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1. INTRODUCTION: WHAT IS PROPERTY?

1.1 What is property?


1.2 The case for private property rights
1.3 What things should be capable of ownership
1.3.1 Property in information?
1.3.2 Property in the human body?
1.4 Protecting Property rights
1.5 Recap- Tutorial One
1.6 Exam Answer

1. What is property?
Law of property principally concerns the relationship between a person and a thing.
But what is property, and what should and shouldn’t be subject to property rights?
The concept of property involves a degree of control and responsibility, and the right to exclude others
from use.
Chambers:
“property law is the law relating to things and property rights are the legal rights that entitle people to
make use of things”
(James Penner)
“Thing here is a term of art which restricts the application of property to those items in the world which
are contingently related to us, and this contingency will change given the surrounding circumstances
including our personal, cultural and technological circumstance”
(eg. Slaves use to be capable of ownership, now different context)
(Bright and Dewar):
‘Property is not a thing but rather a relationship which one has with a thing. It is infinitely more
accurate, therefore, to say that one has property in a thing than to declare that a thing is one’s property.
To claim ‘property’ in a resource is, in effect, to assert a strategically important degree of control over
that resource, and to conflate or confuse this relationship of control with the actual thing controlled
may often prove to be a (serious)… error. ‘Property’ is, rather, the word used to describe the particular
concentration of power over things and resources’

Essential characteristics of property:


1. Enforceability
A property right is a right that is enforceable against others. Is a right “in rem” as it is a right
in a thing, and is enforceable in relation to that thing.
The right is enforceable generally against others.
2. Relates to things are separate and apart from ourselves
Rights that are personal are those concerning our body or wellbeing. Property rights are not
these. They are rights separate and apart from personal rights.

We have a wide variety of property rights. Therefore most (but not all) have the characteristics of:
(a) Ability to alienate
(b) Ability to exclude – most property rights allow the holder to exclude others. This can separate
a property right from a personal right. Eg. A lease is a property right. But a license is not. ?
Eg. Radich v Smith – a lease is a type of property right in land. A licence arises when one
person is allowed on another persons land but thre is no grant of a proprietary interest.
(c) Ability to recognise the value of a thing – can be sentimental or economic value. Note:
personal rights may have value too, that is why this is common but not essential.

Eg. Radich v Smith


Was there a lease or a licence in existence?
Facts:
- Owner of property believed they had created a licence, not a lease, so they did not have to be
subject to rent restrictions.
Held:
- Look at the substance of the agreement, not just the title that was given to it.
- Do this by looking at the essential hallmarks of a lease- was there a grant of exclusive
possession?
- (Windeyer J): The owner did have exclusive possession of the land.
- Therefore it was a lease! As owner had the ability to exclude others. Therefore the owner had a
property right.
The Concept of Property
If the right to exclude doesn’t exist, can the right still be characterised as a property right?

Eg. Milirrpum v Nalbaco Pty Ltd (1971) (note: Wrong law!!)


Facts:
- Mining lease granted to mine company over traditional aboriginal land.
- Landholders/ traditional owners had to show they had a property right to the land.
- Dfs said the Pfs did not have a system of law.
- Blackburn J disagreed. Why would this matter? Property rights can only be enforced if a sytem of
law exists.
(Blackburn J):
- Dismissed the pfs – said they did not have a claim as “property, in its many forms, generally
implies:
• The right to use and enjoy
• The right to exclude others
• The right to alienate
- The plaintiffs did not display this in their use of the land, so they had no right in property to the
land.
- “there is so little resemblance between property, as our law understands that term, and the claims of
the pfs, that I must hold those claims as not in the nature of proprietary interests”

Subsequent courts have concluded that Blackburn J’s analysis was ‘wholly wrong’. In Mabo No 2 the
High Court affirmed that native title exists and is part of the common law of aus and, in doing so,
acknowledges that the decision in Milirrpum was wrong.
(Chambers): ‘it is important not to overstate the essential characteristics of a property right’ as not all
property rights will possess all such characteristics.

Does calling something property mean property rights automatically attach to it?

Eg. Yanner v Eaton


- Df charged with hunting crocs without a license
- Magistrate said Df had a native title right to hunt.
- Went all the way to HC
- HC argued s(7) of Fauna Act contravened the Pfs right, said Crown had property to all fauna.
(Held):
- The Crown’s property here did not mean the Crown owned ALL fauna!
- Just allowed for a regime to be in place where Crown had a degree of control and the ability to
regulate fauna in the state, not private property rights to that fauna!
- What was the purpose of s7 then? So that on behalf of the state one could prevent the exploitation
of fauna and ensure its protection. Gave the state a power to regulate.
- Just because the term ‘property’ was used in the act didn’t mean the Crown had property rights
over all fauna.

Public and Private Property


There are different types of property arrangements: private, collective or public/common property.

(a) Private
The right of a private person to make decisions on the use of a thing. The thing can be used by that
private property holder as they wish.
(b) Collective
(c) Public:
Exists when the state possesses the powers associated with the thing. The decision maker is ultimately
responsible for it. Those rights are assigned to that person/body so public rights can be performed in
the people’s best interests.
(a) Common Property:
Interests for which there is a shared right of use conferred on everyone. Property in no one as there is
no right to exclusion. Eg. The air
2. The Case for Private Property Rights

Laws about property reflect social values. The concept of private property rights is not foreign to any
of us and most of us would probably say it was worthwhile. Private property rights are not, however,
an incontestable notion. Indeed, many conceptions of perfect societies involve the elimination of
private property, usually advanced on the basis of equality arguments.

Why have them?


Provides motivation to do work, be innovative.
Need a system to enable people are protected.

i. Arguments for private property rights


Posner, Hardin.
Posner:
- Private property creates incentives to use resources efficiently
- In relation to land, it maximises the value of land.
- Need 3 characteristics: universality, exclusivity, alienability
Hardin:
- If land is unowned and unmanaged, resources will be depleted. Therefore you need either
government intervention of private property.

3. What things should be capable of ownership?

Property must relate to a thing, therefore extrinsic things are not capable of ownership? Is everything
external to a person capable of being property?

i. Property is a dynamic concept:


(Gray) Property is:
a. A relative concept: something that is not property today can be classified as property
tomorrow, eg. Slavery. Also relative in the sense of who you can force those rights against.
b. Property has moral limits. Some things are not morally within the limits of what constitutes
property. Eg. Certain resources are so central and extrinsic to human existence that it would
be unfair to allow them to be privately owned.
c. Hard to define.

3.1 Property in information?


What about the news? What about people engaging in collecting the news? How do we balance the
ownership of information?

Eg. International News Service v Associated Press (1918) US


DF was using PFS newspaper reports published in the East Coast to prepare its own reports for sale in
newspapers sold hours later in the West Coast.
Papers were in competition but had different regions to supply to.
Was there a remaining property interest between themselves as suppliers?
Issues:
1. Is there property in the news?
2. Can this survive after the news is first published?
3. Was the Df’s conduct unfair competition?
There should be no ownership in news for policy reasons. Pf focused on the DF’s actions.
Court reached a compromise:
Once news is in the public domain, there can be no ownership of it.
There was a quasi property right open to the Pf in putting the news on the billboards- Court did this as
they wanted to recognise the Pf’s expenditure of time, effort and money in order to be the first to get
the news. Court held that news was ‘quasi property’ (note this has been criticised as misleading!!)
The Df ‘should not be able to reap what the plaintiff has sown’.
The Pf’s quasi property right was protected by the injunction!
Note: US decision.
Also dissenting judge:
“the fact that a product of the mind has cost its producer money and labour, and has value for which
others are willing to pay, is not sufficient to ensure to its legal attribute of property”

The Australian reaction….

**Eg. Victoria Park Racing v Taylor (1937) CLR


VPR ran horse races.
Radio station convinced neeeeeighbour (lol) to erect stand so that radio could broadcast and view the
race, then put out the results over the radio.
PF sued the station, as these actions by the broadcaster and neighbour obviously resulted in a downturn
of profits for the race park.
Argued actions constituted a nuisance – interference with the use and enjoyment of property.
Claimed interference with their proprietary right in spectacle conducted on their land.
Issues:
1. Could the pf claim a property right in spectacle?
(Dixon):
‘it is not because an individual has, by his efforts, put himself in a position to obtain value for what he
can give that his right to give it becomes protected by law and so assumes the exclusiveness of
property’.
(Latham):
unable to see any wrong being done. Any person could just look over the PF’s fence and would have
the same effect. “In my opinion, there is no property in a spectacle”.
No duty should be imposed not to look.
(majority): property is not created simply because an individual has expended labour. Not willing to
expand private property rights here.
Dissent (Evatt J):
The broadcasters ‘took everything and provided nothing’ whilst the pf expended capital and labour to
provide entertainment. Took line of Associated Press.
Df was reaping where he had not sown!
But there is still no property in spectacle.
However DF is still interfering with PF’s use and enjoyment of the land, therefore nuisance, as use and
occupation of property interfered with, business profits lessened, value of land diminished by dfs
activities.
The wrong was that the DF looked at the race in a way that reduced the PF’s profits.

Legislative response = Broadcasting Act.

Courts in Australia are not willing to say that property rights arise just by way of expenditure and
efforts. Contrast to US

3.2 Property in the human body?


In Australia, one person cannot have property rights in another living person. They can, however, have
property rights in other living things, such as plants or animals. What about rights to the human tissue
and the human body- should they be subject to property rights?
Moral issues obviously – like black market organ trading.

a. Dead Human Tissue


Uncertainty in this area. Is a corpse a thing? HC had to consider this in:

Eg. Doodeward v Spence (1908)


Did the pf have a property right in a still born child?
Feotus had 2 heads and had been preserved.
Using it for public display for profits.
Did the pf have property rights in this corpse?
(Held):
Yes he did, he had ‘special property’
Why?
(Griffith): If a person lawfully exercises skill to a human body, then the rights of possession will arise –
this protects specimens formed/maintained by scientific bodies.
But there are problems with some justifications.
How can a family enforce their rights to treat corpses of relatives as appropriate?
There are circumstances (medical purposes) where bodies are subject to property rights given consent
is involved. Eg “on my death, I wish for my body to be preserved for medical studies at UWA” – then
UWA will have property in body.

b. Living Human Tissue


Once something is removed from the body it can be the subject of property rights (Chambers)
People have been convicted of theft for stealing urine samples of others, etc. And people can sell their
hair.
BUT Chambers suggests that there should be a distinction between regenerating tissue (hair, nails) and
non regenerating tissue (kidney, lungs). Non regenerating tissue should not be capable of ownership as
this would result in legalised organ trading = bad public policy.

4. Protecting Property Rights

4.1 Protection afforded proprietary v. non proprietary rights


What protection is afforded to a proprietary right versus a non proprietary right?
This is the difference between rights in rem (rights in a thing) and rights in personum (rights as a
person).
The ability to establish a property right will impact significantly on the remedies made available to
you.

Eg. Cowell v Rosehill Racecourse (1937) CLR


Pf went to watch horse races.
Got abit rowdy
Then got ejected off property.
Df said the pf was trespassing
Pf said they were not trespassing, they were licensed to be on the grounds as PF paid 4 shillings to
enter and watch races, and was assaulted when he was forcibly removed.
Issue: was the PF a licensee or a trespasser?
Does paying money = a license to enter?

The right to see a spectacle has already been established as not sufficient to = a property right.
(Latham CJ):
“I cannot regard the transaction of buying a ticket for an entertainment as creating anything more than
a contractual right in the buyer against the seller- a right to have a contract performed”
Therefore the remedies for proprietary interests are not applicable in this case- this was an issue of
contractual rights and obligations.
The Pf has no ‘interest’ in the land. He argued that his interest here was seeing the race, which is not
enough to be a proprietary interest.
‘ if his license was effectually revoked, though wrongfully, he was a trespasser, and his removal
therefore does not = assault’!!
PF must show that the license was not effectually revoked to prove his not a trespasser.
(Evatt J- dissent):
Allowed the pfs appeal. He noted that though a court of law would treat the license in this case as
revocable, a court of equity should regard the licence as irrevocable. Accordingly, the D’s defence to
assault action, namely that the licence had been revoked, though good at law, would fail in equity.
Evatt J’s conclusion, which allowed for equitable intervention, was not based on a finding that the
‘right to see spectacle’ was property. Rather it was based on a broad and just principle of equity that the
ticket holder in this case should be entitled to remain until the conclusion of the performance.

(Held):
No grant of a proprietary right was given to the pf here- he simply obtained a contractual right which
was enforceable in personum and not in rem for damages.
Appeal dismissed. No proprietary right to the ‘spectacle’ of watching races.

4.2 Causes to protect proprietary interest


i. Trespass
ii. Conversion
iii. Detinue
iv. Other wrongs

4.3 Remedies

i. Direct enforcement
ii. Compensation
iii. Restitution

5. Recap – Tutorial One

Facts:
Archie: House owner next to park, “cashed in” on festival and sold tickets to his
house, projected a screen of festival, etc.
Cottesloe Council: Owns park
Double Y: Hires park for entertainment spectacle, at great expense.
Harry: works for music hype, ticket holder.
Removed by security because mistaken as drunken group member.
Finder of the valuable egg.
WA Museum: In possession of egg
Music Hype: Harry’s employer. Are they entitled to his find? Was it done during the
course of his employment?

Issues
1. Can there be property rights to:
(a) The Dinosaur Egg
(b) The Blast in The Park spectacle
2. Can Double Y obtain compensation from Archie for the lost ticket sales and the $20 000
archie made in profits in screening the festival from his backyard?
3. At the time Harry found the dinosaur egg, was he a trespasser or a licensee?
4. How would you classify Double Y’s occupation of the park?

1. Can there be property rights in:


(a) the dinosaur egg?
(b) The Blast in the Park spectacle?
Property law concerns the relationship between a person and a thing. Therefore for property principles
to operate there must be a thing and there must be a right in rem- enforceable against the whole world.
Some things cannot be the object of property rights, eg information, people.
Things like air and water are common property and thus capable of only public ownership (not private)

(a) The Dinosaur Egg:


Is the Dinosaur Egg capable of ownership? And if so, can Double Y claim ownership?
In Yanna v Eaton the court demonstrated that whilst legislation denoted the Crown had ownership in
all fauna, it was not ownership in the strict sense of the word- the crown only had the power to monitor,
protect, regulate and control fauna, not actually own it.
But the egg here is not a living thing, unlike the crocodiles in Yanna v Eaton.
Should that make it capable of being private property?
Or should the egg be public property?
For public policy reasons, one could argue that the egg, being of scientific importance, should only be
considered public property, so the state can control it and make sure it is available for all of the public
to enjoy. Therefore, the egg is an article capable of being private property, but the state would probably
legislate against this to ensure it could be enjoyed by the public.

(b) The Blast in the Park spectacle


Are spectacles capable of being subject to property rights?
Victoria Park Racing found that there could be no property in spectacle. But International News Press
held that unfair competition meant that news or information became quasi property, BUT it was only
considered this against other competitors, not the public as a whole. It is the case here that Archie is
‘reaping where he hasn’t sown’ when he takes advantage of his good location to sell tickets to his
home- Double Y created the spectacle and Archie is ‘stealing’ it.
What about copyright or intellectual property?
Literary, musical dramatic work do have characteristics that will prevent others from copying it. Could
Double Y argue that Blast in The Park is a dramatic work here?
However, overall the Australian courts have found that there can be no property in spectacle. Victoria
Park Racing proves this, and the case here is factually similar to the broadcasting of the racecourse in
VPR. Double Y would have to try and claim copyright of Blast in the Park, and to do so would have to
distinguish the facts of Victoria Park.

2. Can Double Y obtain compensation from Archie for the lost ticket sales and obtain from
Archie the $20 000 he made in screening the festival in his backyard?
Remedies for Double Y:
Damages? Double Y could possibly argue for damages by claiming Archie’s conduct constituted a
nuisance.
Other remedies? Double Y would have to prove the Blast in the Park spectacle constituted property to
claim property remedies. They would have to prove they suffered a loss????

3. At the time Harry found the dinosaur egg, was he a trespasser or a licensee?
Harry’s editor at Music Hype gave him the ticket for the festival.
He was evicted when he was mistakenly taken to be part of a drunken group of youths causing
disruption.
A trespasser is a person who enters land without permission, where as a licensee obtains permission by
way of purchase- here, the purchase of the ticket. This gives the licensee permission to stay on the land
for the duration of the festival- the time which he has purchased ???
While a license can be revoked, a license with a property interest cannot!
In Cowell v Rosehill Racecourse, did Cowell, the alleged trespasser, have a license that could be
revoked?
(Latham):
YES! Would be extraordinary to think that just buying a ticket is the equivalent to an interest in
property. In Cowell’s case, his eviction had been a breach of contract, not an interference with a
property right. ‘ if his license was effectually revoked, though wrongfully, he was a trespasser, and his
removal therefore does not = assault’!!
PF must show that the license was not effectually revoked to prove his not a trespasser.
(Dixon):
Dixon refined this- you don’t become a trespasser when your licence has been revoked, as you could
remove yourself. You become a trespasser when you’re asked to leave and you refuse to do so within a
reasonable time.
So if you follow Latham- Harry is a trespasser
Apply Dixon – Harry is not a trespasser.
This will depend on whether or not he has property rights – a finder’s rights will be weaker if at the
time of the find they were classified as a trespasser instead of a licensee.

4. How would you describe Double Y’s occupation of the park?


Is it a lease or a licence?
Court looked at this distinction in Radaich v Smith.
Lease = pay rent, ability to exclude others, exclusive possession = property right.
Licence = does not confer any interest in land, just mere permission to be on land. = no proprietary
interest.
Double Y would try and argue that they did infact have a lease over the park from the Cottesloe
Council, not just a licence. They could argue this by drawing attention to the fact that:
- They were selling admission tickets
- They had the ability to exclude others
- They had fencing, security, the power to evict and thus exclusive possession.