In the Supreme Court of Western Australia No. 1676 of 1993
Date of Document: 23 February 1994
Filed on behalf of: The First and Second Defendants
Date of filing: 1994
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)
This is the exhibit marked "AHN16" referred to by ANTHONY HUGH NORTHAM in his Affidavit sworn this 23rd day of February 1994.
CIV NO: 624 of 1993
DAVID JOHN CAWDELL IRVING Plaintiff
COLIN RUBENSTEIN First Defendant
THE HERALD & WEEKLY TIMES LIMITED Second Defendant
AFFIDAVIT OF DAVID JOHN CAWDELL IRVING
SWORN THE 9th DAY OF DEC 1993
IN OPPOSITION TO APPLICATION FOR SECURITY FOR COSTS
AND ANNEXURES "DJCI/1" AND "DJCI/4"
Date of Document: 14 December 1993
Messrs E. J. Wall & Associates Telephone: 244
Description Page No
I, DAVID JOHN CAWDELL IRVING of 81 Duke Street, London, United Kingdom, Historian, being duly sworn MAKE OATH AND SAY as follows
1. I am the Plaintiff in this matter and I swear this Affidavit in opposition to the Defendant's application for security for costs.
2. I have read the Affidavit of Wendy Mine Harris in these proceedings sworn on the 29th of October 1993 ("the Affidavit").
3. I make the following comments in reaction to the Affidavit .
4. I refer to paragraph 7 of the Affidavit and deny that the Defendants have a good defence to my action .
5, Many of the allegations in the article are lacking in specificity which makes it hard for me to comment on them. Although I can simply deny, that I am not a "neo nazi", and can deny, that I have not called for a new "German Reich", or screamed the "nazi salute", for instance, I cannot produce evidence to support such denials until the specific instances referred to are revealed.
6. Certain matter, contained in the article are more susceptible of proof however, and the allegations that I am likely to incite violence in Australia, or break Australia's anti racial vilification laws have been investigated by the Department for Immigration, Local Government and Ethnic Affairs ("the department") during the course of my recent application to the Minister: for Immigration, Local Government and Ethnic Affairs ("the Minister") for visa to visit Australia.
7. I have seen the documentation that was placed by the Department before the Minister in relation to my application for a visa and as a result of the matters referred to therein I verily believe that comments concerning me were sought from ASIO, and that the department of Foreign Affairs had enquiries made of me in Canada, Germany and London. Annexed hereto marked Annexure "DCJI/l" is a list of the documentation before the Minister.
8. Allegations under consideration by the Minister were that if allowed to visit Australia I would incite racial hatred, increase violence within Australia, and breach Australian anti racism laws. In particular, the Minister had before him an article from the Australia/Israel Review which contains many identical comments to those in the article published by the Defendants. Now produced and annexed hereto marked "DJCI/2" is a copy of the Article from the Australia/Israel Review that was before the Minister.
9. In spite of the enquiries that were made, and in spite of the fact that the Minister was fully acquainted with allegations similar to those contained in the articles published by the Defendants the Full Federal Court found in Appeal WAG 79 of 1993 ("the Federal Court Appeal") that there was no evidence before the Minister that could lead to the conclusion that I would incite violence in Australia, or breach laws within Australia, including the anti racism laws.
10. I beg leave to refer to the Affidavit of Edmund Joseph Wall sworn on the 24th of November 1993 in Supreme Court Actions 1434 and 1435 of 1993 in which he annexes the Federal Court Appeal Decision .
11. I have read the Minute to the Minister dated the 28th of January 1992 written by John Monk of the Ethnic Affairs, Policy and Project Section referred to at page 23 of the Decision of Drummond J in the Federal Court Appeal, and as a result of the matters set out therein, I verily believe that there is no evidence to suggest that my presence in Australia would breach Australia's anti racism laws or constitute violence to, or disruption to the Australian community or a group within the Australian community.
12. In the circumstances I do not believe that the Defendants could justify the assertions that I would break Australia's anti racial vilification laws, or incite violence, if I visited Australia.
13. In this regard also point out that I visited Australia on two previous occasions, namely the 8th of March 1986, and the 12th of September 1987 and on neither of those occasions did my presence in Australia incite violence, or result in my breach of any Australian law. In neither Federal Court Action WAG 33 of 1993 (my original action for judicial review) nor the Federal Court Appeal did the Minister lead evidence to suggest that my previous visits had been attended with any violence or illegal activities either on my part, or on the part of those who were opposed to my visits .
14. Insofar as the article published by the Defendants alleged that I addressed a crowd of right wing Germans in Oppeln, Eastern Poland, in May 1992 where I allegedly described Oppeln as being "the occupied part of Germany" I deny ever having made such a speech and I further deny that I have ever been to Poland. Now produced and annexed hereto marked Annexure "DJCI/3" are copies of the relevant pages of my passport to the period in or about May 1992.
15. In the circumstances, in relation to those matters referred to in the article which are capable of identification I verily believe that the defendants will have no defence to my action.
16. I beg leave to refer to paragraph 13 of the Affidavit.
17. I have about one ton of books with my publishers Veritas Pty Ltd of Cranbrook, Western Australia, the retail value of which is about $50,000.00. My new book "Churchill's War Volume 2" goes on sale in April 1994 and such sales are likely to amount, in Australia, to between $80,000.00 and $100,000,00 (based on 2,000 direct Sales) and $50,000.00 (based on discounted sates). In addition, my latest work, "Goebbels" upon which I have been working for some six years is in the process of publication and copies will be produced in Western Australia for sale.
18. Apart from the above it is true that my income is low at the moment, My income fluctuates with my literary output and, as stated above, I have been working on "Goebbels", for six years which has resulted in an income, hiatus.
19. It is also the case that the Defendants libellous articles and similar articles published in the Australian media have had an impact on my ability to earn income in Australia
20, The libels have a dual effect, in that they operate to motivate public and political opinion against me so as to prevent my entry to Australia and thus my ability to promote my books. I verily believe this to be so because of the timing a the publication of the defamatory matter to coincide with my application for a visa and from the tone and content of the article. Secondly they deter, and from the tone and content of the articles I verily believe are intended to deter, right thinking members of society from purchasing my books.
21. I have read the judgment of French J in my application for judicial review and the Judgments of the Full Court in the Federal Court Appeal and verily believe that the libel published by the Defendants, was intended to form part of the debate designed to prevent my entry to Australia.
22. As a result of my inability to travel to Australia I estimate that I have lost in the region of $80,000.00 in expenses, book sales, lecture fees, and fees for television appearances,
23. I do not deny that this loss of income has caused me financial difficulty,
24. As stated above, I believe that those financial difficulties will be resolved when sales of Churchill's War Volume 2, and later in the year Goebbels commence.
25. I refer to paragraph 14 of the Affidavit and confirm that I have a 65 year lease over property known an flat 1, 81 Duke Street, Mayfair. [details omitted]
27. In addition to the property at 81 Duke Street I also own a property at 23 Clifton Court which is occupied by my ex-wife pursuant to a Family Court settlement which I cannot sell without her Consent. The equity in that property is about £200,000,
28. I would have to seek legal advice as to whether I am able to raise money by way of mortgage on that property, but I can confirm that the equity in that house does not count against me in relation to my legal aid application in the United Kingdom.
29. In summary, therefore, the position is that I have certain capital assets, but at present, limited income from which to service those capital assets. My limited income would also make it difficult, if not impossible, for me to raise further substantial sums by way at mortgage.
30. As stated previously herein, my income according to my publishing output, and I verily believe that the forthcoming sales of Churchill's War Volume 2 and Goebbels will substantially enhance my income for a limited period.
31. I agree with the inference raised by Ms Harris in her Affidavit that I will have limited ability to meet any substantial order for security for costs, and if such costs are ordered then it is likely to mean that I will have to discontinue my present action.
32. I refer to paragraph 21 of the Affidavit and say that the contract with the Sunday Times called for them to pay me £75,000 plus VAT at 17.5%. The Sunday Times paid me US$5,000.00 plus £25,000.00 and refused to pay the rest which totals about £60,000.00.
33. I issued a High Court Writ claiming the balance of what was owed to me plus interest and damages. I am instructed by my UK solicitors and verily believe that I have a good cause of action.
34. Following the award of the contract to me of the Sunday Times to translate Goebbels' diaries the Sunday Times came under enormous pressure if from peak Jewish organisations to dishonour their contractual obligations to me, including pressure from the highly influential American Jewish Congress. The pressure included the repetition of false and malicious statements about me identical to or very similar to the statements made about me in the article "Historian of Hate" published by the Defendants herein.
35. It is true that I have applied for legal aid to issue the High Court Writ because, as deposed to herein, my income at present is limited, although my capital assets are substantial, I have been informed by the Law Society and verily believe that my private residence, and my wife's residence do not count for the purposes of calculating my entitlement to legal aid.
36. I refer to paragraph 28 of the Affidavit and say that there have been a number of County Court Judgments against me which I have been steadily paying off. Some have long been cleared, although the register does not disclose that.
37.The total amount involved in the County Court Judgments deposed to by Ms Harris, namely £7,354.22, even if accurate, will be easily paid off once income starts flowing from Churchill's War Volume 2 and Goebbels. Once again I point out that my ability to earn a reasonable income has been diminished by the type of libellous comments disseminated about me by people such as the Defendants.
38. I refer to Annexure "WAH/5" annexed to the Affidavit and to the reference that I am in danger of having the Duke Street property repossessed because the Grosvenor estate is suing me for £8,000 in service charges.
39. The truth of this matter is that the Grosvenor estate asked me for £8,000 of which I paid £3,000 and withheld the balance pending the outcome of a legal action against the estate for nuisance. This has now been settled out of Court.
40. It is typical of the Defendants that although they annexe the particular article from the Sunday Telegraph dated the 28th of March 1993, which reflects adversely on me, they omit to annexe my letter to that paper dated the 4th of April 1993 in which I corrected the matters contained in that article.
41. The truth of the matter is that:
(a) Although I have been sued by the Grosvenor estate for £8,000 I had a counterclaim pending against the estate for £10,000 which has now settled;
42. I refer to paragraph 28 of the Affidavit and say that the $29,000.00 pleaded therein has not been incurred as costs in these legal proceedings, in that to date all the Defendants have done is enter a Memorandum of Appearance, file a Chamber Summons and a supporting Affidavit.
43. It would appear from paragraph 28 that the bulk at the $29,000.00 deposed to has been incurred in the Defendants' attempting to find evidence overseas to substantiate the allegations that they made against me in the article.
44. Having read paragraph 28 of the Affidavit and the matters deposed to therein, I verily believe that the Defendants published the defamatory article about me without knowing whether or not there was evidence to substantiate the truth of what they were saying.
45. I refer to paragraph 29 of the Affidavit and I have been informed by my solicitors and verily believe that the costs deposed to therein are in the nature of solicitor/client costs and not taxed costs, and that most of the costs deposed to would not be recoverable from me even if the Defendants were successful in their defence.
46. I believe by reason of the facts herein there is an ongoing smear campaign to blacken my reputation as an historian and to cut off or substantially diminish my sources of income. The article published by the Defendant herein "Historian of Hate" is part of that campaign. The campaign has been partly successful in diminishing my income. The Defendants now seek to use my impecuniosity caused thereby as a reason to provide security of costs, knowing full well that if security is ordered in any substantial sum I will, be unable to proceed and they will not have to justify their claims in a Court of law.
SWORN by the said DAVID JOHN IRVING at 78 Brook Street, London W1Y 2AD the 9th day of December 1993
signed Julia R. Hesselberg
BRECHER & COMPANY
78 BROOK STREET, LONDON WIY 2AD