The lawyer representing Sydney University academic Jake Lynch has argued the Israeli legal group that brought a Racial Discrimination suit against him has not provided sufficient evidence that it can pay his legal costs.
In a pre-trial hearing in the Federal Court on Tuesday, Lynch’s lawyer Yves Hazan argued that none of the individuals listed as applicants for legal centre Shurat HaDin had proven to the court they are able to pay costs in the event that a court order were given for them to do so.
Hazan said that Andrew Hamilton — who is listed as an applicant as well as being the group’s lawyer — was the closest of any of the applicants to being an Australian resident, having moved from Australia to Israel in 2008, but that “the height of what he claims is that he has ties in Australia”.
Hazan argued that the burden of proof was on Hamilton to show that the value of his assets in Australia — most significantly a property in Coogee — could cover Lynch’s costs given there was “no adequate evidence that a cost order could be enforced in Israel”.
The issue of Shurat HaDin’s capacity to pay costs was particularly important in the case, Hazan said, as the group had in the past used litigation to cause financial damage to defendants.
Hamilton was not able to respond to Hazan’s concerns regarding costs before the court was adjourned late in the day. He will be given the opportunity to do so when the court reconvenes next month.
Shurat HaDin brought the Racial Discrimination action against Lynch in October last year after he refused to endorse a fellowship application for Hebrew University academic Dan Avnon, due to his participation in the Boycott, Divestment and Sanctions (BDS) movement against Israeli settlements in the West Bank.
Before the case began, Hamilton told NM it would test the legality of BDS in Australia.
“If the Court were to grant the full extent of our requested orders BDS would effectively become outlawed in Australia,” he said.
At recent hearings, Justice Alan Robertson has made rulings on the admissibility of evidence submitted by Shurat HaDin, and ordered that Hamilton disclose details of his assets to demonstrate he is able to cover Lynch’s legal costs.
There was additional debate on Tuesday around the clarity of Shurat HaDin’s statement of claim. Hazan sought to have large sections of the claim struck out on the grounds that they were overly vague and general.
Hazan argued that the statement of claim contained a “level of generality that sends the reader on a search for the facts because [it]does not state the facts”.
“This pleading is completely infected with this kind of general narrative,” he told the court.
Hamilton protested Hazan’s requests for sections of the statement of claim to be stuck out, and rejected assertions that references to the “BDS movement” and “boycott calls” were overly general.
He submitted that “everything [Lynch] has done is because of his support for the BDS movement,” and that references to BDS in the statement of claim were necessary for “providing the background”. This did not undermine the “material facts” of Shurat HaDin’s claim, he said.
Hamilton was frequently interrupted by Justice Robertson, who said the case had been “bedevilled” by “an inordinate fascination with the difficult questions before we get to the easier questions”.
“One needs to start with simpler facts before adding on complexities,” Robertson said.
The case has been adjourned until 24 April.
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