Tziotzis v Nine Entertainment Co Pty Ltd
[2024] VSC 203
•30 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 04200
BETWEEN:
| PETER TZIOTZIS & ANOR (according to the attached Schedule) | Plaintiffs |
| v | |
| NINE ENTERTAINMENT CO PTY LTD (ACN 122 205 065) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 April 2024 |
DATE OF RULING: | 30 April 2024 |
CASE MAY BE CITED AS: | Tziotzis v Nine Entertainment Co Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 203 |
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DEFAMATION — Application by publisher defendants to strike out alleged defamatory imputations contained in a broadcast referring to a police investigation into the conduct of the plaintiff pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) —Whether broadcast capable of giving rise to imputations pleaded by plaintiff — Whether transient qualifying statements in the broadcast overcome any imputation of guilt in the mind of a reasonable person — Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 and Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D Gilbertson KC with Ms H Jager of counsel | Moray & Agnew |
| For the Defendants | Mr S Mukerjea of counsel with Mr C O’Beirne, solicitor | Thomson Geer |
HER HONOUR:
The first plaintiff in this proceeding, Mr Peter Tziotzis, is a funeral director, and is the principal of the second plaintiff, P and S Orthodox Funerals Pty Ltd, which provides funeral services targeted at Victoria’s Greek Orthodox community. On 28 November 2022, Mr Tziotzis was the subject of a segment on the television program ‘A Current Affair’ (‘ACA’) (‘first broadcast’).
The first broadcast was also published on ACA’s YouTube and Facebook pages and was titled ‘Funeral director accused of stealing jewellery and clothing from dead woman’. The first broadcast was preceded by a promotional trailer with the title ‘Undertaker accused of grave robbery’, published on, among others, the social media platform then known as Twitter. A news article with similar subject matter to the first broadcast was also published in the online and print editions of ‘The Age’. The publisher of The Age is part of the same group of companies which published the first broadcast and the promotional trailer, being the first and second defendants in this proceeding. The third defendant is the publisher of The Age, and the fourth and fifth defendants are journalists employed by ACA and The Age.
The flavour of the subject matter of and allegations made in the first broadcast is able to be discerned from the following paragraph of the amended statement of claim filed on 6 December 2023:
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.
The imputations pleaded above were said to be defamatory of the plaintiffs, and were said to have caused serious harm to the plaintiffs’ reputations, and in the case of the second plaintiff, serious financial loss.
The defendants have denied that the first broadcast and associated publications carry the imputations complained of by the plaintiffs, but in their amended defence filed on 20 March 2024, have pleaded in the alternative that the imputations referred to above are substantially true within the meaning of s 25 of the Defamation Act 2005 (Vic) and at common law, and provided detailed particulars of justification.[1]
[1]The defendants also rely upon the defence of contextual truth, and also rely upon the truth, substantial truth or partial truth of any of the matters relied upon for their defence of justification in mitigation of damages. It is not necessary to canvass the matters relied upon by the defendants in their defence in any detail for the purpose of the current applications.
The first broadcast is not the primary focus of the application by the first, second and fourth defendants (‘defendants’), but the plaintiffs’ allegations and the defences concerning the first broadcast provide the relevant context to the current application.
On 8 February 2024 the defendants issued a summons seeking the following relief:
1.Pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015, the following sub-paragraphs in the Amended Statement of Claim filed on 6 December 2023 (ASOC) be struck out on the basis that they fail to disclose a cause of action or will prejudice, embarrass, or delay the fair trial of the proceeding:
a. 24(a);
b. 24(b);
c. 24(e);
d. 24(f);
e. 26(c)(v);
f. 26(c)(vi); and
g. 26(c)(vii).
2.Within 7 days, the Plaintiff serve further and better particulars of the following subparagraphs in the ASOC, setting out the date of each pleaded communication/publication:
a. 26(b)(ii);
b. 26(b)(v);
c. 26(b)(vi);
d. 26(b)(vii);
e. 26(b)(viii); and
f. 26(b)(ix).
3.The Plaintiff pay the Defendants’ costs of and incidental to this summons.
The applications in paragraphs 1(e) to (g) inclusive and paragraph 2 of the summons have been resolved by the provision of particulars to the satisfaction of the defendants, and by a concession by the plaintiffs to the effect that sub-paragraphs 26(c)(v), (vi) and (vii) are duplicative, and that those matters are properly contained in sub-paragraph 26(b).
Accordingly, the sole outstanding issue in the defendants’ summons (apart from, of course, costs) is the application to strike out sub-paragraphs 24(a), (b), (e) and (f) of the amended statement of claim, which concerns what is described as the ‘further broadcast’.[2] The further broadcast was a program broadcast by ACA on 21 March 2023 with the title ‘Distraught families feel ‘sick;’ as more allegations come to light over embattled funeral director’. The further broadcast is also available for viewing on the Nine Network’s website and the ACA Facebook page.
[2]No allegation is made against the publisher of The Age or its employee with respect to the further broadcast.
Paragraph 24 of the amended statement of claim provides as follows:
In its natural and ordinary meaning, the Further Broadcast was defamatory of the first plaintiff and carried and was understood to carry the following imputations:
(a)the first plaintiff is a callous funeral director, who locked and refused to open the casket of Teresa Moraitis’ daughter because he had turfed her body held inside a body bag into the casket like a piece of garbage after having stolen the clothing and jewellery provided to put on her body;
(b)the first plaintiff is a callous funeral director, who engaged in the same type of conduct described in paragraph 24(a) above in respect of Kristen McMahon’s 16-year-old son who was killed;
(c)the first plaintiff is a callous funeral director, who lied to Kristen McMahon about the collection of her son’s body from the Coroner to cover up his neglect in taking a considerable period of time to collect his body;
(d)the first plaintiff is a callous funeral director, who has left Kristen McMahon’s 16-year-old son without a headstone after having promised to provide one;
(e)the first plaintiff is a callous funeral director, who engaged in the same type of conduct described in paragraph 24(a) above in respect of the deceased sister of client Georgina;
(f)the first plaintiff is a callous funeral director, who engaged in the same type of conduct described in paragraph 24(a) above in respect of a 55-year-old man, whose children had pleaded with Mr Tziotzis to open the casket so that they could give a letter to their deceased father; and
(g)the first plaintiff is a callous funeral director, who did a runner from business premises which he shared with another funeral director to avoid paying a $5,200 bill.
(Emphasis added to highlight the sub-paragraphs challenged by the defendants in the current application).
As can be seen from the above extract of the amended statement of claim, while the first broadcast concerned only the complaints made about the funeral of Teresa Moraitis’ daughter, Helen Moraitis, the further broadcast concerned not only those allegations, but allegations made by others: indeed, in the further broadcast, the other allegations consumed more time than the allegations made regarding the treatment of Helen Moraitis by the plaintiffs.
The defendants’ complaints about sub-paragraphs 24(a), (b), (e) and (f) of the amended statement of claim (‘impugned paragraphs’) can be summarised as follows:
(a) the imputation in sub-paragraph 24(a) is bad in form, in that it rolls up separate and distinct defamatory stings which need to be pleaded separately;
(b) the final component of the imputation pleaded in sub-paragraph 24(a), being that Mr Tsiotzis stole the clothing and jewellery provided to put on Helen Moraitis’ body (‘missing clothing and jewellery’) is not capable of being conveyed by the further broadcast; and
(c) in relation to the imputations pleaded at sub-paragraphs 24(b), (e) and (f), the defendants say:
(i) to the extent that these imputations incorporate the imputations in sub-paragraph 24(a), the contention in (a) above applies;
(ii) the words ‘engaged in the same type of conduct as described in sub-paragraph 24(a) above’ are vague, imprecise and embarrassing. The conduct which was the focus of the further broadcast was different than the conduct which was the focus of the first broadcast, such that the further broadcast did not convey like allegations on the part of the participants in the further broadcast; and
(iii) insofar as the imputation in effect repeats what is said in sub-paragraph 24(a) regarding the alleged theft of the missing clothing and jewellery, the contention in (b) above applies similarly to these sub-paragraphs.
Evidence is generally not admissible in an application under r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). However, given the nature of the application, I have reviewed the transcripts of the first broadcast and the further broadcast, and have viewed the further broadcast. A detailed description of the further broadcast follows.
The further broadcast
The further broadcast is approximately seven and a half minutes in duration, and was introduced by an ACA presenter in the studio as follows:
For these families it was an act of betrayal. The funeral director exposed by us for not respecting the wishes of loved ones when it came to saying goodbye. Tonight, he faces more serious questions about his business practices, as distraught mums beg for answers.
The further broadcast then shows the ACA reporter (the fourth defendant) approaching Mr Tziotzis outside a supermarket and a hardware store and being rebuffed by Mr Tziotzis, followed by vision of the main participant in the further broadcast, Ms Kristen McMahon, visiting the grave of her deceased son.
The further broadcast then shows Ms McMahon in the studio, visibly distressed, saying, among other things ‘there was no reason for the casket to be locked’, interspersed with footage of the ACA reporter following Mr Tziotzis in a carpark, saying, ‘His mum is considering exhuming his body, what's she gonna find? Peter?’.
The further broadcast then shows Ms McMahon saying:
We’re not meant to bury our children, that's even harder, but to know that we didn't get to say goodbye to him, it’s painful.
Then follows the narrator saying, alongside a photograph of Teresa Moraitis’ daughter: ‘And hauntingly similar to what happened to Helen Moraitis’. The narrator then said, alongside footage from the first broadcast, including footage of Mr Tziotzis covering the ACA camera with his hand:
Melbourne undertaker, Peter Tziotzis, refused to open her casket at the funeral, so three months later, Helen’s 82-year-old mum, Teresa, had her daughter’s remains removed.
The further broadcast then showed footage of Helen Moraitis’ coffin being loaded into a vehicle, footage of her elderly mother crying, and close up footage of gold jewellery. The narrator said:
Instead of being dressed and prepared for burial, Helen was in a body bag, her clothes and thousands of dollars of jewellery missing.
Alongside footage of Mr Tziotzis being arrested, the narrator said:
Peter was arrested and interviewed over the items found by the police but he was released without charge.
The further broadcast then returned to the ACA reporter following Mr Tziotzis outside a supermarket, saying:
Her body was dumped in a body bag and turfed in this coffin like it was a piece of garbage.
with Mr Tziotzis turning away from the reporter, saying ‘come on guys,’ followed by a voiceover from Ms McMahon saying:
Everything that she was saying just seemed to be exactly the same as what we'd gone through.
The further broadcast then returned to Ms McMahon being interviewed by the ACA reporter in the studio. In response to the question ‘What’s your worst fear?’, Ms McMahon said:
Pretty much what's happened with the other lady. And he's been buried just in the body bag that he was collected in.
After a little time discussing the practice of open casket funerals, the ACA reporter then went on to say as follows:
Kristen isn’t the only one who believes things weren’t right at their loved ones’ funerals. We’ve been contacted by several families with similar stories. All involve undertaker Peter Tziotzis.
Reference was then made to two other instances where it was said that Mr Tziotzis had failed to provide open casket funerals, Mr Tziotzis defending himself in the Greek language press (including a still of a prominent headline ‘denies stealing jewellery’), and Mr Tziotzis’ refusal to participate in an interview with ACA or answer written questions sent to him by ACA.
The further broadcast then returned to the ACA reporter approaching Mr Tziotzis in a car park asking questions, including the following:
Peter, we’ve been trying to organise an interview with you, you haven’t responded to our request for an interview. Can you tell me about Andrew Avraam’s funeral? His mum is considering exhuming his body. What’s she going to find? Peter? What's she going to find?
The further broadcast then showed Mr Tziotzis being taken into his office by detectives, with the following voiceover:
It’s not just the dead Peter Tziotzis is accused of betraying. Allegedly pocketing a large sum of money from a past employer.
In another case, this funeral director claims Peter did a runner with an unpaid bill. He doesn’t want to be identified.
followed by the ACA reporter approaching Mr Tziotzis in a car park, asking him ‘Can you tell me about the money that you took?’.
The narrator then went on to say: ‘Peter’s troubles stretch back to 2006 when he went bankrupt owing a huge debt’ with a graphic showing bankruptcy forms and $91,043 in bold red text.
The further broadcast then went on to show the ACA reporter walking through a cemetery, saying as follows:
Many people we’ve spoken to for this story are too afraid to appear on camera, fearing retribution. Among them an elderly Greek couple who gave Peter Tziotzis $7000 dollars two years ago for their prepaid funerals. That money is supposed to go into a funeral trust. But the husband and wife say they never got confirmation where the cash went.
The further broadcast then went on to show the ACA reporter trying to enter Mr Tziotzis’ office, and being met with abusive language from inside and a descending roller door. The ACA reporter said:
Peter the money that the family gave to you, where is that money? Peter? Where is that money?
The further broadcast then returned to the cemetery, with the narrator saying as follows:
After we spoke with the elderly couple, a Greek Orthodox priest got involved and Peter turned up on their doorstep with the missing money.
The further broadcast then returned to Ms McMahon in the studio and at her son’s grave speaking about her concerns and complaints, and the ACA reporter referred to information provided by the Coroner’s office regarding alleged delays between the Coroner releasing bodies and them being collected by Mr Tziotzis for burial.
The further broadcast then showed footage of Mr Tziotzis talking inside his car, displaying some agitation, followed by a full screen display of the Victoria Police logo, with the narrator saying:
While no charges have been laid following our first story, Victoria Police told us: “The investigation remains ongoing.”
The further broadcast then returned to Ms McMahon at her son’s grave, with the narrator saying:
Andrew’s family is now considering exhuming his remains.
Ms McMahon then responded:
I really want to. To know that he’s been put to rest properly.
The further broadcast conducted by the ACA reporter asking Mr Tziotzis outside his office ‘Peter, are you fit to still be a funeral director?’, and then a repeat of the footage of Mr Tziotzis covering ACA’s camera with his hand.
Submissions
In relation to the complaint summarised in paragraph 12(a) of these reasons, the defendants say that this paragraph impermissibly rolls up four or even five defamatory stings, each of which is different in substance and severity, and each of which would require different evidence to support a justification defence. The separate stings should be pleaded separately, as has been done in paragraph 9 of the amended statement of claim concerning the first broadcast.
The defendants submitted that allowing the pleading of the allegations in paragraph 24(a) in a rolled up form exposes the defendants to the risk of not being able to make out their justification defence if some of the imputations are found to be justified but others are not.
The plaintiffs rejected the defendants’ submission that paragraph 24(a) impermissibly rolls up separate and distinct defamatory stings. The plaintiffs submitted as follows:
The act or condition alleged is that the first plaintiff is a callous funeral director. The imputation then proceeds to describe particulars of why that is so. It reflects the alleged experience of Ms Moraitis in relation to her daughter, Helen Moraitis. It conveys the components of a single characteristic of the first plaintiff, that he is ‘callous’.
The plaintiffs submitted that it is clear that the sting of the imputation pleaded in paragraph 24(a) is that Mr Tziotzis is a callous funeral director, and that the balance of the paragraph provides particulars of that imputation.
In relation to the complaints summarised in paragraph 12(b) of these reasons, the defendants submitted that the further broadcast could not be found to have the capacity to convey the imputation that Mr Tziotzis stole the missing clothing and jewellery, noting that the further broadcast must be considered separately from the first broadcast.
The defendants observed that the further broadcast contained only two fleeting references to the missing clothing and jewellery, neither of which were capable of conveying the imputation that Mr Tziotzis stole the missing clothing and jewellery. The defendants submitted as follows:
The words [spoken in the further broadcast] were not accompanied by details about the circumstances in which clothing and jewellery came to be ‘missing’ such as would give rise to suspicion; there was no commentary about the police investigation and whether it was well-founded; there was no suggestion that charges were likely to be laid and, indeed, the words made clear that the first plaintiff was released without charge; and there was no express reference to ‘theft’ or ‘stealing’.
An ordinary reasonable reader could only arrive at an understanding that the first plaintiff was guilty of stealing clothing and jewellery by the drawing of inferences, one upon the other. The necessary inferences include (at a minimum): that the missing items have been appropriated (as opposed to being simply lost or misplaced); that they have been deliberately appropriated by some person in a manner amounting to stealing; and that the only person who would or could have appropriated the items is the first plaintiff (as opposed to one of his employees or an intermeddler). None of these inferences are grounded in the words and images of the Further Broadcast. They could only be drawn as a result of a strained, overly suspicious, perverse and utterly unreasonable analysis of the Further Broadcast, relying on the viewer’s own beliefs and prejudices. They are also expressly contradicted by the express reference in the Further Broadcast to the fact that the first plaintiff was released without charge.
In oral submissions, the defendants referred to two lines of relevant authority, the first being how the prohibition upon drawing ‘inferences upon inferences’ applies in the cases of publications that refer to the existence of police investigations, and the second concerning transient, and/or allegedly sensationalist publications.
The defendants observed that the further broadcast largely concerned Mr Tziotzis’ breaches of his promises to provide open casket funerals and his alleged financial improprieties, rather than his conduct in relation to the funeral of Helen Moraitis and his subsequent arrest by police. There were only fleeting references to the missing clothing and jewellery and the police investigation into the missing clothing and jewellery in the further broadcast.
The defendants submitted that the words used in the further broadcast might be understood to convey a meaning that Mr Tziotzis is suspected by police in relation to the missing clothing and jewellery, but that the only way a viewer could reach a meaning of guilt was by impermissibly drawing inference upon inference, or, in the words of Lord Devlin in Lewis v Daily Telegraph Ltd,[3] (‘Lewis’) ‘taking two fences instead of one’.[4]
[3][1964] AC 234 (‘Lewis’).
[4]Ibid 286.
The defendants submitted that the current case is analogous with Lewis,[5] where the relevant publication referred to the affairs of the plaintiff and his company being investigated by the fraud squad.
[5]Ibid.
The defendants also referred to the decision of the High Court in Mirror Newspapers v Harrison,[6] where a news article reporting upon an arrest of a person in connection with the bashing of a politician was found not to carry the imputation that the person charged was guilty of the offence charged, on the basis that, among other things, the ordinary reasonable viewer is presumed to know that a person charged with a crime is presumed to be innocent until proven guilty.
[6](1982) 149 CLR 293.
The defendants submitted that, unlike the two examples above, the reference in the further broadcast to Mr Tziotzis not having been charged by the police in relation to the missing clothing and jewellery means that the further broadcast cannot possibly convey any imputation of guilt, without the viewer impermissibly drawing ‘inferences upon inferences’.
The defendants submitted that the plaintiffs’ reliance upon the decision of the High Court in Favell v Queensland Newspapers Pty Ltd[7] (‘Favell’) is misplaced. That decision is authority for the proposition that a publication reporting the existence of a police investigation may rise to a level of imputing guilt if it is accompanied by an account of suspicious circumstances which point to the likelihood of guilt. The defendants submitted that the further broadcast was of quite a different character than the article considered by the High Court, which was found to have invited the reader to draw a link between a suspicious house fire and a controversial development application for the site of the fire. In the current case, the further broadcast only reported the bare facts about the subject matter of the investigation, and included the disclaimer to the effect that Mr Tziotzis was released by police without charge.
[7](2005) 221 ALR 186 (‘Favell’).
In response to the plaintiffs’ contention that the pleaded imputation should be left to the jury because the further broadcast is a transient publication, the defendants submitted, in summary, as follows:
(a) the statements to that effect in Amalgamated Television Services Pty Ltd v Marsden[8] (‘Marsden’) do not establish a rule which necessitates a particular outcome in every case, particularly given that now nearly 30 years has elapsed since that decision, and consumers of news are now more accustomed to receiving and digesting their news in more transient formats;
[8](1998) 43 NSWLR 158 (‘Marsden’).
(b) this is not a case where there is a lengthy publication where transient qualifications have been littered across it in a way a viewer might miss;
(c) on each occasion the relevant qualifying statement is made immediately after the investigation is referred to;
(d) the references to the investigation were short, succinct, and precise; and
(e) given the serious and sensitive matter of the further broadcast, the further broadcast was not overly sensationalist, and in any event, ‘one cannot resort to labels such as sensational or transient in order to attribute what are ultimately strained or forced meanings to the words of a publication’.
The plaintiffs submitted that the Court should exercise great caution about striking out an imputation on capacity grounds at this stage of the proceeding. Referring to the decision of the High Court in Favell,[9] the plaintiffs submitted that ‘[i]f reasonable minds might differ about whether an imputation is conveyed, then there is a strong, perhaps an insuperable reason for not exercising the discretion to strike out’.[10] The plaintiffs submitted that the case must be very clear to justify preventing a plaintiff from presenting their case to a jury.
[9](2005) 221 ALR 186.
[10]Referring to Favell at [6].
The plaintiffs acknowledge that a mere statement that a person is under investigation or that a person has been charged is not capable of conveying an imputation of guilt. However, referring to the decision in Favell,[11] the plaintiff submitted that ‘…where the words are accompanied by descriptions of suspicious circumstances that point towards a likelihood of guilt, the position may be otherwise.’
[11]Ibid.
The plaintiffs submitted that the further broadcast is ‘replete with descriptions of suspicious circumstances’. The plaintiffs relied upon the following matters to support their contention that the further broadcast went further than making a mere statement that Mr Tziotzis was under investigation:
(a) the further broadcast was transient and sensational, such that the ordinary reasonable viewer may not have devoted the same degree of concentration to each part of the further broadcast, and therefore may not appreciate the significance of the qualifying statements in the further broadcast;
(b) the more sensational a publication is, the less likely that an ordinary reasonable viewer will consider the statements with analytical care; and
(c) the plaintiffs submitted that the further broadcast had the following sensationalising features (omitting transcript references):
(a)the colourful and dramatic language used, such as ‘an act of betrayal’, ‘exposed’, ‘hauntingly similar’, ‘it’s not just the dead [the first plaintiff] is accused of betraying’;
(b) dramatic graphics designed to capture the eye of the viewer;
(c)the use of colloquial and vague language such as ‘did a runner’;
(d) highly emotional guests;
(e)the aggrandisement of witnesses said to be ‘too afraid to speak on camera, fearing retribution’;
(f)the flavour of confrontation and expose garnered by the frequent use of ambush footage accompanied by rhetorical questions, while footage of the plaintiff in muted colours and slow motion is shown.
The plaintiffs submitted that the further broadcast ‘is rife with suspicion and uses a range of terms that in context could be understood to suggest theft’ by Mr Tziotzis.
In that regard, the plaintiffs submitted as follows:
… the narrator states ‘[i]nstead of being dressed and prepared for burial, Helen was in a body bag, her clothes and thousands of dollars of jewellery missing’. The first plaintiff is then described as being arrested and interviewed but being released without charge. The statement that he was released without charge does not cure the suspicion, as subsequent footage shows the first plaintiff being taken into his office by detectives. Moreover, near the conclusion of the story the narrator states ‘[w]hile no charges have been laid following our first story, Victoria Police told us: “The investigation remains ongoing”’. The audience is invited to infer that charges may be laid, and the fact that charges have not been laid is merely a statement of the present state of affairs that may change.
The sensationalist tone of the Further Broadcast is designed to arouse suspicion in the viewer regarding the plaintiffs in a number of respects:
(a)the use of vague but ominous language such as ‘things weren’t right’;
(b)the use of ambush footage, accompanied by rhetorical or provocative questions:
(i)Peter, what sort of person would do this to somebody else’s loved ones?’;
(ii)‘His mum is considering exhuming his body, what’s she gonna find? Peter?’ and repeated;
(iii) ‘Can you tell us about the money that you took?’;
(iv)’Peter the money that the *beep* family gave to you, where is that money? Peter? Where is that money?’;
(v) ‘Peter, are you fit to still be a funeral director?’;
(c)an allegation that many people are ‘too afraid to speak on camera, fearing retribution’; and
(d)the Further Broadcast concludes dramatically with footage of the first plaintiff covering the camera with his hand.
The sting that the first plaintiff stole clothes and jewellery is open and capable of being conveyed and should be left to the jury.
The plaintiffs submitted that when considering whether a publication has the capacity to convey a pleaded defamatory imputation, it is important to have regard to the broad impression conveyed by the words and images, and not to focus upon the meaning of individual words. The plaintiffs submitted that the defendants have ignored the broad impression conveyed by the further broadcast and instead have undertaken an over-analysis of the words used in the further broadcast.
The plaintiffs rejected the defendants’ contention that the decision of the High Court in Favell[12] is not relevant to the current case because the further broadcast contained no account of suspicious circumstances, saying no such requirement can be derived from this decision. Further, this decision makes no reference to any prohibition upon drawing ‘inferences upon inferences’, which must have occurred for the High Court to find that the article in question in that case contained an imputation of guilt.
[12](2005) 221 ALR 186.
In relation to the relevance of the transient nature of the further broadcast, the plaintiffs submitted that while they are not submitting that once there is a transient publication, it follows that imputations of guilt are conveyed, the transient nature of the further broadcast is a factor to be taken into account, as is the sensational nature of the further broadcast. In that regard, the plaintiffs referred to what they said was the ’sensational, derogatory and inflammatory language’ used in the broadcast, including references to:
…’an act of betrayal’, ‘exposed’, ‘hauntingly similar’. It’s not just the dead that Peter Tziotzis is accused of betraying. There’s dramatic graphics, including of the embalmer, which is designed, we say, to capture the eye of the viewed. The use of colloquial and vague language such as ‘did a runner’.
The plaintiffs submitted further, in relation to the allegations regarding financial impropriety:
…the passages concerning payment are not irrelevant to determine whether or not the imputations the subject of this application are conveyed because they add to the derogatory overtone that is throughout the whole broadcast.
As for the complaints summarised in paragraph 12(c) of these reasons, the defendants submitted that the pleading of the imputations in paragraphs 24(b), (e) and (f) is defective for the following reasons:
(a) insofar as those imputations incorporate by reference that part of paragraph 24(a) which asserts that Mr Tziotzis stole the missing clothing and jewellery, the submissions summarised and extracted at paragraphs 39 to 48 of these reasons apply with equal force;
(b) further, the focus of the further broadcast was different than the focus of the first broadcast. While the first broadcast focused upon the various allegations made concerning the treatment of the body of Helen Moraitis, the further broadcast concerns allegations made by three other named and unnamed people with respect to Mr Tziotzis’ conduct in offering to provide an open casket funeral but refusing to open the casket on the day of the funeral. Ms McMahon made no allegations that Mr Tziotzis buried her son in a body bag, turfed her son into his casket, treated her son like a piece of garbage, or stole clothing and jewellery meant to accompany her son’s body;
(c) the allegations that Mr Tziotzis ‘engaged in the same type of conduct as alleged at paragraph 24(a) above’ in relation to particular individuals and/or families are vague, imprecise and embarrassing, in that the allegations do not attribute any defamatory act or condition to Mr Tziotzis in relation to the other subjects of the further broadcast, but rather seek to incorporate some or all of the allegations referred to in sub-paragraph 24(a), such that the defendants cannot understand the case they have to meet at trial; and
(d) to the extent that the imputations in paragraphs 24(b), (e) and (f) incorporate the allegations in paragraph 24(a), they too impermissibly roll up multiple defamatory stings which should be pleaded separately.
The defendants submitted that each of the defamatory stings conveyed by paragraph 24(a) are different, and some are clearly more serious than others. Further, ‘this is not a case where a composite imputation conveyed a single characteristic of [the plaintiff] because each sting within the imputation was of the same genus’: that is, where several matters of a similar nature were referred to as particulars in support of an imputation that someone was, say, a serial liar, or a serial sex pest.
The plaintiffs rejected the defendants’ contention that the subject matter of the further broadcast was limited to Mr Tziotzis refusing to open caskets at funerals, saying that ‘…on the contrary, the order and presentation of the further broadcast invites the audience to understand that [the other subjects of the further broadcast] share the experience described by [Helen Moraitis’ mother]’.
The plaintiffs submitted that the reference to Ms McMahon’s experience with Mr Tziotzis as being ‘hauntingly similar’ to what happened with Helen Moraitis (Teresa Moraitis’ daughter), Ms McMahon’s response to the question ‘what’s your worst fear?’, and the reference to ACA having been contacted by several families with ‘similar stories’ gives rise to the inference that Mr Tziotzis engaged in the same type of conduct as experienced by the family of Helen Moraitis.
Relevant legal principles
There is no dispute between the parties as to the principles governing the question of whether a publication is capable of conveying a pleaded defamatory imputation, only their application. However, it is useful to refer to some of the authorities relevant to the application.
A useful summary of the approach to be taken to applications of the current kind is to be found in the following passage of the decision of the High Court in Trkulja v Google LLC[13] (omitting footnotes).
The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, “[s]ome are unusually suspicious and some are unusually naive”. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs”, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.[14]
[13](2018) 263 CLR 149.
[14]Ibid [31]-[32].
As can be seen from the summary in the preceding section of these reasons, the defendants’ submissions focussed upon a number of authorities where it has been said that mere statements to the effect that someone was under police investigation, or even statements that someone has been charged with an offence, cannot generally support an imputation that someone was guilty of an offence. As stated by Lord Devlin in Lewis v Daily Telegraph Ltd:[15]
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.[16]
[15][1964] AC 234. See also Mirror Newspapers Limited v Harrison (1982) 149 CLR 293.
[16]Ibid 285.
In Rush v Nationwide News Pty Ltd (No 7)[17] Wigney J made a number of observations relevant to the current application, as follows (omitting citations):
… the mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.
… as already adverted to, each alleged defamatory imputation has to be considered in the context of the entire publication. It does not follow, however, that each part of the publication must be given equal significance. A headline, for example, may give the reader a predisposition about what follows and may therefore assume particular importance. Equally, contrary statements in an article will not necessarily or automatically negate the effect of other defamatory statements contained in the article.
… the meaning that an ordinary reasonable reader would attribute to a publication, or the impression that the reader forms, may be influenced by the overall tone or tenor of the article in question. The article may, for example, be tinged with, or even pregnant with, insinuation or suggestion. It may also implicitly invite the reader to adopt a suspicious approach. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:
‘It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong.’[18]
[17][2019] FCA 496. Recently restated by his Honour in Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422, a decision published while judgment in the current applications was reserved.
[18]Ibid [78]-[80].
In Marsden,[19] the New South Wales Court of Appeal discussed the relevance of ‘transience’ and ‘sensationalism’ to the task of determining what imputations a publication is capable of conveying, as follows (omitting citations):
The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.
All of these considerations, and more, apply to matter published in a transient form — and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article, and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material.
The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case.[20]
[19](1998) 43 NSWLR 158.
[20]Ibid 165-166.
I will now turn to the issues in the current application.
Discussion
I agree that the impugned paragraphs should be struck out by reason of defects in their form. However, I reject the defendants’ primary contention that the further broadcast is not capable of conveying that Mr Tziotzis stole the missing clothing and jewellery. My reasons follow.
Paragraph 24(a)
As noted above, complaints are made about both the form and substance of this paragraph. I agree with the defendant’s submissions that the plea impermissibly rolls up separate and distinct defamatory stings, which should be pleaded separately, for the reasons outlined in the defendants’ submissions.
Turning now to the contention that the further broadcast is not capable of conveying the imputation that Mr Tsiotzis stole the missing clothing and jewellery, I accept that there may be a fine line between publications which convey to the ordinary reasonable reader or viewer that a person is guilty of a criminal act, or has merely been charged or investigated in relation to suspected criminal conduct, but that the ordinary reasonable viewer would appreciate the presumption of innocence. However, I also accept that the Court should exercise caution in striking out defamatory imputations on capacity grounds at this stage of the proceeding.
The current case is an example of the distinction between what might be conveyed by the written word and what might be conveyed by an audio-visual publication. If one merely reads the transcript of the further broadcast, I would have little hesitation in acceding to the defendants’ application, particularly given the statements to the effect that no charges have been laid against Mr Tziotzis in relation to the missing clothing and jewellery. However, while I accept that reasonable minds may differ as to whether the imputation is conveyed, when one views the further broadcast in full it seems to me that it would be reasonably open to a jury to conclude that the imputation that Mr Tziotzis stole the missing clothing and the jewellery was conveyed by the further broadcast.
The qualifying statements made in the further broadcast recede into the background when viewed in the context of the further broadcast as a whole, including the footage of the ACA reporter following Mr Tziotzis and shouting questions at him, pictures of Mr Tziotzis evading the reporter’s questions and blocking the camera, pictures of the jewellery said to have been worth ‘thousands of dollars’ and having been ‘found by police’ (presumably at premises associated with Mr Tziotzis), followed not long after by reporting upon Mr Tziotzis’ alleged financial improprieties and past financial difficulties. The impression one is left with by the broadcast is not only that Mr Tziotzis is careless and callous, but that he is dishonest, and is prone to obtaining financial advantages at the expense of others. In my view, it is at least reasonably arguable that an ordinary reasonable viewer would form the view from the further broadcast that Mr Tziotzis is a thief. While reasonable minds may ultimately differ on that question, I accept that the pleaded imputation should be permitted to go to a jury.
In my view, while the inquiry as to what defamatory imputations a publication could be considered to be capable of conveying is necessarily very fact and context dependent, I agree that there are some parallels between the further broadcast and the news article considered by the High Court in Favell.[21] There, the imputation of guilt was said to arise not by reason of a mere reference to the blaze being suspicious, and because reference was made to a police investigation into the cause of the fire, but rather the linkage of the report of the fire with the report of the controversial development application was said to amount to ‘an account of the suspicious circumstances that have aroused the interest of the authorities’.[22]
[21](2005) 221 ALR 186.
[22]Ibid [12].
Here, there is no account of the circumstances giving rise to a reasonable suspicion that the missing clothing and jewellery were stolen by Mr Tziotzis, save perhaps for the reference to the police finding the missing clothing and jewellery (which could only be understood to be a reference to them being found at a location of premises connected with Mr Tziotzis). Further, merely showing Mr Tziotzis evading the ACA reporter and the ACA cameras could not of itself have conveyed an imputation of guilt or theft: I accept that many people accused of unfair or unsavoury business practices do not welcome approaches from the personnel of current affairs programs. Rather, it is the juxtaposition of the statements to the effect that Mr Tziotzis is being investigated in connection with the missing clothing and jewellery (the jewellery said to be worth ‘thousands of dollars’, and, by implication, worth stealing) with the allegations of financial impropriety which could lead the ordinary reasonable viewer to conclude that Mr Tziotzis was the type of person that would steal valuable property, such that he was guilty of stealing the missing clothing and jewellery.
The focus in the further broadcast upon the alleged financial improprieties of Mr Tziotzis is important. Mr Tziotzis was said to have pocketed ‘a large sum of money from a former employer’ (that statement accompanied an image of Mr Tziotzis being taken into his office by detectives), he ‘did a runner with an unpaid bill’, he ‘went bankrupt owing a huge debt’, and misappropriated or mishandled money paid to him by an elderly couple for pre-paid funerals, only repaying the money after the intervention of a Greek Orthodox priest. It is the reference to these financial improprieties that takes the allegations in the further broadcast beyond allegations of carelessness and callousness to dishonesty, and it is in that context that what I accept are rather fleeting and qualified statements regarding the missing clothing and jewellery need to be viewed.
The defendants submitted that the further broadcast could not be characterised as particularly sensationalist, given its subject matter, and, in any event, the observations of the Court in Marsden[23] extracted at paragraph 66 of these reasons should carry less force in the age of social media. However, while I accept that the subject matter of the further broadcast was serious and sensitive, the emotive language used in and the overall presentation of the further broadcast did not invite the viewer to engage in a sober and careful analysis of the statements in the further broadcast, or to have particular regard to the qualifications or disclaimers. In that regard, the remarks of Jagot J in Schiff v Nine Network Australia Pty Ltd (No 2)[24] (‘Schiff’) are apposite to the current case:
A program of this kind may be based on sober and careful journalism, but it is not asking the viewer to take a sober and careful view of the material being presented. It is using numerous techniques – interplays of darkness, shadow, headlight glare, small pools of light, shadowy and silhouetted figures, unfocused images, slow motion, cutting between scenes, subsequent reveals of people’s identities, voiceovers and ominous, portentous, or intriguing music – to create an impression of high drama and international intrigue. The viewer knows without anything being said that we are in the realm of nefarious conduct, the kind of conduct that thrives in darkness and shadows and avoids the light. By all of these techniques (and no doubt more which I cannot identify but contribute to the overall impression of the broadcast) an overall impression of serious wrongdoing is created. The viewer is not being invited to suspend judgment while authorities work their way through a complete investigation. The viewer is being invited to draw conclusions and make judgements condemning the conduct being described.
This overall impression is important because it is the context within which the viewer is hearing the words used in the broadcast. As noted, the viewer is hearing the words while these visual and aural techniques are being deployed. The viewer is not interested in or even aware of the visual and aural techniques. They are part of the overall entertainment package. This means that it would be wrong to parse and analyse the precise words used by reference to the transcript of the broadcast. The ordinary, reasonable viewer would not have a transcript. They would not be listening to each and every word. They would not be analysing each sequence and the jumping between sequences. They would form an overall impression where some parts of the words used would take prominence and others not.
This is why the respondents’ focus on the dry text of the transcript is disconnected from the reality of the broadcast.[25]
[23](1998) 43 NSWLR 158.
[24][2022] FCA 1120 (‘Schiff’).
[25]Ibid [49]-[51].
In the case before her Honour, which also concerned a report upon the subject of an investigation by the authorities (in that case the Australian Taxation Office), Jagot J held that a television broadcast conveyed defamatory imputations of guilt, while an associated article published by a newspaper did not, because in the case of the television broadcast, the tone, film techniques and music ‘ created high drama and intrigue contributing to defamatory meanings’,[26] while the associated article did not ‘due to qualified language of probe and investigation’.[27]
[26]Ibid, Catchwords.
[27]Ibid.
In the current case, while the subject matter of the further broadcast was different, the overall impression conveyed by the further broadcast is not just that Mr Tziotzis is callous in his dealings with grieving families, but that he is a rogue. It is in that context that the disclaimers and qualifications relied upon by the defendants need to be viewed. Indeed, given the overall tenor of the further broadcast, one could forgive the ordinary reasonable viewer, having heard that no charges have been laid against Mr Tziotzis in connection with the missing clothing and jewellery, for asking, rhetorically, ‘why not?’. The emotive language used by the narrator, the ACA reporter, and the other participants in the further broadcast, along with the vivid graphics and regular use of footage of Mr Tziotzis evading the ACA reporter and cameras all contribute to the sense of ‘high drama and intrigue’, which does not invite the viewer to carefully parse the words used in the further broadcast.
As for the defendants’ submission to the effect that the issue of the transience of publications in electronic form is of less significance than it was when Marsden[28] was decided, that may well be the case. However, while that question might be explored further at trial, I could not assume that the demographics, characteristics and media consumption habits of ACA viewers are substantially similar to those of followers of TikTok and X. In any event, in Schiff,[29] which was decided less than two years ago, her Honour made reference to the passage of Marsden[30] extracted at paragraph 66 of these reasons, as did Wigney J in Edwards v Nine Network Australia Pty Limited[31] in only the past week in support of the proposition that ‘the sounds, images, manner of speech and any captions in the broadcast are all relevant in determining the meanings carried [by a television broadcast]’.[32]
[28](1998) 43 NSWLR 158.
[29][2022] FCA 1120.
[30](1998) 43 NSWLR 158.
[31][2024] FCA 422.
[32]Ibid [50].
For completeness, notwithstanding my observations above, I should add that I do not, and do not need to, finally conclude that the further broadcast conveys the defamatory imputation that Mr Tziotzis stole the missing jewellery and clothing. That is a matter for trial, and no doubt the defendants will mount the same arguments that they did before me in that regard. However, it seems to me that what imputations are conveyed by the further broadcast, including the question of whether the ‘antidote’ of the qualifying statements overcomes the ‘bane’, is a question upon which reasonable minds could differ, and as such should proceed to trial.
Paragraphs 24(b), (e) and (f)
This aspect of the application can be dealt with quite promptly: I accept the defendants’ submissions that the reference to the ‘same type of conduct’ as in paragraph 24(a) is untenable and embarrassing. Untenable, in that it could not be said that the further broadcast says that Mr Tziotzis stole anyone else’s clothing or jewellery, or treated any else’s body like a piece of garbage, and embarrassing, in that the reference to the ‘same type of conduct’ in that context renders that part of the pleading impermissibly vague.
I request that the parties confer and submit an appropriate form of order to give effect to these reasons, and to make submissions on the question of the costs of the defendants’ application.
SCHEDULE OF PARTIES
| S ECI 2023 04200 | |
| BETWEEN: | |
| PETER TZIOTZIS | First Plaintiff |
| P AND S ORTHODOX FUNERALS PTY LTD (ACN 600 643 141) | Second Plaintiff |
| - v - | |
| NINE ENTERTAINMENT CO PTY LTD (ACN 122 205 065) | First Defendant |
| TCN CHANNEL NINE PTY LTD (ACN 001 549 560) | Second Defendant |
| THE AGE COMPANY PTY LTD (ACN 004 262 702) | Third Defendant |
| SAM CUCCHIARA | Fourth Defendant |
| GEORGIA LINNELL | Fifth Defendant |
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