Deam v Starlight Children's Foundation Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 24 March 2023
• Neutral Citation: [2023] FCA 259
• Date: 24 March 2023
• Court: Federal Court

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:	General 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

		VID 443 of 2022
BETWEEN:	LARA DEAM Applicant
AND:	STARLIGHT CHILDREN’S FOUNDATION AUSTRALIA (ABN 80 931 522 157) First Respondent ; THE ROYAL CHILDREN’S HOSPITAL (ABN 35 655 720 546) Second Respondent ; MONASH CHILDREN’S HOSPITAL (ABN 82 142 080 338) Third Respondent

order made by:	MORTIMER J
DATE OF ORDER:	24 March 2023

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...