Federal Court of Australia

Trotta v Northern Health [2021] FCA 668

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Interlocutory Application for leave to bring proceedings pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) be dismissed.

2.    The Applicant pay the costs of the First Respondent in the sum of $3,000.00 but otherwise there be no orders as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    This is an interlocutory application of the Applicant, Mr Trotta. He seeks:

(a)    a grant of leave nunc pro tunc to permit him to bring proceedings pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRCA); and

(b)    an extension of time to permit him to take that course.

2    Mr Trotta’s father died on 27 October 2019 after his admission on 25 October 2019 to the Northern Hospital, Epping, which is operated by the First Respondent Northern Health. The Applicant’s father had been transported to that hospital by ambulance following a fall. At the time of his admission the Applicant’s father was 99 years old.

3    On 25 December 2019 Mr Trotta sent the first of what became a series of e-mails to the Australian Human Rights Commission (the Commission). In that first e-mail Mr Trotta described his father as having been, prior to his admission, a happy elderly man with no illness. He thereafter made a series of serious complaints about the conduct of the First Respondent, Northern Health, and its staff.

4    It is uncontentious that on 7 December 2020 the President of the Commission, by her delegate Ms Holt, made a decision to terminate Mr Trotta's complaints and those he had advanced on behalf of his deceased father without enquiry under s 46PF(1)(b) and s 46PH(1)(c) of the AHRCA.

5    Where a complaint has been terminated under s 46PF(1)(b) and s 46PH(1)(c) of the AHRCA, an application to either this Court or the Federal Circuit Court of Australia to pursue a complaint under the AHRCA can only be made if the court concerned grants leave to make the application. An application to the court must be made within 60 days of the date on the Notice of Termination.

6    Mr Trotta lodged his (purported) application in this Court on 9 February 2021. In his Originating Application he sought:

A declaration that the Respondent Northern Health sent unprofessional incompetent staff, to inhumanely perpetrate ‘Involuntary Euthanasia’ and has unlawfully discriminated within the meaning of section 122 of the ODA against the Applicant, and his late father. The Applicant asks the Court for a written public apology from the Respondent to be published in all newspapers. and

An order that Northern Health pay compensation to be assessed to the Applicant. Including Compensation for loss of income, loss of career, $265,000.00 per year for life.

An order that the Respondent not be allowed to continue with the anonymous staff who secretly, unlawfully perpetrated ‘Involuntary Euthanasia’ at the request of a Supervisor/Consultant Geriatrician who should not be allowed to remain anonymous.

7    By administrative oversight Mr Trotta’s application was accepted for filing in the Registry of the Court notwithstanding he neither had obtained leave for that to be done nor had he brought those proceedings within 60 days of the date of the Notice of Termination.

8    That circumstance having been later revealed, after hearing from the parties on 16 April 2021, the Court, by consent, ordered:

(1)    Unless the Applicant files and serves an Interlocutory Application seeking nunc pro tunc:

(a)    an extension of time to commence these proceedings; and,

(b)    leave pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) to make that application,

each no later than 4:00pm on Monday 17 May 2021, these proceedings be dismissed.

(2)    An application made pursuant to Order 1 must be supported by one or more affidavits filed on behalf of the Applicant at the same time setting out the facts upon which the Applicant relies and his contentions as to why an extension of time and such leave should be granted.

(3)    If an application is made by the Applicant pursuant to Order 1 and supported by such material the Respondents are to file and serve any responsive affidavit or affidavits upon which they would seek to rely in opposition to that application no later than 4:00pm on Monday 31 May 2021.

(4)    Unless the Court otherwise orders any Interlocutory Application filed and served pursuant to Order 1 be heard and determined on the papers.

(5)    Liberty to apply.

(6)    Costs reserved.

9    On 17 May 2021 Mr Trotta filed an interlocutory application seeking orders as follows:

1.    The applicant seeks nunc pro tunc leave pursuant to s 46P0(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) to make the application filed on 09 February 2021. The applicant seeks leave granted nunc pro tunc.

2.    An extension of time to commence these proceedings. The Originating Application was lodged two days late on 9/0212021, due to illness; Rapid Atrial Fibrillation. The applicant seeks to be granted an extension of time for two days within which to bring this application nunc pro tunc.

10    Mr Trotta supported that interlocutory application with an affidavit filed on 17 May 2021 in the following terms:

1.    I am the Applicant. I am a Disability Pensioner awaiting Victoria Legal Aid, and/or Pro Bono Barrister.

2.    The attached documents are evidence of merit, and that I have an arguable case, of persuasive value to enable FCA to grant nunc pro tune leave under s 46P0(3A){a) of the Australian Human Rights Commission Act 1986 (Cth).

3.    The attached Annexures JT 15, JT 16, JT 17, provide evidence of unlawful Disability Discrimination against me, and unlawful Age Discrimination against my late father.

4.    This case is about the discriminatory behaviour of some Northern Health staff on the weekend of 25, 26, 27 October 2019. Three staff Dr Victor Duong, Dr Cindy Bach and Dr Rusheesh aka Dr Warrior were especially cold, callous, insensitive, heartless, aggressive, violent and inhumane.

5.    Annexure JT-15 is my two page statement to Police dated 29 January 2020. This provides evidence of unlawful Disability and Age discrimination.

6.    Annexure JT-16 is my one page handwritten statement to Police dated 26 January 2020.

7.    Annexure JT-17 is my six page statement to Police dated 18 December 2019.

8.    Annexures JT-18 and JT-19 redacted expert evidence from my psychologist dated 15/02/2021 and 04/05/2021.

9.    The callous, reprehensible, and inhumane behaviour by Dr Duong and Dr Rusheesh aka Dr Warrior, caused my father to die distressed, and deprived him of the dignity he deserved in his final moments. - As a result of which I am suffering severe Post Traumatic Stress Disorder.

10.     I do not NOT believe that my father was "murdered" in Northern Hospital, but that Dr Bach, Dr Duong and Dr Rusheesh aka Dr Warrior; pretended to "murder" him to cause me maximum psychological and emotional trauma. - Amounting to unlawful Disability Discrimination, outraging public decency. (And "Involuntary Euthanasia" needs to be considered, in the context of Age and Disability Discrimination.)

11    On the same day Mr Trotta filed a further affidavit in which he refers to the disabilities he suffers from. I take that affidavit to support his submission that these proceedings should be, and could conveniently be, determined on the papers having regard to the difficulties he would have in conducting them in person. I do not take it to be relevant, other than in that context, to the merits of his Interlocutory Application.

12    On 31 May 2021, Mr Richard Laufer, Chief Legal Officer for the First Respondent, filed an affidavit on behalf of the several Respondents. In that affidavit Mr Laufer disputes the substance of much of which Mr Trotta asserts to have been the relevant facts. It is uncontentious that much of that material is hearsay.

13    I will return to those materials shortly but first it is appropriate to chart the evolution of Mr Trotta’s claims as they were advanced before the Commission and describe how they were dealt with. The latter has some greater than usual significance because the Commission’s response occurred in two phases—as will be seen from the history set out below.

The Applicant’s claims in the Commission: Phase 1

14    The Commission initially progressed what came before it by reason of Mr Trotta’s e-mails from 25 December 2019 onwards as a complaint made by him on behalf of his late father Mr Elino Trotta, alleging age discrimination under the Age Discrimination Act 2004 (Cth) (the ADA) against the following Respondents:

•    Northern Health

•    Dr Victor Duong

•    Dr Cindy [Bach]

•    Dr Vera

15    On 30 July 2020 Mr Trotta was granted leave to amend his complaint to add himself as a complainant. On his own behalf he alleged:

•    Victimisation under the ADA against Northern Health only; and

•    Disability discrimination and victimisation under the Disability Discrimination Act 1992 (Cth) (DDA) against:

-    Northern Health

-    Dr Duong

-    Dr Bach Dr Vera

-    Dr 'Boxer' Rusheesh.

16    The Commission identified from what Mr Trotta stated in his e-mails and the materials he supplied to the Commission the gravamen of what he was alleging to have been the facts concerning his father’s death and the surrounding events as follows:

•    You had been your father’s carer since 2011.

•    On 25 October 2019, your father, 99 years of age at the time, had a fall at home, so you took him by ambulance to Northern Hospital for a check-up.

•    When you arrived at the hospital, a group of young staff including Dr Vera, Dr Cindy and a nurse called Kara shouted abuse and were jeering and booing.

•    You did not know their surnames – the original complaint identifies them simply as ‘Dr Vera’, ‘Dr Cindy’ and ‘Kara’.

•    Dr Vera and Dr Cindy screamed, ‘You’ve had him for long enough....’ and other threats were made as you tried to get emergency assistance.

•    Dr Cindy refused to do an x-ray for your father's broken arm.

•    On 26 October 2019, you did not visit the hospital, but you were told that your father was okay.

•    When you visited your father on 27 October 2019, he stopped breathing in front of you. You tried mouth-to-mouth resuscitation twice but could not revive him.

•    Dr Duong rushed into the room very aggressively and violently started shouting, ‘Do not resuscitate. Do not resuscitate… It is written... Let him die... Let him die.’

•    You called for CPR in accordance with the Advance Care Plan of 29 December 2017, but staff refused.

•    You were assaulted by Dr Duong and another doctor who you identify as Dr ‘Boxer’ Rusheesh.

•    Your father died.

•    You later found out that because of his age, your father had been secretly placed in an abandoned room, was denied life-saving medication and other services, and was not given treatment for the injuries from his fall. This is despite your father having earlier told the ambulance officers that he wanted treatment.

•    Dr Vera made a secret decision on the weekend of 26 and 27 October 2019 to withdraw life-sustaining treatment for your father because of his age. There was no communication with you or your father about this, and neither he nor you gave informed consent.

•    Dr Cindy involuntarily euthanised your father because she was drunk and mentally impaired.

•    You want an investigation into the doctors at the hospital.

17    The only finding the Commission made was that it concluded that it was not clear on those materials that Dr Rusheesh had done anything that might reasonably be arguable to have manifested age discrimination towards Mr Trotta’s father.

18    Otherwise on 4 February 2020 the President of the Commission informed Mr Trotta that the Commission was considering terminating his complaints without enquiry on the ground that the President might be satisfied that the subject matter could be more effectively or conveniently be dealt with by another statutory authority such as the Victorian Health Complaints Commissioner and/or the Australian Health Practitioner Registration Agency.

19    Mr Trotta was provided with the opportunity to comment and respond.

20    The Court infers (by reason that the Commission subsequently received its response) that Northern Health was provided with a similar opportunity.

The Applicant’s claims in the Commission: Phase 2

21    Mr Trotta took advantage of the opportunity that he had been given to respond to the Commission’s indication that it was considering terminating his complaints without enquiry. He provided the Commission with further details of what he wanted it to consider by e-mails and documents. The Commission (in its Phase 2 termination decision) later summarised the additional factual premises of his complaints it had received as had been supplemented by those materials up to 3 April 2020 as follows:

•    Even before the ambulance arrived at your home on 25 October 2019 to collect your father, Dr Vera and Dr Cindy had made a decision to murder your father for political, non-medical reasons based on age discrimination.

•    As the ambulance officers wheeled your father into the hospital, Nurse Kara and the group of “ten angry young people” stared at you and your father. Nurse Kara was aggressive and she moved you and your father from room to room.

•    Dr Cindy said, “You've had him long enough we will let him die now” and “We will get away with it and blame it on old age.” Dr Vera also made threats to kill your father.

•    Your father was killed by Dr Duong at Dr Cindy's request. Dr Sian Brooker and Dr Adam Skinner were accomplices.

22    The Commission summarised the further claims Mr Trotta made as follows;

•    You have Autism Spectrum Disorder which you say impacts on your social skills and communication. Also, you had complaints before this Commission in 2016 and 2018 under the DDA about decisions by Northern Health to suspend your access to non-emergency cardiac care on the basis of allegations you had made about your treating practitioners and to revoke the provision of aged care services to your father on the basis of concerns that you had exhibited bullying behaviour towards its staff members.

•    In the course of your father's treatment at the hospital on 25, 26 and 27 October 2019, not only was your father subject to age discrimination, you yourself were discriminated against on the ground of your disabilities and/or victimised:

-    Dr Cindy said ‘You've had [your father] for long enough... you retard... we'll kill your daddy now’. She killed your father because you had complained about the GOPC Form that Dr Tong had completed for your father in October 2017 marked ‘not for CPR or intubation’.

-    Dr Vera said 'We've given him maximum oxygen. We'll teach ya to make complaint against Dr Tong'.

-    Dr Duong pushed you against the wall of the hospital room 'like a raging bull'.

-    After you father died, Dr Rusheesh said 'that'll teach you to complain about Dr Tong'. She also 'violently assaulted' you.

-    They each made mocking comments and bullied and teased you. As such, you were treated less favourably than family members without your disabilities would have been treated in the same or similar circumstances.

•    You have been victimised by Northern Health pursuing 'vexatious' proceedings at VCAT, by seeking to appeal OVIC's decision to amend the GOPC Form when Northern Health allegedly did not have standing to do so.

•    You have also been victimised for making the current complaint of age discrimination on behalf of your father. After your emails to Northern Health for clarification about your father's treatment and death on 25, 26 and 27 October 2019, Northern Health has raised concerns about you using a telecommunication service to harass their staff members and sought police intervention.

23    In addition to those complaints the Commission acknowledged that Mr Trotta had made a claim of racial discrimination on the basis that his father had not been provided with an Italian interpreter on 25-27 October 2019.

24    Mr Trotta was granted leave to amend his complaints to introduce the further issues summarised above.

25    The Commission also acknowledged that Mr Trotta had complained as follows:

•    You raise more detailed concerns about alleged acts by Dr Edwina Holbeach, Consultant Geriatrician at Northern Health. You say that Dr Holbeach 'falsified' a GOPC Form in relation to your father on 16 September 2019 without consulting you - specifically, that she marked him as 'Not for CPR/intubation' and noted that in the event of cardiorespiratory arrest, the outcome for your father would be very poor and CPR/intubation would be futile.

•    You also say Dr Holbeach also held 'secret' and 'political' meetings with other doctors and circulated documents to them that erroneously referred to you as having been diagnosed with schizophrenia.

26    The Commission received a response on behalf of Northern Health (which appears to be a copy of that which it had provided directly to Mr Trotta) on 27 March 2020 in which it contended as follows:

•    Your father arrived at the hospital's Emergency Department on 25 October 2019 at approximately at 5.32am. The nurse who conducted an initial assessment at that time was not female, as you assert.

•    Your father did not come to the hospital “for a check-up” as you assert. Rather, he arrived with a case of severe pneumonia that was actively treated in comprehensive fashion by a wide range of clinicians, with active treatment commencing less than nine minutes after arrival.

•    The doctor who commenced treatment was not female and was a senior practitioner. The doctor who next treated your father was a consultant who was also not female. Accordingly, Northern Health’s enquiries indicate there were no persons named Dr Vera or Dr Cindy who had any involvement with either you or your father at, or shortly after your arrival at the Emergency Department. There were no doctors in the Emergency Department at that time named either Vera or Cindy.

•    No Emergency Department clinicians were involved in the care of your father after his transfer to the medical ward on 25 October 2019.

•    Your father did not require intensive care unit management. His-condition deteriorated suddenly, a short time after the senior treating doctor had met with you and explained that your father may not survive.

•    Northern Health is instructed that your father was already deceased at the time when you called for CPR.

•    You have raised the same or similar subject matter with a range of other bodies including the HCC.

27    The Commission provided Mr Trotta with a copy of Northern Health’s response on 7 April 2020.

28    On 7 December 2020 the President of the Commission, by her delegate Ms Holt (the President), made a decision to terminate Mr Trotta’s complaints on his own account and on behalf of his father under s 46PF(1)(b) and s 46PH(1)(c) of the AHRCA. The President provided a statement of reasons from which the facts as relevant to the proceedings in the Commission set out above have been drawn.

29    The President reasoned that because there was no information before the Commission to indicate that Mr Trotta’s father had made any requests for an Italian interpreter, there was no reasonably arguable claim of racial discrimination before her. She had also had not progressed any of his complaints on the ground of disability as those claims had not been sufficiently particularised and did not appear to support a reasonably arguable claim of disability on that basis.

30    The President stated in her termination reasons at page 12:

I appreciate you disagree with what appears to be a medical decision by Dr Holbeach in the weeks prior to your father's treatment and death at Northern Hospital on 25, 26 and 27 October 2019. However, in relation to Dr Holbeach's medical assessment of your father, I consider that there is insufficient information to support a reasonably arguable claim of unlawful discrimination or victimisation against Dr Holbeach in relation to you your father under the ADA or DDA and accordingly, Dr Holbeach has not been considered or progressed as a respondent.

I also consider that there is insufficient information to support a reasonably arguable claim of unlawful discrimination or victimisation under the ADA or DDA in relation to your concerns about Northern Health staff members allegedly imputing you with a false diagnosis of schizophrenia, so this issue is not being considered or progressed as part of your complaint.

31    The President expressed some concerns about the apparent merit of Mr Trotta’s factual complaints but I do not take that to have been decisive.

32    The substantive reasons for the President’s decision to terminate Mr Trotta’s complaints were reflected in the following paragraphs which appear under the heading; “Other actions taken and/or remedies available”:

You raise a number of very serious allegations about your father's medical treatment on 25, 26 and 27 October 2019. Your allegations include that doctors made threats to kill your father; that a secret decision was made to withdraw life­ sustaining treatment; that it already decided to murder your father even before the ambulance arrived at your home to collect him; that your father was involuntarily euthanised; and that a doctor treating your father was drunk and mentally impaired.

I note you have already made a complaint about the same or substantially the same subject matter to the HCC - however, on 28 January 2020 the HCC advised you that 'could not assist you further in this instance' and referred you to AHPRA. Information about AHPRA's investigation process can be accessed on its website here. AHPRA through its National Boards can conduct investigations, place requirements on a practitioner's registration, and for very serious matters, refer a practitioner to VCAT for registration suspension or cancellation. It appears you have tried to complain to AHPRA- however, you have recently told the Commission that AHPRA is refusing to investigate and has lost evidence. The current status of any investigation by AHPRA is not clear.

Further, I note the circumstances of your father's death have also been investigated by the coroner. Information about the coroner's death investigation process can be accessed on its website here. In the course of an investigation, the coroner can obtain information and documents from various people and organisations and request expert reports and opinions. The coroner will also determine if an inquest is required. The coroner will make a finding at the end of every investigation, sometimes with recommendations. The HCC documents you provided to this Commission on 28 March 2020 indicate that Northern Health has advised the HCC that it intends to cooperate with the coroner's investigation. The current status of the coroner's investigation is not clear.

In my view, the circumstances of your father's death are complex because there appears to have been different information at the time of his death regarding whether or not to conduct CPR on him - I refer specifically to the different GOPC Forms and Advanced Care Plans that you have provided and/or referred to in your correspondence to the Commission. I also consider that the very serious nature of your allegations about doctor misconduct and your father's death are better considered by agencies with expertise in such matters and the power to make findings, such as AHPRA and the coroner. It is difficult for this Commission, whose jurisdiction is federal anti-discrimination and human rights law, to assess allegations about the quality of medical treatment and the basis for medical decisions or actions.

…

For the above reasons, I consider that there are other more appropriate actions and remedies available to you for key issues raised in your complaint.

33    The President stated that there was no reasonable prospect of the parties achieving a practical outcome by way of conciliation through the Commission’s processes.

34    The President’s decision was as follows:

After considering all of the above factors, I have decided that it is appropriate to terminate the complaint without inquiry because I am satisfied, having regard to all the circumstances, that an inquiry into the complaint is not warranted.

35    Mr Trotta was advised regarding his legal rights by the President as follows:

The AHRCA says that after a complaint is terminated, the person affected by the alleged discrimination may be able to apply to the Federal Circuit Court of Australia (FCCA) or the Federal Court of Australia (FCA) to have the allegations decided by the court.

The law also says that if a complaint is terminated under sections 46PF(1)(b) and 46PH(1)(c) of the AHRCA, an application to the court can only be made if the court concerned grants leave to make the application.

…

Any application to the court must be made within 60 days of the date on the Notice of Termination.

…

36    Notwithstanding his having received that advice Mr Trotta did not seek leave to make an application to have his allegations decided by the Court. Instead on 9 February 2021 he filed a purported application without such leave. Thus, even assuming leave had been obtained, this proceeding was not commenced within 60 days of the date of the Notice of Termination. It would have been (purportedly) commenced two days out of time.

37     Section 46PO of the AHRCA relevantly provides:

Application to court if complaint is terminated

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

 (3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b)….

38    Mr Trotta submits that the Court should exercise its power, nunc pro tunc, both to grant leave and to extend the time for making each application.

39    Mr Trotta is self-represented. When it was identified that leave was required to bring these proceedings the Applicant filed an affidavit dated 15 April 2021. In his affidavit he exhibited medical certificates in which two medical practitioners certified to the effect that his medical conditions meant it would be appropriate to allow him a six months adjournment. I need not traverse the list of significant conditions Mr Trotta’s treating doctors cited as relevant in that regard. It is sufficient to note there is nothing in what they state to suggest the significant chronic conditions they identify he suffers from would be likely resolve in six months. In the end it was unnecessary for the Court to rule upon the question of an adjournment. Mr Trotta consented to having the threshold leave issue(s) heard and determined after written materials were to be filed on the papers. Those are the matters now before the Court.

40    In respect of the approach which the Court is to apply in deciding whether an extension of time should be granted, Markovic J summarised the principles for determining whether to grant an extension of time under s 46PO(2) of the AHRCA in Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680. At [18] her Honour said:

18.    In considering whether to grant an extension of time under s 46PO(2) of the AHRC Act the three principal matters for the Court to take into account are the explanation for the delay; any prejudice to the respondents, including any prejudice to them in defending the proceeding occasioned by the delay; and whether the applicant has an arguable case: see Vergara v Living and Leisure Australia Ltd [2013] FCA 775 (Vergara) at [3] (Davies J).

41    I agree with, and adopt, Markovic J’s statement.

42    At the outset I should indicate that I am unpersuaded that the Respondents will suffer any significant prejudice by reason of these proceedings being permitted to be commenced two days out of time. While Mr Trotta has advanced no reason other than his general ill health as might explain his delinquency in that regard, neither have the Respondents identified any actual prejudice they might suffer on that account. The critical issue with respect to whether Mr Trotta should be permitted to commence his proceeding notwithstanding it having been filed out of time involves overlapping, albeit not identical, considerations with those which arises in respect to whether he should have leave to commence them at all. I therefore first turn to that question.

Should leave be granted to commence proceedings?

43    In respect of the test for leave for the purposes of s 46PO(3A)(a) of the AHRCA I adopt Mortimer J’s reasoning in James v WorkPower Inc [2018] FCA 2083 (James). The correctness of that approach was referred to as “uncontentious” by Steward J in Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460. In James her Honour reasoned at [31]-[32] as follows:

31    Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding (eg to serve out of the jurisdiction or to issue a subpoena: see rr 10.43(2) and 24.01 of the Federal Court Rules 2011 (Cth)) or to issue a proceeding (eg in relation to vexatious litigants or where leave is required to appeal: see ss 37AR and 24(1A) of the Federal Court of Australia Act 1976 (Cth), the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.

32    The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

44    Mortimer J held that s 46PO(3A)(a) acts as a “filter” to exclude, amongst other things, fanciful claims. However, for that purpose, it did not set a particularly high bar. Her Honour said at [37]:

37    I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

45    Mortimer J however rightly observed that the role of a Court in a leave application is not to embark on a detailed consideration of the merits of an applicant’s underlying arguments about unlawful discrimination. Rather, the role of the Court is to consider–perhaps in an impressionistic way–whether the contentions of the applicant are sufficiently arguable such that leave should be granted. I approach this matter on that basis.

46    It is convenient to split the Court’s consideration of whether leave should be granted into two aspects. The first aspect is whether Mr Trotta has established that he should be permitted to bring a proceeding alleging unlawful discrimination by one or more of the Respondents to the terminated complaints he filed on behalf of his late father Mr Elino Trotta, in particular, but not limited to, an allegation of age discrimination under the ADA. The second aspect is whether Mr Trotta has established that he should be permitted to bring a proceeding alleging unlawful discrimination by one or more of the Respondents in respect of the terminated complaints he made in the Commission proceedings on his own behalf.

Complaints on father’s behalf

47    The AHRCA permits a complaint to be made on behalf of another person. The Act is remedial in character and should be given a broad operation. I do not take the Respondents to suggest otherwise, but in any event I am satisfied that there is not a statutory bar to Mr Trotta pursuing a complaint of discrimination on behalf of his father simply because his father is no longer alive.

48    However the difficulty Mr Trotta now faces in persuading the Court to grant him leave to pursue the allegations he made to the Commission on his father’s behalf is that in his own affidavit in support he disowns the premise of the most serious of the complaints he had earlier made. Mr Trotta has deposed to the effect that he no longer seeks to contend that the Respondents murdered his father—rather he now believes the truth to be that the Respondents only pretended to murder his father in order to cause him maximum psychological and emotional trauma.

49    In the affidavit Mr Trotta has filed in support of his being granted leave to pursue his application dated 17 May 2021 he deposes that:

10.    I do not NOT believe that my father was "murdered" in Northern Hospital, but that Dr Bach, Dr Duong and Dr Rusheesh aka Dr Warrior; pretended to "murder" him to cause me maximum psychological and emotional trauma. - Amounting to unlawful Disability Discrimination, outraging public decency. (And “Involuntary Euthanasia” needs to be considered, in the context of Age and Disability Discrimination.)

50    There would be substantial if not insuperable difficulties in disentangling what remains of his complaints arising out of his case of age discrimination as might lawfully be the subject of judicial determination. It will be recalled that s 46PO(3) of the AHRCA confines that which may be pursued in an application to the Court to those arising out of the complaints which have been terminated. Where the underlying premise of those complaints—inter alia that having regard to his father’s advanced age the Respondent doctors made threats to kill his father; that a secret decision was made to withdraw life sustaining treatment from his father; that they had already decided to murder him even before the ambulance arrived to collect him—are no longer to be pressed, the case for leave to agitate fringe issues such as a contention that one of the treating doctors was drunk and mentally impaired, particularly in light of its inherent improbability, becomes difficult to discern.

51    Moreover there would be profound difficulties having regard to materials before the Court and Mr Trotta’s inconsistent reporting in it accepting even the basic framework of the Applicant’s case. It will be recalled that in the first e-mail Mr Trotta sent to the Commission on 25 December 2019: that which initiated his complaints he asserted that prior to his father’s admission to hospital “[His] father, Elino Trotta, was a happy elderly man with no illness”. In his e-mail of 2 January 2020 he confirms as his “main point” that prior to his father’s admission, his father “was a healthy 99yo”. In a second e-mail of the same date he refers to his having been taken to the hospital only for a “check-up” following his fall from a chair.

52    Even Mr Trotta’s own e-mails are inconsistent with that premise. His second e-mail of 2 January 2020 acknowledges that his father had a lung infection. His e-mail of 10 January 2020 states that his father had said to the Ambulance Officers “that he was having heart attack and wanted treatment”.

53    His claims that his father was denied all treatment is inconsistent with his acknowledgment that after his admission on 25 October 2019 his father’s “lung infection responded well to oxygen therapy” and the reference in his e-mail of 9 January 2019 to one of the staff having stated “we’ve given maximum amount antibiotics.”

54    That Mr Trotta initially was not significantly concerned about the treatment his father was getting following his admission to hospital is reinforced by his conduct in not visiting his father until two days later.

55    However there is no doubt that Mr Trotta and hospital staff then confronted each other with very different objectives at the end of life point shortly after Mr Trotta visited his father on 27 October 2019.

56    Mr Trotta’s e-mail of 29 December 2019 to the Commission states that

Sunday afternoon 27/10/2019, my father suddenly and unexpectedly stopped breathing in front of me. I immediately called for CPR resuscitation, but staff started dancing around in a circle, they refused to do CPR in accordance with my father's written ADVANCED CARE PLAN/DIRECTIVE…

57    Putting aside the reference to the hospital staff “dancing around in a circle”, that summary appears uncontentious—as is equally that Mr Trotta then had attempted to effect a form of CPR on his non-breathing father which the hospital’s medical staff were refusing to provide.

58    I turn to that issue with the benefit of materials now before the Court which were not available to the Commission.

59    In an affidavit dated 31 May 2021 filed on behalf of the Respondents opposing leave being granted, Mr Laufer annexes as RL-5 a copy of Coroner Peterson’s decision not to hold an Inquest into Mr Trotta’s father’s death. The Coroner’s published reasons are plainly material to whether leave should be granted to permit Mr Trotta’s allegations to be advanced as he has sought.

60    The Coroner recorded (I infer on the basis of hospital records);

3.     On admission to Northern Hospital Elino was short of breath and hypoxic. Hospital records reveal that his condition was attributed to heart failure. Elino received oxygen therapy and intravenous antibiotics.

4.     During his stay in hospital Elino suffered another fall, striking his right temple. The hospital conducted an CT brain scan after the fall. The CT scan showed no acute intracranial pathology.

5.     Tests conducted at Northern Hospital showed that Elina had developed pneumonia for which he was initially treated with antibiotics. Elino was also in fluid overload, and he had begun to show increasing confusion. Elino's family was told at that time that Elina was very unwell and it was possible he would not survive. The family requested that Elino receive CPR should it be required, however the treating doctor explained that given the progression of Elino's condition, CPR would be ineffective for him and traumatic. Hospital staff explained that Elino was receiving all possible treatment for his pneumonia. This record of the conversation with the family has formed a critical part of my decision making in this matter.

6.     On 27 October 2019 at approximately 5.30pm the Medical Emergency Team (MET) received a call to Elino on the ward where he was admitted. When the MET arrived, the Applicant was found to be perfo1ming CPR on Elino. Dr Warrior attended to Elino assessed his condition and confirmed his passing. Dr Warrior explained the situation to the Applicant and called for assistance for the Applicant to help him deal with his significant grief.

61    The Coroner records that a short time later Mr Trotta had made contact with the Coroner’s Court of Victoria to make serious allegations concerning his father’s care and treatment. Having regard to those allegations the Coroner ordered Mr Elino Trotta’s body be the subject of an autopsy. The Coroner’s report continues:

10.    On 14 November 2019 Dr Heinrich Bouwer, a forensic pathologist, performed an autopsy and Post Mortem CT scan on the body of Elino Trotta. Dr Bouwer made several findings including that Elino was suffering from:

i.    Bronchitis and pneumonia;

ii.    Lung cancer (not diagnosed in life);

iii.    Severe cardiovascular disease including an enlarged heart, severe triple vessel coronary artery atherosclerosis; and

iv.    Severely scarred, shrunken kidneys…

 …

12.    The cause of death was found to be l(a) Bronchopneumonia and ischaemic heart disease in a man with lung carcinoma.

62    The Coroner then turns to the conflict between Mr Trotta’s wishes that his father be provided with CPR and the medical decisions that were taken by the hospital and its staff at the time:

48.     With respect to the non-performance of CPR, there is an advance directive dated 2015, signed by Elino Trotta, that indicated he wished for all resuscitative efforts. There are several more recent documents regarding Goals of Care, the most relevant of which_ is the dated I 6 September 2019 signed by Dr Holbeach, Consultant Geriatrician. The document includes that the goals of care were for all medical treatments but not for CPR or intubation. Dr Holbeach explained his rationale behind the document. Dr Holbeach' s diagnosis of advanced age and frailty indicated he considered that, independent of the cause of a cardiorespiratory arrest, Mr Trotta's underlying conditions would not respond to CPR.

49.     As indicated above, the role of CPR is to maintain circulation until the cause of the arrest can be reversed. Cardio-respiratory arrest from infection such as pneumonia and the other conditions from which Mr Trotta suffered, is not reversible, and CPR would be futile.

Conclusion

50.     Mr Trotta's treating team decided to not undertake CPR when the MET call was made and Elino was assessed. The treating doctors were aware of the Applicant's wishes, the Advanced Care Directive and other relevant documents and information. I am satisfied that CPR was withheld on the basis of a careful consideration of Mr Trotta's current and past conditions and prognosis and that in all of the circumstances this decision was appropriate.

51.     I find that the medical care provided to Mr Trotta .for the management of his medical conditions was timely and appropriate and the decision not to perform CPR was a reasonable clinical decision, albeit understandably distressing for the Applicant.

63    The Coroner then made specific findings in relation to the issues which had been raised by Mr Trotta as follows:

58.     In relation to the following issues raised by the Applicant:

(i)     Elino Trotta was murdered;

There is no evidence of criminal conduct on the part of the treating personnel that had responsibility for the care and management of Elino Trotta.

(ii)     Witnesses are needed to give evidence into the circumstances of Elino’s death;

I consider that the information I have reviewed is sufficient in the circumstances to enable me to discharge my statutory obligations pursuant to s 67 of the Coroners Act.

(iii)     Euthanasia had been secretly perpetrated by several doctors at Northern Hospital;

There is no evidence of criminal conduct on the part of the treating personnel that had responsibility for the care and management of Elino Trotta.

(iv)     Doctors refused to comply with Elino’s Advanced Care Plan

I note that the Advanced Care Plan signed by Elino Trotta was in conflict with the Goals of Treatment document signed by Dr Holbeach and this was acknowledged by the Northern Hospital, however for the reasons enumerated in this decision I consider it was reasonable for the personnel at Northern Hospital to not follow the Advanced Care Plan by not commencing CPR in the circumstances.

(v)     The circumstances around Elino’s death are unclear;

I do not consider there are any circumstances surrounding the death of Elina Trotta that are unclear to me or which require further examination in an inquest.

64    I acknowledge that the findings of the Coroner would not be binding on this Court in any proceeding that Mr Trotta might be given leave to bring but it is implausible that I should give those findings and the Coroner’s reasons only little weight on the question of leave.

65    In my view, notwithstanding the decision was distressing to Mr Trotta, there is no sound basis to allow a hearing of a complaint based on age discrimination by reason of the non-provision of CPR in circumstances where that decision was based on a clinical assessment that to do so would be futile, and after the Coroner has accepted that CPR was withheld on the basis of a careful consideration of Mr Elino Trotta’s current and past conditions and prognosis and that in all of the circumstances the decision had been appropriate.

66    I reject that such an end of life decision where CPR would be futile itself stands as proof of age discrimination. A similar inherently distressing clinical decision might be reached with respect to the life of a baby, or a child or the loved partner of anyone—notwithstanding the insistence of their grieving parent or partner that further efforts be made.

67    Finally, I should indicate that I am satisfied there is no basis to grant leave to consider Mr Trotta’s claim of racial discrimination on the basis that his father was denied an Italian interpreter—as the Commission noted there is no evidence of that ever having been requested—and it is not made good by Mr Trotta’s reference to his father having lapsed into speaking Italian in the precious last 20 minutes he had had with him before his father had stopped breathing.

Complaints on own behalf

68    As noted the affidavit Mr Trotta has filed in support of his being granted leave to pursue his complaints includes the following:

10.    I do not NOT believe that my father was "murdered" in Northern Hospital, but that Dr Bach, Dr Duong and Dr Rusheesh aka Dr Warrior; pretended to "murder" him to cause me maximum psychological and emotional trauma. - Amounting to unlawful Disability Discrimination, outraging public decency. (And “Involuntary Euthanasia” needs to be considered, in the context of Age and Disability Discrimination.)

69    That of course was not what he had contended in his complaints to the Commission. The Commission accurately summarised Mr Trotta’s complaints as having involved the following contentions:

…Your allegations include that doctors made threats to kill your father; that a secret decision was made to withdraw life sustaining treatment; that it already decided to murder your father even before the ambulance arrived at your home to collect him; that your father was involuntarily euthanised; and that a doctor treating your father was drunk and mentally impaired.

70    Mr Trotta’s complaint on his own account is only cognisable in this Court if the unlawful discrimination he now alleges arises out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint within the meaning of s 46PO(3) of the AHRCA. I reject that it does, but even assuming the contrary, I am satisfied leave should not be granted.

71    Whilst disowning an allegation of actual murder, Mr Trotta’s new allegation of an asserted a plot by the Respondents (or some of them) which was designed to cause Mr Trotta maximum psychological and emotional trauma by pretending to murder his father nonetheless involves propositions of the utmost seriousness. The standard of proof of such a serious contention is the ordinary civil standard but as Dixon J noted in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362;

…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to whether the issue has been proved to the reasonable satisfaction of the tribunal…

72    I have examined Mr Trotta’s complaints as he made to the Commission. I can identify nothing as would plausibly support the case he now seeks to advance: i.e. that rather than the Respondents having been determined from the outset to end his father’s life (actively or by wilful refusal to provide necessary medical care) as he alleged to the Commission, the Respondents were instead motivated to cause him himself maximum psychological and emotional trauma–because of his disabilities–by “pretending to ‘murder’” his father.

73    Section 3 of the AHRCA defines what is meant by unlawful discrimination as follows:

unlawful discrimination means any acts, omissions or practices that are unlawful under:

(aa)    Part 4 of the Age Discrimination Act 2004; or

(a)    Part 2 of the Disability Discrimination Act 1992; or

(b)    Part II or IIA of the Racial Discrimination Act 1975; or

(c)    Part II of the Sex Discrimination Act 1984;

74    The only possible link to unlawful discrimination in those facts requires acceptance of the unarticulated proposition that the conduct Mr Trotta alleges was undertaken because of his disabilities and therefore was contrary to the provisions of the DDA.

75    The logic of such reasoning (notwithstanding that in this instance the link was never expressly articulated) might serve as a sufficient basis for a grant of leave notwithstanding the inherent unlikelihood of the Respondent medical practitioners and hospital staff having such a motivation if the Court was satisfied of the existence of plausible basis for allowing that contention to be advanced but such a case is not this case. This case involves the Applicant, after the proceedings in the Commission have finalised, seeking to recast his prior complaints of serious unlawful discrimination which he had earlier advanced on behalf of his father on the basis of age discrimination into a new, never previously articulated case that the conduct he complained of was designed to cause him harm. A sufficient basis to impute such different motivation is entirely absent—and nothing as might serve as such a basis has been foreshadowed.

76    Mr Trotta’s prior references to such possible motivation were expressed in an entirely different context and were noted in the President’s termination decision. In respect of his complaints regarding the DDA the President recorded the following findings:

I appreciate you disagree with what appears to be a medical decision by Dr Holbeach in the weeks prior to your father's treatment and death at Northern Hospital on 25, 26 and 27 October 2019. However, in relation to Dr Holbeach's medical assessment of your father, I consider that there is insufficient information to support a reasonably arguable claim of unlawful discrimination or victimisation against Dr Holbeach in relation to you your father under the ADA or ODA and accordingly, Dr Holbeach has not been considered or progressed as a respondent.

I also consider that there is insufficient information to support a reasonably arguable claim of unlawful discrimination or victimisation under the ADA or DOA in relation to your concerns about Northern Health staff members allegedly imputing you with a false diagnosis of schizophrenia, so this issue is not being considered or progressed as part of your complaint.

77    There is nothing put before the Court to suggest that that a different conclusion might be arrived at after a hearing if leave to make an application is granted. While Mr Trotta alleges that Dr Holbeach held secret and political meetings with other doctors and had circulated documents which erroneously referred to him as having been diagnosed with schizophrenia—no such document has been shown to exist nor has the basis for his allegations of such secret meetings been identified.

Conclusion

78    As Mortimer J concluded in James the statutory requirement that leave be obtained in cases which have been relevantly terminated by the Commission is intended to operate as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding. That analysis applied to the facts of this case requires the conclusion that Mr Trotta’s complaints both in so far as they are sought to be advanced on his own account and on his father’s behalf, even having regard to the relatively low bar that must be cleared, have insufficient prospects of success as to justify a grant of leave.

79    I conclude, although I accept it is unlikely to be of little comfort to Mr Trotta that I accept that he and his father had communicated to the hospital their shared deeply held desire that even if clinically reasonable judgments had been made to the effect that it would be futile to provide his father with further treatment the hospital and its staff were obliged to provide it—at least until no possible signs of life remained. That however was not their obligation and there can be no benefit in permitting this proceeding to be further maintained on that premise.

80    I decline to grant leave.

81    I need not further consider the issues relating to whether an extension of time should be granted. Having regard to my reasoning above that issue has become moot.

Costs

82    The discretionary power conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is unfettered, save that it must be exercised judicially. In George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 however it was established that the judicial exercise of the Court’s discretion will ordinarily be in favour of a successful party.

83    The circumstances in which this matter has come before the Court are such that it is inevitable that I should order costs to follow the event. However such costs as are awarded rarely amount to a full indemnity. None in this instance can be awarded in respect of the many other forums in which there has been controversy between the parties preceding or overlapping with this application.

84    In my view there is considerable merit in not further prolonging this unhappy matter. The costs incurred by the Respondents as confined to this proceeding in my estimation cannot be large. The respondents were represented by counsel for a short case management hearing held on 16 April 2021 but otherwise the materials which have been filed on their behalf in writing have been filed by their solicitor on the record Mr Laufer. Mr Laufer is the Chief Legal Officer of the First Respondent, Northern Health. Mr Laufer also represented the Second, Third and Fourth Respondents. I do not understand those respondents to have incurred any personal costs in this proceeding.

85    In my opinion the interests of justice would be advanced if I was to order costs on a lump sum basis. In identifying an appropriate amount I take into account that counsel had limited involvement and that much of the material that the respondents refer to or include in their written materials was not specific to this proceeding. It drew on materials the respondents had had to provide in other fora having regard wider history of this matter.

86    I anticipate for that reason that the time involved on the part of Mr Laufer would have been considerably less than would have otherwise been the case. I accept that that sum I propose to award is likely to be less, perhaps significantly less, than might be awarded to the respondents on a taxation but doing so will bring finality to a matter which would only otherwise be prolonged to the detriment of all concerned.

87    I will award the First Respondent its costs in a lump sum of $3,000.00 for this matter.

Associate:

Dated:    24 June 2021

SCHEDULE OF PARTIES