Toben v Nationwide News Pty Ltd; Toben v Mathieson

In Toben v Nationwide News and Toben v Mathieson, the plaintiffs sought damages for defamation against the defendants, who had published statements to the effect that the plaintiff was a Holocaust denier and an anti-Semite. The plaintiffs were subject to orders of the Federal Court prohibiting them from publishing any material which suggested that there was serious doubt that the Holocaust occurred. The defendants applied to have the proceedings stayed or dismissed on the grounds of abuse of process. The central issues before the court were whether the proceedings amounted to an abuse of process and, if so, whether the court should stay the proceedings or dismiss them.

The court considered whether the defamation proceedings were an abuse of process in light of the Federal Court orders. The court held that the proceedings were not an abuse of process. It was noted that the orders did not prevent the plaintiffs from suing for defamation, but rather limited the publication of particular types of material. The court found that the orders were not intended to prevent the plaintiffs from seeking redress for defamation and, as such, the proceedings were not an abuse of process. The court also held that the orders did not constitute an immunity from prosecution for defamation.

Accordingly, the court dismissed the defendants' applications. It was found that the defamation proceedings were not an abuse of process and, therefore, the applications were dismissed.