Chung v University of Sydney & Ors S87/2002 [2002] HCATrans 550 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 2002

B e t w e e n -

YO HAN CHUNG

Applicant

and

UNIVERSITY OF SYDNEY

First Respondent

LYNDALL MAXWELL

Second Respondent

JULIE GROVE

Third Respondent

ELFREDA MARSHALL

Fourth Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 10.36 AM

Copyright in the High Court of Australia

__________________

MR Y.H. CHUNG appeared in person.

MS K.L. EASTMAN: I appear for all the respondents, your Honours. (instructed by Minter Ellison)

GAUDRON J: Yes, Mr Chung.

MR CHUNG: Yes. University removed my exam papers. That was the main issue and according to University policy that is all copies of exam papers should be kept but never ever they was shown to publicly and I saw it with a letter that was passed because she asked me to repeat it on the medication and also she does not know - she knew that I was in major depression and also in Federal Court material appeal letter I indicate - I enclose medical certificate major depression, but in the whole court material there was no my medical certificate and University arguing that as if they did not know what mood disorder in human right investigation, but many things is - many evidence is removed and tampered, forged signatures. Court was misled severely up until now but I have got only one evidence.

In 1999 I received threat letter from Lyndall Maxwell. If I read it through again:

I am writing to confirm our conversation earlier this week.

That means she asked me to come to her office earlier that week. She has confirm in this letter. I have been in there and she said, "Because you are sick you cannot do clinical education", she said, and I report it to the Dean, through the Student Guild, and then next week, Monday, I received it from her. Already I set up all the allegation to the University. She threaten me, she bother me, she make me sick as if - - -

GAUDRON J: But you did not complete the necessary aspects of the course, did you? Had you completed the subjects that were the precondition to the course?

MR CHUNG: Yes, that is the point. She is saying that as.....but evidence in High Court application book 89 - - -

GAUDRON J: No. Well, we are not concerned with evidence, Mr Chung. We are concerned with whether there was legal error in the Federal Court and perhaps ultimately - - -

MR CHUNG: The Federal Court say that chronology was not useful but they say in page 81, at the bottom, 28 January 1999, that:

Mr Chung applies for application for special consideration of Clinical Education II

But the point is I am not involved in clinical education II at all. I should do clinical education IA in 12 July letter by Lyndall Maxwell. That should be clinical education I but she exaggerates that as if clinical education II. Cardiopulmonary II is a third year subject and clinical education IA is a second year subject. How they, you know - they cannot explain. The third year subject cannot be a second year.....subject and in this University handbook here it say that clinical education II in 1999, exactly the same year. They say that clinical education IA is - - -

GAUDRON J: Ultimately you have to establish, have you not, some error in the approach to your allegation of discrimination? Now, it does not - - -

MR CHUNG: In Federal Court legislation - I showed it to Federal Court that detrimental effect to disabled people is disability discrimination definitely, but University - she knew that my treatment - I was on the treatment, I was on the medication, but I repeated my subjects. If that was not passed, University, obviously they should keep the original and the copy, but University in this allegation that she saw that his paper is correct. That also make me sick and more upset, I could not sleep. At this stage, if they opened my exam papers, they proved that was not passed, I did not come here. But I was sick. They nullify me and they kept making me sick and I still am taking medication four years and last year - the beginning of this year I complained to University that they have intention to re-enrol me but in their letter in this year, already two years have passed, they reject it. They would not accept it. I felt I already wasted time three years.

But, your Honour, already I am really sick of this explanation. I explained many times that was clinical education IA but she was clinical academy - she is clinical co-ordinator. She know everything, what is prerequisite or not, and also cardiopulmonary II exam was her subject. She was co-ordinator. She is a powerful woman in school, I understand it, but she would not abuse the whole power like that. I received this letter. I was shocked because she make a signature on here. I cannot believe it.

So, your Honour, I like to make sure that they make.....evidence or whatever. I am really sick of. I was quite disappointed in the last court. I could not believe it, your Honour.

GAUDRON J: Well, Mr Chung, you may have been disappointed but the problem is here today - and it may well have been the problem below - is that we are concerned with the law. Now, what you have to do is to establish some sort of legal error. Essentially that comes down to establishing a prima facie case of disability discrimination. Do you understand that?

MR CHUNG: I understand, but I already - in the Federal Court I spoke to Spender J but - as if he would understand the clinical education IA trouble with Lyndall Maxwell's letter, but he would not accept it. I could feel that his face become red - - -

GAUDRON J: Well, I am terribly sorry, but I do not follow the clinical education I complaint. I do not see how that impinges - how it bears on your claim to have suffered disability discrimination.

MR CHUNG: The major shock, your Honour.

GAUDRON J: I know - - -

MR CHUNG: I already repeated her subjects, you know, that was passed. She say that, "You do it again." I was sick. I appealed to the school that I am sick.

GAUDRON J: But did you get pass grades?

MR CHUNG: Yes, passed but University destroy the papers. I repeated. I worsened. One and a half tablet of Prozac and suicidal mood was increased. Appeal letter to Dean, I said that there is a possibility I could commit suicide and also Student Guild give notice to Dean that she could observe suicide. I talked many times and also I do not need to repeat my subject. They destroyed - they lost my exam papers. That is their error. That should be counted in the formal court, but nothing counted.

So many people and many of my friends or everyone think they are tampering evidence. Destroying exam paper is not acceptable. That is, your Honour, if they make the sick student repeat subjects and then he worsened and treat for five years still taking medication, then who is going to take this responsibility? And the University say they are right to let him do 50 per cent or 30, whatever, but I do not need to repeat all my subject that was pass grade and also they would not open - never ever. I asked the Human Rights to open the exam paper and I told many people, but that was never done and they destroyed in the Federal Magistrate Court just before.

That was very serious evidence. That is the point in this case that was passed, your Honour. That is the policy: all copies should be kept. That is common sense, your Honour.

GAUDRON J: Well, we are not here to - - -

MR CHUNG: Your Honour - your Honour - - -

GAUDRON J: Mr Chung, just listen to me. If you are interested in assisting yourself, you will concentrate on the question whether or not there was legal error, not on what you complain about relating to the administration at Sydney University.

MR CHUNG: I thought that there was - the chronology was bottom 81. That was made up, clinical education II "special consideration". They defended Lyndall Maxwell's.....That was made up. They cannot show any document I was enrolled in clinical education II. They cannot show any evidence, no, and also at the time when I hand in the - yesterday I filed this document in here. Say 18 January 1999 to 12 February 1999, undertake clinical education IA (Outpatients). That was the Royal North Shore Hospital, but in this chronology say that 28 January this clinical education IA session - in this session I was doing clinical education IA but I stopped it because I was sick, so I stopped it. But in here clinical education II. Why? In order to excuse this letter, excuse this letter.

The point is many people cannot believe it, what happened in the University. What happened exactly right. So they should excuse themselves, so they need to make up the story, you know. That is serious. In the courts - in the court they - - -

GAUDRON J: Well, they do not - they say they were - I would have read that as saying there was a meeting to discuss whether you would go into clinical education II when you had stopped clinical education IA.

MR CHUNG: Pardon?

GAUDRON J: You had not completed clinical education IA, had you?

MR CHUNG: Yes, yes.

GAUDRON J: No, and I would have read that chronology as a discussion to see whether, although you had not completed clinical education IA, you would go into clinical education II.

MR CHUNG: No. Clinical education IA is a prerequisite for clinical education II.

GAUDRON J: Yes.

MR CHUNG: So this is quite - nobody can understand this sort of letter exist in - this is 1999 handbook is correct in the same year. So from three pages down from there, clinical education II "Pre-requisites Clinical Education IA". Yes.

GAUDRON J: Yes.

MR CHUNG: I never enrolled in clinical education II. Why she say clinical education II suddenly? I was supposed to go there, clinical education IA, between - in letter Federal Court page 24 they say that it was agreed that clinical education IA will be had in the inter-semester break, but in here summarise that my study but there is no clinical education II. So Lyndall Maxwell knew that. She organise everything. She is clinical academy and cardiopulmonary II co-ordinator. So I can fail your subject, whatever, and also I can organise you with clinical education. If I cannot pass clinical education, I cannot.....and also she can bring clinical supervisor or whatever.

And also I include letter from the prosecution office. They write this material and also they think this should be investigated by Commissioner of Police and also Premier sent a letter this should go to Commissioner of Police. They said to Human Rights the commission office think there is no laws to investigate this matter. This is.....happen and also - - -

GAUDRON J: Mr Chung, ultimately the case you have to face is the decision that whatever happened, it was not a case of discrimination.

MR CHUNG: No.

GAUDRON J: That is what you have to face in this Court.

MR CHUNG: Both. It is criminal - - -

GAUDRON J: No, no, we are concerned only with an application - - -

MR CHUNG: Yes, yes, your Honour.

GAUDRON J: - - - for leave to appeal.

MR CHUNG: Yes, yes, your Honour. So University think this - up until now they think I am not major depression. I had a major depression. They have rang my psychiatrist. They do not believe medical certificate. What happened then? The patient increased anxiety. They do not believe my medical certificate. They think I made up on my own, is mentally sick, increased.....cannot sleep in the night. And then University rang to my doctor. They knew and my doctor said to the University, "Stop it. He's really sick." But nothing - they did not believe. They do not know what mood disorder is in the Human Right investigation.

Mood disorder is major depression and bipolar depression. It is not major depression. Bipolar depression is more serious but University do not care and also University policy that.....courses for University. In the University recently they sent me a letter that my show cause - I said that I was depression but Federal Court material - Federal Court material - your Honour, what did I say?

McHUGH J: You were talking about Federal Court material.

MR CHUNG: About what? I was a little bit - - -

GAUDRON J: Yes, we do not know either. You just kept saying "Federal Court material".

MR CHUNG: Yes, yes. University say that I hand in show cause 16^th or 17^th, but in Federal Court material I received - they gave me a receipt that I hand in 15 February but recently I received from the University but there is different stamp on it. The stamp is different with original with - there is a stamp like just the office, or whatever, that is not University mark. They stamp on it 16^th received. So all of that is not truth. Already I hand in my show cause in 15 February. They arguing that - they made up recently, I think, stamp on it with someone - someone made up.

I sent my show cause letter and say depression, but University did not care. The point is the University did not care that sick student notified - did not believe medical certificate. Do not co-operate treatment. As the University side said to me in the court, on fair treatment in the High Court was disability discrimination. This is not fair treatment, your Honour.

McHUGH J: Thank you, Mr Chung.

GAUDRON J: Yes, thank you, Mr Chung. We do not need to hear from you, Ms Eastman.

This application raises no question of law or principle suitable for the grant of special leave to appeal. Accordingly, special leave is refused.

Do you seek costs?

MS EASTMAN: We do, your Honour.

GAUDRON J: Yes. Well, in accordance with the usual practice, special leave is refused with costs.

The Court will now adjourn briefly to reconstitute.

AT 10.58 AM THE MATTER WAS CONCLUDED