FEDERAL COURT OF AUSTRALIA

Huang v University of New South Wales [2008] FCA 1930

DISCRIMINATION – complaints of sexual harassment, racial discrimination and disability discrimination – regard to be had to all circumstances in assessing discrimination claims – claims not made out on evidence – whether sufficient time allowed for cross-examination of witnesses – extensive written material filed – ample opportunity afforded – no procedural unfairness

Disability Discrimination Act 1992 (Cth), ss 5, 6, 42

Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 46PH, 46PO

Racial Discrimination Act 1975 (Cth), ss 9, 18A, 27

Sex Discrimination Act 1984 (Cth), ss 28A, 94  

AB v Adult Multicultural Education Services [2006] VCAT 1862 applied

Gauci v Kennedy [2007] FCA 1051 referred to

Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 followed

Huang v University of New South Wales & Ors [2008] FMCA 11 referred to

Obieta v New South Wales Department of Education and Training [2007] FCA 86 followed

HONG CUI HUANG v UNIVERSITY OF NEW SOUTH WALES, BOBAN MARKOVIC AND CHRIS WINDER

NSD 283 of 2008

BENNETT J
18 DECEMBER 2008
sydney

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant, Ms Huang, appeals from a decision of the Federal Magistrates Court dismissing her application against the first, second and third respondents: Huang v University of New South Wales & Ors [2008] FMCA 11.  The amended notice of appeal raises 61 grounds of appeal and extends to some hundreds of pages.  Ms Huang has also filed submissions and an ‘Issues Paper’.  This is in addition to affidavit material filed in the appeal together with the extensive factual material that was before Driver FM.  Despite my urging, Ms Huang seemed unable to reduce or simplify her contentions in any meaningful way.  There was a lack of focus and much in the way of irrelevant and repetitive material that made it difficult to ascertain matters relevant to this appeal.

2                     Federal Magistrate Driver expressed the difficulties he had in identifying the real issues in the mass of material filed and presented by Ms Huang.  It is apparent that the case proceeded in the Federal Magistrates Court (as in this Court) in a way which was, as his Honour noted, ‘exceptionally protracted, with far more material filed than was necessary or useful’ (at [63]).

3                     I referred the matter to a Registrar of the Court for a case management conference in an attempt to isolate the issues in the appeal.  By consent the following issues were elucidated:

Issue 1

Whether His Honour erred in not giving appropriate weight to the evidence submitted in the proceedings.

Issue 2

Whether His Honour erred in not taking into account crucial evidence and took into account submissions that misinterpreted the evidence or were contrary to the relevant facts.

Issue 3

Whether His Honour did not give sufficient time for the appellant to complete her cross-examination of the respondents’ witnesses.

4                     At the hearing of the appeal Ms Huang seemed to have great difficulty in confining herself to or directing her submissions to the issues that had been identified.  She appeared in person and made her submissions in English.  A Cantonese interpreter was present at all times to assist Ms Huang and to ensure that she understood everything that was being said and that she was able to present her submissions without the difficulty of not being able to think of a word or an expression.

5                     Like Driver FM, I have addressed the issues that I have discerned from the material and submissions advanced by Ms Huang; I have also had the advantage of the Federal Magistrate’s reasons and summary of the evidence before him.

6                     The nature of Ms Huang’s complaints and the factual background are well set out in the Federal Magistrate’s reasons for judgment.  As an introduction and background, His Honour explained:

1.                  Hong Cui Huang is a former PhD student at the University of New South Wales (“the University”). She did not obtain her degree and holds the University and Dr Boban Markovic (her supervisor) and Professor Chris Winder (her co-supervisor) responsible. Ms Huang has applied to the Court under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) seeking compensation in relation to asserted sex, racial and disability discrimination which she believes frustrated her studies. The documentation filed by Ms Huang in support of the application is voluminous. Essentially, however, Ms Huang complains of sexual harassment in 1999 by Professor Winder and by Dr Markovic and alleges inappropriate comments by Dr Markovic in 2001. Ms Huang also makes sexual harassment allegations against two other persons who are not the subject of this present proceeding.

2.                  The application was amended in 2004 in order to add allegations of racial discrimination and disability discrimination in relation to the cancellation of Ms Huang’s PhD enrolment. The racial discrimination is said to stem from Ms Huang’s limited command of the English language. The disability discrimination is said to be based upon Ms Huang’s asserted anxiety and depression.

3.                  Ms Huang made two relevant complaints to HREOC. The first complaint (of sexual harassment) was terminated by a delegate of the President of HREOC on 28 July 2003 pursuant to s.46PH of the HREOC Act. The complaint of sexual harassment against Dr Markovic was terminated on the basis that there was no reasonable prospect of a successful conciliation in relation to the alleged events in 2001 and in relation to the balance, the complaint was made more than 12 months after the alleged events took place. The complaint of sexual harassment by Professor Winder was terminated on the basis that the events took place more than 12 months before the complaint was made.

4.                  The second termination was made by a delegate of the President on 26 May 2004. This related to the complaints of racial discrimination and disability discrimination. The notice was issued pursuant to s.46PH of the HREOC Act on the basis that the complaints related to alleged events occurring more than 12 months before the complaints were made.

5.                  Ms Huang also alleged victimisation as a result of complaining of sexual harassment and also because of her complaints of racial and disability discrimination. [Federal Magistrate Driver] ruled that [he] had no jurisdiction to entertain the application insofar as it was based on the victimisation allegations [Huang v University of New South Wales & Ors (No 2) [2006] FMCA 220]. However, [Federal Magistrate Driver] modified that ruling on 5 June 2006 upon the basis that Ms Huang had referred to alleged victimisation in her first complaint to HREOC, and, although HREOC had declined to accept a complaint of victimisation in later correspondence, Ms Huang was free to put a different legal characterisation on her complaint (which was terminated) than had been put on it by HREOC. [Federal Magistrate Driver] confirmed that [he] could not consider allegations of victimisation which post date the termination of the complaint.

6.                  The respondents deny any sexual harassment and deny any unlawful discrimination or victimisation.

7.                  Ms Huang gives extremely detailed particulars of her claims in a statement of particulars filed on 29 October 2004. She amended this statement by a statement of amended particulars filed in court by leave on 13 February 2006. Ms Huang relies upon ss.28A, 28F, 106 and 21(2) of the Sex Discrimination Act 1984 (Cth) (“the SDA”) in relation to the sexual harassment allegations.

8.                  Ms Huang asserts direct sex discrimination contrary to ss.5(1), 21(2)(a)(c) and 106 of the SDA by the University and Dr Markovic.

9.                  Ms Huang alleges direct disability discrimination by the University and Professor Winder contrary to ss.5(1), 10, 11 and 123 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). Ms Huang also alleges indirect disability discrimination by Professor Winder and Dr Markovic contrary to ss.6 and 123 of the DDA and asserts liability by all three respondents.

10.              Ms Huang alleges indirect racial discrimination contrary to ss.9(1A), 18 and 18A of the Racial Discrimination Act 1975(Cth) (“the RDA”).

7                     Federal Magistrate Driver largely adopted the summary of the factual history of the parties’ dealings as prepared by the respondents.  I shall refer to those factual findings which, in terms of the chronological history of the relationship between Ms Huang and the respondents, are not really in dispute.  As will become clear, some matters are given different emphasis in the appeal.

8                     The alleged discrimination and harassment took place in relation to Ms Huang’s enrolment as a PhD candidate at the University of New South Wales (‘the University’) in 2002.  Between 1995 and 1997 she had been enrolled as a candidate for a Master of Environmental Studies degree by course work.  The second respondent (Dr Markovic) supervised a research project that Ms Huang undertook as part of that degree.  It is not in dispute that her Masters Degree work was considered satisfactory.  The respondents concede that Ms Huang was awarded a scholarship in 1999 based upon her Masters work and that Dr Markovic supported her application for a scholarship in 2000.  In letters of support Dr Markovic said that Ms Huang was in the top 15% of students, based on a course work master’s research project for which she received a grade of 80%.  Clearly, she was acceptable and was accepted as a PhD candidate.  Ms Huang commenced her PhD candidature in 1999 and was awarded a one year scholarship.  Her co-supervisor was the third respondent, Professor Winder.

9                     Two matters are of central importance to Ms Huang’s assertions: the progress of her PhD and the failure by Dr Markovic and Professor Winder to recommend her re-enrolment in that course in 2001.  Ms Huang alleges that her progress was satisfactory.  Her central contention is that the cause of the recommendation that she not be permitted to re-enrol was her failure to respond to the sexual advances of Dr Markovic and Professor Winder.  I shall return to the nature of that complaint.

The factual findings by the Federal Magistrate

10                  Federal Magistrate Driver substantially adopted the respondents’ summary of the factual material as to the dealings between the parties leading to the complaints by Ms Huang.  I do not propose to set them out in full.  However, some of the matters are worth repeating:

·                    After Ms Huang had enrolled as a full-time candidate in 2001, a formal review of her progress was undertaken on 26 March 2001.  Her progress was determined to be unsatisfactory specifically because she had not collated a literature review or commenced laboratory research work.  The literature review, statement of research question and research plan had not been completed by June 2001.

·                    Dr Markovic encouraged Ms Huang to consult Student Counselling Services and to seek medical help after she failed to complete the literature review by July.  He extended the date of the submission of that review and the commencement of training to 1 August 2001.

·                    Ms Huang was asked to attend for laboratory training on 17 July 2001.  She did attend but the results were not good and she requested that her training be repeated.  Dr Markovic continued to encourage Ms Huang to seek assistance from Student Counselling Services and the Student Medical Centre to deal with any personal and other health issues she might have, but also advised her that she had to make significant progress if she wished to be allowed to re-enrol in 2002.  He warned her that if a suitable review of the literature had not been submitted and significant research begun by 1 September 2001 he would not be recommending re-enrolment in 2002.

·                    A literature review was finally submitted to Professor Winder and Dr Markovic on 28 September 2001 but was considered well below the minimum standard expected of a student in a second year of study for a PhD.  The draft was returned to her with Professor Winder’s annotations and she was requested to re-submit it by the end of November.  The literature review was re-submitted on 30 November 2001 and both Dr Markovic and Professor Winder provided comments.  Neither thought that the submitted work was of the requisite standard.  It was made clear to Ms Huang by Dr Markovic and Professor Winder that she should submit an updated literature review and research plan for evaluation prior to any enrolment in 2002.  An annual research review meeting was scheduled for Ms Huang on 25 January 2002.  She did not attend.  She sent a medical certificate saying she was unfit to work for the period 22 to 30 January because of anxiety and chronic back pain.  Another draft research plan, submitted in late February 2002, was considered inadequate by Professor Winder.  She submitted a final research plan but did not submit a revised literature review prior to the enrolment date for 2002.  Dr Markovic recommended that she not be enrolled in further research study.  Professor Winder advised Ms Huang that he would be recommending to the Higher Degree Committee of the faculty that her candidature in the school’s research programme be terminated forthwith.

·                    The Higher Degree Committee determined on 11 June 2002 that Ms Huang should show cause why her enrolment should not be cancelled in response to the school’s determination that her progress was unsatisfactory.  Ms Huang’s complaint, the same as that attached to her complaint to the Human Rights and Equal Opportunity Commission (‘HREOC’), was considered as part of her show cause response.  Ms Huang was given leave for session 1 of 2002.  On 16 July 2002 the Higher Degree Committee determined that Ms Huang’s enrolment as a PhD candidate should be cancelled.

·                    Ms Huang exercised her right of appeal from the decision to cancel her PhD candidature.  In October 2002 the Appeal Sub-committee of the Academic Board upheld her appeal on the grounds that there was an error of fact relating to her enrolment as presented to the Higher Degree Committee, that there was a lack of documentation on Ms Huang’s medical condition and the degree to which this had disrupted her research, and that she may have received mixed signals as to her progress from the support that had been given by her supervisors for a scholarship.  On 10 March 2003, Ms Huang was asked by the Deputy President of the Academic Board to consider whether her current situation was such that she could commit herself fully and unequivocally to the pursuit of her research and what supervision arrangement she envisaged, and asked to advise them of her response by 7 April 2003.

·                    Ms Huang did not seek to and has not sought to re-enrol at the University.

·                    Ms Huang also made allegations of plagiarism and fraud against Dr Markovic.  While these allegations were found not to be supported after investigation by the University, the investigation found fault on the part of Dr Markovic as a supervisor and that he had breached the University’s code of conduct in failing to acknowledge the contribution of his students to a paper that he presented.  Questions were raised about the level of research training undertaken in Dr Markovic’s laboratory.

11                  Ms Huang contends that the Federal Magistrate erred in reaching the conclusions that he did.

The Course of the PhD

12                  Ms Huang has referred me to a number of documents said to support her assertion that her work was satisfactory and that there was no reason for her supervisors’ lack of support for her doctorate other than the sexual advances made and rebuffed.

13                  The written material supports the evidence of Dr Markovic and Professor Winder before Driver FM and does not support Ms Huang’s assertions.  It is apparent that Ms Huang’s progress in her PhD was far from satisfactory to her supervisors.

14                  Ms Huang commenced her PhD work in 1999.  By late 1999 she had not submitted either her research proposal or a literature review, despite being requested to do so.  In August 1999 Ms Huang suffered an injury in an accident.  She withdrew her enrolment for 2000 and re-enrolled as a full-time candidate in January 2001.  Later that month, she changed her enrolment to part-time.  In October 2000 a progress review had been conducted by Dr Markovic.  Between February 2001 and June 2001, Dr Markovic asked Ms Huang to submit a literature review together with a statement of her research question and a project plan.  I will concentrate on the literature review.  The due date for the submission of that review was extended to 1 August 2001.  The correspondence shows that Dr Markovic not only repeatedly requested Ms Huang to concentrate on her literature review throughout 2001 but also warned her that if she could not provide it he could not recommend her re-enrolment.  Dr Markovic and Professor Winder encouraged her to persist and complete the necessary review and warned her of the consequences if she failed to do so.

15                  Ms Huang submitted the first draft literature review on 28 September 2001.  On 8 October Professor Winder returned it to her with annotations and comments and asked her to submit a revised draft by the end of November 2001, as part of her annual review.

16                  In his response, Professor Winder outlined in some detail some of the problems with that document before saying that it ‘falls well below any minimal standard that I would expect as a literature review from a student in their second year of study’.

17                  He returned it to her with annotations and expressed the hope that she would be able to revise it to a more acceptable standard.  He then “formally” advised her that the next draft should be submitted by the end of November 2001, as part of her 2001 annual review.

18                  Throughout this period, as is evident from the correspondence, Dr Markovic encouraged Ms Huang and also advised her to consult the Student Counselling Service if, as she said, her private concerns were affecting her work and, in particular, her ability to complete laboratory training.  He also urged her to seek medical help.

19                  In November 2001, Ms Huang contacted the University’s Post Graduate Board.  Professor Winder responded to queries raised by the Post Graduate Board about her.  In summary he said: 

… Ms Huang remains a problem research student at this School.  Recently I had an opportunity to assess her overdue initial literature survey, and informed her that it was of very low quality and that I had doubts she had the necessary ability to continue in our PhD program…

I have also discussed this matter informally over the past year with Dr Boban Markovic, Ms Huang’s supervisor.  His is of a similar opinion to me in that he considers Ms Huang’s progress has been slow and also that in some instances; she has demonstrated a lack of ability in dealing with technical matters.  …

20                  On 13 November Ms Huang re-submitted her literature review and on 31 December Dr Markovic provided his comments.  Professor Winder provided his comments on 3 January 2002.  He expressed the view that it was still not ‘up to the necessary standard’ and gave reasons for that view.  He returned the document with annotations containing specific comments from Dr Markovic.  Professor Winder also informed Ms Huang that Dr Markovic was reluctant to let her continue with her research project until she could provide a detailed plan of how she would complete a literature review of adequate standard and a clear work plan with target dates and details of how she would complete her research work.  He informed her that it would be impossible for the school to allow her to enrol in 2002 without Dr Markovic’s approval.  Professor Winder also expressed the view that even if she were able to get Dr Markovic’s approval to re-enrol, he would recommend to the faculty Higher Degree Committee that any continued enrolment from 2002 should be at the MSc level.  Ms Huang clearly did not accept those views at the time and maintains that she had not done anything wrong and that her research progress was reasonable.  She asked Dr Markovic for his assistance in finding a way for her to finish her PhD programme, if necessary with another supervisor, and expressed her thanks to him.

21                  The documentary evidence also refers to difficulties with Ms Huang’s ability to continue with her research project and submit a work plan.  It was agreed that Ms Huang would submit not only the updated literature review but also a research plan by the beginning of first session of 2002 so that they could be evaluated prior to the 2002 enrolment.  Ms Huang did not attend an annual research review meeting scheduled for 25 January but submitted a medical certificate on 30 January saying that she was medically unfit to attend work for the period 22 to 30 January because of anxiety and chronic back pain.

22                  In February 2002, Ms Huang submitted a draft research plan that she prepared with the help of Ms Leonte and Ms Gardner.  Professor Winder considered it inadequate and she was asked to finalise the plan by 4 March so that it could be assessed.  Ms Huang asked for her personal problems to be taken into account in that assessment.

23                  On 25 February 2002 Professor Winder had written to Ms Huang confirming that she had had two months from early January to address the points made in Professor Winder’s earlier letter of 3 January.  Professor Winder acknowledged that Ms Huang had been distracted looking for alternative supervisors, however he noted that this should not have stopped her from working to clear up the inadequacies in her literature review and the development of a realistic research plan.  Professor Winder confirmed that even if the documents were available by the beginning of Session 1, 2002 and they were evaluated as being adequate for re‑enrolment purposes, he would still recommend to the Faculty of Science Higher Degree Committee that any contingent enrolment from 2002 would be at the MSc level.

24                  In March 2002 Dr Markovic and Professor Winder advised Ms Huang that they regarded her research plan as inadequate.  The problems identified by her supervisors were a failure to reach the necessary standard in the literature review, a lack of depth of analysis, poor understanding and language problems.

25                  In a letter dated 27 February 2002 Professor Winder commented on Ms Huang’s draft research plan for her PhD research for 2002.  He commented not only on her lack of writing skills and ability to write in English but also expressed his concern about ‘the lack of depth of analysis and by the implicit lack of progress.  For example, you made no mention of the experiments you have completed this far, or their results to date’.  The criticism was not limited to her English skills.  Professor Winder said that he remained ‘sceptical that you understand the level of analytical rigour and critical synthesis that is required in research of this nature.  Further Dr Markovic considers your understanding of a technical basis of your proposed research is poor, and insufficient for a doctoral project’.

26                  Professor Winder said that ‘it would be unfair to you to allow you to persist in carrying out research here at the School of Safety Science, because you lack the requisite technical, analytical and critical skills for doctoral research’.  He said that he would be recommending that her candidature be terminated forthwith, meaning that the final date of her enrolment from Session 2, 2001 was 1 March 2001.

27                  On 22 March 2002, Ms Huang made an allegation of sexual harassment against her supervisors for the first time.

28                  The correspondence at the time contains numerous comments about Ms Huang’s lack of progress on her research project and literature review.  It also indicates a measure of concern by Professor Winder and Dr Markovic about Ms Huang’s ability to cope with the stress that she was experiencing.  The supervisors encouraged her to overcome her problems and continue working on her project.  Professor Winder also suggested that Ms Huang consider whether to continue her involvement in a PhD programme and he suggested on 30 September 2001 that, as an alternative, she could transfer to the less demanding MSc.  Ms Huang’s general reply was to apologise for delays in submitting a literature review and to affirm her commitment to her PhD.  For example, in her response of 28 September 2001, she confirmed in letters to both Dr Markovic and Professor Winder that she wished to complete the project.  There was no suggestion of any personal difficulty on her part with either of those two supervisors.

29                  Having set out the relevant facts of the matter, it is convenient to move to Ms Huang’s complaints.  As is clear from what follows, the chronology of events will prove important in assessing Ms Huang’s claims of discrimination and harassment of various types.

30                  Federal Magistrate Driver identified the key allegations at [74]:

·                    allegations of sexual harassment against Professor Winder and Dr Markovic;

·                    an allegation of racial discrimination based on English proficiency;

·                    a complaint that Ms Huang was treated in some unspecified manner less favourably on the grounds of a disability; and

·                    victimisation.

31                  His Honour observed that a number of additional allegations against the respondents were not relevant to the issues before the Court, which were limited to the subject matter of the complaint to HREOC that had been terminated (see s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) (‘the HREOC Act’)).

Sexual Harassment

32                  Section 28A of the Sex Discrimination Act 1984 (Cth) provides for the meaning of sexual harassment:

(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.

33                  As Driver FM noted at [77], Ms Huang did not allege to HREOC that either Dr Markovic or Professor Winder made an unwelcome sexual advance or requested sexual favours.  His Honour characterised her allegations as being that each of them engaged in other unwelcome conduct of a sexual nature in breach of s 28A(1)(b) of the Sex Discrimination Act.

34                  The complaints of sexual harassment against Dr Markovic and Professor Winder set out by Driver FM at paragraph [65] are:

(a)       that in 1999 Dr Markovic when speaking to students in the laboratory raised both his hands ‘likely to catch me’;

(b)       that in about September 2001 while Ms Huang was training with two other students Dr Markovic said ‘she has not been married but she needs sex. She is over 30 and near 40 but still has pimples in her face’;

…

(d)       that in the second semester of 1999 Professor Winder touched her hip in a passageway when a door opened.

35                  In the appeal Ms Huang seemed to suggest that the described events represented requested sexual favours.  It is clear from the various matters put by Ms Huang in the appeal that she considered virtually every contact and written exchange with either of her supervisors to be sexual in nature.  She does not point to any specific action other than those set out by Driver FM to which I shall return, but construes the correspondence between herself and Dr Markovic and Professor Winder as filled with sexual innuendo.  One example will suffice. In an email written in September 1999, Dr Markovic asked Ms Huang whether she had made any useful contact at an academic conference she had attended.  Ms Huang now contends that that question ought to be construed as an inappropriate and invasive question about whether she had met a boyfriend, or about the state of her personal life more generally.  In my view the correspondence simply does not lend itself to such a construction or understanding.  It is open to question whether Ms Huang herself would have read it in such a way when she initially received it.  If so, there was no such indication at the time.

Legal Principles to be Applied

36                  Ms Huang does not contend that the Federal Magistrate was in error in his summary of the principles applicable to conduct in breach of s 28A(1)(b).  His Honour recognised the breadth of actions that can constitute conduct of a sexual nature and that single incident could constitute a contravention of s 28A.  He also considered the distinction, pointed out by Wilcox J in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 247, that ‘[u]nwelcome sexual conduct may be insensitive, even offensive, but it does not necessarily constitute sexual harassment’, the latter suggesting repetition.

Claims Made in the Appeal Concerning Professor Winder

37                  The allegation of sexual harassment made to HREOC against Professor Winder is that he touched Ms Huang’s hip while passing her in a corridor in the second semester of 1999.  The allegation against Professor Winder is described by Ms Huang in her documentation in the appeal as ‘an upward affectionate stroking motion on hip’ constituting, she says, a sexual advance for sexual favours which in turn constitutes sexual harassment.  Ms Huang confirms that the allegation of sexual harassment against Professor Winder consisted of a single incident late in 1999.  In her Notice of Appeal, Ms Huang repeatedly describes the incident with Professor Winder and she also demonstrated his alleged action a number of times during her submissions.  The description was in terms of touching of the hip with ‘an upwards affectionate stroking motion on my hip, for his sexual advance for his sexual favours to me’.

38                  Noting (at [82]) that Professor Winder had no recollection of the incident, Driver FM expressed concern about Ms Huang’s evidence.  Ms Huang waited more than two years before mentioning the incident and his Honour did not accept her explanation for the delay.  His Honour also commented that Ms Huang had changed her account of the incident over time.  As his Honour recorded at [87]:

… Ms Huang has changed and embellished her account of the incident over time.  Her initial allegation in 2002 was that ‘one day when I passed the passage from the printing room of the school he touched my hip’.  In her 29 October 2004 affidavit she deposed that ‘he stretched out his right arm towards me and touched me on the hip’.  In her oral evidence Ms Huang said that Professor Winder had caressed her.  Her submissions allege ‘affectionate stroking’ and give further details but such detailed recollection is inconsistent with Ms Huang’s oral evidence that she did not see Professor’s Winder’s hand.

39                  Federal Magistrate Driver accepted at [82] that an incident occurred and that there was some physical contact between Professor Winder and Ms Huang as they passed each other in the corridor but found nothing to establish that the incident complained of constituted sexual harassment within the meaning of s 28A of the Sex Discrimination Act.  His Honour concluded that ‘in all probability, the contact that occurred between Professor Winder and Ms Huang was accidental and non-sexual as they passed in the corridor’: at [89].  His Honour noted that the alleged incident did not apparently affect Ms Huang’s dealings with Professor Winder after that time; equally significantly, Ms Huang did not allege that there was ever any other physical contact between her and Professor Winder.

40                  Ms Huang alleges a number of consequences arising from the alleged sexual harassment by Professor Winder.  Those consequences and the existence of them are dependent upon a finding that the single incident alleged against Professor Winder took place and constituted a breach of the Sex Discrimination Act.

41                  Ms Huang alleges that Professor Winder ‘made unwelcome sexual advance for sexual favours to me, engaged in unwelcome conduct of sexual nature in relation to me, and discriminated against me of a sexual nature in relation to my sex, his sexual favours to me, and his sexual harassment, that he treated me less favourably than other girls and the male students and that his support of my PhD, my progress of my PhD and the continuance of my PhD re-enrolment were conditional upon my provision of sexual favours’.

42                  In the Notice of Appeal Ms Huang asserts that, had it not been for the sexual harassment she would have done certain things, such as change her supervisor from Dr Markovic to Professor Winder or not done certain things, such as sent him emails or given him a bottle of wine.  She says that if she had intended to invent Professor Winder’s actions, she would have suggested other contact.  Ms Huang does not suggest that Professor Winder touched her at any other time.  She says that she told Ms Frank that the touching of her hip was sexual harassment because ‘he showed his sexual intention in me’.

43                  In her complaint to HREOC Ms Huang’s description of the alleged sexual harassment by Professor Winder was that on a day when she wore a long skirt and a tight fitting jumper with a ‘v’ neck she ‘turned left out from the printing room and walked along the passage, when A/Prof Chris Winder walked in the opposite to my way.  Before Prof Jean Cross’ office, when the door opened, A/Prof Winder touched my hip when I passed him’.

44                  In her evidence before Driver FM, as summarised by his Honour, Ms Huang confirmed that she did not see what had touched her but believed that it was Professor Winder’s hand brushing her upper thigh in a vertical motion.  She stated that she believed that the contact was sexual because Professor Winder is a man who is highly educated and who would be reluctant to ask for sexual favours directly.  She confirmed that she had no discussions at all with Professor Winder in 1999 and only occasional conversations with him in 1998 or 2000.

45                  Ms Huang describes Professor Winder’s action again in her Notice of Appeal as placing the back of his hand ‘and it was lightly and softly moving upwards on my hip, in an affectionate stroking motion, and he was interested in my sex’.

46                  Accepting Ms Huang’s assertion that she has a recollection of the contact and that it had a profound impression on her, the repeated use of the expression ‘affectionate stroking’ by Ms Huang does not constitute an objective description of what occurred.  Accepting, as Driver FM did, that there was contact between Professor Winder and Ms Huang and accepting that his hand did touch her hip and move upwards as described does not lead to the conclusion that, even if it could be described as a stroking motion, it was ‘affectionate’ or a sexual advance, a request for sexual favours or conduct of a sexual nature within the meaning of s 28A.

47                  Ms Huang makes a number of submissions based upon the Federal Magistrate’s suggestion that she had embellished her account of Professor Winder’s contact with her.  She expresses concern that criticism had been made because she used the word ‘touch’ rather than ‘affectionate stroking’.  Ms Huang said that she always intended to use the word ‘stroke’ although she used the word ‘touched’.  She demonstrated in Court what she said occurred which was a touch with the hand on the hip followed by a continuous upward movement for a few inches.  It is not the use of language that is the issue but the lack of any sexual context in the contact.  Relevant factors include the nature of the contact, the way in which it occurred in a corridor, the isolated incident it represented and the fact that it was not seen by Ms Huang as sexual harassment or reported by her as such until some time after the event.  On Ms Huang’s own version it was a single incident which was in passing in the corridor.  She had barely spoken to Professor Winder at that stage and confirms that he had never shown any sexual interest in her whatsoever.  After the incident there was more contact, in the non-physical sense, as Professor Winder was a co-supervisor.  The contact was verbal and in writing.  There was not any apparent disruption in the relationship after the incident.

48                  In order to determine whether the contact was sexual harassment within s 28A, regard must be had to all the circumstances.  The test is an objective one that does not take into account the motivation of the perpetrator or the individual (AB v Adult Multicultural Education Services [2006] VCAT 1862 at [19]).

49                  It is relevant that:

·                    This was an isolated incident.

·                    It took place in a corridor and was a movement in passing.

·                    Relations between Mr Huang and Professor Winder both before and after the alleged incident were confined to educational matters.

·                    No discomfort was apparent on Ms Huang’s part in her dealings with Professor Winder after the alleged incident.

50                  Federal Magistrate Driver considered the evidence in relation to this allegation and rejected it.  His Honour gave reasons for that finding.  I see no error in his Honour’s conclusion.  A claim under s 28A must be analysed on the basis of the nature or quality of the act: see, for example, Gauci v Kennedy [2007] FCA 1051 at [22].  Irrespective of Ms Huang’s present belief that the contact between Professor Winder’s hand and her hip constituted sexual harassment, she has not shown that his Honour was in error in concluding (at [89]) that ‘the contact that occurred between Professor Winder and Ms Huang was accidental and non-sexual as they passed in the corridor’.

The Alleged Sexual Harassment by Dr Markovic

51                  Federal Magistrate Driver accepted the respondents’ submission that there were two allegations of sexual harassment against Dr Markovic.

52                  The first allegation, described by His Honour at [92], is that in 1999 when he was training a group of students he raised both his hands ‘with lustfully laughing and moved towards Ms Huang with his arms outstretched’.  Dr Markovic denied laughing lustfully and denied that he sexually harassed Ms Huang.  None of the other students present gave evidence.  Federal Magistrate Driver found that Ms Huang embellished this alleged incident over time.  During cross-examination she added as part of the description that Dr Markovic said as he raised his hands ‘I’ll kill you’ or ‘I would kill you’.  Ms Huang conceded that Dr Markovic did not engage in any conduct that indicated a sexual interest in her.

53                  His Honour concluded that whatever was said was intended as a joke and was not sexual in nature and was not conduct within s 28A(1)(a) or (b) of the Sex Discrimination Act.

54                  The second allegation was that, at some time in late August or September 2001, Dr Markovic made a remark about Ms Huang’s marital status.  Dr Markovic denied making that remark.  Another student present gave evidence and failed to corroborate the allegation.  The Federal Magistrate accepted Dr Markovic’s denial that he said anything about a need for sex on Ms Huang’s part.  On that aspect, Driver FM preferred Dr Markovic’s evidence and the documentary evidence to Ms Huang’s evidence.  His Honour noted that one of the other students present at the time but who was not able to be available for cross-examination as he was overseas provided some support for Ms Huang’s allegation that Dr Markovic made a comment about her marital status.  His Honour found that, on the balance of probabilities, that Dr Markovic did make a comment about Ms Huang’s age and marital status.  An internal University investigation supported the allegation and Dr Markovic had been required to undergo counselling.  Federal Magistrate Driver concluded that the remark was ‘offensive and the remedy appropriate’ (at [101]).

55                  However, his Honour accepted that the comment did not constitute sexual harassment within the meaning of s 28A of the Sex Discrimination Act, not being conduct of a sexual nature or pertaining to sexual activity or attraction or relationships.  Accordingly, his Honour rejected the allegations of sexual harassment against Dr Markovic.  Having rejected the allegations of sexual harassment against Dr Markovic and Professor Winder, Driver FM found at [104] that there was nothing to support any other alleged act of sex discrimination under the Sex Discrimination Act.

56                  In her complaint to HREOC Ms Huang said that when Dr Markovic was talking about broken glass ‘he raised his both hands and came to me like to catch me, but I stepped back and avoided the contact’.  She also said that Dr Markovic sometimes talked about sex in front of male students and that he said on one occasion that she had not been married but needed sex and that she was over 30 near 40, but still had pimples on her face.

57                  Ms Huang characterises the second incident as being a ‘sexual comment about my marital status, my age and my sexual life that I was not married that I needed sex and I was over 30 but I still had pimples on my face, in which he suggested and induced the male students made sex relationship with me.’  This, she submits, constitutes sexual harassment.

58                  Ms Huang raises a number of matters concerning her PhD in her amended notice of appeal under the heading of “sexual harassment”.  These were not the subject of complaint to HREOC under this heading and it is not clear how they constitute sexual harassment within the meaning of the Sex Discrimination Act.  They relate to matters such as the provision of assistance and training, her research and the provision of computers.

59                  Ms Huang also says in her amended notice of appeal that Dr Markovic indicated ‘that [Dr Markovic] would compel obedience from me or conquer me for his sexual favours to me, his support of my PhD would be conditional upon my provision of sexual favours, he made sexual comments and induced his male students sexually harassed me’.  She explains that when he said ‘I’ll kill you’ it meant that ‘he would compel obedience from me or conquer me for his sexual favours to me’.

60                  Ms Huang is adamant that Dr Markovic said ‘I’ll kill you’.  Federal Magistrate Driver implicitly accepted at [95] that such a comment may have been made.  His Honour noted, and Ms Huang repeats, that Dr Markovic did not engage in sexual harassment but indicated a sexual interest in her.  She says in her amended notice of appeal that Dr Markovic ‘did not touch me and did not (directly through his mouth) invite me for a social occasion’.

61                  His Honour concluded that, in the circumstances, the conduct complained of was more likely to have been intended as a joke rather than being sexual in nature.  While his Honour accepted that Dr Markovic laughed, and Ms Huang repeats that it was a ‘lustful’ laugh, his Honour did not accept what was clearly a subjective interpretation of the laugh.

62                  It is difficult to see how one can accurately describe a laugh as ‘lustful’ or how that description by Ms Huang is sufficient to establish sexual harassment within the meaning of the Sex Discrimination Act.

63                  Much of the detail raised by Ms Huang in support of her claim of sexual harassment by Dr Markovic involves her reading a sexual connotation into things that he said or wrote.  For example, she says that his saying ‘I’ll kill you’ was a result of ‘his playing sexual game with me’ and that ‘Dr Markovic was so drunk of his sexual favours to me that he really wanted to ‘kill’ me, but he could not ‘kill’ me in front of people, and he would ‘kill’ me in some time after the talking.  He would ‘kill’ me meant he would compel obedience from me or conquer me for his sexual favours to me, as he had known I was afraid and ran away from his sexual favours to me’.  She also characterises any assistance given to her by Dr Markovic in her PhD programme as part of his ‘sexual advance for sexual favours to me’.

64                  Ms Huang says that any failure on Dr Markovic’s part to support her, or any criticism of her work, was due to his sexual interest in her. As part of her case that Dr Markovic had made sexual advances to her, Ms Huang describes a series of reasons why he must have done so.  She cites examples when he said to her things such as ‘you are too hard on yourself’ and when he provided assistance to her.  Suggestions by Dr Markovic that she should ‘take it easy’ in her PhD, that she should learn from her mistakes, that she was expected to work under her own guidance and that it was up to her to determine and manage her time were all linked by Ms Huang to the question of provision by her of sexual favours to Dr Markovic.

65                  Ms Huang directed me to correspondence between herself and Dr Markovic which, she said, contained matters of sexual innuendo.  That correspondence referred to academic and administrative matters, such as support for Ms Huang’s research, specifically in the provision of a new computer and a job in the laboratory.  The material filed by Ms Huang records much of the correspondence about her progress during her PhD.  It also records her repeated concerns about her access to new and better computers, her training and technical skills and the faculty’s attempts to meet her expectations and to provide her with appropriate support.  It records steps taken to try to assist Ms Huang to make progress in her experimental work.  Whether or not each of those steps was appropriate or did in fact assist Ms Huang, it does demonstrate that there was a continuing problem, so far as Dr Markovic and Professor Winder were concerned, with Ms Huang’s progress.  From the correspondence, it would seem that their concern and opinion as to the lack of progress were based upon research activities or lack thereof and not in any way, in either case, linked to any allegations of sexual harassment or sex discrimination.  It is also apparent that Ms Huang did not see any sexual connotation at the time and did not refer to any such suggestion in her correspondence with either Dr Markovic or Professor Winder.  Her correspondence tended to concern her response to criticisms of her work and her assurances that she would do what she could to improve that work.  This was in addition to her requests for assistance and for better computer access and her explanations, founded in part upon her health and her other non-work related commitments.

66                  Ms Huang complained about being treated differently from other students.  In her amended notice of appeal, she links that treatment with the sexual harassment.  In the correspondence at the relevant time she links being treated differently from other students with the provision of a new computer.  There was reasonably extensive correspondence about the use of computers and the state of Ms Huang’s research, all of which was couched in terms unrelated to any sexual matter.  It is apparent from the course of the correspondence that Ms Huang did not read that correspondence at the time as alluding to any sexual matter.

67                  Ms Huang’s case is based largely upon her assertion that there could have been no reasonable complaint about her PhD progress so that all matters raised by Professor Winder and Dr Markovic were discriminatory.  Either she was making unsatisfactory progress and that was the reason for termination or the progress was satisfactory and the inference she seeks to draw is that she was terminated for other reasons such as sexual harassment or sexual discrimination.  There was evidence of Ms Huang’s progress towards her PhD.  The correspondence discloses repeatedly stated concerns about her academic progress by both Professor Winder and Dr Markovic.  While her appeal to the University was upheld, it was acknowledged that there had been an issue about her academic progress.

68                  Ms Huang points out that she did not wish to continue with Dr Markovic or Professor Winder as her supervisor and requested a change of supervisors, to female supervisors.  I do not see that this of itself establishes sexual harassment or sexual discrimination on the part of either Dr Markovic or Professor Winder.

69                  Ms Huang says that her response was internalised.  However, Ms Huang detailed her complaints to the University’s equity officerMs Frank who did not support the allegation of sexual harassment against Professor Winder. On the evidence in the Federal Magistrates Court, Driver FM found that Ms Huang had embellished her account of the incidents with Dr Markovic.  Even if her account that Dr Markovic held out his hands when he was one to two metres away from her and took a half step forward and laughed would not, as his Honour found, amount to sexual harassment.  Again, Ms Huang concedes that Dr Markovic had shown no direct sexual interest in her.  He did not ask her out or ask about her personal life before the incident, although she did say at the hearing before the Federal Magistrate that Dr Markovic had asked her about a boyfriend over the internet.

70                  Finally, Ms Huang submits that Dr Markovic treated her less favourably than other PhD Students both male and female.  She says that was because of the sexual nature of his interests in her.  Apart from the allegations already dealt with against Dr Markovic and Professor Winder, there is no other basis for an allegation of sex discrimination under the Sex Discrimination Act.

71                  The University carried out an investigation into Ms Huang’s allegations of unlawful discrimination and sexual harassment.  As to the allegations of sexual harassment, the University accepted that Dr Markovic may have made a comment about Ms Huang’s marital status and age.  The report concluded that there was no evidence to suggest it reflected a pattern of discriminatory behaviour or of a systemic discrimination but acknowledged the inappropriateness of any comment that could potentially constitute discrimination on the grounds of age and marital status.  The report concluded there was insufficient material to substantiate whether Dr Markovic had said Ms Huang ‘needs sex’. Another student who had been present when the comments were said to have been made was adamant that Dr Markovic did not say anything about sex.

72                  The Federal Magistrate accepted Ms Huang’s evidence of a comment by Dr Markovic about her martial status. That comment had been addressed, appropriately, by an internal procedure of the University. His Honour did not accept Ms Huang’s other contentions in relation to alleged sexual innuendo. His Honour’s findings were open on the evidence before him and Ms Huang has not demonstrated error in the way in which his Honour came to his conclusions.

Alleged procedural unfairness

73                  Ms Huang complains that she was given insufficient time to cross-examine Dr Markovic, Professor Winder and Ms Frank.

74                  Dr Markovic was cross-examined for three days and Professor Winder for two days.  Ms Huang was told in advance that she would have only three days for the hearing.  In fact, the hearing took 18 days.  I do not see that the length of time allocated by the Federal Magistrate for the hearing of this matter was too short.  The number of events, the content of the alleged sexual harassment and other actions of Dr Markovic and Professor Winder were not extensive.  Additionally, Ms Huang had filed more than ample written material.  His Honour was entitled to take steps necessary to ensure the efficient conduct of the litigation.

75                  Federal Magistrate Driver took pains to comment that Ms Huang’s case was particularly difficult and it was not because it raised difficult legal issues or because the relevant facts in dispute were particularly complex.  His Honour cited the difficulties Ms Huang apparently had in conducting her case and that it was impossible to keep the proceedings within reasonable bounds because Ms Huang had been ‘unwilling, or unable to comply with the Court’s directions for the conduct of the proceedings’.  His Honour also commented on Ms Huang’s mental state which, he observed, may in turn have been affected by the litigation process.

76                  I have experienced the same difficulty in dealing with Ms Huang’s case.  Contrary to directions, Ms Huang filed hundreds of pages of written material, much of it repetitive and unfocussed.  It was not directed to the issues that had been agreed between the parties with the assistance of a Registrar of the Court.  It was not directed to the Federal Magistrate’s decision.  I do not doubt that Ms Huang presently feels very deeply about her case and the decision that has been made.  I must discern from the morass of material presented to the Court the errors said to have occurred in his Honour’s reasoning.

77                  Ms Huang complains that his Honour did not refer to each and every piece of evidence that she presented in her written submissions.  It would have been impossible for his Honour, as it is for me, to repeat or to refer to all of the matters contained in the evidence or raised in the written submissions.  Not only are the materials voluminous, they also contain constant repetition and repeated assertions in relation to the same events.

78                  Federal Magistrate Driver’s reasons for judgment disclose that he did not accept much of what was put to him by Ms Huang.  The fact that he did not accept the factual or legal propositions for which she contended does not give rise to an inference that his Honour did not listen to them, understand them, or take them in to account. There can be no real apprehension that Ms Huang was not given a reasonable opportunity to make her case and to be heard in relation to matters affecting her rights and interests. Ms Huang’s attack on his Honour’s reasons amounts, in essence, to a complaint that he did not accept her version of the events. That argument does not found any legal (or logical) basis for her claim of a want of procedural fairness before his Honour.

The alleged racial discrimination

79                  HREOC terminated the complaint of racial discrimination against the respondents under the Racial Discrimination Act 1975 (Cth).  The delegate noted that the allegations of race discrimination raised issues under ss 9 and 18A of that Act.  The delegate terminated the complaint under s 46PH(2) of the HREOC Act as it related to allegations which were lodged more than 12 months after the alleged unlawful discrimination took place, the ground for termination in s 46PH(1)(b).  HREOC did, however, consider the merits of the complaint and was satisfied that there was insufficient evidence to show that the PhD enrolment was cancelled because Ms Huang was of Chinese origin.

80                  As was noted by Driver FM at [105], Ms Huang’s allegation was that both Professor Winder and Dr Markovic discriminated against her because they assumed that her English was too poor to complete a PhD and that Ms Huang’s candidature was cancelled on that basis.  His Honour dealt with the allegation as one of indirect racial discrimination, apparently on the basis that Ms Huang was required to read and write English in the PhD programme.

81                  His Honour’s conclusion was that Ms Huang’s difficulties as seen by her supervisors did relate in part to her ability to write English and to express herself in English.  However, it is quite apparent from the course of correspondence that this was by no means the reason why her PhD enrolment was cancelled.  The more important matters referred to by her supervisors were her lack of progress in the research outline and experimental work and the standard of her literature review.  Again, the complaints about the literature review were not limited to manners of expression but rather the standard of work contained within it.  The primary focus of the criticism was the academic content of the literature review.  In response to this aspect of her complaints, the University noted in the report of its investigation that, while both Professor Winder and Dr Markovic had noted problems with Ms Huang’s spelling and grammar, ‘her poor English skills were only one factor in a wide range in critical analysis of her work, and were not salient in determining their finding that her drafts did not meet the necessary standard’.

82                  Questions about Ms Huang’s viability as a PhD candidate had obviously been raised with her. On submission of the second draft of her literature review, Professor Winder commented that ‘I still consider that this latest draft is still not up to the necessary standard. Reasons for this include: poor grammar, frequent inclusion of incomplete sentences, an apparent misunderstanding of a number of key toxicological ideas… unnecessary repetition of concepts, a lack of logical flow of ideas (in parts) a low level of critical analysis, the intermittent use of inappropriate or out of date references, and overall, a poor presentation of ideas’.

83                  Thus, Ms Huang’s level of proficiency in English clearly played a role in her supervisors’ dissatisfaction with her work.  However, it cannot fairly be said that her language proficiency motivated the rejection of the literature review.  Federal Magistrate Driver noted and clearly accepted Professor Winder’s explanation that Ms Huang’s analysis of documents was poor and that she demonstrated no synthetic or critical skills.  Professor Winder said that he regarded the language errors as something that could be fixed.  Ms Huang was invited to re-submit her revised literature review for further review at the commencement of Semester 1 in 2002 but did not take up that invitation.

84                  Federal Magistrate Driver noted that Dr Markovic admitted that he knew that Ms Huang was a migrant and that English was her second language.  He also knew that she required an English proficiency certificate to undertake her university studies, which he noted that she had obtained.

85                  Federal Magistrate Driver concluded that the views expressed by Professor Winder and Dr Markovic about the quality of Ms Huang’s submitted work had not been successfully challenged.  His Honour noted that the Sub-Committee of the Academic Board of the University found, when determining her appeal, that it held a similar view to that of the supervisors as to the inadequacy of her work.

86                  In addition, Driver FM concluded that the requirement by the respondents that Ms Huang’s work be in English was not one with which she was unable to comply.  Further, his Honour was not satisfied that the requirement was unreasonable.  His Honour commented that Ms Huang ‘was attempting a higher degree at an Australian university where English is the normal language of instruction and submission’.  It is hard to see how Dr Markovic and Professor Winder could have assessed her thesis in any other language; there was no suggestion that either of them spoke or read Cantonese or Mandarin.

87                  The requirement that she work in English had nothing to do with Ms Huang’s Chinese nationality or language.  It was a requirement for all PhD students irrespective of race or national or ethnic origin.  It is not in dispute that Ms Huang’s English was accepted as of a good enough standard to enable her to enrol in the PhD programme, take instruction, collaborate with colleagues and prepare a written document.  Ms Huang had completed a TAFE course and had a certificate for ‘English for Teachers’.  She obtained good marks for her Master’s research and it was not suggested that this was written in any language other than English.  She not only completed her Masters thesis but also had a paper published from it.  She made no mention of having any problem in English in the correspondence concerning her draft literature review.  Her written English is of an acceptable standard and Ms Huang has presented, as I have said, hundreds of pages of written submissions in English in this appeal, although I observe that her spoken English is not of the same level. 

88                  Ms Huang says that Professor Winder sought any excuse to reject her thesis and that that constitutes racial discrimination.  Her complaint seems to be that the requirement to complete her thesis in the English language was racially based and that the rejection was because of her inadequacy in writing in English.  Ms Huang’s submission as to the reasons for the rejection of her PhD and the relationship between the rejection and her ability to speak English is not consistent.  She says that it was rejected because of her poor English skills and at the same time she asserts that her written English is very good and that there was no reason for the rejection of her work.

89                  Federal Magistrate Driver’s conclusions on the evidence was that Ms Huang and other PhD students were required to work in English; that Ms Huang was not unable to do so; and that the requirement was a reasonable one (at [112]).  I see no error in his Honour’s conclusion that Ms Huang did not make out a claim of racial discrimination.

The alleged disability discrimination

90                  Section 5 of the Disability Discrimination Act 1992 (Cth) provides that:

(1)       For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

91                  Section 6 provides:

For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a)       with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b)       which is not reasonable having regard to the circumstances of the case; and

(c)        with which the aggrieved person does not or is not able to comply.

92                  In an annexure to his reasons, Driver FM set out a detailed summary of the evidence before him. His Honour referred to Ms Huang’s evidence that she had told Dr Markovic in April 2000 that ‘her brain was heavy’ and that her mental problems were affecting her studies.  However, she also gave other reasons to Professor Winder and Dr Markovic for interrupting her studies and these were related, for example, to her obtaining of a part-time job.  She said that she complained of illness in July 2001 but accepted that she had also indicated that she would be able to start laboratory training at the end of July.  She admitted that she told the University that she had been distracted by other legal proceedings in July 2001 and that Dr Markovic had suggested counselling and medical assistance for her in July 2001.  Other evidence relating to her medical condition included an admission by Ms Huang that she had resisted efforts by the University to gain access to her medical records relating to a ‘slip and fall accident’.  Ms Huang said that her impression was that she was treated differently by Professor Winder in 2001 when she returned from sick leave and that before she took sick leave both Professor Winder and Dr Markovic were happy with her work.

93                  His Honour also records that in her evidence, Ms Huang reviewed the medical evidence relating to her physical and psychological problems.  She asserted that the psychological problems she encountered during 2001 were not pre-existing and were caused by what she described as bullying and plagiarism, the giving of her work to others and threats to her PhD enrolment.  She admitted to being obsessed by what she regarded as unlawful treatment.  As Driver FM observed, on one hand Ms Huang claims against the University because she says her mental condition was caused by her treatment, and on the other hand she says that her candidature was terminated because she was suffering from a disability.  She has never articulated precisely how she was discriminated against because of her disability.  Her claims against the University are for $23 million.

94                  Federal Magistrate Driver said that he found Ms Huang’s allegation of discrimination on the ground of disability to be unclear.  His Honour said that she appeared to allege direct discrimination on the ground of disability and that the asserted disability appeared to be her mental problems (at [113]).  His Honour observed that Ms Huang, during argument, also referred to a claim of indirect disability discrimination but that it had not been developed.  His Honour accepted the evidence that Ms Huang suffered from disabilities and from obsessive-compulsive disorder, depression and anxiety with an underlying vulnerable personality, including obsessive compulsive personality traits.  She also suffered from tritilmania.  His Honour observed that Ms Huang’s case presented a logical problem because it was central to her allegations that the respondents caused her disabilities, not that they acted as they acted as they did because of them.  As his Honour noted, if the disabilities did not exist at the time of the respondents’ conduct complained of and were not then imputed to her, there could be no disability discrimination based on them.

95                  His Honour accepted the respondents’ submission that it is doubtful that the University was aware that Ms Huang suffered from a disability within the meaning of the Disability Discrimination Act in 2001.  She did not bring her disabilities to the attention of the University in 2001 and did not indicate that her part-time enrolment had any connection with any health issue or disability.  His Honour observed that, although Ms Huang complained of lack of concentration and other health issues from time to time, she did not at any stage indicate that she had an ongoing disability.  When she complained of stress it was suggested that she consult the Counselling Service of the University but Ms Huang did not take up this suggestion until 24 October 2001.  A medical certificate dated 18 June 2001, which may have been provided to her supervisors, stated that she was unable to attend on that date but did not indicate a continuing problem.

96                  The Federal Magistrate accepted the respondents’ submission but it was not clear from the evidence that Ms Huang was treated less favourably than any other PhD candidate.  His Honour also noted that the decision of the Appeal Sub-Committee of the University’s Academic Board recognised that there was a lack of documentation of Ms Huang’s medical condition and its impact upon her research.  His Honour considered that this confirmed a lack of knowledge by the University and Ms Huang’s supervisors of her disability and a probable failure of administration.  His Honour expressed a doubt that the University met its duty of care to Ms Huang and that the seriousness of her condition could and probably should have been detected and dealt with earlier and more efficiently.

97                  However, his Honour was called upon to decide whether the University had discriminated against Ms Huang on the grounds of her disability and he found the claim of disability discrimination unproven.

98                  Ms Huang submits that she had drawn the attention of the University and her supervisors to her disabilities on an ongoing basis.  She describes these disabilities as her mental condition, sick leave and part-time study.  She also says that she had drawn the respondents’ attention to the fact that she suffered from stress and nervous disorder and was unable to work on her PhD under stress.  She says that Dr Markovic and Professor Winder continually threatened her with the cancellation of her PhD on that ground, imposed requirements upon her that she could not meet and denied and restricted her access to research sources.  Ms Huang asserts that the respondents victimised her and sought any excuse to do so, including her disabilities and that they took no account of her disabilities and their impact on her research.  In a way that is not clear, Ms Huang also links the alleged sexual harassment by Dr Markovic and the threat to her PhD position with her medical condition.  Ms Huang inter-relates her allegations of disability discrimination with complaints of victimisation and the stealing of her research ideas and the assignment of her PhD work to others.

99                  Ms Huang complained of stress and said that her ‘brain was not working’ and that she needed special care.  When the University was made aware of Ms Huang’s assertions of her disabilities, it allowed her appeal against the decision to terminate her PhD enrolment on the basis of disability.  The University determined that Ms Huang should be allowed more time to complete her PhD, although the Appeal Board agreed that Ms Huang’s work was not of a sufficient standard.  Ms Huang acknowledges that she was permitted to recommence her PhD after a letter was written concerning her health problems.  She says that her enrolment was impracticable because no supervisor could be found.

100               Fundamental to the question whether the respondents discriminated against Ms Huang on the ground of her disability is whether, prior to the termination of her enrolment and prior to her appeal, the respondents or any of them knew of that disability or those disabilities, or whether her illness was apparent to them.

101               Ms Huang she says that since early 2001 and until February 2002 she complained and continually brought her ongoing disabilities, being her mental condition and mental suffering, to the attention of Dr Markovic and Professor Winder.  She says she requested the time to complete her PhD but they insisted that she meet deadlines.  She asserts that she was victimised because she complained of her medical condition.

102               Ms Huang did not suggest to any of the respondents at the relevant time that she was suffering from a mental illness, diagnosed or otherwise, or that she needed special facilities to finish her PhD.  Her requests for a part-time job and computer equipment do not come within this category.  She gave as the reason for leave from her research the need to look for work or financial necessity.

103               Ms Huang did submit two medical certificates: one applying for one week, as she was suffering from ‘headache, under extreme pressure work circumstances’, the other for one day as she was suffering from ‘pain in hips & back & headache’.  These did not convey to the recipient an ongoing mental illness. The respondents were aware that she complained of stress and referred her to counselling but that does not establish that they appreciated that the stress constituted a disability.  Ms Huang did complain of stress and that her brain was not working and that she needed some special care but it is apparent that, in context, Dr Markovic attributed that stress to the normal stress experienced by PhD students because of the work they were required to do.  It is not apparent that an illness was known to her supervisors at the time the decisions were made requiring her to submit her literature review and research plan and that she not be permitted to re-enrol in the PhD program, prior to the time when she appealed the decision not to permit her to re-enrol.  Dr Markovic admitted in evidence before Driver FM that Ms Huang had raised issues concerning her mental health in around May 2001 and added that he became concerned about the content of her emails at around that time as indicating mental health problems.  He could not recall seeing medical certificates provided by Ms Huang.  There is no evidence to establish that Professor Winder knew of Ms Huang’s asserted mental condition when he decided to recommend that she not be permitted to continue her PhD.

104               When Ms Huang sought leave from her PhD program, she gave as the reason a need to look for work for financial reasons.  It is not apparent that she told the University that the reason for her need to take more time for her PhD was a mental disability and the need for special facilities.  Accordingly, it is hard for her to establish, for the purpose of an allegation of direct discrimination, that any of the actions of the University were made with knowledge that she suffered from a disability.

105               The evidence does not establish that the treatment of Ms Huang with regard to her PhD thesis or the decision not to recommend or permit her to continuation in that course was on the ground of her alleged disability, specifically on the ground of her mental state.  It is not clear whether Ms Huang’s difficulty in complying with the requirements for the PhD, or the length of time taken for the completion of the literature review and preparation of the research outline, were due to her mental disability, her need for an outside job for financial reasons, or her general difficulties in completing the work required because of the lack of access to computer services.

106               It is not clear when Ms Huang’s mental difficulties started to interfere with her studies, nor the extent to which they did.  It is not clear whether the University knew or was aware of any such impact.  Ms Huang says that the reason for rejection of her continued candidature was that she was taking too long and that the reason for taking too long was her mental disability.  However, Driver FM found that it was clear that Ms Huang was not treated less favourably than any other PhD candidate and that, in fact, the accommodation she was afforded, such as extensions of time for submitting work, probably constituted more favourable treatment than was given to other candidates.

107               As to a possibility of indirect discrimination, the question arises whether it was reasonable for the University to require her to complete her PhD on the same basis as other students.  The indications are that Ms Huang was treated in the same way as other PhD students, except to the extent that she was afforded accommodation to cope with the variety of problems that she stated she had.  The length of time Ms Huang was taking may have been a factor in the decision about her place in the PhD programme but Ms Huang has not demonstrated that this was the reason or even an important reason for the decision that was made.  Rather, the evidence suggests that the reason not to recommend re-enrolment was the standard of her work.  Ms Huang’s evidence does not establish that the standard of her work was affected by her disability; rather, it was the time that she took to complete it.

108               I am not satisfied that Ms Huang has demonstrated that Driver FM was in error in finding her claim of disability discrimination, direct or indirect, unproven.

The alleged victimisation

109               Ms Huang used the word ‘victimisation’ in her complaint to and correspondence with HREOC and in the amended notice of appeal and submissions.  The respondents do not concede that a claim of victimisation was terminated by HREOC.  In her complaint to HREOC under the heading “victimisation”, Ms Huang described the failure by Dr Markovic to assist her and his actions towards her after she expressed her concern of what she described as ‘unfair treatment to the counselling’.  She said that he ‘nursed thought of revenge’.  She also said that Professor Winder stopped her from continuing her research in the school.  She said that she was the victim of “infighting” between Professor Winder and Dr Markovic.

110               Federal Magistrate Driver pointed out that victimisation is dealt with in s 94 of the Sex Discrimination Act.  By s 94(2) victimisation for the purposes of the section concerns a person being subjected or threatened with detriment on the ground that they made or proposed to make a complaint under that Act or the HREOC Act or took steps in relation to HREOC.  One or more of those matters must be a ‘substantial and operative’ factor in the detriment to which Ms Huang was subjected or threatened with (see Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [240]).  Ms Huang did not identify to Driver FM the detriment to which she alleged she was subjected or the acts referred to in s 94(2)(a)–(g) of the Sex Discrimination Act, or the course that she took or proposed taking, or the knowledge that the first, second or third respondents had concerning those acts, or the connection between any of those acts and the detriment alleged.  The Federal Magistrate pointed out at [122] that Ms Huang had not identified evidence of those matters.  His Honour found, from the evidence, that Ms Huang first raised her allegations of sexual harassment at her meeting with Miss Nabke-Hatton on 22 March 2002 and that the respondents did not know of her allegations of unlawful discrimination before that date.  His Honour found that there was no evidence that Ms Huang ever raised any assertion of unlawful discrimination before that time.  By then her supervisors had already told her that they would not be supporting her re-enrolment.

111               Accordingly His Honour found that there was no unlawful victimisation under the Act.

112               Ms Huang’s allegations of discrimination and harassment were considered as part of the decision-making process on her appeal against the cancellation of her enrolment. Federal Magistrate Driver found that these allegations did not appear to have been factors bearing on the decisions that were taken.  In any event, the appeal resulted in Ms Huang being offered the opportunity to re-enrol.

113               While there were numerous communications between Ms Huang and the respondents prior to her complaint in March 2002, none could reasonably be interpreted as suggesting an intention to make a complaint within the meaning of s 94(2) of the Sex Discrimination Act (or, for that matter, s 27(2) of the Racial Discrimination Act 1975 (Cth) or s 42(2) of the Disability Discrimination Act 1992 (Cth)).  Ms Huang raised the issue of sexual discrimination or disability discrimination after the rejection of the second submission of her literature review on 30 November 2001.  The comments predicating the decision that Ms Huang not be permitted to remain as a PhD student were made by Dr Markovic on 31 December 2001 and by Professor Winder on 3 January 2002.  That is, all relevant actions taken by Dr Markovic and Professor Winder, and through them the University, of which Ms Huang complains were taken prior to any suggestion of a complaint being made to HREOC or otherwise.

114               In her submissions Ms Huang describes as “victimisation” the attitude towards her during the course of her studies and prior to the decision made by the University that she not be permitted to re-enrol.  It is clear from her written submissions that her description of ‘victimisation’ relates to the time before she first made an allegation to Miss Nabke-Hatton or to the University of sexual harassment, sexual discrimination or disability discrimination.  She states in her written submissions that she asserted her complaint about the sexual harassment/discrimination prior to the termination of her PhD but there is no evidence supporting that assertion.  The fact remains that, on the evidence, Ms Huang has not shown his Honour to have been in error in concluding that the decision to terminate her PhD preceded any allegation in relation to the Sex Discrimination Act, the Racial Discrimination Act or the Disability Discrimination Act.  To the extent that Ms Huang refers to events that occurred after she gave notice of her complaints, it is difficult to identify the victimisation to which she says she was subjected.  She has some complaint about the University’s process in dealing with her PhD position but it is apparent that the University’s decision-making process and consideration of her status as a PhD student were affected by the consideration of her capacity as a PhD student.  They were not based on or relate to Ms Huang’s complaints of sexual discrimination or harassment against Dr Markovic or Professor Winder.

115               Ms Huang has not established any error in Driver FM’s conclusion that there was no unlawful victimisation. I reject, as his Honour did, the contention that there was.

Conclusion

116               Ms Huang has not shown that the Federal Magistrate was in error in dismissing her application or that his Honour erred in any legal, factual or procedural respect.  She has not established any of her grounds of appeal.  The appeal should be dismissed.

Associate:

Dated:         18 December 2008