Huang v University of New South Wales - [2011] FMCA 387

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v UNIVERSITY OF NEW SOUTH WALES & ANOR

[2011] FMCA 387

HUMAN RIGHTS – PRACTICE & PROCEDURE – Ambit of proceedings arising out of a complaint under the Sex Discrimination Act 1984 terminated by Australian Human Rights Commission.

Australian Human Rights Commission Act 1986, s.46PO

Applicant:

HONG CUI HUANG

First Respondent:

UNIVERSITY OF NEW SOUTH WALES

Second Respondent:

FUCHUN XIAO

File Number:

SYG 577 of 2008

Judgment of:

Cameron FM

Hearing date:

20 May 2011

Date of Last Submission:

20 May 2011

Delivered at:

Sydney

Delivered on:

20 May 2011

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms J. Oakley

Solicitors for the First Respondent:

Bartier Perry

The Second Respondent appeared in person

ORDERS

Those parts of the applicant’s affidavits which are said to be relevant to these proceedings by reason that they evidence the conspiracy which the applicant alleges, not be allowed.

FEDERAL MAGISTRATES
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

On 25 March 2011 I made orders, inter alia, that:
2. On or before 15 April 2011 the applicant file and serve written submissions addressing the following issues:
(a)the basis upon which it is said the allegations of conspiracy are relevant and related to the applicant’s allegations against the second respondent and the applicant’s allegation that the first respondent is vicariously liable for such conduct as may be proved against the second respondent; and
(b)the basis upon which it is said that the applicant may raise in this proceeding allegations of fact which have been the subject of findings made by Driver FM in the separate proceeding between the applicant, the first respondent, Professor Winder and Dr Markovic.
The matter is before the court today for consideration of those matters. The applicant has filed two written submissions and sought, unsuccessfully, to file an additional document in support of her assertion that certain evidence contained in her affidavits, which she says points to a conspiracy on the part of certain individuals, is evidence which should be received in this case because it is relevant to matters in issue.
The documents which the applicant has filed do not elucidate the conspiracy which she alleges existed, however, after some questions from me today, she identified the conspiracy in question as being an agreement between Professor Winder and Dr Markovic, both then of the first respondent’s (“University”) School of Safety Science, that they would together do damage to her PhD studies and that this conspiracy was manifested in a number of ways including them writing to other members of the University and getting them to follow the course which they had set so that the applicant faced a systematic problem.
These proceedings arise out of complaints which the applicant made to what was then the Human Rights and Equal Opportunity Commission (“Commission”) in 2002. The first of those complaints was particularly concerned with Professor Winder and Dr Markovic and the role of the University in the disadvantage which the applicant alleged. She was then permitted, following a further complaint on 31 October 2002, to expand her complaint to the Commission. In her letter to the Commission of 31 October 2002, which is attachment C to the documentation evidencing the Commission’s termination of the applicant’s complaints, she made reference for the first time to the event of sexual harassment allegedly committed by the second respondent in these proceedings, Dr Xiao. In that complaint letter, she said:
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 sexual pictures in which there was naked man with woman who intended to have sex.
After the complaint to the Commission was terminated, the applicant commenced proceedings in this Court against the University, Professor Winder, Dr Markovic, Dr Xiao, and a Mr Abayawickrama, who is currently the subject of separate proceedings being brought by the applicant. The proceedings against the University, Professor Winder, Dr Markovic and Dr Xiao were heard by Driver FM, who dismissed them. On appeal to the Federal Court, Rares J upheld the applicant’s appeal to the extent that it related to the claim concerning Dr Xiao and remitted the matter to this Court for re-hearing. The order which his Honour made which is relevant for today’s purposes was:
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.
Paragraphs 15 to 18 of the “Particulars of My Application” to which his Honour’s order refers are found in the document “Particulars of My Applications” originally filed in the first stage of the proceedings on 29 October 2004. It is document number 2 in the file in these proceedings. In paras.15 to 18 of that document, the applicant particularises her claim 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 first 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”. (emphasis included)
After the matter was returned to the Court for re-hearing, leave to amend the particulars set out in paras.15 to 18 was allowed and a document entitled “Particulars of My Applications (amended for paragraph 15-18) [sic]” was filed on 26 February 2009. It is document 31 in the Court’s file. That document is too long to quote in these reasons but suffice to say that, although it is much more expansive than the original version of paras.15 to 18, it nevertheless covers the same territory.
The significance of this history lies in the fact that the allegation of conspiracy which the applicant has identified in her submissions today could not properly be said to have been the subject of the complaint which the applicant made to the Commission. As required by s.46PO(3) of what is now the Australian Human Rights Commission Act 1986, it is certainly not the same, or the same in substance, as the alleged unlawful action that was the subject of the complaint against Dr Xiao which was terminated by the Commission and I do not think, even giving the applicant the sort of latitude which is given when applying s.46PO(3), that it could be said to arise out of the same or substantially the same acts, omissions, or practices as were the subject of that complaint. Further, the re-hearing which Rares J ordered was limited to the matters which the applicant raised originally in paras.15 to 18 of the particulars of her complaint. The expansion of that document in the amending document filed on 26 February 2009 does not expand the scope of the original complaint. That is to say, the complaint before the Court does not include, as an issue, the alleged conspiracy which the applicant has identified today.
It has been difficult to keep this case within proper bounds but it is important that efforts be made to do so and, in particular, that an issue which is plainly not part of the proceedings brought to court should not be allowed to be raised as if it were, or to permit irrelevant evidence to be adduced such that the hearing will be even more time-consuming. It should also be observed that the issues which the applicant raises in relation to the conspiracy she has articulated today seem to be only a continuation of the complaints which she made in the early part of the proceedings before Driver FM as far as that concerned the actions of Professor Winder, Dr Markovic and the University which ultimately led to her exclusion from her PhD studies. What the University did in that connection is of no concern to me in these proceedings.
At this point, in light of the question which has been ordered to be determined separately, the only thing which I am concerned to determine is whether Dr Xiao acted in the way which the applicant alleges and, if he did, whether the University has vicarious liability for that. I am not concerned with any damage which the applicant may have suffered as a result of that conduct, should it be proved, or the course of her PhD studies. For these reasons, those parts of her affidavits which are said to be relevant to this proceeding by reason that they evidence the conspiracy which the applicant alleges are, in my view, irrelevant to this case and should not be allowed.
Finally, as far as the allegations of fact which have been the subject of findings made by Driver FM in the earlier stage of the proceedings are concerned, it is impossible to say at this point whether any particular fact will or will not be relevant to this case. Certainly, there will be issues of res judicata if the applicant intends to place facts before the court in order to raise issues which have already been decided conclusively, at least between the applicant and the University, by Driver FM. However, facts can be adduced as evidence on other issues and it will be a matter to determine on a case by case basis whether evidence which has been adduced before Driver FM is or is not relevant or properly adduced in these proceedings.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 31 May 2011