Huang v University of New South Wales

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application to lead fresh evidence pursuant to a notice of motion entitled 'Notice of Motion (amended) - 5' filed in court today that lists 73 affidavits upon which Ms Huang, the appellant, seeks to rely in order to lead fresh evidence. 2 During the course of this morning's hearing she has taken me through a large amount of material on some of which I have ruled during the debate. The basis upon which the court may admit fresh evidence is set out in s 27 of the Federal Court of Australia Act 1976 (Cth) which provides as follows: 'In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken: (a) on affidavit; or (b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or (c) by oral examination before the Court or a Judge; or (d) otherwise in accordance with section 46.' 3 Moreover, O 52 r 36 of the court's rules also applies to an application to lead fresh evidence. Ms Huang has made a large number of earlier applications on motions which she has filed that have been returned this morning but which I understand are consolidated in the current notice of motion to which I have just referred. Grounds upon which an application to lead fresh evidence is advanced are to be stated in an affidavit pursuant to O 52 r 36(4). The material which Ms Huang has taken me to does not satisfy me that any of it would be relevant or admissible. 4 The principles upon which the discretion under s 27 is to be exercised were considered by the High Court in CDJ v VAJ (1998) 197 CLR 172; see at 200-201 [107]-[110]. In essence, the court is at large in considering whether, under the section, fresh evidence ought be received, but a number of discretionary considerations that have been developed by the common law may be relevant to the exercise of that discretion, although not in the way that the common law fixed as binding rules. The discretion, as McHugh, Gummow and Callinan JJ say in the passage to which I have referred, is more ample than the common law provided. The issues involved in the appeal, as their Honours note (197 CLR at 201 [108]) will point to the considerations which are or are not extraneous to the exercise of the power. 5 Their Honours went on to point out that the power is remedial in nature and its principal purpose is to give a Full Court or a judge of the court exercising the appellate powers of the Court, as in this case, a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. 6 In Williams v Grant [2004] FCAFC 178 at [37] a Full Court of this court said that the power to receive further evidence was discretionary and that whilst there were no fixed rules which would govern the exercise of the discretion, matters which were usually relevant include whether the applicant exercised due diligence in attempting to procure the evidence before the trial but the evidence was not available at trial, and if the evidence had been available at trial the opposite result would have been obtained. In VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 186 at [18], another Full Court held that the exercise of the power under s 27 attracted a relevant consideration that, amongst other things, would be actuated if the evidence proffered would be likely to have produced a different result had it been available at the trial. 7 The issues in this appeal involve factual determinations made by the Federal Magistrate as to whether on three occasions in 1999, 2000 and 2001 respectively the appellant was or was not exposed to some form of sexually harassing behaviour by the fifth respondent, Mr Xiao. Much of the material sought to be tendered before me today was simply a form of restatement of Ms Huang's evidence before his Honour or a further elaboration of it, none of which could meet any possible basis for its reception as fresh evidence. It would not be in the interests of justice to allow Ms Huang to simply rehash or relitigate the same case that she had agitated before his Honour on this further material. There is a public interest in the finality of litigation and the acceptance of the courts' decisions when they have been made after a full and fair final hearing. 8 While it is understandable that litigants who have results which disappoint them would seek to pursue all available avenues to have those results reversed where they see injustice to themselves, and I have no doubt Ms Huang genuinely feels that she has suffered a substantial injustice, the court cannot allow its processes to be used to permit merely a relitigation on the same substantive material. In my opinion, much of what was put before me involved such matters. Ms Huang put that she was not a lawyer and that therefore she may have made tactical or strategic errors in what she chose to tender before his Honour in the hearing below. Likewise, she may have made strategic errors in the way she approached the obtaining of evidence, including her decisions or lack of knowledge in whether she should or should not issue subpoenas to persons whom she regarded as witnesses who could come to court to give evidence. 9 One example is the material she sought to lead about a Mr Park referred to in paragraph 41 of her affidavit of 4 July 2005. As was pointed out, that material was in fact before his Honour (see appeal book C page 391). Then Ms Huang spent considerable time seeking to deal with the issue of the three paragraphs in an affidavit of Ms Frank of 14 January 2005, which his Honour admitted, but about which Ms Huang wished to tender further material either in that affidavit or otherwise or to complain that his Honour had not permitted her to cross-examine Ms Frank. While those matters may be issues that could arise as a wrongful rejection of evidence or a wrongful reception of evidence issue, they do not raise issues as to fresh evidence. 10 Ms Huang then sought to tender documents relating to the fact that she had been employed part time from 1999 at the University. She produced a deal of material that dealt with that. See, for example, appeal book C pp 195-199 and her affidavit sworn 6 June 2005, par 2, and exhibit HHAP to that affidavit. She also relied in this respect on material in her affidavit of 29 November 2005 headed 'Affidavit - Telstra Reports and E-mail', and to annexure HHQ, which was an email to her from the fifth respondent in the proceedings below dated 8 December 1999 relating to the fact that there would be no work at the University between Christmas and 3 January the next year in 2000. 11 These matters were not raised before his Honour in the context of a claim that the harassment occurred in an employment context where both Mr Xiao and the appellant were employees of the university. Whether or not that issue was clearly flagged, which it appears, prima facie, it may well have been, I am satisfied that no fresh evidence should be allowed on appeal in respect of it for two reasons. First, the notice of appeal does not raise this issue, but I accept that had Ms Huang sought leave and were otherwise entitled, she may have been able to amend the notice of appeal. But the second and the principal reason for which I reject the evidence is that I am of the opinion that it could make no possible difference to the outcome of the proceedings on appeal. The proceedings below involved below contested issues of fact as to whether or not his Honour was correct to have accepted Mr Xiao's account or not to have been satisfied by Ms Huang's account of the incidents in which sexual harassment was alleged to have occurred. 12 The appellant also sought to rely on medical reports including that of Dr Sachdev of 14 June 2005. She complained that Dr Sachdev had previously prepared a report in August of 2003 but that she had not been able to receive such a report or to tender such a report before his Honour. She tendered some evidence to suggest that as late as 1 April 2005 within the organisation in which Dr Sachdev worked, she was making attempts to have the earlier report released or a report provided detailing her medical condition. Again, I am of opinion that her medical condition, so far as it was known to his Honour, was adequately before his Honour or could have been placed before his Honour by the appellant. 13 I am of opinion that the material sought to be raised as fresh evidence is either irrelevant or of no relevant probative value and would not have been able to affect the result had it been available and tendered at the trial or on appeal. For those reasons I have rejected the material. I have not found it necessary or desirable to go through every single piece of evidence which Ms Huang sought to put before the court; that would only be an enormously complex, lengthy and unnecessary exercise. In the course of the hearing this morning I made a number of rulings dealing with evidence. During the debate I sought to make clear to Ms Huang, when I was rejecting the material, the basis upon which I did so. 14 For all these reasons I reject the application to adduce any further evidence on the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.