Jones v Toben

Case [2002] FCA 1150


FEDERAL COURT OF AUSTRALIA

Jones v Toben [2002] FCA 1150

HUMAN RIGHTS AND DISCRIMINATION LAW – racial discrimination – racial vilification – proceedings to enforce determination of Human Rights and Equal Opportunity Commission – hearing de novo of original complaint – representative claim – necessity for class to be closed – entitlement of applicant alone to institute proceeding - whether Jews in Australia constitute a group of people with common “ethnic origin” – whether non-password protected website caused material to be ‘communicated to the public’ – meanings of the words offend, insult, humiliate, or intimidate – ordinary meaning –- whether publication of material on website reasonably likely to offend or intimidate Jews in Australia – objective test – real effects - whether “ethnic origin” one factor in the content of material on website

RACIAL VILIFICATION – applicable principles in determining whether material reasonably likely to offend, insult, humiliate or intimidate – principles of defamation – objective test - whether imputations would be conveyed to an ordinary reasonable reader

PRACTICE AND PROCEDURE – Federal Court Rules – summary judgment – repeated failure of respondent to file a defence – respondent unwilling to cooperate in bringing proceeding to trial

RELIEF – injunctions – utility of injunction to restrain Internet publication – whether apology or retraction should be ordered

WORDS AND PHRASES – “likely”, “offend, insult, humiliate or intimidate”, “because of”

Racial Discrimination Act 1975 (Cth) ss 18C, 18D, 22, 25L, 25Y, 25Z, 25ZC
Human Rights Legislation Amendment Act (No 1) 1999 (Cth) Part 2 ss 4‑22
Acts Interpretation Act 1901 (Cth) s 8(e)
Human Rights and Equal Opportunity Commission Act 1986 ss 46PQ, 46PR and 46PT
Federal Court Rules O 4 r 3(1)(b), O 10 r 7, O 11 r 23, O 19, O 20 r 1

Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 cited
Jones v Scully [2001] FCA 879 cited
Fisher v Rural Adjustment & Finance Corporation of Western Australia (1995) 57 FCR 1 referred to
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 cited
Citron v Zündel (No. 4) (2002), 41 C.H.R.R. D/274 (C.H.R.T.) referred to
Miller v Wertheim [2002] FCAFC 156 cited
Jones v Scully [2002] FCA 1080 cited and followed

Tilmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 followed
Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 cited and followed
Vincent v Peacock [1973] 1 NSWLR 466 at 468 referred to

The Macquarie Dictionary 2nd ed and The Oxford English Dictionary 2nd ed

JEREMY JONES v FREDRICK TOBEN

N 327 OF 2001

BRANSON J
17 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 327 of 2001

BETWEEN:

JEREMY JONES
APPLICANT

AND:

FREDRICK TOBEN
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

17 SEPTEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.It be declared that the respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by…

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Jones v Toben [2002] FCA 1150
Case
[2002] FCA 1150
Decision Date

CaseChat Overview and Summary

In Jones v Toben, the plaintiff, representing the Executive Council of Australian Jewry, sought a declaration that the defendant's conduct was unlawful under the Racial Discrimination Act 1975 (Cth) and an injunction preventing the defendant from publishing material on the internet that was alleged to be racist. The plaintiff claimed that the defendant, who operated the Adelaide Institute, had published content on its website that amounted to racial discrimination by denying the Holocaust and denigrating Jewish people. The case was heard in the Federal Court of Australia, where the primary judge was required to determine whether the plaintiff had established the necessary grounds for the requested relief.

The court had to address several legal issues, including whether the plaintiff had standing to bring the action and if the defendant's conduct indeed constituted racial discrimination under the Act. It was necessary to ascertain whether the plaintiff, as an individual and representative of the Executive Council of Australian Jewry, was sufficiently aggrieved by the defendant's actions to have standing. Additionally, the court needed to interpret the relevant sections of the Racial Discrimination Act to determine if the defendant's publications were indeed discriminatory.

The court found that the plaintiff had standing as both an individual and a representative of the Executive Council of Australian Jewry, given that he was directly affected by the defendant's actions. The court further concluded that the defendant's publications did amount to racial discrimination under the Act. It was established that the content in question was indeed published on the internet, fulfilling the criteria for public communication. The court held that the content conveyed serious doubt about the Holocaust, denied the existence of homicidal gas chambers, denigrated Jewish people who challenged Holocaust denial, and accused some Jewish people of exaggerating the number of Jews killed during World War II for improper purposes. These imputations were held to be discriminatory under the Act.

The court granted the plaintiff's claims, declaring that the defendant's conduct was unlawful under the Racial Discrimination Act and issuing an injunction against the defendant from publishing the impugned material. The court also ordered the defendant to remove existing content from the internet and restrained the defendant from republishing the material. The defendant was further ordered to pay the plaintiff's costs of the proceeding.

Orders

Orders of the court

1. It be declared that the respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by publishing to the public on the World Wide Web the document headed “About the Adelaide Institute” a true copy of which is part of annexure ‘PJW4’ to the affidavit of Peter John Wertheim sworn 29 March 2001 and filed in this proceeding (‘the document headed “About the Adelaide Institute”’).

2. The respondent:

(a) within seven days of the date of this order do all acts and things necessary to remove from the website http://www.adelaideinstitute.org and from all other World Wide Web websites the content of which is controlled by him or by the Adelaide Institute:

(i) the document headed “About the Adelaide Institute”;

(ii) any other material with substantially similar content to the document “About the Adelaide Institute”; 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.

3. The respondent be restrained, and is hereby restrained, 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 to the document “About the Adelaide Institute; 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.

This order is not intended to derogate from the time allowed by Order 2 hereof for the removal of material from World Wide Web websites controlled by the respondent or by the Adelaide Institute.

4. The respondent pay the applicant’s costs of the proceeding, including reserved costs if any.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I conclude that, provided the applicant has placed before the Court proof of the facts necessary to establish his entitlement to all or part of the relief claimed by him, the circumstances of this case warrant the exercise by the Court of the discretion given to it by O 10 r 7, and O 11 r 23, to grant summary judgment.THE APPLICANT’S CLAIM AND SUPPORTING EVIDENCE The applicant accepted that he was required to establish de novo the complaint made to HREOC on 31 May 1996. That is, he was required to provide proof that as at 31 May 1996 the respondent had engaged in conduct that was unlawful by reason of s 18C(1) of the RDA. Proof of later conduct of the respondent might well be relevant to the issue of the relief, if any, that the Court might think fit to grant (s 25ZC(2)) but will not of itself substantiate the relevant complaint. Paragraph 1 of the applicant’s statement of claim, which was filed on 5 November 2001, alleges:“The Applicant is, and at all relevant times was, a member of the Committee of Management of the Executive Council of Australian Jewry, and holds the position of Executive Vice‑President.” I accept that, as at the date of the original complaint addressed to the Race Discrimination Commissioner, the applicant held the position of Executive Vice Chairman of the Executive Council of Australian Jewry. The evidence establishes that on 2 December 2001 he was elected to the position of President of the Executive Council of Australian Jewry. I find that at all relevant times the applicant has been a member of the Committee of Management of the Executive Council of Australian Jewry. I am satisfied that the applicant was a person aggrieved by the act the subject of the letter of complaint dated 28 May 1996, namely the act of publishing the material referred to in the letter on the Adelaide Institute’s World Wide Web website (s 22(1)(a) of the RDA). I am further satisfied, as is mentioned above, that he was a complainant in respect of the complaint lodged with HREOC on 31 May 1996 and therefore entitled to commence this proceeding. Paragraph 2 of the statement of claim pleads that the respondent is, and has at all material times been, responsible for the actions of the unincorporated association known as the “Adelaide Institute” and for the placing of material on the Adelaide Institute website. Section 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”), in my view, renders proof of the nature of the Internet and the World Wide Web unnecessary for the purposes of this case. The general nature of both the Internet and the World Wide Web is now well known. The Canadian Human Rights Tribunal in Citron v Zündel (No. 4) (2002), 41 C.H.R.R. D/274 (C.H.R.T.) at [60] described the Internet as follows:“The Internet is a means of global communication that relies on a universal set of protocols or standards for the transmission of information. Two related sets of communication instructions, Transmission Control Protocol, (TCP) and Internet Protocol, (IP), govern how information will move through the system, defining addresses, routing systems, and all the regulation necessary to permit communication among users.”

Decision

Reasons for decision

BRANSON J

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Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

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