Toben v Nationwide News Pty Ltd

Court of Appeal (NSW)|2016-07-15|Before: Meagher JA, Ward JA, Payne JA

Background

Dr Toben was born in Germany in June 1944. He emigrated with his family to Australia in 1954. In the summary of argument filed for Dr Toben in these proceedings, Dr Toben is described as someone with "an interest in the holocaust"; a retired English teacher and life member of the Australian College of Educators (MACE); and a "holocaust scholar" (see [8]-[9]). In his affidavit sworn 29 October 2014 in the defamation proceedings (at [7]), Dr Toben deposes that in 1971 he returned to Germany to attend universities at Heidelberg, Stuttgart and Tubingen and that he graduated in 1977 with a Doctorate of Philosophy. His fields of interest in philosophy are described as the "falsification of scientific theories and the principles of fallabilisim" ([7]).
In October 2000, the Human Rights and Equal Opportunity Commission (HREOC) found that Dr Toben had engaged in unlawful conduct in contravention of s 18C of the Racial Discrimination Act 1975 (Cth) in relation to the publication of material that was racially vilificatory of Jewish people on the website of the Adelaide Institute, an institute that Dr Toben started in 1994 and that he managed from its inception until 2009 (see his affidavit at [11]; [14]). Dr Toben was ordered to remove the contents of the Adelaide Institute website from the internet and not to re-publish the content of that website in public elsewhere. He was also ordered to make a statement of apology in terms set out in the Inquiry Commissioner's ruling.
An application was then made in the Federal Court of Australia to enforce the determinations made by HREOC. Branson J heard that application (Jones v Toben [2002] FCA 1150) and noted that, since the date of the determination of HREOC, considerable material of the same general character as that which was the subject of the complaint to HREOC had been published by Dr Toben both on the world wide web and in the form of newsletters ([112]). Branson J held that Dr Toben had acted unlawfully and made orders requiring the removal from the Adelaide Institute website and all other world wide web sites of the vilificatory material and any other material with substantially similar content or which conveyed any of a number of the imputations found to have been conveyed by that material. Her Honour also made an order restraining Dr Toben from publishing or republishing to the public, by himself or by any agent or employee, on the world wide web or otherwise: (i) the document headed "About the Adelaide Institute"; (ii) any other material with substantially similar content; and (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 (WB 3/461).

Primary judgment

The application by the News respondents for a permanent stay or summary dismissal was heard by McCallum J in February 2015. For that hearing, Dr Toben had filed two sets of written submissions, one prepared by his counsel and one of which he was personally the author. At [34] of her reasons, the primary judge commented that the two sets of written submissions revealed a different understanding of the case as between Dr Toben and his counsel.
Her Honour noted that his counsel's submissions put a narrow case, namely that: "the Holocaust" means "the systematic murder of Jews and others by the Nazis during the war"; that the term "Holocaust denier" means a person who denies that the Holocaust occurred; and that, as Dr Toben does not deny that an event described in those terms occurred, he is not a Holocaust denier and it is defamatory to say that he is. By contrast, the primary judge described the written submissions authored by Dr Toben (and his evidence on the application before her) as being a more subtle one ([35]), namely that "the Holocaust" means different things to different people. Her Honour noted that Dr Toben challenged the proposition that he was "not seeking to restore his reputation as a person who does not deny the Holocaust as that expression is commonly understood" (my emphasis) by challenging what was meant by the term "commonly understood".
At [38], the primary judge noted that in his submissions Dr Toben explained that his approach would be as follows: For the purpose of the proceedings, and in order to avoid "Holocaust debating" by the parties, the plaintiff will principally be seeking to satisfy the court that he legitimately conducts reviews of changes of the Holocaust narratives. The plaintiff intends to illustrate extents to which Holocaust narratives have varied from original claims made during and at the end of WW2 to date as a product of historical revisionism/research. and thus not to offer his own view as to what happened during the war but only to review the changing narratives given by others.
Her Honour pointed to uncertainty as to the meaning of the term "the Holocaust", as used in the imputations that Dr Toben alleges are conveyed by the matter complained of, as demonstrating that Dr Toben's action rested "on a shifting premise" ([43]): namely, that 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 but 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 ([44]-[45]). In short, her Honour considered (at [46]) that, for different purposes, Dr Toben's case both accepted and rejected "what he himself has identified as central tenets of the "commonly accepted" truth as to the Holocaust".
At the hearing before the primary judge the evidence included various newsletters written by or attributed to Dr Toben on the Adelaide Institute website over the period from December 2004 to July 2014, as well as material published by Dr Toben on his personal website and extracts from other publications by him. Dr Toben filed two affidavits on the application and was cross-examined by Senior Counsel for the respondents on those affidavits. Accepting that this was unusual on such an application, her Honour permitted such cross-examination as a matter of fairness to all the parties but also to inform the proper exercise of the court's power (and duty) to suppress any abuse of its process ([80]).
The primary judge set out (at [9] of her reasons) the abuse of process argument as set out in the outline of submissions filed for the News respondents as follows: 4. First, the pursuit of the proceedings by the respondent plaintiff is an abuse of process. The plaintiff is not pursing the proceedings in order to demonstrate the falsity of what has been published about him; he is not seeking to restore his reputation as a person who does not deny the holocaust as that expression is commonly understood (the Holocaust) and who is not an anti-Semite in the sense of a person who vilifies Jews; rather, he is pursuing the proceedings for altogether different reasons: 4.1. to demonstrate that the Holocaust, as that historical event is commonly accepted and understood (the Holocaust), did not take place; specifically, that it did not involve a systematic attempt by Hitler to exterminate European Jews; did not result in the deaths of some six million Jews; and did not involve the use of homicidal gas chambers; 4.2. to commit his idiosyncratic opinions about the Holocaust, and the "evidence" on which he relies, to the "written record" of the Court; and 4.3. to use the privileges and protections provided to litigants in this Honourable Court to express and expound his views concerning the Holocaust and about Jews in a way which would circumvent and undermine the orders made by Branson J on 17 September 2002 in Jones v Toben [2002] FCA 1150 and decisions of the other judges of the Federal Court of Australia.
Her Honour considered that on the strength of Dr Toben's own writings it was difficult to conclude otherwise than that Dr Toben had a clear agenda to create a public forum for disputation on the history of the Holocaust and for the expression of anti-Semitic views ([77]).
At [86], the primary judge recorded her 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.
At [95]-[97], her Honour went on to say: … 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. 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. 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.
The primary judge was persuaded that Dr Toben did not have "the least interest" in vindicating his reputation against the imputations he had specified ([103]), pointing to Dr Toben's own website and writings in that regard. Pausing there, the News respondents identify this as a critical finding reached by her Honour and one which, if not overturned, they contend is fatal to this application (see T 25.31-37).
Her Honour, having reached the conclusion (at [105]) to which I have already referred at [3] above that the proceedings were an abuse of process and should be stayed, did not find it necessary to determine the alternative basis on which the News respondents sought the stay (the proportionality issue) but in obiter indicated that had it been necessary to do so she would not have stayed the proceedings on that separate basis ([106]).

Present proceedings

Dr Toben seeks leave to appeal from the primary judge's decision on the grounds set out in his draft notice of appeal (though with an amendment to ground 10 identified in the course of argument to delete a complaint that her Honour erred in finding that he intended to use the proceedings as a forum for his views - which he now accepts is what he wants to do), those being: 1. Her Honour erred in staying the Appellant's proceedings on the ground they were an abuse of process. 2. Her Honour erred in ruling that in bringing the proceedings in the Common Law Division the Appellant had an improper purpose. 3. Her Honour erred in failing to consider the necessity of establishing a predominant improper purpose rather than an improper purpose. 4. Her Honour erred in failing to ensure that the principles of Browne v Dunn were applied. 5. Her Honour erred in failing to give reasons in support of her adverse findings against the Applicant. 6. Her Honour erred by failing to identify the specific matters which she found to be an improper motive. 7. Her Honour denied the Appellant procedural fairness. 8. Her Honour erred in allowing the Respondents to conduct a fishing expedition or mini-trial rather than an interlocutory application. 9. Her Honour erred in not considering or ruling upon all imputations. 10. Her Honour erred … in finding that using the proceedings as a forum for views was an improper purpose. 11. Her Honour erred in finding the Appellant did not bring the common law proceedings to recover damages for vindication of reputation. 12. Her Honour erred in finding the Appellant was a holocaust denier rather than a questioner or examiner of holocaust narratives. 13. Her Honour erred in finding the Appellant was an anti-semite. 14. Her Honour erred in finding that the Appellant's proceedings in the Common Law Division were "a cynical misuse of the process of the Court which must be stopped". 15. Her Honour erred in not applying the principles of abuse of process as found by the High Court in Williams v Spautz (1992 174 CLR 509). 16. Her Honour erred in failing to identify the parts of the Appellant's previous statements and court cases which she found established the Appellant was a holocaust denier, a liar and hypocrite. 17. Her Honour erred in effectively finding the imputations true.
Leave is necessary pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW) as the judgment, though having a dispositive effect on the outcome of the proceedings, is interlocutory in nature.
The News respondents maintain that Dr Toben has misapprehended the issue in the court below as to the reasons that the proceedings were stayed and argue that his complaint about a lack of procedural fairness is misconceived. They have filed a notice of contention in which they contend that the primary judge's decision should be affirmed on the following ground: Pursuant to section 67 of the Civil Procedure Act 2005 (NSW), McCallum J ought to have found, further and in the alternative, that the proceedings should be permanently stayed on the basis that the cost and expense of the proceedings will be disproportionate to any interest that the plaintiff has in vindicating his reputation, or seeking consolation or reparation for any damage to his reputation.
The fourth respondent, Senator Milne, supports the News respondents' defence of Dr Toben's application but has filed a submitting appearance save as to costs.
The application for leave to appeal was heard concurrently with the appeal itself, should such leave be granted. For the reasons that follow, I am of the view that leave to appeal should be granted but that the appeal should be dismissed with costs.

Leave

Dr Toben emphasises that, as recorded by the primary judge in her reasons at [24], the News respondents did not deny the existence of a prima facie cause of action for defamation nor did they suggest that the claim was amenable to summary dismissal. Somewhat emotively, he submits that the result of the primary judge's stay of the proceedings is that he has become a "non-person" about whom any allegations may now be made with impunity by the media "since the Courts have denied him access to seek redress".
Leaving aside the hyperbole of the "non-person" submission, I consider that this is an appropriate case in which to grant leave to appeal since it raises an important issue of principle as to what constitutes an abuse of process such as to warrant a permanent stay of proceedings. As I explain below, the facts of this case are not on all fours with those in the various cases in which this issue has previously been considered. For that reason, I would grant leave to appeal.

Structure of these reasons

As set out earlier, Dr Toben's notice of appeal raises a number of grounds. No attempt was made by Dr Toben (either in the written summary of argument or in oral submissions) individually to address those grounds. Rather, Dr Toben's summary of argument focussed on his complaints as to: a lack of procedural fairness ([28]-[36] of his summary of argument); lack of reasons for particular findings ([37]-[38]); the primary judge's "finding" that the Holocaust as "commonly accepted" was an obvious truth ([39]-[49]); the conclusion reached by the primary judge as to improper purpose and hence as to abuse of process ([50]-[55A]); and the primary judge's refusal to consider the new imputations which he had sought leave to add to the pleading ([56]-[57]). I will address the grounds of appeal under those headings, before considering the proportionality issue raised by the News respondents' notice of contention.
At the outset, I note that it seemed to be accepted by both sides that the purposes for which a plaintiff properly brings a defamation action are generally said to be: first, the vindication of his or her reputation; second, to receive compensation for the damaged reputation; and, third, to provide consolation for hurt and distress caused by the publication (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 150; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31; Packer v Meagher [1984] 3 NSWLR 486 at 492). Dr Toben thus accepts that what the primary judge said at [44] of her reasons as to the purpose of defamation proceedings is correct. However, Dr Toben maintains that, in addition, a plaintiff in defamation proceedings has an entitlement to express his or her own views about the subject matter complained of.

Denial of procedural fairness - grounds 4, 7 and 8

Dr Toben's complaint as to a denial of procedural fairness is, broadly, that it was not put squarely to him in cross-examination that his true purpose was, as her Honour ultimately found, not to vindicate his reputation but instead to express his views as to the Holocaust. Dr Toben complains that he did not have an opportunity to respond to that proposition. He says that the truth or falsity of the pleaded imputations was not put to him in cross-examination; nor were the "findings" which he says her Honour made.
Dr Toben refers in particular in this regard to statements made by the primary judge at [51], [77], [95], [96], [97] and [105], which he says were not put to him. The "findings" (listed at [32] of the summary of argument) to which Dr Toben refers are that he brought his claim: 1. to create a public forum for the disputation of the history of the Holocaust and the expression of anti-Semitic views ([77]); 2. to enable him to record views he plainly espouses on a pretended lawful basis ([95], [96]); 3. 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 ([97]); and 4. to manipulate the process of the court to create a forum in which to assert the very views of the attribution with which he claims to have been defamed ([105]).
Dr Toben argues that the failure to put those "findings" to him amounts to a failure on the part of the News respondents to adhere to the rule in Browne v Dunn (1894) 6 R 67 and that this led the primary judge erroneously to conclude (as he maintains on her reasoning she must have done) that he was a hypocrite and untruthful when asserting that the Holocaust denier imputation was false.
Pausing there, it is clear from a reading of her Honour's reasons that the passage at [51] is simply a recitation of the News respondents' central contention on their application, not a finding at all. However, nothing turns on this since her Honour did subsequently (at [77]) express the opinion that, on the strength of Dr Toben's own writings, it was difficult to conclude otherwise than that Dr Toben had a "clear agenda" to create a public forum for the disputation of the history of the Holocaust and the expression of anti-Semitic views.
Complaint is also made that the primary judge did not identify the statements or the parts of the statements in Dr Toben's earlier writings which led to her belief that Dr Toben was a Holocaust denier. Dr Toben submits that had the statements on which the primary judge or the News respondents' counsel relied been put to him then he could have explained that "error".
Dr Toben points to evidence he gave before the primary judge to the effect that there were "different narratives" about the Holocaust and that it was a contentious topic:

at T 42.10, "We all know that it happened that the narrative is fluid. The narrative changes. This is where we focus, place our focus on";
at T 57.25-35, that there was no dispute that Jews were mistreated in concentration camps;
at T 70.10; 70.15, that he did not deny the persecution of European Jewry nor that Germany had an extermination policy against them; and
at T 73.30, that "there's no dispute that the holocaust happened but we are questioning the extent, the nature of it. That's what we are doing"; and asserts that there was no cross-examination of him challenging those statements. He also points to evidence he gave to the effect that the Holocaust "was a systematic focus on Jewish individuals, not only Jews, others as well", that it was "a catastrophe" (T 81.20); and that he was very critical of Jews but that this was different to being an anti-Semite (T 83.5); about which again he says he was not challenged.

Dr Toben further complains that her Honour permitted him to be cross-examined at all on the hearing of the News respondents' application (ground 8).
Turning first to the last of those complaints (ground 8), the decision to permit cross-examination was one clearly within her Honour's discretion. The News respondents say that the utility of the cross-examination, and the reason that leave was sought (and granted) to cross-examine Dr Toben (referring to what is recorded at T 28.7-26) was to challenge Dr Toben's evidence as to his purpose in bringing the proceedings and to demonstrate that he could not be believed in that regard.
Her Honour gave cogent reasons for permitting the cross-examination. No error of principle or House v R error has been demonstrated by Dr Toben in relation to that decision (House v The King (1936) 55 CLR 499; [1936] HCA 40). It cannot be said that the primary judge in some way inverted the onus of proof. Rather, Dr Toben chose to adduce evidence as to his purpose in commencing and continuing the proceedings; and the News respondents were permitted to test that asserted purpose by cross-examination. There is no merit to ground 8 of the proposed grounds of appeal.
As to the remaining grounds under this heading, it is well recognised that the rule in Browne v Dunn is a rule of practice (see Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16), which in essence is a rule of fairness. Indeed in Browne v Dunn, Lord Herschell LC noted (at 71) that: ... Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted. His Lordship made clear that he was not intending to lay down any "hard-and-fast" rule in this regard.
In the present case, Dr Toben was well on notice, prior to the hearing of the application before the primary judge, of what the News respondents contended was his real purpose in bringing the proceedings. They had made this clear both in a letter dated 27 May 2014 to Dr Toben's legal representatives and in their written submissions served on 11 November 2014 in advance of the hearing of their application.
It is evident that Dr Toben appreciated that the News respondents would be asking her Honour to determine the issue as to his purpose in bringing the proceedings, since he swore an affidavit on 29 October 2014 in which he responded directly to the contention made by the News respondents as to his real purpose. In that affidavit, Dr Toben deposed that he was bringing the claim because the News respondents had damaged his reputation and caused him distress, upset and injury to feelings; and deposed that he sought vindication of himself and his reputation ([31]). He there admitted the Holocaust and denied casting doubt on its occurrence (a proposition that is untenable having regard to the publications in evidence, even if those publications were no more than "dialectic" or daring to "touch taboo topics" - as was the tenor of the evidence to which the primary judge referred in her reasons). He also denied using or attempting to use the court cases in which he was involved as a vehicle to expound his views ([17]).

Adequacy of reasons - grounds 5, 6 and 16

Complaint is made that the primary judge based her findings of improper purpose on Dr Toben's "own writings and his evidence in these proceedings" ([96]), and on various court and tribunal judgments concerning him (there referring to statements extracted at [36], [38], [40], [48], [52], [57], [60], [61], [66], [83], [84], [86], [89], [90], [91], [92], [93], [100], [101] and [104] of the primary judgment), but that her Honour did so without giving reasons. The complaint seems to be that the primary judge did not identify those particular parts of Dr Toben's writings or of his oral evidence on which she relied for the findings of improper purpose.
Dr Toben argues that, insofar as her Honour found that the "Holocaust denier" imputation was capable of being defamatory "only on the premise that it attributes Dr Toben with a discreditable denial of an obvious and important truth" ([44]), her Honour must be taken to have found that the Holocaust is an important truth and that his denial of such an obvious truth is discreditable.
Dr Toben submits that it was incumbent on her Honour to give reasons for her findings that he denied an obvious truth and that he intended to use the proceedings as a forum for its disproof; and that it was necessary for her Honour "to pinpoint" the passages of his writings and evidence on which she relied and give reasons as to how she came to the conclusions which led to the finding of improper or collateral purpose and abuse of process (at [95]-[97]).
There is no merit to the complaint as to failure to give, or adequacy of, reasons. Her Honour explained in some detail the "epistemological loop" identified by Senior Counsel for the News respondents in Dr Toben's argument on the application before her and the shifting premise on which her Honour considered Dr Toben's argument was based (see [28]-[36]). At [31]-[32], for example, her Honour said: 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. 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.
Her Honour referred to a number of Dr Toben's publications (including his book 40 Days in Teheran and newsletters published by the Adelaide Institute), as well as to the cross-examination of Dr Toben (for example see from [98]ff), which clearly formed the basis for the conclusion she reached at [103]. It cannot have been necessary for her Honour to provide pinpoint references to Dr Toben's writings. Dr Toben did not suggest that he had not published the materials to which her Honour referred. They provided ample support for the conclusion that he had in the past seemingly had no hesitation in calling aspects of the common conception of the Holocaust "lies" and had adopted in his discourse the language of truth and lies (see [86]).
No error has been identified as to the adequacy of her Honour's reasons in this regard. These grounds are not made good.

Findings that imputations were true - grounds 12, 13 and 17

The above grounds are linked to Dr Toben's complaint as to what he contends were her Honour's "findings" that the imputations were true.
Dr Toben submits that, although her Honour said (at [25]; and at T 99) that she made no finding or assumption as to the truth or otherwise of any posited historical fact or belief, and (at [102]) that it was no part of her judgment to determine the correctness of any proposition questioned by Dr Toben, nevertheless her Honour did find in effect that the "Holocaust denier" imputation was true (referring to [43], [44], [45], [86], [96] and [97]). He says that otherwise there can be no explanation for the finding (at [97]) that his purpose in bringing the proceedings was 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. The News respondents submit, to the contrary, that in those parts of the primary judge's reasons to which Dr Toben points, the primary judge does no more than explain why it is that she could not accept as truthful Dr Toben's evidence about his purpose in bringing the proceedings and why she was persuaded that his predominant purpose was as they had contended.
In particular, Dr Toben complains that (at [45]) the primary judge found that the Holocaust as "commonly accepted" was an obvious truth. Dr Toben maintains that her Honour meant by this that "the systematic murder of six million Jews by the Nazis" was an obvious truth. He contends that this was her Honour's own opinion or belief (i.e., as to the meaning of the Holocaust), and a matter of which her Honour could not take judicial notice; and that her Honour failed to distinguish the difference between the meaning of the Holocaust "as it is commonly understood" and historical narratives of the Holocaust when concluding erroneously that he had shifted his premise as to the meaning of the Holocaust "as commonly accepted".
Dr Toben maintains that the primary judge erroneously formed the opinion that he was "a Holocaust denier" because he denied that six million Jews were murdered (whereas he says, in effect, that he is not a Holocaust denier because he denies only the extent of the Holocaust). He thus argues that the primary judge should have distinguished between a Holocaust denier who denies there ever was a Holocaust and a "Holocaust scholar" who examines history relating to the Holocaust.
Dr Toben submits that the primary judge's error (in finding that he was a denier and not an inquirer or questioner) formed the basis for her ruling that he wanted to "create a public forum for the disputation of the history of the Holocaust" and led to the mistaken finding that this was an improper purpose amounting to an abuse of process.
Dr Toben submits that many of his previous writings and statements which were quoted by her Honour were not inconsistent with his evidence as to the Holocaust and its extent (pointing to the reference in her Honour's reasons at [57] to the finding by HREOC that he had "asserted there was significant errors which now established significantly fewer than six million Jewish people perished during this period of time... possibly he asserted, as few as 1.8 million"; and at [40] to an interview in which he said that the "six million" number was "mythical/religious"). He also points to evidence he gave at the hearing below (at T 57.25-35) to the effect that, because he did not dispute the basic fact that Jews were mistreated in Nazi concentration camps, he was not a Holocaust denier.
Broadly, Dr Toben asserts that the Jewish narratives or meaning of Holocaust (Shoah) divide the Holocaust into three components: that there was systematic murder of Jews by the Nazis; that the number of Jews murdered was six million; and that they were murdered by the use of homicidal gas. He argues that her Honour accepted the News' respondents' definition of Holocaust in this regard and that this was not based on evidence and decided an issue for trial outside the scope of interlocutory proceedings. Dr Toben's definition, he says, has only one element: namely that the Nazis planned and carried out systematic murder of Jews (T 10.5). He asserts that the figure of six million is overstated and that the use of homicidal gas has not been established (T 10.26, 70.15, 70.30, 73.30; 81.15). Thus he argues that the statements relied upon by the News respondents refer to the wider definition of Holocaust, which he does not accept. In other words, he says that saying "there never was a Holocaust" means there never was a Holocaust which included the massacre of six million Jews by homicidal gas.
Dr Toben submits that her Honour was not entitled to find that "her version" of the Holocaust was an obvious truth ([97]). He maintains that it is a contentious issue and that the primary judge's finding of abuse of process depended on her Honour's definition of Holocaust being unarguably correct.
The News respondents argue (and I agree) that the primary judge did not find that the Holocaust was an "obvious truth" and that the passage at [97] is nothing more than the expression of her Honour's rejection of Dr Toben's own contention on the application (namely that he wished, through the prosecution of the proceedings, to vindicate his reputation against the false claims set out in the imputations, for example, that he denies the Holocaust). They submit that the primary judge was at all times alive to Dr Toben's definition of the Holocaust (referring to the discussion at T 29.10-36, and T 100.42ff) and to his previous definitions of that term. They point to passages in the transcript in which the primary judge sought from Dr Toben's counsel his client's definition of "the Holocaust" (T 2.1 1; T 16.20-17.27; T 10.25-T 11.35; T.16.12; T.73.10 ff) and argue that Dr Toben failed or refused to provide any real clarification on this matter.
The News respondents contend that her Honour expressly did not adopt either definition of "the Holocaust" during the hearing or in her reasons for judgment ([102]). It is submitted that the exchanges at T 7.25 and T 11.14 demonstrate that Dr Toben did not want to clarify the words "the Holocaust" as used in his imputations, because to do so would raise the question as to whether the imputations drafted by reference to his purported definition of "the Holocaust" would be defamatory (T 7.25). The News respondents point to his statement in cross-examination, "I cannot be expected to start another defamation action because everything I want is in this action" (T 76:5). They point out that Dr Toben was clearly aware of the common understanding of the "the Holocaust" and argue that he made a tactical decision to attach the common understanding of "the Holocaust" to those words as they appeared in his imputations rather than to risk losing his imputations as not defamatory.
In my opinion, there was no finding by her Honour as to the "commonly understood" meaning of the Holocaust, nor did her Honour impermissibly apply her own knowledge or understanding of historical events. What her Honour clearly identified, when referring to the denial of an "obvious truth", was that a statement that someone is a Holocaust denier (as, for that matter, would be a statement that someone denies any other historical or world event) can only convey a defamatory imputation if it would be perceived as discreditable so to deny such an event. That must be correct.
Her Honour's reasoning is, in effect, that Dr Toben's complaint that the Holocaust denier imputation is defamatory depends on the commonly accepted or widely understood meaning of the Holocaust being that it involved the systematic or planned murder of six million Jews by means including the use of gas chambers, since to be defamatory the imputation must be capable of conveying the imputation that Dr Toben's denial of the Holocaust amounts to a discreditable denial of something widely accepted as historical fact (or widely accepted as an "obvious truth"); whereas Dr Toben argues the falsity of the imputation on the basis of a definition of the Holocaust that does not include the number of Jews murdered or the manner in which they were murdered. That illustrates the uncertainty to which her Honour pointed in the meaning of the Holocaust denier imputation Dr Toben alleged was conveyed by the matter complained of.
Her Honour did not make any finding as to the truth of the commonly understood or accepted meaning of the Holocaust or as to what is the commonly understood or accepted meaning of that term. Nor did her Honour make any finding as to Dr Toben being a "Holocaust denier". What her Honour pointed to was that, on his own admission, Dr Toben is a Holocaust denier if that term bears a broader meaning than that which he contends is the correct meaning of the term; and hence what he seeks to argue is that, in order for the truth of that imputation to be established (a matter put in issue by his claim for aggravated damages), the News respondents must prove that the Holocaust did involve those two "pillars" of the Holocaust which he disputes.
The complaints made in these grounds are not made good. It is clear from her Honour's reasons that no finding as to the truth or falsity of any of the imputations was made.

Finding as to abuse of process - grounds 1, 2, 3, 10, 11, 14 and 15

Both parties agree that the onus for demonstrating an abuse of process lay in the present case on the News respondents, they being the parties applying for relief on that basis (Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529). Moreover, it was accepted by the News respondents that the power to grant relief of the kind they sought was one that should be exercised with caution (Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77). That said, what was also made clear in Williams v Spautz (see 518) was that the court's powers to act effectively within its jurisdiction are necessary to enable it to suppress abuses of its process and defeat any attempted thwarting of its process.
Dr Toben's complaint as to the conclusion her Honour reached as to an abuse of process is to the effect that it is not an improper or collateral purpose for a plaintiff in defamation proceedings to seek, in the vindication of his or her reputation, to express his or her views about the subject of the defamatory imputations. Thus he argues that it cannot have been an abuse of process for him to have had this as a purpose in the defamation proceedings that he brought.
Moreover, he submits that even if such a purpose were to be "improper or collateral", it was necessary for her Honour to find that this was his "predominant improper purpose" and that her Honour did not do so. It is further submitted that even if her Honour did make a finding of predominant improper collateral purpose it was based on her belief that Dr Toben "was only pretending when he said the imputations were untrue and [that] he really believed there was no holocaust" (as to which Dr Toben complains that no reasons were given).
Dr Toben also complains that her Honour did not consider the other imputations (that Dr Toben had fabricated history about the Holocaust, had a racist anti-Jewish agenda, and had spent time in prison for anti-Semitic activities and holocaust denial), nor did her Honour consider the three proposed additional imputations (including that he has an explicitly racist anti-Jewish agenda that disentitles him from having social contact with any member of the Greens Party), in reaching the conclusion as to improper purpose. (Pausing there, if the pursuit of a proceeding amounts to an abuse of the court's process, then relief can be granted even if the party pursuing the proceeding has a prima facie case or is presumed to have one (see Williams v Spautz at 522). Hence the fact that Dr Toben may have had a prima facie case in relation to other imputations (which arguably might not have been affected by the improper purpose her Honour found had attended the commencement of the proceedings in which the Holocaust denier imputation is challenged) is not to the point if his predominant purpose in the proceedings is, as her Honour found, an improper purpose.
Dr Toben refers to what was said in Land Securities Ltd v Fladgate Fielder [2009] EWCA Civ 1402 at [108]: Thirdly, the relevance of ulterior purpose. The institution and pursuit of legal proceedings is an exercise of the fundamental right of access to the courts. As a general rule, the exercise of a legal right is not an unlawful abuse of that right merely by reason of a predominant improper or ulterior purpose: Bradford Corp v Pickles [1895] AC 587, [1895-9] All ER Rep 984.
Dr Toben argues that, no matter what views he intended to express about the imputations, they could not amount to an improper purpose, let alone a predominantly improper purpose, because they were reasonably related to the imputations and integral to his claim. In that regard, he quotes JG Fleming (The Law of Torts (9th ed, 1998, LBC Information Services) at 688) for the proposition that "in order to be improper the ulterior advantage must be one not reasonably related to the subject matter of the litigation and but for which the defendant would not have commenced proceedings".
He argues that there was no evidence, and nothing was referred to in her Honour's judgment, suggesting that he had no intention of prosecuting the proceedings to their conclusion and points out that there was no finding by the primary judge that he had any improper purpose by way of seeking monetary gain (as opposed to compensation for the damage to his reputation or hurt to his feelings).
The News respondents, however, point to the recognition in the authorities that the term "abuse of process" is not a term of art and does not have any set meaning (Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [1] and [9]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [78]; Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [28]; O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315); and that in Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, French J (as his Honour then was) said (at 279) that "[t]he possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed".
The News respondents argue that the critical findings as to abuse of process were those (at [95]-[97]) in which her Honour found that the purpose in bringing the proceedings was to enable Dr Toben to record views that he plainly espoused "on a pretended lawful basis" and to do so under the pretence of philosophical discussion. (The reference to a "pretended lawful basis" is clearly to the fact that, in view of the existing Federal Court orders, Dr Toben is not able lawfully to espouse views casting serious doubt on the Holocaust outside of the court proceedings.)
The News respondents refer to the continuing publication of material by Dr Toben (after the orders made by Branson J) in which anti-Semitic views were expressed and his continued denial that the Holocaust involved a policy of extermination of Jews through, among other means, homicidal gas chambers, as necessarily demonstrating a high degree of logical inconsistency in Dr Toben's claimed desire to vindicate his reputation. They argue that this inconsistency was a reason for the primary judge to conclude that Dr Toben was in fact predominantly interested in finding a privileged forum in which to ventilate his views about Jews and the Holocaust and hence that her Honour did not err in rejecting Dr Toben's explanation of the apparent inconsistency as cynical and disingenuous.
The News respondents point to Dr Toben's own writings as containing explicit statements to the effect that his purpose, when it comes to court proceedings, is to litigate the factual existence (or non-existence) of the Holocaust, so as to enable him to create a "written record" of his opinions and "evidence" that the Holocaust was a "lie" and did not take place. They maintain that the submissions in this Court (at [45]-[61]) illustrate that Dr Toben brought this proceeding not to vindicate his reputation but to disprove the Holocaust or to prove, using the privileged forum of the court, that his definition of the Holocaust is correct (referring to the exchange in the course of cross-examination at T 73:46-T74:2).

Determination

In Williams v Spautz (at [42]) the majority made clear that the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances. The primary judge's reasons demonstrate that her Honour approached the exercise of determining whether there was an abuse of process with that caution firmly in mind.
In PNJ v The Queen (2009) 193 A Crim R 54; [2009] HCA 6 the majority in the High Court (at [3]) said that: It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics: (a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party; or (c) the use of the court's procedures would bring the administration of justice into disrepute.
As noted above, the parties accept that the fundamental (legitimate) purpose of civil defamation proceedings (as recognised in Packer v Meagher and R v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303 at 306) is to vindicate and to protect the reputation of the person defamed, though Dr Toben goes further and maintains that it is part of the legitimate purpose of such proceedings that a plaintiff seeks to espouse his or her own views as to the subject matter of the complaint.
Dr Toben's argument, in substance, is that espousing his beliefs in relation to the subject matter of the imputations (such as his views or other "narratives" as to the meaning of the Holocaust) cannot be an improper purpose or an abuse of process because that does not relate to something "external" or extraneous to the proceedings; that he has not been shown to have no interest in pursuing the proceedings to a conclusion; that his motive in bringing the proceedings is irrelevant; and that it has not been demonstrated that he seeks a collateral advantage in the sense in which that has been considered in the authorities.
In that regard, it can readily be accepted that there is no basis for finding that Dr Toben does not wish to bring these defamation proceedings to a conclusion (nor did her Honour suggest that this was the case). It can similarly be accepted that there was no suggestion that Dr Toben had pursued the proceedings improperly to put financial or other pressure on the defendants to the proceedings or for some other improper or collateral monetary advantage.
As to Dr Toben's motive in bringing the proceedings, as he correctly submits, the authorities make clear that there is a distinction between motive and purpose and that the former is irrelevant in determining whether there is an abuse of process in the commencement or continuation of proceedings.
It is, however, relevant to note that in the past Dr Toben has adopted the stance that it is irrelevant whether court proceedings result in a successful or unsuccessful conclusion (see the extract from his 2004 writings at [26] above). That supports the conclusion that Dr Toben's predominant purpose in these proceedings is not to vindicate his reputation or to achieve compensation/redress (though he would prefer to do so); in other words his focus is not on the end result or outcome of the proceedings but, rather, it is the litigious process itself (by which a written record of his views might be created for posterity).
The finding by the primary judge that Dr Toben did not have the "least interest" in vindicating his reputation was clearly available on the evidence before her Honour. Though Dr Toben maintained otherwise, the primary judge was able to assess that assertion against his own previous publications and his oral evidence. There is no basis for overturning that finding (nor was that sought).
Dr Toben's argument that he has been defamed by reference to the imputation that he is a "Holocaust denier" demonstrates why it is that her Honour was in my opinion correct to conclude that he has not the least interest in vindicating his reputation.
He does not deny that he is a "Holocaust denier", provided the meaning of the term "the Holocaust" is understood as including the two "pillars" that he disputes. In other words, he accepts that he denies (or seriously questions) that the Holocaust involved the murder of six million Jews by the use of homicidal gas chambers. He has called himself a Holocaust denier. He cannot possibly find it offensive to be called something that he has seemingly been happy to label himself as. Rather, what he denies (or now wishes merely to call into question) is that particular aspects of the historical record of or writings about the Holocaust in fact occurred (whether or not those aspects are widely understood or commonly understood is probably a moot point in this context). He wishes to espouse, and have a public record of, his view that "the Holocaust" has a particular meaning. The imputation that he is a Holocaust denier can only be false, from Dr Toben's perspective, if one accepts his view of what the Holocaust entailed; i.e., if one accepts only one of the so-called three pillars on which he understands at least the Jewish "narrative" of the Holocaust rests.
Similarly, having reviewed the material which was before the primary judge, there was ample support for the conclusion (at [53]) that many readers would see Dr Toben's writings as openly anti-Semitic.
A person who has repeatedly referred to himself (in laudatory terms) as a "Holocaust denier" and who has described the Jewish people in the terms that Dr Toben has (see, for example, the extracts at [25] above) cannot conceivably have been offended by such a description of himself published by others; nor could his reputation be sullied beyond that which he has himself achieved by those very writings. Any such suggestion could only, in the primary judge's words, be risible.
Thus the argument that Dr Toben wishes to debate in the court proceedings is whether the expression "the Holocaust" bears the more limited meaning for which he contends (in which case he maintains he is not a Holocaust denier and the imputation to that effect was defamatory). If the imputation bears the broader meaning of the Holocaust (as encompassing the extent and nature of the Nazis' systematic extermination of Jews) then Dr Toben cannot suggest he has been defamed because he accepts that in that sense he is a "Holocaust denier".
Dr Toben maintains that he is entitled to put the News respondents to proof that the Holocaust involved the murder of six million Jews by homicidal gas chambers. However, his obvious purpose in so doing is not to achieve vindication of his reputation from the sting of being called a Holocaust denier; it is, rather, to vindicate his belief in the true meaning of the Holocaust. That is the very thing that the existing Federal Court orders would preclude him from doing outside the court process and it is the collateral advantage of so doing that in my opinion sustains the conclusion that the proceedings are an abuse of process.
The present case does not find a ready analogy in the cases where abuse of process has been found in the past.
In Williams v Spautz, for example, the abuse of process lay in the fact that Dr Spautz had brought criminal defamation proceedings against members of the Council of the University of Newcastle in order to force the Council to reinstate him as a lecturer. The High Court (the plurality comprised of Mason CJ, Dawson, Toohey and McHugh JJ; Brennan J writing separately) held that this was an abuse of process on the basis that proceedings may not be used for the purpose of obtaining some collateral advantage and not for the purpose for which such proceedings are properly designed.
The plurality (at 522) shared the doubt expressed by Bridge LJ in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 503 as to whether a litigant "with a genuine cause of action, which he would wish to pursue in any event" could be debarred from pursuing that cause of action because the litigant also had "an ulterior purpose and view as a desired by-product of the litigation". At 522, their Honours referred as an example of an abuse of process to cases where a plaintiff could establish a prima facie case but had no intention of prosecuting the proceedings to a conclusion because he or she wished to use them only as a means of extorting a pecuniary benefit from the defendant. (As already noted, no such conclusion could be drawn in the present case.)
Considering the boundaries of abuse of process, the plurality said (at 526-527): The observations of the Privy Council in King v. Henderson and those of Isaacs J. in Dowling, to which we referred earlier, represent an attempt to achieve a formulation which keeps the concept of abuse of process within reasonable bounds. To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event. Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour. It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers. So, in Dowling, Isaacs J. pointed out that "if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process". However, because the Society wished to use the process for the very purpose for which it was designed, there was no abuse of process. (my emphasis; footnotes omitted)
Brennan J, in a separate judgment, said (at 532; 535): The purposes which legal proceedings are designed to serve are the protection or vindication of particular legal rights or immunities, the maintenance or affection of particular legal relationships, and the imposition or enforcement of particular legal penalties, liabilities and obligations. The means by which these purposes are achieved in a proceeding consist in the verdict which might be returned or the order which might be made in the proceeding, in the consequences that flow naturally from a verdict that might be returned or from an order that might be made (for example, the vindication of a plaintiff's reputation flowing from a verdict in a civil action for defamation) and in compromise of the claims made in the proceeding. The achievement of any of the purposes mentioned by any of the means mentioned is within the scope of the remedy for which a proceeding is designed. But a proceeding may be intended to produce and may be capable of producing results that are not within the scope of the remedy. (my emphasis) … There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include - at least to any substantial extent - the obtaining of relief within the scope of the remedy.
Brennan J referred (as members of the Board of the Privy Council have done more recently in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17 - see for example, Lord Wilson at [63] and Lord Sumption at [152] - when considering the scope of the torts of abuse of process and malicious prosecution) to the example given by Isaacs J in Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46 (at 91) of the stalking horse, namely that: the term 'abuse of process' connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose.
Brennan J went on to say (at 535-536): Putting to one side, then, the cases where the plaintiff intends to obtain relief within the scope of the remedy, the problematic cases arise when the plaintiff's purpose is to obtain some benefit, to impose some obligation or to affect some relationship otherwise than by verdict, by order or by compromise of the particular claims made in the proceeding. These are cases where the plaintiff's objective lies outside the relief which, if the proceeding were prosecuted to completion, might be obtained by verdict or by order. (my emphasis)
Brennan J formulated the relevant test by reference to whether there is a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding. His Honour went on to say (at 537): If there be mixed purposes - some legitimate, some collateral - I would restate his Lordship's test that "but for his ulterior purpose, [the plaintiff] would not have commenced proceedings at all". So expressed, the test casts on the other party an onus of proving what the plaintiff would not have done if he had not formed the intention of obtaining a collateral advantage. That onus may be impossible to discharge. If that onus were discharged, the other party would establish that the plaintiff had not commenced or maintained the proceeding for any substantial legitimate purpose. The gravamen of the test, I apprehend, is that the plaintiff did not commence or maintain the proceeding for any substantial legitimate purpose. I would state the test in that way. Substantiality is a matter of degree, ascertained by reference to the intention attributed to the plaintiff in all the circumstances of the case. At the end of the day, the court must determine, by reference to the intention attributed to the plaintiff, not merely whether the collateral purpose of the proceeding outweighs any legitimate purpose but whether the plaintiff entertained any substantial intention that the proceeding should achieve a legitimate purpose. (my emphasis)
In Crawford Adjusters, the issue whether the torts of malicious prosecution and abuse of process should be extended to civil proceedings arose in the context of a claim for deceit and conspiracy that had been brought by an insurance company against a chartered surveyor and two building companies. The action was discontinued shortly before trial. On the surveyor's then counter-claim claim for abuse of process and malicious prosecution the primary judge made findings as to the motives of the insurance company's officer (imputed to the insurance company) in bringing the fraud/conspiracy claims; namely that the dominant factor in making the allegations of fraud was found to have been the insurance company officer's strong dislike and resentment of the surveyor, his wish to gain revenge on him and his determination to destroy the surveyor professionally. The proceedings were found not to have been an abuse of process. As to the tort of malicious prosecution, the elements were found to have been made out but on the basis of House of Lords authority the primary judge held that he was precluded from holding that the insurance company was liable on that claim as the tort did not extend to civil proceedings. The majority of the Board of the Privy Council held that the law of malicious prosecution should apply in civil proceedings. None of the members of the Board considered that the tort of abuse of process should be so extended.
In that context, Lord Wilson explained that if the intention of a claimant is that the result of victory in the action will be the defendant's downfall then the claimant's purpose is not improper "for it is nothing other than to achieve victory in the action, with all such consequences as may flow from it", contrasting the position where the intention is to secure the defendant's downfall or some other disadvantage to the defendant (or advantage to the claimant) by use of the proceedings other than for the purpose for which they are designed (at [63]). The distinction there clearly drawn is between motive and purpose.
Lord Sumption (dissenting in the result on the issue relating to the tort of malicious prosecution) said (at [149]), in a passage on which Dr Toben relies: The essence of the tort is the abuse of civil proceedings for a predominant purpose other than that for which they were designed. This means for the purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought. The paradigm case is the use of the processes of the court as a tool of extortion, by putting pressure on the defendant to do something wholly unconnected with the relief, which he has no obligation to do. Such cases are extremely rare.
Whether or not, in order for a plaintiff to vindicate his or her reputation, it is necessary as a practical matter for a plaintiff in defamation proceedings to expound his or her views on the subject matter complained of, will no doubt vary according to the facts and circumstances of the case. It may not be necessary for a plaintiff to give evidence of his or her beliefs at all. However, assuming for present purposes that the opportunity to express one's views as to the matter complained of may form part of the process of achieving the legitimate purpose of vindicating one's reputation in a particular case, what is significant in the present case is that Dr Toben (as he is well aware) is in the position that, outside a privileged forum such as the court in the context of the present defamation proceedings, he is unable lawfully to publish his views on, or seriously question, matters relating to the Holocaust (and, in particular, is unable to debate or call into question whether the two disputed "pillars" of the Holocaust are historical fact or not). The opportunity to do that which he cannot otherwise lawfully do is clearly a collateral advantage. It is one that is unrelated to any relief Dr Toben might ultimately obtain in the proceedings, in the sense that it is an end in itself. It is literally the "use" of the Court process, not its outcome, that is the purpose of the proceedings.
To the extent that there is both a legitimate purpose and an improper collateral purpose (the difficult area to which Bridge LJ referred in Goldsmith v Sperrings) then the question is which is the predominant purpose. As noted above, Brennan J expressed the test as one as to whether there is a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding (see [118] above). Bridge LJ framed the test as whether, but for the ulterior purpose, the proceedings would have been commenced at all.
Dr Toben, in his own writings (see [26] above), has expressed the opinion that it matters not whether he wins or loses court proceedings of this kind. If that be so in the present case, and her Honour accepted that it was, then the inference to be drawn must be that Dr Toben's predominant purpose in the defamation proceedings is not to vindicate his reputation but to have an otherwise unavailable public forum to express his views and that, but for his desire to use the proceedings as an opportunity to air his views, the proceedings would not have been commenced. In the defamation proceedings now brought, Dr Toben has denied seeking to use the court process as a platform for historical polemic. However, there is ample basis in the material before her Honour, and having regard to his oral evidence, for the conclusion that this denial should not be believed (see for example the passages quoted by the News respondents in their submissions from the transcript of the hearing).
Dr Toben emphasises that in Crawford Adjusters (at [149]) Lord Sumption referred to the essence of the tort of abuse of process as being that proceedings were for the predominant purpose of obtaining "some wholly extraneous benefit … not reasonably flowing from or connected with the relief sought". Here, the collateral advantage that Dr Toben seeks by the use of the court process to obtain is something relevantly unconnected with the scope of the remedy he seeks in the proceedings: it is to have a forum in which to propound his views, or as he would have it, raise issues for philosophical debate, where that course is not open to him elsewhere in light of the Federal Court orders. It can be accepted that he would prefer to succeed in the defamation proceedings, but it was open to her Honour to conclude that that is not his predominant purpose. The advantage of being able to debate or discuss, in the course of the defamation proceedings, what he cannot lawfully do elsewhere is, to my mind, one that is extraneous to the purpose for which civil defamation proceedings are properly to be pursued (namely the vindication of, and compensation or redress to damage caused to, one's reputation). To the extent that Dr Toben relies on the dicta in Crawford Adjusters (at [149] in particular) as suggesting otherwise (by the reference there to a "wholly extraneous" benefit), that ignores or places insufficient weight on the words that follow (i.e., "and not reasonably flowing from or connected with the relief sought"). Here, putting the News respondents to proof of the disputed pillars of the Holocaust is anterior to, and not something that reasonably flows from or is connected with, the relief sought in the proceedings. It is something outside the scope of the remedy. If the dicta of Lord Sumption are to be read as going beyond this, then with respect this seems to move away from the law in Australia as explained in Williams v Spautz (see [114]-[118] above).
In those circumstances the primary judge did not err in concluding that the proceedings are an abuse of the court's process and should be permanently stayed.

Additional imputations - ground 9

Dr Toben submits that the proposed new imputations were relevant since they were not directly connected to the Holocaust or anti-Semitism. In that regard, however, the first and third additional imputations refer to the Jews; the third to the Holocaust; and the second to racist views that in the context must relate to anti-Semitism. Dr Toben submits that her Honour's reasons for rejecting his claim on the existing imputations could not apply to the cancelled invitation imputations and that, had they been allowed, then the proceedings would still be on foot.
The News respondents submit that the primary judge's conclusions as to Dr Toben's purpose would hold irrespective of the amendments but that in any event her Honour was correct when observing that the proposed additional imputations were either rhetorical or hypothetical; and that there is no utility in granting leave in relation to this ground of appeal.
I agree.

Notice of contention - proportionality issue

The News respondents rely on the notice of contention in the event that Dr Toben otherwise succeeds on his appeal grounds. In those circumstances it is not strictly necessary to deal with the issue raised in the notice of contention. However, for completeness, I note that the argument put forward by the notice of contention is that the orders made by the primary judge may be supported by s 67 of the Civil Procedure Act, on the basis that the cost and expense of the proceedings will be disproportionate to any interest Dr Toben has in vindicating his reputation, or seeking consolation or reparation for any damage to his reputation.
As already noted, the primary judge indicated that she would not have stayed the proceedings on the alternative basis argued by the News respondents, saying (at [108]) that their submission made an assumption as to the value of the interest at stake, which could not be taken to be established at this stage of the proceedings. In particular, her Honour considered that Dr Toben should be taken to have a prima facie case and that, without determining that case on the merits, it could not be assumed to be of little value.
The News respondents point to the overriding purpose of Part 6 of the Civil Procedure Act identified in s 56, and to s 60 of the Act, which they argue support the proposition stated by the primary judge in an earlier case (Bleyer v Google at [56]-[57]) that: … Sections 56 and 60 should not be read disjunctively. Further, there is ample authority in this jurisdiction (for which no authority is needed in any event) that the just allocation of the infinite resources of the court is a relevant consideration in the exercise of the court's authority, at least in civil matters. Once it is recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will be cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings.
The News respondents accept that a dismissal or stay of proceedings on the basis of a lack of proportionality alone will only rarely be justified (referring to what was said by Macfarlan JA in Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [44]) but they maintain that where the requisite disproportionality can be demonstrated it is appropriate to grant such relief (referring not only to Bleyer v Google but also to Grizonic v Suttor [2008] NSWSC 914).
In that regard, the News respondents point to the evidence before the primary judge as to their likely costs of conducting the proceedings (somewhere between $770,000 and $1,030,000 - see ([58] to [64] of the affidavit of Ben Raymond Teeger affirmed on 25 July 2014). They point to the fact that Dr Toben seeks to put truth in issue. They argue that Dr Toben's evidence made clear that his approach to the litigation is to dispute what the Holocaust involved in major respects.
The News respondents submit that her Honour erred (at [108]) by stating that an assessment of the value of Dr Toben's interest at stake was a matter of assumption, when there was evidence (including from Dr Toben) that made it possible to form a concluded view about the disproportionality between his interests at stake in the litigation and the costs and expenses involved in vindicating them. In that regard, they point to Dr Toben's general disinterest in allegations that he is a Holocaust denier and argue that Dr Toben's damages, if the imputations are not successfully defended, can only be nominal since he has repeatedly published and continues to publish material that is greatly more destructive of his reputation than anything published by the News respondents; and he has been ready to call himself a Holocaust denier.
They also argue that the finding by her Honour that Dr Toben had, as a significant purpose in bringing the proceedings, the wish to use the court as a forum to propound his views about the Holocaust and Jews (whether or not that be sufficient to amount to an abuse of process), is a relevant matter to take into account in weighing the interests at stake in the litigation.
Dr Toben's response on the question of the News respondents' likely costs of the proceedings is that the estimates provided in that regard were "self-serving" but that, in any event, if the News respondents' submissions on this issue are correct this means that defamatory imputations "may be published with impunity if there is only a small number of recipients or if it would be too costly for the media to defend claims". He argues that the costs evidence was "uncontradicted" only because the News respondents objected to cross-examination of Mr Teeger and the primary judge refused to allow it (T 5.20, 16.25). Complaint is made that Mr Teeger does not, in his affidavit, identify the two expert witnesses (or their field of speciality) that are anticipated and suggests that expert evidence of some matters may not be necessary given that he admits certain matters relating to the Holocaust. He raises issues as to other aspects of the costs estimate to which Mr Teeger deposed.
The News respondents in reply emphasise that Dr Toben did not lead any evidence to contradict the contents of the affidavits of Mr Teeger as to the likely costs of any final hearing in these proceedings. They argue that the cross-examination of Mr Teeger became unnecessary because no point was taken by them to Dr Toben's submissions on that evidence (T 5.1) and questions concerning expert evidence was to be the subject of submissions (T 5.18). They point out that Dr Toben's submissions concerning the figures set out in Mr Teeger's affidavits were very limited (referring to T 104.14-23; [8] and [9]) and argue that to the extent that his submissions in this Court go beyond the limited matters raised before the primary judge, they should be rejected.
It is not necessary here to address those issues. On any view of things, the costs of defending proceedings in which truth is put in issue as to historical events in World War II can be assumed to be not inconsiderable.
As to the submission that, even if successful, he may be likely to recover only small or nominal damages, Dr Toben points out that there have been cases where only small damages were awarded but nevertheless the successful plaintiff was awarded legal costs (Meskanas v Capon (District Court (NSW), Christie DCJ, 28 September 1993, unrep); Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619; [2010] NSWSC 924). In any event he disputes the proposition that he might be awarded only nominal damages, pointing to the imputations that he fabricated history about the Holocaust and that he spent time in prison in Australia or Germany for anti-Semitic activities. He maintains that those imputations are false as he did not spend time in prison in Australia for his Holocaust denial. He also points to the additional imputations he had sought to raise.
Dr Toben further argues that the doctrine of proportionality giving rise to a stay of proceedings has to date been directed to circumstances where there was small publication. He challenges the primary judge's reasoning or conclusion in Bleyer v Google at [57]. Dr Toben argues that Grizonic v Sutter was a case in which the proceedings had a lengthy history of in excess of 110 interlocutory adjudications and non-compliance with court directions; the plaintiff was no longer legally represented; the amount of final relief had been quantified; and the finding was that the probability of there being any surplus funds for the benefit of Mr Grizonic was slight and the utility of the proceedings "dubious in the extreme" (Brereton J at [63]).
Dr Toben also points to the defence of triviality in s 33 of the Defamation Act 2005 (NSW) and submits that if the News respondents' submissions as to the triviality of his claim are correct they can rely on the triviality defence. He notes that in Bleyer v Google, McCallum J rejected the suggestion that the availability of the defence of triviality was inconsistent with the recognition of proportionality (at [58]-[59]). He argues that in that case her Honour found disproportionality was a species of abuse of process; and suggests in effect that a defendant who is permitted to rely on a proportionality argument after failing on a claim based on abuse of process is being permitted to have two attempts.
Ultimately, the question of proportionality was one for the primary judge to assess, balancing Dr Toben's interest in these proceedings with the cost likely to be incurred. While reasonable minds might differ as to the assessment of proportionality in the present case, I am not persuaded that error in the House v R sense warranting appellate intervention has been established in the reasons her Honour gave for the view she expressed, in obiter, on this issue.

Conclusion

Leave to appeal should be granted and the appeal dismissed with costs.
PAYNE JA: I have had the privilege of reading the judgment of Ward JA in draft. I agree with her Honour's reasons and the orders she proposes.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2016

Toben v Jones [2009] FCAFC 104 Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193 Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 Toben v Milne [2014] NSWCA 49 Toben v Milne [2014] NSWCA 200 Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Texts Cited: JD Heydon, Cross on Evidence (10th ed, 2015, LexisNexis) JG Fleming, The Law of Torts (9th ed, 1998, LBC Information Services) Category: Principal judgment Parties: Fredrick Toben (Appellant) Nationwide News Pty Ltd (First Respondent) Clive Mathieson (Second Respondent) Christian Kerr (Third Respondent) Senator Christine Milne (Fourth Respondent) Representation: Counsel:

Solicitors: Team Business & Property Law (Appellant) Ashurst (First, Second and Third Respondents) Baker & McKenzie (Fourth Respondent) File Number(s): 2015/00372160 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 1784 Date of Decision: 30 November 2015 Before: McCallum J File Number(s): 2013/200157; 2013/200128

[This Headnote is not to be read as part of the judgment] On 21 June 2013, Nationwide News Pty Ltd published an article concerning Dr Fredrick Toben in The Australian newspaper and online. The article concerned the withdrawal of an invitation that had been made to Dr Toben by a New South Wales Member of Parliament for Dr Toben to attend a political fundraising event. Dr Toben alleged that the article conveyed a number of defamatory imputations about him, including that he was a "Holocaust denier" and an anti-Semite. Dr Toben commenced two sets of proceedings seeking damages for defamation: one, in relation to the newspaper article, was brought against the editor and the author of the article, Messrs Mathieson and Kerr, as well as Senator Christine Milne, to whom the article had attributed various comments; and the other, in relation to the online publication, against Nationwide News. The News parties (the first, second and third respondents to the present appeal) successfully applied to have the defamation proceedings permanently stayed on the basis that they were an abuse of the court's process. The defamation list judge considered it clear (from a review of publications by Dr Toben and his evidence on the stay application) that Dr Toben's purpose in bringing the proceedings was not to vindicate his reputation but, rather, to use the proceedings to express his views as to the Holocaust. Dr Toben sought leave to appeal from that decision. His position is that he denies the truth of all the alleged imputations. Dr Toben does not deny that there was a Nazi policy of systematically exterminating Jews and others in World War II but denies and seeks publicly to question the nature and extent of the Holocaust. He accepts that he wishes to use the proceedings as a forum to espouse his views but contends that this is not an improper purpose nor an abuse of the court's process. Held, granting leave to appeal and dismissing the appeal, by Ward JA (Meagher and Payne JJA agreeing at [1] and [145], respectively): (1) (at [46]) this is an appropriate case to grant leave to appeal since it raises an important issue of principle as to what constitutes an abuse of process such as to warrant a permanent stay of proceedings. (2) (at [56]-[57]) no House v R error (House v The King (1936) 55 CLR 499; [1936] HCA 40) has been demonstrated in relation to the decision of the primary judge to permit the cross-examination of Dr Toben, which was one clearly within her Honour's discretion. (3) (at [59]; [62]) Dr Toben was well on notice, prior to the hearing of the application before the primary judge, of what the respondents contended was his real purpose in bringing the proceedings. In those circumstances, there can be no complaint as to a failure to comply with the rule in Browne v Dunn (1894) 6 R 67 or the lack of an opportunity to explain his position. (4) (at [69]-[70]) there is no merit to the complaint as to failure to give, or adequacy of, reasons for the primary judge's findings of improper purpose. Her Honour referred to a number of Dr Toben's publications, as well as to the cross-examination of Dr Toben, which clearly formed the basis for the conclusion she reached. It cannot have been necessary for her Honour to provide pinpoint references to Dr Toben's writings. (5) (at [82]; [84]-[85]) the primary judge did not make any finding as to the truth of the "commonly understood" meaning of the Holocaust, nor did her Honour impermissibly apply her own knowledge or understanding of historical events or make any finding as to Dr Toben being a "Holocaust denier" or as to the truth of the imputations. (6) (at [103]; [110]) Dr Toben's predominant purpose in the proceedings was not to vindicate his reputation or to achieve compensation/redress; it was, rather, to vindicate his belief in the true meaning of the Holocaust. That is the very thing that the Federal Court orders would preclude him from doing outside the court process and it is the collateral advantage of so doing that sustains the conclusion that the proceedings were an abuse of process. (7) (at [143]) (obiter) ultimately, the question of proportionality as between the cost of the proceedings and any interest Dr Toben had in vindicating his reputation, raised in the respondents' notice of contention, was one for the primary judge to assess.

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (40)