Case: Jones v Toben (2002) 71 ALD 629
Outcome: applied
The foregoing decision on appeal in Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 was made on 27 June 2003 by a Full Federal Court comprising Carr, Kiefel and Allsop JJ in favour of Mr Jones as complainant also in those proceedings, in line with the decision at first instance of Branson J in Jones v Toben (2002) 71 ALD 629. Mr Jones, being the applicant for relief there involved, is the same representative person for the Executive Council of Australian Jewry as here constituted. 22 Whether the first respondent has legal personality upon the basis of being the registrant of that domain name may be a moot point. The applicant submitted that the BBC was an unincorporated association and 'does not appear to have any corporate identity or existence'; the applicant supported that proposition with evidence that the BBC is not listed in either ASIC or Australian Business Registrar records. The applicant made the further submission that in Jones 71 ALD 629, the first respondent, 'the Adelaide Institute', was also found to be an unincorporated association in the control of the second respondent, Mr Toben. In Jones 71 ALD 629, Branson J found, at [66], as follows: 'The respondent has made it plain during the course of the proceeding that he does not dispute that he controls the Adelaide Institute. He describes himself as the director of the Adelaide Institute and in correspondence utilises the letterhead of the Adelaide Institute [...] I am satisfied that the respondent is responsible for the actions of the Adelaide Institute. In particular I am satisfied that at all material times it has been the respondent who has caused the material which is displayed on the websites of the Adelaide Institute to be displayed on those websites.' The applicant observed that the first respondent's letterhead identified the second respondent, Mr Grigor-Scott, in the email contact as ags@biblebelievers.org.au. In any event of course, Mr Grigor-Scott has legal personality as a natural person and he at least has been properly constituted as a respondent to the proceedings, and can be appropriately sued by the applicant. 23 As already indicated, neither The Bible Believers' Church (which I have foreshadowed is to be abbreviated as the 'BBC'), nor Mr Grigor-Scott, filed a notice of appearance with the Registry of this Court, whether in accordance with the Federal Court Rules or at all. As I have foreshadowed, the BBC does not appear to have been registered anywhere in Australia, whether as any form of incorporated or deemed legal entity created under the auspices of Federal or State legislation in Australia or otherwise, though as already exemplified as well as explained, it does operate a website. As I have foreshadowed, it would seem that the BBC has no legal personality, being at most an unincorporated association and merely an emanation of Mr Grigor-Scott, which is probably the more accurate description. There is no evidence of any other person being a member of the BBC, whether by way of a register of members or otherwise. Nevertheless in the light of the way in which the proceedings have been structured and the litigation conducted by each of Mr Jones in his stated represented capacity as applicant and of Mr Grigor-Scott as respondent, the Court record in respect of the proceedings has continued as a matter of expediency to be as it presently appears in the heading to these reasons for judgment. 24 Prior to the filing and service of the amended statement of claim by Mr Jones, which remained in operation for the purpose of the hearing, the proceedings had been on 20 September 2005 the subject of what may be described imprecisely as preliminary proceedings. On that occasion Mr Grigor-Scott informed the Court that '... the Church is not a justiciable body' and that '... nobody can appear for it', and hence he was not seeking to appear for the BBC. Notwithstanding that neither respondent had filed an appearance, counsel for the applicant informed the Court that the applicant did not seek to exclude either respondent in those circumstances from objective relief. Mr Grigor-Scott explained to the Court on that occasion the following: ' [BBC] is not a legal entity. It's not a corporation. It's not registered with anybody. It's just a group of believers. It's just part of the Body of Christ. As such, it cannot sue, neither can it be served a Summons'. On that purported basis he said that he appeared for himself alone. 59 Mr Grigor-Scott's case has failed moreover to confront and answer the nature and the extent of the findings and reasoning of this Court in Jones v Toben , both at first instance and on appeal, to which authority I have of course earlier made reference. There was ample corresponding support in the present case for the making here of similar findings to those made in Jones v Toben . Moreover it is unnecessary for me to determine the validity of the second respondent's assertions regarding the Holocaust. Hely J observed in Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [176] - [177] as follows: '176. I am not in a position to determine, as a matter of fact, whether the claim made by the author of the pamphlet that the Holocaust never occurred is true or not. I do not have the evidence which would be needed to enable me to make that determination, assuming that the matter is susceptible of proof in a court. As Gray J observed in Irving v Penguin Books Ltd [2000] EWHC QB 115 at [1.3] , that is a task for historians whose role it is to provide an accurate narrative of past events; whereas my role is to determine whether the public dissemination of the leaflet by Mrs Scully in Launceston contravenes s 18C of the RDA. 177. In my view, a leaflet that conveys an imputation that Jews are fraudulent, liars, immoral, deceitful and part of a conspiracy to defraud the world is reasonably likely to offend, insult, humiliate or intimidate Jews in Australia. This would be so regardless of whether or not the leaflet made mention of the Holocaust. However, the fact that the imputation arises in the context of a debate about the Holocaust makes it even more likely that the leaflet would cause offence. This is particularly so owing to the inflammatory language used in the leaflet, as well as the fact that it is unambiguously dismissive of the Jewish view of the Holocaust. I therefore find that this leaflet contravenes s 18C.' I think it is appropriate for me to refrain from addressing further what appears in the evidence as to Mr Grigor-Scott's apparent views concerning the occurrence or otherwise of the Holocaust. 65 In the result the application by Mr Jones made on his own part and on behalf of the Executive Council of Australian Jewry should be granted, and the relief sought thereby should be ordered in principle. Given however that the BBC does not have legal personality, not being an incorporated entity as I have earlier explained, no order may be made against what is merely a name or description, though of course restraints may be made against future conduct of Mr Grigor-Scott as to causing or committing proscribed conduct to occur, including proscribed conduct undertaken in the name of the BBC. I should add that the applicant's amended application sought inter alia an order that the second respondent, Mr Grigor-Scott, deliver to the applicant a written statement of apology. I consider such an order to be inappropriate. I refer in that regard to the observation of Branson J in Jones v Toben (2002) 71 ALD 629 at [106], where her Honour stated as follows: '...I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel. As Hely J pointed out in Jones v Scully at [245] , "prima facie the idea of ordering someone to make an apology is a contradiction in terms"...' The second respondent must pay the applicant's costs of the proceedings, including any previously reserved costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 2 February 2007 Counsel for the Applicant: Mr RM Goot AM SC and Mr SEJ Prince Solicitor for the Applicant: Slater &amp; Gordon Lawyers Second Respondent appeared in person Date of Hearing: 20 September 2005, 5 June 2006, 14 September 2006 and 18 October 2006. Date of Judgment: 2 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/55.html