Freehills secures successful outcome in Archibald Prize case

In 2004, first-time entrant Craig Ruddy won the Archibald Prize and the People's Choice Award for his portrait of actor David Gulpilil entitled ‘David Gulpilil – Two Worlds’.

In June another entrant in the 2004 Archibald Prize, Tony Johansen, commenced proceedings against the Art Gallery of NSW Trust alleging that Ruddy's entry was not valid as it was not ‘painted’. Johansen argued that Ruddy’s use of materials which included charcoal mixed with varnish, technique including a use of line-work, and colour was a drawing rather than a painting and therefore ineligible for the prize.

The Supreme Court case heard Johansen’s argument that a clear distinction exists between a work which was ‘drawn’ and a work which was ‘painted’, with modern and early-Twentieth Century dictionary evidence provided in an attempt to support this distinction.

During the two-day hearing Ruddy gave extensive evidence, delivered in both affidavit and oral form, of how the work was conceived and the process and materials he employed to create the work. The Art Gallery of NSW Trust retained Elizabeth Churcher, a former head of the National Gallery of Australia, as an expert witness. Churcher provided evidence on the nature of the artist’s technique and classification of paintings.

Freehills partner Kathryn Everett who lead the team said it was an interesting case to work on.

‘Working with expert witness Elizabeth Churcher, an inspirational woman with extraordinary knowledge of art history, was unique and fascinating.’

‘Taking an affidavit from artist Craig Ruddy and learning about the creative process of art was also a wonderful experience,’ she added.

At the hearing’s conclusion Justice John Hamilton reserved judgment, then delivered his decision two weeks later. Justice Hamilton found in favour of the Art Gallery of NSW Trust and Ruddy, ruling that the court was not required to interfere with the decision of the trustees because the work could not be excluded from the category of works which had been painted.

‘Given that the Judge clearly indicated that qualities of works of art were matters better left to the Trustees’ discretion we hope that this decision will see the end of such challenges and allow the Archibald Prize to continue as a great showcase for contemporary portraiture,’ she said.

The Freehills team also included Angus Lang, Helen Macpherson, Aviva Beck and Ben Cameron.

For more information please contact

Holly Parry
Assistant Public Affairs Manager
holly.parry@freehills.com
+61 2 9225 5774
+61 414 345 774