Nolan v Nolan
[2004] VSCA 109
•10 June 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7568 of 2001
| MOSCA GAI JINX MARGARET ELLERY NOLAN | Appellant |
| v. | |
| LADY MARY NOLAN (both in her personal capacity and as Executrix of the Estate of SIR SIDNEY NOLAN, deceased) and Ors | |
| Respondents |
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JUDGES: | ORMISTON, CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 13, 14, 15, 16 and 23 October 2003 | |
DATE OF JUDGMENT: | 10 June 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 109 | |
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Limitation of actions – Appellant’s claim to paintings as beneficiary under constructive trust – Whether paintings trust property – Whether claim statute barred – Limitation period relating to trust property – Whether alleged donor of paintings Constructive Trustee as Executor or trustee de son tort - Constructive trust – Institutional or remedial – Executor de son tort – Trustee de son tort – Principles applicable – Whether executor de son tort is “trustee” or “personal representative” for the purposes of the Limitation Act 1980 (U.K.) – Whether appellant/claimant is “beneficiary under a trust” for the purposes of the Limitation Act 1980 (U.K.) – Limitation Act 1980 (U.K.) ss. 3(1), 21(1)(b), 38(1) – Administration of Estates Act 1925 (U.K.) s.28 – Administration and Probate Act 1958 (Vic.) s.33(1).
Evidence – Gifts of chattels inter vivos – Intention to make gift – Circumstantial evidence – Proper approach to evaluating circumstantial evidence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P.N. Vickery, Q.C. Mr M.J. Corrigan | Simon Parsons & Co. |
| For the 1st and 2nd Respondents | Mr M.A. Dreyfus, Q.C. | Nathan Kuperholz |
| No appearance for 3rd, 4th and 5th Respondents |
ORMISTON, J.A.:
This appeal arises out of a claim by Mosca Gai Jinx Margaret Ellery Nolan (whom I shall call “Jinx Nolan”) that she is entitled as owner to possession of three paintings by her late father, Sir Sidney Nolan (whom I shall call “Sidney Nolan”), “Hare in Trap”, “Royal Hotel” and “Italian Crucifix”, which are alleged to have been given by Sidney Nolan to his first wife Cynthia Nolan, the appellant’s mother, before her death in 1976. The appellant alleges that she was entitled to the paintings as effectively the sole beneficiary under her mother’s English and Australian wills, although in strictness she is only the sole life tenant, with the estate passing to various charities on her death. The paintings were said to have been converted by Sidney Nolan shortly after his first wife’s death and have never been delivered either to the executors and trustees of Cynthia Nolan’s English or Australian estates or to the appellant, but have passed to the first-named respondent[1], Lady Nolan, the second wife and widow of Sidney Nolan, as executrix and effectively the sole beneficiary of Sidney Nolan’s last will and estate. The claim was brought by way of writ dated 13 September 2001, and was dismissed by the learned trial judge last year in a detailed and complex judgment[2] primarily on the ground that the evidence led at the trial was not sufficient to establish by inference or otherwise that any of the paintings were given to the appellant’s mother. Notwithstanding that she said it was unnecessary to consider the defences, her Honour explained briefly, at paras.[515]-[516], that the action was also barred by reason of the expiration of the relevant limitation period. Each of those conclusions is now raised on appeal for consideration by this Court. It will be seen, as is obvious, that, even if the appellant were to succeed in showing that the learned judge erred in reaching her conclusions as to the gifts of any or all of the three paintings, it will still be necessary to consider the limitation defence before the appellant is entitled to succeed.
[1]There are four other respondents to the appeal, each of whom was a defendant to the action. Their position is noted in the joint judgment at para.[86], but as they each have claims through the first respondent, it is unnecessary to refer to them further.
[2][2003] VSC 121.
The facts relating to this appeal were meticulously set out in detail in the judgment of the learned judge but are also comprehensively summarised in the judgment of Chernov, J.A. and Eames, J.A., in whose judgment I concur on the matters they discuss. Their principal conclusion, with which I agree, is that on the principal ground relied on by the trial judge, it would unfortunately be necessary to remit the matter for a new trial, subject to the remaining issue as to whether the appellant’s claims were barred at the time she commenced her action. It is on that difficult issue that I shall be concentrating in this judgment.
I CIRCUMSTANCES SURROUNDING APPELLANT’S CLAIMS
For that purpose I shall set out only the barest outline of the facts relating to the first issue in the appeal for they are more than adequately summarised in the joint judgment. Of the three paintings in question, “Italian Crucifix” was painted by Sidney Nolan in 1955, “Hare in Trap” was painted in 1946 and “Royal Hotel” was painted in 1948. It was contended that some time in or about 1955 Sidney Nolan gave his wife Cynthia “Italian Crucifix” and that a number of events and circumstances from that time on, particularly the showing of the picture at certain exhibitions, certain correspondence and other dealings should have led to the conclusion by way of inference that the painting had been given to Cynthia Nolan. The same was alleged by reason of certain exhibitions and the surrounding events relating to each of the other two paintings, but from later times, in the case of “Hare in Trap” from about 1970 and in the case of “Royal Hotel” from about 1974 onwards. It is sufficient to say that I agree that a combination of these factors looked at as a whole may have established a circumstantial case that each painting was given to Cynthia Nolan. Having regard to her Honour’s otherwise detailed and careful findings and reasoning relating to so many of the individual incidents relied on by the appellant, it is unfortunate that in the case of each painting those matters were not, for the most part, looked at as a whole in order to determine whether the appellant had made out her claim. Even in relation to the admission of evidence of certain documents, it was open to the judge, having regard to the mode of trial agreed upon, to have regard in some cases to other relevant facts in order to determine admissibility, although that may not have made every such document admissible or admissible for all purposes at the trial. Even assuming that no additional matter was admissible, an accumulation of all the relevant circumstances pointed at least to the possibility that the relevant burden of proof might have been satisfied, especially in relation to the painting “Italian Crucifix” where there was, in particular, a variety of events and materials over a long period which should have been looked at together in order to see whether the appellant’s claim was made out. I should emphasise, however, that I agree with the other members of the Court that the proper outcome was such as to require only a re-trial.[3] The material was not such that this Court could independently reach a conclusion in all the circumstances, so that it does not follow that the Court is necessarily satisfied that each of the gifts were made out. It follows equally that the Court is not satisfied on the present material, whatever might have occurred on a re-trial, that Sidney Nolan converted any one or more of the three paintings, let alone that he did so consciously.
[3]In the end that was all that was sought in the amended notice of appeal.
It is nevertheless necessary, for the purposes of the argument relating to the limitation defence, to set out a few additional facts over and above those which appear in the joint judgment. The circumstances relating to what happened to the three paintings shortly after Cynthia Nolan’s death in 1976 are as exiguous as the rest of the evidence, which is not surprising having regard to the passing of time.
Relevantly the evidence showed that Sidney Nolan over many years, and in particular from 1955 to 1976 and beyond, participated in one way or another in numerous exhibitions of his paintings, most of which were arranged by public and commercial galleries. Frequently those exhibitions were devoted to the showing solely of Sidney Nolan’s artworks. The degree of participation varied from exhibition to exhibition but each involved his lending for the purpose of a considerable number of paintings which he had retained for his own use, although his own paintings were not the only ones displayed. There were conversations and correspondence as to the selection of appropriate paintings, as to the way in which they would be displayed and from time to time as to how the ownership of the paintings should be attributed. The exhibitions were not only in England where he lived for most of the relevant period, but in places such as the United States and Sweden and in particular in Australia, where a number of significant exhibitions of his works were held over the years.
It also is apparent that during their marriage Sidney Nolan gave Cynthia Nolan a number of his paintings, excluding for the present those which are the subject of this proceeding. Discussions and correspondence also took place as to which paintings owned by Cynthia Nolan might be exhibited and from time to time as to how they might be attributed. Other details as to how Cynthia Nolan’s paintings were dealt with and as to the exhibiting of the three paintings in question appear in greater detail in the joint judgment and that of the trial judge.
Two of the paintings “Italian Crucifix” and “Hare in Trap” were sent in (now) somewhat controversial circumstances to be exhibited in Australia in 1975 but entirely pursuant to an arrangement entered into by Cynthia Nolan to which Sidney Nolan was not a party. The facts relating to the exhibiting of these paintings in Australia appear elsewhere, but at the end of 1976 and before Cynthia Nolan’s death it is clear that each had been returned to London, as the learned judge found. It seems that at that time at least the painting “Hare in Trap” was hanging on the wall of the Putney house of Cynthia Nolan which was their matrimonial home until her death. The other painting “Royal Hotel” seems to have left England only for the purpose of an exhibition in Sweden in 1976 but had been returned to England well before the end of that year. It is not entirely clear where either that painting or “Italian Crucifix” were at the time of Cynthia Nolan’s death but, apart from the fact that they may well have been in the Putney house, there was no evidence that they were kept separately from other paintings still owned by Sidney Nolan.
Cynthia Nolan committed suicide on 24 November 1976 shortly after she had sold the Putney house. Little more than six weeks later, on 12 January 1977, probate was granted of Cynthia’s English will to the named executors and there seems no dispute but that the three paintings, if they were owned by Cynthia, would have passed subject to that will.
Because of the sale of the Putney house it was necessary to move all the paintings kept there to other sites. The appellant, Sidney Nolan and Mr Danzinger Miles, with possibly others, assisted in moving the paintings to other places. At the time Sidney Nolan had another studio in Fulham but no other residence to which he could move. He went first of all at some uncertain date to stay with the first respondent at her house at “The Ruthland” in Herefordshire. Not long after that Sidney Nolan acquired a flat at Whitehall Court, London, although it may have been acquired before the sale of the Putney House. Shortly after the visit to Herefordshire Sidney Nolan and the first respondent began to reside together in the flat at Whitehall Court.
What precisely was done with the paintings in the few months after the death of Cynthia Nolan is not entirely clear. It seems that in due course “Hare in Trap” was hung in the living room at Whitehall Court. Likewise at some stage “Royal Hotel” was hung at The Ruthland. So far as the evidence goes, “Italian Crucifix” was for the most part in storage after the time the first respondent and Sidney Nolan started living together. The three paintings were sent for exhibitions at various places but not before the year 1978.
As to any form of identification of ownership of each of the relevant paintings, it seems that there was no system employed by either Sidney or Cynthia Nolan, by way of catalogue or otherwise, of which any evidence was given at the trial. Nor was there evidence of any direct statements by them on the subject, whether by Sidney Nolan or Cynthia Nolan, except that the latter at one time referred to a painting called “Italian Crucifix” as if she owned it, but there was unfortunately a second painting with that name of which she was undoubtedly the owner.
As to any acts of ownership after 26 November 1976[4], again there was negligible evidence apart from what I have already set out. In practical terms each of the paintings was in Sidney Nolan’s custody or control (whether sole or joint) before that date inasmuch as it seems likely that they were in the Putney house which they jointly occupied, albeit that Cynthia Nolan owned the premises. Thereafter, by reason of the impending transfer of possession pursuant to the sale, the paintings had to be moved but, apart from saying that in general terms they were under Sidney Nolan’s control, there was no evidence of any act by him which asserted his property in them in the weeks which had followed thereafter. At most it could be said that the paintings were moved for safekeeping and thereby remained in Sidney Nolan’s custody or control. To the extent that there was any apparent assertion of any ownership rights by Sidney Nolan, that came first when the paintings “Royal Hotel” and “Hare in Trap” were placed on the walls of the premises which the first respondent and Sidney Nolan then occupied, but it is by no means clear when that happened and it is indeed highly unlikely that it occurred before probate was taken out by the executors of Cynthia Nolan’s English will barely six weeks after her death. Any more obvious assertion of ownership rights by Sidney Nolan’s attributing ownership to himself in the several exhibitions which followed, which included the exhibiting also of “Italian Crucifix”, did not occur until 1978 or 1979 at the earliest. Consequently, if any of the three paintings was owned by the estate of Cynthia Nolan, there seems to have been no act of conversion until, in two of the cases, they were hung on the walls of the two premises occupied by Sidney Nolan and in the case of “Italian Crucifix”, until it was exhibited. There can be no doubt, however, as counsel for the respondents conceded at trial, that those would have been acts of conversion if, but only if, the paintings had been owned by Cynthia Nolan.
[4]I believe I have set out all the available evidence, other than irrelevancies, adduced on this issue.
As I have earlier stated, I accept the conclusions stated in the joint judgment as to the many arguments put forward in support of the appellant’s case in relation to the ownership of each of the three paintings and to the questions of evidence which remained alive on this appeal. I reiterate that, although I agree that the question of ownership was not in the end satisfactorily dealt with by the learned trial judge, despite her very detailed and careful reasoning on many issues, the materials are not such as to justify this Court’s concluding that the paintings had been given to the appellant’s mother and in the course of the appeal both parties accepted that the matter would otherwise have to be sent back for further trial if a conclusion in favour of the appellant were reached. None of the other matters raised in the course of the appeal, except the limitations issue, are in the circumstances of any consequence. Although it would have been necessary to say more as to the various rulings on evidence and the way in which they might have been approached were there a need for a second trial, these proceedings can, nevertheless, be resolved by a consideration of the second principal point raised on the appeal, being the issue whether the appellant was barred by the operation of any statute of limitation at the trial. The sections pleaded were s.3 of the Limitation Act 1980 (U.K.) and s.6 of the Limitation of Actions Act 1958 of this State but, on the appeal, there was no concentration on those sections and it will appear below that s.22 of each Act is the preferable section to apply if s.21 does not take the appellant’s claims outside the Act altogether. I should add that in the course of the appeal the parties appeared to concede that by reason of recent High Court authority the acts of alleged conversion had to be dealt with according to English law and that consequently the provisions of the Limitation Act 1980 (U.K.) were the relevant provisions, although the similarity of the provisions makes the point of little consequence.
II APPLICATION OF LIMITATION STATUTES
Whether or not the appellant has made out a case that her mother was given any or all of the three paintings by Sidney Nolan and that he wrongly obtained them in about 1976-1977, the first respondent relies on the fact that the relevant limitation period had expired when the appellant began the present proceedings. There seems to be no dispute, but for one significant element, that the period had expired (whether one looks at the English or Australian legislation), since about 25 years had passed since Cynthia Nolan’s death and the alleged conversion by the time this proceeding was commenced and no relevant claim had been made for the paintings in that time. The facts relating to this aspect of the matter have already been sufficiently summarised.
The issue, therefore, is whether any of the claims in conversion survived because the subject matter of those claims was trust property to which, by virtue of s.21(1)(b) of the Limitation Act 1980 (U.K.) (which is the same as s.21(1)(b) of the Victorian Limitation of Actions Act 1958), no limitation period applies. Of course, no formal trust applied to the property, other than that which might have applied by reason of Cynthia Nolan’s will trusts, and the claim is not against the trustees of those trusts – rather the claim in the proceeding should be seen to have been made on their behalf. However, the appellant asserts that Sidney Nolan was the constructive trustee of each of the three paintings, so that in his hands it is alleged that they were held on trust and so that his estate and Mary Nolan as the beneficiary taking under it should be held responsible.
A doubt whether a constructive trust was intended to be comprehended by s.21 (or its predecessors) has been exacerbated by the fact that the definition of “trustee” in the Limitation Acts of the U.K. was effectuated indirectly, as it was in Victoria[5], by an amendment to the Trustee Act in the late nineteenth century, now appearing in s.68(17) of the Trustee Act 1925 (U.K.), which was adopted and made applicable by s.38(1) of the Limitation Act and which states that “the expressions ‘trust’ and ‘trustee’ extend to implied and constructive trusts”. The real question, however, is whether any of the paintings was impressed with a constructive trust when held by Sidney Nolan.
[5]See the definition in s.3(1) of the Limitation of Actions Act, which incorporates the definition in s.3(1) of the Trustee Act 1958.
The appellant’s claim for such a trust originally had a number of bases, but, by reason of certain concessions, it may be said now to rest only on one or possibly two bases, namely, that Sidney Nolan, by virtue of his acts in relation to the paintings, became an executor de son tort and thereby, or independently, a trustee de son tort.
The main vice of the appellant’s reply to the limitation defence is that it assumes that Sidney Nolan took on the role of either executor de son tort or trustee de son tort without purporting to act as such, in other words, without having performed acts which can be construed as asserting a right or power to act as either executor or trustee. The most that can be said to have occurred is that he reduced into his own possession the three paintings without acknowledging that they formed part of Cynthia Nolan’s estate, if that were the case, but the terms of s.28 of the Administration of Estates Act (U.K.) will have to be examined.
(a) Whether Sidney Nolan acted as an executor de son tort
So far as claims under the general law that a person is an executor de son tort are concerned, it may be conceded that in certain cases the mere assertion of rights of ownership or possession over chattels or land has apparently been taken as sufficient to amount to the exercise of control as an executor. Likewise it has been said that asserting rights over even small and inexpensive chattels can amount to the relevant exercise of control. Careful consideration will show, however, that it is not the value of the property affected which is important, but the inferences which are properly to be drawn from the act in question. In the case of executorship it is the assertion of a power to act on behalf of the estate which has been significant, for the object of the rule had nothing to do with the law of trusts but was designed primarily so that creditors of the estate of a deceased person could find somebody who would be responsible for the deceased’s debts. As is said in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (18th & 6th eds respectively, 2000)[6]:
“Where a person does an act characteristic of an executor and is not a complete stranger, the natural inference to be drawn is that he is named as executor in a will which he has not yet proved; and third parties should be able to rely on this assumption.”
The other principle referred to[7] by the learned authors there expressed is that “no-one should be permitted, by refraining from taking out probate or administration, to obtain possession of the deceased’s property free from his liabilities”. In many of the cases, essentially those decided before probate jurisdiction was taken from the ecclesiastical courts, the estate was relatively small and no attempt had been made by any person to obtain probate or letters of administration. In the absence of such an application and grant, dealing with the deceased’s property might fairly lead creditors to infer that the intermeddler had indeed obtained an appropriate grant, a matter which was, until jurisdiction was given to non-ecclesiastical courts, often difficult to establish because of the large number of diocesan courts which might exercise jurisdiction: see F.C. Hutley, “The Executor De Son Tort in the Law of New South Wales”.[8]
[6]Page 98 para.8-17.
[7]Ibid. Subject to a minor addition, each of these passages (taken from the 17th ed.) was quoted with approval by Dillon, L.J. on behalf of the C.A. in Pollard v. Jackson (1993) 67 P.& C.R. 327 at 330.
[8](1952) 25 A.L.J. 716. It should be noted, however, that in N.S.W. there is (and was in 1952) no section equivalent to s.33 of the Administration and Probate Act 1958 (s.28 of the U.K. Act). See also Holdsworth’s History of English Law (5th ed.) Vol. 3 pp.571-572.
The essence of a claim against such a person was, and I believe still is (subject to s.28 of the Administration of Estates Act), that the person has purported to act as an executor or administrator of a deceased’s estate, thereby leading others to believe that he or she has the power to deal with the estate and its assets. As is said in Bacon’s Abridgment[9], even apparently slight acts “are the only indicia by which creditors can know against whom to bring their actions”. Any action had necessarily to be brought against such a person as ostensible personal representative of the relevant estate who was then liable, but only to the extent of the assets with which he or she had purported to deal. As the authorities demonstrate, even minor acts of dealing with property interests were sufficient to constitute a person an executor de son tort, but only if it could be inferred that the person was purporting to act in that role. Some of the language of the earlier cases and textbooks was not always entirely clear in this respect, largely, I believe, because it was well known that liability would attach only if the person could be seen as holding himself out in one way or another as an executor or administrator. Careful examination of those authorities, nevertheless, emphasises the necessary connection, howsoever slight the dealing with actual property might be in the first instance. Moreover the authorities made clear that if there had been in fact a grant of probate or letters of administration, then a mere attempt later to obtain the property of a deceased and even purporting to act as executor or administrator, would not ordinarily clothe that person with the responsibilities of an executor de son tort, because there was then a person who might be sued properly in that role as liable for the debts and other liabilities of the estate. Likewise it was seen that that person might sue in the ordinary way for recovery of any property over which some other person might seek to exercise control.
[9]7th ed. (1832) tit. “Executors and Administrators” Vol. III pp.443-444.
The latter but important qualification has appeared from the earliest times, although largely referred to only in textbooks of authority. One may first take Godolphin’s The Orphans Legacy[10]:
[10]See Part II Chapter VIII s.1 p.90 (2nd ed. 1677).
“But if one who neither is Executor nor Administrator shall use the deceased’s Goods, or possess himself thereof, this is sufficient Administration to charge him as Executor in his own wrong, whereby the deceased’s Creditors may recover their Debts against him, if there be no other Executor or Administrator lawfully constituted, who have proved the Will or Administred. Yea, though there be a lawful Executor, yet if any other take these Goods, claiming them as Executor, does pay or receive Debts, or pay Legacies, and intermeddle as an executor: In this Case, because of such express claiming to be Executor, he may be charged as Executor in his own wrong, although there be another Executor of right.”
Significantly Godolphin continues a little later[11]:
“When the Will is proved, or Administration granted, and others then intermeddle with the Goods, this shall not make those others Executors in their own wrong by construction of Law, because there is then another Executor of right, against whom the Creditors may bring their Action; and such wrongful intermeddlers with the Goods when there is another Executor of right, are liable to be sued by him as Trespassers.”
This passage was cited with approval by Lush, J. in Peters v. Leeder[12] where his Lordship also said:
“An executor de son tort is ‘one who takes upon himself the office by intrusion, not being so authorised by the deceased, nor for want of such constitution substituted by the court to administer’ (see Williams on Executors Cap. 5).
The definition implies a wrongful intermeddling with the assets, a dealing with them in such a way as denotes a usurpation of the functions of an executor, an assumption of authority which none but an executor or administrator can lawfully exercise. It is obvious that it is not every intermeddling with the goods of the deceased which is wrongful.”
[11]Part II Chap. VII s.3 p.93. And see Read’s Case (1604) 5 Co. Rep. 33b, at 34a; 77 E.R. 103 at 104 (Proposition 2).
[12](1878) 47 L.J.Q.B. 573 at 574.
His Lordship’s reference to Williams on Executors serves to remind one that what the learned author said at that time is not precisely reproduced in the merged work of Williams, Mortimer and Sunnocks, to which I have already referred. The appellant sought to rely on observations made to the effect that “a very slight circumstance [scil. act] of intermeddling with the goods of the deceased will make a person executor de son tort”.[13] But the relevant paragraph continued[14]:
“So in one case the taking a bible, and in another a bedstead, were held sufficient, inasmuch as they were the indicia of the person so interfering being the representative of the deceased.” (Emphasis added.)
So, although slight acts may[15] suffice to make a person an executor de son tort, it is essentially the inference which may be drawn from the act performed which is critical, as the latter quotation makes clear. It also serves to explain why, once probate or letters of administration have been taken out, the courts in general terms take a different view of the proper inference to be drawn from the performing of such acts. If there be an executor or administrator, then ordinarily an inference could not fairly be drawn from those circumstances, at least if that fact were known, and certainly if the person taking the step did not purport to act as an executor or administrator. If a person wrongfully asserts proprietary rights thereafter over the deceased’s assets, there is by then a personal representative fully capable of taking proceedings.
[13]Williams, 7th ed. (1873) at p.257 and 14th ed. at p.28.
[14]Ibid. The emphasised words are taken literally (with only a change of tense) from Swinburne: A Brief Treatise of Testaments and Last Wills (first published 1590-1591) 5th ed., 1803, Vol 2 at p.869. See also Stamford’s Case (1574) 2 Leonard 223 at 223-224; 74 E.R. 496 at 497, per Manwood, J.: “He who takes the goods of the dead, shall not be charged as executor of his own wrong, unless he doth something as executor …”.
[15]The earlier use by Williams of “will” was thus too emphatic.
The significance of this analysis in the present case is that there is no evidence of any acts taken by or on behalf of Sidney Nolan before the grant of probate on 12 January 1977 which could fairly be viewed as the basis from which an inference might be drawn that he was purporting to assert some right as executor (or trustee) over his deceased wife’s estate. Possibly in modern times such an inference is harder to draw, inasmuch as the nature of grants of representation and the requirements for grants may now be better known and understood, so that acts performed in recent times may not always lead to the necessary inference. However, in the present case the most that can be said is that, in clearing out the premises in which they had lived together as man and wife, Nolan took into his custody the three paintings, albeit that the evidence as to what he did with at least two of them is problematic. For present purposes one may assume that he did obtain custody or possession of the three paintings, but in my opinion that is not enough. There must be evidence that the act in question involved an assertion of executorial power, whether it be over chattels or land, and clearly there was no such act of which there is evidence, at least to my knowledge. The acts performed later, in 1978 and subsequently, by which the paintings were exhibited under his own name may be quite a different matter, but by then a grant of probate had been made by the English court and, in accordance with the authorities to which I have referred, no such inference against Sidney Nolan could then be drawn, nor on a proper understanding of the rule would there be any purpose in doing so, as there were by then properly appointed executors who had full rights to administer the estate. It was they who then had the right to sue in detinue or conversion. For these reasons I would not accept that any of the acts performed by Sidney Nolan, so far as they are known to the Court, amounted to acts of a kind which would have constituted him an executor de son tort.
The conclusion just reached would be consistent with principle and would give effect to the law as generally understood, at least before 1925 (and 1922 in Victoria). It must be tempered nevertheless by a consideration of the operation of s.28 of the Administration of Estates Act 1925 (U.K.), as presently expressed, a section which is largely identical to s.33 of the Administration and Probate Act 1958. In substance the former section, which will have to be discussed in some detail below, states that if “any person … obtains receives or holds … any part of the estate of a deceased person … he shall be charged as executor in his own wrong to the extent of the estate received or coming into his hands …” (emphasis added). The section was taken with some expansions and variations in 1925 (in the U.K.)[16]from the substantive provisions of An Act Against Fraudulent Administration of Intestates’ Goods 1601[17]. But the Elizabethan section from its recitals was seen to be directed at a specific problem, to which reference will be made below, and not seen by any writer, until s.28 was passed, as affecting the general law on the subject. Since its passing in its amended form a number of decisions have been given which must be examined also.
[16]The Victorian version was first passed in almost identical terms in 1922 (see below para.[41]).
[17]43 Eliz. I cap. 8 s.II.
(b) Whether Sidney Nolan acted as a trustee de son tort
It is desirable, however, first to deal with the alternative argument based on the characterisation of Sidney Nolan’s acts as those of a trustee de son tort and thus of a constructive trustee. The argument, as I would understand it, depended upon the three paintings being treated as trust property by reason of their being subject to the trusts in Cynthia Nolan’s will and thus it was said that Sidney Nolan, having come into custody or possession of the paintings, was holding the trust property wrongfully, thereby leading to his being properly described as a trustee de son tort.
In my opinion the argument fails for one simple and good reason, similar in many respects to that which might apply in characterising him as an executor de son tort, namely, that in this respect there is no evidence that Sidney Nolan purported to act as a trustee in dealing with the three paintings or did any act from which such an inference might be drawn. Whatever doubts there may be about the application of the need for the defendant to be shown as acting as if he were executor, there can be no such doubt if the basis of liability depends on his being a trustee de son tort. The law relating to constructive trusts is one which has been by no means easy to follow over the last century and a half and it may be accepted that nowadays there are many more relationships which are said to give rise to a constructive trust. There has always been some doubt as to where the trustee de son tort fits into this picture and almost every writer, and most judges, have expressed this uncertainty. To take but one example, which expresses a combined view of both groups, the trustee de son tort is described as one of a number of “borderline categories” of constructive trustee by Meagher, J.A. and Gummow, J. in their 6th ed. of Jacobs’ Law of Trusts in Australia[18].
[18]At p.307 para.1303.
Those learned authors cite a passage from one of the earlier leading cases on the subject, namely Mara v. Browne[19] where Smith, L.J. said:
[19][1896] 1 Ch. 199.
“What constitutes a trustee de son tort? It appears to me that, if one, not being a trustee and not having authority from a trustee, takes upon himself to intermeddle with trust matters or to do acts characteristic of the office of trustee, he may thereby make himself what is called in law a trustee of his own wrong, that is, a trustee de son tort, or as it is also termed, a constructive trustee.”[20]
That passage picks up and explains in brief but comprehensive terms what Lord Selborne, L.C. adverted to in the well-known passage in Barnes v. Addy[21] where he said that “responsibility [akin to that of a trustee] may no doubt be extended in equity to others who are not properly trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee …”. The latter passage is of particular importance in that it was cited with approval in the only recent decision of the High Court to comment on the characteristics of trustees de son tort, albeit only indirectly: see Consul Development Pty. Ltd. v. D.P.C. Estates Pty. Ltd.[22]. In that case the passage was cited in full by Gibbs, J.[23] and in part by Stephen, J.[24] (with whom Barwick, C.J. concurred) and the principle was adopted by Stephen, J.[25] in these terms:
“That proof of knowledge is essential is not in doubt: Consul has not intermeddled with any trust property so as to make itself a trustee de son tort and without proof of knowledge no remedy will lie against it for participation in the dishonest scheme of the fiduciary, Gray. The applicable principle is that enunciated by Lord Selborne in Barnes v. Addy. Strangers to a trust may have extended to them the responsibility imposed by equity upon trustees if they make themselves trustees de son tort or are actually participating in any fraudulent conduct of the trustee …”.
A similar distinction was drawn in Selangor United Rubber Estates Ltd. v. Cradock (No. 3)[26], a decision likewise cited with apparent approval in Consul Estates but not one which has gone entirely uncriticised over the years, though not in respect of this issue.[27] Finally one may cite a very recent statement by Lord Millett (with whom Lords Hutton and Hobhouse concurred on this issue) in the House of Lords in Dubai Aluminium Co. Ltd. v. Salaam[28] where his Lordship described[29] a trustee de son tort as “a person who, though not appointed to be a trustee, nevertheless takes it upon himself to act as such and to discharge the duties of a trustee on behalf of others”.
[20]At 209.
[21][1874] L.R. 9 Ch. App. 244 at 251.
[22](1975) 132 C.L.R. 373.
[23]At 395.
[24]At 408.
[25]Ibid.
[26][1968] 1 W.L.R. 1555 at 1578-1579 per Ungoed-Thomas, J.
[27]It was also cited with approval by the Canadian Supreme Court in Valliant v. Air Canada [1993] 3 S.C.R. 787 at 809.
[28][2003] 2 A.C. 366.
[29]At 403. His Lordship also put forward (ibid) an arguably unfashionable terminological change in that he suggested: “Substituting dog Latin for bastard French, we would do better today to describe such persons as de facto trustees”.
The direct connection between trustees de son tort and executors de son tort is harder to trace but not difficult to infer. The executor de son tort can be traced back to at least the thirteenth century[30], but there seems no reason to doubt that the institution and the problems which created it went back for some time before that.[31] On the other hand the term “trustee de son tort” seems not to have been used until the mid-nineteenth century, indeed it appears first to have been devised by Sir John Romilly, M.R. in Hope v. Liddell (No. 1)[32], cited by Charles Harpum in his article: “The Stranger as Constructive Trustee”[33].
[30]See Holdsworth’s History of English Law, Vol. 3 at p.571. The first reported case where the term is used seems to be Sands v. Peckham (1489) Y.B. 4 Hen. 7 fo. 13 pl.12, cited in 1 Plowd. at 272, 75 E.R. 432.
[31]See the article by Hutley, cited earlier; see also Helmholz, Oxford History of the Laws of England, Vol. 1 (2004) pp.409-411 and Holdsworth, vol. 3, pp.556-572.
[32](1856) 21 Beav. 183 at 205.
[33](1986) (Part 1) 102 L.Q.R. 114 at p.127; (Part 2) 102 L.Q.R. 267.
The subject of constructive trusts has over the years become contentious and differences in analysis have tended to confuse rather than inform. What has been described so far, however, supports the conclusion that trustees de son tort intend, by their actions, to assume the role of trustees and, at least in the first place, to take control of trust property for the benefit of others rather than for themselves. If the word “intermeddle” be used, it tends to confuse the issue to the extent that it suggests wrongful intermeddling, which frequently gives rise to cases where the question of liability is in issue, rather than circumstances in which the original intention is merely to act in the role of trustee in relation to certain property. These conclusions are consistent with what is said in Jacobs on Trusts and in Ford and Lee’s Principles of the Law of Trusts[34], though it must be said that some differences appear in articles such as those by J.D. Heydon: “Recent Developments In Constructive Trusts”[35] and R.P. Austin: “Constructive Trusts”[36]. Each article is critical of Ungoed-Thomas, J. in Selangor, but the latter is more cautious in his criticism. See also Cope:
Constructive Trusts[37] and Ong: Trusts Law in Australia[38]. On this assumption I can see no evidence, even accepting the appellant’s factual contentions, that Sidney Nolan purported to act as trustee of the paintings or any other property and thus cannot be characterised as a trustee de son tort for the purpose of the appellant’s arguments. Nor is it necessary for the time being to examine those authorities which would seem to characterise the trustee de son tort as an “express trustee”. See e.g. Soar v. Ashwell[39], as discussed in Taylor v. Davies[40]. See also Cohen v. Cohen[41]. Those cases are often seen as having been largely influenced by the limitation statutes applicable at the time, although that may be an over-simplification: cf. Paragon Finance plc v. D.B. Thakerar & Co.[42] per Millett, L.J.[34]See 3rd revised ed. para.[22910].
[35](1977) 51 A.L.J. 635.
[36]In Essays in Equity (ed. Finn) (1985) at p.196 ff.
[37](1992) at 370 ff.
[38]2nd ed., (2003) at pp.458-459: a brief reference in an otherwise detailed chapter on constructive trusts (pp.448-554).
[39][1893] 2 Q.B. 390, esp. at 394 per Lord Esher, M.R., at 399 per Bowen, L.J. and at 406 per Kay, L.J.
[40][1920] A.C. 636, esp. at 651-653 per Lord Cave (for the Board).
[41](1929) 42 C.L.R. 91 at 100 per Dixon, J.
[42][1999] 1 All E.R. 400 (C.A.) at 413.
(c) Statutory provisions relating to executors de son tort
It is thus necessary to return to the question of liability as an executor de son tort and the statutory provision presently affecting that liability. The relevant statutory provision was s.28 of the Administration of Estates Act 1925 (U.K.) which reads:
“If any person, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any real or personal estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the real and personal estate received or coming to his hands, or the debt or liability released, after deducting –
(a)any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and
(b)any payment made by him which might properly be made by a person or representative.” (Emphasis added.)
The equivalent Victorian section is s.33(1) of the Administration & Probate Act 1958, which no longer contains paragraphs (a) and (b), although the substance of paragraph (b) is retained in the Victorian section’s concluding words.[43]
[43]Paragraph (a) was removed in 1933 by Act No. 4191 s.2. In the Victorian Act the words “any real or personal estate” are replaced by the expression “the estate or any part of the estate” but this seems largely to reflect the definition of the word “estate” contained in s.5(1) of the Victorian Act where it is said to mean “real and personal estate”.
On the face of the language adopted by each statute any obtaining, receiving or holding of any part of a deceased person’s estate will permit the charging of the perpetrator as an executor de son tort if the obtaining, receiving or holding occurs “without full valuable consideration”, whether or not there has been or is intended to be a “defrauding of creditors”, that is to say, the opening words of the section are alternative bases for holding a person liable as an executor de son tort. The breadth of that basis of liability is remarkable inasmuch as it is inconsistent with what has been suggested was the understanding as to the imposition of liability under the general law and, for that matter, inconsistent with an understanding of the derivative liability, that of trustees de son tort. The section as so interpreted would suggest that any casual thief or any person innocently guilty of conversion of a deceased’s assets will be held liable regardless of any intent to act or purported conduct as an executor.
The reason for this may be said to lie in the deliberate expansion of the concept by the legislature, as long ago as the reign of Elizabeth I by Act 43 Eliz. Cap. 8, to which I have earlier referred. There is no doubt from its preamble that that Act was introduced to overcome a particular problem, prevalent at the time, whereby potential next-of-kin allowed strangers to hold personal estate in order to cheat and defraud creditors or other persons entitled to the estate. The provision was originally, in 1601, confined to the obtaining, receiving or having of “any goods or debts of any person dying intestate” and, although liability appeared to be predicated upon either of the two bases described in relation to s.28, it was seen, or at least thought, that both the fraud and the alternate liability arising from a lack of valuable consideration were tied to the preamble.
The operative part of the 1601 statute provided[44], in substance:
“That every person and persons that hereafter shall obtain, receive and have any goods or debts of any person dying intestate … upon any fraud, as is aforesaid, or without such valuable consideration as shall amount to the value of the same goods or debts … shall be charged and chargeable as executor of his own wrong … so far only as such goods and debts coming to his hands … will satisfy …” (emphasis added).
It seems that the qualification “as is aforesaid” was treated as placing limits on what was, in any event, a relatively limited provision. What was “aforesaid” was the elaborate preamble expressed in substance in these terms:
“FORASMUCH as it is often put in ure [i.e. put into practice], to the defrauding of creditors, that such persons as are to have the administration of the goods of others dying intestate committed unto them, if they require it, will not accept the same, but suffer or procure the administration to be granted to some stranger of mean estate, and not of kin to the intestate, from whom themselves or others by their means do take deeds of gifts and authorities by letter of attorney, whereby they obtain the state of the intestate into their hands, and yet stand not subject to pay any debts owing by the same intestate, and so the creditors for lack of knowledge of the place of habitation of the administrator, cannot arrest him nor sue him; and … for lack of ability in him to satisfy of his own goods, the value of that he had conveyed away of the intestate’s goods … the creditors cannot have or recover their just and due debts:”
[44]S.II
The early text-writers were clear in their approach to this statute, seeing it as expanding the existing rules in only a limited way, essentially to bring perpetrators of deliberate fraud relating to personalty within the category of executors de son tort, in particular those who procured others to become administrators in order to prefer their claims. For example, Swinburne on Testaments, after giving a very free precis of the section, turned immediately[45] in the same footnote to examples of dealing as an executor de son tort and in particular to mere possession of goods “without doing any act as an executor”. Of this he commented that Dyer in his report of Floyer v. Southcote (otherwise known as Fleier and White v. Southcot)[46] considered that “bare possession of the goods made the person executor de son tort, because by that means the creditors had notice whom they might sue”[47], but that Henry Rolle in his Abridgment of the Common Law[48] said of the case that “it did not, for if an action be brought against him as executor de son tort, he might discharge himself by special pleading, showing how and in what manner he intermeddled” (i.e., one may assume, properly). The case clearly preceded the statute, but Swinburne did not perceive that there had been any real change when he described the case in the footnote. In Wentworth[49] the section is also summarised but in terms whereby the author suggests that it was entirely consistent with existing law: “Here we have a touch of all the parts precedent, or at least three of them”, the three relevant parts being the creation of an executor de son tort “though intermeddling under the title of an administrator”, secondly, the limit to the charge incurred being the limit in damages to the amount or value of goods taken into possession and, thirdly, an allowance of debts owing to the executor, which the author concedes is more than was permitted under the general law. The statute is briefly referred to in Godolphin[50] but in terms which suggest that the only change was that persons properly appointed administrators may nevertheless be treated as executors de son tort in the circumstances described in the preamble. Finally in Bacon’s Abridgment, the first edition of which was published well over a hundred years later, the same cautious approach appears to have been taken to the section.[51] The author notes that “notwithstanding this”, there were a number of acts which a stranger might do “without running the hazard” of making that person an executor de son tort, such as feeding cattle, taking an inventory of the estate and paying debts, which were “esteemed offices of kindness and charity”.
[45]5th ed. (1803) Vol. 2 at pp.867-868.
[46]Reported in 73 E.R. 231 under the latter name in its reprint of the report at (1555) 1 Dyer 105b.
[47]Swinburne’s summary seems very broad (again), for the report in Dyer simply says that a question was resolved, presumably in favour of the plaintiff, when a doubt was raised whether “if a man who is not executor or administrator seize the goods of the testator without doing any other act as executor, as by paying or receiving debts or legacies, this seizure alone be not an administration in law, as executor de son tort demesne?”
[48]3rd ed. Vol. 1 p.918.
[49]14th ed. pp.335-336.
[50]At pp.90-93.
[51]7th ed. at pp.444-445.
Little has been said over the years as to the reason why the statutory provision in the 1601 Act comprehended not merely fraud but also, on the face of it, the obtaining of goods without valuable consideration. The Court was not taken to any authority, nor have I been able to find any commentary or any decision which has sought to explain that expansion of liability, if it can be truly characterised as an expansion. So far as I am able to ascertain, the general views as to executors de son tort expressed in the early text books were largely reproduced in later works such as, in particular, Williams on Executors.
That difficulty was compounded when in 1925 the section was amended to take its modern form as part of significant changes made to the laws relating to property and succession passed in that year in England. In a work devoted to those changes by G.H. Devonshire, The New Property Code (1927), the amended section is simply noted as a substitute for 43 Elizabeth Chapter 8.[52] The only additional comment appeared in a footnote to the effect that most of the amendments were consequent upon the extension to real estate of laws governing the devolution to personal representatives of chattels real, which were treated as personalty.
[52]See pp.424-425. The work was published as a (large) supplement to Williams on Vendor and Purchaser.
The significance of the change in the 1925 Act was that whereas the statute previously applied only to intestates’ estates and to the obtaining of chattels and debts, not surprisingly, having regard to the functions of executors and administrators in 1601, it was now seen to be appropriate to make similar provision for testators’ estates and to cover the obtaining of any kind of property, whether real or personal estate. Perhaps no-one saw that those changes were significant, but the fact that the preamble to the earlier Act was entirely removed was overlooked, so that the original stated object of the provision was lost by its being incorporated merely as a section in a more general Act on executors and administrators. Nevertheless it is remarkable that it attracted so little attention, the only explanation being that the practical effects of the provision were thought minimal having regard to the infrequency at the time, so it would seem, of persons being sued as executors de son tort. This may be supported by the comments in 1974 of Frank Hinks in an article “Executors De Son Tort and the Limitation of Actions”[53], an article upon which considerable reliance was placed by Aldous, L.J. in James v. Williams[54], upon which the appellant in turn relied and to which it will be necessary to refer below. Mr Hinks in his article observed[55] that the practice of failing to take out representation while allowing land to be held by a member of the family or even a stranger “appears to have been common enough amongst nineteenth century Irish farmsteaders, but has been rare, although not unheard of, in twentieth century England”. Otherwise, however, the article concentrated on the Limitation Act rather than on s.28 and its apparent expansion from the Elizabethan statute.
[53](1974) 38 Conv. (N.S.) 176.
[54][2000] Ch. 30.
[55]At p.177.
Perhaps it may have been preferable to see s.28 as still a remedial section directed to a particular set of circumstances common in the sixteenth century, but that is not the form of the present s.28. In the absence of any authority suggesting that it should be read down, it is hard to see how it properly can be restricted having regard to the apparent simplicity of its language. There are two apparently alternative conditions to its operation, the first being an assumed purpose of the de facto administrator, namely “the defrauding of creditors”, while the second is more generally the obtaining, receiving or holding of property “without valuable consideration”. Intermeddling may, of course, have at least in part a benevolent intent, but there is no reason to assume, but for the history of the rule, that intermeddling would not also include the mere taking or misuse of property by strangers. Whereas the general law rule, as best it was understood, looked to the assuming of the responsibilities of a personal representative or at least the purporting to act as one, and thus to act on behalf of others such as the next-of-kin, the new section contains no such restriction, nor should that be read as implicit having regard to the breadth of its language. Whatever be its history, there is no ambiguity in the language adopted by the U.K. Parliament and indeed, insofar as there were changes from the former Act of 1601, those aspects of the section (“as is aforesaid”) which looked to a specific purpose seem deliberately to have been omitted. Moreover the new section arguably has a benevolent aspect so far as executors de son tort are concerned, namely that at least the English section gave a right in all cases to deduct any debt owed by the deceased.
There was, of course, a more general purpose to the creation of the role of the executor de son tort, namely, the need to protect creditors, in particular, from the risk that the assets of a deceased would be disbursed into unauthorised hands so that creditors might not be able to recover their rightful debts. That is why the section speaks of such a person as being “charged as executor in his own wrong to the extent of the real and personal estate received or coming into his hands …”. That only reflects the fact that an executor cannot ordinarily be sued, short of proof of a true devastavit, beyond the extent of the property held by that executor. If another person purported to act and controlled part of the deceased’s property, then it was only fair, so it might be thought, that that person should likewise be liable also to the extent that property came into his or her hands as executor de son tort. But merely because ordinarily the benefit was seen as protecting the general creditors does not have the consequence that the benefit cannot also be seen as protecting the next-of-kin or the beneficiaries, and in giving each a right to recover the property directly from any person who has misappropriated it or otherwise obtained it without consideration. In the present case the executors of Mrs Nolan’s estate could not ordinarily have been held responsible beyond the assets that came into their hands and, if assets came into the hands of a third person such as Sidney Nolan without consideration, assuming that to be the case, then there would seem to be no reason why that person should not also be liable to the extent of the assets so obtained, more especially as they were assets of considerable value. Whether resulting from fraud or innocent conversion, there would seem no reason to distinguish between the persons into whose hands those assets fell.
It would only be if one could read the first part of the section together, as a single condition, as it were, that this interpretation should not be adopted, subject to a consideration of the authorities such as they are. I do not think it clear that the words “to the defrauding of creditors or without valuable consideration …” was intended to combine both concepts into a single, “hendiadystic”, concept, as if notionally substituting “and” for “or”. In the absence of anything further to point to that conclusion, I would not adopt it. As a result, if Sidney Nolan had wrongly obtained the paintings in the manner alleged, even if taking them only “without valuable consideration”, he would have been an executor de son tort from that time.
It may be added that, although it seems that the English section is the appropriate one to consider in the circumstances, the Victorian section (s.33(1)) is almost the same (except for the later exclusion of paragraph (a)), although by chance it came into effect in this State in 1923 as part of the Imperial Acts Application Act 1922[56]. The side notes to the relevant section pointed to a bill in the United Kingdom Parliament in 1893 which apparently lapsed, but I have been unable to find out why and in what circumstances that bill was not passed. It was introduced as a “Bill to consolidate enactments relating to the administration of the estates of deceased persons”. In doing so Lord Herschall, L.C. said only that “it does not propose to amend the law; it is purely for the purpose of consolidation”.[57] But that is certainly not true of s.28 as passed in 1925, nor of the Victorian section.
(d)Whether an executor de son tort is a “trustee” within Limitation Act
[56]s.19. At that time the section was still confined to intestate’s estates.
[57]H. of L.R. 23 February 1893 Parl. Deb. 4th Ser. V. 9 Col.157-158.
It is by no means so obvious, however, that the next stage of the appellant’s argument should be accepted. It is to be remembered that, in order to succeed, she must show that s.21 of the Limitation Act (U.K.) applies so as to impose no limitation period because her claim is that of a “beneficiary under a trust”. The case can only satisfy that description if the rights she has against the first respondent (and the other respondents) in fact have arisen under a trust as defined for that purpose. The appellant asserts that she was such a beneficiary because a trust was created in her favour by Sidney Nolan’s act of converting the three paintings which it was said in turn flowed from the fact that he was thereby liable to be “charged as an executor in his own wrong”, under s.28 of the Administration of Estates Act.
It does not follow automatically, however, that an executor de son tort is a trustee or that the paintings here alleged to have been taken were or became trust property.[58] An expressly appointed executor is, by statute, a trustee, as are all duly appointed personal representatives. This follows first from the definition in s.38(1) of the Limitation Act 1980 (U.K.) which states that both trust and trustee “have the same meanings respectively as in the Trustee Act 1925” and secondly, from the definition contained in the latter Act (in s.68(17)) which states that the expressions “extend to implied and constructive trusts … and to the duties incident to the office of a personal representative, and ‘trustee’, where the context admits, includes a personal representative …”.[59] But executors de son tort are very special creatures of the law, as I have tried to demonstrate, for they take on that role for limited purposes largely directed to allowing specific remedies, especially for the benefit of creditors, although next-of-kin and beneficiaries are also intended to have rights. In my opinion, however, the remedies given by the general law and by the statute are primarily to identify and make chargeable persons who act or purport to act as personal representatives rather than to identify the property held or sought to be held by an executor de son tort as having specific characteristics. Indeed it may be thought to be obvious, almost a sine qua non, that the property obtained by such a person is already trust property inasmuch as under the section it is described as “any real or personal estate of a deceased person …”, and that person is likewise chargeable only “to the extent of the real and personal estate received or coming to his hands …”.
[58]See Lewin on Trusts 17th ed. at p.1367 para.42-61.
[59]Essentially the same chain of reasoning applies to the definitions of “trust” and “trustee” in the Victorian Limitation of Actions Act 1958 and the Trustee Act 1958, where the latter definition appears in s.3(1).
So one must start with the premise that what is in issue is trust property. After death a deceased’s property had to vest, at the relevant time, in either the executor or executors named in his or her will or, if the deceased died intestate, then it vested[60] in England in the “Probate Judge”, namely the President of the Family Division (formerly the President of the Probate, Divorce and Admiralty Division), or in Victoria in the Public Trustee, more recently in the State Trustees[61]. It is not necessary to examine the precise relationship on intestacy of the persons designated under either the Victorian or the English Act to the deceased’s property, for in the present case there was a will and the executors thereby had certain rights over Mrs Nolan’s property, albeit that full title to deal with those assets had to be confirmed by a grant of probate, as in fact occurred shortly after her death.
[60]See s.9 of the Administration of Estates Act 1925 (U.K.). Since 1994 it has vested in the Public Trustee (U.K.).
[61]See s.19 of the Administration & Probate Act.
So for the purposes of the present argument there can be no doubt that the property was trust property. Indeed one might surmise that the very reason for the form and substance of the principles formulated in relation to executors de son tort was that there were persons who were wrongly asserting authority to deal with assets which would now be called trust assets, although it must be remembered, from the history of the rules, that they were first devised well before lawyers or others spoke of trusts at all. It still does not follow that a person wrongly asserting such rights necessarily becomes a trustee. Certainly it cannot be claimed that such a person is an express trustee. At best the executor de son tort would be a constructive trustee, if that were appropriate. Where, according to the principles worked out before s.28 took its present form, those principles assumed that an executor de son tort would be purporting to act as a trustee on behalf of those interested in the estate, it would be only a short leap to say that that person acted as a constructive trustee, again if that were appropriate. Doubtless the executor de son tort is required to carry out his or her assumed functions in a manner akin to that required of trustees, but there are certain benefits and burdens which significantly differ the role of an executor de son tort from that of a trustee and even from that of a personal representative properly appointed. For brief and relatively modern summaries of those duties (and rights) see Williams, Mortimer and Sunnocks paras.8-16 - 8-36[62] and Geddes, Rowland and Studdert on Wills, Probate and Administration Law in New South Wales paras.40.16-40.31[63]. These show that the functions and duties of executors de son tort are more limited than those of personal representatives, though there are obvious similarities applied by analogy.
[62]18th and 6th eds. (2000), pp.97-107.
[63]1996 (based on Hastings and Weir: Probate Law and Practice), at pp.260-274. It should be noted, however, that there is in the New South Wales legislation no equivalent section to s.28 of the English Administration of Estates Act and this has led to a continuing doubt whether the principles apply to real property: see para.40.18. Moreover, the absence of a section and in particular of the latter part leads to the statement that “the executor de son tort has no rights in relation to the assets of the deceased”: para.40.20.
The question is, however, whether those duties, especially in relation to the property over which executors de son tort are seen to act, can be assimilated to those of personal representatives or trustees, more particularly for the purposes of the Limitation Act. Assuming (for this purpose only) that Sidney Nolan had carried out acts which might be characterised as conversion of the three paintings, it does not follow that his estate (and his widow) can still be sued for those acts.
(e) Applicable provisions of Limitation Act and their effect
The relevant provisions of the Limitation Act applicable to personal representatives and trustees may be taken to be ss.22 and 21 of that Act. Even if the 1980 Act were not applicable, ss.20 and 19 of the Limitation Act 1939 were in a substantially similar form, the differences being largely irrelevant for present purposes. One may, however, fairly conclude that none of the earlier provisions applied to the appellant’s claims, because no relevant time limit had expired by the time the 1980 Act came into operation, so that no right had accrued in any party before that Act and its provisions controlled the question of time limits for the present proceeding[64]. Section 22 of the Limitation Act 1980 reads relevantly:
[64]Cf. Maxwell v. Murphy (1957) 96 C.L.R. 261.
“Time Limit for Action Claiming Personal Estate of a Deceased Person
22. Subject to section 21(1) and (2) of this Act –
(a)No action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued …”.
(Paragraph (b) deals only with the recovery of arrears of interest on a legacy and fixes a shorter time limit of six years.) The qualifications affecting deceased estates refer back to s.21 which applies more generally to trust property and to actions against trustees. It reads relevantly:
“Time Limit for Actions in Respect of Trust Property
21(1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action –
(a)In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or
(b)To recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use.
…
[Sub-section (2) applies only to cases where a trustee is also a beneficiary.]
(3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued …
[There follows a provision relating to future interests in trust property.]
(4) No beneficiary as against whom there would have been a good defence under this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.”
One must note again that “trust” and “trustee”, have the same meanings as in the Trustee Act 1925: see s.38(1) of the 1980 Act. Further s.68(17) of the Trustee Act 1925 contains the following definition:
“In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say: …
(17) ’Trust’ does not include the duties incident to an estate conveyed by way of mortgage, but with this exception the expressions ‘trust’ and ‘trustee’ extend to implied and constructive trusts, and to cases where the trustee has a beneficial interest in the trust property, and to the duties incident to the office of a personal representative, and ‘trustee’, where the context admits, includes a personal representative.”
To this one must add the definition of “personal representative” in the Trustee Act itself. By s.68(9) of that Act it is likewise defined as meaning “the executor, original or by representation, or administrator for the time being of a deceased person”.[65]
[65]It should be noted that this definition is considerably narrower than those found in the Administration of Estates Act and the Law of Property Act 1925 (U.K.).
As has been said earlier, any action brought against Sidney Nolan or his estate or any beneficiary thereof for recovery of the paintings would be barred after 12 years from the alleged conversion, so that, assuming for the present that such events took place in the period 1976-1978, or even some time later, the period would have well and truly expired by the time the present proceedings were brought. It is necessary therefore to look at those provisions which take claims of this kind out of the ordinary limitation periods prescribed by the Limitation Act. One may first take the possibility that the appellant might rely on those provisions which extend the time for action when a personal representative has title to or possession of the relevant goods. As may be seen the period in respect of “any claim to the personal estate” of a deceased is extended to twelve years by reason of s.22 but subject to the provisions of s.21(1) and (2). Section 22 in the circumstances could not save the appellant’s claim as again the period of twelve years would have clearly expired by the time this action was brought.
(f) Whether an executor de son tort is a “personal representative”
Nevertheless it might be said that Sidney Nolan, on this assumption, was an executor de son tort and thereby a personal representative within the meaning of the term as used in the Limitation Act. This would carry with it the benefit for the appellant that any personal representative would be a trustee, within the meaning of that Act, and so the period for making a claim might be deferred by reason of the provisions of s.21. However to achieve this end it would be necessary to show that an executor de son tort was both a “personal representative” and thereby in turn a “trustee” for the purpose of the Limitation Act. The definition adopted from the Trustee Act by the Limitation Act shows clearly enough that a personal representative is comprehended within the definition of “trustee” for the purposes of the Limitation Act, but that is of no avail unless an executor de son tort is either directly or indirectly to be treated as a trustee for that purpose. It is not possible to take that step, however, unless the executor de son tort is in fact a personal representative or unless for other reasons, i.e., without having regard to any of the relevant definitions, that person is a trustee. The chain of definitions does not on its face permit that course to be taken. For the purposes of the Limitation Act one has to go to the relevant definition in the Trustee Act but that in turn brings with it the limited definition of “personal representative” in that Act which clearly must be the definition for the purposes of s.68(17). Although in other legislation, including the Administration of Estates Act (see s.55(1)(ii)), the definition of “personal representative” would be wide enough, the narrower definition in the Trustee Act is the one applicable here. Unless one takes a very broad approach to the use of the term “personal representative” in the definition of trust in s.68(17), it is not possible to conclude that an executor de son tort is a “personal representative” and thus a “trustee” for the purposes of the Limitation Act.
In my opinion any loose approach to the terminology carefully worked out in the legislation cannot be adopted. Not only are executors de son tort not true personal representatives but, in addition, they can be sued only as if they were personal representatives and in respect of only some liabilities which those persons might incur as personal representatives, as well as certain liabilities which are peculiar to that particular role. Thus an executor de son tort should not be treated as a “personal representative” for the purposes of the Limitation Act. The same conclusion was reached by Aldous, L.J., with whom the other members of the Court of Appeal agreed[66], in James v. Williams[67]. His Lordship said that: “It would seem from [the] definition that an executor de son tort does not fall within the term personal representative.” This view was apparently adopted from the article by Frank Hinks to which reference has already been made.[68] Mr Hinks had criticised the editors of the 3rd edition of Halsbury for expressing a view to the contrary, but he explained it by saying that it might only be treated as correct if it could be “proved that in all cases an executor de son tort is a constructive trustee, for then an executor de son tort, like an executor, will always be barred from relying on the limitation periods to establish title against those interested in the estate”.[69] By the time the Court of Appeal came to decide James v. Williams the 4th edition of Halsbury had been published and the matter had been corrected in accordance with Mr Hinks’ views.[70] It is unfortunate, with respect, that Aldous, L.J. continued his judgment by stating that: “Further, the definition of personal representative in the Administration of Estates Act 1925 does not suggest otherwise.” What Mr Hinks had said required drawing a contrast between the present definitions and the definition of “personal representative” in the Administration of Estates Act which clearly does include an executor de son tort. One must assume that is all that his Lordship intended, but the statement could be somewhat misleading and might suggest to the reader that his Lordship had misunderstood the operation of the section in the Administration of Estates Act and thought that in some way it was relevant to the definitions presently in issue. It would seem, however, that he was somewhat cryptically referring only to the difference from the other definition. No other authority was cited in either article or judgment, nor have I found any other discussion of the issue. As authority it is perhaps unfortunate that it appears in a judgment which has been subjected to criticism to which reference will be made in due course, but on this question the answer seems correct.
[66]Sir Stephen Brown, P. and Swinton-Thomas, L.J.
[67][2000] Ch. at 7.
[68]See at p.182.
[69]At pp.182-183.
[70]See Halsbury’s Laws of England, 4th ed. Vol. 17 p.401 para.759, referred to in James v. Williams at 7.
(g) Whether s.21(3) or s.22 would apply if Sidney Nolan not “trustee”
If Sidney Nolan as a hypothetical executor de son tort was not a personal representative and thereby liable as a trustee within the relevant definition, it was further contended that he was in any event a constructive trustee and therefore a “trustee” within the meaning of s.21(1)(b) of the Limitation Act, again by reason of the fact that he was an executor de son tort. Of course the same line of reasoning would have brought him within s.21(3) and thus have imposed a six year limit (as the ordinary limit for a claim “to recover trust property”), but, whether or not the appellant was a “beneficiary” within that sub-section, the overriding time limit for claims concerning personalty against deceased estates, including those involving a “breach of trust” as well as other claims, would appear to be that set out in s.22, which provides for a 12-year limitation period[71] in which to sue for “any claim to the personal estate of a deceased person or to any share or interest” therein. Of course the action is not brought against the estate of Cynthia Nolan, an estate in which the appellant clearly had an interest, but is brought against another estate and against a beneficiary who has taken thereunder. On a narrow view of s.22 the claim is made against the “wrong” deceased person’s estate, but the right the appellant asserts is in respect of three paintings which formed part of the personal estate of another deceased person, namely her mother. If the section were expressed to provide a limit for a claim “to recover” any part of the estate, that might be confined to the deceased estate in respect of which the plaintiff has an interest, but it has been held by the Court of Appeal (see Re Diplock’s Estate[72]) that the section also applies to claims against overpaid or wrongly paid beneficiaries.[73] If that be the case, subject only to the operation of s.21(1) and (2), there would seem little reason not to bring within the section (and thus impose a 12-year limit) a claim to recover part of the personal estate of a deceased person which had been wrongly taken by a third party, as is asserted. Of course, merely because the items claimed once formed part of the personal estate of a deceased person would not be sufficient; there must be some element which involves an assertion that the personal estate in question has not been distributed in accordance with the terms of a will or upon an intestacy by the personal representative, whatever reason there may have been for the failure to deliver the items, pay over moneys or whatever else was required to satisfy the claims against the estate. That a broad interpretation of s.22 should be given was emphasised on the appeal from Re Diplock’s Estate to the House of Lords, in Ministry of Health v. Simpson[74] where Lord Simonds, with whom the other members of the House concurred, said “there is nothing in the ancestry of this section[75] which justifies, much less requires, a narrower meaning being given to its words than they ordinarily bear”.
[71]15 years under the equivalent Victorian section (s.22).
[72][1948] Ch. 465.
[73]See also Re Oliver [1927] 2 Ch. 323.
[74][1951] A.C. 251 at 276-277.
[75]The section in question was in fact s.20 of the 1939 Act, but its provisions were relevantly identical.
The 12 years has clearly gone by, and it is only if the claim by the appellant is more properly characterised as one coming within s.21(1)(b) that a different period should apply. This can only occur if the appellant can be described as “a beneficiary under a trust” by reason of Sidney Nolan’s being an executor de son tort. In that case an action “to recover from the trustee” the relevant “trust property”, if received and “converted to his use” by that trustee, could not be barred for no limitation period prescribed by the Act would apply.
(h) Meaning and operation of s.21(1)(b)
I come finally to the question whether the alleged executor de son tort in this case, Sidney Nolan, can properly be characterised as a trustee, and the appellant can be characterised as a “beneficiary under a trust”, both for the purposes of s.21(1). This final step is by no means easy, and the far too long discussion leading to it has been intended to show, as best I can, where, in the range of relationships of trustee-beneficiary and those akin to that, the present relationship stands. On this question generally I have found very little authority, perhaps surprisingly, for, as has been seen, executors de son tort have had a long history in the law and special provisions in limitation statutes relating to trustees likewise go back well over a century in both the United Kingdom and in Australia, though they have taken many different forms and still do. I have found nothing relevant in Canadian law, on which I can speak only with diffidence despite Waters’ comprehensive work on the Law of Trusts in Canada[76], and I have eschewed any examination of United States law on the ground that there is a quite different approach to remedial constructive trusts in that country which might make any examination of authorities there misleading.
[76]2nd ed., (1984). There seems to have been no later edition published for reasons I have been unable to ascertain given the reputation of both work and author. (It has been cited several times in the High Court.)
(i) James v. Williams
The one authority on the section which has been drawn to our attention is the decision of the Court of Appeal in James v. Williams[77]. It took a broad approach to the question, accepting that, but not fully explaining why, executors de son tort may in certain circumstances be treated as constructive trustees, especially for the purposes of the Limitation Act. As already noted, it has been the subject of considerable criticism. I will not examine all of that criticism but merely observe that in the latest[78] edition of that work of authority Underhill and Hayton on the Law of Trusts and Trustees, Professor Hayton makes three scathing comments in his footnotes, in particular contrasting the analysis of constructive trusts in that case with that in Paragon Finance[79], as expressed in the Court of Appeal by Millett, L.J., a case to which it will also be necessary to return. In Paragon Finance Millett, L.J. had carefully distinguished between institutional constructive trustees and remedial constructive trustees, asserting that the latter only held the relevant property on trust because of the very breach of duty made out in the specific litigation. As to this distinction Professor Hayton says[80] that it was “ignored” in James v. Williams, and indeed the case was not cited to the Court in the latter case and no reference was made to it. Bluntly Professor Hayton observes[81] that James v. Williams “in ignorance of Paragon Finance held no limitation applied to an executor de son tort due to Limitation Act 1980, s.21(1)(b) but it would seem that the executor de son tort intermeddled on purely selfish (not altruistic) grounds so that he should have fallen outside s.21(1) and within s.21(3)”. Again in the latest edition of Lewin on Trusts[82] the learned editors, when referring[83] to James v. Williams, roundly criticised it in their treatment of the application of the Limitation Act to trustees de son tort, noting that the decision did not refer to the distinction between the two principal classifications of constructive trustees and assumed that, once a constructive trusteeship was established, s.21(1)(b) would apply.[84] Ford and Lee are more cautious, perhaps because the remedial constructive trust has been applied rather more generously in this country: cf. e.g. Giumelli v. Giumelli[85] and Parsons v. McBain[86]. At para. S18180[87] they state that James v. Williams “may be open to doubt following Paragon”[88].
[77][2000] Ch. 30.
[78]16th ed. (2003).
[79][1999] 1 All E.R. 400. Remarkably that case has not been reported in the authorised reports, nor in any other major series of reports.
[80]At p.382 fn.18.
[81]At p.924 fn.20. See also at p.952 fn.11, where he describes the decision as “surprising”.
[82]17th ed. (2000).
[83]At p.1367 para.42-61 fn.86, at 1387 para.44-06 fn.19 and at p.1397 para.44-38 fn.36.
[84]The case has also been roundly criticised on another ground, the failure to consider Sch. 1 para.9 of the Limitation Act; see Stephen Jourdan: Adverse Possession (2002) pp.553-555 paras.31-08 to 31-14.
[85](1999) 196 C.L.R. 101.
[86](2001) 109 F.C.R. 120.
[87]In their 8th supplement p.138. Cf. also their bland comments in Ch. 22 (version Dec. 2000) at p.124 para.22910 and at p.137 para.22980.
[88]That seems to suggest that Paragon subsequently placed a doubt on James v. Williams but, of course, the principal vice seen in it was that it failed to take account of what had already been said in Paragon.
Failure to consider whole evidence
We now turn to deal with the appellant’s contention that, in seeking to determine if the inferences contended for by the appellant could be drawn from the evidence – namely, that Sidney Nolan acknowledged Cynthia Nolan’s ownership of the three paintings and that he had the requisite donative intent – her Honour failed to have regard to the whole of the evidence, or its cumulative effect, and instead analysed each document separately and in isolation from other relevant material. As counsel for the appellant submitted:
“This is a case founded upon an accumulation of circumstances from which a fact may be inferred, i.e. the gifting of the three paintings. It is a case of considering and weighing up the ‘strands in the cable’. This is not able to be achieved without examining each strand in detail. However, the true picture can only be derived from an ‘accumulation of detail’ and then assessing the overall effect of the details ‘in their totality’. This, however, is what the trial judge failed to do.”
As we have noted earlier, probably the most critical part of the appellant’s case was that Sidney Nolan had inferentially acknowledged that the three paintings belonged to Cynthia Nolan. As we have said, it was submitted on appeal that her Honour’s critical error was not to assess this claim by reference to the whole of the evidence, but to do so by examining each item of evidence in isolation from other material and concluding on the basis of such a piecemeal analysis that it could not be inferred that Sidney Nolan made the acknowledgment contended for. It was the appellant’s case as we have noted, that the cumulative effect of the documentary evidence gave rise to the inference that Sidney Nolan had, at all relevant times, treated the three paintings as being the property of Cynthia Nolan. The evidence also established, said the appellant, that Cynthia Nolan claimed that she owned the paintings and consistent with that assertion, exercised her possession and control over them. Moreover, it was claimed that the evidence showed that each of Sidney Nolan and Cynthia Nolan had a collection of Nolan paintings which were, from time to time, made available by them for exhibitions. The whole of the evidence, said the appellant, led to the ultimate conclusion that, on the balance of probabilities, Sidney Nolan had made an absolute gift of the three paintings to Cynthia Nolan so that, when she died, they formed part of her estate. But, it was claimed, her Honour failed to consider the totality of the evidence and, therefore, her conclusion that the appellant had failed to prove her case was fatally flawed. The respondents, on the other hand, argued that her Honour did have regard to the whole of the evidence and did not confine her analysis to a separate examination of each document. It was said that a fair reading of her Honour’s reasons made it plain that she examined the appellant’s case in the context of the totality of the evidence and concluded that it did not give rise to the inference contended for. In analysing her Honour’s approach, said the respondents, it should be borne in mind that the judge was requested by the parties to defer ruling on the admissibility of individual documents until after all the evidence had been presented and as part of her reasons for judgment. Thus, it was argued, her Honour necessarily had to examine each document separately for the purpose of determining its admissibility, but her conclusion that the claimed inference could not be drawn was made on a consideration of the whole of the evidence.
The approach that is to be adopted in determining whether the ultimate fact, of which there is no direct evidence, can be inferred from other established facts, has been examined in a number of recent cases which re-state principles as to which there was little controversy before us. The principal debate before us centred on whether her Honour’s analysis of the evidence was in accordance with the accepted approach. Thus, for example, in Chamberlain v. The Queen (No.2)[138] Gibbs, C.J. and Mason, J. said[139]: “In a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it” and “that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.” And in Shepherd v. The Queen[140] Dawson, J., who delivered the principal judgment, after referring to Chamberlain (No.2)[141] said[142]:
“Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.”
A little later, his Honour said[143] that “evidence may have a cumulative effect” and that it is incumbent upon the arbiter of fact “to consider all the facts together at the conclusion of the case”.
[138](1984) 153 C.L.R. 521.
[139]At 580.
[140](1990) 170 C.L.R. 573.
[141]At 535-536.
[142]At 579.
[143]At 580.
Although the observations made by the High Court in Chamberlain (No. 2) and Shepherd were expressed in the context of criminal proceedings, the principles also have application in civil cases.[144] Indeed, Tadgell, J.A. explained in Longmuir[145] that, both in the civil and criminal law context,[146] the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain “whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.” Thus, it seems plain enough that, when a court is asked to infer a fact from various items of indirect evidence, it must consider the combined or cumulative effect of the evidence. This Court in Longmuir concluded that the trial judge had erred because he considered each item of circumstantial evidence in isolation from the other material and sought to determine whether the ultimate fact could be inferred from each such item of evidence. In that case, the respondent’s house was damaged in a fire that was deliberately lit and there was a large body of circumstantial evidence which pointed to the respondent having set the property alight. The trial judge found for the respondent notwithstanding the evidence that implicated him in the lighting of the fire, his Honour reasoning that there was a possibility that someone else had set fire to the respondent’s residence. In upholding the appeal on the basis that the judge had erred in the manner in which he assessed the evidence, the President observed[147]
“[H]is Honour deprived himself of the opportunity of assessing the full impact of [the] evidentiary facts by engaging in a false process of reasoning. Rather than considering what inferences flowed from the combination of evidentiary facts which were not in contest, the learned judge appears to have treated each of the individual evidentiary facts as if it were the ultimate factum probandum; in the sense that unless, when analysed, it was capable by itself of supporting the inference that the respondent was responsible for lighting the fire, it should be discarded without regard to the support which such fact might have received from the other facts.”
[144]Transport Industries Insurance Co. Ltd. v. Longmuir [1997] 1 V.R. 125 at 129 per Winneke, P.
[145]At 141.
[146]See also Tadgell, J.A. in Robertson v. Smith [1998] 4 V.R. 165 at 179-180 with whom Phillips and Kenny, JJ.A. agreed; McKinnon v. Voigt [1998] 3 V.R. 543 at 557-558 and R. v. Harvey [2001] VSCA 19 with whom Ormiston and Chernov, JJ.A. agreed. See further: R. v. Huisman and Shiells [1999] VSCA 170 at [14] per Buchanan, J.A. with whom Phillips, C.J. and Charles, J.A. agreed and R. v. Ng (2002) 5 V.R. 243 at 307 per Winneke, P., Batt and Eames, JJ.A.
[147]At 127. See also to like effect, at 141 per Tadgell, J.A. and at 145 per Phillips, J.A. who expressed agreement with the judgment of Tadgell, J.A.
Reference should also be made to the observation of Buchanan, J.A. (with whom Phillips, C.J. and Charles, J.A. agreed) in R. v. Huisman & Shiells[148] that “the distinction between the evidence founding a chain of sequential reasoning and an accumulation of circumstances from which a fact may be inferred was explained metaphorically in Wigmore on Evidence, vol.9 para. 2487, as the distinction between links in a chain and strands in a cable. See Shepherd v. R.[149] ” and in R. v. Ng[150] the Court of Appeal[151] held: “It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality.”
[148][1999] VSCA 170 at [14].
[149](1990) 170 C.L.R. 573 at 579 per Dawson, J.
[150](2002) 5 V.R. 257 at 307.
[151]Winneke, P., Batt and Eames, JJ.A.
None of the cases referred to above were mentioned by her Honour in her judgment. More importantly, nowhere in her reasons did her Honour state that she was following those principles in deciding the case. Instead, as we will explain more fully later, the learned judge adopted an approach whereby she separately considered the admissibility of each of the disputed documents, the meaning to be attached to its terms and the weight to be attributed to it. It is true that, as the respondents have pointed out, the parties requested her Honour to determine the admissibility of the large number of documents that were placed before her by the appellant in support of her circumstantial case at the conclusion of the evidence which required her to consider each document, or group of documents, separately. And this is what her Honour did: in her reasons for judgment, the learned judge analysed each document, or each group of documents, and ruled on its or their admissibility. But her Honour did more than that: in the process of considering each document her Honour also assessed whether it established a donative intent or an acknowledgment by Sidney Nolan that the painting in question belonged to Cynthia Nolan.
That it was her Honour’s intention to make a separate assessment in respect of each document is made plain from what she said before she embarked upon the analysis. In relation to the examination of the documents pertaining to “Italian Crucifix”, for example, her Honour said:
“The parties made detailed submissions in relation to each of the documents. Each is discussed below. In order to avoid undue repetition, I consider the questions of admissibility, meaning and weight together, in relation to each document or statement. In each case, I bear in mind the level of scrutiny and caution required by the nature of the claim and the peculiar circumstances already discussed.”
By itself, that statement does not mean that her Honour could not have examined each document by reference to, inter alia, other relevant material. But from what her Honour said in respect of each document when she examined it, as we have summarised previously when we dealt with documents that were relied on by the appellant, it is plain that the learned judge did not have regard to other relevant material for the purpose of determining if the document in question provided evidence of donative intent on the part of Sidney Nolan or of his acknowledgment of Cynthia Nolan’s ownership of the paintings. Moreover, her Honour’s analysis also makes it clear that she did not evaluate the evidence as a whole and determine on the basis of an “accumulation of detail” or “the overall effect of the detailed picture”[152] whether the appellant’s contentions referred to earlier had been made out. The respondents claimed, as we have said, that it is apparent from her Honour’s reasons that she had regard to the totality of the relevant evidence in coming to her conclusion. By way of example, they pointed to what her Honour said at the conclusion of her examination of each of the documents pertaining to “Italian Crucifix”, namely: “From the above it follows that … the documents relied on by the plaintiff do not [establish a gift by Sidney Nolan of “Italian Crucifix” or an acknowledgment by him that it was Cynthia Nolan’s property]”. In our view, however, a fair reading of her Honour’s reasons makes it apparent that she came to this conclusion on the basis of her “above” assessment of each document and not on the basis of the totality of the evidence. Contrary to the approach that should be adopted in analysing evidence of this nature, as explained by the authorities to which we have referred, her Honour assessed each document in isolation “as though running through items on a check list”.[153]
[152]Longmuir at 141 per Tadgell, J.A.
[153]Longmuir at 141 per Tadgell, J.A.
The approach that her Honour adopted may be more specifically illustrated by reference to her analysis of the following three documents concerning the ownership of “Italian Crucifix”. Of necessity, a summary statement of our earlier analysis of the evidence will be required.
(a) The Redfern Gallery catalogue
Her Honour said that it was the plaintiff’s case that the handwritten notations by Sidney Nolan, which are identified in paragraph [96] above, more particularly, his note “200 (Cynthia)” opposite Item 19 in the catalogue, which was described as “Crucifix – Puglia”, was a statement “to the effect that Cynthia is the designated owner of the painting (submitted to be identifiable with ‘Italian Crucifix, 1955’)”. As we have noted her Honour ruled the document inadmissible, a ruling which was challenged on appeal and the correctness of which it is now unnecessary for us to determine. Her Honour approached the assessment of the document for the purpose of determining its admissibility by considering what would have been its evidentiary value had she ruled it admissible. Her Honour said that even if she had ruled the document admissible “... I would attribute no weight to it in establishing Cynthia’s ownership of “Italian Crucifix” 1955. The notation does not clearly refer to that painting and is in any event susceptible of an indefinite number of equally tenable constructions. I am unable to attribute any specific meaning to it.”
The approach indicated in that passage would, in our view, clearly be inconsistent with the approach properly taken in a case involving the assessment of circumstantial evidence. Her Honour would have entirely disregarded the document because it did not unequivocally answer the question in dispute. Whilst the document might have been referring to a painting other than the one in dispute, the possibility remained that it in fact referred to the painting in question. Similarly, while the reference to “200 (Cynthia)” might not have evidenced Sidney Nolan’s opinion of its market value, or of its ownership, those were possible interpretations of his writing. It would only be by reference to other relevant documents and evidence that a conclusion as to whether the writing had the meaning for which the appellant contended, could be drawn. To expect the one document to perform that task would be to require it to be direct evidence of facts rather than be but one item in a circumstantial case.
(b) The Wakefield Gallery Checklist
As we have said, in paragraph [98] above, her Honour admitted into evidence a two-page document, described as a check list, written by Sidney Nolan in approximately 1956 in relation to his paintings that were exhibited in the Wakefield Gallery. Sidney Nolan had written at the foot on the page “Wakefield Italian Crucifix coll. Cynthia Nolan (48x36)”. Her Honour noted that the dimensions were those of the disputed painting but said that the document came from a source (the Cynthia Nolan Papers) which she said might not be comprehensive and which the respondents could not test due to their limited access to those papers. Her Honour said that, exercising scrutiny and caution which those circumstances required, “I do not construe the statement to mean that ‘Italian Crucifix’ 1955 was, at the date of the notation, in the collection of Cynthia.” Her Honour observed that the notation could have a number of possible meanings. It might be a mere private jotting, never intended by Sidney Nolan to be communicated to someone else; it might represent an intention to transfer it at some later time to Cynthia Nolan, conditionally or unconditionally. Her Honour added that :
“A number of other constructions are possible. There is nothing to indicate that it is a conclusive statement intended to be made public, to affect rights or to bind the maker. It is not possible to conclude that it was not qualified or contradicted by other documents which have not been produced”.
Her Honour said that although it was a reasonable inference to draw that the notation referred to the disputed painting, such an inference did not overcome “the problem that no unequivocal meaning can be attributed to the notation”. Her Honour concluded:
“The above circumstances could be said to justify rejection of the statement pursuant to s.55(9) of the (Evidence) Act. However, in my view, the preferable course is to admit it, but to attribute to it little or no weight. The notation does not, in my opinion, constitute evidence that at the date of the statement (which is unknown) “Italian Crucifix” 1955 formed part of Cynthia’s collection, or that it was at that date publicly acknowledged by Sidney Nolan to be part of that collection or otherwise the property of Cynthia”.
Once again, it may be seen that, because her Honour considered that the other explanations were open as to its meaning, the document was rejected as incapable of going to proof of the appellant’s case. It is true that other explanations may have been open as to its meaning, but one explanation that was clearly open is that for which the appellant contended. Whether that is correct or not is the matter which ultimately would have to be decided on the balance of probabilities after having regard to the whole of the evidence comprising the circumstantial case. Because of her Honour’s conclusion, this document was not considered again by the judge when she came to analyse some of the other documents which, the appellant contended, were part of the material that showed, inter alia, that Sidney Nolan made the acknowledgment contended for.
In our view it is plain that the notation on the checklist amounted to at least some evidence that the subject of the notation was “Italian Crucifix” and that Sidney Nolan treated it as belonging to Cynthia Nolan’s collection. Clearly, the notation was not determinative of the question whether Sidney Nolan had accepted that it belonged to his then wife, but it was an item of evidence that could point to that conclusion and should have been considered with other relevant evidence. Unfortunately, it seems that once her Honour effectively dismissed the relevance, or evidentiary value, of the notation the document was not thereafter considered by her Honour for the purpose of determining the ultimate question.
(c) Whitechapel Art Gallery catalogue
As we mentioned in paragraph [99] above, the 1957 Whitechapel Art Gallery catalogue listed “Italian Crucifix 1955” as coming from the collection of Cynthia Nolan and being the same size and the same painting as was exhibited at Redfern Gallery in May 1955 under the title “Crucifix - Apulia”. Her Honour admitted this document into evidence and noted that the catalogue’s preface acknowledged the collaboration of both Cynthia and Sidney in preparing it. Her Honour considered, however, that it could not be said whether it was Cynthia or Sidney Nolan who supplied this information and it was just as likely to have come from Cynthia Nolan. The judge said that there was “no external evidence” that Sidney Nolan had input into the preparation of the catalogue or was aware of or approved its contents. That statement in itself suggest error in approach. Whether there was specific “external” evidence relating to this exhibition may be arguable (although there does appear to be such evidence) but there was evidence, at least, that Sidney Nolan took a very keen interest in all exhibitions of his work. Putting that specific matter to one side, however, her Honour’s conclusion about the statement in the catalogue was that:
“ . . . it is not established that it is based on information supplied by Sidney Nolan or that he approved the attribution. Sidney Nolan cannot now be called to give evidence on the circumstances of the attribution. Exercising the required scrutiny and caution, I do not consider that the statement constitutes an acknowledgment by Sidney Nolan that ‘Italian Crucifix 1955’ belonged to Cynthia’s collection.”
Once again, it can be seen that the document was being viewed by the judge in isolation from other documents and as being required to prove ownership by itself or else it would be relevantly discarded. In this instance her Honour considered what the situation would be if, contrary to her opinion, it was, indeed, a statement made and approved by Sidney Nolan. Her Honour said in that event: “I do not consider that the attribution of the painting to the collection of Cynthia would establish that Cynthia was the owner of the painting”. That was so for two reasons, said her Honour, first, because the attribution in a catalogue “is not a reliable acknowledgment that the person is the absolute owner” and secondly, even if it did constitute a statement of gift by Sidney Nolan, according to her Honour it could not prove the gift unless there was also evidence of delivery.
In our opinion, once it was accepted that the catalogue provided some evidence that Sidney Nolan acknowledged the painting as being Cynthia Nolan’s, then it had quite powerful weight when considered with other relevant evidence, including the documents and material relating both to that painting and others and also to Sidney Nolan’s practice of involving himself with catalogues. The approach evident, however, is in our opinion, at odds with that which would be appropriate in assessing the totality of evidence in a circumstantial case.
There were other notations that were made by Sidney Nolan on documents that were admitted into evidence by her Honour that pertained to various exhibitions of Nolan paintings, such as those held at the Redfern, Whitechapel and the New South Wales art galleries. Again, her Honour considered each of the notations separately and concluded that none amounted to the claimed acknowledgment by Sidney Nolan. Moreover, as we have said, these documents were not considered by her Honour later, in conjunction with other material, to determine whether the whole of the relevant documentation supported the appellant’s case. A like treatment was accorded by her Honour to the catalogues described earlier that related to the various Nolan exhibitions. It will be recalled, for example, that the Whitechapel catalogue attributed “Italian Crucifix” to the Cynthia Nolan collection, but her Honour considered that the catalogue did not demonstrate that Cynthia Nolan was the owner of the painting in question, or that it amounted to an implied acknowledgment by Sidney Nolan that the painting belonged to her. And this notwithstanding that Sidney Nolan participated in the preparation of the catalogue and could, therefore, be taken to have impliedly accepted the accuracy of the representation in it that the relevant work came from the Cynthia Nolan collection.
Her Honour also effectively treated as irrelevant to the questions of donative intent, and the claimed acknowledgment by Sidney Nolan, a number of documents which showed that Cynthia Nolan asserted that she was the owner of the paintings in question. An example is the loan agreement with the British Arts Council which was signed by Cynthia Nolan as “owner” of “Italian Crucifix”, a further example being the paintings that formed part of the Cynthia Nolan Collection, 26 of which were sent to the Power Gallery. It is clear enough that, of themselves, as her Honour said, such claims could not establish Sidney Nolan’s admission or acknowledgment of ownership of the painting by Cynthia Nolan. But such assertions are relevant, at least to the question whether a gift of the paintings was made to Cynthia Nolan, in the sense that they could be said to show that she accepted the gift. It could also be said that they are relevant to whether she exercised possession and control over them consistently with her claimed ownership of them. But her Honour did not analyse this documentation from that perspective. Rather, as we have said, she treated it as being irrelevant simply because, by itself, it did not establish an admission or acknowledgment by Sidney Nolan that the paintings belonged to Cynthia Nolan.
There is also little doubt that her Honour did not consider the cumulative effect of the material pertaining to the New South Wales exhibition of Nolan paintings to which reference has been made and other relevant evidence, such as the practice of Sidney Nolan and Cynthia Nolan to maintain their own collections of Nolan paintings and Cynthia Nolan’s claim to ownership of “Italian Crucifix”. All this could be said to give rise to the prima facie inference that ownership of that painting by Cynthia Nolan was acknowledged by Sidney Nolan.
At the conclusion of her examination of each of the documents pertaining to “Italian Crucifix”, her Honour said: “From the above it follows that … the documents relied on by the plaintiff do not [establish a gift by Sidney Nolan of Italian Crucifix or an acknowledgment by him that it was Cynthia Nolan’s property]”. In our view, however, her Honour’s reasons make it apparent that she came to this conclusion on the basis of her “above” assessment of each document and not on the basis of the totality of the evidence. Contrary to the approach that should be adopted in analysing evidence of this nature as explained by the authorities to which we have referred earlier, her Honour assessed each document in isolation “as though running through items on a check list”.[154]
[154]Longmuir at 141 per Tadgell, J.A.
Although the above examples of her Honour’s approach relate to “Italian Crucifix”, her Honour’s analysis of the documents pertaining to “Hare in Trap” and “Royal Hotel” suffer from the same vice. Her Honour’s failure to consider the whole of the evidence relating to the respective paintings for the purpose of determining whether, on the balance of probabilities, Sidney Nolan acknowledged their ownership by Cynthia Nolan and whether, in all the circumstances, the inference could be drawn that he had made an absolute gift of them to Cynthia Nolan, amounted to a fundamental error which vitiated her conclusion that the appellant had not established her case. It is at least arguable that, if the evidence were looked at as a whole it is open to conclude that Sidney Nolan had made the acknowledgment contended for by the appellant and further, that he had made an absolute gift of the three paintings to Cynthia Nolan. In the circumstances, but for the conclusion we have reached concerning the statute of limitations, her Honour’s decision would have to be set aside and a new trial ordered. Given that conclusion, it becomes unnecessary to consider the appellant’s other grounds on which she challenges her Honour’s decision.
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