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)

REASONS FOR JUDGMENT

1                     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. 

2                     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. 

3                     On receipt of the notification from the applicant’s solicitors I directed that the parties file written submissions. 

4                     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.

5                     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”. 

6                     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.

7                     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. 

Associate:

Dated:         30 May 2008