FEDERAL COURT OF AUSTRALIA

Shurat HaDin, Israel Law Center v Lynch (No 2) [2014] FCA 413

THE COURT ORDERS THAT:

1.    Until further order, the maximum costs as between party and party that may be recovered for the proceedings is specified as $300,000.

2.    If within 21 days the fourth applicant, Mr Andrew Hamilton, undertakes to the Court in writing not to diminish or dispose of his interests in and not to further encumber his interests in the property identified in his affidavit sworn on 18 February 2014 without first giving 21 days written notice to the respondent, the respondent’s application for security for costs be refused. If no such undertaking is given within 21 days the Court will order security for costs in an amount and on terms which the Court will then determine.

3.    Paragraphs 9, 20, 32 and 34 to 40 inclusive of the statement of claim be struck out.

4.    The applicants have leave to replead those paragraphs within 28 days from the date of these orders.

5.    The applicants file and serve an amended statement of claim by 22 May 2014.

6.    The respondent file and serve his defence by 19 June 2014.

7.    The proceedings be listed for directions at 9.30 am on 25 June 2014.

8.    The parties have liberty to apply on 3 days notice.

9.    There be no order for costs in relation to the interlocutory applications for a maximum costs order and for security for costs.

10.    The applicants pay the respondent’s costs of and incidental to the interlocutory application to strike out the statement of claim.

11.    The respondent may immediately tax the costs the subject of order 10.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The proceedings in this Court were commenced by the filing of an originating application on 29 October 2013.

2    These reasons deal first with the applicants’ interlocutory application filed on 21 February 2014 for an order specifying the maximum amount of costs as between party and party that may be recovered for the proceeding (commonly called a costs-capping order) and the interlocutory application filed on 3 February 2014 by the respondent for security for costs. I shall then deal in these reasons with the interlocutory application by the respondent to strike out the statement of claim in whole or in part.

3    The first applicant is pleaded to be “a legal entity incorporated in the State of Israel as a not-for-profit organisation”, “an organisation of Israeli national origin” and “an Israel based civil rights organisation”. The second and third applicants are each pleaded to be Israeli citizens residing in Israel and “a consumer of cultural services provided in Israel in English by providers of cultural services residing outside of Israel.” The fourth applicant is pleaded to be an Israeli citizen residing party in Israel, “a consumer of cultural services provided in Israel in English by providers of cultural services residing outside of Israel” and the major shareholder of the fifth applicant Green Freedom Limited. The fifth applicant is pleaded to be a company incorporated under Israeli law and “carrying on the business of selling Israeli products from Israel to worldwide markets, including Australia”. The respondent is pleaded to be a professional academic from Sydney University and “the director of the ‘Center for Peace and Conflict Studies’” at that University.

4    I should emphasise that my decision on these interlocutory applications, in particular the application to strike out the statement of claim, does not at all concern any question of the merits, or otherwise, of the applicants’ or the respondent’s case.

5    Once these interlocutory matters are decided, there will remain to be argued, if necessary, a question about whether the proceedings should continue as representative proceedings; whether two further applicants should be joined; and, perhaps after those issues are resolved, the most efficient way of deciding the central issue or issues between the parties, whether by way of preliminary question or otherwise.

Maximum costs order

6    By an interlocutory application filed on 21 February 2014, the applicants sought orders that the maximum costs that may be recovered in the proceeding by the respondent from the applicants on a party-party basis be $100,000 or, in the alternative, the maximum costs that may be recovered in the proceeding by the respondent from the applicants and by the applicants from the respondent on a party-party basis be $100,000.

7    Rule 40.51 of the Federal Court Rules 2011 (Cth) (FCR) provides:

40.51    Maximum costs in a proceeding

(1)     A party may apply to the Court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding.

Note: Costs as between party and party is defined in the Dictionary.

(2)    An order made under subrule (1) will not include an amount that a party is ordered to pay because the party:

(a)    has failed to comply with an order or with these Rules; or

(b)    has sought leave to amend pleadings or particulars; or

(c)    has sought an extension of time for complying with an order or with any of these Rules; or

(d)    has not conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, and another party has been caused to incur costs as a result.

8    Rule 40.51 must be read with r 1.40, which provides that the Court may exercise a power mentioned in the FCR on its own initiative or on the application of a party.

9    The authorities have been recently considered in King v Virgin Australia Airlines Pty Ltd [2014] FCA 36 per Foster J who referred principally to the judgment of Nicholas J in Haraksin v Murrays Australia Ltd (2010) 275 ALR 520; [2010] FCA 1133 at 521–522 [6]–[9] and to Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 at [6]–[7] per Bennett J, who identified a number of factors relevant to the exercise of the discretion under the earlier rule, O 62A r 1, including:

•    the timing of the application;

•    the complexity of the factual or legal issues raised in the proceeding;

•    the amount of damages the applicant seeks to recover;

•    whether the applicant’s claims are arguable and not frivolous or vexatious;

•    the undesirability of forcing the applicant to abandon the proceedings;

•    whether there is a public interest element to the case;

•    the costs likely to be incurred by the parties in the preparation for, and hearing of, the matter; and

•    whether the party opposing the making of the order has been uncooperative and/or has delayed the proceedings.

However, the discretion is a broad one and must be exercised judicially, having regard to all relevant circumstances.

10    To the extent that the applicants seek a maximum costs order in their favour only, I refuse that application. I see no reason why such an order should be made. Decisions of this Court under the previous corresponding rule have held that an order made pursuant to that rule must apply in favour of both parties and could not be made solely for the benefit of one party to the proceedings: Maunchest Pty Ltd v Bickford (Unreported, Federal Court of Australia, NG808 of 1992, 7 July 1993); Muller v Human Rights & Equal Opportunity Commission [1997] FCA 634; Hanisch v Strive Pty Limited (1997) 74 FCR 384 at 389–390; Sacks v Permanent Trustee Australia Ltd (1993) 45 FCR 509 at 513.

11    In the present case an estimate of the costs likely to be incurred by the respondent is in the order of $390,000 on a party-party basis. In my view that estimate is too high having regard to how the case should be conducted and I would reduce it to $340,000. The applicants would contend that figure also would be too high so far as concerns the respondent but, in my opinion, for present purposes it is a sufficient estimate at this early stage. Assuming I have the power to do so, I see no reason to exercise my discretion differentially as between the applicants and the respondent in this respect even if the applicants’ party-party costs are lower in that one of the applicants, Mr Hamilton, has done much of the appearance work so far.

12    It is, in my view, appropriate in proceedings of the present nature and bearing in mind the identity of all the parties and their interests that a maximum costs order should be made. Such an order, which will be subject to further order, will provide an incentive to the parties to litigate in accordance with the principles of civil litigation in the Federal Court of Australia Act 1976 (Cth) s 37N and focus on the real issues and on the shortest path between identifying those issues and bringing the matter to trial without, or with fewer, incentives to spend time on procedural rather than substantive matters. The ascertainment of the primary facts should not be complex. I note, however, that the proceedings have been on foot since 29 October 2013, that the pleadings have not yet been finalised and that the present interlocutory applications took up two days of oral argument, written submissions having previously been filed.

13    The respondent submitted that no costs-capping orders should be made because: (1) there had been delay incurred due to the defective nature of the applicants’ pleadings which remained in issue; (2) a costs-capping order was not raised at the first opportunity; (3) this was a representative proceeding and the relevant parties could be asked to contribute to the costs; (4) the matter is complex and poorly pleaded; (5) the pleadings are liable to be struck out in part and costs act as an appropriate discipline on a weak case brought by the applicants; (6) this was politically motivated litigation rather than in the public interest; (7) it was arguable that the action was motivated to make a broader political point against the Boycott, Divestment and Sanctions (BDS) movement rather than to remedy any perceived injury suffered as a result of the respondent’s actions (in any event denied); (8) there was no compelling evidence that without such an order the litigation would not proceed; and (9) it was significant that the application for a costs cap had been made in response to the respondent’s application for security for costs.

14    I take into account, but place little weight on, any public interest element or complexity in the case because a maximum costs order should, in the circumstances of this case, focus on the position of the parties themselves. As I will later develop, public interest provides an elusive principle to apply in matters of costs.

15    I do not accept that there has been disqualifying delay or other disqualifying conduct on the part of the applicants. More particularly, I note the terms of r 40.51(2) which leave a party exposed to a costs order outside any maximum in the events there stated. I shall exclude from the maximum costs order costs incurred prior to the date of filing the relevant interlocutory application on 21 February 2014. I also regard a maximum costs order as in the interests of the parties so as to properly limit each of the parties’ exposure to an unnecessarily larger costs order. As I have indicated, in my opinion, a maximum costs order would have a tendency to limit the costs in a manner commensurate with the proper scope of the proceedings.

16    There is no persuasive evidence that a maximum costs order will force either side not to pursue the proceedings.

17    In the exercise of my discretion, I therefore make an order specifying the maximum costs as between party and party that may be recovered for the proceeding as $300,000. I note, as I have referred to above, the terms of r 40.51(2). I exclude from the order all costs incurred prior to the date on which the interlocutory application seeking the maximum costs orders was filed and all costs associated with amendments to the applicants’ statement of claim. I see no reason why either party should be required to bear their own costs without a potential indemnity up to that amount. As I have said, that order will be until further order.

Security for costs

18    The source of the Court’s power to order security for costs is to be found in s 56 of the Federal Court of Australia Act. Rule 19.01 of the FCR is also relevant.

19    I am not persuaded that because this is said to be a human rights or public interest case I should not consider the security for costs application or grant security: the respondent is an individual and the characterisation of proceedings as public interest litigation for costs purposes is notoriously elusive: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [30], and of itself does not justify a departure from the ordinary rule as to costs: Oshlack v Richmond River Council at [54]. In Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [18] Black CJ and French J said:

That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation. It does not follow that the nature and purpose of the proceedings is irrelevant nor is the history and purpose of the statute conferring the discretion to award costs.

I would not presently conclude, as implicitly contended by the applicants, that I would not make a costs order in favour of the successful party once the entire proceedings have been heard and determined: compare Oshlack v Richmond River Council.

20    There is no evidence that any of the applicants is impecunious. I propose to focus on the position of Mr Hamilton, the fourth applicant, because each applicant would be likely to be jointly and severally liable for any costs order. Thus the respondent could enforce against Mr Hamilton, assuming he has substantial property of a fixed and permanent nature within the jurisdiction. One factor to be taken into account in exercising the discretion to require security for costs is whether the non-resident applicant has substantial property of a fixed and permanent nature within the jurisdiction that can be made available to meet a costs order: this consideration is generally traced back to Ebrard v Gassier (1884) 28 Ch D 232 at 235. I place little weight on the issue of enforceability of any judgment in Israel as there is no evidence, one way or the other, of assets of the applicants in Israel.

21    The evidence and inferences I draw from it show that Mr Hamilton owns a house at Moverly Road, South Coogee as joint tenant. The house is said by Mr Hamilton to have an approximate value of $2.4 million but is subject to a mortgage securing loans totalling approximately $1.25 million. Mr Hamilton also has interests in real property at Barwon Street, Collarenebri (a 25% share as tenant in common) where he deposes that a total of approximately $330,000 has been invested in its purchase and development and two properties at Wilson Street, Collarenebri (as joint tenant) where he deposes that a total of some $145,000 has been invested in the purchase and development of those properties. Mr Hamilton is the trustee of one of the Wilson Street properties for his self-managed superannuation fund. The evidence as to value, both gross and net, is less than satisfactory but in my opinion orders for security for costs are primarily matters of practice and procedure and the evidence is sufficient.

22    If Mr Hamilton, the fourth applicant, is prepared to undertake in writing to the Court not to diminish or dispose of or further encumber his interests in the assets to which I have referred, being the property identified in particular in his affidavit sworn on 18 February 2014, without giving 21 days written notice to the respondent then I do not consider it necessary at present to make an order for security for costs. Mr Hamilton has ties to the jurisdiction and, in my opinion, sufficient real property assets in the jurisdiction to meet an adverse costs order: see generally P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36. If such an undertaking is not given within 21 days I shall make an order for security for costs in an amount and on terms I shall then determine.

23    I am not persuaded on the evidence that an order for security would prevent the pursuit of the proceedings by the applicants.

24    For completeness, because it is a matter identified in FCR r 19.01, as to the significance of which see Ninan v St George Bank Ltd (2012) 294 ALR 190; [2012] FCA 905 at [34] per Griffiths J, I find that Mr Hamilton is ordinarily resident outside Australia. I base this finding on the entire contents of Mr Hamilton’s affidavit sworn on 18 February 2014, but in particular on Mr Hamilton there stating that he lived in Sydney, Australia until October 2008 when “I exercised my right as a Jew under the Israeli ‘Law of Return’ to return to the Jewish homeland – the State of Israel, and be granted Israeli citizenship. Since October 2008 I have spent the majority of my time in Israel but have also spent a large amount of time in Australia. Based on my memory and a review of my records, in the 4 year period from 1 January 2010 until 31 December 2013 I have spent approximately 15 months in Australia. Based on my memory and a review of my records, in the 4 year period from 1 January 2010 until 31 December 2013 I made approximately 15 separate trips to Australia.”

The pleadings

25    The applicants submitted that the case had been brought as a human rights case and s 46PR of the Australian Human Rights Commission Act 1986 (Cth), in providing that the Court is not bound by technicalities or legal forms, subject to Chapter III of the Constitution, had the consequence that the Court was obliged to focus on evidence and not on any lack of clarity or precision in the pleading. The applicants referred to Walker v Victoria [2012] FCAFC 38 at [80]–[81] per Gray J, followed by Bromberg J in Ewin v Vergara (No 3) [2013] FCA 1311 at [89]. The applicants submitted that there was effectively Full Court authority saying that deficiencies in the pleadings should not get in the way.

26    The applicants submitted that s 46PR effectively meant that the way things are handled in the Federal Circuit Court was relevant in a human rights case before the Federal Court.

27    The applicants submitted there was no authority in the human rights jurisdiction where s 46PR applied that a strike out application was permissible.

28    Striking out the statement of claim was an exercise of putting technicality and formality ahead of substance, the applicants submitted. They submitted it was not permissible to bring a strike out application at this stage of proceedings because s 46PR precluded such an application, which was inherently putting technicality and formality over substance. Where a matter of substance came into conflict with a matter of technicality or formality, the applicants submitted, then the effect of s 46PR was that the matter of substance must prevail.

29    The applicants submitted that the cause of action was under s 46PO and as long as that cause of action was made out then that satisfied the jurisdictional requirement for the hearing of the matter. The applicants submitted that only the termination of a complaint alleging unlawful discrimination under s 46PO was the cause of action in the proceedings. They submitted that the Racial Discrimination Act 1975 (Cth) does not create a direct cause of action for unlawful discrimination.

30    The applicants relied on the following cases.

31    In Baird v Queensland (2005) 146 FCR 571; [2005] FCA 1516 at [9] Dowsett J held that there was no suggestion in the then Human Rights and Equal Opportunity Commission Act 1986 (Cth) that any right to relief existed prior to the termination of the complaint and a cause of action accrued to each applicant at the time of such termination. It followed in that case that the proceedings were not statute-barred.

32    In Bropho v Western Australia [2004] FCA 1209 RD Nicholson J agreed with the respondents’ submission that the removal of the relevant provisions from Pt III of the Racial Discrimination Act and the insertion of them into the Human Rights and Equal Opportunity Commission Act did not materially change the scheme of the Racial Discrimination Act and therefore Re East; Ex parte Nguyen (1998) 196 CLR 354 remained a binding authority to the extent of its ratio. That is, relevantly, it was an authority binding the Court to the principle that the Racial Discrimination Act, if sought to be invoked, provided its own exclusive regime for remedying contraventions.

33    In my opinion, Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 at [43] is recent authority for the proposition that in order to make out a case the applicants have to show that the respondent’s act was, or acts were, unlawful because they fell within the sections of the Racial Discrimination Act which the applicants invoked.

34    In the case of s 9, for example, the applicants need to show:

(a)     the act or acts the respondent allegedly did;

(b)     that each act involved a distinction, exclusion, restriction or preference, based on race, colour, descent or national or ethnic origin; and

(c)     that each act had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs,     that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

In relation to s 9, it is the first of these matters which is presently under consideration.

35    I do not regard the conclusions in the cases relied on by the applicants as having the consequence that this Court should not require pleadings that adequately state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial. After all, the point of Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245 is that the Commission is not a court, let alone a court with adversarial proceedings, so one would not expect the need for precision to be as great in that forum as it is in the Court. I would also note, as a general observation, that some of the prolongation and complexity of some human rights litigation may be seen to stem from an inadequate identification of the primary facts in the first place.

36    I reject the submission on behalf of the applicants that it is sufficient to establish: a terminated complaint; an affected person; and an allegation of unlawful discrimination, being the matters referred to in s 46PO of the Australian Human Rights Commission Act. I also reject the submission, founded on Hinchliffe v University of Sydney (2004) 186 FLR 376; [2004] FMCA 85 at [94], with reference to the practice in what is now the Federal Circuit Court of Australia, that there is a principle that pleadings in a formal sense should not be required in proceedings under the Australian Human Rights Commission Act.

37    The applicants accepted, in the course of argument, that they had to show an unlawfulness under the Racial Discrimination Act in order to succeed under the cause of action under s 46PO of the Australian Human Rights Commission Act but, while maintaining that the pleadings actually did do this, submitted they did not necessarily have to plead out every element. The applicants maintained that the cause of action was not under the Racial Discrimination Act, and so the statement of claim could not be struck out for lack of a cause of action because of any failings in the pleadings in relation to the Racial Discrimination Act. As will become apparent, I do not accept this submission.

38    I turn now to the pleading itself.

39    The broad structure of the statement of claim is first to describe what is said to be the Boycott, Divestment and Sanctions (BDS) movement (BDSM) in Australia.

40    Paragraph [10] alleges:

[10]     The BDS movement is a loosely connected group of individuals and organisations self described as a global movement for a campaign of boycott, divestment and sanctions against Israel.

41    Paragraph [11] alleges, omitting the particulars:

[11]    A goal of the BDS movement is to isolate and apply economic and other pressure to the State of Israel by the mechanism of boycotts, divestment and sanctions against Israeli persons, products and organisations.

42    Paragraph [9] alleges:

[9]     The Respondent is a leader and advocate of the the [sic] Boycott, Divestment and Sanctions (“BDS”) movement (“BSDM”) [sic] in Australia.

43    Paragraph [14] is in the following terms:

[14]    The BDS movement calls for individuals and organisations to implement boycotts (“Boycott Calls”) of:

    a.    goods made in Israel;

b.     goods made by companies of Israeli national origin, companies related to companies or persons of Israeli national origin or companies perceived by the BDS movement to be of Israeli national origin;

c.     services supplied from Israel;

d.     services supplied by companies of Israeli national origin, companies related to companies or persons of Israeli national origin, or companies perceived to be of Israeli national origin;

e.     academic institutions based in Israel;

f.     academic professionals of Israel [sic] national origin;

g.     academic professionals from or associated with academic institutions based in Israel;

h.     sporting institutions based in Israel;

i.     sporting professionals of Israel [sic] national origin;

j.     sporting professionals from or associated with sporting institutions based in Israel;

k.     cultural institutions based in Israel;

l.     cultural professionals of Israel [sic] national origin;

m.     cultural professionals from or associated with cultural institutions based in Israel;

n.     consumers based in Israel who desire:

i.     personal services provided by cultural professionals based outside Israel;

ii.     personal services provided by academic professionals based outside Israel;

iii.     personal services provided by sporting professionals based outside Israel.

The apparent relevance of these categories except in relation to academic institutions and academic professionals and, perhaps, the supply of goods or services caught up in the BDS retail protests remains elusive and is a matter to which I return in what follows.

44    Paragraphs [15] and [16] of the statement of claim are in the following terms:

[15]     The BDS movement contends that the persons, institutions or organisation [sic] targeted by the Boycott Calls are associated with and/or are responsible for the alleged actions of the Israeli government.

[16]     The persons and organisations targeted by the Boycott Calls are not associated with or responsible for the alleged actions of the Israeli government, other than merely by reason of their race, descent or national or ethnic origin.

45    Paragraphs [17]–[19] make separate allegations. They are in the following terms, omitting the particulars under [17]:

[17]    The BDS movement conducts public protest campaigns in close proximity to retail shops which are, or are perceived by the BDS movement to be, of Israeli national origin, or controlled by persons of Israeli national origin (“BDS Retail Protests”).

[18]    The BDS movement contends that the retail shops targeted by the BDS Retail Protests are associated with and/or is [sic] responsible for the alleged actions of the Israeli government.

[19]    The retail shops targeted by BDS Retail Protests are not associated with or responsible for the alleged actions of the Israeli government, other than merely by reason of their race, descent or national or ethnic origin.

46    Paragraph [20] is in more general terms:

[20]    A purpose of the BDSM campaigns is to inflict harm on Israeli persons and organisations.

Particulars

a.    A purpose of the BDSM boycott campaign against Israeli academics and academic institutions is to harm them by depriving them of access to:

i.    opportunities for the exchange of knowledge;

ii.    opportunities for improvement of their standing and reputation in the academic world;

iii.    opportunities for financial rewards from overseas academic postings and collaboration.

b.    A purpose of the BDSM boycott campaign against Israeli businesses is to inflict economic harm on those businesses by depriving them of access to customers and suppliers.

c.    A purpose of the BDSM boycott campaign against Israeli consumers is harm [sic] them by depriving them of access to desirable goods and services.

d.    A purpose of the BDSM cultural boycott campaign against Israeli consumers is harm [sic] them by depriving them of access to desirable cultural experiences.

e.    A purpose of the BDSM boycott campaign against Israeli cultural professionals and cultural institutions is to harm them by depriving them of access to:

i.    opportunities for the exchange of cultural knowledge and experiences;

ii.    opportunities for improvement of their standing and reputation in the cultural world;

iii.    opportunities for financial rewards from overseas performances and collaboration.

f.    A purpose of the BDS Retail Protests is to discourage consumers from shopping at the targeted retail shops.

It is not made clear what are alleged to be the BDSM campaigns, the BDSM boycott campaign or campaigns, or the BDSM cultural boycott campaign or campaigns and, since those matters appear to be important to the allegations, the statement of claim should be repleaded to remedy these deficiencies.

47    Paragraphs [32] to [40] are at the heart of the pleading. It is these paragraphs to which the later paragraphs, described generally as giving a legal characterisation to the facts, refer.

48    Paragraph [32] is in the following terms:

[32]     The Respondent has participated in and publicly supported the BDS movement.

49    Paragraph [33] alleges that the respondent is the guiding mind of the Centre for Peace and Conflict Studies (CPACS) at the University of Sydney.

50    Paragraphs [34]–[40] allege as follows, omitting particulars:

[34]     The Respondent has implemented the Boycott Calls against Professor Dan Avnon of Hebrew University, both personally and at CPACS.

[35]     The Respondent has implemented the Boycott Calls against academic professionals from Israeli academic institutions, both personally and at CPACS.

[36]    The Respondent has endorsed, repeated and republished:

a.     the Boycott Calls;

b.     and the allegations referred to in paragraph 15,

c.     in the circumstances referred to in paragraph 16.

[37]     The Respondent has published material indicating his intention to endorse, repeat, republished [sic] and implement the Boycott Calls.

[38]     The Respondent has encouraged other people to participate in and implement the Boycott Calls.

[39]     The Respondent has trained other people to participate in and implement the Boycott Calls.

[40]     The Respondent has encouraged and trained other people to participate in and implement the BDS Retail Protests.

51    Paragraph [34] is at the heart of [41] and therefore [42]–[52], [69] and therefore [70]–[74], [81] and therefore [82]–[91], [103] and therefore [104]–[108], and [114] and therefore [115]–[121].

52    Paragraph [34] is also an important part of paragraph [35] which in turn is at the heart of [53] and therefore [54]–[68], [75] and therefore [76]–[80], [92] and therefore [93]–[102], [109] and therefore [110]–[113], and [122] and therefore [123]–[127].

53    Paragraph [36] is at the heart of [128] and therefore [129]–[140]. Paragraph [36] is also at the heart of [141] and therefore [142]–[146].

54    Paragraph [37] is at the heart of [147] and therefore [148]–[151].

55    Paragraphs [38] and [39] are at the heart of [152] and therefore [153]–[155].

56    Paragraphs [17] to [19] are at the heart of [156] and therefore [157]–[161] and paragraphs [17] to [19] are also at the heart of [162] and therefore [163]–[167].

57    Paragraph [40] is at the heart of [168] and therefore [169]–[171].

58    The applicants accepted that the basic facts were set out in paragraphs [32] to [40], although submitted there were some other additional facts pleaded in other parts. The applicants submitted that paragraphs [9] through to [20] effectively set out the context of those acts, which informed the purpose and the actual details of what had been done because the respondent had been implementing a policy. Then paragraph [40A] attempted to link those matters together for the purposes of s 9 of the Racial Discrimination Act and for other purposes.

59    As to what the respondent was alleged to have done, the applicants pointed to correspondence showing, it was submitted, that the respondent had refused a request from a Professor Avnon of the Hebrew University for permission to use the respondent’s name on Professor Avnon’s application form for a fellowship.

60    The applicants submitted with reference to paragraph [34] of the statement of claim and s 9(1) of the Racial Discrimination Act that the act was the announcement of a policy that the respondent refused to participate in any institutional arrangement with a university of Israeli national origin and there was a second act where the respondent implemented that decision in relation to Professor Avnon by refusing to allow his, the respondent’s, name to be used in the application to get the fellowship. It was submitted that the respondent was effectively acting as an agent of the University of Sydney.

61    The applicants submitted that it did not matter whether the respondent was required to endorse Professor Avnon’s application for the fellowship as discrimination cases were not about obligation.

62    The applicants submitted there were a number of subsequent acts, one of them being the exclusion of Professor Avnon, others being letters written to vice-chancellors to try to cancel arrangements, others being attempts to block Israeli academics coming to Sydney University under cross-institutional arrangements.

63    In my opinion the relevant question is whether paragraph [34] of the statement of claim, or other paragraphs, sufficiently delineate the facts on which the applicants wish to rely so that the respondent could fairly understand them and respond to them and, when the respondent did respond to them, the Court would then be in the position to decide whether the fact was or was not made out.

64    Insofar as the applicants submitted that the respondent actually knew the case that he had to meet because of the terms of an article published by him on 18 November 2013, in my opinion it does not follow that because the respondent published an article in certain terms then the statement of claim adequately sets out the material facts. In my opinion evidence, on the one hand, and the adequate identification of material facts, on the other, are not to be confused.

65    The applicants submitted that everything the respondent had done which the applicants claimed breached the Racial Discrimination Act was because of his support of the BDS movement. There was, the applicants submitted, an effect of the respondent’s acts but the policy of the BDS movement went to the respondent’s purpose and that was dealt with in paragraph [40A].

66    The applicants accepted that paragraph [34] was not intended to mean that the respondent in each act implemented each of the pleaded integers, (a) to (n) of the Boycott Calls as pleaded.

67    The applicants accepted that paragraph [34] was “more of a heading” and the material facts were actually set out in the particulars. If the words “has implemented the Boycott Calls” created confusion, they could be just replaced with “the respondent has done the following acts against or in relation to Professor Avnon” and everything else would be the same. The applicants submitted that the Boycott Calls were relevant for the purpose.

68    In relation to paragraph [35], the applicants submitted the particulars were material facts that were acts for the purposes of s 9 and they also potentially fell under ss 11, 13 and 15 of the Racial Discrimination Act.

69    Paragraph [36], the applicants submitted, was relevant to s 17 of the Racial Discrimination Act.

70    The applicants submitted that each time the respondent spoke at a forum and endorsed the BDS movement as a whole and each time he wrote an article that endorsed the BDS movement as a whole he was endorsing what was contained on the BDS websites. This was alleged to be an act for the purpose of s 9 of the Racial Discrimination Act and also an incitement or promotion and advertisement under ss 16 and 17, assisting in promoting people to do what the BDS movement said, which was the Boycott Calls. That required an examination of what the BDS movement actually said people were supposed to do.

71    The applicants submitted that if there was a public meeting which was entitled as advocating the BDS movement, what was said at the meeting was not absolutely necessary to the pleading. One can presume, the applicants submitted, that words were said at the meeting to the effect that supported the BDS movement and one could infer from the other published material that words to a similar effect were said.

72    The applicants submitted that when a person advocated for the BDS movement then that person was effectively picking up the Boycott Calls that are in the BDS movement material and the same approach applied throughout.

73    The applicants submitted in relation to paragraph [156] and onwards that they did not plead that the respondent actually participated in the BDS Retail Protests. Nevertheless they said that the BDS Retail Protests were unlawful under s 9 of the Racial Discrimination Act and s 17 was pleaded in relation to the respondent’s involvement, so that while he was not directly involved it was alleged that he had incited, assisted or promoted the implementation of the BDS Retail Protests. Paragraphs [156] to [167], it was submitted, merely established the unlawfulness of the BDS Retail Protests which unlawfulness was then fed into the claim that the respondent had incited or assisted or promoted that unlawful conduct.

74    In the rest of the pleading, the applicants submitted, the unlawful conduct was by the respondent himself but in the case of the BDS Retail Protests the unlawful conduct was not by the respondent himself but in relation to inciting and supporting.

Consideration

75    In considering these issues, consistently with s 46PR I do not proceed on the basis that it is impermissible to plead material facts in the form of particulars.

76    However the difficulty this occasions is illustrated by [41] which pleads:

[41]    The Respondent did the acts specified in paragraph 34 (“Avnon Acts”).

If attention is focused solely on paragraph [34] apart from the particulars then [41] is uninformative. If instead attention is directed to the particulars it is clear that the cross referencing is inaccurate because some of the particulars do not state acts which the respondent could have done. Particulars b and d of paragraph [34] make allegations about Sydney University and present argument (“Only a professional academic …”) respectively.

77    These observations underline the importance of the paragraphs, including the particulars, up to paragraph [41] clearly identifying what acts the respondent is alleged to have done.

78    As to those paragraphs up to paragraph [41] my conclusions are as follows.

79    Contrary to the submissions on behalf of the respondent, I do not take into account for present purposes whether or not the proceedings have been brought “for a strategic political purpose”. Similarly, it may be that the form of the pleading is explained by the breadth of the applicants’ concerns but any reason for the form of the pleading is not a matter of present significance.

80    Paragraph [9] should be struck out either as adding nothing and, in that sense, being legally embarrassing or as failing to plead material facts rather than conclusions.

81    Paragraph [32] should be struck out as adding nothing and, in that sense, being legally embarrassing.

82    Paragraph [34] has a number of deficiencies. First, it seems reasonably clear that the respondent has not implemented all of the Boycott Calls. The applicants accepted this in the course of argument. This can be remedied either by limiting paragraph [14] to those parts that are relevant or by stating in paragraph [34] which Boycott Calls it is alleged the respondent has implemented. Secondly, what the respondent is alleged to have done personally and at CPACS should be separately pleaded. Thirdly, the acts of the respondent relied on should be clearly identified, particularly as the applicants appear to allege that a statement of policy is an act. Fourthly, if particular c is to be retained, the basis on which it is alleged that the documents, if signed, would or could have provided Professor Avnon access to a funded fellowship at Sydney University will have to be stated. Fifthly, if particular d is to be retained the material facts underlying the allegation that, I assume the respondent, “could properly or usefully sign” the application should be identified. Sixthly, if particular e is to be retained the policy referred to needs to be identified. I strike out paragraph [34] and grant leave to the applicants to replead.

83    Paragraph [35] has similar deficiencies to those I have identified as the first, second and third matters in relation to paragraph [34] and paragraph [35] also repeats the particulars of paragraph [34] which I have already considered. I strike out paragraph [35] and grant leave to the applicants to replead.

84    As to paragraph [36], again it seems reasonably clear that the respondent has not implemented all of the Boycott Calls and this can be remedied in the manner I have referred to in relation to paragraph [34]. Paragraph [36] repeats the particulars in paragraph [35] which in turn repeat the particulars in paragraph [34] and is therefore defective. That degree of cross referencing is, in my opinion, impermissible in the circumstances of this case since it obscures rather than states clearly the material facts. In my opinion particular e is also deficient in that the mere identification in a table of BDS forums featuring the respondent and a general statement that he publicly advocated participation in the BDS movement and repeated many of the Boycott Calls inadequately states the material facts on which the applicants rely. I make the same observation about particulars f, g and h. I strike out paragraph [36] and grant leave to the applicants to replead.

85    As to paragraph [37], it repeats the particulars of paragraph [36]. Again, the degree of cross referencing which I have held to be impermissible in relation to paragraph [36] is further compounded. It is also to be recalled that paragraph [37] founds the allegations of unlawful discrimination contrary to s 16 of the Racial Discrimination Act. As such it seems to me that the particulars, treating them as the statements of material fact, are inadequate as stated at too general a level. For example, particular b states in a general way the content of unspecified articles in the press but it must be the content that indicates or could reasonably be understood as indicating an intention to do an act that is unlawful, and thus unlawful by virtue of s 16. I strike out paragraph [37] and grant leave to the applicants to replead.

86    As to paragraph [38], it repeats the particulars of paragraph [37] and therefore, in my opinion, further compounds the degree of impermissible cross referencing. It is to be recalled that paragraph [38] in part founds the allegations of unlawful discrimination under s 17 of the Racial Discrimination Act in paragraphs [153] and following. In my opinion the acts said to constitute the incitement or the assisting or the promoting of an unlawful act should be clearly pleaded and the particulars to paragraph [38], including particular b, do not do this. I strike out paragraph [38] and grant leave to the applicants to replead.

87    As to paragraph [39], it repeats the particulars of paragraph [36(e)] concerning which I have made critical comment above. This paragraph also founds the allegation of unlawful discrimination under s 17 of the Racial Discrimination Act in paragraphs [153] and following and I repeat my observations in relation to paragraph [38] in paragraph [86] of these reasons. The particulars to paragraph [39], if treated as the statement of material facts, do not clearly plead the acts said to constitute the incitement or the assisting or the promoting of an unlawful act. I strike out paragraph [39] and grant leave to the applicants to replead.

88    As to paragraph [40], it also repeats the particulars of paragraph [36(e)] which I have criticised above. This paragraph founds the allegation of unlawful discrimination under s 17 of the Racial Discrimination Act in paragraphs [169] and following and I repeat my observations in relation to paragraph [38] above. The particulars to paragraph [40], if treated as the statement of material facts, do not clearly plead the acts said to constitute the incitement or the assisting or the promoting of an unlawful act. I strike out paragraph [40] and grant leave to the applicants to replead.

89    I also strike out paragraph [20] of the statement of claim for the reasons I have identified in [46] of my reasons above.

90    I do not strike out the paragraphs from [41] onwards insofar as they give a legal characterisation to the facts which are attempted to be pleaded in the earlier paragraphs to which I have referred.

91    I adopt the approach to construction of the Racial Discrimination Act taken by Allsop J (as his Honour then was) in Baird v Queensland (2006) 156 FCR 451; [2006] FCAFC 162 at [62]:

Nowhere in the broad terms of s 9(1) is there any indication that a necessary element for the engagement of the section is the existence of an obligation to do the act. To read into s 9(1) such an element would infuse a legalism and formality antithetical to the broad aims of the section and the Convention. The purpose of the Convention, which can be taken to be the purpose of the RD Act, was the elimination of racial discrimination in all its forms and manifestations — not merely as manifested by people who are obliged to act in a particular way. The RD Act and the Convention were directed to the real world.

(emphasis in original)

92    It follows, in my opinion, that a clear articulation of the facts remains essential but once the facts in the paragraphs up to paragraph [41] are pleaded adequately and then those paragraphs are treated as constituting the material facts relied on in respect of: the exclusions pleaded in paragraphs [42] and [58]; the restrictions pleaded in paragraphs [43] and [59]; the impositions pleaded in paragraphs [70], [76], [142] and [163]; the refusals pleaded in paragraphs [82], [84], [93], [95], [106], [111], [118] and [124]; and the supply pleaded in paragraph [104]; those paragraphs will be adequately pleaded in those respects.

93    I should note that the leave to replead should not be taken to be confined to the paragraphs of the statement of claim I have struck out if the applicants consider that other paragraphs could or should be amended in order to plead or plead more clearly the material facts. For example, the pleadings in relation to the alleged Boycott Calls need to differentiate between what the respondent is alleged to have done, on the one hand, and the alleged purpose or effect of doing those acts, on the other hand.

Conclusion

94    I make no order for costs in relation to the interlocutory applications for a maximum costs order and for security for costs as, taken together, the success of the applicants and of the respondent was about equal. I order that the applicants pay the respondent’s costs of and incidental to the interlocutory application to strike out the statement of claim. I order that the costs may be taxed immediately: see FCR r 40.13. I do so on the basis of the authorities reviewed in Spotwire Pty Ltd v Visa International Service Association (No 2) [2004] FCA 571 at [104]. In my view the statement of claim as presently framed answers the description of ill-considered and the applicants had sufficient notice of those defects. I also take into account that in the ordinary course of events the proceedings are unlikely to conclude for a number of months.

Associate:

Dated:     1 May 2014