'® 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 fell well short of the evidence adduced before me. I am not surprised that Einfeld J failed to regard the evidence he heard as being sufficient to exclude the likelihood of racial discrimination on the evening in question; whereas I think that he may 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 ($5,000) were manifestly 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 af damages would have arisen if the respondent had chosen to adduce all his evidence at the hearing before the Commission. From the applicant's point of view, if he was to obtain enforcement of the decision of the Commission, he had to take action in this Court. So costs would have had to be incurred, whatever the appropriate amount of damages. 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 cases of racial discrimination in which part of the loss sustained is economic loss capable of arithmetical calculation, there will usually be a subjective element in the damage sustained which is incapable of arithmetical calculation: see 8.252(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 them 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.252C 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 g.25ZC. My findings are set out in my earlier reasons. It must be for others to determine whether the case is one in 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 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. Mesociate: fount, foe. Date: 8 July 1988 Counsel for the Applicant: Mr PW 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 Date(s) of hearing: 11, 12 and 13 May 1988