Cox v Said

[2006] FMCA 1300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COX v SAID & ORS [2006] FMCA 1300

HUMAN RIGHTS – Aapplication for interim injunctions – publication of offensive material on websites – religious group – ethnic origin – acts done because of ethnic origin – orders not necessary to ensure effective exercise of  Human Rights and Equal Opportunity Commission’s powers – application dismissed.

Racial Discrimination Act 1975, s, s.ection 118C

Human Rights and Equal Opportunity Commission Act 1986, s, s.ection. 46PP

Gardiner v National Netball League Pty Limited (2001) 182 ALR 408

Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414
Rainsford vGroup 4 Correctional Services [2002] FMCA 36

Applicant: WADE EWART COX

First Respondent: FATHI SAID

Second Respondent: YAHOO.COM

Third Respondent: DOUGLAS BECKER

File Number: CAG39 of 2006

Judgment of: Mowbray FM

Hearing date: 17 August 2006

Delivered at: Canberra

Delivered on: #17 August 2006

REPRESENTATION

Advocate for the Applicant: In person

Advocate for the Respondents: No appearance

ORDERS

1. The application filed on 26 July 2006 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG39 of 2006

WADE EWART COX

Applicant

And

FATHI SAID

First Respondent

YAHOO.COM

Second Respondent

DOUGLAS BECKER

Third Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment which has been revised and edited from a the transcript. 

2. It relates toThe applicant, Mr Wade Cox, seeks interim injunctions restraining the respondents, Mr Fathi Said, Yahoo.com and Mr Douglas Becker, under s.ection 46PP of the Human Rights and Equal Opportunity Commission Act 1986 from publishing “defamatory and malicious material” pending consideration of a complaint lodged with the Human Rights and Equal Opportunity Commission.

Background

1. In January this year, Mr Cox lodged a complaint with the Human Rights and Equal Opportunity Commission in relation toconcerning the activities of a number of websites publishing material which broadly could be classified described as defamatory and malicious against him and against the Christian Churches of God.  Mr Cox says he of which he isis the world leader of that Church.

2. Theat complaint is was lodged in relation to s.ection 18C of the Racial Discrimination Act 1975. and  It claims that these organisations, doing are engaged in certain acts activities which, to quote the s.ection 18C, “offend, insult, humiliate or intimidate” himself Mr Cox and his group. and tThese acts activities are said to be done because of the common ethnic origin of himself Mr Cox and other people in the group.

3. On 26 July this year2006 he Mr Cox filed an application in this Court seeking an interim injunction under s.ection 46PP of the Human Rights and Equal Opportunity Commission Act seeking to restrainagainst the three respondents, Fathi Said of ixwebhosting in Kentucky in the United States, Yahoo.com, whose address is given as North Sydney, and Mr Douglas Becker of Tacoma in the United States.

4. The application and affidavit filed on 26 July 2006, in my view, wasere not satisfactory and did notto allow assist the Court to. proceed so I therefore asked required
   Mr Cox to file an amended application and a further affidavit. which hHe did so.  These were filed on 3 August 2006. 

1.I also made ordersdirected that theose amended further documents or further documents andtogether with the original application and affidavit be served by 11 August 2006 on the second respondent, that is, Yahoo.com as it, having s an address in Australia by 11 August.

1. Mr Cox told the Court this morning that he had served the documents personally on Yahoo done this on 4 August 2006 and this had been served personally on Yahoo.  I have no reason to doubt him although I have no evidence, apart from his assertions from the bar tablehim.  When the matter was called there was no response.  The two overseas respondents have not been served. 

2. At the commencement of this morning's proceedings I indicated to
   Mr Cox that I had read all the material and I had reached a tentative view, subject to any submissions he would wish to put to me today, that the his application for an interim injunctions should be dismissed.  I briefly then provided told him  with my reasons and then allowed himan opportunity to put make any submissions to me.
   Mr Cox availed himself of this opportunity.

Consideration

1. The amended application filed and the affidavit filed on 3 August 2006 - particularly the affidavit on 3 August - annexures many a large number of documents, the sources for many of which the sources are not clear.  Thoese documents do contain material which could be said to vilify the applicantMr Cox.  However, I have grave doubts that it can be said from this material that he hads been vilified because of his ethnic origin.

2. It is also not clear how some of the material relates to the Christian Churches of God.  Much of it involves personal attacks on Mr Cox, not the Christian Churches of God. and tThe connection of between all the documents with and the named respondents is not clear, especially with Mr Becker, is not apparent. although  Nevertheless it is obvious that some of the material falls on sites hosted, for example, by Yahoo, for example.

3. Mr Cox has made certain assertions to the Court about his group's origin. but, as As I have indicated, I have real doubts that it the group would amount, not withstanding the references to various comperable - what he says "comperable groups", particularly the Jews and the Sikhs, amount to an ethnic group such that s.ection 18C of the Racial Discrimination Act would appliesy.  I have reached this view notwithstanding Mr Cox’s references to what he says are comparable groups, particularly the Jewish people and the Sikhs.

4. Section 46PP of the Human Rights and Equal Opportunity Commission Act relevantly provides:

   (1)  At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:

   (a)  the status quo, as it existed immediately before the complaint was lodged; or

   (b)  the rights of any complainant, respondent or affected person.

   (2)The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.          

   At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain (a) the status quo as existed immediately before the complaint was lodged or (b) the rights of any complainant, respondent or affected person.

   And (2):

   The application for an injunction may be made by the Commission, a complainant, a respondent or an affected person.

5. In Gardiner v National Netball League Pty Limited (2001) 182 ALR 408 at [10] The itCourts have was said that in an application for an interim injunction it under this provision does not present an easy decision task for a the Court - and I am quoting from Gardiner v The National Netball League Pty Limited.  It is not an easy one -

   because clearly there is a duty to look at the background information, the evidence presented, to determine what the status quo is, whether it should be preserved by the granting of an interim injunction and to also have regards to the rights of a respondent.

6. In Rainsford vGroup 4 Correctional Services [2002] FMCA 36, the Court said at [35] though that:

   When a court considers the granting of any interim relief, it is appropriate that the court does apply the normal principles which would otherwise apply at common law to the granting of that interim relief, though I accept that in applying the principles to the exercise of the court's discretion under s 46PP, the court should not regard itself as constrained solely by those common law principles. The Court should not regard itself as constrained solely by those common law principles.

7. In Li v Minister for Immigration and & Multicultural Affairs [2001] FCA 1414, Emmett J said, and I quote at [36]:

   The power or jurisdiction conferred by section 46PP likewise is limited to the orders necessary to ensure the effective exercise of the powers of the Commission and the jurisdiction of the Court in the event of an application being made to the Court under the HREOC Act following the determination of a complaint.

8. Section 18C of the Racial Discrimination Act applies to aActs done because - and turning to 1B because of the race, colour or national or ethnic origin of a person. 
   Mr Cox relies on his group’s ethnic origin.  I have already indicated made clear that I have real serious doubts on the material that has been presented tois before me, whether the Christian Churches of God can be regarded as a group of members with a common ethnic origin.

9. Furthermore, Even if I accepted that the Christian Churches of God is a group whose members have a common ethnic origin, there is a real question whether the acts done by the web hosts were done because of that group'sthe members’ ethnic origin, accepting that it may be a group of common ethnic origin.  Mr Cox said today in response to this concern that he had contacted the two hosts earlier this year and material was still being published.  Therefore these web hosts were party to the alleged breaches.

10. Furthermore, to use Emmett Js words, I put toasked Mr Cox today in what way am I to grant an interim injunction how granting interim injunctions would would result in the words of Emmett J “ensure the effectivethe exercise of the powers by of the Commission”.  How would they be  be ineffective if I were not to issue the injunctions.  His response was that the complaint having been filed in January this year, the Commission was taking too long in the its investigation.  , iIt still had some months to go. and tThise offensive material -– although not all of it, and he accepted that some was no longer on the various websites – - was still being published.  He accepted that some was no longer on the various websites.

Conclusions

1. I am conscious of the public interest and importance of in protecting small groups, especially those whose views others may regard as different or strange.  I am equally conscious of the importance of the protection of freedom of expression. 

1.In the result, in my view, this is not an appropriate case in which to exercise my discretion to restrain the named respondents to this application.. 

1. I note that nNot all parties have been served but I can see no useful purpose in prolonging this matter. 

2. I gave the applicant an opportunity to file an amended application and affidavit and he did after I had expressed concern that the material originally filed was not satisfactory.  The further documents filed that has been subsequently confirmed my earlier reservations.

1.In my view the granting of an injunctions by me as sought by Mr Cox would not maintain the status quo as existed immediately before the complaint was lodged. and Nor is not it necessary to ensure the effective exercise of the Commission's powers.

Conclusion

1. In my view tThe appropriate course is to proceed with the complaint in the Commission and to await the resolution of thate matter there. 

1. The order of the Court therefore will be that the application be dismissed.

I certify that the preceding twenty- three (23) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate:  Beau Wilson

Date:   13 September 2006