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

Blackman & Ors v Gant & Anor [2010] VSC 229 - VSC 2010 case summary — Zoe

[80]

.... 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]

[104]

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.

[221]

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.

[264]

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".

At a glance

Court

Decision date

Before

Source

Judgment (371 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)