Federal Court of Australia

Bharatiya v Antonio (No 2) [2022] FCA 636

ORDERS

THE COURT ORDERS THAT:

1.    In addition to the amounts the subject of the orders dated 26 April 2022, the respondent do pay to the applicant the amount of $137.72 by way of reimbursement of process server fees incurred by the applicant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    On 26 April 2022, I upheld a claim by Mr Bejoy Bharatiya that Mr Robert Antonio had engaged in acts that were unlawful under s 18C of the Racial Discrimination Act 1975 (Cth): Bharatiya v Antonio [2022] FCA 428. In addition to making a declaration to that effect, I ordered payment of compensation of $750, ordered the reimbursement of process server fees of $132 incurred by Mr Bharatiya and made directions concerning any application for costs. I indicated that I would deal with any such application on the papers.

2    In the course of the proceedings, each of Mr Bharatiya and Mr Antonio acted on their own behalf. Mr Bharatiya has filed an outline of submissions to which he has appended copies of tax invoices, invoice itemisations and a debtor statement from a firm of solicitors. He also says that he incurred a second set of process server fees of $137.20. He seeks an order providing 'full reimbursement'. He also asks the Court to be involved in collecting a cheque from Mr Antonio.

3    Mr Antonio has provided an email in which he says he is not claiming any 'damages' which I take to be a reference to costs. Otherwise, he provides a brief explanation of his circumstances and makes certain assertions about the circumstances of Mr Bharatiya.

4    In Niardone v Clubb (No 3) [2021] FCA 1449 at [29]-[32] I summarised the relevant principles as to costs where a party had achieved partial success. As there noted, where a party seeks a substantial award of damages and succeeds only in obtaining an award of nominal damages then that award will not ordinarily entitle an applicant to the costs of the proceedings. Further, although a successful party will ordinarily obtain an award of costs, a measure of vindication may not be sufficient to support an exercise of the costs discretion in favour of a party.

5    The matters raised by Mr Antonio are not relevant to whether there should be an award of costs in favour of Mr Bharatiya. The information provided by Mr Bharatiya shows that he did not seek legal advice until after he commenced the present proceedings. Amongst other things, his initial claim was for damages as a punitive measure of $50,000, damages of $5,750 for an alleged unfounded complaint in the Magistrates Court, $9,453 for costs of realigning a boundary fence and costs of hiring a lawyer of $10,000. By the time of the hearing, he had confined his claim to $11,278 plus legal costs said to be $2,689.72.

6    As I have noted, the compensation that was ultimately awarded was for $750. It was not a nominal award, but it was well below what was sought. Further, Mr Bharatiya was also not successful as to other aspects of the claim that he had advanced for much of the proceedings.

7    It appears from the invoice itemisations for the accounts from the lawyers to Mr Bharatiya that they relate to the period from 25 August 2021 to 21 October 2021. These were periods when Mr Bharatiya was maintaining his much broader claim. They were incurred well before the hearing and consist principally of considering the papers prepared by Mr Bharatiya, advising in conference and thereafter attendances for email communications between Mr Bharatiya and his lawyers. There is otherwise no evidence as to the work that was done and how it is said to relate to the proceedings. In those circumstances, it has not been established that the legal costs claimed have any real connection to the conduct of the limited aspects of the claim on which Mr Bharatiya was successful.

8    For completeness, I note that the debtor statement indicates that only $1,700 in fees were incurred by Mr Bharatiya with the balance of $720 being written off by the firm. Further, even if it has been shown that there were costs that had been incurred that related to the conduct of those aspects of the case on which Mr Bharatiya was successful, there is no aspect of the conduct of the defence of the proceedings by Mr Antonio that would justify an order for costs on an indemnity (or full reimbursement) basis.

9    In the circumstances, I am not satisfied that there should be an order for legal costs in favour of Mr Bharatiya. However, on the information provided he has incurred a further disbursement of $137.72. I will order Mr Antonio to reimburse that further amount.

10    No reason has been advanced as to why this Court can and should require Mr Antonio to make payment of the amounts due under the Court's orders by cheque delivered to the Court registry as sought by Mr Bharatiya.

11    Therefore, the only further order will be for reimbursement of the additional process server fee.

12    These reasons conclude the conduct of the proceedings.

Associate:

Dated:    31 May 2022