Cripps v Vakras
[2014] VSC 279
•20 June 2014
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2011 1484
ROBERT RAYMOND CRIPPS & ANOR
Plaintiffs v DEMETRIOS VAKRAS & ANOR Defendants
S CI 2012 4407
DEMETRIOS VAKRAS & ANOR Plaintiffs v ROBERT RAYMOND CRIPPS & ANOR Defendants ---
JUDGE:
KYROU J
WHERE HELD:
Melbourne
DATES OF HEARING:
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 fides — Further damaging publications by defendant — Unjustified maintenance of defences — Failure to remove defamatory material from internet — Relevance of defendant’s motives — Whether amount awarded for aggravated damages should be separately identified — Defamation Act 2005 ss 35, 36.
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APPEARANCES: Counsel Solicitors For Mr Cripps and Redleg Museum Services Pty Ltd Mr C J Dibb
Efron & Associates For Mr Vakras and Ms Raymond Mr D Gilbertson SC with
Ms S PorterMedia Arts Lawyers TABLE OF CONTENTS
INTRODUCTION AND SUMMARY............................................................................................ 1
FACTS WHICH ARE NOT IN DISPUTE..................................................................................... 5
Parties’ backgrounds......................................................................................................................... 5
Negotiations for the hire of the Gallery by the Artists............................................................... 7
The terms of the Hiring Agreement............................................................................................... 9
Events prior to the opening night of the Exhibition on 18 June 2009.................................... 11
The opening night of the Exhibition on 18 June 2009.............................................................. 15
Events between 19 June 2009 and the conclusion of the Exhibition on 5 July 2009............ 15
Correspondence between the parties regarding payment due to the Artists....................... 19
Publication of the Impugned Articles.......................................................................................... 21
Closure of the Gallery and opening of Ruby’s Music Room.................................................. 22
CREDIBILITY OF WITNESSES.................................................................................................... 22
DISPUTED FACTS AND FINDINGS ON THEM.................................................................... 25
Scope of Hiring Agreement and alleged collateral contract regarding catalogue............... 25
Missed meeting of 1 June 2009 and meeting on 5 June 2009................................................... 29
Was the Artists’ artwork accompanied by labels?..................................................................... 33
Meeting on opening night of the Exhibition, 18 June 2009..................................................... 33
Evidence....................................................................................................................................... 33
Findings........................................................................................................................................ 39
Meeting on 24 June 2009................................................................................................................. 46
Evidence....................................................................................................................................... 46
Findings........................................................................................................................................ 52
Did Mr Cripps sexually harass female staff or volunteers?.................................................... 59
Did Mr Cripps mistreat exhibitors?............................................................................................. 61
Is Mr Cripps a racist or an anti-Semite?...................................................................................... 66
CONTRACT PROCEEDING......................................................................................................... 67
Did Redleg breach the Hiring Agreement?................................................................................ 67
Did Mr Cripps induce Redleg to breach the Hiring Agreement?.......................................... 72
Damages for breach of contract..................................................................................................... 73
Orders in the Contract Proceeding............................................................................................... 74
DEFAMATION PROCEEDING................................................................................................... 74
Mr Vakras’ liability to Mr Cripps: First Vakras Article........................................................... 75
Publication................................................................................................................................... 75
Imputations.................................................................................................................................. 80
Legal principles..................................................................................................................... 80
Parties’ submissions and findings...................................................................................... 81
Whether the imputations are defamatory............................................................................... 86
Legal principles..................................................................................................................... 86
Parties’ submissions and findings...................................................................................... 87
Defence of justification at common law................................................................................... 92
Legal principles..................................................................................................................... 92
Parties’ submissions and findings...................................................................................... 92
Defence of justification under the Act...................................................................................... 99
Defence of fair comment at common law................................................................................ 99
Legal principles..................................................................................................................... 99
Parties’ submissions and findings.................................................................................... 102
Defence of honest opinion under the Act.............................................................................. 108
Defence of qualified privilege at common law..................................................................... 110
Legal principles................................................................................................................... 110
Parties’ submissions and findings.................................................................................... 117
Mr Vakras’ liability to Redleg: First Vakras Article............................................................... 123
Publication................................................................................................................................. 123
Imputation and whether it is defamatory............................................................................. 123
Defences of justification at common law and under the Act.............................................. 124
Other defences........................................................................................................................... 126
Mr Vakras’ liability to Mr Cripps: Second Vakras Article.................................................... 127
Publication................................................................................................................................. 127
Imputations................................................................................................................................ 129
Whether the imputations are defamatory............................................................................. 131
Defences of justification at common law and under the Act.............................................. 131
Defence of qualified privilege at common law..................................................................... 133
Ms Raymond’s liability to Mr Cripps: Raymond Article....................................................... 133
Publication................................................................................................................................. 133
Imputations................................................................................................................................ 135
Whether the imputations are defamatory............................................................................. 138
Defence of justification at common law................................................................................. 139
Defence of justification under the Act.................................................................................... 142
Defence of fair comment at common law.............................................................................. 142
Defence of honest opinion under the Act.............................................................................. 144
Defence of qualified privilege at common law..................................................................... 144
Ms Raymond’s liability to Redleg: Raymond Article............................................................. 146
Publication................................................................................................................................. 146
Imputation and whether it is defamatory............................................................................. 146
Defences of justification at common law and under the Act.............................................. 148
Defences of fair comment at common law and honest opinion under the Act............... 149
Defence of qualified privilege at common law..................................................................... 150
Damages — Statutory provisions and common law principles............................................ 150
Principles relating to assessment of damages....................................................................... 151
Grapevine effect........................................................................................................................ 154
Aggravated damages................................................................................................................ 155
Mitigation................................................................................................................................... 156
Statutory cap on damages........................................................................................................ 157
Effect of the cap where there are multiple plaintiffs...................................................... 158
Whether the cap requires scaling of damages................................................................ 161
Effect of the statutory cap on aggravated damages....................................................... 164
Damages — Factual findings....................................................................................................... 165
Further damaging publications and other adverse conduct by Artists............................ 165
Grapevine effect........................................................................................................................ 169
Mitigation: Defamation Plaintiffs’ pre-existing reputation................................................ 171
Mitigation: Provocation............................................................................................................ 178
Damages payable by Mr Vakras to Mr Cripps......................................................................... 179
Damages excluding aggravated damages............................................................................. 179
Aggravated damages................................................................................................................ 188
Damages payable by Ms Raymond to Mr Cripps................................................................... 196
Damages other than aggravated damages............................................................................ 197
Aggravated damages................................................................................................................ 200
Damages payable by the Artists to Redleg............................................................................... 204
Conclusion and proposed orders in the Defamation Proceeding........................................ 205
APPENDIX 1 — First Vakras Article.......................................................................................... 207
APPENDIX 2 — Second Vakras Article..................................................................................... 215
APPENDIX 3 — Raymond Article.............................................................................................. 216
APPENDIX 4 — Extracts from Hyperlinked Article............................................................... 220
APPENDIX 5 — Secular Muse Essay......................................................................................... 222
APPENDIX 6 — List of imputations found by the Court...................................................... 225
APPENDIX 7 — Definitions and abbreviations...................................................................... 227
HIS HONOUR:
INTRODUCTION AND SUMMARY
1 This judgment concerns two separate proceedings that were heard together.[1] The parties are Demetrios Vakras and Lee-Anne Raymond, who are artists and long-term domestic partners (collectively the ‘Artists’), Redleg Museum Services Pty Ltd (‘Redleg’), which operated the Guildford Lane Gallery (‘Gallery’) and Robert Cripps, Redleg’s sole director, company secretary and shareholder.
[1]At the commencement of the hearing, I made an order that the evidence in one proceeding would also be evidence in the other proceeding.
2 In one proceeding (‘Contract Proceeding’), the Artists have sued Redleg and Mr Cripps alleging breaches of a contract for the hiring of the Gallery by the Artists to exhibit their artwork in mid-2009 (‘Exhibition’). The Artists commenced the Contract Proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) on 7 August 2011 (‘VCAT Proceeding’). The VCAT Proceeding was transferred to this Court on 18 May 2012.
3 In the other proceeding (‘Defamation Proceeding’), Mr Cripps and Redleg (collectively the ‘Defamation Plaintiffs’) have sued the Artists alleging that two articles that were published by Mr Vakras on his website, (‘Mr Vakras’ website’), and a third article that was published by Ms Raymond on her website, (‘Ms Raymond’s website’), were defamatory of the Defamation Plaintiffs. The Defamation Proceeding was commenced on 1 April 2011.
4 The first article that is the subject of the Defamation Proceeding was uploaded on Mr Vakras’ website on 21 August 2009 and is headed ‘[E]xhibition in 2009 HUMANIST TRANSHUMANIST: the fiasco of Guildford Lane Gallery of Melbourne the extended version’ (‘First Vakras Article’). This article is accessible via Mr Vakras’ website or directly from the uniform resource locator (‘URL’) subject matter of the First Vakras Article is the Artists’ unhappy experience in relation to the Exhibition. The article, when printed, extends over seven pages[2] and comprises text, photographs, images and ‘screenshots’ of internet items which are presented in framed ‘boxes’. It also contains seven hyperlinks embedded in the text.[3] The First Vakras Article is set out in Appendix 1.[4]
[2]In the form of Exhibit P1.
[3]Where the same hyperlink appears more than once, I have treated it as a single hyperlink.
[4]The parties have agreed that the contents of Appendix 1 are accurate.
6 The First Vakras Article is very critical of Mr Cripps. As can be seen from Appendix 1, the article includes the following:
Guildford Lane Gallery is run by the toxic Robert Cripps. AVOID THIS GALLERY ASSIDUOUSLY! … There are several words with which I can describe Cripps: poisonous, vile, repellent, malignant, racist, liar, bellicose, bully, stupid. Cripps also runs Redleg a transporter of art. Can you trust Cripps’ Redleg? …
Cripps is a self-confessed racist [the new-left Nazis]. He is a manifestation of the new-left who have adopted the sentiments Hitler expressed in his Mein Kampf, but who believe that, though theirs and Hitler’s sentiments are the same, their racism is a ‘justifiable’ one [new-left Nazis].[5]
[5]The words in brackets are hyperlinks.
7 The second article that is the subject of the Defamation Proceeding is the same as the First Vakras Article, save that it contains additional text under a new heading ‘Addendum 2 April 2011’. That addendum was added on 2 April 2011 and I will refer to it as the ‘Second Vakras Article’ or the ‘Addendum’. The Addendum is set out in Appendix 2.[6] As can be seen from Appendix 2, the Addendum includes the following:
[Mr Cripps] has undertaken to claim that what I (and my co-exhibitor) write ‘defames’ him, as if whatever false reputation he might claim to have — which has been arrived at by bullying, badgering, and threatening legal action against others which has resulted in them remaining silent — is his [true] character …
The experience of my co-exhibitor and I with Cripps was not one unique to our exhibition. A year after this disastrous exhibition I received the first of many emails we both received from others who suffered in their dealings with Cripps. To quote a small portion from this email: …
I exhibited a show which is about Human rights … and the gallery owner has done … massive damage to my professional reputation … Robert embarrassed the directors and executives as well … Not only him being unreasonable on everything, he has been sexually harassing staffs and volunteers as well. How do I know? Because he’s been telling it to his staffs every next day like he’s done something awesome. I need to stop this and want to save poor girls who are volunteering for gallery assistant.
[6]The parties have agreed that the contents of Appendix 2 are accurate.
8 I will refer to the First Vakras Article and the Second Vakras Article collectively as the ‘Vakras Articles’.
9 The third article that is the subject of the Defamation Proceeding was uploaded on Ms Raymond’s website on 10 September 2009 and is headed ‘Guildford Lane Gallery’ (‘Raymond Article’). It was subsequently updated on 26 May 2010, 6 June 2010 and 26 September 2010. The article is accessible via Ms Raymond’s website or directly from the URL Raymond Article contains text, a photograph and an image. When printed, it extends to just over two pages.[7] The Raymond Article is set out in Appendix 3.[8] As can be seen from Appendix 3, the article includes the following:
It is time to out Cripps for what he is. If you have had a similar experience with this pariah of a man then let me know and I will post it to this page as a warning to other artists. Say NO to Guildford Lane Gallery under the steerage of Robert Cripps. Say NO to being abused and having your show destroyed and your reputation sullied … By the way this man also runs Red Leg an arts transportation company, in this context I am aware that he is professionally avoided. Others without direct experience with Cripps are well aware of his reputation, he is, as reported to me, ‘universally despised.’
[7]In the form of Exhibit P3.
[8]The parties have agreed that the contents of Appendix 3 are accurate.
11 The three articles (‘Impugned Articles’) remain on the Artists’ websites. However, save for evidence that the Second Vakras Article has been modified, it is unclear whether the three articles are in the same form as that set out in Appendices 1, 2 and 3.
12 The Defamation Plaintiffs have pleaded a number of allegedly defamatory imputations in respect of the Impugned Articles. For convenience, the imputations that I have found are carried by the Impugned Articles are summarised in Appendix 6. That appendix contains a reference to the paragraph of the judgment which contains the relevant finding for each imputation.
13 In relation to the First Vakras Article, the most serious imputation is that Mr Cripps ‘is a racist who holds views that are similar to those of Adolf Hitler’. In relation to the Second Vakras Article, the most serious imputation is that Mr Cripps ‘has sexually harassed volunteers and staff at the Gallery and, unless he is stopped, he will continue to do so’.
14 The Artists deny that the Impugned Articles are defamatory. They dispute some of the imputations upon which the Defamation Plaintiffs rely and have pleaded their own imputations based on the principles in Polly Peck (Holdings) Plc v Trelford.[9] They rely on the defences of justification at common law and under s 25 of the Defamation Act2005 (‘Act’); fair comment at common law; honest opinion under s 31 of the Act; and qualified privilege at common law.[10]
[9][1986] 1 QB 1000 (‘Polly Peck’). See [279] below.
[10]Section 24(1) of the Act provides that the defences set out in the Act are additional to common law defences and exclusions of liability available to a defendant apart from under the Act.
15 It is common ground that Redleg is an ‘excluded corporation’ within the meaning of s 9(2)(b) of the Act and is able to sue the Artists in defamation.
16 For the reasons set out below, I have concluded that:
(a) In the Contract Proceeding Mr Vakras is entitled to damages of $2.83 and the Artists are jointly entitled to damages of $3.15; and
(b) In the Defamation Proceeding:
(i) Mr Vakras is liable to pay to Mr Cripps damages totalling $350,000 (inclusive of $100,000 for aggravated damages) and to Redleg damages totalling $15,000; and
(ii) Ms Raymond is liable to pay to Mr Cripps damages totalling $70,000 (inclusive of $20,000 for aggravated damages) and to Redleg damages totalling $15,000.
17 As this judgment is lengthy and contains many definitions and abbreviations, for convenience, I have set them out in Appendix 7.
FACTS WHICH ARE NOT IN DISPUTE
Parties’ backgrounds
18 Mr Cripps is 67 years of age. He left school in year nine and commenced an apprenticeship in fitting and machining and then toolmaking. He worked in various jobs until he was conscripted to serve in Vietnam in approximately 1966, and served until 1969. He was injured during combat and found his tour of duty very traumatic. After his military service, he worked as a technician in the sculpture department of the Caulfield Institute. Mr Cripps then worked in the architecture department of RMIT where he set up a workshop for model-making and assisted with the manufacture of student projects. He also ran a reprographic business for some time.
19 In the 1980s, Mr Cripps transitioned into arts transportation with some assistance from his brother, who worked at the National Gallery of Victoria. He registered a company called Redleg Group Pty Ltd for the arts transportation business. This was a different company from Redleg, the second plaintiff in the Defamation Proceeding. Mr Cripps gave evidence that he could not remember the precise date of registering Redleg but it was probably in the late 1980s.
20 In 2008, Redleg established the Gallery at 20–24 Guildford Lane Melbourne, having spent approximately $1 million to refurbish the four storey building. Redleg operated the Gallery on a commercial basis and hired out the space to artists, musicians and other persons for a fee. The Gallery hosted its first exhibition in 2008, exhibiting the artwork of the artists Nina Sellars and Stelarc (‘Stelarc exhibition’). Mr Cripps was proud of the Gallery, saying that it had ‘beautiful big spaces’ and that he is ‘very, very good’ at what he does.
21 As at late 2008 and during the course of 2009, the Gallery had the following full-time and part-time staff: Ms Yolande Pickett (exhibitions manager), Ms Lian Low (assistant exhibitions manager), Ms Melanie Trojkovic (installation coordinator), Ms Stacy Jewell and Ms Sarah Webb. The Gallery was assisted by up to 20 volunteers. The volunteers were mainly students who attended the Gallery for around three hours per week to assist with exhibitions. Their tasks included greeting guests, answering questions, assisting the paid staff and attending the Gallery during its opening hours.
22 Mr Vakras was born in Melbourne in 1962. He enrolled in an Arts degree at Melbourne University. It is not clear whether he completed that degree. He has worked in a variety of jobs. He is a part-time, self-taught artist. He is an adherent of the surrealist school. Many of his paintings depict objects which are part human and part machine, with exposed bones and human tissue.
23 Prior to the Exhibition, Mr Vakras exhibited his artwork on approximately 10 occasions.[11] One of these was a solo exhibition. When asked to provide a summary of the artworks he has sold, Mr Vakras responded: ‘It’s going to be very short because it’s not much … I haven’t sold very many works.’ Prior to the Exhibition, he sold the copyright to one of his images for use on an album cover, four or five paintings for between $950 and $1,200, and eight to 10 digital prints.[12] Mr Vakras’ evidence was that at each of his previous exhibitions he sold one or two paintings.
[11]Mr Vakras gave evidence that he was a member of the Contemporary Art Society and Roar Studios and exhibited works through those associations. It is not clear how often this occurred.
[12]These were A4 size prints that sold for $10 each.
24 Ms Raymond was born in Melbourne in 1963. She met Mr Vakras in 1982 or 1983 and they have been in a domestic relationship since then. Ms Raymond is also a part-time artist and an adherent of the surrealist school. Many of her paintings depict naked women, some with exposed buttocks. In recent years, Ms Raymond has worked at Museum Victoria.
25 Prior to the Exhibition, Ms Raymond exhibited her artwork on approximately 10 occasions.[13] Two of these were solo exhibitions. She has sold a total of nine works for prices ranging from $950 to $1,800. Ms Raymond’s evidence was that at her previous exhibitions, she sold one or two paintings. At one exhibition she sold three works. Under cross-examination Ms Raymond agreed that she had not sold all the works in any of her exhibitions, and stated that this is not her ‘primary aim’.
[13]Ms Raymond also gave evidence that she was a member of the Contemporary Art Society and Roar Studios, and participated in group shows. It is not clear how often this occurred.
26 In 2008, the Artists contemplated a joint exhibition of their artwork. They attended the Stelarc exhibition at the Gallery and were impressed by the Gallery space.
Negotiations for the hire of the Gallery by the Artists
27 In August 2008, the Artists completed an ‘Exhibition Proposal’ to exhibit their artwork on the first floor of the Gallery under the project title ‘Human — Transhumanist — An Umbrella and Two Surrealists’. The proposal described the Artists as ‘obscure Surrealists’ and stated that their styles ‘spark controversy’. The proposal was accepted by the Gallery in October 2008.
28 On 11 December 2008, Ms Raymond sent an email to Ms Pickett informing her that the Artists wished to produce a catalogue for the Exhibition and enquiring whether the Gallery used a preferred printer. On the next day, Ms Pickett responded to the effect that the Gallery did not use a printer.
29 On 2 January 2009, Ms Pickett sent an email to Ms Raymond setting out details of the proposed hire of the Gallery by the Artists from 16 June 2009 to 6 July 2009 for a fee of $3,465. The email described the duration of the Exhibition as ’18 June – 5 July 2009’ and the opening as ‘6pm Thursday 18 June’. The email described the ‘space’ as the entire first floor less the ‘Open Studio’ and attached a floor plan of the first floor. The email listed the items covered by the fee. One of the items was the Gallery’s opening hours of 12 noon to 9.00pm Wednesday to Friday and 12 noon to 5.00pm Saturday to Sunday. The items did not include distribution of a catalogue. The email also listed items available at extra cost, including ‘[a]dvertisement design and booking for printed publications’.
30 The Artists met Mr Cripps and Ms Pickett at the Gallery on 23 January 2009 (‘January 2009 Meeting’). The meeting is discussed at [106] to [114] below.
31 Following the meeting, there was an exchange of emails between Ms Pickett and Ms Raymond pursuant to which it was agreed that the proposed hiring of the first floor of the Gallery would also include the Open Studio. An additional fee of $165 per week would be paid, bringing the total fee to $3,960.
32 On 10 February 2009, Ms Pickett sent an email to Ms Raymond attaching an exhibition agreement. That agreement described the ‘Hirer’ as Ms Raymond and the title of the Exhibition as ‘Human — Transhumanist — An Umbrella and Two Surrealists’. Ms Pickett re-sent the agreement on 17 March 2009 with a correction to the spelling of Ms Raymond’s name.
33 It is common ground that Mr Vakras amended the exhibition agreement by adding his name as ‘Hirer’ and by substituting the title ‘Humanist — Transhumanist — An Umbrella and Two Surrealists’. The Artists signed the agreement on 17 March 2009 and emailed a scanned version to Ms Pickett. Some of the formatting changed during the scanning process. It appears that these changes were accidental. Ms Pickett signed the scanned version of the agreement on behalf of the Gallery on 25 May 2009.[14] I will refer to the signed scanned version as the ‘Hiring Agreement’.
[14]Technically, the scanned version signed by the Artists constituted a counter-offer which Ms Pickett accepted by signing it on 25 May 2009.
34 Prior to the signing of the Hiring Agreement by Ms Pickett on 25 May 2009, she sent an email to Ms Raymond on 4 May 2009 in which she stated:
In terms of the publication Demetrios mentioned, unfortunately I do not have enough hours in the day to arrange for appropriate publications to be in stock for each exhibition. So if you wish to make it available I will have to leave that up to you to organise it.
The terms of the Hiring Agreement
35 The parties to the Hiring Agreement were Redleg (which was described as ‘Gallery’)[15] and the Artists (who were each described as ‘Hirer’). The ‘Gallery Space’ which the Gallery agreed to provide for ‘the use’ of the Hirer was described as the first floor of the Gallery and the ‘Hire Term’ was described as ‘from 9am Tuesday 16 June 2009 to 9pm Monday 6 July 2009’.
[15]Although Redleg’s name does not appear in the Hiring Agreement, it was common ground that it was a party to the Hiring Agreement.
36 Clause 2.a of the Hiring Agreement required the Hirer to pay a deposit of $1,980 on or before 16 March 2009 and a further amount of $1,980 on or before 15 May 2009. It is not in dispute that these amounts — which totalled $3,960 — were paid on time.
37 Pursuant to cl 2.b of the Hiring Agreement, the Artists paid a further amount of $500 ‘as a surety’ (‘Bond’). The clause provided that this amount ‘is refundable at the end date of the Hire Term subject to the terms under Clause 9.a. and 9.b. of this Agreement.’
38 Clause 4.c of the Hiring Agreement described one of the Gallery’s responsibilities as follows: ‘ensures that the Hirer has access to the Venue from 8am until 10pm 7 days a week during the Hire Term.’ Although the word ‘Venue’ was not defined, the context indicates that it was used synonymously with ‘Gallery Space’.
39 Clause 5 of the Hiring Agreement set out the Hirer’s responsibilities. It relevantly provided that the Hirer must:
c.clean and tidy the Venue at the end of the term of the hire and use its best efforts to maintain the Venue in the condition it was in at the commencement of the term of the hire, subject to usual wear and tear;
d.allow the Gallery and its employees, agents and licensees all reasonable access to the Venue;
…
h.not attach in any way to walls, doors, glass, lifts, stairwells, floors, furniture, historic features or fittings in or around the Venue any nails, screws, adhesive tape, signs or other item without the prior consent of the Gallery; …
40 Clause 6 of the Hiring Agreement included the following warranties and indemnities:
a.The Hirer warrants that … the event does not contain any defamatory material to the Hirer’s knowledge, and the Hirer indemnifies the Gallery against any and all claims, costs, actions and damages brought or suffered as a result of breach of this warranty.
b.The Hirer warrants that ... the event does not contain any illicit, dangerous, illegal, unethical or seditious material or content to the Hirer’s knowledge under the Hire Agreement, and the Hirer indemnifies the Gallery against any and all claims, costs, actions and damages brought or suffered as a result of breach of this warranty.
41 Clause 9 of the Hiring Agreement was headed ‘Termination’. It relevantly provided:
a.At the end date of the Hire Term the Hirer will be refunded the $500 surety provided that the Gallery Space is returned to its original condition.
b.The Gallery may use some or all of the $500 surety to recover costs incurred by the Hirer if the Hirer:
i. fails to return the Gallery Space to its original condition.
ii.is more than 14 calendar days late in making payment under Clause 2 of this Agreement.
iii.is in breach of any of their obligations under Clause 5 of this Agreement.
…
d.If a party is in breach of any other obligations under this agreement, the other party may give the party at fault written notice of the breach and give 7 calendar days within which to remedy the breach. If the breach remains un-remedied the parties must attempt to resolve the dispute in accordance with Clause 10. If the parties are not able to resolve the dispute, under Clause 10, the non-breaching party may terminate the agreement.
42 Clause 10 of the Hiring Agreement set out a dispute resolution procedure for disagreements under that agreement. The first step in the procedure was for the aggrieved party to ‘tell the other party about the dispute in writing’ and the second step was for the parties to meet within 14 calendar days and ‘take all reasonable steps to try and solve it’. If the dispute was not resolved by direct discussions, the third step was for the parties to submit the dispute to mediation. If the dispute was not resolved at mediation, the next step was arbitration or litigation. Clause 10.e provided that the parties ‘must continue to perform their respective obligations under this agreement even if they disagree.’
43 Clause 11 of the Hiring Agreement included the following ‘General’ provisions:
a.[T]he Gallery is not the Hirer’s Agent and is not entitled to a commission for the sale of the Hirer’s work, nor is the Gallery responsible for the production, sale, administration, marketing or direct agency of the Hirer.
…
c.[T]his Exhibition Agreement is the entire agreement between the parties about its subject matter. Any previous understandings, agreement, representation or warranty relating to this subject matter is replaced by this agreement and has [no] further effect.
…
e.This Agreement may only be changed in writing signed by all parties.
Events prior to the opening night of the Exhibition on 18 June 2009
44 On 29 May 2009, the parties agreed to a media release. The release included the statement that the Exhibition ‘will be an unapologetic display of the surreal, the fantastic and symbolic with accompanying catalogue-manifesto.’
45 At the end of May 2008, Ms Pickett commenced three weeks leave and Ms Low assumed the role of acting exhibitions manager.
46 At 11.46am on 1 June 2009, Ms Raymond sent an email to Ms Low and Ms Trojkovic to inform them that the Artists planned to visit the Gallery ‘by 5-5:30 ish’ that day ‘for a brief look at the space’ and to ‘drop off invitation postcards’. Ms Low responded by email at 2.29pm on the same day, stating: ‘That’s fine! Look forward to meeting you and Demetrios later today. I have let Robert know that you’ll both be here, so he’ll be here to meet you both as well.’
47 The proposed meeting on 1 June 2009 did not take place. The events that occurred between 5.00pm and 6.00pm on that day are in dispute and are discussed at [120] to [128] below.
48 At 6.23pm on 1 June 2009, Ms Raymond sent an email to Ms Low stating: ‘No one was there to meet us so we left, Demetrios was there from about 5:15 and waited until I arrived about 20 mins? Another lady turned up as well expecting to be met.’
49 At 6.37pm on 1 June 2009, Ms Low replied to Ms Raymond by email in which she stated: ‘We were waiting for you, but as the gallery is not officially open today, I was expecting you to call. I’m sorry if this wasn’t clear, but there was a number outside the door as well for you to contact. Please let me know of a better time.’
50 At 10.32pm on 1 June 2009, Ms Raymond sent a further email to Ms Low in which she stated: ‘oh well we seemed to be set with your last message. The lady who was waiting as well called but didn’t get an answer. We will have to try again. Maybe this Wednesday or Thursday with gallery times this should be easier.’
51 At 12.26pm on 2 June 2009, Ms Low responded to Ms Raymond by email in which she proposed a meeting on Wednesday 10 June or Friday 12 June from 12.00pm onwards.
52 The Artists had access to each other’s email accounts. Mr Vakras obviously read Ms Low’s email of 12.26pm on 2 June 2009, as he responded by email 17 minutes later at 12.43pm on 2 June 2009 as follows:
you are a bona fide idiots.
We have already met robert. I don’t care to meet you.
I merely wanted to look at the space to see how we might set up!!
SO WHY WEREN’T YOU THERE YESTERDAY?
I was there at 5:20.
You knew we were coming, AS IT’S IN THE EMAIL. So what’s your explanation?
ANOTHER LADY WAS THERE WHO HAD PHONED UP.
53 At 6.19pm on 3 June 2009, Ms Low sent an email to Mr Vakras stating: ‘Robert and myself were waiting for you at the Gallery until 6.30pm. There was a sign with the Gallery’s phone number clearly positioned at the top of the Gallery door. We did not receive any phone call from you hence we didn’t know you were downstairs.’
54 Mr Vakras responded to Ms Low by email at 7.23pm on 3 June 2009. He copied his email to Ms Jewell, Mr Cripps and Ms Raymond. Mr Vakras’ email was in the following terms:
Lian you are a Liar.
There was no sign above the door, only the sign on the window for an application to permit you to serve alcohol. I do not have a mobile phone. I do not need a mobile phone. The other lady who turned up at around 5:25 did have a mobile phone. She phoned directory assistance to get your number which was not written anywhere outside. She was knocking on the fucking windows! There was no-one & no movement. You are dishonest. Stacy, we don’t care for your floor talk.
55 At 8.51pm on 3 June 2009, Ms Raymond sent an email to Ms Low which included the following statements:
Hello Lian,
I was there too.
Demetrios might seem strong but honestly your story changes with each email. The lady who had arranged to meet you as well had tried calling. None of us saw any telephone number and we all checked we could only see operating hours with a note for ‘by appointment’ and of course the liquor licence notice. If banging on windows didn’t help the lady telephoning didn’t help … (shrug)? What were we all meant to do?? …
A simple apology that wires were crossed would have been appropriate and acceptable …
Hopefully we can still get some sort of working exhibition up.
56 Ms Raymond attended the Gallery on 5 June 2009 and spoke to Mr Cripps about the events of 1 June 2009. The Meeting on 5 June 2009 is discussed at [129] to [131] below.
57 At 6.35pm on 5 June 2009, Mr Vakras sent an email to Ms Low and Mr Cripps, the first lines of which were: ‘Hi Lian and Robert, Lee-Anne just called me. I apologise for our misunderstanding.’ Ms Low responded by email on 8 June 2009, in which she thanked Mr Vakras for his email and stated that she was glad that they had been able to resolve the misunderstanding.
58 On 8 June 2009, Ms Raymond sent an email to Ms Trojkovic in which she stated that the Artists ‘would like to use two small plinths or a small table on which to place “gallery copies” of the illustrated catalogue’. The email stated that this ‘would provide for examples of the book and have information for visitors on how to obtain the catalogue.’ Ms Trojkovic responded on 10 June 2009 stating that there ‘should be no problem about using the plinths’ and that she would check with Mr Cripps to make sure there were enough of them available.
59 On 12 June 2009, Ms Low sent an email to Ms Raymond stating: ‘You are welcome to sell your catalogue on the Opening night, however, we [advise] that you have someone responsible to be handling the sale of the catalogue as the 18th of June will be a very busy night for Gallery personnel.’
60 The Artists installed their artwork in the Gallery on 15 and 16 June 2009 ahead of the opening of the Exhibition at 6.00pm on 18 June 2009. Appendices 1 and 3 contain a photograph depicting some of the artwork as it appeared during the Exhibition. There is a dispute about whether labels were affixed next to each painting. This dispute is discussed at [132] to [133] below.
61 It is not in dispute that some of the paintings were accompanied by essays written by Mr Vakras. According to him, each essay discussed themes depicted in the accompanying painting. The essay accompanying a particular painting was affixed to the wall next to that painting. An essay was affixed next to the painting titled ‘Secular Muse’ (‘Secular Muse Essay’). That essay is set out in Appendix 5. As can be seen from that appendix, the Secular Muse Essay included the following:
This muse is in the middle of a bomb-cratered landscape. The figure attached to mechanical devices is assailed by war. The war is that of religion against a secular society. The religion that assails secular society today is Islam.
There are those who though ignorant of the Koranic basis of this assault condemn critics of that religion as expressing a personal unfounded bigotry, and then claim that acts of terrorism which have been committed in the name of Islam are by militant ‘Islamist’ ‘radicals’. However, these militant acts by practitioners of that faith are not a radical departure of that faith based on a misunderstanding of the Koran.
The opening night of the Exhibition on 18 June 2009
62 The opening of the Exhibition took place from 6.00pm on 18 June 2009, on the first floor of the Gallery. Two other exhibitions had their opening night on the ground floor at the same time. The exhibitions were open to the public and no entry fee was charged.
63 The opening went well. Ms Raymond’s superior at Museum Victoria, Ms Nancy Ladas, bought one of Mr Vakras’ paintings for $450 (‘Sale Proceeds’). The sale was organised by Gallery staff, who received payment on behalf of Mr Vakras. At one stage, Mr Cripps and Ms Ladas were both looking at one of Ms Raymond’s paintings depicting a rear view of a naked woman. Ms Ladas identified herself as Ms Raymond’s superior. Mr Cripps gave evidence that he said to her, ‘Is that your lovely bottom?’
64 A conversation took place between Mr Cripps and the Artists at the Gallery at the conclusion of the opening of the Exhibition. The precise location and content of the conversation, and whether it was witnessed by any other person, are in dispute. The conversation is discussed at [134] to [163] below.
Events between 19 June 2009 and the conclusion of the Exhibition on 5 July 2009
65 On 20 June 2009, the Artists attended the Gallery to view the Exhibition. They did not see Mr Cripps there. After the Artists’ visit, Mr Cripps instructed Mr Colin Reid, a volunteer at the Gallery, to source from the internet and to place at three locations on the first floor of the Gallery a disclaimer relating to the Exhibition (‘Disclaimer’). The Disclaimer contained the following words:
Disclaimer
The management would like to state clearly that the views and opinions expressed in this exhibition are those of the artists, and not in any way representative of the views or opinions of the management, staff or volunteers of Guildford Lane Gallery.
66 Ms Raymond found out about the Disclaimer on 22 June 2009 from a work colleague. The Artists attended the Gallery at 4.15pm on 24 June 2009 for the purpose of photographing the Disclaimer. When they were on the first floor of the Gallery, Mr Cripps approached them and a conversation took place. The content of that conversation, and whether anyone witnessed it, are in dispute. The conversation is discussed at [164] to [195] below.
67 There is also a dispute about whether, in addition to the Disclaimer, there was a ‘Warning’ sign near the landing between the ground floor and the first floor. That issue is discussed at [175] to [179] below.
68 At 7.14pm on 25 June 2009, the Artists sent an email to Mr Cripps which stated the following:
The purpose for exhibiting work is for it to be seen for it to therefore be sold. It is ridiculous that upon our even entering the gallery yesterday, simply to photograph our works, that you shadow us simply to harangue us! Additionally, you can’t order us to ‘get out’ of your gallery: we have paid for the space; our work is exhibited in the space; and we are within our rights to be in the space to promote our work. I am not going to belabour the obvious: it is a space that has been hired for us to use. We are in that space legitimately.
Stop haranguing us, and badgering us, and slandering us because of your own racism. You would be well advised to cease projecting your own racism onto others. Being against Jews, as you state to us you are, is racist. The exhibition includes criticism of 4 religions — and this has nothing to do with race.
You cannot claim to be threatened by Demetrios and be scared of him on the grounds that he does not agree with your myopic world view which is, to reiterate, a consequence of ‘your limited intellect and limited erudition’. And you can not engineer, as it is evident you are engineering, a claim that we have [breached] some condition of exhibiting at the gallery, by claiming we have committed a criminal act because of our ‘racism’, or as it seems, ‘attacked’ you because you claim that being contradicted scares you! We do not want you to talk to us, we did not invite you to badger us with your diatribe. We do not want to deal with you. We do not want to listen to your bellicose belligerent rants. If you have anything to say to us, do it through an intermediary. And stop fabricating the ‘I’m threatened by you’ nonsense, which is contradicted by your shadowing both of us. I am concerned by you because your behaviour is characteristic of a bully unable to have his own way. You are unreasonable to deal with.
We are not confident to even suggest people visit the exhibition because your behaviour suggests to us you are badgering people for merely viewing the art. You obviously do not understand Surrealism nor its aims …
That [you can] bully and badger your employees and volunteers until they simply acquiesce to your belligerence, never makes you right. They are in an unfortunate position, and we feel for them. They are not responsible for your behaviour. The signage is your prerogative, but that does not give you the right to harangue us.
If we come into the gallery it will be during gallery hours to view our exhibition with guests. It is our expectation you will conduct yourself appropriately.
As per the instructions on your ‘responsibilities of the artist’ paper work we will arrive to take down and remove our show at 5pm on the final day, Sunday 5th July. This is what has been agreed to.
69 Mr Cripps responded to the Artists’ email at 12.13pm on 26 June 2009 in the following terms:
Thank you for your communication. I disagree with your statements as per attached email.
At this stage I think it is best that both parties agree to leave the other to their own business and forget trying to resolve the disagreements and misunderstandings. This way you and Demetrios are able to bring people to your exhibition as you wish and we will continue to do our work without further interaction. You can be assured that we will not interrupt you and that [your] guests will feel comfortable in the gallery. We would appreciate it if you could also ensure that myself, gallery staff and volunteers will also not be approached by Demetrios without prior notification, as he has made myself, staff and volunteers feel very uncomfortable.
If you wish to have any further discussion please write to me to prevent heated arguments causing further problems and to keep all communication in writing.
Please also notify me personally when you will be attending the gallery so that I can make sure I am on site, as I am ultimately responsible as the director of the gallery. This is just in case you have any needs that must be met, in which case staff and volunteers do not wish to be involved and you will need to deal with me directly. You may call me on my mobile if need be: [The number is not reproduced]
Thank you in anticipation of a successful interaction.
70 Mr Vakras responded to Mr Cripps’ email at 12.54pm on 26 June 2009. He copied his email to Ms Pickett, Ms Trojkovic, Ms Jewell and Ms Raymond. The email was titled ‘Re: a misrepresentation of our art’ and was in the following terms:
Communicating by writing alone is an excellent idea. However, your claim: ‘We would appreciate it if you could also ensure that myself, gallery staff and volunteers will also not be approached by Demetrios without prior notification, as he has made myself, staff and volunteers feel very uncomfortable.’ IS SLANDEROUS.
I have not had any hostile interactions with anyone at all, other than with yourself. Both Lee-Anne and I have no ill-will to anyone there other than you. And again, as was written in the email which you disagree with, it is you who obviously intimidates the people with whom you are associated. Even if your staff and volunteers disagree with you, they are not in a position to openly disagree with you without having to endure what I have endured from you. Since they are dependant on you for employment or some form of accreditation that will lead to future employment they do not have much of an option but to agree with you.
You are an unprofessional bully and a liar.
71 Mr Vakras supplemented the above email with a further lengthy email which he sent to Mr Cripps and the other recipients at 6.30pm on 26 June 2009. That email was titled ‘Addenda to: a misrepresentation of our art + rebuttal’. The email included the following:
Your problem is with what I have written to accompany my paintings. That is also the reason that you have posted your disclaimer. Whatever else you claim is a concoction.
You summarised your position at the opening, as we were leaving. I was not expecting your reaction. You seem to have taken umbrage to my mentioning that the elderly lady told me that she enjoyed, as she put it, my ‘giving it to the Muslims’. I told her, and repeated to you, my criticism was only ever part of a general criticism of all religion. (All that accompanies the works can be found in the illustrated catalogue.)
The problems followed thenceforth:
1/ you claimed that my writing read like ‘legalese’. To which I responded that were I not to cite and quote to support what I say then it could be claimed I am an opinionated bigot;
2/ you then criticised me because of the ‘delicate’ issue of Palestine. You said you were against the ‘Jew’s state in Palestine’. But as I replied, I don’t mention Palestine;
3/ you told me I could be more subtle and artistic (or poetic?) in how I wrote, because you did not like the way I present my arguments. You proceeded to mention ‘Palestine’ again.
The problem you have is: I cite Koranic passages (such as 9.38-52) which if applied with regards to ‘Palestine’ (which I do not mention) would mean that the murder of Jews by suicide bombers is guided by something other than desperation by an oppressed people. That is your problem. Since this is the case, then it is obvious that an unintended consequence of my writings is that I expose your position on the issue to be without foundation.
Your insistence on mentioning ‘Palestine’ repeatedly elicited my response that ‘Palestinians’ as a people no longer exist …
IF
I had wanted to write about issues regarding the suicide murders of Israelis I would have cited different passages from the Koran: …
Read the Mein Kampf. You will find sentiments identical to yours. The problems in ‘Palestine’ pre-exist the creation of the Jewish state.
…
The … Mufti of Jerusalem … actively called for the extermination of Jews, before a Jewish state existed, and asked for Hitler’s help. SO YOU CANNOT BLAME THE ‘JEW’S STATE’ AS THE CAUSE for problems since the problems pre-existed the Jewish state. Hitler actively conscripted Muslims who killed Jews and Orthodox Christians …
To conclude: I do not mention Palestine. I have not discussed anything, other than mundane issues with your staff/volunteers, for there to be any substance to your claim that I scare them.
I was only fearful of offending 2 people who came to the show. Both told me that they were not offended. The prospective offence was the quoting of the Bible alongside quotes from the Mein Kampf.
72 The Exhibition concluded on 5 July 2009 and the Artists removed their artwork that evening.
73 It is common ground that no damage was caused to the Gallery by the Exhibition.
Correspondence between the parties regarding payment due to the Artists
74 At 2.39pm on 7 July 2009, Ms Raymond sent an email to Ms Pickett regarding payment to the Artists of the Sale Proceeds in the amount of $450 and the refund of the Bond in the amount of $500. Ms Pickett replied later that day stating that the Gallery generally informed exhibitors that refunds and sale payments would be processed within two weeks of the closing date of an exhibition by way of electronic transfer to a nominated account. Ms Raymond provided bank account details by email dated 8 July 2009 and sent follow-up emails to Ms Pickett on 21 and 28 July 2009.
75 On 4 August 2009, Mr Vakras sent an email to Mr Cripps titled ‘Reimburse us the money owed now’. The email included the following:
Reimburse the bond and the payment for the one work that was sold immediately.
That you have yet to do so though, is consistent with the unprofessional conduct you have consistently displayed.
You sabotaged our exhibition. And, you continue to harass us by not paying us monies owed, simply because that is the kind of person you are.
…
We both feel that you owe us for more than merely the bond and the money you have received for the work sold because you prevented our ability to do what we paid for!
All we are claiming however is the before-mentioned funds owed.
You are a bellicose bully and racist & we do not want to deal with you because you refuse to reimburse our funds! You will be reminded that you have not yet reimbursed us every day until you do so.
76 At 10.40am on 6 August 2009, Mr Cripps sent an email to Ms Raymond in which he stated:
I am about to transfer the funds for the … sale of your painting and exhibition bond.
Please confirm that upon receipt of these funds there will be no issues outstanding between yourselves and Guildford Lane Gallery.
We thank you in anticipation of a mutually satisfactory resolution to your exhibition and we sincerely wish you all the best for the future. …
77 In subsequent email exchanges, Ms Raymond asserted that Redleg was obliged under the Hiring Agreement to pay to the Artists the amount of $950 and had no right to request any form of release. However, in two emails dated 10 August 2009, Mr Cripps insisted that Ms Raymond confirm acceptance of the following statement in order for the Artists to be paid the amount of $950:
Upon refund of Lee-Ann[e] Raymond & Demetrios [Vakras] exhibition bond ($[500.00]) & proceeds from the sale of 1 work of art ($450.00) there will be NO outstanding business or legal issues regarding our exhibition at Guildford Lane Gallery.
78 Ms Raymond confirmed acceptance of the above statement in an email dated 11 August 2009.
79 Redleg paid to the Artists the amount of $950 on 13 August 2009.
Publication of the Impugned Articles
80 As stated at [4] and [7] above, the First Vakras Article was uploaded on Mr Vakras’ website on 21 August 2009 — eight days after the Artists received the amount of $950 from Redleg — and the Addendum was added to the First Vakras Article on 2 April 2011. The Raymond Article was uploaded on Ms Raymond’s website on 10 September 2009.[16]
[16]See [9] above.
81 Since the uploading of the Impugned Articles, the Artists have published on the internet additional adverse material on the Defamation Plaintiffs. That material is discussed at [616] to [628] below.
82 The Defamation Plaintiffs have pleaded the following: until May 2011, Mr Vakras’ website and Ms Raymond’s website were hosted by MYOB, which then removed them; the websites were hosted by iiNet between May and July 2011 and by Telstra in October 2011; and since 2 November 2011, the Impugned Articles have been available on the internet via Nearly Free Speech. The Artists have not admitted the above.
83 Ms Raymond gave evidence that her internet service provider was threatened with legal action, and ordered the Artists to remove their websites. The Artists declined to do so, and her whole website was taken down. At some point after this, the Artists’ internet service was cut off and the relevant domain names for the websites were ‘hijacked’.
84 Mr Vakras gave evidence that at around the time they were sued, the Artists’ primary websites were taken down so they created a new website profile called ‘Phantastart’, which mirrored both those websites. The Phantastart mirror sites remain online. Mr Vakras does not currently edit or alter them. A second set of mirror websites was also created at a later time when the first set of mirror sites was itself made unavailable.
85 Mr Vakras modified the Addendum shortly after it was uploaded on Mr Vakras’ website. The nature of the modifications and their timing are discussed at [445] below.
86 The evidence about who has read the Impugned Articles is discussed below in the context of each article.
87 By virtue of s 5(1AAA) of the Limitation of Actions Act 1958, damages are recoverable in the Defamation Proceeding only for publication of the Impugned Articles on or after 1 April 2010, being one year prior to the filing of the writ on 1 April 2011.
Closure of the Gallery and opening of Ruby’s Music Room
88 The Gallery ceased trading in late 2011 or early 2012. In early 2013, Mr Cripps opened Ruby’s Music Room at 132 Little Lonsdale Street Melbourne (‘Ruby’s’). He spent $1.5 million refurbishing that venue.
CREDIBILITY OF WITNESSES
89 Mr Cripps gave evidence and also called four witnesses who had exhibited or given musical performances at the Gallery (Ms Sarah Curro, Mr Nicholas Murray, Ms Elizabeth Paul and Mr Stephen Sedergreen), a friend (Ms Danuta Czarski), an academic who had formerly worked in the art industry in Sydney (Dr Matthew Piscioneri) and a volunteer at the Gallery (Ms Hua (‘Leila’) Li).
90 The Artists gave evidence and also called four exhibitors at the Gallery (Ms Katherine Bowman, Ms Josie Waddelton, Mr Albert Mishriki and Ms Hae Won (‘Courtney’) Kim), a former Registrar of Museum Victoria (Ms Ruth Leveson), a former life model (Mr Gavyn Mickelson) and a former employee of Redleg (Ms Emily Biggs-Kocaj).
91 The conversations between the parties at the meetings held on 18 and 24 June 2009 are of considerable importance in the Defamation Proceeding. Apart from the parties, no witness gave evidence that they saw or heard those conversations. Accordingly, the credibility of the parties is very significant to the resolution of that proceeding.
92 Mr Cripps was an honest but not a very reliable witness due to a faulty memory. His inability to recall dates and other specific details was compounded by the fact that he has been so traumatised by the publication of the Impugned Articles that he has found it difficult to read those articles and any other documentation concerning the two proceedings.
93 Mr Cripps was clearly uncomfortable in the witness box and said: ‘I just want it to be over’ and ‘I just want to get out of here’. At the outset of his evidence in chief, he broke down in tears, necessitating a brief adjournment to enable him to regain his composure. Although he regained his composure, he remained subdued and detached. In cross-examination, he was dejected and apprehensive and he answered questions in a minimalist and almost robotic manner. He seemed to be straining himself to hold back a build-up of emotional pain and to remain calm and in control. However, the tension and the torment were obvious. In short, Mr Cripps came across as a dispirited and crushed individual. The traumatic impact of the Impugned Articles on Mr Cripps is discussed further at [669] to [687] below.
94 I am satisfied that, within the limits of his memory, Mr Cripps endeavoured to give truthful evidence. He did not deliberately make up or omit anything for the purpose of assisting his case. On the contrary, he readily admitted that he could not recall a large number of relevant matters. He also made a number of concessions without any evident hesitation. His answers were not tailored to assist his case.
95 There were occasions during cross-examination when Mr Cripps was confused and could not even recall evidence given earlier in the trial by him or the Artists. There were also occasions when he became non-responsive and engaged in semantics, such as when he refused to acknowledge that he had become angry upon reading Mr Vakras’ emails of 2 and 3 June 2009.
96 Mr Vakras was an unimpressive and unreliable witness. He purported to recall with great confidence precise details of conversations that took place in 2009. Some of the details that he purported to recall were mere reconstructions, were added to embellish his evidence or were simply made up to assist the Artists’ case.
97 Unlike Mr Cripps, Mr Vakras was very comfortable in the witness box and was keen to explain all. Some of his evidence was gratuitous and self-serving. He had a tendency to make long speeches and to give explanations which were not required by the precise question he was asked. Rather, they were designed either to impress or to assist the Artists’ case.
98 Mr Vakras was so keen to ensure that his evidence assisted the Artists’ case that he was prepared to deliberately lie.[17] I have found that he lied about important aspects of the events of 18 and 24 June 2009.
[17]In making this and other very serious adverse findings against Mr Vakras (see, eg, [159], [194], [195] below) I have applied the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, 360–3 (‘Briginshaw’) and s 140(2)(c) of the Evidence Act 2008.
99 Due to my concerns about the veracity of Mr Vakras’ evidence, I have generally rejected that evidence where it was contradicted or not supported by either contemporaneous documents or the evidence of credible independent witnesses, or where the evidence was implausible.
100 Ms Raymond was also an unimpressive and unreliable witness for broadly the same reasons as Mr Vakras. Like Mr Vakras, Ms Raymond deliberately lied[18] about important aspects of the events of 18 and 24 June 2009. Much of her evidence appeared to be rehearsed. However, Ms Raymond tended to be more focused than Mr Vakras in answering the questions asked of her rather than providing unsolicited, self-serving information.
[18]In making this and other very serious adverse findings against Ms Raymond (see, eg, [159], [179], [193], [195] below) I have applied the principles in Briginshaw (1938) 60 CLR 336, 360–3 and s 140(2)(c) of the Evidence Act 2008.
101 All the other witnesses were honest and, with the exception of Ms Emily Biggs-Kocaj, they were broadly reliable, although some of them were partial.
102 The evidence of Ms Biggs-Kocaj that Mr Cripps behaved in an inappropriate sexual manner towards Ms Li and Ms Thao Bui (two volunteers at the Gallery) conflicted with Ms Li’s evidence that Mr Cripps had never behaved inappropriately towards her. Ms Biggs-Kocaj’s evidence was also inconsistent with Ms Bui’s conduct in recently having her wedding reception at Ruby’s. I have preferred Ms Li’s evidence to that of Ms Biggs-Kocaj. The unreliability of Ms Biggs-Kocaj’s evidence in relation to Ms Li and Ms Bui has diminished the weight that I have given to her evidence generally. In particular, I have rejected her evidence that Mr Cripps has behaved in a sexually inappropriate manner towards any staff, volunteers or exhibitors.
103 Ms Katherine Bowman was the most partial witness. It was obvious from her tone of voice and general demeanour that she disliked Mr Cripps and remained very angry with him. Ms Josie Waddelton also appeared to be very angry with Mr Cripps. On the other hand, Dr Matthew Piscioneri was a particularly impressive witness. Although he was called by Mr Cripps, his evidence was very balanced.
104 Ms Pickett and Ms Low did not give evidence. Senior Counsel for the Artists, Mr Gilbertson, did not make any submissions based on Jones v Dunkel.[19]
[19](1959) 101 CLR 298.
DISPUTED FACTS AND FINDINGS ON THEM
Scope of Hiring Agreement and alleged collateral contract regarding catalogue
105 In the Contract Proceeding, there is a dispute about whether it was part of the Hiring Agreement that the Gallery would be responsible for selling, or making available for sale, the catalogue titled ‘Humanist Transhumanist’ that the Artists had prepared for the Exhibition (‘Catalogue’). At the trial, the Artists made an alternative submission that there was a collateral contract pursuant to which the Gallery undertook such a responsibility.
106 It was common ground that the Artists met with Mr Cripps and Ms Pickett for the first time at the January 2009 Meeting.
107 Mr Vakras gave evidence that, at the January 2009 Meeting, both he and Ms Raymond discussed the Catalogue with Mr Cripps and Ms Pickett. Mr Vakras said that the Artists wanted to publish their own catalogue. Ms Pickett responded, ‘OK, you can do your own catalogue but we’ll bring [‘Carnivora’][20] in and we can sell them both in tandem.’ Mr Vakras responded: ‘That would be great but we’re not seeking Carnivora.’ Mr Vakras asked whether Ms Pickett could get the publisher’s details and she said ‘Yes’. Mr Vakras told Ms Pickett that he would email her the following day.
[20]‘Carnivora’ is a publication that includes images of some of Mr Vakras’ artwork.
108 Mr Vakras gave evidence that Mr Cripps asked whether the Catalogue would be similar to one produced for an exhibition at the Orange Gallery. Mr Vakras said it would not be similar, because the Orange Gallery catalogue featured ‘visionary’ and ‘religious’ art which is antithetical to the nature of surrealism. Mr Vakras said the Catalogue would be polemical. Mr Cripps clapped his hands together and seemed excited about the prospect of the Catalogue.
109 Ms Raymond gave evidence that during the January 2009 Meeting, she pointed out that the Artists would be producing a catalogue. Ms Raymond said that the Catalogue would be ‘challenging’, and would contain the Artists’ art manifesto and images of the works in the Exhibition. Mr Cripps enquired whether the Catalogue would be similar to one produced for an exhibition at the Orange Gallery. Ms Raymond explained that it would be different. Mr Vakras said that the manifesto in the Catalogue was intended to be similar to other art manifestos in the surrealist tradition, and would be ‘polemical’ and critical of religion.
110 Ms Raymond also gave evidence that Mr Vakras had brought a copy of Carnivora to the meeting. Mr Vakras showed Carnivora to Mr Cripps and Ms Pickett, and they discussed how to get some larger-scale copies of the pages relevant to Mr Vakras. At this point Ms Pickett said ‘we should get them in and support them alongside your catalogue downstairs.’ When the Artists asked whether she could do this, Ms Pickett responded: ‘Yes, we do that all the time.’ When Mr Vakras offered to arrange the publication of Carnivora, Ms Pickett said ‘no, we do that all the time.’
111 Mr Cripps gave evidence that he could recall that some ‘books’ were shown at the January 2009 Meeting. He described the publication ‘Carnivora’ as a ‘creature type book’ and initially believed the name of the publication began with the letter ‘V’. Mr Cripps could recall very little about the Catalogue from that meeting.
112 Under cross-examination, Mr Cripps denied that there had been a conversation about the Catalogue on 23 January 2009. He accepted that the Orange Gallery was discussed, but denied that this arose out of a discussion of the Catalogue. He denied that either he or Ms Pickett had offered to order in the publication Carnivora on behalf of the Artists.
113 Ms Pickett did not give evidence.
114 The only evidence that might possibly be construed as a promise that Redleg would be responsible for selling the Catalogue is Mr Vakras’ statement that Ms Pickett said ‘we can sell them both’. Ms Raymond’s evidence cannot be construed in that manner. In any event, I reject the Artists’ evidence to the extent that it suggested that Ms Pickett and Mr Cripps agreed that the Gallery would be responsible for selling the Catalogue during the Exhibition. I am satisfied that the Artists said that they would be producing their own catalogue for the Exhibition and asked whether copies could be brought to the Gallery and offered for sale by the Artists and that Mr Cripps agreed. However, at no time did Mr Cripps or Ms Pickett promise that the Gallery would be responsible for selling the Catalogue. I am also satisfied that the Artists left copies of the Catalogue at the Gallery to be available for sale by them.
115 My finding at [114] above is consistent with the parties’ course of dealing. The Artists’ Exhibition Proposal and Ms Raymond’s email of 11 December 2008 to Ms Pickett did not mention the sale of the Catalogue by the Gallery.[21] Neither did Ms Pickett’s emails of 12 December 2008 and 2 January 2009 to Ms Raymond.[22] The email of 2 January 2009 set out the services that the Gallery would provide for a fee of $3,465 and some services that could be purchased for an additional fee. The fact that the parties agreed to add the Open Studio to the hired space for an additional fee[23] demonstrates that it was the Gallery’s practice to charge extra fees for the addition of services to those included in Ms Pickett’s email of 2 January 2009. No agreement was ever reached for the addition of the extra service of sale of the Catalogue by the Gallery.
[21]See [27]–[28] above.
[22]See [28]–[29] above.
[23]See [31] above.
116 My finding at [114] above is also consistent with Ms Pickett’s email of 4 May 2009 to Ms Raymond[24] and Ms Low’s email of 12 June 2009 to Ms Raymond.[25] Those emails stated that the Artists would be responsible for selling the Catalogue. The Artists did not send any email that challenged these statements. My finding is also consistent with the exchange of emails between Ms Raymond and Ms Trojkovic on 8 and 10 June 2009[26] about the Gallery providing plinths to the Artists for use in selling the Catalogue. It is also consistent with the fact that the Catalogue is not mentioned in the Hiring Agreement. Clause 11.c of the Hiring Agreement makes it clear that it sets out the entire agreement between the parties and that any prior discussions which are not reflected in the provisions of the Agreement have no effect. Although Mr Vakras made two corrections to the Hiring Agreement before signing it,[27] he did not add a provision that would require the Gallery to sell the Catalogue.
[24]See [34] above.
[25]See [59] above.
[26]See [58] above.
[27]See [33] above.
117 My finding is also supported by the evidence that Mr Cripps sought permission from the Artists to give a free copy of the Catalogue to Ms Ladas after she bought one of Mr Vakras’ paintings on the opening night of the Exhibition. Ms Raymond gave evidence that:
Mr Cripps came up and said to me that a work had sold and would I like him to handle the transaction and I said yes, please, and he asked, ‘Could I provide the purchaser with a copy of the catalogue or should I charge them’, and I said, ‘No, they can have two if they want’, and he … went off and he did that.
118 There is simply no evidence that the parties discussed or even contemplated that there would be a separate, collateral agreement dealing solely with the sale of the Catalogue. The absence of such evidence makes it impossible to accept the Artists’ alternative submission concerning a collateral contract. In any event, even if discussions about a collateral contract had taken place, the legal requirements for a binding contract, including certainty of terms and mutual consideration, have not been established.
119 In my opinion, the contract between the Artists and Redleg was solely comprised of the Hiring Agreement. I reject the Artists’ contention that the contract was partly in writing, partly oral and partly to be implied.
Missed meeting of 1 June 2009 and meeting on 5 June 2009
120 As stated at [46] above, on Monday 1 June 2009, the parties agreed that the Artists would attend the Gallery after 5.00pm on that day to inspect the first floor space. As the Gallery was normally closed on Mondays, it had been agreed that Ms Low and Mr Cripps would be at the Gallery to meet the Artists. It is common ground that the Artists did not meet Ms Low and Mr Cripps, and did not gain access to the Gallery on that day (‘Missed Meeting’).
121 The Artists gave similar evidence in relation to the Missed Meeting. Their evidence was to the following effect:
(a) Mr Vakras arrived at Guildford Lane at approximately 5.15pm and waited for Ms Raymond to join him. Ms Raymond arrived at approximately 5.20pm.
(b) The Gallery door was shut. The Artists looked through the window and saw there were lights on inside but could not see anyone on the ground floor.
(c) There were three A4 size signs that were stuck on or near the Gallery door. One of the signs set out the Gallery’s opening hours. There was no sign with the Gallery’s telephone number. There was a sign on the window to the left of the main door giving notice of the Gallery’s application for a liquor licence.
(d) A woman arrived who told the Artists that she had an appointment with Mr Cripps. She banged on the Gallery’s windows and door, and called out but there was no response from inside the Gallery. The woman used her mobile phone to telephone directory assistance. She asked for the Gallery’s number and then dialled a number. She said that there was no response.
(e) Ms Raymond used her mobile phone to call the telephone number that she had used to call the Gallery earlier that day and on other previous occasions. The number rang but no one answered the call.
(f) The woman left and then the Artists also left at approximately 5.30pm.
122 Mr Cripps gave evidence to the following effect:
(a) In 2009, his residence was on the second and third floors of the Gallery. He lived and worked at the Gallery and was generally there 18 hours per day.
According to Cripps, my essays were unintelligible, lacked artistic essence (whatever that might mean), and read like legalese. The eyes of his volunteers ("the girls"), he said, "would glaze over" as they tried to comprehend the incomprehensible. In an email received 26 June 2009, Cripps wrote:
"also ensure that myself, gallery staff and volunteers will also not be approached by Demetrios without prior notification, as he has made myself, staff and volunteers feel very uncomfortable"
The above email was Cripps' response to our email in which we wrote to object about his conduct while we had been photographing the exhibition on 25 June 2009. His intimidatory behaviour included him walking to within a few inches of me to tell me that I threaten him, and thrusting his finger to within an inch of me to tell me he was frightened of me, and to tell me that I breeched our contractual agreement because he claimed that my art was racist. (A gallery visitor who was present witnessed these bizarre antics.) Rebuttals by Lee-Anne to Cripps' bizarre rants were met with the retort "you are a sarcastic woman". With regard to the above Cripps email, no discussion about the themes of my art occurred with anyone from the gallery other than with Cripps himself, for anyone other than Cripps to feel "uncomfortable". Cripps' conduct throughout was thoroughly disgraceful.
Since the staff and volunteers at Cripps' Guildford Lane Gallery acquiesce to, and agree with, his hatred of Jews and are in disagreement with me, then it would be a disservice to them if they were to remain unacknowledged and anonymous. Those who I know by name are: Yollande Pickett, Sarah Webb, Melanie Trojkovic, Stacy Jewell, and a Danielle all ethically deficient; they were carbon-copied into emailed correspondences and were aware of the situation.
It is my stance that an action or inaction should never the without consequence.
Like the Nazis before her Yollande Pickett might in the future claim to have been following orders.
ADDENDUM 7 November 2009:
A number of the above mentioned "volunteers" have commenced an email campaign to have their names removed from this page using the threat of legal action. Cripps made numerous misrepresentations of my character, including the charge of racism. He claimed that his actions were undertaken on behalf of his volunteers. His volunteers constituted "evidence". The matters discussed on this page are based on emails, specifically the email with the subject title "a misrepresentation of our art" of 25/6/2009. Trojkovic, Webb, and Jewell, were CCd into these emails. They were also CCd into the email response by Cripps, of the 26/6/2009, in which he made a number of new assertions for which he used as support ('evidence'), his volunteers. Cripps' email is written on behalf of the gallery (which includes the volunteers who he CCd into it). My rebuttal to Cripps et al with the subject "Addenda to: a misrepresentation of our art + rebuttal", was sent on 26/6/2009. The list of volunteers with whom we would be dealing during our exhibition is from an email from Pickett dated 30/5/2009. To my disgust none of the volunteers had the ethical integrity to distance themselves from the assertions made in their name by Cripps. Throughout they remained ethically deficient by their silence, and continue to be ethically deficient. They were unconcerned with any of the claims made on their behalf by Cripps (especially Cripps' email response dated 26/6/2009) as long, as it has become evident, they remained anonymous. If I had any misgivings about including any of them on this page I do not do so now.
(Their absurd shared belief is that permission is required to mention them by name, and that a mention without such permission constitutes "defamation"!)
As the course of events transpired during the course of the exhibition at this odious gallery, I often wished that a page such as this had existed on the internet. I never would have wasted the large amount of time, money, effort, and frustration by exhibiting in it. This page is intended to remedy such an absence.
ADDENDA amendments 11 November 2009:
Only one of the volunteers (whose name has been removed) ever distanced themselves from the representations made on their behalf by Cripps: "Robert Cripps does not speak for me…Any course of action or accusations Robert Cripps made against you on my apparent behalf as a volunteer at the Gallery came without my knowledge or consent."
Of the original list of names that appeared, two were not included in the email exchanges I refer to. The list of volunteers is incomplete; and any names omitted are a consequence of my not knowing them. Of the 3-4 volunteers with whom I exchanged any words at all, some exchanges were limited to merely greeting them with "hi".
If then, Cripps' representations on behalf of his volunteers were not made on behalf of volunteers with whom I did exchange any words (even if this exchange was limited to greeting them), it must be assumed that those he claimed I made, "very uncomfortable" are those with whom I exchanged no words, never saw, and never met. To reiterate, Cripps' disclaimers were written on the behalf of volunteers for reasons explained in (but not limited to) his email. And if I could list them all, I would.
The bona fides of Guildford Lane Gallery
The gallery is listed by NAVA
URL: align="left">Bodies like the National Association for the Visual Arts (NAVA), of which I was once a member, and which is itself funded by the Australian Federal Government, the Australia Council, etc, is intended to support artists and the arts community. However, NAVA lends this disreputable gallery credibility. NAVA is doing artists a disservice.
Other bodies that lend Cripps' gallery credibility are Artabase.
align="center">The Artabase site hosts Cripps' "volunteer program". These listings are misleading!
Do not be misled.
Avoid Guildford Lane Gallery
20-24 Guildford Lane,
Melbourne, Vic. Australia!
[ To read the review of this exhibition by my co-exhibitor, Lee-Anne Raymond ]
[return to exhibitions page]
APPENDIX 2 — Second Vakras Article
ADDENDUM 2 April 2011:
There is a bit of a risk in publishing a page such as this. The website is an electronic publication, a promotional exercise. To write about any exhibition would, with such an understanding, be about representing the exhibition in the best possible light. As such I should be writing of this exhibition being a success, about the number of people who turned up at the opening, referring to all possible positives. To write about an exhibition, and describe it in the way that I have here makes for something that detracts from the intention of the website as a promotional tool for my artwork. For the purposes of promoting my art I would have been better to never mention this exhibition ever, at all.
Cripps has become aware of this page - not that it was ever kept secret. (I suspect that he found out about it as a consequence of his latest on-line dating debacle). He has undertaken to claim that what I (and my co-exhibitor) write "defames" him, as if whatever false reputation he might claim to have – which has been arrived at by bullying, badgering, and threatening legal action against others which has resulted in them remaining silent – is his ture character. Today I received a summons to the Supreme Court of (the Australian state of) Victoria for June of this year (2011). Cripps wants this page removed claiming that what I write is "false" (!). This is not going to happen: to remove what is written, on the claim by Cripps' solicitor that what appears on it is a falsehood makes it a corollary that I agreed to remove it because I agreed it to be false. You have to wonder about the logic of his legal team.
WHAT ARE THE EXPERIENCES OF OTHERS?
The experience of my co-exhibitor and I with Cripps was not one unique to our exhibition.
A year after this disastrous exhibition I received the first of many emails we have both received from others who suffered in their dealings with Cripps.
To quote a small portion from this email:
“Just stumbled upon your website and read the review about Guildford Lange (sic) [Lane] Gallery.
I am a recent exhibiter in GLG and I’m just having the most difficult time in my professional career.
I exhibited a show which is about Human rights… and the gallery owner has done an massive damage to my professional reputation… Robert embarrassed the directors and executives as well… Not only him being unreasonable on everything, he has been sexually harassing staffs and volunteers as well. How do I know? Because he’s been telling it to his staffs every next day like he’s done something awesome.
I need to stop this and want to save poor girls who are volunteering for gallery assistant.”
It was after the receipt of this email that my co-exhibitor Lee-Anne Raymond, (whose page can be found here ) was emboldened to expand on her own description of this disastrous exhibition.
APPENDIX 3 — Raymond Article
Guildford Lane Gallery
"A man's ethical behaviour should be based effectually on sympathy, education, and social ties and needs;
no religious basis is necessary."
Albert Einstein
Last updated 26th September 2010Robert Cripps of Guildford Lane Gallery is at it again, and again, and again
26th September 2010
Another artist reports to me they were humiliated and embarrassed by Cripps's behaviour at their opening and throughout the duration of the exhibition. (What I struggle to understand is how he is still permitted to engage volunteers and operate as the director of a gallery at all.)
This is a pattern of behaviour, artists be warned and beware.
6th June 2010
A life model reported to me how he found Cripps' "...treatment was unbearable." This person had been wrongly paid and dared to question Cripps and was victimised for it.
26th May 2010
An artist reports her reputation and exhibition were "destroyed" by Robert Cripps and his bizarre unchecked antics.
When will any official arts reviewer, so called artists support organisation or arts writer/publisher have the guts to do anything about him? Arts Law must have volumes dedicated to complaints just about Cripps. Like Demetrios Vakras and I you will get nothing but useless mutterings "how awful", well that isn't good enough. In our case a review supporting the show and its purpose or even critiquing it properly would have been the expectation. But no, what we received was much less than nothing, we were left to hang. This will happen to you too.
It is time to out Cripps for what he is. If you have had a similar experience with this pariah of a man then let me know and I'll post it to this page as a warning to other artists. Say NO to Guildford Lane Gallery under the steerage of Robert Cripps. Say NO to being abused and having your show destroyed and your reputation sullied and then receive no support or back up. Say NO more to providing Cripps with the oxygen to continue running this gallery. Say NO to Guildford Lane Gallery and go elsewhere. By the way this man also runs Red Leg an arts transportation company, in this context I am aware that he is professionally avoided. Others without direct experience of Cripps are well aware of his reputation, he is, as reported to me, "universally despised". If this isn't enough read on. If you still think you won't experience this sort of treatment it doesn't matter, he will treat others this way and your support just keeps him in business to do so.
In my own experience...let's see, at my exhibition what did he do that would suggest he is a creep and his motivations suspect? My paintings display nudes, generally, though not always, from the back. He embarrassed me, and the entire concept of the show, by asking women at the opening, "is that your lovely bottom?" What did he do to display he is a bully? He stood an inch from my face and screamed at me in front of visitors to the gallery and gallery volunteers. When I moved back he moved forward. He did the same to Demetrios. He poked aggressively at our chests and shouted his foul abuse and we stood our ground. He was incensed that we wouldn't back down, that we would dare to stand up to him and for our character and our exhibition.
Anyone who works or volunteers for him who doesn't support this account of the kind of person he is, is a coward and an enabler of a bully and a lecher. There were at least 3 volunteers visible and in earshot of the incident I have referred to. Present as well was the paid Gallery Manager who during Cripps' tirade remained his silent lackey, saying and doing nothing of honour. All who were there at the time know you did nothing. How many times has it been that you did nothing? I'm sending out the call to all "his women", this is what he calls you, (he is only interested in young inexperienced women and men too weak to stick up for themselves it seems) to come forward and report his behaviour, equip people with the knowledge to avoid him before they come into his employ or anywhere near paying him money for art space rental.
How many people must he dishonour and ill treat with his shameful antics? People with any notion of self respect simply leave his gallery, but no one ever does anything about it to prevent the next person making the same mistake to 'work' for him. You are meaningless to him and he has no respect for you; he is a narcissist without scruples who stands not for art but for himself and the appeasement of his own appetites. I notice that even more and more associates are included into the Guildford Lane Gallery venue Melbourne Life Drawing and Utopian Slumps to name two. How is this arrangement going for you?
Contact Lee-Anne to post your experience
from personal experience ~ a review of guildford lane galleryGuildford Lane Gallery, level 2, displaying one aspect of the exhibition "Humanist Transhumanist - An Umbrella and Two Surrealists".
If an artist or interested person were to ask me, how did your show go?...what was the gallery like?...did you have a good experience? I would have to say in order; terribly; an impressive space to be avoided at all costs and, no, it was the worst experience and one I could never have imagined. Why?
No more than 5 minutes after the close of our opening night event my co-exhibitor, Demetrios Vakras, and I were subjected to a truly sickening tirade of insult by the Director, Robert Cripps. The basis for his tirade, directed mostly at my co-exhibitor was that Cripps had taken exception to one aspect of religious criticism in the exhibition. In his tirade we were informed without invitation, that he (Cripps) was anti the Jewish State and pro Palestinian. There was no reference to this conflict in the content of exhibition. Nevertheless he demanded it be removed. We left that evening, without resolution to this extremely insulting accusation and with Cripps claiming later to anyone who would listen to his bombast that he was 'attacked' by us. We subsequently returned to the exhibit some days later to photograph the installation. (See the above photograph which is one of the few good ones and one of the few we were able to take) We only managed to take very few shots of the show as during our attempt to document the exhibition Robert Cripps proceeded to shadow us around our rented space declaring once more that Demetrios and the show was racist. He had installed several "disclaimer" notices within the exhibition space (we'd hired the entire 2nd floor) and at the first ramp of the stair way leading up to the space a huge "WARNING" sign was posted.
When a gallery of its own volition does this, it says more about the gallery direction than anything else but damage is also done. It was effective enough to cast a pall over the content and therefore overall reception of the show, which was up for three weeks at the mercy of Cripps' vile interpretations. It was very effective, a complete sabotage, the gallery had all the money it was ever going to get out of us after all and didn't need to support sales of our art or our self produced catalogue in order to make any profit. It is all about the money at Guildford Lane Gallery. If it were about the art, the gallery Director would of course already know that Surrealism is a protestant movement, one born from a fiercely anti establishment, anti-religious, ant-discrimination and anti-violence background. With particular emphasis on anti-violence purportedly performed in the name of religion.
What of the content? This exhibition was well announced to the Director and his staff, well documented in our formerly welcomed application to be a return to Surrealism's roots, an unapologetic announcing of Surrealism's origins and traditional temperament. No saccharine coated pop-version of surrealism by designers. This means religion is critiqued. Cripps though only cared about criticisms of Islam, not Christianity, Hinduism, Zoroastrianism or Judaism. The content, it was claimed, was racist towards Islam alone. The critiques on Islam were backed up by quotation from the Koran with passages extolling violent action and misogyny. Quotations were referenced to emphasise the problems and significant contradictions between the text and claims made about this religion. Quotation from the Bible similarly prominent was undisputed and not a concern for Cripps. The point of logic presented to Cripps that Islam is multi-racial so criticism of the religion cannot be racial was rejected. He further claimed to be threatened by us and that neither could visit the space we hired without prior warning and that Demetrios was just not to come at all. Never mind that as renters we had a clear right to be present during business hours this was all declared by Cripps whilst inches from us in a posture one might find very contradictory to this claim (we couldn't back away he kept moving in). This occurred all in the presence of a visitor to the gallery whom we did not know, she remained although initially hesitated when coming upon the exchange, but then she stayed, read everything and she came to us when Cripps left the space to reassure us that there was nothing to his accusation, she could "see what we were doing" and that the work was "amazing" - she said she'd be back to see it more, I hope she did.
I wonder how many turned around and left the space when coming upon the disclaimers, or how many were treated to a special audience by the director. I can't know this for sure and can only reasonably speculate of course but it stands to reason. To add further insult we had to fight for six weeks post the closure of the show to receive our sale money and bond money owed. It wasn't a large amount, but we were not prepared to let the gallery retain it. It was a further self-discrediting act by this gallery in my opinion. So beware artists, take care to research your gallery selections well, I hope this helps you.
If asked by a prospective artist applicant to the gallery for an assessment I would have to say think twice before being lured by Guildford Lane Gallery's undeniably striking interior, it comes at a significant cost.
Review the account of my co-exhibitor Demetrios Vakras here: http:/ in 2009
APPENDIX 4 — Extracts from Hyperlinked Article
Hitler’s disciples: the new racism of the political Left:
Late 20th and early 21st century Euro-Racism
In an exhibition of my works held during June–July 2009 I was criticised for the sentiments which underlie my works by the owner of the gallery in which my works were being exhibited. According to this gallery owner/director (Robert Cripps, refer exhibition), criticism of Judaism or Christianity, or Zoroastrianism, is acceptable, but any criticism of Islam (by citing the Koran in the same way that I cite Biblical passages to criticise Judaism/Christianity) is, as he claimed, ‘racist’, because if applied to ‘Palestine’, it would mean that the Muslims, and not Jews are responsible for what ails that region.
Nearly 65 years after the end of WW2, and the views of Hitler are rehabilitated.
ADOLF HITLER AND THE 21ST CENTURY LEFT
Hitler’s racist disciples: the political Left
A large number of the ‘conscientious’ Left are (or claim to be) oblivious to what Hitler actually wrote, but denounce him for what they claim is his racism. Nevertheless, this ‘conscientious’ Left have adopted what Hitler wrote in the Mein Kampf, and express these very same sentiments as a demonstration of the sincerity of their good conscience!
Neo-Hitlerianism is a phenomenon of the European political Left. It exists in Australia. It is claimed that this phenomenon is part of a ‘secular’ criticism of Israel. However, the exponents of the new Left are RACIST Christians feigning a secular impartiality. The most prominent of Australia’s Leftist Christian racists is the cartoonist Leunig.
Leunig: case study of an Australian Nazi
Hitler’s disciples of the Left claim a profound concern for the plight of ‘Palestinians’. This is expressed as a racial hatred of Jews, with arguments which are derived directly from the Mein Kampf. …
In the Mein Kampf Hitler writes:
… the Zionists try to make the rest of the world believe that the national consciousness of the Jew finds its satisfaction in the creation of a Palestinian state … [not] for the purpose of living there; all they want is a central organisation for their international world swindle endowed with its own sovereign rights and removed from the intervention of other states …
p. 294, A Reckoning, Main Kampf, (Manheim translation).
Those of the political Left such as Leunig claim that the insidious aims Hitler claimed for the Jews have been fulfilled via the creation of the state of Israel! They, like Hitler, believe that their sentiments are conscientious, and though identical to those of Hitler, they believe somehow that though Hitler was a racist that they are not.
The claim that Hitler’s racism was a rejection of Christian values is one often cited by the pseudo-secular Christian Left. This claim is at odds with what Hitler wrote:
[The Jew’s] life is only for this world, and his spirit is inwardly as alien to true Christianity as his nature two thousand years previous was to the great founder of the new doctrine. Of course, the latter made no secret of his attitude toward the Jewish people, and when necessary he even took to the whip to drive from the temple of the Lord this adversary of all humanity … In return, Christ was nailed to the cross, while our present-day Christians debase themselves to begging for Jewish votes at elections …
p. 278, A Reckoning, Mein Kampf, (Manheim translation)
…
Thus a Christian Hitler writes:
… I believe that I am acting in accordance with the will of the Almighty Creator: by defending myself against the Jew, I am fighting for the work of the Lord.
p. 60, Mein Kampf, (Manheim translation)
APPENDIX 5 — Secular Muse Essay
The evolution of the figure as muse is discussed in an earlier essay.
This muse is in the middle of a bomb-cratered landscape. The figure attached to mechanical devices is assailed by war. The war is that of religion against a secular society. The religion that assails secular society today is Islam.
There are those who though ignorant of the Koranic basis of this assault condemn critics of that religion as expressing a personal unfounded bigotry, and then claim that acts of terrorism which have been committed in the name of Islam are by militant ‘Islamist’ ‘radicals’. However, these militant acts by practitioners of that faith are not a radical departure of that faith based on a misunderstanding of the Koran. According to the Koran life is made attractive by god so that we desire not to die as it is intended by god as a test of our resolve to obey his edicts: only those of strong character will willingly forgo this attractive life to die waging war against unbelievers to demonstrate that they are true Muslims;1 the purpose of life is to wage war;2 the only way to guarantee ascent to heaven is to die while killing unbelievers;3 and, according to the Koran, this makes Islam the ‘House of Peace’ (hence the concomitant claim that Islam is a religion of peace)4 because war occurs only because there are those who are not Muslim against whom war must be waged until these unbelievers are either converted or are forced to pay the poll-tax.5
My painting is a criticism of the secular society which is sacrificing the secular muse.
There are some whom maintain that Koranic-based Islamic law (Sharia) would result in a society not much different from any western society (such as this one) which they believe enforces values which are Christian. Such critics have not read the Bible either. If this society was run on Biblical-based law, I would have been killed as an anti-Christ a long time ago (1 John 2.22, 2 John 7); the Sydney ‘gay’ parade would instead be a day where homosexuals are dragged to a public place to be stoned to death by people who have travelled from the rest of the country to participate (Leviticus 20.13, Leviticus 20.15, 1 Corinthians 6.9–10); people would be stoned to death for working Sundays (Exodus 31.15); and we would not have anyone of an alternate faith among us (Exodus 22.20, Deuteronomy. 30.17-18, Exodus 23.22–24, etc.). (Though some Christians claim that when their god took human form as the Christ he renounced these laws, this is incorrect. It is clearly stated in Matthew 5.17: ‘Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfil them.’)
The greatest difference between Muslims and Christians (today) is that a Christian will, though aware of doctrine, actively go against the instructions of doctrine and renounce it. Not even the so-called ‘moderate’ Muslims renounce any passage of the Koran and even go so far as to deny the existence of such passages. Any Muslim (or someone formerly Muslim) who does openly concede to the existence of such passages such as Ayaan Hirsi Ali and openly renounces them is actively pursued by faithful followers of that religion, as this is considered apostasy and apostasy elicits the death sentence.6
The Koranic passages paraphrased above:
1 ‘If you have suffered defeat, so did the enemy. We alternate these vicissitudes among mankind so that Allah may know the true believers and choose martyrs from among you … that He may test the faithful and annihilate the infidels. Did you suppose that you would enter Paradise before Allah has proved the men who fought for him … ?’ (The Imrans) 3.140–142
‘He created life and death that He might put you to the proof and find out which of you acquitted himself best.’ (Sovereignty) 67.2
2 ‘fighting is obligatory for you, much as you dislike it. But you may hate a thing although it is good for you …’ (The Cow) 2.216
3 ‘Believers, why is it that when it is said to you: ‘March in the cause of Allah,’ you linger slothfully in the land? Are you content with this life in preference to the life to come? Few indeed are the blessings of this life compared to those of the life to come. If you do not fight He will punish you sternly and replace you by other men. Allah has power over all things.’ (Repentance) 9:38 ‘Are you waiting for anything to befall us except victory or martyrdom?’ (Repentance) 9:52.
4 ‘Allah invites you to the House of Peace [Islam]. He guides whom He will to a straight path … As for those that have earned evil [refusal to accept Islam], evil shall be rewarded with evil. Misery will cover them … They are the heirs of Hell.’ (Jonah) 10.26–27
5 Fight against such of those to whom Scriptures were given as believe neither Allah nor the Last Day, who do not forbid what Allah and His apostle have forbidden, and do not embrace the true faith, until they pay tribute out of hand and are utterly subdued.’ (Repentance) 9:29
6 ‘…those who deny Allah after professing Islam and open their bosoms to unbelief shall incur the wrath of Allah and shall be sternly punished. For such men love the life of this world more than the life to come.’ (The Bee) 16.107
The Koranic passages I quote are from the 4 different translations I own: The only two translations worth buying/reading are the one by Dawood (Penguin) and the one by Abdel Haleem (Oxford University Press)
APPENDIX 6 — List of imputations found by the Court
Imputation Text of imputation Para of judgment First Vakras Article Disgraceful Imputation Mr Cripps is a disgraceful individual who is to be avoided assiduously. [282], [289] Duress Imputation Mr Cripps used economic duress to force the Artists to agree to terms that were not in the original contract for rental of space at the Gallery. [290] Profit Imputation Mr Cripps engaged in conduct which inhibited the Artists’ capacity to promote the Exhibition, causing it to fail, but Mr Cripps still made a profit from the Exhibition. [295] Hitler Imputation Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler. [298] Bully Imputation Mr Cripps is a bellicose bully. [299] Redleg Trust Imputation Redleg is operated and owned by Mr Cripps and because he is a disreputable person, Redleg is a disreputable company which is not to be trusted. [424] Second Vakras Article Intimidating Imputation Mr Cripps’ pattern of intimidating behaviour has left other artists reticent to describe publicly their own negative experiences with him. [454] Harassment Imputation Mr Cripps has sexually harassed volunteers and staff at the Gallery and, unless he is stopped, he will continue to do so. [458] Raymond Article Humiliation Imputation As the operator of the Guildford Lane Gallery Mr Cripps has repeatedly engaged in behaviour that humiliates and embarrasses artists who exhibit their works there. [480], [481] Abuse Imputation As the operator of the Guildford Lane Gallery, Mr Cripps has repeatedly engaged in behaviour that bullies and abuses artists who exhibit their works there. [480], [481] Destruction Imputation As the operator of the Guildford Lane Gallery, Mr Cripps has repeatedly engaged in behaviour that destroys the exhibitions of the artists who exhibit their works there. [480], [481] Sullies Imputation As the operator of the Guildford Lane Gallery, Mr Cripps has repeatedly engaged in behaviour that sullies the reputations of the artists he represents. [480], [481] Sabotage Imputation Mr Cripps, a professional gallerist, ceases to support and actively sabotages the exhibitions of artists who exhibit their works at the Gallery once he can no longer make any profit from them. [485] Despised Imputation Mr Cripps, in his arts transportation business, is universally despised. [487], [489] Unfit Imputation Mr Cripps by reason of his ignorance of art, is not a fit and proper person to be a gallerist. [490] Redleg Avoid Imputation Redleg is a disreputable company and should be avoided by artists. [531] APPENDIX 7 — Definitions and abbreviations
Set out below are the definitions and abbreviations that are used in this judgment with selective references to the paragraphs of the judgment where the relevant item is defined or abbreviated.
1958 Act
Wrongs Act 1958 [604]
1985 Act
Accident Compensation Act 1985 [604]
Act
Defamation Act 2005 [14]
Actionable Raymond Imputations
The defamatory imputations carried by the Raymond Article that are set out at [745]
Actionable Vakras Imputations
The defamatory imputations carried by the Vakras Articles that are set out at [667]
Addendum
The additional text added to the First Vakras Article on 2 April 2011. The Addendum is set out in Appendix 2 [7]
Artists
Lee-Anne Raymond and Demetrios Vakras [1]
Bond
Amount of $500 paid by the Artists ‘as a surety’ pursuant to the Hiring Agreement [37]
Catalogue
The catalogue titled ‘Humanist Transhumanist’ that the Artists prepared for the Exhibition [105]
Contract Proceeding
The proceeding in which the Artists have sued Redleg and Mr Cripps alleging breaches of a contract for the hiring of the Gallery by the Artists [2]
Defamation Plaintiffs
Mr Cripps and Redleg [3]
Defamation Proceeding
The proceeding in which the Defamation Plaintiffs have sued the Artists alleging that the Impugned Articles are defamatory of the Defamation Plaintiffs [3]
Disclaimer
A disclaimer relating to the Exhibition and placed at three locations on the first floor of the Gallery [65]
Exhibition
The hiring of the Gallery by the Artists to exhibit their artwork in mid-2009 [2]
First Vakras Article
The article uploaded on Mr Vakras’ website on 21 August 2009 which is headed ‘[E]xhibition in 2009 HUMANIST TRANSHUMANIST: the fiasco of Guildford Lane Gallery of Melbourne the extended version’. The article is set out in Appendix 1 [4]
First Vakras Article Imputations
The imputations carried by the First Vakras Article set out at [300]
Gallery
Guildford Lane Gallery [1]
Hiring Agreement
The signed, scanned version of the exhibition agreement [33]
Hyperlinked Article
The parts of the article titled ‘Hitler’s disciples: the new racism of the political Left’ which are set out in Appendix 4 [296]
Impugned Articles
The First Vakras Article, the Second Vakras Article and the Raymond Article [11]
January 2009 Meeting
Meeting between the Artists, Mr Cripps and Ms Pickett at the Gallery on 23 January 2009 [30]
Literal Interpretation
A literal interpretation of s 35(1) of the Act such that the damages cap applies to the proceeding as a whole irrespective of the number of plaintiffs in that proceeding [591]
Missed Meeting
Missed meeting at the Gallery between the Artists, Mr Cripps and Ms Low on 1 June 2009 [120]
Mr Vakras’ website
The website [3]
Ms Raymond’s website
The website [3]
Polly Peck imputation
An imputation on which the Artists rely which is different from that pleaded by the Defamation Plaintiffs [279]
Raymond Article
The article uploaded on Ms Raymond’s website on 10 September 2009 that is headed ‘Guildford Lane Gallery’. The article is set out in Appendix 3 [9]
Raymond Article Imputations
The imputations carried by the Raymond Article set out at [492]
Redleg
Redleg Museum Services Pty Ltd [1]
Redleg v Artists Site
The website [617]
Ruby’s
Ruby’s Music Room [88]
Sale Proceeds
Amount of $450 paid by Ms Nancy Ladas for one Mr Vakras’ paintings [63]
Second Vakras Article
The First Vakras Article with the addition of the Addendum, which was uploaded on Mr Vakras’ website on 2 April 2011. The Addendum is set out in Appendix 2 [7]
Second Vakras Article Imputations
The imputations carried by the Second Vakras Article set out at [459]
Secular Muse Essay
An essay affixed next to Mr Vakras’ painting in the Exhibition titled ‘Secular Muse’ [61]
Stelarc exhibition
The Gallery’s first exhibition, exhibiting the artwork of the artists Nina Sellars and Stelarc [20]
TED
Touring Exhibitions Design [649]
URL
Uniform resource locator [4]
Vakras Articles
The First Vakras Article and the Second Vakras Article [8]
VCAT
Victorian Civil and Administrative Tribunal [2]
VCAT Proceeding
The proceeding commenced by the Artists in VCAT on 7 August 2011 which was transferred to this Court on 18 May 2012 [2]
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