Académique Documents
Professionnel Documents
Culture Documents
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’
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.
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?
(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.
Property must relate to a thing, therefore extrinsic things are not capable of ownership? Is everything
external to a person capable of being property?
Courts in Australia are not willing to say that property rights arise just by way of expenditure and
efforts. Contrast to US
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.
4.3 Remedies
i. Direct enforcement
ii. Compensation
iii. Restitution
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?
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.