Jones v Toben (Corrigendum dated 20 April 2009) [2009] FCA 354 (16 April 2009)

Last Updated: 22 April 2009

JONES v TOBEN

NSD 327 OF 2001

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court’s reasons is the judgment itself.

This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet www.fedcourt.gov.au.

Jones v Toben [2009] FCA 354

This is a summary of the reasons of Justice Lander delivered today for the orders and declaration made today.

On 17 September 2002 the Hon Justice Branson made a declaration and orders which had the effect of requiring the respondent, Dr Toben, deleting from a website which he controlled (the Adelaide Institute website) a document which was entitled “About the Adelaide Institute” and any further material which conveyed a number of imputations which offended, insulted or humiliated Jewish people for reason of their race.

Justice Branson’s orders restrained Dr Toben from further publishing information which conveyed the following imputations:

A. there is serious doubt that the Holocaust occurred;

B. it is unlikely that there were homicidal gas chambers 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.

On 16 November 2006 the applicant commenced a proceeding for contempt of court for the failure by Dr Toben to comply with her Honour’s orders.

The matter came before the Hon Justice Moore on 27 November 2007 when Dr Toben apologised to the Court for the contempt which he had committed. He also undertook to the Court to comply with the orders made by Justice Branson on 22 September 2002 and to delete offending material from the Adelaide Institute website.

Shortly after that hearing, Dr Toben advised the applicant and the judge’s associate that he would not continue to comply with the agreement which he had made with the applicant and the undertaking which he had given to the Court and he was stopping his action of removing the material which he had undertaken to remove from the website.

The applicant has brought further charges of contempt against Dr Toben in relation to Dr Toben’s conduct following upon the hearing before Justice Moore.

This proceeding concerned 28 charges of contempt, four of which were said to have been committed before the hearing before Justice Moore, and 24 of which were said to have been committed over a period of about 18 months after that hearing.

Justice Lander has found that all 24 charges relating to publications on the Adelaide Institute website after the hearing before Justice Moore have been proved beyond reasonable doubt. He has found that Dr Toben has on a number of occasions continued to publish the document “About the Adelaide Insitute” which Justice Branson ordered he delete from the Adelaide Institute website and restrained him from republishing. Justice Lander has also found that Dr Toben has published a number of statements which have conveyed the imputations which were the subject of her Honour’s orders.

Justice Lander has also found that in publishing the document “About the Adelaide Instituted” and in publishing the statements which convey the imputations, Dr Toben has also breached the undertaking which he gave to Justice Moore on 27 November 2007.

Justice Lander has found that the publications were both wilful and contumacious and has said:

1 I am satisfied beyond reasonable doubt that the separate publications on the Adelaide Institute website of the material which has established each of the charges which I have found proven were wilful and contumacious. The fact that the AI Document has appeared regularly on the Adelaide Institute website on each of the days accessed and can be accessed through a number of the Adelaide Institute newsletters is evidence of a wilful and contumacious disobedience of the September 2002 orders and the November 2007 undertaking.

2 Moreover, the number of statements which have been identified by the applicant in support of the charges giving rise to the imputations, in particular imputations 1 and 2 of the September 2002 orders which I have found proven on the various dates upon which the Adelaide Institute website was accessed, shows a wilful and contumacious disregard of the September 2002 orders and the November 2007 undertaking.

3 Dr Toben’s behaviour immediately following the 27 November 2007 hearing before Moore J and the article published in the Australian Jewish News of that hearing is further evidence of his wilful and contumacious disobedience of the September 2002 orders and the November 2007 undertaking. His correspondence with the applicant and Moore J’s associate is further evidence of contumacy. He said there that he was “withdrawing from the Consent Agreement and although I have begun deleting material from the website, as part of the undertaking given to the Court and to the Applicant, I am now stopping the action”. He was advised by his barrister to comply with the September 2002 orders and with the terms of the agreement but he replied:

There are now too many moral and legal principles at stake here, which a simple deletion of the material would merely further compromise, something I am not prepared to accept without having them clarified in open court.

4 His conduct at that time is one of publicly expressed deliberate and calculated disobedience to orders made by this Court and undertakings given to the Court.

5 Moreover, some of the publications themselves establish the contumacy of his conduct. Dr Toben has published material on a number of occasions which shows that he does not accept the underlying reasons for the September 2002 orders which were confirmed by the Full Court. He apparently does not accept that the applicant should be entitled to call in aid the Court to restrain him from publishing material which is vilifactory of the Jewish race by reason of their race. He is also not prepared to accept that the Court has made its decision that the publication of the AI Document and of material which conveys the imputations in the September 2002 orders is conduct which is rendered unlawful by a valid Act of the Parliament of the Commonwealth.

6 The Courts have held, but his conduct shows he does not accept, that the freedom of speech citizens of this country enjoy does not include the freedom to publish material calculated to offend, insult or humiliate or intimidate people because of their race, colour or national or ethnic origin. His conduct has been proved to be wilful and contumacious because he has steadfastly refused to comply with a law of the Commonwealth Parliament and refused to recognise the authority of this Court.

7 I am satisfied therefore that the applicant has proved that the conduct in publishing the information which was relied upon for proof of charges 5 to 28 was a wilful and contumacious contempt of court. It is conduct that amounts to criminal contempt.

The Court has adjourned the matter so that the parties can make submissions on the question of penalty.

FEDERAL COURT OF AUSTRALIA

Jones v Toben [2009] FCA 354

CORRIGENDUM

JEREMY JONES v FREDERICK TOBEN

NSD 327 of 2001

LANDER J

16 APRIL 2009 (CORRIGENDUM 20 APRIL 2009)

ADELAIDE (VIDEOLINK TO SYDNEY)

CORRIGENDUM

1. The first sentence of [295] of the reasons for judgment should read: “I am satisfied beyond reasonable doubt that the separate publications on the Adelaide Institute website of the material which has established each of the charges which I have found proven were wilful and contumacious”.
2. The appearances for the applicant’s counsel should read as follows:

Associate:

Dated: 20 April 2009

FEDERAL COURT OF AUSTRALIA

Jones v Toben [2009] FCA 354

CONTEMPT – disobedience of orders made in 2002 – undertakings made to the Court in 2007 to comply with 2002 orders – orders followed declaration that respondent had contravened Part IIA of the Racial Discrimination Act 1975 (Cth) – for publication of racially vilifactory material on World Wide Web – contempt proceedings must realistically be seen as criminal in nature – charge must be proved beyond reasonable doubt – whether respondent acted wilfully and contumaciously – whether orders were subject to statutory exemptions – orders ought to be understood as only preventing the respondent from doing something which is unlawful – orders also confirm that publication of relevant material was unlawful – whether preamble to Australian Citizenship Act 2007 (Cth) renders orders “nugatory” – respondent not deprived of any rights attaching to citizenship – orders required respondent to make a subjective assessment – whether orders vague, uncertain or imprecise – whether respondent provoked into breaching undertaking by applicant’s publication in media – orders and undertaking operated until varied or revoked and for all circumstances – whether appropriate to dispense with service in accordance with O 37 r 2(6) – publication of material proved beyond reasonable doubt – separate publications of material were wilful and contumacious contempt of court

EVIDENCE – admissions and declarations – applicant sought to tender parts of respondent’s affidavits that contained admissions – operation of s 135 of the Evidence Act 1995 (Cth) – affidavits tendered before contempt charges laid – respondent was unrepresented when affidavits filed – admissions likely to be unfairly prejudicial – tender rejected

PRACTICE AND PROCEDURE – contempt – where some charges previously heard and determined by reason of undertaking given in 2007 – no evidence the applicant reserved to himself the right to prosecute the proceedings for contempt if respondent breached undertaking – not possible to make those charges again

PRACTICE AND PROCEDURE – contempt – application for stay of charges on grounds they were inherently duplicitous – charges not duplicitous because they can be proved by more than one piece of evidence – charges reflected orders made in 2002 – contempt is in publishing on a particular day on the particular website material which conveys any of the imputations identified in orders – charge as drawn not embarrassing

PRACTICE AND PROCEDURE – interlocutory application – seeking suspension of operation and effect of orders and relief from undertaking – where undertaking was to comply with previous orders of the Court – where respondent tendered no evidence – application dismissed

Australian Citizenship Act 2007 (Cth)

Electoral Act 1918 (Cth)

Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth)

Judiciary Act 1903 (Cth)

Racial Discrimination Act 1975 (Cth)

World Youth Day Act 2006 (NSW)

Federal Court Rules 1979 (Cth)

World Youth Day Regulation 2008 (NSW)

AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 applied

Attorney-General v Punch Ltd (2003) 1 All ER 289 referred to

Attorney-General v Times Newspapers [1974] AC 273 cited

Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 applied

Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 cited

Biba Ltd v Stratford Investments Ltd [1973] Ch 281 cited

Citron v Zündel (No 4) (2002) 41 CHRR D/74 referred to

Evans v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576 distinguished

Fig Tree Developments Ltd v Australian Property Custodial Holdings [2008] FCA 1041 distinguished

ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 referred to

Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 cited

Longhurst v Hunt [2004] NSWCA 91 cited

Milburn v Newton Colliery (1908) 52 S.J. 317Roach v Electoral Commission (2007) 233 CLR 162 cited

Telstra Corporation Ltd v SingTel Optus Pty Ltd [2007] FCA 824 referred to

The King v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 applied

The King v Nicholls [1911] HCA 22; (1911) 12 CLR 280 cited

Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 referred to

Universal Music Australia Pty Ltd v Sharman Network Ltd [2006] FCAFC 41 cited

Wimpole v McIlwraith [1923] VicLawRp 68; [1923] VLR 553 applied

Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384; (1986) 19 FCR 110 cited

Witham v Holloway (1995) 183 CLR 525 applied

JEREMY JONES v FREDERICK TOBEN

NSD 327 of 2001

LANDER J

16 APRIL 2009

ADELAIDE (VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1. The document dated 19 February 2008 (which is set out in [45] of these reasons) be accepted for filing as a notice of motion.
2. The respondent’s notices of motion of 4 January 2008 and 19 February 2008 be dismissed.
3. Service of the orders made by Justice Branson on 17 September 2002 (the September 2002 orders) in accordance with O 37 r 2 of the Federal Court Rules 1979 (Cth) be dispensed with.
4. The September 2002 orders may be enforced by committal notwithstanding:

(a) that the September 2002 orders have not been served in accordance with O 37 r 2 of the Federal Court Rules 1979; and

(b) that the respondent has not been served with the September 2002 orders bearing the endorsement required by O 37 r 2(3).

5. The orders in paragraphs 3 and 4 hereof take effect from 16 November 2006.
6. Charges 1 to 4 of the Third Further Amended Statement of Charge be dismissed.
   
   

AND THE COURT DECLARES THAT:

7. The respondent has been guilty of wilful and contumacious contempt of court on:

(1) 7 December 2007; and

(2) 11 December 2007; and

(3) 24 April 2008; and

(4) 23 May 2008; and

(5) 20 June 2008; and

(6) 24 June 2008; and

(7) 25 June 2008;

by publishing on the World Wide Web to the public material:

(a) in disobedience of the September 2002 orders; and

(b) in breach of the undertaking given to Justice Moore on 27 November 2007.

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.

REASONS FOR JUDGMENT

Introduction

1. The applicant has brought a notice of motion seeking the punishment of the respondent for the contempt of court in disobeying orders of this Court and failing to honour undertakings given to the Court.
2. On 5 October 2000 on a reference from the Federal Race Discrimination Commission or to the Human Rights and Equal Opportunity Commission, the Inquiry Commissioner determined that the respondent had engaged in conduct rendered unlawful by s 18C of the Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) by publishing on a website material racially vilifactory of Jewish people and ordered the respondent to remove the website from the World Wide Web.
3. On 30 March 2001 the applicant brought a proceeding against the respondent, Dr Toben for a declaration that Dr Toben had engaged in conduct rendered unlawful by Part IIA s 18C of the Racial Discrimination Act by having published on the World Wide Web at websites collectively known as “The Adelaide Institute Website” material which was racially vilifactory of Jewish people. The applicant sought consequential orders in relation to the published material.
4. The application was supported by an affidavit of Peter John Wertheim who exhibited a document (PJW4) which was entitled “About the Adelaide Institute” (the AI Document).

The September 2002 orders

5. After a number of interlocutory hearings and an application for leave to appeal to the Full Court, the applicant applied to Branson J for summary judgment. She allowed the application. On 17 September 2002 she made the following declaration and orders (the September 2002 orders):
   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 ‘PJW-4’ 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 (etc – see orders attached);

(iii) any other material which conveys the following imputations or any of them –

1. there is serious doubt that the Holocaust occurred;
   
   
2. it is unlikely that there were homicidal gas chambers at Auschwitz;
   
   

100. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;
     
     

4. 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 pre-publishing to the public, by himself or by any other agent or employee, on the World Wide Web or otherwise:
   
   

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

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

(c) any other material which conveys the following imputations or any of them –

1. there is serious doubt that the Holocaust occurred;
   
   
2. it is unlikely that there were homicidal gas chambers at Auschwitz;
   
   

100. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;
     
     

4. 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.
   
   

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

Branson J’s reasons

6. Relevantly, her Honour found that the respondent controlled the Adelaide Institute and thereby was responsible for its actions, and for the material which was published on the Adelaide Institute’s websites. She found that the material contained in the AI Document conveyed the imputations which were the subject matters of the orders mentioned above. She found that publishing material on a website which is not password protected had the effect of communicating that information to the public. Such publication allows persons who access the website with a browser to view the material. Her Honour described how the material moves through the World Wide Web by relying on the description given in the Canadian Human Rights Tribunal in Citron v Zündel (No 4) (2002) 41 CHRR D/74 at [60]:

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.

7. Her Honour also relied on the Tribunal’s description of the World Wide Web at [67]:

The World Wide Web, (the “Web”), is a specific application that uses the Internet to send and display data, including text, graphics, audio and video. There are two active components on the Web: a server that stores and transmits information, and a client or browser that requests, receives and displays the information obtained from the server. A “web site” is a collection of computer files that are coded in a specific way ... to allow information to be sent on request to a browser. The files are then displayed in a way consistent with the instructions provided by the creator of the web site. Every web site has a unique Uniform Resource Locator (URL), akin to their Internet address. Once connected to the Internet, the URL ... is necessary to gain access to a given web site ...

8. Her Honour found that publication of the AI Document on the World Wide Web amounted to conduct which was rendered unlawful by the Racial Discrimination Act and made a declaration accordingly.
9. Her Honour found that the AI Document and other material published by the respondent on the World Wide Web conveyed the imputations in paragraph 2 of the September 2002 orders.
10. Her Honour found that the first and second imputations would engender feelings of hurt and pain within members of the Jewish Community who would, by reason of the publication, consider themselves being treated contemptuously, disrespectfully and offensively. She also found that the third and fourth imputations would offend, insult, hurt and wound members of the Jewish Community and engender the same senses.
11. The judge found that the publication of the AI Document was unlawful under s 18C of the Racial Discrimination Act and that it was published because of the ethnic origin of the people in the group identified in the document, namely Jews and it was an act reasonably likely to humiliate and intimidate Jewish people.
12. The judge found that the respondent had not established any exceptions under s 18D of the Racial Discrimination Act.
13. Her Honour made a permanent injunction restraining the respondent first, from publishing to the public on the World Wide Web the AI Document or any document with substantially similar content to that document; and secondly, from publishing any material which would convey the imputations which she had previously found to be unlawful.

The respondent’s reaction

14. The respondent appealed against the September 2002 orders.
15. The respondent deleted all material on the website within the time prescribed by paragraph 1 of her Honour’s orders. That action indicates an awareness of the September 2002 orders. However, some time before 23 September 2002, the material which was contained in the AI Document was again published on the same website.
16. On 14 December 2002 the respondent attended the 3rd International Historical Revisionism Conference in Italy and published further material on the website.
17. On 5 February 2003 the respondent entered the September 2002 orders. Initially the respondent argued that the sealed order now on file did not reflect her Honour’s reasons but that argument was abandoned.

The respondent’s appeal

18. On 22 April 2003 the respondent filed an amended notice of appeal against the September 2002 orders. The notice of appeal did not challenge the finding made by Branson J that publication of the material was conduct which was rendered unlawful by s 18C of the Racial Discrimination Act, being conduct which was reasonably likely in all the circumstances to offend, insult, humiliate and intimidate the groups or persons identified by her Honour.
19. Three matters were argued on the appeal. First, that Part IIA of the Racial Discrimination Act was unconstitutional. Secondly, the material which had been published on the website did not have a sufficient degree of causal connection with race, colour or national or ethnic origin as required by s 18C of the Racial Discrimination Act. Thirdly, the published material fell within the exemption to the provisions of Part IIA in s 18D.
20. In May 2003, at or about the time the matter was heard by the Full Court, the respondent published on the website “that the appeal would signal how strong the Jewish Zionist influence is in Australia’s judiciary where a battle rages between common law and talmudic law.”
21. The Full Court dismissed the respondent’s challenge to the validity of Part IIA of the Racial Discrimination Act. Carr and Kiefel JJ found that the provisions of Part IIA were supported by the external affairs power. Allsop J found that Part IIA, ss 18C and 18C(1)(b) “in its statutory context, are reasonably capable of being considered as appropriate and adopted to implement the obligations ... assumed by Australia” under the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 7 March 1966. The Full Court found that the AI Document was calculated to offend in itself those who maintain that the holocaust occurred and, in particular, Jewish people. It concluded at least one reason the AI Document was published was because of the race or ethnic origin of Jewish Australians. It found that the AI Document was deliberately provocative and inflammatory, and contrived to smear Jews. It rejected the respondent’s contention that he was entitled to an exemption by reason of s 18D(b) which provides that s 18C does not render unlawful anything said or done reasonably and in good faith in the course of any publication made for genuine academic or other genuine purpose in the public interest.
22. In particular, Carr J (with whom Alsop J agreed) said in relation to the last matter (Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 at [43]):

In my opinion the contents of the document, taken as a whole, do not establish on the balance of probabilities that publication by the respondent of it was done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest.

In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.

In my opinion, the Document shows that the appellant made no such effort. On the contrary, the terms of the Document are, in my view, deliberately provocative and inflammatory. The reference to the Lenin and Stalin eras was, in my opinion, contrived to smear those on the receiving end of the appellant’s message. The appellant described the Jews as “also murderers”. This reference was made almost as an aside, clearly to paint the Jews in a bad light, before the author resumed his flamboyantly-worded challenge.

I think that the primary judge was correct in finding that there was no proof of good faith. I would go further and hold that there is no proof that the publication was done reasonably or in good faith.

The respondent’s publications after the Full Court decision and before 16 November 2006

23. Between the delivery of judgment by the Full Court and November 2006, the respondent published on the website a plethora of information which is contained in Exhibit “JJ1” to the applicant’s affidavit sworn on 1 November 2006 and which had been read by the applicant on 18 August 2006 and was subsequently re-read on 11 October 2007.
24. I set out a summary of the applicant’s claims of breaches of the September 2002 orders occurring after those orders were made and before 16 November 2006:

July 2003 Attributes ulterior motives to what it describes as “Holocaust propaganda”. Refers to Diary of Anne Frank as one of “those self-serving Holocaust frauds”, to “Holocaust stories and myths”, and repeatedly to the “Holocaust lie”.

September 2003 Attacks the decision of the Full Court and “extremist Jews” said to be currently “over-represented in politics, the media and the judiciary”, refers to “historical lies such as the drummed up six-million lies” and to the “filthy lie” of the “Holohoax”.

9 October 2003 It contains repeated denials that the Holocaust ever happened accompanied by viciously racist and antisemitic statements.

10-11 October 2003 It contains repeated denials that the Holocaust happened and says that the respondent is “pushing the limits of a Federal Court of Australia gag order, and pressuring the upholders of the Holocaust orthodoxy to admit they are living on [!] a lie”.

3 January 2004 Refers to the “holocaust dogma of Judaism” being used to enslave Christian Germany and the rest of the world and as propaganda to achieve the creation of Israel and to get money by blackmail and extortion.

February 2004 Refers to Holocaust museums and reparations claims as “just a gimmick to collect money”. Case proven that the holocaust was a hoax. There were no gas chambers.

March 2004 Refers to the “‘Hitler gas chamber legend’”, “the non-existent ‘Hitler gas chambers’” and Holocaust myths as propagated by Jews, the Soviets and others for ulterior purposes and describes the Jewish author of a book on Holocaust revisionism as a “Holocaust Pimp”. States “the holocaust is a lie”, that school education teaches “the lies of the holocaust” and refers to “the Auschwitz Lie”. The Germans had no gas chambers, no gas vans, and did not commit any inexcusable crimes. Revisionists understand that the holocaust did not happen.

November 2005 Refers inter alia to “more Holocaust rubbish”, “‘Holocaust’ educational fraud program”, a “tsunami of lies” preventing discussion of Nazi extermination of Jews in homicidal gas chambers, the “Hoaxoco$t Blood Libel”, “the hoax of the century” etc and contains grossly antisemitic, racist and hate-filled material about Jews and the Holocaust.

January 2005 A report in The Tehran Times on 29 December 2005 of an interview with him, which was still there on 24 April 2008 and 23 May 2008, containing inter alia the following:

Fredrick Toben, the director of the Adelaide Institute in Australia, believes that Israel was created based on the Holocaust myth. On December 19, the Mehr News Agency conducted an interview with Toben to ask why Western countries were so outraged when Iranian President Mahmud Ahmadinejad called the Holocaust a myth. Following is the text of the interview:

Q: The Iranian president said that he thinks that the Holocaust is a myth. However, he also said some European countries insist that millions of innocent Jews were killed during the Second World War by Hitler, and asked why the Europeans don’t give part of their land to the Jews if they are correct. What is your view?

A: The Holocaust is a lie because none of its three main pillars on which it rests are factually true or proven.

1. Germany – Hitler systematically exterminated European Jewry. There is simply no proof of this claim – it was a transfer of Jews, and together with Zionist collaboration, German Jews arrived in Palestine – with their property. Others were moved out of German territory – and Auschwitz was a transit camp.

2. The killing was done in huge chemical slaughterhouses – homicidal gas chambers. This is a technical impossibility because you can work out how long it would take, for example, to kill one million people – the size of a city like Adelaide – without anyone finding out about it. The world soon found out President Bush lied about Iraq’s Weapons of Mass Destruction – that lie didn’t last even one year.

3. Six million Jews were killed – this number is mythical/religious – and although at one time the numbers killed at Auschwitz was claimed to be 4 million, then reduced to 1-1.5 million, and now to around 500,000, the six million remains the same. Why?

Anyone who questions these three points is imprisoned – and Revisionists must ask these questions if they wish to know the facts about the Holocaust story.

February 2006 Refers to the Holocaust as the “alleged Holocaust of the Jews, a lie whose ravages, wrought for more than half a century now ... are a disaster that worsens from year to year”, a legend or myth, “a gigantic slander, blackmail and extortion operation”, an imposture for ulterior purposes, “dumb as doggy dodo Sixpackers”, “the hoaxaco$t fairytale”, “elite Jewry’s shakedown of the Swiss banks”, “Jews who expected some payout for their time spent at the Awshucks labour camp”, “embezzlers”, “the Auschwitz Lie”, “the holocaust fable” etc.

2 March 2006 Contains antisemitic, racist material of the worst kind and is endorsed by the respondent with the banner and motto of the Adelaide Institute and a copyright-free notation at the end of it.

March 2006 Praises Ahmadinejad for his denial of the Holocaust and refers to the Holocaust as “a deliberately contrived falsehood” and a hoax with a Zionist provenance and motivation.

March 2006 Refers to the “Holocaust” lie and hoax propagated by the Jews for ulterior motives and out of hatred, made derogatory comments about the applicant, whom he referred to as “Australia’s own paranoid Jew”, referred to the Holocaust as a propaganda weapon to create world sympathy for Israel, said he was testing the limits of free speech, and stated that the Holocaust is a “myth/lie” and that Holocaust believers are either ignorant or liars.

April 2006 Says the myth of the Holocaust was used to create and defend Israel, the gas chambers never existed at Auschwitz or anywhere else, the Holocaust is an extraordinarily profitable lie and a swindle.

16 November 2006 Notice of motion and supporting affidavit JJ1 filed commencing proceeding for contempt.

The notice of motion of 16 November 2006

25. On 16 November 2006 the applicant filed a notice of motion seeking an order that Dr Toben be found guilty of contempt for failing to comply with the September 2002 orders made by Branson J claiming that Dr Toben had published or republished to the public material which infringed the orders made by her Honour. The applicant sought an order that “the respondent be punished for contempt including that the respondent be committed to imprisonment for disobedience of the said order of this Court and that a warrant be issued accordingly”. The notice of motion was accompanied by a Statement of Charge in conformity with O 40 r 5 of the Federal Court Rules 1979.
26. A Second Further Amended Statement of Charge was filed on 2 November 2007 which was the Statement of Charge under consideration when the matter came before Moore J. It was in the following terms:
    1. The respondent is guilty of contempt of the Court in that in wilful and/or contumacious disobedience of an order made by her Honour Justice Branson on 17 September 2002 (“Order”), the respondent published or republished to the public, by himself or by any agent or employee:
       
       

(a) On the World Wide Web material which conveyed the following imputations or any of them:

1. There is serious doubt that the Holocaust occurred (“Imputation A”);
   
   
2. It is unlikely that there were homicidal gas chambers at Auschwitz (“Imputation B”);
   
   

100. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence (“Imputation C”);
     
     

4. 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 (“Imputation D”).
   
   

(b) On the World Wide Web the document headed “About the Adelaide Institute”.

Particulars of Charge

1. The respondent did on 18 August 2006 and 11 October 2007 publish or republish to the public, by himself or by any agent or employee, on the World Wide Web at the website address specified in the third column of the Schedule annexed hereto and marked “A” (“the Schedule”), the material contained in the hypertext mark up language (htm) file named in the third column of the Schedule at the pages specified in the fourth column of the Schedule, (which material is reproduced in exhibit “JJ1” to the affidavit of Jeremy Jones sworn 1 November 2006). The said material, contrary to the Order, conveys the imputations as follows (row numbers are specified in column one of the Schedule):
   
   

(i) Imputation A: the material identified in rows 1 to 81 inclusive of the Schedule;

(ii) Imputation B: the material identified in rows 82 to 117 inclusive of the Schedule;

(iii) Imputation C: the material identified in rows 119 to 122 inclusive of the Schedule;

(iv) Imputation D: the material identified in rows 123 to 144 inclusive of the Schedule.

2. The respondent did publish or republish the document headed “About the Adelaide Institute” to the public, by himself or by any agent or employee, on the World Wide Web during or about August 2007, and again on 31 October 2007, as part of the Adelaide Institute Newsletter No 346 and on 31 October 2007 at the foot of the pages of the Newsletters/Archive sections on the said website for Newsletters 50-88 and 93-112 respectively.
   
   
27. Attached to that Second Further Amended Statement of Charge was Schedule A. Schedule A identified 144 separate statements of fact (sometimes in these reasons called “items”) which were said to have been published on the World Wide Web and to give rise to the four imputations identified in the September 2002 orders. The first imputation that “[t]here is no serious doubt that the Holocaust occurred” was said to arise out of statements of fact numbered 1-81. The second imputation that “[i]t is unlikely that there were homicidal gas chambers at Auschwitz” was said to arise out of the statements of fact numbered 81-117. The third imputation that “Jewish people who are offended by and challenge Holocaust denial are of limited intelligence” was said to arise out of statements of fact numbered 119-122. The fourth and last imputation “[s]ome Jewish people, for improper purposes (including financial gain) have exaggerated the number of Jews killed during WWII and the circumstances in which they were killed” is asserted to arise in statements of fact numbered 123-144.

The hearing before Moore J on 27 November 2007

28. On 27 November 2007 the notice of motion alleging contempt came on before Moore J. Mr Margo SC, who appeared for the applicant, informed the Court that the respondent wished to purge his contempt by agreeing to give undertakings to the Court and to the applicant to comply with the orders made by Branson J. The respondent was represented by counsel (pro bono) who said:

I do note, your Honour, simply in passing that there were, we say, some substantive arguments about the delay and some particularity of the statement of charge, and we would have argued some questions of the ambiguity of at least (a) and (b) of the orders, but Dr Toben nevertheless accepts the terms of the orders, but I wouldn’t want it to be said that this was necessarily a fait accompli from Dr Toben’s point of view, but he accepts that there are aspects of the material which clearly breach the orders and has agreed to comply by consent with the short minutes of order as set out.

29. The respondent apologised to the Court for his contempt of Branson J’s orders and gave an undertaking (the November 2007 undertaking) in the following terms:

MR TOBEN: I undertake to the court that I will comply henceforth with the orders of Branson J made in these proceedings. Further, to remove all files and material identified in the second further amendment (sic) statement of charge, the material from the Adelaide Institute website and from all other Worldwide websites, the content of which is controlled by myself or the Adelaide Institute by no later than 4 pm on 5 December 2007, and without limiting undertaking (a), not cause any of the material to be replaced on the Worldwide web.

HIS HONOUR: Thank you.

MR MARGO: Your Honour, I note that Dr Toben, I’m sure inadvertently, omitted to give those undertaking to the applicant.

HIS HONOUR: Can you give those undertakings to the applicant as well?

MR TOBEN: Of course. Of course I do.

HIS HONOUR: Well, I note both your apology, Mr Toben and the undertaking you’ve given and I also note the agreement between the parties in relation to costs which is embodied in paragraph 7. Having regard to both the apology and the undertaking I will make the orders that have been agreed between the parties, namely orders 1 through to 4.

The November 2007 orders

30. Justice Moore noted the respondent’s apology and undertaking, and made the following orders (the November 2007 orders):

By consent, the Court orders that:

1. Leave is granted to the applicant to rely on the Second Further Amended Statement of Charge filed on 3 November 2007 (sic).
   
   
2. The Notice of Motion is stood over until 28 February 2008, at 9.30am.
   
   
3. Liberty is reserved to the applicant to apply on 48 hours’ notice to re-list the Motion and in that event leave is granted to the applicant further to amend the Second Further Amended Statement of Charge to include any alleged contempt arising or discovered after the date of these orders.
   
   
4. Costs of the Motion are reserved subject to the agreement of the parties referred to in paragraph 7.
   
   

The November 2007 undertaking

31. The undertaking given by Dr Toben was noted by the Court in the November 2007 orders:
    5. The respondent’s apology to the Court for the contempt committed by him of the Orders of Branson J made in these proceedings.
       
       
    6. The respondent’s undertaking to the Court and the applicant:
       
       

(a) to comply henceforth with the Orders of Branson J made in these proceedings;

(b) further, to remove all files and material identified in the Second Further Amended Statement of Charge (“the Material”) from http://adelaideinstitute.org and from all other World Wide Web websites the content of which is controlled by him or the Adelaide Institute by no later than 4.00pm on 5 December 2007; and

(c) without limiting undertaking (a), not cause any of the Material to be replaced on the World Wide Web.

7. The Court notes the agreement of the parties that no application will be made for costs if and for so long as the Respondent complies with each of his said undertakings.
   
   

The respondent’s reaction

32. On the same day the respondent published on the website of the Adelaide Institute (www.adelaideinstitute.org):

THE TRIAL – DAY ONE: 27 November 2007

____________________________________________________________________

*On Monday, 26 November 2006, around 19:00 hours it was

agreed – essentially under duress? – by both parties that the

following Consent Orders would be submitted to His Honour

Justice M Moore.

*Counsel for Jeremy Jones, Mr Margo, waxed lyrically how

upon appeal Kiefel, Carr, Alsop JJ, had upheld Branson’s ruling

that the material caused great hurt to Jeremy Jones and Jewish

Australians.*****

*Justice Moore accepted the Orders and requested that Fredrick

Töben read out the undertaking as per below without

qualifications:

[The November 2007 orders were then reproduced including the matters noted by the Court.]

*****Fredrick Töben comments: 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 claim made by any Holocaust survivor. Now more than ever it is still possible to defame anyone with the Holocaust allegations – and get away with it because courts have sanctioned such defamation actions. A sad day for free expression, really – still, I shall attempt to comply for a fourth time with such orders.

[He then referred to correspondence he had with Goldberg J which is irrelevant to this application.]

The Australian Jewish News article

33. After 27 November 2007 and on or before 29 November 2007 Mr Lewis, the applicant’s solicitor, apparently spoke to the Australian Jewish News about the hearing before Moore J. The Australian Jewish News published an article:

Töben gives Holocaust denial apology in court

PETER KOHN

AJN NOVEMBER 29 2007

DR Fredrick Töben this week gave an apology in the Federal Court of Australia for being in contempt of court by continually featuring Holocaust denial material on his Adelaide Institute website.

He gave the apology during a contempt hearing of the Federal Court sitting in Adelaide on Tuesday.

After being called up to the bar by Justice Michael Moore to apologise if he agreed with it, Dr Töben began to give a qualified apology.

When Justice Moore said that his comments were inconsistent with an apology, Dr Töben gave a full apology, without embellishment and undertook to remove all Holocaust denial material from the website by 4pm on December 5 and not to replace it.

Solicitor Steven Lewis of legal firm Slater & Gordon said after the hearing: “It’s a significant victory for the community. The ECAJ was vindicated in their actions and has forced him to acknowledge his contempt of court and remove the offending material.”

The case was adjourned to February 28, when applicant Jeremy Jones of the ECAJ, represented by senior counsel Robin Margo SC, will have an opportunity to complain about any continuing breaches of the court orders.

When The AJN checked the Adelaide Institute website hours after the hearing ended, it still featured denial material as well as comments that apparently contradicted his unqualified court apology.

A summary of the hearing on the website referred to an apology being given “under duress?” which Lewis said he would take up with Dr Töben next week.

In 2002, the ECAJ won a landmark court case when a Federal Court judge ordered Dr Töben to remove all material denying the Holocaust from his Adelaide Institute website, an order he subsequently breached.

This week’s court hearing is the culmination of a 10-month battle that began when contempt orders were served on Dr Toben by the Federal Court, after he returned from a Holocaust denial conference in Iran in January.

http://www.ajn.com.au/news/news.asp?pgID=4542

The respondent threatens to withdraw from the consent agreement

34. On 30 November 2007 the respondent emailed the applicant’s solicitor a copy of which he sent to his barrister:

TÖBEN CONSIDERING WITHDRAWAL

FROM CONSENT AGREEMENT

Fredrick Töben comments:

Well, it’s on.

The article below clearly relies on an interpretation of what happened before Justice Michael Moore in the Federal Court of Australia on Tuesday, 27 November 2007 – an interpretation that was not explicitly nor implicitly canvassed before the Consent Agreement was written up.

If the below interpretation is consistent with the Consent Order, then I hereby publicly state I am withdrawing from the Consent Agreement, and although I have begun deleting material from the website, as part of the undertaking given to the Court and to the Applicant, I am now stopping this action.

I am awaiting advice and instructions from my Barrister Mr Paul Charman.

Fredrick Töben

Adelaide

12.15 hours

30 November 2007

35. The “article below” referred to in the email to the applicant’s solicitor was the article published in the Australian Jewish News. The account of his apology to Moore J and the email was, as can be seen, published on the Adelaide Institute website.
36. On the same day (12 minutes later), an email was sent to Moore J’s associate which was in the same terms as that sent to Mr Lewis.
37. On Sunday, 2 December 2007 the respondent emailed Moore J’s associate (again sending a copy to his barrister). He wrote:

Dear Associate Samantha Edwards

I would be pleased if you could forward this email to His Honour, Justice Michael Moore – and it is being copied to the Applicant’s Solicitor, Mr Steven Lewis, and to my Barrister, Mr Paul Charman.

===========

Dear Justice Moore

1. The below email from Google News Alert speaks for itself – the world has been informed of a deception – of my recanting my >Holocaust denial< belief per an apology to the FCA.
   
   
2. In an earlier email, Friday 30/11/2007 12:52 PM, I indicated to all parties that when I became aware of the 30 November 2007 article in the Australian Jewish News >Töben gives Holocaust denial apology in court<, I reluctantly ceased deleting the material as agreed upon in the Consent Order made by you at the 27 November 2007 hearing in Adelaide.
   
   
3. I agonized over the matter, especially because on the evening after the Consent Orders were made I had happily informed my former barrister, Mr David Perkins, Melbourne, that the matter had been settled without going to trial. He stated it was gratifying to see reason for once settling a dispute. Now Mr Lewis is quoted as stating in the news report that >The ECAJ was vindicated in their actions and has forced him to acknowledge his contempt of court and remove the offending material.<
   
   
4. I consider the contents of the AJN article and the comments made by Mr Lewis therein to be a breach of our Consent Orders, and thus serious and deceptive enough for me to respond by ceasing to delete the alleged offending material and re-submit the matter for Your Honour’s determination. I now also invoke the letter written by Mr Alan Goldberg QC, then Chairman Anti-Defamation Committee, ECAJ, to Mrs Joyce Steele, as featured in our Newsletter No 363 – http://www.adelaideinstitute.org/newsletters/n363.htm – and also presented in Affidavits in this matter before Your Honour.
   
   
5. I find myself unable to continue embracing the details of the Consent Agreement and I now request that I be permitted to bring this matter before you again and that there be a full trial where all matters can be canvassed so that I am accorded Natural Justice by responding to all 144 allegations and by relying on the material contained in all of my submitted Affidavits.
   
   
6. Since Friday lunch-time, 30 November 2007, I have not heard from Barrister Paul Charman and hence I am sending this email to you requesting your assistance.
   
   
7. On Monday, 3 December 2007 I will be travelling to visit my sick 85-year-old mother and so during the next two weeks I will not be able regularly to check my emails or other mail, and mobile phone reception is difficult in the country.
   
   

Fredrick Töben

Adelaide

Sunday, 2 December 2007

38. On 2 December 2007 the respondent’s counsel emailed Dr Toben advising him that he should comply with the September 2002 orders. He wrote:

My advice is that you should comply with the Orders of Branson J and with the terms of the agreement. It is important to note that your apology was to the Court for breaching an Order not an apology for your views as such. It is also important to note that the orders preclude from (sic) using the internet in the manner set out in the order, it does not preclude you voicing your views in any other forum although the Racial Discrimination Act would apply.

39. On 3 December 2007 the respondent responded to his barrister’s email and sent a copy of that email, and his barrister’s advice, to the applicant’s solicitor and Moore J’s associate. He wrote (inter alia):

1. Thank you for your email and I have noted your comments. Per this email I thank you for your pro bono work and now release you from any obligations you may have felt you still had towards me.

2. I was very pleased with your work and especially with the comments you made on my behalf to His Honour about the matter. The transcript will reveal quite clearly that you advised me correctly about accepting the Consent Agreement, something that the Applicant’s legal counsel subsequently dishonoured through their comments about the nature of the Consent Agreement to the media.

3. This fact has now brought the matter back to where I started. The published comments in the Australian Jewish News on 30 November 2007, and in the Weekend Australian of 1-2 December 2007 reveals how the Jewish lobby operates when defending its version of the Holocaust-Shoah, something that is so clearly highlighted in the Goldberg letter to Mrs Joyce Steele and in Mr Jeremy Jones’ 1991 article about Antisemitism in Australia. As you know I am reluctant to call this conspiratorial – it is a battle-of-the-wills – and it certainly highlights deception when one moves from a particular to a generalisation, using the latter abstract concept to defame a dissenting belief. This pattern of behaviour is not new and there are many examples that reveal how a legal process is thereby abused.

4. I have placed a notice on our website >>OWING TO A LEGAL DISPUTE THIS WEBSITE FROM 2 DECEMBER 2007 WILL CEASE TO BE UPDATED<<, which in effect freezes the material until further legal action eventuates. I have also ensured that no other person will be able to gain access to the website.

5. There are now too many moral and legal principles at stake here, which a simple deletion of the material would merely further compromise, something I am not prepared to accept without having them clarified in open court.

40. On 3 December 2007 the applicant’s solicitor wrote to the respondent requiring him to comply with the November 2007 undertaking.

The respondent’s notice of motion of 4 January 2008

41. On 4 January 2008 the respondent filed a notice of motion (dated 2 January 2008) seeking the suspension of paragraphs 5, 6 and 7 of the November 2007 orders and the suspension of the operation and effect of some or all of paragraph 3 of the said order. He also sought to be relieved from compliance with the undertaking contained in paragraph 6 of the order. It is not clear what the respondent was seeking in relation to paragraphs 5, 6 and 7 of the November 2007 orders which were matters the Court had noted, being his apology and his undertaking to comply with the September 2002 orders and the parties’ agreement as to costs, except that he apparently sought to be released from his undertaking. Paragraph 3 of the November 2007 orders was simply procedural. On 19 February 2008 the respondent filed two affidavits in support of that application.
42. The respondent’s notice of motion was heard at the same time as the applicant’s notice of motion for contempt.
43. In one of those affidavits the respondent referred to and exhibited the letter which Mr Alan Goldberg QC (as he then was) wrote in his capacity as Chairman of the Anti-Defamation Committee of the Executive Council of Australian Jewry to Mrs Joyce Steele MP, who was formerly the Minister for Education in South Australia. That is the same letter to which Dr Toben referred in his email to Moore J’s associate of 2 December 2007. In his affidavit Dr Toben states:
    2. On 18 February 2008, I received per email a letter from the Applicant’s solicitor wherein it is expressed that an Order for costs be made against me. I refer to Annexure “1” being a copy of this letter from solicitor for the Applicant, dated 18 February 2008.
       
       
    3. The application to be made for costs at the 28 February 2008 hearing exemplifies my case against the Applicant that this matter before the court is a political matter, that it is persecution through legal prosecution and thereby an abuse of process. The problem that initially gave rise to the action in 1996 still exists and is thereby not resolved in any way. I refer to Annexure “2” as being a copy of a letter Alan Goldberg, QC, now Justice Goldberg of the Federal Court of Australia, wrote to a former South Australian politician wherein the former Minister for Education, Mrs Joyce Steele, OBE, is threatened/blackmailed into Zionist Jewish submission. Needless to state that Mrs Steele did not bend to Jewish pressure.
       
       
44. It is impossible to understand how the letter could have any relevance to the issues before Branson J in September 2002 and Moore J in November 2007.

The respondent’s “notice of motion” of 19 February 2008

45. Dr Toben asserts that on 19 February 2008 he filed a further notice of motion in the following terms:

The above named Respondent will at 9:30 am on the 28th day of February 2008 at Law Courts Building, Queens Square, Sydney, NSW move the Court, for directions only, that the NOTICE OF MOTION of 2 January 2008 be augmented by this AMENDED NOTICE OF MOTION for Orders that:

1. The circumstances of the report ‘Toben gives Holocaust denial apology in Court’, in the Australian Jewish News, dated 30 November 2007, concerning Orders of 27 November 2007 be investigated by the Registrar of the Federal Court of Australia.

2. The Respondent be given Declaratory Relief in the following terms:

2.1 Although the Respondent has – bar a link to an article on another website – deleted per the 27 November 2007 Consent Order material from Adelaide Institute’s website, it be declared that the Respondent has unreservedly withdrawn his apology to the court on account of the Applicant attempting to use the court as a proxy to achieve his conspiratorial aim of imposing – without open debate – a Jewish Holocaust-Shoah world view on the Australian public, something that is contrary to Australia’s democratic tradition of being a pluralistic society because such a world-view would violate its moral compass by entrenching Jewish supremacism within the fabric of Australian society.

2.2 That it be declared this current legal action – begun in 1996 before the Human Rights and Equal Opportunity Commission-HREOC, then continued in 2001 in the Federal Court of Australia-FCA, and finally culminating on 5 December 2006 with the Applicant, Jeremy Jones, requesting that the Court order the arrest of the Respondent, Dr Fredrick Töben, for violating the FCA Court Order – is an abuse of process because it violates Australia’s democratic value system, and that Jeremy Jones and Members of the Executive Council of Australian Jewry apologize to the Australian public for committing such an intentional abuse.

2.3 That the Applicant, Mr Jeremy Jones and Members of the Executive Council of Australian Jewry, be declared obsessive and vexatious Holocaust-Shoah litigants who merely follow directly in the footsteps of their overseas co-conspirators, Dr Efraim Zuroff and Rabbis Cooper and Hier of the US-based Simon Weisenthal Centre, Los Angeles, in propagating what is for Germans and other truth-loving individuals a false, hurtful, hate-filled, offensive and racially motivated account of an historical event called the Holocaust-Shoah.

2.4 That it be declared that the Applicant’s use of the Holocaust-Shoah narrative serves to spread Zionist racist hatred and contempt against Germans and anyone of German descent, and anything to do with German culture and heritage.

2.5 That it be declared that if the Applicant and Members of the ECAJ initiates any future legal action wherein claims are made about the Holocaust-Shoah narrative, they be obliged scientifically to substantiate and quantify any such claims and subject such claims to a truth-test.

2.6 That it be declared that if the Applicant and Members of the ECAJ claim hurt feelings flowing from any alternate Jewish Holocaust-Shoah narrative that corrects the false factual nature of the Jeremy Jones, et al, propagated Jewish Holocaust-Shoah narrative, they be obliged to substantiate such hurt feelings per medical evidence, for example a psychiatric report of no less than four weeks old.

2.7 That it be declared that a singular/unique interpretation of the Jewish Holocaust-Shoah narrative is contrary to academic and scientific enquiry and is a mere political/dogmatic interpretation of an historical event, something that runs counter to Australia’s cherished concepts of freedom and democracy where a plurality of world-views co-exist without criminalizing one view or another.

2.8 That it be declared that a belief in the narrative – that during World War Two Germans systematically exterminated European Jewry in homicidal gas chambers – without subjecting that belief to forensic investigations, remains a mere belief, and that any attempt to enshrine it within Australia’s legal framework is contrary to Australia’s self-interest because it enables the racist Zionists in Australia to suppress free expression on any historical debate and to criminalise dissenting views and opinions.

2.9 That it be declared that the claim Germans exterminated six million Jews during World War Two, and the Auschwitz concentration camp death figure reduction – from four million to 1-1.5 million, and that this reduction does not influence the total of six million – is an irrational claim without empirical foundation.

2.10 That it be declared that in both Germany/Austria and Turkey legal measures have been implemented to prevent an open historical enquiry on a claimed historical massacre – in the former about the Jewish Holocaust-Shoah massacre and in the latter about the Armenian massacre.

2.10.1 That it be declared that to the question – cui bono? – it is Jewish interests that are legally protected by such legal censorship preventing investigation of an historical event, and that the Jewish Holocaust-Shoah guarantees a perpetual victimhood status of Jews while the Armenian Holocaust protects Jews from being regarded as perpetrators, which they were, and as they were in the 1917 Soviet Bolshevik Holocaust.

2.10.2 That it be declared that such legal protection of an historical event leads to legal persecution of individuals/dissidents who refuse to believe in the Zionist racist propagated version of historical events, something that is contrary to Australia’s understanding of human rights where freedom of expression is paramount if a belief in freedom and democracy is to be maintained, all of which is contrary to how Germany and Austria treat their dissidents, for example, legally persecuting/imprisoning and criminalising dissenters, such as Germar Rudolf and Ernst Zündel in Germany and Walter Fröhlich and Gerd Honsik in Austria, only because they refuse to believe in the Zionist Jewish version of the historical event called the Jewish Holocaust-Shoah.

3. There be such further or other Order as the Court may consider appropriate.

46. The Court has no record that the notice of motion was filed. Although the applicant’s solicitors were later given a copy (probably at the hearing), they say they have never been served with a sealed copy. The document which has been provided to the Court is unsealed. I direct that the document provided to the Court be accepted for filing. No submissions were made by the respondent’s counsel in support of the “notice of motion”. That “notice of motion” was also heard at the same time as the respondent’s notice of motion of 4 January 2008 and the applicant’s notice of motion for contempt.

The respondent’s notices of motion are dismissed

47. It would be convenient to deal with the respondent’s notice of motion of 4 January 2008 and the respondent’s “notice of motion” of 19 February 2008 at this point.
48. The respondent, as I have said, tendered no evidence. He was entitled, of course, to rely on any evidence tendered by the applicant which supported his case. No evidence of that class was identified. However, it may be assumed that the respondent “withdrew” his apology and sought the orders in the notice of motion of 4 January 2008 as a response to the applicant’s solicitor Mr Lewis’ comments to the Australian Jewish News. Assuming that to be the case, however, whatever was said by Mr Lewis or reported by the Australian Jewish News would not entitle Dr Toben to disobey the September 2002 orders or fail to honour the November 2007 undertaking.
49. Dr Toben’s notice of motion of 4 January 2008 seeks the suspension of paragraphs 5, 6 and 7 of the November 2007 orders. Those paragraphs which the notice of motion addresses are not orders of the Court. They are matters the Court has noted has happened. First, that Dr Toben has apologised; secondly, that he has given an undertaking noted in paragraph 6; and thirdly, that the applicant will not seek costs so long as the respondent complies with his undertaking. None of those matters can be “wholly suspended” or “suspended”. Paragraph 1 of the notice of motion is dismissed. Paragraph 3 of the November 2007 orders is mechanical and the order sought in paragraph 2 of the notice of motion is unnecessary. The other orders are also procedural and the order sought in paragraph 4 is also unnecessary. Paragraphs 2 and 4 of the notice of motion are also dismissed.
50. The matter of substance is that contained in paragraph 3 of the notice of motion. The respondent seeks to be relieved of the undertaking given in November 2007. That application, however, must be dismissed. First, because the respondent has not adduced any evidence or advanced any reason for making the order. It is not suggested that the undertaking which was given was not fully informed. The respondent was represented. He knew the substance of his undertaking. He gave it freely and voluntarily. It was given after negotiation between the parties and partly, I suspect, in exchange for paragraph 4 of the November 2007 orders. But there is a better reason to refuse this application. The September 2002 orders will stand whatever the result of this application. That being so, Dr Toben will have to comply with those orders. The undertaking given in paragraph 6(a) of the notes to the November 2007 orders is something that Dr Toben is obliged to do in any event. The further undertakings in paragraph 6 were given in order that Dr Toben could comply with the undertaking in paragraph 6(a) and the September 2002 orders. It would be inappropriate to release Dr Toben from his undertakings in case it be thought that he could thereafter disobey the September 2002 orders. The respondent’s notice of motion of 4 January 2008 is dismissed.
51. I do not intend to address the “notice of motion” which seeks an order and declarations which are mainly not within the jurisdiction of this Court to make and which, in any event, are not relevant to the notice of motion seeking the respondent’s punishment for contempt in any detail.
52. The order which is sought in paragraph 1 would not be made and the declarations sought in paragraphs 2.2 to 2.4 could not possibly be made in a proceeding in which the applicant succeeded both at trial and on appeal. The other declarations which are sought seem to raise the question whether the Holocaust occurred. That is simply not an issue for the contempt proceeding. The contempt proceeding does not require the Court to inquire into Dr Toben’s claims that the Holocaust did not occur. The September 2002 declaration and orders are the starting point for the question of the contempt proceedings.
53. A further and compelling reason for not dealing with the notice of motion is that the respondent offered no evidence in support of the notice of motion. For those reasons, the “notice of motion” of 19 February 2008 is dismissed.

The course of this proceeding

54. On 28 April 2008 the applicant, pursuant to the liberty given in paragraph 3 of the November 2007 orders, filed an Amended Statement of Charge claiming that the respondent was guilty of contempt for wilful and/or contumacious disobedience of the September 2002 orders and for contempt for breaching the November 2007 undertaking.
55. Both parties filed a number of affidavits. On 11 June 2008 the matter came on before me for directions and for the setting of a date for trial.
56. At the directions hearing on 11 June 2008 the respondent sought leave to issue a subpoena directed to The Honourable Justice Goldberg for the purpose of establishing on this hearing that The Hon Justice Goldberg had written the letter to Mrs Joyce Steele in 1984. As already observed, it is patently obvious that any communication that The Hon Justice Goldberg had with Mrs Joyce Steele in 1985 could not be relevant in determining whether the respondent has complied or not complied with the September 2002 orders or the November 2007 undertaking. I refused the request for leave to issue the subpoena.
57. On 11 June 2008 I made the following orders:

Applicant’s further material in chief

1. Direct that by 4.00pm Sydney time on 27 June 2008 the applicant file and serve an amended notice of motion and any further material on which he wishes to be entitled to rely in chief at the hearing.

Further amended Statement of Charge

2. Note that:

(a) By consent order 3 on 27 November 2007 liberty was reserved to the applicant further to amend the Second Further Amended Statement of Charge to include any alleged contempt arising or discovered after 27 November 2007 and before hearing of the matter should it be relisted;

(b) In anticipation of the hearing then fixed for 3 June 2008, an Amended Statement of Charge dated 28 April 2008 was filed on that day; and

(c) When the hearing date was moved on the respondent’s application to 30 June 2008, an order was made with consent granting the applicant such leave as might be necessary to file a Further Amended Statement of Charge.

3. The hearing date of 30 June 2008 having now been vacated and the hearing being now fixed for 5 August 2008, grant the applicant such leave, if any, as may be necessary to file a further amended Statement of Charge and direct that any such further amended Statement of Charge be filed and served by 4.00pm Sydney time on 27 June 2008.

Mode of service on respondent

4. Order that the applicant may serve any material on the respondent, including any further amended Statement of Charge pursuant to order 3, by transmitting the same by email to toben@adelaideinstitute.org, and that a hard copy shall thereafter be posted to the respondent at PO Box 3300, Norwood SA 5067.

Any further material from the respondent

5. Note that the respondent has not been and will not be compelled to file or serve or rely on material that may constitute an admission by him of any matters charged as contempt or that might incriminate him.
6. Direct that if the respondent elects to file and serve any further material, he shall do so by 4.30pm Sydney time on 25 July 2008.
7. Direct that if the respondent elects to rely at the hearing on any material filed and served or to be tendered by him, he shall by 4.30pm Sydney time on 25 July 2008 transmit by email to the applicant’s solicitors a letter identifying each affidavit and any other material on which he will seek to rely at the hearing.

Objections to affidavits

8. Note that the applicant has served on the respondent objections to 13 of his affidavits.
9. Order that by 4.30pm Sydney time on 31 July 2008 each party shall by email transmit to the other (in the case of the applicant to its solicitor at slewis@slatergordon.com.au) and copy to Lander J’s Executive Assistant at ea.landerj@fedcourt.gov.au any objections, or in the case of the applicant further objections, he proposes taking to any affidavit or other material served or notified by the other party.
10. Note that the parties consent to Lander J looking at affidavits any party has said he will rely on, and objections to same, prior to the hearing on 5 August 2008, should his Honour wish to do so for the purpose of preparing to rule on objections.

Other

11. Confirm listing for hearing in Adelaide on 5 August 2008, with estimate of three days, of:

Applicant’s proposed Amended Notice of Motion dated 27 June 2008

Respondent’s Notice of Motion filed on 4 January 2008

Respondent’s Notice of Motion dated 19 February 2008.

11a. The respondent to give particulars of the orders sought in the notices of motion of 4 June 2008 and 19 February 2008 by 25 July 2008.

12. The respondent’s oral application for the issue of a subpoena directed to Goldberg J be refused.
13. The directions hearing be adjourned until 5 August 2008 at 10.15am at which time the trial will commence.
14. Reserve costs of 11 June 2008 and of these orders.
15. Liberty to apply by arrangement with or on reasonable notice to the other party.
    
    
58. On 27 June 2008 pursuant to those orders, the applicant filed an amended notice of motion and a Third Further Amended Statement of Charge. The Third Further Amended Statement of Charge as filed is annexed to these reasons. Leave was given at the hearing for the applicant to amend the Third Further Amended Statement of Charge by in the case of charge 7 to delete the words “From Jeremy’s 14 December affidavit”; charge 9 to add the words “and in Exhibit JJ1 to the affidavit of Jeremy Jones sworn on 1 November 2006”; and in charge 28 to amend the date from 24 June 2007 to 24 June 2008. Those amendments have not yet been made to the document but should be attended to by the applicant’s advisers.
59. The notice of motion seeks the following orders:
    1. That the respondent be found guilty of contempt of this Court for failing to comply with the order made by her Honour Justice Branson on 17 September 2002 (the Order), in that the respondent did publish or republish to the public by himself or any agent or employee, on the World Wide Web or otherwise:
       
       

1.1 the document headed “About the Adelaide Institute”, being a document with substantially similar content to the document referred to in order 1 of the Order;

1.2 other material which conveys the following imputations or any of them:

A There is serious doubt that the Holocaust occurred;

2. It is unlikely that there were homicidal gas chambers at Auschwitz;
   
   

100. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;
     
     

4. 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.
   
   

2. That the respondent be found guilty of contempt of this Court for failing to comply with his undertaking to this Court on 27 November 2007 in that:
   
   

2.1 after giving the undertaking, the respondent again failed to comply with the Order, in that he did publish or republish to the public by himself or any agent or employee, on the World Wide Web:

(a) the document headed “About the Adelaide Institute”, being a document with substantially similar content to the document referred to in order 1 of the Order;

(b) other material which conveys the following imputations or any of them:

1. There is serious doubt that the Holocaust occurred;
   
   
2. It is unlikely that there were homicidal gas chambers at Auschwitz;
   
   

100. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;
     
     

4. 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;
   
   

2.2 he did not remove by 4pm on 4 December 2007 or until after 13 December 2007 any files identified in the Second Further Statement of Charge from http://adelaideinstitute.org and from all other World Wide Web websites the content of which is controlled by him and did not remove all those files and that material until after 23 May 2008.

2. That the respondent be punished for contempt including that the respondent be committed to imprisonment for disobedience of the said order of this Court and that a warrant be issued accordingly.
   
   
3. That the Sheriff be directed to bring the respondent before the Court before taking the respondent to the place of imprisonment.
   
   
4. That the respondent pay the applicant’s costs of and incidental to this motion on an indemnity basis.
   
   
5. Such further or other orders that as the Court thinks appropriate.
   
   

The notice of motion and the Third Further Amended Statement of Charge

60. The notice of motion seeks orders for the punishment of the respondent for his contempt for failing to comply with the September 2002 orders and for failing to comply with the November 2007 undertaking. The November 2007 undertaking was, of course, to comply with the September 2002 orders. Dr Toben was under a duty to comply with those orders in any event. The applicant seeks an order that the respondent be committed to prison and a warrant issue for his imprisonment.
61. In the Third Further Amended Statement of Charge, the applicant identified 28 separate charges of contempt in two parts. Part A consists of 15 charges of contempt for the wilful and contumacious disobedience of the September 2002 orders. Part B consists of 13 charges of contempt for breaching the November 2007 undertaking.
62. It was agreed by the parties that it would be appropriate for the Court to proceed by way of a two-stage process. The Court should first determine whether the respondent has been guilty of contempt. If the Court is of the opinion that any of the charges of contempt have been made out, then the Court should hear the parties as to penalty. I think the course which the parties proposed is sensible and I will proceed therefore to consider in these reasons only the question whether a contempt has been proved.

The Court’s powers to punish for contempt

63. Section 31(1) of the Federal Court of Australia Act 1976 (Cth) provides the Federal Court with the same power to punish contempts as is possessed by the High Court in respect of contempts of the High Court.
64. Section 24 of the Judiciary Act 1903 (Cth) (the Judiciary Act) provides that the High Court shall have the same power to punish contempts as was possessed at the commencement of the Judiciary Act by the Supreme Court judicature in England.
65. The rationale for the exercise of the contempt power is “to protect the effective administration of justice by demonstrating that the Court’s orders will be enforced”: AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 107.
66. In Attorney-General v Times Newspapers [1974] AC 273 at 309, Lord Diplock said:

Contempt of court is punishable because it undermines the confidence not only of the parties to the particular litigation but also of the public as potential suitors, in the due administration of justice by the established courts of law.

67. There is “a public interest in the exercise of the contempt power in cases of disobedience to an order”: Mudginberri Station [1986] HCA 46; 161 CLR 98 at 107.
68. The law recognises a distinction between civil and criminal contempts. A civil contempt usually involves disobedience to a court order or breach of an undertaking. On the other hand, a criminal contempt is committed where there is contempt in the face of the court or an interference with the administration of justice.
69. In The King v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 at 243 Latham CJ said, “Wilful disobedience to an order of the Court is contempt of a criminal nature.” In Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 489, Barwick CJ said:

A contempt in procedure by disobedience of an order of the Court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt.

70. In Mudginberri Station [1986] HCA 46; 161 CLR 98 at 108, Gibbs CJ, Mason, Wilson and Deane JJ said:

When the defendant’s disobedience is casual it may readily appear that the primary purpose of exercising the power is to vindicate the plaintiffs’ rights. On the other hand, when the disobedience is accompanied by public defiance it may as readily be seen that the primary purpose of exercising the power is the vindication of the court’s authority. But the classification in terms of primary purpose is a more complex and artificial undertaking when the punishment is for wilful disobedience unaccompanied by defiance. There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi criminal in character, notwithstanding the adoption of the contrary view by some members of this Court in the decisions to which we have already referred.

71. A civil contempt may be classed as a criminal contempt if there has been a contumacious defiance of the Court’s order or an undertaking given to the Court: Mudginberri Station [1986] HCA 46; 161 CLR 98 at 108.
72. In Witham v Holloway (1995) 183 CLR 525, Brennan, Deane, Toohey and Gaudron JJ described the distinction between civil and criminal contempts as illusory. In that case, the majority held that because contempt proceedings are brought to punish the contemnor either for the purpose of vindicating judicial authority or for the purpose of coercing obedience to an order, the proceedings must realistically be seen as criminal in nature. For that reason, whether the contempt is civil or criminal, the charge must be proved beyond reasonable doubt. The onus of establishing the contempt is, of course, on the party asserting it.
73. The applicant contends that the respondent’s conduct is contumacious and in deliberate defiance of the September 2002 orders and the November 2007 undertaking. In those circumstances, it was put that the respondent’s conduct must be characterised as criminal contempt because “it occurs in circumstances where the conduct amounted to public defiance, involves a public injury and this calls into play a penal disciplinary jurisdiction to deal with criminal contempt”: Mudginberri Station [1986] HCA 46; 161 CLR 98 at 108.
74. In discharging the onus of proof, the applicant must establish beyond reasonable doubt that the respondent had knowledge of the order or undertaking and voluntarily did an act or omitted to do an act in breach of that order or undertaking. A party must comply strictly with an order that requires the party to do something or to refrain from doing something.

The course of the trial

75. Dr Toben was represented by counsel. I adopted the procedure of having the charges read over to Dr Toben. He pleaded not guilty to each of the 28 charges.
76. The applicant tendered, without objection, six affidavits sworn by the applicant and four affidavits sworn by the applicant’s solicitor in support of the notice of motion for contempt. Each of those affidavits contained a number of exhibits which contained information which was found on the Adelaide Institute website on different dates including the dates contained in the various charges. The applicant also tendered three affidavits of service.
77. The respondent had filed a number of affidavits prior to the filing of the notice of motion and Statement of Charge of 27 June 2008. The applicant contended at the hearing that a number of admissions were made by the respondent in those various affidavits and sought to tender those admissions. The respondent objected. First, it was contended by the respondent that the applicant should not be allowed to tender any extracts from the respondent’s affidavits whether they be admissions or not. Secondly, it was contended that if the applicant was entitled to tender an admission the applicant should be called upon to tender the whole of the affidavit in which the admission was contained.
78. I examined the statements contained in the affidavits to determine whether those statements could be properly described as admissions. In a number of cases, I formed the conclusion that the paragraphs which were sought to be tendered did not contain admissions. In other cases, I concluded that the paragraphs sought to be tendered might contain admissions.
79. The applicant argued, relying upon a decision of the Supreme Court of Victoria in Wimpole v McIlwraith [1923] VicLawRp 68; [1923] VLR 553, that those paragraphs of the respondent’s which contained admissions were admissible without the applicant being required to tender the whole of the affidavit. In that case, Mann J said at 555:

I think in trials without juries there has been in our Courts some diversity of practice about this matter, and I think the reason is that there are two courses that may be taken, and which lead now practically to the same result. One course I might take here would be to admit the four paragraphs tendered, subject to and along with any other qualifying paragraphs to which the defendant’s counsel would be at liberty to refer without thereby being taken to be tendering evidence. The other alternative is to insist on the whole document going in, but with these reservations, which seem to be just—firstly, that the plaintiff putting in the document would only be bound by the admissions to which he calls attention and any qualifications contained in any other part of the document. The defendant would not be treated as calling evidence by calling attention to any such qualifications. As regards statements appearing elsewhere in the affidavit prejudicial to the plaintiff, I should hold that he is not bound by them in the circumstances, and, so far as those statements were in support of facts, the proof of which was on the defendant, I should not accept them as being sufficient proof of those facts by the defendant for the purpose of satisfying that proof.

80. I refused to admit those parts of the respondent’s affidavits which contained admissions. If it were a criminal trial, s 90 of the Evidence Act 1995 (Cth) (the Evidence Act) would give the Court a discretion to refuse to admit the evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The admissions were contained in affidavits filed prior to the present charges being laid. The respondent was unrepresented at that time. He was apparently not warned that anything contained in an affidavit might be used against him in contempt proceedings. The applicant only seeks to put part of the respondent’s affidavit, effectively reserving to himself the editing of the respondent’s affidavits. However, this is not a criminal trial, even though the charges must be proved to the level of satisfaction required in a criminal trial, so s 90 of the Evidence Act does not control the admissibility of the evidence of an admission.
81. Section 135 of the Evidence Act applies to both criminal and civil trials. It permits the Court to refuse to admit evidence if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the party against whom the evidence is sought to be tendered. It seems to me the unguarded admissions made by a party which are sought to be used for the purpose of proving the party to be in contempt of Court and therefore liable to be imprisoned could be unfairly prejudicial to that party. They might, if admitted, mean that that party is put at a forensic disadvantage by having to give evidence to explain the admissions where otherwise that party would choose not to give evidence. The Courts have said the inability to cross-examine on material sought to be adduced in a civil trial may attract the discretion in s 135: Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55]; Longhurst v Hunt [2004] NSWCA 91 at [46]- [49].
82. This is a trial in which the applicant seeks an order for the imprisonment of the respondent for his contempt of court. Whilst, of course, it is not thereby a criminal trial, it seems to me that the respondent should be entitled, if possible, to the same evidentiary protection given a person in a criminal trial. That does not mean to say that all of the procedures and rules of evidence which attach to a criminal trial must attach to a trial for contempt. But where there is a choice open to the Court to reject evidence that would not be admissible in a criminal trial, the Court would usually reject that same evidence in a trial where the proof of the assertions might lead to the imprisonment of a party. For those reasons, I rejected the tender.

The issues

83. The issues which are to be determined by me on the notice of motion for contempt are straightforward. In relation to Part A of the Statement of Charge, were the September 2002 orders made by Branson J? Are the orders unambiguous? Was the respondent aware of the orders? Has the respondent breached paragraph 2 of those orders? If a finding is made that the respondent has breached either or both of paragraphs 2 and 3 of those orders, were those breaches wilful and/or contumacious?
84. In relation to Part B of the Statement of Charge the issues to be determined are whether the respondent gave the November 2007 undertaking recorded in the orders made by Moore J; whether the respondent has breached that undertaking by failing to comply with the orders made by Branson J or failing to remove all files and materials as identified in paragraph 6(b) of the orders made by Moore J or failing to comply with the undertaking recorded in paragraph 6(c) of his Honour’s orders.
85. If the finding is made that the respondent has breached the September 2002 orders and the November 2007 undertaking and those breaches are found to be wilful and/or contumacious, whether an order should be made for the respondent’s imprisonment and, if so, the length of the term of imprisonment. That last mentioned matter will be addressed at a later time if the previous matters are established.

The orders and the undertaking

86. I find that Branson J made the September 2002 orders in the terms of the orders already recited. I find that the respondent gave the November 2007 undertaking on 27 November 2007 to Moore J as noted in the November 2007 orders.

The respondent’s contentions

87. Mr Perkins, who appeared for the respondent, put a number of arguments in relation to the validity of the September 2002 orders and their effect. I will address each of those arguments but those arguments have to be understood against the principle that an order of a superior court stands until it is set aside on appeal or it is revoked or discharged by the Court. While the order stands, parties who are affected by the order must comply with the order.
88. Dr Toben has published remarks which might be described as insulting of the Court and which tend to scandalise the Court. An act which is calculated to lower the authority of the Court or a judge of the Court or an act which is calculated to obstruct or interfere with the course of justice will be a contempt: The King v Nicholls [1911] HCA 22; (1911) 12 CLR 280. The first class is often referred to as scandalising the Court. Mr Perkins, Dr Toben’s counsel, argued that the Court should not have regard to those remarks in considering whether these charges of contempt have been made out.
89. I think that contention is partly right. Clearly enough, whatever remarks Dr Toben has made about the Court would not be relevant in determining whether his other remarks or his other publication was in disobedience of the September 2002 orders or breached the November 2007 undertaking.
90. However, his remarks may be relevant for that aspect of the applicant’s case which is directed to establishing contumacy.
91. It was put by the respondent that the September 2002 orders ought to be understood as being subject to s 18D of the Racial Discrimination Act. Section 18D of the Racial Discrimination Act provides:

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

92. It was put that her Honour’s order merely reflected s 18C of the Racial Discrimination Act and the exemptions in s 18D continue to apply.
93. I do not accept that argument in the form in which it was put. This is not a proceeding for a contravention of Part IIA of the Racial Discrimination Act. It is not a proceeding in which the moving party needs to establish that the party against whom the proceeding has been brought has done something unlawful by reason of a provision of Part IIA of the Racial Discrimination Act.
94. The critical question for determination in this proceeding is whether the respondent has contravened the September 2002 orders or the November 2007 undertaking by publishing material which the September 2002 orders forbid.
95. The exemptions in s 18D, in my opinion, have no application to the question of contempt.
96. It was put by way of an alternative argument that the September 2002 orders ought to be construed as not intending to deny Dr Toben his right of free speech which was said to be given him by s 18D of the Racial Discrimination Act. Mr Perkins relied upon Evans v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576. In that case, the Full Court of this Court held regulations made under the World Youth Day Regulation 2008 (NSW) which were in turn made under the World Youth Day Act 2006 (NSW) are invalid in that they impermissibly infringe freedom of speech. I do not think that directly impacts upon the proposition which was put by the respondent.
97. I think the proposition that must be accepted is that the September 2002 orders were made for the purpose of preventing the respondent from engaging in conduct that is rendered unlawful by the Racial Discrimination Act. They ought to be construed in accordance with the provisions of that Act in the sense that Branson J would not have intended to make orders preventing the respondent from doing something which was otherwise lawful.
98. The September 2002 orders ought to be understood as only preventing the respondent from doing something which is unlawful. The purpose of the orders was to require him to desist from further publications in contravention of the Racial Discrimination Act and requiring him to remove publications which had already been held to contravene the Racial Discrimination Act.
99. Insofar as the orders acted prospectively in relation to further publications, then they must be understood to prevent any publications which would be unlawful under the Racial Discrimination Act and not to prevent any publications which are not unlawful under that Act.
100. But, that said, the September 2002 orders which were confirmed by the Full Court determine authoritatively for the purpose of this application that publication of the AI Document to the public is rendered unlawful by the Racial Discrimination Act.
101. Moreover, the argument put does not assist the respondent in the proceeding because the respondent has not tendered any evidence at all and there is no evidence that would bring the respondent within s 18D of the Racial Discrimination Act. The onus was on the respondent to establish an entitlement to an exemption under s 18D of the Racial Discrimination Act: Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at [127] and [230].
102. Next it was put that the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) has the effect of rendering the September 2002 orders nugatory. It was not explained what was meant by the term “rendering the order nugatory” but unless the Citizenship Act had the effect of discharging or revoking the September 2002 orders then the orders would continue to stand.
103. Mr Perkins relied upon the preamble in the Citizenship Act which provides:

The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

(a) by pledging loyalty to Australia and its people; and

(b) by sharing their democratic beliefs; and

(c) by respecting their rights and liberties; and

(d) by upholding and obeying the laws of Australia.

104. He relied upon Roach v Electoral Commission (2007) 233 CLR 162. That case was concerned with provisions of the Electoral Act 1918 (Cth) which disqualified as voters at federal elections persons who were serving sentences of imprisonment regardless of duration for offences against the laws of the Commonwealth, a State or a Territory. In the course of his reasons, Gleeson CJ said at [12]:

The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and the Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership, that is, the right to vote. Emphasis upon civic responsibilities a the corollary of political rights and freedoms, and upon society’s legitimate interest in promoting recognition of responsibilities as well as acknowledgment of rights, has been influential in contemporary legal explanation of exclusions from the franchise as consistent with the idea of universal adult suffrage.

105. In my opinion, those remarks have no relevance to the issues under consideration. Dr Toben has not been deprived of any rights attaching to citizenship.
106. The declaration in paragraph 1 of the September 2002 orders is that the respondent in publishing the AI Document engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act. The injunctions in paragraph 2 require him to remove from the Adelaide Institute website the AI Document and any other material which convey the imputations to which reference is made. That order contemplates that anything published which contains those imputations would contravene s 18C of the Racial Discrimination Act. The injunctions in paragraph 3 make the same assumptions. The injunctions restrain him from engaging in conduct which the Racial Discrimination Act renders unlawful. No citizen is entitled to engage in similar unlawful conduct because of the provisions of s 18C of the Racial Discrimination Act. Dr Toben has not lost any of the incidents of citizenship which are given by the Citizenship Act.
107. In my opinion, there is nothing in the preamble to the Citizenship Act which would have the effect of discharging or revoking the September 2002 orders or rendering them “nugatory”.
108. Later in his argument, Mr Perkins argued that, if the Citizenship Act does not have the effect of revoking or discharging the September 2002 orders, those orders must be understood by reference to that Act. I cannot accept that argument because I cannot see that the Citizenship Act has any relevance to the construction of the September 2002 orders.
109. The respondent next argued that the September 2002 orders were vague or unclear and therefore cannot be enforced in contempt proceedings, and in that regard relied upon the decision of the Full Court of this Court in Universal Music Australia Pty Ltd v Sharman Network Ltd [2006] FCAFC 41.
110. In ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248, Lockhart J (with whom Gummow J agreed and French J generally agreed) said at 259:

Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed.

That decision was approved in Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41.

111. In Telstra Corporation Ltd v SingTel Optus Pty Ltd [2007] FCA 824 at [19] the Court said:

It is a fundamental principle of the law relating to injunctions that they should be expressed with precision. A person against whom an injunction is made should be told precisely what can or cannot be done ...

112. In Attorney-General v Punch Ltd (2003) 1 All ER 289, Lord Nicholls said at [35]:

An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The Court must ensure that the language of its order makes it plain what is permitted and what is prohibited. This is a well-established, soundly based principle. The person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute.

113. It was argued that the September 2002 orders were imprecise and vague in that in paragraph 3 of the orders reference was made to “substantially similar content to the document ‘About the Adelaide Institute’”. It was contended that the form of order required the respondent to make a subjective assessment of what might be substantially similar content to that which was contained in the document “About the Adelaide Institute”. It was contended that in those circumstances the order was so vague that it should not be the subject matter of contempt proceedings.
114. I disagree. The intention of the September 2002 orders is to prevent Dr Toben from continuing to engage in conduct that is rendered unlawful by s 18C of the Racial Discrimination Act. The September 2002 orders were designed to achieve that result in two ways. First, in paragraph 2 by requiring Dr Toben to remove from the Adelaide Institute website the AI Document and any other material which conveyed the imputations in paragraph 2(a)(iii). Branson J made that clear when she approved at [111] the approach taken by the Canadian Human Rights Tribunal which considered the utility of making any order in a similar case. In the case of Citron v Zündel 41 CHRR D/74, the Tribunal said at [300]:

Any remedy awarded by this, or any Tribunal, will inevitably serve a number of purposes: prevention and elimination of discriminatory practises is only one of the outcomes flowing from an Order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately larger preventative benefit that can be achieved by open discussion of the principles enunciated in this or any Tribunal decision.

115. Paragraph 3 of the orders was designed to ensure that once there had been compliance with paragraph 2 of the orders, conduct of the kind which gave rise to the declaration in paragraph 1 would not be repeated. To that end, paragraph 3 restrains Dr Toben from publishing the AI Document anywhere on the World Wide Web and further restrains him from publishing material with substantially similar content to that document. It was necessary to include paragraph 3(b) because otherwise it might have been said by Dr Toben that he was entitled to publish on the World Wide Web information which was in slightly different form to that which was contained in the AI Document. Paragraph 3(c) of the orders is designed to reflect, insofar as future conduct is concerned, that which Dr Toben was obliged to remove from the World Wide Web website in accordance with paragraph 2(a)(iii).
116. In my opinion, the orders are not imprecise or vague and uncertain. They do not become so because they require the party to whom they are directed to make a subjective assessment of the material which may be published on the World Wide Web.
117. Lastly, the respondent argued that Dr Toben was provoked by Mr Jones’ publication in the Australian Jewish News to publishing the material which he did and breaching the undertaking. The respondent relied on Fig Tree Developments Ltd v Australian Property Custodial Holdings [2008] FCA 1041. I do not, with respect, think that that case stands for the proposition which was put. That case involved an application for discovery and the judge made some observations about a party having the right to apply to be released from an undertaking.
118. But, in any event, there are a number of difficulties with this argument. First, the September 2002 orders and the November 2007 undertaking operated in their terms for all circumstances. Dr Toben was obliged to comply with the terms of paragraphs 2 and 3 of the September 2002 orders until such time as those orders were varied or revoked. If he thought that Mr Jones had said something that would have allowed him to respond, but for the orders to which he was subjected, he could have applied to the Court for a variation or revocation of those orders. He was not entitled for himself to ignore those orders. Secondly, there is no evidence that he responded as he did because of the provocation which he said was displayed by Mr Jones. His articles suggest that he thought he had some right to respond because of what was published in the Australian Jewish News but there is no evidence because he gave none that he was provoked into doing what he did. Thirdly, and in any event, intention is not an element that needs to be established by the moving party when that party seeks punishment for contempt by another party disobeying an order of the Court.
119. For all of those reasons, those arguments fail.
120. As I have already said, the respondent, as was his right, elected to give no evidence in contradiction of the applicant’s case or in support of any case which he might wish to advance. Nothing should be inferred from his exercising his right not to call evidence and remain silent. However, his case has to be considered in light of the absence of any evidence. That means, for example, there is no evidence that the publications were made in good faith and in the circumstances in s 18D of the Racial Discrimination Act.
121. Moreover, the respondent did not address the publications themselves and put no argument as to whether the publications did or did not disobey the September 2002 orders or breach the November 2007 undertaking.

Further issues

122. The matter to which I will now refer was not raised by the respondent in answer to any of these charges of contempt but should be addressed in any event having regard to the seriousness of these charges.
123. On 13 September 2002 Branson J’s associate emailed the respondent advising him that her Honour would be handing down her judgment on Tuesday, 17 September 2002 at 9.30am (Eastern Standard Time) in Sydney. The associate wrote:

You may attend Court in Sydney to receive a copy of this judgment but you are not obliged to do so.

I will arrange for a copy of the judgment to be available at the Adelaide Registry of the Federal Court for you to collect once it has been handed down. If you wish, it may be possible to arrange a videolink from the Sydney Registry to the Adelaide Registry of the Federal Court for the handing down of the judgment by Justice Branson. Please let me know as soon as possible if you would like me to arrange a videolink. The judgment of the Court will be mailed to you if you do not attend Court in either Adelaide or Sydney to collect a copy of the judgment.

Please contact me if you have any further questions or if you would like me to arrange a videolink.

124. The judgment was handed down on 17 September 2002 and, in due course, a copy of the judgment was provided to Dr Toben. He thereby became acquainted with the September 2002 orders. Indeed, he claims that he attempted to comply with the orders which indicates his awareness of the terms of the orders.
125. Order 37 rule 2 addresses the service of orders before committal or sequestration. It provides:

2(1) Subject to the rules, an order shall not be enforced by committal or sequestration unless—

(a) the order or a certified or office copy thereof is served personally on the person bound; and

(b) if the order requires the person bound to do an act within a specified time, the order or a certified or office copy thereof is so served before that time expires.

(2) Subject to the Rules, where the person bound by an order is a corporation or organisation the order shall not be enforced by committal of an officer of the person bound or by sequestration of the property of an officer of the person bound unless, in addition to service under subrule (1) on the person bound—

(a) the order or a certified or office copy thereof is served personally on the officer; and

(b) if the order requires the person bound to do an act within a specified time, the order or a certified or office copy thereof is so served before that time expires.

(3) An order or a certified or office copy thereof served under this rule must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if—

(a) where the order requires the person bound to do an act within a specified time, the person bound refuses or neglects to do the act within that time; or

(b) where the order requires the person bound to abstain from doing an act, the person bound disobeys the order.

(4) Subject to the Rules, where—

(a) an order requires the person bound to do an act; and

(b) another order specifies the time in which the act is required to be done,

each order or a certified or office copy thereof shall be served on the person bound before the expiry of that time as so abridged or extended.

(5) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment or order has notice of the judgment or order—

(a) by being present when the judgment is pronounced or when the order is made; or

(b) by being notified of the terms of the judgment or order whether by telephone, telegram or otherwise,

the judgment or order may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with this rule.

(6) The Court may dispense with service under this rule.

126. The respondent himself entered Branson J’s order so that he could appeal against it.
127. However, the respondent has not been served with the September 2002 orders. Nor has he been served with orders which satisfy O 37 r 2(3) by carrying the notice referred to in the subrule.
128. I am satisfied that the respondent was aware of the terms of the orders made by Branson J at or about the time that the orders were made and certainly well aware of the terms at the time that he entered those orders. His awareness of the orders is demonstrated by his removal of the AI Document from the website within the time stipulated in paragraph 2 of the orders. Therefore, although he was not served personally with those orders, he was aware of them from that time. I am not satisfied that at any time prior to 16 November 2006 the respondent was made aware that a failure to comply with those orders could lead to his imprisonment. However, he became aware of that possible result when he was served by the applicant’s notice of motion of 16 November 2006 which sought an order that he be punished for contempt including that he be committed to imprisonment for disobedience of the order of the Court and that a warrant be issued accordingly.
129. I am satisfied therefore that he was aware from 16 November 2006 of the consequences of his failure to comply with the September 2002 orders.
130. I am therefore prepared to dispense with service of the September 2002 orders in accordance with O 37 r 2(6) and further order that the September 2002 orders may be enforced by committal, notwithstanding that the applicant has failed to serve a notice in accordance with O 37 r 2(3).
131. However, as there is no evidence that the respondent was aware of the consequences of non-compliance prior to 16 November 2006 the order will have effect only from that date.
132. I should note that O 37 r 2(1) and (3) only apply when the order is to be enforced by committal or sequestration. It would not seem to apply if a fine were imposed.
133. Of course, the November 2007 undertaking is in a different class. The respondent gave the undertaking himself. He has always been aware of that undertaking and its effect. So much is clear from his attempting to resile from the undertaking. An undertaking given to the Court is punishable in the same way as if it were an order of the Court. It is a contempt to breach an undertaking the same as it is to disobey an order of the Court: Biba Ltd v Stratford Investments Ltd [1973] Ch 281; Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384; (1986) 19 FCR 110. A breach of an undertaking will involve the same consequences for the party in breach as disobedience of an order of the Court: Milburn v Newton Colliery (1908) 52 S.J. 317. Where the undertaking is given to the Court by the person who is to be bound by the undertaking, the undertaking does not need to be served upon that person before contempt proceedings for a breach of that undertaking are commenced. Order 37 rule 3 only applies to orders, not undertakings: Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384; 19 FCR 110.

Separate charges for breaches of the September 2002 orders and the November 2007 undertaking

134. The applicant relies upon the breach by the respondent of the September 2002 orders and the respondent’s failure to honour the November 2007 undertaking separately as grounds for punishment for contempt. Because the November 2007 undertaking was to comply with the September 2002 orders that means that any publication subsequent to 27 November 2007 which was in breach of the September 2002 orders would also be in breach of the November 2007 undertaking. It seems to me, however, the applicant was entitled to rely upon the separate breaches for the charges although, in due course, if the charges are established it might be appropriate to order one penalty for each of the separate breaches.

The Adelaide Institute website

135. Something needs to be said about the Adelaide Institute website. The Adelaide Institute publishes newsletters on its website. Those newsletters have links, one of which provides access to a site called the “Wayback Machine”. The Wayback Machine is a web archive crawler or browser. Mr Jones has exhibited to his affidavit of 25 April 2008 information which he accessed from the website www.archive.org on 24 April 2008 which refers to the Wayback Machine.
136. The site described as the Wayback Machine has 85 billion web pages archived from 1996. It appears that as a result of a grant from the Mellon Foundation Internet Archive completed a 2 billion page web crawl in 2007 designed to take a global snapshot of the web at that time.
137. The archive services are designed to archive and preserve information which has been posted on the web and which would ordinarily be deleted or removed after 44-75 days.
138. It is recorded that a party must be a registered user to submit a site to the archive. That requires the party to login or register as a new user. It is also recorded that a party may remove the database from the archive site. The terms of use of the Wayback Machine which were promulgated on 10 March 2001 provides for accessibility to the archive collection. It provides:

While we collect publicly available Internet documents, sometimes authors and publishers express a desire for their documents not to be included in the Collections (by tagging a file for robot exclusion or by contacting us or the original crawler group). If the author or publisher of some part of the Archive does not want his or her work in our Collections, then we may remove that portion of the Collections without notice.

139. Under the heading “Privacy Policy” it is recorded:

The primary sources of content for the Collections are publicly accessible Web pages that were collected and donated by third parties, but the Archive will expand on such sources through its own collection activities. For instructions on removing a particular set of pages currently included in the Collections, please see our policies and procedures for page removal.

140. It is further stated in relation to the same policy:

How to Update Researcher Registration Information

Researchers can help the Archive maintain the accuracy of their information by notifying the Archive of any changes in their address, title, phone number, or email address. Contact the Archive by email at info@archive.org to see, update, or delete your information.

The document provides for further information upon request.

141. It was the applicant’s case that the evidence exhibited to Mr Jones’ affidavit showed that the Adelaide Institute must have cooperated in providing the information to the Wayback Machine but, even if it had not, it could have deleted the information which was available on the Wayback Machine.
142. No attempt was made by Dr Toben to controvert this aspect of the applicant’s case.
143. The AI Document exists on the Wayback Machine. It can be accessed by going to the Adelaide Institute website and using the links on the Adelaide Institute’s newsletters. I am satisfied and find that the information on the Wayback Machine which originated on the Adelaide Institute website and which was accessible by link from that website could have been deleted or removed but was not. The failure to delete or remove any information which was required to be removed by the September 2002 orders or the November 2007 undertaking constituted a breach of those orders or undertaking.

The Third Further Amended Statement of Charge

144. The Third Further Amended Statement of Charge that has been presented in support of this notice of motion and which is annexed to these reasons has the same Schedule A attached to it as was attached to the Statement of Charge filed on 2 November 2007. However, there are three further schedules. Schedule B contains references to further publications which are said to support the existing statements of fact between numbers 68 and 144. Schedules C and D contain further references to publications which are said to support the first two imputations in the September 2002 orders.
145. I should say something about the charges and the way in which the applicant has constructed them. The charges relate to the particular days when either the applicant, Mr Jones, or the applicant’s solicitor, Mr Lewis, accessed the Adelaide Institute website.
146. Where on each of the days Mr Jones or Mr Lewis read the AI Document a charge has been laid on the basis that the continued existence of that document on the website breaches either paragraph 2(a)(i) or 3(a) of the September 2002 orders and therefore is also a breach of the November 2007 undertaking.
147. As well, however, a separate charge has been laid when any information apart from the AI Document might make out any of the imputations which were the subject matters of paragraph 2(a)(iii) and paragraph 3(c) of the September 2002 orders.
148. For example, four charges have been laid in relation to publications prior to the hearing before Moore J. They relate to two separate occasions when Mr Jones accessed the Adelaide Institute website on 18 August 2006 and 11 October 2007.
149. As a result, four charges have been laid; two in respect of 18 August 2006 and two in respect of 11 October 2007.
150. Charge 1 is a claim that the respondent has been guilty of contempt in publishing information on 18 August 2006 which conveyed the imputations referred to in paragraph 2(a)(iii) and paragraph 3(c) of the September 2002 orders.
151. Charge 3 is a claim that on 18 August 2006 the Adelaide Institute published the AI Document or material substantially similar to that document in contravention of paragraph 2(a)(i) or paragraph 3(a) of the September 2002 orders.
152. Charge 2 relates to 11 October 2007 and complains of the publication of material which conveyed the imputations to which the orders refer.
153. Charge 4 also relates to 31 October 2007 and relates to the publication of the AI Document on the website as part of the Adelaide Institute Newsletter 346.
154. The same is so of the charges which relate to publications after the hearing before Moore J on 27 November 2007. Separate charges are brought in relation to the publication of the AI Document and the publication of information which would convey the imputations referred to in the September 2002 orders on each occasion when Mr Jones or his solicitor accessed the website.
155. After the November 2007 undertaking was given, however, the applicant has not only laid a charge that the respondent has for example published the AI Document in contravention of the September 2002 orders but also, by that publication, has breached the November 2007 undertaking.
156. Since 27 November 2007 Mr Jones has accessed the Adelaide Institute website on 7 December 2007 (charges 5 and 16), 11 December 2007 (charges 6 and 17, and 7 and 18 and 27), 24 April 2008 (charges 8 and 19 and 9 and 20), 23 May 2008 (charges 10 and 21 and 11 and 22), and 20 June 2008 (charges 12 and 23).
157. Mr Lewis has accessed the Adelaide Institute website on 24 June 2008 (charges 13 and 24, 14 and 25 and 28), and 25 June 2008 (charges 15 and 26).
158. On each occasion the applicant and his solicitors have accessed the Adelaide Institute website a charge has been laid for both a breach of the September 2002 orders and a breach of the November 2007 undertaking.
159. Two charges arise out of Mr Jones accessing the Adelaide Institute website on 11 December 2007 and Mr Lewis accessing the Adelaide Institute website on 24 June 2008. The extra charges are numbers 27 and 28.
160. Charge 27 relates to an alleged failure by the respondent as at 11 December 2007 (when Mr Jones accessed the website) to remove all files and materials identified in the Second Further Amended Statement of Charge by no later than 4.00 pm on 5 December 2007 in breach of paragraph 6(b) of the November 2007 undertaking. Charge 28 relates to an alleged failure by the respondent as at 24 June 2007 (sic) (when Mr Lewis accessed the website) to remove all files and materials identified in the Second Further Amended Statement of Charge by no later than 4.00 pm on 5 December 2007 in breach of paragraph 6(b) of the November 2007 undertaking.
161. Charges 27 and 28 do not therefore rely in any way upon the September 2002 orders and, in that sense, are freestanding. However, the undertaking given in November 2007 and, in particular, the undertaking in paragraph 6(b) is in effect the same as paragraph 2(a)(iii) of the September 2002 orders. To that extent, the charges duplicate charges which rely upon the respondent’s failure to remove material from the Adelaide Institute website in disobedience of paragraph 2(a)(iii) of the September 2002 orders. Moreover, charges 27 and 28 in some respects refer to the same material, albeit at the two different dates.
162. The particulars of charge 27 rely upon the continued accessibility of items 18, 68-81, 94-101, 110-117, 119, 143 and 144, amongst other material, as the breach of the November 2007 undertaking.
163. The particulars to charge 28 rely upon the material in Newsletters/Archive sections for newsletters 50-88 and 93-112 remain(ing) accessible as the breach of the November 2007 undertaking.
164. The respondent did not take issue with the duplication to which I have referred or the repetitive nature of the charges. Nor did the respondent take issue with the particulars to charges 27 and 28 which do not reflect the form of undertaking given in November 2007 probably because the charge itself does reflect that form.
165. However, the respondent’s counsel submitted that charges 1, 2, 7, 9, 11, 14, 15, 18, 20, 22 and 26 should be stayed because they were inherently duplicitous. The duplicity as I understood the argument was two-pronged. First, the charges alleged that the respondent had published information which gave rise to more than one imputation. That, it was said, was the first reason the charges were bad. Secondly, the charges relied in their particulars on more than one statement of fact to prove each imputation.
166. The second argument may be disposed of quickly. The applicant asserted by way of the particulars that each and every item of evidence would establish that the imputation was conveyed. The charges are not duplicitous because they can be proved by more than one item of evidence.
167. The first argument must also be rejected. Paragraph 3(c) of the September 2002 orders restrained the respondent from publishing on the World Wide Web “any other material which conveys the following imputations or any of them”.
168. The impugned charges reflect the September 2002 orders and the particulars identified those imputations which were said to be conveyed by the particular publication. It is the publication on the World Wide Web which gives rise to the charge if the publication conveys any of the imputations in the September 2002 orders. The contempt is in publishing on a particular day on the particular website material which conveys any of the four imputations. The charge as drawn is not embarrassing.
169. If it be the case that Dr Toben has never completely removed the AI Document from the Adelaide Institute website then, of course, on every occasion that Mr Jones or his solicitor or anyone else for that matter accesses the Adelaide Institute website and proceeds through the links which are available to reach the AI Document, there will be a publication of that document in disobedience of the September 2002 orders and in breach of the November 2007 undertaking.
170. It is not clear why the applicant has made repeated efforts, albeit successful, to obtain access to the Adelaide Institute website for the purpose of establishing a publication for the further purpose of bringing charges. It may have been that the object was to establish that the information was still on the Adelaide Institute website. However, that could have been done by proving that fact without necessarily having to lay a charge. That would have been a matter, if there be a disobedience to the September 2002 orders or breach of the November 2007 undertaking, for penalty. The applicant may have adopted this course so the applicant could establish by inference that the information had been on the website over the whole of the period since a week after the September 2002 orders.
171. The applicant relied on six affidavits of Mr Jones and three affidavits of Mr Lewis. The applicant has referred to each of the applicant’s affidavits as “JJ1” to “JJ6” and each of Mr Lewis’ affidavits as “SL1” to “SL3”. The difficulty is that those affidavits have exhibits to them which are also styled “JJ1”, “JJ2”, etc and “SL1”. The exhibits to Mr Jones’ affidavits are voluminous containing a number of documents separated by tabs.
172. The charges, as already indicated, contain four schedules. Schedules A and B identify statements which have been published at the Adelaide Institute website identifying the particular website where the statement have been read. Schedules C and D identify various publications which have been read on the particular Adelaide Institute website and identify the exhibit to Mr Jones’ affidavit where they can be read.
173. The particulars to the charges attempt to identify the place at which the particular publication can be found. There are many hundreds of pages in the exhibits to the affidavit and where imputations arise it is difficult to find the particular words relied upon to determine whether the words convey the imputation. In some charges many documents are relied upon to establish one imputation. I cannot set out in these reasons all of the statements said to convey the imputations. I will give, in the case of some charges, examples of the publications.
174. The applicant provided the Court with a “key” to the charges and schedules to the charges. The key identified the charge number and the date of access to the Adelaide Institute website. It also identified the affidavit which was relied upon to establish the breach and the exhibits to the affidavit relied upon.
175. In some charges the applicant alleged simply that the respondent had published on the Adelaide Institute website the AI Document. In others it was alleged that he had published material which conveyed one or more of the imputations referred to in the September 2002 orders. The exercise which the applicant left the Court was to trawl through the many hundreds of pages of evidence to determine whether, for example, the exhibited document which had been downloaded on a particular date contained information which established one of the statements of fact in Schedules A and B or was one of the publications in Schedules C and D and those statements of fact or publications conveyed any of the four separate imputations referred to in the September 2002 orders. I have undertaken the exercise and read the exhibits to the affidavits but it has been a very time consuming exercise for the Court.

Preliminary Findings

176. Branson J found that the respondent controlled the Adelaide Institute and caused material to be placed on the Adelaide Institute’s website. I make the same findings. To avoid doubt, I find that Dr Toben was able, at all times, to place material on the Adelaide Institute website and remove any material whether it was offending material or not.
177. I am satisfied that there has been published on the Adelaide Institute website all of the material asserted by Mr Jones and Mr Lewis to have been published on that website on the dates upon which they asserted it to have been published. I am satisfied that the material which was published is that which is exhibited to their affidavits.
178. I also find that the website was accessible by the public and that any material published on the website or available by link from the website was published to the public.

Charges 1 to 4

179. The notice of motion which was heard by Moore J on 27 November 2007 was filed, as I have said, on 16 November 2006 and supported by a Second Further Amended Statement of Charge pursuant to O 40 r 6 which was filed on 2 November 2007.
180. The particulars relied on in the Second Further Amended Statement of Charge are the same as the particulars in charges 1 to 4 of the charges with which I am concerned.
181. In my opinion, those four separate charges have already been heard and determined by reason of the undertaking given to Moore J in November 2007. As the transcript before Moore J demonstrates, the parties agreed upon the orders made by Moore J upon the respondent giving the apology and the undertaking at that time. That is made clear in paragraph 7 which is a note to the orders that no application will be made for costs so long as the respondent complies with each of his said undertakings.
182. It was said at the hearing before Moore J that Dr Toben signed a document outlining the “terms ... to purge his contempt ...”. I am not aware of any other document apart from the minutes of order signed by Dr Toben.
183. There is no evidence that the applicant reserved to himself the right to prosecute the proceedings for contempt on the notice of motion of 16 November 2006 if the respondent breached the undertaking given on 27 November 2007. It seems to me, that it was intended that the apology and undertakings would dispose of those charges and it is not possible for the applicant to make those charges again in respect of the matters which were the subject of the orders made by Moore J.
184. In those circumstances, I dismiss charges 1 to 4 without further considering whether or not there has been a publication of the kind described in each of those four charges.
185. I would also dismiss charges 1 and 3 because those charges relied upon evidence of publications before 16 November 2006. For reasons already given, I am not satisfied that the respondent had been made aware of the information in the endorsement required by O 37 r 2(3) before that date. I have found that he became aware of the consequences of imprisonment by service of the notice of motion of 16 November 2006.

Charges 5 to 26

186. The charges in this group can be read in groups of two because for each charge of a breach of the September 2002 orders there is also a charge of a failure to comply with the November 2007 undertaking.

Charge 5 and Charge 16

187. The publications which are said to breach the September 2002 orders and the November 2007 undertaking are exhibited as Exhibits “Q”, “R” and “S” to the affidavit of the applicant’s solicitor Mr Lewis sworn on 10 December 2007. Mr Lewis’ evidence is that on 7 December, at approximately 8.30 am, he accessed the website of the Adelaide Institute, www.adelaideinstitute.org, and read and copied the following material:
     1. Newsletter No. 346 dated September 2007 and including the AI Document – Exhibit “Q”.
     2. AI Document at the foot of the page of newsletter – “archive section for newsletters 50-88” – Exhibit “R”; and
     3. AI Document at the foot of the page of newsletter – “archive section for newsletters 93-112” – Exhibit “S”.
188. Attached to the Newsletters/Archives sections for newsletters 50-88 and 93-112 is the AI Document. That document is in the same form as the document referred to in paragraph 1 of the September 2002 orders.
189. In those circumstances, the publication of the AI Document is a contravention of paragraph 2 of the September 2002 orders; in particular, paragraph 2(a)(i).
190. The publication of the documents also offends paragraph 3 of the September 2002 orders because they contain the AI Document and therefore contravene paragraph 3(a) of the September 2002 orders.
191. It does not matter, it seems to me, that the AI Document is only accessed on the Adelaide Institute website by way of link to the document. The link makes the document accessible to any member of the public who accesses the website. Whilst that link remains on the website, so does the document and so there is a breach of the September 2002 orders.
192. It follows that the particulars in charge 5 have been made out that on 7 December 2007 the respondent published to the public on the Adelaide Institute website www.adelaideinstitute.org material with the same content as the AI Document referred to in paragraph 1 of the September 2002 orders; first, as part of the Adelaide Institute’s newsletter no. 346; secondly, on the pages of the Newsletters/Archive sections for newsletters 50-88; and, thirdly, on the Newsletters/Archive sections for newsletters 93-112. He thereby disobeyed the September 2002 orders.
193. It also follows that the particulars in Charge 16 have also been made out and the respondent has thereby breached the undertaking noted in paragraph 6 of the November 2007 undertaking.
194. I find both charges proved.

Charge 6 and Charge 17

195. Charges 6 and 17 refer to publications on the Adelaide Institute website (www.adelaideinstitute.org) on 11 December 2007.
196. On 13 December 2007 the applicant deposed that on 11 December 2007 he accessed the Adelaide Institute website. He observed the AI Document as part of the Adelaide Institute Newsletter 346. He further found the AI Document at three further locations on the Adelaide Institute website, Newsletters/Archives/Newsletters 50-88, Newsletters/ Archives/Newsletters 93-112 and Newsletters/Archives/Newsletters 113-128. Mr Jones’ evidence is uncontroverted.
197. The applicant’s evidence establishes that the respondent published the AI Document as part of the Adelaide Institute’s Newsletter 346 and under a link “About the Adelaide Institute” on the pages of the Newsletters/Archive sections for newsletters 50-88, 93-112 and 113-128 which was made accessible to the public on the Adelaide Institute website, www.adelaideinstitute.org. That publication was a contravention of the September 2002 orders and a breach of the November 2007 undertaking. I find the charges proved.

Charge 7 and Charge 18

198. Charges 7 and 18 also raise the publication of 11 December 2007 which was deposed to in Mr Jones’ affidavit sworn on 13 December 2007. The applicant deposed in his affidavit that on 11 December 2007 he accessed the Adelaide Institute website where he observed that of the statements of fact in Schedule A:

(i) items 18, 68-81, 94-101, 110-117, 119, 143 and 144 had been masked;

(ii) items 1-17, 19-67, 82-93, 103-109 and 120-142 had been deleted;

(iii) item 102 could not be accessed.

199. He further observed that the masked items could be read by moving the cursor over the masking. The complete documents had not been removed from the website.
200. By publishing the statement of facts in those items, the respondent disobeyed the September 2002 orders made by Branson J because:

(1) items 18 and 68-81 conveyed the imputation that there is a serious doubt that the Holocaust occurred;

(2) items 94-101 and 110-117 conveyed the imputation that it is unlikely that there were homicidal gas chambers at Auschwitz;

(3) item 119 conveyed the imputation that Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;

(4) items 143 and 144 conveyed the imputation that 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.

201. It is not necessary to set out each of the items which may be read by reference to Schedule A of the Third Further Amended Statement of Charge.
202. It follows, therefore, that the respondent has disobeyed the September 2002 orders and breached the November 2007 undertaking.
203. I find the charges proved.

Charge 8 and Charge 19

204. Mr Jones has sworn an affidavit on 25 April 2008 in which he deposed that on 24 April 2008 he accessed the Adelaide Institute website, http://www.adelaideinstitute.org, where he found and read the AI Document at three locations on that website, namely Newsletters/Archives/newsletters 50-88, Newsletters/Archives/newsletters 93-112, and Newsletters/Archives/newsletters 113-128. The documents exhibited support his evidence. The respondent did not attempt to controvert the applicant’s evidence.
205. The publication of the AI Document on the Adelaide Institute website constitutes a disobedience of the September 2002 orders and a breach of the November 2007 undertaking.
206. I find the charges proved.

Charges 9 and 20

207. These two charges also are the result of Mr Jones accessing the Adelaide Institute website, http://www.adelaideinstitute.org, on 24 April 2008. In the charges it is claimed that all four of the imputations referred to in the September 2002 were conveyed by material published on the Adelaide Institute website but the particulars to the charges only identify two imputations. I intend to proceed in accordance with the particulars.
208. Mr Jones swore an affidavit on 25 April 2008 and exhibited to that affidavit a folder of documents which was described as Exhibit “JJ3”.
209. He observed that in respect to Schedule A:

(1) part of item 36 and item 60 had been masked;

(2) items 1-35, 37-59, 61-101 and 103-144 had been deleted;

(3) item 102 could not be accessed.

210. He said that the two items 36 and 60 which had been masked could be read by moving the cursor over the masking. He said that he observed the material, being the complete documents located at the website identified in the source material of Schedule A, had not been removed from the website.
211. In addition to reading the AI Document at three locations on the Adelaide Institute website, namely Newsletters/Archive/newsletters 50-88, Newsletters/Archive/newsletters 93-112, and Newsletters/Archives/newsletters 103-128, he read a number of other documents which he exhibited as part of JJ3.
212. In particular, the applicant relies upon a number of discrete documents which are identified in Schedule C as being part of JJ3 to establish two imputations: first, that there is a serious doubt that the Holocaust occurred; and secondly, it is unlikely that there were homicidal gas chambers at Auschwitz.
213. The particulars claim that the imputation, “There is a serious doubt that the Holocaust occurred” was conveyed by the publication of the material in items 1-10 and the second imputation, “It is unlikely that there were homicidal gas chambers at Auschwitz” was conveyed by publication of the material in items 12-17 of Schedule C. This is an example of the morass of information that has been provided by the applicant in support of the charges. I will refer to some instances of the publications in Schedule C to show that in fact the evidence supports the applicant’s allegations.
214. The first document referred to in Schedule C, JJ1, pages 259-288 is in fact the Adelaide Institute Newsletter No. 262 (see also the identification under “Source”). In that document it is written:

The Hoaxoco$t Blood Libel: Achilles’ Heel of Jewist Supremacy – Prof Patrick McNalley tkuh50@tku.ac.jp, 12 September 2005

In all of world history has there ever been a sicker, shabbier, filthier blood libel than the holyhoax? With consummate understatement Butz labeled (sic) it “the hoax of the century.” Perhaps “racist blood libel of the millennia” is closer. Nothing more clearly shows how the Jewist elite has come to dominate the cattle-goyim than the way holocaustianity has become the obligatory new state religion throughout the Western world’s HOGs [Holocaust Obsessed Governments].

The Hoaxoco$t is truly the Achilles’ Heel of zio-Judaic mind control over cattle-goyim. The average UAssAer is like a panic striken (sic) rabbit mesmerized by the headlights of a propaganda steamroller. Only if Americans can be brought to see the “hoax” in holyhoax and the “costs” in the hoaxoco$t will: 1) German prisoners of conscience be released from incarceration, 2.) Palestinians be saved from genocide-on-the-installment (sic) plan, and 3.) Americans themselves be freed from the phoney fears of the haunted house of holyhoaxianity. ...

Back to the chase! Revisionists have caught the Jewist elite in flagrant lies and Semitists refuse to debate the issue. Jewists have been caught with their pants down and cannot blame any goyim-cattle and cannot claim to have simply made an honest mistake. And this Holocaust crime/libel is not just a peripheral part of the Judaic-Zionist-Semitist war against the Gentiles. ...

Jewist prophet-profiteers have gone out on a huge limb with their pack of lies and must not be allowed to retreat at their leisure. They must be confronted with their current pack of lies and have that limb sawed off. The perduring (sic) constant and hardcore Holocaust blood libel is: “6,000,000 Jews were murdered.” This outrageous hyper-libel goes far beyond claiming that they were simply killed, merely died, or just disappeared. How were they murdered? Various fanciful answers [ranging from the utterly ludicrous to the totally unfounded] have been given. The story keeps changing but has never, ever been proven except in the minds of the already convinced. Where were they murdered? The answers depend upon which holocaustomaniac you ask and when you ask.

215. The second document referred to in Schedule C, JJ1, pages 405-416 is Adelaide Institute Newsletter No. 282. In that document it is written:

The ‘Holocaust’ is a myth/lie

Talking about the ‘Holocaust’ in the Holy City of Mashhad

- and testing the limits of free speech in so-called ‘western

democracies’

I began my talks always prefacing it with the following disclaimer that is also on our website:

“I am operating under a Federal Court of Australia Gag Order that prohibits me from questioning/denying the three pillars on which the ‘Holocaust’ story/legend/myth rests:

1. During World War II, Germany had an extermination policy against European Jewry, 2. of which they killed six million, 3. using as a murder weapon homicidal gas chambers. It is almost impossible to discuss the ‘Holocaust’ with such an imposed constraint. I therefore am merely reporting on matters that I am not permitted to state. For example, if I state the ‘Holocaust’ is a lie, the gas chambers did not exist, or six million Jews never died, then I claim that I am merely reporting what Professors Butz/Faurisson, and others, are stating in public.”

216. In the third document in Schedule C, JJ3, at Tab 1, page 1, which is in fact Adelaide Institute Newsletter No. 365, Dr Toben wrote:

DID I bend to Jewish pressure on this day as I stood before Justice Michael Moore in Court 2, Federal Court of Australia, Adelaide? That is the question – and email responses from supporters indicate that the perception is clear: I did bend. My response is that Jeremy Jones did not penetrate me because I merely apologized to the court and not to Jones or to Australia’s Jewish community. I did not RECANT about my homicidal gassing views!

What happened last night? Around 19:00 hours my legal counsel sent me a consent court order proposal wherein I was to acknowledge and apologize for having been in breach of those all-too-vague Justice Branson Court Orders of 17 September 2002. I accepted the fact that I shall always apologize if I have been rude and crude in my language use but cannot apologize if I am factually telling the truth, as I did in the Orders A and B about the ‘Holocaust’ and the ‘Auschwitz homicidal gas chambers’.

217. In the fourth document in Schedule C, JJ3, Tab 2, page 18 there is included, “So unlike the phony (sic) Jewish Holohoax of which there are absolutely no documents, signatures etc to prove it ...”.
218. It is unnecessary to identify each document and what is contained in each document. The documents to which I have already referred convey the imputation that “there is serious doubt that the Holocaust occurred”.
219. The applicant relies on items 12-17 in Schedule C for the claim that the applicant has published material that conveys the imputation that, “It is unlikely that there were homicidal gas chambers at Auschwitz”.
220. Document No. 12 in Schedule C is the Adelaide Institute Newsletter No. 368. The author writes:

However, despite propaganda conceived by Jewish supremacists in the form of Holocausts (sic) movies made weekly – still, even 60 years after the war’s end – there were no homicidal gas chambers.

...

The reason for the film not being shown is that it presented some controversial information about WWII: It shows brothels, swimming pools with diving boards, post offices, libraries, musicals, plays, comedies, et cetera—with all of this taking place at “death camps” such as Auschwitz during the time that Jewish propagandists contend that they were being “gassed” – with millions of “survivors,” who were somehow impervious to this poison gas and who will attest to such policies to this day.

...

In the film, Töben says “alleged” concentration camp gas chambers were used to save lives by disinfecting prisoners and that the Holocaust was a fabrication.

“You are not supposed to learn these historical facts, which are contained in this video,” Töben said in the film.

According to the Adelaide Institute website, Töben has faced litigation and is under a federal gag order in Australia.

221. In the second item (JJ3, Tab 4, pages 3-13), which is Adelaide Institute Newsletter No. 370, the author, writing of Holocaust Revisionism, says that there were no homicidal gas chambers.
222. The two items to which I have referred and the further items in Schedule C convey, as the applicant claims, the imputation, “It is unlikely that there were homicidal gas chambers at Auschwitz”. It is not necessary to identify each of the further statements in the other items in Schedule C.
223. I find that the applicant has proved the two charges of contempt, numbered 9 and 20.

Charge 10 and Charge 21

224. Charges 10 and 21 relate to Mr Jones accessing the Adelaide Institute website on 23 May 2008. He has deposed in an affidavit, sworn on 23 May 2008, that on that day he accessed the Adelaide Institute website and read the AI Document as part of a document headed “Affidavit of Frederick Toben”, dated 2 May 2008; in a link to the page Newsletters/Archives through the link “newsletters 93-112” and the link to the page Newsletters/Archives through the link “newsletters 113-128”.
225. No issue is taken with Mr Jones’ evidence. I am satisfied that the respondent published on the World Wide Web the AI Document on 23 May 2008 in contravention of paragraph 3(a) of the September 2002 orders and in contravention of the November 2007 undertaking which was to comply with the September 2002 orders and to remove all files from the material identified in the undertaking.
226. I am satisfied, therefore, that charges 10 and 21 have been proved.

Charge 11 and Charge 22

227. The applicant claims that the respondent is guilty of contempt in publishing information which gave rise to the four imputations, the subject matter of the September 2002 orders.
228. The respondent relies upon Mr Jones’ affidavit of 23 May 2008 which exhibited JJ4, which itself contains 25 separate documents running into many hundreds of pages.
229. The particulars, however, to the charge identify only two imputations, being the imputation that “there is a serious doubt that the Holocaust occurred” and the imputation that “it is unlikely that there were homicidal gas chambers at Auschwitz”. The particulars rely on further documents in exhibit JJ4. For the first of those imputations, the applicant relies on all of the documents in items 1-18 in Schedule D. For the second imputation, the applicant relies upon all of the documents in items 19-29 in Schedule D. In the “key” to the charges the applicant relies upon JJ5 [10], Exhibit JJ4, Tabs 6-11, 13-24 [St Ch Sch D].
230. This is another example of the unsatisfactory nature in which the applicant presented his case by leaving it to the Court to read voluminous material to ascertain whether the two imputations complained of were made out.
231. I am satisfied that the information which is identified in Schedule D to the Third Further Amended Statement of Charge was published on the websites identified in Schedule D and in the documents identified in Schedule D. The website is that of the Adelaide Institute.
232. In Newsletter No. 310 (item 1 in Schedule D), which was published on the website http:www.adelaideinstitute.org/newsletters/n310.htm, Dr Herbert Shaller is reported as saying at the Tehran International Conference:

Review of the Holocaust: Global Vision:

The fact of the guilt of the Germans for the Holocaust has not yet been properly proven”

233. In Newsletter No. 317 (item 2 in Schedule D), which was published on the website http:www.adelaideinstitute.org/newsletters/n317.htm, Dr Toben has written:

What a pity that we are not permitted openly to thrash out such a massive allegation that afflicts Germans to this day, namely that Germans systematically exterminated European Jewry in homicidal gas chambers, in particular at Auschwitz and Treblinka Concentration Camps.

234. In Newsletter No. 343 (item 3 in Schedule D), which was published on the website http:www.adelaideinstitute.org/newsletters/n343.htm, it is published in a document headed “The Alleged Homicidal Gas Chambers at Auschwitz”:

Anyone who claims that homicidal gas chambers existed at the Auschwitz Concentration Camp, makes a terrible allegation against Germans, and those of German descent, that during World War II Germans exterminated European Jewry et al, therein. Individuals who make such an allegation owe it to the world to answer Dr Robert Faurisson’s challenge:

“Show me or draw me the Auschwitz homicidal gas chambers!”.

To date not a single person has produced evidence that proves these huge chemical slaughter houses ever existed.

What has been done, though, is to stifle debate on this contentious historical matter by developing laws that criminalise those individuals who courageously ask:

“Show me the murder weapon!”.

235. The article continues in similar vein and does, as is alleged, raise the imputation that there is a serious doubt that the Holocaust occurred.
236. In Newsletter No. 356 (item 4 in Schedule D), which was published on the website http:www.adelaideinstitute.org/newsletters/n356.htm, it is written:

THE LEGAL BATTLE BEFORE THE FCA

- in an attempt to silence those who refuse to believe in the Jewish Holocaust-Shoah. The importance of this legal battle rests on a simple fact: the enforcing of the Holocaust-Shoah belief is a direct attack on our civilisation’s basic values – TRUTH and HONESTY.

237. In Newsletter No. 357 (item 5 in Schedule D), which was published on the website http:www.adelaideinstitute.org/newsletters/n357.htm, it is written:

The onslaught against the defenders of truth and honesty is an attack on any questioning or doubt of the Jewish Holocaust, any suggestion that it may not have occurred or that any of the evidence presented to establish the truth of the Holocaust may be fake.

In addition, the attack is meant to protect all false histories supporting the Jewish Holocaust. It continues to be claimed that six million Jews were slaughtered by the Germans, even though some Jewish organisations with access to reliable information, for several years now, have disputed the assertion of six million slaughtered Jews.

238. In the Adelaide Institute Newsletter No. 371 (item 6 in Schedule D), which was published on the website http:www.adelaideinstitute.org/newsletters/n371.htm, it is written and attributed to Debra Lipstadt:

David Irving has always believed in limited gassings and hence he is a holocaust believer. I refuse to believe, without physical proof, in the systematic extermination of six million Europeans Jews in homicidal gas chambers. The holocaust believers have never proven their case but instead use legal means to silence those who refuse to believe in the Jewish Holocaust-Shoah, Frederick Toben, Adelaide Institute.

239. There are 12 further references, most of which are in newsletters of the Adelaide Institute but some are simply on the website which contain information of the same kind which give rise to the imputation that “there was a serious doubt that the holocaust occurred”.
240. It is not necessary, and would only be tedious to do so, to set out those further statements. It must be remembered that no submission was put by the respondent either that the information was not published on the Adelaide Institute website or that the information which was published, and which is exhibited to the affidavits of Mr Jones and Mr Lewis, did not give rise to the imputations which were the subject of the September 2002 orders.
241. However, I will address some of the evidence which was relied upon by the applicant to establish that the respondent had breached the September 2002 orders and the November 2007 undertaking by publishing information which raised the second imputation that “it is unlikely that there were homicidal gas chambers at Auschwitz”.
242. In Adelaide Institute Newsletter No. 343 (item 19 in Schedule D), which was published on the website http://www.adelaideinstitute.org/newsletters/n343.htm, it is written:

Think on these things when you are confronted by the claim that homicidal gas chambers were operated at the Auschwitz concentration camp.

243. In Adelaide Institute Newsletter No. 356 (item 20 in Schedule D), which was published on the website http://www.adelaideinstitute.org/newsletters/n356.htm, there is published a letter from Dr Toben to the editor of The Daily Mail dated 20 September 2007 in which Dr Toben writes:

In May 2002 Fritjof Meyer stated that Krema II Auschwitz-Birkenau did not contain homicidal gas chambers but that gassings occurred in Bunker II – farm house outside of the concentration camp complex. Again, Meyer’s (sic) reduces the victims number from 1.-1.5 million to 500,000 thousands (sic).

244. There are similar publications in each of the other newsletters referred to in Schedule D to the Third Further Amended Statement of Charge which were published, according to the evidence of Mr Jones, on the websites identified in Schedule D.
245. Those publications, individually and collectively, raise the imputation that “it is unlikely that there were homicidal gas chambers at Auschwitz”.
246. Again, it would be tedious to repeat each of the publications in these reasons.
247. I find charges 11 and 22 proved.

Charge 12 and Charge 23

248. These charges relate to the publication of the AI Document on 20 June 2008 on the Adelaide Institute website.
249. Mr Jones has deposed in an affidavit sworn on 23 June 2008 he accessed the Adelaide Institute website, http://www.adelaideinstitute.org, and read the document headed “About the Adelaide Institute” and accessed the home page of that website. He clicked on the link to “Newsletters” which took him to a page which listed Newsletters 178-399 where he clicked on “Archive”. That took him to a “Newsletter Archive” page where he clicked on “Newsletters 50-88” which took him to a page where he read the AI Document. He has exhibited that document to an affidavit which he swore on 23 June 2008. It is a copy of the AI Document. His evidence has not been controverted or challenged.
250. I find that charges 12 and 23 have been proved and that, contrary to the September 2002 orders and the November 2007 undertaking, the respondent published the AI Document on the Adelaide Institute website.

Charge 13 and Charge 24

251. Charges 13 and 24 relate to two separate publications of the AI Document on the Adelaide Institute website on 24 June 2008.
252. On 24 June 2008 the applicant’s solicitor, Mr Lewis, accessed the Adelaide Institute website, http://www.adelaideinstitute.org, and read, so he deposes in his affidavit of 26 June 2008, multiple copies of documents headed “About the Adelaide Institute”. He accessed the home page of the website and clicked on “Newsletters” which took him to a page listing “Newsletters 178-399” where he clicked on “Archive” which then took him to a “Newsletter Archive” page where he clicked successfully on “Newsletters 50-88”, “Newsletters 93-112” and “Newsletters 113-128”. He has exhibited the documents which he accessed. I am satisfied that he has accessed on a number of occasions the AI Document on the newsletters to which he referred in his affidavit.
253. He said that he returned to the home page on the Adelaide Institute website and clicked on “Toben Legal Appeal” which took him to a page under a heading “2007 TOBEN’S LEGAL BATTLE – since 1996” where he clicked on “Affidavit – 2 May 2008” which took him to an unsigned copy of Mr Toben’s affidavit, paragraph 6 of which sets out the AI Document.
254. I am satisfied that charges 13 and 24 have been proved, it having been established that the AI Document was published on the Adelaide Institute website in the circumstances deposed to by Mr Lewis in his affidavit of 26 June 2008 in contravention of the September 2002 orders and the November 2007 undertaking.

Charge 14 and Charge 25

255. It is alleged in these charges that on 24 June 2008 the respondent is guilty of contempt in that, in disobedience of the September 2002 orders and in breach of the November 2007 undertaking, the respondent published on the Adelaide Institute website material which conveyed the imputations which were the subject of paragraphs 2 and 3 of the September 2002 orders.
256. The particulars of the charge limit the charge to the two imputations that “there is a serious doubt that the holocaust occurred” and that “it is unlikely there were homicidal gas chambers at Auschwitz”. The material which supports the charge that those imputations were conveyed are identified in Schedule C to the Third Further Amended Statement of Charge and exhibited to the affidavit of Mr Jones sworn on 25 April 2008.
257. This is some of the same material which was the subject of charge 9 and charge 20. For these charges the applicant relies on items 7-9 in Schedule C for proof of the first imputation, and on items 14-17 in Schedule C for the second imputation.
258. On this occasion, however, it was Mr Lewis who viewed the material on 24 June 2008. Mr Lewis has deposed to the circumstances in which he viewed the material in his affidavit sworn on 26 June 2008. Items 7, 8 and 9 of Schedule C are respectively Tabs 5, 6 and 7 of JJ3, being the exhibit to Mr Jones’ affidavit of 25 April 2008 (styled by the applicant JJ4). Mr Lewis has deposed to reading those documents on the Adelaide Institute website on 24 June 2008.
259. Items 14-17 of Schedule C which are relied on as proof that the second imputation was conveyed are respectively Tabs 5, 7, 8 and 6 of JJ3. Again, Mr Lewis has deposed to reading those documents on 24 June 2008 on the Adelaide Institute website.
260. I did not discuss those particular documents in considering charge 9 and charge 25.
261. For item 7 of Schedule C all 28 pages of the exhibit are relied on. I am therefore bound to trawl through the document to look for any statement that might convey the first imputation. On page 1 of that document it is written:

How can anybody seriously believe that the Holocaust DID happen? Considering all the absurdities, impossibilities, contradictions, how could all these witness tales ever be believed? And how could anybody, who has his five senses together, believe that such a thing could have happened? Thousands of historians and other researchers, hundreds of prosecutors, judges, and jurors – have they all lost their minds? Or were they all so brainwashed by wartime propaganda or trembling in fear of the Jews that they did not dare to rock the boat?

The document concludes at page 22:

1. As stated in the introduction, it is not possible in the available time to present a detailed report on an issue such as the alleged ‘Holocaust’ murder weapon. Yet even a limited discussion of the gassing claims indicates the gassing stories to be mere puffery – the product of a feverish pathological mind filled with pure hatred, mostly directed against Germans and anything German, and greed, and if not that, then certainly the product of an appalling state of ignorance of natural and chemical processes.

2. In my talk I tried to present a brief overview of the homicidal gas chamber thesis as it applies to Auschwitz and Treblinka concentration camps, and with the help of a model show that technically the claims made by ‘Holocaust’ believers about the mass gassings and burnings are a physical impossibility.

3. This fact alone justifies the Iranian President Dr Mahmoud Ahmadinejad’s aim in holding the conference, to urge historians and scientists to investigate the whole ‘Holocaust-Shoah’ matter in a rational way without fear or favour. The urgency is there because the ‘Holocaust’ has distorted our understanding of world history and brought injustice and unimaginable suffering to the Palestinians.

262. For item 8 of Schedule C the applicant relies upon all 49 pages. At page 4 the claim cited from page 1 of item 7 is repeated. The rest of the document is mainly pictorial with some comment. The thrust of the comments convey the imputation that “there is a serious doubt that the Holocaust occurred”.
263. Item 9 of Schedule C (Tab 7) is said to be a transcript of an interview of Dr Toben published in the “Tehran Times”. It is reported on page 1 of the document that Dr Toben was asked and replied:

Q: The Iranian president said that he thinks that the Holocaust is a myth. However, he also said some European countries insist that millions of innocent Jews were killed during the Second World War by Hitler, and asked why the Europeans don’t give part of their land to the Jews if they are correct. What is your view?

A: The Holocaust is a lie because none of its three main pillars on which it rests are factually true or proven.

On page 2 Dr Toben is quoted as saying:

The international anger against the Iranian president’s words clearly expressed the view that the post-World War Two Order is held together by the ‘Holocaust’ myth. You begin by stating a fact – that Jews were moved out of Europe. Then you exaggerate the suffering such uprooting causes to individual Jews – the suffering is not denied by anyone. Then outright lying occurs – that Jews were gassed because Hitler hated them. World War Two was more than Hitler and the Jews. Hitler disconnected the German economy from international predatory capitalism – and bartered freely with nations that refused to be locked into debt finance – which was mainly controlled by International Jewish Finance.

Because the Holocaust is a lie, it must be protected legally – the hysterical reactions by world leaders indicates the Zionists have a strong hold on these individuals and governments. The Holocaust has become a religion – in European countries you can criticise and defame Jesus, Mary, etc. but you cannot criticise the Jews and their ‘Holocaust’.

264. I am satisfied that Mr Lewis viewed material on the Adelaide Institute website on 24 June 2008 which conveyed the imputation that “there is a serious doubt that the Holocaust occurred”.
265. Item 14 of Schedule C is relied upon to support the assertion that the second imputation was conveyed. Item 14 is the same document as item 7. The document is subtitled: “The Alleged Murder Weapon – Homicidal Gas Chambers”. It is said on page 6:

It was claimed that about 15,000 Jews were gassed in Krema I. Up to 1996 this claim remained authentic, but then ‘Holocaust’ historians, professors Robert Jan van Pelt and Deborah Dwork, stated that mass killings in this crematorium never took place, and that the facilities were restructured to symbolically represent what was happening at Auschwitz II, Krema II in particular.

266. It is argued in the document that it was “technically impossible” to gas the number of persons said to be gassed each day. The document argues that it was impossible neither to gas nor cremate so many people as is claimed.
267. Item 15, which is the transcript of the interview of Dr Toben in the Tehran Times, is also relied upon for proof that the second imputation arises. After Dr Toben is reported as saying the Holocaust is a lie, he is reported as saying:

1. Germany – Hitler systematically exterminated European Jewry. There is simply no proof of this claim – it was a transfer of Jews, and together with Zionist collaboration, German Jews arrived in Palestine – with their property. Others were moved out of German territory – and Auschwitz was a transit camp.

2. The killing was done in huge chemical slaughterhouses – homicidal gas chambers. This is a technical impossibility because you can work out how long it would take, for example, to kill one million people – the size of a city like Adelaide – without anyone finding out about it. The world soon found out President Bush lied about Iraq’s Weapons of Mass Destruction – that lie didn’t last even one year.

268. Item 16 of Schedule C (Tab 8, JJ3) contains a document headed: “Dr Frederick Toben’s Disclaimer”. In that document it is written:

For example, if I state the >Holocaust< is:

1. a lie;

2. six million Jews never died, or

3. the gas chambers did not exist, then I would claim that I am merely reporting on what expert Revisionists such as Professors Butz/Faurisson, et al, are stating in public. Anyone who refuses to believe in these three pillars of orthodoxy will face a world-wide group of enforcers who will use any means to destroy dissenting voices. The problem is that these pillars are not set in concrete, though attempts at setting them in legal concrete have been under way for decades – without success.

269. Item 17 of Schedule C is the same document as is identified as Item 8 to which I have already referred in respect to the claim that the first imputation is conveyed by the material.
270. I am satisfied that Mr Lewis viewed material on the Adelaide Institute website on 24 June 2008 which conveyed the imputation that “it is unlikely that there were homicidal gas chambers at Auschwitz”.
271. I find charges 14 and 25 proved.

Charge 15 and Charge 26

272. These charges allege that the respondent was guilty of contempt in that he published to the public on 25 June 2008 on the World Wide Web material which conveyed the four imputations, the subject matter of the September 2002 orders.
273. However, the particulars again rely only upon the publication of material which conveyed the imputations that “there is a serious doubt that the Holocaust occurred” and “it is unlikely that there were homicidal gas chambers at Auschwitz”.
274. The material relied on for the first imputation is items 1-18 of Schedule D and in respect of the second imputation items 19-29 of Schedule D.
275. Mr Lewis has deposed in his affidavit of 26 June 2008 that he accessed the Adelaide Institute website on 25 June 2008 and read each of the documents which are contained in Exhibit JJ3 to Mr Jones’ affidavit of 25 April 2008 (JJ4).
276. The information relied upon in the particulars is the same information which was relied upon for the particulars to charge 11 and charge 22. There is no need to repeat the publications which I have already found establish that both of the imputations were conveyed.
277. For the reasons given in relation to charges 11 and 22, I find charge 15 and charge 26 have been proved.

Charge 27

278. The respondent undertook in November 2007 to remove all files and materials identified in the Second Further Amended Statement of Charge from http://adelaideinstitute.org and from all other World Wide Websites, the content of which was controlled by him or the Adelaide Institute by no later than 4.00 pm on 5 December 2007.
279. The undertaking referred to the statements of fact which were accessible on the websites, which were identified in Schedule A to the Second Further Amended Statement of Charge filed on 2 November 2007.
280. On 13 December 2007 the applicant swore an affidavit in which he said that he accessed the Adelaide Institute website on 11 December 2007 and observed that:

(1) items 18, 68-81, 94-101, 110-117, 119, 143 and 144 had been masked;

(2) items 1-17, 19-67, 82-93, 103-109 and 120-142 had been deleted; and

(3) item 102 could not be accessed.

281. He further deposed that the material which had been masked in (1) above could be read by moving the cursor over the masking. Moreover, he observed that the material, being the complete documents which were located at the website as set out in the second column of Schedule A under the heading “Source”, had not been removed from the website. Thirdly, he read the AI Document as part of Adelaide Institute “Newsletter 346”. He also found and read the AI Document at three further locations on the Adelaide Institute website, namely Newsletters/Archives/Newsletters 50-88, Newsletters/Archives/Newsletters 93-112, and Newsletters/Archives/Newsletters113-128.
282. Mr Jones’ evidence is uncontroverted. The respondent was obliged in accordance with the undertaking noted in paragraph 6(b) of the November 2007 undertakings to remove the material which Mr Jones observed on the Adelaide Institute website by 5 December 2007. I am satisfied that the applicant has established that the respondent has breached his undertaking given in November 2007 in respect of the information contained in items 18, 68-81, 94-101, 110-117, 119, 143 and 144, and the AI Document insofar as the latter document was contained in the Adelaide Institute Newsletter 346 and was accessible in the Newsletters/Archives sections for newsletters 50-88, 93-112 and 113-128.
283. In making that finding, of course, I not only rely upon the evidence of Mr Jones insofar as he said he accessed the website and viewed the material but also the evidence to which I have earlier referred where Dr Toben made it plain very shortly after 27 November 2007 that the apology which he had given to the Court was withdrawn and that he would not comply with the undertaking given on 27 November 2007.
284. For all those reasons, I am satisfied beyond reasonable doubt that Mr Jones viewed that which he deposed to on 13 December 2007. I find the charges proved.
285. I should say that this charge relies upon the same material as charge 18. As already noted, that charge is for the breach by the respondent of the November 2007 undertaking as recorded in paragraph 6(a) of the November 2007 orders. Paragraph 6(a) of the November 2007 orders required the respondent to comply with the orders made by Justice Branson which included, of course, an obligation to remove the material mentioned in paragraph 2(a) of the September 2002 orders. The material in charge 18 is the material referred to in charge 7 which is the same material in this charge.

Charge 28

286. This charge relates to a breach of the same undertaking given by the respondent as charge 27, except on this occasion the charge relates to the failure by the respondent to honour his undertaking as at 24 June 2008.
287. Mr Lewis swore an affidavit on 26 June 2008 in which he deposes that on 24 June 2008 he accessed the Adelaide Institute website and, by way of link, accessed the pages of the Newsletters/Archives section for newsletters 50-88 and 93-112.
288. By reason of access to both of those sites, he obtained access to the AI Document. Such access was available to the general public.
289. In my opinion, Mr Lewis’ evidence establishes to the required level of satisfaction that the respondent breached the November 2007 undertaking as recorded in paragraph 6(b) of the notes to the orders made by Moore J on that date.
290. I am also satisfied by the evidence earlier referred to that Dr Toben publicly claimed, shortly after 27 November 2007, that the apology which he had provided to the Court on 27 November 2007 was withdrawn and that he would not comply with the undertakings given to Moore J on that date.
291. In my opinion, that evidence supports the uncontroverted evidence of Mr Lewis.
292. Charge 28 has been proved.

Contumacy

293. I have found each of charges 5 to 28 proved beyond reasonable doubt. Where the charge alleged that imputations were conveyed by the publication of the material on the Adelaide Institute website, it must be understood that I have found the charge proved in accordance with the particulars and, if those particulars raise only two of the four imputations, in relation to those two imputations.
294. I should address the question of contumacy because it is important in classifying the contempt and in considering any penalty to determine whether the disobedience to the order has been wilful or contumacious: Mudginberri Station [1986] HCA 46; 161 CLR 98 at 105-107 and 111-113.
295. I am satisfied beyond reasonable doubt that the separate publications on the Adelaide Institute website of the material which has established each of the charges which I have found proven was wilful and contumacious. The fact that the AI Document has appeared regularly on the Adelaide Institute website on each of the days accessed and can be accessed through a number of the Adelaide Institute newsletters is evidence of a wilful and contumacious disobedience of the September 2002 orders and the November 2007 undertaking.
296. Moreover, the number of statements which have been identified by the applicant in support of the charges giving rise to the imputations, in particular imputations 1 and 2 of the September 2002 orders which I have found proven on the various dates upon which the Adelaide Institute website was accessed, shows a wilful and contumacious disregard of the September 2002 orders and the November 2007 undertaking.
297. Dr Toben’s behaviour immediately following the 27 November 2007 hearing before Moore J and the article published in the Australian Jewish News of that hearing is further evidence of his wilful and contumacious disobedience of the September 2002 orders and the November 2007 undertaking. His correspondence with the applicant and Moore J’s associate is further evidence of contumacy. He said there that he was “withdrawing from the Consent Agreement and although I have begun deleting material from the website, as part of the undertaking given to the Court and to the Applicant, I am now stopping the action”. He was advised by his barrister to comply with the September 2002 orders and with the terms of the agreement but he replied:

There are now too many moral and legal principles at stake here, which a simple deletion of the material would merely further compromise, something I am not prepared to accept without having them clarified in open court.

298. His conduct at that time is one of publicly expressed deliberate and calculated disobedience to orders made by this Court and undertakings given to the Court.
299. Moreover, some of the publications themselves establish the contumacy of his conduct. Dr Toben has published material on a number of occasions which shows that he does not accept the underlying reasons for the September 2002 orders which were confirmed by the Full Court. He apparently does not accept that the applicant should be entitled to call in aid the Court to restrain him from publishing material which is vilifactory of the Jewish race by reason of their race. He is also not prepared to accept that the Court has made its decision that the publication of the AI Document and of material which conveys the imputations in the September 2002 orders is conduct which is rendered unlawful by a valid Act of the Parliament of the Commonwealth.
300. The Courts have held, but his conduct shows he does not accept, that the freedom of speech citizens of this country enjoy does not include the freedom to publish material calculated to offend, insult or humiliate or intimidate people because of their race, colour or national or ethnic origin. His conduct has been proved to be wilful and contumacious because he has steadfastly refused to comply with a law of the Commonwealth Parliament and refused to recognise the authority of this Court.
301. I am satisfied therefore that the applicant has proved that the conduct in publishing the information which was relied upon for proof of charges 5 to 28 was a wilful and contumacious contempt of court. It is conduct that amounts to criminal contempt.

Conclusion

302. I shall dismiss the applicant’s notices of motion, make the orders under O 37 r 2, dismiss charges 1 to 4 and make a declaration in respect of the charge of contempt.
303. That leaves for consideration the question of penalty upon which I shall hear the parties.
     
     

Associate:

Dated: 16 April 2009

Annexure - Third Further Amended Statement of Charge:

354.pdf