Toben v Nationwide News Pty Ltd; Toben v Mathieson

Defendants' application

1. The application before the Court is to have the proceedings stayed or dismissed as an abuse of process. The application is brought by all of the defendants other than Senator Milne but she supports it. The basis for the application is the contention that Dr Toben's purpose in pursuing these proceedings is not to vindicate his reputation against imputations that he is a Holocaust denier and an anti-Semite but rather to use the process of the Court as a forum in which to create a record of his beliefs concerning the Holocaust and about Jews. The defendants say that is an improper use of the process of the Court and that the proceedings should accordingly be permanently stayed or dismissed.
2. Alternatively, the defendants contend that the determination of the issues raised by Dr Toben's pleadings will require an extensive inquiry into the events of World War II, particularly in Germany in the 1930s and 1940s. They contend that the legal costs and court resources that will have to be expended to determine those issues will be vastly disproportionate to the interest at stake and that the proceedings should accordingly be dismissed in accordance with the principles considered by me in Bleyer v Google [2014] NSWSC 897; 88 NSWLR 670.
3. The abuse of process argument is more fully expanded in the defendant's outline of submissions 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 pursing 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.
4. The reference to the orders of Branson J is explained below.

Plaintiff's application to amend

1. There is also before the Court an application by Dr Toben for leave to file an amended pleading. Dr Toben initially commenced two sets of proceedings, one in respect of the printed edition of the newspaper and one in respect of the publication of the same article on the internet.
2. The parties in the proceedings relating to the printed article are Mr Clive Mathieson, Mr Christian Kerr and Senator Christine Milne. Mr Mathieson was the editor of The Australian and Mr Kerr was a journalist at that newspaper. In the proceedings relating to publication on the internet, the only defendant is Nationwide News Pty Ltd as owner of the relevant website.
3. Senator Milne is now sued only in respect of the words attributed to her in the article, not the whole article. Leaving aside her separate position, the two proceedings sought damages against different co-publishers of the same article. The reason for dividing the claims in that way appears to have been to enlarge the range of damages that may be awarded by seeking two awards up to the statutory cap rather than only one. In Dank v Whittaker (No 4) [2004] NSWSC 732, I concluded in similar circumstances that duplicate proceedings in which a plaintiff "with an eye on the cap" separately sued different defendants who in combination had published the same or substantially the same defamatory matter should be consolidated: at [47] to [75]. (It might be observed that such duplication complicates the administrative steps in the proceedings, increasing the burden on already over-burdened court staff.)
4. In light of the decision in Dank, Dr Toben has now propounded a proposed combined statement of claim. For reasons that were not explained, the proposed amended pleading contemplates that Mr Mathieson would no longer be a defendant. The parties are otherwise the same. An order consolidating the two proceedings was made by consent at the outset of the hearing of the present application. However, the proposed amended pleading also seeks to add three new imputations which are objected to on the grounds of form. The proposed amendment is opposed on that basis.

Allegation of delay

1. Before turning to the more complex issues raised by the defendants' application, there is one issue that can be addressed shortly. The defendants' application was brought over a year after the commencement of the proceedings. Mr Evatt, who appears with Mr Rasmussen for Dr Toben, submitted that the application should be dismissed out of hand on the grounds of delay. Mr Evatt observed that the defendants have taken no step in the proceedings and, in particular, have filed no defence.
2. Mr Hmelnitsky SC, who appears with Mr Afshar for the defendants, submitted that it was entirely appropriate for the defendants to bring the present application before taking any other step in the proceedings. I agree. The real issue is not the order in which events have occurred but the timing.
3. It is clear that the delay does not fall at the feet of the present applicants (those defendants who are associated with the newspaper). The statements of claim were filed on 1 July 2013. There followed a number of interlocutory contests between Dr Toben and Senator Milne which did not concern the newspaper defendants. First, in August 2013, Senator Milne objected to the form of the pleading as against her. Dr Toben responded by serving a proposed amended statement of claim which cured the defect complained of but also sought to add a cause of action against Senator Milne for misleading or deceptive conduct contrary to s 18(1) of the Australian Consumer Law.
4. I note that the misleading or deceptive conduct claim was brought forward on the premise that the Senator's statements were made "in trade or commerce" within the meaning of the Act in that Dr Toben is "an historian and researcher by occupation" who has published and continues to publish numerous "historical articles" and six books about the Holocaust and anti-Semitism. I will return to the significance of that assertion.
5. Senator Milne opposed the amendment and also objected to two of the imputations specified in the original pleadings.
6. On 18 October 2013, I determined Senator Milne's applications, refusing leave in respect of the new cause of action and striking out the two imputations objected to by her: Toben v Mathieson; Toben v Nationwide News Pty Limited [2013] NSWSC 1530.
7. Dr Toben sought leave to appeal against that decision. On 10 March 2014, the Court of Appeal refused leave to appeal in respect of the new cause of action and one of the imputations but granted leave to appeal in respect of one of the imputations: Toben v Milne [2014] NSWCA 49. The appeal in respect of which leave was granted was determined on 26 June 2014. The appeal was dismissed but Dr Toben was granted leave to replead the impugned imputation: Toben v Milne [2014] NSWCA 200.
8. The stay application brought by the newspaper defendants was filed within a month after the publication of the decision of the Court of Appeal, on 25 July 2014. In the circumstances, I do not think Mr Evatt's complaint of delay is well-founded. The newspaper defendants were not involved in those interlocutory steps. I do not think it was unreasonable for them to await their resolution before taking any step in the proceedings.
9. In any event, if it is established that the proceedings amount to an abuse of process, any delay on the part of the defendants in making that contention would not be a reason to allow the abuse to continue. At most, it would be a complaint sounding in costs.

Issues to be determined

1. It is important to understand the issue raised by the defendants' application. The defendants do not say that the matter complained of is incapable of being defamatory of Dr Toben or that he is incapable of being defamed; they do not deny the existence of a prima facie cause of action for defamation or suggest that the claim is amenable to summary dismissal.
2. Nor is the present application concerned with the broader issues addressed in Dr Toben's writings. This judgment makes no finding or assumption as to the truth or otherwise of any posited historical fact or belief; that is not necessary for the present analysis.
3. The application focusses rather on the narrow issue of the purpose for which Dr Toben prosecutes the cause of action. It invokes the principle that a litigant will be prohibited from invoking the court's authority to decide in cases where it is established that the litigant's purpose in doing so is one that is improper or collateral to the purpose for which the court's authority exists.
4. The defendants bear the onus of establishing that Dr Toben's predominant purpose in using the legal process is improper or one other than that for which it was designed: Williams v Spautz at 529. Having regard to the seriousness of the order sought, the onus is a heavy one. As stated in Williams v Spautz at 519, "it is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction."

The epistemological loop

1. Before turning to the evidence as to the purpose for which the proceedings are brought, it may be helpful to explain the legal context in which the issue arises.
2. As already observed, the purpose of the tort of defamation is to protect reputation. The Defamation Act 2005 (NSW) provides in s 8 that a person has a cause of action in respect of the publication of defamatory matter. Matter is defamatory (or not) according to the act or condition it attributes to the plaintiff. A plaintiff is presumed at law to enjoy a good reputation unless it is proved otherwise. The essence of the cause of action is that a person's presumed good reputation has been harmed by the attribution to him or her of a specified act or condition. The content of the attribution is the critical focus of the cause of action; that is why it is the subject of so much argument in proceedings in the Defamation List. That is a long and probably unnecessarily complex way of saying that defamation is a cause of action that turns on the meaning of words.
3. But, to borrow from the language of computer gaming, an action for defamation is not an "open world game". In order to delineate the issues in the proceedings, the plaintiff is required to specify the defamatory imputations he or she alleges were conveyed by the matter complained of. If there is any ambiguity in the meaning specified by the plaintiff, the court should resolve it: Singleton v Ffrench (1986) 5 NSWLR 425 at 435; Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [22].
4. As already noted, the truth or falsity of the meanings specified by the plaintiff is irrelevant to the question whether the claim is actionable. But where truth is raised, the proposition to be proved true or false is the proposition comprehended in the imputation. The action cannot proceed on the basis that an imputation is defamatory because it is understood in one sense and true (or false) because it is understood in another.
5. Dr Toben's case defies simple application of those principles and leads, rather, into what Mr Hmelnitsky termed "an epistemological loop". The difficulty arises from Dr Toben's reliance on imputations referring to the Holocaust. The point is best illustrated by reference to the imputation that the plaintiff is a "Holocaust denier". For the meaning of that imputation to be clear, there must be clarity as to what it is that Dr Toben is attributed with denying. More precisely, there must be clarity as to what Dr Toben contends he is attributed with denying. Further, as explained above, the answer to that question must be the same both for the purpose of determining defamatory meaning and for the purpose of determining truth or falsity.
6. Unusually, I was provided with two sets of written submissions for Dr Toben in the present case. One was written by Mr Evatt, counsel for Dr Toben. A second, lengthier submission was written and signed by Dr Toben himself. I would not ordinarily have allowed that course. However, Mr Hmelnitsky did not object and, for reasons I will explain, the submissions authored by Dr Toben are important.
7. The submissions revealed a different understanding of the case as between Dr Toben and his counsel. Mr Evatt put a narrow case. He insisted that "the Holocaust" means "the systematic murder of Jews and others by the Nazis during the war" and that the term "Holocaust denier" means a person who denies that the Holocaust occurred. He submitted that Dr Toben does not deny that an event described in those terms occurred and, therefore, Dr Toben is not a Holocaust denier and it is defamatory to say that he is. A simple case.
8. Dr Toben's position (as revealed by the written submissions authored by him and his evidence on the application) was more subtle. The defendants' written submissions assert that Dr Toben "is not seeking to restore his reputation as a person who does not deny the Holocaust as that expression is commonly understood."
9. Dr Toben took the defendants to task on that issue. In his written submissions, responding to the defendants' use of the term "commonly understood", he said: "The applicants fail to qualify how the expression "the Holocaust" is commonly accepted and understood. It appears from the outline that the applicants…expect the Court to take "judicial notice" of the expression. In reality, the expression "the Holocaust" means different things to different people."
10. The submission proceeded to provide examples of different Holocaust narratives. Dr Toben said "the extent that historical narratives relating to the Holocaust consume time during the proceedings will be more so dictated by the manner in which the defendants choose to conduct their defence, and/or reach concurrence with the plaintiff on what is 'commonly understood' as 'the Holocaust'".
11. Dr Toben explained what his approach will 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.
12. Thus Dr Toben asserts that his approach will not be to offer his own view as to what happened during the war but only to review the changing narratives given by others.
13. Dr Toben has previously been prepared, in a different context, to proffer his own definition of "the Holocaust" and why it is "a lie". A judgment of the Federal Court records that, in January 2005 (scil: it appears the correct date may be 2006), Dr Toben made the following statement in an interview published in The Teheran Times (recorded in the judgment of Lander J at [24]): A: - The Holocaust is a lie because none of its three main pillars on which it rests are factually true or proven. Germany - Hitler systematically exterminated European Jewry. There is simply no proof of this claim - it was a transfer of Jews, and together with Zionist collaboration, German Jews arrived in Palestine - with their property. Others were moved out of German territory - and Auschwitz was a transit camp. The killing as done in huge chemical slaughterhouses - homicidal gas chambers. This is a technical impossibility because you can work out how long it would take, for example, to kill 1 million people - the size of a city like Adelaide - without anyone finding out about it. The world soon found out President Bush lied about Iraq's Weapons of Mass Destruction - that lie didn't last even one year. Six million Jews were killed - this number is mythical/religious - and although at one time the numbers killed at Auschwitz was claimed to be 4 million, then reduced to 1-1.5 million, and now to around 500,000, the six million remains the same. Why? Anyone who questions these three points is imprisoned - and revisionists just ask these questions if they wish to know the facts about the Holocaust story.
14. Dr Toben now evidently distances himself from that earlier statement. His definition as to what the term "the Holocaust" means in his own imputations for the purpose of these proceedings is unclear.
15. As already noted, if the meaning of a term used in an imputation is unclear, the ambiguity should be resolved by the Court. However, that is not the point raised by the present application. The defendants accept that, since "Holocaust denier" was the term used in the matter complained of, the plaintiff is probably entitled to sue on an imputation in those terms on the authority of Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135 at 137.
16. The uncertainty is important for a different reason which is that Dr Toben's action can be seen to rest on a shifting premise. He alleges that the imputation is defamatory. He also alleges that he knows it to be untrue (as a particular of aggravated damage). The material relied upon by the defendants reveals that those allegations make different, inconsistent assumptions as to the meaning of the term "Holocaust denier".
17. It is not defamatory to attribute a person with the denial of something unless something is known of what is said to have been denied. The "Holocaust denier" imputation is capable of being defamatory only on the premise that it attributes Dr Toben with the discreditable denial of an obvious and important truth. Its use in that sense is clearly a necessary premise of Dr Toben's allegation that the Holocaust imputations are defamatory; so much appears to be accepted by Dr Toben.
18. However, for the purpose of his assertion that he knows the imputations to be untrue, Dr Toben asks, what is truth? It is clear on the evidence before me that the premise on which Dr Toben asserts he knows it to be untrue that he is a Holocaust denier is that the occurrence of the Holocaust, as "commonly accepted", is not an obvious truth.
19. Thus it may be seen that, for different purposes, Dr Toben's case both accepts and rejects what he himself has identified as central tenets of the "commonly accepted" truth as to the Holocaust.

The existential crisis

1. That is not the only shift in Dr Toben's position. I noted earlier that, for the purpose of seeking leave to prosecute a claim for misleading or deceptive conduct against Senator Milne in these same proceedings, Dr Toben claimed to be "an historian and researcher by occupation" who earns his living by publishing books and articles about the Holocaust and anti-Semitism. Owing to the importance of that issue in the earlier application, that contention (which had not been pleaded) was required to be written out as a proposed particular of the new claim (MFI 1 on that application).
2. In the present application, Mr Evatt said that Dr Toben is not a historian but a philosopher who, like any philosopher (Mr Evatt cited Kant and Hegel), is given to abstract thinking. Mr Evatt took me to the introduction of Dr Toben's book, 40 days in Teheran published in 2007 (exhibit A), which Mr Evatt described as being "typical of [Dr Toben's] evidence" and "typical Kant". The book provides "Toben's opening quotes", which are three quotes attributed to Germar Rudolph. The first asks, "how can anybody seriously believe that the Holocaust did NOT happen?" considering various matters. The second quote asks, "How can anybody seriously believe that the Holocaust DID happen?" considering all the "absurdities" and so on. This interesting philosophical conundrum is brought together in Rudolph's third statement: "Thousands of historians and other researchers, hundreds of prosecutors, judges, and jurors - have they all lost their minds? Or were they all so brainwashed by wartime propaganda or trembling in fear of the Jews that they did not dare to rock the boat?"
3. Dr Toben claims, by this device, merely to pose questions for discussion. In his evidence in the proceedings, he repeatedly emphasised that he is a philosopher who merely questions. So, the proposed trade practices claim sought to protect the trade of Dr Toben the historian, who publishes books and articles about history, while the defamation claim is brought by Dr Toben the philosopher, who merely questions such events at an abstract level (and can therefore contest the truth of an imputation that he was ever so definitive as to deny the common conception of a historical event).
4. The analysis of the defendants' contention that the proceedings are an abuse of process has been complicated by Dr Toben's adoption of those shifting, inconsistent premises. There is much force in Mr Hmelnitsky's submission, in those circumstances, that the pleadings and the proceedings are being treated as "some sort of parlour game".

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

1. The defendants' central contention in support of the allegation that the proceedings are an abuse of process is that Dr Toben does not, in truth, seek to vindicate his reputation but, rather, seeks to use the proceedings as a forum in which to ventilate his views about the Holocaust and about Jews. An aspect of the contention is that Dr Toben holds strong views on those topics but would not be permitted to express them outside the construct of these proceedings. Some explanation is required. The following narration of the background is lengthy but it is important to an understanding of the conclusion I have reached.
2. Dr Toben was the director of an organisation called the "Adelaide Institute". An extract from that organisation's website (recorded in a judgment of Branson J to which I will come shortly) said: "We are a group of individuals who are looking at the Jewish-Nazi Holocaust, in particular we are investigating the allegation that Germans systematically killed 6 million Jews, 4 million alone at the Auschwitz concentration camp…We are not "Holocaust Deniers". We proudly proclaim that to date there is no evidence that millions of people were killed in homicidal gas chambers. That is good news all round. Why should anyone find this offensive…unless it offends those who have their snout in the trough which Jewish academic, Dr Frank Knopfelmacher called, "the Holocaust racket"."
3. The Adelaide Institute published newsletters to "associates and supporters". Some of the newsletters were in evidence before me. Their content is such as would plainly be regarded by many readers as being openly supportive of the Nazi leader, Adolf Hitler, and openly anti-Semitic.
4. On 31 May 1996, the then executive vice-president of the Executive Council of Australian Jewry, Mr Jeremy Jones, made a complaint to the Human Rights and Equal Opportunity Commission that Dr Toben (in his capacity as director of the Adelaide Institute) had breached s 18C of the Racial Discrimination Act 1975 (Cth) by uploading certain material to the Institute's website. The complaint alleged that the material made available on the internet by the Adelaide Institute constituted "malicious anti-Jewish propaganda".
5. The complaint was not considered to be amenable to conciliation and was referred to a public inquiry pursuant to s 24E(1)(a) of the Act. A public hearing was conducted pursuant to s 25A of the Act. On 5 October 2000, the inquiry commissioner upheld the complaint: Jones v Toben [2000] HREOCA 39.
6. It is relevant, in the present context, to record aspects of the hearing, including the prehearing procedures, as recorded in the judgment. The commissioner recorded that, during the period when she was endeavouring to identify and clarify the matters the subject of the inquiry, she received numerous written submissions from Dr Toben and a large number of witness statements relating to the evidence he wished to place before the commission at the inquiry. In one of his written submissions, Dr Toben provided a witness list identifying 36 witnesses whom he proposed to call in the course of the inquiry. He formally sought leave to video-record the proceedings. He objected to a direction by the commissioner that a directions conference be held in private.
7. In due course, Dr Toben filed 42 witness statements. He informed the commissioner that those witnesses could all give evidence "which would establish that the assertions in the material contained on the website were true". Dr Toben told the commissioner "truth is the defence". His primary contention was that the purpose of the inquiry was to "prove" whether the events known as "the Holocaust" in fact occurred. The commissioner stated: "Dr Toben's argument was that his website and his own research was concerned with the extent to which the events and circumstances relating to Jewish people in Europe in the 1930s and 40s had been "mythologised": his proposition was that all credible evidence pointed to the fact that although the German State regarded Jewish people as enemies of the State and took steps to exclude them from the German State by, among other things, placing them in labour camps where many died, there was no process of State sanctioned mass extermination of Jewish people, and in particular there were no gas chambers at the various labour camps such as Auschwitz. Dr Toben also asserted there was significant evidence which now established significantly fewer than 6 million Jewish people perished during this period of time: possibly, he asserted, as few as 1.8 million. Dr Toben's argument which is asserted in the material on his website as well as at this and other directions hearings conducted in relation to this inquiry, is that implications concerning the political position of the Jewish Community can be derived from the fact that it takes a variety of significant steps (such as the making of this and other complaints to this Commission) to prevent or impede the conduct of research and investigations such as his into the truth of the events relating to what Dr Toben refers to as "the alleged Holocaust"."
8. The commissioner determined that she would hear from six witnesses on behalf of Dr Toben including Dr Toben himself. She reserved her decision as to a further seven, inviting Dr Toben to put on submissions as to their relevance. No submissions were provided at any stage. Dr Toben subsequently withdrew from the proceedings but, when the public hearing commenced, did attend, representing himself.
9. At the inquiry, Dr Toben sought to challenge the validity of the legislation (an issue the commissioner indicated she did not have authority to decide). He also maintained his contention that "truth is a defence".
10. On the question of truth as a defence, the commissioner recorded the following: "Dr Toben wished to adduce evidence before this inquiry as to "the truth" of "the alleged Holocaust" (his expression). I indicated to Dr Toben that was not the issue before me or the issue I had to determine under the Act. My view is that I am required to determine whether a public act has been carried out by Dr Toben which "is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people", and further whether if that is the case, that act has been done because of the "race, colour or national or ethnic origin of the other person or some or all of the people in the group". The "truth" of an assertion made is not the only factor which the legislation requires to be taken into account in making this determination. It may well be the case that even if an assertion is "true", it might still bring section 18C into operation. The "truth" may be more relevant to the operation of section 18D, which provides an exemption from the unlawfulness established by section 18C. I shall address this issue and in particular section 18D below."
11. When he appeared before the inquiry, Dr Toben indicated he would not be calling any witnesses. He sought to tender a 390 page thesis by a Mr J S A Hayward entitled "The Fate of the Jews in German Hands: An Historical Enquiry into the Development and Significance of Holocaust Revisionism". The commissioner indicated that the complainant, Mr Jones, needed an opportunity to consider the document and that it was very late in the inquiry to rely upon such a lengthy document, particularly considering the extensive pre-hearing process. Dr Toben then handed up a large bundle of documents and made complaints relating to recent publications in The Australian Jewish News which he claimed were defamatory of him. The commissioner describes the following events: "Dr Toben then advised the inquiry that he had a "moral problem", and made the following comments: "If the truth is no defence before this Commission, then the lie must obviously prevail, and that is a moral problem I have." "Because our behaviour, if we have no truth as a defence, is immoral. We cannot proceed with these proceedings if we are moral persons, because truth is no defence." Dr Toben then described the inquiry as "an inquisition", and said he had come to the hearing because he wanted to continue in placing his arguments but "I can't if you can't give me that assurance". He described the inquiry as "an immoral outfit" and concluded: "It's immoral what you're doing. The Commissioner: Okay Dr Toben: Highly immoral and improper. Truth is no defence. Truth is therefore relegated nowhere except the lie flourishes. We can't go on and yet you will. The Commissioner: Mr Jones will have to establish his complaints to my satisfaction. Dr Toben: I shall leave it to you, Commissioner. I beg to be excused. The Commissioner: That's your choice, Dr Toben. Dr Toben: As I said, if truth is no defence, the lie must prevail. Goodbye gentlemen. Mr Jones and Mr Wertheim, they didn't even say good morning to me - or they didn't even shake hands. What rudeness. Right? The Commissioner: I'm sorry if they have been discourteous to you, Dr Toben, that you may feel that. Dr Toben: Thank you."
12. The commissioner notes that Dr Toben then left the inquiry and did not return. He did, however, write to the commissioner after the conclusion of the hearing comparing HREOC to the Stalinist show trials (he attributed these remarks to others). The letter concluded "Jones tells lies about the Auschwitz concentration camp - and any judgment from you in his favour would support such lies. Do you want to be known as a supporter of liars?"
13. In his written submissions in these proceedings, Dr Toben dismissed his persistent focus on "matters of falsehood and truth" before HREOC as a reflection of his "ineptitude" as a self-represented litigant. That submission misses the point. The importance of the record of what occurred in the proceedings before HREOC is that it reveals that, contrary to his claim now to be a philosopher with no fixed views who records the views of others only as part of the philosophical discourse, it is beyond doubt that Dr Toben then had a fixed view which he was happy and indeed anxious to record.
14. The complaint was upheld. The central facts were not in issue; Dr Toben acknowledged that he was responsible for the material placed on the Adelaide Institute website and for all actions of the Adelaide Institute, which he "proudly asserted…represented independent and international research into an important historical and sociological issue". The commissioner found that the publication of the material (for which Dr Toben was responsible) was unlawful behaviour contrary to s 18C of the Act. The commissioner accordingly found the complaint substantiated and made a declaration to that effect. She also made a declaration that Dr Toben should remove the contents of the Adelaide Institute website from the World Wide Web and not republish the content of that website in public elsewhere. Finally, the commissioner made a declaration that Dr Toben should make a statement of apology to Mr Jones and the members of the Jewish community he represented. The declaration set out the terms of the apology.
15. Mr Jones applied to the Federal Court of Australia for orders pursuant to s 25Z(1)(b) of the Racial Discrimination Act to enforce those determinations. The enforcement application was determined by Branson J. Her Honour did not make any order enforcing the publication of an apology, for the good reason that she did not consider it appropriate "to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel": Jones v Toben [2002] FCA 1150; 71 ALD 629 at [106]. Her Honour otherwise reached substantially the same conclusions as those reached by HREOC.
16. Justice Branson ordered Dr Toben to do all acts and things necessary to remove the offending material from the internet. Her Honour also made an order restraining Dr Toben from publishing that material again or any other material which conveyed the following imputations or any of them: there is serious doubt that the Holocaust occurred; it is unlikely that there were homicidal gas chambers at Auschwitz; Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; 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.
17. An appeal by Dr Toben against the decision of Branson J was dismissed by the Full Court of the Federal Court: see Toben v Jones [2003] FCAFC 137 (Carr, Kiefel and Allsop JJ).
18. The decision of the Full Court was published on 27 June 2003. In the meantime, Dr Toben had deleted all material on the website within the time required by the orders of Branson J. Subsequently, however, material the subject of the order was again published on the same website. After the publication of the decision of the Full Court, a large amount of further material was published.
19. On 16 November 2006, Mr Jones filed a notice of motion in the Federal Court seeking an order that Dr Toben be found guilty of contempt. The motion sought an order that Dr Toben be punished for the contempt including by committal to imprisonment. An amended statement of the charge specified 144 statements said to have been published by Dr Toben which gave rise to each of the four imputations specified in the restraining order made by Branson J.
20. The contempt motion came before Moore J. Dr Toben was represented by counsel (pro bono) on that occasion. It was indicated that Dr Toben wished to purge his contempt by agreeing to give undertakings to the Court. Dr Toben apologised to the Court for his contempt of Branson J's orders. He gave an undertaking to the Court to comply with those orders henceforth and to remove all files and material identified in the contempt charge from the Adelaide Institute website and from all other websites within his control.
21. Dr Toben's reaction to the events of that day is recorded in a later judgment of the Federal Court per Lander J in which Dr Toben was found guilty of criminal contempt for further breaches of the orders of Branson J and of the undertaking given to the Court before Moore J at the hearing of the first contempt motion: Jones v Toben [2009] FCA 354; 255 ALR 238 at [32]. Dr Toben posted a note on the website which suggested that the consent orders had been agreed "under duress" and added the following as his own comment: "Now is the time to begin an action in the courts to state how hurtful any mention of the Holocaust is to German Australians, especially because through such orders, as above, it is not permitted openly to discuss the factuality of any claim made by any Holocaust survivor. Now more than ever it is still possible to defame anyone with the Holocaust allegations - and get away with it because courts have sanctioned such defamation actions. A sad day for free expression, really - still, I shall attempt to comply for a fourth time with such orders."
22. Justice Lander found Dr Toben guilty of 24 counts of contempt. In a separate judgment, his Honour determined that the seriousness of Dr Toben's conduct warranted the imposition of a sentence of imprisonment. Dr Toben was sentenced to a term of imprisonment for three months.
23. An appeal against the severity of the sentence imposed by Lander J was dismissed: Toben v Jones [2009] FCAFC 104. That judgment was published on 13 August 2009. Dr Toben was ordered to pay Mr Jones's costs.

Dr Toben's defamation proceedings against Mr Jones

1. The decision of Lander J was the subject of an article of which Dr Toben alleges Mr Jones was a publisher. Almost three years later, Dr Toben sued Mr Jones for defamation, alleging that the article conveyed the following imputations defamatory of him: the applicant is an anti-Semite; the applicant falsely said that the influence of the Talmud was pervasive; The applicant falsely said that the Shoah was a mass fraud perpetrated on humanity.
2. A claim for misleading or deceptive conduct was pleaded in the alternative. Mr Jones sought to have the proceedings stayed on grounds echoed in the present application but with an important difference. It was submitted that the proceedings against Mr Jones were an abuse of process, not on the grounds asserted here but because they had been commenced by Dr Toben for the collateral and improper purpose of coercing Mr Jones to refrain from having his bill of costs in the contempt proceedings taxed.
3. The stay application came before Yates J. His Honour was satisfied that the commencement of the proceeding was an abuse of the court's process and ordered that the proceeding be stayed permanently: Toben v Jones [2012] FCA 1193.

Evidence in the proceedings

1. The Adelaide Institute continues to publish newsletters about the Holocaust and about Jews. The defendants tendered a number of newsletters available on the Institute's website bearing dates ranging from December 2004 to July 2014. Also tendered was material published by Dr Toben on his personal website. On the strength of his own writings, it is difficult to conclude otherwise than that Dr Toben has a clear agenda to create a public forum for disputation of the history of the Holocaust and for the expression of anti-Semitic views.
2. Dr Toben relied upon two affidavits in opposition to the relief sought by the defendants. He stated that he was surprised and upset when he read the matter complained of and that it caused him considerable distress. He said it made derogatory statements of him which are untrue. He said that each of the imputations specified in his pleadings (set out above) is false. He said that his hurt and upset about the article has increased by reason of his knowledge of the falsity of the imputations. He said that he is bringing this claim against the defendants because they have damaged his reputation and have caused him distress, upset and injury to feelings and that he seeks vindication of himself and his reputation.
3. Mr Hmelnitsky sought leave to cross-examine Dr Toben. He acknowledged that cross-examination would not ordinarily or automatically be allowed on an interlocutory application. He made it plain, however, that he proposed to put a submission that vindication of reputation on the imputations pleaded is not Dr Toben's true purpose in bringing these proceedings. On that basis, he submitted that it would be appropriate for the Court to grant leave to cross-examine so as to allow the proposition to be put squarely and to afford Dr Toben an opportunity to respond to it. Mr Hmelnitsky also indicated that he proposed to invite the Court to infer from the material put before the Court by the defendants that Dr Toben is racist and an anti-Semite and that his evidence to the contrary should be rejected altogether.
4. In the unusual circumstances of this case, I determined that it would be appropriate to allow cross-examination of the plaintiff. The submissions foreshadowed by Mr Hmelnitsky raised a real question as to the purpose for which the Court's authority to decide is invoked in this case; the documentary material tendered by the defendants afforded ample basis for those submissions. I considered that cross-examination should be permitted not only as a matter of fairness to both parties but to inform the proper exercise of the Court's power (which is also regarded as a duty) to suppress any abuse of its process.
5. The cross-examination confirmed the apprehension of a shift in the discourse. There can be little doubt that, prior to his imprisonment, Dr Toben was prepared to accept and indeed embrace, as fact or at least his own belief, the four imputations specified in the orders of Branson J.
6. The evidence of that is overwhelming. Dr Toben conducted the inquiry before HREOC on the basis that "truth is a defence"; he defended the application before Branson J to enforce HREOC's determinations on the same basis; he appealed to the Full Court of the Federal Court, not to challenge the finding of Branson J that his publication of the material was reasonably likely to offend, insult, humiliate and intimidate the groups identified by her Honour but to test the Constitutional validity of the relevant provisions of the Racial Discrimination Act and otherwise to test his entitlement to publish such material.
7. In his first judgment, Lander J recorded that, at about the time the matter was heard by the Full Court, Dr Toben published on the Adelaide Institute website "that the appeal would signal how strong the Jewish Zionist influence is in the Australian judiciary where a battle rages between common law and Talmudic law". Before Moore J, charged with having republished the Branson imputations, he apologised for doing just that and undertook not to do so again. On the same day, he published remarks on the Adelaide Institute website suggesting the undertakings were given under duress. His remarks published that day (set out above) are particularly revealing. In those remarks, he called for action in the courts to state how hurtful any mention of the Holocaust is to German-Australians "especially because through such orders it is not permitted openly to discuss the factuality of any claim made by any Holocaust survivor". He described that to be "a sad day for free expression".
8. Justice Lander also records that Dr Toben considered withdrawing from the "consent agreement" (reflected in the orders of Moore J) following the publication of an article in the Australian Jewish News. The article opened: "Dr Fredrick Toben this week gave an apology in the Federal Court of Australia for being in contempt of court by continually featuring Holocaust denial material on his Adelaide Institute website."
9. Dr Toben subsequently wrote to the Associate to Moore J attaching a copy of that article and stating: "The world has been informed of a deception - of my recanting my "Holocaust denial" belief per an apology to [the Federal Court]."
10. As already made plain, the point is not to record my acceptance or rejection of any aspect of that history of these proceedings but only to explain my conclusion that, prior to his imprisonment, Dr Toben had firm beliefs as to what did or did not in fact happen during the second World War and was anxious to express and record those beliefs. He had no hesitation in calling aspects of the common conception of the Holocaust "lies"; the discourse adopted the language of truth and lies.
11. In these proceedings, there is a shift in language. Throughout his evidence, Dr Toben flatly refused to be drawn as to his views and indeed appeared to deny that he holds any views as to the Holocaust at all; he is merely a philosopher. He characterised his statements as "philosophical discourse".
12. The first illustration of that consistent theme came early in the cross-examination. Mr Hmelnitsky began with the fact that Dr Toben, in these proceedings, sues on an imputation that he is an anti-Semite.
13. Dr Toben's personal website has a page dated 12 December 2014 under the tag "free expression". He sets out a quote attributed to Henry Ford Snr in May 1920 expressing anti-Jewish sentiment, followed by the words: "Don't only blame the Jews; also blame those that bend to Jewish pressure."
14. In his cross-examination, Dr Toben accepted that those were his words. The cross-examination continued: Q. That is something of a maxim that you live by, isn't it? A. It is a little more complicated than that. These are mere phrases that I use to encapsulate our problem in focussing on deeper issues.
15. It was drawn to Dr Toben's attention that the material appeared under the heading "Testing Fredrick Toben's maxim" and he agreed that was his description of those words, that is, as a maxim. The exchange continued: Q. You've referred to those words as being your maxim on several occasions, haven't you? A. I have used that concept to elicit responses. Firstly, we start with emails and then we elicit responses and then we publish to see - to generate discussions. Q. Dr Toben, you have published over and over again "Don't only blame the Jews, also blame those that bend to Jewish pressure" and you have described that as your maxim, haven't you? A. Indeed. Q. What is it that one should blame the Jews for, Dr Toben? A. I'm not here to expound on my views, your Honour. I'm here to respond to these imputations, these hurtful imputations. Q. Let us have your views. What is it that you say one should blame the Jews for? A. It is not my task here to open these matters because the focus is on these imputations. You are trying to draw or begin the Holocaust debate. This action doesn't go towards that. This is why it is a very complex matter. Q. I will ask you one more time. What is it that you say one should blame the Jews for? What have the Jews done, Dr Toben? A. We are not focussing, as I said again, we are not focussing on the beliefs that I have. My task here is to exonerate my reputation, to regain the reputation that I had without having these slanderous imputations brought into court. Q. I've asked you three times now, Dr Toben, to tell us if you would what is it that you blame the Jews for. Will you tell us? Will you let her Honour have your view about what the Jews have done? A. I cannot accept the way you phrase these things. HER HONOUR Q. Dr Toben, it has been put to you and you have accepted that is your maxim. You are asked what is the content of the maxim? What are you blaming the Jews for? A. We then talk about matters Holocaust, but I am not here to expound on my research or views on what the Holocaust is all about; therefore, I cannot go into that because I would be here all day. I can go on and on.
16. Dr Toben persistently emphasised his claim to be a philosopher. Speaking of a submission he made to the Commonwealth Attorney-General in respect of the retention of s 18C of the Racial Discrimination Act, Dr Toben said (T39-40): My submissions, your Honour, were not recorded neither to the Senate Commission nor to the Attorney‑General's. My submission was deleted. It was numbered but it said private or confidential. I don't know why. I went to great lengths to bring in a point of view about section 18C and it wasn't published so we published it, or at least I submitted it to the Adelaide Institute website and it was published. So the views expressed herein, they are there for a discussion. It is not a fixed one. With respect, you seem to want to nail me down to some kind of point of view that you can then say, oh, I'm like this and this. In philosophy you would go down because you don't do this in philosophy. And that's my discipline in philosophy. That we discuss and we doubt and we bring open. But your Honour, we touch taboo topics. Where people don't wish to go, I go there. Because that is part of the philosophical training I have had and the essence of philosophical training is asking horrible, often ugly questions about life.
17. A similar answer was given in respect of one of the newsletters of the Adelaide Institute (T43-4): Q. And you wrote under the heading Battle of the Wills on 16 April 2005 that "Demystifying the Jewish mindset that hates honesty and other civilising values which make up our world civilisation". This is the heading is it? A. Yes. Q. "Demystifying the Jewish mindset that hates honesty and other civilising values which make up our world civilisation"? A. Yes. Q. Your words, Dr Toben? A. Yes. Q. Yes. "The Jews. A parasitic mentality that sucks love out of people but then never develops into mature autarchy and hates the truth concept". Your words, Dr Toben? A. My words, but not my thoughts. Q. Your words? A. But not my thoughts. Q. No‑one else's thoughts, are they? A. Just go to the last line where I say "Let me hear your thoughts on this please". It's a speculative argument. I'm throwing out all the, the thoughts that swirl around this topic of demystifying the so‑called Jewish mindset. It's swirling around. And what's my last sentence? "Let me hear your thoughts on this". That's what a teacher does. He provokes, he throws out thoughts that are uncomfortable and in my case I dare touch taboo topics. Q. You dare because you believe it Dr Toben, don't you? A. That's your view, it is not my view. I, I would say as a philosopher I would be beyond any kind of negativity. My job is to bring out, and your Honour it was my job in teaching, to elicit from students their own thinking and then, when prejudices come through, you hop into them. You tell them look, there is another side to it. This is the battle of the wills. Don't scapegoat.
18. The cross-examination continued in that vein. Dr Toben's own writings (which to an objective reader might be thought to breach the orders of Branson J) were dismissed as "dialectic" (T45.29). Where he had published the words of others, they were characterised as "a quote that needs to be looked at and to be tested for truth content" (T46.37).
19. Mr Hmelnitsky's skilful cross-examination of Dr Toben has persuaded me that Dr Toben's claim merely to be engaged in philosophical discourse is cynical and disingenuous. It is a transparent rhetorical device in which Dr Toben's own anti-Semitic views are deliberately attributed to a straw man (or else characterised as mere asteroids in the universe of philosophical discussion) so as to enable Dr Toben to record views he plainly espouses on a pretended lawful basis.
20. The evidence has further persuaded me that Dr Toben's purpose in commencing this defamation action is to advance that pretence. Having regard to Dr Toben's own writings and his evidence in these proceedings, the suggestion that the proceedings are brought to vindicate his reputation against the imputations on which he sues is risible.
21. In my view, it is clear that his purpose in bringing the proceedings is not to vindicate his reputation against the false attribution that he denies an obvious truth but to use the proceedings as a forum for its disproof.
22. As recently as December 2014, Dr Toben has published material on his personal website questioning the history of the Holocaust. The content of the website appears under the banner of a series of photographs of Dr Toben in solemn pose with the words "Do I tell the truth or do I obey the law? Do both!".
23. The entry from December 2014 opens with photographs of Hitler receiving Christmas presents, juxtaposed with disturbing photographs depicting a pile of dead, emaciated bodies. It was put to Dr Toben by Mr Hmelnitsky that the photographs were taken after the liberation of the Buchenwald concentration camp and that they show Senator Barkley observing corpses piled at the concentration camp after the Germans left it. Dr Toben claimed not to know whether that was right, saying "I have nothing to do with this" (T54.20).
24. He accepted, however, that it was his website. Mr Hmelnitsky put that the website attributes Senator Barkley with the following thoughts (in a thought bubble): "They are starved German soldiers from the Eisenhower's Rein Medow death camps brought here. What a fake tattoo in the leg!"
25. The cross examination continued with the following exchange (at T54.33 to T55.9): Q. These are photos of emaciated corpses of Jewish inmates from a concentration camp which you here represent to be the very opposite? A. No, this is where you have to be careful. This is where you have to be careful. I am not familiar with this material. It is out there now being looked at. This is the point. You would, with your imputations, stop any investigation whether this is a fraud. We see so much fraud on the internet, so many falsifications. We see so much nonsense being produced and ascribed to so‑called experts. We have to look at this. That is why we must have that freedom to think and to speak openly about these taboo topics. You would like to close it down because it offends you. That is not good enough for me. That's not good enough for me. We have to have the freedom. If I may say, your Honour, I'm in contact with a student who does Holocaust studies. He disagrees with certain things and he is supposed to be sent to a psychiatrist because the teacher hated the disagreement, and he is supposed to now be suffering from depression. This is where we are going in education. It is a tragedy that this kind of matter cannot be openly discussed in open forum. HER HONOUR Q. Such as the Court? A. Such as the Court, but that is not the purpose of this action, your Honour, but they would like to make it that. I do not want to go into these things. I don't want to go into this. I go back to the false imputations made and that's what this case is on about because I've been falsely accused of being a Holocaust denier and anti-Semite and falsifier of history. It is massive. It is a death sentence in some respects.
26. Again, it must be emphasised that it is no part of this judgment to determine or assume the correctness of any proposition questioned by Dr Toben. The issue raised by the present application is whether Dr Toben brings these proceedings for an improper or collateral purpose.
27. The cross examination has persuaded me that the Court could not seriously entertain the notion that Dr Toben has the least interest in vindicating his reputation against the imputations he has specified. As noted by Mr Hmelnitsky, Dr Toben's own writings make that plain.
28. One of the imputations sued on in these proceedings is that Dr Toben spent time in prison in Australia and Germany for his Holocaust denial. Dr Toben's own book, Forty Days in Teheran, promotes itself on exactly that basis, as follows: "It is vitally important to get this report out and to support the author - formerly imprisoned in German for denying the Holocaust and now under fire in Australian courts for publishing his research on Auschwitz and other WWII prison work camps."
29. I have concluded that the proceedings are an abuse of the court's process and should be stayed. The defendants have established, to my satisfaction, that Dr Toben seeks by these proceedings to manipulate the process of the court to create a forum in which to assert the very views by the attribution with which he claims to have been defamed. Those are the very views his expression of which is otherwise prohibited by the orders of Branson J. That is a cynical misuse of the process of the court which must be stopped.

Proportionality

1. In light of that conclusion, it is not necessary to determine the Bleyer v Google issue. Had it been necessary to determine that issue, I would not have stayed the proceedings on that separate basis.
2. The basis for that aspect of the application is the contention that the cost of the proceedings (that is, the time, resources and money that will have to be expended to conduct them), is out of all proportion to the interest at stake.
3. The submission makes an assumption as to the value of the interest at stake which cannot be taken to be established at this stage of the proceedings. The plaintiff must be taken to have a prima facie case. Without determining that case on the merits, it cannot be assumed to be of little value. The circumstances are very different from those that obtained in Bleyer v Google. That was not a newspaper article case.
4. It is of concern that the plaintiff is an undischarged bankrupt but, had I not been persuaded that the proceedings are an abuse of process, the risk of injustice to the defendants on that account and the risk of disproportionate costs could have been addressed in different ways, by less draconian means.

Amendment application

1. In light of the conclusion I have reached, it is also not necessary to make any ruling as to Dr Toben's application to amend. Had it been necessary to give rulings on that issue, I am inclined to think that each of the proposed imputations is bad in form.
2. The proposed new imputations are: (l) The plaintiff has an explicitly racist anti-Jewish agenda that disentitles him from having social contact with any member of the Green Party. (m) The plaintiff's racist views were so extreme that if he had attended a fund raising event organised by the Greens he would have tarnished the great work done by the rest of the party. (n) The plaintiff held such extreme views on Jews and the Holocaust that he should not have been invited to a fund raiser for Gaza by David Shoebridge.
3. The first and third of those are rhetorical, asserting what should be the case rather than what is; the second is hypothetical. However, it is not clear to me whether Mr Evatt said all he wished to say on that topic. If I am wrong in my determination as to the abuse of process, it will be necessary to afford the plaintiff an opportunity to be heard as to the proposed new imputations.

Orders

1. For those reasons I order that the proceedings be permanently stayed.
2. It will be necessary to hear the parties as to costs.

Amendments 30 November 2015 - typographical errors at [8] and [82] 30 November 2015 - Grammatical correction to Coversheet 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: 30 November 2015