to undertake an investigation into Ms Huang’s allegations of sexual harassment.[132]  Between 26 June 2002 and 3 September 2002 Ms Frank conducted an investigation into Ms Huang’s allegations of unlawful discrimination and harassment.  In that process Ms Frank interviewed Mr Abayawickrama (described by Ms Frank as “a student identified by Ms Huang as a possible witness and against whom she had made a complaint”), Mr Uzzaman (a student identified by Ms Huang as a possible witness), Ms Fatima Lestari (a PhD student in the school), Associate Professor Winder and Dr Markovic.  A copy of Ms Frank’s report to the Registrar dated 3 September 2002 was annexed to her affidavit.[133]

   [131] Affidavit 6 February 2006, para.4.

   [132] Affidavit 6 February 2006, para.20.

   [133] Affidavit 6 February 2006, paras.25, 26.

David Michael Ward

1. Mr Ward was UNSW’s Director of Human Resources.  He deposed that it was normal for UNSW’s PhD students to undertake casual work at the university although that work would be distinct from the work they undertook as part of their doctoral studies. [134]

   [134] Affidavit – Document 294.

2. Mr Ward deposed that Dr Xiao had been employed at UNSW in casual clerical or administrative jobs, none of which was performed in the School of Safety Science.  Specifically, Dr Xiao had been employed in the university library, the Physical Sciences library and the Built Environment Faculty, all of which were located in buildings separate from the building in which the School of Safety Science was located.  Mr Ward also deposed that Dr Xiao had never been engaged by UNSW as an employee in the School of Safety Science and that the School of Safety Science had always been located in a building different from the one which housed the School of Computer Science.

3. Mr Ward deposed that Ms Huang had been employed as a casual academic in the School of Safety Science from 6 August 1999 to 1 January 2002 and that she had also been employed as a short-term employee in the Faculty of Science and Technology for work on or about 18 May 2001.

4. Mr Ward gave evidence that, as a matter of convenience, UNSW used its payroll system to pay scholarships to its students.  He deposed that Dr Xiao received scholarship payments from 1996 to 1999 and that Ms Huang was paid a postgraduate scholarship from 19 February 1999 to 2 December 1999.

5. Mr Ward said that UNSW employees were always paid by salary rather than in kind.[135]  Although he said that he was not aware of the specific arrangements in the School of Safety Science, Mr Ward said that it seemed to him that the school, like other schools in the university, provided its postgraduate students with resources such as telephones, computer facilities, furniture, photocopying facilities and accommodation to assist them with their degrees.[136]  He said that it was also quite common for UNSW to pay for students to attend conferences, including expenses related to their accommodation and food.[137]  Mr Ward said that those provisions by UNSW to its postgraduate students were a means of providing support and not payments for conducting postgraduate studies.[138]  He said that PhD students did not receive remuneration in the form of a salary, superannuation or leave for undertaking their degree course.[139]

   [135] T31, 1 December 2011.

   [136] T33, 1 December 2011.

   [137] T32, 1 December 2011.

   [138] T37-38, 1 December 2011.

   [139] T50, 1 December 2011.

Brian Malcolm Vassie

1. Mr Vassie was the manager of Human Resources Business Systems at UNSW.

2. Mr Vassie deposed that UNSW had two sets of employee payroll records for Ms Huang under different identity numbers.[140]  One set of records related to her employment as a casual academic in the School of Safety Science with one employee identity number recording twelve payments between August 1999 and 27 April 2000 and another relating to a casual position for a specific project in respect of which she received one single payment of $132.84 on 13 September 2001.  The other payroll system records referred to by Mr Vassie related to scholarship payments made to Ms Huang.

   [140] Affidavit – Document 293.

3. Mr Vassie deposed that UNSW made all of its scholarship payments through its payroll system and that those payments could be identified as such by codes allocated to them.  Mr Vassie deposed that UNSW’s payroll system was set up so that students were not recorded as employees unless they performed some work for UNSW and that payment for such work would be separate from any scholarship payments to which that student might be entitled.

4. Ms Huang showed Mr Vassie two reimbursement forms and[141] he agreed that on the basis of those forms, UNSW had reimbursed Ms Huang for certain expenses.[142]  He stated that those reimbursements had been paid through the accounts payable system[143] and could have only been made to someone who had been awarded a scholarship.[144]

   [141] Exhibit A18.

   [142] T15, 8 December 2011.

   [143] T17, 8 December 2011.

   [144] T46, 8 December 2011.

Other evidence

1. Exhibit R2.2 was an affidavit sworn by Ms Huang on 12 October 2005 and filed in the Federal Court in the appeal proceeding before Rares J.  In that affidavit Ms Huang deposed that in August 2001, after Professor Park and Dr Kim had been unable to assist her, Dr Xiao had followed her to her office, ostensibly to install Adobe Acrobat reader software on her computer.

Consideration

1999 event

1. Ms Huang’s account of the events of 1999 was confused.  On one hand she deposed that she asked Dr Xiao how to access Chinese newspapers on the internet, despite having already been shown by Dr Lu how to do this.  On the other hand, she deposed that she had had no need to seek Dr Xiao’s assistance because Dr Lu had already shown her how to read Chinese newspapers on the internet, which implies that she had not invited Dr Xiao to assist her at all and leaves unexplained why they were together at a computer screen.  The first of those versions is what Ms Huang said in her letter to HREOC of 29 January 2003, in the detailed account set out in her Affidavit – Part 4[145] and in part of her evidence in cross-examination.  Additionally, Dr Xiao did not dispute having shown Ms Huang, probably in 1999, how to use NJstar to read Chinese characters on a computer and acknowledged that the Australian Chinese language newspaper he accessed did have a section where pictured women could be rated on their attractiveness. 

   [145] Document 40/22.

2. In light of this evidence, I reject Ms Huang’s assertion that she had had no need for Dr Xiao’s assistance in 1999 and conclude that in 1999 Dr Xiao showed her how to access Chinese newspapers on the internet. 

3. Ms Huang’s retreat from a significant element of her initial account of the event which, if accepted, would have minimised the significance of any gift by her of clothes to Dr Xiao, diminishes confidence in her account more generally.  Further in this regard it was not clear on Ms Huang’s evidence whether the page “Today Beautiful Girls” was in English or in Chinese, which was significant as Dr Xiao was alleged to have shown Ms Huang a Chinese language website.

4. Lacking any evidence directly corroborating the alleged display of images, Ms Huang referred to part of the transcript of the hearing before Driver FM on 6 April 2005 where the following exchange between her and Dr Xiao occurred:

   Ms Huang:    The ladies – did the lady wear the clothes?

   Dr Xiao:       I don’t know.  Who knows.

   and argued that this amounted to an admission by Dr Xiao that he had shown her a picture of naked women.  But that passage should not be read out of context.  Relevantly, Ms Huang’s cross-examination of Dr Xiao on 6 April 2005 was:

   Ms Huang:Did you – are there any sexual nature from this picture, you say - - - ?

   Dr Xiao:Nothing, I don’t know answer because of - - -

   Driver FM:No, I don’t understand the question?

   Dr Xiao:I don’t – I don’t understand – I don’t know what – what do you want to do?

   Ms Huang:You say the picture of some female has been scored?

   Dr Xiao:I just answered that.

   Driver FM:Yes, that has been answered?

   Dr Xiao:I didn’t know.  I don’t know.

   Ms Huang:Are they are sex-natured?

   Dr Xiao:I don’t know.  Who knows?

   Ms Huang:The ladies – did the lady wear the clothes?

   Dr Xiao:I don’t know.  Who knows.[146]

   I not persuaded that Dr Xiao was admitting anything of the sort suggested by Ms Huang.  Rather, I understand Dr Xiao to have been refusing to give proper or responsive answers to Ms Huang’s questions and manifesting the exasperation with her which he appeared to experience frequently during this proceeding.

   [146] Pages 84-85 of Tab 3 of Exhibit R1.11.

5. Ms Huang also referred to Dr Xiao’s email to her of 22 October 2003, in which he had said that the Chinese newspaper website had “very ordinary picture of some females to give scores just for fun”.  Ms Huang argued that this statement was made before Dr Xiao was in a position to respond to the substance of her initial email to him, which had failed to open fully when Dr Xiao attempted to read it.  She suggested that by this statement Dr Xiao was anticipating an allegation of which he was unaware and that this evidenced a guilty mind.  However, Ms Huang deposed that she had accidentally met Dr Xiao in the UNSW library on 10 August 2003[147] at which time she told him of the allegations she was making against him.[148]  This explains why he knew at the time of the October 2003 emails what they were about and so his statement in the email of 22 October 2003 is unremarkable.  Indeed, he said as much in an email he sent to UNSW on 24 October 2003,[149] when he commented that even though he could not open the earlier attachments, he guessed what they contained.

   [147] Affidavit – Part 6 (42/24) as amended by Affidavit – part 6 (amended) (224/130), para.39.

   [148] Affidavit in Reply – 1 (131/55), para.35.

   [149] Annexure FX5 to his 4 April 2005 affidavit.

Intervening events (1999, 2000, 2001)

1. In her letter to HREOC, her email to Dr Xiao of 23 October 2013 and in the original version of her particulars Ms Huang complained that the intervening events probably occurred in 2001.  It also appears that that was the basis of this part of her claim when the matter was first before the Court.  In this regard, Driver FM recorded in the initial judgment, which was exhibit R2.3 in this stage of the proceeding, that Ms Huang alleged that on several other occasions “probably, in 2001” she had observed Dr Xiao looking at pornographic pictures on a computer screen.[150]  Subsequently however, in her amended particulars and in her evidence in this stage of the proceeding, Ms Huang has asserted that these events actually occurred in 1999 or early 2000.

   [150] Paragraph 3.

2. In para.4.4 of her written submissions Ms Huang said:

   … the sexual harassment by the second respondent caused I have seriously suffered from the mental health problems, has seriously threatened me in my life, had seriously threatened me in my PhD research, caused I totally discontinued the PhD in 2000, and resulted that I was excluded from the PhD and lost the PhD and my employments …

   It is difficult to accept, if Ms Huang was as deeply affected by such conduct as she has said she was, that she would not have provided a consistent account concerning when the intervening events occurred and, in particular, whether they occurred before she suspended her studies for most of 2000 or after she returned to UNSW in 2001.  Ms Huang’s assertion in para.6 of her Affidavit – in reply to the second respondent’s affidavit filed on 4 September 2009[151], that she used 2001 as a short-hand version of 1999 and 2000 and rounded up the date, does not provide a convincing explanation of this lack of consistency.

   [151] Document 208/110.

3. Moreover, contemporary documents which are in evidence and refer to Ms Huang’s leave from her studies in 2000 make no reference to any conduct by Dr Xiao having played a role, citing instead various other problems and difficulties in Ms Huang’s life as the reason she took that leave.  If the intervening, or the 1999, events had occurred and affected Ms Huang as deeply as she claims, one would have expected some mention to have been made of them in the context of her request for leave.  The fact that none was suggests that they did not occur.

4. It will be recalled that Ms Huang alleged that on one occasion Dr Xiao asked her to close the door to room 119 and that this reflected the fact that he was viewing on-line pornography at the time.  The fact that Dr Xiao may have asked Ms Huang to shut that door does not itself prove that Dr Xiao was viewing pornography at the time.  It is just as consistent with any number of other circumstances.

2001

1. Notwithstanding Dr Xiao’s rejection of Ms Huang’s allegation that he assisted her to download some software in 2001 and Ms Huang’s own inconsistent evidence on this subject, at one point saying that software had been downloaded and at another saying she did not know if it had been, on balance I conclude that something of that sort did happen.  It is significant in this regard that in his affidavit affirmed 1 September 2009 Dr Xiao’s denial of the allegation that he had helped Ms Huang download any software in August of September 2001 was based an inability to recall any such conduct, not on a clear rejection of its occurrence.  In that context it is also significant that the background facts of this allegation have been corroborated by Professor Park who gave a straightforward account of an uncomplicated series of events.  Consequently, I do give the contents of Professor Park’s affidavit some weight even though he did not attend the hearing to be cross-examined on his affidavit which, as an annexure to one of Ms Huang’s affidavits, was admitted into evidence under an exception to the rule against hearsay (see Huang v University of New South Wales (No.5) [2010] FMCA 975).

2. I find that Ms Huang sought assistance to download “software with reading function”, that Professor Park and Dr Kim were not able to assist and that Dr Xiao later followed Ms Huang “to her office”, presumably to provide the assistance she had requested.  However, those findings present other matters for consideration.

3. It is interesting to observe that Professor Park said that he and Dr Kim had been unable to download the “software with reading function” which Ms Huang sought.  Adobe Acrobat is widely used software and it can be accepted that downloading it is a simple process.  Consequently, the inability of the Korean doctoral candidates to download the software wanted by Ms Huang suggests that what she wanted was something other than Adobe Acrobat. It is therefore not incongruous that, apparently, it was not until Driver FM suggested at the first hearing in this matter that the “software with reading function” sought in 2001 was Adobe Acrobat, that Ms Huang alleged that it had been.  Consequently, it is possible that what Ms Huang sought in 2001 was the Chinese language-related program NJstar, or something similar, a circumstance which would accord with her early version of this event, set out in her email to Dr Xiao of 11 November 2003, where she said:

   You helped me twice for installing softwre [sic] and getting in Chinese News Paper from internet. 

   If Ms Huang did obtain Dr Xiao’s assistance with NJstar on two occasions it is not inconceivable that, when Dr Xiao was asked about it quite a long time later, his memory conflated the events of 1999 and 2001. 

4. However, of greater and practical significance is what happened after Dr Kim suggested that Dr Xiao would be able to provide the assistance which he and Professor Park could not.  Ms Huang said in her amended particulars that she could not recall how Dr Xiao got to room 123 from room 119 and whether he followed her or, presumably, preceded her there.  Her affidavit evidence was to similar effect although in her affidavit in the appeal proceeding before Rares J Ms Huang deposed that Dr Xiao followed her.  Professor Park deposed that Dr Xiao followed Ms Huang.  On balance I find that that is what occurred.

5. However, it would be inconsistent with Ms Huang’s claims to have been extremely upset at having been shown pornography by Dr Xiao when he downloaded NJstar in 1999, and to have not welcomed exposure to it again on various occasions from 1999 to 2001, for her to have accompanied Dr Xiao to her computer in another office, much less to have led the way.  Because I have found in essence that that is what happened, I conclude that Ms Huang did not object to Dr Xiao following her to her office in 2001.

6. Ms Huang’s description of what she then saw in room 123 changed over time.  In her HREOC complaint she spoke of there being an image of a couple “who intended to have sex” but subsequently, for instance in para.39 of her Affidavit – Part 6,[152] she said that they were in fact “having lustful sexual intercourse”.  The development of Ms Huang’s account to something more lurid than what was originally alleged does not lend it credibility.

   [152] Document 42/24.

Effect on her of seeing images

1. Ms Huang submitted that Dr Xiao’s sexual harassment of her had caused her to suffer mental health problems which led her to discontinue her doctoral studies and to be excluded from UNSW.  She also submitted that the sexual harassment had caused her anguish and had forever affected her life adversely.  She also suggested that the existence of her acknowledged mental health condition was evidence of her having suffered sexual harassment.

2. Ms Huang’s account to the Court was somewhat contradicted by her 9 December 2000 letter to Dr Harvey in which she said that the accident in the gym had caused her brain to be blocked, had prevented her from concentrating on her research and from completing her publications, had caused her to failed to gain a scholarship and to almost die from suffering and depression such that she could not resume her research.  Her account also tended to be contradicted by annexure HH-U6 to her Affidavit – in reply 26 (to SF2 & FX)[153] which was a letter dated 20 September 2002 from Mr W. Gillespie, a psychologist with UNSW student services, to UNSW’s Registrar advising that Ms Huang had attended UNSW’s counselling service on seven occasions since 24 October 2001 and had obtained assistance in:

   … management of stress associated with her PhD studies, personal difficulties, break down in relations with her supervisor and cancellation of her enrolment on 17 June 2002. …

   Hong states that personal matters in 2001 including: her mothers’ [sic] poor health, bankruptcy of lawyers handling her mothers [sic] immigration case, financial difficulties (Lack of scholarship funds, Centre Link not allowing Hong to do full-time study and receive benefits), personal difficulties (eg time spent organising a financial sponsor for her mother), and a deteriorating relationship with her supervisor resulted in her becoming overwhelmed mentally by July 2001 and unable to perform her studies efficiently. …

   Hong has shown me documentation that show she was held in high regard academically by her supervisor Dr Bobin [sic] Markovic in 1999 and that she performed well in her Masters course. In my opinion the adversities Hong experienced over 2001 are likely to have resulted in psychological distress severe enough to significantly impact on her academic performance and prevent her from achieving her academic potential.

   In 2002 Hong states that her personal circumstances have greatly improved (eg. Her finances are stable, her mothers [sic] health has improved and her visa application was successful) resulting in a reduction of depression and stress symptoms. With the external stresses in her life now reduced Hong is now more likely to perform to her academic potential.

   [153] Document 179/87.

3. In light of these records of Ms Huang’s own contemporaneous accounts, it is difficult to accept that she had been adversely affected by anything Dr Xiao might have done.  Moreover, expert evidence did not support the conclusion that Ms Huang’s mental condition had been caused or aggravated by the specific conduct alleged against Dr Xiao.  While, as Dr Sachdev said, “something” had happened, the doctor’s evidence was not sufficiently specific or independent of Ms Huang’s account of events to provide a basis to conclude that that “something” involved Dr Xiao.

Ability to complain about conduct

1. As recorded earlier in these reasons, Ms Huang said that until she made her complaint to HREOC about Associate Professor Winder and Dr Markovic it was too difficult for her to discuss the alleged sexual harassment by Dr Xiao.  While it may be reasonable that Ms Huang did not complain about Dr Xiao in the context of her PhD complaint, it is difficult to understand, given how affected she said she had been by his alleged conduct, why she did not explicitly complain about it in any respect or to any person before her letter to HREOC in October 2002.  In this regard, it should be recalled that well before her HREOC complaints, Ms Huang had been able to discuss with Ms Frank issues of alleged sexual harassment by Associate Professor Winder, Dr Markovic and, to a lesser extent, Mr Abayawickrama.

2. Another incongruous aspect of Ms Huang’s behaviour was the comparatively anodyne tone of her initial emails to Dr Xiao in late 2003 and also of her encounter with him in the UNSW library on 10 August 2003.  None of those contacts gave any hint that anything Dr Xiao may have done had had a significant impact on Ms Huang. 

3. These failures by Ms Huang to manifest discernible signs of the grave affront she claims Dr Xiao gave her suggest that what really concerned Ms Huang in 2002 and 2003 was her PhD and that anything which Dr Xiao may have done had not unduly affected her.

Delay in reporting to HREOC

1. Even though it appears that in 2002 Ms Huang was principally concerned with the treatment she said she received in the context of her PhD studies, it is difficult to understand why she did not include her complaints about Dr Xiao when she complained to HREOC about sexual harassment by Associate Professor Winder, Dr Markovic and Mr Abayawickrama, particularly in light of her allegedly strong reaction to it.  In this connection, Ms Huang’s statement that she only thought to complain about Dr Xiao after she read the request HREOC made of Associate Professor Winder, Dr Markovic and Mr Abayawickrama in its letters of 15 October 2002 suggests that anything Dr Xiao did was, in its own right, comparatively insignificant and that whatever significance it did have lay in the added pressure a complaint of that sort could place on UNSW.  It seems unlikely, if Dr Xiao had acted in August/September 2001 in the way alleged and had thereby caused Ms Huang the degree of distress she alleges, that she needed to be prompted by the HREOC letters of 15 October 2002 to complain about him.   

2. Whatever the case in that regard, in light of the fact that Ms Huang claimed that Dr Xiao’s sexual harassment in 1999 and in 2000 caused her to suspend her studies in 2000, I find it impossible to accept her explanation for her failure to mention those matters in her complaint of 31 October 2002 and her claim that she later needed to be prompted to do so.  The failure to include the 1999 incident and the intervening matters in her 31 October 2002 complaint suggests that they were of no particular significance to Ms Huang, if indeed they occurred. 

Ms Huang did not know Dr Xiao’s name

1. I found Ms Huang’s responses to my questions concerning her knowledge of Dr Xiao’s name to be unconvincing.  If Ms Huang had been as seriously affected as she claims by the various acts of sexual harassment she allegedly suffered at the hands of Dr Xiao, I do not accept that she would not have known his name from the time of the “Today Beautiful Girls” incident in 1999.  It is also unlikely if she and Dr Xiao had been the principal users of room 119, as she said, that she would not have known his name.

Clothes

1. Ms Huang denied giving Dr Xiao any gifts or clothes and said she did not recall how he obtained clothes from her.[154]  However, to be balanced against those assertions is her statement in her email to Dr Xiao of 23 October 2003 that:

   Sometimes you gave me help to install some software into my computer, and sometimes I gave you clothes to your wife.

   [154] Affidavit – Part 4 (40/22), para 16; Affidavit – in reply to the second respondent’s affidavit filed on 4 September 2009 (208/110), paras.57 and 61(6); T486, 25 August 2010.

2. Ms Huang’s explanation of this ostensible discrepancy, that if the passage was read as it was written it would be misinterpreted because her style of writing was to reverse the sequence of events does not persuade me.  Nor does her evidence that she had mentioned the used clothes in her email to point out that, although Dr Xiao had shown her erotic pictures, she did not have any other issues or conflicts with him.[155]  I found Dr Xiao’s account of events more plausible and I prefer his evidence that Ms Huang gave him clothes for his wife and I infer from Ms Huang’s email of 23 October 2003 that she did this because Dr Xiao had installed some software on her computer for her.

   [155] Affidavit – Part 9 (amended) (47/30), paras.26, 27.

Ms Huang’s employment at UNSW

1. Although Ms Huang devoted a lot of attention to her employment with UNSW and its scope, it is of no significance to the determination of this matter as the evidence demonstrates that she was also a student in the School of Safety Science at the time of each of the acts of sexual harassment alleged against Dr Xiao were said to have occurred.  That being so, it is not necessary to consider in detail the evidence and submissions on this point other than to state that I accept the evidence of Messrs Vassie and Ward to the effect that a person’s status as a PhD student at UNSW did not also confer on them the status of an employee and that provision to a student of financial support and facilities did not, without more, indicate an employment relationship.

Dr Xiao’s employment at UNSW

1. In a notice to admit facts dated 21 December 2009[156] addressed to UNSW which the university did not dispute, Ms Huang contended that UNSW had employed Dr Xiao for research work at the School of Safety Science and the School of Mining Engineering from 1996 to 2003 and had paid him through scholarships and other funds.  Although the contention is taken to have been admitted because UNSW did not dispute it, the Court is not obliged to accept a fact as proved simply because it has been admitted.  As observed by Heydon JA in Damberg v Damberg (2001) 52 NSWLR 492 at 519 [153], rules of court do not prevent admissions which have been made by expressly admitting or by not disputing the facts set out in a notice to admit facts from being contradicted or not acted on. His Honour said:

   In short, the courts are averse to pronouncing judgments on hypotheses which are not correct.  To do so is tantamount to giving advisory opinions and to encouraging collusive litigation.  On the other hand, the courts will act on admissions of or agreements about matters of fact where there is no reason to doubt their correctness.  But they are reluctant to do so where there is reason to question the correctness of the facts admitted or agreed.  (at 522 [160], Spigelman CJ and Sheller JA agreeing)

   [156] Exhibit NTAF 7.

2. In this case, the detailed evidence adduced by UNSW concerning the employment status of both Dr Xiao and Ms Huang leads to the conclusion that the contention concerning Dr Xiao’s employment by reason of his engagement in research studies, which was set out in the notice to admit facts dated 21 December 2009 and is taken to have been admitted, is not correct.  Consequently, it will not to be included amongst the facts taken into account in the determination of this matter.

3. Further, while I accept that at all relevant times Dr Xiao was nevertheless an employee of UNSW by reason of his various casual engagements, there was no evidence that his employment had any connection with the School of Safety Science nor any evidence that it was part of his duties to assist Ms Huang or any other student with their computer.  Specifically, there was no evidence that the computers on which Ms Huang said she was shown inappropriate images had any connection with Dr Xiao’s employment.

4. This want of evidence reflects the fact that Ms Huang did not appear to allege any connection between the allegations she made against Dr Xiao and his employment, the implication being that it was sufficient that Dr Xiao was employed by UNSW for it to be vicariously liable for any sexual harassment of Ms Huang proved against him. However, the test of vicarious liability in s.106 of the SDA requires something more, specifically that any acts of sexual harassment proved against Dr Xiao were ones “in connection with” his employment with UNSW.

5. In South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 at 410 [42], Black CJ and Tamberlin J observed that the expression “in connection with” seemed to be wider than the usual test of vicarious liability in employment situations, namely whether an act was done “in the course of” the person’s employment. Even so, the facts of this case do not support a conclusion that any of the conduct alleged against Dr Xiao could be characterised as having been connected with his employment. Rather, the conduct alleged was quite unrelated to it: South Pacific Hotels Pty Ltd at 409 [39]. In this regard, even though the conduct was said to have occurred on part of UNSW’s extensive premises, if it occurred it did so in a location quite distinct from Dr Xiao’s places of employment and involved an action which has not been demonstrated to have been, and in fact appears not to have been, related to his employment in any way.

6. Consequently, even if the acts alleged against Dr Xiao were to be found to have occurred, UNSW would not be vicariously liable for them.

Findings

1. Ms Huang submitted that in his emails to her of 22 and 24 October 2003 Dr Xiao alluded to having shown her the pictures in question and that various aspects of his evidence proved her claim that he had displayed those pictures to her in room 119 between late 1999 and early session of 2000.  She also referred in this regard to the events of 10 August 2003, saying that after she had advised Dr Xiao of the nature of her allegations, he said that “the events happened in a long times ago” and he departed quickly and that this behaviour amounted to an admission that he had shown her the pictures.  I did not discern any implicit admissions in Dr Xiao’s evidence and do not draw any inference of culpability from his conduct on 10 August 2003.

2. I found that Dr Xiao was consistent in his account and made concessions which might not have assisted him.  In contrast, Ms Huang’s recollections or claimed recollections were not consistent or reliable and I find that her behaviour in 1999, 2000, 2001 and 2002 was inconsistent with her having been exposed to the images she described.  I am not persuaded that she did see such images as the result of any conduct by Dr Xiao.

3. Should I be incorrect in those conclusions, Ms Huang’s lack of contemporaneous complaint, or other recorded action, nevertheless satisfy me that, notwithstanding her sensitive personality, anything she might have seen did not offend her.  I therefore infer that whatever it was she may have been shown was not particularly affronting.  I find that a reasonable person would not have anticipated that whatever it was she may have been shown would have offended, humiliated or intimidated her.

4. Even if I am wrong in all of those conclusions, I find that UNSW would not be vicariously liable for the sexual harassment alleged against Dr Xiao because the acts in question, even if proved, did not occur in connection with his employment with UNSW.

5. Ms Huang additionally alleged that UNSW had discriminated against her by having subjected her to some detriment but she did not identify the detriment, the relevant characteristic said to have prompted the discrimination or a relevant comparator.  In the circumstances the allegation is not made out.

Conclusion

1. For the above reasons I find that the respondents did not breach the SDA as alleged by Ms Huang and answer the question ordered to be determined separately: “No”.

I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 4 April 2014