A racial discrimination lawsuit against Sydney academic Jake Lynch over his support for a boycott of Israel has been partly struck out by a federal court judge.
Judge Alan Robertson made the order to strike out part of the statement of claim against Lynch on Thursday in Sydney, giving the applicants, who include the controversial “lawfare” centre Shurat HaDin, permission to revise the statement and file it again.
He ordered the applicants, who include the lawyer arguing the case, Andrew Hamilton, to pay Lynch the costs involved in securing the strikeout order. He said the costs should be paid immediately rather than at the conclusion of the case.
Robertson also ordered that Hamilton, Shurat HaDin and the three other Israel-based applicants undertake not to dispose of their Australian assets without notifying Lynch, to ensure that the Sydney University professor could recover costs if he won the case.
He said that costs awarded to either party at the end of the case would be capped at $300,000, subject to further orders.
Lynch’s solicitor, Yves Hazan, had previously argued that the statement of claim filed against his client was “completely infected with … general narrative”, rather than material facts, and that it failed to explain exactly how Lynch’s conduct had breached laws against racial discrimination.
The orders were welcomed by Lynch. “Today’s judgements are a blow to Shurat HaDin’s stated aim of outlawing BDS in Australia,” he said.
An academic boycott of Israel was a symbolic way to offer solidarity with the Palestinian cause, he added. “This case is crucial to our ability to offer that solidarity from Australia.”
Hamilton said that overall the judge’s orders were “a good result”. “Our cost-capping order was granted, albeit at a higher figure than we had originally sought,” he said.
“Only a small portion of our statement of claim was struck out, 10 paragraphs out of 171, and the judge gave us a great deal of assistance in how to re-plead them to make the facts clearer.”
The case alleges that Lynch, a supporter of the anti-Israel boycott, divestments and sanctions (BDS) movement, engaged in unlawful racial discrimination by refusing to endorse a scholarship application from Hebrew University professor Dan Avnon.
Lynch said he was bound by BDS not to sign Avnon’s form because Hebrew University has a campus in the occupied West Bank and links to the Israel Defence Force. BDS is designed to non-violently pressure Israel over its continuing occupation of Palestinian territories.
The applicants argue that by promoting the movement, Lynch is contributing to discrimination against Jewish people, businesses and organisations around the world, and are seeking a public apology.
Earlier on Thursday, Hamilton told the court that if he and the other applicants were ordered to provide “prohibitive” security for costs, it would “send the message that it’s okay to engage in racial discrimination as long as your targets don’t live in Australia”.
He said the applicants were already being discriminated against because of their national origin and that having to provide security for costs because they lived overseas “would create a double discrimination”, in breach of Australia’s human rights obligations.
But Lynch’s solicitor, Yves Hazan, said there was no reason why an order to provide security for costs should stifle the litigation.
“This is a very sophisticated litigant, the most sophisticated and professional litigant I’ve come across in my career,” Hazan said, referring to Shurat HaDin.
“This is a global litigant that boasts of having a billion-dollar record and financially damaging their opponents. They take on large targets. So there’s not going to be any stifling.”
He dismissed the idea that security for costs orders were in breach of international human rights treaties. “The plain fact is that Australia has international obligations, and it puts those into effect … And nowhere do we see a statement that in any way circumscribes the court’s discretion to order security,” he said.
Hamilton also moved to cap the costs that either party could be awarded at a maximum $100,000, pointing to an email from Lynch, the director of the Centre for Peace and Conflict Studies at Sydney University, to the centre’s mailing list, thanking the more than 300 people who had contributed to his defence fund.
“[Lynch] has an incentive to run up costs in order to increase his funding, because as long as he appears to be doing well and delaying the case, he’ll continue to get funding,” Hamilton said.
He said that if the case was “derailed” by questions over costs, it would be “an indictment on the Australian legal system”.
Since its first hearing in February, the case against Lynch has remained stuck on questions over costs and other legal technicalities, clearly frustrating judge Robertson. “The zeal with which all tiny points are pursued in this case is really something that needs to be controlled,” he told the solicitors on Thursday before he made his orders.
The applicants have 28 days to file a new statement of claim.
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