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

1. Further directions will be made after that date.
2. 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.
3. 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.

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,[2] 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 [3] 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

1. 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 [4] 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.

1. 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.[5]
2. 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.[6]
3. VCAT should not summarily dismiss an application where the outcome depends on findings of fact based on contested evidence.[7]
4. Deficiencies in an applicant's particulars of claim are generally not a reason to strike out the claim or the particulars entirely.[8]

The respondent's submissions about the application under section 75 of the VCAT Act

1. 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

1. 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.
2. 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.
3. 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.
4. 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).
5. 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

1. 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.
2. 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.
3. 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.

1. 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

1. 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.
2. 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.
3. 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.[9] 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.[10]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

[1] See Appendix A for full list of the 28 applicants to this proceeding.

[2] [2024] VCAT 71.

[3] The EOA was amended on 10 May 2022 to include the attribute of 'profession, trade or occupation'.

[4] Note: dismissing a proceeding brings it to an end without any possibility of reinstatement; striking out a proceeding brings the proceeding to an end with the possibility of reinstatement.

[5] Towie v Victoria [2008] VSC 177 [9].

[6] Lisa Muscatello t/as Apartments Melbourne Domain v Booking.Com (Australia) Pty Ltd (Civil Claims) [2019] VCAT 914 [6].

[7] Campagnolo v Benalla and District Football League Inc [2009] VSC 228; Chan v Kostakis [2003] VCAT 951.

[8] West Homes (Australia) Pty Ltd v Crebar Pty Ltd [2001] VCAT 46 [6], [11]; Barbon v West Homes (Australia) Pty Ltd [2001] VSC 405.

[9] Ms Hwang made several requests for a refund and was refused each time. Judge English found that the relevant requests and response were those made after 10 May 2022, which was the date on which Ms Hwang's profession, trade or occupation became an attribute under the EO Act.

[10] Hwang v Registrar of the Business Licencing Authority [2024] VCAT 71 at [83].