Martinovic v The Actors Pulse

Ms Martinovic's evidence

1. Ms Martinovic and Ms Bontempelli were both studying performance acting at TAP from 2020. On 10 February 2022, Ms Martinovic and Ms Bontempelli were participating in an improvisational acting exercise. During the exercise without permission from Ms Martinovic, Ms Bontempelli started unbuttoning and unzipping her shorts and then she aggressively lifted up her shirt revealing her breasts. She felt Ms Bontempelli's hands against her breasts. Ms Martinovic pushed Ms Bontempelli away.
2. Ms Martinovic was immediately shocked and overwhelmed by Ms Bontempelli's conduct but attempted to cover up her feelings and continue as though the incident did not upset her. Ms Martinovic decided to leave the lesson soon after the incident but then changed her mind and decided to stay.
3. Mr Adi Ashur was the teacher supervising the lesson. He sent an email to Mr Milionis following Ms Martinovic informing him that she wanted to leave the lesson; 'can Ivana (Ms Martinovic) leave, no questions asked, something happened downstairs, we'll talk after class. Shes (sic) doesn't want it to be acknowledged, just leave quickly.'
4. Mr Milionis, the head teacher and owner of TAP sent a text message to Ms Martinovic later that evening 'hope your (sic) ok. Can we talk?'
5. Mr Milionis and Ms Martinovic had a meeting that evening. Ms Martinovic did not use the phrase 'sexual harassment' but described what happened. Ms Martinovic stated that Mr Milionis stated words to the effect; what happened to you was not malicious, Ms Bontempelli is a good girl and has not done something like this before, do you want to make a police report, what do you want me to do about Ms Bontempelli? During the meeting Ms Martinovic broke down and disagreed with Mr Milionis that the conduct was not malicious. Mr Milionis said words to the effect that he was sorry for what happened, he would suspend Ms Bontempelli but not straight away as she had her monologue and he would not take that away from her and that he would take care of it and she should not worry.
6. On 14 February 2022, Mr Milionis telephoned Ms Martinovic. Mr Milionis assumed that the matter with Ms Bontempelli was resolved because it was 'not malicious'. Ms Martinovic stated that she told Mr Milionis this is not what she said and that she did not feel safe. Mr Milionis asked Ms Martinovic to provide him with a statement about what happened on 10 February 2022. Ms Martinovic stated that as a result of having to speak about this a second time, it made her question Mr Milionis' intentions.
7. On 15 February 2022, Mr Milionis messaged Ms Martinovic about talking but Ms Martinovic did not feel 'safe' talking to him.
8. On 18 February 2022, Ms Martinovic stated that students and staff were aware of the incident at TAP.
9. Over the coming days and months, Ms Bontempelli's conduct and Mr Milionis' conduct caused Ms Martinovic to suffer increased stress and anxiety. She was not able to return to TAP to continue her studies, her employment and her personal relationships were adversely affected.
10. At the Tribunal Ms Martinovic put much of the blame on Mr Milionis for failing to adequately investigate the sexual harassment incident and not immediately expelling Ms Bontempelli.
11. During cross examination, Ms Martinovic stated that TAP did not follow its policy and only took action after the second time she spoke up and defined the conduct as 'sexual assault' and 'sexual harassment', as such she believed that TAP permitted or allowed Ms Bontempelli to sexually harass her.

Mr Milionis' evidence

1. Mr Milionis is the owner of TAP and is a teacher of performance acting for around thirty years. Mr Milionis stated that Mr Ashur commenced teaching in 2021 and that he was informed about TAP's policies and procedures. Mr Milionis' stated that Mr Ashur did not see the whole incident and did not understand on 10 February 2022 that Ms Martinovic believed that she was sexually harassed by Ms Bontempelli or touched in a violent or an inappropriate manner.
2. Mr Milionis agreed that TAP's policies prohibited students from touching each other without consent in a violent manner.
3. Mr Milionis explained that the course of the investigation process involved asking Ms Martinovic, Mr Ashur and Ms Bontempelli for statements, ordering CCTV footage of the incident on around 18 February 2023. The CCTV footage took some time to receive and some of the cameras were not operational. Mr Milionis received the CCTV footage on 5 or 6 March 2022. A very short fragment of the CCTV footage was before the Tribunal.
4. It was part of TAP's defence that on numerous occasions Mr Milionis proposed that Ms Martinovic attend classes at a different time to those attended by Ms Bontempelli so that there would be no contact between them. On or around 8 March 2022, Ms Bontempelli was expelled from TAP.
5. Mr Milionis' evidence was that he did not fully understand on 10 February 2022 that the allegation by Ms Martinovic was that Ms Bontempelli touched her in a sexual way with intent and malice and without consent. He did not understand that Ms Martinovic believed that she had been sexually assaulted by Ms Bontempelli. He stated that Ms Martinovic 'kept him in the dark about a lot of things' and that Ms Martinovic was protecting Ms Bontempelli because she did not want to get her friend into trouble.

Interlocutory application for summary dismissal

1. TAP's submission was that assuming Ms Martinovic was sexually harassed by Ms Bontempelli, it was not liable for the sexual harassment because; 1. pursuant to s 22E of the Act, it was not liable for Ms Bontempelli's conduct as it did not 'cause, instruct, induce, aid or permit her' to sexually harass Ms Martinovic within the meaning of s52 of the AD Act; and 2. pursuant to s 22F of the Act, it was not liable for Ms Bontempelli's conduct as it did not cause, instruct, induce, aid or permit her to sexually harass Ms Martinovic and that she was not an employee or an agent within the meaning of s 53.
2. TAP submitted that no argument about accessorial liability had been raised by Ms Martinovic and whether or not there was an investigation or the quality of the investigation did not go to the issue. However, TAP submitted that it was proper to require persons involved in the incident to provide written statements and conduct an investigation prior to coming to a conclusion about what occurred and what the outcome should be.
3. TAP submitted that permission to sexually harass could only have been given prior to the conduct and Ms Martinovic's submission that TAP 'permitted the conduct' because of what occurred following the conduct was misconceived.
4. The respondent relied on Dixon v RNJ Sicame Pty Ltd & Anor [2002] NSWADT 154 (Dixon) and Goldsteen v TCI Bondi Junction Pty Ltd [2018] NSWCATAD 135 (Goldsteen). In Dixon the applicants contended that a person was aware of the sexual harassment complaints for four months but delayed bringing these allegations to the attention of the first respondent. The Tribunal found that for the purpose of interpreting the word 'permit' in s 52 of the Act, the ordinary meaning is to be given, which is: to let something be done or occur, to tolerate, to agree to, to afford opportunity for, to admit. [43]
5. In Goldsteen at [28] the Tribunal stated that a person will 'permit' the conduct the subject of the primary complaint (in this case being sexual harassment at an educational institution or sexually harass another person in the provision of services to the other person), if he or she: (1) knows or has reason to anticipate or to suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it.
6. In Braiding v Charles Sturt University [2015] NSWCATAD 242 at [30], the Tribunal summarily dismissed the applicant's claim of 'aiding and abetting' on the basis that it was misconceived as the applicant was asserting that the person was exacerbating the discrimination that he had already been subject to. The Tribunal held that even if that conduct could be proved, it could not constitute a breach of s 52 of the Act.
7. As to TAP's application for costs, no special circumstances were raised by TAP apart from the 'difficulty of the case'.

Ms Martinovic's submission on the summary dismissal

1. Ms Martinovic relied on a bundle of documents, marked Exhibit A1. The document dated Tuesday 1 November 2022 on pages 9 and 10 set out submissions as to ss 22F, 22E, 50, 52 and 53 of the AD Act. As to s 22F, Ms Martinovic submitted that because she and Ms Bontempelli both pay TAP for classes, they receive and provide a service.
2. As to s 22E(2)(a), Ms Martinovic submitted that Ms Bontempelli is an adult student and that she sexually harassed her.
3. Ms Martinovic submitted that Ms Bontempelli is an 'agent' of Mr Milionis within the meaning of s 53. The rest of the submissions in regard to ss 50, 52 and 53 are entirely unclear.
4. Ms Martinovic's submission was that Mr Milionis: .. permitted sexual harassment to take place in his school. He has been lef (sic) by his feelings and his own emotions rather than what is written in his guidelines and rules. I have been an exception to those. What was made important was the defining. I had to define the situation for it to heard.
5. Ms Martinovic also submitted that Mr Milionis 'authorised' Ms Bontempelli's actions because he diminished the act, defended her, did not check the cameras and did not expel her immediately.
6. In oral closing submissions, Ms Martinovic submitted that 'Mr Milionis had allowed a culture that if you speak out, you will become the problem'. She stated that she left TAP because there was no resolution and she no longer felt safe.
7. Ms Martinovic submitted that Ms Bontempelli was also a victim because the investigation had no procedure and was not conducted fairly and that Mr Milionis should have dealt with 'it', (which I assume to be the sexual harassment complaint) immediately.

Consideration

1. In reaching the decision as to whether the proceedings are to be dismissed pursuant to s 55(1)(b) of the CAT Act, I am required to determine whether Ms Martinovic's complaint, taken at its highest against TAP cannot possibly succeed. The onus is on TAP to satisfy the Tribunal that the claim ought to be summarily dismissed because it is misconceived or lacking in substance.
2. For the purpose of this application, I accept that on 10 February 2022, Ms Martinovic was sexually harassed by Ms Bontempelli within the meaning of s22A of the AD Act and that Ms Martinovic relies on ss 52 and 53 of the AD Act in her claim against TAP.
3. Sections 22E(2), 22F(a) of the AD Act are applicable to the liability of acts of unlawful discrimination to the person or persons who have a primary statutory obligation to not engage in the unlawful conduct. The primary statutory obligation in s22E(2) is on an adult student.
4. Section 22F(a), read together with ss 4 and 53 of the AD Act places the primary statutory obligation on TAP if the person is an employee, a volunteer, an unpaid trainee, a principal or an agent of TAP and was 'authorised' to do the act; s 53(1).
5. Ms Martinovic submitted that Ms Bontempelli was an agent of TAP however such a submission is bound to fail as there is no evidence or submission to ground a legal claim of 'agency'. Petersen v Moloney (1951) 84 CLR 91 at 94. There is no suggestion that there was an agency agreement between TAP and Ms Bontempelli or that Ms Bontempelli's sexual harassment of Ms Martinovic was conduct as the agent for and on behalf of TAP. Ms Martinovic's submission that Ms Bontempelli was an 'agent' because she paid fees to TAP to study acting is rejected.
6. I find that Ms Martinovic's complaint pursuant to s 22F(a) against TAP cannot possibly succeed as the undisputed evidence was that Ms Bontempelli like Ms Martinovic was a student of TAP.
7. Principal liability may be extended beyond persons such as employers to other persons who contribute to the principal wrongdoer's act. The effect of s 52 is that the person like TAP may become jointly liable for the conduct of the principal wrongdoer, in this case Ms Bontempelli.
8. For TAP to be liable, Ms Martinovic must be able to lead evidence if accepted at the final hearing, that is capable of sustaining a finding that TAP 'aided' the unlawful conduct within the meaning of s 52 of the AD Act.
9. Ms Martinovic relied on the words 'permit another person'. Ms Martinovic relied on TAP's policy which she refers to in paragraph 3 of the Points of Claim to state that touching without consent is prohibited and that if any sexual harassment is brought to Mr Milionis' attention, immediate action will be taken and the student will be expelled immediately.
10. In Elliott v Nanda (2001) 111 FCR 240 (Nanda), Moore J found that Commonwealth Employment Service (CES) was aiding and abetting sexual harassment of Dr Nanda because it knew that four persons it had previously referred for employment complained to it that they had been subject to sexual harassment and with that knowledge CES continued to refer persons for employment with Dr Nanda and on this basis, permitted Dr Nanda to engage in unlawful conduct.
11. As Moore J stated in Nanda at [163] in regard to s105 of the Sex Discrimination Act 1984 (Cth), which is in similar terms to s52 of AD Act: Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue. In my opinion, a person can, for the purposes of s 105, permit another person to do an act which is unlawful, such as discriminate against a woman on the grounds of her sex, if, before the unlawful act occurs, the permitter knowingly places the victim of the unlawful conduct in a situation where there is a real, and something more than a remote, possibility that the unlawful conduct will occur. That is certainly so in circumstances where the permitter can require the person to put in place measures designed to influence, if not control, the person's conduct or the conduct of that person's employees.
12. The Tribunal in Dixon relied on the reasoning adopted in Nanda in interpreting s 52 of the AD Act. In Goldsteen, Britton JM as she was then, stated that for a person to be liable under s52, the person must know or suspect that a particular act is to be done prior to it being done, has the power to prevent it and fails to prevent it.
13. This case falls at the first hurdle. There is no suggestion in this case that Ms Bontempelli sexually harassed another person at TAP previously or that TAP had any reason to suspect that Ms Bontempelli would sexually harass another person.
14. Even if assuming that TAP did not comply with its policy and expel Ms Bontempelli on the evening of 10 February 2022, which I do for the purpose of this application, it cannot be made out that it 'permitted' Ms Bontempelli in her unlawful conduct as it cannot be said that TAP caused, instructed, induced, aided or permitted Ms Bontempelli to sexually harass Ms Martinovic. For this reason the submission that TAP is liable pursuant to s 52 of the AD Act is misconceived.
15. The Tribunal makes the following order: 1. The proceeding is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2023