Artists’ appeal upheld, record verdict set aside and re-trial ordered: Vakras v Cripps [2015] VSCA 193

In 2014, a gallery owner, Raymond Cripps was awarded a record $420,000 defamation verdict in the Victorian Supreme Court. The verdict was made by His Honour Justice Kyrou against two surrealist artists, Demetrios Vakras and Lee-Anne Raymond. They held an exhibition with Cripps’ gallery in 2009 and were so unhappy about their experience that they each published websites that were critical of Mr Cripps. He sued them in defamation.

There were three publications and the websites were found to be defamatory. The most significant imputation that was found in favour of the plaintiff related to a comparison by Mr Vakras of Mr Cripps with Hitler. It was referred to as “the Hitler Imputation” and no doubt that it was a critical foundation in the verdict of $350,000 damages for Mr Cripps as against Mr Vakras. The remaining $70,000 was awarded to Mr Cripps as against Ms Raymond for a separate website publication which did not mention Hitler, but was otherwise critical of Mr Cripps and his ability and actions as a gallery owner.

The artists appealed to the Victorian Court of Appeal, and before Chief Justice Warren and Appeal Justices Ashley and Digby, they were largely successful. The damages verdict against Mr Vakras was set aside and a new trial was ordered. However, the damages verdict as against Ms Raymond remained in tact.

Victorian Supreme Court
Victorian Supreme Court

Certain meanings were pleaded by Mr Cripps to have been conveyed by the three publications complained of, and the Court of Appeal noted that the trial judge was entitled to find for the plaintiffs on a meaning which was not pleaded, but was a permissible variant, so long as it was “not substantially different from and not more injurious than” the pleaded meaning. However, the problem for Mr Cripps was that the trial judge went further and in six instances, found that the publications conveyed defamatory imputations that were neither pleaded by the plaintiff, nor by the defendant. Further, the judge gave no indication that he might make a finding on his own meanings [31].

Counsel for Mr Vakras claimed that three of the meanings were outside the plaintiffs’ pleaded case and outside the meanings pleaded by the defendants, including the Hitler Imputation. This infected many of the imputations that were run and won by the plaintiff at trial … but were then lost on appeal.

There were a number of imputations pleaded in the case against both defendants, including that Mr Cripps:

  • was a disgraceful individual (the Disgraceful Imputation;
  • was a bellicose bully (the Bully Imputation);
  • made a profit from the exhibitions, and deliberately inhibited the artists’ capacity to promote the exhibition and caused it to fail (the Profit Imputation);
  • had a pattern of intimidating behaviour that left artists too fearful to describe their own negative experiences to the public (the Intimidating Imputation);
  • sexually harassed volunteers and staff at the gallery (the Harassment Imputation); and
  • repeatedly destroyed exhibitions of artists who exhibit with his gallery (the Destruction Imputation).

But it seems that the Hitler Imputation was the most significant. Once that was overturned on appeal, it seemed that a re-trial became a formality.

The Hitler imputation

Turning to the publication itself, the Court of Appeal referred to a passage in Mr Vakras’ publication that began by describing Mr Cripps as a self-confessed racist and that he was a “manifestation of the new-left who have adopted the sentiments Hitler expressed in Mein Kampf, but who believe that, though theirs and Hitler’s sentiments are the same, their racism is a `justifiable’ one.” Mr Vakras had also hyperlinked from his website to an article: “Hitler’s disciples: the new racism of the political left”.

The plaintiff pleaded that the first publication by Mr Vakras carried the meaning that: Mr Cripps is a racist who has embraced the view of National Socialism [133]. The defendants then pleaded that it meant that: Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler, which they asserted was true [134].

In considering this, the trial judge asked: “Is Mr Cripps a racist or an anti-semite?”, and answered in the negative. He concluded that criticism of Israel did not mean that a person was necessarily anti-semitic.  The trial judge also had regard to evidence from other people that Mr Cripps was not a racist and did not hate Jews, and then concluded that Mr Cripps did not say what the defendants attributed to him in disputed conversations with the artists on 18 and 24 June 2009. Credit was a big part of the findings in relation to those conversations.

The trial judge made all sorts of findings on the credibility of the parties and they were largely adversely made against the defendants. But the Court of Appeal did not feel the need to address those because the resolution of the appeal did not require it [83]. However, it was noted by the Court of Appeal that the trial judge made findings that the defendants had deliberately lied in their evidence, even though they were not even cross-examined on that, no final submission was ever made to that effect and the trial judge made those findings without any indication at trial that he might do so [76].

Back to the Hitler Imputation, despite what the parties pleaded, the trial judge found that the sting of this imputation was that: Mr Cripps was a racist who condoned the atrocities that Hitler committed based on his views that the Aryan race was superior to all other races and that Jews should be exterminated [142].

Counsel  for Mr Vakras submitted that such an imputation did not arise and that the credit findings which the trial judge made had also led him into error. The Court of Appeal accepted those submissions [149].

At [150], the Court of Appeal unpacked Mr Vakras’ first publication and concluded that it must have been evident that he had embarked on a “philosophical exercise” with a “chain of reasoning” and was as follows:

The thesis – whether or not it was logical, attractive or correct – was not difficult to understand, as the reader would see. It went this way: (1) Hitler resorted to Biblical text to justify his racial exterminations – specifically, of the Jews. (2) Muslim Palestinians who kill Jews justify what they do by resort to text in the Koran; (3) the common feature of the killing of Jews by Hitler and of Jews by Muslim Palestinians is justification by resort to religious texts; (4) `new-left Nazis’ who support Palestine, who regard the Palestinians as oppressed by the Jews, and do not disapprove the killing of Jews by Muslims, are racists. Their sentiments are the same as Hitler’s, but they consider their racism justifiable; and (5) for Cripps, the killing of innocent Jews by Muslim Palestinians was justified. Thus, he was a racist, a manifestation of `new-left Nazis”.

The Court of Appeal found that this was what was imputed. So the meaning was not that Mr Cripps condoned Hitler’s atrocities based on his Aryan race superiority and the trial judge made an error in finding that. There were then consequences from that error. The trial judge found a meaning that went beyond the plaintiff’s case, and it also led to the truth defence being considered on a false basis. This then meant that the damages verdict had to be set aside and a new trial ordered [151-155].

Other issues

There were several other imputations fought over and other errors found, but really, once the error was found in relation to the Hitler imputation, the matter always had to be remitted for a new trial. This was clearly the most serious and probably the most significant basis of the fight between the parties.

Otherwise, the Court of Appeal concluded that the trial judge was correct in rejecting the defendants’ qualified privilege defence [91], even though the artists had a moral or social duty to inform other artists who might have been considering exhibiting at the gallery about Mr Cripps, and those artists had a reciprocal interest in receiving the information [339]. But the publication by the defendants on websites was to the world at large, they were not specialised types of websites and therefore not protected by qualified privilege [344, 346].

The Court of Appeal also dismissed the appeal by Ms Raymond in relation to damages awarded against her in relation to other imputations.

All in all, the Court of Appeal ordered a new trial on two of the five causes of action, including Mr Cripps’ action against Mr Vakras with respect to the first article [112]. In all:

  • Mr Vakras’ appeal against the judgment in favour of Mr Cripps was allowed and judgment set aside.
  • On the first article, there would be a re-trial of the “profit” and “Hitler” imputations and the plaintiff could re-plead on the “disgraceful imputation
  • On the second article, there would be a re-trial of the “intimidating” imputation and if the plaintiff was allowed to re-plead, on the “harassment” imputation.
  • Raymond’s appeal  against judgment in favour of Cripps was dismissed
  • Costs orders were set aside.

So the matter will return to the Supreme Court for another trial. Maybe this will be the Victorian Supreme Court’s answer to the Gacic proceeding in NSW that went for a decade…