Weber v Deakin University [2018] VSCA 53

1 On 13 September 2017 Mr Weber was granted leave to appeal[1] from a judgment of McMillan J[2] dismissing:

(a) an appeal from a judgment of Derham AsJ refusing leave to appeal on a question of law under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act');[3] and

(b) an appeal under s 109 of the Magistrates' Court Act 1989 against a decision of the Magistrates' Court of Victoria permanently staying Mr Weber's claim against the respondents that he had been discriminated against and was entitled to damages pursuant to s 242AD of the Accident Compensation Act 1985 ('Accident Compensation Act').

2 Mr Weber was granted leave to appeal on the following grounds:

(a) The Victorian Civil and Administrative Tribunal ('VCAT') failed to make a determination that the claim was frivolous, vexatious, misconceived or lacking in substance, and dismissed the claim in circumstances where the applicant was entitled to a full hearing.

(b) The Magistrate's decision was premised on the validity of VCAT's decision which was invalid by reason of ground (a).

3 The primary issue in the current appeal is the validity of an order made by VCAT pursuant to s 75 of the VCAT Act on 6 November 2014 dismissing Mr Weber's application under the Equal Opportunity Act 2010 ('EO Act'). We have concluded that the VCAT member failed to properly exercise the power of summary dismissal conferred by s 75. However, we have concluded that the Tribunal dismissed Mr Weber's application pursuant to an order made at a compulsory conference on 22 April 2014 ('the compulsory conference order') which the Tribunal had power to make. The compulsory conference order permitted the respondents to make a no case submission at the conclusion of Mr Weber's evidence, with the application to be determined 'as if it was a final submission on the balance of probability'. We have concluded that in substance the Tribunal dismissed Mr Weber's application in accordance with the terms of the compulsory conference order. We have rejected the contention advanced on behalf of Mr Weber that he was denied procedural fairness in the circumstances in which VCAT heard and determined the application for dismissal of the proceeding. In particular, we have rejected the contention that Mr Weber did not understand that if the Tribunal acceded to the dismissal application he would be precluded from leading further evidence.

4 Mr Weber commenced employment with Deakin University ('the University') on 19 January 2009 as an academic. He was employed as a level B lecturer in the School of Architecture and Building in the Faculty of Science, Engineering and Built Environment. His direct supervisor was the second respondent, Mr Hisham Elkadi. His employment was subject to the University enterprise agreement. On 26 October 2009 Mr Elkadi provided a copy of the proposed work allocation for 2010 to all academic staff within the School of Architecture and Building. On 16 November 2009 the Dean of the Faculty, Professor Chris Gray, advised all staff that a new faculty workload model was to be released. On 1 December 2009 staff were requested to fill out the model and return it by week's end.

5 On 17 December 2009 Mr Weber advised Mr Elkadi that he was unhappy with the workload allocation and required it to be reviewed. He informed Mr Elkadi of his view that under his employment contract and the enterprise agreement:

I have the right to work only to a reasonable workload that is fair and equitable. At this point, either way we look at it, I am over my allocated workload and intend to work within my contract rights.

6 Mr Elkadi responded that Mr Weber's workload was not excessive and that the Dean had suggested that all staff needed to undertake more teaching duties. Mr Weber maintained his position that the workload proposal was contrary to the enterprise agreement. He was told that the matters he had raised would be addressed in the new year.

7 In February 2010 Mr Elkadi sent an email to all staff stating that he had received complaints about the current workload. Mr Weber claims that he was the person referred to in the email. Later that afternoon another staff member arranged a meeting between staff and the union to discuss work allocations. Mr Elkadi stepped in and advised that the union would not be involved in the process. The following day he sent an email to all staff advising of his plans for the workload allocations and stating his intention to have workload allocated on a school-based model. Mr Weber replied to Mr Elkadi, copying in academic staff. He again raised his concerns with his workload and the general attitude of the school in relation to the application of the enterprise agreement.

8 Mr Elkadi responded by referring back to an agreement about workload. He raised issues with Mr Weber's attendance at a scheduled workshop meeting. The email was sent only to Mr Weber. Mr Weber challenged the need for his attendance at the workshop, citing the enterprise agreement in place at the University. During this email he also advised Mr Elkadi that, '[i]t is timely that I advise you that I suffer from Acute Depression.' This occurred on 17 February 2010.

9 Thereafter, conflict between Mr Weber and the University escalated. Such conflict was initially focussed on the proposed workload model and Mr Weber's belief that his proposed allocation of work contravened the enterprise agreement. During the period from February 2010 until Mr Weber ceased work in November 2013 further conflict ensued in respect of performance reviews, Mr Weber's role as chair of an academic progress committee, and his belief that the University had failed to make reasonable adjustments to accommodate his depression.

10 On 6 November 2013 Mr Weber filed a complaint in VCAT. He alleged three separate breaches of the EO Act:

(a) direct discrimination in breach of s 8(1) on the basis of his attributes including disability (depression), employment activity and industrial activity in relation to various occurrences, which included denying him promotion, preventing him carrying out his duties and poor performance reviews;

(b) contravention of ss 7(1)(b) and 20 by reason of the University's failure to make reasonable adjustments to accommodate his disability;

11 On 25 February 2014 Mr Weber filed amended particulars of claim against the University and 11 employees of the University. Each of the individual respondents had, to varying degrees, dealings with Mr Weber in respect of issues which had been a source of conflict between himself and the University during the period 2010 to late 2013. His amended particulars of claim were 156 pages in length, comprising 391 paragraphs. They referred to 366 exhibits.

12 On 20 March 2014 Mr Weber issued a proceeding in the Magistrates' Court against five defendants, being the University, three of the eleven individual respondents to the equal opportunity claim, and one additional employee of the University. He alleged discrimination in contravention of the Accident Compensation Act. That proceeding was later struck out and reinstatement was refused. On 16 March 2016 the proceeding was permanently stayed on the grounds that it was an abuse of process in light of the VCAT proceeding that had by then been determined.

13 On 22 April 2014 Senior Member Megay convened a compulsory conference at VCAT. The Senior Member ordered that Mr Weber's amended particulars of claim, together with the exhibits referred to therein, were to stand as his witness statement. The Senior Member also ordered:

1. The respondents have liberty to apply at the conclusion of the applicant's evidence for an adjournment to prepare a response if the justice of the case requires.
2. In the alternative, at the conclusion of the applicant's case, the respondent shall be at liberty to make a submission that the application should be dismissed and this application can be made without the respondents being put to their election and shall be determined as if it was a final submission on the balance of probability.[4]

14 Mr Weber conducted his case over three days at VCAT: 22, 23 and 25 July 2014. In addition to his amended particulars of claim and the 366 exhibits referred to therein, he tendered a substantial quantity of additional documents. He also gave additional oral evidence. He called two witnesses, both employees of the University.

15 The first two days of hearing were transcribed but there is no transcript of day three. Amy Goricanec, a law clerk employed by the respondents' solicitors, swore an affidavit exhibiting her notes of the third day of hearing. The notes record that the proceeding was adjourned at 12:10 pm after Mr Weber had confirmed that he had concluded his evidence. Upon the resumption of the proceeding Mr Weber stated that he had 'missed five things' prior to concluding his evidence. He was permitted to address those five matters and was then subject to further cross-examination. At the conclusion of his evidence counsel for the respondents stated that the respondents wished to make an application pursuant to s 75 of the VCAT Act for the dismissal of the application. In response, the Tribunal Member stated that she would deal with Mr Weber's evidence 'at its highest'. She requested Mr Weber to file a written outline addressing:

(b) reference to the additional material he relied upon;

(c) how the conduct of the respondents constituted discrimination and victimisation;

(d) case law, documentation and legislation in respect of his claim that he had been victimised for bringing a claim of discrimination.

16 Mr Weber was directed to provide written submissions within three weeks subject to his right to seek an extension. Mr Weber confirmed that he would be expanding on his witness statement as, since the orders of Senior Member Megay made on 22 April, 'more issues had arisen'. The Member stated that she had booked the case in for a further five days for the respondents to put their evidence as requested by Mr Weber 'subject to any determination I make with the summary dismissal application.'

17 The respondents were directed to file and serve written submissions in support of the application to dismiss the proceeding and Mr Weber was directed to file and serve a written response.

18 The preamble to the orders made by the Member on 25 July 2014 states:

The Applicant having concluded his evidence and the Respondents electing to make submissions that the Applicant's case be dismissed (in accordance with the order of the Tribunal dated 22 April 2014), the Tribunal orders and directs as follows ...[5]

19 On 6 November 2014 the Tribunal made the following orders:

1. Pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application for summary dismissal is granted.

1. The scheduled resumption of the hearing on 17 November 2014 is vacated.
2. The Respondents are given liberty to apply to the Tribunal for costs, such liberty to be exercised on or before 15 December 2014. If an application for costs is made, the principal registrar is directed to refer the matter to me for consideration as to the appropriate directions to make for filing submissions.

20 The Tribunal's Reasons were published on 20 November 2014.[6] Under the heading 'APPLICATION FOR SUMMARY DISMISSAL', the Member stated:

The application to summarily dismiss the proceeding, followed the presentation of all the Applicant's evidence to the Tribunal.

The Respondents claim that the proceeding is frivolous, vexatious, misconceived or lacking in substance. They further claim that it is an abuse of process by reason of alternate proceedings running in another jurisdiction for bullying, victimisation and discrimination under the Accident Compensation Act 1985 ("the Workcover claim").

Section 75 of the Victorian Civil and Administrative Tribunal Act 1998, is the basis for an application for summary dismissal before the Tribunal and states:

Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay another party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by -

(a) the Tribunal as constituted for the proceeding; or

(b) a presidential member; or

(c) a member who is a legal practitioner.

(4) An order under subsection (1) or (2) may be made on application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

Mr Weber submits that the onus of establishing a ground for summary termination rests with the party who has made the application. He says the Tribunal should assume for the purposes of the application that the Applicant can prove all the allegations made in the Application. To this end the Applicant seeks that the strike out application by the Respondents for summary dismissal under section 75 of the VCAT Act be rejected on the grounds that the Applicant has demonstrated on the balance of probabilities in the evidence thus far, the Respondents have a case to answer in respect of these proceedings.

While the Tribunal must exercise the greatest of caution in dismissing any case summarily, in the majority of cases in which summary dismissal is sought the Applicant has not put all the evidence before the Tribunal. The present application for summary dismissal has occurred after Mr Weber has led all of his evidence. His case is at its highest. The questions for determination by the Tribunal, are the same as those that would have to be answered at the end of a hearing - Has Mr Weber established on the balance of probabilities that there has been discrimination or victimisation? Has Mr Weber established a basis for the argument that the Respondents have failed to provide reasonable adjustments to accommodate his disability? These questions will be answered below.[7]

21 In her summary of conclusions, the Member stated:

The evidence presented to the Tribunal does not support a claim of discrimination or victimisation under the EO Act.

There is no evidence, either directly or by inference, which leads to a conclusion that any of the Respondents have engaged in any unfavourable treatment towards Mr Weber as a result of him having any of the attributes identified. I take the view that the actions taken by the University have been more about managing Mr Weber and his conduct. I find that the University and its staff have been very sensitive to Mr Weber's mental health and have had to engage in a challenging balancing act - between not wanting to take action that results in an exacerbation of Mr Weber's condition - while protecting the interests of other staff and their obligations under University procedure and governing employment laws and regulations.

Mr Weber has not satisfied the Tribunal on the evidence presented, that he has been treated unfavourably because of any of the attributes identified. The Tribunal is also not satisfied that he has been victimised as a result of his complaints of discrimination under the EO Act.

The Respondents application for summary dismissal is granted. The order of the Tribunal is that the Application is dismissed. The scheduled resumption of the hearing on 17 November 2014 is vacated. The Respondents are given liberty to apply to the Tribunal for costs, such liberty to be exercised on or before 15 December 2014. If an application for costs is made, the principal registrar is directed to refer the matter to me for consideration as to the appropriate directions to make for filing submissions.[8]

22 In the leave to appeal judgment Whelan and Hansen JJA stated:

It seems that the VCAT member did expressly find that the claims concerning reasonable adjustments and victimisation were without substance. Her other findings, read with the description of her task as quoted earlier, are open to be read as findings on the balance of probability. If that is so, it is arguable that she had not found the claims to be 'lacking in substance', in the sense of being 'undoubtedly hopeless', but had assessed them by reference to the balance of probabilities, and it is arguable that s 75 did not permit that course.

A potentially important issue which has not yet been addressed is whether what the VCAT member did is, in any event, valid and appropriate pursuant to the order made by Senior Member Megay, which we quoted earlier. We did not hear argument on that issue, but the potential for there to have been a conflation of Senior Member Megay's order and s 75 seems to exist. If the dismissal was appropriate pursuant to Senior Member Megay's order, any deficiency in the application of s 75 may be seen as inconsequential. As we say, no argument has yet been addressed to this issue.[9]

23 The reference in the passage set out above to 'the description of her task as quoted earlier' is a reference to paragraph 18 of the Tribunal's Reasons, mentioned above, in which the Member stated:

The questions for determination by the Tribunal, are the same as those that would have to be answered at the end of a hearing - Has Mr Weber established on the balance of probabilities that there has been discrimination or victimisation? Has Mr Weber established a basis for the argument that the Respondents have failed to provide reasonable adjustments to accommodate his disability? These questions will be answered below.

24 Whether a claim is frivolous, vexatious, misconceived or lacking in substance within the terms of s 75(1) is not to be determined in accordance with the balance of probabilities. In order for the power of dismissal under s 75 to be enlivened the Tribunal must have a higher degree of satisfaction. In Forrester v AIMS Corporation Kaye J concluded that a claim is 'misconceived' for the purposes of s 75(1) if it is 'undoubtedly hopeless'.[10]

25 The VCAT Member did expressly find that Mr Weber's claims concerning reasonable adjustments and victimisation were without substance. With respect to the claim that the University had failed to make reasonable adjustments, she concluded that 'there is no substance to the claim that reasonable adjustments were not made by the University.'[11] With respect to the claim of victimisation, she determined '[t]he application related to victimisation is ... dismissed as lacking in substance.'[12]

26 Prima facie, these findings are consistent with the terms of s 75(1). However, many of the Tribunal's findings in respect of Mr Weber's claim that the respondents discriminated against him were made by reference to the balance of probabilities:

I am also not satisfied that Mr Weber's challenge to his workload allocation was a reason for his rating, let alone a substantial reason ...

For reasons already stated, I am of the view that the major reason behind the increase to workload allocation was a directive across the University for all Staff to increase their output ...

...

I am of the view that the actions of Mr Elkadi and Professor Campbell were as a result of looking after the interests of other staff and the University rather than any reprisal for Mr Weber's employment activity.

...

Was Mr Weber's involvement in industrial activity a substantial reason for any unfavourable treatment he received? I am of the view it was not.

...

The more probable explanation for the result is that it was based on an assessment of performance against a workload model which was, on Mr Weber's view, excessive. It is also of note that much of Mr Weber's time during 2012 was consumed with challenging University policy and procedure.

...

He has failed to satisfy the Tribunal that the industrial activity was a reason for his treatment as APC chair.

...

I am not satisfied that Mr Weber's position within the University has suffered any harm as a result of any actions on the part of the Respondents, either while Mr Weber was APC chair or arising from his removal from the global email system. Any harm that Mr Weber has suffered to his reputation or standing within the University is more than likely attributable to the actions by Mr Weber himself and the nature and tone of the emails he sent to staff members.

...

The Tribunal is not satisfied that the Applicant has established any link between a change to his position at the University, and any action by the Respondents.

...

The Tribunal is not satisfied that there has been any breach of confidentiality by the Respondents in relation to any disclosures.

...

While the Tribunal might be able to infer (given some foundation) the reason that an applicant has suffered harm is as a result of a complaint made under the EO Act, it cannot infer that there has been a detriment. The Applicant must establish on the balance of probabilities that he has suffered a detriment. Such a detriment cannot be inferred.[13]

27 Dr Freckelton QC, who appeared for the respondents, submitted that, on a fair reading of the Tribunal's Reasons, the Member did make a finding that Mr Weber's claims, in their entirety, were lacking in substance. He pointed to numerous findings by the Member that there was 'no evidence' to support particular allegations.[14] It is correct that the Member made multiple findings that particular allegations were not supported by any evidence. However, it is equally true that, as set out above, many of the Member's findings were couched in terms consistent with an assessment of the merits of Mr Weber's case on the balance of probabilities. Indeed, the Member expressly identified as one of the questions for determination by the Tribunal, whether Mr Weber had established on the balance of probabilities that there had been discrimination or victimisation. This is so even though the Member ultimately determined, as mentioned above, that the complaint of victimisation had no substance.

28 The Member conflated two discrete bases for dismissing the proceeding:

(a) the compulsory conference order which granted leave to the respondents to make a no case submission at the conclusion of Mr Weber's case, to be determined as if it was a final submission on the balance of probabilities; and

(b) the right to make a summary dismissal application pursuant to s 75 of the VCAT Act.

29 The Member's conflation of these two discrete bases for dismissing the application is apparent from the preamble to the order made on 25 July 2014 which stated that the respondents' election to make a submission that Mr Weber's case be dismissed was in accordance with the compulsory conference order.

30 Our conclusion that the Member conflated two discrete bases for the dismissal of the application does not result in a finding that the Tribunal's order dismissing the proceeding was invalid. Two questions arise. First, did the Tribunal have power to make an order conferring upon the respondents the right to make a no case submission without being put to their election? If so, was it appropriate for the Member to dismiss the proceeding on the balance of probabilities?

31 Mr Ribbands, who appeared for Mr Weber, submitted that there was 'no doubt' that the Tribunal had power to dismiss an application if there was no case to answer. Mr Ribbands submitted that the source of this power is a combination of a number of provisions of the VCAT Act. He referred in particular to s 80(1) which empowers the Tribunal to give directions 'at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.' Mr Ribbands submitted that the right of a respondent at the conclusion of an applicant's case to choose not to call any evidence and advance a no case submission is implicit in the adversarial nature of proceedings in VCAT.

32 There is no express provision in the VCAT Act which confers on the Tribunal the power to make orders in respect of the hearing and determination of a no case submission. Nevertheless, the right of a respondent to advance a no case submission at the conclusion of an applicant's case is a necessary concomitant of the adversarial nature of proceedings in the Tribunal. A respondent who does not wish to lead evidence at the conclusion of an applicant's case cannot be forced to do so. The ultimate determination remains a determination on the merits. If the proceeding is dismissed, as here, it is not a summary dismissal and the preconditions to s 75 do not need to be met.[15]

33 The compulsory conference order did not simply confer upon the respondents the right to make a no case submission. It also conferred upon them the right to do so without being put to their election to forego the right to lead evidence in the event that the no case submission was rejected. The Tribunal had power to make an order in those terms pursuant to ss 80(1), 83(2)(d) and 98(3). Section 83(2)(d) is an express grant of power in respect of compulsory conferences. It provides that the function of a compulsory conference is to allow directions to be given concerning the conduct of the proceeding. Section 98(3) provides '[s]ubject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.'

34 In the current proceedings, no party advanced any submission that the compulsory conference order was invalid by reason of it conferring upon the respondents the right to make a no case submission without being put to their election. In Protean (Holdings) Ltd (recs & mgrs apptd) v American Home Assurance Co Tadgell J observed:

Even so, to allow a party to make a submission of no case without putting him to his election not to call evidence is regarded as a departure from a general rule that an election should be required: Humphrey v Collier [1946] VicLawRp 60; [1946] VLR 391. Such a departure from the general rule can seldom be justified unless adherence to the rule would not serve the ends of justice or convenience: Sampson v Richards [1949] VicLawRp 2; [1949] VLR 6; Jones v Peters [1948] VLR 331.[16]

35 The Tribunal's powers to give directions under s 80(1) includes a power to do 'whatever is necessary for the expeditious or fair hearing and determination of a proceeding.' This criterion is analogous to the 'ends of justice or convenience' referred to by Tadgell J in Protean.

36 When the compulsory conference order was made, Senior Member Megay also ordered that Mr Weber's amended particulars of claim, together with the 366 exhibits referred to therein, were to stand as his witness statement. At that time the Senior Member had a clear understanding of the evidence to be led by Mr Weber. Equally, the Senior Member was in a sound position to make an assessment of whether conferring upon the respondents the right to make a no case submission without being put to their election was necessary for the expeditious or fair hearing and determination of the proceeding.

37 We have concluded that the concession made by counsel for Mr Weber that the Tribunal had power to dismiss the proceeding pursuant to the compulsory conference order was properly made. Further, we have concluded that the Senior Member had power to make a direction that the respondents could make a no case submission without being put to their election.

38 Mr Ribbands submitted that although the Member had power to dismiss the proceeding in accordance with the compulsory conference order, the exercise of that power was tainted by a denial of procedural fairness. Mr Ribbands submitted that Mr Weber was denied procedural fairness by reason of the failure of the Member to have forewarned him that there would be no opportunity for Mr Weber to adduce further evidence. Mr Ribbands submitted that the procedure which was followed by the Tribunal was confusing and resulted in a failure to ensure that Mr Weber, as a self-represented litigant, understood his rights so that he was not unfairly disadvantaged by being in ignorance of those rights.

39 We have set out earlier in this judgment the evidence regarding the exchanges which took place between the Member and Mr Weber at the conclusion of his evidence on 25 July 2014.[17] The evidence is that the Tribunal Member only proceeded to hear the dismissal application after Mr Weber had been given the opportunity to present all of the evidence he wished to present. A finding to this effect has already been made by Derham AsJ[18] and by the Court of Appeal in the leave to appeal judgment.[19] We do not consider that there is any legitimate basis for revisiting these findings.

40 Further, the evidence regarding the exchanges that took place between Mr Weber and the Member at the conclusion of his evidence supports a finding that Mr Weber was left in no doubt that if the dismissal application was granted he would not be able to lead any further evidence. Following the conclusion of his evidence the Member set aside a further five days of hearing for the purposes of providing the respondents with an opportunity to lead evidence. The timetabling orders made by the Member commenced with the words '[t]he Applicant having concluded his evidence ...'.[20] The Member stated that whether the hearing proceeded was subject to the outcome of the dismissal application. Although self-represented, Mr Weber is an intelligent and well-educated individual. There was no room for any doubt that he would have understood that if the dismissal application was successful the proceeding would come to an end. That conclusion is not affected by the consideration, also relied upon by Mr Ribbands, that Mr Weber had been given a short adjournment earlier in the morning as a result of his emotional state.

41 As set out above, we have concluded that there was a conflation of the no case submission authorised by the compulsory conference order and summary dismissal pursuant to s 75. As a result, the application for dismissal was determined on the balance of probabilities. Mr Weber was not denied procedural fairness as a result of the conflation. It is clear from the Member's summary of Mr Weber's submission that he resisted the summary dismissal application by seeking to establish on the balance of probabilities, on the evidence he led, that the respondents had a case to answer:

Mr Weber submits that the onus of establishing a ground for summary termination rests with the party who has made the application. He says the Tribunal should assume for the purposes of the application that the Applicant can prove all the allegations made in the Application. To this end the Applicant seeks that the strike out application by the Respondents for summary dismissal under section 75 of the VCAT Act be rejected on the grounds that the Applicant has demonstrated on the balance of probabilities in the evidence thus far, the Respondents have a case to answer in respect of these proceedings.[21]

42 Mr Ribbands also submitted that the Tribunal had made findings based on evidence which had been filed by the respondents but which had not been tested. He referred, in particular, to the Tribunal's finding that: '[t]he evidence from Professor Day was also that home duties were not available at that time for Mr Weber, as it was half way through the semester.'[22] At face value, this passage does appear to be a reference to untested evidence filed on behalf of the respondents. However, the Court was not taken to any evidence which had in fact been filed by the respondents prior to the determination of the dismissal application. The directions made by Senior Member Megay on 22 April 2014 relieved the respondents of the obligation to file any evidence prior to the applicant presenting his case. The respondents had liberty 'to apply at the conclusion of the applicant's evidence for an adjournment to prepare a response if the justice of the case requires.'[23]

43 As mentioned, the amended particulars of claim filed by Mr Weber were ordered to stand as his witness statement. There were 366 exhibits annexed to the amended particulars of claim. In addition, Mr Weber tendered further documents during the three days of hearing. The reference set out above to 'the evidence of Professor Day' is almost certainly a reference to statements made by him as recorded in the exhibits annexed to Mr Weber's amended particulars of claim. The reference to the evidence of Professor Day is set out in the section of the Tribunal's decision under the heading: 'Have reasonable adjustments been made?' Immediately thereafter, the Member stated:

While the Respondents have the burden of establishing that reasonable adjustments have been made and have yet to present any evidence themselves - the documents presented by the Applicant speak for themselves.[24]

44 The Member also stated '[g]iven the evidence presented by Mr Weber, there is no substance to the claim that reasonable adjustments were not made by the University.'[25]

45 The matters set out above support a finding that the Member's reference to 'the evidence from Professor Day'[26] is not a reference to untested evidence which had been filed by the respondents. Rather, it is plainly a reference to evidence which had been filed by Mr Weber.

46 Section 75 of the VCAT Act did not confer power upon the Tribunal to dismiss the proceeding based on an assessment of the appellant's case by reference to the balance of probabilities. However, the compulsory conference orders, made pursuant to the power conferred by ss 80(1), 83(2)(d) and 98(3), guided the Tribunal to hear and determine the proceeding by entertaining a no case submission without putting the respondents to their election. Mr Weber was not denied procedural fairness in the circumstances in which the Tribunal heard and determined the application to dismiss the proceeding. The appeal must be dismissed.

[1] Weber v Deakin University [2017] VSCA 250.

[2] Weber v Deakin University [2016] VSC 640.

[3] Weber v Deakin University [No 1] [2015] VSC 703; (2015) 50 VR 645.

[6] Weber v Deakin University (Human Rights) [2014] VCAT 1440 ('Tribunal's Reasons').

[7] Ibid [14]-[18] (citations omitted).

[8] Ibid [238]-[241] (citations omitted).

[9] Weber v Deakin University [2017] VSCA 250 [44]-[45].

[10] [2004] VSC 506; (2004) 22 VAR 97, 105 [25].

[11] Tribunal's Reasons [200]. See also below [44].

[13] Ibid [173]-[175], [177]-[178], [180], [215], [218], [224], [226].

[14] See, eg, Ibid [169]-[171], [173]-[174], [176], [180]-[181].

[15] Cf Martin v Fasham Johnson Pty Ltd [2008] VSC 289 [36], [42], [44].

[16] [1985] VicRp 18; [1985] VR 187, 238 ('Protean').

[17] See above [15].

[18] Weber v Deakin University [No 1] [2015] VSC 703; (2015) 50 VR 645, 651 [20].

[19] Weber v Deakin University [2017] VSCA 250 [29].

[20] See above [18].

[21] Tribunal's Reasons [17] (citations omitted). See above [20].

[23] Weber v Deakin University [No 1] [2015] VSC 703; (2015) 50 VR 645, 650 [13].