Chen v Birbilis

[2016] FCA 661

FEDERAL COURT OF AUSTRALIA

Chen v Birbilis [2016] FCA 661

File number:

VID 18 of 2016

Judge:

NORTH J

Date of judgment:

3 June 2016

Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Fair Work Act 2009 (Cth) s 117(3), 340-342, 351, 365, 368(3)(a), 368(4), 370

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules 2011 (Cth) r 26.01

Sex Discrimination Act 1984 (Cth) s 94(2)

Cases cited:

Chen v Monash University [2016] FCAFC 66

Walker v State of Victoria [2012] FCAFC 38

Date of hearing:

Determined on the papers

Date of last submissions:

4 April 2016 (Respondent)
9 May 2016 (Applicant)

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

20

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondents:

Ms R Nelson

Solicitor for the Respondents:

Lander and Rogers Lawyers

ORDERS

VID 18 of 2016

BETWEEN:

QIZHI CHEN

Applicant

AND:

NICK BIRBILIS

First Respondent

EDWINA CORNISH

Second Respondent

MONASH UNIVERSITY

Third Respondent

JUDGE:	NORTH J
DATE OF ORDER:	3 JUNE 2016

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The applicant to pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

NORTH J:

INTRODUCTION

1. On 1 February 2016, the respondents, Monash University, Nick Birbilis, and Edwina Cornish (who will be referred to as “the Monash parties”), filed an interlocutory application seeking orders under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) that the proceeding brought by the applicant, Qizhi Chen, be summarily dismissed on the ground that Ms Chen has no reasonable prospect of successfully prosecuting the proceeding.

   THE ORIGINATING APPLICATION

2. On 8 January 2016, Ms Chen commenced the proceeding by filing an originating application.  In the originating application Ms Chen makes the following allegations:

   ·On 12 May 2008, she commenced employment at Monash University in the Faculty of Engineering;  

   ·On 5 October 2011, she instituted a complaint of sexual discrimination relating to her employment in the faculty;

   ·On 10 April 2014, she was suspended as a result of an allegation of serious misconduct;

   ·On 25 June 2014, she was dismissed from her employment;

   ·She was singled out, excessively monitored, micromanaged and treated differently to other academics;

   ·On 14 November 2013, Professor Birbilis failed to renew half of the scholarship of her research student without justifiable reasons;

   ·On 1 April 2014, Professor Birbilis demanded that she immediately return her e-cab card without justifiable reasons for the urgency;

   ·On 7 May 2014, Professor Birbilis asked the publisher of her text book to abandon publication; 

   ·When her employment was terminated, she was paid four weeks in lieu of notice when s 117(3) of the Fair Work Act 2009 (Cth) (the FWA) required five weeks notice;

   ·Ms Cornish, the Provost of Monash University, who terminated her employment, had no authority to…