White, P. v Gollan, D

[1991] FCA 881

5281 91

JUDGMENT NO. ......-........ . ..-

IN THE FEDER~V, COURT OF AUSTRALIA ) No. QG 63 of 1991

QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: PATRICIA WHITE AND PETER WHITE

Applicants

AND: DARRELL GOLLAN

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	1 OCTOBER 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The respondent pay to the applicant Patricia White the sum of $2,000.

2 .    The respondent pay to the applicant Peter White the sum of $1,000.

3.    The respondent pay the applicants' costs, to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QG 63 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: PATRICIA WHITE AND PETER WHITE

Applicants

AND:  DARRELL GOLLAN

Respondent

CORAM: PINCUS J.

W: BRISBANE

W: 1 OCTOBER 1991

EX TEMPORE REASONS FOR JUDGMENT

This is an application under s.25ZA of the Racial

Discrimination Act 1975. The applicants sue under that section to enforce a determination made under s.252 of that Act. It seems unnecessary for present purposes to set out the relevant provisions in detail, but it should be mentioned that

the immediately relevant provision is s.25ZB(iv). Under that

provision, the Commission established by the Act is empowered,

in certain circumstances, to make a declaration that the

respondent should pay to the complainant damages by way of
compensation for any loss or damage suffered by reason of the
conduct of the respondent.

Then s.ZSZA(1) enables a complainant to sue in this Court for an order to enforce such a determination and, under s.25ZA(2), where the 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 provides that orders made by the Federal
Court under sub-s.2 may give effect to a determination of the
Commission.

What happened in this case was that the Commission,

constituted by Sir Ronald Wilson, conducted a hearing and
heard evidence to the effect that the complainants were
refused service in the bar of a hotel because of their race
and that was said to be a contravention of s.13 of the Act.
Section 13 reads, so far as relevant, as follows:

"It is unlawful 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".

The conclusion to which the Commission came, on the

evidence before it, was that at the relevant time and place

there was a breach of that section in relation to the then

complainants, now applicants. The course which the Commission
took was that prescribed by the Act, culminating in the
holding of an inquiry which resulted in the declaration which

I have mentioned.

The scheme of the Act is that the applicants have no

right to have the decision of the Commission enforced - that
is, they cannot sue simply on the basis that the Commission
has decided in their favour, and that the Court should then

3   ',

make the same order. It seems to me to be necessary, as I
read the Act, for the complainants, now applicants, to prove
their case all over again, and to satisfy this Court that the

orders which they seek should be made.

The applicants' solicitors apparently have taken the

same view, because they have adduced evidence which I have

read, setting out the circumstances in which the incident

occurred. It is perhaps unnecessary to set that evidence out

in detail, but I propose to mention the substance of one of

the affidavits, and that is the affidavit of the first-named

applicant, Patricia White. This applicant says she entered

the relevant hotel at about 7.15 pm on 9 June 1988. There
were people being served there. There were bar attendants,
and the respondent was present. The applicant was ignored;
other people were attended to. The applicant made eye contact
with one of the bar attendants, who spoke to the other bar
attendant, who is the respondent's wife or thought to be the

respondent's wife. The applicant asked that bar attendant for

two beers. The bar attendant said, "Are you with him?",

indicating a man slightly to the rear. The applicant said she

did not know the man. That man was served, and the applicant

was told by the bar attendant that she could not be served.

The other applicant, Peter White, has given evidence

to somewhat similar effect. The circumstances are such as, in

view of the applicants' race, to incline one to think that there is a racial element in the matter. I also take into account the fact that when the respondent was recently served

with notice of the present application, the solicitor, Francis Joseph O'Sullivan, who served the process, was

involved in rather an unpleasant encounter. It is perhaps

worth reading the relevant part of the affidavit of service.

Mr O'Sullivan says:

"I then produced the document and said "I am a Notice from the Court. The Respondent became agitated and proceeded to abuse me as a Solicitor, to abuse my firm for involvement in the matter, to abuse the Applicants, referring to them continually in an abusive manner and prefixing each abusive adjective with the word "black" and indicated that he would never pay them anything and would go to jail first and further indicated that he would not turn up at Court on Tuesday and the Court could do what it liked".

The circumstances are such that, like the learned

president of the Commission, I have attained a state of
satisfaction that the relevant provision of the Act has been
breached. The procedural history of the matter is that the
proceedings having been served, the matter first came before

me on 12 September 1991. It was adjourned until today and, in

the meantime, the respondent received further notice in the

form of a notice of motion, indicating that the applicants
would apply for judgment today, and it was service of the

latter document which produced the incident which I mentioned.

In all the circumstances, it appears to me that the

applicants have adduced sufficient evidence to warrant an order of the kind which is contemplated by s.25ZA and, in particular, an order giving effect to the Commission's

determination. The Commission's determination, I should
stress, is not binding upon the Court, and indeed not binding
upon any party. But it seems to me proper to take it into

account in determining what should be done.

I will therefore order that the respondent pay to

the applicant, Patricia White, the sum of $2000, and that the

respondent pay to the applicant, Peter White, the sum of

$1000, and the respondent pay the applicants' costs, to be

taxed.

I certify that this and the
four preceding pages are a
true copy of the reasons
for judgment herein of his

Honour Mr. Justice Pincus

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