VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No.H424/2024	
CATCHWORDS	
Application by the respondent for orders striking out or dismissing the claim – claim partially struck out – section 75 Victorian Civil and Administrative Tribunal Act 1998 (Vic).	

First APPLICANT	Sharyn Maxwell 	
RESPONDENT 	Business Licencing Authority	
WHERE HELD	Melbourne	
BEFORE	Senior Member G. Nihill	
HEARING TYPE	Hearing	
DATE OF HEARING	31 January 2025	
DATE OF ORDER AND WRITTEN REASONS	9 April 2025	
CITATION	Maxwell v Business Licencing Authority (Human Rights) [2025] VCAT 308	
OrderS
1	The application is struck out as it relates to the following applicants:
Third applicant			Rita Parry Stewart
Fourth applicant 			Jessica Kershaw-Harris
Fifth applicant			Meena Lindgren
Sixth applicant			Edith Poblacion
Seventh applicant		Nicki Mercuri
Eighth applicant			Thanaporn Chand
Ninth applicant			Emily Bez
Tenth applicant			Emily Ramsay
Eleventh applicant		Monika Mesaros
Twelfth applicant			Erin Kleiner
Thirteenth applicant		Angela Rykers
Fourteenth applicant		Zhibin Wang
Fifteenth applicant		Rachel Juniper
Sixteenth applicant		Shihui Shen
Seventeenth applicant		Peter Siedlecki
Twenty-second applicant	Kathryn Alderhoven
Twenty-third applicant		Renee Hicks
Twenty-fifth applicant		Sureporn Jantapakot
Twenty-sixth applicant		Greta Susannah Hooper
Twenty-seventh applicant	Lee Walker
Twenty-eighth applicant	Kim Maher
2	On or before 30 May 2025, the remaining applicants (listed below) must provide by email to VCAT and to the respondent witness statements setting out the evidence each witness will give at the hearing. These will include witness statements from each of the named applicants setting out the evidence each will give at the hearing in support of their claim that the respondent has treated them unfavourably because of their attribute.
First applicant			Sharyn Maxwell
Second applicant			Nick Costello
Eighteenth applicant		Nao Uemura
Nineteenth applicant		Chanunchida Doungsri
Twentieth applicant		Anna Fe Baitus
Twenty-first applicant		Stephanie Herrod
Twenty-fourth applicant	Ye Zhu
3	Further directions will be made after that date. 
4	The claim by all applicants that the respondent breached the Equal Opportunity Act 2010 (Vic) by requiring brothel managers to continue to pay fees after 30 June 2022 is struck out.
5	The claim by all applicants that the respondent breached the Equal Opportunity Act 2010 (Vic) by failing to provide photo identification cards is struck out. 

G. Nihill
Senior Member			

APPEARANCES:		
For the applicants:  	Mr W Albon, representative	
For the respondent: 	Ms F Batten, of Counsel	

REASONS
Introduction
1	In this application, 28 applicants claim that the respondent, the Business Licencing Authority (BLA) contravened section 44(1)(a) of the Equal Opportunity Act 2010 (Vic) (EO Act) and directly discriminated against them. They claimed that this occurred in three ways. The 28 applicants are brothel managers. They say that the BLA discriminated against them by:
a)	refusing to refund fees in circumstances where similar fees were refunded to brothel licensees, thereby treating them differently from the way in which brothel licensees were treated;
b)	refusing to provide fee relief for further additional fees, that is fees that applied from 1 July 2022 until 1 December 2023; and 
c)	failing to provide photo identification cards.
2	The respondent, the BLA, applied to VCAT for an order striking out or dismissing some of the claims summarily, that is without a full hearing of all the evidence.
3	The background to this application included an earlier application that was heard at VCAT in January 2024. In that proceeding, Hwang v Registrar of the Business Licencing Authority, Vice President Judge English found that the Registrar of the BLA had contravened section 44(1)(a) of the EOA and directly discriminated against the applicant Jae Suk Hwang. Ms Hwang was a brothel manager who sought a partial refund of her brothel manager application fee for the period when the business was closed due to the lockdown periods imposed during the COVID-19 pandemic. Her request for a refund was refused by the BLA. The BLA had given some refunds of brothel licensing fees to brothel licensees but had refused to refund to Ms Hwang the particular fee that related to her as a manager. Judge English found that from a particular date  Ms Hwang’s profession, trade or occupation as a brothel manager was an attribute under section 6 of the EOA, and that the refusal of her request for a refund was unfavourable treatment caused, in part, because of her profession, trade or occupation as a brothel manager. The BLA was ordered to pay to Ms Hwang a refund of $170.33, and $5,000.00 in damages for hurt and humiliation. 
The respondent’s application under section 75 of the VCAT Act
4	The BLA has applied for summary strike out orders under section 75 of the Victorian Civil and Tribunal Act 1998 (Vic) (VCAT Act), which says as follows:
(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.
5	It is a serious matter to dismiss or strike out a proceeding summarily, and VCAT must exercise great caution. A high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding.
6	The power to summarily dismiss or strike out a proceeding, or a part of a proceeding, should be exercised only where it is obvious that the proceeding cannot possibly succeed or where it is obvious that the proceeding is an abuse of process for other reasons. Otherwise, an applicant is entitled to have the case fully heard and determined at a final hearing. It must be very clear that the proceeding is so clearly untenable that it cannot possibly succeed.
7	VCAT should not summarily dismiss an application where the outcome depends on findings of fact based on contested evidence.
8	Deficiencies in an applicant’s particulars of claim are generally not a reason to strike out the claim or the particulars entirely. 
The respondent’s submissions about the application under section 75 of the VCAT Act
9	The respondent said that the claim about the refusal by the BLA to refund fees must fail with respect to most of the applicants, because neither the particulars of claim nor any other document provided by the applicants sets out how or when they requested a refund of their brothel manager fee, or how and when any such request was refused. The applicants’ representative had simply asserted that all of the applicants were in identical circumstances to Ms Hwang and should be considered as being ‘all on the same page’ and all entitled to seek from VCAT an order in the same terms as that made in favour of Ms Hwang. By contrast, said the respondent, Ms Hwang had provided to VCAT evidence that she had applied for a refund and been refused. As I will be referring below to the applicants by numbers, I set out here the names of the individual applicants:
First applicant			Sharyn Maxwell
Second applicant			Nick Costello
Third applicant 			Rita Parry Stewart
Fourth applicant			Jessica Kershaw-Harris
Fifth applicant			Meena Lindgren
Sixth applicant			Edith Poblacion
Seventh applicant		Nicki Mercuri
Eighth applicant			Thanaporn Chand
Ninth applicant			Emily Bez
Tenth applicant			Emily Ramsay
Eleventh applicant		Monika Mesaros
Twelfth applicant			Erin Kleiner
Thirteenth applicant		Angela Rykers
Fourteenth applicant		Zhibin Wang
Fifteenth applicant		Rachel Juniper
Sixteenth applicant		Shihui Shen
Seventeenth applicant		Peter Siedlecki
Eighteenth applicant		Nao Uemura
Nineteenth applicant		Chanunchida Doungsri
Twentieth applicant		Anna Fe Baitus
Twenty-first applicant		Stephanie Herrod
Twenty-second applicant	Kathryn Alderhoven
Twenty-third applicant		Renee Hicks
Twenty-fourth applicant	Ye Zhu
Twenty-fifth applicant		Sureporn Jantapakot
Twenty-sixth applicant		Greta Susannah Hooper
Twenty-seventh applicant	Lee Walker
Twenty-eighth applicant	Kim Maher
10	The respondent submitted that most of the applicants did not articulate how their circumstances could be said to be identical to those of Ms Hwang, in that they provided no information about applying for a refund or being refused a refund. Specifically, the Third to Seventeenth, Twenty-Second to Twenty-Third, and Twenty-Fifth to Twenty-Eighth applicants do not state if or when they applied for a refund. Neither do they state if or when an application for a refund was refused. 
11	Two of the applicants, the Second and Eighteenth, say that they made telephone calls to the BLA to request a refund but do not state when or how the refund request was refused. 
12	The respondents do not seek orders striking out the application against the First, Nineteenth, Twentieth, Twenty-First or Twenty-Fourth applicants in this respect because there are details in the application and other documents provided to VCAT and the respondent about when each of those applicants requested a refund. 
13	The claim by all applicants that is based on the requirement to pay brothel manager fees after 30 June 2022 appears to relate to the operation of the Sex Work (Fees) Regulations 2014 (Vic) (the Regulations), which prescribed licence fees to be paid by licensees until 30 June 2022, but not on or after 1 July 2022, and fees for applications by brothel managers to be paid in reducing amounts until repeal of the Sex Work Act 1994 (Vic) on 1 December 2023. The respondent submitted that the application in this respect is misconceived and lacking in substance because the requirement to pay those fees was prescribed by Parliament. The Regulations prescribed the fees to be paid by licensees and approved brothel managers. The BLA did not discriminate between brothel managers and licenced brothel owners; it merely collected the fees prescribed by Parliament. Under the Regulations, brothel managers were required to pay a fee, whereas licensees were excused from fees from 1 July 2022. It was the regulations that made this distinction, not the BLA. The Sex Work Act 1994 (Vic) was repealed on 1 December 2023 by section 37 of the Sex Work Decriminalisation Act 2022 (Vic). 
14	The respondent submitted that the claim about photo identification cards was bound to fail, as no information or evidence had been provided to support the claim that the BLA had failed to provide the cards. Further, even if there were material facts as to how the BLA is said to have failed to provide photo identification cards, the applicants have not articulated how this might amount to a breach of the EO Act. 
The applicant’s submissions about the application under section 75 of the VCAT Act
15	William Albon, a public officer for the Australian Adult Entertainment Industry, represented all 28 applicants. In response to the respondent’s application, Mr Albon agreed that many of the applicants probably did not make specific requests for a refund. He submitted that this was understandable in the context of the stress and pressures associated with living through the COVID-19 pandemic, particular for people such as the applicants whose livelihood was affected. He said that after the decision was handed down in Hwang v Registrar of the Business Licencing Authority, the onus was on the Registrar of the BLA to have notified all brothel managers and offered a refund. He said that all of the applicants were in an identical situation to that of Ms Hwang, in that they all had the same attribute as her. They were, during the pandemic, waiting in Centrelink queues watching their bosses getting refunds from the BLA while they received nothing. It was, he reiterated, a one size fits all situation, and it should have been ‘beholden on the BLA to walk out [of Ms Hwang’s hearing] and write to all 619 brothel managers to offer a refund’. He said that to suggest that the claim was misconceived was mischievous, and that it should be obvious to everyone that all managers were in exactly the same situation as Ms Hwang and should be entitled to the same recompense. He said that his organisation, the Australian Adult Entertainment Industry, had regularly written to the BLA as early as 5 August 2021 and many times since, seeking a refund on behalf of all brothel managers. This should, he submitted, be accepted as a valid request for a refund by each individual. 
16	With respect to the claim about brothel manager fees paid after 1 July 2022, Mr Albon said he and the applicants were not going to ‘die in a ditch’ over that issue. He said that he was not sure how many of the 28 had been affected by the payment of those fees, and he did not have any detail from his clients about this.
17	As to the failure to provide photo identification cards, Mr Albon said that provision of the cards was dependent on payment of the fee, and the fee was discriminatory. He said that he recalled at least one person telling him they had not received their card. He was not certain to what extent this issue affected the 28 applicants. He acknowledged that the issue with the photo identification cards was more likely one of dereliction of duty or of negligence, and probably not one of discrimination. He said that, on behalf of all applicants, he wished to withdraw that aspect of the claim, though he later retracted the decision to withdraw. 
Considerations and conclusion
18	It is apparent that, to date, only some of the applicants have requested a refund of the fee. Mr Albon did not disagree that this was the case. Five of the applicants have set out some information about when and how they did so. These are:
Sharyn Maxwell
Chanunchida Doungsri 
Anna Fe Baitus
Stephanie Herrod
Ye Zhu
19	Two more of the applicants have said that they telephoned the BLA to request a refund of the fee. One, Nick Costello, says that he made ‘several telephone calls to the BLA’ and has ‘several diary entries to support’ that he contacted the BLA to request a refund. He does not say when or how or why the request was refused. The other, Nao Uemera, says that she made telephone calls to the BLA, but does not specify when or how or why her request was refused. 
20	It is not apparent that any of the others either requested or was refused a refund of the fee. Mr Albon acknowledged that not every applicant had applied for a refund but said that each of them was in identical circumstances to Ms Hwang and should benefit from a VCAT order in the same terms as in that case, that is a refund of the fee and compensation for hurt and humiliation, although the claim for compensation was for $15,000.00 for each person, not $5,000.00. 
21	In the matter of Hwang v Registrar of the Business Licencing Authority, Ms Hwang had applied for a refund, in fact on more than one occasion. The BLA refused the request, and the request and refusal were documented. Judge English found that by refusing the refund, the BLA had treated Ms Hwang unfavourably because of the attribute of her profession, trade or occupation. In the case of most of the applicants in this matter, there is no claim specific to a request or refusal of refund; there is no information available about if or when each applicant requested a refund, nothing about the content of any such request, and nothing about if or when or why the respondent refused it. Mr Albon acknowledged that for most applicants, at this time, this information is not available. The circumstances are therefore by no means identical to those of Ms Hwang. In order to establish a claim of discrimination, as Judge English clarified with respect to Ms Hwang, an applicant must prove:
That she [or he] has an attribute as defined in the Equal Opportunity Act, 
That she [or he] was treated unfavourably by the BLA, and 
That any unfavourable treatment was because of the attribute.
22	Those applicants who have not, or not yet, applied for a refund, and so have not been refused one, will be unable to prove that they have been treated unfavourably; their application is therefore misconceived, lacking in substance and entirely untenable. I do not accept the submission that Mr Albon’s advocacy on behalf of all Victorian brothel managers, determined as it may have been, can form the basis for the 28 applicants to specifically prove the elements set out by Judge English. I strike out the application with respect to the Third to Seventeenth, Twenty-Second to Twenty-Third, and Twenty-Fifth to Twenty-Eighth applicants.
23	The Second and Eighteenth applicants have an opportunity to provide to VCAT and the respondents more detailed evidence as to the detail of their claim, setting out when they made their requests for a refund and what decision was made by the BLA. The remaining applicants will also need to provide this evidence. 
24	In my view, the claim about the fees payable by brothel managers for the period after 1 July 2022 is also misconceived, lacking in substance and entirely untenable. The regulations provide that certain fees were payable by brothel managers after that date and until 1 December 2023, while certain fees were no longer payable by licensees after 1 July 2022. The distinction in the regulations between managers and licensees was not made by the BLA; it was made by Parliament under regulation. I strike out that aspect of the application. 
25	I also strike out the claim about the alleged failure of the BLA to provide photo identification to the applicants. There is no information available in the application or the particulars of claim or any of the material provided by the applicants that can form the basis of a claim that any of the applicants were refused a photo identification card for discriminatory reasons, or indeed any other reason. Mr Albon acknowledged at the hearing that although he did understand that at least one person had not received a photo identification card from the BLA, this was, he said, probably not discriminatory.   
26	For these reasons, I make the orders set out at page 1. I note that by order dated 18 November 2024, VCAT vacated the timetabling orders made on 1 October 2024. Further directions will need to be given; by consent on the papers if the parties agree, or at a directions hearing. 

G. Nihill
Senior Member			

Appendix a – list of applicants
FIRST APPLICANT:	Sharyn Maxwell	
SECOND APPLICANT:	Nick Costello	
THIRD APPLICANT:	Rita Parry Stewart	
FOURTH APPLICANT:	Jessica Kershaw-Harris	
FIFTH APPLICANT:	Meena Lindgren	
SIXTH APPLICANT:	Edith Poblacion	
SEVENTH APPLICANT:	Nicki Mercuri	
EIGHTH APPLICANT:	Thanaporn Chand	
NINTH APPLICANT:	Emily Bez	
TENTH APPLICANT:	Emily Ramsay	
ELEVENTH APPLICANT:	Monika Mesaros	
TWELFTH APPLICANT:	Erin Kleiner	
THIRTEENTH APPLICANT:	Angela Rykers	
FOURTEENTH APPLICANT:	Zhibin Wang	
FIFTEENTH APPLICANT:	Rachel Juniper	
SIXTEENTH APPLICANT:	Shihui Shen	
SEVENTEENTH APPLICANT:	Peter Siedlecki	
EIGHTEENTH APPLICANT:	Nao Uemura	
NINETEENTH APPLICANT:	Chanunchida Doungsri	
TWENTIETH APPLICANT:	Anna Fe Baitus	
TWENTY-FIRST APPLICANT:	Stephanie Herrod	
TWENTY-SECOND APPLICANT:	Kathryn Alderhoven	
TWENTY-THIRD APPLICANT:	Renee Hicks	
TWENTY-FOURTH APPLICANT:	Ye Zhu	
TWENTY-FIFTH APPLICANT:	Sureporn Jantapakot	
TWENTY-SIXTH APPLICANT:	Greta Susannah Hooper	
TWENTY-SEVENTH APPLICANT:	Lee Walker	
TWENTY-EIGHTH APPLICANT:	Kim Maher