Plaintiffs v Defendants

DEFAMATION - Publication on internet - Judicial notice of use of search engines such as Google and Bing to increase instances of publication.

DEFAMATION - Common law defence of justification - Elements of defence.

DEFAMATION - Common law defence of fair comment - Elements of defence - Whether management of a gallery open to the public is a matter of public interest - Whether opinion must be one that an honest person might reasonably form - Whether defendant must provide particulars of facts on which comment is based - Test of malice.

DEFAMATION - Common law defence of qualified privilege - Elements of defence - Test of common duty or interest - Whether defence available where defamatory material published on generalist website as distinct from specialist website - Whether defence available for defamatory statements concerning management of art gallery open to public - Whether defence available for statements on internet in reply to verbal attack in the presence of attendees at art gallery - Test of malice.

DEFAMATION - Statutory defences of justification and honest opinion - Defamation Act 2005 ss 25, 31.

DEFAMATION - Damages - Common law principles - Application of 'eggshell skull' principle - Grapevine effect - Mitigation of damages for prior bad reputation of plaintiff - Mitigation due to provocation - Recovery by companies.

DEFAMATION - Damages - Statutory cap - Effect of statutory cap where there are multiple plaintiffs - Whether statutory cap requires scaling of damages - Mitigation where multiple publication of similar matter - Defamation Act 2005 ss 35, 38.

DEFAMATION - Damages - Aggravated damages - Whether timing of aggravating conduct affects application of statutory damages cap - Conduct of defendant that is improper, unjustified and lacking in bona fides - Further damaging publications by defendant - Unjustified maintenance of defences - Failure to remove defamatory material from internet - Relevance of defendant's motives - Whether amount awarded for aggravated damages should be separately identified - Defamation Act 2005 ss 35, 36.

1 This judgment concerns two separate proceedings that were heard together.[1] The parties are Demetrios Vakras and Lee-Anne Raymond, who are artists and long-term domestic partners (collectively the 'Artists'), Redleg Museum Services Pty Ltd ('Redleg'), which operated the Guildford Lane Gallery ('Gallery') and Robert Cripps, Redleg's sole director, company secretary and shareholder.

2 In one proceeding ('Contract Proceeding'), the Artists have sued Redleg and Mr Cripps alleging breaches of a contract for the hiring of the Gallery by the Artists to exhibit their artwork in mid-2009 ('Exhibition'). The Artists commenced the Contract Proceeding in the Victorian Civil and Administrative Tribunal ('VCAT') on 7 August 2011 ('VCAT Proceeding'). The VCAT Proceeding was transferred to this Court on 18 May 2012.

3 In the other proceeding ('Defamation Proceeding'), Mr Cripps and Redleg (collectively the 'Defamation Plaintiffs') have sued the Artists alleging that two articles that were published by Mr Vakras on his website, www.vakras.com ('Mr Vakras' website'), and a third article that was published by Ms Raymond on her website, www.leeanneart.com ('Ms Raymond's website'), were defamatory of the Defamation Plaintiffs. The Defamation Proceeding was commenced on 1 April 2011.

4 The first article that is the subject of the Defamation Proceeding was uploaded on Mr Vakras' website on 21 August 2009 and is headed '[E]xhibition in 2009 HUMANIST TRANSHUMANIST: the fiasco of Guildford Lane Gallery of Melbourne the extended version' ('First Vakras Article'). This article is accessible via Mr Vakras' website or directly from the uniform resource locator ('URL') www.vakras.com/

5 The subject matter of the First Vakras Article is the Artists' unhappy experience in relation to the Exhibition. The article, when printed, extends over seven pages[2] and comprises text, photographs, images and 'screenshots' of internet items which are presented in framed 'boxes'. It also contains seven hyperlinks embedded in the text.[3] The First Vakras Article is set out in Appendix 1.[4]

6 The First Vakras Article is very critical of Mr Cripps. As can be seen from Appendix 1, the article includes the following:

Guildford Lane Gallery is run by the toxic Robert Cripps. AVOID THIS GALLERY ASSIDUOUSLY! ... There are several words with which I can describe Cripps: poisonous, vile, repellent, malignant, racist, liar, bellicose, bully, stupid. Cripps also runs Redleg a transporter of art. Can you trust Cripps' Redleg? ...

Cripps is a self-confessed racist [the new-left Nazis]. He is a manifestation of the new-left who have adopted the sentiments Hitler expressed in his Mein Kampf, but who believe that, though theirs and Hitler's sentiments are the same, their racism is a 'justifiable' one [new-left Nazis].[5]

7 The second article that is the subject of the Defamation Proceeding is the same as the First Vakras Article, save that it contains additional text under a new heading 'Addendum 2 April 2011'. That addendum was added on 2 April 2011 and I will refer to it as the 'Second Vakras Article' or the 'Addendum'. The Addendum is set out in Appendix 2.[6] As can be seen from Appendix 2, the Addendum includes the following:

[Mr Cripps] has undertaken to claim that what I (and my co-exhibitor) write 'defames' him, as if whatever false reputation he might claim to have - which has been arrived at by bullying, badgering, and threatening legal action against others which has resulted in them remaining silent - is his [true] character ...

The experience of my co-exhibitor and I with Cripps was not one unique to our exhibition. A year after this disastrous exhibition I received the first of many emails we both received from others who suffered in their dealings with Cripps. To quote a small portion from this email: ...

I exhibited a show which is about Human rights ... and the gallery owner has done ... massive damage to my professional reputation ... Robert embarrassed the directors and executives as well ... Not only him being unreasonable on everything, he has been sexually harassing staffs and volunteers as well. How do I know? Because he's been telling it to his staffs every next day like he's done something awesome. I need to stop this and want to save poor girls who are volunteering for gallery assistant.

8 I will refer to the First Vakras Article and the Second Vakras Article collectively as the 'Vakras Articles'.

9 The third article that is the subject of the Defamation Proceeding was uploaded on Ms Raymond's website on 10 September 2009 and is headed 'Guildford Lane Gallery' ('Raymond Article'). It was subsequently updated on 26 May 2010, 6 June 2010 and 26 September 2010. The article is accessible via Ms Raymond's website or directly from the URL www.leeanneart.com/guildfordlanegallery.html.

10 The Raymond Article contains text, a photograph and an image. When printed, it extends to just over two pages.[7] The Raymond Article is set out in Appendix 3.[8] As can be seen from Appendix 3, the article includes the following:

It is time to out Cripps for what he is. If you have had a similar experience with this pariah of a man then let me know and I will post it to this page as a warning to other artists. Say NO to Guildford Lane Gallery under the steerage of Robert Cripps. Say NO to being abused and having your show destroyed and your reputation sullied ... By the way this man also runs Red Leg an arts transportation company, in this context I am aware that he is professionally avoided. Others without direct experience with Cripps are well aware of his reputation, he is, as reported to me, 'universally despised.'

11 The three articles ('Impugned Articles') remain on the Artists' websites. However, save for evidence that the Second Vakras Article has been modified, it is unclear whether the three articles are in the same form as that set out in Appendices 1, 2 and 3.

12 The Defamation Plaintiffs have pleaded a number of allegedly defamatory imputations in respect of the Impugned Articles. For convenience, the imputations that I have found are carried by the Impugned Articles are summarised in Appendix 6. That appendix contains a reference to the paragraph of the judgment which contains the relevant finding for each imputation.

13 In relation to the First Vakras Article, the most serious imputation is that Mr Cripps 'is a racist who holds views that are similar to those of Adolf Hitler'. In relation to the Second Vakras Article, the most serious imputation is that Mr Cripps 'has sexually harassed volunteers and staff at the Gallery and, unless he is stopped, he will continue to do so'.

14 The Artists deny that the Impugned Articles are defamatory. They dispute some of the imputations upon which the Defamation Plaintiffs rely and have pleaded their own imputations based on the principles in Polly Peck (Holdings) Plc v Trelford.[9] They rely on the defences of justification at common law and under s 25 of the Defamation Act 2005 ('Act'); fair comment at common law; honest opinion under s 31 of the Act; and qualified privilege at common law.[10]

15 It is common ground that Redleg is an 'excluded corporation' within the meaning of s 9(2)(b) of the Act and is able to sue the Artists in defamation.

16 For the reasons set out below, I have concluded that:

(a) In the Contract Proceeding Mr Vakras is entitled to damages of $2.83 and the Artists are jointly entitled to damages of $3.15; and

(i) Mr Vakras is liable to pay to Mr Cripps damages totalling $350,000 (inclusive of $100,000 for aggravated damages) and to Redleg damages totalling $15,000; and

(ii) Ms Raymond is liable to pay to Mr Cripps damages totalling $70,000 (inclusive of $20,000 for aggravated damages) and to Redleg damages totalling $15,000.

17 As this judgment is lengthy and contains many definitions and abbreviations, for convenience, I have set them out in Appendix 7.

18 Mr Cripps is 67 years of age. He left school in year nine and commenced an apprenticeship in fitting and machining and then toolmaking. He worked in various jobs until he was conscripted to serve in Vietnam in approximately 1966, and served until 1969. He was injured during combat and found his tour of duty very traumatic. After his military service, he worked as a technician in the sculpture department of the Caulfield Institute. Mr Cripps then worked in the architecture department of RMIT where he set up a workshop for model-making and assisted with the manufacture of student projects. He also ran a reprographic business for some time.

19 In the 1980s, Mr Cripps transitioned into arts transportation with some assistance from his brother, who worked at the National Gallery of Victoria. He registered a company called Redleg Group Pty Ltd for the arts transportation business. This was a different company from Redleg, the second plaintiff in the Defamation Proceeding. Mr Cripps gave evidence that he could not remember the precise date of registering Redleg but it was probably in the late 1980s.

20 In 2008, Redleg established the Gallery at 20-24 Guildford Lane Melbourne, having spent approximately $1 million to refurbish the four storey building. Redleg operated the Gallery on a commercial basis and hired out the space to artists, musicians and other persons for a fee. The Gallery hosted its first exhibition in 2008, exhibiting the artwork of the artists Nina Sellars and Stelarc ('Stelarc exhibition'). Mr Cripps was proud of the Gallery, saying that it had 'beautiful big spaces' and that he is 'very, very good' at what he does.

21 As at late 2008 and during the course of 2009, the Gallery had the following full-time and part-time staff: Ms Yolande Pickett (exhibitions manager), Ms Lian Low (assistant exhibitions manager), Ms Melanie Trojkovic (installation coordinator), Ms Stacy Jewell and Ms Sarah Webb. The Gallery was assisted by up to 20 volunteers. The volunteers were mainly students who attended the Gallery for around three hours per week to assist with exhibitions. Their tasks included greeting guests, answering questions, assisting the paid staff and attending the Gallery during its opening hours.

22 Mr Vakras was born in Melbourne in 1962. He enrolled in an Arts degree at Melbourne University. It is not clear whether he completed that degree. He has worked in a variety of jobs. He is a part-time, self-taught artist. He is an adherent of the surrealist school. Many of his paintings depict objects which are part human and part machine, with exposed bones and human tissue.

23 Prior to the Exhibition, Mr Vakras exhibited his artwork on approximately 10 occasions.[11] One of these was a solo exhibition. When asked to provide a summary of the artworks he has sold, Mr Vakras responded: 'It's going to be very short because it's not much ... I haven't sold very many works.' Prior to the Exhibition, he sold the copyright to one of his images for use on an album cover, four or five paintings for between $950 and $1,200, and eight to 10 digital prints.[12] Mr Vakras' evidence was that at each of his previous exhibitions he sold one or two paintings.

24 Ms Raymond was born in Melbourne in 1963. She met Mr Vakras in 1982 or 1983 and they have been in a domestic relationship since then. Ms Raymond is also a part-time artist and an adherent of the surrealist school. Many of her paintings depict naked women, some with exposed buttocks. In recent years, Ms Raymond has worked at Museum Victoria.

25 Prior to the Exhibition, Ms Raymond exhibited her artwork on approximately 10 occasions.[13] Two of these were solo exhibitions. She has sold a total of nine works for prices ranging from $950 to $1,800. Ms Raymond's evidence was that at her previous exhibitions, she sold one or two paintings. At one exhibition she sold three works. Under cross-examination Ms Raymond agreed that she had not sold all the works in any of her exhibitions, and stated that this is not her 'primary aim'.

26 In 2008, the Artists contemplated a joint exhibition of their artwork. They attended the Stelarc exhibition at the Gallery and were impressed by the Gallery space.

Negotiations for the hire of the Gallery by the Artists

27 In August 2008, the Artists completed an 'Exhibition Proposal' to exhibit their artwork on the first floor of the Gallery under the project title 'Human - Transhumanist - An Umbrella and Two Surrealists'. The proposal described the Artists as 'obscure Surrealists' and stated that their styles 'spark controversy'. The proposal was accepted by the Gallery in October 2008.

28 On 11 December 2008, Ms Raymond sent an email to Ms Pickett informing her that the Artists wished to produce a catalogue for the Exhibition and enquiring whether the Gallery used a preferred printer. On the next day, Ms Pickett responded to the effect that the Gallery did not use a printer.

29 On 2 January 2009, Ms Pickett sent an email to Ms Raymond setting out details of the proposed hire of the Gallery by the Artists from 16 June 2009 to 6 July 2009 for a fee of $3,465. The email described the duration of the Exhibition as '18 June - 5 July 2009' and the opening as '6pm Thursday 18 June'. The email described the 'space' as the entire first floor less the 'Open Studio' and attached a floor plan of the first floor. The email listed the items covered by the fee. One of the items was the Gallery's opening hours of 12 noon to 9.00pm Wednesday to Friday and 12 noon to 5.00pm Saturday to Sunday. The items did not include distribution of a catalogue. The email also listed items available at extra cost, including '[a]dvertisement design and booking for printed publications'.

30 The Artists met Mr Cripps and Ms Pickett at the Gallery on 23 January 2009 ('January 2009 Meeting'). The meeting is discussed at [106] to [114] below.

31 Following the meeting, there was an exchange of emails between Ms Pickett and Ms Raymond pursuant to which it was agreed that the proposed hiring of the first floor of the Gallery would also include the Open Studio. An additional fee of $165 per week would be paid, bringing the total fee to $3,960.

32 On 10 February 2009, Ms Pickett sent an email to Ms Raymond attaching an exhibition agreement. That agreement described the 'Hirer' as Ms Raymond and the title of the Exhibition as 'Human - Transhumanist - An Umbrella and Two Surrealists'. Ms Pickett re-sent the agreement on 17 March 2009 with a correction to the spelling of Ms Raymond's name.

33 It is common ground that Mr Vakras amended the exhibition agreement by adding his name as 'Hirer' and by substituting the title 'Humanist - Transhumanist - An Umbrella and Two Surrealists'. The Artists signed the agreement on 17 March 2009 and emailed a scanned version to Ms Pickett. Some of the formatting changed during the scanning process. It appears that these changes were accidental. Ms Pickett signed the scanned version of the agreement on behalf of the Gallery on 25 May 2009.[14] I will refer to the signed scanned version as the 'Hiring Agreement'.

34 Prior to the signing of the Hiring Agreement by Ms Pickett on 25 May 2009, she sent an email to Ms Raymond on 4 May 2009 in which she stated:

In terms of the publication Demetrios mentioned, unfortunately I do not have enough hours in the day to arrange for appropriate publications to be in stock for each exhibition. So if you wish to make it available I will have to leave that up to you to organise it.

35 The parties to the Hiring Agreement were Redleg (which was described as 'Gallery')[15] and the Artists (who were each described as 'Hirer'). The 'Gallery Space' which the Gallery agreed to provide for 'the use' of the Hirer was described as the first floor of the Gallery and the 'Hire Term' was described as 'from 9am Tuesday 16 June 2009 to 9pm Monday 6 July 2009'.

36 Clause 2.a of the Hiring Agreement required the Hirer to pay a deposit of $1,980 on or before 16 March 2009 and a further amount of $1,980 on or before 15 May 2009. It is not in dispute that these amounts - which totalled $3,960 - were paid on time.

37 Pursuant to cl 2.b of the Hiring Agreement, the Artists paid a further amount of $500 'as a surety' ('Bond'). The clause provided that this amount 'is refundable at the end date of the Hire Term subject to the terms under Clause 9.a. and 9.b. of this Agreement.'

38 Clause 4.c of the Hiring Agreement described one of the Gallery's responsibilities as follows: 'ensures that the Hirer has access to the Venue from 8am until 10pm 7 days a week during the Hire Term.' Although the word 'Venue' was not defined, the context indicates that it was used synonymously with 'Gallery Space'.

39 Clause 5 of the Hiring Agreement set out the Hirer's responsibilities. It relevantly provided that the Hirer must:

1. clean and tidy the Venue at the end of the term of the hire and use its best efforts to maintain the Venue in the condition it was in at the commencement of the term of the hire, subject to usual wear and tear;

1. allow the Gallery and its employees, agents and licensees all reasonable access to the Venue;

1. not attach in any way to walls, doors, glass, lifts, stairwells, floors, furniture, historic features or fittings in or around the Venue any nails, screws, adhesive tape, signs or other item without the prior consent of the Gallery; ...

40 Clause 6 of the Hiring Agreement included the following warranties and indemnities:

1. The Hirer warrants that ... the event does not contain any defamatory material to the Hirer's knowledge, and the Hirer indemnifies the Gallery against any and all claims, costs, actions and damages brought or suffered as a result of breach of this warranty.
2. The Hirer warrants that ... the event does not contain any illicit, dangerous, illegal, unethical or seditious material or content to the Hirer's knowledge under the Hire Agreement, and the Hirer indemnifies the Gallery against any and all claims, costs, actions and damages brought or suffered as a result of breach of this warranty.

41 Clause 9 of the Hiring Agreement was headed 'Termination'. It relevantly provided:

1. At the end date of the Hire Term the Hirer will be refunded the $500 surety provided that the Gallery Space is returned to its original condition.
2. The Gallery may use some or all of the $500 surety to recover costs incurred by the Hirer if the Hirer:

i. fails to return the Gallery Space to its original condition.

1. is more than 14 calendar days late in making payment under Clause 2 of this Agreement.
2. is in breach of any of their obligations under Clause 5 of this Agreement.

1. If a party is in breach of any other obligations under this agreement, the other party may give the party at fault written notice of the breach and give 7 calendar days within which to remedy the breach. If the breach remains un-remedied the parties must attempt to resolve the dispute in accordance with Clause 10. If the parties are not able to resolve the dispute, under Clause 10, the non-breaching party may terminate the agreement.

42 Clause 10 of the Hiring Agreement set out a dispute resolution procedure for disagreements under that agreement. The first step in the procedure was for the aggrieved party to 'tell the other party about the dispute in writing' and the second step was for the parties to meet within 14 calendar days and 'take all reasonable steps to try and solve it'. If the dispute was not resolved by direct discussions, the third step was for the parties to submit the dispute to mediation. If the dispute was not resolved at mediation, the next step was arbitration or litigation. Clause 10.e provided that the parties 'must continue to perform their respective obligations under this agreement even if they disagree.'

43 Clause 11 of the Hiring Agreement included the following 'General' provisions:

1. [T]he Gallery is not the Hirer's Agent and is not entitled to a commission for the sale of the Hirer's work, nor is the Gallery responsible for the production, sale, administration, marketing or direct agency of the Hirer.

1. [T]his Exhibition Agreement is the entire agreement between the parties about its subject matter. Any previous understandings, agreement, representation or warranty relating to this subject matter is replaced by this agreement and has [no] further effect.

1. This Agreement may only be changed in writing signed by all parties.

Events prior to the opening night of the Exhibition on 18 June 2009

44 On 29 May 2009, the parties agreed to a media release. The release included the statement that the Exhibition 'will be an unapologetic display of the surreal, the fantastic and symbolic with accompanying catalogue-manifesto.'

45 At the end of May 2008, Ms Pickett commenced three weeks leave and Ms Low assumed the role of acting exhibitions manager.

46 At 11.46am on 1 June 2009, Ms Raymond sent an email to Ms Low and Ms Trojkovic to inform them that the Artists planned to visit the Gallery 'by 5-5:30 ish' that day 'for a brief look at the space' and to 'drop off invitation postcards'. Ms Low responded by email at 2.29pm on the same day, stating: 'That's fine! Look forward to meeting you and Demetrios later today. I have let Robert know that you'll both be here, so he'll be here to meet you both as well.'

47 The proposed meeting on 1 June 2009 did not take place. The events that occurred between 5.00pm and 6.00pm on that day are in dispute and are discussed at [120] to [128] below.

48 At 6.23pm on 1 June 2009, Ms Raymond sent an email to Ms Low stating: 'No one was there to meet us so we left, Demetrios was there from about 5:15 and waited until I arrived about 20 mins? Another lady turned up as well expecting to be met.'

49 At 6.37pm on 1 June 2009, Ms Low replied to Ms Raymond by email in which she stated: 'We were waiting for you, but as the gallery is not officially open today, I was expecting you to call. I'm sorry if this wasn't clear, but there was a number outside the door as well for you to contact. Please let me know of a better time.'

50 At 10.32pm on 1 June 2009, Ms Raymond sent a further email to Ms Low in which she stated: 'oh well we seemed to be set with your last message. The lady who was waiting as well called but didn't get an answer. We will have to try again. Maybe this Wednesday or Thursday with gallery times this should be easier.'

51 At 12.26pm on 2 June 2009, Ms Low responded to Ms Raymond by email in which she proposed a meeting on Wednesday 10 June or Friday 12 June from 12.00pm onwards.

52 The Artists had access to each other's email accounts. Mr Vakras obviously read Ms Low's email of 12.26pm on 2 June 2009, as he responded by email 17 minutes later at 12.43pm on 2 June 2009 as follows:

you are a bona fide idiots.

We have already met robert. I don't care to meet you.

I merely wanted to look at the space to see how we might set up!!

SO WHY WEREN'T YOU THERE YESTERDAY?

I was there at 5:20.

You knew we were coming, AS IT'S IN THE EMAIL. So what's your explanation?

ANOTHER LADY WAS THERE WHO HAD PHONED UP.

53 At 6.19pm on 3 June 2009, Ms Low sent an email to Mr Vakras stating: 'Robert and myself were waiting for you at the Gallery until 6.30pm. There was a sign with the Gallery's phone number clearly positioned at the top of the Gallery door. We did not receive any phone call from you hence we didn't know you were downstairs.'

54 Mr Vakras responded to Ms Low by email at 7.23pm on 3 June 2009. He copied his email to Ms Jewell, Mr Cripps and Ms Raymond. Mr Vakras' email was in the following terms:

Lian you are a Liar.

There was no sign above the door, only the sign on the window for an application to permit you to serve alcohol. I do not have a mobile phone. I do not need a mobile phone. The other lady who turned up at around 5:25 did have a mobile phone. She phoned directory assistance to get your number which was not written anywhere outside. She was knocking on the fucking windows! There was no-one & no movement. You are dishonest. Stacy, we don't care for your floor talk.

55 At 8.51pm on 3 June 2009, Ms Raymond sent an email to Ms Low which included the following statements:

Hello Lian,

I was there too.

Demetrios might seem strong but honestly your story changes with each email. The lady who had arranged to meet you as well had tried calling. None of us saw any telephone number and we all checked we could only see operating hours with a note for 'by appointment' and of course the liquor licence notice. If banging on windows didn't help the lady telephoning didn't help ... (shrug)? What were we all meant to do?? ...

A simple apology that wires were crossed would have been appropriate and acceptable ...

Hopefully we can still get some sort of working exhibition up.

56 Ms Raymond attended the Gallery on 5 June 2009 and spoke to Mr Cripps about the events of 1 June 2009. The Meeting on 5 June 2009 is discussed at [129] to [131] below.

57 At 6.35pm on 5 June 2009, Mr Vakras sent an email to Ms Low and Mr Cripps, the first lines of which were: 'Hi Lian and Robert, Lee-Anne just called me. I apologise for our misunderstanding.' Ms Low responded by email on 8 June 2009, in which she thanked Mr Vakras for his email and stated that she was glad that they had been able to resolve the misunderstanding.

58 On 8 June 2009, Ms Raymond sent an email to Ms Trojkovic in which she stated that the Artists 'would like to use two small plinths or a small table on which to place "gallery copies" of the illustrated catalogue'. The email stated that this 'would provide for examples of the book and have information for visitors on how to obtain the catalogue.' Ms Trojkovic responded on 10 June 2009 stating that there 'should be no problem about using the plinths' and that she would check with Mr Cripps to make sure there were enough of them available.

59 On 12 June 2009, Ms Low sent an email to Ms Raymond stating: 'You are welcome to sell your catalogue on the Opening night, however, we [advise] that you have someone responsible to be handling the sale of the catalogue as the 18th of June will be a very busy night for Gallery personnel.'

60 The Artists installed their artwork in the Gallery on 15 and 16 June 2009 ahead of the opening of the Exhibition at 6.00pm on 18 June 2009. Appendices 1 and 3 contain a photograph depicting some of the artwork as it appeared during the Exhibition. There is a dispute about whether labels were affixed next to each painting. This dispute is discussed at [132] to [133] below.

61 It is not in dispute that some of the paintings were accompanied by essays written by Mr Vakras. According to him, each essay discussed themes depicted in the accompanying painting. The essay accompanying a particular painting was affixed to the wall next to that painting. An essay was affixed next to the painting titled 'Secular Muse' ('Secular Muse Essay'). That essay is set out in Appendix 5. As can be seen from that appendix, the Secular Muse Essay included the following:

This muse is in the middle of a bomb-cratered landscape. The figure attached to mechanical devices is assailed by war. The war is that of religion against a secular society. The religion that assails secular society today is Islam.

There are those who though ignorant of the Koranic basis of this assault condemn critics of that religion as expressing a personal unfounded bigotry, and then claim that acts of terrorism which have been committed in the name of Islam are by militant 'Islamist' 'radicals'. However, these militant acts by practitioners of that faith are not a radical departure of that faith based on a misunderstanding of the Koran.

The opening night of the Exhibition on 18 June 2009

62 The opening of the Exhibition took place from 6.00pm on 18 June 2009, on the first floor of the Gallery. Two other exhibitions had their opening night on the ground floor at the same time. The exhibitions were open to the public and no entry fee was charged.

63 The opening went well. Ms Raymond's superior at Museum Victoria, Ms Nancy Ladas, bought one of Mr Vakras' paintings for $450 ('Sale Proceeds'). The sale was organised by Gallery staff, who received payment on behalf of Mr Vakras. At one stage, Mr Cripps and Ms Ladas were both looking at one of Ms Raymond's paintings depicting a rear view of a naked woman. Ms Ladas identified herself as Ms Raymond's superior. Mr Cripps gave evidence that he said to her, 'Is that your lovely bottom?'

64 A conversation took place between Mr Cripps and the Artists at the Gallery at the conclusion of the opening of the Exhibition. The precise location and content of the conversation, and whether it was witnessed by any other person, are in dispute. The conversation is discussed at [134] to [163] below.

Events between 19 June 2009 and the conclusion of the Exhibition on 5 July 2009

65 On 20 June 2009, the Artists attended the Gallery to view the Exhibition. They did not see Mr Cripps there. After the Artists' visit, Mr Cripps instructed Mr Colin Reid, a volunteer at the Gallery, to source from the internet and to place at three locations on the first floor of the Gallery a disclaimer relating to the Exhibition ('Disclaimer'). The Disclaimer contained the following words:

Disclaimer

The management would like to state clearly that the views and opinions expressed in this exhibition are those of the artists, and not in any way representative of the views or opinions of the management, staff or volunteers of Guildford Lane Gallery.

66 Ms Raymond found out about the Disclaimer on 22 June 2009 from a work colleague. The Artists attended the Gallery at 4.15pm on 24 June 2009 for the purpose of photographing the Disclaimer. When they were on the first floor of the Gallery, Mr Cripps approached them and a conversation took place. The content of that conversation, and whether anyone witnessed it, are in dispute. The conversation is discussed at [164] to [195] below.

67 There is also a dispute about whether, in addition to the Disclaimer, there was a 'Warning' sign near the landing between the ground floor and the first floor. That issue is discussed at [175] to [179] below.

68 At 7.14pm on 25 June 2009, the Artists sent an email to Mr Cripps which stated the following:

The purpose for exhibiting work is for it to be seen for it to therefore be sold. It is ridiculous that upon our even entering the gallery yesterday, simply to photograph our works, that you shadow us simply to harangue us! Additionally, you can't order us to 'get out' of your gallery: we have paid for the space; our work is exhibited in the space; and we are within our rights to be in the space to promote our work. I am not going to belabour the obvious: it is a space that has been hired for us to use. We are in that space legitimately.

Stop haranguing us, and badgering us, and slandering us because of your own racism. You would be well advised to cease projecting your own racism onto others. Being against Jews, as you state to us you are, is racist. The exhibition includes criticism of 4 religions - and this has nothing to do with race.

You cannot claim to be threatened by Demetrios and be scared of him on the grounds that he does not agree with your myopic world view which is, to reiterate, a consequence of 'your limited intellect and limited erudition'. And you can not engineer, as it is evident you are engineering, a claim that we have [breached] some condition of exhibiting at the gallery, by claiming we have committed a criminal act because of our 'racism', or as it seems, 'attacked' you because you claim that being contradicted scares you! We do not want you to talk to us, we did not invite you to badger us with your diatribe. We do not want to deal with you. We do not want to listen to your bellicose belligerent rants. If you have anything to say to us, do it through an intermediary. And stop fabricating the 'I'm threatened by you' nonsense, which is contradicted by your shadowing both of us. I am concerned by you because your behaviour is characteristic of a bully unable to have his own way. You are unreasonable to deal with.

We are not confident to even suggest people visit the exhibition because your behaviour suggests to us you are badgering people for merely viewing the art. You obviously do not understand Surrealism nor its aims ...

That [you can] bully and badger your employees and volunteers until they simply acquiesce to your belligerence, never makes you right. They are in an unfortunate position, and we feel for them. They are not responsible for your behaviour. The signage is your prerogative, but that does not give you the right to harangue us.

If we come into the gallery it will be during gallery hours to view our exhibition with guests. It is our expectation you will conduct yourself appropriately.

As per the instructions on your 'responsibilities of the artist' paper work we will arrive to take down and remove our show at 5pm on the final day, Sunday 5th July. This is what has been agreed to.

69 Mr Cripps responded to the Artists' email at 12.13pm on 26 June 2009 in the following terms:

Thank you for your communication. I disagree with your statements as per attached email.

At this stage I think it is best that both parties agree to leave the other to their own business and forget trying to resolve the disagreements and misunderstandings. This way you and Demetrios are able to bring people to your exhibition as you wish and we will continue to do our work without further interaction. You can be assured that we will not interrupt you and that [your] guests will feel comfortable in the gallery. We would appreciate it if you could also ensure that myself, gallery staff and volunteers will also not be approached by Demetrios without prior notification, as he has made myself, staff and volunteers feel very uncomfortable.

If you wish to have any further discussion please write to me to prevent heated arguments causing further problems and to keep all communication in writing.

Please also notify me personally when you will be attending the gallery so that I can make sure I am on site, as I am ultimately responsible as the director of the gallery. This is just in case you have any needs that must be met, in which case staff and volunteers do not wish to be involved and you will need to deal with me directly. You may call me on my mobile if need be: [The number is not reproduced]

Thank you in anticipation of a successful interaction.

70 Mr Vakras responded to Mr Cripps' email at 12.54pm on 26 June 2009. He copied his email to Ms Pickett, Ms Trojkovic, Ms Jewell and Ms Raymond. The email was titled 'Re: a misrepresentation of our art' and was in the following terms:

Communicating by writing alone is an excellent idea. However, your claim: 'We would appreciate it if you could also ensure that myself, gallery staff and volunteers will also not be approached by Demetrios without prior notification, as he has made myself, staff and volunteers feel very uncomfortable.' IS SLANDEROUS.

I have not had any hostile interactions with anyone at all, other than with yourself. Both Lee-Anne and I have no ill-will to anyone there other than you. And again, as was written in the email which you disagree with, it is you who obviously intimidates the people with whom you are associated. Even if your staff and volunteers disagree with you, they are not in a position to openly disagree with you without having to endure what I have endured from you. Since they are dependant on you for employment or some form of accreditation that will lead to future employment they do not have much of an option but to agree with you.

You are an unprofessional bully and a liar.

71 Mr Vakras supplemented the above email with a further lengthy email which he sent to Mr Cripps and the other recipients at 6.30pm on 26 June 2009. That email was titled 'Addenda to: a misrepresentation of our art + rebuttal'. The email included the following:

Your problem is with what I have written to accompany my paintings. That is also the reason that you have posted your disclaimer. Whatever else you claim is a concoction.

You summarised your position at the opening, as we were leaving. I was not expecting your reaction. You seem to have taken umbrage to my mentioning that the elderly lady told me that she enjoyed, as she put it, my 'giving it to the Muslims'. I told her, and repeated to you, my criticism was only ever part of a general criticism of all religion. (All that accompanies the works can be found in the illustrated catalogue.)

The problems followed thenceforth:

1/ you claimed that my writing read like 'legalese'. To which I responded that were I not to cite and quote to support what I say then it could be claimed I am an opinionated bigot;

2/ you then criticised me because of the 'delicate' issue of Palestine. You said you were against the 'Jew's state in Palestine'. But as I replied, I don't mention Palestine;

3/ you told me I could be more subtle and artistic (or poetic?) in how I wrote, because you did not like the way I present my arguments. You proceeded to mention 'Palestine' again.

The problem you have is: I cite Koranic passages (such as 9.38-52) which if applied with regards to 'Palestine' (which I do not mention) would mean that the murder of Jews by suicide bombers is guided by something other than desperation by an oppressed people. That is your problem. Since this is the case, then it is obvious that an unintended consequence of my writings is that I expose your position on the issue to be without foundation.

Your insistence on mentioning 'Palestine' repeatedly elicited my response that 'Palestinians' as a people no longer exist ...

IF

I had wanted to write about issues regarding the suicide murders of Israelis I would have cited different passages from the Koran: ...

Read the Mein Kampf. You will find sentiments identical to yours. The problems in 'Palestine' pre-exist the creation of the Jewish state.

...

The ... Mufti of Jerusalem ... actively called for the extermination of Jews, before a Jewish state existed, and asked for Hitler's help. SO YOU CANNOT BLAME THE 'JEW'S STATE' AS THE CAUSE for problems since the problems pre-existed the Jewish state. Hitler actively conscripted Muslims who killed Jews and Orthodox Christians ...

To conclude: I do not mention Palestine. I have not discussed anything, other than mundane issues with your staff/volunteers, for there to be any substance to your claim that I scare them.

I was only fearful of offending 2 people who came to the show. Both told me that they were not offended. The prospective offence was the quoting of the Bible alongside quotes from the Mein Kampf.

72 The Exhibition concluded on 5 July 2009 and the Artists removed their artwork that evening.

73 It is common ground that no damage was caused to the Gallery by the Exhibition.

Correspondence between the parties regarding payment due to the Artists

74 At 2.39pm on 7 July 2009, Ms Raymond sent an email to Ms Pickett regarding payment to the Artists of the Sale Proceeds in the amount of $450 and the refund of the Bond in the amount of $500. Ms Pickett replied later that day stating that the Gallery generally informed exhibitors that refunds and sale payments would be processed within two weeks of the closing date of an exhibition by way of electronic transfer to a nominated account. Ms Raymond provided bank account details by email dated 8 July 2009 and sent follow-up emails to Ms Pickett on 21 and 28 July 2009.

75 On 4 August 2009, Mr Vakras sent an email to Mr Cripps titled 'Reimburse us the money owed now'. The email included the following:

Reimburse the bond and the payment for the one work that was sold immediately.

That you have yet to do so though, is consistent with the unprofessional conduct you have consistently displayed.

You sabotaged our exhibition. And, you continue to harass us by not paying us monies owed, simply because that is the kind of person you are.

...

We both feel that you owe us for more than merely the bond and the money you have received for the work sold because you prevented our ability to do what we paid for!

All we are claiming however is the before-mentioned funds owed.

You are a bellicose bully and racist & we do not want to deal with you because you refuse to reimburse our funds! You will be reminded that you have not yet reimbursed us every day until you do so.

76 At 10.40am on 6 August 2009, Mr Cripps sent an email to Ms Raymond in which he stated:

I am about to transfer the funds for the ... sale of your painting and exhibition bond.

Please confirm that upon receipt of these funds there will be no issues outstanding between yourselves and Guildford Lane Gallery.

We thank you in anticipation of a mutually satisfactory resolution to your exhibition and we sincerely wish you all the best for the future. ...

77 In subsequent email exchanges, Ms Raymond asserted that Redleg was obliged under the Hiring Agreement to pay to the Artists the amount of $950 and had no right to request any form of release. However, in two emails dated 10 August 2009, Mr Cripps insisted that Ms Raymond confirm acceptance of the following statement in order for the Artists to be paid the amount of $950:

Upon refund of Lee-Ann[e] Raymond & Demetrios [Vakras] exhibition bond ($[500.00]) & proceeds from the sale of 1 work of art ($450.00) there will be NO outstanding business or legal issues regarding our exhibition at Guildford Lane Gallery.

78 Ms Raymond confirmed acceptance of the above statement in an email dated 11 August 2009.

79 Redleg paid to the Artists the amount of $950 on 13 August 2009.

80 As stated at [4] and [7] above, the First Vakras Article was uploaded on Mr Vakras' website on 21 August 2009 - eight days after the Artists received the amount of $950 from Redleg - and the Addendum was added to the First Vakras Article on 2 April 2011. The Raymond Article was uploaded on Ms Raymond's website on[16]0 September 2009.16

81 Since the uploading of the Impugned Articles, the Artists have published on the internet additional adverse material on the Defamation Plaintiffs. That material is discussed at [616] to [628] below.

82 The Defamation Plaintiffs have pleaded the following: until May 2011, Mr Vakras' website and Ms Raymond's website were hosted by MYOB, which then removed them; the websites were hosted by iiNet between May and July 2011 and by Telstra in October 2011; and since 2 November 2011, the Impugned Articles have been available on the internet via Nearly Free Speech. The Artists have not admitted the above.

83 Ms Raymond gave evidence that her internet service provider was threatened with legal action, and ordered the Artists to remove their websites. The Artists declined to do so, and her whole website was taken down. At some point after this, the Artists' internet service was cut off and the relevant domain names for the websites were 'hijacked'.

84 Mr Vakras gave evidence that at around the time they were sued, the Artists' primary websites were taken down so they created a new website profile called 'Phantastart', which mirrored both those websites. The Phantastart mirror sites remain online. Mr Vakras does not currently edit or alter them. A second set of mirror websites was also created at a later time when the first set of mirror sites was itself made unavailable.

85 Mr Vakras modified the Addendum shortly after it was uploaded on Mr Vakras' website. The nature of the modifications and their timing are discussed at [445] below.

86 The evidence about who has read the Impugned Articles is discussed below in the context of each article.

87 By virtue of s 5(1AAA) of the Limitation of Actions Act 1958, damages are recoverable in the Defamation Proceeding only for publication of the Impugned Articles on or after 1 April 2010, being one year prior to the filing of the writ on 1 April 2011.

Closure of the Gallery and opening of Ruby's Music Room

88 The Gallery ceased trading in late 2011 or early 2012. In early 2013, Mr Cripps opened Ruby's Music Room at 132 Little Lonsdale Street Melbourne ('Ruby's'). He spent $1.5 million refurbishing that venue.

89 Mr Cripps gave evidence and also called four witnesses who had exhibited or given musical performances at the Gallery (Ms Sarah Curro, Mr Nicholas Murray, Ms Elizabeth Paul and Mr Stephen Sedergreen), a friend (Ms Danuta Czarski), an academic who had formerly worked in the art industry in Sydney (Dr Matthew Piscioneri) and a volunteer at the Gallery (Ms Hua ('Leila') Li).

90 The Artists gave evidence and also called four exhibitors at the Gallery (Ms Katherine Bowman, Ms Josie Waddelton, Mr Albert Mishriki and Ms Hae Won ('Courtney') Kim), a former Registrar of Museum Victoria (Ms Ruth Leveson), a former life model (Mr Gavyn Mickelson) and a former employee of Redleg (Ms Emily Biggs-Kocaj).

91 The conversations between the parties at the meetings held on 18 and 24 June 2009 are of considerable importance in the Defamation Proceeding. Apart from the parties, no witness gave evidence that they saw or heard those conversations. Accordingly, the credibility of the parties is very significant to the resolution of that proceeding.

92 Mr Cripps was an honest but not a very reliable witness due to a faulty memory. His inability to recall dates and other specific details was compounded by the fact that he has been so traumatised by the publication of the Impugned Articles that he has found it difficult to read those articles and any other documentation concerning the two proceedings.

93 Mr Cripps was clearly uncomfortable in the witness box and said: 'I just want it to be over' and 'I just want to get out of here'. At the outset of his evidence in chief, he broke down in tears, necessitating a brief adjournment to enable him to regain his composure. Although he regained his composure, he remained subdued and detached. In cross-examination, he was dejected and apprehensive and he answered questions in a minimalist and almost robotic manner. He seemed to be straining himself to hold back a build-up of emotional pain and to remain calm and in control. However, the tension and the torment were obvious. In short, Mr Cripps came across as a dispirited and crushed individual. The traumatic impact of the Impugned Articles on Mr Cripps is discussed further at [669] to [687] below.

94 I am satisfied that, within the limits of his memory, Mr Cripps endeavoured to give truthful evidence. He did not deliberately make up or omit anything for the purpose of assisting his case. On the contrary, he readily admitted that he could not recall a large number of relevant matters. He also made a number of concessions without any evident hesitation. His answers were not tailored to assist his case.

95 There were occasions during cross-examination when Mr Cripps was confused and could not even recall evidence given earlier in the trial by him or the Artists. There were also occasions when he became non-responsive and engaged in semantics, such as when he refused to acknowledge that he had become angry upon reading Mr Vakras' emails of 2 and 3 June 2009.

96 Mr Vakras was an unimpressive and unreliable witness. He purported to recall with great confidence precise details of conversations that took place in 2009. Some of the details that he purported to recall were mere reconstructions, were added to embellish his evidence or were simply made up to assist the Artists' case.

97 Unlike Mr Cripps, Mr Vakras was very comfortable in the witness box and was keen to explain all. Some of his evidence was gratuitous and self-serving. He had a tendency to make long speeches and to give explanations which were not required by the precise question he was asked. Rather, they were designed either to impress or to assist the Artists' case.

98 Mr Vakras was so keen to ensure that his evidence assisted the Artists' case that he was prepared to deliberately lie.[17] I have found that he lied about important aspects of the events of 18 and 24 June 2009.

99 Due to my concerns about the veracity of Mr Vakras' evidence, I have generally rejected that evidence where it was contradicted or not supported by either contemporaneous documents or the evidence of credible independent witnesses, or where the evidence was implausible.

100 Ms Raymond was also an unimpressive and unreliable witness for broadly the same reasons as Mr Vakras. Like Mr Vakras, Ms Raymond deliberately lied[18] about important aspects of the events of 18 and 24 June 2009. Much of her evidence appeared to be rehearsed. However, Ms Raymond tended to be more focused than Mr Vakras in answering the questions asked of her rather than providing unsolicited, self-serving information.

101 All the other witnesses were honest and, with the exception of Ms Emily Biggs-Kocaj, they were broadly reliable, although some of them were partial.

102 The evidence of Ms Biggs-Kocaj that Mr Cripps behaved in an inappropriate sexual manner towards Ms Li and Ms Thao Bui (two volunteers at the Gallery) conflicted with Ms Li's evidence that Mr Cripps had never behaved inappropriately towards her. Ms Biggs-Kocaj's evidence was also inconsistent with Ms Bui's conduct in recently having her wedding reception at Ruby's. I have preferred Ms Li's evidence to that of Ms Biggs-Kocaj. The unreliability of Ms Biggs-Kocaj's evidence in relation to Ms Li and Ms Bui has diminished the weight that I have given to her evidence generally. In particular, I have rejected her evidence that Mr Cripps has behaved in a sexually inappropriate manner towards any staff, volunteers or exhibitors.

103 Ms Katherine Bowman was the most partial witness. It was obvious from her tone of voice and general demeanour that she disliked Mr Cripps and remained very angry with him. Ms Josie Waddelton also appeared to be very angry with Mr Cripps. On the other hand, Dr Matthew Piscioneri was a particularly impressive witness. Although he was called by Mr Cripps, his evidence was very balanced.

104 Ms Pickett and Ms Low did not give evidence. Senior Counsel for the Artists, Mr Gilbertson, did not make any submissions based on Jones v Dunkel.[19]

Scope of Hiring Agreement and alleged collateral contract regarding catalogue

105 In the Contract Proceeding, there is a dispute about whether it was part of the Hiring Agreement that the Gallery would be responsible for selling, or making available for sale, the catalogue titled 'Humanist Transhumanist' that the Artists had prepared for the Exhibition ('Catalogue'). At the trial, the Artists made an alternative submission that there was a collateral contract pursuant to which the Gallery undertook such a responsibility.

106 It was common ground that the Artists met with Mr Cripps and Ms Pickett for the first time at the January 2009 Meeting.

107 Mr Vakras gave evidence that, at the January 2009 Meeting, both he and Ms Raymond discussed the Catalogue with Mr Cripps and Ms Pickett. Mr Vakras said that the Artists wanted to publish their own catalogue. Ms Pickett responded, 'OK, you can do your own catalogue but we'll bring ['Carnivora'][20] in and we can sell them both in tandem.' Mr Vakras responded: 'That would be great but we're not seeking Carnivora.' Mr Vakras asked whether Ms Pickett could get the publisher's details and she said 'Yes'. Mr Vakras told Ms Pickett that he would email her the following day.

108 Mr Vakras gave evidence that Mr Cripps asked whether the Catalogue would be similar to one produced for an exhibition at the Orange Gallery. Mr Vakras said it would not be similar, because the Orange Gallery catalogue featured 'visionary' and 'religious' art which is antithetical to the nature of surrealism. Mr Vakras said the Catalogue would be polemical. Mr Cripps clapped his hands together and seemed excited about the prospect of the Catalogue.

109 Ms Raymond gave evidence that during the January 2009 Meeting, she pointed out that the Artists would be producing a catalogue. Ms Raymond said that the Catalogue would be 'challenging', and would contain the Artists' art manifesto and images of the works in the Exhibition. Mr Cripps enquired whether the Catalogue would be similar to one produced for an exhibition at the Orange Gallery. Ms Raymond explained that it would be different. Mr Vakras said that the manifesto in the Catalogue was intended to be similar to other art manifestos in the surrealist tradition, and would be 'polemical' and critical of religion.

110 Ms Raymond also gave evidence that Mr Vakras had brought a copy of Carnivora to the meeting. Mr Vakras showed Carnivora to Mr Cripps and Ms Pickett, and they discussed how to get some larger-scale copies of the pages relevant to Mr Vakras. At this point Ms Pickett said 'we should get them in and support them alongside your catalogue downstairs.' When the Artists asked whether she could do this, Ms Pickett responded: 'Yes, we do that all the time.' When Mr Vakras offered to arrange the publication of Carnivora, Ms Pickett said 'no, we do that all the time.'

111 Mr Cripps gave evidence that he could recall that some 'books' were shown at the January 2009 Meeting. He described the publication 'Carnivora' as a 'creature type book' and initially believed the name of the publication began with the letter 'V'. Mr Cripps could recall very little about the Catalogue from that meeting.

112 Under cross-examination, Mr Cripps denied that there had been a conversation about the Catalogue on 23 January 2009. He accepted that the Orange Gallery was discussed, but denied that this arose out of a discussion of the Catalogue. He denied that either he or Ms Pickett had offered to order in the publication Carnivora on behalf of the Artists.

114 The only evidence that might possibly be construed as a promise that Redleg would be responsible for selling the Catalogue is Mr Vakras' statement that Ms Pickett said 'we can sell them both'. Ms Raymond's evidence cannot be construed in that manner. In any event, I reject the Artists' evidence to the extent that it suggested that Ms Pickett and Mr Cripps agreed that the Gallery would be responsible for selling the Catalogue during the Exhibition. I am satisfied that the Artists said that they would be producing their own catalogue for the Exhibition and asked whether copies could be brought to the Gallery and offered for sale by the Artists and that Mr Cripps agreed. However, at no time did Mr Cripps or Ms Pickett promise that the Gallery would be responsible for selling the Catalogue. I am also satisfied that the Artists left copies of the Catalogue at the Gallery to be available for sale by them.

115 My finding at [114] above is consistent with the parties' course of dealing. The Artists' Exhibition Proposal and Ms Raymond's email of 11 December 2008 to Ms Pickett did not mention the sale of the Catalogue by [21]e Gallery.21 Neither did Ms Pickett's emails of 12 December 2008 and 2 January 2009 to Ms&#[22]Raymond.22 The email of 2 January 2009 set out the services that the Gallery would provide for a fee of $3,465 and some services that could be purchased for an additional fee. The fact that the parties agreed to add the Open Studio to the hired space for an ad[23]tional fee23 demonstrates that it was the Gallery's practice to charge extra fees for the addition of services to those included in Ms Pickett's email of 2 January 2009. No agreement was ever reached for the addition of the extra service of sale of the Catalogue by the Gallery.

116 My finding at [114] above is also consistent with Ms Pickett's email of 4 May 2009 to Ms&[24]Raymond24 and Ms Low's email of 12 June 2009 to Ms&#[25]Raymond.25 Those emails stated that the Artists would be responsible for selling the Catalogue. The Artists did not send any email that challenged these statements. My finding is also consistent with the exchange of emails between Ms Raymond and Ms Trojkovic on 8 and 10&#1[26]June 200926 about the Gallery providing plinths to the Artists for use in selling the Catalogue. It is also consistent with the fact that the Catalogue is not mentioned in the Hiring Agreement. Clause 11.c of the Hiring Agreement makes it clear that it sets out the entire agreement between the parties and that any prior discussions which are not reflected in the provisions of the Agreement have no effect. Although Mr Vakras made two corrections to the Hiring Agreement before[27]igning it,27 he did not add a provision that would require the Gallery to sell the Catalogue.

117 My finding is also supported by the evidence that Mr Cripps sought permission from the Artists to give a free copy of the Catalogue to Ms Ladas after she bought one of Mr Vakras' paintings on the opening night of the Exhibition. Ms Raymond gave evidence that:

Mr Cripps came up and said to me that a work had sold and would I like him to handle the transaction and I said yes, please, and he asked, 'Could I provide the purchaser with a copy of the catalogue or should I charge them', and I said, 'No, they can have two if they want', and he ... went off and he did that.

118 There is simply no evidence that the parties discussed or even contemplated that there would be a separate, collateral agreement dealing solely with the sale of the Catalogue. The absence of such evidence makes it impossible to accept the Artists' alternative submission concerning a collateral contract. In any event, even if discussions about a collateral contract had taken place, the legal requirements for a binding contract, including certainty of terms and mutual consideration, have not been established.

119 In my opinion, the contract between the Artists and Redleg was solely comprised of the Hiring Agreement. I reject the Artists' contention that the contract was partly in writing, partly oral and partly to be implied.

Missed meeting of 1 June 2009 and meeting on 5 June 2009

120 As stated at [46] above, on Monday 1 June 2009, the parties agreed that the Artists would attend the Gallery after 5.00pm on that day to inspect the first floor space. As the Gallery was normally closed on Mondays, it had been agreed that Ms Low and Mr Cripps would be at the Gallery to meet the Artists. It is common ground that the Artists did not meet Ms Low and Mr Cripps, and did not gain access to the Gallery on that day ('Missed Meeting').

121 The Artists gave similar evidence in relation to the Missed Meeting. Their evidence was to the following effect:

(a) Mr Vakras arrived at Guildford Lane at approximately 5.15pm and waited for Ms Raymond to join him. Ms Raymond arrived at approximately 5.20pm.

(b) The Gallery door was shut. The Artists looked through the window and saw there were lights on inside but could not see anyone on the ground floor.

(c) There were three A4 size signs that were stuck on or near the Gallery door. One of the signs set out the Gallery's opening hours. There was no sign with the Gallery's telephone number. There was a sign on the window to the left of the main door giving notice of the Gallery's application for a liquor licence.

(d) A woman arrived who told the Artists that she had an appointment with Mr Cripps. She banged on the Gallery's windows and door, and called out but there was no response from inside the Gallery. The woman used her mobile phone to telephone directory assistance. She asked for the Gallery's number and then dialled a number. She said that there was no response.

(e) Ms Raymond used her mobile phone to call the telephone number that she had used to call the Gallery earlier that day and on other previous occasions. The number rang but no one answered the call.

(f) The woman left and then the Artists also left at approximately 5.30pm.

122 Mr Cripps gave evidence to the following effect:

(a) In 2009, his residence was on the second and third floors of the Gallery. He lived and worked at the Gallery and was generally there 18 hours per day.

(b) There were four A4 size plastic sleeves above the Gallery door. Three of the sleeves contained fixed signs whereas the fourth sleeve was used for two separate removable signs, one stating the Gallery was open and the other providing the Gallery's telephone number. At night, calls to the Gallery's number went to an answering machine. The Gallery also owned a mobile telephone which was kept by the manager on duty. The mobile telephone number was on one of the removable signs. The mobile telephone was turned off after hours.

(c) Mr Cripps and one or two other staff members were in the office on the third floor of the Gallery on 1 June 2009. He did not leave the Gallery.

(d) Mr Cripps was 'really dissatisfied' and 'disgruntled' about the emails sent by Mr Vakras following the Missed Meeting. He found the emails 'upsetting' but he was not angry.

124 I accept the Artists' evidence that they were both at Guildford Lane by 5.20 pm and that the Gallery door remained shut during the time that they were there. I also accept the Artists' evidence that there was no sign with a telephone number on the Gallery door, that a woman arrived, that she obtained a telephone number from directory assistance, and that she dialled a number. I am unable to determine whether the number that she obtained and dialled was the then current number for the Gallery.

125 I reject the Artists' evidence that Ms Raymond used her mobile phone to telephone the Gallery's number. This is because that evidence is inconsistent with the emails dated 3 June 2009 that Mr Vakras[28] and Ms Raymond[29] sent to Ms Low, in which they both referred to a 'lady' calling the Gallery but made no reference to Ms Raymond calling the Gallery.

126 I accept Mr Cripps' evidence that he and Ms Low were inside the Gallery at the time that the Artists were outside the Gallery. Consistently with Mr Cripps' evidence, I find that Mr Cripps and Ms Low were in the office, which is on the third floor of the Gallery, at that time. I note that in her email of 3 June 2009 to Mr Vakras, Ms Low stated that she and Mr Cripps waited at the Gallery until 6.30pm and that they did not receive any telephone call from the Artists and hence they did not know that the Artists 'were downstairs.'[30]

127 There are at least three possible explanations as to why Mr Cripps and Ms Low did not become aware that the Artists were outside the Gallery. The first explanation is that Mr Cripps and Ms Low did not hear the Gallery's telephone ring when the unnamed lady telephoned because they were too far away from the telephone. The second explanation is that the lady telephoned the wrong number. The third explanation is that the lady's call was diverted to the answering machine. It is not necessary for me to choose between these explanations or any other explanation.

128 The Missed Meeting was an unfortunate situation that arose through miscommunication. There is no basis for a finding that Mr Cripps was aware that the Artists were outside the Gallery and deliberately ignored them. Mr Gilbertson did not submit that such a finding should be made.

129 Ms Raymond attended the Gallery on 5 June 2009. She gave evidence that Mr Cripps said 'You, I want to talk to you' and then said that Mr Vakras' emails were unacceptable and that he did not like being spoken to like that. Ms Raymond gave evidence that Mr Cripps spoke angrily, that he was 'very cross' and 'pretty cranky' and that he basically 'scowled' at her. He told her that she should have called, and that there was no telephone call to the Gallery. Mr Cripps explained that the sign with the Gallery telephone number was removed from the outside of the Gallery at night due to problems with prank callers. Ms Raymond responded that she had called the Gallery using the number saved in her mobile telephone but it rang through.

130 Mr Cripps gave evidence that he indicated to Ms Raymond that he was not impressed by Mr Vakras' emails and did not see them as being necessary. Ms Raymond was apologetic and Mr Cripps was apologetic in return. In cross-examination, Mr Gilbertson put to Mr Cripps that he was angry about Mr Vakras' emails. Mr Cripps acknowledged that he was 'really dissatisfied' and 'disgruntled' but denied that he had been angry. He also said that he probably did not understand the difference between these concepts.

131 I accept Mr Gilbertson's submission that I should reject Mr Cripps' evidence that he was not angry about Mr Vakras' emails. However, I find that Mr Cripps did not display any anger towards Ms Raymond during their conversation. I reject Mr Gilbertson's submission that Mr Cripps berated Ms Raymond. The contemporaneous documents and the Impugned Articles do not contain any complaint that Mr Cripps berated Ms Raymond on 5 June 2009. In fact, following her meeting with Mr Cripps, Ms Raymond telephoned Mr Vakras who, instead of complaining to Mr Cripps about his alleged berating of Ms Raymond, apologised to him.[31]

Was the Artists' artwork accompanied by labels?

132 Mr Cripps gave evidence that the paintings that were part of the Exhibition were accompanied by a label as well as an essay. He said that each label briefly described and explained the themes in the accompanying painting. The Artists gave evidence that the only items that accompanied their paintings were a number that referred back to the Catalogue and, for some of the paintings, an essay.

133 I accept the Artists' evidence that there were no labels because it is consistent with a photograph taken by Mr Vakras.[32] The photograph shows a painting and an essay next to it. It is likely that Mr Cripps' references to labels are to the essays.

Meeting on opening night of the Exhibition, 18 June 2009

134 Mr Vakras gave evidence that, on arriving at the Gallery at about 6.15pm on 18 June 2009, there were approximately 30 people on the ground floor and 40 people on the first floor. At approximately 8.00pm, he and Ms Raymond saw Mr Cripps on the ground floor of the Gallery when they were walking down the stairs from the first floor. Mr Cripps was standing near the bar. Mr Vakras did not give evidence as to approximately how many people were still on the ground floor in connection with the two exhibitions that had taken place there. He said that the remaining people were mainly to one side of the ground floor of the Gallery and that there were 'virtually no people' on the first floor.

135 Mr Vakras said that, when he and Ms Raymond reached the ground floor, they approached Mr Cripps. In his evidence in chief, Mr Vakras described what happened next as follows:

[As] I was approaching him an older lady who identified herself as somebody related to one of the exhibitors downstairs, asks me, 'Are you the artist from upstairs'. I said, 'Yes, I am'. She goes, 'I love your work'. I said, 'Thank you'. She says, 'It's about time somebody gave it to the Muslims'. I said, 'Well, it's not really a criticism of Islam', and she says, 'I understand what you're meaning but it's about time somebody did give it to the Muslims', and Robert Cripps just passed the lady because we are on our way out and I looked up at him and said, 'You realise it's not what she's saying', and he said, 'That's where I have a problem with you. I have [a] problem with what you write. I have a problem with what you write because of the sensitivity with Palestine'. So after he said that I said, 'Palestine, I don't understand what you're talking about with Palestine'. He says, 'Your opinions on the Koran they're insensitive to Palestine'. I said, 'Robert, I'm not criticising Palestine'. He said, 'Well, your opinions of the Koran are racist'. I said, 'Robert, I'm an atheist', and then he persisted with his story with Palestine. I said, 'Robert', you know, the quotes, he was insisting that they were opinions of the Koran. I corrected him and told him, no, they're not opinions of the Koran, they're actually quotes from the Koran.

I said to him, 'Look, I took a lot of care and if you read what I write I say that I've consulted a number of translations and I've actually got the quotes themselves so when I'm referring to what the Koran says you can't say that it's just out of any bigotry so there's footnotes'. He said, 'Ah, that makes it read like legalese'. I said, 'Legalese?' 'Yes', he says, 'I can't understand it'. I said to him, 'Well look, we can go over it and maybe explain to you'. He goes, 'No, it reads like legalese. Even the girls' eyes glaze over when they read it'. I said, 'Well, no, it's not legalese'. ...

He said, 'I have a problem with your quotes from the Koran because they ... create the impression that the Jews are the victims of Muslims', and I said to him, 'Well, in Palestine'. I said to him, 'Whatever exists in Palestine actually predates the existence of the State of Israel so what you're saying can't be right'. He's saying, 'No, your opinions on the Koran are racist and the Muslims are the victims of Jews in Palestine. I don't like the Jews. I don't like the Jews' state in Palestine', or the Jews and their state in Palestine. ...

Lee-Anne was ... next to me and she was making her interjections saying, 'Robert, you're saying you don't like the Jews and you just called our exhibition racist', and she said, 'That of itself is racist', and he said, 'Yes, what of it'. He insisted that any action that ... the Muslims take are reactions to Jews and what I've written is racist ...

I told him I'm an atheist and I'm criticising Christianity, I'm criticising Judaism and I'm also criticising Zoroastrianism. So there's four religions that I've criticised and as an atheist it's not racist to criticise religion. But he was fixed on [applying it] to the Palestinians. ... I then went to try and defuse the situation by asking him ... if he realised that Palestine and Palestinians aren't [a] race, Palestine is a territory. I asked would an Arab be a Palestinian and he said, 'Yes, a Muslim would be a Palestinian'. 'A Christian?', and he said, 'Yeah, that would be fine.' I said, 'A Jew'. He said, 'No a Jew can't be a Palestinian and there shouldn't be any Jews in Palestine', and I said to him, 'Well, that's the same position as [indistinct].'

[A]fter he said, 'There should be no Jews in Palestine. It is the Jews in Palestine that are causing the problems and the ... Muslims are reacting to what the Jews [do] to them'. And at this stage I got quite annoyed and I said to him, 'What, like suicide bombings' and he said, 'Yes', and I said, 'What like school children on a bus'. There is a specific incident called the Haifa Bus Number 37 incident if people want to look it up.

Lee-Anne was interjecting saying, 'But they're children', or we both were pretty horrified and then we said why, why is it - he said - he was getting agitated, Robert Cripps was. So at this stage he was just getting agitated and he said yes so ... Lee-Anne was insisting that what he's saying right there is racist, Robert, 'You've called us racist for criticising Islam and you're by criticising the Jews are racist yourself', and he said, 'Yeah, what of it'.

I did at one stage also mention ... that if you really look at what my criticisms are I'm a lot more critical of Christianity, I believe, than what I am of Islam. ... I said to him my criticism[s] are a lot more harsh with respect to Christianity and Judaism and that similar to Mr Cripps the Nazis also - or Adolf Hitler supported the Muslims and their plight, the Muslims and the Mufti in particular and his aims in Palestine ... I said the Mufti, the Nazis supported the Mufti in Palestine had the same aims ...

I did say that my criticisms of Christianity are a lot ... harsher ... I did say that the Nazis supported the cause of the Muslims in Palestine and I then ... told him that ... Hitler had the same objectives in Palestine and I then ... said to him, 'You do realise that Palestine is named after the Paleset. The term Paleset first appears'. Anyway he didn't allow me to finish so at that point he starts interjecting telling me that I'm racist and I said, 'Robert, you're a man limited in your [erudition] and of limited intellect', and I turned to go ...

[He] started saying, 'Well, you're racist and I want you out of my gallery. I want you and your racism out of my gallery', and Lee-Anne was turning around as well and then as we're walking he ... says, 'No, come back', and Lee-Anne turned around and said, 'We're going, Robert'.

136 Mr Vakras maintained the above version of events during cross-examination.

137 Ms Raymond gave similar evidence about the conversation with Mr Cripps on 18 June 2009. She said that when she and Mr Vakras came down to the ground floor at '[r]oughly 8pm', there were 'about 30 or 40 people still ... milling around the bar area which we were nearby ... there were people peppered throughout.' She also said that she noticed that people were observing the exchange between Mr Cripps and herself and Mr Vakras.

138 Ms Raymond's evidence in chief included the following:

We went downstairs. We were attempting to seek out Mr Cripps and thank him so we thought that the evening had gone relatively well. ... Demetrios sighted Mr Cripps and was walking over to him to shake his hand. In the interim an elderly lady had intervened, asked Demetrios was he the artist upstairs and said she liked what he wrote and it was about time someone gave it to the Muslims and Demetrios immediately reassured her that it's not about critiquing Muslims or Islam particularly, it's about critiquing religiously derived values and he noticed Mr Cripps observing this and he said to Robert, 'I hope you understand that it's not about attacking Islam, Muslims, that that's not what the show's about', and attempted to say the same thing and Mr Cripps interjected with, 'See, that's why I've got a problem with you. What you say, what you write is insensitive to the delicate situation in Palestine', ...

I came into the conversation about that time and Mr Cripps explained that yes, to critique Islam was racist because it was insensitive to Muslims and the problems that Israel caused in Palestine. And I said, 'Racism, what racism, where? Where is it racist?' I was not really addressed. Demetrios pointed out or commented that as well, that that conflict isn't mentioned in our exhibition and what did he mean, I don't understand it, it reads like legalese. ...

Demetrios said, 'Legalese, I don't understand what you mean and I was careful with what I wrote'. He said, 'Well, ... it's not artistic. It's not simple enough. It's not poetic enough', and Demetrios said, 'Well, I was careful, that's why I included the quotes to prevent people thinking that I was critiquing out [of uninformed] bigotry', and I said, 'Yeah, how is it racist', and he said, 'It just read like legalese'. Demetrios said something about do you mean the footnotes and the references to the Koran and the quotes from the Koran and I think Mr Cripps confirmed that that's indeed what the problem was. I said, 'But how is that racist and we critique Judaism, Christianity and Islam.' ...

I told Mr Cripps that, you know, the exhibition critiques the four major mega religions and Demetrios interjected at that point I think on - 'And where's Palestine mentioned', and Cripps said, 'It's because of what the Jews are doing in ... Palestine ... that forces the Muslims to act'. And Demetrios said, 'So what, suicide bombers on a bus in Israel while school children are going to school, that's because they're forced to act', and Mr Cripps said, 'Yeah'. And I said, 'But that's racist'. I said, 'There's school children on a bus'. Mr Cripps then said, 'So', and Demetrios then said that I've heard what you were saying before, this has been something that was propounded by Hitler and I can't talk to exactly how it was put but the meaning was that what Mr Cripps was saying was reconfirming that Hitler said that the Jews should not be in Palestine.

[Mr Cripps] said, 'No, well, the Jews should not be in Palestine, they're the cause of the conflict'. I said, 'Well, this conflict is not even mentioned in our exhibition and I don't understand how it's racist', and 'The Jews caused the problem', was the response and then Demetrios [said], 'Well, I've heard what you've said before', or I've read what you've said before and in the Mein Kampf in the Second World War the Nazis and - he went on to talk about how the history of the region is known that prior to World War II the history of the region is ...

[Mr Cripps] said, 'Your exhibition is racist and it's the Jews that caused the problem', something along those lines. Demetrios said at that point, 'Robert, you're a man of limited erudition and limited in your intellect'. Mr Cripps exploded at that point and directed us to get out of the gallery, get our racism, our racist art. ... He said, 'I want you out. I want your racism, I want your racist art out of my gallery. I don't want racism in my gallery'. We went to leave of course and as we were leaving Mr Cripps called out, 'I'm not finished with you', and I turned around and I took a couple of steps back and I said, 'Robert, we're leaving', very firmly and we left and we could hear he was still yelling at us as we entered the laneway.

139 In cross-examination, Ms Raymond did not resile from her evidence in chief. When it was put to her that she had been concerned in her evidence in chief to point out that she had noticed people observing the exchange between Mr Cripps and herself and Mr Vakras, she said this was '[b]ecause it was embarrassing and humiliating'.

140 Mr Cripps gave evidence that, on 18 June 2009, he spoke to the Artists on the first floor of the Gallery at around 8pm. He gave the following evidence in chief:

I think there was only one person that I'm aware of on the first floor other than ... Vakras and Raymond. On the ground floor there was probably only a handful of people, five to seven people. ...

I congratulated them on the show, on the sale that had been made and I said that I couldn't understand the labels and the written support material for their works. It was too complex for me to understand. I also indicated that my philosophy was that we should de-mystify the art process so would it be possible to leave the labels and the signage as is and to put some simple English documents there as well so the exact meaning of the works could be deciphered much more easily.

Mr Vakras was unimpressed. ... Mr Vakras said to me that an educated person should be able to understand what he was writing about. ... I disagreed. I indicated to him that it may be possible for misinterpretation to take place and that if it was anti Palestinian, if it was anti Zionist there could be a problem. I didn't have the skill or the ability to understand what his works actually meant, what the writing meant ...

I admitted I had no art background, I had no art training and I didn't understand, I didn't understand his essays, nor did I understand the paintings. ... [Mr Vakras] was just insulting ... I lacked erudition ... I found him threatening ... We moved over to a particular work ...

I indicated ... what I was concerned about. There ... were labels other than the essays ... And I was actually talking to him about the labels because they were written in ... a different script and then it wasn't written in English that I could understand. ...

I said it bordered on being legalese. It was just really complex and difficult to understand and, and that the gallery's philosophy was to de-mystify and not mystify, and I asked again whether ... they could leave what was there but put some simple English explanations beside the works. ...

I said ... that I ... was concerned that ... it could be possible to misinterpret the message of their works, that it could be ... anti Palestinian or anti Israeli. I really didn't have the skill to, to interpret it.

There was general comment about my inability to understand and that ... as the gallery director I'm supposed to be able to understand these things.

I was ... getting pretty grumpy because I was really trying to be friendly to them and they were so prickly and ... upset, upset at me not being able to understand their work.

I walked ... away and walked downstairs and ... that's the last conversation I had with them that night.

141 Mr Cripps denied that he had heard anyone congratulate Mr Vakras on what he had said about Islam or Muslims. He said 'It didn't happen'. He also denied that racism was mentioned on either 18 or 24 June 2009. He said that he did not at any time accuse the Artists of being racists.

142 In cross-examination Mr Cripps denied that the conversation took place on the ground floor and that he was confusing this conversation with the later conversation on 24 June 2009. He admitted that he said during the conversation that the Muslims were reacting to what the Jews do to them. He said that he vaguely remembered something about suicide bombers on a school bus but did not know the context. He denied ever having a conversation with Mr Vakras about Hitler.

143 In cross-examination, Mr Cripps also said that, at the time of his conversation with the Artists on the first floor of the Gallery, 'the other exhibition' was still open downstairs and that the bar was still open there. He said that he could not see what was happening downstairs but that, judging from the voices he heard, he estimated that there were five to seven people on the ground floor.

144 In cross-examination, Mr Cripps stated that he and Mr Vakras raised their voices during this conversation but he denied that he was angry. He said that he read some of Mr Vakras' essays prior to the opening of the Exhibition and that he thought he had seen references to the Koran and Islam in them. Some volunteers and members of the Gallery's staff also read some of the essays and told him that the essays were 'really complex and they ... couldn't understand [the essays]'.

145 There are two striking features of the Artists' evidence about their conversation with Mr Cripps on 18 June 2009. The first is the remarkable degree of similarity between their evidence. The second is the detailed nature of the evidence and the purported word for word recollections of the conversation. These features, the dearth of support for the evidence in any of the contemporaneous documents, the inherent improbability of some aspects of the evidence and my adverse findings about the credibility of the Artists, have caused me to largely reject the evidence.

146 Based on the facts that are not in dispute and for the reasons set out at [145] above and [147] to [163] below, I find that it is likely that the circumstances prevailing on the evening of 18 June 2009 and the conversation between the parties were broadly as follows:

(a) Three exhibitions, including the Exhibition, had their opening night at the Gallery on 18 June 2009. Two exhibitions were held on the ground floor and the Exhibition was held on the first floor. The Gallery was open to the public without charge. Liquor was sold at the bar on the ground floor.

(b) The openings of the three exhibitions commenced at 6.00pm and concluded by 8.00pm.

(c) During the above period, the Artists remained on the first floor. At some time during that period, an elderly lady approached Mr Vakras and told him words to the effect that 'it was about time someone gave it to the Muslims'.

(d) At the time of the conversation referred to below - that is, shortly after 8.00pm - the only persons remaining in the Gallery were Mr Cripps, the Artists and five to seven others. The other individuals were the person in charge of the bar on the ground floor and some other staff and volunteers. It is possible that the two artists whose work was being exhibited on the ground floor or some guests were on the ground floor.

(e) Shortly after 8.00pm, Mr Cripps visited the Artists on the first floor of the Gallery. He congratulated them on a successful opening and for the sale of one of Mr Vakras' paintings.

(f) The Artists said words to the effect that they were pleased with the opening and with the feedback that guests had provided. Mr Vakras mentioned that an elderly lady had told him that she liked the fact that his essays 'give it to the Muslims'. Mr Vakras also said that his essays criticise all religions and not just Islam.

(g) Mr Cripps said words to the effect that he did not understand the essays that accompanied some of the paintings because they read like legalese. Mr Vakras responded by stating that his essays quote from the Koran to support his views so that he could not be accused of being an opinionated bigot.

(h) Mr Cripps said that Mr Vakras' essays are difficult to understand because they are very long and complex and use foreign words. He said that staff and volunteers had told him that they found the essays very complex and could not understand them. He suggested that it would help if a shorter document were prepared for each painting which explained in simple English what that painting was about. Mr Vakras said that, as a gallery director, Mr Cripps should be able to understand artists' work.

(i) Mr Cripps said that he was concerned that Mr Vakras' essays could be interpreted as being anti-Palestinian and racist. He mentioned that the situation in Palestine was delicate and that he was against what the Jewish State was doing in Palestine. He said that the essays could be interpreted as laying the blame for the violence in Palestine solely on the Palestinians and that such an interpretation would ignore that the Palestinians are oppressed people who resort to violence out of desperation and who were reacting to what the Jews do to them. Mr Vakras responded that his essays do not mention Palestine, that 'Palestinians' as a people no longer exist and that Mr Cripps was limited in his erudition and of limited intellect.

(j) Mr Cripps' criticism of Mr Vakras' essays upset Mr Vakras. He became aggressive and abusive when Mr Cripps said that Palestinians resort to violence out of desperation and were reacting to what the Jews do to them. He asked rhetorically in a loud voice: 'What, like suicide bombers on school buses?' Mr Cripps did not respond to the rhetorical question. Mr Vakras loudly accused Mr Cripps of being a racist. He said that Mr Cripps' views were similar to Hitler's views in Mein Kampf and that Hitler and the Nazis had supported the cause of the Muslims in Palestine. Mr Cripps became angry and also raised his voice. He told the Artists that it was time for them to leave and that they were to call him before coming to the Gallery in the future.

(k) No part of the conversation between the parties was observed by any other artist or any guest who had attended the Gallery on the evening of 18 June 2009. Parts of the conversation were observed by a member of staff or a volunteer who visited the first floor. Parts of the conversation may have been heard by the persons on the ground floor. After the Artists left the Gallery, staff and volunteers told Mr Cripps that they felt uncomfortable around Mr Vakras.

147 As can be seen from the above findings, I have rejected key aspects of the Artists' evidence about their conversation with Mr Cripps. Those aspects are discussed below.

148 The first aspect concerns the location of the conversation. Mr Cripps said that the conversation occurred on the first floor while the Artists said that it took place on the ground floor. I have preferred Mr Cripps' evidence because it is more plausible. The Artists remained on the first floor throughout the opening of the Exhibition and would have been packing up to leave shortly after 8.00pm. The nature of the conversation between the Artists and Mr Cripps was such that it must have occurred after the opening had concluded. It is entirely logical for Mr Cripps to visit the Artists on the first floor at that time to provide feedback about how the opening had fared.

149 The second aspect of the Artists' evidence that I have rejected is their assertion that an elderly lady came between them and Mr Cripps as they approached him. I have concluded that the elderly lady had approached Mr Vakras earlier in the evening on the first floor, in Mr Cripps' absence, because this is consistent with what Mr Vakras stated in his email of 26 June 2009 to Mr Cripps:

You seem to have taken umbrage to my mentioning that the elderly lady told me that she enjoyed, as she put it, my 'giving it to the Muslims'. I told her, and repeated to you, my criticism was only ever part of a general criticism of all religion.[33]

150 If the elderly lady had spoken to Mr Vakras in Mr Cripps' presence, there would have been no need for Mr Vakras to inform Mr Cripps of what she had said to him and what he had said to her.

151 The third aspect of the Artists' evidence that I have rejected is Ms Raymond's evidence that 30 to 40 people observed the conversation and that she found this embarrassing and humiliating. If a conversation of the type described by the Artists had taken place before 30 to 40 people which caused the Artists humiliation and embarrassment, it would be expected that they would have complained to Mr Cripps in writing and in strong terms that very evening or on the next day. This is precisely what Mr Vakras did when he became angry following the Missed Meeting.[34] Both Mr Vakras and Ms Raymond sent emails to Mr Cripps after the meeting on 24 June 2009 that were critical of him. However, neither Mr Vakras nor Ms Raymond sent a single email to Mr Cripps in the period between 18 and 24 June 2009.

152 Further, neither in the contemporaneous documents nor the Impugned Articles did the Artists mention that the conversation was witnessed by any guests or other artists. It is inconceivable that the Artists would not have mentioned the presence of guests or other artists if they had observed the conversation.

153 The only references to the opening night that the Artists made in any of their contemporaneous documents or the Impugned Articles are as follows:

(a) The statement in Mr Vakras' second email of 26 June 2009 to Mr Cripps that is set out at [71] above;

Cripps is a self-confessed racist ...

Cripps took exception to my explanatory essays.

...

Yet it was not the exposure of the Biblical basis of Hitler's racism that Cripps took exception to. His actual objection was to my quoting from the Koran, particularly 9.38-52, in which the god of Islam, 'Allah', guarantees automatic 'martyrdom' to those who are killed while in the act of killing non-Muslims.

According to Cripps, quoting the Koran is insensitive to 'Palestine', because he is opposed to, as he said, 'the Jew's state in Palestine.' He then accused me of 'racism'! (Neither 'Israel' or 'Palestine', or the conflict there are mentioned in the exhibition)

For Cripps the actions of 'Palestinian' (Arab Muslim) suicide murderers in killing Jews are justified.

...

According to Cripps, my essays were unintelligible, lacked artistic essence (whatever that might mean), and read like legalese. The eyes of his volunteers ('the girls'), he said, 'would glaze over' as they tried to comprehend the incomprehensible.

[Mr Cripps] embarrassed me, and the entire concept of the show, by asking women at the opening, 'is that your lovely bottom?' ...

No more than 5 minutes after the close of our opening night event my co-exhibitor, Demetrios Vakras, and I were subjected to a truly sickening tirade of insult by the Director, Robert Cripps. The basis for his tirade, directed mostly at my co-exhibitor was that Cripps had taken exception to one aspect of religious criticism in the exhibition. In his tirade we were informed without invitation, that he (Cripps) was anti the Jewish State and pro Palestinian. There was no reference to this conflict in the content of [the] exhibition. Nevertheless he demanded it be removed. We left that evening, without resolution to this extremely insulting accusation ...[35]

154 My findings are consistent with Mr Cripps' evidence that, while he was on the first floor with the Artists, he could hear the voices of five to seven people on the ground floor.

155 The fourth aspect of the Artists' evidence that I have rejected is their assertion that Mr Cripps described Mr Vakras and his artwork as being racist as distinct from stating that his essays could be interpreted as being racist. I have done so because this assertion is not mentioned in Mr Vakras' second email of 26 June 2009 to Mr Cripps or in the Raymond Article. If Mr Cripps had made this accusation, the Artists would have written to him to complain, but neither did so.

156 The fifth aspect of the Artists' evidence that I have rejected is their assertion that Mr Cripps said that he did not like Jews. I find that Mr Cripps did not say this or anything else that could reasonably be interpreted as indicating that he was a racist. In particular:

(a) Ms Raymond did not say that Mr Cripps' description of the Exhibition as racist was itself racist, and Mr Cripps did not respond by saying 'Yes, what of it'; and

(b) Mr Cripps did not say that there should be no Jews in Palestine.

157 The sixth aspect of the Artists' evidence that I have rejected is their assertion that Mr Cripps responded affirmatively to the proposition that it was acceptable for Palestinians to bomb Israeli school buses. It was evident from the manner in which Mr Cripps broke down when he was asked about his tour of duty in Vietnam, that the war violence that he had witnessed and his own combat action and injury had seriously traumatised him. Mr Cripps gave evidence that he had many Jewish friends and clients. One of them, Mr Stephen Sedergreen, gave evidence that he had not heard that Mr Cripps was a racist or anti-Semitic.[36] In these circumstances, I am satisfied that Mr Cripps does not condone acts which kill or seriously injure innocent Jewish children and that he neither said nor did anything on 18 June 2009 (or any other time) that could reasonably be construed as agreement to the proposition that it was acceptable for Palestinians to bomb Israeli school buses.

158 The seventh aspect of the Artists' evidence that I have rejected is their assertion that Mr Cripps said that he did not want them or their art in the Gallery and that he asked them to leave the Gallery. This is largely because the contemporaneous documents do not support this assertion.[37] My finding that all that Mr Cripps did was to ask the Artists to leave on 18 June 2009 because of the late hour and to give him prior notice of any future visit by them to the Gallery is consistent with the Artists' evidence that, on 24 June 2009, Mr Cripps greeted them by stating 'I told you to call me.'[38] My finding is also consistent with the evidence of both Artists that they attended the Gallery on 20 June 2009 to view the Exhibition without any hindrance. My finding that Mr Cripps told the Artists that Mr Vakras should add a short explanatory document, rather than removing any artwork or essay, is supported by the fact that Mr Cripps left the artwork and the essays undisturbed.

159 The evidence of the Artists that I have rejected is so detailed, elaborate and adamant that its inaccuracy cannot be attributed to faulty memory or error. Rather, it is evidence that the Artists made up to assist their case. It is deliberately false. The following statements in the Impugned Articles are also deliberately false: that Mr Cripps confessed that he is a racist; that Mr Cripps accused Mr Vakras of racism; that Mr Cripps intimated that the actions of suicide murderers in killing Jews were justified; and that Mr Cripps demanded that the Exhibition be removed.[39]

160 While the discussion on 18 June 2009 became heated and the Artists were not happy with some of the statements that Mr Cripps had made, the Artists were not indignant. If they had been, Mr Vakras would have dispatched an angry email to Mr Cripps, consistent with his behaviour following the Missed Meeting[40] and the meeting on 24 June 2009.[41] The Artists would also have referred to the meeting on 18 June 2009 in greater detail and in stronger terms in the Impugned Articles.[42]

161 To the extent that anyone behaved aggressively on 18 June 2009, it was Mr Vakras rather than Mr Cripps. The emails between the parties indicate that Mr Vakras had a volatile personality and, when angry, used intemperate and offensive language.[43]

162 The Vakras Articles display the same characteristics as those set out at [161] above. Mr Vakras' responses tended to be vindictive and disproportionate to the underlying events. On the other hand, Mr Cripps' emails to the Artists used modera[44] language.44 All of his emails, other than those relating to the payment of the Bond and the Sale Proceeds in August 2009, were also reasonable.

163 It was Mr Vakras' aggressive behaviour while some staff and volunteers were in the Gallery on 18 June 2009 that resulted in Mr Cripps requesting the Artists to give him prior notice when they proposed to visit the Gallery in the future.

164 The Artists gave evidence that they attended the Gallery at approximately 4.15pm on 24 June 2009 to photograph the Disclaimer. They both said that, as they walked up the stairs, they saw a large sign with the word 'WARNING' hanging above the landing between the ground floor and the first floor.

165 Mr Vakras gave the following evidence in chief about what happened after he and Ms Raymond arrived at the first floor of the Gallery:

As we're walking I've put things down on the ground and from a direction I had no idea, because I heard the voice first, was Robert Cripps running at us. He's running, he's really agitated. 'You. You, I want to talk to you. I told you to call me.' And he's saying that to Lee-Anne. And then he wheels around and says, 'You, people saw you attack me, Demetrios.' And Lee-Anne's saying, 'What are you talking about, Robert?' And then he ignores her and says, 'You're here illegally, you're trespassing.' And I said to him, 'Robert, we have a right given us by the contract to be here legally. We are here within the law, we are here according to the contract.' He says, 'You breached your contract because of racism.' I said, 'Well, if that's the case we'll transport our works out.' He goes, 'What, you're the ones who breached the contract because the contract says racism is illegal. Read the contract.' And Lee-Anne says, 'What's racist, Robert?' And he pretty much swings one arm or the other, I can't remember whether it was right or left, he says, 'This.' Lee-Anne says, 'Well, this is surrealism, Robert.' ...

He was pointing at me and he was coming ... to within about two inches from making contact. ... To my chest. ... I didn't say anything. The first thing he says, 'You threatened me, Demetrios.' Then he walks up closer and says, 'I deal with truckies and wharfies and they're tougher than you.' And Lee-Anne and I look at one another and Lee-Anne says, 'What are you talking about, Robert?' And I think ... that's led to the next one, that, 'You have no right to be here, you're trespassing,' and this. So that was in between what I said. ...

The conversation did go back to the ... racism element that had occurred on [the opening] night and that was, that the art of itself was racist. And Lee-Anne said, 'But why is it racist, Robert?' And he says, 'Because of Palestine.' And Lee-Anne said, 'We're atheists, Robert, and we criticise other religions.' And he says, 'Well, they deserve it.' And I interjected at that stage and said, 'Robert, you have no idea of how the Zoroastrians were converted in Persia. It was the intolerance of Islam that forcibly converted the Zoroastrians to Islam.' ... Anyway he ignored me, he kept on talking with Lee-Anne.

As all of this was occurring, at one stage I had noticed a head coming up the stairs, and we were - and Robert Cripps was yelling quite loudly and I was making sure I had my hands down. He was yelling quite loudly, and the lady's head came down. Actually I didn't see it go down. I looked when I was expecting to see her in the gallery and she wasn't there. So ... the conversation kept on going with Robert Cripps yelling quite loudly. And then ... I looked again and she had made her way into the space, Robert Cripps noticed, he quietened down a bit and, yeah, as Lee-Anne is asking Robert Cripps to explain what's racist ... they're moving away to the painting that we call Secular Muse. ... I [didn't] quite hear the rest of the conversation that's going on with Lee-Anne.

There is one part that I've forgotten in the earlier part because when Robert Cripps says, 'I told you to contact us,' Lee-Anne says, 'When? Is that after you kicked us out, Robert?' And he goes, 'Oh, you're a sarcastic woman, Lee-Anne.' ...

[Mr Cripps] was the only person who was there apart from Lee-Anne seeing some legs in the stairwell coming down, but I didn't see them because ... Robert Cripps was directly in front of me and I was keeping my eye on him.

Mr Cripps was very heated ... He demanded that we both leave the premises ... At one stage he left. We'd had a discussion with ... the visitor who was in the gallery, and then he came back with Yolande Pickett after the visitor had gone down the stairs and he ... says that, 'I'm the director.' ...

Yolande was asked, 'Do you agree if it's racist?' ... I was looking at her, she refused to make eye contact with myself, she refused to make eye contact with Lee-Anne, and Robert Cripps said, 'I want you out of my gallery,' and ... then as he's leaving he said, 'The sheriff knows about you'. ... We were walking down the stairs and Lee-Anne and I both see the big warning sign that we had walked past but as I'd packed away the equipment and ... I needed a tripod to set it up to take the photo, because I didn't have a flash camera with me, we didn't want to incite another exchange, we'd left.

167 In cross-examination, Mr Vakras asserted that he and Ms Raymond told Mr Cripps on 18 and 24 June 2009 that he hates Jews and that Mr Cripps replied 'Yes, so what of it'. When it was pointed out to him that neither he nor Ms Raymond had given that precise evidence, Mr Vakras stated 'It was asked at least by [Ms Raymond] on a number of occasions, "But you hate Jews, Robert" [and he] said, "Yes, what of it?"'

168 Ms Raymond gave the following evidence in chief about the conversation with Mr Cripps on 24 June 2009:

It was ... 4.15ish and we introduced ourselves at reception, just politely said hello and Demetrios had brought along our camera and he had the camera equipment around his neck and in a backpack and we went upstairs. As we were going upstairs I noticed a ... huge warning sign and I pointed that out to Demetrios, look at this, and we just kind of went huh and then more quickly went into the space and arrived in the space and we could see that there were disclaimers in various locations. Nearer the open studio section of the space we were just conversing and ... Demetrios was preparing the camera equipment and Mr Cripps appeared from the other end of the space. ...

He appeared at the other side of the room. ... I was facing that way, he'd come from the upper level. He saw us and charged over, racing across the floor, very angry, calling out, 'You and you, I want to talk to you. People saw you attack me, Demetrios and I told you to call me', he said to me. He was working his way either side of us. We just were a bit stunned. We just stood there and I stepped back a little but didn't say anything at that point until he said, 'I told you to call me', when he was looking at me and I said, 'When did you do that, was that before or after you kicked us out of the gallery and called our work and our exhibition racist'. And he said to me at that point, 'You are a sarcastic woman', and then he told Demetrios that we were trespassing ...

He said he had called the police to evict us, they were going to arrive. I said to Mr Cripps, 'Good, we could use them right now.' Mr Vakras, Demetrios said to Mr Cripps that we had hired the space, we were legitimately in the space, we have rights similar to that of a tenant and that if he wanted we would remove the show if he would refund our money, what money he'd owed. Mr Cripps dismissed that, scoffing and saying, 'You've breached the contract, because you've breached the contract I don't owe you anything. You've breached the contract because of your racism,' he said. And at that point I got quite exasperated and said, 'What racism, where?' And he gestured to the entire exhibition, 'This.' And I said, 'Well, this,' in a similar gesture, 'is surrealism, Robert. What were you expecting?' 'Not this. This is racist, I won't have it in my gallery.' And I said, 'What is racist? Show me the racism, take me to the racism.' And he gestured over to ... Secular Muse. So he took me over there ... Just myself.

And we had a discussion about what he thought was racist. I said, 'Show me which part is racist.' He said, 'All of it. It's not poetic enough, it's not artistic enough, it reads like legalese.' He was repeating pretty much what he said on the opening night. And I said, 'Well, what part, what don't you get?' He said, 'I don't understand any of it.' And I said, 'Well, perhaps we can read it.' And he became angry and told me that it was indeed racist. And I said, 'Well, show me which part?' He said, 'Well, the quotes from the Koran.' I said, 'OK, the quotes from the Koran are there as proofs, they're there to provide context to the criticism made and what we have here is,' and I described the visuals of what we were looking at. We've got a bomb crated landscape, a muse, a secular muse and that secular muse is being assailed by violence and it's a religious violence, it's a criticism of religious values, religiously derived values. He's dismissed that said, 'Look, I don't care, even the women,' or the girls, he interchanged either the women or the girls when referencing his staff, 'don't understand it, their eyes glaze over.' I said, 'Well, bring them here and I'll talk to them, we'll talk to them about it.' And he didn't have a response to that. ...

And the next thing I remember is I observed that there was a visitor who had entered the space, a young woman. I think Mr Cripps may have observed her, I don't know why, but he said, 'Look, I've got things to do,' and he left quite abruptly. He returned - we were a bit shaken, I was talking to Demetrios and I said to him, 'What an awful man.' And Demetrios said, 'Don't worry, Lee, you did well.' And we observed the visitor was still in the space so I engaged her and I said, 'I'm sorry you had to hear that.' She said, 'Oh, is he the director or gallery manager or owner?' And ... Demetrios and I said together, 'Yeah,' in a dejected way. 'I don't know what he's on about,' she said, 'I've read everything and I don't understand. It's excellent.' ...

Mr Cripps made the accusation to my partner that he was not frightened of him, he'd known more serious people than him in the past like wharfies and truckies, and we took that as a threat. ...

[The visitor] took one of the flyers. We invited her to take a flyer, and she left the area and Mr Cripps returned with Ms Pickett at that point. ...

She did say she knew that her partner would love this work and that she would return with him, and we don't know if she ever did. ...

Ms Pickett came back up with Mr Cripps at that point and, again, Mr Cripps said, 'Look, I don't have anything more to say to you, I don't care. The exhibition is racist, the disclaimers stay.' And I said, 'Well, that's the prerogative of yourself and the gallery but it says more about the gallery and you than the show.' And I looked at Yolande and said, 'Yolande, do you think it's racist?' And she wouldn't make eye contact with me, she ... looked at the floor, she wouldn't respond. Mr Cripps said, 'That doesn't matter anyway, I'm the director, I say what goes into my gallery.' And I said, 'So, Yolande, do you agree with this, you agree it's racist?' And she didn't respond again. And he said, 'Look, finish what you're doing, I want you out of here and I want you out now.'

169 Ms Raymond added the following about her discussion with Mr Cripps near the 'Secular Muse' painting:

I described the painting to him, the visuals, and he said, 'Yes, but it's what it says about the Muslims, they're [not] the problem. It's the Jews that are the problem. The Jews should not be in Palestine'. I said, 'But where is that mentioned'. And he said, 'It's racist. It is the' - I then said to him, 'What about that painting behind us', and it was the painting [that] is known as De-Emphasis. ... That pretty harshly critiques Islam. It's a comment on ... passages in the Koran about woman, I said, 'What about that painting, does that bother you', and he shrugged and seemed to be quite dismissive of it. I said, 'Well, I don't understand, where is the racism? This is about critiquing religious doctrine', and he reiterated again and again that it was racist, that it was because of the Jews that the Muslims were reacting.

I said, 'But ... Robert, that in itself is racist, wouldn't you agree', and he said, 'Yes, so'. And I said, 'But how can it be racist for us to critique or for these works to critique the Koran and Islam but what you're saying, not racist and about the Jews', and he said, 'Well, they deserve it'. I said, 'What, we critique Christianity, we critique Judaism as well in the exhibition and it's only racist to critique Islam', and he acknowledged that this was the case and he said, 'They deserve it. They invade other people's lands and cause the conflict' ...

170 In cross-examination, Ms Raymond did not resile from her evidence in chief. She said that Mr Cripps 'raced across the floor yelling and striding across angrily with his arm outstretched' and that there were people behind him. She said that Mr Cripps was very loud, aggressive and angry prior to leaving and returning with Ms Pickett.

171 Mr Cripps gave evidence that, on 24 June 2009, the volunteers on the front door telephoned him to inform him that the Artists were in the Gallery. He said that he 'went down ... to talk with them.' He said that the conversation took place in the middle of the first floor.

172 In his evidence in chief, Mr Cripps described the conversation as follows:

I indicated to them that ... I'd requested that they contact me personally before they ... attended the gallery given the conflict that had happened and that ... as had already been indicated to them that the volunteers and none of the other staff wanted to deal with them so it was left for me to do it, and I really wanted them to have full use of the gallery, have full use of their exhibition but they really needed to correspond with me or ring me, and that was what I said to them quite clearly. And I would have been ... quite forceful in saying that to them.

[They said] that I had no right to ban them from the gallery ... I said I'm not banning you from the gallery ... They ... just said to me that they were really uncomfortable and they weren't happy and that I ... had no right to ... talk to them ... in the space.

173 In cross-examination Mr Cripps agreed that he said to Mr Vakras, 'You threatened me, Demetrios,' and told him that he was not frightened of him. Mr Cripps said this with his finger pointing at or near Mr Vakras' chest, while standing approximately one metre away. During that conversation, Mr Cripps' voice was raised. He was disturbed, animated, agitated, forceful and strong, but not angry with the Artists.

174 In cross-examination, Mr Cripps was taken to the following answer to an interrogatory from the Artists:

On or about 24 June 2009 I was working in the office on the second floor of the gallery when the volunteer greeting patrons at the front door rang to say that the [Artists] had entered the gallery on the way to their exhibition space on the first floor of the gallery. I went downstairs to the first floor space where the [Artists] were exhibiting their artwork. I said to [Mr Vakras] words to the effect that I had asked him to give us a ring when he was coming in and I said he had chosen not to do that.

175 The first factual issue that I must resolve is whether there was a warning sign on the landing between the ground floor and the first floor of the Gallery.

176 The Artists gave evidence that they saw such a sign whereas Mr Cripps denied that such a sign had been placed on the landing.

177 I find that a warning sign was not placed on the landing. This is largely because the existence of such a sign is not supported by the contemporaneous documents. In their emails after the meeting on 24 June 2014, the Artists referred to the Disclaimer but did not refer to any warning sign. Moreover, while Mr Vakras photographed the Disclaimer, no photograph with the warning sign has been produced.

178 It is true that Mr Vakras stated that Mr Cripps' behaviour prevented him from photographing the warning sign. However, I do not accept that this was the position. Mr Vakras had adequate time to take at least five photographs on the first floor on 24 June 2009.[45] I find that if the warning sign existed, Mr Vakras would have photographed it.

179 The First Vakras Article does not refer to a warning sign. The Raymond Article refers to a 'huge "WARNING" sign' but it does so on the false premise that the Exhibition was on the second floor of the Gallery rather than on the first floor. In any event, for the reasons I have already set out, that part of the Raymond Article is deliberately untrue.

180 The second factual issue that I must resolve relates to the interaction that took place between the parties on 24 June 2009.

181 The observations I made at [145] above about the meeting on 18 June 2009 also apply to the meeting of 24 June 2009.

182 Based on the facts that are not in dispute, my findings on the meeting of 18 June 2009 and for the reasons set out at [183] to [195] below, I find that it is likely that the events at the Gallery on 24 June 2009 were broadly as follows:

(a) The Artists arrived at the Gallery at approximately 4.15pm on 24 June 2009. They did not give any prior notice to anyone at the Gallery of their proposed visit. When the Artists arrived, they informed a volunteer on the ground floor that they were going to the first floor. The volunteer telephoned Mr Cripps, who was on the second floor of the Gallery, to inform him that the Artists had arrived at the Gallery.

(b) After arriving on the first floor, the Artists stood near the middle of the floor. As Mr Vakras commenced to set up his photographic equipment, Mr Cripps came down the stairs and approached them, walking at a normal pace. Mr Cripps said to the Artists in a firm tone 'I told you to call me before coming to the Gallery'. Mr Vakras became angry and said that Mr Cripps could not ban them from the Gallery, that they had paid to hire the space for the Exhibition and had a legitimate right to be there. Mr Cripps responded that he was not banning them from the Gallery, that they could have full use of the Exhibition space but that they had to ring him before coming to the Gallery.

(c) Mr Cripps said that Mr Vakras was threatening him but that he was not frightened of Mr Vakras. Mr Cripps was a metre from Mr Vakras and pointed his finger towards Mr Vakras' chest. Mr Cripps said that he had dealt with truckies and wharfies who were tougher than Mr Vakras.

(d) Ms Raymond asked Mr Cripps what aspects of the Exhibition prompted the Disclaimer. Mr Cripps said that it was Mr Vakras' essays. Ms Raymond asked Mr Cripps to give an example. Mr Cripps pointed to the 'Secular Muse' painting and the Secular Muse Essay. Ms Raymond asked Mr Cripps to show her the parts that concerned him and she and Mr Cripps then walked over to the painting and looked at the essay. Mr Cripps pointed to parts of the essay and repeated some of the comments he had made on 18 June 2009, including that the essay was too complex and difficult to understand, that it read like legalese and that it could be construed as being anti-Palestinian and racist. Ms Raymond said that she disagreed with Mr Cripps and discussed the themes in the painting and its surrealist features. Mr Cripps said that the Disclaimer would remain. Ms Raymond said that that was the Gallery's prerogative.

(e) While Mr Cripps was talking to Ms Raymond, Mr Vakras took out his camera and photographed Mr Cripps and Ms Raymond as they stood talking. That photograph appears in Exhibit P9. There is nothing unusual about the pose of Mr Cripps and Ms Raymond; they both appear to be engaging in a civilised conversation. Mr Vakras also took a photograph of the Disclaimer and a photograph of some of the paintings; these photographs appear in Appendix 1.

(f) During Mr Cripps' conversation with Ms Raymond, a female visitor came up the stairs to the first floor. At that point, Mr Cripps left the first floor. Ms Raymond spoke to the visitor about the Exhibition. The visitor said to Ms Raymond words to the effect that she liked the artwork and that she would return with her partner.

(g) After the visitor had departed the first floor, Mr Cripps returned there with Ms Pickett. Ms Raymond asked Ms Pickett whether she found the Exhibition racist. Ms Pickett did not respond. Mr Cripps said that he was the director of the Gallery and it was for him to decide its policies.

(h) The conversation between the parties concluded with Mr Cripps reiterating that they should give him prior notice when they proposed to visit the Gallery again.

183 As can be seen from the above findings, I have rejected key aspects of the Artists' evidence about what occurred on 24 June 2009. Those aspects are discussed below.

184 The first aspect of the Artists' evidence that I have rejected is their assertion that Mr Cripps ran towards them. This assertion is not supported by any contemporaneous documents, is not mentioned in the Impugned Articles and is entirely implausible.

185 The second aspect of the Artists' evidence that I have rejected is their assertion that Mr Cripps told them that they had breached the Hiring Agreement due to racism, that they were trespassing, that he wanted them and their racist artwork out of the Gallery and that he had called the Sherriff or the police. This evidence is not supported by any contemporaneous documents[46] and is entirely implausible.

186 The following statement in the Artists' email of 25 June 2009 to Mr Cripps is not a direct accusation that Mr Cripps said that the Artists breached the Hiring Agreement by claiming that they had committed a criminal act because of their racism:

you can not engineer, as it is evident you are engineering, a claim that we have [breached] some condition of exhibiting at the gallery, by claiming we have committed a criminal act because of our 'racism', or as it seems, 'attacked' you because you claim that being contradicted scares you!

187 The only relevant references to the meeting on 24 June 2009 in the Impugned Articles are as follows:

When Lee-Anne and I visited to photograph our exhibition on 25 June 2009, he followed us, harried us, ranting, ordering us out of our exhibition, even though we had a legal right to be there, and he had no legal means of executing his demand. He is a bellicose bully limited in erudition and of limited intellect.

...

His intimidatory behaviour included him walking to within a few inches of me to tell me that I threaten him, and thrusting his finger to within an inch of me to tell me he was frightened of me, and to tell me that I breeched our contractual agreement because he claimed that my art was racist. (A gallery visitor who was present witnessed these bizarre antics.) Rebuttals by Lee-Anne to Cripps' bizarre rants were met with the retort 'you are a sarcastic woman'. ... Cripps' conduct throughout was thoroughly disgraceful.

He stood an inch from my face and screamed at me in front of visitors to the gallery and gallery volunteers. When I moved back he moved forward. He did the same to Demetrios. He poked aggressively at our chests and shouted his foul abuse and we stood our ground.

...

There were at least 3 volunteers visible and in earshot of the incident I have referred to. Present as well was the paid Gallery Manager who during Cripps' tirade remained his silent lackey, saying and doing nothing of honour.

...

We only managed to take very few shots of the show as during our attempt to document the exhibition Robert Cripps proceeded to shadow us around our rented space declaring once more that Demetrios and the show were racist.

...

The content, it was claimed, was racist towards Islam alone ... Quotation from the Bible similarly prominent was undisputed and not a concern for Cripps. The point of logic presented to Cripps that Islam is multi-racial so criticism of the religion cannot be racial was rejected. He further claimed to be threatened by us and that neither could visit the space we hired without prior warning and that Demetrios was just not to come at all. Never mind that as renters we had a clear right to be present during business hours this was all declared by Cripps whilst inches from us in a posture one might find very contradictory to this claim (we couldn't back away he kept moving in). This occurred all in the presence of a visitor to the gallery whom we did not know, she remained although initially hesitated when coming upon the exchange, but then she stayed, read everything and she came to us when Cripps left the space to reassure us that there was nothing to his accusation, she could 'see what we were doing' and that the work was 'amazing' - she said she'd be back to see it more, I hope she did.

188 If Mr Cripps had said that he wanted the Artists and their artwork out of the Gallery, he would have taken steps to terminate the Exhibition. Alternatively, he could have requested the Artists to remove the essays because cl 5.h of the Hiring Agreement required prior consent to the installation of signs or other items.[47] Instead of taking any of these steps, Mr Cripps installed the Disclaimer and allowed the Exhibition to continue until the expiration of the Hire Period under the Hiring Agreement.

189 The third aspect of the Artists' evidence that I have rejected is their assertion that Mr Cripps came within two inches of Mr Vakras and pointed to his chest and that he was angry and aggressive. This evidence is not supported by any contemporaneous documents and is entirely implausible. Although, as appears from [187] above, the assertion is referred to in the Impugned Articles, the references are inconsistent. The First Vakras Article asserts that Mr Cripps came close to him and nearly poked him in the chest whereas the Raymond Article states that Mr Cripps did this to both Mr Vakras and Ms Raymond. Also, while the First Vakras Article states that there was a single witness, the Raymond Article states that the incident was witnessed by 'visitors' and 'at least 3 volunteers'. My conclusion is also supported by the photograph in Exhibit P9 to which I referred at [182(e)] above.

190 The fourth aspect of the Artists' evidence that I have rejected is their assertion that Ms Raymond asked Mr Cripps 'When did you [tell me to call you], was that before or after you kicked us out of the gallery and called our work and our exhibition racist' and that Mr Cripps responded: 'You are a sarcastic woman'. That question was not asked because Mr Cripps never 'kicked ... out' the Artists and he did not say that their work and the Exhibition were racist. It is possible that Mr Cripps described something that Ms Raymond said as sarcastic, but I am not satisfied that such a statement was made in the context suggested by the Artists' evidence or the Impugned Articles.

191 The fifth aspect of the Artists' evidence that I have rejected is that Mr Cripps repeated the statements he allegedly made on 18 June 2009 about 'legalese', the Koran, Palestine, Israel and racism to the Artists jointly. Given the aggressive reaction of Mr Vakras to the feedback Mr Cripps had provided only six days earlier, it is inconceivable that Mr Cripps would have engaged Mr Vakras in a further feedback discussion on 24 June 2009. Mr Cripps' conversation with the Artists jointly was brief[48] and he had a more detailed conversation with Ms Raymond alone.[49] Hitler and Nazism were not discussed on 24 June 2009.

192 The sixth aspect of the Artists' evidence that I have rejected is Ms Raymond's assertion that, when she and Mr Cripps were looking at the Secular Muse Essay, Mr Cripps described that essay and the Exhibition as a whole as racist and that in response to being told that his views were racist, Mr Cripps answered 'Yes, so'. Ms Raymond's evidence of the alleged exchange is very similar to the exchange that allegedly took place on 18 June 2009. It is highly unlikely that such a specific exchange would have been repeated. In any event, as I have found that it did not take place on 18 June 2009, for similar reasons, it also did not occur on 24 June 2009.

193 The seventh aspect of the Artists' evidence that I have rejected is Ms Raymond's assertion that the female visitor to the first floor of the Gallery heard parts of the Artists' conversation with Mr Cripps, that Ms Raymond told her 'I'm sorry you had to hear that' and that the visitor said 'I don't know what he's on about, I've read everything and I don't understand. It's excellent'. This alleged conversation is not supported by the contemporaneous documents or the Impugned Articles. As can be seen from [187] above, the First Vakras Article merely states that '[a] gallery visitor who was present witnessed these bizarre antics' without referring to a conversation between the Artists and the visitor. The Raymond Article, which was published after the First Vakras Article, purports to record a conversation which is different from the conversation in Ms Raymond's evidence. The references to Mr Cripps in the conversation were made up by Ms Raymond to support the Artists' case.

194 I find that Mr Vakras' evidence at [167] above was made up by him. The allegation that Mr Cripps agreed that he hates Jews is a blatant lie.

195 I reject the statements in the Impugned Articles that are inconsistent with my findings because the statements are self-serving, contradictory and deliberately false. The false statements are: that Mr Cripps ordered the Artists out of the Exhibition; that Mr Cripps said that the artwork was racist; that anyone other than one female visitor was present during the conversation prior to the arrival of Ms Pickett; that Mr Cripps poked aggressively at the Artists' chests; and that the female visitor said that there was nothing to Mr Cripps' accusation.[50]

Did Mr Cripps sexually harass female staff or volunteers?

196 The only witness called by the Artists who gave evidence that Mr Cripps had sexually harassed female staff and volunteers was Ms Emily Biggs-Kocaj. She said that she had worked at the Gallery from September 2009 until February 2010. At the end of 2009, she observed Mr Cripps interacting with two female Gallery volunteers, Ms Hua (that is, Ms Li) and Ms Bui. Mr Cripps bought them meals and made comments such as 'these are my girlfriends', or about what they were wearing. Ms Biggs-Kocaj continued:

And I'll just note that these two young ladies were international students, their language skills at that stage were probably still advancing so they might not have had a great degree of comprehension of the subtext in terms of the conversation. I personally made a comment to Mr Cripps about this conduct, commenting that I thought it was inappropriate to these young ladies, and he said something along the lines, and I can't remember exactly the words, but that they enjoyed it.

197 Mr Cripps denied that Ms Biggs-Kocaj had ever told him that his conduct towards Ms Li and Ms Bui was inappropriate or that he had said that they enjoyed it. He also denied that he had ever made inappropriate sexual statements to any female member of staff or any volunteer or that he had touched any of them in an inappropriate manner. He agreed that he often bought Ms Li and Ms Bui a meal and occasionally complimented them on their appearance. He denied that he had ever behaved inappropriately towards them. He said that he remained on good terms with Ms Li and Ms Bui. He added that Ms Bui had worked for him 'up to a month ago', that she recently had her wedding reception at Ruby's and that she was currently in Vietnam.

198 Ms Li gave the following evidence. She arrived in Australia from China in February 2009. In 2010 and 2011, she worked as a part-time volunteer at the Gallery. At that time, her English language skills were very basic. Mr Cripps never touched her, spoke to her or behaved in any way that made her feel uncomfortable. He was friendly and bought her and Ms Bui a meal about once every fortnight. Quite often Mr Cripps said that she looked 'gorgeous'. In cross-examination, Ms Li denied that Mr Cripps ever said that she and Ms Bui were his girlfriends. She agreed that, at times, she did not understand statements that Mr Cripps made to her. When this occurred, Mr Cripps repeated what he had said slowly to enable her to understand.

199 Mr Gilbertson submitted that I should accept the evidence of Ms Biggs-Kocaj. He also submitted that Ms Li and Ms Bui had been sexually harassed by Mr Cripps without their knowing this because their poor English language skills meant that they did not understand the subtext of Mr Cripps' comments.

200 I reject Mr Gilbertson's submission. While Ms Li gave evidence with a noticeable accent and often paused to find the right English words, she understood perfectly well the purport of the questions she was being asked and answered them accordingly. She struck me as a very intelligent and robust young woman who, despite difficulties with the English language, would have correctly interpreted any unwelcome sexual advance by Mr Cripps. It was clear from her evidence that she enjoyed her experience at the Gallery and her interactions with Mr Cripps and that she continued to hold him in high regard. Her evidence and demeanour would have been entirely different had she been sexually harassed by Mr Cripps.

201 Ms Bui's failure to give evidence was explained by her absence overseas. I accept Mr Cripps' evidence that he has remained on good terms with her and that she recently had her wedding reception at Ruby's. Ms Bui would not have remained on good terms with Mr Cripps or had her wedding reception at Ruby's if she had been a victim of sexually harassing behaviour by Mr Cripps.

202 I reject Ms Biggs-Kocaj's evidence insofar as it suggested that Mr Cripps sexually harassed Ms Li or Ms Bui.

203 On the basis of the above discussion, I am satisfied that Mr Cripps did not at any time behave towards any female staff or volunteers in any manner that was inappropriate or which could be construed as constituting sexual harassment.

204 Ms Katherine Bowman gave the following evidence. She held an exhibition at the Gallery in January 2010 and conducted a site visit before Christmas 2009. At the site visit she observed that the Gallery space did not have ceiling fans. The work she prepared for her exhibition involved delicate material hanging from the ceiling. The artwork was intended to respond to no more than 'ambient' airflow as viewers walked past. On the opening night of her exhibition, Ms Bowman observed four large ceiling fans 'buffeting' the artwork. She told Mr Cripps that this was 'not particularly good' for the artwork, and he commented: 'that's the way it is'.

205 Ms Bowman said that, on 10 January 2009, she attended the Gallery to attempt to find a solution to the problem of the ceiling fans. Mr Cripps approached her and asked to speak to her in private. Mr Cripps then proceeded to berate her angrily, asserting that she had told the Gallery manager that Mr Cripps was 'unprofessional'. Ms Bowman continued:

To an assertion that I had told the gallery manager that he was unprofessional, that I, myself was unprofessional, that I had consumed a lot of everyone's time, that I was a nobody, that he belittled me in terms of not having seen that they were fans, overhead fans when I was a visual artist and that was something ... that I should have noticed and I was taken aback by this barrage of insult that impinged on my personal space. I was surprised and alarmed at the ferocity of his attack on me. He called me a liar repeatedly when I said that I had not called him unprofessional and I was left perplexed by why he would want to attack me in such a way. I remained civil and polite during this tirade and at the end of it I requested an opportunity to respond to which he responded that he had no interest in what I had to say and walked away.

206 Mr Cripps did not give evidence about his dealings with Ms Bowman.

207 Ms Courtney Kim gave the following evidence. She curated an exhibition at the Gallery in April and May 2010. The exhibition was on human rights in North Korea. She sold around five artworks during her exhibition with a total value of approximately $4,800. She emailed Gallery staff to ask about payment, and was instructed to send the Gallery an invoice. She waited for a couple of months before she was paid. She was asked a number of times to give evidence on behalf of the Artists, but she was 'a little bit reluctant' because 'it was a long time ago'. She believed she would not be able to assist the Artists and did not want to 'drag this on'.

208 Mr Cripps gave evidence that, after Ms Kim's exhibition, she was owed money by the Gallery for artworks sold during that exhibition. Mr Cripps could not recall the amount owed. He accepted that he received emails from Ms Kim demanding payment of the money, stating that the timeframe was 'unreasonable'. He could not recall how much time passed before Ms Kim was ultimately paid.

209 Mr Albert Mishriki gave the following evidence via audio visual link. He co-curated an exhibition at the Gallery in January 2009. The exhibition was to comprise live sound performances at the Gallery once per month over a period of six months. The performances were to occur amongst exhibitions of other artists' work. Mr Mishriki and his co-curator were not permitted to collect a door charge from persons attending these performances as Mr Cripps had decided to have a bar serving alcohol during the performances. Mr Mishriki and his co-curator suggested to Mr Cripps that there need not be a bar at these events, and Mr Cripps became visibly angered and yelled that he had decided to have a bar 'and hence he was going to have a bar.'

210 Mr Mishriki said that, after seeking legal advice about the contract regarding the use of the Gallery, he asked that the 'contract be made more reasonable'. Ms Pickett agreed to discuss the matter with Mr Cripps. Mr Mishriki did not hear anything further about the contract until the night before the first scheduled performance. He was installing his exhibition at the Gallery when Mr Cripps came down the stairs yelling that Mr Mishriki was going to sign the contract on the spot, saying: 'I'm not going to fuck around any more, no more bullshit, you're going to sign this contract right now.'

211 Mr Mishriki said that he did not sign the contract, but had a verbal agreement with the Gallery that the Gallery would provide a sound system. He sought Mr Cripps' approval with regard to the manner in which he had plugged in that sound system. Mr Cripps then started to yell 'about all kinds of irrelevant information'. When Mr Mishriki plugged in the sound system, it blew a fuse. He offered to replace the fuse, and Mr Cripps told him he could go ahead with one speaker the following day. When Mr Mishriki returned ready to perform the next day, the entire sound system had disappeared. As the exhibition had been designed with a sound system in mind, certain things could not be done, and the 'whole form' of the exhibition was compromised. After the opening night, Mr Mishriki did not proceed with his exhibition at the Gallery because Mr Cripps' behaviour was 'impossible'.

212 Mr Cripps did not give evidence about his dealings with Mr Mishriki.

213 Mr Gavyn Mickelson gave the following evidence. He was working as a life model and made an agreement with Mr Cripps that in May 2010 he would have two sittings at art classes to be conducted at the Gallery. Mr Cripps told him he would be paid $30 per hour, on completion of the second sitting. For the first sitting, he rode his bicycle to the Gallery and left it in the reception area.

214 Mr Mickelson said that, when he arrived for the second sitting, Mr Cripps prohibited him from leaving his bicycle in the Gallery and insisted that it be left outside, chained to window bars that were at approximately shoulder height off the ground. Mr Mickelson could not have lifted the bicycle to hang it at that height on his own. The conversation 'got very aggressive very quickly.' Mr Mickelson refused to leave his bicycle there and Mr Cripps said to him: 'Well that's it then, it's cancelled.' Mr Mickelson did not proceed with the second sitting. Mr Cripps did not pay him for either sitting. Mr Mickelson made a claim at VCAT and was eventually paid $60.

215 Mr Cripps did not give evidence about his dealings with Mr Mickelson.

216 Ms Josie Waddelton gave the following evidence. She had an exhibition at the Gallery in around August 2010, which ran for two to three weeks. At the beginning of her exhibition, there were some drinks on a table in the bar area and glasses to be filled. One of her friends started to pour himself a glass, and Mr Cripps 'flew into a rage', saying something like 'how dare you.' At the end of her exhibition, on a day when the Gallery was open, she attended with friends and family to remove her exhibition. Another group was using the Gallery and she was told to leave.

217 Mr Cripps did not give evidence about his dealings with Ms Waddelton.

218 Ms Sarah Curro gave the following evidence. She is a professional violinist with the Melbourne Symphony Orchestra and first met Mr Cripps in December 2009. She held two performances at the Gallery in 2011. She became aware of and skimmed either the First Vakras Article or the Second Vakras Article in or around July 2013. She said that the article 'was so kind of disturbing that [she] just set it aside because it wasn't [her] relationship with [Mr Cripps] at all.'

219 Mr Nicholas Murray gave the following evidence. He is an architect and sound designer and met Mr Cripps in around May or June 2010. Mr Murray was then undertaking a PhD at RMIT, and his final examination was in the form of an exhibition to be held at the Gallery. He described his dealings with Mr Cripps as 'professional'.

220 Ms Elizabeth Paul gave the following evidence. She has known Mr Cripps for five years. She organised an exhibition at the Gallery in November 2009, which featured works by 250 jewellers. She coordinated the exhibition, which 'went really well', with 'great help' from the Gallery staff. She described the exhibition overall as very successful. Following the exhibition, she and Mr Cripps became friends.

221 Mr Stephen Sedergreen gave the following evidence. He is a musician and music teacher. He has known Mr Cripps since around 2008, and was invited to perform as a solo pianist at the Gallery. He performed there at regular workshops until the Gallery closed. Mr Sedergreen dealt with Mr Cripps directly. Mr Sedergreen is Jewish and had not heard that Mr Cripps was 'a racist' or 'anti-Semitic'.

222 The evidence of the nine artists, exhibitors and performers set out at [204] to [221] above and the evidence of the Artists may be summarised as follows: of the 11 individuals, only Ms Bowman, Mr Mishriki and the Artists alleged that Mr Cripps' conduct adversely affected their exhibition or performance; only Ms Kim, Mr Mickelson and the Artists alleged that Mr Cripps did not pay them on a timely basis; and only Ms Bowman, Mr Mishriki, Mr Mickelson, Ms Waddelton and the Artists alleged that Mr Cripps was rude to them.

223 I accept the evidence of Ms Bowman and Mr Mishriki that Mr Cripps' conduct adversely affected their exhibition and performance, respectively. However for the reasons set out at [233] to [242] below, I do not accept the Artists' evidence to this effect. I accept the evidence of Ms Kim, Mr Mickelson and the Artists that Mr Cripps did not pay[51]hem on a timely basis.51 Finally, while I accept the evidence of Ms Bowman, Mr Mishriki, Mr Mickelson and Ms Waddelton that Mr Cripps was rude to them, I do not accept the Artists' [52]idence to this effect.52

224 Having regard to the evidence and the discussion at [204] to [223] above, I find that in 2009 and 2010 Mr Cripps had a tendency to speak his mind and that he sometimes clashed with, and upset, some of the exhibitors and artists with whom he dealt. At times, his conduct also adversely affected the exhibitions and performances at the Gallery. However, Mr Cripps was very proud of the Gallery. He spent approximately $1 million in refurbishing it and, as a businessman he was keen to ensure it was a commercial success. The Gallery was established in 2008. By the time the Artists lodged their Exhibition Proposal in August 2008, the Gallery had already attained a reputation as an excellent space for exhibitors. It was not in Mr Cripps' interests to mistreat exhibitors and there is no basis for a finding that he habitually did so. In the majority of cases Mr Cripps treated the artists and exhibitors with respect and helped ensure that their exhibitions or performances at the Gallery were successful. He was well liked by most exhibitors and performers, some of whom became his friends or business associates.

225 The sixth edition of the Macquarie Dictionary relevantly defines 'racism' as follows:

the belief that human races have distinctive characteristics which determine their respective cultures, usually involving the idea that one's own race is superior and has the right to rule or dominate others ... a policy or system of government and society based upon such a belief ... behaviour or language based upon this kind of belief in relation to a person or persons of a particular race, colour, descent or national or ethnic origin, either demonstrating an inherent prejudice without specific hostile intent or intended to offend, insult, humiliate or intimidate. Also ... -racist, n. -racist, adj.

226 The sixth edition of the Shorter Oxford Dictionary defines 'racism' as follows:

(Belief in, adherence to, or advocacy of) the theory that all members of each race possess characteristics, abilities, qualities, etc., specific to that race, esp. distinguishing it as inferior or superior to another race or races; prejudice, discrimination, or antagonism based on this.

227 Mr Cripps gave the following evidence that is relevant to whether he is a racist. He disagrees with what is happening in Palestine and believes that unequal force is being used by the Jewish state, or Israel, against the Palestinian people. He does not like what the 'Jewish state is doing in Palestine.' Mr Cripps accepted that there have been a number of problems and significant conflict in Palestine in the past and that the situation in Palestine is delicate.

228 When Mr Cripps was questioned about racism and anti-Semitism, he said that he is not a racist, and the allegation that he is a racist 'really hurt'. He said that he has never been racist in anything that he does and that this caused him particular concern: 'It's just so inappropriate. I build things, I don't tear things down.' Mr Cripps said that he does not 'hate Jews', stating:

Most of my customers in Redleg were Jewish people, the good majority of my customers. A great deal of the musicians I currently work with have a Jewish background. I have really good relationships with people of all nationalities.

229 I have already concluded that at the 18 and 24 June 2009 meetings, Mr Cripps did not express racist or anti-Semitic views.

230 Based on this conclusion and the evidence of Mr Cripps,[53] Ms Paul[54] and Mr Sedergreen,[55] I find that Mr Cripps is not a racist or an anti-Semite and that he never expressly or impliedly stated that he was a racist or an anti-Semite. All that the evidence established was that, in his conversations with the Artists, Mr Cripps expressed disagreement with the policies of the State of Israel in Palestine. To express disagreement with Israel's territorial policies, and even to say that those policies give rise to retaliatory action by Palestinians, is not equivalent to hating Jewish people.

231 The Artists allege that Redleg committed the following breaches of the Hiring Agreement:

(a) Redleg prevented the Artists from having access to the Gallery in accordance with the Hiring Agreement.

(b) Redleg did not make the 'Open Studio' on the first floor of the Gallery available to the Artists.

(c) Redleg refused to sell the Catalogue or make it available for sale at the Gallery.

(d) Redleg breached its implied duty of good faith or its implied duty of cooperation in the performance of the Hiring Agreement by:

(i) the breaches to which reference has already been made;

(iii) Mr Cripps' statements and conduct at the meetings on 18 and 24 June 2009; and

(iv) placing the Disclaimer on the first floor of the Gallery.

(e) Redleg failed to pay the Sale Proceeds and the Bond at the end of the Exhibition.

233 Redleg did not prevent the Artists from having access to, and use of, the Gallery in accordance with the Hiring Agreement. The Hiring Agreement was not a lease which entitled the Artists to exclusive possession of any part of the Gallery. Rather, it provided a contractual licence for the Artists to use the first floor of the Gallery for the purposes of the Exhibition. The Gallery was a multi-storey building and, during the Exhibition, Redleg conducted other activities in the building. The Artists were not entitled to - and were not given - keys to any part of the building. It must follow that whenever the Artists visited the Gallery, there would be staff or volunteers present.

234 Further, under cl 4.c of the Hiring Agreement, the Artists were entitled to have access to the first floor of the Gallery at times and on days that the Gallery was not open to the public.[56] Obviously, at such times and on such days, the Artists could only enter the Gallery by prior arrangement with Mr Cripps.

235 At [146] above, I found that, on 18 June 2009, Mr Vakras became aggressive and abusive towards Mr Cripps. I also found that some of the staff and volunteers who witnessed Mr Vakras' behaviour informed Mr Cripps that they felt uncomfortable around Mr Vakras. Having regard to the events on 18 June 2009, it was entirely reasonable, and not inconsistent with the Hiring Agreement, for Mr Cripps to inform the Artists that they should give him prior notice of any proposed visit to the Gallery in the future. In my opinion, neither the statements made by Mr Cripps to the Artists on 18&#1[57]June 200957 and 24&#1[58]June 200958 nor Mr Cripps' email of 26&#1[59]June 200959 constitutes a breach of the Hiring Agreement. Further, these actions do not, either singularly or collectively, amount to an effective exclusion of the Artists from the Gallery from 18 June 2009.

236 In relation to the alleged breach constituted by Redleg's failure to make the 'Open Studio' available to the Artists, I find that no such breach occurred because there was no evidence that the 'Open Studio' was not available for the use of the Artists during the Exhibition.

237 In relation to the alleged breach constituted by Redleg's failure to sell the Catalogue or make it available for sale at the Gallery, it follows from my conclusion that Redleg had no such contractual obligation either under the Hiring Agreement[60] or any so-called collateral contract,[61] that no such breach occurred. In fact, copies of the Catalogue were available for sale by the Artists during the Exhibition.[62] In this regard, I reject Ms Raymond's evidence that when she arrived at the Gallery on 17 June 2009, Stacy Jewell told her that the Artists would not be able to sell or store the Catalogue at the Gallery. I also reject Mr Vakras' evidence that Ms Jewell said that the Artists could not store the Catalogue at the Gallery.

238 In relation to the alleged breach of the implied terms to act in good faith or to cooperate in the performance of the Hiring Agreement, the first issue I need to resolve is whether such a term is to be implied into the Hiring Agreement.

239 This Court has been reluctant to imply an obligation of good faith or an obligation of cooperation that extends beyond a contracting party's duty to act reasonably in performance and enforcement of a contract, as a matter of course. Ordinarily, the implication of such obligations must meet the tests laid down in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council.[63] This Court may be more willing to imply such obligations on an ad hoc basis in particular cases to protect a party suffering a disadvantage or who is vulnerable from exploitative conduct which subverts the original purpose for which the contract was made.[64]

240 In the present case, the tests in BP are not satisfied, primarily because the alleged implied terms would be inconsistent with cl 11.c of the Hiring Agreement.[65] Also, there is nothing in the circumstances of the present case which, consistent with the principles discussed above, would warrant the implication of obligations of good faith or cooperation in the Hiring Agreement.[66] However, even if such obligations were to be implied, there would not have been any basis for a finding that Redleg breached them.

241 I have already rejected the alleged breaches of the Hiring Agreement. I have also rejected the allegation that Mr Cripps berated Ms Raymond on 5 June 2009.[67] There was nothing in the conduct of Mr Cripps on 5, 18 or 24 June 2009[68] which constituted a breach of the Hiring Agreement or which would have breached the duty of good faith or the duty of cooperation had those duties been implied into the Hiring Agreement.[69]

242 The Disclaimer was legally unobjectionable because it said no more than was obvious. It is true that the Gallery had not used a similar disclaimer in relation to any previous exhibition and that the Disclaimer was installed after the Exhibition had commenced. Mr Cripps obviously decided to install the Disclaimer after the opening night on 18 June 2009, when he informed Mr Vakras of his concerns about the potentially offensive statements in Mr Vakras' essays and Mr Vakras rejected his suggestion to add a short document which explained Mr Vakras' paintings in simple English. Further, although Mr Vakras complained of many things in the Artists' email of 25 June 2009 and his email of 26 June 2009,[70] he did not complain about the Disclaimer. On the contrary, he stated that '[t]he signage is your prerogative'.[71] In the Raymond Article, Ms Raymond states that the Disclaimer and the alleged 'WARNING' sign caused damage, 'cast a pall over the content and therefore overall reception of the show', were 'a complete sabotage' and 'I wonder how many turned around and left the space when coming upon the disclaimers'. These comments are mere speculation. I am not satisfied on the evidence that the Disclaimer adversely affected interest in the Exhibition or sales of the Artists' artwork.[72]

243 In relation to the alleged breach of the Hiring Agreement constituted by Redleg's failure to pay the Sale Proceeds and the Bond to the Artists at the end of the Exhibition, I find that by failing to make such payment within a reasonable time after the end of the Exhibition, Redleg breached the Hiring Agreement.

244 Clause 2.b of the Hiring Agreement provided that the Bond was 'refundable at the end of the Hire Term' subject to compliance with cll 9.a and 9.b. It was common ground that the 'Hire Term' ended on 5 July 2009 and that the Artists complied with cll 9.a and 9.b. In my opinion, cl 2.b did not require payment on the day the Hire Term ended but rather, within a reasonable time after that day in order to allow Redleg time to assess the physical condition of the hired space and to process the payment. On that basis, the Bond amount of $500 should have been paid to the Artists by Monday 20 July 2009. This period of 14 days coincides with Ms Pickett's statement in her email of 7 July 2009 to Ms Raymond that the Gallery generally informed exhibitors that it processed payments within 14 days after the closing date of an exhibition.[73]

245 The Hiring Agreement did not contain any express provisions for the Gallery receiving any sale proceeds. However, the parties orally agreed that the amount of $450 for the sale of one of Mr Vakras' paintings would be received by the Gallery.[74] In those circumstances, Redleg was subject to an implied obligation to pay the above amount, and any other proceeds of the sale of any other paintings of the Artists, to the Artists within a reasonable time after the end of the Exhibition.

246 Mr Cripps gave evidence that the industry practice was for galleries to pay to exhibitors the proceeds of sale of their artwork within three months. He implied that the Gallery followed this industry practice. In the present case, however, that industry practice was not followed because Ms Pickett represented to Ms Raymond that payment should be expected within two weeks after the end of the Exhibition.

247 In all the circumstances, both the Sale Proceeds and the Bond should have been paid by Redleg to the Artists by 20 July 2009. However, those amounts were not paid until 13 August 2009. I find that the reason for the delay was Mr Cripps' desire to obtain a written release from the Artists. As the Artists had no obligation under the Hiring Agreement to provide any release, Mr Cripps had no legal basis to delay payment of the amount of $950 beyond 20 July 2009.

Did Mr Cripps induce Redleg to breach the Hiring Agreement?

248 The claim against Mr Cripps for inducing Redleg to breach the Hiring Agreement is misconceived. As Mr Cripps was the sole director and company secretary of Redleg and it was his conduct which was said to constitute the breach of the Hiring Agreement by Redleg, Mr Cripps cannot be liable for the same conduct pursuant to the tort of inducing that breach.[75]

249 The Artists claimed damages for breach of contract for wasted expenses incurred for the Exhibition, in the total amount of $13,448.80, less the Sale Proceeds of $450, and the loss of chance to sell more artwork during the Exhibition. The amount of $13,448.80 comprises the following:

$3,960.00 hire of the Gallery

$2,384.26 art materials

$407.00 promotional

$3,740.00 printing of catalogue

$1,054.53 other printing

$1,350.00 art works framing

$251.19 transportation

$301.82 miscellaneous

$13,448.80 Total

250 There was no real dispute that the above expenses were incurred by the Artists. However, the bases upon which the above amounts were said to be recoverable as damages were unclear. The Artists had, and continue to have the benefit of some of the above items, such as copies of the Catalogue, the art materials that were used to create any of the artwork and the artwork frames. Some of the expenses may have been recoverable if the Artists had alleged that there had been a total failure of consideration, but such an allegation was not made and could not have been sustained.

251 I have concluded that the only breach of contract that Redleg committed was its unauthorised withholding of payment of the amount of $450 to Mr Vakras and the amount of $500 to the Artists between 21 July 2009 and 12 August 2009, a period of 23 days. Accordingly, it is not necessary for me to analyse the recoverability of the items set out at [249] above. It is also not necessary for me to assess the value of the Artists' alleged loss of opportunity to sell their artwork. Had I been required to make such an assessment then, based on the Artists' history of ar[76]ork sales,76 I would have concluded that no additional paintings would hav[77]been sold.77

252 As the Artists were deprived of the use of the funds set out at [251] above, the appropriate amount of damages is interest. The parties did not make submissions on an appropriate rate of interest. Given the small amounts involved, I need to do the best I can, with the evidence and submissions that the parties made, to assess damages.

253 For convenience, I will assume an interest rate of 10% per annum is appropriate. I will also assume that Mr Vakras was deprived of $450 for 23 days between 21 July 2009 and 12 August 2009 and that the Artists were deprived of $500 for the same period. Accordingly, I assess the damages payable to Mr Vakras at $2.83 and the damages payable to the Artists jointly at $3.15.

254 In the Contract Proceeding, I will order that Redleg pay to Mr Vakras the amount of $2.83 and that Redleg pay to the Artists jointly the amount of $3.15. I will hear from the parties on the precise form of the order that the Court should make and on the question of costs.

255 As the Defamation Proceeding involves two plaintiffs, two defendants and the three Impugned Articles, I will consider separately Mr Vakras' liability to Mr Cripps under the Vakras Articles, Mr Vakras' liability to Redleg under the First Vakras Article, Ms Raymond's liability to Mr Cripps under the Raymond Article and Ms Raymond's liability to Redleg under that article.

256 The Artists admitted that the Impugned Articles were of and concerning Mr Cripps. While the Artists formally denied identification in relation to Redleg, the First Vakras Article and the Raymond Article refer to Redleg. The First Vakras Article also contains a screenshot of Redleg's homepage on the website www.redleg.com.au. There is no doubt that the First Vakras Article and the Raymond Article were of and concerning Redleg.

Mr Vakras' liability to Mr Cripps: First Vakras Article

257 The evidence of publication of the First Vakras Article on and from 1 April 2010,[78] which I accept, is summarised below.

258 Mr Cripps gave evidence that he first became aware of, and read, the First Vakras Article a couple of months after the Exhibition, when Colin Reid, a volunteer at the Gallery, sent information about that article to the Gallery, asking 'Have you guys seen this?' He said that '[a]ll of the gallery staff talked about it all the time' and that his 'friends talked about it to [him]'. He said that volunteers were crying and Gallery staff were 'really upset'. Mr Cripps stated that a number of people had told him that there 'must be some truth in the articles'.

259 Mr Cripps said that Mr Michael Tortoni, the operator of the Bennetts Lane Jazz Club - which is near Ruby's - told him that he was aware of the Impugned Articles. As appears from [635] below, Ms Sandy Tortoni referred to the First Vakras Article in her letter of objection to Mr Cripps' application for a liquor licence for Ruby's. I infer that Mr Tortoni and Ms Tortoni read the First Vakras Article.

260 It will be recalled from [218] above that Ms Sarah Curro is a professional violinist who held two performances at the Gallery in 2011. She gave evidence that she became aware of and skimmed either the First Vakras Article or the Second Vakras Article in around July 2013 when a friend from the Melbourne Symphony Orchestra sent it to her.

261 It will be recalled from [220] above that Ms Elizabeth Paul organised an exhibition at the Gallery in November 2009. She gave evidence that, following the exhibition, Mr Cripps told her that there had been a problem and that the Artists had put some material on the internet. Ms Paul conducted Google searches for 'Guildford Lane Gallery' and 'Robert Cripps' and found the First Vakras Article. Mr Cripps contacted her again to tell her that there had been an addition to one of the articles, and she then looked at the material again. Ms Paul saw all three of the Impugned Articles. She probably checked back to look at them five or six times, at intervals of a couple of months, to see whether any further information had been added. She reached the Impugned Articles each time by Googling Mr Cripps' name.

262 Ms Paul has heard other people discussing the Impugned Articles. She stated:

We've discussed it with friends of Robert's but other people have contacted me, friends of mine who have Googled Robert's name or the gallery to have a look at it, have a look at what had been on at the gallery, have a look at the gallery space and they had come across these articles as well. ... They were concerned that something like this would be about somebody on the internet that if I knew Robert what did I think of it and was any of it true.

263 Ms Danuta Czarski gave the following evidence. She has known Mr Cripps for six years. They dated from 2009 for about one and a half years and then remained close friends. She viewed the First Vakras Article in early 2010, probably in February, March or April. She has seen it since that time, in a similar form. Ms Czarski reviewed the article on a number of occasions 'mostly' when requested by Mr Cripps, for the purpose of ascertaining whether any changes had been made to the article. She did this between five and 10 times in the four year period from 2010.

264 Mr Stephen Sedergreen gave evidence that he had seen the Impugned Articles but had not read them.

265 During the course of the trial, Mr Dibb, who appeared for the Defamation Plaintiffs, conducted Google and Bing searches using the name 'Robert Cripps'. The Google search was conducted at 7.45am on 19 March 2014 and a printed copy of the results became Exhibit P11. The first website result is an article titled 'Redleg Museum Services run by Robert Cripps sues artists' and is hosted on www.redlegvartists.com, a website largely maintained by Mr Vakras.[79] The second result is unrelated to this proceeding. The third result is an article titled 'Vakras & Raymond VCAT claim against Robert Cripps ...', hosted on the website www.humanisttranshumanist.com. The ninth result is an article titled 'About the exhibition at Guildford Lane Gallery, Melbourne' and is hosted on a separate website created by Mr Vakras.[80] It is a version of the First Vakras Article and became Exhibit P14.

266 The Google search also produced five image results, three of which are of Mr Cripps. The second and third images depict Mr Cripps' face with a 'cancel' sign superimposed over it.[81] Mr Vakras gave evidence that the second and third images originated from websites maintained by the Artists.

267 The Bing search was also conducted on 19 March 2014. It was initially performed on Mr Dibb's laptop computer, and a printed copy became Exhibit P15. The first result for the Bing search is the same as the third result of the Google search. The second result is an article hosted on Mr Vakras' website titled 'About the exhibition at Guildford Lane Gallery, Melbourne'. It is the First Vakras Article. The tenth result is an article hosted on Ms Raymond's website titled 'guildford-lane-gallery exhibition Humanist Transhumanist'. It is the Raymond Article. The other results are not relevant to this proceeding.

268 In Trkulja v Yahoo! Inc LLC,[82] Kaye J stated that judicial notice can be taken 'that the use of the internet, to ascertain information about particular people, is now commonplace.'[83]

269 In cross-examination, Ms Raymond agreed that 'people routinely Google' and said that she does that herself. She also agreed that she knew that her website and the extensive material that she had published on the internet 'was likely to be published to anyone who wanted to know what the world was saying about Mr Cripps'. She said that she had used internet search engines '[o]nce or twice but not recently' to see 'where [her] material figures in a result on [Mr Cripps'] name'. She agreed that she had 'done searches and seen that [her] website shows up as being a result if you search for Mr Robert Cripps.' She also agreed that Googling people has been part of modern life for some years and said that it is 'part of the information age'.

270 In cross-examination, Mr Vakras said that he had performed Google searches for some of his pages. He also said that he used Google and Bing to search 'Guildford Lane' in January 2014. He agreed that people routinely Google others and that it was 'quite likely' that the Impugned Articles would be visible to anyone who made any inquiry on the internet using the name Robert Cripps.

271 Mr Gilbertson submitted that a person who undertakes a Google or Bing search for 'Robert Cripps' is not a casual web surfer but someone who either knows Mr Cripps or wants to find information about him. Mr Gilbertson added that, even if this were wrong, the Court should be cautious in drawing inferences from the Google search that Mr Dibb carried out during the trial because:

(a) there was no evidence about how Google ranks its results;

(b) the search showed the Artists' mirror site[84] was the ninth result;

(c) Mr Cripps gave evidence that the Gallery had a website prior to January 2014 and that Ruby's had websites prior to March 2014; and

(d) neither the first entry on the Google search (www.redlegvartists.com/

director.html) nor the third entry (www.humanisttranshumanist.com/

vakras-raymond-VCAT-claim.html) contains links to the websites www.vakras.com or www.leeanneart.com or to the mirror site.

272 Mr Gilbertson contended that it would be speculative for the Court to conclude from Mr Dibb's search that a casual web surfer would be referred to the Artists' webpages from a Google search.

273 Mr Gilbertson submitted that there was no evidence and nothing notorious from which the Court can infer anything material about a 'Bing' search.

274 In relation to the evidence of publication, Mr Gilbertson pointed out that Ms Curro was referred to the First Vakras Article by a friend; Ms Paul said that she conducted a Google search after she was told by Mr Cripps that items had been placed on the internet; and Ms Czarski said that she would look at the website every time Mr Cripps told her that some action had been taken.

275 Based on the above evidence and discussion, I make the following findings about the publication of the First Vakras Article on and from 1 April 2010:

(a) The article was read by: Mr Tortoni; Ms Tortoni; Ms Curro; a member of the Melbourne Symphony Orchestra; Ms Paul; friends of Mr Cripps; several of Ms Paul's friends; Ms Czarski; and Ms Kim.[85] Mr Sedergreen saw the article but he did not read it.

(b) Mr Tortoni and Ms Tortoni, the member of the Melbourne Symphony Orchestra, friends of Mr Cripps, friends of Ms Paul, and Mr Sedergreen saw the article without any prompting from anybody else.

(c) Mr Tortoni, Ms Tortoni, the member of the Melbourne Symphony Orchestra and friends of Ms Paul had no direct relationship with Mr Cripps.

(d) Ms Paul and her friends accessed the article by Googling Mr Cripps or the Gallery.

(e) It is highly likely that in the period from 1 April 2010 until now, a large number of people have read the article. Some of them did so because they actively searched for the article by using a search engine such as Google or Bing or otherwise. However, I infer that some did so randomly by 'surfing' the internet or by following links that ultimately took them to the article. It is not possible for me to make a specific finding on how many people - in addition to those already referred to above - read the article and what proportion did so after deliberately searching for it or after randomly finding it.

276 As can be seen from [275] above, I have not accepted Mr Gilbertson's submissions.

277 The meaning of the words in the Impugned Articles is to be determined objectively, by what the ordinary reasonable reader would regard the words to mean. In Farquhar v Bottom,[86] Hunt J summarised the principles for determining whether a matter complained of is capable of conveying a particular imputation. His Honour said:

In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence; who is neither perverse; nor morbid or suspicious of mind; nor avid for scandal.

This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer.[87]

278 The ordinary reasonable reader is neither unusually suspicious nor unusually naïve and engages in a degree of loose thinking.[88]

279 In David Syme & Co Ltd v Hore-Lacy,[89] the Court of Appeal discussed the principles in Polly Peck[90] dealing with the circumstances in which a defendant is entitled to plead, for the purposes of justification and other defences, that the words complained of by the plaintiff bear a meaning other than the meaning pleaded by the plaintiff. In this judgment, I will refer to an imputation upon which the Artists rely as a 'Polly Peck imputation.'

280 In Hore-Lacy, the majority (Ormiston and Charles JJA) held that a plaintiff in a defamation action can succeed at trial only on a pleaded meaning or some other meaning provided that the other meaning is not substantially different from and is not more injurious than the meaning pleaded, and that the defendant is not in all the circumstances unfairly prejudiced by the reliance on the other meaning.[91] Charles JA stated that the question of whether the meaning is 'substantially different' would 'presumably be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis ... or possibly whether the justification would be substantially different.'[92]

281 The corollary of this is that a defendant in a defamation action who pleads justification is confined to justifying the meaning pleaded by the plaintiff, or some other meaning which is sufficiently close to the plaintiff's meaning that the plaintiff could succeed on that meaning on the pleadings as they stand.[93] That is, a meaning which is not more serious and is otherwise not substantially different from the meaning pleaded by the plaintiff.[94] Where a defendant intends to justify a meaning of an imputation which differs in the permissible sense from the meaning pleaded by the plaintiff, the defendant must plead that meaning with the necessary particulars of the facts on which the justification is based.[95]

282 The first imputation upon which Mr Cripps has relied in relation to the First Vakras Article is that he 'is a disgraceful individual who is to be avoided assiduously'. Mr Vakras has denied that that imputation is carried by the First Vakras Article and has pleaded the following 'Polly Peck' imputation: that Mr Cripps 'treated [the Artists] in a disgraceful manner and other artists should avoid him'.

283 Mr Gilbertson submitted that the relevant passages are 'AVOID THIS GALLERY ASSIDUOUSLY' and 'Cripps' conduct throughout was thoroughly disgraceful'. According to Mr Gilbertson, while these words carry the meaning that Mr Cripps treated the Artists in a disgraceful manner and other artists should avoid him, they do not carry the meaning that Mr Cripps is a disgraceful individual who is to be avoided assiduously. Mr Gilbertson contended that the words used to describe Mr Cripps - poisonous, vile, repellent, malignant, racist, liar, bellicose, bully and stupid - have meanings which are distinct from 'disgraceful' and that the present tense is not conveyed by the words 'was thoroughly disgraceful'. Finally, Mr Gilbertson submitted that the word 'disgraceful' relates to Mr Cripps' conduct in relation to the Exhibition rather than to Mr Cripps' character.

284 Mr Gilbertson also submitted that the 'Polly Peck' meaning is not substantially different from, or more injurious than, Mr Cripps' pleaded imputation. He contended that the adverb 'assiduously' adds nothing to the sting.

285 Mr Dibb submitted that the direction to avoid the Gallery assiduously is presumably made on the basis that it was run by Mr Cripps, and that a person of whom it could be said that he is poisonous, vile, repellent, malignant, racist, a liar, bellicose, a bully and stupid is a disgraceful individual and should be avoided assiduously. Further, the article expressly states 'AVOID THIS GALLERY ASSIDUOUSLY'. Mr Dibb submitted that the meaning conveyed by the imputation is not limited to Mr Cripps' treatment of the Artists, and the 'Polly Peck' meaning upon which the Artists relied is not a nuance but a significantly different imputation. It is quite different from the assertion that Mr Cripps is a disgraceful individual who is to be avoided assiduously, not just by the Artists but by everyone.

286 I reject Mr Gilbertson's submissions as to why Mr Cripps' pleaded imputation is not carried by the First Vakras Article. Those submissions attribute to an ordinary reasonable reader a literalism that is contrary to the authorities.

287 Although the words 'AVOID ... ASSIDUOUSLY' in the First Vakras Article are used in connection with the Gallery, the article treats Mr Cripps and the Gallery as one and gives as the reason for avoiding the Gallery the negative attributes of Mr Cripps. The question posed by the article - 'Cripps also runs Redleg a transporter of art can you trust Cripps' Redleg?' - when read in context can only be interpreted as an assertion that Mr Cripps cannot be trusted. The article asserts that Mr Cripps is a liar and a person who has behaved disgracefully and cannot be trusted, and suggests by the words 'poisonous' 'bellicose' and 'repellent' that he behaves in an anti-social manner. The fact that the article states that Mr Cripps' 'conduct throughout was thoroughly disgraceful' does not mean that only Mr Cripps' past conduct with the Exhibition is being characterised as 'disgraceful'. The cumulative effect of the article as a whole is that the ordinary reasonable reader would form the impression that Mr Cripps is a disgraceful person who should be avoided assiduously.

288 I also reject Mr Gilbertson's submissions that the 'Polly Peck' imputation satisfies the principles in Hore-Lacy.[96] That imputation is substantially different from Mr Cripps' pleaded imputation because the sting is confined to Mr Cripps' past conduct during a single exhibition rather than an attack on his present-day character and suitability to have engagement with artists and other individuals who visit galleries. The adverb 'assiduously' adds to the sting because it conveys that extra effort to avoid Mr Cripps is required. The 'Polly Peck' meaning is also too narrow because it is confined to advising only artists to avoid Mr Cripps.

289 For the above reasons, I find that the first imputation upon which Mr Cripps has relied is carried by the First Vakras Article. I will refer to this imputation as the 'Disgraceful Imputation'.

290 The second imputation upon which Mr Cripps has relied in relation to the First Vakras Article is that he 'used economic duress to force the [Artists] to agree to terms that were not in the original contract for rental of space at the Gallery'. Mr Gilbertson has properly conceded that this imputation is carried by the First Vakras Article. I will refer to the second imputation as the 'Duress Imputation'.

291 The third imputation upon which Mr Cripps has relied in relation to the First Vakras Article is that '[Mr Cripps], having made a profit from the [Artists'] art exhibition at the Gallery, [then] deliberately inhibited the [Artists'] capacity to promote the Exhibition, causing the Exhibition to fail'. Mr Vakras has denied that that imputation is carried by the First Vakras Article and has pleaded the following 'Polly Peck' imputation: that Mr Cripps 'profited from the [Artists'] art exhibition, notwithstanding that he inhibited the [Artists'] capacity to promote the exhibition, causing it to fail'.

292 Mr Gilbertson submitted that there is nothing in the First Vakras Article that conveys that Mr Cripps deliberately inhibited the Artists' capacity to promote the Exhibition, causing it to fail. According to Mr Gilbertson, the 'Polly Peck' meaning is less injurious and not substantially different from Mr Cripps' pleaded imputation, and the sting in the imputation is that Mr Cripps inhibited the Artists' capacity to promote the Exhibition, causing it to fail.

293 Mr Dibb submitted that to remove the element of deliberateness from the third imputation takes out an important aspect of the sting of the imputation, such that the imputation would probably not be defamatory. If the notion of deliberate action is removed, it would not impute to Mr Cripps any act or omission which would cause him to be lowered in the eyes of ordinary reasonable people.

294 In my opinion, neither Mr Cripps' nor Mr Vakras' formulation of the third imputation accurately conveys the meaning of the First Vakras Article. In relation to Mr Cripps' formulation, the article does not convey that Mr Cripps deliberately set out to inhibit the Artists' capacity to promote the Exhibition, as distinct from his actions producing this result. Nor does the article convey that Mr Cripps set out to achieve this result only after he had made a profit from the Exhibition. In relation to Mr Vakras' formulation, the word 'notwithstanding' detracts from the causal relationship between Mr Cripps' conduct and the failure of the Exhibition which is part of the message conveyed by the First Vakras Article.

295 In the light of the above, the meaning that is carried by the First Vakras Article is that 'Mr Cripps engaged in conduct which inhibited the Artists' capacity to promote the Exhibition, causing it to fail, but Mr Cripps still made a profit from the Exhibition'. I will refer to this imputation as the 'Profit Imputation'.

296 The fourth imputation upon which Mr Cripps has relied in relation to the First Vakras Article is that Mr Cripps 'is a racist who has embraced the view of National Socialism'. Mr Vakras has denied that the above imputation is carried by the First Vakras Article and has pleaded the following 'Polly Peck' imputation: that Mr Cripps 'is a racist who holds views that are similar to those of Adolf Hitler'. For the purposes of that imputation, Mr Vakras relied not only on the First Vakras Article but also on parts of the article titled 'Hitler's disciples: the new racism of the political Left' which is accessed by clicking on the hyperlinks 'the new-left Nazis' and 'new-left Nazis' in the First Vakras Article. The hyperlinked article was written by Mr Vakras separately from the First Vakras Article and was posted on his website independently of the First Vakras Article. The parts of the hyperlinked article upon which Mr Vakras has relied are set out in Appendix 4 ('Hyperlinked Article').

297 Although Mr Dibb submitted that resort to the Hyperlinked Article was impermissible, he properly conceded that the 'Polly Peck' imputation pleaded by Mr Vakras was consistent with the principles in Hore-Lacy.[97] In my opinion, as the First Vakras Article refers to Hitler but not to National Socialism, and as Hitler is more widely known than National Socialism, readers of the First Vakras Article are more likely to interpret it as meaning that Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler than that he is a racist who has embraced the view of National Socialism. That meaning is carried without any resort to the Hyperlinked Article.

298 For the above reasons, this judgment will consider Mr Vakras' liability to Mr Cripps on the basis that the fourth imputation that is carried by the First Vakras Article is in this form: 'Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler'. I will refer to this imputation as the 'Hitler Imputation'.

299 The fifth imputation upon which Mr Cripps relied in relation to the First Vakras Article is that he 'is a bellicose bully'. Mr Gilbertson has properly conceded that this imputation is carried by the First Vakras Article. I will refer to the fifth imputation as the 'Bully Imputation'.

300 I will refer to the Disgraceful Imputation, the Duress Imputation, the Profit Imputation, the Hitler Imputation and the Bully Imputation as the 'First Vakras Article Imputations'. For convenience, these imputations are set out in Appendix 6.

301 In Radio 2UE Sydney Pty Ltd v Chesterton,[98] the High Court acknowledged the breadth of the term 'reputation' in its application to natural persons, and stated that a person's reputation may be said to be injured when the esteem in which that person is held by the community is diminished in some respect.[99] French CJ, Gummow, Kiefel and Bell JJ gave the following summary of the common law test of defamatory matter:

Lord Atkin proposed ... a general test in Sim v Stretch, namely that statements might be defamatory if 'the words tend to lower the plaintiff in the estimation of right-thinking members of society generally'. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.

The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v Daily Telegraph Newspaper Co Ltd, although Griffith CJ expressed some concern about the ambiguity of the expression 'right thinking members of the community'. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this Court ... Gummow and Hayne JJ in Gacic referred to the likelihood that the imputations might cause 'ordinary decent folk' in the community to think the less of the plaintiff.

Putting aside Lord Atkin's additional requirement of being 'right thinking', the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as 'of ordinary intelligence, experience and education'. Such persons have also been described as 'not avid for scandal' and 'fair-minded'. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.[100]

302 The standards to be applied by the hypothetical referees to determine whether the imputations are defamatory, are those of the general community. In Reader's Digest Services Pty Ltd v Lamb,[101] Brennan J said that the hypothetical referees are taken to have a uniform view of the meaning of the language used and upon the moral or social standards by which they evaluate the imputation they understand to have been made. 'They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally'.[102] His Honour added that, although the defamatory nature of an imputation is ascertained objectively by reference to general community standards rather than sectional attitudes, if the imputation is defamatory according to the standards of the community generally, a particular impact may be proved for the purpose of assessment of damages.[103]

303 Mr Vakras has denied that any of the First Vakras Article Imputations are defamatory. However, he did not make any specific submissions on why they are not defamatory.

304 In my opinion, the Disgraceful Imputation is defamatory of Mr Cripps. Although the First Vakras Article focuses on Mr Cripps' conduct towards the Artists, the sting of the article is not confined to that conduct but is directed at Mr Cripps generally. The sting is that Mr Cripps is such an undesirable person that people need to take extra steps to ensure they have nothing to do with him. The impression of Mr Cripps that the article conveys commences at the outset of the article where, in the opening words, Mr Cripps is described as 'toxic' and 'poisonous, vile, repellent, malignant, liar, bellicose, bully, stupid'. The article refers to Mr Cripps, Redleg and the Gallery interchangeably and the emphatic advice that the Gallery should be avoided assiduously and the suggestion that Redleg is not to be trusted have the cumulative effect of conveying the message that persons generally - and especially anyone who might have dealings with the Gallery or who might require arts transportation services - should go out of their way to avoid Mr Cripps because he is a disgraceful person. Any words which advise that a person should be avoided because they are disgraceful clearly damage that person's reputation in the sense described in the authorities.

305 The Duress Imputation is defamatory of Mr Cripps, as it conveys the message that Mr Cripps inappropriately withheld money due to the Artists in order to obtain a benefit to which he was not legally entitled, namely, contractual benefits to which the parties had not previously agreed. The use of economic pressure to obtain a benefit to which a business person is not legally entitled would be considered by the hypothetical referees described in Radio 2UE and Lamb as unfair and commercially inappropriate. This message would be sufficient to deter potential exhibitors from conducting business with Mr Cripps by hiring the Gallery.

306 The Profit Imputation is defamatory of Mr Cripps because, although it does not convey that Mr Cripps' conduct was improper, it suggests that he was indifferent to whether his conduct inhibited the promotional efforts of the Artists and whether it undermined the Exhibition. The sting in the imputation is that Mr Cripps' attitude and behaviour were unfair and selfish because they caused the Exhibition to fail but he still made a profit from it. Mr Cripps' attitude and behaviour are the antithesis of the attitude and behaviour of a reputable operator of a gallery, namely, cooperation and support to ensure that exhibitors are able to effectively promote their exhibition and thus improve the prospects of its success. The message conveyed by the Profit Imputation would be sufficient to deter potential exhibitors from conducting business with Mr Cripps by hiring the Gallery.

307 The Hitler Imputation inarguably defames Mr Cripps. To describe someone as a racist is defamatory because modern Australia has firmly set its face against racism and regards it as vile and odious. It is common for people to lose their jobs and to be ostracised for engaging in racist conduct. To add to the description of a person as a racist that they have views similar to those of Hitler elevates the defamation to one of the most egregious examples of its type. To associate anyone with the views of Hitler is to profoundly damage their reputation because the message that is immediately conveyed is that the person condones the atrocities that Hitler committed based on his views that the Aryan race is superior to all other races and that Jews (among others) should be exterminated. In modern Australian society, that message represents a devastating assault on the person's reputation and is likely to make them a pariah.

308 Hitler is universally regarded as one of the most abhorrent individuals of all time. The images with which he is instantly associated are those of the Holocaust and the commission of atrocities on innocent civilians based on the racist view set out at [307] above. These images are conveyed by the mere mention of Hitler's name and are so potent that they would be instantly attributed to anyone who is accused of being a racist who holds views that are similar to those of Hitler. The levelling of such an accusation at any person would eviscerate their reputation.

309 The hypothetical referees described in Radio 2UE and Lamb, upon reading the phrases, 'the new-left Nazis' and 'the sentiments of Hitler expressed in his Mein Kampf' would immediately call to mind the policies of genocide perpetrated by Hitler and the Nazis, including the Holocaust, and would recoil in disgust. As a result, the reader would immediately form the view that Mr Cripps is a person to be loathed and detested for his inhumanity.

310 I reject the premise implicit in Mr Gilbertson's submissions that, read in its context, the racism and the views of Hitler to which the Hitler Imputation refer simply comprise the political philosophy of the new-left Nazis. This premise is unsustainable insofar as it relies on the context provided by the First Vakras Article, unaided by the Hyperlinked Article. The ordinary reasonable reader who read the First Vakras Article as a whole would not interpret the description of Mr Cripps as a self-confessed racist who has adopted the sentiments of Hitler expressed in his Mein Kampf as a benign, academic description of a person who has adopted a particular political philosophy. That is because the other parts of the article do not in any way detract from the image described at [307] to [309] above. Rather, they reinforce it.

311 I refer, in particular, to the reference to 'Hitler's racial exterminations' and the statements that Mr Cripps' 'hatred of Jews is exposed for the outright racism that it is' and that '[l]ike the Nazis before her Yolande Pickett might in the future claim to have been following orders.' It is notorious that Hitler hated Jews and adopted barbaric means aimed at exterminating them. It is also well known that, after Germany was defeated in the Second World War, some members of Germany's armed forces sought to excuse the atrocities they inflicted on innocent civilians by claiming that they were merely following orders.

312 I do not accept Mr Gilbertson's submission that the context within which the Hitler Imputation is to be assessed includes the Hyperlinked Article. As I stated in my ruling dated 25 March 2014:

The two articles are self-contained in the sense that they can be read and understood without reference to each other. The First Article provides text which explains what are said to be the racist views of Hitler in Mein Kampf. It is true that a reading of the ... Hyperlinked Article may further assist a reader to understand the references to 'the new-left' in the First [Vakras] Article but the same would be true of a footnote in any publication that contains a reference to another publication on the same subject matter that the reader might find interesting or useful. Of itself, that does not mean that the publications are a single composite publication.

The fact that the First [Vakras] Article contains seven hyperlinks indicates that the First [Vakras] Article is intended to be read as a self-contained article without an expectation that a reader will necessarily read all the linked material. The hyperlinks are no more than a choice that is offered to the reader to quickly and conveniently pursue further reading of separate publications that may relate in some way to the text of the First [Vakras] Article.[104]

313 Although some readers of the First Vakras Article might click on one of the hyperlinks and read the Hyperlinked Article, some readers would not do so. Those who click on one of the hyperlinks may read the Hyperlinked Article as a whole and not just the parts selected by Mr Vakras. By reading the Hyperlinked Article as a whole, the reader would be exposed to Mr Vakras' theories about so-called new-left Nazis. Some readers might understand those theories, while others might be confused and may fail to understand why Mr Vakras has accused Mr Cripps of being a racist and holding views that are similar to those of Hitler.

314 A reading of the Hyperlinked Article as a whole, including the references to 'racial hatred of Jews' and 'extermination of Jews' and the cartoon depicting Auschwitz in 1942 would confirm the ordinary reasonable reader's initial view that Neo-Nazis endorse Hitler's policies of genocide against Jews. In any event, on no view would the Hyperlinked Article dispel the image set out at [307] to [309] above. Thus, the Hyperlinked Article would not in any way remove the sting of the First Vakras Article.

315 The Bully Imputation is defamatory of Mr Cripps. Whereas in the past the adjective 'bully' may have had benign connotations, that is no longer the case. In the past 10 years or so, the community has acquired a greater understanding of the psychological harm that bullying causes its victims. Bullying in any context, whether it be in a workplace, a school yard or business premises, is considered to be serious anti-social behaviour. It is not uncommon for people who have been found to have engaged in bullying conduct to lose their jobs. Considerable stigma is associated with being described as a bully. The adjective 'bellicose' exacerbates the stigma of 'bully' because it adds another layer of odium to the individual concerned.

316 The common law defence of justification requires a defendant to show that the imputations carried by the matter complained of are true in substance and in fact. The defence of justification requires the defendant to prove the truth of the 'sting' of the meaning conveyed, rather than every detail of the matter published. The defendant must prove that the whole of the defamatory meaning is substantially true. However, trivial matters may be ignored.

317 Mr Vakras has relied on the defence of justification at common law in respect of each of the First Vakras Article Imputations that he has conceded are carried, or where he has pleaded a 'Polly Peck' imputation, that imputation.

318 Where Mr Vakras has pleaded a 'Polly Peck' imputation, I will consider the defence of justification in relation to that imputation as well as the imputation I have found is carried by the First Vakras Article.

319 In relation to the 'Polly Peck' version of the Disgraceful Imputation, the particulars upon which Mr Vakras has relied included: alleged breaches of the Hiring Agreement (including the alleged refusal by Mr Cripps to make the Open Studio available and the delay in the payment to the Artists of the Bond and the Sale Proceeds); Mr Cripps' insistence that the Artists agree to the release term; breach of the alleged agreement by the Gallery to be responsible for selling the Catalogue; the alleged berating of Ms Raymond on 5 June 2009; the alleged statements and conduct of Mr Cripps at the meetings on 18 and 24 June 2009; the Disclaimer; and the 'prohibitions' in Mr Cripps' email to Ms Raymond of 26 June 2009.[105]

320 Mr Gilbertson submitted that the 'Polly Peck' version of the Disgraceful Imputation is a truthful statement of fact about how Mr Cripps treated the Artists and why other artists should avoid him.

321 In relation to the Duress Imputation, the particulars upon which Mr Vakras has relied were to the effect that, by refusing to pay to the Artists the Bond and the Sale Proceeds unless they agreed to a release term, Mr Cripps exerted economic duress to force them to agree to terms that were not in the Hiring Agreement.

322 Mr Gilbertson submitted that the ordinary reasonable reader (who is a layperson) would understand the Duress Imputation to mean that Mr Cripps placed the Artists under financial pressure that was not supported by the Hiring Agreement. According to Mr Gilbertson, the imputation is true in substance and in fact because Mr Cripps refused to pay the Artists the Bond and the Sale Proceeds unless they agreed to a release.

323 In relation to the 'Polly Peck' version of the Profit Imputation, the particulars upon which Mr Vakras has relied relevantly included:

(a) That Mr Cripps inhibited the Artists' ability to promote the Exhibition by:

(i) wrongfully not offering the Catalogue for sale;

(ii) restricting the Artists' ability to sell their artwork at the Exhibition through the following actions: prohibiting Mr Vakras from speaking to Mr Cripps and staff at the Gallery without prior notification for the last 10 days of the Exhibition; prohibiting Ms Raymond from speaking to any staff at the Gallery other than Mr Cripps in the last 10 days of the Exhibition; and prohibiting the Artists from attending the Gallery without first notifying Mr Cripps, for the last 10 days of the Exhibition, contrary to the access rights in the Hiring Agreement; and

(iii) installing the Disclaimer and thereby discouraging visitors to the Gallery from purchasing the Artists' artwork.

(b) The Exhibition failed by reason of Mr Cripps inhibiting the Artists' ability to promote the Exhibition in that, whereas they expended $13,448.80 on the Exhibition, they only sold one painting for $450.

324 Mr Gilbertson submitted that, as Mr Cripps is Redleg's sole shareholder, he profited from the Exhibition.

325 In relation to the Hitler Imputation, Mr Vakras relied on the statements and conduct of Mr Cripps at the meetings on 18 and 24 June 2009, as recounted in the Artists' evidence. That evidence is discussed at [134] to [139] and [164] to [170] above. In relation to those statements and conduct Mr Vakras provided particulars which stated:

The statements ... exhibit hatred of or disdain for a race of people, the Jews, and ascribe characteristics and responsibility to that race or group of people identifiable as a 'race', and accordingly, [Mr Cripps] is a racist.

The statements ... and the gestures ... exhibit views that are similar to the following views held or expressed by Adolf Hitler ... : hatred of or disdain for Jews; allegations that Jews are the cause of conflict; opposition to the creation of a Jewish State in Palestine; support for Palestinians; support for Muslims; allegations that another race or group of people were the victims of Jews, in Hitler's case, Christians, in [Mr Cripps'] case, Muslims; support for violence against Jews.

326 Mr Gilbertson referred to the definition of 'racism' in the sixth edition of the Shorter Oxford Dictionary set out at [226] above and submitted that Mr Cripps is a racist who holds views that are similar to those of Hitler because:

(a) The statements made by Mr Cripps on 18 and 24 June 2009 ascribe characteristics and/or responsibility to a race of people identifiable as 'Jews'. Those statements include that: 'It's because of what the Jews are doing in Palestine'; 'The Jews should not be in Palestine, they're the cause of the conflict'; 'It's the Jews that caused the problem'; 'Your quotes from the Koran ... create the impression that the Jews are the victims of Muslims'; 'The Muslims are the victims of Jews in Palestine'; 'I don't like the Jews'; 'I don't like the Jews' State in Palestine'; 'It's the Jews that are the problem. The Jews should not be in Palestine'; 'It was because of the Jews that the Muslims were reacting'.

(b) The views that are similar to those of Adolf Hitler are: anti-Semitism and disdain for the Jews, which are notorious.

(c) Adolf Hitler's views are indicated in the First Vakras Article by the phrases: 'by defending myself against the Jew'; 'Hitler's enmity of Jews'; and 'Hitler's racism'.

(d) Adolf Hitler's views are also indicated in the Hyperlinked Article by the phrase: 'The Zionists try to make the rest of the world believe that the national consciousness of the Jew finds its satisfaction in the creation of a Palestinian state.'

327 In relation to the Bully Imputation, the particulars upon which Mr Vakras has relied included: alleged breaches of the Hiring Agreement (including the alleged refusal by Mr Cripps to make the Open Studio available to the Artists); the alleged statements and conduct of Mr Cripps at the meeting of 24 June 2009; the 'prohibitions' in Mr Cripps' email of 26 June 2009 to Ms Raymond;[106] the delay in payment to the Artists of the Bond and the Sale Proceeds; Mr Cripps' insistence that the Artists agree to a release term; Mr Cripps' alleged berating of Ms Raymond at the meeting on 5 June 2009; and Mr Cripps' conduct towards Ms Bowman[107] and Ms Waddelton.[108]

328 Mr Gilbertson relied on definitions of 'bellicose' and 'bully' from the fifth edition of the Macquarie Dictionary. That dictionary defines 'bellicose' as 'inclined to war; warlike; pugnacious' and 'bully' as 'a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people'; 'to be loudly arrogant and overbearing'. Mr Gilbertson submitted that Mr Cripps was a warlike, pugnacious person who was quarrelsome, overbearing and who browbeat smaller or weaker people; he was loudly arrogant and overbearing.

329 In my opinion, Mr Vakras has failed to establish that the Disgraceful Imputation, the Profit Imputation, the Hitler Imputation or the Bully Imputation - or, where relevant, the 'Polly Peck' imputations pleaded by him - were true in substance and in fact. Mr Vakras has, however, established that the Duress Imputation was true in substance and in fact.

330 In relation to the 'Polly Peck' version of the Disgraceful Imputation, Mr Vakras has failed to establish a factual foundation for that imputation - and necessarily for the Disgraceful Imputation - based on the particulars set out at [319] above. This is because I have held: that the Defamation Plaintiffs did not breach the Hiring Agreement in relation to the Open Studio, the sale of the Catalogue or access to [109] Gallery;109 that Mr Cripps did not berate Ms Raymond on 5&#16[110]une 2009;110 and that much of the Artists' evidence about Mr Cripps' statements and conduct on 18 and 24 June 200[111]s untrue.111

331 I have found that the late payment of the Bond and Sale Proceeds to the Artists constituted a breach of the Hiring Agreement and that Mr Cripps had no contractual right to insist on a release term. Mr Cripps also admitted that he made the comment 'Is that your lovely bottom' to Ms Ladas.[112] However, this conduct, when considered in the context of my findings about the entirety of Mr Cripps' interaction with the Artists until the payment of the Bond and Sale of Proceeds, is insufficient to establish in substance and in fact that Mr Cripps treated the Artists in a disgraceful manner. Less still does the conduct establish that the Disgraceful Imputation is true in substance and in fact.

332 In relation to the Duress Imputation, the evidence has established that Mr Cripps used his ability to withhold payment of the Sale Proceeds and the Bond to the Artists for the purpose of forcing them to agree to a form of release to which Redleg was not entitled under the Hiring Agreement. His conduct, in substance and in fact, constituted the use of economic duress to force the Artists to agree to a term that was not in the original contract for the rental of space at the Gallery. The fact that the Artists were forced to agree to a single additional term rather than 'terms' is immaterial in the circumstances.

333 In relation to the 'Polly Peck' version of the Profit Imputation, although the evidence has not directly established that Redleg made a profit from the Exhibition, as distinct from earning the hiring fee of $3,960, it can be inferred that, as the Gallery was a commercial enterprise, the hiring fee would have included a profit margin. I will also assume, in Mr Vakras' favour, that the making of a profit by Redleg is equivalent to Mr Cripps making a profit.

334 The evidence, however, has not established that Mr Cripps inhibited the Artists' capacity to promote the Exhibition or that the Exhibition failed. The Artists gave evidence that the opening night was a success. The evidence has not satisfied me that the disagreeable discussions that took place on 18 and 24 June 2009 were heard by any other artist or by any guest. Even if the female visitor to the first floor of the Gallery on 24 June 2009 had overheard part of the conversation, she was obviously not put off by what she heard, as she told Ms Raymond that she would return with her partner.[113] Mr Cripps made an inappropriate comment to Ms Ladas but she had already purchased a painting and there was no evidence that any offence that she may have taken as against Mr Cripps affected her support for the Artists or the Exhibition.

335 There was no evidence - as distinct from speculation - that the Disclaimer had any negative impact on the success of the Exhibition, less still that it caused the Exhibition to fail.

336 The Artists' evidence was to the effect that, in previous exhibitions, they each sold between one and three paintings.[114] The sale of one of Mr Vakras' paintings at the Exhibition is consistent with the outcome of previous exhibitions. Based on their sales histories, there was never any prospect that the Artists would recover the costs of the Exhibition set out at [249] above.

337 For the above reasons, Mr Vakras has failed to establish that the Exhibition failed, less still that it failed because of any conduct by Mr Cripps. Further, based on my findings that are set out earlier in this judgment,[115] the particulars at [323(a)] above of how Mr Cripps allegedly inhibited the Artists' ability to promote the Exhibition have not been made out. The Artists did not give any evidence of how the notice requirements in Mr Cripps' email of 26 June 2009 interfered in any way with their ability to promote the Exhibition. For example, they did not give evidence that, after 24 June 2009, they attended the Gallery but were denied access or that they gave notice that they intended to attend the Gallery at any particular time and were informed that the nominated time was unsuitable. Accordingly, Mr Vakras has not established the defence of justification in relation to the 'Polly Peck' imputation pleaded by him, less still in relation to the Profit Imputation.

338 The sting in the Hitler Imputation is that Mr Cripps is a racist and that he condones the atrocities that Hitler committed based on his views that the Aryan race was superior to all other races and that Jews (among others) should be exterminated.[116] Based on my findings earlier in this judgment, Mr Vakras came nowhere near to establishing that this was true in substance and in fact. Even if it is assumed that the Hitler Imputation merely conveyed that Mr Cripps hated Jews, for the reasons set out at [225] to [230] above, Mr Vakras failed to establish that Mr Cripps was a racist in that limited sense.

339 The sting in the Bully Imputation is that Mr Cripps consistently behaves as an aggressive and unpleasant bully. The evidence supports a conclusion that Mr Cripps behaved in a humiliating and abusive manner in his dealings with Ms Bowman, Mr Mishriki, Mr Mickelson and Ms Waddelton but not in his dealings with Ms Kim, Ms Curro, Mr Murray, Ms Paul and Mr Sedergreen.[117] This evidence falls short of proving that the Bully Imputation - which is not confined to Mr Cripps' dealings with artists - is true in substance and in fact.

340 For the above reasons, the defence of justification at common law has only been established in relation to the Duress Imputation.

341 Section 25 of the Act provides that it is a defence to the publication of defamatory matter 'if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.' Section 4 defines 'substantially true' as 'true in substance or not materially different from the truth'.

342 Mr Vakras has relied on the defence of justification under the Act in respect of each of the First Vakras Article Imputations that he has conceded are carried, or where he has pleaded a 'Polly Peck' imputation, that imputation. He has done so on the basis of the same particulars, evidence and submissions as applied to the defence of justification at common law.

343 For the reasons set out at [329] to [340] above, Mr Vakras has established the defence in s 25 of the Act only in relation to the Duress Imputation.

344 The elements of the common law defence of fair comment are as follows. First, the imputation carried by the impugned words must amount to a comment as opposed to a statement of fact.[118] A particular statement may be fact or comment depending on the actual language used and the context in which it is made.[119] A statement is a comment if it would be considered as such by the people to whom it is published. The relevant test is not whether the writer intended to convey his or her opinion, but rather whether the ordinary reasonable reader of the published matter would understand it to be an expression of the writer's opinion.[120] A comment can be made by stating an opinion, an evaluation or a judgement, and can also be made by stating a fact if it is an inference or a deduction from other stated facts.[121]

345 The opinion or comment upon which the defendant relies must not be so mixed up or intermingled with allegations of fact that the reader cannot readily distinguish between what is an assertion of fact and what is an expression of opinion.[122]

346 Secondly, the comment must relate to a matter of public interest. Matters of public interest are not narrowly confined. In London Artists Ltd v Littler,[123] Lord Denning MR said:

There is no definition in the books as to what is a matter of public interest. ... I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.[124]

347 Littler involved the publication of a letter which discussed the premature closure of a popular play due to the simultaneous resignations of the leading actors. The English Court of Appeal held that, insofar as the letter constituted comment, it was on a matter of public interest.[125]

348 Any public exhibition or show to which the public have a right of admission is a matter of public interest. Performances and productions are treated as matters of public interest because the persons involved in them submit through doing so to fair criticism. This applies to authors, artists or sculptors who offer or display their work to the public, as well as actors, singers and musicians who perform in public.[126] As was the case in Littler, the management of a venue such as a public theatre may also be a matter of public interest.

349 Thirdly, the comment must be based on facts stated or referred to in the article or which are notorious, so that persons to whom the defamatory material is published may judge for themselves how far the opinion expressed in the comment is well founded.[127] This principle was affirmed by the High Court in Channel Seven Adelaide Pty Ltd v Manock.[128] Gummow, Hayne and Heydon JJ rejected a submission that where the facts upon which a comment is based are not stated, referred to or notorious, it is enough if the impugned publication sufficiently indicates the topics of public interest upon which the comment is based.[129] The Court also observed that:

it may be true that facts which are not stated, referred to or notorious in reviews of plays or sporting spectacles can form the basis of a fair comment defence - perhaps because it is not easy to break up the relevant parts of the play or sporting spectacle into particular facts, or perhaps because the play or sporting spectacle is identified and its promoter holds it out for comment.[130]

350 Fourthly, the facts on which the comment is based must be true.

351 Finally, the comment must be one that an honest person, however biased or prejudiced, might reasonably form upon the facts stated or referred to or which are notorious.[131]

352 The defence of fair comment can be defeated by proof of malice. For the purposes of that defence, the plaintiff must show that at the time of publication, the defendant did not honestly hold the opinion expressed.[132]

353 A defendant is not actuated by malice for the purposes of the defence of fair comment solely by reason of the fact that they have expressed an opinion with a dominant, malicious motive, such as that of injuring the plaintiff.[133] Motive alone cannot found a plea of malice with respect to the defence of fair comment. However, motive may be relevant to the primary question of whether the opinion was honestly expressed.[134]

354 In French v Triple M Melbourne Pty Ltd,[135] Forrest J adopted the test of malice in the context of the defence of fair comment set out by Lord Nicholls in Cheng v Tse Wai Chun:

To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages.[136]

355 Mr Vakras relied on the defence of fair comment at common law in relation to all the First Vakras Article Imputations. He submitted that they are comments that satisfy all the elements of the defence.

356 In their reply, the Defamation Plaintiffs relied on the following particulars of malice in relation to the Vakras Articles:

(a) Mr Vakras knew that the Vakras Articles were false, or, alternatively, was recklessly indifferent to whether they were true or false; and

(b) Mr Vakras' dominant motive in publishing the Vakras Articles was to smear the Defamation Plaintiffs and to maximise the damage to their reputations and their business interests.

357 The Defamation Plaintiffs also relied on the particulars at [356] above to plead that, insofar as the Vakras Articles contain opinions, such opinions were not honestly held or alternatively Mr Vakras had reasonable grounds to believe that the opinions were not honestly held at the time the articles were published.

358 In my opinion, the defence of fair comment cannot apply to the Duress Imputation and the Profit Imputation because they constitute statements of fact. In relation to the Profit Imputation, while the conclusion that Mr Cripps' conduct inhibited the Artists' capacity to promote the Exhibition may contain an element of opinion, the imputation as a whole is predominantly an assertion of fact. The Disgraceful Imputation, the Hitler Imputation and the Bully Imputation are either exclusively or predominantly comments.

359 The matter of public interest upon which Mr Vakras relied was 'the treatment by [Mr Cripps] of artists who exhibit their works at the Gallery'.

360 As the Duress Imputation and the Profit Imputation concern the management of a gallery, Littler provides some support for the proposition that they would have related to a matter of public interest if they had constituted comments. However, the Disgraceful Imputation, the Hitler Imputation and the Bully Imputation do not relate to the matter of public interest relied upon by Mr Vakras or any other matter of public interest. Those imputations simply attack the reputation of Mr Cripps as a private individual following a contractual dispute with the Artists. Mr Cripps' attributes are not matters that affect people at large so that they may be legitimately interested in what is going on and be entitled to make fair comment.[137]

361 Mr Gilbertson submitted that each of the First Vakras Article Imputations is based on facts stated in the article which are true.

362 The Artists did not provide particulars of the facts allegedly stated or referred to in the First Vakras Article upon which their 'comments' were said to be based, notwithstanding Beach J's order dated 7 September 2012 requiring them to do so.[138] Mr Gilbertson relied on Aga Kahn v Times Publishing Co[139] and Watt v The Herald & Weekly Times Ltd[140] for the proposition that such particulars need not be given. I disagree. The modern relevant authority is Hore-Lacy v Cleary,[141] which held that, depending on the pleadings, it may be appropriate for the Court to order that such particulars be given. Despite the fact that the Artists did not comply with Beach J's order, I will consider the alleged 'facts' upon which they now seek to rely.

363 In relation to the Disgraceful Imputation, Mr Gilbertson relied on the following allegedly true facts:

(a) The statement 'This has turned out to be a waste of money' is true because the Artists expended $13,448.80 and sold only one painting for $450.

(b) The statement 'Cripps had, at the time of writing this, still not paid us for work that sold during the show [payment was eventually made over 6 weeks later]' is true because payment was received within a few days after 11 August 2009.

(c) The statement 'we were forced into "agreeing" to terms that were never in the original contractual agreement with Cripps' is true because of Mr Cripps' email of 6 August 2009 to Ms Raymond.[142]

(d) The statement 'He gained "agreement" by placing us under financial duress' is true because that is the effect of Mr Cripps' email of 6 August 2009 to Ms Raymond.

(e) The statement 'During the course of the exhibition he, by his actions circumvented our capacity to promote our work' is true because of the conversations on 18 and 24 June 2009, the refusal to sell the Catalogue, the Disclaimer and Mr Cripps' email of 26 June 2009 to Ms Raymond.[143]

364 In relation to the Duress Imputation, Mr Gilbertson relied on the allegedly true facts set out at [363(b)] and [363(c)] above.

365 In relation to the Profit Imputation, Mr Gilbertson relied on the following allegedly true facts: Mr Cripps made a profit on the Exhibition, namely the hire fee, and the facts are set out at [363(e)] above.

366 In relation to the Hitler Imputation, Mr Gilbertson relied on the following allegedly true facts:

(a) The statement 'He is the manifestation of the new-left who have adopted the sentiments that Hitler expressed in his Mein Kampf'.

(b) The following statement from the Hyperlinked Article:

In an exhibition of my works held during June-July 2009 I was criticised for the sentiments which underlie my works by the owner of the gallery in which my works were being exhibited. According to this gallery owner/director (Robert Cripps, refer exhibition), criticism of Judaism or Christianity, or Zoroastrianism, is acceptable, but any criticism of Islam (by citing the Koran in the same way that I cite Biblical passages to criticise Judaism/Christianity) is, as he claimed, 'racist', because if applied to 'Palestine', it would mean that the Muslims, and not Jews are responsible for what ails that region.

(c) The statement 'criticised for the sentiments which underlie my works' is true because, on 18 June 2009, Mr Cripps told Mr Vakras that his quotes from the Koran give the impression that the Jews are victims of the Muslims.

(d) The statement 'any criticism of Islam ... is ... "racist", because if applied to "Palestine", it would mean that the Muslims, and not Jews are responsible for what ails that region' is true because, on 18 June 2009, Mr Cripps told Mr Vakras: that Mr Vakras' opinions on the Koran are racist; that Muslims are the victims of the Jews in Palestine; and that Mr Cripps did not like the Jews or the Jews' State in Palestine.

(e) Mr Cripps' statements: that it is the Jews that are the problem; that Jews should not be in Palestine; and that it was because of the Jews that the Muslims were reacting.

(f) Mr Cripps' response 'Yes, so' when Ms Raymond told him 'That of itself is racist' and his statement to her that Jews invade other people's land and cause the conflict.

(g) The statement that the 'conscientious Left' have adopted what Hitler wrote in Mein Kampf. The views of Hitler quoted from Mein Kampf exhibit to the ordinary reader anti-Semitism and racism, and they are the views held by Mr Cripps.

367 In relation to the Bully Imputation, Mr Gilbertson relied on the following allegedly true facts:

(a) The statements 'we were forced into "agreeing" to terms that were never in the original contractual agreement with Cripps', 'He gained "agreement" by placing us under financial duress' and 'According to Cripps, my essays were unintelligible, lacked artistic essence (whatever that might mean) and read like legalese'.

(b) The reference in the First Vakras Article to the Disclaimer.

368 In my opinion, even if the Disgraceful Imputation, the Hitler Imputation or the Bully Imputation related to matters of public interest, they could not attract the defence of fair comment because they are not based on facts stated or referred to in the First Vakras Article or which are notorious.

369 The First Vakras Article does not state or refer to facts for the 'comment' that Mr Cripps is a disgraceful individual who is to be avoided assiduously. At best, the article states opinions from which the 'comment' might be inferred. The quotes set out at [363] above do not sufficiently relate to the Disgraceful Imputation and the purported underlying facts that support the quotes are not stated or referred to in the First Vakras Article.

370 In relation to the Duress Imputation, it is not necessary for me to consider Mr Gilbertson's submissions at [364] above. This is because I have held that the defences of justification apply to that[144]putation.144

371 In relation to the Profit Imputation, I reject Mr Gilbertson's submission at [365] above that the First Vakras Article itself - as distinct from the evidence at trial - states facts upon which the 'co[145]nt'145 is based.

372 Likewise, the First Vakras Article does not state or refer to facts for the opinion that Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler. The statements upon which Mr Gilbertson relied at [366] above are Mr Vakras' opinions whose factual bases are not stated or referred to in the article. Even if it were permissible to treat the statements in the Hyperlinked Article as being stated or referred to in the First Vakras Article, those statements also constitute Mr Vakras' opinions on what he calls new-left Nazis rather than facts. Further, the purported underlying facts constitute evidence given at the trial rather than statements made or referred to in the First Vakras Article.

373 In relation to the Bully Imputation, the First Vakras Article does not state or refer to facts for the opinion that Mr Cripps is a bellicose bully. The matters set out at [367] above do not sufficiently relate to the Bully Imputation.

374 Even if it is assumed that the Disgraceful Imputation, the Profit Imputation, the Hitler Imputation and the Bully Imputation are based on facts stated or referred to in the First Vakras Article, most of those 'facts' are not true. In relation to the Disgraceful Imputation, the Profit Imputation and the Bully Imputation, I refer to my findings at [145] to [163], [175] to [195] and [233] to [254] above. In relation to the Hitler Imputation, I refer to my findings at [145] to [163], [175] to [195] and [225] to [230] above.

375 Mr Gilbertson submitted that the First Vakras Article Imputations expressed Mr Vakras' honest opinion. Except insofar as I have held that the First Vakras Article contained deliberate lies,[146] I am prepared to accept that Mr Vakras subjectively believes the truth of the Disgraceful Imputation, the Profit Imputation, the Hitler Imputation and the Bully Imputation. However, I am firmly of the view that no honest person, however biased or prejudiced, could reasonably do so based on the facts stated or referred to in the First Vakras Article.[147] My view would be the same even if the test were whether a fair minded person acting honestly might form the relevant opinion rather than whether an honest person acting reasonably might do so.[148]

376 In relation to malice, for the reasons set out at [415] to [416] below, I am satisfied that Mr Vakras' motivation for publishing the First Vakras Article was to smear Mr Cripps and maximise the damage to his reputation and business interests. However, this is insufficient to displace the defence of fair comment if that defence were otherwise applicable. As I am prepared to accept that Mr Vakras subjectively believes the truth of the contents of the First Vakras Article - except insofar as I have held that the First Vakras Article [149]tains deliberate lies149 - I am unable to find that Mr Cripps has proved malice in the relevant sense.

377 For the above reasons, I find that the defence of fair comment does not apply to any of the First Vakras Article Imputations.

(1) It is a defence to the publication of defamatory matter if the defendant proves that -

(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on proper material.

...

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that -

(a) in the case of a defence under subsection (1) - the opinion was not honestly held by the defendant at the time the defamatory matter was published; ...

(5) For the purposes of this section, an opinion is based on proper material if it is based on material that -

(a) is substantially true; or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); ...

(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

379 In summary, the defence of honest opinion under s 31 of the Act, insofar as it is relevant to the present case, requires Mr Vakras to prove that:

(a) the First Vakras Article Imputations were expressions of an opinion by him, rather than statements of fact;

(b) the opinions related to a matter of public interest; and

(c) the opinions are based on material that is substantially true.

380 Mr Vakras relied upon the defence of honest opinion in relation to all the First Vakras Article Imputations.

381 My findings at [358] to [377] above mean that the defence of honest opinion in s 31 of the Act cannot be made out in relation to the First Vakras Article Imputations.

382 A defendant who has published defamatory material has a common law defence of qualified privilege, if two criteria are satisfied. First, the publication was made in the performance of a legal, social or moral duty or to protect an interest. Examples of circumstances in which a relevant duty has been found to exist include: the provision of a reference to a prospective employer; reporting alleged criminal behaviour; the protection of a legitimate business or proprietary interest; and response to an attack on the defendant's character or conduct.

383 In Horrocks v Lowe,[150] Lord Diplock said:

The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions ... the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.[151]

384 Secondly, in order to attract the defence, the publication must be made to persons with a corresponding duty or interest in receiving that material. This reciprocity is essential.[152] The interest of each recipient in the publication must be legitimate; the recipient must be interested in the publication as a matter of substance rather than as a matter of gossip, curiosity or news.[153] The range of circumstances in which a common duty or interest has been found to exist is large. Examples include: communications among shareholders of a company concerning company affairs;[154] communications among members of unions or professional associations about the affairs of the union or association;[155] and some communications in some specialised subscription publications.[156] The requirement of reciprocity of interest generally denies the common law privilege where the matter has been disseminated to the public at large.[157]

385 Given that the categories of qualified privilege are broad and cannot be rendered exact, the High Court has emphasised that, in deciding whether the defence applies, the court must make a close scrutiny of the circumstances of the case, the situation of the parties, of the relations of all concerned and the events leading up to and surrounding the publication.[158] In each case the question the court must determine is whether the particular relationship between the defendant and the persons receiving the publication was one in which the advantages which the law deems are to be had from free communication within such a relationship should enjoy a significance over and above the accuracy of a defamatory imputation conveyed by the publication.[159]

386 As noted above, an occasion of qualified privilege may arise when a defendant has sought to reply to an attack made by the plaintiff against the defendant or the defendant's interests. In that context, the rationale of the defence of qualified privilege is the necessity of allowing the party attacked to place their case before the body whose judgement the attacking party has sought to affect. In Penton v Calwell,[160] Dixon J said that to impugn the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it is commensurate with the occasion.[161] His Honour continued:

If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.[162]

387 Where a defendant asserts that he or she had an interest in answering an attack, it is necessary to know what the attack was and how and to whom it was made. Only when these facts are known can the court determine whether the defendant's defamatory response was relevant to the occasion, went beyond what was necessary to protect the defendant's interests or was used for a purpose foreign to the occasion.[163]

388 In Harbour Radio Pty Ltd v Trad,[164] the High Court stated that any one of several considerations may indicate that the matter complained of is sufficiently connected to the privileged occasion to attract the defence of qualified privilege. The matter may be sufficiently connected with the content of the attack, it may go to the credibility of the attack, or to the credibility of the person making the attack. Questions of degree inevitably will be presented,[165] and it is necessary in each case to identify the particular circumstances which make the occasion one of qualified privilege.[166]

389 In Vassiliev v Frank Cass & Co Ltd,[167] the plaintiff was the co-author of a book about Soviet espionage in the United States, focusing particularly on the story of Alger Hiss who was accused of being a Soviet spy. The defendant was the publisher of a specialist journal on intelligence issues, with a readership of about 146 subscribers in the United Kingdom. The journal could not be purchased through retail outlets. The journal published a peer-reviewed article that was written in response to the book by a friend of Mr Hiss. The article was also published on two university websites, one of which was devoted to intelligence issues. The High Court of England and Wales was required to decide whether those who read or downloaded the article from either website would be likely to fall within the small circle of people with the same professional and academic specialist interest as the readers of the journal.

390 Eady J held that, while there was no evidence on this point, it was likely that only those with an interest in intelligence issues generally or the story of Hiss in particular would have read the websites.[168] His Lordship concluded that the facts gave rise to a clear case of qualified privilege on the ground of common interest relating to a specialist subject matter as well as on the ground of reply to attack.[169]

391 In Trumm v Norman,[170] the defendant was the acting general secretary of a union, which had been involved in a series of disputes with the plaintiff, a former member of the union. The plaintiff maintained a website on which he published material about those disputes. By way of response, and for the stated purpose of '[setting] the record straight', the defendant published a circular to the members of the union. Identical words were printed in the union's in-house magazine as well as on its website. The magazine was predominantly distributed to members and former members of the union, but 202 copies were distributed to independent persons including Members of Parliament and journalists. In relation to the union's website, there was evidence that in one month, there were 18,133 visits to the website but it was not possible to determine whether anyone had read the page containing the words complained of.

392 The High Court of England and Wales was required to decide whether the defence of qualified privilege applied to a particular statement. It was common ground that the defence applied in respect of communication of the statement to members of the union, regardless of whether this was because the defendant was under a duty to communicate the information to them, or shared a common interest with them. Tugendhat J stated that:

The defence of qualified privilege reflects the law's recognition that it is in the public interest that [a] person should be allowed to speak freely on occasions when it is their duty to speak (whether the duty is legal, social or moral), and the person to whom they speak has a corresponding interest to receive the communication. The same is the case where the maker of the statement is acting in pursuance of an interest of his, and the person to whom he publishes the words complained of has a corresponding interest or duty in relation to the communication.[171]

393 The Court held that the position was different with regard to non-members of the union such as journalists to whom no duty could be said to be due, and who did not share a common or reciprocal interest in the affairs of the union. This was because their interest was no greater than that of ordinary members of the public.[172] Tugendhat J stated:

In my judgment it is clear that qualified privilege cannot be relied upon as a defence to publications to journalists and other subscribers to, or publishees of, [the magazine], who cannot be shown to have any interest in the affairs of [the union] over and above that of any ordinary member of the public.[173]

394 In Trumm, the defendant could have communicated solely with members of the union but he chose to communicate with non-members also. Tugendhat J accepted that the union's website was one of specialist interest and thus it was unlike a media group website.[174] His Lordship noted that the relevant page on the website could be accessed by any member of the public,[175] but there was no evidence from which he could infer that a non-union member had read the impugned passage.[176]

395 The common law defence of qualified privilege can be defeated by malice.[177] To establish malice, the plaintiff must show that the dominant purpose or motive of the defendant, which actuated the publication, was a purpose or motive that was foreign to the occasion of privilege, and, in that sense, was improper.[178] The purpose or motive of a person who publishes defamatory material can be inferred from what they did, said or knew.[179]

396 In Roberts v Bass,[180] the plaintiff sued two defendants in relation to statements made in a how-to-vote card and other electoral material. Gaudron, McHugh and Gummow JJ[181] set out the following principles in relation to malice:

(a) Mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice because proof is also required that they actuated the publication. Where one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication.[182]

(b) Neither lack of honest belief in the truth of a defamatory statement nor knowledge of its falsity ipso facto destroys the defence of qualified privilege. However, proof that the defendant knew that the defamatory statement was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive, except where the defendant was under a legal duty to publish the information irrespective of a belief in its truth. This is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive which actuates the publication, even if the plaintiff is unable to identify that motive.[183]

(c) Where the defendant erroneously believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion.[184]

(d) In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. Where the defendant's recklessness is so gross as to constitute wilful blindness, the law will treat it as equivalent to knowledge. In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper purpose. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant.[185]

(e) Mere lack of belief in the truth of the defamatory statement is not to be treated as if it were equivalent to knowledge of its falsity and therefore as almost conclusive proof of malice. That is because the ultimate issue is always whether the publication was made for a purpose foreign to the duty or interest that protects the occasion of the publication, not whether the defendant believed the matter to be true.[186] Evidence of lack of belief in the truth of a defamatory statement may, in combination with other evidence, give rise to an inference that the publication was actuated by an improper motive or purpose.[187]

(f) Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice, although in an extreme case it may be evidence of it. Mere failure to make enquiries or apologise or correct the untruth when discovered is not evidence of malice.[188]

(g) There is nothing improper about publishing relevant material with the motive of injuring the political reputation of a candidate at an election and causing the candidate to lose office - as that is central to the electoral and democratic process - provided that the defendant is using the occasion to express his or her views about a candidate for election.[189]

397 The motive with which a defendant on a privileged occasion makes a statement defamatory of the plaintiff is crucial. The intention to injure the plaintiff's reputation must be the dominant purpose of the publication. Knowledge that the statement will have the effect of injuring the plaintiff is not enough if the defendant is acting in accordance with a sense of duty or in bona fide protection of his or her own legitimate interests.[190]

398 In his defence, Mr Vakras has pleaded the following:

(a) in publishing the First Vakras Article, [Mr Vakras] was:

(i) seeking to warn other artists and members of the public about the [Artists'] negative experience exhibiting their artwork at the Gallery; and/or

(ii) responding to a defamatory attack by [Mr Cripps], namely [his] statement made publicly at the opening of the [Artists'] exhibition at the Gallery that [Mr Vakras'] exhibition was racist;

(b) accordingly, [Mr Vakras] had a duty and/or interest to publish the First Vakras Article;

(c) further, readers of the First Vakras Article had a corresponding interest and/or duty to receive from [Mr Vakras] the information referred to above;

and accordingly, the First Vakras Article was published on an occasion of qualified privilege.

399 Mr Gilbertson submitted that, as an exhibitor at the Gallery, Mr Vakras had a social or moral duty to warn other artists or exhibitors about the Artists' negative experiences in exhibiting their works at the Gallery and in dealing with Mr Cripps. Mr Gilbertson contended that the Artists' websites were 'special interest websites' and were dissimilar to websites of newspapers or other media organisations.[191] This was said to be because the websites related to the Artists' art and were likely to be read by persons with an interest in art or a connection with Mr Cripps, rather than by a casual web surfer.[192]

400 Mr Gilbertson also relied on the 'reply to an attack' principle of qualified privilege. He submitted that the Exhibition was open to the public, that the conversation of 18 June 2009 was overheard by other people, and that the Disclaimer was on open display at the Gallery.

401 In my opinion, the First Vakras Article was not published in the performance of a legal, social or moral duty or to protect a legitimate interest. This is because it was published to the world at large on a general website that was easily accessible by the public directly or through a search engine such as Google or Bing.

402 The Artists' websites are in a different category from the websites considered in Vassiliev. The latter were university websites and their subject matter - intelligence issues - was the same as the journal which only had about 146 subscribers in the United Kingdom. The Court found that it was likely that only those with an interest in the subject matter would have read the websites. Likewise, Mr Vakras' website was dissimilar to the union website that was considered in Trumm. That was a specialist website that catered for the members of the union and there was no evidence that any non-members had read the impugned passage.

403 By contrast, the Artists' websites are not specialist websites. Although they focused on art, they also dealt with other subjects. Ms Raymond's website contained a biography section, an events section and a design section and various hyperlinks. Mr Vakras' website dealt with his art and his philosophy and included details of his work and the exhibitions which have featured his work.

404 In any event, the Artists' websites are not directed to members of any organisation or to persons with a particular interest in a specialist area such as the arts. No restrictions were placed on who could access the websites. Mr Vakras gave evidence that although he was aware that steps could be taken to prevent search engines from directing viewers to the website, he did not take those steps. Even if it could be said that the websites might have particular appeal to artists, unlike Vassiliev and Trumm, there was evidence that the First Vakras Article and the Raymond Article were read on the websites by persons who were not artists.[193] There is no evidence that the websites had any particular readership or following, or that their readers shared any common characteristic akin to being members of the same union, association or interest group.

405 In addition, care must be taken in relation to cases that were decided at times when search engines such as Google and Bing were not in widespread use as convenient mechanisms for discovering what appears on the internet about a person. It is notorious, and a matter upon which I can take judicial notice, that certainly by 1 April 2010, search engines - particularly Google - were in widespread use for this purpose.[194] The evidence of the Artists set out at [269] to [270] supports this conclusion. The role of search engines was not mentioned in either Vassiliev or Trumm.

406 The evidence summarised at [258] to [270] above establishes that Google has been used to access the First Vakras Article by persons who are not artists, namely, Ms Paul and her friends. Further, contrary to Mr Gilbertson's submissions, at [275] above I concluded that some persons read the First Vakras Article after randomly coming across it on the internet.

407 For the above reasons, I find that the publication of the First Vakras Article on Mr Vakras' website was not done in the performance of any legal, social or moral duty of Mr Vakras or to protect any interests of Mr Vakras. Further, because the website has at all relevant times been accessible by anyone with internet access, and was accessed by persons with diverse backgrounds and interests, the persons to whom the First Vakras Article was published did not have any corresponding duty or interest in receiving that article.

408 I reject Mr Gilbertson's submission that the defence of qualified privilege applies to the First Vakras Article because it constitutes a reply to an attack upon Mr Vakras by Mr Cripps. This submission relies on the proposition that at the meeting on 18 June 2009, Mr Cripps stated in front of 30 to 40 people on the ground floor of the Gallery that Mr Vakras is a racist and/or that his artwork is racist, and that the Disclaimer was on open display at the Gallery.

409 The above proposition cannot be sustained because I have found that Mr Cripps did not state that Mr Vakras is a racist or that his artwork is racist. Further, in relation to the meeting on 18 June 2009, I have found that the conversation occurred on the first floor and that parts of that conversation may have been heard by five to seven people. Although Mr Gilbertson did not expressly rely on the conversation on 24 June 2009 being overheard by a visitor to the first floor of the Gallery, I have found that the contents of the conversation were not as alleged by the Artists and that the visitor did not overhear the conversation.[195]

410 The fact that the Disclaimer was on open display at the Gallery is immaterial. The Disclaimer did not constitute an attack on Mr Vakras or his artwork.[196]

411 Even if the position had been that Mr Cripps had said that Mr Vakras is a racist and/or that his artwork is racist in front of 30 to 40 people at the Gallery - or that the visitor on 24 June 2009 had heard the conversation - the defence of qualified privilege would not apply. This is because Mr Vakras' attacks upon Mr Cripps were not commensurate with the original attack on Mr Vakras and/or his artwork and were not for the purpose of vindicating Mr Vakras' reputation or protecting his interests, as evidenced by the disproportionate nature of that response, the breadth of the audience to which it was directed and the duration of the attack (the First Vakras Article was never withdrawn and continues to be accessible on Mr Vakras' website). The same analysis would have applied to the Disclaimer if it had constituted an attack on Mr Vakras or his artwork.

412 A transient verbal accusation of racism in front of 30 to 40 people - if it had occurred - could have legitimately elicited an immediate verbal response to the same audience. It could also have legitimately elicited a later response to a targeted group that was likely to include that audience, such as persons on the guest lists for the openings on 18 June 2009 (if any such lists existed) or those on the Gallery's mailing list. A subsequent response extending well beyond the subject matter of the alleged initial attack that was published on a website that has been accessible by the public between 21 August 2009 and now - years after the initial attack and even the closure of the Gallery - undoubtedly exceeds what was necessary or appropriate to protect Mr Vakras' reputation or his interests.

413 The facts in this case are very different from those in Trad where Mr Trad's attack on radio station 2GB was made at a rally that was attended by 5,000 people including media representatives. Likewise, the present facts are materially different from those in Vassiliev, where the attack was in a published book and the response was in a specialist journal and specialist websites.

414 In relation to malice, Mr Gilbertson submitted that warning other artists or exhibitors about the Artists' negative experiences in exhibiting their works at the Gallery and dealing with Mr Cripps implies an intention to injure Mr Cripps' reputation. Mr Gilbertson relied on Roberts[197] for this proposition. According to Mr Gilbertson, malice would be made out only if Mr Vakras had some other motive foreign to the occasion of the privilege and which actuated the relevant publication. Mr Gilbertson submitted that there is no evidence of any other motive and none had been submitted by Mr Dibb.

415 I reject Mr Gilbertson's submission. In my opinion, Mr Cripps has established malice. Although Mr Vakras may have subjectively believed that the contents of the First Vakras Article were true - except insofar as I have held that the article contains deliberate lies[198] - the First Vakras Article Imputations (other than the Duress Imputation) were not true. Significantly, in publishing the article, Mr Vakras was not actuated by the purposes set out at [398] above but by the dominant purpose of smearing Mr Cripps and maximising the damage to his reputation and busines[199]nterests.199 That purpose was improper in the sense that it was foreign to any privileged occasion that might otherwise have existed.

416 I have based my conclusions at [415] above on the following:

(a) The unprovoked and vicious nature of Mr Vakras' attack on Mr Cripps in the First Vakras Article and the excessive mode of publication adopted.

(b) The statement in Mr Vakras' email of 26 June 2009 to Mr Cripps that the Artists have ill-will towards Mr Cripps.[200]

(c) The deliberate falsities in the First Vakras Article about the statements and conduct of Mr Cripps on 18 and 24 June 2009.[201]

(d) The unprovoked and wholly unjustified attack in the First Vakras Article on the staff and volunteers at the Gallery for the stated reason that they acquiesced in Mr Cripps' views because they never contradicted Mr Cripps.

(e) The twice occurring 'cancel' sign graphic in the First Vakras Article.[202]

417 Mr Gilbertson's reliance on Roberts for the proposition that an intention to injure reputation is not an improper motive is misconceived. That is because the observations in that case about a motive to injure reputation were made in the special context of a motive to injure the political reputation of a candidate at an election.[203]

418 For the above reasons, Mr Vakras has failed to establish the common law defence of qualified privilege in relation to any of the First Vakras Article Imputations.

Mr Vakras' liability to Redleg: First Vakras Article

419 In relation to the publication of the First Vakras Article on and from 1 April 2010, see [257] to [275] above.

420 Redleg pleaded the following imputation which was said to be carried by the First Vakras Article: '[Redleg] is operated and owned by [Mr Cripps], and because of the [First Vakras Article Imputations, as pleaded by Mr Cripps], [Redleg] is therefore a disreputable company and not to be trusted.' Mr Dibb submitted that this imputation could be simplified as follows: '[Redleg] is owned and operated by [Mr Cripps] and is therefore a disreputable company and not to be trusted.'

421 Mr Vakras has denied that the above imputation is carried by the First Vakras Article and has relied on the following 'Polly Peck' imputation: 'In its dealings with artists who exhibit their works at the Gallery, [Redleg] is a company of questionable repute and not to be trusted'.

422 In my opinion, the 'Polly Peck' imputation does not satisfy the principles in Hore-Lacy[204] because it is different from Mr Cripps' pleaded imputation in two material respects. First, the 'Polly Peck' imputation is confined to Redleg's dealings with artists who exhibit their works at the Gallery whereas Mr Cripps' pleaded imputation is not so confined. Secondly, the 'Polly Peck' imputation states that Redleg is 'of questionable repute' whereas Mr Cripps' pleaded imputation states that it is 'a disreputable company'. It is one thing to raise a doubt about a company's reputation, it is quite another to definitively state that it is disreputable.

423 The First Vakras Article treats Mr Cripps and Redleg as one and attributes all of Mr Cripps' alleged negative attributes to Redleg. Also, by referring to Redleg's arts transportation business, and asking rhetorically whether Redleg can be trusted, the article attacks Redleg's reputation in relation to its entire business activities rather than simply in relation to its dealings with artists who exhibit their works at the Gallery. Further, the First Vakras Article expressly describes the Gallery as 'disreputable'.

424 Accordingly, I find that Mr Cripps' pleaded imputation, with a minor amendment, is carried by the First Vakras Article. The imputation that is carried is as follows: 'Redleg is operated and owned by Mr Cripps and because he is a disreputable person, Redleg is a disreputable company which is not to be trusted'. I will refer to this imputation as the 'Redleg Trust Imputation'.

425 Mr Vakras has denied that the First Vakras Article is defamatory of Redleg but has not made any specific submissions on this issue.

426 I have already concluded that the First Vakras Article Imputations are defamatory of Mr Cripps. As the First Vakras Article conveys the message that, because the disreputable Mr Cripps operates and owns Redleg, it is a disreputable company which is not to be trusted, the article defames Redleg. In order for a company carrying on business to succeed, it needs to attract customers. To say of such a company that it is disreputable and not to be trusted damages its business reputation because customers are less likely to do business with it.

Defences of justification at common law and under the Act

427 The particulars upon which Mr Vakras relied in relation to both defences of justification for the 'Polly Peck' imputation pleaded by him were to the effect that the adverse statements and conduct of Mr Cripps upon which Mr Vakras relied to justify the First Vakras Article Imputations - or, where relevant, the 'Polly Peck' imputations pleaded by him - were said and done by Mr Cripps on behalf of Redleg and therefore it is a company of questionable repute and not to be trusted.

428 Mr Gilbertson submitted that Mr Cripps and Redleg were treated synonymously and that the evidence of Ms Leveson establishes that the 'Polly Peck' imputation pleaded by him is true. Ms Leveson's evidence is set out at [639] below. For present purposes it is sufficient to note that, in 1997, Ms Leveson was told by the President of the Australian Registrars Committee 'that on no account should [Ms Leveson] deal with Mr Cripps or Redleg in [her] professional work, that he had a reputation for being extremely difficult to work with'.

429 In my opinion, Mr Vakras has failed to establish that the 'Polly Peck' imputation pleaded by him - less still the Redleg Trust Imputation - was true in substance and in fact or substantially true.

430 For the reasons already discussed in relation to the First Vakras Article Imputations, the evidence has not established that Mr Cripps is a disreputable person or that he or Redleg have engaged in any conduct that provided grounds for not trusting Redleg. Although the Duress Imputation was substantially true, it is insufficient to establish that Mr Cripps was disreputable or that there was any other reason for concluding that Redleg lacked commercial integrity and therefore should not be trusted. Further, Ms Leveson's evidence was vague and general and did not provide any reason why she was advised not to engage in any business with Mr Cripps other than that he 'had a reputation for being extremely difficult to work with'.[205] It is also significant that the evidence related to a conversation in 1997 and had no necessary relevance as at 2009. Overall, the evidence upon which Mr Vakras has relied is insufficient to justify a conclusion that Redleg is a company of questionable repute and not to be trusted, less still a conclusion that it is a disreputable company which is not to be trusted.

431 It follows from the above discussion that Mr Vakras cannot rely on the defences of justification.

432 Although Mr Vakras has pleaded the defences of fair comment at common law, honest opinion under the Act and qualified privilege at common law, he did not make any submissions on those defences.

433 In relation to the defences of fair comment at common law and honest opinion under the Act, I am prepared to assume that the Redleg Trust Imputation constitutes a comment.

434 The matter of public interest upon which Mr Vakras relied was 'whether in its dealings with artists who exhibit their works at the Gallery, [Redleg] is a company of good repute that could be trusted.' As the Redleg Trust Imputation does not concern the management of a gallery, Littler[206] does not provide any support for the proposition that it relates to a matter of public interest.

435 For the reasons discussed at [368] to [375] above in relation to Mr Cripps and at [427] to [431] above in relation to the defences of justification, I am not satisfied: that the Redleg Trust Imputation is based on facts stated or referred to in the First Vakras Article; that any such facts, if so stated or referred to, are true; or that an honest person might reasonably form the opinions embodied in the Redleg T[207]t Imputation on the stated or referred facts.207 My view would be the same even if the test were whether a fair minded person acting honestly might form the relevant opinion rather than whether[208] honest person acting reasonably might do so.208 I am also not satisfied that the Redleg Trust Imputation is based on material that is substantially true.

436 For the reasons set out at [435] above, the defences of fair comment at common law and honest opinion under the Act cannot succeed in relation to the Redleg Trust Imputation.

437 For the purposes of the defence of qualified privilege at common law, in his defence, Mr Vakras has pleaded the following:

(a) in publishing the First Vakras Article, [Mr Vakras] was seeking to alert other artists and members of the public to concerns as to whether [Redleg] could be trusted;

(b) accordingly, [Mr Vakras] had a duty and/or interest to publish the First Vakras Article;

(c) further, readers of the First Vakras Article had a corresponding interest and/or duty to receive from [Mr Vakras] the information referred to above;

and accordingly, the First Vakras [A]rticle was published on an occasion of qualified privilege.

438 For the reasons set out at [401] to [418] above, the defence of qualified privilege at common law is not made out.

Mr Vakras' liability to Mr Cripps: Second Vakras Article

439 The evidence of publication of the Second Vakras Article on and from 1 April 2010, which I accept, is summarised below.

440 Mr Cripps gave evidence that he had seen the Second Vakras Article but could not say when he first saw it. He recalled that one of his legal advisers had shown it to him while preparing his case. Obviously, that legal adviser read the article.

441 Ms Sarah Curro - whose evidence is set out at [260] above - said that she became aware of and skimmed either the First Vakras Article or the Second Vakras Article in around July 2013 when a friend from the Melbourne Symphony Orchestra sent it to her.

442 Ms Elizabeth Paul gave evidence that she had seen the Second Vakras Article on the internet after Mr Cripps told her there had been an addition to what was on Mr Vakras' website. Ms Paul could remember seeing the Addendum because she telephoned Mr Cripps and because 'it said [Mr Cripps] was sexually harassing the staff and volunteers which was new.' Ms Paul said that she occasionally looked at the article again over a period of around 12 months. As set out at [262] above, Ms Paul also said that friends of Mr Cripps and friends of hers have also seen the Second Vakras Article.

443 Ms Danuta Czarski gave evidence that she had seen the Second Vakras Article on the internet, including the Addendum, on one occasion in late March or on 1 or 2 April 2011.

444 Mr Stephen Sedergreen gave evidence that he had seen the Impugned Articles but had not read them.

445 Mr Vakras gave evidence that he deleted the parts of the Second Vakras Article that alleged that Mr Cripps had intimidated artists and had sexually harassed staff and volunteers within 24 to 36 hours after he uploaded the Addendum. As Mr Vakras' evidence was not challenged, I accept it. Given Mr Vakras' tendency to tailor his evidence to suit his case, I find that the Addendum was on Mr Vakras' website in its original form for 36 hours rather than 24 hours.

446 Mr Vakras also gave evidence that he modified the Addendum because the Second Vakras Article was about Mr Cripps' dealings with the Artists and the deleted parts did not relate to that theme. I do not accept this explanation. As the writ in the Defamation Proceeding was filed on 1 April 2011 and the Addendum - which refers to the writ as 'a summons' - was uploaded on 2 April 2011, I infer that the Addendum was published in response to Mr Vakras being served with the writ. The likely explanation for the deletion of the relevant parts was a perception by Mr Vakras - possibly based on legal advice - that retention of those parts would damage his position in the Defamation Proceeding.

447 Had Mr Vakras been truly motivated by a desire to limit the Second Vakras Article to the Artists' dealings with Mr Cripps, he would have removed other parts of the First Vakras Article that had nothing to do with them, including reference to Redleg's arts transportation business.

448 My conclusions at [275] above about the Google and Bing search engines have limited application to the Second Vakras Article because of the brevity of the period that the impugned passages were accessible on the internet.

449 It follows from the above that I am satisfied that the Second Vakras Article has been published since 1 April 2010.

450 The first imputation upon which Mr Cripps has relied in relation to the Second Vakras Article is that his 'pattern of intimidating behaviour has left other artists too fearful to describe to the public their own negative experience with [Mr Cripps]'. Mr Vakras has denied that this imputation is carried by the Second Vakras Article and has relied on the following 'Polly Peck' imputation: '[Mr Cripps'] intimidating behaviour has left other artists reticent to describe publicly their own negative experiences with him'.

451 The relevant part of the Second Vakras Article is as follows:

[Mr Cripps] has undertaken to claim that what I (and my co-exhibitor) write 'defames' him, as if whatever false reputation he might claim to have - which has been arrived at by bullying, badgering, and threatening legal action against others which has resulted in them remaining silent - is his [true] character.

452 In my opinion, Mr Cripps' pleaded imputation is not carried by the Second Vakras Article because the phrase 'too fearful' suggests that physical violence, as distinct from threats of legal action, may be involved.

453 Contrary to Mr Gilbertson's submission, the 'Polly Peck' imputation does not satisfy the principles in Hore-Lacy.[209] The phrase 'intimidating behaviour' is materially different from 'pattern of intimidating behaviour' because the former is capable of being confined to a single instance of intimidating behaviour and fails to convey repetition.

454 In my opinion, the following imputation is carried by the Second Vakras Article: 'Mr Cripps' pattern of intimidating behaviour has left other artists reticent to describe publicly their own negative experiences with him'. This imputation, which I will refer to as the 'Intimidating Imputation' is consistent with the principles in Hore-Lacy.

455 The second imputation upon which Mr Cripps has relied in relation to the Second Vakras Article is that Mr Cripps 'sexually harasses volunteers and staff at his gallery'. Mr Vakras has denied that this imputation is carried by the Second Vakras Article and has relied on the following 'Polly Peck' imputation: '[Mr Cripps] has sexually harassed volunteers and staff at his gallery'.

456 The relevant part of the Second Vakras Article is as follows:

[Mr Cripps] has been sexually harassing staffs and volunteers as well. How do I know? Because he's been telling it to his staffs every next day like he's done something awesome. I need to stop this and want to save poor girls who are volunteering for gallery assistant.

457 The statement quoted at [456] above conveys the message that Mr Cripps has sexually harassed volunteers and staff in the past, and unless something is done to stop him, he will continue to do so. Mr Cripps' pleaded imputation is not carried by the statement in the Addendum because that imputation suggests that Mr Cripps always harasses volunteers and staff. The 'Polly Peck' imputation does not satisfy the principles in Hore-Lacy because it deals only with past sexual harassment. I reject Mr Gilbertson's submission that the statement in the Addendum is confined to the past tense.

458 In my opinion, the following imputation is carried by the Second Vakras Article: 'Mr Cripps has sexually harassed volunteers and staff at the Gallery and, unless he is stopped, he will continue to do so'. That imputation, which I will refer to as the 'Harassment Imputation', is consistent with the principles in Hore-Lacy.

459 I will refer to the Intimidating Imputation and the Harassment Imputation as the 'Second Vakras Article Imputations'. For convenience, these imputations are set out in Appendix 6.

460 Mr Vakras has denied that any of the Second Vakras Article Imputations are defamatory. However, he did not make any submissions on this issue.

461 In my opinion, the Intimidating Imputation is defamatory of Mr Cripps because, read in context, it conveys a message that Mr Cripps has managed to conceal his real reputation by using threats of legal action against artists wanting to tell the truth about him and that this strategy has deterred artists who have had negative experiences with him from publicly disclosing them. The flavour of the article is that Mr Cripps' modus operandi is to use high-handed tactics to silence people who have had negative experiences with him because he does not want the truth about himself to become public.

462 The Harassment Imputation constitutes a serious defamation of Mr Cripps. The community views sexual harassment in the workplace as a serious abuse of power when it is perpetrated by an employer against persons under his or her authority. The community's strong disapproval of such conduct is reflected in equal opportunity legislation which prohibits the conduct. An employer who harasses staff is viewed with disdain because they are regarded as someone who exploits their position and takes advantage of the vulnerability of their subordinates for the purpose of satisfying their selfish sexual desires.

Defences of justification at common law and under the Act

463 Mr Vakras has relied on both defences of justification in respect of each of the 'Polly Peck' imputations that he has pleaded.

464 In relation to the first imputation dealing with intimidating behaviour, Mr Vakras has relied upon Mr Cripps' alleged conduct towards Ms Kim,[210] Ms Bowman[211] and another unnamed exhibitor who did not give evidence.

465 The particulars upon which Mr Vakras has relied in relation to the second imputation dealing with sexual harassment concern Mr Cripps' alleged conduct towards two female volunteers, Ms Bui and Ms Li, and a third unnamed female member of staff of the Gallery or a volunteer. Only Ms Li gave evidence.[212] In relation to the third individual, Mr Vakras gave the following particulars:

[I]n or about November 2009, [Mr Cripps] said to a female staff member or volunteer at the Gallery, whose identity the [Artists] object to disclosing prior to trial, that she 'looked like she had been shagging all night' or words to that effect.

466 In my opinion, Mr Vakras has failed to establish that the two 'Polly Peck' imputations pleaded by him - less still the Second Vakras Article Imputations - are true in substance and in fact or are substantially true.

467 The only person who gave evidence in relation to intimidating behaviour was Ms Kim who, when asked about her willingness to give evidence, said that she was asked to give evidence a number of times by the Artists and that she was 'a little bit reluctant' because 'it was such a long time ago' and she did not want to 'drag this on'. This evidence fell far short of proving that the 'Polly Peck' imputation pleaded by Mr Vakras was true in substance and in fact or that it was substantially true.

468 For the reasons set out at [196] to [203] above, the evidence did not establish that Mr Cripps had sexually harassed any member of staff or any volunteer. Accordingly, the evidence has not established that the 'Polly Peck' imputation pleaded by Mr Vakras was true in substance and in fact or that it was substantially true.

469 For the reasons discussed at [466] to [468] above, Mr Vakras has not made out the defence of justification at common law or under s 25 of the Act.

470 Mr Vakras has pleaded the defence of qualified privilege at common law and has relied upon the following particulars:

(a) in publishing the Second Vakras Article, [Mr Vakras] was seeking to warn other artists and members of the public about the negative experiences that the [Artists] and others had had with [Mr Cripps] who was the manager and operator of the Gallery;

(b) accordingly, [Mr Vakras] had a duty and/or interest to publish the Second Vakras Article;

(c) further, readers of the Second Vakras Article had a corresponding interest and/or duty to receive from [Mr Vakras] the information referred to above;

and accordingly, the Second Vakras Article was published on an occasion of qualified privilege.

471 Mr Vakras did not make any submissions on this defence. To the extent that Mr Vakras persisted with this defence, the discussion at [401] to [407] above concerning the First Vakras Article is equally applicable to the Second Vakras Article. Accordingly, the defence cannot succeed.

Ms Raymond's liability to Mr Cripps: Raymond Article

472 The evidence of publication of the Raymond Article on and from 1 April 2010, which I accept, is summarised below.

473 Mr Cripps said that he read the Raymond Article when his lawyer gave it to him. Obviously the lawyer read the article. Mr Cripps said that 'a range of people' have read the Raymond Article and that 'there would be a good ... handful of people' who would have spoken to him about the article. He added that he has a number of friends who keep him updated 'on what's going on'.

474 Ms Elizabeth Paul gave evidence that she had seen the Raymond Article more than once. She could not remember when she first saw the article, but she probably checked back five or six times. Every few months she Googled Mr Cripps' name to see if the article would be included in the search results. As set out at [262] above, Ms Paul also said that friends of Mr Cripps and friends of hers have also seen the Raymond Article.

475 Ms Danuta Czarski gave evidence that she had definitely seen the Raymond Article but could not recall how many times she had seen it. However, as she said that she remembered reading about the life model, she must have read the article after 6 June 2010. This is because the text about the life model was added to the Raymond Article on that day.

476 Mr Stephen Sedergreen gave evidence that he had seen the Impugned Articles but had not read them.

477 The discussion at [265] to [274] above about the First Vakras Article also applies to the Raymond Article.

478 Based on the above evidence and discussion, I make the following findings about the publication of the Raymond Article on and from 1 April 2010:

(a) The article was read by Ms Paul; friends of Ms Paul; friends of Mr Cripps; a handful of other people; and Ms Czarski.

(b) Friends of Mr Cripps, friends of Ms Paul and a handful of other people saw the article without any prompting from anybody else.

(c) Ms Paul accessed the article by Googling Mr Cripps or the Gallery.

(d) It is highly likely that in the period from 1 April 2010 until now, a large number of people have read the article. Some of them did so because they actively searched for the article by using a search engine such as Google or Bing or otherwise. However, I infer that some did so randomly by 'surfing' the internet or by following links that ultimately took them to the article. It is not possible for me to make a specific finding on how many people - in addition to those already referred to above - read the article and what proportion did so after deliberately searching for it or after randomly finding it.

479 The first four imputations upon which Mr Cripps has relied in relation to the Raymond Article are as follows:

(a) '[Mr Cripps], as Director of the Gallery has repeatedly engaged in behaviour that humiliates and embarrasses the artists he represents';

(b) '[Mr Cripps], as Director of the Gallery, has repeatedly engaged in behaviour that bullies and abuses the artists he represents';

(c) '[Mr Cripps] as Director of the Gallery, has repeatedly engaged in [behaviour] that destroys the exhibitions of the artists he represents'; and

(d) '[Mr Cripps], as Director of the Gallery, has repeatedly engaged in [behaviour] that sullies the reputations of the artists he represents'.

480 Ms Raymond has denied that the above imputations are carried by the Raymond Article and has relied on the following 'Polly Peck' imputations:

(a) 'as the operator of the Guildford Lane Gallery, [Mr Cripps] has repeatedly engaged in behaviour that humiliates and embarrasses artists who exhibit their works there';

(b) 'as the operator of the Guildford Lane Gallery, [Mr Cripps] has repeatedly engaged in behaviour that bullies and abuses artists who exhibit their works there';

(c) 'as the operator of the Guildford Lane Gallery, [Mr Cripps] has repeatedly engaged in behaviour that destroys the exhibitions of the artists who exhibit their works there'; and

(d) 'as the operator of the Guildford Lane Gallery, [Mr Cripps] has repeatedly engaged in behaviour that sullies the reputations of the artists he represents'.

481 Mr Dibb has properly conceded that the above 'Polly Peck' imputations are consistent with the principles in Hore-Lacy.[213] Accordingly, I will refer to those imputations as the 'Humiliation Imputation', the 'Abuse Imputation', the 'Destruction Imputation', and the 'Sullies Imputation', respectively.

482 The fifth imputation upon which Mr Cripps has relied in relation to the Raymond Article is that '[Mr Cripps], a professional gallerist, ceases to support and actively sabotages the artists he represents once he can no longer make any further profit from them'. Ms Raymond has denied that this imputation arises and has relied on the following 'Polly Peck' imputation: '[Mr Cripps] has failed to support and has sabotaged the exhibitions of some of the artists who have exhibited their works at the Guildford Lane Gallery'.

483 Mr Gilbertson submitted that the sting in the imputation is sabotage.

484 In my opinion, Mr Cripps' pleaded imputation is not carried by the Raymond Article because it refers to the sabotaging of artists Mr Cripps represents whereas the article relates to the sabotaging of exhibitions of artists who exhibit at the Gallery. I have also concluded that the 'Polly Peck' imputation does not satisfy the principles in Hore-Lacy. This is because its omission of the profit element, its focus on the past tense and the qualification of 'some of the artists' make it materially different from Mr Cripps' pleaded imputation.

485 The imputation that is carried by the Raymond Article, which I will refer to as the 'Sabotage Imputation', is that 'Mr Cripps, 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 profit from them.'

486 The description of Mr Cripps as a professional gallerist is conveyed by the words 'the director of a gallery' and 'the gallery Director', and the general conflation of Mr Cripps and the Gallery in the Raymond Article. The message about repetitive, ongoing conduct is conveyed by the words 'again, and again, and again', '[t]his will happen to you too', 'he will treat others this way' and 'prospective artists ... it comes at a significant cost'. The message that Mr Cripps sabotages exhibitions is conveyed by the words 'a complete sabotage'. The message that Mr Cripps ceases to support and actively sabotages exhibitions once he can no longer make any profit from them is conveyed by the words 'the gallery had all the money it was ever going to get out of us after all and didn't need to support sales of our art or our self-produced catalogue in order to make any profit. It is all about the money at Guildford Lane Gallery.'

487 The sixth imputation upon which Mr Cripps has relied in relation to the Raymond Article is that '[Mr Cripps], in his arts transportation business, is universally despised'. Ms Raymond has denied that this imputation is carried by the Raymond Article and has relied on the following 'Polly Peck' imputation: '[Mr Cripps] is a person who is widely despised.'

488 In my opinion, the 'Polly Peck' imputation is inconsistent with the principles in Hore-Lacy. On the one hand, by omitting the qualifying words 'in his arts transportation business' the 'Polly Peck' imputation is more serious than Mr Cripps' pleaded imputation. On the other hand, the substitution of 'widely despised' for 'universally despised' substantially reduces the sting of Mr Cripps' pleaded imputation. I reject Mr Gilbertson's submission that to say that someone is 'widely despised' is not substantially different from saying that 'in his arts transportation business [Mr Cripps] is universally despised'.

489 In my opinion, Mr Cripps' pleaded imputation, which I will refer to as the 'Despised Imputation', is carried by the Raymond Article because of the words 'this man also runs Red Leg an arts transportation company, in this context I am aware that he is professional avoided' and that 'he is, as reported to me, "universally despised"'.

490 The seventh imputation upon which Mr Cripps has relied in relation to the Raymond Article is that '[Mr Cripps], by reason of his ignorance of art, is not a fit and proper person to be a gallerist'. Ms Raymond has denied that this imputation is carried by the Raymond Article but has not pleaded a 'Polly Peck' imputation. In my opinion, the article, when read as a whole, clearly carries the pleaded imputation, which I will refer to as the 'Unfit Imputation'.

491 The whole tenor of the Raymond Article is that Mr Cripps is not a fit and proper person to be a gallerist. Although the article does not expressly state that Mr Cripps is ignorant of art, that message permeates the article, as it conveys that Mr Cripps' criticisms of the Exhibition and the installation of the Disclaimer arose out of such ignorance. The article also suggests that Mr Cripps and the Gallery are 'all about the money' rather than the art. The statement that '[i]f it were about the art, the gallery Director would of course already know that Surrealism is ...' clearly implies that Mr Cripps is ignorant about Surrealism.

492 I will refer to the Humiliation Imputation, the Abuse Imputation, the Destruction Imputation, the Sullies Imputation, the Sabotage Imputation, the Despised Imputation and the Unfit Imputation as the 'Raymond Article Imputations'. For convenience, those imputations are set out in Appendix 6.

493 Ms Raymond has denied that any of the Raymond Article Imputations are defamatory. However, she has not made any specific submissions on this issue.

494 In my opinion, all of the Raymond Article Imputations are defamatory.

495 The Humiliation Imputation, the Abuse Imputation, the Destruction Imputation and the Sullies Reputation individually, and in the context of each other, convey the message that Mr Cripps is not a fit person to operate any gallery. In order for Mr Cripps to operate the Gallery as a successful business, it is necessary that he be well regarded by artists who may potentially exhibit their artwork at the Gallery. The above mentioned imputations, individually and collectively, damage Mr Cripps' standing in the arts community and adversely affect Mr Cripps' ability to conduct the business of the Gallery.

496 The Sabotage Imputation is clearly defamatory of Mr Cripps, as the assertion that Mr Cripps actively sabotages exhibitions once he can no longer make a profit from them would cause prospective exhibitors to shun Mr Cripps and the Gallery.

497 The Despised Imputation is self-evidently defamatory of Mr Cripps because, in the context of the Raymond Article as a whole, it conveys the message that there are good reasons why everyone despises Mr Cripps in relation to the arts transportation business, namely, all the negative attributes discussed in the Raymond Article. A statement that an individual is universally despised in a particular business would lead persons who have not previously dealt with the individual to form the view that they should also despise the individual and not have any dealings with them.

498 The Unfit Imputation is clearly defamatory of Mr Cripps. To say of a person who operates an art gallery that they are ignorant of art and are not a fit and proper person to be a gallerist is to assert that they lack the essential attributes they need to conduct their business.

499 Ms Raymond has relied on the defence of justification at common law in respect of each of the 'Polly Peck' imputations that she has pleaded. The defence has not been pleaded in relation to the Unfit Imputation.

500 In relation to the Humiliation Imputation, the particulars upon which Ms Raymond has relied included: the alleged berating of Ms Raymond at the meeting on 5 June 2009; the alleged statements and conduct of Mr Cripps at the meetings on 18 and 24 June 2009; the Disclaimer; and the evidence of Ms Bowman[214] and Ms Waddelton.[215]

501 In relation to the Abuse Imputation, the particulars upon which Ms Raymond has relied were those set out at [327] and [500] above.

502 In relation to the Destruction Imputation, the Sullies Imputation and the 'Polly Peck' version of the Sabotage Imputation, the particulars upon which Ms Raymond has relied were those set out at [319], [321], [323], [325] and [[](#_Ref > (a) in publishing the Raymond [A]rticle, [Ms Raymond] was seeking to warn other artists and members of the public about the negative experiences that the [Artists] and others had had with [Mr Cripps] who was the manager and operator of the Gallery;

(b) accordingly, [Ms Raymond] had a duty and/or interest to publish the Raymond [A]rticle;

(c) further, readers of the Raymond Article had a corresponding interest and/or duty to receive from [Ms Raymond] the information referred to above;

and accordingly, the Raymond Article was published on an occasion of qualified privilege.

525 Mr Gilbertson submitted that Ms Raymond is entitled to rely on 'the broad approach to interest for the purposes of internet publication and [the] broad approach to reply to attack.'

526 In my opinion, the discussion of the defence of qualified privilege at common law in relation to the First Vakras Article at [401] to [413] above also applies to the Raymond Article. On the basis of that discussion, the defence is not made out in relation to the Raymond Article Imputations. In addition to that discussion, I note the following:

(a) Mr Cripps at no stage 'attacked' Ms Raymond or her artwork, let alone in the presence of a member of the public. For the reasons I have already discussed, Mr Cripps did not 'attack' Mr Vakras or his artwork.[229]

(b) Mr Cripps has established malice. Although Ms Raymond may have subjectively believed that the contents of the Raymond Article were true - except insofar as I have held that the article contains deliberate lies[230] - the Raymond Article Imputations (other than the Humiliation Imputation and the Abuse Imputation) were not true. Significantly, in publishing the article, Ms Raymond was not actuated by the purposes set out at [524] above but by the dominant purpose of smearing Mr Cripps and maximising the damage to his reputation and busines[231]nterests.231 That purpose was improper in the sense that it was foreign to any privileged occasion that might otherwise have existed. I have based these conclusions on the following:

(i) The unprovoked and vicious nature of Ms Raymond's attack on Mr Cripps in the Raymond Article and the excessive mode of publication adopted.

(ii) The statement in Mr Vakras' email of 26 June 2009 to Mr Cripps that the Artists have ill-will towards Mr Cripps.[232]

(iii) The deliberate falsities in the Raymond Article about the statements and conduct of Mr Cripps on 18 and 24 June 2009 that I have summarised at [153], [159], [179], [187] and [195] above. By way of example, although Ms Raymond knew that Mr Cripps had made the 'lovely bottom' comment to only one woman (her superior at Museum Victoria, Ms Ladas), she used the plural 'women' in the Raymond Article. Ms Raymond also deliberately lied about who witnessed the conversation between the Artists and Mr Cripps on 24 June 2014: she stated that it was 'visitors' and 'at least 3 volunteers' when the only possible witnesses were a female visitor and Ms Pickett.

(iv) The unprovoked and wholly unjustified attack in the Raymond Article on the staff and volunteers at the Gallery for the stated reason that they did not support Ms Raymond's account of what occurred on 24 June 2009. Ms Raymond referred to them as 'cowards' and to Ms Pickett as Mr Cripps' 'silent lackey'.

(v) The 'cancel' sign graphic in the Raymond Article.[233]

Ms Raymond's liability to Redleg: Raymond Article

527 In relation to the publication of the Raymond Article on and from 1 April 2010, see [472] to [478] above.

528 The imputation upon which Redleg has relied in relation to the Raymond Article is that: '[Redleg] is operated by [Mr Cripps] and by reason of the [Raymond Article Imputations as pleaded by Mr Cripps], [Redleg] is a disreputable company to be avoided by artists and other potential customers.' Ms Raymond has denied that this imputation is carried by the Raymond Article and has relied on the following 'Polly Peck' imputation: '[Redleg] is a company of questionable repute and should be avoided by artists'.

529 Mr Dibb conceded that the 'Polly Peck' imputation is consistent with the principles in Hore-Lacy.[234] I do not agree. There is a material difference between the phrase 'a disreputable company' and 'a company of questionable repute' because the latter raises a doubt about the company's reputation whereas the former definitively states that the company is disreputable.

530 Mr Gilbertson submitted that Redleg's pleaded imputation is not carried by the Raymond Article because it does not say anything about Redleg being disreputable. I disagree. The article refers to Redleg and treats it and Mr Cripps as synonymous. Thus Mr Cripps' alleged negative characteristics are attributed to Redleg. The 'cancel' sign graphic also conveys that the company is disreputable and should be avoided.

531 In my opinion, the following imputation, which I will refer to as the 'Redleg Avoid Imputation' is carried by the Raymond Article: 'Redleg is a disreputable company and should be avoided by artists'.

532 Ms Raymond has denied that the Redleg Avoid Imputation is defamatory of Redleg. However, she has not made any specific submissions on this issue.

533 In my opinion, the Redleg Avoid Imputation is self-evidently defamatory of Redleg because the company is described as disreputable. The imputation contains the additional sting that artists should avoid it, that is, they should not conduct any business with it.

Defences of justification at common law and under the Act

534 Ms Raymond has relied on both defences of justification in relation to the 'Polly Peck' imputation that she has pleaded. She has based the defences on the evidence of Ms Leveson which is summarised at [639] below.

535 In my opinion, Ms Raymond has not established that the 'Polly Peck' imputation she has pleaded - less still the Redleg Avoid Imputation - was true in substance and in fact or substantially true. Redleg engaged in two business activities, namely, operator of the Gallery and arts transporter. I have already found that, while some exhibitors at the Gallery were unhappy with Mr Cripps' treatment of them, the Gallery had a good reputation as an exhibition space and most artists were happy with it.[235]

536 As for the arts transportation business, it is true that Ms Leveson said that she had been told by the President of the Australian Registrars Committee that on no account should she deal with Mr Cripps or Redleg in her professional work, and that Mr Cripps had a reputation for being extremely difficult to work with.[236] However, that was in 1997, 12 years before the Raymond Article was uploaded on the internet. Further, Dr Piscioneri said that while Mr Cripps had been 'castigated' by leading members of the arts transportation industry in Sydney, 'given the egos that operate in that industry [he] thought that possibly [Mr Cripps] might have even been doing something right'. Dr Piscioneri also said that Redleg was one of the two leading companies in that field.[237] Redleg could not have achieved this position if it was a company of 'questionable repute', less still if it was a disreputable company.

537 For the reasons set out at [535] to [536] above, Ms Raymond has failed to establish the defences of justification at common law and under the Act.

Defences of fair comment at common law and honest opinion under the Act

538 Ms Raymond has relied on the defence of fair comment at common law in relation to the Redleg Avoid Imputation.

539 Ms Raymond has relied on the following matter of public interest: 'whether in its dealings with artists who exhibit their works at the Gallery, [Redleg] is a company of good repute.'

540 Mr Gilbertson did not make any submissions on the defence of fair comment at common law.

541 The Redleg Avoid Imputation constitutes comment. However, as the comment does not concern a public performance at the Gallery or the management of the Gallery, it does not relate to a matter of public interest.[238]

542 For the reasons discussed at [535] to [536] above in relation to the defences of justification, I am not satisfied that the Redleg Avoid Imputation is based on facts stated or referred to in the Raymond Article as distinct from Ms Raymond's opinions and conclusions and evidence given at the trial. Even if the imputation was based on such facts, those 'facts' are not true because they principally relate to the Artists' versions of the events of 18 and 24 June 2009, which I have largely rejected. Further, Ms Raymond's views are not such that an honest person, however biased or prejudiced, might reasonably form them from the 'facts' stated or referred to in the Raymond Article. My view would be the same even if the test were whether a fair minded person acting honestly might form the relevant opinion rather than whether an honest person acting[239]asonably might do so.239

543 It follows that the defence of fair comment at common law has not been established.

544 I am not satisfied that the Redleg Avoid Imputation is based on material that is substantially true.

545 For the reasons set out at [541] and [544] above, the defence of honest opinion under the Act has not been made out.

546 Ms Raymond has relied on the defence of qualified privilege at common law in relation to the Redleg Avoid Imputation. In her defence, she has pleaded the following:

(a) in publishing the Raymond [A]rticle, [Ms Raymond] was seeking to warn other artists and members of the public to be wary of [Redleg];

(b) accordingly, [Ms Raymond] had a duty and/or interest to publish the Raymond [A]rticle;

(c) further, readers of the Raymond [A]rticle had a corresponding interest and/or duty to receive from [Ms Raymond] the information referred to above;

and accordingly, the Raymond [A]rticle was published on an occasion of qualified privilege.

547 Mr Gilbertson did not make any submissions in relation to the defence of qualified privilege.

548 In my opinion, the discussion at [401] to [413] and [526] above in relation to the First Vakras Article Imputations and the Raymond Article Imputations also applies to the Redleg Avoid Imputation. In accordance with that discussion, the defence of qualified privilege is not made out.

Damages - Statutory provisions and common law principles

549 Section 8 of the Act provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation is carried by the matter. Pursuant to s 39 of the Act, where the Court finds for the plaintiff as to more than one cause of action, the Court may assess damages in a single sum.

550 Section 34 of the Act provides that, in determining the amount of damages to be awarded in any defamation proceeding, 'the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.'

551 Section 35 of the Act imposes a statutory cap on damages for non-economic loss. The section is set out at [581] below and is discussed at [582] to [615] below.

552 Section 36 of the Act provides that, in awarding damages, the court is to disregard malice or other state of mind of the defendant at the time of publication or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.

553 Section 38 of the Act deals with mitigation of damages. It is set out at [576] below.

554 In Carson v John Fairfax & Sons Ltd,[240] Mason CJ, Deane, Dawson and Gaudron JJ identified three purposes to be served by an award of damages in a defamation proceeding:

(a) consolation for the personal distress and hurt caused to the plaintiff by the publication;

(b) reparation for the harm done to the plaintiff's personal and professional reputation; and

(c) the vindication of the plaintiff's reputation.[241]

The first two purposes are frequently considered together and constitute consolation for the wrong done to the plaintiff. Vindication looks to the attitudes of others to the plaintiff - the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation. The three purposes overlap considerably and ensure that the amount of the verdict is the product of inextricable considerations.[242] The three purposes do not constitute separate components which are to be assessed separately and then cumulated.[243]

555 Brennan J said in Carson that the chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation.[244] The sufficiency of the amount awarded is determined by reference to circumstances past and present, as well as what is required to vindicate the plaintiff's reputation in future. Damages in a defamation proceeding are not awarded to compensate a plaintiff for the loss in value in his or her reputation.[245]

556 His Honour said the following regarding the consequences of publication of a defamatory statement:

The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be 'shunned or avoided' is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.[246]

557 The three purposes of an award of damages identified in Carson were repeated by Hayne J (with whom Gleeson CJ and Gummow J agreed) in Rogers v Nationwide News Pty Ltd.[247] His Honour observed that with regard to (a) and (b) at [554] above, the award of damages must reflect the effect which the particular defamation had on the individua[248]laintiff.248 As such, drawing direct comparisons between awards made in particular cases is apt to mislead. 'The amount allowed in each case should reflect the subjective effect of the defamation on the plain[249]f.'249

558 The defendant's conduct in failing to apologise may be relevant to pure compensatory damages as well as aggravated compensatory damages.[250]

559 It was common ground that principles similar to the 'eggshell skull' principle apply in defamation law. The defendant must take the plaintiff as they find them.[251] In assessing injury to the plaintiff's feelings, the Court can also take into account the particular effect that the publication had on them,[252] and the plaintiff's subjective response is relevant.[253]

560 The defamatory nature of an imputation must be ascertained objectively by reference to general community standards, not by reference to sectional attitudes. But if the imputation is defamatory according to the standards of the community generally, an especially adverse impact of the defamatory statement on the plaintiff's reputation in the eyes of a particular group or class in the community, may be proved for the assessment of damages.[254]

561 The amount of damages must take into account not only the past damage to the plaintiff's reputation but also future damage due to the continuing availability of the defamatory material or its ongoing effects.[255]

562 The form and duration of the publication of a defamatory statement may be relevant to the assessment of damages. Where the defamatory statement remains on the internet over an extended period and can be accessed through a search engine, the damage to the plaintiff's reputation throughout the community may be more pronounced. A publication in that form may have a more injurious effect than publication on live or print media, because it is open to persons who hear about the publication to view it for themselves and to confirm its contents and effect.[256]

563 A corporate plaintiff is unable to recover damages for injury to feelings; its damages are limited to injury to its trading or business reputation.[257] These damages include actual monetary loss, and damage to trading reputation and goodwill to the extent that it can be assessed in monetary terms. A company must show that it had a trading reputation at the time of publication of the defamatory material.[258]

564 As stated at [87] above, s 5(1AAA) of the Limitation of Actions Act 1958 has the effect that damages are recoverable only for publication of the Impugned Articles on or after 1 April 2010, being one year prior to the commencement of the Defamation Proceeding on 1 April 2011.

565 A court may award damages for harm to a plaintiff's reputation arising out of the 'grapevine' effect of the publication of defamatory material. The relevant principles were considered by Kaye J in Belbin v Lower Murray Urban and Rural Water Corporation.[259] His Honour stated that the grapevine effect is no more than the realistic recognition by the law that, 'by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published.'[260] Members of the community communicate with one another about matters of public interest and concern; as such, the 'poison' of a libel may spread well beyond the confines of the person or persons to whom it was immediately published.[261]

566 The award of damages must be sufficient to ensure that, the damage having spread along the grapevine, a bystander will be convinced of the baselessness of the defamatory statement.[262]

567 In order for an award of damages to reflect the grapevine effect, the court must be satisfied that the grapevine effect originated or sprang from the proven publication by the defendant of the defamatory statement concerning the plaintiff.[263]

568 Aggravated damages may be available when the conduct of the defendant has increased the subjective hurt suffered by the plaintiff or, in an appropriate case, where the conduct has caused an increased injury generally.[264]

569 In order to warrant an award of aggravated damages, the conduct of the defendant - whether in the publication of the defamatory material or subsequently - must be unjustifiable, improper or lacking in bona fides.[265]

570 Aggravated damages are compensatory rather than punitive in nature and can only be awarded to the extent that the defendant's conduct affects the relevant harm sustained by the plaintiff, such as by increasing the plaintiff's hurt or widening the area of publication.[266]

571 Conduct of the defendant from the time of publication to eventual verdict is relevant.[267]

572 A false plea, being a defence raised with reckless indifference to its truth or falsity is a proper circumstance to be considered in assessing damages because it might revive the libel and extend its tendency to cause injury to the plaintiff.[268] Thus the maintenance of a particular defence may give rise to an award of aggravated damages in certain circumstances.[269] However, a bona fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence cannot be used as a ground for increasing damages.[270]

573 An amount sufficiently high to deter the defendant from continuing to defame the plaintiff can be a proper element of aggravated damages.[271]

574 Aggravated damages are not available to companies, as they do not have feelings and cannot suffer distress.[272]

575 The effect of the statutory cap on aggravated damages is discussed at [610] to [615] below.

Factors in mitigation of damages

(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that -

...

(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.

577 The conduct of the plaintiff either prior to the publication of a defamatory statement or in response to a defamatory statement may be relevant to the award of damages.

578 The plaintiff's conduct will be taken into account where he or she has 'provoked' the statement, or perhaps has defamed the defendant in reply.[273]

579 The quantum of damages may also be reduced to account for partial justification of the defamatory statement; the fact that certain imputations were substantially true has been found to detract from the damage done by imputations that were not.[274] While mitigation evidence does not necessarily have to meet the relevant sting in the defamatory statement (as to do so might involve a complete justification), it must be sufficiently relevant to the sting so as to result in, or disclose, a proper basis for some moderation of the damage and consequential damages.[275]

580 The plaintiff's bad reputation can also be a mitigating circumstance. However, evidence of a plaintiff's good or bad reputation is limited to that part of the plaintiff's life that is put in issue by the defamatory publication. Thus, for example, if a libel imputes theft, the relevant sector is the plaintiff's honesty, not his or her character as a motorist. It is for the judge to decide what is the relevant sector.[276]

581 Sub-sections 35(1) and (2) of the Act provide as follows:

Damages for non-economic loss limited

(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.

(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.

582 The current statutory cap for the purposes of s 35(1) of the Act is $355,500.[277]

583 Where there is a single plaintiff, s 35(1) of the Act applies regardless of the number of causes of action pleaded or upheld in a proceeding.[278]

584 In the present case, three questions of construction have arisen in relation to s 35 of the Act.

585 The first question is whether, in a proceeding with multiple plaintiffs, the statutory cap applies to the plaintiffs jointly or severally, that is, whether each plaintiff may be awarded damages up to the cap or whether the damages awarded to all the plaintiffs must not exceed the cap.

586 The second question is whether the cap is a mere 'cut-off' amount which otherwise does not affect the assessment of damages, or whether it requires damages to be assessed on a notional scale, with the amount of the cap reserved for the most serious cases of defamation.

587 The third question is whether, for the purposes of s 35(2) of the Act, there is a distinction between aggravating conduct of the defendant forming part of the circumstances of the publication and conduct in the post-publication period.

Effect of the cap where there are multiple plaintiffs

588 In supplementary written submissions on behalf of the Defamation Plaintiffs, Mr Dibb submitted that there have been a number of proceedings brought by groups of plaintiffs,[279] and that it would be illogical if each plaintiff were required to commence a separate proceeding in order to avoid having their damages severely restricted. Mr Dibb contended that McClellan CJ in Davis v Nationwide News Pty Ltd[280] interpreted the 'cap' as applying irrespective of the number of causes of action but in respect of each plaintiff.

589 Mr Gilbertson submitted that the cap in s 35(1) of the Act applies to the plaintiffs collectively. The context of s 35(1) was said to support a construction that Parliament intended that a single cap would apply.[281] In particular, Mr Gilbertson relied on the language of ss 34 and 35 which refer to the damages that may be awarded in 'defamation proceedings'. It was further submitted that the second reading speech and the explanatory memorandum for the Defamation Bill 2005 support this approach, as they state that the Bill caps damages awarded for non-economic loss in 'defamation actions' and 'proceedings for defamation', respectively. Finally, Mr Gilbertson submitted that s 35(1) ought to be interpreted consistently with s 3(1) of the Supreme Court Act 1986, which defines 'proceeding' as 'any matter in the Court other than a criminal proceeding.'

590 In my opinion, the statutory cap in s 35(1) of the Act applies severally to each plaintiff in a proceeding involving multiple plaintiffs.

591 I accept that a literal reading of the words 'the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is ...' in s 35(1) of the Act indicates that the cap applies to the proceeding as a whole irrespective of the number of plaintiffs in that proceeding ('Literal Interpretation'). However, other provisions of the Act provide a context which displaces the Literal Interpretation. Further, the Literal Interpretation would have absurd and unjust consequences which could not have been intended by the Act.

592 The statutory context includes ss 8, 34, 38 and 39 of the Act. Section 8 provides that '[a] person has a single cause of action for defamation'.[282] Section 34 requires the court to ensure that 'there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.'[283] Section 38 lists five factors in mitigation of damages, four of which refer to 'the plaintiff' and three of them can only apply to each plaintiff individually. Section 39 provides that '[i]f the court in defamation proceedings finds for the plaintiff as to more than one cause of action, the judicial officer may assess damages in a single sum.'[284]

593 These provisions indicate that the assessment of damages must be undertaken by the court for each successful plaintiff separately. Section 39 cannot be given effect where there are multiple plaintiffs because, if a single amount is awarded to all plaintiffs, the parties will not know to what amount each plaintiff is entitled. Further, payment by the defendant to one of the plaintiffs would result in a release of the defendant's obligations under the judgment to all of the plaintiffs. In such a case, no mechanism would be readily available to determine the extent to which the plaintiff receiving the whole amount of the judgment must pay any part to the other plaintiffs.

594 Apart from the practical difficulties set out at [593] above, the Literal Interpretation would create injustice and absurdity and would be contrary to modern litigation practice as reflected in the Civil Procedure Act 2010. That Act directs the court and the parties to conduct litigation in a manner that facilitates 'the just, efficient, timely and cost-effective resolution of the real issues in dis[285]e.'285

595 It is a basic tenet of our legal system that a successful plaintiff is entitled to be awarded damages in such amount as they have been able to establish in accordance with the applicable legal principles. The statutory cap qualifies this basic tenet by requiring such amount to be reduced so that it does not exceed the cap. In a case where a publication defames a defined group of individuals, it is in the interests of those parties as well as the administration of justice that the plaintiffs initiate a single proceeding. In that event, each plaintiff should be awarded the amount of damages to which they are entitled, subject to the statutory cap. If the cap were treated as a joint cap for all plaintiffs, the basic tenet would be further undermined for no apparent reason and without any obvious benefit to the administration of justice.

596 If the cap were to be applied as a joint cap, the inevitable consequence would be that plaintiffs would institute separate proceedings against the same defendant arising out of the same publication. If those proceedings are heard separately, each plaintiff will be entitled to damages up to the statutory cap. The position would be the same if the proceedings remained separate but, for convenience, an order is made that they be heard together. There is no justification in principle for such plaintiffs to be in a better position than plaintiffs who, consistent with modern litigation practice, seek to reduce costs and the strain on scarce judicial resources by instituting a single proceeding in which they are joint plaintiffs. If such joint plaintiffs are in a worse position than plaintiffs who institute separate proceedings, form would triumph over substance and efficiency.

597 The explanatory memorandum and the second reading speech on the Defamation Bill 2005 do not contain any statements that affect the above analysis.

598 For the above reasons, in the present case, the statutory cap applies to the Defamation Plaintiffs severally.

599 In his supplementary written submissions, Mr Dibb accepted that the question of whether s 35 of the Act requires the Court to engage in a scaling exercise has not been settled, as the cap has been held to be a simple maximum,[286] as well as the presumptive outer limit.[287]

600 In Attrill v Christie,[288] Bell J stated that s 35 of the Act fixes the outer limit of damages for non-economic loss - in cases not warranting an award of aggravated damages - and lesser awards must find their place in a range marked out in that way.[289] In doing so, her Honour drew an analogy with awards of non-economic loss in personal injury cases in accordance with s 46A(2) of the Defamation Act 1974 (NSW). However, her Honour also noted that this is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable.[290]

601 Mr Dibb submitted that the language of 'most extreme case' used in the context of personal injury cases is not relevant to defamation proceedings in Victoria, as the Act does not use that phrase. Also, unlike s 46A(2) of the Defamation Act 1974 (NSW), the Act does not mandate any relationship between damages for defamation and damages for personal injury. If Parliament had intended that a scaling exercise be conducted, it would be expected that this would be clearly set out in the Act. Mr Dibb also emphasised that, because the award of damages which may be made in favour of a plaintiff can exceed the statutory cap in circumstances which warrant an award of aggravated damages, the Act does not give any indication of where the 'top of the range' lies.

602 Mr Gilbertson submitted that s 35 of the Act does have a scaling effect, and that it sets the outer limit of damages for non-economic loss, in reliance on the judgment of Bell J in Attrill discussed at [600] above.

603 As there is a conflict in the decisions at the trial level in relation to the scaling issue, without any guidance from an intermediate appellate court, I can decide the issue according to principle.

604 In Victoria, both the Accident Compensation Act 1985 ('1985 Act') and the Wrongs Act 1958 ('1958 Act') impose statutory caps for general damages. Section 134AB(22) of the 1985 Act provides that a court must not, in proceedings in accordance with that section, award to a worker in respect of an injury pecuniary loss damages in excess of $1,275,570. Similarly, the court cannot award damages for pain and suffering in excess of $555,530. Pursuant to s 134AB(23) of the 1985 Act, a jury must not be informed of the statutory maxima specified. Under s 28G of the 1958 Act, the maximum amount of damages that may be awarded to a claimant for non-economic loss is $371,380. These provisions have never been held to impose a scaling requirement. Judges or juries decide the appropriate amount of damages and if that amount exceeds the statutory cap, the amount of the damages is reduced to the amount of the cap.

605 The wording of s 35(1) of the Act is similar to the wording of s 134AB(22) of the 1985 Act and s 28G of the 1958 Act. The wording of these provisions should be contrasted with s 16 of the Civil Liability Act 2002 (NSW). That section provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a 'most extreme case'. The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case. Where the severity of the non-economic loss is equal to or greater than 15% of the most extreme case, damages are to be determined in accordance with the table in s 16(3) of that Act.

606 It is clear from s 16 of the Civil Liability Act 2002 (NSW) that, where a legislature wishes to impose a statutory cap which is intended to have a scaling effect, it is able to use clear and unambiguous language to achieve this result. Section 35(1) of the Act does not use such language. This supports the proposition that the Act does not intend the statutory cap to have a scaling effect.

607 There is nothing in the language of the Act or the extrinsic material to which the Court has been referred that supports the proposition that s 35(1) of the Act is intended to have a scaling effect. Further, there is no reason in principle to interpret s 35(1) in that manner. As discussed at [595] above, the basic tenet to which I have there referred is qualified by the statutory cap. I can see no reason why the basic tenet should be further compromised by awarding to a successful plaintiff damages in an amount that is less than the amount to which they are entitled provided that the cap is not exceeded.

608 The decision in Attrill was influenced by observations made by Hayne J in Rogers[291] in relation to s 46A(2) of the Defamation Act 1974 (NSW). In my opinion, as s 46A(2) of the Defamation Act 1974 (NSW) does not have any counterpart in the Act, the reasoning in Rogers is inapplicable. Accordingly, I decline to follow Attrill.

609 For the above reasons, I will assess the damages to which the Defamation Plaintiffs are entitled on the basis that the statutory cap is a mere cut-off amount.

Effect of the statutory cap on aggravated damages

610 In his written submissions, Mr Dibb contended that the effect of s 35(2) of the Act is to divide aggravating conduct of a defendant into two classes: conduct forming part of the circumstances of publication, which can permit the Court to award damages in excess of the statutory cap; and conduct in the post-publication period, which can justify a Court in awarding damages near the top of the maximum amount prescribed. According to Mr Dibb, where both types of conduct are relevant, the cap does not apply. Mr Dibb submitted that the post-publication period with respect to the Impugned Articles was the time after they were uploaded to the internet.

611 In Forrest v Askew,[292] on which Mr Dibb relied, the Supreme Court of Western Australia rejected the proposition that s 35(2) of the Act precludes a court from considering conduct of a defendant in the period following publication when deciding whether to make an award of aggravated damages. Newnes J stated:

It has long been accepted at common law that in assessing damages the Court or jury (as the case may be) is entitled to look at the whole of the conduct of the defendant 'from the time the libel was published down to the time they give their verdict'.[293]

His Honour concluded that the purpose of s 35(2) is directed simply to the circumstances in which the 'maximum damages amount' may be exceeded; namely where an award of aggravated damages is warranted.[294] Newnes J did not suggest that only conduct of the defendant at the time of publication could give rise to an award of aggravated damages in excess of the statutory cap.

612 Mr Gilbertson did not cavil with Mr Dibb's submission on this issue.

613 I can find nothing in the Act, Forrest or any other authority[295] that supports the proposition that, for the purposes of the statutory cap, aggravating conduct must be divided into conduct which occurs at the time of the publication, and conduct which occurs after publication.

614 There is no reason in the wording of the Act, in policy or principle that would justify such a distinction. Section 35(2) of the Act refers to the circumstances of publication, not to the time of publication, as is the case with s 36. In any event, in the present case, the publication of the Impugned Articles is ongoing rather than one-off (albeit in a materially different form in the case of the Addendum) and therefore the circumstances of publication are not confined to a particular time.

615 As aggravated damages are compensatory damages rather than a separate head of damages, ordinarily they should be included in a single damages award.[296] However, where the taking into account of aggravating circumstances has the effect of increasing the total amount of damages above the statutory cap, it is appropriate to identify what component of the total amount comprises aggravated damages.

Further damaging publications and other adverse conduct by Artists

616 In addition to the Impugned Articles,[297] the Artists produced further material - relating to Mr Cripps, Ruby's, the Gallery, the VCAT Proceeding, this proceeding and Australian defamation law in general - which was also uploaded to the internet.

617 Ms Raymond gave evidence that the Artists created a dedicated website with the address 'www.redlegvartists.com' ('Redleg v Artists Site'). The directory page of the website includes a photograph of Mr Cripps' face with a 'cancel' sign superimposed over it.[298] The website contains references to Ruby's, including the statement: '[Mr Cripps'] application to run his dog's venue, "Ruby's Music Room", has been beset by legal challenges'; and a link to a petition to change defamation law in Australia. Ms Raymond agreed that the material relating to Ruby's had nothing to do with this proceeding. The Redleg v Artists Site contains several webpages consisting of articles relating to the Artists' disputes with Mr Cripps.

618 A webpage on the Redleg v Artists Site has the address http://www.redlegvartists.com/cripps-lies.html. Ms Raymond gave evidence that this webpage was largely composed by Mr Vakras and that a good deal of the page relates to Mr Cripps being a 'liar' and sets out what the Artists consider to be 'the facts'. It includes a photograph of Ms Raymond in discussion with Mr Cripps at the Gallery, which was taken on 24 June 2009. The photograph is captioned:

Lee-Anne Raymond is protesting to Cripps about his bizarre conduct during our exhibition at his failed Guildford Lane Gallery. Cripps is being told that his conduct had been, and had continued to be, unacceptable. For the purposes of suing us to make a profit from his unprofessional conduct, Cripps has lied about this encounter.

619 At [182(e)] above, I held that the photograph described at [618] above depicted Mr Cripps and Ms Raymond having a civilised discussion. Accordingly, the Artists' description of the photograph is incorrect.

620 The text of the 'Cripps-Lies' article engages critically with Court documents prepared on behalf of Mr Cripps and served on the Artists. It is also highly critical of Australian defamation law and the legal industry. An example of a critical statement is:

Australian law is concerned about the damage to Cripps for being exposed to be a liar because it considers his lie (reputation) to be of greater importance than the damage he did to us.

621 One of the webpages on the Redleg v Artists Site was written by Mr Vakras and has the subtitle '2 March 2014 Cripps pulled his Ruby's Music Room sites'. It contains several screenshots of websites and social media pages attributed to Ruby's and which appear to be inoperative. Some of the screenshots are accompanied by comments by Mr Vakras. The comments include:

A genuine 404 code is a server response when it does not find the page. In this instance the server has found the page, but that page itself claims to be a '404' error when it is not. What is the purpose of this deception?

For reasons that elude us, Cripps restarted his [Gallery] Twitter feed about a week before pulling his Ruby's Music Room sites. The [Gallery] twitter feed only had one entry in 2 ½ years ... Is this intended for the purpose of making an obscure claim against us?

622 Another of the webpages is titled 'Cripps would never ask "is that your lovely penis?"'. It was written by Ms Raymond and contains the photograph with the 'cancel' sign. The webpage also refers to the 'lovely bottom' incident[299] and makes a number of comments, including:

Cripps can apparently identify females by looking at their 'bottom'.

Though entirely inappropriate, he is suing me for defamation over what he has admitted to having had happened.

Would Cripps seek to identify another male by asking them if it is their lovely penis?

623 A further webpage on the Redleg v Artists Site is subtitled 'The Hideous Robert Cripps: Beauty in the eye of the beholder? Australian defamation law says: sue the beholder'. That webpage was written by Mr Vakras. It contains the photograph with the 'cancel' sign and makes a number of comments, including:

The hideous Robert Cripps is suing us to alter our opinion of him because it conflicts with the opinion he holds of himself.

By suing, Cripps has made it incumbent on us to prove how awful he is ... CRIPPS WILL LOSE HIS CASE, we can demonstrate truth.

624 The webpage also includes three screenshots said to be of the desktop of the Artists' computer, which are prefaced with text including the following:

We have had to embark on a massive data-harvesting venture in order to find out who Cripps associates with, what views Cripps shares with his associates etc. The reasons for doing this are many. In some instances it is in order to show whom it was that he conspired with to commit his fraud against us (by means of his deceptions that led us to exhibit at his gallery), show who it was that conspired with him to keep their witness evidence from being available to us.

More importantly, find out who, out of those who exhibited at his gallery, or worked at his gallery, shared his opinions, opinions that he has come to deny having. It's going to be interesting. ...

There are 180 Cripps-Crap folders & files on the 'desktop' of our computer, as [at] December 2013.

625 Ms Raymond gave evidence that the Artists produced an article titled 'Artists' exhibition critical of religion declared racist by gallery owner are then sued for writing about it', which was uploaded to the website http://art-leaks.org. The article states that Mr Cripps 'has victimized many over many years.' It also states: 'If [Mr Cripps] admitted to calling us racist, we would be rich by now which is why he has been advised to deny doing so.'

626 Ms Raymond wrote an essay dated 8 October 2011 titled 'The "SLAPP"' which she uploaded to her personal blog. She stated that 'SLAPP' stands for 'strategic litigation against public participation'. The article states that Mr Cripps has 'finances and legal connections' and his 'strategy is to defeat [the Artists] by removing [their] ability to defend [their] position legally.'

627 Mr Vakras gave evidence that the Artists have been following what is happening at Ruby's 'lest any claims be added against them' and that they are 'wary and watchful.' He added that because Mr Cripps has sued him, he has to 'keep abreast of what [Mr Cripps is] doing'.

628 Some of the items referred to at [617] to [626] above contain comments posted by readers of those items. The comments are supportive of the Artists' grievances against Mr Cripps (as represented by the Artists) and some are highly critical of Mr Cripps.

629 The following oral evidence from independent witnesses is relevant to the grapevine effect:

(a) Ms Curro said that a member of the Melbourne Symphony Orchestra sent the First Vakras Article or the Second Vakras Article to her; and

(b) Ms Paul said that the First Vakras Article was discussed with friends of Mr Cripps and also some of her friends who Googled Mr Cripps' name or the name of the Gallery.

630 Mr Cripps first became aware of, and read, the First Vakras Article a couple of months after the Exhibition, when Colin Reid, a volunteer at the Gallery sent information about that article to the Gallery, asking 'Have you guys seen this?' Mr Cripps said that the volunteers at the Gallery were talking about the First Vakras Article and crying, and Gallery staff members were 'really upset'. As soon as the Vakras Articles were online the volunteer numbers dropped off straight away. The Gallery had 'virtually ... no volunteers ... after that time'.

631 Mr Cripps gave evidence that '[a]ll of the gallery staff talked about it all the time' and that his 'friends talked about it to [him]'. He said that a number of people had told him that there 'must be some truth in the articles'.

632 The Impugned Articles also provide evidence of the grapevine effect, namely, the email from Ms Kim on 10 May 2010[300] which prompted the Addendum and the communications from exhibitors which prompted the updates to the Raymond Article dated 26 May 2010, 6 June 2010 and 26 September 2010.

633 The Impugned Articles are very conspicuous because of their florid language and the vehemence of their attack on Mr Cripps' character. They have been available on the internet since they were first uploaded in 2009, although the Addendum was materially altered 36 hours after it was uploaded.[301] As the Artists are well aware, the Impugned Articles are searchable via Google and Bing.[302] The Artists deliberately sought to provide as much exposure as possible for the Impugned Articles.[303]

634 From the above facts, I am able to infer that there has been a considerable grapevine effect since 1 April 2010.

635 The above inference is supported by events relating to the application for a liquor licence by Redleg in relation to Ruby's. As discussed at [88] above, in early 2013 Mr Cripps commenced business at Ruby's. Prior to that time, he applied for a liquor licence for that venue. Bennetts Lane Jazz Club, a nearby jazz venue operated by Michael and Sandy Tortoni, lodged an objection to the application. On 18 April 2012, Ms Tortoni sent an email to a liquor licensing official which relevantly stated:

I would like to resubmit my objection to granting a liquor [licence] to Mr Cripps, at 132 Little Lonsdale Street Melbourne. Apart from the reasons explained to you in my previous objection emailed on the 19/01/12 I would also like to draw your attention to a legal action Mr Cripps is involved in with clients of his former business, which he recently closed. This legal action is important in order for your department to assess whether Mr Cripps is a 'fit and proper person' to hold a liquor [licence]. For ease of reference I attach a link for details of this legal action which is in the public domain.

http://www.vakras.com/guildford\_lane\_gallery.html

Also please look at the VCAT hearing:

http://www.humanistranshumanist.com/vakras-raymond-VCAT-claim.html

I draw no conclusions, however his previous behaviour with his own clients as this legal action shows, should be taken into account as your own guidelines require that a person will be deemed a fit and proper person provided that person:

'is of good repute and does not have a history of behaviour that would render the person unsuitable to hold a licence' and

'can demonstrate a responsible attitude to the management and discharge of their financial obligations'(Mr Cripps allegedly did not pay his clients at Guildford Lane Gallery (Vakras and Raymond v Cripps VCAT Reference: C5251/2011).

636 On 15 March 2014 an unknown person sent an email titled 'The Ugly Truth about Robert Cripps & why you shouldn't support Ruby's Music Room' to the email addresses included on the Ruby's mailing list. The email includes some of the text from the Redleg v Artists Site. Ms Raymond agreed that the text was written by one or both of the Artists. Ms Paul was a recipient of the email. The Artists denied any involvement in or knowledge of the sending of the email and there is no basis for that evidence to be rejected. It is not possible to make any finding about the identity of the person who sent the email. As the email and its contents cannot be attributed to the Artists, I have not taken them into account for any purpose.

Mitigation: Defamation Plaintiffs' pre-existing reputation

637 The Artists have relied on the following by way of existing bad reputation in mitigation of damages:

At the time of the publication of the [Impugned Articles]:

(i) [Mr Cripps] has or had a general, bad reputation for:

(A) acting in a disgraceful manner towards artists or exhibitors who exhibited works at his gallery;

(B) acting in a bullying manner towards artists or exhibitors who exhibited works at his gallery;

(C) intimidating artists or exhibitors who exhibited works at his gallery;

(D) making sexually inappropriate comments to female staff or volunteers who worked at the gallery;

(E) humiliating artists who exhibited works at the gallery; and/or

(F) embarrassing artists who exhibited works at the gallery.

(ii) As an art transportation company [Redleg] has or had a general, bad reputation as a company that artists and galleries should not deal with and should avoid.

638 Mr Gilbertson submitted that the part of Mr Cripps' life that is put in issue by the Impugned Articles is his conduct as the owner and operator of the Gallery and that the relevant sphere of Redleg's operations is that of an arts transportation company. He contended that the evidence established that both Mr Cripps and Redleg had general, bad reputations.

639 Ms Ruth Leveson gave the following evidence. In the late 1990s she held the position of Registrar of Museum Victoria with respect to technology, science and history. In 1997, Ms Leveson attended a meeting of the Australian Registrars Committee. During a break in the meeting, the President of the Committee, who was the Registrar at the National Gallery of Australia, spoke to Ms Leveson privately, and said: 'that on no account should [Ms Leveson] deal with Mr Cripps or Redleg in [her] professional work, that he had a reputation for being extremely difficult to work with'. At the time of that meeting, Museum Victoria was about to relocate its collections, although Ms Leveson was not personally involved in that relocation.

640 Ms Josie Waddelton gave evidence that prior to her exhibition at the Gallery in around August 2010 she was told by Dr Paul Carter: 'Don't go there it's hopeless.' Ms Waddelton had heard from other people in her studio that Mr Cripps was 'quite sleazy'.

641 Ms Emily Biggs-Kocaj gave evidence that she had worked at the Gallery from September 2009 until February 2010. Prior to commencing work at the Gallery she had had some exposure to the arts world, and was not aware of any bad reputation of either Mr Cripps or the Gallery. She has since spoken to between 10-15 people who knew Mr Cripps, including artists, former staff and volunteers at the Gallery and others who were involved with the arts in their professional capacities. Ms Biggs-Kocaj mentioned to some colleagues that she had once worked at the Gallery and said they 'had a reaction in terms of bad reputation of that particular gallery or the art transport services ... Redleg.'

642 With regard to Mr Cripps' reputation for treatment of artists and exhibitors at the Gallery in early 2010, Ms Biggs-Kocaj said that a percentage of artists who had had interaction with Mr Cripps would comment that they were not treated with respect in terms of the work that they were exhibiting. Some of them experienced 'bullying behaviours' in terms of the presentation of the works. Ms Biggs-Kocaj said:

Other artists commented that they felt uncomfortable with Mr Cripps' conduct in a sexual nature towards them. Just in general, you know, the people were unimpressed by the service that they received for the moneys that they paid in terms of the gallery hire. ... [D]epending on the person, you know, that was communicating it would have been anything from slightly inappropriate sexualised behaviour to extremely offensive behaviour in terms of comments about women's appearances, about their private activities. I mean, I know that particular people were very, very offended by those sort of comments.

643 Ms Biggs-Kocaj's evidence about Mr Cripps' interaction with Ms Li and Ms Bui and my findings on that evidence are set out at [196] to [203] above.

644 Mr Albert Mishriki gave evidence that prior to his exhibition in January 2009, there had been 'warnings' about Mr Cripps from others involved in sound art. There was general talk that Mr Cripps had a bad reputation, and Mr Mishriki's co-exhibitor Ms Douglas told him: 'There's word about town this guy's a bit of an arsehole.' Another artist, Rod Cooper, told him not to have dealings with Mr Cripps.

645 Ms Sarah Curro gave evidence that since December 2009, she may have had conversations with other musicians about Mr Cripps, to the effect that he has 'a great venue' and runs Ruby's. In around July 2013, a friend of Ms Curro's from the Melbourne Symphony Orchestra sent her either the First Vakras Article or the Second Vakras Article and asked her if she 'knew that the person [she] was dealing with had this terrible thing going on'. Apart from the contents of that article, nobody had suggested to Ms Curro that Mr Cripps had a bad reputation; a reputation for not treating artists with respect; for bullying artists; providing artists with unimpressive services; or engaging in inappropriate sexualised behaviour with staff or volunteers. She said that she does not know many artists, as the fine arts world and the music world are quite separate.

646 Mr Nicholas Murray gave evidence that he first heard of Mr Cripps and the Gallery during his PhD studies at RMIT in mid 2008 or 2009. In general terms he had heard that Mr Cripps was 'prickly' but had not heard anything that gave him any particular concerns. He had not heard anything about bullying, racism or sexual harassment. I reject Mr Gilbertson's submission that Mr Murray's evidence is consistent with Mr Cripps having a bad reputation in the relevant sense.

647 Ms Elizabeth Paul gave evidence that when she first met Mr Cripps in November 2009 he had a very good reputation. She had not heard anything about him being a bully, sexually harassing his staff or being a racist. I have interpreted Ms Paul's evidence of good reputation as encompassing all facets of Mr Cripps' personal and professional life, including as the owner and operator of the Gallery.

648 Ms Danuta Czarski gave evidence that, before meeting Mr Cripps, she had not heard of him or Redleg, but she had heard of the Gallery through friends who were artists and familiar with galleries in Melbourne. She said that the Gallery had a reputation for being an amazing space for exhibitions and for providing an opportunity for many artists to exhibit. Its reputation was 'stellar'.

649 Dr Matthew Piscioneri gave the following evidence. He has known Mr Cripps for around 20 years and met him when he was working for a Sydney-based company called Touring Exhibitions Design ('TED'). That company performed arts packing services and some arts transport services and was a competitor of Redleg. Mr Cripps' reputation at TED was that of an outsider, as he was from Melbourne. There was commercial rivalry and some personal rivalry between TED employees and Mr Cripps. Mr Cripps was 'strongly ... put down.' At the time, there were few companies involved in the arts transport business that would perform interstate work and had networks of regional galleries. Redleg and another Sydney-based company called Woollahra Art Transport were the two leading companies in that industry. Dr Piscioneri described the Sydney scene as 'a bit of a closed shop'.

650 Dr Piscioneri's knowledge of Redleg was informed by what he had heard from leading people in the industry, including the directors at TED and Woollahra Art Transport, who had 'castigated' Mr Cripps. Mr Libo Maroun, the chief registrar at the Art Gallery of New South Wales, said that Mr Cripps was 'someone who caused trouble ... the troublemaker'. There was a 'very negative perception' of Mr Cripps in the Sydney industry. Dr Piscioneri said that: 'given the egos that operate in that industry I thought that possibly [Mr Cripps] might have even been doing something right'. The reputation of Mr Cripps which he was familiar with was limited to Mr Cripps' reputation in Sydney.

651 Dr Piscioneri disagreed with the proposition that Mr Cripps was 'universally despised' in the arts transportation industry. Mr Cripps was able to sustain a viable business during that time, and Dr Piscioneri later worked for him for 12 to 18 months and became a friend.

652 Mr Stephen Sedergreen gave evidence that before meeting Mr Cripps in 2008 he knew of the Gallery as a very well-known gallery and a 'great place for supporting artists and musicians.' He had not heard that Mr Cripps was a bully, a racist, anti-Semitic or that he sexually harassed his staff.

653 The evidence set out at [639] to [652] above may be summarised as follows: Of the 10 independent witnesses who gave evidence about the Defamation Plaintiffs' reputation, four witnesses (Ms Leveson, Ms Waddelton, Ms Biggs-Kocaj and Mr Mishriki) gave evidence that was adverse to Mr Cripps' reputation, two witnesses (Ms Leveson and Ms Biggs-Kocaj) gave evidence that was adverse to Redleg's reputation; four witnesses (Ms Curro, Ms Paul, Ms Czarski and Mr Sedergreen) gave evidence that was expressly or implicitly favourable to Mr Cripps' reputation and two witnesses (Ms Czarski and Mr Sedergreen) gave evidence that was favourable to Redleg's reputation. The evidence of Mr Murray and Dr Piscioneri was neutral. Mr Murray said that Mr Cripps' reputation was that he was 'prickly' but that there was not anything that gave him concern. Dr Piscioneri's evidence was to the effect that, while detracting comments were made about the Defamation Plaintiffs by their Sydney competitors, the comments were motivated by professional rivalry, that he did not believe them, and that he became Mr Cripps' employee and friend.

654 I have not given much weight to Ms Leveson's evidence because it related to 1997, 12 years prior to the publication of the Impugned Articles. I have also not given much weight to the evidence of Ms Biggs-Kocaj for the reasons set out at [102] above.

655 The evidence of the Artists was to the effect that: they have been part-time artists for a long period; they have collaborated with other artists; they have exhibited their works previously; they visit galleries from time to time; and they generally mix in artistic circles. Before submitting their Exhibition Proposal in August 2008, they had visited the Gallery and were impressed by it. There was no evidence that they became aware of any information that suggested that either of the Defamation Plaintiffs had a bad reputation prior to June 2009. The Artists gave evidence that, on 20 June 2009, Steven Armstrong from the art supplies shop Art Stretchers asked them how they were 'handling' Mr Cripps. He told them that Mr Cripps was 'universally despised'. Ms Raymond said that Mr Armstrong told them that many artists over the years had experienced issues with Mr Cripps. Mr Vakras gave evidence that Mr Armstrong said that Mr Cripps yelled at people. Mr Vakras also gave evidence that a woman named Anika Coote was also present and that she said that Mr Cripps was 'a dickhead' and that he berated an artist.

656 The Impugned Articles themselves suggest that the Artists did not become aware of any adverse experiences at the Gallery by other artists until mid-2010. This is because Ms Raymond first updated the Raymond Article on 26 May 2010 to include feedback from an artist. Further, in the Addendum, Mr Vakras states that he received Ms Kim's email '[a] year after [the Exhibition]'. In evidence, Mr Vakras said that he received the email on 10 May 2010.

657 Prior to the uploading of the First Vakras Article on Mr Vakras' website on 21 August 2009, only Ms Leveson and Mr Mishriki had been exposed to adverse information about the Defamation Plaintiffs, whereas Ms Czarski and Mr Sedergreen had not been exposed to such information.

658 In all the circumstances, I am not satisfied that the Defamation Plaintiffs had a bad reputation in any relevant sense prior to the uploading of the First Vakras Article on Mr Vakras' website.

659 In the period since 21 August 2009, the Defamation Plaintiffs continued, in the main, to have a good reputation. There were, however, some unfavourable aspects of their reputation. In relation to Mr Cripps, there were concerns that he did not always treat artists with respect, that he sometimes engaged in bullying behaviour, that he sometimes made comments which humiliated and embarrassed artists and that he was sometimes difficult to work with. These concerns also had an impact on Redleg's reputation.

660 However, there was no credible evidence that Mr Cripps had a bad reputation in the following areas:

(a) that he was a racist who held views similar to those of Adolf Hitler;

(b) that he intimidated artists in order to silence them;

(c) that he has sexually harassed volunteers and staff at the Gallery;

(d) that he destroyed or sabotaged the exhibitions of artists who exhibited their works at the Gallery;

(e) that he sullied the reputations of artists who exhibited their works at the Gallery;

(f) that, in his arts transportation business, he was universally despised;

(h) that he was not a fit and proper person to be a gallerist.

661 Likewise, there was no credible evidence that Redleg had a bad reputation in the following areas:

(b) that its reputation was so bad that artists should avoid it.

662 In their defences, the Artists rely on provocation in mitigation of damages. They allege that the Defamation Plaintiffs, or one or other of them, provoked the publication of the Impugned Articles by their conduct. Mr Vakras relied on the conduct set out at [319] above. Ms Raymond relied on the following conduct: the alleged berating of Ms Raymond on 5 June 2009; the alleged statements and conduct of Mr Cripps at the meetings on 18 and 24 June 2009; and the Disclaimer.

663 I reject the Artists' claim that any of the Impugned Articles were 'provoked' by any statement or conduct of the Defamation Plaintiffs or by the Disclaimer, for the following reasons. First, I have largely rejected the Artists' version of the events upon which they rely. In particular, I have concluded: that Mr Cripps did not berate Ms Raymond on 5 June 2009;[304] that the only breach of the Hiring Agreement committed by Redleg was the late payment of the Bond and the Sale Proceeds;[305] that Mr Cripps' conduct on 18[306] and 24[307] June 2009 and his email of 26 June 2009[308] were not unreasonable; and that the Disclaimer was legally unobjectionable.[309]

664 Secondly, on the basis of my factual findings on the matters upon which the Artists have relied, there was nothing in those matters, either individually or collectively, which could remotely constitute provocation in the relevant sense.

665 Finally, even if there had been an element of provocation in the relevant sense, the Impugned Articles constitute a wholly disproportionate and wholly unreasonable response to any such provocation.

666 In the circumstances the issue of provocation is not relevant to the assessment of damages.

667 The damages to which Mr Cripps is entitled against Mr Vakras in respect of the Vakras Articles are confined to damages for the imputations that I have found are defamatory and to which no defence applies. For convenience, those imputations are set out below:

Mr Cripps is a disgraceful individual who is to be avoided assiduously.

Mr Cripps engaged in conduct which inhibited the Artists' capacity to promote the Exhibition, causing it to fail, but Mr Cripps still made a profit from the Exhibition.

Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler.

Mr Cripps' pattern of intimidating behaviour has left other artists reticent to describe publicly their own negative experiences with him.

Mr Cripps has sexually harassed volunteers and staff at the Gallery and, unless he is stopped, he will continue to do so.

668 I will refer to the above imputations as the 'Actionable Vakras Imputations'.

669 Based on my observation of Mr Cripps in the witness box, I readily concluded that the Actionable Vakras Imputations - particularly the Hitler Imputation - have so destabilised him emotionally that he finds it difficult to confront, less still express, his own feelings about them. This resulted in a tendency to answer questions about his feelings in a brief and understated manner.

670 Mr Cripps gave evidence that, when he read the First Vakras Article, he was 'really, really upset' and had 'great concern'. He said that he finds the article 'disturbing', that it 'gave [him] nightmares' and that he could see his 'life being ruined' by it. Mr Cripps said that the text 'Can you trust Redleg?' caused him concern because he was 'the most innovative and constructive art transporter in Australia'. He said that he 'had a fine reputation.'

671 In relation to the Second Vakras Article, Mr Cripps said that, when he read it, he was 'really concerned'.

672 On more than one occasion Mr Cripps said that he could not bear to look at the Impugned Articles and documents relating to the Defamation Proceeding. For example, when Mr Dibb took him to some email exchanges with the Artists, he said 'I rarely look at this stuff. It's too disturbing for me.' When he was asked whether he was aware whether there had been any changes to Mr Vakras' website, he said 'I really have little to do with it. I can't bear it. I can't bear to look at the stuff.' However, such was his concern about the Impugned Articles that he asked friends such as Ms Paul and Ms Czarski to look at them for him. Mr Cripps also said: 'I just want [the dispute with the Artists] to be over' and 'I just want to get out of here.'

673 Ms Czarski gave evidence that Mr Cripps spoke to her about Mr Vakras' website 'and how ... damaging it is to ... his name.'

674 I have no hesitation in concluding that the Vakras Articles caused Mr Cripps profound distress, embarrassment, humiliation and hurt. Mr Cripps' emotional state was plain to see in the witness box. At the outset of his evidence in chief, he began to sob uncontrollably and an adjournment became necessary to provide him with an opportunity to compose himself.

675 I reject Mr Gilbertson's submission that Mr Cripps' evidence about his hurt feelings was 'moderate' and 'towards the middle' of the 'scale of hurt feelings'. I also reject Mr Gilbertson's submission that, when giving evidence about the effect of the Vakras Articles on him, Mr Cripps was measured and controlled, in contrast to his evidence about the effect on him of his service in the Vietnam War. Mr Cripps' demeanour was as I have described it at [93] above. The emotional impact of the Vakras Articles upon Mr Cripps has been very severe and enduring. Although the catalyst for Mr Cripps' breakdown in the witness box was a question about Vietnam, the underlying cause was the emotional stress caused by the Impugned Articles and their continuing presence on the internet.

676 For the reasons set out at [307] to [314] above, by far the most serious of the Actionable Vakras Imputations is the Hitler Imputation.

677 At [230] above, I concluded that Mr Cripps is not a racist or an anti-Semite; that he never expressly or impliedly stated that he is a racist or an anti-Semite; and that his criticism of the policies of the State of Israel in Palestine was not equivalent to hating Jewish people. I have also concluded that Mr Cripps did not express racist or anti-Semitic views on either 18 or 24 June 2009. He has Jewish friends and Jewish clients. Mr Cripps has been traumatised by his tour of duty in Vietnam and does not condone violence. In these circumstances, Mr Vakras' accusation that Mr Cripps is a racist who has similar views to those of Hitler - particularly Hitler's views relating to the extermination of Jews - caused Mr Cripps deep-seated anguish. His distress was so profound that he is left unable to deal with it or even to properly articulate it.

678 As I have stated at [228] above, when Mr Cripps was questioned about racism and anti-Semitism, he said that he is not a racist, and the allegation that he is a racist 'really hurt'. He said that he has never been racist in anything that he does, and this caused him particular concern: 'It's just so inappropriate. I build things, I don't tear things down.' Mr Cripps said that he does not 'hate Jews', stating:

Most of my customers in Redleg were Jewish people, the good majority of my customers. A great deal of the musicians I currently work with have a Jewish background. I have really good relationships with people of all nationalities.

679 Mr Cripps gave the following evidence about his reaction when he read the racism allegations and the references to Hitler in the First Vakras Article:

I was shocked. I've been an infantry soldier, I've been an honourable soldier, and then someone goes and calls me that. I just find it appalling ... I could say it a lot more clearly but it's not appropriate.

680 In cross-examination, Mr Cripps added that he was 'pretty distressed.'

681 The cumulative effect of the Disgraceful Imputation, the Profit Imputation, the Bully Imputation and the Intimidating Imputation was to portray Mr Cripps as a disgraceful bellicose bully who intimidated artists, undermined their exhibitions and whom people should go out of their way to avoid. However, while Mr Cripps' interaction with some exhibitors was not smooth, I have found that he was well liked by most exhibitors and performers.[310] He was very proud of the Gallery, supported exhibitors and valued his relationships with them and people generally. Against this background, it is not surprising that the abovementioned imputations have caused Mr Cripps immense concern and dented his self-esteem.

682 The evidence of Ms Li and Mr Cripps demonstrated that he had a caring, informal and supportive relationship with staff and volunteers and had not engaged in any improper sexual conduct.[311] In the light of this, the Harassment Imputation deeply hurt Mr Cripps. This was obvious when he gave evidence denying the harassment allegation.

683 Although Mr Cripps did not expressly say so, I formed a clear impression that he is a proud individual who values his relationships with artists, women and people generally, and that the Actionable Vakras Imputations deeply embarrassed him and hurt his pride. For example, he stated:

I'm very straight forward. I'm very honest. I'm professional and I work in areas that are totally unique and ground breaking ... I think women are wonderful. I'm very flirtatious. I'm very respectful and I have a large circle of strong supportive professional women friends.

684 In my opinion, had it not been for the fact that the parts of the Second Vakras Article which contained the Harassment Imputation were removed within 36 hours,[312] a substantial amount of damages would have been warranted by way of consolation for Mr Cripps' personal distress and hurt. The fact that the published material which carried the Harassment Imputation was short-lived requires that the amount of damages that would otherwise have been awarded to be significantly moderated.[313]

685 Mr Cripps has been affected by the Vakras Articles particularly severely because his Vietnam War experience had made him vulnerable and sensitive. In evidence in chief, he said 'I'm just reliving [the Vietnam War experience] with all this crap at the moment. I deserve better than this.' When he was asked whether he had gone back to the First Vakras Article after he first read it, he said:

My Vietnam experience means that I've got to be very careful with what I load myself up with. I control my emotional well being by believing in myself and I found the article and the stuff they put online started to question my whole being. I've never [hurt] anyone.

686 A person who had not had Mr Cripps' Vietnam War experience may possibly have been less traumatised than he was. However, Mr Vakras must take Mr Cripps as he finds him.[314]

687 I find that the profound distress and hurt that the Actionable Vakras Imputations have caused Mr Cripps have continued unabated to the present day. Such a grave and enduring impact requires a significant amount of damages by way of consolation.

688 In relation to the harm to Mr Cripps' personal and professional reputation that was caused by the Actionable Vakras Imputations, Mr Gilbertson submitted that any such harm was insignificant. In support of that contention, Mr Gilbertson tendered a set of interrogatories and the answers provided by Mr Cripps. To all of the interrogatories, Mr Cripps answered simply 'No'. The interrogatories were aimed at revealing whether any person had advised Mr Cripps that, as a result of reading the Vakras Articles, they had formed a particular belief. The beliefs in question reflected the imputations relied on by Mr Cripps and were as follows:

Has anyone advised you that as a result of reading the First Vakras Article they believed that:

(a) you are a disgraceful individual who is to be avoided assiduously;

(b) you used economic duress to force the [Artists] to agree to terms that were not in the original contract for rental of space at the Gallery;

(c) you, having made a profit from the [Artists'] art exhibition at the Gallery, then deliberately inhibited the [Artists'] capacity to promote the exhibition, causing the exhibition to fail;

(d) you are a dangerous racist who has embraced the discredited views of National Socialism?

Has anyone advised you that as a result of reading the Second Vakras Article they believed that your pattern of intimidating behaviour has left other artists too fearful to describe to the public their own negative experiences with you?

689 It was put to Mr Cripps in cross-examination that no one had said to him that as a result of reading the First Vakras Article they believed that he is a disgraceful individual who is to be avoided assiduously. Mr Cripps responded that this 'was said by one of the volunteers as she departed the gallery' and that that this occurred 'a month or so' after he read the material online. He added that 'Bree Trewin was the person that actually said to [him] she thought less of [him].' Mr Cripps accepted that the answer he had sworn was wrong. He could not say whether any of his other answers were also incorrect. When taken to his answers to questions (b), (c) and (d) at [688] above, Mr Cripps stated that his sworn answers were correct.

690 Mr Cripps gave evidence that '[a]ll of the gallery staff talked about it all the time' and that his 'friends talked about it to [him]'. Mr Cripps stated that: 'As soon as the Vakras articles were online the volunteer numbers dropped off straight away. We virtually had no volunteers ... after that time.'

691 In cross-examination, Mr Cripps said that he had lost business because of the Impugned Articles and that a number of people told him that 'there must be some truth in the articles.'

692 In my opinion Mr Cripps' answers to the interrogatories and the evidence he gave about peoples' reactions to the Vakras Articles do not support Mr Gilbertson's submissions that the damage to Mr Cripps' reputation has been insignificant.

693 At [262] and [645] above, I set out the evidence of Ms Sarah Curro and Ms Elizabeth Paul about discussions among artists concerning Mr Cripps.

694 Ms Curro also gave evidence that when she became aware of the Impugned Articles she questioned her relationship with Mr Cripps, as he did not have a good relationship with the Artists. She said 'It just made me put a few doubts in my mind until those doubts were laid to rest.'

695 Mr Stephen Sedergreen gave evidence that while the Impugned Articles were 'too far fetched for [him] to even go there', Mr Cripps' 'reputation has been affected by those allegations' because there is now a cloud over his head.

696 It may be accepted that individuals who knew Mr Cripps well generally did not believe the Actionable Vakras Imputations when they read the Vakras Articles. This is because they would have readily recognised the falsity of those imputations. What is not known is how many people read the Vakras Articles and believed the Actionable Vakras Imputations. In this regard, the reaction of the volunteers is very telling: existing and prospective volunteers abandoned the Gallery almost immediately. There were virtually no volunteers until the Gallery closed in late 2011 or early 2012. Further, Ms Tortoni evidently formed the view that the First Vakras Article raised sufficient doubts about Mr Cripps' reputation to warrant referring it to the liquor licensing authorities.[315]

697 In my opinion, the Actionable Vakras Imputations are so vile[316] that they necessarily caused immense damage to Mr Cripps' reputation. That damage has been compounded by the fact that they have remained on the internet since the Vakras Articles were uploaded, save for brief interruptions.[317]

698 For the reasons set out at [307] to [314] above, the Hitler Imputation has caused immense damage to Mr Cripps' personal and professional reputation. Due to the ferocity and wide-ranging attack on Mr Cripps for being a racist and sharing the racist views of Hitler in the First Vakras Article, I have no hesitation in concluding that those reading it who did not know Mr Cripps well would have instantly concluded that he was an odious individual. Accordingly, I find that Mr Cripps' reputation and standing have been grievously injured by the Hitler Imputation.

699 The Harassment Imputation is very serious. As with the Hitler Imputation, it is inevitable that some of the people who read the First Vakras Article believed that Mr Cripps abused his position of authority to regularly sexually harass his staff and volunteers. For the reasons set out at [462] above, this caused grave damage to Mr Cripps' personal and professional reputation, which was only ameliorated by the removal of the text giving rise to the imputation with[318]36 hours.318

700 The Disgraceful Imputation, the Profit Imputation, the Intimidating Imputation and, in particular, the Bully Imputation, also seriously damaged Mr Cripps' personal and professional reputation.[319]

701 For the above reasons, the need to provide reparation for the harm caused to Mr Cripps' personal and professional reputation by the Actionable Vakras Imputations requires a significant award of damages.

702 The ferocious and wide-ranging attack by Mr Vakras on Mr Cripps' reputation by the Actionable Vakras Imputations requires substantial damages for the vindication of Mr Cripps' personal and professional reputation. A disagreement between Mr Cripps and the Artists about Mr Vakras' essays in June 2009 unleashed a sustained, wholesale attack by Mr Vakras on Mr Cripps' character. Mr Cripps has endured this relentless undermining of his character for over four years. The need for vindication is self-evident.

703 The principles set out at [561] above are particularly apt in the present case where, despite requests to remove the Vakras Articles, Mr Vakras has maintained them on his website to the present day. In the Addendum, Mr Vakras expressly refers to his refusal to comply with a request from Mr Cripps' solicitor to remove the First Vakras Article because he believes that it is true. There are no indications that Mr Vakras is prepared to desist from continuing to make the Vakras Articles available. These circumstances add to the need for the amount of damages to be substantial in order to vindicate Mr Cripps'[320]putation.320

704 In assessing the damages to be awarded to Mr Cripps, I have taken into account the grapevine effect discussed at [629] to [635] above to the extent that it relates to the Vakras Articles. I have also taken into account, by way of reduction of damages, my conclusion at [659] above about adverse aspects of Mr Cripps' prior reputation and my discussion of each of the Actionable Vakras Imputations which indicated that there were som[321]lements of truth in some of them.321

705 All in all, the Actionable Vakras Imputations are egregious and grievous examples of their type.[322] If, contrary to my conclusion at [607] above, the statutory cap has a scaling effect, I would have placed the Actionable Vakras Imputations towards the upper end of the scale.

706 Having regard to all of the factors discussed above, I assess the damages payable by Mr Vakras to Mr Cripps in the amount of $250,000 for the combined effect of all the Actionable Vakras Imputations. This amount does not take into account any hurt to Mr Cripps' feelings or any damage to his reputation attributable to the period prior to 1 April 2010.

707 In his pleadings, Mr Cripps relied on seven matters in support of his claim for aggravated damages against Mr Vakras. He stated that, by reason of those matters, the circumstances of the publication of the Vakras Articles, and the conduct of Mr Vakras since the publication of the articles, have increased the hurt, distress, embarrassment and humiliation he has suffered and warrant an award of aggravated damages.

708 The first of the seven matters is that Mr Vakras did not at any time prior to the publication of the First Vakras Article make any, or any reasonable, attempt to ascertain the Defamation Plaintiffs' side of the story, and the First Vakras Article makes no attempt to set up their side of the story. In his defence, Mr Vakras admits that he did not contact the Defamation Plaintiffs prior to publication of the First Vakras Article to seek a response to the matters contained in that article and 'further says that given the nature of those matters it was not necessary for him to do so'.

709 The second of the seven matters is that Mr Vakras did not at any time prior to the publication of the Second Vakras Article make any, or any reasonable, attempt to ascertain Mr Cripps' side of the story, and the Second Vakras Article makes no attempt to set out his side of the story. In his defence, Mr Vakras admits that he did not contact Mr Cripps prior to publication of the Second Vakras Article to seek a response to the matters contained in that article.

710 The third of the seven matters is that Mr Vakras did not at any time prior to the publication of the First Vakras Article take any, or any adequate, steps to verify the accuracy of that article insofar as it concerned the Defamation Plaintiffs. In his defence, Mr Vakras admits that he did not take any steps to verify the accuracy of the First Vakras Article beyond satisfying himself that his recollection and understanding of the matters contained in that article was accurate and that 'given the nature of those matters ... it was not necessary for him to take any such steps'.

711 The fourth of the seven matters is that Mr Vakras did not at any time prior to the publication of the Second Vakras Article take any, or any adequate, steps to verify the accuracy of that article insofar as it concerned Mr Cripps. In his defence, Mr Vakras admits that he did not take any steps to verify the accuracy of the Second Vakras Article beyond satisfying himself that his recollection and understanding of the matters contained in that article was accurate.

712 The fifth of the seven matters is that Mr Vakras' motivation in publishing the First Vakras Article, insofar as it concerned the Defamation Plaintiffs, was to smear them and maximise the damage to their reputations. Mr Vakras has denied this allegation.

713 The sixth of the seven matters is that Mr Vakras' motivation in publishing the Second Vakras Article, insofar as it concerned Mr Cripps, was to smear him and maximise the damage to his reputation. Mr Vakras has denied this allegation.

714 The seventh of the seven matters is that Mr Vakras' actions before and since publication of the Vakras Articles have been improper and unjustified because:

(a) Not only has Mr Vakras failed to apologise for, or to retract, the Vakras Articles but he stated the following in the Second Vakras Article:

Cripps wants this page removed claiming that what I write is 'false' (!). This is not going to happen: to remove what is written, on the claim by Cripps' solicitor that what appears on it is a falsehood makes it a corollary that I agreed to remove it because I agreed it to be false. You have to wonder about the logic of his legal team.[323]

(b) Mr Vakras continued to make available the Vakras Articles on and from August 2009 and April 2011, respectively, using alternative internet hosting service providers.[324]

(c) Mr Vakras continues to maintain that it is true that Mr Cripps is a racist who holds views that are similar to those of Adolf Hitler.

(d) The Artists have made continuing and extensive publication of material calculated to embarrass, belittle, humiliate and ridicule Mr Cripps, including annexures to the Redleg v Artists Site entitled 'yourlovelypenis.html', 'cripps-hideous.html' and '2 March 2014 Cripps pulled his sites/index.html', which publications were said to have been improper, unjustified and/or lacking in bona fides.[325]

(e) The Artists are keeping Mr Cripps 'under constant electronic surveillance', which has increased the harm to him.

715 In his defence, Mr Vakras: admits the substance of (a), (b) and (c) above and states that he 'genuinely believes that [Mr Cripps] is a racist who holds views that are similar to those of Adolf Hitler'. He otherwise denies the allegations summarised at [714] above.

716 Mr Dibb submitted that, on the evidence before the Court, the Hitler Imputation could not be true, and the fact that Mr Vakras persisted with a defence of justification in relation to that imputation is greatly offensive and greatly aggravates the damages to which Mr Cripps is entitled. Mr Dibb made a similar submission with respect to the Harassment Imputation, which he contended has not been proved to be true in substance or in fact, and is therefore a 'very serious matter of aggravation'. To persist in an allegation as serious as the Harassment Imputation on the basis of the evidence available to Mr Vakras was said to amount to 'staggering cheek'.

717 Mr Dibb submitted that the conduct of the Artists up to the time of publication could be considered with respect to aggravation. He stated that the behaviour of the Artists in sourcing material and writing the articles on the Redleg v Artists Site could be described as 'stalking'. Mr Dibb contended that Mr Cripps could rely on the large scale data mining conducted by the Artists and storing of material[326] as increasing his hurt, concern and outrage at the conduct of the Artists in this proceeding.

718 Mr Gilbertson submitted that there was nothing unjustified or improper about the maintenance of the justification defences.[327] He also submitted that there was nothing improper, unjustified or lacking in bona fides about the 'Redleg v Artists' article because it accurately states that Redleg now runs Ruby's and that it was the respondent to objections raised in VCAT regarding Ruby's. Mr Gilbertson disputed Mr Dibb's submission that the article 'pursued' Mr Cripps into Ruby's.

719 Mr Gilbertson also submitted that the reference to 'Cripps would never ask "is that your lovely penis"' does not form the basis for aggravated damages because the 'lovely bottom' comment is admitted[328] and the point about the 'lovely penis' reference is to ask whether Mr Cripps would have asked a male a similar question.