Order 14, Rule 2
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. NSD327 of 2001
AFFIDAVIT OF FREDRICK TÖBEN
On 07 September 2007 I, Fredrick Töben, of
Wattle Park, in the State of South Australia, say on oath:
1. I refer to the Applicant’s Statement of Charge filed on 16 November 2006 and state that I am unable to fully answer this Statement of Charge for the following reasons:
1.1 The Statement of Charge refers to a Schedule which was purportedly attached to the Statement of Charge. No such schedule was attached.
Schedule was intended to indicate the dates upon which I had published or
re-published the articles or material that forms the basis of these proceedings.
the absence of those dates I am unable to ascertain the details of the
allegations against me sufficiently to be able to properly know the charges
1.4 I have no independent means of knowing when the materials were placed on the website.
is my recollection that some of the articles have been on the Adelaide Institute
website for a period of time. I had deleted all material off the website after
the Order of Branson J. I then gradually placed new material on the website
whilst attempting to comply with the Order.
2.2.The potential defence would involve argument that the Applicant’s failure to prosecute this matter at the earliest reasonable opportunity is a basis for dismissing the current proceedings. Without the dates of the alleged breaches of the Order I am unable to properly pursue this defence.
is unclear to me what constitutes a “serious doubt”;
3.2 It is unclear to me what the word “Holocaust” means in the context of the Order
That that part of the Order made by Branson J
on 17 September 2002 which is referred to as “B. It is unlikely that there were homicidal gas chambers at
Auschwitz” is ambiguous. I have attempted to comply with it when I have
published and republished material on the website without being certain as to
its precise meaning. I say that it is ambiguous for the following reason:
phrase “unlikely” is so uncertain in that it might mean:
was possible that there were not homicidal gas chambers;
was probable that there were not homicidal gas chambers;
4.1.3 There is some doubt that there were homicidal gas chambers;
are other alternatives to those referred to above.
5. The fact that the Order in “A” refers to
“serious doubt” and in “ B”
refers to “unlikely” has
reinforced my difficulty in understanding precisely what level of uncertainty,
doubt or likelihood is required to be present in material that I have wanted
to publish before that the publishing or republishing of that material becomes a
potential breach of the Order. I
have attempted to comply with my understanding of what the Order means.
That the delay in the Applicant seeking to
prosecute any alleged breach of the Order led me to believe that my attempts to
comply with the Order had been successful. If I had been advised by the
Applicant that a particular article was offensive or may have led to a potential
breach of the Order I would have removed the article. I have removed articles
upon the request of individuals on a number of occasions.
Sworn by Deponent
on the 07th day of September 2007
Filed by Dr F Töben
Tel: 08 83310808
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