Wong v Su and ANOR.
[2001] FMCA 108
•13 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WONG v SU & ANOR. | [2001] FMCA 108 |
| HUMAN RIGHTS – Sex discrimination in employment – sexual harassment – alleged serious sexual assaults – credibility of the applicant. COSTS – indemnity costs award – costs award against solicitors. |
Federal Magistrates Court Rules
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 14, 28A, 28B, 106
| Applicant: | ANNA OI NGOR WONG |
| First Respondent: Second Respondent: | WILLIAM SU MELYORK PTY LTD |
| File No: | SZ151 of 2001 |
| Delivered on: | 13 November 2001 |
| Delivered at: | Sydney |
| Hearing Dates: | 30 August 2001 5 November 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr I McCluskey |
| Solicitors for the Applicant: | Andrew Lui Lawyers |
| Counsel for the Respondent: | Mr N Geikie |
| Solicitors for the Respondent: | Hogan Geikie Poole |
ORDERS
The application is dismissed.
Subject to Order 3, the applicant is to pay the respondents’ costs of and incidental to the application on an indemnity basis, including any reserved costs.
The applicant’s solicitors, Andrew Lui Lawyers, are to pay the costs thrown away that the applicant was ordered to pay on 8 August 2001, pursuant to Rule 21.07(1)(b) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ151 of 2001
| ANNA NGOR OI WONG |
Applicant
And
| WILLIAM SU |
First Respondent
MELYORK PTY LTD
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by ANNA OI NGOR WONG against WILLIAM SU and MELYORK PTY LIMITED. The application is brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging that the applicant was the subject of sexual harassment contrary to s.28A of the Sex Discrimination Act 1984 (“the SDA”). The applicant also alleged discrimination under s.5 of the SDA. Although not stated in the application the applicant presumably also relies upon ss.14, 28B and 106 of the SDA. The application is opposed by the respondents.
The application was terminated by a delegate of the President of HREOC on 15 January 2001 on the ground that there was no reasonable prospect of the matter being settled by conciliation. The application was filed within time in the Federal Court of Australia and since then has had a somewhat tortuous history. On 4 April 2001 his Honour Moore J ordered by consent that the proceedings be transferred to this Court. On 26 April 2001 I directed that the matter be listed for hearing for two days commencing on 4 July 2001 and made other interlocutory orders to prepare the matter for trial. On 2 July 2001 at the request of the applicant’s legal representatives I vacated the hearing dates and relisted the matter for hearing for two days commencing on 8 August 2001, as it was apparent that the applicant was not ready for the hearing. On 6 August 2001 the applicant’s solicitors filed a notice ceasing to act for the applicant. On 8 August 2001 at the commencement of the hearing it was apparent that the new solicitors retained by the applicant had not prepared properly for the trial of the matter and I agreed once again to vacate the hearing dates and to relist the matter for hearing commencing on 30 August 2001. I noted in the orders at that time that the Court would hear argument on 30 August 2001 or on 5 November 2001 whether costs I ordered to be paid by the applicant by reason of the further vacation of the hearing dates should be paid by the solicitors now acting for the applicant.
The applicant’s case
The applicant relies upon her own affidavit made on 9 February 2001, to which was annexed her complaint to HREOC. The applicant also relies upon her application in these proceedings, to which was annexed a description of the harassment she complained of. The applicant’s case is that she was sexually harassed by Mr Su on a regular basis between 11 May 1996 and 6 December 1998. The applicant says that this harassment occurred during the course of her employment and that during and after work Mr Su pressed her to perform sexual favours for him. The applicant says that the first respondent sexually assaulted her on a number of occasions. The applicant says that Mr Su threatened her that if she did not have sexual relations with him he would terminate her employment. The applicant says that she was offended, humiliated and intimidated by the harassment and that she resigned in February 1999 because of it. The applicant says that she was given less favourable treatment by reason of her sex by reason of the harassment. The applicant also alleges that she was sexually harassed by the second respondent but I take this to be simply an allegation of vicarious liability.
The only other material presented by the applicant were affidavits of service.
The applicant was cross-examined on her affidavit at length. She proved to be a highly unreliable witness. The applicant simply relied upon the statements she made to HREOC and when tested as to dates, places and events her evidence was found to be contradictory or vague and unreliable. The applicant asserted that her employment with the respondents began on 11 May 1996 and that it is still continuing. She was shown her contract of employment which established that the employment began on 16 July 1997. She claimed that the date was changed after she signed the document. It was apparent on the face of the document that the date had been altered by Mr Su, but I was told that this was to correct a typographical error, and the other documentary evidence supported this. The applicant was shown a letter she wrote on 31 October 1997 in which she, in effect, abandoned the employment. She claimed that the letter was misinterpreted.
The applicant was asked about her personal relationship with the applicant and his family. She denied anything other than a normal business or employment relationship. She later admitted regularly going out to dinner with the first respondent but said that she was told beforehand that these were “business meetings”. She denied buying gifts for the first respondent’s daughter, Vicki Su. She was then shown gifts she had bought Vicki. She claimed the first respondent had arranged for her to buy those things. The applicant denied that she was Vicki Su’s godmother and asserted that Vicki “just called me that way”.
The applicant claimed that she was paid nothing during the entire course of her employment. Later she admitted being paid $300. Still later, she admitted being paid $10,000. The applicant denied demanding money as a precondition of marriage in August 1997, and asserted that her financial situation was better than that of Mr Su. She claimed to own a five-bedroom home in Miranda. Then she said her ex husband owned it. Then she said that she owned it but was transferring ownership to her children. A title search submitted by the respondents on 5 November 2001 shows the applicant as the joint owner of a property at Yowie Bay.
The applicant made the most serious allegations against the first respondent but, when tested on the details, her evidence constantly shifted from one direction to the next. When pressed for details she claimed that she could not remember, or said that the conduct occurred so often she could not identify all details. The dates she chose were dates that could be easily recalled, such as 1 January, or her birthday or Chinese National Day. The applicant asked the Court to accept that she endured two years of continuous and gross sexual harassment, and no wages. She claimed that she was repeatedly raped. She admitted that she made no complaint to the Police about her treatment for two years, until shortly before making her complaint to HREOC. The following exchange took place between the applicant (speaking through an interpreter) and Mr Geikie, for the respondents, about the alleged police complaint of rape:
MR GEIKIE: Which police station did you report the offence to?
THE WITNESS: Hurstville.
MR GEIKIE: Do you remember the name of the police officer?
THE WITNESS: I don’t remember because my English is poor.
MR GEIKIE: Did he have a police uniform on?
THE WITNESS: Probably not.
MR GEIKIE: Did you give a statement to the police officer?
THE WITNESS: He gave me a card.
MR GEIKIE: Did you give a written statement to the police officer?
THE WITNESS: Not the first time.
MR GEIKIE: Did you go more than one time to Hurstville Police?
THE WITNESS: Two times.
MR GEIKIE: Did you give a statement the second time?
THE WITNESS: Yes.
MR GEIKIE: Do you remember the officer you saw on that occasion?
THE WITNESS: No.
MR GEIKIE: Did you have an interpreter with you on that occasion?
THE WITNESS: Yes, a friend of mine acted as the interpreter.
MR GEIKIE: What was your friend’s name?
THE WITNESS: I don’t want to tell you.
MR GEIKIE: Well, I want to know what was the name of your friend who interpreted what you had to say to the police at Hurstville?
THE WITNESS: He’s just an ordinary person so I don’t want to drag him into this case.
HIS HONOUR: It is a material issue in my view, Ms Wong, so I do require you to provide the name of the person if you can remember.
THE WITNESS: His name is Victor.
MR GEIKIE: Does Victor have a second name or surname?
THE WITNESS: I – I don’t know, we just call each other Peter or Victor, the surname I don’t know, his surname.
MR GEIKIE: Well, which is it? Peter or Victor?
THE WITNESS: Victor.
MR GEIKIE: Are you Peter? Where does Peter come from?
THE WITNESS: What I mean is that we normally just call the other people their name only, such as Peter or Victor; we never asked for their surname.
MR GEIKIE: Does Victor have an address?
THE WITNESS: I don’t know.
MR GEIKIE: Do you know where he lives? What suburb?
THE WITNESS: I’m not certain.
MR GEIKIE: How did you get in contact with Victor to ask him to come to the police station?
THE WITNESS: He is a friend of my friend.
MR GEIKIE: So you asked a friend to contact Victor?
THE WITNESS: Yes.
MR GEIKIE: Did the police give you a copy of your statement?
THE WITNESS: No.
MR GEIKIE: Did you sign the statement?
THE WITNESS: No.
MR GEIKIE: Why not?
THE WITNESS: I wasn’t asked to sign for it.
MR GEIKIE: I suggest that is not true.
THE WITNESS: I don’t know.
MR GEIKIE: What don’t you know?
THE WITNESS: I mean, I didn’t know at the time I was required to sign a statement.
MR GEIKIE: The police officer would have asked you to sign this statement.
THE WITNESS: Well, I don’t know, but I ---
MR GEIKIE: Was the police officer a male or a female?
THE WITNESS: A male. The first time it was a female.
MR GEIKIE: Do you have the card from the police officer?
THE WITNESS: Yes.
MR GEIKIE: Do you have it here with you?
THE WITNESS: Yes, at my solicitor’s place.
MR GEIKIE: I see. Did the police officer write any numbers on that card?
THE WITNESS: Yes, he should have.
MR GEIKIE: When were you given the card?
THE WITNESS: 1999.
MR GEIKIE: Yes; in January, February, March?
THE WITNESS: Should be in November. Sorry, December. In December. On 9 December.
MR GEIKIE: Initially you said you saw the police in August of ’99. Do you remember that?
THE WITNESS: I have been there twice.
MR GEIKIE: Yes; first time no card.
THE WITNESS: First time, yes there was a card.
MR GEIKIE: Do you have that card?
THE WITNESS: No, I lost it.
MR GEIKIE: I see. Ms Wong, you must have been surprised the police did not investigate your allegations?
THE WITNESS: I am not surprised because my English is not very good.
MR GEIKIE: You had an interpreter?
THE WITNESS: The first time it was a very – just a few very simple questions and I wasn’t required to sign anything.
MR GEIKIE: On the second occasion, you had an interpreter. You had – you gave a statement which was interpreted into English; is that right?
THE WITNESS: The police officer asked me some questions and he took some notes, but I hadn’t signed anything.
MR GEIKIE: Have you heard again from the police about this matter?
THE WITNESS: No.
The applicant’s evidence is unbelievable. The applicant produced no documentary evidence of her complaint to the police. I draw an inference that such documentary evidence, if it exists, would not have assisted her. In all probability she invented the person “Victor” during cross-examination. In all probability she chose the name “Victor” because it was her former barrister’s name, Dr Victor Wan. I am prepared to accept that the applicant did visit the police at the times alleged, but I conclude that these visits were more a matter of form than substance, so as to provide some evidence of a complaint.
The evidence of the applicant was entirely uncorroborated. It was contradicted by the evidence of six witnesses for the respondents, and by documents she admitted signing. The cross-examination of the applicant destroyed her credibility. I have concluded that the applicant is not a witness who can be believed upon her oath.
The applicant admitted undergoing psychiatric treatment during 2001. She denied having a history of mental illness going back some years, but asserted that her psychiatric problems began on her birthday in 1996, when she was allegedly harassed by Mr Su.
The respondent’s case
The respondents rely upon the affidavit of William Su, made on 22 June 2001, the affidavit of An Quing Liu, made on 21 June 2001, the affidavit of Vicki Su, made on 20 June 2001, the affidavit of June Su, made on 20 June 2001, the affidavit of Jason Su, made on
20 June 2001 and the affidavit of Alan Nguyen, made on 2 July 2001. Essentially, the respondents’ case is that in January 1993 Mr Su divorced his wife and that in February or March 1996 Mr Su contacted the applicant after obtaining her particulars through an introduction agency. They say that in March and April 1996 a personal relationship developed between the applicant and Mr Su and that in early 1997 to May 1997 the applicant became godmother to Mr Su’s daughter Vicki and that the parties discussed marriage. They say that in June 1997 the applicant disclosed to Mr Su that she was married and needed to get a divorce and to sell her beautician business. They say that in July 1997 Mr Su paid the applicant $10,000 to purchase equipment and furniture from the applicant’s business and that on 16 July 1997 the applicant commenced working under the trading name O B Opal Beauty Training Centre, a business name owned by the second respondent. They say that in August 1997 the applicant demanded further money or real estate from Mr Su as part of any marriage proposal and that the relationship between the parties broke down.
They say that on 13 October 1997 the applicant ceased employment with the second respondent and that on 31 October 1997 Mr Su received a letter from the applicant terminating their relationship and confirming the termination of the contract of employment. In that letter the applicant made no complaint of discrimination or harassment and made no reference to being owed any money. The letter is a frank admission of an intimate personal relationship which was being terminated. The respondents say that the applicant contacted Mr Su again in November 1999 and demanded money. They say that further money demands were made in December 1999 and that following the rejection of these demands the applicant made her complaint to HREOC.
Mr Su was cross-examined upon his affidavit and I found him to be an honest and reliable witness. When pressed on matters of detail Mr Su gave logical and consistent answers, indicating that he was recalling real events, not fabricated ones. By agreement, the other deponents were not cross-examined.
Consideration of the issues
There is no evidence before the Court of any sexual discrimination being suffered by the applicant, other than alleged sexual harassment. The SDA provides that one person sexually harasses another if:
… he or she makes an unwelcome sexual advance or unwelcome request for sexual favours to the person harassed or engages in other unwelcome conduct of a sexual nature in relation to the person harassed; and
… in the situation a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
The relevant elements for the purposes of s.28A are:
a)conduct of a sexual nature;
b)the conduct must be unwelcome;
c)the person harassed is or would be offended, humiliated or intimidated by the conduct; and
d)having regard to all the circumstances, a reasonable person would have anticipated that the person harassed would have felt this way.
It is conceded by the respondents that the applicant and Mr Su engaged in sexual relations over a considerable period. Accordingly, there is no doubt that the first respondent engaged in conduct of a sexual nature. I accept, however, the evidence of the respondents that a consensual relationship developed between the applicant and Mr Su. Mr Su was looking for a marriage partner and sought out the applicant. I find that the motivation of the applicant in responding to Mr Su’s approaches was mixed. His approaches were reciprocated and a genuine relationship developed between them. At the same time, however, the applicant was interested in an employment or business relationship with Mr Su and the second respondent. The personal relationship between Mr Su and the applicant and the business relationship between the applicant and the second respondent were intertwined. As complications developed in the relationship between Mr Su and the applicant that personal relationship cooled and this in turn adversely affected the business relationship between the applicant and the second respondent.
I have no reliable evidence before me that the applicant found the conduct of Mr Su to be unwelcome. The relationship between the parties was voluntarily entered into and continued for a considerable period. The applicant has made the most serious allegations against Mr Su of sexual assault and I reject those allegations entirely. The applicant’s evidence in this regard cannot be believed. That evidence did not stand up to any analysis upon cross-examination. The allegations of sexual harassment amounted to a farrago of lies. I find that the allegations made by the applicant against the first respondent were motivated by malice as a result of the ending of their personal and business relationship. The applicant, having been disappointed in her aim to develop a personal and financial relationship with Mr Su, demanded money. When those demands were rebuffed the applicant concocted complaints of sexual harassment in order to put pressure upon Mr Su. The applicant is not a victim in these proceedings. If there is a victim it is the first respondent, Mr Su. The first respondent did not engage in sexual harassment against the applicant within the meaning of the SDA and accordingly her application against him fails. It necessarily follows that the application against the second respondent must also fail.
Costs
The applicant has been wholly unsuccessful in these proceedings. The application was pursued in a desultory way by the applicant and in the knowledge that the allegations made by her were untruthful. Accordingly, the application must be dismissed with costs. In addition, it is appropriate in the circumstances that the Court express its strong disapproval, both of the fact that the application was made at all and also the manner in which it was pursued. Applications of this nature, based upon untruthful evidence, are apt to bring anti-discrimination legislation into disrepute, and do a grave disservice to others wishing to pursue a genuine grievance. The respondents should not be out of pocket in having dealt with this application. Accordingly, costs should be paid on an indemnity basis.
As to the costs thrown away by reason of the vacation of the hearing dates on 8 and 9 August 2001, it is apparent that the applicant’s solicitors were unprepared for the hearing, notwithstanding efforts by the applicant’s former solicitor, verified by affidavits, to assist them. I was told that more time was needed to prepare the applicant’s case, however nothing other than her original application and supporting affidavit, filed on 9 February 2001, were ever presented. When the hearing finally began on 30 August 2001 several hours were wasted because the solicitors were still unready, and Mr McCluskey was severely embarrassed. This Court expects better from legal practitioners. If the solicitors had made more of an effort to prepare their client’s case, it should have become apparent to them that the case was baseless. Mr McCluskey was only briefed to appear at the last moment and I place no blame on him.
Pursuant to Rule 21.07 of the Federal Magistrates Court Rules the Court is entitled to make an order for costs against the solicitors. I invited submissions on this matter on 5 November 2001 but I have received nothing from the solicitors.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 November 2001
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