Toben v Jones

REASONS FOR JUDGMENT 1 By application made on 10 April 2012, and amended on 20 April 2012, the applicant Gerald Toben applied for interlocutory orders that: 1. the Bill of Costs filed on 27 February 2012 by the respondent be struck off with costs to be taxed and paid forthwith; 2. that an injunction be granted to restrain the respondent and others (including persons who are not respondents to the proceeding and had not been served with it) from pursuing the Bill of Costs or any further application for costs; and 3. that the respondent be declared a vexatious litigant in pursuing the present proceedings (apparently referring to the process of taxing costs). 2 Obviously, no orders can or should be made against persons who are not parties to this application and have not been served with it; I shall treat Order 2 as sought only against the respondent. 3 The applicant accepted that he could not proceed with the order seeking to have the respondent declared a vexatious litigant on the present interlocutory application. He accepted that he had not given sufficient notice for that application to be pursued at this point. In addition, the Court pointed out to him that provisions of r 6.02 of the Federal Court Rules 2011, the need to demonstrate his eligibility to make the application, and if he has that eligibility the need to frame the relief expressed in terms of the Rule. It was accepted that, on this application, the Court need not further consider that particular matter. If that part of the interlocutory application is, as appears likely, intended to be an application to strike out the process of the respondent taxing the costs ordered on 13 May 2009 as an abuse of the process of the Court, the point is much the same as that which is to be considered in respect of Orders 1 and 2. 4 Given the orders which I propose to make in relation to Orders 1 and 2 as sought, and that in any event any order in respect of Order 3 could not prevent the process of taxing costs ordered on 13 May 2009 in the time, I propose also to direct that Order 3 be refused, but that order not be sealed for a period of 28 days and to give the applicant leave to file and serve within 21 days such written submission as he may be advised to support the present paragraph 3 of his interlocutory application or to seek leave to amend it (including the terms of the amendment) and an outline of his submissions that there is a basis for pursuing that belief on the interlocutory application. If he does not do so, that part of the application is also to be refused. If he does do so, I will give leave to the respondent within 14 days to file and serve written submissions on whether to strike out the application as it stands, or as proposed to be amended. I will then determine whether to allow it to proceed after considering the written submissions. 5 I revert to the two primary claims of relief. 6 They obviously intersect. 7 The background is quite straightforward. 8 On 16 April 2009, Lander J delivered a judgment in this proceeding: Jones v Toben [2009] FCA 354. The orders then made included a declaratory order that the present applicant had been guilty of wilful and contumacious contempt of Court on a series of occasions. The question of penalty was deferred to a later date. 9 On 13 May 2009, Lander J made orders dealing with the question of penalty for that contempt. Inter alia, Order 2 of the orders included an order that the present applicant pay the present respondent's costs on a party and party basis. That is the order for costs in respect of which the present taxation (the subject of the interlocutory application) has been made. 10 There is an intervening event to notice. The applicant appealed from the decision and orders of Lander J. The appeal was subsequently heard and dismissed: Toben v Jones [2009] FCAFC 104. When that appeal was dismissed, the present applicant (the then appellant) was directed to pay the present respondent's costs of the appeal. Those costs were subsequently taxed and fixed at the sum of $56,435.72. 11 By motion of 15 April 2011, the applicant applied to set aside the order fixing those costs in that sum. That application was itself dismissed with costs on 8 July 2011: Toben v Jones (No 3) [2011] FCA 767. 12 The present proceeding, as noted above, relates to the order for costs made on 13 May 2009 by Lander J. On 27 February 2012, the respondent applied for those costs to be taxed. The Bill of Costs was served upon the applicant on 19 March 2012. The taxing officer, a Deputy Registrar of the Court, had proceeded to estimate the amount of that bill in accordance with the Federal Court Rules 2011. The process of taxing was deferred, however, pending the outcome of the present interlocutory proceedings. 13 There were two grounds upon which the applicant sought to support the Orders 1 and 2 which he sought. The first was that the processes of enforcing the costs order and the taxed costs in respect of the appeal had resulted in the extinguishment of any other liability for costs in respect of the costs order of 13 May 2009. The second is that it was an abuse of the process of the Court to endeavour to pursue the costs ordered on 13 May 2009 because the respondent was not motivated by a genuine endeavour to recover costs, but to "effect the legal persecution" of the applicant. 14 The first ground of the application is misconceived and must fail. 15 The evidence indicates that, following the taxing of the appeal costs, they were not paid in a timely manner. To enforce them, the respondent issued a bankruptcy notice duly served upon the applicant. The failure to comply with the bankruptcy notice would constitute an act of bankruptcy, and might therefore found the making of a sequestration order under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) in respect of the estate of the applicant. The applicant apparently failed to comply with the bankruptcy notice within the time permitted. Subsequently a creditor's petition was issued by the respondent against the applicant in proceedings in the Federal Magistrates Court of Australia (Matter SYG 855/2011). The applicant then arranged to pay the amount of those costs, together with the costs of the creditor's petition. On that basis, on 28 June 2011 the creditor's petition was dismissed. 16 The applicant did not therefore at any time become a bankrupt. The operation of s 58 of the Bankruptcy Act was not enlivened. Consequently, there is no basis upon which the applicant can assert that enforcing the costs order of 13 May 2009, assuming it to be a liability of the applicant to the respondent which existed at the time of the creditor's petition, cannot as a matter of law by reason of provisions of the Bankruptcy Act now be enforced. The process for administration of property under Pt VI of the Bankruptcy Act was not enlivened. That includes the process by which, if a sequestration order had been made over the estate of the applicant, debts existing at the commencement of the bankruptcy would have to be proved in the bankruptcy. Nor does s 153 of the Bankruptcy Act apply, that is, the provision which provides that the effect of a discharge from bankruptcy is to release the bankrupt from all debts which were provable in the bankruptcy. There was simply no order that the applicant was declared bankrupt, so none of those provisions was enlivened. 17 As to the second matter, the applicant has relied upon two affidavits of 10 April and 20 April 2012, together with two further documents which he sought to tender at the hearing and which were marked respectively MFI A and MFI B. I have considered all those documents carefully. 18 It is apparent that the applicant considers himself substantially disadvantaged in the present proceeding by reason of not being legally represented. He made submissions to that effect. That has meant that I have considered the material he has adduced carefully. Upon considering his affidavits, his complaint is that he is being legally "persecuted" over a lengthy period of time commencing in 1996 when the respondent (he says on behalf of the Executive Council of Australian Jewry) made a complaint concerning him to the Human Rights and Equal Opportunity Commission. The affidavits range far and wide, referring to alleged similar conduct in the United States of America. They refer to the processes of the Human Rights and Equal Opportunity Commission. They purport to make criticisms of the processes of that Commission. It is asserted, probably correctly, that the respondent does not wish to reconcile or tolerate the point of view of the applicant as to the historical accuracy of the Holocaust (as it is referred to in the material). The material also makes more specific complaints about the process by which the applicant came to be unsuccessful in his appeal from the decision and orders of Lander J, and about the order for the costs of that appeal and the process of their taxation. The results of the appeal, including the orders then made, cannot be set aside on this application. It may be that the applicant might nevertheless show that pursuing recovery of the costs ordered on 13 May 2009 is an abuse of the process of the Court. The material refers extensively to news items attributed in part to the respondent and in part to others, both in Australia and overseas. It attributes political motivation to a number of persons who are not respondents to this application. 19 There is nothing to indicate that, in relation to the order for costs of 13 May 2009, there was any indication on the part of the respondent at any time that costs order would not be enforced, or that somehow the resolution of the creditor's petition referred to above would somehow absorb any other liability for costs which the applicant had to the respondent. The affidavits contain a mix of materials seeking to dispute the earlier decisions, to dispute the existence of the Holocaust, to say there is no preparedness of others (including the respondent) to debate with the applicant as to the existence of the Holocaust, and a mindset on the part of the respondent that the Holocaust occurred (which the applicant says is an incorrect mindset). None of that material, even assuming it to be admissible on this application (and most of it is not in admissible form but is simply a representative or a selection of articles touching on those matters or a series of assertions without factual foundation) indicates any improper conduct on the part of the respondent in seeking to recover the costs which he was previously awarded. Nor does it indicate any improper extraneous purpose on his part leading to the securing of that order for costs (which was obtained in proceedings instituted by the applicant against him) or on his part in enforcing that order for costs. This application is not a vehicle by which the applicant can go behind the order determining that he was in contempt of Court, nor behind the order determining that the orders then made, including the costs orders, were proper ones. If the applicant misunderstood the significance of him resolving the previous creditor's petition by the amount of the payment of the costs claimed on the appeal, that was not a misunderstanding generated by conduct on behalf of the respondent. He does not demonstrate that the conduct of the respondent in seeking to recover those costs is vexatious or an abuse of the process of the Court simply because the respondent is a member of Australia's Jewish community or that members of the Australian Jewish community are desirous of establishing that the applicant's position that the Holocaust did not occur is an incorrect one. 20 I have separately considered the two documents marked for identification. One is headed "Obama unveils new sanctions on Syria, Iran". It does not contain any material directly admissible against the respondent. That is so whether regard is had to its content or its form. The second is headed: "Holocaust deny Fredrick Toben: Free speech martyr or racist monster?" It is a media interview between two university professors and a media interviewer. It also contains no material which is admissible in substance or in form against the respondent on this application. I decline to receive that material. 21 Accordingly, in my view there is no material upon which the applicant has made out his claim that the pursuing of the recovery of the costs ordered on 13 May 2009, is other than an appropriate and available course of action for the respondent to adopt. If the consequence be that the applicant is confronted again with a significant liability for costs, and possibly the potential for further bankruptcy proceedings, that is by operation of law. There is no material before me to demonstrate that the proper processes of the law, that is, the recovery of the costs order, are being abused in any way asserted by the applicant. I put on record that, amongst his assertions were assertions of "laches, waiver, estoppel and res judicata". As the applicant said, he is not represented and upon questioning, the essence of his claim was that the purpose of the enforcement of the costs order is an improper one and so an abuse of the process of the Court. In my view, that assertion is not made out. 22 The orders sought in paragraphs 1 and 2 of the interlocutory application are refused. 23 As to paragraph 3, I will make the orders indicated in [4] above. 24 After these reasons for decision were prepared in draft, it came to my attention that the applicant had filed on 30 April 2012 a document entitled "Applicant's Further Written Submissions" of 31 pages. I have not read it except to look at its title and its length. It was not filed by leave of the Court, and there was no suggestion at the hearing that the applicant should be entitled to address further submissions in writing. It was not accompanied by any request for the matter to be relisted for hearing or for leave to present further submissions. It would be unfair to the respondent in those circumstances to have regard to it. I have not done so. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.