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 1~~18C

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

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

This is an ex tempore judgment which has been revised and edited from a the transcript.
~~It relates to~~The 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

In January this year, Mr Cox lodged a complaint with the ~~Human Rights and Equal Opportunity~~ Commission ~~in relation to~~concerning 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 is~~is the world leader of that Church.
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.
On 26 July ~~this year~~2006 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 restrain~~against the three respondents, Fathi Said of ixwebhosting in Kentucky in the United States, Yahoo.com, whose address is given as North Sydney, and Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 1300
Decision Date: 17 August 2006

CaseChat Overview and Summary

Wade Ewart Cox, the applicant, sought interim injunctions against Fathi Said, Yahoo.com, and Douglas Becker, the respondents, under section 46PP of the Human Rights and Equal Opportunity Commission Act 1986. Mr Cox sought these injunctions to prevent the publication of what he described as defamatory and malicious material on certain websites, pending the resolution of a complaint he had lodged with the Human Rights and Equal Opportunity Commission. This complaint, made under section 18C of the Racial Discrimination Act 1975, alleged that these websites were engaging in acts that offended, insulted, humiliated, or intimidated him and his group, the Christian Churches of God, because of their shared ethnic origin.

The legal issues before the court involved determining whether the publication of the material constituted acts done because of the ethnic origin of Mr Cox and his group, and whether the granting of interim injunctions was necessary to ensure the effective exercise of the Human Rights and Equal Opportunity Commission's powers. The court had to assess whether the material was indeed defamatory and malicious and if it targeted Mr Cox and his group specifically because of their ethnic origin. Furthermore, the court needed to consider whether the injunctions would help maintain the status quo or protect the rights of the parties involved.

The court found that the application and affidavit filed by Mr Cox were not satisfactory and requested an amended application and affidavit. Despite the amended application and affidavit, the court had serious doubts about whether the Christian Churches of God constituted a group with a common ethnic origin as defined by section 18C of the Racial Discrimination Act. The court also questioned whether the material published on the websites was indeed done because of the group's ethnic origin. Additionally, the court was not convinced that granting interim injunctions would ensure the effective exercise of the Commission's powers or maintain the status quo. Consequently, the court dismissed the application for interim injunctions.

Orders