Blackman & Ors v Gant & Anor [2010] VSC 229

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

1 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.

2 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.

3 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.

4 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?

5 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.

6 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]

7 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.

8 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]

9 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.

10 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.

11 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:

12 The "signature" purported to be by the hand of the artist is enlarged below:

13 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:

14 The enlarged "signature" and date purported to be by the hand of the artist is reproduced below:

15 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:

16 The "signature" purported to be by the hand of the artist is enlarged below:

17 The Second Defendant, Mr Gant is an art dealer trading as "Gallery Irascible - Peter Gant Fine Art".

18 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.

19 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.

20 He described himself as having a "very amateurish experience in collecting some bits and pieces of art that were of no significant value".

21 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.

22 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".

23 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".

24 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

25 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.

26 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".

27 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'.

28 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]

29 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.

30 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.

31 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]

32 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.

33 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]

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.

34 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.

35 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]

36 On 29 July 2008 Mr Blanche visited Mr Granek's art gallery to view various Australian works of art.

37 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.

38 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.

39 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.

40 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.

41 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.

42 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.

43 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.

44 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").

45 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.

46 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]

47 In spite of this invitation, Mr Gant did not give any evidence, nor did he call any on his behalf.

48 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.

49 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.

50 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.

51 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.

52 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.

53 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]

54 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].

55 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.

56 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.

57 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]

58 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]

59 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.

60 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.

61 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

1. 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

1. 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.

62 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.

63 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.

64 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.

65 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.

66 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.

67 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.

68 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.

69 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.

70 An enlargement of the hand of the schoolgirl holding the schoolbag in the work "Street Scene with Schoolgirl" is reproduced below:

71 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.

72 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.

73 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.

74 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.

75 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]

76 I accept Ms Moore as an art historian of particular expertise in the work of Blackman.[31]

77 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.

78 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".

79 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.

It also runs counter to the opportunity presented by the largish sheet of paper. If the size of the paper called for a large drawing, in 1954, when Blackman was nearing his peak as a draughtsman, one would have expected an original rather than a re-working of other designs. Good artists move forwards. The fact that the present drawing appears to be contrived, "speaks" therefore, against its freshness and originality.

As regards the technique ... the outlines appear too consciously rough and ready to be convincing, especially in the areas of positive black. These blacks seem to lack Charles' sure mixture of confidence and sensibility.

80 She expressed her reasons in relation to "Three Schoolgirls" as follows:[34]

This charcoal on paper misses the effortless quality of direct attack that is the hallmark of Blackman's drawings, even on a bad day. It suggests a maker who is trying too hard. Charles is a "natural" at creating a sense of space through his handling of linear pressure and the scale of his marks.

On the contrary, in this deliberately rough and awkward charcoal drawing, the inserted window on the left works against the composition. It creates a disjointed effect, undermining the pictorial logic, in the manner of a lesser draughtsman tampering with Blackman's motifs. The particular schoolgirl motifs in this drawing have their origins in Blackman's cut-out maquettes for the projected ballet by Walter Gore. They are reproduced in my National Gallery of Victoria Schoolgirls and Angels publication on page 55. The window motif, behind the schoolgirl on the left, lends a narrative quality to this end of the drawing that is inconsistent with the figures on the steps. Its also distracts from them, throwing the composition out spatially. There is also an intuitive logic within Blackman's sense of space that jars with the misunderstood location of this "window".

81 In relation to the "effortless quality"she described in the work, Ms Moore explained in her evidence:[35]

The effortless, the word "effortless" means it's the sort of continuous line that an artist does which creates a space as it draws. It's not something that can be contrived, I don't think, and I've watched Charles draw from 1967, and we also made a film of him which included him drawing and the line that he makes has that effortless quality of creating space as it goes, and so it's sort of sufficient unto itself, I would say is another way of describing his particular line, and it's not that he can't be jerky if he wants to be jerky for a particular reason, but that the natural style is to say it once and not to alter it but to carefully control it. Having seen him doing it, it goes on and it doesn't leave the paper but it actually includes finish within it, and so that the details, like the hands and the feet and so on, are included in the thought and it is like a thought, a line surrounding a thought would be the best way I think I can describe the way that Charles Blackman draws.

82 Ms Moore was challenged on her opinions in cross-examination. Having considered the matters put, and the responses of Ms Moore, I accept her conclusion that neither of the controversial works were by the hand of Blackman, and that this opinion was well founded based on her extensive first hand knowledge and experience of Blackman's work over many years.

83 The work "Pensive Woman" was the subject of evidence from the very artist in question, Robert Dickerson.

84 In his examination-in-chief, Dickerson was shown "Pensive Woman"[36] and was questioned about his involvement in its creation. When asked whether he drew "Pensive Woman", he replied "No I did not, I certainly did not". As to whether his signature appeared on the artwork, he replied "No, I print a little 'Dickerson' on the artwork. I suppose that's printed a little 'Dickerson' on the artwork as well, but that's not my signature".

85 Mr Dickerson stated that he first saw "Pensive Woman" in 2006 when his son showed him a photograph of it, and again in 2008[37] when his wife showed him another photograph.[38] He recalled feeling "a bit sick, that's all. I thought, this is disgusting".[39] His examination proceeded:

Why did you think it was disgusting?---Because it's very bad work, it's a very commercial little study.

What about it conveyed to you that it was a work of that kind?---Well, the neck is out of proportion.

Just take it slowly in steps, please?---Its neck is out of proportion, its eyes are wrong, the hair is wrong and the shape generally of the face is wrong.[40]

86 Mr Dickerson then stated that the eyes were "wrong" as he "never used a white background pastel, in a pastel or drawing".[41] On the other hand, the "Pensive Woman" work was a pastel drawing which depicted a woman with large eyes which had drawn by been filling in the whites of her eyes with white pastel. To illustrate his point in relation to his pastel technique, the Court was shown another portrait of a woman which he confirmed he had drawn entitled "Harmony".[42] Dickerson's examination based on his authentic work continued:

Can you tell His Honour, looking at the eye feature, that is to say the eyes in the artwork, and explain how you do the eyes using whatever technique you use?---I use a rubber and use the sharp edged part of the rubber to get - to bring the white back from the paper, I use the paper as a background really, and if I use it that way, it works very well.

Why don't you use the pastel colour white?---Because it would be hard to do, the white would get mixed up with the eyes and it would be very awkward, unless you put the white down first and then worked over it, but that would be hard to do too.

So what you just described then as being the technique you use in relation to eyes, is that the technique which you use in relation to doing eyes, that is to say, using a rubber?---I use a rubber for all my drawings and all pastels, all the time, you know, to get facial changes, et cetera, like that.

...

In relation to the eye feature?---The eye technique is to do the background as white as you can with the rubber, then put the eye in there.[43]

87 During cross-examination, counsel for Mr Gant sought clarification from Dickerson as to certain "alterations" to the work "Pensive Woman" which he had earlier described in a letter dated 22 August 2008.[44] Dickerson answered "there's one big alteration, it turns what should have been a good drawing into a bloody awful one",[45] before continuing:

What are the alterations?---The hair and the eyes and the neck.

How do you say they have been altered?---I would never do a drawing like that, so the alterations of the neck I would do - becomes a tree trunk.

You also say it's a clumsy line?---Well, it is clumsy lines.

What's the clumsy line?---Everything about it, the drawing itself is clumsy.[46]

...

what's wrong with the hair?---It sort of expands a little bit, it looks as though her head's been exploded off the body.

88 Pressed further as to whether there was any doubt that "Pensive Woman" wasn't his work, Dickerson replied "I would absolutely put my life on it", stating further that he had no difficulty coming to that conclusion, although he had done a lot of drawings since 1959, and that he was easily able to recognise that the work was a fake.[47]

89 Stephen Nall ("Mr Nall") is the stepson of Dickerson and the director of the Dickerson Gallery Melbourne, established in 2000. He is also the agent for Dickerson in Melbourne.

90 On 4 August 2008, Mr Nall was contacted by telephone by Walter Granek ("Mr Granek") seeking authentication of the work "Pensive Woman"purchased by Mr Blanche's company, Baymanta Pty Ltd. Mr Granek also sent an accompanying email with an image of the subject work. Mr Nall stated[48] that upon viewing the emailed image, "the drawing was familiar to me due to the earlier incident involving Deutscher Menzies".[49]

91 On 26 August 2008, Mr Blanche attended Mr Nall's gallery with the drawing. Mr Nall inspected the work and confirmed that, in his opinion, "Pensive Woman" was not created by Dickerson. Mr Nall then told Mr Blanche that he had seen a photograph of the drawing previously, in about March 2003 and recognised it as a fake at that time.

92 Mr Nall proceeded to take photographs of the drawing both front and back. He elaborated on his observations:

The back of the drawing had nothing on it. In the material produced by Mr Blanche relating to the work was a 'certification' document which referred to the work having "Carrot Framing" [sic]. "Carat Framing" is the picture framer of choice of Robert Dickerson in Sydney, hence the possible reference to it. However the back of the drawing made no reference to either "Carrot" or "Carat" framing.

Evidence of Associate Professor Robyn Sloggett

93 Upon her examination of "Pensive Woman", purported to be by Dickerson, Professor Sloggett was somewhat equivocal. She concluded: "in the absence of securely provenanced works for comparison, there was no indication of the fit of this work within Mr Dickerson's oeuvre" and suggested that further enquiry be undertaken.

94 The evidence presented at the trial as to the authenticity of the artworks in issue was substantially all one way.

95 In relation to the purported Blackman works I accept the evidence of the experts called on his behalf, namely Mr Smith, Professor Sloggett, Mr Granek and Ms St John Moore.

96 In relation to the purported Dickerson work I accept the evidence of Mr Dickerson himself and the evidence of the expert who he called as part of his case, namely, Mr Nall. Even though he is Dickerson's step-son, I accept his opinions as being credible and honestly held. Given the limited time allowed for her examination of "Pensive Woman", the evidence of Professor Sloggett in relation to this work was necessarily inconclusive and was of no weight on the issue of authenticity of this particular work.

97 Apart from what was put in cross examination of the Plaintiffs' witnesses as to authenticity of the works in controversy, no evidence was called by the Second Defendant, Mr Gant, and he himself gave no evidence on the subject.

98 I am left in no doubt that the two works claimed to be by Charles Blackman, "Street Scene with Schoolgirl" and "Three Schoolgirls", and the one work claimed to be by Robert Dickerson, "Pensive Woman", were not by the hands of those artists. They were fakes masquerading as the genuine article. What is more, they were deliberately contrived to deceive unsuspecting members of the public in this manner. The false signatures drawn on each of the works could have had no other purpose.

99 There was a body of evidence presented by the Plaintiffs that the presence of fake works circulating in the art market purporting to be created by established artists, once exposed in the public domain, has the effect of creating uncertainty in the market in relation to the works of that artist. This in turn has the effect of depreciating the demand, and hence the market value of those works. I accept this evidence. It follows that, if this was to occur in respect of the artworks in this case, the Plaintiffs would suffer loss. The evidence also pointed to harm being caused to unsuspecting members of the public who may be lured into purchasing such works.

100 Stuart Purves ("Mr Purves"), the National Director of "Australian Galleries", was called as an expert witness by the Plaintiffs. He gave evidence as to the impact of the presence of forged artwork in the art market on the work of an artist.

101 Mr Purves gave evidence of his knowledge and experience to express these opinions in the following terms:

In my capacity as National Director of Australian Galleries I travel weekly between Sydney and Melbourne and work closely with our experienced gallery teams and artists. I also travel regularly overseas to visit artists and update my international perspective. I have over forty years of active involvement in the visual arts, and as one of Australia's few second-generation art dealers I am regularly consulted by the visual arts industry for my knowledge and expertise. I am an approved valuer under the Commonwealth Government Cultural Gifts Program and a former President of the Australian Commercial Galleries Association. For 10 years I was a member of the Melbourne Contemporary Art Fair Board, holding the position of Chairman for four of those years.

102 I accept that Mr Purves is a person who has specialised knowledge based on his experience to give evidence of the opinions he has expressed because there are wholly or substantially based on that knowledge, within the meaning of s.79 of the Evidence Act 2008 (Vic).

Do valuations of fake artworks or forgeries falsely attributed to a particular artist (which value the fake works as if they were authentic) affect the value of that artist's works in the secondary art market and/or the standing of the artist? If so, how?

Valuations wrongly provided qualifying a forgery as an authentic of a particular artist's work will inevitably, and in time, affect the standing of the artist in the secondary market and the level of quality to which their works are deservingly affiliated.

104 Mr Purves elaborated further on that statement in examination-in-chief:[51]

I think it destabilises that particular artist because it actually puts a drop of doubt in where there wasn't, and I feel also that it's not good for the industry as a whole.

105 Mr Nall also commented on the impact of forgeries in the market in general.[52] He gave evidence as to his knowledge on this matter derived from his experience. I accept his evidence when hje said: [53]

The presence of fake artworks usually means that the market for an artist's works declines as potential purchasers have no confidence that the works they see offered for sale are authentic and as such purchasers are reluctant to invest in such works. This applies equally to Robert Dickerson as any other reputable Australian artist.

Mr Nall commented further in his evidence on this subject in relation to Dickerson:[54]

Furthermore I have never met anyone wishing to buy an original work of art created by Robert Dickerson, who previously acquired a fake. I believe this is due to a lack of confidence by such purchasers in being able to obtain an original Robert Dickerson artwork.

106 Mr Nall was also asked, on the assumption that the work "Pensive Woman" was a fake, what value he would ascribe to it.[55] He replied: "No value at all".[56] This evidence was not challengerd in cross examination, nor was it controverted by any other evidence called at the trial.

107 Tom Lowenstein ("Mr Lowenstein"), Blackman's attorney,[57] and director of the Second Defendant, Blueco Six Pty Ltd, the corporate trustee of the Blackman Children's Trust, gave evidence as to Blackman's reputation and the damage to it caused by the existence of forgeries in the market.[58] He was also in a position to draw upon, what he described as his "extensive involvement with the Australian art industry for many years, in particular as an accountant to many of Australia's leading contemporary artists".[59] He said:[60]

I consider that Blackman has a unique reputation in Australian art. Blackman's work is easy to understand and is not abstract. I believe Charles Blackman is the best known Australian Figurative artist. He is recognised for the "Schoolgirl" and "Alice in Wonderland" series of artworks. There was an "Alice in Wonderland" exhibition of Blackman's art recently at the National Gallery of Victoria in Melbourne and most Australian public galleries and leading private collections have Blackman works.

I first became aware of allegations of fake Blackman art works being available in the art market in the mid 1990's. I believe that generally fake artworks tend to deter people acquiring works of an artist if they consider that there is a possibility that the artist's works may be forged. It is also possible to flood the market with cheaper, fake artworks in competition with works the Trust is trying to sell or works I may try to sell on behalf of Charles Blackman personally to finance his ongoing care. I believe there were a number of fake Charles Blackman drawings that were initially made available to the art market in or about 1996 and not only members of the public but also major dealer [sic] were purchasers of these fake works. Now shown to me and marked with the letters "TL 2" is a copy of an article from the Australian Financial Review of 7 September 2000 entitled "Bogus Blackmans Back on the Circuit". This article refers to two fake Charles Blackman charcoal drawings that were originally offered for sale and after withdrawal from auction were again later offered for sale to members of the public.

I believe that the actions of those who promote and market false works purportedly created by Charles Blackman are highly detrimental to Blackman and his legacy in Australian art. Such fake works diminish Blackman's overall standing as he becomes associated with inferior works. They also significantly harm the secondary market for genuine Blackman works, with purchasers being diverted from genuine works into purchasing fake works. I believe these matters generally tend to undermine the market for genuine works of Blackman, a market in which I have a significant interest as attorney for Blackman, engaged as I am in selling his works from time to time to manage personal matters on behalf of Blackman as I have described above.

108 In his evidence, Dickerson expressed concerns about the presence in the market of the work which he identified as being fake, stating "it demeans my efforts to do a good drawing and people who have collected my work over a number of years would be very upset to see that".[61] He said further that it made him look stupid "because it is a very bad drawing, it looks incredibly bad".[62]

FINDINGS AS TO THE IMPACT OF FAKE WORKS ON THE ART MARKET

109 The evidence showed that the presence of fake artworks in the art market will result in the market for the subject artist's works contracting, once the presence of such works circulating in the market becomes public knowledge. In this circumstance, potential purchasers will understandably have reduced confidence that the works offered for sale are authentic and be less prepared, if not reluctant, to invest in the works of the artist who is the subject of the deception. Once sham works are introduced into the market for sale, the potential for them to be exposed as forgeries is palpable. If and when this occurs, harm will be caused to the market for the artist who is passed off as the creator of the fraudulent work.

110 Harm will also potentially be caused to members of the public who may be unwittingly enticed to buy a forged art work induced by the apparent authenticity of the work. The risk of outlaying monies to acquire such works, while labouring under a misapprehension as to provenance, is equally palpable.

111 The potential for such harm is also caused by incorrect certifications of authenticity and valuations which are produced and used to induce the sale of artworks which are of a false or dubious provenance. Loss of confidence in the market in the authentic works of the artist will inevitably follow upon discovery of the true position, once the deception becomes public knowledge.

112 As to the value of the works in this case which have been found to be fakes, I accept from the answer given by Mr Nall that the work "Pensive Woman" would have "No value at all"[63] on the assumption that it was a fake, that this in fact is the case. From this evidence, I also infer the two works falsely attributed to Blackman have no value.

9. Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

114 The case presented by the Plaintiffs was that the representations which they alleged were innocent representations in the sense that Mr Gant did not intend to mislead or deceive by his conduct. No evidence was given or called by him to support this contention. In any event, a person may engage in conduct which is in breach of s.9 of the Fair Trading Act, even if that person acts honestly and reasonably.

115 It was also submitted by the Second Defendant that the valuations were just that, they were valuations and were not certificates of authenticity. It followed, so it was put, that they did not contain any representation as to the authenticity of the works, but rather were confined to a valuation of the works, on the assumption that they were authentic. It was further submitted, in the course of seeking an amendment to the defence of the Second Defendant, which I refused, that being valuations, they merely conveyed representations that the opinions expressed in them were held, but also that they were based on reasonable grounds; that they were the product of the exercise of due case and skill; and that they did not go outside the range of latitude properly allowed to them. [64]

117 In the first place, as demonstrated by the facts of this case, a valuation of an art work may, and often does, serve two purposes - the provision evidence as to the assessed market value of the work and a certification as to its authenticity. This is so because authentication is part of the process of valuing an art work. [65] In this respect, I accept the evidence of Mr Purves when he said:[66]

The valuer should advise the person requesting the valuation of the artwork, be they owner or purchaser, the documentation of provenance should be investigated and sought prior to any value being indicated, as the market value only reflects works which are authentic products of an artist's oeuvre.

118 In this case, the 21 December 2004 valuation was provided to Mr Blanche because he wanted verification as to the authenticity of the purported Dickerson work. The 19 October 1999 valuation was provided to Mr Blanche for the same purpose in relation to the purported Blackman works. The valuations provided in each case served as authoritative statements as to authenticity. They presented the information which they contained in an objectively credible form. They were clearly capable of being relied upon as evidence of authenticity, and were in fact relied upon in this way by Mr Blanche.

119 In the second place, the representations as to authenticity, in the context of the valuations, did not convey mere expressions of opinion. They conveyed, in each case, a representation of fact that each of the works in question were drawn by the stated artist. In each case, this representation was contained in a positive unqualified statement in the valuation. In the context in which the statements were made in each case, properly understood by a recipient, they were representations of fact, not opinion.

120 The fact is, as I have found, the works were not authentic but in each case were fake. Accordingly, I find that the valuations contained representations as to the authenticity of the alleged Dickerson work and the two alleged Blackman works which were false.

121 Further, there is little doubt that the representations were made in trade or commerce. The 21 December 2004 valuation relating to "Pensive Woman" was supplied directly in connection with the sale of that work to Mr Blanche's company, and in fact induced him to proceed with the purchase. The 2 February 2006 valuation of the two purported Blackman works were provided by Mr Gant directly to Mr Blanche, and at his request for the purposes 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. Further, Mr Gant addressed the 2 February 2006 valuation to Mr Blanche's company, Baymanta Pty Ltd as "Trustee for Bayside Drafting Superannuation Fund". I infer that Mr Gant knew that the valuation was to be used by the trustee of the superannuation fund to value the works of art which it held for investment purposes as part of its commercial activities in administering the fund.

122 I find on the objective evidence available to me that the representations made in the valuations amounted to conduct that was misleading or deceptive, or was likely to mislead or deceive. The fact that Mr Blanche, a member of the public, actually placed reliance on the representations, serves to reinforce this conclusion. '

123 In the case of the 21 December 2004 valuation, I find that Mr Blanche, in his capacity as a director of Baymanta Pty Ltd, on or about 2 May 2005, relied on the valuation as evidencing both the value and the authenticity of the purported Dickerson work "Pensive Woman", purchased the work on behalf of Baymanta Pty Ltd from the Ms Stewart for $10,800.00.

124 As to the 2 February 2006 valuation, I accept the evidence that Baymanta Pty Ltd relied upon it as verifying both the value and the authenticity of the purported Blackman works, "Street Scene with Schoolgirl" and "Three Schoolgirls", for the purposes of valuing its assets and reporting to the Australian Taxation Office on the value of those assets and for insurance purposes. I also infer that the provision of this valuation to Mr Blanche had the effect of confirming in his mind that the purported Blackman works which were sold to his company in October 1999, were in fact authentic works produced by that artist. Had the position been correctly stated in the 2 February 2006 valuation, I have no doubt that Mr Blanche would have taken immediate steps to protect his interests by seeking the return of the money outlayed by his company on the purchase of the forged Blackman works.

125 The present case is very different and is to be distinguished from the facts of Saints Gallery Pty Ltd v Plummer ("Saints Gallery")[67] where the purchaser concerned had far more expertise in the art works purchased than the gallery owner who supplied them. In that case, the New South Wales Court of Appeal found that there was no relevant reliance on the part of the purchaser. In contrast, Mr Blanche in acting on behalf of his company Baymanta Pty Ltd, was very inexperienced in the art market and relied heavily upon what he was advised by Mr Gant in the valuations he provided.

126 It follows that Mr Gant's conduct in providing the valuations was in breach of s. 9 of the Fair Trading Act.

127 I further find that, in selling the purported Dickerson work to Mr Blanche's company on 2 May 2005, Mr Gant also engaged in conduct in contravention of s. 9 of the Act.

128 As the Full Court [68] observed in The Saints Gallery case: [69]

Ordinarily, one would expect that a gallery owner who sold forgeries to a customer could hardly resist a claim under s.52 of the Trade Practices Act [the equivalent to s.9 of the Fair Trading Act] for such relief as the primary judge gave.

129 In relation to the sale of the alleged Dickerson work to Mr Blanche's company on 2 May 2005, I find that Mr Gant was the actual seller of the work, although at the time this was unknown to Mr Blanche. The true seller became known when Mr Blanche later received the tax invoice from Mr Gant evidencing the sale. By selling the work, purportedly endorsed as it was with the signature of the artist Dickerson, Mr Gant represented to Mr Blanche and his company that in fact the work was authentic and was created by the hand of the artist.

130 Consequently, I find that on 2 May 2005, by supplying the work "Pensive Woman"to Mr Blanche's company, which was falsely ascribed to the artist Robert Dickerson, Mr Gant engaged in further conduct in trade or commerce that was misleading or deceptive or likely to mislead or deceive in breach of s.9 of the Fair Trading Act.

131 A breach of s.9 of the Fair Trading Act can occur by innocent conduct. In this case, I make no finding against Mr Gant that he knew that the works in question were not authentic or that he acted other than innocently.

132 In my opinion, the Plaintiffs are each entitled to a declaration that the works which are attributed to the artists are not works created by them.

133 In Ambridge Investments Pty Ltd (in liq) (recvr app'td) v Baker & Ors[70] I considered the basis for the grant of relief by way of a declaration.

134 As was said by the High Court in Ainsworth v Criminal Justice Commission:[71]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible or desirable to fetter ... by laying down rules as to the manner of its exercise".[72]

135 Speaking extra curially in 2007, Justice RS French (as he then was) [73] in his paper "Declarations - Homer Simpson's Remedy - Is there anything they cannot do?"[74] considered the function of a declaration. Noting its inherent flexibility and procedural simplicity, the following question was posited: "Well may we ask rhetorically of declarations as Homer Simpson asked of donuts - 'is there anything they can't do'?"[75] His Honour analysed the nature of the remedy in the following terms:[76]

... [The question is raised as to] whether a declaration is, strictly speaking, an exercise of power at all. A judicial declaration says something about something. It is a formal statement which may be of fact or law or mixed fact and law.

136 In the same paper,[77] his Honour noted that: "Importantly, it [a declaration] does not create rights capable of enforcement without a further order of the Court". His Honour proceeded:

As PW Young observed in the 2nd edition of his text, "Declaratory Orders":[78]

The enforceability of a declaratory order is the weak spot in its armour, as there is no sanction built into declaratory relief.

Zamir and Woolf put it thus in the 3rd edition of "The Declaratory Judgment":

A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs. It is to be contrasted with an executory in other words coercive, judgment which can be enforced by the courts.

Nevertheless, declarations by courts have legal consequences. A declaration is not "a mere opinion devoid of legal effect".[79] It "operates in law either as a res judicata or an issue estoppel and such an order is a final order for the purposes of appeal".[80]

The absence of any coercive element in declaratory judgments is reflected in the difficulty of securing stay orders in relation to them. Again citing PW Young:

The effect of the court's order is not to create rights but merely to indicate what they have always been ... Because of this, if an appeal is lodged against a declaratory order, conceptually there can be no stay of proceedings.

137 Thus it can be said that a curial declaration says something about something. It has a legal effect but otherwise does nothing.[81]

138 Given that the central controversy between the parties was as to the authenticity of the artworks in issue, and that the Plaintiff artists have a substantial and material interest in having the findings as the authenticity made in these reasons stated as binding declarations of right, I am prepared to grant declarations in the following terms:

The works which are the subject of this proceeding, being two works claimed to be by the artist Charles Blackman, in this proceeding called "Street Scene with Schoolgirl" and "Three Schoolgirls", and one work claimed to be by the artist Robert Dickerson, in this proceeding called "Pensive Woman", are not works by the hand of those artists and are fakes.

139 The Plaintiffs claimed damages pursuant to s.159 of the Fair Trading Act for the contraventions arising from the provision of the 21 December 2004 and 2 February 2006 valuations, and the sale of 'Pensive Woman' to Mr Blanche's company on 2 may 2005. No relief by way of damages was sought in respect of the provision of the 19 October 1999 valuation, no doubt because of the statutory bar provided by s.159(3) which precludes the commencement of any action for damages more than six years after the date on which the cause of action accrued.

140 I have already determined in my reasons delivered on the no case submission made by the Second Defendant that no damages are open to be awarded in favour of the Plaintiffs on the causes of action pleaded and on the evidence adduced at the trial.[82] Essentially, there was no evidence that the conduct of the Second Defendant relied upon, namely the provision of the 21 December 2004 and 2 February 2006 valuations to Mr Blanche, and the sale to his company of the alleged Dickerson work on 2 may 2005, being conduct in breach of s.9 of the Fair Trading Act which I have found, was the cause of any loss to any of the Plaintiffs. The Plaintiffs had no involvement in the transactions giving rise to the loss and damage claimed.

141 The Plaintiffs also sought the provision of a wide ranging affidavit from the Second Defendant Mr Gant relating to all of his dealings in the course of his business, including full details of all works represented by him to be works of either of the Plaintiffs. The relief sought in the Further Amended Statement of Claim was in the following form:

The Second Defendant provide an affidavit giving the following details (to the best of his knowledge);

Full details of all moneys paid in reimbursement to any purchaser of the Defendant's artistic works;

Full details of all works represented by him to be works of either the First or Second Plaintiff in his possession, power or control, which are available for sale to the public, identifying the work by name and exhibiting a reproduction of each such work;

Full details of any works represented by him to be works of either the First or Second Plaintiff which he has offered for sale or sold to the public in the preceding five years prior to the orders herein, identifying the work by name and exhibiting a reproduction of each such work (and stating the amount received with respect to the sale of each such work);

Full details of the source or sources from which the Defendant's artistic works were acquired by him, or from which the Defendant's artistic works came into his possession, power or control; and

All promotional, marketing or advertising materials with respect to the offer for sale or sale by him of any works represented by him to be the works of either the First or Second Plaintiff in the preceding five years prior to the orders herein (and exhibiting all such materials in his power, possession or control).

142 In my opinion, the provision of an affidavit in such terms is likely to cause harm to the business of the Second Defendant and is not justified by the conduct found against him. The ambit of the relief sought extends well beyond what is necessary on the facts of the case. Accordingly, I decline to make such an order.

143 The Plaintiffs sought a permanent injunction pursuant to s.149 Fair Trading Act directed to the Second Defendant and his servants and agents restraining the future sale or offering for sale of the artworks in issue, or providing valuations in respect of them. The injunction sought in the Further Amended Statement of Claim was in the following form:

Permanent Injunctions restraining the Second Defendant by himself, his servants, agents or otherwise from selling, or by way of trade offering or exposing for sale or distributing, providing valuations for or otherwise parting with possession ... of the first and second fake Blackman works and the fake Dickerson work referred to herein.

144 The Plaintiffs also sought a mandatory injunction pursuant to s.149A(3)(f) of the Fair Trading Act ordering the delivery up and destruction of the forged artworks.

145 It was contended by the Second Defendant that the pleading of the statement of claim was deficient, even in its amended form because, although the claim for a permanent injunction was made in the prayer for relief, no pleading was in place to justify the grant of an injunction in relation to the sale of the disputed artworks. There was no pleading, for example, that "unless restrained, the Second Defendant intended to sell or offer for sale" the disputed art works.

147 In the first place, the injunctions claimed in this case were not sought in equity. Statutory injunctions founded on the provisions of the Fair Trading Act were sought. The power of the Court to grant an injunction under s.149 or 149A of the Fair Trading Act is not limited by the requirement of a threat of future contravening conduct,[83] although the fact that there is no continuing or threatened contravention may be relevant to the discretion whether to grant relief.[84]

148 Secondly, the prayer for relief, which was in place in the Further Amended Statement of Claim from the outset of the trial made it clear that an injunction was sought and the terms of that injunction. The basis of the claim for an injunction was articulated in the written outline of the Plaintiffs' submissions delivered in opening the case on the first day of the trial, where s.149 of the Fair Trading Act was referred to. Further, in oral submissions in opening, the Plaintiffs referred to s.149A of the Act.[85] In the present case, the springboards for the grant of an injunction under ss.149 and 149A were the relevant contraventions of s.9 of the Act. These alleged contraventions were adequately pleaded.

149 On the second day of the trial, the Second Defendant by his counsel offered an undertaking in the following form:[86]

I'm instructed by my client that he has no intention of offering these works for sale and if required, would give the appropriate undertaking.

150 I take this to mean that, if required by the Court to do so, the Second Defendant would give an undertaking to the Court in an appropriate form to the effect submitted by counsel.

151 However, the Court has no power to accept undertakings where the Court has no power to make equivalent orders, and this is so whether or not the parties consent to the giving of an undertaking. The parties by consent cannot confer power upon a Court to make orders which the Court lacks power to make. The principles which govern the grant of an injunction by the Court must guide it in determining whether or not to accept an undertaking in lieu of an injunction. See: Thomson Holdings Pty Ltd v Trade Practices Commission.[87] However, if there is power to grant an injunction, the proffering of an undertaking in appropriate terms is a factor to be considered in the exercise of the Court's discretion as to whether to order injunctive relief.

152 Accordingly, a question arises as to whether there is power for the Court in this case to order injunctive relief pursuant to ss.149 or 149A of the Fair Trading Act on the facts of this case.

153 Boiled down to its essence, the question is: If A makes a representation to B, which is in trade or commerce and is misleading or deceptive or likely to mislead or deceive in contravention of s.9 of the Fair Trading Act, in what circumstances can C and D, who are not parties to the initial representation to B, claim relief under s.149 or 149A of the Fair Trading Act?

Operation of Sections 149 and 149A Fair Trading Act

154 Whereas the power under s.149 of the Fair Trading Act is directed to restraining conduct, s.149A empowers the Court to grant an injunction requiring a person to do an act or thing.

(1) The Minister, Director or any other person may apply to the Supreme Court, County Court or Magistrates' Court for the grant of an injunction restraining a person from engaging in conduct that constitutes-

(a) a contravention of any provision of this Act; or

(b) attempting or conspiring to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or

(d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or

(e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.

(2) The Court may grant an injunction restraining a person from engaging in conduct of the kind referred to in paragraphs (a) to (e) of subsection (1)-

(a) if the Court is satisfied that the person is engaging in or has been engaging in conduct of that kind, whether or not it appears to the Court that the person intends to engage again or continue to engage in the conduct; or

(b) if it appears to the Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind, whether or not that person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind; or

(c) if the Court determines it to be appropriate, by consent of all the parties to the proceedings, whether or not the person has engaged in, or is likely to engage in conduct of that kind.

(3) An application for an injunction under this section may be made ex parte.

149A. Injunctions to do an act or thing

(1) The Supreme Court or the County Court, on the application of the Minister, the Director or any other person, may grant an injunction requiring a person to do any act or thing if the Court is satisfied that the person is engaging in or has been engaging in conduct that constitutes-

(a) a contravention of any provision of this Act; or

(b) attempting or conspiring to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or

(d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or

(e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.

(2) The power of the Court under this section to grant an injunction requiring a person to do an act or thing may be exercised-

(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or failed to do that act or thing; and

(c) whether or not there is an imminent danger of substantial damage to any person if the first person refuses or fails to do that act or thing.

(3) Without limiting subsection (1), an injunction under this section may require a person-

(a) to institute a training program for the person's employees in relation to compliance with this Act;

(b) to refund money to purchasers;

(c) to transfer property to purchasers;

(d) to disclose information about the person's business activities or business associates;

(e) to honour any promise made in the course of misleading or deceptive conduct or in a false representation;

(f) to destroy or dispose of goods used for the purpose of a contravention of this Act.

(4) Despite subsections (1) and (3), only the Supreme Court may grant an injunction under this section requiring a person to transfer an interest in land.

(5) An application for an injunction under this section may be made ex parte.

157 The equivalent provision in the Trade Practices Act 1974 (Cth) ("Trade Practices Act") which provides power to grant an injunction is to be found in s.80, particularly for present purposes in sub-sections (1), (4) and (5). Section 80 of the Trade Practices Act has been considered in a number of authorities. I accept that guidance may be drawn from the case law on the construction of the parallel provisions of the two Acts.[88] I adopt the authorities referred to in these reasons which explain the operation of s. 80 of the Trade Practices Act, and take a like approach in construing ss.149 and 149A of the Fair Trading Act in Victoria.

158 Section 80 of the Trade Practices Act provides:

(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

(a) a contravention of a provision of Part IV, IVA, IVB, V or VC;

(b) attempting to contravene such a provision;

(c) aiding, abetting, counselling or procuring a person to contravene such a provision;

(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;

(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) conspiring with others to contravene such a provision;

the Court may grant an injunction in such terms as the Court determines to be appropriate.

(4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;

(b) whether or not the person has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any person if the firstmentioned person engages in conduct of that kind.

(5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;

(b) whether or not the person has previously refused or failed to do that act or thing; and

(c) whether or not there is an imminent danger of substantial damage to any person if the firstmentioned person refuses or fails to do that act or thing.

159 Section 80 of the Trade Practices Act provides a complete and comprehensive statement of the circumstances in which injunctions may be granted in respect of relief sought under the Trade Practices Act. As was observed by the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission:[89]

[t]he inference is irresistible the Parliament looked upon s.80 as a complete and comprehensive statement of the circumstances in which injunctions might be granted in respect of relief sought under the Trade Practices Act.

160 Under s.80(1) "Any person" may apply for an injunction in respect of a contravention of the Trade Practices Act. In particular, it is not necessary for an applicant for relief to point to a proprietary interest that is affected by the conduct or to establish damage of any kind. Section 80(1) is not qualified, for example, as is the case with s.82 of the Act, by any requirement that relief by way of injunction is limited to persons who suffer loss or damage by contravening conduct. As Bowen CJ said in World Series Cricket Pty Ltd v Parish:[90]

An applicant for an injunction under s.80 need not show that a proprietary interest of his is affected, or that he has suffered special damage, or indeed, that he personally has suffered any damage at all.

161 Further, in R v Judges of the Federal Court of Australia,[91] the four members of the High Court who considered the point determined that the words "any other person" as they appear in s.80(1) extend to all persons, whether or not they be consumers. As Mason J observed:[92]

The court is authorized by s.80(1)(c) to grant relief on the application of "any other person". The class is expressed as widely as it can be and it would require considerations of great strength to warrant a reading down.

162 The position is the same under ss.149(1) and 149A(1) of the Fair Trading Act which are expressed in similar terms.

163 The granting of an injunction under s.80 of the Trade Practices Act is discretionary. Guidance may be obtained from equitable principles in the exercise of this discretion, except in so far as they are expressly excluded or modified by the section, however equitable principles are not the sole determinant, and their relevance may vary according to the nature of the proceedings.

164 In ICI Australia Operations Pty Ltd v Trade Practices Commission[93] Lockhart J, sitting as part of a Full Court of the Federal Court,[94] said:

Section 80(4) and (5) are novel because they empower the court to grant injunctive relief notwithstanding that the defendant has not previously engaged in the prohibited conduct or does not intend to engage in it again or to continue to engage in it or there is no imminent danger of substantial damage. Yet these are the traditional requirements for equitable injunctive relief.

These subsections substantially depart from the traditional basis for the grant of injunctions in Chancery. Indeed, it moved the authors of Meagher, Gummow and Lehane, Equity: Doctrines and Remedies 2nd ed, Butterworths, Sydney 1984, to say at [21.111] on p 597 that the effect of the new amendments (that is the amendments introduced as from 20 June 1983 to subss (1), (4) and (5) of s80) "is to come very close to empowering the court to grant injunctions whether or not they are justified in law, and whether or not they are warranted on the facts". There is no doubt that subss (4) and (5) depart from the general law in permitting injunctions to be granted in the circumstances therein mentioned; but in my opinion they do not suggest legislative nihilism.

In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly.

165 There is, however, a limit on the power to grant injunctions pursuant to s.80 which is considered by the case law to impose a requirement beyond the initial threshold of an alleged or actual contravention of the Act - there must be a sufficient nexus between the alleged or actual contravention relied upon and the injunction granted. In ACCC v Z-Tek Computer Pty Ltd[95] Merkel J expressed the position in the following terms:

... there is the contextual limitation within s.80 itself. As the jurisdiction to grant an injunction is enlivened by an alleged or actual contravention of Pt IV, IVA or V of the Trade Practice Act, there must be a sufficient nexus between the contravention and the injunction granted ...

166 This approach was confirmed by French J (as he then was) in ACCC v Real Estate Institute of WA Inc[96] where his Honour added the observation that whether there is a sufficient nexus between the orders sought and the contravention alleged in the proceedings involves an evaluative judgment. French J said on the issue:

Such a requirement is derived from the evident policy of the Act and the grounding of the power under s 80 upon the fact of a contravention. The question whether there is a sufficient nexus between the order sought and the contravention alleged involves an evaluative judgment. At one level the orders sought may be so remote from the contravention alleged that the question is readily resolved as one of power. Thus an injunction directing implementation of a compliance program covering all of the provisions of Pt V in answer to an alleged contravention of Pt IV of the Act might well be thought so remote from the contravention as to be beyond the purpose of s 80 and thus beyond its power. A fortiori such an order might be thought inappropriate even if strictly within power. I respectfully agree with his Honour in relation to that aspect of his approach in the Z-Tek case.

Actual or Alleged (future) Contraventions Relied Upon

167 The Plaintiffs relied upon a number of actual contraventions to found their claim to an injunction. They seek an injunction to restrain repetition of the conduct. They also relied upon an intention or threat to commit contraventions in the future.

(a) Mr Gant's conduct in providing his valuation of 21 December 2004. This was conduct that was directly, or at least indirectly, connected with the sale of the alleged Dickerson work by the agency of Ms Stewart to Mr Blanche's company. The provision of the valuation has been found to be in breach of s.9 of the Fair Trading Act;

(b) Mr Gant's conduct in actually selling the alleged Dickerson work to Mr Blanche's company. This has also been found to be in breach of s.9 of the Fair Trading Act;

(c) Mr Gant's conduct in providing his valuation of 2 February 2006. This has also been found to be in breach of s.9. Although the immediate purpose of this valuation was to provide a valuation of the alleged Blackman works for the purposes of reporting to the Australian Taxation Office and for insurance purposes, I draw the inference that the valuations also had the effect of confirming in the mind of the purchaser that the works which had been sold to it were authentic and accordingly had a corresponding value for investment purposes which could be relied upon in the course of administering the superannuation fund. Further, no limitation on the use of the valuations was expressed by Mr Gant. I draw the further inference that, more than likely, in the event of the works being on sold to realise the investment, the 2 February 2006 valuation may well have been innocently used in aid of such an endeavour, and this use was more than likely to have been known to and appreciated by Mr Gant, particularly given the provision of his 21 December 2004 in aid of the sale of the alleged Dickerson work which was effected some time later, on 2 May 2005.

169 Although there was evidence that in 1999, Baymanta Pty Ltd, on behalf of the superannuation fund which it administered, purchased the two works allegedly drawn by Blackman and in doing so, as I have found, Baymanta Pty Ltd relied upon the 19 October 1999 valuation of the works provided by Mr Gant, the Plaintiffs did not rely on this probable earlier breach of s.9 of the Fair Trading Act to found their claim to an injunction.

170 Being mindful that an injunction may be granted under s.149 in circumstances where the Court is satisfied that a person has been engaging in conduct of the kind referred to in s.149(1)(a) to (e), and under s.149A, inter alia, if a person has been engaging in conduct that constitutes a contravention of the Act, I am satisfied that the threshold to the exercise of the power of the Court to grant the injunctions sought has been satisfied.

Whether Sufficient Nexus Between Conduct and the Injunction Sought

171 Further, I am satisfied that there is a sufficient nexus in this case between the past conduct found to constitute the relevant contraventions and the injunctions sought.

172 Counsel for the Second Defendant submitted that relief in this case was not open under s.149 or 149A of the Fair Trading Act because relief had to relate to a contravention of the Act. Here, it was said, the only contravention of the Act alleged related to the provision of the valuations to Mr Blanche and his company. It was submitted therefore, that it was not open to grant any relief in respect of the future sale of the artworks in dispute because of the need to establish a necessary nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions sought.

173 However, on a close analysis of ss.149 and 149A of the Fair Trading Act, as applied to the facts of this case, there is in my opinion a relevant nexus between the conduct found to constitute the relevant contraventions and the injunctions which are sought.

174 The supply of the alleged Dickerson work by Mr Gant to Baymanta Pty Ltd on 2 May 2005 was itself pursuant to a sale transaction. Further, the provision of Mr Gant's valuation of 21 December 2004 was undertaken directly in connection with the sale of the alleged Dickerson work to the company, through Ms Stewart.

175 The provision of the 2 February 2006 valuation in respect of the alleged Blackman works was undertaken indirectly in connection with the sale of the works by Ms Stewart to the purchaser, insofar as it confirmed the authenticity of the works which had been earlier sold by Ms Stewart to Mr Blanche's company. As I have earlier found, it is to be inferred that this was the case. Furthermore, provision of this valuation also carried with it the likelihood that it too would be used in connection with any future sale of those works, to realise the investment in the superannuation fund, should this eventuate.

176 In my judgment, there was a sufficient connection between the contravening conduct and the injunctive relief sought to confer jurisdiction on the Court to grant injunctions both under s.149 and 149A of the Fair Trading Act.

177 As to the exercise of the discretion of the Court, a number of matters are to be taken into account. As Goldberg J said in ACCC v Dermalogica Pty Ltd:[97]

In determining whether to grant an injunction proscribing future conduct, the court should consider whether all the circumstances of the case - including the scale of the prior contravening conduct, any evidence as to the contravener's future intentions and the likelihood of damage to other persons as a result of further proscribed conduct - call for the contravener being subject to the more onerous burdens, such as contempt of court, in relation to their future conduct. This consideration is required even though the power of the court to grant an injunction under s.80 is not limited by the requirement of a threat of future contravening conduct.

178 In exercising the discretion I take into account a number of factors in favour of the Second Defendant, namely: the fact that the proceedings here were not brought to enforce the public interest, but to vindicate claimed private entitlements; the fact that the Second Defendant, through his counsel has indicated a preparedness, should it be necessary to do so, to undertake to the Court not to sell the relevant works in the future; the fact that there were only three past transgressions of the Fair Trading Act which have been established, and there was no evidence of a culture of persistent and widespread breaches perpetrated upon the public; and the fact that the victim of the breaches, namely Mr Blanche's trustee company, has been fully reimbursed in respect of the contraventions.

179 Further, even though the absence of imminent substantial damage is not fatal to the grant of an injunction under s.149 or 149A of the Fair Trading Act, it may be taken into account in the exercise of the Court's discretion.

180 Nevertheless, the breaches of the Act in this case were serious. Forged art works were sold to a member of the public relying upon valuations provided by the Second Defendant who held himself out as a Commonwealth valuer.[98] The valuations in each case were formally drawn as "valuations", were on the letterhead of the Second Defendant's business and in each case were personally signed by him. They were provided in circumstances in which, in each case, they could be expected to be relied upon.

181 Mr Purves gave evidence as to the practice of a competent valuer who is requested to provide a valuation of an artwork, and the practice of gallery owners in the course of selling art work, in relation to the question of authenticity of the work.[99] His evidence was, in essence:

(a) A valuer should only agree to provide a valuation of an artwork if he or she is familiar with the artist and their work and can determine a work's authenticity through knowledge and experience;

(b) If asked to undertake a valuation in circumstances where the authenticity or provenance of the artwork is not confirmed or is in question, the valuation should not be completed. An investigation should be undertaken and authenticity of the work should be confirmed prior to valuing the work, because the market value only reflects works which are authentic products of an artist's oeuvre;

(c) A valuation should not be provided, nor should a work be sold, if the valuer or selling gallery is not confident that the work is that of a particular artist or is not confident that sufficient information has been obtained to confirm authenticity.

182 Mr Gant was given the opportunity to call evidence. However, he declined to give or call any evidence to challenge any of the opinions expressed by Mr Purves. Further, he did not give or call any evidence to explain his conduct in preparing the valuations or the steps he took to verify the authenticity of the works sold by Ms Stewart or the work he sold directly to Mr Blanche's company.

183 In this circumstance I draw an inference against the Second Defendant, pursuant to the principles stated in Jones v Dunkel,[100] as applied and explained further by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm)("White Industries"), that any evidence which he was able to give or was able to call, would have been unfavourable to his case. As his Honour observed in White Industries:

Although that case was concerned with a trial arising out of a motor car collision where the driver of the defendant's car was not called to give evidence as to how the accident occurred the principles relied on and applied by Windeyer J in Jones v Dunkel are, in my opinion, applicable to a situation where a witness is put on notice of an issue, there is some evidence from which a conclusion can be drawn about the issue and the party calling the witness and the witness do not address the issue in their evidence-in-chief. In such circumstances it is then open to the Court to infer that the witness' evidence on that issue would have been unfavourable to the party calling that witness. Windeyer J said at 320-321:

"Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol.2, s.285, p.162 as follows: `The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted'."

This is plain commonsense. If authority be needed, two passages from R v Burdett (1820) 4 B & Ald 95 may be cited. Abbott CJ said: "No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected". And Best J said: "Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just".

184 Given the weight of the evidence in this case was that the art works in question were all forgeries, and given that all of the experts called on the issue of authenticity conducted their professions in Melbourne, and were more than likely readily available to Mr Gant should he have seen fit to consult them, in my opinion, he failed to take the steps which were plainly open to him and which should have been taken by him to confirm the authenticity of the works in question, prior to preparing and delivering his valuations of the works and, in the case of "Pensive Woman", prior to selling it to Mr Blanche's trustee company.

185 Further, even though the evidence does not reveal that if an injunction is not granted, imminent and substantial damage will flow, I am satisfied that there is an appreciable risk of some damage being caused to the Plaintiffs and to members of the public should the artworks in issue find their way into the market place.

186 As to the threat of future transgressions, the Plaintiffs relied upon the conduct of the Second Defendant since he gained possession of the art works, following Mr Blanche receiving advice that they were forgeries and returning the works to Ms Stewart upon being repaid the purchase price.

187 Upon the return of the disputed artworks to him in 2008, Mr Gant entered the works in his stock list. The relevant entries were described in an affidavit of discovery sworn by Mr Gant on 15 June 2009.[101] The reference to the stock list in the affidavit was as follows:

Copy entries in stock records of Charles Blackman "Three Schoolgirls" Charles Blackman "Schoolgirl" and Robert Dickerson "Pensive Woman" attributed works.

188 The stock list was admitted into evidence as a business record pursuant to s.69 Evidence Act 2008 following inferences which were able to be drawn from the character, form and contents of the document itself which satisfied the pre-requisites of the section.[102]

189 The stock list included some entries of particular relevance.

190 In relation to the purported Blackman work "Street Scene with Schoolgirl", this was described in Mr Gant's stock list as "Untitled Schoolgirl"; it was attributed to Blackman as the artist; it was recorded as dated "c1954"; the stock number assigned to the work was "PGFA 1310-08"; and the consignee/seller was noted as "Gretz Gallery" (Ms Stewart's gallery). The designation "PGFA 1310-08" in fact appears written in pencil on the reverse of the work "Street Scene with Schoolgirl".

191 In relation to the purported Blackman work "Three Schoolgirls", this was described in Mr Gant's staock list as "Untitled Three Schoolgirls"; it was also attributed to Blackman as the artist; it was recorded as dated "1953"; the stock number assigned to the work was "PGFA 1307-08"; and the consignee/seller was also noted as "Gretz Gallery" (Ms Stewart's gallery).

192 In relation to the work purported to be by Dickerson "Pensive Woman", this was recorded in Mr Gant's stock list as "Untitled Woman"; it was attributed to Dickerson as the artist; it had no recorded date; the stock number assigned to the work was "PGFA 1311-08"; and the consignee/seller was also noted as "Gretz Gallery" (Ms Stewart's gallery). The designation "PGFA 1311-08" appears written in pencil on the reverse of the work "Pensive Woman".

193 The entries in relation to the art works the subject of this case were included amongst a total of 71 entries in Mr Gant's stock list. They were not included as a block together - two of the works in issue were placed together, and the third was entered in a separate part of the list. Fourteen items in the stock list were recorded as having been "sold". In the absence of any other evidence, I draw the inference that all of the stock in the stock list were art works which were recorded by Mr Gant for the purposes of identifying those items which he had either sold or was offering for sale.

194 The Plaintiffs relied upon the fact that Mr Gant did not give evidence to explain these entries in his stock list and did not submit himself to cross-examination upon it. They submitted that an inference should be drawn to the effect that, at least prior to indicating his preparedness to undertake not to sell the works in the future on the second day of the trial, that is precisely what he was intending to do.

195 On the other hand, it was submitted on behalf of Mr Gant that no such inference could or should be drawn. Although it was conceded that the disputed works had been returned to him, the stock list, it was said, went no further than evidencing the cataloguing the works in the course of normal business practice, and did not provide evidence that Mr Gant was intending to sell these works.

196 Notwithstanding the provisions of ss.149 and 149A of the Fair Trading Act which permit an injunction to be granted whether or not there appears to be a likelihood of future contravention, the likelihood of future repetition of contravening conduct is a relevant factor.

197 I am satisfied that, prior to an interlocutory injunction being ordered against Mr Gant in this proceeding, [103] there was a real risk that the art works in issue would have continued to have been offered for sale by him. If this was to have occurred, there would have been a real risk of further contravening conduct in relation to the forged art works.

198 If Mr Gant was to have sold or offered to sell these works he would more than likely have contravened s.9 of the Fair Trading Act and would have been liable to an injunction imposed upon him by the operation of ss.149(1)(a) or 149A(1)(a). To borrow the words of the Full Court in Saints Gallery: "Ordinarily, one would expect that a gallery owner who sold forgeries to a customer could hardly resist a claim under section 52 of the Trade Practices Act"[104] (the equivalent of s.9 of the Fair Trading Act).

199 Likewise, if Mr Gant's servants or agents were to have offered the works which have been found to be not authentic for sale, they would more than likely have been rendered liable for a contravention of s.9, and Mr Gant would, more than likely have been rendered liable to an injunction imposed upon him if he aided, abetted, counselled or procured his servants or agents to sell or offer to sell the works by the operation of ss.149(1)(c) or 149A(1)(c). Alternatively, if he was in any way directly of indirectly, and knowingly concerned in or a party to such conduct, he would have been liable to an injunction imposed upon him by the operation of ss.149(1)(e) or 149A(1)(e). He would also have been exposed to liability for damages if he was found to be involved in any sale of the works by operation of s.159(1).

200 As to the future, it may be thought that the position of Mr Gant would alter, upon the findings in these reasons as to the false provenance of the works in issue having been made, and upon the proposed declaration being pronounced. Indeed, this appears to be the intent of the undertakings which Mr Gant has indicated through his counsel he would be prepared to give to the Court.

201 Nevertheless, even if an injunction was granted in the negative terms sought by the Plaintiffs, or even if an undertaking was to be given by Mr Gant in like terms, this would not guarantee that the forged art works would not eventually make their way into the market place by any one of a number of quite innocent avenues. Any such injunction or undertaking, if granted or accepted on the terms sought, would in essence be limited to the sale, offering the works for sale, or possibly parting with possession of the works, and then only directed to the Second Defendant or his servants or agents. However, a number of events could occur whereby the works could enter the market place in a manner which was outside the purview of any injunction or undertaking. For example, if another person was to acquire the works upon the death of Mr Gant, there would be an ever present likelihood of the art works entering the market at some stage, but nevertheless in circumstances which give rise to loss and damage to the Plaintiffs and members of the public.

202 In my view, the only security which can be provided to the affected Plaintiffs and to members of the public is by making an order for the delivery up and destruction of the offending artworks.

203 Of relevance in determining to make such an order is the fact I have found that the forged works are of no value. This must be balanced against the not insignificant risk of the works re-entering the art market in the future, and the potential for the adverse consequences to the artists and members of the public which I have described.

204 In my opinion a proper exercise of the discretion requires that the forged art works should be taken out of circulation in the market place. In this case, the grant of an injunction to prevent further contravening conduct merits the making of a mandatory order for the delivery up and destruction of the artworks in issue.

205 If such an order was made, the need for the negative injunction directed to the Second Defendant, Mr Gant, and his servants and agents to restrain future contravening conduct, or an undertaking in lieu, would become unnecessary.

1. It is declared that the works which are the subject of this proceeding, being two works purported to be by the artist Charles Blackman, in this proceeding called "Street Scene with Schoolgirl" and "Three Schoolgirls", and one work purported to be by the artist Robert Dickerson, in this proceeding called "Pensive Woman" are not works by the hand of those artists and are fakes.
2. It is ordered that the fake art works be delivered up to the Plaintiffs to be destroyed by them within 7 days thereafter.
3. There be a stay on the operation of Order 2. for 30 days.

1. [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).

[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.

[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].

[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]).

[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]).

[10] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) pages 173-174.

[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.

[14] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) pages 186-187.

[16] Expert statement of Walter Granek dated 26 March 2010, paragraph 5.

[17] Expert statement of Walter Granek dated 26 March 2010, paragraph 9.

[18] Blackman and Ors v Gant and Anor [2010] VSC 109.

[20] Exhibit P15 - Letter from Mr Smith dated 27/11/2008 addressed to Andrew Sullivan of Heydon and O'Loghlen Lawyers.

[21] Exhibit P16 - email to Andrew Sullivan dated 18 February 2009 exhibited to the affidavit of Mr Smith sworn 16/3/2009.

[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.

[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.

[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.

[25] Exhibit P31 - Three reports of Associate Professor Sloggett.

[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.

[28] Christie's Catalogue for the exhibition "Modern and Contemporary Australian and South African Art", London, 16 December 2008, Lot 37. Exhibit D3.

[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.

[30] Felicity St John Moore "Charles Blackman - Schoolgirls and Angels", National Gallery of Victoria, 1993 [Exhibit P42]).

[31] The curriculum vitae of Felicity St John Moore is Exhibit P37.

1. [35] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 25 March 2010) page 278 lines 19-31; page 279 lines 1-6.

[37] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010), page 73 lines 18-22.

[38] Exhibit D1 - Photograph of the work depicted as Mr Dickerson's work.

[40] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010), page 71 lines 12-18.

[42] Exhibit P11 - Artwork identified by Mr Dickerson, entitled "Harmony".

[43] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010), page 71 line 31; page 72 lines 1-17; 19-21.

[44] Exhibit P12 - Letter of Mr Dickerson dated 22/8/2008.

[46] Ibid lines 22-31; page 78 lines 1-3.

[47] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010) page 80 lines 3-4; 14-16; 17-20.

[48] Paragraph 4 of Nall's affidavit sworn 13 November 2008.

[49] Mr Nall states earlier in his affidavit dated 13 November 2008 that "In 2006 a drawing purported to be created by Dickerson was listed for sale in a Deutscher Menzies art auction in 2003 entitled 'Pensive Girl'. Mr Dickerson says that his signature on that drawing was forged and that the drawing was not his".

[50] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) page 151 lines 26-31.

[51] Ibid lines 19-31; page 152 lines 1-5.

[52] Affidavit of Stephan Nall dated 13 November 2008 paragraph 13.

[53] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 29 March 2010) pages 325-330.

[54] Affidavit of Stephan Nall dated 13 November 2008 paragraphs 2 and 3; 17-18.

[57] Exhibit P32 - Power of Attorney of Charles Blackman dated 7 October 1993.

[58] Affidavit of Tom Lowenstein dated 12 November 2008 paragraphs 6-9.

[59] Affidavit of Tom Lowenstein dated 12 November 2008 paragraphs 1 and 2.

[60] Affidavit of Tom Lowenstein dated 12 November 2008 paragraphs 6-9.

[61] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010), page 74 lines 12-14.

[63] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 29 March 2010) page 336 line 7.

[64] See: MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) FCR 236 per Lindgren J

[65] A similar approach was taken by the trial judge in The Saints Gallery Pty Ltd v Plummer ("Saints Gallery"), as noted by the Court of appeal in New South Wales [1988] FCA 213; (1988) 80 ALR 525 at 41

[66] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) page 147 lines 21-26.

[67] [1988] FCA 213; (1988) 80 ALR 525.

[68] Morling, Pincus and Burchett JJ at 526.

[69] [1988] FCA 213; (1988) 80 ALR 525.

[70] [2010] VSC 59 at [61]-[75].

[71] [1992] HCA 10; (1992) 175 CLR 564 at 581-582.

[72] Citing Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 per Gibbs J at 437.

[73] Justice of the Federal Court of Australia, as he then was; now Chief Justice of the High Court of Australia.

[74] (Speech delivered at the Perspectives on Declaratory Relief forum, University of Western Australia Faculty of Law, 30 November 2007), p.2.

[76] Ibid at p.2. See also: Young PW, Declaratory Orders (2nd ed, Butterworths, 1984) p 214.

[81] Ibid, Justice French , Perspectives on Declaratory Relief at p.4.

[82] Blackman and Ors v Gant and Anor [2010] VSC 109.

[83] See: s.149(2)(a) and s.149A(2)(a) Fair Trading Act 1999 (Vic).

[84] See: ACCC v Oceana Commercial Pty Ltd [2004] FCAFC 174 at [187] per Heerey, Sundberg and Dowsett JJ.

[85] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 23 March 2010) page 50.

[86] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 25 March 2010) page 231 lines 28-31, page 232 lines 1-2.

[87] (1981) 148 CLR 150 at 163 and 165 per Gibbs CJ, Stephen, Mason and Wilson JJ.

[88] Director of Consumer Affairs Victoria v Midas Trading (Australia) Pty Ltd [2009] VSC 141 per Habersberger J at [58].

[89] See: (1981) 148 CLR 150 at 162 per Gibbs CJ, and Stephen, Mason and Wilson JJ.

[90] (1977) 16 ALR 181 at 186.

[91] [1978] HCA 60; (1978) 23 ALR 69.

[93] [1992] FCA 474; (1992) 110 ALR 47 at [56]-[57].

[94] Lockhart J, with whom French J agreed and Gummow J generally agreed.

[95] [1997] FCA 871; (1997) 78 FCR 197.

[96] [1999] FCA 18; (1999) 161 ALR 79 at 89 [23].

[97] [2005] FCA 152; [2005] 215 ALR 482 (cited with approval in Foster v ACCC [2006] FCAFC 21; [2006] 149 FCR 135).

[98] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) page 172 lines 1-3.

[99] Transcript of Proceedings, Blackman and ors v Gant and anor (Supreme Court of Victoria, Vickery J, 24 March 2010) pages 146-152.

[100] [1959] HCA 8; (1959) 101 CLR 298.

[102] Exhibit P1 was admitted absolutely.

[103] An interlocutory injunction was ordered by Hansen J dated 24 November 2008

[104] The Saints Gallery Pty Ltd v Plummer [1988] FCA 213; 80 ALR 525 at 526.