FEDERAL COURT OF AUSTRALIA

University of New South Wales v Huang [2012] FCA 308

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1        This is an appeal against a judgment of a Federal Magistrate under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). In that judgment, the Federal Magistrate dismissed an application by the University of New South Wales (the University) to dismiss Ms Huang’s, the first respondent, substantive proceedings against the University and Mr Abayawickrama, the second respondent. Because that judgment was an interlocutory order, leave to appeal it was required under s 24(1A) of the FCA Act. Flick J granted that leave in June 2011. At the same time, Flick J referred Ms Huang to a pro bono counsel under O 80 of the former Federal Court Rules. That has allowed Ms Huang’s case in this appeal to be conducted with much more efficiency than appears to have been the case with her substantive proceedings in the Federal Magistrates Court.

THE GROUNDS OF APPEAL

2        The notice of appeal before this Court identifies three broad bases of complaint about the Federal Magistrate’s judgment. In summary form, they are that the Federal Magistrate erred in not summarily dismissing Ms Huang’s application for one or more of the following reasons (in the order they appear in the notice of appeal):

(a)    that Ms Huang had no reasonable prospects of prosecuting her claim relying on s 17A of the Federal Magistrates Act 1999 (Cth) (the FMC Act) – grounds 1–3 inclusive

(b)    by reason of Ms Huang’s default in complying with an order of the Federal Magistrate requiring her to file her affidavit material, relying on Rule 13.03B of the Federal Magistrates Court Rules 2001 (the FMC Rules) – grounds 4–6 inclusive

(c)    that Ms Huang’s claim was an abuse of process in that the conduct of her case was unreasonably oppressive to the University, relying on Rule 13.10(c) of the FMC Rules – grounds 7–8.

3        During the hearing of this appeal, the University abandoned the first basis of complaint, viz the no reasonable prospects grounds in paras 1–3 of the notice of appeal. At the same time, the University’s counsel made it clear that, while the third basis of complaint involved a completely separate ground, the weakness of Ms Huang’s case should be taken into account as a part of the assessment as to whether her proceedings amounted to an abuse of process. I will return to this aspect later in these reasons. First, it is necessary to set out the factual context of this appeal, the relevant parts of the Federal Magistrate’s reasons for decision and the contentions of the parties on these two remaining bases for this appeal.

FACTUAL CONTEXT

4        In 2000 and 2001, Ms Huang was a PhD student at the University of New South Wales. In 2002, she made a complaint to the Human Rights and Equal Opportunity Commission (the Commission) alleging that when he was a member of the University staff, Mr Abayawickrama had sexually harassed her. In her complaint, Ms Huang alleged that Mr Abayawickrama had shown her some pornographic material on his computer and made comments to her with a sexual innuendo. At the same time, Ms Huang made other complaints of sexual discrimination against two other members of the University staff: Dr Markovic and Associate Professor Winder.

5        On 28 July 2003, the Commission decided to terminate all of Ms Huang’s complaints under s 46PH(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and notified her accordingly. Ms Huang then commenced proceedings in the Federal Magistrates Court against the University, Mr Abayawickrama and the other members of the University staff mentioned above. In the meantime, Mr Abayawickrama had returned to live in Sri Lanka. In 2004, the proceedings involving the allegations against Mr Abayawickrama were separated from the proceedings involving the other University staff members. The proceedings against the latter were finalised in 2008: see Huang v University of New South Wales [2008] FMCA 11 and Huang v University of New South Wales [2008] FCA 1930.

6        Also in 2004, a request was made by the Registrar of the Federal Magistrates Court, of the Secretary of the Attorney-General’s Department, to transmit a copy of the application in these proceedings to the appropriate authorities in Sri Lanka with a request that personal service be effected on Mr Abayawickrama. Unfortunately, that request referred to the original (unseparated) proceedings involving both Mr Abayawickrama and the other members of the University staff, rather than the separated proceedings. It appears this error was not detected until 2008 when Cameron FM determined that the service of the original application on Mr Abayawickrama was defective and he gave leave to Ms Huang to make a further request to serve the application in the separated proceedings on Mr Abayawickrama in Sri Lanka: see [2008] FMCA 1407. It is clear from that decision that Ms Huang was not responsible for the delay associated with this error: see at [19].

7        Earlier in 2008, orders were made joining the University as a party to the separated proceedings – while the University was a party to the original proceedings, it had not, to that time, been a party to the separated proceedings. In the same set of orders, Ms Huang was ordered to file and serve all affidavits upon which she wished to rely. Ms Huang complied with that order in April 2008 by filing and serving some six affidavits. It is not clear to me what happened in the intervening two years. Nonetheless, in July 2010, orders were made that the University was to file its response to Ms Huang’s application by 27 August 2010 and that Ms Huang was to file and serve any further affidavits upon which she wished to rely by 29 October 2010. Ms Huang did not file any further affidavits by 29 October 2010. As a consequence, on 22 December 2010, the University filed its application seeking to have Ms Huang’s proceedings summarily dismissed for, among other reasons, her failure to comply with the order of July 2010. However, on the first day of the hearing of the University’s application for summary dismissal, ie 24 March 2011, Ms Huang did file some further affidavits. The Federal Magistrate made his decision on the University’s dismissal application about a week later. It is that decision which led to this appeal: [2011] FMCA 235.

FEDERAL MAGISTRATE’S DECISION

8        Since the University is no longer pursuing its first basis of complaint, viz the no reasonable prospects of success ground, it is only necessary to consider the Federal Magistrate’s decision in relation to its other two bases of complaint. They are, first, the alleged failure to properly apply the default provisions of Rule 13.03B of the FMC Rules and, secondly, the failure to dismiss the proceedings as an abuse of process under Rule 13.10(c) of the FMC Rules.

9        In relation to the default provisions of Rule 13.03B, the Federal Magistrate’s reasons were as follows:

3.    Dealing first with the question of whether the applicant is in default of the orders made by the Court, it is true that it was not until last week that she filed a further affidavit setting out the basis of her claims. However, it should not be overlooked that the orders made on 31 July 2010 were ones which ordered that the question of whether or not the alleged acts of sexual harassment occurred should be determined as a separate question. Until that point, all matters were on the table and the matter was proceeding to a hearing on all issues. Consequently, the affidavits which the applicant had filed earlier in the proceedings were addressed not only to liability, but also to quantum. In this connection, regard should be had to the applicant’s affidavit filed on 16 April 2008 in which she set out the essence of her claim, at least in one of its iterations.

4.    The fact that the applicant took until last week to file a further affidavit is, undoubtedly, a breach of the order made on 31 July 2010 but, at the end of the day, if the applicant wishes to file further affidavits in support of her case or does not wish to file affidavits in support of her case that is a matter for her. Orders dismissing proceedings for default in compliance with earlier orders of the Court should only be made where the step which is required to be taken is one which is necessary for the forward conduct of the matter, whether that be the necessity for a respondent to file a response and a supporting affidavit, for a party to give discovery, answer interrogatories or something of that sort. A default of that nature may, in certain circumstances, justify the Court in dismissing a matter summarily. However, the fact that an applicant has failed to file evidence in addition to what she has already filed is not the sort of default which, in my view, justifies dismissal of the matter.

10        In relation to the abuse of process ground, the Federal Magistrate’s reasons were as follows:

12.    The third limb of the University’s application is that the proceedings are an abuse of process. There can be no doubt that there are aspects of these proceedings which, truly, are abusive. The applicant seems to find it difficult to confine her claim to something within the ambit of what she alleged to the Human Rights and Equal Opportunity Commission. Secondly, she makes bold assertions which appear to be unsubstantiated by facts. She also makes bold assertions from the bar table which are scandalous and embarrassing on occasions. She files many applications in a case, not as many in this case as in Dr Xiao’s case (proceedings SYG577/2008), but certainly applications in a case which seem to be vexatious. The application in a case which was filed today is undoubtedly vexatious in some respects because it seeks to canvass the ruling which I made last Thursday on the application in a case which she had filed last week. It is, I accept, an expensive case for the University to run. The cost is disproportionate to the matters in issue, both factually and in terms of the damages which are likely to flow were the applicant to be successful, and it is unfair on the respondents that they seem to be dealing with a claim which is not set in stone, and it does seem to move. However, all those things are examples of conduct which can be addressed on each individual occasion.

13.    The essence of a decision to dismiss proceedings on the grounds that they are an abuse of process is that they are deliberately vexatious to a party, deliberately oppressive of a party or have no prospects of success whatsoever. It might be a case where all of the issues have been decided by the parties previously and the proceedings are just a reventilation of the matters which have previously been determined. Those sorts of cases are an abuse of the process of the Court and should not be entertained. However, the fact that the applicant, who plainly has psychiatric issues which she freely admits, is not a lawyer but a scientist by background and is operating in a language which is not her first language, tends to explain, though not always excuse, her conduct of the proceedings. Because the proceedings themselves are not so forlorn as to deserve dismissal on the basis of them wanting reasonable prospects of success, it could not be said, for the reasons I have already given, that they should be found to be an abuse of process.

THE CONTENTIONS

11        Ms Sharp, counsel for the University, submitted that the Federal Magistrate had narrowly construed the word “default” in Rule 13.03B (as defined by Rule 13.03A(1)) of the FMC Rules and consequently failed to properly exercise his discretion under that Rule. In particular, Ms Sharp submitted that this definition applied to a failure to comply with a court order simpliciter and did not add any qualifying condition such as that the order must be: “necessary for the forward conduct of the matter”. Further, she submitted that his Honour had failed to take into account the history of the proceedings and the case management principles set out in s 42 of the FMC Act and the object of the FMC Rules, particularly Rule 1.03(1).

12        The aspects of the history of these proceedings Ms Sharp submitted the Federal Magistrate had failed to take into account, were:

(a)    the fact that 7 years has elapsed since the underlying proceedings were commenced and that the First Respondent had still not filed her evidence in chief:

(b)    the lack of any satisfactory explanation by the First Respondent for her default;

(c)    the numerous unmeritorious interlocutory applications made by the First Respondent;

(d)    the First Respondent’s inability to confine her case and the presumptive and actual prejudice caused to the appellant by that failure.

She also submitted that the history of the matter will “always be relevant” relying upon the Full Court decision in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 (Lenijamar) at 396–7. In relation to the case management principles, Ms Sharp relied upon the decision of the New South Wales Court of Appeal in Bi v Mourad [2010] NSWCA 17 (Bi).

13        As to the abuse of process ground, Ms Sharp submitted that the reasons for decision of the Federal Magistrate demonstrated that he had proceeded on the basis that the categories of abuse of process were limited to those where a party was deliberately vexatious, or oppressive to another party, or where there were no prospects of success in the proceedings whatsoever. Ms Sharp submitted that this was inconsistent with numerous authorities that held the categories of abuse of process are not closed. Instead, she submitted that the Federal Magistrate should have proceeded to assess whether the proceedings were causing injustice or unfairness to the University, including the delay that had occurred in Ms Huang prosecuting the underlying proceedings and the oppressive manner in which she had conducted them. On the former, she submitted that the incident occurred about 10 years ago and the complaint was lodged about eight years ago. She submitted that Mr Abayawickrama had left Australia and returned to Sri Lanka and other potential witnesses may be difficult to locate. She submitted that the school at which Ms Huang and Mr Abayawickrama were students had since closed down and there was no copy of the pornographic material that Ms Huang alleged Mr Abayawickrama had shown her. On the latter, Ms Sharp pointed to Ms Huang’s failure to confine her claim within bounds, the bold and sometimes scandalous assertions she often made from the Bar Table, the numerous unnecessary applications she had made and the significant amount of legal costs the University had been required to devote to the proceedings. Finally, there is the submission about the alleged weakness of Ms Huang’s case set out at [3] above.

14        Mr Chia, counsel for Ms Huang, submitted that the Federal Magistrate had clearly dealt with the University’s application on the basis that Ms Huang was in breach of the Court’s orders of 31 July 2010. Therefore, he submitted the question was not whether Ms Huang was in default under Rule 13.03B, but rather whether the Federal Magistrate was correct in concluding that the failure to file the affidavit evidence in addition to the evidence that had already been filed, was “not the sort of default which justifies dismissal of the matter”. Mr Chia pointed out that Ms Huang’s default in complying with the order of 31 July 2010 was her only default of an order in the proceedings thus far and the University could not, therefore, point to any history of default of the kind identified by the Full Court in Lenijamar. Mr Chia submitted that in a case where there was no prior history of non-compliance with court orders, the Federal Magistrate was correct in reasoning that he should not dismiss the proceedings where the default did not involve an order that required some forward conduct of the matter.

15        On the incidents of delay relied upon by the University, Mr Chia submitted that the Federal Magistrate had clearly taken into account the history of the matter. He submitted the fact that the Federal Magistrate may not have pointed to the same matters as the University, did not demonstrate that his Honour had not done so. Further, Mr Chia submitted that the fact that the Federal Magistrate may not have mentioned s 42 of the FMC Act did not mean that his Honour had not taken into account case management principles in deciding not to dismiss the proceedings. In any event, he submitted s 42 required that the Court “must endeavour to ensure the proceedings are not protracted” and this is to be contrasted with the more onerous burdens visited on the Court by ss 56–60 of the Civil Procedure Act 2005 (NSW), viz must have regard to the “just, quick and cheap resolution of the real issues in the … proceedings” which were the subject of the decision in Bi.

16        As to the abuse of process ground, Mr Chia submitted that the history of these proceedings did not demonstrate that Ms Huang had been responsible for any delay amounting to an abuse of process. He pointed out that the delay in serving the application on Mr Abayawickrama prior to 2008 was not brought about by any default on the part of Ms Huang. On the other hand, he pointed out that Mr Abayawickrama was held by the Federal Magistrate (see [2008] FMCA 1407 at [20]) to have been aware of the proceedings before 2008 and, despite numerous emails and letters being sent to him in Sri Lanka, he did not enter an appearance in the proceedings until 27 August 2010. Further, Mr Chia submitted that soon after the University was joined as a party in these proceedings in 2008, Ms Huang had filed and served six affidavits on it containing the material upon which she wished to rely.

17        Mr Chia accepted that the categories of abuse of process are not closed, but he submitted that the University is still required to establish sufficient prejudice to justify the Court summarily dismissing Ms Huang’s proceedings. He pointed out that Mr Abayawickrama had now filed a response in the proceedings (on 27 August 2010) and had also filed an affidavit setting out his version of the events (on 19 January 2011). He submitted that there was no evidence that any material witness had died, or could not be located through reasonable effort. He also pointed out that when the proceedings were commenced in 2004, subpoenas were issued to the University and all the relevant documents were gathered and produced by it, so all those documents are available to be used in the proceedings.

18        Finally, Mr Chia pointed to the observations in various decisions about the need for a court to assist a party who is self-represented while at the same time not giving any undue advantage to that party. In this case, he submitted, the Federal Magistrate had properly taken into account Ms Huang’s psychiatric difficulties, the fact she is not a lawyer and that English is not her first language. It followed, so he submitted, that the University’s complaints about Ms Huang’s inability to confine her claim, or her propensity to make bold assertions were manifestations of her difficulties described above, rather than any evidence of oppression of the University.

NO ERROR IN TREATMENT OF MS HUANG’S DEFAULT OF 31 JULY 2010 ORDER

19        It is patently clear, in my view, that the Federal Magistrate dealt with the University’s application on the basis that Ms Huang was in default of the order of 31 July 2010. His Honour said at [4] (see at [9] above) that: “The fact that the applicant took until last week to file a further affidavit is, undoubtedly, a breach of the order made on 31 July 2010 …” There is, therefore, no merit in the University’s submission that the Federal Magistrate misconstrued the definition of default in Rule 13.03A(1) of the FMC Rules.

20        Turning, then, to Rule 13.03B of the FMC Rules, it provides:

(1)    If an applicant is in default, the Court may order that:

(a)    the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

(b)    a step in the proceeding be taken within the time limited in the order; or

(c)    if the applicant does not take a step in the time mentioned in paragraph (b) — the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

21        The use of the word “may” in this Rule shows it is a discretionary provision. To succeed in an appeal against a judgment made under such a discretionary provision, the University must show that the Federal Magistrate erred by acting on a wrong principle, or by taking into account extraneous or irrelevant considerations, or by failing to take into account material considerations: see House v The King (1936) 55 CLR 499 at 505 and Welsh v Digilin Pty Ltd (2008) 250 ALR 13; [2008] FCAFC 149 at [16].

22        Furthermore, the Federal Magistrate’s judgment was one relating to matters of practice and procedure: it is well-established that an appeal court should exercise caution in considering whether or not to interfere with such judgments: see In re The Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 per Jordan CJ and Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 177.

23        The content of the discretion involved in a provision like Rule 13.03B was identified by the High Court in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [19] as follows:

“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

24        On its face, Rule 13.03B is not in the latter category: it does not require the formation of any particular opinion or value judgment as a prerequisite for a decision under it. Instead, it falls into the former category: it is one of those provisions that is confined only by the subject matter and object of the legislation which confers the discretion.

25        The University relied upon the Full Court decision in Lenijamar and the observation in that decision that the history of a matter will “always be relevant”. In that case, the Court considered the equivalent provision in the Federal Court Rules, viz O 10. That Rule was in similar terms to Rule 13.03B (see at 395). The following observations about O 10 are therefore apposite to Rule 13.03B (at 395–6): “There is no requirement of intentional default or contumelious conduct … There is no requirement of ‘inordinate and inexcusable delay’ on the part of the applicant or the applicant’s lawyers … There is no requirement of prejudice to the respondent ….” Following these observations, the Full Court went on to describe O 10 in these terms (at 396): “The discretion conferred by [it] is unconfined, except for the condition of non-compliance with the direction.” Noting that it was impossible in those circumstances to provide an exhaustive statement of the situations where the Rule might appropriately be exercised, the Court identified “two situations [as] obvious candidates”. They were:

1.    “cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period”; and

2.    “cases … in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent”.

26        The Court’s observations about the history of the matter always being relevant (see Ms Sharp’s submissions at [12] above) was made in this context. It was not a comment made at large. It is, therefore, quite significant in this case (as Mr Chia pointed out in his submissions: see at [14] above) that, apart from Ms Huang’s default in relation to the order of 31 July 2010, which was the sole ground for the University’s application for dismissal, there is no other history of default on her part in relation to any other order of the Court. There is also no history of any continuing non-compliance or default on Ms Huang’s part. Since neither of these situations identified by the Full Court in Lenijamar arises in this case, when the “always be relevant” observation in Lenijamar is considered in its proper context, it rather supports Ms Huang’s case.

27        Somewhat surprisingly, despite the fact that the University expressly relied upon Lenijamar, it did not actually point to either of the two situations of default specifically identified by the Court in that decision (see at [25] above). Instead, it pointed to the four matters set out at [12] above. In this respect, I consider the University has taken the “always be relevant” observation in Lenijamar out of context. Nonetheless, I will turn to consider the four matters upon which the University has relied. The first, that in para (a), is, I consider, a distortion of the true history of these proceedings. It completely ignores the Federal Magistrate’s findings that Ms Huang had filed affidavits on 16 April 2008 addressing both liability and quantum issues in these proceedings and: “in which she set out the essence of her claim, at least in one of its iterations”: see the reasons at [4] in [9] above. It also ignores the fact that the University was not brought into these separated proceedings until 2008. The second, the matter in para (b), is a matter that the Federal Magistrate could well have taken into account but, as noted above, there is no provision in Rule 13.03B that required him to do so. In those circumstances, no error is demonstrated by his Honour in not doing so. Finally, as to the matters in paras (c) and (d), they may be relevant to the abuse of process ground, but I do consider they have any bearing on this default ground. For these reasons, I do not consider the Federal Magistrate made any error in not relying upon any of the four matters identified by the University as being relevant to the history of these proceedings.

28        As to the University’s claim that the Federal Magistrate failed to have regard to the case management principles in s 42 of the FMC Act, that section provides: “In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.” This provision required the Federal Magistrate to avoid undue formality and delay. It is, as Mr Chia correctly submitted (see at [15] above), quite different to the provisions of the Civil Procedure Act 2005 (NSW) considered in Bi. That decision, therefore, provides no assistance in construing this provision. In any event, while he did not expressly mention s 42 of the Act, I consider the Federal Magistrate plainly did have regard to the need to avoid delay when his Honour described the nature and effect of Ms Huang’s default in relation to the order of 31 July 2010 as not being “one which is necessary for the forward conduct of the matter”.

29        Otherwise, it is quite apparent from the Federal Magistrate’s reasons for decision (at [9] above) that his Honour took into account a range of matters that he considered to be material to the exercise of his discretion not to dismiss Ms Huang’s proceedings because of her default in relation to the order of 31 October 2010. In my view, none of these matters demonstrates an error of principle, or is an irrelevant consideration, nor do they demonstrate any failure to take into account any material consideration. They included (see at [9] above):

(a)    The purpose of the order of 31 July 2010 – at [3]:

However, it should not be overlooked that the orders made on 31 July 2010 were ones which ordered that the question of whether or not the alleged acts of sexual harassment occurred should be determined as a separate question. Until that point, all matters were on the table and the matter was proceeding to a hearing on all issues. Consequently, the affidavits which the applicant had filed earlier in the proceedings were addressed not only to liability, but also to quantum.

The actual order provided that the following questions were to be considered separately:

(a)    Did the respondents breach the Sex Discrimination Act 1984 as alleged by the applicant?

(b)    If the first respondent is found to have breached the Sex Discrimination Act 1984 as alleged by the applicant, does the second respondent have any liability to the applicant for such conduct of the first respondent?

(b)    The pertinent aspect of the history of the matter insofar as it affected the University – at [3]:

In this connection, regard should be had to the applicant’s affidavit filed on 16 April 2008 in which she set out the essence of her claim, at least in one of its iterations.

(c)    The effect of the orders of 31 July 2010 – at [4]:

[A]t the end of the day, if the applicant wishes to file further affidavits in support of her case or does not wish to file affidavits in support of her case that is a matter for her.

In this regard, the particular part of the orders of 31 July 2010 was in the following terms:

3.    The applicant file and serve any affidavits on which she will rely on or before 29 October 2010.

(Emphasis added)

(d)    The nature and effect of Ms Huang’s default – at [4]:

Orders dismissing proceedings for default in compliance with earlier orders of the Court should only be made where the step which is required to be taken is one which is necessary for the forward conduct of the matter, whether that be the necessity for a respondent to file a response and a supporting affidavit, for a party to give discovery, answer interrogatories or something of that sort. A default of that nature may, in certain circumstances, justify the Court in dismissing a matter summarily. However, the fact that an applicant has failed to file evidence in addition to what she has already filed is not the sort of default which, in my view, justifies dismissal of the matter.

30        Taking into account all these matters, I do not consider there is any merit in the University’s complaint that the Federal Magistrate erred in exercising his discretion not to summarily dismiss Ms Huang’s proceedings under Rule 13.03B of the FMC Rules.

NO ERROR IN REJECTING ABUSE OF PROCESS GROUND

31        Turning then to the abuse of process ground, it relies upon Rule 13.10(c) of the FMC Rules, which is as follows:

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

…

(c)    the proceeding or claim for relief is an abuse of the process of the Court.

32        Like Rule 13.03B of the FMC Rules, this is a discretionary provision. It follows that all of the observations above (at [21]–[24]) about the operation of such provisions and the constraints on an appeal court, when considering an appeal involving them, are apposite on this ground.

33        It is also important to note that it is well-established that the power to dismiss a proceeding for abuse of process should be “very sparingly exercised and only in exceptional cases”: see Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J (as he then was).

34        I will deal first with Ms Sharp’s submissions that the alleged weakness of Ms Huang’s case should be taken into account as part of the assessment whether her proceedings amounted to an abuse of process: see at [3] above. There are at least two reasons why it is particularly difficult, if not impossible, to make any such assessment in this case. The first arises from the fact that Ms Huang has represented herself before the Federal Magistrates Court. She has no legal training and it has become quite apparent that, since her pro bono counsel has become involved in this appeal, she has, perhaps not surprisingly, failed to identify the various ways in which the University may be liable under the Sex Discrimination Act 1984 (Cth) (the SD Act) and, accordingly, failed to direct her allegations and her evidence to those possible grounds of liability.

35        The second compounds the first. That is, that these proceedings have not been conducted on pleadings in the Federal Magistrates Court. Thus, Ms Huang’s has not been required to identify those causes of action she is pursuing under the apposite provision of the SD Act and what material facts she seeks to rely upon to establish those causes of action. One consequence of this lack of pleadings is that any assessment of Ms Huang’s prospects of success has to be directed to the material she has filed in the Federal Magistrates Court to date, which essentially reduces to the assertions she has made in various affidavits she has filed.

36        In Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 (Rana), Lander J dealt with an appeal against a decision of a Federal Magistrate to strike out claims brought by the appellant under the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). In that decision, his Honour pointed out that the Federal Magistrates Court had been established to deliver justice to parties before it without undue formality or protraction and at a lower cost (see at [25]). Consistent with this philosophy, his Honour noted that the FMC Rules require a person filing an application to file an affidavit stating the facts relied upon for the orders sought and do not provide for pleadings: see at [28]–[35]. These features of the Federal Magistrates Court led his Honour to observe (at [37]) that:

The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice. It is a court which should proceed without undue formality and should ensure that the proceedings are not protracted: s 42. It has abandoned the formal procedures of superior courts. That course is consistent with the Act and the FMC Rules.

37        After noting that affidavits perform quite a different function to pleadings (see at [38]), his Honour concluded that part of his reasons for judgment with the following observations that are apposite in this case (at [41]):

Often a cause of action will not be so easily recognised where an affidavit accompanies an application. The material facts which go to constitute the cause of action will not be identified. Instead, the evidence to prove those material facts will have to form the structural platform upon which the proceedings are conducted. Because the FMC Rules do not require the applicant to file all of his/her evidence with the application, in many cases, the applicant’s cause of action may not be completely made out by the applicant’s affidavit filed pursuant to r 4.05. It may be that the cause of action cannot be precisely identified until all the evidence is in.

38        Lander J then referred to the circumstances of the appeal before him, after which his Honour returned to the consequences that flowed from the lack of formality and pleadings in the Federal Magistrates Court as follows (at [73]):

The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action. That is for the reasons already mentioned. There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. The applicant is not obliged to file all affidavit evidence with the application, but only an affidavit which need not be the applicant’s. It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant’s evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial.

39        And further (at [75]):

In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim.

40        I respectfully agree with, and adopt, these observations. Applying them in this case, I reject the University’s submission that I can make any valid assessment of the strength or weakness of Ms Huang’s case against the University for the purposes of taking that matter into account in considering whether the Federal Magistrate erred in not dismissing Ms Huang’s proceedings as an abuse of process. All of the reasons why this is so were identified by Lander J in Rana. They include: the lack of pleadings, the use of affidavits and the fact Ms Huang has been self-represented in the proceedings before the Federal Magistrate.

41        Apart from the strength or weakness of Ms Huang’s case, the University claims that the Federal Magistrate made an error of principle in proceeding on the basis that the categories of cases of abuse of process were closed. Ms Sharp submitted this flowed from the observations at [13] of his Honour’s reasons (see at [10] above). In my view, this submission misconstrues what the Federal Magistrate said in that paragraph. On a fair reading of it, I do not consider his Honour said that abuse of process was confined to the categories where the proceedings “are deliberately vexatious to a party, deliberately oppressive of a party or have no prospects of success whatsoever”. Instead, I consider his Honour was attempting to convey a sense of the kind of conduct that may constitute an abuse of process. The fact that his Honour did not intend those kinds of conduct to be taken as closed categories of abuse of process is demonstrated by the next sentence, where his Honour identifies the relitigation of an issue previously determined, as a further possible kind of conduct constituting abuse of process. For these reasons, I reject the University’s contention that the Federal Magistrate made an error of principle in this regard.

42        Otherwise, the University has relied upon the injustice or unfairness that has been occasioned to it by Ms Huang’s delay in prosecuting her claims, the possible loss of witnesses and available evidence, and Ms Huang’s conduct in failing to confine her claims within bounds, making scandalous allegations at the Bar Table, making numerous unnecessary applications and generally causing a great deal of costs and inconvenience to the University.

43        The difficulty with this submission is that it ignores the fact that the Federal Magistrate had an unconfined discretion to exercise. That is, that there is nothing in Rule 13.10 that prescribes what considerations the Federal Magistrate had to take into account in deciding whether to dismiss proceedings as an abuse of process. Moreover, it is apparent from his Honour’s reasons that he carefully identified, and then assessed, the countervailing considerations affecting the decision he had to make. It is clear from [12] of his Honour’s reasons for decision (see at [10] above) that he took the trouble to identify various aspects of Ms Huang’s conduct in the proceedings that could be regarded as “abusive”. He then turned (at [13] of his reasons: see at [10] above)) to identify other matters that were peculiar to Ms Huang that, whilst not excusing her conduct, did tend to explain it. His Honour then weighed up all these considerations and decided that he should not dismiss Ms Huang’s proceedings as an abuse of process. Thus, the process the Federal Magistrate followed did not, in my view, fall foul of any of the bases upon which an appeal court could interfere with his decision. There is no demonstrated error of principle, there was no failure to take into account relevant considerations, and there were no irrelevant considerations taken into account. In short, the University has not pointed to any reason why this was one of those exceptional cases that should have been dismissed by the Federal Magistrate as an abuse of process. For these reasons, I do not consider the University has established any error in the Federal Magistrate’s discretionary decision refusing to strike-out Ms Huang’s proceedings as an abuse of process.

CONCLUSION

44        In summary, for the reasons set out above, I do not consider there is any merit in either of the University’s two remaining bases of complaint against the Federal Magistrate’s judgment. I do not consider the Federal Magistrate made any appealable error in dealing with Ms Huang’s default of the order of 31 July 2010. Nor do I consider there is any appealable error in his Honour’s conclusion not to dismiss Ms Huang’s proceedings as an abuse of process. On both aspects, the Federal Magistrate had an unconfined discretion to exercise and the University has failed to demonstrate any relevant error in the discharge of that discretion. The University’s appeal against his Honour’s judgment must therefore be dismissed.

Associate:

Dated:    27 March 2012