Resolution
82 The provisions immediately prior to s 734 in the FWA, beginning with s 725, set out a similar scheme to s 734 in respect of claims relating to the dismissal of an employee. Both s 725 and s 734 appear in Div 3 of Pt 6.1 of the FWA, entitled "Preventing multiple actions". The "general rule" is set out at s 725:
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
83 By s 725, if one provision relating to dismissal within ss 726 to 732 applies, then a person cannot also bring a claim to which a second provision within ss 726 to 732 applies.
84 In the case of ss 725-732, and as is the case in s 734, the prohibitions do not apply in two circumstances; namely withdrawal of a claim or failure "for want of jurisdiction". That is because, evidently, if either of those circumstances applied, there would not be multiple actions on foot. The earlier provisions and s 734 are part of one legislative scheme under Div 3 of Pt 6.1, all with the same objective, and all expressed in similar terms.
85 Section 734(1) requires a focus on "the conduct" alleged in the general protections court application on the one hand, and the "the conduct" alleged in an application or complaint "under anti-discrimination law". The same focus, but in reverse, is required by s 734(2).
86 In other words, as the parties accepted, the legislative intention revealed by the two limbs of s 734 is that in circumstances not caught by the prohibition in s 725, a person will only be able to seek final resolution of either their claim under anti-discrimination law or their general protections claim.
87 The parties accept that Ms Deam's AHRC complaint is a complaint made under anti-discrimination law for the purposes of s 734(1), although the definition of "anti-discrimination law" in s 351(3) did not include the AHRC Act at the time it was made. Later amendments to s 734 have clarified expressly what was, in my view, in any event its plain implied inclusion of the AHRC Act. Section 351(3) is not an exhaustive definition. It does not use the defining language of "means". It simply deems some legislation to be anti-discrimination law. This includes the DDA. The term is used in s 351 to ensure that the exemptions and exceptions prescribed under federal and State laws in relation to discrimination are picked up and excluded from the operation of s 351(1): see Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; 272 FCR 547 at [113] (O'Callaghan and Thawley JJ); Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460 at [161] (Mortimer J); Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 at [761]-[764] (Katzmann J); Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; 398 ALR 39 at [286] (Perram J).
88 At first blush it might be thought s 734 evinces an intention that a person can elect which of the two jurisdictional bases they wish to pursue. All these provisions (including ss 726-732) contain an exception concerning the withdrawal of a claim: see relevantly s 734(1)(b)(i) and s 734(2)(b)(i). On closer inspection, however, in my opinion, this is not how the provisions are intended to operate.
89 Both s 725 and s 734 operate on the "making" of an application or complaint. That is, they fix the point in time when the prohibition is engaged as the time when a person makes the second (ie the multiple) application or complaint. It is by this point - the making of the second application - that the first complaint or application must have been withdrawn. The provisions use the past tense for "withdrawn".
90 As I observed during argument, somewhat arbitrarily and unfairly, these prohibitions assume some knowledge in the putative applicant of their existence. For example, a person in Ms Deam's position would need to be aware, before proceeding to have the AHRC finalise her complaint (it being impossible to withdraw it after it had been finalised/terminated) that the continued existence of that AHRC complaint would preclude her making a general protections court application. That may be well and good if a person is legally advised throughout the AHRC process. If they are not, then the prohibition may operate somewhat arbitrarily and unfairly, in the sense of not giving a person a choice to withdraw the claim that was first in time so as to continue with the one that is second in time. Nevertheless, the legislative intention is in my opinion that there be a prohibition on a second claim being commenced.
91 I have given some consideration to whether s 734 (and therefore also the earlier provisions relating to dismissal) could be construed as allowing a person to elect which claim should be continued. The text and context is however in my opinion intractable. The provisions operate on the facts as at the time of commencement of the claim that is second in time.
92 Ms Deam's general protections court application was filed on 10 August 2022. Her AHRC complaint was terminated on 15 September 2022. That means there was, in hindsight, a month or so where Ms Deam could have withdrawn her DDA complaint before a decision was made by the AHRC. She could have withdrawn her DDA complaint at the same time she made her general protections court application, and this would have disengaged s 734. In making that observation, I do not criticise Ms Deam at all - these provisions are complex, and as I have observed, it appears the AHRC itself was not aware of the way they might operate.
93 Section 734 having been engaged, the real issue in the present proceeding is the scope of the operation of the prohibition in s 734(1) (relevantly). In my opinion, the premise upon which the prohibitions are based is that each of the two claims deals in substance with the same conduct. Although s 734 does not include the adjective "same" or a description such as "substantially similar", in my opinion this the intention of the provision. The scheme of Div 3 of Pt 6.1 is to preclude multiple litigation concerning substantially the same conduct.
94 As I understand it, Starlight did not dispute this proposition. It does not say the prohibition is engaged if the conduct alleged in the first complaint is quite different from the conduct alleged the second complaint, even if the parties are the same.
95 In my view, the terms of s 734(1) as they applied to Ms Deam require a comparison between Ms Deam's AHRC complaint (as the first in time claim) and Ms Deam's general protections court application, as explained in the amended concise statement. In oral submissions in reply, counsel for Ms Deam appeared to submit that the Court could not or should not look at the amended concise statement. If that was the submission, I reject it. Although concise statements are not pleadings - see the Court's Central Practice Note at [6.8]-[6.10], and Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 287 FCR 388 at [140]-[154] - their purpose is to outline the case sought to be put by a party. In this case, no pleadings have been ordered or filed, and although on these IAs the parties were all content to refer to the proposed statement of claim, strictly the comparison required by s 734 must be with filed documents.
96 I therefore reject the submissions of counsel for the applicant that it is appropriate only to look at the proposed statement of claim. That document is not filed, and no leave has been granted to file it. While it was used by all parties during the hearing as a convenient single location to understand how Ms Deam now puts her claims, and while it might be that content-wise there is no substantial difference, s 734 operates as a prohibition leading to possible dismissal of a proceeding in this Court, and it is therefore appropriate that its terms be followed. The distinction may not matter as there was no suggestion the proposed statement of claim travelled beyond the amended concise statement in any event. There has been a general consistency in Ms Deam's allegations from the start of her complaints.
97 Thus, in order to undertake the comparison required by s 734, I consider the two documents to be examined are Ms Deam's AHRC complaint and her amended concise statement in relation to her general protections court application.
98 In making its submissions that the conduct was the same or substantially the same, Starlight relied on a table prepared and annexed to the affidavit of its solicitor, Ms Wescott. The table appeared in correspondence to Ms Deam's solicitors in which Starlight sought to persuade Ms Deam to withdraw the general protections court application.
99 I found the table a helpful document. However, independently of it, I am satisfied the conduct upon which Ms Deam relies in her general protections court application is the same or substantially the same conduct alleged in her AHRC complaint.
100 In her AHRC complaint, Ms Deam makes the three allegations of unlawful discrimination I have set out above: one indirect discrimination claim on her own behalf, one direct discrimination claim on her own behalf and one indirect discrimination claim on behalf of children in participating hospitals who access the Captain Starlight program.
101 The indirect discrimination claim on behalf of children at participating hospitals can be put to one side as this is not a complaint covered by the general protections application.
102 As for the remaining two discrimination claims:
(a) The direct discrimination claim concerns the alleged failure to make reasonable adjustments for Ms Deam after the August 2019 event. I consider the underlying material facts of this claim are substantially the same as those Ms Deam describes in her amended concise statement as the 9 August complaint, the 5 September complaint (or inquiry), and the 6 September adverse action. In both claims the factual allegations concern how Ms Deam was treated after the August 2019 event, in terms of what she contends was the inadequate assistance and support she received. That each claim is then refined to pick up the language of the DDA and the FWA respectively does not alter the reliance on the substantially similar sub-stratum of fact. Indeed the whole point of ss 725-734 is that the same conduct can be characterised differently so as to fit within different legislative provisions, although in reality advancing a claim about the same conduct.
(b) The indirect discrimination clam concerns the imposition of a condition on Ms Deam after the August 2019 event, as I have described at [54] above. I consider the underlying material facts of this claim are the same or substantially the same as what Ms Deam describes in her amended concise statement as the "Emergency Help Omissions" and the "Mental Health Omissions", and the 6 September adverse action. Both concern the failure to provide Ms Deam with what she considers to be the kind of safety assurances and psychological supports she required before she could continue effectively as a Captain Starlight. Again, in each claim the allegations are framed to fall within the different legislative schemes, but substantially the same conduct by Starlight is the subject of both claims.
103 Therefore, subject to my consideration in the next section, I find that the prohibition in s 734(1) is engaged in respect of Ms Deam's general protections court application.