AFFIDAVIT OF ANTHONY HUGH
NORTHAMIN SUPPORT OF APPLICATION FOR SECURITY FOR COSTS SWORN:
23 FEBRUARY 1994 AND ANNEXURES "AHN1" - "AHN22" Date of Document: 23 February 1994 Filed on behalf of: The First and Second Defendants Date of filing: February 1994 Prepared by: Arnold Bloch Leibler Solicitor Code: 54
Solicitors & Consultants DX: 455
Level 21 Tel: 629 7444
333 Collins Street Ref. AHN:934829:KAV
MELBOURNE VIC 3000 (Mr A H Northam) Filed by: BENNETT & CO
Barristers & Solicitors
10th Floor
Hamersley House Tel: 321 5500
191 St George's Terrace Ref: MLB: 1bARN3728
PERTH WA 6000 (Mr Martin Bennett)
INDEX
Affidavit of ANTHONY HUGH NORTHAM - Exhibit "AHN1" Letter from Bennett & Co to E J
Wall & Associates dated 21 October 1993 and letter
from E J Wall & Associates to Bennett & Co dated
15 October 1993
- Exhibit "AHN2" Statement
of Claim
- Exhibit "AHN3" Notice
of Motion House of Commons 20 June 1989
- Exhibit "AHN4" Video Transcript: "The search for
Truth in History"
- Exhibit "AHN5" DVU Advertisement and Searchlight May
92
- Exhibit "AHN6" Nationale Offensive Bill Poster for
Augsburg Meeting 19 March 1992
- Exhibit "AHN7" Searchlight August 1992, Time Out 8
July 1992 and Invitation to Revisionist Seminar on 4 July
1992
- Exhibit "AHN8" Searchlight October 1992
- Exhibit "AHN9" Text of
address: Clarendon Club 19 September 1992
- Exhibit "AHN10" Searchlight April 1991
- Exhibit "AHN11" The Age 1 October 1993
- Exhibit "AHN12" Neil
Mitchell Interview 17 September 1993
- Exhibit "AHN13" Metropolitan and Regional
Newspapers
- Exhibit "AHN14" London Jewish Chronicle 29 June
1984
- Letter from Austrian
Ambassador to London, 22 June 1992;
- Transcript of Hearing
by Canadian Department of Education and Immigration,
Niagara Falls, 13 November 1992;
- Report, "Revisionism in
the Federal Republic of Germany",
- Department for the
Defence of the Constitution, State of Bavaria, Germany,
January 1993;
- London Jewish Chronicle, 19 June 1992;
- Letter from Dr
Frish, Vice President, Office for the Protection of the
Constitution, Ministry of the Interior, Federal Republic
of Germany, 9 August 1991;
- Letter from Gerhard
Kunz, Councillor, Embassy of the Federal Republic of
Germany, London 9 November 1992;
- Report, South
African Cape Times, "Cape Times" 5 June 1992.
- Report, South African "Business Day" 23 December
1993.
- Exhibit "AHN15" The Sunday Express and The Sunday
Times 13 February 1994 and The Herald-Sun and The Age 14
February 1994
- Exhibit "AHN16" The
Plaintiff's Affidavit
- Exhibit "AHN17" Letter
from Arnold Bloch Leibler dated 4 January 1994 to Times
Newspapers Limited
- Exhibit "AHN18" Letter
from Times Newspapers Limited dated 20 January 1994 to
Arnold Bloch Leibler
- Exhibit "AHN19" The Australian 15 January 1994
- Exhibit "AHN20" New Times
- Exhibit "AHN21" Extract from the Land Register issued
on 10 December 1993
- Exhibit "AHN22" Certified copies dated 10 January i
994 of entries in the Register of County Court Judgments,
London.
I, ANTHONY HUGH NORTHAM, of
Level 21, 333 Collins Street, Melbourne in the State of
Victoria, Solicitor, MAKE OATH AND SAY as follows:1 I am a member of Arnold Bloch Leibler, solicitors for
the First and Second Defendants, and I have the carriage of
this matter on their behalf in this proceeding. 2 Save where otherwise indicated, I make this Affidavit
from my own knowledge. Wherever I depose to matters from
information and belief, I verily believe those matters to be
true and correct. 3 I make this Affidavit in support of the application by
the First and Second Defendants ("the Defendants") that the
Plaintiff provide security for costs. 4 This proceeding was commenced by Writ of Summons dated
5 July 1993. 5 On 21 September 1993, Messrs Bennett & Co,
("Bennett & Co") Barristers and Solicitors, as Perth
agents of Arnold Bloch Leibler, entered an Appearance on
behalf of the First Defendant. 6 On 21 October 1993, Bennett & Co filed a Chamber
Summons in this Honourable Court seeking an Order that the
Plaintiff provide security for costs. I am informed by Mr
Martin Bennett ("Bennett"), the Senior Partner of
Bennett & Co, and verily believe that prior to filing
the Chamber Summons he wrote to
Messrs E J Wall & Associates, Barristers and
Solicitors, the Plaintiff's solicitors, seeking an
undertaking that the Plaintiff provide security for costs,
and that on 15 October 1993, he received a communication
from E J Wall & Associates, declining such undertaking
and indicating that they would oppose any application for
security for costs. Now produced and shown to me and marked
"AHN1" are true copies of Bennett's said letter and the
letter in response dated 15 October 1993. 7 On 26 October 1993, a Statement
of Claim in this proceeding, dated 25 October 1993, was
received by Bennett & Co. Now produced and shown to me
and marked "AHN2" is a true copy of the said Statement of
Claim. 8 In his Statement of Claim, the Plaintiff alleges that,
in the edition of the Australia/Israel Review, Volume 17,
Number 20, dated 3-16 November 1992, under the headline "The
Odious Irving", the First Defendant falsely and maliciously
wrote and published, and the Second Defendant falsely and
maliciously caused to be printed and published of and
concerning the Plaintiff and of and concerning him in the
way of his profession as Historian, an article containing
the words particularised in the Schedule to the Statement of
Claim ("the Words"). The Plaintiff alleges in paragraph 5 of
the Statement of Claim that the Words, in their natural and
ordinary meaning, meant, and were understood to mean
that, - (a) the Plaintiff is a key neo-nazi agitator,
supporter and apologist;
- (b) the Plaintiff, if permitted to enter Australia,
is likely to break the laws of Australia and/or encourage
others to do so;
- (c) the Plaintiff projects himself as the right
person to lead a revival of Nazi sentiment in
Europe;
- (d) the Plaintiff intentionally excites the adulation
of brawling street thugs in Germany;
- (e) the Plaintiff disregards laws designed to protect
minority groups.
9 The Plaintiff alleges in the Statement of Claim that,
by reason of the publication of the Words, he has been
injured in his character and reputation as an Historian, and
has been brought into public scandal, odium and contempt,
and he claims damages and in injunction restraining the
Defendants from publishing or causing to be published the
said or similar words defamatory of the Plaintiff. The
publication of which the Plaintiff complains was published
after the Plaintiff had been refused a visitor's visa to
Australia by the Immigration Department. 10 The Writ of Summons and Statement of Claim herein were
received by the Second named Defendant on 21 October 1993,
and on 10 November 1993 Bennett & Co entered an
Appearance on behalf of the Second Defendant. 11 In the course of acting for the Defendants in this
proceeding, I have had cause to conduct a preliminary
examination and investigation of the matters raised in the
Statement of Claim, and I have concluded that the First and
Second Defendants have a strong defence, and the Plaintiff's
claim will be vigorously defended by the Defendants. 12 I have advised the Defendants that, on the basis of my
instructions and investigations so far, it appears likely
that they will be able to establish the defence of
justification. If the words give rise to the imputations
pleaded by the Plaintiff (which the Defendants do not
concede) there appears to be admissible evidence available
to the Defendants to establish that the imputations pleaded
by the Plaintiff are true in substance and in fact.
Alternatively, if imputations other than those pleaded by
the Plaintiff are pleaded by the Defendants in their
Defence, and such other imputations are held to be
defamatory (which the Defendants do not concede), there
appears to be admissible evidence which the Defendants will
be able to lead in order to establish the truth in substance
and in fact of such other imputations. In either case, I
consider that other defences available to the Defendants at
common law and by statute in Western Australia are also
likely to be able to be substantiated. 13 I refer to paragraph 5.1 of the Statement
of Claim, in which the Plaintiff pleads that the Words
carry the imputation that the Plaintiff is a key neo-Nazi
agitator, supporter and apologist. 14 In the course of examining evidence for the purpose of
advising the Defendants in this proceeding, I have perused a
copy of a Notice of Motion of the House of Commons in
England on 20 June 1 989 referring to the Plaintiff as "a
Nazi propagandist and long time Hitler apologist". Now
produced and shown to me and marked "AHN3" is a copy of the
Notice of Motion number "999, David Irving and Holocaust
Denial", 20 June 1989, session 1988-89 House of Commons. 15 I have viewed a video tape of an SBS Television
documentary entitled "Hitler's Legacy" dated 10 November
1992, a copy of which will be produced to the Court at the
hearing, in which the Plaintiff is portrayed as a mentor of
the far right in modern Germany today, and the leader of
their quest to absolve Hitler and the Nazi regime of war
crimes. A copy of the video will be produced to the Court at
the hearing of the application. 16 In the course of examining evidence, including the
Plaintiff's own publications, the Plaintiff's reported
speeches and newspaper and television reports, I have
perused transcripts and reports of the following statements
by the Plaintiff. In an address entitled "The Search for
Truth in History", recorded by the Plaintiff on videotape
following his failure to obtain a visitor's visa to
Australia in i 993, the Plaintiff makes the following
statements: "Our enemies, our traditional enemies, you all
know who they are, in this resect they impress me, and I
think that we have all been concerned about the level of
their intelligence and the breadth of their connections
and the network of their control world wide, and yet
surely if they wanted to ensure that the legend that they
have been studying for the last fifty years, this
historical legend, the "blood lie" on the German people,
if they had wanted to ensure that this legend survived
they would have done everything they could to see that I
was ignored.""But for my opponents, precisely that is what is the
obstacle, because the Holocaust, with a capital H, is
what's going down in history in this one sentence form,
so to speak. 'Adolf Hitler ordered the killing of 6
million Jews in Auschwitz'. And, because of that, the
Israel, Israeli Government has received from the German
government in compensation about $4 billion a year,
together with the payments made by American taxpayers,
and this is the contribution on which the State of Israel
depends, so its a matter of vital urgency that this
Holocaust statement, I don't call it legend, or I don't
call it truth, I just say its a statement. Its a matter
of vital urgency that statement should remain
intact." "... I said the Jewish people have been dining out on
the Holocaust for the last 50 years, and you may think
that was a tasteless remark and if there are people who
are offended by it, then I apologise." "From television, from books from newspapers, from
reading about trials of Adolf Eichmann, from films like
"War and Remembrance", with Robert Mitchum and the rest
of it, until by now in the i 990's there's not an
Auschwitz survivor who doesn't know what a gas chamber
looked like, because they've seen the images in the
media, and so at the beginning of the episode, at the
beginning of history of this particular tragedy, back in
1945, where the eye witnesses so called, in question they
were at that time very few of in number, there are eye
witness descriptions of the gas chambers and the gassing
procedures are all wildly contradicting each other in a
manner which would be totally impossible if they were
actually describing something they had seen only a few
weeks earlier." "Now the second question is, if the gas chambers
didn't exist, where did they come from?'" "... The BBC and our psychological warfare
organisations, the aerial leaflet organisations, made
increasing use of this particular legend about the gas
chambers killing millions of Jews in Nazi concentration
camps. That I think is a plausible explanation where the
legend first came from, and after a year of course we are
hearing the echo of our own propaganda." "And the third and final question is what happened to
the Jews then?" "The Holocaust legend is fizzling out. I said two
years ago it probably only had two years left to survive.
Probably I was wrong, probably its got about another six
months even now. But then its finally dead. Worldwide it
has paid out. And what we have seen in Canada and in
Australia and in America. Italy and Austria all around
the world where they are using these extraordinary
desperate tactics to try and protect, to bolster, to
shore up this legend. What we have seen is just one more
piece of proof and evidence. But it is just a legend.
Because the truth needs no such bodyguard of lies." "But if ever (I) become an anti-Semite it will be
their fault. And if the Australian public would become
more anti-Semitic as the result of what they have seen
over the last days, this kind of publicity campaign that
has been generated against me, then once again it will be
not my fault, it will be the fault of Mr Jeremy Jones, Mr
Michael Marx, Walt Secord and all the other, the
Rubensteins and all the other commentators and letter
writers and authors and journalists and politicians and
people who try to put pressure on the fair Australian
Government to suppress freedom of speech." "Now, if I was an average German citizen and I felt
that, two or three generations down the road, I was being
blamed for something which probably didn't happen, the
massacre of millions of people in gas chambers, in
factories of death, and we now begin to suspect that the
factories of death were just brutal, say labour camps,
that the gas chambers are a figment of enemy, in other
words Allied, propaganda, if I was a German I would be
getting pretty steamed up about this." 17 Now produced and shown to me and marked "AHN4" is a
copy of the transcript of the videotaped address. A copy of
the video entitled "The search for Truth in History" will be
produced to the Court upon the hearing of the
application. 18 I have examined evidence relating to the Plaintiff's
connection with the revival of Nazi sentiment in Europe and
with Neo-Nazi organisations, their support of him and his
attendance at rallies at which they are present including
the following: - * I have perused a copy of an advertisement in the
German National Zeitung for March 1992 advertising a
rally organised by the Deutsche Volksunion, and an
article published in "Searchlight", May 1992, reporting
that the Plaintiff addressed the rally and that members
of the Deutsche Volksunion, which is described in the
article as "Dr. Gerhard Grey's Nazi Deutsche Volksunion
("DVU"), marched through Passau giving Hitler salutes
after the rally. Now produced to me and marked "AHN5" are
copies of the advertisement and article.
- * I have perused a copy of a Nationale Offensive bill
poster advertising a meeting on 19 March 1992. The
Nationale Offensive is described in the "Searchlight"
article which is part of my exhibit "AHN5" as "openly
Hitlerite". The article reports that the Plaintiff
addressed Nationale Offensive meetings at Engen in
Baden-Whuttenberg on 18 March 1992 and in Augsburg on 19
March 1992. Now produced and shown to me and marked
"AHN6" is a copy of the bill poster advertising the
Augsburg meeting.
- * I have perused an article appearing in
"Searchlight", August 1992 and a report from "Time Out"
of 8 July 1992, together with a copy of an invitation to
a seminar on 4 July i 992, relating to revisionist
seminars in London attended and addressed by the
Plaintiff. The invitation to the seminar states that "we
do not want this gathering to be just another 'talking
shop' - we want it to be a spur to practical action". Now
produced and shown to me and marked "AHN7" are copies of
the article, report and invitation.
- * I have perused an article from "Searchlight"
October 1992, which is now produced and shown to me and
marked "AHN3" reporting on a revisionist seminar at the
Eccleston Hotel in London reportedly attended by
skinheads from the British National Party, and addressed
by the Plaintiff and Ernest Zundel who are reported as
claiming that the Holocaust did not exist. Zundel is
reported as describing Adolf Hitler as a great man, and
stating that Rostock is a beacon of hope. They are
thinking with their blood .. our war is at home and the
colour of our skin is our uniform. After the death of
Maastricht a new Europe will emerge, a decentralised
Europe on ethnic lines after there has been ethnic
cleansing."
- * I have perused the text of an address by the
Plaintiff to the Clarendon
Club Meeting at the Ecclestone Hotel on 19 September
1992, a copy of which is now produced and shown to me
and marked "AHN9". The text includes the following
statement by the Plaintiff:
- "Nothing pleases me more than when I arrive at an
airport or at a station or at a seaport and I see a
black family there ... I think that is the way God
planned it, and that's the way it should be. When I
see these families arriving at London Airport, I'm
happy, but I'm even happier when I see them leaving
London Airport. We can never totally ethnically
cleanse Britain, it would be wrong to set about doing
this. But we can relieve the pressure."
19 I refer to paragraph 5.4 of the Statement of Claim in
which the Plaintiff pleads that the words carry the
imputation that he intentionally excites the adulation of
brawling street thugs in Germany. I have examined newspaper
reports and articles relating to a number of occasions on
which demonstrations and violence have ensued upon meetings
or rallies addressed by the Plaintiff, including the
following: * I have perused a report in "Searchlight"
of April 1991, a copy of which is now produced and shown to
me and marked "AHN10" reporting a rally of the Deutsche
Volksunion at Passau in Barvaria, attended by 6,000 people
and addressed by the Plaintiff. The report states that after
the rally, several hundred of the audience terrorised
passers by, beating up two people and smashed windows. Forty
Deutsche Volksunion supporters, many of them skinheads, were
arrested, for giving Nazi salutes and brandishing knives and
knuckledusters. A further 20 were arrested for assaulting a
youth centre where an anti-fascist gathering was being held
and smashing doors and windows. * I have perused a report published in "The Age", 1
October 1993, a copy of which is now produced and shown to
me and marked "AHN11" relating to the Neo-Nazi leader
Gottfried Kuessel who, on 1 October 1993, received a
ten year jail sentence in Austria, and is reported by Reuter
to be regarded as the German speaking world's top Neo-Nazi.
Kuessel had been found guilty of setting up the People's
Extra-parliamentary Opposition. The SBS Television
documentary "Hitler's Legacy" referred to in paragraph 15
above, reports that the Plaintiff and Kuessel addressed a
rally in Halle in Germany on 9 September 1992. Also
addressing the rally was Thomas Dienel of the
Deutsche Nationale Partei who is reported to advocate the
use of force and underground work to further the civil war
that has already begun in furthering the aims of Hitler's
Nazi Party. It is reported that the audience at the rally
included a number of tattooed youths waving flags who
shouted Sieg Heil when the Plaintiff referred to the heroism
of "that great German martyr Rudolph Hess. 20 I refer to paragraphs 5.2 and 5.5 of the Statement of
Claim in which the Plaintiff pleads that the words carry the
imputations that, if permitted to enter Australia, he is
likely to break the laws of Australia and/or encourage
others to do so, and that he disregards laws designed to
protect minority groups. 21 Anti-racism laws are now in place in a number of
Australian States, and in the Australian Capital Territory.
Evidence I have examined tends to indicate that the
Plaintiff has a history of contravention of the laws of
other countries which are designed to proscribe racial
vilification and racism, and to protect minorities. Insofar
as the Plaintiff can make out the imputations pleaded, which
are not admitted by the Defendants, the following evidence
tends to substantiate substantial grounds for concern that
the Plaintiff would contravene similar laws in Australia.
Evidence I have examined includes the following: * I have perused the transcript of an interview
of the Plaintiff by Neil Mitchell on Radio 3AW Melbourne
on 17 September 1993, a copy of which is now produced and
shown to me and marked "AHN12". During the interview the
Plaintiff states in connection with his proposed tour of
Australia "now I am coming to hit back .. I am coming back
and they are going to hurt", which statement is made in
connection with a reference to the Australian Holocaust
survivors, which is in the following terms: Mitchell: I mean, I have talked to survivors of
the Holocaust. They will hurt. It will disturb them. It
will hurt them. Do you accept that?"Irving: I have to say that I don't give a tuppeny fig
if they hurt. They have hurt me very substantially ...
and now I am coming to hit back." My examination of the evidence tends to indicate that the
proposed visit by the Plaintiff to Australia, the decision
of the Melbourne Sheraton Hotel to cancel the screening of a
David Irving video presentation and the failure of the
Plaintiff to obtain a visitor's visa were all attended by
activities within Australia of a racist character
including: - Two fires on the premises of a Melbourne
Synagogue
- A Perth Synagogue being extensively daubed with
Holocaust-denial slogans including:
- "Irving was here"
- "Six million lies" and "White power".
Two petrol bombs being thrown at a Synagogue wall in
Sydney A sequence of bomb threats to a Jewish hospital in
Sydney 23 These matters are reported in the articles and letters
in Australian metropolitan and regional newspapers, January
to August 1993, copies of which are now produced and shown
to me and marked "AHN13". 24 Further, in respect of paragraph 5.5 of the Statement
of Claim, I have examined a substantial amount of
documentary evidence which tends to substantiate the
assertion in the Schedule of Words Complained Of to the
effect that because of his scant regard for laws designed
for safeguarding the rights of minority groups, the
Plaintiff has been banned from entering Germany and Austria
and has been denied entry into other countries. Insofar as
the Plaintiff pleads that those words carry any other
imputation, such imputation is not admitted. However, it is
my opinion that the Defendants will be able substantially to
prove the truth of the statement, both in fact and in
substance, by reference to admissible evidence. I have
perused the following documents, which are now produced and
shown to me and marked "AHN14": - London Jewish Chronicle, 29 June 1984;
- Letter from Austrian Ambassador to London, 22 June
1992;
- Transcript of Hearing by Canadian Department of
Education and
- Immigration, Niagara Falls, 13 November 1992;
- Report, "Revisionism in the Federal Republic of
Germany",
- Department for the Defence of the Constitution, State
of Barvaria, Germany, January 1993;
- London Jewish Chronicle, 19 June 1992;
- Letter from Dr Frish, Vice President, Office for the
Protection of the Constitution, Ministry of the Interior,
Federal Republic of Germany, 9 August 1991;
- Letter from Gerhard Kunz, Councillor, Embassy of the
Federal Republic of Germany, London 9 November 1992;
- Report, South African Cape Times, "Cape Times" 5 June
1992.
- Report, South African "Business Day" 23 December
1993.
25 The documents referred to above which are my exhibit
"AHN14" provide substantiation for the following: - * The Plaintiff was convicted on 8 May 1992 by the
Munich District Court of slander, concomitant with the
disparagement of the memory of deceased persons.
- * The Plaintiff was expelled from Austria in June i
984 by the Austrian Interior Ministry for taking part in
Neo-Nazi activities;
- * A warrant for the Plaintiff's arrest was issued on
8 November 1989 by the Criminal Court in Vienna;
- * On 9 October 1992 the Canadian Department of
Employment and Immigration made a decision not to admit
the Plaintiff into Canada, as persona non grata, by
virtue of Section 19 of the Immigration Act.
- * On 27 October 1992 the Plaintiff was arrested by
the Canadian authorities after his illegal entry into
Canada and misrepresentation of the purpose of his visit
and served with a Departure Notice.
- * On 1 November 1992 the US Immigration authorities
prevented the Plaintiff's entry into the United States
from Canada on the grounds that he is an undesirable
individual.
- * On 12 November 1992 the Plaintiff attended an
immigration hearing in Ontario in Canada with which the
Adjudicator found that he had fabricated evidence,
concocted stories and that there were inconsistencies and
discrepancies in the evidence which undermines the trust
of his evidence and his personal credibility. A
deportation order was issued;
- * The Plaintiff was temporarily arrested by the
German Federal Police after leading an illegal Neo-Nazi
march, which followed an address to 500 Neo-Nazis in a
local Munich bar on 21 April 1990. Following the address,
the Plaintiff is reported to have led Neo-Nazis forming
in groups of 200 on a march through the streets of Munich
towards the Feldherrnhalle, the location in Munich which
is identified with Hitler's putsch;
- * On 13 June 1992 the Plaintiff was denied entry into
Italy by Italian Border Police when he was proposing to
address the Holocaust Denial Seminar;
- * On 9 March 1990, the German Federal Minister of the
Interior banned the Plaintiff from entering Germany;
- * In June 1992, the Plaintiff's visa exemption was
withdrawn by the South African Government, and in 1993 he
was banned from entering South Africa altogether;
- * In January 1993, the City of Munich announced a
permanent prohibition on the Plaintiff engaging in any
political activity within Munich.
26 I have perused newspaper reports published in the
Melbourne Herald-Sun and the Melbourne Age on 14 February
1994 and in the Sunday Times and Sunday Express dated 13
February 1994 reporting the imprisonment of the Plaintiff
for contempt of court. The reports state that Irving was
ordered by the High Court in London on 20 December 1993 to
disclose all his assets by Affidavit in a proceeding brought
by his German publishers, Rohwohlt Verlag, relating to an
advance of £58,540.24 in connection with a biography of
Sir Winston Churchill. The reports state that Irving has
been jailed for three months for the contempt. Now produced
and shown to me and marked "AHN15" are copies of the said
newspaper reports. 27 I refer to the Plaintiff's Affidavit sworn on 14
December 1993 in proceeding number 1624 of 1993 in this
Honourable Court ("the Plaintiff's Affidavit"). In that
proceeding, the Plaintiff claims damages against and an
injunction restraining Colin Rubenstein, the First Defendant
and the Herald and Weekly Times Limited, the Second
Defendant, in respect of alleged defamation. A copy of the
said Affidavit ("the Plaintiff's Affidavit") is now produced
and shown to me and marked "AHN16". 28 I am informed by Bennett, and verily believe, that the
Plaintiff intends to rely on the Affidavit which is my
exhibit "AHN16" in this proceeding, for which purpose a copy
of the Affidavit was forwarded to me on 4 January 1994. On
16 December 1993, Orders were made in Chambers in both
proceedings, including that the Defendants in this
proceeding should have until 21 January 1994 to file an
Affidavit in reply to the Plaintiff's Affidavit, however
those orders were, I am informed by Bennett and verily
believe, made in the context of the Plaintiff's solicitors
undertaking to immediately serve a copy of the Plaintiff's
Affidavit upon the Defendants and upon which he intended to
rely in this application. 29 I regret that, due to the fact that a copy of the
Affidavit was not provided to me until 4 January 1994, since
when and until 31 January 1994 I have been on vacation, that
time limit has not been complied with. Whilst on vacation I
had a telephone conversation on 7 January 1994 with Ms
Patricia Burge, a solicitor employed by Times Newspapers
Limited in London. The purpose of my telephoning Ms Burge
was to follow up my letter to her dated 4 January 1994, a
copy of which is now produced and shown to me and marked
"AHN17". In my letter I had asked Ms Burge to confirm
matters which I had discussed with Mr Alistair Brett,
another solicitor employed by Times Newspapers Limited,
during a telephone conversation with him on 23 December
1993. 30 During my telephone conversation with Ms Burge on 7
January 1994, she informed me that she was under pressure
with another, unrelated, matter, and would respond to my
letter as soon as she was able. During my absence on
vacation, Ms Burge forwarded to me by facsimile transmission
a letter dated 20 January 1994, a copy of which is now
produced and shown to me and marked "AHN18". The letter
comments on certain matters deposed to in the Plaintiff's
Affidavit, to which I shall refer below. 31 I refer to paragraph 4 of the Plaintiff's Affidavit,
and say that the mere assertion therein contained does not
alter the view that I have formed as to the Defendants'
prospects in this proceeding, as outlined in paragraphs 11
and 12 above. 32 The Plaintiff is not ordinarily resident in Western
Australia and it is implicit if not express from the
Plaintiff's Affidavit that he is ordinarily resident in
London, England. I refer to paragraphs 6-12 of the
Plaintiff's Affidavit. On the basis of a report in "The
Australian" 15 January 1994 containing statements of the
Plaintiff I verily believe that as at the date of my
swearing this Affidavit the Minister has not yet determined
the Plaintiff's application for a business/visitor visa to
enter Australia and the grant of any visa is dependent upon
the Plaintiff's response to a number of questions submitted
to him by the Minister. Now produced and shown to me and
marked with the letters "AHN19" is a copy of the said press
report. 33 I refer to paragraph 17 of the Plaintiff's Affidavit.
This provides the only evidence so far of any assets of the
Plaintiff within the jurisdiction, and is not, in my
respectful submission, evidence that should satisfy this
Honourable Court that the Plaintiff would be able to meet
any costs orders made against him in this proceeding. Apart
from the fact that the figures given by the Plaintiff are
projections unsupported by independent expert evidence, the
projections relate to possible future sales, and the ability
of the Defendants to access the Plaintiff's income, even if
such eventuates, from the sale of books in Australia must be
a matter of substantial uncertainty. 34 Further, I am informed by Michael Kapel of the
Secondnamed Defendant, who is experienced in publishing
matters and verily believe that royalties paid by Australian
publishers and distributors to authors range between 7.5%
and 10% of retail value. Therefore, even if the Plaintiff's
projections and sales came to pass the total royalties he
could reasonably expect are between $3,500.00 and $5,000.00.
I have been further informed by the said Michael Kapel and
verily believe that in relation to the Plaintiff's
forthcoming book, "Churchill's War Volume 1" if the most
optimistic projected revenue of $100,000.00 is obtained from
sales of 2,000 copies, as the Plaintiff suggests, then the
retail price must be in the vicinity of $50.00 per book,
indicating a hardback edition. Based on 10% royalties for
sales, the Plaintiff would not receive more than $10,000.00
in royalties combined with a possible up front advance from
his Australian publishers of between $1,500.00 and
$5,000.00. Therefore, on his own figures this would give the
Plaintiff at most $1 5,000.00 from initial sales and perhaps
an extra $5,000.00 based on his projected discounted sales
giving a total return of $20,000.00. Further, all figures
referred to herein assume the receipt and retention in
Australia by the Plaintiff of the monies paid in respect of
Australian sales of his books. I refer to paragraph 26 of
this my Affidavit and to the newspaper reports exhibited
thereto and say that these reports cast real doubt over the
Plaintiff's financial wellbeing so far as the same relates
to his income earned from his writings and further casts
doubt over his preparedness, even under Court order, to set
out details of his assets. It appears that the Plaintiff has
been jailed in England for failing to reveal his assets. 35 Further, the January 1994 edition of "New Times", the
newsletter of the Australian League of Rights, reports that
the Plaintiff's Australian publishers, Veritas Pty Ltd, have
established a defence fund "to meet his high legal
expenses." Now produced and shown to me and marked "AHN20"
is a copy of the said report. 36 I refer to paragraph 22 of the Plaintiff's Affidavit,
and say that, again, the Plaintiff does not put forward
independent or documentary evidence to support the
estimation that he makes as to lost income. Again at best
the Plaintiff appears to be making a best guesstimate of
contingent income which even if realised may never be paid
to him or retained by him in Australia in a manner and form
facilitating its attachment by the Defendants in the event
that the Plaintiff becomes liable to pay their costs in
these proceedings. 37 I refer to paragraphs 25 and 26 of the Plaintiff's
Affidavit, in which he refers to encumbrances on his
leasehold property, Flat 1, 81 Duke Street, Mayfair in
London. Now produced and shown to me and marked "AHN21" is a
copy of an extract from the Land Register issued on 10
December 1993 by H M Land Registry, Greater London, City of
Westminster, which appears to confirm the matters deposed to
by the Plaintiff, save as to the amounts of the charges and
other encumbrances and the Plaintiff's estimate of the value
of the leasehold and the equity remaining. 38 I refer to paragraphs 32-35 of the Plaintiff's
Affidavit, in which he omits to depose to the fact that his
action against Times Newspapers Limited (The Sunday Times)
is being vigorously defended and, moreover, that there is a
substantial counterclaim. These matters are the subject of
the letter to me from Ms Burge, of Times Newspapers Limited,
which is my exhibit "AHN18". I was informed by Ms Burge
during the telephone conversation on 7 January 1994, and
verily believe, that the Plaintiff has been granted
provisional legal aid in the action against Times Newspapers
Limited, and this is confirmed in her letter which is my
exhibit "AHN18". 39 I refer to paragraphs 36-37 of the Plaintiff's
Affidavit. [details
omitted] 41 In addition to this proceeding, I believe that the
Plaintiff is prosecuting other proceedings in this
Honourable Court, being proceedings numbered 1434, 1435 and
1624 of 1993. 42 In order to defend this proceeding, it will be
necessary for the Defendants and their legal advisors to
undertake substantial investigations and enquiries to
examine and weigh evidence, much of which relates to
evidence outside Australia. That is in addition to the work
which has been undertaken so far, both in relation to the
substantive issues arising from the Plaintiff's Statement of
Claim, and in relation to the application for security for
costs and the Plaintiff's ability to meet any substantial
order for costs in this proceeding. 43 As at the date of swearing this my Affidavit, the
Defendants have incurred legal costs on a party and party
basis from the commencement of these proceedings in excess
of $16,000.00 exclusive of disbursements. 44 As the proceeding progresses to a trial, the
Defendants will inevitably incur further legal costs by
reason of the various interlocutory steps including the
application for security for costs, the settling of a
Defence, the seeking and settling of Further and Better
Particulars, discovery, interrogatories, the gathering of
evidence and proofing of witnesses and the briefing of
Counsel. Very substantial quantities of documentary evidence
will be involved. The matters raised in the Plaintiff's
Statement of Claim concern events outside Australia, and the
gathering of evidence and proofing of witnesses from Europe
and other countries is an inevitable aspect of the
defence. 45 I estimate that the costs of the Defendants to trial
will exceed $51,700.00 exclusive of witness expenses, made
up as follows: A. UP TO TRIAL - Application for security for costs including
preparation $3,000.00
- Counsel's fee on application $3,000.00
- Preparation of Defence $1500.00
- Further and Better Particulars $1,200.00
- Discovery (conservative) $2,500.00
- Interrogatories $2,500.00
- Counsel's Fees for settling Defence $1,500.00
- Counsel's fees for settling Further and Better
Particulars $1 500.00
- $16,700.00
B. TRIAL: - Instructions for brief $6,000.00
- Preparation: Solicitor and conferences with Counsel
$6,000.00
- senior counsel's brief, say, 5 days @ $3,000.00
$15,000.00
- Junior counsel's brief, say, 5 days @ $1,200.00
$6,000.00
- solicitor instructing Counsel, say, 5 days @
$1,200.00 $6,000.00
- $39,000.00
- $55,700.00
46 I respectfully submit that the matters deposed to in
the Plaintiff's Affidavit cannot satisfy this Honourable
Court that either: - (a) the Plaintiff has sufficient assets in this
jurisdiction; or
- (b) the Plaintiff's projected income, even if
accurately calculated, would be necessarily accessible by
the Defendants for the purpose of meeting any order for
costs in the event that the Defendants successfully
defend this proceeding.
47 Rather, the matters deposed to in this my Affidavit,
and a number of matters deposed to in the Plaintiff's
Affidavit, indicate that: - (a) the Plaintiff has not substantial, sufficient or
any assets within the jurisdiction;
- (b) the Plaintiff's income is, on his own admission,
at present small and is, in any event, subject to
fluctuation;
- (c) the Plaintiff's leasehold property in London is
subject to substantial encumbrances;
- (d) there are other substantial judgments in force
against the Plaintiff; and
- (e) on his own admission, the Plaintiff has deficits
assets in his bank accounts.
- (f) The Plaintiff is serving a jail term for contempt
of a Court order of the High Court in England requiring
him to provide details of his assets.
In the SBS Television documentary referred to in
paragraph 15 above, the Plaintiff states that "I am worth
nothing". 48 I respectfully request that this Honourable Court make
an order that the Plaintiff provide security for costs to
the First and Second Defendants in the amount of $22,700.00
up to trial, with liberty to the Defendants to make further
application for security for the costs of the trial itself,
and to make such further or other orders as this Honourable
Court deems fit. SWORN by the said ANTHONY HUGH NORTHAM at Melbourne in
the State of Victoria this 23rd day of February 1994 Before me: W.K.L. SIEBEL Level 21, 333 Collins Street A Solicitor holding a current Practising Certificate
pursuant to the Legal Profession Practice Act 1958
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David Irving