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Vakras v Cripps

Vakras v Cripps

Case [2015] VSCA 193 24 July 2015

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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
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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).
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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.
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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vakras v Cripps

Details

AGLC: Vakras v Cripps [2015] VSCA 193
Case: [2015] VSCA 193
Decision Date: 24 July 2015

CaseChat Overview and Summary

In the case of Vakras v Cripps, the plaintiffs brought an action against the defendants for defamation and breach of contract. The defamation arose from three articles published by the defendants on their respective websites, which referenced the hiring of part of a gallery operated by the plaintiffs. The plaintiffs presented five causes of action, pleading multiple imputations, while the defendants pleaded Hore-Lacy imputations as defences and qualified privilege in relation to some of the articles. The judge made strong credibility findings, which the defendants sought to challenge. The defendants' appeals raised several issues, including whether the judge's findings on the imputations were correct, whether certain meanings found by the judge were outside the plaintiffs' pleaded cases, and whether the awards of damages were excessive. Additionally, the defendants argued that the duty of good faith should not be implied into the hiring contract, which the plaintiffs had also claimed.

The court examined the credibility findings made by the trial judge and determined that they were not open to challenge, as they were based on substantial evidence. The court found that the judge did not err in determining which imputations were proved and which were impermissible. The court also found that the meanings attributed to certain imputations by the judge were not outside the scope of the pleaded cases. Regarding the defence of qualified privilege, the court found that two of the three articles did not attract this defence. The court concluded that the award of ordinary compensatory damages was not manifestly excessive, but there was an error in the assessment of aggravated compensatory damages, as the judge took into account an impermissible consideration. Consequently, the appeal by one defendant was allowed and the causes of action were remitted for retrial, while the appeal by the other defendant was dismissed with respect to one plaintiff and allowed with respect to the second plaintiff.

In relation to the contract, the court found no error in the trial judge's decision that the duty of good faith should not be implied into the hiring contract. The appeal was dismissed on this issue. The final orders of the court included allowing the appeal by one defendant and remitting the causes of action for retrial, dismissing the appeal by the other defendant with respect to one plaintiff, and allowing the appeal with respect to the second plaintiff. Additionally, the court found no error in the trial judge's decision that the duty of good faith should not be implied into the hiring contract, and the appeal on this issue was dismissed.

Orders