Federal Court of Australia

Deam v Starlight Children’s Foundation Australia [2023] FCA 259

ORDERS

THE COURT ORDERS THAT:

1.    Leave to commence a proceeding under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) be refused.

2.    The interlocutory application filed by the applicant on 28 October 2022 be dismissed.

3.    The proceeding be dismissed.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The present proceeding was commenced in August 2022. In her amended originating application, the applicant, Ms Lara Deam, alleges contraventions of ss 340 and 351 of the Fair Work Act 2009 (Cth). Ms Deam then filed an interlocutory application (IA) on 28 October 2022 seeking leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) to bring a claim under the Disability Discrimination Act 1992 (Cth), and to have it heard and determined together with the current proceeding. I shall describe this as the Deam IA in these reasons.

2    As well as the Deam IA, there are three further IAs before the Court in this proceeding. Before I describe the remaining three IAs, it is necessary to set out some of the background to the proceeding.

Background

3    Ms Deam’s complaints arise from some tragic events in which she was involved while working at the Royal Children’s Hospital, the second respondent in these proceedings. Those events occurred on 5 August 2019. As part of the material before the Court on the Deam IA, Ms Deam’s solicitor annexed to his affidavit a proposed statement of claim, which Ms Deam will seek to rely on if leave is granted under the AHRC Act, and if her FWA claim proceeds. It was helpful to have this proposed pleading, all parties referred to it, and I use it at points in these reasons to understand Ms Deam’s claims.

4    Ms Deam is a trained actor. Ms Deam alleges (and it is not disputed) that she has worked as a casual and part-time employee for the first respondent, the Starlight Children’s Foundation Australia, since October 2016. She returned to working in a casual capacity with Starlight in May 2019. In her employment she performed the role of a “Captain Starlight”. Broadly, the Captain Starlight program is delivered in hospitals to sick children to improve their wellbeing while they are receiving medical treatment. In her role, Ms Deam performed to children as different characters. Some aspects of the Captain Starlight program are delivered in a room at the participating hospitals called the “Starlight Express Room”.

5    While the SERs are all within the premises of the hospitals that participate in the program, there is some dispute between the parties about how much, if any, control the hospitals have over what is done in the rooms during the Captain Starlight sessions. It is however agreed that the objective of the program is to provide enjoyable activities and entertainment to inpatient children at the participating hospitals. The activities are provided by both volunteers and the Captain Starlights employed by Starlight. The SER is described in the affidavit material relied on by Starlight in the following way:

SERs are visited by sick children and their families when they are needing a break from medical treatment and procedures while staying in hospital or attending appointments e.g. outpatients clinics. The activities in the SERs are facilitated by Captain Starlights who deliver entertainment and distraction through performance, creative projects, gaming, play and fun.

6    In her second affidavit at [17], Ms Joanne Dann, National Program Manager for Starlight, described the SERs a little more, including what medical assistance was available when children were in the rooms participating in the programs:

In my Affidavit at paragraph 7 I stated that the SER is a medical-free room. By this, I meant that no medical treatment is administered in the SER except in the case of a medical emergency. Children can be, and at times are, accompanied by nursing staff when they attend the SER and there is no restriction on nursing staff being present in the room. In the case of a medical emergency, the Captain Starlights are required to call the emergency number to provide the Emergency Colour Code, depending on the scenario, as outlined on page 50 of annexure “PW-15” of Mr Will’s Affidavit.

7    On 5 August 2019, Ms Deam agreed to take a Captain Starlight shift at the RCH. She had only previously worked one half day at the RCH. Usually she worked at the Monash Children’s Hospital SER.

8    What follows is my summary of Ms Deam’s account of what occurred during that shift, drawn from her Australian Human Rights Commission complaint, annexed to the affidavit of Mr Will dated 28 October 2022. I accept there may be differences in the evidence at trial, and I give this narrative so as to put the context of her DDA claim, and of the respondents’ arguments.

9    On 5 August 2019, Ms Deam’s manager had to leave to attend a meeting, and while her manager was away, a young boy, perhaps around 14 months old, came into the SER at around 11am. The child suffered from a heart condition which required that he be attached to a specialised machine.

10    Ms Deam was playing with the child when at one point she looked down and realised she was covered in a large amount blood, which she realised was coming from the chest of the child.

11    The child’s father began to apply pressure to the child’s chest, and shouted at Ms Deam to assist. Ms Deam shouted to her colleague, Mr Snow, “What’s the number for Code Blue?”, code blue being the code for a medical emergency at Monash. Mr Snow replied “777”. Ms Deam rushed to the Control Room within the SER and dialled 777. When the operator asked Ms Deam, “Where in the hospital are you?”, Ms Deam realised that she was unfamiliar with the layout of the RCH. She replied, “We are on the ground floor in the Starlight Express Room.”

12    The child’s father, whilst performing CPR, asked Ms Deam why it was taking so long for the medical team to arrive. Ms Deam dialled 777 two further times. Once the medical staff arrived, Ms Deam and Mr Snow removed the remaining families from the SER.

13    Ms Deam’s manager and another colleague then sat with Ms Deam for one hour, realising that she was in shock. It was then suggested to Ms Deam that she go home. Ms Deam left the RCH at 1pm.

14    The child died the following day. The Court was informed the death was reported to the coroner and was investigated by the coroner, but there was no inquest in relation to the death.

15    Ms Deam was subsequently diagnosed with post-traumatic stress disorder (PTSD) on around 1 October 2019, and her WorkCover claim was accepted shortly thereafter. It is this disability which forms the basis of her DDA complaint for direct discrimination.

16    Ms Deam’s FWA proceeding is an adverse action claim. It is based around a number of complaints made by Ms Deam before and after the August 2019 incident, in which she complained that Captain Starlights had inadequate emergency and first aid training, that there was inadequate emergency assistance available from the hospitals, including at the August 2019 incident, and that she should have access to specialist trauma counselling. She contends she was denied the kind of training and assistance which were the subject of her complaints and this constituted adverse action within the terms of s 342 of the FWA.

17    Ms Deam also alleges that Starlight failed to provide her with appropriate psychological support, and this constituted adverse action within the terms of s 342 of the FWA. Thirdly, she also claims that Starlight’s failure to improve its training or procedures to address all the matters she had raised constituted adverse action within the terms of s 342 of the FWA.

18    Finally, Ms Deam alleges that Starlight took adverse action against her because of her disability, being her PTSD. The adverse action is alleged to be the failures I have set out at [16] and [17] above.

19    In her FWA application, Ms Deam seeks a range of relief including declarations, compensation and penalties, to be made payable to Ms Deam. It is important to note that all of the adverse action claims do not involve allegations of adverse action by termination of Ms Deam’s employment. Rather, the adverse action is restricted to items 1(b)-(d) of the table in s 342 – namely, injury in employment, altering the position of an employee in their employment, and discrimination. The material reveals that Ms Deam has received WorkCover payments related to the August 2019 event.

The DDA claims which are the subject of the Deam IA

20    Ms Deam’s direct discrimination complaint also broadly concerns how she was treated by Starlight after the August 2019 event. It also concerns the alleged failures of both the RCH and Monash in properly training and preparing Ms Deam for such emergencies.

21    Her DDA complaint covers a period from 5 August 2019 up to her resignation on 28 May 2021. In her resignation letter, Ms Deam said:

I still feel let down by the initial lack of proper counselling and support after the incident and inadequate changes implemented since I’ve returned, such as changes to protocols in regards to safety and increased training for Captains. Continuing to work in this role where I feel hyper-vigilant for everyones [sic] safety exhausts me and it is unfortunately taking a toll on my home life, relationships, sleep and general self confidence. Also, some of the lack of reforms and being with children who remind me of the incident are still triggering for me and because of this myself and my health professionals believe it is in my best interest, and necessary for further recovery, for me to step into an alternative career.

22    In her proposed statement of claim at [52], Ms Deam alleges that Starlight was required to, but did not, make the following reasonable adjustments for her:

a.    the provision of high quality tailored psychological support, including     specialised trauma counselling; and

b.    the provision of ongoing HR advice and support … .

23    Ms Deam makes a claim of indirect disability discrimination. She alleges that all those required to perform the role of Captain Starlight were required to comply with a condition or requirement of the kind I set out below, in circumstances “that allowed” the fatal emergency to occur.

24    Ms Deam makes a second claim of indirect discrimination. This claim is not made on her own behalf but on behalf of children “with a medical condition that may require urgent assistance” whom she alleges were required by Starlight to comply with a condition that:

to access the Starlight Services, they must do so without the assistance of persons trained to respond in an emergency.

25    It is contended the children could not comply with this condition and so were treated less favourably by Starlight because they experienced a high risk of adverse events occurring while they were in the SER. The pleaded example relates to what Ms Deam alleges was a leaking treatment bag used by one of the children attending the SER at Monash. I note the factual narrative about this event is disputed by Monash, whose incident report provides that there was no leaking bag and the child had in fact urinated.

26    As well as compensation, Ms Deam seeks:

(a)    that the Respondents reform their training of Captain Starlights so that such training is mandatory and hospital-specific; and

(b)    updated procedures and protocols in the SERs.

The Deam IA

27    Ms Deam seeks leave under s 46PO(3A)(a) of the AHRC Act to bring a complaint in this Court alleging unlawful discrimination in her employment contrary to the DDA. Leave is required because Ms Deam’s AHRC complaint was terminated under s 46PH(1)(c) of the AHRC Act, namely that continuation of an inquiry was not warranted. She seeks to have this claim joined with the present FWA proceeding.

Starlight’s IA

28    Starlight seeks orders that Ms Deam’s FWA claims against Starlight be summarily dismissed, or relief to similar effect. The basis for Starlight’s IA is that Ms Deam’s claims are in substance general protections claims within the scope of Ch 3 of the FWA. It contends that s 734 of the FWA prohibits the making of a general protections claim in this Court in Ms Deam’s circumstances. Section 734 provides:

(1) A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if:

(a) an application or complaint under an anti-discrimination law has been made by, or on behalf of, the person in relation to the conduct; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

29    The phrase “general protections court application” is defined in s 368(4) of the FWA:

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

30    Starlight contends Ms Deam’s FWA application to this Court is made pursuant to s 539 of the FWA, is an application under Div 2 of Pt 4-1, and is an application for orders in relation to alleged contraventions of Pt 3-1 of the FWA.

31    Starlight contends that Ms Deam’s application for relief is concerned with alleged adverse action that does not involve dismissal, and therefore that she has made “a general protections court application in relation to conduct that does not involve the dismissal of the person” within the meaning of s 734(1) of the FWA. Starlight submits that Ms Deam’s application satisfies limb s 734(1)(a), as her DDA claim was made under “anti-discrimination law” – being the AHRC Act and the DDA, to the AHRC. In its submission, Ms Deam’s DDA complaint to the AHRC related to substantially the same impugned conduct as in her FWA application, as does her application for leave to commence a proceeding under the DDA in this Court. Starlight contends that s 734(1)(b) is satisfied as Ms Deam’s DDA claim has not been withdrawn or failed for want of jurisdiction; rather, it was terminated pursuant to s 46PH(1)(c) of the AHRC Act. Therefore, Starlight contends that this Court lacks jurisdiction to hear the general protections court application.

32    Inherent in this application is a recognition that if Ms Deam did not need to seek leave under the AHRC Act, she could have brought her DDA claim in this Court. However, because of the power exercised to terminate the complaint by the AHRC delegate, Ms Deam does need leave. Starlight opposes leave being granted.

33    The ultimate effect of Starlight’s overall position is that it seeks to prevent Ms Deam from bringing any claim against it in this Court.

RCH and Monash IAs

34    In the affidavit of Mr Will dated 22 December 2022, Mr Will deposes he has instructions that Ms Deam no longer presses her claim for relief under the FWA against the RCH and Monash.

35    The RCH and Monash therefore confined their submissions to, and only sought to be heard on, Ms Deam’s IA, being the matter of whether the Court should grant leave to Ms Deam to pursue her DDA claim against them in this Court. Both the RCH and Monash opposed the grant of leave.

Resolution

36    Starlight’s IA is put as an application under s 31A of the Federal Court of Australia Act 1976 (Cth) for summary dismissal. In determining whether Ms Deam’s application has no reasonable prospects of success, what must be assessed is the prospects of Ms Deam succeeding at trial, on the assumption that she will prove the material facts she alleges: see Knowles v Commonwealth [2022] FCA 741 at [32]; see also Webster v Lampard [1993] HCA 57; 177 CLR 598 at 604.

37    In my opinion, Ms Deam’s application for leave to bring a proceeding under s 46PO(1) should be dismissed. Starlight is correct that the circumstances before the Court engage s 734 of the FWA, and therefore Ms Deam’s FWA claims have no reasonable prospects of success. The Starlight IA should be upheld. I turn to explain my reasons for those conclusions.

38    I commence with the Deam IA, because the respondents all recognised that even if Starlight is correct on its IA, the effect of s 734 is to recognise the DDA complaint as the one which is permitted (if leave were to be granted) to go forward in the present circumstances.

The Deam IA

39    In James v WorkPower Inc [2018] FCA 2083, I set out my understanding of the correct approach to the grant of leave under the AHRC Act, at [31]-[32] and [37]-[38]:

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.

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.

…

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.

There may be a range of other permissible considerations including:

(1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8) other factors that are often considered in leave applications – such as prejudice to a party.

40    There are now a number of authorities of this Court which have considered the correct approach to the grant of leave: see, eg, Praljak v Commonwealth [2022] FCA 1438 at [8] (McEvoy J); Chircop v Technical and Further Education Commission [2022] FCA 1015 at [104] (Katzmann J); Trotta v Northern Health [2021] FCA 668 at [43]-[45] (Kerr J); Owen v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2020] FCA 1826 at [20]-[23] (McKerracher J); Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86] and [93] (Abraham J); Jones v Westpac Banking Corporation [2020] FCA 238 at [66]-[73] (Kerr J); Budini v Sunnyfield [2019] FCA 2164 at [52] (Charlesworth J); Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 at [14] (Steward J). I am satisfied the approach I take here is consistent with those authorities.

41    The Court must undertake an assessment of the merits of the claim in order to determine if it has sufficient prospects of success. In doing so, it is generally appropriate to proceed on the basis that an applicant will be able to prove the allegations of primary fact made in the claim, unless there is material before the Court which suggests they are unlikely to be proven – for example, because of what is contained in the responses of any respondents at the AHRC stage. It may be the case that the respondents have clearly identified inaccuracies or flaws in an applicant’s case which should, even at this stage of a preliminary assessment, weigh against the grant of leave.

42    I respectfully agree with the statement of Abraham J in that it would be contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit: Matthews v Markos [2019] FCA 1827 at [37].

The broad indirect discrimination claim

43    This is the claim which is put against all three respondents. It is the only claim put against Monash and the RCH.

Does the claim fall within the terms of the AHRC complaint?

44    In order to satisfy s 46PO(3) of the AHRC Act, the unlawful discrimination alleged in Ms Deam’s application to this Court:

(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.

45    Referring to Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450 at [19] (Emmett, Lander and Tracey JJ), Monash submitted that the “central pillars” of the applicant’s proposed claim did not form part of her original complaint to the AHRC. Starlight made no submissions on the issue, and the RCH conceded that the proposed claim against them was the same in substance as the applicant’s complaint to the AHRC.

46    I am satisfied that the proposed claim is in substance the same as the one made before the AHRC. In her complaint to the AHRC, Ms Deam contended for the same three kinds of disability discrimination as she has pleaded in the proposed statement of claim. While the wording may vary, the substantive allegations are of the same kind. In engaging in the comparison required to determine that the Court has jurisdiction under s 46PO of the AHRC Act, no technical approach should be taken. The language in s 46PO(3)(a) is the “same in substance”. That language requires a practical focus on the core parts of an AHRC complaint. A fair reading of Ms Deam’s complaint to the AHRC indicates that it is in substance the same complaint she seeks to make by leave in this proceeding.

47    I turn now to the issue of which if any of her three complaints of unlawful discrimination have sufficient prospects of success to warrant the grant of leave to proceed.

The broad indirect discrimination claim has insufficient prospects of success

48    While appreciating that the indirect discrimination claim in respect of children with a disability was a somewhat ambitious claim, counsel for Ms Deam contended she has a sufficient interest to have standing to make such a claim against each of the respondents, in relation to their organisation of and participation in the Starlight program. Counsel pointed to s 46P(2)(a)(i) of the AHRC Act which enables a person aggrieved by the acts of the respondents to bring a claim. He submitted:

Ms Deam has a deeply personal interest in the subject matter of this aspect of the Disability Discrimination Claim which is greater than that of an ordinary member of the public. It is submitted that she is a person relevantly “aggrieved”. Although arguably “novel” the claim is – at least – reasonably arguable and not fanciful and should be heard and determined by this Court.

(Footnotes omitted.)

49    None of the respondents doubted Ms Deam felt a genuine concern for the children who came into the SER, and after the August 2019 incident. Her concern can be accepted. However, as the respondents submitted, the question whether a person is aggrieved is an objective one, and a feeling of being aggrieved is not sufficient. Ms Deam is not in any sufficiently special or different relationship with the children who come into the SER. And aside from the one incident, she has pleaded no material facts that could give rise to finding that she has some interest over and above any other person employed to work in a hospital who must interact with, or provide services to, children having treatment in that hospital. That is in substance a point made by the RCH in its written submissions at [22] and I accept it.

50    On the one incident that is pleaded (against Monash), assuming that could independently be described as an act of discrimination under this cause of action, Monash made the following submissions (at [31]-[32] of its written submissions):

First, the comprehensive report created by MCH at the time details that there was no leak in the child’s bag. Rather, the child’s pants were slightly soiled from urine and there was a large patch of urine on the ground. As a result, the MCH SER was shut down and cleaned. There was no harm as a result of the event, no treatment was required, and there were no associated risks involved with the event. It cannot be seriously alleged that the applicant is aggrieved, through an act of indirect discrimination sounding in a statutory cause of action, as a result of a child urinating in their pants.

Second, the “act” that is proposed to be alleged is not discriminatory. The applicant proposes to allege that she was aggrieved as a result of witnessing a leak on the floor. That is not an “act” that could be attributed to MCH (let alone an unlawful one), nor is it an “act” that would have been prevented by the presence of persons trained to respond in an emergency (which is alleged to be a discriminatory condition). Indeed, the applicant does not even propose to allege that the “act” was an emergency – the highpoint of the applicant’s proposed allegation is that it was a “medical episode” (which it was not).

(Original emphasis; footnotes omitted.)

51    I accept those submissions. Independently from the standing question, which I have decided adversely to Ms Deam, these submissions provide two further bases why it is not appropriate to grant leave in relation to this complaint.

52    The RCH and Monash both made a number of other submissions concerning why each hospital was not involved in the provision of any services to sick children through the Captain Starlight program, even though their premises were being used for the SERs. In oral argument, counsel for the RCH accepted that the RCH Medical Emergency Team were available to attend the SER, as they would any other room on RCH premises where a child who was being treated as an inpatient and had been released from the ward might be. I infer the same is true for Monash. Since I have found there are other bases why this complaint has insufficient prospects of success to warrant the grant of leave, especially because of the standing question, it is not necessary for me to deal with those additional arguments by Monash and the RCH.

Ms Deam’s personal indirect discrimination claim

53    This claim, and the direct discrimination claim, are only brought against Starlight.

54    The indirect discrimination claim can be found at [58]-[62] of the proposed statement of claim. The condition with which Ms Deam alleges she and other Captain Starlights were required to comply was that they perform the role of Captain Starlight without the assistance of persons trained to respond in an emergency, in substance working under the same circumstances as Ms Deam was working when the August 2019 event occurred.

55    It is alleged that Ms Deam, with her disability of PTSD (see [19] of the proposed statement of claim) could not comply with this condition, although other Captain Starlights employed by Starlight could comply.

56    I consider this claim as pleaded has insufficient prospects to warrant the grant of leave. One problem identified by the AHRC in its reasons was that the condition said to be imposed is in reality a condition imposed only on Ms Deam, because it arises from the alleged deficiencies or inaction in relation to Ms Deam’s particular circumstances, such as a lack of targeted trauma counselling for Captain Starlights involved in traumatic incidents. While in the proposed statement of claim, there has been an attempt to re-draft the condition (see [58] of the proposed statement of claim), in substance the pleaded allegations all have their origin in Ms Deam’s version of events from the August 2019 incident. This is not a claim of indirect discrimination of the kind set out in s 6 of the DDA.

57    Further, there are no material facts alleged about how the circumstances in the SERs are said to have manifested a working environment where there was insufficient access to trained emergency response. In the affidavit material adduced by both the RCH and Monash, the emergency response arrangements provided by each hospital are described.

58    Ms Bernadette O’Connor, Director of Allied Health at the RCH, deposes to the following emergency response arrangements at the RCH:

The RCH may access the SER to provide the cleaning and maintenance services referred to above, or, in an emergency event. Starlight must give RCH staff access to the SER if there is an emergency event.

…

During the time that I have been Director, Allied Health, assistance from people trained to respond in an emergency has been available in the SER in the event of an emergency.

RCH operates a Medical Emergency Team (MET) system in the event of an emergency. The MET system is a well-documented, well used procedure, where appropriate trained people respond in the event of an emergency. If a medical emergency is called, the MET will respond. There are two MET teams located in the hospital who respond in the event of an emergency, including in the SER. In terms of people response time, I do not believe that there is any difference if a MET is called on a ward or in the SER as the location of the MET determines which MET team responds. The response is not necessarily likely to be quicker on a ward because it depends on where the MET teams are in relation to the emergency event at the time the MET is called. There are levels of intervention or response expected from other persons present (not members of the MET team) in the event of an emergency. For example, if a physiotherapist is present in an emergency they are trained and able to administer oxygen if required. There is no expectation from reception staff that they will provide physical assistance – their responsibility is to ensure that the MET team has been called.

59    While Monash does not describe in detail its emergency response arrangements, the affidavit of Ms Beatrice Dito, Director of Clinical Operations and Director of Nursing at Monash, describes arrangements for emergency contacts in the SERs:

Unless there is a clinical reason or medical emergency, MCH staff do not attend in the Starlight Express Room (other for transporting children to and from the Starlight Express Room) as it is exclusively occupied and operated by Starlight for the purpose of providing entertainment and engagement activities.

…

In or around October 2021, the number to call in emergencies was changed to 2222 as part of a national strategy to use a standardised emergency number across all hospitals.

On 27 October 2021 I emailed all MCH Managers and MCH Partnership Managers (eg third parties such as Starlight) about the Department of Health introducing the 2222 emergency number across all Starlight Express Rooms in Victoria from 16 November 2021.

In or around October 2021, Monash Health also distributed posters to all MCH Managers and MCH Partnership Manager to be displayed in the Starlight Express Room's regarding the new 2222 emergency number.

The Applicant would also have been issued with a Monash Health lanyard in order to enter and move around MCH. Monash Health lanyards include details about the number to contact in the event of an emergency. The lanyards were updated to reflect the new emergency number to call.

…

There are also posters within the Starlight Express Room with details of the number to call in the case of an emergency.

60    A bare allegation that these arrangements were inadequate, relying it seems on nothing more than the occurrence of the August 2019 event, and/or possibly the factually contentious later event at Monash, is insufficient. Reliance on those two specific events, in particular without detailed factual pleadings about their circumstances, does not raise an arguable case that any condition was imposed on Ms Deam, or other Captain Starlights. While no doubt what is in the affidavit material of Monash and the RCH might be disputed by Ms Deam, there are no allegations of material fact pleaded at all, and so there is nothing but the bare assertion to measure in terms of prospects of success. In the face of the material, it is insufficient.

61    Further, there are no material facts which make good the allegation that it was because of Ms Deam’s PTSD that she could not comply with such a condition, even if it was imposed. Indeed, there are no material facts pleaded about over what period this condition was imposed and whether Ms Deam was attempting to return to work. What is pleaded at [22] is that she was paid but not required to work for the whole of August 2019. Therefore, if the alleged condition was imposed, it must logically be after this time. Ms Deam returned to work on 2 September 2019, then at [27], the proposed statement of claim alleges that on 6 September 2019, Ms Deam informed her employer she was not fit to work. There is no pleading that Ms Deam sought to return to work after this time and asked for particularised changes to the SER environment to be able to do so, even assuming in her favour at this time she was suffering from PTSD. Ms Deam filed a WorkCover claim only a few days later, and was off work until May 2020.

62    What is then pleaded is that from about May 2020, Ms Deam was performing administrative duties at home. Clearly on her own case, even by this point, nine months after the August 2019 event, Ms Deam was not proposing to work in the SER environment, and therefore the alleged inaction was not being imposed on her.

63    It is not until December 2020 that the proposed statement of claim alleges Ms Deam returned to work as a Captain Starlight, and it was later in this month that the second event occurred at the Monash SER. There are then no pleadings of material fact about what occurred after December 2020, whether Ms Deam continued to work as a Captain Starlight at any hospital, what the level of her alleged PTSD was by this stage, and how if at all it meant she could not perform her duties in a SER.

64    Leave should be refused for this claim.

Ms Deam’s direct discrimination claim

65    Starlight makes two principal submissions opposing leave in relation to this claim.

66    It relies firstly on Ms Deam’s status as a casual employee and contends the pleaded adjustments to accommodate her disability such as “ongoing HR advice and support” do not constitute an “adjustment” (or modification) for the purposes of s 4 of the DDA and cannot ground a finding of breach of s 15(2)(b) of the DDA. Starlight also submits Ms Deam admits that it accepted liability in respect of Ms Deam’s workers compensation claim and satisfied its obligations under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Starlight’s obligations under that legislative scheme include obligations about managing return to work, including reasonable workplace support, aids or modifications to assist in the worker’s return to work: see s 103(1) and s 104(3).

67    Starlight invokes the exception of unjustifiable hardship in s 11 of the DDA, contending that anything over and above its obligations under the WIRC Act would be likely to fall within this exception.

68    I accept the submissions from the applicant’s counsel that discharge of an employer’s obligations under State schemes such as the WorkCover scheme in Victoria does not necessarily preclude a finding under the DDA of a failure to make reasonable adjustments. The DDA provisions are intended to be broadly applied, and may go beyond return to work obligations to an injured employee in some circumstances. Nevertheless, it is also correct that what an employer has done under its return to work obligations may in a particular case be relevant to whether there has been a contravention of s 5(2).

69    I also accept the applicant’s submission that at the present stage of the grant of leave, a mere allegation of unjustifiable hardship is insufficient to ground a rejection of leave if an applicant’s complaint is otherwise considered sufficient to warrant the grant of leave to proceed.

70    On the question of reasonable adjustments, the applicant submits (at [15]):

The knowledge of Starlight as to Ms Deam’s disability and of its knowledge relevant to Ms Deam’s need for reasonable adjustments is pleaded and particularised in the Proposed SOC as arising on 5 August, 9 August and/or 3 September 2021. This includes Ms Deam’s email to two Starlight managers on about 9 August 2019 to the effect that she was suffering stress/anxiety from a traumatic event; she needed further help in moving forward to begin work again; she did not feel that she had enough strategies in place to deal with seeing things that may trigger her trauma; she identified the need for an external psychologist or another EAP person with whom she resonated; she had spoken to Soak Mun and Ms Cations, psychologists employed by RCH; she wanted to return to work; and she sought the assistance of Starlight to access services provided by specialist psychologists from an identified practice or a great psychologist who specialises in trauma.

(Footnotes omitted.)

71     In the complaint to the AHRC this allegation was as follows:

It is reasonable that in response to a workplace incident in which an employee was required to act as first responder to a medical emergency that resulted in the death of a child that high quality, tailored support should have been offered immediately to the affected employee, including specialised trauma counselling. As described above, this unfortunately did not occur.

Ms Deam was referred to a range of different EAP psychologists in a short space of time (Ishana Harrysunker, Peter Bata, Alison Knight and Sonja Nota), many of whom appeared ill-equipped to provide counselling on trauma and who failed to provide her with the consistent level of support that she needed in the aftermath of the incident.

It is reasonable that HR representatives should have contacted Ms Deam within days of the incident occurring to discuss the support options that the Starlight Foundation as an organisation could extend to Ms Deam.

It was only once Ms Deam applied for Workcover (on her own volition and without the support of any HR personnel at the Starlight Foundation) and consulted her GP for a Mental Health Plan that she was eventually provided with sustained support through Dr Gladys Johannessen. In fact, Ms Deam only received a call from Ms Ashlee Gunstone at the Starlight Foundation’s HR department concerning Ms Deam’s Workcover claim on 24 September 2019.

The fact that Ms Deam was not provided with adequate support in the direct aftermath of the incident had a negative impact on her recovery which was still continuing at the time of her resignation.

72    On the basis that Ms Deam could prove all she alleges here, it might be said that Starlight had failed to take reasonable steps to support her especially in the immediate aftermath of the August 2019 incident.

73    The difficulty I have in deciding that, based on these factual allegations, Ms Deam’s claim under s 5(2) of the DDA has sufficient prospects of success is that these are not contentions in reality dealing with adjustments by an employer for an employee so an employee can perform their work. That is the context in which s 5(2) arises here, read with the terms of s 4 of the DDA. The allegations are more in the context of workers’ compensation for an injury suffered. Ms Deam has been compensated for that through the WorkCover process.

74    I discussed these provisions in detail in Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 at [15]-[27] and adopt those observations in my reasoning in this proceeding.

75    There are insufficient material facts pleaded about what adjustments Starlight was required to make, in practice, in the workplace of the Captain Starlight Program, how those adjustments would in reality be implemented in the hospital premises attended by Ms Deam, or for how long it was required to make those adjustments. These kinds of material facts are required to demonstrate how it is said the nominated adjustments were “reasonable” and were required for Ms Deam to perform her work as a Captain Starlight. As I have observed, something more than the rehabilitative and compensatory conduct required by Starlight under the WIRC Act needs to be alleged, and there needs to be a clear connection to Ms Deam’s (in)ability to perform her work as a Captain Starlight without the specified adjustments she contends it was reasonable for Starlight to make.

Conclusion

76    I do not consider it is appropriate to grant leave to Ms Deam to commence proceedings in this Court under the DDA. In reflecting on that conclusion overall, I have also taken into account the careful reasons of the AHRC for terminating the complaint under s 46PH(1)(c) of the AHRC Act, which do not in my opinion appear erroneous. The reasons of the AHRC are consistent with the conclusions I have reached independently, save for one matter. That one matter is the conclusion of the AHRC at p 14 that one reason it was not appropriate to commence an inquiry was that Ms Deam had other remedies available to her, including the general protections provisions of the FWA. The failure even of an AHRC delegate to recognise the potential impact of s 734 of the FWA demonstrates the somewhat unfair and arbitrary operation of that provision, as I explain below. Aside from that one matter, I consider the reasons of the AHRC are carefully and thoroughly reasoned. They are consistent with the conclusions I have reached.

Starlight’s IA

77    Having found that Ms Deam’s application for leave to pursue her DDA claim should be dismissed, the question of her ability to continue her FWA claim against Starlight in the face of s 734 remains a live one. The parties accepted that Ms Deam’s DDA complaint to the AHRC was first in time. Ms Deam accepted that the text of s 734 makes it clear the prohibition in s 734 is engaged where there has been a complaint to the AHRC, and then a general protections court application. That is, there need not have been an application to this Court under s 46PO of the AHRC Act in order for s 734 to be engaged.

Ms Deam’s response

78    In contending that s 734 does not preclude the Court from granting leave to bring her DDA claim and joining it with her FWA claim, Ms Deam submits that s 734 should be construed in light of its context and purpose.

79    Ms Deam accepts that s 734 is an “anti-double-dipping provision”. Where she and the respondents part ways is on the application of the prohibition to her two claims. Ms Deam contends that:

the application of sub-ss 734(1) and (2) require a comparison of conduct that may be alleged in a general protections application (on one hand) with conduct that may be alleged in an application of complaint under an anti-discrimination law (on the other). The subsequent application or complaint will be prohibited only to the extent of extant overlapping conduct.

80    Ms Deam contends that the relevant conduct the subject of the DDA claim is distinct from the conduct the subject of her general protections complaint, save for some acknowledged commonality between the “Mental Health Omissions” and the alleged failure of Starlight to make reasonable adjustments in the DDA claim, in relation to which Ms Deam submits it would be open to the Court to strike out the general protections claim to the extent of that overlap.

81    She also contends that, if leave to bring her DDA claim in this Court is refused, then that DDA claim has “failed for want of jurisdiction”, and so s 734 is not engaged.

Resolution

82    The provisions immediately prior to s 734 in the FWA, beginning with s 725, set out a similar scheme to s 734 in respect of claims relating to the dismissal of an employee. Both s 725 and s 734 appear in Div 3 of Pt 6.1 of the FWA, entitled “Preventing multiple actions”. The “general rule” is set out at s 725:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

83    By s 725, if one provision relating to dismissal within ss 726 to 732 applies, then a person cannot also bring a claim to which a second provision within ss 726 to 732 applies.

84    In the case of ss 725-732, and as is the case in s 734, the prohibitions do not apply in two circumstances; namely withdrawal of a claim or failure “for want of jurisdiction”. That is because, evidently, if either of those circumstances applied, there would not be multiple actions on foot. The earlier provisions and s 734 are part of one legislative scheme under Div 3 of Pt 6.1, all with the same objective, and all expressed in similar terms.

85    Section 734(1) requires a focus on “the conduct” alleged in the general protections court application on the one hand, and the “the conduct” alleged in an application or complaint “under anti-discrimination law”. The same focus, but in reverse, is required by s 734(2).

86    In other words, as the parties accepted, the legislative intention revealed by the two limbs of s 734 is that in circumstances not caught by the prohibition in s 725, a person will only be able to seek final resolution of either their claim under anti-discrimination law or their general protections claim.

87    The parties accept that Ms Deam’s AHRC complaint is a complaint made under anti-discrimination law for the purposes of s 734(1), although the definition of “anti-discrimination law” in s 351(3) did not include the AHRC Act at the time it was made. Later amendments to s 734 have clarified expressly what was, in my view, in any event its plain implied inclusion of the AHRC Act. Section 351(3) is not an exhaustive definition. It does not use the defining language of “means”. It simply deems some legislation to be anti-discrimination law. This includes the DDA. The term is used in s 351 to ensure that the exemptions and exceptions prescribed under federal and State laws in relation to discrimination are picked up and excluded from the operation of s 351(1): see Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547 at [113] (O’Callaghan and Thawley JJ); Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460 at [161] (Mortimer J); Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 at [761]-[764] (Katzmann J); Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; 398 ALR 39 at [286] (Perram J).

88    At first blush it might be thought s 734 evinces an intention that a person can elect which of the two jurisdictional bases they wish to pursue. All these provisions (including ss 726-732) contain an exception concerning the withdrawal of a claim: see relevantly s 734(1)(b)(i) and s 734(2)(b)(i). On closer inspection, however, in my opinion, this is not how the provisions are intended to operate.

89    Both s 725 and s 734 operate on the “making” of an application or complaint. That is, they fix the point in time when the prohibition is engaged as the time when a person makes the second (ie the multiple) application or complaint. It is by this point – the making of the second application – that the first complaint or application must have been withdrawn. The provisions use the past tense for “withdrawn”.

90    As I observed during argument, somewhat arbitrarily and unfairly, these prohibitions assume some knowledge in the putative applicant of their existence. For example, a person in Ms Deam’s position would need to be aware, before proceeding to have the AHRC finalise her complaint (it being impossible to withdraw it after it had been finalised/terminated) that the continued existence of that AHRC complaint would preclude her making a general protections court application. That may be well and good if a person is legally advised throughout the AHRC process. If they are not, then the prohibition may operate somewhat arbitrarily and unfairly, in the sense of not giving a person a choice to withdraw the claim that was first in time so as to continue with the one that is second in time. Nevertheless, the legislative intention is in my opinion that there be a prohibition on a second claim being commenced.

91    I have given some consideration to whether s 734 (and therefore also the earlier provisions relating to dismissal) could be construed as allowing a person to elect which claim should be continued. The text and context is however in my opinion intractable. The provisions operate on the facts as at the time of commencement of the claim that is second in time.

92    Ms Deam’s general protections court application was filed on 10 August 2022. Her AHRC complaint was terminated on 15 September 2022. That means there was, in hindsight, a month or so where Ms Deam could have withdrawn her DDA complaint before a decision was made by the AHRC. She could have withdrawn her DDA complaint at the same time she made her general protections court application, and this would have disengaged s 734. In making that observation, I do not criticise Ms Deam at all – these provisions are complex, and as I have observed, it appears the AHRC itself was not aware of the way they might operate.

93    Section 734 having been engaged, the real issue in the present proceeding is the scope of the operation of the prohibition in s 734(1) (relevantly). In my opinion, the premise upon which the prohibitions are based is that each of the two claims deals in substance with the same conduct. Although s 734 does not include the adjective “same” or a description such as “substantially similar”, in my opinion this the intention of the provision. The scheme of Div 3 of Pt 6.1 is to preclude multiple litigation concerning substantially the same conduct.

94    As I understand it, Starlight did not dispute this proposition. It does not say the prohibition is engaged if the conduct alleged in the first complaint is quite different from the conduct alleged the second complaint, even if the parties are the same.

95    In my view, the terms of s 734(1) as they applied to Ms Deam require a comparison between Ms Deam’s AHRC complaint (as the first in time claim) and Ms Deam’s general protections court application, as explained in the amended concise statement. In oral submissions in reply, counsel for Ms Deam appeared to submit that the Court could not or should not look at the amended concise statement. If that was the submission, I reject it. Although concise statements are not pleadings – see the Court’s Central Practice Note at [6.8]-[6.10], and Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 287 FCR 388 at [140]-[154] – their purpose is to outline the case sought to be put by a party. In this case, no pleadings have been ordered or filed, and although on these IAs the parties were all content to refer to the proposed statement of claim, strictly the comparison required by s 734 must be with filed documents.

96    I therefore reject the submissions of counsel for the applicant that it is appropriate only to look at the proposed statement of claim. That document is not filed, and no leave has been granted to file it. While it was used by all parties during the hearing as a convenient single location to understand how Ms Deam now puts her claims, and while it might be that content-wise there is no substantial difference, s 734 operates as a prohibition leading to possible dismissal of a proceeding in this Court, and it is therefore appropriate that its terms be followed. The distinction may not matter as there was no suggestion the proposed statement of claim travelled beyond the amended concise statement in any event. There has been a general consistency in Ms Deam’s allegations from the start of her complaints.

97    Thus, in order to undertake the comparison required by s 734, I consider the two documents to be examined are Ms Deam’s AHRC complaint and her amended concise statement in relation to her general protections court application.

98    In making its submissions that the conduct was the same or substantially the same, Starlight relied on a table prepared and annexed to the affidavit of its solicitor, Ms Wescott. The table appeared in correspondence to Ms Deam’s solicitors in which Starlight sought to persuade Ms Deam to withdraw the general protections court application.

99    I found the table a helpful document. However, independently of it, I am satisfied the conduct upon which Ms Deam relies in her general protections court application is the same or substantially the same conduct alleged in her AHRC complaint.

100    In her AHRC complaint, Ms Deam makes the three allegations of unlawful discrimination I have set out above: one indirect discrimination claim on her own behalf, one direct discrimination claim on her own behalf and one indirect discrimination claim on behalf of children in participating hospitals who access the Captain Starlight program.

101    The indirect discrimination claim on behalf of children at participating hospitals can be put to one side as this is not a complaint covered by the general protections application.

102    As for the remaining two discrimination claims:

(a)    The direct discrimination claim concerns the alleged failure to make reasonable adjustments for Ms Deam after the August 2019 event. I consider the underlying material facts of this claim are substantially the same as those Ms Deam describes in her amended concise statement as the 9 August complaint, the 5 September complaint (or inquiry), and the 6 September adverse action. In both claims the factual allegations concern how Ms Deam was treated after the August 2019 event, in terms of what she contends was the inadequate assistance and support she received. That each claim is then refined to pick up the language of the DDA and the FWA respectively does not alter the reliance on the substantially similar sub-stratum of fact. Indeed the whole point of ss 725-734 is that the same conduct can be characterised differently so as to fit within different legislative provisions, although in reality advancing a claim about the same conduct.

(b)    The indirect discrimination clam concerns the imposition of a condition on Ms Deam after the August 2019 event, as I have described at [54] above. I consider the underlying material facts of this claim are the same or substantially the same as what Ms Deam describes in her amended concise statement as the “Emergency Help Omissions” and the “Mental Health Omissions”, and the 6 September adverse action. Both concern the failure to provide Ms Deam with what she considers to be the kind of safety assurances and psychological supports she required before she could continue effectively as a Captain Starlight. Again, in each claim the allegations are framed to fall within the different legislative schemes, but substantially the same conduct by Starlight is the subject of both claims.

103    Therefore, subject to my consideration in the next section, I find that the prohibition in s 734(1) is engaged in respect of Ms Deam’s general protections court application.

Since leave has not been granted, has Ms Deam’s DDA claim “failed for want of jurisdiction”?

104    Counsel for Ms Deam submitted that if leave is refused for Ms Deam to make her application for contraventions of the DDA, then that application will have failed “for want of jurisdiction” and the prohibition under 734 does not arise. He submitted this result followed because the leave requirement in s 46PO imports a jurisdictional requirement.

105    After setting out how an application to this Court or Div 1 of the FCFCOA may be made, and by whom, s 46PO(3A) provides:

(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).

106    While in one sense it is correct that s 46PO(3A) concerns the jurisdiction of this Court, that is not the “jurisdiction” to which s 734(1)(b)(ii) refers.

107    In my view the expression “failed for want of jurisdiction” in s 734(1)(b)(ii) refers to the jurisdiction of the court or tribunal where the first application or complaint was made. Here, that is the AHRC. That is the sense in which the first exception – the withdrawal exception in s 734(1)(b)(i) – is used. It speaks to withdrawal in the court or tribunal where the application or complaint was lodged. So too, failure for want of jurisdiction speaks to the jurisdiction of the court of tribunal where the first in time application or complaint was lodged. Ms Deam’s complaint did not fail in the AHRC for want of jurisdiction. The AHRC accepted it had jurisdiction, and it dealt with the complaint on its merits.

108    The exception in s 734(1)(b)(ii) does not apply. Ms Deam’s general protections court application is prohibited by s 734(1) of the FWA.

RCH’s IA and Monash’s IA

109    I have explained above why Ms Deam’s indirect discrimination claim on behalf of children present at the RCH and Monash who may participate in the Captain Starlight program has insufficient prospects of success to warrant the grant of leave. That conclusion applies equally to the RCH and to Monash particularly on the question of standing and the absence of any arguable pleadings of material fact against the RCH and Monash.

Costs

110    Starlight sought costs. In [29]-[30] of its written submissions, it contended Ms Deam instituted the proceedings without reasonable cause, by reason of s 734; and secondly that she acted unreasonably because, having had the effect of s 734 pointed out in correspondence from Starlight, she refused to discontinue the proceedings.

111    I reject the application for costs. In my opinion the usual rule under s 570(1) of the FWA applies. The proper construction and operation of s 734 was not straightforward, and as I have explained, what I consider to be its proper construction does give the provision an arbitrary and somewhat unfair operation. Even the AHRC delegate seemed unaware of its potential effects.

112    Further, insofar as the costs incurred in the proceeding involve the leave application under the s 46PO of the AHRC Act, that application has been conducted as efficiently and effectively as possible, by combining it with the strike out applications.

My conclusions

113    My conclusions are, first, that leave should not be granted to Ms Deam to commence proceedings under s 46PO(3A) of the AHRC Act. Second, that s 734 prohibits the making of the general protections court application filed by Ms Deam on 10 August 2022.

114    There will be orders dismissing the general protections proceeding. The orders need not rely on s 31A (which is discretionary) as the operation of s 734 is prohibitory in nature and, once the Court concludes it applies, the Court must give effect to the prohibition by dismissing the prohibited proceeding. To avoid doubt however, it is clear also that Ms Deam’s general protections claim has no reasonable prospects of success by reason of the operation of s 734(1) of the FWA, and orders could have been made under s 31A as well. However, in my view, given the terms of the prohibition in s 734(1), the preferable course is simply to dismiss the proceeding.

115    I echo the sentiments of the AHRC delegate at p 13 of the delegate’s reasons that this whole situation arose out of a traumatic workplace incident, although I would add that it was obviously an even more traumatic and tragic incident for the family of the child involved. While Ms Deam is likely to remain dissatisfied with Starlight’s conduct, and with the approach taken by Monash and the RCH, and while her concern for the safety of other children in the Captain Starlight program is no doubt genuine, then subject to any appellate orders, this decision brings an end to her attempts in this Court to agitate her concerns about what happened after that incident.

Associate:

Dated:    24 March 2023