Miller v Wertheim

[2002] FCAFC 156

FEDERAL COURT OF AUSTRALIA

Miller v Wertheim [2002] FCAFC 156

HUMAN RIGHTS – whether a speech about intra-communal conflicts that allegedly offended a group of persons was made because of the Jewish ethnic origin of those persons

Racial Discrimination Act 1975 (Cth) ss 9(1), 9A, 17 and 18C

Yap v Granich & Associates [2001] FCA 1735 - cited
Webster v Lampard (1993) 177 CLR 598 - cited
King-Ansell v Police (1979) 2 NZLR 531 - cited

ELIANA FREYDEL MILLER v PETER WERTHEIM AND STEPHEN ROTHMAN
N 1464 OF 2001

JUDGES:      HEEREY, LINDGREN AND MERKEL JJ
DATE:           27 MAY 2002
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1464 OF 2001

BETWEEN:

ELIANA FREYDEL MILLER
APPLICANT

AND:

PETER WERTHEIM
FIRST RESPONDENT

STEPHEN ROTHMAN
SECOND RESPONDENT

JUDGE:

HEEREY, LINDGREN AND MERKEL JJ

DATE OF ORDER:

27 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   Leave to appeal be granted.

2.   The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1464 OF 2001

BETWEEN:

ELIANA FREYDEL MILLER
APPLICANT

AND:

PETER WERTHEIM
FIRST RESPONDENT

STEPHEN ROTHMAN
SECOND RESPONDENT

JUDGE:	HEEREY, LINDGREN AND MERKEL JJ
DATE:	27 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The appellant alleges that the respondents have engaged in “Racial vilification, Racial discrimination and Racial incitement” in breach of the Racial Discrimination Act 1975 (Cth) (“the Act”). The conduct of the respondents relied upon by the appellant as constituting “unlawful discrimination” was set out in her Application to the Court as follows:

   “On 15^th August 2000 at the Annual General Meeting of the NSW Jewish Board of Deputies, Mr Peter Wertheim, who was standing down as president, made a speech which vilified and intimidated Jewish people and called them destructive by comparing them to un-Jewish and anti-Jewish groups.  He also accused Jewish people of dividing the Jewish community, incited against Jewish people calling for others to ‘stand up to those who would divide the community’.  He called respectful Jews a ‘threat’.  The incoming president Mr Stephen Rothman did nothing to censure Mr Wertheim, nor did anyone else with the exception of Mr Otto Waldmann who did speak out against Mr Wertheim’s invective.

   On 18^th August 2000 the Australian ‘Jewish News’ reported Mr Wertheim’s speech on its front page.”

2. The report of the speech of the first respondent to which the appellant referred is as follows:

   “The NSW Jewish Board of Deputies must have the courage to stand up to those who would divide the community, outgoing President Peter Wertheim said in a parting address.

   Describing his four years in the post as a privilege and an honour, he noted that there was a tendency of the Jewish world to polarise.  ‘The threats are not external, as they have been in the past, they are almost overwhelmingly internal,’ he said.

   It was distressing to…