Federal Court of Australia

Cassuto v Kostakidis [2025] FCA 1226

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 3, 4, 19, 21, 22, 23, 25 and 26 of the amended statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth).

2.    The interlocutory application filed by the respondent on 16 May 2025 otherwise be dismissed.

3.    The applicant have leave to file a further amended statement of claim.

4.    By 31 October 2025, the applicant file and serve a further amended statement of claim.

5.    By 28 November 2025, the respondent file and serve a defence to the further amended statement of claim.

6.    By 12 December 2025, the applicant file and serve a reply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The respondent to these proceedings, Mary Kostakidis, is a former newsreader for SBS World News who operates a public account on the social media platform, X. Since 7 October 2023, Ms Kostakidis has posted on X from time to time about the actions of Israel and has commented on the conflict in Palestine.

2    By his amended statement of claim filed in these proceedings, the applicant, Alon Cassuto, alleges that, by making two posts on X (Posts), Ms Kostakidis breached s 18C of the Racial Discrimination Act 1975 (Cth) (RD Act). The first post was made on 4 January 2024 (4 January Post), and the second was made on 13 January 2024 (13 January Post). Mr Cassuto seeks a declaration that the conduct of Ms Kostakidis in making the Posts breached s 18C(1) of the RD Act, as well as orders requiring that Ms Kostakidis apologise, remove the Posts (sought in the originating application only), publish a corrective notice (sought in the amended statement of claim only), and pay Mr Cassuto’s costs.

3    By her interlocutory application filed on 16 May 2025, Ms Kostakidis seeks an order pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) that the whole, or in the alternative, numerous paragraphs, of the amended statement of claim filed by Mr Cassuto on 8 May 2025 be struck out, for a variety of reasons. Ms Kostakidis’s interlocutory application is supported by extensive written submissions, as well as her written submissions in reply and oral submissions. Some of the submissions have force. Some raise issues that can appropriately be addressed at trial. Several are technical in nature and raise issues that are not likely to prejudice Ms Kostakidis’s ability to plead to the case. In these reasons, I have attempted to deal with the substance of all the submissions.

4    For the reasons that follow, I have concluded that Ms Kostakidis’s interlocutory application should be upheld in part. I have accepted some of her arguments concerning the form of particular paragraphs of the amended statement of claim. I have rejected her arguments that the amended statement of claim (or parts thereof) should be struck out on the basis that it fails to disclose a reasonable cause of action. The arguments relied on by Ms Kostakidis in support of that contention are matters properly to be determined at trial.

5    I will make an order striking out certain paragraphs of the amended statement of claim, but will give leave to Mr Cassuto to file a further amended statement of claim in terms that appropriately take into account what is said in these reasons. Hopefully the pleading phase of these proceedings can now be completed without much further disputation, and the matter can proceed to trial.

Legal principles – s 18C of the RD Act

6    Section 18C of appears in Part IIA of the RD Act, which is entitled, “Prohibition of offensive behaviour based on racial hatred”. Section 18C provides as follows:

18C Offensive behaviour because of race, colour or national or ethnic origin

(1)    It is unlawful for a person to do an act, otherwise than in private, if:

(a)    the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)    the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note: Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

(2)    For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)    causes words, sounds, images or writing to be communicated to the public; or

(b)    is done in a public place; or

(c)    is done in the sight or hearing of people who are in a public place.

(3)    In this section:

public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

7    The three elements of the cause of action which Mr Cassuto must prove to be successful in his claim against Ms Kostakidis are, therefore, that:

(a)    the relevant acts were done otherwise than in private;

(b)    the relevant acts were reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(c)    the relevant acts were done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

8    Some of the relevant principles discussed in the authorities on s 18C of the RD Act can be identified briefly as follows.

9    The group of people identified as “the group” in s 18C(1)(b) is the same group of people referred to with the indefinite article in s 18C(1)(a). The group must be identified in some way with reference to the listed characteristics of race, colour or national or ethnic origin: Faruqi v Hanson [2024] FCA 1264 (Faruqi) at [225]-[231].

10    The inquiry called for by the second element is objective, and is concerned with the likely effect of the relevant acts upon a hypothetical person as a member of the relevant group: Faruqi at [224]; Wertheim v Haddad [2025] FCA 720 (Wertheim) at [180]; Bharatiya v Antonio [2022] FCA 428 at [17]. The hypothetical person should generally be a representative member of the group – that is, an ordinary or reasonable member of the group, having regard to the whole group, and without placing weight on overly sensitive or overly robust members of the group: see Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 (Eatock) at 320-1 [250]-[251]; Faruqi at [236]. The words “offend, insult, humiliate or intimidate” are ordinary English words, but, as used in s 18C(1)(a), they are concerned only with conduct that “has profound and serious effects, not to be likened to mere slights”: Wertheim at [183]; Faruqi at [239]; Kaplan v Victoria (No 8) [2023] FCA 1092 (Kaplan) at [506]; Eatock at 325 [268]; Creek v Cairns Post Pty Ltd (2001) 112 FCR 352; [2001] FCA 1007 at 356 [16]. The effects need not be at the extreme level of racial hatred: Wertheim at [183]; Kaplan at [506]. The applicant bears the onus of proof of establishing that one or more of the requisite effects is “reasonably likely”, in the sense that there is “a ‘real’ and ‘not fanciful or remote’ … chance”: Wertheim at [184]; Faruqi at [240]; Eatock at 323 [260].

11    The nature of the inquiry required by the third element was explained by Stewart J in Wertheim in the following terms (at [201]):

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.

12    The composite expression “race, colour or national or ethnic origin” is “intended to offer a broad and non-technical basis for protection against what might loosely be referred to as racial discrimination”: Faruqi at [263]; Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 209-11.

13    The interpretation of the elements of s 18C(1) of the RD Act, and what is required to satisfy them, may be the subject of further submissions at trial. Nothing in these reasons is intended to express any final views about them. However, for the purposes of the present argument, I proceed on the basis that the third element could be satisfied if Mr Cassuto established that acts were done because of the Jewishness of Jewish people, or the Israeli national origin of Israeli citizens, and not only if he established that the acts were done because of the Jewishness of some or all Jewish people in Australia or the Israeli national origin of some or all Israeli citizens in Australia. That appears to have been the approach taken by Stewart J in Wertheim at [211].

14    Ms Kostakidis has not yet filed a defence to the amended statement of claim. On the present application, she does not submit that Mr Cassuto’s cause of action has no prospects of success because her alleged conduct is covered by one of the exemptions created by s 18D of the RD Act, which provides:

Exemptions

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)    in the performance, exhibition or distribution of an artistic work; or

(b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)    in making or publishing:

(i)    a fair and accurate report of any event or matter of public interest; or

(ii)    a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

15    The question of whether one or more of the exemptions may apply therefore does not arise for consideration on Ms Kostakidis’s application to strike out the amended statement of claim. That will be a matter to be determined at trial.

Legal principles – strike out of pleadings

16    Rule 16.21 of the Federal Court Rules permits a party to apply to the Court for an order that all or part of a pleading be struck out if, relevantly, the pleading is evasive or ambiguous; likely to cause prejudice, embarrassment or delay in the proceeding; or fails to disclose a reasonable cause of action.

17    The principles relevant to applications to strike out pleadings pursuant to r 16.21 of the Federal Court Rules are generally settled. For present purposes, it is sufficient to recall the following.

18    In Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15, the Full Court addressed the purpose of pleadings as follows (at [13]):

It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds … However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation … . For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. …

19    Applications to strike out pleadings are generally “directed to the sufficiency of the pleadings or equivalent documentation, as opposed to the underlying prospects of success of the proceedings”: Australian Competition and Consumer Commission v Meta Platforms Inc (No 4) [2025] FCA 1084 at [8], citing Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28. Pleadings should be considered in light of and applied in a way that promotes the overarching purpose of the civil practice and procedure provisions set out in s 37M of the Federal Court of Australia Act 1976 (Cth); that is, to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [101]; Karlsson v Griffith University [2022] FCA 591 at [45].

20    One ground on which pleadings may be struck out (which is one of the grounds on which Ms Kostakidis relies in the present case) is that they fail to disclose a reasonable cause of action. In KTC v David [2022] FCAFC 60 (KTC), Wigney J summarised the position in relation to an application that relies on that ground as follows (at [123]):

A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42]-[43]. A cause of action cannot be struck out merely on the basis that it appears to be weak: Allstate [Life Insurance Co v Australia & New Zealand Banking Group Ltd (1994) 217 ALR 226] at 236.

21    In Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97, the Full Court said (at 337 [42]) that the Court should only exercise its power to strike out pleadings on the ground of a failure to disclose a reasonable cause of action “in a plain and obvious case, where it [is] obvious that no reasonable amendment could cure the alleged defect and there [is] no reasonable question to be tried”. The Full Court further noted that the authorities make clear that a reasonable cause of action is “one with some chance of success having regard to the allegations pleaded, even if weak”.

22    The focus of an application to strike out pleadings is on the capacity of the facts alleged in the pleading to establish the cause of action, rather than a broader-ranging inquiry about whether the action enjoys reasonable prospects of success. The distinction in approach on an application to strike out pleadings and an application for summary dismissal has been discussed, for example, by Mortimer J in Knowles v Commonwealth [2022] FCA 741 at [92]-[96] and by Kenny J in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293; [2011] FCA 1126 at [7]-[18].

Argument that the making of the Posts is incapable of constituting contravention of s 18C of the RD Act

23    Ms Kostakidis seeks that the amended statement of claim, or alternatively [18] and [20] thereof, be struck out pursuant to r 16.21(1)(e) by reason of their failure to disclose a reasonable cause of action. Those are the two paragraphs of the amended statement of claim that identify the two acts which Ms Kostakidis is alleged to have committed and which are said to constitute contraventions of s 18C of the RD Act. They plead as follows:

4 January Post

[18]    On 4 January 2024, the Respondent published a post on her public X Account (4 January Post) which included:

(a)    her own statement which contained the following words:

The Israeli govt getting some of its own medicine.

Israel has started something it can’t finish with this genocide.

#Gaza

(b)    reposted a post from an X Account, @CensoredMen, which contained (First Nasrallah Post):

(i)    the following words:

The leader of Hezbollah, Hassan Nasrallah, tells the Israelis they will never be welcome in the region.

“Here you don’t have a future, from the river to the sea the land of Palestine is for the Palestinian people, and the Palestinian people only.” …

(ii)    and a link to a video of a speech of Mr Nasrallah (Nasrallah Video) which is translated into English, where Mr Nasrallah states:

The number of military vehicles and the number of tanks that are being destroyed every day, the psychological situation, Yediot Ahronot said that one of the results of the Al-Aqsa Flood Battle is that 300,000 new people have sought therapy – have sought psychological therapy. So, you want to stay here, that’s very difficult. Here, it’s going to be very difficult for you. If you want to be secure, if you want to feel secure, you have an American passport, go back to the United States. You have a British passport go back to the UK. Here, you don’t have a future, and from the river to the sea, the land of Palestine is for the Palestinian people and for the Palestinian people only – the resilient Palestinian people, the mujahideen.

…

13 January Post

[20]    On 13 January 2024, the Respondent reposted (13 January Post) a post on her public X Account from an X Account, @richimedhurst, which included (Second Nasrallah Post):

(a)    a statement which contained the following words:

Nasrallah’s message to Israelis:

“If you want to be secure and safe, you have a US passport, go back to the US. You have a British passport, go back to the UK.

Here you don’t have a future. From the river to the sea, the land of Palestine is for the Palestinian people only.”

(b)    and a link to the Nasrallah Video.

24    In her written submissions, Ms Kostakidis characterises the pleadings in these two paragraphs as containing:

… a comment about the Israeli government getting some “of its own medicine” for conducting a genocide in Gaza; a report of a speech by the leader of a Lebanese terrorist organisation suggesting that the Israel army is doing poorly in a conflict and that Israelis with dual citizenship would be well-advised to return to the countries from whom they hold their other citizenship.

25    For the purposes of the present interlocutory application, I proceed on the basis that this is a fair characterisation of [18] and [20] of the amended statement of claim.

26    Ms Kostakidis accepts that the allegations in [18] and [20] of the amended statement of claim satisfy the first element of the cause of action under s 18C of the RD Act. She submits that [18] and [20] of the amended statement of claim, as the paragraphs which identify the alleged conduct of Ms Kostakidis that is relied on as constituting the “acts” alleged to contravene s 18C of the RD Act, do not identify conduct capable of being “acts” of the kind with which s 18C(1) is concerned. On this basis, she submits that the amended statement of claim “fails to disclose a reasonable cause of action”.

27    Ms Kostakidis submits that there is “no logical basis” to conclude that a news reporter, reporting on social media on statements that are adverse to the citizens of a particular country, is motivated by, or acting because of, the race or ethnic or national origin of those citizens. The proposition is said to be logically flawed because it “ignores the inherent occupational requirements of news reporting” and because “[m]any of the most important subjects of news reporting involve groups in some kind of conflict such that spokespeople on both sides of the conflict will say things that are insulting or offensive to persons on the other side of the conflict”.

28    Mr Cassuto’s amended statement of claim does not rely on a “logic” that news reporting on social media of any statement that is adverse to the citizens of a particular country is done because of the race or ethnic or national origin of those citizens. It alleges that Ms Kostakidis’s acts in making the Posts were in fact done because of the race or ethnic or national origin of Jews or Israelis. It is not logically impossible that a particular news reporter, even when acting as a news reporter, might engage in particular acts because of people’s race or ethnic or national origin. Whether there is a basis to draw that conclusion in a particular case will depend on an assessment of the evidence in that particular case. This is not an appropriate basis to strike out [18] and [20] of Mr Cassuto’s amended statement of claim.

29    Insofar as Ms Kostakidis’s position is that, as a matter of statutory construction, s 18C can never apply to the conduct of a news reporter acting as such, or must be read down to exclude certain conduct, she did not identify any existing authority that supports such an argument. That proposition is not so obviously correct that it would be appropriate to strike out [18] and [20] of the amended statement of claim on that basis. It is also to be recalled that s 18D of the RD Act provides for exemptions relating to fair and accurate reporting of events or matters of public interest, and certain fair comments on events or matters of public interest. Ms Kostakidis may plead one or both of those exemptions. Whether either of them applies would then be a matter to be determined at trial. The fact that the RD Act provides for these defences arguably tends to support a view that the fact that conduct occurs in the context of news reporting does not itself take the conduct outside of the scope of s 18C.

30    Whether Ms Kostakidis was relevantly acting as a news reporter in making the 4 January Post and the 13 January Post may be in issue in the proceedings. Mr Cassuto’s amended statement of claim does not assert or admit that she was. That Ms Kostakidis is or was a news reporter may well bear (along with other facts) on the assessment of the “reasons” why she made the Posts. These are factual issues that are appropriately considered at trial.

31    Ms Kostakidis also submits that the amended statement of claim does not explain why a person who feels a personal connection to the State of Israel would be offended or insulted by Ms Kostakidis’s acts in making the 4 January Post and the 13 January Post. However, the amended statement of claim does identify several facts which Mr Cassuto alleges constitute circumstances that should bear on the Court’s assessment of whether there is a reasonable likelihood that ordinary and reasonable members of the identified groups would be offended or insulted. The amended statement of claim is not required to spell out in full Mr Cassuto’s arguments (which may depend on the evidence). I do not accept Ms Kostakidis’s submission that there is “no logical basis” on which Jewish or Israeli persons in Australia could be offended, insulted, humiliated or intimidated by her conduct in making the Posts. Mr Cassuto’s arguments in this respect may ultimately turn out to be weak (that remains to be seen), but I do not consider that [18] and [20] of the amended statement of claim should be struck out on the basis that there is no reasonable basis on which the Posts could offend, insult, humiliate or intimidate members of the identified groups.

32    Ms Kostakidis submits that the construction of the RD Act upon which Mr Cassuto must rely to establish the case that he has put forward is that to criticise Zionist philosophy, the actions of the State of Israel, and the Israeli intelligence service, amounts to racial discrimination. However, Mr Cassuto’s position does not seem to me to rely on any general proposition to that effect. Rather, as I understand it, his pleaded case is that the particular conduct of Ms Kostakidis in making the Posts was done because of the Jewish race or ethnic origin of Jewish people and/or the Israeli national origin of Israeli citizens.

33    Ms Kostakidis draws on Stewart J’s analysis in Wertheim to support her submission that criticism of Israel is not capable of constituting the kind of racial discrimination that Part IIA of the RD Act seeks to prevent. However, it is important to understand the context in which that analysis was undertaken and the particular issue to which it was directed.

34    In Wertheim, Stewart J considered whether certain speeches delivered by an Islamic preacher at a Muslim religious centre, and later published on social media and reported by news media, amounted to racial discrimination pursuant to s 18C of the RD Act. The speeches commented on Jewish people, Zionism and the ongoing conflict in Israel and Gaza.

35    As Stewart J explained at [43], the pleaded case for the applicants in Wertheim used the device of identifying “imputations” to isolate the “stings” in the speeches that were said to cause offence, etc. All of the pleaded imputations were expressed in the form of negative generalised propositions about Jews. Justice Stewart found that 25 of the pleaded imputations were established. He found that three of the speeches each conveyed multiple pleaded imputations, but that the other two speeches (identified as Speech B and Speech D) did not convey any of the pleaded imputations.

36    The paragraphs of the judgment of Stewart J in Wertheim on which Ms Kostakidis relies formed part of his Honour’s assessment of whether the pleaded imputations – all of which referred to “Jews” – were established by the evidence. In his Honour’s consideration of one of the speeches the subject of the claims in Wertheim, Stewart J said (at [107]):

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.

37    Justice Stewart’s focus on whether Mr Haddad would be understood as “saying anything about Jews generally or about all Jews” reflected the fact that his Honour was addressing the pleaded imputation that “Jews control the media and right wing politicians, who are like dogs under a Jewish leash and under their command” (emphasis added).

38    In another passage on which Ms Kostakidis relies, Stewart J said (at [110]):

In the passage relied on by the applicants, Mr Haddad refers to a time in the future when Palestine is “cleansed from the filth of the Zionists” (ST26:18-21). Once again, this would not be understood by the ordinary, reasonable listener to be a reference to Jews generally. The context is the Israeli occupation of Palestine, in particular Gaza. Mr Haddad is speaking to a time in the future when Palestine is no longer occupied. That is not about Jews.

39    Justice Stewart was not, in this passage, stating that a reference to Palestine being “cleansed from the filth of the Zionists” could not be offensive or insulting to Jewish people or to people of Israeli national origin in the sense relevant to s 18C of the RD Act. Nor did his Honour say that such a statement could never constitute a contravention of s 18C because it was about Zionists and not Jews. He did not address that question. Rather, Stewart J was explaining why the statement did not establish the pleaded imputation that “the Jewish people are filthy”.

40    There is another potential distinction between this case and Wertheim, which should be noted. In that case, the applicants had put their case on the basis that the relevant group of people in the second and third elements of the cause of action under s 18C was “Jewish people in Australia”: Wertheim at [164]. Mr Cassuto seeks to advance his case on the basis that there are two relevant groups. Although his current pleading refers to these groups using various different expressions (an issue addressed at [49]-[59] below), the two groups may be identified, in essence, as “Jewish people in Australia” and “Israeli citizens in Australia” (or, perhaps, “persons of Israeli national origin in Australia”). It is necessary to bear in mind that the latter group (however it may ultimately be defined) was not a group that was pleaded in Wertheim.

41    Mr Cassuto accepts that to criticise Israel or the Israeli government does not necessarily amount to anti-Semitic behaviour. However, he submits that the fact that some acts might be characterised as criticisms of Israel, or the Israeli government or defence force, does not inoculate them from constituting (even merely arguably) a contravention of s 18C of the RD Act. His position is that a particular act or statement may be capable of being both a criticism of Israel and anti-Semitic in nature, and “where that line is drawn in relation to a particular statement or a particular act is a difficult and important question, which would be determined … following consideration of evidence, both lay and expert, in the particular circumstances of the case”.

42    I accept this submission, with the caveat that the expression “anti-Semitic” may bear a range of meanings, does not directly reflect the language of s 18C of the RD Act, and may have the potential to distract from the inquiry that is required by the legislation.

43    I accept that there is a clear conceptual distinction between disparagement of Zionism, a philosophy or ideology, and disparagement of Jewish people as a race or ethnic group (or disparagement of people of Israeli national origin). It is clear enough that not all Jewish people or Israeli citizens are Zionists, and not all Jewish people or Israeli citizens support the actions of the State of Israel. It is plainly possible to criticise Zionism, or the actions of Israel, without disparaging Jewish people or Israeli citizens in general.

44    However, having regard to the terms of s 18C(1) of the RD Act, it is not immediately obvious that conduct which consists of speech that is about an ideology or political position, or which amounts to criticism of official action by a country, can never contravene s 18C. It is not an express requirement that, for conduct (including speech) to contravene s 18C, it must be “about” a race, ethnicity or nationality, or people of a race, ethnicity or nationality. It may be arguable that, as a matter of construction, it is necessary to read in a limitation of this kind in some way. However, the contrary position is also at least reasonably arguable.

45    What is expressly required by s 18C(1) is that the acts in question are “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”, and that they were “done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group”. In the case of acts of speech that are critical of a particular philosophy or ideology or state action, the fact that the speech has that character may well make it easier for a court to conclude that the acts were not done because of race, or national or ethnic origin – particularly where any criticism can rationally be understood as motivated by concern about the philosophy or ideology or state action in question.

46    However, it would be naïve not to acknowledge, for example, the possibility that some speech, although taking the form of criticism of a philosophy, ideology or government action, may be intended as a “dog whistle”, and may actually be motivated by, and designed to provoke, hatred of people of a particular race or colour or ethnic or national origin. I do not mean to suggest this as a characterisation of the Posts that are the subject of this action. The point is that there may be reason to be cautious about reading into s 18C additional requirements that do not appear expressly.

47    I do not accept Ms Kostakidis’s submission that it is not reasonably arguable that speech which is directed to criticising the actions of Israel can never contravene s 18C(1) of the RD Act. On the face of the provision, such speech may be unlawful if it is done because of the Jewish racial or ethnic origin or Israeli nationality of the identified group. That is what I understand Mr Cassuto to allege in the present case. Whether he can make good that allegation is appropriately a matter for trial.

48    It follows that I do not accept that the fact that the acts of Ms Kostakidis on which Mr Cassuto seeks to rely involve criticism of the actions of the State or government of Israel leads to the conclusion that Mr Cassuto’s amended statement of claim fails to plead a cause of action that enjoys reasonable prospects of success and should be struck out on that basis.

Alleged failure to identify with clarity the group or groups that are said to be affected by Ms Kostakidis’s actions

49    Ms Kostakidis asserts that [3], [4], [19], [21], [22], [23], [25] and [26] of the amended statement of claim should be struck out for their failure to allege a person or a group of people who are the subject and victims of the offending conduct that Mr Cassuto alleges. She complains that these paragraphs are embarrassing in that she is unable to understand the case she is required to answer. This complaint goes to the form and clarity of Mr Cassuto’s pleading, rather than its substance.

50    The amended statement of claim uses various expressions to describe the groups whom Mr Cassuto alleges were likely to have been offended, insulted, humiliated or intimidated by the making of the 4 January Post and the 13 January Post. In [3] of the amended statement of claim, Mr Cassuto pleads that “[t]here are approximately 115,000 people in Australia who identify as Jewish”. In [4], he refers to “Australian Jews” and pleads that the “vast majority” of them:

(a)    consider themselves to be Zionist;

(b)    feel a personal connection to the State of Israel and the Israeli people; and

(c)    have concern for the safety of Israelis.

51    In [22] and [25] of the amended statement of claim, reference is made to “Australian Jews and/or Israelis in Australia”. In [23], Mr Cassuto alleges that Ms Kostakidis “made the 4 January Post because of the race or national or ethnic origin of Israelis and/or Jews”, and also uses the expression “the race or ethnic origin of Jews or national origin of Israelis”.

52    Ms Kostakidis submits that, because one of the elements required to be established in proving that her conduct was unlawful is that “the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group” (RD Act, s 18C(1)(b)), it is essential that the particular group or characteristic be identified with precision. However, this cannot be taken too far. The kinds of “groups” that may be relevant to the second and third elements of the cause of action created by s 18C are, of their nature, insusceptible of precise definition. The way that groups have been defined in previous cases suggests that a description of a group such as “Jewish people in Australia” or “Israeli citizens in Australia” is not likely to give rise to real difficulty, at least in terms of Ms Kostakidis’s capacity to plead to the allegations.

53    Ms Kostakidis contends that there is confusion created by the various ways Mr Cassuto identifies the people affected by the alleged unlawful conduct set out above, at [50]-[51]. She submits that it is not clear from the amended statement of claim whether the characteristic upon which Mr Cassuto relies is identification as Jewish, identification as Jewish and possession of certain relevant psychological characteristics, being of Israeli national origin, being of Jewish ethnic origin and/or race, or being an Israeli in Australia. As a result of the ambiguity that this varied language creates, Ms Kostakidis says she is unable to know the case she has to meet.

54    In the most extreme form of her argument, Ms Kostakidis submits:

The term “race or national origin or ethnic origin of Israelis and/or Jews” is unlimited in terms of location or nationality. [Ms Kostakidis] does not know whether the alleged reason is Swedishness, as may be the reason in the case of a Jewish person who is ethnically Swedish and a Swedish citizen. Equally, the collection of multiple alternative categories is broad enough to comprehend Arab ethnicity in the case of an Arab person who follows the Jewish faith or an Arab person who is a citizen of Israel.

55    These criticisms are overstated and unrealistic. The only sensible reading of Mr Cassuto’s pleadings is a distributive one: he is relying on the Jewish race and/or the Jewish ethnic origin of Jewish people, and the Israeli citizenship and/or Israeli national origin (which may not be quite the same thing) of Israeli citizens and/or persons of Israeli national origin. While there is still a degree of ambiguity in this, which should be improved, the pleading is nowhere near as problematic as Ms Kostakidis’s submission attempts to suggest.

56    In oral argument, Mr Cassuto confirmed that there are two distinct groups, and only two groups, on which he seeks to rely. He submits that there is no substantive difference between the language of “people of Israeli national origin in Australia”, used to identify the victim group at [19] and [21] of the amended statement of claim, and “Israelis in Australia”, which appears at [22] and [25]. Nor is there a difference, he submits, between expressions such as “people in Australia who identify as Jewish”, “people of Jewish ethnic origin and/or race in Australia” and “Australian Jews”.

57    While I accept that, particularly in light of Mr Cassuto’s explanation, it is clear enough that the amended statement of claim is intended to refer to what are, in essence, two distinct groups (one identified by reference to shared Jewish race or ethnic origin and one identified by reference to shared Israeli national origin), the descriptions used in the amended statement of claim to describe these two groups are not consistent throughout the pleading. The differences in the expressions used will cause them to have different (though overlapping) referents. In the course of oral argument, Mr Cassuto acknowledged this and expressed a willingness to further amend the statement of claim to remove multiple descriptions of the same two groups and instead ensure consistency in the expressions used.

58    The proper identification of the relevant group or groups is an important step in an action under s 18C(1) of the RD Act. Accepting that the limits of any given group will tend to be fuzzy (consistently with the recognition that the concepts used in s 18C(1)(b) are intended to be broad and non-technical), it is nevertheless preferable that the different parts of Mr Cassuto’s pleading refer to what are intended to be the same concepts in terms that are both consistent and relatively clear. Each of the groups relied on should be identified by a reasonably clear description (which can, if necessary, be shortened to a defined term) and the same description of each group (or defined term) should be used at each point in the pleading where it is intended to refer to that same group.

59    As noted above, the authorities suggest it may not be appropriate to strike out paragraphs of a claim that contain defects which can be cured by amendment. I understand that principle to relate, at least primarily, to applications to strike out pleadings on the basis that they fail to disclose a reasonable cause of action. Where the successful objection relates to the form of the pleading then, unless a specific amendment that would cure the defect has been proposed in the course of argument, it seems to me that, if the Court concludes that a claim should not be permitted to proceed on the pleading in its current form, it is appropriate to strike out relevant paragraphs of the pleading while granting the relevant party leave to re-plead.

60    Even though Mr Cassuto has expressed a willingness to amend the statement of claim, the best course is to order that each of [3], [4], [19], [21], [22], [23], [25] and [26] of the amended statement of claim be struck out (and that leave be granted to Mr Cassuto to file a further amended statement of claim). This should not be taken to imply that none of those paragraphs could be re-pleaded in the same terms as part of a further amended statement of claim which, as a whole, addresses the identified defects by clearly identifying the relevant groups consistently (whether by amending or redrafting those paragraphs or by making other amendments).

Want of clarity in relation to pleading of the audiences of the Posts

61    The effect of [19] of the amended statement of claim is to plead that the audience of the 4 January Post was reasonably likely to include people of Israeli national origin in Australia; and/or people of Jewish ethnic origin and/or race in Australia. Although it is not entirely clear, it appears that those two groups are then defined using the defined term “Jewish and/or Israeli audience”. This defined term is then utilised again in [21] when it is pleaded that the audience of the 13 January Post “was reasonably likely to include the Jewish and/or Israeli audience”. It appears that the intended meaning was that the audience of each of the Posts was reasonably like to include at least some people of Israeli national origin in Australia and/or at least some people of Jewish ethnic origin and/or race in Australia; not that the audience of the 13 January Post was likely to have included the very same people of Israeli national origin or Jewish ethnic origin or race as the audience of the 4 January Post. However, this involves a fair amount of supposition, and could be made clearer.

62    The role (if any) which this “audience” (or these “audiences”) play in Mr Cassuto’s case is not clear on the face of the pleading. The pleading of the audience(s) does not appear to connect logically to the pleading of the elements of the cause of action. In [22] and [25], Mr Cassuto alleges that the Posts were reasonably likely to offend, insult, humiliate and/or intimidate Australian Jews and/or Israelis in Australia, not that they were reasonably likely to offend the “Jewish and/or Israeli audience” as defined. And in [23] and [26], Mr Cassuto alleges that Ms Kostakidis made each of the Posts “because of the race or national or ethnic origin of Israelis and/or Jews”, not because of the race or national or ethnic origin of the “Jewish and/or Israeli audience” as defined.

63    In conclusion, I accept that the current pleading in relation to the “audience” of the Posts is ambiguous. Moreover, its relevance to Mr Cassuto’s pleaded cause of action is presently obscure. I consider that [19] and [23] of the amended statement of claim are liable to be struck out for these reasons. Again, Mr Cassuto should have the opportunity to amend his pleading to address these defects (or, alternatively, to omit the paragraphs).

Failure to plead awareness of members of the relevant groups in relation to the Posts

64    Ms Kostakidis also submits that persons of a race or ethnic or national origin can only be affected in a manner relevant to s 18C of the RD Act if they are aware of the Posts and their content.

65    In light of Stewart J’s analysis in Wertheim at [165]-[171], it seems unlikely that it is necessary for Mr Cassuto to establish that the audience of each of the Posts actually included people of Israeli national origin in Australia or Jewish race or ethnic origin in Australia, or that members of those groups were in fact aware of the Posts. Ms Kostakidis submits that that view is in tension with what was said by Mortimer CJ in Kaplan at [513]. I do not intend to foreclose argument about this issue at trial. It is sufficient for the purposes of the present argument to record that I am not satisfied that Mr Cassuto’s cause of action under s 18C of the RD Act has no reasonable prospect of success because of the way he has pleaded (or failed to plead) the awareness of the Posts among members of the relevant groups.

Annexure A to the amended statement of claim and the paragraphs that rely on it

66    Annexure A to the amended statement of claim consists of 45 pages setting out 61 different posts that Ms Kostakidis is alleged to have posted on X at various times since 7 October 2023 (both before and after the 4 January Post and the 13 January Post). Annexure A is first introduced at [16] of the amended statement of claim, which states as follows:

Since the October 7 Attack, the Respondent has posted on X about Israel and/or Jews.

Particulars

A compilation of a sample of the Respondent’s posts on the topic are detailed in Annexure A to this Statement of Claim.

67    That paragraph needs to be read together with [17] of the amended statement of claim. The imputations said to arise from the posts set out in Annexure A are pleaded at [17] as follows:

The Respondent’s posts on X about Israel and/or Jews have:

(a)    spread and endorsed antisemitic conspiracy theories, including that:

(i)    Israel has control of, or significant influence over, the US Congress, the US Government, the US military, the US media, UK politics and the narrative in the Western World (including Australia);

(ii)    Israel assassinated President John F. Kennedy;

(iii)    there was an alliance and collaboration between Zionists and the Nazis; and

(iv)    Israeli Mossad agents were involved in the 9/11 attacks;

(b)    suggested that Zionism is equivalent to Nazism;

(c)    suggested that Israel is a supremacist apartheid state;

(d)    suggested that Israel was complicit in slaughtering its own citizens in the October 7 Attack;

(e)    sought to deny and/or justify the actions of Hamas in perpetrating the October 7 Attack; and

(f)    characterised Israel’s response to the October 7 Attack as being:

(i)    genocidal; and

(ii)    akin to the actions of the Nazis in carrying out the Holocaust.

Particulars

The Applicant refers to the posts in Annexure A. Further particulars may be provided prior to trial.

68    In the context of later paragraphs in the amended statement of claim, the effect of [16] and [17] is to allege (a) that the posts in Annexure A were made by Ms Kostakidis, and (b) that they had certain characteristics. Several subsequent paragraphs of the amended statement of claim – [22], [23], [25] and [26] – then refer to the posts contained in Annexure A (or a subset of them) for the purposes of providing particulars to allegations that the 4 January Post and the 13 January Post were “reasonably likely to offend, insult, humiliate and/or intimidate Australian Jews and/or Israelis in Australia”, and that Ms Kostakidis made the Posts “because of the race or national or ethnic origin of Israelis and/or Jews”.

69    Ms Kostakidis submits that [16] of the amended statement of claim can have no relevance to whether or not her alleged conduct contravenes s 18C of the RD Act and, therefore, should be struck out as not going to establish a cause of action in the proceedings. She further submits that she is embarrassed by not knowing which post in Annexure A is relied upon as the basis for the allegations at [17] of the amended statement of claim.

70    I do not accept Ms Kostakidis’s first argument. As I understand [16] and [17] of the amended statement of claim, Mr Cassuto’s contention is that the fact (if it be established) that Ms Kostakidis made the various posts in Annexure A is capable of contributing circumstantially to an inference regarding her state of mind (and, in particular, relevantly to this case, her attitude towards Jewish people or people of Israeli national origin), which is in turn capable of supporting an inference about the reason or reasons why she made the 4 January Post and the 13 January Post (and, in particular, that she did so because of the Jewish race or ethnic origin of Jews or the Israeli national origin of Israelis). In my view it is clear enough that that is the (only) way in which [16] and [17] are to be understood as contributing to the cause of action on which Mr Cassuto relies.

71    Posts on X by Ms Kostakidis which relate to Israel, and related topics, are rationally capable of bearing on an assessment of the reasons for her making the 4 January Post and the 13 January Post. When regard is had to all of the posts in Annexure A in the context of the evidence at trial, the inferences on which Mr Cassuto seeks to rely may ultimately be weak or strong, but I do not think they are so remote that [16] and [17] are liable to be struck out as simply irrelevant to the cause of action. Whether those inferences should be drawn is, in my view, a matter to be canvassed at trial.

72    In relation to Ms Kostakidis’s second argument, she relies on the following passage from the judgment of Wigney J in KTC at [121], where his Honour identified certain characteristics of a pleading that would make it likely to cause prejudice or embarrassment:

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].

73    Mr Cassuto has annexed to his written submissions further and better particulars to [17] of the amended statement of claim that identify from which posts in Annexure A each of the imputations listed in that paragraph is said to arise. Those further particulars go a substantial way to alleviating any unfairness or embarrassment to Ms Kostakidis, by identifying which of the posts in Annexure A are relied on as contributing to which of the imputations listed in [17]. Ms Kostakidis is not required to plead to the particulars themselves, and it is not unfair to require her to plead to allegations that the identified posts in Annexure A are to the effect described in [17].

74    The function of [17] of the amended statement of claim is effectively to give notice of some of the steps in Mr Cassuto’s intended argument. Given that s 18C(1) of the RD Act requires that the likely effect of conduct be assessed “in all the circumstances” and that the Court determine whether conduct was engaged in “because of” certain reasons, any attempt to articulate those matters must, to some extent, include reference to history and context. An applicant is placed in a position where they must attempt to strike a balance between a pleading that pleads “mere context” in excessive detail, on the one hand, and a pleading that could be criticised as failing to give notice of the applicant’s case, on the other.

75    The inclusion of the posts in Annexure A as particulars (to which Ms Kostakidis is not required to plead), and identifying key alleged characteristics of her posts to be relied upon, was a reasonable way for Mr Cassuto to attempt to strike that balance. I would not strike out [16] and [17] of the amended statement of claim.

76    Ms Kostakidis also submits that [17] of and Annexure A to the amended statement of claim are liable to be struck as being inconsistent with the principles set out by Bowskill J in Quinlan v ERM Power Ltd (2021) 7 QR 377; [2021] QSC 35 (at 400-1 [65]):

It is not sufficient for a plaintiff simply to plead facts somewhere in the statement of claim, later to plead in a conclusory way that a party(ies) had a particular motive, intention or other state of mind, and contend that the other party(ies) is or are on notice, because of the general pleading, of what is to be alleged against it or them. … It is not appropriate to plead a whole lot of facts, and leave it for the other parties to guess which are relied upon to support the pleaded inference, and for the Court ultimately to “reach the correct decision”, irrespective of the parties’ arguments: “[i]t is for the party making the allegations … to identify the case which it seeks to make and to do that clearly and distinctly”. This is all the more essential where the allegations are of fraudulent or serious misconduct, in respect of which more precision is required than in other cases.

(Footnotes omitted.)

77    Having regard to the elements of the cause of action in s 18C of the RD Act, the terms of [17] of the amended statement of claim, and the further particulars that have now been provided by Mr Cassuto, I do not accept that this criticism validly applies to [17]; at least not to the point of making it unfair to expect Ms Kostakidis to plead to the amended statement of claim.

78    Further, contrary to a submission advanced by Ms Kostakidis, I do not think it is unarguable that the posts identified in Annexure A could bear contextually on the inferences to be drawn about Ms Kostakidis’s state of mind when she made the 4 January Post and the 13 January Post, and about the likely reaction of members of the identified groups to the Posts, only if it were established that the content of the posts identified in Annexure A was false.

Suggested requirement to plead awareness of alleged facts contributing to “all the circumstances”

79    Ms Kostakidis also contends that, because Mr Cassuto has not expressly alleged that members of the alleged affected groups were aware of historical events referred to in [5]-[13] of the amended statement of claim, those events cannot permissibly form part of “all the circumstances” as comprehended by s 18C(1)(a) of the RD Act.

80    In Eatock at 322 [257], Bromberg J said that an assessment pursuant to s 18C(1)(a) of whether offence, etc, was “reasonably likely, in all the circumstances” “requires that the social, cultural, historical and other circumstances attending the person or the people in the group be considered”. The task for the Court is to assess the effect on most of the group (Kaplan at [513]) or a hypothetical “ordinary” or “reasonable” representative member of the group (Faruqi at [235]).

81    In the amended statement of claim, there is no express allegation that any members of the group were aware of the historical matters that are pleaded as relevant circumstances. Ms Kostakidis submits that the paragraphs of the pleading which allege those “obscure historical events” are, therefore, incapable of contributing to the cause of action and should be struck out. In response, Mr Cassuto submits that there is no requirement for knowledge in the text of the statute.

82    Given that, at least on one view, what is required is an assessment of the potential effect on a hypothetical ordinary or reasonable member of one of the identified groups, it is at least arguable that it is not necessary for an applicant to prove that any actual member of those groups is aware of the circumstances. That is not to say that evidence about how widely known certain historical events are, either generally or among the relevant groups, may not be relevant to the inquiry required by s 18C(1)(a) of the RD Act. However, it supports a conclusion that Mr Cassuto’s failure to plead awareness of the circumstances pleaded at [5]-[13] of the amended statement of claim does not, of itself, have the result that the alleged historical facts can have no potential bearing on his cause of action, such that those paragraphs should be struck out.

83    None of this is intended to foreclose the potential arguments that may be made at trial about the weight to be given to contextual facts (including because of the failure to plead or establish that particular facts are generally publicly known, or widely known among members of the relevant groups).

No pleading of awareness of facts said to constitute circumstances in which the Posts are to be assessed

84    Ms Kostakidis submits that certain particulars pleaded by Mr Cassuto in [22] and [25] of the amended statement of claim are incapable of bearing on whether members of the identified groups would be offended, insulted, humiliated or intimidated by the Posts. The facts in those particulars include allegations about the actions of Hamas on and after 7 October 2023, the ideology and actions of Hezbollah (of which Mr Nasrallah was the leader), and a rise in anti-Semitism in Australia since 7 October 2023.

85    Whether the content of the Posts and facts falling within the particulars to [22] and [25] ultimately support or contribute to a conclusion that people of Jewish or Israeli race or national or ethnic origin were likely to be offended, etc, is an arguable issue, the resolution of which will depend on the evidence at trial, including the cross-examination of Ms Kostakidis (assuming she gives evidence). I note that Ms Kostakidis is not required to plead to Mr Cassuto’s particulars: see Federal Court Rules, r 16.41 (note 3). There is no prejudice to her in their being articulated in the amended statement of claim. The particulars serve to give some notice of the circumstances on which Mr Cassuto may rely in support of his ultimate submission as to the potential for the Posts to cause offence, etc, to members of the relevant groups. For these reasons, I would not strike out [22] and [25] of the amended statement of claim on this basis.

Pleading using the expression “and/or”

86    Ms Kostakidis complains about the use of the expression “and/or”, particularly in [22] and [25] of the amended statement of claim. While I accept that a pleading may become confusing if too many combinations or permutations are created and are not clearly identified (and that this may, potentially, be an effect of repeatedly using the expression “and/or”), I do not think that criticism can fairly be levelled at [22] and [25] of the amended statement of claim.

87    Two uses of the expression “and/or” appear in the allegations that each of the Posts “was reasonably likely to offend, insult, humiliate and/or intimidate Australian Jews and/or Israelis in Australia”. By using the phrase “offend, insult, humiliate and/or intimidate”, Mr Cassuto has largely picked up the terms of s 18(1)(a) itself, and the expression “and/or” signifies that Mr Cassuto relies upon each of the words (offend, insult, humiliate, intimidate), cumulatively and in the alternative to one another, as what he says is a proper characterisation of the effect of the Posts. That does not create undue confusion or prejudice. In the second use of the expression “and/or”, Mr Cassuto refers to the two groups on which he relies. While the effect is, in one sense, to create a number of permutations – offend Australian Jews, offend Israelis in Australia, insult Australian Jews, insult Israelis in Australia, etc – they are not so complicated or numerous that the pleading is difficult to understand or respond to.

Pleading of evidence rather than material facts or particulars

88    Ms Kostakidis contends that the particulars to each of [4], [5], [9] and [14] of the amended statement of claim pleads evidence rather than material facts or particulars of material facts.

89    I would not strike out those paragraphs. The line between particulars and evidence is not always clear. While it may well be technically correct to say that the matters identified as particulars in [4], [5], [9] and [14] are in the nature of evidence, in the circumstances of this case, that will not cause any real difficulty. Again, Ms Kostakidis is not required to plead to particulars, whether or not they contain references to evidence.

90    Ms Kostakidis also complains about the statement that appears at the end of the particulars to each of [22] and [25] of the amended statement of claim, “Further particulars may be provided prior to trial”. These words are unnecessary, but in the context of the amended statement of claim, they do not cause any real prejudice. Their inclusion does not ensure that Mr Cassuto will be permitted to rely on any particulars identified close to trial, if that would cause Ms Kostakidis prejudice. Nor would striking them out preclude Mr Cassuto from providing and relying on further particulars if it were otherwise appropriate to permit him to do so.

Particulars to the effect that the Posts are “anti-Semitic”

91    Ms Kostakidis also complains about paragraph (h) of the particulars to [22] and [25] of the amended statement of claim, which alleges that the Posts are anti-Semitic, according to one identified definition of anti-Semitism. As noted above, the expression “anti-Semitic” does not appear in s 18C of the RD Act, and it is not apparent that characterisation of particular conduct or statements as “anti-Semitic”, according to one (potentially disputable) definition of that expression, necessarily leads to any particular conclusion about the application of s 18C to that conduct. Of course, the parties may seek to draw on scholarship regarding anti-Semitism in making their arguments about the nature and effect of the acts alleged to contravene s 18C, but this particular is really in the nature of (part of) a legal argument. In a sense, this conclusion means that it is neither here nor there whether paragraph (h) of the particulars to [22] and [25] remains in Mr Cassuto’s pleading, but I would be inclined to strike it out. (Given that I will strike out [22] and [25] for other reasons, this really amounts to saying that paragraph (h) should not be included in Mr Cassuto’s further amended statement of claim.) Again, to be clear, this will not prevent either party from arguing at trial that scholarship which defines or otherwise refers to anti-Semitism is relevant in some way to their arguments about the application of s 18C of the RD Act.

Particulars stating that Mr Cassuto was offended or intimidated by the Posts

92    Paragraph (i) of the particulars to [22] and [25] of the amended statement of claim states that Mr Cassuto himself was offended and insulted by the 4 January Post and the 13 January Post. Ms Kostakidis argues that this is irrelevant to the cause of action relied on by Mr Cassuto. However, evidence as to whether members of a racial group were or were not offended by conduct has been held to be “admissible on, but not determinative of, the issue of contravention”: Jones v Scully (2002) 120 FCR 243; [2002] FCA 1080 at 269 [99]-[100]; see also Faruqi at [241]. While it cannot necessarily be assumed that the reaction of Mr Cassuto, who is the chief executive officer of the Zionist Federation of Australia, is typical of the reaction of people of Jewish race or ethnic origin in Australia or people of Israeli national origin in Australia, I do not accept that the fact pleaded in particular (i) to [22] and [25] is necessarily incapable of bearing on whether members of the pleaded groups were reasonably likely to be offended or insulted by them.

Non-exhaustive pleading of particulars

93    Ms Kostakidis contends that various paragraphs of the amended statement of claim contain particulars which are introduced by the words “inter alia” or “including”. She contends that those particulars should all be struck out, on the basis that the pleading is unfair to her because she cannot know the case that she has to meet. While I generally accept that it is best practice to avoid non-exhaustive pleadings, at least in relation to material facts, that problem is less acute when the non-exhaustive pleading relates only to particulars, and is difficult to avoid when the relevant legislation requires the Court to consider “all the circumstances”. In such a case, non-exhaustively stated particulars serve to identify the central matters on which the applicant seeks to rely as relevant “circumstances”. In the context of this case, I do not accept that the provision of particulars that purport to be non-exhaustive creates real unfairness to Ms Kostakidis or prevents her pleading a defence to the amended statement of claim.

94    If further particulars are said to be required, they can be sought, and if Mr Cassuto were to seek to rely on different matters at trial, the fairness of his doing so would be assessed in light of all the circumstances, including the nature and limits of the particulars previously provided (even if expressed as non-exhaustive).

Conclusions

95    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.

96    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.

97    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.

Associate:

Dated:    9 October 2025