Liang v University of Technology Sydney

Supreme Court of NSW|2019-07-26|Before: Hulme J

Solicitors: Barry Nilsson Lawyers (Defendants) File Number(s): 2018/329329

Judgment

HIS HONOUR: The following are judgments given on Friday 26 July 2019 in proceedings brought by Dr Guohua Liang against the University of Technology Sydney and two individuals. The University is the active defendant. Before the Court were applications brought by the University by an amended notice of motion filed on 25 March 2019 to have set aside two subpoenas issued by Dr Liang, to require Dr Liang to have the leave of a judge before issuing further subpoenas, and for costs in respect of these applications and of a failed application brought before the duty judge last November.
At the outset of the hearing on 26 July 2019, Dr Liang made an application for an adjournment.

Application to set aside subpoenas

A summons was filed in this Court on 8 October 2018 which was superseded by an amended summons filed on 13 December 2018 seeking leave to appeal in relation to proceedings in NCAT. Somewhat unusually, Dr Liang says that she is seeking to appeal against both the decision made in the principal proceedings and also the decision made on appeal in relation to those proceedings.
Dr Liang commenced proceedings in NCAT on 13 February 2018 in relation to a claim that she had not been provided a service of acceptable quality in relation to an educational course that she undertook at the University of Technology Sydney in February 2015. The University's position is that she failed the course. Her issue is that she did or should have passed the course. What the correct position is doesn't matter for present purposes. She commenced proceedings in NCAT, which went to a hearing on 12 June 2018. On 14 June 2018, the proceedings were dismissed.
Dr Liang then filed an appeal with the Appeal Panel, which was listed for hearing on 14 November 2018. Between the original hearing and the appeal hearing, she also filed her first summons in this Court. The Appeal Panel heard the appeal on 14 November 2018 and gave its decision dismissing the appeal on 29 November 2018.
In that context of the proceedings in this Court (now constituted by the amended summons filed on 13 December 2018), the applicant was granted leave to issue two subpoenas. One was issued on 7 January 2019, to a Ms Christine Burns, an employee of the University. Another, to a Professor Shirley Alexander, was issued on 12 February 2019. The University filed a notice of motion on 21 March 2019 seeking an order setting aside the subpoenas. An amended notice of motion was filed on 25 March 2019, maintaining that application, but adding others which have not been determined at this point of today's proceedings.
On 12 April 2019, the matter was set down by the registrar for hearing today, 26 July 2019.
Dr Liang is self-represented. English is not her first language. I note that she came before the Court on 5 March 2019 and had the benefit of Schmidt J granting her an application for pro bono legal assistance. Such assistance was to extend to her receiving advice in relation to the subpoenas. Dr Liang has indicated during the course of the proceedings today that she had the opportunity of speaking to a barrister for about an hour at some stage, but she felt she did not derive any assistance from that benefit.
Dr Liang has advanced a number of submissions in the course of her written materials, primarily her various affidavits, and has spoken at some length today. It is clear from the written materials and the oral submissions that, with the greatest respect, Dr Liang fails to appreciate the concept of relevance to the issues she may ventilate in an appeal to this Court from NCAT. She appears to appreciate that the appeal is upon the basis of questions of law, but it would appear that what that entails is not very well understood.
The subpoena to Ms Burns is objected to and is sought to be set aside because it seeks material to support a contention that evidence that was before NCAT in the original proceedings was fabricated. The submissions on behalf of counsel, who appears in this Court and who also appeared in the NCAT proceedings, indicate that the evidence went before NCAT without objection, and that the plaintiff had an opportunity to consider the material because it had been provided to her on some earlier occasion pursuant to the tribunal's timetabling orders.
Dr Liang disputes that the material was not objected to in the NCAT proceedings. That is not a relevant dispute to be resolved today. Counsel for the University submits that, even if Dr Liang's contention was made good, it would not be of assistance to her in terms of being relevant to her appeal. On that basis, it is argued that the subpoena to Ms Burns should be set aside.
An additional basis for setting aside the subpoena is in relation to the form of what is required of the recipient. It requires, by some means, for the recipient to "verify" certain things, which is really beyond the scope of what a subpoena can command a recipient do.
On both bases, I'm satisfied that the University's contentions are made good. Just about everything I have heard today, and what I have read, from Dr Liang, confirms the view that what is sought is not relevant to proceedings by way of appeal to this Court from the determinations of NCAT.
In relation to the second subpoena, that is, to Professor Alexander, there are three categories of documents that are sought. The first category is material that is not available and has not been available for some time in physical form (handwritten examination manuscripts). Apparently they were destroyed some years ago in accordance with the University's document retention policy. Dr Liang suggests that it would be available in electronic form, but even if it was - which is not precisely known at this point - it would not be relevant to any asserted errors of law that would be raised in appeal proceedings in this Court.
The other two categories of documents relate to other courses administered by certain persons at the University and to employment which the plaintiff has been engaged in at the University. They are clearly not relevant to the proposed appeal.
It is necessary for a subpoena to be issued on the basis of there being a legitimate forensic purpose for obtaining what is sought to be produced. The written submissions by counsel for the University refer to a decision of Wilson J in Commissioner for Fair Trading v Jonval Builders Pty Limited & Ors [2017] NSWSC 1045 at [21]-[25], which set out conveniently in summary form the relevant principles relating to subpoenas.
I am satisfied that it is clearly the case that what is sought in the two subpoenas issued by the plaintiff falls well short of requiring the production of material to serve any legitimate forensic purpose.
I grant the application and set aside both subpoenas.

Application for order requiring subpoenas only be issued by leave of a judge

The issue exposed by the proceedings brought before the Court today is that the plaintiff, Dr Liang, has difficulty in understanding what is relevant to an application for leave to appeal on a question of law from a decision of NCAT.
Earlier today there have been two subpoenas which have been set aside, essentially because they sought the production of material that was not relevant and, in one respect, was not appropriately the subject of a subpoena. The University has included, amongst the applications it brings today, one that Dr Liang should not obtain the issue of any further subpoenas without the leave of a judge on notice to the defendants.
That is a safeguard that will prevent any recurrence of what has occurred and has been persisted with over the last five or six months or so. It is a safeguard for the University in relation to further unnecessary incurring of costs. It would benefit Dr Liang as well, in that it would guard against her being the subject of further proceedings to set aside subpoenas and consequential potentially adverse costs orders. There is good reason and good sense in making the order sought.
I order that no further subpoenas be issued on behalf of the plaintiff without the leave of a judge obtained on notice to the defendants.

Application for costs of the motion be paid on an indemnity basis

The University has applied for the plaintiff/respondent, Dr Liang, to pay the costs of the motion seeking to set aside subpoenas on an indemnity basis from 4 February 2019. I ruled earlier that the application should succeed and I have set aside the two subpoenas in question.
The University notified Dr Liang by letter of 4 February 2019, that the first of the two subpoenas sought material that was irrelevant to the proceedings, and that is why the date of 4 February 2019 is nominated.
The two subpoenas were clearly irrelevant and the plaintiff has chosen to pursue them, notwithstanding the careful and correct explanation provided in the correspondence. She has made the choice to resist the University's application to set aside the subpoenas. She has caused the defendant to incur costs unnecessarily.
It seems to me that the application has merit. Nothing that has been put by Dr Liang in opposition to the application had any relevance to its merits or otherwise.
However, while accepting the merits, I would not adopt the date of 4 February 2019, but instead that of 13 February 2019, being the date of issue of the second subpoena.
The plaintiff is to pay the defendant's costs of the motion on the ordinary basis until 13 February 2019 and from that date on an indemnity basis.

Application in respect of costs order made by Adamson J on 13 November 2018

On 13 November 2018, Dr Liang brought an urgent application before Adamson J, sitting as the duty judge, for a stay of the hearing of the Appeal Panel of NCAT listed on 14 November 2018. Her Honour refused the application and, at the request of the University, ordered that costs of the motion be reserved: Liang v University of Technology Sydney [2018] NSWSC 1740.
The University's amended notice of motion before the Court today sought an order that Dr Liang pay the University's costs of those proceedings. However, counsel for the University frankly indicated that the purpose of that application was to try and provoke some progress towards final resolution of the proceedings. The University is hopeful that the orders made in respect of the other applications before the Court will have that effect. Accordingly, this application was not pressed today on the basis that it may be revisited at some future time.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2019

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Judgment (8 paragraphs)

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