Huang v University of NSW & Ors [2005] FMCA 463

I received into evidence Ms Huang's affidavits filed on 29 October 2004, 30 August 2004 and 21 August 2003 (to which was annexed the termination letter and explanatory documents from the Human Rights and Equal Opportunity Commission dated 28 July 2003). I also received into evidence an affidavit of service by Mr John Wooldridge filed on 17 September 2004 and an affidavit by Daljae Park, a researcher at the University, filed on 29 March 2005. Mr Park was not available for cross-examination and, in the circumstances, I gave the affidavit minimal weight.

I received as exhibits copies of two letters Ms Huang wrote to the Human Rights and Equal Opportunity Commission, the first erroneously dated 29 January 2002 but which should have been dated 29 January 2003 (exhibit A1) and the second dated 31 October 2002 (exhibit A2). Exhibit A2 was written before exhibit A1. In these two letters Ms Huang made her relevant complaints against Mr Xiao.

I declined to accept into evidence a further affidavit by Yi Wang relating to asserted threatening behaviour by Mr Xiao. I declined to accept that affidavit both because Ms Wang was not available for cross-examination and also because I regarded her evidence as irrelevant to the issue of sexual harassment that I had to decide. The allegation of threatening behaviour by Mr Xiao relates to asserted events in 2004, well after the termination of the complaint by HREOC and both before and after Mr Xiao was formally served by Mr Wooldridge in these proceedings. The allegations appear to extend to unnecessary and probably inappropriate attempts at service upon Mr Xiao by Ms Huang and Ms Wang.

Mr Xiao relies upon his affidavit filed on 4 April 2005. I also received into evidence paragraphs 1, 2 and 3 of the affidavit of Sybille Frank filed on 14 January 2005 relating to a complaint of sexual harassment made to Ms Frank by Ms Huang.

Section 46PO of the HREOC Act provides as follows:

(a) a complaint has been terminated by the President under section 46PE or 46PH; and

(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

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.

Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(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.

(3) The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re-employ an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976 ).

(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.

(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).

(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

"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.

(1) It is unlawful for a member of the staff of an educational institution to sexually harass:

(a) a person who is a student at the institution; or

(b) a person who is seeking to become a student at the institution.

(2) It is unlawful for a person who is an adult student at an educational institution to sexually harass:

(a) a person who is an adult student at the institution; or

"adult student" means a student who has attained the age of 16 years.

(1) A person shall not commit an act of victimization against another person.

(a) in the case of a natural person-$2,500 or imprisonment for 3 months, or both; or

(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:

(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ;

(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any 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 ;

(d) has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ;

(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ;

(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or

(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;

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.

(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.

Section 106 of the SDA provides as follows:

(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

Section 21 of the SDA provides as follows:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's sex, marital status, pregnancy or potential pregnancy:

(a) by refusing or failing to accept the person's application for admission as a student; or

(b) in the terms or conditions on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's sex, marital status, pregnancy or potential pregnancy:

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority;

(c) by subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a refusal or failure to accept a person's application for admission as a student at an educational institution where:

(a) the educational institution is conducted solely for students of the opposite sex to the sex of the applicant; or

(b) except in the case of an institution of tertiary education-education or training at the level at which the applicant is seeking education or training is provided by the educational institution only or mainly for students of the opposite sex to the sex of the applicant.

(4) This section binds the Crown in right of a State.

Only Mr Xiao produced written submissions. In her oral submissions Ms Huang asserts that she was upset and adversely affected by the pictures Mr Xiao showed her. She concedes that she made no complaint about Mr Xiao to the University and made no complaint about him in her original complaint to HREOC. Her complaint against Mr Xiao was added later in exhibits A1 and A2. She asserts that the delay in making any complaint against Mr Xiao was because of memory problems brought about by other discrimination and harassment suffered by her. She denies any mental problem could have affected her understanding of what occurred in relation to Mr Xiao. Ms Huang asserts that the University, as well as Mr Xiao, are liable for Mr Xiao's actions both because the University is vicariously liable (apparently on the basis that Mr Xiao received a scholarship from the University at some point and at some point worked at the University library) and also because the University allegedly subjected Ms Huang to a detriment in not preventing the sexual harassment and not dealing appropriately with it.

Mr Xiao denies all sexual harassment in 1999 and 2001 as alleged against him by Ms Huang. He denies that he showed her pornographic pictures or that he had any intention to sexually harass her in 1999. He says that he cannot recall helping Ms Huang download any software in August or September 2001 and denies showing her any pornographic pictures at that time. Mr Xiao draws attention to the fact that although Ms Huang made complaints of sexual harassment to Sybille Frank of the University in 2002, she made no complaint at that time against him. Neither did Ms Huang refer to Mr Xiao in her original complaint to HREOC.

Ms Oakley submits that there are issues of credit that require resolution as between Ms Huang and Mr Xiao. Ms Oakley notes that on Mr Xiao's evidence, he did assist Ms Huang to gain access to Chinese newspaper internet sites in 1999 and Ms Huang gave him a gift of clothes for his wife in apparent gratitude for his efforts. She submits that no issue of vicarious liability arises even if Mr Xiao did harass Ms Huang because Ms Huang only knew Mr Xiao as a student and there is no issue of vicarious liability for Mr Xiao as a servant or agent of the university. Ms Oakley also submits that no case of direct liability against the University has been established.

In reply, Ms Huang asserts that the harassment occurred in relation to research activities undertaken by her and Mr Xiao which is similar to employment. She draws attention to the fact that she is a self represented litigant without a thorough understanding of legal issues.

There is no substance to the claim of victimisation against Mr Xiao and neither do I have any jurisdiction to hear it. In theory, in addition to being a criminal offence under the SDA, victimisation may be the subject of a complaint to HREOC and subsequent proceedings in this Court. However, no complaint of victimisation against him has been made to HREOC. This is not surprising as the allegations against him relate to dates in August 2004, well after the termination of the complaints that were made to HREOC. On that basis I ruled that I had no jurisdiction in relation to the complaint of victimisation. Even if I did have jurisdiction the claim is futile. The facts as asserted by Ms Huang relate to attempted service on Mr Xiao by Ms Huang during August 2004 including after Mr Xiao had been served by Mr Wooldridge in these proceedings. There was no reason, after Mr Xiao had been served with the originating process, for Ms Wang or anyone else on her behalf to go to Mr Xiao's home and attempt to present him with documents. It was apparent from the dynamics in the court room and angry words exchanged between Mr Xiao and Ms Huang that Mr Xiao feels aggrieved by being subjected to the present proceedings by Ms Huang. At most, it appears that Mr Xiao might have become angry and sworn at Ms Huang when she and an associate went to Mr Xiao's home and attempted to present him with documents. It would not be surprising if Mr Xiao did become angry and swear in these circumstances. Ms Huang had confronted Mr Xiao previously on several occasions and attempted to present him with documents. She had also been sending him emails. After Mr Xiao was served by Mr Wooldridge on 19 August 2004 there was no reason for Ms Huang or any associate on her behalf to personally present documents to Mr Xiao.

There is also no substance to the claim against the University under s.21(2) of the SDA. This appears to be a claim of direct sex discrimination on the basis that Ms Huang was subjected to a detriment by the University by being exposed to sexual harassment and not having her complaint properly dealt with. The first difficulty confronting Ms Huang is that there is no evidence that the University treated her any less favourably than the University would have treated a man in the same or similar circumstances. Secondly, while Ms Huang complained to the University of alleged sexual harassment by others, she made no complaint to the University against Mr Xiao. The University could not deal with something that it did not know about.

Thirdly, there is no basis for a claim of vicarious liability against the University in relation to the asserted sexual harassment by Mr Xiao. Section 106 of the SDA is limited to vicarious liability for the acts of employees or agents. Mr Xiao was at the relevant time a PhD student at the university. The fact that he was at some time in receipt of a scholarship does not make him an employee or agent. Further, although Ms Huang asserts that at sometime Mr Xiao did some work in the University library, she was able to provide no details because she knew of none. Further, as is pointed out by Ms Oakley, Ms Huang only knew Mr Xiao as a fellow PhD student, not as an employee or agent of the University. This is underscored by the particulars of her application. Ms Huang relies upon s.28F(2) of the SDA which deals with harassment by an adult student of another adult student at an educational institution. I find that no issue of vicarious liability arises in these proceedings.

As to the sexual harassment claim against Mr Xiao, Ms Huang makes no assertion of an unwelcome sexual advance or an unwelcome request for sexual favours by Mr Xiao. Her claim relies upon the assertion that Mr Xiao engaged in other unwelcome conduct of a sexual nature in relation to her by showing her pornographic pictures on the internet. In order to succeed in her claim, Ms Huang must establish that the asserted events took place and occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would have been offended, humiliated or intimidated.

As I have noted at the outset of this judgment, Ms Huang asserts two events of sexual harassment in 1999 and 2001. Only the 2001 incident is referred to by the delegate of the President of HREOC in the termination letter dated 28 July 2003. I do not think that anything turns on that limitation. Exhibits A1 and A2 establish to my satisfaction that Ms Huang raised both incidents in the course of her complaint to HREOC and HREOC intended to terminate all aspects of the complaint against Mr Xiao on the basis that the complaint was made in relation to events occurring more than 12 months before the complaint. I am satisfied that I have jurisdiction to deal with both elements of the complaint of sexual harassment.

There is a dispute of fact between Mr Xiao and Ms Huang as to what occurred in relation to the 1999 incident and whether anything occurred in 2001. Mr Xiao and Ms Huang agree that at some stage (probably in 1999) Ms Huang sought Mr Xiao's assistance in accessing Chinese language newspapers on the internet. Mr Xiao says that he showed her two Chinese news websites. The first was www.peopledaily.com.cn and the second was www.ausdaily.com.au which is apparently the website of a Chinese language Australian newspaper. Although in her affidavits Ms Huang alleged that the latter newspaper, in its internet version, contained pictures of naked women shown to her by Mr Xiao, under cross-examination Ms Huang asserted that in fact the pictures of naked women were not part of the newspaper displayed on the internet but were separate windows associated with the newspaper website. This was corroborated by Mr Xiao. He alluded to pictures of girls in responding to email correspondence from Ms Huang in relation to these proceedings. Under cross-examination, Mr Xiao said that the Australian newspaper website did contain images of attractive young Asian girls and that it was possible to "rate" them by allocating a score to each picture. Mr Xiao denies showing these pictures to Ms Huang but said that Ms Huang would have been able to access them and would almost certainly have seen them in visiting the ausdaily website.

I find that Mr Xiao did what was asked of him by Ms Huang in showing her how to access the two Chinese language newspaper websites on the internet referred to above. It was not Mr Xiao's fault that the Australian newspaper site contained pictures of young Asian women who may or may not have been naked. Even if Mr Xiao did show Ms Huang some of these pictures, there is no evidence that Ms Huang made any complaint to Mr Xiao about his conduct at the time. In her affidavits, and other documents, Ms Huang recounts what she was shown but does not say anything about her reaction.

I think it unlikely that Ms Huang was offended, humiliated or intimidated by anything done on this occasion by Mr Xiao. The lack of any complaint to him, the lack of any reference to her reaction and the lack of any complaint to the University (or initially to HREOC) all supports this view. In my view, a reasonable person, noting that Ms Huang had asked Mr Xiao to show her how to access a Chinese language newspaper website, would not have anticipated that Ms Huang would be offended, humiliated or intimidated by seeing incidental erotic images displayed on that website. If Mr Xiao did show erotic images to Ms Huang on this occasion, it was simply a by-product of him responding to the request made to him to show Ms Huang how to access the Chinese language newspaper website.

I also accept Mr Xiao's evidence that following this incident Ms Huang made a gift of used clothing to Mr Xiao, which would have been inconsistent with a feeling of offence, humiliation or intimidation by Mr Xiao's conduct. Further, on Ms Huang's evidence, she returned to Mr Xiao for further assistance with her computer in 2001. If Mr Xiao had sexually harassed Ms Huang in 1999 by showing her computer images that she did not want to see, it is hard to understand why Ms Huang sought out Mr Xiao in 2001 for further assistance with her computer.

Under cross-examination, Ms Huang said that she sought Mr Xiao's assistance in order to download Acrobat Reader software from the internet. She says that she went to Mr Xiao after other students could not assist her. The affidavit of Mr Park provides some corroboration of the assertion that assistance had been sought by Ms Huang from other students.

For his part, Mr Xiao says that he cannot recall providing any such assistance to Ms Huang in 2001, and points out that by that stage he had completed his PhD and was no longer a student at the same part of the University as Ms Huang. Nevertheless, Ms Huang asserts that Mr Xiao still had access to the University premises she occupied and still had computer access. That is possible as at the time Mr Xiao was a student elsewhere in the University.

Ms Huang asserts that Mr Xiao did download the Acrobat Reader software from the internet for her and put it on her computer. She asserts that at the same time Mr Xiao showed her an image of a man and a woman "intending to have sex". Under cross-examination Ms Huang told me that by this she means that the man and the woman were naked and in a sexual pose. Mr Xiao categorically denies that he showed any such image to Ms Huang. Ms Huang asserts that Mr Xiao was in the habit of looking at pornographic images on the internet and that on several occasions during 2001 she observed him doing so.

However, the mere fact that Mr Xiao may have looked at pornographic images on the internet does not establish sexual harassment unless he showed the images to an unwilling viewer. With the exception of the specific incident concerning the image of the man and the woman "intending to have sex", Ms Huang asserts that she saw Mr Xiao looking at pornographic images in 2001, not that Mr Xiao showed her such images. There is no evidence that Ms Huang made any critical comment to Mr Xiao or anyone else about Mr Xiao's alleged viewing of pornographic images. This suggests that Ms Huang was not at the time shocked by that activity. Secondly, if Mr Xiao did show Ms Huang an image of a man and a woman "intending to have sex" the fact that Ms Huang made no reference to that incident in the complaints of sexual harassment she made to the University in 2002 and the fact that she made no mention of it in her original complaint to HREOC suggests that she did not regard it as especially important. I do not accept Ms Huang's assertion of temporary memory loss.

It is generally accepted that allegations of sexual harassment should be proved to the Briginshaw standard. This means that I require a high degree of satisfaction that the events alleged by Ms Huang happened. I do not have that high degree of satisfaction. Mr Xiao gives a plausible explanation of what occurred in 1999. I prefer his evidence. It is possible that Mr Xiao showed Ms Huang a pornographic image in 2001 but I do not have the high degree of satisfaction necessary for me to find that this did occur. If it did occur (and I make no finding that it did) a reasonable person would not have anticipated that Ms Huang, having already observed Mr Xiao looking at such images and, on her account, having been shown erotic images some two years before and having made no complaint about it, would have been offended, humiliated or intimidated by being shown a further erotic image. The fact that Ms Huang made no complaint about this alleged conduct until more than 12 months afterwards, although she was expressly given the opportunity to make a complaint in 2002, supports this conclusion. The claim of sexual harassment fails.

Even if I were wrong in all of the above and Mr Xiao had sexually harassed Ms Huang in the manner asserted by Ms Huang, the only relief that I would have granted would have been an order under s46PO(4)(f) of the HREOC Act, namely an order declaring that it would be inappropriate for any further action to be taken in the matter. These alleged events occurred between four and seven years ago. Even on Ms Huang's account they were relatively trivial. Ms Huang has confronted Mr Xiao repeatedly with her allegations over the past two years, both in person and by email. This is obsessive conduct. The conduct alleged against Mr Xiao did not warrant any complaint to the University because no complaint was made. It is hard to see why, in the circumstances, it warranted a complaint to HREOC. It did not, in my view, warrant the institution of these proceedings.

I will hear the parties as to costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM