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

Court of Appeal (Vic)|2015-07-24|Before: Warren CJ, Ashley JA

For the reasons set out at [307] to [314] above, the Hitler Imputation has caused immense damage to Mr Cripps' personal and professional reputation. Due to the ferocity and wide-ranging attack on Mr Cripps for being a racist and sharing the racist views of Hitler in the First Vakras Article, I have no hesitation in concluding that those reading it who did not know Mr Cripps well would have instantly concluded that he was an odious individual. Accordingly, I find that Mr Cripps' reputation and standing have been grievously injured by the Hitler Imputation.[62]

155 His Honour's failure to correctly identify the gist of the Hitler imputation, the gist as found being outside the pleaded case, and the impact of those matters upon damages would require, even in the absence of any other error, that the appeal against the judgment for damages in favour of Cripps with respect to the two Vakras articles be set aside and a new trial ordered. We would not be prepared to embark upon a new and substantial exercise in fact-finding, particularly as credit issues would require consideration and this Court has not seen or heard the parties or other witnesses.

156 There is, of course, the question whether, as counsel for Vakras submitted, the judge erred in finding that justification was not established because Cripps had not said the things attributed to him by the artists in the conversations of 18 and 24 June 2009. But, in the context of the Hitler imputation, that question need not be decided. The judge on the re-trial should be free to reach his or her own conclusion about it.

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:

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:

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:

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:

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:

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:

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]

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]

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:

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.

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