Blessington v Ainsworth

[1993] FCA 1075

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	1	NG 886 of 1992
STATE OF NEW SOUTH WALES	1

BETWEEN: JOHN EDWARD BLESSINGTON &

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Applicants

AND:	JAMES PETER AINSWORTH First Respondent
AND:	COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Second Respondent

EX TEMPORE JUDGMENT

J3INFELD J SYDNEY 28 MAY 1993

This is an action by John and Peggy Blessington and Terry and Elizabeth Sands for the return to them as rightful owners of an antique knife presently in the custody of the Commissioner of the Australian Federal Police. The circumstances are, to say the least, quite bizarre. A man named James Peter Ainsworth who is now a bankrupt approached Dr and Mrs Sands in

1986 to offer them a share in the knife which Ainsworth

would be worth, at some unstated time, $200,000, and he asked	Ainsworth represented that the knife was very valuable and
the Sands to give him $10,000 for a half share in the knife. The evidence discloses that there was engraving on the blade in a language that appeared to the Sands to be German but in no other respect did anything indicate that it had at any time been owned by or in the possession of Hitler.
About a month after the $10,000 was paid, Ainsworth came to the Sands and asked for a further $5000 for the half share. Although apparently the Sands had already bought their half share for $10,000, they paid the additional $5000 and authorised Ainsworth, for some reason, to retain custody of the knife. In answer to a request by Dr Sands for some "paperwork to show that we have an interest in the knife", Ainsworth replied:

represented was Adolf Hitler's map turning knife. The knife is approximately 14 inches long, three inches wide, has a rounded blade and is silver in appearance. According to the evidence, Ainsworth told the Sands that:

It was a present to him (i.e. Hitler) from one of

his lieutenants.

You do n o t need a n y paperwork o r r e c e i p t , you can

t r u s t me.

What precisely Ainsworth had done to deserve such trust is not possible to discern but according to the evidence he declared

to them: 

W e w i l l k e e p t h e k n i f e for a w h i l e and then we w i l l

sell i t and you w i l l g e t one h a l f s h a r e o f t h e

p r o c e e d s .

The Sands' evidence is that on a number of subsequent occasions they inquired as to the progress being made towards the selling of the knife, to which Ainsworth regularly replied:

The m a r k e t	i s s t i l l	down so it i s not	a	good	t i m e t o
sell.

or words to that effect. In 1989 he told the Sands:

M y w i f e , Doreen, i s o v e r s e a s i n Europe i n q u i r i n g

a b o u t s e l l i n g the knife.

The Blessingtons say that they first met Ainsworth in 1987 or 1988 when he was a financial adviser and insurance agent for the Prudential Insurance Company and they had approached him at his home in Yarralumla in the ACT to obtain insurance advice. The evidence establishes that at some time in 1988 Ainsworth showed them the knife and said words to this extraordinary effect:

I	d o u b t	w h e t h e r	this	would	be	a n	a p p r o p r i a t e
commodi ty	for	you	t o invest	i n a t	th is	t i m e .	T h e

Jews still seem t o be u p s e t a b o u t the N a z i s , I d o n ' t

think a t th is s t a g e t h a t there w i l l be a r e a d y

m a r k e t for the s a l e o f s u c h i t e m s .

If "the Jews' upset about the Nazis" is the criterion of a successful sale, it may be some time before a successful

by the Blessingtons because this statement was apparently	transaction can be concluded. This must have been recognised
enough to dissuade them from an immediate investment. Nevertheless the evidence reveals that on a number of subsequent visits to Ainsworth's home, they were shown the knife. On one such visit in about 1989, they had a further discussion with Ainsworth about purchasing it or an interest in it. M r Blessington is said to have told Ainsworth, "I
would like to take the knife away if I purchase it". Ainsworth is said to have replied:

You can take it home if you want to, but I sold some diamonds to people on one occasion and they took them home. They got so scared about having the diamonds in their house that they brought them back to me. My place is wired with burglar alarms everywhere and wired direct to the police station and it is really safer than a bank as all the alarms would go off if anybody broke in.

The picture is conjured up of Ainsworth sitting in his home in splendid isolation being unable to move lest he set off the alarms that would have his place invaded by countless armed police. Fantastic as such colourful imagery is, the Blessingtons apparently accepted it.

The evidence discloses that at sometime in 1990, said to be

prior to July, Ainsworth contacted Blessington to say: "I

think now would be a suitable time for you to invest in the map turner". The evidence is that Blessington immediately agreed to buy or buy an interest in the knife. There was no

evidence as to how a mere two years was enough to pacify "the	Jewsw and assuage their "upset". To negotiate and conclude a
transaction, Ainsworth arranged, on one edition of the evidence, to lunch with the Blessingtons in Narooma on the New South Wales south coast, quite a distance from Yarralumla. Yet on this first version of the transaction, no details were given qf what was bought and on what terms. There was no valuation, no verification that Hitler had ever seen the
knife, and no indication that anyone would be interested in purchasing such a relic of infamy even if he had.
The circumstances of the lunch are themselves somewhat odd. Despite the fact that the lunch, and the long journey from Yarralumla to Narooma, were apparently for the purposes of this transaction alone, it appears from the evidence that the question of the knife only came up in the context of Ainsworth bringing the lunch to a sudden end by saying, "We have to hurry, we have to be in Merimbula shortly". Apparently under the pressure of Ainsworth's urgent need to depart, Blessington asked him, "Who do we write the cheque out to?", to which the reply was given, "You just sign it and I will fill it in". Blessington signed the cheque but did not fill it out, apparently not even with the amount of money for which the cheque was to be drawn. In his evidence in these proceedings, Blessington identifies an $80,000 cheque as his but says that the only writing on it that is his is the signature. He even asked Ainsworth, "What should I put on the cheque butt?", to
which Ainsworth replied, "Just put 'Timber'. You have plenty of that in the shed". To Blessington's inquiry, "Could you
give me a receipt?", Ainsworth's answer was, "Don't you trust me? " The nearest I have heard to that response is the infamous statement, "I am a journalist, trust me". Blessington did write 'Timber' on the cheque butt.
In 1991 the Blessingtons discovered that a number of the insurance policies which they had taken out through Ainsworth were found to be worthless; the Prudential Insurance Company refunded the premiums paid and the Blessingtons were told that Ainsworth had been charged with criminal offences. Although no charges were apparently brought against him in relation to the knife, it came into the possession of the police where it has remained ever since. Ainsworth is now, according to the evidence, an undischarged bankrupt, and I understand that the criminal charges are pending.
The Blessingtons commenced proceedings in this Court for an extensive array of relief but the substance of what they want now is the handing over by the police of the knife. The Sands have in very recent days asked to be joined as applicants and I have so ordered. The Commissioner of the Australian Federal Police has appeared in these proceedings as a respondent to indicate that he does not wish to make any submissions and that he will abide the Court's order. He wishes to be heard only as to costs. Ainsworth, upon whom the application was served, has never appeared.
A further affidavit by Blessington, presented to the Court today though dated 28 April, states that his decisive
conversation with Ainsworth about the purchase of the knife was in or around April 1990 at Ainsworthls home at Yarralumla, not at lunch at Narooma. How these two accounts stand together I am not sure at all, nor is the discrepancy explained. In the conversation in April 1990 at Ainsworth's
home, Blessington gives the second version of the transaction
It is clear that the knife is not owned by or entitled to be retained by the Police Commissioner who obviously does not particularly want to keep it. It seems that the Blessingtons and the Sands did buy interests in the knife. Ainsworth's failure to participate in these proceedings or to allege any interest in the knife at all has been supplemented in evidence before me of the documentation filed in his bankruptcy in which he showed a deficit of liabilities over assets of $1.3 million. In that material he did not claim an interest in the knife as one of his assets, even though he undoubtedly knew that the police had taken possession of it from him. Perhaps this silence speaks more loudly about its value and heritage than the preposterous claims made earlier.

l

In those circumstances it seems appropriate that I should make a declaration that the applicants are, and are entitled to be treated as, the owners of the knife. I order the Commissioner of the Australian Federal Police to hand over the knife presently in his custody to the Blessingtons' solicitor, Mr

behalf of the Blessingtons and the Sands, as soon as	Barry Ennis of Ennis, Smith and Bradbury of Bateman's Bay, on
convenient.
The applicants are not seeking costs, so there will no order as to the costs of the proceedings except that the costs and
expenses o E the Commis S ioner of they'XmWralrf an'"F&eraf1-1--Pwli~: - ,.,!
applicants.