The Australia Council is attempting to get a court order that may force an artist to stump up a down payment on its sizeable legal costs, in a two-year court battle over the national arts funding body dropping its support for a performance documenting self-insemination.
Lawyers for the performance artist Casey Jenkins told the federal court the council’s application for a “security for costs” order appeared to be based on a cynical and misguided premise, and the body was covered by commonwealth government insurance to fight the case.
Jenkins, who uses they/them pronouns, is suing the Australia Council in the federal court for withdrawing funding for the performance exhibition Immaculate in 2020, in which they intended to livestream their monthly attempts to become pregnant.
The decision to withdraw funding was discriminatory, argued Jenkins, who is seeking costs and damages.
In 2020, Jenkins received $25,000 in funding from the council for an international project.
When the pandemic closed international borders, they were granted an amendment to the funding so that it could be used for Immaculate, a live stream of them self-inseminating with donated sperm while discussing their past experiences with conception. They said the project aimed to confront stigmas against queer pregnancy and parenting in the art world.
The amendment was rescinded by the council in a letter sent in September 2020, soon after the project was criticised by rightwing commentators including Peta Credlin and Dr Bella D’Abrera of the Institute of Public Affairs.
The court is hearing submissions regarding two applications this week ahead of a possible trial.
Lawyer Emrys Nekvapil, for Jenkins, told judicial registrar Amelia Edwards on Thursday that an application filed by the Australia Council seeking a costs security order occurred in the context of the artist not being able to pay, and the respondent being able to pay “as much as it costs”, given it was covered by commonwealth insurance, to fight the case.
The order would specify the maximum costs that may be recovered for the proceeding and could result in Jenkins having to make a security payment.
Nekvapil said there was no incentive for them to agree to the order, despite submissions by Meg O’Sullivan KC, for the Australia Council, that it could benefit Jenkins by fast-tracking and outlining the quantum of the case.
He said O’Sullivan appeared to be making submissions under a “cynical” and “misguided” premise that Jenkins’ lawyers would not be willing to pursue their client’s interests if they could not be paid.
O’Sullivan said the fact that Jenkins had not outlined in her statement of claim how much she sought in costs and damages in relation to the case was another benefit of the proposed costs order.
She said that only $12,850 of the grant was not paid to Jenkins, and she subsequently received a grant to complete the artwork of £15,000 from a separate organisation, meaning the damages may not be substantial, although O’Sullivan noted that Jenkins had sought $300,000 in an earlier court hearing.
But Nekvapil said the extent of the compensation included payment for physical and psychological damage allegedly caused by the council, and that damages in discrimination cases before the court had become “more substantial” in recent years, and would far outweigh the amount of about $12,000 that Jenkins lost in funding.
Nekvapil told the court on Wednesday that Jenkins was seeking an order requiring the council to conduct a more detailed search for documents that could support their case.
He said that O’Sullivan’s position on Thursday appeared to be that if Jenkins did not pay a costs security, such a search should not be conducted.
“That’s an extraordinary application and it should be dismissed,” he said.
Jenkins has been in court during the hearings. Edwards reserved her decision on the two applications until a later date.
