Maynard, A.L. v Neilson, M.D

[1988] FCA 336

'JUDGMENT NO. ss.../ 1 -. I '......"".C.. 6%-

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NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT	OF AUSTRALIA	) )
TASMANIA DISTRICT REGISTRY	)	NO. TG 11 Of 1987
)
GENERAL DIVISION	1

BElWEEN: ANTAONY LAURENCE MYNARD

Applicant

AND: MICHAEL DAVID NEILSON

Respondent

CORAM :	WILCOX J
PLACE :	SYDNEY
DATE :	8 JULY 1988

REASONS FOR JUDGUENT REGARDING COSTS

when I delivered jugement in this matter on 27 May

1988 I rererved the matter of costs. In my reasons delivered

notwithstanding my then comments.
on that day I did indicate a tentative view	that there ought
not to be any order for costs.	However, I left the matter

open for further consideration upon the basis of written
submissions if the respondent decided to seek an order,

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The respondent did decide to seek an order for costs

and I have had the benefit of comprehensive written

submirrionr upon the matter from the legal representatives	of
each of the parties.	However, my consideration of those
submissions, and my further reflection upon the case,	has
served only to confirm the view which	I previously expressed.

On 2 1 Hay I indicated that the fresh evidence led

before thir Court, but not adduced at the inquiry by the Human
Rights and Equal Opportunity Commission, had been critical in

my reaching a conclusion different from that of the President

of the Colrimion, Einfeld J.	I commented that I thought it
extremely likely that,	if the same evidence had then been
adduced, the Commission would have dismissed the	complaint.

Counsel for the respondent submits that it is unsafe to

speculate upon the view which	Einfeld J would have reached
upon different evidence.	But the point which I intended to
make was that the new evidence had changed the complexion	of
the case in several material	respects. There was evidence led
in this Court, for the first time, as to the	respondent's
previous harmonious contact with coloured	persons. This is

evidence much more favourable to the respondent than a mere

lack of evidence, one way or the other, as to whether he was

at the material time a person who harboured racist attitudes.

As to the other two matters referred to -- the presence of

aboriginals in the hotel on	other occasions and the rigour of
the dress standards	-- there was some evidence before
Einfeld J.	But in both quantity and quality that evidence
fell well rhort of the evidence adduced	before me. I am not

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surprised that Einfeld J failed to regard the evidence he

heard a6 being sufficient	to exclude the likelihood of racial
discrimination on the evening in question; whereas	I think

that he MY have taken a different attitude to the

corresponding evidence before me.

The solicitors for the respondent submit that, in any event, the damages awarded by Einfeld J ( 5 5 , 0 0 0 ) were

manifertly excessive, so that their client was justified in recontesting the matter in this Court. Having regard to my conclusion upon liability, it was not previously necessary for

me to consider the question of damages and, unless it were essential to do so, it would be undesirable to express an

opinion upon that matter simply to resolve an argument

regarding costs. It is not necessary to do so. From the
point of view of the respondent, and if I am correct in the

comments just made, no question of damages would have arisen

if the respondent had choeen to adduce	all his evidence at the
hearing before the Commission.	From the applicant's point of
view, i f he was to obtain	enforcement of the decision of the
Commission, he had to take action in thir Court.	So costs
would have had to be incurred, whatever the appropriate amount
of damager.	However, whilst not commenting either way, I wish

to guard myself against being taken to accept the submission
that the award of damages was manifestly excessive. Although

there will be cares of racial discrimination in which part of

the lass rustained is economic loss capable	of arithmetical
calculation, there will usually	be a subjective element in the

damage sustained which is incapable of arithmetical

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calculation:  see s.252(4) of the Racial Discrimination Act

1979. In such a case the Court will be able to do no more

than to select a figure which,	in its opinion, fairly
represents the compensation	properly payable under all of the
circumstances.	In a serious case this figure will reach

$5,000, or indeed, go even higher.

A number of other matters, relating to the conduct of

the proceedings, were put in the submissions. I have

considered then all but I need not refer to them. I think

that it is enough to say that, primarily for the reasons

previously foreshadowed and amplified above, I am satisfied that the proper course, in the exercise of my discretion, is to decline to make any order for costs.

The solicitors for the respondent have indicated that

their client proposes to make an application under	s.25zC of
the Racial Discrimination Act	for payment of his costs by the
Attorney-General.	They seek from me a report that, from my

point of view, the respondent is deserving of such assistance.

I do not think that it is any part of my function to

make any comment, one	way or the other, upon the question
whether assistance should	be given to the respondent under

s.25ZC. My findings are set out in my earlier reasons. It

must be for others to determine whether the case is one	i
which a grant of assistance under s.25ZC is justified.	The

only comment I am prepared to make is that the hearing before

me was efficiently conducted upon both sides and my

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determination of the matter was greatly facilitated by the
assistance I obtained from counsel for both parties. It was a
definite advantage to the Court to have the parties so capably

represented.

I make no further order in respect of the matter.

I certify this and the four (4)

preceding pages to be a true copy	of
the Reasons for Judgment of
his Honour Justice	Wilcox.

Associate: /-p Date: 8 July 1988

Counsel for the Applicant: Mr P W Slicer

Solicitors for the Applicant:	Aboriginal Legal Service
Counsel for the Respondent:	Mr M Hodgman QC with nr R Hudson
Solicitor6 for the Respondent:	Butler McIntyre h Butler
Date(s) of hearing:	11, 12 and 13 May 1988