Johansen v Art Gallery of NSW Trust

[2006] NSWSC 577

CITATION:	Johansen v Art Gallery of NSW Trust [2006] NSWSC 577
HEARING DATE(S):	29 and 30 May 2006
JUDGMENT DATE :	14 June 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	The plaintiff’s claim should be dismissed.
CATCHWORDS:	CHARITIES [58] – Charitable gifts and trusts – In general – Construction – Ascertainment of objects – Particular words and phrases – “Painted” – Trustees to give prize for best portrait painted by specified people - EQUITY [134] – Trusts and trustees – Powers, duties, rights and liabilities of trustees – General matters – Rules governing exercise of discretion – Where absolute discretion - How far court will interfere.
CASES CITED:	Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 Attorney-General v Trustees of National Art Gallery of NSW (1944) 62 WN (NSW) 212 Bendixen v Coleman (1943) 68 CLR 401 Bloomfield v Art Gallery of New South Wales Trust NSWSC 23 September 1983 unreported Helsham CJ in Eq Bruyn v Perpetual Trustee Co Ltd (1974) 131 CLR 387 Dyson v Pharmacy Board of New South Wales (2000) 50 NSWLR 523 Gorringe v Mahlstedt [1907] AC 225 Palmer v Bank of New South Wales [1973] 2 NSWLR 244 Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327 Perpetual Trustee Co Ltd v Groth (1985) 2 NSWLR 278 Perrin v Morgan [1943] AC 399 R v Francis-Wright (2005) 11 VR 354 Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705 Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 Maurice Cullity, “Judicial Control of Trustees’ Discretions” (1975) 25 University of Toronto Law Journal 99 G Dal Pont, Charity Law in Australia (2000) 359 Theobald on Wills (16th ed, 2001) 215 - 232
PARTIES:	Tony Don Johansen (P) Art Gallery of New South Wales Trust (D1) Craig Ruddy (D2)
FILE NUMBER(S):	SC 2867/04
COUNSEL:	Dr C J Birch SC, M B Duncan & F Sinclair (P) B W Walker SC & S Goddard (D1) T Molomby SC & R K M Rasmussen (D2)
SOLICITORS:	Moloney Lawyers (P) Freehills (D1) Kalantzis (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 14 JUNE 2006

2867/04 JOHANSEN v ART GALLERY OF NEW SOUTH WALES TRUST & ANOR

JUDGMENT

1 HIS HONOUR: The subject of these proceedings is a portrait of David Gulpilil, a well known Aboriginal Australian actor, entitled “David Gulpilil – Two Worlds”. The portrait is the work of Craig Ruddy, the second defendant. In 2004, it was awarded the prestigious Archibald Prize by the first defendant, Art Gallery of New South Wales Trust. The first defendant was acting as the trustee of the relevant trust created by the will of the late J F Archibald, well known as the proprietor and editor of the Bulletin magazine. The plaintiff, Tony Don Johansen, was an unsuccessful entrant for the 2004 Archibald Prize. He seeks a declaration that the award of the prize to the portrait of Mr Gulpilil was invalid on the ground that it could not be said to have been “painted” by its creator.

2 The defendants both contended (a) that it was not necessary for the picture to be a “painting” in order to be awarded the prize, but only to be a portrait, which it is not disputed that it is; (b) that, insofar as the portrait was required to be “painted” or a “painting”, it satisfied that criterion.

3 It may seem strange that a court of law (or equity) should pass judgment upon the result of an art competition. However, that is not in fact what is occurring. The Court is in no way concerned with the merits of the portrait (which are generally agreed to be high, unlike the subject of at least one earlier set of proceedings involving the Archibald Prize). The sole issue for the Court as a court of equity is whether the award was in breach of the terms of the charitable trust in the execution of which the first defendant awarded the prize.

4 The terms of the relevant gift in clause 10(a) of the late Mr Archibald’s will are that certain property was to be held upon trust to pay the income to the first defendant:

“… to provide an annual prize to be styled ‘The Archibald Prize’ for the best portrait preferentially of some man or woman distinguished in Art Letters Science or Politics painted by any Artist resident in Australasia during the twelve months preceding the date fixed by the Trustees for sending in the Pictures the Trustees to have the right to exhibit such winning Picture in the said Gallery for a space of not more than two months from the date so fixed. If during any such twelve months no competing picture shall in the opinion of the trustees be painted worthy of being awarded a prize then such income shall be accumulated and invested as hereinafter authorised with liberty to the trustees at any part of such period to purchase by such accumulations or part thereof any portrait that may have won any prize so given such exhibited or purchased prize to bear a label endorsed ‘The Archibald Prize’.”

5 The will was dated 15 March 1916 and Mr Archibald died in 1919. The Prize was first awarded in 1921 and has been awarded each year since then bar two. During the 80 odd years of its existence, the trust has been the subject of proceedings in this Court on three previous occasions. That most famous and most relevant to the issues before the Court on this occasion resulted in the judgment of Roper J in Attorney-General v Trustees of National Art Gallery of NSW (1944) 62 WN (NSW) 212 (“the Dobell case”). In that case, it was alleged that the award of the Prize to a painting by William Dobell of Joshua Smith was not valid as it was not a “portrait” within the meaning of the bequest, but a caricature. The claim failed. To Roper J’s judgment I shall return in due course. The second case was Bloomfield v Art Gallery of New South Wales Trust NSWSC 23 September 1983 unreported. In that case, Helsham CJ in Eq decided that a portrait painted from a photograph, rather than from life, did not fall within the terms of the trust. The third case was Perpetual Trustee Co Ltd v Groth (1985) 2 NSWLR 278. In that case, there was a general challenge to the validity of the trust as a charitable trust. Powell J held that the bequest was a bequest for the advancement of education and was therefore a valid charitable trust.

6 The portrait is not entirely easy to describe in a way relevant to the arguments in these proceedings. The case put forward by the plaintiff was that it is a drawing rather than a painting. The portrait depicts Mr Gulpilil’s head, shoulders and upper torso. It appears, from the evidence, that Mr Gulpilil has a mass of tangled hair. This is represented in the portrait by a mass of lines. It is hard to think how it could be otherwise. Close examination of the portrait shows the presence of many lines, some appearing almost as line on line, as has been said, in the depiction of Mr Gulpilil’s face and body. On the other hand, there are present in the face and parts of the body substantial areas which appear as solid masses of black. The portrait is supported upon wallpaper, which appears to have a yellow pattern on a light background. Despite this colouring in the wallpaper, the principal impression of the portrait is that it is in black or shades of grey. It is agreed by all parties that black and white are regarded in the art world as colours for the purposes of painting and drawing.

7 The second defendant has given detailed evidence of the process by which he created the portrait. He says that the principal medium he used was charcoal in various forms, including sticks, blocks and crushed charcoal. This he applied in layers and supplemented, at various stages, with other materials, including acrylic paint, aquarelle pencils, chalk pastels, graphite pencil, ordinary colour pencils, Conté sticks and raw black pigment. Initially he applied the charcoal dry, using sticks in a manner similar to a pencil, blocks rubbed against the surface of the wallpaper and crushed charcoal rubbed with his fingers. During the following stages, he built up layers of pigment, most of which was charcoal, but which also included other materials. He moved it around the surface of the wallpaper with his hands and a damp cloth. He sometimes applied hair spray, varnish and water to the work, which assisted in the manipulation of the pigment and allowed him to smudge and blend the lines he had created. Of the process he said:

“All of the painting except the hair and the raw wallpaper around the sides, was created by mixing and spreading raw pigment with varnish and/or water.”

In some places, this has resulted in large areas of solid black. In other places he has “rubbed back” the layers of charcoal with his hands and a cloth to expose the wallpaper underneath. He also applied acrylic paint with a thick brush, the effect of which is discernible in parts of the portrait, particularly around the cheeks. In the later stages, Mr Ruddy added more sweeping lines with graphite and charcoal. Much of the effect of the hair was created with lines drawn with charcoal sticks and blocks, graphite and pencils. This evidence was not significantly detracted from in cross examination and I accept it.

8 Expert evidence was led for both the plaintiff and the defence. The plaintiff’s expert was Michael Sourgnes, an art consultant and valuer, who has been the curator of various art galleries. The defendant’s expert was Betty Churcher, well known as an art educator and television presenter and as a former curator of the National Gallery of Australia. Mr Sourgnes was firmly of the view that the work is a drawing and Mrs Churcher equally firmly of the view that it is a painting. Both defended their views with conviction and skill. However, although the parties agreed that their evidence should be received during the trial, there are grave doubts as to the extent, if any, to which it can be taken into account by the Court. In particular, it is argued that the words of the bequest are ordinary English words to be construed according to their natural and ordinary meaning and their meaning is not to be established by expert evidence. The degree to which it may be used has been debated in final address and will be decided in this judgment.

9 As to the process through which the trustee went in determining the matter, evidence of this was given by David Gonski, the president of the board. Mr Gonski, who has held that position for some years, deposed that he had read (although not necessarily in 2004) and was familiar with the terms of the relevant bequest. Before the meeting at which the decision was made, he anticipated that the question might be raised at the meeting as to whether or not the subject work could be characterised as a painting. So that he could answer that question, if raised in the meeting, he sent for the opinion of an expert, namely, Barry Pearce, the curator of Australian art at the Gallery as to whether the picture could be characterised as “painted”. Mr Pearce’s answer came that it could. This accorded with Mr Gonski’s personal view, already formed, that the picture qualified as being within the terms of the bequest. He was not asked the question at the meeting, nor was there any adversion there to this aspect of the matter. No argument was put to the Court arising out of the matters appearing from Mr Gonski’s evidence.

10 I set forth the following dictionary definitions. These are all from extracts from the Dictionaries, which have been furnished to me on behalf of the plaintiff, other than the current definitions in the Macquarie Dictionary. I have, of course, selected the definitions relevant to the subject matter, namely, the creation of a work of art. In setting them forth and considering them, I do not lose sight of the fact that the only one of the words defined that actually appears in the bequest is “painted”. In particular, there is no reference to “drawn” or “drawing”, the category which the plaintiff says the picture should be assigned to, thereby removing it from the category of “painted” or “painting”.

11 In the second edition of Dr Johnson’s Dictionary of the English Language by the Rev H J Todd published in 1827, the following definitions appear. “To draw” is defined as “To practise the art of delineation.” “Drawing” is defined as “Delineation; representation.” The Dictionary quotes the following lines from Pope:

“They random drawings from your sheets shall take,
And of one beauty many blunders make.”

“To paint” is defined as “To represent by delineation and colours.” “Painting” is defined as “The art of representing objects by delineation and colours.” There is no separate definition of “painted”.

12 In the edition of Webster’s International Dictionary of the English Language revised by Noah Porter and published in 1896, “Draw” as a verb is defined as “To perform the act, or practise the art, of delineation; to sketch; to form figures or pictures.” “Drawing” is defined as:

“The act or the art of representing any object by means of lines and shades; especially, such a representation when in one color, or in tints used not to represent the colors of natural objects, but for effect only, and produced with hard material such as pencil, chalk, etc; delineation; also, the figure or representation drawn.”

In the same Dictionary, “Paint” as a verb is defined as:

“To form in colors a figure or likeness of on a flat surface, as upon canvas; to represent by means of colors or hues; to exhibit in a tinted image; to portray with paints; as, to paint a portrait or a landscape.”

“Painted” is defined as “Covered or adorned with paint; portrayed in colors.” There are then quoted the well known lines from Coleridge’s “Rime of the Ancient Mariner”:

“As idle as a painted ship
Upon a painted ocean.”

“Painting” is defined as follows:

“1 The act or employment of laying on, or adorning with, paints or colors.
2 ( Fine Arts ) The work of the painter; also, any work of art in which objects are represented in color on a flat surface; a colored representation of any object or scene; a picture.”

13 Volume III (1897) of the Oxford English Dictionary contains the following definitions of the verb “Draw”:

“59 To trace (a line or figure) by drawing a pencil, pen, or the like, across a surface …
60 To make (a picture or representation of an object) by drawing lines; to design, trace out, delineate …”

The same volume contains the following definition of “Drawing”:

“2 The formation of a line by drawing some tracing instrument from point to point of a surface; representation by lines, delineation; hence, ‘any mode of representation in which the delineation of form predominates over considerations of colour’ …
3 That which is drawn; a delineation by pen, pencil, or crayon; a representation in black and white, or in monochrome; a sketch.”

In Volume VII (1905) of the same work, “Paint” as a verb is defined as:

“to make (a picture or representation) on a surface in colours; to represent (an object) to the eye on a surface in colours; to represent (an object) to the eye on a surface by means of lines and colour; to depict, portray, delineate, by using colours.”

“Painted” is defined as “depicted in colours, represented in a picture; executed in colours as a picture, likeness or design.” “Painting” is defined as “A representation of an object or scene on a surface by means of colours; a picture.”

14 A comparison of these definitions with the corresponding definitions in the Oxford English Dictionary (2nd ed, 1989) or in the Oxford English Dictionary Online shows definitions which are substantially the same.

15 In the Macquarie Dictionary (4th ed, 2005) “draw” as a verb is defined as “to sketch in lines or words; delineate; depict: to draw a picture.” It contains the following definitions of “drawing” as a noun:

“2 representation by lines; delineation of form without reference to colour. 3 a sketch, plan, or design, especially one made with pen, pencil, or crayon.”

The same Dictionary contains a definition of “paint” as a verb as “to execute (a picture, design, etc.) in colours or pigment.” The definitions it contains of “painted” do not appear material to the present question. It defines “painting” as a noun as “a picture or design executed in paints.”

16 Although the word “painted” which is under consideration was used in a will made in 1916 and which spoke from the testator’s death in 1919, there is no relevant change of meaning in the word since that time. The parties now agree that this is so. It is apparent from the range of dictionary definitions quoted above. It does not seem to me that it matters if the work was executed by some particular technique not known in 1916 or 1919, provided that the work falls within the definition current at that time (and today).

17 It should be added that there is no dispute as to the meaning of the word “paint” as a noun. All parties are agreed as to its meaning which is, as is stated in the Macquarie Dictionary “a substance composed of solid colouring matter intimately mixed with a liquid vehicle or medium, and applied as a coating.”

18 A number of remarks may be made about these definitions. These include that the terms are wide in import and of uncertain boundaries. The definitions are on their face somewhat overlapping. It is true that the definitions of “drawing” tend to have an emphasis on line or delineation. They also have an emphasis on monochromatic quality. The definitions of “painting” have an emphasis on the application of colour and particularly, it would seem, colour applied en masse or so as to create an impression of mass. There is some emphasis on the picture being produced by the application of “paint”, which is, in general terms, pigment intimately mixed with a liquid medium. However, it is interesting that the Macquarie Dictionary definition refers to the application of pigment, apparently without a liquid base. The overlaps in the definitions include references to the creation in each case of a “picture” and a reference to delineation in at least one definition of painting, as well as in definitions of drawing. I do not think it goes outside the bounds of judicial knowledge, but is common knowledge, that line drawing is among the techniques used by painters in the course of creating paintings in the strictest sense.

19 I think it flows from the above that the terms are not matters of strict denotation, their boundaries are uncertain and that there are overlaps between them. It is clear that the techniques of each are at times employed in the other. Some works may fall into both categories, as was contemplated by Roper J in the case of portrait and caricature. Whilst the use of black and white or at least monochromatic colour is referred to in definitions of drawing, it must constantly be remembered that all parties are agreed that black and white are regarded as colours in talking of paintings and drawings. Thus a picture painted with a brush and conventional paints would not, by reason of the fact that it is in black and white alone, be excluded from the category of painting.

20 Turning to the law, I have received considerable assistance from the judgment in the Dobell case of Roper J, who was a distinguished Equity Judge. As I have said, his Honour’s decision was that the award of the prize to William Dobell for the painting of Joshua Smith was valid. Of particular significance are the following portions of his Honour’s judgment. His Honour said at 214:

“If then a suit were brought in which it was sought to control the administration of the trust on the ground that the trustees’ decision as to which of a number of pictures, admittedly portraits, was the best, it is reasonable to expect that expert evidence could be found to support the view that the choice of the trustees was wrong. Yet with all his ability and facility of argument counsel for the relators and the informant was not prepared to argue that such a suit could succeed. In my opinion it could not succeed without showing mala fides on the part of the trustees, because as a matter of construction of the will the ultimate right of choice is given to the trustees, and as a matter of law where the manner of execution of a trust depends upon the formation by the trustee of an opinion or the exercise of a judgment this Court will not interfere with its execution unless it is shown that no bona fide opinion was formed nor bona fide judgment exercised. I accept the statement of principle to be found in Godefroi on Trusts and Trustees (5th ed p 244) ‘A personal trust or discretion involving a matter of opinion or judgment will not be interfered with, unless a fraudulent or mischievous exercise of it takes place or is contemplated.’

In this suit the award has been canvassed not upon the ground that the picture in respect of which it was made was not the best portrait, but upon the ground that it was not a portrait at all. In my opinion, however, the question of whether any competing picture is a portrait is as much a matter upon which the judgment of the trustees is invoked as is that of whether it is the best portrait. The question of whether a particular picture is a portrait is one which I will deal with shortly in this judgment. At this stage, however, I should say that the answer depends on the formation of opinions by the observer to whom it is propounded ……

…… In these circumstances I think that before this Court should interfere in the administration of the trust it must be satisfied that as a matter of objective fact and not of mere opinion the picture is not a portrait, so that the opinion formed by the trustees to the contrary is founded upon a wrong basis of fact and is not truly an opinion upon the question to which the minds of the trustees should have been directed.

If this is the proper test, as I think it is, it is not necessary to interpret the word portrait in order to come to the conclusion that the suit fails; because the evidence is overwhelming, in my opinion, that at least there is a proper basis for forming an intelligent opinion that the picture in question is a portrait.”

21 Despite the view thus expressed his Honour proceeded to determine whether or not the painting of Joshua Smith was a portrait in the sense used in the bequest. His Honour in proceeding to a finding of fact that the picture was a portrait said at 215:

“The word is used in a will which was made in 1916 and came into operation in 1919. In my opinion on the evidence there has been no change in its meaning up to the present time. Having heard the evidence of eight persons, all highly qualified to express an opinion on the meaning of the word as it is understood by artists, I am satisfied that it has not among artists a technical meaning different from its meaning as an ordinary English word in current use among laymen. Even if it had been found that it had such a technical meaning, it has not been shown that the testator was a member of the class which uses the word in the technical sense. The word is an ordinary word of the English language and its meaning has to be ascertained accordingly. ‘This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence’: per Jordan CJ in The Australian Gas Light Co v The Valuer General (1940) 40 SR 126 at 127. From the context in which it is used it is clear that the testator was referring only to a particular type of portrait namely one of a human being and painted by an artist. Considered alone the word has a wider meaning and would include certain forms of sculpture, certain types of photographs and certain other methods of representation all of which the testator has himself excluded and which require no further consideration.

With the assistance of dictionaries and the many works to which I have been referred by counsel in this case, I think that the word ‘portrait’ as used in this will, incorporating in its meaning the limitations imposed by its context, means a pictorial representation of a person, painted by an artist. This definition connotes that some degree of likeness is essential and for the purpose of achieving it the inclusion of the face of the subject is desirable and perhaps also essential.”

In conclusion his Honour said, also at 215:

“Finally I think that it is necessary to state my opinion on the claim that the picture cannot be included as a portrait because it is proper to classify it in another realm of art or work – as caricature according to the information or as fantasy according to a witness for the informant. It is, I think, unnecessary to consider whether the picture could properly be classed as a caricature or a fantasy. If is could be so classed that would only establish to my mind that the fields are not mutually exclusive, because in my opinion it is in any event properly classed as a portrait”.

Because of the relevance of Roper J’s analysis, it is not necessary for me to traverse the relevant legal principles at length.

22 Roper J’s approach accords with the presumption that, in interpreting a will, a testator’s words are to be given their ordinary meaning in the context of the whole document: Gorringe v Mahlstedt [1907] AC 225 per Lord Halsbury at 227; Perpetual Trustee Co Ltd v Archbold (1946) 46 SR (NSW) 327 per Jordan CJ at 329; Bruyn v Perpetual Trustee Co Ltd (1974) 131 CLR 387 per Stephen and Jacobs JJ at 392. Judges are “entitled to be credited with a knowledge of the ordinary use of the English language”: Perrin v Morgan [1943] AC 399 per Lord Thankerton at 418; see also Palmer v Bank of New South Wales [1973] 2 NSWLR 244 per Hutley JA at 252. The meaning of words is to be determined on the basis of judicial notice, dictionaries and context: see generally Theobald on Wills (16th ed, 2001) 215 - 232.

23 In particular, expert evidence is not to be admitted for the purpose of determining the natural and ordinary meaning of an English word: see the citation above by Roper J in the Dobell case at 215 from Jordan CJ in The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 137; see also Bendixen v Coleman (1943) 68 CLR 401 per Latham CJ at 415. That long standing and well established principle has subsequently been reaffirmed in cases such as Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 per Hill J at 296; Dyson v Pharmacy Board of New South Wales (2000) 50 NSWLR 523 per Austin J at 532; and R v Francis-Wright (2005) 11 VR 354 per Williams AJA at 364. In the end, the parties agreed that the meaning of the word “painted” is to be construed according to its natural and ordinary meaning and not in a technical sense specific to a class of artists or art experts to which the testator did not belong and that expert evidence could not be used to ascertain that meaning.

24 The grounds on which a court may intervene in the exercise of discretion by trustees has long been a subject of controversy and some confusion: see Maurice Cullity, “Judicial Control of Trustees’ Discretions” (1975) 25 University of Toronto Law Journal 99. However, I am not aware of any subsequent criticism of Roper J’s approach in the Dobell case. A modern statement of the rule as it applies to charitable trustees is contained in G Dal Pont, Charity Law in Australia (2000) at 359 as follows:

“If trustees, in exercising their discretionary powers, act in good faith, responsibly and reasonably, and inform themselves of matters relevant to the decision prior to making it, the court will not interfere with the exercise of that discretion.”

The authorities cited for the proposition by the learned author are the dicta of Roper J in the Dobell case at 214 and of Robert Walker J in Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705 at 717. Roper J’s approach also appears to be correct by reference to the observations of Heerey J in Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd (1998) 79 FCR 469 at 480, cited with approval by the majority of the High Court of Australia in Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 at 99 – 100. Most importantly, no party in this case contended that Roper J’s approach in the Dobell case to the exercise of discretion by the then trustees of this trust was erroneous. I intend to take the same approach to that subject matter as his Honour.

25 From these statements of the facts and the law, I turn to the contentions put by the parties. I turn first to the argument that the work need not be painted, provided it is a portrait. The defendants put this contention somewhat half heartedly. Mr Walker, of Senior Counsel for the first defendant, in his written outline by way of opening, submitted that “painted” in effect meant only made, by any medium. Counsel for neither the first defendant nor the second defendant really returned to this argument in final submission. The plaintiff relies on the principle that the context in which words are used may shed light on their meaning. He submits that the juxtaposition of the word “painted” with the words “portrait” and “picture” in the will leads to the conclusion that the portrait, to qualify for the Prize, must be “painted”. On this matter, the defendants’ submission cannot be accepted. In the context, “painted” conveys the meaning that the portrait must be a painting, not a work made by some other means. It seems to me that this was Roper J’s view. In the face of the ordinary understanding of the word and the content of the dictionary definitions proffered, I am of the view that it does not in its context bear the meaning contended for by the defendants. Construed as the plaintiff contends, it does the important work of excluding from the Prize various forms of creation, including photographs, which would otherwise fall within the category of works defined.

26 I turn to the argument that, if required to be a painting, the subject work does not qualify for the Prize.

27 Dr Birch of Senior Counsel, who has argued the case with skill and clarity for the plaintiff, has conceded, rightly in my view, that, unless the subject work can on an objective basis be excluded from the category of “painting”, the plaintiff cannot succeed. In seeking to exclude the picture from that categorisation on an objective basis, he has pointed to the domination of line in the work, to the media used, to the general effect of the work and to the techniques which he says have been used to create the mass areas of black, which undoubtedly appear in some parts of the work.

28 The defendants’ argument emphasises the application to the work of colour and pigment, by their admixture with liquid media, which they say is a technique of painting rather than drawing, as well as the application by brush of some acrylic paint.

29 The defendant’s argument, relying heavily on the reasoning of Roper J in the Dobell case, is that the work was characterised by the determination of the trustee in the exercise of its discretion as a painting and there was no error in that determination which would lead the Court to intervene. As I have said, Roper J in the Dobell case dealt with the discretion of the trustee in the formation of an opinion as to the quality or characteristics of some matter. This principle was taken by Roper J to apply not only to an opinion as to which of certain portraits was best, but equally to the formation of an opinion or judgment as to whether or not a picture fell within a certain category. The relevant category in the Dobell case was the category of “portrait”. Here, the opinion or judgment was as to whether or not the work was “painted”. The defendants say that the principle enunciated by Roper J applies, so that the opinion formed by the trustee could not be set aside by this Court, unless “founded upon a wrong basis of fact” or “not truly an opinion upon the question to which the mind[s] of the trustee[s] should have been directed.” I have taken into account the impression the portrait creates on the viewer; the dictionary definitions which I have discussed above and the evidence as to the creation of the work, particularly the use of what may be regarded as techniques of painting as opposed to drawing. In the last regard, the matter contained in the quotation from the second defendant’s evidence which I have set out in [7] above is particularly significant. I have reached the conclusion that minds may well differ as to whether, if the picture must be placed in a single category, that category should be “painting” or “drawing”. But, in view of those matters, I find it impossible on any objective basis to exclude the portrait from the category of a work which has been “painted”, which is the real issue here.

30 I reach this conclusion without reference to the expert evidence given in this case. But to any extent to which I could properly advert to it, that evidence would but fortify my conclusion. It was plain that two highly qualified experts firmly held opposite views as to whether the work could or could not be characterised as “painted”. Each made a spirited and reasoned defence of the view put forward. There could be no clearer demonstration that the picture could be characterised in either way and that, whichever characterisation was made, it was a matter of judgment or opinion.

31 Because of my conclusion that the portrait cannot be excluded from the category of a work which has been “painted”, it cannot be said that the trustee’s exercise of judgment or opinion was wrong or that it is established that it was a breach of trust for the trustee to proceed in accordance with that judgment or opinion. This means that, as in the Dobell case, the Court is not required to interfere with the trustee’s determination. As in that case, that is sufficient to doom the plaintiff’s case to failure.

32 Roper J in that case continued to make his own finding of fact, namely, that the picture was a portrait. In this case, I do not intend to proceed to a judicial finding of fact as to whether or not the work is “painted”. I have already commented that there is a certain appearance of strangeness in courts making determinations concerning the qualities of works of art. That matter is better left to those involved in the art world, including the persons involved in the control and administration of the first defendant, or, for that matter to any “intelligent” viewer, using the word “intelligent” in the manner in which it was employed by Roper J. Since a judicial finding on this subject matter is not necessary for the determination of the proceedings, I think it better not made.

33 The plaintiff’s claim therefore fails and must be dismissed.

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