In June 2009, two surrealist artists, Demetrios Vakras and Anne Raymond hired out gallery space at Guildford Lane Gallery for a 2-week exhibition. The operator of the gallery was Redleg Museum Services Pty Ltd and the owner was Raymond Cripps, a Vietnam veteran who returned in 1969 and had worked his way into the arts transportation business with his brother.  His brother worked for the National Gallery of Victoria. In 2008, Cripps and his brother opened the Gallery, having spent around $1 million fitting it out.

This painting was not done by the defendants.

The exhibition opened, but it is fair to say that the parties were not happy. In a nutshell, and doing my best not to oversimplify what was obviously a complicated, multi-dimensional war of a trial, each thought that the other was a racist. On the one hand, Cripps thought that the artists’ works could be construed as racist, blaming Palestinian people for the situation in Israel. The artists were affronted by this and claimed that their works criticized four religions. The parties argued about the situation in Israel. Highly volatile issues were involved: anti-semitism, whether Islam was to blame, the Koran… This really became the source of the entire dispute in this case.  Within the context of this fundamental, intractable dispute, came a defamation trial before His Honour Justice Kyrou and then a lengthy judgment.

Back to the exhibition, after it ran its course, the artists sued Cripps for breach of contract in a VCAT proceeding, seeking payment of around $13,000.  They also used their two websites to upload material that attacked Cripps. For instance, on 21 August 2009, Vakras uploaded an article onto his website entitled “Exhibition in 2009 Human Transhumanist: the fiasco of Guildford Lane Gallery of Melbourne the extended version”. The article ran for 7 pages, if printed out, and included text, photos and images. Among it, were the following words:

 “… There are several words which I can describe Cripps: poisonous, vile, repellent, malignant, racist, liar, bellicose, bully, stupid … Cripps is a self-confessed racist … He is a manifestation of the new left who have adopted sentiments Hitler expressed in Mein Kampf, but who believe that, though theirs and Hitler’s sentiments are the same, their racisim is a ‘justifiable’ one.”

Cripps and his company then sued the artists in defamation and the trial was heard over 2 weeks in March 2014.

Many defences were argued, and in June, Justice Kyrou delivered a tour de force, epic 789 paragraph judgment. His Honour found that Vakras’ website carried the following imputations where the defences failed [667]:

1. the plaintiff is a disgraceful individual who is to be avoided assiduously;
2. the plaintiff engaged in conduct which inhibited the Artists’ capacity to promote the Exhibition, causing it to fail, but the plaintiff still made a profit from the Exhibition:
3. the plaintiff is a racist who holds views that are similar to those of Adolf Hitler;
4. the plaintiff is a bellicose bully;
5. the plaintiff’s pattern of intimidating behavior has left other artists reticent to describe publicly their own negative experiences with him;
6. the plaintiff has sexually harassed volunteers and staff at the Gallery and unless he is stopped, he will continue to do so.

Anne Raymond also published her own website. His Honour found that this second website carried the following imputations where the defences failed [745]:

1. as the operator of the Guildford Lane Gallery, the plaintiff has repeatedly engaged in behavior that destroys the exhibitions of the artists who exhibit their works there;
2. as the operator of the Guildford Lane Gallery, the plaintiff has repeatedly engaged in behavior that sullies the reputations of the artists he represents;
3. the plaintiff, a professional Gallerist, ceases to support and actively sabotages the exhibitions of artists who exhibit their works at the Gallery once he can no longer make any further profit from them;
4. the plaintiff, in his arts transportation business, is universally despised;
5. the plaintiff, by reason of his ignorance of art, is not a fit and proper person to be a gallerist.

The main reason there was no defence was because His Honour rejected the

Victorian Supreme Court

evidence of the defendants. Putting to one side the allegations about Cripps’ conduct/capabilities as a gallerist, His Honour made a number of factual findings on the racism issue arising from two meetings that took place on 18 June 2009 and 24 June 2009. His Honour found that:

• Cripps did not say that he disliked Jews;
• Cripps did say that he opposed Israeli policy in the Palestinian areas, but this was not anti-semitism;

As a result, the artists’ websites that likened Cripps to Hitler were not based on truth. Once that finding was made, this was a serious defamation. It is fair to say that for the defendants, the judgment did not read well. Their evidence was comprehensively rejected by the judge and after that, it was never going to end well for them.

His Honour also relied on the grapevine effect and launched into a number of substantial awards of damages, namely:

• As against Vakras: $250,000, plus a further $100,000 for aggravated damages;
• As against Raymond: $50,000, plus a further $20,000 for aggravated damages.

This is the highest total of damages in Victoria since the cap was introduced. Whether the artists can pay or not, well that might be another thing… although it might help that on the contract claim, the artists were awarded $3.15…

In any event, it appears that appeal papers have been lodged. But what was the moral of the story? If anything, it appears to be this: if you are going to write that someone has similar views to Hitler, you might want written evidence of that before doing so, just a thought….

First of all, a big mea culpa from myself. Yes, it is true that my efforts to maintain a proper updating of this website across 2014 have ranged from abysmal to downright pathetic, but 2015 is a new year, full of promise, hope and wide-ranging resolutions.

One of which is to get back to writing up reasonably prompt casenotes when interesting cases are handed down. This will mean putting to one side the many time commitments consumed by the demands of my own practice, child-rearing, swimming, fixing the broken door, avoiding organic watermelon and re-watching the DVD of Hawthorn’s 2014 premiership glory.

Anyway, the resolution starts with a summary of the most prominent and important cases of 2014. While in the UK, the new Defamation Act 2013 commenced, in Australia, there were a number of large verdicts arising from publications on the internet, as well as a number of significant interlocutory judgments which involved injunctions, strike out applications and claims for loss of business.

The following cases were noteable in 2014:

1. Cripps v Vakras [2014] VSC 279: a successful claim by a gallery owner against two artists arising from publications on two webpages that asserted that, among other things, the plaintiff held views similar to Hitler. Justice Kyrou awarded him $420,000 in all.
2. Lower Murray Urban and Rural Water Corporation v Di Masi & Ors [2014] VSCA 104: an appeal to the Victorian Court of Appeal against judgments made by Justice Kaye in the plaintiff’s favour in a 2013 trial that ran for 22 days in Mildura;
3. Bleyer v Google Inc [2014] NSWSC 897: an application by Google Inc to permanently stay a case, partly on the grounds that the costs that would be involved in running the case would be disproportionate to the remedy sought by the plaintiff.
4. Polias v Ryall & Ors [2014] NSWSC 1692: a poker player that won $340,000 in damages for publications made by a number of other poker playing defendants on Facebook and in oral statements.
5. Moran v Schwartz Publishing Pty Ltd & Anor [2014] WASC 334: an urgent claim brought by a person seeking to prevent the publication of a book relating to an unsolved murder from 2005.
6. North Coast Children’s Home Inc & Ors v Martin [2014] NSWDC 125: successful claims made a foster care home, its manager and CEO against a former foster carer for publications on Facebook and in email.
7. Setka v Abbott & Ors [2014] VSCA 287: an appeal by a plaintiff to the Victorian Court of Appeal in respect of how the defendants had pleaded a fancy type of truth defence.
8. Dabrowski v Greeuw [2014] WADC 175:  a claim for damages by a man against his estranged former wife for publications on Facebook.

So for the first part of my 2015 resolution, these will be done. Then all I have to do is watch less T20 cricket …