Jones v Toben

Federal Court of Australia|2009-07-01|Before: Lander J

Introduction 1 The applicant has brought a notice of motion seeking the punishment of the respondent for the contempt of court in disobeying orders of this Court and failing to honour undertakings given to the Court. 2 On 5 October 2000 on a reference from the Federal Race Discrimination Commission or to the Human Rights and Equal Opportunity Commission, the Inquiry Commissioner determined that the respondent had engaged in conduct rendered unlawful by s 18C of the Racial Discrimination Act 1975 (Cth)(the Racial Discrimination Act) by publishing on a website material racially vilifactory of Jewish people and ordered the respondent to remove the website from the World Wide Web. 3 On 30 March 2001 the applicant brought a proceeding against the respondent, Dr Toben for a declaration that Dr Toben had engaged in conduct rendered unlawful by Part IIA s 18C of the Racial Discrimination Act by having published on the World Wide Web at websites collectively known as "The Adelaide Institute Website" material which was racially vilifactory of Jewish people. The applicant sought consequential orders in relation to the published material. 4 The application was supported by an affidavit of Peter John Wertheim who exhibited a document (PJW4) which was entitled "About the Adelaide Institute" (the AI Document).

The September 2002 orders 5 After a number of interlocutory hearings and an application for leave to appeal to the Full Court, the applicant applied to Branson J for summary judgment. She allowed the application. On 17 September 2002 she made the following declaration and orders (the September 2002 orders): 1. It be declared that the respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by publishing to the public on the World Wide Web the document headed "About the Adelaide Institute" a true copy of which is part of annexure 'PJW-4' to the affidavit of Peter John Wertheim sworn 29 March 2001 and filed in this proceeding (the document headed "About the Adelaide Institute"). 2. The respondent: (a) within seven days of the date of this order do all acts and things necessary to remove from the website and from all other World Wide Web websites the content of which is controlled by him or by the Adelaide Institute: (i) the document headed "About the Adelaide Institute"; (ii) any other material (etc - see orders attached); (iii) any other material which conveys the following imputations or any of them - A. there is serious doubt that the Holocaust occurred; B. it is unlikely that there were homicidal gas chambers at Auschwitz; C. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; D. some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed. 3. The respondent be restrained, and is hereby restrained, from publishing or pre-publishing to the public, by himself or by any other agent or employee, on the World Wide Web or otherwise: (a) the document headed "About the Adelaide Institute"; (b) any other material with substantially similar content to the document "About the Adelaide Institute"; and (c) any other material which conveys the following imputations or any of them - A. there is serious doubt that the Holocaust occurred; B. it is unlikely that there were homicidal gas chambers at Auschwitz; C. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; D. some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed. 4. This order is not intended to derogate from the time allowed by Order 2 hereof for the removal of material from World Wide Web websites controlled by the respondent or by the Adelaide Institute. 5. The respondent pay the applicant's costs of the proceeding, including reserved costs if any.

Branson J's reasons 6 Relevantly, her Honour found that the respondent controlled the Adelaide Institute and thereby was responsible for its actions, and for the material which was published on the Adelaide Institute's websites. She found that the material contained in the AI Document conveyed the imputations which were the subject matters of the orders mentioned above. She found that publishing material on a website which is not password protected had the effect of communicating that information to the public. Such publication allows persons who access the website with a browser to view the material. Her Honour described how the material moves through the World Wide Web by relying on the description given in the Canadian Human Rights Tribunal in Citron v Zündel (No 4) (2002) 41 CHRR D/74 at [60]: The Internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information. Two related sets of communication instructions, Transmission Control Protocol, (TCP) and Internet Protocol, (IP), govern how information will move through the system, defining addresses, routing systems, and all the regulation necessary to permit communication among users. 7 Her Honour also relied on the Tribunal's description of the World Wide Web at [67]: The World Wide Web, (the "Web"), is a specific application that uses the Internet to send and display data, including text, graphics, audio and video. There are two active components on the Web: a server that stores and transmits information, and a client or browser that requests, receives and displays the information obtained from the server. A "web site" is a collection of computer files that are coded in a specific way ... to allow information to be sent on request to a browser. The files are then displayed in a way consistent with the instructions provided by the creator of the web site. Every web site has a unique Uniform Resource Locator (URL), akin to their Internet address. Once connected to the Internet, the URL ... is necessary to gain access to a given web site ... 8 Her Honour found that publication of the AI Document on the World Wide Web amounted to conduct which was rendered unlawful by the Racial Discrimination Act and made a declaration accordingly. 9 Her Honour found that the AI Document and other material published by the respondent on the World Wide Web conveyed the imputations in paragraph 2 of the September 2002 orders. 10 Her Honour found that the first and second imputations would engender feelings of hurt and pain within members of the Jewish Community who would, by reason of the publication, consider themselves being treated contemptuously, disrespectfully and offensively. She also found that the third and fourth imputations would offend, insult, hurt and wound members of the Jewish Community and engender the same senses. 11 The judge found that the publication of the AI Document was unlawful under s 18C of the Racial Discrimination Act and that it was published because of the ethnic origin of the people in the group identified in the document, namely Jews and it was an act reasonably likely to humiliate and intimidate Jewish people. 12 The judge found that the respondent had not established any exceptions under s 18D of the Racial Discrimination Act. 13 Her Honour made a permanent injunction restraining the respondent first, from publishing to the public on the World Wide Web the AI Document or any document with substantially similar content to that document; and secondly, from publishing any material which would convey the imputations which she had previously found to be unlawful.

The respondent's reaction 14 The respondent appealed against the September 2002 orders. 15 The respondent deleted all material on the website within the time prescribed by paragraph 1 of her Honour's orders. That action indicates an awareness of the September 2002 orders. However, some time before 23 September 2002, the material which was contained in the AI Document was again published on the same website. 16 On 14 December 2002 the respondent attended the 3rd International Historical Revisionism Conference in Italy and published further material on the website. 17 On 5 February 2003 the respondent entered the September 2002 orders. Initially the respondent argued that the sealed order now on file did not reflect her Honour's reasons but that argument was abandoned.

The respondent's appeal 18 On 22 April 2003 the respondent filed an amended notice of appeal against the September 2002 orders. The notice of appeal did not challenge the finding made by Branson J that publication of the material was conduct which was rendered unlawful by s 18C of the Racial Discrimination Act, being conduct which was reasonably likely in all the circumstances to offend, insult, humiliate and intimidate the groups or persons identified by her Honour. 19 Three matters were argued on the appeal. First, that Part IIA of the Racial Discrimination Act was unconstitutional. Secondly, the material which had been published on the website did not have a sufficient degree of causal connection with race, colour or national or ethnic origin as required by s 18C of the Racial Discrimination Act. Thirdly, the published material fell within the exemption to the provisions of Part IIA in s 18D. 20 In May 2003, at or about the time the matter was heard by the Full Court, the respondent published on the website "that the appeal would signal how strong the Jewish Zionist influence is in Australia's judiciary where a battle rages between common law and talmudic law." 21 The Full Court dismissed the respondent's challenge to the validity of Part IIA of the Racial Discrimination Act. Carr and Kiefel JJ found that the provisions of Part IIA were supported by the external affairs power. Allsop J found that Part IIA, ss 18C and 18C(1)(b) "in its statutory context, are reasonably capable of being considered as appropriate and adopted to implement the obligations ... assumed by Australia" under the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 7 March 1966. The Full Court found that the AI Document was calculated to offend in itself those who maintain that the holocaust occurred and, in particular, Jewish people. It concluded at least one reason the AI Document was published was because of the race or ethnic origin of Jewish Australians. It found that the AI Document was deliberately provocative and inflammatory, and contrived to smear Jews. It rejected the respondent's contention that he was entitled to an exemption by reason of s 18D(b) which provides that s 18C does not render unlawful anything said or done reasonably and in good faith in the course of any publication made for genuine academic or other genuine purpose in the public interest. 22 In particular, Carr J (with whom Alsop J agreed) said in relation to the last matter (Toben v Jones (2003) 129 FCR 515 at [43]): In my opinion the contents of the document, taken as a whole, do not establish on the balance of probabilities that publication by the respondent of it was done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest. In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views. In my opinion, the Document shows that the appellant made no such effort. On the contrary, the terms of the Document are, in my view, deliberately provocative and inflammatory. The reference to the Lenin and Stalin eras was, in my opinion, contrived to smear those on the receiving end of the appellant's message. The appellant described the Jews as "also murderers". This reference was made almost as an aside, clearly to paint the Jews in a bad light, before the author resumed his flamboyantly-worded challenge. I think that the primary judge was correct in finding that there was no proof of good faith. I would go further and hold that there is no proof that the publication was done reasonably or in good faith.

The respondent's publications after the Full Court decision and before 16 November 2006 23 Between the delivery of judgment by the Full Court and November 2006, the respondent published on the website a plethora of information which is contained in Exhibit "JJ1" to the applicant's affidavit sworn on 1 November 2006 and which had been read by the applicant on 18 August 2006 and was subsequently re-read on 11 October 2007. 24 I set out a summary of the applicant's claims of breaches of the September 2002 orders occurring after those orders were made and before 16 November 2006: July 2003 Attributes ulterior motives to what it describes as "Holocaust propaganda". Refers to Diary of Anne Frank as one of "those self-serving Holocaust frauds", to "Holocaust stories and myths", and repeatedly to the "Holocaust lie". September 2003 Attacks the decision of the Full Court and "extremist Jews" said to be currently "over-represented in politics, the media and the judiciary", refers to "historical lies such as the drummed up six-million lies" and to the "filthy lie" of the "Holohoax". 9 October 2003 It contains repeated denials that the Holocaust ever happened accompanied by viciously racist and antisemitic statements. 10-11 October 2003 It contains repeated denials that the Holocaust happened and says that the respondent is "pushing the limits of a Federal Court of Australia gag order, and pressuring the upholders of the Holocaust orthodoxy to admit they are living on [!] a lie". 3 January 2004 Refers to the "holocaust dogma of Judaism" being used to enslave Christian Germany and the rest of the world and as propaganda to achieve the creation of Israel and to get money by blackmail and extortion. February 2004 Refers to Holocaust museums and reparations claims as "just a gimmick to collect money". Case proven that the holocaust was a hoax. There were no gas chambers. March 2004 Refers to the "'Hitler gas chamber legend'", "the non-existent 'Hitler gas chambers'" and Holocaust myths as propagated by Jews, the Soviets and others for ulterior purposes and describes the Jewish author of a book on Holocaust revisionism as a "Holocaust Pimp". States "the holocaust is a lie", that school education teaches "the lies of the holocaust" and refers to "the Auschwitz Lie". The Germans had no gas chambers, no gas vans, and did not commit any inexcusable crimes. Revisionists understand that the holocaust did not happen. November 2005 Refers inter alia to "more Holocaust rubbish", "'Holocaust' educational fraud program", a "tsunami of lies" preventing discussion of Nazi extermination of Jews in homicidal gas chambers, the "Hoaxoco$t Blood Libel", "the hoax of the century" etc and contains grossly antisemitic, racist and hate-filled material about Jews and the Holocaust. January 2005 A report in The Tehran Times on 29 December 2005 of an interview with him, which was still there on 24 April 2008 and 23 May 2008, containing inter alia the following: Fredrick Toben, the director of the Adelaide Institute in Australia, believes that Israel was created based on the Holocaust myth. On December 19, the Mehr News Agency conducted an interview with Toben to ask why Western countries were so outraged when Iranian President Mahmud Ahmadinejad called the Holocaust a myth. Following is the text of the interview: Q: The Iranian president said that he thinks that the Holocaust is a myth. However, he also said some European countries insist that millions of innocent Jews were killed during the Second World War by Hitler, and asked why the Europeans don't give part of their land to the Jews if they are correct. What is your view? A: The Holocaust is a lie because none of its three main pillars on which it rests are factually true or proven. 1. Germany - Hitler systematically exterminated European Jewry. There is simply no proof of this claim - it was a transfer of Jews, and together with Zionist collaboration, German Jews arrived in Palestine - with their property. Others were moved out of German territory - and Auschwitz was a transit camp. 2. The killing was done in huge chemical slaughterhouses - homicidal gas chambers. This is a technical impossibility because you can work out how long it would take, for example, to kill one million people - the size of a city like Adelaide - without anyone finding out about it. The world soon found out President Bush lied about Iraq's Weapons of Mass Destruction - that lie didn't last even one year. 3. Six million Jews were killed - this number is mythical/religious - and although at one time the numbers killed at Auschwitz was claimed to be 4 million, then reduced to 1-1.5 million, and now to around 500,000, the six million remains the same. Why? Anyone who questions these three points is imprisoned - and Revisionists must ask these questions if they wish to know the facts about the Holocaust story. February 2006 Refers to the Holocaust as the "alleged Holocaust of the Jews, a lie whose ravages, wrought for more than half a century now ... are a disaster that worsens from year to year", a legend or myth, "a gigantic slander, blackmail and extortion operation", an imposture for ulterior purposes, "dumb as doggy dodo Sixpackers", "the hoaxaco$t fairytale", "elite Jewry's shakedown of the Swiss banks", "Jews who expected some payout for their time spent at the Awshucks labour camp", "embezzlers", "the Auschwitz Lie", "the holocaust fable" etc. 2 March 2006 Contains antisemitic, racist material of the worst kind and is endorsed by the respondent with the banner and motto of the Adelaide Institute and a copyright-free notation at the end of it. March 2006 Praises Ahmadinejad for his denial of the Holocaust and refers to the Holocaust as "a deliberately contrived falsehood" and a hoax with a Zionist provenance and motivation. March 2006 Refers to the "Holocaust" lie and hoax propagated by the Jews for ulterior motives and out of hatred, made derogatory comments about the applicant, whom he referred to as "Australia's own paranoid Jew", referred to the Holocaust as a propaganda weapon to create world sympathy for Israel, said he was testing the limits of free speech, and stated that the Holocaust is a "myth/lie" and that Holocaust believers are either ignorant or liars. April 2006 Says the myth of the Holocaust was used to create and defend Israel, the gas chambers never existed at Auschwitz or anywhere else, the Holocaust is an extraordinarily profitable lie and a swindle. 16 November 2006 Notice of motion and supporting affidavit JJ1 filed commencing proceeding for contempt.

The notice of motion of 16 November 2006 25 On 16 November 2006 the applicant filed a notice of motion seeking an order that Dr Toben be found guilty of contempt for failing to comply with the September 2002 orders made by Branson J claiming that Dr Toben had published or republished to the public material which infringed the orders made by her Honour. The applicant sought an order that "the respondent be punished for contempt including that the respondent be committed to imprisonment for disobedience of the said order of this Court and that a warrant be issued accordingly". The notice of motion was accompanied by a Statement of Charge in conformity with O 40 r 5 of the Federal Court Rules 1979. 26 A Second Further Amended Statement of Charge was filed on 2 November 2007 which was the Statement of Charge under consideration when the matter came before Moore J. It was in the following terms: 1. The respondent is guilty of contempt of the Court in that in wilful and/or contumacious disobedience of an order made by her Honour Justice Branson on 17 September 2002 ("Order"), the respondent published or republished to the public, by himself or by any agent or employee: (a) On the World Wide Web material which conveyed the following imputations or any of them: A There is serious doubt that the Holocaust occurred ("Imputation A"); B It is unlikely that there were homicidal gas chambers at Auschwitz ("Imputation B"); C Jewish people who are offended by and challenge Holocaust denial are of limited intelligence ("Imputation C"); D Some Jewish people for improper purposes including financial gain have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed ("Imputation D"). (b) On the World Wide Web the document headed "About the Adelaide Institute". Particulars of Charge 1. The respondent did on 18 August 2006 and 11 October 2007 publish or republish to the public, by himself or by any agent or employee, on the World Wide Web at the website address specified in the third column of the Schedule annexed hereto and marked "A" ("the Schedule"), the material contained in the hypertext mark up language (htm) file named in the third column of the Schedule at the pages specified in the fourth column of the Schedule, (which material is reproduced in exhibit "JJ1" to the affidavit of Jeremy Jones sworn 1 November 2006). The said material, contrary to the Order, conveys the imputations as follows (row numbers are specified in column one of the Schedule): (i) Imputation A: the material identified in rows 1 to 81 inclusive of the Schedule; (ii) Imputation B: the material identified in rows 82 to 117 inclusive of the Schedule; (iii) Imputation C: the material identified in rows 119 to 122 inclusive of the Schedule; (iv) Imputation D: the material identified in rows 123 to 144 inclusive of the Schedule. 2. The respondent did publish or republish the document headed "About the Adelaide Institute" to the public, by himself or by any agent or employee, on the World Wide Web during or about August 2007, and again on 31 October 2007, as part of the Adelaide Institute Newsletter No 346 and on 31 October 2007 at the foot of the pages of the Newsletters/Archive sections on the said website for Newsletters 50-88 and 93-112 respectively. 27 Attached to that Second Further Amended Statement of Charge was Schedule A. Schedule A identified 144 separate statements of fact (sometimes in these reasons called "items") which were said to have been published on the World Wide Web and to give rise to the four imputations identified in the September 2002 orders. The first imputation that "[t]here is no serious doubt that the Holocaust occurred" was said to arise out of statements of fact numbered 1-81. The second imputation that "[i]t is unlikely that there were homicidal gas chambers at Auschwitz" was said to arise out of the statements of fact numbered 81-117. The third imputation that "Jewish people who are offended by and challenge Holocaust denial are of limited intelligence" was said to arise out of statements of fact numbered 119-122. The fourth and last imputation "[s]ome Jewish people, for improper purposes (including financial gain) have exaggerated the number of Jews killed during WWII and the circumstances in which they were killed" is asserted to arise in statements of fact numbered 123-144.

The hearing before Moore J on 27 November 2007 28 On 27 November 2007 the notice of motion alleging contempt came on before Moore J. Mr Margo SC, who appeared for the applicant, informed the Court that the respondent wished to purge his contempt by agreeing to give undertakings to the Court and to the applicant to comply with the orders made by Branson J. The respondent was represented by counsel (pro bono) who said: I do note, your Honour, simply in passing that there were, we say, some substantive arguments about the delay and some particularity of the statement of charge, and we would have argued some questions of the ambiguity of at least (a) and (b) of the orders, but Dr Toben nevertheless accepts the terms of the orders, but I wouldn't want it to be said that this was necessarily a fait accompli from Dr Toben's point of view, but he accepts that there are aspects of the material which clearly breach the orders and has agreed to comply by consent with the short minutes of order as set out. 29 The respondent apologised to the Court for his contempt of Branson J's orders and gave an undertaking (the November 2007 undertaking) in the following terms: MR TOBEN: I undertake to the court that I will comply henceforth with the orders of Branson J made in these proceedings. Further, to remove all files and material identified in the second further amendment (sic) statement of charge, the material from the Adelaide Institute website and from all other Worldwide websites, the content of which is controlled by myself or the Adelaide Institute by no later than 4 pm on 5 December 2007, and without limiting undertaking (a), not cause any of the material to be replaced on the Worldwide web. HIS HONOUR: Thank you. MR MARGO: Your Honour, I note that Dr Toben, I'm sure inadvertently, omitted to give those undertaking to the applicant. HIS HONOUR: Can you give those undertakings to the applicant as well? MR TOBEN: Of course. Of course I do. HIS HONOUR: Well, I note both your apology, Mr Toben and the undertaking you've given and I also note the agreement between the parties in relation to costs which is embodied in paragraph 7. Having regard to both the apology and the undertaking I will make the orders that have been agreed between the parties, namely orders 1 through to 4.

The November 2007 orders 30 Justice Moore noted the respondent's apology and undertaking, and made the following orders (the November 2007 orders): By consent, the Court orders that: 1. Leave is granted to the applicant to rely on the Second Further Amended Statement of Charge filed on 3 November 2007 (sic). 2. The Notice of Motion is stood over until 28 February 2008, at 9.30am. 3. Liberty is reserved to the applicant to apply on 48 hours' notice to re-list the Motion and in that event leave is granted to the applicant further to amend the Second Further Amended Statement of Charge to include any alleged contempt arising or discovered after the date of these orders. 4. Costs of the Motion are reserved subject to the agreement of the parties referred to in paragraph 7.

The November 2007 undertaking 31 The undertaking given by Dr Toben was noted by the Court in the November 2007 orders: 5. The respondent's apology to the Court for the contempt committed by him of the Orders of Branson J made in these proceedings. 6. The respondent's undertaking to the Court and the applicant: (a) to comply henceforth with the Orders of Branson J made in these proceedings; (b) further, to remove all files and material identified in the Second Further Amended Statement of Charge ("the Material") from http://adelaideinstitute.org and from all other World Wide Web websites the content of which is controlled by him or the Adelaide Institute by no later than 4.00pm on 5 December 2007; and (c) without limiting undertaking (a), not cause any of the Material to be replaced on the World Wide Web. 7. The Court notes the agreement of the parties that no application will be made for costs if and for so long as the Respondent complies with each of his said undertakings.

The respondent's reaction 32 On the same day the respondent published on the website of the Adelaide Institute (www.adelaideinstitute.org): THE TRIAL - DAY ONE: 27 November 2007 ____________________________________________________________________ On Monday, 26 November 2006, around 19:00 hours it was agreed - essentially under duress? - by both parties that the following Consent Orders would be submitted to His Honour Justice M Moore. Counsel for Jeremy Jones, Mr Margo, waxed lyrically how upon appeal Kiefel, Carr, Alsop JJ, had upheld Branson's ruling that the material caused great hurt to Jeremy Jones and Jewish Australians.*** *Justice Moore accepted the Orders and requested that Fredrick Töben read out the undertaking as per below without qualifications: [The November 2007 orders were then reproduced including the matters noted by the Court.] *****Fredrick Töben comments: Now is the time to begin an action in the courts to state how hurtful any mention of the Holocaust is to German Australians, especially because through such orders, as above, it is not permitted openly to discuss the factuality of any claim made by any Holocaust survivor. Now more than ever it is still possible to defame anyone with the Holocaust allegations - and get away with it because courts have sanctioned such defamation actions. A sad day for free expression, really - still, I shall attempt to comply for a fourth time with such orders. [He then referred to correspondence he had with Goldberg J which is irrelevant to this application.]

The Australian Jewish News article 33 After 27 November 2007 and on or before 29 November 2007 Mr Lewis, the applicant's solicitor, apparently spoke to the Australian Jewish News about the hearing before Moore J. The Australian Jewish News published an article: Töben gives Holocaust denial apology in court PETER KOHN AJN NOVEMBER 29 2007 DR Fredrick Töben this week gave an apology in the Federal Court of Australia for being in contempt of court by continually featuring Holocaust denial material on his Adelaide Institute website. He gave the apology during a contempt hearing of the Federal Court sitting in Adelaide on Tuesday. After being called up to the bar by Justice Michael Moore to apologise if he agreed with it, Dr Töben began to give a qualified apology. When Justice Moore said that his comments were inconsistent with an apology, Dr Töben gave a full apology, without embellishment and undertook to remove all Holocaust denial material from the website by 4pm on December 5 and not to replace it. Solicitor Steven Lewis of legal firm Slater & Gordon said after the hearing: "It's a significant victory for the community. The ECAJ was vindicated in their actions and has forced him to acknowledge his contempt of court and remove the offending material." The case was adjourned to February 28, when applicant Jeremy Jones of the ECAJ, represented by senior counsel Robin Margo SC, will have an opportunity to complain about any continuing breaches of the court orders. When The AJN checked the Adelaide Institute website hours after the hearing ended, it still featured denial material as well as comments that apparently contradicted his unqualified court apology. A summary of the hearing on the website referred to an apology being given "under duress?" which Lewis said he would take up with Dr Töben next week. In 2002, the ECAJ won a landmark court case when a Federal Court judge ordered Dr Töben to remove all material denying the Holocaust from his Adelaide Institute website, an order he subsequently breached. This week's court hearing is the culmination of a 10-month battle that began when contempt orders were served on Dr Toben by the Federal Court, after he returned from a Holocaust denial conference in Iran in January. http://www.ajn.com.au/news/news.asp?pgID=4542

The respondent threatens to withdraw from the consent agreement 34 On 30 November 2007 the respondent emailed the applicant's solicitor a copy of which he sent to his barrister: TÖBEN CONSIDERING WITHDRAWAL FROM CONSENT AGREEMENT Fredrick Töben comments: Well, it's on. The article below clearly relies on an interpretation of what happened before Justice Michael Moore in the Federal Court of Australia on Tuesday, 27 November 2007 - an interpretation that was not explicitly nor implicitly canvassed before the Consent Agreement was written up. If the below interpretation is consistent with the Consent Order, then I hereby publicly state I am withdrawing from the Consent Agreement, and although I have begun deleting material from the website, as part of the undertaking given to the Court and to the Applicant, I am now stopping this action. I am awaiting advice and instructions from my Barrister Mr Paul Charman. Fredrick Töben Adelaide 12.15 hours 30 November 2007 35 The "article below" referred to in the email to the applicant's solicitor was the article published in the Australian Jewish News. The account of his apology to Moore J and the email was, as can be seen, published on the Adelaide Institute website. 36 On the same day (12 minutes later), an email was sent to Moore J's associate which was in the same terms as that sent to Mr Lewis. 37 On Sunday, 2 December 2007 the respondent emailed Moore J's associate (again sending a copy to his barrister). He wrote: Dear Associate Samantha Edwards I would be pleased if you could forward this email to His Honour, Justice Michael Moore - and it is being copied to the Applicant's Solicitor, Mr Steven Lewis, and to my Barrister, Mr Paul Charman. =========== Dear Justice Moore 1. The below email from Google News Alert speaks for itself - the world has been informed of a deception - of my recanting my >Holocaust denialTöben gives Holocaust denial apology in courtThe ECAJ was vindicated in their actions and has forced him to acknowledge his contempt of court and remove the offending material.>OWING TO A LEGAL DISPUTE THIS WEBSITE FROM 2 DECEMBER 2007 WILL CEASE TO BE UPDATEDHolocaust< is: 1. a lie; 2. six million Jews never died, or 3. the gas chambers did not exist, then I would claim that I am merely reporting on what expert Revisionists such as Professors Butz/Faurisson, et al, are stating in public. Anyone who refuses to believe in these three pillars of orthodoxy will face a world-wide group of enforcers who will use any means to destroy dissenting voices. The problem is that these pillars are not set in concrete, though attempts at setting them in legal concrete have been under way for decades - without success. 269 Item 17 of Schedule C is the same document as is identified as Item 8 to which I have already referred in respect to the claim that the first imputation is conveyed by the material. 270 I am satisfied that Mr Lewis viewed material on the Adelaide Institute website on 24 June 2008 which conveyed the imputation that "it is unlikely that there were homicidal gas chambers at Auschwitz". 271 I find charges 14 and 25 proved.

Charge 15 and Charge 26 272 These charges allege that the respondent was guilty of contempt in that he published to the public on 25 June 2008 on the World Wide Web material which conveyed the four imputations, the subject matter of the September 2002 orders. 273 However, the particulars again rely only upon the publication of material which conveyed the imputations that "there is a serious doubt that the Holocaust occurred" and "it is unlikely that there were homicidal gas chambers at Auschwitz". 274 The material relied on for the first imputation is items 1-18 of Schedule D and in respect of the second imputation items 19-29 of Schedule D. 275 Mr Lewis has deposed in his affidavit of 26 June 2008 that he accessed the Adelaide Institute website on 25 June 2008 and read each of the documents which are contained in Exhibit JJ3 to Mr Jones' affidavit of 25 April 2008 (JJ4). 276 The information relied upon in the particulars is the same information which was relied upon for the particulars to charge 11 and charge 22. There is no need to repeat the publications which I have already found establish that both of the imputations were conveyed. 277 For the reasons given in relation to charges 11 and 22, I find charge 15 and charge 26 have been proved.

Charge 27 278 The respondent undertook in November 2007 to remove all files and materials identified in the Second Further Amended Statement of Charge from http://adelaideinstitute.org and from all other World Wide Websites, the content of which was controlled by him or the Adelaide Institute by no later than 4.00 pm on 5 December 2007. 279 The undertaking referred to the statements of fact which were accessible on the websites, which were identified in Schedule A to the Second Further Amended Statement of Charge filed on 2 November 2007. 280 On 13 December 2007 the applicant swore an affidavit in which he said that he accessed the Adelaide Institute website on 11 December 2007 and observed that: (1) items 18, 68-81, 94-101, 110-117, 119, 143 and 144 had been masked; (2) items 1-17, 19-67, 82-93, 103-109 and 120-142 had been deleted; and (3) item 102 could not be accessed. 281 He further deposed that the material which had been masked in (1) above could be read by moving the cursor over the masking. Moreover, he observed that the material, being the complete documents which were located at the website as set out in the second column of Schedule A under the heading "Source", had not been removed from the website. Thirdly, he read the AI Document as part of Adelaide Institute "Newsletter 346". He also found and read the AI Document at three further locations on the Adelaide Institute website, namely Newsletters/Archives/Newsletters 50-88, Newsletters/Archives/Newsletters 93-112, and Newsletters/Archives/Newsletters113-128. 282 Mr Jones' evidence is uncontroverted. The respondent was obliged in accordance with the undertaking noted in paragraph 6(b) of the November 2007 undertakings to remove the material which Mr Jones observed on the Adelaide Institute website by 5 December 2007. I am satisfied that the applicant has established that the respondent has breached his undertaking given in November 2007 in respect of the information contained in items 18, 68-81, 94-101, 110-117, 119, 143 and 144, and the AI Document insofar as the latter document was contained in the Adelaide Institute Newsletter 346 and was accessible in the Newsletters/Archives sections for newsletters 50-88, 93-112 and 113-128. 283 In making that finding, of course, I not only rely upon the evidence of Mr Jones insofar as he said he accessed the website and viewed the material but also the evidence to which I have earlier referred where Dr Toben made it plain very shortly after 27 November 2007 that the apology which he had given to the Court was withdrawn and that he would not comply with the undertaking given on 27 November 2007. 284 For all those reasons, I am satisfied beyond reasonable doubt that Mr Jones viewed that which he deposed to on 13 December 2007. I find the charges proved. 285 I should say that this charge relies upon the same material as charge 18. As already noted, that charge is for the breach by the respondent of the November 2007 undertaking as recorded in paragraph 6(a) of the November 2007 orders. Paragraph 6(a) of the November 2007 orders required the respondent to comply with the orders made by Justice Branson which included, of course, an obligation to remove the material mentioned in paragraph 2(a) of the September 2002 orders. The material in charge 18 is the material referred to in charge 7 which is the same material in this charge.

Charge 28 286 This charge relates to a breach of the same undertaking given by the respondent as charge 27, except on this occasion the charge relates to the failure by the respondent to honour his undertaking as at 24 June 2008. 287 Mr Lewis swore an affidavit on 26 June 2008 in which he deposes that on 24 June 2008 he accessed the Adelaide Institute website and, by way of link, accessed the pages of the Newsletters/Archives section for newsletters 50-88 and 93-112. 288 By reason of access to both of those sites, he obtained access to the AI Document. Such access was available to the general public. 289 In my opinion, Mr Lewis' evidence establishes to the required level of satisfaction that the respondent breached the November 2007 undertaking as recorded in paragraph 6(b) of the notes to the orders made by Moore J on that date. 290 I am also satisfied by the evidence earlier referred to that Dr Toben publicly claimed, shortly after 27 November 2007, that the apology which he had provided to the Court on 27 November 2007 was withdrawn and that he would not comply with the undertakings given to Moore J on that date. 291 In my opinion, that evidence supports the uncontroverted evidence of Mr Lewis. 292 Charge 28 has been proved.

Contumacy 293 I have found each of charges 5 to 28 proved beyond reasonable doubt. Where the charge alleged that imputations were conveyed by the publication of the material on the Adelaide Institute website, it must be understood that I have found the charge proved in accordance with the particulars and, if those particulars raise only two of the four imputations, in relation to those two imputations. 294 I should address the question of contumacy because it is important in classifying the contempt and in considering any penalty to determine whether the disobedience to the order has been wilful or contumacious: Mudginberri Station 161 CLR 98 at 105-107 and 111-113. 295 I am satisfied beyond reasonable doubt that the separate publications on the Adelaide Institute website of the material which has established each of the charges which I have found proven was wilful and contumacious. The fact that the AI Document has appeared regularly on the Adelaide Institute website on each of the days accessed and can be accessed through a number of the Adelaide Institute newsletters is evidence of a wilful and contumacious disobedience of the September 2002 orders and the November 2007 undertaking. 296 Moreover, the number of statements which have been identified by the applicant in support of the charges giving rise to the imputations, in particular imputations 1 and 2 of the September 2002 orders which I have found proven on the various dates upon which the Adelaide Institute website was accessed, shows a wilful and contumacious disregard of the September 2002 orders and the November 2007 undertaking. 297 Dr Toben's behaviour immediately following the 27 November 2007 hearing before Moore J and the article published in the Australian Jewish News of that hearing is further evidence of his wilful and contumacious disobedience of the September 2002 orders and the November 2007 undertaking. His correspondence with the applicant and Moore J's associate is further evidence of contumacy. He said there that he was "withdrawing from the Consent Agreement and although I have begun deleting material from the website, as part of the undertaking given to the Court and to the Applicant, I am now stopping the action". He was advised by his barrister to comply with the September 2002 orders and with the terms of the agreement but he replied: There are now too many moral and legal principles at stake here, which a simple deletion of the material would merely further compromise, something I am not prepared to accept without having them clarified in open court. 298 His conduct at that time is one of publicly expressed deliberate and calculated disobedience to orders made by this Court and undertakings given to the Court. 299 Moreover, some of the publications themselves establish the contumacy of his conduct. Dr Toben has published material on a number of occasions which shows that he does not accept the underlying reasons for the September 2002 orders which were confirmed by the Full Court. He apparently does not accept that the applicant should be entitled to call in aid the Court to restrain him from publishing material which is vilifactory of the Jewish race by reason of their race. He is also not prepared to accept that the Court has made its decision that the publication of the AI Document and of material which conveys the imputations in the September 2002 orders is conduct which is rendered unlawful by a valid Act of the Parliament of the Commonwealth. 300 The Courts have held, but his conduct shows he does not accept, that the freedom of speech citizens of this country enjoy does not include the freedom to publish material calculated to offend, insult or humiliate or intimidate people because of their race, colour or national or ethnic origin. His conduct has been proved to be wilful and contumacious because he has steadfastly refused to comply with a law of the Commonwealth Parliament and refused to recognise the authority of this Court. 301 I am satisfied therefore that the applicant has proved that the conduct in publishing the information which was relied upon for proof of charges 5 to 28 was a wilful and contumacious contempt of court. It is conduct that amounts to criminal contempt.

Conclusion 302 I shall dismiss the applicant's notices of motion, make the orders under O 37 r 2, dismiss charges 1 to 4 and make a declaration in respect of the charge of contempt. 303 That leaves for consideration the question of penalty upon which I shall hear the parties. I certify that the preceding three hundred and three (303) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 16 April 2009 Counsel for the Applicant: Mr R Margo SC

Electoral Act 1918(Cth)

World Youth Day Act 2006(NSW)

Federal Court Rules 1979(Cth)

World Youth Day Regulation 2008(NSW)

CONTEMPT - disobedience of orders made in 2002 - undertakings made to the Court in 2007 to comply with 2002 orders - orders followed declaration that respondent had contravened Part IIA of the Racial Discrimination Act 1975 (Cth) - for publication of racially vilifactory material on World Wide Web - contempt proceedings must realistically be seen as criminal in nature - charge must be proved beyond reasonable doubt - whether respondent acted wilfully and contumaciously - whether orders were subject to statutory exemptions - orders ought to be understood as only preventing the respondent from doing something which is unlawful - orders also confirm that publication of relevant material was unlawful - whether preamble to Australian Citizenship Act 2007 (Cth) renders orders "nugatory" - respondent not deprived of any rights attaching to citizenship - orders required respondent to make a subjective assessment - whether orders vague, uncertain or imprecise - whether respondent provoked into breaching undertaking by applicant's publication in media - orders and undertaking operated until varied or revoked and for all circumstances - whether appropriate to dispense with service in accordance with O 37 r 2(6) - publication of material proved beyond reasonable doubt - separate publications of material were wilful and contumacious contempt of court EVIDENCE - admissions and declarations - applicant sought to tender parts of respondent's affidavits that contained admissions - operation of s 135 of the Evidence Act 1995 (Cth) - affidavits tendered before contempt charges laid - respondent was unrepresented when affidavits filed - admissions likely to be unfairly prejudicial - tender rejected PRACTICE AND PROCEDURE - contempt - where some charges previously heard and determined by reason of undertaking given in 2007 - no evidence the applicant reserved to himself the right to prosecute the proceedings for contempt if respondent breached undertaking - not possible to make those charges again PRACTICE AND PROCEDURE - contempt - application for stay of charges on grounds they were inherently duplicitous - charges not duplicitous because they can be proved by more than one piece of evidence - charges reflected orders made in 2002 - contempt is in publishing on a particular day on the particular website material which conveys any of the imputations identified in orders - charge as drawn not embarrassing PRACTICE AND PROCEDURE - interlocutory application - seeking suspension of operation and effect of orders and relief from undertaking - where undertaking was to comply with previous orders of the Court - where respondent tendered no evidence - application dismissed Australian Citizenship Act 2007 (Cth) Electoral Act 1918 (Cth) Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Racial Discrimination Act 1975 (Cth) World Youth Day Act 2006 (NSW) Federal Court Rules 1979 (Cth) World Youth Day Regulation 2008 (NSW) AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 applied Attorney-General v Punch Ltd (2003) 1 All ER 289 referred to Attorney-General v Times Newspapers [1974] AC 273 cited Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 applied Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 cited Biba Ltd v Stratford Investments Ltd [1973] Ch 281 cited Citron v Zündel (No 4) (2002) 41 CHRR D/74referred to Evans v New South Wales (2008) 168 FCR 576 distinguished Fig Tree Developments Ltd v Australian Property Custodial Holdings [2008] FCA 1041 distinguished ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 referred to Jones v Scully (2002) 120 FCR 243 cited Longhurst v Hunt [2004] NSWCA 91 cited Milburn v Newton Colliery (1908) 52 S.J. 317Roach v Electoral Commission (2007) 233 CLR 162 cited Telstra Corporation Ltd v SingTel Optus Pty Ltd [2007] FCA 824 referred to The King v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 applied The King v Nicholls (1911) 12 CLR 280 cited Toben v Jones (2003) 129 FCR 515 referred to Universal Music Australia Pty Ltd v Sharman Network Ltd [2006] FCAFC 41 cited Wimpole v McIlwraith [1923] VLR 553 applied Windsurfing International Inc v Sailboard Australia Pty Ltd (1986) 19 FCR 110 cited Witham v Holloway (1995) 183 CLR 525 applied JEREMY JONES v FREDERICK TOBEN

At a glance

Court

Decision date

Before

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Judgment (19 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (17)

Cited By (5)