Friday, June 16, 2006

It’s time to wind up the 1919 bequest of Jules Francois Archibald#

Most public-offer prizes – and especially those in which the choice of winner/s is skill -based, rather than random – have a term of entry that says: “Judges’ decision is final. No correspondence will be entered into”.

Such a contractual term, I would argue, is unusual in that it is inherently “fair”. Leaving aside the possibility of rank corruption (e.g. awarding the prize to a judge’s family member), even a clear disparity in objective bargaining power between the parties amounts to very little.

That is, if you don’t like the “Judges’ decision is final” condition of entry, just don’t do it. The prize is almost certainly not basic food, shelter etc, so there is no shred of economic compulsion to enter. As far as rank corruption goes, clearly entrants have a legitimate right to be protected against such, but (“private”) contract law is a blunt instrument for doing this. Public law, via Lotteries etc Acts, can and does better address such concerns.


So why is the Archibald Prize so different from a typical prize, in being over and over, a sore-loser’s free-for-all, despite ne’er a hint of judges’ corruption or similar?

The only explanation I can come up with here is that the Archibald is a prize from the grave, while typical public-offer prizes are not. Refining this somewhat, the Archibald is also unusual even among its kind, in its degree of public-ness. There are plenty of other prizes-from-the-grave (like scholarships for the tertiary study of Home Economics) that in theory could attract the same sore-loser attention, but don’t, for fairly self-evident reasons.

Legal disputes over wills, to the average punter, are delightfully grubby to-observe intra-family affairs, invariably about money.

For an equity*-leaning lawyer, though, such disputes are relatively uninteresting. A cashed-up testator with a mind for mischief can wreak better and longer-lasting havoc on the living by creating a (specific) purpose** charitable trust to operate after his/her death.

The perverse beauty of such trusts – from the deceased’s POV – is their inherent instability, caused by their pool of money being essentially ownerless. Capitalism naturally abhors a vacuum, meaning that any pile-o-money is usually easily spoken for by at least one person. Charitable purpose trusts, however, especially if drafted with an eye to future mischief, are an exception to this rule. Money tends to simply slosh around inside such a trust, with the only openings to spend it being small and/or complicated.

Of course, there are people nominally responsible for spending this money according to the deceased’s wishes – trustees. And supervising the trustees here are the courts. But the wackier and/or more specific the bequest, the harder the spending job becomes, especially over time. And by “over time”, I don’t mean just decades: most charitable purpose trusts, including the Archibald Prize, are perpetual.

One pragmatic solution for the relative ownerlessless of the bequest money is for the trustees to “privatise” the bequest. That is, if not quite run it for their own financial benefit (a big no-no, of course), to run it for their own administrative ease. For the first three decades of the Archibald Prize, such a simplicity-first approach ruled quite strongly. Just three (ultra-conservative)artists won the Prize a total of 21 times in the years 1921 to 1957. To modern appearances, this doesn’t look at all good, but I would argue that there are still worse ways of disbursing the Archibald estate than to a select group of B-list artists. Such as shovelling it into the pockets of lawyers (whether B-list ones, a select group, or otherwise).

Because of the general costs rule re disputed wills – that the estate will absorb the cost of any challenge to it (a point memorably underlined in Dickens’ Bleak House) – there is a fair incentive for lawyers to collude, consciously or otherwise, with plaintiffs in bringing unmeritorious claims against the estate/trustees. At worst, a losing plaintiff wastes his/her time, while the plaintiff’s lawyer still gets paid, and out of the winning defendant’s pocket, to boot.

In theory, of course, there are safeguards designed to prevent such things from happening. Foremost among these is/was the requirement for the Attorney-General’s personal intervention in charitable purpose trust cases. The reasoning here went (note past tense) that, with the general public being the ultimate beneficiaries of such trusts, some actual person had be able to represent the general public.

For whatever reason, this requirement seems to have fallen by the wayside in the last two-to-three decades. Thus, in the 1944 Archibald Prize challenge Attorney-General v Trustees of National Art Gallery of NSW (1944) 62 WN (NSW) 212, the Attorney-General was the plaintiff, albeit acting on the information of Mary Edwards and Joseph Wolinski. By 1983, however, John Blooomfield (a losing artist) seems to have been unquestionably allowed to be plaintiff in his own right***, a pattern repeated in 2006, with Tony Johansen’s (another losing artist) challenge: Johansen v Art Gallery of NSW Trust [2006] NSWSC 577.

This “plaintiff” slippage is unfortunate, because it on-distorts everything else. The latest Archibald-challenge court case should simply have never been brought; and surely would not have been brought, given both precedent and lack of any clear public interest behind Johansen’s case, had the Attorney-General been on the ball here.

So what is to be done? As my headline suggests, I believe that the latest lawyers’ picnic has ruined the Archibald bequest beyond all repair. Despite the nominal result, the floodgates have now been opened for all manner of future axe-grinders and sore-losers. To put this another way, from now on there surely will be a premium on Archibald judges covering their backs by making ultra-conservative decisions.

Such a prospect is not merely a return to the club-like bad old days of 1921-1957 (above), however. Art has moved on, and a series of club-like prize decisions over the next few years would soon enough turn the Archibald into a joke.

The only way out, that I can see, is to end the whole shebang. I’m guessing that the Archibald trust capital amounts to a few million dollars. Under equity law, a failed charitable purpose trust (i.e. the ownerless money) is supposed to go to the will-maker’s next of kin. Since JFA died such a long time ago, I have a better idea: burn the money on the AGNSW steps, as a grand act of performance art ("anti-lawyer", if anyone insists on asking "But what does it mean?"). And preferably stick Tony Johansen’s nose in the resultant smoke, too, so adding to the performance's meaning and complexity.

Finally, I doubt that it is any coincidence that Tony Johansen is a 49 y.o. (talentless) boomer, while the artist he was challenging is a 37 y.o. (talented) Xer. If this is what you want, boomer fucktard, then this is what you get: so smell it and choke.

# aka John Feltham Archibald

* Technical legal note: Anglo-Australian law is internally divided by a “common-law” vs “equity” moiety. The former encompasses most contract law (and more), while the latter has within it: wills, trusts, unfair contracts, and (historically at least) corporations (and more).

** A bequest can simply be made to a person or entity (which entity may or may not be a charity): e.g. “Uncle Fred” or “the Lost Dogs’ Home”. But a bequest can also be made to a mere cause or purpose, as long as it is a charitable one (in essence, a public-minded and benefiting purpose). Thus, this “purpose” bequest: “To feed and house the stray dogs of Melbourne” will be legally enforceable even if it doesn’t name any entity, but this “purpose” bequest: “To train the stray dogs of Melbourne to yelp louder” won’t be, (but an outright bequest to The Pro Dog-Yelping Society Inc would be enforceable, as long it such an entity exists).

*** Bloomfield v Art Gallery of New South Wales Trust NSWSC 23 September 1983 unreported Helsham CJ in Eq

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