Cassuto v Kostakidis [2025] FCA 1226

Federal Court of Australia|2025-10-09|Before: McDonald J

For the reasons explained above, I have not accepted most of the arguments advanced by Ms Kostakidis in support of her contention that many paragraphs of the amended statement of claim should be struck out. In particular, I do not accept that the amended statement of claim (or parts of it) should be struck out because it fails to disclose a reasonable cause of action. In addition, some of the grounds relied on by Ms Kostakidis are adequately resolved simply by reading the allegations in the amended statement of claim in a manner that is sensible and not unduly technical.
I do accept that [3], [4], [19], [21], [22], [23], [25] and [26] of the amended statement of claim should be struck out on the basis that they use various different descriptions to identify the two groups for the purposes of the second and third elements of the cause of action under s 18C(1) of the RD Act, and this gives rise to ambiguity. Relatedly, I also accept that the amended statement of claim is liable to be struck out insofar as it pleads, in [19] and [21], that the audience for each of the Posts was reasonably likely to include the group defined as the "Jewish and/or Israeli audience". If Mr Cassuto wishes to plead a particular "audience" then that should be done more clearly and in a way that identifies the role played by the alleged audience in his case.
I will make an order that Mr Cassuto have leave to file a further amended statement of claim, and further orders for the progress of pleadings in the proceedings. I will hear the parties on the question of costs.

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Discrimination Act 1975

Human Rights Commission Act 1986

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Creek v Cairns Post Pty Ltd (2001) 112 FCR 352; [2001] FCA 1007

Faruqi v Hanson [2024] FCA 1264

Kaplan v Victoria (No 8) [2023] FCA 1092

Karlsson v Griffith University [2022] FCA 591

Knowles v Commonwealth [2022] FCA 741

KTC v David [2022] FCAFC 60

Macabenta v Minister for Immigration and Multicultural Affairs [1998] FCA 1643; (1998) 90 FCR 202

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97

Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293; [2011] FCA 1126

Quinlan v ERM Power Ltd (2021) 7 QR 377; [2021] QSC 35

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15

Wertheim v Haddad [2025] FCA 720

The inquiry is whether race, etc, is a "true reason or true ground" for the conduct: Toben v Jones [2003] FCAFC 137; 129 FCR 515 at [63]. In that passage, Kiefel J explained that a person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did, and there may be other circumstances which throw light upon the reason for their actions.

I do not consider that the ordinary, reasonable listener would understand Mr Haddad in these passages, either in isolation or in the context of the sermon as a whole, to be saying anything about Jews generally or about all Jews. He is quite specific in the sermon. He is critical of Israel, the IDF and Zionists. As mentioned, Jews are only mentioned in relation to the Holocaust, and not in a critical or disparaging way. It is only if the ordinary, reasonable listener heard the sermon in the knowledge of what Mr Haddad had said in Speech A that they might conclude that the references to Zionists was a reference to all Jews because of what he says about Zionists in Speech A. But that is not how Speech B is to be understood. The ordinary, reasonable listener would understand that not all Jews are Zionists or support the actions of Israel in Gaza and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or ethnic group. Needless to say, political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity: see South African Human Rights Commission on behalf of South African Jewish Board of Deputies v Masuku [2022] ZACC 5; 2022 (4) SA 1 (CC) at [4]- [6] and [161]-[166] per Khampepe J for the Court. Indeed, the applicants did not submit that it is. The conclusion that it is not antisemitic to criticise Israel is the corollary of the conclusion that to blame Jews for the actions of Israel is antisemitic; the one flows from the other.

A pleading may be considered to be embarrassing if it suffers from narrative prolixity or irrelevancies to the point that it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms (2012) 247 FCR 440; [2012] FCA 27 at [80]- [84]. A party cannot be expected to respond to mere context, commentary, "history, narrative material or material of a general evidentiary nature": Fuller v Toms at [83].

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