Vakras v Federal Court of Australia & Ors

[2017] HCATrans 142

[2017] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M3 of 2017

B e t w e e n -

DEMETRIOS VAKRAS

Plaintiff

and

FEDERAL COURT OF AUSTRALIA

First Defendant

FEDERAL CIRCUIT COURT OF AUSTRALIA

Second Defendant

ROBERT RAYMOND CRIPPS

Third Defendant

REDLEG MUSEUM SERVICES PTY LTD

Fourth Defendant

Application for order to show cause

NETTLE ACJ

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 12 JULY 2017, AT 2.14 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   By application for order to show cause dated 4 January 2017, the applicant seeks mandamus and certiorari to quash orders of the Federal Circuit Court of Australia (Judge Burchardt) made on 27 January 2016 in proceeding MLG2122 of 2014[1] that the applicant’s application for remedies under the Racial Discrimination Act 1975 (Cth) and associated relief as against Robert Raymond Cripps and Redleg Museum Services Pty Ltd be summarily dismissed pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and under the doctrine of Anshun estoppel, and to quash orders of the Federal Court of Australia (Davies J) made on 15 August 2016[2] dismissing the applicant’s application for leave to appeal from the judgment and orders of the Federal Circuit Court.

[1]   Vakras v Cripps [2016] FCCA 20.

[2]   Vakras v Cripps [2016] FCA 955.

This matter first came on for hearing before me on 30 June 2017.  At that time, I was of the mistaken belief that, on 6 April 2017, Keane and Edelman JJ had dismissed the applicant’s application for special leave to appeal from the orders of the Federal Court of Australia (Davies J) made on 15 August 2016, which are the subject of this application for order to show cause.

In part for that reason, but also because I considered that the applicant had not identified an arguable basis to doubt the correctness of the orders of the Federal Court or the orders of the Federal Circuit Court (Judge Burchardt), I was inclined to dismiss the application.  As the applicant then explained to me, however, the application for special leave to appeal which was dismissed by Keane and Edelman JJ on 6 April 2017 pertained to orders of the Court of Appeal of the Supreme Court of Victoria of 24 July 2015[3] and 4 September 2015[4] dismissing in part appeals from judgments and orders of Kyrou J in other but related proceedings (“the Supreme Court proceedings”)[5].  Accordingly, at that point, I determined to vacate the orders I had proposed be made and to reserve my decision to enable closer examination of the reasons for judgment of Judge Burchardt and Davies J.

[3]   Vakras v Cripps [2015] VSCA 193.

[4]   Vakras v Cripps [2015] VSCA 234.

[5]   Cripps v Vakras; Vakras v Cripps [2014] VSC 279.

Having now had the opportunity to read their Honours’ respective reasons again, I remain of the view that the applicant has not identified an arguable basis to doubt the correctness of Judge Burchardt’s or Davies J’s reasons for judgment or their Honours’ orders.

In the course of oral submissions before me, the applicant argued that Judge Burchardt was wrong in holding that the applicant was estopped by way of Anshun estoppel from advancing a claim under s 46PO of the Australia Human Rights Commission Act 1986 (Cth) because the applicant did not advance that claim in the Supreme Court proceedings.  But, evidently, that is not the basis on which Judge Burchardt held that the claim would fail.  Rather, his Honour concluded that the applicant was estopped by issue estoppel the result of factual findings made by Kyrou J in the Supreme Court proceedings[6]; and further, and in any event, even if the applicant were not so estopped from asserting the claim, the claim did not enjoy a reasonable prospect of success[7].

[6]   Vakras v Cripps [2016] FCCA 20 at [42].

[7]   Vakras v Cripps [2016] FCCA 20 at [44].

The applicant also contended that Judge Burchardt erred in holding that the applicant was estopped by way of Anshun estoppel from advancing a claim under the Copyright Act 1968 (Cth) for infringement of the applicant’s moral rights in essays at one time displayed in a gallery conducted by the respondents, and in relation to which Cripps and further or alternatively Redleg had erected signs in the gallery stating that the essays did not express the views of the gallery. The applicant argued that the doctrine of Anshun estoppel did not apply because the Supreme Court lacked jurisdiction to determine the claim and, therefore, that the applicant could not have advanced the claim in the Supreme Court proceedings.

That submission is misconceived.  As Judge Burchardt held[8], and Davies J affirmed[9], there is no question that the Supreme Court had jurisdiction under s 39(2) of the Judiciary Act 1903 (Cth) – as relevantly confirmed in relation to claims under Part IX of the Copyright Act by s 195AZGH(1) of that Act – to entertain the applicant’s moral rights claim.  As Davies J stated[10], the fact that the Federal Court had exclusive appellate jurisdiction under s 195AZGH(3)(a) in no way detracts from that conclusion. Nor is it affected by the stipulation in s 203 of the Copyright Act that a Supreme Court exercising jurisdiction in relation to a moral rights claim has no power to grant interlocutory relief or an account of profits that it would not have apart from the Copyright Act. The Supreme Court has ample power to grant injunctive relief and relief by way of an account of profits in the exercise of its inherent equitable jurisdiction under s 85 of the Constitution Act 1975 (Vic) and s 37 of the Supreme Court Act 1986 (Vic). Further, and apart from the issue of Anshun estoppel, Judge Burchardt found[11] that the moral rights claim was without arguable foundation and, therefore, without any reasonable prospect of success:  a conclusion with which, with respect, I entirely agree.

[8]   Vakras v Cripps [2016] FCCA 20 at [53]‑[54].

[9]   Vakras v Cripps [2016] FCA 955 at [40].

[10]  Vakras v Cripps [2016] FCA 955 at [40].

[11]  Vakras v Cripps [2016] FCCA 20 at [46]‑[49].

Finally, it needs to be mentioned that the applicant contended in his written submissions, although not in oral argument, that Judge Burchardt was in error in holding that the applicant was estopped by Anshun estoppel in relation to his claim of misleading and deceptive conduct under the Consumer Law, because Judge Burchardt had of his Honour’s own motion applied Anshun estoppel in relation to the misleading and deceptive conduct claim and thus not afforded the applicant an opportunity to make submissions in opposition to that conclusion.

That contention seems unlikely because Judge Burchardt refers in his reasons for judgment to the submission of counsel for Cripps and Redleg that the applicant was estopped by Anshun estoppel from prosecuting the claim[12].  But even if, as appears more likely, the applicant did not understand what was meant by Anshun estoppel, I am not persuaded that his failure to comprehend it could have made any difference.  It is clear from the applicant’s written materials that he does now understand what is meant by Anshun estoppel and it is clear that his complaint is that he should not have been held so estopped because it only became apparent to him in the course of evidence in the Supreme Court proceedings that Cripps and Redleg had procured him to enter into a contract to exhibit in their gallery by means of misleading and deceptive conduct.  The reason it makes no difference is that, if that were so, there was nothing to prevent the applicant amending his Supreme Court proceedings to add the misleading and deceptive claim as soon as it became apparent (as he says it did) that Cripps’ and Redleg’s conduct was misleading and deceptive.

[12]  Vakras v Cripps [2016] FCCA 20 at [26].

The application is dismissed with costs.

AT 2.14 PM THE MATTER WAS CONCLUDED