Vakras v Cripps

The FCC decision 14 The FCC summarily dismissed the whole proceeding on the application of the respondents.

The racial discrimination claim 15 In his application before the FCC, Mr Vakras had claimed that Mr Cripps had posted the disclaimer because Mr Vakras had used Greek script in some of the materials accompanying his artworks and this constituted unlawful racial discrimination. 16 The application (which Mr Vakras had prepared himself) stated that: Discrimination occurred in the provision of goods and services in June 2009. However, at that time this happened, those actions were claimed to have been done for other reasons that bore no rational relationship to what they were claimed to be done for. In March 2014 it was finally admitted that the actions taken against me were because I am Greek by race. … [Mr] Cripps' 2009 claim [as to the reason for posting the disclaimers] was that criticism of religious doctrines and religious values (of Judaism, Christianity, Islam and Zoroastrianism) which was the subject of some of my work could be supportive of Israel, could be anti-Palestinian, and that this was therefore racist. Neither Israel nor Palestine are mentioned, referenced, or alluded to, and the subjects of Israel and/or Palestine had nothing to do with anything written or exhibited for this claim to have any basis. 17 It was alleged that: In March 2014 Cripps admitted he did these acts because my art manifested my being Greek. This Greekness took the form of my use of Greek words to explain Greek myths in which the Greek words used were an intrinsic part of the piece(s). In March 2014, the explanation given for Cripps' actions was: that I, Greek of race, used Greek words! 18 At [16] the FCC noted that: It is … clear that it is Mr Vakras' understanding that the way Mr Cripps ran his case in the Supreme Court suggested that some of the Greek phrases he had used might require translation. That appears to give rise to the assertions that Mr Cripps has now admitted his racist motivation for the events of 2009 (something that is denied by the respondents). 19 The respondents' application for summary dismissal was supported by an affidavit sworn by Mr Cripps. At [21] the FCC referred to the following paragraphs in that affidavit: 8. During the course of the exhibition, [Mr Vakras'] artworks were accompanied by written materials which were in convoluted English language, and also in Greek. I was concerned that the written materials could be interpreted as being anti-Palestinian and racist. An example of such written material was an essay accompanying [Mr Vakras'] artwork entitled "Secular Muse" as contained in [the] catalogue for the art exhibition. Now produced and shown to me and marked with the letters "RRC-1" is a copy of the essay accompanying [Mr Vakras'] artwork entitled "Secular Muse". 9. I requested [Mr Vakras] to put the explanation of the artwork in simple English but disagreement ensued between us. 10. As a result of [Mr Vakras'] reluctance to explain his artwork in simple English after being requested to do so, I had no choice but to put up disclaimers adjacent to the artworks, which was not uncommon, to disassociate myself and my Gallery from the views and opinions expressed by [Mr Vakras'] artworks. Now produced and shown to me and marked with the letters "RRC-2" is a copy of the disclaimer. 20 The FCC held that the racial discrimination claim was issue estopped by reason of Kyrou J's finding at [242] in Cripps v Vakras [2014] VSC 279 (which is extracted at [6] above). The FCC reasoned at [42]: … it is a finding of fact on a matter directly in issue in that proceeding and likely to be directly in issue, if not critical, in this proceeding. This is, in my view, a judicial determination directly involving an issue of fact or law which has disposed of the issue so that it cannot, thereafter, be raised by the same parties (Blair v Curran [1939] HCA 23; (1939) 62 CLR 464)). 21 The FCC also considered that the claim had no prospects of success on the merits in any event. At [37], the FCC set out an extract from one of Mr Vakras' essays accompanying his art work, stating that the text "would meet the description of "convoluted English language"." At [40], the FCC also stated that: Mr Vakras relies strongly on the transcript of the proceeding in the Supreme Court to support his assertion that the actions of Mr Cripps were based upon his Greek ethnicity. The disclaimers that were put up (they are in evidence in various places in the materials) go no further than saying that the views expressed in the artist's materials are not to be taken to be those of the gallery. They say no more or less, in my view, than that. 22 At [43]-[44] the FCC reasoned that: 43. In any event, even on the materials as they stand, the finding by Kyrou J that the putting up of the disclaimers was unobjectionable, would seem to fit entirely comfortably with Mr Cripps' assertion that the disclaimers arose because of possible racism on the part of the written materials. Even accepting that the inclusion of words in Greek added to the difficulties associated with the essays, in my opinion, on the materials taken as a whole, it is simply not more probable than otherwise that Mr Vakras' assertion will be made out. This is because, in even the brief passage from which I have quoted in paragraph 38 above, there is such evident and complete support for Mr Cripps' assertions as to the objectionable or possibly objectionable nature of the essays themselves. 44. Thus, while I have formed the view that the question of the disclaimers has been the subject of an issue estoppel (albeit that Ms Raymond was a party to the prior proceeding and is not a party to this one), the issue between Mr Vakras and the respondents was exactly the same, (and is not touched upon by the addition of Ms Raymond), and the claim, in my view, has no reasonable prospects of success.

The Copyright Act claim and the Consumer Law claim 23 The FCC held that the Copyright Act and Consumer Law claims were Anshun estopped, reasoning that both claims could have been brought by Mr Vakras in the Supreme Court proceedings and that it was unreasonable for Mr Vakras not to have litigated those matters in that proceeding. The FCC concluded at [53]-[57]: 53. In this instance, it is immediately apparent that [Mr Vakras] could have raised both his Copyright Act and Consumer Law claims in the Supreme Court case. Contrary to his submissions, the Supreme Court of Victoria is not prohibited by the terms of either s.195AZA or s.203 of the Copyright Act from hearing Copyright Act matters (see s.135AP of the Copyright Act). 54. It should be noted that pursuant to s.195AZC: "The jurisdiction of the Supreme Court of a State or Territory in a matter arising under this Part is to be exercised by a single Judge of the Court." It is, therefore, clear that Mr Vakras could have brought his Copyright claims into the Supreme Court proceeding. 55. Furthermore, it can be shortly stated that the Consumer Law proceeding was equally capable of being brought. Given the contractual claims brought by the applicant and Ms Raymond in the Supreme Court, which were closely interrelated with the alleged failure of the respondents in this proceeding to fulfil their representations as to what was to occur at the exhibition of paintings, it is immediately apparent that this was a matter that should have been litigated in that proceeding. 56. Putting the matter shortly, I think that it was unreasonable of Mr Vakras not to have brought his Copyright and Consumer Law claims into the proceeding in the Supreme Court. While his partner, Ms Raymond, was, of course, a party to that proceeding, her interests are so clearly wholly aligned with his that her absence from this proceeding is a matter of no moment. 57. The facts that would arise in this proceeding are, to all effects and purposes, identical with those which arose in the Supreme Court proceeding. In all the circumstances, this is a classic case in which it is appropriate to find that the conduct of Mr Vakras in not pursuing these claims was unreasonable in the Anshun sense, and an appropriate case in which the Court should exercise its power to stay the proceedings. 24 The FCC also considered that it was not possible to conclude that Mr Vakras would be able to prosecute the Copyright Act claim successfully on the merits. 25 Finally, the FCC dismissed a separate application by Mr Vakras to join Ms Raymond as an applicant to the proceeding.

Decision 26 Mr Vakras' proposed notice of appeal raises several grounds upon which he seeks to appeal the FCC decision. Mr Vakras also filed extensive submissions in support of his application. It is not necessary to address all the arguments advanced, however, as I have concluded for the reasons that follow that the FCC was correct to hold that Mr Vakras does not have a reasonable prospect of successfully prosecuting the racial discrimination claim and correct to hold that the doctrine of Anshun estoppel operates to preclude him from pursuing the Copyright Act and Consumer Law claims in the FCC.

Principles to apply on a summary judgment application 27 Section 17A of the FCC Act relevantly provides: Summary judgment (1) … (2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, … a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. 28 Section 17A(2) is in identical terms to s 31A(2) of the FCA Act which the High Court considered in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28. In that case, French CJ and Gummow J stated at [25]: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. Although the test for summary judgment does not require the respondents to show that the applicant's claims against them are hopeless or bound to fail, the Court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial. The inquiry is whether there is a "reasonable" prospect of prosecuting the proceeding: Spencer at [60].

The Racial Discrimination Act claim 29 Section 18C(1) of the Racial Discrimination Act 1975 (Cth) provides as follows: (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. 30 Section 18B provides that: Reason for doing an act If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin. 31 In Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389; [2012] FCA 307, Barker J at [46]-[49] usefully summarised the applicable principles in respect of the requirements under s 18C(1)(a) as follows: 46. Objective test: In determining whether s 18C of the [Racial Discrimination] Act has been contravened, it is first necessary to determine whether, for the purposes of para (1)(a), the act complained of is "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people". In deciding this, the Court does not simply rely on how a particular person or group of people subjectively felt about or reacted to the doing of the act complained of. Rather, the Court assesses whether, objectively, the act complained of was "reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate" another person or a group of people: Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]; Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 (Cairns Post) at [12]; Jones v Scully (2002) 120 FCR 243 (Jones v Scully) at [98]-[100]; Eatock v Bolt (2011) 197 FCR 261 (Bolt). 47. In Bolt at [257], Bromberg J noted that the expression "in all the circumstances" needs firmly to be kept in mind. With that I agree. I should add that, in my view, the circumstances in a particular case will depend on the facts found from the evidence. … 49. … The "circumstances" that will readily be relevant are those particular factual circumstances in which a particular act complained of was done. Of course, the reasons why a particular person or group might feel offended, insulted, humiliated or intimidated by a particular act will also be relevant though not determinative of the issue … 32 The phrase "because of" in s 18C(1)(b) requires consideration of the reason or reasons for which the relevant act was done: Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56; [2001] FCA 123 at 60 (FCR) (Full Federal Court). The question that must be asked for the purposes of s 18C(1)(b) is whether the act complained of was done "because of" the race, colour or national or ethnic origin of the other person and requires consideration of the motive of the person. If an act is done for one or more reasons, it is enough that one of the reasons is the race, colour or national or ethnic origin of a person or group of people, whether or not it is the dominant reason or a substantial reason for doing the act: s 18B. 33 In this case, Mr Vakras relied on the following extract from his testimony in cross-examination in the Supreme Court proceedings (at pages 261-2) as evidence that the disclaimers were posted because of his Greek ethnicity: I put it to you that what Mr Cripps said when he spoke to you on the evening of 18 June was related to the labels attached to your pictures and to the essays and he said, the first thing he said was, "The labels are difficult to understand. I've had some of the volunteers tell me that they don't understand what they're about. Some of them aren't in an English alphabet. Can we have simple English explanations as well"? --- The element about it not being in the English alphabet wasn't brought up because of course I would have corrected him on that element because there's no such thing as an English alphabet to begin with. No, that --- Some of it was in Greek wasn't it? --- There's a Greek alphabet and there's a Latin alphabet. There's no such thing as an English alphabet. Well, then you can correct me. Some of it was in the Greek alphabet. You're of Greek background are you? --- That's correct. You speak and write Greek? --- That's correct. But you know of course that a lot of people don't speak or write Greek? --- That's correct. There was no claim ever made to alter any of the wording that I had from the Greek to its Latin rendition ever at any stage. 34 Mr Vakras also relied on the following extract from Mr Cripps' testimony in cross-examination in the Supreme Court proceedings (at page 389 lines 15-22) as evidence: I indicated the, what I was concerned about. There are, there are labels missing from all of the, all of the paintings. There were, there were labels other than the essays and I've yet to see an image with any of the labels attached. And I was actually talking to him about the labels because they were written in, in another, in another - in a different scrip t… 35 In my view, the racial discrimination claim has no reasonable prospects of success as neither transcript extract provides an evidentiary basis for a contention that Mr Vakras' race or ethnicity was a factor in Mr Cripps' decision to make the disclaimer. The first transcript extract was of a line of questions asked of Mr Vakras by counsel for Mr Cripps and it cannot be inferred from that line of questioning that the making of the disclaimer was motivated by racial discrimination merely because it was put to Mr Vakras that he was of Greek background and that some of Mr Vakras' material was in Greek. That line of questioning must be read and understood in context, not in isolation, and, read as a whole, all that was put to Mr Vakras, as was the fact, was that some of his material was in Greek, that Mr Vakras was of Greek background and speaks and writes Greek, but that many people do not speak or write Greek. The proposition that this material evidences that Mr Cripps was motivated to make the disclaimer because Mr Vakras is Greek is fanciful. Similarly, the content of the second transcript extract, far from conveying or imputing that Mr Vakras' race or ethnicity was a reason for the disclaimer, is supportive of Mr Cripps' version of events, which is consistent with the findings made by Kyrou J in Cripps v Vakras [2014] VSC 279 at [242]. 36 Furthermore, the disclaimer did nothing more than disclaim that the views and opinions expressed by Mr Vakras and Ms Raymond in their works were those of the Gallery. It is difficult to see how offence could be established within the terms of s 18C(1) by the disclaimer in those terms in the circumstances where Mr Cripps had asked Mr Vakras to provide a "simple English explanation" of his material because amongst other things, some of it was in Greek, and Mr Vakras had refused. The FCC was correct to hold at [60] that the transcript extracts only go to support the findings that the difficulties with words in Greek were of the same character as difficulties with Mr Vakras' convoluted and difficult-to-understand English. 37 In view of my conclusion, it is unnecessary to consider whether the FCC was correct to hold that the claim was issue estopped by Kyrou J's finding at [242] in Cripps v Vakras [2014] VSC 279.

Are the Copyright Act and Consumer Law claims precluded by the doctrine of Anshun estoppel? 38 An Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 at 602-603 per Gibbs CJ, Mason and Aickin JJ) arises where the matter relied upon as a defence or claim in the second action was so connected to the subject matter of the first action as to have made it unreasonable in the context of that first action for the claim not to have been made, or the issue not to have been raised, in that action: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 89 ALJR 750; [2015] HCA 28 at [22] per French CJ, Bell, Gageler and Keane JJ. Generally speaking, it would be unreasonable not to raise a claim if, having regard to the nature of the plaintiff's claim and its subject matter, that claim properly belonged to the subject of the earlier litigation and which a party, exercising reasonable diligence, could have brought forward at the time of the earlier litigation, thereby enabling the relevant issues to be determined in the one proceeding: Anshun at 602; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242 at [37]. 39 The Anshun principle can apply to cross-claims as well as defences: Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287; [1995] FCA 1299. At 297-298 (FCR), the Full Court said: It is true that, in Tanning Research Laboratories at 346, Brennan and Dawson JJ stated that the Anshun principle will ordinarily not apply to cross-claims. They made an exception of cases where the relief claimed in the second proceedings is inconsistent with the judgment in the first. In making this distinction, their Honours may have had in mind a situation, such as the one before them in that case, where the cross-claim depended on facts remote from those of the principal claim. Questions of substantive degree may be involved; and in contrast to defences, many cross-claims may have little or no connection with the principal claim in the action; there may be no more than an identicality of parties. Where that is so, there may be no policy justification for forcing defendants to litigate their claims as cross-claims rather than as principal claims in separate actions in the forum of their choice. But, where, as here, a defendant's claim is intimately connected with that of the plaintiff, in the sense that each arises, substantially, out of the same matters of fact, there is every reason to require that both be litigated at the one time; thereby minimising costs and avoiding the possibility of inconsistent judgments ... In Ling v Commonwealth (1996) 68 FCR 180; [1996] FCA 1646, Wilcox J referred to Bryant and said at 184: In considering reasonableness, as it seems to me, consideration must be given to all aspects of the case. They include the extent of the overlap between the facts underlying each claim; the greater the overlap, the easier it is to argue that it was unreasonable not to raise the matter in the first case. In the present case there is a substantial overlap between the facts underlying each of the claims. The Copyright Act and Consumer Law claims both arose substantially out of the same matters of fact founding not only Mr Vakras' breach of contract claim against Mr Cripps and Redleg but also founding the defamation proceedings brought by Mr Cripps and Redleg against Mr Vakras and Ms Raymond. 40 The Supreme Court had jurisdiction to hear both causes of action (see s 195AZGH of the Copyright Act; ss 8 and 224 of the Australian Consumer Law and Fair Trading Act 2012 (Vic)) and nothing prevented Mr Vakras from raising the Copyright Act and Consumer Law claims in his Supreme Court proceeding. Parties to litigation are required to bring forward their whole case, and those claims could, and should, have been raised as part of the one proceeding. Given the substantial overlap between the facts underlying each of the claims, it was unreasonable for Mr Vakras not to have brought those causes of action as part of that proceeding. In so concluding I do not think that the fact that an appeal in the copyright matter could only lie to the Federal Court of Australia from a Supreme Court decision (see s 195AZGH(3) of the Copyright Act) made it reasonable for this cause of action to be brought separately. Mr Vakras could have chosen the Federal Court in lieu of the Supreme Court as the forum for his action against Mr Cripps and Redleg. But having proceeded in the Supreme Court, the fact that any appeal on the copyright issue could only be in the Federal Court is not justification for taking separate proceedings for the Copyright Act claim. 41 Mr Vakras asserted that he could not have brought the Consumer Law claim earlier because the claim only became apparent from the cross-examination of Mr Cripps in the Supreme Court case. The claim was said to be that Mr Cripps created the false impression that he was qualified to run an art gallery and was an expert at installation whereas in his testimony in the Supreme Court hearing he admitted that he knew nothing about art history or art theory and simply ran the gallery as a businessman. The Anshun principle is not excluded because a claim may not be known at the time (Henderson v Henderson (1843) 67 ER 313 at 319; Anshun at 598) and the Consumer Law claim was one that Mr Vakras, exercising reasonable diligence, could have become aware of at the time. 42 The FCC was correct to hold that the Anshun principle applies to both claims.

conclusion 43 The FCC was correct to hold that the respondents were entitled to have the proceeding summarily dismissed pursuant to s 17A of the FCC Act and on the basis of Anshun estoppel. Accordingly there would be no utility in giving leave to appeal and the application should therefore be dismissed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.