Vajda v Nine Network Australia Limited
[2000] NSWSC 873
•31 August 2000
CITATION: Vajda v Nine Network Australia Limited & ors [2000] NSWSC 873 FILE NUMBER(S): SC 13099/1993 HEARING DATE(S): 26/05/2000 JUDGMENT DATE: 31 August 2000 PARTIES :
Tibor Timothy Vajda - plaintiff
Nine Network Austalia Limited - 1st def
Magda Bardy - 2nd defendant
TCN Channel Nine Pty Limited - 3rd def
Endre Csapo - 4th def
JUDGMENT OF: Bell J
COUNSEL : T Molomby - plaintiff
B McClintock SC - 1st and 3rd defendants
Mr Brereton SC - 4th defendantSOLICITORS: Bertock & Associates - plaintiff
Gilbert & Tobin - 1st and 3rd defendants
Andrew A Torok - 4th defendant
CATCHWORDS: Contempt - improper pressure on a litigant. CASES CITED: Harkianakis v Skalkos (1977) 42 NSWLR 22
Attorney-General v Hislop [1991] 1 QB 514.DECISION: Rulings on evidence
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
Thursday, 31 August, 2000
BELL J
13099/1993 - Tibor Timothy VAJDA v NINE NETWORK AUSTRALIA LIMITED ACN 009071167 & ORS
JUDGMENT1 HER HONOUR: This matter was restored to the Defamation List on the application of the first and third defendants. Mr McClintock SC who appeared on their behalf invited me, pursuant to Pt 38 r 8 (and Pt 65 r 5) of the Supreme Court Rules 1970 (“the SCR”), to strike out portions of the affidavit of the plaintiff sworn on 1 February 2000 (“the affidavit”). Mr Brereton SC, who appeared on behalf of the fourth defendant, made a like application with respect to a number of the paragraphs of the affidavit relating to his client.
2 I propose to briefly set out something of the history of the matter. On 30 May 1993 a segment was broadcast on Channel 9’s “60 Minutes” program concerning the plaintiff. The following week a short further segment on “60 Minutes” dealt with the same subject matter. The second defendant was interviewed in the course of the program. It was her account that while she was living in Budapest in 1951 she had been interrogated and assaulted by the plaintiff who was then an officer in the State Security Authority (AVH). The latter organisation was described in the program as being the Hungarian Government’s version of the Soviet KGB.
3 The plaintiff brought proceedings in defamation against the first defendant by Statement of Claim which was filed on 13 August 1993 (proceedings No 13099 of 1993). In 1995 the plaintiff filed a Further Amended Statement of Claim. A Defence was duly filed and thereafter by letter dated 13 June 1997 the solicitors acting for the first, second and third defendants supplied particulars of the same.
4 On 16 November 1998 a further segment was broadcast on the “60 Minutes” program concerning the plaintiff and the second defendant (“the program”). In the course of the program it was asserted that the ABC had commissioned a documentary titled “Victims” which was to tell the story of both the plaintiff and the second defendant. The presenter in some introductory remarks described the second defendant as believing that she was being persecuted all over again. In this context the presenter said of the plaintiff: “this man is to be the subject of a taxpayer funded documentary branding him as a victim”. In general terms the program went on to claim that there was evidence, independent of the allegations made by the second defendant, that the plaintiff had behaved in a violent and oppressive way while a member of the AVH. A number of persons were interviewed including Dr Tibor Zinner, historian, and Dr Laszlo Varga, Director of State Archives, Budapest.
5 By Notice of Motion filed on 2 July 1999 the plaintiff sought orders including that the first and third defendants be adjudged to be in contempt of court by reason of the publication of the program. Additionally, the plaintiff by his Notice of Motion sought to have the fourth defendant joined to the proceedings and that he be adjudged to be in contempt of court by reason of the publication in the newspaper “Magyar Elet” on 26 November 1998 of an article (‘the article”) in the Hungarian language which referred to the program and made certain further observations concerning the plaintiff and the second defendant.
6 On 3 February 2000 the plaintiff filed an Amended Statement of Charge pursuant to Pt 55 r 7 of the SCR. Annexed to that Amended Statement of Charge were particulars with respect to the charge brought against both the first and third defendants and the fourth defendant.
7 The plaintiff served a copy of the affidavit on the first and third defendants on 3 February 2000. Thereafter it appears that the first and third defendants took steps to have the matter relisted.
8 The plaintiff by his particulars of the Amended Statement of Charge claims with respect to the first and third defendants that the publication of the program was intended by them to interfere with the course of justice by subjecting him to improper pressure not to proceed with proceedings No 13099 of 1993 in this Court (“the principal proceedings”). The plaintiff also contends that the program had, as a matter of practical reality, a tendency to interfere with the course of justice in relation to the principal proceedings by subjecting him to improper pressure to desist from those proceedings. Both these aspects of the program’s alleged tendency to interfere with the course of justice are particularised as follows:
1. The program’s declaration that the plaintiff has persecuted the second defendant all over again by bringing the proceedings;
2. the program’s use of interviewees biased against the plaintiff;
3. the program’s use of a prospective witness at the trial and its claim that he had been tortured by the plaintiff, while he himself on the program says no such thing;
4. the program’s false assertion that the plaintiff had been convicted of crimes against humanity;
5. the program’s omission of any reference to the fact that the plaintiff’s convictions in 1953 referred to in the program occurred at a conception trial, and that those released with him had been later exonerated;
6. the program’s omission of any reference to material favourable to the plaintiff, indeed its pretence that such material does not exist;
7. the program’s claim that unspecified evidence exists showing the plaintiff’s responsibility for torture and murder;
8. the denunciatory and condemnatory attitude of the program towards the plaintiff;
9. the program’s stated complicity with the second defendant in “proving (the plaintiff’s) infamy once and for all”’
10. the program’s exposure of the plaintiff to public and prejudicial discussion of the merits of the facts of his case while it is still pending.
9 The affidavit comprises one hundred and sixteen folios, including a number of annexures comprising copies of publications and correspondence in Hungarian. The first and third defendants object to paragraphs 11 to 44 inclusive and invite me to strike them out. The fourth defendant joins in this application (save as to paragraphs 40 and 41 which are conceded on his behalf to be admissible).
10 In broad terms it might be noted that a great deal of the material the subject of objection canvasses the plaintiff’s belief that Drs Zinner and Varga are biased against him. Much of this material is expressed in argumentative terms. Thus, in paragraph 11 the plaintiff asserts:
“Dr Zinner is in my opinion a political opportunist who was once a loyal servant of the communist regime, but who is now making a career out of criticising it and those who were part of it”.
There are other passages in this vein.
11 It is the defendants’ submission that none of the material in paragraphs 11 to 44 inclusive is relevant with respect to the charges of contempt which he brings against them. It is said to be oppressive in that, if left to stand, it will necessitate the defendants incurring significant expenditure in making investigations in Hungary and elsewhere with a view to meeting the plaintiff’s allegations.
12 Mr Molomby submitted that the whole of this material is relevant as going to the plaintiff’s knowledge and belief at the time the program and article were published. The objections as to the form of much of it when viewed in this light are said to be misconceived. Mr Molomby submitted that he was not seeking to lead it as evidence of the facts. He took me to Harkianakis v Skalkos (1997) 42 NSWLR 22 per Mason P (in a judgment with which Beazley JA agreed) at 27 and following:
“The gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who would wish to seek curial vindication of their rights.
…
There is a question as to whether the tendency is to be measured against the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of “ordinary” fortitude who might be capable of influence by similar pressure applied in similar circumstances: cf Hislop (at 526) The dual focus of the law of contempt referred to in the passage cited at the end of par 5 above suggests that the latter is the correct approach. However, I need not resolve that issue in this case.”
13 It was Mr Molomby’s submission that the subjective test is to be preferred in cases of contempt where the issue is whether the publication, as a matter of practical reality, had a tendency to interfere with the administration of justice by subjecting the plaintiff to improper pressure to discontinue his proceedings. Even if the correct test be the objective (one for which the President expressed a tentative preference and which Powell JA in that case found it to be) Mr Molomby submitted that it remains relevant to lead evidence as to the effect of publication upon the plaintiff. In this latter respect he drew an analogy with the approach taken in criminal cases where provocation is raised. On this view the Court dealing with the charge of contempt would look to the hypothetical litigant in the position of the plaintiff, clothed with his background and knowledge of the relevant events, and then assume him to be a litigant possessed of ordinary fortitude. Thus, Mr Molomby submitted regardless of whether the test be objective or subjective it was open to the plaintiff to lead evidence as to the basis of his belief that the interviewees selected by the program maker were biased against him. Such evidence bore directly on the question of the tendency of the program to exert pressure upon him (or an hypothetical litigant in his position) to discontinue his proceedings.
14 I was not taken to any authority in support of this latter contention. The question of whether contempt by improper pressure on a litigant by the publication of further material (in a case where the principal proceedings involve a claim of defamation between the same parties) is to be determined by reference to an objective or subjective test was raised in Attorney-General v Hislop [1991] 1 QB 514. In that case there was said to be no real evidence as to the plaintiff’s sensitivity or robustness. There was no alternative but to consider the matter upon the objective basis. Nicholls LJ favoured the view that the subjective test was inappropriate since the mischief of contempt of this character was the impact which the publication of such articles might be expected to have on other litigants. It is this latter consideration to which Mason P refers in the concluding portion of the passage cited in paragraph 12 above. I note that in Borrie & Lowe, The Law of Contempt, 3rd Ed, Butterworths the authors express a view that the objective test is to be preferred noting:
If contrary to what I take to be the trend of authority, the issue of whether a publication has a tendency to interfere with the course of justice by exerting improper pressure is to be determined by reference to the subjective effect of the publication upon the litigant, it would not in my view render admissible the representations contained in those paragraphs of the affidavit dealing with Drs Zinner and Varga. The Court in determining the issues raised by the charges as against the first, third and fourth defendants will be concerned with the form and content of the publications. In Hislop it was contemplated that evidence might have been led as to the sensitivity of the plaintiff to pressure (or conversely that no amount of obloquy would deter her from pursuing her claim). This remains a far cry from the material canvassed in paragraphs 11 - 20 and 22 - 27 relating to the basis of the plaintiff’s belief as to the bias of Drs Zinner and Varga.
“[T]he disadvantage of a subjective test is that it increases the uncertainty of the law in an area where uncertainty has a restrictive effect on freedom of speech” (p.209).
15 I do not accept Mr Molomby’s submission that upon the application of an objective test the court might have regard to the personal characteristics, including the background and beliefs, of the litigant. I propose to strike out paragraphs 11 - 20 and 22 - 27 of the affidavit.
16 Paragraph 21 contains an assertion by the plaintiff that the expression “nepellenes bun” (apparently used by Dr Zinner during the course of the program) has been falsely translated. The plaintiff gives what purports to be a correct translation of this expression. He cites a provision of the “official compendium of valid material criminal laws” (a copy of which in Hungarian forms an annexure to the affidavit). He purports to translate the subject provision and thereafter to express an opinion as to common usage of the expression “nepellenes bun” in Hungarian. He contrasts this with the term “emberiseg elleni bun” as it appears in Chapter 11 of the Hungarian Criminal Code. It may be open to the plaintiff to seek to prove that the program contained misrepresentations. However, it does not seem to me to be open for him to prove that fact in this way. I propose to strike out paragraph 21.
17 In his written submissions Mr Molomby asserts that paragraphs 28 to 31 “go to the circumstances of the plaintiff”. In these paragraphs the plaintiff addresses his concerns that the “60 Minutes” program may be re-broadcast in whole or in part in Hungary. He also makes assertions concerning the second defendant’s participation in a television program associated with a person named Ferenc Kubinyi. I do not consider any of this material is relevant to the issues raised by the plaintiff’s charge and I strike those paragraphs out.
18 Paragraphs 32 to 34 are said on the plaintiff’s behalf to “go to malice of the first and third defendants and to the plaintiff’s circumstances in knowing of that malice”. I commence by noting that malice is not particularised in the plaintiffs annexure to the Amended Statement of Charge. The subject paragraphs concern correspondence from the Hungarian Ministry for Interiors. The plaintiff received a letter from that Department in January 1995. In July 1996 a letter in rather different terms was sent by the Cabinet Office of the Ministry of Interiors to the plaintiff’s lawyer (and apparently to the second defendant). There appears to be some controversy surrounding these Ministry of Interiors communications. In paragraph 34, having set out in the earlier paragraphs an account of the contents and significance of the letter of January 1995, the plaintiff states:19 Paragraph 35 concerns Dr Tibor Hethelyi. During the course of the program that Dr Hethelyi is filmed speaking in Hungarian. An English translation is broadcast over his voice. This segment includes Dr Hethelyi apparently describing an occasion when he was interrogated by the plaintiff in Hungary. The translation records Dr Hethelyi saying:
If it be contended that this material goes to establish that the first and third defendants intended the program to subject the plaintiff to improper pressure not to proceed with his proceedings, it seems to me to be not capable of establishing that fact. The material in these paragraphs is objectionable in its form and irrelevant. I propose to strike out paragraphs 32 - 34.
“In my opinion, it is inevitable that the second defendant knew at that time of the documentation which I had obtained from the Ministry for Interiors, and equally inevitable that she must have understood it to be at least a major factor in the position expressed by Janet Bell. In my opinion her reaction quoted above (referring to an earlier portion of the program) in particular its reference to naivety and bringing a photographer, was a deliberate and dishonest concealment of what she knew about my documentation, and a deliberate evasion and distortion of the issue. In my opinion, it is also inevitable that the Channel Nine staff involved in this program must have had the same knowledge, and been complicit in the same dishonesty.”
“Two men entered and one of them I suddenly recognised was Tibor Vajda. He also put the question, do you recognise me? I said yes. Do you also remember my name? I replied yes and said his name then he beat me on the head with his fist and said if you remember me you dirty fascist you will remember other things as well”.
20 In paragraph 35 the plaintiff asserts that the Hungarian words spoken by Dr Hethelyi have not been accurately translated. The word “fist” is said not to have been used by Dr Hethelyi. For the reasons that I have noted earlier concerning paragraph 21 of the affidavit, I reject this paragraph.
21 In paragraph 36 the plaintiff recites that a lawyer whom he had engaged in Hungary had written to him in September 1997 stating that he could not continue to represent him. A copy of that letter, together with a translation of it, is annexed to the affidavit. This material is said to be admissible because it “goes to the circumstances of the plaintiff”. I consider it is irrelevant and I reject it.
22 Paragraph 37 annexes a copy of a computer print-out taken by the plaintiff from the “60 Minutes” internet website. In the way the matter was argued, Mr McClintock took as it were a global objection to paragraphs 11 to 44. No attention was directed to paragraph 37. While I am not persuaded of its relevance, it does not seem to me to occasion to the defendants embarrassment in the way that the other material, the subject of objection does. I consider the appropriate course is to make no ruling with respect to this paragraph at this time.
23 Paragraphs 38 and 39 are concerned with the plaintiff’s reaction to the broadcast of the program. I propose to strike out the balance of paragraph 38 from the words commencing “because of the combination of half truths” to the conclusion of that paragraph together with the whole of paragraph 39. This material is argumentative and objectionable in form.
24 On 26 November 1998 the “Magyar Elet” published an article headed “The Just Cause Could Not Be Lost Forever” which referred to the “60 Minutes” broadcast. The translation of that article which appears as an annexure to the Amended Statement of Charge asserts that the article included the following paragraph:25 The Amended Statement of Charge particularises, as against the fourth defendant, that the article was intended by him to interfere with the course of justice by subjecting the plaintiff to improper pressure not to proceed with his defamation claim and that, as a matter of practical reality, the article had a tendency to interfere with the course of justice in relation to the defamation proceedings by subjecting him to improper pressure to desist from them. Both these aspects of the article’s alleged tendency to interfere with the course of justice are particularised as arising from the following:
“After the Channel Nine report it will be harder to make the Australian television viewers believe, that the one time political police in Hungary did not employ physical mistreatment during interrogations. This time Channel 9 made it known not only that the victim recognised her merciless interrogator, but presented other people who in connection with the former AVH officer made statements about other cases. In the light of these it is unimportant that Magda Bardy’s beating and torture could not be witnessed. The already proven cases of Vajda discredit all accusations in which he claimed defamation. It would be funny if after this, he still feels like suing.”
1. the article’s assertion that the plaintiff by bringing his proceedings has tortured the second defendant a second time for an additional five years;
2. the article’s exposure of the plaintiff to public and prejudicial discussion of the merits of the facts of his case while it is still pending;
3. the article’s denunciatory and condemnatory attitude towards the plaintiff, and its partisan attitude in favour of the second defendant;
4. the article’s reference to “the already proven cases of Vajda discredit all allegations in which he claimed defamation”;
5. the article’s reference “it would be funny if after this he still feels like suing”.
26 Mr Brereton did not seek to challenge paragraphs 40 or 41 of the affidavit. Mr McClintock’s objection was expressed to be to the whole of the material contained in paragraphs 11 - 44. However, the material in paragraphs 40 - 44 relates solely to the charge brought against the fourth defendant. In the light of Mr Brereton’s concession concerning paragraphs 40 & 41 I will not deal further with them. Objection was taken to paragraph 42. The plaintiff submits that paragraph 42 is relevant as going to the circulation of the newspaper. It seems to me that evidence of circulation of the publication may be relevant to the issues raised by the plaintiff’s charge of contempt. It is to be borne in mind that the proceedings are criminal in nature. It is not open to the plaintiff to prove the circulation of the “Magyar Elet” in this way. I propose to strike out paragraph 42.
27 Paragraphs 43 and 44 were objected to as irrelevant. Paragraph 43 asserts that the same article was published in an abridged form in “Magyar Nemzet”, a Budapest newspaper. A copy of the “Magyar Nemzet” article, together with an English translation, is annexed to the affidavit. Mr Brereton submitted that evidence, if it be the case of the publication of an abridged form of the article in an overseas newspaper, is not relevant to the charge brought against the defendant. There may be force to that. However, I am not persuaded that evidence of the re-publication of the article is not capable of being relevant to the issues raised by the proceedings. This is another matter on which I prefer not to rule at this stage.
28 Paragraph 44 makes various assertions concerning the fourth defendant which do not bear relevantly on the issues raised by the proceedings. I propose to strike out paragraph 44.
29 For these reasons my orders are as follows:
1. Paragraphs 11 to 36 inclusive of the affidavit are struck out.
2. The balance of paragraph 38 of the affidavit commencing with the words “because of the combination of half truths” is struck out.
3. Paragraph 39 of the affidavit is struck out.
4. Paragraphs 42 and 44 of the affidavit are struck out.
5. The plaintiff is to pay the defendants’ costs as assessed or agreed.
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