Case: Huang v University of New South Wales &amp; Ors [2008] FMCA 11
Outcome: referred to
The appellant, Ms Huang, appeals from a decision of the Federal Magistrates Court dismissing her application against the first, second and third respondents: Huang v University of New South Wales &amp; Ors [2008] FMCA 11. The amended notice of appeal raises 61 grounds of appeal and extends to some hundreds of pages. Ms Huang has also filed submissions and an 'Issues Paper'. This is in addition to affidavit material filed in the appeal together with the extensive factual material that was before Driver FM. Despite my urging, Ms Huang seemed unable to reduce or simplify her contentions in any meaningful way. There was a lack of focus and much in the way of irrelevant and repetitive material that made it difficult to ascertain matters relevant to this appeal. 2 Federal Magistrate Driver expressed the difficulties he had in identifying the real issues in the mass of material filed and presented by Ms Huang. It is apparent that the case proceeded in the Federal Magistrates Court (as in this Court) in a way which was, as his Honour noted, ' exceptionally protracted, with far more material filed than was necessary or useful ' (at [63]). 3 I referred the matter to a Registrar of the Court for a case management conference in an attempt to isolate the issues in the appeal. By consent the following issues were elucidated: Issue 1 Whether His Honour erred in not giving appropriate weight to the evidence submitted in the proceedings. Issue 2 Whether His Honour erred in not taking into account crucial evidence and took into account submissions that misinterpreted the evidence or were contrary to the relevant facts. Issue 3 Whether His Honour did not give sufficient time for the appellant to complete her cross-examination of the respondents' witnesses. 4 At the hearing of the appeal Ms Huang seemed to have great difficulty in confining herself to or directing her submissions to the issues that had been identified. She appeared in person and made her submissions in English. A Cantonese interpreter was present at all times to assist Ms Huang and to ensure that she understood everything that was being said and that she was able to present her submissions without the difficulty of not being able to think of a word or an expression. 5 Like Driver FM, I have addressed the issues that I have discerned from the material and submissions advanced by Ms Huang; I have also had the advantage of the Federal Magistrate's reasons and summary of the evidence before him. 6 The nature of Ms Huang's complaints and the factual background are well set out in the Federal Magistrate's reasons for judgment. As an introduction and background, His Honour explained: 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. 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. [Federal Magistrate Driver] ruled that [he] had no jurisdiction to entertain the application insofar as it was based on the victimisation allegations [Huang v University of New South Wales &amp; Ors (No 2) [2006] FMCA 220 ] . However, [Federal Magistrate Driver] 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. [Federal Magistrate Driver] confirmed that [he] could not consider allegations of victimisation which post date the termination of the complaint. 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.