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Portrait of a litigator
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Portrait of a litigator

A CHANCE to learn things you would not normally learn about in a court case, was how Kathryn Everett, an IP partner with Freehills, described her recent work for Archibald Prize-winning artist…

A CHANCE to learn things you would not normally learn about in a court case, was how Kathryn Everett, an IP partner with Freehills, described her recent work for Archibald Prize-winning artist Craig Ruddy.

The artist, who won the Prize in 2004 for his portrait of David Gulpilil as well as the People’s Choice Award, had his success challenged in the NSW Supreme Court by unsuccessful entrant Tony Johansen.

Johansen, represented by Maloney Lawyers, took legal action against the Art Gallery of NSW Trust over the portrait, on the grounds that Ruddy had predominantly used charcoal in the work — making it a drawing, not a painting.

However, Justice John Hamilton dismissed the claim last Wednesday, saying he found it impossible to exclude the portrait from the category of a work that had been painted. He ruled that the matter should be left to the discretion of the Art Gallery’s trustees, who judge the prize.

Everett said the case focused on a “narrow, specific point” and was not technically difficult. “It was a fascinating case but not difficult. We had a fantastic client, great counsel working with us, and great witnesses.”

This point, she said, was not something that had been decided before, but the unique aspect of the case was an opportunity to take expert evidence from people such as art historian and gallery director Betty Churcher, whose usual podium is not a witness stand.

“The Judge indicated that these matters were not appropriate for a court to decide,” Everett said.

“The decision leaves [the trustees] with a wide discretion to determine what is a ‘painting’.”

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