Toben v Jones (No 2)

[2009] FCA 807

FEDERAL COURT OF AUSTRALIA

Toben v Jones (No 2) [2009] FCA 807

GERALD FREDERICK TOBEN v JEREMY JONES

SAD 69 of 2009
SAD 73 of 2009

SPENDER J
30 JULY 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 69 of 2009
SAD 73 of 2009

BETWEEN: GERALD FREDERICK TOBEN
Applicant

AND: JEREMY JONES
Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	30 JULY 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Notice of Motion seeking leave to submit a written brief as amicus curiae is dismissed.

2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 69 of 2009
SAD 73 of 2009

BETWEEN: GERALD FREDERICK TOBEN
Applicant

AND: JEREMY JONES
Respondent

JUDGE:	SPENDER J
DATE:	30 JULY 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. A Notice of Motion dated 3 July 2009 was presented to the South Australian District Registry of the Federal Court of Australia by Mary Maxwell seeking that leave be granted to her to submit a written amicus curiae brief in the above matter.  I have determined the application on the papers, after consulting Gilmour J who, with Graham J, make up the Full Court to hear the appeal.  I was not able to speak with Graham J, because of his Court commitments.

2. In respect of that application for leave, the affidavit by Dr Maxwell indicates that she has a PhD, is a widow, and a final year law student at the University of Adelaide.

3. Her affidavit indicates that she has not sought permission from the parties in this case, or informed them about her application for leave to appear as amicus, and she says she didn’t collaborate with anyone in the drafting or production of the material that she wants to put before the Court.

4. In respect of her request for leave, she refers to a statement that:

   A Court may grant leave to a friend of the court to participate in proceedings pursuant to the court’s inherent or implied power to ensure that it is properly informed of matters which it ought to take into account in reaching its decision.

5. Dr Maxwell says that the issues with which she proposes to deal concern “the need for schools and universities to continue to impart students the traditional rules governing scientific and historical research, and … the way in which a jail sentence for a scholar will chill free expression in Australia, mainly by engendering self-censorship”.

6. Notwithstanding the submissions by Dr Maxwell, I am clearly of the view that this is not a case where the court would be assisted by any submissions by Dr Maxwell that are not able to be put before the Court by the parties to the litigation. 

7. The material supplied in support of the Notice of Motion does not, on its face, appear to address the issues of the appeal.

8. Notwithstanding the good intentions of Dr Maxwell, I am of the view that leave to submit a written amicus curiae brief should not be granted.  The proposed brief, in truth, does not truly assist the Court in deciding the issues which it has to decide. 

9. The Notice of Motion seeking leave is dismissed.  There will be no order as to costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:    

Dated:       30 July 2009

Date of Hearing:	30 July 2009 (Heard on the Papers)
Date of Judgment:	30 July 2009