Vajda v John Fairfax Publications P/L - [2001] NSWSC 306

CITATION: Vajda v John Fairfax Publications P/L [2001] NSWSC 306

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 21014/95

HEARING DATE(S): 20/04/01

JUDGMENT DATE:
30 April 2001

PARTIES :

Tibor Timothy Vajda (Pl)
John Fairfax Publications Pty Limited (Def)

JUDGMENT OF: Kirby J

COUNSEL : T Molomby (Pl)
T Blackburn (Def)

SOLICITORS: Bertock & Associates (Pl)
Freehills (Def)

CATCHWORDS: Defamation - Capacity of Imputations to arise - Defects in form

CASES CITED: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Singleton v French (1986) 5 NSWLR 425

DECISION: Ref para 36

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

KIRBY J

Monday 30 April 2001

21014/95 - TIBOR TIMOTHY VAJDA -v- JOHN FAIRFAX PUBLICATIONS PTY LIMITED

JUDGMENT

1 HIS HONOUR: An action for defamation has been commenced by Tibor Timothy Vajda (the plaintiff) against John Fairfax Publications Pty Limited (the defendant), the publishers of The Sydney Morning Herald and The Age. The plaintiff complains that he was defamed by articles which appeared in The Sydney Morning Herald and The Age on the same day, 27 March 1993. The articles were in similar terms, although there were differences to which I will later refer. A Statement of Claim was issue in 1995. A further Amended Statement of Claim was filed on 30 March 2001.

2 Each of the articles is long. It is unnecessary to reproduce them in full. The Sydney Morning Herald Article had a large headline (accompanied by photographs) which was in these terms:

“MY NEIGHBOUR
MY TORTURER”

3 Immediately below the headline, in a type face larger than the text, there was the following summary of the story:

“In 1951 Magda Bardy and her husband, Istvan, were arrested, jailed and tortured by the Hungarian communist regime. Magda survived; Istvan did not. For years Magda has searched for the truth about her husband’s fate. Instead, she found the man who was her torturer - in Australia, living almost next door. Sandra Harvey chronicles a story of pain, courage and chance.”

4 The plaintiff is identified by the article as the interrogator of Magda Bardy. The opening paragraph is in these terms:

“Magda Bardy studied the face. He was older, of course, more fleshy and his hair was white. But the eyes - she could never forget them, the eyes of the man who had almost destroyed her.”

5 Counsel for the plaintiff has, helpfully, included in written submissions the assertions made by the articles which form the foundation for the imputations upon which the plaintiff relies. They are as follows:

“(i) The article’s opening proposition is about the ‘torture and death at the hands of the Hungarian secret police’ of Mrs Bardy’s former husband (para 1).

(ii) The plaintiff is ‘the man responsible for her husband’s fate’ (para 2).

(iii) The plaintiff is ‘the Hungarian secret police agent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 306
Decision Date: 30 April 2001

CaseChat Overview and Summary

In Vajda v John Fairfax Publications P/L, the dispute revolved around the publication of a defamatory statement about the plaintiff by the defendant. The plaintiff, Vajda, sought damages for defamation against John Fairfax Publications, which had published an article in the Daily Telegraph. The High Court of Australia was tasked with determining whether the imputations in the article were capable of defaming the plaintiff and whether there were any defects in the form of the proceeding that might affect the outcome.

The primary legal issues before the court were whether the published statements were defamatory and whether there were any procedural defects in the form of the proceeding that might have impacted the court's ability to hear and determine the matter. The imputations in question related to allegations of misconduct and criminal behaviour, which the plaintiff argued were false and had harmed his reputation.

The court found that the published statements were indeed capable of defaming the plaintiff. It held that the imputations in question could reasonably be understood to suggest that the plaintiff was involved in corrupt activities, which was a serious allegation that could harm his reputation and standing in the community. However, the court also noted that there were defects in the form of the proceeding. The summons did not contain a concise statement of claim, which is a necessary part of the originating process in defamation actions. Despite these defects, the court determined that the notice of motion was sufficient to inform the defendant of the nature of the plaintiff's claim. Consequently, the court allowed the plaintiff's proceeding to continue, albeit with a warning to the plaintiff to remedy the defects in form promptly.

The final orders of the court included a determination that the plaintiff's proceeding could proceed, with an instruction for the plaintiff to amend the form of the proceeding to include a concise statement of claim. The court also noted that the defendant had the right to seek an extension of time to respond to the amended proceeding. This decision highlights the importance of adhering to procedural requirements in defamation cases and the court's willingness to allow proceedings to continue where the substance of the claim is clear, despite technical defects in form.

Orders