Nolan v Nolan & Ors [2004] VSCA 109

Nolan v Nolan & Ors [2004] VSCA 109 - VSCA 2004 case summary — Zoe

[8]

For that purpose I shall set out only the barest outline of the facts relating to the first issue in the appeal for they are more than adequately summarised in the joint judgment. Of the three paintings in question, "Italian Crucifix" was painted by Sidney Nolan in 1955, "Hare in Trap" was painted in 1946 and "Royal Hotel" was painted in 1948. It was contended that some time in or about 1955 Sidney Nolan gave his wife Cynthia "Italian Crucifix" and that a number of events and circumstances from that time on, particularly the showing of the picture at certain exhibitions, certain correspondence and other dealings should have led to the conclusion by way of inference that the painting had been given to Cynthia Nolan. The same was alleged by reason of certain exhibitions and the surrounding events relating to each of the other two paintings, but from later times, in the case of "Hare in Trap" from about 1970 and in the case of "Royal Hotel" from about 1974 onwards. It is sufficient to say that I agree that a combination of these factors looked at as a whole may have established a circumstantial case that each painting was given to Cynthia Nolan. Having regard to her Honour's otherwise detailed and careful findings and reasoning relating to so many of the individual incidents relied on by the appellant, it is unfortunate that in the case of each painting those matters were not, for the most part, looked at as a whole in order to determine whether the appellant had made out her claim. Even in relation to the admission of evidence of certain documents, it was open to the judge, having regard to the mode of trial agreed upon, to have regard in some cases to other relevant facts in order to determine admissibility, although that may not have made every such document admissible or admissible for all purposes at the trial. Even assuming that no additional matter was admissible, an accumulation of all the relevant circumstances pointed at least to the possibility that the relevant burden of proof might have been satisfied, especially in relation to the painting "Italian Crucifix" where there was, in particular, a variety of events and materials over a long period which should have been looked at together in order to see whether the appellant's claim was made out. I should emphasise, however, that I agree with the other members of the Court that the proper outcome was such as to require only a re-trial.[3] The material was not such that this Court could independently reach a conclusion in all the circumstances, so that it does not follow that the Court is necessarily satisfied that each of the gifts were made out. It follows equally that the Court is not satisfied on the present material, whatever might have occurred on a re-trial, that Sidney Nolan converted any one or more of the three paintings, let alone that he did so consciously.

[17]

As to any acts of ownership after 26 November 1976[4], again there was negligible evidence apart from what I have already set out. In practical terms each of the paintings was in Sidney Nolan's custody or control (whether sole or joint) before that date inasmuch as it seems likely that they were in the Putney house which they jointly occupied, albeit that Cynthia Nolan owned the premises. Thereafter, by reason of the impending transfer of possession pursuant to the sale, the paintings had to be moved but, apart from saying that in general terms they were under Sidney Nolan's control, there was no evidence of any act by him which asserted his property in them in the weeks which had followed thereafter. At most it could be said that the paintings were moved for safekeeping and thereby remained in Sidney Nolan's custody or control. To the extent that there was any apparent assertion of any ownership rights by Sidney Nolan, that came first when the paintings "Royal Hotel" and "Hare in Trap" were placed on the walls of the premises which the first respondent and Sidney Nolan then occupied, but it is by no means clear when that happened and it is indeed highly unlikely that it occurred before probate was taken out by the executors of Cynthia Nolan's English will barely six weeks after her death. Any more obvious assertion of ownership rights by Sidney Nolan's attributing ownership to himself in the several exhibitions which followed, which included the exhibiting also of "Italian Crucifix", did not occur until 1978 or 1979 at the earliest. Consequently, if any of the three paintings was owned by the estate of Cynthia Nolan, there seems to have been no act of conversion until, in two of the cases, they were hung on the walls of the two premises occupied by Sidney Nolan and in the case of "Italian Crucifix", until it was exhibited. There can be no doubt, however, as counsel for the respondents conceded at trial, that those would have been acts of conversion if, but only if, the paintings had been owned by Cynthia Nolan.

[18]

As I have earlier stated, I accept the conclusions stated in the joint judgment as to the many arguments put forward in support of the appellant's case in relation to the ownership of each of the three paintings and to the questions of evidence which remained alive on this appeal. I reiterate that, although I agree that the question of ownership was not in the end satisfactorily dealt with by the learned trial judge, despite her very detailed and careful reasoning on many issues, the materials are not such as to justify this Court's concluding that the paintings had been given to the appellant's mother and in the course of the appeal both parties accepted that the matter would otherwise have to be sent back for further trial if a conclusion in favour of the appellant were reached. None of the other matters raised in the course of the appeal, except the limitations issue, are in the circumstances of any consequence. Although it would have been necessary to say more as to the various rulings on evidence and the way in which they might have been approached were there a need for a second trial, these proceedings can, nevertheless, be resolved by a consideration of the second principal point raised on the appeal, being the issue whether the appellant was barred by the operation of any statute of limitation at the trial. The sections pleaded were s.3 of the Limitation Act 1980 (U.K.) and s.6 of the Limitation of Actions Act 1958 of this State but, on the appeal, there was no concentration on those sections and it will appear below that s.22 of each Act is the preferable section to apply if s.21 does not take the appellant's claims outside the Act altogether. I should add that in the course of the appeal the parties appeared to concede that by reason of recent High Court authority the acts of alleged conversion had to be dealt with according to English law and that consequently the provisions of the Limitation Act 1980 (U.K.) were the relevant provisions, although the similarity of the provisions makes the point of little consequence.

[28]

The essence of a claim against such a person was, and I believe still is (subject to s.28 of the Administration of Estates Act), that the person has purported to act as an executor or administrator of a deceased's estate, thereby leading others to believe that he or she has the power to deal with the estate and its assets. As is said in Bacon's Abridgment[9], even apparently slight acts "are the only indicia by which creditors can know against whom to bring their actions". Any action had necessarily to be brought against such a person as ostensible personal representative of the relevant estate who was then liable, but only to the extent of the assets with which he or she had purported to deal. As the authorities demonstrate, even minor acts of dealing with property interests were sufficient to constitute a person an executor de son tort, but only if it could be inferred that the person was purporting to act in that role. Some of the language of the earlier cases and textbooks was not always entirely clear in this respect, largely, I believe, because it was well known that liability would attach only if the person could be seen as holding himself out in one way or another as an executor or administrator. Careful examination of those authorities, nevertheless, emphasises the necessary connection, howsoever slight the dealing with actual property might be in the first instance. Moreover the authorities made clear that if there had been in fact a grant of probate or letters of administration, then a mere attempt later to obtain the property of a deceased and even purporting to act as executor or administrator, would not ordinarily clothe that person with the responsibilities of an executor de son tort, because there was then a person who might be sued properly in that role as liable for the debts and other liabilities of the estate. Likewise it was seen that that person might sue in the ordinary way for recovery of any property over which some other person might seek to exercise control.

[38]

The significance of this analysis in the present case is that there is no evidence of any acts taken by or on behalf of Sidney Nolan before the grant of probate on 12 January 1977 which could fairly be viewed as the basis from which an inference might be drawn that he was purporting to assert some right as executor (or trustee) over his deceased wife's estate. Possibly in modern times such an inference is harder to draw, inasmuch as the nature of grants of representation and the requirements for grants may now be better known and understood, so that acts performed in recent times may not always lead to the necessary inference. However, in the present case the most that can be said is that, in clearing out the premises in which they had lived together as man and wife, Nolan took into his custody the three paintings, albeit that the evidence as to what he did with at least two of them is problematic. For present purposes one may assume that he did obtain custody or possession of the three paintings, but in my opinion that is not enough. There must be evidence that the act in question involved an assertion of executorial power, whether it be over chattels or land, and clearly there was no such act of which there is evidence, at least to my knowledge. The acts performed later, in 1978 and subsequently, by which the paintings were exhibited under his own name may be quite a different matter, but by then a grant of probate had been made by the English court and, in accordance with the authorities to which I have referred, no such inference against Sidney Nolan could then be drawn, nor on a proper understanding of the rule would there be any purpose in doing so, as there were by then properly appointed executors who had full rights to administer the estate. It was they who then had the right to sue in detinue or conversion. For these reasons I would not accept that any of the acts performed by Sidney Nolan, so far as they are known to the Court, amounted to acts of a kind which would have constituted him an executor de son tort.

[50]

The subject of constructive trusts has over the years become contentious and differences in analysis have tended to confuse rather than inform. What has been described so far, however, supports the conclusion that trustees de son tort intend, by their actions, to assume the role of trustees and, at least in the first place, to take control of trust property for the benefit of others rather than for themselves. If the word "intermeddle" be used, it tends to confuse the issue to the extent that it suggests wrongful intermeddling, which frequently gives rise to cases where the question of liability is in issue, rather than circumstances in which the original intention is merely to act in the role of trustee in relation to certain property. These conclusions are consistent with what is said in Jacobs on Trusts and in Ford and Lee's Principles of the Law of Trusts[34], though it must be said that some differences appear in articles such as those by J.D. Heydon: "Recent Developments In Constructive Trusts"[35] and R.P. Austin: "Constructive Trusts"[36]. Each article is critical of Ungoed-Thomas, J. in Selangor, but the latter is more cautious in his criticism. See also Cope: Constructive Trusts[37] and Ong: Trusts Law in Australia[38]. On this assumption I can see no evidence, even accepting the appellant's factual contentions, that Sidney Nolan purported to act as trustee of the paintings or any other property and thus cannot be characterised as a trustee de son tort for the purpose of the appellant's arguments. Nor is it necessary for the time being to examine those authorities which would seem to characterise the trustee de son tort as an "express trustee". See e.g. Soar v. Ashwell[39], as discussed in Taylor v. Davies[40]. See also Cohen v. Cohen[41]. Those cases are often seen as having been largely influenced by the limitation statutes applicable at the time, although that may be an over-simplification: cf. Paragon Finance plc v. D.B. Thakerar & Co.[42] per Millett, L.J.

[61]

The early text-writers were clear in their approach to this statute, seeing it as expanding the existing rules in only a limited way, essentially to bring perpetrators of deliberate fraud relating to personalty within the category of executors de son tort, in particular those who procured others to become administrators in order to prefer their claims. For example, Swinburne on Testaments, after giving a very free precis of the section, turned immediately[45] in the same footnote to examples of dealing as an executor de son tort and in particular to mere possession of goods "without doing any act as an executor". Of this he commented that Dyer in his report of Floyer v. Southcote (otherwise known as Fleier and White v. Southcot)[46] considered that "bare possession of the goods made the person executor de son tort, because by that means the creditors had notice whom they might sue"[47], but that Henry Rolle in his Abridgment of the Common Law[48] said of the case that "it did not, for if an action be brought against him as executor de son tort, he might discharge himself by special pleading, showing how and in what manner he intermeddled" (i.e., one may assume, properly). The case clearly preceded the statute, but Swinburne did not perceive that there had been any real change when he described the case in the footnote. In Wentworth[49] the section is also summarised but in terms whereby the author suggests that it was entirely consistent with existing law: "Here we have a touch of all the parts precedent, or at least three of them", the three relevant parts being the creation of an executor de son tort "though intermeddling under the title of an administrator", secondly, the limit to the charge incurred being the limit in damages to the amount or value of goods taken into possession and, thirdly, an allowance of debts owing to the executor, which the author concedes is more than was permitted under the general law. The statute is briefly referred to in Godolphin[50] but in terms which suggest that the only change was that persons properly appointed administrators may nevertheless be treated as executors de son tort in the circumstances described in the preamble. Finally in Bacon's Abridgment, the first edition of which was published well over a hundred years later, the same cautious approach appears to have been taken to the section.[51] The author notes that "notwithstanding this", there were a number of acts which a stranger might do "without running the hazard" of making that person an executor de son tort, such as feeding cattle, taking an inventory of the estate and paying debts, which were "esteemed offices of kindness and charity".

[85]

Nevertheless it might be said that Sidney Nolan, on this assumption, was an executor de son tort and thereby a personal representative within the meaning of the term as used in the Limitation Act. This would carry with it the benefit for the appellant that any personal representative would be a trustee, within the meaning of that Act, and so the period for making a claim might be deferred by reason of the provisions of s.21. However to achieve this end it would be necessary to show that an executor de son tort was both a "personal representative" and thereby in turn a "trustee" for the purpose of the Limitation Act. The definition adopted from the Trustee Act by the Limitation Act shows clearly enough that a personal representative is comprehended within the definition of "trustee" for the purposes of the Limitation Act, but that is of no avail unless an executor de son tort is either directly or indirectly to be treated as a trustee for that purpose. It is not possible to take that step, however, unless the executor de son tort is in fact a personal representative or unless for other reasons, i.e., without having regard to any of the relevant definitions, that person is a trustee. The chain of definitions does not on its face permit that course to be taken. For the purposes of the Limitation Act one has to go to the relevant definition in the Trustee Act but that in turn brings with it the limited definition of "personal representative" in that Act which clearly must be the definition for the purposes of s.68(17). Although in other legislation, including the Administration of Estates Act (see s.55(1)(ii)), the definition of "personal representative" would be wide enough, the narrower definition in the Trustee Act is the one applicable here. Unless one takes a very broad approach to the use of the term "personal representative" in the definition of trust in s.68(17), it is not possible to conclude that an executor de son tort is a "personal representative" and thus a "trustee" for the purposes of the Limitation Act.

[86]

In my opinion any loose approach to the terminology carefully worked out in the legislation cannot be adopted. Not only are executors de son tort not true personal representatives but, in addition, they can be sued only as if they were personal representatives and in respect of only some liabilities which those persons might incur as personal representatives, as well as certain liabilities which are peculiar to that particular role. Thus an executor de son tort should not be treated as a "personal representative" for the purposes of the Limitation Act. The same conclusion was reached by Aldous, L.J., with whom the other members of the Court of Appeal agreed[66], in James v. Williams[67]. His Lordship said that: "It would seem from [the] definition that an executor de son tort does not fall within the term personal representative." This view was apparently adopted from the article by Frank Hinks to which reference has already been made.[68] Mr Hinks had criticised the editors of the 3rd edition of Halsbury for expressing a view to the contrary, but he explained it by saying that it might only be treated as correct if it could be "proved that in all cases an executor de son tort is a constructive trustee, for then an executor de son tort, like an executor, will always be barred from relying on the limitation periods to establish title against those interested in the estate".[69] By the time the Court of Appeal came to decide James v. Williams the 4th edition of Halsbury had been published and the matter had been corrected in accordance with Mr Hinks' views.[70] It is unfortunate, with respect, that Aldous, L.J. continued his judgment by stating that: "Further, the definition of personal representative in the Administration of Estates Act 1925 does not suggest otherwise." What Mr Hinks had said required drawing a contrast between the present definitions and the definition of "personal representative" in the Administration of Estates Act which clearly does include an executor de son tort. One must assume that is all that his Lordship intended, but the statement could be somewhat misleading and might suggest to the reader that his Lordship had misunderstood the operation of the section in the Administration of Estates Act and thought that in some way it was relevant to the definitions presently in issue. It would seem, however, that he was somewhat cryptically referring only to the difference from the other definition. No other authority was cited in either article or judgment, nor have I found any other discussion of the issue. As authority it is perhaps unfortunate that it appears in a judgment which has been subjected to criticism to which reference will be made in due course, but on this question the answer seems correct.

[88]

If Sidney Nolan as a hypothetical executor de son tort was not a personal representative and thereby liable as a trustee within the relevant definition, it was further contended that he was in any event a constructive trustee and therefore a "trustee" within the meaning of s.21(1)(b) of the Limitation Act, again by reason of the fact that he was an executor de son tort. Of course the same line of reasoning would have brought him within s.21(3) and thus have imposed a six year limit (as the ordinary limit for a claim "to recover trust property"), but, whether or not the appellant was a "beneficiary" within that sub-section, the overriding time limit for claims concerning personalty against deceased estates, including those involving a "breach of trust" as well as other claims, would appear to be that set out in s.22, which provides for a 12-year limitation period[71] in which to sue for "any claim to the personal estate of a deceased person or to any share or interest" therein. Of course the action is not brought against the estate of Cynthia Nolan, an estate in which the appellant clearly had an interest, but is brought against another estate and against a beneficiary who has taken thereunder. On a narrow view of s.22 the claim is made against the "wrong" deceased person's estate, but the right the appellant asserts is in respect of three paintings which formed part of the personal estate of another deceased person, namely her mother. If the section were expressed to provide a limit for a claim "to recover" any part of the estate, that might be confined to the deceased estate in respect of which the plaintiff has an interest, but it has been held by the Court of Appeal (see Re Diplock's Estate[72]) that the section also applies to claims against overpaid or wrongly paid beneficiaries.[73] If that be the case, subject only to the operation of s.21(1) and (2), there would seem little reason not to bring within the section (and thus impose a 12-year limit) a claim to recover part of the personal estate of a deceased person which had been wrongly taken by a third party, as is asserted. Of course, merely because the items claimed once formed part of the personal estate of a deceased person would not be sufficient; there must be some element which involves an assertion that the personal estate in question has not been distributed in accordance with the terms of a will or upon an intestacy by the personal representative, whatever reason there may have been for the failure to deliver the items, pay over moneys or whatever else was required to satisfy the claims against the estate. That a broad interpretation of s.22 should be given was emphasised on the appeal from Re Diplock's Estate to the House of Lords, in Ministry of Health v. Simpson[74] where Lord Simonds, with whom the other members of the House concurred, said "there is nothing in the ancestry of this section[75] which justifies, much less requires, a narrower meaning being given to its words than they ordinarily bear".

[91]

The one authority on the section which has been drawn to our attention is the decision of the Court of Appeal in James v. Williams[77]. It took a broad approach to the question, accepting that, but not fully explaining why, executors de son tort may in certain circumstances be treated as constructive trustees, especially for the purposes of the Limitation Act. As already noted, it has been the subject of considerable criticism. I will not examine all of that criticism but merely observe that in the latest[78] edition of that work of authority Underhill and Hayton on the Law of Trusts and Trustees, Professor Hayton makes three scathing comments in his footnotes, in particular contrasting the analysis of constructive trusts in that case with that in Paragon Finance[79], as expressed in the Court of Appeal by Millett, L.J., a case to which it will also be necessary to return. In Paragon Finance Millett, L.J. had carefully distinguished between institutional constructive trustees and remedial constructive trustees, asserting that the latter only held the relevant property on trust because of the very breach of duty made out in the specific litigation. As to this distinction Professor Hayton says[80] that it was "ignored" in James v. Williams, and indeed the case was not cited to the Court in the latter case and no reference was made to it. Bluntly Professor Hayton observes[81] that James v. Williams "in ignorance of Paragon Finance held no limitation applied to an executor de son tort due to Limitation Act 1980, s.21(1)(b) but it would seem that the executor de son tort intermeddled on purely selfish (not altruistic) grounds so that he should have fallen outside s.21(1) and within s.21(3)". Again in the latest edition of Lewin on Trusts[82] the learned editors, when referring[83] to James v. Williams, roundly criticised it in their treatment of the application of the Limitation Act to trustees de son tort, noting that the decision did not refer to the distinction between the two principal classifications of constructive trustees and assumed that, once a constructive trusteeship was established, s.21(1)(b) would apply.[84] Ford and Lee are more cautious, perhaps because the remedial constructive trust has been applied rather more generously in this country: cf. e.g. Giumelli v. Giumelli[85] and Parsons v. McBain[86]. At para. S18180[87] they state that James v. Williams "may be open to doubt following Paragon" [88].

[116]

Then in Clay the High Court again had to consider constructive trusts, as well as the relevant West Australian limitation provisions, but in a context where they ultimately held that the relationship of guardian and ward was not that of trustee and beneficiary but a fiduciary relationship with particular characteristics. Considerable care has to be taken in relation to what the Court said as to the limitation rules because the statutory provisions were closer to those which apply in Canada and which applied in England before 1939. More importantly the case was one in which Paragon Finance was not only cited but was referred to with approval at least on one subject[116], insofar as it was said that time did not run in favour of a trustee against beneficiaries because the possession of trust property was not for the trustee's own enjoyment but was for the benefit only of the beneficiaries. One of the critical matters upon which the Court[117] placed reliance was that by force of the Guardianship of Children Act 1972 (W.A.) there was "no vesting of any property in the guardian to be held on the terms of any trust". Thereafter it was pointed out that guardians are entrusted with only the possession and management of a ward's property but does not take title to it. Actions, for example, for the recovery of property are brought in the name of the ward not the guardian. So the Court held[118], consistently with the view expressed by Dixon, J. in Countess of Bective v. Federal Commissioner of Taxation[119], that the relationship of guardian and ward is not that of trustee and beneficiary "but is a fiduciary relationship with particular characteristics". One should be careful, however, not to take the decision further because the relevant statutory exception in the Limitation Act 1935 (W.A.) required proof of an express trust, so that the establishment of any constructive trust would have been irrelevant. To that extent the Court's approval[120] of Taylor v. Davies, although seemingly consistent with Lord Millett's approval of it, was primarily based upon its construction of the relevant limitation provision relating to "express trustees".

[132]

More importantly, the appellant's allegation requires that Sidney Nolan be treated as holding as trustee and not adversely to the interests of any beneficiary. To create an institutional constructive trust there must be some act which either directly displays such an intention in the supposed trustee or some acts or circumstances from which it may be inferred that he had an intention to act as a trustee or fiduciary or in some other role which imported an obligation to hold property as if he were a trustee. Again there have not been shown to be any such acts or circumstances. If the allegation be true, there would obviously here have been a contrary intention, that is, an intention to deal with the paintings as if they were his own, if that be established. In the broadest of terms even James v. Williams is consistent with the need to establish a holding of the relevant property with an intent to do so on behalf of others and in particular beneficiaries or next-of-kin. There is no basis in English law, as I would understand it[130], for holding that a remedial constructive trust should have been applied at the relevant time to impose the alleged trust, nor to establish that the general provisions of ss.21 and 22 of the Limitation Act do not apply so as to bar the appellant's claim. Section 21 assumes that there is a trust already in existence which is affected by the activities of the person alleged to have wrongly dealt with the goods or other property.[131] Nothing in the materials would import a trust of the requisite kind. A simple solution to like effect in a case involving a stranger to an estate who dealt with the deceased's papers as if his own and then squatted in the subject premises was reached by an experienced chancery judge Dillon, L.J. on behalf of the Court of Appeal[132] in Pollard v. Jackson, who thought the conclusion reached by the judge below was "very strange" and "wholly out of kilter" with clear principle.[133] There being no trust at the relevant time, the appellant's right to sue has not been preserved by the statute.[134]

[138]

Although Cynthia Nolan died in late 1976, as has already been mentioned, Jinx Nolan did not institute the present proceeding until 13 September 2001. The first of the defendants to the proceeding was Mary Nolan, the widow, and sole beneficiary under the will, of Sidney Nolan. Mary Nolan was in possession of the three paintings in question following the death of her husband. She was sued both in her personal capacity and also as Executrix of the estate of Sir Sidney Nolan. The second defendant, Sotheby's Australia Pty Ltd ("Sotheby's") was commissioned by Mary Nolan to auction on her behalf, on 16 September 2001, a number of works by Sidney Nolan including the three paintings the subject of this proceeding. The third and fourth defendants respectively were Lorraine Diggins and Lorraine-Diggins Fine Arts Pty. Ltd., one of whom, it was said, purchased "Royal Hotel". Eva Breuer was the fifth defendant.[135] "Hare in Trap" was sold to her at the auction of 16 September 2001. Jinx Nolan sought to explain the delay in instituting her proceeding in the following way. She contended before her Honour that she believed from a date prior to her mother's death in 1976 that "Hare in Trap" had been the property of her mother and hence constituted an asset of her estate, but it was not until approximately September 2001 that she acquired the belief that she had proof of Cynthia Nolan's entitlement to that and the other paintings sufficient for her to press her claim in court. More specifically, the appellant said that she believed on the basis of correspondence with her mother that her mother owned "Hare in Trap" but because she had no other evidence of her title, she felt unable to press the claim earlier. When the appellant became aware in about mid-1997 that "Hare in Trap" and other Nolan paintings, including "Italian Crucifix" and "Royal Hotel", were being offered for sale in London, she sought further legal advice on her possible claim to "Hare in Trap", but was advised that the evidence which she thought was constituted by the correspondence from Sidney Nolan, was insufficient to establish title.

[157]

After the conclusion of the Nolan exhibition at Whitechapel Gallery, the British Arts Council proposed to hold a "travelling exhibition" of Nolan paintings lent to it by the various owners of the paintings pursuant to loan agreements. For the purpose of borrowing Nolan paintings from Sidney Nolan, Cynthia Nolan and Jinx Nolan, the Council wrote to Sidney Nolan on 9 July 1957 confirming that they were prepared to lend their respective paintings to the Council. It seems that a little later, on 31 July 1957, the director of the Council wrote to Sidney Nolan enclosing a loan agreement for execution by the three then proposed lenders. The book of documents which was used at the trial contains copies both of the original of the signed letter of 31 July 1957 and of the unsigned copy. For reasons which are not clear - but presumably due to inadvertence - the appellant sought to tender only the unsigned copy of the letter as a business record of Sidney Nolan pursuant to ss.55(1)(b), 55(5) and 55C of the Evidence Act. It was sought to show by such evidence that Sidney Nolan had received the loan forms and arranged for Cynthia Nolan to execute the loan agreement in respect of, inter alia, "Italian Crucifix", thereby implicitly acknowledging her ownership of it. Her Honour, however, ruled that the document was inadmissible because it was not signed and that there was no evidence that Sidney Nolan had received it. This ruling is challenged by the appellant. The copy of the signed letter which, as I have said, was not sought to be tendered contains a handwritten notation "14/8/57" and next to that, the mark "3". Such a document, had it been tendered, would have established receipt of it by Sidney Nolan. Be that as it may, the appellant tendered in evidence under ss.55(1)(b) and (5)(a) of the Evidence Act a copy of the loan agreement dated 14 August 1957 between Cynthia Nolan and the British Council in respect of "Italian Crucifix" which was signed by her as "owner" of the painting. By itself, this document plainly does not constitute an admission by Sidney Nolan against his interest although it does show that Cynthia Nolan claimed ownership of it. It may also be arguably relevant to whether she had possession of the painting, but those matters were not considered by her Honour.

[164]

The next group of documents were relied on by the appellant to establish that Sidney Nolan made a gift of "Hare in Trap" to Cynthia Nolan and acknowledged her ownership of the painting. The first such document - which was admitted into evidence - is a handwritten list prepared by Sidney Nolan in early 1970 in which he sets out the names of the paintings that were displayed at the exhibition held in 1970 at the New Metropole Gallery, Folkestone. He described one of the paintings as: "Cynth 13. Hare in Trap 1946". (He also wrote "Cynthia" next to the names of the paintings that were numbered 33 and 34 on that list.) The next document relied on by the appellant in respect of that painting was the catalogue for that exhibition which was also tendered in evidence. It records "Hare in Trap" as one of the paintings (Item 14) that was exhibited. Relevantly, it states that "Hare in Trap" was "Lent by V.C. Nolan". It was common ground that "V.C." was Cynthia Nolan. The appellant contended that, since Sidney Nolan participated in the preparation of the exhibition and in particular, the catalogue in respect of it, he must be taken to have accepted the correctness of the attribution in the catalogue of the ownership of "Hare in Trap" to Cynthia Nolan. The evidence as to Sidney Nolan's participation in the preparation of the catalogue came principally from Professor Eveleigh. While her Honour rejected his evidence that he had been given Sidney Nolan's handwritten list of the paintings for that exhibition, and this finding is not challenged on appeal, there was no such rejection by her Honour of the balance of Professor Eveleigh's relevant evidence which, according to the appellant, showed that Sidney Nolan played an active part in finalising the catalogue and paintings that were to be displayed at the New Metropole Gallery. Her Honour, however, rejected this claim saying that she was unable to construe those words as an unequivocal acknowledgment by Sidney Nolan of Cynthia Nolan's ownership of "Hare in Trap". Her Honour also concluded, again solely by reference to the document, that the catalogue did not establish that Sidney Nolan approved the public ascription of "Hare in Trap" to Cynthia Nolan.

[173]

That Sidney Nolan acknowledged that he made a gift of "Royal Hotel" to Cynthia Nolan, said the appellant, is further demonstrated by a note that he wrote in his notebook in approximately 1974 or 1975 in relation to the three paintings before they were exhibited in Stockholm in 1976. The extract from the notebook was admitted into evidence as a record of Sidney Nolan pursuant to s.55(1)(a) and (5)(a) of the Evidence Act. On the page in question he wrote in its top left hand corner: "Lanyon" and immediately below that, in sequential order: "Great Herron, Convict crossing River, Robbed, Royal Hotel". Opposite and between the levels on which "Convict crossing River" and "Robbed" appear, Sidney Nolan wrote the letter "C". Immediately below "Royal Hotel" a line has been ruled and below it he wrote "Death of Captain Frazer". We have already mentioned that "Robbed", "Convict crossing River" and "Royal Hotel" were listed in the catalogue of the Moderna Museet as having been loaned to the gallery by Cynthia Nolan. The evidence before her Honour showed that "Great Herron" and "Convict crossing River" were given by Cynthia Nolan to the appellant in 1976 and have remained in her collection, and that "Death of Captain Frazer" was given by Sidney Nolan to the Lanyon Gallery in Canberra which is dedicated to housing Nolan paintings and material pertaining to the artist. The inference that was sought to be drawn by the appellant was that Sidney Nolan had identified in his notebook four paintings which he acknowledged as being owned by Cynthia Nolan, one of which included "Royal Hotel". Her Honour first considered, for the purpose of determining the admissibility of the statement contained in the document, whether the statement tended to establish a fact. It was concluded by her Honour that the listing by Sidney Nolan of the titles of several paintings and the writing of the letter "C" did not establish Sidney Nolan's acknowledgment that they belonged to Cynthia Nolan. Her Honour went on to state that even if such a statement could be construed from the document, no weight could be attributed to it by reason of the letter "C" being consistent with meanings other than "Cynthia Nolan".

[176]

As we have noted earlier, probably the most critical part of the appellant's case was that Sidney Nolan had inferentially acknowledged that the three paintings belonged to Cynthia Nolan. As we have said, it was submitted on appeal that her Honour's critical error was not to assess this claim by reference to the whole of the evidence, but to do so by examining each item of evidence in isolation from other material and concluding on the basis of such a piecemeal analysis that it could not be inferred that Sidney Nolan made the acknowledgment contended for. It was the appellant's case as we have noted, that the cumulative effect of the documentary evidence gave rise to the inference that Sidney Nolan had, at all relevant times, treated the three paintings as being the property of Cynthia Nolan. The evidence also established, said the appellant, that Cynthia Nolan claimed that she owned the paintings and consistent with that assertion, exercised her possession and control over them. Moreover, it was claimed that the evidence showed that each of Sidney Nolan and Cynthia Nolan had a collection of Nolan paintings which were, from time to time, made available by them for exhibitions. The whole of the evidence, said the appellant, led to the ultimate conclusion that, on the balance of probabilities, Sidney Nolan had made an absolute gift of the three paintings to Cynthia Nolan so that, when she died, they formed part of her estate. But, it was claimed, her Honour failed to consider the totality of the evidence and, therefore, her conclusion that the appellant had failed to prove her case was fatally flawed. The respondents, on the other hand, argued that her Honour did have regard to the whole of the evidence and did not confine her analysis to a separate examination of each document. It was said that a fair reading of her Honour's reasons made it plain that she examined the appellant's case in the context of the totality of the evidence and concluded that it did not give rise to the inference contended for. In analysing her Honour's approach, said the respondents, it should be borne in mind that the judge was requested by the parties to defer ruling on the admissibility of individual documents until after all the evidence had been presented and as part of her reasons for judgment. Thus, it was argued, her Honour necessarily had to examine each document separately for the purpose of determining its admissibility, but her conclusion that the claimed inference could not be drawn was made on a consideration of the whole of the evidence.

At a glance

Court

Decision date

Before

Source

Judgment (304 paragraphs)

Parties