Deam v Starlight Children's Foundation Australia

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FEDERAL COURT OF AUSTRALIA

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

File number: VID 443 of 2022
Judgment of: MORTIMER J
Date of judgment: 24 March 2023 
Catchwords:

INDUSTRIAL LAW – interlocutory application seeking summary dismissal of proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) – whether s 734 of the Fair Work Act 2009 (Cth) precludes the applicant from making a general protections application to this Court in circumstances where the applicant’s prior Australian Human Rights Commission complaint was terminated – whether conduct is substantially the same – interlocutory application granted – proceedings dismissed

HUMAN RIGHTS – application for leave to bring proceedings pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) – whether claims have reasonable prospects of success – leave refused

Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46P(2)(a)(i), 46PH(1)(c), 46PO(1), 46PO(3A)

Disability Discrimination Act 1992 (Cth) ss 4, 5(2), 6, 11, 15(2)

Fair Work Act 2009 (Cth) ss 340, 342, 351, 368(4), 539, 570, 725, 734

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules 2011 (Cth) r 26.01(1)(a)

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 103, 104

Cases cited:

Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 287 FCR 388

Budini v Sunnyfield [2019] FCA 2164

Chircop v Technical and Further Education Commission [2022] FCA 1015

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242

Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450

James v WorkPower Inc [2018] FCA 2083

Jones v Westpac Banking Corporation [2020] FCA 238

Knowles v Commonwealth [2022] FCA 741

Matthews v Markos [2019] FCA 1827

Owen v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2020] FCA 1826

Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460

Praljak v Commonwealth [2022] FCA 1438

Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; 398 ALR 39

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460

Trotta v Northern Health [2021] FCA 668

Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220

Webster v Lampard [1993] HCA 57; 177 CLR 598

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547

Wilson v Britten-Jones (No 2) [2020] FCA 1290

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 115
Date of hearing: 16 February 2023
Counsel for the Applicant: Mr J McKenna
Solicitor for the Applicant: Harmers Workplace Lawyers
Counsel for the First Respondent: Mr S Meehan
Solicitor for the First Respondent: Lander & Rogers
Counsel for the Second Respondent: Ms J Moir
Solicitor for the Second Respondent: DLA Piper
Counsel for the Third Respondent: Mr A Denton
Solicitor for the Third Respondent: Victorian Government Solicitor’s Office

ORDERS

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Details
Case
[2023] FCA 259
Decision Date

CaseChat Overview and Summary

In Deam v Starlight Children's Foundation Australia, the applicant, Ms Deam, sought leave to commence proceedings under the Disability Discrimination Act 1992 (Cth) against the Starlight Children's Foundation Australia and the Royal Children's Hospital, as well as to continue her existing Fair Work Act 2009 (Cth) proceedings against the Foundation. Ms Deam, a former employee of Starlight, alleged discrimination and disability harassment due to her disability. The court had to decide whether Ms Deam's claims were precluded by s 734 of the Fair Work Act, which prevents double-dipping between the Fair Work Act and anti-discrimination laws.

The court found that Ms Deam's claims were barred by s 734 of the Fair Work Act. The court ruled that the conduct Ms Deam sought to allege in her Disability Discrimination Act claim overlapped substantially with the conduct she had previously complained about to the Australian Human Rights Commission (AHRC). Consequently, the court concluded that Ms Deam's claims were precluded under s 734. The court also noted that Ms Deam's Disability Discrimination Act claims lacked sufficient material facts to establish the reasonableness of the adjustments she sought from Starlight. Therefore, the court dismissed the interlocutory application and the proceeding, finding that there were no reasonable prospects of success for Ms Deam's claims.

The court granted the interlocutory application seeking summary dismissal of Ms Deam's proceedings. The court found that Ms Deam's claims were precluded by s 734 of the Fair Work Act, as the conduct she sought to allege in her Disability Discrimination Act claim overlapped substantially with the conduct she had already complained about to the AHRC. Additionally, the court held that Ms Deam's claims lacked sufficient material facts to establish the reasonableness of the adjustments she sought from Starlight. Consequently, the court dismissed the proceeding and refused leave to commence proceedings under the Australian Human Rights Commission Act 1986 (Cth). There was no order as to costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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 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. 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”. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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 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 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. 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.

Ratio Decidendi

Legal Principle Established

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