Vajda v Nine Network Australia Ltd
[2001] NSWSC 620
•16 July 2001
CITATION: Vajda v Nine Network Australia Ltd [2001] NSWSC 620 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 13099/93 HEARING DATE(S): Monday 16 July 2001 JUDGMENT DATE:
16 July 2001PARTIES :
Tibor Timothy Vajda
Nine Network Australia Limited (Defendant 1)
Magda Bardy (Defendant 2)
TCN Channel Nine Pty Limited (Defendant 3)
Endre Csapo (Defendant 4)JUDGMENT OF: Brownie AJ at 1
LOWER COURT
JURISDICTION :Supreme Court LOWER COURT
FILE NUMBER(S) :13099/93 LOWER COURT
JUDICIAL OFFICER :Bell J
COUNSEL : M. Thangaraj (Plaintiff)
B. McClintock SC with Mr Richardson
(Defendants 1 & 3)
P. Brereton SC (Defendant 4)SOLICITORS: M. Bertock (Plaintiff)
Gilbert & Tobin (Defendants 1 & 3)
A. Torok (Defendant 4)CATCHWORDS: Contempt of Court - procedure - a party making a charge of contempt may not rely on Part 18 to prove its case, although the contemnor may, by responding, waive its rights against self-incrimination CASES CITED: Reid v Howard (1995) 184 CLR 1
Vasil v National Bank of Australia (1999) 46 NSWLR 207DECISION: Plaintiff to proceed in accordance with the provisions of Part 55 rule 8 of the Supreme Court Rules.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
BROWNIE AJ
Monday 16 July 2001
Judgment
1 HIS HONOUR: The first and third defendants took objection to paragraph 6 of the affidavit of Mr Bertock, and I rejected it, saying in effect that I proposed to allow the plaintiff to adduce further evidence in relation to the subject matter of that paragraph.
2 The defendants then objected to the plaintiff being granted that leave, relying principally on the provisions of Part 55 rule 8, which, subject to sub-rule (2), requires the evidence in support of a charge of contempt to be by way of affidavit. In the course of the debate which followed, the plaintiff referred to notices to admit facts, which I was told, without objection, had been served upon the first, third and fourth defendants. I was told that the first and third defendants are represented by the one firm of solicitors, that the first defendant had responded to the notice to admit, but that the third defendant had not.
3 The plaintiff proposed therefore to adduce evidence of the service of the notice to admit facts and what was said to be a deemed admission by the third defendant That admission is said to have been deemed to have been made by virtue of the force of Part 18 rule (2).
4 The fourth defendant, I was told, had admitted some but not all of the facts mentioned in the notice to admit facts against the fourth defendant and the plaintiff proposed to rely upon some deemed admissions as against the fourth defendant. I have not seen any of those notices, but I do not think it matters at this stage.
5 The debate then came down eventually, it seems, to the fundamental question whether in proceedings for contempt of Court, the party making the charge of contempt can rely on deemed admissions of fact in circumstances where the alleged contemnor has not responded to the notice to admit facts.
6 It is clear enough, I think, that proceedings for contempt of Court such as those the subject of the present application are proceedings for criminal contempt. They are, as seems to be trite law, essentially criminal in nature.
7 In Reid v Howard (1995) 184 CLR 1 in the judgment of Toohey, Gaudron, McHugh and Gummow JJ at 11 to 12, their Honours spoke of the privilege against self-incrimination. They said, amongst other things:
- "The privilege which has been described as a fundamental bulwark of liberty is not simply a rule of evidence but a basic and substantive Common Law right."
A little later they said:
"The privilege has been described as deeply ingrained in the Common Law. It operates so that a person cannot be compelled to answer any question or to produce any document or thing if to do so may tend to bring him into the peril and possibility of being convicted as a criminal."
8 Later their Honours said:
- "The privilege against self-incrimination may be abridged by statute or waived, but that aside, it has generally been accepted that it is without real exception."
That judgment was considered by the Court of Appeal in Vasil v National Bank of Australia (1999) 46 NSWLR 207 and adopted in the context of a Mareva injunction and associated disclosure.
9 Counsel have not referred me to any case which discusses the question whether proceedings for contempt fall within the Common Law rule that I have mentioned. It seems to me that as a matter of principle it does. Contempt proceedings of the type now under consideration are, for all practical purposes, criminal proceedings.
10 The purpose of Part 18 rule 2 is to endeavour to persuade a party in civil proceedings to make admissions where it is appropriate to do so, and it seeks to achieve that end by imposing a costs sanction if appropriate admissions are not made. If in proceedings for contempt the party making the charge serves a notice to admit facts and the alleged contemnor expressly admits the facts mentioned or some of them, I see no reason in principle why that should not be regarded as a waiver of the privilege against self-incrimination. Similarly, to speak of an example used in debate this morning, if there was a notice to answer interrogatories and answers were given, then I am inclined to think that the answers to the interrogatories might be regarded as a waiver of the privilege. Perhaps, in an appropriate case, an admission or a deemed admission could be withdrawn pursuant to the provisions of Part 18 rule 2 sub-rule (3).
11 It seems to me that those who were responsible for drafting Part 55 may also have had it in mind that the privilege against self-incrimination was applicable to proceedings for contempt. I can see arguments for and against that proposition as well as the proposition that the privilege does not apply to contempt proceedings, but viewing the matter overall, it seems to me that the privilege does apply and that generally speaking I should therefore, subject to what might be said in relation to any particular matter, treat Part 55 rule 8 as applying. No doubt it would be proper to permit evidence in support of a charge to be given otherwise, in some circumstances. An obvious example is to correct a clerical error in an affidavit or a date, or somebody's name, or something of that nature, but that is not this case.
12 In all the circumstances, I rule that the plaintiff must proceed in accordance with the provisions of Part 55 rule 8. I will entertain any application under sub-rule (2), but I think that what has been said so far today probably means that the case has to be adjourned at this stage and sent back to the holding list.
(The hearing proceeded)
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