17–21 and 24–6 March 2014. Written submissions received on 4 April 2014.
DATE OF JUDGMENT:
20 June 2014
CASE MAY BE CITED AS:
Cripps v Vakras
MEDIUM NEUTRAL CITATION:
[2014] VSC 279
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CONTRACT — Hire of art gallery — Whether implied duty of good faith or cooperation — Whether placing conditions on hirers’ access to gallery constituted breach — Whether collateral contract for sale of catalogue by gallery — Whether display of disclaimer in gallery constituted breach — Late payment of bond and sale proceeds constituted breach — Whether a director whose actions constitute a breach of contract can be liable for the tort of inducing breach of contract — Damages for late payment.
DEFAMATION — Internet — Personal websites — Three articles concerning hire of art gallery — Defamatory imputations — Application of the ‘Polly Peck’ principle — Whether hyperlinked article relevant to assessment of imputations carried by matter complained of.
DEFAMATION — Publication on internet — Judicial notice of use of search engines such as Google and Bing to increase instances of publication.
DEFAMATION — Common law defence of justification — Elements of defence.
DEFAMATION — Common law defence of fair comment — Elements of defence — Whether management of a gallery open to the public is a matter of public interest — Whether opinion must be one that an honest person might reasonably form — Whether defendant must provide particulars of facts on which comment is based — Test of malice.
DEFAMATION — Common law defence of qualified privilege — Elements of defence — Test of common duty or interest — Whether defence available where defamatory material published on generalist website as distinct from specialist website — Whether defence available for defamatory statements concerning management of art gallery open to public — Whether defence available for statements on internet in reply to verbal attack in the presence of attendees at art gallery — Test of malice.
DEFAMATION — Statutory defences of justification and honest opinion — Defamation Act 2005 ss 25, 31.
DEFAMATION — Damages — Common law principles — Application of ‘eggshell skull’ principle — Grapevine effect — Mitigation of damages for prior bad reputation of plaintiff — Mitigation due to provocation — Recovery by companies.
DEFAMATION — Damages — Statutory cap — Effect of statutory cap where there are multiple plaintiffs — Whether statutory cap requires scaling of damages — Mitigation where multiple publication of similar matter — Defamation Act 2005 ss 35, 38.
DEFAMATION — Damages — Aggravated damages — Whether timing of aggravating conduct affects application of statutory damages cap — Conduct of defendant that is improper, unjustified and lacking in bona…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Cripps v Vakras [2014] VSC 279
Case
[2014] VSC 279
Decision Date
CaseChat Overview and Summary
The case of Cripps v Vakras involved the hire of an art gallery and subsequent defamatory statements made online. The plaintiffs, Cripps, were the hirers of the gallery, and the defendants, Vakras, were the owners and operators of the gallery. The dispute centred on contractual breaches, including conditions placed on the hirers’ access, and defamatory statements published on the gallery's website and elsewhere on the internet. The court was required to determine whether there was an implied duty of good faith or cooperation in the contract, whether certain conditions and disclaimers constituted breaches, and if the defendants could be held liable for defamatory statements made in response to a verbal attack in the presence of gallery attendees. The court also needed to assess the applicability of various defamation defences, the nature and extent of damages for defamation, and the implications of statutory caps on damages.
The court found that there was indeed an implied duty of good faith and cooperation in the contractual relationship between the parties. It held that placing conditions on the hirers' access and displaying a disclaimer in the gallery constituted breaches of contract. The court also found that a director whose actions breached the contract could be liable for the tort of inducing breach of contract. Regarding defamation, the court held that the statements made were defamatory and applied the principles of the 'Polly Peck' case to determine the scope of the defamatory imputations. The court considered the impact of hyperlinks and the use of search engines in assessing the extent of publication. The court further examined the common law defences of justification, fair comment, and qualified privilege, as well as the statutory defences available under the Defamation Act 2005. The court found that the statutory cap on damages required scaling where multiple plaintiffs were involved and that aggravated damages could be awarded for improper and unjustified conduct by the defendants.
The court awarded damages to the plaintiffs for the breaches of contract and defamatory statements. The court applied the 'eggshell skull' principle in assessing damages for defamation, taking into account the 'grapevine effect' and mitigating factors such as the plaintiff's prior reputation and provocation. The court considered the statutory cap on damages and the need for scaling where multiple plaintiffs were involved. The court also awarded aggravated damages for the defendants' improper conduct, including the timing of their actions and the failure to remove defamatory material from the internet. The court emphasised the relevance of the defendants' motives and the need to separately identify the amount awarded for aggravated damages.