Vakras & Anor v Cripps & Anor [2015] VSCA 193

157 By paragraph 8(e) of the statement of claim, Cripps pleaded the following meaning:

158 In substance, Vakras sought to justify that meaning. He relied upon the following:

(i) the first defendant refers to and repeats subparagraphs (1)(i) to (vii) and (ix) to (xvi) above;

(ii) the first defendant refers to and repeats subparagraphs (1)(vi) and (vii) of the particulars to paragraph 16A of the further amended defence of the second defendant;

(iii) by reason of the matters referred to above, the first plaintiff is a bellicose bully.

159 We have already set out the sub-paragraphs referred to in (i) at [97] above.

160 The particulars referred to in (ii) read as follows:

(vi) further, in or about January 2010, the first plaintiff falsely accused an exhibitor at the Gallery of being a liar and berated her in relation to electric fans that the first plaintiff had without the consent of the exhibitor installed at the Gallery, thereby disrupting the exhibitor's art works which were suspended from the ceiling;

(vii) during an exhibition at the Gallery in August and September 2010, the first plaintiff was rude and aggressive towards friends of the exhibitor who were setting up the exhibition and during the opening night of the exhibition, the first plaintiff shouted in a rude and aggressive manner at the exhibitor and a person who was pouring himself a drink at the exhibition during an exhibition at the Gallery- in- August and September 2010; the-first plaintiff shouted at the exhibitor in the presence of other persons with words to the effect that they had exceeded their bar tab and that no more alcohol would be served;

161 We need not set out all of the text which said, or implied that Cripps was a bellicose bully. It is enough to say that the article described him, in terms, as 'a bellicose bully limited in erudition and of limited intellect'. Elsewhere, it described him as a 'bully' and 'bellicose'.

162 The judge found that the imputation was conveyed and that it was defamatory.

163 The judge summarised the particulars relied upon as follows:

1. 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; 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 and Ms Waddelton.[63]

164 His Honour described the submissions relied upon by Vakras as follows:

1. 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.

165 His Honour rejected the justification defence. He concluded that:

1. 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. 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.

166 Ground 7(j), and also ground 7(b), are relevant. Vakras contends that the judge erred by finding that:

(j) the first appellant failed to establish that the Bully Imputation was true in substance and in fact or was substantially true (Reasons, [339]);

(b) the first respondent did not mistreat exhibitors (Reasons, [204] to [224]);

167 In this Court, counsel for Vakras argued that even if the evidence of the defendants was put to one side, the evidence was clear that the plaintiff is a bellicose bully. Counsel further submitted that for his Honour to find to the contrary was inconsistent with the finding which his Honour made with respect to the 'abuse' and 'humiliation' imputations.

168 It was submitted for Cripps in this Court that his Honour's analysis - that is, that the sequence of events did not accumulate to the point where the meaning conveyed by the article was justified - was not attended by error.

169 His Honour held that the gist of the imputation was that the plaintiff 'consistently behaves as an aggressive and unpleasant bully',[64] and that this behaviour was not confined to his dealings with artists. He considered whether justification was established in that context. If that was the gist of the imputation, then we would agree, subject to one matter, that there was no error in his Honour concluding that justification had not been established. It could have made no difference had his Honour accepted the defendants' evidence as to the entirety of his behaviour towards them.

170 But there is a problem in the way in which his Honour described the gist of the imputation. It is in the nature of things, as the hypothetical reader would surely know - and as the dictionary definitions to which his Honour was referred confirmed - that a bully characteristically exhibits his or her bullying characteristics towards people who are vulnerable in some way or another, not towards people at large. Use of the adjective 'consistently', without qualification, was in our opinion erroneous. Because the gist of the imputation was thus mischaracterised, the context in which his Honour considered justification was a false one.

171 Each of the people whom the judge found was bullied by Cripps was in a position of vulnerability. Money was withheld from the defendants both without cause and in an attempt to obtain an unwarranted advantage. Money was withheld from Mr Mickelson after he had been abusively sent away. Ms Bowman's problems with Cripps occurred when her exhibition, at the very least, was disrupted. So also in the case of Mr Mishriki's exhibition. Cripps also exhibited aggressive behaviour in the case of the exhibition by Ms Waddelton. Again, whilst his Honour said nothing about it in this part of his reasons, there was evidence that Cripps withheld moneys due from Ms Kim and Ms Biggs-Kocaj, the latter after her employment at the gallery had ended.

172 It is certainly true that Mr Murray, Mr Sedergreen, Ms Paul and Ms Curro gave no evidence of bullying behaviour by Cripps towards them. None of them, however, gave evidence of having got into a situation with Cripps which was likely to have induced bullying behaviour on his part.

173 There is also the question whether his Honour erred in finding that it was part of the gist of the imputation that Cripps' bullying behaviour was not confined to his dealings with artists. Is that what the hypothetical reader would glean from the article?

174 The article was solely concerned with Cripps' alleged mistreatment of the artists, in the context of an exhibition at the gallery which had been a signal failure. It was in that connection that the article described Cripps as a bellicose bully. The reader would surely perceive that the characterisation of Cripps as a bully was placed in a particular setting. That was not the less so because, as the judge found, almost all of the artists' complaints were inaccurate and unjustified.

175 We therefore doubt that it was correct to find that the gist of the imputation was, in part, that Cripps' alleged bullying behaviour was not confined to his dealings with artists. But, in any event, the justification evidence adduced from Mr Mickelson and Ms Waddelton extended beyond dealings with artists.

176 In our opinion, having regard to the proper characterisation of the gist of the bully imputation, it was erroneous not to conclude that justification was established. We should add that in our opinion there was also force in the submission for Vakras that there was inconsistency in the findings made by the judge with respect to the bully and the abuse imputations (as to the latter of which, see below).

177 Redleg pleaded, by paragraph 9 of the statement of claim, the following:

In relation to the Second Plaintiff, in its natural and ordinary meaning, the First Vakras Article meant and was understood to mean that the Second [Plaintiff] is operated and owned by the First Plaintiff, and because of the matters in paragraph 8 (a), (b), (c), (d) and (e), the Second Plaintiff is therefore a disreputable company and not to be trusted.

178 By his defence, Vakras pleaded the following meaning:

9A. Further or alternatively, he says that if the First Vakras Article was defamatory of the second plaintiff (which is denied), then in its natural and ordinary meaning of the First Vakras Article meant and was understood to mean that in its dealings with artists who exhibit their works at the Gallery, the second plaintiff is a company of questionable repute and not to be trusted and in that meaning the First Vakras Article was:

(a) true in substance and in fact and accordingly there is a defence at common law; further or alternatively

(b) substantially true and accordingly there is a defence under s.25 of the Defamation Act 2005 (Vic.).

PARTICULARS

(i) the first plaintiff is and was at all material times the sole director and secretary of the second plaintiff and beneficially entitled to all of its issued shares, by reason of which the first plaintiff is and was at all material times the directing mind and will of the second plaintiff;

(ii) the first defendant refers to and repeats the particulars to paragraph 8A above;

(iii) some or alternatively all of the conduct of the first plaintiff referred to in the particulars to paragraph 8A above (other than sub-paragraphs (l)(viii) and (4)) was conduct engaged in by the first plaintiff on behalf of the second plaintiff;

(iv) by reason of the matters referred to above, in its dealings with artists who exhibit their works at the Gallery the second plaintiff is a company of questionable repute and not to be trusted.

179 His Honour concluded that the defendant's imputation was not a permissible Polly Peck variant of the plaintiff's meaning.[65] His Honour found that the imputation pleaded by the plaintiffs, with a minor amendment, was conveyed. The imputation that the judge found was this:

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.[66]

180 His Honour held that this meaning was defamatory of Redleg because it conveyed the message that the company was disreputable because it was owned by the disreputable Cripps.

181 His Honour rejected the justification defence - which, of course, attached to the Polly Peck imputation and not otherwise. His Honour concluded that:

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.[67]

182 He expanded upon that conclusion.[68]

183 By ground 13(a), Vakras contends that the imputation as found was outside the plaintiff's pleaded case. The appeal with respect to the Redleg trust imputation (putting to one side, as we have earlier noted, the qualified privilege ground) is thus confined. Vakras contends that, by the statement of claim, Redleg directed attention specifically to the meanings pleaded by paragraph 8(a) to (e) with respect to Cripps in order to yield a meaning that Redleg was therefore a disreputable company. None of those meanings had spoken of Cripps being disreputable. But what the judge did was to omit reference to those meanings and to substitute for them meaning that Cripps was a disreputable person.

184 For the plaintiffs, it was submitted in this Court that the meaning found by the judge was well within Polly Peck principles.

185 The first Vakras article commenced by stating that the Gallery was run by the 'toxic Robert Cripps'. We have already referred to the descriptive nouns and adjectives which Vakras attached to Cripps. Immediately following those descriptors, the article continued:

Cripps also runs Redleg a transporter of art.

can you trust Cripps' Redleg?

186 We agree with the submission for Redleg that the meaning found by the judge was well within Polly Peck confines. The confined attack upon the imputation as found therefore fails.

187 We should add this. If Vakras had established that the imputations in the first article referable to Cripps, or Polly Peck variants, were true, then it seems that the 'Redleg trust' imputation must have failed. The judge concluded that the imputations as pleaded, or Polly Peck variants, or meanings which he found were conveyed, were not justified - with the exception of the duress imputation. We have concluded that there must be a re-trial with respect to Cripps' cause of action against Vakras upon the first Vakras article. On the re-trial, the 'profit' and 'Hitler' imputations and, it may well be, a re-pleaded 'disgraceful' imputation will fall for consideration. Even if a ground of appeal pertaining to the 'Redleg trust' imputation had raised the issue which we have been mentioning, we would not have been prepared to act upon the basis that Vakras would (as distinct from 'might') justify the defamatory meanings conveyed.

188 Later in these reasons, we reject the qualified privilege defence so far as it relates, inter alia, to the first Vakras article. There is no appeal against the damages awarded to Redleg in respect of the 'Redleg trust' imputation. In the event, we would dismiss Vakras' appeal against the judgment in favour of Redleg founded on that imputation.

189 We turn to the imputations pleaded as having been conveyed by the second Vakras article.

190 By paragraph 12(a) of the statement of claim, Cripps pleaded that the article conveyed the imputation:

The First Plaintiff's pattern of intimidating behaviour has left other artists too fearful to describe to the public their own negative experience with the First Plaintiff.

191 By paragraph 12A of his defence, Vakras pleaded what was said to be a Polly Peck variant, which he sought to justify. It was that -

(a) the first plaintiff's intimidating behaviour has left other artists reticent to describe publicly their own negative experiences with him.

(1) In relation to the meaning in sub-paragraph 12A(a), the first defendant relies upon the following;

(a) during an exhibition at the Gallery held in August and September 2010, the first plaintiff breached the contract with the exhibitor by failing to open the Gallery on the days specified in the contract. He also behaved in an aggressive and threatening manner towards the exhibitor;

(b) following an exhibition at the Gallery in or about April and May 2010, the first plaintiff refused to pass onto the exhibitor money received from the sale of the exhibitor's artwork;

(c) in or about January 2010, the first plaintiff insulted and demeaned an exhibitor at the Gallery in an aggressive and threatening manner;

(d) some or all of the exhibitors referred to above are reticent to describe publicly their own negative experiences with the first plaintiff.

[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 ture [sic] character.

194 The judge held that the plaintiff's imputation was not conveyed because the words 'too fearful' suggested that physical violence, as distinct from threats of legal action, may be involved.[69]

195 The judge further held that the meaning advanced by Vakras was not a permissible variant because there was a substantial difference between the conception of 'intimidating behaviour' and the conception of a 'pattern of intimidating behaviour'.[70]

196 His Honour concluded that the imputation carried by the article was this:

Mr Cripps' pattern of intimidating behaviour has left other artists reticent to describe publicly their own negative experiences with him

and that in that meaning it was defamatory.[71]

197 The imputation settled upon by his Honour was thus the Vakras meaning, but with the insertion of the words 'pattern of'.

198 Notwithstanding that his Honour had rejected the imputation as framed by Vakras, he went on to consider whether justification had been established - whether in that meaning or upon the imputation found. He held that it had not been.[72]

The learned judge erred in making the following findings of fact:

(k) the Polly Peck version of the Intimidating Imputation did not satisfy the principles in Hore-Lacy (Reasons, [453]);

(l) the first appellant failed to establish that the Polly Peck version of the Intimidating Imputation was true in substance and in fact or was substantially true (Reasons, [467]);

200 Vakras abandoned a ground that the imputation as found was outside the pleaded case. For that reason, it is unnecessary to consider Cripps' notice of contention relevant to the 'intimidating' imputation, which represented his fall-back position.

201 Counsel for Vakras argued that, contrary to his Honour's conclusion, there is no material difference between 'intimidating behaviour' and 'pattern of intimidating behaviour'. He further submitted that both the imputation as found by the judge and the meaning pleaded in the defence had been justified. Ms Kim had been kept out of her money. So, also, Mr Mickelson. Counsel referred also to Cripps' conduct towards the artists.

202 Counsel for Cripps submitted that the judge had correctly rejected the meaning pleaded by Vakras, and that the evidence relied upon with respect to justification was really no more than a complaint about late payment.

203 Contrary to the argument advanced for Vakras, we consider that the meaning which he pleaded was not a permissible variant of the plaintiff's meaning. We further consider that the meaning upon which the judge settled was not only within the pleaded case, but was a meaning which properly reflected a perceived difficulty with the plaintiff's meaning. We are not to be taken as concluding that the perceived difficulty was one of substance.

204 The justification plea was directed to the defendant's pleaded meaning, and not otherwise. Because the judge was correct in concluding that the meaning advanced for the defendant was impermissible, the justification plea did not fall for consideration. But if it had, we agree with the judge that the evidence adduced in support of the plea - which contrasted considerably with the particularisation in the defence - did not establish truth.

205 Because of the way in which judgment was entered in favour of Cripps in respect of the first and second articles, the fact that there must be a retrial in respect of Cripps' cause of action on the first article means that the judgment which reflects damages in respect of both articles must be set aside. We have referred to that problem earlier in these reasons.[73] A question which arises is whether, depending upon consideration of the 'harassment' imputation, judgment should be entered in favour of Cripps in respect of his cause of action founded on the second Vakras article for an amount to be determined by this Court, or whether this cause of action should also go back for retrial. We will return to this question when we have dealt with the 'harassment' imputation.

206 By paragraph 12(b) of the statement of claim, Cripps pleaded that the article had this meaning:

The First Plaintiff sexually harasses volunteers and staff at his gallery.

207 By paragraph 12A(b) of his defence, Vakras pleaded this meaning, which he alleged was true:

The first plaintiff has sexually harassed volunteers and staff at his gallery.

208 Vakras relied upon the following particulars by way of justification of the meaning which he advanced:

(a) in or about April or May 2009, the first plaintiff made several sexual advances at the Gallery to Laila, a woman who was a staff member or volunteer at the Gallery at that time;

(b) in or about November 2009, the first plaintiff made sexual comments at the Gallery to Laila and Thao, two female staff members or volunteers at the Gallery at that time, about their appearances and said to each of them that he wanted to buy them dinner because they were 'gorgeous' or words to that effect;

(c) in or about November 2009, the first plaintiff said to a female staff member or volunteer at the Gallery, whose identity the defendants object to disclosing prior to trial, that she 'looked like she has been shagging all night' or words to that effect.

209 In the article, Vakras set out part of what he said was an email that he had received from another exhibitor at the gallery. The excerpt said this:

I exhibited a show which is about human rights ... and the gallery owner has done an [sic] massive damage to my professional reputation ... Robert embarrassed the directors and executives as well ... not only him being unreasonable on everything he's 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.

210 The judge concluded that the meaning pleaded by Cripps was not carried because it suggested that Cripps always harasses volunteers and staff. On the other hand, the meaning pleaded by Vakras did not satisfy the principles in Hore-Lacy because it dealt only with past sexual harassment. His Honour rejected the submission for Vakras that the statement in the addendum was confined to the past tense.[74]

211 His Honour then concluded that the imputation carried by the article was this:

Mr Cripps has sexually harassed volunteers and staff at the gallery and, unless he is stopped, he will continue to do so.[75]

212 His Honour concluded that this was a serious defamation, and he explained why that was so.[76]

213 Notwithstanding his Honour's rejection of the defendant's meaning, he went on to consider the plea of justification. He said this:

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. 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.[77]

214 Evidence pertaining to sexual harassment was not only given by Ms Li, but also by Ms Biggs-Kocaj. His Honour gave consideration to the evidence of that witness, and also to the evidence of Ms Li.[78] In substance, he rejected the evidence of Ms Biggs-Kocaj and found nothing in the evidence of Ms Li which would make out an allegation of sexual harassment.

215 Vakras contends that the judge erred by making the following findings of fact:

(a) the first respondent 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 (Reasons, [203]);

...

(m) the Polly Peck version of the Harassment Imputation did not satisfy the principles in Hore-Lacy (Reasons, [457]);

(n) the first appellant failed to establish that the Polly Peck version of the Harassment Imputation was true in substance and in fact or was substantially true (Reasons, [468]).

He also contends that the harassment imputation as found was outside Cripps' pleaded case.

216 By notice of contention, relied upon in the event that this Court concluded that the judge's meaning was outside the pleaded case, the plaintiff contends that the judge erred by finding that the meaning which he pleaded was not conveyed by the article.

217 Counsel for Vakras submitted that the judge was correct to find that the meaning pleaded by Cripps was not conveyed. On the other hand, the judge had erred by rejecting the meaning pleaded by the defence as a permissible variant. That meaning was true. Further, the imputation as found by the judge was outside the plaintiff's pleaded case. Specifically, the imputation pleaded by Cripps did not allege that 'unless [Cripps] is stopped, he will continue to do so'.

218 It was submitted for Cripps that the judge had not misapprehended Ms Li's evidence. The evidence given by Ms Biggs-Kocaj would not support any version of the meanings. The judge's meaning was not outside the plaintiff's pleaded case, but if it was, then the judge should have found that the meaning pleaded by the plaintiff was carried by the article.

219 The reader would perceive that there were two aspects to the assertion of sexual harassment conveyed by the article. First, that the plaintiff had been sexually harassing 'staffs and volunteers as well'; and, by implication derived from the words 'I need to stop this and want to save poor girls who are volunteering for gallery assistant', that Cripps would sexually harass staff and volunteers in the future if he was not stopped.

220 The meaning pleaded by the plaintiff, by speaking in the present tense, did not accurately convey the gist of the article. Although that meaning admitted of the prospect of continuing harassment, it did not convey the meaning that the misconduct would continue unless Cripps was stopped. Although his Honour did not quite reason in this way, in our opinion he rightly concluded that the plaintiff's meaning was not conveyed.

221 On the other hand, comparing the plaintiff's meaning with the meaning assigned by Vakras, there was a material difference. The Vakras version was confined to the past, and that was not the import of the meaning advanced by Cripps.

222 The meaning upon which the judge settled may very well be regarded as an accurate statement of the meaning conveyed by the article. But we have no doubt that it was outside the plaintiff's pleaded case, by reason of the words 'unless he is stopped, he will continue to do so'.

223 The judge having correctly rejected the meaning advanced by Vakras, the particulars of justification became irrelevant. Nonetheless, we consider that his Honour was correct in concluding that the evidence would not have established justification had the defendant's meaning been relevant.

224 In our opinion, there will need to be a retrial of Cripps' cause of action in respect of the second Vakras article. That is so although, as we have concluded, the judge did not err in concluding that the 'intimidating' imputation had been established, and although the plaintiff might well have been entitled to succeed upon the meaning of the 'harassment' imputation settled upon by his Honour. It would not be satisfactory for this Court to assess damages in respect of an imputation outside the plaintiff's pleaded case, regardless that it was an imputation which might well be regarded as having been conveyed by the article.

225 On the retrial, it might well be that the plaintiff will seek to re-plead the 'harassment' imputation. It will be for the judge on the retrial to consider whether any such application should be granted.

226 On the retrial, it will be for the judge to determine whether or not the 'intimidating' imputation and any re-pleaded 'harassment' imputation have been made out. The observations which we have made about those matters could not, of course, bind the judge.

227 We turn now to the imputations alleged to have been conveyed by the Ms Raymond article.

228 It is unnecessary to set out the meaning of the 'humiliation' imputation pleaded by Cripps because the matter proceeded on the footing that what fell for consideration was a Polly Peck meaning pleaded by Ms Raymond:

As the operator of the Guildford Lane Gallery, the first plaintiff has repeatedly engaged in behaviour that humiliates and embarrasses artists who exhibit their works there.

229 The judge found that in the meaning set out above, the article was defamatory of Cripps. His Honour identified the particulars of justification as including:

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 and Ms Waddelton.[79]

230 The judge held that the 'humiliation' imputation had been established to be true. His Honour based that conclusion on the evidence of Ms Bowman, Mr Mishriki, Ms Mickelson and Ms Waddelton. Evidently, his Honour did not rest upon the evidence of the artists with respect to events on 5, 18 and 24 June 2009, likewise the disclaimer. He had already rejected the evidence of the defendants as to the events of 5, 18 and 24 June 2009, and had dealt with the disclaimer also.

231 The only remaining relevance of the 'humiliation' imputation is with respect to other imputations which the judge found were established, concerning which he held that there was no defence; and with respect to assessment of damages.

232 Here again, the matter proceeded on the footing of a Polly Peck meaning pleaded by Ms Raymond, which was alleged to be true. Thus:

As the operator of the Guildford Lane Gallery, the first plaintiff has repeatedly engaged in behaviour that bullies and abuses artists who exhibit their works there.

233 The defence particularised this plea, but there is no need to set out the particularisation.

234 The judge held that the imputation was defamatory, but that the defamatory meaning was true. Again, he based that conclusion on the evidence of Ms Bowman, Mr Mishriki, Mr Mickelson and Ms Waddelton.

235 Again, the only relevance of his Honour's conclusion that this imputation was true is what the defendants asserted was the impact of that finding upon other imputations which the judge found were established; and with respect to assessment of damages.

236 Consideration of this imputation proceeded upon a Polly Peck meaning pleaded by Ms Raymond, which she sought to justify:

As the operator of the Guildford Lane Gallery, the first plaintiff has repeatedly engaged in behaviour that destroys the exhibitions of the artists who exhibit their works there.

237 The defence pleaded, as particulars of justification, the entirety of the particulars subjoined to paragraph 8A of the Vakras defence and the conduct of Cripps with respect to Ms Bowman and Ms Waddelton and her visitors.

238 The matters particularised under paragraph 8A of the Vakras defence concerned alleged breaches of the hiring agreement, the alleged behaviour of Cripps towards Ms Raymond in early June 2009, the events of 18 June 2009, the placing of the disclaimer notices, the events of 24 June 2009, the prohibitions placed on the artists speaking with staff members for much of the period of the exhibition, and the alleged failure of the exhibition brought about by Cripps' conduct.

239 The judge, by this stage in his reasons, had already rejected the great bulk of that evidence, adduced as it was in the evidence of the defendants.

240 The judge held that the imputation was defamatory. He rejected the justification defence. This is what he said in that connection:

1. In relation to the Destruction Imputation, there was no evidence that Mr Cripps 'destroyed' the Exhibition[80] or any other exhibition. The exhibitions of Ms Bowman and Mr Mishriki were adversely affected by the fans and the absence of a sound system but they were not destroyed. Neither witness used the expression 'destroyed'. In any event, the element of repetition was not established.[81]

241 Ms Raymond contends that the judge erred by finding that:

(o) the second appellant failed to establish that the Polly Peck version of the Destruction Imputation was true in substance and in fact or was substantially true (Reasons, [506] and [507]);

242 Counsel for Ms Raymond submitted that the judge's findings were affected by his adverse credit findings, which influenced his conclusions about, inter alia, the events of 5, 18 and 24 June 2009. Counsel further submitted that Ms Bowman's exhibition was effectively destroyed, as was Mr Mishriki's exhibition. Cripps had not given evidence about his dealings with either Ms Bowman or Mr Mishriki.

243 Counsel for Cripps submitted that his Honour's findings with respect to justification were not determined by his adverse credit findings referable to the defendants. His Honour had accepted that the exhibitions of Ms Bowman and Mr Mishriki had been adversely affected, but they were not destroyed. Further, his Honour was correct to find that the element of repetition was not established.

244 The evidence of Ms Bowman and Mr Mishriki was that their exhibitions were physically disrupted by events at the gallery.

245 Ms Bowman had an exhibition as a solo artist in January 2010. She prepared a work based on a site visit for a specific gallery space. She delivered a work which was to be responsive to the passage of the viewer and the ambient airflow of the space. The exhibition 'entailed four large drops of paper-like textile that fell from a central beam onto the floor with - and it had perforations that curled down. It was very, very delicate textile designed for no more than ambient airflow to - so that it would respond to the view [sic] moving past the falling drapes'. The opening night was very hot. Four large ceiling fans buffeted the work. That was not particularly good for the work. On that occasion, and then on the following day, she had very unhappy conversations with Cripps.

246 The witness stated that although several people had commented to her on opening night that her work looked very nice, moving, that was beside the point. The work 'had not been fabricated to withstand the four large fans buffeting it over long periods of time'.

247 Mr Mishriki was an artist and co-curator of an event at the gallery in January 2009. The exhibition required a sound system. When the installation was plugged into the in-house sound system and turned on, the system blew a fuse. Mr Mishriki offered to go out and get a new fuse and to replace it. Cripps refused the offer. When asked what did this mean for the performance on the following night, Cripps said that they would have to use one speaker. Mr Mishriki said that he agreed with that. But when the time came for the performance, the system had disappeared. There was no sound system for the performance and no time to get another one.

The performance had been designed for sound reinforcement, to have a sound system in place, and when there was no sound system in place certain things could not be done, the whole form had been compromised as it wasn't - we could not implement everything in the performance that had been intended to be implemented because the sound system was not there, so that it was lacking, lacking in certain ... .

249 Asked whether Mr Mishriki continued with the exhibition after that, the witness replied 'No, no, certainly not'. But he added:

Not on the basis of the sound system or anything physical but just on the basis of Cripps' behaviour. It was impossible.

250 The evidence of the two witnesses was clear, in our opinion, that their performances had been seriously disrupted. Doubtless, artists who value the integrity of their exhibitions would take the problems which arose very seriously. Nonetheless, we consider that the judge was justified in coming to the conclusion that the evidence of Ms Bowman and Mr Mishriki did not establish that their exhibitions were destroyed.

251 Even if the judge had accepted the evidence of the defendants as to the circumstances attending their exhibition, such interference as occurred was of a different kind to that experienced by Ms Bowman and Mr Mishriki. The subject matter of the exhibition was not itself interfered with. Further, their exhibition was not destroyed, in the sense of being rendered a commercial failure, by Cripps' conduct as operator of the gallery.

252 In the event, we consider that there was no error in the judge concluding that the destruction imputation had not been justified. We should add that evidence was given by other exhibitors which passed a favourable light on conditions at the gallery, and which stood against a conclusion that the destruction of exhibitions, if it ever occurred, was to be characterised as 'repeated'.

253 Consideration of this imputation proceeded on the basis of a Polly Peck meaning pleaded by Ms Raymond, which she sought to justify. The meaning was this:

As the operator of the Guildford Lane Gallery, the first plaintiff has repeatedly engaged in behaviour that sullies the reputations of the artists he represents.

254 The same particulars were relied upon in respect of justification as were relied upon with respect to the 'destruction' imputation.

255 The particularly relevant parts of the article appear to be the following:

An artist reports her reputation and exhibition were "destroyed" by Robert Cripps and his bizarre unchecked antics.

Say NO to being abused and having your show destroyed and your reputation sullied and then receive no support or backup.

256 In addition, the article referred at length to the ways in which, as Ms Raymond alleged, Cripps had interfered with the effective presentation of the exhibition. Most of the allegations set out were, as we have previously noted on a number of occasions, rejected by the judge.

257 The judge held that the Polly Peck imputation pleaded by Ms Raymond was defamatory. He identified the particulars relied upon by way of justification, and held that justification had not been established. He explained that rejection as follows:

1. In relation to the Sullies Imputation, the evidence does not establish that Mr Cripps sullied the reputation of any artist as distinct from humiliating or abusing four of them, most often in private conversations.[82]

258 The 'four of them' to whom his Honour there referred were presumably Ms Bowman, Mr Mishriki, Mr Mickelson, and Ms Waddelton.

The learned judge erred in making the following [finding] of fact:

(p) the second appellant failed to establish that the Polly Peck version of the Sullies Imputation was true in substance and in fact or was substantially true (Reasons, [506] and [508]);

260 Counsel for Ms Raymond submitted that the compelling inference from the evidence concerning the effects that Cripps' conduct had on the exhibitions by Ms Bowman and Mr Mishriki, and his Honour's acceptance that their evidence adversely affected their exhibition and performance, was that Cripps had repeatedly engaged in behaviour that sullies the reputation of artists he represents.

261 Counsel did not rely upon Cripps' dealings with Ms Waddelton or Mr Mickelson. Neither did he rely upon Cripps' alleged conduct with respect to the defendants.

262 Counsel for Cripps submitted that his Honour's finding was not in error. Neither Ms Bowman nor Mr Mishriki had given evidence that their reputations had been adversely affected by what transpired in connection with their exhibitions.

263 In our opinion, there was no error in his Honour concluding that justification had not been established. Whilst, in our opinion, there was force to the submission for Ms Raymond that the disruption of the exhibitions by Ms Bowman and Mr Mishriki was likely to have sullied their reputations, it might well be perceived, to the contrary, that the problems were evidently created by the gallery operator, and so told against the gallery, rather than the artist. Further, we consider that the evidence was not capable of establishing that Cripps had 'repeatedly' engaged in behaviour sullying the reputations of artists.

264 By paragraph 16(e) of the statement of claim, Cripps pleaded the following imputation:

The First Plaintiff, a professional gallerist, ceases to support and actively sabotages the artists he represents once he can no longer make a profit from them.

265 By paragraph 16A(e) of her defence, Ms Raymond pleaded an additional meaning which she sought to justify:

The first plaintiff has failed to support and has sabotaged the exhibitions of some of the artists who have exhibited their works at the Guildford Lane Gallery.

266 The particulars upon which Ms Raymond relied were the same particulars as were relied upon in respect of the 'destruction' and 'sullies' imputations.

267 The most relevant text in the article appears to be the following:

He had installed several "disclaimer" notices within the exhibition space (we'd hired the entire 2nd floor) and at the first ramp of the stairway leading up to the space a huge "WARNING" sign was posted.

When a gallery of its own volition does this, it says more about the gallery direction than anything else but damage is also done. It was effective enough to cast a pall over the content and therefore overall reception of the show, which was up for three weeks at the mercy of Cripps' vile interpretations. It was very effective, a complete sabotage, 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.

268 The only other text, so far as we can see, which might have been read as implying sabotage of exhibitions by Cripps was the reference to an artist having reported that her exhibition was 'destroyed' by Cripps, and the sentence reading:

Say NO to being abused and having your show destroyed and your reputation sullied and then receive no support or backup.

Those references were to destruction, rather than to sabotage.

269 The judge concluded that the imputation pleaded by the plaintiff was not conveyed; and that the defendant's meaning was materially different:

1. 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.[83]

270 His Honour then settled upon a different imputation:

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.[84]

271 The judge explained why he arrived at the imputation just mentioned in this way:[85]

1. 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.'

272 His Honour held that, in the meaning which he concluded was conveyed, the imputation was defamatory. He rejected the justification defence, saying that:[86]

1. In relation to the 'Polly Peck' version of the Sabotage Imputation, the discussion at [507] above about the Destruction Imputation is apposite. I am not satisfied that Mr Cripps has in any way 'sabotaged' the exhibition of any artist as distinct from engaging in conduct which had the effect of adversely affecting the exhibitions of Ms Bowman and Mr Mishriki.

273 He concluded also that the justification defence was not established with respect to the meaning which he found was conveyed.

274 Ms Raymond relies upon the following grounds of appeal:

The learned judge erred in making the following findings of fact:

(q) the Polly Peck version of the Sabotage Imputation did not satisfy the principles in Hore-Lacy (Reasons, [484]);

(r) the second appellant failed to establish that the Polly Peck version of the Sabotage Imputation was true in substance and in fact or was substantially true (Reasons, [509]).

275 She abandoned a ground which contended that the meaning found by the judge was outside the plaintiff's pleaded case.

276 Counsel for Ms Raymond submitted that the defendant's version of the imputation was not substantially different from Cripps' pleaded imputation because the sting of the imputation pleaded by Cripps was 'sabotage'. He submitted that the reference to profit added nothing to the imputation. He submitted also that credit findings affected the judge's conclusion with respect to justification and also that the evidence of Ms Bowman and Mr Mishriki amounted to Cripps having sabotaged their exhibitions.

277 It was submitted for the plaintiff that his Honour had been correct to reject the meanings pleaded by both the plaintiff and the defendant. The judge's meaning was correct. Neither of the incidents involving Ms Bowman or Mr Mishriki established 'sabotage'.

278 In our opinion, confining ourselves to the issues raised on the appeal, there was no error in his Honour's conclusions. Both counsel agreed that the meaning pleaded by the plaintiff did not arise. We agree. The judge's reasoning was correct.

279 Contrary to the submissions for Ms Raymond, we consider that the judge was correct to conclude that the meaning which she pleaded was materially different to the meaning pleaded by the plaintiff. There was a difference in tense, and we disagree with the submission that the omission of reference to 'further profit' did not materially differentiate the meanings pleaded by the plaintiff and Ms Raymond.

280 Because the Polly Peck meaning was rightly rejected, the circumstances pleaded as justification became irrelevant. For that reason, it is unnecessary to consider, in this connection, whether the challenge to credit-based findings with respect to events involving Cripps and the artists could be successfully mounted.

281 We have necessarily considered these grounds as they were argued. Though it matters not, in our opinion none of the meanings - whether advanced by the parties or as found by his Honour - represented the gist of the article. The only assertion of sabotage that was distinctly made related to the defendant's exhibition. Reference to an exhibition having been destroyed, and a warning that others should not run the risk of their exhibitions being destroyed was, in our opinion, remote from sabotage, and would be so understood by the reader. It follows, we consider, that the defamatory imputation which the article conveyed ought to have been much more confined than any of the meanings to which we have referred. But, as we have said, it matters not.

282 By paragraph 16(f) of the statement of claim, Cripps pleaded the following imputation:

The First Plaintiff, in his arts transportation business, is universally despised.

283 By paragraph 16A(f), the defendant pleaded a different meaning, which he sought to justify:

The first plaintiff is a person who is widely despised.

284 The defendant particularised a justification plea by relying upon the alleged circumstances of attending the exhibition to which we have repeatedly referred above and a plea that:

(ii) the first plaintiff is despised by many or alternatively all of the following:

(A) the first defendant;

(B) the second defendant;

(C) the exhibitor referred to in sub-paragraph (1)(vi) above;

(D) the exhibitor referred to in sub-paragraph (1)(vii) above;

(E) an exhibitor who exhibited at the Gallery in about April and May 2010, in respect of whom the first plaintiff failed or refused to pass on money received from the sale of the exhibitor's art work;

(F) a life model engaged by the first plaintiff at the Gallery in or about May or June 2010 whom the first plaintiff failed or refused to pay all of the money to which the life model was entitled;

285 The person referred to in particular (C) was Ms Bowman.

286 The person referred to in particular (D) was Ms Waddelton.

287 The person referred to in particular (E) was Ms Kim.

288 The person referred to in particular (F) was Mr Mickelson.

289 Having regard to the way in which his Honour resolved upon the meaning of the article, we should set out 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'll 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 and then receive no support or back up. Say NO more to providing Cripps with the oxygen to continue running this gallery. Say NO to Guildford Lane Gallery and go elsewhere. 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 of Cripps are well aware of his reputation, he is, as reported to me, 'universally despised'. If this isn't enough read on. If you still think you won't experience this sort of treatment it doesn't matter, he will treat others this way and your support just keeps him in business to do so.

290 The judge found that the plaintiff's imputation was carried 'because of the words "this man also runs Red Leg an arts transportation company, in this context I am aware that he is professional (sic) avoided" and that "he is, as reported to me, 'universally despised'"'.[87]

291 The judge rejected the defendant's pleaded meaning as being, in one way, more serious, and in another way, substantially less serious than the meaning pleaded by the plaintiff.

292 His Honour found that the imputation was defamatory, that the defendant's pleaded meaning was not justified and that the plaintiff's pleaded meaning, a fortiori, was not justified.

293 The grounds of appeal do not challenge the meaning which his Honour found. Nor do they challenge - though it would not be relevant to do so - his Honour's conclusions as to want of justification. The sole challenge, then, is with respect to his Honour's rejection of the defence of qualified privilege, and to his finding, in any event, that Ms Raymond was actuated by malice.

294 Because, as we later conclude, the defence of qualified privilege could not be established, it follows that his Honour's finding with respect to the 'despised' imputation stands unimpeached.

295 By paragraph 16(g) of the statement of claim, Cripps pleaded that:

The First Plaintiff, by reason of his ignorance of art, is not a fit and proper person to be a gallerist.

296 By paragraph 16(a) of her defence, Ms Raymond pleaded that that meaning was not conveyed by the article.

297 For the reasons which the judge explained, this imputation very much rested on the tenor of the article generally.

298 The judge held that the article, when read as a whole, 'clearly carries the pleaded imputation'. His Honour explained his conclusion this way:

1. 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.[88]

299 His Honour concluded that this imputation was clearly defamatory because:

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.[89]

300 By ground 7(r), it is contended that the judge erred by finding that:

The unfit imputation was carried by the Raymond article.

301 Counsel for Ms Raymond submitted that the 'unfit' imputation was not carried. The article did not state that Cripps was ignorant of art. Nor was such ignorance implied by the words 'if it were about the art, the gallery director would of course already know that Surrealism is a protestant movement ... in the name of religion'. Further, even if that implied ignorance, it was ignorance of Surrealism. This did not support a finding that the article conveyed the plaintiff's meaning.

302 Counsel for Cripps submitted that, as a whole, the article conveyed a message of ignorance of art in general, and a focus only on the profit that could be extracted and the appeasement of Cripps' appetites. Thus, for instance, complaint in the article that there had been no review 'critiquing [the exhibition] properly' contrasted with the ignorant response which, according to the article, Cripps had given.

303 In any event, counsel submitted, defamation is very much a matter of impression and the article complained of conveys an impression of artistic ignorance generally, even if, on close analysis, the text made only a more specific allegation of ignorance of Surrealism.

304 In our opinion, there was no error in the judge's conclusion that the meaning pleaded by the plaintiff was conveyed. We have no doubt that the article implied that Cripps was ignorant of the Surrealist school. But beyond that, the article in the broad carried the message that Cripps was ignorant of art and interested in profit.

The second plaintiff is operated by the first plaintiff and by reason of the matters in paragraph 16 above, the second plaintiff is a disreputable company to be avoided by artists and other potential customers.

306 Ms Raymond pleaded a different meaning, which she sought to justify:

The second plaintiff is a company of questionable repute and should be avoided by artists.

307 In support of justification, Ms Raymond referred to all of the particulars relied upon by Vakras in justification with respect to the first Vakras article, and the particulars of justification with respect to Cripps' claim against Ms Raymond.

308 The only reference to Redleg was in the context of it being an arts transportation company. The relevant text is set out above at paragraph [289].

309 At trial, counsel for the plaintiff conceded that the meaning pleaded by Ms Raymond was 'consistent with the principles in Hore-Lacy'. The judge did not agree. He said that there was a material difference between the phrase 'a disreputable company' and 'a company of questionable repute'. That was because the latter raises a doubt about the company's reputation, whereas the former definitively states that the company is disreputable.

310 The judge rejected a submission for Ms Raymond that the plaintiff's imputation was not carried by the article, because the article did not say anything about Redleg being disreputable. He stated that 'The article refers to Redleg and treats it and Mr Cripps as synonymous'. Thus, his Honour stated, 'Mr Cripps' alleged negative characteristics are attributed to Redleg'.[90]

311 His Honour then concluded that the article conveyed a different imputation:

Redleg is a disreputable company and should be avoided by artists.[91]

312 In that meaning, his Honour concluded that the imputation was defamatory of Redleg. It contained the additional sting that artists should not conduct business with it.

313 Though it mattered not, his Honour found that Ms Raymond had not established that the imputation she had pleaded, still less the imputation found by his Honour, was true.

314 By ground 13(c), it is contended that the 'Redleg avoid' imputation was outside the plaintiff's pleaded case.

315 Redleg, by notice of contention, argues that the judge erred by finding that the meaning which it pleaded was not conveyed. But, as elsewhere, the notice of contention was pressed only in the event that this Court determined that the meaning found by the judge was outside the plaintiff's pleaded case.

316 Counsel for Ms Raymond submitted that the meaning pleaded by Redleg directed attention to meanings pleaded by Cripps as against Ms Raymond. The only meaning which referred to Redleg focused upon the arts transportation business, but Cripps had given evidence that the new venture, Ruby's Music Room, was run by Redleg. That had nothing to do with the arts transportation business. It followed that the judge's meaning, in substance, extended beyond the meaning pleaded by the plaintiff which had focused upon the arts transportation business. As a corollary, it would have required Ms Raymond to go further than her pleaded case in justification.

317 Counsel for Redleg submitted that the judge's meaning was conveyed and was within the range of meanings on which Redleg was entitled to succeed. But if that was not so, then the plaintiff's meaning was conveyed.

318 In our opinion, counsel for Ms Raymond was correct to submit that the judge's meaning went beyond the meaning pleaded by Redleg. It was to the effect that Redleg was a disreputable company and should be avoided generally by artists. So far as the plaintiff's pleading was concerned, the avoidance was, in substance, concerned with Redleg as an arts transportation business operated by Cripps.

319 The question which then arises is whether the judge ought to have found that the plaintiff's meaning was conveyed. Although his Honour did not distinctly state why he considered that the meaning did not arise, a comparison of the meaning pleaded by the plaintiff and the judge's meaning shows that the latter omitted reference to 'and other potential customers'. That omission was correct, and it shows why the plaintiff's imputation did not arise.

320 Thus, in all, the plaintiff's pleaded meaning was not conveyed and the judge found for Redleg on a meaning which was outside its pleaded case.

321 The cause of action pleaded by Redleg against Ms Raymond was founded on a single imputation. We do not say that it might not have been possible for Redleg to frame the meaning upon which it relied in a way which might have been held to be defamatory and incapable of justification. But it appears to us that it would be wrong in the particular circumstances to do otherwise than allow Ms Raymond's appeal and set the judgment in favour of Redleg aside, and instead dismiss the claim. The situation is not like that which arises with respect to the first Vakras article, where on remitter for retrial of Cripps' cause of action the plaintiff might seek leave to replead the 'disgraceful' imputation.

322 The defendants pleaded qualified privilege with respect to all three articles. Their pleading took this general form:[92]

8D. Further or alternatively, if the First Vakras Article was defamatory of the first plaintiff (which is denied):

(a) in publishing the First Vakras Article, the first defendant was:

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

(ii) responding to a defamatory attack by the first plaintiff, namely the first plaintiff's statement made publicly at the opening of the defendants' exhibition at the Gallery that the first defendant's exhibition was racist;

(b) accordingly, the first defendant 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 the first defendant the information referred to above;

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

323 The judge rejected the defence in each instance. He held that - (1) there was not the necessary reciprocity of duty and interest between the particular defendant and the persons to whom the publication was made; (2) in the case of the causes of action pleaded by Cripps, the publication was not a response to a public attack made by Cripps at the opening of the exhibition that the exhibition was racist; and (3) in any event, the publication was, in each instance, actuated by malice.

324 Although the notice of appeal challenged the judge's findings with respect to the three articles, at the hearing the challenge was restricted to the first Vakras article and the Ms Raymond article. Further, the 'response to attack' plea in the defences was not pursued. In the event, the questions to be decided became, in the case of the two articles - (1) did the judge err by finding that the article was not published in the performance of a social or moral duty or to protect a legitimate business interest; and (2) did the judge err in finding that each defendant was actuated by malice? The second issue, of course, would only arise if this Court concluded that the judge erred in the first way specified.

1. 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.
2. 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.
3. 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.
4. 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.[93] 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.
5. 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.[94] The evidence of the Artists set out at [269]-[270] supports this conclusion. The role of search engines was not mentioned in either Vassiliev or Trumm.
6. The evidence summarised at [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.
7. 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.[95]

326 The evidence to which his Honour referred at Reasons [258]-[270] was evidence, according to his Honour's findings that -

(1) Cripps was asked by a volunteer at the gallery, several months after the exhibition, 'Have you guys seen this?'.

(2) Cripps was told by a Mr Tortoni that he was aware of 'the articles'.

(3) Ms Curro 'skimmed' one or other of the Vakras articles in about July 2013, when a friend sent it to her.

(4) Ms Paul conducted a Google search of the gallery and Cripps in late 2009 and came upon the first Vakras article. On later occasions, she conducted searches on Google again, using Cripps' name, and she saw all three articles.

(5) Ms Paul gave evidence that other friends had told her of 'Googling' the name of Cripps or the gallery, and that they had come across the articles as well.

(6) Ms Czarski viewed the first Vakras article in early 2010, and had seen it subsequently. She mostly searched for and viewed it when requested by Cripps.

(7) A Google search performed by the plaintiffs' counsel, in court, in March 2014 showed that the ninth result in a search of Cripps' name was a version of the first Vakras article.

(8) A Bing search performed on 19 March 2014 of Cripps' name produced, as the second result, the first Vakras article, and, as the tenth result, the Ms Raymond article.

327 Having dealt with the first Vakras article so far as it concerned Mr Cripps, as set out above, his Honour repeated that analysis in the case of Redleg's claim arising from that article[96] and in the case of the Ms Raymond article so far as it concerned Cripps.[97]

328 Defendants' counsel submitted that the first Vakras article and the Ms Raymond article were published in the performance of a social or moral duty or to protect an interest of persons with a corresponding duty or interest in receiving that material. According to his submission, the websites on which the articles were posted were specialist websites, and were unlike those of newspapers and other media organisations. Counsel identified the duty or interest as being one of warning other artists or exhibitors about the defendants' negative experiences in exhibiting their works at the gallery, and in dealing with Cripps and Redleg (Cripps being the sole director and company secretary of the latter).

329 Counsel submitted that the articles were likely to be read by persons with an interest in art, in particular surrealism, or who had a connection with Cripps or the gallery. They were unlikely to be read by a casual web surfer.

330 Counsel further submitted that some of the judge's findings with respect to publication of the first Vakras article were wrong. They had the effect of over-estimating the extent to which publication was established. He submitted also that findings which the judge made as to the extent of publication of the Ms Raymond article did not accord with the evidence.

331 Plaintiffs' counsel submitted that the defendants could not create their own category of privileged occasions merely by asserting a moral duty. It was not enough that the defendants themselves thought themselves to be under such a duty. Qualified privilege protects occasions where it is for the common convenience and welfare of society that communications should be protected. This case fell well outside the ambit of any such protection.

332 Counsel further submitted that qualified privilege is not applicable to publication to the world at large. If publication is made to a large audience, a claim of qualified privilege at common law will be rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected.[98]

333 Counsel submitted, again, that this was not a subscription site or a site in any way restricted. It was said to be the fact that the most damaging publications on the internet are made to persons who are performing web searches in relation to individuals and businesses; such a process bypassing the question of what the site in question is about.

334 Counsel also drew attention to the fact that Ms Raymond knew that 'Googling' was a common occurrence. It should be inferred that Vakras also knew of that matter, because he was the operator of his website, he had created it years before, and he had submitted it to Google to ensure that it was searched. Like Ms Raymond, he had checked the results achieved by searches in relation to the gallery and Cripps.

335 Crucially, counsel submitted, the defendants were aware that they could prevent their websites being indexed by search engines, but had not done so. This showed that they were knowingly choosing to publish without regard to whether those accessing the sites had the reciprocal interest that is essential to the privilege.

336 In our opinion, it was correct for the judge to reject the defences of qualified privilege pleaded by Vakras and Ms Raymond. The questions to be decided were whether, as defendants' counsel submitted below and in this Court, the first Vakras article and the Ms Raymond article were published in pursuance of a social or moral duty to warn other artists or exhibitors about the defendants' negative experiences in exhibiting their works at the gallery and in dealing with Cripps; and whether they properly addressed that duty or interest by drawing the attention of such persons to those matters via specialist websites.

337 The difficulties of application of the principles of moral or social duty, and of the need for reciprocity of interest, were described this way in Bashford v Information Australia (Newsletters) Pty Limited:

These principles are stated at a very high level of abstraction and generality. 'The difficulty lies in applying the law to the circumstances of the particular case under consideration." Concepts which are expressed as 'public or private duty; whether legal or moral" and 'the common convenience and welfare of society' are evidently difficult of application. When it is recognised, as it must be, that 'the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact', it is clear that in order to apply the principles, a court must 'make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication'.[99]

338 In the present case, it is clear that things went radically wrong in the staging of the exhibition. It is beyond question that there was disputation between the defendants and Cripps in the course of the exhibition. The fact that the exhibition was a commercial failure was not, however, necessarily the consequence of that disputation. Indeed, its commercial failure might have been fairly readily forecast. But the defendants' complaints - largely unwarranted, as the judge found them to be - were about the general milieu in which the exhibition was, for the most part, conducted; and, in small measure, about the delay in paying what was due to them. In their articles, the defendants supplemented their complaints about Cripps with recitation of the negative experiences of other artists who had exhibited at the gallery.

339 In our opinion, objectively considered, the circumstances called for a conclusion that the defendants were under a moral or social duty, or had an interest, which met the characterisation given it by their counsel; and that other artists who might have been considering exhibiting at the gallery had a reciprocal interest in receiving information from the defendants.

340 But that conclusion gives rise to questions whether the first Vakras article and the Ms Raymond article were in fact published pursuant to such moral or social duty or interest; and whether, if so, they nonetheless involved publication of impermissible extent.

341 The judge appears to have answered the first of those questions in the negative because the article (speaking of the Vakras article, but it applied to all of them) 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'.[100] The websites were not specialist websites of the kind considered in Vassiliev v Cass[101] or by the High Court in Bashford.[102] Persons other than the artists could have, and did, access those sites.

342 It is stated in Gatley on Libel and Slander that:

... It follows from the fundamental requirement of reciprocity of duty and interest that publication to a person who does not share in this reciprocity is not generally privileged. As a general rule therefore the defendant should be careful to make his communication only to those persons who have a legitimate interest or duty in relation to the subject matter. The fact that a communication between A and B is privileged does not justify A in making the communication in a manner, or at a time, which would necessarily involve its publication to other persons who have no such interest or duty and no privilege would prima facie attach to any such publication.[103]

343 There is, however, authority that, as between A and B in the above example, the publication would still be privileged.[104] So, in the present case, if one accepted the existence of necessary reciprocity insofar as the articles were published to other artists and potential exhibitors, it is arguable that they were protected by the pleaded qualified privilege.

344 It follows from what we have said that it cannot be concluded, only because there was publication to the world at large on general websites, that publication was not done in performance of any relevant duty or interest. The fact, however, that there was publication to the world at large - assuming it to be the case - would be evidence of excessive publication, and thus of publication not protected by qualified privilege.

345 The propositions stated above direct focus upon his Honour's conclusion that there was, in effect, excessive publication. We consider that the evidence stood this way:

(1) The articles were placed on websites which were generally accessible on the internet.

(2) The defendants knew that they could limit access to their sites, but took no steps in that connection.

(3) The websites were specialist sites. Contrary to the judge's conclusion,[105] they should be so characterised despite the fact that they dealt not only with the art of the particular defendant, but also the matters set out by his Honour at [403] in his reasons.

(4) The websites themselves were unlikely to have been directly accessed by persons other than artists or persons with an interest in the surrealist works of two obscure and commercially unsuccessful Melbourne artists.

(5) The articles were accessible, in the period which commenced on 1 April 2010 and which continued until trial, by way of Google or Bing searches. Such searches, so far as the evidence revealed it, only turned up the articles if a search was done of Cripps' name, or perhaps a search of the gallery by name. Intending no disrespect, we doubt that Cripps would be described as a household name.

(6) There was some evidence that the articles were in fact accessed by persons other than artists. For the most part, the proved access was by persons connected with Cripps. But there was some evidence of access by other persons.

(7) On the other hand, the judge's finding[106] that it was 'highly likely that in the period from 1 April 2010 until now, a large number of people have read the article', that some had done so by actively searching for it and some, it should be inferred, by randomly 'surfing' the internet or by following links, was, with respect, speculative and improbable. What we have said at (3)-(6) above is in point. Also in point is our analysis, later in these reasons, of the evidence of publication of the Ms Raymond article.

346 In all the circumstances described, we consider that there was evidence of excessive publication of the first Vakras and the Ms Raymond article, not protected by qualified privilege. The evidence leading to that conclusion was not as strong as the judge perceived it to be, but it justified the conclusion which his Honour reached.

347 It is unnecessary, in the event, to consider his Honour's findings with respect to malice.

348 It remains to say that if, as we consider should happen, the appeal is allowed against judgment for Cripps on the first Vakras article, and against judgment for Cripps on the second Vakras article, and if those causes of action are remitted for retrial, then in our opinion Vakras should not be permitted to re-agitate the qualified privilege defence.

Damages - Cripps' cause of action against Ms Raymond

349 The judge awarded Cripps $50,000 ordinary compensatory damages and $20,000 aggravated compensatory damages (which we will describe hereafter simply as 'aggravated damages') for the libels contained in the Ms Raymond article. The grounds of appeal most particularly contend[107] that the former sum was 'manifestly excessive'[108] and that, in assessing aggravated compensatory damages, the judge relied on punitive matters, contrary to s 37 of the Act.[109] It is not contended, however, that the award of $20,000 aggravated damages was manifestly excessive.[110]

Ordinary compensatory damages - manifest excess?

350 The concept of manifest excess with respect to an award of damages was comprehensively considered by Hayne J in Rogers v Nationwide News Pty Ltd.[111] The question to be answered is whether the verdict bespeaks error, this calling into play the residual class of case described in House v The King.[112]

351 Sometimes, by analogy, a person attacking a sentence as being manifestly excessive will offer a particular explanation why it was that the sentencing discretion miscarried. That is treated as a particular of the ground of manifest excess, rather than as an allegation of specific error. In this case, counsel for Ms Raymond proffered explanations of that kind, which we will treat in the same way, notwithstanding that some of them were the subject of specific grounds of appeal.

352 It was contended for Ms Raymond that the judge, in effect, had concluded that the Ms Raymond article was more widely published than the evidence justified.[113] So also, counsel submitted, evidence as to the 'grapevine effect' of the publication was limited.[114] Again, by ground 24, it was contended that the judge made a wrong finding that actions by Cripps had not provoked the publication. Provocation may stand in mitigation of damages. Further again, by ground 27, it was contended that the judge failed to give sufficient weight to the fact that he found some of the imputations which Cripps alleged were true.

353 The judge set out the relevant conceptual framework in which he assessed pure compensatory damages at [550] to [567] and [577] to [579] in his reasons. No exception was taken in this Court to the principles which his Honour there stated.

354 His Honour dealt with the issue of provocation as follows:

1. 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.
2. 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;[115] that the only breach of the Hiring Agreement committed by Redleg was the late payment of the Bond and the Sale Proceeds;[116] that Mr Cripps' conduct on 18[117] and 24[118] June 2009 and his email of 26 June 2009[119] were not unreasonable; and that the Disclaimer was legally unobjectionable.[120]
3. 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.
4. 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.[121]

355 The judge dealt at considerable length with the effect upon Cripps, as his Honour determined it to be, of the libels contained in the Vakras articles. Then he turned to the Ms Raymond article. This is what he said:

1. The Actionable Raymond Imputations attack Mr Cripps' integrity and competence as a gallerist and as an arts transporter. They negate all of the key attributes that a gallerist needs to possess in order to succeed in his or her chosen vocation. They caused significant distress and hurt to Mr Cripps because he spent $1 million to fit out the Gallery in 2008 and he was proud of the space he had created and its 'stellar'[122] reputation in the art world in the period prior to the publication of the Impugned Articles.
2. Mr Cripps gave evidence that he could not bring himself to read the Raymond Article, unless he is 'really forced to'. His general demeanour also indicated that he was very hurt by the article. My observations at [669] to [687] above - other than the observations that are specific to the Hitler Imputation and the Harassment Imputation - are also relevant to Mr Cripps' hurt feelings arising from the Raymond Article Imputations.

1. In relation to the harm to Mr Cripps' personal and professional reputation that was caused by the Actionable Raymond Imputations, Mr Gilbertson submitted that any such harm was insignificant. In support of that contention, Mr Gilbertson relied on Mr Cripps' negative answer to each of the following interrogatories:

Has anyone advised you that as a result of reading the Raymond Article they believed that:

(a) you, a professional gallerist, have repeatedly engaged in behaviour that embarrasses, humiliates, bullies, abuses and generally mistreats the artists you represent;

(b) you, in your business as a professional gallerist, are universally despised and are to be avoided at all costs;

(c) you have so poorly treated and supported some of the artists you represent that they have left you and the Gallery;

(d) you, a professional gallerist, cease to support and actively sabotage the artists you represent once you can no longer make any further profit from them;

(e) you, by reason of having done the things referred to in paragraphs (a), (c) and (d) above, are not a fit and proper person to be a gallerist;

(f) you, by reason of your ignorance of art, are not a fit and proper person to be a gallerist?

1. For the reasons set out at [495] to [498] above, the Actionable Raymond Imputations are defamatory. In my opinion they are of a nature that it can be readily inferred that they damaged Mr Cripps' personal and professional reputation. Mr Cripps' answers to the above interrogatories are insufficient to displace this inference. My observations at [688] to [700] above - other than the observations that are specific to the Hitler Imputation and the Harassment Imputation - are also relevant to the harm caused to Mr Cripps' reputation by the Raymond Article Imputations.

1. The need to vindicate Mr Cripps' personal and professional reputation also requires that a substantial amount of damages be awarded to Mr Cripps. My observations at [702]-[703] above are also relevant to the Raymond Article Imputations and Ms Raymond's conduct in maintaining the Raymond Article on the internet since 2009.
2. 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 Raymond Article.
3. The substantial damages to which Mr Cripps would otherwise be entitled must be moderated in the light of the following mitigating circumstances:

(a) There was some evidence that Mr Cripps mistreated some exhibitors and adversely affected their exhibitions.[123]

(b) There were some adverse aspects of Mr Cripps' prior reputation.[124]

(c) There were some elements of truth in some of the Raymond Article Imputations.[125]

(d) There is some overlap between the damage to Mr Cripps' reputation that was caused by the Actionable Raymond Imputations and the damage caused by the Actionable Vakras Imputations. Section 38(1)(d) of the Act requires that this be taken into account in assessing damages.[126]

356 At [749], his Honour cross-referenced his Reasons at [669] to [687]. Those other paragraphs essentially referred to the first Vakras article and did not have much connection with Cripps' claim against Ms Raymond - though see [672].

357 The cross-reference to [495]-[498] at [752] in his Honour's Reasons referred simply to his Honour's findings that the four proven imputations in the Ms Raymond article were defamatory.

358 The cross-reference to [702]-[703] at [754] in his Honour's Reasons was a reference to his finding that there had been a 'sustained, wholesale attack' on Cripps' character, 'a relentless undermining of his character for over four years', this making 'the need for vindication self-evident'.

359 His Honour's reference at [755] in his Reasons to the 'grapevine effect', and his cross-reference to his Reasons at [629] to [635] picked up his Honour's inference that there 'has been a considerable grapevine effect since 1 April 2010', an inference which, for the most part, addressed the effect of the Vakras articles.

360 We have noted the gist of the submissions advanced for Ms Raymond at [352] above.

361 Counsel for Cripps submitted that Ms Raymond's appeal did not challenge the judge's finding that his client had been very greatly distressed and traumatised by the articles. The award of pure compensatory damages, counsel submitted, 'could hardly be regarded as excessive for the publication in question'.

362 The following matters stand in favour of the award of ordinary compensatory damages being 'within range'.

363 First, there is the fact that Cripps suffered personal distress and hurt of considerable magnitude as a result of the publication of the articles. Although we consider it clear that it was mainly caused by publication of the Vakras articles, that was not wholly the case.

364 Second, we agree with the judge that the proved imputations made in the Ms Raymond article did impact upon Cripps' professional and personal reputation. That was so despite Cripps' answers to interrogatories, upon which Ms Raymond relied. The damages awarded had to be sufficient to vindicate Cripps' reputation.

365 Third, the article was published on a website which could be generally accessed, and posting continued for years. Moreover, other postings potentiated the article being accessed by internet searchers.

366 Fourth, even if, contrary to the judge's finding, it should have been concluded that the Ms Raymond article was provoked by statements or conduct of Cripps, the article was a disproportionate and unreasonable response to the assumed provocation.

367 There are, however, weighty considerations on the other side of the ledger.[127]

368 First, Cripps pleaded that the Ms Raymond article contained six defamatory imputations against him. The judge found that the article did contain six defamatory imputations, although for the most part they were not imputations as pleaded by Cripps. The judge found that two of those imputations were true - that is, that Cripps had repeatedly engaged in behaviour which humiliated and embarrassed artists exhibiting at the gallery; and that he repeatedly engaged in behaviour which bullied and abused artists who exhibited at the gallery. He also found that there were elements of truth to the 'destruction', 'sullies' and 'despised' imputations. The combined effect of those findings, which, for the most part related to Cripps' conduct towards exhibitors, was such as to significantly damage Cripps' professional reputation as a gallery operator. That circumstance needed to be given considerable weight, in our opinion, in the assessment of damages.[128]

369 Second, the judge also found that the 'duress' imputation conveyed by the first Vakras article had been justified, and he should have found that the 'bully' imputation in that article had also been justified. Those matters also bore upon Cripps' professional reputation, and as well his personal reputation.

370 Third, we consider that his Honour did overestimate the extent of publication of the Ms Raymond article, and the grapevine effect attributable to it; matters which must inevitably have influenced his Honour's award.

371 It is necessary to carefully focus upon what publication of Ms Raymond's article was either proved, or could be inferred - that is, as distinct from evidence of publication of the Vakras articles.

372 Cripps gave evidence that his then solicitor gave him the Ms Raymond article to read. He also gave evidence which, at its highest, was to the effect that he had been 'brought to this information by a range of people ... who've actually read the information prior to me, including my lawyer'.

373 Ms Paul, who organised an exhibition at the gallery in late 2009, and who thereafter continued a professional relationship with Cripps at Ruby's Music Room, said that she had read the Ms Raymond article, but could not say when. She had been directed to the Vakras articles by Cripps, and after that, she searched the internet periodically, 'Googling' Cripps' name.

374 Ms Paul also gave this evidence, with respect to 'these articles':

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 have come across these articles as well.

375 Ms Czarski, who was a friend of Cripps from 2009, who had 'dated' him for about 1½ years, and who had thereafter maintained contact with him, said that she had seen the Ms Raymond article. She had read the Vakras articles, having been directed to them by Cripps.

376 Mr Sedergreen, who was associated with the gallery from 2008 until it closed, when asked if he had read any of the articles, said that he had seen the articles, but had not read them. He was 'aware' of them. This evidence, obviously, lacked precision.

377 Ms Curro, who had conducted concerts at the gallery in 2011 or 2012, and later at Ruby's Music Room, gave evidence that a work colleague had stumbled across either the first or second Vakras article, and had brought it to her attention. She had read it. Her evidence did not relate to the Ms Raymond article.

378 Ms Biggs-Kocaj, who worked at the gallery between 2009 and 2010, gave evidence that, by 2010, she thought she had seen the web pages the subject of the proceeding once.

379 Ms Kim 'stumbled over' the Vakras website and information which she provided was posted by Ms Raymond in an updated version of the Ms Raymond article. It is not apparent that she accessed the Ms Raymond article.

380 Ms Raymond's website was also updated so as to refer to information provided by Ms Waddelton and Mr Mickelson. But the evidence did not reveal whether either of them had accessed the Ms Raymond article.

381 Through Cripps, a submission made by Mr Tortoni, in a planning application referable to Ruby's Music Room, was put into evidence. Cripps said that Mr Tortoni had made him 'aware' that he was 'aware' of the Vakras and Ms Raymond articles. Whether that was because Mr Tortoni had downloaded them, or because he learnt of them by the grapevine effect, was not made clear.

382 In all, then, Cripps, Ms Paul and Ms Czarski gave direct evidence of accessing the Ms Raymond article on the internet. That is, they gave evidence of publication as that concept is understood in defamation law.[129] There was imprecise evidence that the Ms Raymond article may have been accessed by Mr Sedergreen, Ms Biggs-Kocaj, and Mr Tortoni. All of those persons had a close connection with Cripps and the gallery; or, in the case of Mr Tortoni, with Cripps and Ruby's Music Room.

383 Other than that, there was the evidence of Cripps that, at its highest, there was a 'range of people' who had 'actually read the information' and had brought it to him; and the evidence of Ms Paul that friends of hers, searching to see what had been on at the gallery, had 'come across these articles', evidence which was, in each instance, imprecise but which was capable of including the Ms Raymond article. The number of persons comprised in the 'range of people' (probably the same group as the 'good handful of people' to whom Cripps referred in his evidence), and the number comprised in Ms Paul's 'friends of mine', were never identified.

384 As to the grapevine effect, so far as it could relate to the effect of the Ms Raymond article, the evidence was scant. The discussion amongst volunteers to which Cripps referred in his evidence related to the first Vakras article. Cripps' evidence that a number of people had told him that there must be some truth in the articles was indiscriminate as to which articles were thereby identified; and, of course, there was truth in parts of the first Vakras and the Ms Raymond articles. Cripps' evidence that he lost business because of the articles, had it been expanded upon, could have constituted evidence of the grapevine effect at work, but loss of business, assuming it occurred, was not necessarily the outcome of the articles having been downloaded as distinct from unfavourable things having been said by one or more of the persons who had adverse experiences in their dealings with the gallery and Cripps. Cripps' evidence, also, that a particular volunteer said that she thought the less of him did not sit with an answer to interrogatory which he had earlier sworn. But in any event, Cripps' evidence in that connection was referable to the first Vakras article.

385 It is possible that the fact that Mr Mickelson and Ms Waddelton communicated with Ms Raymond was an instance of the grapevine effect at work. Alternatively, it may simply have reflected discussion between members of the arts community in Melbourne.

386 Finally, we note that Ms Czarski gave evidence that she had not heard anyone refer to the articles except for Cripps; and that the plaintiffs adduced the evidence of Nicholas Murray, who had exhibited at the gallery, and of a long-time friend of Cripps, Matthew Piscioneri, neither of whom gave any evidence of a grapevine effect.

387 We readily accept, of course, the possibility that persons other than those identified in evidence either accessed Ms Raymond's website directly or stumbled upon the site after searching Cripps' name or the name of the gallery. The ubiquity and ease of access of the worldwide web has been referred to often enough in the context of publication of defamatory matter. Even so, we cannot accept the judge's finding that 'it was highly likely that in the period from 1 April 2010 until now, a large number of people have read the article'. Our observations at [345] above are in point.

388 We next accept, of course, if a person accessed the Ms Raymond article on the web, that there was a real prospect that the grapevine effect would take hold. But the evidence of that effect in fact operating was scant, even in the case of persons who knew Cripps directly, or were one step removed from him.[130] Since we cannot accept that the article was published to a large number of people, it follows that his Honour's conclusion that 'there has been a considerable grapevine effect since 1 April 2010' - his Honour was speaking of the effect of the articles generally - could not be accepted without modification to reflect both a lesser extent of likely publication and the need to focus only upon the effect deriving from the Ms Raymond article.[131]

389 Considering all the circumstances which we have mentioned, we return to the question: does the quantum of the award bespeak error? In that connection, it would be wrong for us to consider what amount we would have awarded and then see how far above or below that figure the sum awarded was. It is not for us simply to substitute for an amount awarded a sum which we would have awarded. Not without doubt, we have concluded that the sum awarded for ordinary compensatory damages was not manifestly excessive.

390 We turn to the challenge to the award of aggravated damages.

391 By his statement of claim, Cripps relied, in pursuing his claim for aggravated damages against Ms Raymond, upon - (1) her failure to make a reasonable attempt to ascertain his side of the story and set it out in the article, (2) her failure to take any steps to verify the accuracy of her article so far as it concerned him, (3) an allegation that her motivation in publishing the article was to smear him and to maximise the damage to his reputation, (4) the fact that she and Vakras had made continuing and extensive publication of matter which was calculated to cause him further hurt him, (5) a contention that his harm had been increased because he had been put under 'constant electronic surveillance' by Ms Raymond and Vakras, and (6) upon a contention that her behaviour before and since publication of the article had been improper and unjustified. In this last connection, she had not apologised and she had continued to have the article accessible on the web.

392 There is no ground of appeal which asserts that it was not open to the judge to award Cripps aggravated damages against Ms Raymond. In any event, it is quite clear that all but one of the circumstances upon which Cripps relied as aggravating conduct was in fact established.[132] Further, the judge found that such conduct did in fact impact adversely upon Cripps. So to conclude was almost inevitable. Those circumstances, and the finding of harm, well justified an award of aggravated damages.

The gist of the challenge to the award of aggravated damages

393 There was no contention that the amount of aggravated damages which the judge awarded Cripps against Ms Raymond was manifestly excessive. Had such a contention been raised, we would have rejected it.

394 This leaves, in substance, the matter raised by ground 22 - that is, that in assessing aggravated damages, the learned trial judge relied on punitive matters, contrary to s 37 of the Act. At the heart of that ground are these statements in the judge's reasons:

An amount sufficiently high to deter the defendant from continuing to defame the plaintiff can be a proper element of aggravated damages.[133]

The amount must be sufficiently high to deter Mr Vakras from continuing to defame Mr Cripps.[134]

The matters discussed ... warrant an award of aggravated damages. While the amount must be sufficiently high to deter Ms Raymond from continuing to defame Mr Cripps, it must be moderated having regard to s 38(1)(d) of the Act.[135]

It thus appears, in a way which is not quite clear, that his Honour had regard to deterrence as a matter bearing upon the quantum of aggravated damages.

395 Ms Raymond's counsel submitted that deterrence is pertinent to exemplary damages, but not to aggravated damages. He further submitted that the passage in the judgment of McHugh J in Carson v John Fairfax& Sons Ltd[136] which the judge cited at Reasons [573] was a reference to a dissenting judgment; and that in any event, the decision in Carson preceded commencement of the Act.

396 It was submitted by counsel for Cripps that whilst it might be accepted that the line between compensation and punishment, when considering deterrence, is elusive, the amount which the judge awarded showed clearly that the judge did not fall into error. There was a wide range of damages that might have been awarded, and the award made did not stand outside that range.

397 The concept of an amount of damages being fixed so as to have a deterrent effect upon the defendant was well-recognised when exemplary damages could be awarded in Australia in a defamation proceeding. But, by operation of s 37 of the Act, exemplary damages can no longer be awarded in such a proceeding.

398 The passage in the judgment of McHugh J in Carson which the judge cited supported the view that, in some cases, aggravated compensatory damages 'which included an amount for punishment or deterrence' were damages within s 46 of the Defamation Act 1974 (NSW). It is true, as counsel for Ms Raymond submitted, that McHugh J dissented in the result in Carson. It is also true, so far as it goes, that the decision in Carson preceded commencement of the Act. On the other hand, by s 42(3)(a) of the Defamation Act 1974 (NSW), an award of exemplary damages was precluded.

399 The more significant point, as we see it, is that Carson did not raise the question whether an award of aggravated damages could include an element of deterrence. The question before the High Court was simply whether the New South Wales Court of Appeal had rightly set aside a jury verdict in favour of Mr Carson. So far as aggravated damages had been any part of the amount awarded, Mr Carson had relied upon a number of matters, none of which had addressed deterrence. In the event, what his Honour said, which was not replicated by any other member of the Court because it did not need to be, was obiter dicta.

400 No other authorities were cited by counsel touching upon the question.[137] The matter was scarcely debated at all. It would be undesirable, in those circumstances, to resolve upon an answer except if it be necessary to do so. Fortunately, there is no such necessity. If we were to assume that the judge's approach was incorrect, for which reason the award of aggravated damages should be set aside, in all the circumstances we would in any event re-assess the appropriate amount of aggravated damages to be $20,000.

401 The artists (we will call them 'the plaintiffs' in connection with this claim) sued Cripps and Redleg (we will call them 'the defendants') for breach of contract in respect of the hiring agreement ('the agreement') to which we referred to [5]-[6] above. That agreement was entered into between the plaintiffs and Redleg in or about January and May 2009.

402 By their amended statement of claim, the plaintiffs pleaded, inter alia, that:

(a) there were implied terms of the agreement that Redleg and the plaintiffs owed each other a duty of good faith, or alternatively a duty of co-operation, in the performance of the agreement;[138]

(b) in the period June to August 2009, Redleg did not act in good faith, or alternatively did not co-operate with the plaintiffs, in the performance of the agreement; and

(c) by reason of Redleg's breaches of the agreement, including failing to act in good faith, or alternatively co-operating with the plaintiffs, in the performance of the agreement, the plaintiffs suffered loss and damage in the sum of $13,448.80.

403 The plaintiffs particularised their loss in the way noted at [121] above.[139]

404 The plaintiffs particularised numerous alleged breaches of the agreement. They included the following:

(1) Conduct of Cripps in berating Ms Raymond on 5 June 2009;

(2) Conduct of Cripps in aggressively stating on 18 June 2009 that Vakras' exhibition was racist and insensitive, and in making other offensive remarks;

(3) Cripps acting in an aggressive and intimidating manner towards Vakras on 24 June 2009.

405 By their statement of claim, the plaintiffs pleaded that the loss and damage was caused 'by reason of one or more of the breaches alleged' - that is, one or more of the numerous breaches which they alleged.

406 By their defence,[140] the defendants admitted the agreement and admitted that it contained the implied terms alleged,[141] but denied that such terms were breached and denied that the plaintiffs had suffered loss and damage.

407 Although, on its face, the defendants had admitted that the agreement contained the implied terms which the plaintiffs had pleaded, the judge found that no such terms were to be implied into the agreement; and in this Court the defendants submitted that his Honour's conclusion was correct. It was not suggested for the plaintiffs that the defendants were precluded from so submitting. It is all very puzzling, but apparently the trial was conducted on a basis which differed from the pleaded case.

408 The judge also found, we note, that even if one or both of the pleaded terms was to be implied into the agreement, there had been no breaching conduct.

409 The plaintiffs relied, on the hearing of their appeal, upon two grounds:[142]

1. The learned trial judge erred in law in finding that the Hiring Agreement did not contain implied terms to act in good faith or to cooperate in the performance of the Hiring Agreement (Reasons [240] and footnote 66).

2. The learned trial judge erred in finding that there was nothing in the conduct of the first respondent on behalf of the second respondent on 5, 18 or 24 June 2009 which would have breached the duty of good faith or the duty of cooperation had those duties been implied into the Hiring Agreement

410 Thus, as to breach, the Appellants relied solely upon the conduct of Cripps on 5, 18 or 24 June 2009. Hence our identification of only three particulars of breach at [404] above.

The [plaintiffs] allege that Redleg committed the following breaches of the Hiring Agreement:

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

...

(ii) Mr Cripps berating Ms Raymond on 5 June 2009;

(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.[143]

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.

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.[144] 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.

In the present case, the tests in BP [Refinery] are not satisfied, primarily because the alleged implied terms would be inconsistent with cl 11.c of the Hiring Agreement. 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. However, even if such obligations were to be implied, there would not have been any basis for a finding that Redleg breached them.[145]

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. There was nothing in the conduct of Mr Cripps on 5, 18 or 24 June 2009 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.[146]

414 The judge then concluded, as we have earlier noted, that the defendants would not have breached the implied terms had they been established.[147] He held that the only established breaches of contract were in respect of Redleg withholding payment of $450 to Vakras over a period of 23 days, and withholding $500 refundable to Vakras and Ms Raymond between 2 July 2009 and 12 August 2009.[148] So it was that he assessed damages payable to the plaintiffs at $5.98. He further concluded that it was not necessary for him to analyse the recoverability of the specified items of damage or to assess that value of the plaintiffs' asserted claim for loss of opportunity to sell their art work.[149]

415 Notwithstanding the ambit of grounds 1 and 2, in written submissions plaintiffs' counsel argued only for the implication of a term to act in good faith. He accepted that an obligation of good faith is not implied indiscriminately in all commercial contracts.[150] He accepted also that in cases of a written agreement entered into between commercial entities of equivalent bargaining power, such a condition will ordinarily only arise if it meets the test laid down in BP Refinery.[151]

416 Counsel submitted, nonetheless, that in this case implication of a term of good faith was reasonable and equitable. It was necessary to give business efficacy to the agreement, was so obvious that 'it goes without saying',[152] was capable of clear expression and did not contradict any of the express terms of the agreement.

417 Counsel further submitted that, contrary to the judge's conclusion an implied term of good faith was not inconsistent with cl 11.c of the Hiring Agreement. Clause 11.c said nothing about implied terms. For the pleaded implied term to be excluded by an entire contract clause, the language of the entire contract clause must be clear in that regard.

418 Counsel finally submitted that the judge's findings that there was nothing in the conduct of Mr Cripps on 5, 18 or 24 June 2009 which would have breached the duty of good faith had such a duty been implied into the agreement were dependent upon his Honour's credit findings, which were impugned by his clients. He sought that the appeal be allowed, and that there be a new trial of the contract proceeding.

419 Counsel for the defendants submitted that his Honour was correct not to imply a term of good faith into the agreement. In any event, his Honour's finding that the first respondent did nothing that would have breached such a term rendered the question moot.

420 Clause 11 of the agreement included the following 'General' provisions:

...

c. [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.

...

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

421 In considering the merits of the plaintiff's assertion that a term should be implied into the agreement, the judge correctly identified the principles applicable to the identification of implied terms and appropriately cited the relevant tests in BP Refinery.[153] He then said that he was not satisfied that the implied terms which were asserted met all of the requirements for implication identified in BP Refinery[154] because such implied terms were inconsistent with the express terms of cl 11 of the agreement. He was also of the view that the asserted implied terms did not in any event satisfy the principles enunciated in the BP Refinery[155] case.

422 We respectfully disagree with his Honour's conclusion that the implication of a good faith term was inconsistent with the express terms of cl 11.c of the agreement. That sub-clause was in the nature of an entire agreement clause. It was reflective of the parties' intent to exclude the contractual effect of previous understandings, agreements, representations or warranties and to render them of no contractual effect in relation to the agreement. The language of the clause went no further. It did not seek to address terms which might properly be implied into the agreement. In our view, the sub-clause should not be understood as in any way modifying or limiting the implication of terms arising on a proper construction of the terms of the agreement itself. Absent some precise exclusion to that effect, the implication of a term is analogous to the discovery of a previously unidentified term. That is, the implication of a term is as much a part of a contract as any term couched in express words.[156]

423 On the other hand, the express terms of the agreement dealt comprehensively with all the fundamental rights and obligations of the parties thereto. Accordingly, we are not persuaded that a good faith term should have been implied. Such a suggested implied term was not necessary. Nor did its inclusion '[go] without saying'.[157] We agree with the judge that a court is ordinarily reluctant to imply an obligation of good faith that extends beyond a contracting party's duty to act reasonably in the performance and enforcement of a contract.

424 It is unnecessary for us, in those circumstances, to go any further in order to conclude that the appeal should be dismissed. In particular, it is unnecessary, and it would be undesirable,[158] to enter upon an analysis of the judge's credit findings adverse to the plaintiffs. Likewise, it is unnecessary to consider whether the breaches relied upon by the plaintiffs in this Court could possibly be causative of the plaintiffs' alleged loss and damage.

425 Vakras' appeal against the judgment in favour of Cripps on the first and second Vakras articles should be allowed. Cripps' cause of action in respect of the first Vakras article should be remitted for retrial on the 'profit' and 'Hitler' imputations and, if the plaintiff is permitted to replead, on the 'disgraceful' imputation. Cripps' cause of action in respect of the second Vakras article should be remitted for retrial on the 'intimidating' imputation and, if Cripps is permitted to replead, on the 'harassment' imputation. Ms Raymond's appeal against judgment in favour of Redleg should be allowed. That judgment should be set aside and in lieu thereof, there should be judgment in favour of Ms Raymond. Save as to costs, Vakras' appeal against judgment in favour of Redleg, Ms Raymond's appeal against judgment in favour of Cripps, and the appeal by Vakras and Ms Raymond against judgment in the contract proceeding should be dismissed. The costs orders which the judge made in the two proceedings should be set aside. We would hear the parties as to what orders should be made with respect to the costs below, and of the appeals.

Guildford Lane Gallery is run by the toxic Robert Cripps. AVOID THIS GALLERY ASSIDUOUSLY!

Had I been aware of him, or had information on him been available prior to our agreeing to exhibit at Guildford Lane Gallery I (and my co-exhibitor, Lee-Anne Raymond) would NEVER have dealt with him. This page expands on criticism already made about the experience of exhibiting at his gallery [exhibitions].

There are several words with which I can describe Cripps: poisonous, vile, repellent, malignant, racist, liar, bellicose, bully, stupid.

Much money was spent by myself and my co-exhibitor Lee-Anne Raymond to make this show a success. This has turned out to be a waste of money. The owner, Robert 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 - after we sought legal advice]. Payment of monies owed was only secured when we were forced into 'agreeing' to terms which were never in the original contractual agreement with Cripps, but which he demanded we agree to. He gained 'agreement' by placing us under financial duress. That he procured 'agreement' by duress renders this 'agreement' legally voidable.

During the course of the exhibition he, by his actions, circumvented our capacity to promote our work. Cripps turned the exhibition into an expensive debacle for us, but he made a profit on it.

Below: a photograph of some of the works exhibited at the June-July exhibition in 2009. The exhibition was of never-before exhibited works by myself and Lee-Anne Raymond. A fully illustrated catalogue was published to accompany the exhibition. (the catalogue can be purchased here). Essays which are featured in the catalogue were pinned alongside our artwork in the exhibition.

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].

Some of my essays juxtapose quotes from both the Old and New Testaments alongside Hitler's Mein Kampf, to show that Hitler's racial exterminations were Biblical (religious). [An assessment of Hitler's Christianity]

"...I believe that I am acting in accordance with the will of the Almighty Creator: by defending myself against the Jew, I am fighting for the work of the Lord." Mein Kampf p.60, Manheim translation.

Hitler's enmity of Jews is based on 1 Thessalonians 2.13-16 from the New Testament [details].

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. My quotes form the Koran show unambiguously that these acts are crimes committed on behalf of Islam. These quotes mean:

- that the Jews killed in Israel are victims of Islamic intolerance;

- that the Jews have not brought the situation upon themselves by their actions to which "Palestinians" are reacting. The Koran predates the existence of the modern state of Israel by over 1300 years;

- that his hatred of Jews is exposed for the outright racism that it is.

Cripps, who does not know the difference between opinion and fact, placed disclaimers everywhere in the exhibition.

"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."

The quotes from the Koran though are NOT an opinion. What quoting from the Koran achieved was the exposure of Cripps for what he is: a racist.

Unfortunately, some of the photographs are not in focus (limited depth of field). 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.

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. In an email received 26 June 2009, Cripps wrote:

"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"

The above email was Cripps' response to our email in which we wrote to object about his conduct while we had been photographing the exhibition on 25 June 2009. 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". With regard to the above Cripps email, no discussion about the themes of my art occurred with anyone from the gallery other than with Cripps himself, for anyone other than Cripps to feel "uncomfortable". Cripps' conduct throughout was thoroughly disgraceful.

Since the staff and volunteers at Cripps' Guildford Lane Gallery acquiesce to, and agree with, his hatred of Jews and are in disagreement with me, then it would be a disservice to them if they were to remain unacknowledged and anonymous. Those who I know by name are: Yollande Pickett, Sarah Webb, Melanie Trojkovic, Stacy Jewell, and a Danielle all ethically deficient; they were carbon-copied into emailed correspondences and were aware of the situation.

It is my stance that an action or inaction should never the without consequence.

Like the Nazis before her Yollande Pickett might in the future claim to have been following orders.

A number of the above mentioned "volunteers" have commenced an email campaign to have their names removed from this page using the threat of legal action. Cripps made numerous misrepresentations of my character, including the charge of racism. He claimed that his actions were undertaken on behalf of his volunteers. His volunteers constituted "evidence". The matters discussed on this page are based on emails, specifically the email with the subject title "a misrepresentation of our art" of 25/6/2009. Trojkovic, Webb, and Jewell, were CCd into these emails. They were also CCd into the email response by Cripps, of the 26/6/2009, in which he made a number of new assertions for which he used as support ('evidence'), his volunteers. Cripps' email is written on behalf of the gallery (which includes the volunteers who he CCd into it). My rebuttal to Cripps et al with the subject "Addenda to: a misrepresentation of our art + rebuttal", was sent on 26/6/2009. The list of volunteers with whom we would be dealing during our exhibition is from an email from Pickett dated 30/5/2009. To my disgust none of the volunteers had the ethical integrity to distance themselves from the assertions made in their name by Cripps. Throughout they remained ethically deficient by their silence, and continue to be ethically deficient. They were unconcerned with any of the claims made on their behalf by Cripps (especially Cripps' email response dated 26/6/2009) as long, as it has become evident, they remained anonymous. If I had any misgivings about including any of them on this page I do not do so now.

(Their absurd shared belief is that permission is required to mention them by name, and that a mention without such permission constitutes "defamation"!)

As the course of events transpired during the course of the exhibition at this odious gallery, I often wished that a page such as this had existed on the internet. I never would have wasted the large amount of time, money, effort, and frustration by exhibiting in it. This page is intended to remedy such an absence.

Only one of the volunteers (whose name has been removed) ever distanced themselves from the representations made on their behalf by Cripps: "Robert Cripps does not speak for me...Any course of action or accusations Robert Cripps made against you on my apparent behalf as a volunteer at the Gallery came without my knowledge or consent."

Of the original list of names that appeared, two were not included in the email exchanges I refer to. The list of volunteers is incomplete; and any names omitted are a consequence of my not knowing them. Of the 3-4 volunteers with whom I exchanged any words at all, some exchanges were limited to merely greeting them with "hi".

If then, Cripps' representations on behalf of his volunteers were not made on behalf of volunteers with whom I did exchange any words (even if this exchange was limited to greeting them), it must be assumed that those he claimed I made, "very uncomfortable" are those with whom I exchanged no words, never saw, and never met. To reiterate, Cripps' disclaimers were written on the behalf of volunteers for reasons explained in (but not limited to) his email. And if I could list them all, I would.

URL: http://www.visualarts.net.au/linksservices/guildfordlanegallery

Bodies like the National Association for the Visual Arts (NAVA), of which I was once a member, and which is itself funded by the Australian Federal Government, the Australia Council, etc, is intended to support artists and the arts community. However, NAVA lends this disreputable gallery credibility. NAVA is doing artists a disservice.

Other bodies that lend Cripps' gallery credibility are Artabase.

http://artabase.net/exhibition/877-guildford-lane-gallery-volunteer-program

The Artabase site hosts Cripps' "volunteer program". These listings are misleading!

[ To read the review of this exhibition by my co-exhibitor, Lee-Anne Raymond ]

There is a bit of a risk in publishing a page such as this. The website is an electronic publication, a promotional exercise. To write about any exhibition would, with such an understanding, be about representing the exhibition in the best possible light. As such I should be writing of this exhibition being a success, about the number of people who turned up at the opening, referring to all possible positives. To write about an exhibition, and describe it in the way that I have here makes for something that detracts from the intention of the website as a promotional tool for my artwork. For the purposes of promoting my art I would have been better to never mention this exhibition ever, at all.

Cripps has become aware of this page - not that it was ever kept secret. (I suspect that he found out about it as a consequence of his latest on-line dating debacle). He 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 ture character. Today I received a summons to the Supreme Court of (the Australian state of) Victoria for June of this year (2011). 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.

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 have both received from others who suffered in their dealings with Cripps.

"Just stumbled upon your website and read the review about Guildford Lange (sic) [Lane] Gallery.

I am a recent exhibiter in GLG and I'm just having the most difficult time in my professional career.

I exhibited a show which is about Human rights... and the gallery owner has done an 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."

It was after the receipt of this email that my co-exhibitor Lee-Anne Raymond, (whose page can be found here ) was emboldened to expand on her own description of this disastrous exhibition.

"A man's ethical behaviour should be based effectually on sympathy, education, and social ties and needs;

Robert Cripps of Guildford Lane Gallery is at it again, and again, and again

Another artist reports to me they were humiliated and embarrassed by Cripps's behaviour at their opening and throughout the duration of the exhibition. (What I struggle to understand is how he is still permitted to engage volunteers and operate as the director of a gallery at all.)

This is a pattern of behaviour, artists be warned and beware.

A life model reported to me how he found Cripps' "...treatment was unbearable." This person had been wrongly paid and dared to question Cripps and was victimised for it.

An artist reports her reputation and exhibition were "destroyed" by Robert Cripps and his bizarre unchecked antics.

When will any official arts reviewer, so called artists support organisation or arts writer/publisher have the guts to do anything about him? Arts Law must have volumes dedicated to complaints just about Cripps. Like Demetrios Vakras and I you will get nothing but useless mutterings "how awful", well that isn't good enough. In our case a review supporting the show and its purpose or even critiquing it properly would have been the expectation. But no, what we received was much less than nothing, we were left to hang. This will happen to you too.

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'll 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 and then receive no support or back up. Say NO more to providing Cripps with the oxygen to continue running this gallery. Say NO to Guildford Lane Gallery and go elsewhere. 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 of Cripps are well aware of his reputation, he is, as reported to me, "universally despised". If this isn't enough read on. If you still think you won't experience this sort of treatment it doesn't matter, he will treat others this way and your support just keeps him in business to do so.

In my own experience...let's see, at my exhibition what did he do that would suggest he is a creep and his motivations suspect? My paintings display nudes, generally, though not always, from the back. He embarrassed me, and the entire concept of the show, by asking women at the opening, "is that your lovely bottom?" What did he do to display he is a bully? 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. He was incensed that we wouldn't back down, that we would dare to stand up to him and for our character and our exhibition.

Anyone who works or volunteers for him who doesn't support this account of the kind of person he is, is a coward and an enabler of a bully and a lecher. 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. All who were there at the time know you did nothing. How many times has it been that you did nothing? I'm sending out the call to all "his women", this is what he calls you, (he is only interested in young inexperienced women and men too weak to stick up for themselves it seems) to come forward and report his behaviour, equip people with the knowledge to avoid him before they come into his employ or anywhere near paying him money for art space rental.

How many people must he dishonour and ill treat with his shameful antics? People with any notion of self respect simply leave his gallery, but no one ever does anything about it to prevent the next person making the same mistake to 'work' for him. You are meaningless to him and he has no respect for you; he is a narcissist without scruples who stands not for art but for himself and the appeasement of his own appetites. I notice that even more and more associates are included into the Guildford Lane Gallery venue Melbourne Life Drawing and Utopian Slumps to name two. How is this arrangement going for you?

Contact Lee-Anne to post your experience

from personal experience ~ a review of guildford lane gallery

Guildford Lane Gallery, level 2, displaying one aspect of the exhibition "Humanist Transhumanist - An Umbrella and Two Surrealists".

If an artist or interested person were to ask me, how did your show go?...what was the gallery like?...did you have a good experience? I would have to say in order; terribly; an impressive space to be avoided at all costs and, no, it was the worst experience and one I could never have imagined. Why?

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 exhibition. Nevertheless he demanded it be removed. We left that evening, without resolution to this extremely insulting accusation and with Cripps claiming later to anyone who would listen to his bombast that he was 'attacked' by us. We subsequently returned to the exhibit some days later to photograph the installation. (See the above photograph which is one of the few good ones and one of the few we were able to take) 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 was racist. He had installed several "disclaimer" notices within the exhibition space (we'd hired the entire 2nd floor) and at the first ramp of the stair way leading up to the space a huge "WARNING" sign was posted.

When a gallery of its own volition does this, it says more about the gallery direction than anything else but damage is also done. It was effective enough to cast a pall over the content and therefore overall reception of the show, which was up for three weeks at the mercy of Cripps' vile interpretations. It was very effective, a complete sabotage, 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. If it were about the art, the gallery Director would of course already know that Surrealism is a protestant movement, one born from a fiercely anti establishment, anti-religious, ant-discrimination and anti-violence background. With particular emphasis on anti-violence purportedly performed in the name of religion.

What of the content? This exhibition was well announced to the Director and his staff, well documented in our formerly welcomed application to be a return to Surrealism's roots, an unapologetic announcing of Surrealism's origins and traditional temperament. No saccharine coated pop-version of surrealism by designers. This means religion is critiqued. Cripps though only cared about criticisms of Islam, not Christianity, Hinduism, Zoroastrianism or Judaism. The content, it was claimed, was racist towards Islam alone. The critiques on Islam were backed up by quotation from the Koran with passages extolling violent action and misogyny. Quotations were referenced to emphasise the problems and significant contradictions between the text and claims made about this religion. 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.

I wonder how many turned around and left the space when coming upon the disclaimers, or how many were treated to a special audience by the director. I can't know this for sure and can only reasonably speculate of course but it stands to reason. To add further insult we had to fight for six weeks post the closure of the show to receive our sale money and bond money owed. It wasn't a large amount, but we were not prepared to let the gallery retain it. It was a further self-discrediting act by this gallery in my opinion. So beware artists, take care to research your gallery selections well, I hope this helps you.

If asked by a prospective artist applicant to the gallery for an assessment I would have to say think twice before being lured by Guildford Lane Gallery's undeniably striking interior, it comes at a significant cost.

Review the account of my co-exhibitor Demetrios Vakras here: http:/www.vakras.com/exhibitions.html#exhibition in 2009

The evolution of the figure as muse is discussed in an earlier essay.

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. According to the Koran life is made attractive by god so that we desire not to die as it is intended by god as a test of our resolve to obey his edicts: only those of strong character will willingly forgo this attractive life to die waging war against unbelievers to demonstrate that they are true Muslims;1 the purpose of life is to wage war;2 the only way to guarantee ascent to heaven is to die while killing unbelievers;3 and, according to the Koran, this makes Islam the 'House of Peace' (hence the concomitant claim that Islam is a religion of peace)4 because war occurs only because there are those who are not Muslim against whom war must be waged until these unbelievers are either converted or are forced to pay the poll-tax.5

My painting is a criticism of the secular society which is sacrificing the secular muse.

There are some whom maintain that Koranic-based Islamic law (Sharia) would result in a society not much different from any western society (such as this one) which they believe enforces values which are Christian. Such critics have not read the Bible either. If this society was run on Biblical-based law, I would have been killed as an anti-Christ a long time ago (1 John 2.22, 2 John 7); the Sydney 'gay' parade would instead be a day where homosexuals are dragged to a public place to be stoned to death by people who have travelled from the rest of the country to participate (Leviticus 20.13, Leviticus 20.15, 1 Corinthians 6.9-10); people would be stoned to death for working Sundays (Exodus 31.15); and we would not have anyone of an alternate faith among us (Exodus 22.20, Deuteronomy. 30.17-18, Exodus 23.22-24, etc.). (Though some Christians claim that when their god took human form as the Christ he renounced these laws, this is incorrect. It is clearly stated in Matthew 5.17: 'Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfil them.')

The greatest difference between Muslims and Christians (today) is that a Christian will, though aware of doctrine, actively go against the instructions of doctrine and renounce it. Not even the so-called 'moderate' Muslims renounce any passage of the Koran and even go so far as to deny the existence of such passages. Any Muslim (or someone formerly Muslim) who does openly concede to the existence of such passages such as Ayaan Hirsi Ali and openly renounces them is actively pursued by faithful followers of that religion, as this is considered apostasy and apostasy elicits the death sentence.6

1 'If you have suffered defeat, so did the enemy. We alternate these vicissitudes among mankind so that Allah may know the true believers and choose martyrs from among you ... that He may test the faithful and annihilate the infidels. Did you suppose that you would enter Paradise before Allah has proved the men who fought for him ... ?' (The Imrans) 3.140-142

'He created life and death that He might put you to the proof and find out which of you acquitted himself best.' (Sovereignty) 67.2

2 'fighting is obligatory for you, much as you dislike it. But you may hate a thing although it is good for you ...' (The Cow) 2.216

3 'Believers, why is it that when it is said to you: 'March in the cause of Allah,' you linger slothfully in the land? Are you content with this life in preference to the life to come? Few indeed are the blessings of this life compared to those of the life to come. If you do not fight He will punish you sternly and replace you by other men. Allah has power over all things.' (Repentance) 9:38 'Are you waiting for anything to befall us except victory or martyrdom?' (Repentance) 9:52.

4 'Allah invites you to the House of Peace [Islam]. He guides whom He will to a straight path ... As for those that have earned evil [refusal to accept Islam], evil shall be rewarded with evil. Misery will cover them ... They are the heirs of Hell.' (Jonah) 10.26-27

5 Fight against such of those to whom Scriptures were given as believe neither Allah nor the Last Day, who do not forbid what Allah and His apostle have forbidden, and do not embrace the true faith, until they pay tribute out of hand and are utterly subdued.' (Repentance) 9:29

6 '...those who deny Allah after professing Islam and open their bosoms to unbelief shall incur the wrath of Allah and shall be sternly punished. For such men love the life of this world more than the life to come.' (The Bee) 16.107

The Koranic passages I quote are from the 4 different translations I own: The only two translations worth buying/reading are the one by Dawood (Penguin) and the one by Abdel Haleem (Oxford University Press)

[1] Except in the case of the appeal in the contract proceeding; as to which, see later.

[2] In each instance, his Honour rightly entered judgment for a single sum. But in the 'Other matters' section of the form of judgment he explained that his award included a specified amount in respect of aggravated compensatory damages.

[3] Remembering, in the case of an article carried on the internet, that for the purposes of defamation publication occurs when the article is downloaded: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 606-7 [44] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[4] Cripps v Vakras; Vakras v Cripps [2014] VSC 279, [780] ('Reasons').

[5] Its home page was depicted in the first Vakras article.

[6] Setka v Abbott [2014] VSCA 287 [97]-[102] (Warren CJ and Ashley JA) ('Setka').

[7] A possible argument that the amount of the judgment should be increased if judgment in respect of one or more of the other causes of action was set aside was not pursued.

[8] Advertiser News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206, 219 [76] (Doyle CJ, with whose reasons Vanstone and White JJ agreed). His Honour's observations were made in the context of the common law, but they equally apply in a proceeding brought under the Act.

[9] Hore-Lacy v The Age Co Ltd [2000] VSCA 24; (2000) 1 VR 667, 686 [52] (Charles JA) ('Hore-Lacy').

[10] Polly Peck Holdings plc v Trelford [1986] QB 1000 ('Polly Peck').

[11] [2014] VSCA 287, [55]-[59] (Warren CJ and Ashley JA).

[12] Referring to Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667.

[13] Setka [2014] VSCA 287, [115]-[125].

[16] Setka [2014] VSCA 287.

[17] And, it appears, service on Vakras.

[18] Vakras gave evidence that the removal occurred between 24 and 36 hours later. The judge, who accepted little of the evidence given by Vakras, made a finding at the outer limit of the witness's evidence.

[19] [2014] VSC 279 ('Reasons').

[20] Cripps v Vakras (No 2) [2014] VSC 532 [17].

[22] Ibid [96]-[100] (citations omitted).

[23] [1938] HCA 34; (1938) 60 CLR 336, 360-3.

[25] Ibid [329], [330], [338] (Hitler imputation), [339] (bully imputation), [507] (destruction imputation), [509] (sabotage imputation).

[26] Ibid [416](a) and (c), [526] (b)(i) and (iii).

[30] [2003] HCA 22; (2003) 214 CLR 118, 128-9 [28]-[31].

[31] [2013] VSCA 260.

[32] Ibid [33]-[34] (Redlich and Coghlan JJA and T Forrest AJA) (citations omitted).

[33] There are many cases which have stated general propositions referable to breach of procedural fairness by judges, and many cases which have investigated whether there was a breach in the particular circumstances. See, for instance, Stead v Government Insurance Office of New South Wales [1986] HCA 54; (1986) 161 CLR 141; Smith v Bar Association [1992] HCA 36; (1992) 176 CLR 256; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, [4] (Mason P), [69]-[79] (Ipp JA); Brown v Dato Pty Ltd [2006] WASCA 170, [24]-[25] (McLure JA); Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 494 [3] (Warren CJ), 500-3 [22]-[27] (Chernov JA), 508-12 [42]-[52] (Redlich JA); Adamson v Ede [2009] NSWCA 379, [50]-[73], [110]-[118] (Campbell JA); and Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150, [189]-[202] (Buss JA).

[34] By which we mean true in substance and in fact and/or substantially true under s 25 of the Act.

[42] A combination of particulars (1)(xvi) and (2)(ii) of the particulars subjoined to paragraph 8A of the defence.

[52] See ibid [182](f) (citations in original).

[53] See ibid [23], [25]. Mr Vakras gave evidence that at one previous exhibition he sold between eight and 10 digital prints of his artwork.

[54] See ibid [114]-[118], [233]-[242].

[59] Ibid [338] (citation in original).

[60] Counsel cited Greek Herald v Nikolopoulos (2002) 54 NSWLR 165.

[63] Reasons [327] (citations omitted).

[80] See ibid [233]-[242], [251].

[81] Ibid [507] (citation in original).

[92] There was no 'response to attack' plea in the case of Redleg.

[93] See Reasons [257]-[275], [472]-[478].

[94] See ibid [268]; Trkulja v Yahoo! Inc LLC [2012] VSC 88, [36].

[95] Reasons [401]-[407] (citations in original).

[98] Citing Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

[99] [2004] HCA 5; (2004) 218 CLR 366, 373 [10] (Gleeson CJ, Hayne and Heydon JJ) (citations omitted).

[101] [2003] EWHC 1428.

[102] [2004] HCA 5; (2004) 218 CLR 366.

[103] Alastair Mullis and Richard Parkes (eds), Gatley on Libel and Slander (Sweet & Maxwell, 12th ed, 2013), [620] (citations omitted).

[104] Ibid [620] citing Mutch v Robertson (1981) SLT 217.

[106] Reasons [275](e)], referable to the first Vakras article; and see [478](d) referable to the Ms Raymond article.

[107] Other grounds bearing upon damages are discussed below.

[110] By contrast, ground 21 contends that the amount of aggravated damages awarded against Vakras was manifestly excessive.

[111] (2003) 216 CLR 327, 348-9 [62]-[65].

[112] [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

[114] Compare Reasons [629]-[635].

[121] Ibid [662]-[665] (citations in original).

[125] See ibid [507], [509], [512].

[126] Ibid [748]-[749], [751]-[752], [754], [756] (citations in original).

[127] Some of them are to be regarded as matters in mitigation of damages.

[128] The judge mentioned these matters, either directly or tangentially, at Reasons 756 (a), (b) and (c).

[129] Dow Jones v Gutnick (2002) 210 CLR 575, 606-7 [44] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Compare, in the context of contempt of court, News Digital Media Pty Ltd v Mokbel [2010] VSCA 51; (2010) 30 VR 248, 265 [64]-[65] (Warren CJ and Byrne AJA).

[130] As to the latter, the friends of Ms Paul.

[131] The latter aspect was correctly identified by his Honour at Reasons [755].

[132] Raymond challenged the judge's finding that she had been motivated, in publishing the article, by a desire to 'smear' Cripps.

[133] Reasons [573], citing the judgment of McHugh J in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 105-10 ('Carson').

[136] [1993] HCA 31; (1993) 178 CLR 44.

[137] In England, we note, it has been observed that 'Although deterrence may not be a formal purpose of general damages for defamation, yet where such damages are substantial (as they are in England) deterrence is an effect of them': Alastair Mullis and Richard Parkes (eds), Gatley on Libel and Slander (Sweet & Maxwell, 12th ed, 2013) [332], citing The Gleaner Co Ltd v Abrahams [2003] EWHC 326; [2004] 1 AC 628, 643 [42] (emphasis in original).

[138] These terms were just two of a raft of alleged contractual terms which were pleaded in the one paragraph of the statement of claim, most of them being express terms.

[139] See (v) in the cited passage. That passage relates to the defamation proceeding, but the particularisation is no different. The plaintiffs also raised a loss of opportunity claim.

[142] As well, the plaintiffs challenged the order for costs.

[144] (1977) 180 CLR 266 ('BP Refinery').

[145] Ibid [238]-[240] (citation in original).

[150] Androvitsaneas v Members First Broker Network Pty Ltd [2013] VSCA 212 [108] ('Androvitsaneas'); Specialist Diagnostic Services Pty Ltd v Healthscope Ltd (2012) 41 VR 1 [86] ('Specialist Diagnostic Services'); Tote Tasmania Pty Ltd v Garrott [2008] TASSC 86; (2008) 17 Tas R 320, 236 [16] ('Tote Tasmania'); Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 [2]-[5], [22]-[25], [29] ('Esso Australia Resources').

[151] Androvitsaneas [2013] VSCA 212, [108]; Specialist Diagnostic Services (2012) 41 VR 1 [87].

[152] BP Refinery (1977) 180 CLR 266, 283.

[156] Hart v MacDonald [1910] HCA 13; (1910) 10 CLR 417, 430.

[157] BP Refinery (1977) 180 CLR 266, 283.