Jones v Toben

Case [2009] FCA 354

FEDERAL COURT OF AUSTRALIA

Jones v Toben [2009] FCA 354

CONTEMPT – disobedience of orders made in 2002 – undertakings made to the Court in 2007 to comply with 2002 orders – orders followed declaration that respondent had contravened Part IIA of the Racial Discrimination Act 1975 (Cth) – for publication of racially vilifactory material on World Wide Web – contempt proceedings must realistically be seen as criminal in nature – charge must be proved beyond reasonable doubt – whether respondent acted wilfully and contumaciously – whether orders were subject to statutory exemptions – orders ought to be understood as only preventing the respondent from doing something which is unlawful – orders also confirm that publication of relevant material was unlawful – whether preamble to Australian Citizenship Act 2007 (Cth) renders orders “nugatory” – respondent not deprived of any rights attaching to citizenship – orders required respondent to make a subjective assessment – whether orders vague, uncertain or imprecise – whether respondent provoked into breaching undertaking by applicant’s publication in media – orders and undertaking operated until varied or revoked and for all circumstances – whether appropriate to dispense with service in accordance with O 37 r 2(6) – publication of material proved beyond reasonable doubt – separate publications of material were wilful and contumacious contempt of court

EVIDENCE – admissions and declarations – applicant sought to tender parts of respondent’s affidavits that contained admissions – operation of s 135 of the Evidence Act 1995 (Cth) – affidavits tendered before contempt charges laid – respondent was unrepresented when affidavits filed – admissions likely to be unfairly prejudicial – tender rejected

PRACTICE AND PROCEDURE – contempt – where some charges previously heard and determined by reason of undertaking given in 2007 – no evidence the applicant reserved to himself the right to prosecute the proceedings for contempt if respondent breached undertaking – not possible to make those charges again

PRACTICE AND PROCEDURE – contempt – application for stay of charges on grounds they were inherently duplicitous – charges not duplicitous because they can be proved by more than one piece of evidence – charges reflected orders made in 2002 – contempt is in publishing on a particular day on the particular website material which conveys any of the imputations identified in orders – charge as drawn not embarrassing

PRACTICE AND PROCEDURE – interlocutory application – seeking suspension of operation and effect of orders and relief from undertaking – where undertaking was to comply with previous orders of the Court – where respondent tendered no evidence – application dismissed

Australian Citizenship Act 2007 (Cth)
Electoral Act 1918 (Cth)
Evidence Act 1995 (Cth)
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Racial Discrimination Act 1975 (Cth)
World Youth Day Act 2006 (NSW)
Federal Court Rules 1979 (Cth)
World Youth Day Regulation 2008 (NSW)

AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 applied
Attorney-General v Punch Ltd (2003) 1 All ER 289 referred to
Attorney-General v Times Newspapers [1974]…

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Details
AGLC
Jones v Toben [2009] FCA 354
Case
[2009] FCA 354
Decision Date

CaseChat Overview and Summary

In Jones v Toben, the primary issue before the court was whether Fredrick Toben had breached court orders that restrained him from publishing material denying the Holocaust. The case had a long history, including multiple previous decisions at first instance and on appeal, which restrained Toben from publishing material denying the Holocaust. Despite these orders, Toben continued to publish material denying the Holocaust, leading to proceedings for contempt of court. The court had to decide whether Toben's publications constituted a breach of the orders and whether he was in contempt of court.

The court found that Toben had indeed breached the court orders by continuing to publish material denying the Holocaust. The court held that Toben's publications were deliberately provocative and inflammatory, and that he made no effort to express his views with restraint. The court found that Toben's publications were in clear disobedience of the court orders and in breach of his undertaking given to the court. The court also found that Toben's publications were published with the deliberate intention to flout the orders, and that he was therefore in contempt of court.

The court made several orders, including that Toben had been guilty of wilful and contumacious contempt of court on seven separate occasions. The court also ordered that the September 2002 orders could be enforced by committal, notwithstanding that they had not been served in accordance with court rules. The court further declared that Toben had breached the court orders and was in contempt of court. The court made no order as to punishment, leaving that matter to be dealt with in a separate contempt proceeding.

Orders

Orders of the court

1. The document dated 19 February 2008 (which is set out in [45] of these reasons) be accepted for filing as a notice of motion.

2. The respondent’s notices of motion of 4 January 2008 and 19 February 2008 be dismissed.

3. Service of the orders made by Justice Branson on 17 September 2002 (the September 2002 orders) in accordance with O 37 r 2 of the Federal Court Rules 1979 (Cth) be dispensed with.

4. The September 2002 orders may be enforced by committal notwithstanding:

(a) that the September 2002 orders have not been served in accordance with O 37 r 2 of the Federal Court Rules 1979; and

(b) that the respondent has not been served with the September 2002 orders bearing the endorsement required by O 37 r 2(3).

5. The orders in paragraphs 3 and 4 hereof take effect from 16 November 2006.

6. Charges 1 to 4 of the Third Further Amended Statement of Charge be dismissed.

AND THE COURT DECLARES THAT:

7. The respondent has been guilty of wilful and contumacious contempt of court on:

(1) 7 December 2007; and

(2) 11 December 2007; and

(3) 24 April 2008; and

(4) 23 May 2008; and

(5) 20 June 2008; and

(6) 24 June 2008; and

(7) 25 June 2008;

by publishing on the World Wide Web to the public material:

(a) in disobedience of the September 2002 orders; and

(b) in breach of the undertaking given to Justice Moore on 27 November 2007.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LANDER J
In particular, Carr J (with whom Alsop J agreed) said in relation to the last matter (Toben v Jones (2003) 129 FCR 515 at [43]):In my opinion the contents of the document, taken as a whole, do not establish on the balance of probabilities that publication by the respondent of it was done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest.In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.In my opinion, the Document shows that the appellant made no such effort. On the contrary, the terms of the Document are, in my view, deliberately provocative and inflammatory. The reference to the Lenin and Stalin eras was, in my opinion, contrived to smear those on the receiving end of the appellant’s message. The appellant described the Jews as “also murderers”. This reference was made almost as an aside, clearly to paint the Jews in a bad light, before the author resumed his flamboyantly-worded challenge.I think that the primary judge was correct in finding that there was no proof of good faith. I would go further and hold that there is no proof that the publication was done reasonably or in good faith.The respondent’s publications after the Full Court decision and before 16 November 2006 Between the delivery of judgment by the Full Court and November 2006, the respondent published on the website a plethora of information which is contained in Exhibit “JJ1” to the applicant’s affidavit sworn on 1 November 2006 and which had been read by the applicant on 18 August 2006 and was subsequently re-read on 11 October 2007. I set out a summary of the applicant’s claims of breaches of the September 2002 orders occurring after those orders were made and before 16 November 2006:July 2003Attributes ulterior motives to what it describes as “Holocaust propaganda”. Refers to Diary of Anne Frank as one of “those self-serving Holocaust frauds”, to “Holocaust stories and myths”, and repeatedly to the “Holocaust lie”.September 2003 Attacks the decision of the Full Court and “extremist Jews” said to be currently “over-represented in politics, the media and the judiciary”, refers to “historical lies such as the drummed up six-million lies” and to the “filthy lie” of the “Holohoax”.9 October 2003 It contains repeated denials that the Holocaust ever happened accompanied by viciously racist and antisemitic statements.10-11 October 2003 It contains repeated denials that the Holocaust happened and says that the respondent is “pushing the limits of a Federal Court of Australia gag order, and pressuring the upholders of the Holocaust orthodoxy to admit they are living on [!] a lie”.3 January 2004 Refers to the “holocaust dogma of Judaism” being used to enslave Christian Germany and the rest of the world and as propaganda to achieve the creation of Israel and to get money by blackmail and extortion.February 2004 Refers to Holocaust museums and reparations claims as “just a gimmick to collect money”. Case proven that the holocaust was a hoax. There were no gas chambers.March 2004Refers to the “‘Hitler gas chamber legend’”, “the non-existent ‘Hitler gas chambers’” and Holocaust myths as propagated by Jews, the Soviets and others for ulterior purposes and describes the Jewish author of a book on Holocaust revisionism as a “Holocaust Pimp”. States “the holocaust is a lie”, that school education teaches “the lies of the holocaust” and refers to “the Auschwitz Lie”. The Germans had no gas chambers, no gas vans, and did not commit any inexcusable crimes. Revisionists understand that the holocaust did not happen.November 2005 Refers inter alia to “more Holocaust rubbish”, “‘Holocaust’ educational fraud program”, a “tsunami of lies” preventing discussion of Nazi extermination of Jews in homicidal gas chambers, the “Hoaxoco$t Blood Libel”, “the hoax of the century” etc and contains grossly antisemitic, racist and hate-filled material about Jews and the Holocaust.January 2005 A report in The Tehran Times on 29 December 2005 of an interview with him, which was still there on 24 April 2008 and 23 May 2008, containing inter alia the following:Fredrick Toben, the director of the Adelaide Institute in Australia, believes that Israel was created based on the Holocaust myth. On December 19, the Mehr News Agency conducted an interview with Toben to ask why Western countries were so outraged when Iranian President Mahmud Ahmadinejad called the Holocaust a myth. Following is the text of the interview:Q: The Iranian president said that he thinks that the Holocaust is a myth. However, he also said some European countries insist that millions of innocent Jews were killed during the Second World War by Hitler, and asked why the Europeans don’t give part of their land to the Jews if they are correct. What is your view?A: The Holocaust is a lie because none of its three main pillars on which it rests are factually true or proven.1. Germany – Hitler systematically exterminated European Jewry. There is simply no proof of this claim – it was a transfer of Jews, and together with Zionist collaboration, German Jews arrived in Palestine – with their property. Others were moved out of German territory – and Auschwitz was a transit camp.2. The killing was done in huge chemical slaughterhouses – homicidal gas chambers. This is a technical impossibility because you can work out how long it would take, for example, to kill one million people – the size of a city like Adelaide – without anyone finding out about it. The world soon found out President Bush lied about Iraq’s Weapons of Mass Destruction – that lie didn’t last even one year.3. Six million Jews were killed – this number is mythical/religious – and although at one time the numbers killed at Auschwitz was claimed to be 4 million, then reduced to 1-1.5 million, and now to around 500,000, the six million remains the same. Why?Anyone who questions these three points is imprisoned – and Revisionists must ask these questions if they wish to know the facts about the Holocaust story.February 2006 Refers to the Holocaust as the “alleged Holocaust of the Jews, a lie whose ravages, wrought for more than half a century now ... are a disaster that worsens from year to year”, a legend or myth, “a gigantic slander, blackmail and extortion operation”, an imposture for ulterior purposes, “dumb as doggy dodo Sixpackers”, “the hoaxaco$t fairytale”, “elite Jewry’s shakedown of the Swiss banks”, “Jews who expected some payout for their time spent at the Awshucks labour camp”, “embezzlers”, “the Auschwitz Lie”, “the holocaust fable” etc.2 March 2006 Contains antisemitic, racist material of the worst kind and is endorsed by the respondent with the banner and motto of the Adelaide Institute and a copyright-free notation at the end of it.March 2006Praises Ahmadinejad for his denial of the Holocaust and refers to the Holocaust as “a deliberately contrived falsehood” and a hoax with a Zionist provenance and motivation.March 2006Refers to the “Holocaust” lie and hoax propagated by the Jews for ulterior motives and out of hatred, made derogatory comments about the applicant, whom he referred to as “Australia’s own paranoid Jew”, referred to the Holocaust as a propaganda weapon to create world sympathy for Israel, said he was testing the limits of free speech, and stated that the Holocaust is a “myth/lie” and that Holocaust believers are either ignorant or liars.April 2006Says the myth of the Holocaust was used to create and defend Israel, the gas chambers never existed at Auschwitz or anywhere else, the Holocaust is an extraordinarily profitable lie and a swindle.16 November 2006 Notice of motion and supporting affidavit JJ1 filed commencing proceeding for contempt.The notice of motion of 16 November 2006

Ratio Decidendi

Legal Principle Established

Established by: LANDER J

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