Vajda v John Fairfax Publications P/L

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

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

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 who interrogated her and her husband' (para 4).

(iv) The plaintiff is the secret police interrogator who signed the arrest papers of Mrs Bardy and her husband (paras 9, 10 and 32).

(v) The plaintiff tortured Mrs Bardy during interrogation (paras 22-28).

(vi) The plaintiff 'is the man who held her life - and probably that of her husband - in his hands' (para 32).

(vii) On leaving AVH headquarters, her husband showed signs of having been seriously bashed (paras 29 and 55).

(viii) The plaintiff was the arresting officer of Mrs Bardy and her former husband (para 85).

(ix) The plaintiff is 'the very man who dealt with' her former husband's case (para 86).

(x) The plaintiff is 'the very person who was in charge of' the case of Mrs Bardy and her former husband (para 106).

(xi) Mrs Bardy's former husband 'became a target for persecution by envious party members who appropriated private property, land, business and wealth in the name of the state' (para 40).

(xii) Mrs Bardy and her former husband were 'class enemies' (para 41)." 6 The article in The Age is shorter. It does not include paras (i), (ii) and (iii) above. There are other differences which are not material. 7 The plaintiff asserts that each article gives rise to seven imputations ((a) to (g)). The defendant objects to all but one imputation. The imputation to which no objection is taken is in these terms: "(e) in the course of interrogation he beat and tortured Magda Somogyi (now Magda Bardy) in Hungary in March 1951." 8 I will deal with each of the defendant's objections in turn.

Imputations (a) and (b) 9 It is convenient to deal with imputations 4(a) and 4(b) together, since the objections are similar in each case. The imputations are as follows: "4(a) he without good cause, either legal or moral, authorised the arrest of Istvan Somogyi in Hungary in March 1951. (b) he without good cause, either legal or moral, authorised the arrest of Magda Somogyi (now Magda Bardy) in Hungary in March 1951." 10 The same imputations are said to arise from The Age article (imputations 6(a) and 6(b)). The same objections are made. The defendant asserts that each imputation is defective in form. It also says that neither The Sydney Morning Herald article, nor that in The Age, is capable of giving rise to such imputations. 11 Dealing first with the objection to form, in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson CJ endorsed the following formulation of the test by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155: "… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends." 12 The defendant asserts that the concept of "without good moral cause" could mean a number of different things, "and the precise meaning contended by the plaintiff will not be obvious to the jury". It was suggested that the concept may mean any of the following: "3(a) a lawful arrest, but in circumstances where the arrested person was innocent of any wrongdoing; (b) a lawful arrest, but in circumstances where some circumstance or circumstances peculiar to the arrested person rendered the arrest 'immoral' from some particular point of view; (c) an arrest conducted in circumstances where the person conducting the arrest knew that there was something 'immoral' about the arrest; (d) an arrest carried out without any legal justification." 13 The plaintiff responded by saying that the wording of the imputation had been specifically altered to meet this sort of objection. The original formulation was that the plaintiff "without good cause authorised the arrest …". The defendant objected to the phrase "without good cause", because it was ambiguous. Did it refer to legal cause, or moral cause? The imputation was then reformulated to cover the field. There was no justification for the arrest, legal or moral. 14 However, I believe the imputation, as expressed, is confusing. The difficulty arises, not through ambiguity concerning moral blameworthiness (cf Singleton v French (1986) 2 NSWLR 425 at 428), but through the coupling of the phrase "without good cause" with the words "legal or moral", provided as alternatives. If the jury were to find that the article conveyed that there was legal justification for the arrest, but that it was morally indefensible, would the imputation be conveyed? Would an authorisation to arrest in such circumstances be without good cause? Alternatively, if the article conveyed that there was moral justification for the arrest, but it was illegal, would the article then convey that it was without good cause? The answer, in each case, is not obvious. I believe the imputations, so expressed, are confusing. The imputations in paras 4(a) and 6(a) and 4(b) and 6(b) are therefore defective in form. 15 I should deal with a further objection, which went to capacity, since I am inclined to give leave to re-plead. The argument may be instructive in the reformulation of the imputations. On issues of capacity the touchstone is "reasonableness" (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166). Is the article reasonably capable of conveying the imputation pleaded? 16 The defendant asserts that there is no warrant for introducing the suggestion that the arrest was illegal. The article refers to the arrest warrant, said to have been signed by the plaintiff, then a major in the Hungarian secret police. The article included the following: "80. The family persisted, and before they left they managed to obtain a copy of Istvan Somogyi's internment (arrest) notice - the first clue to his fate. It stated that Istvan's crime was that he 'was aware of smuggling of people and goods and provided a hand in these'. It said his internment was 'for State security reasons' and it bore the signature of Tibor Vajda, by order of the head of the secret service." 17 The defendant in these circumstances, with some plausibility, said this: "8. It would be unreasonable to infer from this that the arrest of Mr Somogyi was without good cause legally. The article states clearly that there was good legal cause. The imputation is incapable of arising, and should be struck out." 18 Nothing is said about the arrest of Magda Somogyi, beyond that it occurred at the same time as her husband. Her interrogation included the same issues. Again, with some plausibility, the defendant says, in written submissions, the following: "The ordinary reasonable reader would understand from the lack of a reference to the contents of Mrs Bardy's arrest warrant that no such document had been found by her. That does not mean that her arrest was without good legal cause. Indeed, the reader would probably imply from the article that she had been arrested on similar legal grounds." 19 It is unnecessary to determine this issue, although I am inclined to think that the submissions of the defendant are right. It would be unreasonable for a jury, in the context of the article, to infer that, according to the oppressive laws of the regime in Hungary at that time, the arrest was illegal. However that may be, imputations 4(a), 4(b), 6(a) and 6(b) should not go to the jury in their present form. The plaintiff has liberty to re-plead.

Imputation (c) 20 Imputations 4(c) and 6(c) are as follows: "(c) he tortured Istvan Somogyi in Hungary in March 1951." 21 The defendant objects that the imputation is incapable of arising. The article does not say, in terms, that the plaintiff tortured Mrs Bardy's late husband. At its highest, it asserts that the plaintiff was implicated in her husband's arrest, and was in charge of his case. Who was responsible for his torture, and his battered state when she later saw him, is left unresolved. Indeed, the article specifically does not assign blame to a particular individual. It says: "6. Mrs Bardy and her first husband, Istvan Somogyi, were arrested, jailed and tortured by Hungary's communist regime in 1951. They were taken by police from their home one March evening and forced to leave their baby son, Ivan, behind." 22 The same phrase is repeated later in the article, when it says this: "22. In 1951 Magda Bardy and her husband, Istvan, were arrested, jailed and tortured by the Hungarian communist regime. …" 23 The plaintiff responded by saying that the meaning conveyed by the article was a matter of impression. The finger is pointed at Dr Vajda. He was a member of the Hungarian secret police. He authorised the arrest of Magda Somogyi and her husband. They were removed from their home at the same time, although later separated. The plaintiff was described in these terms: "5. 'We certainly didn't expect this outcome,' Mrs Bardy told the Herald. 'That we would find the very person who was in charge of our case in Sydney, especially in the eastern suburbs." 24 Dr Vajda is alleged to have brutally interrogated Magda Somogyi (Mrs Bardy). The headline asserts that he was her torturer. 25 The article also includes the following: "29. The trip from AVH headquarters in the back of a filthy police van took an hour. The prisoners told to stare at the floor, but she glanced up briefly. She could hardly recognise the bowed and bloodied figure opposite. It was her husband. He too, looked up. He mouthed 'I love you' and slumped down again. It was the last time she saw him." 26 Later the article says this: "55. And then he told her she was going to Kistarcsa. Nothing could have prepared Magda for the sight of her battered husband in the van on the night they were taken there. 'His hat was pulled half over his face. He was so bashed up. I had never seen anyone like him. …' Her voice trails off and she cries. It is too painful to recall." 27 The article, moreover, repeats that "the very person who was in charge of our case is in Sydney" (para 106). The plaintiff is described as "the person responsible for her husband's fate" (para 2) in The Sydney Morning Herald article, and the person who held her life, and "probably that of her husband" in his hands. 28 The ordinary reasonable reader, of course, is capable of a certain amount of loose thinking. Such a person is certainly capable of reading between the lines. It is not a large step to infer that the person who brutally interrogated Mrs Bardy, who was in charge of both cases, also tortured her husband. I believe that the imputation is capable of arising in each publication. In reaching that conclusion, I am conscious of the fact that the article in The Age did not include the reference to the plaintiff being the person responsible for Mrs Bardy's husband's fate. Imputations 4(c) and 6(c) should go to the jury.

Imputation (d) 29 Imputations 4(d) and 6(d) are in these terms: "(d) through authorising the arrest of Istvan Somogyi without good cause, either legal or moral, in Hungary in 1951, he ultimately caused his death." 30 The imputations involve the same defect as Imputations (a) and (b). I believe, for the same reasons, that the use of the words "without good cause, either legal or moral" are confusing, and the imputations are bad in form. 31 The imputations involve other difficulties. They incorporate the word "caused", described by the defendant as a "weasel word". The uncertainty, according to the defendant, is compounded by the word which precedes it, namely, "ultimately caused". The plaintiff responded by saying that the article itself was vague. It spoke in terms of the plaintiff being "responsible" for Mrs Bardy's husband's fate (in The Sydney Morning Herald) and holding her husband's life in his hands. 32 It is clear that the imputation cannot go to the jury in its present form. The plaintiff should have liberty to re-plead. I believe it better not to comment upon the causation issue until the reformulation has been made.

Imputations (f) and (g) 33 Imputations 4(f) and 6(f) and 4(g) and 6(g) are in these terms: "(f) he is morally responsible for the torture of Istvan Somogyi in Hungary in 1951. (g) he is morally responsible for the death of Istvan Somogyi in Hungary in 1951, 1952 or 1953." 34 The defendant asserts that each imputation fails to specify the precise act or condition which is said to have been attributed to the plaintiff. The plaintiff responded by referring to the words of Gleeson CJ Drummoyne Municipal Council v Australian Broadcasting Corporation (supra), where the Chief Justice said this: (at 137) "The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter." 35 Here the impression is created that the plaintiff is the person morally responsible for the torture and death of Istvan Somogyi (whether he administered the blows personally or supervised others in doing so) (cf Singleton v French (supra) at 428). I believe in each case the article is capable of conveying to the reasonable reader such an impression. Imputations 4(f) and 6(f) and 4(g) and 6(g) should go to the jury.

1. Imputations (c), (f) and (g) in paras 4 and 6 should go to the jury.

2. Imputations (a), (b) and (d) in paras 4 and 6 should not go to the jury. The plaintiff has liberty to re-plead.

3. The plaintiff should pay half the defendant's costs. **********

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