Israel Folau responds to Rugby Australia claim in court documents

Israel Folau has responded to Rugby Australia’s court documents with a dramatic claim of his own that LGBTI links compromised his hearing.

Sacked rugby union star Israel Folau insists he never agreed to proposed limitations on his social media use before posting controversial Instagram remarks that saw his Wallabies contract terminated, according to court documents.

In documents made public today, the former player also claimed he was told by Rugby Australia’s chief executive that the organisation “supported his position on freedom of speech”.

Lawyers for the 30-year-old made the claims in documents lodged to the Federal Circuit Court in relation to his case against Rugby Australia and the NSW Waratahs, who he claims unfairly dismissed him over his April 2019 Instagram posts that stated gay people would go to hell.

Folau’s legal representatives also allege in the legal response that Rugby Australia’s independent tribunal — which found Folau guilty of a high level code of conduct breach — was compromised by one judiciary member’s links to the LGBTI community.

Sydney barrister Kate Eastman SC, who was one of three members on the independent panel, is a co-founder and member of Australian Lawyers for Human Rights and a member of public committees that have acted in support of LGBTI community rights.

Folau objected at the time to the appointment of Eastman “on the ground of apprehended bias”, partly due to her advocacy for the LGBTI community.

She previously chaired the Law Council of Australia’s Equal Opportunity Committee, the NSW Bar Association’s Diversity and Equality Committee and the Australian Bar Association’s Diversity and Inclusion Committee.

“Rather than accept Mr Folau’s concern and appoint another legal practitioner (or, indeed, any other person) to replace Ms Eastman SC, Rugby Australia opposed Mr Folau’s application.”

The court documents show Folau claims Eastman had not previously disclosed her community advocacy for the LGBTI community when she had acted for Rugby Australia in previous legal situations.

Israel Folau has missed the 2019 Rugby World Cup.

Folau’s response also denied Rugby Australia’s previous claim that he had admitted to causing offence with his infamous Instagram post.

“Rugby Australia attempted to have Mr Folau ‘agree and acknowledge’ certain purported limitations on his ability to use social media and otherwise comment publicly, but he did not do so,” the documents state.

The court documents also show Folau claims Rugby Australia ignored a key term in his playing contract during the judiciary process that ultimately saw his employment contract terminated.

Folau’s legal team claims Rugby Australia chief executive Raelene Castle told the dumped former Wallabies star that the governing body “respected and supported his position on freedom of speech” one year before his contact was torn up.

The documents also show Folau claims he was unlawfully dismissed because of Rugby Australia’s failure to consider an implied term in his playing contract that would see the governing body “act reasonably and in good faith” in any matters relating to a code of conduct breach.

Folau claims the “implied term” demanded Rugby Australia would apply sympathetic discretion when it came to judging the severity of his code of conduct breaches through use of social media that was not in line with Rugby Australia’s values.

In the April post that ultimately saw his contract torn up, Folau claimed transgender people were evil and should repent while another paraphrased a Bible passage saying “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators” would go to hell unless they repented.

Folau claims Rugby Australia had a discretion obligation as outlined in his contract to act with “fidelity” when it came time for the independent tribunal to decide on the level to which he breached the code of conduct.

His fresh claims come in reply to documents filed last month in which Rugby Australia revealed Folau admitted during an independent tribunal hearing held by the organisation that his comments were not in line with the values of the sporting organisation’s code of conduct.

Israel Folau arriving at his church in Kenthurst, Sydney.

A high-level breach was the only level that would have empowered Rugby Australia to terminate the contract — and that is exactly what happened.

“There was an implied term of the Player Contract that in exercising the discretion, Rugby Australia would act reasonably and in good faith or with fidelity to the bargain,” Folau has replied in the court documents.

The fresh claims come after the mother of a Wallabies player infiltrated Israel Folau’s church to reveal the “truth” about its teachings.

Helen Petaia has admitted she used a fake name to exchange messages online with Folau’s cousin, Josiah, to press the 20-year-old student about the beliefs of the Truth of Jesus Christ Church run by Israel Folau’s father, Eni, before leaking what she was told to the media.

Rugby Australia last month claimed in its own documents lodged with the court that Folau offered to apologise for his controversial homophobic Instagram post and conceded it could have been hurtful to young gay people, explosive court documents have revealed.

The court files also show he received a $1.3 million pay rise, even after being reprimanded for an earlier Instagram comment where he said gay people would go to hell.

Rugby Australia sacked Folau in May over a separate Instagram post that said “hell” awaited “drunks, homosexuals, adulterers” and others unless they repented.

Documents seen by news.com.au reveal Folau admitted during an independent Rugby Australia tribunal hearing that month that his comments were not in line with the values of the sporting organisation’s code of conduct.

Israel Folau at the Fair Work Commission.

The revelations, as claimed in court documents submitted by Rugby Australia, could be a major blow to Folau’s bid for $10 million in damages in the Federal Circuit Court over what he says was an unlawful dismissal.

The documents claim Folau offered to make a public apology for his most outrageous post from April, which is still featured on his Instagram page.

In addition, Rugby Australia claimed that during Folau’s judiciary hearing the former Wallabies fullback admitted transgender people may have been offended by his post to Twitter and accepted that Rugby Australia stakeholders may have been uneasy being linked to the organisation as a result of his comment.

Rugby Australia and Rugby NSW’s submissions come after Folau’s legal team lodged a 26-page statement of claim with the court in August where the unemployed star said the decision to sack him was unenforceable because it placed an unreasonable limit on his ability to play.

The 30-year-old took his unfair dismissal claim to the court after a mediation hearing at the Fair Work Commission in June failed to result in an agreement between the two parties.

Folau’s unlawful termination case against Rugby Australia and Rugby NSW will be heard from February 4, unless mediation meetings scheduled in December can broker a settlement between the two parties.

Folau is also seeking an apology from Rugby Australia and the reinstatement of his $4 million contract with the Wallabies and NSW Waratahs.

Folau will return to court on December 17 ahead of a trial if mediation is unsuccessful.

With AAP