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

'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

The case of Maynard, A.L. v Neilson, M.D. was heard in the Federal Court of Australia, Tasmania District Registry, and involved a dispute between Anthony Laurence Maynard, the applicant, and Michael David Neilson, the respondent. The matter originated from a complaint of racial discrimination that Maynard had lodged with the Human Rights and Equal Opportunity Commission, which was subsequently reviewed in the Federal Court. The primary issue before the court was whether the respondent should be ordered to pay costs for the proceedings, given the outcome of the case.

The court considered the arguments presented by both parties regarding the costs and the appropriateness of the damages awarded. The respondent argued that the damages awarded were excessive, while the applicant's solicitors contended that the respondent had not adduced all the evidence at the initial hearing before the Commission. The court found that the new evidence presented in the Federal Court had significantly altered the case's complexion and that the respondent's previous harmonious contact with coloured persons was much more favourable than the lack of evidence on whether he held racist attitudes. Furthermore, the court acknowledged that while some loss sustained in cases of racial discrimination might be subjective and difficult to quantify, a serious case could warrant an award of $5,000 or more.

After reviewing the submissions and the conduct of the proceedings, Justice Wilcox concluded that it was proper to decline any order for costs. The judge highlighted that the hearing was conducted efficiently by both parties and facilitated by the capable representation provided by counsel. Justice Wilcox also noted that the decision on whether to grant assistance to the respondent under s.25ZC of the Racial Discrimination Act 1979 was not within his jurisdiction.

In summary, the court decided not to make any order for costs in this matter, primarily due to the significant changes in the case's complexion resulting from new evidence and the efficient conduct of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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

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.

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.

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

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

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

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

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

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

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

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

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

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

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