18072600: Sinead Cummins

200012: Property Law

The Concept of Property (Chp 1)

What is Property?

Advanced Western democracies private property predominates, some resources (e.g. parks,
beaches) treated as common property, accessible by all.
Private property in land established during colonisation & displaced Aboriginal system of
common ownership.
Property law category of private law governs relationship between legal entities with
respect to things.
Objects of property continuously changing in response to social conditions.
o Moore v Regents of the University of California (1990)
Are human cells or body parts property?

Difference between possession and ownership.

o Possession
Question of fact without principles of law.
Must prove that you have something.
o Ownership
Question of law examine circumstances + relationship between person &
object.
Whether relationship meets criteria of ownership.

Milirrpum Nabalco (1971)

o BLACKBURN J - defined property as:
The right to use or enjoy
The right to exclude others
The right to alienate (transfer)
o All dont have to coexist to establish a proprietary interest.

The right to use or enjoy

Yanner v Eaton (1999)

o GLEESON CJ, GAUDRON, KIRBY & HAYNE JJ
Property does NOT necessarily mean full, exclusive or beneficial
ownership.
Like in s 7(1) of Fauna Conservation Act 1952 (QLD) property does not
refer to a thing but a legal relationship to a thing.
Bundle of rights power permissibly exercised over the thing.

Wily v St George Partnership Banking Ltd (1999)

o FINKELSTEIN J
It is not necessary that the dominion of the owner be absolute or fixed.

The right to alienate

R v Toohey; Ex parte Meneling Station Pty Ltd (1982)

o MASON J
Assignability is not essential in all cases.
1

18072600: Sinead Cummins

200012: Property Law
Generally implied that a proprietary interest must be capable in its nature of
assumption by third parties.
Many examples of non-assignable property rights.
o Non-assignable lease Cohen (1964)
o Re Potter (decd) (1970) MENHENNITT J
Beneficiary under will held to have acquired a non-assignable right to reside
in a certain house for as long as they desired.
o Hamilton v Porta (1958)
statutory tenancy of tenant whose lease has expired, but remains to possess
pursuant to relevant legislation.
o NSW community land held by local councils for the community benefit declared by
statute to be inalienable.

The right to exclude

Property - private right exercisable against the general public (including the State).
Public rights - rights equally shared with other member of the public over land and goods
e.g. right to fish. (often conferred by statute)
Public ownership of utilities or industries - State owns assets on behalf of public to regulate
their use for public benefit.
Stow v Mineral Holdings (Aus) (1977)
o Distinguished between public rights and private property rights.
o All members of public have right to pass freely along/across public highways but
none, in their capacity as public members, have any estate or interest in the land.
o The fact some are more disposed that others, derive more benefit therefrom and use
the statutory right more often than others, does not elevate that which is a public
right enjoyed by all member of the public equally into a private right capable of
being described as an estate in the land.

Private law subdivided into 2 categories (i) property rights; (ii) obligations (personal
rights).
o Property rights are in rem (enforceable in respect of a thing)
o Personal rights are in personam (enforceable against a person).
Contracts, torts and unjust enrichment.

Property Rights and the Rights of Persons

Distinction drawn between property rights and personal rights not always easily drawn.
Personal rights rights a person has over their body.
o Right to protect/safeguard body protected by torts of assault + battery.
o Reputation protected by tort of defamation
o Privacy protected be legislation

Are person property?

A person cannot be property and so cannot be a thing which can be owned, for it is
impossible to be a person and a thing, the proprietor and the property. (Davies & Naffine,
2001)
2

18072600: Sinead Cummins

200012: Property Law

he that cannot take away his own life, cannot give another power over it. (Davies &
Naffine, 2001).

Property and body parts

Moore v Regents of the University of California ( 1990)
Court
Supreme Court of California
Principle: No action based on a theory of conversion may be prosecuted where the subject
matter of the allegation are excised cells taken from Plaintiff in the course of a
medical treatment; however, that an action may be based on theories of breach of
fiduciary duty or lack of informed consent.
Facts:
P was a cancer patient (leukaemia) at U.C.L.A. Medical Centre.

California statute - once a part of the human body is voluntarily removed it is

considered waste and therefore not the property of person it came from.

Ps spleen was removed during an operation.

University used cells from the spleen in an experimental treatment.

Moore did not consent to the use of his cells for scientific purposes.

Issue:
Held

The defendants established a cell line that could be reproduced and applied for a
patent to commercially develop the cell line.
Did Moore have a property right to his bodily cells and therefore a case of
conversion?
NO Moore had no property rights to his discarded cells/any profits from them.
Majority - PANELLI J
Tort of conversion occurs when personal property of one person is interfered
with by another with regard to possessory or ownership interests.
Statutory law drastically limits the continuing interest of a patient in excised
tissue.
The patented cell line was factually & legally distinct from cells taken from
Moore.
Rejected argument that a person has an absolute right to the unique products of
their body ad Moores products were NOT unique.
Extending property rights to include organs could have a chilling effect on medical
research.
Moore's interest in his bodily integrity and privacy are protected by the
requirement of informed consent, without punishing 3rd parties (researchers) or
creating disincentives to conduct socially beneficial research.
Dissenting MOSK J
Moore could have been denied some property rights and given others.
3

18072600: Sinead Cummins

200012: Property Law

At the very least, Moore has the "right to do with his own tissue what the
defendants did with it."
Moore had the right, once the tissue was removed, to either sell it to a
laboratory or have it destroyed.
Moore can only sue his doctor and nobody else for failing to adequately
inform him.

Human Tissue Act 1982 (VIC) s 38(1)

o a person shall not sell, or agree to sell, tissue (including his own tissue) or the
right to tissue form his body.
State legislation regulating donation of human tissue exclude foetal tissue, spermatozoa, ova
and fertilised embryos.
There is no right of property in a dead body Haynes case.
o Unless it has undergone some process or application of human skill (e.g. stuffing or
embalming).
o Doodeward v Spence (1908)
when a person has by lawful exercise of work or skill so dealt with a
human body in his lawful possession that it has acquired some attributes
differentiating it from a mere human corpse awaiting burial, he acquires a
right to possession of it
o Dobson v North Tyneside Health Authority (1996)
Court didnt extend principle to where a brain was removed and preserved in
paraffin following a post-mortem.
o R v Kelly (1998)
Body parts unlawfully removed from the custody of the Royal College of
Surgeons came within meaning of property.
Removal and preservation of these parts was achieved by application of
skill, e.g. dissection or preservation techniques, for exhibition or teaching
purposes.
o Pecar v National Australia Trustees (1996)
P wished to prove relation to a person who died interstate through medical
examination of the deceased tissue.
BRYSON J retention of autopsy specimens in a paraffin block
demonstrated the requisite standard of skill to give rise to property rights.
o Edwards; Re the Estate of Edwards (2011)
Woman sought possession of her dead husbands sperm which had been
extracted earlier by order of Supreme Court.
HULME J wife entitled to possession as an object of property relying on
Doodeward on ground that removal & storage of sperm required work and
skill to preserve it.

Property rights and privacy

In most cases, courts refuse to create new property rights, deferring to legislature.
4

18072600: Sinead Cummins

200012: Property Law

In some cases, courts have introduced new rights by incremental extension of existing
principles to novel situations.

Victoria Park Racing and Recreation Grounds Co v Taylor

Court
HCA
Latham CJ, Dixon, McTiernan JJ (MAJORITY) and Rich & Evatt JJ (DISSENTING)
Principle: There is no property right in a spectacle.

Before law will protect the right to a property under an action of nuisance, it must
be a natural right.

P owned Victoria Park (racing track), which charged admission to people who
placed bets on races.

Racecourse was surrounded by very high fence.

Taylor had a house and front yard adjacent to course.

Taylor allowed the radio broadcasting station 2UW to construct a 5 m high

platform on scaffolding form which someone could see into the course &
broadcast with binoculars races & info about horses.

This facilitated unregulated off-track betting.

Attendance at the ground plummeted.

Facts:

Issue:
Held

P filed for an injunction on basis of nuisance and breach of copyright.

Did Victoria Park have proprietary interest in the land and races and therefore
claim damages under nuisance and breach of copyright?
NO any person can describe what they see to another person/persons..

LATHAM CJ
There is no property in a spectacle.
o A spectacle cannot be owned and no such legal principle suggests so.
Nor could copyright be claimed in any information being posted on signs in the
park.
o Copyright law doesnt operate to give any person exclusive rights to state
or describe particular facts.
Recognised that there is no legal right to privacy. (analogy looking into a
neighbours window)
DIXON & MCTIERNAN JJ
There was no proof that nuisance had been brought upon the race track.
Nuisance involves interference with the enjoyment of the occupiers natural
rights (e.g. right to fence off/walk on property)
To broadcast a lawful description of the occurrences on premises is not an
actionable nuisance unless it causes substantial interference with the use and
5

18072600: Sinead Cummins

200012: Property Law

enjoyment of the premises.

Ps right was not a natural right for breach of which a legal remedy is given.
Building the platform was not an unnatural use of property, as it did not breach
any bylaws.

Property Rights and Civil Rights

Civil rights are rights to participate in public life, rather than exclude others from the
enjoyment of things (property rights).
Courts must balance civil & political rights that conflict with property rights.

Davis v Commonwealth (1988)

Court
HCA
Mason CJ, Dean and Gaudron JJ
Principle:
Facts:
Ps produced shirts with designs on them similar to designs owned by the Ds under
the Australian Bicentennial Authority Act 1980 (Cth).

Ps had already been refused consent by the authority to use symbols produced on
shirts.

Authority relied on s 22 of Act which made it an offence to use a symbol capable

of being mistaken for an official symbol.
Does the Act reasonably afford property rights in the design to preclude others
from using a similar design?

Issue:

Held

NO
MASON CJ, DEANE and GAUDRON JJ
Cth argued that its executive power and incidental power (s 51 (xxxix)
supports them as laws reasonably adapted to the purpose of facilitating and
protecting the attainment of the objects of the commemoration of the
Bicentenary and the objects of the Authority.
Judges stated that this suggested that the relevant exercise of executive and
legislative power is directed not to the commemoration of the Bicentenary as
such but to the attainment of objects lying beyond the commemoration itself.
The effect of the provisions [in the Act] is to give the Authority an
extraordinary power to regulate the use of expressions in everyday use in this
country, though the circumstances of that use in countless situations could not
conceivably prejudice the commemoration of the Bicentenary or the
attainment by the Authority of its objects.
The Act provides for a regime which is grossly disproportionate to the need to
protect the commemoration and the Authority.
The provisions unreasonably affect the civil right to free expression.

18072600: Sinead Cummins

200012: Property Law

Property Rights and Human Rights

As property rights include rights to exclude and enjoy, they may impact on public rights, or
human rights.
Although human rights are usually associated with political & personal rights, they also
embrace property rights.
o E.g. art 17 of UDHR (1) Everyone has the right to own property alone as well as
in association with others; (2) No-one shall be arbitrarily deprived of his property.
o E.g. art 1, Protocol No 1 of European Convention on Human Rights (ECHR)
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by general principles of
international law.
Ratification of an international human rights instrument does NOT mean those human rights
norms have domestic force as they are not automatically incorporated into Aus law.
Influence of HR principles on property law evident in European Union, where ECHR binds
members, particularly where it has been incorporated in municipal legislation.
o Connors v UK (2004)
Family of gypsies was evicted from local authority site by owner.
European Court of HR held there was insufficient procedural protections of
the familys rights in the local law as required by art 8 of convention.
Family was awarded compensation for loss of site.

The Traditional Classification and Terminology

Basic distinction in property law real property (land) and personal property (chattels).
Land is immovable rules governing its use differ from those for use of chattels.
Definition of land in Real Property Act 1900 (NSW) s 3
o Messuages, tenements, and hereditaments corporeal and incorporeal of every kind
and description or any estate or interest therein
Real property is general sub-classified into:
o Corporeal hereditaments
Rights of possession, or tangible real property (land).
o Incorporeal hereditaments
Lesser rights over land, or intangible real property (e.g. easement of way
which entitles the holder only to a right to walk across a certain piece of land
owned by another person)
Distinction focuses attention not on proprietary interests themselves but on the objects of
those interest (as land has unique characters of permanence and immovability).

Land, or realty

Distinction lies in remedies available at common law for recovery of tangible objects.
Real property if person dispossessed could recover object, it was classified as real property
(quality of being specifically recoverable in a real action).
Personal property (not so recoverable) person dispossessed has a personal action for
damages but NOT entitles to order requiring delivery of actual object.
7

18072600: Sinead Cummins

200012: Property Law

Boundaries of land

Right to air space above property

o Baron Bernstein of Leigh v Skyviews & General (1978)
GRIFFITHS J
Discussed right to airspace over a property.
Problem is to balance rights of an owner to enjoy the use of his land
against rights of the general public to take advantage of the use of
airspace.
HELD must restrict the rights of an owner in the air space above
his/her land to such a height as is necessary for the ordinary use and
enjoyment of his land & structures on it.
o LJP Investments v Howard Chia Investments (1989)
P obtained injunction requiring D to remove scaffolding protruding 1.5 m
into the air space above Ps property.
HODGSON J
No person should be permitted to use anothers land for considerable
personal gain, simply because his use of the land causes no
significant damage.
o Bendal v Mirvac Projects (1991)
Construction facilities and objects encroaching upon the airspace above
adjacent land constituted trespass if they were of the nature and at a height
which would interfere with any ordinary uses of the land which the occupier
may seem fit to undertake.
Right to below the surface of a property
o Bulli Coal Mining Co v Osborne (1899)
A person who mined coal beneath land of another person was held liable in
trespass.
Are rights to air space a transferrable proprietary interest?
o Uniting Church in Aus property Trust (NSW) v Immer (1991)
A and R contracted to transfer air space rights.
Rights were to construct buildings on land higher that would normally be
council permitted.
HELD rights were transferrable so contract for sale of rights was
enforceable.
o Depsun v Tahore Holdings (1990)
D agreed to sell building to P with ancilliary deed giving D benefit of
floating floor space rights.
HELD rights under deed were personal rights, despite their description as
proprietary rights in the deed.

Chattels, or personalty

One exception to distinction between real (immovable) and personal (movable) property is
leasehold interest in land.

18072600: Sinead Cummins

200012: Property Law

Lessees were limited to action for damages, as leases were seen as personal commercial
arrangement outside the feudal structure of landholding.
To accommodate leasehold interests, the category of personal property is divided into:
o chattels real
Covers leasehold interests & indicates personal nature of them and the fact
they are proprietary interests in land.
o chattels personal (or pure personalty)
Sub-classified into:
Choses in possession
Movable, physical objects (e.g. books or furniture).
Choses in action

Intangibles (e.g. patents, copyrights, shares and goodwill).