Court Hears Discrimination Case: Pianist vs. Melbourne Symphony Orchestra

The Federal Court is hearing a discrimination case brought by classical pianist Jayson Gillham against the Melbourne Symphony Orchestra (MSO).

Gillham alleges the MSO unlawfully discriminated against him based on his political beliefs, leading to the cancellation of a concert he was contracted to perform in August 2024. The MSO defends the claim, arguing that Gillham deliberately misled the organization by not disclosing his planned comments.

The trial is scheduled to last three weeks, with approximately 20 witnesses called by the MSO.

The Incident

On 11 August 2024, during a recital at the Iwaki Auditorium, Gillham performed a piece titled Witness by composer Connor D’Netto. He introduced the piece by dedicating it to Palestinian journalists killed in Gaza and stated that targeting journalists constitutes a war crime under international law. Gillham said that over 100 Palestinian journalists had been killed.

Following the recital, the MSO cancelled a subsequent performance scheduled for 15 August 2024 at the Melbourne Town Hall, citing safety concerns.

Court Proceedings and Testimony

The Pianist’s Case

Gillham testified on 25 March 2025 that he deliberately did not inform the MSO management or his agent about his plan to perform and introduce the piece. He stated:

“I worried the MSO would not allow the performance, they would find an excuse.”

“I was concerned they would not want any mention of Palestine on an MSO stage.”

His barrister, Sheryn Omeri KC, argued that the case concerns a worker’s right to freedom of expression. She said the MSO contract did not prohibit Gillham’s statement, his political belief was genuine, the introduction would not have made audience members feel unsafe, and that audience members could have left. She noted that Gillham was applauded and no audience member complained to him directly. Omeri also argued the case is significant for independent contractors and organizations that engage them.

The MSO’s Case

Justin Bourke KC, representing the MSO, argued that Gillham knew he was “overstepping the line” and making political statements about Gaza. Bourke contended that Gillham, as a performer on the MSO stage, was not permitted to share personal views on a highly controversial issue. He said there should be an expectation that a musician will not upset or offend a captive audience and will cooperate with the host. Bourke argued that the orchestra has the right to control what is said on its stages and that unrestricted free speech could affect ticket sales, sponsors, and donors.

MSO Management Testimony

Guy Ross, former chief operating officer, testified on 25 March 2025. He stated that after the concert, he exchanged messages with former director of philanthropy and external affairs Suzanne Dembo, expressing frustration, including the words:

“Crappy situation from Jayson,” “Bloody hell I’m furious,” and “I knew something like this would happen but not from a soloist FFS.”

Ross said the messages reflected concern about the effect on the MSO and checking on Dembo as a Jewish colleague previously upset by similar issues. He said he did not expect such conduct from a guest soloist, who are considered “the epitome of artistic professionals.” He noted that the morning after the concert, MSO leadership met and decided to contact Gillham’s manager, seek legal advice, and communicate with audience members.

Ross stated the need to act decisively, citing the Sydney Theatre Company’s slow response to a similar issue. During a phone call between MSO’s former director of programming and Gillham’s manager, the manager reportedly described Gillham’s introduction as a “complete nightmare,” “selfish,” and “a middle finger up to those that have built his career.”

Dr Sophie Galaise, former managing director, testified that she did not lead the decision to cancel the concert. She stated the cancellation was due to Gillham not flagging his comments beforehand, not their content. Ross had earlier testified that Galaise and artistic programming director Andrew Moore had decided to replace Gillham on the Monday after the recital. Galaise disputed this, saying the decision required validation of information and legal advice.

Under cross-examination, Galaise was asked if pledges from a major donor influenced the decision, which she denied. She added that the MSO would have acted similarly if comments had provoked complaints or threats, regardless of the topic.

Martin Foley, a board member and former minister, testified that he urged the board to reinstate Gillham in August 2024 to mitigate “reputation-shredding” fallout. Foley said he proposed the reinstatement at an August 14 board meeting, conditional on Gillham agreeing to certain conditions and a joint statement. He stated that the board was not consulted earlier in the process.

The court heard that a draft version of the MSO’s statement, which included an apology to Gillham and used the word “mistake,” was replaced with a final version using “error” and removing the apology. Foley said the final version was an MSO-only document after Gillham indicated his wellbeing prevented further performances.

Expert Witness Testimony

Morgan Hayes, professor of composition at the Royal Academy of Music, testified that there is no convention requiring guest artists to inform hosts of planned political statements. He cited a similar incident in 2025 where conductor Ilan Volkov made a speech about Gaza without prior approval. Hayes agreed it would not be ideal if a political statement caused unrest in the audience.

Angus McPherson, ABC Classic music programmer, testified that while no convention requires disclosure, an artist is expected not to harm the host’s reputation.

Legal Context

Justice Graeme Hill stated the case is not about the public controversy over the Middle East, and he will not allow it to become a “roving inquiry” into that issue. He urged witnesses to keep evidence relevant to legal issues.

The MSO had established a board working group in December 2023 to address responses to the Gaza and Israel conflict. The group concluded that the MSO should maintain a neutral position focusing on civilians. The court also heard that in December 2023, MSO management considered whether to take a position on Middle East events and decided not to, but this policy was not communicated to Gillham.

Under cross-examination, Foley acknowledged that if Gillham had sought prior permission, he would have tried to find an agreed position to avoid surprises for the organization and its audience.

The court heard that after the cancellation, the MSO received 487 complaints and 56 messages supporting the cancellation.

Gillham has raised over $175,000 through crowdfunding to cover legal costs. He is expected to be the first witness.

Background

The conflict in Gaza escalated after an attack on Israel by Hamas on 7 October 2023, which killed over 1,200 people. Since then, over 72,000 Palestinians have been killed in Gaza, according to UN-cited figures from Gaza’s Ministry of Health.

The case continues.