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.