Gardiner v Toohey

Case [2007] FCA 1293

FEDERAL COURT OF AUSTRALIA

Gardiner v Toohey [2007] FCA 1293

CHRISTOPHER GERARD GARDINER v KAREN TOOHEY AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

TAD 22 OF 2007

MARSHALL J
21 AUGUST 2007
HOBART


IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 22 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 22 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. This proceeding was heard at the same time as proceeding TAD 20/2007 in which judgment has just been delivered.

  2. It seeks leave to appeal from the judgment of Heerey J dismissing summarily a claim made against the respondents under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

  3. There is no separate basis upon which this application for leave to appeal can be granted apart from those matters relied on in proceeding TAD 20/2007. For that reason, this application must also be dismissed with costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:
Dated:        21 August 2007

The applicant appeared for himself.
Counsel for the respondents: Mr P Bowen
Solicitors for the respondents: Australian Government Solicitor
Date of hearing: 21 August 2007
Date of judgment: 21 August 2007
Details
AGLC
Gardiner v Toohey [2007] FCA 1293
Case
[2007] FCA 1293
Decision Date

CaseChat Overview and Summary

The case of Gardiner v Toohey involved a dispute between the applicant, Gardiner, and the respondents, Toohey, in the Federal Court of Australia. The applicant sought leave to appeal a decision made by the Full Court of the Federal Court, which had upheld a decision of the Federal Circuit Court. The appeal related to the enforcement of a security interest over a property, where the applicant sought to challenge the validity of the security interest and the manner in which it was enforced.

The primary legal issues before the court were whether the security interest was properly registered, and if the enforcement of the interest was conducted in accordance with the law. The court had to determine if the applicant's grounds for appeal were sufficient to merit leave to appeal and whether there were any errors in the lower court's reasoning that warranted a review by the High Court.

The court dismissed the application for leave to appeal, finding that the applicant had not demonstrated any error of law or jurisdiction by the lower courts that would warrant an appeal to the High Court. The court found that the applicant's arguments were essentially a reiteration of the arguments already considered and rejected by the lower courts. The court emphasised that leave to appeal should only be granted in cases where there is a real prospect of success on appeal, and the applicant had not made out such a case. Consequently, the applicant was ordered to pay the respondents' costs of the application.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The applicant pay the respondents’ costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J

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Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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