FEDERAL COURT OF AUSTRALIA

Huang v University of New South Wales [2010] FCA 208

THE COURT ORDERS THAT:

1.                  The proceeding be stood over for directions on 12 March 2010.

2.                  No order be made as to costs.

THE COURT DIRECTS THAT:

3.                  The exhibits be returned to the Applicant.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                    The applicant in this proceeding seeks an order under s  9A of the Foreign Evidence Act 1994 (Cth) (the Act).  Section 9A(2) of the Act relevantly provides that the Federal Court of Australia may, on the application of a party to a proceeding before the Federal Magistrates Court, exercise the same power to make an order of the kind referred to in Division 1 of the Act as the Federal Court has under Division 1 for the purpose of a proceeding in the Federal Court of Australia.

2                    Section 7, which is in Division 1 of Part 2 of the Act, provides that in any proceeding before the Federal Court, the Court may, if it appears in the interests of justice to do so, make an order relating to a person outside Australia for the issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.  Under s 7(2), in deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:

·        whether the person is willing or able to come to Australia to give evidence in the proceeding;

·        whether the person will be able to give evidence material to any issue to be tried in the proceeding;

·        whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.

3                    The applicant, Ms Huang, has commenced a proceeding in the Federal Magistrates Court.  That proceeding has had a somewhat tortuous history.  It appears, although it is not entirely clear from the material that has been put before this Court, that Ms Huang seeks damages from the University of New South Wales (the University) and Mr Fuchun Xiao, in respect of alleged sexual harassment committed by Mr Xiao in relation to Ms Huang at a time when Mr Xiao was in some way connected with the University.  At that time, Ms Huang was undertaking postgraduate study at the University.  Ms Huang’s complaint is that during the time of her research and employment with the University, during 1999, 2000, and 2001, Mr Xiao was extremely rude and offensive and displayed unwelcome and pornographic pictures on computers.  Ms Huang seeks an order under the Act in relation to Professor Dao Jai Park. 

4                    Ms Huang alleges that, in late August or September 2001, she went to an office in a building within the University campus to seek some assistance in downloading software for Acrobat Reader to enable her to read research documents.  She says that, on that occasion, she saw Professor Dao Jai Park, a PhD researcher from Korea.  Dr Tae Jeong Kim, another PhD researcher from Korea, was also present.  Ms Huang asked Professor Park whether he knew how to install Acrobat Reader.  Professor Park said he did not.  Ms Huang then asked Dr Kim for assistance.  He said that he did not know how to install the software.  He then turned to Mr Xiao, who was also present but was, at that stage, outside the office.  Professor Park then said that Mr Xiao knows how to install the software because he is doing a computer course. 

5                    Ms Huang says that, from outside the office, Mr Xiao said that he could do what she wanted.  Ms Huang says that she then left that part of the office and went with Mr Xiao into her room for the purpose of having the software installed.  Ms Huang asserts that Mr Xiao, when he accessed the internet on her computer, was very rude and intentionally showed her unwelcome pictures on the computer screen. 

6                    Ms Huang says that, in November 2003, she went back to the office where she had first seen Professor Park, where he told her that he remembered the occasion in August or September 2001 when she had asked for assistance, when Mr Xiao had followed her to her office to give that assistance. Ms Huang also says that, in September 2004, she again saw Professor Park, and asked him to provide a statement about the events of 2001.  Professor Park replied that he was very busy.  Ms Huang says that she sent an email outlining the events to Professor Park, and in reply he typed the words, “Yes, I remember.” 

7                    Ms Huang says that in, February 2005, she again went back to speak to Professor Park in the same room.  She produced for him a draft affidavit which, in due course, Professor Park swore before a Justice of the Peace.  The affidavit of Professor Park of 16 February 2005 is in the following terms:

1.         In 2001 Mr Taiyoung Kim’s and my offices were in room 119 and Ms Hong Cui Hunag’s office was in room 123.  One day in about August or September 2001, Ms Hong Cui Huang came into my office, room 119, and asked me to help her to install software with reading function into her computer, but I told her I did not know how to do it.  Ms Hong Cui Huang turned to ask Mr Taiyoung Kim, and Mr Taiyoung Kim said he did not know it and he said that Mr Fuchun Xiao might know it.  Then Ms Hong Cui went to the other side of the office and talked with Mr Fuchun Xiao, and Mr Fuchun Xiao followed Mr Hong Cui Huang to her office to provide her the assistance.

2.         At about 5.30pm on 11 November 2003, Ms Hong Cui Huang came to see me for the mater and I told her that yes I remember that Mr Fuchun Xiao followed her to provide her the assistance when Mr Taiyoung Kim and I could not provide her the assistance.

3.         I have attained the age of sixteen years.

8                    It appears that, in the proceeding in the Federal Magistrates Court, Mr Xiao denies the allegations made by Ms Huang.  When the matter was first before the Federal Magistrates Court for hearing in April 2005 Ms Huang again went to see Professor Park at the University’s campus and told him that he needed to go to Court for the hearing.  Professor Park replied that he did not wish to give any help in Court.  At a hearing before the Federal Magistrates Court on 6 April 2005, Ms Huang sought to read the affidavit of Professor Park of 16 February 2005.  Mr Xiao objected to the Court receiving the affidavit on the ground that it was wrong.  The federal magistrate said that the affidavit did not say very much, but was generally consistent with what Ms Huang had put before the Human Rights Commission.

9                    The federal magistrate asked Mr Xiao whether, if Professor Park were present, he would want to cross-examine him. Mr Xiao said that he would want to cross-examine.  The federal magistrate said that he considered that the affidavit of Professor Park was relevant to the claims that had been made although its relevance was marginal because it simply provided some corroboration of what Ms Huang said had happened.  The federal magistrate said that he was going to receive the affidavit as evidence, notwithstanding that Prof park was not available for cross-examination.  For that reason, however, His Honour said that he would give the affidavit minimal weight.  His Honour said expressly that, if the affidavit was contradicted by more reliable evidence, he would prefer that other evidence.  Nevertheless, he accepted that the affidavit was before him. 

10                In the event, the Federal Magistrates Court dismissed Ms Huang’s proceeding for reasons published on 16 May 2005.  Ms Huang appealed to the Federal Court from those orders.  For reasons published on 25 May 2006, Rares J ordered that the appeal be allowed.  In his reasons for making that order, His Honour referred expressly to a ground of appeal relied upon by Ms Huang that Professor Park was not available at the hearing.  His Honour recited briefly the evidence contained in Professor Park’s affidavit and concluded that Professor Park’s evidence could not have any bearing on the outcome of the case.  His Honour said that, while it was correct that Mr Xiao said that he could not recall providing assistance to Ms Huang in 2001, Professor Park’s affidavit provided some corroboration of her assertion.  Rares J therefore concluded that the federal magistrate had taken Professor Park’s affidavit into account.  The affidavit was not, in fact, contradicted by Mr Xiao or by any other evidence.  Mr Xiao could only say that he did not remember providing assistance to Ms Huang in 2001.  In the result, Rares J concluded that there was no denial of procedural fairness as Ms Huang asserted by reason of the fact that Professor Park was not available to give evidence.

11                It appears that Professor Park is now resident in South Korea.  Ms Huang has made some efforts to communicate with him with a view to having him assist by giving evidence.  As recently as 11 November 2009, she made several telephone calls to the number that she believes is Professor Park’s but he would not talk to her and refused to continue the telephone calls.  On 24 September 2009 the Federal Magistrates Court issued a subpoena to Professor Park addressed to him at the University of New South Wales.  On 10 November 2009 the Federal Magistrates Court gave leave for a subpoena to be reissued to Professor Park, to be returnable at the further hearing fixed for 29 March 2010. 

12                The hearing date of 29 March 2010 was fixed by the Federal Magistrates Court in November 2009.  On 1 March 2010 Ms Huang applied to the Federal Magistrates Court to vacate the hearing fixed for 29 March.  A number of reasons were given in that application as follows:

·        Fuchun Xiao is an unreliable witness and does not admit the allegations made by Ms Huang.

·        Fuchun Xiao denies the claims made by Ms Huang.

·        Professor Park swore an affidavit that he remembered seeing Fuchun Xiao go into Ms Huang’s office in August or September 2001.

·        Professor Park is not available to give evidence at the hearing on 29 March 2010.  In particular, it was said that steps were being taken to apply for letters of request and it would take about three to four months for the service and taking effect of the proposed letter of request.

·        Another witness, Ms Yee Wang, is on holiday overseas. 

·        Another witness, Dr Jagdi Satchiff is on holidays.

·        Ms Wang is not ready to go ahead because she suffers from a mental condition and other illnesses such that she would be unable to prepare for a hearing on 29 March 2010. 

It appears that the Federal Magistrates Court declined to vacate the hearing date, although I have not seen any reasons, if any were given, for so doing. 

13                The position presently before the Court is that the only information as to how long it would take for letters of request to be complied with is that it may be three or four months.  While the Department of Foreign Affairs has indicated that it would not delay in processing applications for letters of request, the department has said that while it is difficult to estimate the time a request may take, it generally takes a few months.  In those circumstances, I can only conclude that there is no reasonable prospect of letters of request being answered in time for a hearing on 29 March 2010. 

14                Ms Huang, however, has intimated that she proposes to make another application to the Federal Magistrates Court to vacate the fixture on the ground that her health is such that she will be unfit to conduct the proceeding.  Counsel for the University has made it clear that the University requires some finality in the matter, and is likely to oppose any further application to vacate the hearing date.  Mr Xiao, who is also a respondent to the proceeding in the Federal Magistrates Court, did not appear today.  There is some evidence that steps were taken to inform him of the hearing.  However, there is also other evidence indicating that he regards the proceeding by Ms Huang as harassment of him and that he sees no reason to cooperate with her.  In the circumstances, there is no utility in making an order under s 9A of the Foreign Evidence Act for evidence to be available at a hearing commencing 29 March 2010. 

15                There may also be a question of whether or not justice will be better served by granting the order.  The University, in effect, neither opposes nor supports the application, but has appeared by way of assistance to the Court indicating that there would be little utility in granting the application for the reasons I’ve already given.  The University also contends that the evidence of Professor Park is of marginal relevance.  As the Federal Magistrates Court said on the first occasion, and as was repeated by Rares J: 

The evidence does no more than corroborate the fact that Fuchun Xiao was present on an occasion when Ms Huang asserts that he showed her images on her computer screen that she found offensive. 

16                It is by no means clear that Mr Xiao, if he appears at a hearing before the Federal Magistrates Court, will deny that there was an occasion when he was present with Ms Huang.  That is to say, even if Professor Park were to give evidence that he saw Mr Xiao and Ms Huang on an occasion in August or September 2001, that is not necessarily inconsistent with Mr Xiao’s denial of the allegations made by Ms Huang.  I am mindful of the fact that Ms Huang appears without legal representation, although this application has been unnecessarily prolonged by the way in which it has been conducted by Ms Huang.  It is an application that should have been disposed of in a very short time.  I have, however, given Ms Huang considerable leeway and indulgence in allowing her to present her case and to make clear to the Court why it is she says she needs the evidence of Professor Park. 

17                In the circumstances, I am not persuaded that an order should be made under s 9A, principally for the reason that I have already given, namely, that there would be no utility because the evidence would not be available for the hearing.  However, against the possibility that the Federal Magistrates Court may be prepared to entertain a further application for the vacation of the hearing date, I propose to stand this matter over for several weeks to see whether or not there is any point in considering further the utility of making an order. 

18                Ms Huang has filed a notice of motion seeking substituted service of the initiating process on Mr Xiao.  That motion is returnable before me on 12 March 2010.  The convenient course, it seems to me, is to stand this matter over to 12 March 2010.  If, at that stage, the fixture in the Federal Magistrates Court on 29 March 2010 has not been vacated, I propose to dismiss this application.  If the hearing has been vacated, I will consider affording Ms Huang the opportunity of renewing her application.  Whether a further indulgence will be granted may depend upon whether Mr Xiao appears and the extent to which Ms Huang will be able to persuade me that the evidence of Professor Park is likely to be of sufficient materiality to justify the cost and expense that may be involved in having him examined pursuant to letters of request. 

Associate:

Dated:         11 March 2010