Vakras v Cripps
[2015] VSCA 193
•24 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0098
S APCI 2014 0099
DEMETRIOS VAKRAS & ANOR Appellants V ROBERT RAYMOND CRIPPS & ANOR Respondents ---
JUDGES: WARREN CJ, ASHLEY JA and DIGBY AJA WHERE HELD: MELBOURNE DATE OF HEARING: 5–6 March 2015 DATE OF JUDGMENT: 24 July 2015 MEDIUM NEUTRAL CITATION: [2015] VSCA 193
First Revision: 27 July 2015, cover sheet details.JUDGMENT APPEALED FROM: Cripps v Vakras; Vakras v Cripps [2014] VSC 279 (Kyrou J). ---
DEFAMATION – Two plaintiffs – Two defendants – Publication of three articles on websites of defendants referable to hiring of part of gallery operated by plaintiffs – Five causes of action – Pleading of multiple imputations – Pleading of Hore-Lacy imputations by defences – Pleading of qualified privilege by defences – Strong credibility findings made by judge – Whether necessary to consider challenge to credibility findings in order to decide appeals by defendants – Whether judge erred by finding certain plaintiffs’ imputations proved – Whether judge erred by finding certain Hore-Lacy imputations impermissible – Whether certain meanings found by judge outside plaintiffs’ pleaded cases – Whether judge erred in finding gist of certain meanings – Whether two of three articles attracted defence of qualified privilege – Whether award of ordinary compensatory damages manifestly excessive – Whether judge took into account an impermissible consideration in assessment of aggravated compensatory damages – Appeal by one defendant allowed and causes of action remitted for retrial – Appeal by other defendant dismissed with respect to one plaintiff, allowed with respect to second plaintiff.
CONTRACT – Hiring contract – Whether duty of good faith should be implied into contract – No error in finding duty of good faith should not be implied – Appeal dismissed.
---
APPEARANCES: Counsel Solicitors For the Appellants Mr D Gilbertson QC with Ms S Varney HWL Ebsworth For the Respondents Mr C J Dibb Efron & Associates WARREN CJ
ASHLEY JA
Digby AJA:
1 There are appeals before the Court from judgments entered in two proceedings on 28 July 2014 after an eight day trial before a judge of the Trial Division, heard between 17 and 26 March 2014. The parties to the two proceedings were Demetrios Vakras and Lee-Anne Raymond on the one hand, and Robert Cripps and Redleg Museum Services Pty Ltd on the other. In one proceeding, Vakras and Ms Raymond were the plaintiffs. In the other, the plaintiffs were Cripps and Redleg. Vakras and Raymond are the appellants in each instance because, in the proceeding which they brought, they failed almost entirely; whilst in the proceeding in which they were the defendants, they failed spectacularly. For convenience, in what follows, we will refer to the parties as, on the one hand, ‘Vakras’ and ‘Ms Raymond’ or, collectively, ‘the artists’ or ‘the defendants’; and, on the other hand, ‘Cripps’ and ‘Redleg’ or, collectively, ‘the plaintiffs’.[1]
[1]Except in the case of the appeal in the contract proceeding; as to which, see later.
2 The proceeding brought by Vakras and Ms Raymond was for breach of contract. It was commenced in the Victorian Civil and Administrative Tribunal on 7 August 2011. It was transferred to the Supreme Court on 18 May 2012.
3 In that proceeding, Vakras and Ms Raymond claimed damages for breach of contract in an amount exceeding $13,500. The judge awarded them a total of $5.98.
4 The proceeding brought by Cripps and Redleg was for defamation and was commenced in the Supreme Court on 1 April 2011. The defamations were alleged to have been contained in three articles, Vakras being the author of two of them, and Ms Raymond the third. The articles were uploaded to their respective websites variously in the period 21 August 2009 to 2 April 2011. The judge found that, in all, 13 defamatory imputations were conveyed by the articles, 11 of them with respect to Cripps, and two of them with respect to Redleg. In respect of those imputations, his Honour rejected various defences which had been raised. He entered judgment in favour of Cripps against Vakras for $350,000, which included $100,000 aggravated compensatory damages, and in favour of Cripps against Ms Raymond for $70,000, including $20,000 aggravated compensatory damages.[2] He entered judgment against each of Vakras and Ms Raymond in favour of Redleg for $15,000.
[2]In each instance, his Honour rightly entered judgment for a single sum. But in the ‘Other matters’ section of the form of judgment he explained that his award included a specified amount in respect of aggravated compensatory damages.
5 The two proceedings had a common origin; that is, the hire by the artists of a floor in a gallery (‘the gallery’) operated by Redleg, of which company Cripps was the sole shareholder, secretary and sole director, for the purposes of an exhibition of their artwork (‘the exhibition’). The gallery, known as the Guildford Lane Gallery, located in Melbourne’s central business district, opened in 2008. The exhibition was held between 18 June and 5 July 2009. The evidence adduced at trial showed that it was an unhappy event for each of Vakras, Ms Raymond and Cripps.
6 The contract claim brought by Vakras and Ms Raymond alleged breaches of the hiring agreement made between them and Redleg. The defamation proceeding arose out of the publication of the articles,[3] in which the artists trenchantly criticised Cripps.
[3]Remembering, in the case of an article carried on the internet, that for the purposes of defamation publication occurs when the article is downloaded: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 606–7 [44] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The parties
7 Vakras, born in 1962, was, in 2009, a part-time self-taught artist of the surrealist school. He had exhibited work previously. His art had not been commercially successful, which is not to say that he had not sold some paintings.
8 Ms Raymond, born in 1963, was, as at 2009, also a part-time artist and an adherent of the surrealist school. She had been the partner of Vakras since about 1983. She had also exhibited previously, with only very modest commercial success.
9 To say that each of the artists had not enjoyed much commercial success before 2009, and to say that they were only part-time artists, is not in any way to imply that their art was not very important to them. The evidence showed, in our opinion unequivocally, that it was of importance to them. The ‘essays’ which accompanied their artwork at the exhibition demonstrated that fact very clearly. The essays made it apparent that, whether or not it achieved its purpose, each particular painting was the intended expression of much thought. Whether that thought, ever or always, embraced what might be called ‘mainstream’ thinking is another matter, irrelevant when assessing the importance of their art to each of them.
10 Cripps was aged 67 at time of trial. He left school after Year 9, undertook an apprenticeship, worked in various jobs, then served in Vietnam as a conscripted member of the Army between 1966 and 1969. After that, he worked as a technician in the Sculpture Department of the Caulfield Institute, and later in the Architectural Department of the Royal Melbourne Institute of Technology. In the 1980s, he established an art transportation business. It appears that he worked very hard in that business, driving trucks all around Australia. When that work became too hard for him, he worked as a truck driver for another employer.
The gallery
11 Then, in 2008, Cripps (nominally, Redleg) refurbished an old building at a cost of some $1 million, and opened the gallery. From that time, Redleg conducted two businesses — the gallery and the art transportation business; the latter, according to Cripps’ evidence, in a small way, making use of vehicles owned and operated by others.
12 The gallery held its first exhibition in the second half of 2008. It appears that it continued in business until late 2011 or early 2012. Cripps then established a new business, ‘Ruby’s Music Room’ in 2013. At time of trial, that business was continuing.
13 We do not understand it to have been part of the case pursued by Cripps and Redleg that the closure of the gallery was a consequence of the defamations, although the judge stated, in connection with damages to be awarded in favour of Redleg, that he was ‘unable to find that the First Vakras Article or the Raymond Article contributed to the closure of the Gallery’.[4]
[4]Cripps v Vakras; Vakras v Cripps [2014] VSC 279, [780] (‘Reasons’).
14 The gallery was of four stories. At the time of the exhibition, Redleg, as the operator, employed some five full-time staff. Volunteers were also sought, via the gallery website, to assist in running the gallery; and there were a number of volunteers at the time of the particular exhibition.
15 The gallery operated, at least in part, by hiring out space to artists working in different disciplines for specified periods. The exhibition was an instance of such an arrangement.
16 The intent of the gallery, in the relatively short period that it operated, was described this way in its profile on the National Association for the Visual Arts Ltd website:[5]
It aims to develop an experimental and dynamic environment for an arts community that values interaction, education and diversity.
[5]Its home page was depicted in the first Vakras article.
The defamation proceeding
17 Almost all of the argument on the appeals focused upon the appeal in the defamation proceeding. We turn to address the issues raised by that appeal.
The causes of action
18 Five causes of action were pleaded, arising out of the publication of defamatory matter in the three articles. There were five causes of action because, by operation of s 8 of the Defamation Act2005 (‘the Act’), each publication of defamatory matter gives rise to a single cause of action in respect of a particular plaintiff, regardless that it carries more than one defamatory imputation. The common law position has been preserved, rather than the position which applied by operation of s 9 of the Defamation Act1974 (NSW).[6]
[6]Setka v Abbott [2014] VSCA 287 [97]–[102] (Warren CJ and Ashley JA) (‘Setka’).
19 Cripps pleaded three causes of action — one in respect of each publication.
20 In respect of each publication Cripps pleaded multiple imputations.
21 Redleg pleaded two causes of action — one arising out of the first Vakras article, and one arising out of the Ms Raymond article.
22 In each instance Redleg pleaded a single imputation.
23 The judge assessed damages payable to Cripps in respect of the two Vakras articles in a global sum, and entered judgment against Vakras in that amount. It is not possible to say what amount of damages his Honour awarded in respect of the articles discretely. Moreover, it is impossible to know what contribution each proved defamatory imputation made to those amounts, although his Honour did state that the ‘Hitler’ and ‘harassment’ imputations were the most serious.
24 Whilst, by s 39 of the Act, damages may be assessed in a single sum when a judge finds for a plaintiff on more than one cause of action, assessing damages in that way and entering judgment for the ‘composite’ amount is apt to create a problem. An appeal is brought against a judgment, not against findings. The judgment in favour of Cripps against Vakras depended upon findings that each Vakras article contained multiple defamatory imputations to which there was no defence. If it was to be concluded that one or more of those imputations, or that the sting attributed to a particular imputation, could not be sustained, then the judgment would be impugned. Its basis would be undermined to an indeterminable extent.
25 We turn to the other causes of action. His Honour awarded distinct amounts of damages in favour of Cripps against Raymond, and in favour of Redleg against each of the defendants.
26 As we have said, Cripps pleaded multiple imputations in respect of the Ms Raymond article. If it was to be concluded that one or more of the imputations which the judge found proved, or the sting attributed to a particular imputation, could not be sustained, then again the judgment would be impugned, its basis being undermined to an indeterminable extent.
27 The position is more straightforward in the case of Redleg. In each instance, it relied upon a single imputation. If it was concluded that for some reason the proved imputation could not be sustained, then almost certainly the judgment would have to be set aside. But if the attack upon the judge’s finding failed, the judgment should be sustained.[7]
[7]A possible argument that the amount of the judgment should be increased if judgment in respect of one or more of the other causes of action was set aside was not pursued.
Meanings
28 In order to ‘delimit the boundaries within which the action is to be fought’, to ‘identify the field of inquiry at trial’,[8] the plaintiffs pleaded meanings which they asserted were conveyed by the publications. They were entitled to succeed if they proved those meanings, or (in any instance) a permissible variant. The trier of fact was thus entitled to find for one or both of the plaintiffs on a meaning which they did not plead, but only if the meaning was ‘not substantially different from and not more injurious than’ the pleaded meaning.[9]
[8]Advertiser News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206, 219 [76] (Doyle CJ, with whose reasons Vanstone and White JJ agreed). His Honour’s observations were made in the context of the common law, but they equally apply in a proceeding brought under the Act.
[9]Hore-Lacy v The Age Co Ltd (2000) 1 VR 667, 686 [52] (Charles JA) (‘Hore-Lacy’).
29 The formulation just mentioned was also the permissible limit of what used to be called a ‘Polly Peck’[10] defence, but which, for reasons explained in Setka,[11] is more accurately described as a Hore-Lacy justification defence.[12] The nature of such a defence at common law — and it so continues under the Act[13] — was described this way in Setka:
[10]Polly Peck Holdings plc v Trelford [1986] QB 1000 (‘Polly Peck’).
[11][2014] VSCA 287, [55]–[59] (Warren CJ and Ashley JA).
[12]Referring to Hore-Lacy (2000) 1 VR 667.
[13]Setka [2014] VSCA 287, [115]–[125].
60Thus, by a Hore-Lacy justification defence, a defendant denied that the publication had the meanings relied upon by the plaintiff and did not seek to justify them. A defendant did not seek to do so because it would be anomalous to confess and avoid to a meaning which, according to the defendant the publication was incapable of conveying.
61Assuming that the defence succeeded to that point, assuming that the plaintiff would have been entitled to rely, as permissible variants, upon the meanings proposed by the defendant, and assuming that the defendant justified those meanings, the plaintiff would fail.
62Pleadings structured in the way approved by the majority in Hore-Lacy addressed what Ormiston JA described as the special position of defamation actions, most particularly the ability of the plaintiff to go outside his pleaded case and yet succeed. That ability was a consequence of the evolution of practice described at [47]–[48] above. It is unlike those cases in which, because the trial departs from the pleadings, a party may succeed on an unpleaded case.
…
64The pleading of a justification defence in conformity with the reasons of the majority in Hore-Lacy necessarily operated to define, together with the statement of claim, the substance of the issues to be litigated at trial. …[14]
[14]Ibid [60]–[62], [64].
30 The potential importance of what we have said at [28] is this: the judge found that in six instances a publication conveyed a defamatory imputation which was neither the imputation pleaded by the plaintiffs nor (where it applied) the Polly Peck meaning (for convenience, we will call it that, because that is the way it was often enough described in his Honour’s Reasons) pleaded by the particular defendant. In three of those six instances, the defendants maintained on appeal that what may be called ‘the judge’s meaning’ was outside the plaintiffs’ pleaded case. The plaintiffs’ response, by notice of contention, was to assert that the judge erred by not finding the imputations which they had pleaded were established in two of those instances.[15]
[15]And in two other instances also.
31 We add that, so far as we can see, the judge gave no indication to the parties at trial that he was minded to find a meaning other than that advanced by one or other party. This analysis was not challenged by the respondents when put by this Court to counsel. For that reason, counsel were deprived of the opportunity of, for instance, warning his Honour that to find a particular meaning might be to go outside the pleaded case.
32 The significance of the cited passage at [29] above is this: as will be seen, on a number of occasions the judge held that a Polly Peck meaning pleaded by a defendant was outside the permissible boundaries of such a defence, or else did not arise. In those instances, his Honour either found that the plaintiff’s imputation was conveyed, or else that a judge’s meaning was conveyed.
33 In those circumstances, the Polly Peck justification defence had no work left to do. The joint judgment in Setka,[16] in the passage cited at [29] above, shows why that was so. In short, such a defence is not pleaded in justification of anything other than the Polly Peck meaning. Yet his Honour made findings, often enough, that the particulars of justification did not support either the Polly Peck meaning (which he had already rejected), or the meaning as found.
[16]Setka [2014] VSCA 287.
34 Such findings were, in fact, irrelevant to the issue of liability. Nonetheless, it appears to us that there is an explanation why they were made. In the case of a Polly Peck meaning, his Honour may have wished to deal with the justification plea in the event that, on appeal, the plea became relevant. In the case of a meaning pleaded by one of the plaintiffs, or a judge’s meaning, his Honour may have acted upon the common law position (in the times before particularisation) that a plea of justification was a plea to any meaning that the impugned publication could bear. In this connection, we note that Setka had not been published when his Honour published his Reasons.
The articles
35 The first Vakras article was uploaded onto the Vakras website on 21 August 2009. At trial, the article remained on the website, the carrier of which had been changed a number of times in response to its having been blocked after complaint by Cripps.
36 The second Vakras article, which was an addendum to the first article, was posted on 2 April 2011, the day after the filing of the writ.[17] Those parts of it which contained what the judge described as the ‘intimidating’ and ‘harassment’ imputations were removed, as the judge found, 36 hours later.[18]
[17]And, it appears, service on Vakras.
[18]Vakras gave evidence that the removal occurred between 24 and 36 hours later. The judge, who accepted little of the evidence given by Vakras, made a finding at the outer limit of the witness’s evidence.
37 The Ms Raymond article was posted by Ms Raymond on her website on 10 September 2009. It remained there as at trial, having been updated from time to time. Again, the carrier had been changed a number of times between September 2009 and trial, for the same reason as had the first Vakras article.
38 Annexures ‘A’, ‘B’ and ‘C’ to these reasons are facsimiles, respectively, of the first Vakras article, the second Vakras article and the Ms Raymond article.
39 Although, with the exception of the second Vakras article, the articles were uploaded in 2009, and there was evidence of publication soon thereafter, the defamation proceeding was not commenced, as we have said, until 1 April 2011. By operation of s 5(1AAA) of the Limitation of Actions Act 1958, the plaintiffs were thereby precluded from relying upon publication of the first Vakras article and the Ms Raymond article earlier than 1 April 2010.
The exhibition — a chronology
40 The artists, having attended an exhibition at the gallery, made an application to exhibit in August 2008.
41 Their application was accepted in October that year.
42 Details of the hiring cost were sent to Ms Raymond on 2 January 2009. The hiring cost for the period 18 June to 5 July 2009 was stated to be $3,465.
43 After discussion on 23 January 2009, the hiring cost was increased to $3,960, the hired space to include the so-called ‘open studio’.
44 The artists signed a hiring agreement on 17 March 2009. The agreement was signed by Ms Pickett, an employee of Redleg, on 25 May 2009.
45 The artists paid the required $3,960 on or before the due date for payment, 15 May 2009. They also paid a $500 bond at the time.
46 There was a meeting between the artists and Cripps on 5 June 2009. The content and tone of what was then said was a matter of controversy at trial.
47 The artists installed their paintings between 15 and 16 June 2009 on the first floor of the gallery. Essays which accompanied the paintings, and explained their intent, were affixed to the wall near the painting to which the particular essay related. This was the situation in the case of a painting by Vakras titled ‘Secular Muse’ and an essay which related to it. The essay is reproduced as annexure ‘D’ to these reasons.
48 The exhibition opened on 18 June 2009. On that occasion, there was an important conversation between Vakras, Ms Raymond and Cripps.
49 On 20 June, Cripps had disclaimer notices, and a warning notice, posted in the vicinity of the exhibition.
50 On 24 June, there was another important conversation between Cripps, Vakras and Ms Raymond.
51 The exhibition concluded on 5 July 2009.
52 A single painting was sold in the course of the exhibition. It was a painting by Vakras, and the sale price was $450.
53 Not until 13 August 2009 did Redleg pay the artists $950, which they had been demanding for some time. That sum represented the refund of the bond and money for the painting which Vakras had sold.
54 This bare chronology of events does not address controversies which arose between the artists and Cripps before, during and after the exhibition. Those controversies — we have identified four important incidents at [46]–[50] above — were of importance to the outcome of the defamation proceeding.
Matters which were in issue below; and matters in issue on the appeal
55 First, by their defences Vakras and Ms Raymond denied that the article(s) of which they were respectively the authors bore any of the plaintiffs’ meanings, and denied that the same was defamatory of the plaintiffs. The latter plea was evidently untenable in the case of any pleaded imputation which was established.
56 Second, with respect to most, but not all, of the imputations pleaded with respect to the three articles, the artists further or alternatively pleaded Polly Peck imputations, which they sought to justify both at common law and under s 25 of the Act. It was not argued for the plaintiffs that the pleading of Polly Peck imputations was impermissible, whether at common law or in the context of s 25 of the Act. It was not suggested by either side that the practical content of the common law and statutory defences differed in any way that could determine the success or failure of the justification aspect of the defences.
57 On the appeal, the defendants contended that the judge erred by finding that the articles conveyed defamatory imputations which the defendants were unable to justify. In part, this involved a challenge to the judge’s rejection, on one basis or another, of the Polly Peck meanings.
58 Third, the defendants also pleaded fair comment and its statutory counterpart, the defence of honest opinion set out in s 31 of the Act. His Honour rejected each of those defences. No issue was raised on the appeal as to the correctness of his Honour’s reasons in that connection.
59 Fourth, the defendants pleaded common law qualified privilege in respect of all three articles, and its statutory counterpart in s 30 of the Act. At trial, as we understand it, they abandoned reliance upon the s 30 defence, and focused attention solely upon common law qualified privilege. Be that as may, it is at least clear that the notice of appeal against the defamation judgments does not make reference to the s 30 defence.
60 Cripps and Redleg pleaded that the articles were not published in circumstances which could attract the operation of a qualified privilege defence. They also pleaded malice.
61 The judge rejected the defence in each instance. He held that the occasions of publication did not attract the operation of the defence, and that in any event malice had been established.
62 On appeal, the artists challenged his Honour’s conclusions with respect to that defence in the case of the first Vakras article and the Ms Raymond article, but not with respect to the second Vakras article.
63 Fifth, the first Vakras article contained a number of hyperlinks. One of them was to a Vakras article titled ‘Hitler’s disciples: the new racism of the political Left’. His counsel submitted that what the judge characterised as the ‘Hitler imputation’ was to be assessed in part by the context provided by the hyperlinked article. His Honour ruled against that submission. In his Reasons,[19] his Honour observed, with respect to the hyperlinked article, that ‘the reader would be exposed to Mr Vakras’ theories about so-called new-left Nazis’. Some, he stated, might understand those theories. Others might be confused.
[19][2014] VSC 279 (‘Reasons’).
64 The ruling was not challenged on the appeal.
65 Sixth, the plaintiffs claimed ordinary compensatory damages. Cripps also claimed aggravated compensatory damages. The defences denied that either plaintiff had any damages entitlement. They also denied that Cripps was entitled to aggravated compensatory damages, and they pleaded provocation in mitigation of damages.
66 The judge held that the plaintiffs were entitled to receive damages as claimed. His Honour rejected the factual basis of the provocation plea.
67 By their appeal, the defendants challenged most of his Honour’s conclusions as to damages.
68 The judge ordered that the defendants, in each proceeding, pay 80% of the costs of Cripps and Redleg on an indemnity basis.[20] That order was challenged by their grounds of appeal. But in oral argument, counsel for the defendants stated that the ground was not pursued in the event that the appeal was lost. It might be otherwise if the appeal succeeded, depending upon the extent of success.
[20]Cripps v Vakras (No 2) [2014] VSC 532 [17].
The nature of the appeal. Credibility findings
69 The judge made many findings. Included amongst them were assessments of the credibility of the parties and other witnesses, and of the reliability of their evidence.
70 His Honour formed a generally favourable view of Cripps. Thus:
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.[21]
[21]Reasons [92]–[95].
71 This assessment contrasted very sharply with his Honour’s assessment of Vakras and Ms Raymond. Thus:
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. I have found that he lied about important aspects of the events of 18 and 24 June 2009.
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 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.[22]
[22]Ibid [96]–[100] (citations omitted).
72 In making findings adverse to the defendants, the judge stated that he had applied the principles in Briginshaw v Briginshaw,[23] and s 140(2)(c) of the Evidence Act2008.
[23](1938) 60 CLR 336, 360–3.
73 In the passage cited at [71] above, the judge referred to his findings that each of Vakras and Ms Raymond deliberately lied about ‘important aspects of the events of 18 and 24 June 2009’, and that they included deliberately false statements in the articles. Some of those findings appear in his Honour’s reasons at [159], [179], [193], [194] and [195]. But they are not the only places where his Honour made seriously adverse findings about the defendants.
74 The judge also made adverse findings about the evidence of two witnesses called by the defendants — Ms Biggs-Kocaj and Ms Bowman. His Honour described the evidence of the former as unreliable; and he said of Ms Bowman that she was ‘the most partial witness’.[24]
[24]Reasons [101]–[103].
75 Notwithstanding the strength of his Honour’s adverse assessment of the credibility, particularly, of the defendants, their senior counsel submitted in this Court that the relevant findings were insupportable. He further submitted that his Honour’s assessment of the credibility of the witnesses had caused him to wrongly reject their evidence about important conversations, and that this had infected much of his Honour’s resolution of disputed issues. He highlighted findings made by his Honour with respect to justification,[25] malice,[26] aggravated damages,[27] and mitigation.[28] He referred also to a finding made in the contract proceeding.[29]
[25]Ibid [329], [330], [338] (Hitler imputation), [339] (bully imputation), [507] (destruction imputation), [509] (sabotage imputation).
[26]Ibid [416](a) and (c), [526] (b)(i) and (iii).
[27]Ibid [725].
[28]Ibid [663].
[29]Ibid [241].
76 Counsel submitted that one matter was very clear. In finding that the defendants had deliberately lied in their evidence, the judge had so concluded notwithstanding that — (1) counsel for the plaintiffs had not cross-examined to that effect; (2) counsel for the plaintiffs had made no final submission to that effect; and (3), his Honour had made the findings without any intimation at trial that he might do so. Counsel for the plaintiffs did not demur to this submission.
77 Counsel further submitted that reasons given by his Honour to explain his adverse findings as to credibility were unsound, and in part rested upon error as to the state of contemporaneous documentary material. He detailed that material.
78 For his part, counsel for the plaintiffs submitted that this was not a case where it could be said that the judge ‘failed to use or palpably misused his advantage’, or acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’. Rather, counsel submitted, his Honour had delivered a long, careful and thorough judgment which did not merit any such description. Further, his Honour’s fact-finding was sufficiently supported by the evidence, including the contemporaneous documentary evidence.
79 The nature of an appeal such as this is not in doubt. Ordinarily, the Court is not authorised to interfere with the judgment below except if error is demonstrated. But if the court is persuaded, inter alia, on an appeal by way of re-hearing, that a particular factual finding should have been made which is contrary to a finding made by the judge at first instance, error will be demonstrated.
80 Even when findings made at first instance depended upon, or were influenced by, the judge’s assessment of the credibility of witnesses, the Court must perform its task, as Gleeson CJ, Gummow and Kirby JJ explained in Fox v Percy.[30] It is not correct to say that, because a finding was credibility-based, it must necessarily withstand scrutiny. In our respectful opinion, this Court neatly summarised the position in Jew v Holloway[31] when it said this:
33.Credibility findings in the reasons of the primary judge will not insulate those reasons from proper analysis. A finding by the judge at first instance, substantially influenced by an opinion concerning the credibility of witnesses, will not relieve this court of its statutory appellate duty to decide the case for itself by way of rehearing, while recognizing the advantage enjoyed by the judge who conducted the trial. Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy, that in addition to incontrovertible facts or uncontested testimony, facts which fall short of being ‘incontrovertible’, may support an appellate conclusion that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ or that the trial judge has ‘failed to use or has palpably misused his advantage’ so as to demonstrate that the trial judge's conclusions are erroneous. Observations to similar effect were also made by Kirby J in Earthline, and repeated in CSR Ltd v Della Maddalena. Where the conclusion of the primary judge depends on inferences drawn from evidence that is unchallenged, unanswered or is ostensibly reliable, or facts that have been found but can equally be re-determined by the appellate court, without relevant disadvantage, the appellate court must not then shrink from giving effect to its own conclusion. Even where credibility findings represent an apparent obstacle to appellate intervention, the finding may be so much contrary to compelling inferences of the case that it justifies and authorises appellate interference in the conclusions reached by the trial judge. The observations of Kirby J in Earthline, that credibility findings that left untouched other evidence which required separate evaluation and which may render the judge’s conclusion improbable or contrary to compelling inferences, have been applied to justify an appellate review of the evidence itself and the drawing of its own conclusions.
34.Credibility findings have not impeded appellate intervention where there has been an inadequate analysis of important evidence in the reasons for decision. They will not relieve the trial judge of the obligation to subject all the evidence to rational analysis including countervailing factors and to draw whatever inferences were capable of arising having regard to all the evidence and in a manner which exposed the reasoning process. Conclusions as to credibility cannot be a substitute for an exposition of the judge’s process of reasoning. Hayne J observed in Waterways Authority v Fitzgibbon that a trial judge‘s findings will be defective unless the obligation of evaluating all of the evidence bearing upon the relevant issue of fact, has been discharged. Where the trial judge’s reasons are significantly inadequate, because they do not make reference to all of the important evidence or explain how the facts which may stand in the way of conclusions have been evaluated, findings as to credibility will not then be conclusive of the proper outcome of the trial.[32]
[30](2003) 214 CLR 118, 128–9 [28]–[31].
[31][2013] VSCA 260.
[32]Ibid [33]–[34] (Redlich and Coghlan JJA and T Forrest AJA) (citations omitted).
81 This exposition discloses that the circumstances in which this Court will intervene despite findings being credit-based are not as narrow as counsel for the plaintiffs submitted was the situation.
82 We pause to make two observations.
83 First, in what follows in these reasons it has in fact been possible to focus upon circumstances which have not required consideration of credit findings made by the judge, or of credit-based or credit-influenced findings. We have not had to consider, for instance, the defendants’ attack upon the judge’s findings with respect to the conversations on 5, 18 and 24 June 2009 to which the defendants and Cripps were parties. This has not been because of a desire to avoid confronting the attack upon the judge’s findings as to credit, and upon credit-based and credit-influenced findings, but because, as will be seen — (a) resolution of the appeal has not in the end turned upon their correctness or otherwise; and (b), it seems undesirable that this Court should engage in its own analysis of credit issues which, no doubt, will arise on the partial retrial which we consider is necessary.
84 Second, although it will not always be so, there will be a potential breach of procedural fairness if a judge makes seriously adverse credit findings about a witness — for instance, that the witness deliberately lied, or told a ‘blatant lie’ — when no such allegation was made in cross-examination of the witness, when counsel made no submission to that effect, and when the judge gave no intimation to the party who would be affected of the possibility that such a finding would be made.[33]
[33]There are many cases which have stated general propositions referable to breach of procedural fairness by judges, and many cases which have investigated whether there was a breach in the particular circumstances. See, for instance, Stead v Government Insurance Office of New South Wales (1986) 161 CLR 141; Smith v Bar Association (1992) 176 CLR 256; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, [4] (Mason P), [69]–[79] (Ipp JA); Brown v Dato Pty Ltd [2006] WASCA 170, [24]–[25] (McLure JA); Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 494 [3] (Warren CJ), 500–3 [22]–[27] (Chernov JA), 508–12 [42]–[52] (Redlich JA); Adamson v Ede [2009] NSWCA 379, [50]–[73], [110]–[118] (Campbell JA); and Burke v Corruption and Crime Commission (2012) 289 ALR 150, [189]–[202] (Buss JA).
The course of the trial
85 For whatever reason, it was agreed between the parties that the artists should go first on all issues — that is, both with respect to the contract claim which they pursued and the defamation proceeding in which they were the defendants. The upshot was, with respect to the defamation proceeding, that by the time the artists’ case ended, Cripps knew exactly what was being said by the artists about matters in controversy, and what had been said by witnesses called on their behalf relating to matters in controversy.
86 The artists both gave evidence. They called seven other witnesses.
87 Cripps gave evidence. He and Redleg also adduced evidence from seven other witnesses.
The imputations seriatim
88 We turn to consider, one by one, the imputations which were pleaded, the defendants’ responses, the judge’s conclusions, the pertinent ground or grounds of appeal, and the competing arguments on the appeal.
89 The judge gave a descriptive characterisation to each of the 16 imputations which he considered. We will adhere to that characterisation in these reasons.
90 As we have earlier noted, the defendants pursued defences at trial which were not pursued on appeal. We will not advert to those defences when considering the imputations one by one.
91 Further, as we have earlier noted, the defendants pursued a qualified privilege defence in respect of each of the articles. The judge rejected that defence, and his rejection was the subject of appeal in respect of the first Vakras article and the Ms Raymond article. We have concluded, see later in these reasons, that the judge was correct in rejecting the qualified privilege defence. For that reason, when describing what was in issue in the case of the individual pleaded imputations, we will not refer to that defence. But it is to be understood as having been raised with respect to all of them.
92 We have also noted above that, in each instance, the relevant defendant denied the meaning(s) pleaded by the particular plaintiff, and denied that the article in question was defamatory. When describing the pleadings in the case of each particular imputation, we will not mention those blanket denials — although, as will be seen, we consider that the denial of a plaintiff’s meaning was pertinent in more than one case. But again, they are to be understood as having been raised in each instance.
93 When dealing with the imputations seriatim, we will refer to the three imputations in respect of which the judge found against the particular plaintiff. We will do so because the defendants contended on the appeal that those findings were relevant to imputations which the judge found were established.
94 We begin with the imputations alleged to have been conveyed by the first Vakras article.
The ‘disgraceful’ imputation
Pleadings
95 By paragraph 8(a) of their second further amended statement of claim (‘the statement of claim’) the plaintiffs pleaded that this imputation was conveyed:
The first plaintiff is a disgraceful individual who is to be avoided assiduously.
96 By paragraph 8A(a) of his third further amended defence (‘the defence’ or ‘the Vakras defence’), Vakras pleaded what was said to be a Polly Peck meaning, which he pleaded was true:[34]
The first plaintiff treated the defendants in a disgraceful manner and other artists should avoid him.
[34]By which we mean true in substance and in fact and/or substantially true under s 25 of the Act.
97 The defence set out the following particulars in support of the plea:
(1)In relation to the meaning in sub-paragraph 8A(a), the first defendant relies upon the following;
(i)in or about February 2009, the defendants and the first plaintiff acting on behalf of the second plaintiff, or alternatively the second defendant and the first plaintiff acting on behalf of the second plaintiff, entered into an agreement (hiring agreement) for the defendants, or alternatively the second defendant, to hire the Guildford Lane Gallery at 20-24 Guildford Lane, Melbourne, between 16 June 2009 and 6 July 2009, for the purpose of an exhibition by the defendants of their art works (exhibition). The agreement was in writing and may be inspected by appointment at the offices of the solicitors for the defendants;
(ii)it was a term of the hiring agreement that the exhibition space included the use of an area of the Gallery known as the “Open Studio”;
(iii)it was also a term of the hiring agreement that the hirer would be refunded the $500 surety paid by the hirer provided that the gallery space was returned to its original condition;
(iv)in or about February 2009, the plaintiffs and the defendants, or alternatively the defendants and the first plaintiff acting on behalf of the second plaintiff, entered into an agreement or arrangement for the Gallery to sell a catalogue of the defendants’ art works at the exhibition. The agreement or arrangement was oral and was contained in a conversation at the Gallery in or about that time between the defendants and one or both of the first plaintiff and Yolande Pickett, Manager of the Gallery;
(v)wrongfully and in breach of the agreement or contrary to the arrangement, shortly prior to the commencement of the exhibition the defendants were informed that the Gallery would not sell the catalogue at the exhibition;
(vi)shortly after 1 June 2009 during preparation for the exhibition, the first plaintiff berated the second defendant, without justification, in relation to a meeting that was scheduled but that did not take place between the defendants and the first plaintiff on 1 June 2009;
(vii)the opening of the exhibition took place on 18 June 2009. At the opening, the first plaintiff stated publicly and in an aggressive manner that the first defendant's exhibition was racist and insensitive;
(viii)also at the opening, the first plaintiff approached the second defendant’s employer. While she was looking at a painting of a naked female figure the first plaintiff asked her if it was her “lovely bottom” in the painting. In doing so the first plaintiff embarrassed the woman in question and the defendants;
(ix)during the exhibition, the first plaintiff placed notices around the exhibition to the effect that “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” (disclaimers). The first plaintiff did so without any prior consultation with the defendants and did not advise the defendants that the notices had been placed around the exhibition;
(x)on or about 24 June 2009, the defendants attended at the Gallery for the purposes of photographing their works and the disclaimers, the latter of which had been brought to their attention by one or more persons who had attended the Gallery. The first plaintiff behaved in an aggressive and intimidating manner towards the first defendant by pointing his finger at and near the first defendant’s chest and saying words to the effect that he was not scared of the first defendant and that he had met people, such as wharfies and truckies, who were far scarier than the first defendant. The first plaintiff then, without lawful justification, ordered the defendants to leave the Gallery;
(xi)for about the last 10 days of the exhibition, the first plaintiff prohibited the first defendant from speaking to him or any of the staff at the Gallery without prior notification. The prohibition is contained in an email from the first plaintiff dated 26 June 2009, a copy of which is in the possession of the solicitors for the defendants and may be inspected by appointment;
(xii)for about the last 10 days of the exhibition, the first plaintiff prohibited the second defendant from speaking to any of the staff at the Gallery other than him. The prohibition is contained in the email from the first plaintiff dated 26 June 2009;
(xiii)for about the last 10 days of the exhibition, the first plaintiff prohibited the defendants from attending the Gallery without first notifying him. The prohibition is contained in the email from the first plaintiff dated 26 June 2009. The first plaintiff did so in circumstances where he had previously agreed on behalf of the second plaintiff to the defendants having access to the Gallery from 8 am until 10 pm on each day of the exhibition, which agreement is contained in the hiring agreement;
(xiv)wrongfully and in breach of the hiring agreement, the first plaintiff failed or refused to make the Open Studio available for use by the defendants during the exhibition;
(xv)wrongfully and in breach of the hiring agreement, the first plaintiff retained the surety paid by the defendants for approximately 6 weeks after the conclusion of the exhibition and refused to return it unless the defendants agreed that there would be “no outstanding business or legal issues” regarding the exhibition. The first plaintiff did so in circumstances where he had previously agreed on behalf of the second plaintiff to return the surety at the end of the exhibition on 6 July 2009 provided that the space at the Gallery had been returned to its original condition, which agreement is contained in the hiring agreement;
(xvi)the first plaintiff refused to pass onto the defendants money received from the sale of their artwork at the exhibition unless the defendants agreed that there would be “no outstanding business or legal issues” regarding the exhibition;
(xvii)by reason of the matters referred to above, the first plaintiff treated the defendants in a disgraceful manner and other artists should avoid him.
Text
98 In accordance with principle, the question of what meaning was conveyed was to be arrived at by considering what would be gleaned by the ordinary reasonable reader (‘the hypothetical reader’ or ‘the reader’) from the entirety of the defamatory publication. That said, the plaintiff particularly relied upon the following:
Guildford Lane Gallery is run by the toxic Robert Cripps. AVOID THIS GALLERY ASSIDUOUSLY!
and upon a collection of adjectives by which the article characterised Cripps as —
poisonous, vile, repellent, malignant, racist, liar, bellicose, bully, stupid.
99 There was only one use of the adjective, ‘disgraceful’ in the text of the article. Thus —
Cripps’ conduct throughout was thoroughly disgraceful.
100 That sentence appeared at the end of an extensive description by Vakras of what he claimed had been Cripps’ conduct towards the defendants at different stages during the exhibition.
The judge’s findings
101 The judge concluded that the plaintiffs’ meaning was conveyed.[35] He held further that the meaning pleaded by the defence was not a permissible Polly Peck variant — because it was substantially different.[36]
[35]Reasons [286].
[36]Ibid [288].
102 His Honour held that the meaning was defamatory.[37]
[37]Ibid [304].
103 His Honour held that Vakras had failed to establish that the disgraceful imputation — that is, the imputation as found — was true in substance and in fact.[38] In relation to the Polly Peck imputation, his Honour concluded that Vakras had failed to establish a factual foundation for that imputation.[39] He went on to find that certain conduct on the part of Cripps which the defendants had established was
insufficient to establish in substance and in fact that Mr Cripps treated the Artists in a disgraceful manner. Less still does the conduct establish that the Disgraceful Imputation is true in substance and fact.[40]
[38]Ibid [329].
[39]Ibid [330].
[40]Ibid [331].
104 This was one of those occasions where, having concluded that the Polly Peck meaning was impermissibly variant, his Honour in fact dealt with, and rejected, the matters relied upon in justification — both with respect to the Polly Peck meaning and the plaintiff’s meaning. Justification as pleaded was never relevant to the plaintiffs’ pleaded meaning and, as we have said earlier, it was no longer relevant to the liability defence. Further, however understandable the course which his Honour undertook may have been, it was apt to distract consideration of the appeal. That is because his Honour often enough rejected matters pleaded in justification in reliance upon credit-based or influenced findings which were challenged in this Court. Almost all of the circumstances particularised as set out at [97] above involved findings of that character.
Grounds of appeal
105 By the grounds of appeal, it is contended that, relevantly, his Honour erred in making these findings of fact:
(d)the disgraceful imputation was carried by the first Vakras article (Reasons [289]);
(e)the Polly Peck version of the disgraceful imputation did not satisfy the principles in Hore-Lacy (Reasons [288]);
(f)the first appellant failed to establish that the Polly Peck version of the disgraceful imputation was true in substance and in fact or was substantially true in accordance with s 25 of the Defamation Act 2005 (Vic) (Reasons, [329]–[330]).
Submissions
106 Defendants’ counsel submitted that Cripps’ imputation was not conveyed; whereas Vakras’s imputation was conveyed. The hypothetical reader, reading the whole article, would see that it was concerned with what was said to be the disgraceful conduct of Cripps towards the artists. Further, credit-based findings had been decisive in his Honour’s conclusion, obiter, that justification had not been established.
107 For the plaintiffs, counsel submitted that the imputation as found was conveyed by the article. It should not be concluded that the judge had failed to take account of the fact that the hypothetical reader reads the whole article.
Conclusions
108 In our opinion, the hypothetical reader would not glean, reading the whole article, that it was Cripps who was said to be disgraceful and who should be avoided assiduously. Rather, it is at least very likely that the reader would glean the meaning contended for by Vakras. That is, the reader would glean that it was being said that others should avoid the gallery because Cripps’ conduct towards the artists had been thoroughly disgraceful.
109 The judge observed that the submissions for Vakras, which emphasised the cited words in capitals at [98] above, and the sentence cited at [99], ‘attribute to an ordinary reasonable reader a literalism that is contrary to the authorities’.[41] We doubt that the criticism was justified. But in any event, it tended to deflect attention from the litany of bad treatment of the artists by Cripps which the article asserted, and which culminated in the sentence cited at [99] above.
[41]Ibid [286].
110 To conclude that the reader, at least very probably, would glean from the article the meaning pleaded by Vakras does not mean, however, that his meaning was a permissible variant of the plaintiff’s imputation. At the least, there is a big difference between it being said of someone that he is a disgraceful individual who should be avoided assiduously, and it being said of a person that he has conducted himself disgracefully in his dealings with two artists, and that other artists should avoid dealing with him.
111 The critical point, however, for present purposes is that we cannot accept the judge’s conclusion that the plaintiffs’ meaning was conveyed. That was the plea made by Vakras by paragraph 8 of his defence. There is no occasion, for the purposes of this appeal, to further consider the alternative meaning proffered by Vakras; and whether, contrary to the judge’s conclusion, he could justify it.
112 But that is not the end of the matter. As will be seen, this is not the only imputation found by his Honour which, for one reason or another, we have concluded has been successfully impugned on the appeal. The overall circumstances — which include our analysis with respect to the imputation now under consideration — are such that we conclude that there must be a new trial on two of the five causes of action, including Cripps’ action against Vakras with respect to the first article. It may be, on a remitter, that Cripps would apply to amend his statement of claim to allege the meaning pleaded by Vakras noted above at [96]. If any such application was made and granted, Vakras would presumably seek to justify. In that event, the judge’s rejection of a number of the particulars of justification should not bind the judge on a retrial.
The ‘duress’ imputation
Pleadings
113 Cripps pleaded, by paragraph 8(b) of the statement of claim, that the first Vakras article carried the imputation that:
the First Plaintiff used economic duress to force the First and Second Defendants to agree to terms that were not in the original contract for rental of space at the Gallery;
114 Vakras pleaded, in substance, that this imputation was true. He particularised truth essentially as follows:
the economic duress consisted of the first plaintiff retaining the surety for approximately 6 weeks after the exhibition and refusing to pass on to the defendants the proceeds from the sale of their artwork unless the defendants agreed [that there would be ‘no outstanding business or legal issues’ regarding the exhibition].[42]
Text
[42]A combination of particulars (1)(xvi) and (2)(ii) of the particulars subjoined to paragraph 8A of the defence.
115 The particularly pertinent text was as follows:
The owner, Robert Cripps, had, at the time of writing this, still not paid us for work that sold during the show [payment was eventually made over 6 weeks later — after we sought legal advice]. Payment of monies owed was only secured when we were forced into ‘agreeing’ to terms which were never in the original contractual agreement with Cripps, but which he demanded we agree to. He gained ‘agreement’ by placing us under financial duress. That he procured ‘agreement’ by duress renders this ‘agreement’ legally voidable.
The judge’s findings
116 The judge found that the imputation had been conveyed and that it was defamatory. He identified the matters relied upon by way of justification,[43] held that justification had been established,[44] and explained why that was so.[45]
[43]Reasons [321]–[322].
[44]Ibid [329].
[45]Ibid [332].
117 This is what his Honour said with respect to justification:
332.In relation to the Duress Imputation, the evidence has established that Mr Cripps used his ability to withhold payment of the Sale Proceeds and the Bond to the Artists for the purpose of forcing them to agree to a form of release to which Redleg was not entitled under the Hiring Agreement. His conduct, in substance and in fact, constituted the use of economic duress to force the Artists to agree to a term that was not in the original contract for the rental of space at the Gallery. The fact that the Artists were forced to agree to a single additional term rather than ‘terms’ is immaterial in the circumstances.
Conclusion
118 The remaining significance of the duress imputation is whether, as the defendants submitted on the appeal, it has a bearing upon other meanings which they unsuccessfully sought to justify.
The ‘profit’ imputation
Pleadings
119 By paragraph 8(c) of the statement of claim, Cripps pleaded that the article conveyed the imputation that —
the First Plaintiff, having made a profit from the First and Second Defendants' art exhibition at the Gallery, … deliberately inhibited the First and Second Defendants’ capacity to promote the exhibition, causing the exhibition to fail;
120 By paragraph 8A(c), Vakras pleaded what was said to be a Polly Peck meaning:
the first plaintiff profited from the defendants’ art exhibition, notwithstanding that he inhibited the defendants’ capacity to promote the exhibition, causing it to fail;
121 In support of the meaning thus asserted, Vakras relied upon these matters:
(i)in or about March and May 2009, the defendants paid the second plaintiff the hire fee under the hiring agreement;
(ii)the first plaintiff is and was at all material times beneficially entitled all of the issued shares in the second plaintiff;
(iii)accordingly, the first plaintiff profited from the defendants’ art exhibition;
(iv)by reason of one or more of the following matters, the first plaintiff inhibited the defendants’ ability to promote the exhibition:
(A)wrongfully and in breach of the agreement or arrangement in relation to the catalogue referred to in sub-paragraph (1)(iv) to the particulars to paragraph 8A above, the first plaintiff did not offer for sale, or alternatively procured that the second plaintiff did not offer for sale, the defendants' catalogue at and during the exhibition;
(B)by reason of the prohibitions imposed by the first plaintiff and referred to in subparagraphs (1)(xi), (xii) and (xiii) to the particulars to paragraph 8A above, the defendants were restricted or constrained in their ability to sell their art works at the exhibition;
(C)by reason of the disclaimers referred to in sub-paragraph (1)(ix) to the particulars to paragraph 8A above, it can be inferred that potential buyers at the exhibition were likely to have been discouraged from purchasing the defendants’ art works;
(v)the exhibition failed in that by reason of the first plaintiff inhibiting the defendants’ ability to promote the exhibition, the defendants sold only one art work, in relation to which they received $460 (sic), whereas they expended $13,548.15 on the exhibition, consisting of:
$ 3,960.00 hire of the Gallery
$ 2,384.26 art materials
$ 407.00 promotional
$ 3,740.00 printing catalogue
$ 1,054.53 printing other
$ 1,350,00 art works framing
$ 251.19 transportation
$ 301.82 miscellaneous
$13.448.80 Total
(vi)by reason of the matters referred to above, the first plaintiff profited from the defendants’ art exhibition, notwithstanding that he inhibited the defendants’ capacity to promote the exhibition, causing it to fail.
Text
122 The particularly pertinent text was as follows:
During the course of the exhibition he, by his actions, circumvented our capacity to promote our work. Cripps turned the exhibition into an expensive debacle for us, but he made a profit on it.
The judge’s reasons
123 The judge concluded that neither the meaning contended for by Cripps nor the meaning contended for by Vakras accurately conveyed the meaning of the article. Contrary to Cripps’ formulation:
The article does not convey that Mr Cripps deliberately set out to inhibit the artists’ capacity to promote the exhibition as distinct from his actions producing this result. Nor does the article convey that Mr Cripps set out to achieve this result only after he had made a profit from the exhibition.[46]
[46]Ibid [294].
124 So far as the defendant’s formulation is concerned, his Honour held that
The word “notwithstanding” detracts from the causal relationship between Mr Cripps’ conduct and the failure of the exhibition which is part of the message conveyed by the first Vakras article.[47]
[47]Ibid [294].
125 His Honour resolved upon a different meaning:
The meaning that is carried by the first Vakras article is that “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”.[48]
[48]Ibid [295].
126 Then his Honour concluded that this meaning was defamatory.[49]
[49]Ibid [306].
127 Thereafter, his Honour set out the particulars upon which Vakras had relied with respect to the Polly Peck version of the profit imputation.[50] He then held that Vakras had failed to establish that the profit imputation (as he found it to be) or the Polly Peck imputation was true.[51] He explained that conclusion at some length.
334The evidence, however, has not established that Mr Cripps inhibited the Artists’ capacity to promote the Exhibition or that the Exhibition failed. The Artists gave evidence that the opening night was a success. The evidence has not satisfied me that the disagreeable discussions that took place on 18 and 24 June 2009 were heard by any other artist or by any guest. Even if the female visitor to the first floor of the Gallery on 24 June 2009 had overheard part of the conversation, she was obviously not put off by what she heard, as she told Ms Raymond that she would return with her partner.[52] Mr Cripps made an inappropriate comment to Ms Ladas but she had already purchased a painting and there was no evidence that any offence that she may have taken as against Mr Cripps affected her support for the Artists or the Exhibition.
335There was no evidence — as distinct from speculation — that the Disclaimer had any negative impact on the success of the Exhibition, less still that it caused the Exhibition to fail.
336The Artists’ evidence was to the effect that, in previous exhibitions, they each sold between one and three paintings.[53] The sale of one of Mr Vakras’ paintings at the Exhibition is consistent with the outcome of previous exhibitions. Based on their sales histories, there was never any prospect that the Artists would recover the costs of the Exhibition set out at [249] above.
337For the above reasons, Mr Vakras has failed to establish that the Exhibition failed, less still that it failed because of any conduct by Mr Cripps. Further, based on my findings that are set out earlier in this judgment,[54] the particulars at [323(a)] above of how Mr Cripps allegedly inhibited the Artists’ ability to promote the Exhibition have not been made out. The Artists did not give any evidence of how the notice requirements in Mr Cripps’ email of 26 June 2009 interfered in any way with their ability to promote the Exhibition. For example, they did not give evidence that, after 24 June 2009, they attended the Gallery but were denied access or that they gave notice that they intended to attend the Gallery at any particular time and were informed that the nominated time was unsuitable. Accordingly, Mr Vakras has not established the defence of justification in relation to the ‘Polly Peck’ imputation pleaded by him, less still in relation to the Profit Imputation. [55]
[50]Ibid [323]–[324].
[51]Ibid [329].
[52]See ibid [182](f) (citations in original).
[53]See ibid [23], [25]. Mr Vakras gave evidence that at one previous exhibition he sold between eight and 10 digital prints of his artwork.
[54]See ibid [114]–[118], [233]–[242].
[55]Ibid [333]–[337].
Grounds of appeal
128 Vakras relies upon the following grounds in connection with the profit imputation:
7. The learned trial judge erred in making the following findings of fact:
…
(g)the Polly Peck version of the Profit Imputation did not satisfy the principles in Hore-Lacy (Reasons, [294]);
(h)the first appellant failed to establish that the Polly Peck version of the Profit Imputation was true in substance and in fact or was substantially true (Reasons, [333] to [337]);
…
Submissions
129 Counsel for Vakras submitted that both the judge’s meaning and the Polly Peck meaning were conveyed, and were true. He relied upon evidence about difficulties in selling the catalogues which Vakras and Ms Raymond had produced at their cost, the terms of the disclaimer notices, the difficulties which it was said the artists had in accessing the gallery after 26 June, and the failure the artists to make sales.
130 Counsel for Cripps submitted that the judge’s meaning was within the pleaded case; but if that was wrong, then he relied upon the notice of contention and contended that the plaintiff’s meaning had been conveyed. Neither could be justified.
Conclusions
131 The judge’s meaning, in our opinion, was conveyed. It was within the plaintiff’s pleaded case. It was defamatory and Vakras failed to justify it. Whilst, contrary to the judge’s conclusions, conduct by Cripps may have inhibited the artists in the promotion of their exhibition, its economic failure — ‘an expensive debacle’ as the article put it — could not reasonably be attributed to any such conduct. The prospect of the artists making a profit out of the exhibition was, judged by their very limited past success in selling their artwork, remote.
132 We thus perceive no error in the overall conclusions which his Honour reached concerning the profit imputation. That conclusion may assist the judge who conducts what we consider is the necessary re-trial, but it does not mean that the judge would be tied to reaching the same conclusion.
The ‘Hitler’ imputation
Pleadings
133 By paragraph 8(d) of the statement of claim, Cripps pleaded this meaning:
The First Plaintiff is a racist who has embraced the view of National Socialism.
134 Vakras pleaded, by paragraph 8A(d) of his defence, the following meaning, which he pleaded was true:
(d)The First Plaintiff is a racist who holds views that are similar to those of Adolf Hitler.
135 He relied upon the following particulars (emphasis in original):
2.(i) At the opening of the exhibition on 18 June 2009, the first plaintiff said to the first defendant and/or the second defendant the words referred to below (or words to the effect of those words), other than the words attributed to the first and second defendants, in reference to an essay written by the first defendant and posted on the wall next to one of his paintings:
“Now, you see? That’s why I’ve had a problem with you. Your writing shows a lack of sensitivity to the delicate situation in Palestine.”
“I have a problem with your opinions on Islam. Your essays are insensitive to what’s happening in Palestine.”
“Your opinions of Islam, they’re insensitive and racist.”
“By criticising Islam, your opinions on the Koran, make what you write racist.”
“It is racist to criticise Islam. Your opinions of the Koran are racist because they would mean Jews are victims of Muslims.”
“Criticising Islam is racist. Your opinion of what the Koran says is unfair to Muslims. They are oppressed by the Jews. Your opinions blame Muslims when they are forced into reacting to what Jews are doing to them. You’re insensitive to their suffering. I have a problem with the Jews. I have a problem with what the Jews are doing. I have a problem with the Jews’ state in Palestine.”
“Muslims are forced by the Jews to react. Muslims are the victims. It is your opinion of what is written in the Koran.”
“You blame Muslims simply because they are forced by Jews into doing what they do.”
The first defendant said, “You mean, like suicide bombings in Israel?”
The first plaintiff responded, “Yes.”
The first defendant said, “So? What? School children being blown up on their school bus by a suicide bomber, that’s ok?”
The first plaintiff responded, “Yes.”
“Jews are not Palestinian and should not be there.”
The second defendant said, “But that, what you are saying right there, that Jews can’t be in Palestine is racist, Robert.”
The first plaintiff responded, “So? What of it?”
The second defendant said, “You’ve accused us of being racists for criticising Islam, but the show criticises all religions. You are the one telling us how you hate the Jews, which is racist, but your racism is fine?”
The first plaintiff responded, “And? I don’t care. Criticising Islam is racist.”
The second defendant said, “But why only that one religion and not the others? So it’s only racist to criticise Islam but with other religions it is ok?”
The first plaintiff responded, “Yes.”
“You’re criticising Muslims who are forced to react to the Jews in Palestine. The Jews are the problem. If there were no Jews there then…”
“You’re racists. I do not want racists or your racism in my gallery. I want you out. I want you and your racist art out of my gallery! I will not be associated with racists and racism. I want you out.”
136 At trial, counsel for Cripps conceded that the meaning relied upon by Vakras was a permissible Polly Peck variant of the meaning pleaded in the statement of claim. The judge found that the meaning conveyed was the Polly Peck meaning.[56]
[56]Ibid [288].
Text
137 It appears that the critical text was as follows:
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].
Cripps took exception to my explanatory essays.
Some of my essays juxtapose quotes from both the Old and New Testaments alongside Hitler’s Mein Kampf, to show that Hitler’s racial exterminations were Biblical (religious). [An assessment of Hitler’s Christianity]
Hitler wrote:
“...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.” Mein Kampf p.60, Manheim translation.
Hitler’s enmity of Jews is based on 1 Thessalonians 2.13-16 from the New Testament [details].
Yet it was not the exposure of the Biblical basis of Hitler’s racism that Cripps took exception to. His actual objection was to my quoting from the Koran, particularly 9.38-52, in which the god of Islam, “Allah”, guarantees automatic “martyrdom” to those who are killed while in the act of killing non-Muslims.
According to Cripps, quoting the Koran is insensitive to “Palestine”, because he is opposed to, as he said, “the Jew’s state in Palestine.” He then accused me of “racism”! (Neither “Israel” or “Palestine”, or the conflict there are mentioned in the exhibition)
For Cripps the actions of “Palestinian” (Arab Muslim) suicide murderers in killing Jews are justified. My quotes form the Koran show unambiguously that these acts are crimes committed on behalf of Islam. These quotes mean:
- that the Jews killed in Israel are victims of Islamic intolerance;
- that the Jews have not brought the situation upon themselves by their actions to which “Palestinians” are reacting. The Koran predates the existence of the modern state of Israel by over 1300 years;
- that his hatred of Jews is exposed for the outright racism that it is.
Cripps, who does not know the difference between opinion and fact, placed disclaimers everywhere in the exhibition.
The “Disclaimer” reads:
“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.”
The quotes from the Koran though are NOT an opinion. What quoting from the Koran achieved was the exposure of Cripps for what he is: a racist.
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.
138 Vakras also described Cripps as a racist amongst a series of admixed adjectives and nouns on the first page of the article. There, the description made no reference to Hitler.
The judge’s reasons
139 The judge described the defamatory gist of the imputation as follows:
307.The Hitler Imputation inarguably defames Mr Cripps. To describe someone as a racist is defamatory because modern Australia has firmly set its face against racism and regards it as vile and odious. It is common for people to lose their jobs and to be ostracised for engaging in racist conduct. To add to the description of a person as a racist that they have views similar to those of Hitler elevates the defamation to one of the most egregious examples of its type. To associate anyone with the views of Hitler is to profoundly damage their reputation because the message that is immediately conveyed is that the person condones the atrocities that Hitler committed based on his views that the Aryan race is superior to all other races and that Jews (among others) should be exterminated. In modern Australian society, that message represents a devastating assault on the person’s reputation and is likely to make them a pariah.
308.Hitler is universally regarded as one of the most abhorrent individuals of all time. The images with which he is instantly associated are those of the Holocaust and the commission of atrocities on innocent civilians based on the racist view set out at [307] above. These images are conveyed by the mere mention of Hitler’s name and are so potent that they would be instantly attributed to anyone who is accused of being a racist who holds views that are similar to those of Hitler. The levelling of such an accusation at any person would eviscerate their reputation.
309.The hypothetical referees described in Radio 2UE and Lamb, upon reading the phrases, ‘the new-left Nazis’ and ‘the sentiments of Hitler expressed in his Mein Kampf’ would immediately call to mind the policies of genocide perpetrated by Hitler and the Nazis, including the Holocaust, and would recoil in disgust. As a result, the reader would immediately form the view that Mr Cripps is a person to be loathed and detested for his inhumanity.
310.I reject the premise implicit in Mr Gilbertson’s submissions that, read in its context, the racism and the views of Hitler to which the Hitler Imputation refer simply comprise the political philosophy of the new-left Nazis. This premise is unsustainable insofar as it relies on the context provided by the First Vakras Article, unaided by the Hyperlinked Article. The ordinary reasonable reader who read the First Vakras Article as a whole would not interpret the description of Mr Cripps as a self-confessed racist who has adopted the sentiments of Hitler expressed in his Mein Kampf as a benign, academic description of a person who has adopted a particular political philosophy. That is because the other parts of the article do not in any way detract from the image described at [307] to [309] above. Rather, they reinforce it.
311.I refer, in particular, to the reference to ‘Hitler’s racial exterminations’ and the statements that Mr Cripps’ ‘hatred of Jews is exposed for the outright racism that it is’ and that ‘[l]ike the Nazis before her Yolande Pickett might in the future claim to have been following orders.’ It is notorious that Hitler hated Jews and adopted barbaric means aimed at exterminating them. It is also well known that, after Germany was defeated in the Second World War, some members of Germany’s armed forces sought to excuse the atrocities they inflicted on innocent civilians by claiming that they were merely following orders.
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]
ANNEXURE B — 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.
ANNEXURE C — 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
ANNEXURE D — 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)
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