1. Mr Whittingham's application listed a claim for victimisation.
2. Discussion about this occurred at the hearing and the outcome of discussion about this ground was that Mr Whittingham withdrew this part of his application. I therefore note this now and have made the appropriate order marking the claim for victimisation withdrawn.

The law - section 75 - Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act)

1. Section 75 states:
   1. Summary dismissal of unjustified proceedings

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

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

(b) is otherwise an abuse of process.

1. The Respondents' submission refers to numerous cases setting out the general principles that apply to these applications.
2. The law in this area is well settled. As recently stated by Justice Garde, VCAT President, in the decision of Owners Corporation No. 1 PS537642N v Hickory Group Pty Lt__d:[1]
   • [8] In Forrester v AIMS Corporation [2004] VSC 506. Kaye J considered the principles applicable to s 75(1) applications. Ibid at paras 17 to 28 (citations omitted). Before a proceeding can be summarily dismissed:

(a) it must be 'very clear indeed' that the action is 'absolutely hopeless'; or

(b) the action must be 'so clearly untenable that it cannot possibly succeed'.

(c) the strike out power 'may not be invoked where all that is shown is that, on the material currently put before the Tribunal, the complainant may fail to adduce evidence substantiating an essential element of the complaint'; and

(d) the respondent to a complaint has the onus of showing 'that the complaint is undoubtedly hopeless'.

[9] In Ausecon Developments Pty Ltd v Kamil [2015] VCAT 1474. Judge Davis noted that for a strike out application to be successful, the proceeding must:

... be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail. A claim would be regarded as frivolous or vexatious or misconceived if it is obviously groundless, made by a person without standing, or in respect of a matter which lies outside the VCAT's jurisdiction. A claim may be regarded as lacking in substance if an applicant cannot possibly succeed in establishing its claim, or the respondent has a complete defence. The power to strike out should be exercised with great caution.

[10] In Fancourt v Mercantile Credits Pty Ltd ('Fancourt').[1983] HCA 25; [1983] HCA 25; (1983) 154 CLR 87 the High Court held that:

the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Ibid at 99

1. Section 8 of the EO Act defines direct discrimination.[2]
2. The elements that must be proven are that Mr Whittingham:
   • has an attribute; and
   • was treated unfavourably by the Respondents; and
   • that any unfavourable treatment was because of the attribute.
3. He does not have to prove that his attributes are the sole reason for any unfavourable treatment, it is enough to show that it was a substantial reason. Motive is also irrelevant.[3]
4. To prove discrimination, i.e. that the elements set out in s 8 are met, does not however mean that there is a necessarily a breach of the EO Act as this law does not apply to all acts of discrimination.
5. Discrimination, in terms of a breach of the EO Act, will only occur if it relates to specific areas of public life. The EO Act spells this out by referring to nine different areas. (Mr Whittingham in his application ticked the boxes under the heading 'In which area did area did discrimination occur?' - provision of goods and services and accommodation.)
6. The prohibition on discrimination is set out under each of these areas. For example - s 44 prohibits discrimination in the provision of services as follows:

Discrimination in the provision of goods and services

(1) 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 services to him or her.

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

1. In his application Mr Whittingham has ticked boxes indicating that the alleged sexual harassment occurred 'by members of a qualifying body' and 'in the provision of accommodation'.
2. He has also alleged that the Respondents have authorised and assisted discrimination.
3. Claims for sexual harassment and authorising or assisting discrimination each have their own criteria - see ss 92 and 105 of the EO Act.
4. If a claim for discrimination can be proved, I must consider whether s 75 of the EO Act applies which permits this discrimination where it is necessary to comply with or is authorised by a provision of another Act.

1. The Respondents' submission is that there was no discrimination, and in the alternative that even if there was, it was not in an 'area' covered by the EO Act. And given the Respondents' statutory obligations in the context of s.75 of the EO Act, any discrimination was permitted.
2. Ms Kwas outlined the history of this matter. She said that Mr Whittingham has purchased various goods and property over a period of time using his wife's maiden name.
3. As a result of investigations he was charged with numerous counts of obtaining financial advantage by deception. He is currently on remand pending trial in relation to this matter which is set down for July 2017.
4. The Respondents' written submission sets out in detail, by reference to legislation and case law, why it believed Mr Whittingham's claim should be summarily dismissed. Minimal further oral submission was provided at the hearing.
5. I do not propose to restate the written submissions, but rather summarise the Respondents' position. In its view, the matter should be dismissed because:
   • the Respondents have not provided a service;
   • there is no provision of accommodation;
   • if there is any discrimination this is authorised by statutory authority, as allowed by section 75 of the EO Act;
   • there is no sexual harassment or authorising or assisting discrimination; and/or
   • the application is an abuse of process.

1. Mr Whittingham asserted that the application under s 75 should not succeed for a number of reasons, being that:
   • it would result in a breach of natural justice in particular a breach of ss 97 and s 98(a), 98(b) and 98(d) of the VCAT Act.
   • it would breach s. 24 of the Charter Of Human Rights and Responsibilities Act 2006 (the Charter) taking into account ss 75(5) and 78(1)(e) of the VCAT Act.
   • section 137(b) of the VCAT Act applies.
2. He did not expand on these assertions.
3. He stated that there were two protected attributes relevant to this case. While he had checked the boxes - 'sexual orientation' and 'gender identity' on the application form, he said that his claim was based on 'sex' and 'marital status'.
4. The basis of his claim was that it is commonly accepted that when two persons marry, either one may take the name of the other without a formal name change. However Mr Yeo, who it was submitted was educated and a police officer of some considerable experience, asserted that this was not the case, and that only a woman could take the name of her husband without a formal name change, not a man. He asserted that this occurred during an interview on 10 March 2016. He suggested that the comments of Mr Yeo were, in effect, indicating that a man does not have the same rights as a woman.
5. Mr Whittingham said that an assertion of this type is discrimination. He referred to a form from Births, Deaths and Marriages which he said supported what he was claiming. He said that Mr Yeo and Mr Beddegenoodts engaged in discrimination by investigating and charging him based on this incorrect assertion.
6. He stated that he has suffered detriment for a number of reasons, including: the purchase of property which could not proceed, the freezing of his bank accounts, limitation of his ability to access legal assistance and a number of other ways as set out in his application.
7. He said the submission that the Respondents made in relation to services and accommodation was irrelevant, as his reference to goods and services in his application was a reference to the detriment he had suffered as a result of the alleged discrimination, i.e. the financial losses associated with the cancellation of his property purchase and the interference with his goods, being the cars he was in the process of purchasing etc. The reference to accommodation was in respect of the lost accommodation that resulted as a consequence of the cancelled property purchase.
8. He claimed that the investigating officers had told a large number of people that he had used a false name. This included various people from VicRoads, Westpac bank and others relevant to the investigation. The Respondents had therefore breached section 105 of the EO Act by contacting other people and authorising and assisting discrimination.
9. He said further that he has been unable to obtain legal representation as a result of this discrimination and that there has been interference with his goods, for example the car he was in the process of purchasing and also his attempt to purchase property. He said that he has lost goods and services and accommodation because of Mr Yeo's action. The financial impact on him was in the vicinity of $300,000.
10. In relation to the claim for sexual harassment Mr Whittingham said he was relying on section 92 (b) - no further submissions were made on this point.

The Respondents' response to Mr Whittingham's submissions

1. Ms Kwas responded to Mr Whittingham's submissions.
2. She stated that her submission was based on an assumption that Mr Whittingham was relying on goods and services, and accommodation as the areas in which it was alleged the discrimination took place. She noted that Mr Whittingham had stated at the hearing that this was not the case rather that the reference to accommodation, goods and services related to the alleged detriment suffered by him.
3. She stated that there was therefore no area in which the alleged discriminatory conduct had occurred and therefore there could not be a breach of EO Act.
4. In reference to the Respondents contacting persons, she said this is clearly within the confines and conduct of an appropriate investigation.
5. She submitted that section 24 of the Charter is not inconsistent with a summary dismissal application, as the application is based on an assessment of the applicant's case taken at its highest. All parties have been given ample opportunity to provide the factual and legal basis to support their respective cases. An application of this type usually proceeds without calling witnesses. However, this process does not prejudice Mr Whittingham in any way. The criminal matters will proceed and deal with all the relevant the issues. Full procedural fairness is therefore being provided.

1. Mr Whittingham submitted that Respondents' application should be dismissed, as otherwise there would be a breach of natural justice.
2. He referred to s 97 and ss 98(a), 98(b) and 98(d) of the VCAT Act.
3. These sections state as follows:

Victorian Civil and Administrative Tribunal Act 1998 - Sect 97

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

Victorian Civil and Administrative Tribunal Act 1998 - Sect 98

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

1. The relevant subsections of section 98 cover the general procedure of the Tribunal including the obligation to comply with the rules of natural justice.
2. The numerous cases that have analysed section 75 are consistent in the general statement that an application can only be dismissed if the proceeding is so obviously hopeless or unsustainable that on no reasonable view could it succeed. It is clear that when determining this applications, Mr Whittingham's case must be considered at its highest i.e. that what has been asserted can be proven.
3. The obligation to provide natural justice is referred to in the text Annotated VCAT Act, 5th Edition, 2015, J Pizer QC and E Nekvapil, where the authors refers to a situation where a party was not heard on the merits because the proceeding was dismissed or struck out.
4. At page 478, the authors state:

In this situation it may be said that whilst s. 98(1)(a) imposes a requirement that, ordinarily, a party should be given an opportunity to be heard upon the merits, that opportunity is not absolute and may be lost without a breach of the rules of natural justice: see Bell Corp Victoria Pty Ltd v Stephenson (2003)20 VAR 280; [2003 VSC 255 at [51]. Nevertheless, before an order is made under s.75,76 or 78, reasonable notice must be given to the applicant that such an order may be made and of the grounds for the foreshadowed order: Martin v Fasham Johnson Pty Ltd [2008] VSC 289 at [34]

1. Mr Whittingham was advised of the Respondents' application and submission approximately two weeks before the hearing. The submission clearly sets out the issues to be canvassed at the hearing and the Respondents' views in relation to these issues. Mr Whittingham also made a range of legal submissions in relation to this application. There was no application for an adjournment. I am therefore satisfied that he had reasonable notice of the s 75 application and the relevant issues.
2. I am not satisfied that there has not been a breach of s 97 or ss 98(a), 98(b) and 98(d) of the VCAT Act.
3. Mr Whittingham also submitted that the Respondents' application should not succeed because to do so would be a breach s 24 of the Charter, which states as follows:

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

1. The right to a fair hearing referred to in this section has already been discussed in terms of the obligation under the VCAT Act. It is well established that s 24 effectively restates this obligation, as per Ross J:

In relation to the fairness of the civil proceeding I am not persuaded that s 24(1) of the Charter adds anything, given that the VCAT Act already requires that the Tribunal act fairly and that it is bound by the rules of natural justice.[4]

1. As outlined above, in my view the process adopted by the Tribunal in this application does afford all parties a fair hearing. I am not satisfied that s 24 is engaged.
2. Mr Whittingham also submitted that granting the Respondents' application would breach s.24 of the Charter taking into account ss 75(5) and 78(1)(e) of the VCAT Act.
3. I have already dealt with the submission of the Charter and do not see that the subsections Mr Whittingham referred to take the matter any further.
4. Mr Whittingham said that s 137(b) of the VCAT Act applies. He did not expand on this and I do not see that this subsection impacts the summary dismissal application.

1. At the hearing Mr Whittingham clarified that he is relying on the protected attributes of 'sex' and 'Marital Status'.
2. The Respondents did not dispute that Mr Whittingham was married and that he had the attributes of "sex" and "Marital Status".
3. They did however dispute that any alleged discrimination occurred because of those attributes.

1. Part 4 of the EO Act sets out the areas of public life where discrimination is prohibited. If discrimination occurs outside of these areas, there is no breach of the EO Act.
2. The Respondents' submission was based on Mr Whittingham's application where he alleged the discrimination occurred in the areas of accommodation and the provision of goods and services. At the hearing he said that this was not the case and he did not offer any area within Part 4 of the EO Act as an alternative. In this case his claim must fail.
3. However, for the sake of completeness, and just in case Mr Whittingham was confused, I will address the question of whether the alleged discrimination could have occurred in the areas indicated on his claim form.

1. The Respondents' submission noted a range of authorities setting out various principles in relation to establishing when a government activity may be a 'service'. These included that the service must confer a benefit or advantage on the complainant, and that a statutory duty involving whether or not to prosecute is not a service.
2. The submission noted various duties as set out in the Victoria Police Act 2013 (Vic), which included protecting life and property, preventing the commission of offences and detecting and apprehending offenders.
3. The Respondents' conduct has been previously set out at para. 32 of these reasons. It was submitted that the conduct of the police is actions taken to uphold the law, and they are not services provided to an alleged perpetrator of the crime.
4. As concluded by Member Dea in the case of Djime v. Kearnes '...if charges were laid and prosecuted, police could not be said to be providing services to the alleged offenders.'[5]
5. I agree with these submissions and am satisfied that the conduct of the Respondents in investigating and prosecuting Mr Whittingham does not constitute a service for the purposes of the EO Act.

1. It was unclear from the application form what particular accommodation Mr Whittingham was referring to. The Respondents' submission appears to be based on an implied reference to the fact that Mr Whittingham had been held in the Melbourne Custody Centre, the Melbourne Assessment Prison and the Metropolitan Remand Centre from March 2016 until the date of the hearing.
2. The Respondents referred to the definition of accommodation contained in the EO Act and submitted that the ss 52 and 53 relate to circumstances where a person is applying for or seeking accommodation, as distinct from the person being detained in particular accommodation. Mr Whittingham made no submissions in relation to this and in my view it is clear that any alleged discrimination could not occur in the area of accommodation.

1. Given my conclusions, as stated above, that there is no discrimination under the EO Act it is unnecessary to consider s 75 of the EO Act.

1. The Respondent submitted that even if the facts supported Mr Whittingham assertions alleging that the passing on of information to other parties gave rise to a breach of this section, in order for there to be a breach there must first be an actual finding of discrimination under EO Act. In this case this has not occurred so there can be no liability under s 105.
2. I agree. There is no basis for a claim under this section.

1. The application suggests that Mr Whittingham is claiming he was sexually harassed by members of a 'qualifying body' or in the provision of accommodation.
2. I accept the Respondents' submission that it is not a qualifying body and for the reasons previously discussed it did not provide accommodation to Mr Whittingham within the meaning of the EO Act.
3. There is also no evidence of sexual harassment as that term is defined in s 92(1) of the EO Act.[6]
4. There is therefore no basis for this claim.

1. Given my findings above I do not believe it is necessary to reach a conclusion on this point.

1. Dealing with an application under section 75 I am required to take Mr Whittingham's case at its highest. What this means is that I must presume that he can provide evidence to substantiate his claims in relation to the factual matters asserted and argue his legal case to substantiate his claim.
2. I have done this and accepted that for the purpose of this hearing he has protected attributes and that comments were made by the first and third respondents in relation to the process for changing name and the validity or otherwise of Mr Whittingham adopting his wife's maiden name.
3. I have concluded that there is no area of public life covered by the EO Act which is relevant to this application. I have also concluded that there is no authorised or assisted discrimination or sexual harassment.
4. Consequently Mr Whittingham's claim must fail.
5. I am satisfied that granting the Respondents' application does not amount to a breach of the Charter or the VCAT Act.
6. Given the above, Mr Whittingham's application is dismissed as it is misconceived and lacking in substance.

[1] [2015] VCAT 1683, [8]-[10].

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

[3] s 10 Motive is irrelevant to discrimination

In determining whether or not a person discriminates, the person's motive is irrelevant.

[4] Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2629, [32].

[5] [2015] VCAT 941, [69].

(1) For the purpose of this Act, a person sexually harasses another person if he or she -

(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or

(b) engages in any other unwelcome conduct of a sexual nature in relation to the other person -

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

(2) In subsection (1) conduct of a sexual nature includes -

(a) subjecting a person to any act of physical intimacy;

(b) making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence;

(c) making any gesture, action or comment of a sexual nature in a person's presence.