Court Rejects Bid to Narrow Discovery in Kostakidis Case

Cassuto also attempted to narrow the discovery of communications he made about Kostakidis to January 4, 2024, rather than October 7, 2023. The judge rejected that application, holding that communications dating back to October 7 could be relevant to Cassuto's state of mind and his reasons for commencing the proceedings.

"If there were 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 … then that may support an inference that Mr Cassuto was not personally offended by the Posts," Justice McDonald wrote.

Evidence suggesting people associated with the ZFA had discussed or coordinated such a campaign would be "directly relevant" to determining whether the proceedings had been instituted for that purpose, he said.

Kostakidis's defence argues the proceedings were instituted "vexatiously, without reasonable cause and in bad faith" as part of a campaign intended to deter criticism of Israel. The judge found Kostakidis had identified a factual basis for her allegations and that, although they depended on inference, they were "not merely speculative."

Justice McDonald also rejected Kostakidis's application for an additional discovery order requiring production of communications from the "Lawyers for Israel" WhatsApp group. Kostakidis's legal team argued it was likely either Cassuto or one or more of the solicitors acting for him were part of the group and "there was likely to have been discussion in that group of a strategy or campaign to target Ms Kostakidis."

The judge declined to make the additional order, finding "the benefits of ordering discovery by Mr Cassuto of documents in that additional category are, at best, elusive."

A three-week trial is scheduled to commence in the Federal Court on November 30.