He v Monash University

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 03696

WEIPING HE	Applicant
V
MONASH UNIVERSITY	Respondent

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2024
DATE OF JUDGMENT:	23 December 2024
CASE MAY BE CITED AS:	He v Monash University
MEDIUM NEUTRAL CITATION:	[2024] VSC 826

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ADMINISTRATIVE LAW – Judicial review and appeals – Application for leave to appeal against VCAT order striking out pleadings – Where applicant alleges apprehended bias – Where applicant alleges legal error in the Tribunal’s interpretation of ss 103 and 105 Equal Opportunity Act 2010 (Vic) – Where applicant alleges legal error in the strike out order –Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75 – AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Johnson v Johnson (2000) 201 CLR 488.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Self-represented
For the Respondent	C Young KC	Clayton Utz

Contents

A.. Introduction

B... Grounds of appeal

B.1          Ground 8 – the apprehended bias ground
B.2Ground 9 – the EO Act ground
B.3          Grounds 1 to 7 – the strike out grounds
B.3.1        Ground 1
B.3.2        Ground 2
B.3.3        Ground 3
B.3.4        Grounds 4, 5 and 6
B.3.5        Ground 7

C.. Conclusion

HER HONOUR:

A Introduction

This is an appeal from orders made by Member Cameron (the member) at the Victorian Civil and Administrative Tribunal (VCAT, the Tribunal) on 27 June 2024 (the June order) under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).[1] Weiping He (the applicant) seeks leave to appeal pursuant to s 148 of the VCAT Act.[2]
[1]Court Book, He v Monash University (Supreme Court of Victoria, S ECI 2024 03696) 322–323 (‘CB’). See also CB 324, the orders subject of this appeal had minor amendments made to them by orders made 3 July 2024 by Member Cameron. The amendment orders are not subject to the appeal.
[2]CB 47–50.
The applicant’s claim before VCAT, dated 19 October 2023, is an application in the Human Rights List for orders under the Equal Opportunity Act 2010 (Vic) (the EO Act) with respect to her employment as an academic at Monash University (the respondent) (the claim). The claim has three aspects:
(a)First, it alleges discrimination on the basis of race in the context of the applicant’s employment by Jennifer Hill (Hill), the Director of the Centre for Commercial Law and Regulatory Studies at Monash University, in breach of s 18 of the EO Act.
(b)Second, it alleges that other staff, in particular the then Dean of the Monash Law Faculty, ‘assisted’ in the discrimination in contravention of s 105 of the EO Act and alleges vicarious liability of the respondent under s 109 for any contravention of the EO Act.
(c)Third, the claim alleges victimisation in breach of s 103 of the EO Act as a result of an informal complaint on 30 March 2021 about the applicant’s treatment, a formal complaint made to the respondent on 15 September 2022 and a complaint to the Australian Human Rights Commission (AHRC) on 19 December 2022.[3] The applicant said that she subsequently withdrew her AHRC complaint following a conciliation conference in order to return to the Victorian jurisdiction.[4]
[3]CB 192 and 373.
[4]CB 132.
Order 1 of the June order, which is the subject of the leave to appeal application, is an order striking out parts of the applicant’s Particulars of Claim (the particulars) under s 75 of the VCAT Act. The June order listed the specific sentences and paragraphs of the particulars that were affected.
The particulars were filed in accordance with orders made by the Tribunal on 20 February 2024 (the February order). Order 2 of the February order directed the applicant to file a document that set out:
a.   what they [the applicant] say happened;
b.   why they say this was a breach of the Equal Opportunity Act 2010 (Vic);
c.   what is the basis of the discrimination claimed (that is, whether it is the discrimination on the basis of gender, age, disability or some other protected attribute);
d.   what the respondent did or failed to do which was discriminatory;
e.   what loss and damage the applicant suffered because of the discrimination; and
f.    what outcome the applicant wants.[5]
[5]CB 160.
The particulars provided are detailed. They total just over 30 pages and are divided into topic sections with headings marked ‘A’ to ‘Q’. The June order struck out the following substantive parts of the particulars:
(a)Part A: in total (paragraphs [1] through to [8]);[6]
(b)Part B: in part (second and third sentences of paragraph [1.10] only);[7]
(c)Part C: in part (the heading only);[8]
(d)Part G: in part (paragraphs [2.6] and [2.7] only);[9]
(e)Part K: in part (the heading, paragraph [10], and paragraph [11] only);[10]
(f)Part L: in part (the heading and paragraphs [2.9] through to [3.4] only);[11]
(g)Parts M and N: in total (both headings and substantive paragraphs);[12]
(h)Part O: in total (heading only);[13]
(i)Part P: in part (one phrase in paragraph [1] only);[14] and
(j)Part Q: in part (paragraph [7] only).[15]
[6]Order of Member M Cameron in Weiping He v Monash University (Victorian Civil and Administrative Tribunal, H387/2023, 27 June 2024) (‘June order’), [1](a) and [1](b).
[7]June order, [1](c).
[8]June order, [1](n).
[9]June order, [1](d).
[10]June order, [1](e), [1](f) and [1](n). Note paragraphs [10.1] and [10.2] of the particulars were not struck out.
[11]June order, [1](g), [1](h) and [1](n).
[12]June order, [1](i)–[1](l) and [1](n).
[13]June order, [1](n); nb Part O was a heading with no paragraphs.
[14]June order, [1](m).
[15]June order, [1](o).
Before turning to the details of what has been struck out, it is helpful to set out those particulars that remain on foot. They comprise:
(a)Part B, which is headed ‘Preliminaries’ and which identifies the persons and their positions relevant to the claim at paragraphs [1.1] to [1.9]. The particulars identify eight staff members, their roles in the faculty, and in some cases their professional responsibilities in relation to the applicant.
(b)The substantive paragraphs of Part C, which set out the relevant statutory provisions of the EO Act being ss 18, 103, 105 and 109.
(c)Part D, which provides particulars of an allegation that a remark was made to the applicant by Hill that ‘your research on China is marginalised’, as set out in paragraphs [1] to [3] including sub-parts.
(d)Part E, which provides particulars of an allegation that Hill bullied the applicant into undertaking tasks not within the applicant’s job description that were within the role of Chief Examiner, a role held by Hill since late 2019, as set out in paragraphs [1] to [5] including sub-parts.
(e)Part F, which provides particulars of an allegation that Hill silenced the applicant from acting as a witness in relation to a complaint by a student as set out in paragraphs [1] to [5].
(f)The balance of Part G, which sets out particulars of an allegation that Hill excluded the applicant from workplace communications from 2020 as set out in paragraphs [1] to [4] including sub-parts.
(g)Part H, which sets out particulars of an allegation that Hill referred the applicant to an advertisement of a job vacancy based in China, with particulars set out over two paragraphs including sub-parts.
(h)Part I, which gives particulars that Hill misspelt the applicant’s name and failed to acknowledge or correct the mistake as particularised by two paragraphs including sub-parts.
(i)The balance of Part K, which sets out particulars of various communications between the applicant and the Associate Dean (Staffing) as to courtesy in staff dealings and the allocation of teaching duties in 2021, including a subsequent meeting on 30 March 2021. Further correspondence after this meeting and a second meeting on 14 September 2022 was detailed. Thereafter a formal complaint was raised by the applicant with the Associate Dean (Staffing) and the Dean of the Monash Law Faculty on 15 September 2022. The dismissal of that complaint is identified as being contrary to the respondent’s policies and procedures and otherwise deficient. The particulars identify that the Associate Dean (Staffing) was both the delegate of the Dean of the Monash Law Faculty and the supervisor of the applicant for some of the relevant period. Part K also alleges an unreasonable refusal of a promotion meeting request and teaching peer review waiver, as set out in the 13 remaining paragraphs.
(j)The balance of Part L, which sets out particulars regarding conduct surrounding the applicant’s hospitalisation and return to work in October and November 2022, a teaching development meeting on 8 June 2023 and the refusal of various requests, each as particularised in paragraphs [1], [2] and [4] to [11] respectively including sub-parts.
(k)The balance of Part P, which sets out the impact on the applicant of the conduct alleged.
The particulars that remain on foot have been set out above to provide context in these reasons. It is not necessary to make further reference to the allegations contained in them. They will be heard and determined at trial.
The purpose of the particulars, and any responding defence, is for the parties and the Tribunal to understand the factual matters relied on, to identify which of those factual matters are disputed or agreed, and to understand what is said to be the legal effect of those facts if established. In other words, to understand the case brought or defended. In broad terms, the strike out application brought before the Tribunal addressed those parts of the document that did not comply with matters required by the February order for particulars.
As a preliminary observation, the June order striking out parts of the particulars does not determine any factual dispute on its merit, nor does it preclude the applicant from redrafting the matters in a proper form and seeking leave to amend the particulars to include matters in the claim at hearing.

B Grounds of appeal

The applicant lists eight proposed grounds of appeal, and a ninth ground was added by leave at the hearing (the grounds).[16] The grounds traverse three areas. Grounds 1 to 7 allege error in striking out various parts of the claim because they were not frivolous, vexatious, misconceived or lacking in substance or were struck out without due or sufficient consideration. Ground 8 alleges conduct of the Tribunal that gave rise to a reasonable apprehension of bias. Ground 9 alleges an error in the proper construction of ss 103 and 105 the EO Act by assuming that a breach of those sections by a person needs instances of discriminatory conduct by that person.
[16]Transcript of Proceedings, Weiping He v Monash University (Supreme Court of Victoria, S ECI 2024 03696, Justice Forbes, 25 October 2024) 6.6–14 (‘T’).

B.1 Ground 8 – the apprehended bias ground

I will deal first with ground 8 that the member exhibited conduct that gave rise to a reasonable apprehension of bias. If this ground is made out it will be necessary to set aside the June order regardless of whether the applicant demonstrates an error of law on any of the other grounds.[17] The applicant identifies the test for disqualification of a judicial officer on the ground of apprehended bias as set out by the High Court in Ebner v Official Trustee in Bankruptcy:[18]
a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[19]
[17]AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 (‘AJH Lawyers’).
[18](2000) 205 CLR 337.
[19]Ibid 344–5 [6] (citations omitted).
The test is often described as robust. It does not require a decision–maker to sit mute and listen to open–ended submissions. In modern judicial practice, the decision-maker may well raise questions or express tentative views giving the parties an opportunity to address those views. Application of the test involves determining whether the line has been crossed into impermissible pre-judgment, such that the Tribunal approached the decision to be made with a closed mind. This test is applied to hearings in the Tribunal.[20]
[20]Jinsham Investment Group Pty Ltd v Melbourne City Council [2015] VCAT 635.
The applicant relies on various aspects of the member’s conduct at the 12 June 2024 hearing (the June hearing) that she alleges collectively give rise to an apprehension of bias. They were described as:
(a)the member’s familiarity with the respondent, as demonstrated before the commencement of the June hearing and during a break in the hearing;
(b)particular comments during the June hearing, demonstrating the member sided with the respondent;
(i)the member’s response to the applicant’s mention of ‘seeking input from the Supreme Court’;
(ii)the member’s a comment that ‘I should not be arguing with you’;
(iii)an observation that Hong Kong was not part of China, said in the context of a complaint that a job advertisement in Hong Kong, given to the applicant, implied that she should return to China;
(iv)the encouragement of the respondent to pursue a complete dismissal;
(v)describing an instance of discrimination relied on, namely the misspelling of the applicant’s name and failure to correct the error, as ‘trivial’; and
(vi)observations about the confusing nature of the applicant’s submissions in the context of the respondent’s application for costs.
In this proceeding, some factual basis for the matters relied on was contested. I have before me the transcript of the June hearing, two affidavits of the applicant sworn 19 July 2024 and 27 August 2024 and two affidavits of Stuart Pill (Pill), instructing solicitor for the respondent, sworn 9 August 2024 and 11 September 2024. The applicant’s outline of submissions dated 25 September 2024 ‘proffered additional observations’ to the matters in her affidavits. I have had regard to those observations notwithstanding that they were not in the form of sworn evidence.
As to the matters in paragraph [13](a) above, namely conduct that occurred outside the June hearing itself, clearly the transcript is of no relevance. The applicant’s evidence[21] is that she observed the respondent’s ‘team’ outside the hearing room before seating herself in the corridor out of their view. When she entered the hearing room both the member and the respondent’s representatives were already present and seated. The member remarked ‘Here is Dr He’. The applicant submits that the absence of an introduction of the respondent’s representatives at this stage of the hearing suggests a prior familiarity or introduction between the member and the respondent’s representatives that excluded the applicant. Further, the applicant stated that during a break in the hearing the member engaged in informal discussions with the respondent outside the hearing room in the absence of the applicant.
[21]Applicant, ‘Affidavit’, Affidavit in Weiping He v Monash University ((Supreme Court of Victoria, S ECI 2024 03696, 21 July 2024) (‘Applicant’s first affidavit’), see also CB 51–111. The Applicant’s first affidavit exhibited a document entitled ‘The Applicant’s proposed grounds of appeal’ as part of exhibit WH–1 (‘exhibit WH-1’). Paragraphs [81] to [97] of that document deal with proposed ground 8.
Pill deposed that on arrival at VCAT the hearing room was locked and he waited in the corridor until a court clerk unlocked the door. On entering the hearing room and setting up, he observed a second person sitting at the bench in addition to the clerk. He had not anticipated the member being present before the parties were able to enter the hearing room. Counsel for the respondent was alerted to the member’s presence and apologised, not realising the member had been present. The applicant then entered and Pill agrees the member said words to the effect ‘here is Dr He’. According to Pill, the member did then confirm the names and roles of those in attendance before indicating that the hearing would commence. The transcript recording was then started.
Pill denies any informal conversation outside the hearing room with the member during a break in the June hearing or at any time outside the hearing room. During the break the applicant and the respondent’s representatives left the hearing room together. The applicant returned first to the hearing room. Shortly thereafter the member opened the door of the hearing room, and from the doorway, requested the respondent’s representatives return.
As to comments during the hearing as set out in [13](b) above, the applicant said that when she proposed seeking guidance from the Supreme Court due to the absence of law on a particular issue, the member reacted ‘with apparent surprise, emphatically uttering “Supreme Court?!”, while looking towards … [a representative of the respondent] as if seeking some sort of responses’.[22] Another exchange, submitted to demonstrate that the member was advocating for the respondent was the comment ‘I should not be arguing with you’. The member also allegedly expressed surprise that the respondent did not seek to strike out the entire claim.
[22]Applicant, ‘Affidavit’, Affidavit in Weiping He v Monash University (Supreme Court of Victoria, S ECI 2024 03696, 27 August 2024) [37] (‘Applicant’s second affidavit’), see also CB 334.
The description of Hill misspelling of the applicant’s name, alleged in the particulars to be an instance of unlawful discrimination on the basis of race, was questioned as ‘trivial’ by the member. The applicant submits this demonstrates that the member failed to consider the incident within the context of conduct occurring over an extended period of more than three years. This is described as also showing a disposition against the entire case. At another point the applicant describes the member as directing a stern gaze in her direction during the respondent’s presentation of argument conveying ‘a pronounced sense of disapproval’. Similarly, the applicant asks rhetorically, does the member’s error in her understanding of the relationship between Hong Kong and China reflect an error in determining key facts regarding the applicant’s rights.
Finally, the member observed that the applicant’s materials were ‘confusing’ and that the verbal submissions could not be understood by the member. This was relevant to the question of whether the applicant was, as the respondent submitted, a professional advocate and was relevant to the respondent’s application for costs.
Regarding the conduct of the hearing itself, Pill’s affidavit sworn 9 August 2024 states that:
(a)The applicant’s reference to the Supreme Court was unclear and the member sought clarification of what it was that the Supreme Court might be asked to do. The member did not emphatically utter the words, nor look in some familiar way at the respondent’s representatives.
(b)The member did state to the applicant ‘I should not argue with you’ in the context of the applicant acknowledging that certain persons had nothing to do with the alleged incidents of race-based discrimination while still maintaining an allegation of breach of the EO Act by those persons and stating there was no law on the issue.
(c)There was no view expressed about striking out the entire claim, only clarification about those paragraphs that were subject of the application.
(d)The applicant had agreed that the misspelling of her name could be construed as trivial.
(e)The comment about not understanding the submission was indicating that the applicant appeared to be confusing herself and that the submission being made was difficult to follow.

I have read the transcript from the June hearing. The critical portions include:
DR HE: The second one is that – so part H, 'Jennifer Hill referred Weiping He to a job based on China', on p13.
MEMBER: Can you tell me a little bit more about why you think that's an act of race-based discrimination?
DR HE: Yes. So it's a job – sorry, I kind of – a job based in Hong Kong, in China.
MEMBER: Hong Kong is not in China, is it?
DR HE: Yes.
MEMBER: In Hong Kong?
DR HE: Yes, in Hong Kong.
MEMBER: Okay.
DR HE: So a job in Hong Kong. And so my reading of it is that she wanted me to go home, to return to China.
MEMBER: Hong Kong is not China, is it?
MR AVALLONE: To be fair, I think since 97, England handed it back to China, and it's got a certain - - -
MEMBER: I'm sorry. My geopolitical understanding is – but anyway, you took that as being a racist act on her part.
DR HE: Asking me to go home.
MEMBER: Because you're of Chinese ethnicity.
DR HE: Yes, that's correct.[23]***
[23]Transcript of Proceedings, Weiping He v Monash University (Victorian Civil and Administrative Tribunal, H387/2023, Member M Cameron, 12 June 2024) 39.13–40.2 (‘VCAT Transcript’).
DR HE: The email sent from (indistinct), my name spelt wrong. So as I stated, that it's not uncommon to – my name is exotic. It's foreign. So - - -
MEMBER: Does that not seem a trivial matter to you, Dr He?
DR HE: There's another – so I asked for a correction. Yes, it could be construed – yes, trivial, yes.
MEMBER: Well, it's genuinely a question.
DR HE: No, but I asked for – to correct (indistinct). So it's not only - - -
MEMBER: And was there a refusal to correct your name or something else?
DR HE: Silence. And I think there's another side to this story, that I talked to Melissa Castan, and she dismissed it. I (indistinct) the emails as well.[24]
[24]VCAT Transcript 40.7–20.
***
MEMBER: Well, you have not articulated those incidents of racial discrimination over the four-year period other than these three allegations that you've set out.
DR HE: Yes, so my, yes, so my client can - is willing, to my detriment, to my detriment.
MEMBER: Yes but you have to bring that back - - -
DR HE: Based on the rights - - -
MEMBER: Okay, no you're bringing - - -
DR HE: Based on the rights, yes. Based on the rights. There are statutory elements set, you know, by going through this part, if you look at, refer to part D, to part J. So these parts are, so I've intended to meet them to assist to the statutory requirements. One to do is racism, how it's manifested. And the other one is to detriment, how I suffered, as to meet this judge statutory requirement. So this is Jennifer Hill.
So in terms of Bryan Horrigan assisting, I don't - I do agree with you. Bryan Horrigan has nothing to do with these three instances. But I am not sure so if there's no, shall we seek the input of the supreme court? I don't know. I mean, whether, you know, whether you can, you know, but you said that - - -
MEMBER: Sorry, what was it - what do you want the supreme court - - -
DR HE: I'm, I am just saying that, um, you know, asking the tribunal to help me to understand. In terms of assisting, whether it's right or - - -
MEMBER: I am not going to give you advice or opinion on that, Dr He.
DR HE: Okay, that's right. Okay so unless that issue, I think raised it by the opposite is to do is a corporate culture so it's not relevant and it needs to be struck out. And so largely, it's to do with corporate culture.
MEMBER: Well, I can't - well, I am not hearing the claim. That will be a matter for what, what if anything proceeds to a substantive hearing.
DR HE: Yes, exactly. I think - because, yes, no law on this particular point. Whether, you know, I looked at recent cases, more and more are corporate culture has been brought to the fore. And - - -
MEMBER: It's generally in a different jurisdiction.
DR HE: Yes, I do, I mean, I - - -
MEMBER: A lot of this, there's - - -
DR HE: So, there's no law of this particular point whether - can I please finish what I am saying? So there's no particular law on this particular point, whether corporate culture are relevant or not. So again, you know, whether we need to - I think there is a rule because if there's any dispute to do with law or, you know, we need clarity. We can, you know, seek assistance or seek input of supreme court.[25]
[25]VCAT Transcript 46.28–48.16.
***
MEMBER: I just, I don't know how the bullying picture, the way it is articulated in your claims can be brought within the meaning of the Equal Opportunity Act.
DR HE: So I did a lot of research on that, loss, there's no law. So that's what I am saying, whether we need - - -
MEMBER: There's a, there is law. But I should not argue with you.
DR HE: Yes, no, no, no. Yeah, yeah. So six inputs of the, you know, where, you know, that we are reaching a point that we need to seek input of supreme court on this. Two issues, one is to do whether - - -
MEMBER: What do you mean we need to seek the input of the supreme court. You can appeal my decision to the supreme court - - -
DR HE: Oh, no, no, no. That's all - sorry, no, no, that's not what I'm - I'm just saying these two, like, I'm confused myself right, so whether it's enough, if Bryan assists Jennifer in bullying, is that enough? Or - - -
MEMBER: I don't know, I really can't comprehend what you're asking me.[26]
[26]VCAT Transcript 50.26–51.14.
***
DR HE: Oh, no, no, no. That's all - sorry, no, no, that's not what I'm - I'm just saying these two, like, I'm confused myself right, so whether it's enough, if Bryan assists Jennifer in bullying, is that enough? Or - - -
MEMBER: I don't know, I really can't comprehend what you're asking me.
DR HE: And the corporate culture, corporate culture, whether it's relevant or not. So increasing, I think it has to come to the fore, that's my take on that. I am repeating myself.
MEMBER: Yes.
DR HE: Yes.
MEMBER: All right. I don't entirely understand your oral submissions but I've got a recording so I can reflect on that a little later. Does anyone have any questions or further points to make?
MR AVALLONE: No. It's - sorry, but for this. That - - -
DR HE: Sorry, just let me - did you just say that you don't entirely understand my oral submission?
MR AVALLONE: Ah - - -
MEMBER: I'm sorry if that causes you offence.
DR HE: No, no, no. Not at all, it's just the whole thing is very emotional for me. No, no, not at all, not at all. English is my second language, it's like, it's, as a parent is at bay.[27]
[27]VCAT Transcript 51.9–52.2.
On the question of ordering costs of the strike out application against her, the applicant said the Tribunal uttered words to the effect ‘I am going to award costs against you’.[28] With the benefit of the transcript what was said at the June hearing was:
[28]Applicant’s first affidavit, ‘The Applicant’s proposed grounds of appeal’ at exhibit WH–I [94], see also CB 66.
MEMBER: I may make costs orders after this proceeding.
DR HE: Yes, I understand. But I, I understand, yes. But my understanding is the tribunal is a no costs jurisdiction and - - -
MEMBER: That's not right, we can make - well, I will make a brief statement about that which is that, generally in the human rights division in particular, we don't make costs orders. We sometimes do when a matter is so poorly conducted that it's appropriate to avoid (sic: award) costs. I have avoided costs in applications of this kind.
DR HE: I, I am all in your good hands. I was - so I fully understand what is being proposed by the opposite side. And I, you know, rely on the good judgment of the tribunal and you, I know must decide on the costs. I hadn't looked into the costs matter personally, but - - -
MEMBER: You were on notice I believe that the respondent would seek costs.
DR HE: Because I, you know, I was confident that this task wouldn't be struck out, but as a way, you know, I can read as a woman, so if that's the case - but I just put my further - - -
MEMBER: I haven't made a decision yet, Dr He.
DR HE: Yes.[29]
[29]VCAT Transcript 49.4–26.
Allowing that transcript does not always capture the tone of particular words or phrases or body language, I am nevertheless satisfied that the transcript does not disclose the member acting in a way that demonstrably raises any apprehension of pre-judgment or a closed mind. Some of the matters raised, in particular the misspelling of the applicant’s name and the references to assistance from the Supreme Court, are, in context, asked as genuine questions to understand the submission being made. Others, such as a belief that Hong Kong remained a colony of Great Britian, were readily accepted as an error.
The transcript also makes clear that the Tribunal made no statement intending to order costs against the applicant, but sought submissions from the applicant as to the respondent’s application that she pay costs. To do so was both proper and necessary.
It is also necessary to look at all the instances cumulatively as the applicant contends that, looked at as a whole, the member’s behaviour was such that a fair-minded observer might apprehend that the member did not bring an impartial mind to the resolution of the application.
In my view the transcript read as a whole demonstrates that the member endeavoured to make sure the applicant had articulated her submissions satisfactorily and that they had been understood. Having heard the applicant’s full submissions, the member was not obliged to agree with them and expressed the view that some but not all of the application was misconceived. The member explained that insofar as the particulars alleged bullying:
I just, I don’t know how the bullying picture, the way it is articulated in your claims can be brought within the meaning of the Equal Opportunity Act.[30]
[30]VCAT Transcript 50.26–8 (emphasis added).
The Tribunal at the outset, having read the written material, identified a potential problem with the particulars: that a large amount of the conduct – timetabling, supervision and workplace processes included – has not been connected to the discrimination alleged because of a protected attribute, namely race.[31] The Tribunal’s comments identified, for the benefit of the applicant, the perceived deficiencies in the particulars that address bullying so that the applicant’s submissions would be relevant to the Tribunal’s concerns.
[31]VCAT Transcript 2.16–26.
The applicant takes issue with the member asking questions of her submitting that the Tribunal engaged in advocacy demonstrating a lack of impartiality. As the High Court said in Johnson v Johnson:[32]
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. 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, 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”. 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.[33]
[32](2000) 201 CLR 488.
[33]Ibid 493 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (citations omitted).
The member’s intervention did not exceed the expression of views in order to elicit relevant submissions from the applicant addressing the concerns held by the Tribunal. It was an appropriate course to take with a self-represented litigant.
As to the matters alleged as occurring outside the conduct of the hearing, the applicant’s suspicion of what transpired during a break in her absence is not direct evidence of what, if anything, actually occurred. There is little conflict in the recollections of the applicant and Pill as to what occurred before the hearing commenced. The only conflict is whether or not introductions were made by the member of all participants or just the applicant. On that issue, I prefer the evidence of Pill that all parties were introduced by the member. However, even if that had not occurred, a failure to do so is not a basis from which to infer some prior familiarity with the respondent’s legal representatives that itself leads to an apprehension that the hearing would be approached with a closed mind as to its merit.
Ground 8 does not have prospects sufficient to grant leave to appeal.
The applicant, after the hearing in this proceeding, sought leave to make further submissions on the basis that the Tribunal exhibited actual bias. She forwarded three submissions dated 19 November 2024, 4 December 2024 and 6 December 2024. The respondent opposed this course as the applicant was specifically asked whether or not she alleged actual bias during the appeal hearing. The applicant said she did not allege actual bias. The transcript shows:
HER HONOUR: Okay? So your - my question to you is really to clarify - and if you go to your reply submissions, I think it was in - let me just find that again. So if you see in paragraph 29, those submissions really are couched in terms of saying the tone revealed a surprising degree of bias; the member was willing to voice this bias explicitly. Hence my question about whether what you are submitting is that the member was actually biased or behaved in a way that the lay observer might apprehend in terms of the test for apprehended bias.
DR HE: So, like, can I also ask a question as to - because this is based on the recording that - you know, if you want to ascertain what kind of tone - so it's based on the recording. Would the court have time to listen to the recording? So sometimes I make this argument - - -
HER HONOUR: Well, perhaps if you answer my question first.
DR HE: Yes.
HER HONOUR: Is your submission a submission that the tribunal was actually biased or a submission about apprehended bias?
DR HE: So I'm quite sure about apprehension bias, but on the point of actual bias probably I already said it inadvertently.
HER HONOUR: Okay.
DR HE: But that's, you know, the - - -
HER HONOUR: That's all I wanted to clarify.
DR HE: Yes.
HER HONOUR: That, really, that's - - -
DR HE: Probably inadvertent, yes.[34]
[34]T 56.31–57.28.
The applicant’s further submissions also identify a discussion in the VCAT hearing concerning the particulars setting out the actions of Hill as demonstrating bias.[35] Those parts of the particulars were not the subject of the application to strike out and were not in fact struck out by the Tribunal. The applicant’s submission identifies the conduct of the Tribunal as demonstrating and unwillingness to engage impartially with the evidence. The submission misunderstands the role of the Tribunal in the hearing. The Tribunal was not engaging with evidence or deciding the merit of the applicant’s claims for discrimination by Hill which was not the subject of the strike out application.
[35]Applicant’s submissions, received by Chambers via email on 4 December 2024 in Weiping He v Monash University (Supreme Court of Victoria, S ECI 2024 03696) [17].
In my view the applicant should not be given leave to present an argument that she disavowed at hearing. Given that the proposed ground of apprehended bias is not made out, there would be no utility in permitting an additional ground of actual bias with the heavy onus on the applicant to show a ‘pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made’.[36]
[36]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 519 [35] (Gleeson CJ and Gummow J) citing the first instance decision of French J in Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87.

B.2 Ground 9 – the EO Act ground

The applicant’s additional ground is that the Tribunal erred by assuming that a breach of ss 103 and 105 of the EO Act needs instances of discriminatory conduct on the part of the person assisting or victimising.[37]
[37]Applicant, ‘Applicant’s Outline of Submissions’, Submissions in Weiping He v Monash University (Supreme Court of Victoria, S ECI 2024 03696, 25 September 2024) [30]–[32] (‘Applicant’s Outline of Submissions’). At the appeal hearing, the applicant noted that proposed ground 9 was addressed within these submissions, T 5.19–6.2.
The applicant’s second affidavit in support addresses this ground in the following terms:
66.The facts set forth in Parts K-N, pages15 to 28, of the Particulars of Claim suggest that Bryan Horrigan, along with his delegates, subjected the Applicant to a series of unfavourable treatments following the lodging of a complaint by the Applicant in March 2021.
67.Could it be argued that, following the Applicant's lodging of a complaint in March 2021 , Bryan Horrigan, by condoning Jennifer Hill's sustained bullying and discriminatory behaviour, may have thereby authorised or assisted conduct by Jennifer Hill that contravenes section 18(d) of the Act, within the meaning of 'authorising or assisting' as set forth in section 105 of the Act?
68.During the same period, Bryan Horrigan, through his own actions and those of his delegates, engaged in sustained and cumulative adverse treatment of the Applicant. This raises the question of whether such conduct, by Horrigan and his delegates, also constitutes authorising or assisting Jennifer Hill's actions in violation of section 18(d) of the Act, for the purpose of 'authorising or assisting' under section 105 of the Act.
69.Furthermore, the unfavourable treatment following the lodgement of the complaint, both informally within Monash University in March 2021 and formally with the Australian Human Rights Commission in December 2022, necessitates an examination of whether this conduct constitutes victimisation under section 103 of the Act.
70.These questions remain open, and it is yet to be determined at the trial whether the facts as set out in the Particulars of Claim substantiate a finding.[38]
[38]CB 337–338 (emphasis omitted).
During the hearing I asked the applicant to identify where the Tribunal expressed this error. She identified the following exchange during the VCAT hearing:
Dr HE: …so if the Tribunal could focus on the particulars of claim. So I heard you (indistinct) saying there’s no nexus between discrimination and what Brian Horrigan has done. I heard you very clear. So
MEMBER: I said there’s no apparent nexus from the pleadings.[39]
[39]VCAT Transcript 37.3–7.
The Tribunal was not concerned with the elements needed to establish a breach of s 103 or s 105. Whether identified conduct amounts to assisting in discrimination or victimisation within the meaning of the legislation is a question to be addressed at the hearing of the merit of the claim. The Tribunal addressed only whether the particulars drew a causal link between, on the one hand the actions of the Dean of the Monash Law Faculty (or for that matter other staff) and on the other hand either the discrimination alleged against Hill or the lodging of complaints by the applicant.

Contrary to the applicant’s submissions on this ground, the member assumed that assisting another person to contravene the EO Act did not require an instance of discriminatory conduct on the part of the person assisting. The transcript of the VCAT hearing shows:
MEMBER; But how was that assisting the discrimination that was inflicted by Ms Hill?
Dr HE: So it’s all about – so this is what I wanted – assisting, as in, he had to personally engage in three instances of discrimination.
MEMBER: I don’t think so.[40]
[40]VCAT Transcript 41.6–11.
The Tribunal did not conclude or assume that assisting in discriminatory conduct required a person to personally engage in discriminatory conduct. The proposed ground is without merit. Leave to appeal on ground 9 is refused.

B.3 Grounds 1 to 7 – the strike out grounds

In the course of the hearing the applicant accepted that some aspects of her particulars did require further drafting to provide clarity. There is force in the respondent’s argument that there is no utility in quashing the June order because the applicant is able to seek leave to amend her particulars to address any deficiencies. The effect of the strike out order does not bar the applicant from raising substantive matters, if they are adequately set out in accordance with the February order.
I accept that the Tribunal had the power to strike out parts of the particulars. The applicant conceded that at least some parts of the paragraphs that have been struck out will require amendment to clarify matters.[41] The applicant is not precluded from making an application to the Tribunal to include those aspects of her claim that have been struck out, by presenting them in a proper form identifying the words, acts or omissions of individuals that will be relied on.
[41]T 33.19–21.
The applicant addressed each of the seven grounds in detail and it is appropriate that these reasons discuss each specific ground.

B.3.1 Ground 1

This ground alleges error in finding parts of the particulars were presented in a style that was liable to be struck out. This addressed some headings used, paragraphs summarising matters, and some specific wording that set out conclusions. The applicant submitted that these headings and summary statements facilitated a structured presentation that aided comprehension of the material facts and the way in which the case was to be formulated.
In my view the summary paragraphs and the headings that were struck out do not ‘signpost’ or assist understanding of the document as a whole. This is for two fundamental reasons. First, the paragraphs state some matters at a general and conclusionary level and do not point to particular facts, events or statements that give rise to those conclusions. The summary paragraphs do state the particular instances of discrimination by Hill that are alleged, but those paragraphs add nothing beyond repeating matters set out in Parts D to J which have not been struck out.
Second, those headings that have been struck out do not accurately reflect the paragraphs that immediately follow. For example, the heading in Part K that references ‘assistance’ by the Dean of the Monash Law Faculty in Hill’s conduct prefaces a series of paragraphs that largely deal with the actions of persons other than the Dean. To that extent the heading does not serve to clarify the paragraphs that follow. On other occasions, the headings stand alone and are not accompanied by any explanatory paragraphs. As standalone headings, they are closer to a submission than to a particular.
The Tribunal had the power to strike out those matters identified in ground 1 and no error has been established.

B.3.2 Ground 2

This ground alleges error in striking out parts of the particulars that were ‘intended to guide discovery obligations’. The applicant submits that the overarching obligation of the respondent imposed by the Civil Procedure Act 2010 (Vic) requires disclosure of documents, and facts to be pleaded were not readily ascertainable until aided by the discovery of documents. Discovery requires production of documents relevant to the claim made or defence raised. The scope of discovery is informed by the factual matters alleged. Requests for discovery, as contained in the particulars struck out by order 1(d) of the June order are not proper particulars. No error is established.

B.3.3 Ground 3

This ground addresses the strike out of the remedy:
Compensation for the loss of career prospects and earnings and the emotional toll endured by Weiping He which includes anxiety depressions insomnia and other mental health issues.
The applicant alleges it was premature to strike out the remedy prior to hearing evidence at trial.[42] However, the remedy was not preceded by any particulars that addressed how the applicant alleges her career prospects or earnings have been affected. The applicant is not precluded from seeking leave to plead this remedy, if the basis for that remedy is properly set out.
[42]Applicant’s first affidavit, ‘The Applicant’s proposed grounds of appeal’ at exhibit WH–I [36], see also CB 59.

B.3.4 Grounds 4, 5 and 6

These grounds are directed at the decision to strike out the claims against the Dean of the Monash Law Faculty under ss 103 and 105 of the EO Act. Ground 4 alleges error in determining to strike out particular matters ‘without sufficient care … when the substantive matters in issue are not clear, and are at all arguable and the rights of the Applicant’s depend upon them’.[43] Ground 5 alleges the decision to strike out sections of the particulars was made without consideration of the modern case management context. Ground 6 alleges a failure to consider whether an accumulation of incidents of singling out the applicant over an extended period of more than three years could be argued to be a pattern of behaviour.
[43]Applicant’s first affidavit, ‘The Applicant’s proposed grounds of appeal’ at exhibit WH–I [37], see also CB 59.
The difficulty with these arguments is that nowhere do the particulars attempt to describe the incidents in a way that permits the Tribunal or the respondent to understand what events are being described. By way of example, a sentence that reads ‘the broader treatment of Weiping He…’ was struck out as broader treatment was not defined beyond two instances set out in the particulars (those two instances were not struck out).[44] Similarly, the June order struck out a paragraph commencing:
There was a sustained pattern of behaviour where…[the Dean of the Monash Law Faculty] unfairly singled out and marginalised Weiping He. Weiping He was denied opportunities extended to others, singled out for unfair treatment, and her reasonable requests were disregarded or ignored.
The ‘pattern of behaviour’, which included being singled out, denied opportunities or having requests denied, did not identify any particular instances of such behaviour.
[44]Applicant’s first affidavit, ‘Particulars of Claim’ at exhibit WH–I, Part K [10], see also CB 85.
In a similar way, the two sentences in issue in Part G, struck out by order 1(d) of the June order, describe the opinion and observation of an unnamed colleague of the applicant and reference attendance at conferences. The applicant submits she intended these sentences to demonstrate the link between the Dean of the Monash Law Faculty and other staff members who act on his authority (or as the applicant describes, as ‘his delegates’). These sentences do not achieve this purpose and no error is demonstrated by striking them out. The applicant accepted this during argument.[45] The issue of other staff members acting as delegates which the applicant wishes to pursue, obscured somewhat the identification of relevant facts. The applicant had not identified particular actions that she wished to rely on as discriminatory or as assisting discrimination or as victimisation in breach of the EO Act.
[45]T 33.19–21.

B.3.5 Ground 7

Ground 7 alleges error in failing to consider the role of pleadings[46] in providing an understanding of the relevant factual background. The applicant submits that the particulars identify the respondent’s workplace culture as being part of the relevant factual context for consideration of the claims of discrimination and victimisation. It is for the applicant to expose a causal link between workplace culture and the discrimination alleged against her. The applicant submits that workplace culture is significant in legal deliberations.[47] Whilst this is no doubt accurate in many legal contexts, including workplace injury claims and Australian consumer law claims,[48] the relevance of workplace culture to a claim for unlawful discrimination needs to set out matters of fact that are said to link general workplace matters to acts of discrimination. As the respondent submitted, matters that have happened to others or reflect a culture are only relevant if they are linked to incidents involving the applicant that are alleged to breach the EO Act. In this case the incidents identified as breaching the EO Act are the matters alleged against Hill in Sections D to J of the particulars. The claim does not raise a general inquiry as to the effects of workplace culture on the applicant’s health and wellbeing.
[46]The Applicant’s first affidavit sets out the ‘The Applicant’s proposed grounds of appeal’ at exhibit WH–I and the submissions in support of those grounds refers to the pleadings as submissions. For example proposed ground 7 describes error in ‘failing to consider the role of submissions in assisting the Tribunal’s understanding of the factual background’, CB 63.
[47]Applicant’s first affidavit, ‘The Applicant’s proposed grounds of appeal’ at exhibit WH–I [68], see also CB 63.
[48]The applicant cited ‘WorkSafe Victoria v Court Services Victoria (2023) (unreported)’ a Magistrates’ Court decision for which the Court was unable to find written reasons; see also Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd [2024] FCA 344.

C Conclusion

In my view the Tribunal made no error in ordering parts of the particulars be struck out. In argument the applicant sought to explain the particulars by reference to matters in her affidavit material. In part, both the particulars document and the affidavit material sets out matters by way of submission or argument. The applicant refers to the particulars as her ‘submission’. To the extent that the particulars set out submissions, the document was not compliant with the February order or the purpose of particulars. As mentioned earlier, the June order does not preclude the applicant from advancing claims properly particularised at hearing. The June order is concerned with the proper form of the document and not the substance of the allegations made in the document. In light of the applicant’s ability to seek leave to file a properly drawn set of particulars, and her acknowledgement that in some instances this would be appropriate, I accept that there is little utility in setting aside the June order, even if I am wrong and the applicant could demonstrate error in some particular aspect of grounds 1 to 7.
For these reasons the application for leave to appeal is refused. I will make orders refusing leave to amend the application and refusing leave to make submissions on the ground of actual bias. I will hear the parties as to the form of orders.

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23 December 2024