Gardiner v Toohey [2007] FCA 1292

Gardiner v Toohey [2007] FCA 1292

Leave to appeal was refused because any appeal from Heerey J's summary dismissal was bound to fail. No acts of discrimination were alleged against the respondents, the alleged acts were those of the Commonwealth through the Department of Defence, and adding the Department at the leave stage would not affect whether Heerey J's order should be reviewed. In any event, the complaint of criminal record discrimination could not be made out because the Department withdrew the employment offer due to Mr Gardiner's failure to disclose his full criminal record, not because of the record itself, and honest disclosure was connected with inherent requirements of a Department job requiring compliance...

Jurisdiction
Australia
Judgment Date
21 August 2007
Procedural Posture
Application for Leave to Appeal / Leave to Appeal From Summary Dismissal Dismissed
Outcome
The application for leave to appeal is dismissed with costs.
Legal Topics
['summary Dismissal' 'human Rights and Equal Opportunity Commission Complaint' 'criminal Record Discrimination' 'disability Discrimination' 'inherent Requirements of Employment' 'leave to Appeal']
['administrative Law' 'discrimination Law' 'employment Law' 'civil Procedure'] ['summary Dismissal' 'human Rights and Equal Opportunity Commission Complaint' 'criminal Record Discrimination' 'disability Discrimination' 'inherent Requirements of Employment' 'leave to Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal / Leave to Appeal From Summary Dismissal Dismissed

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from Heerey J's summary dismissal of Mr Gardiner's application under s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)." 'Whether the application before Heerey J had no reasonable prospect of success under s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth).' 'Whether the claims against the respondents were the same as, or arose out of the same or substantially the same acts as, the complaint terminated by the Commission within s 46PO(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).' "Whether Mr Gardiner's allegations of criminal record discrimination and imputed disability discrimination could be made out."]

Ratio Decidendi

Leave to appeal was refused because any appeal from Heerey J's summary dismissal was bound to fail. No acts of discrimination were alleged against the respondents, the alleged acts were those of the Commonwealth through the Department of Defence, and adding the Department at the leave stage would not affect whether Heerey J's order should be reviewed. In any event, the complaint of criminal record discrimination could not be made out because the Department withdrew the employment offer due to Mr Gardiner's failure to disclose his full criminal record, not because of the record itself, and honest disclosure was connected with inherent requirements of a Department job requiring compliance...

Court Disposition

The application for leave to appeal is dismissed with costs.

Orders

  • ['The application for leave to appeal is dismissed.' "The applicant pay the respondents' costs of the application."]