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

Re: ANTHONY LAURENCE MAYNARD
And: MICHAEL DAVID NEILSON
No. TG11 of 1987
Racial Discrimination

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Racial Discrimination - Refusal of service in hotel - Whether refusal actuated by race or colour of persons requesting service - Complaint procedure - Duplication of hearings by Human Rights and Equal Opportunity Commission and Federal Court.

Racial Discrimination Act 1975 ss.13, 18, 24, 25A, 25Z, 25ZA

Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 ss.4, 5

HEARING

SYDNEY

#DATE 27:5:1988

Counsel for the Applicant: Mr P W Slicer

Solicitors for the Applicant: Aboriginal Legal Service

Counsel for the Respondent: Mr M Hodgman QC with Mr R Hudson

Solicitors for the Respondent: Butler McIntyre & Butler

ORDER

The Application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On the evening of Saturday 2 June 1984 four Aboriginal men were refused service at Maloney's Hotel, Hobart. That fact is undisputed. But the parties are in dispute as to whether that refusal was an act of racial discrimination or was occasioned by the failure of one or more of the men to satisfy the exacting dress standards then imposed at the hotel.

Section 13 of the Racial Discrimination Act 1975 makes it unlawful, amongst other things, for a person who supplies goods or services to the public or to any section of the public to refuse or fail on demand to supply those goods or services to another person by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person. Section 18 of the Act makes it clear that a refusal or failure to supply may offend s.13 notwithstanding that the refusal or failure was occasioned by more than one reason, provided that the race, colour or national or ethnic origin of a person is the dominant reason for the refusal or failure.
At the time of the incident complained of the Human Rights Commission Act 1981 was in force. On 8 June 1984 one of the four men, Anthony Laurence Maynard the present applicant, wrote a letter to the Human Rights Commission, a body established by that Act, complaining of the refusal at Maloney's upon the previous Saturday. The Commission apparently accepted this letter as a formal complaint under s.21 of the then Act. It contacted the proprietors of the hotel, Allan Cerny and Michael David Neilson, seeking a response. Mr Cerny was then the licensee of Maloney's but he had not himself been involved in the incident on 2 June. After consulting Mr Neilson, who had been directly involved, Mr Cerny replied on 30 July 1984, denying racial discrimination. The letter included the passage:

"We do discriminate on dress so as to maintain our hotel standards. Football jumpers are a no-no on Saturday evenings in our lounge bar and that is what Mr Maynard was wearing."

Mr Cerny's response was passed on to Mr Maynard, who maintained his complaint, but the matter did not progress with speed. So far as the evidence indicates, nothing further happened until February 1986, when the Commission appointed a compulsory conference to be held in Hobart on 12 March 1986. By that time Mr Neilson had sold out his interest in the hotel and was living and working near Sydney. He had solicitors write to the Commission pointing out the inconvenience of attending the conference, and putting other matters, and requested that his attendance at the conference be waived. There is no evidence as to the Commission's response but it appears that the conference went ahead, with or without Mr Neilson. However, it did not resolve the matter.
The Human Rights Commission Act 1981 was repealed by s.4 of the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986, which came into force on 9 December 1986. By an associated Act, the Human Rights and Equal Opportunity Commission Act 1986, a new Commission was established under that name. The Racial Discrimination Act was amended, by the Transitional Provisions Act, so as to vest in the new Commission the functions previously conferred on the former Commission. Section 5 of the Transitional Provisions Act provided that where, before the commencement of the new Act, the former Commission had commenced to perform, in relation to a particular matter, a function conferred on it by the repealed Act but had not completed the performance of that function, the new Commission might continue and complete that performance. It followed that Mr Maynard's complaint became a matter before the new Commission.
The Transitional Provisions Act substituted a new regime for the consideration of complaints of contraventions of the Racial Discrimination Act. There was to be a Race Discrimination Commissioner, empowered to undertake inquiries into, and to endeavour to settle by conciliation, complaints of racial discrimination. Provision was made for compulsory conferences but the requirement of the earlier legislation for a compulsory conference prior to further action was not repeated. Section 24 empowered the Race Discrimination Commissioner, under certain circumstances, to refer complaints to the full Commission; whereupon s.25A obliged the Commission to hold an inquiry into the complaint, unless the complainant otherwise requested. That inquiry might be conducted by a legally qualified single member of the Commission, if the President so directed. In the present case the President, Einfeld J, did so direct and, appropriately in the first inquiry of its kind, the President himself conducted the inquiry. Evidence was taken in Hobart on 1 and 2 June 1987. At that inquiry Mr Maynard sought a finding that the complaint was substantiated, a declaration that the respondents had engaged in conduct rendered unlawful under the Racial Discrimination Act and a declaration that the respondents should pay damages by way of compensation to him for loss or damage suffered by reason of their conduct: see Racial Discrimination Act s.25Z. The respondents to the inquiry were both Mr Neilson and Mr Cerny.
The learned President found the complaint proved, as against Mr Neilson but not as against Mr Cerny. He held that Mr Neilson had contravened s.13 of the Racial Discrimination Act and he determined the appropriate compensation to be paid by Mr Neilson to Mr Maynard to be $5,000.
Section 25Z(2) of the Racial Discrimination Act provides that a determination of the Commission, after inquiry, "is not binding or conclusive between any of the parties to the determination". In the event that a party against whom a determination was made fails to implement that determination, the only available remedy is the institution in this Court -- by either the Commission or the complainant -- of a proceeding for an order to enforce the determination: see s.25ZA(1).
Section 25ZA(2) provides:

"(2) Where the Federal Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under this Act, the Federal Court may make such orders (including a declaration of right) as the Federal Court thinks fit."

Sub-section (3) empowers the Court to "give effect to a determination of the Commission". It is obvious that the powers of the Court include the making of orders corresponding to the various declarations available to the Commission, as listed in s.25Z(1)(b), and that, in a proper case, the Court may order the payment of damages by a respondent to a complainant, such damages extending to injury to the complainant's feelings or humiliation suffered by him or her: see s.25Z(4).
The course adopted by the Act, of making the Commission's determination not binding upon the parties, was no doubt ordained by the constitutional need to avoid conferring upon a non-judicial body a part of the judicial power of the Commonwealth. But, as this case demonstrates, the resulting situation is far from satisfactory. If a respondent elects not to implement an adverse determination made by the Commission two effects are probable. Firstly, the complainant is likely to regard the respondent's failure to accept, and to implement, the Commission's determination as a fresh affront, leading perhaps to a feeling of greater grievance than before. Secondly, if the matter is allowed to rest there, the complainant may harbour an understandable feeling of injustice. That feeling is not likely to be mitigated by the complainant's knowledge that the respondent is not legally obliged to give effect to the Commission's determination. If, on the other hand, either the Commission or the complainant takes enforcement action, the whole matter must be relitigated. Moreover, there is no statutory provision for the hearing in this Court to proceed upon the basis of the transcript at the inquiry, either with or without additional evidence. Unless the parties otherwise agree, the witnesses must be recalled and must give their evidence afresh. The cost of duplicating the hearing is likely to be considerable, both to the parties and to the taxpayer. That is certainly the position in the present case.
Further, there is a danger, in a procedure for a non-binding determination, that a party will fail to put forward all of the evidence which is relevant to his or her case. I do not suggest that, in the present case, there was a conscious decision on either side to withhold relevant material from the learned President. But the fact is that, in this Court, the witnesses were examined and cross-examined, especially by counsel for the respondent, upon matters not previously investigated and that additional witnesses were called who gave important new evidence. Indeed, it is predominantly by reason of the new evidence adduced by the respondent that I have reached a conclusion of fact which differs from that of the learned President. This circumstance has some significance in relation to legal costs, a matter to which I will return, but it is relevant in the present context to observe that the standing of the Commission is not enhanced by a procedure which enables parties to disregard its determinations and to resist enforcement of those determinations by the presentation of evidence withheld from the Commission. If it is constitutionally impossible to make the findings of the Commission, after inquiry, binding upon the parties, it may be better to dispense with the inquiry procedure altogether and to provide an immediate right of action in this Court upon the failure of the Race Discrimination Commissioner to resolve the complaint by conciliation.
Although there was much dispute about peripheral matters, the critical facts of the case are not in contest. There being no express or overt discrimination, the real question is what inference should be drawn from those facts; the applicant contending that they admit of no rational explanation other than that the refusal of service was on racial grounds, the respondent arguing that the refusal was consistent with a rigorous, even if insensitive and over-zealous, enforcement of the dress standards adopted by the hotel management.
It appears that Maloney's Hotel, which is situated on the corner of Macquarie and Argyle Streets, Hobart, was once known as the Hobart Hotel. At the time when Mr Cerny and Mr Neilson took over the hotel, in December 1982, the hotel had a poor reputation. Mr Neilson gave evidence that, at that time, the Licensing Board and the police warned him and his partner that the hotel was in danger of losing its licence and that they should rethink its manner of operation. They decided to change the name of the hotel and to renovate and refurnish the building. For these purposes, they spent about $300,000. The renovations included the conversion of one of the two public bars into a lounge bar and the provision of accommodation, on the first floor of the building, for a night club. There was a conscious policy to move the hotel away from its traditional clientele, mainly dock workers and seamen, to young business and professional people. As part of that policy, the new proprietors decided to insist upon rigorous dress standards in all parts of the hotel except the remaining public bar; although there was evidence that the standards in the dining room were not as rigorous as those in the lounge bar and night club.
On the evening of 2 June 1984 a function was planned to farewell Brian Mansell, who was retiring as Secretary of the Tasmanian Aboriginal Centre. Many staff members and friends indicated their desire to attend and a booking was made by one of the staff of the Centre, probably June Brown, for a party of 20 people -- subsequently increased to 22 -- to have dinner in the dining room of Maloney's. The booking was made in the name of "Brown", apparently without any reference to the fact that the group was associated with the Aboriginal Centre.
The exact number of persons who sat down to dinner is not established by the evidence. An attempt has been made to recall names, from which it appears that the number may have been as low as 16. The party did not all arrive together. Mr Brian Mansell said in evidence that he arrived with his wife about 7 pm, when about six people were present. Apparently they went straight to the dining room, where they were served at the table with pre-dinner drinks. (Although Mr Neilson said that he served some of the party with pre-dinner drinks in the lounge bar, it appears from Mr Brian Mansell's evidence that, if this was the case, it applied to very few of the party.) Eventually meals were ordered. About 8 pm Michael Mansell, the brother of Mr Brian Mansell and who was then a legal apprentice employed by the Aboriginal Legal Service, joined the group in the dining room. Shortly afterwards the applicant, Mr Tony Maynard, entered the hotel by the Macquarie Street entrance in company with his brother Kerry, his cousin Leslie Maynard, and Gregory Brown. Mr Tony Maynard was wearing a flannelette shirt over a T-shirt and long dark trousers. The nature of his footwear is not clear from the evidence. At one stage it was suggested that he may have been wearing sandshoes but the only evidence before me is Mr Leslie Maynard's recollection that Mr Tony Maynard was wearing dress shoes. Mr Kerry Maynard was wearing a black sports top, bearing the emblem of the Collingwood football club, long black trousers and Adidas runners. Mr Leslie Maynard was dressed in a jacket with long trousers and dark shoes. Mr Brown wore a green and red football jumper, apparently with long trousers and dark shoes.
Although the four men came to the hotel to join the farewell celebration, they had already eaten a meal. Accordingly, they went briefly to the dining room to tell the other members of the party that they had arrived and that they would wait for them in the bar. The four men entered the lounge bar, which opens off the corridor leading from Macquarie Street in a position almost opposite the door of the dining room. The lounge bar was the only bar open that night. None of the men knew that this bar was in fact a lounge bar, as distinct from a public bar. Mr Leslie Maynard approached the bar and ordered four beers; he said from a woman who was behind the bar and whom he took to be a barmaid. According to Mr Leslie Maynard she refused, saying "We cannot serve you. You are not dressed properly". He returned to his three companions and told them what had happened. Mr Tony Maynard said that he then approached the woman and asked her why they had been refused and that she replied that she could not serve them. She gave no reason. Mr Tony Maynard said that he asked who was in charge and a man -- now accepted to have been Mr Neilson -- appeared and said that the men were not properly dressed. The four men then returned to the dining room and spoke to the others. Both Mr Michael Mansell and Mr Brian Mansell came back to the bar where, according to the three Maynards and Mr Michael Mansell himself, he ordered six beers; but was refused. All the men then left the bar and returned to the dining room, where the entrees were about to be served. After consultation the whole party left the hotel and went elsewhere.
The evidence on behalf of the respondent was that no barmaid was on duty in the lounge bar at that time, that the bar was staffed only by Mr Neilson. Mr Neilson said that the order was given directly to, and refused by, himself. But there is evidence that three waitresses were then on duty in the dining room and that their responsibilities included the preparation of drinks in the lounge bar for the diners at their tables. It is possible that one of these waitresses was approached by the men in the lounge bar in the mistaken belief that she was serving there.
There is also an issue whether Mr Michael Mansell gave an order for six beers. He said that he did this in order to check that service was in fact being refused. Mr Neilson denied any such order.
I do not think that it is necessary to determine precisely what orders were given, or to whom. It is common ground that Mr Neilson was personally involved in the incident and that, whether or not he was the recipient of the initial order, he himself refused service. Any refusal to Mr Michael Mansell was clearly a repetition of the earlier refusal to serve the four men.
I have no doubt that, at the time, all four men believed the refusal to serve them was made on racial grounds. They were not aware of the dress regulations imposed by the hotel. None of them had visited the hotel since its renovation. Even if they had been aware that dress rules applied in the lounge bar -- it is conceded by the respondent that there were no dress rules in the public bar -- none of the men knew that he was in the lounge bar. The bar which they entered was the only bar open at the time, it had to their knowledge previously been a public bar and it bore no inscription or sign to indicate that it was now a lounge bar. Under such circumstances they might well have been incredulous when told that they were refused on sartorial grounds; the more so as they had dressed especially for the occasion.
I am also satisfied that, when the four men reported the refusal of service, the party in the dining room immediately assumed that the refusal was made because they were Aboriginal. Not only was there direct evidence from both Mr Michael Mansell and Mr Brian Mansell of their individual assumptions to that effect; only an assumption of that magnitude would be likely to cause a group of people to leave their entrees on the table and to walk out into the street at 8.30 on a wintery Saturday night in search of another venue for an important occasion. Although they went without any disturbance, the exodus was such as to attract the notice of Mr Cerny, who happened to enter the hotel at that time and who immediately went to Mr Neilson to ask what had occurred.
Counsel for the respondent contended that the applicant and his companions must have realized that the refusal was genuinely made on the grounds of dress, relying on two matters. In the first place they pointed out that no complaint was made on the evening that the refusal was on racial grounds. Upon the evidence, this is so; but I do not attach as much importance to that fact as did counsel. As Mr Leslie Maynard said in evidence, when taxed with his failure to protest the refusal: "I thought they were the bosses. I did not see any point in it". Mr Mansell explained that, in his experience, a person practising racial discrimination would never admit doing so, so he thought that there was no point in making the accusation and that he was anxious to avoid any disturbance. Whether Mr Mansell would take that same view today I do not know, but I see no reason to doubt his evidence of his then state of mind. It must be remembered that Mr Mansell had then but recently joined the Aboriginal Legal Service and that he was not then a solicitor or as involved in Aboriginal activism as he is today.

The second matter put by counsel relates to the presence of the party in the dining room. It is said that it is inconceivable, firstly, that the persons conducting the hotel would not have realized that at least some of the diners were Aboriginal and, secondly, that the four men would not have appreciated that fact. I am not satisfied of either proposition. I have the benefit of some photographs taken later that same evening and several of the diners were identified in Court. Some of the dining party were not in fact Aboriginal; others, being of mixed blood, were not obviously so. One obvious Aboriginal, Luke Maynard, entered the dining room very late; perhaps just at the time when the incident occurred. Of the others there were only three people who would be likely to be recognized as Aboriginal. All three, being of mixed blood, are fairly light skinned. Mr Mansell said that, in his experience, discrimination is more generally practised against darker skinned Aboriginals. The four men refused service in the bar more obviously fit what counsel called the "stereotype Aboriginal appearance" than any of the persons who were in the dining room, with the exception of Mr Luke Maynard. Whether or not particular members of the dining room staff appreciated that the party included Aboriginals, the fact that these people were in the dining room negatives neither the possibility of racial discrimination in the lounge bar nor a belief by those affected that racial discrimination had occurred.
Notwithstanding these matters, I am not satisfied that Mr Neilson's refusal to serve the four men was occasioned by their race or colour. There are a number of reasons for this, most of which emerge out of evidence not presented to Einfeld J at the inquiry by the Commission. The first matter involves Mr Neilson himself. In opening the respondent's case senior counsel described his client as "a sincere, a committed and a caring person". I will return to that description; but the evidence does establish that, over a number of years and in a variety of situations, Mr Neilson has had harmonious contact with Aboriginals and other dark skinned people. Although this evidence is not conclusive, it does suggest that Mr Neilson would have been unlikely to harbour the type of prejudice necessary to cause him to refuse service on racial grounds. On the other hand, other aspects of his personality do provide an explanation of his behaviour on that night which, whilst doing him no credit, does not involve racial Discrimination.
The second piece of important new evidence, which was not challenged, was evidence, including evidence from independent witnesses, that people of obviously Aboriginal appearance have been served in the hotel -- including in the lounge bar -- on other occasions both before and after 2 June 1984. That evidence does not negative the possibility that an individual member of the staff refused service on racial grounds and that Mr Neilson felt bound to back up that refusal, but it does seem to me to reduce the likelihood of that explanation.
The third matter which influences me is the evidence now available as to the rigourness of the enforcement, at that time, of the hotel's dress standards. There is abundant evidence on that matter, to the point where counsel for the applicant expressly conceded that strict dress requirements were enforced in Maloney's Hotel, except in the public bar, both before and after 2 June 1984 and irrespective of race. Counsel further conceded that such enforcement was effected on numerous occasions. Indeed he did not challenge Mr Neilson's estimate that, at about that time, upon dress grounds he was excluding from the hotel, or refusing to serve, about 10-12 people each week.
At all material times Mr Neilson has maintained that the dress of one or more of the four men was inappropriate for the lounge bar. It is common ground that, on the night, he made a reference to dress. It is not clear whether his reference was to the dress of all of the men or of only one of them. Mr Neilson said in evidence that he told the men, when refusing the order for drinks, either "Sorry fellows, you are not dressed properly" or "Sorry fellows, your mate is not dressed properly"; meaning Mr Brown who was wearing the football jumper.
Mr Neilson has at all times asserted that there was a problem, on the night, about a football jumper; although in Mr Cerny's letter to the Human Rights Commission of 30 July 1984 the wearer was wrongly said to be Mr Tony Maynard rather than Mr Brown. A similar claim was made at the inquiry by the Commission and in the Defence filed in this proceeding. Having regard to the evidence about the strictness of the dress standards applied at the time in Maloney's, I have no doubt that a football jumper would have been regarded as being unacceptable in the lounge bar on a Saturday evening, regardless of the race or identity of the wearer.
Reference was made in evidence to two other items of dress. In his evidence before the learned President Mr Tony Maynard said that he may have been wearing sandshoes. Although Mr Neilson had no recollection of Mr Tony Maynard's shoes, or of having taken exception on the night to his footwear, he said in evidence at the inquiry that sandshoes would have been unacceptable to him and would have furnished a reason for regarding Mr Tony Maynard as being inappropriately dressed. He conceded that this was the first occasion upon which he had referred to sandshoes as providing a reason for his refusal of service.
The photographs taken later on the evening of 2 June 1984 were not tendered in evidence to the Commission. So far as appears, Mr Neilson was not then aware that the applicant was wearing a flannelette shirt at the time of the incident. Now realizing this, he said in evidence before me that flannelette shirts are unacceptable, but he conceded that he made no reference to Mr Tony Maynard's clothing at the relevant time.
It appears that Mr Neilson has always taken the view that, if the dress of one member of a group is unacceptable, he is justified in excluding, or in refusing service to, all members of the group. It is not difficult to see his reasoning; if others were served they might simply pass drinks to the sartorial offender. Although there was some reference to this attitude at the hearing before the Commission, the rationale of the policy was not spelled out. Neither was there much evidence of its application. Lacking that evidence, and the other material to which I have referred, and being understandably sceptical about Mr Neilson's belated reliance upon Mr Tony Maynard's sandshoes, the learned President was unable to account for the refusal of service to the three Maynards except upon the basis that they were obvious Aboriginals; the stigma of inappropriate dress being confined to Mr Brown. The attraction of that conclusion is clear but, of course, the reasoning loses much of its force once it is established that it was the general practice of Mr Neilson to refuse service to all the members of a party which contained a person whose dress was found unacceptable.
In the absence of proper explanation, the practice adopted by Mr Neilson was one calculated to give offence to people who were refused drinks notwithstanding that they themselves complied with the dress standards. The evidence suggests that, not infrequently, it did cause offence. Although, according to Mr Neilson, there was a notice near the Macquarie Street entrance of the hotel to the effect that the management reserved the right to refuse admission to people considered improperly dressed and the further words "strictly neat casual", there was no definition of this term. Moreover, although this entrance provided access to all sections of the hotel, it was conceded in evidence that the notice was in fact inapplicable to the public bar and that it was less applicable to the dining room than to the lounge bar and the night club. The confusion which this might cause could only have been exacerbated by the failure of the hotel proprietors to identify the lounge bar as such. Under these circumstances it is understandable that customers often protested the refusal of service to them on sartorial grounds. It may be accepted that, within reason, it is the prerogative of any publican to determine what standards of dress are to be regarded as acceptable in his or her hotel. But, except perhaps in the most obvious cases, it is incumbent upon the publican -- if misunderstanding is to be avoided -- to specify to the customer the deficiency complained of. By so doing, the publican gives to the customer an opportunity to remedy the defect and, if the offender is one of a group, the publican enables the members of the group to decide what course they will take. The whole group may choose to go elsewhere, but another option is for the offender to withdraw.
Unfortunately, the refusal of service in hotels upon racial grounds has been a common phenomenon in Australia. The evidence indicates that, prior to 2 June 1984, there had been some such incidents, of which Mr Neilson was aware, involving Aboriginals in Hobart. Under those circumstances it might have been expected that Mr Neilson would have been alive to the possibility that a refusal of service to Aborigines, although on sartorial grounds, would be misunderstood. There was a particular need for sensitivity to the possible reaction of the persons being refused, and a special obligation clearly to communicate the nature of the problem. But Mr Neilson made no attempt to explain the situation. He did not specify which of the four men offended his dress standards or explain why that meant that non-offending members of the party should also be refused service. I am not satisfied that Mr Neilson made an adverse judgment about the dress of the men other than Mr Brown. Although, according to Mr Neilson, he believed that the four men were friends of the dining party, he made no suggestion that they should join that party and have their drinks in the dining room, where the dress standards were more relaxed. The evidence does not establish what seats were available in the dining room, but it appears that Miss Brown may have overbooked. Two tables, containing a total of 22 seats, were allocated to her party but the number of seats actually occupied may have been as low as 16. At least four seats may have been available at these tables. But Mr Neilson did not even turn his mind to the matter.
In this connection it is relevant to note a comment by counsel for the applicant that his client's complaint is not that he was refused service in the lounge bar but that he was refused service in the hotel. He submitted that the imposition of dress standards in the lounge bar could not justify a refusal of service in the hotel as a whole, especially having regard to the evidence that the dress standards were less rigorous in the dining room. That may be accepted as a matter of logic; but the critical question is whether Mr Neilson refused to serve Mr Maynard because of his race or colour or the race or colour of one or more of his companions. If it be the fact that he was refused service in the lounge bar for some other reason, that provides an answer to the complaint notwithstanding that, acting more sensitively and imaginatively, Mr Neilson may have been able to obviate the problem by directing the men to another part of the hotel. Counsel's submission would have force only if there was reason to conclude that, but for factors of race or colour, Mr Neilson would have offered the four men an alternative to the lounge bar. But the evidence is that he treated all customers in a like position in an equally high-handed manner.
Mr Neilson's conduct, subsequent to the refusal, was even more insensitive than before. He was aware that the four men were upset by his refusal. He knew that Mr Michael Mansell had come to find out what had happened. He gave him no explanation. Shortly afterwards, Mr Neilson was informed by one of the waitresses that the dining party was about to leave the hotel. In cross-examination Mr Neilson was asked what he believed to be the reason for their departure. He replied: "I believe they thought an injustice had been done". But he said that he took no steps to explain to the leaders of the group "that no injustice was intended and there were other ways of solving the problem".
If Mr Neilson failed, on the night, to appreciate that the perceived injustice was connected to a belief that he had discriminated on racial grounds, he did become aware of that fact shortly afterwards, when Mr Maynard's complaint was passed on to the hotel by the Human Rights Commission. He knew that one of the dining party was Mr Michael Mansell and how he might be contacted. A truly "caring" person, aghast at realising the extent of the misunderstanding that had occurred, would have telephoned Mr Mansell and asked him to arrange a meeting at which he could explain the position to Mr Tony Maynard and his friends and apologize for the misunderstanding. But Mr Neilson did none of this. Instead, he allowed Mr Cerny to send off a defensive letter to the Human Rights Commission and subsequently he sought to avoid attendance at a compulsory conference at which the matter might have been explained and, perhaps, resolved. Having seen each of the four men who were refused service in the witness box, and particularly having heard cross-examination of Mr Tony Maynard respecting his reason for pursuing the complaint, I have no doubt whatever that a timely explanation, with perhaps a conciliatory gesture, from Mr Neilson would have resolved this incident at a very early stage. I do not think that Mr Tony Maynard was actuated, in making his complaint, by a hope of recovering money. He said that he himself prepared his original complaint, without reference to Mr Michael Mansell or other legal adviser, and that he did not know at the time that money might be involved. By the time of the Commission's inquiry, Mr Maynard had become aware of the Commission's power to determine that damages ought to be paid but the emphasis in his counsel's submission to the learned President is on the need for recognition of his feeling of rejection. In the course of his address counsel said this:

"Racism is not solved by the payment of money, it is the internal acknowledgement of a feeling or attitude to which this Act is designed - that acknowledgement. Your Honour would know and remember as a practising lawyer that one of the proper bases of a confession to police, if it were genuine and non-forced type of confession, was that for many people it is the beginning of the process of reconciliation to the society in which we live. Now, that is what all the religious confessions are about and we now use psychoanalysts and so on, but this Act is designed not to solve problems by the payment of money but by an internal acknowledgement of a feeling or attitude, and that acknowledgement in itself begins the process of reconciliation between the two opposing groups. We say with sadness that that is the real finding we want here, or that is the real penalty we want here, and I think we have not found it, unfortunately, from the defendants."

That attitude was expressly reaffirmed by the applicant in his evidence in this Court.

In their submissions in this Court counsel for the respondent suggested that Mr Tony Maynard or Mr Michael Mansell might have made an approach to Mr Neilson before Mr Tony Maynard lodged his complaint on 8 June 1984. So far as Mr Mansell is concerned, the evidence indicates only that, at the hotel, he advised Mr Maynard to leave quietly and lodge a complaint later. There is nothing to indicate that he knew that Mr Maynard intended to proceed with the matter and there is positive evidence that he was not concerned with the making of the complaint. But, ignoring all this, the submission suggests that the respondent may still fail to understand why this case has been brought. Mr Tony Maynard believed that he had been refused service, under humiliating circumstances, because of his race or colour and that this act of discrimination had been cloaked in a lie. Upon that understanding, there was no reason for him to believe that any good purpose would be served by again approaching Mr Neilson. But Mr Neilson, on his own evidence, was aware that his justifiable act had been misinterpreted, in a manner which could only cause distress to Mr Maynard. There was everything to be gained by his proferring an explanation.
The conduct of Mr Neilson, both on and after 2 June 1984, upon which I have commented was relied upon by counsel for the applicant as indicative of the fact that his refusal to serve the applicant and his companions was actuated by racism. I do not think that this submission should be accepted. Mr Neilson and Mr Cerny had set for their hotel exacting dress standards. Mr Neilson, at least, had adopted the understandable view that it would be fatal to the maintenance of those standards if he were ever seen to relax them, even for friends or upon remonstrance. But the problem was that the standard "strictly neat casual" was so uncertain as to admit of only a highly subjective interpretation, which interpretation frequently provoked differences of opinion with prospective patrons. Mr Neilson seems to have coped with that problem by developing a policy, not only of never relenting but also of never explaining. Moreover, he seems to have policed the dress standards, and pursued that policy, with a measure of self-righteousness; taking the view that only in this way could the hotel be saved from sinking to its previous standards and reputation. That self-righteousness seems to have blinded him to the insensitivity of his manner of application of the dress policy; not only on this evening but on other occasions referred to in the evidence and involving persons of Caucasian descent.
Three other matters, which emerged in the evidence, warrant brief mention. The first relates to Mr Cerny's concession in evidence that he "had been deliberately unco-operative with the Human Rights Commission" in relation to the complaint. He gave as his reason that "they were wasting time and money and I am dead set against governments wasting money". Mr Cerny is, of course, entitled to his own view as to the proper ambit of government activity but, in the end, it is for Parliament to decide that matter. Mr Cerny's failure to co-operate with the Commission was not merely a further reflection of the insensitivity with which he and Mr Neilson have treated this whole matter but it has had the ironical effect of considerably increasing the cost of resolution of the complaint, including cost to the government.
Secondly, evidence was given by Mr Neilson that, upon the night in question, he had "in the back of (his) mind", a belief that, upon an occasion some 18 months earlier and before the renovation of the hotel, Mr Kerry Maynard had entered the public bar in an inebriated condition and had been refused service for that reason. At no time, whether upon the night itself or subsequently, was it put to Mr Kerry Maynard that this was so. At one stage in his evidence Mr Neilson said that he had taken this matter into account, upon 2 June 1984, in refusing service to the four men. At other times he denied having done so; although he seemed throughout his evidence to maintain the view that he was entitled indefinitely to bar from his hotel a person who had once previously been refused service because of inebriation; and notwithstanding that, upon subsequent occasions, that person was sober. (The unchallenged evidence in the present case is that none of the four men had been drinking before going to Maloney's on 2 June 1984.) I do not find it necessary to express any opinion about Mr Neilson's entitlement in law to apply such a ban or about the reasonableness of his doing so. Although I think that Mr Neilson may have allowed his belief that Mr Kerry Maynard had previously been excluded to influence his decision on 2 June 1984, it does not appear that this was in any way connected with Mr Kerry Maynard's race or colour. Were it otherwise, of course, there may well have been a contravention of s.13 of the Racial Discrimination Act.

Finally, in the course of cross-examination, senior counsel for the respondent put to the applicant questions about certain criminal convictions, the most recent of which occurred on 2 May 1975, when the applicant was apparently 21 years of age. These questions were put upon credit. In re-examination it emerged that the applicant had been in trouble upon a number of occasions before 1975. In total he has spent about six years in gaol. But it also appeared that shortly after his last release from prison, in 1977, the applicant formed a relationship with a woman with whom he is still living and by whom he has had three children. Since the commencement of that relationship Mr Maynard has had no convictions except for two driving offences. In my opinion his criminal record ought not to have been raised. It is important that people with a record of criminality be allowed by good behaviour to "live down" their past. The putting to a witness of questions about his or her criminal convictions is only justified in a case where the determination of the primary facts necessarily involves the question whether that witness is worthy of credit and where the nature and recentcy of the convictions are such as logically to diminish his or her credibility. In the present case neither condition applied. The differences between the evidence of the applicant and of the respondent were confined to marginal matters; and it cannot rationally be put against the credit of a man of 34 years of age, who has not since offended, that, at or before the age of 21, he committed offences of dishonesty. Indeed, the fact that, with such an adolescence, Mr Maynard has been able to maintain a settled family relationship for some 11 years, without any convictions for offences of dishonesty, is greatly to his credit.
In view of the fact that issues of credit were raised, in respect not only of the applicant but also of both Mr Leslie Maynard and Mr Kerry Maynard, it is proper for me to say that I have no hesitation in regarding each of these three persons as honest and reliable witnesses. I accept that, by reason of the matters already discussed, they misunderstood what happened in the lounge bar of Maloney's on the evening of 2 June 1984; but in forming the belief that they had been refused service upon racial grounds they acted reasonably and in complete good faith.
Towards the conclusion of the hearing there was some discussion with counsel as to the proper order for costs, under certain eventualities. Although the Court has a general discretion as to costs, all counsel accepted that, in a proceeding under s.25ZA of the Racial Discrimination Act, it would ordinarily be appropriate to make costs follow the event. But counsel for the applicant submitted that, if his client were to lose the case, wholly or predominantly by reason of evidence adduced in this Court for the first time, the Court should either refuse the respondent his costs or, at worst, order payment of only a proportion of them. I think that there is much force in this submission. The fresh evidence, led before me but denied to Einfeld J, has been critical in my reaching a conclusion different from that of the learned President. I think it extremely likely that, if that same evidence had then been adduced, the Commission would have dismissed the complaint. The effect of the respondent's failure fully to put his case upon that occasion has been to visit upon the applicant the burden of this fresh, and ultimately unsuccessful, proceeding. Had he succeeded in the Commission, Mr Neilson could not have recovered his costs; no provision being made for the recovery of legal costs incurred in connection with an inquiry under s.25Z. My present view is that the respondent should not be placed in a more favourable position because, by his own course of conduct, the applicant has been forced into this Court.
However, in deference to the request of counsel for the respondent, I will not now finally decide the matter of costs. At this stage the only order which I propose to make is that the Application be dismissed. I reserve the question of costs. If, notwithstanding the above, the respondent desires to press a claim for costs and so notifies my Associate within a period of 14 days, I will consider on their merits written submissions from both parties in relation thereto.

[1988] FCA 237

27 MAY 1988