Background
Alon Cassuto, CEO of the Zionist Federation of Australia, sued Mary Kostakidis for alleging she violated s 18C of the Racial Discrimination Act 1975 by making two posts on X (formerly Twitter) on 4 and 13 January 2024. Each post reposted content containing a link to a speech by Hezbollah leader Hassan Nasrallah. Kostakidis admitted making the posts but denied they were motivated by race, national origin, or ethnicity, and invoked statutory defenses under s 18D. She also pleaded that Cassuto instituted the proceeding vexatiously, without reasonable cause, and in bad faith—arguing he was part of a deliberate campaign to intimidate critics of Israel.
A registrar made discovery orders on 12 May 2026. Cassuto sought review to narrow or eliminate certain discovery categories, while Kostakidis sought additional discovery of communications from a WhatsApp group of lawyers sympathetic to Israel. The court held a hearing on 29 June 2026 to review these interlocutory applications.
The Court’s Holding
Justice McDonald affirmed the registrar’s discovery orders substantially unchanged. The court held that Kostakidis’s defense plea—that Cassuto brought the proceeding vexatiously and in bad faith—is not purely speculative. Although it depends on inferences drawn from diverse facts, Kostakidis identified a concrete factual basis: Cassuto held a press conference on 14 July 2024 with the ZFA President before filing his complaint with the Australian Human Rights Commission, and the ZFA published an official statement quoting the very speech Cassuto claimed offended him. This sequence was capable of supporting an inference that Cassuto was seeking to amplify publicity rather than remedy genuine harm.
The court rejected Cassuto’s request to narrow the date range of discovery (from 7 October 2023, when Kostakidis became critical of Israel’s conduct, to 4 January 2024, when she made the challenged posts). Communications predating the posts remained relevant to both Cassuto’s state of mind and Kostakidis’s motivation for the litigation. The court upheld discovery of documents concerning the ZFA press conference and Kostakidis’s public activity on X. However, it rejected Kostakidis’s application for discovery of communications sent in a private WhatsApp group for lawyers, finding the connection too speculative. The court extended the deadline for Cassuto to make discovery.
Key Takeaways
- Discovery applications are reviewed de novo on their merits; the burden remains on the requesting party to justify each category sought.
- A defense plea of vexatious or bad faith litigation is not “fishing” merely because it requires proof of motive or state of mind, if the pleader identifies a factual foundation and some evidence for the allegation.
- Documents reflecting a plaintiff’s public actions before filing a legal claim—such as a press conference timed just before complaint and publicity about the dispute—are directly relevant to questions of litigation purpose and motivation, even if that motivation is not an element of the underlying cause of action.
- Discovery of private communications among lawyers or advocacy groups goes too far without more specific evidence linking those communications to the party being discovered against.
Why It Matters
This decision clarifies the interaction between Racial Discrimination Act claims and defenses based on litigation abuse or improper motivation. While s 18C focuses on the objective effect of speech (whether it is reasonably likely to offend or insult), the Court recognized that evidence of a plaintiff’s ulterior motive or bad faith in pursuing the claim is both relevant and discoverable, even though motive is not technically an element of the cause of action. The ruling thus permits defendants to pursue legitimate investigative discovery into whether litigation has been weaponized for purposes other than obtaining relief.
The case also establishes boundaries: speculative fishing expeditions into private group communications remain off-limits, but discovery of a party’s own public conduct and direct involvement in publicizing a complaint before it is formally filed is fair game. This balance reflects judicial concern that the litigation process not be abused to chill lawful speech while respecting the need for fair and complete trial preparation.