FEDERAL COURT OF AUSTRALIA

Huang v University of New South Wales (No 3)

[2006] FCA 626

ADMINISTRATIVE LAW – procedural fairness – the power of a judge to tender evidence at general law – apprehension of bias –– whether the evidence tendered by the judge could possibly have made any difference to the outcome of the case – unrepresented litigant – waiver

Held: The Federal Magistrate erred in introducing affidavit evidence on his own motion, and thereby denied the appellant procedural fairness.

Antoun v The Queen (2006) 224 ALR 51 applied

Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734 referred to

Australian Security and Commission v Ampolex Limited (1995) 38 NSWLR 504 referred to

Clark Equipment Credit Australia Ltd v Como Factory Pty Ltd (1988) 14 NSWLR 552 referred to

CSR Ltd v Della Maddalena (2006) 224 ALR 1 referred to

Ebner v Official Trustee (2000) 205 CLR 337 applied

Fox v Percy (2003) 214 CLR 118 referred to

Gillette Australia Pty Ltd v Energiser Australia Pty Ltd (2002) 193 ALR 629 discussed

Galea v Galea (1990) 19 NSWLR 263 referred to

Goldsmith v Sandilands (2002) 190 ALR 370 referred to
Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 referred to

In re Enoch and Zaretzky Bock & Co’s Arbitration [1910] 1 KB 327 applied

John v Rees [1970] Ch 345 referred to

Jones v National Coal Board [1957] 2 QB 55 cited

Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 questioned

Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 referred to

Preston v Carmody (1993) 44 FCR 1 cited

R v Apostilides (1984) 154 CLR 563 applied

R v Esposito (1998) 45 NSWLR 442 referred to

R v Soma (2003) 212 CLR 299 cited

Re Refugee Tribunal ex parte Aala (2000) 204 CLR 82 applied

Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 referred to

Shaw v The Queen (1952) 85 CLR 365 discussed

Stead v State Government Insurance Commission (1986) 161 CLR 141 considered

Titheradge v The King (1917) 24 CLR 107 applied

Vakauta v Kelly (1989) 167 CLR 568 considered

Whitehorn v The Queen (1983) 152 CLR 657 referred to

Yuill v Yuill [1945] P 15 cited

Ipp DA, ‘Judicial Intervention in the Trial Process’ (1995) 69 ALJ 365

Sheppard IF, ‘Court Witnesses – A Desirable or Undesirable Encroachment on the Adversary System?’ (1982) 56 ALJ 234

Wigmore on Evidence (Chadborn Revision) Vol 9 §2483

HONG CUI HUANG v UNIVERSITY OF NEW SOUTH WALES & ORS

NSD 908 OF 2005

RARES J

25 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Each party bear her, his and its costs of the appeal.

3. The appellant pay the respondents’ costs of the motions and hearing relating to her seeking to adduce fresh evidence in the appeal.

4. The order made by the Federal Magistrates Court on 16 May 2005 be set aside and in lieu thereof it be ordered that:

(1) there be heard separately and apart from all other issues in the proceedings all questions of liability and damages relating to the issues raised in paragraphs 15-18 of the Particulars of My Application filed by the applicant on 29 October 2004 as between:

(a)                the applicant and the fifth respondent; and

(b)               the applicant and the first respondent in respect of any vicarious or other legal liability of the first respondent for any conduct of the fifth respondent the subject of question (a) above;

(2) Order (1) take effect for the purposes of the proceedings as if it had been made on 10 March 2005.

5. There be a new trial of the question referred to in Order 4 (‘the Question’).

6. The costs of and relating to the first trial of the Question be in the discretion of the Federal Magistrate who hears the new trial of the Question.

7. The parties have liberty to apply by relisting the appeal on 29 May 2006 at 9.30a.m. in the event that order 4 above does not properly frame the Question.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The substantial issue in this appeal from a decision of the Federal Magistrates Court given on 16 May 2005 (Huang v University of New South Wales [2005] FMCA 463) is whether the trial judge denied the appellant natural justice or the trial miscarried, on the basis that a fair-minded observer might reasonably have apprehended that his Honour might not bring an impartial mind to the resolution of the proceedings. The potential source of that apprehension is the circumstance in which the trial judge decided, of his own motion, during the case of the fifth respondent, Mr Fuchun Xiao (‘Mr Xiao’), to admit three paragraphs from an affidavit of a witness not called by the first respondent, the University of New South Wales (‘the University’). The appellant has also raised a number of other grounds of appeal which require consideration.

Background

2                     The appellant, who appeared in person before me and before his Honour, is an intelligent and reasonably articulate (although not fluent in English) woman, who is a former student for the degree of Doctor of Philosophy at the University. Mr Xiao was also a student for the degree of Doctor of Philosophy at the University in 1999. In 1999, each of the appellant and Mr Xiao engaged in some part-time work for the University in the course of their studies.

3                     The proceedings below were brought against not only the University and Mr Xiao, but also three other persons, who appear to have had some connection with the University. The evidence reveals that the second respondent was the appellant’s thesis supervisor, that he in turn had some responsibility to the third respondent who was an Associate Professor at the University at the time. I am not clear about the role of the fourth respondent. No relief is sought against the second, third and fourth respondents in this appeal and they did not appear.

Factual Background

4                     The substantive complaints of the appellant were that in about the second semester of 1999 she asked Mr Xiao to show her how to read Chinese newspapers from the internet and that he sexually harassed her, in contravention of the Sex Discrimination Act 1984 (Cth) (‘the Sex Discrimination Act’) by showing her pictures in which a naked girl was said to have postured in a sexy and lustful way on the computer screen.

5                     Next, the appellant asserted that in about 2000, she passed Mr Xiao’s room and saw pornographic images on the computer screen, although she did not enter the room and was not invited to do so. Lastly, she complained that in or about August or September 2001, Mr Xiao provided her with assistance to install Acrobat reader software from the internet onto her computer and in the course of that assistance he sexually harassed her by showing her about three pornographic pictures in which there was a naked man with a naked woman who were ’intending to have sex’. The appellant alleged that on this occasion when she saw the pornographic pictures she was shocked and asked Mr Xiao not to do it but that he showed her other pornographic pictures and she instructed him to leave. Additionally, the appellant asserts that on 3 and 30 August 2004 Mr Xiao victimized her and subjected her to mental distress by verbal abuse, including a threat to kill.

6                     Mr Xiao denied all those claims. The University denied that it was vicariously, or otherwise, liable for Mr Xiao’s conduct. Because both Mr Xiao and the appellant were unrepresented at the hearing, his Honour endeavoured to clarify with each of them, when they were seeking to lead evidence, precisely what material they wished to proffer.

Grounds 13-14 – the nature of the hearing below

7                     On 10 March 2005 his Honour was asked by the appellant to ‘proceed’ separately with the proceedings against Mr Xiao. At that stage Mr Xiao had not filed any affidavits in support of his case notwithstanding the fact that he had been served with the proceedings about 17 months before and, in the interim, had been served with a number of other documents relating to the proceedings. The appellant had wished on that occasion to proceed against Mr Xiao at the hearing the next day. She said she would not then be ready to proceed with the hearing in respect of the other respondents including the University, that the proceedings against them were separate and that she was only ready to proceed against Mr Xiao.

8                     During the discussion between his Honour, Ms Oakley, who appeared at all times for the University, and Mr Xiao, Ms Oakley said that the University was the subject of the same claim as against Mr Xiao. His Honour identified that claim as being made on the basis that the University was vicariously liable for Mr Xiao’s actions. His Honour made clear to the appellant (transcript 10 March 2005 p 14 lines 1-10) that the University was entitled to be a party to the hearing involving Mr Xiao if that were to proceed separately, as was then envisaged.

9                     Ultimately his Honour made directions which vacated the hearing for 11 March 2005, ordered Mr Xiao to file a response to the application against him and any affidavit evidence on which he proposed to rely by 4 April 2005 and fixed the hearing of the matter for 6 April 2005. His Honour indicated from a practical point of view that the matter against the University and the second and third respondents, for whom Ms Oakley appeared, would not be able to go ahead in the April hearing.

No order for separate determination

10                  Regrettably, his Honour did not make an order for the separate determination of the proceeding so far as it related to the appellant’s complaint about Mr Xiao’s conduct and any liability that the University might have had flowing from that conduct. Instead, as his Honour recorded in the judgment ([2005] FMCA 463 at [2]), he heard the claim against Mr Xiao separately on the basis that it was severable from the claims against the other respondents, and was ready to be heard, whereas the other claims were not then ready.

11                  By s 57 of the Federal Magistrates Act 1999 (Cth) (‘the FM Act’) formal defects or irregularities are not to invalidate proceedings in the Federal Magistrates Court unless that court is of opinion that substantial injustice had been caused by the defect or irregularity and it could not be remedied by an order of the Federal Magistrates Court.

12                  The appellant complained that the procedure adopted by his Honour was not what she wanted and that she only wanted his Honour to hear the issues involving Mr Xiao without making any orders. However, I am of opinion that his Honour was entitled to treat the appellant’s request as a request for a separate determination of the issues between her and Mr Xiao, and, so far as it was affected thereby, the University.

13                  In Grounds 13 and 14, the appellant now seeks to have the proceedings involving her, Mr Xiao and the University recombined with her other proceedings. All parties before his Honour appear to have seen the matter involving Mr Xiao as discrete and severable. The appellant sought such a separation. Having achieved what she sought, I do not consider that she should obtain a reversal of that resultant separation on appeal.

14                  It was undesirable to order a separate hearing where issues as to credit were clearly involved in respect of the appellant and, if it called evidence from witnesses, those witnesses of the University who gave evidence. However, it was open to his Honour to order a separate hearing in the exercise of the jurisdiction of the Federal Magistrates Court which included statutory commands to proceed without undue formality and to endeavour to ensure the proceedings were not protracted (see s 42 of the FM Act).

15                  The failure to make an order identifying a separate issue and proceeding upon determination of the informal issue amounted to a formal defect or irregularity which, in my opinion, caused no prejudice in the conduct of the proceedings which were heard by the trial judge on 6 April and decided on 16 May 2005: cp: Australian Security and Commission v Ampolex Limited (1995) 38 NSWLR 504 at 511C-D per Kirby P; Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734 at 753; applying Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 at 735-736. As Lord Denning MR said in the last case:

‘Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice’ ([1967] 2 QB at 735-736)

16                  I am of opinion that his Honour’s failure to order the hearing of a separate issue was an irregularity which was capable of cure within the meaning of s 57 of the FM Act.

17                  However, the order as made by the Federal Magistrates Court at the time judgment was given was that the entire application be dismissed. Whatever other orders may be appropriate it is necessary for the appeal to be allowed so that that order can be set aside and an appropriate separate question framed for determination in accordance with these reasons for judgment.

Ground 4

His Honour tenders evidence himself

18                  The University did not read any affidavit evidence before his Honour. At the conclusion of the appellant’s evidence, the trial judge asked Mr Xiao whether he proposed to rely on his affidavit of 4 April 2005 which led the appellant to argue that the evidence should be rejected. The transcript records what then occurred as follows (transcript 6 April 2005 pp 70 line 13 - 71 line 2):

‘HIS HONOUR: Well, you can test it if you want to but I will receive the affidavit. Now, there was something else that I thought might be relevant. Yes, the affidavit of Carol Kirby filed on 14 January 2005, paragraph 3.

MS OAKLEY: I think it might not be – I don’t think there is an affidavit of Carol Kirby, she is ---

HIS HONOUR: I am sorry, she is simply – it is Sybille Frank.

MS OAKLEY: Sybille Frank, yes.

HIS HONOUR: Yes. In paragraph 3 in her affidavit of 10 January 2005 she refers after some introductory paragraphs to paragraphs 28, 30, and 31 of Ms Huang’s affidavit of 29 October last year. She refers to the written complaint of June 2002 and her investigation. She says:

At no stage during any of these dealings or in any written material lodged by Ms Huang with the university did she raise any allegations against the fifth respondent.

Now, Ms Huang has effectively confirmed that.

MS OAKLEY: She has conceded that, yes.

HIS HONOUR: That establishes the same point, I suppose. I think for completeness I should receive paragraphs 1 to 3 of Sybille Frank’s affidavit of 10 January 2005 for the purposes of today’s proceedings. Now, Ms Huang, did you want to ask Mr Xiao any questions about his affidavit?’ (emphasis added)

19                  Under the FM Act, two of the objects are to enable that court to operate as informally as possible in the exercise of judicial power and to use streamlined procedures (s 3(2)(a) and (b)). Rule 1.03(2) of the Federal Magistrates Court Rules 2001 (Cth) (‘the Rules’) is to the same effect and r 1.03(3) requires that court to apply its rules in accordance with the above objects. Rule 1.03(4) requires the parties to assist the court by avoiding undue delay, expense and technicality. By s 63 of the FM Act a Federal Magistrate may question witnesses in proceedings if the judge is of the opinion that the question is likely to assist in the resolution of a matter in dispute or the expeditious and efficient conduct of the proceedings.

20                  Next, by s 64, the Federal Magistrates Court can take testimony orally or by affidavit and may make directions to that end. A request may be made by a party to the proceedings to have a deponent in an affidavit appear as a witness to be cross-examined, subject to rules of court (ss 64(4) and (5)). If a request is made for the attendance of a person to be cross-examined and he or she does not appear, the court is required to give the matters in the affidavit such weight as it thinks fit in the circumstances (s 64(6)). By r 15.04 the Federal Magistrates Court may of its own motion call any person as a witness in the proceedings and give directions as to examination and cross-examination. The Court also has the power to dispense with the rules under r 1.06 where to do so is in the interest of justice. Rule 1.06(2) provides that if in a proceeding, the Federal Magistrates Court gives a direction or makes an order that is inconsistent with any of the rules, the direction or order of the court prevails in that proceeding.

21                  When his Honour admitted the evidence of Ms Frank, he made no direction or order under s 64(6) or r 15.04. His Honour does not appear to have turned his mind to this issue. (I have not heard argument as to the validity of r 15.04 and will not express any view on that question.)

The power of a judge to call a witness at general law

22                  The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7^th Australian ed) at [17080]-[17100]). In Shaw v The Queen (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen (1952) 85 CLR 365 had held that Titheradge v The Queen (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials:

‘Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.’

That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma (2003) 212 CLR 299 at 309 [29].

23                  In Titheradge v The King (1917) 24 CLR 107 at 116, Barton J said that where the right of a judge to call a witness exists – and R v Apostilides (1984) 154 CLR 563 at 575 [5] accepts that it does in the conduct of a criminal trial – it must be exercised with extreme caution. He continued (24 CLR at 116):

‘In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent.’

Isaacs and Rich JJ said (24 CLR at 118) that the observations of Fletcher Moulton LJ in In re Enoch and Zaretzky Bock & Co’s Arbitration [1910] 1 KB 327 were of general application to the administration of justice both civil and criminal. His Lordship denied the power of a judge to call a witness against the will of a party ([1910] 1 KB at 332, 333; see too per Powell J in Clark Equipment Credit Australia Ltd v Como Factory Pty Ltd (1988) 14 NSWLR 552 at 567F-568A and IF Sheppard, ‘Court Witnesses – A Desirable or Undesirable Encroachment on the Adversary System?’ (1982) 56 ALJ 234 at 235) but accepted that where the parties acquiesced in a witness being called by the judge, a judge may do so provided that the parties have a right to cross-examine.

24                  These cases resulted in it being held that, where a judge impermissibly called a witness, the result of the trial was a miscarriage of justice.

25                  In Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 at 540 Wilcox J expressed the view in obiter dicta, that in a civil action, a trial judge has power to call a witness, even over the opposition of a party, but that the discretion to take such a course should be exercised sparingly and with great care. (See too Wigmore on Evidence (Chadborn Revision) Vol 9 §2483 where the learned author emphatically asserts the right of a judge in a civil case to call a witness.) Wilcox J said this view was consistent with the principle adopted in R v Apostilides (1984) 154 CLR 563 in respect of criminal trials. Unless his Honour meant by the word ‘sparingly’ to encapsulate the concept of the power being exercisable only ‘… in the most exceptional circumstances’ (154 CLR at 575 [5]), I am unable to agree that the power in a civil case may be exercised more freely, absent statutory authority.

26                  Our system of justice involves, fundamentally, an adversarial process in which the court acts as an independent umpire, applying the law to its view of the facts elicited in evidence chosen and adduced by the parties, not the court. Of course, there may be exceptions in civil proceedings, such as the jurisdiction of courts involving the welfare of a child, where the ascertainment of the child’s best interests may not be able to be left solely to adversarial contest, because in that situation each party’s interests are potentially different to, or distinct from, that of the child the subject of the parties’ forensic battle.

27                  So, it is vital to guard against an absolute prohibition of a judge’s power of calling witnesses because some circumstances in which courts exercise jurisdiction are not wholly adversarial. But the power, according to the authorities to which I have referred, exists to prevent, not occasion, a miscarriage of justice which the judge perceives would otherwise occur. Before forming such a view, over the opposition of the parties and, where appropriate, their legal representatives, a trial judge would obviously need to consider whether the conscious choice of the parties not to call the witness properly can be overborne by the court while preserving the appearance and actuality of judicial impartiality. For a judge to use his or her power to override the choice of the parties as to what evidence they will adduce in order that the judge may decide their dispute is a drastic step which must only be available even in civil proceedings ‘… in the most exceptional circumstances’ (R v Apostilides (1984) 154 CLR at 575 [5]). The exercise of such a power removes the court from its usual and necessary position outside, and places it within, the forensic arena (cp: Yuill v Yuill [1945] P 15 at 20).

28                  At the end of the day, if the absence of a witness occurs and this affects the quality of the evidence properly before the court, the result will still be fair as between the parties, if the judge acts on that limited material, even though it may be thought to be unsatisfactory. The latter, but not the former, consequence may be the fault of the parties in their selection of the evidence or it may be that the parties have each decided that the witness would be of no assistance (cp: Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 920H-921C per Lord Roskill; DA Ipp ‘Judicial Intervention in the Trial Process’ (1995) 69 ALJ 365 at 373-375).

29                  In any event, the trial judge in admitting Ms Frank’s evidence, to the extent that he considered the basis of its admissibility at all, did no more than express a view that it was relevant. There was no necessity to admit that evidence. The circumstances of the proceedings were unexceptionable and raised no occasion on which it could be said that it was appropriate, on any of the tests above, to admit Ms Frank’s evidence in the way in which his Honour did.

30                  I am satisfied that Ms Frank’s evidence was not properly received and that in the circumstances there was no basis for the trial judge to have admitted or used Ms Frank’s evidence.

was there an appearance of bias?

31                  The issue assumes increased significance because in his Honour’s reasons for judgment, having referred to the admission of the material from Ms Frank’s affidavit ([2005] FMCA 463 [8]) his Honour considered the allegations made by the appellant on the Briginshaw [v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J] standard ([2005] FMCA 463 at [32]). His Honour noted that required him to have a high degree of satisfaction that the events alleged by the appellant happened. His Honour found as supporting his conclusion that he did not have that high degree of satisfaction. Among other things, he relied on the fact that the appellant had made no complaint about Mr Xiao’s alleged conduct until more than twelve months afterwards although she had been expressly given the opportunity to make a complaint in 2002 ([2005] FMCA 463 at [32]).

32                  A fair-minded observer sitting in the court room might wonder why, when the University was represented, it had not led any evidence from Ms Frank, yet his Honour had gone through the papers and had found an affidavit by her and had then identified parts of it as being ‘relevant’ and as ‘effectively confirm[ing]’ that the appellant had not, in any written material lodged with the University, raised any allegations against Mr Xiao in 2002. By saying ‘I think for completeness I should receive paragraphs 1, 2, 3 of Sybille Frank’s affidavit of 10 January 2005 for the purposes of today’s proceedings’ his Honour was deciding of his own motion to admit material which no party had put before him as her, his or its evidence at the hearing. Ms Frank was not required to be present or to be available for cross-examination.

33                  In Ebner v Official Trustee (2000) 205 CLR 337 at 344-345 [6]-[8] Gleeson CJ, McHugh, Gummow and Hayne JJ said:

‘Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488). That principle gives effect to the requirement that justice should both be done and be seen to be done (R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ), a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.’

34                  A judge, particularly in the discharge of the jurisdiction of the Federal Magistrates Court, may need to consider what documents have been filed by parties in the proceedings upon which they may wish to rely and draw the attention of parties who are unrepresented to material which they may want to consider filing or tendering. However, it is a most unusual, indeed extraordinary, step in contested litigation for a judge to tender of his or her own motion material from an affidavit which a party, who is legally represented in the proceedings, has chosen not to read and to allow that material to go into evidence untested, on the basis that it in effect makes stronger a case against the party adversely affected by the reception of that evidence.

35                  A fair-minded person reasonably might consider that the judge was seeking to add emphasis to the appellant’s failure to make complaints against Mr Xiao and also that the judge had read through all of the affidavit material which by then had been filed by the University in the larger proceedings. As I was informed by Ms Oakley from the bar table, that material included affidavit evidence which had been filed on behalf of the University contradicting the appellant’s claims of sexual harassment by some of the other respondents, and also of plagiarism of her work by the second respondent who was her thesis supervisor.

36                  On the other hand, the only material to which his Honour referred and which his Honour noted in open court as having relevance, is what might be regarded as the relatively anodyne confirmatory material from Ms Frank. His Honour does not refer to any other material to which he had regard.

37                  I have no hesitation in assuming that his Honour set out in his reasons for judgment fully, honestly and accurately all of what he took into account in coming to his decision to dismiss the appellant’s complaint relating to Mr Xiao. Nor is it necessary or appropriate to inquire further into this question for the issue here is relevantly whether what occurred gave rise to the appearance of a possibility of an absence of an impartial mind on the part of his Honour as Callinan J explained in Antoun v The Queen (2006) 224 ALR 51 at 76-77 [81]-[83], Haydon J agreeing at 78 [91]; see too per Gleeson CJ at 57 [22]. But what I, as a judge, or any lawyer for that matter, knows or assumes that a judicial officer referred to or took into account in deciding a matter when regard is had to the judicial officer’s fulfillment of the duty to give reasons for judgment, is one thing. It is quite another thing for a fair-minded lay observer to be precluded from forming a reasonable apprehension that, in the present factual context, the judge might not have brought an impartial mind to the resolution of the dispute. As Brennan, Deane and Gaudron JJ said in Vakauta v Kelly (1989) 167 CLR 568 at 573:

‘An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice.’

38                  I do not consider that any question of waiver of his Honour’s conduct can be imputed to Ms Huang. She was not to know that what his Honour did was extraordinary. Nor did counsel for the University intervene to suggest that what his Honour proposed to do was inappropriate. In Vakauta v Kelly (1989) 167 CLR 568 at 572 Brennan, Deane and Gaudron JJ held that waiver was the consequence of a legally represented party failing to object to judicial conduct reasonably capable of being regarded as conveying an apprehension of bias. Their Honours did not explore the position for an unrepresented party but in Preston v Carmody (1993) 44 FCR 1 at 14 Wilcox J referred to the principle they had identified and said:

‘But the principle to which their Honours referred is not limited to cases where the relevant party is legally represented. It was applied by the New South Wales Court of Appeal in relation to a litigant in person in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 421-422. Where a person is not legally represented or advised, it will always be necessary to consider whether he/she had the knowledge necessary to found waiver.

39                  There may be cases where the judicial conduct complained of may be so obviously questionable that an appellate court could say that the unrepresented party was bound to object then and there rather than chancing to how the ultimate decision may go. But, in most cases, unrepresented parties, however intelligent or worldly, will not have a sufficient familiarity with the practice and procedure involved in litigation to know when a judicial officer has gone potentially too far. Not only do unrepresented parties usually feel the ordinary, but very real, stress and nervousness which being in court generates but they are entitled and are likely to assume that the judicial officer is doing his or her job fairly and according to law. So something which is unusual to a lawyer may not strike an unrepresented party as such. An unrepresented party may think what has occurred is how courts do things, and so not realize immediately that anything legally wrong has occurred, however upsetting the judicial officer’s conduct may be.

40                  So much will depend on the facts of the particular case that further generalized discussion by me is not fruitful. In Vakauta v Kelly (1989) 167 CLR 568 at 571-572, Brennan, Deane and Gaudron JJ considered how far a trial judge could express preconceived views about expert medical witnesses who frequently in the past had given evidence before him. They said (167 CLR at 571-572):

‘On the other hand, there is an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice. In the passage in his judgment in[Re Watson: Ex parte Armstrong (1976) 136 CLR 248 at 294] to which we have referred, Jacobs J pointed to the undoubted fact that "it is confidence in his own integrity which supports [a judge] not only in his judgment but in all his words and conduct". Knowledge of his or her own integrity can sometimes lead a judge to fail to appreciate that particular comments made in the course of a trial may wrongly convey to one or other of the parties to the litigation or to a lay observer an impression of bias. For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.’

41                  Again, this case is different because the material from Ms Frank which the trial judge used confirmed what already appeared to have been established.

42                  This case is not like the circumstances in Gillette Australia Pty Ltd v Energiser Australia Pty Ltd (2002) 193 ALR 629; [2002] FCAFC 223 where the trial judge had erroneously included in his judgment, as having been read and being credible, material from affidavits which, in fact, had never been read in the proceedings. However, as Merkel J, (with whom Heerey J at 193 ALR 635 [29] and Lindgren J at 193 ALR at 636 [32] agreed) said that (193 ALR at 652 [78]:

‘While not every breach of the rules of natural justice invalidates the decision made, once the breach is proved the court should refuse relief only when it is confident that the breach could not have affected the outcome.’

43                  Merkel J then referred to what the High Court had said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146:

‘It is no easy task for a court of appeal to satisfy itself that what appears on its face would have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.’

44                  The University submitted that the objective evidence showed that Ms Frank’s evidence was uncontroversial and therefore did not and could not affect the result of the proceedings. The appellant had conceded in cross-examination that she had not made in her very lengthy complaint to the University, to which Ms Frank’s evidence related, any mention whatever of Mr Xiao (Transcript 6 April 2005 pp 44 line 25 – 45 line 5) and that the first time she had written to the Human Rights and Equal Opportunity Commission in July 2002, the appellant had made no mention of a complaint involving Mr Xiao (Transcript 6 April 2005 pp 48 line 32 – 49 line 22).

45                  Moreover, the appellant agreed that prior to her complaint to the Human Rights and Equal Opportunity Commission of 31 October 2002 she had made no complaint against Mr Xiao relating to being shown a photograph of a naked man and a naked woman in August or September 2001 (Transcript 6 April 2005 pp 52 line 25 – 53 line 14). Accordingly, it was submitted that the admission of the material of Ms Frank’s affidavit did not, as a matter of substance, affect the outcome of the proceedings or create any substantive adverse consequence for the appellant in the proceedings.

46                  As the High Court said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145:

‘The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board ([1957] 2 QB 55 at p 67) , in these terms:

"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

That general principle is, however, subject to an important qualification [...]: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.’

47                  Here the question is not so much whether further information could possibly have made any difference. The question is whether or not the proceedings below crossed the line described in the seminal case of Jones v National Coal Board [1957] 2 QB 55 at 63 by the English Court of Appeal who said:

‘In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.’

48                  Their Lordships continued that Lord Greene MR had explained in Yuill v Yuill [1945] P 15 at 20: ‘… that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations[.] If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict”.’ That was, of course, said in the context in which a judge was not allowed to call witnesses (see Jones v National Coal Board [1957] 2 QB at 64). These considerations may not be entirely apposite for the Federal Magistrates Court if r 15.04 is a valid exercise of the rule-making power. Certainly, as noted above, there will be situations for example (and I do not intend to be exhaustive) in which that court is called upon to exercise its jurisdiction in which it may be necessary or desirable for the court to have information from witnesses, particularly in cases involving the Family Law Act 1975 (Cth) where welfare of a child may be in issue and where the relevant parties before the court may each have interests which the court regards as not properly able fully to inform it of what might be in the overall best interests of the child.

49                  However, in a case like the present, I am of opinion that it was not appropriate for his Honour to have used Ms Frank’s affidavit in any way, although the parts of the affidavit which his Honour used were simply confirmatory of what the appellant herself had accepted in her cross-examination and also of what the objective evidence revealed. As Kirby J remarked in Antoun v The Queen (2006) 224 ALR 51 at 63 [47]:

‘… it is every person’s right to have a trial conducted in accordance with the law. The trial judge here was disqualified because he crossed the line. The trial did not conform to law.’

50                  The fact is that his Honour’s intervention and use of Ms Frank’s affidavit raises more questions for a fair minded observer than it answers. One does not know what, if anything, his Honour discarded in order to assess what he said was relevant to use from the other material in the file. Why did his Honour need to review any of the other material that was not formally before the court placed there in the ordinary way by the parties seeking to have their dispute properly ventilated?

51                  In one sense it may be possible to say that the material used from Ms Frank’s affidavit would have made no difference. In my opinion that material was capable of falling into such a category. However, the evidence of Ms Frank in this case did not assist the appellant’s case at all. At worst it bolstered the case of the University and Mr Xiao as to her lack of complaint and made her case look thinner. There was no need for the evidence of Ms Frank to be called in aid for that purpose, for the very reasons which the University has sought on this appeal to say that the evidence would have made no difference. The trouble is that his Honour saw fit himself to introduce that evidence, after the appellant had given evidence and without any attention to the rules of the court providing for making directions about examination and cross-examination of the witness whose evidence it was.

52                  I am of opinion that a fair-minded person could reasonably have apprehended that his Honour was seeking to assist the respondents’ cases by introducing the evidence. Excessive judicial intervention in proceedings sometimes raises issues of fact and degree as to how far a judge is or is not entitled to go. Thus Wood CJ at CL noted that the line that a trial judge walks when asking questions of a witness is a narrow one (R v Esposito (1998) 45 NSWLR 442 at 472B-C; see too Galea v Galea (1990) 19 NSWLR 263 esp at 280-282 per Kirby ACJ). But the issue here really is whether a fair-minded person could reasonably have apprehended that his Honour’s introduction and use of Ms Frank’s evidence indicated that he was not being impartial.

53                  However, could this have made any difference to the outcome of the trial? Obviously there was material available for his Honour to assess one way or the other as to which witnesses’ accounts he accepted. The objective evidence clearly supported that introduced, irregularly, from Ms Frank. If the appellant’s account of the incident in 1999 had been accepted, I am of opinion that it was capable of being characterized, depending on the facts, as an engagement by Mr Xiao in unwelcome conduct of a sexual nature in relation to the appellant in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the appellant would be offended, humiliated or intimidated within the meaning of s 28A(1) of the Sex Discrimination Act. The character to be attributed to the incident in 2001 likewise may have depended upon the circumstances, although it is less likely to have resulted, had it been left to be taken alone, in a finding of a contravention of s 28A.

54                  As Gaudron and Gummow JJ noted in Re Refugee Tribunal ex parte Aala (2000) 204 CLR 82 at 116-117 [80]-[81] it is sufficient that a denial of natural justice deprives the appellant of the possibility of a successful outcome (applying Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147). Their Honours went on to quote with approval from Megarry J in John v Rees [1970] Ch 345 at 402:

‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’

55                  What happened in the present case was not simply a rejection of the submission or a rejection of evidence or a statement to an applicant that material would be taken into account, which was not. By itself, Ms Frank’s evidence admitted by his Honour would not have altered the outcome. It is the fact that his Honour actively intervened in the proceedings by tendering that evidence in circumstances which did not appear to warrant it which gives an indication that a fair-minded observer of the proceedings could reasonably have apprehended that his Honour was seeking to make the case against the appellant by assisting those to whom she was opposed.

56                  I have anxiously given consideration as to whether it could be said that his Honour’s conduct could have made no difference (see e.g. Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 444 [28]-[29]; [2003] HCA 60) but I have come to the conclusion the course his Honour took is so irregular that the breach of the rules of procedural fairness cannot be regarded as not possibly having affected the outcome. A different judicial officer may have taken a different view as to the appellant’s credibility and that of Mr Xiao and if that had happened, the outcome may have been different.

Other grounds of appeal

Ground 1

Mr Xiao’s affidavit came late

57                  Mr Xiao did not file an affidavit or a response to the application for over 17 months. The appellant argued that because Mr Xiao had failed to file an affidavit in the 17 months preceding his actually doing so on 4 April 2005, that somehow precluded his Honour from allowing the affidavit to be read by Mr Xiao in his defence at the trial. The appellant said that this was unfair to her in some way. However, the affidavit effectively denied what the appellant’s version of events was in relation to the critical incidents, the subject of her claim. She was in a position to cross-examine Mr Xiao about those matters and she did so. His Honour made no error in admitting the affidavit to evidence. The appellant did not ask for an adjournment or claim that she was prejudiced so that she was not able effectively to conduct her case by reason of the late service. In those circumstances, there is no substance in this ground of appeal and I would dismiss it.

Ground 2

Did the University take over Mr Xiao’s defence?

58                  The appellant gave evidence and was cross-examined by Ms Oakley, but not by Mr Xiao. It is obvious from the transcript that Ms Oakley used the contents of Mr Xiao’s affidavit of 4 April 2005, in which he substantively denied the allegations made by the appellant, as a basis for cross-examination. The appellant interpreted Ms Oakley’s conduct, as counsel for the University, as being, in some way, tantamount to the University taking over Mr Xiao’s defence. I am of opinion there is no substance in this ground of appeal. The University was entitled to defend its own interests, particularly where it was claimed that it would be vicariously liable for whatever might be found to have occurred between Mr Xiao and the appellant were it to give rise to liability under the Sex Discrimination Act. I would dismiss this ground of appeal.

Ground 3

The appellant’s evidence was not accepted

59                  Effectively the appellant argues that because her oral and affidavit evidence at the hearing was not found to have been what was the correct version of events, that his Honour’s decision should be overturned. It was for his Honour to form a view as to which witnesses’ evidence, whether in whole or in part, he accepted, having seen or heard them. His Honour gave reasons for preferring Mr Xiao’s evidence to that of the appellant and I can discern no error in those reasons, nor has the appellant demonstrated any such error. I see no reason for disturbing his Honour’s conclusion on credibility and reliability of the witnesses based on my review in exercising the appellate jurisdiction of the court of the record of the trial (Fox v Percy (2003) 214 CLR 118 at 125-129 [22]-[31]; CSR Ltd v Della Maddalena (2006) 224 ALR 1 at 6-9 [13]-[24] per Kirby J, Gleeson CJ agreeing at 3 [1]).

60                  Quintessentially, the issue at the trial was which of two witnesses’ conflicting accounts should be preferred. The ability of his Honour to see and hear the witnesses, form an assessment of their reliability and veracity, and to then draw conclusions based on the whole of the material properly before him cannot be gainsaid in a case such as this. There are no incontrovertible facts or glaringly improbable conclusions arrived at by his Honour having regard to my review of the record of the trial. I would dismiss this ground of appeal.

Grounds 7, 8, 9, 11 and 12

61                  These grounds raised the question whether Mr Xiao was dishonest and lied in his affidavit and at the hearing and challenge his Honour’s conclusions as to credibility and reliability of witnesses as to whether or not the incidents complained of occurred. But these grounds elaborate but do not advance the fundamental challenge addressed in relation to ground 3. For example, ground 8 asserts that there was evidence to support that there was no dispute about the facts between Mr Xiao and the appellant as to what had occurred in respect of each of the three complaints. That is patently insupportable on the material before his Honour and affords no basis for appellate intervention. The appellant has a tendency to reiterate many times a point, and these grounds appear to do just that. There is no substance in any of them and I dismiss them.

Ground 5 - Mr Park’s evidence

62                  The appellant complained that Mr Park was not available at the hearing and that the University had placed some obstruction on his being called. The fact that he was not available for cross-examination was described by his Honour in the transcript (6 April 2005 at p 14 lines 28-30):

‘However, because he is not available for cross examination I am going to give the affidavit minimal weight. In other words if the affidavit is contradicted by more reliable evidence then I will prefer that other evidence, so that affidavit is before me.’

63                  Mr Park’s evidence was that one day in about August or September 2001 the appellant came into his office and asked him to help her install software with a reading function on to her computer but that he said he did not know how to do it. He said that the appellant turned to ask another student, a Mr Kim, for help and that Mr Kim said that he did not know how to do it but that Mr Xiao might. Mr Park said that the appellant went to the other side of the office and talked to Mr Xiao who then followed the appellant to her office to provide her with assistance. Next, Mr Park says that on 11 November 2003, the appellant came to see him about the matter and asked him whether he remembered what had happened to which he responded ‘Yes’ (see Appeal Book C 391-392).

64                  I am of opinion that this evidence could not have any bearing on the outcome of the case. While it is correct that Mr Xiao said that he could not recall providing assistance to the appellant in 2001, his Honour noted that the affidavit of Mr Park provided some corroboration of the appellant’s assertion ([2005] FMCA 463 [28]). Thus his Honour took into account Mr Park’s affidavit.

65                  The affidavit was not contradicted by Mr Xiao or other evidence. Mr Xiao could only say that he did not remember providing assistance to the appellant in 2001 [29]. As his Honour pointed out, if Mr Xiao had sexually harassed the appellant in 1999 by showing her material which she found to be sexually harassing of her, it is hard to understand why the appellant asked him for further assistance in 2001 [27]. His Honour found that it was possible that Mr Xiao did show the appellant a pornographic image in 2001 but did not find on the Briginshaw standard that he was satisfied that this did in fact occur [32].

66                  And, as his Honour found:

‘If it did occur (and I make no finding that it did) a reasonable person would not have anticipated that [the appellant], having already observed Mr Xiao looking at such images and, on her account, having been shown erotic images some two years before and having no complaint about it, would have been offended, humiliated or intimidated by being shown a further erotic image.’ [32]

67                  Not only do I not perceive his Honour to have made any error in this respect, I find his Honour’s reasons persuasive, but for the breach of the rules of procedural fairness which I have found above, and I make the same finding. It is difficult to believe that a person who claims to have been sexually harassed by being shown pornographic images two years beforehand, would voluntarily go with the alleged harasser, no resolution having occurred in the meantime between them, to operate a computer again. When what was being sought was assistance in installing software from the internet to read or download material from the internet, the likelihood that the internet would be accessed by the alleged harasser was overwhelming. And, if what had occurred previously had in truth been harassment, it is unlikely that the victim would ask the harasser for further help. However, I make no finding on this aspect of the ground of appeal.

68                  The complaint in relation to Mr Park was identified by the appellant as including the fact that on 5 April 2005 she requested him to attend the hearing to which he responded that he could not help in the court and tried to have her see the third respondent, Professor Winder, for approval to attend the court hearing (see the appellant’s submissions pars 188-190).

69                  What this amounts to is that the appellant did not serve a subpoena on Mr Park in advance of the hearing requiring him to attend to give evidence. Had she done so, this issue could not have arisen. The lack of knowledge of procedure which the appellant advances as a basis for her being able to seek relief on this ground and other grounds, is no basis at all for seeking relief. Moreover, it is quite unreasonable for the appellant to have only sought to ask Mr Park to attend court the day before the hearing. Had she made the request well in advance of the hearing so that he could have organized his affairs, she may have then discovered his unwillingness and have been able to seek a subpoena in time. In my opinion this ground is without merit and ought to be dismissed.

Ground 6

70                  The appellant sought to rely upon evidence from a Ms Yi Wang as to an allegedly abusive series of remarks made by Mr Xiao after he had been served with documents in August 2004 relating to a hearing before the Federal Magistrates Court on 16 September 2004.

71                  His Honour refused to accept Ms Wang’s affidavit into evidence because first, she was not available for cross-examination and secondly, it was irrelevant to the issue of sexual harassment which his Honour had to decide. That was because the allegation of threatening behaviour by Mr Xiao, said by the appellant to amount to victimization, related to events which allegedly had occurred well after the termination of the complaint by the Human Rights and Equal Opportunity Commission. His Honour said that the allegations appeared to extend to unnecessary and probably inappropriate attempts at service upon Mr Xiao by the appellant and Ms Wang ([2005] FMCA 463 at [7]).

72                  The reason why Ms Wang was not available for cross-examination is that she had been in Singapore when, again, on 5 April 2005 the appellant sought to have her attend for cross-examination (see appellant’s submissions par 194). For the same reasons as I gave in respect of Mr Park, this part of the basis of the ground of appeal is without substance and should be dismissed.

73                  The appellant put to his Honour that Ms Wang’s evidence was relevant on two bases, first because it went to victimization or a threat to kill her (Transcript 6 April 2005 p 11 lines 1-5) and secondly because it amounted to conduct by Mr Xiao which sought to intimidate her from prosecuting her proceedings in the court (Transcript 6 April 2005 p 12 line 13, p 13 line 4). I am of opinion that neither basis made the affidavit admissible as evidence in chief. The circumstances in which the alleged incident occurred involved repeated service by persons on behalf of the appellant on Mr Xiao such as might provoke a fairly tempestuous reaction. That was the very kind of reaction which Mr Xiao is alleged to have exhibited. In my opinion it was open to his Honour to reject the evidence on the basis that the evidence, having regard to the context that Mr Xiao responded to being served at his home with more documents, was incapable of being evidence demonstrating an attempt to victimize or intimidate the appellant from bringing her case.

74                  Moreover, Ms Wang’s evidence was irrelevant to the issues before his Honour. No complaint had been made to the Human Rights and Equal Opportunity Commission by the appellant in respect of the alleged behaviour of Mr Xiao to which Ms Wang sought to depose. The jurisdictional basis provided by s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), requiring a complaint to have been terminated by the President and for the President to have given a notice to any person in relation to the termination was not satisfied. The appellant’s complaint to the Commission had been terminated on 28 July 2003, over a year before the alleged events to which Ms Wang deposed.

75                  In my opinion there is no substance in this ground and it should be dismissed. To the extent that ground 14 also seeks to have this claim of ‘victimization’ heard with other proceedings, it must also fail for the same reasons.

Ground 15

76                  The appellant complains that affidavits she filed on 19 April 2005 and 5 May 2005 were not referred to in his Honour’s judgment given on 16 May 2005. That is hardly surprising, since the hearing finished on 6 April 2005 and no leave was given to file further evidence, nor was I referred to any motion by which leave was sought. The appellant did not address any oral argument on this point. In her affidavit of 4 July 2005, which is to be treated as a submission, the appellant describes the affidavit of 19 April 2005 as dealing with the issue of the vicarious liability and ‘students’ and employees’ conducts’. The issue of the University being vicariously liable for any conduct of Mr Xiao whether as an employee of the University together with the appellant or as a student has no relevance if, as his Honour found, the alleged incidents did not occur or could not have amounted to an harassment.

77                  The second affidavit of 5 May 2005 is described in the affidavit/submissions of 4 July 2005 as relating to ‘my severe suffering, chemistry and employment backgrounds, losses, costs’. Again, this material was not relevant in the event that the proceedings were dismissed in relation to the alleged conduct of Mr Xiao. I can see no error, even if it were permissible, without leave, to file and rely upon such material after judgment had been reserved for permitting the appellant to rely upon this matter. The appellant did not refer to any motion she put before his Honour to reopen the proceedings. Just as it is impermissible to file further submissions (NT Power Generation Pty Limited v Power and Water Authority (2004) 219 CLR 90 at 159 [192]per McHugh ACJ, Gummow, Callinan and Heydon JJ) without the leave of the court after the hearing has concluded, further evidence cannot be filed without leave. The appellant advanced no basis as to why she should have been permitted to reopen and I would accordingly dismiss this ground of appeal.

Conclusion

78                  I have reluctantly come to the conclusion that the appeal should be allowed because of the departure from the appearance of a trial conducted in accordance with law by his Honour’s conduct in the introduction of and use of Ms Frank’s affidavit.

Associate:

Dated: 25 May 2006