Miller v Wertheim & Anor

[2001] FMCA 103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILLER v WERTHEIM & ANOR. [2001] FMCA 103

HUMAN RIGHTS – racial discrimination – alleged vilification of Jews in speech by first respondent – whether religious differences within the Jewish community can support a racial discrimination complaint.

PRACTICE AND PROCEDURE -  summary dismissal of application.

Federal Magistrates Act (1999) (Cth)

Federal Magistrates Court Rules

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Racial Discrimination Act 1975 (Cth), ss. 9(1); (1A)(a), (b), (c); 17(a), (b); 18C(1)(a), (b); 18C(2)(a), (b), (c)
Race Relations Act 1971 (NZ)

Attorney-General v Wentworth (1988) 14 NSWLR 481
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531
Commonwealth Bank of Australia v Inglis (1974) 131 CLR 311
Ealing London Borough Council v Race Relations Board [1972] AC 342
Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87
Goldberg v G Korsunski Carmel School (2000) EOC ¶93-074
King-Ansell v Police [1979] 2 NZLR 531
Travers v State of New South Wales [2000] FCA 1565
Webster v Lampard (1993) 177 CLR 598
Yo Han Chung v University of Sydney [2001] FMCA 94

Applicant: ELIANA FREYDEL MILLER

First Respondent:

Second Respondent:

PETER WERTHEIM

STEPHEN ROTHMAN

File No: SZ403 of 2001

Delivered on: 22 October 2001 (ex tempore)

Delivered at: Sydney

Hearing Date: 22 October 2001

Judgment of: Driver FM

REPRESENTATION

Applicant in Person

Counsel for the Respondent: Mr R Reitano

Solicitors for the Respondent: Geoffrey Edwards & Co

ORDERS

1. Pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules, the Applicant’s application to this Court is dismissed generally.

1. The applicant is to pay the respondent’s costs of the application including any reserved costs.

1. Pursuant to Rule 21.02(2) of the Federal Magistrates Court Rules, the amount of costs are set as the amount payable for a stage 2 proceeding under Schedule 1 of the Federal Magistrates Court Rules.

THE COURT CERTIFIES THAT:

1. Pursuant to Rule 21.15 it was reasonable for the respondent to employ an advocate at the hearing held on 22 October 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ403 of 2001

ELIANA FREYDEL MILLER

Applicant

And

PETER WERTHEIM

First Respondent

STEPHEN ROTHMAN

Second Respondent

REASONS FOR JUDGMENT

Background

1. On 11 May 2001 the President of the Human Rights and Equal Opportunity Commission (“HREOC”) terminated a complaint dated 4 February 2001 made by Ms Eliana Miller (“Ms Miller”) against Mr Peter Wertheim and Mr Stephen Rothman. In consequence of that termination Ms Miller filed an application in the Federal Court on 7 June 2001 alleging unlawful discrimination pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The respondents to that application were Mr Wertheim and Mr Rothman as well as the entire New South Wales Jewish Board of Deputies. On 30 August 2001 Ms Miller filed an amended application in this Court in which she deleted the Jewish Board of Deputies as a respondent. Ms Miller did so following a directions hearing at which I pointed out that as the Jewish Board of Deputies has no legal personality it was inappropriate that the Board be sued for damages under its own name.

2. Ms Miller’s application was transferred to this Court on the orders of his Honour Moore J on 20 July 2001.  Prior to that transfer being made, Mr Wertheim and Mr Rothman applied in the Federal Court on 11 July 2001 to have Ms Miller’s application summarily dismissed pursuant to Order 20, Rule 2 of the Federal Court Rules.  I agreed to hear that application pursuant to Rule 13.10 of the Federal Magistrates Court Rules.  That is the application that I have before me today. 

3. Ms Miller currently relies upon ss. 9(1), (1A)(a), (b) and (c); 17(a), (b); 18C(1)(a), (b); and 18C(2)(a), (b) and (c) of the Racial Discrimination Act 1975 (Cth) (“the RDA”). Ms Miller is, or was at the material time, a member of the New South Wales Jewish Board of Deputies. Mr Wertheim was, at the relevant time, the retiring President of the Board. Mr Rothman was the incoming President. Ms Miller’s case is founded upon her allegation that on 15 August 2000 at the annual general meeting of the New South Wales Jewish Board of Deputies, Mr Wertheim, who was then standing down as President, made a speech which allegedly vilified and intimidated Jewish people and called them destructive by comparing them to un Jewish and anti Jewish groups. Ms Miller alleges that Mr Wertheim 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 allegedly referred to certain Jews as a “threat”. Ms Miller further alleges that the incoming President, Mr Rothman, did nothing to censure Mr Wertheim and neither did anyone else present at the meeting with the exception of a Mr Otto Waldmann, who apparently spoke in critical terms following Mr Wertheim’s speech. Ms Miller alleges that on 18 August 2000 the Australian Jewish News reported Mr Wertheim’s speech on its front page.

4. The respondents’ application for summary dismissal of Ms Miller’s application is based on the proposition that Ms Miller’s application does not disclose any cause of action or, alternatively, her proceedings are vexatious or frivolous.

Consideration of the issues

1. In the case of Yo Han Chung v University of Sydney [2001] FMCA 94 I canvassed the general principles applicable in an application for summary dismissal of a principal application pursuant to Rule 13.10. I adopt those same principles in these proceedings noting that as in the case of Yo Han Chung v University of Sydney the principal applicant is unrepresented.  In their written submissions, the respondents have also referred to the case of Webster v Lampard (1993) 177 CLR 598 as supporting the proposition that an action should not be permitted to go to trial in the ordinary way where it is apparent that it must fail. The respondents also refer to the case of Fancourt v Mercantile Credits Ltd (1963) 154 CLR 87 at 99 where it was stated that the power of summary disposal should be exercised where it is clear that there is really no question to be tried. Those decisions are entirely consistent with the authorities I referred to in Chung v University of Sydney.  The question I therefore have to resolve is whether there is an arguable case to be put forward by Ms Miller in these proceedings.  If there is then I cannot accede to the respondents’ application for summary dismissal, at least on the ground that no cause of action is disclosed.  The other basis for the respondents’ application is that Ms Miller’s application is frivolous or vexatious. 

2. The principles relevant to whether or not proceedings are vexatious were summarised by Rodan J in Attorney-General v Wentworth (1988) 14 NSWLR 481 in which his Honour reviewed the judgment in Commonwealth Bank of Australia v Inglis (1974) 131 CLR 311. Rodan J expressed the tests as involving a consideration of whether or not the proceedings were instituted with the intention of annoying or embarrassing the persons against whom they are brought; whether they are brought for a collateral purpose and not for the purpose of having the Court adjudicate upon the issues to which they give rise; and whether they are so obviously untenable or manifestly groundless as to be utterly hopeless.

3. I can deal with this second leg of the respondents’ application shortly.  I am not satisfied that Ms Miller’s proceedings were brought with the intention of annoying or embarrassing the respondents or that they were brought for a collateral purpose.  I have assessed Ms Miller at some length in earlier directions hearings and today and I am convinced that she is entirely genuine in her beliefs that the speech made by Mr Wertheim was distressing and that something should be done about it.  All of the parties are or were members of the Jewish Board of Deputies and it is possible that both the speech by Mr Wertheim and these proceedings are part of a dispute between the parties as members of the Board.  I am not satisfied, however, that Ms Miller has brought these proceedings for a collateral purpose related to any such dispute within the Board divorced from a genuine belief in the issue of discrimination which she seeks to ventilate in this Court.  As I have said, I am convinced that Ms Miller is entirely genuine in her beliefs about the discriminatory conduct of the respondents, albeit that she may be misguided in those beliefs.  I am not prepared to accede to the application to summarily dismiss Ms Miller’s proceedings on the basis that her application is frivolous or vexatious. 

4. It remains to consider the principal question whether Ms Miller’s application discloses any cause of action.

5. Ms Miller has filed two affidavits in support of her application.  It is apparent from those affidavits and from evidence admitted by the respondents that Ms Miller was not present at the meeting of the Board at which the speech allegedly made by Mr Wertheim was made.  Ms Miller is relying upon reports of that speech, in particular the report which appeared in the Jewish News.  The respondents object to the evidence of the speech presented by Ms Miller on the basis that it is hearsay.  That is so, and this Court is bound by the rules of evidence, subject to the guidance provided by Parliament in the Federal Magistrates Act 1999 (Cth) directing the Court to operate informally. I would be unwilling to dismiss an application for relief under the HREOC Act alleging offensive conduct contrary to the RDA simply on the basis that the offensive conduct involved spoken words and that the evidence of those words is hearsay. If an application could be summarily dismissed on that basis then it would be hard to imagine any circumstance in which an applicant could bring an application complaining of offensive spoken words contrary to s.18C of RDA unless the respondent admitted the offensive words alleged. It is of the nature of offensive conduct by spoken words that the hearer must bring hearsay evidence of what was said. The respondents point out, however, that Ms Miller was not present when the words alleged were spoken and that there is no reliable record of what was said by Mr Wertheim. That clearly puts Ms Miller in a significantly weaker position than if she had been present. That is because her evidence becomes second hand hearsay. Nevertheless, I am unwilling to dismiss the application simply on the basis that it is based upon hearsay evidence. I consider that I must assess whether a cause of action can be identified based upon the material presented to the Court.

6. The respondents have pointed out that the material includes allegations additional to and different from those contained in Ms Miller’s original complaint to HREOC and Mr Reitano for the respondents has drawn my attention to s.46PO(3) of the HREOC Act which provides that the unlawful discrimination alleged in the application to the Court must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint, or must arise out of the same, or substantially the same, acts and practices that were the subject of the terminated complaint. That provision has been the subject of consideration in the Federal Court in the case of Travers v State of New South Wales [2000] FCA 1565. I that case, his Honour Lehane J considered that, while he was unwilling to dismiss the application on the basis of additional material which was not put before the Commission, s.46PO(3) would raise an issue of the admissibility of that material if it went to trial. The two issues are nevertheless related in that if there is no admissible evidence in support of an application then that supports the proposition that the application must inevitably fail. Secondly, in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531, his Honour Katz J considered the operation of s.46PO(3). His Honour said at paragraphs 38 and 39 of that judgment that:

   Paragraph (a) of s.46PO(3) of the HREOC Act proceeds on the basis that the allegations of fact being made in the proceeding before the Court are the same as those which were made in the relevant terminated complaint. The provision naturally permits the applicant to claim in the proceeding that those facts bear the same legal character as they were claimed in the complaint to bear. However, it goes further, permitting the applicant to claim in the proceeding as well that those facts bear a different legal character from that they were claimed in the complaint to bear, provided, however that the legal character now being claimed is not different in substance from the legal character formerly being claimed.

   Paragraph (b) of s.46PO(3) of the HREOC Act, on the other hand, permits the applicant to allege in the proceeding before the Court different facts from those which were alleged in the relevant terminated complaint, provided, however, that the facts now being alleged are not different in substance from the facts formerly being alleged. It further permits the applicant to claim that the facts which are now being alleged bear a different legal character than the facts which were alleged in the complaint were claimed to bear, even if that legal character is different in substance from the legal character formerly being claimed, provided that that legal character “arise[s] out of” the facts which are now being alleged.

7. In this case the applicant, Ms Miller, is not alleging a different legal character of the facts which are alleged. However, the only facts contained in the complaint to the Commission were the speech allegedly made by Mr Wertheim on 15 August 2000 and the conduct by Mr Rothman in permitting that speech to be made, or not dissenting from it. The matters contained in Ms Miller’s affidavits produce a range of additional factual material which was not put to HREOC. While I would be prepared to give an applicant some latitude, the basic principle under s.46PO(3) must be adhered to so that the complaints which come before the Court are first dealt with by the Commission; otherwise applicants would be permitted to bring many complaints before the Court which were totally different from those which were made to the Commission.

8. It does seem to me that much, if not all, of the material Ms Miller puts before the Court is quite different from the complaint which was made to the Commission.  As against that, Ms Miller says that the speech about which she originally complained was simply the culmination of a course of conduct which she finds objectionable.  I am prepared for the purposes of dealing with the dismissal application to consider the material Ms Miller has put before the Court on the basis that it is not beyond the bounds of possibility that some of that material would be found to be sufficiently related to the original complaint as to be admissible evidence in support of the application.

9. I turn then to the claims made by Ms Miller. Her application is first based on s.9(1) of the RDA. I accept the respondents’ submission that in order to make out a breach of that section Ms Miller must prove:

   a)a “distinction”, “restriction”, “exclusion” or “preference”;

   b)based on “race, colour, descent or national or ethnic origin”;

   c)which has the purpose or effect of nullifying or impairing;

   d)the recognition, enjoyment or exercise, on an equal footing; and

   e)of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

10. The respondents submit that Ms Miller’s claim based upon s.9(1) fails because she cannot establish any of the above elements. They submit that Ms Miller’s complaints are really about internal divisions within Judaism. They say that nothing that is alleged to have been said by Mr Wertheim was directed to “race, colour, descent or origin” as those words are understood in relation to s.9(1) of the RDA.

11. The term “race” is a broad term.  In Ealing London Borough Councilv Race Relations Board [1972] AC 342 the English House of Lords discussed the relevant United Kingdom legislation dealing with racial discrimination. Lord Simon said that the term “racial discrimination” is not a term of art in that the phrase “ground of colour, race or ethnic or national origins” was “rubbery or elusive language”. Lord Cross said that the reason why the words “ethnic or national origins” were added to the words “racial grounds” was to prevent argument over the exact meaning of the word “race”.

12. The meaning of “ethnic origins” was considered in the New Zealand decision of King-Ansell v Police [1979] 2 NZLR 531. In that case the New Zealand Court of Appeal held that Jews in New Zealand formed a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ).  Richardson J said this at page 543:

    “… a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock.  It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group.  They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.”

13. On the other hand there is authority that sub groups within the Jewish community do not fit the description of a distinctive racial or ethnic group.  In Goldberg v G Korsunski Carmel School (2000) EOC ¶93‑074 a school run in accordance with Orthodox Jewish law discriminated against all students who were not Orthodox Jews. The Western Australian State Tribunal in that case found that the imposition of special conditions on students who were not Orthodox Jews was because of theological considerations and dismissed the claim of racial discrimination. It follows that while the Jewish community as a whole can clearly be considered to have a particular national or ethnic identity for the purposes of s.9(1) of the RDA it does not follow that sub groups within that community can be similarly defined.

14. It is clear from the written submissions made by Ms Miller and from her affidavit evidence that she does not identify herself with a national or ethnic or racial group separate from the Jewish community as a whole. She refers to important religious differences within that community and with clear differences of approach between members in the New South Wales Jewish Board of Deputies. It is, however, abundantly clear from Ms Miller’s own material that her concerns lie with doctrinal and other religious differences within the Jewish community, not with any national, racial or ethnic distinctions within that community. Mr Wertheim was accused of conduct discriminatory of all Jews but the conduct identified by Ms Miller concerns alleged failure to follow strict orthodox Jewish teachings. These are religious matters, not national, racial or ethnic issues. In addition, with the exception of Mr Wertheim’s speech and Mr Rothman’s failure to prevent it, the evidence presented by Ms Miller is substantially different from that contained in her complaint made to HREOC, which points to the difficulties that would arise for her at trial in relying upon that evidence. Accordingly, I agree with the respondents’ submission that Ms Miller’s application, insofar as it is based upon s.9(1) of the RDA must fail.

15. I also agree with the respondents’ submission that Ms Miller’s application, insofar as it is based upon s.9(1A) of the RDA must also fail. Ms Miller complains about a speech allegedly made by Mr Wertheim and permitted to be made by Mr Rothman. Mr Wertheim was simply expressing his views. No consequence flowed from that speech, whatever its terms. Ms Miller may disagree strongly with what Mr Wertheim was reported to have said but she has not been denied any benefit or subjected to any discernible detriment by reason of the speech. In addition, once again, Ms Miller points to doctrinal or other religious differences within the Jewish community rather than any relevant discrimination based upon race, colour, descent or national or ethnic origins. Accordingly, her claim based upon s.9(1A) must necessarily fail.

1. Ms Miller’s claim based upon s.17 of the RDA appears to be directed at Mr Rothman. The allegation appears to be that Mr Rothman incited the doing of an act that would amount to unlawful discrimination by another person, presumably the making of the speech by Mr Wertheim. There is no evidence of such incitement by Mr Rothman. He was apparently present when the speech was made and did not speak against it. That, however, does not amount to incitement. There is nothing in the material before the Court to suggest that either Mr Rothman or Mr Wertheim did anything to incite racial discrimination by anyone else.

2. Ms Miller’s claim based upon s.18C of the RDA must also fail. The first reason is that the evidence available as to what Mr Wertheim said in his speech contains nothing which, on any reasonable view, could be regarded as offensive, insulting, humiliating or intimidating to another person or group of people. The Australian Jewish News reported Mr Wertheim as saying that the Board should oppose those who would divide the Jewish community and he evidently referred in particular to certain messianic groups, extreme leftists and “a small part of the Orthodox community”. The newspaper reported that only one person present expressed any views at variance with those attributed to Mr Wertheim. Mr Wertheim’s reported comments were an apparent call for unity within the Jewish community and, viewed objectively, I see nothing objectionable in them. Ms Miller, in her written submissions, has drawn attention to what she sees as important religious differences between Orthodox and non Orthodox Jews but I see nothing in the reported comments by Mr Wertheim which could be construed as an attack upon Jewish beliefs. In any event, the RDA is not directed to discrimination based on religion but discrimination based on racial, national or ethnic origins. As I have already noted, Ms Miller does not place herself within a distinct ethnic community other than the Jewish community. Doctrinal differences within that community cannot be resolved by resort to the RDA. They may potentially be resolved in a religious case before the Jewish Religious Tribunal (a “din torah” case before the Beth Din). They may also be resolved by debate within the New South Wales Jewish Board of Deputies. It seems to me that those are the appropriate forums for the resolution of the matters raised by Ms Miller.

3. I conclude that the application brought by Ms Miller discloses no cause of action under the RDA or the HREOC Act and that it must necessarily fail. Accordingly, the respondents have made out a case for the summary dismissal of the application pursuant to Federal Magistrates Court Rule 13.10(a). I will make that order. The respondents have also been wholly successful in their application to summarily dismiss the principal application and so are prima facie entitled to an order for costs. The respondents have done nothing to disentitle themselves to an order for costs. However, the respondents have been successful without the necessity to undergo a full trial of Ms Miller’s application. The resolution of the matter at this stage is a discreet preliminary hearing. Accordingly, pursuant to Rule 21.02(2) I set the amount of costs payable by Ms Miller as the amount payable for a stage 2 proceeding under schedule 1 to the Federal Magistrates Court Rules. For the purposes of Rule 21.15 I also certify that it was reasonable for the respondents to employ an advocate to appear at today’s hearing.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:    22 October 2001