Toben v Nationwide News Pty Ltd

[2016] NSWCA 296

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Toben v Nationwide News Pty Ltd [2016] NSWCA 296

Hearing dates:

15 July 2016

Decision date:

04 November 2016

Before:

Meagher JA at [1];
Ward JA at [2];
Payne JA at [145]

Decision:

1.   Grant leave to appeal.
2.   Dismiss appeal with costs.

Catchwords:

APPEAL – application for leave to appeal from order permanently staying defamation proceedings as an abuse of process – where applicant seeks to sue on imputations including that he is a Holocaust denier and an anti-Semite – where applicant is restrained by Federal Court orders from publishing material that suggests that there is serious doubt that the Holocaust occurred – improper purpose – finding that applicant's purpose in bringing proceedings was not to vindicate his reputation but to express his views as to the Holocaust – whether this finding sufficient to sustain conclusion that proceedings were an abuse of process – whether primary judge failed to give adequate reasons for finding of improper purpose – whether primary judge erroneously made findings as to the truth of imputations

  APPEAL – whether denial of procedural fairness as a result of alleged failure to put truth or falsity of pleaded imputations to applicant – whether breach of rule in Browne v Dunn where applicant on notice of what respondents contended was his real purpose in bringing the proceedings

Legislation Cited:

Civil Procedure Act 2005 (NSW), Pt 6, ss 56, 60, 67
Defamation Act 2005 (NSW), s 33
Racial Discrimination Act 1975 (Cth), s 18C
Supreme Court Act 1970, s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(c), 14.28(1)(c)

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27
Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897
Browne v Dunn (1894) 6 R 67
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17
Dank v Whittaker (No 4) [2014] NSWSC 732
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Grizonic v Suttor [2008] NSWSC 914
Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619; [2010] NSWSC 924
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43
Jones v Toben [2002] FCA 1150
Jones v Toben (2009) 255 ALR 238; [2009] FCA 354
Land Securities Ltd v Fladgate Fielder [2009] EWCA Civ 1402
Meskanas v Capon (District Court (NSW), Christie DCJ, 28 September 1993, unrep)
O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315
Packer v Meagher [1984] 3 NSWLR 486
PNJ v The Queen (2009) 193 A Crim R 54; [2009] HCA 6
R v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Toben v Jones [2009] FCAFC 104
Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193
Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530
Toben v Milne [2014] NSWCA 49
Toben v Milne [2014] NSWCA 200
Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

JD Heydon, Cross on Evidence (10th ed, 2015, LexisNexis)
JG Fleming, The Law of Torts (9th ed, 1998, LBC Information Services)

Category:

Principal judgment

Parties:

Fredrick Toben (Appellant)
Nationwide News Pty Ltd (First Respondent)
Clive Mathieson (Second Respondent)
Christian Kerr (Third Respondent)
Senator Christine Milne (Fourth Respondent)

Representation:

Counsel:

 

CA Evatt with I Kirgiz (Appellant)
J Hmelnitsky SC with P Afshar (First, Second and Third Respondents)

  Solicitors:
Team Business & Property Law (Appellant)
Ashurst (First, Second and Third Respondents)
Baker & McKenzie (Fourth Respondent)

File Number(s):

2015/00372160

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 1784

Date of Decision:

30 November 2015

Before:

McCallum J

File Number(s):

2013/200157; 2013/200128

HEADNOTE

[This Headnote is not to be read as part of the judgment]

On 21 June 2013, Nationwide News Pty Ltd published an article concerning Dr Fredrick Toben in The Australian newspaper and online. The article concerned the withdrawal of an invitation that had been made to Dr Toben by a New South Wales Member of Parliament for Dr Toben to attend a political fundraising event. Dr Toben alleged that the article conveyed a number of defamatory imputations about him, including that he was a “Holocaust denier” and an anti-Semite.

Dr Toben commenced two sets of proceedings seeking damages for defamation: one, in relation to the newspaper article, was brought against the editor and the author of the article, Messrs Mathieson and Kerr, as well as Senator Christine Milne, to whom the article had attributed various comments; and the other, in relation to the online publication, against Nationwide News.

The News parties (the first, second and third respondents to the present appeal) successfully applied to have the defamation proceedings permanently stayed on the basis that they were an abuse of the court’s process. The defamation list judge considered it clear (from a review of publications by Dr Toben and his evidence on the stay application) that Dr Toben’s purpose in bringing the proceedings was not to vindicate his reputation but, rather, to use the proceedings to express his views as to the Holocaust.

Dr Toben sought leave to appeal from that decision. His position is that he denies the truth of all the alleged imputations. Dr Toben does not deny that there was a Nazi policy of systematically exterminating Jews and others in World War II but denies and seeks publicly to question the nature and extent of the Holocaust. He accepts that he wishes to use the proceedings as a forum to espouse his views but contends that this is not an improper purpose nor an abuse of the court’s process.

Held, granting leave to appeal and dismissing the appeal, by Ward JA (Meagher and Payne JJA agreeing at [1] and [145], respectively):

(1)   (at [46]) this is an appropriate case to grant leave to appeal since it raises an important issue of principle as to what constitutes an abuse of process such as to warrant a permanent stay of proceedings.

(2)   (at [56]-[57]) no House v R error (House v The King (1936) 55 CLR 499; [1936] HCA 40) has been demonstrated in relation to the decision of the primary judge to permit the cross-examination of Dr Toben, which was one clearly within her Honour’s discretion.

(3)   (at [59]; [62]) Dr Toben was well on notice, prior to the hearing of the application before the primary judge, of what the respondents contended was his real purpose in bringing the proceedings. In those circumstances, there can be no complaint as to a failure to comply with the rule in Browne v Dunn (1894) 6 R 67 or the lack of an opportunity to explain his position.

(4)   (at [69]-[70]) there is no merit to the complaint as to failure to give, or adequacy of, reasons for the primary judge’s findings of improper purpose. Her Honour referred to a number of Dr Toben’s publications, as well as to the cross-examination of Dr Toben, which clearly formed the basis for the conclusion she reached. It cannot have been necessary for her Honour to provide pinpoint references to Dr Toben’s writings.

(5)   (at [82]; [84]-[85]) the primary judge did not make any finding as to the truth of the “commonly understood” meaning of the Holocaust, nor did her Honour impermissibly apply her own knowledge or understanding of historical events or make any finding as to Dr Toben being a “Holocaust denier” or as to the truth of the imputations.

(6)   (at [103]; [110]) Dr Toben’s predominant purpose in the proceedings was not to vindicate his reputation or to achieve compensation/redress; it was, rather, to vindicate his belief in the true meaning of the Holocaust. That is the very thing that the Federal Court orders would preclude him from doing outside the court process and it is the collateral advantage of so doing that sustains the conclusion that the proceedings were an abuse of process.

(7)   (at [143]) (obiter) ultimately, the question of proportionality as between the cost of the proceedings and any interest Dr Toben had in vindicating his reputation, raised in the respondents’ notice of contention, was one for the primary judge to assess.

Judgment

1. MEAGHER JA: I agree with Ward JA.

2. WARD JA: This is an application by Dr Fredrick Toben for leave to appeal from a decision of the defamation list judge permanently staying defamation proceedings brought by him in respect of an article published in The Australian newspaper on 21 June 2013 and online, on the website “ on or about the same day (Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784). The primary judge acceded to an application by the first, second and third respondents (the News respondents) for such an order on the basis that the proceedings were an abuse of the court’s process ([105]).

3. Her Honour considered it clear that Dr Toben’s purpose in bringing the defamation proceedings was not to vindicate his reputation against the false attribution that he denies an obvious truth but, rather, to use the proceedings as a forum for its disproof ([97]). At [105], her Honour said:

… 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 [to which I will refer shortly]. That is a cynical misuse of the process of the court which must be stopped.

4. Dr Toben’s position, both before the primary judge and before this Court, is that he denies the truth of each of the alleged imputations. However, at least in relation to the imputation that he is a “Holocaust denier”, the question whether the imputation is false turns, from Dr Toben’s perspective, on what is meant by “the Holocaust”. Dr Toben does not deny that there was a Nazi policy of systematically exterminating Jews and others in World War II and in that sense of the expression he accepts that the Holocaust occurred. What he denies (or seeks publicly to question) is the nature and extent of the Holocaust (i.e., that six million Jews were murdered and that they were murdered through the use of homicidal gas chambers). Dr Toben’s stance is that he is an enquirer; not a denier: i.e., that he is a philosopher who simply poses questions as to the Holocaust, and other matters, for discussion or debate. He readily concedes that he wishes to use the defamation proceedings as a forum in which to espouse his views as to the matters the subject of the imputations but he contends that this is not an improper purpose, much less an abuse of the court’s process.

Background

5. Dr Toben was born in Germany in June 1944. He emigrated with his family to Australia in 1954. In the summary of argument filed for Dr Toben in these proceedings, Dr Toben is described as someone with “an interest in the holocaust”; a retired English teacher and life member of the Australian College of Educators (MACE); and a “holocaust scholar” (see [8]-[9]). In his affidavit sworn 29 October 2014 in the defamation proceedings (at [7]), Dr Toben deposes that in 1971 he returned to Germany to attend universities at Heidelberg, Stuttgart and Tubingen and that he graduated in 1977 with a Doctorate of Philosophy. His fields of interest in philosophy are described as the “falsification of scientific theories and the principles of fallabilisim” ([7]).

6. In October 2000, the Human Rights and Equal Opportunity Commission (HREOC) found that Dr Toben had engaged in unlawful conduct in contravention of s 18C of the Racial Discrimination Act 1975 (Cth) in relation to the publication of material that was racially vilificatory of Jewish people on the website of the Adelaide Institute, an institute that Dr Toben started in 1994 and that he managed from its inception until 2009 (see his affidavit at [11]; [14]). Dr Toben was ordered to remove the contents of the Adelaide Institute website from the internet and not to re-publish the content of that website in public elsewhere. He was also ordered to make a statement of apology in terms set out in the Inquiry Commissioner’s ruling.

7. An application was then made in the Federal Court of Australia to enforce the determinations made by HREOC. Branson J heard that application (Jones v Toben [2002] FCA 1150) and noted that, since the date of the determination of HREOC, considerable material of the same general character as that which was the subject of the complaint to HREOC had been published by Dr Toben both on the world wide web and in the form of newsletters ([112]). Branson J held that Dr Toben had acted unlawfully and made orders requiring the removal from the Adelaide Institute website and all other world wide web sites of the vilificatory material and any other material with substantially similar content or which conveyed any of a number of the imputations found to have been conveyed by that material. Her Honour also made an order restraining Dr Toben 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; 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 (WB 3/461).

8. Those orders are the orders to which reference is made in the primary judge’s reasons (at [105], as extracted at [3] above) and to which Dr Toben has referred as a ‘gag’ order (see [22] below). Dr Toben unsuccessfully brought an appeal from Branson J’s decision. In subsequent proceedings heard by Lander J (Jones v Toben (2009) 255 ALR 238; [2009] FCA 354), Dr Toben was found to be in contempt both of Branson J’s orders and of an undertaking he had given to Moore J in the Federal Court in late November 2007 that he would abide by those orders. His breach of the orders and non-compliance with the undertaking was found to be wilful and contumacious, amounting to a criminal contempt for which Dr Toben was sentenced in May 2009 by Lander J to three months’ imprisonment. Dr Toben’s appeal against the severity of that sentence was dismissed in August 2009 (Toben v Jones [2009] FCAFC 104). In his affidavit of 29 October 2014 sworn in the defamation proceedings the subject of the present appeal, Dr Toben has deposed to this period of imprisonment for contempt of court ([18]).

9. Pausing there, it follows from the above that there is no room for dispute that Dr Toben has spent time in prison in Australia for criminal contempt constituted by the publication of material found to have racially vilified the Jewish people and which conveyed imputations including that there was serious doubt that the Holocaust occurred. Nevertheless, in the defamation proceedings before the primary judge (and before this Court), he contends that the imputations conveyed in the matter complained of that he spent time in prison in Australia for anti-Semitic activities and for Holocaust denial are false. Similarly, although Dr Toben has deposed to having spent five months in prison in Germany in 1999 on a charge of an offence under s 130 of the German Criminal Code of “defaming the memory of the dead” (for which he says he was sentenced to 10 months’ imprisonment but released on payment of a sum of money – [21]), and though he wrote in the Adelaide Institute newsletter of April 2006 (No 282), of this event, that he was “worked over by the German judicial system at Mannheim” where he was sentenced for “daring to discuss and dispute matters concerning the ‘Holocaust’”, Dr Toben asserts that the imputations conveyed by the matter now complained of in relation to his time in prison in Germany are false.

10. Returning to the chronology of relevant events, Dr Toben brought defamation proceedings in the Federal Court against Mr Jeremy Jones, the complainant in the initial HREOC proceeding, about an article published on the internet after the above events, which Dr Toben contended had conveyed defamatory imputations about him, including that he was an anti-Semite and that the Shoah (Holocaust) was a mass fraud perpetrated on humanity. Yates J found that the pleading was deficient in a number of respects and should be struck out; but in any event stayed the proceedings permanently on the basis that they were an abuse of process (Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193). Dr Toben emphasises, correctly, in the present proceedings (see T 21.5) that the basis on which the Federal Court defamation proceedings were found to be an abuse of process was his Honour’s conclusion that 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 (see [56]-[57]).

11. It is against that background that I turn to the events giving rise to the commencement in 2013 of the defamation proceedings the subject of the present appeal.

12. In June 2013, an article was published in The Australian newspaper, under the headline “Split in Greens over Holocaust denier”, and on-line in similar terms but also naming Dr Toben in the headline. The article related to the withdrawal of an invitation that had been made to Dr Toben by a New South Wales Member of Parliament and member of the Greens political party (David Shoebridge MP) for Dr Toben to attend a political fundraising event. The article contained the following statements:

The Australian revealed yesterday Mr Shoebridge invited Dr Toben, who has served prison time in Australia and Germany for his Holocaust denial and anti-Semitic activities – to a fund-raising event for Gaza in April.

Mr Shoebridge said the invitation was rescinded when he became aware of Dr Toben’s extreme views. …

“The Australian Greens totally reject and condemn anti-Semitism … It is abhorrent. We condemn unreservedly Holocaust denials. It has no place anywhere in Australia society”, Senator Milne said. “The horrendous consequences of the Holocaust are still being felt around the world and I am appalled that people like Dr Toben engage in fabrication of history and … spread and engage in anti-Semitism.”

13. Dr Toben alleged that the article conveyed a number of defamatory imputations about him, namely that he: fabricated history about the Holocaust; is a Holocaust denier; is an anti-Semite; has a racist anti-Jewish agenda; spent time in prison in Australia and Germany for anti-Semitic activities; and spent time in prison in Australia and Germany for his Holocaust denial. He says that each of those imputations is false though, as adverted to earlier, in relation to the latter two imputations their falsity (or otherwise) would seem to turn from Dr Toben’s perspective upon the reason(s) for his imprisonment, not the fact of imprisonment in Australia and Germany as such (which he himself concedes occurred).

13. In July 2013, Dr Toben commenced two sets of proceedings in the Defamation List of the Supreme Court (2013/200128; 2013/200157) One, in relation to the newspaper article, was brought against the editor (Mr Mathieson) and a journalist (Mr Kerr) from The Australian as well as against Senator Milne, to whom the article attributed various comments that Dr Toben maintains are defamatory. The other, in relation to the online publication, was brought against Nationwide News Pty Ltd as the owner of the relevant website.

14. In both proceedings, Dr Toben sought damages for defamation, including aggravated damages, the latter being particularised as follows:

The plaintiff says his hurt and upset has been increased by his knowledge that the imputations are false.

thus, bringing squarely into issue in the proceedings the truth or falsity of the imputations. His solicitors made clear, in answer to a request for further and better particulars of Dr Toben’s claims for aggravated damages, that:

As there are no facts upon which the imputations can be found to be true, it necessarily follows that they are false. This has greatly increased his hurt and upset. (letter dated 5 August 2013)

16. An application by Senator Milne to strike out portions of the statement of claim was dealt with by the primary judge in Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530, her Honour there refusing leave to amend the pleading to include claims for damages for misleading or deceptive conduct and unconscionable conduct and striking out two of the pleaded imputations. From that judgment, Dr Toben was granted leave to appeal only in relation to the striking out of one of the imputations (Toben v Milne [2014] NSWCA 49). That appeal was subsequently dismissed, though Dr Toben was given leave to re-plead the relevant imputation (Toben v Milne [2014] NSWCA 200).

17. What then occurred was that the News respondents, by notices of motion each filed in the respective proceedings on 25 July 2014 – a year after the commencement of the proceedings and before any defences had been filed, sought orders that the proceedings be dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or, further and in the alternative, either that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or that Dr Toben’s pleadings be struck out pursuant to r 14.28(1)(c) of the UCPR.

18. The News respondents contended that Dr Toben’s purpose in pursuing the proceedings was not to vindicate his reputation but, rather, to use the court process as a forum in which to create a record of his beliefs concerning the Holocaust and about Jews. Alternatively, the News respondents contended that the determination of the issues raised by the pleadings would require an extensive inquiry into the events of World War II and that the costs and court resources that would have to be expended to determine those issues would be vastly disproportionate to the interest at stake in the proceedings, such that the proceedings should be dismissed in line with the principles expressed by the primary judge in Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897. Senator Milne did not join in the News respondents’ application but nevertheless supported their contention that the proceedings were an abuse of process.

19. At the time of the hearing of the News respondents’ respective notices of motion, a proposed consolidated statement of claim had been prepared for Dr Toben (apparently prepared following the primary judge’s decision in other proceedings – Dank v Whittaker (No 4) [2014] NSWSC 732 – see T 4/2/15 at 1). In that pleading, Mr Mathieson was no longer named as a defendant. It does not appear that any formal consolidation order was made in relation to the two sets of proceedings.

20. There was also on foot at that time an application by Dr Toben to amend the pleadings to include three additional imputations, namely that:

●   The Plaintiff has an explicitly racist anti-Jewish agenda that disentitles him from having social contact with any member of the Green Party.

●   The Plaintiff’s racist views were so extreme that if he had attended a fundraising event organised by the Greens he would have tarnished the great work done by the rest of the party.

●   The Plaintiff’s [sic] held such extreme views on Jews and the Holocaust that he should not have been invited to a fundraiser for Gaza by David Shoebridge.

(The primary judge considered the first and third of those to be rhetorical and the remaining one hypothetical. However, in any event her Honour found that it was not necessary to rule on the proposed amendments.)

21. Dr Toben’s position in relation to the stay application, as set out in his response to the submissions of the News respondents when the matter was before the primary judge, was that:

The Plaintiff has not denied there was a holocaust implemented by the Nazi regime mainly against Jews but also against communists, socialists, homosexuals, gypsies, the disabled and any other group or category to which the Nazis took objection.

The Plaintiff does not dispute there was a holocaust but among other things says the number of Jewish people murdered were fewer than 6 million, possibly as few as 1.8 million. …

Apart from questioning the extent of the holocaust Dr Toben questions the manner in which the victims were murdered.

22. Finally by way of background, I note that the News respondents adduced evidence before the primary judge to demonstrate that over the period from 2004 to 2007 Dr Toben had continued to publish material relating to the Holocaust in Adelaide Institute newsletters (including newsletters published in December 2004 and April 2006 and November 2007), referring variously to one of his personal aims from 1994 being to bring the “‘Holocaust’ issue” into the courts “where written record is then preserved for posterity” (December 2004 newsletter, No 231) and to Dr Toben operating under the Federal Court “Gag Order” (i.e., the orders made by Branson J) prohibiting him “from questioning/denying the three pillars on which the ‘Holocaust’ story/legend/myth rests” (April 2006 newsletter, No 282). They point to the extract in the decision of Lander J in 2009 to a comment by Dr Toben posted on the Adelaide Institute website in November 2007 that “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 claims made by any Holocaust survivor”.

23. The second of the newsletter publications referred to above, under the heading “The ‘Holocaust’ is a myth/lie” and stating that Dr Toben always prefaced his talks (in Iran) by a disclaimer that he was “merely reporting on matters that he was not permitted to state”, included the following:

Definition of ‘Holocaust’

During World War Two, 1939-45, Germany

1.   had an extermination policy against Jews.

2.   murdered six million Jews.

3.   the main murder weapon was a homicidal gas chamber, in particular at Auschwitz-Birkenau.

24. These, as explained in the course of the hearing in this Court are the “three pillars” to which reference is made in the second of the above newsletter publications, namely: first, that during World War II, Nazi Germany had an extermination policy against European Jewry; second, that six million Jews were murdered by the Nazis; and, third, that this involved the use of homicidal gas chambers. As indicated already, Dr Toben’s position is that he does not deny the first of those “pillars” but he denies (or, as a philosopher, disputes or questions) the second two (see T.38-46). He maintains that there is an issue as to what is the “commonly understood” meaning of the Holocaust.

25. The News respondents adduced evidence before her Honour that Dr Toben had published a number of statements in relation to the Holocaust in books or articles, including:

●   The urge for creature comforts invites civilised compromise – and to just let the truth slip into a ‘strong opinion’, and declare that perhaps the Jewish ‘Holocaust’ was merely exaggerated. No, I cannot do that. … I exclaim: The Jewish ‘Holocaust’ is a lie! … The perpetrators of the ‘Holocaust’ fraud know full well …(F Toben, Fight or Flight: The Personal Face of Revisionism, 2003, Peace Books, at xxi)

●   What is a ‘Holocaust denier’? How can you deny something that did not happen or did not happen in the manner claimed? (Fight or Flight: The Personal Face of Revisionism, at 99)

●   Well, fancy that, we in Australia have done away with honours but New Zealand still hands them out. However, the honour of a knighthood has been abandoned for the first time this year – there goes my hope I would have been known as ‘Sir Fredrick, the Holocaust denier’! (Fight or Flight: The Personal Face of Revisionism, at 285);

●   I certainly affirm that l am a Holocaust denier because I would rather be that than a Holocaust liar (Fight or Flight: The Personal Face of Revisionism, at 363);

●   “There Never was any Holocaust” (Fight or Flight: The Personal Face of Revisionism, heading to chapter 10, at 407);

●   When asked I openly stated that I refused to believe in the Holocaust (F Toben, 50 Days in Gaol: Dr Fredrick Toben’s Global Battle for Free Speech, 2009, Peace Books, at 24);

●   The Jews – A parasitic mentality that sucks love out of people but then never develops into mature autarky – and hates the truth concept (F Toben, Adelaide Institute Newsletter No 249 dated June 2005);

●   Australia’s own paranoid Jew, Jeremy Jones …intended to crow about the great success he had had with shutting me up by legally obtaining a court order that restrains me from discussing historical matters. He was also celebrating the fact that I had been worked over by the German judicial system at Mannheim where I was sentenced to 10 months prison for daring to discuss and dispute matters concerning the ‘Holocaust’ (F Toben, Adelaide Institute Newsletter No 282 dated April 2006);

●   I will state in court that I regard the Jewish Holocaust-Shoah a massive lie … Are court orders that prevent you from telling the truth to be obeyed? (F Toben, Adelaide Institute Newsletter No 396 dated July 2008); and

●   The fact that I was put in jail and someone said, ‘Now you can sue’, and I said, 'No, I’m not a Jew. I don't sue’ (F Toben, Arbeit Macht Frei: Impertinent Incarceration, 2010, Peace Books, at 41).

26. Relevantly, in the December 2004 Adelaide Institute Newsletter (No 231), Dr Toben posted the following to his associates and supporters:

From the very beginning of our enterprise in 1994 one of my personal aims was to bring the ‘Holocaust’ issue into the courts where a written record is then preserved for posterity. It does not matter whether such a court case results in a win or lose verdict, although the former is very much preferred, but rather that we are at the forefront in showing up massive injustices that hurt individuals and prevent them from gaining a full understanding of themselves, and of world events. (my emphasis)

… the post World War Two New World Order rests squarely on the “Holocaust” mythology.

There, Dr Toben also wrote that he assumed full responsibility for what appeared under the Adelaide Institute banner.

27. In his “Special Report on the Iran Holocaust Conference and its Aftermath”, entitled “40 Days in Teheran”, Dr Toben wrote of the “factuality of the actual “6 Million murdered” claim”; that it was simplistic; that the gassing claim “begins with a basic factual truth: Zyklon-B gas was used in concentration camps for disinfection purposes”; and that “From this fact the story begins to be exaggerated by recounting personal suffering of individuals – which is also a fact, ending in distortions and fabrications to outright lying”. He went on to write (at p 32):

All means are used to hold on to these lies, for example the current Revisionists before German courts cannot defend themselves because of the legal principle of “Offenkundigkeit – judicial notice”, whereby the actual physical issues are not canvassed and tested for truth-content in any trial. The “Holocaust” happened, and so matters do not have to be re-tested in court. In fact, doing such testing will merely prove that an accused is an “Uberzeugungstater” – a convinced perpetrator, and any verdict in favour of the accused would then set a precedent, which would have ramifications on those thousands of earlier successful prosecutions. The German legal system is indeed in a bind – and so now we witness it moving inexorably into decline as decisions become more abstract and absurd, all for the sake of upholding the “Holocaust” lies.

28. The News respondents further adduced evidence that, since the offending article was published in June 2013, Dr Toben had republished articles on his personal website containing similar statements to those set out in the matter complained of (including two articles from the Sydney Morning Herald, one entitled “George Brandis says Holocaust denier Fredrick Toben is ‘a nutcase’” (30 May 2014) and the other with the headings “Holocaust denier Fredrick Toben backs George Brandis’ plans for discrimination law” and “Race hate law Changes will challenge ‘Jewish supremacism’, historian says” (13 May 2014)); and that he has continued to publish the articles containing the matters complained of in these proceedings on the Adelaide Institute website.

Primary judgment

29. The application by the News respondents for a permanent stay or summary dismissal was heard by McCallum J in February 2015. For that hearing, Dr Toben had filed two sets of written submissions, one prepared by his counsel and one of which he was personally the author. At [34] of her reasons, the primary judge commented that the two sets of written submissions revealed a different understanding of the case as between Dr Toben and his counsel.

30. Her Honour noted that his counsel’s submissions put a narrow case, namely that: “the Holocaust” means “the systematic murder of Jews and others by the Nazis during the war”; that the term “Holocaust denier” means a person who denies that the Holocaust occurred; and that, as Dr Toben does not deny that an event described in those terms occurred, he is not a Holocaust denier and it is defamatory to say that he is. By contrast, the primary judge described the written submissions authored by Dr Toben (and his evidence on the application before her) as being a more subtle one ([35]), namely that “the Holocaust” means different things to different people. Her Honour noted that Dr Toben challenged the proposition that he was “not seeking to restore his reputation as a person who does not deny the Holocaust as that expression is commonly understood” (my emphasis) by challenging what was meant by the term “commonly understood”.

31. At [38], the primary judge noted that in his submissions Dr Toben explained that his approach would 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.

and thus not to offer his own view as to what happened during the war but only to review the changing narratives given by others.

32. Her Honour pointed to uncertainty as to the meaning of the term “the Holocaust”, as used in the imputations that Dr Toben alleges are conveyed by the matter complained of, as demonstrating that Dr Toben’s action rested “on a shifting premise” ([43]): namely, that 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 but 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 ([44]-[45]). In short, her Honour considered (at [46]) that, for different purposes, Dr Toben’s case both accepted and rejected “what he himself has identified as central tenets of the “commonly accepted” truth as to the Holocaust”.

33. At the hearing before the primary judge the evidence included various newsletters written by or attributed to Dr Toben on the Adelaide Institute website over the period from December 2004 to July 2014, as well as material published by Dr Toben on his personal website and extracts from other publications by him. Dr Toben filed two affidavits on the application and was cross-examined by Senior Counsel for the respondents on those affidavits. Accepting that this was unusual on such an application, her Honour permitted such cross-examination as a matter of fairness to all the parties but also to inform the proper exercise of the court’s power (and duty) to suppress any abuse of its process ([80]).

34. The primary judge set out (at [9] of her reasons) the abuse of process argument as set out in the outline of submissions filed for the News respondents 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 pursuing 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.

35. Her Honour considered that on the strength of Dr Toben’s own writings it was difficult to conclude otherwise than that Dr Toben had a clear agenda to create a public forum for disputation on the history of the Holocaust and for the expression of anti-Semitic views ([77]).

36. At [86], the primary judge recorded her 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.

37. At [95]-[97], her Honour went on to say:

… 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.

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.

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.

38. The primary judge was persuaded that Dr Toben did not have “the least interest” in vindicating his reputation against the imputations he had specified ([103]), pointing to Dr Toben’s own website and writings in that regard. Pausing there, the News respondents identify this as a critical finding reached by her Honour and one which, if not overturned, they contend is fatal to this application (see T 25.31-37).

39. Her Honour, having reached the conclusion (at [105]) to which I have already referred at [3] above that the proceedings were an abuse of process and should be stayed, did not find it necessary to determine the alternative basis on which the News respondents sought the stay (the proportionality issue) but in obiter indicated that had it been necessary to do so she would not have stayed the proceedings on that separate basis ([106]).

Present proceedings

40. Dr Toben seeks leave to appeal from the primary judge’s decision on the grounds set out in his draft notice of appeal (though with an amendment to ground 10 identified in the course of argument to delete a complaint that her Honour erred in finding that he intended to use the proceedings as a forum for his views – which he now accepts is what he wants to do), those being:

1.   Her Honour erred in staying the Appellant’s proceedings on the ground they were an abuse of process.

2.   Her Honour erred in ruling that in bringing the proceedings in the Common Law Division the Appellant had an improper purpose.

3.   Her Honour erred in failing to consider the necessity of establishing a predominant improper purpose rather than an improper purpose.

4.   Her Honour erred in failing to ensure that the principles of Browne v Dunn were applied.

5.   Her Honour erred in failing to give reasons in support of her adverse findings against the Applicant.

6.   Her Honour erred by failing to identify the specific matters which she found to be an improper motive.

7.   Her Honour denied the Appellant procedural fairness.

8.   Her Honour erred in allowing the Respondents to conduct a fishing expedition or mini-trial rather than an interlocutory application.

9.   Her Honour erred in not considering or ruling upon all imputations.

10.   Her Honour erred … in finding that using the proceedings as a forum for views was an improper purpose.

11.   Her Honour erred in finding the Appellant did not bring the common law proceedings to recover damages for vindication of reputation.

12.   Her Honour erred in finding the Appellant was a holocaust denier rather than a questioner or examiner of holocaust narratives.

13.   Her Honour erred in finding the Appellant was an anti-semite.

14.   Her Honour erred in finding that the Appellant’s proceedings in the Common Law Division were “a cynical misuse of the process of the Court which must be stopped”.

15.   Her Honour erred in not applying the principles of abuse of process as found by the High Court in Williams v Spautz (1992 174 CLR 509).

16.   Her Honour erred in failing to identify the parts of the Appellant’s previous statements and court cases which she found established the Appellant was a holocaust denier, a liar and hypocrite.

17.   Her Honour erred in effectively finding the imputations true.

41. Leave is necessary pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW) as the judgment, though having a dispositive effect on the outcome of the proceedings, is interlocutory in nature.

42. The News respondents maintain that Dr Toben has misapprehended the issue in the court below as to the reasons that the proceedings were stayed and argue that his complaint about a lack of procedural fairness is misconceived. They have filed a notice of contention in which they contend that the primary judge’s decision should be affirmed on the following ground:

Pursuant to section 67 of the Civil Procedure Act 2005 (NSW), McCallum J ought to have found, further and in the alternative, that the proceedings should be permanently stayed on the basis that the cost and expense of the proceedings will be disproportionate to any interest that the plaintiff has in vindicating his reputation, or seeking consolation or reparation for any damage to his reputation.

43. The fourth respondent, Senator Milne, supports the News respondents’ defence of Dr Toben’s application but has filed a submitting appearance save as to costs.

44. The application for leave to appeal was heard concurrently with the appeal itself, should such leave be granted. For the reasons that follow, I am of the view that leave to appeal should be granted but that the appeal should be dismissed with costs.

Leave

45. Dr Toben emphasises that, as recorded by the primary judge in her reasons at [24], the News respondents did not deny the existence of a prima facie cause of action for defamation nor did they suggest that the claim was amenable to summary dismissal. Somewhat emotively, he submits that the result of the primary judge’s stay of the proceedings is that he has become a “non-person” about whom any allegations may now be made with impunity by the media “since the Courts have denied him access to seek redress”.

46. Leaving aside the hyperbole of the “non-person” submission, I consider that this is an appropriate case in which to grant leave to appeal since it raises an important issue of principle as to what constitutes an abuse of process such as to warrant a permanent stay of proceedings. As I explain below, the facts of this case are not on all fours with those in the various cases in which this issue has previously been considered. For that reason, I would grant leave to appeal.

Structure of these reasons

47. As set out earlier, Dr Toben’s notice of appeal raises a number of grounds. No attempt was made by Dr Toben (either in the written summary of argument or in oral submissions) individually to address those grounds. Rather, Dr Toben’s summary of argument focussed on his complaints as to: a lack of procedural fairness ([28]-[36] of his summary of argument); lack of reasons for particular findings ([37]-[38]); the primary judge’s “finding” that the Holocaust as “commonly accepted” was an obvious truth ([39]-[49]); the conclusion reached by the primary judge as to improper purpose and hence as to abuse of process ([50]-[55A]); and the primary judge’s refusal to consider the new imputations which he had sought leave to add to the pleading ([56]-[57]). I will address the grounds of appeal under those headings, before considering the proportionality issue raised by the News respondents’ notice of contention.

48. At the outset, I note that it seemed to be accepted by both sides that the purposes for which a plaintiff properly brings a defamation action are generally said to be: first, the vindication of his or her reputation; second, to receive compensation for the damaged reputation; and, third, to provide consolation for hurt and distress caused by the publication (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 150; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31; Packer v Meagher [1984] 3 NSWLR 486 at 492). Dr Toben thus accepts that what the primary judge said at [44] of her reasons as to the purpose of defamation proceedings is correct. However, Dr Toben maintains that, in addition, a plaintiff in defamation proceedings has an entitlement to express his or her own views about the subject matter complained of.

Denial of procedural fairness – grounds 4, 7 and 8

49. Dr Toben’s complaint as to a denial of procedural fairness is, broadly, that it was not put squarely to him in cross-examination that his true purpose was, as her Honour ultimately found, not to vindicate his reputation but instead to express his views as to the Holocaust. Dr Toben complains that he did not have an opportunity to respond to that proposition. He says that the truth or falsity of the pleaded imputations was not put to him in cross-examination; nor were the “findings” which he says her Honour made.

50. Dr Toben refers in particular in this regard to statements made by the primary judge at [51], [77], [95], [96], [97] and [105], which he says were not put to him. The “findings” (listed at [32] of the summary of argument) to which Dr Toben refers are that he brought his claim:

1. to create a public forum for the disputation of the history of the Holocaust and the expression of anti-Semitic views ([77]);

2. to enable him to record views he plainly espouses on a pretended lawful basis ([95], [96]);

3. 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 ([97]); and

4. to manipulate the process of the court to create a forum in which to assert the very views of the attribution with which he claims to have been defamed ([105]).

51. Dr Toben argues that the failure to put those “findings” to him amounts to a failure on the part of the News respondents to adhere to the rule in Browne v Dunn (1894) 6 R 67 and that this led the primary judge erroneously to conclude (as he maintains on her reasoning she must have done) that he was a hypocrite and untruthful when asserting that the Holocaust denier imputation was false.

52. Pausing there, it is clear from a reading of her Honour’s reasons that the passage at [51] is simply a recitation of the News respondents’ central contention on their application, not a finding at all. However, nothing turns on this since her Honour did subsequently (at [77]) express the opinion that, on the strength of Dr Toben’s own writings, it was difficult to conclude otherwise than that Dr Toben had a “clear agenda” to create a public forum for the disputation of the history of the Holocaust and the expression of anti-Semitic views.

53. Complaint is also made that the primary judge did not identify the statements or the parts of the statements in Dr Toben’s earlier writings which led to her belief that Dr Toben was a Holocaust denier. Dr Toben submits that had the statements on which the primary judge or the News respondents’ counsel relied been put to him then he could have explained that “error”.

54. Dr Toben points to evidence he gave before the primary judge to the effect that there were “different narratives” about the Holocaust and that it was a contentious topic:

• at T 42.10, “We all know that it happened that the narrative is fluid. The narrative changes. This is where we focus, place our focus on”;

• at T 57.25-35, that there was no dispute that Jews were mistreated in concentration camps;

• at T 70.10; 70.15, that he did not deny the persecution of European Jewry nor that Germany had an extermination policy against them; and

• at T 73.30, that “there’s no dispute that the holocaust happened but we are questioning the extent, the nature of it. That’s what we are doing”;

and asserts that there was no cross-examination of him challenging those statements. He also points to evidence he gave to the effect that the Holocaust “was a systematic focus on Jewish individuals, not only Jews, others as well”, that it was “a catastrophe” (T 81.20); and that he was very critical of Jews but that this was different to being an anti-Semite (T 83.5); about which again he says he was not challenged.

55. Dr Toben further complains that her Honour permitted him to be cross-examined at all on the hearing of the News respondents’ application (ground 8).

56. Turning first to the last of those complaints (ground 8), the decision to permit cross-examination was one clearly within her Honour’s discretion. The News respondents say that the utility of the cross-examination, and the reason that leave was sought (and granted) to cross-examine Dr Toben (referring to what is recorded at T 28.7-26) was to challenge Dr Toben’s evidence as to his purpose in bringing the proceedings and to demonstrate that he could not be believed in that regard.

57. Her Honour gave cogent reasons for permitting the cross-examination. No error of principle or House v R error has been demonstrated by Dr Toben in relation to that decision (House v The King (1936) 55 CLR 499; [1936] HCA 40). It cannot be said that the primary judge in some way inverted the onus of proof. Rather, Dr Toben chose to adduce evidence as to his purpose in commencing and continuing the proceedings; and the News respondents were permitted to test that asserted purpose by cross-examination. There is no merit to ground 8 of the proposed grounds of appeal.

58. As to the remaining grounds under this heading, it is well recognised that the rule in Browne v Dunn is a rule of practice (see Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16), which in essence is a rule of fairness. Indeed in Browne v Dunn, Lord Herschell LC noted (at 71) that:

... Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

His Lordship made clear that he was not intending to lay down any “hard-and-fast” rule in this regard.

59. In the present case, Dr Toben was well on notice, prior to the hearing of the application before the primary judge, of what the News respondents contended was his real purpose in bringing the proceedings. They had made this clear both in a letter dated 27 May 2014 to Dr Toben’s legal representatives and in their written submissions served on 11 November 2014 in advance of the hearing of their application.

60. It is evident that Dr Toben appreciated that the News respondents would be asking her Honour to determine the issue as to his purpose in bringing the proceedings, since he swore an affidavit on 29 October 2014 in which he responded directly to the contention made by the News respondents as to his real purpose. In that affidavit, Dr Toben deposed that he was bringing the claim because the News respondents had damaged his reputation and caused him distress, upset and injury to feelings; and deposed that he sought vindication of himself and his reputation ([31]). He there admitted the Holocaust and denied casting doubt on its occurrence (a proposition that is untenable having regard to the publications in evidence, even if those publications were no more than “dialectic” or daring to “touch taboo topics” – as was the tenor of the evidence to which the primary judge referred in her reasons). He also denied using or attempting to use the court cases in which he was involved as a vehicle to expound his views ([17]).

61. The News respondents also point to Dr Toben’s submissions at the hearing before the primary judge as demonstrative of his understanding of their contentions and of the inference that the court was being asked to draw from his publicly available writings. Dr Toben’s submissions included statements to the effect that he did not seek to use the proceedings as “a platform for historical polemic” but was seeking retractions and compensation and he rejected the suggestion that he was seeking during the proceedings to present material “in a way that will undermine the Branson Orders” (see [1(b)] and [1.2] of the submissions authored by Dr Toben).

62. In those circumstances, Dr Toben’s complaint as to a failure to comply with the rule in Browne v Dunn or the lack of an opportunity to explain his position is, as the News respondents submit, unfounded. It is abundantly clear that, by the time of the hearing, Dr Toben well understood what was being contended by the News respondents as to there being an abuse of process, as well as the evidentiary basis for that contention. Nothing more was required in order to satisfy the requirements of Browne v Dunn (see Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224F-G per Glass JA; JD Heydon, Cross on Evidence (10th ed, 2015, LexisNexis) at [17445]).

63. That is sufficient to dispose of grounds 4 and 7. For completeness, however, I note that the News respondents also cavil with the proposition that Dr Toben was not challenged in cross-examination on matters going to his purpose in bringing the proceedings and as to the truth or falsity of the imputations. They point to the cross-examination of Dr Toben on his evidence that he accepted that the Holocaust occurred and that it involved a policy of systematic extermination of the Jews by the Nazis; including the question asked of Dr Toben (at T 76.46) as to him regarding the proceedings as being important to educate people about the Holocaust.

64. The News respondents also point to the cross-examination of Dr Toben as to the common theme of his publications claiming, amongst other things, that the “Holocaust is a lie” (T 46.13; T.59:40; T 68.30). They say that, in any event, Dr Toben had the opportunity to respond to and explain those statements, and did so. In those circumstances they submit that Dr Toben cannot now be heard to complain that he was denied procedural fairness. I agree.

65. These grounds are not made out.

Adequacy of reasons – grounds 5, 6 and 16

66. Complaint is made that the primary judge based her findings of improper purpose on Dr Toben’s “own writings and his evidence in these proceedings” ([96]), and on various court and tribunal judgments concerning him (there referring to statements extracted at [36], [38], [40], [48], [52], [57], [60], [61], [66], [83], [84], [86], [89], [90], [91], [92], [93], [100], [101] and [104] of the primary judgment), but that her Honour did so without giving reasons. The complaint seems to be that the primary judge did not identify those particular parts of Dr Toben’s writings or of his oral evidence on which she relied for the findings of improper purpose.

67. Dr Toben argues that, insofar as her Honour found that the “Holocaust denier” imputation was capable of being defamatory “only on the premise that it attributes Dr Toben with a discreditable denial of an obvious and important truth” ([44]), her Honour must be taken to have found that the Holocaust is an important truth and that his denial of such an obvious truth is discreditable.

68. Dr Toben submits that it was incumbent on her Honour to give reasons for her findings that he denied an obvious truth and that he intended to use the proceedings as a forum for its disproof; and that it was necessary for her Honour “to pinpoint” the passages of his writings and evidence on which she relied and give reasons as to how she came to the conclusions which led to the finding of improper or collateral purpose and abuse of process (at [95]-[97]).

69. There is no merit to the complaint as to failure to give, or adequacy of, reasons. Her Honour explained in some detail the “epistemological loop” identified by Senior Counsel for the News respondents in Dr Toben’s argument on the application before her and the shifting premise on which her Honour considered Dr Toben’s argument was based (see [28]-[36]). At [31]-[32], for example, her Honour said:

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.

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.

122. In those circumstances the primary judge did not err in concluding that the proceedings are an abuse of the court’s process and should be permanently stayed.

Additional imputations – ground 9

127. Dr Toben submits that the proposed new imputations were relevant since they were not directly connected to the Holocaust or anti-Semitism. In that regard, however, the first and third additional imputations refer to the Jews; the third to the Holocaust; and the second to racist views that in the context must relate to anti-Semitism. Dr Toben submits that her Honour’s reasons for rejecting his claim on the existing imputations could not apply to the cancelled invitation imputations and that, had they been allowed, then the proceedings would still be on foot.

128. The News respondents submit that the primary judge’s conclusions as to Dr Toben’s purpose would hold irrespective of the amendments but that in any event her Honour was correct when observing that the proposed additional imputations were either rhetorical or hypothetical; and that there is no utility in granting leave in relation to this ground of appeal.

129. I agree.

Notice of contention – proportionality issue

130. The News respondents rely on the notice of contention in the event that Dr Toben otherwise succeeds on his appeal grounds. In those circumstances it is not strictly necessary to deal with the issue raised in the notice of contention. However, for completeness, I note that the argument put forward by the notice of contention is that the orders made by the primary judge may be supported by s 67 of the Civil Procedure Act, on the basis that the cost and expense of the proceedings will be disproportionate to any interest Dr Toben has in vindicating his reputation, or seeking consolation or reparation for any damage to his reputation.

131. As already noted, the primary judge indicated that she would not have stayed the proceedings on the alternative basis argued by the News respondents, saying (at [108]) that their submission made an assumption as to the value of the interest at stake, which could not be taken to be established at this stage of the proceedings. In particular, her Honour considered that Dr Toben should be taken to have a prima facie case and that, without determining that case on the merits, it could not be assumed to be of little value.

132. The News respondents point to the overriding purpose of Part 6 of the Civil Procedure Act identified in s 56, and to s 60 of the Act, which they argue support the proposition stated by the primary judge in an earlier case (Bleyer v Google at [56]-[57]) that:

… Sections 56 and 60 should not be read disjunctively. Further, there is ample authority in this jurisdiction (for which no authority is needed in any event) that the just allocation of the infinite resources of the court is a relevant consideration in the exercise of the court's authority, at least in civil matters.

Once it is recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will be cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings.

133. The News respondents accept that a dismissal or stay of proceedings on the basis of a lack of proportionality alone will only rarely be justified (referring to what was said by Macfarlan JA in Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 at [44]) but they maintain that where the requisite disproportionality can be demonstrated it is appropriate to grant such relief (referring not only to Bleyer v Google but also to Grizonic v Suttor [2008] NSWSC 914).

134. In that regard, the News respondents point to the evidence before the primary judge as to their likely costs of conducting the proceedings (somewhere between $770,000 and $1,030,000 – see ([58] to [64] of the affidavit of Ben Raymond Teeger affirmed on 25 July 2014). They point to the fact that Dr Toben seeks to put truth in issue. They argue that Dr Toben’s evidence made clear that his approach to the litigation is to dispute what the Holocaust involved in major respects.

135. The News respondents submit that her Honour erred (at [108]) by stating that an assessment of the value of Dr Toben’s interest at stake was a matter of assumption, when there was evidence (including from Dr Toben) that made it possible to form a concluded view about the disproportionality between his interests at stake in the litigation and the costs and expenses involved in vindicating them. In that regard, they point to Dr Toben’s general disinterest in allegations that he is a Holocaust denier and argue that Dr Toben’s damages, if the imputations are not successfully defended, can only be nominal since he has repeatedly published and continues to publish material that is greatly more destructive of his reputation than anything published by the News respondents; and he has been ready to call himself a Holocaust denier.

136. They also argue that the finding by her Honour that Dr Toben had, as a significant purpose in bringing the proceedings, the wish to use the court as a forum to propound his views about the Holocaust and Jews (whether or not that be sufficient to amount to an abuse of process), is a relevant matter to take into account in weighing the interests at stake in the litigation.

137. Dr Toben’s response on the question of the News respondents’ likely costs of the proceedings is that the estimates provided in that regard were “self-serving” but that, in any event, if the News respondents’ submissions on this issue are correct this means that defamatory imputations “may be published with impunity if there is only a small number of recipients or if it would be too costly for the media to defend claims”. He argues that the costs evidence was “uncontradicted” only because the News respondents objected to cross-examination of Mr Teeger and the primary judge refused to allow it (T 5.20, 16.25). Complaint is made that Mr Teeger does not, in his affidavit, identify the two expert witnesses (or their field of speciality) that are anticipated and suggests that expert evidence of some matters may not be necessary given that he admits certain matters relating to the Holocaust. He raises issues as to other aspects of the costs estimate to which Mr Teeger deposed.

138. The News respondents in reply emphasise that Dr Toben did not lead any evidence to contradict the contents of the affidavits of Mr Teeger as to the likely costs of any final hearing in these proceedings. They argue that the cross-examination of Mr Teeger became unnecessary because no point was taken by them to Dr Toben’s submissions on that evidence (T 5.1) and questions concerning expert evidence was to be the subject of submissions (T 5.18). They point out that Dr Toben’s submissions concerning the figures set out in Mr Teeger’s affidavits were very limited (referring to T 104.14-23; [8] and [9]) and argue that to the extent that his submissions in this Court go beyond the limited matters raised before the primary judge, they should be rejected.

139. It is not necessary here to address those issues. On any view of things, the costs of defending proceedings in which truth is put in issue as to historical events in World War II can be assumed to be not inconsiderable.

140. As to the submission that, even if successful, he may be likely to recover only small or nominal damages, Dr Toben points out that there have been cases where only small damages were awarded but nevertheless the successful plaintiff was awarded legal costs (Meskanas v Capon (District Court (NSW), Christie DCJ, 28 September 1993, unrep); Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619; [2010] NSWSC 924). In any event he disputes the proposition that he might be awarded only nominal damages, pointing to the imputations that he fabricated history about the Holocaust and that he spent time in prison in Australia or Germany for anti-Semitic activities. He maintains that those imputations are false as he did not spend time in prison in Australia for his Holocaust denial. He also points to the additional imputations he had sought to raise.

141. Dr Toben further argues that the doctrine of proportionality giving rise to a stay of proceedings has to date been directed to circumstances where there was small publication. He challenges the primary judge’s reasoning or conclusion in Bleyer v Google at [57]. Dr Toben argues that Grizonic v Sutter was a case in which the proceedings had a lengthy history of in excess of 110 interlocutory adjudications and non-compliance with court directions; the plaintiff was no longer legally represented; the amount of final relief had been quantified; and the finding was that the probability of there being any surplus funds for the benefit of Mr Grizonic was slight and the utility of the proceedings “dubious in the extreme” (Brereton J at [63]).

142. Dr Toben also points to the defence of triviality in s 33 of the Defamation Act 2005 (NSW) and submits that if the News respondents’ submissions as to the triviality of his claim are correct they can rely on the triviality defence. He notes that in Bleyer v Google, McCallum J rejected the suggestion that the availability of the defence of triviality was inconsistent with the recognition of proportionality (at [58]-[59]). He argues that in that case her Honour found disproportionality was a species of abuse of process; and suggests in effect that a defendant who is permitted to rely on a proportionality argument after failing on a claim based on abuse of process is being permitted to have two attempts.

143. Ultimately, the question of proportionality was one for the primary judge to assess, balancing Dr Toben’s interest in these proceedings with the cost likely to be incurred. While reasonable minds might differ as to the assessment of proportionality in the present case, I am not persuaded that error in the House v R sense warranting appellate intervention has been established in the reasons her Honour gave for the view she expressed, in obiter, on this issue.

Conclusion

144. Leave to appeal should be granted and the appeal dismissed with costs.

145. PAYNE JA: I have had the privilege of reading the judgment of Ward JA in draft.  I agree with her Honour’s reasons and the orders she proposes.

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Decision last updated: 04 November 2016