Bharatiya v Antonio (No 2)

[2022] FCA 636

FEDERAL COURT OF AUSTRALIA

Bharatiya v Antonio (No 2) [2022] FCA 636

File number

WAD 175 of 2021

Judgment of:

COLVIN J

Date of judgment:

31 May 2022

Legislation:

Racial Discrimination Act 1975 (Cth) s 18C

Cases cited:

Bharatiya v Antonio [2022] FCA 428

Niardone v Clubb (No 3) [2021] FCA 1449

Division:

General Division

Registry:

Western Australia

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

12

Date of hearing:

Determined on the papers

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the Respondent:

The Respondent appeared in person

ORDERS

WAD 175 of 2021

BETWEEN:

BEJOY KRISHNA BHARATIYA

Applicant

AND:

ROBERT ANTONIO

Respondent

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	31 MAY 2022

THE COURT ORDERS THAT:

1.In addition to the amounts the subject of the orders dated 26 April 2022, the respondent do pay to the applicant the amount of $137.72 by way of reimbursement of process server fees incurred by the applicant.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1. On 26 April 2022, I upheld a claim by Mr Bejoy Bharatiya that Mr Robert Antonio had engaged in acts that were unlawful under s 18C of the Racial Discrimination Act 1975 (Cth): Bharatiya v Antonio [2022] FCA 428. In addition to making a declaration to that effect, I ordered payment of compensation of $750, ordered the reimbursement of process server fees of $132 incurred by Mr Bharatiya and made directions concerning any application for costs. I indicated that I would deal with any such application on the papers.

2. In the course of the proceedings, each of Mr Bharatiya and Mr Antonio acted on their own behalf.  Mr Bharatiya has filed an outline of submissions to which he has appended copies of tax invoices, invoice itemisations and a debtor statement from a firm of solicitors.  He also says that he incurred a second set of process server fees of $137.20.  He seeks an order providing 'full reimbursement'.  He also asks the Court to be involved in collecting a cheque from Mr Antonio.

3. Mr Antonio has provided an email in which he says he is not claiming any 'damages' which I take to be a reference to costs.  Otherwise, he provides a brief explanation of his circumstances and makes certain assertions about the circumstances of Mr Bharatiya.

4. In Niardone v Clubb (No 3) [2021] FCA 1449 at [29]‑[32] I summarised the relevant principles as to costs where a party had achieved partial success. As there noted, where a party seeks a substantial award of damages and succeeds only in obtaining an award of nominal damages then that award will not ordinarily entitle an applicant to the costs of the proceedings. Further, although a successful party will ordinarily obtain an award of costs, a measure of vindication may not be sufficient to support an exercise of the costs discretion in favour of a party.

5. The matters…