The Australia Council has failed in an attempt to force an artist to make a payment on its sizeable legal costs, in the latest episode of a two-year court battle.
The court battle began after the national arts body withdrew funding for a performance documenting self-insemination.
Judicial registrar Amelia Edwards ruled in the federal court on Wednesday that the application for a costs order against the performance artist Casey Jenkins should be dismissed.
Edwards also granted an order sought by Jenkins for the council to conduct a more thorough search for documents relevant to their case.
The reasons for the judgment are expected to be published later on Wednesday.
Outside court, Jenkins, who is heavily pregnant, said the judgment meant there was a greater chance at getting to the bottom of why their funding was cancelled.
“I just feel really relieved that, that we’re going to be able to have all of the information we need to proceed, and I don’t have to put up 75 grand,” they said.
“This just wasn’t possible as a solo parent and artist to defend myself. And so I feel like for artists in general, this is a win because we are able to … defend ourselves.”
Lawyers for Jenkins told earlier court hearings 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 livestream 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The amendment was rescinded by the council in a letter sent in September 2020, soon after the project was criticised by rightwing commentators including Peta Credlin and Bella d’Abrera of the Institute of Public Affairs.
A further pretrial hearing will be held at a later date to determine the extent of orders relating to the discovery of Australia Council documents.
