Self-represented litigants and indemnity costs: Chen v Monash University  FCA 130
A former senior lecturer and professor of Monash University, has been ordered to pay $900K in indemnity costs, after “unreasonably” rejecting a settlement offer.
In March 2015, Dr Chen, a self-represented litigant, commenced proceedings against her former employer, Monash University.
Chen made 53 allegations of sex discrimination and sexual harassment, occurring over a 5 year period, during her employment as a senior lecturer and Associate Professor in the Department of Materials Engineering.
Chen admitted at trial that although she did not consider these events to constitute sexual discrimination, harassment or career “sabotage” at the time they occurred, the rejection of her application for promotion in 2011 led her to reassess past events and draw these new conclusions.
Among Dr Chen’s 53 allegations, such instances of misconduct included:
- Inappropriate emails from Professor Simon, in apologising for having to ‘go to bed’ as Chen believed that the reference to ‘bed’ in a professional email was inappropriate. Professor Simon’s use of the phrase in “peace and quiet” in scheduling a suitable time to meet to discuss Chen’s research work, as she believed that this “behaviour” indicated Simon’s desire to “trap her for consensual sex”.
- Professor Simon’s behaviour in asking Dr Chen and another colleague if they had seen his car upon bumping into them in the carpark, as Chen believed that this was evidence of stalking.
The Federal Court rejected all allegations on the grounds that they either did not, as a matter of law, constitute sexual discrimination or harassment, or were not supported by evidence.
Request for recusal
Dr Chen, in the process of appealing this decision, then requested for the recusal of the managing judge as she claimed that the judge’s association with Monash University indicated that her case was being “virtually managed by the Respondent University”.
Her request, however, was refused on the grounds that while the judge was a member of a post-graduate law advisory panel and briefly taught in the law faculty 5 years ago, her appeal concerned discrimination in the engineering faculty and demonstrated no substantial connection to either the law faculty or the advisory panel.
Most notably, during this period Monash University also made Dr Chen a “generous” offer of settlement for $30,000.
Despite the advice of a Senior Lawyer from Victoria Legal Aid that her appeal would not be successful, Dr Chen rejected the offer on the grounds that it failed to address “the real dispute” as she did not desire monetary compensation.
Ultimately, the Federal Court on Appeal found that Chen’s rejection of the offer was “unreasonable” as her claim did seek a considerable sum by way of compensation, despite her contradictory reasons for refusal, and she not only was in possession of independent legal advice which highlighted the weakness of her case, but was also made well aware by the University’s solicitors of the implications of failing to accept such an offer. Consequently, Dr Chen was ordered to pay a lump sum of $900,000 to Monash University.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.