Toben v Milne

[2014] NSWCA 49

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Toben v Milne [2014] NSWCA 49

Hearing dates:

10 March 2014

Decision date:

10 March 2014

Before:

Macfarlan JA at [1];
Emmett JA at [9]

Decision:

(1) Leave to appeal granted in respect of McCallum J's decision to strike imputation (a) out of the Statement of Claim.

(2) Leave to appeal otherwise refused.

(3) Costs to be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - defamation proceedings - misleading and deceptive conduct claim sought to be added to statement of claim - leave to appeal refused except in relation to the striking out of one alleged imputation

Legislation Cited:

Australian Consumer Law (NSW), s 18

Cases Cited:

In re the Will of F B Gilbert (1946) 46 SR (NSW) 318

Category:

Procedural and other rulings

Parties:

Dr Fredrick Toben (Applicant)
Senator Christine Milne (Respondent)

Representation:

Counsel:
C A Evatt/R Rasmussen (Applicant)
R Potter/L Maher (Respondent)
Solicitors:
Carters Law Firm (Applicant)
FitzGerald and Browne Lawyers (Tasmania) (Respondent)

File Number(s):

CA 2013/334740

 Decision under appeal 

Jurisdiction:

9111

Citation:

Toben v Mathieson; Toben v Nationwide News Pty Limited [2013] NSWSC 1530

Date of Decision:

2013-10-18 00:00:00

Before:

McCallum J

File Number(s):

SC 2013/200128; 2013/200157

Judgment

1. MACFARLAN JA: This is an application for leave to appeal against a judgment of McCallum J dated 18 October 2013 ([2013] NSWSC 1530) given in proceedings brought by Dr Toben against Senator Milne and others. By her judgment, her Honour refused leave to Dr Toben to file an Amended Statement of Claim adding a claim of misleading and deceptive conduct under s 18(1) of the Australian Consumer Law. Her Honour also struck out two particulars of defamatory imputations contained in the existing Statement of Claim.

1. The basis of the first aspect of the decision was that the facts pleaded did not demonstrate that the alleged conduct occurred, as is necessary, "in trade or commerce". Her Honour held that Senator Milne's reported statements were political remarks not made in the conduct of any business, trade or profession carried on by her or by Dr Toben. In particular, she rejected Dr Toben's argument that because the remarks criticised his conduct as an historian, they were made in the course of his profession as an historian.

1. I do not consider that there are sufficient prospects of Dr Toben succeeding on an appeal on this point to warrant leave to appeal being granted. In my view her Honour's conclusion on the point was correct.

1. I agree also with the primary judge's decision to strike out the pleaded imputation that Dr Toben's "conduct in denying the holocaust is abhorrent and should be unreservedly condemned". As her Honour said "an imputation which merely states how the reader should react to a person without identifying any act or condition allegedly attributed to him or her should not stand" (Judgment [33]). As the imputation struck out was of this character except so far as it covered the same ground as the imputation that Dr Toben is a holocaust denier, leave to appeal against the decision on this point should be refused.

1. The other struck out imputation (imputation (a)) was that Dr Toben "fabricated history". This imputation was explicitly made in Senator Milne's reported remarks. Her Honour struck it out because it did not differ in substance from the imputation that Dr Toben is a holocaust denier which was also explicitly made in those remarks. Her Honour considered that bearing in mind the content of the remarks, "the only sense in which the [newspaper] article is capable of conveying any such meaning is in the sense that [Dr Toben's] denial of the holocaust amounted to a fabrication of history" (Judgment [31]).

1. Although the Court is reluctant to grant leave to appeal in matters of practice and procedure (In re the Will of F B Gilbert (1946) 46 SR (NSW) 318), I consider that there is sufficient doubt about the correctness of this view to warrant leave to appeal being granted.

1. Although leave to appeal is to be granted in this respect, I encourage the parties to reach an accommodation to obviate the need for a further hearing in this Court before the final hearing at first instance.

1. I propose the following orders:

(1)   Leave to appeal granted in respect of McCallum J's decision to strike imputation (a) out of the Statement of Claim.

(2)   Leave to appeal otherwise refused.

(3)   Costs to be costs in the appeal.

1. EMMETT JA: I agree with the orders proposed by Macfarlan JA for the reasons given by him. I simply add one observation: the mere fact that a statement is made about a person who is engaged in trade or commerce does not mean that the statement itself is conduct in trade or commerce.

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Amendments

11 March 2014 - Transcription error

Amended paragraphs: [9]

Decision last updated: 11 March 2014