Simpsons Solicitors

If at first you don’t succeed…

September 14th 2016

In 2014, a Melbourne gallery owner (Robert Cripps) and his company (which ran the Guildford Lane Gallery) were awarded over $450,000 in total damages by the Victorian Supreme Court after two Melbourne artists (Demetrios Vakras and Lee-Anne Raymond) were found to have defamed them. Mr Cripps and his company were also successful in resisting a breach of contract claim that Mr Vakras and Ms Raymond also brought against them. Mr Vakras and Ms Raymond appealed the decision, and were successful on a number of points though not on the contract claim. A number of the defamation issues were remitted for a retrial, though at the time of writing, we are not aware that that trial has yet taken place.

The relevant Victorian decisions are available at:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2014/279.html?stem=0&synonyms=0&query=title(vakras%20) (first instance decision)

and

http://www.austlii.edu.au/au/cases/vic/VSCA/2015/193.html (Victorian Supreme Court appeal decision)

Mr Vakras subsequently brought separate proceedings against Mr Cripps and his company in the Federal Circuit Court for:

  • unlawful discrimination on the grounds of race (brought only against Mr Cripps);
  • an infringement of his moral right of integrity; and
  • breaching the Australian Consumer Law by engaging in misleading and deceptive conduct.

At first instance, the bringing of these new claims were found to be an abuse of process, and Mr Cripps and his company were successful in having the proceedings dismissed as an attempt to re-litigate the defamation case. The Court also found that Mr Vakras was “estopped” from bringing the moral rights and Australian Consumer Law claims as these could (and should) have been brought in the Victorian Supreme Court proceedings. The Court noted that it was unreasonable of Mr Vakras and Ms Raymond not to have done so and to seek instead to bring separate proceedings on those issues in a different court.

The Federal Circuit Court decision is available at: see http://www.austlii.edu.au/au/cases/cth/FCCA/2016/20.html.

Mr Vakras subsequently appealed that decision to the Federal Court, but the Federal Court dismissed the appeal, stating that the Federal Circuit Court was right to have dismissed the new proceedings in the Federal Circuit Court.

The Federal Court’s decision is available at: http://www.austlii.edu.au/au/cases/cth/FCA/2016/955.html.)

The cases underline how important it is to make sure that, if you are bringing proceedings, you think about your claim strategically, and ensure that every available action is fully considered early on. This does not necessarily mean that you should add every conceivable claim to an action, and there are many considerations to be taken into account as to what claims you decide to bring (sometimes shaped by cost, in other cases by factors such as the relative strength of the claims). However, as this case demonstrates, failing to make a claim in an action can preclude you from following up on that claim later, if it essentially relates to the same factual matrix. As the Federal Court stated in its decision: “Parties to litigation are required to bring forward their whole case, and [Mr Vakras’ and Ms Raymond’s]  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.”

If you need advice on copyright or defamation issues or on litigation, contact copyright and litigation lawyer Adam Simpson or Ian McDonald (Special Counsel) at Simpsons Solicitors.