FEDERAL COURT OF AUSTRALIA
Gordon v Commonwealth of Australia (No 2) [2008] FCA 793
MARK ALEXANDER GORDON v COMMONWEALTH OF AUSTRALIA
TAD 12 OF 2005
HEEREY J
30 MAY 2008
SYDNEY (HEARD IN HOBART)
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TAD 12 OF 2005
BETWEEN:
MARK ALEXANDER GORDON
ApplicantAND:
COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
HEEREY J
DATE:
30 MAY 2008
PLACE:
SYDNEY (HEARD IN HOBART)
REASONS FOR JUDGMENT
On 6 May 2008 I delivered judgment for $121,762 in favour of the applicant upholding his claim for unlawful disability discrimination: Gordon v Commonwealth of Australia [2008] FCA 603. Subsequently I received a letter from the solicitors for the applicant stating that at [108]-[113] I relied on par 10 of a report from accounting firm BDO, which was not received into evidence. That part of the BDO report dealt with salaries available to accountants in the private sector in Tasmania.
It is correct to say that I rejected that part of the report, not because it was irrelevant or inadmissible, but because it contained information which had been late-served on the applicant’s solicitors.
On receipt of the notification from the applicant’s solicitors I directed that the parties file written submissions.
The respondent’s solicitor accepted that the judgment at [110]-[112] refers to the material in par 10 of the report. However, it was noted that [108] and [109] do not rely on the evidence in par 10, and that [113] sets out conclusions based on evidence beyond that contained in par 10.
Assuming for the purpose of argument that the judgment can be varied, I do not think there is any call to do so. The finding at [113] that the applicant had not made out a case for any loss or damage by way of future loss of salary or commission is supported by evidence other than that in par 10 of the BDO report. It was accepted that the applicant had not suffered, as a consequence of the discrimination, any loss of earning capacity. There was other evidence, summarised at [107]-[109], quite independent of the BDO report, which supported the conclusion that it was unlikely that he would have pursued a long term career with the ATO. Moreover, there was other evidence in the BDO report in par 3.2 and 3.3 which summarised employment opportunities for Certified Practicing Accountants in Tasmania, indicating that there was strong demand. Also the applicant conceded that the range of income for people with qualifications in the private sector is greater than in the public sector, albeit that he qualified it by “after many years” without quantifying “many”. He said he had been offered a specific position with Deloittes starting at $35,000 but increasing to $50,000 “in a few years”.
Accordingly while I regret the oversight in relation to par 10 of the BDO report, perhaps in part due to the fact that final submissions were only in writing and not the subject of oral argument, there is no basis for concluding that the result would have been any different.
In submissions the applicant’s solicitors also complained of some other alleged calculation in relation to loss of superannuation. I do not think that is an appropriate matter for debate. If there is factual error, it is a matter for appeal.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate:
Dated: 30 May 2008
Counsel for the Applicant: B McTaggart Solicitor for the Applicant: Ogilvie Jennings Counsel for the Respondent: B Morgan Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 4, 5 and 6 February 2008 Date of Final Submissions 28 May 2008 Date of Judgment: 30 May 2008
- AGLC
- Gordon v Commonwealth of Australia (No 2) [2008] FCA 793
- Case
- [2008] FCA 793
- Decision Date
CaseChat Overview and Summary
The primary issue before the court was whether the earlier judgment, which had been delivered on 6 May 2008, needed to be altered due to the applicant's allegation that the court had erroneously relied on a part of a report from the accounting firm BDO. Specifically, the applicant contended that the judge had relied on information that was not properly admitted into evidence, as it had been submitted late. The court had to determine if this oversight affected the overall findings and whether the judgment should be modified accordingly. Additionally, the court considered whether there were any calculation errors regarding the loss of superannuation benefits.
Justice Heerey addressed the concerns raised by the applicant, explaining that the part of the BDO report in question was not pivotal to the final decision. The judge confirmed that the conclusion about the lack of loss or damage by way of future salary or commission was supported by other evidence. This included evidence that Gordon had not suffered a loss of earning capacity and that there was strong demand for Certified Practicing Accountants in Tasmania. Furthermore, there was independent evidence from the BDO report and Gordon's own testimony that suggested it was unlikely he would have pursued a long-term career with the Australian Taxation Office. The judge concluded that the oversight did not warrant a change in the judgment as the overall findings remained unaffected.
Given the above reasoning, Justice Heerey decided not to amend the original judgment. The court dismissed the applicant's request for a variation, stating that any factual errors would be better addressed through an appeal rather than through this proceeding. The court's final orders remained unchanged from the earlier judgment, with Gordon awarded $121,762 for unlawful disability discrimination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HEEREY J
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