Unsurprisingly the Court held that Senator's remarks were not undertaken in the course of any business, trade or profession and were thus incapable of being misleading and deceptive conduct in terms of the Australian Consumer Law (ACL).
Toben had unsuccessfully relied on the ACL last year in Toben v Jones  FCA 1193.
In Jones v Toben  FCA 354 the Court commented that
The Courts have held, but his conduct shows he does not accept, that the freedom of speech citizens of this country enjoy does not include the freedom to publish material calculated to offend, insult or humiliate or intimidate people because of their race, colour or national or ethnic origin. His conduct has been proved to be wilful and contumacious because he has steadfastly refused to comply with a law of the Commonwealth Parliament and refused to recognise the authority of this Court.The litigation followed the 5 October 2000 finding by the Human Rights & Equal Opportunity Commission that Toben , representing "the Adelaide Institute", had engaged in conduct rendered unlawful by s 18C of the Racial Discrimination Act 1975 (Cth) by publishing on the internet certain material that the HREOC found to be "racially vilificatory". The Commission's finding was reflected in Jones v Toben  FCA 1150. Dowsett J in Toben v Jones  FCAFC 158 commented that
The allegations made by the [Toben] against Branson J were completely without demonstrated substance and based entirely upon his own unreasonable misinterpretations of quite innocent statements by her Honour. The measured tones in which he made his attack did nothing to conceal its complete lack of substance. It was, in my view, outrageous in its condescension. Such an attack upon the intellectual capacity and integrity of a judge of a superior court is, in my experience, virtually unprecedented.In the current litigation Toben is taking defamation action against Clive Mathieson (editor of The Australian), Christian Kerr (the journalist under whose by-line the articles were published) and Senator Christine Milne, the leader of the Australian Greens Party, to whom several direct quotes are attributed in the article.
McCallum J comments that
The explanation for the duplication of proceedings appears to be the existence of a statutory cap on the amount of damages for non-economic loss that may be awarded in defamation proceedings: see s 35(1) of the Defamation Act 2005. That provision has been interpreted as imposing a single cap in any single set of proceedings even where there is more than one matter complained of in those proceedings: Davis v Nationwide News Pty Limited  NSWSC 693 per McClellan CJ at CL at  to . The appropriateness of commencing multiple proceedings where virtually identical matter is published in different versions of the same newspaper remains to be tested in this list: see Dank v Whittaker (No 2)  NSWSC 1064 at .
Whilst the two sets of proceedings are travelling together, the present application concerns only the proceedings in which Senator Milne is a defendant (proceedings 200128 of 2013). In those proceedings, Senator Milne filed a notice of motion on 22 August 2013 moving the court for an order that the proceedings as against her be stayed or the statement of claim struck out. At that stage, the action against Senator Milne was based on the contention that she was jointly liable as a publisher of the whole of the article. The basis for the application to have the statement of claim struck out was the principle stated in my decision in Dank v Whittaker (No 1)  NSWSC 1062. In that case I held that, where a person contributes to an article but is not alleged to have had any control over the publishing process, that person is not liable as a publisher of the whole of the article unless he or she has assented in some way to its final form (at ).
The plaintiff responded to the notice of motion by serving a proposed amended statement of claim. The amended pleading cures the defect in the manner in which the element of publication is pleaded in that Senator Milne is now sued only for publication of the words attributed to her in the article and the republication of those words by the newspaper. She is no longer sued on the article as a whole.
Separately, however, the proposed amended statement of claim seeks to add a cause of action against Senator Milne alleging that she engaged in misleading or deceptive conduct contrary to s 18(1) of the Australian Consumer Law. Dr Toben requires leave to amend the statement of claim at this stage of the proceedings, the original statement of claim having been filed on 1 July 2013, more than 28 days ago: see r 19.1 of the Uniform Civil Procedure Rules 2005. Accordingly, the issue ultimately brought forward by Senator Milne's notice of motion was whether the plaintiff should have leave to file the proposed amended statement of claim. This judgment determines that issue.The judgment continues
Dr Toben's proposed claim for misleading or deceptive conduct is pleaded in the following terms:
2D Further and in addition on or about 20 June 2013 the third defendant in trade or commerce (to wit in her profession as a politician) engaged in conduct which was misleading or deceptive or which was likely to mislead or deceive contrary to the provisions of Section 18(1) of Schedule 2 of the Australian Competition and Consumer Legislation.
(A) The third defendant represented to the second defendant and/or other journalists of and concerning the plaintiff:
(a) The plaintiff engaged in the fabrication of history.
(b) The Plaintiff spread and engaged in anti-Semitism.
(c) The plaintiff's conduct in denying the holocaust is abhorrent and should be condemned universally.
(d) The plaintiff is a holocaust denier.
(e) Holocaust denials have no place in Australian Society.
(f) The plaintiff is an anti-Semite.
(B) When the third defendant made the representations above referred to she knew they would be or would likely to be republished in "The Australian" and subsequently the said representations were republished in an article in "The Australian" of 21 June 2013.
(C) The said representations were misleading and deceptive or capable of being misleading or deceptive because:
(a) The plaintiff did not engage in fabrication of history.
(b) The plaintiff did not spread and engage in anti-Semitism.
(c) The plaintiff is not an anti-Semite.
(d) The Plaintiff is not a holocaust denier.