1. ERP is a sole trader who provides personal training services to clients.
2. Viva is a public company that operates a franchise of around 350 fitness facilities across Australia and Mr Konstantinou is a director, employee and the Chief Executive Officer of Viva.
3. On 14 November 2022, ERP and Viva entered into a personal training licence agreement (the 'licence agreement') which granted a non-exclusive licence to ERP to access one of Viva's facilities known as Club Lime South Yarra (the 'club') in exchange for a licence fee, for the purpose of training clients.
4. On 13 September 2024, ERP made a complaint to the Victorian Equal Opportunity and Human Rights Commission (the 'VEOHRC') alleging victimisation against Viva and Ms Grubb, manager of Viva, on 25 September 2024 and ERP made a complaint to the VEOHRC on behalf of ERP's client against Viva, another licensee and Viva's general counsel Mr Bryant. These complaints were subsequently noted by the VEOHRC as withdrawn by ERP on 1 November 2024.
5. On 9 October 2024, ERP sent an email at 8.39am to Mr Konstantinou alleging Viva's corporate governance policies are not being followed, that ERP has had recent challenges with other licensees, which has resulted in challenges from Viva's management staff and general counsel, Mr Bryant which has led to complaints to outside government bodies such as Victoria Police and the VEOHRC. The email provides details regarding ERP's claims of bullying, victimisation and discrimination and the issues ERP submits he was having with Viva's staff.
6. On the same date Mr Konstantinou sent a letter to ERP stating that ERP's licence agreement was terminated by Viva due to breaches of the licence agreement. Mr Bryant emailed Mr Konstantinou's letter to ERP on the same date at 3.50pm noting that ERP's licence agreement has been terminated effective immediately.

1. In his original application form to VCAT for an order under the EO Act, ERP claimed that he made several complaints to Viva of discrimination by one of Viva's licensees (the 'first licensee'), regarding the treatment of one of ERP's clients. ERP also claims that Viva is liable for victimisation against ERP. ERP also made complaints to Viva regarding the conduct of the first licensee and a second licensee (the 'second licensee').
2. ERP claimed that one of his clients had a disability, notably a vision impairment and that the first licensee was discriminating against ERP's client by leaving gym equipment on the floor which was impeding his access to the club because it was causing a tripping hazard.
3. ERP said Viva responded to the complaints against the first and second licensee by inviting ERP to attend a mediation meeting with a representative of Viva and the two licensees who were allegedly bullying ERP. ERP declined to attend the meeting because he said two managers of Viva were nominated as mediators. ERP said the managers could not be impartial because they would receive a payment of a commissions from Viva's licensees. ERP further claimed that the licensees who were responsible for the discrimination and bullying could get away with the discrimination and bullying because they paid a higher commission to Viva than ERP based on the income they received from their clients.
4. ERP said he asked Viva to arrange for a manager who does not receive commissions from Viva or an external mediator to conduct the mediation, but Viva refused his request. He said Viva's general counsel, Mr Bryant contacted him and asked him to provide details of all instances of bullying, but ERP said he refused to do so because he had already reported all instances to Viva's management.
5. ERP said Viva's national personal training manager responded that Viva would fully investigate his complaints but that if ERP does not provide any supporting evidence, they will determine the complaint on the basis of the information provided.
6. ERP said his licence agreement was terminated by Viva on 9 October 2024. He said Viva's general counsel stated that ERP was unable to provide demonstrable examples of bullying and that the complaints centre primarily on another licensee failing to pack the equipment at various times. ERP said Viva falsely accused ERP of acting unprofessionally, discourteously and unfairly and in relation to one allegation gave a false account.
7. ERP said despite asking Mr Bryant to clarify a number of matters regarding the decision to terminate his licence agreement he has never received a reply.
8. ERP said Viva have failed to address his complaints of discrimination by the first licensee for commercial reasons. That the reasons for termination are false and that Viva wanted ERP and his vision impaired client out of Viva's business because ERP gave a detailed scenario to Viva that if his client tripped on equipment his retinas could detach again rendering him completely blind.
9. In his application form ERP claims Viva are breaking the Victorian Equal Opportunity and Human Rights Act 2010 with regards to impeding access, discrimination and victimisation and are also in breach of their own corporate codes of conduct.
10. ERP indicated he has suffered extensive pain and suffering and that due to the termination of the licence agreement he is suffering financial hardship because he is not earning an income and Viva have imposed trade restrictions upon him which will result in financial hardship that could last for years.
11. ERP indicated he is seeking compensation of $260,000 if Viva continues to impose trade restrictions or $190,000 if Viva does not impose trade restrictions. ERP also claims one-year free rent and $30,000 compensation if his licence is reinstated.
12. The hearing of the application for summary dismissal proceeded on 9 December 2024 and each party made submissions at the hearing based on written submissions they had filed prior to the hearing.
13. The following is a summary of each parties' submissions.

JOINT RESPONDENTS' WRITTEN AND ORAL SUBMISSIONS FOR SUMMARY DISMISSAL

1. Mr Bryant submitted that ERP's application for an order under the EO Act should be summarily dismissed under s 75 of the VCAT Act because the application is frivolous, vexatious, misconceived and lacking in substance; and is an abuse of process.
2. Mr Bryant submitted that Viva's understanding of the nature of ERP's claims, can be identified as four separate claims.
3. Mr Bryant submitted that the first claim by ERP is that Viva's have discriminated against ERP in the provision of goods and services on the basis of disability within the meaning of ss 44 and 45 of the EO Act. Mr Bryant submitted that ERP does not have standing to bring an application for discrimination based on disability because ERP does not possess that attribute or he has not claimed to have that attribute and he has not been the recipient of goods and services from Viva.
4. Mr Bryant submitted that the second claim is that Viva have discriminated against a third-party unnamed client of ERP in the provision of goods and services on the basis of ERP's client's disability within the meaning of s 44 of the EO Act.
5. Mr Bryant submitted that the third claim is that Viva discriminated against ERP's client (the same person relating to the second claim) by failing to make reasonable adjustments for a person with a disability in the provision of goods and services within the meaning of s 45 of the EO Act. Mr Bryant submits that ERP does not have standing to bring an application on behalf of an unnamed third party not joined to the proceeding.
6. Mr Bryant submits that the unnamed third party is a known and valued longstanding member of the club. The Tribunal notes that in their submissions both ERP and Viva have named ERP's client. However, to respect the individual's privacy given the nature of the allegations, I have not referred to ERP's client by name but interchangeably as ERP's client or as an unnamed third party.
7. Mr Bryant submitted the only allegations made about ERP's unnamed third-party client are that another third-party licensee had repeatedly left gym equipment on the floor of the gym, creating a tripping hazard for the unnamed third party who is visually impaired, but that ERP makes no other claims of discrimination against the respondents.
8. Mr Bryant submitted that Viva accepts that ERP had raised concerns with Viva regarding one licensee concerning a range of matters which included leaving equipment on the floor of the gym. However, Mr Bryant submitted that Viva welcomed ERP's reports related to trip hazards and took the following steps to address them. First, Viva emailed all licensees directly on several occasions to enforce the club policy regarding returning equipment after use. Second, Viva installed signage at the facility directing members and licensees to rack equipment after use.
9. Mr Bryant submitted that on 22 July 2024, ERP wrote to the national club manager of Viva and advised 'as of Friday 19 July situation with tripping hazards has improved so I do believe this is now in fact being addressed and hopefully things continue like this.'
10. Mr Bryant submitted that between November 2020 and September 2024 ERP's unnamed third-party client attended the club on 402 separate occasions and during this period he did not make a single complaint regarding the accessibility of the facility nor were any incidents reported by ERP's client to Viva.
11. Mr Bryant submitted even if ERP's evidence is accepted at its highest, it does not amount to direct or indirect discrimination within the meaning of ss 7, 8 or 9 of the EO Act. This is because, Mr Bryant submits, ERP has provided no evidence to support an allegation that Viva treated ERP's unknown third-party client unfavourably because of his disability. Further Mr Bryant submitted there is no evidence to support an allegation of indirect discrimination, i.e. that Viva imposed a 'requirement condition or practice' that had, or was likely to have, the effect of disadvantaging ERP's client because of his disability. To the contrary, Mr Bryant submitted that Viva implemented policies and directives to ensure that no such disadvantage occurred.
12. In relation to the third claim, Mr Bryant submitted that Viva could not have contravened s 45 of the EO Act because the unnamed third party with a disability never sought any adjustments to be made to the provision of services. Mr Bryant submitted that it is well established that s 45 is not contravened unless the person with the disability has made a request for reasonable adjustments to the service provider.[1]
13. In relation to the fourth claim, Mr Bryant submitted that Viva could not have victimised ERP within the meaning of s 104 of the EO Act by subjecting him to a detriment by terminating his Licence Agreement. Mr Bryant submitted this is because, first, at the time of the alleged detriment, ERP had not taken any of the steps required by s 104(1)(a)-(f) and (h) of the EO Act which are 'gateway principles', so as to allow for victimisation to occur within the meaning of the EO Act. Second, that if ERP relies on s 104(1)(g) of the EO Act, and ERP's evidence is taken at its highest, the Tribunal may find that ERP did allege a contravention of Part 4 or 6 or 7 of the EO Act prior to the alleged detriment. However, Mr Bryant submitted that if the Tribunal accepts Viva's submissions in relation to the dismissal of ERP's second and third claims, the Tribunal must also find that the allegations of victimisation by ERP were false and not made in good faith.
14. Finally, Mr Bryant submitted that the fourth claim cannot succeed because Viva have never subjected or threatened to subject ERP to any detriment because of any actions listed in s 104(1) or any other provision of the EO Act, rather Viva's decision to terminate ERP's Licence Agreement was based solely on ERP's repeated breaches of the Agreement and associated conduct.
15. Mr Bryant submitted that the Licence Agreement between Viva and ERP made on 14 November 2022 did not create an agency or employment relationship and ERP was at all times an independent licensee. Mr Bryant refers to key terms of the agreement including: (1) that the term of the agreement was from the date of commencement until termination; (2) ERP was granted access rights to the Club; (3) ERP is obliged to be courteous, honest and fair to members, employees, other contractors and the public and attend meetings with a representative of Viva as reasonably required, but not more than once a month; (4) ERP could not make false, misleading or deceptive remarks about Viva, the Club or the licensee's business; (5) either party is able to terminate the agreement for convenience with a period of 4 weeks' notice; (6) Viva can terminate the agreement effective immediately by written notice if the licensee breaches the agreement and doesn't remedy the breach within seven days.
16. Mr Bryant submits that Viva also granted several other non-exclusive personal training licences to other independent third parties for access to the same club, including, relevant to this proceeding the first and second licensees.
17. Mr Bryant provided detailed submissions regarding the events leading to the termination of ERP's licence agreement and the following is a brief summary of the submissions.
18. Mr Bryant submits that on 5 December 2023, a relationship breakdown occurred between ERP and the first and second licensees at the club, who he said are a married couple.
19. Mr Bryant submitted that they do not have a full account of what occurred, ERP and the first and second licensees made serious allegations towards each other which led to Viva having concerns about their conflict and conduct towards each other.
20. Mr Bryant submits that Viva decided to investigate the parties' complaints and requested the parties to attend meetings to discuss the matter and that the first and second licensees co-operated fully and attended the meetings whereas ERP declined to attend or participate in most face-to-face meetings and refused to participate in mediation.
21. Mr Bryant submits ERP sent emails and spoke to staff of Viva indicating that there was going to be a physical altercation in the club and in one email referred to his 'proportionate right to self-defence', requesting confirmation from Viva that he had a legal right to engage physically in that manner.
22. Mr Bryant submits staff became concerned that there may be a physical altercation in the club involving ERP. That as result of their concerns, Viva's state manager wrote to ERP on 26 August 2024 requesting his mandatory attendance at a meeting and that failure to attend may cause ERP to breach the licence agreement.
23. Mr Bryant submits ERP refused to attend which constituted a breach of the licence agreement allowing immediate termination of the agreement. Mr Bryant submits that the first and second licensees attended a mediation meeting.
24. Mr Bryant submits that ERP continued to make serious allegations against the first and second licensees, including accusations of alleged drug use in the club and claiming that the second licensee assaulted ERP by deliberately spilling hot coffee on ERP. Mr Bryant submits that CCTV footage of the incident clearly shows it was not a deliberate incident.
25. In relation to ERP's claims that Viva has discriminated against ERP's unnamed third-party client, Mr Bryant submits that many of these complaints have been made in the context of other complaints regarding the first licensee, which includes claims she has left equipment on the gym floor. Mr Bryant further submits that on most of the dates the complaints are made, ERP's client was not attending the gym.
26. Mr Bryant submits that ERP has also made multiple unjustified and false allegations against Viva's staff. For example, Mr Bryant submits that ERP accused Viva's state manager of being intentionally uncooperative and not acting in good faith regarding ERP's claims that ERP was paying higher licence fees than other licensees. Further, Mr Bryant submits that ERP complained to Mr Konstantinou and accused Mr Bryant, regarding his role as Viva's general counsel, of being deceptive in relation to ERP's complaints about the mediation being conducted by employees of Viva who will receive a commission.
27. Mr Bryant submits that ERP's conduct towards Viva's staff amounted to a breach of his obligations under the licence agreement and Viva's Code of Conduct and contributed to their decision to terminate the agreement.
28. Mr Bryant concluded by repeating his submissions that Viva welcomed ERP's requests to improve access for ERP's client to the club's services and responded immediately to support his safety. Mr Bryant submitted, even taken at its highest, there is no evidence to support the allegations by ERP regarding ERP's client or himself. Mr Bryant submits that ERP's claims are heavily coloured by his hostility towards Viva's staff and the first and second licensees and that his credibility should be questioned given that many of his allegations towards staff are false.
29. Mr Bryant further submitted as an ancillary submission that the relief sought by ERP is totally disproportionate to ERP's rights and entitlements under the licence agreement because: (1) Viva had the right to terminate for convenience with four weeks' notice, irrespective of cause, meaning any period of damages would be constrained to that window; and (2) the claim for $260,000is entirely disproportionate with ERPs earnings and highlights the vexatious nature of ERP's application.

APPLICANT'S WRITTEN SUBMISSION IN RELATION TO SUMMARY DISMISSAL

1. ERP submits in relation to Viva's characterisation of his first claim that Viva has wrongly claimed ERP is claiming discrimination against himself because of his disability. ERP submits that his vision impaired client was discriminated against by Viva under s 44 of the EO Act by having his access impeded in relation to goods and services by continually leaving tripping hazards on the floor.
2. ERP submits he was victimised for making complaints to Viva and for applying to the VEOHRC for a mediation. Further, ERP submits that Viva breached s 45 of the EO Act by not making reasonable adjustments, notably by not compelling other licensees to pick up after themselves.
3. ERP provided a letter from his client and submitted that under s 123(4) it is not necessary for the alleged contravention to relate exclusively to the person making the application.
4. ERP submits Viva breached a clause of the licence agreement by not enforcing cleaning standards and by making ERP feel he was an annoyance when he reported issues.
5. ERP submits that whilst his client did not request adjustments from Viva, that ERP requested adjustments on his behalf multiple times, including regarding cleaning up equipment after use, as well as requesting the replacement costs of lost fob cards and safe access to the club building and lockers.
6. ERP submits that he had taken multiple steps required by s 104(1) to allow for a claim of victimisation. ERP referred to emails sent to Viva complaining of discrimination against his client. ERP provided copies of the emails which are dated 4/7/2024, 9/7/2024, 18/7/2024 and 5/8/2024, 27/8/2024, 31/8/2024, 9/10/2024, 10/10/2024and 12/10/2024, in which ERP claims his client was being discriminated against. ERP submits he also made two separate complaints of discrimination to the VEOHRC on behalf of his client and himself on 13/9/2024 and 25/9/2024, although he says he decided to withdraw the complaints and instead applied to VCAT. However, ERP agreed he did not make a complaint on behalf of his client to VCAT.
7. ERP submits that his licence agreement was terminated due to the email he sent to Mr Konstantinou on 9 October 2024, because the termination occurred after ERP sent the email.
8. ERP submits that whether Viva instructed the first and second licensees to cease their behaviour is not relevant because their behaviour continued and Viva must comply with the law and the terms of the licence agreement.
9. ERP says Viva did not take any steps to respond to his complaints of discrimination against his client until he sent three emails requesting a response. ERP disputes Viva's claim that a sign was installed in the gym and provided photos to the Tribunal which he submits supports his claim.
10. ERP submits he asked Viva to buy different coloured step boxes and squat wedges which would be more visible to his client than the black boxes, but they did not respond.
11. Regarding the email response dated 22 July 2024 from ERP to Viva, ERP submits that whilst there was an improvement for about a week, equipment continued to be left on the gym floor thereafter. ERP submits that he made further complaints about the issue which is demonstrated in the above list of emails that were sent to Viva.
12. ERP submits his client continued to attend the club until ERP's licence agreement was terminated. ERP submits Viva's attendance records dating back to November 2020 is irrelevant, because the first licensee was intentionally leaving equipment on the floor despite Viva sending a letter to all licensees to clean up after use.
13. Regarding Viva's submissions that ERP and the other licensees' relationship broke down on 5 December 2023, ERP submits that he believes he started to have issues with the first licensee after she and her clients were harassing a staff member about the staff member's political beliefs and ERP defended the person.
14. ERP made detailed submissions about issues he was having with the first and second licensees, including claims they made racist comments and that the second licensee made threats towards ERP.
15. ERP submits Viva failed to provide full details and therefore he did not include the full context regarding the email sent to the club manager on 8/2/2023. ERP said the email relevantly stated 'the reason I would like this incident acknowledged in writing is because I have the legal right to proportionate self-defence (not that I want to) and I am currently feeling threatened. I do not want my contract terminated due to someone else's inability to control their temper and I am obviously still feeling the vibe around the club. As you know, I have a baby on the way and this type of behaviour is being much less than ideal for our stress levels.'
16. ERP submits that it was only the second licensee who was being physically threatening, and he was able to get away with it because he and the first licensee bring more revenue to Viva.
17. ERP also made detailed submissions regarding Viva's submissions about his conduct towards Viva staff. For example, he submitted that Mr Bryant lied to the Ombudsman that ERP had declined to attend mediation. ERP submits he did ask that the investigation be conducted by a mediator but that it be a neutral mediator. ERP submits the mediation proposed by Viva was not a mediation because it involved management acting as mediators who would receive a commission and therefore, they could not act fairly or impartially.
18. ERP submits when he declined to attend the meeting, he explained to staff that the relevant terms of the licence agreement did not say that a meeting with other licensees is compulsory. ERP said his claims of drug use should have been referred by Viva for investigation by police and was not.
19. ERP submits general counsel and not ERP has been dishonest, and he can provide proof.
20. ERP repeated his previous submissions that whilst Viva asked the first licensee not to leave equipment out, Viva were unable to get her to comply with the request because she continued to do it. Further, ERP submitted Viva have lied about erecting a sign on the gym in response to his complaints of discrimination.
21. ERP submits that general counsel's insistence that he attend a mediation that was unfair, was bullying and victimisation. ERP repeated his claim that the termination occurred by the CEO, Mr Konstantinou, because the day before the termination ERP had informed the CEO he had made a complaint of discrimination to the VEOHRC.
22. ERP denies that he asked for information about other licensees' fees and that general counsel refused to reasonably respond to his requests for information about ERP's fees.
23. ERP submits the escalation of the matter was ERP informing Viva's CEO Mr Konstantinou that Viva has not followed its own corporate governance policies regarding their Code of Conduct and rather than investigate or delegate an investigation as per the Code, ERPs licence agreement was terminated the next day.
24. ERP submits general counsel has broken the law.
25. In relation to the claim for compensation, ERP repeated his claim for $260,000 if Viva wishes to enforce its trade restrictions. ERP submitted that the claim is calculated based on his lost income caused by the termination of the licence agreement and he also claims $130,000.00 for pain and suffering for the wrongful termination and for experiencing less productivity over the last year due to being afraid to return to work.

JOINT RESPONDENTS' FURTHER SUBMISSIONS IN REPLY TO ERP'S MATERIALS

1. After conclusion of the summary dismissal hearing, I directed ERP to send to VCAT and Viva's email correspondence referred to in his submissions and dated 4 December 4/7/2024, 7/7/2024, 12/7/2024, 18/7/2024, 5/8/2024, 23/8/2024, 27/8/2024 and 31/8/2024. Both parties filed submissions regarding the relevance of the email correspondence and the following is a summary of the Viva's submissions.
2. In relation to the email dated 4 July 2024, Mr Bryant submitted that the email mostly contains allegations of bullying by the first and second licensees which is not relevant to the claim of victimisation. However, Mr Bryant submits paragraph 4 of the email addresses ERP's concerns regarding his client's access to the facility, stating:

I have attached the Victorian equal opportunity act 2010 as I believe (the first licensee) is discriminating against (my client) by impeding access and limiting his capacity due to a personal conflict with myself.

1. Mr Bryant submits ERP clearly alleges that it was the first licensee who had discriminated against ERP's client which does not support a claim against the respondents who are not related to the first licensee or her business. Mr Bryant further submits that the making of the allegation was not a substantial reason for their decision to terminate ERP's licence agreement and therefore does not support an allegation of victimisation.
2. On 8 July 2024, Mr Bryant submits Viva responded to ERP's complaint stating his concerns have been investigated and after careful consideration, concluded no breach of contract has occurred.
3. ERP responded to Viva on 9 July 2024, repeating his claims of bullying and discrimination and asking for a detailed response to his complaints. Mr Bryant submits that this email does not specifically allege that Viva has engaged in discrimination but requests an explanation or reasons for Viva's decision regarding ERP's complaint.
4. In relation to the email dated 12 July 2024, Mr Bryant submits that of seven issues of concern raised in the email, only two allege discrimination and the remaining issues relate to ERP's claims of bullying. Mr Bryant submits the claims of discrimination are against the first licensee leaving equipment on the gym floor and are clearly a secondary issue for what is a personal grievance. Mr Bryant further submits there is no evidence to support the allegations against the first licensee was a substantial reason (or a reason at all) for the termination of ERP's licence agreement.
5. In relation to the email dated 18 July 2024, Mr Bryant submits that ERP questions the claims by Viva that his emails were attacking and combative which Mr Bryant submits was part of Viva's reasons to terminate the licence agreement.
6. In relation to the email of 5 August 2024, Mr Bryant submits that ERP has made unfounded allegations of drug use, bullying and intimidation against the first licensee and asserts that the investigation has wrongly determined that ERP is responsible for bullying. Mr Bryant submits that whilst ERP claims discrimination against his client by the first licensee, it is made in passing and is focused on punishment of the first licensee who is a party unrelated to Viva.
7. In relation to the email of 23 August 2024, Mr Bryant submits ERP is repeating previous allegations that Viva failed to properly investigate ERP's complaints, that he continues to be bullied and that ERP seeks comment on the continued limiting of his vision impaired client's access and why it is not a breach of contract.
8. In relation to the email of 27 August 2024, Mr Bryant submits ERP continues to labour points raised and addressed with Viva in several prior emails.
9. Mr Bryant concludes that ERP has filed a series of emails in which he labours concerns regarding the relationships between himself and the first and second licensees in a manner that ought to be viewed as hostile, unrelenting and unprofessional. Mr Bryant submits that although those emails do allege that the first licensee discriminated against ERP's client by leaving equipment out which had the effect of impeding access, ERP makes no such allegations of Viva. It follows, Mr Bryant submits that ERP has failed to prove a breach of s 104(1)(g) of the EO Act has occurred at the hands of Viva.
10. Mr Bryant submits that ERP has failed to prove any direct discrimination under s 8 of the EO Act, i.e. that Viva have treated, or proposed to treat ERP's client unfavourably because if his disability. To the contrary, Mr Bryant submits the evidence demonstrates Viva took steps to address ERP's concerns on this point, including sending multiple emails to personnel regarding returning gym equipment as well as ensuring adequate signage was present in the facility regarding the return of equipment.
11. Mr Bryant submits ERP has failed to provide any evidence to support a claim of indirect discrimination under s 9 of the EO Act, i.e. that Viva imposed a requirement, condition or practice upon ERP's client that has, or is likely to have the effect of disadvantaging him. Mr Bryant further submits the only requirement imposed on patrons is the ordinary conditions of entry which includes a requirement that equipment be put away after use but that sometimes patrons do not follow directions.
12. Mr Bryant submits ERP has failed to provide any evidence to support a claim that his client had requested reasonable adjustments or that the respondents had declined to meet such a request in breach of s 45 of the EO Act. Mr Bryant repeated previous submissions that s 45 is not contravened unless reasonable adjustments are sought by the impacted person.
13. Mr Bryant submits that if ERP cannot prove that his allegations of direct or indirect discrimination are true and made in good faith, his claim of victimisation under s 104(1)(g) cannot succeed and the claim should be summarily dismissed.
14. Mr Bryant further submits that even if ERP can prove that discrimination has occurred, he must demonstrate that the making of the allegations was a substantial reason for Viva's decision to terminate his licence agreement. Mr Bryant submits that their reasons for termination of the licence agreement were valid and not discriminatory and, even at its highest, ERP's evidence fails to substantiate the test for victimisation under any part of s 104 of the EO Act.
15. Mr Bryant further submits the Tribunal ought to find that ERP's allegations were not made in good faith and he is a vexatious litigant. Mr Bryant submits ERP has adopted a 'scatter gun' approach to pursuing his unfounded grievances having made complaints or applications or threatened to do so to multiple agencies, including the Australian Small Business and Family Enterprise Ombudsman, Victorian Small Business Commission, ACCC, the NSW Law Society, the VEOHRC and VCAT.

ERP'S REPLY TO VIVA'S SUBMISSIONS REGARDING ERP'S MATERIALS

1. In relation to the email dated 4 July 2025, ERP submits that Viva are a related party to Viva's licensees because personal trainer licensees are representatives of Viva who are required to wear a uniform and are defined as employees who must comply with Viva's governing Code of Conduct.
2. Referring to the sections of the Code of Conduct and other documents, ERP submits that personal trainers are identified by Viva as representing Viva's business to any member of the club.
3. ERP further submits that Viva is vicariously liable under s 109 of the EO Act for the actions of licensees including the first licensee. This is because Viva failed to enforce the licence agreement, the Code of Conduct and the OH&S policies regarding safety and discrimination law which ERP submits he made clear to Viva multiple times regarding leaving gym equipment on the floor.
4. ERP provided copies to VCAT of the Code of Conduct, OH&S policy and the licence agreement and referred to various clauses of the policies and agreement in support of his submission that Viva failed to follow them by not acting on ERP's complaints that his client's access was being impeded due to the first licensee deliberately leaving gym equipment on the gym floor.
5. ERP further submits that Viva have breached s 105 of the EO Act by authorising or assisting discrimination by allowing the first licensee to continue to discriminate against ERP's client.
6. In relation to the email dated 9 July 2024, ERP submits he clearly claimed that equal opportunity law had been breached but that Viva did not respond to his complaint or acknowledge his concerns only that the claims of bullying would be investigated.
7. In relation to the email of 12 July 2024, ERP submitted his focus was on the first licensee's conduct because she was leaving equipment out on the gym floor deliberately. ERP submitted the first licensee knew it caused ERP to worry about his client's safety and that the email was sent by Viva's management to licensees due to ERP's complaints to Viva on behalf of his client.
8. ERP submits it was rare that other people left equipment on the gym floor, only the first licensee was doing so. ERP said there is CCTV evidence he has requested from Viva that will clearly show that the first licensee was leaving out tripping hazards, not anyone else. ERP claims that Viva's club manager admitted that the gym was messy when ERP's client told him it wasn't safe. However, ERP claims that the manager offered to show ERP's client how it was clean now, but this was after ERP's licence agreement was terminated.
9. ERP submits his same-day termination was as a direct result of emailing the CEO, Mr Konstantinou, informing him of the complaint made to the VEOHRC.
10. ERP denies Viva's claim that the termination was based solely on ERP's repeated breaches of the licence agreement and ERP's unwillingness to remedy the breaches and his conduct generally. ERP submits there was no breach of contract issued prior to the termination or any request to remedy the breaches nor any warnings or any criticisms of ERP's emails.
11. In relation to the email dated 18 July 2024, ERP disputes that his emails were combative or attacking. ERP submits that he was simply asking legitimate questions about issues and seeking resolutions, which had previously been ignored. ERP repeats his earlier submissions that the respondents failed to follow their own Code of Conduct and investigate his concerns about safety and discrimination and that when he followed the Code and informed Viva's CEO his licence agreement was terminated. ERP submits that the reason for the termination was manufactured.
12. In relation to the email dated 5 August 2024, ERP submits that his complaints about drug use were true but were ignored in breach of the Code of Conduct and Viva's Whistleblower policy and the complaint was not referred to Victoria Police for investigation.
13. ERP submits his claims about bullying and intimidation are well documented, but Viva's management refused to make notes about the claims after a meeting stating they are not responsible for the actions of either the first or second licensee. ERP submits that this was a breach of the Code of Conduct, OH&S policy and that Viva is vicariously liable under 109 of the EO Act.
14. ERP submits that whilst his emails may focus on his complaints about the first licensee, or that the claim of discrimination was made in passing, this is not relevant to Viva's duty to obey equal opportunity law and cannot be used as an excuse for not taking any action.
15. ERP submits that the email dated 23 August 2024 asks that prior unaddressed concerns be addressed by Viva. ERP further submits that the email raises new incidents which therefore cannot have been addressed by Viva, and Viva is attempting to deceive the Tribunal. ERP repeats previous submissions that his complaints of discrimination were never investigated by Viva.
16. In relation to the two emails dated 27 August 2024, ERP repeated previous submissions that he had valid reasons for not attending the mediation meeting proposed by Viva and, that his failure to attend did not constitute a breach of any terms of the licence agreement because there was no contractual requirement for him to do so.
17. ERP submits he made complaints on behalf of his client against Viva. For example, ERP referred to a section of the email: 'Why do you continually ignore my complaints of the discrimination of my client? Do I need to tell (my client) I have not been able to help and that he needs to make a complaint himself?'
18. ERP repeats previous submissions that the licensees are related parties of Viva.
19. In relation to the email dated 31 August 2024, ERP submits that Viva did not comment on this email. ERP submits that the email clearly outlines that his client was being discriminated against by the first licensee impeding his access and was in reply to Viva's national manager's first acknowledgment of his complaints of discrimination. ERP submits the national manager responded as follows:

Complaints about equipment being left out are relevant and should be taken directly to your club manager however it is hard to link this directly to any direct or indirect discrimination against your client.

1. ERP said Viva has not mentioned viewing of CCTV footage or investigating the complaint which he submits clearly shows the first licensee leaving tripping hazards, which is a failure to follow the Code of Conduct.
2. In response to Viva's concluding submissions, ERP submits that he voiced his concerns about discrimination of his client several times to Viva and not once did they investigate or follow their own Code of Conduct.
3. ERP concludes that Viva is vicariously responsible under s 109 of the EO Act for the conduct of the first and second licensees under equal opportunity law and their own Code of Conduct. ERP submits he requested an email be sent by managers to licensees to be mindful of vision impaired members, but the first licensee continued to ignore this advice due to her personal grievance with ERP. ERP submits the first licensee directly discriminated against ERP's client because he is vision impaired and knew her conduct produced worry and anxiety for him and ERP. Despite raising these issues with Viva, ERP submits they chose not to enforce their own Code of Conduct and the licence agreement. ERP submitted this is because the first licensee is popular; and because the licensees are employees paying higher licence fees and are conservatively responsible for ten percent of daily visitors attending the club from which management receive commissions.
4. ERP submits if Viva wish him to join the first licensee to the claim he would except that the first licensee has not victimised ERP by terminating ERP's licence agreement which has resulted in emotional and financial hardship.
5. ERP repeats earlier submissions that the termination was clearly manufactured after he sent his email to the CEO.
6. ERP questions Viva's claims that they welcomed his reports of tripping hazards, submitting Viva neither investigated the claims nor ensured the first licensee complied with safety procedures.
7. ERP further submits Viva has lied about installing signage in response to ERP's reports because the signage was already in existence before the complaint was made.
8. ERP submits Viva's failure to ensure the first licensee's compliance with safety procedures, which she flouted because of her personal grievance with ERP, meant that his client's use of the Club remained unsafe and therefore limited.
9. ERP submits it is a condition of entry and included in the licence agreement and signage that all club attendees put their weights away and failure to do so, due to a personal grievance with ERP, is not an 'ordinary condition of entry'.
10. ERP refutes Viva's submissions that the conditions of entry were reasonable and that members generally put the equipment away. ERP submits that despite multiple complaints to management about the first licensees' behaviour no adjustments were made, and ERP's client consequently cancelled his membership. ERP submits that Viva's claims that the gym was now clean and safe were not due to any action taken by them, but because of the first licensee ceasing her poor behaviour because ERP's licence agreement was terminated.
11. ERP submits on behalf of his client he had requested several times that tripping hazards not be left out, but further adjustments were not made. ERP referred to clauses of the licence agreement and submitted that the agreement requires, among other things, that licensees operate to high OH&S standards.
12. ERP reiterates his conclusion that his termination was because of his email to the CEO informing him of the complaint made to the VEOHRC.
13. ERP submits Viva has a positive duty to eliminate discrimination and its refusal to investigate his complaints of discrimination was a breach of that duty.
14. ERP submits Viva cannot claim his claims are not made in good faith if his complaints of discrimination were not investigated.
15. ERP submits he has continued to be victimised after the termination of his licence agreement because Viva has not refunded his bond and continued to claim his wife's membership fee after she cancelled the membership.
16. ERP submits his complaints to other agencies was not a scatter gun action, that they were each due to legitimate issues raised, including, for example, his queries about whether he had overpaid his licence fees and his attempt to arrange mediation through a neutral mediator.

ASSESSMENT OF THE APPLICATION FOR SUMMARY DISMISSAL UNDER S 75 OF THE VCAT ACT

1. Section 75(1)(a) of the VCAT Act states that, at any time, the Tribunal may make an order summarily dismissing or striking out all, or any part of a preceding that, in its opinion is frivolous, vexatious, misconceived or lacking in substance.
2. The principles that guide the Tribunal when considering an application for summary dismissal are well established. The tribunal should exercise caution before summarily dismissing a proceeding because such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. This is of particular importance where the applicant is self-represented.
3. The Tribunal should only make an order summarily dismissing or striking out a proceeding when satisfied that, because of one of the grounds in s75, the case is obviously hopeless, unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This includes, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[2]
4. The Tribunal's role in determining an application under s 75 is not to examine the evidence relied upon by the applicant but to proceed on the basis that the applicant will be able to prove all the allegations made in the claim. In an application under s75, it is appropriate to assume the applicant will be able to prove each fact alleged in the claim.[3]
5. It is also established that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence.[4] In considering an application under s 75, the Tribunal must take the applicant's case at its highest.
6. As noted above, in the submissions and during the hearing, concerns were raised by Viva about whether the claims made by ERP, even taken at their highest, could be considered prohibited discrimination, or victimisation as proscribed by the EO Act.
7. In relation to the claim that ERP had been discriminated against by Viva on the basis of disability, I note that the meaning of discrimination is defined in s 7 of the EO Act, which states:

7 Meaning of discrimination > > (1) Discrimination means-

(a) Direct or indirect discrimination on the basis of an attribute; or

(b) A contravention of section 17.19, 20, 22,32, 33, 40, 45, 54, 55 or 56.

1. Section 8 of the EO Act states direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
2. Section 9 of the EO Act states indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has or is likely to have the effect of disadvantaging persons with that attribute and that is not reasonable.
3. Section 6 of the EO Act sets out the attributes on the basis of which discrimination is prohibited. That list includes the attribute of disability.
4. Section 44 of the EO Act states that a person must not discriminate against another person (a) by refusing to provide goods or services to the other person; or (b) in the terms on which goods or services are provided to the other person; or (c) by subjecting the other person to any other detriment in connection with the provision of goods or service to him or her.

Section 45 - Service provider must make reasonable adjustments for person with a disability

(1) This section applies:

(a) if a person with a disability requires adjustments to be made to the provision of a service by another person (the service provider) in order to participate in or access the service or derive any substantial benefit from the service;

(b) whether or not the services are provided for payment.

(2) The service provider must make reasonable adjustments unless the person could not participate in or access the service or derive any substantial benefit from the service even after the adjustments are made.

1. The first claim is characterised as a claim by ERP that Viva discriminated against ERP in the provision of goods and services on the basis of disability within the meaning of ss 44 and 45 of the EO Act.
2. I find that ERP has not provided any evidence to indicate he has a disability or that Viva were aware or thought he had that attribute and treated him unfairly on that basis or that they failed to provide any reasonable adjustments to ERP because of a disability. In fact, whilst in some respects, ERP's submissions on this point are not clear, ERP does state that Viva has wrongly assumed he is claiming he was discriminated against, and that in fact he is not, rather he is claiming that his client was discriminated against by Viva. However, it was not completely clear whether ERP had formally withdrawn any claim of discrimination against the respondents and therefore I have determined the first claim as follows.
3. On the basis of the evidence before me, and for the reasons above, I find that if ERP is making a claim of discrimination by Viva against himself, on the basis of disability, that claim is misconceived and I therefore strike out the claim.

1. The second claim by ERP is that Viva have discriminated against ERP's unnamed third-party client in the provisions of goods and services on the basis of the client's disability within the meaning of s 44 of the EO Act. The third claim is that Viva also discriminated against ERP's client (the same person relating to the second claim) by failing to make reasonable adjustments for a person with a disability in the provision of goods and services within the meaning of s 45 of the EO Act.
2. Viva submit that ERP does not have standing to bring an application on behalf of an unnamed third party not joined to the proceeding.
3. ERP submits that under s 123(4) it is not necessary for the alleged contravention to relate exclusively to the person making the application.
4. Section 122 of the EO Act states that a person may make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7, whether or not the person has brought a dispute to the Commission for dispute resolution. However, s 123 of the EO Act relevantly states:

(1) The following persons may make an application to the Tribunal under section 122-

(a) A person who claims that another person has contravened a provision of Part 4,6 or 7 in relation to that person;

(b) If that person is unable to make an application because of disability-

(i) a person authorised by that person to act on his or her behalf; or

(ii) if that person is unable to authorise another person, any other person on his or her behalf.

(2) A person may make an application on behalf of the person and another person or persons if the Tribunal is satisfied that-

(a) Each person-

(i) is entitled to make an application under subsection (1)(a); and

(ii) has consented to the application being made on the person's behalf; and

(iii) the alleged contravention arises out of the same conduct.

(3) An authorisation under subsection (1)(b)(i) may be given-

(a) In writing; or

(b) In any other manner approved by the Tribunal.

(4) It is not necessary for the alleged contravention to relate exclusively to the person making the application.

1. On the evidence before me I find that it is clear that ERP has not made an application to the Tribunal on behalf of his client. The application to VCAT is made by ERP only. There is no indication that ERP's client authorised ERP to act on his behalf or consented to the application being made on his behalf. Nor is there any evidence that ERP's client provided any written or other authorisation to make an application, other than a statement from ERP's client to support ERP's application.
2. Further, I note that the outcomes or relief sought by ERP are claims of compensation for ERP and not for his client. This further supports a finding that the application is made by ERP and not on behalf of his client, otherwise it would be expected that ERP would also be seeking a remedy or remedies for his client.
3. On the basis of the above findings of fact, I find that the second and third claims of discrimination are misconceived because they cannot be made by ERP because he is not the person alleged to have been the victim of discrimination nor is ERP a person who has requested reasonable adjustments due to ERP having a disability. ERP has not made an application in accordance with s 123 of the EO Act. Accordingly, due to the above findings, it is not necessary for me to consider whether Viva could be held vicariously liable for the alleged discriminatory actions of the first or second licensee.

1. In relation to the claims that ERP has been victimised by Viva, I note that s 104 of the EO Act states

What is victimisation? > > (1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(a) has brought a dispute to the Commission for dispute resolution; or

(b) has made a complaint against any person under the old Act; or

(c) has brought any other proceedings under this Act or the old Act against any person; or

(d) has given evidence or information, or produced a document, in connection with -

(i) any proceedings under this Act or the old Act; or

(ii) any investigation conducted by the Commission; or

(e) has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or

(h) has refused to do anything that -

(i) would contravene a provision of Part 4 or 6 or this Part; or

(ii) would have contravened a provision of Part 3, 5 or 6 of the old Act -

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

1. I find that ERP did take some of the actions set out in s 104 of the EO Act, notably ERP brought a dispute to the VEOHRC for dispute resolution, initially on behalf of his client, against both Viva, Mr Konstantinou, the first licensee and Mr Bryant. However, ERP subsequently withdrew the application to the VEOHRC on 1 November 2024 because he was advised there were delays in processing complaints for mediation and therefore, he decided to make application to VCAT instead.
2. I also find that prior to making the application to VCAT, ERP did make multiple allegations contained in many of the emails referred to above that, not only the first licensee, but that Viva had contravened the EO Act. The relevant allegations are primarily that gym equipment was being left on the floor by the first licensee causing a tripping hazard for ERP's client who has a vision impairment and that Viva failed to address the issue.
3. Further, I find that ERP is alleging that he was victimised by Viva because Viva subjected him to a detriment by terminating his licence agreement because ERP and or a person associated with ERP, notably his client, alleged that Viva (and the first licensee) have contravened a provision of Part 4 of the EO Act.
4. Viva submit that the reason for terminating the agreement were due to ERP's conduct and not because ERP had made a complaint or allegations of discrimination. Further, that even if the Tribunal determined that the termination occurred because of ERP's complaints of discrimination, it was not a substantial reason for the termination. Further, Viva submit that the allegations are false and were not made in good faith and therefore the claim of victimisation must fail.
5. I find that the reasons for the termination of the licence agreement depend on findings of fact based on contested evidence. As it is not the Tribunal's role in determining an application under s 75 to examine the evidence relied upon by ERP, but to proceed on the basis that ERP will be able to prove all the allegations made in the claim, I must assume that ERP will be able to prove each fact alleged in his claim and take his case at its highest. Similarly, it is not the Tribunal's role in an application under s 75 to examine the evidence relied on and to consider whether the application is made in good faith or the allegations are false.
6. I do not agree with Viva's submission that if I find that ERP's claims of discrimination should be dismissed then I must dismiss the claim of victimisation. It is possible to prove a claim of victimisation even where the underlying claim of discrimination is not successful.[5]

1. For the reasons given I consider that parts of the application should be struck out.
2. The claim of victimisation against Viva should proceed.
3. The remainder of the claims are struck out as I am satisfied that Viva have discharged the onus to prove that the claims are lacking in substance and doomed to fail. The first claim is lacking in substance because ERP has not provided any evidence to support a claim of discrimination against himself, which he appears to have conceded in part of his submissions. The second and third claims are also lacking in substance because ERP has not made a claim on behalf of his third-party client in accordance with s 123 of the EO Act and is seeking compensatory remedies for himself not his third-party client.
4. The matter is referred to the principal registrar to be listed for a further directions hearing.

[1] VNE v Stockland Coproration Limited (Human Rights) [2022] 497 [45]-[46].

[2] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[3] Owners Corporation No. 1PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1638, referring to Noonan v Owners Corporation No. 2PS409115E [2011] VCAT 1934 [17].

[4] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 [41].

[5] Kistler v RE Laing Training & Robert Laing (2000) EOC 93-064.