Blackman & Dickerson v Gant Supreme Court of Victoria Action No. 9785 of 2008

Novel claims

Three artworks are at the centre of Supreme Court proceedings that raise questions of whether the Fair Trading Act 1999 (Vic) will extend to claims that valuations and sales of "fake artworks" constitute misleading or deceptive conduct in the course of trade or commerce.

Background

In late 2008 the artists Charles Blackman and Robert Dickerson commenced proceedings for permanent injunctions preventing the owners of two Melbourne art galleries, Gretz Gallery and Peter Gant Fine Art, from selling what the artists claim are fake artworks attributed to them. The works are signed with the names of the artists and, it is claimed, were held out by the gallery owners (impliedly or otherwise) as authentic works. The artists claim the works are "fakes" and seek orders for the delivery up of the works for destruction and damages.

The artists contend that Peter Gant (the owner of Peter Gant Fine Art in Carlton) valued and sold an art work named Street Scene with Schoolgirl as a work of Blackman, although it was not created or signed by the artist. The buyer of that work returned it to Gant who refunded its purchase price after an expert viewed the work and suggested that it was not authentic. It is claimed that Gant subsequently supplied and valued the same work together with a second contentious work named Three Schoolgirls as works of Blackman to Gretz Gallery in Albert Park, owned by Helen Stewart. The Gretz Gallery then sold the two "Blackmans" on to Robert Blanche on behalf of Baymanta Pty Ltd ("Baymanta").

Gant allegedly sold another work named Pensive Woman directly to Mr Blanche on behalf of Baymanta. Valuations of the work were also provided by Gant as part of this transaction. The artists claim this work was held out to that of Robert Dickerson, when it was not made or signed by the artist. In 2008 Mr Blanche showed the works to the expert who had first questioned the provenance of Street Scene with Schoolgirl. He gave an opinion that the two "Blackmans" were not by the artist, and referred Blanche to Stephen Nall, an expert on the works of Dickerson, concerning the authenticity of Pensive Woman. The expert opinion was that Pensive Woman was not a work of Dickerson.

Status of proceedings and legal issues

Proceedings were commenced in November 2008. Since then the artists have settled out of court with the First Defendant, Helen Stewart of Gretz Gallery, on undisclosed terms. The matter remains on foot against Gant after the parties attempted, unsuccessfully, to resolve the dispute by mediation earlier this year.

Two categories of representations made by Gant are claimed to be "misleading or deceptive" for the purposes of s 9 of the Fair Trading 1999 (Vic). Firstly, the provision of the valuations of the artworks by Gant which the artists claim impliedly represented that each of the artworks were authentic and not fake works. This raises questions of whether the valuations in particular were "misleading" or made in the "course of trade or commerce" for the purposes of the consumer protection provisions. There are property valuation cases that may be useful comparative authorities on this point.

Secondly, that Gant made an implied representation that the "fake Dickerson" was authentic by selling the Pensive Woman to Mr Blanche on behalf of Baymanta. For this claim to be successful the artists will need to demonstrate that the sale of Pensive Woman carries the implied representation that the work was in fact authentic. The artists will place reliance upon expert opinion evidence to establish the works as "fake".

A similar situation was considered by the Federal Court in The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 in a claim run under s 52 of the Trade Practices Act 1974 (Cth). In that case Saints Gallery sold work works on consignment to Plummer, who had previously valued and authenticated works on occasion for the Gallery. The Saints Gallery relayed to Plummer anecdotal provenances for the four paintings before purchase, as told to the Gallery by the consignor. On appeal it was determined that the Saints Gallery had not engaged in misleading or deceptive conduct. Important to this finding was that the Court found (1) there was no basis to conclude that the Saints Gallery had any positive knowledge of the provenance of the works other than that related to Plummer; (2) it was apparent that the Saints Gallery was not the source of the information on provenance; (3) it disclaimed any belief in the truth or falsity of the works' "histories", merely passing it on for what it was worth; (4) Plummer placed no reliance on the Gallery owner's ability to judge the authenticity of the paintings.

A trial date for Blackman & Dickerson v Gant has been scheduled for late March, 2010.