Huang v University of New South Wales

1.2 Consideration of Ms Huang's application to adjourn the hearing of the University's application for summary dismissal or security for costs 14 Ms Huang appeared in person at the hearing on 8 September 2014 with the assistance of an interpreter in Cantonese and English, and pressed her application for an adjournment. Ms Huang claimed that it would be appropriate for the Court to grant an adjournment given her need to obtain treatment for her medical condition and to resolve her WorkCover claim. 15 The respondents opposed the application on the basis that it was unlikely Ms Huang's medical condition would ameliorate, the WorkCover claim was not relevant to these proceedings, they were entitled to finality in proceedings which had been on foot against them effectively since 2008 (when the proceedings had been remitted by the Full Court to the FCC), and Ms Huang had been given more than an adequate opportunity to prepare her case. 16 At the conclusion of the hearing of that application, I refused the adjournment and reserved my reasons. I set out my reasons below. In the event, however, as no interpreter had been arranged or was available for the afternoon, the hearing of the University's interlocutory application was relisted 2 days later on 10 September 2014. 17 In support of her application for an adjournment Ms Huang relied on a medical report prepared in 2005. Ms Huang also sought to rely on Huang v University of New South Wales [2010] FMCA 468, a decision in a related proceeding where Judge Cameron granted an application for an adjournment by Ms Huang on the basis of her medical condition. However, in that case Cameron FM was satisfied on the medical evidence that Ms Huang's mental condition was such that she would not be in a position to present her case in an adequate fashion, but there was an adequate prospect that she would be able to conduct her case if she took treatment (as she had advised the court she would do). There is no such medical evidence in the present case. 18 In addition, Ms Huang relied on a NSW WorkCover Certificate of Capacity (certificate of capacity) and Worker's Injury Claim Form, both of which were dated 18 August 2014 and annexed to her affidavit filed on 5 September 2014 in support of her application for an adjournment. The psychological injuries to which the Work Cover claim related were alleged to have occurred on 13 September 2001 and to have been the result of harassment in the workplace. She also annexed correspondence from the University acknowledging receipt of the Worker's Compensation claim and subsequently on 2 September 2014 giving notice that it declined liability. Ms Huang claimed that the certificate of capacity was consistent with the earlier medical report from 2005. Objection was taken by the respondents to the certificate of capacity as evidence of Ms Huang's medical condition as it was said that there was no evidence that Mr Kong, who prepared the certificate is a medical practitioner, or in any event that he is Ms Huang's treating doctor. The respondents also objected on the ground that Mr Kong's certificate simply recited what Ms Huang had told him rather than being based on anything independent. Ms Huang responded that I should accept the qualifications of the practitioner who prepared the certificate on the face of the document, given that he was Medicare approved and had a provider number. 19 The illness of a party will usually be sufficient to entitle that person to an adjournment unless prejudice can be shown: see Neil v Nott (1994) 121 ALR 148 at 151 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). I accept that Ms Huang is affected by a mental condition and that was not in dispute between the parties. However, aside from demonstrating the history and duration of Ms Huang's medical condition, I do not consider that the 2005 medical report, which is nearly 10 years old and does not take into account Ms Huang's extensive history of prosecuting a number of cases in a number of courts in the intervening period, can be relevant to a consideration of Ms Huang's ability to prepare an amended notice of appeal or to prepare for a hearing in these proceedings. Nor does the certificate of capacity, which was prepared for a different purpose, address how Ms Huang's condition might affect her ability to prosecute these proceedings. 20 I also raised my concerns with Ms Huang that she had not provided any medical evidence as to when she might recover from her condition which might inform any appropriate period for an adjournment. To the contrary, in the decision of Driver FM on which Ms Huang also sought to rely, the medical evidence indicated that Ms Huang's health condition would, in all likelihood, prove permanent or at least not ameliorate until her legal proceedings were resolved: Huang v University of New South Wales [2008] FMCA 11 at [21]-[24]. This material and the 2005 medical report only confirm that Ms Huang has been ill for a substantial period of time and that her condition has not ameliorated in the intervening period. While Ms Huang maintained that she had received treatment, there was no evidence as to the nature of that treatment, how effective it was, or when, if ever, her condition might improve. 21 In these circumstances, I have reached the view that Ms Huang has failed to demonstrate that an adjournment on the basis of her medical condition would have any utility. 22 Secondly, Ms Huang submitted that an adjournment should be granted pending the resolution of her WorkCover claim because, first, there was too much work in these proceedings for her to manage in addition to the short time frame within which she has to respond on the WorkCover claim, and secondly, the possibility exists that she might receive compensation if she succeeds in that claim which she could use to obtain legal advice. However, that submission would see this appeal adjourned for an indefinite period of time - a result would be manifestly unfair to the respondents. As Tracey J observed in Luck v University of Southern Queensland [2008] FCA 1582 at [9]: Although the Court will, normally, be sympathetic to the predicament of an unrepresented litigant faced with the need to prepare legal submissions, the Court is also bound to have regard to the interests of respondents when determining whether or not to accede to further requests for time for preparation. 23 Furthermore, it was Ms Huang's decision to institute the WorkCover claim only in 2014 despite the alleged injury having occurred in 2001 and to give that application apparent priority over preparation of the present appeal despite the fact that the appeal arises from proceedings instituted in 2003 and remitted on appeal to the primary judge in 2006. 24 Thirdly, Ms Huang requested an adjournment of at least three months to seek legal representation on the basis of a proposed further amended notice of appeal which accounts for the WorkCover claim. She requested the Court issue a further certificate of referral for this purpose. I declined to issue another referral certificate for legal assistance, and explained to Ms Huang that was because it had previously been unsuccessful. I also informed Ms Huang that it was not the role of the Court to organise legal representation for litigants. Furthermore, as I did not consider that the WorkCover claim had any relevance to these proceedings, I did not consider that Ms Huang's proposed further amendments to account for the WorkCover claim justified the issue of a further certificate. Instead, I received Ms Huang's proposed further amended notice of appeal as a submission only. 25 Fourthly, Ms Huang had 28 days within which to lodge her appeal from the Court below, and a further month to work on her notice of appeal before the first directions hearing. The orders I made on 22 May 2014 allowed Ms Huang an additional two month period within which to prepare an amended notice of appeal and to seek legal advice. I consider that Ms Huang has had a sufficient opportunity to formulate and finalise her grounds of appeal, to seek legal advice and to prepare for the University's interlocutory application. In this regard, in Tinkler v Elliott [2012] EWCA Civ 1289, the Court of Appeal of England and Wales observed in terms equally applicable to this jurisdiction, that: I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person… 26 Those sentiments have been cited with approval on several occasions in this Court: eg Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228 at [26] (McKerracher J); Ejueyitsi v Bond University [2012] FCA 1514 at [16] (Logan J). To similar effect, Gilmour J explained, in disallowing an adjournment application by a self-represented litigant, that "there is a very real public interest in the timely disposition of matters before this court, where the respondents… are also entitled to a timely resolution of the case": O'Donoghue v Australian Information Commissioner (No 2) [2012] FCA 1152 at [9]. 27 I consider that to accede to Ms Huang's adjournment request in these circumstances would constitute an "excessive indulgence". Thus while, as an aspect of the court's duty to ensure that a trial is fair, the court must ensure that unrepresented litigants do not suffer disadvantage from exercising the recognised right to be self-represented, "the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties.": Hamod v New South Wales [2011] NSWCA 375 ("Hamod") at [310] (emphasis added) (approved by the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 14305 ("SZRUR") at [37]; see also Luck v University of Southern Queensland (2009) 176 FCR 268: [2009] FCAFC 73at [52]). Further, pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth), the FCR must be applied in a way that best promotes the overarching purpose of facilitating the just resolution of disputes, relevantly, "as quickly, inexpensively and efficiently as possible". Obligations are also imposed upon the parties to a civil proceeding to conduct the proceeding in a way that is consistent with this overarching purpose by s 37N. To accede to a further adjournment in all of the circumstances set out above would not, in my view, promote the overarching purpose. 28 Finally and in any event, the deficiencies in the grounds of appeal weigh strongly against the granting of a further adjournment in circumstances where I consider that the appellant has had ample opportunities to amend them. In my view the respondent should not be forced to continue to incur costs in responding to an appeal that is incompetent and manifestly must fail. Those deficiencies are apparent from the reasons which I give later in my reasons at [49]-[84] for upholding the application for summary dismissal of the appeal.

1.1 The complaint to the Human Rights and Equal Opportunity Commission 29 The proceedings have their origin in a complaint made by Ms Huang on 31 October 2002 to the then Human Rights and Equal Opportunity Commission ("HREOC"). The complaint related to events alleged to have occurred when Ms Huang was a doctoral student at the University of New South Wales. 30 In her initial complaint Ms Huang alleged sexual harassment and discrimination on the grounds of a disability and in her employment against Dr Boban Markovic and Associate Professor Chris Winder from the School of Safety Science at the University. No details of the complaint were provided. On 14 August 2002, HREOC wrote to Ms Huang advising that she had provided insufficient information for the Commission to proceed with an investigation and affording her an opportunity to provide that information. 31 Ms Huang responded on 3 September 2002 providing details of her complaints against Dr Markovic and Associate Professor Winder. Further details were provided by Ms Huang in a letter to HREOC on 31 October 2002. In that letter Ms Huang made a further allegation that in either August or September 2001, she was sexually harassed by another student, Dr (then Mr) Xiao. She contended that when he came to her desk to assist her to install software on her computer, he accessed the internet and showed her sexually explicit pictures. She wrote again to HREOC on 29 January 2003 making further complaints of a similar nature against Dr Xiao arising from conduct said to have occurred in 1999 and 2001. 32 Although the complaints against Dr Xiao had not been raised in her original complaint, the Delegate of the President of HREOC (the Delegate) in a letter dated 28 July 2003 granted leave for Ms Huang to amend her complaint to include allegations against Dr Xiao in accordance with s 46PA of the Human Rights and Equal Opportunity Act 1986 (Cth) (the HREOC Act). However, the Delegate reached the view that the complaint against Dr Xiao and the other persons against whom she made a complaint should be terminated, and gave notice of termination dated 28 July 2003. In the accompanying letter to which I have referred, the Delegate noted that she had a discretion under s 46PH(1)(b) of the HREOC Act not to investigate a complaint lodged more than 12 months after the alleged unlawful discrimination took place. The Delegate determined in the case of Mr Xiao to terminate this part of Ms Huang's complaint having regard to the fact that she did not consider that Ms Huang had adequately explained why she had failed to raise the incident earlier. The Delegate also noted that Ms Huang was not certain about Mr Xiao's name and had not provided contact details. The Delegate considered that these factors would have a significant impact on conducting an enquiry into the complaint.

1.2 Commencement of proceedings in the Federal Magistrates Court 33 On 21 August 2003, Ms Huang instituted proceedings number SZ 1691 of 2003 in the Federal Magistrates Court of Australia (as it then was) (FMC) against five respondents being the University, Mr Markovic, Professor Winder, Mr Abayawickrama and Dr Xiao. The actions complained of were said to be unlawful under the Disability Discrimination Act 1992 (Cth), the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) ("SDA"). A lengthy document was attached which set out details of her complaints against the respondents.

1.1 Severance of claims against other respondents and their resolution 34 In 2005, Driver FM determined that the claims against Dr Xiao should be severed from proceedings number SZ 1691 of 2003 concerning complaints against Mr Markovic and Professor Winder (Markovic and Winder proceeding) "on the basis that the claim against Mr Xiao was severable from the claims against the other respondents and was ready to be heard, whereas the other claims were not ready to be heard.": Huang v University of New South Wales [2005] FMCA 463 at [2]. 35 On 11 February 2008 Driver FM dismissed the Markovic and Winder proceeding: see Huang v University of New South Wales [2008] FMCA 11. On 18 December 2008 Ms Huang's appeal against that decision was dismissed by the Federal Court: see Huang v University of New South Wales [2008] FCA 1930. 36 On 5 June 2006, Driver FM made orders that the complaint against Mr Abayawickrama be heard separately from the other proceedings. There were, however, issues with serving proceedings on Mr Abayawickrama and on 23 September 2004 Ms Huang filed new proceedings no. SYG 2920 of 2004 in the FMC against Mr Abayawickrama (Abayawickrama proceeding). The Abayawickrama proceeding was dismissed on 27 August 2012 by the FMC: see Huang v Abayawickrama (No 2) [2012] FMCA 747. An appeal against that decision was also dismissed by the Federal Court: see Huang v Abayawickrama [2012] FCA 1504.

1.2 The first trial against Dr Xiao and appeal 37 The first trial in which Dr Xiao was a respondent was heard in the FMC on 6 April 2005. The Federal Magistrate dismissed the proceeding on 16 May 2005: Huang v University of New South Wales [2005] FMCA 463. In that decision, Driver FM found that, first, the Court had no jurisdiction to determine claims made against Dr Xiao relating to dates in 2004 and secondly, there was no basis for a claim to vicarious liability against the University in relation to the claim of sexual harassment asserted against Dr Xiao (at [19]-[21]). 38 Ms Huang's appeal to the Federal Court was allowed on 25 May 2006: see Huang v University of New South Wales (No 3) [2006] FCA 626. Rares J allowed the appeal "reluctantly" on the ground that the Federal Magistrate had wrongly received and used affidavit evidence not sought to be read by any party in breach of the rules of procedural fairness and he could not dismiss the possibility that that breach had affected the outcome: at [56] and [78]. Rares J relevantly ordered that: 4. The order made by the Federal Magistrates Court on 16 May 2005 be set aside and in lieu thereof it be ordered that: (1) there be heard separately and apart from all other issues in the proceedings all questions of liability and damages relating to the issues raised in paragraphs 15-18 of the Particulars of My Application filed by the applicant on 29 October 2004 as between: (a) the applicant and [Dr Xiao]; and (b) the applicant and [Dr Xiao] in respect of any vicarious or other legal liability of the [University] for any conduct of [Dr Xiao] the subject of question (a) above. (2) Order (1) take effect for the purposes of the proceedings as if it had been on 10 March 2005. 5. There be a new trial of the question referred to in Order 4 ('the Question'). (Federal Court Order) 39 Paragraphs 15-18 of the "Particulars of My Application" referred to in order 4 of the Federal Court Order stated that: 15. In about semester 2 of 1999, when I asked the [Mr Xiao] showed me how to read Chinese new paper from Internet, he sexually harassed me by showing me pictures in which a naked girl postured very sexily and lustfully on a computer screen. 16. In August or September 2001, when the [Mr Xiao] provided me assistance to install software with reading function from Internet into my computer, he sexually harassed me by showing me about three pornographic pictures, in which there was a naked man with a naked woman who were intending having sex. When showing me a pornographic picture, I was shocked and asked him not to do it, but he still got into other pornographic pictures, and then I told him leaving. 17. Several times probably in 2001, in room 119 of building B11a, I saw pornographic pictures showed by [Mr Xiao] on the computer screen. 18. Because I complained about [Mr Xiao]'s sexual harassment, twice on 3 and 30 August 2004, he victimised against me and subjected me to mental distress by cursing loudly at me: "Fuck you! Bitch!" and threatened to subject me to fear of being killed by saying in greater anger: "I will kill you". (sic) (emphasis in original)

1.1 The decision of the FCC on remittal 40 It will be recalled that Federal Court remitted the matter to the FMC limited to the issues raised in paragraphs 15 to 18 inclusive of appellant's particulars. While the FMC granted leave to Ms Huang to amend the particulars of her claim on 24 November 2008, importantly those amendments did not change the nature of the claim: Huang v University of New South Wales [2008] FMCA 1578. A further application by Ms Huang to amend her particulars of claim to allege conspiracy was, however, refused by the FMC on 20 May 2011 in Huang v University of New South Wales [2011] FMCA 387. Specifically at [8] the Federal Magistrate held that: 8. The significance of this history lies in the fact that the allegation of conspiracy which the applicant has identified in her submissions today could not properly be said to have been the subject of the complaint which the applicant made to the Commission. As required by s.46PO(3) of what is now the Australian Human Rights Commission Act 1986, it is certainly not the same, or the same in substance, as the alleged unlawful action that was the subject of the complaint against Dr Xiao which was terminated by the Commission and I do not think, even giving the applicant the sort of latitude which is given when applying s.46PO(3), that it could be said to arise out of the same or substantially the same acts, omissions, or practices as were the subject of that complaint. Further, the re-hearing which Rares J ordered was limited to the matters which the applicant raised originally in paras.15 to 18 of the particulars of her complaint. The expansion of that document in the amending document filed on 26 February 2009 does not expand the scope of the original complaint. That is to say, the complaint before the Court does not include, as an issue, the alleged conspiracy which the applicant has identified today. 9. It has been difficult to keep this case within proper bounds but it is important that efforts be made to do so and, in particular, that an issue which is plainly not part of the proceedings brought to court should not be allowed to be raised as if it were, or to permit irrelevant evidence to be adduced such that the hearing will be even more time-consuming. It should also be observed that the issues which the applicant raises in relation to the conspiracy she has articulated today seem to be only a continuation of the complaints which she made in the early part of the proceedings before Driver FM as far as that concerned the actions of Professor Winder, Dr Markovic and the University which ultimately led to her exclusion from her PhD studies. What the University did in that connection is of no concern to me in these proceedings. 10. At this point, in light of the question which has been ordered to be determined separately, the only thing which I am concerned to determine is whether Dr Xiao acted in the way which the applicant alleges and, if he did, whether the University has vicariously liability for that. I am not concerned with any damage which the applicant may have suffered as a result of that conduct, should it be proved, or the course of her PhD studies. For these reasons, those parts of her affidavits which are said to be relevant to this proceeding by reason that they evidence the conspiracy which the applicant alleges are, in my view, irrelevant to this case and should not be allowed. 41 The trial ultimately proceeded on the basis of a document entitled "Particulars of My Applications (amended for paragraph [sic] 15 - 18)" filed on 26th February 2009 and described by the primary judge as "prolix but little different in substance from the original particulars.": [2014] FCCA 644 at [8]. 42 On 21 September 2009, the primary judge made an order for the separate determination of the question "Did the respondents breach the Sex Discrimination Act 1984 (Cth) as alleged by the applicant?" Ms Huang's application as remitted was heard by the FCC between 26 July 2010 and 2 February 2012 and on 31 March 2014. Notwithstanding the narrowing of the issues by the Federal Court, the trial occupied around 35 days, and a substantial number of documents were filed and relied upon by Ms Huang. The application was ultimately dismissed by the primary judge both against the University and Dr Xiao on 4 April 2014: Huang v University of New South Wales & Anor [2014] FCCA 644. 43 First, as the primary judge held at [34], the jurisdiction of the FCC (and the Federal Court) is circumscribed by the scope of the complaint to HREOC. Specifically, his Honour there held that, by virtue of s 46PO(3) of the (then) HREOC Act: …the only unlawful discrimination in respect of which this Court has jurisdiction is that which is at least the same in substance as the unlawful discrimination that was the subject of the terminated complaint or arise out of at least substantially the same acts, omissions or practices that were the subject of the terminated complaint. Further, the respondents to the proceedings in this Court must have been respondents to Ms Huang's complaint to HREOC. Unless these criteria are satisfied the Court does not have jurisdiction in respect of the particular complaint: Jandruwanda v Regency Park College of TAFE [2004] FCA 1455; Hollingdale v Norman Rivers Area Health Service [2004] FMCA 721. See also e.g. see Charles v Fuji Xerox Australia Ltd [2000] FCA 1531 at [42] to [45]. 44 The primary judge held that the FCC had jurisdiction to entertain Ms Huang's complaints against Dr. Xiao raised in her letter of 31 October 2002 as to the incident alleged to have occurred in August or September 2001 and in her letter dated 29 January 2003 alleging further incidents in 1999 and 2001. The primary judge reached this view on the basis that, while the Delegate referred in her letter expressly only to Ms Huang's complaint against Dr Xiao in August or September 2001, the inference should be drawn that, when HREOC terminated that part of Ms Huang's complaint concerning Dr Xiao, it did so with respect to the allegations made also in Ms Huang's letter of 29 January 2003 as well as those in her letter of 31 October 2002: at [42]. However, the primary judge held at [43] that he had no jurisdiction to entertain claims relating to victimisation contrary to s 94 of the SDA or further acts of sexual harassment allegedly undertaken in 2004 because those events were not among the matters which were the subject of any complaint to HREOC. 45 Secondly, the primary judge found a number of provisions of the SDA to be potentially relevant to a consideration of Ms Huang's claims, namely, ss 21, 28B, 28F and 106: at [26] - [31]. Section 21 of the Act renders it unlawful for an educational authority to discriminate against a person on the ground of a sex by subjecting the student to detriment. Section 28B of the SDA also renders it unlawful for an employee to sexually harass another employee at their workplace, while s 23F renders it unlawful for a member of staff to sexually harass a student. Sexual harassment for the purposes of these provisions is defined in s 28A of the Act which provides that: (1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. ... (2) In this section: conduct of sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. 46 Section 106(1) of the SDA provides that an employer will be vicariously liable for an act by an employee which is, relevantly, unlawful by reason of ss 28B or 28F, and the employee does the act "in connection with the employment of the employee". That subsection does not, however, apply "if it is established that the [employer] took all reasonable steps to prevent the employee or agent" from doing acts of that kind: s 106(2). 47 Based on these provisions and leaving aside the s 21 allegations, the primary judge identified the elements which Ms Huang must prove as follows: [30] Ms Huang will have made out her allegation that she was sexually harassed by Dr Xiao in contravention of the SDA if she proves that the conduct which she alleges occurred was of a sexual nature and unwelcome, or amounted to an unwelcome sexual advance or request for sexual favours, and that a reasonable person in the circumstances would have anticipated that she would be offended, humiliated or intimidated by that conduct. The test of what a reasonable person would have anticipated is an objective one and turns on a reasonable person's state of mind, not on Dr Xiao's state of mind: Leslie v Graham [2002] FCA 32 at [70]; see also CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 at 118 [52], [53]. [31] If those allegations are made out, Dr Xiao will be primarily liable for acts of sexual harassment, with UNSW potentially vicariously liable under s.106 of the SDA. 48 Finally, in finding that Ms Huang had failed to prove the elements of her causes of action and thereby rejecting her claims, the primary judge concluded that: [148] I found that Dr Xiao was consistent in his account and made concessions which might not have assisted him. In contrast, Ms Huang's recollections or claimed recollections were not consistent or reliable and I find that her behaviour in 1999, 2000, 2001 and 2002 was inconsistent with her having been exposed to the images she described. I am not persuaded that she did see such images as the result of any conduct by Dr Xiao. [149] Should I be incorrect in those conclusions, Ms Huang's lack of contemporaneous complaint, or other recorded action, nevertheless satisfy me that, notwithstanding her sensitive personality, anything she might have seen did not offend her. I therefore infer that whatever it was she may have been shown was not particularly affronting. I find that a reasonable person would not have anticipated that whatever it was she may have been shown would have offended, humiliated or intimidated her. [150] Even if I am wrong in all of those conclusions, I find that UNSW would not be vicariously liable for the sexual harassment alleged against Dr Xiao because the acts in question, even if proved, did not occur in connection with his employment with UNSW. [151] Ms Huang additionally alleged that UNSW had discriminated against her by having subjected her to some detriment but she did not identify the detriment, the relevant characteristic said to have prompted the discrimination or a relevant comparator. In the circumstances the allegation is not made out.

2. THE APPLICATION FOR SUMMARY DISMISSAL OF THE APPEAL

2.1 Introduction 49 Ms Huang appeared at the hearing of the University's interlocutory application on 10 September 2014 in person with the assistance of an interpreter in Cantonese and English. In addition to its outline of written submissions, the University provided a table to Ms Huang in advance of the hearing which helpfully summarised her grounds of appeal as understood by the University and the University's response. No issue was taken by Ms Huang with the University's understanding of her grounds of appeal.

2.2 Relevant principles: alleged incompetency of the appeal 50 As mentioned, the University seeks orders for dismissal of the notice of appeal as incompetent under FCR r 36.72. The purpose of r 36.72 is to relieve the parties of the expense of preparing for an appeal that is incompetent and allows the appellant to consider withdrawing an appeal without incurring further expense: see Marchant v GB Radio (Aust) Pty Ltd [2002] FCA 465 ("Marchant") at [5] (North J). While the decision in Marchant concerned the predecessor provision to r 36.72, namely order 52 r 18(3), Federal Court Rules 1979, I do not consider that r 36.72 has any different intent: see: Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390; [2012] FCA 1121 ("Singh (No 3)") at 396 [29] (Griffiths J). 51 Rule 36.72 relevantly provides: 1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency: (a) in accordance with Form 125; and (b) that, briefly but specifically, states the grounds of the objection. 2) The appellant carries the burden of establishing the competency of an appeal. 3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal. 4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as incompetent, the respondent is not entitled to any costs of the appeal. 5) If the Court decides that an appeal is not competent, the appeal is dismissed. 52 The notice of objection to competency was filed within 14 days of Ms Huang's amended notice of appeal and therefore complies with r 36.72(1). That being so, the University correctly submitted that Ms Huang carries the burden of establishing the competency of the appeal under r 36.72(2). By virtue of r 36.72(5), if the Court decides that an appeal is not competent, it is to be dismissed. There is no element of discretion, 53 An appeal may be incompetent if it is incomprehensible or entirely unrelated to the issues before the Court below, as North J (with whom Weinberg and Jessup JJ agreed) held in Zegarac v Dellios [2007] FCAFC 58 at [7]. However, the mere fact that a notice of appeal is prolix and fails to comply with FCR rule 36.01(2)(c) does not suffice: ibid; see also Singh (No 3) at [24]-[29] (Griffiths J) by analogy. 54 In Singh (No 3) at 397 [31], Griffiths J expanded upon the nature of the inquiry to determine whether one or more grounds of appeal are incomprehensible, holding that the task should be approached as "one of determining whether the notice of appeal, as a matter of substance, specifies appellable errors". Where that is the case, the question may become whether an order should be made dispensing with compliance with the relevant rules as to the form and content of a notice of appeal. However, as his Honour also observed, "while it is appropriate to make some allowance for the fact that a party is a litigant in person, that fact alone cannot provide a basis for the Court exercising a jurisdiction which it does not have" (ibid). 55 For the reasons explained below, the grounds of appeal raised by Ms Huang suffer from being either or both incomprehensible or entirely unrelated to the decision below. As such, the appeal must be dismissed in accordance with r 37.02(5).

2.3 Relevant principles: summary dismissal on the basis that the appeal had no reasonable prospect of success 56 In the alternative, the University calls in aid s 31A(2) of the FCA Act which provides that: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. 57 This power applies to appeals, having regard to the definition of "proceeding" in s 4 of the FCA Act: Singh (No 3) at [38] and the authorities cited therein. 58 The power to summarily dismiss proceedings must always be exercised with great care. This is so notwithstanding that the criterion in s 31A may be satisfied on grounds wider than those contained in previous iterations of the rules authorising summary dispositions, as r 31A(3) makes clear: Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at 131-132 [24] French CJ and Gummow J. That care is reflected in my view in the approach adopted by Rares J (with whom Emmett J agreed) in Wills v Australian Broadcasting Corporation (2009) 173 FCR 284; [2009] FCAFC 6, namely: [43] In considering whether to exercise the power to give judgment under s 31A of the Act, the Court is not concerned with mere pleading points. Rather, …the section is concerned with the bringing and defending of proceedings and with substance, not just with form. [44] In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19]- [21], French J said: The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding. In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. ... Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for "judgment" or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. ... (Footnotes omitted)

2.4 Consideration 59 I address each of the grounds of the amended notice of appeal in turn below. I note that grounds 8 or 27 are pleaded, and that paragraph 29 of the amended notice of appeal is not a ground of appeal but in the nature of a submission only as to the alleged powers of the Federal Court to correct errors.

1.1.1 Grounds 1 to 4, amended notice of appeal 60 Grounds 1-4 relate to Ms Huang's complaint as to the separate hearing of various complaints of sexual harassment and allege that the hearing did not comply with the Federal Court Order because the FCC did not hear other complaints. They appear to complain that Ms Huang's complaints against the University, Professor Winder, Dr Markovic and Mr Abayawickrama ought to have been heard together with those against Dr Xiao and that the failure to do so denied her natural justice and a chance to be successful. At the hearing, Ms Huang made submissions that went to the severance of her claim in 2005, alleging prejudice by reason of there having been "three isolated proceedings before three isolated judges with three isolated judgments." 61 The grounds are, however, incomprehensible and no error of fact or law can be discerned. No comprehensible reasons as to why the separate hearing and determination of her claims against Dr Xiao should have prejudiced Ms Huang in some way sounding in error are apparent from the grounds of appeal, or from her oral submissions. 62 Furthermore, grounds 1 to 4 are outside the narrow compass of issues remitted to the primary judge and are not related to the judgment which is the subject of this appeal. In an endeavour to meet this difficulty, Ms Huang submitted that Rares J had referred the heading above paragraphs 15-18 of the application filed on 29 October 2004, namely "B. The fifth respondent's sexual harassment and victimisation - breaches of S28A, S28F(2), S94, S106, and S21(2) of SDA by the first and fifth respondents", as well as the substance of the paragraphs, for reconsideration by the FCC. The heading was said in effect to expand the scope of issues remitted to the trial judge by the Federal Court beyond the substantive grounds in paragraphs 15 to 18. In my view, the submission is misconceived. It is apparent from the terms of the order that it referred only to the terms of the substantive grounds. The fact that the paragraphs in question appeared beneath a heading which referred to breaches beyond those identified in the substantive paragraphs - in particular the reference to victimisation (s 94, SDA) and to s 21(2) of the SDA relating to discrimination by an educational authority on the ground of sex - is irrelevant. The intent of the Federal Court Order is clear. 63 Finally, and in any event, the issues which grounds 1 to 4 apparently seek to agitate have already been determined adversely to Ms Huang in Huang v University of New South Wales (No 3) [2006] FCA 626. Specifically, by grounds 13 and 14 in the first appeal, the appellant sought to have the proceedings involving Dr Xiao and the University recombined with the other proceedings. Rares J dismissed those grounds, holding at [12] - [14] that: [12] The appellant complained that the procedure adopted by his Honour was not what she wanted and that she only wanted his Honour to hear the issues involving Mr Xiao without making any orders. However, I am of opinion that his Honour was entitled to treat the appellant's request as a request for a separate determination of the issues between her and Mr Xiao, and, so far as it was affected thereby, the University. [13] In Grounds 13 and 14, the appellant now seeks to have the proceedings involving her, Mr Xiao and the University recombined with her other proceedings. All parties before his Honour appear to have seen the matter involving Mr Xiao as discrete and severable. The appellant sought such a separation. Having achieved what she sought, I do not consider that she should obtain a reversal of that resultant separation on appeal. [14] It was undesirable to order a separate hearing where issues as to credit were clearly involved in respect of the appellant and, if it called evidence from witnesses, those witnesses of the University who gave evidence. However, it was open to his Honour to order a separate hearing in the exercise of the jurisdiction of the Federal Magistrates Court which included statutory commands to proceed without undue formality and to endeavour to ensure the proceedings were not protracted (see s 42 of the FM Act). 64 It follows that grounds 1 to 4 are incompetent and would not in any event have any prospects of success.

1.1.2 Grounds 5 to 7, 10 to 12 and 15, amended notice of appeal 65 Grounds 5-7 complain that the FCC did not hear and determine other claims under the SDA and under the Trade Practices Act 1974, workers compensation laws, the Civil Liability Act 2002 (NSW) and other unidentified laws. Those claims are unrelated to the judgment appealed from, being beyond the scope of the issues remitted to the FCC or even those raised in the original complaint to HREOC. They are also again incomprehensible, raising no discernible ground of appeal in fact or law. As such these grounds are incompetent. 66 Grounds 10 to 12 appear to allege that the University is liable for a breach of a duty of care to protect Ms Huang, including by reason of the University having control of the computers on which the pornographic pictures were said to been shown and the premises where they were located and by reason of its alleged employment of Dr Xiao. Breaches of the Trade Practices Act 1974 (Cth), workers compensation laws and "other relevant laws which the court think are fit" are also alleged. The short point is that none of these issues were before the primary judge. They are again unrelated to the judgment below. 67 Equally ground 15 complains that the FCC did not hear and determine conduct alleged to have occurred in 2004 and 2010. The University's submission that those issues post-date the HREOC complaint is plainly correct and they and are therefore outside the jurisdiction of the Court for the reasons I have already explained.

1.1.3 Grounds 9, 13 - 14 and 19 - 23, amended notice of appeal 68 Grounds 9, 13-14 and 19-23 complain that particular words or matters were not referred to in the reasons of the primary judge. The complaints in ground 9 alleges omissions in the recital by the primary judge of the history of Ms Huang's claims but fail to identify any comprehensible error of fact or law in the primary judge's reasoning in rejecting her claims: see by analogy Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 ("Zambini") at [12]. 69 Equally, grounds 13 and 14 allege that the primary judge omitted reference to particular words simpliciter without identifying any resulting error in the judgment below. 70 Finally, insofar as grounds 19 to 23 contend that certain evidence was missing from the primary judge's reasons, they fail to identify any comprehensible error of law or fact as a consequence of the alleged omissions. For example, in ground 19 Ms Huang would seem to express disagreement with the finding by the primary judge at [137] that her responses to his questions concerning her initial lack of knowledge of Dr Xiao's name were unconvincing and with the basis for that finding. However, the matters to which she refers in ground 19 indicate only that she disagrees with the factual finding. This was confirmed by her oral submissions in which she alleged that the judge's findings based on her not knowing the name of Dr Xiao were untrue as she simply had difficulty recalling his name due to his name being Mandarin, her poor memory and the passage of time. Neither in her grounds of appeal nor in her oral submissions did she identify any appellable error in the primary judge's findings on the point: see also by analogy Zambini at [12]. Nor could the FCC be expected to record every matter in the 190 documents tendered by Ms Huang: see Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7 at [44] (Flick J, with whom Moore and Yates JJ agreed).

1.1.4 Grounds 16 to 18, amended notice of appeal 71 Grounds 16-18 contend that the FCC did not properly deal with Dr Sachdev's evidence as to Ms Huang's mental state. At the hearing, Ms Huang made oral submissions that the judge below failed to give appropriate weight to expert evidence and to her evidence. I accept the University's submission that no comprehensible error of fact or law is identified in these grounds. In relation to grounds 16-18 specifically, the University rightly submitted that those paragraphs are "incomprehensible and impenetrable" and the mere failure to refer to all of the evidence is not an appellable error. 72 In relation to ground 16(6), the allegation that it was procedurally unfair for the primary judge to fail to call legal experts or psychiatrists to give their opinion on the evidence of Dr Sachdev as to Ms Huang's mental state misapprehends the proper role of the Court and the parties. Procedural fairness requires only that the parties be given an opportunity to be heard, including to lead evidence in support of their claims: see eg SZRUR at [53]-[55] (Allsop CJ); Hamod at [312]. In the system of adversarial justice which pertains in Australia, it is not the role of the court to undertake its own investigations or inquiries and to seek to lead evidence, as Rares J held on the first appeal in this matter in Huang v University of New South Wales (No 3) [2006] FCA 626.

1.1.5 Grounds 24 - 26, Amended Notice of Appeal 73 Grounds 24-26 contend that the FCC limited cross-examination and omitted "evidences". At the hearing, Ms Huang made oral submissions that the Court below failed to give appropriate weight to expert evidence and to her evidence. No error of fact or law is again identified in these grounds or by Ms Huang in her oral submissions. Nor do grounds 24-26 identify how the alleged limitation or failure to record "evidences" affected the outcome. 74 Furthermore, the University rightly submitted that ground 25, which pleaded simply that the FCC "erred in applying incomplete evidences by: (1) refusing parts of evidence that receiving the other parts of the evidence, and (2) denying my applications to have evidence is completed", is "meaningless, impenetrable and impossible to fairly deal with". The impenetrability of a ground which fails to identify any specific evidence is emphasised by the fact that the matter involved around 35 days of hearing, with around 190 documents being tendered by Ms Huang. 75 For these reasons, grounds 24 to 26 are incompetent and in any event lack any reasonable prospects of success.

1.1.6 No challenge to finding that the University is not vicariously liable 76 Furthermore, no challenge is made to the finding by the primary judge that, even if he were wrong in finding that there had been no breach of the SDA by Dr Xiao, the University would not be vicariously liable: see [146] and [150]. Specifically, in this regard, the primary judge found that: [143] Further, while I accept that at all relevant times Dr Xiao was nevertheless an employee of UNSW by reason of his various casual engagements, there was no evidence that his employment had any connection with the School of Safety Science nor any evidence that it was part of his duties to assist Ms Huang or any other student with their computer. Specifically, there was no evidence that the computers on which Ms Huang said she was shown inappropriate images had any connection with Dr Xiao's employment. [144] This want of evidence reflects the fact that Ms Huang did not appear to allege any connection between the allegations she made against Dr Xiao and his employment, the implication being that it was sufficient that Dr Xiao was employed by UNSW for it to be vicariously liable for any sexual harassment of Ms Huang proved against him. However, the test of vicarious liability in s.106 of the SDA requires something more, specifically that any acts of sexual harassment proved against Dr Xiao were ones "in connection with" his employment with UNSW. [145] In South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 at 410 [42], Black CJ and Tamberlin J observed that the expression "in connection with" seemed to be wider than the usual test of vicarious liability in employment situations, namely whether an act was done "in the course of" the person's employment. Even so, the facts of this case do not support a conclusion that any of the conduct alleged against Dr Xiao could be characterised as having been connected with his employment. Rather, the conduct alleged was quite unrelated to it: South Pacific Hotels Pty Ltd at 409 [39]. In this regard, even though the conduct was said to have occurred on part of UNSW's extensive premises, if it occurred it did so in a location quite distinct from Dr Xiao's places of employment and involved an action which has not been demonstrated to have been, and in fact appears not to have been, related to his employment in any way. [146] Consequently, even if the acts alleged against Dr Xiao were to be found to have occurred, UNSW would not be vicariously liable for them. (emphasis added) 77 In the absence of any challenge to these findings, the appeal has no reasonable prospects of success as against the University.

1.1.7 Allegations of prejudice, bias and perjury in the grounds of appeal 78 Finally, at various points in the amended grounds of appeal, Ms Huang alleges prejudice or apprehended bias against the primary judge. An example is found in ground 17 which contends that the primary judge "had prejudice" towards Ms Huang or "was in apprehension of bias" in dealing with the expert evidence. As a further example, ground 28 alleged that the primary judge was biased in favour of Dr Xiao, stating that "[h]is Honour had prejudice to me adversely on my credibility, was in apprehension of bias in weighing of the evidences, erred in favour of the perjuries made by the second respondent, [sic]" (emphasis in original). 79 The test to be applied in determining whether an apprehension of bias arises on the part of the judicial officer is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]. That would require Ms Huang to demonstrate "a logical connection between the matter [said to give rise to the apprehension of bias] and the feared deviation from the course of deciding the case on its merits": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 80 Nothing raised in grounds 17, 20 or 28 where the allegations are raised seeks in any comprehensible way to address the test for apprehended bias. They fall at the first hurdle in failing even to identify at all in the case of grounds 17 and 28, or with any clarity in the case of ground 20, the matter or matters said to give rise to the apprehension of bias. Nor is there any foundation given for the allegations of perjury against Dr Xiao alleged in grounds 24, 26 and 28. Ms Huang also sought to make similarly unsupported and scandalous allegations against the respondents at the hearing from the Bar Table. 81 The making of such unfounded allegations is entirely inappropriate and is not to be tolerated. As Gyles, Stone and Buchanan JJ stated in Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at [10]: … The processes of the Court and the Court itself are brought into disrespect if unreasonable relaxation of ordinary standards is extended to litigants in person simply for the reason that they are without legal assistance. There is no basis to think that the rights of any litigant in person are infringed or diminished by the steady insistence that proceedings in this Court are not be used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all. 82 To similar effect, Mansfield J said in Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42; [2010] FCA 413 at [34]: First, as has been remarked in other judgments in which Mr Kowalski has been a party, he is prone to make scandalous offensive and unsubstantiated allegations about public figures, about judges or administrative decision makers, and about the solicitors and counsel appearing in those matters. Even allowing for him being a litigant in person, those allegations are entirely inappropriate. He seems to be unable to accept that others might in good faith take a different view about certain things. Whether or not a different view is erroneous, there is no basis for asserting that the person taking that view is attempting to pervert the course of justice, or is lying, or is acting unprofessionally. Those sorts of assertions, or like offensive epithets, should not be tolerated. 83 Not only, therefore, are the grounds of appeal to the extent to which such allegations are made, incompetent by reason of their failure to plead any comprehensible basis for the allegations. They also constitute an abuse of process.

3. Conclusion 84 For these reasons, I dismiss the appeal and order that Ms Huang be liable for the University's costs of and incidental to the appeal proceedings and the interlocutory application. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.