Vajda v John Fairfax Group Pty Limited [2000] NSWSC 1184

New South Wales Supreme Court

CITATION : Vajda v John Fairfax Group Pty Limited [2000] NSWSC 1184 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 21014/95 HEARING DATE(S) : 11 December 2000 JUDGMENT DATE : 15 December 2000

PARTIES : Tibor Timothy Vajda (Plt) John Fairfax Group Pty Limited (Def) JUDGMENT OF : Levine J

COUNSEL : T Molomby (Plt) T Blackburn (Def) SOLICITORS : Bertock & Associates (Plt) Freehills (Def) CATCHWORDS : SCR Pt 32A - dismisal of inactive proceedings DECISION : See paras 29-34

DLJ:1 (CAV) [2000] NSWSC 1184

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No.21014/95

JUSTICE DAVID LEVINE

FRIDAY, 15 DECEMBER 2000

TIBOR TIMOTHY VAJDA (Plaintiff)

v

JOHN FAIRFAX GROUP PTY LIMITED (Defendant)

JUDGMENT: (SCR Pt 32A - dismissal of inactive proceedings) 1 HIS HONOUR: On 27 March 1993 the defendant published the relevant matters. 2 A Statement of Claim seeking damages for defamation was filed on 5 October 1995. 3 The matter was before the court on 27 October 1995 and directions were made in accordance with Short Minutes of Order. On 3 November 1995 an amended Statement of Claim was filed to correct the name of the defendant. A request for further and better particulars was made by the defendant on 30 November 1995 and these were provided by the plaintiff by letter dated 19 January 1996. Further particulars were requested on 1 March 1996 and were supplied on 13 March 1996. The defendant was requested to file its defence on 19 April 1996 and again on 10 May 1996. 4 The matter was relisted in the Defamation List on 7 June 1996 and orders were made requiring the defendant to file a defence within 14 days. A defence was filed on 20 June 1996. On the same day, the defendant's solicitors notified objections to some imputations in the amended Statement of Claim. On 3 July1997, over a year later, the plaintiff's solicitors sent a draft further amended Statement of Claim. No reply was received to this communication. On 9 April 1998 the defendant was requested to consent to the filing of the proposed further amended Statement of Claim which it declined to do by letter dated 23 April that year. The defendant's solicitors also by their letter dated 23 April 1998 raised matters by way of objection to the imputations proposed. 5 The next event which occurred in court took place on 15 December 1998 in what was the first of a call up of defamation cases considered to have been "dormant" and amenable to disposal under Pt 32A which had been introduced in August 1998. 6 The only record of what occurred on that day is that the action was stood out of the list with liberty to restore on five days notice. It is clear from this, of course, that the action was not dismissed under SCR Pt 32A. I shall return to this day and events surrounding it. 7 As far as the court is concerned what next happened was that on 10 July 2000 a communication was sent to the parties indicating that no proceedings having been taken for over a year by any party, pursuant to Pt 32A the court would of its own motion dismiss the proceedings after the expiry of twenty-eight days unless a party satisfied the court that special circumstances exist that render it desirable that such an order not be made. A letter was issued for the Principal Registrar and indicated that the court would not make an order under Pt 32A without giving the parties a reasonable opportunity to be heard. Written application must be lodged with the court before the expiration of twenty-eight days. 8 On 4 August conformably with the form of letter sent by Principal Registrar, the solicitors for the plaintiff wrote to her informing her that the matter was closely related to the action of Vajda v Nine Network Australia Limited & Bardy (13099/93) and Vajda v Bardy (18841/93) said to involve publications by other defendants of material similar to that now sued upon. 9 The letter from the plaintiff's solicitors went on to explain that on 15 November 1998 the first defendant in the first of the above mentioned other actions (Channel Nine) published a repetition and aggravation of the substance of its original broadcast, the effect of which, it was contended, constituted contempt. 10 Proceedings for contempt had been instituted, so the Principal Registrar was informed, against Channel Nine by way of Notice of Motion. As at 4 August 2000 those proceedings were active. (I interpolate, that the substantive hearing of the contempt matter awaits allocation from the Holding List). It was in those "special" circumstances that the Principal Registrar was asked that the proceedings not be dismissed. 11 What then happened was that the parties were informed again by the Principal Registrar by letter dated 4 October 2000 that what was described as "application of the plaintiff" was to be listed before me on 16 October 2000. On that occasion the plaintiff would be required to show cause as to why the proceedings should not be dismissed under Pt 32A. On 16 October no order was then made dismissing the action under Pt 32A but directing that an affidavit would have to be filed and served by 20 October. The matter was to be listed on 25 October. Costs were reserved. 12 On 25 October directions were given as to any evidence to be relied upon by the defendant in opposition by the plaintiff "showing cause" and the matter was stood over for hearing on 20 November. 13 The hearing of the question as to whether the plaintiff had shown that there were special circumstances took place on 11 December. 14 Mr Bertock, solicitor for the plaintiff swore an affidavit of 20 October. He deposes (para 2) that the primary events involved in the litigation had occurred in Hungary in the late 1940's and early 1950's and of the necessity for the preparation of the case to try to obtain information and documentation from Hungary about those events. It will be necessary for the plaintiff to attend Hungary in person to obtain relevant information as neither his solicitor nor counsel speak that language. The same historical material is required in all the actions especially that in which there are the pending proceedings for contempt, namely the action against Channel Nine. The plaintiff had retained a lawyer in Hungary in 1997 and annexure B to Mr Bertock's affidavit (the English translation of the lawyer's letter) indicates that as at 3 September 1997 those lawyers were not prepared to take on the case. 15 Mr Bertock goes on to depose (para 9) that throughout 1998 the plaintiff was compiling a draft discovery list which was received by plaintiff's counsel on 10 November 1998. It included well over two hundred newspaper articles in Hungarian and more than twenty books in that language. 16 What is not stated is in respect of which issues joined in which action the processes of so called "discovery" was embarked upon. It is to be understood however that any such process would be relevant to the three actions to which I have referred. 17 The alleged publication constituting the contempt took place on 15 November 1998. Some idea of what is involved in that proceeding is in exhibit E1 to the affidavit of Mr Bertock which comprises a long affidavit of Mr Vajda and annexed material in English but principally in Hungarian. 18 It is important to note however, that that broadcast on 15 November 1998 took place one month before the "call up" on 15 December 1998. 19 Mr Bertock in his affidavit deposes that the order made standing the matter out of the list was made "without objection from the defendant" upon counsel explaining that proceedings for contempt were then being considered because of the program by Channel Nine on 15 November 1998. It was Mr Bertock's understanding that the Fairfax action would be relisted and could be relisted as a consequence of the order made on 15 December 1998 after the contempt matter had been resolved. 20 Thus the special circumstances are constituted by the contempt proceedings arising from the telecast one month before the call up on 15 December 1998 and the understanding of the solicitor for the plaintiff that the order made in the Fairfax action required no further action on his clients' part in that action until the resolution of the contempt proceedings against Channel Nine. 21 The non corporate litigants in all these cases I am persuaded are elderly, do not enjoy good health and are no doubt personally concerned about events that occurred nearly a half a century ago. 22 The defendant' solicitor, Mr Tappere swore an affidavit on 6 November 2000. The only real matter in issue is his understanding of what occurred at the call up on 15 December 1998. He states that he appeared for the defendant at that call up and submitted that the plaintiff's claim should be dismissed. 23 Mr Blackburn of counsel for the defendant indicated from the bar table that Mr Tappere disputes that the order made on 15 December 1998 was made "without objection by the defendant". 24 I add that the "holding" defence filed by the defendant in this action on 19 June 1996 raises a defence of qualified privilege under s 22 and relies upon the other two actions in mitigation of damages pursuant to SCR Pt 67 r 18(2). 25 It is contended for the defendant that Mr Bertock's understanding was quite unfounded and that there was no reason why he could not have taken steps to have argued the question of the alleged defects in the imputations in the Fairfax matter irrespective of what was happening in the Channel Nine matter. 26 It seems perfectly clear to me that the order I made on 15 December 1998 standing the matter out of the list with liberty to restore was made in the context of there having occurred the alleged telecast in contempt by Channel Nine in cognate proceedings. As at December 1998 the plaintiff had taken no action as far as the court was concerned and one might hypothesise that in the normal course of events Pt 32A would have operated to have the action dismissed. 27 Save for the events of 15 December 1998 I would have little hesitation in dismissing the action under Pt 32A; nothing had happened within the relevant period as between the plaintiff and the defendant Fairfax and given the commonality of both the background and likely issues in the Fairfax action with the other actions it could acceptably be argued that whatever happened in the Channel Nine case was irrelevant to the conduct of the Fairfax litigation. 28 Neither Mr Bertock nor Mr Tappere was cross examined on his affidavit. Doing the best I can on the material available to me I must indicate a view that it makes "some sense" that the matter was stood out of the list from 15 December 1998 in the context of an alleged contempt having being committed by a defendant in a cognate action. I am not in a position to find that it is incorrect or indeed false that Mr Bertock understood that as a consequence of the order of 15 December 1998 no action need be taken in the Fairfax case until the contempt proceedings in Channel Nine were disposed of. 29 In that unusual and difficult state of affairs I decline to dismiss the action under Pt 32A, that state of affairs to which I have referred constituting relevant special circumstances. 30 It must be understood however, that from this time on whatever happens in Channel Nine's case is irrelevant to the prosecution of the plaintiff's action against Fairfax unless good cause be shown why it will be relevant. 31 The plaintiff will be required to prosecute his case against Fairfax with diligence, irrespective of the contempt proceedings, but again unless good cause is shown why he is unable to do so. Nothing hitherto has been established as a good reason for not prosecuting the case against Fairfax to the extent of having the question of the imputations resolved. 32 One further remark to be made is this; whilst it might be the fact that in the context of damages and the issue of falsity the plaintiff will be most concerned to examine archival material from nearly half a century ago, as far as the defendant is concerned in the light of its defence hitherto filed of privilege more likely than not it will be concerned with events of seven years ago. 33 I list the matter for argument in the Defamation List on 30 March 2001. 34 In the unusual and extraordinary circumstances attending these proceedings I consider it appropriate that costs of and incidental to the determination of the question of whether the plaintiff under Pt 32A has shown special circumstances, be costs in the cause. **********