Vakras v Cripps

Case [2016] FCA 955

FEDERAL COURT OF AUSTRALIA

Vakras v Cripps [2016] FCA 955

Appeal from: Application for leave to appeal: Vakras v Cripps & Anor [2016] FCCA 20
File number: VID 163 of 2016
Judge: DAVIES J
Date of judgment: 15 August 2016
Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal from decision of Federal Circuit Court of Australia – summary dismissal of claims – claim under Racial Discrimination Act 1975 (Cth) – whether no reasonable prospect of success

PRACTICE AND PROCEDURE – application for leave to appeal from decision of Federal Circuit Court of Australia – summary dismissal of claims – Anshun estoppel – relevant principles – moral rights claim under Copyright Act 1968 (Cth) – claim under Australian Consumer Law s 18 – whether unreasonable not to have brought causes of action in proceeding in Supreme Court of Victoria
Legislation:

Australian Consumer Law and Fair Trading Act 2012 (Vic) ss 8, 224

Copyright Act 1968 (Cth) ss 195AZGH

Federal Circuit Court of Australia Act 1999 (Cth) s 17A

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 31A(2)

Federal Court Rules 2011 (Cth) r 35.11

Racial Discrimination Act 1975 (Cth) ss 18B, 18C
Cases cited:

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287; [1995] FCA 1299

Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389; [2012] FCA 307

Cripps v Vakras [2014] VSC 279

Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56; [2001] FCA 123

Henderson v Henderson (1843) 67 ER 313

Ling v Commonwealth (1996) 68 FCR 180; [1996] FCA 1646

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 89 ALJR 750; [2015] HCA 28

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242
Date of hearing: 28 June 2016
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 43
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: The First Respondent appeared in person and on behalf of the Second Respondent

ORDERS

VID 163 of 2016
BETWEEN:

DEMETRIOS VAKRAS

Applicant
AND:

ROBERT RAYMOND CRIPPS

First Respondent

REDLEG MUSEUM SERVICES PTY LTD

Second Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

15 AUGUST 2016

THE COURT ORDERS THAT:

1.The application for leave to appeal filed on 22 April 2016 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DAVIES J:

  1. The applicant (“Mr Vakras”) has applied under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) and r 35.11 of the Federal Court Rules 2011 (Cth) for leave to appeal from the judgment of the Federal Circuit Court of Australia (“FCC”

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Details
AGLC
Vakras v Cripps [2016] FCA 955
Case
[2016] FCA 955
Decision Date

CaseChat Overview and Summary

In the case of Vakras v Cripps, the applicant sought leave to appeal against a decision of the Federal Circuit Court of Australia (FCC), which had dismissed his claims under the Racial Discrimination Act 1975 (Cth), the Copyright Act 1968 (Cth), and the Australian Consumer Law. The application was made under s 17A of the Federal Court of Australia Act 1976 (Cth) or, alternatively, under the doctrine of Anshun estoppel. The FCC had dismissed the proceeding summarily, finding that the applicant had no reasonable prospect of success.

The applicant, Mr Vakras, alleged that the respondent, Mr Cripps, had placed disclaimers on his artworks because Mr Vakras had used Greek script in some of the materials accompanying his artworks, which constituted unlawful racial discrimination. The FCC had to determine whether the applicant had a reasonable prospect of success in his claims. The court also needed to consider whether the applicant had unreasonably failed to bring his causes of action in the proceeding in the Supreme Court of Victoria.

The court found that the applicant's claims were not well-founded. The FCC held that the applicant had no reasonable prospect of success in his racial discrimination claim because the evidence showed that the disclaimers were placed due to concerns about the potential anti-Palestinian and racist interpretation of the written materials, not because of the applicant's race. The court also found that the applicant had unreasonably failed to bring his moral rights claim and Australian Consumer Law claim in the proceeding in the Supreme Court of Victoria. The doctrine of Anshun estoppel applied, preventing the applicant from raising those claims in the Federal Court.

The court dismissed the application for leave to appeal and noted that the applicant had not identified any error of law or fact that would warrant the grant of leave to appeal. The court held that the applicant had no reasonable prospect of success in his claims and that it would not be just to grant leave to appeal.

The final order was that the application for leave to appeal filed on 22 April 2016 be dismissed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for leave to appeal filed on 22 April 2016 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondents applied for summary dismissal of the proceeding pursuant to the Court’s powers under s 17A of the FCC Act or, alternatively, under the doctrine of Anshun estoppel. The FCC decision The FCC summarily dismissed the whole proceeding on the application of the respondents.The racial discrimination claim In his application before the FCC, Mr Vakras had claimed that Mr Cripps had posted the disclaimer because Mr Vakras had used Greek script in some of the materials accompanying his artworks and this constituted unlawful racial discrimination. The application (which Mr Vakras had prepared himself) stated that:Discrimination occurred in the provision of goods and services in June 2009. However, at that time this happened, those actions were claimed to have been done for other reasons that bore no rational relationship to what they were claimed to be done for.In March 2014 it was finally admitted that the actions taken against me were because I am Greek by race.…[Mr] Cripps' 2009 claim [as to the reason for posting the disclaimers] was that criticism of religious doctrines and religious values (of Judaism, Christianity, Islam and Zoroastrianism) which was the subject of some of my work could be supportive of Israel, could be anti-Palestinian, and that this was therefore racist. Neither Israel nor Palestine are mentioned, referenced, or alluded to, and the subjects of Israel and/or Palestine had nothing to do with anything written or exhibited for this claim to have any basis. It was alleged that:In March 2014 Cripps admitted he did these acts because my art manifested my being Greek. This Greekness took the form of my use of Greek words to explain Greek myths in which the Greek words used were an intrinsic part of the piece(s).In March 2014, the explanation given for Cripps' actions was: that I, Greek of race, used Greek words! At [16] the FCC noted that:It is … clear that it is Mr Vakras' understanding that the way Mr Cripps ran his case in the Supreme Court suggested that some of the Greek phrases he had used might require translation. That appears to give rise to the assertions that Mr Cripps has now admitted his racist motivation for the events of 2009 (something that is denied by the respondents). The respondents’ application for summary dismissal was supported by an affidavit sworn by Mr Cripps. At [21] the FCC referred to the following paragraphs in that affidavit: 8.During the course of the exhibition, [Mr Vakras’] artworks were accompanied by written materials which were in convoluted English language, and also in Greek. I was concerned that the written materials could be interpreted as being anti-Palestinian and racist. An example of such written material was an essay accompanying [Mr Vakras’] artwork entitled "Secular Muse" as contained in [the] catalogue for the art exhibition.Now produced and shown to me and marked with the letters “RRC-1” is a copy of the essay accompanying [Mr Vakras’] artwork entitled "Secular Muse".9.I requested [Mr Vakras] to put the explanation of the artwork in simple English but disagreement ensued between us.10.As a result of [Mr Vakras’] reluctance to explain his artwork in simple English after being requested to do so, I had no choice but to put up disclaimers adjacent to the artworks, which was not uncommon, to disassociate myself and my Gallery from the views and opinions expressed by [Mr Vakras’] artworks.Now produced and shown to me and marked with the letters “RRC-2” is a copy of the disclaimer.

Ratio Decidendi

Legal Principle Established

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