Federal Court of Australia

Cassuto v Kostakidis (No 2) [2026] FCA 856

ORDERS

THE COURT ORDERS THAT:

1.    The time in order 1 of the orders made on 12 May 2026, by which the applicant is to make discovery of documents, be extended to a date to be fixed.

2.    The interlocutory application filed by the applicant on 2 June 2026 otherwise be dismissed.

3.    The interlocutory application filed by the respondent on 2 June 2026 be dismissed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    In this proceeding, the applicant, Alon Cassuto, alleges that the respondent, Mary Kostakidis, breached s 18C(1) of the Racial Discrimination Act 1975 (Cth) (RD Act) by making two posts on the social media platform X – the first on 4 January 2024 and the second on 13 January 2024 (Posts). In the first of the Posts, Ms Kostakidis reposted a post that had been made by another account on X, @CensoredMen, which included a link to a video of a speech made by the then leader of Hezbollah, Hassan Nasrallah, and added a brief comment of her own. In the second of the Posts, Ms Kostakidis reposted a post from a different account, @richimedhurst, which included a quote from the same speech by Mr Nasrallah and a link to the video.

2    In her defence, Ms Kostakidis admits that she made the Posts, but denies Mr Cassuto’s allegation that she did so because of the race, or national or ethnic origin, of Jewish Australians and/or Israeli Australians. She also relies on defences under s 18D(c)(i) and (ii) of the RD Act. In [22] of her defence, Ms Kostakidis denies Mr Cassuto’s allegation that he was insulted or offended by the Posts, and references the pleading in [29] of her defence. In [29] of her defence, Ms Kostakidis alleges that Mr Cassuto instituted the proceeding vexatiously, without reasonable cause and in bad faith, and pleads that so much is demonstrated by a combination of facts, including, most relevantly, that:

c.    on 14 July 2024, the Zionist Federation of Australia (ZFA) held a press conference prior to filing the AHRC Complaint (ZFA Press Conference);

Particulars

“Press conference with ZFA CEO Alon Cassuto and President Jeremy Leibler, 14 July 2024”, video posted by the Zionist Federation of Australia on YouTube, with the caption “In this press conference, ZFA CEO Alon Cassuto announces his intention to file an 18C complaint against Mary Kostakidis”.

d.    on 14 July 2024, the ZFA published an official statement that:

i.    itself quotes from Nasrallah’s speech in the Al Jazeera Broadcast;

ii.    itself contains a link to the 4 January Post, and thus to the Nasrallah Video; and

Particulars

“18C Action on Call for Ethnic Cleansing From the ‘River to the Sea’”, 14 July 2024.

iii.    remains on the ZFA website, as at the date of filing this Defence;

…

g.    the proceeding has been instituted as part of a deliberate campaign to undermine and discredit [Ms Kostakidis], a prominent Australian who, since 7 October 2023, has questioned and been critical of the conduct of the State of Israel in order to cause a chilling effect on her and others in relation to the same:

i.    on 6 December 2023, after [Ms Kostakidis] made a post on X on the same date, a member of a private WhatsApp group formed by Jewish creatives (Creative WhatsApp Group), wrote in the group chat, “what can we do!?”, to which another member replied, “Perhaps this is suitable for lawyers group, [mobile telephone number]?”

3    Both parties to the proceeding filed interlocutory applications seeking discovery of documents falling within identified categories. The interlocutory application for discovery filed by Mr Cassuto on 19 March 2026 and the amended interlocutory application for discovery filed by Ms Kostakidis on 30 April 2026 were each listed for hearing before a registrar of the Court on 11 May 2026, pursuant to a direction of the Court made in accordance with s 35A(1)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

4    On 12 May 2026, the registrar made orders requiring each of Mr Cassuto and Ms Kostakidis to make discovery of specified categories of documents. Neither party has challenged the order requiring Ms Kostakidis to make discovery. Both parties contend that the registrar’s order requiring Mr Cassuto to make discovery should be varied in particular ways. They have each applied for review of that order pursuant to s 35A(5) of the FCA Act. These are my reasons for my decision on the interlocutory applications for review of the registrar’s decision regarding the discovery to be made by Mr Cassuto.

The orders of the registrar and the parties’ contentions on the applications for review

5    The order made by the registrar on 12 May 2026 relating to the discovery to be made by Mr Cassuto was as follows:

1.    By 4:30pm on 9 June 2026 the applicant give the respondent discovery of:

1.1    Any sources upon which the applicant based his assertions of the:

a)    matters particularised at paragraph 7 of the Further Amended Statement of Claim (FASOC);

b)    statements particularised at paragraph 8 of the FASOC; and

c)    statements particularised in the fourth and fifth (unnumbered) particulars to paragraph 10 of the FASOC.

1.2    All documents recording any communications in the period 7 October 2023 to 14 July 2024 inclusive, referring or relating to Richard Medhurst or to any post on social media by Richard Medhurst (including but not limited to any post on the X account @richimedhurst, and on the YouTube channel @RichardMedhurst).

1.3    All documents recording any communications in the period 4 January to 14 July 2024 inclusive, referring or relating to:

a)    a press conference to be held by the Zionist Federation of Australia (ZFA) announcing a complaint to the Australian Human Rights Commission by the applicant against the respondent; and

b)    the preparation of the official statement published by the ZFA on 14 July 2024 “ZFA CEO Alon Cassuto files 18C complaint against Mary Kostakidis”.

1.4    All documents recording any communications in the period 7 October 2023 to 14 July 2024 inclusive, referring or relating to the respondent (including communications referring or relating to posts by her on the social media platform X).

6    Mr Cassuto contends that this order should be amended so as to:

(a)    extend the time for Mr Cassuto to make discovery to a date to be fixed;

(b)    delete the category of documents referred to in order 1.3, and

(c)    reduce the scope of the category referred to in order 1.4.

7    In response, Ms Kostakidis maintains that Mr Cassuto should be required to discover documents in each of those categories, as they are described in the registrar’s order.

8    Ms Kostakidis seeks an order requiring Mr Cassuto to give discovery of documents in an additional category, which is described as follows:

All communications sent and received by members of the “lawyers group” referred to in the message sent in the “Creative WhatsApp Group” on 6 December 2023 and referred to in the Defence at paragraph 29(g)(i), in the period 6 December 2023 to 14 July 2024 inclusive, referring or relating to the respondent.

9    In the alternative, Ms Kostakidis seeks an order requiring Mr Cassuto to give discovery of all documents in a category described as follows:

All documents recording communications sent and received by members of the WhatsApp group called “Lawyers for Israel”, in the period 6 December 2023 to 14 July 2024 inclusive, referring or relating to the respondent.

10    In response, Mr Cassuto contends that the registrar was right not to order discovery of documents in either of the categories formulated by Ms Kostakidis, and that discovery of those documents should not be ordered.

11    On 16 June 2026, I made an order staying order 1 of the registrar’s orders, pending determination of the interlocutory applications for review of that order.

Relevant legal principles

12    Pursuant to s 35A(5) of the FCA Act, a party may apply to the Court for review of a decision made by a registrar under s 35A(1). A review of a registrar’s decision is a complete de novo review on the merits: see, eg, Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 (Bechara) at 169-70 [1]-[5]. Accordingly, it is not necessary to show that there was any error in the registrar’s exercise of power. The Court must simply make such orders as it thinks fit with respect to the power that was exercised by the registrar: FCA Act, s 35A(6).

13    In exercising the broad discretion to make orders for discovery, the Court “will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents”: United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116 at [3]. Consistently with the terms of r 20.11 of the Federal Court Rules 2011 (Cth), the Court should not make an order for discovery “unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible”.

14    In this case, the parties have agreed to proceed by identifying categories of documents of which discovery should be made, rather than making “standard discovery” as defined in r 20.14 of the Federal Court Rules. In Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696 at [16], Colvin J said:

… if discovery by category is to be pursued, it is to be expected that, in the usual case, the categories will be shown to be narrower than what would be required for standard discovery (and thereby duly confined to that which will facilitate the just resolution of the proceedings) or that there is some particular reason why disclosure of the particular category is appropriate. In other words, the provision in the Rules for an application for discovery with a “proposed scope” is not intended to undermine the position that (a) discovery should only be ordered where it has been shown to facilitate the just resolution of the proceedings; (b) it is direct relevance that is the guiding principle; and (c) if discovery other than standard discovery is sought then the scope must be specified (and justified).

15    The applicant for discovery bears the onus of satisfying the Court that the order for discovery that is sought should be made. On an application for review of a registrar’s decision, the onus remains the same: Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143 (Robson) at 510 [63].

16    Orders for discovery will not be made if the application for discovery amounts to “fishing”. In Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426, Lindgren J explained the meaning of a “fishing expedition” in this context, as follows (at 438):

… What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd; WA Pines Pty Ltd v Bannerman; Barbarian Motor Cycle Club Inc v Koithan (1984) 35 SASR 481 at 486; Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78 at 82-83; Mobex Pty Ltd v Comptroller-General of Customs (unreported, Federal Court, Foster J, 18 May 1994), at p 18. In WA Pines Pty Ltd v Bannerman at 181, Brennan J said that what is required is that “sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery”.

17    In Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (No 2) [2017] FCA 393 at [5], Gleeson J described “fishing” as seeking “evidence to support a claim which is essentially speculative in nature”. Her Honour explained (at [7]) that “[g]enerally, a fishing objection should not be permitted to succeed to the extent that it prevents a party from obtaining the material that is necessary for a fair trial”. In Jilani v Wilhelm (2005) 148 FCR 255; [2005] FCAFC 269 at 273 [111], the Full Court of this Court said (by reference to WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 and Lloyd v Costigan (No 2) (1983) 82 FLR 104) that “it is not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation”.

18    Although the precise formulations used in these cases differ, the authorities suggest that the relevant distinction is between discovery that is sought in order to find evidence for a case which is speculative, in the sense that the party pleading it currently has no real basis for it beyond bare speculation, and a case for which “there is already some evidence”, even if that evidence is relatively weak, or depends on inferences that may, on the basis of the evidence already available, be doubtful.

The claims to which the relevant discovery categories relate are not merely speculative

19    Mr Cassuto is the Chief Executive Officer (CEO) of the Zionist Federation of Australia (ZFA). While this proceeding has been brought by Mr Cassuto, and not by the ZFA, it is apparent that the pursuit of the proceeding is consistent with the objectives of the ZFA, and that it was instituted with the knowledge and support of other persons associated with the ZFA. So much is demonstrated by the fact that, on 14 July 2024, Mr Cassuto held a press conference together with the President of the ZFA, Jeremy Leibler, at which it was announced that Mr Cassuto intended to file a complaint with the Australian Human Rights Commission (AHRC complaint) in relation to the Posts which are now the subject of this proceeding (ZFA press conference). In the course of the ZFA press conference, Mr Leibler expressed support for Mr Cassuto and his decision to lodge the AHRC complaint, and fielded questions from journalists about the reasons why the AHRC complaint was being made. The AHRC complaint was made later the same day. Also on the same day, an official statement was published by the ZFA (ZFA official statement). The ZFA official statement quotes from and links to the video of the speech made by Mr Nasrallah which Ms Kostakidis shared through the Posts. The ZFA official statement remains publicly available on the website of the ZFA.

20    Ms Kostakidis relies on the calling and timing of the ZFA press conference, what was said during the press conference, and the content and enduring availability of the ZFA official statement, in combination with a number of other matters, as the basis for her plea that Mr Cassuto instituted the proceeding in order to cause a chilling effect on Ms Kostakidis and others who are critical of actions of the state of Israel.

21    Ms Kostakidis relies, in particular, on the fact that the ZFA press conference was held before the filing of the AHRC complaint, and that both the ZFA press conference and the ZFA official statement referred to and quoted from the speech that was the subject of the Posts. She also relies on the fact that, at the ZFA press conference, Mr Leibler said that the soon-to-be filed AHRC complaint was:

… really about sending a message as well to hold [Ms Kostakidis to] account, someone with a very significant platform who we believe is misusing her platform. But I would hope that this would send a message to all Australians that we cannot bring this sort of hate speech from the other side of the world. And so we hope that with this action, a very strong message will be sent that this sort of hate speech is simply unacceptable.

22    I accept that the circumstances, including things said at the ZFA press conference, are open to an interpretation that is capable of supporting the inference for which Ms Kostakidis contends, regarding the purpose of the AHRC complaint and, in turn, the proceeding. Whether that inference should be drawn, and whether a finding that the AHRC complaint and the proceeding were instituted in the hope of creating a chilling effect, if made, leads to or otherwise supports the further conclusions for which Ms Kostakidis contends – (a) that Mr Cassuto did not institute the proceedings because he himself felt offended or insulted by the posts, or because the posts were reasonably likely to offend members of the relevant groups, and (b) that the proceedings were commenced vexatiously, without reasonable cause or in bad faith – and whether those further inferences should be drawn, are matters to be assessed in the context of the evidence and submissions adduced at trial.

23    The three aspects of the discovery applications which are in dispute between the parties each relate to the plea, in [29] of Ms Kostakidis’s defence, that the present proceeding was instituted by Mr Cassuto “vexatiously, without reasonable cause and in bad faith”. Ms Kostakidis relies on that plea as a basis on which Mr Cassuto’s application for relief should be dismissed at trial. The matters pleaded in [29] are also among the matters relied on by Ms Kostakidis in support of the plea in [22] of her defence, that Mr Cassuto himself was not offended or insulted by the Posts. Mr Cassuto submits that this is a speculative claim, that the application for discovery is made in an attempt to obtain evidence to justify the claim, and that it amounts to “fishing”.

24    While the claim in [29] of the defence depends on inferences to be drawn from a combination of diverse facts, Ms Kostakidis has identified the factual basis on which she advances the claim. Based on the facts pleaded in the subparagraphs of [29], I do not think the claim that the proceeding was instituted vexatiously, without reasonable cause and in bad faith should be characterised as purely speculative. The matters pleaded by Ms Kostakidis, taken in combination, are rationally capable of supporting the inference which she contends the Court should draw, and the affidavit evidence filed by Ms Kostakidis in support of her application for discovery demonstrates that she has some evidence of those matters. It is not appropriate to form or express any further view at this stage about the strength of the inferences on which this aspect of Ms Kostakidis’s pleaded case relies, which will depend on the evidence led at trial, considered in the context of all the circumstances.

25    While there is some rhetorical force in the point made by Mr Cassuto, that Ms Kostakidis earlier brought a wide-ranging application to strike out his statement of claim but did not, in that application, contend that Mr Cassuto had instituted the proceeding vexatiously, without reasonable cause and in bad faith, I am not prepared to find that that shows that Ms Kostakidis has no basis to make that contention. First, the threshold of information that a party is required to have in order to properly plead a claim, and to obtain discovery of documents relevant to that claim, is different from evidence sufficient to establish it on the balance of probabilities, which is the burden Ms Kostakidis would have assumed had she applied to strike out the statement of claim on the basis that the proceeding was instituted vexatiously, without reasonable cause and in bad faith. Secondly, and in any event, the genuineness of the claim for present purposes falls to be assessed on the basis of Ms Kostakidis’s pleading (which had not been prepared at the time of the strike-out application) and the evidence adduced by Ms Kostakidis on her application for discovery (some of which may not have been available to her earlier).

26    The plea in [29(g)(i)] of Ms Kostakidis’s defence was a focus of attention in the submissions of the parties. That plea relates to a message sent to a particular WhatsApp group for Jewish creatives and academics (Creatives WhatsApp group) which suggested that there existed another WhatsApp group, the members of which include lawyers who are supportive of Israel. Ms Kostakidis alleges that Mr Cassuto commenced the present proceeding in order to advance a strategy or campaign which had been discussed in the latter WhatsApp group. In the end, because of the view I take of the scope of order 1.4 of the orders made by the registrar, and as explained further below, I have not found it necessary to make factual findings about the lawyers’ WhatsApp group, its likely membership and its possible relationship (if any) to Mr Cassuto, or to decide whether Ms Kostakidis’s application for discovery in relation to a specific category of documents regarding certain messages sent in that WhatsApp group involves too great a degree of speculation.

Materials relating to the ZFA press conference and the ZFA official statement

27    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 conduct of the ZFA press conference and the circumstances surrounding it are capable of sustaining an inference that the ZFA and Mr Cassuto were “courting publicity” for Mr Cassuto’s AHRC complaint and, in that context, were concerned to draw attention to the Posts, including at the cost of drawing attention to the very content by which Mr Cassuto claims to have been offended and insulted.

28    Those matters, when considered together with other pleaded circumstances, may be capable of sustaining an inference regarding Mr Cassuto’s motivation for commencing the proceeding. This is a pleaded issue which is relevant to the interrelated contentions, made in Ms Kostakidis’s defence, that Mr Cassuto was not offended or insulted by the Posts and that he commenced the proceeding vexatiously, without reasonable cause and in bad faith. Mr Cassuto properly (and consistently with the position taken by him earlier in this proceeding) accepts that the question of whether he personally was offended or insulted, although not itself an element of the cause of action created by s 18C of the RD Act, is relevant to the question of whether the relevant acts were reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people: see Cassuto v Kostakidis [2025] FCA 1226 at [92]. The conclusions to be drawn about Mr Cassuto’s reasons for instituting the proceeding, and whether proof of a particular motivation suffices to demonstrate that the proceeding was instituted vexatiously, without reasonable cause and/or in bad faith, are, as I have already said, issues to be considered at trial.

29    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. Documents referring or relating to the ZFA official statement and the ZFA press conference are also likely to reference, or otherwise provide evidence of, the state of mind of Mr Cassuto when making the AHRC complaint and, in turn, when commencing this proceeding.

30    I am satisfied that the category of documents referred to in order 1.3 of the orders made by the registrar is likely to be directly relevant to the issues, that the category is not unduly broad, and that it is appropriate to require discovery of documents in that category by Mr Cassuto. For these reasons, I would make no change to order 1.3.

31    I do not think that the category of documents described by order 1.3 is too broad, even considering that there may be some documents falling within the category which were not directly sent to or received by Mr Cassuto himself. It is prima facie probable that documents relating to the ZFA press conference or the ZFA official statement were prepared for purposes that were consistent with, and not distinct from, Mr Cassuto’s own purposes in making the AHRC complaint and drawing public attention to it, or that communications relating to the ZFA conference and/or the ZFA official statement occurred without Mr Cassuto’s knowledge, direction or oversight.

32    In the course of submissions, it was acknowledged by Mr Cassuto that the category of documents referred to in order 1.3 was likely to overlap substantially, if not wholly, with the documents in order 1.4. I think that is so, because the ZFA press conference and the ZFA official statement relate to the AHRC complaint, which in turn relates to the conduct of Ms Kostakidis in making the Posts. Nevertheless, I would still make no change to order 1.3; first, because it serves to make clear that the documents for which a search is to be conducted should extend to documents referring or relating to the ZFA press conference and the ZFA official statement, even if some of those communications might not be captured by a search referencing only Ms Kostakidis or the Posts, and secondly, because the additional effort required to ensure that those documents are discovered will be slight.

Narrowing of the order for discovery of documents recording communications referring or relating to Ms Kostakidis and posts by her on X

33    Mr Cassuto does not dispute the appropriateness of ordering discovery of a category of documents by reference to the description “documents recording any communications … referring or relating to [Ms Kostakidis] (including communications referring or relating to posts by her on the social media platform X)”. However, he contends that the category of documents referred to in order 1.4 of the orders made by the registrar should be narrowed in two respects – first, by confining the date range of the communications captured by the category so that it begins on 4 January 2024 (the date of the first of the Posts) rather than 7 October 2023, and secondly, by limiting the category of documents to communications that were sent to or received by Mr Cassuto.

34    As to the date range, Mr Cassuto does not dispute that documents to which he was a party, in the period starting from 4 January 2024, are directly relevant to the issue of whether he was insulted or offended by the Posts. He submits that records of communications which pre-date the first of the Posts cannot be relevant to that issue.

35    Ms Kostakidis submits that the powers of the Court under s 35A(6) of the FCA Act “do not extend to making an order that [Mr Cassuto] did not seek before the Registrar”, and that “[a]s the start date of 7 October 2023 was agreed between the parties, that date was not examined by the Registrar and cannot now be re-examined by the Court”. The matters that the registrar was directed to determine were the interlocutory applications for discovery filed by Mr Cassuto and Ms Kostakidis, by which each of them sought orders for discovery from the other. I am inclined to think that, even if a concession was made before the registrar in relation to the dates referred to in one category of discovery, that would not preclude Mr Cassuto seeking review of the order that the registrar actually made (and arguing for a different order on review) – whether to make a discovery order at all, and the terms of any such order, were within the scope of the matters which the registrar was directed to determine: see Robson at 510 [63].

36    I also doubt that the Court hearing a review of a registrar’s decision could be prevented, as a matter of power, from making an order that was inconsistent with a concession made before the registrar, including for the constitutional reasons underlying the provision for de novo review of orders made by registrars under s 35A of the FCA Act: see Bechara at 171-2 [17]. The stance that was taken by a party before a registrar might nevertheless be relevant to the exercise of the Court’s discretion on review of a registrar’s decision.

37    It is not necessary to express a final view about these matters because, considering the issue for myself, for the reasons that follow, I would not vary order 1.4 of the orders made by the registrar in any event.

38    Ms Kostakidis advances a submission in the following terms:

… [T]he 7 October 2023 start date is relevant to an issue raised by the pleadings. The respondent has pleaded that the applicant has instituted the proceeding “as part of a deliberate campaign to undermine and discredit the Respondent, a prominent Australian, who, since 7 October 2023, has questioned and been critical of the conduct of the State of Israel” (Defence, [29(g)] … ). The respondent has articulated a case that the applicant brings this proceeding because, since 7 October 2023, she has been critical of Israel’s conduct, a case that the applicant denies (Reply, [5(b)(iv)]). The documents captured by order 1.4, with the 7 October 2023 start date, are relevant to this issue between the parties.

(Emphasis inserted by Ms Kostakidis.)

39    I accept this submission. In support of his plea that Ms Kostakidis acted with a state of mind relevant to s 18C of the RD Act, Mr Cassuto relies on inferences which he contends should be drawn from other posts made by Ms Kostakidis on X, the first of which was made on 10 October 2023. The content of those other posts is relevant to establishing Ms Kostakidis’s state of mind when she engaged in the acts of making the Posts that are the subject of this proceeding. Equally, communications in Mr Cassuto’s control which relate to Ms Kostakidis and her activity on X from 7 October 2023 are also relevant to Mr Cassuto’s state of mind, including, in particular, the issue of whether he was offended or insulted by the two Posts which are the focus of the proceeding, and his motivations for instituting the proceeding.

40    Communications that pre-date the first of the Posts are capable of being directly relevant to these issues. To take one example, and without making any assumption about the existence or actual content of any communications that might exist, 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 because of her activity on X (that is, to use the words of a submission made on behalf of Ms Kostakidis, that Ms Kostakidis was “in the sights of a campaign”), then that may support an inference that Mr Cassuto was not personally offended by the Posts.

41    The date of 7 October 2023 is of evident relevance to the issues between the parties. It is, notoriously, the date of an attack on the state of Israel by Hamas. In his further amended statement of claim, Mr Cassuto pleads that the attack occurred, and that, “[s]ince the October 7 Attack, [Ms Kostakidis] has posted on X about Israel and/or Jews”, and he annexes examples of such posts. Given Mr Cassuto’s evident concern about Ms Kostakidis’s posts from (or from shortly after) 7 October 2023, communications between 7 October 2023 and 4 January 2024 relating to Ms Kostakidis are likely to provide relevant evidence of Mr Cassuto’s state of mind. I do not consider that it would be oppressive to require Mr Cassuto to give discovery of documents involving communications made in the period between 7 October 2023 and 4 January 2024 which relate to Ms Kostakidis or her posts on X.

42    For these reasons, I would not vary the date of 7 October 2023 as it appears in order 1.4 of the orders made by the registrar.

43    Mr Cassuto contends that documents that were not sent or received by him cannot be relevant to the issues of whether Mr Cassuto personally felt offended or insulted by the Posts. The evidence filed in relation to the interlocutory applications for discovery establishes that Mr Cassuto, as the CEO of the ZFA, has access to the books, records, files and documents of the ZFA, and he contends that an order for discovery that is not limited to communications which were sent or received by him would be oppressive. The evidence adduced by Mr Cassuto about the amount of work involved in searching for such documents, or the amount of work over and above that involved in complying with the more limited order for discovery that he seeks, is not precise, and is contingent on several uncertain circumstances.

44    Mr Cassuto submits that he has brought the present proceeding in his personal capacity. While I accept that that is so, it does not follow that Mr Cassuto is not, through the proceeding, also pursuing the interests of the ZFA or, at least, personal interests of his own that align with the stance of the ZFA. Nor does it follow that Mr Cassuto is not acting pursuant to a strategy devised by him in association with other persons, which may include other officers of the ZFA – most notably Mr Leibler, who expressed support for Mr Cassuto at the ZFA press conference and was evidently aware of the AHRC complaint before it was made. 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, suggest 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.

45    I accept that documents which are in Mr Cassuto’s control, but which record communications in which he was not personally involved, and which he may never have personally received, may still be directly relevant to the issues that arise on [22] and [29] of Ms Kostakidis’s defence. Ms Kostakidis pleads that the proceeding is part of a campaign designed to have a chilling effect on criticism, by her and others, of the actions of Israel. That in turn is said to support inferences that Mr Cassuto was not in fact offended or insulted by the Posts and that the proceeding was instituted vexatiously, without reasonable cause and in bad faith. Evidence which tends to suggest that persons close to Mr Cassuto (including, in particular, persons working in or communicating with a relatively small organisation of which Mr Cassuto is the CEO and which has objects that are consistent with the apparent objects of the proceeding) were involved in a campaign of the kind pleaded by Ms Kostakidis would, in my view, be directly relevant to the issue of whether the proceeding was instituted as part of such a campaign. Evidence that there was such a campaign involving persons who have a relatively close connection with Mr Cassuto, whether through the ZFA or otherwise, would be directly capable of proving one necessary step of Ms Kostakidis’s pleaded case (ie, that a campaign of that kind, which could have informed Mr Cassuto’s reason or reasons for instituting the proceeding, was in existence) and could potentially also support an inference that Mr Cassuto was acting pursuant to, or in order to advance, a campaign.

46    In my view, the category of documents described by order 1.4 of the registrar’s orders provides a reasonably tailored and clear description of a category that would result in the production of documents of this kind. I accept that the category may have the potential to capture some communications about Ms Kostakidis and her posts on X which are not ultimately probative of Mr Cassuto’s state of mind or the existence of a strategy or campaign pursuant to which he might have been acting – for example, emails about Ms Kostakidis which were sent to email accounts of employees of the ZFA other than Mr Cassuto, which were never discussed with him personally. However, it would be impossible to formulate a more tailored description of a relevant category of documents which would capture documents that could be directly probative of the issues pleaded in [22] and [29] of Ms Kostakidis’s defence, which did not also give rise, inappropriately, to a need for those making discovery to make an evaluative judgment as to whether particular documents evidence a strategy or campaign pursuant to which Mr Cassuto might have been acting.

47    Mr Cassuto relies on the limited resources and small size of the ZFA in support of a submission that it would be oppressive or disproportionate to order discovery which would require him to conduct a search of the holdings of the ZFA, over which he has control. No detail is provided about the resources of the ZFA. This is a consideration that cuts both ways, however. The smaller the organisation, the more likely that documents held by it will be probative of the state of mind of its CEO, and so the more proportionate discovery of this category of documents will be.

48    This proceeding has been commenced by Mr Cassuto. While they relate to only two posts on X, the circumstances which Mr Cassuto has pleaded as relevant to the issues are broad, and the parties have estimated a trial of at least two weeks. While I am generally prepared to accept and act on the evidence regarding the estimated amount of work involved in Mr Cassuto making discovery, weighing everything up, I do not consider that the work required would be disproportionate to the proceeding.

49    For these reasons, on balance, I am satisfied that ordering the discovery of the documents described in order 1.4 of the registrar’s orders is appropriate to enable Ms Kostakidis to obtain material that is necessary for a fair trial, and will facilitate the just and efficient resolution of the proceeding.

Alternative categories of documents recording communications in a WhatsApp group

50    Ms Kostakidis seeks discovery from Mr Cassuto of all communications sent and received by members of the “lawyers group” which was referred to in a message sent in the Creatives WhatsApp group on 6 December 2023 or, in the alternative, by members of a WhatsApp group specifically identified by the name “Lawyers for Israel”. Ms Kostakidis contends that it should be inferred that these (“lawyers group” and “Lawyers for Israel”) are both references to the same group. For this contention, she relies principally on media reports which identify “Lawyers for Israel” as the name of a WhatsApp group, and which suggest a connection or coordination between the members of the Creatives WhatsApp group and the “Lawyers for Israel” WhatsApp group to target another prominent Australian journalist who had made statements critical of Israel.

51    The submissions of both parties in relation to this group of documents mainly centred around whether Ms Kostakidis’s suppositions that:

(a)    either Mr Cassuto himself or persons closely associated with him, including Mr Leibler or one or more of the solicitors acting for him in this proceeding, were likely to be members of the “Lawyers for Israel” WhatsApp group;

(b)    that there was likely to have been discussion in that group of a strategy or campaign to target Ms Kostakidis;

(c)    Mr Cassuto was acting pursuant to any such strategy or campaign in instituting the proceeding; and

(d)    that there was reason to believe that Mr Cassuto was likely to have, within his control, records of the messages in the “Lawyers for Israel” WhatsApp group,

were sufficiently well founded, on the evidence presently available to Ms Kostakidis, to warrant the ordering of discovery from Mr Cassuto by reference to a category of documents described by reference to the particular WhatsApp group, however described. The submissions also extended to the question of whether, in the event that any of the solicitors acting for Mr Cassuto were members of the “Lawyers for Israel” WhatsApp group, messages sent and received in that group would be within Mr Cassuto’s power on the basis that he would be entitled to require his solicitors to produce them to him.

52    Mr Cassuto rightly accepts that documents of the kind described in order 1.4 constitute an appropriate category for discovery (albeit that he has submitted that the category should be limited in particular ways as discussed above). The effect of order 1.4 of the orders made by the registrar (which will be confirmed for the reasons given above) is that Mr Cassuto will be required to make discovery of all documents, which are or have been in his control, which record communications made between 7 October 2023 and 14 July 2024, and which refer or relate to Ms Kostakidis or her posts on X. Notably, that will necessarily include any record of any WhatsApp message which refers to or relates to Ms Kostakidis or her posts on X, which is or has been in Mr Cassuto’s control.

53    The requirement that documents in the category described by order 1.4 be documents “referring or relating to the respondent (including communications referring or relating to posts by her on the social media platform X)” is in substance the same as the limitation placed upon the two alternative categories of documents discovery of which Ms Kostakidis seeks specifically in relation to the WhatsApp group (namely “referring or relating to the respondent”). The only apparent practical reason to make one of the additional discovery orders sought by Ms Kostakidis would be to draw attention to communications sent and received in a WhatsApp group as a particular kind of “document” to which discovery obligations apply – but that is, in any event, clear enough.

54    In these circumstances, it is not necessary to determine whether the basis on which Ms Kostakidis seeks to target the “Lawyers for Israel” WhatsApp group, in particular, is itself sufficiently well-founded to be characterised as more than merely speculative. I think it is preferable not to determine that issue, because the benefits of ordering discovery by Mr Cassuto of documents in that additional category are, at best, elusive, and also because further consideration of the arguments on which the parties relied may well involve the Court making an unnecessary preliminary determination, albeit only at a low “threshold” level and based on limited evidence, of matters that may be in issue at trial.

55    For these reasons, I would decline to make an additional order for discovery in the terms of either of the alternative formulations advanced by Ms Kostakidis.

56    It is also unnecessary for present purposes to determine the question of whether any WhatsApp messages which might be in the possession of Mr Cassuto’s solicitors would be within Mr Cassuto’s control. I was not taken to any specific authority concerning the entitlement of a client to require the production of documents held by their solicitors, including documents which may have come into their possession in their personal capacities and not by reason of their engagement by the client. It seems undesirable to determine that issue in the abstract in any event. The obligations of discovery will oblige Mr Cassuto and his solicitors to consider for themselves, and reach a view about, which documents are properly within his control. What should be clear is that Mr Cassuto is, by reason of order 1.4 of the orders made by the registrar, obliged to make discovery of any WhatsApp messages that are, or have been, in his control, and which relate or refer to Ms Kostakidis, including communications referring or relating to posts by her on X.

Conclusions

57    For the reasons I have given, I would not vary orders 1.3 or 1.4 of the orders made by the registrar. I also would not make either of the two alternative additional discovery orders sought by Ms Kostakidis. The date by which Mr Cassuto was originally ordered to make discovery has now passed. The time should be extended, so as to allow him a reasonable period from the delivery of these reasons to comply with the registrar’s orders.

58    It follows that, apart from the making of an order extending the time fixed by order 1 of the orders made by the registrar on 12 May 2026, both of the interlocutory applications for review of the registrar’s orders should be dismissed.

Associate:

Dated:    3 July 2026