Cox v Becker

[2006] FCA 1670

FEDERAL COURT OF AUSTRALIA

Cox v Becker [2006] FCA 1670

PRACTICE AND PROCEDURE – leave to serve outside the jurisdiction – no prima facie case made out – leave refused   

Racial Discrimination Act 1975 s 18C(1)(b)
Federal Court Rules, O 8 r 3(2), O 8 r 9  

WADE EWART COX AND CHRISTIAN CHURCHES OF GOD v DOUGLAS BECKER, FATHI SAID IXWEBHOSTING, YAHOO.COM/7 AND GAVIN RUMNEY
ACD 25 OF 2006

GYLES J
5 DECEMBER 2006
SYDNEY (BY TELEPHONE LINK TO CANBERRA) (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 25 OF 2006

BETWEEN:

WADE EWART COX AND CHRISTIAN CHURCHES OF GOD
Applicants

AND:

DOUGLAS BECKER
First Respondent

FATHI SAID IXWEBHOSTING
Second Respondent

YAHOO.COM/7
Third Respondent

GAVIN RUMNEY
Fourth Respondent

JUDGE:	GYLES J
DATE OF ORDER:	5 DECEMBER 2006
WHERE MADE:	SYDNEY (BY TELEPHONE LINK TO CANBERRA) (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

Leave to serve the proceeding outside the jurisdiction be refused. 

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 25 OF 2006

BETWEEN:

WADE EWART COX AND CHRISTIAN CHURCHES OF GOD
Applicants

AND:

DOUGLAS BECKER
First Respondent

FATHI SAID IXWEBHOSTING
Second Respondent

YAHOO.COM/7
Third Respondent

GAVIN RUMNEY
Fourth Respondent

JUDGE:	GYLES J
DATE:	5 DECEMBER 2006
PLACE:	SYDNEY (BY TELEPHONE LINK TO CANBERRA) (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

1. The applicant has made a request pursuant to O 8 r 9 of the Federal Court Rules for service in a foreign country in relation to three respondents, namely, Gavin Rumney, Douglas Becker and Fathi Said.  In referring to the applicant, I refer to Mr Cox.  The proceeding purports to be also brought on behalf of an applicant called ‘Christian Churches of God’ but I am not yet satisfied that any such body with legal personality capable of suing in Australia exists. 

2. The requests pursuant to O 8 r 9 are out of order as no leave has been given to serve a document in a foreign country.  I indicated to Mr Cox that I would look at the merits of such an application.  Before a party can be given leave to serve an originating process out of the jurisdiction, that party must have a prima facie case for the relief claimed in the proceeding (O 8 r 3(2)).  I am not satisfied that there is such a prima facie case for relief.

3. The proceeding arises out of a decision by a delegate of the President of the Human Rights and Equal Opportunity Commission (the Delegate) to terminate a complaint of breach of the Racial Discrimination Act 1975 (Cth). I have had regard to the contents of the Form 167 which has been filed, the application, a draft statement of claim and an affidavit of Mr Cox filed on 8 November 2006. The Form 167 includes the information provided by Mr Cox to the Human Rights and Equal Opportunity Commission in support of the claim. I have also had regard to what was said by Mr Cox on 6 November last.

4. The essence of the complaint was that the entity described as the Christian Churches of God, its members and adherents were attacked and vilified due to their adherence to Jewish Biblical doctrines.  They claim to be, in effect, Messianic Jewish.  They alleged they suffer similar racial discrimination as do adherents of Orthodox Judaism.  It was claimed that the Jews are adherents to a religion but qualify for human rights protection on the grounds that they constitute a specific ethnic group due to their religious beliefs.  It was claimed that the Christian Churches of God are in exactly the same situation.  The faith was described as Sabbatarian. 

5. The Delegate gave reasons for terminating the complaint.  Having considered the authorities in relation to what constitutes ethnic origin and an ethnic group for the purposes of the Racial Discrimination Act 1975, the Delegate was not satisfied that the members of, and adherents to, the Christian Churches of God constituted an ethnic group or that any action against them was by reason of ethnic origin. The Delegate was, therefore, of the view that the requirements under s 18C(1)(b) of the Racial Discrimination Act 1975 were not satisfied. 

6. The Delegate was also of the view that, even if the members of the Christian Churches of God did constitute an ethnic group, the material complained of could not be considered to be ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’ them on the basis of their ‘ethnic origin’.  It was pointed out that insult on the basis of religious beliefs is not a ground covered by the racial hatred provisions of the Racial Discrimination Act 1975.

7. I can detect no error in the manner in which the Delegate dealt with and terminated the complaint.  I can see nothing in the information given to the Human Rights and Equal Opportunity Commission, in the additional material that has been provided by Mr Cox or in what Mr Cox said in Court on 6 November 2006 which assists his case.  In my opinion, there is no reasonable prospect of establishing that persons who adhere to what is called the Christian Churches of God, being Sabbatarian, are of the same ethnic origin or would constitute an ethnic group for the purposes of the Racial Discrimination Act 1975.  In my opinion, the complaint was misconceived and the proceeding doomed to failure.

8. Leave to serve the proceeding outside the jurisdiction is refused.  The requests which have been filed will not be acted upon.  This ruling may have consequences for the proceeding as a whole.  That is to be considered when the matter is next before the Court.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:        5 December 2006

The Applicant appeared in person
Date of Hearing:	6 November 2006
Date of Judgment:	5 December 2006