17 April 2009

News from Down Under: JONES v TOBEN Decision

Hot off the presses, Australian Holocaust-denier "Dr." Toben has been found in contempt of an earlier ruling that Toben delete, "
-->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."

Suffice it to say, the order was ignored by Toben which resulted in his current legal issues (click here for the full decision):
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.
Is Toben pretty much screwed? 

Yes, he's pretty much screwed. 

Looks like Fromm is going to have to find a new pretext to travel to Oz again.

1 comment:

AuntieFa said...

another interesting link I found in my travels through cyberspace. My apologies if you've already seen this. Have a great weekend, AuntieFa