Charles Blackman v Peter Gant
[2010] VSC 229
•1 JUNE 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 9785 of 2008
| CHARLES RAYMOND BLACKMAN AND ORS | Plaintiffs |
| v | |
| PETER GANT AND ANOR | Defendants |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 23, 24, 25, 29, 30 MARCH 2010 | |
DATE OF JUDGMENT: | 1 JUNE 2010 | |
CASE MAY BE CITED AS: | CHARLES BLACKMAN AND ORS v PETER GANT AND ANOR | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 229 | |
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TRADE PRACTICES – Misleading or Deceptive Conduct – Breach of s.9 Fair Trading Act 1999 - Art works found to be forgeries - Representations as to authenticity of art works through valuations given – Representation as to authenticity of an art work by sale of the work - Representations misleading and deceptive in trade or commerce – Relief – Declaration that art works are forgeries
INJUNCTION – Statutory negative injunction restraining sale of the forged art works – s.149 Fair Trading Act 1999 – Plaintiffs not parties to initial representation - Standing to seek injunction – s.80(1) Trade Practices Act 1974 compared – Scope and meaning of “any person”- Whether sufficient nexus between conduct and injunction sought to confer jurisdiction on the court - Whether the court has power to grant – Discretion to grant injunction – Injunction refused as found unnecessary due to alternative relief granted
INJUNCTION – Statutory mandatory injunction for delivery up and destruction of the forged art works – s.149A(3)(f) Fair Trading Act 1999 – Plaintiffs not parties to initial representation - Standing to be granted injunction – s.80(1) Trade Practices Act 1974 compared – Scope and meaning of “any person” – Whether sufficient nexus between conduct and injunction sought to confer jurisdiction on the court - Whether the court has power to grant - Discretion of the court – Injunction granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C. Golvan SC Mr D. Crennan | Heydon & O’Loghlen |
| For the First Defendant | No appearance | No appearance |
| For Second Defendant | Mr A.T. Schlicht | Russell Kennedy |
TABLE OF CONTENTS
BACKGROUND................................................................................................................................. 1
The Artists................................................................................................................................. 2
The Artworks in Issue................................................................................................................ 4
The Conduct of the Defendants................................................................................................. 7
Evidence of Walter Granek...................................................................................................... 11
Refund Paid to Blanche............................................................................................................ 13
The Case of the Plaintiffs......................................................................................................... 13
THE ALLEGED BLACKMAN ARTWORKS............................................................................. 15
Evidence of Geoffrey Smith..................................................................................................... 15
Evidence of Associate Professor Sloggett................................................................................. 18
Evidence of Felicity St John Moore.......................................................................................... 25
THE ALLEGED DICKERSON ARTWORK............................................................................... 27
Evidence of Dickerson.............................................................................................................. 27
Evidence of Stephen Nall......................................................................................................... 29
Evidence of Associate Professor Robyn Sloggett..................................................................... 30
FINDINGS AS TO AUTHENTICITY.......................................................................................... 30
Evidence of Stuart Purves....................................................................................................... 32
Evidence of Stephen Nall......................................................................................................... 33
Evidence of Tom Lowenstein................................................................................................... 33
The Evidence of Dickerson....................................................................................................... 34
FINDINGS AS TO THE IMPACT OF FAKE WORKS ON THE ART MARKET............... 35
FINDING AS TO CONDUCT OF THE SECOND DEFENDANT......................................... 36
RELIEF................................................................................................................................................ 40
Declaration............................................................................................................................... 40
Damages................................................................................................................................... 42
The Provision of an Affidavit................................................................................................... 43
Injunctions............................................................................................................................... 43
Operation of Sections 149 and 149A Fair Trading Act.......................................................... 46
Actual or Alleged (future) Contraventions Relied Upon........................................................ 52
Whether Sufficient Nexus Between Conduct and the Injunction Sought............................... 54
Discretionary Considerations.................................................................................................. 55
CONCLUSION AND ORDERS.................................................................................................... 62
HIS HONOUR:
BACKGROUND
This proceeding has its genesis in transactions involving drawings attributed to two eminent Australian artists, Charles Blackman and Robert Dickerson. The artworks in issue are two works attributed to Blackman, called “Street Scene with Schoolgirl” and “Three Schoolgirls”, and one work attributed to Dickerson, called “Pensive Woman”. The artists say they did not create these works and they are forgeries.
Art forgery involves a radical misrepresentation of the work which is the subject of the conduct. As Denis Dutton put it in his notable essay “Artistic Crimes”:[1]
Against those who insist that an object’s status as forged is irrelevant to its artistic merit, I would hold that when we learn that the kind of achievement an art object involves has been radically misrepresented to us, it is not as though we have learned a new fact about some familiar object of aesthetic attention. To the contrary, insofar as its position as a work of art is concerned, it is no longer the same object.
[1]The British Journal of Aesthetics 19 (1979): 302-341. It was also published in The Forger’s Art: Forgery and the Philosophy of Art, edited by Denis Dutton (University of California Press, 1983), and has been reprinted in numerous course packs and anthologies, including Arguing about Art, ed. Alex Neill and Aaron Ridley (New York: McGraw-Hill, 1994; also 2nd ed. 2001), Aesthetics in Perspective, ed. Kathleen M. Higgins (New York: Oxford University Press, 1996), and Aesthetics: A Reader in Philosophy of the Arts, ed. David Goldblatt and Lee B. Brown (Englewood Cliffs: Prentice Hall, 1997).
The alleged Blackman works were sold to a member of the public in 1999, and the alleged Dickerson work was sold to the same person in 2005.
The central factual question in the proceeding is whether the artworks were genuine works of the artists or were fakes. If they are found to be forgeries, the question is whether a gallery proprietor and art valuer, Peter Gant (“Mr Gant”), who is the Second Defendant, by his conduct contravened s.9 of the Fair Trading Act 1999 (Vic). This section prohibits misleading or deceptive conduct in trade or commerce. The next question is, if there has been a breach or breaches of the Act, are the artists, who are the plaintiffs, able to obtain any and what relief in respect of the contravening conduct?
The Artists
The First Plaintiff is the Australian artist Charles Blackman (“Blackman”) (b.12/8/1928). The Third Plaintiff, Blueco Six Pty Ltd, is the corporate trustee for the Blackman Children’s Trust (the “Trust”). The Trust was established for the benefit of Blackman and his children. It owns a sizeable collection of some 3000 of Blackman’s artistic works. These works are retained for investment purposes. Items from the collection are sold off from time to time to support Blackman , who is now an invalid.
Blackman is generally acknowledged as one of Australia’s most important post-war Modern artists. Indeed, he has been described as ranking among the most important figures in Australian 20th century art.[2] He was a co-founder of the Contemporary Art Society in Melbourne in 1953 and was one of the seven artists who formed the “Antipodeans” group in the 1950’s, along with Dickerson, Arthur Boyd, David Boyd, John Brack, John Perceval and Clifton Pugh. Together they conducted a single exhibition, “Antipodeans”, at the Victorian Artists' Society in August 1959. Their work and ideas contributed to the Antipodean Manifesto in 1959, a document which asserted the importance of figuration and regional influence in art and took a stand against the international trends of the day - such as abstract expressionism.[3] Blackman has exhibited in major national and international galleries throughout his career, including The National Gallery of Victoria, The National Gallery of Australia and the Tate Gallery, London. His works are represented in all Australian State galleries and many regional and university collections. He is included in all major books on Australian Art. His style and themes, most famously his Alice in Wonderland series and his works depicting schoolgirls, are well known to those familiar with Australian Art of the 20th century.[4]
[2]Sotheby’s catalogue for the exhibition “Charles Blackman – Works from the Artist’s Collection”, Melbourne, 28 October 2002, Introduction, Exhibit D5.
[3]The Antipodean Manifesto, was an essay which accompanied the 1959 exhibition's catalogue of works. It was written by art historian Bernard Smith and signed by the exhibiting artists. See: Reports of Associate Professor Robyn Sloggett, on “ ‘Street Scene with Schoolgirl’ - Work Ascribed to Charles Blackman”, March 2010, page 2 and on “ ‘Pensive Woman’ – Work Ascribed to Robert Dickerson”, March 2010, page 2.
[4]Reports of Associate Professor Robyn Sloggett, on “ ‘Street Scene with Schoolgirl’ - Work Ascribed to Charles Blackman”, March 2010, page 2 and on “ ‘Pensive Woman’ – Work Ascribed to Robert Dickerson”, March 2010, page 2.
James Mollison described Blackman’s place in Australian art in the following terms:[5]
A younger contemporary of Arthur Boyd, John Perceval, Joy Hester and the late Sir Sidney Nolan, Blackman emerged during the fifties as an artist whose pictures achieved a rare and extraordinary degree of poetic reality. Blackman’s work attracted to his side some of the most distinguished figures in the art world, including Sir Kenneth Clark.
[5]James Mollison AO, a former director of the National Gallery of Victoria, writing in “Director’s Foreward” to Felicity St John Moore’s “Charles Blackman – Schoolgirls and Angels”, National Gallery of Victoria, 1993 [Exhibit P 42].
Felicity St John Moore described the origins of Blackman’s career in the catalogue she prepared for a retrospective exhibition of paintings and drawings by Blackman held at the National Gallery of Victoria in 1993 called “Schoolgirls and Angels”:[6]
Like all Australian artists of the do-it-yourself fifties generation, Blackman’s art is eclectic. With no access to formal education and no tradition of art behind him, he taught himself by devouring and digesting everything at hand: art books, magazines, prints, illustrations, modern literature and other people’s art. He also travelled around. As the BBC interviewer said when introducing Blackman in 1965, “In the United States artists go to College. In Hungary they go to gaol. In Australia they take to the road”.[7]
[6]Felicity St John Moore “Charles Blackman – Schoolgirls and Angels”, National Gallery of Victoria, 1993, page 1 [Exhibit P 42].
[7]Al Alvarez, BBC “Third Programme” interview, September 1965 (Cited in Felicity St John Moore “Charles Blackman – Schoolgirls and Angels”, National Gallery of Victoria, 1993 at page 1 [Exhibit P 42]).
The Second Plaintif Robert Dickerson (“Dickerson”) (b.28/3/1924) is also a well known Australian artist with a considerable reputation. He was born in Hurstville, Sydney in 1924. He has been practising as an artist in Australia for the last 50 years. His artworks hang in all major national and State galleries and are also featured in many university, corporate and regional gallery collections, including the National Gallery of Australia, the Art Gallery of New South Wales, the National Gallery of Victoria, the Queensland Art gallery, the Art Gallery of South Australia, the Art Gallery of Western Australia, the Tasmanian Museum and Art Gallery, the Australian National University and the University of Melbourne.
Along with Blackman and others, Dickerson was one of the “Antipodeans”.[8] St John Moore quipped of Dickerson’s professional association with Blackman:[9]
… if Bob Dickerson started off by copying Blackman’s pictures, Blackman borrowed the odd thing back when Dickerson then streaked past him.
[8]Report of Associate Professor Robyn Sloggett, on “ ‘Pensive Woman’ – Work Ascribed to Robert Dickerson”, March 2010, page 2.
[9]Felicity St John Moore “Charles Blackman – Schoolgirls and Angels”, National Gallery of Victoria, 1993 at page 6 [Exhibit P 42]).
The Artworks in Issue
The “Street Scene with Schoolgirl” work is a drawing on paper undertaken with friable black media consistent with dry pastel. The work is ascribed to Blackman by the printed word “BLACKMAN” which appears on the lower right. No title is provided with the work and no date is provided or evident. The drawing consists of a naively executed street scene with a schoolgirl in the foreground. The dimensions of the work are 62 x 50cm. Below is an image of the work:
“Street Scene with Schoolgirl”
The “signature” purported to be by the hand of the artist is enlarged below:
The “Three Schoolgirls” work is also a drawing on paper undertaken with friable black media consistent with dry pastel. The work is ascribed to Blackman by the printed letters “CB” which appear on the lower right. No title is provided with the work. A date is provided as “53” which appears on the lower right. The drawing consists of a triptych of three school girls assuming disconnected postures. The dimensions of the work are 32 x 62cm. An image of the work is depicted below:
“Three Schoolgirls”
The enlarged “signature” and date purported to be by the hand of the artist is reproduced below:
The “Pensive Woman” work is a drawing on paper undertaken with friable black media consistent with coloured dry pastel. The work is ascribed to Dickerson by the printed word “DICKERSON” which appears on the lower right. No title is provided with the work and no date is provided or evident. The image consists of the head and shoulders of a woman with a pensive disposition. The dimensions of the work are 75 x 56cm. An image of the work is depicted below:
“Pensive Woman”
The “signature” purported to be by the hand of the artist is enlarged below:
The Conduct of the Defendants
The Second Defendant, Mr Gant is an art dealer trading as “Gallery Irascible – Peter Gant Fine Art”.
Mr Gant originally supplied the three works to the former First Defendant, Helen Stewart (“Ms Stewart”) who is an art dealer trading as Gretz Gallery. Stewart in turn sold the works to a purchaser, a Mr Robert Blanche (“Mr Blanche”). Ms Stewart settled her case in the present proceeding and has since taken no part in it.
Mr Blanche is a director of the Bayside Group of companies which specialises in the provision of staff recruitment services. He is also a director of Baymanta Pty Ltd which is a trustee of the Bayside Drafting Superannuation Trust. This is a superannuation fund established for the benefit of Mr Blanche, his partner and his business partner.
He described himself as having a “very amateurish experience in collecting some bits and pieces of art that were of no significant value”.
During the later half of 1999 Mr Blanche attended the Gretz Gallery where he met the proprietor Ms Stewart. Mr Blanche attended with one of his employees, Malcolm McLean (“Mr McLean”), who recommended looking at artworks for sale at the Gretz Gallery for possible purchase by the superannuation fund. Ms Stewart showed them three works said to be by Blackman, including “Street Scene with Schoolgirl” and “Three Schoolgirls”. Mr Blanche said in his evidence:
We had discussions with regard to our naivety in the art world, … this was the first real venture into something that was of some significant value and we indicated that we would need … help in assisting us to ensure that … we were spending our money wisely.
Mr Blanche and Mr McLean asked Ms Stewart: “How would we know that they were authentic works?” He asked this question because, as he said further: “… we were keen to buy some art that had a great brand but we wanted to know how we were sure they were Blackman paintings, so we asked how can we clarify the authenticity of those”.
Ms Stewart indicated to Mr Blanche and Mr McLean that she had a Commonwealth approved valuer who would “authenticate [the works] and give us a valuation on them prior to us buying them”.
On about 19 October 1999, Mr Gant provided to Ms Stewart a written valuation dated 19 October 1999 (the “19 October 1999 valuation”). The 19 October 1999 valuation was under the name “PETER GANT Commonwealth Approved Valuer 20th Century Australian Art” and addressed “To whom it may concern”. It stated in relation to the two Blackman works:
Charles Blackman
“Three Schoolgirls”
Charcoal
32 x 62cm
Initialled and dated 53 lower right
Value – Nine thousand, five hundred dollars $9,500
Charles Blackman
“Street Scene with Schoolgirl”
Charcoal 62 x 50cm
Signed lower right
Value – Eight thousand dollars $8,000.
These values are based on similar works selling at auction over the past 2 years
Mr Blanche’s company Baymanta Pty Ltd, on behalf of the superannuation fund which it administered, purchased the two works allegedly drawn by Blackman for a total of $13,500.00 ($7,000.00 for the “Three Schoolgirls” and $6,500.00 for “Street Scene with Schoolgirl”). They were hung in the office of the Bayside Group at 7 Bowen Crescent, Melbourne. I am satisfied that in doing so, Baymanta Pty Ltd, through its director Mr Blanche, relied upon the 19 October 1999 valuation provided by Mr Gant to establish the authentivity of the works.
In about mid April 2005 Ms Stewart contacted Mr McLean about a work said to be by Dickerson. Mr Blanche and Mr McLean went to the Gretz Gallery to view the work. They were shown “Pensive Woman”. Mr Blanche said that they both liked the work – as he said “it had some lovely colours in it”. Ms Stewart went on to explain more about Dickerson and advised them that “this would be a really good piece of art to put into our superannuation fund”.
Mr Blanche then invited his business partner, John Wilson (“Mr Wilson”) to visit the Gretz Gallery with him to inspect the work. Mr Blanche said that: “We agreed that we would buy that painting if we could identify [it by] a certificate of authenticity or a valuation”. Ms Stewart told them that Mr Gant would provide them with a valuation, and confirmed that Mr Gant was a ‘Commonwealth valuer’.
Mr Blanche made an offer to Ms Stewart to purchase the purported Dickerson work for $10,800.00. This was accepted by Ms Stewart and the sale proceeded but was subject to a guarantee of authenticity being provided.[10]
[10]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) pages 173–174.
Ms Stewart subsequently arranged for the “Pensive Woman” work to be delivered to Mr Blanche’s office on 2 May 2005 with a valuation which had earlier been provided by Mr Gant dated 21 December 2004 in respect of the purported Dickerson work (“the 21 December 2004 valuation”). There was no evidence as to why the valuation was dated 21 December 2004, other than the valuation was expressed to have been conducted by Mr Gant on that date. Mr Blanche took delivery of the work and paid a cheque for $10,800.00 for the purchase price.
The 21 December 2004 valuation in respect of the ‘Pensive Woman’ work was prepared under the name of Mr Gant’s art gallery, “GALLERY IRASCIBLE”. It was addressed to Ms Stewart of Gretz Gallery. It was signed by Mr Gant. It stated in relation to the alleged Dickerson work:
Robert Dickerson
“Pensive Woman”
Pastel on paper
75 x 56cm
Signed
Valuation $13,000 (thirteen thousand dollars)
Valuation conducted by Peter Mr Gant 2/12/04
This value reflects average prices asked for similar works in galleries throughout Australia.
Subsequently Mr Blanche received a tax invoice from Mr Gant’s art gallery, Gallery Irascible, dated 2 May 2005.[11] The tax invoice was drawn in respect of the work “Pensive Woman” allegedly by Dickerson. It noted that the sum of $10,800.00 was “Paid in full – with thanks” and was signed “P. Gant”. That was the first time that Mr Blanche was aware that his company was in fact purchasing the work from Mr Gant. As he said in his evidence: “That does not make good sense, to buy a painting from the valuer”.[12]
[11]Exhibit P27.
[12]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) page 180, lines 10-11.
On 22 December 2005, Mr Blanche, on behalf of Baymanta Pty Ltd, requested Ms Stewart to provide an updated valuation in writing for each of the alleged Blackman works which had been purchased. He requested the valuation, for the purpose of valuing two works purportedly created by Blackman and reporting to the Australian Taxation Office on the value of the works and for insurance purposes.
Mr Gant provided the requested valuation on or about 2 February 2006 (“the 2 February 2006 valuation”). Mr Gant provided the valuation directly to Baymanta Pty Ltd. It was posted to Mr Blanche at his office. The valuation itself was addressed to “Baymanta Pty Ltd, Trustee for the Bayside Drafting Superannuation Fund”. The valuation concluded with the following statements: “Valuation conducted by Peter Mr Gant. Valuation signed by the above. Valuation conducted on Thursday 2 February 2006”. It stated as follows in relation to the two Blackman works in issue:[13]
[13]Exhibit P24.
Charles Blackman
“Street Scene with Schoolgirl”
Charcoal on paper
Signed “Blackman” LR
63 x 51 cm
$10,000 AUD
Charles Blackman
“Three Schoolgirls”
1953
Charcoal on paper
Signed “CB53” LR
32 x 62 cm
$12,000 AUD.
Mr Blanche paid for the 2 February 2006 valuation, which he used to update the values of the artworks owned by Baymanta Pty Ltd in the superannuation fund of which it was the trustee.[14] The company used the valuation in reporting to the Australian Taxation Office on the value of assets which it held and for insurance purposes.[15] I also infer from the provision of the valuation and its contents, that it also served to confirm in Mr Blanche’s mind that the two purported Blackman works which had been earlier purchased by his company Baymanta Pty Ltd, were genuine.
[14]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) pages 186–187.
[15]Ibid pages 187–188.
Evidence of Walter Granek
Walter Granek (“Mr Granek”) is the director of Walter Granek Fine Art Pty Ltd, a consultant and dealer in Australian art, and an appointed Commonwealth Valuer under the Commonwealth Cultural Gifts Program. As a freelance art consultant he has acted on behalf of the Blackman Children’s Trust since 1994, cataloguing almost 3000 works of art by Charles Blackman in the Trust’s collection.[16]
[16]Expert statement of Walter Granek dated 26 March 2010, paragraph 5.
On 29 July 2008 Mr Blanche visited Mr Granek’s art gallery to view various Australian works of art.
At that time, Mr Granek had a collection of works by Blackman for sale. Mr Blanche advised him that he had purchased two Blackman drawings “Street Scene with Schoolgirl” and “Three Schoolgirls”, and also a Dickerson pastel drawing “Pensive Woman” from Gretz Gallery. He explained that these works had been purchased by his company Baymanta Pty Ltd. Mr Blanche requested Mr Granek to value Baymanta’s art collection to enable Mr Blanche to ascertain how much Baymanta would be permitted to spend on additional works of art, and also to value the art works for insurance purposes.
On 4 August 2008, Mr Granek visited Mr Blanche’s office to view the works purported to be by Blackman. When he did so, he immediately considered them to be fakes. He stated:[17]
Several years prior to this another party, being Fraser Hopkins, had shown me one of the two drawings known at that time as “Street Scene with Schoolgirl’ (“Single Schoolgirl”) which I identified as fake at that time. The second charcoal drawing was entitled “Three Schoolgirls” and was very similar to another charcoal drawing “Three Schoolgirls” I had identified as a fake for another party several years earlier, being Ian Rogers. I was told by Mr Blanche that both drawings had been sold to the Superannuation Fund by Gretz Gallery and were authenticated and valued by Mr Gant at the time of purchase.
[17]Expert statement of Walter Granek dated 26 March 2010, paragraph 9.
As to the basis for his belief that the two drawings were not genuine, Mr Granek stated:
They were purportedly from the 1950’s era of Charles Blackman’s works, one being dated 1953 and the other in the style of Blackman’s schoolgirl drawings with pleated dress, mushroom style school hat with a figure placed in a sparse urban setting. Charles Blackman’s drawings at this time were his signature pieces. By this I mean that true Charles Blackman art work from this period had a characteristic directness of line and sharpness, tension and tonal variability. In addition, Charles Blackman at that time was poor and as such used poor quality art paper. The fake Charles Blackman drawings were created using fresh white bleached quality artist’s paper. In addition, Charles Blackman’s images were quite specific, telling a story. The “Single Schoolgirl” and “Three Schoolgirls” displayed no mannered way in drawing as compared with original drawings by Charles Blackman during that period. The fake Charles Blackman drawings were of contrived scenes. For example, “Single Schoolgirl” included an anomalous figure in the background and the composition included signs saying “FRUIT and VEG” which would not have been included by Charles Blackman in his artworks. In my view, there is nothing Blackman-like about the piece. It is a fanciful drawing with no strength in line. The “Three Schoolgirls” artwork was very poorly drawn and composed in my view.
Mr Granek also considered the purported Dickerson work, “Pensive Woman” and recommended that Mr Blanche contact Mr Nall at the Dickerson Gallery in Richmond. He advised that Mr Nall was an expert on the works of Dickerson and also a Dickerson family member and would be able to verify the authenticity of the work.
Refund Paid to Blanche
In or about July and August 2008, Mr Blanche received advice from Mr Granek, Mr Smith and Mr Nall that the works in question were fake.
In September 2008, upon demand being made by Baymanta Pty Ltd, Ms Stewart promptly paid a bank cheque to the company in the sum of $31,860.00. This represented the total purchase price for the three works, which was $24,300.00, together with interest. The artworks were returned.
Subsequently Mr Gant took possession of the artworks. The circumstances of this transaction are unknown because Mr Gant did not give or call any evidence. He has remained in possession of the works unti they were admitted into evidence as exhibits at the trial.
The Case of the Plaintiffs
The Plaintiffs allege that by providing the 21 December 2004 and 2 February 2006 valuations, Mr Gant impliedly represented to the ultimate recipient of those valuations, Baymanta Pty Ltd, that the purported Dickerson work and the purported Blackman works were authentic. The Plaintiffs also allege that by selling the purported Dickerson work to Mr Blanche’s company on 2 May 2005, Mr Gant represented that the work was authentic. These representations are pleaded to be misleading or deceptive or likely to mislead or deceive in trade and commerce in breach of s.9 of the Fair Trading Act 1999 (Vic) (the “Fair Trading Act”).
The Plaintiffs sought the following relief in the proceeding: damages; permanent injunctions retraining the future sale or offering for sale of the artworks in issue, or providing valuations in respect of them; delivery up for destruction the artworks in issue; and the provision of a wide ranging affidavit from Mr Gant relating to all of his dealings, including full details of all works represented by him to be works of either of the Plaintiffs. They also seek a declaration to the effect that the artworks in issue are not works created by the Plaintiffs.
At the close of the case for the Plaintiffs, Mr Gant, through his counsel, made a no case submission. I determined that there was no case to answer on the question of damages alleged to have been caused to the Plaintiffs by the conduct of the Second Defendant relied upon. However, in the exercise of my discretion, I did not put the Second Defendant to his election as to whether he should be permitted to make his no case submission in lieu of calling evidence. Indeed, I expressly permitted the Second Defendant to call such evidence as he desired to call in support of his case.[18]
[18]Blackman and Ors v Gant and Anor [2010] VSC 109.
In spite of this invitation, Mr Gant did not give any evidence, nor did he call any on his behalf.
Central to the case advanced by Blackman and Dickerson is whether the works of art which are attributed to them, are authentic. The Plaintiffs called a substantial body of evidence that the works are not authentic and are fake. The Second Defendant, Mr Gant, challenged this allegation in cross-examination of the Plaintiffs’ witnesses advanced by his counsel. He says that the works are authentic works created by the hand of the artists. However, Mr Gant called no evidence to substantiate his claims.
The First Plaintiff, Charles Blackman did not give evidence regarding the authenticity of the two works ascribed to him. He is afflicted with Korsakoff’s syndrome, a form of brain damage which affects short term memory. I accept that Blackman was unfit to give evidence at the trial. Tom Lowenstein (“Mr Lowenstein”) gave evidence in his capacity as Blackman’s attorney.
THE ALLEGED BLACKMAN ARTWORKS
Evidence of Geoffrey Smith
Geoffrey Smith (“Mr Smith”) is the vice chairman and national head of art at Sotheby’s Australia. His curriculum vitae[19] included curatorship of the exhibition “Charles Blackman Alice in Wonderland” held at the National Gallery of Victoria between 11 August and 15 October 2006. Mr Smith described this exhibition as a “culmination or many years research on Charles Blackman”. He also co-authored a publication on Blackman about the exhibition. I am satisfied that Mr Smith is well qualified to express opinions about the work of Blackman throughout his career, including his work from the 1950’s.
[19]Exhibit P13.
Mr Smith first viewed the two alleged Blackman works in August 2008. He described his first reaction to the artworks in the following terms:
Can you recall what the opinion was you expressed?---Along the lines of, I was asking for additional provenance on the works but I said my reaction, my immediate reaction to seeing, sighting these two works were that I couldn't verify that they were indeed by Charles Blackman at all.
Mr Smith, in a letter to the Plaintiffs’ solicitors dated 27 November 2008,[20] stated the following:
No reference to these works can be located in the literature or exhibition history for Charles Blackman.
The provenance of these works, from their production to the present time, is unsubstantiated and cannot be verified.
Based on the above information and the stylistic and technical inconsistencies of these works, I am unable to verify that these works on paper are by the hand of Charles Blackman.
[20]Exhibit P15 – Letter from Mr Smith dated 27/11/2008 addressed to Andrew Sullivan of Heydon and O’Loghlen Lawyers.
In his evidence, Mr Smith elaborated on what he termed “stylistic and technical inconsistencies” as referring to “the materials and technique of these works compared to works on paper that are indisputably by the hand of Charles Blackman”.[21]
[21]Exhibit P16 – email to Andrew Sullivan dated 18 February 2009 exhibited to the affidavit of Mr Smith sworn 16/3/2009.
When cross-examined on the work “Street Scene with Schoolgirl” Mr Smith said:
In my opinion this work does not have the spirit of Charles Blackman. You can have an image that is painted in the style of or in the manner of and it may, on the surface, appear to have relationships or connections to a particular artist but it doesn't have the spirit, the essence of the artist who created it. So I look at work like this, often it's instinctual, it's from the experience of looking at something over many, many years. You will look at a work and you will either feel that it is by the hand of the creator or it isn't and in this instance, I look at this work and it doesn't have that sensibility about it. Also, the handling of the pigment to me does not have the attributes of Charles Blackman and also even the paper that it's on as well. So it's all of those aspects that come together that you equate as making up the ingredients of an artist's work and I look at a work such as this and yes, it's signed Blackman, it is of a schoolgirl, which we know that Charles Blackman produced in the 1950s, but it looks to me like it's in the manner of the artist rather than being by the artist [himself]”[22].
[22]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010) page 98 lines 11-31; page 99 lines 1 and 2.
Mr Smith was then taken to the second piece of work purported to be by the hand of Mr Blackman, “Three Schoolgirls”. He said this:
Once again, and also instinctual but - I mean, if these works were by Charles Blackman I would be dating them to between 1952 and 1954. Now, to me when I look at them, they look much newer than that. The paper that they are on is atypical and unlike the paper that the artist used, the materials that the artist used at the time and also there does not have the kind of the 50 year patina on the work as well. Paper of course is a - it's light sensitive, it's different to an oil painting, so it ages. Works on paper do have a patina unless they are in the solander box from the time they were created and both of these works don't have that age on them, as well as all the other aspects I've alluded to. There's also a clumsiness to these works, there's a crudity and sort of like - I talk about the spirit but it's sort of like a lack of imagination. There's a mechanical feeling to these works and not the finesse that we love and regard as being by the artist.
Pressed on the issue in cross-examination, Mr Smith elaborated on his opinion that the works were not authentic Blackmans:
Why you believe they are not Blackmans?---Looking at them again for the second time, I thought I had sort of elaborated on that earlier, the whole patina of these works - I cannot recall when I saw them last time but it may have been that they were framed last time so they were behind glass and they were also in a frame. Yet, being able to see them again and also without glass and without a frame, I can get a closer inspection of the materials and the technique and also the age of the paper and the consistency of that paper with the materials that Charles Blackman used in the 1950s.
As to the “Three Schoolgirls” work, Mr Smith said:
Charles Blackman is a consummate draftsperson. He by this stage had been drawing for many years and he had the most – great ability to handle the charcoal medium, charcoal and pencil. The way in which the figures are placed on the paper, the way in which they occupy space, the way in which the outlines of the bodies are formed, the way in which the black is used to delineate positive and negative space, the way in which he is actually depicting the body in motion is, in my view, very clumsy. Also, I ask myself, what is the artist doing in this composition? What is he showing, what's his point of creating this image and to me it looks like, sort of three figures from somewhere have been conflated into one and also, I don't quite understand the window and what's going on in the background. There's an awkwardness and an unresolved aspect to this drawing which I don't equate with Blackman's drawings of this scale and this finish from this period, which - in this instance, the work is inscribed, "CB 53" so … that would imply to me that if it was by the hand of Charles Blackman, it would date to 1953.[23]
[23]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010) page 108 lines 3-31; page 109 lines 1-12.
In re-examination, Mr Smith was questioned about Blackman’s Schoolgirl themed works created after the 1950’s period, and was asked for his observations as to the “Street Scene with Schoolgirl” work in this context. As to this he said:
.... a work of art produced by Charles Blackman in the 1970s in the schoolgirl theme is very different to an artwork that he produced in the 1950s, or indeed 1960. He was using different materials, he was using canvass as opposed to composition board, he was like staining the canvass, the drawing is a very different technique, so each period is very distinct in the other.
Then if you wouldn't mind looking at the larger painting, that's the "Single Schoolgirl" [“Street Scene with Schoolgirl”], noting what you've said already about how this work doesn't appear to be a work from the hand of Blackman, can you say anything as to a stylistic reference as to whether it appears to come from the 50s, 60s or 70s?---The subject of this picture is in the manner of Blackman from the 1950s. The reason I say that is because it's akin to the paintings of hoardings of Hawthorn area. He wasn't there in the 60s and 70s and 80s, so this kind of imagery and kind of iconography that Blackman was producing dates from the 1950s. So if this was by Charles Blackman, it would be from the 1950s. However, I just can't - to me it doesn't ring as being from - by Blackman and certainly not from this period. As I mentioned earlier, it's that whole sense of sort of newness to it. It doesn't have the age to it and yes, it doesn't look like a work of art produced almost 60 years ago. I don't believe I've ever seen this work out of its frame. Often with Blackman, he signed in different ways, so sometimes clues about a work's authenticity can be revealed from the back as well and also getting it out of its frame and looking at the paper. Also, the other thing is if the work hadn't been framed for a period of time it may be a little bit rough around the edges, so there are all these aspects about a work of art and its life and its history that tell you more about it but that is - in my opinion, I don't believe that this is a work that Blackman, even if he had created it, would have gone back in the 1960s or 70s to this particular treatment of the schoolgirl image.[24]
[24]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010) page 116 lines 13-31; page 117 lines 1-31; page 118 lines 1 and 2.
From his observations of the works, Mr Smith was of the opinion that neither of the alleged Blackman works were by the hand of the artist.
Evidence of Associate Professor Sloggett
Professor Robyn Sloggett (“Professor Sloggett”) is an Associate Professor at the Centre for Cultural Materials Conservation at the University of Melbourne. Professor Sloggett prepared a report on each of the works in contention.[25] Professor Sloggett elaborated on her duties at the Centre for Cultural Materials Conservation in examination-in-chief:
At the University of Melbourne we have responsibilities for teaching, research and commercial programs and authentication comes into all of those. We run an authentication program, which is a postgraduate certificate, so we train people in that field. We undertake research on artist's materials and techniques and with that we are engaged with scientists in looking at choices artists make about materials, how they manufacture an object and that is really scholarly research that feeds into the art historical program. We are very careful in that program that we use securely provenanced works so that if we are making statements about an artist we know that anything we are putting into the scholarly repository is about securely provenanced works and we have a number of databases that we have developed that have got, for example, pigment analysis, support types, framing preferences, and this builds a knowledge of the materials and techniques of an artist. So that's the research. Then we have the commercial program and through that we have works in periodically for assessment, generally because clients are interested in the materials and techniques analysis to see if there's what we frame as anomalies within the best fit that we have for what would be a securely provenanced work. So the work falls in those areas but the methodology is very securely located around non-provenanced works by an artist.
[25]Exhibit P31 – Three reports of Associate Professor Sloggett.
The three works were presented to her at the Centre for Cultural Materials Conservation for her assessment as to the fit in each case with the oeuvre of the alleged artist. Professor Sloggett elaborated on the process of assessment which was undertaken, which she described in the following terms:
… it involves an assessment of the materials and techniques:
1. within an artist’s oeuvre and
2.within the framework of the proposal that the work presented is purported to be by a particular artist and from a particular date.
These two propositions provide the basis for the points of identification from which an assessment of the work can be undertaken.
The preferred process for attribution is to:
1. examine the work
2. assess the work within the artist’s oeuvre
3.assess the work against the proposition provided “that this is a work by xxx from the period xxx comprised of xxx materials”
4. undertake testing of relevant points of identification.
From this process the hypothesis that the work fits within the artist’s oeuvre can (at best) be established, and at least supported or dismissed.
However, Professor Sloggett was careful to qualify her opinions because of the time constraints she was compelled to work within in this case. She advised of the preliminary nature of her reports:
As part of the process a Preliminary Report is usually generated in order to identify analytical pathways and determine optimal analytical procedures. This process will generally take 6 to 8 weeks and often longer. Further in depth analysis undertaken and a Final Report prepared.
In this case the works were delivered at two days notice with seven days to examine the three works. This report is therefore provided subject to the limitations of the process.
… As mentioned these must be considered as preliminary reports as there has not been sufficient time to conduct full analytical enquiries.
In relation to the work “Street Scene with Schoolgirl” Professor Sloggett concluded that:
Overall there are sufficient anomalies with this work such that it is not possible to ascribe this to the oeuvre of Charles Blackman with the evidence available. The considerations below are provided to identify issues that arise in ascribing this work to Charles Blackman.
The observations relied upon by Professor Sloggett were as follows:
1.The “schoolgirl” subject matter is consistent with a series of works produced by Blackman in the 1950s.
2.The materials used in the manufacture of this work consist of a medium-weight machine-made wove paper and black, friable media, consistent with dry pastel. A complete analysis of the media has not been completed and analytical testing would be required to conclusively identify the media used.
3.The media is consistent with Blackman’s use of a black, dry, friable medium. Many of Blackman’s drawings are catalogued as charcoal, however, no tests have been cited to confirm that this is the correct description. Charcoal and black pastel can often look very similar, however they can be differentiated through visual examination, as pastel is usually a more intense black than charcoal. Pastel also has more body, while charcoal produces a thinner layer of colour.
4.The paper support does not appear to be of the 1950s era. The identification of ligneous impurities under magnification would suggest that the paper quality is low. One would expect to see some more overall discolouration of the acidic components on a 50 year-old low-quality paper. This example is in good condition overall, with little evidence of acidic degradation. Additionally, the dark, flecked fibres in the paper construction also suggest that the paper is more recent than mid-1950. A survey of paper available in the 1950s would confirm this.
5.There is evidence of some photodegradation of the paper, evident in UV light, where the central image area appears darker. The edges of the paper, where previously covered by the mount, are lighter and therefore likely to be less degraded.
6.The drawing has been adhered to a board that has pre-used (for example evidence of accretions and dark stains exist underneath the paper support).
The paper does not have deterioration characteristics typical of a low-quality lignin containing paper produced at the time when Blackman was known for producing the “schoolgirl” series. In particular the adherence to the wood pulp board auxiliary support is problematic. If this support was part of the original framing system then it would have impacted much more severely on the condition of the paper. If it is a recent adhesion (as indicated by the lack of degradation of the PVA) then it is an odd choice for a work purported to be by Blackman and therefore of some value.
Overall the lack of evidence of deterioration is problematic for the assertion that this is a work by Charles Blackman from the period when the schoolgirl series were being produced.
Professor Sloggett also made reference to two securely provenanced works which she examined to determine the fit of the materials and techniques used in the drawing of the work in question with those known to have been used by Blackman. She observed that:
There were perceived differences in the method of application, in particular the line on the securely provenanced works were not continuous, unlike the use of line in this example. There is a lack of graduated tone in this example, to build-up any sense of depth. As a result, the figure is not located within the compositional space, rather basic geometric shapes form the figure and architectural elements of the composition. The medium provides no sense of depth and is not used to develop the effect of shadow beneath the figure, or any graduated tones used to build-up the form in the pleats of the skirt or hat, in a way that is evident in securely provenanced works.
As to the work “Three Schoolgirls” Professor Sloggett concluded that:
Overall there are sufficient anomalies with this work such that it is not possible to ascribe this to the oeuvre of Charles Blackman with the evidence available. The considerations below are provided to identify issues that arise in ascribing this work to Charles Blackman.
Professor Sloggett made the following observations:
1.The “schoolgirl” subject matter is consistent with a series of works produced by Blackman in the 1950s.
2.The media is consistent with Blackman’s use of a black, dry, friable medium. Many of Blackman’s drawings are catalogued as charcoal, however, no tests have been cited to confirm that this is the correct description. Charcoal and black pastel can often look very similar.
3.The paper support does not appear to be of the 1950s era. For example, the paper is very white on the verso and at the edges suggesting it is more recent.
4.There is an effect of discolouration of a previous mount i.e. yellow borders indicating acid migration. However these areas could also have been achieved with a pigmented wash to indicate an aged mount.
5.The paper support has been cut down after the image was made i.e. the pastel stops abruptly at the edges. The paper is roughly the same size as the support board and may have been cut down to fit into a frame.
Professor Sloggett also made reference to two securely provenanced works which she examined to determine the fit of the materials and techniques used in the drawing of the work in question with those known to have been used by Blackman. She observed that:
There were perceived differences in the method of application and the way in which the application of the medium was used to develop the image. In particular the medium provides no sense of depth and is not used to develop the effect of shadow beneath the figure, or any graduated tones used to build-up the form in the pleats of the skirt or hat, in a way that is evident in securely provenanced works. Further in images from securely provenanced works that were examined, Blackman ensures that the hands of the figures that are set against black backgrounds are clearly delineated. A study of [his] the way in which the medium is used to define hands and feet indicates a careful use of the medium to define different and specific outlines of hands and feet. In this image it appears that the figures have been constructed first, without thought for the subsequent issue of how the outlines of the hands are going to be affected by the black background. As a result the lines of the hands form little purpose and their role is compromised by the latter addition of the background. Such disjunction between form and space is not evident in securely provenanced works.
Another differentiation is the use of shadow. In this work there is no use of shadow to locate the figure in space. In securely provenanced works where Blackman has not used shadow this relates to an overall stylistic intent to create the form outside of a spatial reference. In this work the use of the dark background, the window and the ‘stage’ setting establishes a spatial setting.
The smudging appears to have been undertaken with a fingertip (tests indicated that this was the most likely way to get this characteristic smudging). If this is the case these fingerprints indicate a thin finger, whether this is evidence for or against manufacture by Blackman can be determined by assessing in securely provenanced works 1. whether Blackman used his fingertips to soften the pastel or charcoal and 2. whether his fingerprints are of similar size to those in this work.
The build up of the background also appears different from the build up of dark background in securely provenanced works. In this work it is undifferianted and plays no role other than to provide a fill. In other works the infill around the figures determines the denseness of the space and is applied in a more controlled manner.
In her evidence, Professor Sloggett expressed the view that the way Blackman drew hands was a distinctive feature of Blackman’s work. She said that he was “very careful with [drawing] them”.[26] During cross-examination, Professor Sloggett was taken to her observations on Blackman’s depiction of hands by reference to the manner in which hands were portrayed in “Street Scene with Schoolgirl” and “Three Schoolgirls”:[27]
When - as I explained, when Blackman does hands they relate to the subject, so a young girl with a bunch of flowers will have a particular sense of what her hands are doing, and they may be finely defined if the image is finely defined image. There's images of babies playing with toys and the hands are quite clumsy and the sense is that these babies can't hold the toys. So there's a coherence between the story that Blackman is telling and the way he uses the individual components, particularly of the body, in the way he delineates them with the charcoal or the pastel to form that.
.......
I would say the girl [in “Street Scene with Schoolgirl”] is holding a schoolbag but there's no sense of there being a grasp there. So the hands - from my position, and we are getting into opinion now because I don't have a body of work to test this against, but these hands are not forming the type of use that Blackman, who certainly in the works we looked at, ascribes to his depiction of hands. So they are obvious but they are not distinctive.
[26]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) page 224 lines 12-14.
[27]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) page 218 lines 28-31; page 219-220; page 221 lines 1-11.
An enlargement of the hand of the schoolgirl holding the schoolbag in the work “Street Scene with Schoolgirl” is reproduced below:
No securely provenanced work was put in cross-examination to Professor Sloggett which caused her to alter her opinion as to the manner in which Blackman drew the hands of his subjects.
A securely provenanced painting by Blackman “Prone Schoolgirl” (1953)[28] was tendered in evidence by the Second Defendant through another witness, Ms Felicity St John Moore. The hand of the prone schoolgirl in that work is not all that different to the hand clasping the school bag as it is drawn in “Street Scene with Schoolgirl”. However, this particular work was not put to Professor Sloggett in cross-examination, and in any event, Ms Moore gave evidence that the work had been heavily restored following flood damage caused to it while the painting was stored in the cellar of Dr Hal Hattam, where it remained until 2001 prior to it being acquired by another collector. In these circumstances I attribute little weight to the “Prone Schoolgirl” work. It does not, in my view, detract from the thrust of Professor Slogett’s evidence.
[28]Christie’s Catalogue for the exhibition “Modern and Contemporary Australian and South African Art”, London, 16 December 2008, Lot 37. Exhibit D3.
Professor Sloggett was also asked to comment on the use of shadow in the works in issue, when compared with Blackman’s approach to use of shadow:[29]
Could you indicate what you meant by the use of shadow in relation to the artwork?---Okay. In the works - sorry, in securely provenanced works, as I mentioned Blackman is very careful about how he's locating form and mass or how he's using the pigment to locate form and mass within space. So where there's any indication of a shadow, as there is here, a little bit here, that shadow's generally very well defined. In the works we looked at it was always well defined and used to - it's almost part of the meaning of the work so the fact that there's a schoolgirl and she has a shadow, you don't see them differentiated. These schoolgirls have no shadows. There were some later works that we looked at that had no shadows and the shadows are very clear lines around the figures, they form a very, very different purpose; there's none of that in this work. There were later works that had no shadows but where that's the case, the works are located within a particular theme, like there's a Japanese image and that's a very stylistic image, so the slight smudging to produce the shadow which is hardly differentiated at all is anomalous.
[29]Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) page 214 lines 7-28.
I accept that the examinations undertaken by Professor Sloggett of the two alleged Blackman works were circumscribed by the time available to her. Nevertheless, and with that limitation squarely in mind, her observations were more consistent with the works in question not being by the hand of the artist than otherwise.
Evidence of Felicity St John Moore
Felicity St John Moore is an honorary fellow of the University of Melbourne in the Faculty of Fine Arts. She is an art historian, a curator and an author, with particular expertise in the work of Blackman. She has personally known the artist since 1967, when she was curator for an exhibition of Blackman’s work at the Albert hall in Canberra. Since that time she has been the curator for a number of Blackman exhibitions. In 1993, Ms Moore was the sole curator for an exhibition called “Charles Blackman, Schoolgirls and Angels” held at the National Gallery of Victoria. This was a retrospective exhibition of the best paintings and drawings by Blackman from as early as 1949 to as late as 1992. She was responsible for the production of the catalogue for the exhibition, which she authored.[30]
[30]Felicity St John Moore “Charles Blackman – Schoolgirls and Angels”, National Gallery of Victoria, 1993 [Exhibit P42]).
I accept Ms Moore as an art historian of particular expertise in the work of Blackman.[31]
[31]The curriculum vitae of Felicity St John Moore is Exhibit P37.
She described Blackman’s schoolgirl series of the 1950’s as his first important artistic theme. Ms Moore described the origin of the works in the following terms:
When Charles came to Melbourne from Sydney his second house was in Chrystobel Crescent in Hawthorn ... the coachouse at the back of that house, which was a total wreck, and he and his wife Barbara did it up and they got it for a very low rental, and they lived there from 1951 to ... 1960/61. .... there was a lane running behind it, and along the lane would come the schoolgirls ... girls at that stage wore hats. ... and so he would sketch schoolgirls – it became a theme ... from observing the reality of the schoolgirls going past, it became something he developed.
Ms Moore expressed her opinion in her report as to the authenticity of the two works alleged to be by Blackman in the following terms:[32] “After careful consideration, I am of the opinion that neither of these drawings is an original by Charles Blackman”.
[32]Exhibit P38.
She expressed her reasons as follows in relation to “Street Scene with Schoolgirl”:[33]
This rather symmetrical drawing strikes me as a cobbling together of two different ideas in a way which is untypical of Blackman. The secretive and spider-like face of the schoolgirl (under her typical broad-brimmed “mushroom” hat) is blown up into a feature in a confusing narrative. She is walking past a clearly defined group of gabled “Burnley” shops. While her inner mystery is a “quotation” from other Blackman drawings (and Odilon Redon, see page 2, Schoolgirls and Angels), her psychological space has no resonance with the background, and again there is just too much information. The signwriting on the shops is “finished” (the underdrawing of the T, B and R can work either way) but the shopkeeper “ghosts” tell another story. So, too, does the dark female figure on the footpath. This overload of competing content complicates the psychology of the drawing, detracting from its immediate impact.
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