Vajda v Nine Network Australia Limited & ors

Vajda v Nine Network Australia Limited & ors - [2000] NSWSC 873 - NSWSC 2000 case summary — Zoe

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JUDGMENT 1 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:

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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:

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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. 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.

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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. 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: "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: "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."

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Judgment (18 paragraphs)

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Cases Cited (2)