Huang v University Of New South Wales and Ors (No.2) - [2006] FMCA 220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v UNIVERSITY OF NEW SOUTH WALES & ORS (No.2)

[2006] FMCA 220

HUMAN RIGHTS – Sex, race and disability discrimination in education – allegation of victimisation – interlocutory ruling that the Court has no jurisdiction to consider a complaint of victimisation that has not been terminated by HREOC.

Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)

Huang v University of NSW & Ors [2005] FMCA 463

Applicant:

HONG CUI HUANG

First Respondent:

Second Respondent:

Third Respondent

UNIVERSITY OF NEW SOUTH WALES

BOBAN MARKOVIC

CHRIS WINDER

File Number:

SYG1691 of 2003, SYG2124 of 2004

Judgment of:

Driver FM

Hearing date:

13-16 February 2006

Delivered at:

Sydney

Delivered on:

16 February 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms J Oakley

Solicitors for the Respondents:

UNSW Solicitor

INTERLOCUTORY ORDERS

The Court rules that it has no jurisdiction to entertain the applicant’s claims of victimisation.
The hearing is adjourned for directions at 9.30am on 16 March 2006.
Costs thrown away by reason of the adjournment are reserved.
The applicant has leave to file a single correcting affidavit in relation to paragraphs 39, 55, 57, 64, 66, 67, 92, 112, 117, 153, 171, 172 and 183 of her affidavit filed on 29 October 2004.

CORRECTED JUDGMENT

The names of the second and third respondents have been reversed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1691 of 2003

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

Ms Huang (the applicant) claims damages of $12,808,866.64 for racial, disability and sex discrimination and also for sexual harassment. The present proceeding is against three of five respondents. The proceeding against a fourth respondent has been severed from this proceeding as he has not yet been served. The proceeding against a fifth respondent was severed at an early stage and heard separately: Huang v University of NSW & Ors [2005] FMCA 463.
The particulars of Ms Huang’s claim, and significant parts of the voluminous evidence filed in support of it, also identified a claim of victimisation under the Sex Discrimination Act 1984 (Cth) (“the SDA”) and also victimisation under the Disability Discrimination Act 1992 (Cth) (“the DDA”) and the Racial Discrimination Act 1975 (Cth) (“the RDA”). The basis of the asserted victimisation under the SDA appears to be a claim that the respondents victimised the applicant following her making of a complaint of sexual harassment to the University. The claim of victimisation under the DDA appears to relate to Ms Huang’s claim of discrimination because of her anxiety and depression conditions. The claim of victimisation under the RDA appears to relate to Ms Huang’s claim of discrimination as a person for whom English is a second language.
The trial of this matter commenced on Monday, 13 February 2006. During the course of the trial I made a jurisdictional ruling that I had no jurisdiction to consider the claims of victimisation because no complaint of victimisation had been made to the Human Rights and Equal Opportunity Commission (“HREOC”). Ms Huang concedes that there has been no termination of such a complaint but asserts that a complaint of victimisation had been made to HREOC which should have been terminated and should be taken to have been terminated, and that hence I should consider it. My jurisdictional ruling resulted in significant material being deleted from the evidence. Ms Huang sought reasons for my ruling in order for her to consider seeking leave to appeal to the Federal Court, on the basis that she regarded the victimisation claim as a key element of her claims overall.

Dealings between Ms Huang and HREOC

On 28 July 2003 a delegate of the President of HREOC terminated a complaint of sex discrimination made by Ms Huang against all of the respondents. The complaint contained allegations of sexual harassment by several of the respondents which was terminated as part of the complaint under the SDA. Attachments A and B to the Notice of Termination are Ms Huang’s complaint and the letter from the delegate of the President explaining the termination. Nowhere is there any issue of victimisation raised. An allegation of sex discrimination regarding cancellation of Ms Huang’s PhD enrolment was raised and dealt with by HREOC. Ms Huang had claimed that her allegations of sexual harassment were linked to the termination of her enrolment in the PhD programme in the University. She suggested that because she did not respond to Dr Markovic and Associate Professor Winder’s alleged sexual advances, her enrolment in the PhD programme was affected. This was treated as an allegation of less favourable treatment by reference to Ms Huang’s sex. It was not treated as an allegation of victimisation.
On 26 May 2004 a delegate of the President of HREOC terminated a second complaint by Ms Huang. This was a complaint of racial and disability discrimination against the University, Dr Markovic and Professor Winder. Annexures A and B to the Notice of Termination are Ms Huang’s complaint and the letter from the delegate of the President explaining the termination. I see no assertion of victimisation in those documents. In the letter, under the heading “Other Issues Raised”, the delegate notes that Ms Huang had invited HREOC to reconsider her previous complaint of sexual harassment and sex discrimination. The delegate advised that there was no power to reconsider the complaint and that it was the subject of legal proceedings in the Court. The delegate advised that HREOC would not be taking any further action in relation to that matter.
In 2005 Ms Huang entered into extensive correspondence with HREOC about her complaints. Ms Huang’s correspondence raised a number of issues but in a letter dated 28 April 2005 to the director of complaint handling at HREOC, Ms Huang raised the issue of victimisation.
On 9 May 2005 the acting director of the complaint handling section of HREOC wrote to Ms Huang, reviewing the correspondence to that point, and the enquiry process before HREOC. HREOC advised that it would not be taking any further action in relation to the matters Ms Huang had raised. Relevantly, the letter included the following:
In relation to the issues of the victimisation under the RDA, SDA and DDA, I wish to advise that you have never made a complaint of victimisation to the Commission nor did you seek to amend it to include an allegation of victimisation and therefore the Commission cannot terminate a complaint of victimisation under the HREOC Act. I have carefully reviewed your previous complaints and I consider that you have not evinced a complaint of victimisation. I note that at no point in the handling of the complaints or when the complaints were terminated did you raise a complaint of victimisation. I also note that in your correspondence of 9 April 2005 you have raised issues of victimisation that relate to alleged events which took place in October 2004 and November 2004. These matters allegedly occurred after your complaints with the Commission were terminated.
I also note that your previous complaints to the Commission relate to alleged events which took place from 1999 to 2001. Should you wish to make a complaint of victimisation about these alleged matters, it is likely that the Commission would look at terminating these matters under section 46PH(1)(b) of the HREOC Act on the ground that complaint was lodged more than 12 months after the alleged unlawful discrimination occurred.
If you decide to pursue a complaint of victimisation with the Commission you would need to provide the following information in writing within seven days of the date of this letter:
-    the name of the person(s) you were complaining against;
-    an outline of the alleged acts of victimisation, including what happened, where it happened and when it happened;
-    for each allegation, how it is connected to you asserting rights under the SDA, DDA and/or RDA;
-    reasons why the Commission should inquire into such a matter given that many of the alleged acts occurred more than 12 [months] ago.
Should you not provide the above information within this timeframe, the Commission will not be taking any further action in relation to the issues you have raised.
On 2 June 2005 Ms Huang wrote a 19 page letter to HREOC in which she sought to re-agitate all of her complaints against the respondents.
On 29 July 2005 Ms Huang wrote again to HREOC requesting the termination of a complaint of victimisation against the fifth respondent.
On 18 August 2005 the director of the complaint handling section of HREOC wrote again to Ms Huang referring to various letters that had been received from her. The letter noted that Ms Huang had sought the termination of complaints of alleged victimisation under the SDA, DDA and RDA. The letter referred to the earlier letter from HREOC dated 9 May 2005 which explained the inability of HREOC to terminate a complaint where no complaint had been made.
The letter went on to note that on 2 June 2005 Ms Huang had provided some particulars of alleged victimisation. The letter summarised the issues raised.
In relation to the alleged victimisation, the letter concluded as follows:
Having reviewed the issues you have raised in relation to your allegations of victimisation, I wish to advise the Commission will not be accepting these matters as a complaint at this stage. I will address each of your matters in turn.
(1)With respect to the issues raised about Dr Markovic and Associate Professor Winder, I consider that these matters have already been dealt with by the Commission. You have already raised these matters in your previous complaints as allegations of unlawful discrimination under the terms of the SDA, RDA and DDA. Your complaint of unlawful discrimination under the SDA was terminated on 28 July 2003 and your complaint of unlawful discrimination under the RDA and DDA were terminated on 26 May 2004. Given that the Commission has already dealt with this subject matter, the Commission will not be accepting these matters as a complaint. I also note that Driver FM has found no substance to your claim of sex discrimination against the UNSW in your application to the Federal Magistrates Court, Huang v University of NSW & Ors [2005] FMCA 463.
(2)I do not believe that the alleged comments made by Mr Abayawickrama in the e-mail would satisfy section 94 of the SDA. I consider that you have provided insufficient particulars showing how you have experienced a detriment from Mr Abayawickrama or a threat of a detriment and, secondly, that the detriment was because you asserted rights under the SDA in relation to the e-mail of 15 August 2005.
(3)In relation to your allegations about Mr Xiao, I understand that Driver FM addressed this matter in his decision of Huang v University of NSW & Ors [2005] FMCA 463. I note that Driver FM found that there was no substance to your claim of victimisation against Mr Xiao. This matter has already been dealt with by the Court and the Commission will not be taking any further action about this matter.
(4)With respect to the issues you have raised concerns about nuisance telephone calls, I note that you have not identified who has made these alleged nuisance calls to you and how this could constitute allegations of victimisation. You have provided insufficient particulars in relation to these matters and therefore the Commission cannot accept these matters as a complaint.
Ms Huang seeks to read the above observations at (1) as an acceptance by HREOC that her complaint of victimisation had previously been terminated. I disagree. HREOC was not stating that it had already terminated a complaint of victimisation but, rather, that the subject matter now said to support the claim of victimisation had been dealt with in the complaint terminated on 28 July 2003. Likewise, the subject matter said to support the alleged victimisation under the RDA and the DDA was terminated on 26 May 2004. HREOC declined to accept the same subject matter re-presented at a later date as a complaint of victimisation.
On the basis of the above material I ruled that no complaint of victimisation under the SDA, the DDA or the RDA had been accepted by or terminated by HREOC, and that, in the absence of such a termination, I have no jurisdiction to entertain proceedings for victimisation under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Consequently, I rejected as not relevant evidence presented by Ms Huang that went to the issue of victimisation. The table annexed to this judgment details the evidentiary rulings that I made following two days of argument about what documents Ms Huang relies upon and objections to that material.
Subject to receipt of a correcting affidavit, Ms Huang’s evidence in chief has been completed. She has not yet been cross-examined, although her other witnesses have been.
The trial was adjourned on 16 February 2006 following the presentation of a medical certificate by Ms Huang to the effect that she was unfit to continue. I had by that stage made my jurisdictional ruling. The trial has been adjourned for directions at 9.30am on 16 March 2006 to enable Ms Huang to consider her position. Costs thrown away by reason of the adjournment have been reserved.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 February 2006