Chilcott v Townsville Hospital and Health Service and Anor [2026] QIRC 1

HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION - whether the decisions of the Second Respondent, as the Director of Medical Services, Rural Health Service Group and Indigenous Health Service Division of the First Respondent, to cancel the Complainant's further locum assignment at the Hughenden Health Service and then to change the after-hours rostering arrangements at the Magnetic Island Health Service, unreasonably limited the Complainant's human rights under s 15 and s 31 of the Human Rights Act 2019 - such claims not addressed in final submissions by the Complainant - Complainant's claims of unlawfulness under the Human Rights Act 2019 dismissed pursuant to s 451(1) of the Industrial Relations Act 2016

Acts Interpretation Act 1954, s 15A

Anti-Discrimination Act 1991, s 7, s 8, s 9, s 10, s 15A, s 204, s 205, s 209 210, s 282, s 285A and s 285AA.

Corruption (Restoring Reporting Powers) and Other Legislation Amendment Act 2025, s 36, s 37, s 53 and s 54.

Disability Discrimination Act 1992, s 5

Human Rights Act 2019, s 15, s 23, s 31 and s 58

Industrial Relations Act 2016, s 429, s 451 and 541.

Respect at Work and Other Matters Amendment Act 2024, s 2, s 7B, s 47A and s 51.

Alexander v Home Office [1998] 1 WLR 968

Al Muderis v Nine Network Australia Pty Limited (Trial Judgement) [2025] FCA 909

Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322

Australian Securities and Investments Commission v Big Star Energy Ltd and Anor (No 3) [2020] FCA 1442; (2020) 389 ALR 17

Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 13

Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521

Chilcott v Townsville Hospital and Health Service and Anor [2025] QIRC 032

Commonwealth v Humphries [1998] FCA 1031; (1998) 86 FCR 324

Edwards v Hillier & Educang Limited t/a Forest Lake College [2006] QADT 34

Forest v Queensland Health [2007] FCA 1236

Gulic v Boral Transport Ltd [2016] NSWCA 269

Haines v Leves [1987] 8 NSWLR 442

Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217

Hopper & Others v Virgin Blue Airlines Pty Ltd [2006] QADT 9

Jenkins v State of Queensland & Ors [2018] QCAT 154

Lehrmann v Network Ten Pty Limited (Trial Judgement) [2024] FCA 369; (2024) 422 ALR 507

Lattouff v Australian Broadcasting Corporation No 2 [2025] FCA 669

McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4

Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80

Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33

Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273; (2021) 9 QR 250

Ponraj v Wycombe Services Pty Ltd [2023] FCA 118

Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334

Reurich v Savills (SA) Pty Ltd [2025] FCA 420

Ryan v Commissioner of Police, NSW Police Force (No 4) [2023] FCA 1016

Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247

SQH v Scott [2022] QSC 16

Talbot v Sperling Tourism & Investments Pty Ltd [2011] NSWADT 67; (2011) 211 IR 419

Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960; (2024) 333 IR 296

_United Group Resources Pty Ltd and Others v Calabro and Others (_No 5) [2011] FCA 1408; (2011) 198 FCR 514

Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 075

Waterhouse v Bell (1991) 25 NSWLR 99

Woodforth v State of Queensland [2018] 1 Qd R 289; [2017] QCA 100

Wotton v Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146

Mr D. Payard of Counsel instructed by Ms D. Williamson of Crown Law

[1] These reasons assume familiarity with the decision in Chilcott v Townsville Hospital and Health Service and Anor[1] ('Chilcott No. 1'). Unless otherwise indicated, the definitions I used in the main body of Chilcott No. 1, and in the footnotes to Chilcott No. 1, are used in this decision.

[2] Chilcott No. 1 concerned, inter alia, an application made by the Respondents to dismiss various aspects of Dr Chilcott's complaint of unlawful age discrimination made under the AD Act, ('Dr Chilcott's AD Act claims') and also to dismiss Dr Chilcott's related claims under the HR Act ('Dr Chilcott's HR Act claims').

[3] After deciding the application made by the Respondents, I relevantly stated:

[101] For the reasons I have given, I will make orders reflecting the conclusions I have reached.

[102] As Dr Chilcott's contentions currently stand, the only claims that are presently justiciable before the Commission are:

• his claims that he was the subject of unlawful age discrimination in relation to:

• - the change made by Dr Lane to the after-hours rostering at the Magnetic Island HS; and

• - Dr Lane's cancellation of the further Hughenden assignment; and

• his claim that the decision of Dr Lane changing the after-hours rostering at the Magnetic Island HS, and his claim that the decision of Dr Lane cancelling the further Hughenden assignment, were not compatible with his human rights as contained in s 15 and s 31 of the HR Act.

[4] This is my decision about Dr Chilcott's contentions that survived Chilcott No. 1. Dr Chilcott represented himself in this proceeding. The Respondents were represented by Mr Payard of counsel. Evidence was heard on 7 and 8 August 2025 followed by the parties' written closing submissions filed in October and November 2025.

• Ms Karen Petrie, Director of Nursing, Hughenden HS ('Ms Petrie');[2]

• Ms Heather, the Service Group Director for the Health Service ('Ms Heather');[3] and,

• the Second Respondent, Dr Paul Lane who, at the material time, was the Health Services' Director of Medical Services, Rural Health Service Group and Indigenous Health Service Division ('Dr Lane').[4]

• dismiss Dr Chilcott's contention that he was the subject of unlawful age discrimination in relation to Dr Lane's cancellation of the further Hughenden assignment;

• dismiss Dr Chilcott's contention that he was the subject of unlawful age discrimination in relation to the change made by Dr Lane to the after-hours rostering at the Magnetic Island HS; and

• dismiss Dr Chilcott's contentions that the decisions of Dr Lane, to cancel the further Hughenden assignment and to change the after-hours rostering at the Magnetic Island HS, were not compatible with Dr Chilcott's human rights as contained in s 15 and s 31 of the HR Act.

[8] Dr Chilcott's affidavit was Exhibit 4 and exhibit 'PBC-38' to his affidavit was Dr Chilcott's curriculum vitae.

[9] In 1973, Dr Chilcott graduated from the University of Queensland with a Bachelor of Medicine and Bachelor of Surgery. In 1983, Dr Chilcott was awarded a Diploma in Medical Hypnosis from the College of Medical Hypnosis. In 1999, Dr Chilcott was awarded a Master of Public Health and Tropical Medicine from James Cook University.[5]

[10] From the time Dr Chilcott began practising medicine, which was in 1974, until his retirement, he spent his professional life working as either a Resident Medical Officer, General Medical Practitioner, Medical Superintendent or Director of Medical Services in regional and remote towns, and in remote Aboriginal communities, in Queensland, Western Australia and the Northern Territory.[6]

[11] In his affidavit, Dr Chilcott gives the following unchallenged evidence about his professional history:

• he has worked as a medical practitioner, exclusively in rural and remote Australia, for 47 years;

• he was initially trained as a first-year resident in Cairns, bonded to the Queensland Department of Health, to work as a Generalist providing full General Practitioner services in anaesthetics, surgery and obstetrics including breach deliveries and caesarean sections in remote locations;
• following his initial training in Cairns, he worked for the next 20 years in Atherton and Mareeba, after which he then worked at various rural and remote locations including:

• - Woorabinda, Glenden, Bowen (Queensland);
• - Jigalong (Western Australia); and

• - Alyangula, Angurugu, Umbakumba, Bickerton Island, Numbulwar, the Tiwi Islands, Groote Eylandt and Gove, including providing regular two-day clinic visits to Ramingining, Gapuwiyak and Milingimbi (Northern Territory);

• he has provided General Practitioner locum services in:

• he is a founding member of the Australian College of Rural and Remote Medicine ('ACRRM') including being the Northern Territory representative on the board of ACRRM.[7]

[12] Dr Chilcott has devoted his professional working life to the practice of remote and rural medicine and to the provision of medical services to a number of remote Aboriginal communities.

[13] This fact was recognised by Dr Lane in his evidence. Dr Lane exhibited the emails he exchanged with the Health Service's Locum Coordinator for its medical workforce on 19 February 2021. The context of the email exchange was the decision made by Dr Lane that the Health Service could no longer use Dr Chilcott as a locum. Although its contents have more direct relevance to matters I deal with later, in one of the emails, Dr Lane stated:

I am hoping to have a local solution for Maggie in place by 22nd March so he will most likely not be required then. So that just leaves the other Hughenden slot.... Do we think we can find another doctor for that time?

I personally think Peter should retire. I think the long stint doing call is too much. Should we have a conversation with the locum agency? I want to be very respectful as Peter has made a huge contribution to rural health over the years.[8]

[14] In my view, it is appropriate to recognise Dr Chilcott's commitment, over his working life, to the practice of medicine in the abovementioned rural and remote locations.

[15] This is particularly the case because of certain evidence Dr Chilcott gives in support of his claims. In paragraphs 9 and 10 of his affidavit (Exhibit 4) after referring to his professional history, Dr Chilcott states:

1. This evidence is in relation to my claim of age-related discrimination against Dr Paul Lane from the Townsville Hospital and Health Service that occurred during a series of short-term locum appointments in relation to vacancies in the remote medical workforce unable to be filled by permanent employees.

1. I trust the Commission will recognise my years of honest human service to the rights and needs of my patients, people in rural and remote parts of our country. I also trust the Commission to recognise that everyone including locum doctors have the human right of equitable access to public service, the protection of being dealt with according to documented public policy and not by arbitrary reprisal.

[16] Dr Chilcott's long service to patients in remote and rural parts of Queensland, Western Australia and the Northern Territory, in many cases by way of a locum appointment, is not in issue. Further, despite the nature of some of the submissions made by Dr Chilcott, the matters that I have to determine do not involve or relate to any question of whether or not Dr Chilcott was a competent medical practitioner when he was performing work at the Hughenden HS in 2021. Dr Chilcott's clinical competence is unchallenged. Indeed, Dr Lane's evidence in cross-examination was that he never had an issue with Dr Chilcott's clinical competence[9] and that he considered Dr Chilcott to be '...a safe and... competent clinician.'[10]

[17] The matters that I have to determine are quite confined, namely:

• whether Dr Chilcott, as he contends, was the subject of unlawful direct age discrimination in respect of:

• - Dr Lane's decision to cancel the further Hughenden assignment; and

• - in respect of the change made by Dr Lane to the after-hours rostering at the Magnetic Island HS; and

• whether the same two decisions made by Dr Lane were, as Dr Chilcott contends, not compatible with his human rights:

• - to recognition and equality before the law, as provided for by s 15 of the HR Act; and

• - to a fair hearing as provided for in s 31 of the HR Act, as Dr Chilcott contends.

The onus of proof and standard of proof under the Anti-Discrimination Act 1991

[18] Direct (and indirect) discrimination is prohibited in the areas of activity contained in ch 2, pt 4 of the AD Act. Chapter 2, pt 4, div 2 of the AD Act prohibits discrimination in the work and work-related areas.

[19] Section 15A of the AD Act deals with discrimination by principals in the work area. Relevantly to Dr Chilcott's two contended complaints that he was the subject of unlawful age discrimination by Dr Lane, s 15A(2)(b) of the AD Act provides that the principal must not discriminate '... (b) by not allowing the worker to work or continue to work.' The Respondents do not contend that Dr Chilcott was not a worker for the purposes of considering whether he was the subject of direct discrimination in the work area within the meaning of s 15A(2)(b) of the AD Act.

[20] At this point, it is necessary to address some of the relevant legal principles to be applied in determining Dr Chilcott's claims. These concern the onus of proof and the standard of proof. These matters are, in my view, correctly stated by the Respondents in their closing submissions.[11]

The onus of proof in respect of Dr Chilcott's AD Act claims

[21] Relevant amendments were made to the AD Act by virtue of the Respect at Work and Other Matters Amendment Act 2024 ('the Respect at Work Amendment Act'). Those amendments included amendments to s 204 and s 205 of the AD Act.

[22] By virtue of s 47A of the Respect at Work Amendment Act, s 204 and s 205 of the AD Act were omitted and the following provisions inserted in their place, both of which commenced on 1 December 2024:[12]

(1) In a complaint proceeding, if there are facts from which it could be decided, in the absence of any other explanation, that the respondent contravened the provision of the Act the subject of the alleged contravention, the respondent is taken to have contravened the provision.

(2) Subsection (1) does not apply if the respondent proves, on the balance of probabilities, that the respondent did not contravene the provision.

(3) Subsection (1) and (2) apply in addition to any other provision of the Act that provides for who has the onus of proving a particular matter.

(1) An exemption is a defence to discrimination, and the person seeking to rely on the exemption has the onus of proving, on the balance of probabilities, that the exemption applies.

exemption means an exemption under chapter 2, part 4 or 5 that applies to discrimination.

[23] The Respect at Work Amendment Act introduced transitional provisions being ch 11, pt 10 of the AD Act.[13] The relevant transitional provision introduced was s 285A, which was to commence operation on 1 July 2025,[14] and which provided:

285A Burden of proof for complaints about pre-commencement conduct

(a) a complaint made before the commencement that, immediately before the

(b) a complaint made after the commencement in relation to an alleged contravention of the Act that happened before the commencement.

(2) New sections 204 and 205 do not apply in relation to the complaint.

(3) Former sections 204 to 206 continue to apply in relation to the complaint.

[24] Section 282 of the AD Act, which commenced operation on 1 July 2025,[15] provides the definitions for ch 11, pt 10 of the AD Act, namely:

amendment Act means the Respect at Work and Other Matters Amendment Act 2024.

former, for a provision of this Act, means the provision as in force from time to time before the commencement of the provision in which the term is used.

new, for a provision of this Act, means the provision as in force from the commencement of the provision in which the term is used.

[25] However, the transitional operation of the amendments to s 204 and s 205 of the AD Act, brought about by the Respect at Work Amendment Act, was affected by pt 4, div 1 of the Crime and Corruption (Restoring Reporting Powers) and Other Legislation Amendment Act 2025 which relevantly provided:

This division amends the Anti-Discrimination Act 1991.

1. Insertion of new s 285AA

Chapter 11, part 10, after section 285-

285AA Delayed application of new burden of proof for complaints

(a) a complaint made before the relevant commencement that, immediately before the relevant commencement, had not been finally dealt with; or

(b) a complaint made after the relevant commencement in relation to an alleged contravention of the Act that happened before the relevant commencement.

(2) New sections 204 and 205 do not apply in relation to the complaint.

(3) Former sections 204 to 206 continue to apply in relation to the complaint, as if section 47A of the amendment Act had not commenced.

(4) This section is taken to have applied from 1 December 2024.

former sections 204 to 206 means sections 204 to 206 of this Act as in force before 1 December 2024.

new sections 204 and 205 means sections 204 and 205 of this Act as in force from 1 December 2024.

relevant commencement means the commencement of section 7B of the amendment Act.

[26] Section 36 and s 37 of the Crime and Corruption (Restoring Reporting Powers) and Other Legislation Amendment Act 2025 commenced on the date of the assent of that Act,[16] which was 19 May 2025.

[27] Section 7B of the Respect at Work Amendment Act (which amended the definitions of direct and indirect discrimination) now commences operation on a date to be fixed by proclamation.[17] By virtue of s 54 of the Crime and Corruption (Restoring Reporting Powers) and Other Legislation Amendment Act 2025, s 285A of the AD Act was omitted.

[28] Dr Chilcott made his complaint to the QHRC on 5 July 2021. Dr Chilcott's complaint has not been finally dealt with. Therefore, by virtue of s 285AA(1)(a) and (3) of the AD Act, the former sections 204 to 206 of the AD Act apply to my determination of Dr Chilcott's complaint.

[29] Sections 204 and 205 of the AD Act, as were in force before 1 December 2024, provided:

It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act, subject to the requirements in sections 205 and 206.

In a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable.

[30] As a consequence, in respect of his claims of direct age discrimination, Dr Chilcott bears the onus of proof, on the balance of probabilities, that Dr Lane contravened the AD Act.

[31] Dr Chilcott does not make any claim of indirect discrimination against Dr Lane.

The onus of proof in respect of Dr Chilcott's HR Act claims

[32] The Respondents, in submitting that Dr Chilcott bears the onus of proof in claiming that the two decisions of Dr Lane limited his human rights,[18] correctly referred to Owen-D'Arcy v Chief Executive, Queensland Corrective Services,[19] where Martin J stated (citations omitted):

[128] The applicant bears the onus of establishing that the decision imposes a limit on human rights.

[129] If established, the respondent bears the onus of justifying the limit.

The standard of proof in respect of Dr Chilcott's AD Act claims

[33] In Jenkins v State of Queensland & Ors ('Jenkins'),[20] Member Roney QC relevantly stated of the standard of proof in cases like the present (citations omitted):

Relevant legal principles - the standard of proof

[58] It is well-established that proceedings of this nature involving allegations of discriminatory conduct nature such as the present, albeit civil proceedings, with the requisite civil standard of proof applying, are required to meet the standards of the so-called Briginshaw test.

[59] The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave consequences. Importantly, Briginshaw does not alter the standard of proof, that is, on the balance of probabilities, as the High Court emphasised in its authoritative re-statement of the Briginshaw principle in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd. Briginshaw does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind.

... the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

[61] In short, the more serious the allegation, the more probative or stronger the evidence needs to be. Having said this, in Neat the High Court cautioned against generalisations about the need for 'clear' or 'cogent' evidence, even where the standard of proof was correctly understood. These were 'likely to be unhelpful and even misleading'.[21]

[34] In Lehrmann v Network Ten Pty Limited (Trial Judgement),[22] Lee J relevantly stated:

1. The concept used in subsection (1), being the "balance of probabilities", is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a "reasonable satisfaction" on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 (at 403 per Dixon J). The "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.

1. Although s 140 EA is now the starting point, the concepts it incorporates are neither new nor novel. Any fact-finding inquiry depends upon context. As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874-875 [57]), the statutory provision:

... reflects the position of the common law that the gravity of the fact sought to be proved is relevant to "the degree of persuasion of the mind according to the balance of probabilities". By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that "the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved".

(Citations omitted)

1. As those acting for Mr Lehrmann correctly state, in Briginshaw, Dixon J (at 362) emphasised that reasonable satisfaction is not attained independently of the nature and the consequence of the fact to be proved, and his Honour referred to the seriousness of the allegation, the inherent unlikelihood of the alleged occurrence, or the gravity of the consequences flowing from the finding in question as matters which could all properly bear upon whether the court is reasonably satisfied or feels actual persuasion. The other members of the Court in Briginshaw also referred to the seriousness of the allegation sought to be proved as a matter relevant to whether or not the tribunal of fact could be satisfied of the fact alleged (at 347 per Latham CJ; 350 per Rich J; 353 per Starke J; and 372 per McTiernan J).

The standard of proof in respect of Dr Chilcott's HR Act claims

[35] To the extent there is any onus of proof on the Respondents to justify a limit on Dr Chilcott's human rights, the standard of proof, while on the balance of probabilities, is high requiring a '... degree of probability which is commensurate with the occasion.'[23]

Dr Chilcott's claim he was the subject of unlawful age discrimination by Dr Lane's cancellation of the further Hughenden assignment

[36] I summarised Dr Chilcott's contentions about this claim in Chilcott No. 1. It is convenient to reproduce that part of Chilcott No. 1 in these reasons (footnotes omitted):

Alleged discrimination on the basis of age at the Hughenden HS - cancellation of further assignment at the Hughenden HS between 5 and 19 March 2021 (paragraphs 29-30, 35-37 and 48 of Dr Chilcott's contentions)

• he had been approved for a further assignment at the Hughenden HS from 5 to 19 March 2021 ('the further Hughenden assignment');

• on 23 February 2021, Dr Lane had cancelled the further Hughenden assignment;

• the '...termination' of the further Hughenden assignment was confirmed to him by letter from Ms Ruth Heather, Service Group Director, Rural Hospitals Service Group ('Ms Heather') on 8 March 2021 which '...falsely claim[ed]' the termination of the further Hughenden assignment '...was "pursuant to Queensland Health Policy B45 and was" authorised " ... under the Standing Offer Arrangement SOA" and that it was pursuant to "clause 4.14.2 of the SOA"';

• Ms Heather misrepresented Queensland Health Policy B45;

• Dr Lane's cancellation of the further Hughenden assignment was direct discrimination against him (Dr Chilcott) on the basis of his age; and

• the proof of Dr Lane's alleged discriminatory conduct was Dr Lane's earlier conduct of '... relieving the Complainant of his after-hours duties to a subordinate medical officer the following day', namely, that as evidenced by Dr Lane's email to Dr Short.

[37] The Respondents deny this allegation because they contend:

• they removed Dr Chilcott from future Hughenden HS assignments because they believed certain incidents about his workplace behaviour and issues working with staff and patients had occurred;[24] and

• they would have removed a younger general practitioner for the same reasons if they believed the younger general practitioner had behaved in the same manner.[25]

Direct age discrimination under the Anti-Discrimination Act 1991

[38] This is a claim of direct age discrimination by Dr Chilcott. Section 7(f) of the AD Act prohibits discrimination on the basis of the attribute of age. In respect of this claim, the Respondents refer to the decision of Moynihan J in Virgin Blue Airlines Pty Ltd v Hopper & Ors,[26] where his Honour stated (citations omitted):

**[199] It is self evident that discrimination may be a consequence of a particular age group being too old. This results in discriminating against anyone falling in that age group without it being necessary to give particular consideration to that person's precise age at a particular stage.

[200] The case was conducted on the basis of the attribute of age being defined not by a specific cut-off point but in terms of a younger and an older age group with the respondents belonging to the latter. There was no error on a question of law involved in the tribunal, in the circumstances of this case, proceeding on that basis.**

[39] The Respondents accept that Dr Chilcott's age was a protected attribute.[27]

[40] Section 9(a) of the AD Act prohibits direct discrimination. Section 10 of the AD Act defines direct discrimination and relevantly provides:

(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

• C's friend, B, is English and R doesn't like English people

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

(2) It is not necessary that the person who discriminates considers the treatment is less favourable.

(3) The person's motive for discriminating is irrelevant.

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

[41] Given s 10(1) of the AD Act and Dr Chilcott's contentions:

• I must consider whether Dr Chilcott he was treated less favourably than another a person, who did not have Dr Chilcott's protected attribute of older age, would be treated in circumstances that are the same or not materially different; and

• whether the less favourable treatment was because of, or on the basis of, Dr Chilcott's older age.[28]

[42] These are the two questions that are to be asked in respect of the application of s 10(1) of the AD Act. They are separate questions.[29] The latter question concerns causation. While in some cases, the two questions may overlap as a matter of practicality,[30] the issue of causation is different to the issue of comparable less favourable treatment.[31]

[43] While, by s 10(3) of the AD Act, a person's motive for discriminating is irrelevant, intention and motive are not the same thing. In Purvis v State of New South Wales ('Purvis'),[32] McHugh and Kirby JJ stated (citations omitted):

1. The words "because of" in s 5(1) of the Act indicate that it is the reason why the discriminator acted that is relevant. This interpretation is also consistent with s 10 of the Act, which refers to an act done for two or more "reasons". In dealing with s 10 the Explanatory Memorandum to the Disability Discrimination Bill also stated that "' [i]n relation to direct discrimination the reason that someone has done a particular discriminatory act is very important". However, the cases show differences of opinion concerning the relevance of the alleged discriminator's motive or intention.

1. A"but for" test was applied by Lord Goff of Chieveley in Birmingham City Council v Equal Opportunities Commission where his Lordship said:

"There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate ... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. [Otherwise] it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but . . . because of customer preference, or to save money, or even to avoid controversy."

1. By placing the words "intention" and "motive" together and denying that either is necessary for a finding of direct discrimination, his Lordship opened the way for the submission that direct discrimination does not contain an intention element. However, intention and motive are not the same thing.

1. The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act.

[44] Similarly, Gummow, Hayne and Heydon JJ in Purvis stated:

1. For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of ".

[45] This principle has been applied to s 10(1) of the AD Act.

[46] In Edwards v Hillier & Educang Limited t/a Forest Lake College[33], President Dalton SC of the Queensland Anti-Discrimination Tribunal stated (citations omitted):

[75] Therefore, I find that the second respondent made a genuine decision based on the requirements of the Registrar's job, that it should be returned to a sole-occupant, full-time position. It may readily be accepted that once the job was returned to a full-time position it was unsuited to the complainant and that unsuitability was known to, or could be readily predicted by, the decision-makers within the second respondent. However, returning the position to full-time was the consequence of a genuine decision by the employer as to the requirements of the position; it was not the other way round i.e., it was not the complainant's parental responsibilities or pregnancy which were the basis for the decision to return the job to a full-time position. The decision alone is not capable of amounting to discrimination within the meaning of s.10 of the Act.

[84] There is no doubt that the complainant was treated unfavourably; the Act directs my attention to: (a) whether or not she was treated less favourably than another person without the attributes relied upon in circumstances which are the same or not materially different and (b) whether that less favourable treatment was on the basis of an attribute. I turn to the latter question first.

[85] This first question necessarily involves precise ascertainment of the attribute relied upon. Here I have found that one substantial reason for the second respondent's not awarding the Registrar's job to the complainant was her preference to work part-time, and her perceived inability to work full-time. Her parental status and her family responsibilities, in turn, gave rise to her preference to work part-time and the perception that she could not realistically work full-time. A preference for part-time work and a perceived inability to work full-time are not attributes within the meaning of s.7 of the Act; they are a consequence, or characteristics - to use the language of s.8(a) - of attributes. The result is that, as s.10 and s.11 of our Act (and their analogues) have been interpreted, this part of the case falls to be determined as one of indirect, rather than direct discrimination. It is the same point of principle as was raised in I on behalf of BI. There I said:

"19. It is clear on the evidence of both the Principal of the school and the Guidance Officer that the reason for the cancellation of BI's enrolment was his non-attendance. It is not therefore necessary to address other arguments as to the applicability of s.10 of the Act because even if the cancellation of enrolment otherwise amounted to direct discrimination, it was not "on the basis of an attribute" within the meaning of ss.8 and 10 of the Act - cf. Davies JA in JM v. QFG and GK. That case dealt with a woman who was refused treatment at an infertility clinic. She alleged the refusal amounted to direct discrimination on the basis of her lawful sexual choice, exclusive lesbianism. The Court of Appeal found that, upon proper analysis, the reason for the refusal of treatment was that the woman did not comply with the clinic's definition of infertility. This involved, inter alia, "the inability of a couple to conceive after twelve months of intercourse without contraception" - see the judgment of Thomas JA. The Court of Appeal found there was no direct discrimination, Davies JA said:

"What the President appears to have done is to conclude that, because it was exclusive lesbianism which, on the evidence of the second respondent, prevented the appellant from complying with the reason for treatment, exclusive lesbianism was the reason or a substantial reason, for refusal of treatment. That is neither logically nor legally correct. On the second respondent's evidence the reason why she was refused treatment was that she did not comply with the second respondent's definition of infertility. The reason why, in turn, she did not so comply was her exclusive lesbianism. But it is the first, not the second, which is the reason, and the only reason, for refusal. The second is not a reason for refusal as, in other cases, celibacy or the engaging in exclusively protected intercourse or the failure to maintain a relationship for 12 months would not be a reason for refusal. Each is merely one of the categories of person who does not comply with the reason for treatment, the sole reason for refusal being non-compliance with that reason, namely infertility as defined by the second respondent and others."

1. The same point of principle is made in the analysis by Deane and Gaudron JJ in Australian Iron and Steel Pty Ltd v Banovic. In that case an employer retrenched workers employed after 6 January 1981 and put workers who were employed after 30 September 1980 on notice that they would be next to be retrenched if the iron and steel market did not recover. It was contended that this amounted to direct discrimination on the basis of gender because the waiting period for employment with that employer, at all material times, was longer for women than for men. Thus it was argued:

"The first respondents were retrenched or put at risk of retrenchment because they lacked employment seniority; they lacked employment seniority because the recruitment practices of AIS, both before and after mid-1980, resulted in the waiting period for employment as an iron worker being longer for women then for men; therefore they were retrenched because they were women."

1. This argument was rejected by the High Court, Deane and Gaudron JJ said:

" ... in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.

Even if it could be said that a factor common to all or a significant proportion of those who are adversely affected by the decision of AIS to retrench by the "last on, first off" method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the analogue to s 10] applicable. ... There is no finding to that effect made by the Tribunal."

1. Thus, in that case, there was no direct discrimination. The reason for retrenchment was the time of employment. Women were more affected by the retrenchments because they were more likely to have been employed after men, but there was no direct discrimination; the case was one of indirect discrimination.

1. Likewise, here, the reason for the complainant's non-attendance was his impairment, but it was his non-attendance which was the reason for the cancellation of enrolment. The case is not properly characterised as one of direct discrimination."

[47] In Tung v State of Queensland,[34] Member Roney QC, after referring to Purvis and Educang, stated:

[50] These cases make clear that it is therefore necessary to look carefully at the "real reason" for why the Complainant was refused the paid leave he requested. If, as Section 10(4) of the Act says, there are 2 or more reasons why the person is acting, is a substantial reason one which was "on the basis of the attribute"?

[48] Similarly, in Jenkins,[35] Member Roney QC stated:

[57] As Justice McHugh said in Waters v Public Transport Corporation, 'on the ground of' and 'by reason of' require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of 'the victim'. The protected attribute, to use the language of the Act, must be at least one of the factors which moved the discriminator to act as he or she did. And, as his Honour said, of course, in determining whether a person has been treated differently 'on the ground of' that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then 'the ground of' the act of the discriminator was the status or private life of the victim.

[49] The Respondents have put in issue the real reason Dr Chilcott's further Hughenden assignment was cancelled. They contend it was cancelled, not because of Dr Chilcott's age, but because of his behaviour towards other persons when he was working at the Hughenden HS on 8 and 19 February 2021.

[50] The Respondents therefore submit, correctly in my view, that an issue in relation to this claim is why they '... cancelled Dr Chilcott's final Hughenden HS engagement.'[36] If the Respondent's contentions are correct, then that is a complete answer to this first claim of Dr Chilcott under the AD Act.

[51] Before I deal with that issue, there is another issue that should be dealt with at this point, namely, Dr Chilcott's submission that he was an employee of the Health Service.

The nature of Dr Chilcott's work relationship with the Health Service

[52] Dr Chilcott contended he was employed by the Health Service in the capacity of a Medical Superintendent with the Right to Private Practice ('MSRPP') on a casual basis at the Hughenden HS and at the Magnetic Island HS.[37] Dr Chilcott submits that he was an employee of the Health Service[38] and his evidence was that on 19 February 2021, Dr Lane had '... dismissed' him.[39] As best as I understand it, this contention and this submission are made because his status as an alleged employee of the Health Service goes to proving the discriminatory less favourable treatment he allegedly suffered contrary to the AD Act,[40] and to his claimed loss.[41]

[53] In relation to the discriminatory less favourable treatment Dr Chilcott claims he suffered, Dr Chilcott submitted that Dr Lane, in the changes he made to the after-hours rostering at the Magnetic Island HS demoted him '... from being MSRPP to being under the supervision of his junior doctor trainee.'[42]

[54] In relation to his claimed loss, Dr Chilcott submits that the termination of his contracts (by Dr Lane):

[W]as not only an enforced retirement it was a complete execution of Dr Chilcott's career with THHS, done with callous and malicious intent to destroy and defame Dr Chilcott's reputation as a founding and Senior Member of the Australian College of Rural and Remote Medicine ACRRM.[43]

[55] The Respondents contend[44] and submit[45] that Dr Chilcott was performing work for the Health Service under a contract between it and Global Medics Pty Ltd ('Global Medics') and that he was never, at the material time, an employee of the Health Service.

Dr Chilcott was not an employee of the Health Service

[56] As I understand his submissions, Dr Chilcott's contention is that he was an employee of the Health Service because there was no signed Service Standard Locum Contract between the Health Service and him as required by cl 7.4 of the Queensland Health's Human Resources Policy B45 entitled 'Locum Arrangements and Conditions - Medical Officers' ('the Locum Policy'); and because of the absence of such an executed document, the only document executed between him and Global Medics, a document entitled 'Annexure A - Locum Contract', was '...ultra vires, and null and void.'[46]

The standard locum contract (refer to the HR forms index) has been developed for use by the health service District to engage a locum through a locum placement/recruitment agency. The contract is to be negotiated and signed by the health service district delegate, after which a request form (Schedule 2 of the standard locum contract) can be used for individual locum engagements.

[58] The evidence of Ms Heather was that the Health Service's locum doctors are not employed by the Health Service, the Health Service engages locum doctors through agencies who employ the locum doctors, and the Health Service contracts with the locum agencies to provide the locum services the Health Service needs.[47] Ms Heather's evidence was that Dr Chilcott was engaged as a locum through such a locum agency, namely Global Medics.[48] Indeed, Dr Chilcott contended that Global Medics was his locum agency.[49]

[59] Ms Heather's evidence also was that from 21 November 2017, the Health Service had a standing offer arrangement with Global Medics to facilitate the provision of locum doctors for short-term assignments at the Health Service's hospitals.[50] Exhibit 'RH 1' to Ms Heather's affidavit was the Standing Offer Arrangement Deed between the State of Queensland, acting through the Department of Health, and Global Medics for the provision of locum medical officers and the recruitment of local medical officers through recruitment agencies ('the Deed').

[60] Schedule C to the Deed provided the Specification of the Standing Offer Arrangement Deed. Clause 4 of Schedule C to the Deed was headed 'LOCUM MEDICAL OFFICER (LMO)' and relevantly provided:

• at sub-cl 4.1.1, '...the LMO is either an employee or a subcontractor to the Supplier' where the 'Supplier' is Global Medics;

• at sub-cl 4.1.2, '... the LMO is not an employee of the Customer and is not placed on the Customer's payroll', where the Customer is the State of Queensland through the Department of Health;

• at sub-cl 4.2.1, that on '...the request of the Customer, the Supplier will provide a list of Candidates within an agreed time period.';

• at sub-cl 4.3.1, the '... Customer will formally notify the Supplier in writing when the Customer has selected a successful candidate'; and

• at sub-cl 4.4.1, the '... Supplier will obtain from the Candidate a signed 'Locum Agreement' form set out in Queensland Health's Human Resources Policy B 45 'Local Arrangements and Conditions - Medical Officers' and provide a copy to the Customer prior to the Candidate commencing their Locum Engagement.'[51]

[61] Furthermore, and relevantly to Dr Chilcott's particular claim of unlawful age discrimination by Dr Lane's decision to cancel the further Hughenden assignment, cl 4.14 of Schedule C to the Deed provided:

4.14.1 A Locum Engagement[52] may be terminated by the Customer with a minimum of twenty four (24) hours' notice if;

4.14.1.1 the LMO fails to comply with the Code of Conduct for the Queensland Public Service or Customer policies and procedures, or if the standard of a Health Service provided by the LMO falls below an acceptable standard, in the reasonable opinion of the Customer in these circumstances, the Supplier must arrange for the LMO to be replaced if required, by another Candidate with appropriate skills and experience at no additional cost to the Customer. The timeframes for Candidate replacement will be negotiated with the Customer.

4.14.2 Except in the case of clause 4.14.1 the Customer will provide the Supplier seven (7) calendar days' notice if a Locum Engagement is no longer required. A lesser period may be negotiated.[53]

[62] Ms Heather stated (Exhibit 6, paras. 12-18) that by the standing offer arrangement, the Health Service would enter a signed contract with Global Medics for it to provide a locum doctor at one of its hospitals during particular dates. The formalities included:

• the Health Service's written request to Global Medics to fill a locum assignment; and

• the execution by the doctor and Global Medics of a document entitled 'Annexure A - Locum Agreement'[54] which set out the doctor's obligations to the Health Service as a locum.

[63] Ms Heather's evidence (Exhibit 6, para. 21 and exhibit 'RH 3') was that this was the process by which Dr Chilcott was engaged as a locum at the Hughenden HS and at the Magnetic Island HS in 2020 and 2021. In my view, the formalities and process by which Dr Chilcott was engaged to work as a locum medical practitioner for the Health Service, as described by Ms Heather in her evidence, are consistent with cl 7.4 of the Locum Policy.

[64] Ms Heather's evidence was consistent with the evidence of Dr Lane. Dr Lane's evidence was that Dr Chilcott was not employed by the Health Service but was employed by Global Medics; and that Dr Chilcott worked as a locum in place of the Medical Superintendents with the Right to Private Practice at the Hughenden HS and at the Magnetic Island HS who were employees of the Health Service, but who were on leave or not available.[55]

[65] There is no evidence that tends to prove that Dr Chilcott was an employee of the Health Service. This includes the unchallenged evidence of Ms Heather referred to above. Furthermore, the documents executed between Dr Chilcott and Global Medics Entitled 'Annexure A - Locum Agreement' at paragraph (r) provided that Dr Chilcott agreed:

[T]hat at times while I am performing a Locum Assignment and am being engaged by the Service to do so, that:

(i) I will not be an employee or contractor of the Service; and

(ii) the Service has no obligation to remunerate or otherwise pay any fees to me in respect of the services I perform or reimburse me any expenses.[56]

[66] There is no evidence of any contractual relationship between the Health Service and Dr Chilcott by which Dr Chilcott would perform work for the Health Service. Indeed, all the evidence referred to above is the other way and that the contractual relationship for Dr Chilcott to perform work for the Health Service came about because of a direct contractual relationship between Dr Chilcott and Global Medics.

[67] Dr Chilcott did not lead any documentary evidence of the nature of his legal relationship with Global Medics. However, having regard to the terms of the Deed, Dr Chilcott was either an employee of Global Medics, or he was a contractor to Global Medics.

[68] For the above reasons, I find that Dr Chilcott, at all times material to his complaint, was not an employee of the Health Service.

What was the real reason Dr Lane cancelled the further Hughenden assignment?

Dr Chilcott's locum engagements for the Health Service

• on 6 August 2020, Global Medics emailed Dr Chilcott and asked him if he was interested in filling an urgent temporary vacancy at the Hughenden HS and on the same day, he agreed to fill the vacancy, which was from 10 August 2020 to 26 August 2020;[57]

• subsequently, Dr Chilcott, between August 2020 and April 2021, undertook another 11 locum short term assignments for the Health Service at the Hughenden HS and also at the Magnetic Island HS;[58]

• one of those short term assignments undertaken by Dr Chilcott for the Health Service was at the Hughenden HS from 8 February 2021 to 19 February 2021;[59] and

• another short term assignment was to be undertaken by Dr Chilcott at the Hughenden HS from 5 March 2021 to 19 March 2021[60] (in these reasons referred to as 'the further Hughenden assignment' or 'Dr Chilcott's further Hughenden assignment').

[70] The Respondents submit that, on the evidence, Dr Lane cancelled the further Hughenden assignment to be performed by Dr Chilcott from 5 March 2021 to 19 March 2021 because, as a result of reports received by Ms Heather and Dr Lane from Ms Petrie about two incidents concerning Dr Chilcott's conduct towards two nurses at the Hughenden HS which took place on 8 and 19 February 2021, they (Ms Heather and Dr Lane) formed the view that Dr Chilcott's behaviour was a risk to patient and staff welfare. The Respondents further submitted that, as a consequence, and consistently with Ms Petrie's belief that Dr Chilcott could not return to work at the Hughenden HS, Dr Lane and Ms Heather decided that the Health Service would cancel the further Hughenden assignment. [61]

[71] Dr Chilcott submits that much of Ms Petrie's evidence given to the Commission about the above matters is '... simply exaggerated hearsay reports, or is plainly at variance with the documented facts.'[62] Dr Chilcott also submits that in respect of the incidents that occurred on 8 and 19 February 2021 that were the subject of Ms Petrie's evidence, he did not do anything wrong such that there was no reason why his behaviour warranted the cancellation of the further Hughenden assignment.[63]

[72] Dr Chilcott then submits that the real reason Dr Lane cancelled the further Hughenden assignment (and also why the change was made by Dr Lane to the after-hours rostering at the Magnetic Island HS), namely his age, is revealed:

• in correspondence drafted in November 2020 (but unsent) by Dr Lane to a patient who complained about him when he was at the Magnetic Island HS in September 2020 in which Dr Lane stated he (Dr Chilcott) was '...an older doctor close to retirement';

• in an email Dr Lane sent on 19 February 2021 to Ms Nakia Hill, who was the Health Service's Locum Coordinator ('Ms Hill') when he stated that he thought Dr Chilcott '... should retire'; and

• by a further email Dr Lane sent to Dr Jay Short of the Health Service ('Dr Short') on 24 February 2021, where he stated that Dr Chilcott was '... an older GP who would benefit from some first called by Jay to decrease the impact of fatigue.'[64]

[73] Ms Petrie has been the Director of Nursing at the Hughenden HS since March 2020[65] and her first recollection of working with Dr Chilcott was in August 2020 and then for two weeks in November 2020 before his final placement at the Hughenden HS in February 2021.[66]

[74] Ms Petrie gave evidence about two incidents concerning Dr Chilcott, on 8 February 2021 and on 19 February 2021, when he was engaged as a locum at the Hughenden HS.

[75] Ms Petrie's evidence in chief about the incident on 8 February 2021 was:

1. On 8 February 2021, Ms Katherine Herrod, a clinical nurse at Hughenden HS, came to my office to talk to me about an incident that had occurred between Dr Chilcott, Ms Herrod and a patient.

1. Ms Herrod told me that earlier that day Dr Chilcott had given her a phone order for some medication for a pregnant patient. Ms Herrod had then checked on MIMS - which is a drug reference system that medical professionals use - and discovered that the medication could cause harm to the patient's unborn child. Ms Herrod then called Dr Chilcott to question his order, but Dr Chilcott told Ms Herrod to give the patient the medication unless the patient refused. Ms Herrod then told the patient that the medication could harm her child, and the patient refused the medication. After that, there was a confrontation between the patient and Dr Chilcott, which Ms Herrod was present for.

1. I asked Ms Herrod to put her account in a letter to me or a file note. On 10 February 2021, she sent me two letters incorrectly dated 10 February 2020. The first letter set out her account of what had happened. The second letter was the same as the first with additional notes in red. Attached to this affidavit and marked 'KP 1' is a copy of the second letter.

1. About five minutes after Ms Herrod left my office, I walked down the ward. When I arrived, Dr Chilcott and Ms Herrod were standing in the corridor outside of the patient's room talking loudly to each other about the interaction with the patient. At one stage, Dr Chilcott called the patient 'a bitch'.

[76] Following the above interaction referred to by Ms Petrie in her evidence, she spoke to Dr Lane and sought his advice about dealing with Dr Chilcott. Ms Petrie's evidence was that she also wanted to let Dr Lane know about what happened because he and Ms Heather were responsible for making decisions about Dr Chilcott's engagement.[67]

[77] The next day (9 February 2021), Ms Petrie sent an email to Dr Lane and Ms Heather about the incident and on the same day, following an email response from Dr Lane, spoke to Dr Chilcott about participating in a debrief. [68] Ms Petrie then sent a further email to Dr Lane about that conversation she had with Dr Chilcott about participating in a debrief.[69]

[78] Ms Heather confirmed that she received the above-mentioned email from Ms Petrie on 9 February 2021.[70]

[79] Ms Petrie then sated that on 23 February 2021 she sent Dr Lane a further email setting out her concerns with Dr Chilcott's behaviour on 8 February 2021 (and also the subsequent incident that occurred on 19 February 2021 discussed later in these reasons) in which she attached, amongst other documents, Ms Herrod's account of what occurred on 8 February 2021.[71]

[80] Ms Heather also stated that on 28 February 2021 she received an email from Dr Chilcott which, amongst other matters, referred to this event.[72] In that email, Dr Chilcott relevantly stated:

The patient is known to me and, only a couple of weeks prior to this aggressive outburst incited and inflamed by Nurse Kate, the same patient, when requesting a repeat script for her antidepressants, was informed that there was a warning that her antidepressant has been implicated in causing teratogenic deformities of the foetus. The patient replied that she did not care as she wanted her antidepressants, regardless of the warning. I quote from this documented consultation that occurred in the private practice to emphasise the degree of damage caused by the incitement, whether intentional or unintentional, was clearly caused by Nurse Kate's "loose lips".

I must admit that on receiving the barrage of accusations from the patient I may have let go a couple of expletives myself referring to Nurse Kate as a "f.... witch". Given the extreme nature of Nurse Kate's unprofessional behaviour I feel justified in that reactionary outburst. I quickly calmed myself and I immediately went to the nurses' desk where some of the others were frantically looking up the pregnancy warnings for Ketorolac and obviously, they learned, (possibly) for the first time in their careers, that warnings for the occasional use of Ketorolac only existed in relation to early and late pregnancy, not at the state of the patient's pregnancy at the time in question. From the looks of their downtrodden faces, I felt that they were beginning to appreciate the damage that had been done by irresponsibly providing the patient with "FAKE INFORMATION".

The significance in relation to this notification to you as Service Group Director is that I did not make a formal complaint about Nurse Kate's obvious unprofessional behaviour and clearly stated to both Nurse Kate and the patient that I refused to treat or manage the patient until I received and [sic] apology and a commitment to behave properly.

I have not received an apology or a commitment to behave properly from either the patient or Nurse Kate. Now, if the message I received from Administration staff is correct, Nurse Kate has now joined forces with Nurse Karen Struthers to effectively "sack" the Medical Superintendent based entirely upon Dr Paul Lane's NON-INVESTIGATION of the case of abusive [sic] patient and Nurse Kate's incitement.[73]

[81] Dr Lane, in his evidence, confirmed that on 8 February 2021, he spoke to Ms Petrie about this incident, that on 9 February 2021, Ms Petrie sent him an email about the incident and that on the same day he recommended to Ms Petrie that she organise a group debrief and that Ms Petrie, on 23 February 2021 send a further email providing further details about the incident.[74] In that latter email, Ms Petrie relevantly stated to Dr Lane:

The first issue we had on the 9/02 with an ED presentation of a young 14 week pregnant patient presenting with acute headaches, There was an altercation between patient and Doctor who became quite loud and abusive language [sic] toward the patient. This caused concerns with the patient's partner and nursing staff had to de-escalate his growing anger.[75]

[82] Dr Chilcott gave some evidence in chief about this incident and stated that:

• on 9 February 2021 he told Ms Petrie that on 8 February 2021, Ms Katherine Herrod ('Ms Herrod' and who Dr Chilcott referred to in his email to Ms Heather sent on 9 February 2021 as 'Nurse Kate') incited the patient to become quite aggressive by telling her that the medication he had prescribed could harm or possibly kill her unborn baby;[76] and

• Ms Herrod '... neither had the knowledge nor the cognitive ability to understand the information she had told the patient, and her responsibility to the patient should have been to tell me of her fears, not tell the patient' and if Ms Herrod had done so, that would have allowed Dr Chilcott to choose another medication alleviating any doubt she (Ms Herrod) might have had '... concerning her bizarre beliefs re-patient safety, and avoided a catastrophic event.'[77]

[83] Dr Chilcott was cross-examined about this incident. The transcript records:

Later on in the day you attended the hospital?‑‑‑That's correct.

There you found out that Ms Herrod had told the patient that the medication you'd originally prescribed could harm the patient's child?‑‑‑Yes.

And because of that the patient had refused the medication?‑‑‑Yes.

You then reviewed the patient at a later point?‑‑‑Yeah, that - there are some missing steps there, but - um - but I can do - I can address them later.

Well, you reviewed her about lunchtime?‑‑‑Yes. I was - I was having my lunch. It was - um - it was an in-service - um - and I was - I just - I was having lunch and it was an in-service at the same time.

When you reviewed the patient, she was there with her partner?‑‑‑Yes.

During the review, the patient called you names?‑‑‑Yes.

And both the patient and her partner were angry at you?‑‑‑Very.

And as a result you left?‑‑‑I - I immediately left, yes. It - addressing the - the - I addressed the aggravation and left.

And the reason is you wanted to stop the treatment that you were receiving?‑‑‑Yeah. Yes, yes.

So shortly after you left, you spoke to Ms Herrod about the patient?‑‑‑Yes.

And at the time you were frustrated with the patient?‑‑‑No.

And you were frustrated with their behaviour towards you?‑‑‑No.

So during that discussion you referred to the patient as a bitch?‑‑‑No.

And you called her a fucking witch in the ward outside the patient's room?‑‑‑No.

So you swore at Ms Herrod. You accept that. Ms Herrod is a junior colleague?‑‑‑Yes.

And you swore at her directly to her face?‑‑‑No. It wasn't directly to her face, but it was directly to her.

And when you swore, you did so loudly?‑‑‑Yes.[78]

Well, the circumstances here are that you're an experienced doctor; is that right?‑‑‑Correct.

And you're having an interaction - sorry, you're an experienced doctor. You're the sole doctor at the hospital?‑‑‑Yes.

And you're having an interaction with a junior colleague?‑‑‑Yes.

And I'd suggest that that, swearing directly at a colleague in those circumstances, is unprofessional. Would you agree with that?‑‑‑No, I don't.

Would you agree that it's inappropriate?‑‑‑It's not the word I'd use. But it's getting close, but it's not the word I'd use.

When you were having this discussion - when you called Ms Herrod a fucking witch, Ms Petrie was close by, Karen Petrie?‑‑‑I don't believe so but I can't rule it out.

And it's possible that she witnessed the entire discussion that you had with Ms Herrod?‑‑‑No, I don't - I don't think so.

Why don't you think so?‑‑‑Because the place that it took - took place in was in the tea room in the - where we were having lunch.[79]

[84] Ms Petrie was cross-examined by Dr Chilcott about the incident on 8 February 2021.[80] Ms Petrie relevantly stated that:

• she sought advice from Dr Lane about how she should approach the issue between Dr Chilcott and Ms Herrod;[81] and

• Dr Lane suggested that they have a debrief.[82]

[85] Dr Chilcott did not rely on an affidavit from him replying to Ms Petrie's evidence. Dr Chilcott did not cross-examine Ms Petrie about her evidence that when he was speaking to Ms Herrod about the patient, he referred to the patient as '...a bitch.' Ms Petrie's evidence about this issue was put to Dr Chilcott in cross-examination. As a consequence, as submitted by the Respondents,[83] Ms Petrie's evidence that Dr Chilcott referred to the patient as '...a bitch' is unchallenged. As a general proposition, unchallenged evidence which is not inherently incredible ought to be accepted unless facts otherwise established by the evidence or particular circumstances point to its rejection.[84] In my view, Ms Petrie's evidence about Dr Chilcott referring to the patient as '...a bitch' is not inherently incredible. I form this view because the circumstances, at the material time at the Hughenden HS on 8 February 2021, were obviously tense from Dr Chilcott's point of view regarding the medication issue. On Dr Chilcott's own evidence in cross-examination, the patient called him names, the patient and her partner were angry and aggressive towards him and he swore directly at Ms Herrod calling her a '...fucking witch' in respect of her involvement in the matter. In addition, there is no other evidence or particular circumstances which point to the rejection of this aspect of Ms Petrie's evidence. In particular, I do not accept Dr Chilcott's denial that he referred to the patient as '... a bitch.' Dr Chilcott's monosyllabic denial in court does not sit well with what Dr Chilcott stated to Ms Heather in his email to her on 28 February 2021, referred to earlier in these reasons at paragraph [80], namely, that on receiving the barrage of accusations from the patient, '... I may have let go a couple of expletives myself' and that he stated to the patient that he refused to treat or manage the patient until he had received, from the patient, an apology and a commitment to behave properly.

[86] On the evidence before me, I find that on 8 February 2021, at the Hughenden HS:

• the patient, at the centre of this incident, and her partner were angry with Dr Chilcott and called him names;

• - Ms Herrod incited the patient to become quite aggressive by telling her (the patient) that the medication he had prescribed for the patient could harm or possibly kill her unborn baby; and

• - Ms Herrod did not have the knowledge to make such a statement to the patient; and

• after he was verbally abused by the patient and her husband, Dr Chilcott reacted to what he believed Ms Herrod had told the patient by directly swearing at her (Ms Herrod) in a loud voice, calling her '...a fucking witch';

• at a later point in time on 8 February 2021, when Dr Chilcott and Ms Herrod were outside the patient's room, he referred to the patient as '...a bitch'; and

• after Ms Petrie had provided a verbal report to Dr Lane about the incident, Dr Lane emailed Ms Petrie recommending a group debrief between Dr Chilcott and Ms Herrod.

1. At about 9:00 am on 19 February 2021, I was on a day off when I received a call from Ms Karen Struthers, a clinical nurse at Hughenden HS. She told me that there had been an incident with Dr Chilcott at the hospital.

1. Specifically, Ms Struthers told me that Dr Chilcott had gone to the hospital that morning, which was after his locum placement had ended. When he was there, he found out that his replacement locum, Dr Scott Finlay, had changed a palliative care patient's medication.

1. Relevantly, there had been a minor issue in the previous days between nursing staff, including Ms Struthers, and Dr Chilcott in relation to the palliative care patient's medication. Dr Chilcott had been prescribing the patient droperidol. The nursing staff at Hughenden HS were more familiar with haloperidol instead. Attached to this affidavit and marked 'KP 3' is a copy of the patient's relevant clinical records with the patient's identifying features redacted.

(a) approached Ms Sarah Roil, a nurse at Hughenden HS, at the nurses' station;

(b) yelled at Ms Roil for changing the patient's medication; and

(c) picked up and thrown a text that Ms Roil and Ms Struthers had at the nurses' station and had been referring to in discussion with Dr Chilcott about the medication.

1. Ms Struthers also said that as a result of Dr Chilcott's behaviour, Ms Roil had broken down, was off the ward and could not work.
2. Shortly after, I went to Hughenden HS. My first priority was to check on Ms Roil, who was in the nurse [sic] quarters, which are behind the hospital.
3. When I saw Ms Roil, she told me that she had never been spoken to by a doctor like that and it was very confronting. By that time, she was not teary, and had calmed down. But she kept saying to me that she was sorry. I told her that I just wanted to make sure she was okay, and that if she needed to take a bit of extra time, I would step in and cover the floor until she was ready.
4. Ms Roil returned to the ward soon after we spoke. She was off the ward for about two to three hours.

[88] Ms Petrie's evidence then was that at 3.55 pm on 19 February 2021, she sent an email to Dr Lane to advise him of that incident.[85] In that email, Ms Petrie stated:

Sorry to contact you on a day off. I have an issue here with Dr Chilcott and nursing staff and at present have an agency nurse so distressed that we have had to send her off the floor to calm down.

I was contacted by staff as I am on an RDO seeking some advice. The new Locum has arrived and nursing staff were going through orientation and medication charts with him and requested he look at the prescribed medications in a syringe driver for our palliative patient. The prescription has been a concern with staff and the palliative care unit and the new Locum Scott agreed with concerns and was happy to change the script.

Dr Chilcott then literally screamed the ward down and was verbally aggressive and abusive to the agency nurse to the point where she has broken down and needed to get off the ward.

I contacted RHSG but you are on a day off. If not possible to speak with you would you advise who I may be able to talk to with as this even after discussions with Dr Chilcott [sic] is getting worse. I know getting Doctors to relieve out here has been a difficult process but I am concerned with him returning.

I have referrals and other pieces of information which I am happy to forward to you with some of the concerns.[86]

[89] Dr Lane, in his evidence, confirmed that he received the above-mentioned email from Ms Petrie.[87] Dr Lane's further evidence was that he read the email as soon as he received it, he then called Ms Petrie and during that call Ms Petrie further explained Dr Chilcott's behaviour. Dr Lane further stated that Ms Petrie told him that she did not want Dr Chilcott to return to the Hughenden HS and that, in response, he told Ms Petrie he would '... talk to our Locum Coordinator about what we could do.'[88]

1. On 19 February 2021 at 4:05 pm, I sent an email to Ms Hill about Dr Chilcott. I said that I had spoken with Ms Petrie about the incident with Dr Chilcott and said 'it would appear Peter's behavior [sic] was quite bad. I don't think we can use him anymore,' I then asked whether Dr Chilcott had any upcoming locum placements,
2. At 4:11pm, I received a response from Ms Hill with a list of Dr Chilcott's upcoming placements. It included further placements:

(b) at Magnetic Island HS between 22 March 2021 and 1 April 2021; and

1. At 4:27pm, I sent a response to Ms Hill noting that I hoped to have a local solution for the Magnetic Island HS placements. I then asked if Ms Hill thought we would be able to engage a locum to take the Hughenden HS placement.

1. By 'local solution' I meant that the Group was hoping to move away from engaging locums for Magnetic Island clinic, Engaging locum doctors is expensive for Townsville HHS. If possible, it is better to use local doctors employed by Queensland Health - which could include Townsville-based doctors. This also ensures consistency in medical services for the community. This had been an active plan of the Group since at least 10 December 2020, when I sent an email to Townsville-based general practitioners about working at Magnetic Island HS, Attached to this affidavit and marked 'PL 4' is a copy of an email chain between me, the Group and local general practitioners.
2. At 4:41pm, I received a response from Ms Hill stating that she would advertise the Hughenden HS placement and see if any locums were available.

[91] Ms Heather's evidence was that on about 21 February 2021, Dr Lane told her that he had spoken to Ms Petrie on the previous Friday about another incident with Dr Chilcott[89] and that on 1 March 2021 Ms Petrie sent her an email attaching Ms Sarah Roil's account of the incident on 19 February 2021.[90]

[92] Dr Chilcott gave his evidence in chief about this matter in his affidavit between paragraphs 70 and 94. In summary, Dr Chilcott's evidence is:

• 19 February 2021 was the last day of his assignment at the Hughenden HS, and when he arrived at the ward, Ms Roil was the ward nurse and they visited a palliative care patient during which time Dr Chilcott made the decision to continue the subcutaneous syringe driver medication for the patient, which included ordering the drug Droperidol;[91]

• Ms Roil reported to him that on the evening of 18 February 2021, the palliative care patient had symptoms of nausea and vomiting;[92]

• later that day when he returned to the ward, Ms Roil, when she was preparing the medication for the syringe driver, informed him that another nurse, Ms Karen Struthers objected to the use of Droperidol as it was only recommended for intra-muscular and intravenous routes, following which he had a telephone conversation with Ms Struthers and stated that he was happy to continue using Droperidol;[93]

• he then left the ward and when he returned Ms Roil apologised to him because she was unable to prepare the subcutaneous syringe driver medications as none of the senior nurses were prepared to check the medication with her;[94] and

• he was then '... accosted' by certain unnamed nurses with '...a book' stating that they just discovered that morning that the subcutaneous use of Droperidol was not recommended, and after reading the section on Droperidol (presumably in the book referred to) he decided that there was no patient safety issue with the continued use of Droperidol for the patient.[95]

[93] Dr Chilcott then gave the following evidence:

1. As this was the very first time in my entire medical career that nursing staff had collectively refused to give a patient medication I had ordered I was very angry and upset and told Karen Struthers in no uncertain terms, that I felt obliged to notify the Australian Health Practitioners Agency about the incident, as I considered the countermanding (refusal to give) my prescribed medication was unreasonable and unprofessional, and that I had an obligation to notify AHPRA.

1. Nurse Sarah Roil described my reaction to Karen Struthers' refusal to administer my lawful medication instructions in her report (reference to Document PBC-14 mentioned earlier in this affidavit) unaware that nurse Karen Struthers who had quietly assumed a position behind her, had suddenly appeared into my field of view. I was speaking louder than normal to ensure that Karen Struthers actually heard that I was going to report her to AHPRA.

1. Sarah Roil apparently was unaware of what was going on behind her back, and thought that I was blaming her for everything. As nurse Sarah Roil had apologised to me for insisting that Karen Struthers look up the Drug Handbook, I realised why she had acted in the way that she did, and so I reacted accordingly. Sarah Roil accurately stated in her report (Document PBC-14) that immediately after we both saw Karen Struthers walk by, that Dr Chilcott: "seemed to change his tune and tell me that I hadn't done anything wrong and I was good and toned his voice down..."

1. The reason I was talking so loudly was because I saw nurse Karen Struthers lurking about coming from the drug room behind nurse Sarah Roil.

[94] Dr Chilcott was cross-examined in detail about this event.[96] The transcript records:

Can I get you to turn to paragraph 89 of your affidavit, which is at page 151 of the court book?‑‑‑Okay. Yep.

In that passage you say that you - in that paragraph, rather, you say that you were very angry and upset. Is that not at the time you were talking about now?‑‑‑Well - how about I put a time - time sequence on this.

That's exactly what I've just asked?‑‑‑Okay. I arrived. I was angry. I wanted to confirm their finding that it was not recommended. I wanted to review the reasons why it was not recommended, and when I found there were no reasons why it was not recommended - and - and - and that the only objection previously had been that it was off - off label, or whatever you want to call it, which means nothing, I started to get upset, and I started to get a little bit angry, because wasn't Sarah Roil who then refused to give it, it was Karen Struthers who refused the other nurses to administer it. Karen Struthers was the one preparing the syringe driver medication that I had - the order that I'd written earlier in the ward round that morning at 8 o'clock.

And in your affidavit you say you were very angry?‑‑‑Yes.

---at this point? And you were talking loudly?‑‑‑Yes.

Others would have been able to hear you - others around the nursing - the nurse station would have been able to hear you?‑‑‑Well, when you say others ‑ ‑ ‑

Had there been other people in the vicinity of the nurse station, would they have been able to hear you? Were you talking loudly enough for them to hear?‑‑‑No, I wasn't because there - there was two patients in the - in the hospital at that time.

Sorry, I didn't mean patients, I meant other people generally. It could have been other nurse, could have been patients, could have been family of patients?‑‑‑They weren't - if there - they weren't there.

You say there were no - there was no-one else there?‑‑‑No.

You said that you during - sorry. I might go back very specifically. You're talking loudly and angrily ?‑‑‑Yes.

You said you didn't appreciate junior nurses undermining your practice?‑‑‑Absolutely.

You said you didn't appreciate being told what you can and can't do?‑‑‑Yes.

You said you had never experienced such bullshit of nurses telling you what to do?‑‑‑Yes.

You said you didn't need the money you were earning to be dealing with the crap you were dealing with?‑‑‑Yes.

You acted in a way that made Ms Roil feel uncomfortable?‑‑‑No.

Or that may have made Ms Roil feel uncomfortable?‑‑‑No.

Ms Roil started to cry?‑‑‑Yes. Well, not openly cry. She was upset.

After you had said all of those things, swore multiple times and done all of those things?‑‑‑Yes, but I'd said them to the person who was behind her, which was Karen Struthers.[97]

[95] In further cross-examination, Dr Chilcott stated:

• his conduct was directed at Ms Struthers but that it was done at a time Ms Roil was in front of him;[98] and

• he disagreed with the proposition that it was inappropriate to speak to any person in such a way at the nurse station and further stated that, under the circumstances, he thought it was '... appropriate that I expressed a bit of anger'.[99]

To talk loudly and angrily, to swear multiple times, to tell someone things such as you've never experienced such bullshit of nurses telling you. You think that's appropriate. Is that what you're saying?‑‑‑Yes, I do think that's appropriate.

And it was appropriate to do it at a nurses' station, somewhere where other people could have overheard?‑‑‑There were no people to overhear it, and I don't think that that's - that's relevant.

And it was actually inappropriate to speak in that way at all?‑‑‑No. At all?

I'm suggesting that it was - it would never be appropriate to talk to a colleague, junior colleague, in the way that you did. It's a question of whether you agree or disagree with that proposition?‑‑‑I can give you an example.

Well, do you agree or disagree with the proposition that it's never be appropriate to talk to a junior colleague in the way in which you did?‑‑‑No, I don't agree that it's never - that it's never appropriate.[100]

• on the morning of 19 August 2021, Dr Chilcott became angry and upset when he discovered that Ms Roil did not subcutaneously administer Droperidol to a palliative care patient, as he had earlier directed Ms Roil to do, because none of the senior nurses were prepared to check the medication with her (Ms Roil);

• subsequently on that morning, while Ms Roil was in front of him and Ms Struthers was behind her, Dr Chilcott, in a loud voice and in an angry manner, told Ms Struthers that he was going to report her to the Australian Health Practitioners Regulation Agency for the reason that he did not appreciate junior nurses undermining his practice and he did not appreciate being told what he could and could not do;

• in speaking loudly and angrily to Ms Struthers, he said he had '...never experienced such bullshit of nurses telling' him what to do and he swore multiple times and, in the circumstances, he thought it was appropriate he act that way; and

• in the course of what occurred, as I have found in the last two dot points immediately above, Ms Roil became upset and had to stay off the ward for about two to three hours.

Dr Lane and Ms Heather's decision to cancel Dr Chilcott's further Hughenden assignment

[98] The undisputed evidence is that a decision was made by Ms Lane and Ms Heather on 22 February 2021 that Dr Chilcott's further assignment at the Hughenden HS was to be cancelled.

[99] Dr Lane gave evidence about his reasons for the decision. Dr Lane's evidence was that on Monday 22 February 2021, he spoke to Ms Heather about Dr Chilcott's behaviour and Ms Petrie's request that he not work at Hughenden HS again.[101] Dr Lane's evidence was that his view was that Dr Chilcott could not work at Hughenden HS again and that as the Director of Nursing at the Hughenden HS, he respected Ms Petrie's request in that if she thought that Dr Chilcott did not work at Hughenden HS again, then '... we had to try and replace him.'[102]

[100] Dr Lane's further evidence was that he also thought that it was appropriate to cancel Dr Chilcott's Hughenden HS placements because his behaviour was so poor that '... we could not put him back in that environment.'[103]

[101] Dr Lane stated that the decision to cancel Dr Chilcott's further Hughenden assignment was for two reasons. First, in Dr Lane's view, everyone should feel safe in the workplace and he believed Dr Chilcott's actions, '... which caused a nurse to break down, meant that nurses may not feel safe working with him. As a result, Dr Chilcott could not return.'[104] Secondly, Dr Lane stated that there was also a patient safety risk in that in both incidents, Dr Chilcott was not communicating with nursing staff appropriately, and if the nursing staff and medical staff are not cohesive in their approach, that affects patient care.[105]

1. For those reasons, I supported the decision to cancel Dr Chilcott's Hughenden HS placement. Ms Heather and I spoke about this, and we agreed that Townsville HHS should cancel the Hughenden HS placement. I do not remember if I told Ms Heather why I thought that was necessary. To me, it was quite obvious.
2. During that conversation, Ms Heather also said we cannot keep Dr Chilcott on anymore, which was a reference to all of Dr Chilcott's placements with Townsville HHS. Given what we had been told about Dr Chilcott's behaviour in Hughenden HS, I supported the decision to cancel all of Dr Chilcott's placements for the same reasons I considered Dr Chilcott could not return to Hughenden HS.
3. The decision to cancel Dr Chilcott's placements was not related to Dr Chilcott's age. It related to his behaviour towards nursing staff and patients, particularly the incidents on 8 February 2021 and 18 February 2021. If a younger locum had behaved the same way, I would have supported a decision to cancel their placements for the same reasons I supported the cancellation of Dr Chilcott's placements.

[103] Ms Heather's evidence was that she and Dr Lane made up the Health Service's Rural Service Group Executive, a body that had the authority to terminate locum engagements.[106] Ms Heather further stated that because of the incidents on 8 February 2021 and 19 February 2021, she believed that Dr Chilcott's interactions with medical staff and patients at the Hughenden HS were unprofessional and inappropriate; and that those interactions created a significant risk to patients' welfare because Dr Chilcott could not work appropriately with Hughenden HS's staff to treat patients.[107] Ms Heather's further evidence was that the significant risk to which she referred arose for two reasons.

[104] First, Ms Heather stated that Dr Chilcott's behaviour on 19 February 2021 was so inappropriate, it caused Ms Roil to break down and to have to leave the ward; and that having a nurse unable to work in a small rural hospital could result in it being understaffed and not being able to provide necessary service to patients causing a significant risk to patient welfare, being a risk, on Ms Heather's evidence, which was caused by Dr Chilcott's behaviour.[108]

[105] Secondly, Ms Heather's evidence was that Dr Chilcott's behaviour indicated that there had been a considerable breakdown in the relationship between him and the nursing staff, a relationship, according to Ms Heather's evidence, which is important to ensuring the hospital is providing consistent and complete care to patients. Ms Heather stated that nursing staff are often required to raise issues with a doctor on behalf of their patients and if they are not comfortable in talking to a doctor, such communication is less likely to occur which is detrimental to patient welfare.[109] Ms Heather then stated that it was for these reasons that the Rural Service Group Executive (her and Dr Lane) made the decision to cancel Dr Chilcott's further Hughenden assignment.[110]

[106] Dr Lane's evidence was that after his discussion with Ms Heather on 22 February 2021 about Ms Petrie's request that Dr Chilcott not work at Hughenden HS again, he spoke to Ms Hill and asked her to cancel Dr Chilcott's Hughenden HS placement. On 23 February 2021, Dr Lane received an email from Ms Hill confirming that Dr Chilcott's Hughenden HS placement had been cancelled. On the same day he sent an email to Ms Jessica Baber, Dr Chilcott's locum agent from Global Medics, about the decision to cancel Dr Chilcott's Hughenden HS placement.[111] The process used by Dr Lane seems to be consistent with the process to terminate a locum engagement as provided for in cl 4.14 of Schedule C to the Deed set out in paragraph [61] of these reasons.

[107] As best as I understand Dr Chilcott's evidence, on 24 February 2021 he was informed by Ms Hill that he would not be returning to the Hughenden HS.[112]

[108] There is no dispute that on 8 March 2021, in response to an email she received from Dr Chilcott, Ms Heather sent a letter to Dr Chilcott informing him that his locum assignment at Hughenden HS has been cancelled as per his contract with Global Medics.[113]

The real reason Dr Lane cancelled the further Hughenden assignment was Dr Chilcott's conduct

[109] As best as I understand them, Dr Chilcott's submissions are that:

• in respect of the incident on 8 February 2021, there is insufficient reliable evidence to indicate that he did anything wrong such that there is no evidence as to why his behaviour warranted the cancellation of the further Hughenden assignment;[114]

• in respect of the incident on 19 February 2021, on the evidence, he reacted appropriately to Ms Struthers undermining his authority;[115] and

• having regard to the incidents on 8 February 2021 and 19 February 2021, there was no basis to cancel his further Hughenden assignment, and because of Dr Lane's evidence given in cross examination that, from his perspective, he (Dr Chilcott) was a competent clinician, the only reason that Dr Lane cancelled the further Hughenden contract was because of his age.[116]

[110] Again, as best as I understand Dr Chilcott's submissions, he submits that other evidence supports his case, namely, Dr Lane's expressed view of him as an older medical practitioner.

[111] This is said to be proven, firstly, by two letters drafted by Dr Lane to a patient who, in October 2020, complained about Dr Chilcott's consultation with them in September 2020 at the Magnetic Island HS.[117] While these letters were drafted by Dr Lane, neither of them were sent to the patient who made the complaint. [118]

[112] In the first of these draft letters Dr Lane relevantly stated:

Dr Peter Chilcott is an older doctor close to retirement. It has been his willingness to assist during the pandemic that has kept him working to support rural and remote communities. He has assisted the Townsville Hospital Health Service at other sites often at short notice. It could be said that without his support communities would be left with compromised access to senior medical office [sic] care. Peter has had a career spanning 40 years, including birthing and anaesthetics in the bush. He along with other Queensland Rural Generalist [sic] have led the way in preparing junior doctors to work rural and remotely. I have seen him provide excellent care however I do acknowledge his ability to provide 24 hour care may be compromised by his workload and his senior years. It is difficult these days to find senior medical staff willing to serve in a career of the 24 hour cradle to death medicine in the bush.

I will sit with our locum coordinator and develop a plan that works Dr Chilcott off our roster. I suspect this will trigger his retirement ('Dr Lane's first draft letter').[119]

[113] In the second of the draft letters, Dr Lane relevantly stated:

Dr Peter Chilcott is an older doctor close to retirement. It has been his willingness to assist during the pandemic that has kept him working to support rural and remote communities. He has assisted the Townsville Hospital Health Service at other sites often at short notice. It could be said that without his support communities would be left with compromised access to senior medical office [sic] care. Peter has had a career spanning 40 years, including birthing and anaesthetics in the bush. He along with other Queensland Rural Generalist [sic] have led the way in preparing junior doctors to work rural and remotely. I have seen him provide excellent care however I do acknowledge his ability to provide 24 hour care may be compromised by his recent high workload and his senior years. It is difficult these days to find senior medical staff willing to serve in a career of the 24 hour cradle to death medicine in the bush.

Peter and I have chatted about his impending retirement and I will continue to support him where I can with this difficult process. I know he plans to work some fine wood he has in his shed when he finishes with medicine ('Dr Lane's second draft letter').[120]

[114] Dr Chilcott then submits his claim is proven by Dr Lane's comment in his email to Ms Hill sent on 19 February 2021[121] in which he stated that he (Dr Lane) thought Dr Chilcott '...should retire' ('Dr Lane's email to Ms Hill'). [122]

[115] Dr Chilcott further submits his claim is proven by Dr Lane's comments in his email to Dr Short and to Ms Jennifer Greenhorn, Director of Nursing, Magnetic Island HS ('Ms Greenhorn') sent on 24 February 2021, in which Dr Lane stated:

Peter is an older GP who would benefit from some first call by Jay to decrease impact of fatigue.

Please have a look at the upcoming rosters and see what you can do ('Dr Lane's email to Dr Short and Ms Greenhorn').[123]

• based on the reports from Ms Petrie about the incidents on 8 February 2021 and 19 February 2021, Ms Heather and Dr Lane formed the belief that Dr Chilcott's behaviour was a risk to patient and staff welfare and that, consistently with Ms Petrie's request that Dr Chilcott not return to work at the Hughenden HS, they (Dr Lane and Ms Heather) decided that the Health Service would cancel Dr Chilcott's final Hughenden HS engagement (being the further Hughenden assignment);[124]

• accordingly, their evidence, as the relevant decision-makers, was that the decision to cancel Dr Chilcott's final engagement was because of the reports about his behaviour and was not about his age;[125]

• the Commission should, for the reasons they give in their submissions, accept the evidence of Ms Heather and Dr Lane about their reasons to cancel Dr Chilcott's further Hughenden assignment;[126] and

• Dr Chilcott's case is a circumstantial case, but where the circumstantial evidence is minimal in that the most significant circumstantial evidence is Dr Lane's First Draft Letter and Dr Lane's Second Draft Letter and where the other circumstantial evidence consists of Dr Lane's email to Dr Short and Ms Greenhorn.[127]

[117] In relation to the circumstantial evidence of Dr Lane's First and Second Draft Letters, the Respondents submitted:

• two interpretations of the letters may be open, the first being that they disclose an intention to work Dr Chilcott off the Health Service roster because of his age, and the second being that Dr Lane intended to limit the use of locums at the Magnetic Island HS which would result in Dr Chilcott not working there anymore, with the consequential result that Dr Chilcott may retire; and

• the second interpretation is the preferable one for three reasons:

• - first, the statement referring to working Dr Chilcott off the roster needs to be interpreted in its context in which there are three important features:

• the first being that Dr Lane was trying to reduce the use of locums at the Magnetic Island HS;

• the second being that Dr Lane was responding to a patient who had complained strongly about Dr Chilcott's communication with them during recent treatment and was attempting to ease the patient's concern about Dr Chilcott; and

• the third being that Dr Lane new that Dr Chilcott was planning to retire soon; and

• - secondly, Dr Lane's words do not disclose an intent to stop engaging Dr Chilcott because of his age rather, the draft states that Dr Lane wants to work Dr Chilcott and other locums off the Magnetic Island HS roster; and

• - thirdly, the draft does not disclose an intent to remove Dr Chilcott from the Health Service's services, just from the Magnetic Island HS.[128]

[118] The Respondents, in their Outline of Argument filed on 23 May 2025, also submitted:

[23] Finally, even if the Commission finds that the draft letter evinces an intention to discriminate, it is not strong enough to support a finding that the respondents discriminated against Dr Chilcott by cancelling his engagements for two reasons.

[24] First, before making such a finding, the Commission would have to reject the respondents' evidence regarding why they cancelled Dr Chilcott's engagement because that evidence is inconsistent with such a finding. That will require a finding that each of Ms Petrie, Dr Lane, and Ms Heather were dishonest witnesses.

[25] Second, such a finding would require heavy reliance on Dr Lane's reasons in circumstances where he was not the key decision maker. Rather, it was Ms Petrie who instigated the decision by making her reports and raising her concerns about Dr Chilcott returning, and Ms Heather who first made the decision that all Dr Chilcott's engagements needed to be cancelled, which Dr Lane agreed with.

[26] For those reasons, the correspondence does not support Dr Chilcott's claim.

[119] In relation to Dr Lane's email to Dr Short and Ms Greenhorn, the Respondents submitted that:

• Dr Lane, in noting that Dr Chilcott is '... an older GP', does not evince an intention to cancel Dr Chilcott's further Hughenden assignment because of his age; and the email is not consistent with such a decision in that the effect of the entire email is to put in place an on-call arrangement to address fatigue, not to cancel Dr Chilcott's engagements;[129] and

• the more probable reason for Dr Lane's reference to Dr Chilcott's age is Dr Lane's knowledge regarding the links between age and fatigue as supported by his expressed concerns (in the email) about Dr Chilcott being fatigued.[130]

[120] The Respondents concluded by submitting (footnote omitted):

1. Even the overall effect of this circumstantial evidence does not support Dr Chilcott's case as it cannot exclude the more probable reason for Dr Lane's repeated reference to Dr Chilcott's age being its link to his concerns about fatigue. Further, it does not give a logical or rational basis to support a contention that Dr Lane decided to cancel Dr Chilcott's engagement because of his age. Two pieces of evidence run counter to such an inference:

(a) the strong evidence of the more likely reason for the cancellation of Dr Chilcott's engagement, being his reported behaviour; and

(b) the evidence that Dr Lane had no issues with Dr Chilcott's clinical skills and considered Dr Chilcott had provided excellent care to patients. As a matter of common sense, the way to deal with an older locum who is showing minor symptoms of fatigue but is otherwise providing excellent care is to put in place a system that decreases the potential impacts of fatigue, not remove the provision of their excellent care to patients.

1. For these reasons, even if the Commission rejects the respondents' case, it could not be satisfied that the respondents cancelled Dr Chilcott's last Hughenden HS engagement because of his age.

[121] Dr Chilcott's inferential case of age discrimination in respect of the cancellation of the further Hughenden assignment is twofold.

[122] First, Dr Chilcott's case is that the inference can be drawn that his further Hughenden assignment was cancelled on the basis of his age because:

• in respect of the incident on 8 February 2021, he did not do anything wrong;

• in respect of the incident on 19 February 2021, he acted appropriately to Ms Struthers undermining his authority; and

• Dr Lane's evidence that he was a competent clinician.

[123] Secondly, Dr Chilcott submits that the inference his age was the reason for the cancellation is able to be drawn from:

• Dr Lane's first draft letter and second draft letter;

[124] On Dr Chilcott's contended case, Dr Lane was the person who, on behalf of the Health Service, made the decision to cancel his further Hughenden assignment.[131] Dr Lane has given direct evidence that Dr Chilcott's age was not the reason for his decision. However, it may be that an inference may be drawn, from other evidence and documentary evidence - because it is permissible to draw inferences from a combination of facts[132] - that Dr Lane made the decision on the basis of Dr Chilcott's age.

[125] In this latter regard, the Respondents referred to the decision in _United Group Resources Pty Ltd and Others v Calabro and Others (_No 5)[133] where McKerracher J stated:

1. Proof of any fact on the balance of probabilities can be established by circumstantial evidence (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [90]); that is, by proof of primary, or intermediate, facts from which the court infers a further fact (Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579). The primary facts can themselves be the product of inference from other facts.

1. The applicants and the ABCC submit that in this case, in which the civil standard applies, "you need only circumstances raising a more probable inference in favour of what is alleged" (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5). A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts (Bradshaw at 6). Certainty is never possible, and is not required (Transport Industries Insurance Company Ltd v Longmuir [1997] 1 VR 125 at 141); all that is necessary is that "circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought" (Bradshaw at 5). For the purpose of considering whether this test is met the Court must "consider the accumulation of the evidence" (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535). It is appropriate "not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence" (Clay v Clay [1999] WASCA 8; (1999) 20 WAR 427 at [55]), by considering "the weight which is to be given to the united force of all the circumstances put together" (Belhaven and Stenton Peerage (1875) LR 1 App Cas 278 at 279). The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference (Chamberlain at 536). It also means that (Longmuir at 141).

[a] true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.

The overall effect can be a product of primary facts that are combined like "strands in a cable" (Seltsam at [90]).[134]

[126] In McRostie v Boral Resources (Qld) Pty Ltd,[135] Member Keim of the Queensland Anti-Discrimination Tribunal relevantly stated:

In discrimination cases, including cases alleging unlawful discrimination in the employment area, a complainant is forced to rely on circumstantial evidence. This frequently concerns human resources decisions involving the complainant which in some way depart from what one might normally expect and, therefore, call for some sort of explanation. Depending on the nature of the decision, and the persuasive nature or otherwise of the explanation proffered by a respondent, the incident may constitute circumstantial evidence of the alleged discrimination. The Tribunal may, in certain circumstances, be able to draw an inference from the particular evidence that the alleged discrimination has occurred.

For examples of cases where the ability of the Tribunal to draw such inferences are relevant to its decision, see, for example, D v G and O Pty Ltd, Queensland Anti-Discrimination Tribunal, 12 February 1997 and Everett v Copperart Pty Ltd, Queensland Anti-Discrimination Tribunal, 30 May 1997.

The reasoning process is complicated by the provision in s.10(4) of the Act (set out earlier in these reasons) that there may be two or more reasons for a particular course of action and that, provided the relevant attribute constitutes one of these numerous reasons and a substantial reason at that, the elements of the contravention may be established. Thus, a set of circumstances may be such as to raise an inference that the complainant's status as a woman was causally related to certain unfavourable treatment of the complaint. An explanation attributing another factor as the cause may be accepted without totally displacing the inference in that the Tribunal may be satisfied at the end of the day that it is more probable than not that the innocent (that is in terms of the Act) explanation given by the respondent and the attribute of the complainant's sex were both operative and both constituted substantial reasons for the less favourable treatment.

Ultimately, there can be no magic formula. The Tribunal must carefully consider the circumstances established by the evidence and not proceed to draw inferences therefrom unless the circumstances properly give rise to such inferences.

In addition, the Tribunal must carefully consider explanations put forward by a respondent. Those explanations must be considered carefully with the initial circumstances and the Tribunal must be satisfied, before any finding of unlawful discrimination can be made, that, in all the circumstances, it is more probable than not that less favourable treatment on the basis of the alleged attribute did occur.

It is with the background of these principles drawn from the legislation and the relevant case law that I turn to consider those matters which I have found to be of assistance in determining the issues raised by the complainant in this matter.''[136]

[127] More recently, Raper J in Reurich v Savills (SA) Pty Ltd,[137] relevantly stated about inferences that may be drawn in discrimination cases:

1. An inference of discrimination cannot be drawn from a bare assertion of discriminatory conduct: Annovazzi at [194]-[197]. The circumstances must be such as to fairly raise in an unsuspicious mind that the inference of unlawful discrimination is the "probable explanation for the different treatment": KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 527 per Anderson J cited with approval in Annovazzi at [195]. As observed by the Full Court in Sharma v Legal Aid (Qld) [2002] FCAFC 196; 115 IR 91 at [40], albeit with respect to racial discrimination, but analogous in cases of disability discrimination, as inferred from the reasoning in Annovazzi at [196]:
   1. It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953 at 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425 at 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.

[128] The evidence about the matters the subject of the parties' submissions comes from the witness' evidence and from documents tendered, including Ms Petrie's two emails to Dr Lane on 9 February 2021 (about the incident on 8 February 2021) and her email to Dr Lane on 19 February 2021 (about the incident on that day). In particular, Ms Petrie's email to Dr Lane on 19 February 2021 was written after she attended the Hughenden HS, after being contacted by the staff on that day when on a rostered day off. In cross-examination, Ms Petrie, because the relevant events happened in 2021, stated that she did have some difficulty recalling some of the detail of the events of 8 February 2021 and of 19 February 2021.[138]

[129] In assessing Ms Petrie's evidence, some assistance is derived from the recent decision in Lattouff v Australian Broadcasting Corporation No 2[139] where Rangiah J relevantly stated:

1. However, many of the relevant events were recorded in contemporaneous emails and text messages. I adopt the observations of Lee J in Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873; 308 IR 244:

[16] Although this is an industrial case, as those experienced in commercial litigation are aware, in determining contested factual issues, what matters most is usually "the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts": Mealey v Power [2015] NSWSC 1678 (at [4] per Pembroke J). As Leggatt J (as his Lordship then was) said in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) (at [22]):

"... the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts."

[17] Whether, as Full Court recently observed (in Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 (at [239] per Allsop CJ, Besanko and Middleton JJ), this approach is best seen as a helpful working hypothesis rather than a form of rule or general practice of placing little reliance on recollections is not something that matters for present purposes. What presently matters is that, at least in part, such an approach has an unstated assumption: that is, that the contemporaneous notes and documents that do exist emerged as the extemporaneous and unvarnished product of the conduct of internal dealings or communications between the contesting parties. The confidence that can be placed in the narrative that emerges from the contemporaneous record is increased when the relevant documents can be seen as the unfiltered and sufficiently complete record of what people were thinking and doing in "real time".[140]

[130] Of course, on the authorities to which I have referred in paragraphs [33] and [34] of these reasons, the seriousness of the allegation made by Dr Chilcott - that Dr Lane, as the Director of Medical Services, Rural Health Service Group and Indigenous Health Service Division of the Health Service, decided to cancel Dr Chilcott's further Hughenden assignment on the basis of his older age - is relevant in my assessment of the strength of the evidence as to whether I feel actual persuasion that Dr Chilcott's age was the reason, or a substantial reason, for that decision.

[131] Applying the principles to which I referred to above, I am of the view that Dr Chilcott has not proven, on the balance of probabilities, that the reason Dr Lane and Ms Heather made the decision to cancel Dr Chilcott's further Hughenden assignment was on the basis of his age. That is to say, I am not actually persuaded that, on the evidence, the real reason Dr Lane and Ms Heather cancelled the further Hughenden assignment was Dr Chilcott's older age.

[132] I come to this conclusion for a number of reasons.

[133] First, there is no direct proof that the reason Dr Lane and Ms Heather made the decision to cancel Dr Chilcott's further Hughenden assignment was because of his age. Dr Lane's evidence is that he and Ms Heather made that decision as a consequence of Dr Chilcott's behaviour at the Hughenden HS on 8 and 19 February 2021. Ms Heather's evidence, about her reasons to decide to cancel Dr Chilcott's further Hughenden assignment, is consistent with that of Dr Lane. The evidence is that it was the information provided to Dr Lane by Ms Petrie, which concerned Dr Chilcott's conduct on 8 and 19 February 2021, upon which Dr Lane and Ms Heather made their decision to cancel the further Hughenden assignment.

[134] Secondly, in terms of Dr Chilcott's submissions that there is insufficient evidence to establish he did anything wrong on 8 February 2021, and that his conduct on 19 February 2021 was appropriate, I refer to the findings of fact, in respect of the incidents on 8 February 2021 and on 19 February 2021, that I made earlier in these reasons. On any reasonable consideration of those findings of fact, Dr Chilcott's behaviour, as the locum Medical Superintendent at the Hughenden HS, towards the nurses involved - Ms Herrod and Ms Struthers (in Ms Roil's presence) - was not appropriate. Assuming that Dr Chilcott's clinical decisions about the medical issues involved were appropriate, his personal conduct, as I have found, in dealing with the nurses over those issues, was inappropriate.

[135] Two of the evidential issues in this case are that:

• in respect of the incident on 8 February 2021, the Respondents did not lead evidence from:

• - the patient at the centre of the incident, or the patient's partner; and

• in respect of the incident on 19 February 2021, the Respondents did not call Ms Roil or Ms Struthers to give evidence.

[136] Dr Chilcott submits Ms Petrie's evidence was '...exaggerated hearsay.'[141] Relevantly to the material issues I have to determine, Dr Chilcott submits[142] this is because Ms Petrie's evidence (as recorded in her email to Dr Lane on 19 February 2021)[143] that he '...literally screamed the ward down and was verbally aggressive and abusive to the agency nurse [Ms Roil] to the point where she has broken down' was inconsistent with Ms Struthers' report that he was '...talking very loudly' to Ms Roil and that Ms Roil '... was crying and very upset.'[144]

[137] I am unable to accept these submissions by Dr Chilcott.

[138] In respect of the incident on 8 February 2021, I have found that:

• Dr Chilcott, when on the ward:
  • - directly swore at Ms Herrod in a loud voice by calling her a '... fucking witch'; and

• - (on the basis of Ms Petrie's direct evidence) at a later point in time when he and Ms Herrod were outside of the patient's room, referred to the patient as '...a bitch'; and

• Dr Lane recommended to Ms Petrie that she conduct a group debrief about the incident involving Dr Chilcott and Ms Herrod.

[139] Further, in respect of the incident on 19 February 2021, consistently with Ms Petrie's email report to Dr Lane on that same day, I have found that:

• Dr Chilcott became angry when he discovered that Ms Roil did not subcutaneously administer Droperidol to a palliative care patient because none of the senior nurses were prepared to check the medication with her; and

• subsequently, in the presence of Ms Roil, Dr Chilcott spoke to Ms Struthers in a loud voice and in an angry manner to the point where Ms Roil became upset and had to stay off the ward for about two to three hours.

[140] Thirdly, the genuineness of Ms Petrie's expressed concern about Dr Chilcott, because of his behaviour, returning to the Hughenden HS, is supported, in part, by the content of her email to Dr Lane sent on 19 February 2021, namely, the effect on Ms Roil (that Ms Roil had broken down and needed to get off the ward). It is also supported by the findings of fact that I have made about Dr Chilcott's behaviour on 8 February 2021 and on 19 February 2021. Indeed, those findings of fact are made, in part, from the evidence given by Dr Chilcott in cross-examination that I have set out earlier in these reasons.

[141] Fourthly, I accept Dr Lane's evidence and Ms Heather's evidence about the reasons they made the decision to cancel Dr Chilcott's further Hughenden assignment, namely, his reported behaviour by Ms Petrie and Ms Petrie's expressed concern about Dr Chilcott, because of his behaviour, returning to the Hughenden HS.

[142] I have come to this fourth conclusion for a number of reasons.

[143] One, the sequence of the events, and the proximity of those events to each other, including the decision by Dr Lane and Ms Heather to cancel Dr Chilcott's further Hughenden assignment, gives rise to the clear plausibility of Dr Lane's evidence and Ms Heather's evidence that their reasons to cancel that assignment was because of Dr Chilcott's reported behaviour at the Hughenden HS on 8 February 2021 and on 19 February 2021.

[144] On 8 February 2021, following Dr Chilcott engaging in the behaviour which was brought to the attention of Ms Petrie on that day, and the behaviour of Dr Chilcott that she witnessed on that day (namely, Dr Chilcott and Ms Herrod talking loudly to each other outside of the patient's room and Dr Chilcott referring to the patient as '...a bitch'), Ms Petrie spoke to Dr Lane to inform him of what had occurred.

[145] The next day, 9 February 2021, Ms Petrie sent Dr Lane and Ms Heather an email about the incident. In response to that email, Dr Lane recommended to Ms Petrie that she organise a group debrief, involving Dr Chilcott and Ms Herrod, about the incident. Ms Petrie then had a conversation with Dr Chilcott about having a group debrief (to which he agreed) and then she sent Dr Lane an email about that conversation.

[146] Then, on the afternoon of 19 February 2021, Ms Petrie sent an email to Dr Lane to advise him of the incident involving Dr Chilcott's behaviour on that day as reported to her. Dr Lane, upon receiving that email on 19 February 2021, then called Ms Petrie who gave Dr Lane a further explanation about Dr Chilcott's behaviour as reported to her. Dr Lane's evidence was that in that phone call, Ms Petrie then made it clear to Dr Lane that she did not want Dr Chilcott returning to the Hughenden HS. In response to that, Dr Lane told Ms Petrie that he would talk to the Health Service's Locum Coordinator (Ms Hill) about what they could do.

[147] Following that, on the same day (19 February 2021) Dr Lane sent an email to Ms Hill indicating to her that because of Dr Chilcott's behaviour, he did not think that the Health Service could use Dr Chilcott any further. According to Dr Lane's unchallenged evidence, at 4.41 pm on 19 February 2021, he received a response from Ms Hill stating that she would advertise the Hughenden HS placement and see if any locums were available.

[148] The evidence then was that on 22 February 2021, Dr Lane and Ms Heather made the decision that Dr Chilcott's further Hughenden assignment would be cancelled. That decision followed a direct discussion, on that same day, between Dr Lane and Ms Heather.

[149] Dr Lane's evidence was that he made the decision to cancel Dr Chilcott's further Hughenden assignment because of his poor behaviour, because the nursing staff would not feel safe working with him if he returned to the Hughenden HS and because of the issue of the risk to patients arising from Dr Chilcott not appropriately communicating with nursing staff.

[150] Ms Heather's evidence was that because of the incidents on 8 and 19 February 2021, her belief was that Dr Chilcott's interaction with medical staff and patients at the Hughenden HS was unprofessional and inappropriate, such that there was a risk to patients if the relationship between Dr Chilcott and the nursing staff broke down.

[151] For these reasons, there is a striking plausibility in the evidence of Dr Lane and Ms Heather. This is because of the sequence of the events and their proximity to each other, namely:

• Ms Petrie's email and verbal reports to Dr Lane of Dr Chilcott's behaviour on 8 February 2021 and 19 February 2021;

• Ms Petrie's concern, as expressed in her email to Dr Lane on 19 February 2021, about Dr Chilcott returning to the Hughenden HS and Dr Lane's evidence that Ms Petrie stated to him on 19 February 2021 that she did not want Dr Chilcott to return to the Hughenden HS;

• Dr Lane's subsequent email, on 19 February 2021, to Ms Hill about having another locum to take the further Hughenden assignment in place of Dr Chilcott; and

• the decision by Dr Lane and Ms Heather, on 22 February 2021, to cancel Dr Chilcott's further Hughenden assignment.

[152] Two, Dr Chilcott cross-examined Dr Lane about his reasons to cancel his further Hughenden assignment.[145] Dr Lane, in cross-examination, did not depart from or qualify, in any way, his evidence in chief about the reasons why he made the decision (with Ms Heather) to cancel Dr Chilcott's further Hughenden assignment. Dr Lane did not give any evidence, in cross-examination, that was inconsistent with any of his evidence in chief and did not give any evidence in cross-examination that was inconsistent with any of the contemporaneous emails he generated prior to making the decision to cancel Dr Chilcott's further Hughenden assignment (Exhibit 7, exhibit 'PL 5').

[153] Further, by email sent on 24 February 2021 to Dr Lane and Ms Petrie, Dr Chilcott gave his account of what occurred on 19 February 2021 at the Hughenden HS. That email, which is two and a half pages long, is exhibit 'PBC 8' to Dr Chilcott's affidavit (Exhibit 4). This email, in the main, went to why his clinical decision on 19 February 2021, about the administration of Droperidol to the patient, was correct and should not have been '...countermanded' by Ms Struthers. In cross-examination, Dr Chilcott asked Dr Lane if, having regard to his (Dr Chilcott's) written account of what occurred on that day, he still accepted what Ms Petrie had told him about the incident. Dr Lane's evidence, after re-reading Dr Chilcott's written account was: [146]

To me, Peter, in reading this, it's not about your clinical practice. It's the way in which you interacted with staff - um - and the way that you made them feel, and I don't think it's ever appropriate, in a workplace in Queensland Health, that we can berate someone to the point that they break down, start crying and have to leave the clinical area. Um - staff do need to feel safe at work. Teamwork - particularly in small rural centres, teamwork is absolutely essential because they often don't - those clinics don't have the resources and all the skills of a larger centre. And so I stand by that statement, that if you - if you are treating staff in that way, even if you might be clinically in the right, it still can create an unsafe working environment.[147]

[154] In further cross-examination, Dr Chilcott asked Dr Lane why, in respect of the information he received from Ms Petrie, he did not follow the applicable complaint resolution process.[148] Dr Lane's evidence was that because of the short-term nature of the locum contracts made through a locum agency, if the locum medical practitioner was not working out or if they were not a good team fit, then they (the Health Service) would cancel the contract and get another locum.[149] Furthermore, in relation to the incident on 8 February 2021, Dr Lane's evidence was that he did not follow that complaint resolution process because he had asked Ms Petrie to undertake a debrief with Dr Chilcott.[150]

[155] Three, Dr Chilcott's cross-examination of Ms Heather did not challenge her reasons for deciding to cancel his further Hughenden assignment.[151] What strengthens Dr Lane's evidence is Ms Heather's evidence that she made the decision jointly with Dr Lane and for reasons of the same kind as given by Dr Lane.

[156] For these reasons, I accept the evidence of Dr Lane and Ms Heather that the reason they cancelled Dr Chilcott's further Hughenden assignment was because of his behaviour at the Hughenden HS on 8 and 19 February 2021 and not because of his age.

The other documentary evidence pointed to by Dr Chilcott

[157] From the direct evidence given by Ms Petrie, and from the direct evidence given by Dr Lane and Ms Heather about their reasons in making the decision to cancel the further Hughenden assignment, I am persuaded that it was Dr Chilcott's behaviour on 8 and 19 February 2021 at the Hughenden HS that was the real reason for the cancellation of his further assignment.

[158] For the reasons I have given, I consider the evidence, upon which I have come to that conclusion, to be very strong evidence.

[159] I am not persuaded that the other documentary evidence pointed to by Dr Chilcott overcomes my persuasion that it was Dr Chilcott's behaviour on 8 and 19 February 2021 at the Hughenden HS that was the real reason for the cancellation of his further assignment. This is for the following reasons.

[160] In that email, Dr Lane stated: 'I personally think Peter should retire'. That email was sent on 19 February 2021 at 4.27 pm.

[161] However, Dr Lane sent an earlier email to Ms Hill on 19 February 2021, at 4.06 pm, which was after Ms Petrie had informed Dr Lane about Dr Chilcott's behaviour on that same day.[152] It was as a consequence of Ms Petrie's contact that day with Dr Lane that he stated in this earlier email to Ms Hill: 'I don't think we can use him anymore.' [153]

[162] Therefore, it seems to me that Dr Lane had come to, at the very least, a preliminary view that Dr Chilcott could not return to the Hughenden HS because of Ms Petrie's report of his behaviour of that day. On the evidence of those emails, that preliminary view was formed prior to Dr Lane making his subsequent comment to Ms Hill about Dr Chilcott retiring. Further, on the evidence as a whole, Dr Lane's expressed view that he did not think '...we can use him anymore' was formed as a consequence of Ms Petrie's reports to him of Dr Chilcott's behaviour on 8 and 19 February 2021.

[163] Dr Lane's first and second draft letters were composed in November 2020 following the October 2020 complaint by the patient about Dr Chilcott's behaviour at the Magnetic Island HS in September 2020.

[164] For the reasons given earlier, compared to the inference Dr Chilcott asks the Commission to draw from Dr Lane's first and second draft letters, the much stronger direct evidence is that Dr Lane (and Ms Heather) made the decision to cancel Dr Chilcott's further Hughenden assignment because of the information provided by Ms Petrie to him about Dr Chilcott's behaviour on 8 February 2021 and on 19 February 2021.

[165] In any event, according to Ms Heather's unchallenged evidence, following the complaint being made in October 2020 to the Department about Dr Chilcott's behaviour at the Magnetic Island HS in September 2020, Dr Chilcott completed five assignments at the Magnetic Island HS, and at the Hughenden HS,[154] prior to the final decision being made on 22 February 2021 to cancel Dr Chilcott's further Hughenden assignment.

[166] If Dr Lane, as at November 2020, when he composed his first and second draft letters, had the intention to not further engage Dr Chilcott as a locum because of his age, he did not act upon it at that time.

[167] By contrast, Dr Lane did act to cancel Dr Chilcott's further Hughenden assignment after Ms Petrie's reports to him of Dr Chilcott's behaviour at the Hughenden HS on 19 February 2021 and her expressed concern about him returning to the hospital at Hughenden.

[168] In respect of Dr Lane's email to Dr Short and Ms Greenhorn, this email was sent on 24 February 2021 which was two days after Dr Lane and Ms Heather made their decision to cancel Dr Chilcott's further Hughenden HS on 22 February 2021. For that reason, it is difficult to see how Dr Lane's comments in that email give rise to a clear inference that Dr Lane made the (earlier) decision to cancel Dr Chilcott's further Hughenden assignment because of his age.

[169] Further, I accept the Respondents' submission that by Dr Lane stating in that email: 'Peter is an older GP who would benefit from some first call by Jay to decrease impact of fatigue', those words do not evince any intention to cancel Dr Chilcott's further Hughenden assignment because of his age.

[170] In addition, I further accept the Respondents' alternative submission that, on the text used, the purpose of the email was to put in place an on-call arrangement to address fatigue, not to cancel Dr Chilcott's engagements.

[171] Standing back and viewing the overall effect of the direct evidence of Ms Petrie, Dr Chilcott, Ms Heather and Dr Lane to which I have referred, the sequence of the events to which I have referred and their proximity to each other, the combination of that evidence proves that, on the balance of probabilities, it was Dr Chilcott's behaviour at the Hughenden HS on 8 February 2021 and on 19 February 2021 that was the reason for Dr Lane and Ms Heather cancelling Dr Chilcott's further Hughenden assignment.

[172] I find that the real reason Dr Lane made the decision to cancel Dr Chilcott's further Hughenden assignment was because of the behaviour he exhibited on the ward at the Hughenden HS on 8 February 2021 and on 19 February 2021.

[173] For the above reasons, Dr Chilcott's claim that he was the subject of direct age discrimination because of the decision of Dr Lane to cancel the further Hughenden assignment has not been proven. On the evidence, it is not the case that Dr Chilcott's age was the probable explanation for the cancellation of his further Hughenden assignment. Accordingly, I do not find that Dr Chilcott's further Hughenden assignment was cancelled on the basis of his age. It is unnecessary to go on and consider whether Dr Chilcott was the subject of comparable less favourable treatment. In terms of s 15A(2)(b) of the AD Act, while Dr Chilcott was not allowed to work or to continue to work, it was not for the proscribed reason of direct age discrimination.

[174] For the sake of completeness, I will briefly touch upon the other arguments advanced by Dr Chilcott.

[175] Dr Chilcott submits that Dr Lane denied him procedural fairness by not enlivening the complaint resolution process.

[176] Assuming, without deciding, that Dr Lane was obliged to give Dr Chilcott an opportunity to be heard about his behaviour on 8 and 9 February 2021, but did not do so, or that Dr Lane was obliged to give Dr Chilcott an opportunity to be heard before cancelling the further Hughenden assignment, but did not do so, those (assumed) circumstances would not persuade me that Dr Lane cancelled the further Hughenden assignment because of Dr Chilcott's age. This is for two reasons. First, the two are not mutually inclusive. Dr Lane could have cancelled the further Hughenden assignment because of Dr Chilcott's behaviour on 8 and 19 February 2021 in circumstances that were procedurally unfair but without engaging in unlawful direct age discrimination.

[177] Secondly, to the extent that Dr Chilcott says the failure to afford him a hearing, or any form of procedural fairness, is evidence that tends to support his claim he was the subject of age discrimination, I reject that submission. For the reasons I have given, the far greater weight of the direct evidence is that the reason Dr Lane cancelled the further Hughenden assignment was because of Dr Chilcott's behaviour on 8 and 19 February 2021 and not on the basis of his age.

[178] Finally, Dr Chilcott claims that his behaviour on 8 and 9 February 2021 was justified. That issue is irrelevant to the matter I have to determine. Because the claim made by Dr Chilcott was that the further Hughenden assignment was cancelled because of his age, the material issue was the real reason Dr Lane and Ms Heather cancelled Dr Chilcott's further Hughenden assignment.

[179] For the reasons I have given, Dr Chilcott has not discharged the onus of proof on him that the reason Dr Lane cancelled his further Hughenden assignment was on the basis of his age.

[180] Pursuant to s 210 of the AD Act, Dr Chilcott's complaint, that he was the subject of unlawful age discrimination by Dr Lane's decision to cancel the further Hughenden assignment, is dismissed.

Dr Chilcott's claim that he was the subject of unlawful age discrimination in respect of the change made by Dr Lane to the after-hours rostering at the Magnetic Island HS

[181] By reference to Dr Chilcott's contentions, I also summarised this claim in Chilcott No. 1. Again, it is convenient to reproduce that part of Chilcott No. 1 in these reasons (footnotes omitted):

Alleged discrimination on the basis of age at the Magnetic Island HS - removal from after-hours rostering (paragraphs 10 to 25 of Dr Chilcott's contentions)

• between 22 February 2021 and 4 March 2021, he was on assignment at the Magnetic Island HS;

• on 24 February 2021, he discovered an email from Dr Lane to a junior doctor working part-time at the Magnetic Island HS, Dr Short ('Dr Lane's email to Dr Short'), which stated:

Peter is an older GP who would benefit from some first call by Jay to decrease impact of fatigue. Please have a look at the upcoming rosters and see what you can do.;

• the effect of that '... instruction' was that he (Dr Chilcott) '... was relieved of his duty to provide "first call" after-hours services at Magnetic Island because Dr Paul Lane presumed (without evidence) that the Complainant was susceptible to fatigue due to his age;

• this action taken by Dr Lane was direct discrimination against him on the basis of his age because, contrary to s 10(1) of the AD Act, Dr Lane treated him less favourably than the younger less experienced doctor, namely, Dr Short, by promoting Dr Short and demoting him (Dr Chilcott) in relation to the on-call requirement of his duties; and

• Dr Lane's alleged discriminatory conduct caused him (Dr Chilcott):

• - professional humiliation, severe distress, and shame and embarrassment;

• - to resign from his professional college, the Australian College of Rural and Remote Medicine ('ACRRM'), to resign from his position on the Education Committee of the ACRRM and to withdraw from all contact with his professional colleagues.

[182] I summarised the Respondents' response to this claim in Chilcott No.1 (footnotes omitted):

[31] The Respondents deny the allegation because:

• in about February 2021, Dr Lane introduced an informal model of care policy in a number of the THHS's facilities, including the Magnetic Island HS, to combat fatigue amongst senior medical staff ('the Policy');[155]

• in accordance with the Policy, at Magnetic Island HS:

• - the senior general practitioner, being the Medical Superintendent, was paired with a junior general practitioner;

• - both general practitioners would be on-call when neither general practitioner was working;

• - usually, the junior general practitioner would be on first call; and

• - if the junior general practitioner required support while on-call, the Medical Superintendent would be available;

• - reduced the amount of on-call work a Medical Superintendent performed, but did not reduce the number of hours a Medical Superintendent would be on-call; and

• - did not affect the Medical Superintendent's responsibilities, seniority, or pay, or otherwise result in less favourable conditions for a Medical Superintendent;

• Dr Lane did not tell Dr Chilcott about his decision to introduce the Policy, including at the Magnetic Island HS, because he was not required to do so;

• on 24 February 2021, Dr Lane sent the email to Dr Short, a junior General Practitioner working at Magnetic Island HS, and to Ms Jennifer Greenhorn, Director of Nursing, Magnetic Island HS, in which he made the statement referred to in the second dot point of paragraph [25] of these reasons;

• they would have engaged in the conduct, referred to in the second dot point of paragraph [25] of these reasons, in relation to a younger Medical Superintendent, for the reasons given earlier in this paragraph; and

• by not requiring Dr Chilcott to be the first General Practitioner on-call, the Respondents did not treat Dr Chilcott less favourably, but rather:

• - reduced the amount of on-call work Dr Chilcott may have had to perform; and

• - did not alter Dr Chilcott's responsibilities, seniority as a Medical Superintendent, pay or any other condition of Global Medics' provision of services to the THHS.

[183] This is also a claim of direct age discrimination by Dr Chilcott.

[184] There is no dispute that Dr Chilcott, between 22 February 2021 and 4 March 2021, undertook a locum short term assignment for the Health Service at the Magnetic Island HS.[156]

[185] Furthermore, there is no dispute that Dr Lane, by his email to Dr Short and Ms Greenhorn sent on 24 February 2021, (referred to earlier in these reasons) asked Dr Short to be the first doctor called when on call after hours with Dr Chilcott.

[186] As referred to above, Dr Chilcott's contention is that by reference to Dr Lane's email to Dr Short and Ms Greenhorn, Dr Lane directly discriminated against him by on the basis of his age by reducing his on-call work and having a junior general practitioner perform it instead, resulting in his demotion.

• in Dr Lane sending the email to Dr Short and Ms Greenhorn, he was not responding to a workload problem at the Magnetic Island HS, because there was no such problem;

• Dr Short was already working at the Magnetic Island HS as part of his vocational general practitioner training and he was supernumerary;

• immediately prior to Dr Lane sending the email to Dr Short, he (Dr Chilcott) had sent Dr Lane an email about the events of 19 February 2021 at the Hughenden HS in which he stated to Dr Lane that Ms Struthers had '...undermined my authority as Medical Superintendent' and that, in respect of Ms Struthers '... action under diminished performance should be considered';[158]

• Dr Lane completely disregarded his (Dr Chilcott's) concerns and advice; and

• as a consequence, Dr Short was used (by Dr Lane) as a distraction from Dr Lane's obligation to discipline Ms Struthers who had undermined his (Dr Chilcott's) authority.

• Dr Short, as a junior doctor, was being vocationally trained as a general practitioner under his (Dr Chilcott's) ' ... direct supervision'; and

• as a consequence, Dr Lane had no right to interfere with his (Dr Chilcott's) supervision of Dr Short.[159]

[189] Dr Chilcott then makes the following submission (footnotes omitted):

1. Dr Paul Lane knew that Dr Chilcott's current assignment at Magnetic Island was to be Dr Chilcott's last week of his locum career with THHS. Having Dr Chilcott supervised by his junior doctor in his last eight days of employment was not a matter concerning Dr Chilcott's safe practice or his competency as a GP. Under cross examination Dr Paul Lane admitted that Dr Chilcott was both safe and competent. "But you were - from my perspective, you were a safe and - and competent clinician". So, it must have been about Dr Chilcott's age "I had concerns about the nature of the roles in which you were being employed and the hours that you needed to work. Um - so what we know is that - um - older people have poorer quality sleep and so are more prone to fatigue, if that sleep is interrupted" Dr Lane's obsession with fatigue, particularly in older people, has caused him to invent a situation similar to his own recollection of burnout. This obsession metastasised into a fixation on Dr Chilcott's age, accompanied by wild imaginings of sleep disturbance, culminating in pathological fatigue. These delusional inventions fuelled Dr Lane's perceived irrational desire, without evidence or investigation, to force Dr Chilcott to retire.

1. No patients ever mentioned fatigue in relation to Dr Chilcott's work. No staff other than Dr Lane (himself) made any suggestion of Dr Chilcott being fatigued; and no member of staff, other than Dr Lane, made any suggestion that Dr Chilcott should retire. These were entirely Dr Lane's creations, fictitious imaginations. Dr Lane's reference point for fatigue was his own experience, both as a victim of fatigue and from his clinical practice, and he felt almost insanely confident in diagnosing sleep deprivation and fatigue, based entirely upon these biased histories, from only one patient and one staff member; no need or time to investigate and no need or time to provide due process or procedural fairness. Dr Chilcott was treated differently from any other employee because he was not Dr Lane's preferred type of employee. "Peter is an older GP"

[190] The Respondents submit that Dr Lane's email to Dr Short and Ms Greenhorn:

• concerned Dr Lane's concern about Dr Chilcott being fatigued and not his age.

[191] As to the first point made by the Respondents, they submit:.

• Dr Chilcott has not identified any less favourable treatment;

• in his evidence given in cross-examination, Dr Chilcott accepted that there was no difference at all in the Respondents' treatment of him across all of his engagements at the Magnetic Island HS, both before and after the alleged age discrimination, in that Dr Chilcott always had the same responsibilities, the same role and the same pay and that he was always on-call;

• Dr Chilcott was always on-call regardless of any arrangement regarding his on-call priority, so that the arrangement referred to by Dr Lane in his email to Dr Short and Ms Greenhorn did not have any objective detrimental effect on Dr Chilcott;

• there was no change in their treatment of Dr Chilcott after Dr Lane's email to Dr Short and Ms Greenhorn so that they did not treat him less favourably than a younger doctor in similar circumstances because:

• - Dr Chilcott does not complain of discrimination before the email, so the Commission can infer that at those times, they were not treating him less favourably than a younger doctor in similar circumstances;

• - as there was no change in their treatment of Dr Chilcott, less favourable treatment could only have occurred if they had objectively improve their treatment of a younger doctor in the same circumstances; and

• - there is no evidence or allegation that a younger doctor had received objectively improved treatment so the only conclusion left open is that they did not treat Dr Chilcott less favourably than a younger doctor.[160]

[192] In respect of the second point made by the Respondents, they submit:

• Dr Lane's evidence was that having a junior doctor to be the first on-call is a common practice in the public health system because when two or more doctors are on-call at the same time, the junior doctor is the first to attend to a callout and, if the junior doctor need support, the senior doctor can step in;

• such a practice does not affect the doctors' responsibilities, seniority will pay;

• one of the main reasons for using this on-call arrangement is fatigue management because the practice reduces sleep deprivation impacts on the senior doctor and ensures they are not fatigued, are still available if there were serious on-call issues and are still available to supervise junior doctors;

• Dr Lane, in his email to Doctor Short and Ms Greenhorn, identified that fatigue was the reason for implementing the practice identified in that email namely that Dr Chilcott '... would benefit from some first call by Jay to decrease impact of fatigue.'; and

• Dr Chilcott, in his cross examination of Dr Lane, did not challenge Dr Lane's evidence about the use of on-call arrangements or that Dr Lane imposed the on-call arrangement because of Dr Chilcott's fatigue.[161]

[193] The Respondents then make the following submission (footnotes omitted):

1. First, the issue in dispute is Dr Lane's subjective reasons for sending the email. It is not relevant whether his decision was reasonable or correct. As such, it is not necessary to determine whether Dr Chilcott was actually fatigued. To that end, Dr Lane gave unchallenged evidence that, in his opinion, the reports he received about Dr Chilcott's behaviour indicated symptoms of fatigue.

By Dr Lane's changes to the on-call arrangements, did Dr Lane directly discriminate against Dr Chilcott on the basis of age?

[194] As referred to earlier, the evidence upon which Dr Chilcott makes this complaint is Dr Lane's email to Dr Short and Ms Greenhorn sent on 24 February 2021 when Dr Chilcott was working as the Medical Superintendent at the Magnetic Island HS.

[195] It is convenient to set the text of that email out again. Dr Lane stated:

Peter is an older GP who would benefit from some first called by Jay to decrease impact of fatigue.

Please have a look at the upcoming rosters and see what you can do.[162]

Section 10 of the Anti-Discrimination Act 1991

[196] Section 10 of the AD Act, which defines direct discrimination for the purposes of the AD Act, is set out earlier in these reasons. Further, similar to that as I stated in respect of Dr Chilcott's claim of direct discrimination regarding the cancellation of the further Hughenden assignment, in respect of his claim of direct discrimination concerning Dr Lane's email to Dr Short and Ms Greenhorn:

• I must consider whether Dr Chilcott was treated less favourably than another a person, who did not have Dr Chilcott's protected attribute of older age, would be treated in circumstances that are the same or not materially different; and

• whether the less favourable treatment was because of Dr Chilcott's older age.[163]

[197] In Woodforth v State of Queensland ('Woodforth'),[164]McMurdo JA[165] stated the approach to the establishment of comparable less favourable treatment under section 10 of the AD Act:

[29] Section 10 requires a comparison between a person with an attribute and a person without that attribute. The comparison is to be made by reference to a certain set of circumstances. In the case of the person with the attribute, that is the set of circumstances in which that person has been treated or the circumstances in which it is proposed to treat that person. In the case of the person without the attribute, who is commonly called in this context "the comparator", they are hypothetical circumstances which are assumed to be the same or not materially different from those in which the person with an attribute has been or will be treated.

[198] Section 10(1) of the AD Act requires a factual inquiry to ascertain whether less favourable treatment has occurred; and that conclusion is only possible if the treatment experienced occurs in circumstances that are the same or not materially different from those in which a person, who does not have the relevant attribute, has received or would receive more favourable treatment. That is the inquiry as to the treatment received. [166]

[199] The other inquiry, as discussed earlier in these reasons, is the reason for the treatment; in other words, causation.[167] While Purvis was a case about disability discrimination, the comments by Gummow, Hayne and Heydon JJ about the two inquiries are equally applicable to s 10 of the AD Act. Their Honours stated that the answer to the question presented by treatment '..."because of" disability does not determine the separate, comparative, question which must be asked: how would the discriminator treat or have treated a person without the disability in the relevant circumstances?'[168]

[200] Dr Chilcott has not identified an actual comparator. As such, a hypothetical comparator must be identified. Dr Chilcott has not identified the characteristics of the hypothetical comparator.

[201] The identification of the appropriate hypothetical comparator was determined by the High Court of Australia in Purvis.[169]

[202] In that case, a pupil in a school conducted by the New South Wales Department of Education and Training suffered brain damage in infancy and a disorder manifested itself in repeated acts of violence by the pupil against staff and other students of the school. After the pupil was suspended a number of times, he was eventually expelled from the school by the Principal.

[203] The majority, Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ, McHugh and Kirby JJ dissenting, held that there had been no discrimination within the meaning of the Disability Discrimination Act 1992. The provisions of the Disability Discrimination Act 1992 that deal with direct discrimination (section 5(1) of that Act) were not materially different to section 10(1) of the AD Act.[170]

[204] Before the High Court, a question arose as to the hypothetical person to whom the comparison was to be made. Chief Justice Gleeson held that the comparison required by section 5(1) of the Disability Discrimination Act 1992 was with a pupil without the disability not a pupil without the violence and that the treatment of the aggrieved person in that case was to be compared with the treatment that would be given, in the same circumstances, to a pupil whose similar violent behaviour which was not disturbed behaviour resulting from a disorder.[171] Chief Justice Gleeson also held that such an approach in respect of a comparison allowed account to be taken of the relevant authority's legal responsibilities towards students generally.[172]

[205] Further, Gleeson CJ held at [13] that the complainant's disorder and associated disturbed behaviour was, from the point of view of the relevant school Principal, "...neither the reason, nor a reason, why he was suspended and expelled" and the "expressed and genuine basis" of the Principal's decision was the danger to other pupils and staff constituted by the complainant's violent conduct and the Principal's responsibilities towards those other persons.[173]

[206] Gummow, Hayne and Heydon JJ, in respect of the comparator issue, stated:

[222] It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the ''circumstances'' to be considered are to be identified in the same way the appellant contended. Indeed, to strip out those circumstances and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. ... The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

[223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a highly hypothetical circumstance defined by excluding all features of the disability.

[207] Justices Gummow, Hayne and Heydon concluded that the decision of the Human Rights and Equal Opportunity Commission (at first instance) in favour of the pupil was incorrect because that Commission's conclusions about the reasons for the pupil's suspension and exclusion (his disturbed behaviour) was seen as determinative of the question of less favourable treatment. Their Honours held that the circumstances surrounding the pupil's treatment were not identified and that there was no determination of how a person without the disability would have been treated in circumstances that were the same, or not materially different from, the circumstances surrounding the pupil's treatment.[174]

[208] Justice Callinan agreed with the reasons given by Gummow, Hayne and Heydon JJ with respect to the identification of the comparator.[175]

[209] Section 8 of the AD Act provides that discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of:

• a characteristic that a person with any of the attributes generally has; or

• a characteristic that is often imputed to a person with any of the attributes; or

• an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

• an attribute that a person has, even if the person did not have it at the time of the discrimination.[176]

[210] The effect of s 8 of the AD Act is that, in combination with s 10(1), is to proscribe discrimination on the basis of a characteristic.[177]

[211] As the Respondents correctly submit,[178] Dr Chilcott has not, having regard to s 8 of the AD Act, alleged that fatigue is an actual, often imputed or presumed characteristic of the attribute of older age.[179] The Respondents further submitted that from early in the proceeding, they identified how they understood Dr Chilcott's claim made against them, and that as Dr Chilcott has never suggested that the Respondents' understanding was incorrect, then as a matter of fairness to them, Dr Chilcott must be held to the case as they understood it to be, namely that the claim was that he (Dr Chilcott) was the subject of direct discrimination on the basis of age but where fatigue was not contended to be a characteristic of that attribute.[180]

[212] I accept these submissions by the Respondents. Despite the fact that Dr Chilcott represented himself, the Respondents have come to meet the case contended against them. It would be unfair to decide the case as between Dr Chilcott and the Respondents on a basis upon which they had no notice. A court established by legislation, as is the case with the Commission,[181] means that any jurisdiction conferred on it is necessarily conditioned by the requirement that it observes procedural fairness in the exercise of that jurisdiction.[182] In respect of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[183] Dr Chilcott has had ample opportunity to formulate and present his case. In my view, the Respondents would suffer a practical injustice if the case against them was considered on the basis not argued by Dr Chilcott.[184]

The identification of the hypothetical comparator in the present case

[213] Dr Chilcott's evidence is that he has been '...a highly respected rural and remote Specialist General Practitioner for 47 years.'[185] It is obvious, from Dr Chilcott's evidence that he is an older person or that he could reasonably be described as a person in an older age group. In addition, Dr Chilcott's evidence was that not long after he started as a locum for the Health Service in 2020, Dr Lane visited him at the Hughenden HS where he (Dr Chilcott) stated to Dr Lane that he was postponing his retirement in response to workforce shortages partly caused by border closures associated with the COVID 19 pandemic.[186]

[214] In my opinion, in terms of identifying the age or age group of a hypothetical comparator, for the comparison to have any sensible meaning, the hypothetical comparator must be someone in a younger age group to that of Dr Chilcott, namely, a person who has not been working for 47 years and who is not near retirement. In my view, in terms of selecting the age of the hypothetical comparator, this is a more appropriate identification rather than trying to identify an individual of a specific age.[187]

[215] Further, having regard to the decision of the majority in Purvis, what must then be examined is what would have been done in the same circumstances if the person concerned did not have the attribute, namely, in the present case, Dr Chilcott being an older person close to retirement. It is important to identify the circumstances that are not materially different.[188] This involves a level of '...granular detail'[189] and has also been described as being ' ... necessarily fact-sensitive and fact-intensive.'[190]

[216] There is no dispute that, at the time of Dr Lane's email to Dr Short and Ms Greenhorn, Dr Chilcott was working at the Magnetic Island HS, as a locum, in the position of Medical Superintendent.[191] Dr Chilcott's hours of work were set out in the contract between the Health Service and Global Medics for that period of time (22 February 2021 to 4 March 2021). Ms Heather exhibits that contract to her affidavit. Relevantly, in respect of Dr Chilcott's assignment at the Magnetic Island HS from 22 February 2021 to 4 March 2021, the contract provided, under the heading of 'Hours of work':

In accordance with the Service's roster a working day will be no less than 8 hours. Meal breaks are not paid, and the Locum is required to take at least 30 minutes unpaid meal break per shift.

A locum relieving a MSRPP or MORPP role is not required to work at least eight hours per day at the hospital, however, is required to be available on-call at all times where not in attendance at the hospital and is not entitled to additional payment beyond their daily rate.

In accordance with the Standing Offer Arrangement all Locum Medical Officers shall act under the direction of the Health Service in relation to work to be performed, security and access, hours of work, confidentiality and privacy.[192]

[217] In respect of the roster to be worked by Dr Chilcott, the contract provided: 'As per roster.'[193]

[218] As I understood his oral evidence, Dr Lane indicated that the health services, such as the Hughenden HS and the Magnetic Island HS provided '...24/7 or after hour care'[194] and that doctors with a right to private practice, as Dr Chilcott was so appointed as a locum through Global Medics at the Hughenden HS and at the Magnetic Island HS, '...may work 21 days straight and be on-call each night.'[195]

[219] Dr Lane's evidence was that he had considerable personal and professional experience in relation to doctors working while fatigued and he took the issue very seriously.[196] Dr Lane stated that he had lived experience as an Intensive Care Specialist, as well as a manager working with chronically fatigued colleagues, which'...is of particular concern in rural settings, where there is often only one doctor.'[197]

[220] Dr Lane stated that he had personally suffered from fatigue when he was working in intensive care and that, in his experience, it was difficult to recognise that he was suffering from fatigue until afterwards and that he had observed that difficulty with other doctors that he had managed.[198] Dr Lane's further evidence was that in his experience, some of the common symptoms of fatigue included depression, and intolerant, irritated or cold bedside manner with loss of empathy, seeming tired or '... burnt out', and avoiding a patient's gaze or questions.[199]

[221] Dr Lane stated that from Ms Petrie's accounts to him about Dr Chilcott, it seemed to him that Dr Chilcott was exhibiting those behaviours, particularly irritability and a lack of empathy and, as a result, '... I was concerned about fatigue.'[200]

1. I also know from personal and professional experience that disrupted sleep has significant consequences for cognitive functioning. It can impair cognitive performance and induce sleepiness, fatigue and mood changes. The effects of sleep disruption are particularly pertinent for populations who experience fragmented sleep opportunities because of occupational demands such as being on-call. As a result, fatigue is an ever-present risk associated with on-call work.
2. Also, sleep disruption can have a more significant impact on older people than younger people. For this reason, many medical departments across Australia, including at my current hospital, limit the amount of afterhours or on-call work that senior doctors perform.

[223] Dr Lane's oral evidence in cross-examination was that he acknowledged Dr Chilcott's ability to provide 24-hour care may be compromised by his workload in (his ) senior years.[201] Dr Lane was further cross-examined about this point by Dr Chilcott. Dr Lane stated:

But it was very clear from the documentation I've received from - from a number of different people, both patient complaints as well as staff, that there seems to be periods of time, particularly after hours, where your behaviour and your - um - communication - ah - style had deteriorated. And so for me, I was making a comment about - about that. Um - I think that I have worked with many senior doctors and generally - um - what we - our approach to that, to the problem of 24/7 care or after-hour care, would be to limit the amount of time that those senior doctors are on-call.[202]

[224] The issue of the correct identification of the comparator is important for determining if there was differentiation of treatment which results in any detriment to a complainant.

[225] In the present case, having regard to Purvis, the hypothetical comparator is:

• a Medical Superintendent at the Magnetic Island Hospital; and

• who is in a younger age group to that of Dr Chilcott and who is not close to retirement; and

• who, while the working day was no less than eight hours, was not required to work at least eight hours per day at the Magnetic Island Hospital, but was required to be available on-call at all times when not in attendance at that Hospital, being a Hospital providing 24/7 care; and

• about whom Dr Lane had received reports of having issues of irritability and a lack of empathy.

[226] The phrase "less favourably" requires that there be two sets of circumstances - the actual and the hypothesised, so that it can be determined by comparison whether the treatment in the former is less favourable than in the latter in circumstances that are the same or not materially different.[203]

[227] In Haines v Leves ('Haines'),[204] Kirby P relevantly stated:

The words "less favourably" and "on the ground of", permit wide scope to the Tribunal in applying its judgment to the facts proved in each case. Both involve imprecise phrases which necessitate judgment and the characterisation of conduct which is impugned. The first requires a comparison of the treatment in the actual and in an hypothesised case: see Mahoney JA, Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 13. As was pointed out in that case, a "detriment" concept of discrimination has hitherto been adopted: cf Ministry of Defence v Jeremiah [1980] QB 87. The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is a differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Limited v Fletcher [1978] 1 WLR 1429 ...

The phrases "less favourable" and "on the ground of" require a classification of conduct. They are evaluative. They necessitate judgment.[205]

[228] As submitted by the Respondents,[206] Street CJ in Haines observed that '... mere difference is not enough.'[207] Chief Justice Street went on to state:

It must be shown that the difference is detrimental to the party complaining. This element of detriment pervades the whole field of anti-discrimination laws: see, for example, Ministry of Defence v Jeremiah [1980] 1 QB 87 at 104.[208]

[229] In my view, this claim by Dr Chilcott of unlawful direct age discrimination fails because there is no evidence he was treated, or was proposed to be treated, less favourably, detrimentally or treated unfavourably (within the meaning of s 15A(2)(d) of the AD Act) at all.

[230] Dr Lane gave evidence about why he sent the email to Dr Short and Ms Greenhorn on 24 February 2021. I acknowledge that, pursuant to s 10(3) of the AD Act, it is not necessary that the person who discriminates considers the treatment is less favourable. I further acknowledge that, pursuant to s 10(4) of the AD Act, Dr Lane's motive for sending the email is irrelevant.

[231] However, Dr Lane's evidence about why he sent the email to Dr Short and Ms Greenhorn is relevant in respect of determining whether, as a matter of fact, the change to on-call arrangements to which he referred was less favourable or detrimental to Dr Chilcott within the meaning of s 10(1) of the AD Act, in the particular way Dr Chilcott contended and submitted.

[232] Dr Chilcott's contentions, evidence and submissions, about why he claims Dr Lane's email to Dr Short and Ms Greenhorn was detrimental to him, are very specific.

1. Dr Paul Lane treated the Complainant less favourably than the younger less experienced doctor, Dr Short by promoting Dr Short and demoting the Complainant in relation to the on-call requirement of the Complainant's duties clearly stated in his advertised duties documentation [s 10(1) of AD Act].

1. This is a gross professional insult when the junior doctor is promoted over the senior doctor on-call, but needs to remain supervised by the demoted senior doctor as an essential component of practising requirements of the Queensland Medical Board and AHPRA. It sends a loud, albeit confusing, message to the rest of the health team as to the clinical order of medical responsibility.[209]

[234] In his evidence in chief, Dr Chilcott stated:

1. I was not opposed to giving Dr Short on-call duties. However, I was the Medical Superintendent, and I was Dr Short's official supervisor under an obligation to AHPRA. Dr Paul Lane was aware that I was a fully qualified senior GP Registrar trainer and supervisor in my position with the Australian College of Rural and Remote Medicine. I was a member of the ACRRM education and Training Committee. This was the first time, to my knowledge that Dr Paul Lane interfered in my responsibilities as Medical Superintendent. This was not about fatigue; Dr Paul Lane was clearly undermining my authority and within hours I was to learn that my future contracts with Hughenden had been cancelled.

[235] In Dr Chilcott's cross examination, the following evidence was given:

Okay. When we're talking about the priority of the two doctors, the arrangement about who was going to be the first doctor on-call, that's - that's a flexible thing that can be changed if necessary during the night or during the on - off - during the on-call period. Would you accept that proposition?‑‑‑Well, when you say flexible, who makes it flexible?

The doctors. The on-call doctors. If necessary, the second on-call doctor may respond to a first call - a call-out, for example, for any of a number of different reasons?‑‑‑The two doctors are not on an equal par.

Okay?‑‑‑Well, one of the doctors is the acting medical superintendent, and the other one is the junior doctor. And the ‑ ‑ ‑

Can I turn ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ junior doctor is under the direction of the medical superintendent.

Can I turn to the Magnetic Island roster that you were there from the 22nd of February to the 4th of March 2021. This is the - I think the last time you were engaged to Magnetic Island?‑‑‑Yes.

During that engagement, sometimes you were the only doctor on-call?‑‑‑No.

You accept that?‑‑‑All - all the time I was the only doctor on-call.

At all the time you were the only doctor on-call?‑‑‑I was the medical superintendent.

So there was no difference between your on-call responsibilities, your duties, your expectations during this engagement from any of the other ones?‑‑‑I was always the medical superintendent.

And thinking about all of your different engagements at Magnetic Island ?‑‑‑Yes.

--- you were always on-call with the same roles and responsibilities?‑‑‑Yes.

There was no difference at all?‑‑‑No. But you see - you see - that's - that's what it - where it comes down to is my medical experience, and the medical superintendent, his clinical responsibilities, his or her clinical responsibilities, are dictated by the industrial award. And it's that superintendent who's responsible for the junior doctor. The junior doctor is answerable to the superintendent. It's - it's - it's in - I haven't got it right here at the moment, but it is in the industrial award. The - the medical superintendent right of private practice award.

Can I get you to turn to paragraph 116 of your affidavit?‑‑‑One hundred and ‑ ‑ ‑

Paragraph 116, which is at page one hundred and ‑ ‑ ‑?‑‑‑Yeah.

You say there that Dr Short had been given instructions to relieve you of your after-hours duties?‑‑‑Yes.

And do you say that - that just didn't happen?‑‑‑Mmm?

That didn't happen? He never relieved you of those after-hours duties?‑‑‑Oh, I can't recall because ‑ ‑ ‑

Well, you just said that you were the only doctor on-call for the entire engagement?‑‑‑Yes.

And if that's the case, well, then, Dr Short never took on any of these on-call duties?‑‑‑Well, he was free to come in and help wherever he wanted to. He was free to do any of that, but

I was the one who was on-call. And what I said ‑ ‑ ‑

So ?‑‑‑ ‑ ‑ ‑ was that I was the one who had the responsibility under the award and he was under my direction. So you - you're listening to a whole lot of hoo-ha hoo-ha here when - when - when you're - when - when Dr Paul Lane was saying that he was going to take over my - my job. What he was saying was he was effectively sacking me as medical superintendent.

I suggest Mr Lane wasn't saying anything of the sort?‑‑‑Well, effectively that's what he was doing. He was taking over my job.

You received the same pay throughout this last engagement?‑‑‑Yes.

The same supervisory obligations?‑‑‑Yes. [210]

1. By placing the junior doctor in charge of the junior doctor's official vocational trainer, Dr Lane was intentionally humiliating and defaming Dr Chilcott's reputation in the eyes of his Remote Rural Generalist colleagues by demoting Dr Chilcott from being a MSRPP to being under the supervision of his junior doctor trainee. In this respect, Dr Lane treated Dr Chilcott with the least amount of "respect" he has at his disposal, treating Dr Chilcott, not only as a non-person but also as a non-professional, stripped of all of his professional achievements. To Dr Chilcott this was the worst possible form of defamation Dr Lane could inflict.

1. In the public health system in Australia, including rural and regional hospitals, it is commonplace for two doctors to be on-call at the same time. The junior doctor of the two is first on-call, with the more senior doctor second on-call. If there is a call out, the junior doctor would attend first. Then if the junior doctor required support, the senior doctor would be available.
2. This practice has many benefits including the gaining of experience and learning for the junior, but also the senior clinician only being disturbed when the problem is beyond the knowledge and skills of the junior. This reduces the sleep deprivation impacts on the senior doctor, ensures that they are not fatigued, but still available to deal with serious on-call issues if they arise and allows them to provide supervision to junior doctors on-call.
3. This arrangement is flexible. For example, if a junior doctor was called in for a long consult one night, then worked the next day, the senior doctor could move to first on-call to better manage the impacts of fatigue.
4. This practice does not change when a doctor is on-call. It simply establishes priority between two doctors who are on-call at the same time. So, it does not affect either doctor's responsibilities, seniority, or pay. As I understand, locums generally receive a flat daily rate of pay regardless of the number of calls they receive.
5. On 24 February 2021, I sent an email to Jennifer Greenhorn and Dr Jay Short, a junior medical officer, working at Magnetic Island HS. Consistent with the on-call practice just explained, the email requested that Dr Short be on first call when possible.

[238] As referred to earlier, the Respondents submit that, by Dr Lane's email to Dr Short, and Ms Greenhorn, Dr Chilcott did not suffer any detrimental treatment. I agree with this submission.

[239] Dr Chilcott variously describes the detrimental or less favourable treatment as:

• his demotion brought about by the promotion of Dr Short over him;

• the undermining of his authority, by Dr Lane, as Medical Superintendent at the Magnetic Island HS; and

• his sacking (dismissal) by Dr Lane as Medical Superintendent at the Magnetic Island HS.

[240] On the evidence before me, none of these alleged detriments are proven or based on any fact whatsoever. I have come to this conclusion for a number of reasons.

[241] First, in his email to Dr Short and Ms Greenhorn, Dr Lane, by the use of the words '... see what you can do', was asking the recipients to see if Dr Short could be called out first, when on-call, rather than Dr Chilcott. All that was to occur, as a consequence of Dr Lane's email, was that when Dr Chilcott and Dr Short were on-call together, Dr Short would be called first before Dr Chilcott where that arrangement could be implemented.

[242] Secondly, as a matter of fact, what Dr Lane was asking did not mean that Dr Chilcott was demoted from the position of Medical Superintendent at the Magnetic Island HS.[211] What Dr Lane was asking did not mean that Dr Short was promoted over Dr Chilcott to the position of Medical Superintendent at the Magnetic Island HS for the period of Dr Chilcott's locum engagement. Certainly, that is not what was conveyed by the text of the email. Further, on Dr Chilcott's evidence in cross-examination, as referred to earlier, there is no evidence such a demotion and promotion occurred.[212]

[243] Thirdly, as a matter of fact, what Dr Lane was asking Dr Short and Ms Greenhorn to consider did not undermine Dr Chilcott's authority as the locum Medical Superintendent at the Magnetic Island HS. On Dr Chilcott's own evidence in cross-examination, he still retained the same responsibilities and the same supervisory obligations. The fact that Dr Short might be called out first, when on-call, did not, and could not, mean that Dr Chilcott lost all supervisory or training responsibilities that he may have had in respect of Dr Short. There was no probative evidence of that from Dr Chilcott, just his speculation. Furthermore, on Dr Lane's unchallenged evidence, in respect of asking Dr Short and Ms Greenhorn to '...see what you can do' in terms of Dr Short being first call, if Dr Short required support because of the call out, Dr Chilcott would be available to provide the relevant supervision and training.[213]

[244] Fourthly, as a matter of fact, what Dr Lane was asking Dr Short and Ms Greenhorn to consider did not mean that Dr Chilcott was dismissed or sacked from his locum role as Medical Superintendent. Leaving aside my conclusion that Dr Chilcott was not an employee of the Health Service who Dr Lane could dismiss, on Dr Chilcott's own evidence in cross-examination, as referred to earlier and as emphasised by me, he was not relieved of his locum assignment as Medical Superintendent at the Magnetic Island HS in that he retained the same responsibilities and supervisory obligations. On Dr Chilcott's evidence, after 24 February 2021 (the date of Dr Lane's email to Dr Short and Ms Greenhorn), he completed the assignment he had at Magnetic Island HS at that time, namely from 22 February 2021 to 4 March 2021).[214]

[245] For the above reasons, Dr Chilcott was not treated less favourably, and he was not proposed to be treated less favourably, as a consequence of Dr Lane's email to Dr Short and Ms Greenhorn in the way Dr Chilcott contends and argues. The alleged less favourable or detrimental treatment simply did not occur; and the alleged less favourable or detrimental treatment was simply not proposed.

[246] For this reason, Dr Chilcott's claim, that he was the subject of unlawful age discrimination in respect of the changes to the on-call arrangements at the Magnetic Island HS, fails.

[247] Two further things may be confidently stated about the evidence before me.

[248] One, in my judgment, the actual treatment by Dr Lane of Dr Chilcott was not less favourable treatment of Dr Chilcott, it was not detrimental to Dr Chilcott and did not amount to unfavourable treatment of Dr Chilcott in connection with work.

[249] Dr Lane's request to Dr Short and Ms Greenhorn was to consider having Dr Short to be the first doctor called out when Dr Short was on-call with Dr Chilcott. This was to allow Dr Chilcott to get less disturbed sleep by being second call when on-call.

[250] The correct characterisation of the actual treatment by Dr Lane (noting that Dr Chilcott's evidence, about whether Dr Short did act as first call, is vague - see the cross-examination of Dr Chilcott at T 1-29, l 47 to T 1-30, l 17) is that it was not, and would not have been, detrimental to Dr Chilcott. As a matter of ordinary commonsense, a decision which allows a medical practitioner, who is on-call, to have less disturbed sleep, is beneficial to that person. There is no evidence of any other detrimental treatment to Dr Chilcott. As confirmed by Dr Chilcott in his evidence given in cross-examination, he received the same pay throughout his last engagement at the Magnetic Island HS, and he had the same responsibilities and the same supervisory obligations.[215]

[251] Two, the Respondents submit that the reason for the on-call roster change proposed by Dr Lane was fatigue and not age,[216] and that in his cross-examination of Dr Lane, Dr Chilcott did not challenge Dr Lane's evidence that the proposed change to the on-call arrangements was because of Dr Chilcott's fatigue.[217]

[252] Pursuant to s 10(4) of the AD Act, if there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute '... is a substantial reason for the treatment.' In my view, having regard to the text and context of s 10(4) of the AD Act, the phrase '... substantial reason' should be given its ordinary meaning.

[253] Dr Lane's consistent evidence in cross-examination was that the reason he was asking to see if Dr Short could be given first call was because of his concern about Dr Chilcott being fatigued.[218] Indeed, as the Respondents' submit, Dr Lane's unchallenged evidence was that, in his opinion, the reports he received about Dr Chilcott's behaviour indicated symptoms of fatigue.[219]

[254] Obviously, having regard to the text of Dr Lane's email to Dr Short and Ms Greenhorn sent on 24 February 2024, an expressed reason Dr Lane asked them to look at the rostering so that Dr Short could do '... some first call' was by reference to Dr Chilcott being '...an older GP.' However, reading the email as a whole, in making that request, Dr Lane referred to Dr Chilcott as '...an older GP who would benefit from some first call by' Dr Short '... to decrease the impact of fatigue.'

[255] Having regard to the content of Dr Lane's email, my judgment is that there were two reasons why Dr Lane suggested to Dr Short and Ms Greenhorn that they examine the upcoming rosters to '... see what you can do' about Dr Short being first call. Given the text of Dr Lane's email, one reason was obviously that Dr Chilcott was an older person who was a doctor.

[256] However, on considering Dr Lane's email as a whole, the clearly expressed purpose was to decrease the impact of fatigue on Dr Chilcott. Dr Lane's evidence in chief, and his evidence in cross-examination, was that the reason he was proposing the roster changes was because he was concerned that Dr Chilcott was experiencing fatigue and he wanted to reduce Dr Chilcott's fatigue. While Dr Lane was challenged in cross-examination about why he came to the view that Dr Chilcott was fatigued, Dr Lane was not challenged about his evidence that the reason he proposed the on-call roster change was because of his view that Dr Chilcott was fatigued. [220] The email evidence, to the extent it refers to decreasing the impact of fatigue on Dr Chilcott, and Dr Lane's evidence in chief and in cross-examination, strongly points to the conclusion that it was Dr Lane's view that Dr Chilcott was fatigued as being the substantial reason why Dr Lane was asking to see if the on-call rosters could be changed so that Dr Short would be first call. Indeed, the evidence relied on by Dr Lane to form his view that Dr Chilcott was fatigued was the complaints about Dr Chilcott's behaviour at Hughenden HS in February 2021.[221] Some of those matters were the subject of my findings earlier in these reasons that led to my conclusion that it was Dr Chilcott's conduct at the Hughenden HS that was the real reason the further Hughenden assignment was cancelled.

[257] For all these reasons, considering the evidence as a whole, I find that the substantial reason Dr Lane sent the email to Dr Short and Ms Greenhorn was because of Dr Lane's opinion that Dr Chilcott was suffering from fatigue as a medical practitioner.

[258] Even if I am wrong about that conclusion, and the real and substantial reason Dr Lane wanted to make changes to the on-call rosters was that Dr Chilcott was an older person, I still would not have come to the conclusion that Dr Lane directly discriminated against Dr Chilcott on the basis of his age.

[259] I have described the hypothetical comparator as a Medical Superintendent at the Magnetic Island Hospital, who is in a younger age group to Dr Chilcott and who is not close to retirement, who, while not being required to work at least eight hours per day at the Magnetic Island Hospital, was required to be on-call at all times when not in attendance at that 24/7 care Hospital, and about whom Dr Lane had received reports of being irritable and having a lack of empathy. In my judgment, Dr Lane would have treated, or would have proposed to treat, the hypothetical comparator in exactly the same way as he treated, or proposed to treat, Dr Chilcott.

[260] That is, leaving aside my conclusion that Dr Lane's treatment was not less favourable, was not detrimental and was not unfavourable treatment in connection with work, in my judgment, Dr Lane would have made the changes to the on-call arrangements to help the hypothetical comparator get less disturbed sleep by being second call when on-call.

[261] I come to this conclusion because of Dr Lane's evidence in chief, namely:

• his own experience from working with fatigue and his experience of working with other doctors with fatigue;[222]

• that the symptoms of such fatigue, include depression, an intolerant, irritated or cold bedside manner with loss of empathy, seeming tired or 'burnt out' and avoiding a patient's gaze or questions;[223] and

• - that disrupted sleep has significant consequences for cognitive functioning, namely, disrupted sleep can impair cognitive performance and induce sleepiness, fatigue and mood changes;

• - that the effects of sleep disruption are particularly pertinent for populations who experience fragmented sleep opportunities because of occupational demands such as being on-call so that fatigue is an ever-present risk associated with on-call work; and

• - that sleep disruption can have a more significant impact on older people than younger people, so that many medical departments across Australia limit the amount of after-hours or on-call work that senior doctors perform.[224]

[262] Dr Lane's evidence on these specific points was unchallenged.

[263] I acknowledge Dr Lane's evidence that sleep disruption can have an even more significant impact on older people. I further acknowledge Dr Lane's evidence that, for that reason, medical departments across Australia limit the amount of after-hours or on-call work that senior doctors perform. However, Dr Lane's evidence in chief was that, in respect of the on-call roster arrangement he described, if a junior doctor was called in for a long consult one night, and then worked the next day, the senior doctor could move to first call to better manage the impact of fatigue.[225] Further, Dr Lane, in cross-examination:

• did not give any evidence that younger doctors are not affected by fatigue when providing 24/7 or after hours care; and

• did not give any evidence that younger doctors were immune from the effects of sleep disruption, as he has described, and in the circumstances he described.[226]

[264] Having regard to Dr Lane's evidence, my judgment is that the hypothetical comparator would have been treated in exactly the same way as Dr Lane treated Dr Chilcott. Having regard to Dr Lane's unchallenged evidence to which I have referred, I find that a younger doctor, in the same or not materially different circumstances as Dr Chilcott at the Magnetic Island HS, and in respect of whom Dr Lane, from the reports he received about the doctor, formed the view that the doctor was fatigued, would have been treated the same way. That is, by changing the on-call roster to give the fatigued younger doctor less disturbed sleep by the other rostered doctor being given first call.

[265] For all these reasons, this aspect of Dr Chilcott's complaint fails.

[266] Pursuant to s 210 of the AD Act, Dr Chilcott's complaint, that he was the subject of unlawful age discrimination by the changes made by Dr Lane to the on-call arrangements at the Magnetic Island HS, is dismissed.

[267] The Respondents submit that, having regard to Dr Chilcott's contentions, he does not seek any relief within the Commission's jurisdiction for his claims of unlawfulness under the HR Act.[227] This submission is made because the apology sought by Dr Chilcott (from Dr Lane), and the compensation sought by Dr Chilcott in the prayer for relief in his contentions, concern his claims of unlawful age discrimination.[228]

[268] The Respondents further submit that because Dr Chilcott does not seek any relief within the Commission's jurisdiction in respect of his claims of unlawfulness under the HR Act, then it is not necessary or desirable in the public interest to determine those claims.[229] Undoubtedly, I have power to make such a decision in relation to Dr Chilcott's claims under the HR Act by virtue of s 541(b)(ii) of the IR Act. In Chilcott No. 1, I set out the applicable principles in respect of the application of that provision.[230]

[269] The Respondents alternative submission is that:

• s 15 of the HR Act, which is to ensure that laws are fairly applied and administered, has no application to Dr Chilcott's complaint which is about conduct;[231] and

• s 31(1) of the HR Act had no application to Dr Chilcott because, contrary to Dr Chilcott's outline of argument,[232] he has not been charged with a criminal offence.[233]

[270] In his final written submissions, Dr Chilcott does not deal with his claims under the HR Act other than making one vague claim that his human rights had been breached by the cancellation of the further Hughenden assignment.[234] In this respect, Dr Chilcott does not claim that his human rights pursuant to s 15 or s 31 of the HR Act have been unreasonably limited. That specific claim concerns s 23(2)(b) of the HR Act which provides that every eligible person has the right, and is to have the opportunity, without discrimination to have access, on general terms of equality, to the public service and to public office. Such a claim about s 23(2)(b) of the HR Act was never a claim made by Dr Chilcott for which the Respondents had any notice. For this reason, I will not further consider that specific claim.

[271] Other than that, Dr Chilcott does not, in respect of the cancellation of the further Hughenden assignment and in respect of the changes made to the on-call arrangements at the Magnetic Island HS, make any submissions that his human rights pursuant to s 15 and, or in the alternative, s 31 of the HR Act were limited. As the Respondents correctly submitted, Dr Chilcott bore the onus of proof in relation to whether his human rights, under s 15 and, or in the alternative, s 31 of the HR Act, had been limited.

[272] Because Dr Chilcott has not addressed those claims, they have not been made out.

[273] Furthermore, to the extent Dr Chilcott, in his outline of argument, submitted that his human right pursuant to s 31(1) of the HR Act had been unreasonably limited, that claim could not be made out because, contrary to his outline, there is no evidence that Dr Chilcott was charged with a criminal offence.

[274] As a consequence, Dr Chilcott's claims under the HR Act, in respect of the cancellation of the further Hughenden assignment and in respect of the changes made to the on-call arrangements at the Magnetic Island HS, are dismissed. Dr Chilcott has not discharged the onus on him to prove that either of those human rights were limited by the actions of Dr Lane.

[275] In my view, the power to dismiss those claims arises under s 451(1) of the IR Act which provides that the Commission has the power to do all things necessary or convenient to be done for the performance of its functions.

[276] I have found that the Respondents are not liable in respect of any of the complaints made by Dr Chilcott.

[277] However, in accordance with ordinary practice,[235] I will determine the remedies I would have ordered if I had found against the Respondents on liability under the AD Act.

• general damages, in the amount of $100,000, for depression resulting in '...isolation';

• general damages, in the amount of $200,000, for professional humiliation;

• general damages, in the amount of $200,000, for professional humiliation by Dr Lane's public demotion of him;

• general damages, in the amount of $1,000,000, for 'the de-humanisation of the sham employment arrangement';

• - in the amount of $64,000 for the loss of assignments at the Hughenden HS (14 days at $2000 per day) and at the Magnetic Island HS (20 days at $1800 per day); and

• - in the amount of $24, 511 for loss of salary sacrifice at $193 per day over 127 days from 10 August 2020 to 4 March 2021; and

• future economic loss in the amount of $378, 670 for the period between April 2021 to September 2022 in respect of him working at the Magnetic Island HS.

• because Dr Lane maintains that he did not discriminate against Dr Chilcott, a private apology would be disingenuous such that there would be no utility in ordering Dr Lane to so apologise[236] and further, that ordering an apology would go beyond what is necessary to recognise any wrongdoing when a finding against Dr Lane and compensation would adequately and appropriately recognise any inappropriateness in Dr Lane's conduct;[237]

• in terms of the general damages sought for severe depression, Dr Chilcott has led no evidence of such a diagnosis and its cause;[238]

• in terms of the general damages sought for isolation and professional humiliation, Dr Chilcott has led no evidence of him suffering from isolation and has led no evidence of his professional humiliation;[239]

• in terms of the general damages sought for professional humiliation by way of public demotion, Dr Chilcott has led no evidence of that;[240] and

• in terms of general damages sought for a sham employment arrangement, such a matter is not justiciable by the Commission in respect of Dr Chilcott's complaint. [241]

[280] The Respondents did not make any other submissions about general damages or past economic loss and indicated that they would seek leave to make such submissions if it was necessary.

[281] In respect of Dr Chilcott's claim about loss of opportunity, the Respondents submitted that Dr Chilcott's claim was not that the Health Service made a decision not to engage him in the future because of his age and, as a consequence, he cannot claim compensation for that alleged loss.[242]

[282] Furthermore, the Respondents submit that Dr Chilcott only seeks damages for loss of opportunity at the Magnetic Island HS and, because Dr Chilcott abandoned his claim that the decision to cancel his Magnetic Island HS engagement involved discrimination, he cannot maintain such a claim for future economic loss.

[283] In addition, the Respondents submit that because Dr Chilcott did not seek damages for loss of opportunity in relation to any possible Hughenden HS engagements, he is not entitled to any relief for any such loss; and even if he did seek such relief, on Ms Petrie's unchallenged evidence that he could not return to work there, it is unlikely any such loss was caused by the cancellation of the further Hughenden assignment.[243]

[284] Pursuant to s 209(1)(d) of the AD Act, the Commission can order '...the respondent to make a private apology.' As the Respondents submit, courts have held apologies to be inappropriate where findings that discrimination has occurred are sufficient to recognise the harm done by the respondents.[244]

[285] Dr Lane is clear in his evidence that the decisions he made to cancel the further Hughenden assignment, and to make the changes to the on-call arrangements at the Magnetic Island HS, were not unlawful.

[286] If I had found that Dr Lane had unlawfully discriminated against Dr Chilcott on the basis of his age by cancelling the further Hughenden assignment, and by making the changes to the on-call arrangements at the Magnetic Island HS, I would not have ordered Dr Lane to make a private apology.

[287] As referred to above, the fact that unlawful discrimination would have been found would have been sufficient to recognise the harm done. Furthermore, because Dr Lane was clear in his evidence that he did not act unlawfully, then any private apology he was ordered to make to Dr Chilcott would be disingenuous.

[288] For these reasons, if I had found against Dr Lane on liability, I would not have ordered that Dr Lane make a private apology to Dr Chilcott.

The correct approach to the assessment of non-economic and economic loss

[289] In Neil v Lee[245] I relevantly stated (citations omitted):

[111] In my view, a number of principles about the application of s 209(1)(b) of the AD Act may be derived from the approach taken to the application of s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 ('the AHRCA').

[112] First, the power provided by s 209(1)(b) of the AD Act, to order compensation for loss and damage caused by the contravening conduct of a respondent, is a statutory power which is conferred in the context of the legislative scheme dealing with unlawful discrimination. Thus, the Commission, in assessing an amount of loss or damage for the purpose of making an order under s 209(1)(b) of the AD Act, is attributing legal responsibility, namely, blame, in order to give effect to a statute with a discernible purpose; and that purpose provides a guide to the requirements of justice and equity in the case where the requirements are determined by the judge's concept of principle and of the statutory purpose.

[113] Secondly, unlawful discrimination is proscribed in several different fields of activity which give rise to the need for different kinds of remedies. Unlawful discrimination may occur in a setting which aligns its consequences closely with the consequences of common law causes of action such as breach of contract, or it may occur in a setting which aligns its consequences with common law causes of action such as intentional torts. In other circumstances the statutory cause of action for unlawful discrimination has no close relative in the common law which is why it is important to recall that it is the words of the statute which will provide the criterion for such an order, not common law principles.

[114] In Richardson v Oracle Corporation Australia Pty Ltd ('Oracle'), which was a case involving sexual harassment under the Sex Discrimination Act 1984, Kenny J stated:

1. Section 46PO(4)(d) of the AHRC Act supplies the governing criterion for the assessment of the damages to be awarded under this provision. That is, s 46PO(4)(d) contemplates that these damages will be 'by way of compensation' (emphasis added). In giving content to the concept of compensatory damages in this context, the authorities establish that the court may be guided, at the assessment stage, by the general principles governing the assessment of damages in tort: see Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 (Hall v A &A Sheiban) at 238-239 (Lockhart J), 256-257 (Wilcox J); and 281 (French J) and Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 (Qantas Airways Ltd v Gama) at [94] (French and Jacobson JJ). In the latter case, French and Jacobson JJ stated (at [94]) in respect of s 46PO(4) (in its current form):

The damages which can be awarded under s 46PO(4) ... are damages ''by way of compensation for any loss or damage suffered because of the conduct of the respondent''. Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Cth) the appropriate measure will be analogous to the tortious. That may not be in every case. Ultimately, it is the words of the statute that set the criterion for any award.

[115] In Watts v Australian Postal Corporation ('Watts'), a case concerning a contravention of the Disability Discrimination Act 1992 where compensation was sought under section 46PO(4) of the AHRCA, Mortimer J relevantly stated:

1. The provision grants plenary power to the Court to make orders ''as it thinks fit''. In particular, subs 4(d) provides the Court with a ''wide discretion as to the amount of compensation the Court may order for loss or damage suffered because of unlawful discrimination'': Ewin v Vergara (No 3) [2013] FCA 1311 at [601] per Bromberg J. The Court's exercise of that discretion is to be governed by the text of the relevant statute: Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at [94] per French and Jacobson JJ. The principles relevant to the assessment of damages in tort may be of assistance (see Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 239 per Lockhart J, at 281 per French J), but only to the extent that they do not conflict with the words of the statute: Ewin [2013] FCA 1311 at [604] per Bromberg J.

[116] Thirdly, consideration must be given to the phrase used in s 209(1)(b) of the AD Act, namely, compensation for loss or damage '... caused by the contravention.' In Watts, Mortimer J stated of s 46PO(4)(d) of the AHRCA:

1. An order for compensation may be made for "any loss or damage suffered because of the conduct of the respondent''. Phrases such as "by reason of", "because of" and "by virtue of'' require a "practical application of causation principles": Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 1643; (1998) 90 FCR 202 at 213. A phrase like "because of" "implies a relationship of cause and effect" between the unlawful conduct of the respondent and the damage incurred by the applicant: see Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 321 per Lockhart J; Ewin at [605].

[117] The statutory phrase '... caused by' connotes a direct or proximate relationship of cause and effect. Thus, there is no reason the construction given in Watts to the phrase '... because of' in s 46PO(4)(d) of the AHRCA should not be given to the phrase '...caused by' in s 209(1)(b) of the AD Act. In my view, given the similar statutory text, like s 46PO(4)(d) of the AHRCA, s 209(1)(b) of the AD Act is concerned with the relationship of cause and effect.

[118] Further where the Commission is considering a statutory power to award damages, the statutory objects and purposes may inform the proper approach to causation in a particular case.

[290] Section 209(1)(b) of the AD Act relevantly provides that if the Commission decides that the respondent contravened the AD Act, it may make an order '... requiring the respondent to pay to an affected person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention.' By virtue of s 209(6)(a) of the AD Act, Dr Chilcott, as the complainant, would relevantly be an '... affected person.' The purpose of the Commission's statutory power to award damages for any loss or damage suffered because of the conduct is to compensate the complainant, not punish the respondent.[246]

[291] Thus, in the assessment of compensation under the AD Act, subject to the words of the statute, the appropriate measure of compensatory damages may be informed by the tortious measure,[247] namely, to compare the position in which the complainant might have been expected to be in if the discriminatory conduct had not occurred.[248]

[292] An award of damages by way of compensation is to compensate for the injury suffered by the person[249] and the analogy between sums awarded for pain and suffering and loss of enjoyment of life caused by unlawful discrimination with sums awarded in the tortious context is particularly obvious.[250]

[293] As I read Dr Chilcott's affidavit, which was his evidence in chief, my view is that the real issues that seem to have affected him were:

• his claim that in respect of his engagement, he was the subject of a sham arrangement;[251]

• the way Dr Lane handled the complaint about him made by Ms Petrie about the events of 19 February 2021;[252]

• his contention that, on 8 February 2021 at the Hughenden HS, Ms Herrod had inappropriately and irresponsibly incited a patient to become quite aggressive by telling her that the medication he had prescribed could harm or possibly kill her unborn baby;[253]

• his contention that, on 19 February 2021 at the Hughenden HS, Ms Struthers countermanded his instruction to administer the drug that he had prescribed for a palliative care patient;[254] and,

• his belief that he did not engage in any inappropriate conduct on 8 and 19 February 2021 at the Hughenden HS.[255]

[294] Dr Chilcott has led no expert evidence that he suffered from depression as a consequence of the cancellation of the further Hughenden assignment and the changes made to the on-call arrangements at the Magnetic Island HS.

[295] Further, Dr Chilcott does not give any clear evidence about the effect on him of the cancellation of the further Hughenden assignment and by the changes made to the on-call arrangements at the Magnetic Island HS.

[296] No doubt, Dr Chilcott, given his long career in practising rural and remote medicine, would have felt humiliated by the cancellation of the further Hughenden assignment and the changes made to the on-call arrangements at the Magnetic Island HS, if those actions amounted to direct age discrimination in the work area. I stress that in relation to the changes made by Dr Lane to the on-call arrangements at the Magnetic Island HS, if I had found that decision amounted to unlawful age discrimination, it would have only been on the basis of the actual implementation of the on-call arrangements as proposed by Dr Lane, namely, that Dr Short would be first call, as opposed to Dr Chilcott's claim that the introduction of those on-call arrangements amounted to a removal of his responsibilities as Medical Superintendent or his demotion or dismissal. For the reasons I have given earlier, there is no evidence that decision amounted to the detriment claimed by Dr Chilcott. The evidence Dr Chilcott gives about the effect on him by the on-call roster changes, in terms of his humiliation, concerns his incorrect view that the changes resulted in his demotion or dismissal.

[297] Furthermore, for the reasons I have given earlier, it seems to me that the real distress suffered by Dr Chilcott was connected with:

• his view that he was engaged under a sham arrangement;

• his view about how Dr Lane dealt with the complaint made about him by Ms Petrie in respect of what occurred on 19 February 2021 at the Hughenden HS;

• his view about the interactions he had with Ms Herrod at the Hughenden HS on 8 February 2021;

• his view about the interactions he had with Ms Struthers at the Hughenden HS on 19 February 2021; and

• his views that Ms Herrod and Ms Struthers had acted contrary to his clinical decisions.

[298] While it seems obvious from Dr Chilcott's evidence in chief that these matters caused him humiliation and distress, none of those matters could result in an award of general damages to Dr Chilcott because they do not have any causal connection with any contravention of the AD Act, by way of direct discrimination, on the basis of his age.

[299] Dr Chilcott does not refer to any comparable cases. The Respondents did not refer to any comparable cases.

[300] In Hopper & Others v Virgin Blue Airlines Pty Ltd,[256] the amount of $5000 inclusive of interest was awarded to the complainants who had been directly discriminated against on the basis of their age when they were unsuccessful applicants for employment.[257]

[301] In Talbot v Sperling Tourism & Investments Pty Ltd ('Talbot'),[258] $20,000 was awarded as general damages when it was found an employee, who had been dismissed, was the subject of direct discrimination on the basis of age.[259]

[302] Dr Chilcott was not an employee of the Health Service, but if I had found he was the subject of direct discrimination as contended, the Respondents would have contravened s 15A(2)(b) and (d) of the AD Act and an amount of general damages should have been awarded. The amount would have had to be more than a nominal amount given what would have been some humiliation suffered by Dr Chilcott. Damages for non-economic loss should not be minimal as this would tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation.[260]

[303] There is simply no evidence before me that the amount of general damages, as claimed by Dr Chilcott, is in any way justified.

[304] The case of Talbot is the closest in facts to the present case but only to the extent of the cancellation of the further Hughenden assignment. As I have stated, Dr Chilcott was not an employee of the Health Service. In light of the above, if I had found that Dr Chilcott had been the subject of direct age discrimination as he contended, then an award of general damages in the amount of $10,000 would have been appropriate for the Respondents to compensate Dr Chilcott for the humiliation he would have suffered. [261]

[305] In my view, the only economic loss that would have been suffered by Dr Chilcott, that had a causal connection with the two decisions made by Dr Lane, is the loss of remuneration for the further Hughenden assignment that was cancelled.

[306] On the evidence before me, that was for the period 5 March 2021 to 19 March 2021.[262] On Dr Chilcott's contentions, he was being paid $2000 per day when working at the Hughenden HS which was to be for a period of 14 days. Dr Chilcott claims the amount of $2000 per day on the basis of deducting the daily commission to be received by Global Medics.[263] On that basis, I would have assessed Dr Chilcott's economic loss as being $28,000. Because of the short period of time of that further assignment and the relative remoteness of Hughenden, I would not reduce this amount in respect of any contingencies.

[307] Dr Chilcott's claim for $24,511 in respect of loss of salary sacrifice is misconceived. Dr Chilcott does not base that claim on any alleged contravention of the AD Act.

[308] There could be no past economic loss in relation to the decision about making changes to the on-call arrangements at the Magnetic Island HS because, on Dr Chilcott's own evidence, he suffered no remunerative loss following that treatment by Dr Lane.

[309] Dr Chilcott could not claim any future economic loss for the reasons advanced by the Respondents. Dr Chilcott did not contend that age discrimination was a reason he was not further engaged at the Hughenden HS or at the Magnetic Island HS.

• pursuant to s 210 of the Anti-Discrimination Act 1991, I dismiss Dr Chilcott's two claims of unlawful age discrimination; and

• pursuant to s 451(1) of the IR Act, I dismiss Dr Chilcott's claims under the HR Act.

1. Pursuant to s 210 of the Anti-Discrimination Act 1991, the Complainant's complaints, that the Respondents directly discriminated against the Complainant on the basis of his age, are dismissed.

1. Pursuant to s 451(1) of the Industrial Relations Act 2016, the Complainant's complaints, that the Respondents made decisions that were unlawful under s 58 of the Human Rights Act 2019, are dismissed.

[1] [2025] QIRC 032 ('Chilcott No. 1').

[2] Exhibit 5, para. 4, page 426 of the Hearing Book prepared by Crown Law ('HB').

[3] Exhibit 6, para. 2, page 608 of the HB.

[4] Exhibit 7, para. 7, page 501 of the HB.

[5] Exhibit 4, exhibit 'PBC-38', page 372 of the HB.

[6] Exhibit 4, exhibit 'PBC-38', pages 370-372 of the HB.

[7] Exhibit 4, paras. [3]-[7], page 141 of the HB and exhibit 'PBC-38' pages 370-372 of the HB.

[8] Exhibit 7, exhibit 'PL-5', page 576 of the HB. Emphasis added.

[11] The closing submissions of the Townsville Hospital and Health Service and Dr Paul Lane filed on 3 October 2025 ('the Respondents' closing submissions'), paras. 1-6.

[12] Respect at Work and Other Matters Amendment Act 2024, s 2(1)(b).

[13] Introduced by s 51 of the Respect at Work and Other Matters Amendment Act 2024.

[14] Respect at Work and Other Matters Amendment Act 2024, s 2(2)(a).

[15] Respect at Work and Other Matters Amendment Act 2024, s 2(2)(a).

[16] Acts Interpretation Act 1954, s 15A.

[17] Respect at Work and Other Matters Amendment Act 2024, s 2(2)(a) as amended by s 53(1) and s 53(2) of the Crime and Corruption (Restoring Reporting Powers) and Other Legislation Amendment Act 2025. Prior to the operation of s 53(1) and s 53(2) of the Crime and Corruption (Restoring Reporting Powers) and Other Legislation Amendment Act 2025, s 7B of the Respect at Work and Other Matters Amendment Act 2024 was to commence on 1 July 2025.

[18] The Respondents' closing submissions, para. 43.

[19] [2021] QSC 273; (2021) 9 QR 250.

[20] [2018] QCAT 154 ('Jenkins').

[21] See also Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537, [123]-[139] (Branson J, French and Jacobsen JJ at [110] generally agreeing on this point.

[22] [2024] FCA 369; (2024) 422 ALR 507.

[23] SQH v Scott [2022] QSC 16, [337] (Williams J).

[24] The Respondents' contentions, para. 32. a.

[25] The Respondents' contentions, para. 32. b.

[26] [2007] QSC 075 ('Virgin').

[27] The Respondents' closing submissions, para. 2.

[28] Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 ('Purvis'), [213] (Gummow, Hayne and Heydon JJ) .

[29] Waterhouse v Bell (1991) 25 NSWLR 99, 105 (Clarke JA, Kirby P at 100 and Hope A-AJ at 117 agreeing) and Purvis (n 28) [231]-[232].

[30] See Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 356 FCR 369, [39]-[40] (Bromberg J, Griffiths J at [179] and Bromwich J at [213] agreeing on this point).

[31] Purvis (n 28), [231]. See also Edwards v Hillier & Educang Limited t/a Forest Lake College [2006] QADT 34 [84]- [91] (President Dalton SC) and Ryan v Commissioner of Police, NSW Police Force (No 4) [2023] FCA 1016 ('Ryan') [78]-[97] (Abraham J).

[33] [2006] QADT 34.

[34] [2013] QCAT 251.

[36] The Respondents' closing submissions, [5].

[37] Dr Chilcott's contentions, para. 5.

[38] The closing submissions of Dr Peter Chilcott filed on 29 October 2025 ('Dr Chilcott's closing submissions'), para. 6.

[40] Dr Chilcott's contentions, paras. 1 to 21.

[41] Dr Chilcott's contentions, para. 58 and the Orders 1 to 5 sought by Dr Chilcott in the prayer for relief.

[42] Dr Chilcott's closing submissions, para. 68.

[43] Dr Chilcott's closing submissions, para. 106.

[44] The Respondents' contentions, para. 4.

[45] The Respondent's closing submissions, para. 4.

[46] Dr Chilcott's closing submissions, paras. 2-6. The Locum Policy is Exhibit 6, exhibit 'RH 2', pages 904 -917 of the HB.

[48] Exhibit 6, para. 21 and exhibit 'RH 3' pages 919-1024 of the HB.

[49] Dr Chilcott's contentions, para. 2.

[50] Exhibit 6, para. 12 and exhibit 'RH 1' pages 837-901 of the HB.

[51] Exhibit 6, exhibit 'RH 1', pages 881-882 of the HB.

[52] Clause 1 of Schedule C to the Deed exhaustively defined 'Locum Engagement' as:

[A]n arrangement made in accordance with the Standing Offer Arrangement Deed in which the Supplier provides a Locum Medical Officer for a period of not more than six months, to provide specified medical services for a Customer.'- Exhibit 6, exhibit 'RH 1', page 878 of the HB.

[53] Exhibit 6, exhibit 'RH 1', page 885 of the HB.

[54] See for example. Dr Chilcott's engagement as a locum Medical Director, Rural & Indigenous Health Service Group at the Hughenden HS between 10 August 2020 and 26 August 2020, Exhibit 6, exhibit 'RH 3' pages 919 to 931 of the HB.

[56] See as an example: Exhibit 6, exhibit 'RH 3', page 931 of the HB.

[57] Exhibit 4, paras. 11-12 and Exhibit 6, para. 21(a).

[58] Exhibit 6, para. 21 and exhibit 'RH 3', pages 919 to 1024 of the HB

[60] Dr Chilcott's contentions, para. 12 and Exhibit 6, para, 21(m), and exhibit 'RH 3', pages 1011-1024 of the HB.

[61] The Respondents' closing submissions, paras. 8-12.

[62] Dr Chilcott's closing submissions, para. 21.

[63] Dr Chilcott's closing submissions, paras. 32-56.

[64] Dr Chilcott's closing submissions, paras. 65-66, paras. 71-75 and paras. 101-106.

[68] Exhibit 5, paras. 41 and 43 and exhibit 'KP 2', pages 479-480 of the HB.

[69] Exhibit 5, para. 44 and exhibit 'KP 2', page 478 of the HB.

[70] Exhibit 6, para. 28 and exhibit 'RH 6', page 1031 of the HB.

[71] Exhibit 5, para. 59 and exhibit 'KP 5' page 494 of the HB.

[73] Exhibit 7, exhibit 'RH 7', page 1035 of the HB.

[74] Exhibit 7, paras. 26-32 and exhibits 'PL 1', pages 561-563 of the HB and 'PL 2', pages 565-566 of the HB.

[75] Exhibit 7, exhibit 'PL 2', page 565 of the HB.

[83] The Respondents' closing submissions, para. 11(a).

[84] Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362, 370-371 (Gibbs J, Stephen and Murphy JJ at 372 generally agreeing) and Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322, [77] (Mansfield and Gilmour JJ).

[86] Exhibit 5, exhibit 'KP 4', page 492 of the HB. My emphasis added.

[90] Exhibit 6, para. 32 and exhibit 'RH 8', pages 1046-1048 of the HB.

[113] Exhibit 6, para. 42 and exhibit 'RH 9', pages 1050-1051 of the HB.

[114] Dr Chilcott's closing submissions, paras. 32-38.

[115] Dr Chilcott's closing submissions, paras. 39-55.

[116] Dr Chilcott's closing submissions, para. 101.

[117] The substance of the complaint was about Dr Chilcott's conduct and manner and not his clinical competence: Exhibit 7, exhibit PL 12, page 593 of the HB.

[119] Dr Chilcott's closing submissions, paras. 71-75 and Exhibit 7, exhibit PL 13, page 597 of the HB. This draft letter was sent by email from Dr Lane to officers within the Health Service on 9 November 2020.

[120] Dr Chilcott's closing submissions, paras. 71-75 and Exhibit 7, exhibit PL 14, page 600 of the HB. This draft letter was sent by email from Dr Lane to an officer within the Health Service on 12 November 2020.

[121] Exhibit 7, exhibit 'PL 5', page 576 of the HB.

[122] Dr Chilcott's closing submissions, para. 66.

[123] Dr Chilcott's closing submissions, paras. 65, 70 and 106 and Exhibit 7, exhibit 'PL 11', page 591 of the HB.

[124] The Respondents' closing submissions, paras. 8-9.

[125] The Respondents' closing submissions, para. 10.

[126] The Respondents' closing submissions, para, 11.

[127] The Respondents' closing submissions, paras. 13-15.

[128] The Respondents' closing submissions, para. 14 which, in turn, referred to the Respondents' outline of argument filed on 23 May 2025 ('the Respondents' outline'), paras 18-22.

[129] The Respondents closing submissions, para. 15.

[130] The Respondents closing submissions, para. 16.

[131] On the unchallenged evidence before me, Dr Lane made this decision jointly with Ms Heather: Exhibit 7 para. 49 and Exhibit 6, paras. 9, 26 and 40.

[132] Australian Securities and Investments Commission v Big Star Energy Ltd and Anor (No 3) [2020] FCA 1442; (2020) 389 ALR 17, [30] (Banks-Smith J), citing Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521, 534-535 (Gibbs CJ and Mason J).

[133] [2011] FCA 1408; (2011) 198 FCR 514.

[135] [1999] QADT 4 ('McRosite').

[137] [2025] FCA 420.

[138] T 1-57, ll 27-34, T 1-60, l 34-35, T 1-61, ll 13-21, 1-62, ll 12-18, T 1-63, l 6, and T 1-66, ll 12-18.

[139] [2025] FCA 669.

[140] See also Al Muderis v Nine Network Australia Pty Limited (Trial Judgement) [2025] FCA 909 where Abraham J stated:

154 The applicant submitted that fact-finding should be based, as much as possible, on "contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]. Contemporary documents are usually the most reliable source of evidence as to what occurred and are usually a good reference point for assessing the reliability of witness testimony: ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [25]. While the evidence of witnesses should not be disregarded, greater weight is usually accorded to contemporaneous documentary evidence, citing Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 (Bathurst) at [1247]-[1248]; Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 at [157]; Volonakis v Erceg [2019] NSWSC 1875 (Volonakis) at [150]; Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427 (Sampson v Tannous) at [61].

[141] Dr Chilcott's closing submissions, para. 21.

[142] Dr Chilcott's closing submissions, para. 23.

[143] Exhibit 5, exhibit 'KP 4', page 492 of the HB.

[148] The complaint resolution process referred to by Dr Chilcott is contained in a document entitled 'Customer complaint management', being a Department of Health standard, which is exhibit 'PBC 49' to Exhibit 4, pages 412-420 of the HB. See also T 2-35, ll 18-46.

[151] The cross-examination of Ms Heather covers T 2-4, l 34 to T 2-20, l 20.

[152] Exhibit 7, exhibit 'PL 5', page 576 of the HB.

[153] Exhibit 7, exhibit 'PL 5', page 578 of the HB.

[154] Exhibit 6, para, 21 (g) [9 November 2020 to 23 November 2020 at the Hughenden HS], (h) [24 November 2020 to 21 December 2020 at the Magnetic Island HS], (i) [21 January 2021 to 25 January 2021 at the Magnetic Island HS], (j) [4 February 2021 to 8 February 2021 at the Magnetic Island HS] and (k) [8 February 2021 to 19 February 2021 at the Hughenden HS].

[155] The Respondents' contentions, para. 23.

[156] Dr Chilcott's contentions, para. 12 and Exhibit 6, para. 21(l) and exhibit 'RH-3', pages 997-1010.

[157] Dr Chilcott's closing submissions, para. 81.

[158] See Exhibit 4, exhibit 'PCB 8', page 221 of the HB, paras. f) and i).

[159] Dr Chilcott's closing submissions, paras. 83-84.

[160] The Respondents' closing submissions, paras. 23-24 and 26-27.

[161] The Respondents' closing submissions, paras. 29-32.

[162] Exhibit 7, exhibit 'PL 11', page 591 of the HB.

[163] Purvis (n 28), [213] (Gummow, Hayne and Heydon JJ) .

[164] [2018] 1 Qd R 289; [2017] QCA 100 ('Woodforth').

[165] Holmes CJ at [1] and Bond J at [59] agreeing.

[166] Commonwealth v Humphries [1998] FCA 1031; (1998) 86 FCR 324, 333 (Kiefel J).

[170] Section 5(1) of the Disability Discrimination Act 1992 provided:

For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in the circumstances that are the same or not materially different, the discriminator treats or would treat a person without the disability.

[176] There was no equivalent provision to s 8 of the AD Act in the Disability Discrimination Act 1992 as considered in Purvis: Woodforth (n 164) [53].

[178] The Respondents' closing submissions, para. 35.

[179] If Dr Chilcott had made such an allegation, then, in applying s 10(1) of the Anti-Discrimination Act 1991, that characteristic could not form part of the identity of the hypothetical comparator: Woodforth (n 164) [57].

[180] The Respondents' closing submissions, paras. 35-36.

[181] Industrial Relations Act 2016 s 429.

[182] Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33, [47] (Kiefel CJ, Bell, Gageler and Keane JJ).

[183] Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326, [57] (Gageler and Gordon JJ).

[184] See Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ).

[187] See Virgin (n 26), [199]-[200].

[190] Ponraj v Wycombe Services Pty Ltd [2023] FCA 118, [107] (McElwain J).

[191] The Respondents' contentions, para. 6.

[192] Exhibit 6, para. 21 (j) and exhibit 'RH 3', pages 1002-1003 of the HB.

[193] Exhibit 6, para. 21 (j) and exhibit 'RH 3', page 1003 of the HB

[203] Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 13, 19 (Mahoney JA).