Vakras v Cripps
[2016] FCCA 20
•27 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VAKRAS v CRIPPS & ANOR | [2016] FCCA 20 |
| Catchwords: HUMAN RIGHTS – Application for remedies for alleged contravention of the Racial Discrimination Act 1975 – applicant seeking to add claims under the Copyright Act 1968 and the Australian Consumer Law – respondents seeking summarily dismissal of claims and also asserting Anshun estoppel – applicant’s case having no reasonable prospects of success – Anshun estoppel clearly established – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.17A Australian Human Rights Commission Act 1986, s.46PO(3) |
| Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Paramasivam v Grant [2001] FCA 882 Perez v Fernandez [2012] FMCA 2 Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 Rana v Deakin University [2012] FMCA 575 Blair v Curran (1939) 62 CLR 464 Gibbs v Kinna [1999] 2 VR 19 |
| Applicant: | DEMETRIOS VAKRAS |
| First Respondent: | ROBERT RAYMOND CRIPPS |
| Second Respondent: | REDLEG MUSEUM SERVICES PTY LTD (ACN 105 986 829) |
| File Number: | MLG 2122 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 9 September 2015 |
| Date of Last Submission: | 10 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 27 January 2016 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr B. Low |
| Solicitors for the Respondents: | Efron & Associates |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2122 of 2014
| DEMETRIOS VAKRAS |
Applicant
And
| ROBERT RAYMOND CRIPPS |
First Respondent
| REDLEG MUSEUM SERVICES PTY LTD (ACN 105 986 829) |
Second Respondent
REASONS FOR JUDGMENT
Introductory
In this matter, the respondents seek the summary dismissal of the applicant's case. Although the submissions put by the respondents were not put with any great clarity or precision, in substance what the respondents seek is that the Court dismiss the application, either pursuant to the Court's powers under s.17A of the Federal Circuit Court of Australia Act 1999 or, alternatively, under the doctrine of Anshun estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
Although the parties have ventilated a number of other matters, with which I shall attempt to deal, and although my own thinking is not as clear as I would wish, I have at least come to the firm view that the application should be dismissed for reasons which I will endeavour to set out as follows.
The Materials Filed in the Proceeding
Because of difficulties arising out of the way in which the parties have presented their case, it was not at first apparent that the various antecedent requirements arising out of s.46PO of the Australian Human Rights Commission Act 1986 (“HRC Act”) and this Court's Rules (“the Federal Circuit Court Rules 2001”) had been complied with, but I am now satisfied that they were (subject only to waiving compliance with r.41.03, done by consent on 10 December 2015). It should be noted, of course, that pursuant to s.46PO(3), the applicant is confined, as to the unlawful discrimination capable of being alleged in the application, to substantially the same matters as in the complaint terminated by the Human Rights Commission (“HRC”).
The HRC Complaint
The Application was first commenced by Mr Vakras' Application filed on 21 October 2014. This followed a Notice of Termination, issued by a delegate of the President of the HRC, dated 25 August 2014, terminating the application under s.46PH of the HRC Act. A copy of what appears to be the complaint on the Court's file shows that Mr Vakras was the applicant, and that the respondent was Robert Cripps. The relationship between the parties was described as "provider of goods and services/art gallery owner of gallery for hire".
In response to the question on the Application to the HRC, "Do you want to add another respondent", the answer was "no". The Application went on to assert that Mr Vakras had been discriminated against because of his race or ethnic national origin which was Greek. The events alleged occurred in June 2009. The delay in bringing the Application, which it should be noted was submitted on 10 June 2014, was explained as follows:
“The discriminatory actions were claimed to have been done for a completely different reason in 2009. Recently (March 2014)
I was told that the discriminatory actions were actually due to my racial/cultural origins.”
The HRC complaint goes on to detail matters arising from an art exhibition in a gallery of which Mr Cripps was the director in 2009, and the placing of disclaimers by Mr Cripps throughout the exhibition space. The application continues relevantly:
“Recently the explanation for his placement of disclaimers was on the following accusation made against me; that there were some parts of the exhibition that included words in Greek.”
It should be noted that the remainder of the complaint is by no means altogether easy to understand but it does seem that the discrimination is alleged to have occurred on the basis of Mr Vakras' Greek origins and ethnicity.
The Application to the Court
The Application filed with the Court, to which I have already referred, asserts discrimination in the provision of goods and services in June 2009. It refers to the exhibition in the art gallery owned by Mr Cripps and placing disclaimers/disendorsements throughout the exhibition space.
The application continues to assert relevantly:
“At that time (June 2009) Cripps' PRETEXT for posting these disclaimers bore no rational relationship to the art or essays: Cripps' 2009 claim was that criticism of religious doctrines and religious values (of Judaism, Christianity, Islam and Zoroastrianism) which was the subject of some of my work could be supportive of Israel, could be anti-Palestinian, and that this was therefore racist. Neither Israel nor Palestine are mentioned, referenced, or alluded to, and the subjects of Israel and/or Palestine had nothing to do with anything written or exhibited for this claim to have any basis.
In March 2014 Cripps admitted he did these acts because my art manifested my being Greek. This Greekness took the form of my use of Greek words to explain Greek myths in which the Greek words used were an intrinsic part of the piece(s).
In March 2014, the explanation given for Cripps' actions was: that I, Greek of race, used Greek words!”
The complaint goes on to deal, in considerable detail, with the Greek words concerned. The complaint details s.9 of the Racial Discrimination Act 1975 (“RD Act”) and refers to the Copyright Act 1968 (“Copyright Act”) and the Copyright Amendment (Moral Rights) Act 2000 Schedule 1 which deals with the moral rights of authors, and the author's right of integrity of authorship. The complaint further asserts that:
“Cripps/his company, Redleg, had a contractual agreement with me in which I was the HIRER of one floor of the building Cripps/Redleg Museum Services owned.”
The respondents filed a Request for Further and Better Particulars of the Application on 22 December 2014 and a Response on 23 December 2014. It is not necessary to spend any time on the Application for Further and Better Particulars. The Response contained, however, in Part C “Grounds of Opposition”. These grounds of opposition refer, inter alia, to an extensive proceeding before Kyrou J in the Supreme Court of Victoria traversing the same exhibition and its sequelae to which the Application in this Court refers.
The submissions make reference to parts of Kyrou J’s judgment and various findings made by his Honour which might give rise to issue estoppels (although that term is not, itself, referred to in the grounds). At paragraph 14, the Response asserts:
“Any attempt to re-litigate matters the subject of specific findings by Kyrou A.J. would constitute an abuse of process and be the subject of a summary dismissal or permanent stay application.”
Generally, the Response asserts that the matters put forward by the applicant are incapable of giving rise to judiciable controversies under either the RD Act or the Copyright Act.
The applicant's Further and Better Particulars are dated 1 February 2015 and, in large part, they take the matter no further, although I note that at paragraph 3, relevantly, the Further and Better Particulars asserted:
“… The application that I have put to the court seeks to remedy unlawful actions under the RACIAL DISCRIMINATION ACT 1975, and the COPYRIGHT ACT 1968 and no other Act.”
Pursuant to Orders made by Registrar Caporale on 28 April 2015, the applicant filed Points of Claim. As with everything the applicant has thus far filed, the document is by no means easy to understand. It is, however, clear that the base facts, if I may use that phrase, relied upon by Mr Vakras arise from the art exhibition to which reference has already been made more than once. It was this exhibition that gave rise to the protracted (eight days of hearing) proceedings before Kyrou J. Although there are a number of references to the Copyright Act, it is not easy, at least for me, to understand exactly what contraventions of the Copyright legislation are asserted. Although not stated in terms, it seems Mr Vakras may be asserting a contravention of s.195AQ of the Copyright Act.
It is, however, clear that it is Mr Vakras' understanding that the way
Mr Cripps ran his case in the Supreme Court suggested that some of the Greek phrases he had used might require translation. That appears to give rise to the assertions that Mr Cripps has now admitted his racist motivation for the events of 2009 (something that is denied by the respondents).
On 1 July 2015, the respondents filed Points of Defence. Inter alia, the Defence asserts, (paragraph 4), that the alleged breaches of copyright are without foundation and were not a complaint before the Australian Human Rights Commission and "therefore are embarrassing to plead".
At paragraph 14 of the Defence, it is asserted:
“Save and except that the First Respondent admits the essays accompanying the Applicant's artwork were difficult to be understood and read like legalese, the First Respondent denies all other allegations contained in paragraph 14. He further says that because the essays accompanying the Applicant's artwork were in convoluted English, and also in Greek and Latin writings, and his concern that the essays could be interpreted as being anti-Palestinian and racist, he requested the Applicant to put the explanation of the artwork in simple English. However, the Applicant refused to do so. As a result of the Applicant's refusal, the First Respondent had no choice but to put up disclaimers, which were not uncommon, to disassociate the Second Respondent from the views and opinions expressed by the Applicant's artwork and essays.”
The Defence also responded to paragraph 34 of the Points of Claim which purported to add a cause of action under the Australian Consumer Law, pleading again that these matters were not part of the complaint to the Australian Human Rights Commission and were, therefore, embarrassing. It was also asserted that Lee-Anne Raymond, who the applicant sought, in his paragraph 34, to add as a complainant was not a complainant to the original complaint lodged with the Australian Human Rights Commission and, therefore, should not be added in this proceeding. Otherwise the Defence adds nothing further, save that it does, of course, consist of non-admissions and various pleading objections.
On 21 July 2014, Mr Cripps filed an Application in a Case seeking the dismissal of the Application dated 21 October 2014 and costs. This was supported by an Affidavit, affirmed 21 July 2015, by Mr Cripps. This Affidavit expressly responded on behalf of both respondents. Relevantly for these purposes, the Affidavit referred to the proceedings before Kyrou J and asserted, correctly enough it seems to me, at paragraph 7 that:
“The central event that relates to the Proceeding was an art exhibition held by the Applicant at the Respondents’ art gallery, Guildford Lane Gallery, in June 2009.”
At paragraph 8 and following, the Affidavit asserts:
“8. During the course of the exhibition, the Applicant's artworks were accompanied by written materials which were in convoluted English language, and also in Greek. I was concerned that the written materials could be interpreted as being anti-Palestinian and racist. An example of such written material was an essay accompanying the Applicant's artwork entitled "Secular Muse" as contained in the Applicant's catalogue for the art exhibition.
Now produced and shown to me and marked with the letters “RRC-1” is a copy of the essay accompanying the Applicant's artwork entitled "Secular Muse".
9. I requested the Applicant to put the explanation of the artwork in simple English but disagreement ensued between us.
10. As a result of the Applicant's reluctance to explain his artwork in simple English after being requested to do so, I had no choice but to put up disclaimers adjacent to the artworks, which was not uncommon, to disassociate myself and my Gallery from the views and opinions expressed by the Applicant's artworks.
Now produced and shown to me and marked with the letters “RRC-2” is a copy of the disclaimer.”
Having traversed the applicant's assertions in his Application to the effect that Mr Cripps had admitted his racist anti-Greek motivation in the Supreme Court proceedings, the Affidavit appends, as “RRC-3”,
a copy of pages 261-262 of the transcript of the proceeding. The Affidavit also appends as “RRC-4” a small extract of the very lengthy judgment of Kyrou J which is said to touch upon the matter. It should be noted that a number of the paragraphs in the Affidavit are argumentative and/or conclusionary in their nature, and are more in the nature of legal submissions than evidence, although the purport is clear. It asserts a lack of proper justiciable controversy in the matter before this Court and seeks the dismissal of the Application.
On 10 August 2015, the applicant filed an Interlocutory Application in which he sought to join Lee-Anne Raymond to the matter as a party, and sought to dismiss the respondents’ Application for strikeout. On the same day, Mr Vakras filed a Reply to the respondent's Application which takes the matter no further, although it does assert that the claims made under the Copyright Act and the Australian Consumer Law (CCA 2010):
“...arose from the same actions by the First Respondent that gave rise to the Human Rights complaint, and all matters properly lie within the Federal Circuit Court's jurisdiction.”
On 10 August 2015, Mr Vakras also filed an Affidavit which annexed some transcript of the Supreme Court trial, and refers to the subsequent appeal from Kyrou J’s decision. Once again, the Affidavit is not easy to understand and is, in large part, argumentative and conclusionary, but it does confirm the kernel of Mr Vakras' complaint, namely, that the conduct of Mr Cripps during the exhibition in 2009 was improperly motivated by his Greek ethnicity.
The Submissions made in Court
Counsel for the Respondents
Counsel submitted that the Applications in this Court are a moving target. The first application was referenced to s.9 and s.13 of the
RD Act, and had one applicant. Now there are claims, pursuant to the RD Act, the Copyright Act and the Consumer Law. Counsel referred to the disclaimers put up by Mr Cripps and the Supreme Court proceedings that had followed. The respondents submitted that the issue of the disclaimers was incapable of grounding an action under the RD Act.
It was submitted that so far as moral rights infringements under Copyright legislation were asserted, this should have been dealt with in the contract case brought by Mr Vakras and Ms Raymond in the Supreme Court and that, therefore, an Anshun estoppel arose. In the alternative, it was submitted there is simply no substance to the moral rights point, and no infraction of the author's rights. There was no Consumer Law claim and, clearly, Anshun estoppel operated in any event.
Counsel referred to the decision of Hely J in Paramasivam v Grant [2001] FCA 882 at [14] and [17] in which his Honour was concerned with a human rights claim which his Honour summarily dismissed. It should be noted that that case pre-dated the introduction of s.31A of the Federal Court Act 1976 (“Federal Court Act”), the equivalent to s.17A of the Federal Circuit Court Act 1999 (“Federal Circuit Court Act”) with which we are here concerned. It was submitted that there was simply no evidence to support the applicant's assertions.
Mr Vakras, who was representing himself but who is clearly an experienced person in legal matters, referred the Court to the case of Perez v Fernandez [2012] FMCA 2 (a case on radically different facts) and to the Supreme Court case. He referred to the Copyright Act, s.203, which he submitted prevented him from bringing his copyright claim in the Supreme Court. He also referred to s.195AZA of the Copyright Act, which denotes the remedies available to a Court for an infringement of an author's moral rights in a work, which I note includes the capacity to award damages.
The applicant also referred to his written submissions, which I marked for identification as MFI1, which included an extract from the case of Perez v Fernandez. The written submissions also reproduce ss.53 and 82 of the Trade Practices Act 1974. Mr Vakras went on to assert that what Mr Cripps had done was because of his Greek background. He said the transcript of the Supreme Court proceeding was not complete and he was seeking access to audio. It should be noted that Mr Vakras' oral submissions were prolix and rambling, and little easier to understand than the written documentation he had filed.
The Application for Summary Dismissal
As I have already indicated, the submissions made on behalf of the respondents in support of the summary dismissal claim spent, so far as I can recall, no time whatever canvassing the terms of s.17A of the Federal Circuit Court Act or the authorities that give guidance as to how that should be approached. Section 17A relevantly reads:
“(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
Rule 13.10 of the Federal Circuit Court Rules 2001 provides:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
The operation of s.17A of this Court's Act has been, in my respectful view, clearly indicated by the authoritative decision of the Full Court of the Federal Court in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372. That case was, of course, concerned with s.31A of the Federal Court Act, but that section is relevantly indistinguishable from s.17A.
In that case, Rares J said at [45]:
“The character of a judgment under s 31A is identified by the test which the section prescribes. The judgment is a determination that the proceeding or part of the proceeding “… has no reasonable prospect of success”. Thus, when the Court gives judgment for a party under s 31A(1) or (2) it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes. By enacting s 31A, the Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised. It is inherent in the power conferred by s 31A that the Court need not, and does not ordinarily determine the proceedings on their merits after a full trial. A decision under s 31A is that the claim or defence has “no reasonable prospect of success”. It is not that the claim or defence has been proved so that the right or cause of action or defence merges into judgment and loses its independent existence: Blair v Curran (1939) 62 CLR 464 at 531–532 per Dixon J. Rather, the power conferred by the section authorises the Court to make a decision summarily that there is no reasonable prospect that if a trial were to take place the claim or defence would succeed. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication of those merits.”
I refer, further, to the judgment of Gordon J at [123]-[134] in Jefferson Ford. It is a lengthy extract and I do not, therefore, set it out in full but I have had careful regard to, and respectfully adopt, all of the matters to which her Honour referred. In Rana v Deakin University [2012] FMCA 575 I paraphrased her Honour’s observations as including (the last number of Brackets indicated the relevant paragraphs of Gordon J’s judgment:
“(a) the express words of s.31A impose a different and less stringent test to that prescribed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 AT [129]-[130] (at [124]).
(b) section 31A enables the Court to manage proceedings and assists in controlling the costs and delays involved in resolving proceedings by summarily dismissing claims which have no reasonable prospects of success (at [125]).
(c) each case must be considered separately. There is no hard and fast set of rules (at [127]).
(d) where there is a real issue of fact relevant to a pleaded cause of action which must be resolved to determine whether the claim succeeds, it is unlikely that the part of the proceedings has no prospects of success (at [130]).”
Her Honour went on to say, at [132]:
“I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences — but only reasonable inferences — in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [30]; Boston Commercial Services 236 ALR 720 at [45]. I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”
The Application of Section 17A to the Facts of this Case
It should be noted that the case that Mr Vakras is seeking to propound is, essentially, that because he used Greek words in the essays which accompanied his exhibited artwork, Mr Cripps put up the disclaimers which were at the centre of his complaint. Mr Cripps, in his Affidavit affirmed 21 July 2015, asserts as earlier indicated at paragraph 8:
“During the course of the exhibition, the Applicant's artworks were accompanied by written materials which were in convoluted English language, and also in Greek. I was concerned that the written materials could be interpreted as being anti-Palestinian and racist.
Annexure RRC-1 annexed to the Affidavit (and there is no suggestion it is not the explanation that Mr Vakras actually put up to accompany his painting) is, in my view, in text that would meet the description "convoluted English language". Amongst other words contained in annexure RRC-1 is 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. 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: the purpose of life is to wage war; the only way to guarantee ascent to heaven is to die while killing unbelievers; and, according to the Koran, this makes Islam the "House of Peace" (hence the concomitant claim that Islam is a religion of peace) 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.”
In page 3 of his Originating Application, Mr Vakras refers to the use of words in Greek in the following terms:
“These words were used in the title of one painting in the exhibition. The claim made was that by my use of Greek words
I could be conveying something sinister, which Cripps, not being Greek, could not know or understand, and that this made it pro‑Israel and anti-Palestinian.
The words used were "chaos", "chasm" (both these words are also in Greek in the Originating Application). These words accompanied a painting about the Pythia, the Oracle (priestess) of Delphi, who is depicted between chaos (the gap) and the chasm (the void).”
From this, what I would take is that there were only two words - in what were, obviously, somewhat lengthy essays accompanying all of the artworks at the exhibition - which were in Greek.
Mr Vakras relies strongly on the transcript of the proceeding in the Supreme Court to support his assertion that the actions of Mr Cripps were based upon his Greek ethnicity. The disclaimers that were put up (they are in evidence in various places in the materials) go no further than saying that the views expressed in the artist's materials are not to be taken to be those of the gallery. They say no more or less, in my view, than that.
It should be noted that Kyrou J, at [242] of his decision asserted about the disclaimer:
“The Disclaimer was legally unobjectionable because it said no more than was obvious. It is true that the Gallery had not used a similar disclaimer in relation to any previous exhibition and that the Disclaimer was installed after the exhibition had commenced. Mr Cripps obviously decided to install the Disclaimer after the opening night on 18 June 2009, when he informed Mr Vakras of his concerns about the potentially offensive statements in Mr Vakras' essays and Mr Vakras rejected his suggestion to add a short document which explained Mr Vakras' paintings in simple English.”
Although his Honour's finding is at odds with the assertion in
Mr Cripps' Affidavit that disclaimers were not uncommon, it is a finding of fact on a matter directly in issue in that proceeding and likely to be directly in issue, if not critical, in this proceeding. This is, in my view, a judicial determination directly involving an issue of fact or law which has disposed of the issue so that it cannot, thereafter, be raised by the same parties (Blair v Curran (1939) 62 CLR 464)).
In any event, even on the materials as they stand, the finding by Kyrou J that the putting up of the disclaimers was unobjectionable, would seem to fit entirely comfortably with Mr Cripps' assertion that the disclaimers arose because of possible racism on the part of the written materials. Even accepting that the inclusion of words in Greek added to the difficulties associated with the essays, in my opinion, on the materials taken as a whole, it is simply not more probable than otherwise that Mr Vakras' assertion will be made out. This is because, in even the brief passage from which I have quoted in paragraph 38 above, there is such evident and complete support for Mr Cripps' assertions as to the objectionable or possibly objectionable nature of the essays themselves.
Thus, while I have formed the view that the question of the disclaimers has been the subject of an issue estoppel (albeit that Ms Raymond was a party to the prior proceeding and is not a party to this one), the issue between Mr Vakras and the respondents was exactly the same, (and is not touched upon by the addition of Ms Raymond), and the claim, in my view, has no reasonable prospects of success. It, therefore, follows that the Application should be dismissed. This puts to one side the question of the claims now sought to be agitated under the Copyright Act and the Consumer Law. These were not, on any view, matters before the HRC and were, therefore, incapable of being litigated through the referral, pursuant to s.46PO of the HRC Act.
Nonetheless, and this is a question not canvassed by either of the parties, it might be argued that these matters form part of a single Federal controversy capable of being heard in the Court's accrued jurisdiction. Needless to say, since the matter was not addressed at all, no authority has been cited touching upon the extent to which this Court - being, of course, limited by the statutory conferrals of power made to it - can properly expand, through the accrued jurisdiction,
a statutory jurisdiction limited in the fashion the human rights actions are limited by s.40PO(3) of the HRC Act.
In the ultimate, it is not necessary for me to deal with this matter.
I simply am not able to construe the alleged copyright infractions as giving rise to any justiciable controversy. Of course, it is the case that as an artist, Mr Vakras has moral ownership in his works. It is just not clear to me that the erection of the disclaimer in any way contravened or subtracted from his moral rights.
As earlier indicated it is possible that Mr Vakras is asserting that
Mr Cripps actions in putting up the disclaimers infringed his integrity authorship and thus contravening s.195AQ of the Copyright Act. Pursuant to s.195AI of the Copyright Act the author of the work has the right of integrity of authorship in respect of the work and not to have the work subjected to derogatory treatment. Derogatory treatment of artist work is defined in s.195AK of the Copyright Act includes:
“the doing of anything else in relation to the work that is prejudicial to the authors or reputation.”
There are other forms of derogatory treatment but the one that I have set out is the most broadly defined.
As I have said more than once, Mr Vakras has not referred to any of these sections of the Act but assuming in his favour that this is what he is complaining about (it seems to me to be the only part of the legislation which would ground any such complaint), I do not think it is possible to conclude that he will be able to successfully to prosecute his case. The erection of the disclaimers simply is not likely to lead to a curial finding, taking all evidence at its best for Mr Vakras, that
Mr Cripps’ conduct contravened s.195AQ of the Copyright Act. This leaves to one side the defences open under s.195AS which would in my view be clearly applicable here.
So far as the Consumer Law claim is concerned, this is a matter that falls to be considered under the Anshun estoppel defence to which I now turn. It should be noted that the application to join Ms Raymond as a party is plainly misconceived. She was not a party to the HRC complaint (although she was keenly involved in it, as is plain from some of the correspondence annexed to the complaint) and, therefore, it would plainly be inappropriate to join her at this stage.
The Anshun Estoppel Point
It should be noted in regard to the judgment of Kyrou J that the prohibition contained in s.91 of the Evidence Act 1995 is not engaged in circumstances where the Court is concerned with res judicata or issue estoppel which are expressly preserved by the terms of s.93. Anshun estoppel takes its name from the case of Port of Melbourne Authority v Anshun Pty Ltd already referred to above. The majority judgment of Gibbs CJ, Mason and Aickin JJ stated at [598]:
“The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson, supra, 3 Hare, at 115; 67 ER at 319. The Vice-Chancellor expressed the principle in these terms:
“where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. 36 ALR 3 at 9
The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
As was noted by Kenny J in the decision of the Supreme Court of Victoria Court of Appeal in Gibbs v Kinna [1999] 2 VR 19 at [23]:
“Whether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances. It seems, however, that there are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable. The first is that the cause of action must be one that could have been raised in the previous proceeding. For the reasons already stated, leaving aside the Trade Practices Act claims, this much is established in the present case. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding.”
In this instance, it is immediately apparent that the applicant could have raised both his Copyright Act and Consumer Law claims in the Supreme Court case. Contrary to his submissions, the Supreme Court of Victoria is not prohibited by the terms of either s.195AZA or s.203 of the Copyright Act from hearing Copyright Act matters (see s.135AP of the Copyright Act).
It should be noted that pursuant to s.195AZC:
“The jurisdiction of the Supreme Court of a State or Territory in a matter arising under this Part is to be exercised by a single Judge of the Court.”
It is, therefore, clear that Mr Vakras could have brought his Copyright claims into the Supreme Court proceeding.
Furthermore, it can be shortly stated that the Consumer Law proceeding was equally capable of being brought. Given the contractual claims brought by the applicant and Ms Raymond in the Supreme Court, which were closely interrelated with the alleged failure of the respondents in this proceeding to fulfil their representations as to what was to occur at the exhibition of paintings, it is immediately apparent that this was a matter that should have been litigated in that proceeding.
Putting the matter shortly, I think that it was unreasonable of Mr Vakras not to have brought his Copyright and Consumer Law claims into the proceeding in the Supreme Court. While his partner, Ms Raymond, was, of course, a party to that proceeding, her interests are so clearly wholly aligned with his that her absence from this proceeding is a matter of no moment.
The facts that would arise in this proceeding are, to all effects and purposes, identical with those which arose in the Supreme Court proceeding. In all the circumstances, this is a classic case in which it is appropriate to find that the conduct of Mr Vakras in not pursuing these claims was unreasonable in the Anshun sense, and an appropriate case in which the Court should exercise its power to stay the proceedings.
Conclusion
For all of the above reasons, it is, in my view, entirely clear that the application should be dismissed. Taking the materials filed as a whole, it is an all too obvious endeavour to revisit the outcome of the Supreme Court trial in which Mr Vakras and Ms Raymond were unsuccessful. That conclusion is only supported by the endeavours presently to join Ms Raymond as a party. In addition to all the other difficulties faced by Mr Vakras, this application is clearly, as the respondents submit, an abuse of process.
It should be noted that neither party has referred me, in any detail, to the subsequent conclusions of the Court of Appeal, which heard an extensive appeal and in which Mr Vakras and Ms Raymond had a not inconsiderable measure of success. As I read the two decisions of the Court of Appeal, a further trial was ordered in respect to some matters, although no one has informed me as to whether or not this has occurred. The findings made by the Court of Appeal, which reversed a number of the findings made by Kyrou J, did not, however, interfere with the relevant findings of fact which were made, and to which I have referred.
It should also be noted that the transcript extracts of cross‑examination of Mr Cripps only go to support the findings that I have made earlier, namely, that the difficulties with words in Greek were of the same character as difficulties with Mr Vakras' convoluted and difficult to understand English, in any event.
I will hear the parties on the question of costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 January 2016
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