Toben v Nationwide News Pty Ltd; Toben v Mathieson

1. [1]

   HER HONOUR: The High Court in Williams v Spautz approved the statement that every court “is in duty bound to protect itself” against an abuse of its process: (1991) 174 CLR 509 at 520, citing Lord Scarman in R v Sang [1980] AC 402 at 455. These proceedings raise an interesting and difficult question as to the exercise of the court’s power to suppress an alleged abuse of process in the case of an action for defamation where, although the plaintiff must be taken to have a prima facie case, it is contended that he is prosecuting the action for an improper purpose, that is, a purpose other than that for which the proceedings were properly designed or exist.

2. [2]

   The purpose of proceedings for defamation is to vindicate the plaintiff’s reputation, to compensate for the harm caused and to provide consolation for any consequential hurt and distress.

3. [3]

   Dr Fredrick Toben seeks damages for defamation by the publication of an article in The Australian in June 2013. The article appeared under the headline “Split in Greens over Holocaust denier”. The person referred to as a “Holocaust denier” was Dr Toben. The article was written as a continuation of a news story from the previous day published under the headline “Greens courted Holocaust denier”. In the earlier article, The Australian had revealed that New South Wales Member of Parliament David Shoebridge, a member of the Greens, had invited Dr Toben to a fundraising event. Mr Shoebridge had rescinded the invitation when he became aware of Dr Toben’s “extreme views”.

4. [4]

   The matter complained of reported that, following those revelations, the leader of the Greens, Senator Christine Milne, had attacked Dr Toben’s views but had stopped short of condemning Mr Shoebridge. In that context, the article attributed the following remarks to Senator Milne:

5. [5]

   Dr Toben alleges that the article defamed him, conveying the following imputations defamatory of him:

6. [6]

   As noted by Windeyer J in Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205, the truth or falsity of those imputations is irrelevant to the question whether they are actionable. Importantly, however, Dr Toben has put truth in issue by his claim for aggravated damages where it is alleged “his hurt and upset has been increased by his knowledge that the imputations are false”. Dr Toben’s particulars of that assertion are silent as to his own conduct but appear, rather, to question some unstated premise of the imputations themselves. He says “there are no facts upon which the imputations can be found true” and that “it necessarily follows that they are false”. Accordingly, whether or not the defendants plead a defence of truth, the truth of the imputations will be an issue at the trial.

Defendants’ application

1. [7]

   The application before the Court is to have the proceedings stayed or dismissed as an abuse of process. The application is brought by all of the defendants other than Senator Milne but she supports it. The basis for the application is the contention that Dr Toben’s purpose in pursuing these proceedings is not to vindicate his reputation against imputations that he is a Holocaust denier and an anti-Semite but rather to use the process of the Court as a forum in which to create a record of his beliefs concerning the Holocaust and about Jews. The defendants say that is an improper use of the process of the Court and that the proceedings should accordingly be permanently stayed or dismissed.

2. [8]

   Alternatively, the defendants contend that the determination of the issues raised by Dr Toben’s pleadings will require an extensive inquiry into the events of World War II, particularly in Germany in the 1930s and 1940s. They contend that the legal costs and court resources that will have to be expended to determine those issues will be vastly disproportionate to the interest at stake and that the proceedings should accordingly be dismissed in accordance with the principles considered by me in Bleyer v Google [2014] NSWSC 897; 88 NSWLR 670.

3. [9]

   The abuse of process argument is more fully expanded in the defendant’s outline of submissions as follows:

4. [10]

   The reference to the orders of Branson J is explained below.

Plaintiff’s application to amend

1. [11]

   There is also before the Court an application by Dr Toben for leave to file an amended pleading. Dr Toben initially commenced two sets of proceedings, one in respect of the printed edition of the newspaper and one in respect of the publication of the same article on the internet.

2. [12]

   The parties in the proceedings relating to the printed article are Mr Clive Mathieson, Mr Christian Kerr and Senator Christine Milne. Mr Mathieson was the editor of The Australian and Mr Kerr was a journalist at that newspaper. In the proceedings relating to publication on the internet, the only defendant is Nationwide News Pty Ltd as owner of the relevant website.

3. [13]

   Senator Milne is now sued only in respect of the words attributed to her in the article, not the whole article. Leaving aside her separate position, the two proceedings sought damages against different co-publishers of the same article. The reason for dividing the claims in that way appears to have been to enlarge the range of damages that may be awarded by seeking two awards up to the statutory cap rather than only one. In Dank v Whittaker (No 4) [2004] NSWSC 732, I concluded in similar circumstances that duplicate proceedings in which a plaintiff “with an eye on the cap” separately sued different defendants who in combination had published the same or substantially the same defamatory matter should be consolidated: at [47] to [75]. (It might be observed that such duplication complicates the administrative steps in the proceedings, increasing the burden on already over-burdened court staff.)

4. [14]

   In light of the decision in Dank, Dr Toben has now propounded a proposed combined statement of claim. For reasons that were not explained, the proposed amended pleading contemplates that Mr Mathieson would no longer be a defendant. The parties are otherwise the same. An order consolidating the two proceedings was made by consent at the outset of the hearing of the present application. However, the proposed amended pleading also seeks to add three new imputations which are objected to on the grounds of form. The proposed amendment is opposed on that basis.

Allegation of delay

1. [15]

   Before turning to the more complex issues raised by the defendants’ application, there is one issue that can be addressed shortly. The defendants’ application was brought over a year after the commencement of the proceedings. Mr Evatt, who appears with Mr Rasmussen for Dr Toben, submitted that the application should be dismissed out of hand on the grounds of delay. Mr Evatt observed that the defendants have taken no step in the proceedings and, in particular, have filed no defence.

2. [16]

   Mr Hmelnitsky SC, who appears with Mr Afshar for the defendants, submitted that it was entirely appropriate for the defendants to bring the present application before taking any other step in the proceedings. I agree. The real issue is not the order in which events have occurred but the timing.

3. [17]

   It is clear that the delay does not fall at the feet of the present applicants (those defendants who are associated with the newspaper). The statements of claim were filed on 1 July 2013. There followed a number of interlocutory contests between Dr Toben and Senator Milne which did not concern the newspaper defendants. First, in August 2013, Senator Milne objected to the form of the pleading as against her. Dr Toben responded by serving a proposed amended statement of claim which cured the defect complained of but also sought to add a cause of action against Senator Milne for misleading or deceptive conduct contrary to s 18(1) of the Australian Consumer Law.

4. [18]

   I note that the misleading or deceptive conduct claim was brought forward on the premise that the Senator’s statements were made “in trade or commerce” within the meaning of the Act in that Dr Toben is “an historian and researcher by occupation” who has published and continues to publish numerous “historical articles” and six books about the Holocaust and anti-Semitism. I will return to the significance of that assertion.

5. [19]

   Senator Milne opposed the amendment and also objected to two of the imputations specified in the original pleadings.

6. [20]

   On 18 October 2013, I determined Senator Milne’s applications, refusing leave in respect of the new cause of action and striking out the two imputations objected to by her: Toben v Mathieson; Toben v Nationwide News Pty Limited [2013] NSWSC 1530.

7. [21]

   Dr Toben sought leave to appeal against that decision. On 10 March 2014, the Court of Appeal refused leave to appeal in respect of the new cause of action and one of the imputations but granted leave to appeal in respect of one of the imputations: Toben v Milne [2014] NSWCA 49. The appeal in respect of which leave was granted was determined on 26 June 2014. The appeal was dismissed but Dr Toben was granted leave to replead the impugned imputation: Toben v Milne [2014] NSWCA 200.

8. [22]

   The stay application brought by the newspaper defendants was filed within a month after the publication of the decision of the Court of Appeal, on 25 July 2014. In the circumstances, I do not think Mr Evatt’s complaint of delay is well-founded. The newspaper defendants were not involved in those interlocutory steps. I do not think it was unreasonable for them to await their resolution before taking any step in the proceedings.

9. [23]

   In any event, if it is established that the proceedings amount to an abuse of process, any delay on the part of the defendants in making that contention would not be a reason to allow the abuse to continue. At most, it would be a complaint sounding in costs.

Issues to be determined

1. [24]

   It is important to understand the issue raised by the defendants’ application. The defendants do not say that the matter complained of is incapable of being defamatory of Dr Toben or that he is incapable of being defamed; they do not deny the existence of a prima facie cause of action for defamation or suggest that the claim is amenable to summary dismissal.

2. [25]

   Nor is the present application concerned with the broader issues addressed in Dr Toben’s writings. This judgment makes no finding or assumption as to the truth or otherwise of any posited historical fact or belief; that is not necessary for the present analysis.

3. [26]

   The application focusses rather on the narrow issue of the purpose for which Dr Toben prosecutes the cause of action. It invokes the principle that a litigant will be prohibited from invoking the court’s authority to decide in cases where it is established that the litigant’s purpose in doing so is one that is improper or collateral to the purpose for which the court’s authority exists.

4. [27]

   The defendants bear the onus of establishing that Dr Toben’s predominant purpose in using the legal process is improper or one other than that for which it was designed: Williams v Spautz at 529. Having regard to the seriousness of the order sought, the onus is a heavy one. As stated in Williams v Spautz at 519, “it is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction.”

The epistemological loop

1. [28]

   Before turning to the evidence as to the purpose for which the proceedings are brought, it may be helpful to explain the legal context in which the issue arises.

2. [29]

   As already observed, the purpose of the tort of defamation is to protect reputation. The Defamation Act 2005 (NSW) provides in s 8 that a person has a cause of action in respect of the publication of defamatory matter. Matter is defamatory (or not) according to the act or condition it attributes to the plaintiff. A plaintiff is presumed at law to enjoy a good reputation unless it is proved otherwise. The essence of the cause of action is that a person’s presumed good reputation has been harmed by the attribution to him or her of a specified act or condition. The content of the attribution is the critical focus of the cause of action; that is why it is the subject of so much argument in proceedings in the Defamation List. That is a long and probably unnecessarily complex way of saying that defamation is a cause of action that turns on the meaning of words.

3. [30]

   But, to borrow from the language of computer gaming, an action for defamation is not an “open world game”. In order to delineate the issues in the proceedings, the plaintiff is required to specify the defamatory imputations he or she alleges were conveyed by the matter complained of. If there is any ambiguity in the meaning specified by the plaintiff, the court should resolve it: Singleton v Ffrench (1986) 5 NSWLR 425 at 435; Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [22].

4. [31]

   As already noted, the truth or falsity of the meanings specified by the plaintiff is irrelevant to the question whether the claim is actionable. But where truth is raised, the proposition to be proved true or false is the proposition comprehended in the imputation. The action cannot proceed on the basis that an imputation is defamatory because it is understood in one sense and true (or false) because it is understood in another.

5. [32]

   Dr Toben’s case defies simple application of those principles and leads, rather, into what Mr Hmelnitsky termed “an epistemological loop”. The difficulty arises from Dr Toben’s reliance on imputations referring to the Holocaust. The point is best illustrated by reference to the imputation that the plaintiff is a “Holocaust denier”. For the meaning of that imputation to be clear, there must be clarity as to what it is that Dr Toben is attributed with denying. More precisely, there must be clarity as to what Dr Toben contends he is attributed with denying. Further, as explained above, the answer to that question must be the same both for the purpose of determining defamatory meaning and for the purpose of determining truth or falsity.

6. [33]

   Unusually, I was provided with two sets of written submissions for Dr Toben in the present case. One was written by Mr Evatt, counsel for Dr Toben. A second, lengthier submission was written and signed by Dr Toben himself. I would not ordinarily have allowed that course. However, Mr Hmelnitsky did not object and, for reasons I will explain, the submissions authored by Dr Toben are important.

7. [34]

   The submissions revealed a different understanding of the case as between Dr Toben and his counsel. Mr Evatt put a narrow case. He insisted that “the Holocaust” means “the systematic murder of Jews and others by the Nazis during the war” and that the term “Holocaust denier” means a person who denies that the Holocaust occurred. He submitted that Dr Toben does not deny that an event described in those terms occurred and, therefore, Dr Toben is not a Holocaust denier and it is defamatory to say that he is. A simple case.

8. [35]

   Dr Toben’s position (as revealed by the written submissions authored by him and his evidence on the application) was more subtle. The defendants’ written submissions assert that Dr Toben “is not seeking to restore his reputation as a person who does not deny the Holocaust as that expression is commonly understood.”

9. [36]

   Dr Toben took the defendants to task on that issue. In his written submissions, responding to the defendants’ use of the term “commonly understood”, he said:

10. [37]

    The submission proceeded to provide examples of different Holocaust narratives. Dr Toben said “the extent that historical narratives relating to the Holocaust consume time during the proceedings will be more so dictated by the manner in which the defendants choose to conduct their defence, and/or reach concurrence with the plaintiff on what is ‘commonly understood’ as ‘the Holocaust’”.

11. [38]

    Dr Toben explained what his approach will be, as follows:

12. [39]

    Thus Dr Toben asserts that his approach will not be to offer his own view as to what happened during the war but only to review the changing narratives given by others.

13. [40]

    Dr Toben has previously been prepared, in a different context, to proffer his own definition of “the Holocaust” and why it is “a lie”. A judgment of the Federal Court records that, in January 2005 (scil: it appears the correct date may be 2006), Dr Toben made the following statement in an interview published in The Teheran Times (recorded in the judgment of Lander J at [24]):

14. [41]

    Dr Toben now evidently distances himself from that earlier statement. His definition as to what the term “the Holocaust” means in his own imputations for the purpose of these proceedings is unclear.

15. [42]

    As already noted, if the meaning of a term used in an imputation is unclear, the ambiguity should be resolved by the Court. However, that is not the point raised by the present application. The defendants accept that, since “Holocaust denier” was the term used in the matter complained of, the plaintiff is probably entitled to sue on an imputation in those terms on the authority of Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135 at 137.

16. [43]

    The uncertainty is important for a different reason which is that Dr Toben’s action can be seen to rest on a shifting premise. He alleges that the imputation is defamatory. He also alleges that he knows it to be untrue (as a particular of aggravated damage). The material relied upon by the defendants reveals that those allegations make different, inconsistent assumptions as to the meaning of the term “Holocaust denier”.

17. [44]

    It is not defamatory to attribute a person with the denial of something unless something is known of what is said to have been denied. The “Holocaust denier” imputation is capable of being defamatory only on the premise that it attributes Dr Toben with the discreditable denial of an obvious and important truth. Its use in that sense is clearly a necessary premise of Dr Toben’s allegation that the Holocaust imputations are defamatory; so much appears to be accepted by Dr Toben.

18. [45]

    However, for the purpose of his assertion that he knows the imputations to be untrue, Dr Toben asks, what is truth? It is clear on the evidence before me that the premise on which Dr Toben asserts he knows it to be untrue that he is a Holocaust denier is that the occurrence of the Holocaust, as “commonly accepted”, is not an obvious truth.

19. [46]

    Thus it may be seen that, for different purposes, Dr Toben’s case both accepts and rejects what he himself has identified as central tenets of the “commonly accepted” truth as to the Holocaust.

The existential crisis

1. [47]

   That is not the only shift in Dr Toben’s position. I noted earlier that, for the purpose of seeking leave to prosecute a claim for misleading or deceptive conduct against Senator Milne in these same proceedings, Dr Toben claimed to be “an historian and researcher by occupation” who earns his living by publishing books and articles about the Holocaust and anti-Semitism. Owing to the importance of that issue in the earlier application, that contention (which had not been pleaded) was required to be written out as a proposed particular of the new claim (MFI 1 on that application).

2. [48]

   In the present application, Mr Evatt said that Dr Toben is not a historian but a philosopher who, like any philosopher (Mr Evatt cited Kant and Hegel), is given to abstract thinking. Mr Evatt took me to the introduction of Dr Toben’s book, 40 days in Teheran published in 2007 (exhibit A), which Mr Evatt described as being “typical of [Dr Toben’s] evidence” and “typical Kant”. The book provides “Toben’s opening quotes”, which are three quotes attributed to Germar Rudolph. The first asks, “how can anybody seriously believe that the Holocaust did NOT happen?” considering various matters. The second quote asks, "How can anybody seriously believe that the Holocaust DID happen?” considering all the “absurdities” and so on. This interesting philosophical conundrum is brought together in Rudolph’s third statement:

3. [49]

   Dr Toben claims, by this device, merely to pose questions for discussion. In his evidence in the proceedings, he repeatedly emphasised that he is a philosopher who merely questions. So, the proposed trade practices claim sought to protect the trade of Dr Toben the historian, who publishes books and articles about history, while the defamation claim is brought by Dr Toben the philosopher, who merely questions such events at an abstract level (and can therefore contest the truth of an imputation that he was ever so definitive as to deny the common conception of a historical event).

4. [50]

   The analysis of the defendants’ contention that the proceedings are an abuse of process has been complicated by Dr Toben’s adoption of those shifting, inconsistent premises. There is much force in Mr Hmelnitsky’s submission, in those circumstances, that the pleadings and the proceedings are being treated as “some sort of parlour game”.

Circumstances in which the proceedings are brought - the Racial Discrimination Act proceedings

1. [51]

   The defendants’ central contention in support of the allegation that the proceedings are an abuse of process is that Dr Toben does not, in truth, seek to vindicate his reputation but, rather, seeks to use the proceedings as a forum in which to ventilate his views about the Holocaust and about Jews. An aspect of the contention is that Dr Toben holds strong views on those topics but would not be permitted to express them outside the construct of these proceedings. Some explanation is required. The following narration of the background is lengthy but it is important to an understanding of the conclusion I have reached.

2. [52]

   Dr Toben was the director of an organisation called the “Adelaide Institute”. An extract from that organisation’s website (recorded in a judgment of Branson J to which I will come shortly) said:

3. [53]

   The Adelaide Institute published newsletters to “associates and supporters”. Some of the newsletters were in evidence before me. Their content is such as would plainly be regarded by many readers as being openly supportive of the Nazi leader, Adolf Hitler, and openly anti-Semitic.

4. [54]

   On 31 May 1996, the then executive vice-president of the Executive Council of Australian Jewry, Mr Jeremy Jones, made a complaint to the Human Rights and Equal Opportunity Commission that Dr Toben (in his capacity as director of the Adelaide Institute) had breached s 18C of the Racial Discrimination Act 1975 (Cth) by uploading certain material to the Institute’s website. The complaint alleged that the material made available on the internet by the Adelaide Institute constituted “malicious anti-Jewish propaganda”.

5. [55]

   The complaint was not considered to be amenable to conciliation and was referred to a public inquiry pursuant to s 24E(1)(a) of the Act. A public hearing was conducted pursuant to s 25A of the Act. On 5 October 2000, the inquiry commissioner upheld the complaint: Jones v Toben [2000] HREOCA 39.

6. [56]

   It is relevant, in the present context, to record aspects of the hearing, including the prehearing procedures, as recorded in the judgment. The commissioner recorded that, during the period when she was endeavouring to identify and clarify the matters the subject of the inquiry, she received numerous written submissions from Dr Toben and a large number of witness statements relating to the evidence he wished to place before the commission at the inquiry. In one of his written submissions, Dr Toben provided a witness list identifying 36 witnesses whom he proposed to call in the course of the inquiry. He formally sought leave to video-record the proceedings. He objected to a direction by the commissioner that a directions conference be held in private.

7. [57]

   In due course, Dr Toben filed 42 witness statements. He informed the commissioner that those witnesses could all give evidence “which would establish that the assertions in the material contained on the website were true”. Dr Toben told the commissioner “truth is the defence”. His primary contention was that the purpose of the inquiry was to “prove” whether the events known as “the Holocaust” in fact occurred. The commissioner stated:

8. [58]

   The commissioner determined that she would hear from six witnesses on behalf of Dr Toben including Dr Toben himself. She reserved her decision as to a further seven, inviting Dr Toben to put on submissions as to their relevance. No submissions were provided at any stage. Dr Toben subsequently withdrew from the proceedings but, when the public hearing commenced, did attend, representing himself.

9. [59]

   At the inquiry, Dr Toben sought to challenge the validity of the legislation (an issue the commissioner indicated she did not have authority to decide). He also maintained his contention that “truth is a defence”.

10. [60]

    On the question of truth as a defence, the commissioner recorded the following:

11. [61]

    When he appeared before the inquiry, Dr Toben indicated he would not be calling any witnesses. He sought to tender a 390 page thesis by a Mr J S A Hayward entitled “The Fate of the Jews in German Hands: An Historical Enquiry into the Development and Significance of Holocaust Revisionism”. The commissioner indicated that the complainant, Mr Jones, needed an opportunity to consider the document and that it was very late in the inquiry to rely upon such a lengthy document, particularly considering the extensive pre-hearing process. Dr Toben then handed up a large bundle of documents and made complaints relating to recent publications in The Australian Jewish News which he claimed were defamatory of him. The commissioner describes the following events:

12. [62]

    The commissioner notes that Dr Toben then left the inquiry and did not return. He did, however, write to the commissioner after the conclusion of the hearing comparing HREOC to the Stalinist show trials (he attributed these remarks to others). The letter concluded “Jones tells lies about the Auschwitz concentration camp – and any judgment from you in his favour would support such lies. Do you want to be known as a supporter of liars?”

13. [63]

    In his written submissions in these proceedings, Dr Toben dismissed his persistent focus on “matters of falsehood and truth” before HREOC as a reflection of his “ineptitude” as a self-represented litigant. That submission misses the point. The importance of the record of what occurred in the proceedings before HREOC is that it reveals that, contrary to his claim now to be a philosopher with no fixed views who records the views of others only as part of the philosophical discourse, it is beyond doubt that Dr Toben then had a fixed view which he was happy and indeed anxious to record.

14. [64]

    The complaint was upheld. The central facts were not in issue; Dr Toben acknowledged that he was responsible for the material placed on the Adelaide Institute website and for all actions of the Adelaide Institute, which he “proudly asserted…represented independent and international research into an important historical and sociological issue”. The commissioner found that the publication of the material (for which Dr Toben was responsible) was unlawful behaviour contrary to s 18C of the Act. The commissioner accordingly found the complaint substantiated and made a declaration to that effect. She also made a declaration that Dr Toben should remove the contents of the Adelaide Institute website from the World Wide Web and not republish the content of that website in public elsewhere. Finally, the commissioner made a declaration that Dr Toben should make a statement of apology to Mr Jones and the members of the Jewish community he represented. The declaration set out the terms of the apology.

15. [65]

    Mr Jones applied to the Federal Court of Australia for orders pursuant to s 25Z(1)(b) of the Racial Discrimination Act to enforce those determinations. The enforcement application was determined by Branson J. Her Honour did not make any order enforcing the publication of an apology, for the good reason that she did not consider it appropriate “to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel”: Jones v Toben [2002] FCA 1150; 71 ALD 629 at [106]. Her Honour otherwise reached substantially the same conclusions as those reached by HREOC.

16. [66]

    Justice Branson ordered Dr Toben to do all acts and things necessary to remove the offending material from the internet. Her Honour also made an order restraining Dr Toben from publishing that material again or any other material which conveyed the following imputations or any of them:

17. [67]

    An appeal by Dr Toben against the decision of Branson J was dismissed by the Full Court of the Federal Court: see Toben v Jones [2003] FCAFC 137 (Carr, Kiefel and Allsop JJ).

18. [68]

    The decision of the Full Court was published on 27 June 2003. In the meantime, Dr Toben had deleted all material on the website within the time required by the orders of Branson J. Subsequently, however, material the subject of the order was again published on the same website. After the publication of the decision of the Full Court, a large amount of further material was published.

19. [69]

    On 16 November 2006, Mr Jones filed a notice of motion in the Federal Court seeking an order that Dr Toben be found guilty of contempt. The motion sought an order that Dr Toben be punished for the contempt including by committal to imprisonment. An amended statement of the charge specified 144 statements said to have been published by Dr Toben which gave rise to each of the four imputations specified in the restraining order made by Branson J.

20. [70]

    The contempt motion came before Moore J. Dr Toben was represented by counsel (pro bono) on that occasion. It was indicated that Dr Toben wished to purge his contempt by agreeing to give undertakings to the Court. Dr Toben apologised to the Court for his contempt of Branson J’s orders. He gave an undertaking to the Court to comply with those orders henceforth and to remove all files and material identified in the contempt charge from the Adelaide Institute website and from all other websites within his control.

21. [71]

    Dr Toben’s reaction to the events of that day is recorded in a later judgment of the Federal Court per Lander J in which Dr Toben was found guilty of criminal contempt for further breaches of the orders of Branson J and of the undertaking given to the Court before Moore J at the hearing of the first contempt motion: Jones v Toben [2009] FCA 354; 255 ALR 238 at [32]. Dr Toben posted a note on the website which suggested that the consent orders had been agreed “under duress” and added the following as his own comment:

22. [72]

    Justice Lander found Dr Toben guilty of 24 counts of contempt. In a separate judgment, his Honour determined that the seriousness of Dr Toben’s conduct warranted the imposition of a sentence of imprisonment. Dr Toben was sentenced to a term of imprisonment for three months.

23. [73]

    An appeal against the severity of the sentence imposed by Lander J was dismissed: Toben v Jones [2009] FCAFC 104. That judgment was published on 13 August 2009. Dr Toben was ordered to pay Mr Jones’s costs.

Dr Toben’s defamation proceedings against Mr Jones

1. [74]

   The decision of Lander J was the subject of an article of which Dr Toben alleges Mr Jones was a publisher. Almost three years later, Dr Toben sued Mr Jones for defamation, alleging that the article conveyed the following imputations defamatory of him:

2. [75]

   A claim for misleading or deceptive conduct was pleaded in the alternative. Mr Jones sought to have the proceedings stayed on grounds echoed in the present application but with an important difference. It was submitted that the proceedings against Mr Jones were an abuse of process, not on the grounds asserted here but because they had been commenced by Dr Toben for the collateral and improper purpose of coercing Mr Jones to refrain from having his bill of costs in the contempt proceedings taxed.

3. [76]

   The stay application came before Yates J. His Honour was satisfied that the commencement of the proceeding was an abuse of the court’s process and ordered that the proceeding be stayed permanently: Toben v Jones [2012] FCA 1193.

Evidence in the proceedings

1. [77]

   The Adelaide Institute continues to publish newsletters about the Holocaust and about Jews. The defendants tendered a number of newsletters available on the Institute’s website bearing dates ranging from December 2004 to July 2014. Also tendered was material published by Dr Toben on his personal website. On the strength of his own writings, it is difficult to conclude otherwise than that Dr Toben has a clear agenda to create a public forum for disputation of the history of the Holocaust and for the expression of anti-Semitic views.

2. [78]

   Dr Toben relied upon two affidavits in opposition to the relief sought by the defendants. He stated that he was surprised and upset when he read the matter complained of and that it caused him considerable distress. He said it made derogatory statements of him which are untrue. He said that each of the imputations specified in his pleadings (set out above) is false. He said that his hurt and upset about the article has increased by reason of his knowledge of the falsity of the imputations. He said that he is bringing this claim against the defendants because they have damaged his reputation and have caused him distress, upset and injury to feelings and that he seeks vindication of himself and his reputation.

3. [79]

   Mr Hmelnitsky sought leave to cross-examine Dr Toben. He acknowledged that cross-examination would not ordinarily or automatically be allowed on an interlocutory application. He made it plain, however, that he proposed to put a submission that vindication of reputation on the imputations pleaded is not Dr Toben’s true purpose in bringing these proceedings. On that basis, he submitted that it would be appropriate for the Court to grant leave to cross-examine so as to allow the proposition to be put squarely and to afford Dr Toben an opportunity to respond to it. Mr Hmelnitsky also indicated that he proposed to invite the Court to infer from the material put before the Court by the defendants that Dr Toben is racist and an anti-Semite and that his evidence to the contrary should be rejected altogether.

4. [80]

   In the unusual circumstances of this case, I determined that it would be appropriate to allow cross-examination of the plaintiff. The submissions foreshadowed by Mr Hmelnitsky raised a real question as to the purpose for which the Court’s authority to decide is invoked in this case; the documentary material tendered by the defendants afforded ample basis for those submissions. I considered that cross-examination should be permitted not only as a matter of fairness to both parties but to inform the proper exercise of the Court’s power (which is also regarded as a duty) to suppress any abuse of its process.

5. [81]

   The cross-examination confirmed the apprehension of a shift in the discourse. There can be little doubt that, prior to his imprisonment, Dr Toben was prepared to accept and indeed embrace, as fact or at least his own belief, the four imputations specified in the orders of Branson J.

6. [82]

   The evidence of that is overwhelming. Dr Toben conducted the inquiry before HREOC on the basis that “truth is a defence”; he defended the application before Branson J to enforce HREOC’s determinations on the same basis; he appealed to the Full Court of the Federal Court, not to challenge the finding of Branson J that his publication of the material was reasonably likely to offend, insult, humiliate and intimidate the groups identified by her Honour but to test the Constitutional validity of the relevant provisions of the Racial Discrimination Act and otherwise to test his entitlement to publish such material.

7. [83]

   In his first judgment, Lander J recorded that, at about the time the matter was heard by the Full Court, Dr Toben published on the Adelaide Institute website “that the appeal would signal how strong the Jewish Zionist influence is in the Australian judiciary where a battle rages between common law and Talmudic law”. Before Moore J, charged with having republished the Branson imputations, he apologised for doing just that and undertook not to do so again. On the same day, he published remarks on the Adelaide Institute website suggesting the undertakings were given under duress. His remarks published that day (set out above) are particularly revealing. In those remarks, he called for action in the courts to state how hurtful any mention of the Holocaust is to German-Australians “especially because through such orders it is not permitted openly to discuss the factuality of any claim made by any Holocaust survivor”. He described that to be “a sad day for free expression”.

8. [84]

   Justice Lander also records that Dr Toben considered withdrawing from the “consent agreement” (reflected in the orders of Moore J) following the publication of an article in the Australian Jewish News. The article opened:

9. [85]

   Dr Toben subsequently wrote to the Associate to Moore J attaching a copy of that article and stating:

10. [86]

    As already made plain, the point is not to record my acceptance or rejection of any aspect of that history of these proceedings but only to explain my conclusion that, prior to his imprisonment, Dr Toben had firm beliefs as to what did or did not in fact happen during the second World War and was anxious to express and record those beliefs. He had no hesitation in calling aspects of the common conception of the Holocaust “lies”; the discourse adopted the language of truth and lies.

11. [87]

    In these proceedings, there is a shift in language. Throughout his evidence, Dr Toben flatly refused to be drawn as to his views and indeed appeared to deny that he holds any views as to the Holocaust at all; he is merely a philosopher. He characterised his statements as “philosophical discourse”.

12. [88]

    The first illustration of that consistent theme came early in the cross-examination. Mr Hmelnitsky began with the fact that Dr Toben, in these proceedings, sues on an imputation that he is an anti-Semite.

13. [89]

    Dr Toben’s personal website has a page dated 12 December 2014 under the tag “free expression”. He sets out a quote attributed to Henry Ford Snr in May 1920 expressing anti-Jewish sentiment, followed by the words:

14. [90]

    In his cross-examination, Dr Toben accepted that those were his words. The cross-examination continued:

15. [91]

    It was drawn to Dr Toben’s attention that the material appeared under the heading “Testing Fredrick Toben’s maxim” and he agreed that was his description of those words, that is, as a maxim. The exchange continued:

16. [92]

    Dr Toben persistently emphasised his claim to be a philosopher. Speaking of a submission he made to the Commonwealth Attorney-General in respect of the retention of s 18C of the Racial Discrimination Act, Dr Toben said (T39-40):

17. [93]

    A similar answer was given in respect of one of the newsletters of the Adelaide Institute (T43-4):

18. [94]

    The cross-examination continued in that vein. Dr Toben’s own writings (which to an objective reader might be thought to breach the orders of Branson J) were dismissed as “dialectic” (T45.29). Where he had published the words of others, they were characterised as “a quote that needs to be looked at and to be tested for truth content” (T46.37).

19. [95]

    Mr Hmelnitsky’s skilful cross-examination of Dr Toben has persuaded me that Dr Toben’s claim merely to be engaged in philosophical discourse is cynical and disingenuous. It is a transparent rhetorical device in which Dr Toben’s own anti-Semitic views are deliberately attributed to a straw man (or else characterised as mere asteroids in the universe of philosophical discussion) so as to enable Dr Toben to record views he plainly espouses on a pretended lawful basis.

20. [96]

    The evidence has further persuaded me that Dr Toben’s purpose in commencing this defamation action is to advance that pretence. Having regard to Dr Toben’s own writings and his evidence in these proceedings, the suggestion that the proceedings are brought to vindicate his reputation against the imputations on which he sues is risible.

21. [97]

    In my view, it is clear that his purpose in bringing the proceedings is not to vindicate his reputation against the false attribution that he denies an obvious truth but to use the proceedings as a forum for its disproof.

22. [98]

    As recently as December 2014, Dr Toben has published material on his personal website questioning the history of the Holocaust. The content of the website appears under the banner of a series of photographs of Dr Toben in solemn pose with the words “Do I tell the truth or do I obey the law? Do both!”.

23. [99]

    The entry from December 2014 opens with photographs of Hitler receiving Christmas presents, juxtaposed with disturbing photographs depicting a pile of dead, emaciated bodies. It was put to Dr Toben by Mr Hmelnitsky that the photographs were taken after the liberation of the Buchenwald concentration camp and that they show Senator Barkley observing corpses piled at the concentration camp after the Germans left it. Dr Toben claimed not to know whether that was right, saying “I have nothing to do with this” (T54.20).

24. [100]

    He accepted, however, that it was his website. Mr Hmelnitsky put that the website attributes Senator Barkley with the following thoughts (in a thought bubble):

25. [101]

    The cross examination continued with the following exchange (at T54.33 to T55.9):

26. [102]

    Again, it must be emphasised that it is no part of this judgment to determine or assume the correctness of any proposition questioned by Dr Toben. The issue raised by the present application is whether Dr Toben brings these proceedings for an improper or collateral purpose.

27. [103]

    The cross examination has persuaded me that the Court could not seriously entertain the notion that Dr Toben has the least interest in vindicating his reputation against the imputations he has specified. As noted by Mr Hmelnitsky, Dr Toben’s own writings make that plain.

28. [104]

    One of the imputations sued on in these proceedings is that Dr Toben spent time in prison in Australia and Germany for his Holocaust denial. Dr Toben’s own book, Forty Days in Teheran, promotes itself on exactly that basis, as follows:

29. [105]

    I have concluded that the proceedings are an abuse of the court’s process and should be stayed. The defendants have established, to my satisfaction, that Dr Toben seeks by these proceedings to manipulate the process of the court to create a forum in which to assert the very views by the attribution with which he claims to have been defamed. Those are the very views his expression of which is otherwise prohibited by the orders of Branson J. That is a cynical misuse of the process of the court which must be stopped.

Proportionality

1. [106]

   In light of that conclusion, it is not necessary to determine the Bleyer v Google issue. Had it been necessary to determine that issue, I would not have stayed the proceedings on that separate basis.

2. [107]

   The basis for that aspect of the application is the contention that the cost of the proceedings (that is, the time, resources and money that will have to be expended to conduct them), is out of all proportion to the interest at stake.

3. [108]

   The submission makes an assumption as to the value of the interest at stake which cannot be taken to be established at this stage of the proceedings. The plaintiff must be taken to have a prima facie case. Without determining that case on the merits, it cannot be assumed to be of little value. The circumstances are very different from those that obtained in Bleyer v Google. That was not a newspaper article case.

4. [109]

   It is of concern that the plaintiff is an undischarged bankrupt but, had I not been persuaded that the proceedings are an abuse of process, the risk of injustice to the defendants on that account and the risk of disproportionate costs could have been addressed in different ways, by less draconian means.

Amendment application

1. [110]

   In light of the conclusion I have reached, it is also not necessary to make any ruling as to Dr Toben’s application to amend. Had it been necessary to give rulings on that issue, I am inclined to think that each of the proposed imputations is bad in form.

2. [111]

   The proposed new imputations are:

3. [112]

   The first and third of those are rhetorical, asserting what should be the case rather than what is; the second is hypothetical. However, it is not clear to me whether Mr Evatt said all he wished to say on that topic. If I am wrong in my determination as to the abuse of process, it will be necessary to afford the plaintiff an opportunity to be heard as to the proposed new imputations.

Orders

1. [113]

   For those reasons I order that the proceedings be permanently stayed.

2. [114]

   It will be necessary to hear the parties as to costs.