Huang v University Of NSW and Anor (No.4)
[2010] FMCA 474
•1 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v UNIVERSITY OF NSW & ANOR (No.4) | [2010] FMCA 474 |
| PRACTICE & PROCEDURE – Application to vacate imminent hearing date. |
| Federal Magistrates Court Rules 2001, r.11.08 |
| Huang v University of New South Wales [2010] FMCA 475 Huang v University of New South Wales [2010] FMCA 171 Huang v University of New South Wales [2010] FCA 208 Huang v University of New South Wales (No.2) [2010] FCA 299 Huang v University of New South Wales (No.3) [2010] FMCA 468 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Huang v University of New South Wales (No.2) [2010] FMCA 192 |
| Applicant: | HONG CUI HUANG |
| First Respondent: | UNIVERSITY OF NEW SOUTH WALES |
| Second Respondent: | FUCHUN XIAO |
| File Number: | SYG 577 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 July 2010 |
| Date of Last Submission: | 1 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr I. Latham |
| Solicitors for the First Respondent: | University of New South Wales Legal Office |
| No appearance by the Second Respondent |
ORDERS
The applicant’s application in a case filed today be dismissed.
The listing of this matter for hearing commencing on 26 July 2010 be confirmed.
The time for the filing of the applicant’s affidavit in reply to the affidavit of Sybille Frank be extended to 19 July 2010.
| 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
These proceedings concern allegations of sexual harassment which the applicant has made against the two respondents. The matter is before the Court today pursuant to an order made on 23 March 2010, at which time a four-day final hearing in this case commencing on 29 March 2010 was vacated. A replacement four-day listing on 26 July 2010 was ordered and today’s date was fixed to determine whether the matter should proceed or whether a litigation guardian should be appointed to the applicant. As will be referred to in more detail later in these reasons, the March 2010 hearing date was vacated because I was not satisfied that the applicant’s mental health was such that she could, as an unrepresented person, be expected to run her case at that time and do herself justice.
Seizing the opportunity to raise other matters today, the applicant has sought and obtained leave to file in a court an application in a case, seeking an order vacating the July 2010 hearing date.
In summary, the bases for the applicant’s application for the vacation of the hearing dates are that:
a)the second respondent has denied her claims, including that Professor Daljae Park witnessed events which she says are relevant to her claim;
b)on 9 August the Full Court of the Federal Court will hear her appeal from a decision of Emmett J to refuse her application for a letter of request to facilitate the taking of evidence from Professor Park who now resides in South Korea;
c)it is in the interests of justice that evidence be taken from Professor Park;
d)she needs time to prepare her submissions for the Federal Court;
e)she has been unable to correct the mistakes which she has identified in the affidavits which she has already filed in these proceedings; and
f)she has been unable to complete her affidavit replying to the affidavit of Sybille Frank, filed 11 September 2009.
This is not the first time the applicant has sought to vacate a hearing date. The most recent relevant occasion was on 1 March 2010, an application to which I shall shortly return.
Recent procedural history
On 5 February 2010 by an application in a case filed on 2 February 2010, the applicant sought, amongst other things, a letter of request directed to the Republic of Korea to assist in the taking of evidence by video-link of Professor Daljae Park of the Department of Safety Engineering at the Seoul National University of Technology. The letter of request which the applicant sought was the kind of process which may be issued by the Federal Court but not this Court. As this Court does not have such power, that application was refused.
The Court also refused an application to issue and serve a subpoena to give evidence addressed to Professor Park which would have involved requiring him to give evidence by video-link from South Korea. That application had initially been made in an application in a case filed on 15 January 2010. As I said at the time:
Until a letter of request is issued by the Federal Court to the Republic of Korea, there is no point in this Court requesting the Attorney General’s department to cause a subpoena addressed to Professor Park to be sent to Korea for service. In particular, that subpoena would have to identify the place where Professor Park should attend to give evidence and the time when he should attend to give evidence. In the absence of any arrangements for the giving of his evidence, such as the arrangement of a room and electronic equipment for the video-link which would be necessary, the subpoena would be incomplete and could not issue. (Huang v University of New South Wales [2010] FMCA 475 at [4]).
The applicant then commenced proceedings in the Federal Court seeking a letter of request.
After taking that step, the applicant then applied to this Court for vacation of the March 2010 hearing date. One of the grounds relied on at the time was that Professor Park swore an affidavit but was unable to give evidence and would not be available unless the Federal Court issued a letter of request to be sent to the Republic of Korea. The applicant proposed that Professor Park give evidence by video-link although at the time, and still today, no order has been made that Dr Park may give evidence by video-link, should he wish to participate in these proceedings. On 1 March 2010 the application to vacate the hearing date was refused: Huang v University of New South Wales [2010] FMCA 171. Many of the considerations relevant at that time remain relevant now.
The letter of request application came before Emmett J in the Federal Court on 4 March 2010. For reasons given at that time: Huang v University of New South Wales [2010] FCA 208, on 12 March 2010 his Honour refused the application: Huang v University of New South Wales (No.2) [2010] FCA 299.
On 12 March 2010 the applicant filed another application in a case seeking an order that the March 2010 hearing date be vacated. The grounds for that application were expanded on in a document which was filed in court on 17 March 2010. On 23 March 2010, having heard the evidence of three doctors who had, at various times, treated the applicant, I concluded that the applicant’s mental state was such that justice required that the hearing date be vacated: Huang v University of New South Wales (No.3) [2010] FMCA 468. It was on that occasion that today’s listing was ordered. Other detailed procedural orders were also made that day.
Should the listed hearing proceed – competency issue
In her affidavit filed today, the applicant says that she has the capacity to prosecute the proceedings and is confident in the proceedings if the Court considers her mental condition and gives her time. Today she has said that after the last occasion in court she consulted Dr Sachdev (see Huang v University of New South Wales (No.3) [2010] FMCA 468 at [3] and [4]) who advised her to take certain medication which had previously been prescribed for her and to undertake a course of therapy at the Mental Program Centre at Bondi Junction. The applicant has been allocated a case manager whom she sees at Bondi Junction every fortnight.
However, she is not taking the medication she was prescribed and has preferred to take Chinese herbal medicine. The applicant complained that the drugs which she had been prescribed had adverse side effects, including dizziness, whereas the herbal medicine she has been taking makes her comfortable and relaxed. She says that she has been sleeping better.
The applicant also provided to the Court a medical certificate from Dr Ullman, who gave evidence on the last occasion. In that medical certificate dated yesterday, the doctor says:
This is to certify that this woman, Hong Cui Huang, will be mentally fit to deal with her court matters tomorrow. Please give her adequate time to understand the language barriers and allow her to deal with one thing at a time.
The applicant has told the Court today that her brain is clear, that she can think very well and that she has good judgment. However, she says that she can only do one thing at a time and seeks an adjournment of the hearing on that account. Although it appears that the applicant is still suffering from her obsessive compulsive disorder, based on what she has told me today and what Dr Ullman has said in his certificate, I am not of the view that the applicant meets the criteria set out in r.11.08 for the appointment of a litigation guardian. The concerns which I had in March 2010 about whether the matter could proceed, by reason of the applicant’s poor mental health, have been sufficiently addressed today by the applicant for me to conclude that there is no reason why, by reason of the applicant’s mental state, the hearing should not proceed as listed in July.
Application to vacate hearing date
Turning to the matters which the applicant has raised in her application in a case filed by leave today, I appreciate that she has appeal proceedings on foot before the Full Court of the Federal Court. However, until the Full Court reverses the orders of Emmett J, there is no impediment to this matter proceeding. I also note that the applicant has not sought a stay of these proceedings from the Federal Court.
Moreover, the parties agreed that Emmett J suggested to the applicant that the better course of action for her, rather than appeal his decision, was to file a further application in the Federal Court. She has not sought to do this and it can be assumed that it would have been an option quicker than the appeal which she has chosen to pursue. Although the applicant explained her reasoning for appealing rather than filing a fresh application at first instance in the Federal Court, the fact is that she has made the choice she has. The fact that she has chosen a route which experience suggests would be the slower one should not be a reason for delaying these procedures: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 195 [35].
As to the fact that the second respondent has denied her claims, that is simply an issue which has to be addressed at the hearing when it is held. It is certainly not a basis for vacating the hearing date. A similar matter was considered in my reasons for judgment of 1 March 2010 in Huang v University of New South Wales [2010] FMCA 171 at [13].
As to the need to take evidence from Professor Park, that was something which should have been apparent to the applicant, if indeed it is correct, a long time ago. The fact that the application for a letter of request has come late is not something which, in all the circumstances, leads me to the view that the hearing should be adjourned for a third time.
As to the affidavits which the applicant wishes to correct, on 23 March 2010 I ordered that she could file no evidence after 25 June 2010 unless she obtained the Court’s leave. She has not sought that leave. In any event, corrections of documents should not derail a hearing unless there is a very good reason and until a good reason is advanced, but subject to the issue of the applicant’s affidavit in reply, the applicant may file no further evidence. I repeat what I said in this regard on 17 March 2010 in Huang v University of New South Wales (No. 2) [2010] FMCA 192 at [8].
As to the applicant’s wish to file evidence replying to what Ms Frank said in her affidavit, this issue was considered on 1 March 2010 and found not to justify vacating the hearing date. Nothing has been put before the Court today which affects the conclusion I expressed on that occasion. However, I will extend the time for filing the applicant’s affidavit in reply to 19 July 2010.
In considering the applicant’s request that the hearing date be vacated, it should also be recorded that in her applications in a case filed on 12 February 2010 and 1 March 2010, she sought the vacation of the March hearing date and the listing of the matter for hearing this week. That application was not successful but, as has been rehearsed, a subsequent application was and the applicant given a date even later than the one which she originally sought.
In light of my conclusion concerning the applicant’s ability to prosecute her claim, the reasons I gave on 1 March 2010 for refusing the application for the vacation of the hearing date which was then before the Court apply even more strongly today. Hearing dates in this matter have already been vacated on two occasions. In my opinion, the hearing of this case is overdue and no good reason has been advanced as to why it should be delayed further.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 July 2010
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