Huang v University Of New South Wales and Anor (No.5)
[2010] FMCA 975
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v UNIVERSITY OF NEW SOUTH WALES & ANOR (No.5) | [2010] FMCA 975 |
| PRACTICE & PROCEDURE – EVIDENCE – “First-hand” hearsay exception – unavailability of witness – failure to serve notice under s.67 of the Evidence Act 1995 – direction under s.67(4) of the Evidence Act 1995 – relevant considerations. |
| Evidence Act 1995, ss.63, 64, 67, 167, 170, 171, 192, cls.4 & 6 of pt.2 of the Dictionary Evidence Regulations 1995, reg.5 Federal Magistrates Court Rules 2001, r.15.05 |
| Huang v University of New South Wales [2010] FMCA 475 Tsang Chi Ming v Uvanna Pty Ltd (1996) 140 ALR 273 Harrington-Smith v Western Australia (No.4) (2003) 197 ALR 131 |
| Applicant: | HONG CUI HUANG |
| First Respondent: | UNIVERSITY OF NEW SOUTH WALES |
| Second Respondent: | FUCHUN XIAO |
| File Number: | SYG 577 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 8 December 2010 |
| Date of Last Submission: | 8 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr I. Latham |
| Solicitors for the First Respondent: | University of New South Wales Legal Office |
| The Second Respondent appeared in person |
ORDERS
Pursuant to s.67(4) of the Evidence Act 1995, s.63(2) of that Act is to apply to the applicant’s affidavit sworn 15 January 2010 entitled “Affidavit (the affidavit of Daljae Park)” and to para.6 of the applicant’s affidavit sworn 5 May 2008 entitled “Affidavit (Daljae Park’s evidences and affidavit)”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 577 of 2008
| HONG CUI HUANG |
Applicant
And
| UNIVERSITY OF NEW SOUTH WALES |
First Respondent
| FUCHUN XIAO |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter came before the Court on 8 December 2010 to deal with the objections which the second respondent, Dr Xiao, wished to make to the affidavit of Professor Daljae Park sworn 16 February 2005. At the outset it is important to recognise that it is not Professor Park’s affidavit itself which is truly the subject of the objection but the affidavits of Ms Huang sworn 15 January 2010 and 5 May 2008 each of which annexes a copy of the professor’s affidavit. An original copy of the professor’s affidavit has not been filed in this stage of the proceedings.
There is no doubt that the matters contained in what appears to be Professor Park’s affidavit, if admitted, would be relevant to Ms Huang’s allegation that in or about August 2001 Dr Xiao sexually harassed her by showing her pornographic pictures on the computer in her office. She says that Professor Park, who at the time was a doctoral student in the first respondent’s School of Safety Science, suggested that Dr Xiao would be able to assist her to install Adobe Acrobat on her computer. The essence of Ms Huang’s allegation is that at the time Professor Park made this suggestion the three of them, together with some other students, were in the same room at the School of Safety Science and that upon the suggestion being made, Dr Xiao proceeded to Ms Huang’s office whereupon he allegedly showed her the images which are the basis of this allegation. Dr Xiao denies that he was present as alleged.
The first respondent, the University of New South Wales, accepts that Mr Huang’s affidavit of 15 January 2010 is admissible, and concedes that it has had sufficient notice of the representations contained in Professor Park’s affidavit for the purposes of s.67 of the Evidence Act 1995 (“Act”). Even so, it has objected to portions of her affidavit of 5 May 2008, including para.6 which annexes a copy of Professor Park’s affidavit.
Section 63 of the Act provides:
63 Exception: civil proceedings if maker not available
(1)This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Section 64 of the Act relevantly provides:
64 Exception: civil proceedings if maker available
(1)This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. …
The first question to consider in relation to the admissibility of Ms Huang’s affidavits as far as they relate to the annexed affidavit of Professor Park is whether Professor Park made a previous representation in the sense understood by ss.63 and 64. Clause 6 of pt.2 of the Act’s Dictionary provides:
6 Representations in documents
For the purposes of this Act, a representation contained in a document is taken to have been made by a person if:
(a)the document was written, made or otherwise produced by the person;
(b)the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.
Section 170 provides that evidence of a person having made a representation governed by ss.63 and 64 may be given by a person referred to in s.171 of the Act. That section relevantly provides:
171 Persons who may give such evidence
(1) Such evidence may be given by:
(a)a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing; …
In Ms Huang’s affidavit of 5 May 2008 she deposes to the steps she took to obtain Professor Park’s affidavit. She also deposes to the fact that, and to the manner by which, he swore the affidavit. In that affidavit she deposed that she spoke to him on a number of occasions before he swore his affidavit. She deposed that she prepared a draft affidavit for his consideration which he ultimately swore before a Justice of the Peace. She deposed that the Justice of the Peace asked Professor Park “Do you believe it is the fact” to which he said “yes”.
On the voir dire Ms Huang was cross-examined on her affidavit of 5 May 2008. She said that she had asked Professor Park to prepare a statement for her but he did not have time. Because of this, she prepared the affidavit herself and showed it to him. He read it, agreed with it and signed it before the Justice of the Peace. Ms Huang saw him sign it.
It should be noted that in the version of the affidavit annexed to Ms Huang’s affidavit sworn 5 May 2008 certain words have been crossed out. However, that amendment shows no sign of having been approved by the deponent and will be ignored. On that basis the copies of Professor Park’s affidavit annexed to Ms Huang’s two affidavits are, effectively, identical.
I am satisfied that Ms Huang is a person who may give evidence of the facts referred to in ss.63 and 64 and, relevantly for present purposes, that Professor Park swore the affidavit which is annexed to her affidavits of 15 January 2010 and 5 May 2008. Based on this evidence I accept that Professor Park swore the affidavit which is annexed to both those affidavits of Ms Huang.
It is accepted that Professor Park is currently resident in the Republic of Korea and so the question arises whether he is available to give evidence and thus which of s.63 or s.64 applies to Ms Huang’s affidavit of 15 January 2010 and to para.6 of her affidavit of 5 May 2008. Clause 4 of pt.2 of the Act’s Dictionary relevantly provides:
4 Unavailability of persons
(1)For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
…
(e)all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or
(f)all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2)In all other cases the person is taken to be available to give evidence about the fact.
Section 171 permits Ms Huang to give evidence going to the unavailability of Professor Park to give evidence. On the voir dire she gave evidence of the attempts which she had made to have Professor Park give evidence in the current proceedings. These included unsuccessfully trying to have the University accept service of a subpoena when she thought Professor Park was still in Australia. When she learned that he was not, she did an internet search and was able to identity his academic supervisor in South Korea. She sought this person’s assistance and was given Professor Park’s email address and telephone number in South Korea. She then emailed and telephoned Professor Park in South Korea. Ms Huang’s evidence was that Professor Park did not respond to her email and that when she tried to telephone him he either hung up on her or spoke such accented English that she was not able to understand him. Ms Huang also gave evidence of her subsequent application to this Court for the issue of a subpoena for overseas service and of her application to the Federal Court for a letter of request, both of which were unsuccessful. Ms Huang was not cross-examined on this evidence.
I find that Ms Huang has taken all reasonable steps to find Professor Park, to secure his attendance and to compel him to attend but has been unsuccessful. I find that Professor Park is not available to give evidence and that s.63 of the Act is the provision which applies in the current circumstances.
In connection with the Act’s exceptions to the hearsay rule for first-hand hearsay, Dr Xiao submitted that he had not been served with a notice pursuant to s.67 of the Act. In essence, Dr Xiao submitted that he had been prejudiced by not having received such a notice. It was not contested that he had not received one. Section 67 provides:
67 Notice to be given
(1)Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.
(2)Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3)The notice must state:
(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and
(b) if subsection 64(2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.
(4)Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.
(5)The direction:
(a) is subject to such conditions (if any) as the court thinks fit; and
(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.
In response to this submission, Ms Huang applied for a direction pursuant to s.67(4) on the basis that she had served Professor Park’s affidavit some time ago and, at least in early 2010, had asked Dr Xiao to indicate whether he required Professor Park for cross-examination. She submitted that she had, in effect if not in form, satisfied the requirements of s.67. Dr Xiao opposed the application.
Ms Huang’s first affidavit annexing a copy of Professor Park’s affidavit was sworn and filed on 5 May 2008. Based on an email exchange between Ms Huang and Dr Xiao on 13 and 14 January 2010 found in exhibit NTAF9B in the main proceedings, to which Ms Huang took the Court in support of her application for a direction under s.67(4), I am satisfied that on 13 January 2010 she asked Dr Xiao if he required Professor Park for cross-examination. That exchange also indicates that Dr Xiao replied to the effect that whether the applicant brought Professor Park to the trial for cross-examination was her business and not his. Nevertheless, at the hearing of the present interlocutory application Dr Xiao told the Court that he wanted Professor Park to attend the trial to be asked questions.
Following the email exchange of 13 and 14 January 2010, on 15 January 2010 Ms Huang swore the second of her affidavits annexing Professor Park’s affidavit. On the same day she filed an application in a case with supporting affidavit seeking leave to serve a subpoena on Professor Park in South Korea and leave to adduce his evidence by video-link.
Section 192 of the Act provides, without limiting the matters which the Court may consider, that in deciding whether to give a direction such as the one sought by Ms Huang, the Court must take into account:
(a)the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b)the extent to which to do so would be unfair to a party or to a witness; and
(c) the importance of the evidence in relation to which the … direction is sought; and
(d) the nature of the proceeding; and
(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
The evidence in question is of importance to Ms Huang’s case because it is corroborative of her allegation that Dr Xiao was in the building housing the University’s School of Safety Science around the time when the sexual harassment is alleged to have occurred and had the opportunity to commit the act of sexual harassment which she alleges against him. Dr Xiao, and for that matter the University, has been on notice for some time, and no later than about six months prior to the commencement of the trial, that Ms Huang wished to rely on Professor Park’s affidavit. Had a s.67 notice been served in January 2010, whether in accordance with reg.5 of the Evidence Regulations 1995 or Federal Court form 144 (which rule 15.05 of this Court’s Rules permits), Dr Xiao would have had no information of any substance additional to what he already had. In this regard, by January 2010 he had already received two copies of Professor Park’s affidavit annexed to different affidavits of Ms Huang and was also aware, through the application in a case filed on 15 January 2010, that Professor Park was resident in South Korea: Huang v University of New South Wales [2010] FMCA 475. Moreover, in her affidavit of 5 May 2008 Ms Huang had described the circumstances in which Professor Park came to swear the affidavit and who was present at the time. Further, it was not suggested that a s.67 notice would have caused Dr Xiao to make a request under s.167 of the Act and it should be recalled that when he was asked in January 2010 whether he required Professor Park for cross-examination, Dr Xiao failed to say that he did.
By the end of January 2010 Ms Huang had largely satisfied the requirements of s.67 in substance if not in form. In the circumstances no real prejudice would be caused by making the direction which she seeks: Tsang Chi Ming v Uvanna Pty Ltd (1996) 140 ALR 273; Harrington-Smith v Western Australia (No.4) (2003) 197 ALR 131. Further, granting Ms Huang’s application is unlikely to have any material effect on the length of the trial although it is possible that the further hearing of the matter may be delayed should she renew her application to the Federal Court for a letter of request.
In the circumstances, I conclude that it is appropriate that I make a direction pursuant to s.67(4) of the Act that s.63(2) applies to the affidavit of Ms Huang sworn 15 January 2010 and to para.6 of her affidavit sworn 5 May 2008.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 December 2010
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