JUDITH LANIGAN	Applicant
v
CIRCUS OZ	First Respondent
NICK YATES	Second Respondent
ZALT GROUP	Third Respondent
ZANDY FELL	Fourth Respondent
AND BETWEEN
CIRCUS OZ	First Applicant
NICK YATES	Second Applicant
v
JUDITH LANIGAN	Respondent

---

JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 October 2021
DATE OF JUDGMENT:	9 February 2022
CASE MAY BE CITED AS:	Lanigan v Circus Oz & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 35

---

ADMINISTRATIVE LAW — Applications for leave to appeal from orders of Victorian Civil and Administrative Tribunal (‘Tribunal’) — Whether claims of sexual harassment and victimisation under the Equal Opportunity Act 2010 are subject to the Limitation of Actions Act 1958 — Whether the Tribunal is a court for the purposes of the Limitation of Actions Act 1958 — Whether a claim for contravention of the Equal Opportunity Act 2010 is an action founded on tort — Whether it was manifestly unreasonable for the Tribunal to refuse to strike out claims on grounds of delay — Whether Tribunal erred in failing to dismiss claims as misconceived and lacking in substance — Equal Opportunity Act 2010 ss 92, 103, 104, 188 — Limitation of Actions Act 1958 ss 3, 5 — Victorian Civil and Administrative Tribunal Act 1998 ss 75, 76, 148 — Commercial Arbitration Act 2011 s 8 — Civil Procedure Act 2010 s 7.

---

APPEARANCES:	Counsel	Solicitors
SCI 2020 04734
For the Applicant	Mr M Harmer, solicitor	Harmers Workplace Lawyers
For the First and Second Respondents	Ms R Preston	Gilchrist Connell
S ECI 2021 00480
For the Applicants	Ms R Preston	Gilchrist Connell
For the Respondent	Mr M Harmer, solicitor	Harmers Workplace Lawyers

HIS HONOUR:

Introduction

On 5 and 6 October 2021 the Court heard two applications for leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘Tribunal’) in proceedings in which Ms Judith Lanigan alleges that she was subjected to sexual harassment and victimisation for which Circus Oz and its chairperson (the second respondent) (together ‘Circus Oz’) are liable.

Ms Lanigan seeks leave to appeal from an order of the Tribunal summarily dismissing any claim for relief that arises from any event or cause of action prior to 25 July 2012. The Tribunal summarily dismissed these claims on the basis that they were statute-barred by reason of the Limitation of Actions Act 1958 (‘Limitations Act’). The Tribunal Member erred in concluding that Ms Lanigan’s claims were subject to the Limitations Act. First, the Tribunal is not a court of law for the purposes of the Limitations Act. Second, a claim for contravention of the Equal Opportunity Act 2010 (‘EO Act’) is not an action founded on tort. Ms Lanigan will be granted leave to appeal and the appeal will be upheld.

Circus Oz seeks leave to appeal from an order of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lanigan v Circus Oz & Ors

Details

AGLC: Lanigan v Circus Oz [2022] VSC 35
Case: [2022] VSC 35
Decision Date: 9 February 2022

CaseChat Overview and Summary

In the Federal Court of Australia, Lanigan sought leave to appeal against a decision of the Victorian Civil and Administrative Tribunal (Tribunal), which dismissed her claims of sexual harassment and victimisation under the Equal Opportunity Act 2010 (EOA). The Tribunal held that her claims were subject to the Limitation of Actions Act 1958 (Vic) (LAA) and, being outside the limitation period, were either to be dismissed or, alternatively, struck out. Lanigan's application for leave to appeal was based on the assertion that the Tribunal erred in its determination that the LAA applied to her claims, and that her claims should have been dismissed as misconceived or, at the very least, struck out as lacking in substance.

The legal issues before the court were whether the Tribunal is a court for the purposes of the LAA, whether claims of sexual harassment and victimisation under the EOA are subject to the LAA, and whether claims of contravention of the EOA are actions founded on tort. Additionally, the court had to consider whether it was manifestly unreasonable for the Tribunal to refuse to strike out Lanigan's claims on grounds of delay, and whether the Tribunal erred in failing to dismiss the claims as misconceived and lacking in substance.

The court held that the Tribunal is not a court for the purposes of the LAA. Accordingly, the LAA does not apply to claims under the EOA. The court found that the Tribunal was correct in its conclusion that the limitation periods under the LAA were inapplicable. The court further held that claims under the EOA are not actions founded on tort. The court also determined that it was not manifestly unreasonable for the Tribunal to refuse to strike out Lanigan's claims on grounds of delay, and that the Tribunal did not err in failing to dismiss the claims as misconceived and lacking in substance.

The court dismissed the application for leave to appeal.

Orders