Vajda v Nine Network Australia Ltd & Ors [2001] NSWSC 840

New South Wales Supreme Court

CITATION : Vajda v Nine Network Australia Ltd & Ors [2001] NSWSC 840 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13099/93 HEARING DATE(S) : 16/7/01 - 17/7/01 JUDGMENT DATE : 26 September 2001

Tibor Timothy Vajda (Plaintiff) Nine Network Australia Limited (Defendant 1) PARTIES : Magda Bardy (Defendant 2) TCN Channel Nine Pty Limited (Defendant 3) Endre Csapo (Defendant 4) JUDGMENT OF : Brownie AJ at 1

M Thangaraj (Plaintiff) COUNSEL : B McClintock SC with Mr Richardson (Defendants 1 & 3) P Brereton SC (Defendant 4) M Bertock (Plaintiff) SOLICITORS : Gilbert & Tobin (Defendants 1 & 3) A Torok (Defendant 4) CATCHWORDS : Contempt of Court - Publication of matter allegedly having a tendency to deter the plaintiff from proceeding - No question of principle CASES CITED : Harkianakis v Skalkos (1997) 42 NSWLR 22 DECISION : Motion dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

26 SEPTEMBER 2001

BROWNIE AJ

13099/93 - TIBOR TIMOTHY VAJDA v NINE NETWORK & ORS

JUDGMENT 1 BROWNIE AJ: In 1993 two television programmes were published. The plaintiff sued the first defendant, Nine Network Australia Ltd ("Nine"), as the publisher of the programmes, and the second defendant, Ms Bardy, a person who spoke on the programmes, claiming damages for defamation. By his Further Amended Statement of Claim, filed in 1994, he asserted that the matter published by the defendants contained the following imputations, defamatory of him: that he is amongst the most evil of men; that he is a murderer; that he is a torturer; that he came to Australia as a fugitive from justice; that he knowingly sent to his death Istvan Somogyi (who was the first husband of Ms Bardy); and that he is unfit to be a citizen of Australia. 2 By its Defence, Nine admitted that it was the publisher of the programmes. It now says that in fact it was not: the publisher was a subsidiary company, TCN Channel 9 Pty Ltd ("TCN"). It says that as it was unimportant at the time it filed the Defence whether the plaintiff sued it or its subsidiary, it did not take the point, instead taking points of substance. However, the identity of the publisher of the 1998 programme, mentioned below, is important, and Nine now wishes to take the point that it was not the publisher of any of the programmes. 3 Nine and Ms Bardy have at all relevant times been represented by the one firm of solicitors, and by the same counsel. Nine and Ms Bardy pleaded in their respective Defences, amongst other matters, the defence of justification (that is, that the imputations said to have been conveyed by what they published concerning the plaintiff was substantially true, and that the publications were in the public interest). 4 The litigation proceeded slowly. Then, on or about 15 November 1998, TCN published a further television programme, in which various parts of the two earlier programmes were repeated, and amplified; and on 26 November 1998, an article concerning the plaintiff was published in Magyar Elet, an Australian newspaper published in the Hungarian language. The editor of that newspaper is Mr Csapo. By notice of motion dated 2 July 1999, the plaintiff sought orders adding TCN and Mr Csapo as third and fourth defendants (which orders have since been made), declarations that they and Nine were guilty of contempt of court, in that the various matters published in November 1998 had the tendency to interfere with the course of justice in the pending defamation proceeding, and orders punishing them. 5 The evidence adduced on the hearing of the contempt charges includes video tapes of the three television programmes in question, that is, the two published in 1993, the subject of the defamation claim, and that published in 1998, the subject of the contempt charge. It is common ground that the video tapes constitute the evidence to which regard must be had, and that the transcripts which are also in evidence should be treated as a mere aide memoir. By the end of the hearing, it was effectively conceded that Nine was not the publisher of the 1998 television programme; and TCN conceded that it was. 6 The matter published by Mr Csapo was in the Hungarian language. A translation was tendered, and it was agreed, as between the plaintiff and Mr Csapo, that the translation was accurate. Later, when Mr Csapo was being cross-examined, he said that two sentences of that translation were not entirely accurate, and he produced a different translation, by a different translator, saying it was more accurate. Mr Csapo speaks both English and Hungarian, and I accept this evidence, preferring this translation, as to the two sentences in question. 7 The litigation arises ultimately from events that occurred in Hungary in and about 1951. It seems clear that at the trial of the defamation action there will be a substantial dispute about many of these events. It is no part of my function now to decide on any of those disputed questions of fact, and on the present hearing the parties chose, no doubt for sound reasons, to carefully limit the evidence called, so as to enable only limited issues to be resolved now, and to leave the issues as to what happened in Hungary in or about 1951 to be resolved later, upon the evidence called then. When therefore I say anything about any matter that occurred in Hungary in or about 1951, I express a view that is based only upon the limited evidence now put before me: in almost every instance, upon hearsay evidence only, and put before me by one or more of the parties for the limited purpose of enabling the contempt charges to be decided, leaving many questions in debate to the ultimate trial of the defamation action. 8 For the limited purposes of the present hearing, some facts were not in dispute, or serious dispute. In 1951 Ms Bardy was married to Istvan Somogyi, and they had a son, aged two. They lived in a comfortable apartment in Budapest. Officers of a political police force known as the AVH arrested, detained, and at the least severely and repeatedly beat Ms Bardy and Mr Somogyi. He died, and on one version of the facts, he died as the result of being ill treated. On one version of the facts, he and his wife were treated in this way because another person coveted their apartment. The purported reason or justification for their arrest and subsequent treatment was an allegation that they had failed to report to the authorities that Ms Bardy's mother had committed an offence, in that she had sent a parcel to her son, in Vienna, after the son had gone abroad without permission; and it is said that even this charge was "trumped up". 9 After some years, Ms Bardy was released, and reunited with her son. She left Hungary, ultimately migrated to Australia, and remarried. In 1993 a Mr Kubinyi wrote to Ms Bardy from Hungary, telling her something of the plaintiff. She says that she went to see the plaintiff, and recognised him as the AVH officer who had tortured and abused her in 1951; and it is her case, and the case of Nine and TCN, that the plaintiff, as an officer of the AVH, signed some papers authorising (at least) the detention of Ms Bardy and Mr Somogyi. 10 On the plaintiff's case, he was an officer of the AVH, second in charge of a section, but performing administrative duties, and he had no other involvement in the mistreatment of Ms Bardy and Mr Somogyi. He himself was later arrested and detained by the AVH, and convicted improperly at a "conception" or "show" trial. Later, he too was released, left Hungary and ultimately migrated to Australia. 11 I have endeavoured to summarise the more relevant of the events of the early 1950s in neutral language, because many issues will have to be decided later, on different evidence, but the evidence put forward now points to conduct which merits much stronger language. For present purposes, all the parties appear to accept that a good deal of what happened to many people in Hungary then, including Ms Bardy and Mr Somogyi, and (on the plaintiff's case) the plaintiff, was, by contemporary Australian or Hungarian standards, utterly appalling. 12 A central issue, to be resolved at the hearing of the defamation trial, will be the nature and extent of the plaintiff's involvement in the treatment of Ms Bardy and Mr Somogyi. I express no view at all about this. I am concerned only with the charges against TCN and Mr Csapo, of contempt of court in relation to the 1998 publications. I will deal first with the case against TCN. 13 Before November 1998, the plaintiff had commenced the defamation case against Nine and Ms Bardy, and he had retained as his junior counsel in that case Mr Molomby. It seems that Mr Molomby's de facto wife, Ms Bell, had obtained funding from the Australian Film Finance Corporation, concerning the production of a feature film titled "Victims". TCN suggests now that this film was biased in favour of the plaintiff. That is certainly not established. However, given the nature of the proceedings - charges of contempt of court - the plaintiff bears the onus of proving all the relevant facts, on the criminal law standard. 14 All parties accepted that the relevant law was as stated by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-29. 15 By November 1998 a question, or series of questions, had been raised publicly within New South Wales, and particularly within the community of Hungarian migrants, concerning the treatment of Ms Bardy in Hungary in about 1951, and related matters. No party suggests that this was not a matter of public interest. It was, perhaps, of interest mainly to those with Hungarian connections, but on any view it was a matter of public interest. TCN or Nine had made allegations about it in 1993, and Ms Bell had procured public funding for her documentary. The defamation action was pending, with the defendants having pleaded justification. Ms Bell's film, which is also in evidence now, paints a very different picture to that painted by the television programmes published by Nine and/or TCN. Again, I express no view as to where the truth lies, concerning the events in Hungary in the 1950s: this was the context in which TCN published the 1998 television programme. 16 In that programme, TCN republished substantial parts of what had been published by it, or by Nine, in 1993. Of itself, that is not a contempt of court, particularly given the defence taken, of justification. The supposed contempt of court is based on the proposition that the programme had a tendency to deter the plaintiff, or litigants similarly placed, from proceeding with the pending defamation case. (An allegation made earlier, that it did deter the plaintiff, subjectively, was not pressed: since the plaintiff did not give evidence, there was no evidence to support the allegation.) 17 In part, the programme appears to be part of some controversy between Nine and its subsidiaries and those associated with them on the one hand, and the Australian Broadcasting Corporation, and those associated with it, including Ms Bell and Mr Molomby, on the other hand: both in the programme, and even on this hearing, part of what was said seems to have been directed against Ms Bell and Mr Molomby, rather than against the plaintiff, but this circumstance does not make what was published a contempt of court. 18 However, the programme responded to the content of the film "Victims". It did so in a way that might be criticised, and was criticised, but the question is whether the publication of the programme had the tendency mentioned above. 19 The particulars appended to the Amended Statement of Charge asserted the following (omitting cross-references to the detail of the evidence): "1. the program's declaration that the plaintiff has persecuted the second defendant all over again by bringing the proceedings … 2. the program's use of interviewees biased against the plaintiff … 3. the program's use of a prospective witness at the trial … and its claim that he had been tortured by the plaintiff, while he himself on the program says no such thing 4. the program's false assertion that the plaintiff had been convicted of crimes against humanity … 5. the program's omission of any reference to the fact that the plaintiff's convictions in 1953 referred to in the program occurred at a conception trial, and that those released with him had been later exonerated 6. the program's omission of any reference to material favourable to the plaintiff, indeed its pretence that such material does not exist … 7. the program's claim that unspecified evidence exists showing the plaintiff's responsibility for torture and murder … 8. the denunciatory and condemnatory attitude of the program towards the plaintiff … 9. the program's stated complicity with the second defendant in "proving … infamy once and for all. 10. the program's exposure of the plaintiff to public and prejudicial discussion of the merits of the facts of his case while it is still pending." 20 Paragraphs 4 to 6 should be set aside: there is no evidence to support the propositions that the plaintiff contends for. TCN says, first, that the balance of these matters do not constitute improper pressure on the plaintiff; secondly, what it said was true; thirdly, that what it said was in the public interest; and fourthly, that the proceedings are in the nature of "a stop writ". On the evidence, the last of these points is not established: to the contrary each of the plaintiff, Ms Bardy, those associated with Nine, and those associated with the Australian Broadcasting Corporation have all expended a great deal of time and effort, and no doubt money, attempting to collect evidence from Hungary. For reasons explained in the evidence, there are considerable difficulties involved in collecting the evidence that the various people involved are likely to want. 21 The matters set out in paragraphs 1 to 3 and 7 to 10, whether considered individually or collectively, do not seem to me to have put improper pressure on the plaintiff, in the sense that the publication had a tendency to deter the plaintiff, or others in like circumstances, from proceeding with the litigation. The plaintiff was proceeding, slowly because of the difficulties of collecting evidence, and the defendants were also still collecting evidence. The matters set out in the paragraphs mentioned appear to constitute, prima facie, the publication of defamatory matter, subject presumably to the same defences as had previously been pleaded, but they do not appear to go further. One matter that was not particularised, but was mentioned on the hearing, was the statement of Ms Bardy on the programme that the plaintiff should apologise publicly for the inhuman things he did, and that this was the right thing for the plaintiff to do. This seems to me to be closer to the borderline, but examined in its context it does not urge the plaintiff to abandon or to compromise the litigation which was pending. That is, to put pressure on him not to proceed, much less do that improperly. 22 Given these views, I need not examine the second and third lines of defence taken by TCN. 23 The case against Mr Csapo is different. On the evidence of Mr Csapo, which I accept, he did not have any intention to interfere with the course of justice, so that the plaintiff's case against him turns on whether what he published had a tendency to deter the plaintiff, or others similarly placed, from proceeding with the litigation. 24 There were 716 copies of the newspaper in question sold. Whilst I am inclined to think that, within the community of readers of a Hungarian language newspaper published in New South Wales, over a period of several years, the editorials might carry more weight than is obvious at first glance, this is not established for present purposes, and the risk that a potential juror might be prejudiced is minuscule. 25 The matters particularised as against Mr Csapo were as follows:- "1. The article's assertion that the plaintiff by bringing his proceedings has tortured the second defendant a second time for an additional 5 years … 2. the article's exposure of the plaintiff to public and prejudicial discussion of the merits of the facts of his case while it is still pending … 3. the article's denunciatory and condemnatory attitude towards the plaintiff, and its partisan attitude in favour of the second defendant 4. the article's reference to "the already proven cases of Vajda discredit all allegations in which he claimed defamation" … 5. the article's reference "it would be funny if after this he still feels like suing" …" 26 Given the context already mentioned, I consider that the only one of these matters that approaches the borderline is the last one mentioned, that it would be funny if after this the plaintiff still felt like suing. Even if this can be regarded as constituting pressure on the plaintiff to abandon his litigation, which I doubt, I do not think it can be regarded as improper pressure: it was no more than a comment made by a stranger to the principal litigation in the course of a public debate. I am not asked to decide whether it constitutes a publication of matter defamatory of the plaintiff, just whether it constitutes a contempt of court; and I hold that it does not. 27 I dismiss the motion with costs. **********