Huang v University of New South Wales
[2010] FMCA 171
•1 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v UNIVERSITY OF NEW SOUTH WALES & ANOR | [2010] FMCA 171 |
| PRACTICE & PROCEDURE – Application for vacation of imminent hearing date. |
| Federal Magistrates Act 1999, s.3 Federal Magistrates Court Rules 2001, r.1.03 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
| 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: | 1 March 2010 |
| Date of Last Submission: | 1 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr I. Latham |
| Solicitors for the First Respondent: | University of New South Wales Legal Office |
| No appearance by the Second Respondent |
ORDERS
The applicant’s application in a case filed on 12 February 2010 and amended on 1 March 2010 be dismissed.
Costs be reserved.
| 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
Introduction
These proceedings concern allegations of sexual harassment which the applicant has made against the two respondents. The application in a case currently before me was filed on 12 February 2010 and seeks an order vacating the hearing date in these proceedings. The hearing is currently listed for four days commencing on 29 March 2010. By a further application in a case filed by leave today, the applicant has expanded on the matters which she raised in the application in a case filed on 12 February 2010.
Application to vacate hearing date
In summary, the bases for the applicant’s application for the vacation of the hearing date are:
a)first, that the second respondent is an unreliable witness and has perjured himself;
b)secondly, that Dr Park, who currently resides in Korea, swore an affidavit but is not available to give evidence and will not be available unless the Federal Court, in an application to be heard on Thursday, issues a letter of request to be sent via the Department of Foreign Affairs & Trade to the authorities of the Republic of Korea by which, the applicant proposes, it will be organised that Dr Park give his evidence in these proceedings by video-link. It should be noted at this point that no order has been made that Dr Park’s evidence be taken by video-link as it is unknown what arrangements might be made were a letter of request to issue;
c)thirdly, the applicant says that she wishes Ms Yi Wang to give evidence in the proceedings but Ms Wang is on holidays and has not been served with a subpoena which the applicant caused to be issued last November;
d)fourthly, that a Dr Sachdev is on holiday although it is expected that he or she will return in time to give evidence this month but, again, a subpoena which was issued last November has not been served on the doctor;
e)fifthly, the applicant says that she is unwell and cannot focus on the matters that she is required to attend to in order to prepare her case and she submitted for the Court’s consideration two medical certificates as annexures to her affidavit sworn 12 February 2010. The applicant particularises the difficulties which she says she is encountering as a result of her health condition and these are set out in the application in a case filed today; and
f)finally, the applicant says that she is finding difficulties addressing the material contained in the affidavit of Ms Frank filed by the first respondent (“University”) on 11 September 2009.
The second respondent did not appear today but the University did and made a number of submissions opposing the application for the vacation of the hearing date, largely based upon the lengthy history of the case, the age of the underlying claims, the lateness of the application to vacate the date and the unconvincing nature of the medical evidence on which the applicant has relied. This should not be taken to be a criticism of the doctors but is, really, an observation on what weight should be accorded to the opinions which they have given for reasons which will emerge.
The question that I must now decide is whether I should exercise my discretion to vacate the hearing date and stand the matter over to a date later in the year for hearing, for instance, in the week commencing 28 June 2010 which has been suggested by the applicant.
Relevant principles
Principles relevant to this application emerge from the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. The leading judgment in that case is that of Gummow, Hayne, Crennan, Kiefel and Bell JJ. Their Honours highlighted a number of issues which are appropriate to be taken into account in situations similar to the one presenting today. Certainly, Aon Risk Services Australia Ltd v Australian National University was concerned with a late amendment which had the effect of making the hearing date go off, but an application for the vacation of a hearing date is an analogous situation.
In their judgment, their Honours made a number of points, which I will summarise:
a)the conduct of litigation is not merely a matter for the parties but is also one for the court. The need to avoid disruptions in the court’s lists, with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at 211 [93]);
b)when considering an application such as this, concern must be had not just to the applicant but also to the requirement on the court to do justice to all litigants. It may be just when an adjournment is sought that the court take account of other litigants, not just the parties to the litigation in question (at 212 [94]-[95]);
c)it should be taken into account that costs are not always a sufficient compensation for the vacation of a hearing date and the judge is entitled to weigh in the balance, for instance, the strain which litigation imposes upon litigants (at 213-214 [99]-[100]);
d)much may depend upon the point which the litigation has reached, relative to a trial, when the application for an adjournment or vacation of a date is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for the application in question, having regard to the other party and the other litigants awaiting trial dates (at 214-215 [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at 215 [103]); and
f)all the matters relevant to the exercise of the power should be weighed. The fact of substantial delay, wasted costs and the concerns of case management will assume importance in such circumstances (at 217 [111]).
Some important statements were made in Aon Risk Services Australia Ltd v Australian National University which are worth quoting in full. The Chief Justice said:
It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice. (at 195 [35])
The plurality said:
Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants. (at 212 [94])
And:
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. (at 217 [113])
In the context of those statements, the Court’s statute is relevant. Section 3 of the Federal Magistrates Act 1999 states:
(2) The other objects of this Act are:
(a) to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
(b) to enable the Federal Magistrates Court to use streamlined procedures; and
(c) to encourage the use of a range of appropriate dispute resolution processes.
Those objects are repeated in r.1.03 of the Court’s Rules. It is also relevant to observe that r.1.03(4), provides:
1.03 Objects
…
(4) To assist the Court, the parties must:
• avoid undue delay, expense and technicality …
Consideration
When considering the matters which the applicant has raised today, it should also be borne in mind that the hearing date listed in four weeks’ time comes as no surprise to any of the parties. On 26 February 2009, more than a year ago, this matter was listed for hearing on 20 October 2009. That date was varied on 4 September 2009 and the hearing brought forward by one day, to 19 October 2009. Significantly, on 21 September 2009 the issues to be canvassed at the hearing were materially narrowed from the entirety of the matter to a question for separate determination, namely:
Did the respondents breach the Sex Discrimination Act 1984 (Cth) as alleged by the applicant?
Because I was suddenly and seriously taken ill in October, that hearing date was vacated. The matter was subsequently relisted for hearing in four weeks’ time. Nothing which the applicant raises today should, in reality, have come as a surprise to her or could not have been dealt with, and indeed ought to have been dealt with, in time for the hearing listed for last October.
Dealing in turn with the matters which the applicant has raised in her application in a case, firstly, her allegations against the second respondent as being an unreliable witness and having perjured himself. It is far too early to reach any conclusion about these matters, they are ones to be determined at the hearing of the separate question. In fact, the determination of those matters, given the seriousness of the applicant’s claims, should not be delayed. The fact that the second respondent has denied the applicant’s claims is certainly no basis on which to adjourn the hearing date.
As to Dr Park being unavailable, it has been known for some time that he is not in Australia. As a result of more than one interlocutory application in this Court, the applicant’s proposal regarding how Dr Park might give evidence has been refined to the point where an application for a letter of request has been made to the Federal Court and has been listed for hearing on 4 March 2010. That is three days hence. The lateness of the application to the Federal Court is a matter for which the applicant must take responsibility. That no letter of request has been issued at this point is not a reflection on the courts or on the respondents, but on the failure of the applicant to adequately prepare her case in good time. There is, in my view, no good reason why the hearing should be vacated simply because the applicant has made an application now, rather than last year, for a letter of request.
The next issue raised by the applicant is that Ms Yi Wang is overseas on holiday. No evidence has been put before the Court as to when Ms Wang left Australia but the applicant said from the bar table that she was still in Australia last December. That concession is important given that the subpoena to Ms Wang was issued by this Court on 11 November 2009, and lest there be any argument on the point, the subpoena in question requires Ms Wang’s attendance at Court on 29 March 2010. Further, the evidence which, according to the applicant’s application in a case, Ms Wang would give does not appear to be relevant to the issue which the Court has to decide, namely, whether the sexual harassment which the applicant alleges occurred at the University of New South Wales in 1999, 2000 and 2001 did occur. The applicant says that Ms Wang was witness to an exchange between the applicant and the second respondent on 30 August 2004. What the second respondent is alleged to have said to Ms Wang four or five years after the events the subject of these proceedings can hardly be central to the case. In any event, Ms Wang should have been served with her subpoena before she went overseas.
Similarly, Dr Sachdev has not been served with the subpoena which was issued by this Court on 11 November 2009 and which also required the doctor to attend as a witness on 29 March 2010. In her submissions today, the applicant said that she was concerned to not cause inconvenience to Dr Sachdev, who is a very busy doctor, and were the subpoena to have been served, it might have caused difficulty with the scheduling of patients. When I asked the applicant whether or not she had any concern for the inconvenience to the respondents, her answer was, in effect, that they had brought the inconvenience upon themselves because they had acted in the way she alleges in the application and had sexually harassed her.
As to the applicant’s inability to prepare for the case by reason of her medical condition, I have certainly given serious consideration to the document signed by Dr Harvey (“referral”) and to the medical certificate signed by Dr Ullman. Neither of these gentlemen is a psychiatrist. It would appear that Dr Harvey is a general practitioner as his qualifications are Bachelor of Medicine and Bachelor of Chemistry and Dr Ullman too, who practices out of the Eastlakes Healthcare Medical Centre, having a Bachelor of Medicine and Bachelor of Surgery and a fellowship of the Royal College of Surgeons in Edinburgh.
The important thing to note in relation to Dr Harvey’s medical certificate is that, although he diagnoses the applicant as having obsessive compulsive disorder, depression, gastric reflux and an inability to focus on more than one issue at a time, the reason she is required to consider more than one issue at a time is the late making of the application in the Federal Court. But in any event, there is nothing in the doctor’s document which suggests a detailed consideration of the applicant’s condition or that the doctor has relied on anything more than what the applicant has said to him. Similarly, Dr Ullman says nothing more than that the applicant will require extra time for document preparation. He does not say why.
I have not reached my view, in particular concerning Dr Harvey’s “referral”, lightly but as a document his “referral” is simply not persuasive enough to convince me, in all the circumstances and after all the time the applicant has already had to prepare her case, that the hearing date should be vacated. I would need to see Dr Harvey and Dr Ullman and hear them cross-examined before I would consider that the applicant’s medical condition, in the circumstances and given the history of the case and its length, justifies vacation of the hearing date.
As to the applicant’s need to consider the affidavit of Ms Frank, it should be noted that that affidavit was filed on 11 September 2009. The applicant has had many months to deal with whatever Ms Frank says.
Moreover, there is, in essence, nothing for consideration at the hearing listed at the end of this month which has not been patently clear to all the parties for many months and possibly years. In this connection, it should not be overlooked that this is not the first hearing in this case. This is a rehearing of the matter; it was originally heard by Driver FM and has been returned to this Court following a successful appeal in the Federal Court.
The application has come far too late. The various submissions and explanations are unpersuasive.
Nor can the Court ignore the impact which these proceedings must have had on the University and, particularly, the second respondent Dr Xiao. The University has, with its written outline of submissions, provided the Court with a printout of the history of this matter since it was first before Barnes FM on 11 March 2008. It is a history of application after application after application, directions after directions after directions. The matter must reach a conclusion and, in my view, the applicant has had sufficient opportunity to prepare her case.
It must also be kept in mind that the hearing date which the applicant wishes to be vacated was fixed on 10 November 2009. Since that time, four days of the Court’s diary have been blocked out for the hearing of this case which has denied other litigants an opportunity to have their hearings listed at that time. The impact on litigants generally and on the reputation of the Court has to be kept in mind, particularly given the statutory enjoinder in this Court’s Act and in its Rules that this should be a court using streamlined procedures operating as informally as possible and arriving at decisions without undue delay, expense or technicality. Certainly, the applicant’s frequent applications in this case, most of which have been unsuccessful, have caused additional expense. A further vacation of the hearing date would certainly cause undue delay.
Finally, given the age of the case, it should not be overlooked that the memories of the witnesses will continue to fade as time passes. It is difficult to say, without hearing the witnesses give their evidence, how reliable their recollections will be but it is difficult to conceive that they will be better in June than they are this month, although it is possible that, given the extensive period since the events in question, such a period is of minor significance. Whatever the case in that regard, the time has come for the matter to be heard.
Conclusion
The application for the vacation of the hearing date is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 March 2010
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