Arbeit macht frei: - Fredrick Töben

HIS HONOUR: Is what you’re suggesting that you would seek, on
appeal, to argue that it was not open to her Honour to find that the
Holocaust had occurred?
MR PERKINS: Your Honour
HIS HONOUR: ‘Yes’ or ‘no’ will do.
MR PERKINS: -that was not - that was not the way that I ran the case for
Dr Töben. That was not it at all. And the way that it was put, and what was
- what the respondent desired to put went to the validity
HIS HONOUR: Please just don’t go around in circles. What is the point
you want to run? Just say - what is it?
MR PERKINS: That it wasn’t open to her Honour
HIS HONOUR: To do what?
MR PERKINS: to deal with the matter as she did. And
HIS HONOUR: Mr Perkins, that’s been dealt with by the Full Court.
That can’t be a ground now. And it can’t be a ground seven years after the
event. That would certainly be out of time.
MR PERKINS: Your Honour, it’s accepted that that is the approach - the
approach your Honour just mentioned is the approach that your Honour
took.
HIS HONOUR: Mr Perkins, you can’t now suggest that you would have
any right - or Dr Töben would have any right to appeal against any ruling
made by her Honour prior to September 2002. You can’t suggest that,
surely.
MR PERKINS: I’m not suggesting an appeal against her Honour’s ruling.
I am suggesting appealing the ruling that we were not to be permitted to
advance the proposition that her Honour’s judgment was invalid and not
open. And your Honour - there was some discussion between myself and
your Honour about the extent to which it was possible to use the Full
Court decision which affirmed
HIS HONOUR: How is her - just - if you wouldn’t mind getting to the
point. How do you say her judgment is invalid?
MR PERKINS: Your Honour, it’s invalid for the same reasons, albeit that
the legislation is slightly different, as was the judgment which had been
made in the case of Grigor-Scott v Jones.
HIS HONOUR: But that argument was never put to me. And I’m well
familiar with the case of Grigor-Scott v Jones. I was one of the judges in it.
MR PERKINS: I understand that, your Honour.
HIS HONOUR: And that was a point you’ve never raised.
MR PERKINS: Your Honour, it’s quite
HIS HONOUR: And, in fact, I can’t see the point would ever be available
to you.
MR PERKINS: After – I beg your Honour’s pardon?
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