FEDERAL COURT OF AUSTRALIA

Huang v Abayawickrama [2012] FCA 1504

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The appellant pay the second respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

1    This is an application for leave to appeal from a decision of the Federal Magistrates Court to dismiss, as an abuse of process and because of her default, Hong Cui Huang’s proceedings against both the University of New South Wales and a former student and employee of the University, Chaminda Abayawickrama. Ms Huang had represented herself before the trial judge. She had asked her Honour to disqualify herself for bias. In a separate judgment delivered contemporaneously with the judgment ordering dismissal of Ms Huang’s proceedings, the trial judge also refused to disqualify herself. Her Honour dismissed the proceedings against the University on the grounds that they were an abuse of process, pursuant to r 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth), and also by reason of Ms Huang’s default pursuant to r 13.03B(1). Her Honour also dismissed the proceedings against Mr Abayawickrama as an abuse of the process of the Court, although Mr Abayawickrama had not applied for that relief and was not involved in a meaningful way in the proceedings.

The basis of the application for leave to appeal

2    Ms Huang was represented by counsel before me. She sought to raise six grounds as the basis of the appeal which she sought leave to bring. The first two grounds contended that, in bringing its application to her Honour on the ground of abuse of process, the University itself had committed an abuse of process and was estopped from relying on that ground. That was because it had litigated a similar contention earlier in the same proceedings before Cameron FM in 2011 and he had dismissed it. Justice Reeves dismissed an appeal by the University from that decision on 27 March 2012: University of New South Wales v Huang [2012] FCA 308, as a consequence of which the matter was remitted to the Federal Magistrates Court and put into her Honour’s docket. The second substantive basis on which leave to appeal was sought, contained in ground 3, was that her Honour erred in finding that the proceeding was an abuse of process.

3    The third basis, in grounds 4 and 5 was that her Honour erred in not recusing herself, by reason of a reasonable apprehension of bias. Ms Huang also sought to raise at the beginning of the hearing today a further ground of appeal that had not been foreshadowed previously. That ground was that her Honour was wrong to have dismissed the proceedings in the exercise of her Honour’s discretion on the basis that Ms Huang had committed a default or defaults in the conduct of the proceedings.

The circumstances of the recused grounds

4    It is necessary to say something about the basis of the recusal grounds both before her Honour and as sought to be put in this application. Counsel for Ms Huang put three arguments in support of why, he asserted, her Honour gave rise to a reasonable apprehension of bias. The first basis on which he contended that her Honour should have come to that conclusion was not the basis which it was put to her expressly by Ms Huang, but on a substantively different basis.

5    Ms Huang had made her written applications for recusal without giving any particularisation of how she contended her Honour had given rise to a reasonable apprehension of bias. She asserted to the trial judge that her Honour had prejudged the matter by saying that Ms Huang had “no prospects of success”. Ms Huang asserted that her Honour made such a statement on a number of occasions. However, as her counsel recognised, her Honour never said anything of the kind. Ms Huang had made repeated applications that her Honour appoint counsel to act for her pro bono. Her Honour responded by saying that “… at the moment I do not see [your case] as having reasonable prospects of success” or on other occasions with statements to similar effect. Counsel now sought to argue that because she had made those statements, her Honour should have recused herself. He sought to argue that new ground, that had not been put to her Honour in the recusal application, was open now under the umbrella of the assertion in Ms Huang’s application to her Honour of “apprehension of bias.” He contended that her Honour should not have said, in effect, that at the time she did not think Ms Huang’s case had reasonable prospects of success sufficient, in effect, to justify the appointment of pro bono legal representation.

6    The context for the trial judge’s observations was as follows. Ms Huang alleged that the University had a vicarious liability for Mr Abayawickrama’s conduct which Ms Huang claimed amounted to unlawful sexual harassment. Her Honour asked her how that could be so. Ms Huang replied that he had shown her a pornographic image on a computer screen on one of the University’s computers. When her Honour asked Ms Huang how she put her case against the University in that situation, Ms Huang explained that the University should have had a supervisor in place to supervise the students and others to control their use of its computers at all times: i.e. 24 hours per day, at all places in the University, in all situations. It is unsurprising that her Honour found that contention to lack the appearance, without more, of reasonable prospects of success.

7    The second basis on which Ms Huang sought to assert that her Honour had given the appearance of a reasonable apprehension of bias was as follows. Ms Huang had commenced these proceedings against Mr Abayawickrama alone in 2004 and the University came to be added as a party in 2008. Her Honour engaged in an exchange with counsel for the University discussing limitations on how much evidence the University would be allowed to adduce in the trial. The University foreshadowed that it might need to lead extensive evidence to meet the substantive claim by Ms Huang that she had been subjected to “a sexually charged workplace environment” and that she had been sexually harassed by other employees of the University, apart from Mr Abayawickrama. Counsel for the University contended to her Honour that Ms Huang was seeking to re-litigate in that claim allegations in respect of two other employees of the University that had been decided against her in proceedings before Driver FM. Her Honour observed that presumably counsel would “take a particular course in relation to that evidence”. When counsel assented to that proposition, her Honour observed that it would not be necessary to go back to the 1999 allegations that Ms Huang had raised. Her Honour observed that the conduct of which Ms Huang complained and which remained in issue, had commenced in 2001.

8    The third way in which Ms Huang’s counsel sought to assert that her Honour was apparently biased was based on a reading of the transcript. He argued that this showed that when Ms Huang repeatedly interjected and disobeyed her Honour’s attempts to control the conduct of the proceedings and have Ms Huang remain silent while counsel for the University was addressing her, her Honour supposedly lost her temper.

9    The occasion recorded in the transcript occurred in circumstances where, after a considerable number of warnings that Ms Huang should remain silent and stop interrupting, as she plainly had been on a fair reading of the transcript, her Honour told Ms Huang that if she continued, she would be removed from the Court. Ms Huang ignored her Honour’s warning and her Honour, in order to control the proceedings, had her removed for a short time.

Consideration of new grounds not put below and grounds 4 and 5

10    I refused the application to add the new ground and to allow counsel to continue to develop the ground relating to the argument of apprehension of bias that went beyond what had been put to her Honour in support of that claim. It is essential to the administration of justice that a distinction is kept firmly in mind between proceedings at first instance and on appeal. In Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ said that:

“To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

Their Honours then cited with approval what six justices had said in University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483 in the following passage (162 CLR at 8):

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”

11    I consider the arguments on the new ground and the assertion of bias that was not put to her Honour, to be of no substance. Her Honour correctly rejected Ms Huang’s application that she recuse herself because that was put on a misconceived premise. Contrary to Ms Huang’s assertion, her Honour never said that the case had no prospects of success. Accordingly, Ms Huang’s complaint of apprehension of bias failed at the threshold.

12    As I have already held, the new way in which counsel for Ms Huang sought to argue that her Honour should have recused herself was never put by Ms Huang to the trial judge. In any event, the new argument is equally without merit. Her Honour merely observed, as was unarguably correct, that given the way Ms Huang had put the substance of her case on 30 March 2012, that case did not have sufficient prospects of success to justify the appointment of a pro bono lawyer. That was not an indication from which a reasonable person in the position of an observer of the proceedings would have concluded that there was any apprehension that her Honour would not bring an impartial mind to the resolution of the issues.

13    It is important to remember that in the course of litigation, judges can and do express tentative views. In Johnson v Johnson (2000) 201 CLR 488 at 493 [13] on which Ms Huang relied in argument, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted that the rules of natural justice, including those that went to the possibility of a fair-minded person apprehending that the judge might be biased had to be considered in the context of ordinary judicial practice. Their Honours continued:

“The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly (1989) 167 CLR 568 at 571) Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case’ (see also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15; 32 ALR 47 at 53, per Murphy J). Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”

14    So much appears to have been the case on the occasions complained of by Ms Huang, although Ms Huang was not counsel. Her Honour appeared to have expressed tentative opinions on matters in issue in the exchanges between her Honour and Ms Huang, on the question of whether her Honour would or should appoint a lawyer to appear for her pro bono, and counsel for the University on the question of the evidence the University was to adduce. Her Honour’s remarks fell within the acceptable range of remarks referred to in the passage I have quoted above from Johnson 201 CLR at 493 [13].

15    Although Ms Huang was assisted by counsel in preparing an affidavit in support of the application for leave to appeal, she gave no evidence on any matter to support the suggestion that her Honour had lost her temper. Counsel argued that such conduct could be inferred from reading the transcript. I disagree. Reading the transcript demonstrates that Ms Huang was plainly intent on ignoring her Honour’s attempts to control the proceedings, refused to listen to her instructions not to interrupt her Honour and counsel for the University and continually sought to do so.

16    To my reading, her Honour’s conduct of what was obviously a difficult hearing, appeared to be restrained and appropriate. Faced with a continuation of the repeated interruptions she was given little choice by Ms Huang but to have her removed for a short time so that she might learn to obey the orders of the Court rather than defy them.

17    Counsel also argued that her Honour should have adjourned the proceedings. Given that this was in a directions list in which there were other litigants and on an occasion in which the University was represented by counsel instructed by a solicitor, it is difficult to understand why the University should have borne a further set of costs because a litigant chose to defy the Court’s appropriate and reasonable attempts to control and regulate the orderly conduct of the proceedings. As her Honour said, “Ms Huang is a seasoned litigant”. She had been, at least, in proceedings before Driver FM and in the proceedings before her Honour for a considerable time.

18    It follows that the grounds that alleged that her Honour should have recused herself have no prospect of success and are without substance.

The background for proposed grounds 1 and 2

19    After the proceedings had been remitted to her Honour, earlier this year, she sought to apply some active case management. Justice Reeves had noted that during the nearly eight years to that time, Ms Huang’s proceedings in the Federal Magistrates Court had not been conducted on pleadings. He said that as a result Ms Huang had not been required, up to that point, to identify those causes of action she was pursuing under the Sexual Discrimination Act 1984 (Cth) and the material facts she sought to rely upon to establish those causes of action. His Honour observed that a consequence of this lack of pleadings was that any assessment of her Ms Huang’s prospects of success had to be directed to the material she had filed in the Court below, to date, which essentially reduced to assertions she had made in the various affidavits she had filed: Huang [2012] FCA 308 at [35]. Her Honour directed herself to that question and sought to clarify what the real issues were in the course of the directions hearings.

20    Federal Magistrate Cameron and Reeves J had also found that Ms Huang had committed a default in compliance with an order made by Cameron FM on 31 July 2010 because she had only filed affidavits, on 24 March 2011, five months later than provided for in that order: Huang v Abayawickrama [2011] FMCA 235 at [4], and on appeal, [2012] FCA 308 at [7], [26]-[35].

21    The first two proposed grounds of appeal asserted that her Honour erred because she did not find that the University was estopped from first, raising a claim that the proceedings at the time they were before her Honour were an abuse of process and secondly from placing any reliance on that earlier default by Ms Huang in compliance with the order of 31 July 2010. In addition, Ms Huang contended that because of the findings by Cameron FM and Reeves J on the University’s earlier application, the University could never again assert that the proceedings were subsequently being conducted as, or amounted to, an abuse of process. Ms Huang argued that a mere minor change in the facts would not get round an issue estoppel created by Cameron FM’s earlier decision, based on DA Christie Pty Ltd v Baker [1996] 2 VR 582, particularly at 604 per Hayne JA.

Consideration – proposed grounds 1 and 2

22    In my opinion, that decision is distinguishable. It is clear that the categories of abuse of process are not closed. An application that proceedings be dismissed as an abuse of process is interlocutory: Re Luck (2003) 203 ALR 1 at 4 [9]-[10]. There McHugh ACJ, Gummow and Hayne JJ held that an order staying or dismissing an action or refusing leave to commence or proceed with an action because it is frivolous, vexatious, or an abuse in the process of the Court or does not disclose a reasonable cause of action, is interlocutory.

23    In my opinion, the same position necessarily must apply where the action is allowed to continue. That is to say, the decision to reject, for example, an application to dismiss proceedings as an abuse of process is interlocutory and so does not finally decide rights. Nor can it decide that, no matter what happens later, that the continued proceedings can never be an abuse of process. Of course, the decision that the conduct of the proceedings up to the time at which Cameron FM decided the application of the University in March 2011 could not be re-visited by itself in the proceedings before her Honour and, having regard to Reeves J’s decision, on appeal. But it would be unrealistic to consider that merely because of the prior finding, subsequent conduct of Ms Huang in the proceedings could not be capable of ever amounting to, or being characterised as, an abuse of a process of the Court. So to hold would take out of the Court’s powers to control its own processes and to prevent abuse, a very important inherent or implied power that every Court must possess and continue to possess throughout proceedings before it, notwithstanding that at an earlier stage in litigation it had held that a litigant had not been proved to have conducted the case, or to have been engaged in proceedings which were, an abuse of the process of the Court.

24    To hold to the contrary would fly in the face of the well-known principle adopted by the High Court expressed in Lord Diplock’s speech in Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536: see Walton v Gardiner (1993) 177 CLR 378 at 392-393 and Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93-94 [56]-[58] per French CJ, Gummow, Hayne and Crennan JJ. Courts have an inherent or implied power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of the court, would nevertheless, be “manifestly unfair to a party to litigation or would otherwise bring the administration of justice into dispute among right thinking people”. This does not mean that “abuse of process” is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process merely because it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment: Jeffrey & Katauskas 239 CLR at 93-94 [56]-[58].

25    Ms Huang argued that her Honour had erred in holding that the University’s application before her was not an abuse of the process of the Court and in rejecting Ms Huang’s allegation that the University was bound by an issue estoppel from Cameron FM’s decision and Reeves J’s dismissal of the appeal from Cameron FM’s decision that the University had failed to prove an abuse of process in 2011.

26    In my opinion, that argument has no substance and must be rejected. The Court continues to have power to control its own processes and a party is entitled to seek to invoke the Court’s power to do so at any stage of the proceedings to address what constitutes an abuse of process. This is so even though the same party may have failed earlier to prove abuse of process, if it can subsequently show that later conduct has occurred to create such a situation. That does not mean that a party is entitled to re-litigate the serious assertion of an abuse of process by its opponent at will, every time it chooses to do so, and not face the kind of allegation made by Ms Huang. It simply means that the facts of each particular case must be examined carefully for the purposes of determining whether what is being done is the re-litigation of an issue, namely here, the conduct relied on to found the allegation of abuse of process in the previous application. If the University were so acting that would ordinarily give rise to an issue estoppel preventing it from doing so: Blair v Curran (1939) 62 CLR 464 at 531-533 per Dixon J. That situation is distinct from one in which fresh facts have come to light which, when viewed by the Court, can be seen to warrant its intervention to prevent its processes being abused at that later time.

27    Accordingly, I see no error, let alone any arguable error, in her Honour’s rejection of the propositions in what are proposed to be the first two grounds of appeal.

Background for proposed ground 3

28    There was ample material before her Honour that justified her conclusion that the continuation of the proceedings had become an abuse of the process of the Court, when her Honour gave her decision. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 452 [89], Gummow ACJ, Hayne, Crennan and Bell JJ said:

“As the majority pointed out in Batistatos v Roads and Traffic Authority (NSW) [(2006) 226 CLR 256 at 265 [9] per Gleeson CJ, Gummow, Hayne and Crennan JJ], ‘[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories’. In Ridgeway v The Queen [(1995) 184 CLR 19 at 74-75], Gaudron J noted that the concept extended to proceedings ‘instituted for an improper purpose’, and to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ [Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247] or ‘productive of serious and unjustified trouble and harassment’ [Hamilton v Oades (1989) 166 CLR 486 at 502]. In Rogers v The Queen, McHugh J concluded [(1994) 181 CLR 251 at 286] that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: ‘(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute’.”

29    In essence, the University’s application to her Honour was based on the second and third of those categories. Her Honour found that, over the years, the Federal Magistrates Court had endeavoured to give Ms Huang every opportunity to identify the juridical basis of her case and to file evidence in support of her application to set the matter down for hearing. She found that, at almost every turn, Ms Huang had filed some further interlocutory application, required the Court to deal with it and caused needless delay. There had been 35 court events in the proceedings, although, some of those had occurred before the University became a party. Her Honour found that Ms Huang’s numerous interlocutory applications had no purpose other than to prolong the case. She said that Ms Huang had continued to complain throughout all the directions hearings and the hearing of the interlocutory applications before her Honour that the Court had refused to provide her, that is, Ms Huang, with a pro bono lawyer. Her Honour noted that Ms Huang would neither listen nor attempt to absorb or understand that she had no right to such assistance and that the Court could not order a lawyer to appear for her.

30    Her Honour attempted to provide an appropriate modicum of case management in order to bring the proceedings to a final hearing. Mindful of what Reeves J had said, she had directed, on 30 March 2012, that the proceedings continue by way of pleadings. At that directions hearing, her Honour directed that a fully particularised statement of claim, in accordance with the Federal Magistrates Court Rules, be filed by Ms Huang no later than 28 April 2012.

31    At the directions hearing on 30 March 2012, Ms Huang had also told her Honour that the substance of her complaint was that she had been required to work in a “sexually charged environment”. Ms Huang then asserted that while she was a student, Mr Abayawickrama and another student had shown her pornographic material on one of the computers at the University. Ms Huang explained to her Honour that because Mr Abayawickrama was using a University computer in its premises it had a duty to supervise his, and every other person’s, use of the University’s computers under the Sexual Discrimination Act. That duty was breached, so Ms Huang said, because Mr Abayawickrama allegedly showed her pornographic images on the computer and, accordingly, the University discriminated against her because of her sex. Ms Huang told her Honour, as she recorded in the judgment, that the University had required security passes and codes for the use of computers. Her Honour asked Ms Huang what more the University could have done, to which she gave the response that it should have provided 24 hour supervision of all computers in its premises.

32    On 27 April 2012, Ms Huang filed a 40 page single-spaced document entitled “Particularised Statement of Claims”. Her Honour found that it was a document that plainly did not comply with the requirements in the Rules in respect of either the formalities of a statement of claim or the form of a document filed in a Court proceeding. It was a lengthy document with long rambling sentences of up to 30 lines long, replete with “a prolix mixture of assertions, submissions, quotations from legislation and unnecessary”, and what her Honour described as, “often condemnatory, commentary”. Her Honour found that: “[i]t was put together in an incoherent and random fashion that, as a pleading, was embarrassing.” It contained allegations against persons who were not parties to the proceedings but against whom Ms Huang had brought other proceedings, some unsuccessfully.

33    Her Honour recorded the distillation, formulated by counsel for the University, of Ms Huang’s complaints in the statement of claim. Her Honour held that four of those complaints went far beyond what Ms Huang had said to her Honour was her case at the directions hearing on 30 March 2012 and beyond what was in her affidavit filed as long ago as 23 September 2004 in support of her original initiating application against Mr Abayawickrama alone. Her Honour found that because of the incomprehensible and garbled nature of the statement of claim, she could not be certain whether counsel’s attempt at distilling the complaints against both respondents was correct.

34    At the directions hearing on 7 May 2012, her Honour directed Ms Huang to file and serve by 3 July 2012, by way of affidavit, any evidence on which she relied. Her Honour directed that any such affidavits be no more than 10 pages long excluding annexures. Her Honour also found that Ms Huang had defaulted in complying by 3 July 2012 with this order. In fact, what Ms Huang attempted to do on that day was to file a 90 page long affidavit with 407 pages of annexures. The length of the text of that affidavit, being 90 pages was plainly in defiance of her Honour’s order limiting, as she was entitled to do, under s 51 of the Federal Magistrates Act 1999 (Cth), the length of any document.

35    Her Honour then made these critical findings:

“95.    The defaults of my orders were made by the applicant in the context of the history of her past defaults and the continuing oppressive manner in which she has engaged in this litigation.

96.    The applicant’s oppressive conduct has included: the regular failure to comply with the Court’s orders; her continued interruptions; her irrelevant, baseless and misconceived complaints; her filing of an excessive mass of material over a period of years; her continued unacceptable conduct in Court protracting any directions hearing or interlocutory hearing in which she participates; her propensity to seek to file documents the day before any hearing or at the hearing; her regular failure to listen to or comply with any direction made by the Court; and, her excessive filing of unnecessary and baseless interlocutory applications often immediately before a scheduled Court event or at that Court event. I infer that such conduct is a deliberate tactic by the applicant to delay the final determination of her case.”

36    Her Honour also found that Ms Huang had attempted to evade service of a subpoena issued by the University for the purpose of obtaining evidence in the proceedings, and continued:

“99.    I find that the applicant’s conduct demonstrates an unwillingness to cooperate with the Court and the respondents in preparing the matter for trial within an acceptable period. Her non-compliance of directions made by the Court continues to cause unnecessary delay, expense and prejudice to the respondents. Such conduct is unjustifiably oppressive to the respondents (see Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 452; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388).

100.    Using the Court processes in an unjustifiably oppressive fashion to the respondents brings the administration of justice into disrepute (see Rogers v The Queen (1994) 181 CLR 251 per McHugh J at [53]). In my view, for the applicant to be able to continue her proceeding in light of the way in which the matter has been conducted would bring the administration of justice into disrepute among right-thinking people (see Walton v Gardiner (1993) 177 CLR 378 at 393).

101.    To be an abuse of process the applicant’s conduct must be able to be characterised as something more than unfair to either respondent. However, abuse of process does extend to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’ (see Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75 per French CJ, Gummow, Hayne and Crennan JJ at [28]). The manner in which the applicant has conducted herself in this proceeding is seriously and unfairly burdensome and prejudicial to the respondents and is itself bordering on serious and unjustified trouble and harassment.

102.    The applicant has had many opportunities to simply file her evidence and have her matter heard and determined.

103.    Over the years, as stated above, the applicant has continued to file many excessively lengthy documents that are unclear, prolix, dense and largely incomprehensible. In Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189 at [24], Sully J said as follows:

‘I say again, and say it with emphasis, it is time that all litigants understood that it is no part of the judicial duty to accept an undifferentiated mass of documentary material as though it were a matter of course that the Judge will simply wade through it hoping that, after hours or, in a case of the present kind, days, of reading at large, he will somehow manage to identify correctly what the parties thought they were putting before him in the first place’.”

37    Her Honour also found that Ms Huang was a seasoned litigant before the Federal Magistrates Court. She did not accept that any disorder from which Ms Huang claimed to suffer was a sufficient explanation for her “complete disregard for the manner in which litigation should be conducted”. Her Honour found there had been no credible or adequate explanation given by Ms Huang for her defaults, observing that it was the Court’s function to dispense justice with impartiality and fairness, both to the parties and to the community which the Court serves. She noted that Ms Huang had had 46 days of final hearings in the Federal Magistrates Court against other respondents since she initiated her original proceedings in 2001 against the University, Mr Abayawickrama and others alleging sexual discrimination against her by employees and students of the University.

38    Her Honour found that there had been an excessive number of days spent determining unnecessary and baseless interlocutory applications filed by Ms Huang, and continued:

“107.    I have no confidence that the present matter, if it was to proceed to final hearing, would be able to be confined in the way I have sought to do by my directions given on 7 May 2012. This Court does not have the resources to indulge such an applicant and, indeed, in my view, to indulge such conduct and behaviour would be antithetical to the need to maintain public confidence in the judicial system at large.

108.    It is readily accepted that litigation imposes stress and strain on personal litigants. However, the stress and strain on corporations is now also recognised and accepted at the highest appellate levels in the United Kingdom and Australia (see Reliance Financial Services per Pembroke J at [31]). In Aon Risk Services at [101], their Honours Gummow, Hayne, Crennan, Kiefel and Bell JJ stated as follows:

‘But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effect upon its liability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court’s Procedures Rules, of minimising delay, may be take to recognise the ill-effects of delay upon parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution to their proceedings.’

109.    The applicant has not demonstrated the remotest respect for the rules of litigation or the formalities of the Court. For a person who is well-educated and who has represented herself for eleven years, she has little insight into, and regard for, the importance, relevance and application of Court management principles and directions.”

39    Critically, her Honour found that Ms Huang had had many opportunities to identify her claim and its juridical basis in a proper form, and to file proper and admissible evidence in support. She found that Ms Huang had failed to do so and failed on every other occasion before her Honour to conduct herself in a reasonable or measured way. Her Honour found that Ms Huang had significantly and unnecessarily protracted each Court event before her and the conduct of her case “[had] now become vexatious and is now a clear abuse of the Court’s processes. Her Honour continued:

“112.    There has to be an end to the opportunities given to the applicant to identify a case in accordance with the FMC Rules and to file evidence in support. Those opportunities have been ignored by the applicant. In my view, to allow the continuation of this proceeding against either respondent is so unfairly and unjustifiably oppressive in light of the applicant’s conduct that it constitutes an abuse of process and its continuation is likely to bring the administration of justice into disrepute.

113.    The conclusions I have reached have been made in the context of the history of the applicant’s conduct up until the time that the matter came into my docket as well as the applicant’s conduct before me. As stated above, her conduct of her proceeding is entirely oppressive and I find that she has no genuine desire to bring the matter to conclusion.”

40    Her Honour took into account that the power to dismiss cases summarily ought to be exercised very sparingly and only in exceptional cases but concluded that the proceedings before her fell into that category. Accordingly, her Honour dismissed the proceedings both as an abuse of the process of the Court and by reason of the defaults to which I have referred.

41    Her Honour then went on to dismiss the proceedings against Mr Abayawickrama as an abuse of the Court’s process, having regard to Ms Huang’s general conduct of the proceeding against both respondents, and her findings that Ms Huang would continue to conduct the proceedings in the way she had to up to then so as to protract them, and thus abuse the Court’s processes and delay a final hearing. The trial judge found that she did not have the remotest confidence that Ms Huang’s conduct would be any different if she was allowed to continue her proceedings against Mr Abayawickrama alone. Although Mr Abayawickrama had filed an appearance some time ago, having been served in Sri Lanka where he lived, her Honour directed Ms Huang on 7 May 2012 to serve him with a copy of the orders she had had made that day. Ms Huang did not comply with that order, and her Honour found there was nothing before her to suggest that he was aware of the full mass of material that had been filed in the proceeding by Ms Huang.

42    Her Honour invoked the Federal Court Rules 2011 (Cth) by reason of r 1.05 of the Federal Magistrates Court Rules that provided that that Court could apply the Federal Court Rules where its own rules were insufficient or inappropriate. She applied the power of this Court under r 1.40(a) of the Federal Court Rules to exercise a power mentioned in the Rules on the Court’s own initiative and dismissed the claim against Mr Abayawickrama. Under r 26.01(d) of the Federal Court Rules, a party is allowed to apply to this Court for an order that judgment be given against another party because the proceeding is an abuse of the process of the Court. Her Honour found that the case in relation to Mr Abayawickrama fell within the category of case described in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536.

Ms Huang’s submissions on proposed ground 3

43    Ms Huang’s counsel argued that the only basis upon which her Honour had been invited to proceed to deal with the abuse of process ground was in accordance with the description of proceedings that were vexatious or oppressive given by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 246-247. He argued that the Court had to assess objectively whether an abuse of process was to be found having regard to the proceedings and not by reference to the conduct of the litigant.

Consideration – proposed ground 3

44    In my opinion, that proposition is untenable for the reasons given by Gummow ACJ, Hayne, Crennan and Bell JJ in Michael Wilson 244 CLR at 452 [89]. Their Honours held that use of the Court’s procedures that is unjustifiably oppressive to one of the parties can amount to an abuse, as can use of the Court’s procedures in such a way that would bring the administration of justice into disrepute.

45    Her Honour found that Ms Huang’s conduct amounted to a use of the Court’s procedures that was oppressive. That conduct included Ms Huang’s failure to obey the orders of the Court, her use of Court proceedings inconsistently with the proper conduct of litigation, and, as the trial judge found, Ms Huang’s unwillingness to cooperate with the Court and the respondents in preparing the matter for trial within an acceptable period. All of those features caused undue harassment and delay, and were oppressive to the University. They also brought the administration of justice into disrepute. I agree with her Honour for the reasons she gave.

46    In my opinion, no arguable error was shown in her Honour’s application of the law or in her findings of fact. Ms Huang, as an intelligent woman, was fully aware that a 90 page affidavit was not a 10 page affidavit. There was no excuse for her to have failed to identify in a succinct statement of evidence what her case really was, and to flout the Court’s order by filing a document that no reasonable person could have thought was compliant. Similarly, the 40 page statement of claim, because of the characteristics described by her Honour, was an abuse of the Court’s process as well as a default in pleading the claim in accordance with her Honour’s orders.

47    What her Honour had sought to do at the directions hearings had been to have Ms Huang identify, in an intelligible way, the cause, or causes, of action which she relied on, first by proper pleading of material facts, and secondly by a succinct statement of her evidence in affidavit form. Neither of those objectives was achieved because Ms Huang made no real attempt to comply with her Honour’s directions. There is no purpose in having Court hearings in which a judge makes directions for those directions to be ignored or not complied with, repeatedly. That is what happened here. In Tinkler v Elliott [2013] CP Rep 4; EWCA Civ 1289 at [32], Maurice Kay LJ P, with whom Munby and Lewison LJJ agreed, said:

“An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence. Even if one factors in Mr Elliott’s health problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far.”

48    In essence, her Honour came to the view that Ms Huang had had every opportunity and indulgence to articulate in an intelligible or comprehensible way the case she wished to propound. I am of opinion that no arguable basis has been shown to suggest that her Honour erred. Ms Huang defied the orders that sought to have her do so in an orderly way, either by identifying that case in pleadings or in an affidavit, compliant with Her Honour’s directions. During the course of the directions hearings, Ms Huang continually interrupted her Honour, spoke over her and caused further disruption and protraction of the proceedings. By the time the proceedings were before her Honour for decision, I am satisfied that her Honour had a proper basis for exercising her discretion in the way she did, to bring the proceedings to an end, not just against Ms Huang, but against Mr Abayawickrama. The fact that the proceedings had been conducted against the University in the way they were, at the same as they were being conducted against Mr Abayawickrama, demonstrated that the proceedings were an abuse of the process of the Court.

49    Although Ms Huang had not been on notice of an express application in respect of, or by, Mr Abayawickrama, about the conduct of the proceedings as against him, I do not think that any difference in the result would have occurred from the fact that her Honour had not sought to invite Ms Huang to address her on that point. Even if it could be said that her Honour had denied Ms Huang natural justice, and I do not think it could, it is clear that, because of the substantial overlap of the issues, nothing further could have been put to demonstrate that the proceedings as against Mr Abayawickrama were any less an abuse of the process of the Court at the time they were before her Honour than those against the University. Ms Huang had not complied with directions as to the pleading of her case in accordance with the Federal Magistrates Court Rules or the filing of affidavits of no more than 10 pages of text. In my opinion, if her Honour had raised a point about dismissing the proceedings against Mr Abayawickrama, it would have made no difference to Ms Huang’s conduct of the application before her Honour up to then, or in the availability of the inevitable conclusion that her Honour reached, namely that the whole proceedings had become an abuse of the process of the Court: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, per Mason, Wilson, Brennan, Deane and Dawson JJ.

50    Her Honour was entitled to manage the proceedings under the Federal Magistrates Court’s case management procedures. Ms Huang’s proceedings had become unmanageable by reason of Ms Huang’s failure to comply with orders and directions and to cooperate with the Court and the University in their conduct. Since Ms Huang’s claims against the University were based on its assistance in, or vicarious liability for, Mr Abayawickrama’s conduct, Ms Huang’s inability to identify properly her claims against both respondents in a statement of claim or an affidavit that complied with her Honour’s orders, meant that by the time her Honour heard the application the whole proceedings were an abuse of process. Accordingly, proposed ground 3 has no substance. Her Honour’s reasons were clearly correct.

Conclusions

51    For these reasons, I am of opinion that the application for leave to appeal does not demonstrate any sufficient reason to doubt her Honour’s conclusion or that any, let alone any substantial, injustice would flow from a refusal of the grant of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. Indeed, in my opinion, her Honour’s decision was plainly correct. Accordingly, the application for leave to appeal must be dismissed with costs.

Associate:

Dated:    18 February 2013