Martinovic v The Actors Pulse - [2023] NSWCATAD 310

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Martinovic v The Actors Pulse [2023] NSWCATAD 310
Hearing dates: 18 September 2023
Date of orders: 06 December 2023
Decision date: 06 December 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Andelman, Senior Member
Decision:
The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013

Catchwords:
PRACTICE AND PROCEDURE – Summary dismissal of proceedings under s 55(1)(b) of the Civil and Administrative Act 2013 – whether the applicant’s discrimination claims are misconceived or lacking in substance
HUMAN RIGHTS – Sexual harassment – educational institution – provision of goods and service - aiding and abetting – liability of principals and employers

Legislation Cited:
Anti-Discrimination Act 1977
Civil and Administrative Act 2013

Cases Cited:
Braiding v Charles Sturt University [2015] NSWCATAD 242
Dixon v RNJ Sicame Pty Ltd & Anor [2002] NSWADT 154
Elliott v Nanda 2001 [FCA] 418; (2001) 111 FCR 240
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Goldsteen v TCI Bondi Junction Pty Ltd [2018] NSWCATAD 135
Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179
Petersen v Moloney (1951) 84 CLR 91
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Category: Procedural rulings
Parties: Ivana Martinovic (Applicant)
The Actors Pulse (Respondent)
Representation:
Counsel:
I Latham (Respondent)
Solicitors:
Applicant (Self represented)
Bolzan and Dimitri Lawyers (Respondent)

File Number(s): 2023/00122616
Publication restriction: Nil

REASONS FOR DECISION

Background

Ms Martinovic, the applicant in this proceeding, brought a claim pursuant to the Anti-Discrimination Act (NSW) (the AD Act) against The Actors Pulse (TAP) claiming that TAP was liable for the conduct of its student, Ms Bontempelli who sexually harassed her on 10 February 2022.
TAP sought to summarily dismiss the proceedings pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) on the basis that the proceedings are misconceived or lacking in substance.
TAP submitted that it was not liable for the conduct of Ms Bontempelli pursuant to s 22F and s 22E(2) of the Act as these provisions impose no direct liability upon it.
For the reasons that follow I have decided to grant the application for summary dismissal.

Relevant Law

Ms Martinovic’s claim is made pursuant to ss 22A, 22E and 22F of the AD Act. Section 22A defines ‘sexual harassment’ to include conduct that is an ‘unwelcome sexual advance or other unwelcome conduct of a sexual nature’ in relation to the person ‘in circumstances in which a reasonable person, having regard to the circumstances of the case, would have anticipated that the other person would be offended, humiliated or intimidated’.
Section 22E(2) makes it unlawful for an adult student at an educational institution to sexually harass a person who is a student at the institution. It was not in…

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 Martinovic v The Actors Pulse

Details

AGLC: Martinovic v The Actors Pulse [2023] NSWCATAD 310
Case: [2023] NSWCATAD 310
Decision Date: 06 December 2023

CaseChat Overview and Summary

Martinovic v The Actors Pulse involved a dispute between a former student and an educational institution, with the case being heard in the Civil and Administrative Tribunal of New South Wales. The applicant, a former student, alleged that the respondent, an acting school, failed to appropriately address her claims of sexual harassment by one of its tutors. The respondent sought summary dismissal of the applicant’s claims, arguing that they were misconceived and lacking in substance.

The court was tasked with determining whether the applicant's claims were so lacking in substance as to warrant dismissal under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013. The court considered whether the applicant's allegations were plausible, particularly in relation to the school's alleged failure to adequately address the harassment and whether the school could be held liable as an employer or as an aider and abettor. The court also assessed whether the applicant's claims were within the jurisdiction of the tribunal.

The tribunal found that the applicant's claims were speculative and not supported by sufficient evidence to warrant further proceedings. It held that the applicant's allegations, while serious, did not establish a plausible case against the respondent. The tribunal concluded that the claims were misconceived and lacking in substance, leading to the dismissal of the proceedings under section 55(1)(b) of the Act. The tribunal did not find it necessary to delve into the merits of the case as the preliminary jurisdictional and substantive issues were resolved in favour of the respondent.

Orders

Orders of the court

The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Martinovic v The Actors Pulse [2023] NSWCATAD 310
Hearing dates:	18 September 2023
Date of orders:	06 December 2023
Decision date:	06 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Andelman, Senior Member
Decision:	The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013
Catchwords:	PRACTICE AND PROCEDURE – Summary dismissal of proceedings under s 55(1)(b) of the Civil and Administrative Act 2013 – whether the applicant’s discrimination claims are misconceived or lacking in substance HUMAN RIGHTS – Sexual harassment – educational institution – provision of goods and service - aiding and abetting – liability of principals and employers
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Act 2013
Cases Cited:	Braiding v Charles Sturt University [2015] NSWCATAD 242 Dixon v RNJ Sicame Pty Ltd & Anor [2002] NSWADT 154 Elliott v Nanda 2001 [FCA] 418; (2001) 111 FCR 240 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Goldsteen v TCI Bondi Junction Pty Ltd [2018] NSWCATAD 135 Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 Petersen v Moloney (1951) 84 CLR 91 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Category:	Procedural rulings
Parties:	Ivana Martinovic (Applicant) The Actors Pulse (Respondent)
Representation:	Counsel: I Latham (Respondent) Solicitors: Applicant (Self represented) Bolzan and Dimitri Lawyers (Respondent)
File Number(s):	2023/00122616
Publication restriction:	Nil