Concert pianist Jayson Gillham has denied he deliberately misled the Melbourne Symphony Orchestra about performing a piece dedicated to journalists killed in Gaza.
It's been almost two years since Gillham played Witness by composer Connor D'Netto at a MSO concert, prefaced by onstage comments about Israel killing journalists.
The pianist is suing the orchestra in the Federal Court for discrimination based on his political beliefs, in a case that will test the limits of free speech in Australian workplaces.
Giving evidence in chief on the opening day of a 15-day trial, the pianist agreed he had not told the orchestra or his agent about his intentions to play the piece.
"I worried the MSO would not allow the performance, they would find an excuse," he said.
Gillham introduced the composition by saying Israel targeted journalists in an effort to prevent the documentation and broadcasting of war crimes.
It prompted the orchestra to cancel an upcoming performance at the Melbourne Town Hall citing safety concerns.
Earlier on Monday, the orchestra argued Gillham would have anticipated people would be upset by his comments, with management responding to the incident within minutes as all hell broke loose within the MSO.
The organisation had no forewarning about Gillham's onstage comments and felt misled by him, MSO barrister Justin Bourke KC told the court in an opening address.
"He knew he was overstepping the line, he knew he was going to make political statements about Gaza," he said.
Gillham's barrister Sheryn Omeri KC said the case was fundamentally about the right to freedom of expression for workers and whether those rights could be limited by the implied terms of a contract.
The pianist's comments were lawful and audience members who did not want to listen to them could have left the Southbank venue, she said.
"There is no right not to hear things that make us uncomfortable ... there is a difference between feeling uncomfortable and feeling unsafe and nothing in that speech would have made anyone feel unsafe," Ms Omeri said.
The orchestra received one written and two verbal complaints after the concert, followed by 487 complaints about its decision to cancel Gillham's next MSO performance, the court heard.
But Mr Bourke argued an unfettered right to free speech on the stage could have profound consequences, affecting ticket sales, sponsors and donors.
It would ultimately be unworkable, especially if an artist wanted to speak on stage for an hour, he said.
"We are entitled to have control over our own stage, especially when statements are going to be made that are highly controversial," Mr Bourke said.
Justice Graeme Hill encouraged lawyers on both sides of the dispute to limit their rhetoric about events in the Middle East.
"I am trying to talk about it as little as possible, are you opening up this can of worms?" he asked Mr Bourke.
Intergenerational conflicts in the region between Palestinians and Israelis escalated on October 7, 2023, when terrorist organisation Hamas launched an assault in southern Israel that killed more than 1200 people.
Since then, more than 72,000 Palestinians have been killed in the Gaza Strip, according to figures from Gaza's Ministry of Health cited by the United Nations.
The trial is expected to run for three weeks and the orchestra is expected to call about 20 witnesses.
