Huang v University of New South Wales

Federal Court of Australia (Full Court)|2010-08-25|Before: Katzmann JJ

The appeal be dismissed.
The motions the subject of the notice of motion filed on 27 May 2010 be dismissed.
The motion the subject of the notice of motion filed on 2 July 2010 be dismissed.
There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

The nature and history of the proceeding 1 This appeal is from an order of a single judge of the Court, dismissing an application pursuant to ss 7 and 9A(2) of the Foreign Evidence Act 1994 (Cth) ("the Foreign Evidence Act"). The appellant, Ms Huang, seeks orders that will assist her in obtaining evidence from a person in the Republic of Korea, for the purposes of a proceeding in which she is involved in the Federal Magistrates Court of Australia. The appeal raises the question whether the learned primary judge denied Ms Huang procedural fairness when, in the afternoon, in the absence of an interpreter who had been available to assist Ms Huang during the morning of that day, he continued hearing the application, pronounced reasons for judgment and made orders. Ms Huang said that she did not understand a crucial aspect of the primary judge's reasons for judgment, which was that his Honour proposed to dismiss the application unless the date fixed for trial of the proceeding in the Federal Magistrates Court had been vacated, when the application came on for mention eight days later. When that mention took place, and Ms Huang had not applied to vacate the trial date, the primary judge dismissed the application under the Foreign Evidence Act. His Honour took the view that the application lacked utility, because the necessary formalities for the taking of evidence in Korea could not be carried out before the start of the trial of Ms Huang's proceeding in the Federal Magistrates Court. His Honour therefore did not consider the application on its merits, and Ms Huang has invited this Court to do so. 2 In the proceeding in the Federal Magistrates Court, Ms Huang alleges that she was the victim of sexual harassment whilst studying for a PhD at the first respondent, the University of New South Wales ("UNSW"). She claims she was subjected to such harassment by the second respondent, Fuchun Xiao, who is alleged to have been employed at UNSW at the time. Ms Huang alleges that, on several occasions in 1999, 2000 and 2001, Mr Xiao confronted her with pornographic images on a computer screen or computer screens, which she did not wish to see, and which disturbed her. 3 Ms Huang's proceeding in the Federal Magistrates Court has a long history. In 2005, it was the subject of a judgment by Driver FM, who dismissed Ms Huang's application for damages. See Huang v University of New South Wales [2005] FMCA 463. Ms Huang appealed successfully to this Court. For reasons unrelated to the subject-matter of the present appeal, Rares J allowed the appeal and remitted the matter to the Federal Magistrates Court. See Huang v University of New South Wales & Ors (No. 3) [2006] FCA 626 (2006) 154 FCR 16. The proceeding was then allocated to Cameron FM. 4 At the time when Ms Huang made her application to this Court under the Foreign Evidence Act, the trial of the proceeding in the Federal Magistrates Court was fixed to commence on 29 March 2010. On 1 March 2010, Ms Huang had applied to have that trial date vacated for a number of reasons, including the reason that her own mental health was so poor as to prevent her from being able to conduct the trial properly on her own behalf. The Federal Magistrates Court declined to vacate the hearing date. Ms Huang gained the impression that she would have succeeded in vacating the trial date if she had been able to produce a medical certificate from her treating psychiatrist, instead of the medical certificate from a general practitioner on which she had relied. 5 On 4 March 2010, Ms Huang appeared in person to make her application to the primary judge. Counsel appeared for UNSW. There was no appearance for Mr Xiao. In the course of the afternoon, the primary judge ordered that the proceeding be stood over for directions on 12 March 2010, and made no order as to costs, for reasons that his Honour then gave. See Huang v University of New South Wales [2010] FCA 208. The application again came before his Honour on 12 March 2010, on which occasion his Honour dismissed the application and again made no order as to costs. The reasons for judgment that his Honour pronounced on that occasion are published as Huang v University of New South Wales (No. 2) [2010] FCA 299. 6 On the same day, 12 March 2010, Ms Huang applied again to the Federal Magistrates Court to vacate her trial date, relying on medical evidence that she suffered from a mental condition that hindered her preparation for the case. On 23 March 2010, the Federal Magistrates Court vacated the trial date. See Huang v University of New South Wales (No. 3) [2010] FMCA 468. On 1 July 2010, at a directions hearing, Ms Huang told the Federal Magistrates Court that she was well enough to proceed with the trial. In the meantime, however, she had instituted this appeal, which was listed for hearing on 9 August 2010. She submitted to Cameron FM that the trial should not go ahead until the result of the appeal was known. Cameron FM found that Ms Huang was fit to conduct the trial, and declined to postpone it further because of this appeal. See Huang v University of New South Wales (No. 4) [2010] FMCA 474. The trial therefore commenced on 26 July 2010, and is part-heard. It is scheduled to resume on 25 August 2010. 7 On 24 March 2010, when she filed her notice of appeal, Ms Huang also filed an affidavit, concerning the absence of the interpreter during the afternoon of 4 March 2010, when the primary judge was dealing with her application under the Foreign Evidence Act, and with her lack of knowledge, until 12 March 2010, of any obligation to file her further application to vacate the trial date before 12 March 2010. On 16 April 2010, Ms Huang filed an amended notice of appeal, substantially longer than the original, with a number of documents attached to it. On 27 May 2010, she filed a notice of motion, seeking leave to file an affidavit in support of various grounds of appeal, leave to amend the orders sought in the notice of appeal and leave to file a second amended version of the notice of appeal and supporting affidavit. On 2 July 2010, she filed a further notice of motion, seeking an order staying the Federal Magistrates Court proceeding until the evidence she seeks from Korea is ready to be used at the trial or until this appeal is finalised. Ms Huang also applied for leave to appeal from the judgment of the Federal Magistrates Court on 1 July 2010, refusing to adjourn the trial until the outcome of this appeal is known. On 15 July 2010, Buchanan J dismissed the application for leave to appeal and adjourned the notice of motion of 2 July 2010 to the hearing of the appeal. See Huang v University of New South Wales [2010] FCA 738. The notice of motion filed on 27 May 2010 was also made returnable at the hearing of the appeal.

The nature of the evidence in question 8 Ms Huang alleges that, on a day in August or September 2001, she wished to download some software to her computer in the School of Safety Science at UNSW, but did not know how to effect the download. She left her office and approached two other people in another office in the same area. One of these was Daljae Park, who was then a PhD student and is now a professor at a university in Korea. The other person present was another Korean, Dr Tae Jeong Kim. Each said to her that he could not help her, but Dr Kim suggested Mr Xiao, who was in the vicinity, may be able to. Mr Xiao agreed to help and followed Ms Huang into her office. It was there that he brought up onto her computer screen pornographic images. 9 When she was attempting to gather evidence to support her claim of sexual harassment, Ms Huang made several approaches to Professor Park, while he was still in Australia. She asked him whether he would make a statement about the incident when she said Mr Xiao followed her to her office. Professor Park declined to make a statement. On 17 September 2004, Ms Huang sent him an email, including the following: Last time when I saw you in your office, I asked you: "do you remember in about August 2001 when I asked you and Mr Taiyoung Kim to help me to install a reading software from internet to my comuter, you both said you did not know how to do it, and then Mr Fuchun Xiao provided me the help and followed me into my office. " You answered to me: "yes". Do you remember the date? In August or September 2001? I very appreciate it if you could e-mail back to me and answer the question for me. Your help is very important for me. On 20 September 2004, Professor Park replied to this email saying "Yes I remember". 10 Ms Huang followed up this exchange by drawing up a statement in the form of an affidavit, which she invited Professor Park to swear. The affidavit included the following paragraph: In 2001 Mr Taiyoung Kim's and my offices were in room 119 and Ms Hong Cui Hunag's office was in room 123. One day in about August or September 2001, Ms Hong Cui Huang came into my office, room 119, and asked me to help her to install software with reading function into her computer, but I told her I did not know how to do it. Ms Hong Cui Huang turned to ask Mr Taiyoung Kim, and Mr Taiyoung Kim said he did not know it and he said that Mr Fuchun Xiao might know it. Then Ms Hong Cui went to the other side of the office and talked with Mr Fuchun Xiao, and Mr Fuchun Xiao followed Mr Hong Cui Huang to her office to provide her the assistance. 11 Professor Park swore the affidavit on 16 February 2005 before a New South Wales Justice of the Peace. 12 Ms Huang's draft letter of request for the taking of evidence in Korea asks that the evidence be by video link or, if that cannot be accomplished, by audio link, and that Professor Park be cross-examined about his corroboration of Ms Huang's account of the incident in which she says Mr Xiao followed her to her office. 13 The evidence Ms Huang seeks to obtain from Professor Park appears to go no further than to assist her in establishing that, on the one occasion in question in August or September 2001, Mr Xiao had the opportunity to harass Ms Huang as she complains he did, because he went to her office with her. If Mr Xiao were to deny that he had such opportunity, and if the evidence of Ms Huang and Professor Park that he did have such opportunity were to be accepted, the result would be a finding that Mr Xiao had falsely denied opportunity. In a case in which the outcome might depend upon the acceptance of assertion or denial on one side or the other, a finding of a false denial of opportunity could assist in tipping the balance in favour of Ms Huang's assertion. From the submissions that he made on appeal, it appears that Mr Xiao might well be denying that he had opportunity. He says that, by 2001, he had completed his PhD and was no longer in the School of Safety Science, but was in another part of UNSW.

The provisions of the Foreign Evidence Act 14 Section 9A of the Foreign Evidence Act provides: The Federal Court of Australia may, on the application of a party to a proceeding before the Federal Magistrates Court in a matter other than a child support or family law matter, exercise the same power to make an order of the kind referred to in Division 1 as the Federal Court of Australia has under that Division for the purpose of a proceeding in the Federal Court of Australia. 15 Section 7 of the Foreign Evidence Act provides: (1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia: (a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or (b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or (c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken. (2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following: (a) whether the person is willing or able to come to Australia to give evidence in the proceeding; (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding; (c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order. The phrase "superior court" is defined in s 3(1) of the Foreign Evidence Act. The definition includes the Federal Court of Australia (but not the Federal Magistrates Court). 16 It is clear from the reasons for judgment of the primary judge on 4 March and 12 March 2010 that his Honour did not get as far as dealing with the matters referred to in s 7(2) of the Foreign Evidence Act. His Honour made no finding as to whether Professor Park is willing or able to come to Australia to give evidence. His Honour did not reach any conclusion as to whether the proposed evidence is material to any issue to be tried in Ms Huang's proceeding in the Federal Magistrates Court. His Honour did not consider whether justice would be better served by granting or refusing the order. Instead, his Honour's judgment was based solely on the proposition that there was no utility in granting the order, because the time that would be taken up by the formalities that had to be satisfied, and the practicalities that would arise, before the evidence of Professor Park could be secured would be so great that the evidence could not be available by the time the trial in the Federal Magistrates Court was due to begin.

Denial of procedural fairness 17 In order to determine whether Ms Huang's claim that she did not understand that she was required to make her further application to the Federal Magistrates Court for the vacation of the trial date before 12 March 2010, in order to avoid having her application under the Foreign Evidence Act dismissed, it is necessary to review in some detail the events of 4 March and 12 March 2010. For this purpose, all parties to the appeal indicated that they were content for the Court to obtain the transcript of proceedings on each of those days, and to refer to it. We have done so. 18 Quite early on the morning of 4 March 2010, the primary judge asked Ms Huang whether she proposed to address the Court through the interpreter or not. Ms Huang replied: I prefers not use the interpreter but I have the mental condition. I listen is very poor. I need your - I need - when your Honour or the another parties speak a little bit then he can tell me what has been told. A short while later, the following exchange occurred: HIS HONOUR: It is only a question of whether we communicate through the interpreter or whether you are able to communicate in English. MS HUANG: Yes, I prefer in English but sometime - - - HIS HONOUR: Well, we will see how we go. Not long afterwards, the primary judge indicated that he did not understand something that Ms Huang had said, and expressed the view that it would be "much better if we operate through the interpreter." This suggestion appears to have been ignored. On three more occasions during the morning, his Honour indicated that he did not understand something that Ms Huang was saying. At another point, when Ms Huang was attempting to explain why she was tendering a particular document, she was endeavouring to paraphrase the response of Mr Xiao to her allegations. She indicated that Mr Xiao claimed her allegations were "rubbish". His Honour asked her to repeat what she was saying. The interpreter was then used and translated Ms Huang as saying "What he said is, "all I said is rubbish."" 19 In the afternoon, there was another occasion on which the primary judge said that he did not understand something Ms Huang was saying, and asked her to say it again. Shortly after that, the transcript records Ms Huang as having said: Certainly because the interpreter here [sic] can your Honour speak slowly for me? I don't - I didn't understand what your Honour said. Although the negative is missing from the first sentence of this passage, it seems clear that Ms Huang was referring to the absence of the interpreter during the afternoon session, and asking for the primary judge to speak slowly. Neither UNSW nor Mr Xiao took issue on appeal with the proposition that the interpreter was not present during the afternoon. 20 Not long after that, the following exchange occurred: HIS HONOUR: I will decline to make an order at this stage but I won't dismiss the application. I will stand it over so that you can renew it if you wish at some later stage. MS HUANG: So can - can your Honour - so, Your Honour - yes, your Honour say you will make order today? HIS HONOUR: I said I won't make an order today. MS HUANG: Yes. Don't make order today. Yes. HIS HONOUR: I will refuse to make an order today but I won't dismiss the application. MS HUANG: Your Honour not make order today. I would like to - - - HIS HONOUR: Look, just sit down and I'll give reasons for what I'm proposing to do. MS HUANG: So can I have the - waiting for interpreter please. HIS HONOUR: We don't have an interpreter at the moment. MS HUANG: I think they are coming soon. HIS HONOUR: Well, Ms Huang. MS HUANG: Because I don't understand. HIS HONOUR: What I propose to do is to stand this matter over for several weeks. MS HUANG: Yes, yes. HIS HONOUR: But on the basis that at the moment, unless something changes, I will refuse to make an order. MS HUANG: Your Honour say - - - HIS HONOUR: But if - if in the next two weeks or so the Federal Magistrates Court decides to vacate the hearing then I will allow you to renew your application. MS HUANG: Yes. I will ask to vacate the hearing date. HIS HONOUR: Yes, well you take whatever course you want to, but you have told me that you want to have the matter - have the - make a further application to the Federal Magistrates Court. [Emphasis added.] 21 Immediately before the primary judge began pronouncing his reasons for judgment, the transcript records Ms Huang as asking, "The interpreter coming?" 22 At [17]-[18] of the reasons for judgment of the primary judge of 4 March 2010, his Honour said: In the circumstances, I am not persuaded that an order should be made under s 9A, principally for the reason that I have already given, namely, that there would be no utility because the evidence would not be available for the hearing. However, against the possibility that the Federal Magistrates Court may be prepared to entertain a further application for the vacation of the hearing date, I propose to stand this matter over for several weeks to see whether or not there is any point in considering further the utility of making an order. Ms Huang has filed a notice of motion seeking substituted service of the initiating process on Mr Xiao. That motion is returnable before me on 12 March 2010. The convenient course, it seems to me, is to stand this matter over to 12 March 2010. If, at that stage, the fixture in the Federal Magistrates Court on 29 March 2010 has not been vacated, I propose to dismiss this application. If the hearing has been vacated, I will consider affording Ms Huang the opportunity of renewing her application. Whether a further indulgence will be granted may depend upon whether Mr Xiao appears and the extent to which Ms Huang will be able to persuade me that the evidence of Professor Park is likely to be of sufficient materiality to justify the cost and expense that may be involved in having him examined pursuant to letters of request. [Emphasis added] 23 After pronouncing his reasons for judgment, his Honour made the orders, including the order that the proceeding be "stood over for directions on 12 March 2010." 24 The way in which this chain of events occurred gives rise to a real chance that a litigant in Ms Huang's position on 4 March 2010 might have failed to understand that she was required to file her application in the Federal Magistrates Court to vacate the hearing date of 29 March 2010, or she would suffer the dismissal of her application under the Foreign Evidence Act without further consideration. Immediately after Ms Huang had indicated that she was having difficulty in understanding, his Honour said that he proposed to stand over the matter for "several weeks." He said that he would do this on the basis that "unless something changes" he would refuse to make an order. The next proposition was that "if in the next two weeks or so the Federal Magistrates Court decides to vacate the hearing" then his Honour would allow Ms Huang to renew her application. Even in the penultimate paragraph of his reasons for judgment, his Honour referred again to "several weeks" as the period for which he proposed to stand the matter over. The only point at which his Honour indicated clearly that, if the Federal Magistrates Court hearing had not been vacated by 12 March 2010, he proposed to dismiss the application was in the third and fourth sentences of [18]. 25 In her affidavit of 24 March 2010, filed with the notice of appeal, Ms Huang said that, without the interpreter, she was only able to hear parts of what the primary judge said. She heard the proposal to stand the matter over for several weeks, but did not hear the words in [18] of the reasons for judgment. Although she used the word "hear", it seems that Ms Huang was referring to her inability to understand all that was said, rather than actually to hear it. The claims made in her affidavit cannot be rejected out of hand. There were two references to "several weeks", one before and one during the reasons for judgment. The proposed period was diminished to "two weeks or so" prior to the reasons for judgment. These were simple phrases. The two sentences in which his Honour imposed the condition of securing the vacation of the hearing date prior to the mention on 12 March 2010 were in more convoluted language. It must be remembered that Ms Huang's first language was not English. Even though she declined to direct all her communications through the interpreter, as the primary judge had suggested on the morning of 4 March 2010, she had indicated that she was assisted in understanding what was said to her by using the interpreter. Her expressions of concern that the interpreter was absent in the afternoon went unheeded by the primary judge. 26 The situation was compounded by what occurred on 12 March 2010. The following exchange occurred: HIS HONOUR: Well, Ms Huang, I gather you haven't applied to vacate the hearing date before the Federal Magistrates Court; is that correct? MS HUANG: Not yet now. Your Honour, I just got- - - HIS HONOUR: You haven't made an application? MS HUANG: I going to do. I just - - - HIS HONOUR: No, no. You haven't done it yet? MS HUANG: Not yet, your Honour. HIS HONOUR: In those circumstances I think it's appropriate to dismiss your application. MS HUANG: Your Honour, yesterday I already got a certificate from my treating psychiatrist as support me - - - HIS HONOUR: No, no, Ms Huang, I stood the matter over last time to enable you to make another application to vacate the date if you wanted to. MS HUANG: Yes, I - - - HIS HONOUR: You haven't done that. MS HUANG: Yes, I - I - - - HIS HONOUR: Now, you haven't done that, have you? MS HUANG: I already prepare the document, your Honour. HIS HONOUR: No, you haven't made an application to the Federal - - - MS HUANG: Not yet, no. But I - - - HIS HONOUR: No. In that case I propose to dismiss the application. MS HUANG: Your Honour, I remember your Honour say in the hearing in the last time your Honour say if the Federal Magistrates Court vacates the hearing, your Honour allow me to come - - - HIS HONOUR: Yes, but you haven't made an application to do that. MS HUANG: But - but I just - because I need to make appointment with my treating psychiatrist, I can't just go there. I just got their certificate now. I'm going to lodge my application - - - HIS HONOUR: No, I don't want to hear about that. You haven't made an application to the Federal Magistrate - - - MS HUANG: But I doing, I doing. Yes, I - - - HIS HONOUR: Yes, all right. Yes, yes, thank you. You haven't done it yet, have you. MS HUANG: I've prepared. I already prepared. HIS HONOUR: No, all right. Well, I propose to dismiss the proceeding. MS HUANG: Your Honour, because last time your Honour did not tell me I had to lodge my application - - - HIS HONOUR: No, I don't tell you what to do. MS HUANG: But yes, I - yes, you say you stand over for a several week, you told me like this, in the last hearing. HIS HONOUR: Ms Huang, do you have the reasons that I gave? I'll give you a transcription of my reasons. MS HUANG: Your Honour - - - HIS HONOUR: And I invite you to read paragraph 18. [Emphasis added.] 27 This exchange is significant for several reasons. On 10 occasions, the primary judge cut off Ms Huang's attempts to explain to him why she had not lodged her application to vacate the trial date. She managed to refer to a certificate from her treating psychiatrist, for which she had needed to make an appointment with that psychiatrist. She referred to the fact that she had prepared the application to vacate the trial date. She protested that, on 4 March 2010, the primary judge had not told her that she was required to lodge her application. She referred to the period of "several weeks". The exchange is also significant for the proposition that Ms Huang had not had the edited reasons for judgment of 4 March 2010 until she was back in Court on 12 March 2010. This is consistent with the primary judge's associate's certificate of accuracy of those reasons, indicating that they were not available at all until 11 March 2010. 28 A short time afterwards, when Ms Huang attempted to tell the primary judge what she remembered, his Honour cut her off again and directed her to read [18] of his reasons for judgment. Ms Huang protested that the interpreter was not there at the time. 29 His Honour then stood down the matter and dealt with other matters during the morning. When it was called back on, Ms Huang was not in Court and did not respond to her name being called outside the Court. The court officer informed the primary judge that the interpreter thought that Ms Huang had gone downstairs and that the interpreter had gone to find her. The primary judge then raised with counsel for UNSW the question whether he should deal with the matter in the absence of Ms Huang. He indicated that he was reluctant to go beyond 12.45 pm, that he was prepared to adjourn for 10 minutes, but was not proposing to return during the afternoon to deal with the matter. Counsel for UNSW invited his Honour to dismiss the application. His Honour pronounced reasons for judgment and made an order dismissing the application. In the course of those reasons, after summarising what had occurred on 4 March 2010, his Honour said at [2]: When the matter was called on for hearing this morning, Ms Huang confirmed that she had not yet made any application to the Federal Magistrates Court to vacate the hearing date on 29 March 2010. She intimated that she intended to do so. Nevertheless, she has not, at this stage, done so, and the fixture for 29 March 2010 remains. In those circumstances, for the reasons that I previously gave, there is no utility in making an order under s 9A and, accordingly, the present application should be dismissed. 30 In her affidavit filed with the notice of appeal, Ms Huang said that she filed her application to vacate the hearing date in the Federal Magistrates Court "In the lunch time of 12 March 2010". When she returned to the primary judge's courtroom in the afternoon, she was told that his Honour had dismissed her application under the Foreign Evidence Act. She also said that, because of her previous mental condition, she had been sick and tired and had slept outside the courtroom to await the resumption of the hearing. 31 It is clear that the primary judge did not allow Ms Huang a proper opportunity to explain to him the reasons for not having procured the vacation of the trial date, or made an application to do so, before 12 March 2010. Had his Honour been prepared to listen to Ms Huang's explanation, he may have been persuaded that she had not understood the effect of what he had said at [18] of his reasons for judgment of 4 March 2010, but had been under the impression that she had a longer period in which to make the application. If his Honour had understood that, having obtained a certificate from her treating psychiatrist, and having prepared the application to vacate the trial date, Ms Huang was in a position to file it that very day, his Honour might have been persuaded to allow her further time to do so. If his Honour had allowed her further time, Ms Huang might have been able to persuade the Federal Magistrates Court to vacate the trial date (as she in fact did on 23 March 2010). The primary judge would then have had the opportunity to consider the merits of her application under the Foreign Evidence Act, particularly in relation to the matters that s 7(2) requires to be taken into account. 32 Ms Huang has therefore made out her ground of appeal that alleges that she was denied procedural fairness. It does not follow from this, however, that her appeal should be allowed. Other matters, including the merits of the application under the Foreign Evidence Act need to be considered.

The merits of the application 33 The remaining grounds of appeal involved attempts to address the merits of the orders of the primary judge. Ms Huang argued that, because the hearing date of 29 March 2010 was vacated, the ground of absence of utility in making the order had been removed. She made a number of complaints about the merits of arguments put by UNSW, accusing its counsel of misleading the primary judge. She also attempted to address the criteria referred to in s 7(2) of the Foreign Evidence Act, particularly that contained in s 7(2)(c), by arguing that justice would be better served by granting the order she sought. 34 In dealing with the merits, it is necessary for the Court to bear in mind that the primary judge's orders were made in the exercise of discretion. The manner in which an appeal court should deal with an appeal against an order made in the exercise of discretion is well established. It is expressed in the well-known passage in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 35 In order to succeed in relation to any of her substantive grounds of appeal, Ms Huang would have to establish error on the part of the primary judge of one or more of the kinds referred to in House. It is not sufficient for Ms Huang to invite this Court on appeal to adopt some preferable view of what should have happened. Still less is it for this Court to look afresh at the facts as they exist at the time of the hearing of the appeal, and to decide for itself how it would exercise the discretion in light of the present situation. 36 As is pointed out earlier, the primary judge did not reach any conclusion about the factors the subject of s 7(2) of the Foreign Evidence Act. His Honour's orders were based solely on the view that there was no utility in making the order sought by Ms Huang in view of the imminence of the trial date. This was a legitimate exercise of his Honour's discretion. If an order of the kind sought under the Foreign Evidence Act would not have availed Ms Huang, because the time necessary to observe the formalities of obtaining evidence from Korea was simply not available, there was no occasion for his Honour to proceed to consider the factors listed in s 7(2). The fact that the effect of the subsequent vacation of the trial date was to extend the time available does not lead to the conclusion that his Honour was in error. As his Honour did not consider the application of the factors in s 7(2) of the Foreign Evidence Act, it is not possible to make a finding of error, either on the facts (whether as a result of being misled by counsel for the UNSW or not) or in discerning on which side the justice of the case fell. 37 It follows that, in relation to the grounds of her appeal other than that relying on denial of procedural fairness, Ms Huang was bound to be unsuccessful.

The disposition of the appeal 38 The success of Ms Huang in relation to the procedural fairness ground, but the inevitability of her failure in relation to the other grounds, makes the question of the disposition of the appeal a difficult one. The trial of Ms Huang's case in the Federal Magistrates Court is now part-heard, and is scheduled to resume in the very near future. It would be inappropriate for the Court to allow the appeal on the procedural fairness ground, and to remit the matter to the primary judge, or to another judge, to be heard and determined again. The practical result is that the consideration of the factors in s 7(2) of the Foreign Evidence Act in relation to Ms Huang's application for the orders she seeks has again been overtaken by events. It would be equally inappropriate for this Court on appeal to consider for itself the application of those factors. Whatever result could be achieved by allowing the appeal and returning the matter for determination at the primary level could be achieved by a further application under the Foreign Evidence Act, if that should be necessary. Similarly, whatever result might be achieved by the Court deciding for itself whether an order should be made could be achieved by the making of a further application, if that should be necessary. 39 The UNSW informed the Court in an email to the judges' chambers, copied to Ms Huang, that the affidavit of Professor Park has already been admitted into evidence. When the trial of the proceeding in the Federal Magistrates Court resumes, it will be a matter for Cameron FM to decide how he deals with the tender of the affidavit of Professor Park and the exchange of emails between Ms Huang and Professor Park referred to in [9] above. His Honour will no doubt consider each document by reference to s 63 of the Evidence Act 1995 (Cth) ("the Evidence Act"). His Honour will be called upon to decide whether the words attributed to Professor Park in the affidavit, and the email exchange, constitute a previous representation by him, and whether he is a person who is "not available" to give evidence about the facts asserted. If so, the normal rule of evidence that would exclude hearsay evidence will not apply to the documents containing those representations, by virtue of s 63(2)(b) of the Evidence Act. His Honour will no doubt consider, by reference to s 170 of the Evidence Act, whether the circumstances that would permit Professor Park's evidence to be given by affidavit exist. That consideration will involve determining whether the requirements of s 173 of the Evidence Act have been satisfied. We note that counsel for UNSW informed the Court that he accepted that Professor Park was "unavailable" to give evidence within the meaning of that word in the Evidence Act. He also told the Court that he proposed to inform the federal magistrate of this concession. He indicated he would tell the federal magistrate that his client had had sufficient notice of the representations contained in Professor Park's affidavit for the purpose of s 67 of the Evidence Act. Mr Xiao did not give an indication of his position. 40 If there remains a requirement pursuant to s 27 of the Evidence Act that Professor Park be available for cross-examination by UNSW or Mr Xiao, Cameron FM will have to consider whether those parties consent to the Court dispensing with the application of s 27, pursuant to s 190(1)(b) of the Evidence Act, or whether his Honour himself will order that s 27 does not apply, in the exercise of the powers conferred on him by s 190(3) and (4). 41 If, at the end of this process, either UNSW or Mr Xiao were proposing to submit that Professor Park's evidence carried less weight because he was not available for cross-examination or either required him for cross-examination, his Honour might reach the conclusion that, in order to afford procedural fairness to Ms Huang, he would need to adjourn the trial further, so as to allow her time to make another application pursuant to the Foreign Evidence Act and to avail herself of an order that might be made on such an application, if one were to be made. Obviously, in making these remarks we do not seek to limit the federal magistrate's discretion in any way. 42 For these reasons, the appropriate order is to dismiss this appeal.

The notices of motion 43 Because it is inappropriate for this Court to deal with the grounds of appeal other than the ground alleging denial of procedural fairness, it is inappropriate to consider the notice of motion filed on 27 May 2010. No amendment to the grounds of appeal, or to the orders sought in the notice of appeal, would have the effect of making it appropriate for the Court to deal with the merits of the application for an order under the Foreign Evidence Act. 44 For the reasons we have given in [38]-[41] above, it would also be inappropriate to stay the proceeding in the Federal Magistrates Court. The question whether Ms Huang would succeed in obtaining an order under the Foreign Evidence Act will depend on the course that the trial before Cameron FM takes. This Court, exercising appellate jurisdiction in relation to a judgment of a judge of this Court, not in relation to any judgment of the Federal Magistrates Court, would be very reluctant to stay a proceeding in another court, unless such a stay were necessary to preserve the subject-matter of the proceeding in this Court.

Costs 45 The normal consequence of such an order is that the unsuccessful appellant is ordered to pay the costs of the successful respondent or respondents to the appeal. This is no more than a principle, guiding the exercise of the discretion as to costs, and must yield to the circumstances of the case if another order is appropriate. 46 In the present case, it can be said against Ms Huang that the appeal was in some respects a wasted exercise. As is pointed out in [38] above, she could have achieved all that might be available to her by making another application under the Foreign Evidence Act, once the trial date of 29 March 2010 had been vacated by the Federal Magistrates Court. On the other hand, Ms Huang has succeeded in establishing that the primary judge denied her procedural fairness. To some extent, that denial was brought about by counsel for UNSW urging the primary judge to proceed to dismiss Ms Huang's application, when she was not in court on the resumption of the hearing of the application on 12 March 2010. If the primary judge had adjourned, and Ms Huang had been in attendance, she might have been able to persuade his Honour to give her the opportunity to do what she in fact did on that day, namely to file her application for the vacation of the trial date. On the appeal, UNSW and Mr Xiao could have conceded the ground of procedural fairness, which took up a significant part of the hearing of the appeal, and resisted the appeal in relation to the other grounds. They did not do so. 47 On the basis that Ms Huang has been partially successful, the just result would be that each of the parties is to bear their own costs of the appeal. There should be no order as to costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray and Katzmann.

REASONS FOR JUDGMENT BUCHANAN J: 48 The appellant ("Ms Huang") has commenced proceedings in the Federal Magistrates Court of Australia ("the FMCA") against the first and second respondents. The proceedings concern claims by Ms Huang that the second respondent ("Mr Xiao") sexually harassed her on specified occasions from 1999 to 2001 when she was a PhD student at the University of New South Wales ("the University"). 49 The matters relied upon by Ms Huang in the FMCA proceedings have been on foot for several years. They were first raised in an application filed by her in the FMCA on 21 August 2003. Her claims were dismissed by the FMCA but, as a result of an appeal, were remitted by a judge of this Court for further attention by the FMCA. 50 Ms Huang sought to adduce evidence in the earlier FMCA proceedings from Professor Daljae Park, a former PhD researcher at the University. Professor Park's involvement with the proceedings relates to an allegation by Ms Huang that, on one particular occasion, Mr Xiao sexually harassed her at an office of the University in late August or September 2001. Ms Huang says that on this occasion she was seeking some assistance in downloading computer software. Professor Park was present as was Dr Taiyoung Kim, another PhD researcher. Mr Xiao was in the vicinity. Ms Huang says that both Professor Park and Dr Kim indicated they could not assist her but Professor Park suggested Mr Xiao may be able to help her. Mr Xiao agreed to assist her and followed Ms Huang into her office where he allegedly showed her unwelcome sexual images on her computer screen. 51 For the purpose of the earlier proceedings, Ms Huang obtained a short affidavit from Professor Park, sworn on 16 February 2005, in which he identified the occasion on which Ms Huang says she sought assistance downloading computer software and on which Mr Xiao went into her office to assist her. 52 Professor Park's affidavit was admitted into evidence by the FMCA but, as Ms Huang had not arranged for him to come to Court (if necessary by subpoena), he was not available for cross-examination. The circumstance led the FMCA to state during the hearing: … because he is not available for cross-examination I am going to give the affidavit minimal weight. In other words if the affidavit is contradicted by more reliable evidence then I will prefer that other evidence … 53 In the earlier proceedings before the FMCA, the allegations against Mr Xiao were dismissed (Huang v University of New South Wales [2005] FMCA 463). However, for reasons set out in the judgment of Rares J (Huang v University of New South Wales (No 3) (2006) 154 FCR 16), the decision of the FMCA was set aside on appeal and the matter was remitted to it for further attention. Those reasons are not connected in any way with Professor Park's evidence. 54 For the purpose of the fresh proceedings (currently on foot in the FMCA), Ms Huang caused a subpoena to be issued to Professor Park, addressed to him at the University of New South Wales. However, Professor Park has since left Australia and returned to the Republic of Korea. It appears that Professor Park does not wish to return to Australia to give evidence in the proceedings. For this reason, Ms Huang made an application under s 9A of the Foreign Evidence Act 1994 (Cth) ("the Foreign Evidence Act") seeking that a letter of request be issued to the judicial authorities of Korea for evidence from Professor Park to be taken or caused to be taken. As the FMCA does not have power under the Foreign Evidence Act to make such an order, Ms Huang filed her application in this Court on 10 February 2010 seeking that such an order be made. 55 Ms Huang sought, relevantly, an order that: 3. Professor Park be [sic] to be cross-examined that he, on 11 November 2003, 20 September 2004, and on 16 February 2005, has provided corroboration of what Ms Huang Cui Huang says: In about August or September 2001, Ms Hong Cui Huang came into his office room 119 in building B11a in the School of Safety Science, University of New South Wales (UNSW), and asked him to help her to install software with reading function into the computer provided by UNSW to her, he said to her he did not know how to do it, Ms Huang turned to ask Dr Taiyoung Kim, Dr Taiyoung Kim said he did not know it and suggested that Fuchun Xiao knew it, and then Fuchun Xiao followed Ms Huang to her office room 123 to provide her the assistance. (Original emphasis) 56 The evidence sought from Professor Park was for the purpose of confirming the statements made by him to the effect stated in his affidavit and in an email exchange with Ms Huang between 17 and 20 September 2004. That is confirmed by a lengthy submission filed by Ms Huang in support of her present appeal. Most of the submission was devoted to complaints about the second respondent and to a recital of alleged procedural defects of one kind or another in various proceedings before the FMCA. Those matters do not require consideration here. However, at the end of the submission Ms Huang again made it clear that the purpose of the order she seeks under the Foreign Evidence Act is to establish the matters to which Professor Park deposed in his affidavit. She suggested the order she sought would not be necessary if "the Court accepts the facts" to which he deposed. In her oral submissions on the appeal Ms Huang once more confirmed that the purpose of her application filed on 10 February 2010 was to secure verification, for the purpose of the present proceedings before the FMCA, of the evidence given by Professor Park in his affidavit. 57 The application filed on 10 February 2010 was dismissed by Emmett J on 12 March 2010 (Huang v University of New South Wales (No 2) [2010] FCA 299). At that time the proceedings before the FMCA were listed for hearing on 29 March 2010. In an interim judgment (Huang v University of New South Wales [2010] FCA 208) given on 4 March 2010 Emmett J indicated that he was inclined to dismiss Ms Huang's application because the orders she sought would be of no utility in circumstances where: the FMCA proceedings in which she wished to use the evidence were listed for hearing on 29 March 2010; and there was information before the Court that it could take three to four months for a letter of request to be complied with. Nevertheless, Emmett J stood the proceedings over until 12 March 2010 in order for Ms Huang to make an application to the FMCA for the hearing to be vacated if she wished to. She had indicated to his Honour that she proposed to do so because "her health is such that she will be unfit to conduct the proceeding". As Ms Huang had not made any application by 12 March 2010 to adjourn the proceedings, Emmett J dismissed her application on the basis of a lack of utility. 58 One complaint made by Ms Huang on the present appeal is that she did not appreciate that she should make an application for an adjournment of the proceedings in the FMCA before 12 March 2010. That was because Emmett J's reasons on 4 March 2010 were given orally, did not become available in written form until 12 March 2010 and, due to the absence of an interpreter at the time they were given (after an adjournment), she did not clearly understand his concluding remarks. His Honour said (at [18]): 18 … The convenient course, it seems to me, is to stand this matter over to 12 March 2010. If, at that stage, the fixture in the Federal Magistrates Court on 29 March 2010 has not been vacated, I propose to dismiss this application. If the hearing has been vacated, I will consider affording Ms Huang the opportunity of renewing her application. Whether a further indulgence will be granted may depend upon whether Mr Xiao appears and the extent to which Ms Huang will be able to persuade me that the evidence of Professor Park is likely to be of sufficient materiality to justify the cost and expense that may be involved in having him examined pursuant to letters of request. 59 The dates for hearing had been fixed in November 2009. Emmett J did not make it a condition that Ms Huang apply for an adjournment of the proceedings in the FMCA, or that she do so within a specified time. His Honour simply responded to Ms Huang's indication to him that she proposed to seek such an adjournment. As no step was then taken by her, and as the proceedings before the FMCA were to be heard in the very near future, Emmett J gave effect, not surprisingly, to the view he formed on 4 March 2010 that the application Ms Huang had made for a letter of request had no utility. That was because she had not taken the necessary step to address the circumstance (which was known to her) that the procedure she wished to invoke would take some months to complete and could not have been completed before the hearing. His Honour could as readily have made the order dismissing the application on 4 March 2010 in the light of Ms Huang's inability to secure an adjournment before that date, a matter to which I will return. 60 It is clear from the transcript of the proceedings on 4 March 2010 that Emmett J informed Ms Huang, and she understood, before he delivered his oral reasons for judgment, that he was not prepared to make an order in her favour at that stage because it would lack utility. He would, if Ms Huang sought and obtained an adjournment, be prepared to entertain a further submission from her. That is the only reason, it appears to me, that Ms Huang's application was not dismissed on 4 March 2010. 61 In the circumstances presented to his Honour, in my view no error is apparent in the course which he took. Nor do I accept, as Ms Huang contended, that she was denied procedural fairness because an interpreter was not present when his Honour delivered oral reasons for judgment on 4 March 2010. Those conclusions are a sufficient foundation to dismiss the present appeal against his Honour's order made on 12 March 2010. However, because the procedural history is a little unusual some further observations are appropriate. 62 Shortly before the hearing before Emmett J on 4 March 2010, the FMCA (on 1 March 2010) rejected an application by Ms Huang that the hearing dates be vacated (Huang v University of New South Wales [2010] FMCA 171). Her grounds for an adjournment included the fact that the application under the Foreign Evidence Act had been filed in this Court on 10 February 2010. On 12 March 2010 Ms Huang made a further application for adjournment. When that application was heard she provided medical evidence to the effect that she was suffering from a mental condition which prevented her from adequately preparing her case which, by the time the application was heard, was to be heard in the following week. In a judgment given on 23 March 2010 (Huang v University of New South Wales (No 3) [2010] FMCA 468) an adjournment "for some months" was granted and the hearing dates were vacated. The proceedings were then listed for hearing on new dates commencing on 26 July 2010. Those events did not signify an error in the approach taken by Emmett J but they did provide an opportunity to Ms Huang to renew her application for a letter of request. That would necessarily require a fresh application. However, rather than take the opportunity to file a fresh application under the Foreign Evidence Act, relying on this change of circumstance, Ms Huang, on the following day (24 March 2010), filed her present appeal challenging the exercise of discretion by Emmett J on 12 March 2010. In due course, the appeal was listed for hearing on 9 August 2010. 63 On 1 July 2010 the FMCA sat to hear evidence and submissions about Ms Huang's capacity to conduct the hearing on the new dates fixed for hearing. Ms Huang asserted her capacity to look after her own interests adequately and to conduct the hearing. However, she took the opportunity to seek an adjournment of the hearing in any event, relying in part on the fact that her appeal was listed for hearing on 9 August 2010. The FMCA accepted that Ms Huang was capable of conducting the proceedings and refused to adjourn them (Huang v University of New South Wales (No 4) [2010] FMCA 474). On 2 July 2010 Ms Huang filed a notice of motion in her appeal proceedings asking this Court to stay the proceedings in the FMCA. On 15 July 2010 I declined to stay the proceedings and adjourned the notice of motion to the hearing of the appeal (Huang v University of New South Wales [2010] FCA 738). 64 The result of Ms Huang's election to file an appeal against the order made by Emmett J on 12 March 2010 rather than file a fresh application, is that the passage of time has again rendered her application filed on 10 February 2010 one which could have no utility having regard to the fact that the hearing had been fixed to commence on 26 July 2010. The FMCA has consistently ruled that, if Ms Huang was capable to represent her own interests (or when she was able to do so), it proposed to proceed to hear her case without unnecessary delay. It has also made clear its view that her application under the Foreign Evidence Act did not provide sufficient reason for an adjournment because the application was made well after dates were fixed for hearing and not at an appropriately early time. This view appears to have substance. Initially, Ms Huang did not make an application until 10 February 2010, too close to the proposed hearing to be practical. Then she failed to make a fresh application when the opportunity presented and again time has run out. It should be emphasised that, under the Foreign Evidence Act, this Court is given power to make orders in aid of proceedings in the FMCA but it is not thereby (or otherwise) given a general power to direct or control proceedings in that Court. In my view, the events to which I have referred, and the choices made by Ms Huang in relation to them, serve to further illustrate the lack of utility in the application which was dismissed on 12 March 2010, and its lack of utility now. 65 In any event, for the reasons which follow, it was not necessary that an order be made under the Foreign Evidence Act (and is not now) for the purpose, as Ms Huang sought, of simply confirming what Professor Park had said in his affidavit. 66 Section 7(2) of the Foreign Evidence Act provides: 7(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following: (a) whether the person is willing or able to come to Australia to give evidence in the proceeding; (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding; (c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order. (Emphasis added) 67 I will pass over the suggestion that Ms Huang wishes to cross-examine her own witness if she is permitted to use the procedure she has sought. In my view it is apparent that the interests of justice would not have been well served (and would not be well served now) by making the order sought by Ms Huang in her application filed on 10 February 2010. The procedure she sought to invoke was, in my view, unnecessary. 68 Ms Huang has an affidavit from Professor Park. She has copies of the email exchange. The affidavit contains a statement about what Professor Park saw and heard. Although the affidavit was used in earlier proceedings in the FMCA those proceedings were remitted for rehearing. The remitted proceedings are being heard by a different member of the FMCA than the member who heard the earlier proceedings. In my view the matter now before the FMCA should be regarded as not the same proceedings as earlier before the FMCA. That is relevant to the matters which follow. Having regard to ss 62 and 63 of the Evidence Act 1995 (Cth) ("the Evidence Act"), to the definition of "previous representation" in Part 1 of the Dictionary to that Act and to clause 6 of Part 2 of the Dictionary, Professor Park's statements (in both the affidavit and email exchange) are each admissible in the present proceedings before the FMCA as a written record of a previous representation made by him, even though he is unavailable to give evidence, provided notice was given by Ms Huang in accordance with s 67 of the Evidence Act, or the FMCA dispensed with that requirement (s 67(4)). 69 If, therefore, the matter was approached by asking what evidence Ms Huang would have been entitled to rely upon, it is clear in my view that there was no necessity for an order under the Foreign Evidence Act so that she might rely on what Professor Park said in his affidavit and in the email exchange. 70 In the circumstances, for that additional (but not strictly necessary) reason there was no error made when the application was refused. 71 The position, according to what was said on the appeal, is now even clearer. The proceedings before the FMCA commenced on 26 July 2010 and continued for four days. We were informed on the appeal that they had been listed again for a further three days commencing on 23 August 2010 and were expected to conclude within that period. Professor Park's affidavit and the email exchange have been admitted into evidence. Ms Huang apparently wishes to require him to give oral evidence as well, but that appears to be so that there can be no suggestion that the weight of his evidence should be reduced by the fact that he was not available for cross-examination. That concern is understandable but it is not a sufficient consideration in all the circumstances. No doubt the FMCA would take into account that Ms Huang had made an attempt to secure Professor Park's more immediate participation in the proceedings but there is no need to express any view about how Professor Park's evidence should ultimately be treated by the FMCA. It would be inappropriate to do so and there is insufficient information to permit a view to be expressed, if it was otherwise appropriate. There are adequate mechanisms to protect Ms Huang's legitimate interests in the FMCA proceedings, notwithstanding the unavailability of Professor Park, and there is no reason to think that those legitimate interests will not be adequately protected. If the matter is judged by reference to the state of affairs at the time the appeal was heard it is even clearer that Ms Huang's application under the Foreign Evidence Act should not be granted. 72 There remain some procedural matters to address. In her grounds of appeal Ms Huang complained, as I mentioned earlier, that she did not have the assistance of an interpreter at the latter part of the hearing before Emmett J on 4 March 2010. She intended to suggest that she was at some disadvantage understanding his Honour's remarks. It followed, so it was contended, that she lost an opportunity to make an application to the FMCA for an adjournment of the proceedings before Emmett J dismissed her application on 12 March 2010. I have already indicated that in my view no denial of procedural fairness was involved. Furthermore, giving her complaint full weight in view of the fact that English is not Ms Huang's first language, the matters to which I have referred illustrate that no complaint of this kind could materially alter the matters which arose for consideration on the appeal. In my view it is not necessary to deal with this complaint further. 73 By notice of motion filed on 27 May 2010, Ms Huang sought to amend her grounds of appeal to add a large number of allegations and assertions and to seek a variety of further orders. Many of the orders sought were for costs or compensation arising from various aspects of the proceedings in this Court and before the FMCA. In view of the conclusion I have reached about the disposition of the appeal, in my view those matters do not require separate consideration. That notice of motion should be dismissed. 74 The notice of motion filed on 2 July 2010, seeking a stay of proceedings in the FMCA, should also now be dismissed. 75 I would dismiss the present appeal with costs. 76 The orders I would make are:

The notice of motion filed on 27 March 2010 is dismissed.
The notice of motion filed on 2 July 2010 is dismissed.
The appeal is dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

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