The Federal Court has rejected competing attempts by Mary Kostakidis and Zionist Federation’s CEO, Alon Cassuto, to vary discovery orders in racial discrimination case. Stephanie Tran reports.
In a judgment delivered Friday, Justice Stephen McDonald dismissed interlocutory applications brought by both parties seeking to vary discovery orders made by a registrar in May.
Cassuto had sought to remove discovery relating to the Zionist Federation of Australia’s July 2024 press conference announcing its complaint against Kostakidis to the Australian Human Rights Commission, while Kostakidis sought additional orders compelling Cassuto to produce communications from the “Lawyers for Israel” WhatsApp group.
The court dismissed both applications and extended the deadline for discovery to a later date to be fixed.
‘Not merely speculative’
Cassuto had sought to remove discovery relating to the ZFA’s July 2024 press conference and the preparation of the accompanying media statement.
Cassuto and ZFA president Jeremy Leibler held the press conference before lodging the AHRC complaint against Kostakidis. Her legal team argues the timing is evidence that the proceedings were brought as part of a
campaign intended to create a “chilling effect” on critics of Israel.
Justice McDonald rejected Cassuto’s application, finding communications concerning the press conference and official statement were “directly relevant” to issues raised in Kostakidis’s defence.
“I accept Ms Kostakidis’s submission that the involvement of Mr Cassuto in the ZFA press conference and any communications involving him are directly relevant to the issue of his motivation in bringing the proceeding,” the judge wrote.
“The close connection between the purposes and the interests of the ZFA, coupled with Mr Cassuto’s own position as the CEO of the ZFA, suggests a likelihood that, if there was discussion regarding a strategy or campaign with respect to Ms Kostakidis in which Mr Cassuto was involved,
it may well have involved communication between persons involved with the ZFA.
He said the circumstances surrounding the press conference may be capable of supporting an inference that the ZFA and Cassuto were “courting publicity” for the complaint and were concerned to draw public attention to Kostakidis’s posts, “including at the cost of drawing attention to the very content by which Mr Cassuto claims to have been offended and insulted”.
“Mr Cassuto was directly involved in the ZFA press conference. It is reasonable to infer that he was also involved in the preparation and/or the publication of the ZFA official statement. Both the ZFA press conference and the ZFA official statement related to the AHRC complaint made by Mr Cassuto himself. Mr Cassuto is the CEO of the ZFA and was in a position to influence its activities,” the judgment stated.
To be determined at trial
Justice McDonald emphasised that whether those inferences should ultimately be drawn would be determined at trial.
Cassuto also attempted to narrow the discovery of communications he made about Kostakidis to 4 January 2024 rather than 7 October 2023.
The judge rejected the application and held that communications dating back to 7 October 2023 could be relevant to Cassuto’s state of mind and his reasons for commencing the proceedings.
“If there were communications which suggested that, even before the first of the Posts, Mr Cassuto, or others with whom he was in contact and who were in a position to influence his decisions, were considering or planning some kind of complaint or legal action against Ms Kostakidis … then that may support an inference that Mr Cassuto was not personally offended by the Posts,” Justice McDonald wrote.
Justice McDonald said evidence suggesting people associated with the ZFA had discussed or coordinated such a campaign would be “directly relevant” to determining whether the proceedings had been instituted for that purpose.
Kostakidis’s defence argues the proceedings were instituted “vexatiously, without reasonable cause and in bad faith” as part of a campaign intended to deter criticism of Israel.
The judge found Kostakidis had identified a factual basis for her allegations and that, although they depended on inference, they were “not merely speculative”.
He said the facts pleaded by Kostakidis were “rationally capable of supporting the inference” that she sought to draw, while stressing that whether those allegations were ultimately established would be determined at trial.
Lawyers for Israel request refused
Justice McDonald also rejected Kostakidis’s application for an additional discovery order requiring production of communications from a WhatsApp group known as “Lawyers for Israel”.
Kostakidis’ legal team argued that it was likely either Cassuto or one or more of the solicitors acting for him were part of the group and “there was likely to have been discussion in that group of a strategy or campaign to target Ms Kostakidis”.
Justice McDonald declined to make the additional order, finding “the benefits of ordering discovery by Mr Cassuto of documents in that additional category are, at best, elusive”.
In 2024, it was revealed that the “Lawyers for Israel” WhatsApp group coordinated a campaign to have journalist Antoinette Lattouf ousted from the ABC.
A three-week trial is scheduled to commence in the Federal Court on 30 November.
Mary Kostakidis. Forced to argue against Israel’s war in an Australian court
Stephanie is a journalist with a background in both law and journalism. She has worked at The Guardian and as a paralegal, where she assisted Crikey’s defence team in the high-profile defamation case brought by Lachlan Murdoch. Her reporting has been recognised nationally, earning her the 2021 Democracy’s Watchdogs Award for Student Investigative Reporting and a nomination for the 2021 Walkley Student Journalist of the Year Award.