Gardiner v Toohey [2007] FCA 1292

FEDERAL COURT OF AUSTRALIA

Gardiner v Toohey [2007] FCA 1292 CHRISTOPHER GERARD GARDINER v KAREN TOOHEY AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION TAD 20 OF 2007

MARSHALL J

21 AUGUST 2007

HOBART IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 20 OF 2007

BETWEEN: CHRISTOPHER GERARD GARDINER

Applicant

AND: KAREN TOOHEY

First Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Second Respondent

JUDGE: MARSHALL J DATE OF ORDER: 21 AUGUST 2007

WHERE MADE: HOBART

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed. 2. The applicant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TAD 20 OF 2007

BETWEEN: CHRISTOPHER GERARD GARDINER

Applicant

AND: KAREN TOOHEY

First Respondent

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Second Respondent

JUDGE: MARSHALL J

DATE: 21 AUGUST 2007

PLACE: HOBART

REASONS FOR JUDGMENT 1 The applicant, Mr Gardiner, applies for leave to appeal from a judgment of Heerey J in which his Honour summarily dismissed an application made by Mr Gardiner under s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). 2 Justice Heerey dismissed the application at its first directions hearing on 18 July 2007. At p 4 of the transcript, his Honour is recorded as saying: Well, look, Mr Gardiner, I am sorry about this but I just don't think you have got a complaint under the Human Rights Act (sic). If you have been unfairly treated, there are other remedies open, such as the Commonwealth Ombudsman, but I just don't think you have – you are alleging a case that brings you within the [HREOC] Act. I really don't think it is in your interests or any body else's to pursue the matter in this Court any further. 3 Justice Heerey, without using these exact words, viewed Mr Gardiner's application as having no reasonable prospect of success. If his Honour correctly formed that view, it is a course which was open under s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth). Section 31A(2) of that Act provides: The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: … (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. 4 Prior to the 18 July 2007 directions hearing, on 12 July 2007, the solicitors for the respondents informed the Court (Mr Gardiner had been informed separately) that they would apply pursuant to s 31A of the Federal Court of Australia Act to dismiss the proceeding summarily. The letter raised three grounds for summary dismissal: 1) the wrong respondents were named; 2) the proceeding was out of time; and 3) the claims made were "outside the range of discrimination claims permitted by the relevant legislation". 5 The letter also noted that the Commonwealth would apply at the hearing to intervene in the proceeding so that the Court was not without a contradictor. 6 Justice Heerey did not deal with the first and second bases for the respondents' application under s 31A, but his Honour did deal with the third point. His Honour also did not consider the application for intervention. Perhaps this was because, as events transpired, it was unnecessary for him to do so. He also did not deal with an application by the Commonwealth to be made a party to the proceeding. On the application for leave to appeal, Mr Gardiner has purported to add, "Commonwealth Department of Defence" as a respondent to that application, without being granted leave to do so. 7 Mr Gardiner had complained to the Human Rights and Equal Opportunity Commission (Commission), alleging discrimination in employment on the grounds of his criminal record (under the HREOC Act) and imputed disability (under the Disability Discrimination Act 1992 (Cth)). 8 In October 2005, the Commonwealth Department of Defence (Department) offered Mr Gardiner a position as a Finance Officer, subject to "fit and proper" checks. In March 2006, the Department advised Mr Gardiner that it had decided not to employ him. In coming to that decision, the Department considered information provided by the Australian Federal Police as part of a police records check. 9 The Department withdrew its offer of employment because of Mr Gardiner's failure to disclose his full criminal record. He had disclosed two convictions but not a third one. 10 On 2 March 2007, an Investigation/Conciliation Officer with the Commission wrote to Mr Gardiner advising him, amongst other things, that: · the Department disputes that it discriminated against him on the basis of his criminal record or an imputed disability; · the Department maintains that it withdrew the employment offer because of Mr Gardiner's failure to disclose all of his criminal convictions; · the Department says it was not aware of any psychological disability that had been imputed to Mr Gardiner; · there appeared to be insufficient evidence to support the claim of "criminal record discrimination", and that the decision of the Department was not based on Mr Gardiner's criminal record but his failure to disclose it fully; · there would not appear to be any evidence to support the claim based on imputed disability. 11 On 27 March 2007, the first respondent, Ms Toohey (as delegate of the President of the Commission), advised Mr Gardiner that she had: …decided to decline to continue to inquire into your complaint of criminal record discrimination pursuant to section 32(3)(c)(ii) of the HREOC Act as I am of the opinion that your complaint is lacking in substance. I have also decided to terminate your complaint of disability discrimination on the ground that I am satisfied that it is lacking in substance, pursuant to section 46PH(1)(c) of the HREOC Act. 12 In the letter of 12 July 2007, the respondents' solicitors, under the heading, "Outside the range of discrimination claims permitted", said: Section 46PO(3) of the Act provides that the unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. The substance of your complaint to HREOC about the Department of Defence related to the withdrawal by the Department of an offer of employment, on a non-ongoing basis, as a Finance Officer. The offer was withdrawn because, it was alleged, you failed to disclose all your convictions within the previous 10 years. The substance of your complaint against our clients is hard to discern from your application but it appears to relate to the process of inquiring into your complaint and making the decision to terminate the complaint. You do not say in what way the matters complained of were discriminatory. What is clear, however, is that the complaint against our clients is not the same as, or the same in substance as, the complaint against Defence; nor does it, in any relevant sense, arise out of the act of Defence in withdrawing the offer of employment. 13 The above points contained in the 12 July 2007 letter were well made. No acts of discrimination have been alleged against the respondents. The alleged discriminatory acts were undertaken by the Commonwealth, through the Department, but the Commonwealth was not named as a respondent. Mr Gardiner wishes to add the Commonwealth as a respondent now for the purposes of leave to appeal. However, that does not assist the Court in determining whether leave to appeal should be granted in respect of Heerey J's order. 14 In my view, no purpose would be served by granting leave to appeal, as any appeal from the judgment of Heerey J is bound to fail. Apart from the problems generated by Mr Gardiner not naming the correct respondent, it is abundantly clear that his claims of discrimination, if properly made against the Commonwealth, could not be made out. 15 "Criminal record" is a ground of discrimination covered by the HREOC Act. Paragraph (b) of the definition of "discrimination" in s 3 of the HREOC Act refers to: … (b) any other distinction, exclusion or preference that: … (ii) has been declared by the regulations to constitute discrimination for the purposes of the Act; … HREOC has conceded that the Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) refer to "criminal record". However, in paragraph (c) of the definition of discrimination in section 3 of the Act, any distinction, exclusion or preference "based on the inherent requirements of the job" is excluded. 16 It is an inherent requirement of a job with the Department that an applicant for employment be a person who the Department considers can uphold the Australian Public Service values and Code of Conduct. A failure to reveal all of one's criminal convictions would not constitute compliance with those values and code. 17 Additionally, and more significantly, the Department did not refuse to employ Mr Gardiner because of his criminal record but because of his failure to disclose it in its entirety. 18 Further, Mr Gardiner's claim under the Disability Discrimination Act 1992 (Cth) lacks merit because there is nothing before the Court to show that the Department was aware of a disability being imputed to Mr Gardiner. 19 I do not consider that the judgment of Heerey J is attended with sufficient doubt to warrant it to be reconsidered. Further, I am satisfied that no substantial injustice would result, in any event, assuming the decision to be wrong (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397). 20 For the foregoing reasons, the application for leave to appeal is dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.