24 Nov 2016

Damaged reputation, or mere soapboxing? Knocking out defamation claims as an abuse of process

By Ian Bloemendal, Nick Josey

If the proceeding is being maintained for a political, social or otherwise collateral purpose, and not to vindicate a plaintiff's reputation, it may be appropriate to apply to permanently stay the proceeding.

When faced with a defamation claim, it can be prudent to closely assess the true purpose behind the proceedings. If the true purpose is not vindication of the plaintiff's reputation, it opens the door for an application to strike out or stay the claim on the basis that the proceeding is an abuse of process.

This is what happened in Toben v Nationwide News Pty Ltd [2016] NSWCA 296, where the New South Wales Court of Appeal dismissed the Appellant's appeal against an order permanently staying his defamation proceedings on the basis that they were an abuse of the Court's process.

Dr Toben sues The Australian

Dr Fredrick Toben had commenced proceedings in relation to an article that The Australian published in June 2013, in both the print and online versions of the newspaper, alleging that it made a number of defamatory imputations about him.

The article was headlined "Split in Greens over Holocaust denier". It reported on the withdrawal of an invitation that had been made to Dr Toben by a member of the NSW Parliament to attend a political fundraising event. The relevant part of the article said:

"The Australian revealed yesterday Dr Shoebridge invited Dr Toben, who has served prison time in Australia and Germany for his Holocaust denial and anti-Semitic activities – to a fund-raising event for Gaza in April. Dr Shoebridge said the invitation was rescinded when he became aware of Dr Toben’s extreme views ... “The Australian Greens totally reject and condemn anti-Semitism ... It is abhorrent. We condemn unreservedly Holocaust denials. It has no place anywhere in Australia society”, Senator Milne said. “The horrendous consequences of the Holocaust are still being felt around the world and I am appalled that people like Dr Toben engage in fabrication of history and ... spread and engage in anti-Semitism.”"

Dr Toben argued that this conveyed the following defamatory imputations:

  • that he was a "Holocaust denier";
  • that he was anti-Semitic;
  • that he had fabricated history about the Holocaust; and
  • that he had spent time in prison in Australia and Germany for anti-Semitic activities, and for his Holocaust denial.

Vindicating Dr Toben's reputation, or just giving him a forum?

Nationwide News Pty Ltd applied to have the proceedings permanently stayed on the basis that Dr Toben's purpose was not to vindicate his reputation, but to use the proceedings to express his views on the Holocaust.

It presented evidence of Dr Toben's history of commentary on the Holocaust, including previous proceedings involving those writings:

in 2000, Dr Toben was found to have breached section 18C of the Racial Discrimination Act 1975 (Cth) through his writings, and had been ordered not to publish his views regarding the "true" meaning of the Holocaust again;

  • at least three times following that order, Dr Toben was found to have acted in contravention of the direction not to publish such views, resulting in an eventual three-month imprisonment for contempt in 2009; and
  • in 2012, Dr Toben commenced proceedings against the initial complainant in relation to the complaint that led to the order in 2000, alleging an article published on the Internet regarding his history of commentary on the Holocaust was defamatory on similar grounds to this proceeding. That proceeding was found to be an abuse of process.

In response, Dr Toben argued that:

  • he has not denied that there was a Holocaust implemented by the Nazi regime mainly against Jews but also against communists, socialists, homosexuals, gypsies, the disabled and any other group or category to which the Nazis took objection;
  • the number of Jewish people murdered were fewer than 6 million, possibly as few as 1.8 million; and
  • the manner in which the victims were murdered remained in question.

The Court at first instance agreed with Nationwide News. Dr Toben then sought (and was granted) leave to appeal this decision.

Divining a defamation plaintiff's true purpose

The Court observing that a proceeding will be an abuse of process where it is used for the purpose of obtaining some collateral advantage and not for the purpose for which such proceedings are properly designed. Both parties had accepted that the purposes of defamation proceedings were:

  • first, for the vindication of the plaintiff's reputation;
  • second, to receive compensation for the damaged reputation; and,
  • third, to provide consolation for hurt and distress caused by the publication.

Where there is both a legitimate purpose and a collateral purpose to commencing a proceeding, the test as to whether it amounts to an abuse of process was "whether there was a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding". Put differently ‒ but for the ulterior purpose, would the plaintiff have commenced proceedings at all?

In this case, Dr Toben had admitted in previous writings that it did not matter to him whether or not he was successful in proceedings of this variety.

The Court also noted that it was relevant that Dr Toben did not deny that he was a "Holocaust denier" and, in fact, called himself that. He did so, however, not because that he denied the Holocaust occurred generally, but because he believed it did not occur in the manner that is more commonly understood by the greater public. He therefore applied a particular definition to the term "Holocaust". His claim that the newspaper's statement that he was a Holocaust denier was false therefore rested upon the acceptance of his view of what the Holocaust entailed. This demonstrated two things:

  • first, that he cannot possibly have been offended by the imputation that he was a "Holocaust denier"; and
  • second, that it was clear that the key issue he wanted to debate in the proceeding was whether the expression "Holocaust" bore the more limited meaning that he contended.

While the Court accepted that it may, in certain circumstances, be necessary for a plaintiff in defamation proceedings to expound their own views on the subject matter complained of, that will depend on the facts of each case. Here the opportunity for Dr Toben to publish his views on, or seriously question, matters relating to the Holocaust (as he defined it) was clearly a collateral advantage, and viewed as the dominant purpose of the proceeding.

The appeal was therefore dismissed, and Dr Toben ordered to pay Nationwide News' costs.

When (and how) should you look for a defamation plaintiff's true purpose?

When faced with a defamation claim commenced by an individual, it may be prudent to look at what the true purpose behind the proceeding is, and determine whether the person's reputation is in fact truly placed in issue. If it appears that the proceeding is being maintained for a political, social or otherwise collateral purpose rather than for the purpose of vindication of that reputation, it may be appropriate to apply to permanently stay the defamation proceedings on the basis that they amount to an abuse of the Court's process.

Although it will not be every case where a plaintiff possibly leaves as many clues as Dr Toben did over the true motivating basis for the claim, if there is good reason to suspect that an ulterior motive is in play, it could nevertheless be worth digging further into the issue to see if anything useful turns up.  This is because if an application for a permanent stay is successful, it can serve to short-circuit the length of the proceedings, and the potential impact to one's own reputation that can arise from being the subject of such proceedings.

Undertaking the work required to uncover a plaintiff's "true purpose" could involve a significant time and cost commitment. Using Dr Toben's case as an example:

  • in order to find evidence to support its application, Nationwide News may have had to review Dr Toben's published work from 2000, when a complaint was first made; 
  • some of the material published by Dr Toben may not have been easily accessible, or may have been subject to a fee or costs to obtain access; and

Nationwide News was fortunate that it was able to uncover a public acknowledgement that the result of the proceeding did not matter to him. That ought not be expected in many cases.

The potential costs of, and likelihood of locating the kind of probative evidence relevant to prospects on a stay application, and the cost associated with pursing such an application will obviously need to be  weighed against the ultimate prospects of success on the application - together with the anticipated  downside if an ulterior purpose is not ultimately made out and the application fails.  Experience suggests that a stay application would not ordinarily be filed without first having identified persuasive evidence.

In this case, Nationwide News was successful and its own reputation may arguably have been improved as it basks in the reflection  of publicly taking a stand against a so-called Holocaust denier.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.