Israel Folau's staggering $14 million damages claim against Rugby Australia has overshadowed a key tactical direction change his legal team may have settled on.
A leading legal expert has spotted a directional shift in Folau's statement of claim, which suggests his legal team is preparing to attack Rugby Australia's case on a more procedural level — should their mediation sessions fail to settle the dispute before it is due to be heard in a Federal Circuit Court public hearing in February next year.
Senior lecturer in employment law at the University of Sydney Business School Giuseppe Carabetta has assessed Folau's dramatic move to increase his damages claim against Rugby Australia from $10 million to $14 million as a "smokescreen" before Monday's mediation meeting in Melbourne.
Lawyers for the axed Wallabies fullback 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.
An amended statement of claim released on Wednesday revealed Folau, 30, believes he could have possibly captained "a trophy-winning Wallabies team" in Tokyo if not for his unfair dismissal.
Mr Carabetta said the increased monetary demands appear to be a "legal posturing" ploy ahead of Folau's next face-to-face with Rugby Australia CEO Raelene Castle next week.
"While on the whole Folau's amended statement of claim might be seen as a bit of a smokescreen — or a bit of legal posturing — in view of the upcoming mediation and proceedings there are, nonetheless, some very interesting arguments raised about the procedural side to his termination," Mr Carabetta said.
He says the amended statement of claim could suggest a tactical move away from attacking Rugby Australia's case on religious discrimination grounds — and towards an argument that he was denied proper justice during the independent tribunal hearing.
The tribunal ruled Folau was guilty of a high level code of conduct breach that gave Rugby Australia grounds for ripping up his contract.
In a previously lodged statement of claim, Folau's legal team has also alleged Rugby Australia's independent tribunal 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.
Mr Carabetta says a vast majority of unlawful dismissal cases are settled before the cases debut in court.
In the amended statement of claim to the Federal Circuit Court, Folau details the income he has lost since Rugby Australia tore up his contract.
The list includes estimates of between $450,000 and $1.25 million a year in "post-playing career monetary benefits" over a span of 15 to 25 years. It details Folau's belief that he could have earned more if he was selected as Wallabies Test captain in the future.
"Additional post-playing career monetary benefits to be derived from building upon (his) record of achievement … and two additional Rugby World Cups," the claim states.
"Including a superior performance at the 2019 Rugby World Cup by the Wallabies than what was achieved without Folau, and possible captainship of a trophy-winning Wallabies team." The claim states Folau lost about $300,000 in guaranteed sponsorship, $300,000 in Test match payments and $4.2 million in base salary.
Folau, a former rugby league and AFL player, would have "continued to play successfully" for the Wallabies and NSW Waratahs until his retirement, the claim states.
The document includes fresh claims Rugby Australia was told by a senior Wallaby that sacking Folau could offend Polynesian players and divide the team.
"Before the hearing was conducted before the Tribunal, a senior player had told Ms Castle and Mr (coach Michael) Cheika that the termination of Mr Folau was likely to cause division amongst the Wallabies and that Christian Polynesians in the team were offended by the actions of Rugby Australia," the claim states.
At least 15 teammates and coaching staff members had backed Folau following his comments, according to the documents.
Folau conceded his social media posts were a "low-level breach", the claim states.
To save his contract he offered to apologise, pay a fine, serve a suspension, donate to Randwick Children's Hospital and let Rugby Australia review his future social media posts.
Rugby Australia says Folau's expressions of faith have always been supported "provided that these were done in a respectful and inclusive manner".
Folau's contract with Rugby Australia was terminated in May.