Court asked to toss racial discrimination claim against journalist

The Federal Court was asked to strike out all or most of a statement of claim that alleged an SBS newsreader had breached the Racial Discrimination Act.

The Zionist Federation of Australia (ZFA) accused journalist Mary Kostakidis of publishing posts on X that allegedly “spread and endorsed anti-Semitic conspiracy theories”, suggested Zionism was equivalent to Nazism, and Israel was “a supremist apartheid state”.

In one particular post last January, Kostakidis wrote that the Israeli government “started something it can’t finish with this genocide” and linked to a video of a speech from Hassan Nasrallah, leader of Hezbollah, who said the land was “for Palestinian people”.

Appearing in the Federal Court, Kostakidis’ counsel, Stephen Keim SC, pressed to have the statement of claim struck out. While it was not an application for summary dismissal, Justice Stephen McDonald said the ZFA may be unable to replead if Kostakidis was successful.

“In our primary submissions, we argue the reporting of statements by a well-known spokesperson for a party in a major regional conflict is an essential part of news reporting … [and an] ordinary and reasonable person understands the function of news reporting,” he said.

Further, Keim said the statement of claim was unable to contribute to the cause of action because it “fails to disclose a basis or element of the cause of action for which it is relied upon in the pleading as a whole”.

In support of Kostakidis’ case, the court was taken to Justice Angus Stewart’s decision in Wertheim v Haddad, in which he found the ordinary and reasonable viewer “would understand that not all Jews are Zionists or support the actions of Israel in Gaza” and political criticism of Israel “is not by its nature criticism of Jews in general”.

By looking at the posts through the lens of a newsworthy event, Keim said it “remains a proper basis to strike out” the impugned conduct.

“Justice Stewart’s observations also make it clear the standard parts of the case pleaded are incapable of being anti-Semitic and incapable of giving rise to the offence and other emotional reactions,” Keim said.

Keim also claimed the ZFA’s claim failed to clarify the group or groups said to be impacted by Kostakidis’ alleged conduct.

Kostakidis argued it was unclear whether the reference to “Australian Jews” was restricted to Australian citizens, or if identifying as Jewish was “determinative of being an Australian Jew”. Further, Keim said people of Jewish ethnic origin or race “[carry] even more ambiguity”.

In response, ZFA’s counsel, Michael Borsky KC, said the proceedings were not appropriate to “seriously entertain” a strike-out application, particularly because the ZFA’s legal team has “sought to answer in writing each and every one of [Kostakidis’] complaints”.

Borsky said that despite there being no obligation to do so, ZFA provided a post history it would rely on at cross-examination.

“It can’t be accepted, certainly not in support of a strike-out application … [that] a history of posts which we will seek to persuade Your Honour of – include equating Zionism with Nazism and accusing Israel of being an apartheid state, and spreading what we alleged are anti-Semitic conspiracy theories – it can’t be seriously suggested that couldn’t be probative of Your Honour’s consideration,” he said.

Referring to Justice Stewart’s decision, Borsky said it was a “matter of some subtlety and delicacy” because reasonable minds may “differ”.

“Cassuto, my client, would, if it became relevant at the trial, would challenge the proposition. It is at its most, in this proceeding, an issue for trial, not a basis for a striking-out claim,” Borsky said.

Justice McDonald has reserved judgment.