Applicant v Respondent

1. By its application, the respondent, Monash University ('Monash') seeks security for costs in the amount of $135,000 from Dr Weiping He in respect of her appeal brought against procedural orders made by the Victorian Civil and Administrative Tribunal ('VCAT' or 'Tribunal') on 6 May 2025. The orders in question refused Dr He leave to amend aspects of her particulars of claim, which allege discrimination by staff in the Faculty of Law at Monash ('Law Faculty'), and confirmed an earlier order preventing inspection of the file. The security for costs application is brought pursuant to r 62.02(1)(f) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'), read together with ss 79(1) and 148(7)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), or, alternatively, in accordance with the Court's inherent jurisdiction. In considering the security for costs application, it is necessary to refer to the background of the substantive dispute between the parties and procedural history in some detail.

1. On 19 October 2023, Dr He brought an application in VCAT against Monash, by which she seeks relief under the Equal Opportunity Act 2010 (Vic) ('EO Act') in relation to her employment as an academic at the Law Faculty ('VCAT proceeding').[1] In broad terms, Dr He alleges:

(a) discrimination on the basis of race in the context of her employment by an individual employed by Monash, in breach of s 18 of the EO Act;

(b) that other key staff have authorised or assisted in the discrimination in contravention of s 105 of the EO Act and that Monash is vicariously liable under s 109 for any contravention of the EO Act; and

(c) victimisation in breach of s 103 of the EO Act as a result of informal and formal complaints made by her about her alleged treatment, and a separate complaint to the Australian Human Rights Commission.

1. On 26 March 2024, Dr He filed particulars of claim in the VCAT proceeding which were met with an application by Monash on 30 April 2024 to strike out identified paragraphs. The particulars of claim were detailed (totalling approximately 20 pages) and were arranged by topic headings. On 27 June 2024, Member Cameron struck out certain paragraphs of Dr He's particulars of claim on the basis that they were 'frivolous, vexatious, misconceived, or lacking in substance' ('June 2024 VCAT orders'). Order 3 of those orders provided that, pursuant to s 146(4)(b) of the VCAT Act, the file in the VCAT proceeding cannot be inspected by any person other than the parties and their legal representatives without leave of the Tribunal ('VCAT non-inspection order'). The June 2024 VCAT orders were amended on 3 July 2024 to correct minor formatting errors, but the non-inspection order was unchanged.
2. On 21 July 2024, Dr He applied to this Court[2] seeking leave to appeal the June 2024 VCAT orders ('first appeal'). Justice Forbes heard the application on 25 October 2024 and delivered judgment on 23 December 2024.[3] Her Honour refused the application for leave to appeal, finding the Tribunal had made no error in ordering that parts of the particulars be struck out and observing that the particulars and affidavit material filed by Dr He impermissibly set out matters by way of submission or argument. Her Honour also rejected an allegation that the VCAT member had conducted the relevant hearing in a manner that gave rise to a reasonable apprehension of bias and refused Dr He leave to amend her application to allege actual bias. Justice Forbes then made orders on 28 January 2025 dismissing the application for leave to appeal and ordering Dr He to pay Monash's costs in relation to the appeal.
3. On 25 March 2025, Dr He sought leave to amend her particulars of claim in the VCAT proceeding and to vacate the extant non-inspection order. On 6 May 2025, Senior Member Powles made orders permitting amendments to three sections of the particulars of claim but otherwise dismissing the application for leave to amend and confirming the non-inspection order ('May VCAT orders').
4. On 17 June 2025, Monash commenced proceedings in the Costs Court[4] for the taxation of its costs pursuant to Forbes J's orders of 28 January 2025. Its costs were taxed and allowed in the sum of $99,100 by Costs Registrar Van den Berg on 15 August 2025 ('August taxed costs order'). Monash's solicitors, Clayton Utz, then wrote to Dr He on 1 September 2025 requesting payment of those costs by 15 September 2025. Dr He did not respond to the letter. Clayton Utz followed up with an email dated 24 September 2025, seeking, among other things, confirmation that Dr He had made payment of the August taxed costs order. Again, there was no reply and the costs remain unpaid.

1. On 15 August 2025, the current proceeding was commenced by Dr He seeking an extension of time and leave to appeal pursuant to s 148 of the VCAT Act in respect of the aspect of the May VCAT orders which partly dismissed her application for leave to amend her particulars of claim ('second appeal'). Dr He contends the VCAT member erred in law by failing to take into account relevant and material facts, namely matters set out in paras [2]-[5.3] under 'Part B (Background Facts)' in her proposed amended particulars of claim dated 17 February 2025. In her notice of appeal, Dr He describes these background facts as relating to a broader context of alleged 'sustained and systemic bullying' within the Law Faculty. She contends these facts are essential to determining whether any person 'assisted or authorised' the alleged contraventions within the meaning of s 105 of the EO Act. In addition, Dr He also seeks leave to appeal the decision by the member to refuse to vacate the VCAT non-inspection order.
2. On 10 September 2025, Lorenz JR made scheduling orders for the hearing of the second appeal, listing the proceeding for final hearing on 26 May 2026. The judicial registrar also made an order under r 28.05(4) of the Rules restricting the inspection of the Court file by the parties and their legal representatives ('Court non-inspection order').
3. On 16 September 2025, Dr He filed an appeal in respect of Lorenz JR's orders ('third appeal'). Dr He contended the hearing date should be brought forward on the basis that she has been 'subjected to a prolonged course of victimisation by Monash University'. She submitted that the seriousness of her allegations justified the matter progressing as expeditiously as possible and claimed to experience ongoing victimisation. Dr He also appealed the Court non-inspection order. On 28 November 2025, K Judd J determined the third appeal on the papers.[5] Her Honour was not persuaded that the matters raised by the applicant warranted the matter receiving an earlier hearing date than the date fixed by the judicial registrar.[6] Her Honour also upheld the Court non-inspection order and was satisfied that the nature of the allegations and assertions made by the applicant were such that they ought not be made public as a matter of course, especially in their untested form.[7] Accordingly, her Honour made orders the same day dismissing the appeal and ordered that Dr He pay Monash's costs on a standard basis, to be assessed in default of agreement ('November costs order').
4. On 10 November 2025, Monash filed its summons seeking the following orders:
   1. Pursuant to Order 62.02(1)(f) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) and sections 79(1) and 148(7)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) or the Court's inherent jurisdiction, the Applicant provide security for the Respondent's costs in the sum of $100,000 (or such other amount as the Court determines) and in such form as the Court deems fit (Security).
   2. The Security be provided forthwith or within such further time as the Court deems fit.
   3. The current proceeding numbered S ECI 2025 04730 (Proceeding) be stayed pending:
      1. the provision of the Security in a form acceptable to the Court; and
      2. the Applicant making payment to the Respondent in full the costs ordered to be paid by Order of Costs Registrar Van den Berg dated 15 August 2025 in this Court in the proceeding numbered S ECI 2025 03413, plus applicable interest;

or until the Proceeding is dismissed.

1. The above orders are made without prejudice to the Respondent's right to seek further or alternative orders from the Court in respect of its costs and/or further security for its costs.

2. The Applicant pay the Respondent's costs of and incidental to this application.

6. Such further orders as the Court deems fit.

1. The amount of $100,000 is said to reflect the estimated costs associated with substantially dealing with the second appeal, noting that in the first appeal, which raised similar issues, Monash's costs were $99,100 as reflected in the August taxed costs order.
2. As can be seen, the proposed order at para 3 of the summons seeks not only payment of the nominated security amount but also payment of the August taxed costs order (from the related Costs Court proceeding) as a requirement for the avoidance of a stay, which is unusual.
3. Following the filing of the summons, on 5 December 2025, Monash's lawyers emailed Dr He requesting payment of the amount of $35,000 by 19 December 2025 in discharge of her liability for the November costs order, which remains untaxed. Dr He has not substantively responded to that correspondence.
4. At the hearing, Monash revised the amount of security it seeks from $100,000 to $135,000 to include the estimated value of the November costs order.

1. In support of its application for security for costs, Monash primarily relies upon:

(a) the affidavit in support of the summons sworn by Stuart Matthew Pill, solicitor, on 7 November 2025;

(b) additional affidavits of Mr Pill sworn on 5 September 2025 and 8 December 2025; and

(c) written submissions dated 8 December 2025.

1. In opposing the application for security, Dr He principally relies upon written submissions dated 27 November 2025, together with a short affidavit sworn by her on 28 November 2025 which exhibits a copy of Forbes J's orders of 28 January 2025 dismissing the first appeal and awarding costs against her. In addition, Dr He referred to earlier submissions filed by her on 15 and 19 September 2025, which set out a number of background matters.

1. As previously noted, Monash primarily seeks an order for security for costs pursuant to r 62.02(1)(f) of the Rules, read alongside ss 79 and 148(7)(b) of the VCAT Act, or, alternatively, in accordance with the Court's inherent jurisdiction.
2. Rule 62.02 of the Rules relevantly provides that:

(a) the plaintiff is ordinarily resident out of Victoria;

(b) the plaintiff is a corporation ... and there is reason to believe that the plaintiff has insufficient assets in Victoria to pay the costs of the defendant if ordered to do so;

...

(f) under any Act the Court may require security for costs -

the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against that defendant be stayed until the security is given.

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal -

(a) an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;

(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.

1. Section 79 of the VCAT Act relevantly provides:

(1) On the application of a party to a proceeding, the Tribunal may order at any time -

(a) that another party give security for that party's costs within the time specified in the order; and

(b) that the proceeding as against that party be stayed until the security is given.

1. The principles concerning the exercise of the Court's discretion to order security for costs under r 62.02 of the Rules are well-known.[8] For reasons that will become apparent, it is unnecessary for me to set them out here.
2. In addition to its power under r 62.02 of the Rules, the Court has an inherent jurisdiction to order security for costs. There is, however, a well-established disinclination of the courts to order a natural person to provide security, even where they are impecunious.[9] In Troiano v Voci & Ors ('Troiano v Voci'),[10] Riordan J helpfully explained the nature of the inherent jurisdiction to grant security and the circumstances in which it may be exercised in this way:[11]

The Court has inherent power to regulate its own practice and procedures to procure proper and effective administration of justice and prevent abuse of process.[12] The inherent jurisdiction extends to the Court protecting the efficacy of the exercise of the jurisdiction to award costs by ordering security for costs where, although the circumstances fall outside the categories in r 62.02 of the Rules, it is necessary in the interests of justice to do so.[13]

The exercise of this power is discretionary and is not limited to analogous decided cases.[14] The purpose of the exercise of the inherent power is to prevent the defendant, if successful, from being left with an unenforceable costs order. However, because such an order may stultify the impecunious plaintiff from filing or continuing a proceeding, impecuniosity of a natural person plaintiff, of itself, is not usually enough.[15] In cases where natural persons have been ordered to provide security for costs, the factors, in addition to impecuniosity, have included:

(a) residence outside Australia;

(b) the claim is brought, to a significant extent, for the benefit of others;

(c) lack of prospects of success;[16] and

(d) evidence of the plaintiff avoiding their creditors and financial responsibilities.[17]

The burden of satisfying the Court that the threshold condition has been met and that the Court should exercise its discretion to order security for costs rests on the defendant 'from first to last'.[18] However, matters that are peculiarly within the knowledge of the plaintiff, such as:

(a) whether an order for security would stultify its capacity to conduct the litigation; and

(b) whether the plaintiff's impecuniosity was caused by the defendant,

must be established by the plaintiff.[19]

1. In the context of an application for leave to appeal, the Court of Appeal has referred to 'the magnitude of risk that a costs order would not be satisfied' as being a factor informing the exercise of the Court's discretion to order security.[20] Other recognised factors include: whether the plaintiff's claim is bona fide; delay by the respondent in bringing the application for security;[21] and whether the plaintiff 'has adopted a vexatious mode of conducting the litigation', including by failing to pay existing costs orders (particularly those which relate to a previous case involving similar disputes).[22]
2. As stated above, in cases where natural persons have been ordered to provide security in the exercise of the court's inherent power, some factor in addition to impecuniosity has been present.[23] For example, in Bhagat v Murphy ('Bhagat'),[24] Young J granted an application for security for costs where the individual plaintiff appeared to be impecunious, finding that he had placed his assets out of the reach of creditors and had also 'litigated aggressively over a period of at least three years at great cost to the defendants.'[25] There was also evidence that there had been 16 sets of proceedings relating to the same issue and over a dozen interlocutory motions, most of which had resulted in costs orders being made against the plaintiff that had proven difficult to enforce.[26] His Honour considered the real question was whether it would be vexatious or oppressive to the defendant, or otherwise an abuse of process, to permit the action to continue in all of the circumstances without the provision of security for costs.[27]
3. Similarly, in Willoughby v Clayton Utz ('Willoughby'),[28] Newnes AJA was prepared to make an order for security against a number of individual appellants who were in default of a costs order in an earlier claim, which was the same, or substantially the same, as the subsequent claim the subject of the appeal in respect of which security for costs was being sought.[29] However, it was not in dispute that the appellants would be unable to meet any order as to costs if the appeal was unsuccessful.[30]
4. In Trkulja v Dobrijevic (No 2) ('Trkulja'),[31] Garde J ordered, pursuant to the inherent jurisdiction of the Court, security for costs against a bankrupt plaintiff who had commenced six other proceedings against the defendant, had 13 costs orders outstanding against him in respect of which he had made no payment, and who had been severely criticised concerning his conduct of the proceeding and other proceedings. His Honour concluded it would be unfair to permit the plaintiff to conduct the proceeding without the defendant having any prospect of recovering costs if successful and that a security for costs order would not be oppressive to the plaintiff having regard to the nature and strength of his claim.[32]
5. In Von Marburg v Aldred & Anor (No 3),[33] Derham AsJ refused to grant security for costs in the exercise of the Court's inherent power, distinguishing the facts in Trkulja.[34] His Honour concluded that as natural persons, there was a significant barrier in the way of an order for security and that although the extent of their assets and liabilities were unclear, it could not be concluded that they were impecunious.[35] Similarly, in the earlier decision of Lindgren J in Knight v Beyond Properties Pty Ltd,[36] his Honour concluded there may have been a suspicion, but there was no satisfactory evidence to establish, that the plaintiff was impecunious.[37]
6. In Liu v Resi Ventures Leakes Pty Ltd (No 2),[38] Matthews JR (as her Honour then was) ordered security in favour of one defendant under the Court's inherent power where the plaintiff was impecunious and there were additional factors to warrant the granting of security, including low prospects on the claim and no evidence to suggest the granting of security would frustrate the claim.[39] Likewise, in Stuart v Mordialloc Sporting Club ('Stuart v Mordialloc'),[40] Kennedy J (as her Honour then was) granted security under the Court's inherent power where there was reason to believe that the plaintiff had insufficient assets to pay a costs order if unsuccessful, the plaintiff's case lacked merit, and his failure to properly plead the case (notwithstanding eight attempts to do so) had resulted in delay and inordinate expense.[41] In Troiano v Voci, Riordan J awarded security where an impecunious plaintiff was supported by a litigation funder with an interest in the litigation.[42] More recently, in Pearson v ING Bank (Australia) Ltd,[43] Cooper J found that the plaintiff's impecuniosity was not sufficient on its own to justify the making of an order,[44] but that the plaintiff's claims had very limited prospects of success[45] and that they had conducted the proceeding in a manner which could be properly characterised as vexatious.[46] His Honour explained there is an underlying principle that security for costs would be ordered against an impecunious natural person where, in the circumstances, not to do so would allow proceedings to continue which were vexatious, oppressive or an abuse of the Court's process.[47]
7. In relation to the consideration of the prospects of a claim, the following principles emerge from the authorities:

(a) where a prima facie case and cause of action are apparent on the face of the claim, in the absence of evidence to the contrary, the court will usually proceed on the basis that the claim is bona fide with reasonable prospects of success;[48]

(b) the court will not go into the merits of the claim in detail unless it can be demonstrated there is a high degree of probability of success or failure.[49] The merits of the claim are otherwise treated as a neutral factor;[50] and

(c) a detailed consideration of the merits may be a waste of resources.[51] In particular, assessing a plaintiff's prospects of success is not practicable in any case of reasonable complexity.[52]

Whether security available under r 62.02(1)(f)

1. There is an anterior question of whether Monash is entitled to seek security under r 62.02(1)(f) of the Rules, thereby invoking ss 79 and 148(7)(b) of the VCAT Act.
2. Monash submits the Tribunal's power to order security for costs under s 79 of the VCAT Act may be exercised by this Court in the second appeal by reason of the operation of r 62.02(1)(f) of the Rules and s 148(7)(b) of the VCAT Act as an 'an order that the Tribunal could have made in the proceeding'. Monash also submits that s 79 of the VCAT Act contemplates that security for costs may be ordered against natural persons and it is not conditioned upon a threshold requirement that there must be reason to believe Dr He will be unable to pay its costs if Monash is successful in the second appeal.[53] Once the jurisdiction to order security for costs (and a stay) is enlivened, there is an unlimited discretion. Further, the jurisdiction under s 79 is 'open and unfettered'.[54]
3. At the hearing, I queried Monash's construction of s 148(7)(b) of the VCAT Act and the temporal operation of the provision. Counsel for Monash submitted the Court can make 'an order that the Tribunal could have made in the proceeding' and, in particular, an order for security for costs under s 79, at any stage of an appeal proceeding and not only at its conclusion.[55] However, that construction of s 148(7)(b) appears to run counter to authority.
4. The High Court addressed the nature and scope of powers conferred by s 148 of the VCAT Act in Osland v Secretary to the Department of Justice ('Osland').[56] The case concerned an initial decision by VCAT to allow the appellant access to certain documents under s 50(4) of the Freedom of Information Act 1982 (Vic). The Victorian Court of Appeal had set aside VCAT's decision. On appeal to the High Court, the Court of Appeal's decision was set aside and the matter remitted. On the remittal, the Court of Appeal again allowed the appeal from the order of VCAT. Again, that decision was appealed to the High Court. In allowing the second appeal, French CJ, Gummow and Bell JJ relevantly held:[57]

Section 148 confers "judicial power to examine for legal error what has been done in an administrative tribunal." Despite the description of proceedings under the section as an "appeal", it confers original not appellate jurisdiction; the proceedings are "in the nature of judicial review".

The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise.

...

The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made.

1. Justices Hayne and Kiefel (as her Honour then was) held:[58]

Section 148(7) is concerned with the orders which might be made on an appeal to the Court of Appeal under s 148(1)(a). Paragraph (b) of s 148(7) provides that the Court may make an order that the Tribunal could have made in the proceeding. The power to make such an order, or the other orders listed in s 148(7), arises only following review of the Tribunal's decision for legal error...[T]he powers given by s 148(7) are only to be exercised as a remedial consequence of dealing with an error of law.

1. As Heydon J explained in the same case, the power under s 148(7)(b) can only be exercised after it is determined that the Tribunal has fallen into error.[59]
2. Subsequent to the High Court's decision in Osland, there are decisions of this Court that have proceeded on the basis that the jurisdiction under s 148(7)(b) of the VCAT Act to make a substitutive order will only be enlivened following the identification of an error of law made by VCAT.[60] It is not an order that can be made at an interlocutory stage of the appeal.
3. Further, the subject matter of the second appeal relates to VCAT's decision to disallow certain proposed amendments to Dr He's particulars of claim and to uphold the VCAT non-inspection order. It does not relate to a security for costs order made under s 79. In those circumstances, I do not see how the making of such an order by this Court could be considered to be 'an order that the Tribunal could have made in the proceeding.'
4. Given security is not available under r 62.02(1)(f) of the Rules, it is then necessary to consider whether it ought to be granted pursuant to the Court's inherent jurisdiction.

Whether security available in exercise of inherent power

1. As the authorities confirm, to invoke the Court's inherent power to order security for costs against a natural person, Monash must first establish the threshold requirement that there is a real risk it will be faced with an unenforceable costs order.
2. Monash adduced evidence that Dr He is the registered owner, or co-owner, of one property in New South Wales, four properties in Victoria and four properties in South Australia. While she did not give evidence on the topic, Dr He submitted at the hearing that she does not own all of those properties and some appeared to be owned by another person, or persons, with the same name. She submitted she was in fact only the legal owner of three of the identified properties, being:

(a) a property located at 75 Ross Road, Hectorville, South Australia and more particularly described in volume 5807 folio 852 ('Hectorville property');

(b) a property located at 5 Fernly Court, Wheelers Hill, Victoria and more particularly described in volume 9016 folio 899 ('Wheelers Hill property'); and

(c) a property located at 7 Viggers Parade, Glen Waverley, Victoria and more particularly described in volume 8825 folio 176 ('Glen Waverley property').

1. Dr He submitted she was 'not the equitable owner' of the Hectorville property and that while she and her husband are joint proprietors of the Glenn Waverley property, there are 'also [other] equitable owners'. Further, she said that while she and her husband are also joint proprietors of the Wheelers Hill property, it is heavily mortgaged. She did not, however, give evidence of those matters.
2. The relevant register search statements for these three properties confirm that Dr He is the legal owner of the Hectorville property and the joint proprietor, together with her husband, of each of the Glen Waverley and Wheelers Hill properties. There is a mortgage registered against each of the Hectorville and Wheelers Hill properties. However, the register search statements for the Hectorville and Glen Waverley properties do not disclose any registered equitable interests. The Glen Waverley property is also unencumbered by any registered mortgage or security.
3. Monash submits the Court is left to guess, without any evidence from Dr He, as to the true state of affairs. While I accept it is unclear on the evidence how much equity Dr He may have in each of the properties that she admits to owning, and to what extent she holds any equitable interests for other persons, the fact remains that she either owns or co-owns a number of properties.
4. At the hearing, counsel for Monash submitted that given the non-payment of the August taxed costs order, in the absence of any explanation by way of evidence from Dr He about the reason for her non-payment, the Court should draw an inference that the August taxed costs order and, any future costs order made in the second appeal, will be unenforceable. However, in circumstances where Dr He is the owner or co-owner of several properties, remains employed at Monash, and continues to draw a wage, I do not accept the evidence permits such an inference. Moreover, unlike the position in the Trkulja and Willoughby cases, respectively, there is no evidence that Dr He is bankrupt, nor is it common ground or otherwise clear that a future costs order made in this proceeding in favour of Monash would be unenforceable. While there were 13 outstanding costs orders in Trkulja, and multiple outstanding costs orders in Bhagat, here there are two existing costs orders, one of which was taxed approximately four months ago and the other of which was only made three weeks ago, but is yet to be taxed. Whilst a delay in paying a past costs order may be indicative of a risk that a future costs order will not be paid voluntarily, it does not necessarily mean a costs order will actually prove unenforceable. An unwillingness to pay is not the same as an inability to pay.
5. Monash directed the Court's attention to the New South Wales Court of Appeal decision in Tomanovic Multiown Pty Ltd v Interlux Projects Pty Ltd,[61] where a failure by an appellant to pay an adverse costs order, together with equivocal evidence of the appellant's assets, was sufficient to support the conclusion that there were 'real doubts as to the ability and willingness of the appellant to meet an adverse costs order if the appeal were to be dismissed'.[62] In that case, security was ordered under s 1335 of the Corporations Act 2001 (Cth) and the relevant rules against an appellant company, rather than an individual. But different considerations arise where a corporate litigant is concerned. In the case of Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd,[63] Winneke P and Phillips JA observed:[64]

...The evident purpose behind statutory provisions such as s 1335 is to draw a distinction between corporate plaintiffs and individual plaintiffs. Thus, whilst it may be said that "[t]he basic rule that a natural person who sues will not be ordered to give security for costs, however poor he is, is ancient and well established" [Pearson v Naydler [1977] 3 All ER 531, 533], it is also true that "the whole concept of the general practice with regard to companies is just the opposite. It is the poverty of the company that attracts the power"...[65]

...

...The justification for the statutory rule is that the defendant, not being a voluntary litigant, deserves to be protected from the consequences of limited liability. Those who seek to conduct their businesses through limited liability companies expect to receive the benefits which such liability attracts. It seems to us a necessary corollary that they should be prepared to accept the strictures imposed by the section if the company embarks upon litigation.[66]

1. As I have already noted, Dr He has at least two properties in the jurisdiction and, aside from the unpaid costs orders, there is nothing else that might suggest she is impecunious. Dr He submits that Monash has every practical means of enforcing a costs order in this jurisdiction. There is some force to that submission.
2. The clear difficulties on the evidence in establishing a real risk of an unenforceable costs order may have informed Monash's decision to advance its primary argument that, under r 62.02(1)(f) of the Rules, security should be ordered pursuant to ss 79 and 148(7)(b) of the VCAT Act in circumstances where s 79 does not require evidence of impecuniosity as a threshold requirement for granting security for costs.
3. Dr He also submitted at the hearing that Monash has not attempted to enforce the August taxed costs order and was using the security for costs application as an enforcement mechanism. On this aspect, Monash essentially submitted it should not be put to the time and cost of taking enforcement steps and that, while an order for security might require Dr He to draw upon her properties to meet such an order, she is most likely going to have to do so to meet costs orders against her in any event.[67] Although I accept that is a reasonably likely outcome of the litigation between the parties, it is, of itself, not a good reason to order security. Monash has made the forensic decision to not take active steps to enforce the August taxed costs order,[68] but that does not mean the order is unenforceable in practice. I am also unconvinced that the enforcement process would necessarily have been more costly and time consuming than the security for costs application itself.
4. While Monash submits an order for security for costs is necessary to protect it from ongoing and increasing prejudice as a consequence of Dr He's approach to the litigation and her failure to meet existing costs orders, there is nothing to stop it from taking steps to enforce the August taxed costs order.
5. Relatedly, it will be recalled that Monash seeks in para 3(b) of it summons payment of the August taxed costs order (from a related proceeding) as a condition of the avoidance of a stay of the second appeal. Counsel for Monash properly conceded that is not a conventional order in a security for costs application. Nor is it an appropriate one, in my view. Returning to first principles, an order for security for a litigant's costs is protective in its purpose. It should not be used as a mechanism for enforcing past costs orders.
6. In the finish, there is insufficient evidence to establish that Dr He is impecunious or that there is a real risk that Monash will, if successful in the second appeal, be left with an unenforceable costs order. Put simply, Monash has not discharged its onus of establishing Dr He will likely be unable to satisfy an adverse costs order. It follows that the Court's inherent jurisdiction to award security is not enlivened.

1. The above conclusion is dispositive of the application. It is therefore unnecessary for me to consider other issues raised by the parties or otherwise relating to the application, including:

(a) Dr He's prospects of success in the second appeal, the relative practicality of making an assessment of her prospects in this application, and whether arguments about the merits of the appeal would be better ventilated in an application for summary judgment under s 62 of the Civil Procedure Act 2010 (Vic) and Pt 3 of Order 22 of the Rules and/or an application for summary dismissal under r 23.01 of the Rules;

(b) whether Dr He has adopted a vexatious approach to the litigation, including by reason of her multiple appeals from interlocutory orders and her non-compliance with the August taxed costs order;

(c) whether an order for security would stultify Dr He's capacity to conduct the litigation by compelling her to draw on equity in her properties;

(d) whether the application for security for costs has been brought for a collateral or improper purpose; and

(e) whether Dr He's second appeal and/or the underlying VCAT proceeding raise public interest considerations or serve as a test case.

1. I have found that Monash cannot obtain security under r 62.02(1)(f) of the Rules by invoking the operation of ss 79(1) and 148(7)(b) of the VCAT Act. Those provisions of the VCAT Act have no work to do at the interlocutory stage of an appeal from VCAT. The Court's power to make a substitutive order under s 148(7)(b) of the VCAT Act is only engaged in the event the second appeal is successful and an error of law is identified in the member's decision. Further, in relation to the Court's inherent jurisdiction to award security, Monash has also failed to establish at a threshold level that Dr He is impecunious and that there is a real risk it will face an unenforceable costs order if it is successful in the second appeal. Dr He has an interest in real property against which a costs order can potentially be enforced. The interests of justice do not favour the granting of security.
2. Subject to hearing further from the parties, I propose to dismiss Monash's summons with no order as to costs given Dr He is self-represented.

[3] He v Monash University [2024] VSC 826 (Forbes J).

[5] He v Monash University [2025] VSC 737.

[8] See the convenient distillation of those principles in Hera Project Pty Ltd v Bisognin & Anor [2017] VSC 112, [6] (Matthews JR, as her Honour then was) and Stuart v Mordialloc Sporting Club Inc [2020] VSC 658, [60] (Kennedy J, as her Honour then was).

[9] Knight v Beyond Properties Pty Ltd [2005] FCA 764, [2] (Lingren J) ('Knight v Beyond Properties').

[10] (2019) 61 VR 511.

[11] Ibid 517-518 (citations included).

[12] Lines v Tana Pty Ltd [1987] VicRp 53; [1987] VR 641, 642 (Crockett, O'Bryan and Tadgell JJ); Rajski v Computer Manufacture & Design Pty Ltd (1982) 2 NSWLR 443, 447 (Holland J) ('Rajski').

[13] Rajski, 447; Guss v Sullivan [1998] VSC 64 (Byrne J); Houlahan v Trentham Investment Management Pty Ltd (No 2) [2016] VSC 445 (McMillan J); Trkulja v Dobrijevic (No 2) [2016] VSC 596 [20] (Garde J) ('Trkulja'); Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 [33] (Hodgson JA with whom, on this point, both Basten and Campbell JJA agreed).

[14] Rajski, 448-449; Marburg v Aldred (No 3) [2017] VSC 146 [39] (Derham AsJ).

[15] Pearson v Naydler [1977] 3 All ER 531, 533 (Megarry VC).

[16] See the cases referred to in Knight v Beyond Properties [33].

[18] Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377, 383 (Maxwell P and Buchanan JA).

[20] Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd (No 3) [2016] VSCA 185, [19] (McLeish JA); Towns (A Pseudonym) v Towns (A Pseudonym) [2024] VSCA 300 [22] (McLeish, Kennedy and Walker JJA).

[21] Mbuzi v Hall [2010] QSC 359 [66] (Applegarth J) ('Mbuzi v Hall'), citing Morris v Hanley [2000] NSWSC 957, [23]-[24] (Young J) ('Morris v Hanley'). See also Bhagat v Murphy [2000] NSWSC 892, [18]-[28] (Young J) ('Bhagat') and Willoughby v Clayton Utz [2008] WASCA 93, [14] (Newnes AJA).

[22] Mbuzi v Hall [68]-[69], citing Weger v Boola Boola Petroleum and Natural Gas Co NL [1923] VicLawRp 46; [1923] VLR 570, 572.

[23] Knight v Beyond Properties [32]-[33], citing Barton v Minister for Foreign Affairs (1984) 2 FCR 463, 594 (Morling J) (impecuniosity and residence outside Australia); Cunningham v Olliver (unreported, Burchett J, 21 November 1994) (but for delay, security would have been ordered on ground of impecuniosity and bringing of claim to a significant extent for benefit of others); Chang v Comcare Australia [1999] FCA 1677, [32] (Moore J) (impecuniosity and lack of prospects of success); Loque v Hansen Technologies Ltd [2003] FCA 81 (Weinberg J) (impecuniosity and residence outside Australia); Morris v Hanley [21], [38], [39] (Young J) (impecuniosity and lack of prospects of success and large costs involved to defendants). Justice Young's decision in Morris v Hanley was reversed on appeal on the ground that the defendants had not adequately explained their delay in moving for security, but the Court of Appeal did not criticise other aspects of his Honour's reasons: see Morris v Hanley & Ors [2001] NSWCA 374, [30]-[31]). See also Von Marburg v Aldred (No 3) [2017] VSC 146, [41] (Derham AsJ) ('Von Marburg').

[24] [2000] NSWSC 892.

[28] [2008] WASCA 93.

[31] [2016] VSC 596.

[33] [2017] VSC 146.

[36] [2005] FCA 764.

[38] [2019] VSC 638.

[40] [2020] VSC 658.

[41] Ibid [86]-[89], [92]-[93], [111].

[43] [2023] QSC 86; (2023) 14 QR 170.

[47] Ibid [48] citing Melville v Craig Nolan and Associates Pty Ltd [2002] NSWCA 32; (2002) 54 NSWLR 82, 119 and Mbuzi v Hall [61], [65].

[48] KP Cable Investments Pty Ltd v Meltglow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189, 197 (Beazley J); Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, [18] (Margaret Wilson AJA, with Margaret McMurdo P and Applegarth J agreeing); Von Marburg [44]; Zhao v CN-AU Capital Pty Ltd; CN-AU Capital Pty Ltd [2025] QSC 290 [41] (Muir J) ('Zhao v CN-AU Capital').

[49] Suncare Constructions Australia Pty Ltd v Gainspace (Mackay) Pty Ltd [2016] QSC 67, [11] (Jackson J), quoting ACN 006 577 162 Pty Ltd (formerly Harrop Engineering Australia Pty Ltd) v Beauville Pty Ltd [2014] VSC 298, [8] (Derham AsJ).

[50] Mio Art Pty Ltd v Mango Boulevard Pty Ltd [2018] QSC 31, [60]-[61] (Daubney J), quoting Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 564, 574 (Austin J); Zhao v CN-AU Capital [41].

[51] Von Marburg [44] citing Impex Pty Ltd v Crowner Products Ltd (1994) 13 ACSR 440.

[52] Ibid citing Interwest Ltd v Tricontinental Corp Ltd (1991) 5 ACSR 621.

[53] Citing Hapisun Pty Ltd v Rikys & Moylan Pty Ltd [2013] VSC 730, [31]-[34].

[54] Citing Moulieris v ACN 115 918 959 Pty Ltd [2018] VSC 782, [8]; see more generally at [6]-[9].

[55] Transcript of Proceedings, He v Monash University (Security for Costs) (Supreme Court of Victoria, S ECI 2025 04730) ('Transcript'), 33-34.

[56] [2010] HCA 24; (2010) 241 CLR 320.

[57] Ibid 331-333 (citations omitted) (emphasis added).

[58] Ibid 353 (citations omitted) (emphasis added).

[60] See TJBP Pty Ltd v Brown [2013] VSC 173; RSSB Australia Pty Ltd v Ross [2017] VSC 314; Lendlease Engineering Pty Ltd v Owners Corporation No 1 [2021] VSC 471; Zhang v Oakmont Properties Pty Ltd (2023) 71 VR 425.

[61] [2022] NSWCA 38.

[63] [1999] VSCA 43; [1999] 2 VR 191.

[66] Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301, 304.

[68] In contrast to apparent attempts by the defendants to enforce costs orders in the Bhagat case.