Huang v University of New South Wales

[2008] FMCA 11

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v UNIVERSITY OF NEW SOUTH WALES & ORS [2008] FMCA 11

HUMAN RIGHTS – Sex, race and disability discrimination in education – applicant’s PhD enrolment cancelled – allegations of harassment by PhD supervisors – allegations of discrimination on the basis of inadequate English language ability and mental disabilities – alleged victimisation.

Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 10, 11, 42, 123
Federal Magistrates Act 1999 (Cth), s.51
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.3, 46PH, 46PO
Racial Discrimination Act 1975 (Cth), ss.9, 18, 18A, 27
Sex Discrimination Act 1994 (Cth), ss.5, 21, 28A, 28F, 94, 106

AB v Adult Multicultural Education Services [2006] VCAT 1862
Bailey v ANU (1995) EOC 92-744
Cate v International Flavours & Fragrances (Aust) Pty Ltd [2007] FMCA 36 Damiano & Anor v Wilkinson & Anor [2004] FMCA 891
Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503
Huang v University of New South Wales & Ors [2005] FMCA 463

Huang v University of New South Wales & Ors (No 2) [2006] FMCA 220

Huang v University of New South Wales [2006] FCA 380
Huang v University of New South Wales (No 3) [2006] FCA 626
Obieta v NSW Department of Education & Training [2007] FCA 86
Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 122

Applicant: HONG CUI HUANG

First Respondent: UNIVERSITY OF NEW SOUTH WALES

Second Respondent: BOBAN MARKOVIC

Third Respondent: CHRIS WINDER

File Numbers: SYG 1691 of 2003 & SYG 2124 of 2004

Judgment of: Driver FM

Hearing dates: 13-17 February, 14-15 March, 5, 7-9, 14 June, 31 July, 1-4, 30 August 2006

Date of last submissions: 23 November 2007

Delivered at: Sydney

Delivered on: 11 February 2008

REPRESENTATION

Ms Huang appeared in person

Counsel for the Respondents: Ms J Oakley

Solicitors for the Respondents: UNSW Solicitor

ORDERS

1. The application as against the first, second and third respondents is dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1691 of 2003, SYG 2124 of 2004

HONG CUI HUANG

Applicant

And

UNIVERSITY OF NEW SOUTH WALES

First Respondent

BOBAN MARKOVIC

Second Respondent

CHRIS WINDER

Third Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Hong Cui Huang is a former PhD student at the University of New South Wales (“the University”). She did not obtain her degree and holds the University and Dr Boban Markovic (her supervisor) and Professor Chris Winder (her co-supervisor) responsible. Ms Huang has applied to the Court under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) seeking compensation in relation to asserted sex, racial and disability discrimination which she believes frustrated her studies. The documentation filed by Ms Huang in support of the application is voluminous. Essentially, however, Ms Huang complains of sexual harassment in 1999 by Professor Winder and by Dr Markovic and alleges inappropriate comments by Dr Markovic in 2001. Ms Huang also makes sexual harassment allegations against two other persons who are not the subject of this present proceeding[1]. 

   [1] The application against Mr Chaminda Abayawickrama was severed as it had not been served at the time the severance order was made in late 2005.  On 5 June 2006, following statements from Ms Huang that Mr Abayawickrama had been served in Sri Lanka, I made orders for a separate trial relating to questions of Mr Abayawickrama’s liability, and any vicarious liability of the University.  I also called for evidence proving service.  The application against Mr Fuchun Xiao has already been heard: see Huang v University of New South Wales & Ors [2005] FMCA 463. In Huang v University of New South Wales (No 3) [2006] FCA 626 the Federal Court ordered a re-trial of that aspect of the proceedings, separately from all other issues in the proceedings. On 5 June 2006 I disqualified myself from further involvement in that aspect of the proceedings.

2. The application was amended in 2004 in order to add allegations of racial discrimination and disability discrimination in relation to the cancellation of Ms Huang’s PhD enrolment.  The racial discrimination is said to stem from Ms Huang’s limited command of the English language.  The disability discrimination is said to be based upon Ms Huang’s asserted anxiety and depression. 

3. Ms Huang made two relevant complaints to HREOC. The first complaint (of sexual harassment) was terminated by a delegate of the President of HREOC on 28 July 2003 pursuant to s.46PH of the HREOC Act. The complaint of sexual harassment against Dr Markovic was terminated on the basis that there was no reasonable prospect of a successful conciliation in relation to the alleged events in 2001 and in relation to the balance, the complaint was made more than 12 months after the alleged events took place. The complaint of sexual harassment by Professor Winder was terminated on the basis that the events took place more than 12 months before the complaint was made.

4. The second termination was made by a delegate of the President on 26 May 2004. This related to the complaints of racial discrimination and disability discrimination. The notice was issued pursuant to s.46PH of the HREOC Act on the basis that the complaints related to alleged events occurring more than 12 months before the complaints were made.

5. Ms Huang also alleged victimisation as a result of complaining of sexual harassment and also because of her complaints of racial and disability discrimination.  I ruled that I had no jurisdiction to entertain the application insofar as it was based on the victimisation allegations[2].  However, I modified that ruling on 5 June 2006 upon the basis that Ms Huang had referred to alleged victimisation in her first complaint to HREOC, and, although HREOC had declined to accept a complaint of victimisation in later correspondence, Ms Huang was free to put a different legal characterisation on her complaint (which was terminated) than had been put on it by HREOC.  I confirmed that I could not consider allegations of victimisation which post date the termination of the complaint.

   [2] Huang v University of New South Wales & Ors (No 2) [2006] FMCA 220

6. The respondents deny any sexual harassment and deny any unlawful discrimination or victimisation. 

7. Ms Huang gives extremely detailed particulars of her claims in a statement of particulars filed on 29 October 2004. She amended this statement by a statement of amended particulars filed in court by leave on 13 February 2006. Ms Huang relies upon ss.28A, 28F, 106 and 21(2) of the Sex Discrimination Act 1984 (Cth) (“the SDA”) in relation to the sexual harassment allegations.

8. Ms Huang asserts direct sex discrimination contrary to ss.5(1), 21(2)(a)(c) and 106 of the SDA by the University and Dr Markovic.

9. Ms Huang alleges direct disability discrimination by the University and Professor Winder contrary to ss.5(1), 10, 11 and 123 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). Ms Huang also alleges indirect disability discrimination by Professor Winder and Dr Markovic contrary to ss.6 and 123 of the DDA and asserts liability by all three respondents.

10. Ms Huang alleges indirect racial discrimination contrary to ss.9(1A), 18 and 18A of the Racial Discrimination Act 1975 (Cth) (“the RDA”).

11. The factual history of the parties’ dealings leading to the complaints by Ms Huang is quite detailed, but is accurately summarised in the respondents’ written submissions[3].  I adopt that summary with minor amendments.

    [3] filed on 3 August 2007 – at paragraphs 22-56

12. The genesis of the Ms Huang’s complaints is the decision by her PhD supervisors not to support her re-enrolment as a PhD candidate in 2002.

13. Between 1995 and 1997 Ms Huang was enrolled as a candidate for a Master of Environmental Studies degree by course work. The second respondent (Dr Markovic) supervised a research project that Ms Huang undertook as part of that degree[4]. Before completing the requirements for the Master degree Ms Huang applied to undertake a PhD. Her application was initially unsuccessful[5] but was approved after Dr Markovic requested the Higher Degrees Committee to reconsider her application. Ms Huang deferred commencement until 1999[6].

    [4] Dr Markovic affidavit, paragraph 7

    [5] Ex HH-G3

    [6] Ex HH-G6

14. Ms Huang commenced her PhD candidature in 1999[7] and was awarded a one year scholarship of $16,135. Her supervisor was Dr Markovic and her co-supervisor was Professor Winder. There are progression requirements for PhD candidates[8]. By late 1999 Ms Huang had not submitted either a research proposal or a literature review despite being requested to do so[9].

    [7] applicant’s affidavit annexure I1

    [8] Dr Markovic affidavit, annexure BM 7, paragraph 4

    [9] Dr Markovic affidavit annexure E4

15. Ms Huang withdrew her enrolment in 2000[10]. A progress review was conducted in October 2000 and required completion of a statement of research question, literature review, a project plan and biohazard training by June 2001[11]. Preliminary laboratory experiments were required to be completed by December 2001.

    [10] Dr Markovic affidavit, anexures E15 – E18

    [11] Dr Markovic affidavit, annexure BM8

16. In 2001 Ms Huang initially re-enrolled as a full time candidate[12] but subsequently changed this to part time[13]. Dr Markovic asked Ms Huang on 31 January 2001 to prepare a proposed plan of research work and advised her that the first objective that should have been met was a review of literature[14]. Professor Winder informed Ms Huang that the University and Faculty were urging schools to improve student performance in research degrees and Heads of School were being called upon to justify continuing enrolments. He urged Ms Huang to consider her position carefully[15].

    [12] Dr Markovic affidavit, annexure BM9

    [13] annexure BM10 & E20

    [14]

    [15] annexure BM12

17. A formal review of Ms Huang’s progress was undertaken on 26 March 2001[16]. Her progress was determined to be unsatisfactory. In particular she had not collated a literature review or commenced her laboratory research work. A timetable for the submission of work was proposed and accepted by Ms Huang.  Ms Huang did not complete her literature review, statement of research question or research plan by June 2001. Dr Markovic repeatedly requested Ms Huang for this work throughout 2001[17] and warned her that if she could not provide these then he would not recommend her re-enrolment[18].

    [16] applicant’s affidavit annexure D11; Dr Markovic, annexure BM18

    [17] Dr Markovic affidavit, annexure E21, E24 & E25

    [18] E21

18. Ms Huang also sought to defer laboratory training because of a court case that she was involved in and advised that she would attempt to submit her research to date by 9 July 2001[19]. She acknowledged on 18 June 2001 that her re-enrolment for 2002 might not be supported because of her failure to make progress. Dr Markovic encouraged Ms Huang to consult the student counselling service if her private concerns were affecting her work[20].

    [19] Dr Markovic’s affidavit, E25

    [20] E25

19. Ms Huang did not submit any work by 9 July and apologised on 4 July[21] for not completing her literature review and asked to defer laboratory training until the end of July 2001[22]. Dr Markovic urged her to seek medical help and help from the student counselling service to assist with her personal health problems. He also extended the date for submission of the literature review and commencement of training to 1 August 2001 and suggested that Ms Huang not proceed with training until she had completed her literature review and research plan[23].

    [21] E26

    [22] E26

    [23] E27

20. Dr Markovic had a meeting with Ms Huang in early July 2001 and received emails from her in which Ms Huang expressed the view that the literature review was not important and that she wished to finish the experimental work as soon as possible[24]. He reminded her of the standard approach to PhD research work and asked her to provide evidence of her progress. Ms Huang expressed the hope that she would be able to fulfil the project requirements[25].

    [24] E28

    [25] E29

21. Ms Huang was asked to attend for laboratory training on 17 July 2001[26]. She did attend but the results were not good[27]. She requested that her training be repeated[28]. On 6 August 2001 Dr Markovic continued to encourage Ms Huang to seek assistance from student counselling services and the student medical centre to deal with any personal and other health issues she might have but also advised her that she had to make significant progress if she wished to be allowed to re-enrol in 2002[29].

    [26] E30

    [27] E32

    [28] E33

    [29] E34

22. Ms Huang thanked Dr Markovic and said that she would try her best to meet the requirements by the end of 2001 including the literature review and research plan[30]. She maintained that she was working on her literature review throughout August and September 2001[31]. Dr Markovic encouraged Ms Huang’s laboratory work and advised her to read the literature he had directed her to but told her on 12 September that if a suitable review of literature had not been submitted and significant research began by 1 December 2001 he would not be recommending re-enrolment in 2002.

    [30] E35

    [31] E36 & E37

23. Ms Huang had difficulty solving extraction problems she had been asked to work on, seemed to abandon the exercise[32] and to take up a new exercise that had not been allocated to her[33].

    [32] E39 & 40

    [33] CW8 & E39 & 40

24. On 13 September 2001 Professor Winder suggested that Ms Huang give strong consideration to her continued enrolment in a PhD with a view to transferring to a less demanding program such as an MSc.

25. A literature review was finally submitted to Professor Winder and Dr Markovic on 28 September 2001[34]. The work submitted by Ms Huang was considered to be well below the minimum standard expected of a student in her second year of study for a PhD[35]. Professor Winder returned the draft to her with annotations and she was requested to resubmit the next draft by the end of November as part of her annual review. Professor Winder told Ms Huang that if the draft she had submitted had been considered as part of her annual review he would not be recommending her re-enrolment.

    [34] Professor Winder’s affidavit, CW12; Dr Markovic’s affidavit, BM19

    [35] CW13

26. By late September 2001 Ms Huang was not making equivalent progress in laboratory techniques as other students were[36]. Dr Markovic encouraged her to work as part of a team to assist the development of her skills. Ms Huang complained about this arrangement to Professor Winder and Jonathan Hulme of the Post Graduate Board[37].

    [36] E41 & E42

    [37] CW15 & 16

27. In October 2001 Ms Huang was again urged to consult the counselling service by both Professors McLachlan and Winder[38].

    [38] CW14

28. On 16 October 2001 Professor Winder forwarded documents from the Student Centre to Ms Huang and informed her of the change in DETYA policy concerning support to long term research students.

29. Ms Huang re-submitted her literature review on 30 November 2001[39]. She acknowledged that the work had limitations. Dr Markovic provided his comments on 31 December 2001[40] and Professor Winder on 3 January 2002[41]. Neither of her supervisors thought that the submitted work was of the standard required for a PhD student and Ms Huang was advised that Dr Markovic was reluctant to allow her to continue with her research project unless she could provide a detailed plan of how she would complete a literature review of adequate standard and a clear work plan with adequate dates of how she would complete her research work. Professor Winder sent a letter confirming that Ms Huang should submit an updated literature review and research plan by the beginning of session 1 of 2002 so that they could be evaluated prior to enrolment for 2002.

    [39] CW19

    [40] CW18 & CW20

    [41] CW20

30. An annual research review meeting was scheduled for Ms Huang on 25 January 2002[42] which she did not attend[43]. On 30 January Ms Huang sent a medical certificate to Professor Winder saying that she was medically unfit to attend work for the period 22 to 30 January 2002 because of anxiety and chronic back pain[44]. Ms Huang subsequently spoke to Dr McIntosh about her candidacy[45].

    [42] Ex HH-S3

    [43] HH-S4

    [44] CW 21; HH-S6

    [45] HH- S7 – S9, S11, S12 & S14

31. It was suggested that Ms Huang enrol as an MSc candidate if she wished to continue in 2002[46].

    [46] CW20, CW22 & CW24

32. Dr Markovic had a number of meetings with Ms Huang in late January and February 2002 about her literature review and research plan[47]. She submitted a draft research plan in late February 2002[48] with the assistance of Ms Leonte and Ms Gardner. It was considered inadequate by Professor Winder[49] and she was asked to finalise the plan by 4 March so that it could be assessed. Ms Huang asked for various personal problems to be taken into account when assessing her progress[50].

    [47] CW27

    [48] CW23

    [49] CW25

    [50] CW26

33. Ms Huang did submit a final research plan which was assessed by both Professor Winder and Dr Markovic. She did not submit a revised literature review prior to the enrolment date for 2002. They both considered the plan to be inadequate[51]. Particular problems identified by Ms Huang’s supervisors were failure to provide a literature review of the necessary standard, a lack of depth of analysis, poor understanding and language problems. Dr Markovic recommended that she not be enrolled in further research study. Professor Winder advised Ms Huang that he would be recommending to the Higher Degree Committee of the Faculty that her candidature in the School’s research program be terminated forthwith.

    [51] CW27 & CW 28

34. Ms Huang consulted a range of people at the University concerning her candidature. These included Professor McLachlan (PVC Research) who was consulted from December 2001[52], Jonathan Hulme (Postgraduate Board) in November 2001, Ross Granger (Postgraduate Board) in September 2001[53], Diane Gardner (Grievance Officer, School of Safety Science) in late October 2001[54], the Student Counselling Service from 24 October 2001[55].

    [52] applicant’s affidavit annexure D47, D52, D53, D54, D56, D73, D80, D81 & D92

    [53] HH- U1

    [54] HH-DG

    [55] HH-U6

35. On 22 March 2002 Ms Huang raised an allegation of sexual harassment against her supervisors for the first time[56]. She was referred to the Equity and Diversity Unit and had a meeting with Ms Frank of that Unit on 25 March 2002.

    [56] Ms Frank’s affidavit, paragraphs2 & SF1

36. At that meeting she provided Ms Frank with a draft complaint addressed to Professor McLachlan[57]. Ms Frank kept detailed notes of her meeting with Ms Huang[58]. Ms Huang raised a lot of issues concerning her PhD candidature most of which related to academic grievances rather than unlawful discrimination. In response to a query from Ms Frank about why she did not change supervisors Ms Huang gave as one of her reasons ‘Chris Winder touched her thigh in 1999 (not repeated)’[59]. Ms Frank discussed different alternatives for lodging a complaint of sexual harassment with Ms Huang and provided her with information on unlawful discrimination[60]. Ms Huang advised her that she was not sure if she wanted to pursue the allegations, that she just wanted to get on with her PhD, that she was not clear of her standing and that she did not want to raise sexual harassment issues if she could stay on.

    [57] Ex HH-P4

    [58] SF2

    [59] SF2 p 3

    [60] Ms Frank’s affidavit paragraph 6 & SF2 p 6

37. Ms Huang had another meeting with Ms Frank on 2 April 2002 during which Ms Frank attempted to clarify her allegations of unlawful discrimination[61]. It was suggested that Ms Huang redraft her complaint to include all the facts as well as her feelings to support the allegations wherever possible. A meeting was arranged with Mr Hulme to discuss the possibility of Ms Huang continuing with her PhD on 10 April 2002[62]. A further meeting was held on 7 May 2002[63].

    [61] Ms Frank’s affidavit paragraph 7 & SF4

    [62] Ms Frank’s affidavit paragraph 8 & SF4

    [63] Ms Frank’s affidavit paragraph 15 & SF5

1. Ms Huang was given advice as to avenues available to her concerning her enrolment and her entitlement to appeal any decision of the Higher Degree Committee about her enrolment. Dr McIntosh provided a report dated 23 May 2002 and made submissions to the Higher Degree Committee which was due to meet on 11 June 2002 to consider Ms Huang’s enrolment status. Ms Frank advised Ms Huang that this Committee would not consider her complaint of unlawful discrimination[64].

   [64] Ms Frank’s affidavit paragraph 15

2. On 21 May 2002 Ms Huang informed Ms Frank that she was putting in a complaint[65]. Ms Huang wrote a letter of complaint to the University on 7 June 2002 which is the same document that was attached to her complaint to HREOC dated 11 July 2002.

   [65] Ms Frank’s affidavit paragraphs 16 – 19, SF6

3. The Higher Degree Committee determined on 11 June 2002 that Ms Huang show cause why her enrolment should not be cancelled in response to the School’s determination that her progress was unsatisfactory[66]. Ms Huang’s complaint of 7 June 2002 was considered as part of her show cause response. Ms Huang was given leave for session 1 of 2002[67]. On 16 July 2002 the Higher Degree Committee determined that Ms Huang’s enrolment as a PhD candidate should be cancelled[68].

   [66] Ex HH-ML-8

   [67] HH-U3 & U4

   [68] SF8; Ex Hh-ML-9

4. Following this decision the Assistant Registrar reviewed Ms Huang’s submissions under the University’s grievance policy. On 5 September 2002 she advised Ms Huang of the outcome of her review[69] which concluded that her progress in the PhD program was unsatisfactory and that the decision of the Higher Degree Committee was appropriate. The Assistant Registrar could find no evidence of unfair treatment and remarked that there seemed to be a clear mismatch between Ms Huang’s understanding of what constituted a research project of the magnitude and complexity required of a PhD candidate and that of the University. There also appeared to be a mismatch between Ms Huang’s expectations of how she could achieve a PhD when by her own admission she was experiencing difficulties in her personal life.

   [69] SF8

5. Ms Frank investigated Ms Huang’s allegations of unlawful discrimination and provided a report on the outcome to the Registrar[70]. Ms Huang was provided with a report on the outcome[71]. Ms Frank was unable to substantiate the majority of her complaints and did not find any pattern of systemic unlawful discrimination against Ms Huang. Although Dr Markovic denied making the comment alleged by Ms Huang it was recommended that he undergo counselling which he underwent.

   [70] SF7

   [71] SF 8 Attachment A

6. Ms Huang made allegations of plagiarism and fraud against Dr Markovic[72]. These allegations were also investigated by the University which found that her allegations were not supported[73]. In fact Ms Huang acknowledged during the investigation that the results of experimental work conducted by her were not used by Dr Markovic at all and a photograph used in an article published jointly by her and Dr Markovic had been taken by him[74].  However, the investigation found fault on the part of Dr Markovic as a supervisor and also found that he had breached the University’s code of conduct in failing to acknowledge the contribution of his students (including Ms Huang) to a poster he presented.  Professor McLachlan in her report also expressed serious concern about the level of research training undertaken in Dr Markovic’s laboratory.

   [72] Dr Markovic paragraph 35, BM23 – 26

   [73] HH-S32

   [74] BM26

7. Ms Huang exercised her right of appeal from the decision to cancel her PhD candidature. In October 2002 the Appeal Sub-Committee of the Academic Board upheld her appeal on the grounds that there was an error of fact relating to Ms Huang’s enrolment as presented to the Higher Degree Committee, that there was a lack of documentation of Ms Huang’s medical condition and the degree to which this had disrupted her research and that she may have received mixed signals as to her progress from the support that had been given by her supervisors for an APA scholarship[75].

   [75] applicant’s affidavit annexure J2

8. Ms Huang was asked by the Deputy President of the Academic Board on 10 March 2003 to consider whether her current situation was such that she could commit herself fully and unequivocally to the pursuit of her research and what supervision arrangements she envisaged and advise him of her response by 7 April 2003[76].

   [76] applicant’s affidavit annexure J1

9. Ms Huang has not sought to re-enrol at the University.

The evidence

1. Ms Huang relies upon her own voluminous affidavit material as well as affidavits by her mother and her sister.  Ms Huang also subpoenaed the following persons to appear to give oral evidence:

   ·   Dr Terry Kohler;

   ·   Dr Jagdeep Sachdev;

   ·   Dr Nicholas Harvey;

   ·   Mr Shamasuzzaman Uzzaman;

   ·   Ms Rola Azzi;

2. A number of other subpoenas prepared by Ms Huang were either not accepted or discharged at the interlocutory stage of the proceedings.

3. Ms Huang also subpoenaed a substantial volume of documents from various sources.  Some of those subpoenas were enforced but others were rejected or discharged.

4. Ms Huang continued to attempt to issue subpoenas until shortly before the commencement of the trial of this matter in February 2006 and continued to attempt to file affidavits during the trial.  Because Ms Huang had paid no regard to orders by me setting time limits for filing affidavits, I directed that no further documents be accepted from her for filing except by leave.

5. Ms Huang sought at the trial to rely upon the following documentary evidence which I received in whole or part:

Document Name	Date Filed	Received	Reason for Rejection
Information Sheet and 2 Letters of Termination with annexures	23 September 2004	Received
Affidavit 1 (+ amendment)	19 April 2005, 5 May 2005	Received in part Received	Submission / argumentative
Affidavit 2	29 April 2005	Not received	Submission/argumentative, interlocutory, not relevant
Affidavit 3 (+ amendments and exhibits)	5 May 2005, 30 November 2005, 6 December 2005, 30 January 2006, 2 February 2006	- Not rec’d - Only partly   relied on - Only partly   relied on - Only partly   relied on - Part rec’d	Submission/argumentative, superseded, repetitive
Affidavit 4 (+ amendment and exhibit)	12 May 2005, 16 May 2005	Received in part Received	Argumentative, not relevant
Affidavit 5 (+ amendment)	20 July 2005, 9 November 2005	Received Received
Affidavit 10	20 October 2005	Received in part	Repetitive
Affidavit 11 (+ amendment)	20 October 2005, 30 November 2005	Received Received
Affidavit 12  (+ amendment)	20 October 2005, 9 November 2005	Received Received
Affidavit 13	20 October 2005	Received in part	Unfairly prejudicial and embarrassing
Affidavit 14	20 October 2005	Received
Affidavit 15 (+ amendment)	27 October 2005 , 9 November 2005	Received Received
Affidavit 16	9 November 2005	Received
Affidavit 17	9 November 2005	Received
Affidavit 18	30 November 2005	Received in part	Unqualified opinion
Affidavit 19	30 November 2005	Not received	Repetitive
Affidavit 20	30 November 2005	Not received	Repetitive
Affidavit 21	30 November 2005	Received
Affidavit 22	30 November 2005	Received in part	Repetitive, argumentative
Affidavit 23	30 November 2005	Received in part	Not relevant
Affidavit	21 August 2003	Received in part	Repetitive
Affidavit	20 January 2004	Received in part	Correspondence received as evidence only of fact of correspondence
Affidavit	30 August 2004	Not received	Not relevant, interlocutory
Affidavit ( + amendments)	29 October 2004 13 February 2006 21 February 2006	Received in part Received	Not relevant
Affidavit	27 January 2005	Not received	Interlocutory
Affidavit	25 February 2005	Not received	Interlocutory
Affidavit	29 March 2005	Not received	Not relevant
Affidavit	24 June 2005	Not received	Interlocutory
Affidavit x 6	28 July 2005	a) Received b) Not rec’d c) Not rec’d d) Part rec’d e) Not rec’d f) Not rec’d	Repetitive, not relevant
Affidavit	4 August 2005	Received
Affidavit x 2	22 August 2005	a) Not rec’d b) Received	Interlocutory
Affidavit	29 August 2005	Received in part	Not Relevant
Affidavit	20 September 2005	Received in part	Not relevant, argumentative
Affidavit x 3	27 October 2005	a) Received b) Not rec’d c) Received	Interlocutory
Affidavit	9 November 2005	Received in part	Unfairly prejudicial
Affidavit x 5	21 November 2005	Not received	Repetitive, not relevant, argumentative, unfairly prejudicial
Affidavit	22 November 2005	Not received	Interlocutory
Affidavit x 5	30 November 2005	a) Not rec’d b) Not rec’d c) Part rec’d d) Not rec’d e) Not rec’d	Not relevant, interlocutory, submission / argumentative
Affidavit x 2	5 January 2006	a) Not rec’d b) Received	Interlocutory
Affidavit	11 January 2006	Not received	Interlocutory, submission / argumentative
Affidavit	20 January 2006	Not received	Interlocutory, not relevant
Affidavit – Queenie Chow	27 October 2005	Not received	Not relevant, interlocutory
Affidavit – Dr Murray Ullman	30 November 2005	Received in part	Not relevant
Affidavit – Dr Nicholas Harvey	2 December 2005	Received
Affidavit – Dr Jagdeep Sachdev	2 December 2005	Received
Affidavit – Dr King Chen	6 December 2005	Not received	Not relevant (one annexure separately tendered)
Affidavit – Yue Mei Li	13 February 2006	Received
Affidavit – Hong Hua Huang	13 February 2006	Received in part	Not relevant

1. I gave reasons for my evidentiary rulings excluding evidence of asserted victimisation[77].  Ms Huang unsuccessfully appealed against my evidentiary rulings[78].  However, in the light of the observations made by Lindgren J at [10] of his appeal judgment, on 5 June 2006 I provided Ms Huang with the opportunity to revisit my evidentiary rulings and to produce further evidence relevant to her two terminated complaints that had not previously been accepted.  In order to remove any doubt that it was before me as evidence, I marked as an exhibit[79] a bundle of documents relating to the termination of Ms Huang’s second complaint to HREOC.  I also received certain paragraphs of Ms Huang’s affidavits that I had previously rejected as irrelevant, which could be related to Ms Huang’s terminated complaints to HREOC that she may now characterise as a complaint of victimisation.

   [77] see Huang v University of New South Wales (No 2) [2006] FMCA 220

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

   [79] A10

2. The respondents rely upon:

   ·the affidavit of Dr Boban Markovic made on 13 January 2005 and filed on 14 January 2005, to which there are 26 annexures;

   ·the affidavit of Professor Christopher Winder made on 23 December 2004 and filed on 14 January 2005, to which there are 31 annexures; and

   ·the affidavit of Sybille Frank made on 10 January 2005 and filed on 14 January 2005, to which there are eight annexures, and her affidavit made on 6 February 2006, and filed on 10 February 2006.

   My summary of the evidence of witnesses is set out at Annexure A to this judgment. 

3. The evidence was completed with the tender of a number of additional documents by Ms Huang.  I accepted documents tendered which related in some way to the evidence of Ms Frank or which plainly had some bearing upon the issues in dispute between the parties and about which there was no doubt as to the authenticity or provenance of the documents.  I rejected the tender of additional documents by Ms Huang where the provenance of the documents or their authenticity was unknown or doubtful.

4. The final list of documents tendered was as follows:

   ·   A1     Medical Certificate dated 3 April 2001;

   ·   A2     Medical Certificate from Dr Chen dated 16 January 2001;

   ·A3    Prince of Wales Hospital Mental Health Assessment of Ms Huang dated 6   August 2003;

   ·   A4     Centrelink Medical Certificate dated 29 April 2003;

   ·   A5     Bundle of documents from Healthquest;

   ·   A6     Bundle of Receipts;

   ·   A7     Letter from Dr Ellis dated 19 May 2000;

   ·A8    Bundle of documents relating to issues of pain & physical injury;

   ·A9    Bundle of notes beginning with Royal Prince Alfred Hospital document;

   ·   A10  Notice of Termination dated 26 May 2004 & annexures;

   ·A11  Commencing with letter dated 21 August 2002 from UNSW re counselling consultations;

   ·   A12  “Report about my PhD Research”;

   ·   A13  Bundle of documents from Dennis & Co;

   ·   A14  Bundle of documents relating to Ms Huang’s damages;

   ·A15  Letter from Professor Cross to Professor Kennedy dated 7 July 1999;

   ·A16  Bundle of documents headed “Development of an In Vitro Toxicological Test Method…”;

   ·A17  Two documents headed “Case Summary” and “Case Conduct Form”;

   ·A18  Bundle of documents headed “Re: unfair treatment of my PhD research”;

   ·   A19  Two Training Certificates;

   ·   A20  Case summaries of Post Graduate Board of NSW;

   ·   A21  Bundle of documents headed “HH-U15”;

   ·   A22  Document headed “Hong’s Complaint”;

   ·A23  Bundle of emails re Ms Huang’s enrolment status all dated early 2002;

   ·   A24  Transcript of Ms Huang’s Academic Record as at 7 May 2002;

   ·   A25  File note taken by Ms Frank after the meeting on 7 May 2002;

   ·   A26  Bundle of Higher Degree Committee documents;

   ·   A27  Handwritten note of Ms Frank’s dated 5 August 2002;

   ·A28  Email to Professor Chris Winder from Jane Gatwood dated 8 August 2002;

   ·   A29  Handwritten file note of Ms Frank’s dated 21 August 2002;

   ·   A30  Email to Ms Frank from Jane Gatwood dated 21 August 2002;

   ·A31 (HH-HREOC-CF)    Student Discrimination & Harassment Policy – UNSW (attached to submission 7);

   ·A32 (HH-HREOC-CF) Letter to HREOC from Ms Huang & attachments (attached to submission 7);

   ·   R1    Letter to Dr Harvey from Ms Huang dated 9 December 2000;

   ·   R2    Record of interview dated 9 August 2002;

   ·   R3     Course withdrawal and leave application;

   ·R4    Document dated 10 March 2003 to Ms Huang from AH Dooley;

   ·R5    Two forms headed “confirmation of research details” & “report on progress of research student”.

5. At the suggestion of Ms Oakley, I gave leave for Ms Huang to file and serve by 31 October 2006 a single affidavit of no more than 50 pages giving evidence in reply to the oral evidence of the respondents’ witnesses presented at the hearing.  I took this action noting the length of the hearing and the extensive nature of the oral evidence adduced.  Ms Huang was unable to comply with the deadline due to illness and stress and was granted various extensions of time.  The affidavit was eventually filed on 29 May 2007 and comprises 109 pages, with an eight page calculation of losses claimed attached (the claim was for $13,814,397.47) and a further 156 pages of exhibits.  I nevertheless received those documents into evidence.  Ms Huang sought and was granted the opportunity to file an amended affidavit correcting errors she had identified in the affidavit in reply.  That affidavit was filed on 23 November 2007 and I received it.  A revised table of claimed losses is annexed to it which details claimed quantifiable damages of $27,105,712.00 (my own calculation from the same table is $9,179,731.80) plus a claim for future unquantified damages.

Submissions

1. I invited written submissions from the parties. Pursuant to s.51 of the Federal Magistrates Act 1999 (Cth) I directed that written submissions be limited to 50 pages. Ms Huang proved unwilling or unable to comply with that direction.

2. Ms Huang’s written submissions were filed on 29 May 2007 and comprise 395 pages.  Relevantly, she makes the following points:

   a)she details her background, her traditional education and Chinese culture and her distinctive personality as well as her lack of knowledge of legal matters;

   b)she seeks to explain her long period of silence before raising her complaints of sexual harassment and discrimination by reference to her personality and mental state;

   c)she details what she sees as a strong academic background with great prospects for the future prior to the events she alleges;

   d)she details her research work in 1999;

   e)she details her allegations of unlawful sexual harassment, discrimination and victimisation as well as plagiarism against Dr Markovic and her allegations of unlawful sexual harassment, discrimination and victimisation against Professor Winder;

   f)she details her asserted disability and what she describes as “ongoing victimisation” against her by various staff and other PhD students and the alleged adverse impact upon her mental state;

   g)she details what she describes as “victimisation, discrimination and contempt of court” in the course of the present legal proceedings;

   h)she details her PhD candidature and her ultimate success in challenging the decision to cancel her enrolment and what she describes as the first respondent’s unwillingness to implement that decision; and

   i)she details what she describes as her severe and permanent mental injuries and her other damages and loss.

3. The respondents’ submissions were filed on 3 August 2007.  Ms Oakley relevantly submits as follows:

   a)the only allegation of sexual harassment made against Professor Winder is a relatively small matter of touching Ms Huang’s hip while passing in a corridor some time in 1999 and the allegation has not been proven, either as a fact or as establishing sexual harassment.  Ms Huang’s evidence is unreliable and has been embellished over time.  Her claims are uncorroborated and are inconsistent with the known facts;

   b)the two allegations of sexual harassment against Dr Markovic have not been proven either as facts or as establishing sexual harassment.  The first allegation relating to training of students in relation to laboratory safety in 1999 could not amount to sexual harassment even if the asserted facts are in substance true.  Dr Markovic denies any sexual harassment of Ms Huang and his evidence should be accepted.  Even if Dr Markovic made a comment about Ms Huang’s marital status (which is not accepted) it does not constitute sexual harassment;

   c)it is not accepted that a complaint of racial discrimination is before the Court, but if it is it is misconceived.  Ms Huang was not treated less favourably on account of anything related to her race or ethnic background.  The simple facts are that she had difficulty working to the standard expected of her but took advantage of her right to challenge the adverse decision to exclude her from the PhD programme and was successful;

   d)Ms Huang’s allegations of disability discrimination are unclear and it is doubtful that the University was aware that Ms Huang suffered from a disability.  In any event, she was not treated less favourably than any comparable PhD candidate and in fact was afforded special accommodations;

   e)it is not conceded that a complaint of victimisation was terminated by HREOC but in any event Ms Huang has not identified the detriment she alleges she was subjected to.  There is no evidence of Ms Huang raising her allegations of sexual harassment prior to 22 March 2002;

   f)Ms Huang has contrived to draw a link between her allegations of sexual harassment in 1999 and adverse decisions made concerning her progress in her PhD programme.  Ms Huang was in trouble already in 1999 in the conduct of her PhD and so her difficulties were evident long before the incidents that she alleges.  Ms Huang has made baseless allegations against witnesses and has sought to draw sinister conclusions from benign events.  She is not a credible witness and her uncorroborated evidence should not be accepted.

1. Ms Huang filed written submissions in reply on 3 October 2007.  In those submissions, which comprise 147 pages, Ms Huang takes issue (in great detail) with the content of the respondents’ submissions.  I permitted Ms Huang to file a summary of both of her submissions, which she did on 23 November 2007.  Unfortunately, that document purports to raise new issues and is expressed in emotional language.  I have disregarded allegations that were not the subject of evidence or earlier submissions.

2. Ms Huang sought and was granted the opportunity to amend her submissions in reply to correct errors.  That document was filed on 23 November 2007.  Apart from amending her submissions in reply, Ms Huang makes further allegations against the respondents in highly emotional terms.  I have disregarded those allegations, which extend well beyond the parameters of the complaints the subject of these proceedings.

The legislation

1. The issues to be determined in these proceedings are issues of unlawful discrimination. I set out at Annexure B to this judgment the relevant provisions of the HREOC Act, the SDA, DDA and the RDA.

Reasoning

1. Judges and Magistrates are required from time to time to deal with difficult cases.  This has been a particularly difficult case.  That is not because it raises difficult legal issues, or even because the relevant facts in dispute are particularly complex.  This case has proven particularly difficult because the applicant (Ms Huang), although competent to conduct the proceedings, struggles with mental problems that are detailed in the evidence.  It has been impossible to keep the proceedings within reasonable bounds because Ms Huang has been unwilling, or unable, to comply with the Court’s directions for the conduct of the proceedings.  The proceedings became exceptionally protracted, with far more material filed than was necessary or useful.  Further, Ms Huang’s mental state appears to have deteriorated over time, and the number and wildness of her allegations has also increased over time.  Regrettably, the litigation process itself has probably been harmful to her.  I am mindful of that, and have sympathy for her plight.  She has suffered a great disappointment in her life which has affected her deeply.  She has, however, chosen to commence and pursue her complaint to HREOC and these proceedings.  She has made allegations against the respondents and others which, if untrue, must be very hurtful to those she has accused.  The task before the Court is to identify, in the mass of material, what the real issues are and to deal with them.  In that, I have been assisted greatly by the submissions made by counsel for the respondents, which I am grateful for.

2. The Court’s jurisdiction under the HREOC Act is limited to a complaint to HREOC that has been terminated. Ms Huang’s first complaint to HREOC is dated 11 July 2002[80].  The complaint form referred to a letter to Crystal Condous, UNSW dated 7 June 2002[81]. That letter gives details of a number of grievances.  The only mention of unlawful discrimination is one of sexual harassment. The details of this allegation are set out in paragraph 1.3.1 of a document entitled ‘Report of My Research in the School of Safety Science University of New South Wales’.

   [80] Ex HH- HREOC-1 & 1a

   [81] Ex HH-HREOC-1

3. The complaints of sexual harassment were:

   a)that in 1999 Dr Markovic when speaking to students in the laboratory raised both his hands ‘likely to catch me’ (paragraph 1.3.1.1);

   b)that in about September 2001 while Ms Huang was training with two other students Dr Markovic said ‘she has not been married but she needs sex. She is over 30 and near 40 but still has pimples in her face’ (paragraph 1.3.1.2);

   c)against the fourth respondent (paragraph 1.3.1.2);

   d)that in the second semester of 1999 Professor Winder touched her hip in a passageway when a door opened (paragraph 1.4.1.7).

4. There was also an assertion that Ms Huang was discriminated against on the grounds of her English proficiency (paragraph 1.5 dot point 10 first sentence). This was not considered by HREOC to be a complaint of racial discrimination[82] and Ms Huang was notified on 14 August 2002 that it was not able to inquire into that aspect of the matter.  Ms Huang was also requested to provide further details of her complaint of sexual harassment.

   [82] HH-HREOC-2

5. Ms Huang replied to HREOC on 3 September 2002. She made broad‑ranging allegations of discrimination but these were not expressed to be allegations of unlawful discrimination. She also asserted that her English proficiency constituted a disability. In paragraph 6 Ms Huang alleged that one of the reasons there were problems with her 2002 re-enrolment was unhappiness from the incidents of sexual harassment that occurred during her PhD candidacy. Assertions were made under the heading ‘Victimisation’ (paragraph 12) but do not give details of any breach of s.94(2) of the SDA, s.42 of the DDA or s.27(2) of the RDA.

6. On 28 July 2003 HREOC terminated the complaints outlined in paragraph 65(a) and (d) above pursuant to s.46PH(1)(b) of the HREOC Act and the complaint outlined in paragraph 65(b) above pursuant to s.46PH(1)(i) of the HREOC Act.

7. Ms Huang filed an application pursuant to s.46PO on 21 August 2003.

8. On 2 April 2004 Ms Huang lodged a second complaint with HREOC[83]. In that complaint Ms Huang alleged that she had been treated less favourably because of her race and that it was assumed that her English was too poor to complete a PhD. In support of this allegation she referred to a letter from Professor Winder dated 4 March 2002[84].

   [83] annexure to application SZ2124/2004 filed 12 July 2004; Ex A10 & annexure S1

   [84] Affidavit of C Winder, annexure CW 28

9. Ms Huang also alleged that she was treated less favourably because of a disability. She alleged that she was very stressed, developed a nervous disorder, was anxious and suffered from depression. She alleged that because of physical injuries and personal difficulties (stress) she was forced to take one year off and come back part time. In support of this allegation she referred to paragraphs 2 – 3 of Professor Winder’s letter of 4 March 2002 and her letter dated 13 September 2001[85].

   [85] Affidavit of C Winder, annexure CW 9

10. This complaint was terminated on 26 May 2004 pursuant to s.46PH(1)(b). Ms Huang filed a further application on 12 July 2004.

11. The applications were heard together.

The issues

1. I accept the respondents’ submission that the allegations of unlawful discrimination that arise from the two terminated complaints appear therefore to be the allegations of sexual harassment against Professor Winder and Dr Markovic made in the first complaint, an allegation of racial discrimination based on English proficiency and a complaint that Ms Huang was treated in some unspecified manner less favourably on the ground of a disability. Although HREOC did not identify a complaint of victimisation it is possible that Ms Huang raised the issue of victimisation in her first complaint and I have considered that issue.

2. The very large number of additional allegations against the first, second and third respondents are not relevant to the issues before the Court, with the exception of those dealt with in these reasons.

3. I accept also the respondents’ submission that the issues for determination are:

   a)whether Ms Huang has proved the factual matters that form the basis of her terminated complaints of unlawful discrimination against the first, second and third respondents;

   b)if the Court is satisfied that the factual allegations are made out, whether those matters constitute unlawful discrimination within the meaning of s.3 of the HREOC Act;

   c)if the Court determines that any of the first, second or third respondents is guilty of unlawful discrimination of Ms Huang what remedy, if any, is appropriate.

The alleged sexual harassment

1. Ms Huang did not allege to HREOC that either Dr Markovic or Professor Winder made an unwelcome sexual advance or requested sexual favours from her. Her allegations should be seen as an allegation that each of them engaged in other unwelcome conduct of a sexual nature in breach of s.28A(1)(b) of the SDA.

2. I accept the respondents’ submissions concerning the legal principles to be applied.  In Cate v International Flavours & Fragrances (Aust) Pty Ltd [2007] FMCA 36 at [77] McInnis FM approved the interpretation of the words ‘sexual nature’ in two Victorian cases.

3. The second of those was AB v Adult Multicultural Education Services [2006] VCAT 1862 where Judge Davis said:

   18.It is clear from section 85 of the Act that "conduct of a sexual nature" is confined to words or conduct of a sexualhttp:// - disp37#disp37 nature which can be characterised as sexual or sexually-related. The term has a broad scope and essentially relates to matters which have to do with sexual activity or attraction or relationships. It may refer to physical activities such as touching, pinching or patting in a sexual manner, or may refer to other words or conduct, such as commenting on parts of a person’s body regarded as having a sexual function, requesting sexual intercourse, explicit language, indecent exposure, offensive telephone calls, offensive hand or body gestures. Whether conduct or a statement is "sexual" may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time

   19.Sexual harassment in the workplace is likely to be covert, and generally speaking, occurs when a person is subjected to unsolicited and unwelcome sexual conduct by another where that person knows or ought to have known that the conduct was unwelcome. The test to be applied to determine whether conduct is of a sexual nature is an objective one and does not take into account the motivation of the perpetrator or the individual. Rather, regard must be had to all the circumstances.

4. In that case Judge Davis referred to his own earlier decision of Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 122 (Te Papa):

   7. While section 85(2) defines conduct of a sexual nature inclusively and not exhaustively, it is clear from the terms of the section that it is confined to acts or statements of a sexual nature related to sexual matters or which can be characterised as sexual or as sexually-related. The term relates to matters which have to do with sexual activity or attraction or relationships. Within this broad category, the term may refer to many things, including: requests for sexual intercourse, love letters, invitations to date, comments about parts of the body which are generally regarded as having a sexual function or about a person’s sex life, physical contact such as patting, pinching or touching in a sexual way, indecent exposure, offensive telephone calls, offensive hand or body gestures. Whether conduct or a statement is "sexual" may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time.

5. In Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 the Full Federal Court expressed the view that s.28(3) of the SDA[86] was capable of including a single incident.  However, Wilcox J also said (at 531):

   [86] now replaced by s.28A

   Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word “harass” implies the installation of fear or the infliction of damage, as is indicated by the definition of the term in the Macquarie Dictionary: 1. to trouble by repeated attacks, incursions etc. as in war or hostilities; harry; raid; 2. to disturb persistently; torment, as with troubles, cares, etc.”

Sexual Harassment (Professor Winder)

1. The only allegation of sexual harassment made to HREOC against Professor Winder is that he touched Ms Huang’s hip while passing her in a corridor in the second semester of 1999. I accept that an incident occurred but I do not accept that it constitutes sexual harassment within the meaning of s.28A of the SDA.

2. Professor Winder’s evidence does not resolve the issue.  He has no recollection of the incident. He denies deliberately touching Ms Huang or touching her with sexual intent[87]. He had no recollection of any physical contact with Ms Huang in 1999 or 2000[88].

   [87] Professor Winder’s affidavit para 30; Tr 3/8/06 p 267 – 275.15

   [88] Tr 3/8/06 p 275.15

3. I have several concerns about Ms Huang’s evidence concerning the incident, which are dealt with in the respondents’ submissions.  First, Ms Huang waited for more than two years before mentioning the incident. The incident is alleged to have occurred in 1999 but Ms Huang said nothing about it until 22 March 2002. When she did mention it she was promptly referred to the University’s Equity and Diversity Unit[89].

   [89] Ms Frank’s affidavit, para 2 & SF1

4. Ms Huang sought to explain the delay in reporting her allegation by her ignorance of discrimination laws but she brought the document containing the allegations of sexual harassment with her to the meeting with Ms Frank on 25 March 2002[90].  A copy of the document that she provided to Ms Frank is HH-P4 and an earlier draft is Ex P2.  Ms Frank provided copies of the University’s policies on harassment and discrimination grievances and general information on these matters to Ms Huang at that meeting[91].

   [90] Ms Frank’s affidavit para 2

   [91] Ms Frank affidavit para 6

5. The allegation was made shortly after Professor Winder had informed Ms Huang on 4 March 2002 that he would be recommending to the Higher Degrees Committee that her PhD candidature be terminated because of a failure to make academic progress[92].  The timing was not coincidental.  I accept the respondents’ submission that the allegation was part of Ms Huang’s efforts to be re-admitted to the PhD programme.

   [92] CW28

6. Secondly, Ms Huang has changed and embellished her account of the incident over time. Her initial allegation in 2002 was that ‘one day when I passed the passage from the printing room of the school he touched my hip’[93].  In her 29 October 2004 affidavit she deposed that ‘he stretched out his right arm towards me and touched me on the hip.’[94].  In her oral evidence Ms Huang said that Professor Winder had caressed her[95].  Her submissions allege ‘affectionate stroking’ and give further details[96] but such detailed recollection is inconsistent with Ms Huang’s oral evidence that she did not see Professor’s Winder’s hand[97].

   [93] HH-P2 & P4; Ms Frank’s affidavit annex SF2; HH-HREOC- 1a report p 15

   [94] para 35

   [95] Tr 14/3/06 p 66

   [96] paras 585 – 595

   [97] Tr 14/3/06 p 66

7. Thirdly, the timing of the incident is uncertain.  Ms Huang only recalled that the incident was in late semester two of 1999 after being told in Ms Frank’s report[98] that Professor Winder was overseas for much of semester 2 in 1999.

   [98] Ms Frank’s affidavit SF8

8. I accept that there was some physical contact between Professor Winder and Ms Huang as they passed each other in the corridor in late 1999 but there is nothing reliable to establish that the incident complained of constituted sexual harassment within the meaning of s.28A of the SDA. I find that, in all probability, the contact that occurred between Professor Winder and Ms Huang was accidental and non sexual as they passed in the corridor.

9. I also accept the respondents’ submission that Ms Huang could give no reasonable basis for her allegation that the incident constituted sexual harassment. Relations between Ms Huang and Professor Winder both before and after the alleged incident were confined to educational matters. Ms Huang conceded that Professor Winder had not engaged in conduct of a sexual nature apart from the single alleged incident.  No discomfort is apparent on Ms Huang’s part in her dealings with Professor Winder after the alleged incident. He continued as her co‑supervisor. She asked him to do her favours. She complained to him when Dr Markovic did not accede to her requests. Examples include her requests to Professor Winder to provide her with work when Dr Markovic had told her that none was available[99], that he write to Centrelink to overcome difficulties with her unemployment benefit[100], that he provide her with a new computer[101] and that he authorise her attendance at short courses without payment[102].

   [99] Professor Winder’s affidavit, CW1

   [100] CW3, CW4

   [101] CW6

   [102] CW14

10. I reject the allegation of sexual harassment against Professor Winder. 

Sexual Harassment (Dr Markovic)

1. I accept the respondents’ submission that there are two allegations of sexual harassment against Dr Markovic before the Court. The first allegation is that in 1999 when he was training a group of students he raised both his hands ‘with lustfully laughing’ and moved towards Ms Huang with his arms outstretched[103].

   [103] Applicant’s affidavit 29/10/04 para 55; Tr 15/3/06 p 115 - 123

2. It is not disputed that Dr Markovic trained groups of students in laboratory safety measures in late 1999, that Ms Huang attended at least one such session or that he spoke of the correct disposal of broken glass. He also recalled Ms Huang asking a question at a training session[104]. However, Dr Markovic denies laughing lustfully and denies that he unlawfully discriminated against Ms Huang or that he sexually harassed her. None of the students present gave evidence.

   [104] Tr 2/8/06 p 172.10 – 174.6, p 181.16 – 182.9, 185.15 - .30

3. Once again, I have concerns about Ms Huang’s evidence concerning this alleged incident.  First, she has embellished this alleged incident over time. For the first time during cross examination as to why she regarded the incident as sexual harassment she asserted that Dr Markovic said as he raised his hands ‘I’ll kill you’[105] (or ‘I would kill you’).  This is not an allegation she had made previously.

   [105] Tr 15-3-06 p 115 - 123

4. Secondly, Ms Huang conceded that Dr Markovic had not engaged in any conduct that indicated a sexual interest in her[106].  In all probability, what happened was that, during a laboratory safety training session in 1999, Ms Huang asked a question, possibly about the correct disposal of broken glass.  Dr Markovic was concerned about Ms Huang’s understanding of laboratory procedures and found the question amusing.  He laughed and made some kind of grasping or throttling gesture with his hands, perhaps wishing to indicate the dire consequences of destruction of valuable equipment.  He may also have said something to emphasise the point.  It was intended as a joke and was not sexual in nature.  The conduct does not come within ss.28A(1)(a) or (b).

   [106] Tr 15/3/06 p 122.25

5. Ms Huang also alleges that, some time in late August or September 2001, Dr Markovic made a remark about her marital status. Dr Markovic denies making the remark. Ms Huang alleged that Mr Uzzaman and another student were present when the remark was made.

6. Mr Uzzaman failed to corroborate the allegation.  He did not recall such a comment being made[107]. He denied making such a comment himself[108] and had no recollection of conversations of a sexual nature[109].

   [107] Tr 8.24 - .41

   [108] Tr p11.1 – 12.46

   [109] Ex HH-P14

7. Ms Huang’s asserts in her submissions that Dr Markovic in meetings with Ms Frank had ‘twice conceded he was engaged in making the sexual comments about me with Mr Shamasuzzaman Uzaman’.  That is not supported by the evidence. Exs HH-P12 and P20 in fact reveal that Dr Markovic was adamant in his denial about making such a comment.

8. I accept Dr Markovic’s denial that he said anything about a need for sex on Ms Huang’s part. I prefer his evidence and the documentary record to Ms Huang’s evidence. Further, both Mr Uzzaman and Mr Abayawickrama, who Ms Huang alleges were present, deny that Dr Markovic said anything of this nature[110].

   [110] Ex HH-P14

9. In that document[111] Mr Abayawickrama did, however, provide some support for Ms Huang’s allegation that Dr Markovic made a comment about her marital status.  He said that Dr Markovic made a comment that Mr Huang got angry because she was over 30 and not married. Mr Abayawickrama, who lives in Sri Lanka, was not available to give evidence at the hearing and his recollection could not be tested.

   [111] his email response to Ms Frank’s inquiry about the alleged comment

1. I find that, on the balance of probabilities, Dr Markovic did make a comment about Ms Huang’s age and martial status.  The documentary record provides some support for the allegation.  Further, in giving oral evidence, Dr Markovic was somewhat brusque and insensitive.  Ms Frank’s investigation also supported the allegation and Dr Markovic was required to undergo counselling.  The remark was offensive and the remedy appropriate.

2. However, I accept the respondents’ submission that the comment does not constitute sexual harassment within the meaning of s.28A of the SDA. It was not conduct of a sexual nature. It did not pertain to sexual activity or attraction or relationships. Such a remark does not come within the sexual harassment contemplated by the Federal Court in Hall v A & A Sheiban.

3. I reject the allegations of sexual harassment against Dr Markovic.

4. There is nothing to support any other alleged act of sex discrimination under the SDA.

Racial discrimination

1. Ms Huang alleges that both Professor Winder and Dr Markovic discriminated against her because they assumed that her English was too poor to complete a PhD and that Ms Huang’s candidature was cancelled on that basis. While it is not clear how Ms Huang alleges such a view would constitute unlawful discrimination in breach of s.9, in oral argument Ms Huang agreed with me that the allegation is one of indirect racial discrimination, apparently on the basis that Ms Huang was required to read and write English in the PhD programme.

2. I agree substantially with the respondents’ submissions on this issue.  I incorporate below some of those submissions with amendments.  The first problem with this claim is that Ms Huang’s difficulties as seen by her supervisors had more to do with her lack of understanding of what was expected of her, rather than language difficulties.

3. In her submissions Ms Huang cites letters commenting on her first attempt at a literature review. These letters express her supervisors’ views about the work she had submitted. The primary focus is the academic content although it is noted that the work contains an unacceptable number of language errors.

4. In cross-examination Professor Winder expressed the view that the standard of Ms Huang’s submitted work was embarrassing[112]. He said that her analysis of documents was poor and that she demonstrated no synthetic or critical skills. While there were an unacceptable number of language errors he regarded that as something that could be fixed[113].

   [112] Tr 4/8/06 p 66.5

   [113] Tr 4/8/06 p 81.40 – 82.10

5. Ms Huang was invited to revise her draft. She presumably accepted the comments of her supervisors because she revised and re-submitted the literature review on 30 November 2001. In doing so Ms Huang acknowledged that her revised work was subject to limitations and expressed appreciation for the comments provided on her earlier draft. Unfortunately the revised literature review did not meet the standard required for a PhD candidate either and Ms Huang did not take up the invitation to resubmit the work for further review at the commencement of semester 1 in 2002.

6. Professor Winder and Dr Markovic did not in any event cancel her candidature. The Higher Degree Committee made that decision after a show cause procedure in which Ms Huang made submissions. She then exercised her right of appeal in respect of that decision.

7. The views expressed by Professor Winder and Dr Markovic about the quality of Ms Huang’s submitted work have not been successfully challenged. The Appeal Sub-Committee of the Academic Board found when determining her appeal[114]:

   [114] Ex HH-VU p 5

   It is clear that Ms Huang found the targets to be challenging and although she did attempt to meet these challenges we hold a similar view to her supervisor and co-supervisor on the inadequacy of her submission, albeit that there is some evidence of improvement in each successive submission.

8. I accept that Ms Huang was required by the respondents to work in English.  I am not persuaded that Ms Huang was unable to comply with that requirement.  Neither am I satisfied that the requirement was unreasonable.  Ms Huang was attempting a higher degree at an Australian university where English is the normal language of instruction and submission.  The claim of racial discrimination fails.

Disability discrimination

1. I agree with the respondents’ submissions that Ms Huang’s allegation of discrimination on the ground of disability is unclear. She appears to allege direct discrimination on the ground of disability and the asserted disability appears to be her mental problems.  Ms Huang, during argument, also referred to a claim of indirect disability discrimination but it has not been developed.  I accept from the evidence of Dr Harvey, Dr Sachdev and Dr Dodwell, as well as the report of Dr Kohler, that Ms Huang suffers from the disabilities of obsessive/compulsive disorder, depression and anxiety, with an underlying vulnerable personality, including obsessive, compulsive personality traits.  She also suffers from tritilmania.  There is an immediate problem for Ms Huang’s case against the respondents because it is central to her allegations that the respondents caused her disabilities, not that they acted as they did because of them.  If the disabilities did not exist at the time of the respondents’ conduct complained of, and were not then imputed to her, there could be no disability discrimination based on them.

2. I accept the respondents’ submission that it is doubtful that the University was aware that Ms Huang suffered from a disability within the meaning of the DDA in 2001. It is apparent that Ms Huang did not bring her disabilities to the attention of the University in 2001. The reason she gave for the change from full time enrolment to part-time that year was because of Centrelink requirements concerning her unemployment benefit[115]. She did not indicate her part time enrolment had any connection with any health issue or disability.

   [115] Dr Markovic’s affidavit annex BM13

3. Although Ms Huang from time to time complained of lack of concentration and other health issues she did not at any stage indicate that she had an ongoing disability. Whenever she complained of stress it was suggested that she consult the Counselling Service. She did not take up this suggestion until 24 October 2001[116].

   [116] Ex A11

4. She did obtain a medical certificate dated 18 June 2001[117] and may have provided it to her supervisors but it states that she was unable to attend school on 18 June 2001 and does not indicate any continuing problem.

   [117] Ex HH-U

5. I also accept the respondents’ submission that it is clear from the evidence that Ms Huang was not treated less favourably than any other PhD candidate. In fact, the accommodation she was afforded such as extensions of time for submitting work probably constituted more favourable treatment than was given to other candidates such as Ms Azzi[118].

   [118] Tr 14/2/06 p 24 -27

6. On the other hand, the decision of the Appeal Sub Committee of the University’s academic board recognised that there was a lack of documentation of Ms Huang’s medical condition and its impact upon her research.  This confirms both a lack of knowledge by the University and Ms Huang’s supervisors of her disability and a probable failure of administration.  The University owes a duty of care to its students.  It is beyond the scope of these proceedings but I am inclined to doubt that the University met its duty in the case of Ms Huang.  The seriousness of her condition could, and probably should, have been detected and dealt with earlier and more efficiently.

7. I find the claim of disability discrimination unproven.

Victimisation

1. I accept and adopt, subject to my following observations, the respondents’ submissions on this issue. Section 8 of the SDA and s.10 of the DDA do not apply to victimisation. One or more of the matters referred to in s.94(2) of the SDA must be a ‘substantial or operative’ factor in the detriment to which Ms Huang is subjected or threatened with (Obieta v NSW Dept of Education & Training [2007] FCA 86 at [240]; Damiano and Another v Wilkinson and Another [2004] FMCA 891 at [22]; Bailey v ANU (1995) EOC 92-744).

2. The respondents do not concede that a complaint of victimisation was terminated by HREOC. The word ‘victimisation’ was used by Ms Huang in her correspondence with HREOC and I have proceeded on the basis that I should consider the claim of victimisation. However, I am not persuaded that the factual matters referred to in connection with that word constitute victimisation within the meaning of the SDA, the DDA or the RDA.

3. Ms Huang has neither identified the detriment she alleges she was subjected to, nor the act referred to in s.94(2)(a) to (g) of the SDA that she took or proposed taking, nor the knowledge the first, second and third respondents had concerning those acts, nor the connection between any of those acts and the detriment alleged. Ms Huang has not identified evidence of those matters either.

4. I accept from the evidence that Ms Huang first raised her allegations of sexual harassment at her meeting with Ms Nabke-Hatton on 22 March 2002. The first, second and third respondents did not know of her allegations of unlawful discrimination before that date. There is no evidence that Ms Huang ever raised any assertion of unlawful discrimination before that time. As her supervisors had already told her that they would not be supporting her re-enrolment there is no question of unlawful victimisation by them.

5. The University initially cancelled Ms Huang’s enrolment and then changed its mind following the appeal process.  Ms Huang’s allegations of discrimination and harassment were considered as part of that decision making and appeal process but do not appear to have been a factor bearing on the decisions that were taken.

6. I reject the allegation of victimisation.

Other matters

1. Counsel for the respondents notes in her submissions the following matters.  Ms Huang has attempted to suggest in these proceedings that there is some connection between the incidents of sexual harassment that she alleges in 1999 and the requirement that she submit a literature review and research proposal. This was not an allegation that she made to HREOC.

2. It is apparent from the evidence that Ms Huang had not made any significant progress towards her PhD in 1999. In that year she had a scholarship[119], the support of her supervisors and was a full time student. The PhD conditions required her to demonstrate progress[120]. She was aware of the necessity to prepare a literature review and research plan[121] but had made little or no progress with that work by the end of 1999. That lack of progress would have been apparent to her supervisors had Ms Huang undergone a review in 1999. No such review was conducted that year possibly because Ms Huang was suffering from the effect of a slip and fall accident. She did however undergo an informal review before her re-enrolment in 2001[122] and a formal review in March 2001[123]. Both reviews established her lack of progress.

   [119] Dr Markovic BM 6, E15

   [120] BM7

   [121] Dr Markovic, E4, E18

   [122] BM8

   [123] BM18

3. Ms Huang’s inadequacies as a PhD candidate were evident before the incidents she alleges. Despite encouragement by her supervisors, extensions of time for the submission of work, assistance of Faculty staff, commentary on her draft work and the invitation to re-submit work she was unable to demonstrate to her supervisors that she could realise the potential  they thought she had.

4. That outcome was undoubtedly disappointing for Ms Huang and for her supervisors. The fact is, however, that the respondents are not responsible for Ms Huang’s failure.  The causes for that failure were personal to her.  It is most unfortunate that Ms Huang has demonstrated a preparedness to make baseless accusations against people who had attempted to help her (whether effectively or not) rather than accept her own failure and its causes.  Those accusations include allegations of fraud and plagiarism against Dr Markovic.  That is not to say that Dr Markovic was not at fault.  Professor McLachlan’s report found fault, although not fraud or plagiarism.  The accusations were properly considered and dealt with by the University, and no further consideration by me is necessary.

5. The application as against the first three respondents will be dismissed with costs.

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

Associate: 

Date:  11 February 2008

ANNEXURE A

Shamasuzzaman Uzzaman

1. Mr Uzzaman was a contemporary student with Ms Huang at the University.  She approached him in 2004 and 2005 to seek his assistance with her legal proceedings.  He indicated that he did not wish to become involved and declined to co-operate.  He was subpoenaed by Ms Huang to give evidence.  Ms Huang sought Mr Uzzaman’s corroboration of her allegations against Dr Markovic concerning comments alleged to have been made by him in 2001.  Mr Uzzaman failed to provide that corroboration.  He said that he could not recall details of any conversations between him and Ms Huang or Dr Markovic and he knew nothing of any discussions between Sybille Frank and Professor Winder and Dr Markovic.  Neither could he recall any relevant conversation with Ms Azzi. 

Dr Nicholas Harvey

1. Dr Harvey produced a brief affidavit annexing his medical records concerning Ms Huang.  He was subpoenaed to give evidence in relation to his records.  I confirmed that he was qualified to give opinion evidence concerning his treatment of Ms Huang as a general practitioner. 

2. Dr Harvey said that he had been treating Ms Huang from 14 August 1998 until the present but he had not done so exclusively.  Ms Huang had, from time to time, consulted other doctors at the same medical practice in Marrickville.  Dr Harvey said that he treated Ms Huang for injuries following a car accident in 1998 and following a fall in 1999 when she injured her hip.  She reported pain in her hip and leg and back.  On 12 December 2000 Dr Harvey diagnosed a reactive anxiety disorder which worsened over time and became associated with depression.

3. Dr Harvey reported that on 11 November 2000 he had a long consultation with Ms Huang in which she reported having trouble with her academic research following the accident in 1999.  In 2001 she reported suffering insomnia and poor concentration.  Dr Harvey diagnosed anxiety and depression and an obsessive compulsive disorder.  Ms Huang reported obsessive checking activities.  On 25 May 2001 Dr Harvey prescribed anti-depressants.  He said that he had prescribed a number of different anti-depressant drugs since but they did not appear to be efficacious.  Ms Huang reported not being satisfied with them and was non compliant with the medication.

4. Dr Harvey also stated that he had diagnosed Ms Huang as suffering from tritrilmania (an obsessive grabbing of the hair at the scalp) which is untreatable. 

5. Dr Harvey had not referred Ms Huang to any other specialists.

6. I asked Dr Harvey whether he had had any dealings with the University concerning Ms Huang.  He recalled giving some certificates which were expressly related to unfitness to work but which also might have extended to unfitness to attend university studies. 

7. Dr Harvey was asked about the cause of Ms Huang’s anxiety condition.  He thought it may have stemmed from her hip injury.  Ms Huang had suffered, or reported pain, over a long period for which there was no physical cause. 

8. Under cross-examination Dr Harvey said that he had no record of any sexual harassment allegation being made to him in 1999 or 2000.  He said that his first note of any complaint by Ms Huang about trouble with her studies was on 11 December 2000. 

9. Under re-examination Dr Harvey stated that he did note Ms Huang making a complaint concerning her academic supervisor on 3 April 2001 in relation to the academic demands made of her.  He further noted that Ms Huang made an allegation of sexual harassment to him on 25 November 2002.  He stated that according to his notes Ms Huang began to develop an obsessive compulsive disorder about 30 July 2002. 

Yue Mei Li

1. Ms Yue is Ms Huang’s mother.  She gave evidence with the assistance of a Cantonese interpreter.  I satisfied myself that her affidavit, which had been prepared in English without a translator’s certificate, had been read to her and that she understood and adopted it. 

2. Ms Yue relevantly deposes that her youngest daughter (Ms Huang) is a good and caring person who enjoyed a happy childhood and youth, but whose state of mind changed after she commenced her PhD studies.  Since 2001 Ms Yue observed Ms Huang become vexed, restless, forgetful, depressed and lose interest in everyday activities.  Ms Yue refers to Ms Huang suffering physical pain and itchiness.  Ms Huang did not confide in her about the details of her problems.  Ms Yue deposes as to her distress concerning Ms Huang’s condition and her efforts to support and assist her.

3. Under cross-examination Ms Yue confirmed the essential details of her affidavit.  In that she was prompted by Ms Huang from the bar table in the Cantonese language and by facial and head gestures.  I cautioned Ms Huang on several occasions to desist from prompting her mother.  Ms Yue confirmed that Ms Huang had suffered an accident although she could not recall when that was.  Ms Yue linked Ms Huang’s change in demeanour to her PhD studies rather than the accident.  She could not recall details of Ms Huang’s studies and said that Ms Huang did not discuss such details with her.

4. Ms Yue insisted that Ms Huang never became ill before undertaking her PhD studies.  She could not recall Ms Huang taking time off before undertaking her PhD studies. 

Dr Jagdeep Sachdev

1. Dr Sachdev prepared a short affidavit filed on 2 December 2005 annexing a report on Ms Huang dated 14 June 2005.  Dr Sachdev says that she has been Ms Huang’s treating psychiatrist since 18 February 2003 and had prepared her report at Ms Huang’s request.  I was satisfied that Dr Sachdev was qualified to give opinion evidence about Ms Huang’s mental health.  Dr Sachdev, in her report, refers to the history recited to her by Ms Huang, including her allegations of sexual harassment, sex discrimination, disability and racial discrimination and plagiarism.  Dr Sachdev states that Ms Huang appeared to have an anxious, sensitive, perfectionist personality style.  Dr Sachdev details medication prescribed for Ms Huang and reports on the fluctuation of her mental state over the two years leading up to the preparation of the report.

2. Dr Sachdev concludes that harassment (said to have been suffered by Ms Huang at the hands of some of the University staff) has resulted in a marked increase in anxiety and depressive symptoms.  Furthermore, Ms Huang is in a vulnerable position, being a migrant of Asian background who is trying to establish herself in higher education.  Dr Sachdev concludes that obtaining her PhD was very important to Ms Huang and her exclusion had a devastating effect on her.  She carries feelings of shame and guilt.  Dr Sachdev comments that it is unfortunate that Ms Huang did not receive support from the University earlier in her studies.  She concludes that Ms Huang is now preoccupied with “seeking justice” to the extent of it having an adverse impact upon her mental health.  Dr Sachdev’s attempts to treat her have been only partially fruitful since the stress of the current legal proceedings was continuing.  Dr Sachdev reports a high degree of obsessionality and high moral standards which has made it difficult for Ms Huang to move on with her life.  Dr Sachdev believes that unless there is a satisfactory resolution of the conflict in the present proceedings, Ms Huang’s psychiatric symptoms and mental distress are unlikely to fully resolve.

3. I permitted Ms Huang to lead brief additional oral evidence from Dr Sachdev.  Ms Huang showed Dr Sachdev exhibit A3 (Prince of Wales Hospital mental health assessment).  Dr Sachdev said that she saw no symptoms of delusions or psychosis.  Ms Huang also showed Dr Sachdev exhibit A4, being a medical certificate dated 29 April 2003.  Dr Sachdev said that the certificate disclosed no prognosis.  It was just a certificate for a period of three months.

1. Professor Winder deposes as to a draft research plan submitted by Ms Huang in February 2002.  He deposes that Ms Huang did not submit a further redrafted literature review.  He deposes that he wrote to Ms Huang on 27 February 2002 advising her that the draft research plan needed finalisation for consideration of her suitability for re-enrolment.  He deposes as to subsequent correspondence.

2. Professor Winder deposes that on 4 March 2002 he advised Ms Huang by letter that he would recommend to the Faculty of Science’s higher degree committee that her candidature be terminated.  He deposes as to subsequent developments, including the placement of Ms Huang on programme leave and a request from the higher degree committee that Ms Huang show cause why her candidature should continue.

3. Professor Winder deposes as to his knowledge of a complaint made by Ms Huang in June 2002.  He deposes that in July 2002 he became aware for the first time of the allegations against him of sexual harassment and discrimination.

4. In cross-examination Professor Winder:

   i)admitted that he had supported the scholarship applications made by Ms Huang in 2001;

   ii)stated that he did not have detailed knowledge of dealings between Ms Huang and Dr Markovic between 1999 and 2002 and stated that while Dr Markovic had discussed Ms Huang’s research progress with him, this was after 1999;

   iii)confirmed that he had no recollection of the alleged incident in a corridor in late 1999 or early 2000 in which Ms Huang alleges he touched her upper thigh or hip with his hand as they passed, making an upward stroking motion with his hand;

   iv)stated that the touching as demonstrated by Ms Huang with the assistance of the interpreter would have been intentional and stated that it did not happen as demonstrated;

   v)admitted that in 2001 he was aware that Ms Huang wished to change supervisors but denied knowledge of the reason;

   vi)admitted that he probably received a letter from Ms Huang dated 13 September 2001 in which she referred to stress and nervousness in working with Dr Markovic;

   vii)denied any knowledge of a gender issue in relation to the supervision of Ms Huang;

   viii)admitted seeking advice from Ms Sybille Frank (who was investigating Ms Huang’s allegation of harassment against him), and said that he sought procedural advice as he did not understand the procedure for dealing with the complaint;

   ix)denied any formal discussion with Ms Frank before his interview with her in relation to her investigation of the complaint;

   x)stated that he provided a general summary of issues concerning Ms Huang to Ms Frank;

   xi)in response to a question from me said that the provision of this document was to draw Ms Frank’s attention to “broader issues”;

   xii)stated that, at their interview, Ms Frank told him she was not there to assist him and that she would prepare a report.  Ms Frank had inquired about a pattern of conduct and noted his statements about the relevant events.  Ms Frank had told him that she felt that there was probably no case to answer in relation to the single incident alleged;

   xiii)stated that he was “relieved” by that advice;

   xiv)stated that he told Ms Frank that he did not recall the alleged incident and that if any touching had occurred that it would have been accidental but that it probably did not occur at all;

   xv)stated that he also told Ms Frank that he observed no reticence on the part of Ms Huang in her dealings with him in the period after the alleged incident;

   xvi)denied that he had insufficient dealings with Ms Huang either before or after the time of the alleged incident in order to form any view about any change of attitude on the part of Ms Huang;

   xvii)denied any disagreement with Dianne Gardiner in relation to the re-enrolment of Ms Huang in 2002;

   xviii)admitted that in his discussions with Ms Huang there was no small talk either at the beginning or the end of a discussion but denied that Ms Huang was nervous during their meetings;

   xix)did not agree that Ms Huang had a tendency to cover up unpleasant things but stated that her personality was polite, reserved and respectful at all times and that there could be a component of reticence and conflict avoidance at times;

   xx)was generally aware of complaints made by Ms Huang in 2001 about her computer but stated that the resolution of those problems was a matter for her supervisor;

   xxi)in relation to the letter annexed to his affidavit at CW2, saw no discrepancy in warning Ms Huang to work harder and supporting her scholarship applications;

   xxii)said that the warning was issued to Ms Huang because Professor Winder had seen no work produced by Ms Huang and he expected that there should have been work;

   xxiii)said that the warning was also issued in consequence of a change of government policy which required the University to pay stricter attention to the progress of postgraduate students;

   xxiv)accepted that, as a part time student in 2001, Ms Huang could potentially take up to eight years to complete her PhD;

   xxv)said that paragraph 2 of the letter at CW2 was generic and had been included in letters to a number of students who the University considered might be in trouble.  Professor Winder said that the paragraph was a caution, not a threat;

   xxvi)disagreed that it was impossible for Ms Huang to undertake full time studies in 2001 without a scholarship;

   xxvii)agreed that Ms Huang changed from full time to part time studies in 2001 so that she could work;

   xxviii)said he was not aware at the time the letter at CW2 was sent that there was a need to consider whether Ms Huang had special needs warranting special consideration;

   xxix)said that the allocation of keys for access to various parts of the school premises was a matter for Mr Ray Locke and that student requests for the allocation of keys should go through their supervisors;

   xxx)said that the review conducted on 26 March 2001 was the first formal review of Ms Huang’s progress;

   xxxi)said that the usual procedure at such a review was for both the student and the supervisor to be interviewed by the research co‑ordinator and for there then to be a three way a discussion about the student’s progress – and was not aware whether that procedure was followed at the review on 26 March 2001;

   xxxii)had no recollection of Ms Huang being asked to sign Dr Markovic’s report on her progress when she asserted a lack of understanding of it;

   xxxiii)did not recall attending the review;

   xxxiv)was unable to say whether the letter from Professor McIntosh forming annexure HH-K5 to the affidavit of Ms Huang was the letter that would ordinarily follow the review and noted that the content of the letter (as well as the date) was consistent with it having been sent sometime earlier;

   xxxv)did not accept that the requirements imposed by Professor McIntosh in the letter were unfair as at 26 March 2001;

   xxxvi)was unaware of Dr Markovic’s assessment at the end of 1999 (which in his evidence he stated was erroneous) that Ms Huang had completed a literature review in 1999;

   xxxvii)speculated that a research outline prepared by Ms Huang for the review on 26 March 2001 had been prepared in response to Professor McIntosh’s letter;

   xxxviii)accepted that a research plan could change over the course of a PhD programme;

   xxxix)stated that he had not discussed with Dr Markovic a request for resources made by Ms Huang as the resources requested were a matter for Dr Markovic, the school just providing basic accommodation;

   xl)said that he had not discussed the computer issue with Dr Markovic until a complaint had been made by another staff member (Mr Yusuf) which resulted in Professor Winder writing the letter at annexure CW7 to his affidavit;

   xli)supported the decision by Dr Markovic to require Ms Huang to work with three other students in the latter part of 2001;

   xlii)in relation to the implosion incident, gave his opinion that Ms Huang was likely to have been at fault in not paying attention to the equipment in order to note the change in tone of the equipment as the vacuum produced during the procedure increased;

   xliii)noted the conclusions reached by Professor McLachlan in her report on Ms Huang’s allegations of fraud and plagiarism against Dr Markovic;

   xliv)accepted that Dr Markovic was looking for a commercial application for the soil testing work but did not accept that Dr Markovic “was only after money” as suggested by Ms Huang;

   xlv)said that he was concerned about Ms Huang’s lack of progress because the literature review she produced in September 2001 was “embarrassing” and that he and Dr Markovic were “appalled”;

   xlvi)said that he was not aware of asserted limitations in the software of Ms Huang’s word processing software on her computer but was aware of a certificate of sickness provided by Ms Huang for stress;

   xlvii)denied that he had offered to take over as Ms Huang’s supervisor but said that he had been happy to remain as her co-supervisor;

   xlviii)disagreed that exhibit R5 discloses any indication of a change of supervisor and did not know why the supervisor’s report on the form had not been filled in;

   xlix)agreed that a high proportion of postgraduate students in the school had a first language other than English and said that his views on Ms Huang’s poor English ability related to her literature review and that English training was available but he suspected that Ms Huang had ignored it; and

   l)said that there was no inconsistency between Ms Huang’s successful completion of her masters thesis and her failure to complete the PhD programme because the masters thesis required a much lower standard of work.

5. In re-examination Professor Winder said that, ordinarily, in the first year of a PhD programme he would expect to receive from the candidate at least parts of literature research.  He said that the first literature review produced by Ms Huang in September 2001 was embarrassing, not for its poor grammar and English, but rather for the failure of Ms Huang to demonstrate analytical skills and the absence of any demonstrated critical or “synthetic” skills, which Professor Winder explained as the skill to draw together disparate pieces of information into a coherent whole.  

Sybille Frank

1. Ms Frank is an equity officer employed by the University.  She works in the equity and diversity unit of the University.  The unit provides advice and support services to students and staff about equity and social justice issues, including advice and information on anti‑discrimination legislation, policies and practice, and assistance with grievance handling under the University’s discrimination and harassment grievance procedures.

2. Ms Frank deposes as to her dealings with Ms Huang on and from 25 March 2002.  She deposes as to the complaint lodged formally by Ms Huang with the University in June 2002 which dealt in part with her allegations of unlawful discrimination and sexual harassment.  Ms Frank investigated that complaint. 

3. Ms Frank deposes as to her interviews with Ms Huang concerning her complaints of harassment and discrimination and interviews she conducted with Dr Markovic, Chaminda Abayawickrama, Shamasuzzaman Uzzaman, Fatima Lestari and Professor Winder.  Ms Frank also deposes as to discussions she had with Ms Huang and Professor McLachlan, Mr Hulme and Ms Jane Gatwood concerning Ms Huang’s complaints, her enrolment status and allegations of fraud and plagiarism.

4. In her second affidavit Ms Frank responds to parts of Ms Huang’s affidavits. 

5. Under cross-examination Ms Frank:

   i)confirmed that Ms Huang had been referred to her by Ms Clare Nabke-Hatton and that she had met Ms Nabke-Hatton to discuss the matter on 21 March 2002;

   ii)confirmed that she met Ms Huang on 25 March 2002 when they discussed an initial “report” setting out Ms Huang’s complaints;

   iii)could not recall having previously seen correspondence from the University concerning the cancellation of Ms Huang’s PhD enrolment;

   iv)confirmed that she had prepared a summary of her actions which forms HH-P5 to Ms Huang’s affidavit “4” filed on 16 May 2005.

   v)confirmed that she had discussed with Ms Huang and with Mr Hulme options for dealing with the various issues raised by Ms Huang;

   vi)could not recall the detail of particular conversations identified by Ms Huang in May and June 2002;

   vii)denied suggestions from Ms Huang that she had suggested delaying or deleting Ms Huang’s complaints of harassment;

   viii)agreed that she had told Ms Huang that the University’s higher degree committee could not consider her allegations of harassment;

   ix)stated, in answer to a question from me, that she saw her role as to discuss the various issues with Ms Huang and assist her to deal with them and to investigate the complaints of harassment and discrimination;

   x)denied suggestions from Ms Huang that she sought to influence her as to the content of the formal complaint eventually lodged by Ms Huang;

   xi)agreed that she had discussed the first “report” prepared by Ms Huang in March 2002 and that she had queried various aspects with Ms Huang that she had found difficult to understand and in respect of which she had noted repetition;

   xii)denied that she suggested giving priority to Ms Huang’s concerns over her enrolment status;

   xiii)stated that Ms Huang had told her that her principal concern was her enrolment status;

   xiv)agreed that Ms Huang had expressed a desire to change supervisors and to have female supervisors;

   xv)accepted that there were differences between the “report” she had discussed with Ms Huang and the final “report” formally lodged with the University as a statement of Ms Huang’s complaints, but denied that she was responsible for the differences;

   xvi)agreed that she had discussed the options available to Ms Huang with her in relation to the various aspects of her complaints;

   xvii)agreed that she had prepared an options documents and made notes on it (exhibit A22) but resisted suggestions from Ms Huang that she or Mr Hulme were responsible for eliminating various options;

   xviii)agreed that she had not conducted any interviews in relation to Ms Huang’s complaints of harassment before July 2002;

   xix)agreed that the handwriting on the document which became exhibit A27 was hers;

   xx)agreed that she had met Ms Huang on 3 July 2002 where they had discussed a summary of Ms Huang’s allegations prepared by Ms Huang;

   xxi)denied strenuously that when she and Ms Huang had discussed the alleged touching incident involving Professor Winder, that Ms Huang had demonstrated and upward stroking motion from the wrist on her upper thigh with a straight outstretched arm, insisting, rather that Ms Huang had demonstrated a swinging arm motion with the arm only slightly outstretched from the body;

   xxii)accepted that the word “brushed” in her report in relation to this incident was her word and said that Ms Huang had probably used the word “touched”;

   xxiii)resisted suggestions from Ms Huang that her description of the incident indicated intentional touching of Ms Huang by Professor Winder;

   xxiv)denied that she had sought to persuade Ms Huang that the incident was an accident but agreed that she had asked Ms Huang if it could be;

   xxv)agreed that she discussed with Ms Huang on 3 July 2002 Ms Huang’s harassment allegations against Dr Markovic;

   xxvi)could not recall Ms Huang saying anything at that time about Dr Markovic laughing as he reached towards her;

   xxvii)noted that there was nothing in Ms Huang’s “report” of her complaints prepared in March 2002 about laughing;

   xxviii)agreed that she had queried with Ms Huang why she thought Dr Markovic’s actions indicated any sexual interest;

   xxix)stated that Ms Huang had answered “no” to her enquiry whether Dr Markovic had made any direct sexual proposal to her;

   xxx)agreed that she had interviewed Dr Markovic about the harassment allegations against him on 1 August 2002 and agreed that the notes forming annexure HH-P12 to Ms Huang’s affidavit “4” were hers;

   xxxi)confirmed that she asked Dr Markovic about Ms Huang’s allegations, including in relation to alleged inappropriate comments and that Dr Markovic had suggested a particular comment could have been made by a student (possibly Mr Uzzaman);

   xxxii)agreed that an e-mail received from Mr Abayawickrama, while generally supportive of Dr Markovic and critical of Ms Huang, had suggested that Dr Markovic may well have made a comment about Ms Huang’s age and single status and added that Dr Markovic had strenuously denied the allegation but had been counselled about the possible comment; and

   xxxiii)accepted that the handwriting on MFI A18 was hers (at which point I accepted the document as an exhibit – A18).

ANNEXURE B

1. Section 3 of the HREOC Act defines unlawful discrimination as:

   any acts, omissions or practices that are unlawful under:

   (aa) Part 4 of the Age Discrimination Act 2004 ; or

   (a) Part 2 of the Disability Discrimination Act 1992 ; or

   (b) Part II or IIA of the Racial Discrimination Act 1975 ; or

   (c) Part II of the Sex Discrimination Act 1984 ;

   and includes any conduct that is an offence under:

   (ca) Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or

   (d)Division 4 of Part 2 of the Disability Discrimination Act 1992 ; or

   (e) subsection 27(2) of the Racial Discrimination Act 1975 ; or

   (f)section 94 of the Sex Discrimination Act 1984 .

2. Section 46PO of the HREOC Act goes on to provide:

   (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 Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

   (2)   The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

   (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.

3. Section 28A of the SDA provides:

   (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.

4. Section 28F of the SDA provides -

   (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.

   (2)It is unlawful for a person who is an adult student at an educational institution to sexually harass:

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

   (b)     a member of the staff of the institution.

   (3)     In this section:

   "adult student" means a student who has attained the age of 16 years.

1. Section 9 of the RDA provides:

   (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

   (1A) Where:

   (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

   (b) the other person does not or cannot comply with the term, condition or requirement; and

   (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

   the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

   …

2. Section 5 of the DDA provides:

   (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

   (2)   For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.’

3. Section 6 of the DDA provides –

   For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

   (a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

4. Section 4 defines "disability":

   in relation to a person, means:

   (a)total or partial loss of the person’s bodily or mental functions; or

   (b)   total or partial loss of a part of the body; or

   (c)   the presence in the body of organisms causing disease or illness; or

   (d)   the presence in the body of organisms capable of causing disease or illness; or

   (e)   the malfunction, malformation or disfigurement of a part of the person’s body; or

   (f)    a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

   (g)   a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

   and includes a disability that:

   (h)     presently exists; or

   (i)      previously existed but no longer exists; or

   (j)      may exist in the future; or

   (k)     is imputed to a person.

5. Section 94 of the SDA provides -

   (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.

   (3)   It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.

6. Section 42 of the DDA contains a similar provision. The RDA deals with victimisation in s.27.