Huang v University of New South Wales

[2006] FCA 380

FEDERAL COURT OF AUSTRALIA

Huang v University of New South Wales [2006] FCA 380

HONG CUI HUANG v UNIVERSITY OF NEW SOUTH WALES, BOBAN MARKOVIC, CHRIS WINDER, CHAMINDA ABAYAWICKRAMA AND FUCHUN XIAO

NSD 407 OF 2006

LINDGREN J
30 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 407 OF 2006

BETWEEN:

HONG CUI HUANG
APPLICANT

AND:

UNIVERSITY OF NEW SOUTH WALES
FIRST RESPONDENT

BOBAN MARKOVIC
SECOND RESPONDENT

CHRIS WINDER
THIRD RESPONDENT

CHAMINDA ABAYAWICKRAMA
FOURTH RESPONDENT

FUCHUN XIAO
FIFTH RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

30 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the costs of the first, second and third respondents.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 407 OF 2006

BETWEEN:

HONG CUI HUANG
APPLICANT

AND:

UNIVERSITY OF NEW SOUTH WALES
FIRST RESPONDENT

BOBAN MARKOVIC
SECOND RESPONDENT

CHRIS WINDER
THIRD RESPONDENT

CHAMINDA ABAYAWICKRAMA
FOURTH RESPONDENT

FUCHUN XIAO
FIFTH RESPONDENT

JUDGE:	LINDGREN J
DATE:	30 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. According to her application filed on 1 March 2006, the applicant (‘Ms Huang’) applies for leave to appeal from ‘the judgment of Federal Magistrate Driver given on 16 February 2006 and 16 May 2005 at Sydney’. 

2. In fact, Driver FM delivered a judgment on 16 May 2005 in proceeding SYG 1691 of 2003, and a second judgment on 16 February 2006 in that proceeding. 

3. The first of those two judgments was a final judgment.  By that judgment his Honour dismissed the application brought by Ms Huang as against the fifth respondent.  I am informed that Ms Huang has exercised her right of appeal to this Court from that judgment and that it is for hearing tomorrow, 31 March, before Rares J.  Accordingly, Ms Huang’s present application, in so far as it seeks leave to appeal from that judgment, must be dismissed.

4. The judgment of 16 February 2006 was interlocutory.  Indeed, it is headed ‘Interlocutory Orders’.  The interlocutory judgment was given in the course of a hearing which is currently adjourned before his Honour.  It is the proceeding as against the first, second and third respondents only.  I am informed that the fourth respondent has not been served, and that the proceeding as against the fifth respondent was severed and heard and determined on 16 May 2005, and is the subject of the final judgment to which I have already referred.

5. By the interlocutory orders made on 16 February 2006 his Honour ruled that the Federal Magistrates Court of Australia (‘FMCA’) had no jurisdiction to entertain the applicant's claims of victimisation.  A consequence of that determination was that his Honour ruled certain documents inadmissible.  His Honour annexed to his reasons for judgment a table detailing the evidentiary rulings that were founded upon his view that he lacked jurisdiction to entertain a proceeding for victimisation.

6. The history of Ms Huang's dealings with the Human Rights and Equal Opportunity Commission (‘the Commission’) and the course of the litigation before the FMCA has been, to say the least, complex and lengthy.  Ms Huang has tried to persuade me today that she did indeed make a complaint of victimisation to the Commission.  A termination by the Commission of a complaint is a condition of the jurisdiction of the FMCA, and, in substance, Federal Magistrate Driver held that there was not a termination of a complaint of victimisation because no such complaint had been made to, or accepted by, the Commission.

7. His Honour may or may not have been correct, but it is clear to me that leave to appeal should not be granted.  The reason why leave to appeal against an interlocutory order is required is well exemplified in the present case.  It would take a very considerable amount of this Court’s time for me to understand the complex course of events and the voluminous documents that have characterised the proceeding in the FMCA.

8. If his Honour’s decision should be favourable to Ms Huang, the present interlocutory issue will be shown to have been without consequence.

9. Ms Huang will have a right of appeal in the event that his Honour's final decision should be unfavourable to her.  In an appeal by her to this Court she would be entitled to argue the very points that she wishes to argue before me today.  It would be a gross waste of judicial resources if I were to embark upon a detailed study of the course of the hearing before Driver FM, and, in the event that there should be an appeal subsequently to this Court as of right, the same task or substantially the same task should have to be done again.

10. It will be open to Ms Huang, when the hearing resumes before his Honour, to put to him documents which she has handed up to me today and which bear the word ‘victimisation’, and which, she says, demonstrate that a complaint of victimisation was indeed made to the Commission.  If his Honour should come to the conclusion that the interlocutory order which he made on 16 February should not have been made, all will not be lost ‑ he will be in a position to change his mind, and to reverse his rulings in relation to the documents which he ruled inadmissible.

11. For the above discretionary reasons, and without expressing any view as to the correctness or otherwise of his Honour’s decision, the present application should be dismissed also in so far as it relates to the interlocutory decision of 16 February 2006.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            6 April 2006

Counsel for the Applicant:	The applicant appeared in person
Counsel for the First, Second and Third Respondents:	Ms. J Oakley
Solicitor for the First, Second and Third Respondents:	Mr. A Mullen, UNSW Solicitor
Date of Hearing:	30 March 2006
Date of Judgment:	30 March 2006