(1) The application as against the first, second and third respondents is dismissed with costs.
[3]
Hong Cui Huang is a former PhD student at the University of New South Wales ("the University"). She did not obtain her degree and holds the University and Dr Boban Markovic (her supervisor) and Professor Chris Winder (her co-supervisor) responsible. Ms Huang has applied to the Court under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act") seeking compensation in relation to asserted sex, racial and disability discrimination which she believes frustrated her studies. The documentation filed by Ms Huang in support of the application is voluminous. Essentially, however, Ms Huang complains of sexual harassment in 1999 by Professor Winder and by Dr Markovic and alleges inappropriate comments by Dr Markovic in 2001. Ms Huang also makes sexual harassment allegations against two other persons who are not the subject of this present proceeding.
The application was amended in 2004 in order to add allegations of racial discrimination and disability discrimination in relation to the cancellation of Ms Huang's PhD enrolment. The racial discrimination is said to stem from Ms Huang's limited command of the English language. The disability discrimination is said to be based upon Ms Huang's asserted anxiety and depression.
Ms Huang made two relevant complaints to HREOC. The first complaint (of sexual harassment) was terminated by a delegate of the President of HREOC on 28 July 2003 pursuant to s.46PH of the HREOC Act. The complaint of sexual harassment against Dr Markovic was terminated on the basis that there was no reasonable prospect of a successful conciliation in relation to the alleged events in 2001 and in relation to the balance, the complaint was made more than 12 months after the alleged events took place. The complaint of sexual harassment by Professor Winder was terminated on the basis that the events took place more than 12 months before the complaint was made.
The second termination was made by a delegate of the President on 26 May 2004. This related to the complaints of racial discrimination and disability discrimination. The notice was issued pursuant to s.46PH of the HREOC Act on the basis that the complaints related to alleged events occurring more than 12 months before the complaints were made.
Ms Huang also alleged victimisation as a result of complaining of sexual harassment and also because of her complaints of racial and disability discrimination. I ruled that I had no jurisdiction to entertain the application insofar as it was based on the victimisation allegations[2]. However, I modified that ruling on 5 June 2006 upon the basis that Ms Huang had referred to alleged victimisation in her first complaint to HREOC, and, although HREOC had declined to accept a complaint of victimisation in later correspondence, Ms Huang was free to put a different legal characterisation on her complaint (which was terminated) than had been put on it by HREOC. I confirmed that I could not consider allegations of victimisation which post date the termination of the complaint.
The respondents deny any sexual harassment and deny any unlawful discrimination or victimisation.
Ms Huang gives extremely detailed particulars of her claims in a statement of particulars filed on 29 October 2004. She amended this statement by a statement of amended particulars filed in court by leave on 13 February 2006. Ms Huang relies upon ss.28A, 28F, 106 and 21(2) of the Sex Discrimination Act 1984 (Cth) ("the SDA") in relation to the sexual harassment allegations.
Ms Huang asserts direct sex discrimination contrary to ss.5(1), 21(2)(a)(c) and 106 of the SDA by the University and Dr Markovic.
Ms Huang alleges direct disability discrimination by the University and Professor Winder contrary to ss.5(1), 10, 11 and 123 of the Disability Discrimination Act 1992 (Cth) ("the DDA"). Ms Huang also alleges indirect disability discrimination by Professor Winder and Dr Markovic contrary to ss.6 and 123 of the DDA and asserts liability by all three respondents.
The factual history of the parties' dealings leading to the complaints by Ms Huang is quite detailed, but is accurately summarised in the respondents' written submissions[3]. I adopt that summary with minor amendments.
The genesis of the Ms Huang's complaints is the decision by her PhD supervisors not to support her re-enrolment as a PhD candidate in 2002.
Between 1995 and 1997 Ms Huang was enrolled as a candidate for a Master of Environmental Studies degree by course work. The second respondent (Dr Markovic) supervised a research project that Ms Huang undertook as part of that degree[4]. Before completing the requirements for the Master degree Ms Huang applied to undertake a PhD. Her application was initially unsuccessful[5] but was approved after Dr Markovic requested the Higher Degrees Committee to reconsider her application. Ms Huang deferred commencement until 1999[6].
Ms Huang commenced her PhD candidature in 1999[7] and was awarded a one year scholarship of $16,135. Her supervisor was Dr Markovic and her co-supervisor was Professor Winder. There are progression requirements for PhD candidates[8]. By late 1999 Ms Huang had not submitted either a research proposal or a literature review despite being requested to do so[9].
Ms Huang withdrew her enrolment in 2000[10]. A progress review was conducted in October 2000 and required completion of a statement of research question, literature review, a project plan and biohazard training by June 2001[11]. Preliminary laboratory experiments were required to be completed by December 2001.
In 2001 Ms Huang initially re-enrolled as a full time candidate[12] but subsequently changed this to part time[13]. Dr Markovic asked Ms Huang on 31 January 2001 to prepare a proposed plan of research work and advised her that the first objective that should have been met was a review of literature[14]. Professor Winder informed Ms Huang that the University and Faculty were urging schools to improve student performance in research degrees and Heads of School were being called upon to justify continuing enrolments. He urged Ms Huang to consider her position carefully[15].
A formal review of Ms Huang's progress was undertaken on 26 March 2001[16]. Her progress was determined to be unsatisfactory. In particular she had not collated a literature review or commenced her laboratory research work. A timetable for the submission of work was proposed and accepted by Ms Huang. Ms Huang did not complete her literature review, statement of research question or research plan by June 2001. Dr Markovic repeatedly requested Ms Huang for this work throughout 2001[17] and warned her that if she could not provide these then he would not recommend her re-enrolment[18].
Ms Huang also sought to defer laboratory training because of a court case that she was involved in and advised that she would attempt to submit her research to date by 9 July 2001[19]. She acknowledged on 18 June 2001 that her re-enrolment for 2002 might not be supported because of her failure to make progress. Dr Markovic encouraged Ms Huang to consult the student counselling service if her private concerns were affecting her work[20].
Ms Huang did not submit any work by 9 July and apologised on 4 July[21] for not completing her literature review and asked to defer laboratory training until the end of July 2001[22]. Dr Markovic urged her to seek medical help and help from the student counselling service to assist with her personal health problems. He also extended the date for submission of the literature review and commencement of training to 1 August 2001 and suggested that Ms Huang not proceed with training until she had completed her literature review and research plan[23].
Dr Markovic had a meeting with Ms Huang in early July 2001 and received emails from her in which Ms Huang expressed the view that the literature review was not important and that she wished to finish the experimental work as soon as possible[24]. He reminded her of the standard approach to PhD research work and asked her to provide evidence of her progress. Ms Huang expressed the hope that she would be able to fulfil the project requirements[25].
Ms Huang was asked to attend for laboratory training on 17 July 2001[26]. She did attend but the results were not good[27]. She requested that her training be repeated[28]. On 6 August 2001 Dr Markovic continued to encourage Ms Huang to seek assistance from student counselling services and the student medical centre to deal with any personal and other health issues she might have but also advised her that she had to make significant progress if she wished to be allowed to re-enrol in 2002[29].
Ms Huang thanked Dr Markovic and said that she would try her best to meet the requirements by the end of 2001 including the literature review and research plan[30]. She maintained that she was working on her literature review throughout August and September 2001[31]. Dr Markovic encouraged Ms Huang's laboratory work and advised her to read the literature he had directed her to but told her on 12 September that if a suitable review of literature had not been submitted and significant research began by 1 December 2001 he would not be recommending re-enrolment in 2002.
Ms Huang had difficulty solving extraction problems she had been asked to work on, seemed to abandon the exercise[32] and to take up a new exercise that had not been allocated to her[33].
On 13 September 2001 Professor Winder suggested that Ms Huang give strong consideration to her continued enrolment in a PhD with a view to transferring to a less demanding program such as an MSc.
A literature review was finally submitted to Professor Winder and Dr Markovic on 28 September 2001[34]. The work submitted by Ms Huang was considered to be well below the minimum standard expected of a student in her second year of study for a PhD[35]. Professor Winder returned the draft to her with annotations and she was requested to resubmit the next draft by the end of November as part of her annual review. Professor Winder told Ms Huang that if the draft she had submitted had been considered as part of her annual review he would not be recommending her re-enrolment.
By late September 2001 Ms Huang was not making equivalent progress in laboratory techniques as other students were[36]. Dr Markovic encouraged her to work as part of a team to assist the development of her skills. Ms Huang complained about this arrangement to Professor Winder and Jonathan Hulme of the Post Graduate Board[37].
In October 2001 Ms Huang was again urged to consult the counselling service by both Professors McLachlan and Winder[38].
On 16 October 2001 Professor Winder forwarded documents from the Student Centre to Ms Huang and informed her of the change in DETYA policy concerning support to long term research students.
Ms Huang re-submitted her literature review on 30 November 2001[39]. She acknowledged that the work had limitations. Dr Markovic provided his comments on 31 December 2001[40] and Professor Winder on 3 January 2002[41]. Neither of her supervisors thought that the submitted work was of the standard required for a PhD student and Ms Huang was advised that Dr Markovic was reluctant to allow her to continue with her research project unless she could provide a detailed plan of how she would complete a literature review of adequate standard and a clear work plan with adequate dates of how she would complete her research work. Professor Winder sent a letter confirming that Ms Huang should submit an updated literature review and research plan by the beginning of session 1 of 2002 so that they could be evaluated prior to enrolment for 2002.
An annual research review meeting was scheduled for Ms Huang on 25 January 2002[42] which she did not attend[43]. On 30 January Ms Huang sent a medical certificate to Professor Winder saying that she was medically unfit to attend work for the period 22 to 30 January 2002 because of anxiety and chronic back pain[44]. Ms Huang subsequently spoke to Dr McIntosh about her candidacy[45].
It was suggested that Ms Huang enrol as an MSc candidate if she wished to continue in 2002[46].
Dr Markovic had a number of meetings with Ms Huang in late January and February 2002 about her literature review and research plan[47]. She submitted a draft research plan in late February 2002[48] with the assistance of Ms Leonte and Ms Gardner. It was considered inadequate by Professor Winder[49] and she was asked to finalise the plan by 4 March so that it could be assessed. Ms Huang asked for various personal problems to be taken into account when assessing her progress[50].
Ms Huang did submit a final research plan which was assessed by both Professor Winder and Dr Markovic. She did not submit a revised literature review prior to the enrolment date for 2002. They both considered the plan to be inadequate[51]. Particular problems identified by Ms Huang's supervisors were failure to provide a literature review of the necessary standard, a lack of depth of analysis, poor understanding and language problems. Dr Markovic recommended that she not be enrolled in further research study. Professor Winder advised Ms Huang that he would be recommending to the Higher Degree Committee of the Faculty that her candidature in the School's research program be terminated forthwith.
Ms Huang consulted a range of people at the University concerning her candidature. These included Professor McLachlan (PVC Research) who was consulted from December 2001[52], Jonathan Hulme (Postgraduate Board) in November 2001, Ross Granger (Postgraduate Board) in September 2001[53], Diane Gardner (Grievance Officer, School of Safety Science) in late October 2001[54], the Student Counselling Service from 24 October 2001[55].
On 22 March 2002 Ms Huang raised an allegation of sexual harassment against her supervisors for the first time[56]. She was referred to the Equity and Diversity Unit and had a meeting with Ms Frank of that Unit on 25 March 2002.
At that meeting she provided Ms Frank with a draft complaint addressed to Professor McLachlan[57]. Ms Frank kept detailed notes of her meeting with Ms Huang[58]. Ms Huang raised a lot of issues concerning her PhD candidature most of which related to academic grievances rather than unlawful discrimination. In response to a query from Ms Frank about why she did not change supervisors Ms Huang gave as one of her reasons 'Chris Winder touched her thigh in 1999 (not repeated)'[59]. Ms Frank discussed different alternatives for lodging a complaint of sexual harassment with Ms Huang and provided her with information on unlawful discrimination[60]. Ms Huang advised her that she was not sure if she wanted to pursue the allegations, that she just wanted to get on with her PhD, that she was not clear of her standing and that she did not want to raise sexual harassment issues if she could stay on.
Ms Huang had another meeting with Ms Frank on 2 April 2002 during which Ms Frank attempted to clarify her allegations of unlawful discrimination[61]. It was suggested that Ms Huang redraft her complaint to include all the facts as well as her feelings to support the allegations wherever possible. A meeting was arranged with Mr Hulme to discuss the possibility of Ms Huang continuing with her PhD on 10 April 2002[62]. A further meeting was held on 7 May 2002[63].
Ms Huang was given advice as to avenues available to her concerning her enrolment and her entitlement to appeal any decision of the Higher Degree Committee about her enrolment. Dr McIntosh provided a report dated 23 May 2002 and made submissions to the Higher Degree Committee which was due to meet on 11 June 2002 to consider Ms Huang's enrolment status. Ms Frank advised Ms Huang that this Committee would not consider her complaint of unlawful discrimination[64].
On 21 May 2002 Ms Huang informed Ms Frank that she was putting in a complaint[65]. Ms Huang wrote a letter of complaint to the University on 7 June 2002 which is the same document that was attached to her complaint to HREOC dated 11 July 2002.
The Higher Degree Committee determined on 11 June 2002 that Ms Huang show cause why her enrolment should not be cancelled in response to the School's determination that her progress was unsatisfactory[66]. Ms Huang's complaint of 7 June 2002 was considered as part of her show cause response. Ms Huang was given leave for session 1 of 2002[67]. On 16 July 2002 the Higher Degree Committee determined that Ms Huang's enrolment as a PhD candidate should be cancelled[68].
Following this decision the Assistant Registrar reviewed Ms Huang's submissions under the University's grievance policy. On 5 September 2002 she advised Ms Huang of the outcome of her review[69] which concluded that her progress in the PhD program was unsatisfactory and that the decision of the Higher Degree Committee was appropriate. The Assistant Registrar could find no evidence of unfair treatment and remarked that there seemed to be a clear mismatch between Ms Huang's understanding of what constituted a research project of the magnitude and complexity required of a PhD candidate and that of the University. There also appeared to be a mismatch between Ms Huang's expectations of how she could achieve a PhD when by her own admission she was experiencing difficulties in her personal life.
Ms Frank investigated Ms Huang's allegations of unlawful discrimination and provided a report on the outcome to the Registrar[70]. Ms Huang was provided with a report on the outcome[71]. Ms Frank was unable to substantiate the majority of her complaints and did not find any pattern of systemic unlawful discrimination against Ms Huang. Although Dr Markovic denied making the comment alleged by Ms Huang it was recommended that he undergo counselling which he underwent.
Ms Huang made allegations of plagiarism and fraud against Dr Markovic[72]. These allegations were also investigated by the University which found that her allegations were not supported[73]. In fact Ms Huang acknowledged during the investigation that the results of experimental work conducted by her were not used by Dr Markovic at all and a photograph used in an article published jointly by her and Dr Markovic had been taken by him[74]. However, the investigation found fault on the part of Dr Markovic as a supervisor and also found that he had breached the University's code of conduct in failing to acknowledge the contribution of his students (including Ms Huang) to a poster he presented. Professor McLachlan in her report also expressed serious concern about the level of research training undertaken in Dr Markovic's laboratory.
Ms Huang exercised her right of appeal from the decision to cancel her PhD candidature. In October 2002 the Appeal Sub-Committee of the Academic Board upheld her appeal on the grounds that there was an error of fact relating to Ms Huang's enrolment as presented to the Higher Degree Committee, that there was a lack of documentation of Ms Huang's medical condition and the degree to which this had disrupted her research and that she may have received mixed signals as to her progress from the support that had been given by her supervisors for an APA scholarship[75].
Ms Huang was asked by the Deputy President of the Academic Board on 10 March 2003 to consider whether her current situation was such that she could commit herself fully and unequivocally to the pursuit of her research and what supervision arrangements she envisaged and advise him of her response by 7 April 2003[76].
Ms Huang has not sought to re-enrol at the University.
[4]
Ms Huang relies upon her own voluminous affidavit material as well as affidavits by her mother and her sister. Ms Huang also subpoenaed the following persons to appear to give oral evidence:
Dr Terry Kohler;
Dr Jagdeep Sachdev;
Dr Nicholas Harvey;
Mr Shamasuzzaman Uzzaman;
Ms Rola Azzi;
A number of other subpoenas prepared by Ms Huang were either not accepted or discharged at the interlocutory stage of the proceedings.
Ms Huang also subpoenaed a substantial volume of documents from various sources. Some of those subpoenas were enforced but others were rejected or discharged.
Ms Huang continued to attempt to issue subpoenas until shortly before the commencement of the trial of this matter in February 2006 and continued to attempt to file affidavits during the trial. Because Ms Huang had paid no regard to orders by me setting time limits for filing affidavits, I directed that no further documents be accepted from her for filing except by leave.
Ms Huang sought at the trial to rely upon the following documentary evidence which I received in whole or part:
[5]
Information Sheet and 2 Letters of Termination with annexures
[6]
Submission/argumentative, interlocutory, not relevant
[7]
Correspondence received as evidence only of fact of correspondence
[8]
Repetitive, not relevant, argumentative, unfairly prejudicial
[9]
Not relevant, interlocutory, submission / argumentative
[10]
I gave reasons for my evidentiary rulings excluding evidence of asserted victimisation[77]. Ms Huang unsuccessfully appealed against my evidentiary rulings[78]. However, in the light of the observations made by Lindgren J at [10] of his appeal judgment, on 5 June 2006 I provided Ms Huang with the opportunity to revisit my evidentiary rulings and to produce further evidence relevant to her two terminated complaints that had not previously been accepted. In order to remove any doubt that it was before me as evidence, I marked as an exhibit[79] a bundle of documents relating to the termination of Ms Huang's second complaint to HREOC. I also received certain paragraphs of Ms Huang's affidavits that I had previously rejected as irrelevant, which could be related to Ms Huang's terminated complaints to HREOC that she may now characterise as a complaint of victimisation.
The respondents rely upon:
the affidavit of Dr Boban Markovic made on 13 January 2005 and filed on 14 January 2005, to which there are 26 annexures;
the affidavit of Professor Christopher Winder made on 23 December 2004 and filed on 14 January 2005, to which there are 31 annexures; and
the affidavit of Sybille Frank made on 10 January 2005 and filed on 14 January 2005, to which there are eight annexures, and her affidavit made on 6 February 2006, and filed on 10 February 2006.
[11]
My summary of the evidence of witnesses is set out at Annexure A to this judgment.
[12]
The evidence was completed with the tender of a number of additional documents by Ms Huang. I accepted documents tendered which related in some way to the evidence of Ms Frank or which plainly had some bearing upon the issues in dispute between the parties and about which there was no doubt as to the authenticity or provenance of the documents. I rejected the tender of additional documents by Ms Huang where the provenance of the documents or their authenticity was unknown or doubtful.
The final list of documents tendered was as follows:
A1 Medical Certificate dated 3 April 2001;
A2 Medical Certificate from Dr Chen dated 16 January 2001;
A3 Prince of Wales Hospital Mental Health Assessment of Ms Huang dated 6 August 2003;
A4 Centrelink Medical Certificate dated 29 April 2003;
A5 Bundle of documents from Healthquest;
A6 Bundle of Receipts;
A7 Letter from Dr Ellis dated 19 May 2000;
A8 Bundle of documents relating to issues of pain & physical injury;
A9 Bundle of notes beginning with Royal Prince Alfred Hospital document;
A10 Notice of Termination dated 26 May 2004 & annexures;
A11 Commencing with letter dated 21 August 2002 from UNSW re counselling consultations;
A12 "Report about my PhD Research";
A13 Bundle of documents from Dennis & Co;
A14 Bundle of documents relating to Ms Huang's damages;
A15 Letter from Professor Cross to Professor Kennedy dated 7 July 1999;
A16 Bundle of documents headed "Development of an In Vitro Toxicological Test Method...";
A17 Two documents headed "Case Summary" and "Case Conduct Form";
A18 Bundle of documents headed "Re: unfair treatment of my PhD research";
A19 Two Training Certificates;
A20 Case summaries of Post Graduate Board of NSW;
A21 Bundle of documents headed "HH-U15";
A22 Document headed "Hong's Complaint";
A23 Bundle of emails re Ms Huang's enrolment status all dated early 2002;
A24 Transcript of Ms Huang's Academic Record as at 7 May 2002;
A25 File note taken by Ms Frank after the meeting on 7 May 2002;
A26 Bundle of Higher Degree Committee documents;
A27 Handwritten note of Ms Frank's dated 5 August 2002;
A28 Email to Professor Chris Winder from Jane Gatwood dated 8 August 2002;
A29 Handwritten file note of Ms Frank's dated 21 August 2002;
A30 Email to Ms Frank from Jane Gatwood dated 21 August 2002;
A32 (HH-HREOC-CF) Letter to HREOC from Ms Huang & attachments (attached to submission 7);
R1 Letter to Dr Harvey from Ms Huang dated 9 December 2000;
R2 Record of interview dated 9 August 2002;
R3 Course withdrawal and leave application;
R4 Document dated 10 March 2003 to Ms Huang from AH Dooley;
R5 Two forms headed "confirmation of research details" & "report on progress of research student".
At the suggestion of Ms Oakley, I gave leave for Ms Huang to file and serve by 31 October 2006 a single affidavit of no more than 50 pages giving evidence in reply to the oral evidence of the respondents' witnesses presented at the hearing. I took this action noting the length of the hearing and the extensive nature of the oral evidence adduced. Ms Huang was unable to comply with the deadline due to illness and stress and was granted various extensions of time. The affidavit was eventually filed on 29 May 2007 and comprises 109 pages, with an eight page calculation of losses claimed attached (the claim was for $13,814,397.47) and a further 156 pages of exhibits. I nevertheless received those documents into evidence. Ms Huang sought and was granted the opportunity to file an amended affidavit correcting errors she had identified in the affidavit in reply. That affidavit was filed on 23 November 2007 and I received it. A revised table of claimed losses is annexed to it which details claimed quantifiable damages of $27,105,712.00 (my own calculation from the same table is $9,179,731.80) plus a claim for future unquantified damages.
[13]
I invited written submissions from the parties. Pursuant to s.51 of the Federal Magistrates Act 1999 (Cth) I directed that written submissions be limited to 50 pages. Ms Huang proved unwilling or unable to comply with that direction.
Ms Huang's written submissions were filed on 29 May 2007 and comprise 395 pages. Relevantly, she makes the following points:
[14]
she details her background, her traditional education and Chinese culture and her distinctive personality as well as her lack of knowledge of legal matters;
2. she seeks to explain her long period of silence before raising her complaints of sexual harassment and discrimination by reference to her personality and mental state;
[15]
she details what she sees as a strong academic background with great prospects for the future prior to the events she alleges;
[16]
she details her research work in 1999;
2. she details her allegations of unlawful sexual harassment, discrimination and victimisation as well as plagiarism against Dr Markovic and her allegations of unlawful sexual harassment, discrimination and victimisation against Professor Winder;
3. she details her asserted disability and what she describes as "ongoing victimisation" against her by various staff and other PhD students and the alleged adverse impact upon her mental state;
4. she details what she describes as "victimisation, discrimination and contempt of court" in the course of the present legal proceedings;
5. she details her PhD candidature and her ultimate success in challenging the decision to cancel her enrolment and what she describes as the first respondent's unwillingness to implement that decision; and
6. she details what she describes as her severe and permanent mental injuries and her other damages and loss.
The respondents' submissions were filed on 3 August 2007. Ms Oakley relevantly submits as follows:
[17]
the only allegation of sexual harassment made against Professor Winder is a relatively small matter of touching Ms Huang's hip while passing in a corridor some time in 1999 and the allegation has not been proven, either as a fact or as establishing sexual harassment. Ms Huang's evidence is unreliable and has been embellished over time. Her claims are uncorroborated and are inconsistent with the known facts;
2. the two allegations of sexual harassment against Dr Markovic have not been proven either as facts or as establishing sexual harassment. The first allegation relating to training of students in relation to laboratory safety in 1999 could not amount to sexual harassment even if the asserted facts are in substance true. Dr Markovic denies any sexual harassment of Ms Huang and his evidence should be accepted. Even if Dr Markovic made a comment about Ms Huang's marital status (which is not accepted) it does not constitute sexual harassment;
[18]
it is not accepted that a complaint of racial discrimination is before the Court, but if it is it is misconceived. Ms Huang was not treated less favourably on account of anything related to her race or ethnic background. The simple facts are that she had difficulty working to the standard expected of her but took advantage of her right to challenge the adverse decision to exclude her from the PhD programme and was successful;
[19]
Ms Huang's allegations of disability discrimination are unclear and it is doubtful that the University was aware that Ms Huang suffered from a disability. In any event, she was not treated less favourably than any comparable PhD candidate and in fact was afforded special accommodations;
2. it is not conceded that a complaint of victimisation was terminated by HREOC but in any event Ms Huang has not identified the detriment she alleges she was subjected to. There is no evidence of Ms Huang raising her allegations of sexual harassment prior to 22 March 2002;
3. Ms Huang has contrived to draw a link between her allegations of sexual harassment in 1999 and adverse decisions made concerning her progress in her PhD programme. Ms Huang was in trouble already in 1999 in the conduct of her PhD and so her difficulties were evident long before the incidents that she alleges. Ms Huang has made baseless allegations against witnesses and has sought to draw sinister conclusions from benign events. She is not a credible witness and her uncorroborated evidence should not be accepted.
Ms Huang filed written submissions in reply on 3 October 2007. In those submissions, which comprise 147 pages, Ms Huang takes issue (in great detail) with the content of the respondents' submissions. I permitted Ms Huang to file a summary of both of her submissions, which she did on 23 November 2007. Unfortunately, that document purports to raise new issues and is expressed in emotional language. I have disregarded allegations that were not the subject of evidence or earlier submissions.
Ms Huang sought and was granted the opportunity to amend her submissions in reply to correct errors. That document was filed on 23 November 2007. Apart from amending her submissions in reply, Ms Huang makes further allegations against the respondents in highly emotional terms. I have disregarded those allegations, which extend well beyond the parameters of the complaints the subject of these proceedings.
[20]
The issues to be determined in these proceedings are issues of unlawful discrimination. I set out at Annexure B to this judgment the relevant provisions of the HREOC Act, the SDA, DDA and the RDA.
[21]
Judges and Magistrates are required from time to time to deal with difficult cases. This has been a particularly difficult case. That is not because it raises difficult legal issues, or even because the relevant facts in dispute are particularly complex. This case has proven particularly difficult because the applicant (Ms Huang), although competent to conduct the proceedings, struggles with mental problems that are detailed in the evidence. It has been impossible to keep the proceedings within reasonable bounds because Ms Huang has been unwilling, or unable, to comply with the Court's directions for the conduct of the proceedings. The proceedings became exceptionally protracted, with far more material filed than was necessary or useful. Further, Ms Huang's mental state appears to have deteriorated over time, and the number and wildness of her allegations has also increased over time. Regrettably, the litigation process itself has probably been harmful to her. I am mindful of that, and have sympathy for her plight. She has suffered a great disappointment in her life which has affected her deeply. She has, however, chosen to commence and pursue her complaint to HREOC and these proceedings. She has made allegations against the respondents and others which, if untrue, must be very hurtful to those she has accused. The task before the Court is to identify, in the mass of material, what the real issues are and to deal with them. In that, I have been assisted greatly by the submissions made by counsel for the respondents, which I am grateful for.
The Court's jurisdiction under the HREOC Act is limited to a complaint to HREOC that has been terminated. Ms Huang's first complaint to HREOC is dated 11 July 2002[80]. The complaint form referred to a letter to Crystal Condous, UNSW dated 7 June 2002[81]. That letter gives details of a number of grievances. The only mention of unlawful discrimination is one of sexual harassment. The details of this allegation are set out in paragraph 1.3.1 of a document entitled 'Report of My Research in the School of Safety Science University of New South Wales'.
The complaints of sexual harassment were:
[22]
that in 1999 Dr Markovic when speaking to students in the laboratory raised both his hands 'likely to catch me' (paragraph 1.3.1.1);
2. that in about September 2001 while Ms Huang was training with two other students Dr Markovic said 'she has not been married but she needs sex. She is over 30 and near 40 but still has pimples in her face' (paragraph 1.3.1.2);
[23]
against the fourth respondent (paragraph 1.3.1.2);
[24]
that in the second semester of 1999 Professor Winder touched her hip in a passageway when a door opened (paragraph 1.4.1.7).
There was also an assertion that Ms Huang was discriminated against on the grounds of her English proficiency (paragraph 1.5 dot point 10 first sentence). This was not considered by HREOC to be a complaint of racial discrimination[82] and Ms Huang was notified on 14 August 2002 that it was not able to inquire into that aspect of the matter. Ms Huang was also requested to provide further details of her complaint of sexual harassment.
Ms Huang replied to HREOC on 3 September 2002. She made broad-ranging allegations of discrimination but these were not expressed to be allegations of unlawful discrimination. She also asserted that her English proficiency constituted a disability. In paragraph 6 Ms Huang alleged that one of the reasons there were problems with her 2002 re-enrolment was unhappiness from the incidents of sexual harassment that occurred during her PhD candidacy. Assertions were made under the heading 'Victimisation' (paragraph 12) but do not give details of any breach of s.94(2) of the SDA_,_ s.42 of the DDA or s.27(2) of the RDA_._
On 28 July 2003 HREOC terminated the complaints outlined in paragraph 65(a) and (d) above pursuant to s.46PH(1)(b) of the HREOC Act and the complaint outlined in paragraph 65(b) above pursuant to s.46PH(1)(i) of the HREOC Act.
Ms Huang filed an application pursuant to s.46PO on 21 August 2003.
On 2 April 2004 Ms Huang lodged a second complaint with HREOC[83]. In that complaint Ms Huang alleged that she had been treated less favourably because of her race and that it was assumed that her English was too poor to complete a PhD. In support of this allegation she referred to a letter from Professor Winder dated 4 March 2002[84].
Ms Huang also alleged that she was treated less favourably because of a disability. She alleged that she was very stressed, developed a nervous disorder, was anxious and suffered from depression. She alleged that because of physical injuries and personal difficulties (stress) she was forced to take one year off and come back part time. In support of this allegation she referred to paragraphs 2 - 3 of Professor Winder's letter of 4 March 2002 and her letter dated 13 September 2001[85].
This complaint was terminated on 26 May 2004 pursuant to s.46PH(1)(b). Ms Huang filed a further application on 12 July 2004.
The applications were heard together.
[25]
I accept the respondents' submission that the allegations of unlawful discrimination that arise from the two terminated complaints appear therefore to be the allegations of sexual harassment against Professor Winder and Dr Markovic made in the first complaint, an allegation of racial discrimination based on English proficiency and a complaint that Ms Huang was treated in some unspecified manner less favourably on the ground of a disability. Although HREOC did not identify a complaint of victimisation it is possible that Ms Huang raised the issue of victimisation in her first complaint and I have considered that issue.
The very large number of additional allegations against the first, second and third respondents are not relevant to the issues before the Court, with the exception of those dealt with in these reasons.
I accept also the respondents' submission that the issues for determination are:
[26]
whether Ms Huang has proved the factual matters that form the basis of her terminated complaints of unlawful discrimination against the first, second and third respondents;
2. if the Court is satisfied that the factual allegations are made out, whether those matters constitute unlawful discrimination within the meaning of s.3 of the HREOC Act;
[27]
if the Court determines that any of the first, second or third respondents is guilty of unlawful discrimination of Ms Huang what remedy, if any, is appropriate.
[28]
Ms Huang did not allege to HREOC that either Dr Markovic or Professor Winder made an unwelcome sexual advance or requested sexual favours from her. Her allegations should be seen as an allegation that each of them engaged in other unwelcome conduct of a sexual nature in breach of s.28A(1)(b) of the SDA.
I accept the respondents' submissions concerning the legal principles to be applied. In Cate v International Flavours & Fragrances (Aust) Pty Ltd[2007] FMCA 36 at [77] McInnis FM approved the interpretation of the words 'sexual nature' in two Victorian cases.
The second of those was AB v Adult Multicultural Education Services[2006] VCAT 1862 where Judge Davis said:
It is clear from section 85 of the Act that "conduct of a sexual nature" is confined to words or conduct of a sexual nature which can be characterised as sexual or sexually-related. The term has a broad scope and essentially relates to matters which have to do with sexual activity or attraction or relationships. It may refer to physical activities such as touching, pinching or patting in a sexual manner, or may refer to other words or conduct, such as commenting on parts of a person's body regarded as having a sexual function, requesting sexual intercourse, explicit language, indecent exposure, offensive telephone calls, offensive hand or body gestures. Whether conduct or a statement is "sexual" may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time
Sexual harassment in the workplace is likely to be covert, and generally speaking, occurs when a person is subjected to unsolicited and unwelcome sexual conduct by another where that person knows or ought to have known that the conduct was unwelcome. The test to be applied to determine whether conduct is of a sexual nature is an objective one and does not take into account the motivation of the perpetrator or the individual. Rather, regard must be had to all the circumstances.
In that case Judge Davis referred to his own earlier decision of Te Papa v Woolworths Ltd trading as Safeway [2006] VCAT 122 (Te Papa):
While section 85(2) defines conduct of a sexual nature inclusively and not exhaustively, it is clear from the terms of the section that it is confined to acts or statements of a sexual nature related to sexual matters or which can be characterised as sexual or as sexually-related. The term relates to matters which have to do with sexual activity or attraction or relationships. Within this broad category, the term may refer to many things, including: requests for sexual intercourse, love letters, invitations to date, comments about parts of the body which are generally regarded as having a sexual function or about a person's sex life, physical contact such as patting, pinching or touching in a sexual way, indecent exposure, offensive telephone calls, offensive hand or body gestures. Whether conduct or a statement is "sexual" may depend on the circumstances, including where and when and how the conduct occurred, and the understanding of the participants at the time.
In Hall v A & A Sheiban Pty Ltd[1989] FCA 72; (1989) 85 ALR 503 the Full Federal Court expressed the view that s.28(3) of the SDA[86] was capable of including a single incident. However, Wilcox J also said (at 531):
[29]
Unwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment. The word "harass" implies the installation of fear or the infliction of damage, as is indicated by the definition of the term in the Macquarie Dictionary: 1. to trouble by repeated attacks, incursions etc. as in war or hostilities; harry; raid; 2. to disturb persistently; torment, as with troubles, cares, etc."
[30]
The only allegation of sexual harassment made to HREOC against Professor Winder is that he touched Ms Huang's hip while passing her in a corridor in the second semester of 1999. I accept that an incident occurred but I do not accept that it constitutes sexual harassment within the meaning of s.28A of the SDA.
Professor Winder's evidence does not resolve the issue. He has no recollection of the incident. He denies deliberately touching Ms Huang or touching her with sexual intent[87]. He had no recollection of any physical contact with Ms Huang in 1999 or 2000[88].
I have several concerns about Ms Huang's evidence concerning the incident, which are dealt with in the respondents' submissions. First, Ms Huang waited for more than two years before mentioning the incident. The incident is alleged to have occurred in 1999 but Ms Huang said nothing about it until 22 March 2002. When she did mention it she was promptly referred to the University's Equity and Diversity Unit[89].
Ms Huang sought to explain the delay in reporting her allegation by her ignorance of discrimination laws but she brought the document containing the allegations of sexual harassment with her to the meeting with Ms Frank on 25 March 2002[90]. A copy of the document that she provided to Ms Frank is HH-P4 and an earlier draft is Ex P2. Ms Frank provided copies of the University's policies on harassment and discrimination grievances and general information on these matters to Ms Huang at that meeting[91].
The allegation was made shortly after Professor Winder had informed Ms Huang on 4 March 2002 that he would be recommending to the Higher Degrees Committee that her PhD candidature be terminated because of a failure to make academic progress[92]. The timing was not coincidental. I accept the respondents' submission that the allegation was part of Ms Huang's efforts to be re-admitted to the PhD programme.
Secondly, Ms Huang has changed and embellished her account of the incident over time. Her initial allegation in 2002 was that 'one day when I passed the passage from the printing room of the school he touched my hip'[93]. In her 29 October 2004 affidavit she deposed that 'he stretched out his right arm towards me and touched me on the hip.'[94]. In her oral evidence Ms Huang said that Professor Winder had caressed her[95]. Her submissions allege 'affectionate stroking' and give further details[96] but such detailed recollection is inconsistent with Ms Huang's oral evidence that she did not see Professor's Winder's hand[97].
Thirdly, the timing of the incident is uncertain. Ms Huang only recalled that the incident was in late semester two of 1999 after being told in Ms Frank's report[98] that Professor Winder was overseas for much of semester 2 in 1999.
I accept that there was some physical contact between Professor Winder and Ms Huang as they passed each other in the corridor in late 1999 but there is nothing reliable to establish that the incident complained of constituted sexual harassment within the meaning of s.28A of the SDA. I find that, in all probability, the contact that occurred between Professor Winder and Ms Huang was accidental and non sexual as they passed in the corridor.
I also accept the respondents' submission that Ms Huang could give no reasonable basis for her allegation that the incident constituted sexual harassment. Relations between Ms Huang and Professor Winder both before and after the alleged incident were confined to educational matters. Ms Huang conceded that Professor Winder had not engaged in conduct of a sexual nature apart from the single alleged incident. No discomfort is apparent on Ms Huang's part in her dealings with Professor Winder after the alleged incident. He continued as her co-supervisor. She asked him to do her favours. She complained to him when Dr Markovic did not accede to her requests. Examples include her requests to Professor Winder to provide her with work when Dr Markovic had told her that none was available[99], that he write to Centrelink to overcome difficulties with her unemployment benefit[100], that he provide her with a new computer[101] and that he authorise her attendance at short courses without payment[102].
I reject the allegation of sexual harassment against Professor Winder.
[31]
I accept the respondents' submission that there are two allegations of sexual harassment against Dr Markovic before the Court. The first allegation is that in 1999 when he was training a group of students he raised both his hands 'with lustfully laughing' and moved towards Ms Huang with his arms outstretched[103].
It is not disputed that Dr Markovic trained groups of students in laboratory safety measures in late 1999, that Ms Huang attended at least one such session or that he spoke of the correct disposal of broken glass. He also recalled Ms Huang asking a question at a training session[104]. However, Dr Markovic denies laughing lustfully and denies that he unlawfully discriminated against Ms Huang or that he sexually harassed her. None of the students present gave evidence.
Once again, I have concerns about Ms Huang's evidence concerning this alleged incident. First, she has embellished this alleged incident over time. For the first time during cross examination as to why she regarded the incident as sexual harassment she asserted that Dr Markovic said as he raised his hands 'I'll kill you'[105] (or 'I would kill you'). This is not an allegation she had made previously.
Secondly, Ms Huang conceded that Dr Markovic had not engaged in any conduct that indicated a sexual interest in her[106]. In all probability, what happened was that, during a laboratory safety training session in 1999, Ms Huang asked a question, possibly about the correct disposal of broken glass. Dr Markovic was concerned about Ms Huang's understanding of laboratory procedures and found the question amusing. He laughed and made some kind of grasping or throttling gesture with his hands, perhaps wishing to indicate the dire consequences of destruction of valuable equipment. He may also have said something to emphasise the point. It was intended as a joke and was not sexual in nature. The conduct does not come within ss.28A(1)(a) or (b).
Ms Huang also alleges that, some time in late August or September 2001, Dr Markovic made a remark about her marital status. Dr Markovic denies making the remark. Ms Huang alleged that Mr Uzzaman and another student were present when the remark was made.
Mr Uzzaman failed to corroborate the allegation. He did not recall such a comment being made[107]. He denied making such a comment himself[108] and had no recollection of conversations of a sexual nature[109].
Ms Huang's asserts in her submissions that Dr Markovic in meetings with Ms Frank had 'twice conceded he was engaged in making the sexual comments about me with Mr Shamasuzzaman Uzaman'. That is not supported by the evidence. Exs HH-P12 and P20 in fact reveal that Dr Markovic was adamant in his denial about making such a comment.
I accept Dr Markovic's denial that he said anything about a need for sex on Ms Huang's part. I prefer his evidence and the documentary record to Ms Huang's evidence. Further, both Mr Uzzaman and Mr Abayawickrama, who Ms Huang alleges were present, deny that Dr Markovic said anything of this nature[110].
In that document[111] Mr Abayawickrama did, however, provide some support for Ms Huang's allegation that Dr Markovic made a comment about her marital status. He said that Dr Markovic made a comment that Mr Huang got angry because she was over 30 and not married. Mr Abayawickrama, who lives in Sri Lanka, was not available to give evidence at the hearing and his recollection could not be tested.
I find that, on the balance of probabilities, Dr Markovic did make a comment about Ms Huang's age and martial status. The documentary record provides some support for the allegation. Further, in giving oral evidence, Dr Markovic was somewhat brusque and insensitive. Ms Frank's investigation also supported the allegation and Dr Markovic was required to undergo counselling. The remark was offensive and the remedy appropriate.
However, I accept the respondents' submission that the comment does not constitute sexual harassment within the meaning of s.28A of the SDA. It was not conduct of a sexual nature. It did not pertain to sexual activity or attraction or relationships. Such a remark does not come within the sexual harassment contemplated by the Federal Court in Hall v A & A Sheiban.
I reject the allegations of sexual harassment against Dr Markovic.
There is nothing to support any other alleged act of sex discrimination under the SDA.
[32]
Ms Huang alleges that both Professor Winder and Dr Markovic discriminated against her because they assumed that her English was too poor to complete a PhD and that Ms Huang's candidature was cancelled on that basis. While it is not clear how Ms Huang alleges such a view would constitute unlawful discrimination in breach of s.9, in oral argument Ms Huang agreed with me that the allegation is one of indirect racial discrimination, apparently on the basis that Ms Huang was required to read and write English in the PhD programme.
I agree substantially with the respondents' submissions on this issue. I incorporate below some of those submissions with amendments. The first problem with this claim is that Ms Huang's difficulties as seen by her supervisors had more to do with her lack of understanding of what was expected of her, rather than language difficulties.
In her submissions Ms Huang cites letters commenting on her first attempt at a literature review. These letters express her supervisors' views about the work she had submitted. The primary focus is the academic content although it is noted that the work contains an unacceptable number of language errors.
In cross-examination Professor Winder expressed the view that the standard of Ms Huang's submitted work was embarrassing[112]. He said that her analysis of documents was poor and that she demonstrated no synthetic or critical skills. While there were an unacceptable number of language errors he regarded that as something that could be fixed[113].
Ms Huang was invited to revise her draft. She presumably accepted the comments of her supervisors because she revised and re-submitted the literature review on 30 November 2001. In doing so Ms Huang acknowledged that her revised work was subject to limitations and expressed appreciation for the comments provided on her earlier draft. Unfortunately the revised literature review did not meet the standard required for a PhD candidate either and Ms Huang did not take up the invitation to resubmit the work for further review at the commencement of semester 1 in 2002.
Professor Winder and Dr Markovic did not in any event cancel her candidature. The Higher Degree Committee made that decision after a show cause procedure in which Ms Huang made submissions. She then exercised her right of appeal in respect of that decision.
The views expressed by Professor Winder and Dr Markovic about the quality of Ms Huang's submitted work have not been successfully challenged. The Appeal Sub-Committee of the Academic Board found when determining her appeal[114]:
[33]
It is clear that Ms Huang found the targets to be challenging and although she did attempt to meet these challenges we hold a similar view to her supervisor and co-supervisor on the inadequacy of her submission, albeit that there is some evidence of improvement in each successive submission.
[34]
I accept that Ms Huang was required by the respondents to work in English. I am not persuaded that Ms Huang was unable to comply with that requirement. Neither am I satisfied that the requirement was unreasonable. Ms Huang was attempting a higher degree at an Australian university where English is the normal language of instruction and submission. The claim of racial discrimination fails_._
[35]
I agree with the respondents' submissions that Ms Huang's allegation of discrimination on the ground of disability is unclear. She appears to allege direct discrimination on the ground of disability and the asserted disability appears to be her mental problems. Ms Huang, during argument, also referred to a claim of indirect disability discrimination but it has not been developed. I accept from the evidence of Dr Harvey, Dr Sachdev and Dr Dodwell, as well as the report of Dr Kohler, that Ms Huang suffers from the disabilities of obsessive/compulsive disorder, depression and anxiety, with an underlying vulnerable personality, including obsessive, compulsive personality traits. She also suffers from tritilmania. There is an immediate problem for Ms Huang's case against the respondents because it is central to her allegations that the respondents caused her disabilities, not that they acted as they did because of them. If the disabilities did not exist at the time of the respondents' conduct complained of, and were not then imputed to her, there could be no disability discrimination based on them.
I accept the respondents' submission that it is doubtful that the University was aware that Ms Huang suffered from a disability within the meaning of the DDA in 2001. It is apparent that Ms Huang did not bring her disabilities to the attention of the University in 2001. The reason she gave for the change from full time enrolment to part-time that year was because of Centrelink requirements concerning her unemployment benefit[115]. She did not indicate her part time enrolment had any connection with any health issue or disability.
Although Ms Huang from time to time complained of lack of concentration and other health issues she did not at any stage indicate that she had an ongoing disability. Whenever she complained of stress it was suggested that she consult the Counselling Service. She did not take up this suggestion until 24 October 2001[116].
She did obtain a medical certificate dated 18 June 2001[117] and may have provided it to her supervisors but it states that she was unable to attend school on 18 June 2001 and does not indicate any continuing problem.
I also accept the respondents' submission that it is clear from the evidence that Ms Huang was not treated less favourably than any other PhD candidate. In fact, the accommodation she was afforded such as extensions of time for submitting work probably constituted more favourable treatment than was given to other candidates such as Ms Azzi[118].
On the other hand, the decision of the Appeal Sub Committee of the University's academic board recognised that there was a lack of documentation of Ms Huang's medical condition and its impact upon her research. This confirms both a lack of knowledge by the University and Ms Huang's supervisors of her disability and a probable failure of administration. The University owes a duty of care to its students. It is beyond the scope of these proceedings but I am inclined to doubt that the University met its duty in the case of Ms Huang. The seriousness of her condition could, and probably should, have been detected and dealt with earlier and more efficiently.
I find the claim of disability discrimination unproven.
[36]
I accept and adopt, subject to my following observations, the respondents' submissions on this issue. Section 8 of the SDA and s.10 of the DDA do not apply to victimisation. One or more of the matters referred to in s.94(2) of the SDA must be a 'substantial or operative' factor in the detriment to which Ms Huang is subjected or threatened with (Obieta v NSW Dept of Education & Training[2007] FCA 86 at [240]; Damiano and Another v Wilkinson and Another[2004] FMCA 891 at [22]; Bailey v ANU(1995) EOC 92-744).
The respondents do not concede that a complaint of victimisation was terminated by HREOC. The word 'victimisation' was used by Ms Huang in her correspondence with HREOC and I have proceeded on the basis that I should consider the claim of victimisation. However, I am not persuaded that the factual matters referred to in connection with that word constitute victimisation within the meaning of the SDA, the DDA or the RDA.
Ms Huang has neither identified the detriment she alleges she was subjected to, nor the act referred to in s.94(2)(a) to (g) of the SDA that she took or proposed taking, nor the knowledge the first, second and third respondents had concerning those acts, nor the connection between any of those acts and the detriment alleged. Ms Huang has not identified evidence of those matters either.
I accept from the evidence that Ms Huang first raised her allegations of sexual harassment at her meeting with Ms Nabke-Hatton on 22 March 2002. The first, second and third respondents did not know of her allegations of unlawful discrimination before that date. There is no evidence that Ms Huang ever raised any assertion of unlawful discrimination before that time. As her supervisors had already told her that they would not be supporting her re-enrolment there is no question of unlawful victimisation by them.
The University initially cancelled Ms Huang's enrolment and then changed its mind following the appeal process. Ms Huang's allegations of discrimination and harassment were considered as part of that decision making and appeal process but do not appear to have been a factor bearing on the decisions that were taken.
I reject the allegation of victimisation.
[37]
Counsel for the respondents notes in her submissions the following matters. Ms Huang has attempted to suggest in these proceedings that there is some connection between the incidents of sexual harassment that she alleges in 1999 and the requirement that she submit a literature review and research proposal. This was not an allegation that she made to HREOC.
It is apparent from the evidence that Ms Huang had not made any significant progress towards her PhD in 1999. In that year she had a scholarship[119], the support of her supervisors and was a full time student. The PhD conditions required her to demonstrate progress[120]. She was aware of the necessity to prepare a literature review and research plan[121] but had made little or no progress with that work by the end of 1999. That lack of progress would have been apparent to her supervisors had Ms Huang undergone a review in 1999. No such review was conducted that year possibly because Ms Huang was suffering from the effect of a slip and fall accident. She did however undergo an informal review before her re-enrolment in 2001[122] and a formal review in March 2001[123]. Both reviews established her lack of progress.
Ms Huang's inadequacies as a PhD candidate were evident before the incidents she alleges. Despite encouragement by her supervisors, extensions of time for the submission of work, assistance of Faculty staff, commentary on her draft work and the invitation to re-submit work she was unable to demonstrate to her supervisors that she could realise the potential they thought she had.
That outcome was undoubtedly disappointing for Ms Huang and for her supervisors. The fact is, however, that the respondents are not responsible for Ms Huang's failure. The causes for that failure were personal to her. It is most unfortunate that Ms Huang has demonstrated a preparedness to make baseless accusations against people who had attempted to help her (whether effectively or not) rather than accept her own failure and its causes. Those accusations include allegations of fraud and plagiarism against Dr Markovic. That is not to say that Dr Markovic was not at fault. Professor McLachlan's report found fault, although not fraud or plagiarism. The accusations were properly considered and dealt with by the University, and no further consideration by me is necessary.
The application as against the first three respondents will be dismissed with costs.
[38]
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Driver FM
[39]
Mr Uzzaman was a contemporary student with Ms Huang at the University. She approached him in 2004 and 2005 to seek his assistance with her legal proceedings. He indicated that he did not wish to become involved and declined to co-operate. He was subpoenaed by Ms Huang to give evidence. Ms Huang sought Mr Uzzaman's corroboration of her allegations against Dr Markovic concerning comments alleged to have been made by him in 2001. Mr Uzzaman failed to provide that corroboration. He said that he could not recall details of any conversations between him and Ms Huang or Dr Markovic and he knew nothing of any discussions between Sybille Frank and Professor Winder and Dr Markovic. Neither could he recall any relevant conversation with Ms Azzi.
[40]
Dr Harvey produced a brief affidavit annexing his medical records concerning Ms Huang. He was subpoenaed to give evidence in relation to his records. I confirmed that he was qualified to give opinion evidence concerning his treatment of Ms Huang as a general practitioner.
Dr Harvey said that he had been treating Ms Huang from 14 August 1998 until the present but he had not done so exclusively. Ms Huang had, from time to time, consulted other doctors at the same medical practice in Marrickville. Dr Harvey said that he treated Ms Huang for injuries following a car accident in 1998 and following a fall in 1999 when she injured her hip. She reported pain in her hip and leg and back. On 12 December 2000 Dr Harvey diagnosed a reactive anxiety disorder which worsened over time and became associated with depression.
Dr Harvey reported that on 11 November 2000 he had a long consultation with Ms Huang in which she reported having trouble with her academic research following the accident in 1999. In 2001 she reported suffering insomnia and poor concentration. Dr Harvey diagnosed anxiety and depression and an obsessive compulsive disorder. Ms Huang reported obsessive checking activities. On 25 May 2001 Dr Harvey prescribed anti-depressants. He said that he had prescribed a number of different anti-depressant drugs since but they did not appear to be efficacious. Ms Huang reported not being satisfied with them and was non compliant with the medication.
Dr Harvey also stated that he had diagnosed Ms Huang as suffering from tritrilmania (an obsessive grabbing of the hair at the scalp) which is untreatable.
Dr Harvey had not referred Ms Huang to any other specialists.
I asked Dr Harvey whether he had had any dealings with the University concerning Ms Huang. He recalled giving some certificates which were expressly related to unfitness to work but which also might have extended to unfitness to attend university studies.
Dr Harvey was asked about the cause of Ms Huang's anxiety condition. He thought it may have stemmed from her hip injury. Ms Huang had suffered, or reported pain, over a long period for which there was no physical cause.
Under cross-examination Dr Harvey said that he had no record of any sexual harassment allegation being made to him in 1999 or 2000. He said that his first note of any complaint by Ms Huang about trouble with her studies was on 11 December 2000.
Under re-examination Dr Harvey stated that he did note Ms Huang making a complaint concerning her academic supervisor on 3 April 2001 in relation to the academic demands made of her. He further noted that Ms Huang made an allegation of sexual harassment to him on 25 November 2002. He stated that according to his notes Ms Huang began to develop an obsessive compulsive disorder about 30 July 2002.
[41]
Ms Yue is Ms Huang's mother. She gave evidence with the assistance of a Cantonese interpreter. I satisfied myself that her affidavit, which had been prepared in English without a translator's certificate, had been read to her and that she understood and adopted it.
Ms Yue relevantly deposes that her youngest daughter (Ms Huang) is a good and caring person who enjoyed a happy childhood and youth, but whose state of mind changed after she commenced her PhD studies. Since 2001 Ms Yue observed Ms Huang become vexed, restless, forgetful, depressed and lose interest in everyday activities. Ms Yue refers to Ms Huang suffering physical pain and itchiness. Ms Huang did not confide in her about the details of her problems. Ms Yue deposes as to her distress concerning Ms Huang's condition and her efforts to support and assist her.
Under cross-examination Ms Yue confirmed the essential details of her affidavit. In that she was prompted by Ms Huang from the bar table in the Cantonese language and by facial and head gestures. I cautioned Ms Huang on several occasions to desist from prompting her mother. Ms Yue confirmed that Ms Huang had suffered an accident although she could not recall when that was. Ms Yue linked Ms Huang's change in demeanour to her PhD studies rather than the accident. She could not recall details of Ms Huang's studies and said that Ms Huang did not discuss such details with her.
Ms Yue insisted that Ms Huang never became ill before undertaking her PhD studies. She could not recall Ms Huang taking time off before undertaking her PhD studies.
[42]
Dr Sachdev prepared a short affidavit filed on 2 December 2005 annexing a report on Ms Huang dated 14 June 2005. Dr Sachdev says that she has been Ms Huang's treating psychiatrist since 18 February 2003 and had prepared her report at Ms Huang's request. I was satisfied that Dr Sachdev was qualified to give opinion evidence about Ms Huang's mental health. Dr Sachdev, in her report, refers to the history recited to her by Ms Huang, including her allegations of sexual harassment, sex discrimination, disability and racial discrimination and plagiarism. Dr Sachdev states that Ms Huang appeared to have an anxious, sensitive, perfectionist personality style. Dr Sachdev details medication prescribed for Ms Huang and reports on the fluctuation of her mental state over the two years leading up to the preparation of the report.
Dr Sachdev concludes that harassment (said to have been suffered by Ms Huang at the hands of some of the University staff) has resulted in a marked increase in anxiety and depressive symptoms. Furthermore, Ms Huang is in a vulnerable position, being a migrant of Asian background who is trying to establish herself in higher education. Dr Sachdev concludes that obtaining her PhD was very important to Ms Huang and her exclusion had a devastating effect on her. She carries feelings of shame and guilt. Dr Sachdev comments that it is unfortunate that Ms Huang did not receive support from the University earlier in her studies. She concludes that Ms Huang is now preoccupied with "seeking justice" to the extent of it having an adverse impact upon her mental health. Dr Sachdev's attempts to treat her have been only partially fruitful since the stress of the current legal proceedings was continuing. Dr Sachdev reports a high degree of obsessionality and high moral standards which has made it difficult for Ms Huang to move on with her life. Dr Sachdev believes that unless there is a satisfactory resolution of the conflict in the present proceedings, Ms Huang's psychiatric symptoms and mental distress are unlikely to fully resolve.
I permitted Ms Huang to lead brief additional oral evidence from Dr Sachdev. Ms Huang showed Dr Sachdev exhibit A3 (Prince of Wales Hospital mental health assessment). Dr Sachdev said that she saw no symptoms of delusions or psychosis. Ms Huang also showed Dr Sachdev exhibit A4, being a medical certificate dated 29 April 2003. Dr Sachdev said that the certificate disclosed no prognosis. It was just a certificate for a period of three months.
Under cross-examination, Dr Sachdev denied partiality in the preparation of her report. She said that she was expressing her opinions, not endeavouring to assist Ms Huang. She was not intending to suggest in her report that Ms Huang's allegations against the University and the individual respondents were true.
Ms Oakley asked Dr Sachdev about Ms Huang's prior history of mental disturbance linked to physical conditions. Dr Sachdev said that Ms Huang had told her something of this but she had not been previously shown Dr Harvey's clinical notes. On checking those notes Dr Sachdev accepted that there appeared to have been a history of some mental problems with a physical cause. That did not detract from her assessment of mental problems related to the cancellation of Ms Huang's PhD enrolment. Ms Oakley asked whether Ms Huang suffered from chronic depression. Dr Sachdev was not sure. She opined that Ms Huang suffered from clinical depression and had a vulnerable personality. She had responded well to anti-depressants but had discontinued taking them. Symptoms came and went, waxing and waning over time. This could support an assessment of chronic depression.
Dr Sachdev resisted a suggestion that her conclusions were mere speculation.
[43]
Dr Dodwell is the chief medical officer for Health Quest (a statutory health corporation in New South Wales). He responded to a subpoena issued at the instigation of Ms Huang to Health Quest for a Dr Terry Kohler to appear to give evidence. Documents had also been subpoenaed from Health Quest. Dr Dodwell appeared in lieu of Dr Kohler on the basis that he was Dr Kohler's supervisor and was responsible for a report prepared by Dr Kohler on 5 December 2005. That report was tendered, together with a certificate of unfitness issued by Health Quest in relation to Ms Huang on 22 December 2005[124]. The certificate states that Ms Huang suffers from a health condition that will, in all likelihood, prove permanent and that she is unable to perform the inherent requirements of her job with the New South Wales Department of Education and Training.
The report by Dr Kohler was prepared following a referral from Ms Huang's employer for an assessment of her fitness. Dr Kohler refers to the history recited by Ms Huang and reports on her then current symptoms. He refers to prescribed medication and provides the following summary and conclusions:
[44]
Ms Huang was assessed to be suffering from anxiety and depression. There are also signs of severe obsessional and compulsive traits. It is most likely that she suffers from an obsessive compulsive disorder. Her symptoms also appear to be severely debilitating. Although it appears that Ms Huang has expectations that her symptoms will resolve after the court case is finalised and she has a period of respite, I am not convinced that this is the case. Although her current obsessional behaviour is channelled and focused on the court case it is my opinion that her obsessional behaviour exists independent of her current stressful circumstances. It is also apparent that Ms Huang has little insight into the psychological components of her behaviour. It is noted that she is not compliant with treatment and I do not expect that her condition will improve in any significant way in the foreseeable future.
[45]
I received Dr Kohler's report over the objections of the respondents.
In his evidence, Dr Dodwell said that Ms Huang had had an extensive period of time off work in 2005 apparently due to illness. He qualified Dr Kohler's report by saying that he thought it possible that Ms Huang's condition would resolve following the legal proceedings, to the extent that her condition was an anxiety and depression disorder. He doubted that her condition would resolve to the extent that it was based upon an underlying obsessive/compulsive personality trait. Dr Dodwell stressed that, in his opinion, Ms Huang had an obsessive/compulsive personality trait rather than an obsessive/compulsive disorder of the mind.
[46]
Hong Hua Huang is the sister of Ms Huang. In her affidavit filed in court on 13 February 2006, Ms Huang deposes as to Ms Huang's personality and changes she observed over time. She deposes as to Ms Huang's current state of mind and the care that she and her mother are providing.
Under cross-examination Ms Huang said that she only saw Ms Huang once for about two weeks in March 1999 between the time Ms Huang left China in around 1990 and when Ms Huang came to Australia in mid 2005. She did not know what medical treatment Ms Huang was receiving although she did know she went to doctors frequently. She did not know any details of the dispute leading to these legal proceedings.
In re-examination Ms Huang explained in detail the deterioration in Ms Huang's personality she observed between 1990 and 2005. She spoke of Ms Huang's loss of the joy of living and a reluctance to participate in entertainment. She spoke of Ms Huang being irritable and having "itchy skin" which I take to be a reference to scratching. She referred to Ms Huang having anxiety and stomach and sleep problems. She referred to Ms Huang not eating and even not drinking properly. She referred to Ms Huang being sad and having no hope and being absent minded, repeating activities frequently.
[47]
Ms Azzi was subpoenaed by Ms Huang to give evidence. She did not prepare an affidavit and was a reluctant witness. Ms Azzi stated that she was a student at the University at the same time as Ms Huang and shared a desk next to hers in 2001 and 2002. Ms Azzi said that she undertook a master's degree at the University in 2000 and 2001 and started a PhD in October 2001. Ms Azzi said that she travelled overseas between mid November 2001 and January 2002.
Ms Huang asked Ms Azzi about the allocation of a computer to her in November 2001. Ms Azzi recalled that she was allocated a computer at around that time. She could not recall whether it was new and thought that it was the same as other computers allocated to other students. She denied a suggestion from Ms Huang that Mr Uzzaman had said to her that Dr Markovic had given her a new computer because he liked her. Ms Azzi also denied that she was afraid of Dr Markovic. She admitted that she may have knelt in his office on one or more occasions but said that she was merely looking for documents on the floor while speaking to Dr Markovic. Ms Azzi did not know whether the software on her computer was any different to the software on Ms Huang's computer (or indeed any other student's computer).
[48]
Ms Huang's affidavit material is too voluminous to summarise. The matters deposed to by Ms Huang extend beyond the allegations she made to HREOC and include substantial material relating to her various medical conditions and her asserted economic and non economic loss.
Under cross-examination, Ms Huang:
confirmed that she enrolled in a masters degree at the University of New South Wales in 1995 and stated that she was also working casually at that time. She had earlier undertaken some English language courses;
confirmed that she had experienced health problems in 1997 and that she was concerned at that time with the health of her mother. She experienced worry and stress;
confirmed that she withdrew from her masters course for a time due to emotional problems;
confirmed that Dr Markovic was the supervisor of her masters project and that she published a joint article with him;
confirmed that she applied for enrolment for a PhD in 1997 and was supported by Dr Markovic and Professor Winder. She was initially rejected but Dr Markovic appealed successfully;
confirmed that she was happy for Dr Markovic and Professor Winder to be the supervisors for her PhD thesis;
confirmed that she asked for a deferral in 1999;
confirmed that she applied for a re-entry scholarship which was granted in 1999;
confirmed that her scholarship application was supported by Dr Markovic and Professor Winder and also by Dr Jean Cross;
confirmed that she expressed uncertainty about the course requirements for the PhD thesis;
confirmed that in 1999 Dr Markovic had told her that she would need to prepare a literature review and she had not prepared a review in 1999 in relation to her thesis;
stated that she had no financial problems in 1999 but did have some personal problems late in 1999. She complained about problems with her "brain not working";
admitted that she raised her concerns with Dr Markovic and requested more time to complete her PhD because of her thought process problems;
disputed that she did no experiments in 1999 but agreed that she did no experiments in relation to soil contamination;
admitted that she considered withdrawing from the PhD programme in 2000 but then sought leave;
confirmed that she was happy with Dr Markovic's support in 1999 and 2000 and said that he was a very good supervisor;
complained of a single incident late in 1999 when Ms Huang believes that Professor Winder touched her upper thigh or hip with his hand when they passed in a corridor of no more than two metres width;
confirmed that she did not see what had touched her but believed that it was Professor Winder's hand brushing her upper thigh in a vertical motion;
stated that she believed that the contact was sexual because Professor Winder is a man who is highly educated and who would be reluctant to ask for sexual favours directly;
confirmed that she had no discussions at all with Professor Winder in 1999 and only occasional conversations with him in 1998 or 2000;
confirmed that she subsequently asked Professor Winder for assistance in relation to a dispute with Centrelink over her liability to attend for job seeking and in relation to her request for an upgraded computer;
confirmed that late in 1999 she fell in a sauna and cracked a bone in her hip at the South Sydney Juniors Leagues Club;
experienced pain and psychological problems as a result of that injury for which she sought medical attention in 2000;
stated that she claimed compensation from the Leagues Club for her injuries which was settled without the need for legal proceedings;
confirmed that she complained of mental problems caused by her physical injury during 2000 but disputed that she was prescribed medication for her mental difficulties prior to 2001;
complained of an incident involving Dr Markovic in 1999 when Dr Markovic was giving a talk concerning laboratory procedure to a group of students at which Ms Huang was present. Ms Huang alleges that Dr Markovic had been speaking about laboratory safety and dangers posed by glass equipment and had leaned towards her with his arms outstretched in a gesture that Ms Huang took to be a sexual advance;
admitted that Dr Markovic had not touched her or made any sexual comment;
claimed (for the first time) that Dr Markovic had said, when he made this gesture, words to the effect, "I would kill you" and that he smiled and laughed in a "lustful" way;
denied that she might have misinterpreted Dr Markovic's gesture or words;
denied that she had invented the claim that Dr Markovic referred to killing her;
explained that she had not contacted any of the students present relating to her concern of a sexual advance because she did not know them;
disagreed that the only work completed by her as part of her PhD studies at the University in 1999 was a single poster;
agreed that she had approached Dr Markovic and Professor Winder for help in 2000 in order to obtain access to the University building during the period that she had withdrawn from her studies;
accepted that she had had personal problems in 2000 and pain resulting from her accident in 1999 and had complained to her doctor that her "brain was blocked";
admitted that she was concerned about problems with her mother's visa at this time and that she had financial problems as well;
admitted that she had told Dr Markovic in April 2000 that her "brain was heavy" and that her mental problems were affecting her studies;
admitted that she asked Dr Markovic to support her compensation claim against the South Sydney Juniors Leagues club as a "favour";
admitted that in June 2000 she had asked Professor Winder to support a further scholarship application by her as a "favour";
admitted that she withdrew from her studies in both semesters in 2000 and had told Dr Markovic that she would return in 2001;
denied that she had undertaken a progress review in October 2000 with Dr Andrew McIntosh;
admitted that she had initially re-enrolled full time in 2001 but had changed her enrolment to part time on 29 January 2001;
confirmed that she had written to Professor Winder to tell him this and asked for his assistance in getting a part time job. She had made the same request to Dr Markovic;
admitted that Dr Markovic had responded that her re-enrolment required full time study and commitment;
admitted that Dr Markovic had told her that space and facilities and university employment were normally only made available to full time students, but qualified this by saying she had not believed him;
denied that she understood that Dr Markovic was concerned about her progress and stated that he was "finding excuses";
admitted that Dr Markovic had asked her to produce a literature review and research plan and admitted that Dr Markovic had told her at the beginning of 2001 that she should have already completed a literature review and that he had told her that it was "crucial" to have experiments underway in 2001;
denied that she was not surprised by Dr Markovic's concerns;
admitted that Professor Winder wrote to her on 5 February 2001 stating that better performance and timeliness of work would be required and warned her about unsatisfactory progress;
admitted that after she complained about her computer equipment that replacement components were provided;
admitted that by 12 March 2001 she had not conducted any laboratory experiments;
admitted that Dr Markovic said that he would arrange a review with Dr McIntosh on 26 March 2001 and that she had prepared a report in which she had admitted she had not undertaken any research into soil contamination up to that point;
admitted that Dr Markovic had asked her to attend for laboratory training and that she had asked for a deferral until July 2001;
insisted that her reluctance to attend laboratory training was due to a concern about plagiarism of her work;
insisted that her ideas and method had been copied although she had not produced written work which could have been copied;
confirmed that she was threatened with cancellation of her enrolment and had been asked to produce a one page monthly summary of her work;
admitted she knew by June 2001 that she was unable to meet the University's requirements;
admitted that she had complained of illness in July 2001 and had apologised for her slow progress and had indicated she would be able to start laboratory training at the end of July;
admitted telling the University that she had been distracted by other legal proceedings in July 2001 but insisted that she was also concerned about plagiarism;
admitted that Dr Markovic had suggested counselling and medical assistance for her in July 2001 but denied that he was trying to help her. She insisted that Dr Markovic was trying to steal her ideas;
stated that Dr Markovic was discriminating against her by showing a lack of support, providing a lack of training and providing a lack of equipment;
admitted that Dr Markovic wrote to her in July 2001 requiring an increased academic commitment from her but denied that she had showed a lack of commitment;
admitted that she had told Dr Markovic that she did not think that her literature review was important and qualified this by saying that she had been unable to obtain laboratory access;
admitted that as at 10 July 2001 she did not know what a literature review was;
stated that at the time she thought a literature review was a draft thesis;
admitted that Dr Markovic had told her on 10 July 2001 that if she did not follow standard academic methods she would probably be unable to complete her thesis, but qualified this by saying that the issue was not properly explained;
admitted that Dr Markovic had set out for her the six basic steps for the completion of her PhD but stated that this had not been previously explained;
denied that she did not know what the basic requirements were and claimed that she had exceeded them;
asserted that she did know what she needed to do to complete her PhD but admitted that she had only conducted one experiment, while asserting that the experiment had several elements to it, and admitted that her literature review was due in June 2001;
admitted that the University's higher degree committee decided to terminate her PhD candidature in July 2002 but added that she appealed against that decision;
asserted that the report of the Appeal Committee was critical of Professor Winder and Dr Markovic (although the report in fact states that they went to "considerable lengths" to care for her);
denied that on 10 February 2006 she was served with a notice to produce documents relating to claims of compensation for injuries as a result of a motor vehicle accident or the slip and fall accident at the South Sydney Juniors Rugby League Club, was not sure whether the signature appearing in a courier record of delivery of the notice to produce was hers, admitted that she had instructed the firm of Dennis & Co to act for her in relation to the slip and fall claim, asserted that she had no documents relating to that claim and that she had never made a claim for a motor vehicle accident, admitted that she had received monetary compensation for the slip and fall accident but asserted that it was purely for physical injuries and denied telling the University appeal committee that she had received compensation for psychological as well as physical injuries;
resisted suggestions that she had alleged that her psychological condition was caused by the slip and fall accident;
asserted that she had probably thrown away any documents she may have previously had from Dennis & Co regarding her slip and fall claim;
admitted that she had resisted efforts by the University to gain access to her medical records relating to the slip and fall accident;
denied that she had failed to follow the six step procedure set out in the e-mail forming exhibit E28 to the affidavit of Dr Markovic and asserted that there was a misunderstanding in relation to her following that procedure;
confirmed that she had published only one article relating to her PhD research;
admitted that the article concerned part of her work in relation to her masters project;
admitted that she had not submitted any further articles to publications but asserted that she had submitted some to her supervisors;
confirmed that by July 2001 she had not completed experiments for the purposes of her PhD thesis but asserted that she had commenced experiments and asserted that she had obtained some data;
admitted that in September 2001 she asked Dr Markovic for training in the use of laboratory equipment and confirmed that Dr Markovic had asked her to work on extraction problems rather than concentration problems in relation to contaminated soil;
confirmed that Dr Markovic asked another student to work on the soil concentration issue and asserted that this was part of a scheme to steal her ideas;
asserted that she had developed a new method of using solvents in the extraction of contaminated soil as part of biological testing, could not recall what the name of the solvent was but gave a chemical formula, confirmed that the chemical formula was acetic acid (commonly known as vinegar) and confirmed that this was the most common solvent used in soil testing;
asserted that she was the first in her school at the University to use acetic acid in the toxicity testing of contaminated soils;
agreed that she had asserted plagiarism by Dr Markovic and others of her work but admitted that she had been advised that her supervisor shared any intellectual property rights in relation to her work;
admitted that she did not claim to have developed a new soil test and admitted that she had not conducted enquiries in order to determine whether she was in fact the first at the school to use acetic acid as a solvent in the testing of contaminated soils as part of a biological testing programme;
confirmed that she asserted Dr Markovic had used her research in a paper he presented in New Zealand and that she had made a formal complaint against him but admitted that her experimental results were not included in Dr Markovic's paper;
admitted that several groups of experiments were conducted and that the experimental results which appeared in the paper were derived from experiments done by people other than her but asserted that her "ideas" had been "stolen";
agreed that what had upset her was that responsibility for the conduct of the experimental work had been taken from her and given to others;
agreed that on 28 September 2001 she had submitted the document she had called her literature review[125];
agreed that Dr Markovic had written handwritten comments on her document and that Professor Winder had written to her providing criticisms of it on 8 October 2001[126];
agreed that she was given the opportunity to undertake further work on her literature review until the end of November 2001 and that she had received comments from both her supervisors to assist her, and that she had been told the scope of her literature review was too narrow - but that she disputed this criticism;
with reference to annexure CW14 to the affidavit of Professor Winder, agreed that she had asked for approval to attend more courses and that Professor Winder had responded that he thought that this would be a distraction from the completion of her literature review (which she regarded as an excuse);
admitted that an accident had occurred in the laboratory in October 2001 when a piece of glass equipment containing a vacuum had imploded but rejected the accuracy of the investigation report on this accident (which had blamed her for not following appropriate procedure)[127] and asserted that the accident had not been her fault but was a problem of faulty equipment;
agreed that in November 2001 she raised concerns with the University post graduate board about an arrangement made for her to work as part of a team and expressed the opinion that it was laughable to think that other students not undertaking a PhD programme could assist her;
denied having seen the correspondence from Professor Winder to Jonathan Hulme of the University post graduate board until she had obtained access to subpoenaed material;
confirmed that she had received the letter forming annexure CW17 to the affidavit of Professor Winder and asserted that this was an attempt by Professor Winder to take over the role as her supervisor (although there was nothing on the face of the letter or the two attached forms which were shown to Ms Huang which said that) and asserted that her understanding of the intention of the letter and forms was derived from a conversation she had had with Dr Markovic, who she had gone to because she had not understood the letter;
confirmed that two forms were attached to the letter from Professor Winder forming annexure CW17 to his affidavit, at least one of which was in the form tendered as exhibit R5;
confirmed that she wrote to Professor Winder on 22 November 2001[128] which she asserted "indicated" that she wanted to change supervisors, although on its face it said nothing about that;
first disagreed and then accepted that by late November 2001 she knew that both Professor Winder and Dr Markovic were both very concerned about her progress, but disputed the genuineness of that concern;
accepted that in his letter of 8 October 2001[129] Professor Winder warned her that if her literature review had been submitted as part of her annual review, he would not recommend her continued enrolment in 2002 to the faculty higher degree committee, but added that she did not believe this warning;
asserted that she was being discriminated against and threatened rather than being warned to improve her performance;
agreed that the higher degree committee looked at her second attempt at her literature review in 2002 but disputed that the committee exercised any independent judgement in assessing the quality of that work;
asserted that both Mr Uzzaman and Mr Abayawickrama had witnessed inappropriate comments by Dr Markovic to her in September or August 2001, although both had denied it;
asserted that there was a "hidden meaning" in Mr Abayawickrama's denial which "indicated" that he confirmed that the inappropriate comment had been made;
confirmed that Dr Markovic had asked her to discuss her work with a masters student (a Mr Ali) but stated that this was a "waste of her time" because Mr Ali was a mere masters student;
confirmed that on 13 September 2001 Dr Markovic had suggested to her that she change to a masters degree but stated that this was impossible for her to consider and regarded it as a threat;
denied, notwithstanding the content of exhibit E42 to the affidavit of Dr Markovic, that he had assisted her;
agreed that the appeal committee in its report (exhibit R4) agreed with Dr Markovic and Professor Winder about the inadequacy of her work but qualified this by reference to the additional comments by the appeal committee in the report;
admitted that in September 2001 she had told Professor Winder of problems with court litigation over the slip and fall accident interfering with her thesis work, although the case had by then been concluded;
agreed that she resubmitted her literature review on 30 November 2001;
agreed that Dr Markovic gave her comments on her revised literature review on 31 December 2001[130] although she did not see that document at the time - she was given a copy by Professor Winder[131];
agreed that on 3 January 2002 Professor Winder also expressed his views (and those of Dr Markovic) on the revised review[132];
agreed that Dr Markovic wanted a detailed work plan if she was to continue with her thesis but added that she did not understand the standard to which she was expected to work;
agreed that she took advice from Ms Gardner about developing a work plan and Ms Gardner wrote giving advice[133];
denied that her e-mail message, exhibited as exhibit E56 to the affidavit of Dr Markovic, was a threat to cause "trouble" if he would not permit her to continue with her thesis and agreed that at that time she had not made any claim of sexual harassment although she asserted that it had been "indicated" earlier by reference to her letter dated 10 March 2001 (which raised issues concerning computer problems);
denied that the exhibit at E56 suggested that she was prepared to make up allegations if Dr Markovic would not allow her to continue;
accepted that on 29 January 2002 Dr Markovic offered assistance and invited her to talk to him about her research difficulties[134] but said that he was "lying";
agreed that in February 2002 she submitted her research plan[135] and accepted that this included a timetable for the completion of her literature review by 25 July 2002;
agreed that she understood from Professor Winder's letter to her dated 25 February 2002[136] that he would recommend a change to a masters degree;
agreed that Ms Gardner had assisted her with her research plan and agreed that Dr Markovic had told her her plan was well below the standard that he expected, but added that she regarded this as an "excuse" to act against her;
agreed that she received the e-mail forming exhibit E61 to the affidavit of Dr Markovic and that she received his comments set out at annexure CW27 to the affidavit of Professor Winder;
denied that Professor Winder made any independent assessment of her lack of progress and asserted that expressions of a lack of progress by both Dr Markovic and Professor Winder were just an excuse to act against her;
agreed that in March 2002 she was told by Professor Winder and Dr Markovic that they would not support her re-enrolment in the PhD programme and asserted that this was discriminatory;
agreed that she received the letter dated 4 March 2002 to her from Professor Winder forming annexure CW28 to his affidavit and accepted that the higher degree committee cancelled her enrolment later in 2002;
accepted that several people suggested she seek counselling and agreed that she attended counselling on 15 February 2002, and accepted that she received the letter from Professor Winder forming annexure CW14 to his affidavit in which he strongly suggested counselling;
agreed that she saw a counsellor on 22 March 2002 at which time she made her first allegation of sexual harassment although she asserted that this had been "indicated" previously in a letter dated 13 September 2001 (although the letter made no mention of sexual harassment)[137];
first denied and then accepted that she had been referred to the University equity and diversity unit in relation to her harassment complaint and was unsure whether a meeting was arranged with the unit but accepted that she referred to sexual harassment in her letter forming annexure HH-P1 to her affidavit;
agreed that she saw Sybille Frank on 25 March 2002 at which time she gave her her "report" containing her allegations;
disputed that although she had a long conversation with Ms Frank on 25 March 2002 it mostly was concerned about her desire to re-enrol;
asserted (apparently for the first time) that in September 2001 Professor Winder made a sexual advance to her and asserted that his letter to her dated 5 February 2001[138] "indicated" that her progress would be conditional upon the provision of sexual favours (although the letter contained no such suggestion);
denied that she had just tried to embarrass Professor Winder to make him change his mind about her re-enrolment;
denied that Ms Frank gave her information about anti-discrimination legislation but accepted that she did not speak to Ms Jean Cross about her harassment allegations - although she asserted that Ms Cross somehow "knew" that she had been harassed;
agreed that Ms Frank had offered to speak to Mr Hulme about her academic complaints and that Ms Frank had read the papers she had given her at the time they had a second meeting on 2 April 2002, but could not recall whether at that meeting Ms Frank had asked her what she wanted;
denied that Ms Frank had suggested she redraft her complaint to separate the facts from her feelings and asserted that Ms Frank had suggested deleting her harassment and discrimination complaints;
agreed that Ms Frank had asked her how she knew Professor Winder had wanted sex and that she had told her that this was because Professor Winder had touched her on the hip as they passed in the passageway;
agreed that there was a further meeting with her, Ms Frank and Mr Hulme on 10 April 2002 but denied that Mr Hulme had said that he would discuss her re-enrolment with Professor McLachlan;
could not recall a further meeting with Ms Frank on 3 May 2002 and could not recall meeting Ms Frank to discuss an agenda for a further meeting;
claimed that the first paragraph on page 2 of the letter at exhibit E17 to the affidavit of Dr Markovic was an "indication" of Professor Winder's sexual interest in her, even though the letter at the point merely refers to the possibility that she might be eligible for a merit based scholarship;
stated that she did not apply for the scholarship referred to by Professor Winder and that, after the incident in which Ms Huang claims Professor Winder touched her hip in the corridor in 1999, she treated all statements by Professor Winder concerning the availability of benefits as an "indication" of a sexual invitation;
confirmed that she had had two meetings with Mr Hulme and Ms Frank in April and possibly May 2002 and that she had said that she wished to re-enrol in 2002 with a different supervisor, but denied that there was any real discussion about the available options;
confirmed that she had offered to drop her complaint of harassment and discrimination if she was allowed to re-enrol but denied that she had said that if she was not allowed to re-enrol she would use the University appeal mechanism to pursue her complaints of harassment and discrimination;
stated that the advice she had received from Ms Frank was that her academic complaints would need to be separated from her complaints of discrimination and harassment;
confirmed that on 21 May and 4 June Ms Frank contacted her to remind her of the need to lodge an academic complaint with the University's higher degree committee and to enquire why no complaint had been lodged, and added that while she could not recall the exact words, Ms Frank had referred to a pending meeting of the higher degree committee on 11 June 2002 - Ms Huang added that she had at that stage told Ms Frank that she had been unable to lodge her complaint because of illness and computer problems;
confirmed that, at Ms Frank's invitation, she had sent a complaint to the registrar of the University's equity and diversity division on 7 June 2002 and, at about the same time, she had written a letter of complaint to HREOC;
agreed that the higher degree committee had cancelled her enrolment after its meeting on 11 June 2002 (the cancellation in fact occurred the following month) on the basis that Ms Huang was taking too long with her thesis, although she did not agree that there was a finding of insufficient progress;
clarified her employment history and stated that she had not worked full time after 1997 but that she had undertaken casual work in 1998 and had received scholarship income in 1999, that she had received Newstart allowance in 2001 and that she had had no employment in 2000 - Ms Huang did not disagree with the proposition that she had had no continuous full time employment since 1990 but was unsure whether her highest year of income was 1999.
In re-examination Ms Huang further clarified her employment history with the New South Wales Department of Education. She stated that she undertook a Diploma of Education prior to commencing employment with the Department of Education and undertook some employment with the Department in 1996. She then decided to do a Masters project and did not return to employment with the Department. She initially worked as a casual education support officer. In 1998 she concentrated on the production of a paper to support a scholarship application which she was successful in obtaining in 1999. She also worked part time at the University in 1999. In 2000 she took sick leave from her PhD studies. She asserted that from 2001 she was unable to return to work with the Department of Education because of stress and mental suffering.
Ms Huang asserted that she had sought to change her subject mix in 2000 because she was concerned about her English ability but took sick leave as an alternative. She also clarified that the paper she prepared in 1998 was derived from her Masters project but that she had added information to it which she received from the New South Wales Environment Protection Agency. Ms Huang asserted that she had asked Professor Jean Cross to be her supervisor of her Masters thesis in 1997 but that Professor Cross had suggested Dr Markovic. Dr Markovic had suggested Professor Winder as the co-supervisor. On the basis of Ms Huang's enquiries, only Dr Markovic and Professor Winder were qualified to supervise her.
Ms Huang stressed that although Professor Winder had threatened in writing to recommend the cancellation of Ms Huang's PhD enrolment late in 2001, he had not then acted upon his threat. She asserted that Professor Winder was asked by the University to act upon his threat the following year. She agreed that the higher degree committee was the appropriate body to consider the cancellation of her enrolment but asserted that she did not understand the purpose of her meetings with Mr Hulme and Ms Frank. She asserted that Ms Frank told her that there would be a "risk" to her re-enrolment if she pursued her complaint of harassment. She agreed that her main concern was her desire to complete her PhD because she thought that it was unfair to prevent her re-enrolment.
Ms Huang stated that her impression was that she was treated differently by Professor Winder in 2001 when she returned from sick leave than she was in 1999, prior to her taking sick leave. Ms Huang asserted that as a result of her research efforts in 1999 the University received funding from SOCOG to support her work studying contaminated soils. She asserted that before she took sick leave Professor Winder and Dr Markovic were happy with her work. However, she asserted that in September 2001 Dr Markovic had threatened her in relation to her research work and suggested to her that she give up her PhD. Ms Huang stated that she sought guidance from the University's student centre, which referred her to the Vice Chancellor, Professor McLachlan. Ms Huang stated that she told Professor McLachlan about her complaints of harassment and refusal of laboratory assistance and inadequate training and of her being referred for assistance to a Masters student. She also told Professor McLachlan about her plagiarism complaint. Professor McLachlan had said to her that there was no issue of plagiarism because the work was undertaken jointly by her with her supervisors. Neither was there any issue of fraud because the data used was accurate. Professor McLachlan had told Ms Huang that there might be an issue of professional misconduct if Ms Huang's contribution to the work was not properly attributed.
Ms Huang asserted that Professor McLachlan also told her that there was a need to periodically update literature reviews in order to ensure that all relevant material was dealt with. Ms Huang asserted that Dr Markovic did not properly review her literature review and she did not realise that he was looking for a final literature review. She asserted that Dr Markovic and Professor Winder never explained what "standard" she was expected to work to and never properly explained the six steps to the completion of her thesis that they expected her to meet. She asserted that she had an eight year plan to complete her thesis part time and that her progress should not have been interrupted. Ms Huang said that when she returned from sick leave she had wanted a three year scholarship but that Dr Markovic had imposed unreasonable requirements and conditions. She asserted that Dr Markovic restricted and obstructed her access to laboratory equipment. She asserted that Dr Markovic planned to terminate her PhD enrolment because she had complained about him. She asserted that Dr Markovic never completed her laboratory training (although she had asked him to put it off due to court commitments in relation to her slip and fall accident claim). Ms Huang asserted that when training eventually started in August 2001 it only dealt with simple procedures and that she thereafter taught herself.
Ms Huang noted that Professor Winder had omitted from his affidavit that part of her first draft literature review (her draft thesis) which dealt with her laboratory work and the process of research she was undertaking. She asserted that in that part of her draft thesis she had referred to her work with the solvent acetic acid. Ms Huang asserted that Dr Markovic wanted Mr Abayawickrama to take over the soil testing experiments. Ms Huang stated that at the time she had prepared her second draft literature review she also had available further material from her laboratory work, although she had not submitted it at that time. She asserted that, when it came to consider the second draft literature review, the higher degree committee considered it a better effort than her first attempt. Ms Huang also noted that in 1999 she had finalised her literature review for publication. She reiterated the work she had undertaken in 1999 and the positive feedback she says she obtained on it.
Ms Huang stated that she was herself unhappy with the data she had obtained in preparation for publication by 2000. She again stressed the difference she perceived in the treatment of her by Dr Markovic in 1999 compared to 2001. She again reiterated that she regarded the treatment of her in early 2002 as discriminatory and that the criticism of her work was an excuse to act against her.
Ms Huang said that she was unable to complete a publication in the first year of her PhD as a result of her injury on 3 August 1999 in the slip and fall accident. She said that she was unable to sit for a long time because of that injury. Ms Huang asserted, however, that the primary reason for her taking sick leave in 2000 was the sexual harassment she claims she was subjected to, rather than the slip and fall accident and other problems she admits relating to worries concerning her mother's visa and pressure she states was being exerted on her by Centrelink to work full time. Ms Huang stated that she hoped to obtain employment at the New South Wales Environment Protection Agency and in fact applied for a job there on 23 February 2000 (see annexure HH-V53 to her affidavit number 3). She stated that she was advised that she would need to complete her PhD in order to have a serious claim upon that position.
Ms Huang reviewed the medical evidence relating to her physical and psychological problems. She asserted that the psychological problems she encountered during 2001 were not pre-existing and were caused by what she described as bullying and plagiarism, the giving of her work to others and threats to her PhD enrolment. She admits to being obsessed by what she regards as unlawful treatment.
Ms Huang noted that the University appeal committee upheld her appeal against the cancellation of her PhD enrolment (see exhibit R4) and that, as a result, Professor Dooley of the academic board wrote a letter to her concerning her health problems. Ms Huang stated that the outcome was that she was permitted to recommence her PhD but that her re-enrolment was found to be impracticable because no supervisor could be found.
In relation to the accusation of plagiarism, Ms Huang stated that she did not accept the advice she was given by Professor McLachlan that the only issue was one of professional misconduct. She said that she had complained to the Dean's office and that the issue had been investigated by Professor McLachlan and two other academics. Ms Huang identified annexure HH-V13 to her affidavits as a letter from Professor McLachlan dealing with that investigation. She stated that Dr Markovic was found to have breached the academic code of conduct and that a reprimand and required apology were recommended.
Ms Huang said that she had only limited face to face contact with Professor Winder and that there was very little opportunity for him to pursue what Ms Huang saw as his sexual interest in her. She acknowledged that she had asked Professor Winder to support her application for an Australia Post scholarship in relation to her PhD thesis. Ms Huang asserted that she had made no complaint to Professor Winder or others for a long time after the alleged incident of sexual harassment because of her cultural reluctance to deal with sexual issues. She referred again to an incident she alleged occurred in September 2001 when she had an appointment with Professor Winder and he had asked his secretary to leave. She acknowledged that she and Professor Winder only talked about her PhD work and that it was "impossible" for him to make a sexual advance. Ms Huang stated that she was too scared to complain to Dr Markovic about what she saw as discrimination and harassment because she did not want to affect their relationship. Ms Huang again referred to correspondence between her and Dr Markovic which, although silent on its face on sexual issues, she asserts "indicates" sexual harassment.
[49]
Dr Markovic was Ms Huang's supervisor at the University. He deposes as to his background at the University. He denies all allegations of unlawful discrimination and/or sexual harassment made against him by Ms Huang.
Dr Markovic deposes as to his knowledge of Ms Huang's student history between 1995 and 1997. He then deposes as to his knowledge of Ms Huang's commencement in the PhD programme in 1998.
Dr Markovic deposes as to his dealings with Ms Huang in relation to the PhD during 1999. He deposes as to ongoing and detailed e-mail correspondence with Ms Huang from mid 1999 onwards. He deposes as to communications from that time relating to Ms Huang's mental health, financial and legal problems.
Dr Markovic deposes as to Ms Huang's initial enrolment in the PhD programme in 2000 and her attendance at a conference at the Australian National University in February of that year. He deposes as to e-mail correspondence with Ms Huang, including in relation to her enrolment status for 2000. He deposes as to a progress review relating to Ms Huang's PhD work in October 2000.
Dr Markovic deposes as to his knowledge of the events of 2001 relating to Ms Huang. He deposes as to a change of policy by the Federal government in relation to postgraduate research degrees which required them to be completed within a specified time. He deposes as to a progress report in relation to Ms Huang undertaken on 26 March 2001 involving Dr McIntosh, Professor Winder, Ms Huang and himself. He deposes as to correspondence with Ms Huang concerning the completion of a literature review he required by the end of June 2001. He deposes as to an incident in the laboratory in which a vacuum desiccator imploded on 9 October 2001. He deposes as to the resubmission of Ms Huang's literature review in September and November 2001.
Dr Markovic deposes as to his knowledge of events relating to Ms Huang in 2002. He deposes as to his dealings with Ms Huang in relation to her literature review, a grievance handled by Ms Gardiner and the review of Ms Huang's research plan in March 2002. Dr Markovic deposes as to allegations of fraud and plagiarism made against him by Ms Huang which he was required to respond to in about August 2002.
Under cross-examination, Dr Markovic:
admitted that he knew Ms Huang was a migrant and that English was her second language;
admitted that he knew Ms Huang required an English proficiency certificate to undertake her university studies and noted that she had obtained it;
admitted that he supported scholarship applications made by Ms Huang in 1998, 1999 and 2000;
was not able to say with certainty whether he had or had not supported any scholarship application made by Ms Huang in 2001;
conceded that he might have written referee reports for two scholarship applications Ms Huang made in 2001;
did not accept that his support for Ms Huang's scholarship applications equated to satisfaction with the progress in her PhD programme and did not accept that her Chinese academic results were comparable to those obtained in Australia;
resisted suggestions from Ms Huang that he was not actively involved in research after 1992;
stressed that scientific research is a co-operative effort and that research involved teams rather than researchers working alone;
differentiated this from his expectation that his PhD students would be self motivated and self directed;
stated that he had not previously seen a record of interview between him and Professor McLachlan on 27 August 2002 and disagreed with criticisms of him in that record of interview;
resisted suggestions from Ms Huang that he treated her differently from other students in the laboratory;
denied that it was Ms Huang's idea to use acetic acid as a leachate in the biological testing of soil and denied that she was the first person in the school to use it;
accepted that at the time he supported Ms Huang undertaking further research on the use of acetic acid;
accepted that Ms Huang had restricted access to laboratory equipment until she had received training and noted that training had been delayed at the request of Ms Huang;
denied that Ms Huang was discriminated against in the provision of training;
stated that Ms Huang had been very persistent in her demands of him and had "driven him bananas";
admitted that in September 2001 he was awaiting Ms Huang's ideas about experimental methods for the use of acetic acid in toxicity testing;
agreed that he had encouraged Ms Huang in 1999 to write for publication and stated that this was to assist her chances of obtaining a scholarship;
denied that in July 1999 Ms Huang had given him a research plan and explained that what he was given was a research outline, which was a general outline of what would be done, as distinct from a detailed description of how research would be conducted (a research plan);
admitted that in a review of Ms Huang's progress at the end of 1999 he had stated that she had completed a literature review but said that this statement was wrong;
denied that the school received funding from SOCOG or that an ice dryer was purchased from SOCOG money;
denied that he was happy with Ms Huang's progress in 1999 and admitted that he had mistakenly stated in his evaluation report that she had completed a research plan and literature review in that year;
admitted that he knew Ms Huang was single;
denied making any comments of a sexual nature to Ms Huang;
denied any romantic or sexual interest in Ms Huang;
denied offering her any favours;
denied being angry with her for no reason;
denied that he "stared" at Ms Huang with sexual interest;
denied using laboratory employment as a means of gaining favour;
recalled the incident in 1999 during a laboratory visit by a group of visiting Asian students in which he described laboratory hazards and, in response to a question from Ms Huang (who was present), spread his arms and said something to her (although he could not remember his precise words) but stated that he thought he said, "definitely not";
denied saying "I will kill you" or "I would kill you";
denied any romantic or sexual interest in any other female students who were contemporaries of Ms Huang and denied treating other female students more favourably than Ms Huang;
described Ms Huang's allegations as "insane";
described Ms Huang as "mentally ill";
denied any discrimination of Ms Huang in relation to the allocation of equipment;
stated that he was "pressured" by Ms Huang to support her scholarship applications;
denied that prior to 2001 he did not say that Ms Huang's research work was unsatisfactory and referred to a letter written in 2000 outlining some problems;
denied that the letter bore an incorrect date and denied that it was actually prepared for the purposes of a review conducted in March 2001;
denied that Ms Huang was not given the opportunity to discuss his written criticisms of her at the March 2001 review;
denied any failure to deal with a complaint made by Ms Huang in his response dated 12 March 2001[139];
denied that he changed his attitude to Ms Huang because of complaints she made against him;
admitted that Ms Huang had raised issues concerning her mental health in around May 2001 and added that he became concerned about the content of her e-mails at around that time as indicating mental health problems;
could not recall seeing medical certificates provided by Ms Huang; and
insisted that Ms Huang was excluded from the PhD programme when she failed to reach required milestones.
In re-examination Dr Markovic stated that he was responsible for the publication of an Australian standard for a bottle leaching procedure using acetic acid for the testing of contaminated soils. He also stated that it was university policy that postgraduate students should be reviewed in the first year of their programme but that this did not occur in the case of Ms Huang because she had been unwell. He reiterated that his relationship with all of his students was purely professional. He also said that he became aware of Ms Huang's complaint of harassment and discrimination against him in 2002 following the refusal of Ms Huang's re-enrolment.
[50]
Professor Winder was Ms Huang's co-supervisor. He deposes as to his academic history and university policy in relation to the supervision of PhD students. He deposes that he has no recollection of the incident alleged by Ms Huang in 1999 when he allegedly touched her. He denies any deliberate touching or touching with any sexual intent. Professor Winder deposes that he was on sabbatical in the UK from May to September 1999.
Professor Winder deposes that in late 2000 there was a change in Commonwealth government policy regarding the funding and timely completion of research degrees. He refers to correspondence concerning Ms Huang's progress and deposes that he expressed his view in a letter dated 13 September 2001 that Ms Huang may not have the requisite capabilities to carry out her research work. He deposes as to the literature review submitted by Ms Huang in September 2001 which he found to be below any minimal standard expected by a research student in their second year of study. He deposes as to subsequent dealings with Ms Huang and others concerning her.
Professor Winder deposes as to a redraft of Ms Huang's literature review submitted in November 2001. He deposes that he outlined his concerns with this draft (and those of Dr Markovic) in a letter to Ms Huang dated 3 January 2002. He deposes as to his knowledge of a grievance made by Ms Huang early in 2002.
Professor Winder deposes as to a draft research plan submitted by Ms Huang in February 2002. He deposes that Ms Huang did not submit a further redrafted literature review. He deposes that he wrote to Ms Huang on 27 February 2002 advising her that the draft research plan needed finalisation for consideration of her suitability for re-enrolment. He deposes as to subsequent correspondence.
Professor Winder deposes that on 4 March 2002 he advised Ms Huang by letter that he would recommend to the Faculty of Science's higher degree committee that her candidature be terminated. He deposes as to subsequent developments, including the placement of Ms Huang on programme leave and a request from the higher degree committee that Ms Huang show cause why her candidature should continue.
Professor Winder deposes as to his knowledge of a complaint made by Ms Huang in June 2002. He deposes that in July 2002 he became aware for the first time of the allegations against him of sexual harassment and discrimination.
In cross-examination Professor Winder:
admitted that he had supported the scholarship applications made by Ms Huang in 2001;
stated that he did not have detailed knowledge of dealings between Ms Huang and Dr Markovic between 1999 and 2002 and stated that while Dr Markovic had discussed Ms Huang's research progress with him, this was after 1999;
confirmed that he had no recollection of the alleged incident in a corridor in late 1999 or early 2000 in which Ms Huang alleges he touched her upper thigh or hip with his hand as they passed, making an upward stroking motion with his hand;
stated that the touching as demonstrated by Ms Huang with the assistance of the interpreter would have been intentional and stated that it did not happen as demonstrated;
admitted that in 2001 he was aware that Ms Huang wished to change supervisors but denied knowledge of the reason;
admitted that he probably received a letter from Ms Huang dated 13 September 2001 in which she referred to stress and nervousness in working with Dr Markovic;
denied any knowledge of a gender issue in relation to the supervision of Ms Huang;
admitted seeking advice from Ms Sybille Frank (who was investigating Ms Huang's allegation of harassment against him), and said that he sought procedural advice as he did not understand the procedure for dealing with the complaint;
denied any formal discussion with Ms Frank before his interview with her in relation to her investigation of the complaint;
stated that he provided a general summary of issues concerning Ms Huang to Ms Frank;
in response to a question from me said that the provision of this document was to draw Ms Frank's attention to "broader issues";
stated that, at their interview, Ms Frank told him she was not there to assist him and that she would prepare a report. Ms Frank had inquired about a pattern of conduct and noted his statements about the relevant events. Ms Frank had told him that she felt that there was probably no case to answer in relation to the single incident alleged;
stated that he was "relieved" by that advice;
stated that he told Ms Frank that he did not recall the alleged incident and that if any touching had occurred that it would have been accidental but that it probably did not occur at all;
stated that he also told Ms Frank that he observed no reticence on the part of Ms Huang in her dealings with him in the period after the alleged incident;
denied that he had insufficient dealings with Ms Huang either before or after the time of the alleged incident in order to form any view about any change of attitude on the part of Ms Huang;
denied any disagreement with Dianne Gardiner in relation to the re-enrolment of Ms Huang in 2002;
admitted that in his discussions with Ms Huang there was no small talk either at the beginning or the end of a discussion but denied that Ms Huang was nervous during their meetings;
In re-examination Professor Winder said that, ordinarily, in the first year of a PhD programme he would expect to receive from the candidate at least parts of literature research. He said that the first literature review produced by Ms Huang in September 2001 was embarrassing, not for its poor grammar and English, but rather for the failure of Ms Huang to demonstrate analytical skills and the absence of any demonstrated critical or "synthetic" skills, which Professor Winder explained as the skill to draw together disparate pieces of information into a coherent whole.
[51]
Ms Frank is an equity officer employed by the University. She works in the equity and diversity unit of the University. The unit provides advice and support services to students and staff about equity and social justice issues, including advice and information on anti-discrimination legislation, policies and practice, and assistance with grievance handling under the University's discrimination and harassment grievance procedures.
Ms Frank deposes as to her dealings with Ms Huang on and from 25 March 2002. She deposes as to the complaint lodged formally by Ms Huang with the University in June 2002 which dealt in part with her allegations of unlawful discrimination and sexual harassment. Ms Frank investigated that complaint.
Ms Frank deposes as to her interviews with Ms Huang concerning her complaints of harassment and discrimination and interviews she conducted with Dr Markovic, Chaminda Abayawickrama, Shamasuzzaman Uzzaman, Fatima Lestari and Professor Winder. Ms Frank also deposes as to discussions she had with Ms Huang and Professor McLachlan, Mr Hulme and Ms Jane Gatwood concerning Ms Huang's complaints, her enrolment status and allegations of fraud and plagiarism.
In her second affidavit Ms Frank responds to parts of Ms Huang's affidavits.
Under cross-examination Ms Frank:
confirmed that Ms Huang had been referred to her by Ms Clare Nabke-Hatton and that she had met Ms Nabke-Hatton to discuss the matter on 21 March 2002;
confirmed that she met Ms Huang on 25 March 2002 when they discussed an initial "report" setting out Ms Huang's complaints;
could not recall having previously seen correspondence from the University concerning the cancellation of Ms Huang's PhD enrolment;
confirmed that she had prepared a summary of her actions which forms HH-P5 to Ms Huang's affidavit "4" filed on 16 May 2005.
confirmed that she had discussed with Ms Huang and with Mr Hulme options for dealing with the various issues raised by Ms Huang;
could not recall the detail of particular conversations identified by Ms Huang in May and June 2002;
denied suggestions from Ms Huang that she had suggested delaying or deleting Ms Huang's complaints of harassment;
agreed that she had told Ms Huang that the University's higher degree committee could not consider her allegations of harassment;
stated, in answer to a question from me, that she saw her role as to discuss the various issues with Ms Huang and assist her to deal with them and to investigate the complaints of harassment and discrimination;
denied suggestions from Ms Huang that she sought to influence her as to the content of the formal complaint eventually lodged by Ms Huang;
agreed that she had discussed the first "report" prepared by Ms Huang in March 2002 and that she had queried various aspects with Ms Huang that she had found difficult to understand and in respect of which she had noted repetition;
denied that she suggested giving priority to Ms Huang's concerns over her enrolment status;
stated that Ms Huang had told her that her principal concern was her enrolment status;
agreed that Ms Huang had expressed a desire to change supervisors and to have female supervisors;
accepted that there were differences between the "report" she had discussed with Ms Huang and the final "report" formally lodged with the University as a statement of Ms Huang's complaints, but denied that she was responsible for the differences;
agreed that she had discussed the options available to Ms Huang with her in relation to the various aspects of her complaints;
agreed that she had prepared an options documents and made notes on it (exhibit A22) but resisted suggestions from Ms Huang that she or Mr Hulme were responsible for eliminating various options;
agreed that she had not conducted any interviews in relation to Ms Huang's complaints of harassment before July 2002;
agreed that the handwriting on the document which became exhibit A27 was hers;
agreed that she had met Ms Huang on 3 July 2002 where they had discussed a summary of Ms Huang's allegations prepared by Ms Huang;
denied strenuously that when she and Ms Huang had discussed the alleged touching incident involving Professor Winder, that Ms Huang had demonstrated and upward stroking motion from the wrist on her upper thigh with a straight outstretched arm, insisting, rather that Ms Huang had demonstrated a swinging arm motion with the arm only slightly outstretched from the body;
accepted that the word "brushed" in her report in relation to this incident was her word and said that Ms Huang had probably used the word "touched";
resisted suggestions from Ms Huang that her description of the incident indicated intentional touching of Ms Huang by Professor Winder;
denied that she had sought to persuade Ms Huang that the incident was an accident but agreed that she had asked Ms Huang if it could be;
agreed that she discussed with Ms Huang on 3 July 2002 Ms Huang's harassment allegations against Dr Markovic;
could not recall Ms Huang saying anything at that time about Dr Markovic laughing as he reached towards her;
noted that there was nothing in Ms Huang's "report" of her complaints prepared in March 2002 about laughing;
agreed that she had queried with Ms Huang why she thought Dr Markovic's actions indicated any sexual interest;
stated that Ms Huang had answered "no" to her enquiry whether Dr Markovic had made any direct sexual proposal to her;
agreed that she had interviewed Dr Markovic about the harassment allegations against him on 1 August 2002 and agreed that the notes forming annexure HH-P12 to Ms Huang's affidavit "4" were hers;
confirmed that she asked Dr Markovic about Ms Huang's allegations, including in relation to alleged inappropriate comments and that Dr Markovic had suggested a particular comment could have been made by a student (possibly Mr Uzzaman);
agreed that an e-mail received from Mr Abayawickrama, while generally supportive of Dr Markovic and critical of Ms Huang, had suggested that Dr Markovic may well have made a comment about Ms Huang's age and single status and added that Dr Markovic had strenuously denied the allegation but had been counselled about the possible comment; and
accepted that the handwriting on MFI A18 was hers (at which point I accepted the document as an exhibit - A18).
[52]
Section 3 of the HREOC Act defines unlawful discrimination as:
[53]
any acts, omissions or practices that are unlawful under:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
[65]
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
[66]
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
[67]
(2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
[68]
(3) The unlawful discrimination alleged in the application:
[69]
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
[70]
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
[71]
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
[72]
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
[73]
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
[74]
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.
[75]
"conduct of a 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.
[76]
(1) It is unlawful for a member of the staff of an educational institution to sexually harass:
[77]
(a) a person who is a student at the institution; or
[78]
(b) a person who is seeking to become a student at the institution.
[79]
(2) It is unlawful for a person who is an adult student at an educational institution to sexually harass:
[80]
(a) a person who is an adult student at the institution; or
[81]
"adult student" means a student who has attained the age of 16 years.
[82]
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
[83]
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
[84]
(b) the other person does not or cannot comply with the term, condition or requirement; and
[85]
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
[86]
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.
[87]
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
[88]
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.'
[89]
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
[90]
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
[91]
(b) which is not reasonable having regard to the circumstances of the case; and
[92]
(c) with which the aggrieved person does not or is not able to comply.
[93]
(a) total or partial loss of the person's bodily or mental functions; or
[94]
(b) total or partial loss of a part of the body; or
[95]
(c) the presence in the body of organisms causing disease or illness; or
[96]
(d) the presence in the body of organisms capable of causing disease or illness; or
[97]
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
[98]
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
[99]
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
[100]
(1) A person shall not commit an act of victimization against another person.
[101]
(a) in the case of a natural person - $2,500 or imprisonment for 3 months, or both; or
[102]
(2) For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(c) has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ;
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;
[110]
or on the ground that the first mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.
[111]
(3) It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.
[112]
Section 42 of the DDA contains a similar provision. The RDA deals with victimisation in s.27.
[113]
[1] The application against Mr Chaminda Abayawickrama was severed as it had not been served at the time the severance order was made in late 2005. On 5 June 2006, following statements from Ms Huang that Mr Abayawickrama had been served in Sri Lanka, I made orders for a separate trial relating to questions of Mr Abayawickrama's liability, and any vicarious liability of the University. I also called for evidence proving service. The application against Mr Fuchun Xiao has already been heard: see Huang v University of New South Wales & Ors[2005] FMCA 463. In Huang v University of New South Wales (No 3)[2006] FCA 626 the Federal Court ordered a re-trial of that aspect of the proceedings, separately from all other issues in the proceedings. On 5 June 2006 I disqualified myself from further involvement in that aspect of the proceedings.
[135] annexure CW23 to the affidavit of Professor Winder
[155]
[137] annexure CW9 to the affidavit of Professor Winder
[156]
[138] annexure CW2 to Professor Winder's affidavit
[157]
[139] see annexure BM17 to the affidavit of Dr Markovic
Parties
Applicant/Plaintiff:
Huang
Respondent/Defendant:
University of New South Wales & Ors [2008] FMCA 11
Legislation Cited (7)
Discrimination Act 1992
Magistrates Act 1999
Rights and Equal Opportunity Commission Act 1986
Discrimination Act 1975
Discrimination Act 1994
Discrimination Act 1984
Discrimination Act 2004
Cases Cited (1)
(1989) 85 ALR 503
did not agree that Ms Huang had a tendency to cover up unpleasant things but stated that her personality was polite, reserved and respectful at all times and that there could be a component of reticence and conflict avoidance at times;
was generally aware of complaints made by Ms Huang in 2001 about her computer but stated that the resolution of those problems was a matter for her supervisor;
in relation to the letter annexed to his affidavit at CW2, saw no discrepancy in warning Ms Huang to work harder and supporting her scholarship applications;
said that the warning was issued to Ms Huang because Professor Winder had seen no work produced by Ms Huang and he expected that there should have been work;
said that the warning was also issued in consequence of a change of government policy which required the University to pay stricter attention to the progress of postgraduate students;
accepted that, as a part time student in 2001, Ms Huang could potentially take up to eight years to complete her PhD;
said that paragraph 2 of the letter at CW2 was generic and had been included in letters to a number of students who the University considered might be in trouble. Professor Winder said that the paragraph was a caution, not a threat;
disagreed that it was impossible for Ms Huang to undertake full time studies in 2001 without a scholarship;
agreed that Ms Huang changed from full time to part time studies in 2001 so that she could work;
said he was not aware at the time the letter at CW2 was sent that there was a need to consider whether Ms Huang had special needs warranting special consideration;
said that the allocation of keys for access to various parts of the school premises was a matter for Mr Ray Locke and that student requests for the allocation of keys should go through their supervisors;
said that the review conducted on 26 March 2001 was the first formal review of Ms Huang's progress;
said that the usual procedure at such a review was for both the student and the supervisor to be interviewed by the research co-ordinator and for there then to be a three way a discussion about the student's progress - and was not aware whether that procedure was followed at the review on 26 March 2001;
had no recollection of Ms Huang being asked to sign Dr Markovic's report on her progress when she asserted a lack of understanding of it;
did not recall attending the review;
was unable to say whether the letter from Professor McIntosh forming annexure HH-K5 to the affidavit of Ms Huang was the letter that would ordinarily follow the review and noted that the content of the letter (as well as the date) was consistent with it having been sent sometime earlier;
did not accept that the requirements imposed by Professor McIntosh in the letter were unfair as at 26 March 2001;
was unaware of Dr Markovic's assessment at the end of 1999 (which in his evidence he stated was erroneous) that Ms Huang had completed a literature review in 1999;
speculated that a research outline prepared by Ms Huang for the review on 26 March 2001 had been prepared in response to Professor McIntosh's letter;
accepted that a research plan could change over the course of a PhD programme;
stated that he had not discussed with Dr Markovic a request for resources made by Ms Huang as the resources requested were a matter for Dr Markovic, the school just providing basic accommodation;
said that he had not discussed the computer issue with Dr Markovic until a complaint had been made by another staff member (Mr Yusuf) which resulted in Professor Winder writing the letter at annexure CW7 to his affidavit;
supported the decision by Dr Markovic to require Ms Huang to work with three other students in the latter part of 2001;
in relation to the implosion incident, gave his opinion that Ms Huang was likely to have been at fault in not paying attention to the equipment in order to note the change in tone of the equipment as the vacuum produced during the procedure increased;
noted the conclusions reached by Professor McLachlan in her report on Ms Huang's allegations of fraud and plagiarism against Dr Markovic;
accepted that Dr Markovic was looking for a commercial application for the soil testing work but did not accept that Dr Markovic "was only after money" as suggested by Ms Huang;
said that he was concerned about Ms Huang's lack of progress because the literature review she produced in September 2001 was "embarrassing" and that he and Dr Markovic were "appalled";
said that he was not aware of asserted limitations in the software of Ms Huang's word processing software on her computer but was aware of a certificate of sickness provided by Ms Huang for stress;
denied that he had offered to take over as Ms Huang's supervisor but said that he had been happy to remain as her co-supervisor;
disagreed that exhibit R5 discloses any indication of a change of supervisor and did not know why the supervisor's report on the form had not been filled in;
agreed that a high proportion of postgraduate students in the school had a first language other than English and said that his views on Ms Huang's poor English ability related to her literature review and that English training was available but he suspected that Ms Huang had ignored it; and
said that there was no inconsistency between Ms Huang's successful completion of her masters thesis and her failure to complete the PhD programme because the masters thesis required a much lower standard of work.