Federal Court of Australia

Toltz v Riemer (No 2) [2026] FCA 640

ORDERS

THE COURT ORDERS THAT:

1.    The words “(and their non-removal)” at [94] of the amended statement of claim be struck out.

2.    The applicants have leave to file a further amended statement of claim in the form provided to the respondents’ solicitors and the Court on 20 March 2026, including the annexure thereto, on the condition that:

(a)    [23A] is deleted;

(b)    [29A] is deleted;

(c)    [30(b)] is deleted;

(d)    [31A] is amended to replace “Since 7 October 2023” with “Between 7 October 2023 and each of the impugned acts referred to below” and the particulars numbered 3 to 23 are deleted;

(e)    [32A] is deleted;

(f)    the particulars to [35] are deleted;

(g)    the proposed amendment to [86] is not included;

(h)    the particulars to [88] are deleted; and

(i)    [94] is amended to delete “(and their non-removal)”.

3.    The costs of the interlocutory application filed on 20 February 2026 be reserved.

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

REASONS FOR JUDGMENT

KENNETT J:

Introduction

1    The applicants seek relief under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) for alleged breaches of s 18C of the Racial Discrimination Act 1975 (Cth) (the RDA) by the first respondent (Dr Riemer). The acts involving the alleged breaches and how the applicants’ claims were articulated were discussed in some detail in Toltz v Riemer [2025] FCA 1385 (Riemer No 1), which was handed down on 14 November 2025. In Riemer No 1 I struck out some specific parts of the applicants’ amended statement of claim (ASOC). I also granted leave to the applicants to file a further amended statement of claim making certain specified amendments together with “any other amendments made necessary by” the striking out of those parts.

2    The applicants filed an interlocutory application on 20 February 2026. It sought leave to file a further amended statement of claim in the form attached to the supporting affidavit of their solicitor. Some of the proposed amendments were opposed by Dr Riemer. The second respondent (the University) raised an issue with one aspect of the proposed amendments.

3    On 20 March 2026 a new version of the proposed further amended statement of claim (PFASOC), including (as an annexure) lengthy particulars that had previously been provided in correspondence, was provided to the respondents and the Court. I have treated this version as embodying the amendments that the applicants seek to make. This is the version to which the parties directed their written submissions (filed by Dr Riemer on 8 April 2026 and by the applicants on 22 April 2026) and their oral arguments on 5 May 2026.

4    For the purpose of determining the interlocutory application, the amendments reflected in the PFASOC can be divided into four categories:

(a)    those which Dr Riemer accepts are within the scope of the leave granted by Riemer No 1;

(b)    those which, while arguably not within the scope of that leave, are uncontroversial;

(c)    those which, Dr Riemer contends, are objectionable because they attempt to reintroduce material that was struck out by Riemer No 1; and

(d)    those which, Dr Riemer contends, introduce new material that should not be permitted.

5    Only categories (c) and (d) require attention in these reasons.

6    For ease of reference, it is useful again to set out s 18C of the RDA. It provides as follows.

(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.

Reintroducing material that was struck out (category (c))

7    There is only one paragraph of the PFASOC expressly identified by Dr Riemer’s written submissions as falling within this category.

8    In Riemer No 1 I struck out ASOC [32], which read as follows.

Hamas’s terrorist acts described above were taken because Hamas’s leadership, commanders, members and operatives in the field believed the men, women and children intended by them to be subjected, and in fact subjected, to those acts:

a.    were Jewish persons or Israeli persons; and

b.    were subjected to those acts because they were or were believed to be in almost all cases Jewish persons or Israeli persons.

9    PFASOC [32A] reads as follows.

It has been widely reported, and/or Jewish and Israeli persons have read and believe on the basis of that information, that Hamas’s terrorist acts described above (see [30]-[31]) were taken because Hamas’s leadership, commanders, members and operatives in the field believed that the men, women and children intended by them to be subjected, and in fact subjected, to those acts:

a.    were Jewish persons or Israeli persons; and

b.    were subjected to those acts because they were or were believed to be in almost all cases Jewish persons or Israeli persons.

10    The subjective motivations of Hamas in carrying out the attack on Israel on 7 October 2023 were not relevant to the tests in s 18C(1)(a) (which focuses on whether an act is likely to offend a person or a group of people, and thus requires attention to the understandings of those people) or s 18C(1)(b) (which focuses on the intentions and motivations of the person who did the act). However, in the context of the present case, the beliefs of Jewish and Israeli persons (they being the group whose race or national origin is the relevant one for the purpose of the applicants’ claim) are clearly relevant to identifying the effect that the material posted by Dr Riemer was likely to have on them. PFASOC [32A] thus replaces an irrelevant allegation with a relevant one, and is directed at a different subject-matter from ASOC [32]. It does not seek to reintroduce material that was struck out.

11    There are two vices in PFASOC [32A], which really arise under Dr Riemer’s category (d) but will be mentioned here. The first is the use of “and/or”. Use of this expression has sometimes been very strongly criticised (see eg Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114 at [85]–[86] (Refshauge J)), although in some contexts (including some other paragraphs of the PFASOC in this case) it is unobjectionable (eg Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 2) [2020] FCA 863 at [40]–[41] (Stewart J)). Here, it is apt to cause confusion. Counsel for the applicants said that he was content for the expression to be replaced by “and”.

12    The second is a lack of precision in the expression “Jewish and Israeli persons”. If this were understood to refer to all Jewish and Israeli persons it would seem to be impossible to prove, and I therefore infer that it was not intended to have that meaning. On the other hand, if it were intended merely to mean more than one Jewish or Israeli person it would be irrelevant. In order to connect coherently with s 18C(1)(a), it is necessary for this allegation to be directed to, and identify, a sufficiently significant proportion of Jewish and Israeli people (excluding those who are over-sensitive or especially sanguine) so as to inform an assessment of whether ordinary or reasonable people in that group were likely to be offended, insulted, humiliated or intimidated by the impugned acts of Dr Riemer. This may well be where the applicants are intending their evidence to go, but the respondents cannot be expected to respond to the paragraph in its current form.

13    For these reasons the inclusion of PFASOC [32A] will not be permitted.

14    Reference was also made in oral submissions to PFASOC [23A]. In Riemer No 1 I struck out certain paragraphs which purported to describe, as a matter of historical fact, propositions about the nature of the first and second intifadas and the subjective motivations of Palestinian people who engaged in violent acts as part of those uprisings. PFASOC [23A] reads as follows.

It has been widely reported and/or Jews and Israelis have read or believe on the basis of that information that:

(a)    The first intifada began with rioting but after the first year it shifted from throwing rocks and Molotov cocktails at Israeli targets to attacking Jews or Israelis with rifles, hand grenades and explosives.

(b)    The second intifada was much more violent than the first. The violence included directly attacking Jewish or Israeli civilian centres, but also attacks on vehicles and civilians through suicide bombings, drive by shootings and rocket attacks. Over 1,000 Jews or Israelis were killed, and thousands of Jews or Israelis were severely injured, in those attacks. During the approximate five-year uprising, more than 4,300 fatalities were registered with a similar ratio of Palestinian to Jewish or Israeli deaths to the first intifada of the second intifada being slightly more than 3 to 1.

(c)    Given the increased violence of the second intifada, this event particularly impacted Australian Jews or Israelis in light of the close identity and familial connection they have with Israel.

Particulars

1.    Applicants refer to and repat [sic] [9.c] above.

(d)    The Palestinians engaging in the violence described above against Jewish persons or Israeli persons did so because they were, or were believed to be, Jewish persons or Israeli persons

15    The text of sub-paragraphs (a), (b) and (d) of PFASOC [23A] are the same as the text of paragraphs that were struck out in Riemer No 1. However, by virtue of the chapeau, this material is now presented in a way that is potentially relevant for the same reason as the material in PFASOC [32A]. It pleads understandings that Jewish and Israeli people are alleged to have about the concept of an “intifada” and thus has a bearing on the likelihood of the use of that term causing offence or intimidation to reasonable members of that group. PFASOC [23A] should not be rejected on the ground that it recycles text that was earlier struck out.

16    However, PFASOC [23A] has the same vices as PFASOC [32A] and should not be permitted for the same reasons.

New material (category (d))

The controversial amendments

17    The aspects of the PFASOC that Dr Riemer identifies as going beyond the scope of any leave are as follows (excluding the paragraphs that I have already discussed above under category (c)).

18    First, ASOC [9] pleads that Israel is a nation state and the national home of and for the Jewish people and its citizens are mostly Jewish people. PFASOC would put these propositions as sub-paragraphs (a) and (b) and add sub-paragraph (c), as follows.

c.    Most Jewish persons in Australia:

1.    feel a personal connectedness with Israel and Israeli people;

2.    have relatives living in Israel; and

3.    have a concern for the safety of Israelis.

19    Second, PFASOC [29A] would add to existing pleadings about the nature and objectives of Hamas by alleging as follows.

It has been widely reported and/or Jews and Israelis have read and believe on the basis of that information and/or the Hamas Covenants referred to above, that Hamas is committed to:

a.    Destroying Israel; and

b.    Killing Jewish persons or Israeli persons.

20    Third, ASOC [30] refers to the events of 7 October 2023 and pleads that more than 1,200 Jewish persons were killed, raped, maimed, sexually abused or tortured on that day. PFASOC [30] would add a sub-paragraph to the effect that this amounted to the greatest loss of Jewish lives on any single day since the Holocaust.

21    Fourth, PFASOC [31A] reads as follows.

Since 7 October 2023, there have been circumstances manifesting a sustained increase in antisemitism or discrimination towards Jews and Israelis in Australia including harm and damage to Jewish or Israeli people and/or their property which inform the reasonably likely reaction of Jewish or Israelis (pl) persons to the impugned conduct set out below.

22    There are 23 paragraphs of particulars to PFASOC [31A], all but one of which refer to specific events in or around Sydney between October 2023 and February 2026. The final particular refers in a much more generalised way to Australian universities having “been an environment in which considerable and frequent antisemitic/antizionist … conduct” has occurred.

23    Fifth, PFASOC [34A] reads (with its particulars) as follows.

Dr Riemer’s status as former President (now Vice President) of the NTEU and/or Head of the Sydney Staff for BDS and/or otherwise as a senior Sydney University academic has at all relevant times:

a.    put him in a position of influence over many Sydney University (and other university) students, academics and others; and

b.    resulted in his conduct being publicly endorsed, emulated and/or followed by, or him acting in concert with, students, academics and others, when undertaking any or all of the impugned acts the subject of this pleading (and substantially similar conduct), including the Call for a Global Intifada act.

Particulars

1.    Solidarity exemplifies a pro-Palestinian student group which frequently supports, reposts, follows and acts in concert with Dr Riemer, including posting Dr Riemer’s content online or publicly acting in concert with him, in respect of conduct which can be said to be offensive, intimidating, insulting and humiliating to Jewish or Israelis (pl) persons (particularly younger Jewish/Israeli students and persons) and at least one reason for the doing of said conduct is race, ethnic or national origin.

2.    Particulars of conduct are annexed to this Further Amended Statement of Claim.

3.    Further particulars may be provided prior to trial.

24    Sixth, PFASOC [35] would add particulars to the existing ASOC [35] in place of two photographs that were previously included without explanation.

25    Seventh, ASOC [39] alleges that Dr Riemer made a specific statement at a meeting. PFASOC [39] would add, as a particular, that Dr Riemer substantially admitted this fact in a radio interview.

26    Eighth:

(a)    ASOC [45] alleges that by March 2024 one of Dr Riemer’s posts had over 42,000 views. PFASOC [45] would add that as at the date of its filing the post has about 42,500 views “and remains accessible”.

(b)    PFASOC [55] would make an equivalent addition to ASOC [55].

(c)    PFASOC [62] would make an equivalent addition to ASOC [62].

(d)    PFASOC [65] would make an equivalent addition to ASOC [65].

(e)    PFASOC [75] would make an equivalent addition to ASOC [75].

(f)    PFASOC [80] would make an equivalent addition to ASOC [80].

(g)    PFASOC [83] would make an equivalent addition to ASOC [83].

27    Ninth, ASOC [86] pleads that Dr Riemer’s making of each of the impugned acts, by conveying the alleged imputations, were reasonably likely in all the circumstances to offend, insult, humiliate or intimidate Jewish or Israeli persons in Australia. PFASOC [86] would add to this paragraph, (relevantly) as follows:

Dr Riemer’s making of each of the impugned acts (and non removal of posts, reposts and article), by conveying any or all of the imputations alleged, and/or by attributing characteristics to Jewish persons or Israeli persons on the basis of their group membership, were reasonably likely in all the circumstances, to offend, insult, humiliate or intimidate Jewish persons or Israeli persons in Australia.

28    Tenth, ASOC [88] pleads that the impugned acts were done or made “because of the race, national or ethnic origin of the people reasonably likely to be offended, insulted, humiliated or intimidate [sic]” and then sets out three considerations which are apparently put forward as supporting that conclusion. PFASOC [88] would add two additional considerations to that list, and incorporate by reference particulars to the final consideration, so that the paragraph would read as follows.

The impugned acts were done or made because of the race, national or ethnic origin of the people reasonably likely to be offended, insulted, humiliated or intimidate (sic) by the posting including because:

a.    References to Zionists are, properly understood, to be a reference to (at least) a majority of Jewish people and Israeli people in Australia;

b.    The subject matter of the impugned acts was related by context to events that were themseves (sic) directly related to the race, ethnic origin or national origin (Jewish and/or Israeli) of the victims of the events of October 7;

c.    The impugned acts were calculated to convey a message about or concerned with the race, ethnic origin or national origin of Jewish or Israeli persons;

d.    The impugned acts were actuated or motivated by considerations of race, ethnic origin or national origin or, in the alternative, race, or ethnic or national origin was otherwise a factor in Dr Riemer doing the impugned acts;

e.    Dr Riemer has a tendency to engage in conduct which does and is intended to offend and/or insult and/or humiliate and/or intimidate Jewish persons and Israeli persons.

Particulars

1.    Particulars of conduct are annexed to this Further Amended Statement of Claim.

29    The particulars to PFASOC [88(e)], contained in the annexure to the document, comprise a list of 173 articles, posts and other public statements by Dr Riemer allegedly made between August 2014 and March 2026.

The amendments generally: leave to amend

30    Dr Riemer makes a global objection to the effect that leave should not be granted to the applicants to reformulate or add to their case again given the time for which the proceeding has been on foot and the prejudice caused to him. Reference was made in submissions to several authorities including Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 (Aon) and Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199. Those cases concerned very different circumstances from the present, but the important point is the principle for which they stand. That is, as it was put in the CLR headnote to Aon (summarising [102]-[103], [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ)):

A party did not have an entitlement to amend a pleading, subject to payment of costs by way of compensation. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs and their effect on the parties, the court and other litigants – the concerns of case management – would assume importance on an application for leave to amend. Relevant matters would also include the nature and importance of the amendment to the party applying, the stage the litigation had reached when the amendment was sought, and the explanation for any delay in applying for amendment.

31    In this Court, that principle now falls to be applied in accordance with s 37M(3) of the Federal Court of Australia Act 1976 (Cth), which requires powers and duties conferred and imposed by the “civil practice and procedure provisions” (which include the Federal Court Rules 2011 (Cth)) to be exercised and carried out “in the way that best promotes the overarching purpose”. The overarching purpose, set out in s 37M(1), is to facilitate the just resolution of disputes according to law and “as quickly, inexpensively and efficiently as possible”. Section 37M(2) sets out “objectives” that come within that purpose, including the efficient disposal of the Court’s caseload; the disposal of proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

32    The following considerations are relevant here.

33    First, while the proceeding has been on foot since June 2025, in a procedural sense it is at an early stage. A defence has not yet been filed. The respondents are therefore not in the position of having taken any concrete step (such as filing pleadings or preparing evidence or submissions) to meet a particular case and then being confronted with a different case. No trial date has been fixed.

34    Second, at the time of filing their interlocutory application the applicants and their advisers had had nearly a year since the termination of their complaint to the Australian Human Rights Commission (the Commission), and more than two years since the first of the impugned acts by Dr Riemer, to think about how their case should be framed. To some extent, their proposed amendments can be seen to have been prompted by Riemer No 1. However, they have clearly gone further than simply fixing gaps in the ASOC created by particular words or paragraphs being struck out. In terms of timing, their delay is partly explained by factors that led to the deadline for the filing of the PFASOC being extended (including the impact of the tragic events at Bondi Beach on 14 December 2025). But to the extent that their case is expanding beyond what was put in the ASOC, there is no apparent reason why the new points could not have been included earlier.

35    Third, in a case commenced under the AHRC Act, it should not be assumed that the prejudice caused by an amendment to a pleading can be remedied by an appropriate costs order. Section 46PSA(2) of the AHRC Act directs the Court to make a costs order in favour of an applicant who is “successful in proceedings on one or more grounds”; and s 46PSA(5) of the AHRC Act expressly forbids an award of costs against an applicant except in the specific circumstances set out in s 46PSA(6). These limitations on the discretion of the Court to make costs orders are significant. In a case where the respondent is an individual, with no obvious advantage in power or resources over the applicants, it is not difficult to imagine circumstances in which limits on the power of the Court to compensate the respondent for costs thrown away would weigh very heavily in the exercise of procedural discretions. However, I am not persuaded that this is (yet) such a case. As noted above, the respondents have not yet had to take any concrete steps that will have to be revisited if the amendments are permitted.

36    Fourth, the scope of the amendments (at least when read with the particulars that accompany them) justifies some concern about the scale of the evidentiary contests that may ensue. In some instances, propositions are put at such a level of generality or abstraction that the prospect of making findings on evidence in the exercise of judicial power is somewhat daunting. For example, the proposition that since 7 October 2023 there have been “circumstances manifesting a sustained increase in antisemitism” in Australia, including (and therefore apparently not limited to) “harm and damage to Jewish or Israeli people and/or their property” (PFASOC [31A]), if not admitted, could lead to a wide-ranging inquiry into facts whose precise relevance to the applicants’ claims might be debatable. (There is an issue concerning the date range of the particulars to this paragraph which is discussed below.) However, it was not submitted that any part of the PFASOC should not be allowed because it raised issues that were not justiciable or not capable of resolution by judicially manageable standards.

37    To the extent that potential arises for large and difficult disputes about what one might call social facts, this to some extent comes with the territory in claims under s 18C of the RDA and is not obviously out of proportion to the importance and complexity of the case. There is no doubt that the issues raised are of significance to the community and of great importance to the parties.

38    Taking these matters into account, I have come to the conclusion that the applicants should not be shut out from making the amendments proposed in the PFASOC by reason of the time that has passed since the proceeding was commenced (or since the impugned acts occurred) or the fact that there have already been two versions of the statement of claim and one contested hearing about its contents. Subject to what follows, the amendments in category (d) should be permitted.

New claims and s 46PO(3) of the AHRC Act

39    The proceeding has been commenced under s 46PO(1) of the AHRC Act, which permits an application to be made to this Court alleging unlawful discrimination where a complaint to the Commission has been terminated by the President. Section 46PO(3) provides as follows:

The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

40    Dr Riemer submitted that, to the extent that the PFASOC seeks to rely on his refusal to remove impugned material from the platforms or websites where it appears as an alleged contravention of s 18C of the RDA (the non-removal point), it goes beyond the scope of the applicants’ complaint to the Commission and contravenes s 46PO(3) of the AHRC Act. This submission applies to the eighth and ninth groups of amendments summarised at [26]-[27] above. It would also seem to call for the deletion of the words “(and their non-removal)” which already appear in ASOC [94] as part of the claim of vicarious liability against the University.

41    The applicants submitted, in part by reference to ASOC [94], that their claim in this Court had been put from the outset as one that included the non-removal of the offending material as part of the conduct in breach of s 18C of the RDA. If that is what was intended to be put by the earlier versions of the statement of claim, it was not put with clarity and Dr Riemer’s legal representatives should not be blamed for failing to appreciate the point. It is true that several paragraphs of the ASOC plead the number of times Dr Riemer’s posts had been viewed up to the date of its filing, but the reasons why this is relevant are not spelled out. This information could also have been arguably relevant, for example, to the assessment of compensation under s 46PO(4) of the AHRC Act. It was the task of the pleader to spell out with clarity the acts and omissions of Dr Riemer that were alleged to constitute unlawful discrimination. To the extent that those acts were intended to include non-removal of the impugned posts, this was not done.

42    In any event that does not matter because, if Dr Riemer’s submission is correct, the non-removal point is one that the Court cannot entertain. The issue goes to the competence of an aspect of the proceeding. (Putting to one side whether the specific conferral of jurisdiction on the Court by s 49B of the AHRC Act displaces the general conferral of jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), it seems clear that the only source of a right to seek compensation (or other coercive orders) for a contravention of the RDA is that conferred by s 46PO(1), which is expressly subject to s 46PO(3).)

43    Neither party took me to the terms of the applicants’ complaint to the Commission against Dr Riemer. It was not tendered on the interlocutory application. Dr Riemer’s submissions asserted that the non-removal point was “not the conduct (or substantially similar to the conduct)” alleged before the AHRC. The applicants did not expressly take issue with this at a factual level, but instead submitted in writing that “[e]ven where the Applicants did not include an allegation of ‘non-removal’ of the applicable impugned acts in the AHRC complaint, there is no jurisdictional hurdle”. The original complaint against Dr Riemer and a letter to the Commission seeking to amend it were both part of the material filed with the originating application in this proceeding and I have taken the liberty of looking at them. It does appear to be correct that the complaint (in its original form and as amended) did not identify the non-removal of offending material as conduct alleged to contravene s 18C of the RDA. (The complaint anticipated the form of the ASOC, in that it recorded the number of times each of Dr Riemer’s posts had been viewed but identified only the making of the posts as involving contraventions of s 18C of the RDA.) I therefore proceed on the basis that the complaint made to the Commission against Dr Riemer did not include the non-removal point.

Authorities on s 46PO(3)

44    In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573 at [38] (Charles), Katz J described s 46PO(3)(a) as proceeding 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”. Here, the non-removal of Dr Riemer’s posts constitutes a distinct series of acts or omissions. The submissions of the applicants therefore focused on s 46PO(3)(b). In Charles, Katz J said of s 46PO(3)(b) (at [39]):

Paragraph (b) … 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.

(Emphasis in original.)

45    His Honour referred to the Explanatory Memorandum for the Bill that inserted s 46PO, which described subparagraph (3)(b) as “intended to cover situations in which different instances of unlawful discrimination arise out of essentially the same factual circumstances” (at [40]) and noted that, during the passage of that Bill, the Government had expressly rejected an Opposition amendment that would have allowed a complainant to amend their complaint after conciliation but before commencing proceedings in the Court (at [42]). The result of the construction that his Honour adopted was that Mr Charles was not able to allege the doing of any act constituting unlawful discrimination after 3 April 1999, which was the date on which he submitted his complaint (at [41], [45]).

46    In Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [44] (Dye), the Full Court (Marshall, Rares and Flick JJ) observed that s 46PO of the AHRC Act was “drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission”. Their Honours continued at [46]:

Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 [(Travers)] at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court “should not be used to launch an application … effectively bypassing the procedures provided by the legislation”: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

47    The appellant in Dye had complained about sexual harassment and discrimination involving “unwelcome conduct of a sexual nature which included” a number of specific incidents (see at [32]). In her proceedings in this Court she sought to make a large number of amendments to her statement of claim, including raising three further allegations of sexual assault by the same person which occurred on different dates. The Full Court held at [50] that this could arguably be regarded as arising out of substantially the same acts, omissions and practices as those addressed in her complaint, in that her complaint had been that that person engaged in a “course of sexual harassment of her in a variety of forms over a period of months”. At [52], their Honours concluded that there was sufficient evidence in support of the proposed amendment to “require a trial to determine whether it had properly been made part of Ms Dye’s allegation of unlawful discrimination within the meaning of s 46PO(3)”. I take this to mean that their Honours did not think it possible to decide, on an interlocutory basis, whether or not the further allegations were sufficiently related to the matters alleged in her complaint to come within s 46PO(3)(b) of the AHRC Act.

48    Reference should also be made to three other single Judge decisions on s 46PO(3) of the AHRC Act which were referred to in the submissions.

49    In Travers, the respondent sought summary dismissal of the proceeding on grounds including that the discrimination alleged was not the same as, or the same in substance as, that which was the subject of the terminated complaint. The discrimination alleged in the complaint was denial (by two named alleged perpetrators) of access to a disabled toilet at a school. The complaint referred to a meeting on a particular date but also suggested that the alleged perpetrators had had a particular attitude to the applicant since her arrival at the school (see at [5]). The affidavit in support of the application filed in the Court alleged earlier requests for access to the disabled toilet and their refusal (see at [6]).

50    At [8], in a passage that was cited in Dye, Lehane J observed that the terms of s 46PO(3) suggested “a degree of flexibility” and that the complaint should not be construed as if it were a pleading. The respondent’s argument was rejected at [9]-[10] on the basis that the initial letter of complaint, while it referred to a particular meeting, also rehearsed the matters discussed at that meeting and the background to it. Accordingly, to the extent that the applicant’s evidence in the proceedings covered earlier events, it was covering “substantially the same ground” as references in the complaint to the basis on which the alleged perpetrators were said to be aware of the applicant’s needs.

51    However, his Honour continued at [10]:

…If by that it was intended to raise, as a separate matter of complaint, refusals earlier than that originally complained of, it may be that the applicant would not, at the hearing, be permitted to do so. But the proceeding is not, in my view, to be wholly dismissed because – if it is the case – the application, though alleging the same discrimination as that originally complained of, also alleges similar discrimination at an earlier time. An affidavit in support of an application cannot, as a pleading can, be struck out in part. Equally, there may be a question, if at trial the applicant seeks to rely on certain of the evidence she has filed, of the relevance of that evidence; but that is a matter to be dealt with at trial, not on the present motion.

52    It is apparent, therefore, that Lehane J was not deciding definitively whether a complaint about earlier, similar, refusals of access could properly form part of the applicant’s case before the Court. Rather, his Honour merely held (clearly correctly, with respect) that reference to earlier events in the affidavit in support of the application was not a basis for dismissing the entire proceeding.

53    In Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 (Marshall J) (Haile-Michael), an application to strike out part of the applicants’ pleading based on s 46PO(3) was rejected. It appears from his Honour’s reasons at [14]-[16] that the objection was that some of the applicants sought to advance claims relating to “stopping and questioning” which they had not included in a complaint to the Commission but other applicants had raised. His Honour said at [17]-[19] (citing Charles and Dye):

…The allegations made by these applicants in respect to “stopping and questioning” are of the same nature as the allegations made by other applicants in the Amended Complaint. The terms of s 46PO(3) do not require complete symmetry between allegations made in an application before the Court and those raised in a terminated complaint. Further examples of “stopping and questioning” by some applicants of a similar nature to those raised by others will be readily seen as arising out of substantially the same acts or practices the subject of the terminated complaint. It does not appear from the face of the two relevant documents that the facts alleged are different in substance …

Applying Dye, I consider that the claims made by the particular applicants … are within the ambit of the dispute created by the terminated complaint or at least so in substance, and may be properly the subject of the pleading of the applicants.

54    The applicants also referred to Leach v Burston [2022] FCA 87 at [58] (Leach), where Halley J said:

Section 46PO(3) permits reliance on facts that differ to a “certain extent” from those alleged in the terminated complaint: Fuji Xerox at [41]. The section does not require “complete symmetry” between the allegations in an application to the Court and allegations made in a terminated complaint: Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 at [17] (Marshall J). Further, the section does not preclude reliance on more specific allegations, including identification of those involved in the conduct, than those made in general terms in a terminated complaint: Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784 at [77]-[87] (Collier J). The section allows a new allegation or new allegations about the same incident to be advanced before the Court: Dye v Commonwealth Securities Limited [2010] FCA 720 at [106] (Katzmann J) (Dye FCA).

55    His Honour also observed at [72] (citing Charles) that it appeared to be settled that any acts, omissions or practices “must have occurred or existed as at the date on which the terminated complaint was first made to the Commission”.

56    The application before his Honour was for summary dismissal of the originating application or strike-out of parts of the points of claim including on grounds arising from s 46PO. The applicant in her complaint had alleged sexual harassment (within the meaning of s 28B(2) of the Sex Discrimination Act 1984 (Cth) (SDA)) and direct and indirect sex discrimination (in contravention of s 14(2) of the SDA), on the basis of three specific incidents and what was described as an “inappropriate sexual environment”, and victimisation (in breach of s 94 of the SDA) because she had asserted her rights (see at [16]-[19]). By her originating application (as amended), the applicant abandoned the claims under ss 14 and 28B of the SDA but relied on the same incidents as alleged breaches of other provisions of that Act (see at [27]-[31]).

57    His Honour considered it “reasonably arguable” that the applicant had not extended her claim before the Court beyond the “acts, omissions or practices” that were the subject of her complaint to the Commission, and that a construction which treated the statutory elements of unlawful discrimination as part of those “acts, omissions or practices” would render s 43PO(3)(b) inutile (at [73]-[74]) (which, with respect, seems to align with what was said in Charles at [39] (quoted above)). He therefore concluded that it was not appropriate to determine the issue on an interlocutory application (at [3]). The proceeding was discontinued on 22 April 2024, without this point having been finally determined.

58    Finally, the applicants referred in this connection to Jones v Toben [2002] FCA 1150 at [75] (Branson J) (Jones) where her Honour, in the course of explaining why placing material on a website was an act not done in private for the purposes of s 18C(2), described such an act as:

…an act of publication, or perhaps more accurately an act which causes repeated publication, in that it allows individuals who access the website with a browser to read that text and see those graphics.

59    The operation of s 46PO(3) was not in issue in Jones, and it is apparent from the phrase “perhaps more accurately” that this was not a point that Branson J considered it necessary to decide. Additionally, it will be noted that her Honour described placing material on a website as “an act” which “causes” repeated publications (not, eg, as a series of acts).

Consideration

60    In the light of Dye, two important points need to be kept in mind in construing s 46PO(3) of the AHRC Act.

(a)    One is that it allows some “ambit” for additional conduct to constitute unlawful discrimination and must be understood in a way that takes into account the lack of formality (and the frequent absence of lawyers) in proceedings before the Commission. In this vein, also, s 46PR provides that (subject to Chapter III of the Constitution) the Court is not bound by technicalities or legal forms (noted in Dye at [48]).

(b)    The other important point, however, is that s 46PO(3) is an “important constraint” which is designed to prevent an applicant from bypassing the Commission and launching a complaint for the first time before the Court. Thus, the Court in Dye also observed at [48] that s 46PR did not provide a basis for ignoring the “substantive directions” in s 46PO(3). As counsel for Dr Riemer submitted (reflecting terminology used in Dye at [43]), s 46PO(3) inserts the Commission as a “filter” through which complaints must pass before they can come before the Court (see also Grigor-Scott v Jones [2008] FCAFC 14;168 FCR 450 at [18] (Emmett, Lander and Tracey JJ) and Gao v Macquarie Bank Limited [2026] FCA 289 at [34]-[38] (Abraham J)).

61    Although I have attempted to summarise what was actually decided in each of the cases referred to above, they provide only very limited guidance as to how s 46PO(3)(b) balances these considerations. Haile-Michael stands firmly for the view that the provision does not prevent new allegations of unlawful discrimination from being based on the same conduct as was the subject of the terminated complaint or other examples of such conduct. Dye, Travers and Leach appear to point in the same direction; however, in each of these cases it was not considered appropriate to decide the point definitively.

62    In Charles, s 46PO(3)(b) was treated as leaving no room for any allegation based on events that occurred after the making of the complaint. This proposition was treated as settled in Leach, although it needs to be read with the observation in Dye at [47] that the ambit of the complaint should be ascertained from the shape it had assumed by the time of its termination. One salient point that seems to emerge from the cases, therefore, is that s 46PO(3) does not allow a claim of unlawful discrimination to expand so as to cover conduct that happened after the termination of the complaint. This accords with what Katz J referred to in Charles at [43] as a “longstanding judicial approach to litigation” that prevents a moving party from relying on causes of action that accrue after the commencement of the proceeding. There is clearly something unsatisfactory in expecting a respondent to litigate in circumstances where the potential findings of wrongdoing and exposure to liability for damages expand with the time the litigation takes to finalise. The result is that the non-removal point is precluded from being run at least in so far as it complains about the failure to remove impugned posts after the termination of the complaint.

63    Further, while there are several observations in the cases supporting the view that s 46PO(3)(b) permits an applicant to plead further instances of the type of conduct that was the subject of the terminated complaint, none of the cases discussed above appears to grapple with an attempt to plead different but related or consequential conduct. However, in Cumaiyi v Northern Territory of Australia [2020] FCA 1299 at [18]-[21], White J described the effect of the explanation of s 46PO(3)(b) given in Charles as follows.

It means on my understanding that, to come within subpara (3)(a), the pleaded claim must, at least in substance, be in respect of the same conduct which was the subject of complaint to the AHRC. The required identity must exist in the conduct alleged. An identity between the kind of conduct alleged and the kind of conduct about which the complaint was made is insufficient if the acts, omissions, or practices occurred at materially different times. This was the position stated by Katzmann J in Dye v Commonwealth Securities Ltd [2010] FCA 720 at first instance, at [105]:

To fall within s 46PO(3) it is not enough that an act is similar in kind to the acts complained of in the terminated complaint. Nor is it sufficient that the act is alleged to be the act of the same individual. A new incident is different - not the same or substantially the same - conduct …

That view of s 46PO(3) was not disturbed on the appeal in Dye.

Were the position otherwise, proceedings in this Court or in the FCC could require consideration of conduct which has not been the subject of any assessment in the AHRC.

64    Bromwich J cited this passage with apparent approval in Hanson v Burston [2022] FCA 1234 at [97]. It suggests that the flexibility in s 46PO(3) allows the inclusion of further instances of the same kind of conduct as that which was canvassed in the terminated complaint, but not of additional conduct that is of a different nature (even though it might be related or even consequential).

65    This, in my view, is the preferable understanding of s 46PO(3)(b). It best accords with the text of the paragraph. What is expressly limited by s 46PO(3) is “[t]he unlawful discrimination alleged in the application”; that is, the contraventions of relevant statutory provisions that are alleged. Paragraph (b) is satisfied if those contraventions:

    “arise out of”

    “acts, omissions or practices” (ie, specified conduct) that are

    “the same (or substantially the same)” as those that were the subject of the terminated complaint.

66    That language does not naturally extend to acts, omissions or practices that are connected to, or flowed from, those which were the subject of the complaint but are not of the same character. To extend the statutory language in that way would be inconsistent with the purpose, recognised in Dye at [43], of ensuring that the cause of action conferred by s 46PO(1) corresponds with the complaint terminated by the Commission.

67    To the extent that Dr Riemer’s refusal or failure to remove each of the posts about which complaint has been made constitutes a distinct “act” (and noting that, under s 3(3) of the RDA, an “act” includes a refusal or failure to do an act), a finding about that act for the purposes of applying s 18C of the RDA requires independent consideration at least of the reasons why it was done. It may well be likely, but cannot be assumed, that Dr Riemer’s reason for not removing a post on any given day was the same as his reason for making the post in the first place. Significant areas of factual inquiry would thus arise which were not in play before the Commission and as to which there was therefore no opportunity to conciliate. While the non-removal was connected to the making of the impugned posts, therefore, it was not “the same” or “substantially the same” act, omission or practice within the meaning of s 46PO(3) of the AHRC Act.

68    It will be noted that in the decisions discussed above, apart from Charles and Haile-Michael, the Court stopped short of expressing a definitive view as to whether relevant allegations were permitted to be advanced by s 46PO(3)(b). In Travers, that was because a negative answer to the question could not have justified the order that the respondents were seeking. Otherwise, it reflects an appropriate caution about deciding any issue of substance at an interlocutory stage when there is a possibility that evidence at trial might shed further light on it. Here, however, the point arises as an issue of pleading and there is no real dispute about the contents of the terminated complaint. It was not submitted that I should allow the amendments raising the non-removal point on the basis that the evidence on the final hearing might be relevant to whether or not s 46PO(3)(b) was satisfied. Section 46PO(3) goes to the competency of part of the proceeding and therefore raises what is in principle a threshold issue. For the reasons set out above, I have come to the view that s 46PO(3) stands in the way of the non-removal point being advanced as an allegation of further acts of unlawful discrimination in the present case. The proposed amendment in PFASOC [86] should therefore not be permitted. However, I will allow the amendments in the eighth group identified above (which update the number of times various posts have been viewed) to be made, as these merely update figures which were already part of the pleading and may potentially be relevant to other issues.

Events after the impugned conduct

69    PFASOC [31A], which is set out above, alleges that there have been “circumstances manifesting” a sustained increase in antisemitism in Australia since 7 October 2023. At first blush, this paragraph appears to seek a finding that there has been an increase in antisemitism in Australia. That is an exercise on which a court would be slow to embark, and which (as an objective fact) would be of doubtful relevance. I therefore understand this paragraph to be seeking to establish that a series of specific events and circumstances has occurred which make it reasonable for Jewish and Israeli people to perceive or fear an increase in the incidence or intensity of antisemitic sentiment and thus “inform the reasonably likely reaction” of Jewish and/or Israeli persons to the impugned conduct of Dr Riemer.

70    The difficulty that arises in connection with PFASOC [31A] is that it is open-ended as to time. The particulars to the paragraph confirm that it is intended to be read in that way. Only the first two particulars refer to events that occurred before the last instance of impugned conduct on the part of Dr Riemer. The particulars numbered 3 to 22 refer to later events, the last of which is said to have happened on February 2026. Particular 23 refers to the “environment” at “Australian universities” since 7 October 2023 and is far too general to be useful as a particular. It should not be permitted for that reason alone.

71    My conclusion above in relation to the non-removal point has the consequence that the only conduct of Dr Riemer alleged to have contravened s 18C of the RDA is his making of the impugned posts. On that footing, PFASOC [31A] cannot be permitted in its current form. Section 18C(1) of the RDA makes it unlawful to “do an act, otherwise than in private” where (a) “the act is reasonably likely, in all the circumstances,” to have particular effects on people and (b) the act “is done” for a particular reason. It has often been observed that subparagraph (a) involves an objective inquiry into likelihood. It is also clear, in the context of the chapeau of the subsection and subparagraph (b), that the inquiry is to be directed to the character of the act – the likelihood of it causing offence in all the circumstances – at the time it is done. Parliament is unlikely to have intended that an act which had no real capacity to offend when it was done would be found to contravene s 18C because later events gave it a different significance. (This does not deny the relevance of evidence of actual offence, insult, humiliation or intimidation experienced as a result of the act after it has happened. However, the relevance of such evidence is the light that it sheds on whether the act when it was done had the character of being “likely” to cause these effects.) Antisemitic acts that have occurred in Australia since October 2023 (which, it can be accepted, might well have affected the sensitivity of reasonable members of the Jewish community to commentary that could be construed as an attack on their community or an incitement to hatred) therefore have a bearing on the issues in the proceeding only to the extent that they were matters of public knowledge at the time the impugned acts occurred.

72    PFASOC [31A] will therefore be allowed only in an amended form.

Other particular amendments

PFASOC [9(c)]

73    PFASOC [9(c)] is resisted on the grounds that it is of marginal relevance to the facts in issue and is problematic because it suggests a monolithic Jewish experience or viewpoint. I do not accept these submissions. First, establishing the perspective of Jewish people in Australia (or a significant proportion of them) concerning Israel is an important aspect of the applicants’ attempt to establish that what are ostensibly anti-Israel or anti-Zionist statements contravene s 18C of the RDA. Ultimately this argument may or may not work; however, the proposition that Jewish people feel a connection with Israel is far from marginal to it. Secondly, potential difficulties in proving the factual propositions in [9(c)] are not a reason why it should be excluded from the applicants’ pleading.

PFASOC [29A]

74    PFASOC [29A] introduces the objectives of Hamas as an aspect of the understandings of Jewish and Israeli people. On this basis it is potentially relevant, in the same way as [23A] and [32A] (which are discussed above at [14]-[16] and [9]-[13] respectively), to the likelihood of the impugned statements by Dr Riemer to cause insult, offence, humiliation or intimidation to members of the “group” that is in issue here. However, it has the same vices as those paragraphs and should not be permitted for those reasons.

PFASOC [30]

75    ASOC [25] alleges that on 7 October 2023 Hamas members illegally invaded Israel and killed, maimed, sexually abused and tortured more than 1,200 people. PFASOC [30] would put the same proposition as sub-paragraph (a) and insert, as sub-paragraph (b), the proposition that this was the greatest loss of Jewish life on a single day since the Holocaust. Dr Riemer submits that this is an unnecessary expansion of the evidentiary landscape without forensic utility. I agree. The proposition is not self-evidently true, although as a matter of common knowledge it seems very likely to be true if it is intended to refer to lives lost to violence. However, Dr Riemer cannot be expected to admit the proposition if he does not know it to be true, and its proof as a matter of objective fact will take up time and resources. Meanwhile, its relevance to the facts in issue seems at best peripheral. The scale and horror of the events of 7 October 2023 are well known and their significance to Jewish and Israeli people is not difficult to appreciate. This amendment should not be allowed.

PFASOC [34A]

76    PFASOC [34A] is a reformulation of ASOC [34], which I struck out for obscurity in Riemer No 1. It now pleads that Dr Riemer’s status as an official in the National Tertiary Education Union, as head of a group referred to as the Sydney Staff for BDS and/or as a senior academic has:

(a)    put him in a position of influence over many students, academics and others; and

(b)    resulted in his conduct being publicly endorsed, emulated and followed by others.

77    This allegation (which in its terms is clearly relevant to the issues that arise under s 18C(1)(a) of the RDA) is particularised as follows.

1.    Solidarity exemplifies a pro-Palestinian student group which frequently supports, reposts, follows and acts in concert with Dr Riemer, including posting Dr Riemer’s content online or publicly acting in concert with him, in respect of conduct which can be said to be offensive, intimidating, insulting and humiliating to Jewish or Israelis (pl) persons (particularly younger Jewish/Israeli students and persons) and at least one reason for the doing of said conduct is race, ethnic or national origin.

2.    Particulars of conduct are annexed to this Further Amended Statement of Claim.

3.    Further particulars may be provided prior to trial.

78    Dr Riemer submitted, first, that the online conduct of Solidarity is not part of his conduct or the conduct which was the subject of the terminated complaint, and the paragraph therefore does not disclose a cause of action. I reject this submission. PFASOC [34A] clearly does allege a fact (Dr Riemer’s influence over others) that is relevant to whether Dr Riemer’s conduct came within s 18C(1)(a). The particulars (to which, strictly speaking, Dr Riemer does not need to plead) explain how that fact is intended to be established: ie, by reference to how the student group known as Solidarity follows his lead. The paragraph does not purport to make any acts of Solidarity a separate subject of complaint.

79    Secondly, Dr Riemer observed that the particulars which are annexed consist of a list of 85 social media posts, many of which are not accessible at the links provided and which are (he submitted) not relevant to any cause of action against him. He also notes that the posts numbered 20 to 85 in this list post-date the impugned conduct.

80    It is not useful at this stage of the proceeding to engage in a line-by-line analysis of social media posts which are said to support an allegation in the pleading. To the extent that the posts shed light on the extent to which (at the time of the impugned conduct) Dr Riemer’s statements influenced the acts of Solidarity, they are at least potentially relevant to establishing that his conduct came within s 18C(1)(a). If particular posts are no longer accessible, copies will obviously need to be provided to Dr Riemer’s legal representatives before they can be tendered and relied on.

81    Thirdly, Dr Riemer took issue with the foreshadowing of further particulars. (A similar complaint is also made about PFASOC [37].) It is not uncommon for the way an allegation is particularised to change during the course of a case, including (sometimes) quite late in the proceedings. To the extent that provision of further particulars widens the scope of the case that the other party has to meet it may, depending on timing, lead to unfairness if not controlled by appropriate orders. The inclusion of language along the lines of “[f]urther particulars may be provided prior to trial” should not be understood to confer unlimited liberty to add particulars to a pleading.

PFASOC [35]

82    PFASOC [35] reads as follows.

In Dr Riemer’s letter to the Vice Chancellor of Sydney University, Mark Scott, which is annexed to the Global Intifada X Post, Dr Riemer protests a decision by Mark Scott to ban an intended Solidarity student meeting (that in any event ensued) on 1 November 2023 which was to support a global intifada as set out in the headline ‘Palestine: the case for a global intifada’.

(Emphasis in original.)

83    The amendment indicated by the underlining is unexceptionable. However, PFASOC [35] would also add particulars, with which Dr Riemer took issue. The particulars describe how “the advertisements” were effected (ie, online and by way of physical posters, allegedly put up by Solidarity members, which remained visible for the rest of the 2023 academic year).

84    These particulars do not connect in any clear way with the subject matter of the paragraph to which they purport to relate (which makes no mention of, let alone complaint about, “advertisements”). I do not read them (as Dr Riemer seemed to suggest) as a further attempt to make Dr Riemer responsible for the conduct of Solidarity. However, their relevance is not apparent. They should not be allowed to be added in their current form.

PFASOC [39]

85    ASOC [39] alleges that Dr Riemer made a particular statement at the “Solidarity meeting” on 1 November 2023. PFASOC [39] would add, as a particular, a reference to what is said to be a “[s]ubstantial admission” made by Dr Riemer during a radio interview. Dr Riemer suggested that this is a reference to evidence and not appropriate as a particular. There is force in that submission; however, the addition causes no prejudice and need not be the subject of any order.

PFASOC [88]: tendency

86    Dr Riemer does not resist the inclusion of the two additional subparagraphs in PFASOC [88] (set out above at [28]), except on the ground that they are new and unsolicited (which I have dealt with above). However, he takes issue with the way the “tendency” in subparagraph (e) is formulated and with the contents of the annexure which is sought to be incorporated by reference as “particulars” to the allegation.

87    The formulation of the alleged tendency in [88(e)] is part of the existing pleading and there is no application before the Court to strike it out.

88    The material annexed as “particulars” to [88(e)] is described as particulars of “conduct”, which suggests it is intended to provide further specification of the “conduct” in which Dr Riemer has a “tendency” to “engage”. The annexure lists 173 articles, posts or statements by Dr Riemer, with relevant URLs and, in a column headed “conduct”, descriptions which I take to be the pleaders’ summary of the nature of each example of conduct. Dr Riemer describes this, with some justification, as an “emotive and editorialised narrative compendium of material, replete with submissions and evaluative commentary”. At best it furnishes examples, rather than particulars, of the type of conduct in which Dr Riemer is alleged to have a tendency to engage.

89    Tendency evidence about Dr Riemer may have a role in proving his intentions or state of mind at the time of his impugned conduct, and may therefore be relevant to s 18C(1)(b) of the RDA. It is not relevant to s 18C(1)(a). I do not consider that such evidence must necessarily be confined to things said or done before the impugned acts and I did not understand counsel for Dr Riemer to contend for such a limitation. However, on any view it is unnecessary, in a statement of claim, to give notice of an intention to rely on tendency evidence and a catalogue of sources from which such evidence might be drawn. Here, the list of sources is so large and replete with commentary that its inclusion, even as particulars which the respondent is not obliged to traverse, is burdensome and potentially prejudicial. The particulars to PFASOC [88(e)] should be deleted.

Disposition

90    Leave will be granted to file the PFASOC with deletions in accordance with my conclusions above.

91    My conclusion on the non-removal point has the consequence that the words “(and their non-removal)”, which currently appear in ASOC [94] as part of the vicarious liability case against the University, should not remain as part of the pleading. While these words were not the subject of any formal application, Dr Riemer did submit in writing that they should be struck out. The applicants pointed to ASOC [94] as an indication that the non-removal point was already part of the case but did not submit that they could properly remain if the non-removal point was not part of their case. I will order them to be struck out.

Associate:

Dated:    26 May 2026

SCHEDULE OF PARTIES