Hannaford v Stewart
[2011] NSWSC 448
•19 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: HANNAFORD v STEWART & ANOR [2011] NSWSC 448 Hearing dates: 7, 8, 9, 10, 11, 15, 17, 18 and 24 February 2011 Decision date: 19 May 2011 Jurisdiction: Common Law Before: Hall J Decision: That the defendants are liable to deliver up to the plaintiff, the property of the plaintiff, namely, the series of 10 portrait paintings and their frames (being the portraits listed in paragraph 7 of the Agreed Statement of Facts - Exhibit A)
Catchwords: TORTS - DETINUE - plaintiff as a professional artist agreed for no remuneration (other than expenses) to paint 10 portraits of indigenous women for the promotion and assistance of a project - permission given by plaintiff to defendants to use images of the paintings in a forthcoming publication Black Chicks Talking - defence pleaded a binding agreement whereby the second defendant, a production company, would hold the property in or the ownership of the paintings - onus of proof on elements of the cause of action in detinue discharged
CONTRACT - whether defendants discharged the evidentiary burden on them to prove a binding agreement as pleaded - defendants failed to discharge that onus - relief as sought in paragraph 1 of the Further Amended Statement of Claim to be granted - first defendant liable both as director of the second defendant and as the person who was responsible for obtaining and holding possession of the paintings - proposed order that defendants deliver up possession of the paintings to the plaintiff as the rightful owner of them - direction that parties prepare short minutes of order to give effect to the judgment.Cases Cited: Bellinger v Autoland Pty Limited [1962] VR 514
Evans & Sons v Spritebrand Limited [1985] 1 WLR 317
Performing Right Society v Ciryl Theatrical Syndicate [1924] 1 KB 1 at 14
Private Parking Services (Vic) Pty Limited v Huggard (1996) Aust Torts R 81-397Texts Cited: The Laws of Australia: Torts Category: Principal judgment Parties: Robert HANNAFORD v Bain STEWART & ANOR Representation: Counsel:
P: G M Gregg
1/2D: R T Beech-Jones SC/A L McAvoy
Solicitors:
P: Gilchrist Connell
1/2D: Ridge & Associates Pty Limited
File Number(s): 09/297992
Judgment
HALL J:
Introduction
The plaintiff, Mr Robert Hannaford, is a professional artist. In late 1999, the first defendant, Mr Bain Stewart, inquired if he would be prepared to paint the portraits of 10 indigenous women for a project that became known as Black Chicks Talking . Each of the women was said to have been successful in their respective fields of endeavour.
These proceedings involve a question as to the ownership of the paintings.
In circumstances detailed in this judgment, the paintings completed by Mr Hannaford were delivered by him into the possession of Mr Stewart. Mr Stewart is the executive director of a media and production company, Bungabura Productions Pty Limited ( "Bungabura" ). The company is the second defendant to the proceedings.
Bungabura was set up in 1995. It was the primary vehicle through which Mr Stewart and Ms Leah Purcell (the de-facto partner of Mr Stewart and a director of Bungabura) undertook the promotion and the conduct of certain productions. Mr Stewart said that any profit derived from ventures conducted by Bungabura had been distributed, over the years, to Ms Purcell and himself.
The 10 paintings produced by Mr Hannaford remained in the possession and control of Mr Stewart until an order was made by this Court on 23 March 2010. On that date, her Honour, Justice McCallum, made a number of orders, whereby the paintings were to be placed in the safe and secure custody and control of the specified art gallery and its manager until further order or agreement between the parties.
The orders sought in the proceedings
The plaintiff claims, in the alternative, primary alternative relief essentially in the following terms:-
(1) An order that the defendants deliver up to the plaintiff the 10 portrait paintings and their frames as particularised in paragraph 6 of the Further Amended Statement of Claim.
(2) Damages for detinue or conversion.
The issues in the proceedings
The issues between the parties as pleaded and pursued at the hearing may be summarised as follows.
Mr Hannaford's case is that he was approached in late 1999 by Mr Stewart who sought his assistance and support for a project. Mr Hannaford had not previously met Mr Stewart. The project as outlined to Mr Hannaford involved the interview of a number of well-known or "famous" indigenous Australian women for the purposes of a book to be entitled Black Chicks Talking ( "the project" ).
It is part of Mr Hannaford's case that Mr Stewart indicated to him that the proceeds from the project would be applied for the charitable or benevolent purpose of raising funds for a mentoring fund for the benefit of indigenous Australian women.
Mr Stewart's proposal, according to Mr Hannaford, was for him to undertake the painting of individual portraits of each of the women to be interviewed and to allow the inclusion of images or copies of the paintings in a proposed book to be entitled Black Chicks Talking and to permit the use of the paintings and the images of them for promotional purposes.
Mr Hannaford's case is that he agreed with Mr Stewart to undertake the painting of the portraits without the payment to him of any money and to permit the portraits to be exhibited and used in the book.
The "agreement" , which was said to have arisen out of discussions about the project, was an oral agreement.
At the forefront of Mr Hannaford's case is the contention that he acted on the basis that ownership of the paintings would, as the creator of them, remain in him. Apart from some expenses towards the cost of painting materials and ancillary expenses, Mr Hannaford received no payment for the paintings.
The defendants have refused to return the paintings to Mr Hannaford. In the Defence filed on behalf of Mr Stewart (and that of his company, Bungabura) it is pleaded, inter alia, that Mr Hannaford was engaged by Bungabura to paint the portraits on the basis that, at the conclusion of the project, it would be entitled to use the images of them in relation to the project and to have the ownership in the paintings.
In the Defence, it was pleaded that it was a term of the agreement that (Defence, paragraph 9(d)):-
"(d) The Plaintiff would receive payment for his painting materials and expenses for painting the portraits and kudos and accreditation from being associated with the Project."
The defendants contended that it was not until a date in 2007 that Mr Hannaford first demanded or requested the return of the paintings. Mr Hannaford's evidence, on the other hand, was that he requested Mr Stewart to return the paintings in 2005, 2006, 2007 and 2008. The defendants have not returned the paintings, maintaining that Bungabura "is the rightful owner" : Defence, paragraph 14(iii).
The defence of both Mr Stewart and Bungabura has put in issue a number of specific allegations raised in the Further Amended Statement of Claim. The relevant factual disputes on these matters will, as necessary, be the subject of specific consideration below.
The pleadings
(1) The Further Amended Statement of Claim
The proceedings were commenced in this Court by Statement of Claim filed on 10 December 2009. An Amended Statement of Claim was filed on 12 January 2011 and subsequently leave was granted to the plaintiff to file the Further Amended Statement of Claim which was filed on 17 February 2011.
Mr Hannaford's case, both in the initial Statement of Claim and in the Further Amended Statement of Claim, pleaded a cause of action based upon the fact that, as the artist who painted the 10 paintings, he was and has remained the owner of them until the present time. It is common ground that Mr Hannaford was not commissioned to paint any of the portraits for an agreed amount of money (a commission). Mr Hannaford's case is that, in agreeing to paint the portraits for the project, he was motivated by the fact that Mr Stewart had told him that the proceeds of the project would go to support a mentoring scheme for young Aboriginal women.
I turn to the claim as pleaded and particularised on behalf of Mr Hannaford. In paragraphs 4 and 5 of the Further Amended Statement of Claim, Mr Hannaford pleaded the factual matters involving the approach made by Mr Stewart to him seeking his assistance and his agreement to support the project in the circumstances as outlined to him by Mr Stewart.
In paragraphs 10.3 and 10.4 of the Further Amended Statement of Claim, Mr Hannaford claimed that he:-
"10.3. Is the sole owner of the paintings and frames;
10.4 Is entitled to immediate possession of the paintings and frames."
Paragraph 11 of the Further Amended Statement of Claim recites the facts relied upon as to the requests that were made by Mr Hannaford to Mr Stewart for the return of the paintings and the refusal by the defendants to do so and the fact that the defendants have since retained possession and/or control of the paintings and frames.
Having recited the relevant factual matters in paragraph 1 to 12 of the Further Amended Statement of Claim, Mr Hannaford in paragraphs 13 and 17 of the Further Amended Statement of Claim then seeks relief against each of the defendants in the following terms:-
"1. an order requiring the defendant to deliver up and return to the plaintiff the 10 paintings and frames identified in paragraph 6 hereof;
2. damages for detinue or conversation;
3. costs."
(2) Particulars of the plaintiff's claim
By an email dated 24 December 2009, Mr Stewart requested further and better particulars of the Statement of Claim.
On 22 March 2010, Mr Hannaford's solicitors, Gilchrist Connell, wrote to Mr Stewart. The letter referred to the fact that Mr Stewart had himself requested further particulars in relation to paragraph 5 of the Statement of Claim. It was explained that that paragraph referred to the basis upon which Mr Hannaford agreed to paint the 10 portraits. The letter then sets out particulars of the factual matters relied upon.
Under the sub-title "Mr Hannaford's claim" , the letter of particulars recorded:-
"Mr Hannaford's claim does not depend upon proof of the agreement pleaded in paragraph 5. It is unnecessary for Mr Hannaford to prove any agreement.
It is undisputed that Mr Hannaford painted the portraits. He is the author and thus entitled to ownership unless your client proves an agreement to the contrary.
The effect of the conversations between you and Mr Hannaford in late 1999 was an agreement by Mr Hannaford to allow you to use the paintings on loan for the purposes of the Project.
In effect, Mr Hannaford agreed to allow you a non-exclusive licence to use his paintings for the purposes of the Project for no fee and on the understanding that the paintings would be returned after a reasonable period upon Mr Hannaford's request."
The letter noted that the purpose of the particulars was to provide information that enabled the opposing party (at that time, Mr Stewart was the only defendant to the proceedings) to know the case that that party was required to meet. It was emphasised that the basis for Mr Hannaford's claim was set out in the pleadings and was elaborated upon in the letter of particulars of 22 March 2010.
(3) The Defence
Mr Stewart relied upon the Defence filed on 11 January 2010 and subsequently a further Defence filed on 25 January 2011.
(4) The Reply
Application was made for leave to file a Reply on behalf of Mr Hannaford on 15 February 2011 in the course of final submissions (t.355). The Reply responded to the Defences and also sought to raise an alternative defence, namely, that if there was an agreement as alleged in the Defence, then such agreement was unenforceable on a number of specified bases.
Mr Beech-Jones SC maintained strong opposition to the filing of the Reply, particularly at the stage of closing submissions (t.359). Mr Gregg, in his submissions, stated that, whilst the plaintiff's primary position was that there was no agreement as the defendants contended, in the event that the Court were to find otherwise, the plaintiff would then seek to rely upon an alleged misrepresentation by Mr Stewart and plead that any such agreement found to have existed was unenforceable on the grounds of vagueness and uncertainty as to its terms. Additionally, the plaintiff would also, in those circumstances, wish to rely upon an alleged repudiation of the agreement by the defendants and a rescission consequent thereon.
In paragraph 4.1 of the Reply, the misrepresentation was said to relate to the purpose of the project, namely, that the proceeds of it would be used to fund a mentoring scheme for Aboriginal women or young Aboriginal women or young indigenous people. The Reply also sought to raise a contention of an absence of valuable consideration from the defendants (paragraph 4.2) and an implied repudiation, in particular, by reason of the defendants' alleged failure to pay money or reimburse the plaintiff, as had been promised (paragraph 4.4). The issue of repudiation was said to arise in respect of the request made by the plaintiffs for the portraits to be returned by the first defendant.
In support of his opposition, Mr Beech-Jones made specific submissions on the issues of misrepresentation and rescission sought to be raised in the Reply. Although he stated that he was not in a position to identify specific aspects of actual prejudice if leave was granted to file the Reply so late in the proceedings, he submitted that there was real difficulty in retrospectively determining whether he would have conducted the case differently and pursued particular lines of examination with witnesses relevant to issues such as misrepresentation and rescission (t.419-420).
In all the circumstances and having regard to the lateness of the application to file the Reply and, in particular, having regard to the matters raised by Mr Beech-Jones, I am of the opinion that leave should not be granted for the filing of the Reply. I proceed on that basis.
The evidence
Affidavit and oral evidence was given by and on behalf of the parties and, in the plaintiff's case, a number of other witnesses. In this respect, the affidavit evidence comprised the following:-
(1) Plaintiff's affidavits
(a) Affidavit of Robert Hannaford sworn 14 May 2010.
(b) Supplementary affidavit of Robert Hannaford sworn 10 January 2011.
(c) Affidavit of Robert Hannaford sworn 9 February 2011.
(d) Affidavit of Nikki Hannaford affirmed on an unspecified date in May 2010 (filed on 18 February 2011).
(e) Affidavit of Scott Rankin sworn 18 May 2010.
(f) Affidavit of John Neylon sworn 14 May 2010.
(g) Affidavit of Alison Mitchell sworn 13 May 2010.
(2) Defendants' affidavits
(a) Affidavit of Bain Stewart affirmed 5 February 2010.
(b) Affidavit of Bain Stewart affirmed 15 October 2010.
(c) Affidavit of Bain Stewart affirmed 3 February 2011.
(d) Affidavit of Bain Stewart affirmed 10 February 2011.
A number of documents were tendered and marked as exhibits in the proceedings. In addition, documents were annexed or exhibited to certain of the affidavits. I will refer to them as necessary in the course of the analysis of the evidence.
Two of the 10 portraits are produced at the hearing
The plausibility of the defendants' case that Mr Hannaford agreed without question to give ownership in the paintings to Bungabura is to be assessed, at least in part, against the background of the magnitude of the task Mr Hannaford agreed to perform and as well the quality and the value of the work he produced.
I have referred at [5] to the orders made by McCallum J on 23 March 2010 which had the effect of impounding the paintings in safe custody pending the disposition of the proceedings.
On the first day of hearing, Mr G M Gregg of counsel, who appeared for Mr Hannaford, made application for a variation of the orders made by McCallum J so as to enable two of the 10 paintings to be released and brought to Court so that I would have the benefit of seeing the nature and quality of some of the original work the subject of the proceedings.
Mr R T Beech-Jones SC, who appeared with Mr A L McAvoy of counsel on behalf of the defendants, opposed the application on the ground that it had not been established that there was no relevance to the pleaded issues in having the original portraits brought into Court, there being no denial that "they are fine paintings" and that photographic pictures of the portraits would be in evidence. The application, it was submitted, involved an apparent appeal to me to ascertain something about the paintings by viewing the original paintings, in effect, "as a quasi-art critic" . The application for variation of the orders, however, was granted. The original portraits of Kathryn Hay and Rachel Perkins were duly brought to Court. The photographic images of the paintings could not and do not adequately convey the undoubted quality, size and evident skill of the artist. Indeed, Mr Stewart, when asked in cross-examination about the portrait of Kathryn Hay, said on first seeing it "I thought it was beautiful" .
There is no dispute that the original portraits both in size and scale (four feet hight and three feet wide) and quality even to the untrained eye are impressive indeed. So much has been properly conceded and it is accepted for the purpose of the proceedings that the paintings have significant value.
The facts in issue
There are a number of events and other matters about which there was no dispute. It is necessary to refer to the matters common to the cases of the parties when dealing with those events and matters about which there is significant dispute.
The critical events occurred many years ago. The reliability of witnesses and the accuracy of recollections of events, in particular, as to oral discussions, of both Mr Hannaford and Mr Stewart is central to the resolution of issues of fact. This is especially so in a case where the parties did not enter into any formal agreement nor make any form of written record or memorandum of their discussions.
It has accordingly been necessary to closely consider the evidence as to relevant events, in particular, the discussions between Mr Hannaford and Mr Stewart. As there was no other person present at the discussions held in 1999, much depends upon an assessment of the evidence of each with reference being made to any contemporaneous records or other objective facts that bear upon the matters in issue. Given the lapse in time involved and the limited objective evidence, it was also necessary for me to closely observe both Mr Hannaford and Mr Stewart as they gave their evidence.
Mr Hannaford's professional background
Mr Hannaford's career as a professional artist is the subject of evidence given both by him in his first affidavit and in other evidence to which I shall refer. The evidence as to Mr Hannaford's background and reputation is relevant for at least two reasons:-
(1) Firstly, it is probative material in assessing Mr Hannaford's motivation or reason in agreeing to paint the portraits at Mr Stewart's request.
(3) Secondly, it is relevant in assessing Mr Stewart's statement to Mr Hannaford that he would receive the benefit, publicity and "kudos" from becoming involved in the project.
(1) Professional standing and reputation
Mr Hannaford commenced painting portraits in the late 1960s and has been a full-time artist since 1970. In the course of his career, he has had a number of achievements both in terms of awards or prizes and in obtaining prestigious commissions.
In 1990, he was awarded the Doug Moran Portrait Prize and, since 1991, has each year entered the Archibald Prize Competition, having been a finalist in every year that he has entered. He also won the People's Choice Award in respect of his entries in the years 1991, 1996 and 1998. He was also the inaugural winner of the Fleurieu Peninsula Landscape Art Prize.
The commissions awarded to him have included:-
(1) A bronze sculpture of Sir Donald Bradman positioned in the parklands outside Adelaide Oval.
(2) A commission by the Commonwealth Government (2001) to paint the Centenary of Federation. The painting presently hangs in Parliament House, Canberra alongside the Tom Roberts Federation 1901 painting.
(3) He has painted the portraits of well-known Australians over the past 40 years. These include the late Dame Joan Sutherland, Dame Roma Mitchell, Sir Gerard Brennan, Sir William Deane, Malcolm Fraser, Bob Hawke, Paul Keating (former prime ministers), Sir Donald Bradman, Hugh Stretton, Robert Dessaix, Max Harris, Senator Bob Brown, Tim Flannery, Jack Mundey, Professor Rolf Prince and Dr Paul Davies.
Mr Hannaford's work, in addition to portrait painting, has included the painting of landscapes, still life, nudes and sculptures. A number of his artworks are depicted and described in the book entitled "Robert Hannaford: Natural Eye" by John Neylon, a copy of which was tendered and marked as Exhibit C in the present proceedings.
(2) Mr Hannaford's participation and interest in social justice issues and indigenous culture
The evidence established Mr Hannaford's long-standing interest in social justice issues and Aboriginal culture, heritage and history. The evidence concerning his interest in the latter respect is relevant to his involvement in the project, insofar as it involved portrait painting of 10 well-known Aboriginal women. That was one aspect that gained Mr Hannaford's interest in the proposed project as outlined to him by Mr Stewart in late 1999.
The evidence included the plaintiff's involvement in a research project in 1993 concerning the history of the Ngadjuri Tribe from the Riverton area, South Australia in which he has lived for many years. The research led to the writing of a book entitled "Ngadjuri" by Fran Knight and Del Pring.
Prior to the initial approach in 1999 by Mr Stewart, Mr Hannaford had painted a number of well-known Aboriginal people. His evidence is that he had painted the portraits of the famous "black tracker" Jimmy Jones, Lowitja O'Donoghue, the inaugural chairperson of the Aboriginal & Torres Strait Islander Commission and the artists Jarinyanu David Downs and Linda Napaltjarrai.
Mr Hannaford's evidence was to the effect that he had spent time with Aboriginal people in communities in the far west of South Australia. He has illustrated books made for Aboriginal school children and has spent time working in Aboriginal communities teaching children to read.
In paragraph 24 of his affidavit sworn 14 May 2010, Mr Hannaford stated:-
"24. My interest in Aboriginal culture and issues has been very strong all of my life and this is one of the reasons that I agreed to be involved in the 'Black Chicks Talking' project."
There is, additionally, evidence of Mr Hannaford's participation in, what has been referred to as, "social justice projects" . There was also evidence that Mr Hannaford has undertaken work for a number of causes or projects without charging commissions. His evidence was that he had donated his time and allowed paintings produced by him to be used on loan in support of particular projects. One such project was the "Big hART Project" . It was described by Mr Hannaford as a project for under privileged children on the west coast of Tasmania. His involvement came from an approach by Mr Scott Rankin and, at his request, in 1994-1995 he travelled with Mr Rankin to Tasmania. He there painted 10 to 15 portraits of children from under privileged communities.
In that project, the portraits produced by Mr Hannaford were used as part of an exhibition to raise money for the relevant community. Mr Hannaford also undertook some painting "live on-stage as part of a show" . The exhibition was later brought to Adelaide as part of the Adelaide Festival of Arts.
Mr Hannaford's evidence was that he allowed his paintings to be used on loan for the purposes of the Big hART Project. They were later returned to him.
Mr Hannaford's expenses were paid by Big HART, but he did not charge a fee for his participation or services and nor did he part with ownership of the paintings, which were duly returned to him.
Mr Hannaford also participated in the "Sticky Bricks" project. The project was established for the support of underprivileged children living in high-rise apartments in the Redfern area of Sydney. Many of the residents were Aboriginal people. The project was a theatre production for which Mr Hannaford painted six portraits of local residents in connection with the project. The portraits were used in the production as part of an exhibition arranged by Mr Rankin. They were returned to Mr Hannaford at the end of the project.
The above projects were but some of the charitable causes for which he has exercised his artistic skill.
(3) Past practices as an artist
In relation to Mr Hannaford's past practices as a professional artist, his evidence was that he made a living by producing and selling artwork. He estimated that he had painted between about 400 to 500 portraits in his lifetime. In his career, he had only given away four or five of those works. On average he would paint six to 10 portraits a year, although in the 12 month period approximately that occupied him in painting for the project, he estimated that he undertook 15 to 20 paintings in that period.
On average, a live sitting for the purposes of painting a portrait would take about three hours. Additional time thereafter is taken in the refinement and finalisation of portraits.
Mr Stewart's evidence was that Mr Rankin told him that Mr Hannaford was "an excellent portraits painter" and that he had assisted Mr Rankin in a project involving interviewing disadvantaged youth in Tasmania whilst the subjects each posed for a portrait.
Mr Stewart said in cross-examination that he was aware when he spoke to Mr Rankin and at the time of proposing the project to the plaintiff that Mr Hannaford was well known as an artist. He was also aware that his paintings were valuable and that he thought that Mr Rankin had mentioned "... that he asked a high price for his paintings" (t.230). He knew at the time of the "agreement" that the 10 portraits would have "significant value" (t.283-284).
He was also aware at that time that Mr Hannaford had been involved in a Big hART project with Mr Rankin in Tasmania. Mr Rankin told him that the project was one for (t.230):-
"... just young street kids or young offenders that Big hART had been working with and that Alf [Mr Hannaford] painted those kids, those young people, and that Scott and some of the Big hART workers gathered some stories about those young people, sometimes while they were being painted, sometimes in separate interviews, that sort of thing"
The Black Chicks Talking portraits
(1) The initial discussions
Mr Hannaford's evidence was that, in late 1999, he received a telephone call from Mr Stewart. Mr Stewart told him that he had been speaking to Mr Rankin. Mr Hannaford had not previously met Mr Stewart.
According to Mr Hannaford, it was a fairly brief phone call and, as best as he recalled, Mr Stewart said words to the following effect:-
"I am the Executive Director of Bungabura Productions and I was referred to you by Scott Rankin. I am managing a project initiated by my partner, Leah Purcell. Leah is writing a book that will be called 'Black Chicks Talking'. I am ringing to ascertain your interest in doing a series of 10 portrait paintings to be used in connection with the book.
The book is to bring to public attention the issues faced by Aboriginal women. Leah is interviewing 9 other prominent Aboriginal women for the book. The paintings would be of those 9 women, and one of Leah, making ten in total. The paintings will be reproduced in the book, and will be used in promoting the book.
The proceeds of the book will be used to set up a mentoring and support scheme for Aboriginal women."
I note at this point that Mr Stewart in evidence did not dispute the first paragraph of Mr Hannaford's account set out in the preceding paragraph. However, he denied the last paragraph of Mr Hannaford's version of the conversation.
According to Mr Hannaford, he responded to Mr Stewart's proposal to the following effect:-
"I would be very interested in helping with that project."
Mr Hannaford's evidence was that he asked for further information about it. There was no discussion of remuneration for his contribution in the event that he decided to do the paintings. He said Mr Stewart, in fact, did not offer any payment for his services and he did not request any payment.
Mr Hannaford's evidence was that he was interested in helping out with the project because from what he understood Mr Stewart had said, he understood that the proceeds of the project would be going to support a mentoring scheme for young Aboriginal women. He said that the project was also aligned with his interest in painting indigenous Australians.
Mr Hannaford said that after he agreed to paint the portraits, he travelled to Sydney for the purposes of painting some of them and others were painted in his studio. He set out in his affidavit details of the work undertaken in respect of the portraits in question (paragraphs 61 to 93 of his affidavit sworn 14 May 2010).
Before coming to Sydney, Mr Hannaford painted the first portrait, being that of Kathryn Hay, which he said was painted in Adelaide. The evidence suggests that this painting was undertaken in late 1999, most likely in December 1999. Mr Hannaford then travelled to Sydney in that month and painted a further three portraits at the Bundarra Dance Studio at Walsh Bay in that month.
In 2000, he painted a further three portraits in Sydney and another three portraits in Adelaide. The final portrait was of Deborah Mailman which was painted in mid to late 2000 at Government House in Sydney.
Mr Hannaford stated that, by the end of 2000, he had completed all 10 portraits. His evidence was that each portrait was a valuable work, that the frames also carried a commercial value and that he received no payment for the paintings other than some expenses which I will again refer to below.
The evidence established that Mr Hannaford did his own framing. Four guilt frames were purchased by him from Jarmans in Melbourne for approximately $800 in 1999 and he purchased Jarrah frames made by Gunter May in Adelaide. The latter frames were purchased by Mr Hannaford at an estimated cost of $600. Mr Hannaford's evidence was that he considered them to be a special set of paintings and he wanted to present them in the best way he could and, it was for the reason that he arranged for the framing of them. The total cost of framing the portraits was approximately $6,800. Some reliance was placed upon the cost incurred in framing the portraits as some evidence of the improbability that Mr Hannaford would simply have gifted the framed paintings to Mr Stewart or Bungabura. Mr Hannaford's case was that he did not receive payment for the frames.
The plaintiff's case was that neither Mr Stewart nor Bungabura made any claim or assertion of ownership in respect of the paintings until 30 October 2008 when he responded by letter to his solicitors in Adelaide. It is at this point convenient to set out the terms of Mr Stewart's letter of that date, which was marked as Exhibit E.
"BUNGABURA PRODUCTIONS PTY LTD
30 October, 2008
Franco Camatta
Camatta Lempens Lawyers
...
RE: Return of Works
I refer to your letter dated 10 October 2008 wherein you (on behalf of your client Robert Hannaford) have requested Bungabura Productions Pty Ltd ('Bungabura') to return 10 artworks of Aboriginal women.
The artworks referred to in your letter are works which Bungabura commissioned your client to paint some considerable time ago in 2000 and for which your client was paid valuable consideration. The works are the property of Bungabura and your client has no proprietary claim on the works whatsoever. We have confirmed this circumstance with our own legal representatives.
Accordingly, if any legal proceedings are to be commenced [sic] Bungabura in respect to the works then such proceedings will be vigorously defended. We are also advised that should any proceeding be taken, that the proper jurisdiction for commencement of legal proceedings are the courts in New South Wales given all matters in regard to the works were undertaken in Sydney, New South Wales. In the event you do commence proceedings without further notice we reserve the right to bring this correspondence to the courts [sic] attention in regards to costs and jurisdiction.
We trust this finalises the matter.
Yours sincerely,
Bain Stewart
Managing Director
Bungabura Productions"
Mr Hannaford's evidence as to the circumstances in which he came to meet Mr Stewart was not disputed. In the Statement of Agreed of Facts and Issues (Exhibit A), it is stated:-
"4. In or about late 1999, the first defendant was referred to the plaintiff by a mutual acquaintance, Mr Scott Rankin."
Prior to Mr Stewart telephoning Mr Hannaford in late 1999, there had been no association between the two men. There was evidence, in cross- examination that Mr Hannaford had seen Mr Stewart on only one occasion during the course of the "Sticky Bricks" project in the Redfern area of Sydney. However, there was no evidence of any association or relationship between them preceding December 1999. Mr Hannaford said that he had never met Mr Stewart before late 1999.
The fact that Mr Hannaford had no prior relationship or association with Mr Stewart is a circumstance to be taken into account in assessing the plausibility or likelihood that Mr Hannaford would undertake a substantial project of creating 10 portraits on the basis that, at the conclusion of the project, ownership in the paintings would pass to Mr Stewart or his company for no commission or other remuneration at all.
In this latter respect, it is to be borne in mind that, on Mr Hannaford's evidence, which I accept in this regard, the project, as earlier indicated, involved a very considerable amount of time and work on his part, approximately equivalent to almost the number of paintings he would produce in any 12 month period.
In accordance with the Statement of Agreed Facts and Issues, following discussions between Mr Hannaford and Mr Stewart, the plaintiff set about producing the paintings. Paragraph 7, 8 and 9 of the Statement of Agreed Facts and Issues are in the following terms:-
"7. As a result of these discussions and throughout the remainder of 1999 and into 2000, the plaintiff painted portraits of ten well known Aboriginal women (the Paintings), as follows:-
a. Leah Purcell;
b. Tammy Williams;
c. Rachel Perkins;
d. Deborah Mailman;
e. Lisa Grazer-Gooda;
f. Sharon Finnan;
g. Cilla Malone;
h. Kathryn Hay;
i. Roseanna Angus; and
j. Frances Rings.
8. All the completed portraits were delivered by the plaintiff to, on the plaintiff's case, the first and second defendants, and on the defendants' case, the second defendant, by late 2000.
9. The last of the Paintings was completed by the plaintiff before the end of 2000."
(2) Mr Hannaford's motivation
Mr Stewart said he told Mr Hannaford that the paintings would be used in the book and there was the possibility of a play and a documentary where each such project would leverage off the other. Mr Stewart said that, in effect, he spoke of the advantage of the project to Mr Hannaford:-
"This will offer great profile and publicity for you. There will be great interest in the exhibition and it is likely to be seen by people who wouldn't often see your art" .
According to Mr Stewart, Mr Hannaford responded:-
"This is a good thing for me to be part of this type of fantastic project."
In cross-examination, Mr Hannaford said he could not specifically recall Mr Stewart making these statements as to the suggested advantages of the project to him as painter. He said "Not specifically, no, but he could well have said that as well" (t.196).
The evidence establishes that, by 1999, Mr Hannaford had gained a recognition as "one of Australia's foremost portrait artists" : Robert Hannaford Natural Eye by John Neylon, 2007, Arts SA. In that work, references are made to specific works produced by Mr Hannaford both before and after 1999. Those references were confirmed by his own evidence in these proceedings.
In the abovementioned book, Exhibit C in the proceedings, the following is recorded at p.22):-
"Hannaford's portrait skills had been in steady demand from the early 1990's. Portraits of Australian celebrities - Dame Joan Sutherland (commissioned 1974) and Sir Donald Bradman (commissioned 1972) were exceptions to the many portraits of legal and medical figures, academics, vice-chancellors, school principals and business leaders. In 1990, he won the Doug Moran National Portrait Prize with a painting entitled 'The Bill', 1990. The associated publicity plus the evident appeal of the quintessentially outback character portrayed, launched Hannaford into the national arena ..."
The above, as I have indicated, is well supported by other evidence given in the proceedings. Mr Hannaford's interest in producing portraits of prominent Indigenous Australians is referred to both in Exhibit C, in Mr Rankin's evidence and in Mr Hannaford's own evidence.
Mr Hannaford's evidence was that he was not at all interested in gaining publicity from supporting the project. He said that, at the time, he was too busy with his work (t.196). I accept his evidence in that regard. It is clear from the evidence that, by 1999, Mr Hannaford was a well-known and acclaimed professional artist who had neither a need nor a desire for publicity. There is no suggestion that he had involved himself previously in giving his time and creative skills to support charitable causes for publicity reasons. The evidence which established that he had had a history of acting for what he saw to be worthwhile causes in a selfless manner was not challenged in any respect.
In cross-examination, Mr Hannaford displayed a preparedness in evidence to make concessions. He, for example, was not prepared to deny that he could have said "This is a good thing for me to be part of this fantastic type of project" or that Mr Stewart could have said, "Look, we don't have any money to pay you for the paintings. What we can offer is the accreditation, the publicity and the profile" . He also accepted that Mr Stewart may also have said, "The only fee we can offer you is to be part of the project and just to get your work out there" (t.196).
Mr Hannaford said that Mr Stewart may have said that he could not afford to pay him for doing that paintings. He said in evidence "... I was quite happy to accept that ..." (t.196).
Mr Hannaford, however, stated (affidavit sworn 14 May 2010):-
"183. The suggestion that Stewart was putting some form of commercial proposition to me as distinct from inviting me to support a charitable project is simply untrue. I cannot now recall whether there was any discussion to the effect that I might benefit from the project in terms of 'profile and publicity'. I had a significant profile in the art world at that stage. I was not seeking publicity from the 'Black Chicks Talking' project."
I closely observed Mr Hannaford in the course of his evidence. Having done so and having read the transcript of his evidence, I have concluded that, in the relevant sense, he was an impressive witness.
Whilst it was part of Mr Stewart's case that he offered Mr Hannaford the "benefits" of accreditation, publicity and "kudos" , it was properly recognised in the final written submissions of the defendants that such an "offer" to an established professional artist such as Mr Hannaford would have been effectively devoid of substance. In discussing the question as to whether any valuable consideration had been exchanged to obtain Mr Hannaford's agreement to paint the portraits, it was observed in the submissions:-
"13. In this case, it may be accepted that the plaintiff was not subjectively motivated to paint the paintings and part with ownership by reason of any desire on his part to be paid for his painting materials or to obtain kudos and accreditation for being associated with the project ..." (Defendants' Outline of Submissions)
As earlier noted, Mr Hannaford's account of the initial discussion includes a statement he attributed to Mr Stewart:-
"The proceeds of the book will be used to set up a mentoring and support scheme for Aboriginal women."
Mr Stewart repeatedly denied in evidence having made such a statement.
An obvious question in the proceedings is what rational explanation was there on the evidence as to why Mr Hannaford would agree with Mr Stewart, then effectively a stranger to him, to undertake a substantial project without remuneration, whether in the form of commissions or otherwise? Mr Stewart knew through Mr Rankin that Mr Hannaford had an interest in Aboriginal culture and that he had undertaken artistic projects for what might be characterised as "good" or "charitable" causes without asking or expecting payment of commissions. Mr Hannaford's evidence was:-
"50. I was interested in helping out the 'Black Chicks Talking' project because I understood from what Mr Stewart said that it was to support a mentoring scheme for Aboriginal women. The project was also aligned with my interest in painting indigenous Australians."
The defendants' written submissions did not put Mr Hannaford's motivation in issue:-
"13. ... It seems that his personal or subjective motivation to undertake the paintings was that he considered the project was worthwhile and on his case, because he believed it might lead to funding for a mentoring program ..." (Defendants' Outline of Submissions)
(3) Contemporaneous documentary evidence
As indicated above, there is very little in the nature of contemporaneous documentation. A number of documents were the subject of evidence from Mr Stewart and Mr Hannaford. They related to Mr Hannaford's expenses, a "receipt" and a letter written by Mr Stewart dated 10 December 1999 and a preliminary draft of a letter Mr Hannaford said he sent to Mr Stewart in 2000.
(a) Expenses
Mr Stewart set out in his first affidavit the details concerning expenses that were paid, in particular, those recorded in his cheque book for 14 December 1999, 15 December 1999 and 19 December 1999, copies of which were annexed to his affidavit affirmed on 5 February 2010.
Mr Stewart's evidence was that Bungabura paid certain expenses incurred by Mr Hannaford. These related to art supplies and some travel and living expenses. He said that Bungabura paid for any invoice for expenses that Mr Hannaford provided. He had located three cheque book entries in respect of 14, 15 and 19 December 1999. Copies of the same were annexed to his affidavit affirmed on 5 February 2010 (paragraph 27). Exhibit A contains certain receipts in relation to expenses.
The cheque butt dated 19 December 1999 was in the amount of $1,000 payable to Mr Hannaford. In cross-examination, Mr Hannaford said he had no memory of the cheque but did not deny receiving it. Evidence in the cashing of the cheque in question (number 300007) was tendered (Exhibit 2).
(b) The receipt dated 19 December 1999
On 19 December 1999, a "letter" was produced signed by Mr Stewart and Mr Hannaford dated that day (Exhibit 3). It was in the following terms:-
"19 December 1999
To whom it may concern
Re: Robert Hannaford
This letter is to act as a receipt for the payments given to Robert Hannaford for the Bungabura Productions projects 'Black Chicks Talking'.
On Tuesday 14 December 1999, Robert was given $300 (cash) for meal allowance, and on Sunday 19 December 1999, he was given another $1,000 (cheque no 300007) as a down deposit on his commission for painting portraits for this project.
Regards
| Bain Stewart | Robert Hannaford |
| Bungabura Productions | Artist |
| Black Chicks Talking | Black Chicks Talking |
The document, as earlier indicated, contained the signatures, respectively, of Mr Stewart and Mr Hannaford.
When asked about the document in cross-examination, Mr Hannaford noted that it referred to a "down deposit on his commission for painting portraits ..." , but did not say "part deposit or anything like that" on "paintings" (t.137).
In his affidavit sworn on 4 February 2011, Mr Hannaford stated in paragraph 13:-
"13. I understand then and I understand now that the word 'commission' may be used in different ways:-
(a) firstly, it can have a broad general meaning to retain me to do some work for a project with me retaining ownership of that work; or
(b) secondly, it could mean more specifically 'a commission' where for an agreed fee I would paint a portrait with the intention that upon completion of the work and payment in full to me of the previous agreed fee, ownership of the portrait would transfer to the sitter or the person who commissioned it."
In cross-examination, Mr Hannaford stated that the reference to "down deposit on his commission" in Exhibit 3 was consistent with the first form of commission to which he referred in paragraph 13(a) of his affidavit.
Mr Hannaford agreed that, in his dealings with Mr Rankin in which he had produced paintings, he did not describe any payments that Mr Rankin had made as being either a down deposit or a commission payment (t.138).
(c) The letter of 16 December 1999
It was submitted for the defendants that, as between Mr Hannaford's recollection of events of 1999 and Mr Stewart's recollection, the above letter "is neutral" . I respectfully disagree. I will refer to particular aspects of the letter in the discussion below.
Mr Hannaford explained in his affidavit sworn on 10 January 2011 the circumstances in which he found the letter that was written by Mr Stewart to him dated 16 December 1999 on Bungabura's letterhead. He said that when he was looking through the book "Spirit of Arnhem Land" at his home, he found the letter inside the book, it seems, some time at or before August 2010. The book had been given to him by Mr Stewart. He said that the letter contained a suggestion for the sale by auction of the paintings. He said he did not ever agree to auction the portraits and that no auction or arrangements made for an auction took place.
Mr Stewart accepted, in cross-examination, that the letter was written after Mr Hannaford had commenced painting the portraits as indicated by the reference in the letter to "It has been a great pleasure and a privilege to watch you paint this last week" (t.281). This is consistent with the cheque butt dated 11 December 1999 concerning expenditure on art supplies.
Mr Hannaford said he did not respond to the letter from Mr Stewart. However, he said that, on a later date, he received an offer from Mr Stewart to purchase the paintings for $10,000. Mr Stewart disputed Mr Hannaford's evidence to that effect. Mr Hannaford said he rejected the offer.
In his supplementary affidavit sworn on 10 January 2011, Mr Hannaford stated that it was after having sworn his affidavit of 14 May 2010, that he found the letter from Mr Stewart dated 16 December 1999 in the book "Spirit of Arnhem Land" . A copy of it was exhibited to his affidavit (Exhibit "RH2"). The letter was in the following terms:-
"December 16, 1999
TO: Robert Hannaford
RE: Black Chic's [sic] Talking & Bungabura Productions
In this letter I wanted to achieve the aim of informing you, in writing, of your role and obligations with the project Black Chic's [sic] Talking.
As you know you are painting upwards of 9 Indigenous Women for this book and possibly a documentary project which will as far as your [sic] concerned end up as an exhibition of your work via the book launch and the art auction. Proceeds from this auction will go towards a mentoring fund for young Indigenous people in rural, regional and marginalised Australia.
Bungabura Productions can guarantee a commission of $10,000 (Aust) to paint these 9 women and a percentage of the sale of the portraits at auction. We haven't determined what that percentage might be, but I would figure around 10 - 15%. I will be meeting with our sponsorship consultant on this project on Monday and can tell you a whole lot more in about 1 weeks time. At some stage we will organise an agreement spelling out things like what exactly the portraits will be doing in relation to the book and potential exhibitions, and we are very excited at the prospect of the co-authors portrait of Leah Purcell being entered in the 2000 Archibald Prize. I will touch bases with the prize people and find out guidelines before we enter so we don't breach any through the book and documentary.
We are thrilled you are a part of this project Alf, and it has been a great pleasure and a privilege to watch you paint this last week. I will keep you abreast of all that is happening on this project as things move along and will work closely with you to coordinate the next lot of paintings early in 2000. We have spoken about at least one of the paintings where we might have to go overseas to do it. If so you will know well in advance of that happening and if you are available. Have a Merry Xmas Alf, and enjoyable New Years Eve and a marvelous [sic] 2000 and I will be in touch with you soon.
Yours Sincerely,
Bain Stewart
Executive Producer, Black Chic's [sic] talking
General Manager, Bungabura Productions"
There are a number of matters to be observed about the letter, in particular:-
(1) The date of the letter (16 December 1999) is some evidence as to the approximate time that Mr Stewart initially approached Mr Hannaford about the project.
(2) The reference to "a mentoring fund for young Indigenous people in rural, regional and marginalised Australia" is consistent with Mr Hannaford's evidence that, in the initial project discussions he had with Mr Stewart, the notion of the establishment of a mentoring fund was mentioned.
(3) The reference to a guarantee of payment of $10,000 to "paint these nine women" (described as a commission) together with an unspecified percentage of a sale of the portraits is noteworthy. Insofar as it raised possible elements for a "deal" on the project, it tends to indicate that no final or concluded agreement had been reached as at the date of the letter.
(4) The statement "At some stage we will organise an agreement ..." is further evidence pointing to the fact that no final agreement had been concluded as at 16 December 1999.
(5) There is an implication that, as at the date of the letter, Mr Stewart was addressing Mr Hannaford on the footing that, as the artist of the portraits to be painted, Mr Hannaford's agreement to any sale of the portraits was required.
(6) The letter is significant in that it directly contradicts a number of matters to be found in Mr Stewart's affidavits. He was asked about the matter (t.314):-
"Q. You swore a number of affidavits making definite assertions inconsistent with the terms of that letter, didn't you?
A. Yes."
The letter of 16 December 1999 is relevant to Mr Stewart's evidence in that, in his first affidavit, he made no reference to any discussion about a mentoring scheme or fund. After having seen Mr Hannaford's affidavit to which the letter was exhibited, his evidence was that there had been some discussion about a fund or scheme. I will return to this aspect below.
Mr Stewart responded to Mr Hannaford's affidavit sworn on 10 January 2011 and, in particular, in relation to the letter of 16 December 1999.
Mr Stewart said that he did not recall preparing or sending the letter but accepted that he did so.
He referred to paragraph 30 of his first affidavit in which he had indicated that he did not suggest or discuss with Mr Hannaford that the project would provide funding for an Indigenous women's mentoring programme. He then stated:-
"28. ... Having read the 16 December Letter, I see that it refers to using the proceeds from selling the paintings towards a 'mentoring fund for young Indigenous people in rural, regional and marginalised Australia'. I do not recall discussing a proposal of that kind with Robert Hannaford but agree that it was likely that it was discussed at some point as it mentioned. I cannot recall who might have raised it first."
In paragraph 29 of his affidavit, he referred to paragraph 33 of his first affidavit and stated:-
"... At the time I swore paragraph 33 what is stated there was my best recollection of what happened. Having read the 16 December Letter, I accept that at the time I must have seriously considered a proposal to auction the paintings. I cannot recall whether the proposal was first raised by me or by Mr Hannaford, but the proposal was later discarded."
(d) Mr Hannaford's preliminary letter
Mr Hannaford's evidence that the early discussions of the project between Mr Stewart and himself had been connected with the concept of a mentoring scheme or fund receives some support in the preliminary draft for a letter which he said he wrote and sent to Mr Stewart in response to an offer for the paintings of $10,000 made by Mr Stewart in late 2000. A copy of the "preliminary draft" is Exhibit G (reproduced in paragraph 119 of Mr Hannaford's affidavit sworn on 14 May 2010). The draft in Mr Hannaford's handwriting was produced at the hearing. It consisted of a single page in an exercise book Mr Hannaford used to make notes. The preliminary draft addressed to Mr Stewart was in the following terms:-
"Dear Bain
I was a little worried after reading your letter that $10,000 is to be paid to me and Bungabura is in total control of future monies etc. As you remember, our initial discussions were vague on this point. I do remember you saying that more money would be coming my way depending on what happened to the paintings.
I went into this project because I believed in it. I would not like to take money away from the mentoring. I would (as I have always told you) do it for nothing if it furthered the possibilities for Aboriginal kids - but ..." (emphasis added)
In his affidavit sworn 14 May 2010, Mr Hannaford stated at paragraph 120 that he did not have a copy of the final version of the letter. However, he stated that he recalled that in the final version he rejected Mr Stewart's offer to buy the paintings for $10,000 but agreed that he and Ms Purcell would continue to use the paintings for the purpose of promoting the book and the various other media aspects of the project.
He said in that affidavit that he received Mr Stewart's letter offering the amount of $10,000 for the 10 portraits in late 2000, but that he had been unable to locate the letter. He said that he wrote in response to Mr Stewart's letter soon afterwards. He said the letter was handwritten, that he did not keep a copy of it and that he sent the original to Mr Stewart. He said that the preliminary draft reflected some, but not all, of what was contained in the final version of the letter sent to Mr Stewart.
Mr Beech-Jones submitted that the handwritten preliminary draft was, in fact, referrable to the letter of 16 December 1999, which included reference to the amount of $10,000. It was submitted that, on analysis, the note supported Mr Stewart's case. Reliance was placed on the reference in the letter of 16 December 1999 to a proposal by which the balance of the proceeds of the auction would be divided up between a mentoring fund for Aboriginal youth and Mr Hannaford. It was submitted that Mr Hannaford's note refers to "tak[ing] money away from mentoring" which is what would occur if there was an auction and a division of the proceeds.
Additionally, it was submitted by Mr Beech-Jones that the form of mentoring programme referred to was the same. The letter of 16 December 1999 referred to a mentoring scheme for "Aboriginal youth" and Mr Hannaford's response refers to the "possibilities for Aboriginal kids" .
It was also submitted for the defendants that the timeframe in Mr Hannaford's affidavit suggested that his response was drafted around the time that the concept of an auction was being considered.
Accordingly, it was submitted that all of these matters strongly pointed to Mr Hannaford having written the note in December 1999 while considering the 16 December 1999 letter.
In response, Mr Gregg took issue with the submissions, stating that Mr Hannaford's recollection was that the draft note and the letter of 16 December 1999 were clearly distinct and that he did not reply to the letter of 16 December 1999 nor discuss it with Mr Stewart.
Mr Gregg submitted in oral submissions that the letter Mr Hannaford said he sent rejecting the offer of $10,000 was later in time and that it contained the phrase "Bungabura is in total control of future monies" which is not to be found in the letter of 16 December 1999.
It is difficult on the evidence to be satisfied that there was a letter written by Mr Stewart offering to buy the paintings and that the preliminary draft letter, which was developed into a final letter and sent by Mr Hannaford by way of response to an offer by Mr Stewart, was, as contended for in the plaintiff's case. The lapse of time and the absence of any other evidence on the subject leaves open the possibility that Mr Hannaford's recollection was confused with the letter of 16 December 1999. Accordingly, although I do not make an affirmative finding that a final letter in terms of the preliminary draft was sent to Mr Stewart as a response to a written offer to purchase, I nonetheless consider it is relevant evidence in the respects referred to in the next paragraph.
The preliminary draft does provide some confirmation of the following:-
(1) The fact that the project discussions between Mr Hannaford and Mr Stewart had addressed a charitable concept for the project, namely, a mentoring concept.
(2) Mr Hannaford's interest in the project was related to Mr Stewart's indication that the proceeds from the project were to be applied towards a mentoring fund.
(3) The accuracy and truthfulness of Mr Hannaford's account in his first affidavit as to the reason he agreed to enter into the project. It accordingly confirms Mr Hannaford's evidence that he was not entering into the project on the basis of it being a commercial venture, ie, "I would (as I have always told you) do it for nothing if it furthered the possibilities for Aboriginal kids" . I do not consider any significance attaches to the reference to "Aboriginal kids" rather than to "Aboriginal women" , as was suggested in cross-examination (t.146). Mr Hannaford's evidence was "... I always had that concept in my mind of mentoring because we had spoken of it from the beginning" (t.147).
(4) Mr Stewart's evidence in greater detail
(a) The Black Chicks Talking project
According to Mr Stewart, his partner, Ms Purcell, conceived the idea of interviewing a number of accomplished indigenous Australian women in relation to their background, achievements and outlook on life. He said that Ms Purcell undertook some interviews of the women to be the subject of the portraits. In some instances, the interviews took place whilst they were posing for the portraits.
The series of paintings produced by Mr Hannaford were launched at Dubbo Regional Gallery on 20 January 2001.
In the period 2000 to 2001, Mr Stewart said that Ms Purcell wrote a book based upon her discussions with the women who had been the subject of the paintings. In due course, she signed a publishing agreement with Hodder Headline Australia and the book Black Chicks Talking was published in 2002, reprinted in 2003.
He said that in the period during 2000 and 2001, a documentary film was produced which premiered at the Tribeca Film Festival in New York in May 2002. It had its Australian premiere at the 2002 Sydney Film Festival. He said the book Black Chicks Talking was officially launched with the Australian premiere of the documentary at the film festival.
In 2002, a "CD" of the music for the documentary which had been recorded in April 2002 was released.
A stage play entitled Black Chicks Talking premiered in the Optus Playhouse for the Queensland Performing Arts Centre on 12 December 2002.
He said that, at various points from January 2002 the portraits painted by Mr Hannaford were used as part of the launch and marketing of others parts of the project. The last public exhibition of the paintings that he could recall occurred in December 2002 at the Queensland Performing Arts Centre at which time the play of Black Chicks Talking was being staged. However, it appears that there was at least one further exhibition in 2003.
Mr Stewart said that, in 2003, the portraits were used at various times "as part of a 'pitch' for further spin offs from the 'Black Chicks Talking' project" . He said that Bungabura prepared a proposal entitled "Touring museum exhibition and schools arcade and three year education programme" for Black Chicks Talking . He said that images of the portraits were used in the "pitch" .
In 2003, the paintings were exhibited at the Queensland Performing Arts Centre after which they were sent to Sydney in anticipation of them being exhibited at the offices of the Australia Council for the Arts. That, however, did not eventuate and Mr Stewart arranged for the paintings to be returned to a storage facility at the Queensland Performing Arts Centre. Subsequently, they were retained by him and stored in his own premises in purpose built crates.
(b) Mr Stewart's early contacts with Mr Hannaford
In his affidavit affirmed 5 February 2010, Mr Stewart outlined the background and circumstances leading to his dealings with Mr Hannaford. He said that in 1999 he became aware from speaking to Mr Rankin of the possibility of approaching Mr Hannaford to undertake the portrait project. He said (at paragraph 11):-
"... I recall that Mr Rankin told me that Mr Hannaford was an excellent portraits painter, that he had assisted him in a project which had involved interviewing disadvantaged youth in Tasmania and that it had been interesting to have a process of interviewing while they were posing for a portrait."
Mr Rankin is a writer and creative director. He and another founded Big hART, a not for profit organisation. Mr Rankin said in his affidavit (paragraph 24) that when he first discussed the Black Chicks Talking book with Mr Stewart, the following conversation took place:-
"Bain: The proceeds from the 'Black Chicks Talking' book will go towards setting up a mentoring and support programme for indigenous Australian women. We want to get as much support for this project as possible
Me: Robert Hannaford might be prepared to support the project. He has supported a few of our Big hART projects by letting us use his artwork. He actually volunteered his help because of our involvement in community charity projects. Robert is a very famous artist and is very well respected in the community. His paintings are quite valuable. He has been involved in three of our projects so far.
Bain: A portrait by a famous artist such as Robert would be expensive.
Me: Neither of us would really be able to afford him but he might agree to let you use his paintings for the 'Black Chicks Talking' project at no charge. He would help the project to punch above its weight in terms of profile, audience and media attention.
Bain: I agree I would be really excited to have him involved in the project."
I note that Mr Rankin, in this conversation, is consistent with Mr Hannaford's evidence to the effect that Mr Stewart raised with him the fact that proceeds from the Black Chicks Talking book would go to supporting a mentoring and support programme.
Mr Stewart said that he spoke, firstly, to Mr Hannaford on the phone and some time later he said he travelled to Sydney for other work and had a meeting with Mr Hannaford over dinner at a restaurant. He said he there discussed the idea of painting the women subjects as an interviewing technique and various proposals for the project. In particular, he said (affidavit affirmed 5 February 2010 at paragraph 14):-
"We will use your paintings in the book, but we are also going to be looking at getting a play up and a documentary is happening. The idea is we will be able to leverage each project off another and keep it moving along."
He said that:-
"This will offer great profile and publicity for you. There will be great interest in the exhibition and it is likely to be seen by people who wouldn't often see your art."
He said that Mr Hannaford responded, "This is a good thing for me to be part of this type of fantastic project" .
There is a significant conflict in the evidence between Mr Hannaford and Mr Stewart as to whether there was reference in the early discussions held before the first portrait was painted to proceeds from the book (in which images of the paintings were to be reproduced) would go to a mentoring programme for benevolent or charitable purposes. Mr Hannaford was adamant that it was put to him on that basis. Mr Stewart, on the other hand, maintained that that matter had not been the subject of discussions either with Mr Rankin (t.232-233) or with Mr Hannaford. The conflict on this material fact, accordingly, is one between Mr Stewart, on the one hand, and Mr Hannaford and Mr Rankin, on the other. Mr Rankin's version has been reproduced in paragraph [140] above.
Mr Stewart in his affidavit of 5 February 2010 said he did not say that the proceeds of the book would be used to set up a mentoring and support scheme for Aboriginal women. He repeatedly maintained throughout his evidence, including his evidence in cross-examination, that there was no discussion that the proceeds would be used for such a scheme.
The only contemporaneous document bearing on this issue is in Mr Stewart's letter of 16 December 1999. In it, Mr Stewart referred to the concept of proceeds from an auction of the paintings going towards a "mentoring fund for young Indigenous people ..." . Whilst that was a reference to proceeds from the prospective auction of the paintings and not proceeds from the sale of the book, it nonetheless provides some contemporaneous evidence consistent with Mr Hannaford's evidence that Mr Stewart had referred, in the early discussions, to a mentoring scheme being the matter he said that attracted his interest.
Mr Stewart asserted that, in effect, the Black Chicks Talking book was in the nature of a commercial project or "enterprise for Bungabura" (t.233) in which it was hoped that a profit would be made. He said that Bungabura received a $50,000 advance from the publishers. He said that there were additional royalties of the order of $3,000 to $5,000 in addition to the $50,000 advance. He later gave evidence which adjusted these amounts.
He subsequently said that the profit to Bungabura from the book was $35,000. When asked whether those proceeds went to any type of charitable purpose, Mr Stewart responded, "It went towards the Black Chicks Talking project to keep developing them and working on them. And to other Bungabura projects" (t.235).
Mr Stewart agreed in cross-examination that when he first contacted Mr Hannaford, he spoke to him about the Black Chicks Talking book and not the Black Chicks Talking project (t.237). He also agreed in cross-examination that he said to Mr Hannaford in his initial call to him words to the effect, "I'm ringing to ascertain your interest in doing a series of 10 portrait paintings for reproduction in the book" (t.239).
I will refer below to the letter of 16 December 1999 and the change in Mr Stewart's evidence concerning the mentoring and support scheme.
(5) The meeting in Sydney
There was no documentation confirming Mr Stewart's evidence of a meeting with Mr Hannaford in Sydney in which he says an agreement was made giving Bungabura ownership of the paintings in December 1999. The letter of 16 December 1999 referred to the fact that "... it has been a great pleasure and a privilege to watch you paint this last week ..." , but there is no reference in that letter to any discussions having taken place at a meeting between Mr Hannaford and Mr Stewart.
In cross-examination, Mr Stewart was unable to say when the meeting with Mr Hannaford took place following the initial telephone call. He said the dinner that he had with Mr Hannaford occurred within a month or so after the initial discussion (t.243). He suggested that the "time frame" for the dinner meeting was "... middle of the year, July, August" (t.244), this being a reference to 1999. Those reference in time are clearly incorrect as the evidence overwhelmingly indicates that the early discussions took place in December 1999. He said the meeting took place in a motel that Mr Hannaford was staying at while he was in Sydney, but he could not say where the motel was. He said the meeting took place before any portraits had been commenced.
As noted above, Mr Stewart said in the early discussion, "Look, we don't have any money to pay for the paintings. What we can offer is the accreditation, the publicity and the profile" . He said that he also remembered saying to Mr Hannaford, "The only fee we can offer you is to be part of the project and just to get your work out there" , to which Mr Hannaford responded, "Ok" (paragraphs 15 and 16 of the abovementioned affidavit).
In addition to saying that Mr Hannaford's expenses would be covered, Mr Stewart said that he specifically recalled discussing ownership of the paintings and said words to the effect as set out in paragraph [171]. Mr Hannaford strongly denied that evidence.
(6) A change in Mr Stewart's evidence
In evidence in chief and in cross-examination, Mr Stewart said that he would not have referred to a mentoring or support scheme for Aboriginal women in the initial discussion with Mr Hannaford. It was put to him in cross-examination (t.242):-
"Q. Mr Stewart, whether or not it was ever part of it, part of your intentions for Bungabura to pass on any of the profits to a mentoring scheme, I suggest to you that that is the substance of what you said to Mr Hannaford in this conversation?
A. There was never a mentorship scheme part of the Bungabura book."
Notwithstanding the repeated reference in evidence by Mr Stewart that there had been no mention whatsoever of any payments from the project being directed towards a mentoring scheme, Mr Stewart, for the first time, acknowledged that, in light of his letter of 16 December 1999 (which, in circumstances outlined above, came to light after Mr Stewart had made his first affidavit), there may have been reference to a mentoring scheme in his discussions with Mr Hannaford. In cross-examination, he was asked (t.285):-
"Q. And you in addition you say there was no mention of a mentoring scheme in connection with Black Chicks Talking by you in any conversation with Mr Hannaford; correct?
A. That telephone call and at that initial dinner meeting that we had there was [sic] no discussions about the mentoring scheme, but having a look at this letter here now, which I didn't know that I had written or had, there's talk of a mentoring scheme here, so Robert and I may have spoken about that when I spoke about proceeds of an auction would go to him and to a mentoring scheme."
Mr Stewart's evidence was that, at the conclusion of the meeting at the hotel restaurant, Mr Hannaford shook hands and the "deal" was then done. He maintained that the agreement made that day was not later varied by any further discussion between him and Mr Hannaford (t.286).
I will return to Mr Hannaford's and Mr Stewart's evidence on the conflict between them as to whether the proposed project was put to Mr Hannaford upon the basis that a mentoring scheme was to be established.
(7) A "good deal"
If Mr Stewart is to be accepted, it is clear that the "deal" he made with an accomplished artist was an extremely favourable one for the defendants. In cross-examination, Mr Stewart acknowledged it as such:-
"Q. On your case, Mr Stewart, you had reached not only an agreement with Mr Hannaford by the time of this dinner meeting before, you say, he had started to paint any of the meetings but you had made an incredible bargain, hadn't you?
A. I hadn't made an agreement before we had the meeting. We made the agreement at the meeting.
Q. I didn't say before you had the meeting.
A. I thought you did.
Q. I will put it again to you. I don't want you confused about it. On your case the oral agreement was reached at the meeting before Mr Hannaford painted the first portrait?
A. Sorry, say that again?
Q. On your case Mr Hannaford and you orally agreed the terms on which he would paint the portraits before he painted Kathryn Hay that's just to your right in court sitting there?
A. Yes.
Q. And I suggest to you that on your case you had struck an incredible bargain with Mr Hannaford?
A. I realise it was a good deal that I had struck with Alf. That's my job as an indigenous independent producer, I strike deals all the time with all sorts of people, and I did understand that it was a wonderful thing that had happened at that meeting and it was a good deal.
Q. And following that agreement, the wonderful deal, as you say, Mr Hannaford appeared to be carrying out his end of the bargain; correct?
A. Yes.
...
Q. Were you at this stage familiar with Mr Hannaford's work? Had you done any research and looked at any of the images of his past work?
A. I had looked at some of his images. I hadn't done a huge amount of research, but I had seen some of his works of Prime Ministers and other prominent Australians, some of his work."
The reference to "Alf" in Mr Stewart's answer is a name Mr Stewart said he came to use in relation to Mr Hannaford.
I will deal later in this judgment with the absence of a rational explanation for Mr Hannaford agreeing to give the paintings to Bungabura.
CONSIDERATION
As earlier indicated, the pleaded cause of action arises from the alleged wrongful detention of the paintings in which Mr Hannaford claims that he has ownership.
The relief claimed in the Further Amended Statement of Claim is an order that the defendants deliver up, what is claimed to be, the plaintiff's property, namely the 10 portraits and their frames. In addition, a claim is made for damage for detinue or conversion.
The essence of the tort of "detinue" is the wrongful detention of a chattel to which another has the right of immediate possession. Wrongful detention is established by a demand for the chattel by the owner and a refusal of that demand by the person who has possession of it. The cause of action in detinue, accordingly, arises where a person has actual possession of the chattel and unreasonably refuses to restore it to the owner on the latter's demand: The Laws of Australia : Torts at 33.8.920.
It has been held that detinue is now clearly recognised as a tort rather than a mere proprietary action: Bellinger v Autoland Pty Limited [1962] VR 514 at 519, 520 per Herring CJ.
In relation to the claim in the present proceedings for an order that the defendants deliver up the 10 portrait paintings and their frames, it follows from the above discussions that there are three characteristics of detinue:-
(1) The plaintiff must make a demand for the chattel whose possession the plaintiff is entitled to at the time of making the demand
(2) The defendant must have refused that demand.
(3) Where the chattel is in the defendant's possession, the refusal to return the chattel must be unreasonable; where it is not in the defendant's possession, the defendant must have wrongfully parted with possession: The Laws of Australia at 33.8.920.
(1) Acquiring ownership in the portraits without payment or other consideration
The essential elements of the case for the defendants may be shortly stated as follows:-
(1) Mr Hannaford agreed to paint the 10 portraits without any financial benefit to him for his time and effort in creating them.
(2) He agreed to give up any rights he might have in the images of the portraits so that they could be used in the Black Chicks Talking book.
(3) Mr Hannaford agreed that the portraits would be available for use throughout the Black Chicks Talking project, without any fee or other remuneration.
(4) That on completion of the project, Bungabura would acquire ownership in all 10 paintings without cost to Bungabura. In other words, Mr Hannaford would relinquish property in the portraits in favour of Bungabura without any obligation on Mr Stewart or Bungabura to pay commission(s) or any other form of remuneration to Mr Hannaford.
As to the first of the above elements, I have referred above to Mr Hannaford's evidence, which I accept, that he agreed to produce the paintings without charge on the understanding and on the basis that the proceeds from the project, including in particular the book, would go to support a mentoring and support scheme for young Aboriginal women.
The second, third and fourth elements of the defendants' case are devoid of a rational explanation as to why Mr Hannaford, an accomplished artist, would agree to give the paintings to strangers (Mr Stewart and his company) for no return or benefit. Additionally, at the time of the early discussions, there existed only a prospect rather than the actuality that the project would be successful and that Mr Hannaford was content to act on the bases set out in paragraph [168] on the basis that he would be paid for his expenses in producing the paintings.
As earlier noted, Mr Stewart's evidence was that he specifically brought up the issue of ownership of the paintings with Mr Hannaford. I will reproduce again for convenience here the relevant part of his account:-
"Bungabura wants to keep the paintings at the end of the project. We are the guardians of the girls' stories and they agreed to do this for Bungabura, Leah and I. As an exhibition and part of the overall project they needed to be controlled and managed by the indigenous stakeholders in the project."
According to Mr Stewart's account, no clarification or questions were raised by Mr Hannaford to this statement. According to Mr Stewart, Mr Hannaford simply replied to the effect "okay" .
Mr Hannaford, both in his affidavit evidence and in cross-examination, strongly disputed Mr Stewart's evidence set out in paragraph [171] above stating (t.196):-
"He certainly did not say that to me. I would have remembered that. That would have stood out in my mind like a beacon."
It was then put to Mr Hannaford (t.196-197):-
"Q. And I suggest that when you later signed that receipt on 19 December you did so because you had understood that you had already discussed with Mr Stewart the fact that Bungabura would keep the paintings?
A. Are you suggesting I understood that?
Q. Yes?
A. You are quite wrong, sir."
It was then put to Mr Hannaford (t.197):-
"Q. And you said to him, I suggest, 'Would I be able to use images in catalogues and books about my work?' And he said, 'Yes, Alf'?
A. No, I would never have had to ask him for use of my own work.
Q. You said, 'Could I get access to the portraits to exhibit and submit for prizes?' And he said 'Yes'?
A. No.
Q. At some point he said, 'We will make sure you are accredited at all times as the artist with all the media and the PR associated with the subjects.' He said that?
A. No".
A number of questions arise in respect of Mr Stewart's evidence as to the basis he said he identified to Mr Hannaford for Bungabura requiring ownership in the paintings. They include at least the following:-
(1) What was intended to be conveyed by Mr Stewart's claimed reference to being "guardians of the girls stories" .
(2) What bearing could the "girls' stories" have on a series of portraits that were to be publicly exhibited and promoted and imaged in the Black Chicks Talking book?
(3) What factors or matters determined or required that the paintings be "controlled and managed" by "the indigenous stakeholders" ?
(4) Why would an accomplished artist agree to spend a great deal of time producing 10 paintings and then, having done so, effectively give them away to persons (Mr Stewart and his company) with whom he had had no prior relationship or dealings for their own benefit?
I will set out the elements or matters that the plaintiff is required to establish in order to obtain the relief sought later in this judgment. It is sufficient at this point to say that I accept the submission made by Mr Gregg on this issue of onus.
Other submissions made on behalf of the defendants also proceed upon the basis that Mr Hannaford had the onus of proving an agreement as referred to in the Further Amended Statement of Claim ( Defendants' Outline of Submissions , at paragraph 10).
The defendants' submissions address at length, what is referred to as, "Objective Material" at paragraphs 22 to 45 of the Defendants' Outline of Submissions .
It was contended that three of the documents identified indicated that the parties had acted on the basis that Mr Hannaford had been "commissioned" to produce the paintings. These included the letter of 16 December 1999, 19 December 1999 receipt and the CV on the Monograph written by Mr Neylon. However, it was accepted that neither Mr Hannaford nor Mr Stewart had discussed a "commission" or "commissions" .
I have elsewhere referred in this judgment to the fact that I do not accept the submission made at paragraph 31 of the defendants' written submissions that Mr Stewart's letter of 16 December 1999 should be regarded as "neutral" . In particular, I have dealt with the question raised as to the distinction between the reference to the proceeds of a sale of the paintings being for the benefit of a mentoring support scheme and the proceeds of the book. I need not here repeat what I have stated on that subject. I note the submission in paragraph 32 of the defendants' written submissions that the letter of 16 December 1999 was "floating" different proposals referred to in the submissions. If anything, in my opinion, that is consistent with there having been an absence of a concluded agreement between the parties, that is, an absence of negotiations leading to final terms and conditions.
I have noted the submission made in relation to the "19 December 1999 Receipt" elsewhere, as well as the reliance upon the particular matters identified in the book written by Mr Neylon. I do not need to repeat here the observations I have made on those matters.
In respect of the mentoring fund, submissions were made that Mr Hannaford's recollection as to what was said about a mentoring fund was "overlaid with later impressions and reconstructions" (at paragraph 47). I do not consider that there is any significance to be attached in any variation in Mr Hannaford's evidence as to whether he employed the expressions "for Aboriginal women" or "Aboriginal young women" or any other combination. The conclusions expressed later in this judgment that Mr Stewart did refer to proceeds that would flow to a mentoring and support fund have been reached by me having regard to the evidence and the submissions of both parties.
In relation to Mr Hannaford's evidence that he had spoken to Mr Stewart in the period 2005 to 2008 requesting the return of the paintings, detailed written submissions were made in the defendants' written submissions in relation to each occasion identified by Mr Hannaford. It was accepted as a general proposition that, to the extent that the evidence was sought to demonstrate that some action had been taken to recover the paintings, then no contrary submission was made. However, insofar as the plaintiff asserted that the evidence constituted an admission by Mr Stewart as to ownership by Mr Hannaford of the portraits, then, for reasons set out in the written submissions, it was contended that the evidence did not establish any such admission.
In the course of the submissions, particular reliance was placed upon the email exchange between Mr Stewart and Mr Neylon in September 2007. I do not, here, reproduce the full detail of the submissions in that respect, although I have considered the argument that has been made with respect thereto.
In relation to the 2005 request for the return of the paintings, a number of matters were raised (at paragraph 52). One of those matters was that the evidence of Mr Hannaford did not involve any assertion of ownership by him or a concession of ownership on the part of Mr Stewart. I will deal later with the question as to whether or not Mr Hannaford's request for the return of the paintings implicitly involved an assertion of ownership and Mr Stewart's alleged response as an acquiescence or acceptance by him of such ownership.
The submission on behalf of the defendants, that the request by Mr Hannaford in 2005 for the return of the paintings did not involve any assertion of ownership by Mr Hannaford or an admission by Mr Stewart, was a submission repeated in respect of Mr Hannaford's requests for the return of the paintings made in 2006 and 2007. Similarly, in respect of the telephone call on the landline made by Mr Hannaford to Mr Stewart on 1 August 2008, it was contended that the evidence did not support a contention that anything stated by Mr Stewart amounted to an admission of the plaintiff's ownership of the portraits. That submission was qualified insofar as it acknowledged Mr Hannaford's evidence in which he said that he used the phrase "my paintings" when speaking to Mr Stewart on the phone. It was observed that Mr Hannaford accepted that he could not say that he definitely used that particular phrase, but only maintained that that was the "gist" of it.
Mr Stewart's evidence in relation to the evidence of Mr Hannaford that he agreed in the phone calls to return the paintings was denied by Mr Stewart.
In relation to Mr Stewart's credit, it was submitted that he was candid in confronting his lack of recollection on a number of matters. It was observed that, on a number of occasions during cross-examination, Mr Stewart experienced considerable difficulty in following the cross-examiner's "dictate" that he relay conversations in direct speech. It was submitted that the difficulties he experienced in responding to what was described as an open-ended set of questions in terms of what was said in direct speech on particular occasions, should not detract from acceptance of his evidence.
It was contended that the reliability of much of Mr Hannaford's evidence was effected, as would be expected, by the passage of time overlayed by reviewing and considering the material that has emerged since the proceedings commenced. It was submitted that, in a number of respects, he had difficulty in recalling events.
In relation to the parties to the agreement pleaded by the defendants, it was contended that Bungabura entered into the agreement with Mr Hannaford. On that basis, any breach of the agreement was made by it, rather than Mr Stewart, and that the company, and not Mr Stewart, had possession of the paintings. It was contended that, at no point, had Mr Stewart asserted either ownership or a right to possession in his own right. He had only done so in his capacity as a director of Bungabura.
In this latter respect, a number of matters were identified in the written submissions to support the contention that the relevant party was Bungabura and not Mr Stewart (at paragraph 67).
Findings
(1) Mr Hannaford's motivation for supporting the project
Mr Hannaford's motivation for agreeing to produce the 10 Black Chicks Talking project portraits without remuneration was a benevolent one. I accept his evidence in that respect without reservation. There was, in fact, as earlier discussed, no real issue about his motivation in agreeing to paint the portraits. There was no dispute that he had acted on a benevolent and not a commercial basis as he had done with respect to other causes he had supported in the past.
(2) The "terms" of the oral agreement
Leaving to one side for the moment what was actually said in the discussions between Mr Hannaford and Mr Stewart and, whether the relevant discussions took place over the telephone or in the motel restaurant, it is necessary, in my opinion, to have regard to the circumstances and context in which the discussions took place.
On Mr Stewart's own account, the meeting he said took place at the motel restaurant was the first face to face meeting he had had with Mr Hannaford, whom he had never met in person prior to that time. The defendants' case was that the discussion over dinner at the restaurant constituted the terms of a binding enforceable contract.
An examination of the relevant circumstances, however, indicates clearly enough that the meeting was in the nature of a preliminary discussion of a range of issues. In cross-examination, Mr Stewart referred on a number of occasions to the fact that the discussions was "part of the pitch" by him about the project to Mr Hannaford (t.256, line 42; t.263, line 23).
Although I accept that Mr Hannaford agreed in his early discussions to paint the portraits without seeking a commission, the discussions were clearly introductory in nature rather than detailed negotiations for settling the terms and conditions of a binding agreement enforceable at law.
The evidence of both Mr Hannaford and Mr Stewart (Mr Stewart's evidence is discussed below) establish that the discussions were in the nature of an overview or outline the proposed project. This was reflected in Mr Stewart's evidence. He was asked (t.248-249):-
"Q. What words did you say about that project?
A. Well, I asked Alf if he was interested.
Q. Interested in what?
A. In painting the portraits.
Q. What portraits?
A. The portraits of the nine women involved and the author, Leah Purcell.
Q. Go on?
A. Then I just laid out the proposition of --
Q. What did you say?
A. Would he be interested in painting them, mentioned the fact that Scott had said to me that Alf waives his fees on projects.
Q. What did you say to Mr Hannaford about that? What words did you use?
A. I said to Mr Hannaford that there's no budget for this project and about waiving his fee to paint the portraits.
Q. No, what did you say about that? You just said 'and about'. What I am asking you is what words you used to Mr Hannaford, if you are able to tell the court?
A. Yeah, look, all I remember is just outlining the deal on the night , the terms that we went through about his involvement in the project ..." (emphasis added)
On the question of the paintings, he was asked (t.249):-
"Q. Is there anything else you remember you said to Mr Hannaford on this occasion?
A. Yes. I said if he agreed to do the paintings it was important for Bungabura to keep the paintings at project's end as the indigenous stakeholders in the project, it was important for us to protect the girls' story and their images, and that's what we spoke about as well."
A little later it was put to him (t.250):-
"Q. You did not say to Mr Hannaford words to the effect, 'Bungabura wants to keep the paintings', did you?
A. I said that at that meeting.
Q. What do you say Mr Hannaford replied to that?
A. Words to the effect of 'okay', he agreed.
Q. 'Okay'. That's all he said, 'okay'?
A. Yeah, pretty much a short reply. I remember we were in a flow, we were in a conversation , we were talking about ownership, about sittings, about the project." (emphasis added)
It is clear and I find:-
(1) That the early discussions in December 1999 including the initial face-to-face meeting Mr Stewart referred to were not in the nature of negotiations to settle the final terms and conditions of an arrangement or an agreement for Mr Hannaford to paint the portraits and for the images to be used in the book. Mr Stewart's evidence that, "... all I remember is just outlining the deal on the night, the terms that we went through about his involvement in the project" is consistent with discussions in outline of the project that Mr Stewart was proposing for Mr Hannaford's consideration and support.
(2) In a very real sense, this case is about a unilateral arrangement in which the only party to it that offered anything of substantial value was Mr Hannaford with no valuable consideration or benefit having been offered in return by the defendants.
(3) The defendants have not, in my opinion, discharged the burden on them to prove that a legally binding obligation arose under the alleged agreement pleaded in paragraph 9 of the Defence.
The terms of Mr Stewart's letter dated 16 December 1999 are consistent with the conclusion that no final agreement had been concluded by Mr Hannaford and the defendants. The letter referred to a number of matters including the possibility of a commission of $10,000 being paid although doubt expressed as to what percentage could be finally offered. That reference was followed by the statement "... at some stage we will organise an agreement spelling out things like what exactly the portraits will be doing in relation to the book and potential exhibitions, and we are very excited at the prospect of the co-author's portrait of Leah Purcell being entered in the 2000 Archibald Prize ..."
In cross-examination, the matter was raised with Mr Stewart (t.313):-
"Q. Your letter in the third paragraph says, 'At some stage we will organise an agreement spelling out things'. It goes on to nominate some things. You, in writing those words, contemplated that there would be, at some stage, a written agreement between either you and Mr Hannaford or Bungabura and Mr Hannaford brought into existence, didn't you?
A. Yes.
Q. Such a written agreement was never drawn up, was it?
A. No.
Q. And certainly never executed?
A. No ..."
Whether or not Mr Stewart in fact did say that Mr Hannaford would benefit from the project in terms of accreditation for his works, the publicity associated with the project and "kudos" , I accept unreservedly Mr Hannaford's evidence:-
(1) That none of those matters played any part at all in his willingness and preparedness to support what he considered to be a benevolent project.
(2) That he enthusiastically agreed to support the project entirely for benevolent and not commercial reasons. His willingness to support the project was based upon his interest in a scheme or project that would generate funds to assist and support young indigenous people. He was led in that respect to understand by what Mr Stewart told him that the proceeds from the book would go to support a scheme of that kind.
(3) Findings on the issue of ownership of the paintings
Did Mr Hannaford agree that Bungabura would become the owner of the paintings? In examining the evidence in relation to this question, a relevant point of inquiry is to ascertain a rational basis as to why Mr Hannaford would agree that Bungabura, a company with which he had no prior association (nor did he have any with Mr Stewart) would not only benefit from the proceeds of the project through the use of the images of the paintings and the exhibition of the paintings themselves, but would also benefit by becoming the owner of 10 valuable portrait paintings.
As previously noted in paragraph 17 of his affidavit affirmed on 5 February 2010, Mr Stewart said that he told Mr Hannaford that Bungabura "wants" to keep the paintings at the end of the project. By way of what was, in effect, an explanation, he stated that "We" were the "... guardians ... of the girls' stories ..." and that, as part of the exhibition, "they" (inferentially, the paintings) "... needed to be controlled and managed by the indigenous stakeholders in the project" . It was also earlier noted on Mr Stewart's account, Mr Hannaford raised no query or questions and simply said words to the effect "okay" .
In cross-examination, Mr Stewart was asked, in effect, whether, apart from Ms Purcell, the other women, whose portraits Mr Hannaford painted, "... required as a condition of their participation in the interview process for the book that Bungabura Productions obtain ownership of the paintings and the images" (t.269). Mr Stewart replied "I don't know that they required that. I think that they expected that that's what we would do as a production company, look after their stories and look after their images and their portraits and pictures" (t.270).
Mr Stewart's evidence on this aspect was far from impressive. As discussed earlier in this judgment, he sought to expand the concept of Bungabura and Mr Stewart being "the guardians" , not only to "the girls' stories" , but to the paintings themselves. The cross-examination of Mr Stewart revealed that the women who were the subjects of the paintings imposed no requirement that the portraits would need to be protected:-
"Q. And they [referring to nine of the 10 women] spelt that out to you or to Miss Purcell or to Bungabura, did they, before their participation?
A. No. We spelt it out to them, that we were there to look after them and to protect them as we could with their stories, with their images, with their pictures."
Discharge of the onus of proof
In his final oral submissions, Mr Beech-Jones argued that the fact that Mr Hannaford created the paintings and had ownership and possession of them before delivering them into the control of the defendants was not sufficient to establish "ownership" in the paintings in him. It was contended that it came back to a question of "the agreement" . The plaintiff did not assert any other right of possession (t.385-387). Having parted with possession, he had the onus of proving the agreement referred to in the Further Amended Statement of Claim.
In a particular case it was acknowledged a plaintiff may not have to show much evidence to displace the fact of an agreement under which an owner of a chattel parted with possession (t.385-386).
The plaintiff's case as pleaded and particularised as discussed earlier in this judgment, was framed and based, inter alia, on the fact that he, as creator and owner, parted with possession of the paintings for a limited purpose only. I have accepted his evidence in that respect and I have rejected the defendants' defence based on the agreement pleaded in the Defence.
In those circumstances, the plaintiff has proved each and all of the ingredients of the tort of detinue and, in doing so, he has discharged the legal and evidentiary onus necessary to establish his entitlement to the relief claimed.
Relief claimed
I have earlier referred to the pleading of particulars of the plaintiff's claim and the general principles applicable to the plaintiff's claim for relief, namely:-
(1) An order requiring the defendants to deliver up and return to the plaintiff the 10 paintings and frames identified in the Further Amended Statement of Claim.
(2) Damages for detinue or conversion.
(3) Costs.
It has been observed that where a defendant is still in possession of a chattel, an action in detinue may result in one of three forms of judgment. Judgment may be given for:-
(1) The value of the chattel as assessed and damages for its detention.
(2) The return of the chattel or recovery of its value as assessed and damages for its detention.
(3) Return of the chattel and damages for its detention: The Laws of Australia at 33.8.950.
It is there stated:-
"... Under the third form of judgment, the plaintiff is limited to obtaining specific restitution of the chattel and the only damages are those awarded in respect of the period of detention. However, the forms of judgment depend on the current state of the Rules of Court, in particular, Courts in particular jurisdictions."
In the findings and conclusions expressed above, it is clear that the three substantive requirements for an action in detinue have been satisfied in these proceedings. In accordance with the principles that determine the appropriate form of relief, it is clear that orders as sought in paragraphs 13.1 and 17.1 should be made.
In the ordinary course that costs follow the event rule should apply and, subject to any indication that the defendants wish to be heard on the question of costs, I propose to make an order that the defendants pay the plaintiff's costs on the ordinary basis as agreed or assessed.
Conclusions
Even on the defendants' case, the purpose and object of obtaining the plaintiff's agreement to paint the portraits was to provide images of the same for inclusion in the book Black Chicks Talking and for the paintings to be publicly exhibited and for use in promoting other aspects of the project.
Fulfilment of that purpose and object did not, on the evidence, necessitate or require a need for Bungabura to become the owner of the portraits.
Proof of the terms of the agreement pleaded by the defendant, being one that was alleged to have arisen from discussions between Mr Hannaford and Mr Stewart in late 1999, depended upon an acceptance of Mr Stewart's evidence and the rejection of that given by Mr Hannaford.
On significant aspects, Mr Stewart, in my assessment, was an unreliable witness. This observation applies, in particular, in relation to two of the factual matters that were subjacent to the Defence:-
(1) Firstly, Mr Stewart had been adamant that he had not proposed the project to Mr Hannaford upon the basis that the proceeds of the book would go towards a mentoring scheme for young indigenous women or young indigenous people. It was, however, Mr Hannaford's position that it was this very aspect that attracted him to support the project.
(2) Secondly, it was central to the defendants' case that Mr Stewart was to be accepted when he said that ownership of the paintings was specifically discussed between him and Mr Hannaford and that Mr Hannaford agreed, without question, to Mr Stewart's proposition that ownership in them would reside in Bungabura.
In relation to (1) above, Mr Stewart firmly and repeatedly denied in evidence that any reference had been made in the discussions with Mr Hannaford to the effect that the proceeds from the book would be applied for the benefit of a mentoring and support scheme. That evidence was important on the question as to whether Mr Hannaford agreed to support the project, without benefit to him, on the basis that it had been represented by Mr Stewart that the project would have a benevolent purpose or focus.
In circumstances discussed earlier in this judgment, Mr Stewart later changed his evidence and accepted, consistently with the evidence that had been given by Mr Hannaford, that there had been a discussion between them on the subject of a mentoring and support scheme for young indigenous persons (or young indigenous women) and that this was related to the project (including the book).
In relation to the matter referred in (2) above, Mr Stewart's evidence as to why Mr Hannaford would give the paintings to Bungabura went to the significant issue in the proceedings. Mr Stewart's evidence suffered from a number of difficulties:-
(1) His evidence on the matter was inherently improbable.
(2) It lacked any rational explanation as to why the plaintiff would give the paintings to Bungabura (and, indirectly, for the benefit of its director, Mr Stewart) who, at the material time, were "strangers" to him.
(3) The evidence was dependent upon the reliability, including in particular, the veracity of Mr Stewart's evidence and explanation as to why Bungabura had to become owner of the portraits (the alleged need to protect the "girls' stories" explanation discussed above).
The subsequent conduct of Mr Stewart, including in particular, the conversations that he had with Mr Hannaford who had sought the return of the paintings implicitly recognised Mr Hannaford's entitlement as owner of the paintings.
Having considered the evidence as to whether Mr Stewart, as Mr Hannaford stated, agreed to return the paintings, I unreservedly accept Mr Hannaford's evidence.
In particular, I accept Mr Hannaford's evidence as both truthful and reliable evidence, namely, that, in 2005, 2006 and 2007 when he requested Mr Stewart to return the paintings, Mr Stewart responded by stating that he would return them (but did not). The responses by Mr Stewart to Mr Hannaford's requests implicitly acknowledged Mr Hannaford's right to possession of the paintings as owner of them.
The defendants have failed to discharge the onus of proving the agreement pleaded in their Defence.
The plaintiff has established his ownership of the paintings. He is entitled to the order sought in the Further Amended Statement of Claim for the return of the paintings to him.
It was contended in the proceedings that, in the event that the plaintiff was successful, that any relief ought be ordered against Bungabura and that the proceedings should be dismissed against Mr Stewart.
At all material times, as earlier discussed, the directors and shareholders of Bungabura were Mr Stewart and his partner, Ms Purcell. The relevant discussions and dealing concerning the paintings were conducted by Mr Stewart. Even if it be accepted that at all times Mr Stewart acted on behalf of Bungabura in his dealings with Mr Hannaford, there is, in my opinion, no support for the proposition for which Mr Stewart contended, namely, that relief should only be granted against his company, and not himself personally. On the assumption that he was, at all material times, representing the company in his dealings with Mr Hannaford he would, in any event, be liable in accordance with the principles that determine the liability of directors for the torts of their company.
Clearly, insofar as any of the acts involved in the dealings (including the discussions with Mr Hannaford) were conducted on behalf of Mr Stewart's company, he, Mr Stewart, was privy to all relevant acts involved in the dealings. Indeed, he was the only director who entered into relevant discussions with Mr Hannaford, signed documents and organised payment of expenses.
In Performing Right Society v Ciryl Theatrical Syndicate [1924] 1 KB 1 at 14, Atkin LJ observed that, if those in control of a company, namely, it's directors, expressly direct that a wrongful thing be done, the directors may also be held responsible for the consequences. That principle has been re-stated and applied in Private Parking Services (Vic) Pty Limited v Huggard (1996) Aust Torts R 81-397.
It is clear that a director is liable for the tortious acts of his company which the director has ordered or procured to be done by the director: see Evans & Sons v Spritebrand Limited [1985] 1 WLR 317 at 324 per Slade LJ.
On the evidence in the present case, the facts, of course, establish that Mr Stewart was, throughout, instrumental in and had direct personal involvement in matters leading to possession of the paintings being obtained by Mr Stewart and/or Bungabura. Accordingly, even assuming that he was at all times acting on behalf of his own company, a tort, whether it be detinue or conversion, committed by the company, in the circumstances of the present case, is a civil wrong for which he is liable.
Quite apart from Mr Stewart's liability for any acts of his company, which were initiated and conducted by him, his own evidence, as stated in his affidavit affirmed on 5 February 2010 at paragraph 8, established that he took the paintings to his home in Newmarket, Brisbane, Queensland about 18 months to two years prior to swearing that affidavit.
Accordingly, actual control and possession of the paintings during the currency of the present proceedings (until the making of the orders of McCallum J on 23 March 2010) resided in Mr Stewart. Detinue having been established, the remedy lies against the person who, at the material time, held possession of the chattels.
In addition to possession, it was Mr Stewart who directly made the decision to refuse to return the paintings and he acted accordingly.
The defendants having failed, in particular, on the issue of "ownership" , there is no other basis disclosed in the Defence or otherwise which would shield Mr Stewart from liability and entitle him to dismissal of the proceedings.
Orders and directions
I propose to make an order that the defendants deliver up to the plaintiff, the property of the plaintiff, namely, the series of 10 portrait paintings and their frames (being the portraits listed in paragraph 7 of the Agreed Statement of Facts, Exhibit A).
As the subject paintings are presently the subject of the orders made on 23 March 2010, consideration will need to be given to the need for ancillary orders whereby the defendants are to do all things necessary whether by signing necessary authorities or otherwise, to enable the paintings to be released and transported and delivered to the plaintiff.
I direct the parties to produce short minutes of order to give effect to this judgment.
I, accordingly, grant leave to the parties to apply with respect to any ancillary orders arising out of the Further Amended Statement of Claim and the judgment including costs.
In relation to costs, I am of the opinion that the ordinary rule as to costs, namely, the rule that costs follow the event, should apply so that the plaintiff is entitled to a costs order on the ordinary basis against the first and second defendants. Unless the defendants wish to be heard further on this aspect, I will, at the expiration of 28 days from the date of this judgment, subject to any application to re-list the proceedings, proceed to make an order in those terms.
Accordingly, I direct that my Associate be advised by the parties within 28 days of the date of this judgment in the event that there is a need for the proceedings to be re-listed for any purpose referred to above. Otherwise, leave to lodge with my Associate agreed short minutes of order within the abovementioned period.
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Decision last updated: 20 May 2011
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