Toben case dismissed

Fredrick Toben. Fredrick Toben.

THE Executive Council of Australian Jewry (ECAJ) has welcomed the decision by the NSW Supreme Court to dismiss a defamation case brought by Holocaust denier Fredrick Toben.

The action – against the editor of The Australian, Clive Mathieson, senior reporter Christian Kerr, and former Greens leader Christine Milne – was in response to a 2013 article in The Australian headlined “Split in Greens over Holocaust denier Fredrick Toben”, published after Toben was invited and then disinvited from a pro-Palestinian fundraiser by NSW Greens MP David Shoebridge.

Among the defamatory imputations in Toben’s Statement of Claim were that “the Plaintiff fabricated history”, “the Plaintiff is a Holocaust denier” and “the Plaintiff is an anti-Semite” and “has a racist Jewish agenda”.

Handing down her decision this week, judge Lucy McCallum found that Toben’s purpose in commencing defamation proceedings was his “clear agenda to create a public forum for disputation of the history of the Holocaust and for the expression of anti-Semitic views”.

“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 said.

McCallum also rejected Toben’s claim “merely to be engaged in philosophical discourse” as “cynical and disingenuous”, saying: “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.”

Commending the defendants and the judge for the “deft and compelling manner in which Toben’s nonsense was despatched”, ECAJ executive director Peter Wertheim said: “Once again, a court has rejected Toben’s protestations that he is merely engaged in a good faith discussion of history and philosophy, and has recognised that Toben’s so-called ‘discussion’ is a thinly disguised vehicle for smearing Jews generally.”