Art and Limitation Periods

Posted on: August 19, 2015 by

A painting was stolen in 1991. It was a work referred to as Girl in Sunlight by Australian impressionist Rupert Bunny (see below). It was owned by James Watt from Melbourne. Watt tried to recover the painting, but there was nothing he could do. He died in 1993.

In May 2010 the painting was seized by the police from the home of a prominent Melbourne solicitor named Frank Levy. Levy was in good faith. He didn’t know the painting had been stolen. The painting had been given to him in the will of one of his clients, a man named Peter Rand. No one knows how Rand, who died in 1997, got hold of the painting. A magistrate ordered that the painting be given to the original owner Watt’s nephews (the executors of his estate) pending a trial on ownership.

Rupert Bunny - Levy v WattBefore the Victoria Supreme Court the solicitor Levy argued the limitation period. The painting had been stolen in 1991. The theft constituted the civil wrong of conversion. Conversion is a tort. And the limitation period for torts in the state of Victoria (as in every Australian jurisdiction save one) is six years, a period which begins to run from the moment of the first conversion. But the critical question here was whether the limitation period could be postponed. Was there fraudulent concealment involved when the thief stole the painting? This was what the Court of Appeal had to determine.

The case highlights a recurring theme in disputes relating to the ownership of art. Will the passage of time have an effect on the original owner’s right to bring a claim in recovery? Can those rights expire once the six years (in this case) were up? The answers to these questions will be complex, and needless to say case-specific. But time and again lawyers must grapple with the same problems.

The reason is that art itself has a long lifespan. Cultural products are meant to last. As times change, they persist (unlike the more fleeting and trivial aspects of popular culture) and so any change of possession will almost inevitably have an impact on the application of the limitation period. Of course this will be different depending on the jurisdiction: six years for a tort in Victoria; six years for a tort in England and Wales. But there is an important difference between Victoria and England…

Under the English Limitation Act 1980, the period cannot begin with a theft. Time in such cases will only start to run from the first good faith purchase. The Victorian Act does not have an equivalent provision. But the interpretation by the Court in Levy v Watt of the postponement provision referred to above (whereby the fraudulent concealment of the theft will stop the clock from ticking) will have much the same effect. What the English changed through legislation in 1980 was changed in Victoria through judicial decision making, such that time will not run in favour of a thief.

If you are interested in more on this case, see my case note from the October 2014 issue of Art Antiquity and Law. For far more thorough and elucidating articles on limitation periods generally, all from the same journal, see Ruth Redmond-Cooper’s ‘Time Limits in Art and Antiquity Claims’ (Parts 1 and 2), as well as ‘Restitution of Art and Cultural Objects: a Reassessment of the Role of Limitation‘ by David Carey Miller, David Meyers and Anne Cowe. And don’t let time pass you by…