Maynard, A.L. v Neilson, M.D. [1988] FCA 336

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NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY GENERAL DIVISION

BETWEEN:

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

) ) ) No. TG 11 of 1987 ) )

ANTHONY LAURENCE MAYNARD

Applicant

MICHAEL DAVID NEILSON

Respondent

REASONS FOR JUDGMENT REGARDING COSTS

When I delivered jugement in this matter on 27 May

1986 I reserved the matter of costs.

In my reasons delivered

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,

notwithstanding my then comments.

Ss.

- 'JUDGMENT No. 3242.2

The respondent did decide to seek an order for costs and I have had the benefit of comprehensive written submissions 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 27 May I indicated that the fresh evidence led before this 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 Commission, 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