Anderson v Dunlop & Ors [2009] QMC 14

MAGISTRATES COURTS OF QUEENSLAND CITATION: Anderson v Dunlop & Ors [2009] QMC 14 PARTIES: JUSTIN ANDERSON (applicant) v RICHARD DUNLOP (first respondent) GOLD COAST CITY ART GALLERY PTY LTD (second respondent) MICHAEL JOHNSON (third respondent) FILE NO/S: MAG231600/08(6) DIVISION: Magistrates Courts PROCEEDING: Application to declare owner ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 2 March 2009 DELIVERED AT: Brisbane HEARING DATE: 13 February 2009 MAGISTRATE: Lee G ORDER: I declare the owner of the artist’s book titled “plucked hair from beards” by Shelagh Gwynne Morgan to be Dr Richard Dunlop. I order it be returned to him. I declare the owner of “nine laser copies with the subject being Matadors with print indicating the author to be Steven Carson” to be Dr Richard Dunlop. I order they be returned to him. I declare the owner of “four lithographs on paper by Timothy Michael Johnson” to be Dr Richard Dunlop. I order they be returned to him. CATCHWORDS: PERSONAL PROPERTY – OWNERSHIP AND POSSESSION - Police rights, powers and duties – search, seizure and detention of property – where there is a dispute between two or more persons as to ownership after criminal proceedings concluded - declaration as to -- 1 of 18 -- 2 ownership PRACTICE AND PROCEDURE – INITIATING PROCEDURES – where mode of application pursuant to section 694 Police Powers and Responsibilities Act 2000 not specified – whether provisions of the Uniform Civil Procedure Rules 1999 apply Justices Act 1886, s 39 (repealed), s 110A(5)(c)(i) & (ii) Oaths Act 1867, s 41 Police Powers and Responsibilities Act 2000, s 687(a), s 694 Police Service Administration Act 1990, s 4.10, s 4.8(1) & (4) Uniform Civil Procedure Rules 1999, r 10, r 17, r 19, r 26, r 35(1), r 39, r 390(b), r 430(1), r 432(1), r 435(5) & (6), r 439(2), r 440 Stephens v Williams [2008] QDC 320, referred to COUNSEL: Cox (Sergeant) for applicant First respondent appeared on own behalf SOLICITORS: Police Prosecutions for applicant First respondent appeared on own behalf [1] Three separate applications1 have been brought by Detective Sergeant Justin Anderson of the Queensland Police Service (“the applicant”) pursuant to section 694 of the Police Powers and Responsibilities Act 2000 (“the Act”) in relation to the contested ownership of three different pieces of artwork seized under a warrant by police on 12 August 2005 from premises at 122 Fifth Avenue Windsor which was the residence at the time of Dr Richard Dunlop, the respondent in these applications. [2] The items of artwork are described as follows: Artists book titled “Plucked hair from beards” by Shelagh Gwynne Morgan; Nine laser copies with the subject being Matadors with print indicating the author to be Steven Carson; Four lithographs on paper by Timothy Michael Johnson; 1 All filed 28 November 2008; -- 2 of 18 -- 3 [3] The hearing was conducted on 13 February 2009 and I reserved my decision. Sergeant Cox appeared for the applicant and the respondent appeared on his own behalf. [4] Each of these applications will be dealt with shortly seriatim. But first there are some preliminary matters of concern. Legislative Scheme and matters of concern [5] Section 694 is contained in Division 2 (Return of relevant things) Part 3 (Dealing with things in the possession of police service) in Chapter 21 of the Act (Administration). It provides: 694 Application by police officer for order if ownership dispute (1) This section applies if there is a dispute about the ownership of a relevant thing, whether the dispute is between— (a) two or more persons, each of whom claims to be the owner of the thing; or (b) a police officer and a person who claims to be the owner of the thing. (2) A police officer may apply to a magistrate for an order declaring who is the owner of the thing. (3) The police officer must give anyone the police officer reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place fixed for hearing the application. (4) The magistrate may make the order the magistrate considers appropriate. (5) If the magistrate can not decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing [6] For the purposes of Chapter 21 Part 3 “relevant thing” is relevantly defined as a thing lawfully in the possession of the police service because it was seized by a police officer (section 686(1)(a)). The items of artwork above are things that are lawfully in the possession of the police service having been initially seized by the applicant in the execution of a warrant. [7] In terms of subsection 694(1)(a), in this case there are two persons who claim to be the owner of the respective items the subject of these applications. -- 3 of 18 -- 4 [8] The applicant has applied under subsection 694(2) of the Act seeking declaratory orders as to ownership. As the Act does not state the type of originating process to be used, then the proceedings should be started by way of an application under the Uniform Civil Procedure Rules 1999 (“UCPR”): see rules 8(2) & 10. Rule 10 provides: 10 Application compulsory A proceeding must be started by application if an Act or these rules require or permit a person to apply to a court for an order or another kind of relief and— (a) the Act or rules do not state the type of originating process to be used; or (b) …… [9] It was not contested at the hearing that the provisions of UCPR apply to these applications. I agree. That being so, it is important to comply with all of the UCPR. For example, rule 17 provides that it is mandatory to specify “on the originating process” itself the applicant‟s residential or business address (r 17(1)(a)(i)) which is the applicant‟s address for service for the purposes of the proceeding (r 17(6)(a)(ii)). By attaching to an application an accompanying letter or a business card with an address on it is not sufficient. It is also mandatory for an applicant to sign the application (r 19(1)) and to name as respondents all persons directly affected by the relief sought (r 26(2)). The material discloses that the persons directly affected by the relief sought are the persons alleging ownership of the items i.e. Dr Richard Dunlop in all three applications and respectively the Gold Coast Gallery Pty Ltd, Steven Jon Carson and Timothy Michael Johnson. Contrary to the rules, the applicant in this case has not signed his applications and has not named the respondents in those applications. [10] Another rule not strictly complied with is rule 26(4) which provides that an application itself must list the affidavits to be relied on at the hearing. Then, rule 390(b) provides that evidence in a proceeding started by application “may only be given by affidavit”. An affidavit is a document which is sworn or affirmed in accordance with rule 432 UCPR2. 2 The rules as to affidavits are contained in Part 7 (“Affidavits”) of Chapter 11 (“Evidence”) UCPR; -- 4 of 18 -- 5 [11] The applicant has sworn an affidavit for each application and then exhibited copies of statements (not originals) from various witnesses originally prepared some years ago for admission in committal proceedings under section 110A Justices Act 1886. The written statements here were made in compliance with section 110A(5)(c)(ii) Justices Act 1886 in which they could only be admitted in committal proceedings if they were signed by the person making them and contained “a written acknowledgement by the person that it is true to the best of the person‟s knowledge and belief”3 etc. These statements it would appear are not sworn or affirmed documents as required by the UCPR4. One can contrast this with section 110A(5)(c)(i) Justices Act 1886 in which the person making the statement at least makes a declaration under the Oaths Act 1867. Those witnesses should have sworn or affirmed fresh affidavits in accordance with the UCPR and originals of those affidavits should have been filed with the applications and listed in those applications. [12] I will deal with how I treat each of those statements later in these reasons. [13] Further, I note that the applicant and respondent have not strictly complied with the rules relating to the swearing of their own affidavits and related matters. For example, they have not signed each and every page of their affidavits5 (r 432(1)), and either have not numbered their exhibits or their exhibits do not contain a signed certificate in accordance with rules 435(5) & (6)6. [14] However, as the matters in paragraph [13] were not raised as an issue in these proceedings by the applicant and respondent, I will proceed on the basis of considering the content of the body of applicant‟s and respondent‟s affidavits in their present form subject to the usual rules of evidence and subject to my comments at paragraphs [11] & [12] above regarding the statements from witnesses exhibited to the applicant‟s affidavits. While the court in its discretion can consider the body of the affidavits in their current form, it is to be exercised cautiously and sparingly. In doing 3 The statement of Andrew John Walsh does not even contain the written acknowledgement under section 110A(5)(c)(ii) – the fourth page of the statement has not been filed in the court; Further, the statement of Steven Jon Carson at page 5 contains an “acknowledgment box” which has not even been signed; in fact that statement has not been signed at all; 4 See also section 41 Oaths Act 1867 listing those persons qualified to “take” affidavits; they do not include police officers unless of course they happen to fall into one of the categories; 5 Although the applicant has done so in one application relating to the nine laser copies of the Matadors; 6 Although the respondent has done so in his affidavit sworn 24 January 2009 and filed by leave at the hearing; it was taken by a solicitor in Victoria. -- 5 of 18 -- 6 so I am mindful of the necessity of expeditiously resolving these matters given the length of time these items have been in police custody, the relative value of them and the fact that the respondent has incurred expense in travelling to Brisbane from Melbourne for the hearing. I understand he was to return to Melbourne on 13 February 2009. However, the rules should ordinarily be complied with in the normal course. [15] It is further noted that as this is an application for a final order the usual rules of evidence apply. Rule 430 (1) UCPR provides: 430 Contents of affidavit (1) Except if these rules provide otherwise, an affidavit must be confined to the evidence the person making it could give if giving evidence orally. ….. [16] For example, hearsay evidence is inadmissible including evidence not within the personal knowledge of the witness concerned, even in civil proceedings such as this. The fact that a witness may adopt his statement in the witness box does not make that material admissible unless it complies with the rules of evidence. [17] Another preliminary matter not expressly addressed by either party in their material or at the hearing is the jurisdiction of this court to entertain these applications. [18] Part 6 (Where to start a proceeding) of the UCPR governs, among other things, the geographical jurisdiction of the Magistrates Court and in particular Divisions 2 & 3 (rules 34 to 42). Rule 35(1) provides a list of circumstances in which a proceeding can be commenced in a particular court district (paragraphs (a) to (f)) including the district in which the respondent resides or carries on business (para (a) or the district in which all or part of the claim arose (para (e)). It is apparent from the applicant‟s affidavits that the art works in question were seized from premises at [address] which is located in the Brisbane Magistrates Court jurisdiction. I accept that these applications have been brought in the correct jurisdiction in accordance with paragraph (e) of rule 35(1). [19] In any event, the respondent has not raised any objection to the jurisdiction of this court to entertain the applications in accordance with rule 39(1)(b) and by rule -- 6 of 18 -- 7 39(2), even if it were so minded, the court is precluded from deciding on its own motion that the applications should have been started in another district. [20] The final preliminary matter is that prior to the start of the hearing on 13 February 2009 I drew to the attention of the parties, and then provided copies to them of the judgement of His Honour Robertson DCJ in Stephens v. Williams [2008] QDC 320 (delivered 19 December 2008) regarding contested ownership of a stolen motor vehicle. As his Honour observed at paragraph 29 of his reasons, there appeared at that time to be no developed jurisprudence in respect of section 694 applications although there had been regarding repealed section 39 Justices Act 1886. His Honour has then provided a very useful analysis of section 39 as to the meaning of “owner” and that it can be, depending on the circumstances of the case, anything from absolute owner to ownership by possession. His Honour adopted that approach in that case. Application for adjournment by Applicant [21] Prior to the start of the hearing the applicant requested an adjournment. The respondent (Dr Dunlop) wished to rely on an affidavit by him together with exhibits including select transcripts of committal proceedings. The applicant submitted that he had not been served with that material. In opposing the adjournment the respondent submitted he posted that material to the applicant on 24 January 2009 at the address on correspondence from the applicant and on the applicant‟s business card stapled to his applications. There was no dispute that this was the applicant‟s postal address. He also posted a set of those documents to the court. A court stamp shows that the court received an envelope from the respondent post marked 24 January 2009 containing this material on 2 February 2009, 11 days before the scheduled hearing. I accepted that the respondent had posted this material to the applicant on 24 January 20097 and I inferred that this material would have been received at the applicant‟s postal address on or about the same date that the court received its envelope from the respondent. As no adequate explanation was given as to why the applicant had not collected his mail and that the respondent had flown up from Melbourne for this matter, I refused the adjournment and granted leave for it to be filed. However, I arranged for photocopies to be made and stood the matter down to afford the applicant and Sergeant Cox 7 See paragraph 3 of the respondent‟s affidavit sworn 24 January 2009 and filed by leave; -- 7 of 18 -- 8 sufficient time to consider it. Upon resumption, Sergeant Cox then proceeded with the hearing of the applications by calling his first witness, the applicant. [22] In that material the respondent requested among other things that all witnesses be available for cross examination. This request was served at the applicant‟s address for service on or about 2 February 2009 well within the time required by the UCPR (see rule 439(2)), namely “at least one business day” before the hearing date of 13 February 2009. However, despite not having actually received this request, for reasons best known to the applicant, the applicant unilaterally decided to make available only three witnesses out of the six that gave statements i.e. Andrew John Walsh, Steven Jon Carson and Timothy Michael Johnson (by phone) in circumstances where arguably the evidence of at least two witnesses not called is the most contentious8. While the applicant has not complied with the UCPR by providing a proper address for service in his applications, doing the best I can to remedy this state of affairs with a view to expeditiously disposing of the matter9, I come to the view that, for the purposes of these proceedings, the applicant was sufficiently served with this material on or about 2 February 2009. As such, in my view the statements of the other three witnesses ought to be excluded not only on the ground that they were not made available at the hearing, but also on the ground specified in paragraph [11] above. The statements to be excluded are by Shelagh Gwynne Morgan, Scott David Whitaker and Peter James Bellas. [23] I now turn to each application. Artists book titled “Plucked hair from beards” by Shelagh Gwynne Morgan; [24] Curiously, the application seeks a declaration that this item is owned by the Crown. In fact, the thrust of the case in the filed material and at the hearing was that the Gold Coast Gallery was the owner. I will proceed on that basis. [25] The applicant deposes at paragraphs 1 to 4 and 6 in his affidavit that he executed a search warrant on 12 August 2005 at [address], the then residence of the respondent. A large number of artwork was seized including a book entitled “plucked hair from 8 Although generally, deponents are not required under UCPR to be called unless the opposing party has requested it or if the court otherwise orders; 9 And having regard to the relatively low value of the items and the expense for the respondent in flying from Melbourne to Brisbane for this application; -- 8 of 18 -- 9 beards” by Shelagh Morgan. The respondent was arrested and charged with offences on 31 July 2006 relating to this artwork. It is not disputed that at the committal proceedings the prosecution offered no evidence on the charge or charges relating to this artwork in or about September 2008 (paragraph 11 of the applicant‟s affidavit). [26] At paragraph 5 of his affidavit the applicant states that, together with another officer he obtained a statement from Shelagh Gwynne Morgan. The rest of that paragraph states what Morgan has said. This is hearsay and this evidence is excluded. [27] In Paragraph 7, the applicant states that he obtained a statement from Andrew John Walsh on 5 September 2006. Again what follows is hearsay evidence as to what Mr Walsh told him. The balance of paragraph 7 is excluded. For the same reasons, paragraphs 8, 9, 10 and 12 of the applicant‟s affidavit are excluded. The applicant deposes to things which Mr Walsh has said or allegedly done and this is clearly hearsay. Where Mr Walsh is said to have checked the stockroom (paragraph 8) and made a search (paragraph 9), the applicant does not state that he was present during those activities so as to establish personal knowledge of those matters. [28] In support of this application, the applicant has provided statements of Shelagh Gwynne Morgan dated 10 October 2005 and Andrew John Walsh dated 5 September 2006. These are not affidavits as previously observed but merely statements prepared for the purposes of “hand up” committal proceedings under the Justices Act 1886. Mr Walsh was called to give evidence but Ms Morgan was not. Mr Walsh was cross examined. [29] In evidence in chief, Mr Walsh confirmed his statement dated 5 September 2006 to be true and correct. This is the statement that was filed as an exhibit to the applicant‟s affidavit omitting the last page (page 4). He has been the gallery manager of the Gold Coast Art Centre Pty Ltd since July 1996. He does not depose to having worked at that gallery before then nor has he given any explanation for the basis of his knowledge of the gallery or activities of the gallery prior to 1996. In fact, he has not described the nature or scope of his responsibilities with the gallery other than describing himself as manager so as to establish a foundation for being able to give evidence on the gallery‟s operations. In particular, his statement is silent as to whether or not the systems or practices of the gallery changed in 1993 when it changed from -- 9 of 18 -- 10 being a division of the Gold Coast City Council and taken over by Gold Coast Art Centre Pty Ltd. This is important because it is alleged by Ms Morgan that the gallery “acquired” this artwork in 1992. Further, as the Gold Coast City Art Gallery Pty Ltd appears to be the “person” claiming ownership, Mr Walsh has not expressly indicated his authority for giving evidence on its behalf although this might be inferred. [30] Mr Walsh acknowledges that 1991 was prior to his employment at the gallery (paragraph 4 of his statement). He simply makes assertions about what had happened back then without providing any explanation as to how he came by that information. [31] Similarly, in paragraph 5, he simply says that he is “aware” of certain things. But this is before his employment with the gallery and he does not say how he acquired that knowledge. It maybe that he had regular dealings with the gallery before he was employed there but this is mere speculation. However, in my view I can infer that he had consulted the gallery‟s records because he has itemised in paragraph 5 the participating galleries and the dates they participated in the exhibition of this artwork. He describes the works of Ms Morgan together with six other artists who were involved in the “South Stradbroke Island‟ project back in 1991. The exhibition “South Stradbroke Project” was exhibited at a number of galleries firstly in Queensland and New South Wales. [32] Mr Walsh says that Ms Morgan‟s works have never been displayed since he has been employed at the gallery. After locating the display box which housed Ms Morgan‟s original five artist‟s books and after looking at photographs of the works, he states that one book is missing. The gallery‟s records show that all five artist‟s books and postcards were in that display box, that there is only reference to a postcard going missing on tour, and that the five books were returned to the gallery on 15 June 1993. But this statement is somewhat weakened in the answers Mr Walsh gave in cross examination by Byrne QC at the committal which I will refer to later. [33] Then the exhibition went to Noumea from 19 August 1993 to 31 October 1993. However, Mr Walsh says that there are no records relating to that leg of the tour. [34] Therefore, by reference to the gallery‟s records Mr Walsh cannot say that all five books returned to the gallery from Noumea. The other point is that in concluding that one book was missing by reference to photographs of the five books, he does not say -- 10 of 18 -- 11 when those photographs were taken. Were they taken before or after the Noumea tour or at some other time? [35] In paragraph 13 Mr Walsh asserts that he can see no reason why Dr Dunlop should be in possession of this book as it forms part of a set. He states to his knowledge that neither he nor any employee of the gallery would have given anyone permission to take this book. However, he has only been employed there since 1996. He can‟t give any evidence as to what occurred prior to then except by reference to records. He doesn‟t know if the whole set returned from Noumea and, even assuming that they had returned from Noumea, he has not deposed in any detail as to how he has come to the view that no-one in the gallery prior to his employment there would not have given permission to take the book or to sell it other than it was part of a set. [36] Further, during cross examination by Bryne QC at the committal (pages 87 & 89 transcript exhibited to the respondent‟s affidavit) Mr Walsh was asked about the gallery‟s records and whether they indicate the arrival of art items at the various galleries on tour in 1993. In particular, he agreed that there was no record of what had arrived at the Gold Coast after the Brisbane exhibition (line 12 page 89) and there was no record of what then went to Noumea from the Gold Coast in 1993 either (lines 12 – 30 page 89). In my view, this further diminishes the weight to be given to Mr Walsh‟s statement given in these proceedings in attempting to show that the Gold Coast Gallery still legitimately owns this book after such a long period of time. [37] I can deal with Ms Morgan‟s statement in this way. Even if I were not to exclude it for reasons outlined in paragraph 11 above, it appears that all she can say is that she was the artist of the work “Plucked hair from beards” which was part of a set, that she was one of the artists that participated in the “South Stradbroke Project” and that the Gold Coast gallery acquired the entire works of all artists in 1992 for about $3,000. She has not seen those works since that time. She estimates the current value of the book “Plucked hair from beards” to be $800 but would not expect it to be sold on its own. In my view, this falls far short in proving that the Gold Coast gallery now owns the book after such a protracted period of time. While she would not expect the book to be sold as part of a set, this does not deal with scenario that it was not returned from Noumea or that, contrary to expectations, it was in fact sold by someone either -- 11 of 18 -- 12 in Noumea or at the gallery prior to 1996 when Mr Walsh commenced employment there. It appears the gallery‟s records are not complete. [38] The respondent has deposed in paragraph 10 of his affidavit that he purchased the book in 1995 at the “Church Hall” in Paddington and paid $5 for it. He was not aware at that time that it was part of a set. Sergeant Cox was invited to cross examine Dr Dunlop by me twice but he declined to do so. As such, in the absence of cross examination, this evidence was not tested and unless there is some other compelling reason not to accept that sworn affidavit evidence, it ought to be accepted. I note that Dr Dunlop says that now he is aware the book is part of a set, he has indicated a willingness to donate it to the gallery under the Commonwealth Government‟s Cultural Gifts Program. [39] On balance, pursuant to section 694(2) of the Act I declare the owner of the work “Plucked hair from beards” to be Dr Richard Dunlop. [40] Given that this application has now concluded, it is reasonable to observe that the applicant has now discharged the commissioners‟ obligation10 of making reasonable inquires and efforts to locate other claimants under section 688(4)(a) of the Act. Having regard to the object of Part 3 of the Act, namely that a “relevant thing” is to be retained by the police service only for as long as is reasonably necessary11 and the duty of the commissioner to “facilitate [the item‟s] lawful disposal to its owner ...” under section 688(4)(b), I would expect that the applicant will prioritize his duties under the Act and return the item to the respondent without delay. Nine laser copies with subject being Matadors with print indicating the author to be Steven Carson [41] As with the previous application, this application seeks a declaration that this item is owned by the Crown. In fact, the thrust of the case in the filed material and at the hearing was that an artist by the name of Steven Jon Carson was the owner. I will proceed on that basis. 10 Presumably under delegation pursuant to section 4.10 Police Service Administration Act 1990; see also section 4.8(1) & (4)(b) of that Act as to the range of “prescribed responsibilities” that can be delegated; 11 See section 687(a) of the Act; -- 12 of 18 -- 13 [42] For reasons given in relation to the previous application, I exclude all hearsay evidence contained in the applicant‟s affidavit: most of paragraphs 5 & 7, all of 6 & 10. During cross examination, the applicant conceded that an officer by the name of Bishop conducted the inquiries referred to in paragraph 10. This evidence by the applicant and not Bishop is obviously hearsay. [43] As with the artwork in the previous application, this art work was seized on 12 August 2005 and the respondent was charged. It is not disputed that no evidence was offered by the prosecution on the charge or charges relating to this artwork at the committal proceedings held in or about September 2008. [44] The applicant relies on the evidence of two witnesses given by statements exhibited to the applicant‟s affidavit – Steven Jon Carson (an artist) which is unsigned and Scott David Whitaker (co-owner of Doggett Street Studio at Newstead) dated 18 July 2006. Mr Carson was called to give evidence and was cross examined. Mr Whitaker was not called to give evidence and was not available for cross examination. [45] In evidence in chief Mr Carson swore that the contents of his unsigned statement exhibited to the applicant‟s affidavit to be true and correct. He was cross examined. [46] The effect of Mr Carson‟s evidence is that he has known the respondent in the period 1989 to 1998. He says that the images seized from the respondent by police were from his series he produced in the period 1994 to 1996. He colour laser copied them for an exhibition in 1997 at Doggett Street Studio at Newstead (paragraph 5). He gave an account of his methodology in producing about 1,000 photographs of which only a very few were ever exhibited (paragraph 8). [47] He recalls having the colour laser copies made in 1997 to accompany his “Wrestle” exhibition at Doggett Street Gallery. They were left in a catalogue for reference for prospective collectors but not actually exhibited (paragraph 12). Mr Carson said nothing was sold from the “Wrestle” exhibition which took place in the period 18 July 1997 to 5 August 1997. He collected all items from the gallery except the laser copies which were left in Doggett Street Gallery‟s stock room collection. He then took his works to Hobart except for the colour laser copies which remained at the Doggett Street Studio. While he does not specifically say so, it appears that Mr Carson has not -- 13 of 18 -- 14 seen the laser copies since he moved to Hobart in 1998 except for the purposes of current proceedings. [48] Mr Carson stated that while he did not exhibit the laser copies found in the respondent‟s possession, he said “it is obvious that they are mine due to the distinctive imagery that they contain”. I take this statement to be a focus on the fact that he was the creator of that artwork rather than owner. In coming to this conclusion, he said the works are identified in a number of ways: (1) a type written text at the bottom attributing them to him; (2) they are numbered in a series from 1/9 to 9/9 – a full set; (3) his name is written in the style of his hand writing but he says it is not his handwriting on the basis that he “believe[s] that this has been copied from one of the cards I had sent Richard Dunlop” (paragraph 11). That last statement is not a statement of fact and it is more likely to be a mere suspicion rather than a belief. I attach little weight to it as he does not explain when he allegedly sent those cards and the circumstances surrounding it and he does not explain the foundation for that “belief”. Further, it seems to suggest some impropriety on the part of the respondent without laying a proper foundation for it. In my view, an assertion made in this way coupled with what follows in these reasons has tarnished his evidence to an extent. [49] He goes on to say that “most works I have sold feature my signature” which is distinct from his handwritten name as shown on the laser copies in the respondent‟s possession. However, he does not say that he has not gifted these items to the respondent as the respondent has positively deposed to in his affidavit (paragraph 10). Further, he has not deposed as to whether items he has disposed of other than by sale have his signature and not his handwritten name on them. [50] At paragraph 13 Mr Carson says he did not sell, swap or trade his laser copies to the respondent. What he does not say is that he did not gift them to the respondent. The concept of “sale”, “swap” and “trade” connotes a form of quid pro quo in the mutual exchange of value in the form of money in the case of a sale, or an exchange for another item in the case of a swap or trade. This is a different concept from “gift” in which an item is given to another without consideration. This is an important aspect of this case. Mr Carson is obviously aware of this difference because at the end of paragraph 12 of his statement he expressly refers to swapping and gifting items to others that he recalls. On the other hand the respondent has expressly deposed in his -- 14 of 18 -- 15 sworn affidavit to Mr Carson having gifted these laser copies to him in the early 1990‟s when they were friends. [51] Further, given that Mr Carson has not seen these laser copies since going to Hobart in 1998 he has not deposed, and cannot depose as to whether anyone else from Doggett Studio has sold or gifted these laser prints to the respondent or anyone else in any event. [52] Mr Carson retains all the rest of the “Wrestle” collection. He values the nine laser copies of the Matadors at $1,170 to $1,500. [53] The respondent, on the other hand says that after Mr Carson gifted them to him “at some point in the early „90‟s when [they] were friends”, he placed them in a filing cabinet where they remained until seized by the applicant. He deposes that the property legitimately belongs to him. The respondent deposes that the nine laser copies are “relatively worthless”. [54] Unfortunately, the evidence of both Mr Carson and the respondent on these critical issues were not fully tested in cross examination. In the absence of evidence from Mr Carson on the issues raised above especially the gift question, and in the light of direct evidence by the respondent which is contained in his sworn affidavit, on balance, I prefer to accept the evidence of the respondent. [55] The respondent did cross examine on whether the laser copies could themselves have been colour copied. This is a similar question Byrne QC asked Mr Carson in committal proceedings. However, the respondent‟s case is that Mr Carson gave them to him in the early 1990‟s. It is not his case that the items that were in his possession were those further colour copies. [56] Regarding the statement of Mr Whitaker, this is a typical example of the dangers in using a statement initially prepared for one purpose, namely committal proceedings but being used for another purpose, namely this civil application under section 694 of the Act. Paragraphs 1 to 7 contain his brief history. Thereafter, much of its content is irrelevant to this application as it obviously relates to other items of artwork not the subject of this application. Also, in my view, and in the context of this application, it contains oppressive and scandalous material to the effect that the respondent -- 15 of 18 -- 16 (Dr Dunlop) had malevolent opportunities to take items from his gallery12. In addition to the grounds for excluding this statement referred to earlier, I would also exclude it on the grounds that it contains oppressive and scandalous material (see rule 440 UCPR). [57] I note the respondent has deposed to the difficulties in the return of another art item13 pursuant to an order made on 5 September 2007 in a previous section 694 application by the applicant. That is not directly relevant to this application although I gather he raises it in these proceedings to vent his frustration in the length of time that has gone by. [58] Based on the available evidence on balance I declare that the owner of the work “nine laser copies with subject being Matadors with print indicating the author to be Steven Carson” to be Dr Richard Dunlop. These items should be returned to the respondent as soon as possible. [59] Having regard to my comments at paragraph 40 herein, this artwork should be returned to the respondent as soon as possible. Four lithographs on paper by Timothy Michael Johnson [60] As with the previous applications, this application seeks a declaration that this item is owned by the Crown. In fact, the thrust of the case in the filed material and at the hearing was that an artist by the name of Timothy Michael Johnson was the owner. I will proceed on that basis. [61] As with the artwork in the previous applications, this artwork was seized on 12 August 2005 and the respondent was charged. It is not disputed that no evidence was offered by the prosecution on the charge or charges relating to this artwork at the committal proceedings held in or about September 2008. [62] Mr Johnson was called to give evidence by phone and was cross examined. Certain hearsay passages in his statement are inadmissible. For example, the second sentence in paragraph 2 states “I have however heard through the news and in newspapers that 12 Not only artwork but also a Makita cordless drill and battery! (see paragraph 8); 13 An art book by Sebastian Di Mauro; see transcript exhibited to the respondent‟s affidavit at lines 42 et seq page 17; -- 16 of 18 -- 17 a person by that name [referring to the respondent] was involved in a dispute involving missing paintings”. I will not refer to all examples. [63] Mr Johnson is an artist who does not know the respondent. The Bellas Milani Gallery in Brisbane has represented him since 1986. His statement then describes four lithographs he created for an organisation in New Zealand called “Muka”. The first two were of an aboriginal family, the third was a “sleeping buddha” and the fourth was entitled “Atom of Being”. [64] In 1991 or “maybe 1992” he had an exhibition at the Bellas Milani Gallery in Brisbane consisting mainly of paintings. However he decided to put some “Muka” unique unframed prints on a table for sale during the exhibition as well as other drawings – about 15 to 20 with a price of $100 each. [65] At paragraphs 14 & 15 of his statement Mr Johnson states: 14. From recollection, I believe some of the works on the table display at Bellas Gallery were sold but I don‘t know specifically which ones. I receive statements of sales made however these are not always individually itemised so I‘m not able to say definitely which were sold. I would rely on the gallery records of individual sales. 15. At the end of the show I left any unsold items with the Bellas Gallery to keep in stock. The gallery would advise me if a work was sold from stock and I don‘t recall them advising me of the sale of any of the Muka prints. [66] That evidence, by itself does not convince me on the balance of probabilities that Mr Johnson is the current owner of the art items which are the subject of the application. [67] The statement of Peter James Bellas has been excluded for the reasons previously given. In any event, that statement refers to the art of other artists not relevant to this application. This further demonstrates the dangers of using a document prepared for one purpose and being used for another purpose. However, while he seems quite definite in his statement at paragraph 17 that he did not sell any of these prints to the respondent and later at paragraph 19: The works that I have mentioned in my statement remain the property of the respective artists whilst they are held in stock at my gallery. Richard Dunlop has definitely never purchased these works from me and should not be in possession of the works. …., -- 17 of 18 -- 18 those assertions have been somewhat undermined in his answers during cross examination by Byrne QC at committal proceedings. For example, at line 15 page 14 of the transcript: Mr Byrne: In each – in respect of each of the artists, Eugene Carcheslio, Luke Roberts, Tim Johnson, Andrew Arnaoutopoulos, your statement I suggest uses the words ―I can‘t recall selling particular works‖, is that fair? – Yes Is it equally fair then that you could have sold those but simply can‘t recall? – It‘s possible. [68] And again at line 30 page of the transcript: Okay. In respect to the works of Tim Johnson, ah, again you say that some were sold but you don‘t know which? -- mm Don‘t know to whom? – no ….You‘ve sold some but you‘re not sure which ones or to whom? – That‘s right. It‘s – ‗cause it‘s a long time ago. [69] Even if Mr Bellas‟ statement was not excluded, I would not be satisfied on the balance of probabilities that Mr Johnson was the current owner of the art items the subject of this application. Mr Johnson relies on the Bellas Gallery‟s records and Mr Bellas was quite sketchy and equivocal at times about whether these items were sold and he had a number of assistants in the gallery over time. [70] On the other hand, the respondent deposes at paragraph 10 of his affidavit that he purchased these items from an assistant at Bellas Gallery in 1993. He bought them with works from other artists who are not disputing that he had legitimately purchased them from the gallery back then. I prefer this sworn affidavit evidence. [71] On balance, I declare that the owner of the work “Four lithographs on paper by Timothy Michael Johnson” to be Dr Richard Dunlop. [72] Having regard to my comments at paragraph 40 herein, this artwork should be returned to the respondent as soon as possible. -- 18 of 18 --