Nolan v Nolan [2003] VSC 121

Supreme Court of Victoria|2003-04-28|Before: DODDS-STREETON J.

For the reasons expressed above, in my opinion the notation does not constitute an admission by Sidney Nolan against interest.

If the above be incorrect and the document or notation therein is admissible, I would attribute no weight to it in establishing Cynthia's ownership of "Italian Crucifix", 1955. The notation does not clearly refer to that painting and is in any event susceptible of an indefinite number of equally tenable constructions. I am unable to attribute any specific meaning to it.

Document 1.2 - Proposed exhibition checklist of paintings marked "Paintings Sidney Nolan for Helen Kapp, Wakefield Gallery" circa 1956

The document is a list entitled "Paintings - Sidney Nolan - for Helen Kapp, Wakefield Gallery". It is a single draft page, containing a typed list of paintings with some handwritten additional notations. It contains, inter alia, the handwritten notation "Wakefield Italian Crucifix coll. Cynthia Nolan (48 x 36")". The dimensions accord with those of "Italian Crucifix", 1955. Mr Smith identified the handwriting of the notation as that of Sidney Nolan.

I consider that the statement is admissible under s.51(1)(a) of the Act, on the basis that I may infer, pursuant to s.55C that Sidney Nolan had, at the time of making the statement, personal knowledge of the matters dealt with by the statement. Although he is not called as a witness, Sidney Nolan is dead.

If the statement in the document is admissible under s.55(1)(a) it is unnecessary to determine whether it would also be admissible under s.55(1)(b). There is no evidence before the Court as to what the document is, or where or in what circumstances it was created. It was produced from the Cynthia Nolan Papers. The circumstances of the deposit of the Cynthia Nolan Papers, the incomplete examination for the purposes of this proceeding and the restricted access to them is discussed above.

In the circumstances, I do not consider that there is evidence on which to conclude that the document is, or forms part of, a record relating to Sidney Nolan's business, made in the course of that business.

The relevant notation is contained in an informal, undated draft document of inherently uncertain status. The document is derived from a source which may not be comprehensive, has not been exhaustively examined, and cannot be tested by the defendants, due to limited access. Exercising the scrutiny and caution required in the circumstances, I do not construe the statement to mean that "Italian Crucifix" 1955 was, at the date of the notation, in the collection of Cynthia. The notation may be a mere private jotting, never intended by its maker to be communicated to another party. It may represent an intention to transfer the painting to the collection of Cynthia, in the future, conditionally or unconditionally. A number of other constructions are possible. There is nothing to indicate that it is a conclusive statement intended to be made public, to affect rights or to bind the maker. It is not possible to conclude that it was not qualified or contradicted by other documents which have not been produced.

I also note that attribution to a collection, in any event, is not equivalent to an acknowledgment of absolute ownership. That is discussed in detail above. While there are a number of paintings by Sidney Nolan entitled "Italian Crucifix" (or similar), the stated dimensions accord with those of the painting of that title in dispute in the current proceeding. While the possibility that there is more than one painting of the same name and the same dimensions cannot be excluded, it is a reasonable inference to draw, under s.55C, that the painting referred to in the notation is the painting in dispute. That inference, however, does not overcome the problem that no unequivocal meaning can be attributed to the notation.

The above circumstances could be said to justify rejection of the statement pursuant to s.55(9) of the Act. However, in my view, the preferable course is to admit it, but to attribute to it little or no weight. The notation does not, in my opinion, constitute evidence that at the date of the statement (which is unknown) "Italian Crucifix" 1955 formed part of Cynthia's collection, or that it was at that date publicly acknowledged by Sidney Nolan to be part of that collection or otherwise the property of Cynthia.

Document 1.3 - Letter dated 9 January 1956 from L. Somerville to Sidney Nolan

The letter appears, on its face, to be from the Director of the Fine Arts Department of the British Council, Mrs L. Somerville, to Sidney Nolan. Although dated, it is unsigned and the enclosures referred to in the letter are not attached. The letter is derived from the Cynthia Nolan Papers, the status of which is discussed above.

The letter refers in part to the framing of certain paintings, in particular "the Italian Crucifixion belonging to Cynthia". It also refers to more personal matters. Although the relevant painting is described as "belonging to Cynthia" the letter seeks Sidney Nolan's consent to removing its frame, suggesting that he retained some control over it.

In view of the fact that the letter is unsigned, and given its source of production, although references to framing relate to an artist's occupation or business, I do not conclude that the document is, or forms part of, a record relating to Sidney Nolan's business, made in the course of the business. It is therefore not admissible under s.55(1)(b) of the Act.

If that conclusion be incorrect, I would exercise my discretion to exclude the document under s.55(9) as there are no means of identifying which of the several paintings of an "Italian Crucifixion" or similar, the letter refers. No dimensions are recorded and the plaintiff acknowledges that a painting of similar title was an asset of Cynthia's estate, and was subsequently sold. The statement is therefore irrelevant. Alternatively, no weight could justifiably be attributed to the statement.

Document 1.4 - Catalogue of Whitechapel Art Gallery, London, June to July, 1957

The Whitechapel catalogue lists item 60n as:

"Italian Crucifix 1955 P1 XVI ripolin on masonite 36 x 48" Exhib. Paintings by S.N., Redfern Gallery, London: May 1955: cat. 19 as "Crucifix - Apulia" Collection: Cynthia Nolan."

I consider that the statement is admissible as being contained in a document forming part of a business record of the Whitechapel Gallery, pursuant to s.55(1)(b) of the Act. The Gallery constitutes a "business" within terms of s.3 of the Act. From Ms Haythornwaite's evidence I infer that the document forms part of the record of the business, which, pursuant to s.55C, I infer was made in the course of the business. Although the supplier of the information cannot be certainly identified, I infer that it was either Sidney Nolan or Cynthia. The catalogue's preface acknowledges the collaboration of Cynthia and Sidney Nolan in preparing the catalogue. Neither Cynthia nor Sidney Nolan can be called as a witness, as both persons are now dead.

I do not construe the relevant statement as an admission by Sidney Nolan against interest, as it is equally likely to be a statement by Cynthia. It is not possible to ascertain which statements were made on the basis of information from Cynthia, and which were made on the basis of information from Sidney Nolan. There is no external evidence that Sidney Nolan had any input into the preparation of the catalogue or was aware of, and approved, its contents.

I do not consider the catalogue admissible as an ancient document, for the reasons expressed above.

Although the statement is admissible, it is not established that it was based on information supplied by Sidney Nolan or that he approved the attribution. Sidney Nolan cannot now be called to give evidence on the circumstances of the attribution. Exercising the required scrutiny and caution, I do not consider that the statement constitutes an acknowledgment by Sidney Nolan that "Italian Crucifix" 1955 belonged to Cynthia's collection.

If that be incorrect, and the statement may properly be viewed as a statement made from information by Sidney Nolan and approved by him, I do not consider that the attribution of the painting to the collection of Cynthia would establish that Cynthia was the owner of the painting.

First, in my opinion, as discussed above, the approval of the attribution in a gallery catalogue of a painting to the collection of a nominated person is not a reliable acknowledgment that that person is the absolute owner.

Secondly, even if the statement were made by Sidney Nolan himself, and amounted to words of gift or constituted a clear acknowledgment that the painting was the property of Cynthia, delivery would also be necessary to transfer property to Cynthia by way of gift. That requirement is discussed below.

The plaintiff also seeks, in relation to the Whitechapel catalogue, to rely on a "loan agreement" of Whitechapel Gallery and Cynthia which, on its face, records an agreement by Cynthia to loan certain paintings, including "Italian Crucifix" 1955, to the Whitechapel Gallery.

I consider that the loan agreement forms or is part of a record of the business of the Whitechapel Gallery.

I also consider that the loan agreement is an ancient document, in that it is more than 20 years old and constitutes an act of ownership. Further, it is produced from the records of the nominated borrower or "licensee", the Whitechapel Gallery. Such a source is the expected source and hence "proper custody".

As recognised in Malcolmson v O'Dea, it is a question of what weight should be attributed to such a document in the absence of proof of possession, payment of rent or other circumstances. In the present case, I consider that the Whitechapel Gallery loan agreement establishes that Cynthia represented herself as having such interest in the paintings as entitled her to loan them to Whitechapel Gallery in 1957.

However, such an interest is not necessarily equivalent to absolute ownership but could be more limited, such as a life interest, a mere right to possession or a conditional interest.

Further, the fact that Cynthia represented herself as owner was clearly not against interest. Cynthia and Sidney Nolan are dead and the representation cannot be tested. The loan document is not evidence that Sidney Nolan represented Cynthia as entitled to any interest entitling her to lease "Italian Crucifix" 1955.

Document 1.5 - A letter from J. Wood Palmer (of the Arts Council of Great Britain) to Sidney Nolan, dated 31 July 1957

The letter is unsigned. It is produced from the Cynthia Nolan Papers. There is no evidence that Sidney Nolan received the letter. The letter refers to the sales of paintings. It also states that there are forms enclosed for signing by Sidney Nolan's wife and daughter. It is apparent from the letter, and I infer, that Cynthia had conveyed certain information to the author and that Sidney Nolan had sent the author a letter.

The letter might be viewed as a record, or forming part of a record, of the business of Sidney Nolan, made in the course of that business from information supplied by Cynthia or by Sidney Nolan, save that it is unsigned and is produced from the Cynthia Nolan Papers. One would expect the business records of Sidney Nolan to contain a signed letter, if it had been received. In view of those circumstances, I do not consider that the statement is admissible under s.55(1)(b) of the Act.

If it were admissible I would not accept that the effect of the statement is that asserted by the plaintiff. It is not clear that the "forms" referred to in the letter are loan agreements in relation to paintings owned by Cynthia and Jinx Nolan.

If the statement were admissible, exercising the required scrutiny and caution, I do not consider that it would establish that the forms referred to in the letter included a form in relation to a painting in dispute, or that Sidney Nolan saw that form and acquiesced in Cynthia's completion of it as owner. I do not conclude that Sidney Nolan procured Cynthia's signature to the loan agreement which is Document 1.6.

Document 1.6 - Arts Council of Great Britain Loan Agreement dated 14 August 1957

The agreement is signed and the signature of Cynthia was identified by Ms Jinx Nolan. The document is a loan agreement pursuant to which Cynthia agreed to loan "Italian Crucifix" 1955.

I consider that the document is admissible as an ancient document. It is over 20 years old, constitutes an assertion of ownership by Cynthia and is produced from the custody of the borrower or licensee (by derivation).

I consider that the statement (constituted by the entire document) is also admissible as a business record of Cynthia under s.55(1)(b) of the Act (given the breadth of the definition of "business" in s.3 of the Act). There is evidence that Cynthia wrote travel books relating to Sidney Nolan's art, owned and sold paintings by Sidney Nolan and had her own business address. The loan of paintings may be considered to be part of her occupation or calling, which, pursuant to s.3 of the Act, need not be carried on for profit.

I accept that in the document, Cynthia asserts herself to be the owner of the painting "Italian Crucifix" 1955 as at 14 August 1957 and reference is made to conditions of loan stated in the Arts Council letter of 31 July 1957. (I note that that letter cannot be, apparently, the unsigned letter of J. Wood Palmer [Document 1.5], which does not contain conditions of loan.)

An assertion of ownership by Cynthia does not establish that Sidney Nolan had made a valid gift to her. There is, in my opinion, no admissible evidence to establish that Sidney Nolan saw and approved the loan agreement. If there were evidence to that effect, it would still be necessary to establish that such conduct constituted a sufficient manifestation of donative intention, together with delivery of possession.

Document 1.7 - Catalogue of the Arts Council of Great Britain Sidney Nolan Exhibition, 1957

There is no proof of the admissibility of the catalogue of the Arts Council of Great Britain. In those circumstances, it is inadmissible.

Document 1.8 - Catalogue of the Art Gallery of New South Wales - Sidney Nolan Retrospective Exhibition of Paintings from 1937 to 1967 - Exhibitions in Australia from 13 September 1967 to 4 February 1968.

The plaintiff seeks to rely on the whole catalogue as evidence of Sidney Nolan's direct involvement in its production and publication.

The particular statement sought to be admitted is that the painting "Italian Crucifix" 1955 is listed as being in "private collection" by reason of the general statement in the catalogue that, unless otherwise indicated, "paintings are from private collections." There is no indication of any collection in relation to "Italian Crucifix" 1955.

In the acknowledgments, the catalogue states "we are especially indebted to the artist and his wife, Cynthia, for their long patience in bearing with the seemingly never ending questions-and-answers involved in preparing the catalogue".

I consider that the statement that "Italian Crucifix" 1955 belongs to a private collection is admissible, as being contained in a document being or forming part of a record relating to the business of the Art Gallery of New South Wales. I infer, pursuant to s.55C of the Act, that the relevant information was supplied by Sidney Nolan or by Cynthia, who may be reasonably supposed to have had personal knowledge of the information supplied.

I do not consider that the catalogue as a whole is admissible, as the relevance of the balance of it to issues in dispute in this proceeding is not apparent.

I do not consider that the catalogue is admissible as an ancient document, for the reasons set out above.

In attributing weight to the statement, I must scrutinise it carefully and exercise caution. On the balance of probabilities, I consider that "Italian Crucifix" 1955 was attributed to a "private collection" in the catalogue on the basis of information supplied by Cynthia or Sidney Nolan, but it is not possible to conclude which of those two persons supplied the information. It is likely that Cynthia and Sidney Nolan each answered questions in relation to preparation of the catalogue. It is not possible to determine the degree or nature of Sidney Nolan's involvement in the preparation, or to identify the information he supplied.

It is not possible to determine whether either or both of them were satisfied with the catalogue which was ultimately produced or considered that it accurately reflected any information that they had supplied.

The New South Wales Art Gallery Sidney Nolan Retrospective Catalogue 1967 therefore does not assist in the determination of whether, as at the date of its publication, "Italian Crucifix" 1955 belonged to the collection of Cynthia or Sidney Nolan. It does not constitute evidence that Sidney Nolan publicly acknowledged Cynthia's ownership of the painting.

Document 1.9 - Letter of Hal Missingham to Sidney Nolan dated 13 January 1967

The letter of Mr Missingham of the Art Gallery of New South Wales reports to Sidney Nolan on various matters concerning the planned Retrospective Exhibition and lists certain queries. Under "1952-1956" London - Greek - Italian - 2nd Kellys" it states "Need 3 more, a good Greek one, an Italian one (Cynthia's)".

I consider that the letter is admissible pursuant to s.55(1)(a) and (b) of the Act, as being, or forming part of, a record relating to the business of the Art Gallery of New South Wales, made in the course of the business from information supplied by a person who may reasonably be supposed to have personal knowledge of the matters dealt with. In my opinion, as the letter is principally a request for instructions or responses, that person is the author, Mr Missingham.

Further, the letter contains statements, and it may be inferred that their maker, Mr Missingham, at the time had personal knowledge of the matters dealt with by the statements. The statements are therefore admissible pursuant to s.55(1)(a) of the Act.

The plaintiff seeks admission of the whole letter rather than particular statements. The plaintiff contends that the letter is part of the correspondence:

"... which provides a flow of information between the director of the gallery, Hal Missingham and the artist Sidney Nolan, in preparation for the exhibition and the production of the catalogue for the exhibition. It evidences the practice of Sidney Nolan to be directly involved in planning for exhibitions of his works in public galleries."

I do not consider that the letter, taken in isolation, evidences interchange between Mr Missingham and Sidney Nolan in relation to the Retrospective Exhibition. When taken in conjunction with other admissible documents or statements (see 1.10) it may do so.

The letter states "Need 3 more a good Greek one, an Italian one (Cynthia's)" for the years 1952-1956. I do not consider that the statement establishes more than that Mr Missingham believed Cynthia to own, or have entitlements to, a painting of Italian subject matter, or painted in Italy, during the designated period.

Document 1.10 - Letter from Sidney Nolan to Hal Missingham dated 28 April 1967

The plaintiff seeks to admit the whole letter, and, in particular, the statement:

"Could you put my paintings and Cynthia's in the catalogue under private collection"

and

"Probably just a note at the end to say: unless otherwise indicated the paintings are from private collections".

The plaintiff contends that the letter establishes that Sidney Nolan admitted that some of the paintings for the 1967 Retrospective Exhibition were owned by himself and some by his wife, Cynthia.

In my opinion, the letter is a document being or forming part of a record relating to the business of the Art Gallery of New South Wales, made in the course of that business from information supplied by Sidney Nolan, who may be reasonably supposed to have had personal knowledge of the matters dealt with in the information supplied. Statements in the letter may therefore be admissible pursuant to s.55(1)(b) of the Act.

Statements in the letter are also admissible under s.55(1)(a) of the Act. The maker of the statements in the letter may be inferred to have had personal knowledge of the matters dealt with at the time of making them, and, although not called as a witness, is dead.

The letter does not identify a final and exhaustive list of the paintings which were to be exhibited at the Retrospective Exhibition. Exercising the required scrutiny and caution, I do not accept that the letter constitutes evidence that Sidney Nolan admitted that of the paintings ultimately exhibited from July 1967 to February 1968, some were owned by Cynthia and some by himself.

I consider that the letter establishes no more than that Sidney Nolan acknowledged that of the paintings contemplated as loans to the Retrospective Exhibition at the date of the letter (which are not specifically identified) some were his own and some were Cynthia's.

That acknowledgment cannot be specifically applied to "Italian Crucifix" 1955, although that painting was ultimately exhibited. Moreover, it does not assist in determining the relative entitlements of Cynthia and Sidney Nolan to "Italian Crucifix" 1955.

Document 1.11 - Letter from Sidney Nolan to Hal Missingham dated 21 January 1967

The letter states: "52 - 56 - Have three more. Cynthia's Italian one". The statements made in the letter are made by a person, Sidney Nolan, who had personal knowledge of the matters dealt with in the statements at the time of making them and who, although not called as a witness in the proceeding, is now dead. The statements are therefore admissible pursuant to s.55(1)(a) of the Act.

In my opinion, the letter is a document being or forming part of a record of the business of the Art Gallery of New South Wales, made in the course of the business from information supplied by Sidney Nolan, who may reasonably be supposed to have had personal knowledge of the matters dealt with in the information supplied. Sidney Nolan, although not called as a witness, is now dead. Statements in the document are therefore admissible pursuant to s.55(1)(b) of the Act.

I consider that this letter, which appears to be in response to the letter of Hal Missingham dated 13 January 1967 [Document 1.9] is evidence of Sidney Nolan's exchange of information and involvement in planning for the Art Gallery of New South Wales Retrospective Exhibition. However, I cannot infer from the letter any reliable or invariable practice of such involvement in relation to other exhibitions.

The reference to "Cynthia's Italian one" is evidence that Sidney Nolan acknowledged an "Italian" painting as "Cynthia's." Exercising the required scrutiny and care, I am unable to conclude that that general description applies to "Italian Crucifix" 1955.

There were several "Italian Crucifix" paintings by Sidney Nolan and other Nolan paintings of "Italian" subject-matter. In so far as the reference suggests that only one was known as "Cynthia's" (as there is no attempt to distinguish it from any other "Italian" painting of "Cynthia's") - it does not assist the plaintiff. (Sidney Nolan did not dispute that a painting on the Italian Crucifix theme was an asset of Cynthia's estate.) I am unable to conclude that the letter refers to "Italian Crucifix" 1955 because that was the painting ultimately exhibited. The letter is also consistent with Sidney Nolan's continued control over, or access to, "Cynthia's Italian one". I do not consider that the letter constitutes an acknowledgment by Sidney Nolan that Cynthia owned "Italian Crucifix" 1955.

1.12 - Art Gallery of New South Wales original typescript notes with handwritten corrections for printer

The document appears to be, or form part of, a record relating to the business of the Art Gallery of New South Wales made in the course of the business. It is not apparent from the document who made the statements, or who supplied the information from which the record was made.

I therefore consider that the statement is not admissible pursuant to s.55(1)(b).

If that be incorrect, and the statement "Italian Crucifix 1955 illustrated (36 x 46 ripolin on board Coll of Cynthia Nolan" is admissible, it would be consistent with the request of Sidney Nolan that any paintings of his or Cynthia's should have no specific attribution in the catalogue, but should be comprehended by a general attribution to "private collection".

If Sidney Nolan did give instructions for the relevant entry, in my opinion it does not support the contention that he acquiesced in, or agreed to, the public attribution in the catalogue, of "Italian Crucifix " 1955 to Cynthia's collection. Although the measurements of the "Italian Crucifix" 1955 referred to in the document accord with those of the painting in dispute, the notation "Coll: Cynthia Nolan" is struck through. If that were done at the behest of Sidney Nolan, it suggests that he was unwilling to identify or hold Cynthia out as entitled to that painting and preferred to keep the respective entitlements of Cynthia and himself private. It is not established that this is the painting described by Sidney Nolan as "Cynthia's Italian one" referred to in the letter of 21 January 1967. (Document 1.11) There is also annexed a list of "works from the artist's studio", listing No. 40 "Italian Crucifix" 1955 as "collection: Cynthia Nolan". Exercising the care and scrutiny required, I do not construe this as an acknowledgment of Cynthia's ownership of "Italian Crucifix" 1955 by Sidney Nolan.

Document 1.13 - Handwritten list headed "collection Cynthia Nolan"

This is an undated handwritten list of paintings, including No. "55: Crucifixion Sth Italy 36 x 48" and No. "46. Hare in Trap 36 x 48".

The list is headed in barely legible handwriting -

"collection Cynthia Nolan - [with] ? Elwyn Lynn Curator, Power Gallery. Sydney University for gradual sale to benefactor to give to Power Gallery when [buyer] or as my trustees see fit."

On p.2, is written "Collection Cynthia Nolan Paintings collected from 62 Deodor Rd 30 April 74 from C Hansen to Pickfords Litchfield Terrace; then to Aus on loan Syd Uni Jack Lynn".

The handwriting was identified by the plaintiff as that of Cynthia.

I consider that statements in the list are admissible pursuant to both sub-sections 55(1)(a) and (b) of the Act, in that Cynthia's dealings constituted a business within the definition of s.3 of the Act. I infer that the record was made in the course of that business from information supplied by Cynthia. The list is produced from the Cynthia Nolan Papers.

The document is evidence that Cynthia included the paintings "Hare in Trap" and "Crucifixion Sth Italy" (with the measurements of the painting of the title "Italian Crucifix" in dispute in this proceeding), in a list headed "collection Cynthia Nolan". The handwritten notations indicate that Cynthia claimed or described the paintings as being within her collection. It may also be inferred that Cynthia intended that the paintings be collected from the Nolan's Putney residence and ultimately despatched to the Power Gallery, University of Sydney.

The document, in my opinion, indicates that Cynthia asserted rights or claims of entitlement to the paintings in the list. She also recorded an intention to despatch them, which, if implemented, would be consistent with her exercise of possession, dominion and control of the paintings.

The assertion by Cynthia of such entitlement and the exercise of control, while consistent with her ownership of the paintings by way of gift, is equally consistent with a number of other possibilities. It is consistent with Cynthia misappropriating the paintings or asserting rights contrary to Sidney Nolan's wishes and consent. It is consistent with Cynthia having received the promise of a gift from Sidney Nolan and, believing the paintings to belong to her, taking possession for herself. Exercising the required scrutiny and caution, I do not construe the document as evidence of Cynthia's ownership of the paintings, or evidence that Sidney Nolan acknowledged Cynthia's ownership of the paintings or that he made delivery of the paintings to her.

Document 1.14 - Statement by Elwyn Lynn of the Power Gallery of Contemporary Art, University of Sydney dated 21 November 1974

The typewritten document lists paintings including "Hare in Trap" (No.2) and "Italian Crucifixion 1955 36 1/8 x 48" (No.13) which are stated to be loaned to the Power Gallery by Cynthia.

The document is executed by Elwyn Lynn as curator. It is not executed by Cynthia, although there is space for execution by "Cynthia Hansen-Nolan".

Statements in the document would be admissible pursuant to s.55(1)(a) of the Act, as Elwyn Lynn is the maker of the statements (inferred pursuant to s.55C and the evidence of Tim Kelly).

On its face the document might constitute a business record of the business of the Power Gallery, albeit produced from David Jones files. However, one of the few examples of direct evidence relating to a transaction in this case was that given by Mr Tim Kelly. Mr Kelly's evidence was that he believed that the deposit of paintings at the Power Gallery was not a loan by Cynthia to the Power Gallery, but a private arrangement between Cynthia and Elwyn Lynn. If that were the case, the document misrepresents the transaction it purports to record.

Mr Kelly's evidence could constitute a reason to decline to admit the document, or statements contained in it, pursuant to s.55(9) of the Act.

There is evidence that Cynthia arranged the Power Gallery deposit without Sidney Nolan's knowledge or consent. That might also constitute a basis for rejection. I will not, however, exercise my discretion to refuse to admit the document.

The document is not signed or executed by Cynthia. In my opinion, on the construction most favourable to the plaintiff, it can establish no more than that a third party, on the balance of probability, Cynthia (who was evidently expected to execute a version of the statement) had represented to Elwyn Lynn that Cynthia had a sufficient interest in the listed paintings to lend them to the Power Gallery and had indicated a willingness to do so. The precise nature of Cynthia's entitlement is not defined in the document. There is no evidence that Sidney Nolan was aware of, or approved a loan to the Power Gallery or the representation in the document of Cynthia as lender or owner of the collection. On the construction least favourable to the plaintiff, the document was prepared as a misleading record of the true transaction, for purposes which cannot now be fully ascertained.

In my opinion, the statements in the document do not establish that Sidney Nolan acknowledged or held Cynthia out as owner of the paintings, approved her dealings with the Power Gallery or delivered the paintings into her possession.

On the basis of Mr Kelly's evidence and the related correspondence between Cynthia and Elwyn Lynn, I find that Cynthia (whatever her entitlement) despatched and dealt with the paintings without Sidney Nolan's consent, deliberately concealing her actions from him. As I must, in any event, approach a claim against Sidney Nolan's deceased estate with caution, the probability of such conduct by the alleged donee is a strong reason for added caution.

Document 1.15 - David Jones Art Gallery Catalogue - "The Cynthia Nolan Collection of Paintings by Sidney Nolan" 7-20 July, 1975

The David Jones Art Gallery Catalogue entitled "The Cynthia Nolan Collection of paintings by Jinx Nolan" lists as No.2 "Hare in Trap" 1946 and as No.13, "Italian Crucifixion" 1955 with measurements 91.7 x 121.9 cm (identifiable with the measurements of the painting the subject of this proceeding).

In my opinion, the David Jones Art Gallery Catalogue (or statements therein) are admissible as being or forming part of a record of the business of the David Jones Art Gallery made (probably by Robert Haines, the director) in the course of the business from information supplied by a person, Cynthia (whether directly or indirectly through Elwyn Lynn or others, as I infer pursuant to S.55C) who might reasonably be supposed to have had personal knowledge of the matters dealt with.

I consider that the catalogue constitutes only an attribution by Cynthia, or by third parties other than Sidney Nolan, of the paintings in question to her "collection". The evidence is that Sidney Nolan did not know of, or participate in, the despatch of paintings to the Power Gallery, the attempted sale of any of those paintings, the David Jone Art Gallery Exhibition or the production of the David Jones Art Gallery catalogue and the attribution therein of the paintings to Cynthia's collection.

There is no evidence that Sidney Nolan consented to Cynthia's control of, or dealings with, the paintings. There is no evidence that he represented Cynthia as the owner of the paintings or consented to the attribution in the catalogue. On the contrary, it is not disputed that he did not, at first, know of the David Jones Art Gallery Exhibition and that he was displeased when he subsequently learnt of its occurrence.

Given that the parties are long dead, I must view with considerable caution a statement by a dead person, Cynthia, which is not against interest, asserting entitlement against another deceased party's estate, even if the statement is rendered admissible through s.55(1) of the Act. The statements in the catalogue are equally consistent with self-serving conduct and unauthorised activity by Cynthia.

The evidence of Ms Sloggett identified a label on the top left of the verso of the painting "Italian Crucifix" 1955 which read "Art Gallery of New South Wales Sidney Nolan September 12-October 20 1967 Italian Crucifix".

The plaintiff contends that the label establishes that "Italian Crucifix" 1955 is thereby proved to be directly linked to the correspondence between Sidney Nolan and Hal Missingham, and the Art Gallery of New South Wales List of works.

Ms Sloggett gave no evidence that the label was attached by the servants or agents of the Art Gallery of New South Wales at the date of, and for the purposes of, the 1967 Retrospective Exhibition. She merely identified the label. If it be authentic, in my opinion, it does not establish the link for which the plaintiff contends. Hal Missingham's letter dated 13 January 1967 refers only to "Cynthia's Italian one". Sidney Nolan's letter of 28 April 1967 refers merely to "my paintings and Cynthia's" and Sidney Nolan's letter of 21 January 1967 refers only to "Cynthia's Italian one".

There are a number of Sidney Nolan "Italian" paintings, only some of which are based on the theme of "Italian Crucifix". It is not possible to conclude that in referring to the painting in the correspondence with no more specificity than "Cynthia's Italian one" Mr Missingham and Sidney Nolan had in mind "Italian Crucifix" 1955, even if that painting were the "Italian" painting ultimately exhibited at the Art Gallery of New South Wales Retrospective Exhibition. Exercising the required care and scrutiny, I cannot confidently conclude that the record of their correspondence is complete, or was not supplemented by conversations whereby the parties changed their original intentions and substituted "Italian Crucifix 1955" for the "Italian one" originally contemplated.

I consider, however, that to the extent to which the List of Works [Document 1.12] which lists as no.40 "Italian Crucifix 1955 ripolin on board 36 x 48" is itself admissible, the label does constitute a link with it and indicates that "Italian Crucifix 1955" (the painting the subject of the present proceeding) was the painting exhibited at the Art Gallery of New South Wales in 1967.

I note that Ms Sloggett's evidence did not establish the presence of a marking "In the possession Cynthia Nolan" on the painting in dispute.

The plaintiff does not, in final written submissions, indicate what portion of the book is sought to be admitted, save for the printed notice on the inside of the front dust cover which states that:

"The first monograph to be produced in Europe on an Australian artist, this volume was devised by Bryan Robertson, Director of the Whitechapel Gallery, in collaboration with the artist."

The defendants object to the admission of the whole book, but seek the admission of CB 349-51 [an introduction page, pictures of "Hare in Trap" 1946 and "Italian Crucifix" 1955] and plate 50, "Ram Caught in Flood", which pages were referred to in the plaintiff's witness statement and in other evidence.

Relevance is a precondition of admissibility. The relevance of the parts of the book not specified by the parties is not apparent. They should be excluded. The dust cover notes, CB 349-51 and plate 50 only should be admitted.

Plate 3 lists "Hare in Trap" 1946 as "collection the artist". Plate 81 lists "Italian Crucifix" 1955 as "collection Cynthia Nolan". There is no external evidence to establish that Sidney Nolan collaborated with the author, supplied the relevant attributions or acquiesced in or approved them. Exercising the required scrutiny and caution, I do not consider that this constitutes an acknowledgment by Sidney Nolan that he had made a valid gift of "Italian Crucifix" 1955 to Cynthia, or that it was her property.

Proposed Exhibition Checklist marked "Paintings Sidney Nolan for Helen Kapp, Wakefield Gallery"

The plaintiff does not persist with her submission in relation to this document. It is not admitted.

Document 1.18 - Sidney Nolan diary notes, Monday 9 February 1959

The diary notes include the statement "send photographs to Marie Seton for her article".

Mr Smith identified the handwriting as that of Sidney Nolan.

In my opinion, the statement is admissible pursuant to s.55(1)(a) of the Act, as I infer that Sidney Nolan had, at the time of making it, personal knowledge of the matters dealt with, and although not called as a witness, is now dead.

The weight to be attributed to the statement is considered in relation to document 1.19 below.

Document 1.19 - Article - "Sidney Nolan - An Artist of the Antipodes" by Marie Seton in "The Painter and Sculptor" London, Summer, 1959

The plaintiff seeks to admit the statement referred to in document 1.18 in conjunction with the article by Marie Seton entitled "Sidney Nolan - An Artist of the Antipodes", in The Painter and Sculptor London, Summer, 1959. In that article, there is a photograph apparently of "Italian Crucifix" 1955 (although the dimensions are not stated), ascribed to the "(Collection: Cynthia Nolan)".

I am unable confidently to conclude from the diary note indicating that Sidney Nolan intended to send photographs to Marie Seton for her article that he did send that photograph for inclusion in this article; and, in particular, that he furnished the information that "Italian Crucifix" 1955 was from "Collection: Cynthia Nolan". While it is likely that Sidney Nolan did arrange or instruct that photographs be sent to Ms Seton for the article, he may have delegated that task to others and he may not have supplied the accompanying information. As Sidney Nolan is deceased and Ms Seton is not called to give evidence, in my opinion, exercising the required scrutiny and caution, it would be unsafe to construe this as a public acknowledgment by Sidney Nolan that "Italian Crucifix" 1955 was in the collection of Cynthia Nolan.

Conclusion on Donative Intention - "Italian Crucifix" 1955

From the above it follows that, in my opinion, the documents relied on by the plaintiff do not contain, in terms, an unequivocal statement made, or alternatively approved, by Sidney Nolan to the effect that he was making or had made an gift of "Italian Crucifix" 1955 to Cynthia or acknowledged it to be her property. For reasons discussed above, I do not consider ascription to a collection in an exhibition catalogue as tantamount to an acknowledgment of absolute ownership. Further, the principal formal assertions of Cynthia's ownership or ascriptions to her collection are either certainly made by Cynthia herself or possibly made by Cynthia, rather than Sidney Nolan, or made on the basis of information which was, or may have been, supplied by Cynthia or persons other than Sidney Nolan.

Document 2.1 - Handwritten list by Sidney Nolan submitted to be prepared for New Metropole, Folkestone, Exhibition in 1970

The handwriting is identified by Ms Jinx Nolan as that of Sidney Nolan.

At the bottom right hand corner the words "Catalogue Folkestone Feb 20th 1970" are written. The list includes item 13 as "Hare in Trap" 1946 and next to it is written "Cynth".

Professor Eveleigh, the director of the New Metropole Gallery, Folkestone in 1970, gave evidence relating to this document in difficult and potentially confusing circumstances. He gave evidence by video link from England in two sessions. In the first session, on 3 December 2002, Professor Eveleigh had before him a different version of his witness statement from the version of the witness statement before the Court and Mr Dreyfus Q.C., who was cross-examining him. Professor Eveleigh had a version of his witness statement dated 29 November 2002. An earlier version of his witness statement dated 28 November 2002 was before the Court. The witness statement dated 28 November 2002 stated that Document 2.1 was the list sent to Professor Eveleigh by Sidney Nolan in 1970 for use in the preparation of the New Metropole catalogue. The witness statement dated 29 November 2002 stated that Professor Eveleigh could not be absolutely sure that Document 2.1 was the list sent by Sidney Nolan. Following the completion of the first videolink session, it became apparent that the witness statements were different.

Professor Eveleigh had, in cross-examination on 3 December 2002, initially stated that he could not be sure that the handwritten list (which is document 2.1) was the list sent to him by Sidney Nolan in 1970 for use in preparing the catalogue for the 1970 New Metropole Exhibition. However, he thought that it was virtually identical.

In the course of further cross-examination on 9 December 2002, Professor Eveleigh agreed that on 29 November 2002 he had instructed that his witness statement dated 28 November 2002, be amended to state that he could not be absolutely sure that Document 2.1 was the list sent by Sidney Nolan.

On 9 December 2002, Professor Eveleigh at first appeared to withdraw his assertion that he could not be sure it was the list that Sidney Nolan had sent. Ultimately he seemed to concede that it was not the list, but he thought that it corresponded almost exactly to the catalogue.

While I recognise the difficult circumstances of the video link, the response of Professor Eveleigh on this issue was confusing, shifting and evasive.

I am unable to place any confidence in the veracity and consistency of Professor Eveleigh's identification of document 2.1. I conclude that document 2.1 is not a list which Professor Eveleigh recollected as being sent to him, but rather, a list that the Professor saw for the first time when it was sent to him by the plaintiff's solicitors. I conclude that he then noted the correspondence between that document and the 1970 New Metropole Gallery catalogue, and drew an inference from those correspondences.

A further relevant issue in Professor Eveleigh's evidence is the question whether he received Sidney Nolan's individual instructions and approval in relation to all the matters in the New Metropole catalogue. Professor Eveleigh gave evidence that he recalled a meeting at the Nolans' residence, at which both Sidney Nolan and Cynthia were present. He evinced some confusion as to the location of their residence, where the meeting took place.

When cross-examined as to whether he was able to recall any distinction between what Cynthia said and what Sidney Nolan said on the occasion of the meeting, Professor Eveleigh appeared evasive. Although he could recollect a comment by Cynthia concerning the proposed foreword to the catalogue and a comment by Sidney Nolan about the view of the Thames, I conclude that he was unable to remember whether any other specific instructions or information came from either person.

In the circumstances, I am unable to conclude that document 2.1 is the list sent by Sidney Nolan to Professor Eveleigh in 1970. I accept that the words "Cynth 13 Hare in Trap 1946" contained in the document, were written by Sidney Nolan. Exercising the required scrutiny and caution, I am, in any event, unable to construe those words as an unequivocal acknowledgment by Sidney Nolan of Cynthia's ownership of "Hare in Trap" 1946.

Document 2.2 - Catalogue for the Arts Centre, New Metropole, Folkstone, Kent published for the Sidney Nolan Retrospective Exhibition 21st February to 18th April, 1970

Item 14 is listed in the catalogue as "Hare in Trap 1946 36" x 48" ripolin lent by VC Nolan".

Professor Eveleigh identified the catalogue as being produced under his direction. The catalogue may, in my opinion, be admitted pursuant to s.55(1)(b) of the Act as a document which is, or forms part of, a record relating to a business, made in the course of the business of the New Metropole Art Gallery from persons who may reasonably be supposed to have had personal knowledge of the matters dealt with. The relevant persons in this instance are Cynthia and Sidney Nolan, who, although not called as witnesses, are dead.

It is not possible to determine whether the information that "Hare in Trap" 1946 was "lent by VC Nolan" was supplied by Cynthia or Sidney Nolan. I have already referred to the evidence of Professor Eveleigh on that issue. I consider that he was unable to recall, apart from some matters irrelevant to the issue, what particular instructions he received from whom in the course of his conversation with Cynthia and Sidney Nolan. Further, I consider that despite some contradictory assertions on his part, the ultimate effect of Professor Eveleigh's evidence was that he did not recognise the document 2.1, corresponding to the Catalogue, as the list which was sent to him by Sidney Nolan.

In those circumstances, I am unable to infer that Sidney Nolan himself provided the instruction or information to list "Hare in Trap" 1946 as "lent by V.C Nolan".

Professor Eveleigh's evidence was to the effect that Sidney Nolan did not express complaint about the catalogue.

I consider that I should accept that Sidney Nolan saw the attribution, whether he was the direct source of it or not, and did not complain to Professor Eveleigh, or to Professor Eveleigh's knowledge, anyone else.

It is possible, as the defendants submit, that he did dispute the attribution privately with Cynthia. There is no evidence that Sidney Nolan publicly disclosed his admitted displeasure over the David Jones Art Gallery Exhibition. Given the scrutiny and caution which must be exercised in this context, I do not consider that the catalogue establishes that Sidney Nolan approved the public ascription of "Hare in Trap" 1946 to Cynthia.

On the construction most favourable to the plaintiff, if Sidney Nolan knew of and approved the attribution of "lent by VC Nolan" to "Hare in Trap" 1946 in the catalogue, in my opinion, it is not sufficient to establish a complete gift of an absolute title to the painting. For reasons discussed in detail above, attributions in catalogues may not record entitlements accurately, for a range of reasons. Further, the mere statement by an original owner that a chattel has been given to someone else, or even that the owner "hereby gives" the chattel, is not sufficient to establish a perfect gift. It would also be necessary to establish the further requirement of delivery of possession to the intended donee. The fact that the purported donee obtains possession at a particular point cannot, without more, satisfy that requirement. The circumstances in which possession was obtained are all important. Possession may have been obtained without the purported donor's consent. An issue in the present case is whether the gift of a chattel can be established by the purported donor's admission or acquiescence in an assertion of the purported donee's ownership. I consider that relevant authority establishes that the mere admission by a donor of having made a gift, without more, cannot suffice.

Document 2.3 - Handwritten list of collection of paintings of Cynthia Nolan

The handwritten list of paintings has been considered in relation to document 1.13 above, in relation to "Italian Crucifix" 1955. The handwritten list includes as number 46 "Hare in Trap 30 x 48 ripolin" and is marked with a tick. The same conclusions apply as for item 1.13 in relation to "Hare in Trap" 1946.

Statement of Elwyn Lynn of the Power Gallery of Contemporary Art, University of Sydney, 21 November 1924

The statement has been considered in relation to "Italian Crucifix" 1955 as document 1.14 above. The document lists as number 2 "Hare in Trap" 1946 ripolin on masonite size 90.7 x 122.1 cm. The same conclusions apply in relation to "Hare in Trap" 1946.

Document 2.4- Catalogue of David Jones Art Gallery "The Cynthia Nolan Collection of Paintings by Sidney Nolan", 7-26 July, 1975

The David Jones Art Gallery Catalogue for the Cynthia Nolan Collection of Paintings by Sidney Nolan, 7-26 July 1975 has been considered in relation to "Italian Crucifix" 1955 in relation to document 1.15. "Hare in Trap" 1946 is included in the catalogue as number 2.

The same conclusions as for "Italian Crucifix" 1955, set out in relation to document 1.15, apply.

Conclusion on Donative Intention - "Hare in Trap" 1946

In my opinion, the documents relied on by the plaintiff do not contain an unequivocal statement made, or alternatively approved, by Sidney Nolan to the effect that he was making or had made gift of "Hare in Trap" 1946 to Cynthia or acknowledged it to be her property.

Document 3.1 - Extract from Sidney Nolan's Notebook 1974-1975

The diary extract has been identified by as being in the handwriting of Sidney Nolan. It has a list of titles of paintings in the top left hand corner, with a "C" to the right. There is a line drawn beneath those titles, and a single further title is written below it.

In so far as the diary extract contains a relevant statement, I consider that the statement would be admissible pursuant to s.55(1)(a) of the Act. The maker of the statement, Sidney Nolan, may be inferred to have had personal knowledge of the matters dealt with in the statement and, although not called as a witness, is dead.

In one sense, the evaluation of the weight to be attributed to the statement coincides with the question of admissibility. As a precondition of admissibility, it is necessary to identify a statement which tends to establish a fact. In the present case, I do not accept that the listing of the titles of several paintings above a line with a single letter "C" to the lower left above the line, constitutes a statement that the paintings listed above the line are the property of Cynthia; as such, there is no statement which tends to establish the fact that Sidney Nolan gave those paintings to Cynthia. If that construction be incorrect, and a statement to the effect alleged can be credibly construed from the writing in the diary extract, I would nevertheless attribute no weight to it. "C" is equally consistent with a number of meanings in addition to "Cynthia Nolan". If it did signify "Cynthia Nolan", the placing of "C" close to the titles cannot be assumed to signify that those paintings have been validly gifted to Cynthia.

Document 3.2 - Catalogue for the Moderna Museet Sidney Nolan Exhibition in Stockholm 17 January-7 March, 1976

The catalogue lists "Royal Hotel" 1948 122 x 91 as No. 20 "tillhor" (Swedish for "belongs to") Mrs C. Nolan.

I consider that the relevant statements contained in the catalogue are admissible, as being contained in a document which is, or forms part of, a record relating to the business of the Moderna Museet.

Given a finding that it is admissible on that basis, it is unnecessary to determine admissibility on alternate bases. However, for reasons given above, I consider that the doctrine of ancient documents should not be extended to apply to an exhibition catalogue, which does not show on its face an assertion of ownership, as do the documents held in decided cases to constitute ancient documents. Further, I do not consider that it should be admitted, by inference, as an admission against interest by Sidney Nolan. Cynthia apparently advised the Moderna Museet to note "Royal Hotel" 1948 as belonging to her [see Document 3.9]. Two letters of Cynthia to Mr Von Schantz of Moderna Museum dated 27 November 1975 and 14 December 1975 respectively advise Mr Von Schantz that certain paintings are "mine" or are "belonging to me". Further, I consider that while there is evidence that Sidney Nolan was directly involved in the production of some catalogues, I cannot be confident that he had such involvement in the preparation of this catalogue. I cannot assume that Sidney Nolan understood Swedish or the significance of the attribution "tillhor" ("belongs to"). The catalogue lists "No. 20 Royal Hotel 1948 122 x 91 Tillhor Mrs C. Nolan". The absence of evidence that Sidney Nolan failed to prevent its publication is not tantamount to establishing his understanding and approval of the attribution.

As the statement is admissible as a business record, it is necessary to determine what weight should be attributed to it. For the reasons stated above, it cannot be assumed that Sidney Nolan supplied the attribution or agreed with it, simply because there is no evidence of protest. However, on the most favourable construction for the plaintiff, if Sidney Nolan supplied and acquiesced in the attribution (which I do not find) it would still be necessary to establish that he delivered the painting to Cynthia, in order to establish a perfect and complete gift. The issue of delivery is considered below.

Document 3.3 - Letter of Sidney Nolan to Mr Phillip Von Schantz dated 12 October 1975

The letter of Sidney Nolan to Mr Von Schantz dated 16 October 1975 stated that "We look forward very much to your visiting London after 10 November when we can arrange everything to do with the catalogue..." The handwriting was identified by Ms Jinx Nolan as that of Sidney Nolan.

I consider that any relevant statement is admissible pursuant to s.51(a) and (b) of the Act. However, that statement is not that "Royal Hotel" 1948 belongs to Cynthia, but simply that Sidney plans that "we" (in context, Cynthia and/or himself) intend "to arrange everything to do with the catalogue etc". There is no evidence that the proposed meeting occurred or that Sidney Nolan himself provided the attribution of ownership. The statement establishes that Sidney Nolan intended to be involved in preparation of a catalogue which ultimately made such an attribution. In my opinion, exercising the required scrutiny and caution, it goes no further than that. If, however, on a proper construction, the attributions were made and approved of by Sidney Nolan, it would be necessary to establish the further element of delivery in order to prove a valid gift.

Document 3.4 - Letter from Phillip Von Schantz to Lord Clark dated 20 November 1975

The letter of Phillip Von Schantz (director of the Moderna Museet) to Lord Clark dated 20 November 1975, refers to the proposed Retrospective Nolan Exhibition and the catalogue. It asks consent to translate Lord Clark's introduction to Colin MacInnes' book on Nolan, "an idea that Mr Nolan himself agrees on". I consider that any relevant statement would be admissible as a business record of the Moderna Museet, pursuant to s.55(1)(b) of the Act. The plaintiff contends that the statement supports the fact of ownership by Cynthia, by demonstrating the participation of Sidney Nolan in a catalogue which attributes ownership to her. While I consider that the statement is admissible, I attribute little weight to it. The fact that a third party asserts that Sidney Nolan agreed to the use of a translated introduction for the catalogue has no substantive connection with any attribution of ownership in that catalogue.

Document 3.5 - Letter of Phillip Von Schantz to Cynthia Nolan dated 10 December 1975

The letter states that "the two paintings `Robbed' and `Soldier' will be mentioned in the catalogue as belonging to you". It also mentions arrangements for the exhibition and hotel bookings.

In my opinion, any relevant statement would be admissible, as being or forming part of a record relating to the business of the Moderna Museet pursuant to s.55(1)(b) of the Act.

However, in determining weight, I do not accept the plaintiff's submission that the letter "confirms that Cynthia Nolan was lending her own works for the exhibition in accordance with the usual practice of Sidney and Cynthia Nolan". In my opinion, that begs the question. The statement establishes no more than that Cynthia instructed the Moderna Museet to make the attribution. There is no evidence that Sidney Nolan participated in or approved that instruction.

Document 3.6 - Sidney Nolan's pocket diary for 14 January 1876

The diary extract of Sidney Nolan's pocket diary for 14 January 1976 records for 14 January 1976 "Go Stockholm". The handwriting was identified by the plaintiff as that of Sidney Nolan.

I consider that the only relevant statement in the extract is admissible pursuant to s.55(1)(a) of the Act, as being a statement made by a person, Sidney Nolan, who may be inferred to have had personal knowledge of the matters dealt with therein at the time of making it, and who, although not called as a witness, is now dead.

Section 55(1)(b) of the Act would constitute an alternative basis for admissibility as, although some purely personal matters are included, professional commitments are also recorded.

However, while I consider that "Go Stockholm" is admissible because it tends to establish the fact of Sidney Nolan's attendance at the date of exhibition and hence his participation in, or knowledge of the contents of the relevant catalogue, that tendency is very slight. Even if it could be inferred from this that Sidney Nolan attended the exhibition, it throws no light on his knowledge and approval of the attribution of "Royal Hotel " 1948 as "tillhor Mrs Cynthia Nolan".

Document 3.7 - Photograph (signed "S" on back) of Cynthia Nolan in Stockholm standing in front of poster advertising the Moderna Museet exhibition in 1976

This is a photograph identified by the plaintiff as being of Cynthia Nolan, taken in front of a poster of the Moderna Museet Exhibition in Stockholm in 1976. There is an "S" on the back identified by Ms Jinx Nolan as being written by Sidney Nolan.

"Statement" is widely defined in s.3 of the Act to include any representation of fact, whether made in words or otherwise. If the statement to the effect that Sidney Nolan attended the exhibition could be elicited from the photograph, it would be admissible, but I would place no weight on it, for the reasons outlined in relation to document 3.6. In any event, I do not consider that the plaintiff has established that Sidney Nolan took the photograph, although he apparently wrote the initial "S" on the back.

Document 3.8 - Letter from Cynthia Nolan to Phillip Von Schantz dated 27 November 1975

The letter of Cynthia Nolan to Phillip Von Schantz dated 27 November 1975 includes the statement that "going through the paintings you have chosen I find 2 more belonging to me "Robbed", ripolin on board 36 x 48 and "Soldier", pva on board 38 x 36."

Although I consider that any relevant statement is admissible pursuant to s.55(1)(a) of the Act, and as a business record of the Moderna Museet pursuant to s.55(1)(b), I would place little or no weight on it in establishing Cynthia's ownership of "Royal Hotel" 1948, for the reasons set out in relation to document 3.5.

Document 3.9 - Letter from Cynthia Nolan to Phillip Von Schantz dated 14 December 1975

The letter of Cynthia Nolan to Phillip Von Schantz dated 14 December 1975 includes the statement "I notice Sidney has included one more of mine, the Chinese Cock".

In my opinion, any relevant statement would be admissible pursuant to s.55(1)(a) and s.55(1)(b) of the Act, on the grounds set out in relation to document 3.8.

For reasons set out in relation to document 3.8, I would attribute no weight to the statement in establishing Cynthia's ownership of "Royal Hotel" 1948. On the contrary, the statement tends to cast doubt on Cynthia's ownership, in that it clearly indicates that Sidney Nolan continued unilaterally and independently to deal with, or make available, a painting over which Cynthia had made an assertion of ownership.

Document 3.10 - Letter of Phillip Von Schantz to Cynthia Nolan dated 27 November 1975

I consider that any relevant statement would be admissible pursuant to s.55(1)(a) of the Act as the maker, Mr Von Schantz, may be inferred to have had at the time of making the statement, personal knowledge of the matters dealt with by the statement and although not called as a witness, is dead.

Further, a relevant statement would be admissible pursuant to s.55(1)(b) of the Act as being or forming part of, a record relating to the business of Moderna Museet made from information supplied by Mr Von Schantz, who may reasonably be inferred to have had personal knowledge of the matters dealt with, and who although not called as a witness, is now dead.

In the letter Mr Von Schantz informs Cynthia that work with the catalogue is "well under way" and "we are very happy that the paintings "Royal Hotel" and "Convict Crossing Creek" will be included and we will certainly mention you in the catalogue as the owner of them".

Although the statement is admissible, I do not accept the plaintiff's submission that it "confirms that Cynthia Nolan was lending her own works for the exhibition". Rather, the letter suggests that Cynthia had asserted her ownership of "Royal Hotel" 1948 to Mr Von Schantz in a communication to which Sidney Nolan may not have been party and had elicited an acknowledgment of her asserted ownership in the catalogue.

Conclusion on Donative Intention - "Royal Hotel" 1948

At a glance

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Judgment (349 paragraphs)

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Legislation Cited (12)

Cases Cited (15)