Tziotzis v Nine Digital Pty Limited (No 5)
[2025] VSC 141
•25 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 04200
| PETER TZIOTZIS and another according to the attached schedule | Plaintiffs |
| v | |
| NINE DIGITAL PTY LIMITED (ACN 077 753 461) and others according to the attached schedule | Defendants |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 March 2025 |
DATE OF RULING: | 25 March 2025 |
CASE MAY BE CITED AS: | Tziotzis v Nine Digital Pty Limited (No 5) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 141 |
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APPEAL — Appeal against decision of Judicial Registrar to dismiss application to set aside subpoena for police records of first plaintiff’s prior convictions — Application to strike out amended defence to the extent it pleads first plaintiff’s prior convictions — Where first plaintiff’s prior convictions are spent by operation of the Spent Convictions Act 2021 (Vic) — Whether defendants contravened the Spent Convictions Act by requesting information about spent convictions — Whether any contravention of the SpentConvictions Act means that defendants’ pleadings are affected by an abuse of process — No contravention by defendants — Pleadings in defence not affected by any abuse of process —Spent Convictions Act ss 20, 21 — Appeal refused — Defendants’ pleadings not otherwise deficient — Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | J McKay | Moray & Agnew Lawyers |
| For the Defendants | S Mukerjea and C O’Beirne | Thomson Geer |
HIS HONOUR:
The first plaintiff, Peter Tziotzis, is a funeral director in Victoria. The second plaintiff is a company controlled by Tziotzis that trades under the name ‘Peter Tziotzis Orthodox Funeral Services’. The defendants are three media organisations and two journalists. This proceeding concerns two series of publications by the defendants that are alleged to be about the plaintiffs. The plaintiffs allege that the publications were defamatory because they carried meanings including that Tziotzis committed a criminal offence when he stole clothing and jewellery from a corpse.
The defendants have pleaded truth and contextual truth defences. To establish those defences and in support of a mitigation of damages plea, they rely in part on Tziotzis’ past convictions for various dishonesty offences (‘spent convictions’).
The defendants served a subpoena on Victoria Police to produce a list of Tziotzis’ prior convictions and associated documents. The plaintiffs applied to set aside the subpoena on grounds that it was an abuse of process, because Tziotzis’ prior convictions are spent by operation of the Spent Convictions Act 2021 (Vic) (‘Spent Convictions Act’) and the defendants only learned of the convictions by reason of conduct which amounted to a contravention of that Act. A Judicial Registrar dismissed the plaintiffs’ application to have the subpoena set aside on 13 December 2024, which the plaintiffs now appeal. Further, by summons dated 10 January 2025 (‘summons’), the plaintiffs have applied to strike out the defendants’ further amended defence dated 16 August 2024 (‘defence’) to the plaintiffs’ further amended statement of claim dated 26 July 2024 (‘FASOC’) to the extent it pleads the spent convictions (‘summary dismissal application’).
For the reasons that follow, I will order that the appeal and summary dismissal application are dismissed.
Background
The first series of publications commenced with a broadcast on or about 28 November 2022 (‘broadcast’). The plaintiffs plead in paragraphs [9] and [10] of the FASOC that the broadcast carried the following imputations:
9.In its natural and ordinary meaning, the Broadcast was defamatory of the first plaintiff and carried and was understood to carry the following imputations:
(a)the first plaintiff is an evil and cold-hearted funeral director who engaged in despicable and vile conduct, in that he stole clothing and thousands of dollars of jewellery given to him by grieving mother, Teresa Moraitis, to put on the body of her deceased daughter;
(b)the first plaintiff committed a criminal offence when he stole clothing and thousands of dollars of jewellery given to him in his capacity as funeral director by grieving mother, Teresa Moraitis, to put on the body of her deceased daughter;
(c)the first plaintiff is an evil and cold-hearted funeral director in that mother, Teresa Moraitis, requested and paid for a full embalming of her daughter, but the first plaintiff did not prepare the body at all, and, instead, he dumped a body bag containing her daughter’s naked and decomposed body into a damaged casket alongside mortuary instruments;
(d)the first plaintiff is an evil and cold-hearted funeral director in that he lied to grieving and distressed mother, Teresa Moraitis, at her daughter’s funeral about the reason why he could not open the casket, to conceal his conduct described in paragraphs 9(a) to 9(c) above;
(e)the first plaintiff is an evil and cold-hearted funeral director who, by telling the lie described in paragraph 9(d), prevented Teresa Moraitis from seeing her daughter one last time before she was laid to rest in a cemetery;
(f)the first plaintiff is an evil and cold-hearted funeral director in that he lied to grieving mother, Teresa Moraitis, about the location of her daughter’s body by telling her that the body was still with the coroner when he had the body;
(g)the first plaintiff is an evil and cold-hearted funeral director who told the lie described in paragraph 9(f) to cover up his neglect in taking almost two months to arrange and hold a funeral for the daughter of grieving mother, Teresa Moraitis;
(h)the first plaintiff is such a cold-hearted and neglectful funeral director that he took almost two months to arrange and hold a funeral for the daughter of grieving mother, Teresa Moraitis; and
(i)the first plaintiff is a funeral director who, by engaging in the conduct above, caused significant distress to mother Teresa Moraitis.
10.In its natural and ordinary meaning, the Broadcast was defamatory of the second plaintiff, and carried and was understood to carry the following imputations:
(a)the second plaintiff is a company owned and operated by evil and cold-hearted funeral director Peter Tziotzis, who engaged in the conduct described in paragraphs 9(a) and 9(c) to 9(g) above;
(b)the second plaintiff is a company owned and operated by a criminal, being funeral director Peter Tziotzis, who engaged in the conduct described in paragraph 9(b) above;
(c)the second plaintiff is a company owned and operated by cold-hearted and neglectful funeral director, Peter Tziotzis who engaged in the conduct described in paragraph 9(h) above; and
(d)the second plaintiff is a company owned and operated by funeral director Peter Tziotzis, who, through his conduct described in paragraphs 9(a) to 9(h) above, caused significant distress to mother, Teresa Moraitis.
The defendants deny the meanings pleaded by the plaintiffs or that the broadcast was about the second defendant. They allege in the alternative that the imputation in paragraph [10](b) of the FASOC is substantially true. The following particulars are pleaded in support of that allegation:
87.On 28 May 2009, the first plaintiff was convicted and sentenced in the Magistrates’ Court of Victoria of 16 counts of theft and 2 counts of obtaining a financial advantage by deception at Port Melbourne, committed on 7 June 2003, 7 August 2004, 4 February 2005, 27 July 2005, 3 January 2006, 1 May 2006, 21 June 2006, 20-25 August 2006, 28 August 2006, 19 October 2006, 23 October to 7 November 2006, 26 October 2006, 13 November 2006, 20 November 2006 and 18 December 2006.
88.On 14 September 2009, each of the abovementioned convictions was upheld on appeal to the County Court of Victoria.
89.The abovementioned convictions related to the misappropriation by the first plaintiff of large sums of money from the business of his former employer […].
The second series of publications commenced with a further broadcast on or about 21 March 2023 (‘further broadcast’). The further broadcast included the following quote:
It’s not just the dead Peter Tziotzis is accused of betraying, allegedly pocketing a large sum of money from a past employer.
The plaintiffs plead in paragraph [24] of the FASOC that the further broadcast carried similar defamatory meanings in respect of Tziotzis as the broadcast, and that in relation to the second plaintiff the further broadcast meant that ‘it is a company operated by a callous funeral director’ who engaged in the conduct described in the personal imputations.
The defendants plead the following contextual truth defence in relation to the further broadcast:
44. Further or alternatively, if (which is denied) the Further Broadcast was defamatory of the first plaintiff in one or more of the meanings alleged in paragraph 24 of the further amended statement of claim, then –
a.the Further Broadcast carried the following imputations of and concerning the first plaintiff (Further Broadcast Contextual Imputations):
i.the first plaintiff, without justification, locked and refused to open Andrew Avraam’s casket, causing Andrew’s grieving mother, Kristen McMahon, to become distraught;
ii.the first plaintiff is not to be trusted as a funeral director because, despite promising to provide traditional, Greek, open-casket funeral services, he routinely betrays his clients’ wishes by locking and refusing to open the deceased’s casket on the day of the funeral without justification;
iii.the first plaintiff misappropriated a large sum of money from his former employer;
iv.the first plaintiff was declared bankrupt in 2006 with unpaid debts of $91,043;
v.the first plaintiff is not to be trusted because he fails to pay his debts;
vi.the first plaintiff misappropriated $7000 given to him by an elderly couple to be paid into a funeral trust for their pre-paid funerals;
vii.the first plaintiff is such a habitually untrustworthy person that he is unfit to practice as a funeral director; and
viii.the imputations pleaded in sub-paragraphs 24(a), 24(b), 24(d), 24(e), 24(g) and 24(i) of the further amended statement of claim, if those imputations (contrary to the defendants’ denial) are found to have been conveyed;
b.the Further Broadcast Contextual Imputations are substantially true;
c.because of the substantial truth of the Further Broadcast Contextual Imputations, any other defamatory imputations of which the first plaintiff complains and which are also carried by the Further Broadcast do not further harm the first plaintiff’s reputation; and
d.accordingly the first, second, fourth and fifth defendants have a defence to the publication of the Further Broadcast pursuant to s 26 of the Act and its cognate provisions in each other state and territory of Australia.
The defendants particularise the same prior convictions in support of the contextual imputation pleaded in paragraph [44](a)(iii), as set out at [6] above.
Cashen affidavit 21 February 2025
Both parties relied on the affidavit of John-Paul Cashen, solicitor for the defendants, sworn on 21 February 2025. For the purposes of this application I accept the following evidence given by Cashen.
The fourth defendant, Sam Cucchiara, and the fifth defendant, Georgia Linnell, attended the exhumation of Helen Moraitis’ remains at Lilydale Cemetery on 22 November 2022. Andreas Tziotzis (‘Andreas’), who is Tziotzis’ brother, was also present at the exhumation. Andreas is a funeral director who was engaged in a different funeral business to the second plaintiff. While they were at the exhumation, Andreas volunteered to Cucchiara and Linnell the information that Tziotzis had a previous criminal conviction for fraud.
At about midday on the same day, Cucchiara sent an introductory text message to Andreas with his contact details. Andreas responded that evening offering to provide Cucchiara with the information about Tziotzis’ funeral bookings and location during the following week. Cucchiara accepted.
On 23 November 2022, Andreas sent a text to Cucchiara that included:
Please, Please, Please emphasise the THEFT of jewellery. The police and public will be furious.
On the morning of 23 November 2022, Cucchiara emailed the media team at the County Court of Victoria (‘CCV’) searching for information about Tziotzis’ prior criminal convictions. The CCV media team responded by saying it could not find record of any criminal matters involving Tziotzis. Cucchiara sent a further text to Andreas that included the following:
Also Andrew are you certain the fraud case was in the County Court? They don’t have any record matching his name, Could he [have] used a different name? Do you know rough dates?
Is Peter his birth name or does he have a Greek name?
Andreas gave information about Tziotzis’ name, and then sent the following text:
Call me please now if you can.
Update on his past.
Andreas then sent a further text which included that the person who sued Tziotzis ‘was his boss’ and that the amount Tziotzis had stolen was ‘$150,000+’.
At around 4:40pm on 23 November 2022, Cucchiara had a telephone conversation with Andreas during which Andreas gave information about names used by Tziotzis, and details of prior criminal charges that he said were brought against Tziotzis in 2008. Cucchiara made a file note of the conversation that he emailed to himself and Linnell. Later that afternoon, in a second telephone conversation, Andreas told Cucchiara that Tziotzis’ prior conviction was in the Magistrates’ Court of Victoria (‘MCV’) at Melbourne, and gave him the court proceeding number.
Andreas sent further texts to Cucchiara detailing other allegations against Tziotzis. On the evening of 24 November 2022, he texted to inform Cucchiara that Tziotzis had been arrested. The next morning he sent Cucchiara the following text:
He has his mobile phone with him. I think the police may have released him.
He sounded very tired, down and groggy.
He has 1 job today.His mobile is: …
On the morning of 25 November 2022, Cucchiara sent a search for information to the MCV media and communications department based on what Andreas had told him.
On 27 November 2022, Andreas sent Cucchiara the following text:
Thankyou Brother.
The calls have started.
God Bless You, Georgia & Your Families
I hope that he is stopped forever in this industry.AMEN!
On 30 November 2022, Cucchiara received a response from MCV to the effect of ‘the Registry [would] be able to assist [him] with a public enquiry search at the desk’.
In a text sent on 30 November 2022, Andreas told Cucchiara that he ‘will have further information- FACTS [in] writing within the next 24 hrs [or] less’ relating to a further allegation of fraud against Tziotzis.
On 1 December 2022, Andreas sent a text to Cucchiara that included:
Made news on multiple U.S.A. stations across U.S.A., Britain, Ireland, Greece (wants blood). Push on. …
On the morning of 6 February 2023, Cucchiara sent a text to Andreas that included:
Whatever you can get me to substantiate fraud/embezzlement – text messages with him, emails with him, documents, photos – just send it my way.
On the afternoon of 6 January 2023, Cucchiara attended the MCV Registry in person to conduct a public enquiry search in relation to Tziotzis. Cucchiara said that his understanding is that any person can pay a fee to search the MCV Register of charges, penalties and orders. Cucchiara made the following file note of that search:
Mr Peter Tziotzis sentenced in the Magistrates Court on the 28th of May 2009. The sentence was 5 months prison, with conviction.
The charges were:
- 27 theft- 2 obtain property by deception
The case reference in the Magistrates Court was X03149263.
Appealed to the County Court.
Later in the afternoon of 6 January 2023, Linnell emailed CCV a search for information about the appeal to that Court from the MCV convictions. In response, CCV wrote:
Thanks for your email.
The Court reminds you of the responsibilities and the prohibitions contained in the Spent Convictions Act 2021 and is unable to provide any information relating to this enquiry.
Linnell said that she had conducted searches with the MCV and CCV on at least 50 previous occasions, and that these had never been refused on the basis of spent convictions legislation. Cucchiara said this was the first point in time that he became aware that there was potentially an issue involving the Spent Convictions Act in relation to Tziotzis’ prior convictions in the MCV, and that he had not previously seen a response of this kind to a media request for access to documents on a Victorian court’s file.
Thomson Geer searches
Cashen said that it is not uncommon for him or members of his team to conduct criminal litigation searches on plaintiffs in the course of defamation proceedings. He said that Liam Di Martino, a solicitor employed by Thomson Geer, lodged a litigation search in relation to Tziotzis with the MCV on 23 November 2023. This was a general search for convictions, and was not limited to the information previously obtained by Cucchiara from the MCV. On 6 December 2023, in response to that search, Di Martino received copies of certified extracts of the final orders made by that Court in criminal proceedings against Tziotzis.
On 27 November 2023, Di Martino made a similar search of the CCV. The response from the CCV on 15 January 2024 included the following:
Please be advised that Judge Gamble has considered your request and granted access to the following attached documents:
• Final Record of Order
These documents should not otherwise be disseminated or published. The Court notes that the Record of Order dated 14 September 2009 may contain information relating to a spent conviction and that you should be aware of any potential obligations under section 23 of the Spent Convictions Act 2021.
The final record of order contains details of the results of Tziotzis’ appeal from the MCV convictions.
The defendants’ defence was drafted on the basis of the responses of the MCV and CCV to Di Martino’s requests. Counsel was also briefed with file notes made by Cucchiara of his telephone conversations with Andreas.
Spent Convictions Act 2021 (Vic)
The purposes of the Spent Convictions Act are set out in s 1, which reads:
The purposes of this Act are—
(a)to establish a scheme for convictions to become spent automatically or on application; and
(b)to provide for limited collection, use and disclosure of a spent conviction of a person for the purposes of administration of justice or performance of statutory functions; and
(c)to create offences for disclosing information about a spent conviction or obtaining information about a spent conviction fraudulently or dishonestly; and
(d)to amend the Equal Opportunity Act 2010 to make a spent conviction an attribute on the basis of which discrimination is prohibited under that Act.
The meaning of ‘conviction’ is dealt with in s 5, which reads:
(1) In this Act, conviction means—
(a)a finding of guilt by a court for an offence—
(i)whether or not a conviction is recorded by the court; and
(ii)whether the offence is an indictable offence or a summary offence; or
(b)an infringement conviction for an offence.
(2) For the purposes of subsection (1)(a), a finding of guilt includes a qualified finding of guilt under section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, or a finding under a provision of an interstate law or a foreign law that corresponds to either or both of those provisions.
(3) For the purposes of subsection (1), an offence includes an offence against an interstate law or a foreign law that, if it had been committed in Victoria, would have constituted an offence against a law of Victoria.
A conviction may be spent automatically by operation of the Act[1] or on application to the MCV.[2] Some convictions become spent with immediate effect on the day on which the person is convicted.[3] Other convictions become spent on expiry of the applicable conviction period.[4] The conviction period for a conviction against a foreign law is the period that applies to a conviction for the most closely corresponding offence under Victorian law.[5] A subsequent conviction may meant that the conviction period for the first conviction runs from the date of the subsequent conviction.[6] A serious conviction, which is determined by the nature of the offence or length of custodial sentence, does not become spent.
[1]Spent Convictions Act 2021 (Vic) pt 2 div 1 (‘Spent Convictions Act’).
[2]Ibid pt 2 div 2.
[3]Ibid s 7.
[4]Ibid ss 8-9.
[5]Ibid s 9(2).
[6]Ibid s 10(2).
The parties agree that for the purposes of the appeal and the application, Tztiozis’ convictions as recorded by the MCV and CCV are spent convictions in accordance with the provisions of the Spent Convictions Act.
The plaintiffs rely entirely on s 20(1) of the Spent Convictions Act, which deals with the effect of a conviction becoming spent and reads:
Subject to this Part—
(a)a spent conviction does not form part of a person's criminal record; and
(b)a person is not required to disclose to another person—
(i)the existence of a spent conviction; or
(ii)information in relation to a spent conviction; and
(c)a person must not request that another person disclose—
(i)the existence of a spent conviction; or
(ii)information in relation to a spent conviction.
There is no penalty provision or other consequence in the Spent Convictions Act for contravention of s 20.
Section 20 is in pt 3 of the Spent Convictions Act, which concerns spent convictions. The circumstances in which spent convictions are disclosable is dealt with in pt 3 div 2 of the Act. That division includes s 21, which concerns the use of criminal record information by law enforcement agencies, courts and tribunals and relevantly reads:
(1)A law enforcement agency or a court or tribunal may disclose a spent conviction as part of the disclosure of the criminal record of a person, or information contained in the criminal record of a person—
(a)to another law enforcement agency, court or tribunal—
(i)for the purposes of performing a function or exercising a power under any Act; or
(ii)for the purposes of enabling the other law enforcement agency, court or tribunal to perform a function or exercise a power under any Act; or
(b)for the purposes of performing a law enforcement function; or
(c)to any person or body, including the following, for the purpose of that person or body conducting research, statistical analysis or modelling—
(i)the Australian Bureau of Statistics;
(ii)the Chief Statistician;
(iii)the Statistician;
(iv)the Sentencing Advisory Council;
(v)a Department.
(2)On the request of the person to whom a criminal record relates, a law enforcement agency or a court or tribunal may disclose a spent conviction or information contained in the criminal record to that person.
(3)A court or tribunal may collect or use, or disclose to any person as part of the disclosure of the criminal record of a person or information contained in the criminal record of a person, a spent conviction or information relating to a spent conviction—
(a)in the course of a legal proceeding before a court or tribunal; and
(b)in the course of publication or dissemination of decisions of the court or tribunal.
(3A)A court or tribunal may collect or use, or disclose as part of the disclosure of the criminal record of a person or information contained in the criminal record of a person, a spent conviction or information relating to a spent conviction—
(a)to the Council of Law Reporting or a licensee of the Council for the purpose of preparing or publishing—
(i)a decision of a court or tribunal; or
(ii)a report of a proceeding in a court or tribunal; or
(b)to a person or body given access to a record kept by or on behalf of a court or tribunal—
(i)by or under any other enactment; or
(ii)at the discretion of a court in the exercise of its implied jurisdiction and, in the case of the Supreme Court, its inherent jurisdiction.
(4)The Commissioner employed under section 8A of the Corrections Act 1986 may collect or use, or disclose to any person as part of the disclosure of the criminal record of a person or information contained in the criminal record of a person, a spent conviction or information relating to a spent conviction if the collection, use or disclosure is in accordance with, or for the purposes of performing a function or exercising a power under, Corrections legislation or Corrections-related legislation within the meaning of section 104ZX of the Corrections Act 1986.
Amendments to the Act made by the Justice Legislation (Amendment) Act 2023 (Vic) came into effect on 10 October 2023. The amending legislation added s 21(3A) above,[7] and amended s 21(3)(a) [8] which previously read:
… in the course of legal proceedings before the court or tribunal.
[7]Justice Legislation (Amendment) Act 2023 (Vic) s 20(3).
[8]Ibid s 20(2).
The searches by Thomson Geer were made in the course of this proceeding. The plaintiffs take no issue with those searches, or with the MCV or CCV responding by providing information about the spent convictions in accordance with s 21(3)(a) of the Spent Convictions Act as amended. Further, the plaintiffs accept that s 21(1) empowers Victoria Police to respond to the subpoena by providing documents about the spent convictions.
Part 4 of the Spent Convictions Act creates an offence for unlawful disclosure of conviction information. The plaintiffs did not rely on that provision in argument.
Submissions
Plaintiffs
There are three relevant contraventions of s 20(1)(c) of the Spent Convictions Act. First, Andreas made an express or implied request that Cucchiara and Linnell publicise or disclose information about the spent convictions, to the world at large, by way of mass national broadcast. Second, there was an express or implied request by Cucchiara to Andreas to disclose information about the spent convictions. Third were the requests in January 2023 by Cucchiara and Linnell of the MCV and CCV. At the time those requests were made, s 21(3)(a) did not authorise disclosure of the spent conviction information by the MCV or CCV to Cucchiara.
The evidence discloses that Andreas displayed very considerable animus towards Tziotzis and was involved in a rival funeral business. It should be inferred from the content of their communications and all of the circumstances that Andreas approached Cucchiara and Linnell and provided information about the spent convictions in the hope that it would be published and be highly damaging to Tziotzis.
It should be inferred that by 22 November 2022 when they attended the exhumation of Moraitis’ body, the defendants’ investigation into the plaintiffs was well underway, and that they spoke to Andreas with the intent of uncovering or unearthing further damaging or incriminating material in respect of Tziotzis’ conduct. Cucchiara actively encouraged Andreas to provide further information about the spent convictions. By reason of the information Andreas provided, Cucchiara knew the convictions were more than 10 years old.
In contrast to s 23(1) of the Spent Convictions Act, which creates a criminal offence, there is no mental element to s 20(1)(c). The effect is that ignorance of the provision does not excuse its contravention. There is no requirement that a request for disclosure be put in formal terms or that the request be made for disclosure to the requesting party (that is, a request may be made for disclosure to another person or to the world at large).
By the time that the CCV responded to Linnell, she and Cucchiara knew that the Spent Convictions Act was relevant to the spent convictions. Knowledge of the relevance of the Spent Convictions Act clothes the subsequent investigations by Thomson Geer with a relevant character. While the requests for disclosure by Thomson Geer were made in accordance with the Spent Convictions Act, the fact that they were facilitated by information obtained in contravention of that Act is relevant to the exercise of discretion.
A discretion as to whether or not the documents produced by Victoria Police in response to the subpoena should be made available for inspection by the defendants is contained in s 21(3) of the Spent Convictions Act and r 42A(10) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). The discretion in s 21(3) should be exercised having regard to the need to protect a person from the limitation that a criminal record can have on access to education, employment and housing; to avoid the permanent stigma of conviction and unlawful attack upon the person’s reputation; and to avoid interference with rehabilitation. Further matters relevant to the discretion in the Spent Convictions Act and the Rules include the unlawful nature of the acquisition of the information about the spent convictions; the unlawful nature of the investigation of that matter; the policy of the Spent ConvictionsAct being to avoid a person’s reputation being tarnished well after a conviction; and the capacity of the information to distract a jury from what lies at the heart of this proceeding, being the tortious publications, by referring to matters of only peripheral relevance.
Each imputation pleaded by the plaintiffs is based on conduct that is integral to the operation of Tziotzis’ funeral business, and not on his historical dishonesty convictions. It is not possible to see how imputations that could be described as ‘grave robbery’ can be answered by those prior convictions. This is a further reason why, beyond the abuse of process ground, the spent conviction allegations relevant to the substantial truth defence should be struck out.
Two further matters are relevant to the defendants’ contextual truth pleading. First, the historical dishonesty allegations were not made in the broadcast and were never clearly raised in the further broadcast. Second, the contextual truth based on the prior convictions could not possibly be more damaging than the current ‘grave robbery’ imputation. In its current form, the pleading does not explain how no further harm could be caused by this imputation.
Finally, no material facts are pleaded to support the mitigation aspect of the defence. The underlying facts that the defendants will seek to establish to sustain the mitigation plea are not made clear in the pleading to enable the plaintiffs to understand the case they will have to meet at trial.
Defendants
The objectives of the Spent Convictions Act and the scheme of div 2 includes permitting disclosure and use of spent conviction information by courts for the purposes of the administration of justice. It is evident from the language of the legislation that the statutory intent was to exclude the exercise of powers and functions by the courts in the course of legal proceedings from the Spent Convictions Act. The Act is concerned with discrimination in the areas of education, employment, health, housing and the provision of goods and services. It is not directed to affording persons who have spent convictions any additional protection in the conduct of litigation before the courts.
The MCV and CCV searches made by Thomson Geer in late 2023 were made in accordance with the Spent Convictions Act, and were unrelated to the earlier disclosures by Andreas and to the search made by Cucchiara in January 2023. Both the defence and the subpoena to Victoria Police are based on information obtained in response to the Thomson Geer searches. As there was no abuse of process in relation to the Thomson Geer searches, there is no basis for striking out related paragraphs of the defence or to disallow the defendants from accessing documents produced by Victoria Police in response to the subpoena.
While Andreas must have been aware that Cucchiara and Linnell were investigating Tziotzis for the purposes of a potential publication, there is no evidence that he requested them to publish information about the spent convictions. There is nothing in the Spent Convictions Act that restrained Andreas from disclosing information about Tziotzis that was within his personal knowledge.
Construction of s 20(1)(c) should emphasise the words ‘spent conviction’. A person who requests information about convictions without knowing of the Spent Convictions Act or that the convictions are spent will not contravene s 20(1)(c). The protection in relation to spent convictions ultimately resides in s 23(1), which makes it an offence for persons without access to records of convictions to disclose that information, save for in certain specified circumstances. While it is accepted that Cucchiara requested certain information about the spent convictions from Tziotzis, he did not do so in contravention of s 20(1)(c).
Cucchiara described the process of obtaining information about convictions from the MCV Registry. It should be inferred that he followed that process and paid the required fee when he attended at the Registry to conduct a search about Tziotzis. The information provided to Cucchiara must have come from the relevant MCV officer conducting a search of the Court Register of Final Orders. That was a search made by Cucchiara in accordance with s 18 of the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’). The Spent Convictions Act is concerned with disclosure of spent convictions without lawful authority. Because the disclosure to Cucchiara was made with lawful authority, it was not a disclosure that contravened the Spent Convictions Act. It cannot be unlawful to perform a search at the MCV Registry, as is expressly contemplated by s 18 of the Magistrates’ Court Act. Similarly, r 1.08.1 of the County Court Criminal Procedure Rules 2019 (Vic) (‘County Court Rules’) establishes a procedure that contemplates the ability to obtain access to conviction information in response to a request.
Sections 21 and 23(1) of the Spent Convictions Act contemplate circumstances in which a person is permitted to disclose spent conviction information with lawful authority. If s 20(1)(c) of the Act was construed literally, it would mean that making a request for disclosure of information pursuant to those provisions or the provisions of the Magistrates’ Court Act or County Court Rules would be unlawful, but the disclosure of information in response to such a request would not. That outcome is inconsistent with the need for harmonious operation of legislation.
The word ‘may’ as it is used in s 21 of the Spent Convictions Act should be construed as permissive and not as empowering a discretion, otherwise the operation of the Act would be unworkable. For example, on a literal construction of s 20(1)(c), a request to the court by a party for leave to issue a subpoena in the Federal Court would be unlawful, even though there is power in the Act for the court to issue such leave.
While the court has discretion under r 42A of the Rules or as part of its inherent jurisdiction to set aside a subpoena, there is no basis for doing so on the facts of this proceeding.
Analysis
The purposes of the Spent Convictions Act are to establish a scheme for convictions to become spent, to regulate the use and disclosure of spent convictions, and to prohibit discrimination on the basis of a spent conviction. The Act achieves this third purpose by amendments[9] to the Equal Opportunity Act 2010 (Vic), which is concerned with discrimination in areas including employment,[10] education,[11] the provision of goods and services and disposal of land,[12] accommodation,[13] club membership,[14] sport[15] and local government.[16]
[9]Spent Convictions Act (n 1) pt 6.
[10]Equal Opportunity Act 2010 (Vic) pt 4 div 1.
[11]Ibid pt 4 div 3.
[12]Ibid pt 4 div 4.
[13]Ibid pt 4 div 5.
[14]Ibid pt 4 div 6.
[15]Ibid pt 4 div 7.
[16]Ibid pt 4 div 8.
Whether a conviction is spent for the purposes of the Spent Convictions Act will depend on matters including the date of the conviction; whether a conviction was recorded by a court; the nature and seriousness of the offence to which the conviction relates; the custodial sentence imposed and whether the conviction is a ‘serious conviction’; whether there has been a subsequent conviction within the conviction period; the determination of an application for a spent conviction order; and in the case of a foreign conviction, the Victorian offence that most closely corresponds.[17]
[17]Spent Convictions Act (n 1) pt 2.
As outlined in [30] above, some convictions become spent with immediate effect. For all other convictions, information about the above matters is required to calculate the relevant conviction period and determine whether the conviction has become spent.
On the evidence in this proceeding:
(a) a person in the position of Cucchiara or Linnell, having received information about a conviction, could only hope to clarify whether it is spent by making further enquiries that probably include searches of court records;
(b) there is no single record of conviction information available to enable a person to know whether a conviction has become spent; and
(c) in many cases, it will only be the person convicted who is in a position to know whether the conviction is spent.
This proceeding is a good example of the potential complexity when determining whether a conviction is spent. It was only after a third affidavit was made about the matter by Christina Segaan, solicitor for the plaintiffs, that the evidence was sufficient to establish, for the purposes of the appeal and application, that the convictions disclosed by the Thomson Geer after conducting searches of the MCV and CCV were spent. Segaan’s evidence was based on information provided to her by Tziotzis.
There is no suggestion that Cucchiara, Linnell or Andreas were aware that Tziotzis’ convictions were spent at any relevant time. The most that can be said is that from the afternoon of 6 January 2023, Linnell and Cucchiara knew that the MCV convictions were more than 10 years old and were on notice of the potential relevance of the Spent Convictions Act.
Linnell and Cucchiara could have made further searches for subsequent convictions with MCV or CCV. However, because the extended definition of ‘conviction’ includes offences against interstate and foreign law, it was not possible for Cucchiara and Linnell to be certain whether the convictions were spent. If the plaintiffs’ submissions were accepted, any search made by Cucchiara or Linnell in an attempt to clarify whether Tziotzis’ convictions were spent would have amounted to a contravention of s 20(1)(c) of the Spent Convictions Act.
There is a statutory regime governing the search of conviction records in the MCV and CCV.[18] The right to make a search is not restricted to convictions that are not spent.
[18]Magistrates’ Court Act 1989 (Vic) s 18; County Court Criminal Procedure Rules 2019 (Vic) r 1.08.1.
The above context is relevant to the construction of s 20(1) of the Spent Convictions Act, which is concerned with ‘a spent conviction’. A person does not contravene s 20(1)(c) by making a request for disclosure of the existence of a conviction or information in relation to a conviction. To contravene this provision, the request must be for disclosure about ‘a spent conviction’. A person making a request may contravene the provision if they know that a conviction or class of convictions about which they are seeking disclosure are spent, or if the request is for disclosure of information in relation to convictions that are spent. However, there is no evidence that Cucchiara, Linnell or Andreas knew or could have known that Tziotzis’ convictions were spent for the purposes of the Spent ConvictionsAct, or that they had made a specific request for spent conviction information.
Further, a search of court orders made in accordance with the statutory provisions which govern the process of that court is not a request that a person disclose the existence of a spent conviction or information in relation to a spent conviction for the purposes of the Spent Convictions Act.
I am not satisfied that Cucchiara, Linnell or Andreas have contravened s 20(1)(c) of the Spent Convictions Act.
If I am wrong, then I would conclude that any contravention of s 20 of the Spent Convictions Act that could be established by Tziotzis would not be a sufficient basis to set aside the Victoria Police subpoena, or to strike out the paragraphs of the defence that rely on Tziotzis’ prior convictions. First, as I have already observed, there is no statutory consequence for contravention of the Spent Convictions Act. I accept, for the purposes of this analysis, the plaintiffs’ submission that s 20(1)(c) establishes a norm of conduct relating to requests for disclosure about spent convictions. If that is so, the degree and circumstances of departure from the norm must be relevant to an exercise of discretion by the court about the use of information obtained about spent convictions.
Second, information about Tziotzis’ convictions was initially volunteered by Andreas to Cucchiara and Linnell. It is clear that Andreas was keen to assist the defendants with their investigation of Tziotzis. However, I do not accept that Andreas volunteering to Cucchiara and Linnell that Tziotzis had a previous criminal conviction for fraud amounted to a request by him that they disclose that information by publishing it to the world at large.
Third, the requests by Cucchiara for Andreas to provide further information and the search requests to MCV and CCV were done without knowledge of the Spent Convictions Act or that the convictions were or may be spent.
Fourth, I accept that Cucchiara and Linnell followed the MCV and CCV statutory procedures when they made requests of those courts for information about Tziotzis’ convictions.
Fifth, the defendants did not convey the detailed information that Cucchiara obtained from MCV as part of the publications. The defendants may have been circumspect about communicating the MCV information as a result of being told by the CCV about the possible relevance of the Spent Convictions Act. The limited information conveyed in the second series of publications related only to allegations of, and not convictions for, dishonesty. The published information is consistent with what Andreas told Cucchiara, being that Tziotzis had taken a large amount of money from a former employer.
Sixth, the Thomson Geer searches were clearly permitted following the amendments to the Spent Convictions Act, and were made in accordance with the MCV and CCV statutory procedures. There were good reasons for the searches to be performed, even in the absence of the information obtained by Cucchiara from the MCV on 6 January 2023. The defendants were aware of the information that Tziotzis had prior convictions, as volunteered by Andreas. They had notice that the Spent Convictions Act was potentially relevant because of the CCV’s response to Linnell’s search request. They knew that Tziotzis’ criminal history was potentially relevant to the criminality imputation pleaded by Tziotzis, to mitigation of damages, and in light of the information conveyed about dishonesty allegations in the second series of publications. Thomson Geer needed to make the MCV and CCV searches to properly investigate and respond to the plaintiffs’ claims and to attempt to clarify any issues under the Spent Convictions Act.
Seventh, the subpoena to Victoria Police was based on the detailed information provided in response to the Thomson Geer searches. The subpoena did not depend on information obtained by Cucchiara in response to requests that arguably contravened s 20(1)(c). The subpoena would have been issued in any event.
The above reasons dispose of the appeal from orders made by the Judicial Registrar in relation to the Victoria Police subpoena. For the following reasons, I will also dismiss Tziotzis’ application to strike out those parts of the defence that plead or particularise Tziotzis’ prior convictions.
First, an application for an order under r 23.02 of the Rules should be made promptly.[19] The amended defence to the plaintiffs’ amended statement of claim was filed on 20 March 2024. On 30 April 2024, Daly AsJ ruled on an application by the defendants to strike out some of the imputations pleaded by the plaintiffs. There was reference to the defendants’ truth and contextual truth pleadings in the context of that application. There was further extensive discussion about the defendants’ pleadings during the hearing before Burgess JR on 6 December 2024 in relation to the Victoria Police subpoena dispute. The plaintiffs have not explained their delay in bringing the strike out application.
[19]John Holland Construction and Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 8 VR 681, [7]; Ledlin v Harperway Pty Ltd [2021] VSC 745, [62], [89].
Second, for the above reasons, I have concluded that insofar as the defence raises Tziotzis’ criminal history, it does not constitute an abuse of process.
Third, paragraph [10](b) of the FASOC pleads as a component of the imputation that the second plaintiff is owned and operated by a criminal, namely Tziotzis. I accept the defendants’ submission that as currently expressed, the imputation is not confined to Tziotzis only being a criminal because he engaged in the conduct described in paragraph [9](b), and that the justification defence raising Tziotzis’ prior criminal convictions is a response to a fair understanding of the imputation as pleaded. The plaintiffs have said that if necessary, they will apply to amend the pleading to confine the imputation of criminality to Tziotzis engaging in the conduct described in paragraph [9](b) by substituting the words ‘because he’ for the word ‘who’ in paragraph [10](b). If that amendment is made, the basis for the justification defence raising Tziotzis’ prior criminal convictions may fall away.
Fourth, whether the contextual imputation is capable of being conveyed to the ordinary reasonable viewer requires consideration of the publication as a whole to determine the most damaging meaning that could be put on the impugned words, rejecting any strained or unreasonable interpretation.[20] The contextual imputation is that Tziotzis misappropriated a large sum of money from his former employer for his own use. As the defendants point out, there were other matters concerning Tziotzis’ honesty conveyed by the further broadcast, including that he failed to pay his debts and that he misappropriated $7000 from an elderly couple. The line from the further broadcast quoted at [7] above, viewed in the context of the further broadcast as a whole, is capable of being understood to mean that Tziotzis deceived or misled a past employer by dishonestly taking a large sum of money from the employer for his own use. The further broadcast is capable of conveying the contextual imputation. Whether the imputation is in fact conveyed by the publication will be a matter for the jury at trial.
[20]Lewis v Daily Telegraph Ltd [1964] AC 234, 277 (Lord Reid); Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 192 [17] (Gleeson CJ, McHugh, Gummow and Heydon JJ); Trkulja v Google LLC (2018) 263 CLR 149, 160 [31]; Sali v Australian Broadcasting Corporation [2013] VSC 388, [18] (Beach J); Farquhar v Bottom [1980] 2 NSWLR 380, 385–6.
Fifth, I reject the plaintiffs’ submission that the contextual truth imputation pleaded in paragraph [44](a)(iii) of the defence should be struck out because it is a gratuitous slur of no legal or probative relevance to the defamatory imputations about which the plaintiffs complain, and is at most a ‘drop in the ocean’ in terms of the overall harm caused to the plaintiffs by the further broadcast. The contextual truth imputations relied on by the defendants are set out in full in paragraph [8] above. Each contextual imputation does not stand alone, but is to be considered together with all of the contextual imputations that are ultimately established. This includes those imputations pleaded by the plaintiffs that the defendants seek to establish as being true.[21] The jury will be required to consider whether the defamatory imputations that are carried by the further broadcast cause no further harm to Tziotzis’ reputation because of contextual truths that are established as being substantially true, assessed together. If the impugned contextual truth imputation is established, it will be relevant to that assessment by the jury.
[21]Defamation Act 2005 (Vic) s 26.
Sixth, the defendants are entitled to plead Tziotzis’ prior convictions in mitigation of damages because the convictions, having been entered in open court, are likely to be admissible evidence of public knowledge of Tziotzis’ general reputation.[22] I accept the defendants’ submission that there is no requirement for them to further particularise whether, and the extent to which, Tziotzis’ prior convictions are ‘well-known’ in the community. The plaintiffs raised, without fully arguing the issue, whether the defendants’ reliance on Tziotzis’ prior convictions was inconsistent with the convictions being spent in accordance with the Spent Convictions Act. The prior conviction pleadings are based on information obtained in response to the Thomson Geer searches, which did not contravene the Spent Convictions Act. Section 21 of the Act contemplates spent convictions being disclosed and used in the course of a legal proceeding before a court. The plaintiffs did not identify any inconsistency between the scheme of the Spent Convictions Act and the defendants’ pleading of the spent convictions. The further issue raised by the plaintiffs is not a ground for striking out the mitigation defence to the extent that it relies on the spent convictions. An argument by the plaintiffs about the admissibility of evidence of the spent convictions that relies on the Spent Convictions Act is a matter for trial.
[22]Goody v Odhams Press Ltd [1967] 1 QB 333, 340; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335, [250]-[251].
Other matters
The plaintiffs’ summons also sought suppression and confidentiality orders to prohibit disclosure of the spent convictions. It was agreed at the hearing that consideration of that part of the plaintiffs’ summons should follow the outcome of the appeal and summary dismissal application.
Conclusion
The appeal and summary dismissal application will be dismissed. I will hear from the parties in relation to the balance of the plaintiffs’ summons and any consequential orders.
SCHEDULE OF PARTIES
PETER TZIOTZIS
First Plaintiff
and
P AND S ORTHODOX FUNERALS PTY LTD (ACN 600 643 141)
Second Plaintiff
and
NINE DIGITAL PTY LTD (ACN 077 753 461)
First Defendant
and
NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407)
Second Defendant
and
THE AGE COMPANY PTY LTD (ACN 004 262 702)
Third Defendant
and
SAM CUCCHIARA
Fourth Defendant
and
GEORGIA LINNELL
Fifth Defendant
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