Anneliese Rothenberger and Hermann Prey – from Arabella by Richard Strauss –
Holocaust denier’s suit thrown out as ‘abuse of process’
THE AUSTRALIAN DECEMBER 1, 2015 12:00AM ·Chris Merritt Legal Affairs Editor Sydney
Notorious historian Fredrick Toben wanted to use a defamation case against The Australianas a platform to argue the Holocaust never happened and to air his anti-Semitic views, the NSW Supreme Court ruled yesterday as it dismissed his legal action as an abuse of process.
The suggestion that Dr Toben, an undischarged bankrupt, had brought defamation proceedings to vindicate his reputation was “risible”, said judge Lucy McCallum. “On the strength of his own writings, it is difficult to conclude otherwise than that Dr Toben has a clear agenda to create a public forum for disputation of the history of the Holocaust and for the expression of anti-Semitic views.”
His legal action over an article published in The Australian was “a cynical misuse of the process of the court which must be stopped”, the judge said.
Dr Toben, represented by Clive Evatt, had brought defamation proceedings against the editor of The Australian, Clive Mathieson, senior reporter Christian Kerr and former Greens leader Christine Milne over a 2013 article that carried the headline: “Split in the Greens over Holocaust denier”.
Senator Milne had been quoted as saying the Greens rejected anti-Semitism and that she was appalled people like Dr Toben fabricated history and spread anti-Semitism.
An earlier article had revealed NSW Greens MP David Shoebridge had invited Dr Toben to a party fundraiser and rescinded the invitation when he became aware of Dr Toben’s “extreme reputation”.
Justice McCallum found that Dr Toben’s own evidence under cross-examination persuaded her he had not the least interest in vindicating his reputation against imputations that he fabricated history about the Holocaust, was a Holocaust denier and was an anti-Semite with a racist anti-Jewish agenda who had been jailed in Germany and Australia.
“The defendants have established to my satisfaction that Dr Toben seeks by these proceedings to manipulate the process of the court to create a forum in which to assert the very views by the attribution with which he claims to have been defamed.”
She noted Dr Toben had been banned from expressing such views by an earlier Federal Court ruling when he was found to have breached section 18C of the Racial Discrimination Act over material published by his Adelaide Institute. The Executive Council of Australian Jewry had complained that material on the institute’s website was “malicious anti-Jewish propaganda”.
Dr Toben was jailed for three months in 2009 on 24 counts of criminal contempt after he breached Federal Court orders preventing him republishing that material.
The judge said many readers would regard material published by the institute “as being openly supportive of Nazi leader Adolph Hitler and openly anti-Semitic”.
The material covered by the Federal Court’s orders included anything that raised doubts about the existence of the Holocaust or that gas chambers were used at Auschwitz, asserting that Jewish people have limited intelligence if they challenge Holocaust denial and had exaggerated the number of Jews killed during World War II.
Justice McCallum found yesterday that there had been a shift in Dr Toben’s language during the case and he appeared to deny he held any views on the Holocaust and was “merely a philosopher” interested in “philosophical discourse”. She rejected this as “cynical and disingenuous”.
“It is a transparent rhetorical device in which Dr Toben’s own anti-Semitic views are deliberately attributed to a straw man … so as to enable Dr Toben to record views he plainly espouses on a pretended lawful basis,” she said.
She noted that as recently as last December he had published material on his website questioning the history of the Holocaust.
Justice McCallum issued a permanent stay over the proceedings and had not ruled on costs.
- Supreme Court New South Wales. Decision: https://www.caselaw.nsw.gov.au/decision/565b9345e4b0eaaf45af00de
Portrait of a Philosopher 1997
Ernst Zündel in Conversation with Dr Fredrick Töben